"... when the plaintiff knew or ought to have known that personal injury or death -

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

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

1. It was accepted by both parties, both at trial and on appeal, that the respondent knew that personal injury had occurred and was attributable to the conduct of the appellant on the date that he suffered injury, 8 April 2006. The matter in issue was whether he knew or ought to have known that the personal injury was sufficiently significant to warrant bringing proceedings. Again, it is accepted by both parties that the burden of proving this fact falls on the appellant. Hence, the learned trial judge's conclusion that he was not "affirmatively satisfied" that the respondent knew or ought to have known that the injury was sufficiently significant to warrant bringing proceedings before 21 May 2006, was sufficient to dispose of that issue in favour of the respondent.
2. The trial judge's summary of the evidence relevant to this question, and his reasoning for this conclusion, are set out in full in the reasons for judgment of Estcourt J, which I have had the benefit of reading. I will not repeat them in these reasons.

"1 The learned trial Judge erred at [28] of his reasons for judgment in failing to find that the plaintiff instructed Mr Barclay to write to the MAIB advising that he had 'instructions to make a claim for damages in Common Law'. On all of the evidence that finding was mandated.

1. The learned trial Judge erred at [28] of his reasons for judgment in finding that an inference remained open that Mr Barclay and the plaintiff were at cross purposes when such an inference was not reasonably open on all the evidence."
2. I will deal with these grounds together, because they both seem to be different aspects of the same complaint. The grounds focus on the factual conclusions stated by his Honour at [28] of his reasons for judgment, and challenge the manner in which his Honour dealt with the factual issue which surrounded the letter written by David Barclay to the MAIB dated 15 May 2006. This letter, of course, was fundamental to the appellant's case that the respondent had actual knowledge of the matter referred to in par (c) as at the date of that letter. Although the appellant's challenge relates specifically to the inference that the trial judge drew and an alternative inference which the appellant claims he ought to have drawn, on the basis of the letter and the evidence surrounding the letter, it is implicit in the appellant's argument that the real complaint is that his Honour did not utilise this evidence to satisfy himself that the respondent had, as at the date of that letter, the requisite knowledge sufficient to satisfy the definition of the date of discoverability.
3. The appellant's case was that the possession of actual knowledge by the respondent prior to 21 May 2006 was a fact which could be inferred from all of the evidence. There were, in reality, two limbs to the appellant's argument in relation to this matter. Firstly, the appellant argued that objectively by 21 May 2006, the respondent had sufficient information available to him to establish actual constructive knowledge that the injury was sufficiently significant to warrant bringing proceedings. He was aware of injury immediately after the accident to a number of parts of his body and his symptoms were continuing and worsening in the period before 21 May 2006. He had been to a general practitioner, was having difficulty working, and had two or three days off work because his symptoms were not settling down. This, says the appellant, is all that he needed to know about his injuries to know that they were significant enough to warrant bringing proceedings. "Proceedings" are not defined and could, according to the appellant's argument, include an action brought in the Magistrates Court for a modest sum of damages. The appellant would also ask, rhetorically, if the date of discoverability was not at the point that the respondent realised that he had been injured in the accident, which was on the date of the accident, then when was it? It is asserted that there was an absence of evidence from the respondent as to when he did actually gain the necessary knowledge, if it had not occurred prior to 21 May 2006, and an inference is therefore available that the knowledge had been gained prior to that date.
4. Secondly, the appellant relied heavily on the letter to the MAIB from Mr Barclay. It was argued that the Court could infer from the letter that the respondent had given instructions to his solicitors in accordance with the contents of the letter, that is, to make a claim for damages for personal injury. It is asserted that this supported the contention that the appellant had acquired the necessary knowledge by that time.
5. Apart from the tender of the letter itself, the appellant did not present any other evidence dealing with the letter or its genesis. The respondent, however, gave evidence in relation to the letter. His evidence was that the letter was written after the respondent consulted Mr Barclay, a solicitor working in the legal firm that employed the respondent, in relation to his injuries. According to the respondent, it was a very brief conversation. He denied that at the time he saw Mr Barclay, he had any intention, or had even considered, the possibility of making the common law claim, that he had discussed with Mr Barclay or been advised by him about the possibility of a common law claim, or that he had given instructions to Mr Barclay to make such a claim. He said that he had gone to see Mr Barclay, at the suggestion of another solicitor in the firm, Mr Shelley, because he was concerned about whether the MAIB would continue to pay his medical expenses, by way of scheduled benefits. In his evidence, he said that when he went to see Mr Barclay, he expressed this specific concern only. His evidence included the following passage:

"Did you make an appointment to see Mr Barclay?......No.

How did you come to see him?......I just went upstairs and poked my head in his office door and asked if he had a moment.

So what happened?......I had a very quick chat to him, said, 'I've been in an accident.' I said, 'These are problems I've got,' I said, 'I'm just a bit worried.' I said, 'The MAIB may not continue to keep paying for the medical expenses.'

Okay. Where did this discussion take place?......In David's office at Page Seager, which - his office was the floor above mine.

How long did you meet with him for?......Approximately ten to fifteen minutes, if was very brief.

What did you tell him about your injuries?......I just described those injuries that I had being the lower back, knees, left wrist, shoulders and neck.

What did you tell him about the progress of those injuries?......Just said I've felt pretty much the same, they were stagnant.

What did you tell him about the treatment you'd undergone?......Said I'd been to the physio and to my GP.

Did you agree with him on any course of action that would be taken by him?.....Yes.

What course of action did you agree to?.....He was to write to the MAIB to seek their attitude as to whether they admitted liability.

What was your understanding of that process, what the purpose of that was?.....My - well to me that meant that the MAIB would keep paying my medical expenses in relation to the accident.

Did Mr Barclay give you any legal advice on the 11th May?.....No.

Was there any discussion about what you might be entitled to arising from the accident?.....Not that I remember, no.

What was your purpose in seeing Mr Barclay?.....Just to basically have my symptoms on the record and to ensure that I'm reimbursed for any out of pockets in regards to medical expenses.

HIS HONOUR: What was causing you concern about whether the Board would continue to pay your medical expenses, had anything happened?

WITNESS: Yes. David Shelley, when he suggested I go and see Mr Barclay he just said, 'Oh you want to make sure you get David to write a letter to the Board because there's various time limits', he said, 'I'm not really up on what time limits are for what', he said, 'but the sooner you notify them the better'.

HIS HONOUR: Just earlier I thought you said you had some concern about whether the Board would continue to pay your medical payments and I was just wondering what had caused you that concern, if anything.

WITNESS: Just - no, no great concern, I just wanted to ensure that they did, because their insurance company to cover.

MR McTAGGART SC (Resuming): At the time you saw Mr Barclay on the 11th May did you - what was your understanding about the nature of your injuries, that is whether you'd get better, whether they'd stay the same, whether they'd get worse?.....Well I actually thought they'd just get better, I didn't think it was going to be anything serious.

At the time you went to see Mr Barclay what was your intention regarding claiming anything arising from the accident?.....My only intention was to receive reimbursement for out of pockets for my medical expenses."

1. The respondent's further evidence was that there was no discussion about a common law claim, or damages, and he did not instruct Mr Barclay that he intended to make a claim for damages.
2. The respondent adduced evidence from Mr Shelley. Mr Shelley denied that he had told the respondent to speak to anybody else at the firm. However, in all other respects, Mr Shelley's evidence was confirmatory of the evidence of the respondent. Mr Shelley said that he had had a conversation with the respondent about his injuries and, in very general terms, had advised him to make sure that he reported ongoing symptoms to the MAIB. This is consistent with the respondent's claim that his concern in seeing Mr Barclay was to record his symptoms and have the MAIB confirm reimbursement of ongoing medical expenses. There is no suggestion in Mr Shelley's evidence that there was any discussion about the potential of a common law claim for damages. Mr Shelley was not cross-examined.
3. This was the extent of the evidence dealing with the letter and the genesis of the statement in the letter that Mr Barclay had instructions to make a claim for common law damages. Neither party called the only other witness who could explain why the letter contained that statement, Mr Barclay himself. The trial judge dealt with the failure to call Mr Barclay as follows:

"In the circumstances, I accept that an inference should be drawn that Mr Barclay's evidence would not help the plaintiff's case. This does not mean that I should infer that it would in fact have been damaging: HML v The Queen [2008] HCA 16; 235 CLR 334 per Heydon J at 438 [303]. Because it is reasonable to expect Mr Barclay would be called, and no explanation has been given for not doing so, and because Mr Barclay could have shed light on what was said, I am entitled to more readily draw an inference unfavourable to the plaintiff. I may draw such an inference, but I am not compelled to do so."

1. This statement, in my view, correctly states and applies the law as to the use that could be made in this case of the respondent's failure to call Mr Barclay. There is no doubt that there was a legitimate expectation that fell upon the respondent to call Mr Barclay. Mr Barclay was his solicitor, and the person directly placed to explain the statement in the letter. It would not be expected that the appellant would have the same expectation, notwithstanding that the respondent, by his evidence, had effectively waived legal professional privilege. The failure of the appellant to call Mr Barclay does not give rise to an inference of the nature described in Jones v Dunkel (1959) 101 CLR 298, because it would not be expected that the appellant would have had the ability to determine what evidence Mr Barclay could give, given that he was the respondent's solicitor and privilege would have been applicable until waived.
2. However, the inference that was available to be drawn against the respondent as a result of his failure to call Mr Barclay, was the one stated by the learned trial judge i.e. that Mr Barclay's evidence would not assist the respondent's case. The learned trial judge was not entitled to use the failure to call Mr Barclay as a basis for inferring facts which were unfavourable to the respondent's case. See Brandi v Mingot (1976) 12 ALR 551 at 559 and Kuhl v Zurich Financial Services [2011] HCA 11, 243 CLR 361 at [384]. In HML v The Queen [2008] HCA 16, 235 CLR 334, Heydon J said at [303]:

"In civil cases the unexplained failure of a party to give evidence, call witnesses or tender material is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: the only consequence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285."

1. These cases also support the related proposition that the failure to call evidence cannot be used to fill gaps in evidence. It can, however, enable a court to more confidently draw an inference from evidence called by that party's opponent which is unfavourable to the party who has failed to call the witness: Jones v Dunkel (above) per Kitto J at 308.
2. In this case, the respondent did give direct evidence concerning the question of his conversation with, and instructions to, Mr Barclay. His Honour did express his view that there was "good reason to exercise caution before accepting the plaintiff's evidence". He noted the conflict between Mr Shelley's evidence and the respondent's evidence, which I have mentioned previously, but noted also that, on either version, there was no mention made of damages or the institution of common law proceedings. A review of the transcript of the respondent's examination-in-chief and cross-examination, in respect of this issue, confirms that he consistently maintained his evidence throughout.
3. Having regard to the state of the evidence described above, his Honour's conclusion at [28] that an inference remained open that Mr Barclay and the respondent were at cross-purposes in respect of the purpose of the letter was open, and indeed, justified. In fact, unless the trial judge positively rejected the credibility of the respondent's evidence on this point, it is difficult to see that any other conclusion was reasonably open to him. I do not regard his Honour's statement that there was good reason to exercise caution before accepting the respondent's evidence as tantamount to a rejection of the credibility of his evidence. His Honour's conclusion that Mr Barclay may have been talking about common law damages, but that this was not understood or appreciated by the respondent, was, according to his Honour, drawn from his "overall impression" of the respondent. This was a matter in respect of which the trial judge, having seen and heard the respondent give evidence over an extended period of time, was in an ideal position to assess. This is a classic example of the advantage which the trial judge has in assessing evidence, an advantage which must be given appropriate weight by an appellate court, whilst not shrinking from its obligation to conduct "a real review of the trial": Fox v Percy [2003] HCA 22, 214 CLR 118 at [25]. In Fox, the majority explained the advantage of the trial judge and its proper role in the process of appellate review as follows:
   1. The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
   2. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." [Footnotes omitted.]
4. Further, an inference that the two were at cross-purposes is consistent with an inference that Mr Barclay's evidence would not assist the respondent's case. Irrespective of the evidence which Mr Barclay might give, he would not necessarily be able to give evidence which would inform the respondent's perception of their discussion. His Honour's conclusions are consistent with his correct approach to the failure of the respondent to call Mr Barclay, as described in Jones v Dunkell.
5. In any event, when regard is had to the full extent of his Honour's reasoning contained in [28], it can be seen that his Honour's conclusions in respect of the letter amounted, in essence, to an explanation of the apparent inconsistency between the respondent's evidence and the contents of the letter. They are not matters which appear to be crucial to his Honour's determination of the central issue as to whether it had been established that the respondent, at that time, had actual knowledge of the matters referred to in par (c) of the definition. His Honour's crucial findings in relation to this question are contained in the second part of [28] which I set out below:

"I am not affirmatively satisfied that the fact, and contents, of Mr Barclay's letter sufficiently establish actual knowledge of the plaintiff of the fact referred to in par (c) of the definition. Objectively, Mr Barclay's letter at that time could be seen as premature in a sense. Although the plaintiff was experiencing ongoing symptoms, he had only had a few days off work. No significant bony injury had been diagnosed, and it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss. There is no evidence that the plaintiff was aware of s 27 of the Civil Liability Act, or its application to his situation. Looking objectively at the letter, the 'claim' could only have been a conditional one at that time."

1. Reading his Honour's comments in the context of the whole of his judgment, it would seem clear that he has concluded that irrespective of Mr Barclay's indication that he had instructions to sue for common law damages, and even if it could be inferred from the contents of the letter and other evidence that that was reflective of the respondent's intention at that time, his Honour was not affirmatively satisfied on all of the evidence that the respondent had actual knowledge that his injuries were sufficiently significant to warrant bringing proceedings. His Honour's reference to the claim only being a conditional one would suggest that the fact that the letter indicated that a claim would be brought, did not of itself, establish that the respondent knew that his injuries were of a nature and level of seriousness which would warrant the bringing of proceedings.
2. These conclusions are, in my view, entirely consistent with the interpretation of par (c) as explained by his Honour in his judgment as a member of the Full Court in Allianz Australia Insurance Limited v Mercer [2016] TASFC 2. In reasons which were, on this point, the subject of agreement by the other members of the court, his Honour noted that the focus of the enquiry in respect of the date of discoverability is on the knowledge that the respondent has or ought to have of his injury, and, in particular, whether the injury is sufficiently significant to warrant bringing proceedings. The requisite knowledge does not necessarily include "all the various favourable and adverse contingencies which will affect the ultimate outcome" (see Mercer at [85]), but it is clear that the injured person must have sufficient knowledge of the extent and nature of the injury suffered so as to be in a position to assess that the injury is one which warrants bringing proceedings. The focus on the injured person's knowledge of the nature and extent of the injury is, in my view, entirely consistent with the purpose of the legislation, which is that the limitation period will not commence to run until the injured person has a sufficient understanding of his injury to know that it is one which is significant enough to warrant the commencement of proceedings.
3. It necessarily follows from the wording of the legislation, and his Honour's explanation of its meaning in Mercer, that, for the purpose of determining the date of discoverability, there are two aspects to the requisite consideration in relation to the existence of actual knowledge. Firstly, there is a subjective consideration of the extent of the respondent's knowledge of the injury. Hence, if the aspects of the injury which make it significant enough to warrant the commencement of proceedings are latent or still developing, then unless it can be established that the injured person knows or ought to know of those aspects, time will not commence to run. The second aspect of the consideration is to assess on an objective basis, whether the injury, as it is known or ought to be known by the injured person, is sufficiently significant to warrant bringing proceedings.
4. It is appropriate to consider what is meant by an injury which would be significant enough to warrant bringing proceedings. According to the Macquarie Dictionary a synonym for "warranting" is "justification". Having regard to the purpose of the legislation, it seems to me that the ordinary meaning of the provision is that the injury must be significant enough to justify or make appropriate the bringing of proceedings. Provided the focus of the enquiry is on the injury and its significance to the question of the commencement of proceedings, and not other considerations relevant to the viability of the proceedings, it seems to me that such a definition is consistent with the reasoning of the Full Court in Mercer.
5. It follows from this that the objective consideration must necessarily take into account a statutory threshold, such as that to be found in s 27 of the Civil Liability Act 2002, although its relevance in any particular case will depend upon the circumstances of that case. This much was acknowledged in Mercer [84]. The effect of that provision is to establish, as a matter of law, a disentitlement to damages for non-economic loss, if assessment of those damages will not exceed Amount A. The provision removes the common law right to recover damages in those circumstances. Accordingly, if an injury, as it is known (or ought to be known) by the injured person, is of a nature and level of seriousness which would not permit an assessment of damages in excess of that threshold, and would not entitle that person to an award of damages on any other basis, then, as a matter of simple logic, such an injury is not significant enough to warrant bringing proceedings. In practical effect, the common law cause of action has been removed, and the injured person is in the same practical position as if he were unable to establish any loss at all. This view of the significance of the threshold in s 27 is consistent with his Honour's analysis in Mercer. In particular, at [84]:

"It is the injury which must be known to be sufficiently significant to warrant bringing proceedings, although it is plain from Baker-Morrison and Frizelle v Bauer that in certain circumstances the knowledge referred to in par (c) will involve legal and medical information and evaluation. Whether or not a degree of impairment is required, as is the case under s 138AB, is a good example. Relevant knowledge would include knowledge that the threshold exists and whether the injury has given rise, or might well give rise, to the particular degree."

1. Consideration of the threshold in this way has nothing to do with a decision as to whether proceedings should actually be taken, or even their likely prospect of success. It is simply an acknowledgement that if an injury will not sound in damages sufficient to permit their recovery at law, then that injury is not significant enough to warrant the bringing of proceedings. In this case, the respondent would assert, and his Honour implicitly found in [28], that the injury, as the respondent then understood it, was not significant enough to warrant more than a modest award for damages for non-economic loss for soft tissue injury, with no prospect of an award on any other basis. As the respondent said in evidence, he did not think his injuries would get worse, he thought they would get better, and he had no reason to believe that they were more serious than they appeared to be at that time. As I will discuss in a moment, he did not acquire knowledge of more serious underlying aspects of his injury until some time later than 21 May 2006. It is implicit in his Honour's reasons that it would have been impossible at that time to determine that damages would be recoverable at common law, given the statutory prohibition contained in s 27 of the Civil Liability Act. The purpose of that provision must be to discourage and thereby eradicate claims for damages in the circumstances that were known to the respondent on 21 May 2006. In those circumstances, it would be entirely consistent with the intended operation of s 5A of the Limitation Act that the time limit would not commence to operate, unless and until he knew of the aspects of the injury which made it significant enough to warrant bringing proceedings.
2. These considerations are reflected in his Honour's brief summary contained in [28] of his reasons for concluding that he was not affirmatively satisfied that actual knowledge of the requisite matter had been established. His Honour notes that the respondent had "only had a few days off work. No significant bony injury had been diagnosed, and it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss". His Honour's conclusions about these matters were clearly open on the evidence that was accepted by him. In reviewing those conclusions, it is appropriate to consider his Honour's reasoning in the context of his entire judgment, including his analysis of the respondent's injury and the course of its development, which occurs in considerable detail later in his judgment, for the purposes of assessment of damages. It is reasonable to consider his reference in [28] to his state of satisfaction concerning the date of discoverability, as being informed by his overall view of the evidence, and not just the limited references to those considerations contained in [28].
3. I note, in particular, the following aspects of the evidence, as referred to by the trial judge in his judgment:

(a) The letter in question was sent approximately five weeks after the accident. The respondent had, by that time, experienced ongoing pain in his head, neck, shoulders, wrist, back and knees. He continued to work and, although at the time the letter was sent, had had two to three days off work, there was no other reason to suppose that he would not continue working. He had seen a general practitioner, Dr Sutherland. His Honour specifically noted that Dr Sutherland's evidence was relevant to the issue of the date of discoverability. He summarised Dr Sutherland's evidence in the following passages:

"[18] Dr Sutherland's evidence is also relevant to this issue. He said that he had been the plaintiff's general practitioner since 1994. He confirmed that the plaintiff saw him on 12 April 2006, when he gave the history of being involved in a motor vehicle accident on the previous Saturday. Dr Sutherland noted complaints of the left wrist being painful, giving way when he was trying to pick up heavy books, and of pain in his neck, shoulders, upper back and lower back radiating to his buttocks, along with sore knees. On examination, there was a full range of movement in the wrist, with no swelling, although some reported tenderness.

[19] Dr Sutherland also noted that the plaintiff was tender in several neck muscles, and had slightly reduced range of movement of his cervical and lumbar spine. Dr Sutherland assessed the plaintiff as suffering from multiple soft tissue injuries and suggested the use of simple analgesia to see how things went. He said that since that time there has been no evidence of bony injury in spite of a lot of imaging being performed. In the relevant period, Dr Sutherland's notes show a further wrist X-ray on 18 May 2006. Other evidence shows that the plaintiff saw Dr Sutherland five times between the accident and 21 May 2006, with all accounts being paid relatively promptly by the MAIB."

(b) At [103] of the judgment, his Honour makes a finding that the respondent had in the accident, "... suffered injury to his low back; specifically the motion segment at L5/S1 level. That involves both the disc and the facet joint. I think it is more likely than not that he continues to suffer pain and discomfort in his back". This finding was based, in part, on the evidence of medical experts and their interpretation of CT and MRI scans which took place in mid to late 2006. The scans "... showed a central disc bulge at L5/S1 level with the disc having loss of hydration and a possible annular tear". These findings are of some significance in that, in his general findings, his Honour considered that, "... it is his back condition which dominates the debate about physical injury. I find that the other things are essentially of nuisance value" (see [104]). As at the date of the letter, these investigations had not been conducted, the bony injury had not been discovered, and the respondent had not been given any medical advice or information about his injury other than that contained in his discussions with Dr Sutherland, which are referred to in the above passages.

(c) As already noted, as at the date of the letter, the respondent was still at work. He was having some difficulty with his symptoms but it is a reasonable conclusion, and one which was open to the learned trial judge, that if the respondent had commenced proceedings at that time, on the basis of the injury as known to him at that time, his damages would be restricted to an award for non-economic loss. He did not stop working until August 2006. He was then off work for 12 months, and when he returned to work, returned on limited hours until eventually on 9 September 2011, his employment was terminated. The assessment of damages for loss of earning capacity was based on this history. This history is consistent with his Honour's finding concerning the question of actual knowledge at the date of the letter.

1. As the respondent's symptoms developed, radiological investigation confirmed the existence of bony injury, and his injuries extended to psychological injury, it would have become clear to the respondent that his claim for personal injury would involve a significant claim for damages which would include not only a significant component for non-economic loss, but also components for loss of earning capacity and other aspects of economic loss. Clearly, as these matters became clear, the respondent acquired knowledge of an injury which was significant enough to warrant the bringing of proceedings. However, the respondent's knowledge of the extent of his injury as at the crucial date, 21 May 2006, was limited to some ongoing symptoms arising from soft tissue injury. Although he was awaiting the results of an x-ray for his wrists, there had been no other radiological testing or investigation. There was nothing to suggest that the injury was worse or likely to become worse than what was being experienced by the respondent at that time. Given the respondent's actual and constructive knowledge of his injury at that time, it was open to his Honour to find that it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award for damages. Without such advice, in the circumstances of this case, it could not be said that proceedings were warranted at that time. It follows that his Honour's conclusion that he was not affirmatively satisfied that Mr Barclay's letter sufficiently established actual knowledge of the fact referred to in par (c) of the definition, and his ultimate conclusion expressed at [30] that he was not satisfied that the date of discoverability was before 21 May 2006, were open on and justified by the evidence.
2. Accordingly, grounds 1 and 3 must fail.

"2 The learned trial Judge erred in failing to take account of the absence of evidence as to when the plaintiff did have the actual knowledge referred to in paragraph (c) of the definition of date of discoverability in Section 2(1) of the Limitation Act 1974 and the absence of evidence of the date when the plaintiff provided instructions to institute proceedings. Had those matters been taken into account then the conclusion reached at [30] of His Honour's reasons for judgment could not have been reasonably reached."

1. This ground specifically concerns his Honour's ultimate conclusion at [30]. For the reasons expressed above, this ground must also fail.
2. The onus of proof was on the appellant to satisfy the trial judge that the limitation period referred to in s 5A precluded the commencement of proceedings. Given that proceedings had commenced on 20 May 2009, the focus of the enquiry was whether the date of discoverability was prior to 21 May 2006. It was entirely appropriate for his Honour to focus his enquiry on whether he was satisfied that the respondent had actual or constructive knowledge of the relevant information on or before that date. The fact that the respondent did not give specific evidence which would establish when he acquired the relevant knowledge, was irrelevant. A consideration of the whole of the evidence, as found by his Honour in accordance with the summary discussed above, established that the time when actual or constructive knowledge of the relevant fact was acquired would have been some time well after 21 May 2006. The crucial fact was that his Honour was unable to find that the limitation period had commenced by 21 May 2006, and that was sufficient to dispose of the matter pleaded in defence.
3. Viewed in that context, it was of little importance as to when instructions were actually given by the respondent to commence proceedings.

1. As none of the grounds of appeal have been made out, I would dismiss the appeal.