It is common ground that the matters in s 50D(1)(a) and (c) were discoverable prior to 5 December 2010. The issue is whether Mrs Smith knew or ought to have known of the fact that her late husband’s death was caused by the fault of the defendant before that date: s 50D(1)(b).

Although the Act speaks in terms of a “fact”, the fact in s 50D(1)(b) is one in respect of which a “legal evaluative judgment appears to be required”: Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454 (Baker-Morrison) at [41] per Basten JA, Ipp and Macfarlan JJA agreeing. Accordingly, the “fault” in s 50D(1)(b) is legally actionable fault, as distinct from moral culpability: Baker-Morrison, per Basten JA at [39].

Section 50D must be read in a broader context, which includes s 347 of the Legal Profession Act 2004 (NSW), which requires a solicitor to certify as to the reasonable prospects of success of a claim for damages: per Basten JA at [43].

In the present case, I am satisfied that, until she received advice from Mr Wilson to that effect on 17 December 2010, Mrs Smith did not know that she had a claim under the Compensation to Relatives Act as a dependant of a person who had died, allegedly as a consequence of another’s negligence. For the purposes of “fault” in s 50D(1)(b), a defendant must establish that the plaintiff knew that the matter was legally actionable: Gillett at [97] per Beazley JA.