Baker-Morrison v State of New South Wales
57The plaintiff, a two-year-old child, was injured on 26 May 2004 in the reception area of a local police station when her fingers became caught in automatic sliding doors which opened when a person entered through them into the reception area. The injuries to the plaintiff's fingers were serious, although there was a question in the proceedings whether the injuries were sufficiently serious to bring a claim within the meaning of s 50D(1)(c).
58The plaintiff's mother sought legal advice the following week. The solicitor immediately wrote to the local police suggesting that the letter be forwarded to their public liability insurer, indicating that a claim for damages was likely to be forthcoming. The solicitor also sought permission to inspect the door and the surrounding area. That permission was granted and the inspection took place a few days later. During the course of that inspection, the solicitor observed that an angle iron had been installed at the base of the door, which he assumed had been placed there to diminish the risk of another similar accident occurring.
59The solicitor wrote to the plaintiff's mother informing her of the observations made on inspection and forwarding the photographs that had been taken. He advised that a letter of demand had been sent to the police but suggested a period of inactivity whilst the plaintiff was undergoing treatment and the insurer's investigations were being carried out.
60The solicitor gave evidence that he did not at that time form a belief that the plaintiff had reasonable prospects of success in a claim, or that the occupier was at fault in causing the injuries. He said he did not convey to the plaintiff's mother that the plaintiff had reasonable prospects of success in making a claim, nor did he receive any information from the plaintiff's mother that she believed there were such prospects, at any time prior to 14 March 2005.
61The solicitor also gave evidence that he was informed by the plaintiff's mother that she would wait for his advice before making any decision about a claim for her daughter. In this regard, the plaintiff's mother had informed him that she had no experience or knowledge in making personal injury claims and would rely on his advice.
62On 21 June 2007, three years and 26 days after the injury, a statement of claim was filed on behalf of the plaintiff. The question for the court's determination was whether the cause of action was discoverable by the plaintiff within the 26 day period beyond the three years period, which expired on 27 May 2007. If it was, then the claim was statute barred. The relevant person in this case, for the purposes of s 50D, was the plaintiff's mother, who was the plaintiff's tutor in the proceedings.
63The question for the Court's determination was the meaning of "fault" within s 50D(1)(b), so as to determine whether the plaintiff's mother was aware, in the relevant period, that the injury to the plaintiff was "caused by the fault of the defendant".
64The plaintiff argued that s 50D(1)(b) involved a degree of appreciation of the potential legal liability of the defendant.
65The State argued it was sufficient that the plaintiff appreciate that there was a connection between some act or omission of the defendant and the injury and that the relevant act or omission was blameworthy, though not necessarily in a legal sense. This argument echoed the construction given to the equivalent Victorian section in Spandideas. The State acknowledged in its argument that if the requisite knowledge for the purposes of s 50D required the application of any degree of professional expertise or assessment, the evidence did not permit a finding that the mother knew that the injury was caused by the fault of the State or that the injury was sufficiently serious to justify bringing an action.
66The principal judgment was given by Basten JA. His Honour's reasoning was as follows:
"25 A cause of action is 'discoverable' for the purposes of s 50C if the relevant person has either actual knowledge or what is sometimes described as 'constructive' knowledge, being what he or she 'ought to know' of certain facts: s 50D(1) ... Both limbs require giving content to:
(i) the concept of knowledge, and
(ii) each of the identified 'facts'.
26 These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to par (a). The plaintiff's injury involved a physical wound which was readily apparent to her mother. Although that disposes of par (a) for the purposes of the present case, it should be noted that, in the case of a psychological injury, additional questions will arise. For example, does 'injury' refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a 'recognised psychiatric illness' from emotional distress as required by the Civil Liability Act, s 33?
27 Some support for a construction which does not import any element of legal knowledge may be found in the repeated use of the word 'fact' to describe that which the person knows or ought to know. However, the meaning of that term must be ascertained by reference to the whole of the provision and the possibility that (at least in some circumstances) the relevant fact identified in par (a) (namely, injury or death) is of a different quality to those identified in pars (b) and (c). Furthermore, at least in pars (b) and (c), the singular 'fact' is used to describe a composite of inferences or the result of an evaluation. This is a drafting technique which used to be deplored (see Smith v Central Asbestos Co Ltd [1973] AC 518 at 531-532 (Lord Reid)), but now passes with little protest. However, it deprives reliance on use of the word 'fact' of much significance in this statutory context."
67Having thus observed that the relevant fact for the purposes of paras (b) and (c) may, in some cases, be a different quality to the relevant fact for the purposes of para (a), his Honour stated in respect of s 50D(1)(b):
"28. In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."
68Basten JA, at [39] 464, rejected the proposition that it was necessary for a person to be able to articulate a cause of action for the purposes of para (b). Rather, "it [was] the key factors necessary to establish legal liability [that had to] be known". His Honour, at [40] 464, rejected the State's argument that it had demonstrated:
"... that the plaintiff's mother knew, at the relevant time, of any steps that could and should reasonably have been taken by the occupier of the premises to render the sliding door safe."
69His Honour considered that, "[u]ntil the plaintiff's mother was aware, or ought to have been aware, of the availability and reasonable practicability of installation" of a protective guard covering the area of operation of the sliding glass door, "she could not be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety". In his Honour's view, those were the terms in which the relevant test under s 50D(1)(b) should be formulated.
70It is apparent from [41] that Basten JA considered that a legal evaluative judgment appeared to be required by s 50D(1)(b) and this was even more explicit in s 50(1)(c). His Honour considered this provision required a plaintiff to know (or ought to know) that "the injury suffered was sufficiently serious to justify the bringing of an action": s 50D(1)(c). In other words, a plaintiff had to know that the defendant's conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action, absent appropriate legal and medical advice in respect of such matters.
71Basten JA also considered, at [43] 465, that s 50D was to be read in a broader context. One such context was the requirement that a claim for damages for personal injury, in cases where a solicitor acts for a plaintiff, must be accompanied by a certification that the proceedings have prospects of success: the Legal Profession Act 2004, s 347. This supported his Honour's construction of s 50D(1)(b) that a plaintiff had to know, or ought to have known, that a defendant's conduct was actionable.
72Basten JA concluded, at [45]-[46] 465, that the plaintiff's mother did not have actual knowledge necessary to satisfy s 50D(1)(c) or, in all probability, the necessary knowledge to satisfy s 50D(1)(b).
73His Honour then dealt with constructive knowledge for the purposes of s 50D(2):
"57 The next question was whether the plaintiff's mother ought to have known each of the facts identified in sub-s 50D(1). The answer to that question must depend upon the effect of sub-s (2). It purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. (emphasis added)
58 In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.)
59 The phrase 'ought to have known' can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression 'ought to know' was identified by reference only to what the putative plaintiff 'would' have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word 'would' (rather than 'should') is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice.
60 It was not suggested that, in the 26 day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail.
61 It may be added that, even if an inquiry into whether the solicitor acted reasonably were called for, the State neither called evidence to show that he had failed, nor cross-examined him to suggest that he had failed, to take particular steps which he should reasonably have taken in order to supply the mother with appropriate advice or information."