Country Waste Systems Pty Ltd v Lauren Jane Wright

[2007] NSWDC 287

Reported Decision: 6 DCLR (NSW) 136

District Court

CITATION:	Country Waste Systems Pty Ltd v Lauren Jane Wright [2007] NSWDC 287
HEARING DATE(S):	20 July 2007, 23 July 2007
EX TEMPORE JUDGMENT DATE:	23 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Defence pleaded has not been made out; Defendant to pay plaintiff's costs of this application; Application under section 341 of the Legal Profession Act 2004 reserved for later consideration by trial judge; Matter remitted to Registrar at Albury
CATCHWORDS:	Plaintiff injured on 8 January 2004 - Proceedings commenced on 15 February 2007 - Seperate trial of issue raised by a defence under section 50C of Limitation Act 1969 - Held: action not statute barred as cause of action became discoverable to plaintiff on or about 15 September 2004 about which time (a) expert's report concerning liability was delivered to plaintiff's solicitor, and (b) plaintiff's disability commences to interfere with her working capacity - Consideration of the proper construction of Limitation Act 1969 section 50D(1)(b) - Dark v The Country Fire Authority (Stott CCJ, unreported, 21 June 2005, 4371 of 2004) - Ilardi v Forster [2006] VCC 793 - Caven v The Women's and Children's Health [2007] VSC 7 - Antonini v SRA (No 2) [2006] NSWDC 133 - Clark v Gerrard Signode Pty Ltd (Toner DCJ, unreported, 22 June 2007, 471 of 2006)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Dark v The Country Fire Authority (Stott CCJ, unreported, 21 June 2005, 4371 of 2004) Ilardi v Forster [2006] VCC 793 Caven v The Women's and Children's Health [2007] VSC 7 Antonini v SRA (No 2) [2006] NSWDC 133 Clark v Gerrard Signode Pty Ltd (Toner DCJ, unreported, 22 June 2007, 471 of 2006)
PARTIES:	Country Waste Systems Pty Ltd (Defendant / Applicant) Lauren Jane Wright (Plaintiff / Respondent)
FILE NUMBER(S):	2362/07
COUNSEL:	Chen (Defendant / Applicant) Stewart (Plaintiff / Respondent)

JUDGMENT

1 HIS HONOUR: The current application was commenced by a notice of motion filed on 29 May 2007. The first order sought in the notice of motion was this:

“The statement of claim be dismissed because the claim is barred by the operation of section 50C of the Limitation Act 1969”.

2 However, during the course of the hearing of the application, the notice of motion was amended, by consent, so that the first order sought is this:

“The issue tendered by paragraph 14 of the Defence filed on 6 March 2007 be tried separately and instanter”.

3 Essentially, the parties have agreed that the issue tendered by paragraph 14 of the Defence filed on 6 March 2007 be separately heard and determined on this application. The statement of claim was filed on 15 February 2007 at Albury.

4 Paragraph 2 of the statement of claim alleges an agreement between the plaintiff and the defendant “in or about 2003” that the defendant would, for reward, deliver to the plaintiff, at her residence in Deniliquin, a waste bin and would collect the waste bin when instructed to do so by the plaintiff after she had filled the waste bin with rubbish. That such a contract was made appears to be common ground.

5 The only issue is as to when the contract was made. The defendant’s case is that the plaintiff hired the waste bin on 7 January 2004. The waste bin was to contain three cubic metres of rubbish. The waste bin was delivered by the defendant to the plaintiff’s address at Deniliquin as the pleading discloses.

6 Paragraph 3 of the statement of claim alleges an implied term that the bin would be reasonably safe for the plaintiff to deposit waste material in it.

7 Paragraph 4 of the statement of claim is in the following terms:

“In breach of the said term, the bin had a dangerous latching mechanism on the lid. As the plaintiff was attempting to open the lid on or about 8 January 2004, it was caught by a gust of wind whereby the plaintiff’s left index finger was crushed between the lower part of the bracket and the underside of a collar running around the rim of the bin which contained a slot through which the bracket passed.”

8 The statement of claim goes on to allege a breach of contract, a breach of duty in the tort of negligence and breaches of implied conditions relating to merchantability and fitness for purpose under section 40Q of the Fair Trading Act 1987 and in the alternative under section 71 of the Trade Practices Act 1974 (Commonwealth).

9 The issue tendered by paragraph 14 of the defence filed on 6 March 2007 is this:

“The defendant further says that the plaintiff’s claim has been issued in excess of three years from the date of the post discoverability limitation period and the plaintiff’s claim is barred by reason of section 50C of the Limitation Act 1969”.

10 The essence of the case is whether the claim made by the plaintiff is statute barred. The injury is alleged to have occurred on 8 January 2004 and the evidence establishes that fact.

11 Three years from that date takes one to 8 January 2007. As I have earlier recited, the statement of claim was filed at Albury on 15 February 2007, some five weeks later.

12 Part 2, Division 6 of the Limitation Act 1969 commenced on 6 December 2002. This division was inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002.

13 Section 50A(2) makes it clear that Division 6 only applies to causes of action, “where the act or omission alleged to have resulted in the injury or death with which the claim is concerned” occurs on or after 6 December 2002. Accordingly, it applies to the current claim.

14 Section 50C(1) is in the following terms:

“(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 three year post discoverability limitation period, which is the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the twelve year long stop limitation period, which is the period of twelve years running from the time of the act or omission alleged to have resulted in the injury of death with which the claim is concerned.”

15 Section 50D bears a heading “Date cause or action is discoverable”. The first three subsections of that section are these:

“(1) For the purpose 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 the fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before the 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.”

16 It ought be noted that Part 3, Division 4 of the Limitation Act 1969 provides a mechanism whereby the long stop limitation period can be extended by a court. However, the New South Wales legislation does not permit a court to extend the three year post discoverability limitation period provided by section 50C(1)(a).

17 The major issue for my determination is the proper construction of section 50D(1)(b). On one view of it, the paragraph merely requires that the plaintiff know, or ought to know, that there was a causal nexus between the injury and the act or omission of the defendant. However, the significant thing about paragraph 50D(1)(b) is that it does not contain the matter “act or omission of the defendant” but contains the matter, “fault of the defendant”. There is some authority on the interpretation of section 50D(1)(b).

18 The first thing to note is that there are similar provisions in the Limitation of Actions Act 1958 of the State of Victoria. From section 27N of that statute the relevant provisions, namely, Part IIA applies to causes of action where the act or omission alleged to have resulted in the death or personal injury with which the action is concerned occurred on or after 21 May 2003. The part in question also applies to cause of action occurring before 21 May 2003 but only to such actions on and after 1 October 2003.

19 Accordingly, it can be seen that the Victorian provisions commenced after the New South Wales provisions and it may well be that the Victorian draftsman borrowed the New South Wales provisions, or they may have a common parent. I have not been able to ascertain which be correct.

20 Section 27D of the Victorian Act is comparable to section 50C of the New South Wales Act. Section 27F of the Victorian Act is in almost identical language to section 50D of our Act and it is important to note that section 27F(1)(b) is in identical terms to the New South Wales provision, namely section 50D(1)(b).

21 Section 27I of the Victorian Act is equivalent to section 50E of the New South Wales Act and section 27J of the Victorian Act is equivalent to section 50F of our Act.

22 However, it is important to note that section 27K of the Victorian Act provides a mechanism for the extension of either the three year post discoverability limitation period, or the twelve year long stop limitation period. The presence in the Victorian statute of a provision to extend the three year limitation period must be carefully considered because it may well have affected the way in which the Victorian courts have interpreted the equivalent of section 50D(1)(b).

23 The first matter to consider is the second reading speech for the introduction of the Civil Liability Amendment (Personal Responsibility) Bill in the Legislative Assembly of this State.

24 That second reading speech was made by the then Premier, Mr Carr, on 23 October 2002. The first statement in the speech is this:

“The introduction of this Bill today is a triumph for commonsense.”

Unfortunately, I do not believe it to have been a triumph of parliamentary draftsmanship. The relevant part of the speech is exiguous. It is this:

“The Ipp Report recommends that personal injury actions should not be brought more than three years after the date of ‘discoverability’. The new time period will run against every injured person, with three exceptions: First, if the person is a child or a disabled person without a capable parent or guardian to look after his or her interests; second, if an injury to a child was caused by a person in a close personal relationship with the child or the child’s parents; and third, if a child’s parents ‘irrationally’ fail to bring a claim on the injured child’s behalf. The new discoverability test should provide more certainty and limit applications for extensions of time.”

The current matter appears to negate the content of the Premier’s last sentence.

25 The Victorian equivalent of paragraph (b) was considered by his Honour Judge Stott in the County Court at Melbourne in Dark v The Country Fire Authority (unreported 21 June 2005, 4371 of 2004). Commencing at paragraph 3 his Honour said this:

“Here the plaintiff concedes that he knew or ought to have known the fact that personal injury had occurred and that it was sufficiently serious to justify the bringing of an action on the cause of action very soon after he experienced symptoms on 23 September 1998, and certainly by 13 November 1998 when he lodged a personal injury accident report form. The issue is, when was the fact that the personal injury was caused by the fault of the defendant discoverable? The plaintiff contends that it was not discoverable until 3 August 2004, when for the first time the plaintiff received a solicitor’s advice to the effect that he had a good cause of action at common law. The defendant contends it was 13 November 1998.

The language of section 27F(1)(b) is curious. It deals with the knowledge of the fact that the injury was caused by the fault of the defendant. That language is in stark contrast to the language in section 27D(1)(b) which fixes a limitation period of twelve years from the date of the act or omission alleged to have resulted in the personal injury. It is also different from the language used in section 5(1A) of the Act which fixes a limitation period of three years from the date on which the person first knows that those personal injuries were caused by the act or omission of some person.

The choice of language in section 27F(1)(b) must be taken to have been deliberate; the legislature choosing not to adopt the language the other sections refer to. Because of the use of different language, it would seem, at least at first blush, that authorities such as Mazzeo (2000) 3 VR 172 are of little help. In that case the Court of Appeal held that the limitation period began to run when the plaintiff acquired knowledge of the causal nexus between the injury and the act or omission of the prospective defendant, and that there was no additional requirement to be implied that the plaintiff also knew the prospective defendant’s act or omission was negligent.

Section 27F(1)(b) certainly preserves the concept of knowledge of a causal nexus with the injury, but the words used are, ‘caused by the fault of the defendant.’ Fault is not defined in the Act. Counsel were unable to point to any relevant authority to assist in the interpretation of this paragraph of the Act. The revised third edition of Macquarie Dictionary defines fault as ‘4. Delinquency, culpability, cause for blame’. If fault is equated to negligence, breach of statutory duty or other wrong doing certain intellectual difficulties arise. A plaintiff could not be said to know that his injury was caused by the negligence, breach of statutory duty or other wrong doing on the part of the defendant until a tribunal of fact so found. Until then his state of mind at best would be one of belief, so that when his solicitor first advised him that he had a good cause of action at common law, and the plaintiff accepted that opinion, his state of mind would still fall short of knowledge. It would remain a belief.

In Paget [2005] VSCA 144 the Court of Appeal was concerned with knowledge under section 135AC(b) of the Accident Compensation Act. Callaway JA with whom the other members of the court agreed, said at para 19:

‘Finally, it is to be remembered that the test is knowledge, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the appellant.’

The defendant submitted that the word ‘fault’ should be considered as referring to the defendant’s act which was causative of the plaintiff’s injury and that it should not be assumed that the cause of action would not accrue until such time as the injured plaintiff acquired knowledge that he had an actionable cause of action against the defendant which would blow out the limitation period considerably. I do not find that there is much force in the latter submission in view of the provisions of long stop limitation periods in section 27A and section 27D(b). The former submission has a seductive simplicity about it, as it relates to the concept of discoverability, not to the time at which the plaintiff knew that the defendant’s negligence or wrongful act or omission was a cause of his injury but the time at which he knew there was a causative link between the defendant’s conduct and the injury he suffered.

In the second reading speech of the Wrongs and Limitations of Actions Act (Insurance Reform) Bill the Premier said at page 1784 of Vic Hansard on 21 May 2003:

‘Under the Limitation of Actions Act 1958 the concept of discoverability only applies where the injury the subject of a claim for personal injury damages is a disease or disorder. The concept of discoverability recognises the difficulty faced by plaintiffs who have latent diseases or disorders in bringing claims within standard limitation periods. For other types of injuries the limitation period currently runs from the date injury is sustained. Part IIA will expand the concept of discoverability to all injuries and in a sense is more generous than the current limitation periods.’

This statement whilst explanatory of the purpose of the proposed sections does not assist in the question of interpretation. In each of sections 28B, 28LB and 28N of the Wrongs Act 1958 it is provided that, ‘Fault includes act or omission’. In the absence of the inclusion of any other words there is no warrant for requiring the act or omission there referred to be a wrongful or negligent act or omission. It seems to me that the effect of the decision in Mazzeo supra would apply by analogy to those sections referred to. In the absence of direct authority and the interests of consistency I accept the defendant’s submission and hold that the discoverability referred to in section 27F subsection 1 paragraph (b) relates to the time at which the plaintiff knew that there was a causative link between the defendant’s conduct and the injury he suffered.

In my opinion ‘fault’ in section 27F subsection 1 paragraph (b) means ‘act or omission’. If the plaintiff has knowledge of the causal nexus between the injury and the act or omission of the defendant the subparagraph is satisfied. Consistent with Mazzeo there is no additional requirement that the plaintiff also knew that the defendant’s act or omission was negligent or wrongful.”

However, his Honour went on to extend the limitation period under section 27K of the Victorian Act.

26 There is a second decision of his Honour Judge Stott in Ilardi v Forster [2006] VCC 793. At [16] of that judgment his Honour said this:

“The essential issue in this case concerns section 27F(1)(b), namely when did the plaintiff know or ought to have known that the injuries caused by the fault of Dr Forster. In Dark v The Country Fire Authority, unreported 21 June 2005, I held that the word ‘fault’ in that subsection meant act or omission and that the subsection was satisfied if the plaintiff knew or ought to have known of the causal nexus between the injury and the act or omission of the defendant, and that there was no additional requirement that the defendant also knew that the defendant’s act or omission was negligent or wrongful. The knowledge referred to is the personal or actual subjective knowledge of the plaintiff - see Smith v Brown [1974] VR 842, and Paget [2005] VSCA 144 at paragraph 19.”

In other words, his Honour was merely following his earlier decision in Dark v The Fire Country Authority but was now prepared to accept that the “knowledge” that the plaintiff has or ought to have is “subjective knowledge” which must be contrasted with “objective knowledge”. His Honour then went on to extend the limitation period under section 27K of the Victorian Act.

27 The decision of his Honour Judge Stott in Dark v The Country Fire Authority has been cited with approval by Kaye J in Caven & Anor v The Women’s and Children’s Health [2007] VSC 7. At para 56 his Honour said this:

“The Act does not define the term ‘fault’. In some other contexts, such as section 5(1A), it uses a different phrase, namely ‘act or omission’. It is arguable that the use of the different term ‘fault’ evinces a legislative intention that the plaintiff must know, or ought to know, not simply of the existence of the act or omission which caused the injury, but also that the injury was caused by a legal wrong. However, it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights. This matter was not argued before me. Mr Noonan submitted that I should adopt the construction of the term ‘fault’ in section 27F(1)(b) which was adopted by his Honour Judge Stott in the County Court in Dark v The Country Fire Authority and Ilardi v Forster. In those cases Judge Stott construed the word ‘fault’ to mean ‘act or omission’. Thus the discoverability referred to in section 27F(1)(b) was held by his Honour to relate to the time at which the plaintiff knew that there was a causative link between the defendant’s conduct and the injury he suffered. With respect I find the reasoning of his Honour to be sound and convincing. In the absence of argument to the contrary, for the purpose of these reasons, I shall adopt his Honour’s construction.”

As had his Honour Judge Stott in the earlier cases, Justice Kaye went on to extend the limitation period under section 27K of the Victorian statute.

28 The first thing to note about the Victorian decisions is that both the learned County Court Judge and the learned Supreme Court Judge were well aware of the well established legal principle that when statutes use different words, differing things are intended. It ought be clear from what I have cited from the New South Wales Act that the words “act or omission” appear in section 50A(2), section 50C(1)(b), as well as in numerous other sections of the Limitation Act, in particular section 60I.

29 If parliament wanted section 50D(1)(b) merely to relate to a knowledge of the causal nexus between the injury or death and the defendant’s conduct it could have and would have used the words “act or omission” which it uses in other places. However, parliament did not do so.

30 The second thing to note is that the Victorian judges were assisted by a second reading speech made by the Premier of the State of Victoria for which there is no equivalent in New South Wales. The next point to note is that there is no “Wrongs Act” in New South Wales and therefore no act in which “fault” is defined to include an act or omission. The nearest thing to the Victorian Wrongs Act would be the Civil Liability Act 2002 but the term “fault” does not appear in that act, as far as I have been able to ascertain and certainly there is no definition providing that fault means an act or omission.

31 Furthermore, I feel confident in stating that the learned judges in Victoria may have adopted a narrow interpretation of the word “fault” because of the generous provisions of s 27K of the Victorian statute.

32 I have had drawn to my attention two decisions of my colleagues. The first is that of Sidis J in Antonini v The SRA (No. 2) [2006] NSW DC 133. That was an ex tempore judgment. Her Honour does not appear to have had her attention directed to any authorities. At para 15 her Honour said this:

“The second of those facts causes some difficulty. She conceded, as I have already noted, that she believed at the outset that her injury was caused by the fault of the State Rail Authority. There is correspondence among the papers from the State Rail Authority which raises the suggestion that Mrs Antonini in fact tripped when she was leaving the train in question. I am not prepared to accept that the belief of an elderly passenger as to fault establishes that she knew as a fact that the State Rail Authority was at fault by 11 August 2003.”

It is implicit from what fell from her Honour that she considered the word “fault” to mean culpability and, in particular, legal culpability, not merely of the plaintiff’s needing to be aware of a causal nexus between her injury and the defendant’s conduct.

33 The other decision is that of Toner J in Clark v Gerrard Signode Pty Limited trading as Signode Steel Strapping Operation (unreported, 22 June 2007, 472 of 2006). His Honour was there concerned with an industrial accident that occurred on 7 April 2003. The facts of the case are summed-up by his Honour thus:

“The defendant is the manufacturer of steel straps. As I understand it, the raw material, which was broadly sheetmetal of some description, was hauled along a monorail on spools which were attached to the monorail by a hook. There was a safety latch on the hook to prevent the spools from falling from it. Apparently for some time prior to the accident the applicant and others had been warning the defendant of a fault in this safety mechanism.

On 7 April 2003 (the date of the accident) the applicant commenced work at about 6.30am. He and a co-worker, a Mr Darren Bastow, noticed that there was a fault in the safety device and brought that fact to the attention of supervisors for the defendant, including David Coleman and Doug Williams. I infer from his evidence that the spools being borne by the monorail arrived at frequent intervals, however, it would appear the process stopped for some short period of time when the report was made about the safety device. Apparently, according to the applicant, the supervisors of the defendant declined to stop the line to rectify the fault. Shortly after that a spool fell off the hook, which was attached to the monorail, and fell on the plaintiff’s right foot. Subsequently he was diagnosed with a compound fracture of toes of his right foot.”

34 The first claim for extension of the limitation period was made under s 60G of the Limitation Act 1969. His Honour held that that provision was still available to a plaintiff, even though the injury had occurred on or after 6 December 2002. With great respect to his Honour, I cannot agree.

35 As I have said, s 50A of the Act provides that Part 2 Division 6 of the Act applies to causes of action where the act or omission alleged to have resulted in the injury or death occurs on or after 6 December 2002. Part 3 Division 3 Subdivision 1 of the Limitation Act commences with s 57. The first two sections of Subdivision 1 are these:

“57 Purpose of this Subdivision

The purpose of this subdivision is to provide a procedure for the extension of limitation periods, based on the belated discovery of material facts. This procedure was established by this division as originally enacted, but is retained only for the causes of action that accrue before 1 September 1990.

57A This Subdivision applies only to old causes of action

This subdivision applies only to causes of action that accrued before 1 September 1990.”

36 Part 3 Division 3 Subdivision 2 commences at s 60A. The first two sections of that subdivision are these:

“60A Purpose of this Subdivision

The purpose of this Subdivision is to provide a procedure for a five year (maximum) extension of the three year limitation period for personal injury cases. It applies to causes of action that accrue on or after 1 September 1990. This subdivision does not apply to a cause of action to which Division 6 of Part 2 applies.

60B Subdivision applies only to new causes of action

This subdivision applies only to causes of action that accrue on or after 1 September 1990. This subdivision does not apply to a cause of action to which Division 6 of Part 2 applies.”

Clearly Part 3 Division 3 Subdivision 2 does not apply to causes of action arising on or after 6 December 2002.

37 Part 3 Division 3 Subdivision 3 commences at section 60F. That provides this:

“The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990 and also (by the operation of Schedule 5) for causes of action that accrued before that time.”

Section 60G, of course, is part of Subdivision 3.

38 The scheme of the Act is clear. For causes of action accruing on or after 6 December 2002 one applies Part 2 Division 6. For causes of action that accrue before 1 September 1990 one applies Part 3 Division 3 Subdivision 1. For causes of action accruing between 1 September 1990 and 5 December 2002 one applies Part 3 Division 3 Subdivision 2. The purpose of Part 3 Division 3 Subdivision 3 is to enable an extension of the limitation periods provided by Subdivision 1 and Subdivision 2. It is not to extend a limitation period under Part 2 Division 6.

39 The interpretation which his Honour adopted, based on case law relating to headings and the like and certain other considerations, negates the adjective in the first sentence of s 60F, namely the word “further”, when referring to “a further discretionary extension of limitation periods”.

40 However, in case he were wrong, his Honour went on to consider s 50D. His Honour spent some time in discussing the interaction of the provisions of the Civil Liability Act 2002 relating to the ascertainment of the quantum of damages and the provisions of the Legal Professional Act 2004 s 347. His Honour referred to my decisions of Momibo Pty Limited v Marsden (2004) 2 DDCR 193, and to Degeorgio v Dunn (No 2) [2005] NSWSC 3, where Barrett J cited my decision with approval. My decision concerned the interpretation of the former statute, the Legal Profession Act 1987. However, the same sections are enacted, commencing at s 344 in the Legal Profession Act 2004.

41 The giving by a solicitor of a certificate under the Legal Profession Act relates only to there being reasonable prospects of success of recovering “damages”. The damages can be, as has been pointed out, nominal. A solicitor does not have to certify to the quantum of damages which is being sought or which may be recovered. The provisions of the Legal Profession Act do not assist in any question either of statutory interpretation or in determining when the limitation period commences to run under s 50D.

42 Finally, it should be noted that his Honour did accept that the plaintiff was justified in delaying the commencement of proceedings by reason of the fact that he did not consider his injury as sufficiently serious to justify the bringing of an action until some time after the expiration of the three years from the date of the defendant’s act or omission.

43 Finally, I should say in answer to his Honour’s reliance upon the provisions of s 60G of the Limitation Act 1969 his Honour ought to have applied the principle of construction that expressio unius, exclusio alterius. When the Limitation Act makes certain provisions for causes of action arising on or after 6 December 2005 those provisions must be applied to the exclusion of the earlier provisions which cover a limited period of time.

44 Clearly the provisions of s 50D requires the plaintiff to have knowledge or requires that the plaintiff ought have knowledge. That is the implication to be drawn from subsections 1 to 3 of s 50D.

45 In Halford v Brookes [1991] 1WLR428, Lord Donaldson of Lymington MR said in relation to the question of knowledge at 433:

“The word has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond a possibility of contradiction.’ It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal or other advice and collecting evidence”.

46 In Dark v Country Fire Authority, His Honour Judge Stott referred to the “intellectual difficulties” that arise when the section speaks of having knowledge of facts, however, it is clear from what fell from Lord Donaldson MR that such does not require certain knowledge or knowledge beyond contradiction. Furthermore, as his Honour Judge Stott admitted in Ilardi, the knowledge is the subject of knowledge of the plaintiff.

47 Those formulations countermand somewhat the “intellectual difficulties” that arise when considering the word “fault” in section 50D(1)(b). On a consideration of all this material, I have come to the view that I must, with unfeigned respect to the learned judges in Victoria, decline to construe the word “fault” as meaning “act or omission”. If parliament had intended that, parliament could have said that. It did not. The juxtaposition of the word “fault” in s 50D(1)(b) must be contrasted with the provisions of s 50C(1)(b) which refers to the “act or omission” alleged to have caused the injury or death in question.

48 In my view, section 50D(1)(b) requires two things of a plaintiff. Firstly, a knowledge of the causal nexus between the injury or death and the defendant’s conduct and, secondly, knowledge by the plaintiff of the culpability of the defendant for the injury or death. In using the word “culpability”, I do not mean, for example, that the plaintiff must know whether his or her cause of action is in negligence, nuisance, trespass, breach of statutory duty or however otherwise it might arise, but I mean that there is some form of culpability which the law recognises. Clearly, her Honour Judge Sidis in Antonini seemed to adopt that view.

49 I realise that there are some difficulties in interpretation which I have adopted. The section requires a plaintiff to know or ought to know about the occurrence of the injury, the relationship between the injury and the defendant’s conduct, that the defendant’s conduct was legally culpable and that the injury was sufficiently serious to justify the bringing of the cause of action. The difficulty of it depends, in part, upon the use of the word “facts”.

50 How does a plaintiff know the fact of the defendant’s culpability? That is easily done if the liability is admitted by the defendant. However, often there are contested cases which is why the courts exist. On one view of it, one might only know of the fact of culpability once it has been determined by a court or on appeal. However, to interpret the Act to be that rigorous would negate the purpose of the limitation provisions. I construe the word “facts” occurring in the first part of subsection 1 of s 50D to mean really the word “things” or the word could, indeed, be omitted. That is, it could be read as if the person knows or ought to know “each of the following:”.

51 In my view, s 50D(1)(b) requires the plaintiff to know or requires that the plaintiff ought to know that his or her injury is causally related to the defendant’s conduct and that the conduct is legally culpable. It does not require certitude. It merely requires a belief which is reasonable that the defendant’s conduct has been legally culpable.

52 I turn now to the facts of the current matter. The plaintiff submits that her cause of action was not discoverable until some time after the injury occurred because the plaintiff was unaware of the “fault of the defendant” until later and, furthermore, because the plaintiff did not know that her injury was sufficiently serious to justify the bringing of an action until much later than the time of its occurrence 8 January 2004.

53 The waste bin in question was a large metal, oblong box. The box had a lid on each half. The lids appear to have been made of heavy duty plastic. Each lid was attached to the box by a hinge at the back of it. On the side of each lid next to the outer edge of the oblong, metal box there was an arm attached to the lid which could be used to hold up the lid. The arm was a length of metal which had a number of indentations in it which indentations were supposed to rest onto a bracket on the side of the metal wall of the bin.

54 What was supposed to have been the case is shown on photograph 4-4(6). However, on the bin delivered to the plaintiff, the bracket to hold the arm was missing. As a result, to prop up the lid to hold it open it is necessary to push the arm through past where the bracket was so that the indentations in the arm would rest on the lip, edge or flange of the top of the metal bin. That would raise the bin lid higher than it was supposed to be raised and could enable the potential for the lid to be caught by the wind to be increased.

55 At the bottom end of the metal arm was a metal lug which protruded sufficiently to prevent the metal arm going through the hole in the lip, edge or flange of the bin such that the lid of the bin could not turn through 270 degrees to lay flat against the back of the bin. However, the missing bracket allowed a pinch point to develop between the lug and the underside of the lip, edge or flange of the bin. When the plaintiff was using the bin, its lid was caught by wind and her left index finger was caught in that pinch point, caught between the lug and the underside of the lip, edge or flange of the top of the bin.

56 The plaintiff always accepted that this accident was not her fault. She always blamed the defendant for it. However, that is common human behaviour at the current time. If something unexpected happens to a person, a person does not accept that it is due to any act or default of their own but rather that somebody else is responsible for it. However, the reality of life is that accidents do occur and misfortunes can befall someone without there being any culpable person.

57 For example, many years ago a person in the position of the plaintiff might have thought that it was their own fault for letting their finger to be in a position where it could be caught in the pinch point. The law adjusts these attitudes by having a law of negligence with a principle of contributory negligence. However, merely because a plaintiff believes that he or she is not at fault and the defendant is, is not sufficient, in my view, to establish legal culpability.

58 The question is, when ought the plaintiff have been aware of legal culpability? In my view, that can only occur either if a plaintiff is aware of legal culpability through some expertise or training or has been advised of that by somebody with expertise or training. For example, if the fault, in question, was fault for the cause of a motor vehicle accident, most experienced motorists could form a view about that. One would not need to call upon a lawyer. Equally, one can accept that there are many sorts of occupations where one has developed expertise which might help to ascertain “fault”, for example, an insurance loss adjustor, a policeman. There are many such experts or quasi-experts.

59 Here, the plaintiff related her instructions to a Victorian lawyer on 16 January 2004. On that day, the solicitor, Mr Ian Ritchie, wrote a letter to the defendant recounting his instructions and asking whether the defendant had advised its public liability insurer. On the same date the solicitor, Mr Ritchie, wrote to the plaintiff. In the second paragraph of that letter, Mr Ritchie advised the plaintiff that it was too early to assess the potential to bring a claim for damages as a result of her injury. He referred to the need to reach certain impairment thresholds. On the question of liability, Mr Ritchie said this:

“As advised, it will be sensible for you to try to obtain some independent evidence as to the fact that the ‘safety lug’ was broken off the bin support. If you ultimately do have a claim for pain and suffering damages, it is necessary for you to establish that your injury occurred because of a defect in the bin for which Country Waste Systems was responsible. An assessment by a qualified engineer would be most helpful. You should also have your digital photos processed to ensure that they clearly show the missing lug.”

Mr Ritchie did not hear anything from the defendant within a month and on 18 February 2004, wrote to the plaintiff, a letter suggesting that she consult solicitors in Albury who were New South Wales practitioners, as they would be better able to assist her.

60 Mr Ritchie did receive a letter from a firm of loss adjustors acting for the defendant on 9 March 2004, in which they merely stated that the claim was being investigated and asked that medical reports be forwarded to them. Mr Ritchie sent a copy of that letter to the plaintiff asking the plaintiff whether he ought send a copy of it to the plaintiff’s New South Wales solicitor.

61 The plaintiff made contact with Messrs Belbridge Hague on 27 February 2004. The plaintiff completed her retainer with that firm on 5 April 2004 when she returned a costs agreement which had been sent to her on 5 March 2004.

62 On 27 July 2004 the loss adjustors for the defendant wrote to the plaintiff’s solicitors. The second paragraph of that letter states that it was the belief of the defendant that the bracket was not missing when the bin was delivered to the plaintiff. The letter continues thus in the third paragraph:

“Even if the bracket were missing, its presence would not have stopped the incident occurring. Its purpose is to stop the lid from falling down not being flipped back.”

The letter went on to decline liability “formally”. That letter was received by the plaintiff’s solicitors on 30 July 2004.

63 The plaintiff phoned her solicitors on 10 August 2004 and spoke with Ms Coombe, solicitor employed by that firm. On 13 August 2004 the plaintiff also spoke with Mr Simpson, who I understand to be the principal of the firm. On 8 September 2004 the plaintiff attended the offices of her solicitor and had a conference with Mr Simpson and with an engineer, Mr Lightfoot. The plaintiff understood that Mr Lightfoot was going to prepare a report about the accident and the condition of the hire bin. The plaintiff’s affidavit continues:

“I understood that this was necessary to establish the reason for the accident and whether or not I could pursue a claim.”

64 The engineer, Mr Lightfoot, provided a report to the plaintiff’s solicitors on 14 September 2004. The final two parts of Mr Lightfoot’s report are these:

“It was evident that the nature of the bracing of the lid was such that any rapid movement of this brace made it possible for a person’s hand to be caught by the pin [which I have referred to as ‘lug’] on the end of the brace that prevented the lid from opening fully and laying horizontal. The writer believes that for the bin lid and brace system to be safe it was necessary to ensure that a person’s hand did not go directly on the brace. Alternatively, a piece of steel rod could have been welded on the side of the brace by way of a handgrip such that it provided clearance of the hand when the lid was opened.

The writer believes that the bin in the condition which was left with your client was not safe. An essential bracing strap was missing. Bracing provided was inadequate. A person lifting the front of the lid and attempting to control and put the brace in place was exposed to the risk of injury if the lid was caught by a gust of wind and rotated rapidly and causing the brace to hit against the underside of the perimeter of steel around the top of the bin.

It would appear that there was a lack of adequate maintenance and a lack of suitable design of the bracing arrangement, the risk existed that the person’s hand could be caught and significant injury resulted [sic].

If a suitable brace had been provided with handgrip and positioned clear of the perimeter of the bin this would have removed the risk of injury to your client.”

To put not a fine point upon it the opinion of Mr Lightfoot clearly was that the bin hired to the plaintiff with the bracket missing was unsafe and at the minimum there was a lack of adequate maintenance and that there was a risk which was clearly foreseeable of there being an injury to a plaintiff’s hand. In my view that was sufficient knowledge for a plaintiff to know that there was legal culpability in the defendant.

65 It is not clear when, if at all, that opinion was provided to the plaintiff. Clearly there was delay beyond that time. But that delay appears to be more concerned about the question of the quantum of damages.

66 At the time that that report was delivered to the plaintiff’s solicitor the plaintiff, through her solicitor, became aware of legal culpability. In my view one can say that the relevant facts for the purpose of section 50D(1)(b) were known to the plaintiff within a few days of 14 September 2004.

67 In this matter it is of little moment whether it was one day, three days or five days. In my view time did not start running under section 50D(1)(b) until on or about 15 September 2004.

68 I turn now to the plaintiff’s allegation that time did not start to run under section 50D(1)(c) until some time long after the accident.

69 The accident, as I see it, occurred on 8 January 2004. X-ray was performed on that day by Dr James Wong at the request of Dr Liebenberg. Dr Wong practiced at the Deniliquin Hospital. Dr Wong noted a comminuted avulsed fracture of the terminal tuft of the left index finger. However the fracture avoided the interphalangeal joint.

70 Dr Liebenberg practices at the Deniliquin Clinic in Deniliquin. On 12 January 2004 the plaintiff was referred by Dr Liebenberg to an orthopaedic surgeon in Melbourne. The referral note contained in Exhibit 5-5 does not identify the orthopaedic surgeon, but I know from a subsequent medical history that it was Dr David McCombe.

71 However, a letter from a Dr Sendecki of the Cohuna Clinic at Cohuna in Victoria, suggests that it was Dr Sendecki who referred the plaintiff on to Dr McCombe. However, Dr Sendecki refers to Dr McCombe as being a plastic surgeon, whereas other evidence suggests that he is in fact a hand surgeon.

72 The history accorded by Dr Kenneth Brearley, who saw the plaintiff on 24 March 2005, says that after the plaintiff was referred to Dr McCombe a plastic splint was made for her which the plaintiff wore for several weeks. Dr McCombe told the plaintiff that an operation was not indicated.

73 In June 2004 the plaintiff obtained a second opinion Dr Anthony McDonnell, a plastic surgeon at Geelong. Dr McDonnell advised non-operative treatment and did not prescribe any further treatment. It would appear the plaintiff’s treatment ceased in June 2004.

74 At the time of the cessation of treatment one can infer that the plaintiff’s condition had stabilised and that no further assistance could be rendered to her by the medical profession. Symptoms were persisting at that time so the plaintiff could have accepted that her symptoms might persist indefinitely.

75 However, we are still only talking about a partial fracture of the distal phalanx of the plaintiff’s left index finger and it is noted that the plaintiff is right hand dominant.

76 When Dr Brearley examined the plaintiff on 24 March 2005 he noted that there was a deformity of the distal phalanx of the plaintiff’s left index finger with radial deviation of the terminal phalanx. He thought that there was a slight mallet finger deformity of the distal phalanx of twenty degrees. He noticed a curved two-centimetre scar along the ulna side for the pulp of the finger extending from the palmar surface to the nail. However, there was full range of movements of both the metacarpophalangeal joint and the interphalangeal joints. There was a marked reduction of sensation over the pulp of the plaintiff’s left index finger.

77 The plaintiff has a relatively minor objective disability ongoing. There is also clearly some cosmetic deformity. The plaintiff was born on 20 August 1982. At the time the injury occurred she was twenty-one. She is still a relatively young woman. A cosmetic deformity for a young woman is an important thing.

78 However, greater significance, in my view, are facts relating to another potential head of damages. At the time of the injury in question the plaintiff and her fiancé were renovating the house. It was for the purposes of renovating the house in which they lived that the waste bin was hired from the defendant. At the same time the plaintiff was doing part time work as a community carer for about ten hours per week.

79 Dr Brearley’s report contains this further history:

“In March 2004 she resumed her nurse training degree of which she had done two years previously. She did the course for about six months but she found it was becoming increasingly difficult to do the physical work because of the pain she had in the left index finger and she finally had to leave the course. She doubts that she’ll be able to finish the few months left in the course because of the condition of her finger.

Thereafter she took a part time job as a personal carer in a nursing home in Deniliquin which she is still doing.”

80 In other words, if that history be correct, and the plaintiff does have problems with performing the full work of a nurse such that she can no longer finish her nursing degree and obtain a qualification as a registered nurse there is major scope for her recovering damages for loss of earning capacity into the future.

81 Furthermore, the loss of the ability to complete her nursing degree may well increase the quantum of damages for pain and suffering and the like because of the adverse affect on the plaintiff’s psyche.

82 Six months from March 2004 takes one again into September 2004. In my view it was only when the plaintiff’s injury interfered with her earning capacity that the plaintiff acquired or ought to have acquired knowledge of the fact that the injury was sufficiently serious to justify the bringing of an action for damages resulting from the injury which she had sustained. In other words I accept that also in September 2004 did the plaintiff become aware of the facts referred to in section 50D(1)(c).

83 Accordingly the plaintiff’s cause of action became discoverable by her on or about 15 September 2004. The three-year limitation period provided by section 50C(1)(a) only ran from September 2004. As these proceedings were commenced by statement of claim filed on 15 February 2007 they were filed within the three-year period provided for by section 50C(1)(a).

84 Accordingly I find that the defence pleaded in paragraph 14 of the notice of grounds of defence filed on 6 March 2007 has not been made out.

85 I cannot dismiss the motion because I made a ruling on it. I order the defendant to pay the plaintiff’s costs of this application.

86 I note the application under section 341 of the Legal Profession Act 2004 which I reserve for later consideration by either me or the trial judge.

87 Matter remitted to the Registrar at Albury.

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