Baggs v University of Sydney Union

The applicant, Ms. Baggs, appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had held that her claim against the respondent, the University of Sydney Union, was out of time. Ms. Baggs had suffered injuries from a fall down a stairwell. She initially believed her employer and the respondent were the same legal entity, and that her employer occupied and controlled the building where the incident occurred. In fact, the respondent was the occupier of the building, which was owned by her employer, and had care and control of the stairwell.

The central legal issue before the Court of Appeal was whether Ms. Baggs knew, or ought to have known, the identity of the respondent as the occupier with care and control of the stairwell within the period prescribed by section 50D(1)(b) of the *Limitation Act 1969* (NSW). This section provides for an extension of the limitation period if the identity of the defendant was not known, and could not with reasonable diligence have been ascertained, until a date within three years before the commencement of the proceedings. The primary judge had found that Ms. Baggs had not satisfied this requirement.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in holding that the claim was brought outside the three-year post-discoverability limitation period. The Court reasoned that Ms. Baggs' mistaken belief about the separate legal identities and the respondent's control over the stairwell was a reasonable one in the circumstances. The Court concluded that she had not failed to exercise reasonable diligence in ascertaining the respondent's identity as the occupier responsible for the stairwell. Consequently, the Court set aside the orders of the primary judge and dismissed the respondent's notice of motion seeking to have the claim struck out.