Deadlines apply to many legal matters so that disputes can be resolved promptly with the aim of providing fairness and justice to all parties. One important reason for time limits is that the reliability of evidence is reduced by the passing of time as people’s memories falter and records can be lost.
The need to bring legal action within a prescribed period of time is reflected in legislation, including the Limitations Act 1969 in NSW (‘the Act’). This post addresses the concept of ‘discoverability’ – an important date that marks the beginning of the period in which the legal claim can be made.
The guidance of professionals with experience in personal injury compensation matters is essential when working out whether a legal cause of action is discoverable as it can at times be a complex issue to determine. An injured person needs to take reasonable, adequate, and prompt steps to obtain medical and legal advice after an incident or injury to determine whether they have a cause of action.
When does an action become discoverable?
Discoverability is most commonly used to refer to an injury that may only become apparent to the injured person sometime after it was sustained. This is often the case in cases of medical negligence, dust diseases and aggravations of existing injuries.
Under the definition in section 50D of the Act, a cause of action becomes discoverable by a person on the first date they know or ought to know of each of the following facts:
- the fact that the injury or death concerned has occurred;
- the fact that the injury or death was caused by the fault of the defendant;
- in the case of injury, the fact that the injury was sufficiently serious to justify bringing the cause of action.
In addition, the Act explains that a person ought to know of a fact – such as an injury being the result of the defendant’s negligence – provided that they have taken ‘all reasonable steps’ before that time to ascertain the fact.
The court may have regard to the conduct and statements (oral or in writing) of the injured person in determining what they knew or ought to have known at a particular point in time.
From the time the cause of action is discoverable, a plaintiff has three years to commence Court proceedings. Because discoverability of certain injuries can take longer, the legislation also applies a long-stop limitation period of up to 12 years in certain situations, defined by the Act in sections 62A and 62B.
For a defendant, when a claim is brought ‘out of time’ by the plaintiff, i.e. beyond the three-year time limit, they may rely upon the provisions of the Act to argue that the person’s injury was discoverable before the expiration of the time limit but for the fact they did not take reasonable steps to discover it or regard it as sufficiently serious.
Examples from the courts
In the NSW Supreme Court case of Thompson v Rosen  NSWSC 356, a personal injury claim brought by a patient was sought to be struck out by two gynaecologists on the basis that it was commenced more than 10 years after the treatment. The doctors argued that the woman’s injuries had been discoverable from as early as 2007, around the time when the treatment occurred, and were sufficiently serious that her action should have commenced within three years of that date.
However, the court found that a plaintiff’s cause of action is also not discoverable until they are aware that their injuries are caused by the fault of the defendant/s. This required the plaintiff to have obtained an opinion from a relevantly qualified expert opining that the defendants breached the duty of care and that the breach caused the plaintiff’s injuries. In this case, the patient had not received an expert report until September, 2018, meaning her claim was commenced within the limitation period based on the date of ‘discoverability’.
In Best v Rosamond, the New South Wales Court of Appeal dismissed an appeal by Mr Best against a District Court decision that his personal injury claim should be barred because it was brought after expiration of the three-year limitation period. Mr Best had sought damages from Mr Rosamond after the latter assaulted him, causing an injury to his left eye.
The trial judge found that Mr Best knew or ought to have known that his ‘injury was sufficiently serious to justify the bringing of a cause of action’, as required by s 50D(1)(c) of the Act, before the date three years prior to the commencement of proceedings. The Court of Appeal agreed with the trial judge. In dismissing Mr Best’s appeal it concluded that, acting reasonably, Mr Best’s cause of action was discoverable before the three years in which he could bring the action began. The court found that had he taken reasonable steps to obtain legal and medical advice prior to that date, he would have known that his injury was sufficiently serious to justify bringing a claim. Accordingly, the claim was statute barred due to expiration of the limitation period.
Speak with our compensation experts
At BPC Lawyers compensation is our personal injury lawyers specialty. If you are unsure about making a personal injury claim because of the time limitation, and are uncertain about when and whether your injury was discoverable, contact one of our experts today for an initial discussion of your situation.