87GDate of discoverability

87G Date of discoverability

Definition

(1) The date of discoverability for the death or injury is the first date when the plaintiff in the proceeding knows or ought to know each of the following:

(a) that the death or personal injury has occurred;

(b) that the death or personal injury was attributable to a contravention of this Act;

(c) that in the case of a personal injury—the injury was significant enough to justify bringing an action.

Constructive knowledge

(2) For the purposes of subsection (1), the plaintiff ought to know a fact if the plaintiff would have ascertained the fact had the plaintiff taken all reasonable steps before the date in question to ascertain the fact.

Use of the plaintiff’s conduct and statements

(3) In determining what the plaintiff knows or ought to have known, the court may have regard to the plaintiff’s conduct, and to the plaintiff’s oral or written statements.

Minors

(4) If the plaintiff is a minor, facts that a capable parent or guardian of the plaintiff knows or ought to know are taken for the purposes of subsection (1) to be facts that the plaintiff knows or ought to know.

Incapacitated persons

(5) If:

(a) the plaintiff is an incapacitated person; and

(b) there is a guardian of the plaintiff, or other person to manage all or part of the plaintiff’s estate, under a law of a State or Territory relating to the protection of incapacitated persons;

facts that the guardian or other person knows or ought to know are taken for the purposes of subsection (1) to be facts that the plaintiff knows or ought to know.

Proceedings by personal representatives

(6) Despite subsection (1), if the plaintiff brings the proceeding in the capacity of the personal representative of a deceased person, the date of discoverability for the death or injury is the earliest of:

(a) if, had the deceased person commenced a proceeding, in relation to the contravention to which the death or injury relates, before his or her death, the date of discoverability under subsection (1) would have occurred more than 3 years before the death—that date; or

(b) if, at the time of the plaintiff’s appointment as personal representative, the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c)—the date of the appointment; or

(c) if the first time at which the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c) was after the date of appointment—the date of that first time.