BAKER-MORRISON v STATE OF NEW SOUTH WALES [2009] NSWCA 35

Reported Decision: 74 NSWLR 454

New South Wales Court of Appeal

CITATION: BAKER-MORRISON v STATE OF NEW SOUTH WALES [2009] NSWCA 35

HEARING DATE(S): 20 February 2009

JUDGMENT DATE: 4 March 2009

JUDGMENT OF: Ipp JA at 1; Basten JA at 2; Macfarlan JA at 63

(1) Grant leave to appeal.

(2) Set aside the judgment and orders of the District Court made on 27 June 2008 and, in lieu thereof, order that: DECISION: (a) the defendant's motion be dismissed, and (b) the defendant pay the plaintiff's costs of the motion.

(3) Order that the respondent pay the appellant's costs in this Court.

CATCHWORDS: LIMITATION OF ACTIONS – date on which cause of action "discoverable by plaintiff" – whether plaintiff aware that injury "caused by fault of the defendant" – whether injury was "sufficiently serious to justify the bringing of an action on the cause of action" – meaning of "fault" – comparison of s 50D with extension of time provisions and similar provisions in other jurisdictions – objective test – key factors necessary to establish legal liability – whether taking all reasonable steps includes obtaining medical and legal advice and information – Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) – Limitation Act 1969 (NSW), ss 50C, 50D, 50F, 57B, 60A, 60G, 60I – Limitation Act 1980 (UK), s 14 – Limitation of Actions Act 1958 (Vic) ss 27D, 27F - LIMITATION OF ACTIONS – defences – onus of proof - LIMITATION OF ACTIONS – minor with capable parent – s 50D assessed by reference to knowledge of minor's parent or what parent would have known – Limitation Act 1969 (NSW), s 50F - PROCEDURE – when proceedings commenced – Civil Procedure Act 2005 (NSW), s 19(1) – Uniform Civil Procedure Rules 2005 (NSW), r 6.2 - STATUTORY INTERPRETATION – "discoverable" – "fact" – "ought to know" – purposive interpretation – statutory framework – objective test – use of cases from other jurisdictions interpreting similar provisions of Limitation Acts – comparison with extension of limitation periods provisions – Limitation Act 1969 (NSW), ss 50D - WORDS AND PHRASES – "discoverable" – "fact" – "knowledge" – "ought to know" – "proceedings commenced" – "take all reasonable steps"