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A collection and application of the principles governing s. 50D of the Limitation Act, 1969 October 14, 2019

Pomare v Hogan (No 3) [2019] NSWSC 497: Adamson J

93 The focus of Division 6 is the knowledge of the plaintiff, not the plaintiff’s legal advisers. This distinction is significant in cases such as Kay v Sydney Airport [2014] NSWSC 744 where the solicitor, but not the plaintiff, knew, or ought to have known of certain matters which were contained in documents in her possession. As the defendant in that case, Alltrack GSE Pty Limited, could not prove that the plaintiff knew of what was contained in the documents until a considerable period after they were received by her solicitors, the defendant could not make out the limitation defence to the plaintiff’s claim. In Kay v Sydney Airport both the plaintiff, Ms Kay, and the solicitor, Ms May, gave evidence about their respective states of knowledge and what had been communicated to the plaintiff and at when it had been communicated. This evidence enabled a finding to be made that Ms Kay did not have the relevant knowledge and was sufficient to defeat the inference which would otherwise have arisen had that evidence not been adduced.

94 The “fault” of which the plaintiff must be shown have knowledge is legally actionable fault, not moral culpability: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 at [39] (Basten JA, Ipp and Macfarlan JA agreeing). 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 at [41].

95 It is of significance that s 50D does not import any requirement that, at the point at which the limitation period starts to run, the plaintiff’s claim have “reasonable prospects of success”. This requirement, which is imposed on legal practitioners, but not individual litigants, operates as a condition precedent to the commencement of proceedings: Legal Profession Uniform Law Application Act 2014 No 16, Sch 2. The requirement has several consequences, including relating to costs and disciplinary matters. By cll 2 and 4 of Sch 2, legal practitioners are prohibited from providing legal services on a claim or defence of a claim for damages or commencing proceedings on behalf of a client without reasonable prospects of success. The test is whether the responsible legal practitioner “reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success”: cl 2(1). A fact is provable only if the practitioner reasonably believes that the material then available to him or her provides a proper basis for alleging that fact: cl 2(2). A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim: cl 2(4).

96 It is also of significance that a putative plaintiff has three years from the date on which he or she knows, or ought to know of, the three matters specified in s 50D(1) to commence proceedings. It can be inferred that the legislature considered that this was both a reasonable and sufficient period to allow plaintiffs who had suffered personal injury to make whatever investigations were required, consult legal practitioners and do whatever else was required to commence proceedings if, on proper analysis, the prospects (which would have to be adjudged by a legal practitioner to be reasonable before a statement of claim could be filed) warranted it. It would do violence to the statutory language of Division 6 of Part 2 of the Act to import these latter considerations into a determination of when time begins to run.

97 Section 50D makes no mention of “provable facts” or material sufficient to allege a fact in, for example, a pleading. Nor is there any requirement that the plaintiff must have received advice that his or her claim has reasonable prospects of success. Nor does s 50D require the plaintiff to “be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise”: Baker-Morrison v State of New South Wales at [39], citing Drayton Coal Pty Ltd v Drain [1995] NSWCA 131. As the Court of Appeal said, at [39] in Baker-Morrison v State of New South Wales:

“It is the key factors necessary to establish legal liability which must be known.”

98 In Baker-Morrison v State of New South Wales itself, the plaintiff, who was then two years old, was injured when her fingers were caught in the automatic sliding door of the Gosford Police Station. The Court found that the key fact of which the plaintiff’s mother had to be shown to know, or ought to have known, was the availability and practicability of installation of a device to make the sliding door safe: [40]. The Court of Appeal found that this fact was essential for her to be aware that her daughter’s injury was caused by failure on the part of the State to take reasonable care for her safety: [40]. At [40] the Court said:

“The exercise undertaken by the State in the present case fell far short ofdemonstrating that the plaintiff’s mother knew, at the relevant time, of anysteps which could and should reasonably have been taken by the occupier ofthe premises to render the sliding door safe.” 

99 The Court addressed the meaning of “knows” at [45] as follows:

“In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person ‘knows’ (or ought to ‘know’) the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the subsection refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. Further, despite the inability to bring proceedings without a solicitor in a position to certify in accordance with the requirements of the Legal Profession Act, it is the knowledge of the plaintiff’s mother which is the focus of the statutory test.”

100 It can be seen from this passage that the question of knowledge is not to be answered by reference to the availability of admissible evidence but rather to the plaintiff’s belief that certain matters can be established. The statutory words are a sufficient indication of the legislative intention.

The key factors necessary to establish legal liability

101 In the present case the plaintiff was injured by a collision between a road train and a bull which had not been contained on the property to which it belonged. The plaintiff believed, prior to 15 April 2014, that the reason the bull was on the road was that the second defendant had left the gate open or that it had come open. The evidence reveals that the plaintiff understood that the second defendant had admitted as much to the police and when interviewed by the ABC. His belief, which is contained in a statutory declaration made by him in support of his motor accident claim, is sufficient to establish that he knew this to be the case for the purposes of s 50D of the Act. He has not given evidence that his belief changed as a result of anything that his solicitors advised or told him, or provided to him, or for any other reason. In these circumstances I can more comfortably draw the inference that this remained his belief at all material times (including in the period up to the relevant date and beyond). I do not accept Mr Stone’s contention that the plaintiff’s belief was based on “rumour”, “scuttlebutt” or information based on something someone heard at the “pub” since the plaintiff has not given evidence as to the source or basis for his belief, although inferences can be drawn that it was based in part on what he heard from Mr Hogan and from the ABC report. In the absence of evidence from the plaintiff, I do not infer that the plaintiff did not have any other source for his belief.

102 In so far as an evaluative judgment is required to determine whether the second defendant is at fault, it is necessary to consider basis of the second defendant’s legal liability to the plaintiff.

103 The owner of land on which animals graze owes a non-delegable duty to take reasonable care to prevent the animals escaping onto a highway. The duty owed to users of the highway, who had neither control over, nor knowledge of the condition of the fencing, was to ensure that the fences and gates were in a condition adequate to contain the animals: see Simpson v Blanch [1997] NSWCA 287 and the cases cited therein.

104 The rule in Rylands v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, which had the effect of making owners of animals strictly liable in certain circumstances for damage done to those affected when they were not constrained behind fences, was abolished in New South Wales in so far as it applied to damage caused by an animal by Part 3 of the Animals Act 1977 (NSW). It was abolished under the common law by Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 in which the High Court held that the general law of negligence applied. The Court addressed the question whether there were cases where a defendant would have been liable in accordance with Rylands v Fletcher but would not be found to be liable under general principles of negligence and concluded that, because of numerous qualifications to the so-called “rule”, the results in each instance would be no different. The plurality in Burnie Port Authority v General Jones Pty Ltd analysed the question of liability by reference to concepts of control and vulnerability which were considered in Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61.

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