District Court New South Wales Medium Neutral Citation: Steven Galea v AMP Capital Investors Limited and Glad Cleaning Services Pty Ltd [2015] NSWDC 65 Hearing dates: 23-24 April 2015 Date of orders: 08 May 2015 Decision date: 08 May 2015 Jurisdiction: Civil Before: Letherbarrow SC DCJ Decision: The separate question is answered "no" with respect to each defendant Catchwords: LIMITATIONS - slip and fall in shopping centre –discoverable facts – whether known or ought or ought to have been known Legislation Cited: Uniform Civil Procedure Rules, Rule 28.2 Limitation Act, 1969, ss50C, 50D Civil Liability Act, 2002 Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bostik Australia Pty LCD v Liddiard & Anor [2009] NSWCA 167 State of New South Wales v Gillett [2012] NSWCA 83 Category: Principal judgment Parties: Plaintiff: Steven Galea First Defendant: AMP Capital Investors Limited Second Defendant: Glad Cleaning Services Pty Ltd Representation: Counsel: Plaintiff: Mr Kalfas SC First and Second Defendants: Mr Parker SC Solicitor: Plaintiff: Cohen & Krass First and Second Defendants: Hall and Willcox File Number(s): 2011/298967 Publication restriction: Nil Introduction 1. By their motion filed 26.6.14, the defendants sought, inter alia, an order pursuant to Rule 28.2 of the UCPR that the question of whether the plaintiff had brought his proceedings against them after the expiration of the limitation period prescribed by s50C of the Limitation Act, 1969, be determined as a separate question before trial. 2. On the 5.9.14, another judge of this court made the order sought and, by consent, ordered that the "following questions and agreed results for determination at the Hearing of the separate question" were to be as follows: 1. 1. Whether the plaintiff's claim against: 1. The first defendant; and/or 2. The second defendant. Is statute-barred by reason of the Limitation Act 1969 (NSW). 1. If question 1(a) is answered "yes" then there will be judgment for the first defendant with costs. 2. If question 1(b) is answered "yes" then there will be judgment for the second defendant with costs. 3. If question 1 (a) is answered "no" then there will be an order that costs of the Motion and Hearing of the separate question be the plaintiffs costs in the cause. 4. If question 1 (b) is answered "no" then there will be an order that costs of the Motion and Hearing of the separate question be the plaintiff's costs in the cause. 1. When the separate question came on for hearing before me on 23 March last, Mr Parker SC, counsel for the defendants, read the following affidavits: 1. Ms Gabriella Pearson, Senior Claims Consultant, of 26.6.14 2. Mr Andrew Allan McArthur, solicitor, of 26.6.14 1. On behalf of the plaintiff, Mr Kalfas SC read the following affidavits: 1. Mr Warren Krass, the plaintiff's current solicitor, of 3, 6 and 7.11.11. These affidavits annex considerable material obtained by, inter alia, the plaintiff's former solicitors, Teakle Ormsby Conn (TOC), including a typed statement of the plaintiff dated 19.2.08 (the plaintiff's statement). 2. The plaintiff of 4.11.14 3. Mr Douglas Eggins, solicitor of 6.11.14. Mr Eggins had conduct of the plaintiff's file up until he resigned from TOC in September 2009 due to "an on-going dispute" with the firm. 4. Mr Stuart Moffet, the plaintiff's counsel retained in the substantive proceedings, of 25.3.15. Mr Moffet was first retained by Mr Eggins to act on behalf of the plaintiff in June 2009. 1. Of the Plaintiff's deponents, Mr Parker SC cross examined the plaintiff, Mr Eggins and Mr Moffet. Mr Kalfas SC did not cross examine either of the defendants' deponents. 2. In addition, some further documentary evidence was tendered which included a "Liability Incident Report" (the incident report) dated 29.1.08 and prepared by the first defendant in relation to the plaintiff's accident. This became exhibit 1. Further, a CCTV recording of the plaintiff's accident, which involved him allegedly slipping on a spillage at the first defendant's shopping centre at North Ryde on that date, became exhibit B. The accident and its aftermath 1. The following summary is to be treated as my findings of fact as to the matters detailed under this sub-heading. 2. The plaintiff was born on 13.12.72 and is currently 42 years of age. In his oral evidence, he presented as a truthful witness and Mr Parker SC did not submit to the contrary. He also had clear difficulty with his memory and in understanding questions. At one point, he even asked that one question be "dumbed down" so that he could follow it. With due respect to him, he appeared to be of somewhat limited intelligence. 3. As stated, the plaintiff's accident occurred at the first defendant's shopping centre at North Ryde on 29.1.08. On that date, he went there during the course of his employment to "collect batteries" and whilst walking through one of the public areas, slipped and fell on what he believed to be was spilled soft drink. He deposed that at that time; "I had no idea who had spilt it or for how long it had been there. I did not know who was at fault". 1. As a result, the plaintiff injured his lower back, left knee and left foot. He agreed with Mr Parker SC that he knew immediately after his fall he had suffered very painful injuries. 2. The cleaner on duty at the shopping centre attended the scene of the plaintiff's accident shortly afterwards and the plaintiff obtained his name. This is recorded in the plaintiff's statement as "Roymon Minijaja" but his correct name is apparently Raymon Hinojosa, as set out in the incident report. 3. A security guard also came to the scene and told the plaintiff his first name. 4. Before leaving the shopping centre, the plaintiff asked at several nearby stores whether anyone had seen him fall. As a result, he obtained the name of a "Chinese girl" who worked at a juice shop but whom would not give him her telephone number. The plaintiff said that he did this in case "something did arise" but he denied Mr Parker SC's suggestion that he did so "to support a claim", stating that he was more concerned with his "medical condition". The plaintiff also noticed that there was a security camera located nearby to where he fell. 5. Within a couple of days, the plaintiff attended upon a general practitioner near his work who referred him for some x-rays and gave him some pain killers. A few days later, he gave the plaintiff a worker's compensation certificate. The plaintiff then rang his worker's compensation insurer, CGU, and "put in a claim". The relevant worker's compensation claim form was completed some time later. It is dated 21.4.08 and signed by the plaintiff. In it, he describes his accident in the following terms: "…was walking thru shopping centre with items in both hands then slipped". 1. The plaintiff also "notified the Macquarie Shopping Centre" of his injury by telephone on 5.2.08. 2. On approximately 6.2.08, the plaintiff received a letter from "Claims Management Australasia Pty Ltd", dated 5.2.08, referencing a "fall at Macquarie Shopping Centre – 29.1.08". The substance of this letter is as follows: "We confirm we act for Macquarie Shopping Centre in relation to the above incident. We refer to your telephone conversation with Denise of our office today and provide this letter to you so that you have our contact details. We are sorry to hear of your fall and wish you a full recovery." 1. On 8.2.08, the plaintiff rang Claims Management Australasia Pty Ltd and spoke to a Ms Gabriella Pearson, the author of the letter to the plaintiff of 5.2.08. In Ms Pearson's affidavit of 26.6.14, she annexes a handwritten file note in relation to her conversation with the plaintiff of 8.2.08 which is as follows: "Macquarie / Galea 7001739 Call from Mr Galea 8/2/08 3.45pm. Mr Galea wanted to check whether we had the cleaner's details on(?) incident report. I advised that we did. He was also advised Hungry Jack's employees would have seen the spill?? He said that there was a camera in the area which would show the fall. He advised that he has reported the incident to his W/com insurer. He is on light duties. Sole trader – no other employees. Finding it difficult to cope etc. I told Mr Galea that the incident would be fully investigated including cleaners activities and any tenant responsibilities etc. I also advised Mr Galea that it was up to him to write to us with his claim/ details of lost income/ opt expenses – but noted that he was currently receiving W/com benefits. It may be that the insurers will seek recovery." 1. In relation to the incident report, the plaintiff agreed in cross-examination that he had been told by "Centre Management" that such a report had been completed but later he said that he could not in fact recall whether or not he knew that such a report existed. When shows a copy of it (Ex 1), he said that he had never previously seen it. He also said that he had never asked the "Macquarie Centre" for a copy. 2. It should be noted that the incident report records the plaintiff's fall as occurring at 3pm in front of "Hungry Jacks". Under the heading "Incident Details", the following is recorded: "Control (Makhail) radioed to IS2 (Scott) to attend outside Hungry Jacks for a code orange (Slip and fall). Upon my arrival I spoke with a male customer now known to me as Steve Calea. I asked Steve what happened and he stated that he was walking past Hungry jacks when he suddenly slipped on some coke that was on the ground. I then asked Steve if he was alright which he replied that his left foot and lower back are sore. I asked if Steve wanted to go to the medical centre but he refused. I took down the details of the incident and photos of the scene". 1. Annexed to the incident report in evidence is a single sheet containing three small black and white photographs of an area within the shopping centre with what appears to be a of sign on the floor. The sign is close to the area where the plaintiff is shown falling in the CCTV footage discussed below. The plaintiff is not in any of these photographs which I infer were taken some time after he left. 2. The incident report goes on to detail the name of the "Cleaning firm" as "Glad Cleaning" and further records that the area was "Last Cleaned/Inspected prior to the incident" at 2.45pm, namely 15 minutes before the plaintiff's fall. 3. As I understand it, until the incident report was tendered on behalf of the defendants by Mr Parker SC, it had not come into the possession of either the plaintiff or his past or present solicitors. The plaintiff seeks legal advice and undergoes surgery 1. Again, the following summary is to be treated as my findings of fact as to the matters detailed under this sub-heading. 2. The plaintiff first sought legal advice from TOC on 19.2.08 which was also the day he gave his statement to Mr Eggins. He chose this firm as it had acted for him previously in relation to a neck injury sustained in a motor vehicle accident in 2002. Mr Eggins was not involved in this earlier matter. There was no cross examination of the plaintiff about this earlier accident or any proceedings arising therefrom and there is little mention of it in the other materials in evidence. 3. As a consequence of seeing Mr Eggins on 19.2.08, the plaintiff deposed that he received "the impression" that Mr Eggins would investigate the circumstances of his fall and whilst "there might be possible claims to bring", the plaintiff said that he "did not get any detailed advice in that conference about what my case was or against whom it would be brought." 4. Mr Eggins gave similar evidence, deposing that at this first conference, whilst he "may have speculated about possible claims", he did not provide the plaintiff "with advice on what legal rights he had" because he "did not have any evidence." 5. In late February 2008, the plaintiff received a letter from Mr Eggins dated 22.2.08 headed "Your Workers Compensation Claim". This letter appears to be largely a standard form letter and provides certain general advice to the plaintiff in relation to his workers compensation rights, including his modified common law rights. It does not refer to any potential action against either of the defendants. 6. At the same time, the plaintiff received a second letter from Mr Eggins dated 27.2.08 and headed "Your Public Liability Claim". This letter advises the plaintiff that Mr Eggins had written to Claims Management Australia Pty Ltd requesting that it provide a copy of the CCTV footage of the incident and that he would contact the plaintiff when a response was received. I infer that the plaintiff had told Mr Eggins at their first conference about the security camera he had seen in the area of his fall even though it is not referred to in the plaintiff's statement. As to this letter, Mr Eggins deposed that he did not include any advice to the plaintiff in it "because it was too early to know if the case was viable." 7. On 14.3.08, Mr Eggins received an email from Claims Management Australasia Pty Ltd advising that it was in possession of the relevant video footage but that a copy would not be provided. However, it invited him to view the relevant footage at its offices. Mr Eggins deposes that he did not take up this invitation as he "wanted to see what the medical case was like before investing a large amount of time visiting an office to see the video". 8. On 8.4.08, Mr Eggins spoke with the plaintiff over the telephone. His file notes of the conversation are brief and deal with such matters as medical reports and the plaintiff's medical appointment arranged with Dr Clark, orthopaedic surgeon, for the following day on referral from the plaintiff's general practitioner. They do not contain any reference to any advice of any sort. 9. In his report of 9.4.08, Dr Clark refers to a CT/arthrogram of the plaintiff's left knee as revealing a tear in his lateral meniscus. Dr Clark also notes a mild effusion found on examination as well as narrowing of the plaintiff's L4/5 disc shown on a recent CT scan. On 5.6.08, the plaintiff was reviewed by Dr Clark after a MRI scan of his left knee. In his report of that date, Dr Clark recommends that an arthroscopy be undertaken. 10. On 26.6.08, Mr Eggins wrote to the plaintiff requesting him to make an appointment "to further discuss his workers compensation claim." As a result, the plaintiff conferred with Mr Eggins for a second time on 7.7.08. The plaintiff deposes that Mr Eggins did not then provide him "with any advice", instead telling him that he would "arrange a conference with a barrister after your surgery." Mr Eggins himself deposes that he did not then give the plaintiff "advice on his public liability case" and told him that he would "arrange a conference with a barrister" once the outcome of the plaintiffs surgery was known. 11. In relation to his work, after the plaintiff was first certified as only being fit for restricted duties by his GP on 7.2.08, he continued to undertake same up until Dr Clark performed the arthroscopy on his left knee on 21.7.08. After this surgery, the plaintiff said that his knee improved for a short period before returning to its previous state. He also said that his back remained a problem. 12. In the second half of 2008, despite at that point being certified unfit for work, the plaintiff continue to work in his own business, which was conducted through a company, in an attempt to "save it… from collapse." This attempt was unsuccessful in the short term and the plaintiff has not worked since and remains on workers compensation payments to this day. 13. Sometime in mid-2008, the plaintiff deposes that he "tried to see the CCTV footage for myself" but after contacting "the shopping centre", he was told that his "solicitor has to be with him". 14. In August 2008, Mr Eggins chased up and received from CGU certain medical reports and certificates relevant to the plaintiff's workers compensation claim. 15. On 17.9.08, Mr Eggins telephoned "someone at Emersons Australia about the CCTV footage" and was told that it showed the plaintiff "falling over". Mr Eggin's file note of this telephone conversation, which is again brief, includes the note "Glad Cleaning is in-charge". The evidence does not disclose who "Emersons Australia" may have been representing. 16. Mr Eggin's deposes that he cannot "remember the context" surrounding the making of this file note and does not remember "saying anything to the plaintiff about that." However, in cross-examination Mr Eggins conceded that he understood from this note that he was being informed that the second defendant "was the cleaner at the centre" and that they were "in charge". 17. In cross-examination, the plaintiff said that Mr Eggins never told him "he had obtained the name Glad Cleaning". 18. On 17.2.09, the plaintiff attended a third conference with Mr Eggins and provided him with an update on his circumstances. As to this conference, the plaintiff deposes that "again" his recollection was that he "received no advice about a potential claim for damages or any claim at all against anyone other than my employer". It is clear from Mr Eggins much more detailed file note of this conference that it was mainly concerned with matters going to the plaintiff's economic loss medical condition. It includes no mention of any advice given to the plaintiff. However, it does reveal that at this point the plaintiff's business had "not sold yet" and that he was "2 months behind in the rent" and "since 2008 (had) made no money". 19. On 3.3.09, Mr Eggins arranged a medico legal appointment with Dr Giblin, orthopaedic surgeon, in early June 2009 for the purpose of obtaining "some medical evidence for a possible public liability claim pending advice from counsel." 20. On 23.6.09, Mr Eggins briefed Mr Moffet to "advise and draft a statement of claim and statement of particulars in relation to this public liability matter." Whilst Mr Eggin's observations on brief refer to Mr Moffet being briefed with "all relevant documentation herein", the relevant index, which is the only part of the brief in evidence, does not include any reference to the incident report, the CCTV footage or the identity of the second defendant. 21. A conference was held between the plaintiff, Mr Eggins and Mr Moffet on 1.7.09. Mr Eggins deposes that Mr Moffet "provided provisional advice that it appeared that the shopping centre would be liable". Mr Eggins' file note of the conference also does not reveal any reference to the incident report, the CCTV footage or any discussion concerning any cleaning company contracted by the first defendant. 22. In his own affidavit, the plaintiff deposes that Mr Moffet did enquire at this conference as to the existence of CCTV footage and was told that whilst it existed "a copy was not available." The plaintiff then deposes that Mr Moffet said 'that it appeared that the shopping centre was liable and he could start the case but he wanted to see the CCTV footage and hear what witnesses had to say." The plaintiff goes on to depose that in this conference he "still had no information or advice in relation to Glad Cleaning" and that the "focus was only against the shopping centre." 23. In his own affidavit, Mr Moffet deposes that in this conference he "provided some brief advice in relation to a potential common law claim" using words to the following effect: "Based on Mr Galea's account and subject to other evidence from, for example, conferences with lay witnesses and what is disclosed in CCTV footage, there appears to be to be a viable action against the shopping centre." 1. In cross-examination the plaintiff said that he understood the word "viable" to mean "50/50". 2. Mr Moffet goes on to depose that in this conference he "gave no advice in relation to any possible claim against Glad Cleaning", nor did he "receive any instructions about Glad Cleaning." In this respect, Mr Moffet further deposes that he "did not become aware of the potential for a cause of action against Glad cleaning until after September 2011 when proceedings were commenced against the first defendant." By this statement, I infer that he means he became so aware as a consequence of the first defendant pleading in its defence filed on 3.4.12 that, inter alia, it had delegated any duty of care it owed to the plaintiff to the second defendant as described below. 3. After this conference, the plaintiff passed on the "names of some witnesses", apparently to Mr Eggins, and received, signed and returned a costs agreement relating to "proceedings against Macquarie Shopping Centre". 4. In early November 2009, the plaintiff received a letter from TOC requesting that he arrange an appointment to see a Mr Michael Conn "to up(date) and discuss your matter". As mentioned earlier, by this time Mr Eggins had resigned from TOC. In this regard, Mr Eggins deposes that at the time of his resignation in September 2009, he "had provided no advice to (the plaintiff) nor instructions to Counsel on any possible claim against Glad Cleaning Company." He further deposes that he became aware that the plaintiff's matter was taken over by Mr Conn "whose practicing certificate was suspended in February 2010" and who "passed away in or around February 2013." 5. In the last paragraph of his affidavit, the plaintiff deposes that he "did not learn of a possible claim against Glad Cleaning until 2011". 6. There is no reference in the evidence to when the plaintiff's current solicitors, Cohen and Krass, were instructed by him. 7. However, the evidence contains an email dated 24.3.10 from a paralegal at TOC mentioning a complaint from the plaintiff about being passed around from solicitor to solicitor within the firm and that he "seemed concerned and wanted to know where his matter was at" 8. The plaintiff said in his oral evidence that TOC eventually went out of business and he didn't become aware of this until his present solicitor, Mr Krass, contacted him after having somehow receiving his file. 9. Mr Moffet deposes that he conferred with the plaintiff for a second occasion on 29.8.11 at the offices of Cohen and Krass and that this was when he "first viewed the CCTV footage". 10. The plaintiff does not refer to this second conference with Mr Moffet in his affidavit and he was not asked about it in cross-examination. Mr Moffet himself gave no evidence about what, if any, advice he gave to the plaintiff at that time. However, based upon his evidence that he did not become aware of any possible action against the second defendant until after September 2011, if any advice was then given to the plaintiff, I infer it was only to do with the first defendant's potential liability. 11. Mr Moffet gave evidence that he eventually drafted the plaintiff's initial statement claim which only joined the first defendant. This was filed on 16 September 2011. Mr Moffet said that his delay was due to a number of factors including his "other commitments", the fact that he went overseas and that when he returned Mr Conn had "lost his practicing certificate". In any event, the relevant pleading alleged that the plaintiff's accident was a result of the (first) defendant's negligence and relied upon the following particulars thereof: 1. failure to keep safe premises. 2. failure to mine's obtained safe premises. 3. failure to make available to the public walking surface safe for pedestrian use. 4. failure to clean or adequately clean the walking surface. 5. failure to have a safe system of cleaning. 6. failure to maintain a safe system of cleaning. 7. failure to enforce a safe system of cleaning. 8. leaving a pool of liquid on the floor. 9. allowing the floor to be slippery. 10. permitting a trap. 11. failure to barricade the slippery area. 12. failure to warn the plaintiff of the risk of injury. 1. In its defence, the first defendant pleaded, inter alia, that that it had "delegated responsibility for cleaning of the premises, including the area where the plaintiffs fell to (the second defendant) by way of a contract" and that it had discharged any duty of care owed to the plaintiff by doing so. As stated, this defence was filed on 13.4.12. 2. After the receipt of this defence by the plaintiff's current solicitors, Mr Moffet drafted the amended statement of claim joining the second defendant which was filed on 6.11.12. This pleads that the plaintiff's fall was occasioned by "the negligence of the defendants or either of them." The particulars of negligence pleaded against both defendants are identical to those pleaded in the statement of claim filed in September 2011. The CCTV Footage 1. The CCTV footage showing the plaintiff's fall is time stamped. It commences at 14.45 and ends at 15.00. It shows a busy area of the shopping centre being traversed by many persons. On the left is a food store, which I infer is "Hungry Jacks", where numerous persons are shown buying food and drink after waiting in line and then walking away. There does not appear to be any seating in the area. At 14.51.40, a male pushing what appears to be a cleaner's trolley, walks through the area without stopping. He does so a few metres to the right of a blurry mark on the light coloured floor. At 14.53 the plaintiff walks over an area close to this mark and slips and falls unexpectedly. Prior to his fall, several other persons including children appear to walk over this mark without incident. 2. After his fall, the plaintiff is assisted by bystanders and a cleaner with a trolley arrives and cleans the floor over a sizeable area after which the mark is no longer visible. A man dressed in a suit arrives, who I infer is the security guard mentioned, and who talks to the plaintiff for some time. The Limitation Act 1. The determination of the separate question involves the application of section 50C(1) and section 50D of the Limitation Act, 1969. These provide as follows: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the "3 year post discoverability limitation period" , which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the "12 year long-stop limitation period" , which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. 50D Date cause of action is discoverable (1) For the purposes of this Division, 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. (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. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased. The Issue 1. Bearing in mind that the proceedings against the first and second defendants were commenced at different times, namely on 16.9.11 and 6.11.12 respectively, the relevant question pursuant to the above-mentioned legislative provisions, whilst the same, must be answered by having regard to different periods for each defendant. With respect to the first defendant, the question is whether the plaintiff knew, or ought to have known, the "discoverable" facts in the period from 29.1.08 to 16.9.08. With respect to the second defendant, the question is whether such facts were known, or ought to have been known, to the plaintiff in the period from 29.1.08 to 6.11.09. The parties' primary arguments 1. It was common ground before me that the defendants bore the onus of proving that the plaintiff knew or ought to have known, within the relevant periods, of the "discoverable" facts in question. 2. However, the parties made significantly different submissions as to the correct interpretation of section 50D and in particular sub-section(1)(b). 3. Mr Kalfass SC conceded, unsurprisingly and with respect to both defendants, that the plaintiff actually knew on the day of his accident of the relevant fact contained within section 50D(1)(a), namely that injury had occurred. However, with respect to both defendants, he argued that the facts set out in sub-sections 50D(1)(b) and (c), namely that the injury was caused by the fault of the relevant defendant and that such injury was sufficiently serious to justify the bringing of an action, respectively, were neither known nor ought to have been known by the plaintiff in the relevant period. 4. On the other hand, with respect to the first defendant, it was Mr Parker SC's submission that the plaintiff knew that his injuries were caused by the fault of the first defendant on the day of his accident and that he knew such injuries were sufficiently serious to justify the bringing of an action by no later than 21.7.08 when Dr Clarke performed the left knee arthroscopy upon him. 5. With respect to the second defendant, whilst not suggesting that the plaintiff, within the relevant period, had become aware of its existence, let alone its contractual relationship with the first defendant, Mr Parker SC argued that its plaintiff "ought to have known" that his injuries were caused by its fault by the 17.9.08, being the date when Mr Eggins made the file note stating "Glad Cleaning is in charge". Further, as with the first defendant, Mr Parker SC argued that the plaintiff actually knew that his injuries were sufficiently serious to justify the bringing of an action against the second defendant no later than the date that he underwent the said arthroscopy. 6. As to s50D(1)(b), Mr Parker SC argued that to establish the plaintiff was aware that his injury "was caused by the fault of the (first) defendant" in the current circumstances, it was only necessary to show that he "knew liquid was on the floor and he fell on it." 7. When I pointed out to Mr Parker SC that despite appearing to know that he had fallen on liquid on the floor, the plaintiff at that time did not know, for example, how long the spillage had been on the floor, whether the first defendant knew it was there, what cleaning system, if any, existed within the shopping centre, whether the first defendant had engaged a cleaning company and, if it had, the identity of that company and upon what terms it had been engaged, Mr Parker SC submitted that knowledge of any of these matters were irrelevant as was any assessment as to the prospects of success in any action, which he submitted that the plaintiff could then have commenced against the first defendant. Mr Parker SC went on to submit that it "doesn't matter how hopeless any (such) proceedings are" for the purpose of section 50D(1)(b). Mr Parker SC further submitted that if it was shown that the plaintiff then believed, even wrongly, that he had "a claim", which Mr Parker SC argued he must have on the basis that he knew that he had fallen on a spillage, he therefore knew that his injury "was caused by the fault of the (first) defendant". 8. As for the second defendant, Mr Parker SC submitted, as I understood him, that when Mr Eggins made the file note of 17.9.08 that "Glad Cleaning is in charge", the plaintiff ought then be taken to have known that his injuries were "caused by" such entities' "fault" because the plaintiff should have taken the "reasonable step" of asking Mr Eggins "why aren't we suing the cleaner?" Mr Parker SC did not make it clear when this question should have been asked. 9. On behalf of the plaintiff, Mr Kalfass SC argued that neither on the day of his accident, nor at any time within the relevant period, did he know that his accident was caused by the "fault" of the first defendant due to his lack of knowledge concerning, inter alia, any of the matters which I had raised with Mr Parker during argument and because he was yet to receive any relevant legal advice. 10. With respect to both defendants, Mr Kalfas SC argued that the plaintiff had taken all reasonable steps within the relevant periods to ascertain whether his injury had been caused by either's fault by instructing solicitors, attending conferences and providing information requested of him. Therefore, it could not be said that the plaintiff "ought to have known" of the fact set out in s50D(1)(b). 11. Mr Kalfass SC also argued with respect to s50(1)(c) that because the plaintiff was at all times on worker's compensations payments and any action which he might bring against either defendant would be under the Civil Liability Act, 2000 (the CLA), difficult questions arose as to whether it was in the plaintiff's best interests to do so and about which he did not receive the appropriate advice from his lawyers within the relevant periods. The Law 1. Section 50D has been the subject of appellate consideration on a number of occasions. 2. In Baker-Morrison v State of New South Wales [2009] NSWCA 35, it was argued on behalf of the plaintiff that the reference to "fault" in subsection (1)(b) involved a degree of appreciation of the potential legal liability of the putative defendant, whereas the defendant argued that it was sufficient for the plaintiff to appreciate that there was a connection between some act or omission of the defendant and the injury and that the relevant act or omission was blameworthy, though not necessarily in a legal sense. 3. In finding in favour of the plaintiff, Basten JA, with whom Ipp and MacFarlan JJA agreed, at [28] stated as follows: "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." 1. At [39] – [40] Basten JA went on to state: "… 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. The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide "a protective guard or covering along the area of operation of the … sliding glass doors". Until the plaintiff's mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated". 1. At [41] Basten JA remarked: "Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but "sufficiently serious to justify" a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise." 1. As to the objective test contained within section 50D(2), which provides that 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", Basten JA at [58] stated as follows: "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"". 1. The interpretation of section 50D again came before the Court of Appeal for consideration in Bostik Australia Pty LCD v Liddiard & Anor [2009] NSWCA 167. At [130] Basten JA stated as follows: "The proceedings against the appellant were commenced more than three years after the date of injury. A defence based on the Limitation Act 1969 (NSW), s 50C, was rejected at trial. I agree with Beazley JA that the challenge to this finding should be dismissed because the cause of action was not discoverable until the plaintiff knew or ought to have known of a reasonably arguable case involving a connection between his injury and fault on the part of the appellant. The relevant facts included the contractual and practical relationship between (the second defendant) and the appellant." 1. More recently, a five-member bench of the Court of Appeal considered section 50D in State of New South Wales v Gillett [2012] NSWCA 83. The lead judgment was that of Beazley JA (as Her Honour then was). In that case, the State of New South Wales challenged the correctness of the Court of Appeal's earlier decision in Baker-Morrison, necessitating the bench of five. The primary submission of the State was summarised by Her Honour at [39] in the following terms: "The essential argument advanced was that for the purposes of section 50D, the necessary knowledge, whether actual or constructive, is of facts sufficient to establish that a person has a cause of action against the defendant. Section 50D does not require that a person also know that s/he has a cause of action, that is, it is not necessary that the plaintiff know that the defendant is legally liable." 1. After dealing at length was with Basten JA's decision in Baker-Morrison, Beazley JA stated at [70]: "It is apparent from [41] that Basten JA considered that a legal evaluative judgment appeared to be required by s 50D(1)(b) and this was even more explicit in s 50(1)(c). His Honour considered this provision required a plaintiff to know (or ought to know) that "the injury suffered was sufficiently serious to justify the bringing of an action": s 50D(1)(c). In other words, a plaintiff had to know that the defendant's conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action, absent appropriate legal and medical advice in respect of such matters." 1. Returning to the party's arguments, Beazley JA further summarised the State's position at [80] as requiring it only "to establish that the respondent knew the States act or omission was causative of loss" and that it "was not necessary for the plaintiff to know that the conduct was legally actionable." On the other hand, at [86] Her Honour pointed out that it was the respondent's position that "fault" for the purposes of section 50D(1)(b) "engaged the notion of legal actionability" but it was "not necessary that the plaintiff know what the cause of action was." Her Honour then stated that this submission "in effect, adopted the reasoning in Baker-Morrison…". 2. At [94] Beazley JA went on to accept the respondent's argument that the "fault" in question "was that of the defendant." In this regard at [90] Her Honour had noted the example postulated by the respondent of a defendant driving through a red light colliding with another car proceeding with a green light in its favour. In those circumstances, the respondent argued that the "ordinary layperson would be expected to know if the conduct of the driver was legally actionable." The respondent then contrasted that situation to where the identity of the driver of the vehicle that drove through the red light was unknown in which case the respondent contended that a person injured may know that the matter was legally actionable but not that it was legally actionable against the nominal defendant which would require "legal advice for the action to be discoverable against the nominal defendant." 3. After approving Basten JA's decision in Baker-Morrison, Beazley JA at [97] specifically agreed with the submission of senior counsel for the respondent that for the purposes of "fault" in section 50(d(1)(b), "a defendant had to establish the plaintiff knew the matter was legally actionable." Consideration 1. In the present matter, I am not satisfied that the first defendant has shown that the plaintiff knew that his injuries had been caused by its fault at any time up to 16.9.08 as understood within the authorities. 2. Whilst the plaintiff did know that he had fallen on liquid spilt on the floor, he did not know whether the first defendant was at "fault". In this regard, he did not know, for example, how long the liquid had been on the floor, whether the first defendant knew it was there, what, if any, cleaning system the first defendant had put in place and whether it could be regarded as reasonable in the circumstances and, if it could not, whether it could be said that the implementation of such a system would have avoided his injuries. 3. Further, it is clear on the evidence, that in the relevant period Mr Eggins was not prepared to give the plaintiff any advice as to whom may be at fault because in his mind he simply did not have enough evidence upon which to base that advice. 4. I am also not satisfied that the first defendant has shown that the plaintiff "ought to have known" that his injuries were caused by its fault within the relevant period. In this regard, I find that in the circumstances of this case and bearing in mind the plaintiff's level of intelligence, he took all reasonable steps by instructing Mr Eggins and thereafter participating in conferences and providing requested information. Further, even if it could be said that in the relevant period the plaintiff should himself have somehow obtained the incident report and the CCTV footage, neither, in my view, would have resulted in him ascertaining that his injuries were caused by the fault of the first defendant, absent legal advice. 5. Turning to the position with respect to the second defendant, I am also not satisfied that it has shown that the plaintiff ought to have been aware that his injuries were caused by its fault at any time up to 6.11.09 as understood within the authorities. 6. As mentioned by Beazley JA in Gillett, the "fault" in question must be "that of the defendant". 7. In the present matter, it is common ground the plaintiff was at all relevant times unaware that the first defendant had contracted its cleaning activities to the second defendant or, indeed, to anybody. Further, the evidence does not even establish that the plaintiff suspected this may have occurred. In those circumstances, there was simply no reason for him to ask "why aren't we suing the cleaner? In short, I find that this was not a reasonable step for him to take. 8. In addition, even if the plaintiff had asked this question of Mr Eggins or Mr Moffet, I am not satisfied that either, within the relevant period, would have advised him in such a fashion that he would thereby have ascertained that his injuries were caused by the fault of the second defendant. 9. In the circumstances of this matter and bearing in mind the plaintiff's level of intelligence, I also find with respect to the second defendant that he took all reasonable steps required of him to ascertain the relevant facts by instructing Mr Eggins and thereafter participating in conferences and supplying the requested information. 10. Accordingly, the plaintiff's action is "maintainable" within the meaning of s50C(1) as against both defendants. 11. It is therefore unnecessary for me to determine whether, within the relevant periods, the plaintiff knew or ought to have known, pursuant to s50D(1)(c), that his injuries were "sufficiently serious to justify the bringing of an action on the cause of action". However, in case my conclusions with respect to s50D(1)(b) are found to be wrong, I intend to deal with this issue briefly. 12. There is force in Mr Kalfass SC's arguments on this issue which are supported by the comments of Basten JA in Baker-Morrison and those of Beazley JA in Gillett at [70] referred to above. The plaintiff was throughout both relevant periods in continuing receipt of worker's compensation. In these circumstances, I accept Mr Kalfas SC's argument that to justify bringing an action under the CLA requires appropriate legal advice, which the plaintiff did not receive in such periods, as to whether doing so was in his best interests. To simply know that he had suffered a serious injury which had stopped him working is not enough. Further, there was no reasonable step that he could have taken by which he would have ascertained the relevant knowledge within the subject periods. Indeed, I would again have found that he took all reasonable steps required of him by instructing and co-operating with his lawyers. 13. Accordingly, if I had to determine the question, I would also have found that the neither defendant had established that the plaintiff knew or ought to have known the fact referred to in s50D(1)(c) within the relevant period. 14. Therefore, questions 1a. and 1b. are answered 'no'. 15. As agreed, the costs of the defendants' motion and the hearing of the separate question are to be the plaintiff's costs in the cause. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2015