Tolmie v Stockland Trust Management Limited

CATCHWORDS: LIMITATION OF ACTIONS - action for damages for personal injury - date when cause of action is discoverable - whether plaintiff ought to have known of the fact that the injury was caused by the fault of the second defendant - whether plaintiff took all reasonable steps by seeking legal advice thirteen months after accident - whether fault of the second defendant would have been ascertained if reasonable steps taken - Limitation Act 1969 (NSW), ss 50C, 50D - WORDS & PHRASES - "discoverable" - "fault" - "ought to know"

Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bostik Australia v Liddiard & Anor [2009] NSWCA 167 CASES CITED: Country Waste Systems Pty Limited v Lauren Jane Wright [2007] NSWDC 287 Frizelle v Bauer [2009] NSWCA 239 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Toppin v Coles Myer Limited v McVean [2007] NSWDC 256

Margaret Tolmie (plaintiff) PARTIES: Stockland Trust Management Limited (first defendant) David Frazer and Gregory Manson t/a Quick Serve Fruit & Veg Shop (second defendant)

Mr V Jurisich (plaintiff) COUNSEL: Ms L Amy (solicitor) (first defendant) Mr D Lloyd (second defendant)

P K Simpson & Co (plaintiff) SOLICITORS: Curwoods Lawyers (first defendant) Riley Gray-Spencer Lawyers (second defendant)

1 By a notice of motion the plaintiff seeks an order that her action against the second defendant is maintainable because it was brought within three years from the date on which the cause of action was discoverable by the plaintiff pursuant to s 50C and 50D of the Limitation Act 1969 (NSW).

2 There was some discussion at the outset of the hearing as to the form of the application. I will deal with the question of whether the proceedings against the second defendant are maintainable as a separate determination under Uniform Civil Procedure Rules r 28.2 as was done in Country Waste Systems Pty Ltd v Lauren Jane Wright [2007] NSWDC 287.

3 The plaintiff relied on an affidavit of the plaintiff dated 22 June 2005 and an affidavit of the plaintiff's solicitor Catherine McKay dated 2 June 2009. The plaintiff also gave oral evidence.

4 The second defendant tendered a public liability incident report form with an attached witness statement and the medical records of the plaintiff's general practitioner.

5 Then plaintiff was born in January 1941. She is now 68 years of age. At the date of the accident she was 64. She is an aged pensioner.

6 The plaintiff's claim arises out of an accident that occurred on 9 February 2005 at the Bay Village Shopping Centre at Bateau Bay ("the shopping centre"). The first defendant was the occupier of the shopping centre. One of the shops in the shopping centre was a fruit and vegetable shop ("Quick Serve Fruit & Veg") run by the second defendant. Quick Serve Fruit & Veg was the major dedicated fruit and vegetable shop at the shopping centre.

7 At the time of the accident the shopping centre was undergoing renovations. While the building work was being carried out Quick Serve Fruit & Veg was not in its usual location. It had been temporarily relocated to an area in the middle of the shopping centre.

8 In her oral evidence, the plaintiff said that she had been to the shopping centre hundreds of times and had often been to Quick Serve Fruit & Veg. On this occasion Quick Serve Fruit & Veg had been set up in an aisle opposite a butcher's shop. Some of the fruit and vegetables were displayed on tables and some were displayed in open boxes. The plaintiff was picking some onions from one of the boxes when she slipped on some water. As a result she suffered a serious injury to her right knee and back. When asked to describe the water the plaintiff said, "there was water running down from everywhere."

9 At the time of the accident the plaintiff spoke to an employee of Quick Serve Fruit & Veg and asked if she could see the shopping centre manager. The employee told her that the shopping centre was closed and asked her to come back the next day. The plaintiff asked the employee to mention her fall to the management.

10 The following day the plaintiff went to see her general practitioner Dr Orgias. She told him that she had fallen over at the fruit shop. She had pain in her right knee, lower back and her right hip. After seeing Dr Orgias, she went back to the shopping centre. She spoke to a person at the service desk and told him that the previous day she had slipped on some water and fallen over. She wanted to let him know what had happened.

11 During 2005, the plaintiff regularly saw her general practitioner. In view of the submission made by the second defendant that the plaintiff should have sought legal advice by around mid-2005, it is necessary to set out a chronology taken from the general practitioner's notes.

10.02.05 Sees Dr Orgias who notes history of falling over at shopping centre when pushing trolley. Foot went out from under her. Says she thought there was something on floor. She slid and ended up on floor twisting as she went down and landing on her knee. Jarred her back and hurt her right leg. Has pain in right knee and lower back. Knee feels like going to give way when she walks. Pain in right wrist and bruising medially on her right knee. 17.03.05 Sees Dr Orgias who notes fractured left knee is steadily improving. Principal reason for consultation recorded as being depression. 08.04.05 Sees Dr Steenkamp. Noted to be depressed and emotional and unable to attend court case. Certificate issued. 21.04.05 Sees Dr Orgias who notes reason for visit related to depression in connection with family issues and court case. 19.05.05 Sees Dr Orgias. Complains of depression. Not coping and no motivation. Feels like she wants to die. Has been thinking about it. Financial problems. Reason for consultation recorded as depression. Given 6 Risperdal tablets. 25.05.05 Sees Dr Orgias. Risperdal noted to help her sleep and make her feel better. Entry records: "Needs a letter to lawyer about her health and stress situation." Claims her memory is becoming bad. Family history of Alzheimer's grandmother and mother noted. CT scan of brain requested. 10.06.05 Sees Dr Orgias. Complaints of pain over sacro iliac joint. On examination noted to be tender over lower back and over the lower sacroiliac joint. Prescribed Voltaren Rapid and Eleuphrat cream. 08.07.05 Sees Dr Orgias. Noted: "Can't walk" and "has pain in lower back". Full blood examination, electrolyte and liver function tests requested for night sweats. X-rays of the lumbar spine for bilateral pain at L4/5 requested. Tazac, Tramal and Valium. 13.07.05 See Dr Orgias. Noted to have severe back pain. Given a sample of neurontin. Letter to Dr Nick Little printed regarding lower back pain. CT scan of lower back requested as x-rays noted to show problems with lower back at L5 S1. Tramal prescribed. Reason for consultation recorded as severe back pain. 19.07.05 Sees Dr Steenkamp for bad back. Endone tablets ceased. Prescribed Codalgin Forte if needed for severe pain. 21.07.05 Sees Dr Orgias. He notes that back looks like she has osteoarthritis and a bit of spinal stenosis. 27.05.05 Sees Dr Orgias. He notes that she has been having immense pain in her back and is not coping with it. Using Tramal, Panamax and Panadeine Forte. Noted to be "in tears trying to walk." 05.08.05 Sees Dr Orgias. Noted to be in pure agony with her back. Has a letter from Dr Seikhorn for an MRI. Tramal not taking away pain at all. Neurontin not helping. Is taking 5 lots of tablets and getting no relief. Noted to be "frightened to move her leg." 10.08.05 Telephone consultation recorded by Dr Orgias with daughter. Has a lot of further pain. MRI tomorrow. 15.08.05 Sees Dr Orgias. Noted to be moving very slowly and appeared to be in some pain and is to have her MRI today. Cannot walk without stick. Has pains down her leg and claims she can't take pain. Reason for visit recorded as lumbago-sciatica. 17.08.05 Sees Dr Orgias. Noted to be moving very slowly with assistance. Not really coping at all. Nothing stops the pain. Letter to Dr Mark Russo regarding back pain. Requested liver function test for previously abnormal screen. Reason for consultation recorded as severe low back pain. Kapanol prescribed. 18.08.05 Sees Dr Orgias. Imaging requested: Liver, biliary tract ultrasound. ? CT has an obstructive liver picture. Prior gall bladder surgery noted. Has back pain ++ ? referred liver pain. 19.08.05 Sees Dr Orgias. Noted to be getting most of her pain in the right side and now going down her leg. Has pain in her groin and pain in her lower abdomen. On examination is noted to be tender over her lower back and tender back. Noted to be moving a bit better. 24.08.05 Sees Dr Orgias. Back pain is noted to be settling down. Ultrasound results show that she has a dilated bile duct. Pain noted to be behaving like a healing fracture. Dr Orgias notes that bone density results (from bone scan) show a possible pelvic fracture. CT scan of liver and pelvis requested. 01.09.05 Sees Dr Steenkamp who notes insufficiency fracture of her pubic ramis. 06.09.05 Sees Dr Steenkamp. General examination. 13.09.05 Sees Dr Steenkamp. Noted to have insufficiency fracture and getting severe depression. 19.09.05 Sees Dr Orgias. Recorded as wanting Oroxine. Noted to have been using a lot of Kapanol and last 3 visits she has seen Dr Steenkamp and he will not prescribe narcotics script without seeing. Reason for visit recorded as for prescription. 04.10.05 Sees Dr Steenkamp. General examination. 26.10.05 Sees Dr Steenkamp. General examination. 08.11.05 Sees Dr Steenkamp. Noted to be feeling very depressed. Suicidal over son's heroin problems. 25.11.05 Sees Dr Steenkamp. Query regarding healed fracture in pelvis. CT scan requested to query whether fractures healing. 08.12.05 Sees Dr Steenkamp regarding feet swelling. CT scan lower abdomen requested for chronic pain and query whether fracture of pelvis healing. 09.12.05 Sees Dr Steenkamp. Noted to have fracture of pelvis. Letter to Dr Michael Hunter. 30.12.05 Sees Dr Hawkes. Noted to have fracture of pubic ramus and a lot of ongoing pain. Further consultation with Dr Orgias. Noted that she had seen Dr Hunter who said she had an ununited fracture. Noted to be having trouble. Reason for visit recorded as pelvic fracture.

12 During 2006 the plaintiff's condition continued to deteriorate. After a fall when her right knee gave way, the plaintiff sustained a fracture to her left femur and underwent a hip replacement. In August 2006 after another fall she suffered a fracture to her left wrist and required a further operation. On about 14 October 2008 the plaintiff's hip gave way again and she was admitted to Gosford Hospital for a further hip replacement. She had several admissions to hospital and was discharged for the final time in about November 2008.

13 The plaintiff said that as her condition continued to deteriorate she sought legal advice on 3 March 2006 by telephoning PK Simpson Lawyers ("P K Simpson").

14 It was her understanding that her solicitors could not arrange medical appointments until her injuries had stabilised. She attended appointments arranged by her solicitor with a Dr Kwong, physician, on 10 April 2007 and Dr Kalnins, orthopaedic surgeon, on 11 April 2007.

15 On 27 November 2007 the plaintiff was telephoned by her solicitor, Ms McKay, and advised that if she wished to commence proceedings she would need to do so by 9 February 2008. She gave instructions for her solicitors to commence proceedings.

16 The plaintiff said that she was not aware until about April 2009 that her solicitor had joined the second defendant to the proceedings. She was advised that the first defendant had filed a cross claim against the second defendant and that it was possible for a Court to find the second defendant partially responsible for not cleaning up the water. She was advised that she should join the second defendant to the proceedings.

Obtaining legal advice: The evidence of Catherine McKay, solicitor

17 Ms McKay is the solicitor at P K Simpson who has had the conduct of the plaintiff's case since October 2007. Ms McKay said that the plaintiff first provided telephone instructions to P. K. Simpson on 3 March 2006. The plaintiff said she had suffered an injury on 9 February 2005 when she slipped on a puddle of water in the shopping centre. The puddle was due to a leaking roof at the shopping centre which was undergoing renovations.

18 On 10 March 2006 a file was opened and preliminary investigations and searches as to the legal identity of the first defendant were undertaken. The first defendant was at that time identified as Stockland Corporation Limited.

19 On 11 April 2006 a letter of demand was forwarded to the first defendant advising that the plaintiff was commencing proceedings in the District Court in relation to the accident on 9 February 2005. The letter stated: "If our understanding of you having care and control of the premises is incorrect, please confirm the name of the person or company that does have care and control and any contact details if known." 20 P K Simpson did not receive a response to this letter.

21 On 9 January 2007, the plaintiff attended at P K Simpson and had a conference with the solicitor who was then looking after her case. The plaintiff told her solicitor about her hip replacement surgery on 20 June 2006 and the surgery on her left wrist on 2 August 2006.

22 The plaintiff was unable to be examined for medico-legal purposes until after March 2007. She was examined by Dr Kwong and Dr Kalnins, in April 2007. Both doctors provided reports that were subsequently served on the first defendant.

23 On taking over the file in October 2007, Ms McKay became aware that the limitation period expired on 9 February 2008. On 22 November 2007 she sent a brief to counsel and a telephone conference was arranged for 27 November 2007 with counsel and the plaintiff. The plaintiff was advised about the limitation period and the need to commence proceedings by 9 February 2008. The plaintiff gave instructions to commence proceedings.

24 The statement of claim was drafted by counsel who was of the view that the occupier of the shopping centre was the appropriate defendant based on the plaintiff's instructions that the water on which she slipped was rain water which had leaked through the roof of the shopping centre.

25 On 23 January 2008, the statement of claim was filed against the first defendant.

26 The first defendant filed an appearance on 14 February 2008 and requested further and better particulars on 18 February 2008. P K Simpson responded to that request on 14 May 2008.

27 On 29 April 2008 Ms McKay arranged for the issue of a subpoena directed to the first defendant requesting the production of documents in relation to liability. The subpoena was returnable on 19 May 2008. The first defendant did not produce documents on the return date and so a further return date was arranged for 16 June 2008.

28 On 21 May 2008, the first defendant wrote to P K Simpson stating: "We have now had the opportunity of investigating the circumstances of this claim. Our investigations have revealed that your client slipped and fell within the David Fraser Quick Serve Fruit &Vegetable Shop and did not fall within the common area of the shopping centre. We enclose for your information a copy of a diagram provided by a sales assistant employed by the David Fraser Quick Serve Fruit & Vegetable Shop. We have interviewed two sales assistants from the David Fraser Quick Serve Fruit & Vegetable Shop who both confirm that the incident occurred within the leased premises. In the circumstances we consider that Stockland will successfully defend your client's claim. We consider that your client's claim should be redirected to David Fraser Quick Serve Fruit & Vegetable Shop." 29 On 21 May 2008, Ms McKay had a conference with counsel to discuss the first defendant's letter and to discuss whether or not to join the second defendant. Counsel advised that a letter be sent to the second defendant enclosing a copy of the first defendant's letter and asking whether the second defendant had care and control of the premises. Counsel also advised Ms McKay that before the plaintiff joined the second defendant, it was important to obtain further evidence which had been sought pursuant to a subpoena served on the first defendant but not previously produced. Ms McKay therefore arranged a further return date for 6 June 2008.

30 On 28 May 2008 P K Simpson wrote to Manson and Frazer Pty Ltd t/as Quick Serve Fruit & Veg Bateau Bay: "We act for Margaret Tolmie who instructs that she was injured in an accident at your premises at Bay Village Shopping Centre, The Entrance Road, Bateau Bay NSW on or about 9 February 2005. We are instructed that whilst attending your premises at the above address, our client was in the fruit shop which had been set up in the middle of the shopping centre (due to renovations in the centre) and that as our client was walking to the counter, she slipped in a pool of clear liquid causing her to fall and sustain injury. We are instructed that our client's injury occurred as a result of your negligence or that of your servants or agents. We have been instructed to commence proceedings in the District Court of New South Wales for damages. We have issued proceedings against Stockland Corporation Ltd by way of Statement of Claim Matter No. 193/08. We enclose a copy of correspondence from Curwood Lawyers, acting for Stockland Corporation Ltd, dated 21 May 2008. It is understood that you have care and control of the premises and that the negligence of you or your servants and agents caused or materially contributed to our client's injuries. Please advise within 14 days whether you accept liability for compensating or paying damages for our client's injuries and consequential losses that include medical bills and pain and suffering. Please also advise us of the name of your public liability insurer, if any, so we may correspond with them in the future if need be. If our understanding of you having care and control of the premises is incorrect, please confirm the name of the person or company that does have care and control and any contact details if known. If you believe some other person or company is to blame for our client's accident, please provide their details. Please provide us with a copy of your lease for Quick Serve Fruit and Veg Bateau Bay as of 9 February 2005. We look forward to hearing from you." 31 There was no response to this letter.

32 On 3 June 2008 the first defendant wrote to P K Simpson advising that at the time of the plaintiff's accident the shopping centre was owned by Trust Company of Australia which was managed by Stockland Trust Management Ltd. The letter said nothing as to who was the relevant occupier. The first defendant invited the plaintiff to amend the statement of claim to join the second defendant. A copy of the front page of a lease between the first and the second defendant was enclosed. The lease commenced on 10 August 2008, some eight months after the plaintiff's accident.

33 On 3 June 2008 the first defendant responded informally to the subpoena returnable on 16 June 2008 advising that some documents had now been produced to the Court.

34 Ms McKay inspected the documents produced by the first defendant, however, found that not all the documents called for by the subpoena had been produced. Ms McKay did not think that the documents produced by the first defendant assisted on the question of the liability of the second defendant. Accordingly, she wrote to the first defendant on 21 July 2008 pointing out that not all the documents sought by the subpoena had been produced.

35 On 22 July 2008, Ms McKay attended a conference with counsel to discuss the documents produced under subpoena by the first defendant and the issue of joining the second defendant. Counsel's advice was that a further subpoena should be issued and that the decision of whether or not to join the second defendant should not be made until after the documents had been produced.

36 On 25 July 2008 Ms McKay wrote to the first defendant, Stockland Trust Management Ltd seeking confirmation and an admission as to who was the occupier of the shopping centre.

37 On 30 July 2008 subpoenas were issued to Stockland Corporation Ltd, Stockland Trust Management Ltd and the second defendants returnable on 18 August 2008.

38 On 4 August 2008, the first defendant advised that the occupier of the common area of the property was Stockland Trust Management Ltd. In a separate letter, also dated 4 August 2008 the first defendant provided a copy of the contract between Stockland Trust Management Ltd and Harvent Pty Ltd who were the cleaners of the shopping centre.

39 By letter dated 11 August 2008 the first defendant informally produced further documents in compliance with the original subpoena to Stockland Corporation Ltd filed on 29 April 2008.

40 On 19 August 2008 an employee from P.K. Simpson photocopied the documents produced pursuant to the subpoenas filed on 29 July 2008 and returnable on 18 August 2008. Stockland Corporation Ltd and Stockland Trust Management Ltd had produced documents, however, they were not in response to the subpoena that had been served on them filed 29 July 2008 but were in response to the first subpoena filed 29 April 2008.

41 On 27 August 2008 Ms McKay wrote to the first defendant seeking its consent to the amendment of the name of the first defendant to Stockland Trust Management Ltd. This consent was forthcoming.

42 On 23 September 2008 the first defendant filed a defence. The plaintiff received a copy of the defence on 25 September 2008.

43 The first defendant filed a cross claim against the second defendant on 2 December 2008. A copy was served on the plaintiff on 5 December 2008.

44 When Ms Mckay received a copy of the cross claim she arranged a conference with counsel to again discuss joining the second defendant. Counsel advised that it was appropriate to join the second defendant.

45 On 15 January 2009 the plaintiff filed a further amended statement of claim joining the second defendant. This was served on the second defendant on 18 February 2009. On 4 March 2009 the second defendant filed a notice of appearance and on 6 May 2009, after an exchange of particulars, the second defendant filed a defence to the further amended statement of claim. The second defendant pleaded that the plaintiff's claim against the second defendant was statute barred by s 18A of the Limitation Act 1969.

46 The issue is whether the plaintiff knew, or ought to have known, discoverable facts in the period 9 February 2005 to 15 January 2006.

15 January 2006: 3 years before amended statement of claim filed against second defendant

3 March 2006: Plaintiff contacts solicitor for the first time

23 January 2008: Statement of claim filed against first defendant

15 January 2009: Amended statement of claim joining second defendant filed

47 The second defendant submitted that the plaintiff's cause of action was discoverable before 15 January 2006. If this is correct the plaintiff's cause of action against the second defendant is time barred since under the 'discoverable facts' provisions of the Limitation Act 1969 there is no mechanism for an extension of time. The Limitation Act

48 Sections 50C and 50D of the Limitation Act 1969 are as follows: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the "3 year post discoverability limitation period", which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, ......... Date cause of action is discoverable 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action . (2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased. "

49 There is no issue about s 50D(1)(a) and (c). In relation to sub-paragraph (a), the plaintiff knew immediately of the fact that an injury had occurred.

50 In relation to sub-paragraph (c), the plaintiff did not seriously dispute that by August 2005 she was aware that she had suffered an injury sufficiently serious to justify the bringing of an action. By 13 July 2005 the plaintiff had severe back pain and a CT scan showing problems with the lower back at L5 S1. By the end of July she was noted as having immense pain in the back and was noted to be "in tears trying to walk." By August 2005 she was taking five lots of tablets and getting no relief. She was in pure agony with her back and was noted to be, "frightened to move her leg."

51 The real issue concerns s 50D (1)(b) and whether, prior to 15 January 2006, the plaintiff knew or ought to have known of the relevant discoverable fact, namely, that her injury was caused by the fault of the second defendant. The second defendant conceded that there was no evidence of actual knowledge on the part of the plaintiff. This was an appropriate concession. The critical issue is, therefore, whether the plaintiff had constructive knowledge of the fault of the second defendant within the meaning of s 50D(2) of the Limitation Act 1969.

52 There are two distinct aspects to a consideration of this issue. Firstly, what is meant by "fault" in s 50D(1)(b). Secondly, what amounts to constructive knowledge within s 50D(2) in circumstances in which the plaintiff has sought, received and at all times acted upon legal advice.

53 Both these aspects have been considered in the recent decisions of the Court of Appeal in Baker-Morrison v State of New South Wales [2009] NSWCA 35, Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 and Frizelle v Bauer [2009] NSWCA 239. 54 On the meaning of "fault" in s 50D (1)(b), in Baker-Morrison v State of New South Wales [2009] NSWCA 35 at [28] Basten JA said: "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." 55 At paragraph [39] his Honour said: "The linguistic difference between s 60I(1) and s 50D(1) cannot be disregarded. The test in s 60I is broader in two respects, and therefore easier for a defendant to establish. First, the relationship between injury and act or omission is said in s 60I to be one of "connection", whereas in s 50D it is one of causation. Secondly, the phrase "act or omission" is replaced by "fault". On the other hand, in a practical sense, the latter distinction may be more apparent than real. Once it is accepted that the act or omission of which the person is to be aware under s 60I is the existence of an alternative system or precaution, apparently being one reasonably available, the point of distinction is diminished. As explained in Drayton, there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known . In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor with the underlying approach in Dedousis and Drayton." (emphasis added) 56 On the question of constructive knowledge, his Honour said at [37] and [57]: "37 Although the statutory test is expressed in terms of what the person "knows or ought to know" of the identified facts, the objective element was clearly and expressly identified in the Negligence Report as the primary aspect of discoverability: at par 6.28. As will be noted below, s 50D(2) identifies when a person ought to know a fact on an assumption that the person had "taken all reasonable steps before that time to ascertain the fact". Taking all reasonable steps must, in appropriate circumstances, include obtaining medical and legal advice and information. That assumption, and the significance given to it in the Negligence Report, remove any curiosity which might otherwise inhere in the conclusion that the concept of "fault" was to be ascertained by reference to legal concepts. ..... 57The 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. " 57 I therefore approach the issue before me by considering two questions. Firstly, did the plaintiff take all reasonable steps to ascertain the facts. In this context, "the facts" refers to the causal relationship between the injury and the fault of the defendant. Secondly, if the plaintiff did not take reasonable steps, what would have been ascertained had she taken those reasonable steps.

Did the plaintiff take all reasonable steps to ascertain the facts

58 The plaintiff first consulted a solicitor on 3 March 2006, almost thirteen months after the accident.

59 In Baker-Morrison at [58] Basten JA said: "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.)" 60 Without more, the plaintiff would appear to fall within the circumstances contemplated by his Honour, namely, that the step of instructing a solicitor is sufficient to satisfy the requirements of taking "all reasonable steps."

61 The second defendant, however, drew attention to a passage from the judgment of Basten JA in Frizelle v Bauer [2009] NSWCA 239 at [27]-[28], and placed particular reliance on that part of the judgment which is in bold in the extract below: "27 There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the "fault" of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at [24]. Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case. 28 The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt." 62 Although his Honour was referring to sub-paragraph (c) of s 50D, counsel for the defendant submitted that his Honour's remarks were equally applicable to sub-paragraph (b). Adapted to the circumstances of the present case it was said that his Honour's remarks mean that the period during which the necessary assessment had to be made was a period of thirteen months after the accident. The fact that further evidentiary material on the question of the second defendant's fault needed to be gathered is beside the point so long as the fault of the second defendant could reasonably have been assessed in the period.

63 The plaintiff first saw a solicitor on 3 March 2006. The second defendant says that this was unreasonable and identifies the time when the plaintiff should have seen a solicitor as some time in mid-July 2005. It was clear by mid-July 2005 that the plaintiff knew not only that she had a serious injury but also that she knew the name of the shop where she fell over, the manager of the shop, the whereabouts of the shop and that she fell because there was water on the floor. The second defendant says that with this knowledge the plaintiff should have taken steps in July 2005 to clarify any doubt about the putative defendant.

64 In my view the plaintiff took all reasonable steps to ascertain that her injury was caused by the fault of the second defendant within the meaning of s 50D(2) for the following reasons.

65 Firstly, as the general practitioner's notes chronicle, the plaintiff's health was deteriorating during 2005 in large part due to the back injury she suffered in the accident. In addition, she began to suffer from depression caused, in part, by the accident. The plaintiff knew that she had slipped and seriously injured herself and accordingly, some thirteen months later (or some seven to eight months after the seriousness of the injury was apparent), she sought legal advice. In my view given the nature of her deteriorating medical condition which undoubtedly distracted and pre-occupied her on a day to day basis, it was reasonable for the plaintiff not to seek legal advice until March 2006.

66 Secondly, the plaintiff sought legal advice well within three years of the date of injury, the date she appreciated the seriousness of the injury and the date when the second defendant says she ought to have known of the fact that the injury was caused by the fault of the second defendant. Viewed prospectively rather than retrospectively and even assuming that time began to run in 2005 the plaintiff sought legal advice when there was still roughly two and half years before time expired.

67 Thirdly, it is necessary to keep in mind that what s 50D(2) assumes is that a person has taken all reasonable steps to ascertain "the fact." In this case "the fact" is the injury, the fault of the second defendant and the causal connection between the injury and the fault. While the plaintiff knew the name of the shop, the name of the manager, the whereabouts of the shop and the fact that she fell because the floor was wet she also knew (or at least believed) that the shop was in a common area and that the water was on the floor because of a leaking roof in the shopping centre. There is nothing in these facts which gives rise to actual knowledge on her part as to the fault of the second defendant. So much was conceded by the second defendant. The plaintiff is not a lawyer and there is nothing in the facts known to her which would raise in the mind of a layperson that it was necessary to expeditiously set about ascertaining the identity of the second defendant, identifying fault on the part of the second defendant and ascertaining the causal relationship between the fault of the second defendant and the injury.

68 Finally, in my view, the passage in paragraph 28 of Frizelle v Bauer set out above does not assist the second defendant. Frizelle v Bauer was a case of actual knowledge, not constructive knowledge. The passage from the judgment of Basten JA refers to something that was evident to the plaintiff, namely, the seriousness of her injury. The reference to further evidential material being gathered was a reference to material which would give more particularity to the seriousness of the injury. The passage does not support the proposition that in the present case the plaintiff had to make an assessment of the second defendant's fault by seeking legal advice prior to January 2006.

69 My finding that the plaintiff took all reasonable steps to ascertain the relevant fact means that it is strictly unnecessary for me to consider the next question, namely, what would have been ascertained had the plaintiff taken reasonable steps. In the event, however, that I am wrong in my conclusion that the plaintiff had taken all reasonable steps, I will deal with the question below. If the plaintiff did not take reasonable steps, what would have been ascertained had those reasonable steps been taken

70 The second defendant says that if solicitors had been instructed in mid-2005 then the relevant defendant or defendants would have been ascertained by January 2006 and proceedings against the second defendant commenced.

71 In Baker-Morrison at [59] Basten JA said: " 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."

72 I proceed, therefore, on the basis that s 50D(2) is not directed to an enquiry into the appropriateness or reasonableness of the conduct of the plaintiff's legal representatives, although in doing so I note the comments of McFarlane JA in Frizelle v Bauer at [30]: "30 There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind. According to Baker-Morrison, the terms of s 50D(1) may not be engaged: see, Baker-Morrison at [59]. That, however, is not the present case and the correctness of that view does not arise. 73 While it is asserted by the second defendant that a competent solicitor instructed in mid-2005 would have commenced proceedings against the second defendant within seven or eight months, there is no evidence that had the plaintiff contacted P K Simpson in mid-2005 they, or any other lawyer, would have proceeded any differently and/or advised the plaintiff differently. Nor is there evidence that counsel's advice in drafting the original statement of claim would have been any different. Counsel was of the view that the occupier of the shopping centre was the appropriate defendant based on the plaintiff's instructions that the water on which she slipped was rain water which had leaked through the roof of the shopping centre.

74 Even as at the date of the hearing, notwithstanding the various letters written by P K Simpson and the subpoenas issued, it appears that the decision to join the second defendant was made on the basis that a cross claim had been served rather than that any independent evidence had come to light. The fault of the second defendant is not self evident given that the Quick Serve Fruit & Veg was operating as a makeshift shop in an apparently common area. The second defendant has been joined because the plaintiff is in doubt as to the defendant from whom she is entitled to redress: Law Reform (Miscellaneous Provisions) Act 1946 s 2(1)(c).

75 To the extent that the submission made by the second defendant contains an implicit criticism of the the plaintiff's lawyers I note that in relation to the conduct of legal representatives, Basten JA in Baker-Morrison stated at [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." 76 In the present case, Ms McKay was not cross examined. It was not put to her, for example, that she would, or should, have acted differently had she been instructed in 2005 such that she would have joined the second defendant to the proceedings within seven or eight months of being instructed.

77 I find that if the plaintiff had taken all reasonable steps the relevant s 50D(1)(b) fact would not have been ascertained by her prior to January 2006.

78 The plaintiff submitted that the defendant should pay the plaintiff's costs of the motion as was done, for example, in Toppin v Coles Meyer Ltd & McVean [2007] NSWDC 256. The second defendant submitted that in the circumstances it is appropriate to make no order as to costs.

79 In Holt v Wynter[2000] NSWCA 143; (2000) 49 NSWLR 128 at 121, a case involving an application for an extension of time under the Motor Accidents Act 1988 (NSW), Sheller JA said that ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. Under the 'discoverable facts' provisions of the Limitation Act the effect of a finding that the facts were not relevantly discoverable is that the plaintiff is entitled to sue because the statement of claim was commenced within time. What is involved in such a case is not the exercise of a discretion in favour of a plaintiff who has 'allowed herself to get out of time' but rather a finding of entitlement.

80 The plaintiff has succeeded on the notice of motion and the appropriate order is that the second defendant pay the plaintiff's costs of the motion.

81 I find that the plaintiff's action against the second defendant is maintainable.

82 I order the second defendant to pay the plaintiff's costs of the motion.

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