Baggs v University of Sydney Union

The injury and commencement of proceedings against the Union 3On 21 May 2003 Ms Baggs was injured when she slipped and fell down a flight of stairs in the Wentworth Building at the University of Sydney during a fire drill. At the time Ms Baggs was employed by the University as a clinical psychologist. Immediately before the fire alarm which triggered that drill Ms Baggs, as a patient, was attending a medical appointment in the Medical Centre on the first floor of the building. 4On 26 May 2003 she lodged a workers compensation claim against the University. In January 2010 she commenced proceedings against the University as owner and alleged occupier of the building. It will be necessary later to return to what happened in the earlier part of the period between 2003 and 2010. The University filed a defence admitting that in May 2003 it was the owner of the building, but denying that it was at that time the occupier of the building or the fire stairs. On 31 March 2010 the solicitor for the University advised that the Union was the occupier of the building in May 2003. 5On 28 April 2011 Ms Baggs commenced proceedings against the Union. By a notice of motion filed on 31 August 2012 the Union sought an order that the proceedings be dismissed or stayed permanently because the claim had not been brought within the "3 year post discoverability limitation period" under s 50C(1)(a). 6That is a three year period running from, and including the date on which, the cause of action is "discoverable" within the meaning of s 50D(1). That subsection provides: "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 brining of an action on the cause of action." 7In response to the Union's application, Ms Baggs contended that she did not know "the fact that that her injury was caused by the fault of the defendant" until after 28 April 2008, which was three years before the proceedings against the Union were commenced.

The decision of the primary judge 8The issue as to the date on which Ms Baggs' cause of action in negligence against the Union was "discoverable" was heard and determined as a separate question. In her judgment delivered on 4 March 2013 the primary judge held that in May 2003 Ms Baggs knew the fact in s 50D(1)(b) with respect to her cause of action against the Union: Baggs v University of Sydney Union [2013] NSWSC 152 at [53]. That conclusion made it unnecessary for her Honour to address the respondent's alternative argument that Ms Baggs ought to have known that fact before 28 April 2008. Section 50D(2) provides that 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".

The issues in the proposed appeal 9Ms Baggs has filed an application for leave to appeal from that decision and a notice of appeal. The respondent, by a notice of contention, seeks to uphold the primary judge's conclusion on the basis that her Honour should have found that Ms Baggs ought to have known before 28 April 2008 that her injury was caused by the fault of the Union. Accordingly, there are two issues in the appeal. The first is whether the primary judge erred in finding that Ms Baggs knew in late May 2003 that the injury was caused by the fault of the Union. The second is whether the primary judge should have found that Ms Baggs ought to have known that fact before 28 April 2008. 10The primary judge has not yet made a formal order dismissing the proceedings, notwithstanding her conclusion that the claim cannot be maintained. That being the case, leave to appeal is probably required. In my view leave to appeal should be granted, the appeal allowed and the respondent Union ordered to pay the costs of the application and appeal. The reasons for those conclusions follow.

Relevant principles 11The introductory words of s 50D(1) make clear that each of the facts in paragraphs (a), (b) and (c) concerns the cause of action which is the subject of the limitation inquiry. The "fact" in (b) describes 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": per Basten JA in Baker-Morrison v New South Wales [2009] NSWCA 35; 74 NSWLR 454 at [28]. To know that fact is not to be able to articulate the or a primary cause of action. It is sufficient that the key factors necessary to establish a legal liability be known. 12Baker-Morrison was a case in which the plaintiff, a young child, was injured when her fingers became caught in automatic sliding doors which opened as a person entered through them into a reception area. It was held that the plaintiff and her "capable parent" (see s 50F(4)) could not have known that the injury was caused by the fault of the defendant State until they became aware of the availability and reasonable practicability of a precaution which, if taken, would have prevented the injury. Until that time, the parent could not have been aware "that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety": Baker-Morrison at [40]; applying the same approach as was taken by the High Court to the operation of s 60I(a)(iii) in Dedousis v The Water Board [1994] HCA 57; 181 CLR 171 at [27]. The position was summarised by Basten JA at [39] in the following terms: "As explained in [Drayton Coal Pty Ltd v Drain [1995] NSWCA 131], 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 the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor the underlying approach in Dedousis and Drayton." 13Construed in this way, s 50D(1)(b) describes a conclusion involving an evaluative judgment as to the causal relationship between injury and fault; the latter referring to fault which engages or establishes legal liability rather than merely to moral blameworthiness. This construction was upheld by this Court in New South Wales v Gillett [2012] NSWCA 83. There Beazley JA (McColl, Campbell, Young and Whealy JJA relevantly agreeing) said: "[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. ... 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." 14The reference to Bostik is to the decision of this Court in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167. There the plaintiff was injured on factory premises owned and occupied by Bostik. Another company, Brolton, operated an engineering business in part of the factory. Brolton also supplied labour to Bostik and used Bostik's equipment. The plaintiff was unaware of these arrangements between Bostik and Brolton. At the time of his injury the plaintiff's services were being provided to Bostik by Brolton. The plaintiff commenced proceedings against Bostik more than three years after suffering his injury. The issue was whether that claim could not be maintained because of the application of s 50C(1)(a). Beazley JA (Ipp and Basten JJA relevantly agreeing), after referring to what Basten JA had said in Baker-Morrison at [39], continued at [49]: "It follows that the trial judge was correct in concluding that (the plaintiff) did not know the fact that the injury was caused by the fault of Bostik until after his solicitor had received a copy of Mr Lynch's 23 March statement, as he did not know of the relationship between Bostik and Brolton. It follows that (the plaintiff's) cause of action was not discoverable until November 2006." 15Basten JA added at [130]: "... A defence based on the Limitation Act 1969 (NSW), s 50C, was rejected at trial. I agree with Beazley JA that the challenge to this finding should be dismissed because the cause of action was not discoverable until the plaintiff knew or ought to have known of a reasonably arguable case involving a connection between his injury and fault on the part of [Bostik]. The relevant facts included the contractual and practical relationship between Brolton and [Bostik]."

Did Ms Baggs know? 16The factors necessary to establish the liability of the Union to Ms Baggs include that it is a legal entity able to be sued; that on 21 May 2003 it was the owner or occupier of the building and as such had the care, control and management of it, including the fire exit stairs; and that it had failed to take a precaution which a reasonable person in its position would have taken to avoid a foreseeable risk of injury to persons using the fire stairs: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at [11]. 17The primary judge concluded that Ms Baggs was aware of the fact in s 50C(1)(a) in relation to her claim against the Union. That conclusion was based primarily on a statement in the workers compensation claim form completed by Ms Baggs on 26 May 2003. That form included the following typewritten question and handwritten answer: "In your opinion, who was responsible for the accident? And Why? The fire exit was not adequately maintained. The false alarm in combination with lack of lighting + debris on stairs meant I could not see to exit safely. I believe the University Union was negligent - did not maintain a safe environment." (italics indicate answer) 18After referring to Baker-Morrison and Gillett, the primary judge continued at [52]: "I find it difficult to interpret the plaintiff's belief that the University Union was negligent as anything other than an attribution of fault on the basis that she believed (and on reasonable grounds) that the Union was the occupier of the Wentworth Building and that the failure to maintain the fire stairs and to ensure they were free of debris and well lit was their responsibility, breach of which rendered them liable for her injuries. I am satisfied that those interrelated facts were within her understanding and evaluation in May 2003 without the need for professional advice and accordingly, that she knew the identity of the defendant as the entity at fault for the purposes of s 50D(1)(b). As Basten JA observed in the extract from Baker-Morrison above: '... It is rare that facts will be known in any absolute sense; rather, as a practical matter, the person will have a belief that certain matters can be established ...'" (emphasis added) 19Ms Baggs submits that this conclusion is based on findings of fact which were either inconsistent with or not supported by the evidence and accordingly involved error. The findings which are submitted to be wrong are those as to Ms Baggs believing that the Union was a legal entity separate from the University; that the Union was the occupier of the Wentworth Building; and that the Union as occupier had failed to discharge its duty to maintain the fire stairs and ensure that they were free of debris and well lit. The first of these findings is to be implied from her Honour's conclusion. The others are express. 20The evidence before the primary judge established that in May 2003 the fact was, and Ms Baggs knew, that the Wentworth Building contained several clearly visible signs which read "University of Sydney Union, Wentworth Building" or "Wentworth Building, University of Sydney Union" or "The University of Sydney Union, Wentworth". 21In her affidavit evidence Ms Baggs said: "At the time of the accident, I was not aware as to who was responsible as to the state of the subject fire stairs. What I did know was that the subject building was part of the land owned by my employer SU." 22She was cross-examined as to her understanding concerning the Union and the occupation of the Wentworth Building. In relation to the first subject she gave the following evidence (Tcpt 19/02/13 p 9; White 369): "Q: The union itself you understood was a separate body from the university? A: Um, I didn't understand that it was a separate body, no. Q: What did you understand the University of Sydney Union did? A: We used to go to the union bar for drinks and cafes and, um, I just assumed that, that being a member of the union was like you got discounts on coffee." The answer that she did not understand the Union to be a "separate body" from the University was not challenged or further explored in cross-examination. 23Ms Baggs agreed that the Wentworth Building was commonly referred to as the "union building". She was then cross-examined upon the answer in the claim form extracted above (Tcpt 19/02/13 p 17; White 377): "Q: So, that you knew as of 26 May 2003 that the university union was negligent, in your view, is that correct? A: That the person who owned the building was negligent. Q: Well, the university union is the one that you thought was responsible as at 26 May 2003. A: Well, that's, yeah, the union owned the building. That's because it was written everywhere. HER HONOUR: Q: You believed that the owner of the Wentworth Building was the union? A: Yes." 24These answers were to be understood in the light of Ms Baggs' earlier evidence and not with the benefit of the knowledge which Ms Baggs had acquired at a much later stage that the Union was a separate entity and that, as such, it occupied the Wentworth Building. The cross-examination did not return to the subject of the relationship between the Union and the University. 25Finally, during the course of Ms Baggs' re-examination, the primary judge asked the following question (Tcpt 19/02/13; White 385): "HER HONOUR: Q: So even though you had a belief that the union was responsible, and you said as much in that very early claim form, that belief was overtaken by advice from Mr Pangelis that on a title search he understood that the owner and person responsible for the stairs was not the union but the university, and you accepted that advice? A: Correct." 26That answer was to be understood in the same way. The reference to Mr Pangelis is to a Mr Panaretos of the firm Steve Masselos & Co, who Ms Baggs consulted in September 2003. That firm wrote to Ms Baggs by letter dated 23 September 2003 (White 260), advising as follows: "We enclose herewith Title Search received in relation to the Wentworth building located at Sydney University. You will notice from the First Schedule on page 1 of the search that the registered owner of the property is 'the University of Sydney'. We understand that your fall occurred in the fire escape of the building. As this forms part of the common property of the building the care and control of that area remains with the University of Sydney. In this case however the University is also your employer. In circumstances where the employer's primary liability arises as an occupier of premises, rather than through any feature relating to the employment itself, it will still be the provisions of the Workers Compensation Act that will prevail. In short this means that in order to continue a claim against your employer for damages, you need to be assessed as being 15% or greater whole person impaired. There are other significant limitations to this course of action, the most notable of which is that damages can no longer be obtained for pain and suffering." 27Contrary to the challenged findings of the primary judge, which are referred to in [19] above, this evidence established the following. First, Ms Baggs did not believe that the University and the Union were separate legal entities. Accordingly, her statement in the claim form that the "University Union was negligent" could not be understood as indicating that she believed that the Union, as distinct from the University, had been negligent. Secondly, Ms Baggs believed that the Union, and accordingly the University, owned the building. That was contrary to the fact, which was that the Union was the occupier of the building and that the University was the owner. 28Those being the findings the primary judge should have made as to Ms Baggs' belief, the primary judge erred in concluding that Ms Baggs knew that her injury was caused by the fault of the Union. Ms Baggs' understanding was that the Union, as part of the University, owned the building and was at fault. In the language of Baker-Morrison, she did not know that the Union was a separate legal entity from the University or that the Union as distinct from the University occupied the building and was responsible for the care and control of the fire stairs. Each was a matter which Ms Baggs was required to know as a factor necessary to establish legal liability on the part of the Union. 29The Union argued that this was a case in which the plaintiff did know the identity of the "defendant" for the purposes of s 50D(1)(b). Ms Baggs' answer in the claim form showed that she believed the Union had been negligent and that the Union was the correct defendant. That argument ignores Ms Baggs' unchallenged evidence that she believed that the Union was part of the University. When the claim form is read as explained by that evidence it reveals a belief that the University was at fault, which is not the relevant fact for the purposes of s 50C(1)(a). 30That conclusion makes it necessary to consider the respondent's notice of contention.

Ought Ms Baggs have known? 31The Union submits that the fact that Ms Baggs' injuries were caused by its fault would have been ascertained had she taken "all reasonable steps before June 2005 to ascertain that fact". In order to understand the significance of June 2005 it is necessary to record briefly the events following the accident to the extent that they have not already been referred to. They are not controversial. 32In September 2003 Ms Baggs contacted two law firms to inquire about her rights. The first was Steve Masselos & Co, which advised by its letter dated 23 September 2003. That advice was that the University was the owner of the building and the entity responsible for its care and control and that she could not pursue a common law claim against the University, which was also her employer, unless she was assessed as having 15 per cent or greater whole person impairment. That letter specifically advised: "Although premature, it is most unlikely that we would recommend that you pursue a claim for damages against your employer. You will however be entitled to lump sum compensation on the provisions of the Workers Compensation Act once your injuries have stabilised. In any event, before a decision is made as to which course of action should be taken we would obtain appropriate medical reports from your specialist to assess the level of your whole person impairment. We note you are contemplating surgery sometime in the near future and we would recommend that any legal action be delayed for a period of approximately six months following surgery. There is a three year limitation period dating from the date of accident, in which proceedings must be filed against your employer should you elect to proceed at Common Law." 33In cross-examination Ms Baggs said that she accepted that advice and did not instruct that solicitor to pursue a claim for work injury damages against the University. 34In November 2003 Ms Baggs also sought legal advice from Maurice Blackburn Cashman. She had no independent recollection of conferring with a Mr Purvis of that firm, although she received a letter, giving him as the reference, which appointed a conference on 1 December 2003. She gave conflicting evidence in cross-examination as to whether she "would have been" talking to that firm only about her workers compensation claim. There was some subsequent correspondence from Maurice Blackburn Cashman dated 14 July 2004, 1 December 2004 and 17 June 2005. The first letter advised of an appointment for a medical examination on 15 September 2004. It is headed "Your Workers Compensation Claim". The second, bearing the same heading and dated 1 December 2004, requests Ms Baggs to contact the writer. The third, bearing the same heading, notes that there had been no contact following the letter of 1 December 2004 and concluded by saying that if the firm did not hear from Ms Baggs within 28 days of 17 June 2005 it would "close your file and throw your papers away". 35These being the relevant circumstances, it is argued that Ms Baggs did not take all reasonable steps before June 2005 to ascertain the identity of the party against whom she had a cause of action for negligence. It is said that the enquiry made by the initial solicitors was totally inadequate and that had Ms Baggs sought further advice from Maurice Blackburn Cashman in respect of the same subject that firm "would have taken full instructions and carried out appropriate enquiries". 36There are at least two difficulties with this argument. First, it is not suggested that the applicant appreciated or had any basis for believing that the advice which she had received from the first firm of solicitors was not given carefully or that it was not correct. That being the position, from her perspective there is no reason suggested as to why, acting reasonably, she was required to seek a further opinion. Secondly, there were, on the basis of the advice that she had received, significant limitations on her right to recover from the University in a claim for work injury damages. That advice also was that she should delay considering whether to commence any proceedings until her condition had stabilised following surgery. As a result there was no urgency in her pursuing any claim she had at common law. In these circumstances it is not shown that the taking of all reasonable steps required Ms Baggs before June 2005 to seek advice from a second firm of solicitors in relation to a matter on which she had already received a written opinion. The notice of contention should be dismissed.

Proposed orders 37Leave to appeal should be granted and the appeal should be allowed. The orders made by the primary judge, including the order as to costs, should be set aside. The respondent should pay the applicant's costs of the application for leave to appeal, the appeal and the costs of the separate question before the primary judge. 38HOEBEN JA: I agree with Meagher JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2013