Judgment date: 3 August 20091
Frizelle v Bauer  NSWCA 239
- For the purposes of s 50C of the Limitation Act 1969 proceedings in respect of a cause of action must be commenced within 3 years of the date on which the cause of action was "discoverable".
- A cause of action will held to be "discoverable" in circumstances where the plaintiff has been given advice that their claim has reasonable prospects of success and where the plaintiff appreciates the fact that their injuries were sufficiently serious to justify bringing a cause of action, even when future treatment in respect of an injury is anticipated.
Background and Circumstances
On 2 July 2003 the plaintiff fractured her left kneecap when she fell at rented premises. At the time of the fall the plaintiff was attempting to negotiate a staircase which did not have a handrail on either side. She underwent a knee reconstruction shortly after her accident at the Royal Prince Alfred Hospital.
The plaintiff sought legal advice on 17 July 2003. She did not file a Statement of Claim until 4 April 2007, being 3 years and 9 months after her accident. Accordingly, the relevant date for the purposes of s 50D was therefore 4 April 2004 and if the plaintiff's cause of action was discoverable before this date the claim would be statute barred.
The plaintiff initially attempted to commence proceedings by filing a Summons in the District Court on 19 October 2006 seeking an extension of time within which to commence the proceedings. The Summons was misconceived as no extension of time is available under s 50C of the Limitation Act.
Section 50C provides that proceedings in respect of a cause of action must be commenced within 3 years of the date on which the cause of action is "discoverable". Accordingly, the question before the Court was whether the proceedings were commenced within three years of the cause of action being discoverable.
The operation of s 50C is conditional upon the criteria contained in s 50D, which provides as follows:
"50D date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person."
District Court Decision
The plaintiff made an application that the question of whether the proceedings were commenced within time should be determined as a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005.
The Summons was heard by McGrowdie ADCJ who held that proceedings had not been commenced within three years of the date on which the plaintiff's cause of action was discoverable..
In finding that the plaintiff had not commenced proceedings within time, his Honour held:
"The conclusion I have reached is that it is more than three years before the filing of the Statement of Claim that the plaintiff knew all three matters in s 50D(1). To my mind the nature of the injury and the likelihood of some further surgery, albeit relatively minor surgery, the possibility of the development of arthritis, the development of the crunching and the substantial impact on her employment were such as would to the mind of a reasonable person have led to the conclusion that the injury was sufficiently serious to justify the bringing of an action on a cause of action prior to a date three years preceding the actual date upon which this Statement of Claim was filed."
The plaintiff appealed submitting that McGrowdie ADCJ had erred in not finding that the proceedings had been commenced by the filing of the Summons. This ground was not pursued in oral argument.
Basten JA delivered the unanimous judgment and noted that the primary basis of the plaintif seeking leave to appeal was the suggestion in her Affidavit that she did not believe that her injury was sufficiently serious to justify the bringing of the action because of the advice received from her solicitors.
The plaintiff had been cross examined about the suggestion made in her Affidavit. It was put to the plaintiff in cross examination that there was no suggestion by her solicitor that she could not commence proceedings because her injuries were not so serious. In response the plaintiff conceded that there was no such suggestion, and that she simply had to wait until her injury could be evaluated and whether or not she needed to have another operation.
Senior Counsel for the plaintiff submitted that the trial judge did not apply the correct construction of s 50D as set out by the Court of Appeal in the decision of Baker-Morrison v State of New South Wales2, which was handed down after McGrowdie ADCJ handed down his decision. Failure to apply the appropriate test was not pursued in oral argument and instead the plaintiff focussed on the operation of s 50D(1)(c) and whether the plaintiff knew that her injury was sufficiently serious to justify the bringing of an action on the case of action. In response Basten JA stated as follows:
"There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the "fault" of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at . Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case.
The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt."
In dismissing the application for leave to appeal Basten JA concluded as follows:
"There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind. According to Baker-Morrison, the terms of s 50D(1) may not be engaged: see, Baker-Morrison at . That, however, is not the present case and the correctness of that view does not arise.
In substance, his Honour's analysis of the evidence suggests that the delay in commencing proceedings was in part due to the dilatoriness of the applicant in maintaining contact with and providing information to her solicitors, and partly the dilatoriness of the solicitors."
In some circumstances the criteria in s 50D may only be satisfied where the plaintiff has obtained medical and legal advice, however this is not always the case. Whether a matter calls for medical and legal advice to fulfil the criteria set out in s 50D is of course dependent on the particular facts of each case as demonstrated by the two earlier decisions of the Court of Appeal in Baker-Morrison v State of New South Wales and Bostik Australia Pty Limited v Liddiard & Anor3.
As a general rule a cause of action will be held to be discoverable when a plaintiff receives legal advice that he or she has a good cause of action and in circumstances where the plaintiff appreciates the fact that their injuries are sufficiently serious to justify the bringing of a cause of action even when ongoing future treatment is indicated.
It remains to be seen how the courts will deal with claims where a plaintiff has taken all reasonable steps to ascertain the facts set out in s 50D but, because of incorrect advice, fails to commence proceedings.
1 McColl JA; Basten JA
2 (2009) NSWCA 35
3 (2009) NSWCA 167
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