Section 50C of the Limitation Act 1969 has a 3-year limit for a plaintiff to commence a personal injury claim from the date that the cause of action was ‘discoverable’.
Section 50D of the Act says the cause of action is discoverable when the claimant knows or ought to know of the fact that:
- the injury or death concerned has occurred,
- the injury or death was caused by the fault of the defendant,
- the injury was sufficiently serious to justify the bringing of an action on the cause of action.
Where the claimant ‘ought to know’ of the facts
The 2009 Court of Appeal decision in Baker-Morrison v State Of New South Wales [2009] NSWCA 35 had considered when the plaintiff (by her mother) ought to have known the cause of action was discoverable.
The 2-year-old plaintiff had part of some of her fingers amputated after they were caught in a sliding door at a police station. The Court of Appeal accepted that the mother knew of the injury, but did not know the injury was caused by the fault of the State or that the injury was sufficiently serious to commence proceedings.
The mother was not aware of these facts until obtaining an expert report on liability and damages, and time did not start running until she obtained those reports.
Where the plaintiff knew of the facts
In the 31 March 2023 Court of Appeal decision in Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58 the Court concluded that the plaintiff knew of the 3 facts soon after the accident. The plaintiff’s push bike had collided with orange barricades on the side of the road.
During cross examination, the plaintiff accepted that he didn’t need a lawyer to know who was responsible for the road works and the barrier, he knew he had suffered an injury, he knew the accident had occurred because there was insufficient lighting, he knew the party responsible for the accident and the identity of the defendant.
The accident occurred in January 2017 and by mid-February 2018 he had seen a neurologist, and said that he had seen a solicitor, learned that this would be a third party insurance claim and had already notified the defendant of the claim.
The plaintiff/appellant’s submission that:
“the cause of action is not discoverable whilst ever the matter is in the hands of solicitors”
was not accepted, and the Court of Appeal, which held:
“Whatever the solicitors may have thought necessary by way of obtaining confirmation or evidence to support the plaintiff’s claim, none of this material contradicted the factual proposition that the appellant had known from the time of the accident who was responsible.”
The enquiries for proving that a plaintiff knew of the injury include:
- the medical records and references to pursing a claim;
- the date of the demands to the defendant; and
- careful cross examination forcing the plaintiff to concede their knowledge of the relevant facts to show the date that the 3 facts were actually discoverable.
If you have a query relating to any of the information in this case note, or would like to speak with a member of Holman Webb’s Insurance Team in relation to a separate matter, please don’t hesitate to get in touch with Partner Peter Bennett today.