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.