The English authorities
42 In AME Hospitals, Buss JA expressed the view that actual awareness and knowledge within s 39(3) and (4) means 'awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process': at [200]. In reaching that conclusion, his Honour referred to various English authorities as well as the decision in Baker-Morrison v New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 at [45]-[56] (Basten JA, Ipp and Macfarlan JJA agreeing). The decision in Baker-Morrison was concerned with a limitation provision which turned upon what was known and whether that was sufficient to bring an action. It distinguished the English cases which used the term 'attributable' (but did so in different terms to that stated in s 39 of the Limitation Act).
43 As to these matters, McLure P said at [40]-[41] (Newnes JA agreeing at [265]):
I am not persuaded of the applicability or suitability of the test of awareness (and attributability) applied in the English and other cases to which Buss JA refers (awareness of relevant facts with sufficient confidence reasonably to justify the commencement of proceedings against the proposed defendants in the relevant causes of action). As previously noted, the matters in s 39(3) and (4) do not equate with all the material facts of a cause of action for damages for personal injuries. Moreover, awareness (actual or constructive) of the matters in s 39(4) triggers a further three years in which to commence proceedings.
In my view, a person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts (that is, the physical cause of the injury is attributable to the conduct of an identified person) …
44 In Gill v Ethicon Sàrl (No 5), Katzmann J cited the formulation expressed by Buss JA: at [4820]. However, taking account of the reasons of McLure P (with whom Newnes JA agreed), the relevant inquiry is not to be made through the lens of what may be required to actually commence proceedings.
45 Further, in AME Hospitals, McLure P (Newnes JA agreeing) noted that the matters listed in s 39(3) do not correspond with the material elements for a cause of action: at [21]. Therefore, 'no attention is required to the legal issue of whether there is a duty of care, the factual issue of whether the standard of care has been breached or issues going to the legal aspect of causation or remoteness of damage'. Also, in determining whether an injury is attributable to a person, the question is whether there is a causal connection in fact between the injury and the conduct of that person: at [33]. Her Honour noted, but did not decide, whether conduct may be attributable to a person even when there is a non-causal connection. However, for reasons I have already given, conduct may be attributable to a person where that person had responsibility for the relevant circumstances even though the acts or omissions of that person were not the cause of the injury.
46 Therefore, the majority in AME Hospitals approached the question of attribution on the basis that it was not the legal elements of the claim that governed the inquiry. Rather, the issue posed by the use of the term 'attributable' in s 39 concerned when the prospective claimant was aware (or should have been aware) of a connection in fact. It did not matter how the claim ultimately came to be expressed legally. The question was when the prospective claimant reached a state of actual or presumed awareness that their known personal injury was attributable to some person. A person may reach that state without being aware of the particular aspects of the conduct that might assume legal significance in bringing a claim.
47 Buss JA on the other hand found that the relevant conduct of the person for the purposes of determining whether an injury is attributable to the conduct of a person is to be ascertained from the proposed particulars of negligence relied on and the evidence adduced at the hearing of the extension application: at [213]-[214]. The question was when the prospective claimant became aware of that conduct. It appears that in Gill v Ethicon Sàrl (No 5) Katzmann J applied the views of Buss P: at [4822]. However, the distinction did not loom large in the circumstances of that case.
48 Katzmann J also referred to the High Court decision in Dedousis v Water Board [1994] HCA 57; (1994) 181 CLR 171 where the Court was concerned with a provision which, like s 39 of the Limitation Act, described matters of which the prospective claimant needed to be aware before there was the commencement of a three year period in which there was a discretion to extend the time for commencement of a claim of personal injury. One of the matters of which the prospective claimant needed to be aware was the connection between the personal injury and the act or omission of the defendant. In that context, the High Court reasoned that the provision was concerned with ignorance of the existence of acts and omissions rather than legal conclusions, but the act or omission was that said to provide the basis for the claim: at 181-182.
49 Under s 39, the three year period within which there is a discretion to extend time does not start to run until the point is reached where a person, acting reasonably as to the inquiries they make, is aware or ought reasonably to have become aware (a) of the physical cause of their injury; (b) that it was attributable to a person; and (c) the identity of that person. The statutory formulation is not expressed by reference to the facts that must be known in order to commence a claim. Rather, it is directed to describing the state of awareness of a person (who will likely not be a lawyer) that, if it exists, means that it is fair and just to allow a discretion for the limitation period to be extended.
50 It appears that the provision considered in Dedousis was materially different to s 39. Its operation did not depend upon the state of awareness of the prospective claimant as to whether an injury was attributable to a particular person. Rather, it operated by reference to whether the prospective claimant was aware of the connection between the injury and an act or omission of the person against whom the claim was to be made. A person may be aware of facts that would lead that person (or a reasonable person in that position) to conclude that the cause of an injury was attributable to some person without knowing each of the facts that might ultimately be alleged as the legal foundation for a claim in negligence. A person who is aware that their injury is attributable to a person (and of the other matters stated in s 39) may be expected to take steps to attribute legal responsibility for their injury even though they do not yet know all of the facts that may come to be marshalled in support of their claim when articulated by a lawyer. Section 39 operates by reference to the state of awareness of whether the physical cause of an injury was attributable to a person (and other matters) not by reference to awareness of facts ultimately pleaded. Therefore, I consider that I am bound to apply the approach of the majority in AME Hospitals.