Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: State of New South Wales v Gillett [2012] NSWCA 83
• Hearing dates: 1 December 2011
• Decision date: 13 April 2012
• Before: Beazley JA at [1]; McColl JA at [112]; Campbell JA at [113]; Young JA at [132]; Whealy JA at [133]

Decision

1. Grant leave to appeal;

2. Appeal dismissed;

3. The applicant/State to pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: CIVIL PROCEDURE - pleadings - whether State permitted to raise limitation defence - Limitation Act 1969, ss 50C and 50D; LIMITATION OF ACTIONS - negligence - date on which cause of action "discoverable by plaintiff" - whether plaintiff aware that injury "caused by fault of the defendant" - meaning of "fault" - whether Baker-Morrison v State of New South Wales correctly interpreted the meaning of "fault" for the purposes of the Limitation Act 1969, s 50D(1)(b) - cause of action not discoverable until plaintiff received advice that defendant legally liable for injury; STATUTORY INTERPRETATION - Limitation Act 1969, s 50D - "fault"
• Legislation Cited: Civil Liability Act 2002; Civil Liability Amendment (Personal Responsibility) Act 2002; Civil Liability Amendment (Personal Responsibility) Bill 2002; Costs in Criminal Cases Act 1967; Crimes Act 1900; Crown Proceedings Act 1988; Director of Public Prosecutions Act 1986; Interpretation Act 1987; Legal Profession Act 2004; Limitation Act 1969; Limitation of Actions Act 1958 (Vic); Police Act 1900; Uniform Civil Procedure Rules 2005
• Cases Cited: A v The State of New South Wales [2007] HCA 10; 230 CLR 500; Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454; Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167; Cassis v Kalfus [2001] NSWCA 460; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Dedousis v Water Board [1994] HCA 57; 181 CLR 171; Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; 154 CLR 234; Drayton Coal Pty Limited v Drain (NSWCA, 22 August 1995, unreported); Frizelle v Bauer [2009] NSWCA 239; Gett v Tabet [2009] NSWCA 76; 254 ALR 504; Hawkins v Clayton t/as Clayton Utz & Co (1986) 5 NSWLR 109; Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298; (2001) 52 NSWLR 350; Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27; Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262; Sola Optical Australia Pty Ltd v Judith Ann Mills [1987] HCA 57; 163 CLR 628; Spandideas v Vellar [2008] VSC 198; Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514
• Texts Cited: Review of the Law of Negligence Final Report, September 2002
• Category: Principal judgment
• Parties: State of New South Wales (Applicant); Nathaniel Gillett (Respondent)
• Representation: P Menzies QC; B K Nolan (Applicant); Dr C Birch SC; M J Perry (Respondent); Crown Solicitor (Applicant); De Luca Leonard Solicitors (Respondent)
• File Number(s): 2008/289548

Decision under appeal

• Citation: Nathaniel Gillett v State of New South Wales
• Date of Decision: 2010-10-22 00:00:00
• Before: Barr AJ
• File Number(s): 2008/289548

Judgment

1 BEAZLEY JA: The respondent was a senior member of the New South Wales Police Service (the Police Service). On 24 October 2008, he commenced proceedings against the State of New South Wales (the State) claiming damages for an injury that he alleged he had suffered as a result of a negligently caused workplace psychiatric injury. Pursuant to leave granted by Schmidt J on 29 May 2009, the respondent amended the statement of claim to allege a breach of statutory duty.

2 The State was sued on the basis of vicarious liability for the New South Wales Police Service.

3 The respondent's negligence claim was based on the single allegation of the failure of the Police Service to disclose to the Director of Public Prosecutions (the DPP) all relevant information and documents obtained during an investigation of the respondent's conduct, which preceded his being charged with a number of criminal offences. The alleged breach of statutory duty was the failure of the Police Service to discharge its obligations under the Director of Public Prosecutions Act 1986, s 15A, to disclose to the DPP all relevant information and documents obtained in the investigation that might assist the case of the prosecution or the defence. The obligation is a continuing one until, relevantly, the prosecution is terminated or the person is either convicted or acquitted. The respondent's complaint is that the Police Service failed to disclose documents that assisted his case.

4 The circumstances giving rise to the respondent's claim occurred in 2003. The State, in its defence, denied the negligence alleged and the breach of statutory duty. The State also pleaded that the claim was not maintainable because it had been commenced after the expiration of the limitation period: see the Limitation Act 1969, ss 50C and 50D.

5 On 3 August 2010, the State filed a notice of motion seeking an order that the proceedings be stayed permanently on the basis that the respondent's claim was not maintainable by virtue of the Limitation Act, s 50C. The State sought, alternatively, an order that the issue as to whether the respondent's claim was statute barred be determined as a preliminary question pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 28.2.

6 On 7 October 2010, the respondent filed a notice of motion in which he sought an order that the State's defence under the Limitation Act be struck out.

7 The notices of motion were heard by Barr AJ on 22 October 2010. His Honour ordered that the limitation question be determined as a separate question, but otherwise dismissed the State's notice of motion. His Honour, on the respondent's motion, ordered that the limitation defence be struck out.

8 The State seeks leave to appeal from his Honour's orders, other than the order that the question be determined as a preliminary question. The matter has been listed for a concurrent hearing of the summons for leave to appeal and if leave is granted, the appeal. The argument proceeded before the Court as if on appeal. In my opinion, leave should be granted. The effect of his Honour having struck out the limitation defence means that the State is precluded from raising that as an issue in the proceedings in circumstances where there has not been a full hearing on the facts.

9 The respondent filed a notice of contention in which he contended that his Honour's judgment should be affirmed on the basis that:

"His Honour ought to have, at least in the alternative, reasoned that the Respondent/Opponent did not, at any relevant time, have the necessary state of mind, and therefore s.50D(1) was not engaged because:

(a) the legal advice given by the legal practitioner for the Respondent/Opponent (given between on or about 29 July 2005 and on or about 21 September 2005) was wrong; and/or

(b) he was not told, by those legal practitioners, of the fact that the Police failed to disclose to the Director of Public Prosecutions all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for [the Respondent] who was accused of the criminal charges."

10 The State has given notice that it challenges the correctness of the decision of this Court in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454. For that reason, a court of five judges was empanelled to hear the matter. In order for the Court to overturn a previous decision of its own, it must be satisfied that the earlier judgment is clearly wrong: see Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Gett v Tabet [2009] NSWCA 76; 254 ALR 504.

11 The State also contended that even if Baker-Morrison v State of New South Wales is not overruled, the limitation defence should have been determined in its favour. It seeks an order from this Court, as sought on the notice of motion, that the proceedings be permanently stayed.

The legislative scheme

12 The Limitation Act Pt 2 Div 6 applies to a cause of action for damages relating to personal injury to a person, regardless of whether the claim for the damages is brought in tort, contract, under statute or otherwise. The question in issue in this case is whether the respondent's claim was brought within the limitation period and involves the proper construction of ss 50C and 50D. Those provisions provide:

"50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note: The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

...

50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person ..."

Background facts

A The prosecution

13 In October 2003, the respondent, who was then a serving senior police officer, was charged with an offence of common assault, two charges of "act with intent to pervert the course of justice" contrary to the Crimes Act 1900, s 319 and a corruption charge under the Police Act 1900, s 200(2). His trial on those charges commenced in the District Court before Patten DCJ and a jury on 7 June 2004.

14 After the conclusion of the evidence of the first witness Constable Farrelly, the Crown Prosecutor conceded that there was no evidence capable of establishing a prima facie case. The Crown Prosecutor explained to his Honour that the DPP did not have in its possession certain material shown to Constable Farrelly in cross-examination at the time it advised that there was sufficient evidence to charge the respondent.

15 The Crown Prosecutor informed his Honour that he had instructions to offer no further evidence and invited his Honour to direct the jury to acquit the respondent on all three counts. The jury were directed by his Honour to return a verdict of 'not guilty' in respect of each of the three charges and the respondent was discharged.

16 The respondent made an application for costs to his Honour pursuant to the Costs in Criminal Cases Act 1967. The outcome of that application is not relevant to the issues presently before this Court. However, in the course of that application, submissions as to why the prosecution was withdrawn were made to the Court which provides some material background to the respondent's claim against the State.

17 In his submissions, the respondent's counsel referred to the documents upon which Constable Farrelly had been cross-examined and which had led to the collapse of the prosecution. Those documents were:

(i) A report made by Constable Farrelly to Inspector Wood dated 21 April 2003 (MFI 1).

MFI 1 had been produced by the prosecution the previous day when the respondent had called for its production.

(ii) A statement made by Constable Farrelly in relation to the prosecution of Reid (MFI 2).

MFI 2 had been served upon the respondent prior to trial. The respondent's counsel informed the Court the respondent's legal representatives understood that MFI 2 had been served upon them with the knowledge of the DPP and, even if that was not the case, it had been served on the respondent by those connected with the Police Service or the prosecution in the matter. The Crown Prosecutor accepted the correctness of this information.

(iii) A report made by Constable Farrelly to Inspector Gaskin and a series of questions and answers attached to that document (MFI 3).

Constable Farrelly stated in his evidence that the material in MFI 3 had had been incorporated into MFI 4.

(iv) Constable Farrelly's statement dated 15 July 2003 (MFI 4).

An unsigned copy of MFI 4 had been produced by Constable Farrelly during the course of cross-examination. The prosecution produced the signed document when asked for by the respondent's counsel.

18 The Crown Prosecutor gave the following explanation to the Court as to the Crown's knowledge of this material and in particular, MFI 1:

"For abundant caution ... at about 3 o'clock yesterday afternoon when my friend called for the report made by Constable Farrelly to Sergeant Wood [MFI 1] I had not been aware that any such document existed. It was only after indeed inquiries suggested at no stage during the consideration of this matter has any such statement by Constable Farrelly to Sergeant Wood or indeed by the next prospective witness, Constable Kelly to the same officer ever been provided to the DPP at any stage during the consideration or preparation of the matter. It came into my hands about 30 seconds after my solicitor got it from the police informant yesterday afternoon. Then it was shown to my friend ... Indeed, I had also been unaware that Constable Farrelly, Constable Kelly or indeed [the respondent] had ever put pen to paper in respect of the allegations against Mr Reid ... I had my solicitor inquire of Inspector Gaskin the officer in charge as to whether any further statements existed and, I think about five to 10 I was given a copy of the brief which on my instructions that officer Gaskin only came into possession of at around March or April this year, well after the proceedings were instituted."

B The respondent's Hurt on Duty application

19 The respondent submitted a Hurt on Duty claim on 9 October 2003, citing agitated depression arising from the internal affairs enquiry into his conduct. He was certified medically unfit for duty from 23 October 2003 until 28 July 2004. On 5 August 2004, two months after the charges against him were withdrawn, the respondent's Hurt on Duty application was approved. In October 2004, the respondent applied for a medical discharge from the Police Service. In November 2004, Dr Selwyn Smith, psychiatrist, diagnosed an adjustment disorder with depressed and anxious mood. The respondent was medically discharged from the Police Service on 8 April 2005.

C The legal advice

20 The respondent first sought legal advice in April 2005 when he wrote to solicitors, Walter Mann Jenkins, as follows:

"... I feel that I have been unjustly and severely mistreated by the Police Service and D.P.P, when I was charged and committed for trial on the 7th of the 6th 2004.

It was quite evident that the Police Service and the investigator (Gaskins) failed to disclose vital evidence to the crown and continued to pursue a case against me.

It is also evident that the Crown had neglected to obtain all the evidence that should have been a normal practice prior to prosecution.

It is evident there was no real complaint to Sgt. Woods, only a probationary constable seeking advice. It is evident that the three police, Farrelly, Kelly and Warren had a number of meetings, conspiring against me, and what evidence they would give in court against the offender Reid. Evidence given by Reid under oath was that he was sprayed on the way back to the police station for trying to escape ... you are quite aware of all the other evidence involved in my case.

Family and myself have suffered severely by this incident, mentally, physically and financially. After 37 years of dedicated police service I have been grossly mistreated.

The Police Department has accepted this incident as hurt on duty, which would indicate that they have recognized the incident. And as a result I have been pensioned off.

... I now request that you obtain a ruling from counsel as to further civil action that may be available to me. I have made applications to the Police Association for financial assistance to obtain a ruling."

21 On 17 June 2005, counsel was briefed to provide an opinion as to the availability of a claim, such as malicious prosecution against the Police Service and the merits or otherwise of commencing proceedings. In the observations to counsel, the respondent's solicitors stated that during the course of the trial, requests were made to the Crown to produce the internal reports and other documents that had been created in the course of the internal police investigation into the respondent's conduct. A comparison of that material and the witness statements demonstrated significant inconsistencies between the two. The solicitors noted it appeared that the Crown had not been provided with the internal reports and documents prior to the commencement of the trial.

22 Counsel's written opinion was provided on 27 July 2005 and raised two possible causes of action against "the prosecutor" arising from the factual circumstances in respect of which he was briefed: one in assault and the other for malicious prosecution. Counsel advised that the action in assault had no prospects of success and that an action for damages for malicious prosecution had no reasonable prospects of success. In giving his opinion, counsel stated:

"... We do not know what documents, if any [the inspector] sent to the DPP when he sought advice. At the trial, Mr Gillett's counsel called for the signed reports that [the inspector] obtained, as summarised above. [The Crown Prosecutor] had signed the indictment that was preferred at trial. It carried slightly different charges to the draft indictment. [The Crown Prosecutor] indicated that neither he nor his instructing solicitor from the office of the DPP had seen the reports to [the inspector]. (see trial transcript at T 39.47)

The impression is left that [the inspector] did not pass on the reports to the DPP when seeking advice as to whether it was appropriate to charge Mr Gillett. Those documents were certainly not in the brief of evidence served prior to the committal hearing. There is a letter on file from Mr Gillett's solicitors to Mr Baker of counsel dated 29.1.04 enclosing those documents, and noting that the firm was 'served with the following documents by [the inspector]'. The trial commenced on 7 June 2004.

Whatever was the situation at the time the DPP's advice was obtained, it seems exceedingly likely that if [the inspector] was formally serving those documents on the accused, he also provided them to the DPP. If he did so, it seems odd that [the Crown Prosecutor] was unaware of them. A number of possibilities arise. Bureaucratic bungling cannot be ruled out. I think that the logical course to take is to assume the [the inspector], at some stage, provided the documents to the DPP."

23 Counsel's advice was that there were no prospects of success of a claim for assault and no reasonable prospects of success in respect of a claim for malicious prosecution. The respondent did not, at that time, commence proceedings.

D Steps taken after legal advice provided

24 The history thereafter is contained in his Honour's reasons. In a slightly abbreviated form that history was as follows:

"13 On 21 September 2005 Mr Gillett's solicitor wrote to him confirming his view that counsel's opinion that there were no reasonable prospects of success in an action for malicious prosecution was correct.

14 During 2006 Mr Gillett asked his solicitor to return counsel's brief to him and his solicitor did so under cover of a letter of 1 June 2006.

15 On 26 July 2006 the Police Integrity Commission wrote to Mr Gillett informing him that it would not investigate his complaint but was sending it to the New South Wales Police Service to be considered.

16 On 25 July and 31 August 2006 Mr Gillett wrote further letters to his solicitor setting out in considerable detail complaints he had against a number of police officers who were concerned with or close to the arrest and the inquiry out of which the charges arose, asserting that the Internal Complaints Committee had made a serious misjudgment on the evidence reported and that the inspector had unlawfully misled the judicial system. In the letters Mr Gillett reported things that individual police officers had said to him about other police officers and what they had said, but the letters do not seem to contain significant material that was not known about when the brief was sent to counsel for advice.

17 In September 2006 Mr Gillett was contacted by the Professional Standards Manager of the Central Metropolitan Region of the Police Service and informed of the name of the officer who would manage the investigation. He responded with a letter to the Professional Standards Manager repeating his concerns about the investigation and the prosecution, criticising one of the police officers who had been present at the arrest and concluding with criticism of another senior police officer.

18 In mid 2007 Mr Gillett was informed that the investigation into his complaint had concluded. A senior officer telephoned him and told him that the report had been done and that his complaint could not be sustained. He was told that he could apply for a copy of the report. However, he was unable to obtain a copy and had to go to a lot of trouble to try to do so. Ultimately he only ever obtained a copy much of the substance and detail of which had been deleted.

19 In his Affidavit sworn on 9 June 2010 Mr Gillett said this -

In March 2008 I felt agitated about the lack of a claim and the lack of evidence to ground a claim, enough to speak to my neighbour [a solicitor] about it. Her name is Moya de Luca-Leonard (Moya).

In about mid March I saw my neighbour Moya [who] said to me words to the effect: 'I profess no expertise in criminal law. I cannot assist you. However I could invite you to see a Barrister who may be able to assist educating you; for you to revisit the question of what evidence you can and need to get for a claim.'

20 In April 2008 Mr Gillett and Ms De Luca-Leonard consulted another counsel.

21 Mr Gillett pressed his solicitor (the original one) to press the claim he had made for compensation for pain and suffering, and that was done. At about the end of July 2008 the solicitor wrote to Mr Gillett informing him of the result. Mr Gillett thought that the amount awarded was too low.

22 He spoke to Ms De Luca-Leonard about it and she invited him to come to her office for a conference. Mr Gillett obtained his papers on the pain and suffering claim from the office of his solicitor and took them to Ms De Luca-Leonard's office for a conference.

23 At about the same time Mr Gillett expressed concerns to Ms De Luca-Leonard about evidence the Crown wanted him to give in an important criminal trial that was current or imminent, and Ms De Luca-Leonard advised him to see Dr Smith, the psychiatrist, and asked him his view on the matter.

24 Mr Gillett made his documents available to Ms De Luca-Leonard over a period of time.

25 During September and October 2008 Ms De Luca-Leonard wrote to Mr Gillett's former solicitor seeking his file and eventually obtained it.

26 On 1 September 2008 Mr Perry of counsel gave a preliminary advice about which Ms De Luca-Leonard wrote to Mr Gillett. On or about 20 October 2008 Mr Perry advised that there was a reasonably arguable case for him to commence a civil claim for damages. Acting on that advice, Ms De Luca-Leonard filed a statement of claim on 23 October 2008. The claim is framed in negligence and breach of statutory duty: negligence in failing to disclose the documents I have mentioned to the Office of the Director of Public Prosecutions and breach of statutory duty in so failing to comply with certain provisions of the Director of Public Prosecutions Act 1986 and the Police Act 1990."

Primary judge's reasons on the notice of motion

25 The primary judge, at [30], stated that the question for his determination was whether the respondent's cause of action was discoverable before the day, three years before he commenced his action, that is, before 24 October 2005. His Honour noted that by its plea in bar and its notice of motion, the State assumed the burden of proving that the cause of action was discoverable before that day.

26 Both parties agreed that his Honour correctly identified the date of 24 October 2005 as being the relevant date for the purpose of the limitation provisions and that his Honour also correctly found the State bore the onus of establishing that the cause of action was discoverable before that date: see Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 72-74 per Brooking, Tadgell and Hayne JJ; Hawkins v Clayton t/as Clayton Utz & Co (1986) 5 NSWLR 109 at 142 per McHugh JA; Cassis v Kalfus [2001] NSWCA 460 at [65] per Hodgson JA (Powell JA and Heydon JA (as his Honour then was) agreeing); Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262 at [27] per Hodgson JA (Handley JA and Young CJ in Eq agreeing).

27 His Honour, at [31], set out the following matters that the State contended the respondent knew or ought to have known prior to that date so as to establish that the cause of action was discoverable prior to 24 October 2005.

"(a) that he had been charged,

(b) that he had been suspended with pay pending the outcome of the criminal proceedings,

(c) that his general practitioner connected his state of agitated depression with the incident over which he had been charged and suspended,

(d) that his psychiatrist was of a similar view on the nexus between the criminal charges and his psychological condition,

(e) that the jury was directed to acquit him after it appeared that the Crown Prosecutor had not seen certain documents on which the first Crown witness had been cross-examined,

(f) that his claim for Hurt on Duty benefits had been accepted by the NSW Police Force on the basis of the injury he claimed to have suffered,

(g) that he had applied for a medical discharge on the grounds of the psychological injury he claimed to have suffered following the laying of criminal charges for which he had been acquitted,

(h) that his psychiatrist identified that particular incident as precipitating his psychological impairments,

(i) that he had been medically discharged from the NSW Police Force due to his psychological injury,

(j) that he might have a civil cause of action and that he had sought advice from counsel,

(k) that counsel had provided comprehensive advice, and

(l) that, based on counsel's advice, his solicitors considered that the matter had been brought to a conclusion That was on 21 September 2005."

28 As I explain below, the respondent placed particular emphasis upon these factual matters as demonstrating the limited basis upon which the State had sought to discharge its onus to demonstrate that the cause of action was discoverable prior to 24 October 2005.

29 Before the primary judge, the State argued that from the time the respondent received counsel's advice in September 2005, until he changed solicitors in late 2008, there was no evidence that he had set in train any further investigation of his common law rights. The State submitted the respondent must have known that a cause of action existed, but that he did not have enough evidence to make it out. The State also pointed out that the respondent's affidavit evidence on the notice of motion was silent as to 'what' he discovered late in 2008 that prompted him to commence proceedings.

30 The State contended, however, that the respondent knew the injury had occurred and that it was caused by the fault of the State, even though the precise cause of action pleaded in his statement of claim had not emerged. Accordingly, he had the requisite knowledge for the purposes of s 50D.

31 His Honour stated that the factual matters relied upon by the State were uncontroversial (set out at [27] above), but considered that there were other relevant factors that had to be taken into account. Those matters were:

(1) the respondent's request to his solicitor on 12 April 2005 to obtain counsel's advice, given that the police investigation had failed to disclose vital evidence to the Crown: see judgment at [8];

(2) the respondent's complaint to the Police Integrity Commission on 31 May 2005: see judgment at [9];

(3) the respondent's letters to his solicitors of 25 July and 31 August 2006 detailing complaints against various police officers: see judgment at [16];

(4) the respondent's letter to the Professional Standards Manager in about September 2006 repeating his concerns about the investigation and prosecution and containing criticisms of a senior police officer: see judgment at [17];

(5) the advice he received that his complaint to the Police Integrity Commission had concluded on the basis it could not be sustained. He was never provided with a full copy of the report: see judgment at [18].

32 His Honour concluded, at [33]:

"I am satisfied that it was in an attempt to uncover further facts that Mr Gillett repeatedly wrote to those concerned with the resolution of the complaint he had made to the Police Integrity Commission and ultimately considered by the New South Wales Police Service. They are summarised above, particularly at paras [8], [9], [16], [17] and [18]. I think that if his diligent enquiries and entreaties had yielded further evidence he would have asked his solicitor to brief counsel to reconsider the matter."

33 His Honour then referred to the decisions of this Court in Baker-Morrison especially at [25]-[27] 461-462 and [57]-[58] 467 and Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 as governing the proper application of the limitation provisions: ss 50C and 50D. His Honour noted, at [36], that s 50D includes both actual or constructive knowledge ("that the person knows or ought to know"), and referred to the statement in Bostik Australia:

"... that it is not sufficient for the purposes of s 50D(1)(b) that a person merely know the facts necessary to establish the fault of the defendant. The person must also know that the defendant is, as a matter of law, liable to pay damages: see at [38]-[49]."

His Honour observed that this statement in Bostik Australia was based upon the statements of principle in Baker-Morrison.

34 His Honour, at [37], rejected the State's submission that, having received counsel's advice, the respondent must have known a cause of action existed but lacked the evidence necessary to make it out. His Honour considered the position to be that the respondent needed evidence to establish that he had a claim against the Police Service and hoped evidence would emerge. His Honour's comment would appear to be a reference to the respondent's affidavit evidence, of 9 June 2010 (given after receipt of counsel's advice), that in March 2008:

"... I felt agitated about the lack of a claim and the lack of evidence to ground a claim, enough to speak to my neighbour about it."

35 The respondent could not know, until that point was reached, that the State was, as a matter of law, liable to pay damages.

36 His Honour, at [38], considered whether, having received the first advice from counsel, with which he was unhappy, the respondent should have sought a second opinion. His Honour concluded that was not reasonably required. In his Honour's opinion, it was reasonable for the respondent to accept the first opinion on the facts as the respondent understood them and to pursue the search for evidence that might establish a case.

37 In his Honour's opinion, the respondent's conduct throughout was reasonable. As his Honour put it, at [39]:

"I do not think that [the respondent] failed to take any step that might reasonably have been required. I do not think that at any time before he received advice of the opinion of his present counsel that he knew that he had a case against the police. Neither do I think that he ought to have known that fact."

38 It followed, in his Honour's opinion, that the respondent's cause of action was not discoverable until 2008 when he received the second advice from different counsel. It should be noted that his Honour considered that the second advice was based on much the same material as the original opinion.

The argument advanced in this Court

39 The State submitted that Baker-Morrison is plainly wrong and should not be followed: see Gett v Tabet. The essential argument advanced was that for the purposes of s 50D, the necessary knowledge, whether actual or constructive, is of facts sufficient to establish that a person has a cause of action against the defendant. Section 50D does not require that a person also know that s/he has a cause of action, that is, it is not necessary that the plaintiff know that the defendant is legally liable. The State submitted that the construction of equivalent legislation and, in particular, the meaning of the word "fault", as construed in Spandideas v Vellar [2008] VSC 198, was to be preferred with a qualification that the word "fault" in s 50D(1)(b) need not be limited to the concept of "moral blameworthiness" as was held in Spandideas.

40 It is convenient, therefore, to consider that decision so as to appreciate the State's argument.

Spandideas v Vellar

41 In Spandideas, the plaintiff commenced proceedings in 2007 claiming damages arising out of a surgical procedure performed by the defendant in May 1996. The defendant pleaded that the claim was statute barred, whereupon the plaintiff brought an application seeking a declaration that her claim was not statute barred. The procedure invoked by the plaintiff was for the determination of a question before trial: see Supreme Court Rules (Vic), r 47.04. The plaintiff alternatively sought an order that the limitation period be extended. That aspect of the application is not relevant to the issue with which this Court is concerned.

42 The Limitation of Actions Act 1958 (Vic), ss 27D and 27F are relevantly in the same terms as ss 50C and 50D of the New South Wales legislation.

43 The plaintiff had sustained a serious and distressing injury in May 1996 due to the alleged negligence of the defendant in performing an operative procedure known as a lateral sphincterotomy. The procedure was carried out three months after the birth of the plaintiff's first child. The plaintiff developed serious depression in addition to suffering the adverse physical consequences of the surgery.

44 The principal allegations of negligence were that the defendant should not have undertaken the surgical procedure at a time so close to the birth of her child; that the length of the incision made by the defendant in the course of the operation was excessive; and that the defendant failed to give the plaintiff any sufficient warning of the risk of permanent incontinence arising out of the surgery to be performed. There was expert evidence adduced on the application that supported the claimed negligence.

45 The plaintiff had further surgery in June 1997 in an attempt to repair the damage caused by the initial surgery. That surgery was unsuccessful. In September 1997, the plaintiff consulted solicitors. She informed them that she believed her condition related to the manner in which her child had been delivered. It would seem the plaintiff's understanding arose from what she had been told by the doctors who had performed the further surgery in June of that year.

46 The plaintiff became pregnant with her second child in mid-1998. She believed at this time that her solicitors were still investigating her claim. Her second child was born in April 1999. On 27 June 2000, four years after the negligently performed surgery, the solicitors advised her that she did not have a case in respect of her bowel problem. In the succeeding years, the plaintiff suffered serious mental health problems arising from her depression.

47 In 2003, the plaintiff consulted a colorectal surgeon who advised further surgery, which the plaintiff declined. In 2004, the plaintiff consulted another colorectal surgeon who carried out a surgical repair of the sphincter. In May 2005, the plaintiff consulted new solicitors. She was referred to a colorectal surgeon for a medicolegal opinion. It was in the course of that consultation that the plaintiff became aware that her medical problem had been caused by the negligence of the defendant in the surgical procedure undertaken by him in 1997 and that it was not due to any negligence in the delivery of her first child, as she had believed.

48 Kaye J, at [22], identified the question for determination for the purposes of s 27F as "when the plaintiff knew, or ought to have known, of the facts necessary for her cause of action". The plaintiff knew that she had been injured and that her injury was sufficiently serious to justify bringing an action more than three years before the date of the issue of the proceedings. The matter in issue, therefore, was whether the plaintiff knew, or ought to have known more than three years before the date on which she issued proceedings, that her injury was caused by the "fault" of the defendant. That issue required a determination of the meaning of the word "fault" in s 27F.

49 The competing arguments advanced were: as argued by the plaintiff - that the section required that the plaintiff knew or ought to have known that the injury was caused by an act or omission of the defendant for which the defendant was "culpably responsible"; or as argued by the defendant - that the word "fault" simply meant "act or omission", so that it was sufficient that the plaintiff knew or ought to have known that the injury was caused by an act or omission of the defendant.

50 Kaye J considered that the construction of the word "fault" for which the plaintiff contended was correct and concluded that its meaning was plain and unambiguous, both in ordinary parlance and within the meaning of the Act. His Honour considered that "fault" in its everyday meaning connoted culpability or blameworthiness. His Honour explained this at [32], as follows:

"... where injury or damage is said to be the result of the 'fault' of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage."

51 His Honour considered that this was also consistent with the Macquarie Dictionary definition of the word "fault":

"1. A defect or imperfection; a flaw; a failing.

2. An error or mistake.

3. A misdeed or transgression.

4. Delinquency; culpability; cause for blame."

52 His Honour specifically rejected that the word "fault" was confined in its meaning to "act or omission", although, on his Honour's construction, s 27F(1)(b) did not require that the plaintiff form a legal judgment as to the "fault" of a defendant in the tortious sense of the word. Rather, "fault" in s 27F(1)(b) was used in its ordinary non-legal sense, that is, the attribution of an accident or damage or harm due to the "fault of another".

53 His Honour concluded, at [41], that Parliament intended the period of limitation to commence when the plaintiff knew, or ought to have known, that the injury was caused by an act of a person, which should not have been carried out, or which should have been done differently. His Honour considered that should the plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of "fault".

54 Kaye J accepted, at [58]-[59], that the plaintiff did not know until August 2006 that the defendant should not have performed the operation undertaken by him in May 1996. Up until that point of time, the plaintiff had believed that the doctor responsible for the damage to the sphincter was the doctor who attended upon the birth of her first child. His Honour concluded that the plaintiff had established it was not until August 2006 that she understood her injury was a result of the "fault" of the defendant for the purposes of s 27F(1)(b).

55 His Honour also stated, at [60], that although it might not be necessary to do so, having regard to the construction that he had given to "fault" in the section, he had concluded the plaintiff did not know until that time that the surgery undertaken by the defendant in May 1996 had caused or contributed to her injury. It is apparent from his Honour's remarks that he considered the question of legal causation was not divorced from the factual question of when the plaintiff knew her injury was due to the fault of the defendant. His Honour stated:

"In reality, the question as to when the plaintiff knew that her injury was caused by the 'fault' (as I have defined it) of the defendant, is not entirely discrete from the factual question as to when the plaintiff knew that the incision made by the defendant in the sphincterotomy caused or contributed to her injury ... if the plaintiff had understood, hitherto, that the operation performed by the defendant was 'responsible' (in a causative sense) for her injury, either in whole or in part, then I would expect that the plaintiff would also have considered that there had been something 'wrong' about the performance of the operation by the defendant."

56 Spandideas was expressly not followed by this Court in Baker-Morrison. It is thus necessary to turn to Baker-Morrison, as the State contended that this Court erred in that decision and ought to follow the construction given in Spandideas to the word "fault" in s 50D(1)(b).

Baker-Morrison v State of New South Wales

57 The plaintiff, a two-year-old child, was injured on 26 May 2004 in the reception area of a local police station when her fingers became caught in automatic sliding doors which opened when a person entered through them into the reception area. The injuries to the plaintiff's fingers were serious, although there was a question in the proceedings whether the injuries were sufficiently serious to bring a claim within the meaning of s 50D(1)(c).

58 The plaintiff's mother sought legal advice the following week. The solicitor immediately wrote to the local police suggesting that the letter be forwarded to their public liability insurer, indicating that a claim for damages was likely to be forthcoming. The solicitor also sought permission to inspect the door and the surrounding area. That permission was granted and the inspection took place a few days later. During the course of that inspection, the solicitor observed that an angle iron had been installed at the base of the door, which he assumed had been placed there to diminish the risk of another similar accident occurring.

59 The solicitor wrote to the plaintiff's mother informing her of the observations made on inspection and forwarding the photographs that had been taken. He advised that a letter of demand had been sent to the police but suggested a period of inactivity whilst the plaintiff was undergoing treatment and the insurer's investigations were being carried out.

60 The solicitor gave evidence that he did not at that time form a belief that the plaintiff had reasonable prospects of success in a claim, or that the occupier was at fault in causing the injuries. He said he did not convey to the plaintiff's mother that the plaintiff had reasonable prospects of success in making a claim, nor did he receive any information from the plaintiff's mother that she believed there were such prospects, at any time prior to 14 March 2005.

61 The solicitor also gave evidence that he was informed by the plaintiff's mother that she would wait for his advice before making any decision about a claim for her daughter. In this regard, the plaintiff's mother had informed him that she had no experience or knowledge in making personal injury claims and would rely on his advice.

62 On 21 June 2007, three years and 26 days after the injury, a statement of claim was filed on behalf of the plaintiff. The question for the court's determination was whether the cause of action was discoverable by the plaintiff within the 26 day period beyond the three years period, which expired on 27 May 2007. If it was, then the claim was statute barred. The relevant person in this case, for the purposes of s 50D, was the plaintiff's mother, who was the plaintiff's tutor in the proceedings.

63 The question for the Court's determination was the meaning of "fault" within s 50D(1)(b), so as to determine whether the plaintiff's mother was aware, in the relevant period, that the injury to the plaintiff was "caused by the fault of the defendant".

64 The plaintiff argued that s 50D(1)(b) involved a degree of appreciation of the potential legal liability of the defendant.

65 The State argued it was sufficient that the plaintiff appreciate that there was a connection between some act or omission of the defendant and the injury and that the relevant act or omission was blameworthy, though not necessarily in a legal sense. This argument echoed the construction given to the equivalent Victorian section in Spandideas. The State acknowledged in its argument that if the requisite knowledge for the purposes of s 50D required the application of any degree of professional expertise or assessment, the evidence did not permit a finding that the mother knew that the injury was caused by the fault of the State or that the injury was sufficiently serious to justify bringing an action.

66 The principal judgment was given by Basten JA. His Honour's reasoning was as follows:

"25 A cause of action is 'discoverable' for the purposes of s 50C if the relevant person has either actual knowledge or what is sometimes described as 'constructive' knowledge, being what he or she 'ought to know' of certain facts: s 50D(1) ... Both limbs require giving content to:

(i) the concept of knowledge, and

(ii) each of the identified 'facts'.

26 These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to par (a). The plaintiff's injury involved a physical wound which was readily apparent to her mother. Although that disposes of par (a) for the purposes of the present case, it should be noted that, in the case of a psychological injury, additional questions will arise. For example, does 'injury' refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a 'recognised psychiatric illness' from emotional distress as required by the Civil Liability Act, s 33?

27 Some support for a construction which does not import any element of legal knowledge may be found in the repeated use of the word 'fact' to describe that which the person knows or ought to know. However, the meaning of that term must be ascertained by reference to the whole of the provision and the possibility that (at least in some circumstances) the relevant fact identified in par (a) (namely, injury or death) is of a different quality to those identified in pars (b) and (c). Furthermore, at least in pars (b) and (c), the singular 'fact' is used to describe a composite of inferences or the result of an evaluation. This is a drafting technique which used to be deplored (see Smith v Central Asbestos Co Ltd [1973] AC 518 at 531-532 (Lord Reid)), but now passes with little protest. However, it deprives reliance on use of the word 'fact' of much significance in this statutory context."

67 Having thus observed that the relevant fact for the purposes of paras (b) and (c) may, in some cases, be a different quality to the relevant fact for the purposes of para (a), his Honour stated in respect of s 50D(1)(b):

"28. In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."

68 Basten JA, at [39] 464, rejected the proposition that it was necessary for a person to be able to articulate a cause of action for the purposes of para (b). Rather, "it [was] the key factors necessary to establish legal liability [that had to] be known". His Honour, at [40] 464, rejected the State's argument that it had demonstrated:

"... that the plaintiff's mother knew, at the relevant time, of any steps that could and should reasonably have been taken by the occupier of the premises to render the sliding door safe."

69 His Honour considered that, "[u]ntil the plaintiff's mother was aware, or ought to have been aware, of the availability and reasonable practicability of installation" of a protective guard covering the area of operation of the sliding glass door, "she could not be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety". In his Honour's view, those were the terms in which the relevant test under s 50D(1)(b) should be formulated.

70 It is apparent from [41] that Basten JA considered that a legal evaluative judgment appeared to be required by s 50D(1)(b) and this was even more explicit in s 50(1)(c). His Honour considered this provision required a plaintiff to know (or ought to know) that "the injury suffered was sufficiently serious to justify the bringing of an action": s 50D(1)(c). In other words, a plaintiff had to know that the defendant's conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action, absent appropriate legal and medical advice in respect of such matters.

71 Basten JA also considered, at [43] 465, that s 50D was to be read in a broader context. One such context was the requirement that a claim for damages for personal injury, in cases where a solicitor acts for a plaintiff, must be accompanied by a certification that the proceedings have prospects of success: the Legal Profession Act 2004, s 347. This supported his Honour's construction of s 50D(1)(b) that a plaintiff had to know, or ought to have known, that a defendant's conduct was actionable.

72 Basten JA concluded, at [45]-[46] 465, that the plaintiff's mother did not have actual knowledge necessary to satisfy s 50D(1)(c) or, in all probability, the necessary knowledge to satisfy s 50D(1)(b).

73 His Honour then dealt with constructive knowledge for the purposes of s 50D(2):

"57 The next question was whether the plaintiff's mother ought to have known each of the facts identified in sub-s 50D(1). The answer to that question must depend upon the effect of sub-s (2). It purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. (emphasis added)

58 In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.)

59 The phrase 'ought to have known' can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression 'ought to know' was identified by reference only to what the putative plaintiff 'would' have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word 'would' (rather than 'should') is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice.

60 It was not suggested that, in the 26 day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail.

61 It may be added that, even if an inquiry into whether the solicitor acted reasonably were called for, the State neither called evidence to show that he had failed, nor cross-examined him to suggest that he had failed, to take particular steps which he should reasonably have taken in order to supply the mother with appropriate advice or information."

Frizelle v Bauer

74 The application of s 50D was again considered by Basten JA in Frizelle v Bauer [2009] NSWCA 239. In that case, the plaintiff sustained serious injuries in a fall on 2 July 2003. She sought legal advice on 17 July 2003 but did not commence proceedings until 5 April 2007. The question in issue was whether the plaintiff knew, or ought to have known, prior to 5 April 2004, that her injury was "sufficiently serious to justify the bringing of an action" within the meaning of s 50D(1)(c).

75 Basten JA (McColl JA agreeing) stated, at [27]:

"There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the 'fault' of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at [24]. Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case."

76 His Honour found that Ms Frizelle's case fell into a different category. The evidence established that the plaintiff knew the seriousness of the injury at least by early 2004. The trial judge concluded Ms Frizelle appreciated that the injury was sufficiently serious to bring an action by that time. It followed that her claim was statute barred. Importantly, for the purposes of the question in this case, his Honour added, at [30]:

"There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind. According to Baker-Morrison, the terms of s 50D(1) may not be engaged: see, Baker-Morrison at [59]. That, however, is not the present case and the correctness of that view does not arise."

77 I will return to this passage later.

Bostik Australia Pty Ltd v Liddiard & Anor

78 The third decision on the construction of s 50D(1)(b) is Bostik Australia per Beazley JA (Ipp and Basten JJA agreeing). The Court applied Baker-Morrison. At issue was whether the plaintiff knew or ought to have known before the relevant dates that his injury was caused by Bostik. That question arose because the plaintiff carried out work for two different entities, Brolton and Bostik, each of whom conducted businesses at the site. Beazley JA stated, at [46], that on the evidence it was unlikely the plaintiff had any understanding for whose benefit he was undertaking the particular work at the time of the injury. Rather, it was likely that all he understood was that he worked for Brolton. Beazley JA concluded, at [49], that the plaintiff did not know the identity of the "defendant" for the purposes of s 50D(1)(b), which was an essential fact in the context of knowing where fault was at issue for the purposes of s 50D(1)(b).

Meaning of fault

79 The State submitted that the word "fault" in s 50D(1)(b) should be given its ordinary meaning, in accordance with the principle of statutory construction that general words be given their plain and ordinary meaning, subject to any contrary intention in the legislation. In this regard, the State relied on the definition of the word referred to by Kaye J in Spandideas, at [32]:

"1. A defect or imperfection; a flaw; a failing.

2. An error or mistake.

3. A misdeed or transgression.

4. Delinquency; culpability; cause for blame."

80 The State submitted this Court should apply the same meaning to the word "fault". On that approach, all that the State was required to establish was that the respondent knew the State's act or omission was causative of loss. It was not necessary for the plaintiff to know that the conduct was legally actionable. The State did not contend that "fault" "be limited to its extended meaning of moral blameworthiness".

81 The State further submitted that the different terminology, viz: "act or omission" in other provisions of the Limitation Act did not detract from this construction. Reference was made to ss 50C(1)(b), 50E, 60D, 60E, and 60I(1)(iii). Those sections use the phrase "act or omission" or in the case of s 60D "wrongful act, neglect or default".

82 The meaning of the words "act or omission" in these provisions had been considered by the High Court in Dedousis v Water Board [1994] HCA 57; 181 CLR 171, which in turn was considered by this Court in Drayton Coal Pty Limited v Drain (NSWCA, 22 August 1995, unreported). The provision relevantly under consideration in those cases was s 60I(iii) which provided that a court could not make an order extending the limitation period unless it was satisfied that the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the limitation period.

83 In Dedousis the High Court stated that this provision was concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) continued, at [27] 181-182:

"However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was 'unaware of the connection between the personal injury and the defendant's act or omission' within the meaning of [the section]. On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions."

84 In Drayton Coal, Gleeson CJ (Priestley and Meagher JJA agreeing) considered that questions of degree may be involved in determining whether a plaintiff was unaware of the connection between the personal injury and the defendant acts or omissions. His Honour stated, at 7:

"... a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at a trial. The mere fact that a plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission: which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii)."

85 The State contended that the requirement that an injury was caused by the "fault" of another, within the meaning of s 50D(1)(b), meant that the injury was caused by a potential spectrum of possible errors or mistakes, misdeeds, transgressions or failures, which did not require that the plaintiff make a legal evaluation at that stage. Rather, what was necessary was that the plaintiff know of the necessary fact, that is the fault of the defendant that subsequently established legal liability. The State submitted that what needed to be identified were the key factors necessary to establish legal liability in the form of a cause of action, not the cause of action itself: see Drayton at 7.

86 The respondent maintained that "fault" for the purposes of s 50D(1)(b) engaged the notion of legal actionability. On this construction more was required than the plaintiff know or ought to know that the defendant was morally blameworthy, as had been held in Spandideas. However, it was not necessary that the plaintiff know what the cause of action was. This submission, in effect, adopted the reasoning in Baker-Morrison at [39] 464.

87 The respondent submitted that if the construction for which the State contended was correct, s 50D(1)(b) would have to be read in a way consistent with earlier decisions such as Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; 154 CLR 234, which involved different legislative language. In Do Carmo, the statutory phrase "the fact of the occurrence of negligence nuisance or breach of duty" on which the cause of action was founded was construed to mean the occurrence of a wrongful act or omission and did not include the legal consequences of those acts: see especially Wilson J at 247, Brennan J at 249 and Dawson J at 254.

88 The language of s 50D(1)(b) was materially different from the provisions considered in these judgments. Accordingly, on the respondent's submission, "fault" within s 50D(1)(b) should not be construed simply to mean knowledge of the causative acts or omissions.

89 The respondent also submitted that a plaintiff did not need to be certain of the prospects of success for the purposes of s 50D(1)(b). This submission embraced a case where a plaintiff received legal advice that there was a particular cause of action but with poor prospects of success. However, the plaintiff was given later advice that there was a different cause of action available with good prospects of success. The respondent accepted, in that circumstance, the plaintiff might still stumble on the limitation defence because it was arguable the plaintiff knew of the defendant's "fault" in the relevant sense. Notwithstanding that a plaintiff might not succeed in that circumstance, the respondent contended that this did not undermine his basic submission that "fault" involved the notion of legal actionability.

90 It was integral to the respondent's argument that the "fault" for the purposes of s 50D(1)(b) was that of the defendant. It was contended that this could be profoundly important in a given case. The respondent posed two different scenarios relating to a motor vehicle accident to illustrate his point. In the first, a defendant drives through a red light and collides with a vehicle crossing the intersection with the green light in its favour. The respondent accepted that in this scenario, the ordinary layperson would be expected to know that the conduct of the driver was legally actionable. By contrast, if the identity of the driver of the vehicle that drove through the red light was never known, a court might conclude that a person injured as a result of the collision may know that the matter was legally actionable, but not know that it was legally actionable against the Nominal Defendant. In that case, the plaintiff would require legal advice for the action to be discoverable against the Nominal Defendant.

91 It followed on the respondent's submission that what the section required was that the plaintiff know there was a cause of action worth pursuing, which nearly always required a legally evaluative judgment. Whether or not a plaintiff required the assistance of legal advice in order to make that evaluation would depend upon the facts of the particular case and the circumstances of the particular plaintiff. He submitted that this case was one where legal advice was required. A person could not be expected to know that a failure by a police officer to provide all material documents to the DPP was likely to be legally actionable against the State.

92 The respondent submitted that if a plaintiff was given incorrect advice so that they did not know that there had been an actionable wrong, time did not commence to run for the purposes of the limitation statute until the plaintiff had received correct advice.

93 It is important at this point to return to the words of the section. Section 50D provides that a cause of action is discoverable on the first date the person knows, or ought to know, relevantly, the fact that the injury was caused by the fault of the defendant.

94 In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between "fault" and injury. Section 60I involves a connection between an act or omission and injury. The respondent's submission, noting the requirement in s 50D(1)(b) that the fault be that of the defendant, who may not be the actual wrongdoer, supports this construction.

95 There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word. A case where a defendant is liable pursuant to a non-delegable duty of care is one example where this could be said to be the case. A defendant only liable pursuant to statute, such as the Nominal Defendant, is another. The State, liable under the Crown Proceedings Act 1988, as is the case here, is another example. Yet another is a case of malicious prosecution, where the identity of the prosecutor is pivotal to the determination of the elements of malice and reasonable and probable cause: see A v The State of New South Wales [2007] HCA 10; 230 CLR 500. The factual circumstances in Bostik provide a further example where a plaintiff may not know who the employer is and therefore whether injury was the fault of a particular defendant. This is not so unusual. Many cases come before the courts where a plaintiff is unaware of the identity of the actual employer.

96 It is useful at this point to return to the statement of Basten JA in Baker-Morrison, at [40] 464, where his Honour referred to the failure of the State to demonstrate:

"... that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe."

97 A question arose during the course of the argument whether, in making this observation, his Honour's construction of "fault" referred to the facts that demonstrate that there has been a breach of the relevant legal standard. In this regard, the 'relevant legal standard' may vary, depending upon whether the claim was brought in negligence, breach of contract or breach of statutory duty. The respondent submitted that this formulation reflected the construction he was propounding, namely that, for the purposes of "fault" in s 50D(1)(b), a defendant had to establish that the plaintiff knew the matter was legally actionable. What that involved in a particular case would depend upon the relevant facts and circumstances. I agree with senior counsel's response.

98 In my opinion, the State has failed to demonstrate that the construction given to "fault" in Baker-Morrison is 'plainly wrong'. Indeed, I consider the construction to be correct. Its application in a particular case may not always be straightforward, as the respondent's submission readily acknowledged. So far as the State's submission is concerned, this Court should not follow the construction given to the similar provision in Spandideas.

Meaning of constructive knowledge for the purposes of s 50D(2)

99 The State contended that Basten JA had erroneously construed s 50D(2) in Baker-Morrison at [37] 463 and [59] 467-468, although it submitted that the reasoning at [57] ff (emphasised portion of [57]: see above at [73]) was relevant to an understanding of his Honour's error. For ease of reference, that reasoning was, relevantly:

"That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken."

100 The State submitted that s 50D(2) was not based on the premise that the plaintiff had not taken all reasonable steps. Rather, the subsection required a finding as to whether the plaintiff had taken all reasonable steps to ascertain the matters identified in s 50D(1)(b). To approach it in the manner indicated by his Honour was, the State submitted, to invert the enquiry. The State contended that this erroneous approach to s 50D(2) informed his Honour's approach in the succeeding paragraphs of his judgment, and in particular his Honour's finding that imputed knowledge was not part of the inquiry for the purposes of s 50D(2). The State submitted that his Honour had adverted to the possibility of error in this regard in Frizelle v Bauer at [30] (see at [76] above).

101 The notion of imputed knowledge in a limitation statute was considered in Sola Optical Australia Pty Ltd v Judith Ann Mills [1987] HCA 57; 163 CLR 628. There, the limitation provision specified that a court was not empowered to extend the limitation period unless it was satisfied that material facts "were not ascertained by [the plaintiff] until some point of time occurring within twelve months before the expiration of the period of limitation". The High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) at [15] 637, rejected the argument that the ascertainment of material facts by the plaintiff's solicitor satisfied the terms of the section. Other references to "the plaintiff" reinforced that construction. As the Court stated, at [15] 637:

"The paragraph is concerned with the materiality to the plaintiff's case of the facts which were not ascertained by him before the expiration of the prescribed term. The concluding phrase of the paragraph is emphatic in declaring that the outside limit is twelve months after the ascertainment of the material facts by the plaintiff."

102 In Sola Optical there was no provision relating to constructive knowledge, as is the case here: viz s 50D(2). Having said that, the High Court's construction, which focused on the particular words of the section, was similar to the approach taken by Basten JA.

103 The State submitted that the construction given to s 50D(2) was incorrect. It submitted that the subsection posed a hypothetical situation. A person is deemed to have knowledge of the facts if they would have been ascertained by a person taking all reasonable steps before that time to ascertain the facts.

104 In my opinion, there was no error of construction in the challenged portions of Baker-Morrison on this issue. As I understand his Honour's reasons, Basten JA was doing no more than postulating an objective test. For the purposes of s 50D(2), the court had to 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 would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case.

Did the trial judge err in striking out the limitation defence in this case?

105 The respondent submitted that the trial judge's factual findings were the only facts found by him on the State's application for a permanent stay based on the limitation argument. The respondent acknowledged that there was evidence before his Honour that the Crown Prosecutor had stated in open court that, until the cross-examination of Constable Farrelly, he had not been aware of Constable Farrelly's report to Inspector Wood (MFI 1). The respondent submitted that did not establish that the respondent knew, or ought to have known at that time, that Senior Sergeant Gaskins had failed to provide documents to the DPP, which was the key factual ingredient in the cause of action. The respondent contended that for the State to discharge its onus on the application, the State needed to prove that fact, but had failed to do so.

106 The respondent submitted that the State had not established that the respondent knew that he had a legal remedy prior to the time he obtained the legal advice upon which he brought his claim. The fact that he may have had a suspicion that he had a legal remedy or wanted to know whether he had a legal remedy was different from establishing that the respondent knew that the State was legally liable, in the sense of there being an actionable claim against it, at any prior point of time.

107 In further support of his submission that the State had not discharged its onus in this case, the respondent reiterated that there was no evidence before the trial judge as to why the Crown Prosecutor did not have MFI 1 in his brief. In particular, there was no evidence as to whether that was due to an omission by the Police Service or was due to administrative or clerical deficiencies within the office of the DPP. The respondent also submitted that it was not open for the State to assert in the Court of Appeal that the respondent believed Senior Sergeant Gaskins had failed to hand documents on to the DPP and that constituted knowledge of a breach of a duty of care. The respondent contended that was not the way the matter was run before the primary judge but, in any event, a finding to that effect was not open on the evidence. The respondent submitted that he needed to know he had an actionable claim against the State based upon the fact that Senior Sergeant Gaskins did not give certain documents to the DPP. It followed on the respondent's argument that the State had not discharged its onus of proof on the application to have the statement of claim permanently stayed on the basis that it was statute barred.

108 The respondent's submission pointed out the difficulty of the course chosen by the State in having the limitation issue determined as a separate question. The courts have frequently warned of the undesirability of this process: see Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 533. Had the matter been left to trial, the evidence would have been before the court as to what the respondent knew, what he believed, and when he found certain things out.

109 The respondent submitted that there was no error in his Honour's determination in this case, albeit that the circumstances were somewhat unusual. He summarised the position as follows. The respondent acknowledged that he knew he had suffered a psychiatric injury at an early stage after the conclusion of the criminal proceedings. He sought advice as to whether there was anything legally he could do about that. He received legal advice that he could not. The respondent submitted that in those circumstances, the cause of action was not discoverable unless and until he received legal advice that the State was legally liable for his injury.

110 In my opinion, these submissions should be accepted. No error has been shown in the primary judge's reasons. Earlier in my judgment I gave my reasons as to why leave to appeal should be granted. My conclusion that no error has been shown in the primary judge's reasons leads to the result that the appeal should be dismissed. This means that the orders of the primary judge, including that the limitation defence be struck out, will stand. The primary judge's determination on the limitation issue was made on limited evidence. Had the State not brought its notice of motion for the determination of the limitation issue as a separate question, it is possible that there may have been a different outcome. That is a matter upon which I express no opinion. Nor is it a matter about which the Court can be concerned, once it is decided that leave to appeal should be granted. The State has taken deliberate decisions as to the conduct of the proceedings. It must therefore bear the consequences of the Court's determination on the issues raised.

111 Accordingly, I propose the following orders:

1. Grant leave to appeal;

2. Appeal dismissed;

3. The applicant/State to pay the respondent's costs of the appeal.

112 McCOLL JA: I agree with Beazley JA's reasons and the orders her Honour proposes and with Campbell JA's additional observations.

113 CAMPBELL JA: I have had the advantage of reading the draft reasons for judgment of Beazley JA. I agree with her Honour's proposed orders, and with her reasons. There are some additional matters that arise from a legislative history of ss 50C and 50D Limitation Act that support the construction that the court gave to those sections in Baker-Morrison.

114 The legislative provisions in s 50C and 50D were introduced as a consequence of recommendations of the Ipp Committee. The final report of that Committee (Review of the Law of Negligence Final Report, September 2002) consistently used the term "negligence" to mean "failure to exercise reasonable care and skill" ([2.3]).

115 [6.9] of the Report said:

Our Terms of Reference require us to 'consider ... the relationship with limitation periods for other forms of action, for example arising under contract or statute'. As we have pointed out in the Introduction to this Report, actions for negligentlycaused personal injury and death can be brought under contract, statute and various other causes of action, as well as under the tort of negligence. It is desirable that the limitation periods relating to all actions of this kind, irrespective of the formal causes of action on which they are based, should be the same. This effect will be achieved if the Proposed Act makes it plain that all claims for negligently caused personal injury or death are governed by the limitation provisions proposed in this chapter.

116 Recommendation 24 of the Report included:

The Proposed Act should embody the following principles:

(a) The limitation period commences on the date of discoverability.

(b) The date of discoverability is the date when the plaintiff knew or ought to have known that personal injury or death:

(i) had occurred; and

(ii) was attributable to negligent conduct of the defendant; and

(iii) in the case of personal injury, was sufficiently significant to warrant bringing proceedings.

(c) The limitation period is 3 years from the date of discoverability.

(d) Subject to (e), claims become statute-barred on the expiry of the earlier of :

(i) the limitation period; and

(ii) a long-stop period of 12 years after the events on which the claim is based ("the longstop period").

There were also recommendations in (e) to allow a discretionary extension of the longstop period.

117 The explanation for this recommendation was:

6.20 The purpose of the requirement of knowledge that the personal injury was sufficiently significant to warrant bringing proceedings is to deal fairly with those cases where serious injury is sustained progressively over a period.

6.21 Adoption of the date of discoverability resolves all of the problems inherent in the other commencing dates we have discussed, although it brings with it problems of a different kind. In the Panel's view, however, these different problems can be resolved fairly and easily.

6.22 It is first necessary to explain how adopting the date of discoverability as the commencement date of the limitation period resolves the difficulties inherent in the other commencement dates.

6.23 One element of determining the date of discoverability is the time when the plaintiff could reasonably be expected to have discovered that damage had occurred. This means that it provides a fair way of dealing with those cases where damage manifests itself long after the event, or in a form difficult to detect.

6.24 In the same way, adopting the date of discoverability provides a fair way of dealing with those cases where it takes many years for a plaintiff to discover that his or her condition was caused by the negligence of another.

6.25 Because adopting the date of discoverability deals fairly with a wide range of cases, it avoids the need for separate legislation to cover those cases where damage manifests itself long after the event, or in a form difficult to detect. It promotes the cause of consistency and uniformity.

6.26 Adoption of the date of discoverability also allows an important requirement of the Term of Reference discussed in this Chapter to be met, namely that a limitation period of 3 years be applicable to all claims. The Panel is of the view that if time begins to run from the date of discoverability, the limitation period need be no longer than 3 years. Once the plaintiff knows or ought to know both of the damage sustained and the fact that it was attributable to the negligent conduct of the defendant, 3 years is a reasonable period within which to commence proceedings.

6.27 The Panel is also of the view that if time begins to run from the date of discoverability, it is unnecessary and indeed undesirable to give the court a discretion to extend the limitation period. Once the plaintiff knows or ought to know the facts necessary to enable an action to be commenced, a period of 3 years provides a reasonable time for this to be done.

6.28 The fact that the test proposed for determining the date of discoverability is objective will make it easier to prove when the date for commencement of the limitation period occurs. The date of discoverability is not when the claimant in fact discovered the damage and that the damage was caused by the negligence of another, but rather when a reasonable person in the claimant's position should have made the discovery. Accordingly, the evidence about what individual plaintiffs knew will carry less weight, as the date of discoverability will depend on what a reasonable person in the plaintiff's position would have known, and not what the plaintiff personally knew.

118 The reason for recommending that a claim become statute barred on the expiry of the earlier of the limitation period and the longstop period (subject to a discretionary power of the court to extend the longstop period) was explained as follows:

6.33 The purpose of a long-stop period is to fix a date on which an action will become statutebarred, irrespective of whether the date of discoverability has occurred. In other words, under the proposed system, a claim will become statutebarred on the expiry of the limitation period or the long-stop period, whichever is the earlier.

6.34 In the Panel's view, the long-stop period should run from the date on which the allegedly negligent conduct took place.

6.35 As the long-stop period is designed to cater for cases where damage manifests itself long after the event, or in a form difficult to detect, it has to be a relatively lengthy period. Various periods, ranging from 10 to 30 years, have been suggested as appropriate long-stop periods. The longer the long-stop period, the greater the danger of unfairness in the trial process.

119 Sections 50C and 50D were introduced into the law by the Civil Liability Amendment (Personal Responsibility) Act 2002 ("the Personal Responsibility Act"). That Act made major amendments to the Civil Liability Act 2002. One of them was the introduction of Part 1A, relating to negligence generally. Section 5, in that Part, contained a definition "negligence means failure to exercise reasonable care and skill". Section 5A(1) provides:

This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

To that extent, the Personal Responsibility Act followed the recommendations of the Ipp Committee precisely.

120 The Personal Responsibility Act also introduced a new Division 6 into the Limitation Act 1969. That Division related to personal injury actions. Section 50A(1) provided:

This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

121 It is apparent that s 50C and s 50D, quoted by Beazley JA at [12], are closely based upon the recommendations of the Ipp Committee, but that they do not follow those recommendations precisely. The focus of the Ipp Report had been reform of the law of negligence. Thus, its suggested definition of the date of discoverability included, as element (b) that the personal injury or death in question "was attributable to negligent conduct of the defendant". A test cast in those words requires only that the person know (or ought to know) if there had been a failure to take reasonable care, and that it had caused the injury or death in question. Failure to take reasonable care and causation of injury are the sort of questions that a jury was capable of determining.

122 It is possible that personal injury or death could be the result of tortious conduct, or other wrongful conduct, that is not negligent. Actions for assault, false imprisonment and breach of statutory duty are possible examples. It is a reasonable inference that the terms of s 50D(1)(b) Limitation Act differ from the recommendations of the Ipp Report by having as one of the elements of discoverability that "the injury or death was caused by the fault of the defendant" to enable the provision to cover this wider range of circumstances in which a cause of action to recover damages for death or personal injury might arise.

123 However, the change in words has brought a significant change in meaning. In Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298; (2001) 52 NSWLR 350 Heydon JA said, at [48] that there could be "fault":

"... if either the outcome or the way in which the outcome came to pass was blameworthy or wrongful or defective or imperfect or delinquent or culpable or open to censure; or involved misconduct, or a failure to achieve a particular standard, or a deficiency, or a dereliction of duty, or a misdeed, or a transgression; or amounted to a piece of misconduct or to a transgression or a failing; or merited censure, blame or criticism."

124 While those remarks were made in the context of construing a particular statute, they illustrate both the breadth and the variety of the potential meanings of the word "fault". If conduct is of a type for which the law will grant a remedy, it is within any ordinary use of language to say that the person against whom the remedy lies has "fault". Thus, knowledge that injury or death was caused by the fault of the defendant might well require more than that it was caused by conduct that (whether the plaintiff knew or ought to know it or not) was in fact conduct that breached a legal standard for which breach the defendant was answerable.

125 That that change in meaning was deliberate is borne out by the Explanatory Note to the Civil Liability Amendment (Personal Responsibility) Bill 2002. Para (m) of that Explanatory Note states:

Schedule 4.6 amends the Limitation Act 1969 to make the following changes to the limitation provisions applicable to actions for the recovery of damages for personal injury or death caused by the fault of a person:

(i) the new limitation period will be 3 years starting from when the cause of action is discoverable (ie when the plaintiff first knew or ought to have known that there is an actionable cause of action against the defendant) or 12 years starting from the occurrence that gives rise to the claim, whichever expires first. (emphasis added)

126 Section 34 Interpretation Act 1987 permits the use of extrinsic material to interpret and Act, in circumstances including "if the provision is ambiguous or obscure". The word "fault" is highly ambiguous, and thus reference to the Explanatory Note for the purpose of ascertaining the meaning of s 50D(1)(b) is amply justified.

127 In Baker-Morrison at [39] Basten JA decided that "the key factors necessary to establish legal liability" must be known before one knows that an injury was caused by the fault of the defendant, but that "there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise." It is those parts of [39] that are the Court's exposition of the meaning of s 50D(1)(b).

128 The reason that Basten JA gave in Baker-Morrison at [40] why the State failed to satisfy s 50D(1)(b) in that particular case was that it had not shown

"that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe."

129 The reason his Honour gave why the State had failed to show that, was:

"Until the plaintiff's mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety."

130 But those passages do not mean that all that s 50D(1)(b) requires is that the relevant person knows or ought to know that the injury or death in question was caused by events or circumstances that add up to there being a failure to adhere to some legal standard of conduct (such as failure to take reasonable care) that is part of a cause of action against a defendant. It is just identifying a particular "key factor necessary to establish legal liability" of which the plaintiff's mother was ignorant.

131 In Baker-Morrison Basten JA regarded satisfaction of s 50D(1)(c) as dependent upon "the exercise of both legal and medical expertise" ([41]) and that "the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made" ([44]). For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being "fault", actionability is likewise one of the "key factors necessary to establish liability" that must be known before s 50D(1)(b) is satisfied.

132 YOUNG JA: I agree with Beazley JA's reasons and her Honour's proposed orders and also with the last paragraph of Campbell JA's additional reasons.

133 WHEALY JA: I agree with Beazley JA's reasons and the orders her Honour proposes, and with Campbell JA's additional observations.

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Decision last updated: 13 April 2012