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Discoverability: limitation of actions May 15, 2020

Best v Rosamond [2020] NSWCA 90

32 The primary judge held that even if his Honour were to believe the appellant’s evidence that he began to struggle from the emotional impact of the assault only later, in October 2015, this did not address the critical question:

“[35] … But for reasons I have referred to, in my view, Mr Best had enough knowledge (for the purpose of s 50D(c)) of the material facts to lead a reasonable person in the position to believe he had a potentially good claim for a not insubstantial sum of damages. A potential claim for a claim for mental harm, not known prior to 17 August 2015, may have inflated the quantum, but it did not detract from a finding that, [had] Mr Best taken reasonable steps to obtain legal and medical advice prior to 17 August 2015, he would have known that his injury was sufficiently serious as to justify bringing an action on the cause of action which (by reason of his admission of the knowledge of facts in s 50D(1)(a) and (b)) Mr Best knew was available against Mr Rosamond.”

33 No persuasive reason was advanced to suggest why that finding was incorrect.

34 These findings of fact provide a firm foundation for the ultimate conclusion of the primary judge that, acting reasonably, the appellant’s cause of action was discoverable within the meaning of ss 50C and 50D prior to 17 August 2015.

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