Limitation of Actions - Contracts, torts and personal actions - Personal injury cases - Date of discoverability - What a plaintiff knows or "ought" to know - "Constructive knowledge" - Test to be applied.

Limitation Act 1974 (Tas), ss2, 5, 5A, 38A.

Commonwealth of Australia v Smith (2005) NSWCA 478, followed.

Commonwealth of Australia v Shaw [2006] NSWCA 209; Irving v The Commonwealth of Australia [2006] NSWSC 958; Telstra Corporation v Rea [2002] NSWCA 49; Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76, referred to.

Judgment Number: [2008] TASSC 2

1 On 23 November 2001, the appellant filed a writ by which she sought damages for personal injuries from a specialist endocrinologist ("the respondent"). The appellant alleged that in February 1994, when she was 18 years old, the respondent diagnosed her as having a pituitary tumour. Certain medication was prescribed from which the appellant suffered side effects. Certain other consequences were alleged to have flowed from the diagnosis. The appellant alleged the diagnosis was wrong but that she did not become aware of that until 1998. There was no real dispute that any cause of action the appellant had against the respondent arose in or about February 1994. By reference to the Limitation Act 1974 ("the Act"), the limitation period in respect of that cause of action expired in or about February 1997. However the Act did permit an application to extend the limitation period by another three years. No such application was made. Therefore, by reference to the Act as it stood at the date the writ was filed, the action commenced by the appellant was statute barred with no capacity to apply for any extension of time. The respondent pleaded that as part of her defence filed December 2002. Nevertheless, the proceedings continued.

2 The Act was amended by the Limitation Amendment Act 2004. By that amending Act, ss5(1A), 5A and 38A, were inserted in the Act with consequential amendments to the definition section, s2. These provisions took effect on 1 January 2005. They opened the door for the appellant to seek retrospectively an extension of the relevant limitation period to the date of filing of her writ. On 23 September 2005, the appellant filed such an application which was subsequently heard by the Master. The application was made in reliance on the Act, s38A(2), because the appellant's cause of action accrued prior to 1 January 2005. That section permitted a limited extension of any limitation period to three years from the "date of discoverability". To succeed in her application, the appellant therefore needed to satisfy the Master that her date of discoverability was no earlier than 23 November 1998. If it were, the Master had no power to extend. The date of discoverability relied upon by the appellant was 26 November 1998. The Master determined, inter alia, that the appellant's date of discoverability was earlier than 23 November 1998, and dismissed her application. It is from that dismissal the appellant now appeals.

3 For the purpose of his ruling, the Master made certain determinations as to how the relevant provisions of the Act should be interpreted and made findings of fact. It is his interpretation of the law relating to the date of discoverability and his findings of fact relating to it which are challenged on this appeal.

4 The grounds of appeal from the Master's decision are as follows:

"1 The learned Master erred in law and in fact when he concluded that the date of discoverability in section 38A of the Limitation Act 1974 ('date of discoverability') that personal injury had occurred and was attributable to the conduct of the defendant was earlier than 23 November 1998.

2 The learned Master erred in law in determining that the date of discoverability is assessed by reference to the appellant's capacity to discover facts and that characteristics which relate to her inclination to discover facts should be disregarded.

3 The learned Master erred in law in determining that the Limitation Act 1974 (Tas) differs from the Limitation Act 1969 (NSW) in that section 60 I (1) (b) of the latter Act relates only to whether a discretion to extend time exists and not to how it is exercised.

4 The learned Master erred in law in finding that the date of discoverability should not be assessed by reference to what a person with the actual qualities of the appellant should have done in the circumstances.

5 The learned Master erred in law and in fact in finding that:-

(a) a disposition to accept professional advice at face value was an inclination of the appellant and not a characteristic relevant to her capacity to discover facts;

(b) the appellant's conduct with respect to the acceptance of professional advice was due to an inclination of the appellant which was to be disregarded."

"38A (1) A person who has a cause of action which accrued before the commencement day may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing on the date of discoverability.

(2) A judge may extend the period of limitation specified in subsection (1) having regard to-

(b) the matters mentioned in section 5A(5)(a), (b) and (c ).

(3) A person may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing on the commencement day if that person-

(a) suffers from an injury or disease the date of discoverability of which occurred 6 or more years after the cause of action accrued; and

(b) has a cause of action which accrued before the commencement day; and

(c ) proposes to rely on a date of discoverability which occurred before the commencement day.

(4) The judge may extend the period of limitation referred to in subsection (3) having regard to the matters set out in subsection (2)."

6 The definitions of the terms "commencement day" and "date of discoverability" are:

"'commencement day' means the day on which the Limitation Amendment Act 2004 commences;

'date of discoverability', in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death-

(a) had occurred; and

(b) was attributable to the conduct of the defendant; and

(c ) in the case of personal injury, was sufficiently significant to warrant bringing proceedings:"

"5 (1) An action for damages for negligence, nuisance, or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of, or include, damages in respect of personal injuries to any person shall not, subject to this section, be brought after the expiration of a period of 3 years from the date on which the cause of action accrued.

(1A) This section applies only to an action where the cause of action accrued before the commencement day.

(2) An action for damages under the Fatal Accidents Act 1934 in respect of the death of a person shall be deemed to be such an action as is referred to in subsection (1), the cause of which accrued on the death of that person.

(3) Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued.

(4) The powers conferred on a judge by subsection (3) may be exercised notwithstanding that the period limited by subsection (1) for the bringing of the action may have expired.

(5) For the purposes of this section personal injuries include any disease and any impairment of a person's physical or mental condition.

5A (1) This section applies only to an action where the cause of action accrues on or after the commencement day.

(2) For the purpose of this section, 'personal injury' includes any disease and any impairment of a person's physical or mental condition.

(3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:

(a) 3 years commencing on the date of discoverability;

(b) 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action.

(4) An action for damages under the Fatal Accidents Act 1934 in respect of the death of a person is taken to be an action referred to in subsection (3).

(5) A judge may extend the period of limitation referred to in subsection (3)(b) to the expiry of 3 years commencing on the date of discoverability having regard to the justice of the case and, in particular to -

(a) whether the passage of time has prejudiced a fair trial of the action; and

(b) the nature and extent of the plaintiff's loss; and

(6) The periods of limitation specified in subsection (3)(a) and (b) apply to the personal representative of a deceased person commencing at the earliest of the following times:

(a) the date when the deceased person knew that personal injury -

(ii) was attributable to the conduct of the defendant; and

(iii) was sufficiently significant to warrant bringing proceedings;

(b) the date when the personal representative was appointed, if he or she knew or ought to have known the date of discoverability at that time;

(c) the date when the personal representative first knew or ought to have known the date of discoverability, if he or she acquired that knowledge or ought to have acquired that knowledge after being appointed to that position."

8 In his reasons (Kaye v Hoffman [2007] TASSC 31), the Master considered different aspects of the concept of "date of discoverability". He dealt firstly with the meaning of the phrase "the conduct of the defendant". He determined at par25 that:

"... the reference to 'conduct of the defendant' in the definition of 'date of discoverability' is a reference to the alleged conduct which is the subject of the claim or prospective claim and not merely a reference to the bare act or omission from which the injury resulted. In other words, it is a reference to the alleged wrongful conduct."

That finding was not the subject of any challenge by the appellant.

9 The Master then addressed a second issue regarding the interpretation of "date of discoverability". The heading of this section of his reasons reads:

"The definition of 'date of discoverability' - What are the characteristics of the plaintiff which may be taken into account in considering what the plaintiff 'ought to have known'?"

His opening remarks noted that the definition of "date of discoverability" had imported the concept of constructive knowledge. He then canvassed some authorities to which he had been referred, and said at pars27 - 32:

"27 As to the test to be applied counsel for the defendant referred to a decision of the New South Wales Court of Appeal in Commonwealth of Australia v Smith (2005) NSWCA 478. Under consideration was the New South Wales Limitation Act 1969, s60I(1) which is set out in the passage from Commonwealth v McLean (supra) quoted earlier in these reasons.

'The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person 'ought' to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances.'

29 He noted that in the United Kingdom in the context of constructive knowledge for the purpose of limitation legislation the actual qualities of the person concerned were only relevant if they went to the capacity to discover facts. Characteristics which went only to the inclination to discover facts were to be disregarded. The United Kingdom position was against what had earlier been decided by the New South Wales Court of Appeal in Telstra Corporation v Rea [2002] NSWCA 49. Santow JA said at par110:

'In the United Kingdom, under differing legislation, the limitation periods are extendable by reference to a test which, while likewise not wholly objective, is less accommodating to plaintiffs than that applied in New South Wales. According to Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76, a personal characteristic such as shyness inhibiting a person seeking knowledge about his injury would not preclude constructive knowledge of what that advice would have revealed, had it been sought. By contrast, Telstra Corporation v Rea (supra) held that in New South Wales, personal characteristics of such a kind are relevant. The plaintiff, to avoid constructive knowledge, must have taken all such action as it was reasonable for him to take, taking into account not only any mental impairment but also his personal characteristics and circumstances." [original emphasis]

30 However, Basten JA in his minority judgment, adopted the approach taken in the United Kingdom. He concluded that a failure to acquire knowledge must not merely be explained, it must be justified. He said at pars186 and 187:

'In Adams, Baroness Hale of Richmond cited a conclusion reached by the Law Commission (UK) in its consultation paper 'Limitations of Action' (LCCP 151, 1998) at par 12.54:

"As it is fairer to plaintiffs and would not create significant extra uncertainty, we also consider that the test for constructive knowledge should contain a large subjective element: what ought the plaintiff, in his circumstances and with his abilities, to have known had he acted reasonably? The question should not be what a reasonable person would have discovered, but what the plaintiff himself would have discovered if he had acted reasonably. The personal characteristics of the plaintiff, such as his or her level of education and intelligence, and the plaintiff's resources, would therefore be relevant to the question whether the plaintiff acted reasonably ... A number of the employment-related personal injuries cases have involved plaintiffs in unskilled manual jobs having little education. ... Conversely, in cases where the plaintiff has some degree of expert knowledge which should have caused him to appreciate facts at an earlier stage than would have been appropriate for the average person, that knowledge should be taken into account to advance the date of discoverability."

After considering differences of approach taken by English courts in relation to the subjective circumstances of applicants, Baroness Hale concluded at [88]:

"I wonder, therefore, how much difference there is in practice between the two approaches. We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection."

In my view this approach sits comfortably with the language of s60I(1)(b). The circumstances and characteristics of an applicant may well explain why he or she did not ask a question or seek advice at a particular time. The term 'ought' requires more than explanation - it requires justification. That additional element requires a standard, not a mere description of the characteristics and circumstances of the individual which led to the failure to inquire."

31 Basten JA applying the United Kingdom approach unlike Santow JA (with whom Handley JA agreed) would have allowed the appeal and set aside the orders made by the primary judge. He said at pars199 and 200:

'This evidence appears to identify a personal characteristic of the Applicant which explains, at least in part, why he may not have sought expert diagnosis until persuaded by his solicitor in mid-1999. However, the evidence does not demonstrate that this was an element of his mental impairment. Had it done so, that would have been a material consideration.

In my view the Applicant has not established that the application was made within three years after the time at which he ought to have become aware of the fact that he had suffered a personal injury of the kind identified in the statement of claim. Accordingly he has not satisfied the Court as to the matters identified in s 60I(1)(b).'

32 An application for special leave to appeal was brought in the High Court. It was refused on the ground that "any appeal would enjoy insufficient prospects of success to warrant a grant of special leave". Commonwealth of Australia v Smith (2006) HCA Trans 242 (19 May 2006)."

10 The Master then said at pars33 - 35 before proceeding to deal with the facts:

"33 As pointed out earlier the concept of constructive knowledge in the New South Wales Limitation Act 1969, s60I(1)(b) operates only in the context of provisions conferring on the Court a discretion to extend time. It is concerned with whether or not a discretion exists and not with how it is to be exercised. Where a plaintiff has means of knowledge at his or her disposal, but nonetheless is able to satisfy s60I(1)(b) the fact that knowledge could have been acquired remains an important consideration in the assessment of how the discretion is to be exercised. In CRA Ltd v Martignago (1996) 39 NSWLR 13, Clarke JA said at 19:

'If the plaintiff establishes that he or she was unaware of the relevant fact and satisfies the condition in par(b) ... he or she will be entitled to ask the court to exercise its discretion in favour of the making of an order. That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the master held was the situation in this case, would not be relevant. In my opinion it would be a highly relevant matter for consideration in the exercise of discretion.'

34 The context in which constructive knowledge is to be considered in the Tasmanian Act is significantly different to that considered in the New South Wales cases. In Tasmania 'date of discoverability' is not merely relevant for the purpose of ascertaining whether or not a discretion to extend time exists. The date of discoverability is the date upon which the limitation clock is set running under the Act, s5A(3). It is in this broader context that the question of constructive knowledge was considered in the United Kingdom by the House of Lords in Adams (supra). It is because of this I prefer the United Kingdom test.

35 Accordingly, on the question of constructive knowledge I consider the proper approach to be as follows:

(a) Firstly, consideration needs to be given to when objectively it would be reasonable to expect medical or other advice to have been sought relating to the date of discoverability feature under consideration.

(b) Secondly, whether, if at that time, advice had been sought it would have resulted in the plaintiff acquiring the relevant knowledge.

(c) Thirdly, if a plaintiff has characteristics which affect his or her capacity to acquire relevant knowledge the 'date of discoverability' will be the date upon which it might reasonably have been expected that the relevant knowledge would have been acquired having regard to these characteristics.

(d) Fourthly, characteristics of a plaintiff which only go to his or her inclination to acquire relevant knowledge will not be taken into account."

11 Having dealt with the facts, the Master said at pars133 - 135:

"133 I said earlier in these reasons that in considering the question of constructive knowledge I would only have regard to features particular to the plaintiff which went to capacity to acquire the relevant knowledge and that I would not have regard to features which went merely to inclination. There was a submission by counsel for the plaintiff that although the plaintiff:

'... is a person of normal intellect her disposition is to accept at face value advice given to her by professionals. This is evident from her conduct with respect to her solicitor. She willingly accepted assurances from him and remained happy with his services even after she was aware that he had not detected a limitation problem with her case until it was too late. she accepted advice given to her by Dr Murray-Arthur apparently at the least endorsed by the defendant without her examining the plaintiff or even speaking to her to undergo treatment with a termination of pregnancy. She appears not to have questioned Dr Murray-Arthur even though she says she did not want to terminate the pregnancy. Further she assumed that her doctors would inform her if there was any reason to adopt a different course of action after test results were available to them.'

134 This is a characteristic which goes to inclination and not capacity and so is a characteristic to be disregarded. But even if account was taken of it, it would not have altered my conclusion. The enquiries which the plaintiff failed to make were not limited to enquiries challenging advice which she had been given. She did not ask whether the tumour was cancerous or not. She did not ask whether it was getting bigger or smaller following MRIs. There is no evidence of her asking whether the alleged diagnosis had impact on her life expectancy. There is no evidence of her asking whether surgery was a treatment option. Her failure to make enquiries which may have led to an earlier discovery that her MRI results did not support a diagnosis of a tumour and that she had never had a tumour is neither explained nor justified by a disposition to accept professional advice at face value.

135 The plaintiff has not discharged her onus of showing that the date of discoverability was within three years of the issue of the writ. I am not persuaded that a person in her position should not be expected to have found out much earlier that her MRIs did not support a diagnosis of a tumour and that there had never been a tumour."

12 In a summary in the penultimate paragraph of his reasons, the Master set out a number of dot points. The second and third last of those read:

"● The plaintiff failed to show that she did not have constructive knowledge of the alleged wrongful conduct of the defendant earlier than three years before the date of the issue of the writ. In other words she failed to show that a person in her position would not have been expected to have found out earlier than she did that her test results did not support a diagnosis of a tumour and that there had never been a tumour.

• Having failed to show that the date of discoverability was within three years of the date upon which the writ was issued the plaintiff failed to establish that the Court has jurisdiction to grant her application."

13 The submissions of counsel for the appellant were lengthy and detailed. They were, almost in their entirety, an examination of the legislative schemes relating to limitation periods and extensions of them in New South Wales and the United Kingdom, a comparison of those schemes with that in Tasmania, and an examination of a number of cases, both to which the Master had referred and others. There was no attempt to specifically link the submissions to the actual grounds of appeal. As to those grounds, grounds 2 and 4 appear to be the heart of the appeal in that they challenge the correctness of the test applied by the Master in determining the constructive knowledge of the appellant for the purpose of determining her date of discoverability. Ground 3 raised an issue incidental to how the Master reached his conclusion as to what was the correct test. Ground 5 was an extension of ground 2.

14 As to ground 1, the appellant had the onus of satisfying the Master her date of discoverability was within three years of the date her writ was issued. That, in effect, required her to prove she did not have knowledge of certain things prior to that period. The Master found, as a matter of fact, based on the evidence he heard and applying the test he considered correct, that the appellant did have that knowledge prior to the period. As a consequence, he determined she had not discharged the onus upon her.

15 As to what the test to be applied should be is a matter which does not appear to have been the subject of any previous argument in this State. Counsel for the respondent submitted that there was indeed no binding authority at all on the subject, but there was persuasive authority arising from a consideration of other State and United Kingdom legislation. Counsel for the appellant submitted that, in the absence of binding authority, decisions of the courts of appeal of other States should not be ignored without good reason.

16 The starting point of the debate must be the legislation. The application was made pursuant to the Act, s38A. Section 38A provides for two different types of applications. This was a case arising under subs (1) and (2). Subsection (1) limits who may make an application to a person with a cause of action which accrued prior to the commencement day. There was no argument that the appellant's cause of action was one of those. The second part of subs(1) limits the period for which an extension might be granted to three years commencing on "the date of discoverability". There is no discretion to extend that period. In the appellant's case, her writ was filed on 23 November 2001. Therefore, unless her date of discoverability was less than three years before that, the Court had no power to grant an extension to the date she filed her writ. Subsection (2) would only become relevant if the appellant brought herself within subsection (1).

17 The "date of discoverability" for an applicant, as defined in the Act, makes reference to two types of knowledge, that is actual knowledge and what has been described as "constructive knowledge". That knowledge was that personal injury had occurred, it was attributable to the conduct of the respondent, and it was sufficiently significant to warrant bringing proceedings. The onus on the appellant was to satisfy the Master that her "date of discoverability" or acquisition of that knowledge, either actually or constructively, occurred not more than three years prior to the issue of her writ. The argument in this case was about not so much when the appellant was actually given the relevant knowledge by her doctor but when she ought to have obtained it. She was in effect attempting to satisfy the Master that she could not have had the knowledge prior to that three year period. For the purpose of her application, the appellant asserted her "date of discoverability" was 26 November 1998.

18 The Master found the appellant's date of discoverability to have been earlier than 23 November 1998. He concluded that that finding determined the application, and dismissed it. Had he concluded the date to have been as asserted by the appellant, then the Act, s38A(2), would have become relevant. The Master would have had to exercise a discretion as to whether or not he extended the time by reference to the factors there set out. The Master did actually conduct this exercise although he did not need to do so. At issue in this appeal are the Master's findings of fact as to the appellant's date of discoverability and his interpretation of the law to be applied in determining that date.

19 Counsel for the appellant took the Court through a range of provisions in the Limitation Act 1969 (NSW) ("the NSW Act"), most particularly ss18A, 50C and D, 60F - J and 62A, and compared the scheme they encompassed with that in the Act. The purpose of this exercise was to demonstrate that, indeed, the New South Wales and Tasmanian legislation were more alike than the Tasmanian legislation, and that in the United Kingdom, and that, for that reason, the approach of the New South Wales courts to the test for "constructive knowledge" was the more appropriate one.

20 The equivalent to our s38A in the NSW Act is to be found in subdiv3 of Div3 of Pt3. That subdivision was inserted in the Act in 1990 and contains s60F - J. The heading of Pt3 is "Postponement of the bar". The NSW Act was amended with effect December 2002. The headings of the divisions and subdivisions in Pt3 were altered and a new Div4 was inserted. The heading of Div3 became "Personal injury cases arising before 2002 amendments" and of subdiv3, "Discretionary extension for latent injury etc". The heading of the new Div4 was "Personal injury cases arising after 2002 amendments". Division 4 performed a similar function to the Act, s5A.

21 The NSW Act, ss60F, 60G(2) and 60I(1) provide as follows:

"60F The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date."

"60G (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

"60I (1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)."

22 The NSW Act, s60G(2), as does the Act, s38A(2), gives the Court the discretion to grant an extension of time. It sets out the test to apply to the exercise of that discretion, namely "if it decides that it is just and reasonable to do so ...". It is a differently worded test to that in s38A(2), but neither directly imports any concept of constructive knowledge into the exercise of the discretion. Section 60I, however, precludes the exercise of the discretion at all unless certain criteria are met. Section 60I(1)(b) imports the concept of constructive knowledge for the purpose of that section. The Act, s38A(1), although by a more circuitous route, that is by reference to a separate definition, in effect, does the same.

23 The concept of "date of discoverability" is relevant in the Act in two areas. It is relevant to an application to extend an existing limitation period for a cause of action which accrued before certain amendments (by reference to s38A) and it is also relevant to the determination of what the limitation period actually is in respect of causes of action accruing after those amendments (by reference to s5A). In the NSW Act, the concept of "constructive knowledge" arises for the purpose of an application to extend an existing limitation period for a cause of action which accrued before the amendments to that Act in 2002 (by reference to s60I(1)(b)) and it is also relevant to the determination of what the limitation period actually is in relation to a cause of action which accrued after those amendments (by reference to s50C). The wording of the NSW Act is not the same as that in the Act. However, the distinction drawn by the Master in pars33 and 34 of his reasons does not appear to exist.

24 As to the Limitation Act 1980 (UK), it uses the term "date of knowledge". The relevant section is s14, in particular s14(3), which was the section canvassed in the case of Adams (supra). That provides:

"14 (3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

The United Kingdom legislation not only contains more direction as to how the concept is to be determined, but also contains the word "reasonable" in a number of places, importing the potential for a more objective view. It is not difficult to see, by reference to the wording, how the majority reached the conclusion that it did in Adams.

25 I would conclude that the legislative scheme in Tasmania is more akin to that in New South Wales than to that in the United Kingdom.

26 The Master, because he concluded that the scheme in the Act was closer to that in the United Kingdom than in New South Wales, said he preferred what he described as the "United Kingdom" test. That test appears to have been taken largely from the views of Baroness Hale of Richmond in Adams (supra), which were set out by Basten JA in Smith (supra) and adopted by him. Counsel for the appellant says the views of both Baroness Hale and Basten JA were minority views and constitute neither the test in the United Kingdom nor that in New South Wales.

27 In Telstra Corporation Limited v Rea [2002] NSWCA 49, Foster AJA, with whom Mason P agreed, commented upon the construction and operation of the NSW Act, s60I(1)(b). He said at pars29 - 37:

"29 In Ford Excavations v Do Carmo [1981] 2 NSWLR 253, a different section of the Act was the subject of construction by the Court of Appeal; namely, s58(2) which empowered a Court to extend an applicable limitation period where 'any of the material facts of a decisive character relating the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period'. In his judgment Hutley JA stated (at 267):

'where a solicitor acting for a client obtains knowledge or has knowledge as part of his general fitness to advise the client of the material facts relating to his client's cause of action, those facts are, in my opinion, part of the actual knowledge of the client.'

30 This statement was not concurred in, when the matter was taken to the High Court in Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1983-1984) 154 CLR 234. Wilson J, in the passage (at 249) referred to by Einstein J, reserved his opinion in relation to the statement, as there might be 'a strong argument that the plain words of the paragraph exclude the operation of any general principle that might otherwise apply.'

31 Dawson J, in his judgment, (at 259), said in relation to the appellant's receipt of advice from a solicitor:

'In fact he sought advice and, it would appear, did not receive the advice which he ought to be have given. However, s58(2).....makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense.'

32 I take these passages as indicating that, in relation to the section under consideration, the knowledge of an advising solicitor was not, in their Honours' view, capable of being imputed, without more, to the applicant. If the solicitor had the relevant knowledge but failed to impart it to the plaintiff, it did not become the knowledge of the plaintiff.

33 I consider that one arrives at the same result, by parity of reasoning, in relation to s60I(1)(a)(iii) and s60I(1)(b). As indicated in his Honour's judgment, it has been held in a number of cases that s60I(a) is concerned with the plaintiff's actual and personal knowledge, or lack of it, of the matters referred to in the section. It is not concerned with the plaintiff's imputed knowledge or, indeed, his or her constructive knowledge of those matters. In arriving at this construction, the Courts have found assistance in the fact that a clear distinction is drawn between the wording of s60I(1)(a) and s60I(1)(b), where the constructive knowledge of the plaintiff is plainly referred to. That the latter sub-section has been called in aid of the construction of the former, is clearly exemplified in the judgment of Clarke JA in CRA Ltd v Martignago (1996) 39 NSWLR 13 (at 18-19) where his Honour said, in a passage cited by Einstein J:

'In s60I(1)(a) there is no mention of the concept of constructive knowledge nor do any of the subparagraphs of s60I(1)(a) contain words such as "ought to have become aware". In contradistinction s60I(1)(b) expresses the condition in terms which show that it will not be satisfied if the plaintiff became aware of certain facts within the stated time or if the plaintiff ought to have become aware of those facts within that time. Where the alternative tests are found in one subsection of s60I but not in the other there is a logical difficulty in giving the expression "unaware" in subs(1)(a) the wider meaning embracing a form of constructive knowledge.'

34 A statement to similar effect was made by Priestley JA in Spadotto & Co Pty Ltd (in liquidation) v Raber, Court of Appeal, (unreported, 27 October 1995) where his Honour said, in relation to these paragraphs:

'Another matter which seems to me to be important in understanding what para(a) is contemplating so far as a plaintiff's knowledge and awareness are concerned is that para(b), when it speaks of the time when "the plaintiff became aware (or ought to have become aware)" of the three matters listed in para(a) seems to be drawing a clear distinction between actual knowledge of the plaintiff and knowledge of which the plaintiff (as a person) ought to have become aware.'

35 Reference may also be made to the judgment of the High Court in Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 in the passage cited by Einstein J.

36 In my opinion, in the same way that subs60I(b) has been called in aid of the construction of s60I(1)(a), the earlier sub-section can assist in the construction of the latter. It is clear that s60F, s60G and s60I are aimed, in general, at alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. It is the actual position of the plaintiff having regard to his personal state of knowledge which is the subject of the first sub-section of s60I(1). Although the second sub-section cannot, in my view, relate to imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. However, in my view, that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. I consider, with respect, that this is what Priestley JA was referring to in the passage cited above from Spadotto where his Honour referred to 'knowledge of which the plaintiff (as a person) ought to have become aware.' In this regard, I consider that the remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC 518 at 530, cited by Dawson J in Do Carmo are particularly apt, his Lordship saying:

'In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.'

37 In the result, I am of the view that the words 'or ought to have become aware' in subs60I(1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed."

28 Santow JA in Smith (supra) quoted part of the above statements in par103 of his reasons. He then went on to say at par109:

"109 The basal question in relation to Mr Smith was therefore what someone so circumstanced as he was, ought to have been aware of in relation to each of the three matters in s60I(1)(a). This must take into account his mental impairment, the instructions he received from his superiors and any other circumstances bearing upon his capacity to appreciate that he needed to consult a psychiatrist to find out if he was suffering from 'any impairment of [his] mental condition' and if so, its nature and extent."

followed by par110 which the Master quoted in his reasons (see par9 of these reasons).

29 In par 110, Santow JA appeared to be suggesting that the court in Adams had accepted that a personal characteristic such as shyness inhibiting a person seeking knowledge about his injury would not have precluded constructive knowledge of what that advice would have revealed had it been sought. It is apparent from a reading of the judgments in Adams, that the case cannot be said to be authority for that proposition. There are, in fact, only relatively brief references to the concept. Lord Scott of Foscote said at 94:

"The reference in section 14(3) to 'knowledge which he might reasonably have been expected to acquire' should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, ie an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test."

Lord Walker of Gestingthorpe said at 95:

"Baroness Hale's distinction between personal characteristics which affect a person's ability to acquire information and those which affect a person's reaction to the information once acquired is a distinction which will be useful in some cases. But characteristics such as shyness, embarrassment and lack of assertiveness)which feature in several of the reported cases) may be relevant both to the acquisition of information and to acting (or failing to act) on it."

30 There is no reference to the idea in the judgment of Lord Hoffman, nor does it feature in the headnote of the report of the case. There is also no reference in the judgment of Baroness Hale. However, what Baroness Hale did conclude at 100 was:

"91 In my view, all the cases to which we have been referred are explicable on the basis that the law expects people to make such inquiries or seek such professional advice as they reasonably can when they have good reason to do so. Their motive for not doing so will generally be irrelevant. But I would not want to rule out that their personal characteristics may be relevant to what knowledge can be imputed to them under section 14(3). There is a distinction between those personal characteristics which affect the ability to acquire information and those which affect one's reaction to what one does know. A blind man cannot be expected to observe things around him, but he may sometimes be expected to ask questions. It will all depend upon the circumstances in which he finds himself. As McGee and Scanlan have suggested, in an attempt to reconcile the authorities, a factor or attribute which is connected with the ability of a claimant to discover facts which are relevant to an action should be taken into account; but a factor in his make-up which has no discernible effect upon his ability to discover relevant facts should be disregarded: see 'Constructive knowledge within the Limitation Act' (2003) 22 Civil Justice Quarterly 248, at 260. They go on to suggest that qualifications, training and experience may have such an effect, while intelligence may not. It will all depend upon the facts of the case."

31 The matter of Commonwealth of Australia v Shaw [2006] NSWCA 209 was decided a few months after Smith, but also arose, as did Smith, out of the Voyager disaster. In that case the judgment of the court was given by Basten JA, who had been in the minority in Smith. Basten JA said at pars31 and 32, and then went on to say at par73:

"31 It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed in relation to this issue) adopted a concept of 'constructive knowledge', as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530:

'In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out.'

This approach was quoted with approval by Santow JA (Handley JA agreeing) in Commonwealth of Australia v Smith [2005] NSWCA 478 at [103]; cf [182]-[187].

32 Use of the label 'constructive knowledge' must be undertaken with care, so as not to fall into patterns of thought relating to a 'reasonable person' test. Further, there is a risk that the label may distract attention from the purpose of the judgment being formed. Indeed, even to ask what steps it was 'reasonable' for the plaintiff to take provides little guidance as to the criteria by which the judgment is to be made. Those criteria will vary, depending on the particular facet of knowledge, identified in par (a), of which it is said that the plaintiff ought to have become aware, at a date more than three years prior to the commencement of the proceedings. Only when the relevant fact has been identified, is it possible to consider what steps might have been taken in order to acquire knowledge of that fact. Once the possible steps have been identified, consideration may need to be given as to the likelihood that such steps, if taken, would have resulted in the plaintiff acquiring knowledge of the particular fact. Finally, it may be necessary to distinguish the purpose of the inquiry from the purpose for which the step might have been taken. In relation to a step involving a consultation with a medical practitioner, the purpose of the consultation would usually be to obtain appropriate medical treatment. Whether such treatment was obtained or not may have legal consequences, for example in relation to mitigation of loss. However, for present purposes the legal consequence will be acquisition of relevant knowledge, being a result somewhat removed from the usual purpose of obtaining medical treatment.

73 There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne/Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result, but that, where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome. No attempt was made in the present proceedings to approach the matter in that way. Accordingly, the trial judge not having addressed the issues under par (b), it is necessary to reach a judgment on the material presented."

32 In Shaw, Basten JA did not restate his minority view from Smith. However, the court in Shaw produced a different result from that in Smith. The issue was dealt with again in Irving v The Commonwealth of Australia [2006] NSWSC 958, another Voyager disaster case, decided in September 2006. In that case, counsel attempted to persuade the learned trial judge that one or other of Smith and Shaw had been wrongly decided. Studdert J concluded neither was, and that the different outcomes could be reconciled on the facts. Studdert J quoted both Santow JA in Smith and Basten JA in Shaw and determined the principles each set out were applicable to an interpretation of the NSW Act, s60I(1)(b).

33 I can find no good reason to ignore the principles adopted by the New South Wales courts in their approach to the interpretation of "constructive knowledge" for the purpose of determining the "date of discoverability" of an applicant. However what the New South Wales cases highlight is that many turn on their own particular facts and it is difficult to set out a precise "one size fits all" test.

34 The Master set out a chronology of relevant facts in pars41 - 104 of his reasons and I do not pause to repeat the material contained in those paragraphs. There was no suggestion the Master had misrepresented any facts or evidence in that summary although counsel for the appellant argued that the Master had not considered certain evidence and that that evidence was contrary to his findings.

The Master's reasoning in respect of constructive knowledge and counsel's submissions

35 The Master's reasoning in relation to "constructive knowledge" commences at par113 of his reasons.

36 At par123, the Master set out what the appellant might have done about her diagnosis. He then concluded at par124 that:

"I am not persuaded that it would not be the normal expectation that a person in the plaintiff's position believing that she had a tumour would not have made detailed enquiries about the tumour between 1994 and speaking with Dr Murray in early 1998."

He has there applied the objective test he foreshadowed at par35. Counsel for the appellant submitted that what the Master was suggesting was that the appellant should have challenged the diagnosis and perhaps sought a second opinion. He said, however, that the appellant had no reason at all to do that because she took the view, which he said was entirely reasonable, that doctors would have told her if anything was different. She had, he said, a disposition to accept professional advice without query, which explained her failure to enquire.

37 At pars128 and 129, the Master went on to say:

"128 There is nothing to suggest that an enquiry by the plaintiff following the August 1994 scan or the April 1996 scan (both of which were undertaken after she last went to see Dr Hoffman in May 1994) would not have led to the same discovery which she made with the aid of Dr Murray in November 1998. Namely, the discovery that her MRI results did not support a diagnosis of a tumour and she had never had a tumour.

129 The plaintiff did not make detailed enquiries about her perceived condition for many years. I have not been persuaded that a person in the plaintiff's position would not be expected to make such enquiries at an early stage. I am not persuaded that such enquiries would not have led to the discovery by the plaintiff that she did not have a tumour and from there to the discovery that her MRI results did not support a diagnosis of a tumour and that she had never had a tumour."

He then turned to the issue of whether the appellant had characteristics such that a person with those characteristics would not be expected to have made earlier detailed enquiries about her condition. He referred to some evidence of Dr Paoletti and concluded at par132:

"Neither Dr Paoletti, nor any other medical practitioner who gave evidence on the hearing of this application has said that the plaintiff's depressive symptoms affected her capacity either to be curious about her medical condition or to make enquiries of her medical advisors or to understand information which she might have been given as a result of enquiries."

38 The appellant may very well have had a disposition to accept the advice of professionals at face value. However, there is a distinction between challenging a diagnosis and asking basic questions about a condition. As the Master said at par134:

"The enquiries which the plaintiff failed to make were not limited to enquiries challenging advice which she had been given. She did not ask whether the tumour was cancerous or not. She did not ask whether it was getting bigger or smaller following MRI's. There is no evidence of her asking whether the alleged diagnosis had impact on her life expectancy. There is no evidence of her asking whether surgery was a treatment option. Her failure to make enquiries which may have led to an earlier discovery that her MRI results did not support a diagnosis of a tumour and that she had never had a tumour is neither explained nor justified by a disposition to accept professional advice at face value."

While the Master has clearly adopted there the words of Basten JA in Shaw (supra), his words highlight the distinction adverted to.

39 The difficulty in the appellant's case is that, apart from the disposition to accept advice at face value, there was no evidence the appellant had any sort of physical, mental, developmental or emotional impairment or other reason which would have precluded her from asking the type of routine questions identified by the Master. She would not thereby have been challenging a diagnosis, but simply obtaining advice about a significant medical condition. She attended for a number of MRIs. Her evidence was they were unpleasant experiences and required her to take a day from her life. Yet never did she apparently show the faintest curiosity about the results of those tests, or indeed, it appears, the tumour itself. It is, with respect, inconceivable that she, as a person diagnosed with a tumour, would not have asked those basic questions, if not in the very early days of the alleged diagnosis, then at least after the continuing MRIs. Had the appellant made those enquiries, as the Master found, she would have been alerted to the fact the MRIs showed no tumour at all. It is apparent from the Master's conclusions, at par136, that that was the view he formed.

40 Counsel for the appellant submitted that, had the Master had regard to certain evidence of Dr Booth, he would not have drawn the conclusion that the appellant would have become aware she had never had a tumour by being told her MRI's were normal. This was because she was given repeat scripts of the medication she had originally been given to deal with the symptoms of the tumour and would have no reason to consider the tumour might not exist. With respect a review of that evidence does not detract from the Master's conclusion. Had the appellant asked Dr Booth whether the medication was doing anything in the sense of reducing or even removing the tumour, a not unreasonable question given the way in which she said the medication was adversely affecting her, the only response from Dr Booth would have to have been, what tumour.

41 The Master, having referred to the consideration of constructive knowledge in Adams (supra), and having said he preferred what he described as the "United Kingdom" test, set out at par35 what he considered to be the proper approach to determining the question of constructive knowledge. That approach actually appears to be a combination of the views of the majority in Adams and the dissenting view of Baroness Hale. The objective test set out in point (a) is that of the majority. Point (c) appears to arise from Baroness Hale. As to point (d), I am unable to determine where indeed this test comes from. I can only assume that it arises from the words of Baroness Hale at 100 where she says:

"But I would not want to rule out that their personal characteristics may be relevant to what knowledge can be imputed to them under section 14(3). There is a distinction between those personal characteristics which affect the ability to acquire information and those which affect one's reaction to what one does know. A blind man cannot be expected to observe things around him, but he may sometimes be expected to ask questions. It will all depend upon the circumstances in which he finds himself."

42 I have concluded that the test to be adopted should be that espoused in the New South Wales courts. The question to be asked in this case was what should a person with the qualities and characteristics of the appellant have done? Counsel for the appellant argued that basically any characteristic of the appellant which contributed to her failure to enquire was relevant to a determination of her date of discoverability, whereas the Master drew the distinction between characteristics of the appellant which went to her capacity to acquire relevant knowledge and those which went merely to her inclination to do so. With respect, I take the view the distinction is an artificial one in any event. Whether a characteristic of the appellant, being a disposition to accept professional advice at face value, is a characteristic relevant to her capacity to acquire knowledge or one which goes to her inclination not to do so, does not assist with the ultimate question, and as the Master found, is unlikely to have altered his ultimate opinion (par134 of his reasons).

43 The difficulty which arises in this case, however, is, irrespective of whether the test espoused by the Master at par35 is right or wrong, the question to be answered is, was his determination that the appellant's date of discoverability occurred earlier than 23 November 1998 wrong?

44 As a consequence of the conclusion in par23 of my reasons, ground 3 should succeed. Ground 4 should succeed as a consequence of the conclusion that the more subjective test adopted by the New South Wales courts is to be preferred.

45 As to grounds 2 and 5, these both relate to the distinction drawn by the Master between characteristics which go to the capacity to discover facts and those which go to an inclination to do so. As to ground 2, as I have said, the distinction seems to arise from some remarks of Baroness Hale. While the distinction has not been enunciated in the New South Wales decisions referred to, it is not wholly inconsistent with the New South Wales approach. I would not be prepared to find in the circumstances that the Master erred as asserted. As to ground 5, this requires a consideration of the difference between an inclination and a characteristic. With respect, the difference is, in my view, artificial and largely irrelevant to the outcome of this appeal because of the ultimate question to be answered and my comments in par41.

46 That leaves ground 1. I have accepted that the test espoused by the Master at par35 may indeed have been the incorrect one. However, this ground appears to, despite the manner in which it is worded, go to the question of whether the Master erred in the ultimate conclusion which he drew, namely that the appellant's date of discoverability was earlier than 23 November 1998. I am not satisfied that he did err. The onus to establish that the date of discoverability was such as to allow the proceedings to continue fell on the appellant. The Master concluded that the actual knowledge relevant in that determination was not acquired until 26 November 1998 and the appellant's case therefore stood or fell on the issue of constructive knowledge. Even had the Master applied the correct test, I am satisfied that the ultimate conclusion was one still open to him on the facts of this case and that the appellant did not discharge the onus upon her. Ground 1 should therefore fail.

47 While on the face of these reasons the appellant has succeeded to some extent, the ultimate conclusion is that the Master's determination that the appellant had not discharged her onus was correct. In all the circumstances the appeal is dismissed.