Best v Rosamond [2020] NSWCA 90 | Case summary

Consideration

This appeal turns upon the correct application of ss 50C and 50D of the Limitation Act which are set out at [4], above.
The appellant accepted that the primary judge had identified the correct test for the operation of ss 50C and 50D of the Limitation Act, being that explained in Baker-Morrison. It was the application of the facts to that legal test which was the subject of complaint. In Baker-Morrison Basten JA, (with whom Ipp JA and Macfarlan JA agreed) in addressing s 50D(1)(c) and actual knowledge, said: "[41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is 'the bringing of an action on the cause of action', an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being 'of a decisive character' for the purposes of s 57B(1)(c), set out at 458 [12] supra. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one 'knowing those facts and having taken the appropriate advice on those facts' would hold the identified opinion. [42] The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, for example, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind. [43] It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004, s 347. The statement of claim in the present case bore such a certification which read: 'I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success.' [44] A further element of the broader legal context is that, for a person such as the plaintiff under legal incapacity, proceedings may not be commenced except by a tutor; nor may the tutor commence proceedings except by a solicitor: Uniform Civil Procedure Rules 2005, r 7.14. To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made."
In relation to s 50D(2) and what a person "ought to know" about the "fact" identified in s 50D(1)(c), in Baker-Morrison Basten JA said: "[57] The next question was whether the plaintiff's mother ought to have known each of the facts identified in subs 50D(1). The answer to that question must depend upon the effect of subs (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. [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."
In Frizelle v Bauer [2009] NSWCA 239, Basten JA (with whom McColl JA agreed) returned to the issue of knowledge for the purposes of s 50D(1)(c) in the context of a case where the plaintiff sustained serious injuries in a fall on 2 July 2003 and sought legal advice on 17 July 2003 but did not commence proceedings until 5 April 2007. The question 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). Basten JA said: "[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. [28] The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt. [29] At the heart of the applicant's claim was the suggestion in the affidavit, not fully supported when taken into account with the cross-examination, that she did not believe that she had a cause of action in relation to an injury which was sufficiently serious to justify the bringing of the action because of advice received from her solicitors. His Honour found that the injury 'obviously was a serious one and the plaintiff conceded that in her evidence': Judgment, p 8. He then noted that there was a further question as to whether it was sufficiently serious to justify the bringing of an action, and continued (pp 8-14) to consider whether that was so. In the passages set out above, he concluded that it was sufficiently serious and that the applicant appreciated that fact. [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."
The test for determining what a person "ought to know" about the "fact" identified in s 50D(1)(c) identified by Basten JA has been applied as the law in NSW since Baker-Morrison. In Gillett, Beazley JA (with whom McColl, Campbell, Young and Whealy JJA agreed) said: "[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."
The present case involves a straightforward assault. The primary judge, having heard all of the evidence, came to the view that the steps actually taken by the appellant were inadequate and that reasonable steps ought to have been taken by the appellant to obtain medical and legal advice. Had those reasonable steps been taken, it would have been clear to the appellant that he had a sufficiently serious injury to justify the bringing of an action on the cause of action.
Detailed findings of fact were made by the primary judge relevant to this conclusion. The only material fact challenged by the appellant in the notice of appeal restated the global complaint of the appellant, namely: "[t]he appellant had commenced proceedings on the cause of action within the time prescribed by s.50C of the Limitation Act 1969 due to the fact that he did not discover that he had a worthwhile action until after 17 August 2015."
There was no statement filed by the appellant identifying the findings of fact which were challenged and the alternative findings contended for, as required by the Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2). This is an important omission in the present case as the appellant's challenge essentially rests on overturning numerous findings of fact, including demeanour based credit findings. Principal amongst those findings was his Honour's finding that the appellant was not a satisfactory or reliable witness. No submission was made that this finding should not have been made. A number of other findings were made about beliefs asserted by the appellant which were also, in part, demeanour based credit findings. It was not submitted that any of the facts found by the primary judge were glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29].
To the limited extent that a challenge to the facts found by the primary judge was ultimately pressed in oral submissions, I reject that challenge. The critical matters emphasised by the appellant in his oral submissions demonstrate that the ultimate conclusion of the primary judge about what the appellant ought to have known about the fact identified in s 50D(1)(c) was correct.
First, the appellant emphasised in submissions that prior to the critical date, 17 August 2015, he had sought medical advice and was receiving treatment. That is true to a point. The facts found by the primary judge, however, require that submission to be considered in a quite different light: 1. as at 6 February 2015, the appellant was aware that he had suffered a "serious injury". By then, he had undergone two surgeries; 2. between 6 February 2015 and when the appellant saw Dr Martin again on 1 October 2015, the appellant continued to experience double vision (on elevation) and restriction in elevation; 3. the observations of significance made by Dr Martin on 1 October 2015, double vision (on elevation) and restriction in elevation, were applicable to the period between 6 February 2015 and 17 August 2015. The problems and difficulties that the appellant had experienced in January and February 2015 had not gone away by 17 August 2015; and 4. whilst Dr Martin's views on 30 January 2018 may have differed in degree, they were not dissimilar from what he found in January and February 2015.
Thus, a medical opinion, had it been obtained prior to 17 August 2015, would have confirmed that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
These factual findings, which were amply justified, do not give rise to any reason to doubt the ultimate conclusion of the primary judge that, acting reasonably, the appellant's cause of action was discoverable within the meaning of ss 50C and 50D before 17 August 2015.
Secondly, the appellant emphasised in submissions that as at 17 August 2015 he believed, allegedly on the basis of the medical advice received, that his left eye condition would heal. The primary judge rejected that evidence. In doing so his Honour found: 1. the effects of the appellant's eye injury continued to be suffered until August 2015. His Honour noted that the appellant referred, in his evidence in chief, to continuing to suffer double vision above 10-15 degrees, a sensitivity to light and other ailments; 2. on 4 July 2015, the appellant made a written statement to the police for the purposes of criminal proceedings, in which he said that as a result of the assault he had suffered a "permanently dilated left pupil" in the left eye and "damaged nerves". His Honour found that this statement related to the appellant's understanding of his injuries as at 10 January 2015, the date of the assault; and 3. the appellant contended that the effects or disabilities from his eye condition, as the appellant had described them, had diminished his capacity to earn and his enjoyment of life. His Honour found that those effects or disabilities manifested before 17 August 2015.
The difficulty for the appellant in advancing this part of the case was demonstrated by the following exchange in oral argument about the subject of the police statement described at sub-paragraph (2) above: "BELL P: How do you interpret the answer 'yes' at black 28 W. Is that yes, assenting to the proposition that he continued to have a serious injury as at July 2015 when he went to see the police? ANDREWS: I'm just trying to put it in context. I think I'd have to say in context, it is a concession that he continued to have a serious injury. …"
No basis has been shown to doubt the findings of the primary judge on this topic. Indeed, the content of the written statement to the police made on 4 July 2015 for the purposes of a criminal prosecution of the respondent made the appellant's submission that, prior to 17 August 2015 he believed his left eye would heal, untenable.
Thirdly, the appellant emphasised in submissions his belief that he was not aware that he was suffering symptoms which would give rise to a psychiatric injury. This evidence of belief was considered at length by the primary judge who made the following findings: 1. the appellant's internalised and subjective concerns regarding his mental state were significantly falsified in cross-examination; 2. public events, including repeated court attendances involving the respondent and the respondent's former wife, which the appellant attended, do not appear to have been drawn to the attention of the psychiatrist who diagnosed the appellant. Had they been, his Honour considered that they would have had a material effect upon the diagnosis; 3. there was no indication of any objective assessment of any complaints by the appellant, or concerns of professional service providers, about the appellant's mental health prior to his assessment on 14 February 2019, virtually four years after the assault. The appellant adduced no evidence to corroborate his complaints. His Honour found that the appellant presented as a man confident and secure in himself; and 4. his Honour was not persuaded that the appellant had established the existence of a Post-Traumatic Stress Disorder or any other psychiatric condition.
In any event, the primary judge concluded that even if the appellant's claim about mental harm was accepted, this may have inflated the quantum of damages but it did not detract from the conclusion that, had the appellant taken reasonable steps to obtain legal and medical advice prior to 17 August 2015, he would have known that his injury was sufficiently serious to justify bringing an action on the cause of action which the appellant knew was available against the respondent. The primary judge's conclusion was correct.
Fourthly, the appellant's submissions emphasised his belief that he only became aware of the extent of the injury and the lasting impact it would have upon him after 1 October 2015. Detailed findings rejecting that evidence were made by the primary judge. In particular, his Honour found: "[30] At least from 6 February 2015 until he saw Dr Martin again on 1 October 2015, although there were some improvements, he continued to experience double vision (on elevation) and restriction in elevation. I infer that the observations made by Dr Martin on 1 October were no less applicable in the period from 6 February to 17 August 2015. Put another way, insofar as his eye injury was concerned, there was no suggestion that the problems and difficulties that Mr Best had experienced in January and February 2015 had gone away by 17 August 2015."
The primary judge held that even if his Honour were to believe the appellant's evidence that he began to struggle from the emotional impact of the assault only later, in October 2015, this did not address the critical question: "[35] … But for reasons I have referred to, in my view, Mr Best had enough knowledge (for the purpose of s 50D(c)) of the material facts to lead a reasonable person in the position to believe he had a potentially good claim for a not insubstantial sum of damages. A potential claim for a claim for mental harm, not known prior to 17 August 2015, may have inflated the quantum, but it did not detract from a finding that, [had] Mr Best taken reasonable steps to obtain legal and medical advice prior to 17 August 2015, he would have known that his injury was sufficiently serious as to justify bringing an action on the cause of action which (by reason of his admission of the knowledge of facts in s 50D(1)(a) and (b)) Mr Best knew was available against Mr Rosamond."
No persuasive reason was advanced to suggest why that finding was incorrect.
These findings of fact provide a firm foundation for the ultimate conclusion of the primary judge that, acting reasonably, the appellant's cause of action was discoverable within the meaning of ss 50C and 50D prior to 17 August 2015.
In addressing the relevant legal standard to be applied, the appellant submitted that s 50D provides flexible criteria for the commencement of proceedings, and allows for reference to stability and/or knowledge of the impact and/or prognosis of injuries to determine whether or not they are of sufficient seriousness to justify litigation, referring to Baker-Morrison at [9].
It may be accepted that the steps necessary to satisfy the test of "all reasonable steps" identified in Baker-Morrison are flexible. As Basten JA said (at [58]), "[i]n most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff … to satisfy the element of taking 'all reasonable steps'". Despite the appellant having actual knowledge that he had suffered a "serious injury" as a result of the assault and that he had a "permanently dilated left pupil", that simple step was not taken here in the eight months between the assault and 17 August 2015.
To the extent that the appellant's complaint is that the prognosis for the injury remained unstable prior to the critical date, the primary judge rejected the appellant's evidence that this was so. Whilst Baker-Morrison does not specifically refer to questions of prognosis or stability, the additional remarks of Campbell JA (with whom three other judges agreed) in Gillett at [131] provide that the section requires that an injured person 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. On the findings made by the primary judge, the question of whether the appellant had sufficient prospects of recovering enough damages for it to be worthwhile litigating is not an issue in this case. In Frizelle, Basten JA accepted the submission that the prognosis of the applicant "remained somewhat uncertain" prior to the critical date but nevertheless concluded that knowledge for the purposes of s 50D(1)(c) was established. This was because the primary judge in that case was correctly satisfied that the impairment of the injured person's earning capacity, and the likelihood that it would continue, was known to the applicant prior to the critical date.
The appellant's submission that some uncertainty about the "stability and/or knowledge of the impact and/or prognosis" of his injury cast doubt upon the conclusion of the primary judge should be rejected. There is no reason to doubt the conclusion of the primary judge that if the appellant had seen a solicitor at any time in the many months after the assault, he would have been informed that if his version of events was accepted the injury he suffered in the assault was sufficiently serious to justify the bringing of an action on the cause of action.
The appellant also submitted that to determine whether an injury is sufficiently serious, a person must know both that the symptoms are serious, and that those symptoms or injury provide a cause of action. The question of a psychiatric injury requires knowledge both that the symptoms are serious, and that there is an actionable injury.
As to the first issue, the essentially unchallenged findings of the primary judge already described establish that the appellant actually knew prior to the critical date that he had suffered a serious injury as a result of the assault. The submission does not address the findings of the primary judge about the failure of the appellant to consult a solicitor and the likely result of such a consultation, had it occurred, in this case.
As to the second issue, psychiatric injury, there is no reason to doubt the conclusion of the primary judge that whilst a potential additional claim for mental harm may have increased the quantum of damages, the existence of such a claim did not detract from the conclusion that had the appellant sought legal and medical advice prior to 17 August 2015, he would have been advised that his injury was sufficiently serious as to justify bringing an action against the respondent for assault.
The appellant accepted that the need to seek medical or legal advice is tested objectively, but submitted that "litigious exuberance is not the standard required by the legislation" (referring to Ditchburn v Seltzam Ltd (1989) 17 NSWLR 697 at 704). It was submitted to be for this reason that the legislation addresses the issue as being "sufficiently serious" and considers the question of worthwhile actions (referring to Baker-Morrison at [41]-[46]).
It may be accepted that "litigious exuberance" is not the standard required by the legislation and that what must be shown a plaintiff must know, or "ought to know" in the case of injury, is the fact that the injury was "sufficiently serious" to justify the bringing of an action on the cause of action. In many ways this submission attacks a straw man. The primary judge addressed the correct test in ss 50C and 50D and did not apply a standard of "litigious exuberance". The correct application of the test is clear in a number of passages, including: 1. in the conclusions of the primary judge at [24] that, "the defendant has made out the requisite fact in s 50D(1)(c). In summary, although he may not actually have known that his injury was sufficiently serious to justify the bringing of an action on the cause of action, that fact would have been ascertained, prior to 17 August 2015, if Mr Best had, as he ought to have done, taken reasonable steps to obtain legal and medical advice and information"; and 2. in the conclusions of the primary judge at [31], "in my view, Dr Martin's views on 30 January 2018, whilst they may have differed in degree, were not dissimilar from what he found in January and February 2015. Thus, a medical opinion, had it been obtained prior to 17 August 2015, would have supported a claim".
The appellant also submitted that UCPR r 42.35 was relevant here. That rule makes default provision for costs for actions in the District Court where a judgment not exceeding $40,000 is obtained. One critical difficulty with reliance on this provision was pointed out in oral argument: "LEEMING JA: ... Your man shortly after at least the second surgery knew that there was the intentional infliction of sufficient harm to break his eye-socket. He could sue in the Local Court, couldn't he, for assault and win and costs would follow the event. ANDREWS: Yes."
In the present case, where no statutory thresholds intrude, the cause of action was discoverable shortly after the damage was suffered. It is to be borne in mind that ss 50C and 50D are by way of exception to the general provision of a three-year limitation period for claims based on damages for personal injury.
Finally, the appellant submitted that where a reasonable person is of the opinion, having sought medical advice, that their injuries would heal, a reasonable person would be entitled to rely upon such advice. Whether or not, in the abstract, that proposition is correct, the primary judge found to the contrary. The appellant's submissions do not refer to any statement by any medical professional that the appellant's injuries "would" heal. The appellant's counsel accepted that whilst Dr Martin said in his 2018 report that "there was some improvement … [h]e certainly doesn't say the injury had gone away or the injury would go away." There is no reason to doubt the conclusions of the primary judge.

Best v Rosamond

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