20 It is important to note that the Limitation Act does not define the term "fault" as a discoverable fact under s 50D(1)(b). The same observation was made by Kaye J in Caven v Women's and Children's Health [2007] VSC 7 when considering s 27F(1)(b) of the Limitation of Actions Act 1974. In that connection his Honour said at [56]:
"The Act does not define the term "fault". In some other contexts, such as s 5(1A), it uses a different phrase, namely "act or omission". It is arguable that the use of the different term "fault" evinces a legislative intention that the plaintiff must know, or ought to know, not simply of the existence of the act or omission which caused the injury, but also that the injury was caused by a legal wrong. However, it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights…"
21 The construction which his Honour ultimately adopted (and with which Johnstone DCJ concurred) was to construe the word "fault" in s 50D(1)(b) to mean act or omission such that, as a discoverable fact, it related to "the time at which the plaintiff knew, or ought to have known, that there was a causative link between the defendant's conduct and the injury suffered". I propose to adopt the same construction. Since there is nothing in the statutory language to qualify the fact of a causal connection by terms such as sole, dominant, direct or proximate, for the purposes of determining whether relief should be granted, it is sufficient if the defendant establishes that the plaintiff knew or ought to have known that NAIQ was one of the entities arguably responsible for health and safety of independent contractors in the boning room or at the abattoir.
22 On the hearing of the motion it was common ground that this was the single issue for determination, the resolution of which would determine whether the three year post discovery limitation had expired as at the date of the filing of the statement of claim. The remaining matters bearing on that question, namely knowledge of the fact that the injury had occurred, as provided for in s 50D(1)(a), and that it was sufficiently serious to justify the bringing of a cause of action, as provided for in s 50D(1)(c), were not contentious.
23 In order to resolve the question posed by s 50D(1)(b) it is necessary to set out the facts giving rise to the plaintiff's claim.
The material facts
24 In June 2000 the plaintiff commenced work as a boner at an abattoir known as Rockdale Beef situated in Leeton, New South Wales. At this time she was employed directly by Rockdale Beef. She worked in the boning room from the time she commenced work up to and including the date of the injury.
25 It would appear that some time in June 2000 Rockdale beef resolved to alter the arrangements under which its labour force was engaged. RACS, trading as Australian Contracting Services (ACS), was either engaged by Rockdale Beef to convert the labour force at the abattoir from employees to independent contractors. Individual workers were invited to make the necessary transition to individual contracts through ACS and, to that end, various documents were generated, including information about terms and conditions of the contracts of employment, rates of pay, and other matters generally bearing upon the respective rights and obligations of the contracting parties.
26 It would also appear that coincident with the period of transition occasioned by the shift in the way that labour was engaged, NAIQ was either brought into existence by Rockdale Beef or utilised by them to be the corporate vehicle through which workers in the boning room would receive instruction and direction.
27 It is not in dispute that well before the plaintiff sustained the injury she had made the transition from being an employee to independent contractor. I am satisfied that this occurred in June 2000 at the earliest and August 2001 at the latest. The extent to which she was aware of any contractual arrangements between Rockdale Beef, RACS and NAIQ as, respectively, the owners of the abattoir, the labour hire company and the service company through which the labour force was managed and directed on a daily basis, whether that be at the time she contracted as an independent contractor or at any subsequent time up to the date of injury, is the question at issue.
When did the limitation period expire under Division 6 of the Limitation Act?
The defendant's submissions
28 The defendant submitted that at the very latest by August 2001, the plaintiff was provided with information advising her that NAIQ was assuming the management of the boning room. This is borne out, it was submitted, by a document entitled "NAIQ Rates" under which she accepted the rates at which she would be paid as a contractor. She signed that document on 2 August 2001. This and related documents (which it was submitted I should be satisfied by inference were created and circulated around that time) were annexed to an affidavit of Kate Louise Burrows filed by the defendant in support of the motion. It was the defendant's primary submission that having regard to these documents as a whole, and in the absence of any evidence from the plaintiff raising a contrary inference, the fact of the identity of NAIQ as the entity at fault was known to the plaintiff, or ought to have been known to her, as at the date she suffered the injury. Accordingly, the cause of action was discoverable within three years of that date such that by 13 November 2006 the action was no longer maintainable.