Key Takeaways

The plaintiff failed in her recent action for assault and battery against her neighbour in circumstances where she had not thought to raise the prospect of such an action with criminal lawyers she had retained in respect of the 2012 incident.

In the context of an action for damages for personal injury, a plaintiff’s conduct in the period following injury will be closely scrutinised and the mere opportunity of seeking legal advice might offer a defendant a sufficient basis upon which to establish a defence under the Limitation Act 1969 (NSW) (the Act).

Brief Facts

The plaintiff sought damages for assault and battery in relation to a broken wrist, grazes to her knees and right shoulder and psychological injury arising from an incident involving her neighbour.

On 23 September 2012, the plaintiff was attempting to retrieve her dog from the defendant’s property where it had taken undue interest in his chickens.

The plaintiff alleged that the defendant threatened to kill the dog as she was removing him and returning to her land and that an altercation ensued in which the plaintiff fell to the ground, suffering injury.

The defendant’s wife sought an Apprehended Violence Order (‘AVO’) against the plaintiff. The plaintiff applied for an AVO against the defendant and criminal charges instigated by the defendant against the plaintiff were later dropped.

The plaintiff sought legal advice in relation to the criminal proceedings from criminal defence lawyers, as she was concerned a criminal record could jeopardise her nursing registration. The plaintiff did not at that time seek legal advice about injury compensation. The plaintiff first contacted Turner Freeman for such advice in 2018; in relation to what she believed was a potential claim for malicious prosecution. She claimed that she had not previously turned her mind to whether she could make a claim against the defendant because he had not been charged with assault or battery.

The defendant denied liability and also pleaded that the plaintiff’s claim was statute barred.

Limitation Act

The plaintiff’s claim was filed on 21 September 2018, nearly six years after the event.

Section 50C of the Act provides that a cause of action in a personal injury action is not maintainable if brought after the expiry of the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff (a 12-year longstop provision also applies, but it is of no relevance here).

The meaning of ‘discoverable’ appears in ss50D(1) of the Act as follows:

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.

Subsection 50D(2) helpfully adds:

(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.

In 2012 in State of NSW v Gillett, Beazley JA accepted that for the purpose of fault in s50D(1)(b), a defendant had to establish that the plaintiff knew that the matter was legally actionable.

Judgment

In relation to injury, Strathdee DCJ held that the plaintiff as a nurse had sufficient medical knowledge and experience to know that her injuries were serious.

The more difficult questions pertained to whether they were sufficiently serious and the fault of the defendant, i.e. the plaintiff’s appreciation of whether she had an action worth pursuing against the defendant, bearing in mind defences potentially available to him, such as self-defence.

In short, should she have known that injuries allegedly inflicted by the defendant were legally actionable and sufficiently serious to justify bringing an action?

In considering whether the plaintiff had taken all reasonable steps in this respect, Strathdee DCJ applied the 2009 NSWCA decision Baker-Morrison v State of NSW (NSWLR 2009), noting in particular:

‘Whether an injury is ‘sufficiently serious’ is an enquiry requiring a legal evaluative judgment. No proper view can be formed about the justification for bringing an action without legal advice: Baker-Morrison [41]–[42]. Hence, the taking of ‘reasonable steps’ will generally require a plaintiff to seek legal advice about whether a civil action should be commenced.

As a matter of common sense, this step would require a prospective plaintiff to not only retain a lawyer, but also provide the lawyer with instructions that are sufficient to cause the advice to fall within the scope of the retainer. This is consistent with the comments of Basten JA (with whom Ipp & MacFarlan JJA agreed) in Baker-Morrison. His Honour noted (at [58]) that whilst in most circumstances the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking all reasonable steps, 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.’

Accepting that the plaintiff had not received relevant legal advice prior to 2018, the Court held her failure to make inquiries about the possibility of a claim against the defendant was unreasonable and ruled that the plaintiff’s claim was statute barred.

Strathdee DCJ observed that it was hard to accept that despite knowing she was seriously injured, the plaintiff did not seek legal advice from the lawyers she retained for the criminal proceedings. In support of this view, mention was made of the plaintiff’s involvement in workers compensation proceedings as evidence of her awareness about a potential cause of action.

Implications

The limitation defence for personal injuries in Division 6 of Part 2 of the Act was inserted in 2002. It arises for consideration if an action is commenced more than three years after the injury.

The circumstances upon which the success of the defence depend will be viewed objectively, but they are generally much better known to the plaintiff than any potential defendant, at least at the outset. This is especially true in NSWDC actions where an evidentiary statement by the plaintiff need not be served before trial.

It is for this reason that the limitation defence is included in the defence filed and usually then left for determination at trial, rather than in a hearing of the issue separately and in advance of trial – as happened for example in Bet v UTS Haberfield Club Limited (NSWDC 2008).

As mentioned above, judgment about what a plaintiff ‘ought to know’ is assisted by ss50D(2) which provides:

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.

In relation to ‘ought to know’ and what might constitute ‘all reasonable steps’, Basten JA observed in Baker-Morrison at [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.)

The present case saw the plaintiff consult a solicitor early, but only in relation to criminal charges arising from the altercation. So the drawing of a distinction between receiving legal advice about an injury and legal advice about an associated criminal charge was identified as an opportunity to circumvent the drawing of the inference that the plaintiff would have at that early stage ascertained the fact that the injury was sufficiently serious. But then it became apparent during the trial that the plaintiff’s knowledge of matters relevant to an assessment of whether ‘the fact that the injury was sufficiently serious to justify the bringing of an action’ was such that the court was nevertheless satisfied that the cause of action was discoverable by her.