Don’t let the litigation clock stop: The Limitation Act and Best v Rosamond [2020] NSWCA 90

When does a plaintiff "ought to know" the fact that the injury suffered was sufficiently serious to justify the bringing of an action pursuant to s 50D(1)(c) of the Limitation Act 1969 (NSW). Find out what the Court of Appeal decides in Best v Rosamond.

 

Author: Demi McGowan
Judgment date: 12 May 2020
Citation: Best v Rosamond [2020] NSWCA 90
Jurisdiction: NSW Court of Appeal

Principles


  • The steps necessary to satisfy the test of “all reasonable steps” under s 50D(2) of the Limitation Act 1969 (NSW) identified in Baker-Morrison are flexible, and in most circumstances instructing solicitors remains sufficient to ascertain the facts identified in s 50D(1). The failure to do so will not assist a plaintiff who has actual knowledge that he or she has suffered a "serious injury".
  • The existence of an additional claim for mental harm does not detract from a finding that had a prospective plaintiff sought legal and medical advice prior to the relevant date, they would have been advised the injury was sufficiently serious to justify bringing of an action.

Background


  • On 9 January 2015, Mr Rosamond assaulted the plaintiff by punching him in the face and injuring his eye. The plaintiff commenced proceedings on 17 August 2018 more than 3.5 years after the assault.
  • The trial judge found that the plaintiff had undergone two surgical treatments to his left eye in early February 2015 as a result of the assault and gave a statement to the Police in which he said he had a permanently dilated left pupil and damaged nerves arising from the assault. The trial judge therefore found that the cause of action was "discoverable" within the meaning of ss 50C and 50D of the Limitation Act 1969 (NSW) prior to 17 August 2015 (three years before the proceedings were commenced) and therefore was statute barred.
  • The principal matter on appeal was whether the trial judge erred in the finding that the plaintiff ought to have known that prior to 17 August 2015, that the injury he suffered was sufficiently serious to justify the bringing of an action for assault (see: s 50D(1)(c)).

Decision

The Court of Appeal upheld the trial judge’s decision and found that the plaintiff's claim was discoverable prior to 17 August 2015 (the relevant date). In dismissing the appeal, Payne JA who delivered the unanimous judgment of the court agreed with the trial judge's finding that the steps taken by the plaintiff were inadequate and that reasonable steps to obtain legal and medical advice ought to have been undertaken prior to the relevant date.

The need to seek medical and legal advice and information is an objective test by reference to the opinion of a reasonable person and "litigious exuberance"1 is not the standard required by the legislation. Payne JA in a unanimous judgment of the court held that the trial judge applied the correct test in ss 50C and 50D whereby, the standard required by the legislation that the plaintiff must know or "ought to know" in the case of injury, is the fact that the injury was "sufficiently serious" to justify the bringing of an action. Despite having knowledge of the serious injury he had suffered, the plaintiff failed to instruct solicitors and since the matter was a relatively straightforward action in assault, Payne JA agreed that it is likely that his solicitor would have informed the plaintiff that he had a reasonably arguable action for damages. He also held the trial judge was correct to conclude the fact that the plaintiff claimed to only struggle from the emotional impact of the assault after the relevant date did not address the critical finding that had the plaintiff taken reasonable steps to obtain legal and medical advice prior to 17 August 2015, he would have known that his injury was sufficiently serious to justify bringing an action.

Why this case is important

For the purposes of s 50D(2), the court must determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This is an objective test and the fact that a person does not seek legal advice may be fatal to his or her claim in seeking to argue they did not have the requisite knowledge.

The Court of Appeal's decision should be read in the context of the matter being a relatively straightforward action in assault and that the matters under s 50D(1)(a)-(b) were not in issue as the plaintiff knew the injury had occurred and that the injury was caused by his close friend, Mr Rosamond. Accordingly, the matter can be distinguished from the recent Court of Appeal's decision in Pomare v Whyte [2019] NSWCA 317, as Pomare largely turned on whether the plaintiff knew or ought to have known the "fact that the injury… was caused by the fault of the defendant" under s 50D(1)(b) which was not in issue in this case.


1 Ditchburn v Seltzam Ltd (1989) 17 NSWLR 697 at 704.

Contributors

Demi McGowan Lawyer