The knowledge required of the plaintiff for s 50C and s 50D of the Limitation Act
236Alltrack has not established that either Ms Kay or Ms May knew that Alltrack was at fault prior to 20 September 2009, although it has, in my view, established that Ms May ought to have known that Alltrack was at fault prior to that date. The question is whether the plaintiff ought to have known that Alltrack was at fault. In other words, is the plaintiff fixed with Ms May's constructive knowledge?
237Alltrack submitted that the reference in s 50D of the Limitation Act 1969 to the plaintiff's knowledge ought properly be construed as being a reference to the knowledge of the plaintiff either on her own account or by reason of the knowledge of her solicitor (whether actual or constructive), which is imputed to her. Mr Lloyd referred to the following passage from Bostick Australia Pty Limited v Liddiard [2009] NSWCA 167 in support of his contention:
37 His Honour said, at [65], that on the facts as he had found them and from Mr Liddiard's statements of 18 March 2004, 13 December 2004 and 13 October 2006, Mr Liddiard "had no sufficient awareness of the role of Bostik in the system of work he followed when injured". His Honour found that the opportunity to know or have any awareness of Bostik's role did not occur until 3 November 2006, when Mr Trainor received the letter dated 31 October 2006 from Bostik's solicitor, which attached Mr Lynch's statement of 23 March 2004. His Honour concluded, that up until 3 November 2006, Mr Liddiard:
"... understood his work was for and at the direction solely of Mr Lynch as his employer and he had no knowledge of the arrangements which were later shown to exist between Bostik and Brolton."
238Mr Lloyd submitted that the passage implied that the knowledge of Mr Liddiard's solicitor was relevantly Mr Liddiard's knowledge for the purposes of determining when the cause of action was "discoverable" within the meaning of s 50C of the Limitation Act 1969. Mr Lloyd accepted that there was an apparent inconsistency between this finding (and what it implied) and other decisions of the Court of Appeal to the effect that it was the plaintiff's knowledge that was determinative.
239I do not regard the passage in Bostick Australia Pty Limited v Liddiard as standing for the proposition for which Mr Lloyd contended. In that case Mr Liddiard's cause of action arose on 30 January 2003. His statement of claim was filed on 13 June 2007. Accordingly, the relevant date for considering when the cause of action was "discoverable" by Mr Liddiard was 13 June 2004. Because Mr Liddiard's solicitor did not discover the arrangements between Brolton Industries Pty Limited, the plaintiff's employer, which was relevantly the labour hire company, and Bostik Australia Pty Limited (Bostik), the occupier of the premises at which the plaintiff was injured, until 3 November 2006, the plaintiff himself would have had no means of knowing that he had a cause of action against Bostik until at least that date. That was sufficient to have the effect that the proceedings were brought within time. Accordingly, it was not necessary to determine when after 3 November 2006 the plaintiff knew what his solicitor knew, or indeed whether his solicitor's knowledge ought be attributed to him, since even if the plaintiff himself knew on that date, the proceedings were within time.
240The construction of s 50C and s 50D and in particular the constructive knowledge (imported by the words "ought to know" in s 50D(1)) was addressed by Basten JA in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454. His Honour (with whom Ipp and Macfarlan JJA agreed) said:
The objective test - "ought to know"
[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.
[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.
[Emphasis added.]
241In State of New South Wales v Gillett, the Court of Appeal was invited to reconsider the correctness of Basten JA's reasoning in Baker-Morrison v State of New South Wales. Beazley JA (McColl, Campbell, Young and Whealy JJA agreeing) upheld his Honour's construction of s 50D, although the challenge to the reasoning was focussed on the last sentence of [57] rather than the relevant passage for present purposes, which appears in [59] and is emphasised in the extract above.
242This construction of s 50D was applied in Baggs v University of Sydney Union [2013] NSWCA 451 where the plaintiff's engagement of solicitors to advise her and act in her interests was regarded as being sufficient to show that she had not failed to take reasonable steps or that the taking of all reasonable steps required her to second-guess her solicitor's advice or to seek a second opinion: see [34]-[36] per Meagher JA (Macfarlan and Hoeben JJA agreeing).
243On the basis of Basten JA's reasoning in Baker-Morrison v State of New South Wales, it is necessary to enquire whether there was any relevant failure on Ms Kay's part to take reasonable steps. In February 2009, Ms Kay had engaged a reputable firm to act on her behalf. Ms May, who took over the matter in July 2009, is an experienced solicitor with an established reputation. In my view, Ms Kay was entitled to assume that she would be given all relevant advice and information by Ms May. Ms Kay was not reasonably required to interrogate Ms May as to the steps she was taking or insist on perusing for herself the documents produced by UGL on subpoena on 28 July 2009 on the footing that her own expertise might shed further light on them. Ms Kay's lack of knowledge that Alltrack was at fault prior to 20 September 2009 was a result of Ms May's failure to appreciate the gravamen of the documents she had examined and her failure to advise the plaintiff accordingly. Ms Kay's ignorance was not a result of any failure by her to take reasonable steps.
244Accordingly, Alltrack has failed to establish that Ms Kay knew or ought to have known that her injury was caused by Alltrack's fault at a date prior to 20 September 2009. Her claim is therefore not time-barred.