Pomare v Whyte [2019] NSWCA 317

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pomare v Whyte [2019] NSWCA 317 Hearing dates: 12 November 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Before: Basten JA at [1]; Macfarlan JA at [63]; Emmett AJA at [69] Decision: 1. Allow the appeal and set aside orders (1) and (2) made on 3 May 2019 in the Common Law Division, with respect to the determination of the separate question.

2. Set aside orders (1) and (2) made on 17 May 2019 dismissing the proceedings and as to costs.

3. Answer the separate question as follows:

"Question: Did the plaintiff know or ought he to have known of the fact that his injuries were caused by the fault of the second defendant by the relevant date?

Answer: The second defendant did not establish that the plaintiff knew or ought to have known prior to 15 May 2014 the fact that his injuries were caused by the fault of the second defendant."

4. Order that the second defendant (Angus Whyte) pay the plaintiff's costs of the motion in the Common Law Division.

5. Order that the first respondent (Angus Whyte) pay the costs of the appellant in this Court.

6. Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether "fault" for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to "belief" of fact – Time to assess knowledge of fact. Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW) Motor Accidents Compensation Act 1999 (NSW)