An Update on the Limitation Act 1969 (NSW)
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Limitation period for personal injury actions -
for injuries after 6 December 2002:
State of New South Wales v Gillett [2012] NSWCA 83
The Facts
• The respondent submitted a Hurt on Duty
claim to his employer, the New South Wales Police Service, in
October 2003 citing agitated depression arising from the internal
affairs enquiry into his conduct.
• Also in October 2003 the respondent was
charged with a number of offences including corruption under the
Police Act 1900. During the hearing, the Crown
Prosecutor learnt of the existence of certain documents which had
not been provided to it by the Police Service. This led the
DPP to offer no further evidence and to invite his Honour to direct
the jury to acquit the respondent on all counts during the trial in
June 2004.
• The plaintiff was diagnosed with an adjustment
disorder with depressed and anxious mood in November 2004 and was
medically discharged from the Police Service on 8 April 2005.
• The respondent had first sought legal advice
in April 2005 and a barrister was briefed who advised there were no
reasonable prospects of success for a claim for either assault or
malicious prosecution.
• In March 2008, the respondent had a
conversation with his solicitor-neighbour who referred him to
another barrister. The barrister advised him that he had a
reasonably arguable claim against the Police Service framed in
negligence and breach of statutory duty.
• Statement of Claim was filed on 24 October
2008 against the State of New South Wales claiming damages for
psychiatric injury - framed in negligence for failing to disclose
the documents to the DPP which preceded his being charged with a
number of criminal offences and alleging breach of statutory duty
in failing to comply with provisions of the Director of
Public Prosecutions Act 1986 and the Police
Act.
The Legislation
• 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.
• 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 and in writing, or the person.
(4) To remove doubt, a compensation to
relatives action is not discoverable before the date of death of
the deceased.
The Appeal
• The State gave notice that it challenged the
correctness of the Court of Appeal decision in Baker-Morrison v
State of New South Wales [2009] NSWCA 35 and therefore a court
of five judges was empanelled to hear the matter.
• The Court of Appeal dismissed the appeal and
held that the cause of action was not discoverable unless and until
the plaintiff received legal advice that the State was
legally liable for his injuries.
• "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 knowledge… 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
s50D(1)(b) 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."
Conclusion:
• In some cases the date of discoverability will
be a much later than the date of the accident. The limitation
period will not commence until the claimant knows or ought to have
known that there is fault which is actionable.
• The Court of Appeal decision in Gillett
reinforces the Court's decision in Baker-Morrison v State of
New South Wales [2009] NSWCA 35 which was a victory for all
plaintiffs and effectively extends the limitation period in many
matters.
• The Court also noted once again the
undesirability of having the limitation issue determined as a
separate question.
Tony Kulukovski
Principal
Thompson Cooper Lawyers
30 August 2012
