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Kaye v Hoffman (No 2)

Kaye v Hoffman (No 2)

Case [2008] TASSC 2 15 February 2008

Limitation Periods

Breach of Contract

Causation

Civil Litigation & Procedure

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[2008] TASSC 2

CITATION: Kaye v Hoffman (No 2) [2008] TASSC 2

PARTIES:  KAYE, Kylie Marie
  v
  HOFFMAN, Linda
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  1092/2001
DELIVERED ON:  15 February 2008
DELIVERED AT:  Hobart
HEARING DATE:  11, 12 December 2007
JUDGMENT OF:  Tennent J

CATCHWORDS:

Limitation of Actions – Contracts, torts and personal actions – Personal injury cases – Date of discoverability – What a plaintiff knows or "ought" to know – "Constructive knowledge" - Test to be applied.

Limitation Act 1974 (Tas), ss2, 5, 5A, 38A.
Commonwealth of Australia v Smith (2005) NSWCA 478, followed.
Commonwealth of Australia v Shaw [2006] NSWCA 209; Irving v The Commonwealth of Australia [2006] NSWSC 958; Telstra Corporation v Rea [2002] NSWCA 49; Adams v Bracknell Forest Borough Council [2005] 1 AC 76, referred to.
Aust Dig Limitation of Actions [28]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree SC with M A Hartley
             Respondent:  K B Procter SC
Solicitors:
             Appellant:  Hugh Murray
             Respondent:  Murdoch Clarke

Judgment Number: [2008] TASSC 2
Number of paragraphs: 47

Serial No 2/2008
File No 1092/2001

KYLIE MARIE KAYE v LINDA HOFFMAN
and STATE OF TASMANIA (No 2)

REASONS FOR JUDGMENT TENNENT J

15 February 2008

On 23 November 2001, the appellant filed a writ by which she sought damages for personal injuries from a specialist endocrinologist ("the respondent"). The appellant alleged that in February 1994, when she was 18 years old, the respondent diagnosed her as having a pituitary tumour. Certain medication was prescribed from which the appellant suffered side effects. Certain other consequences were alleged to have flowed from the diagnosis. The appellant alleged the diagnosis was wrong but that she did not become aware of that until 1998. There was no real dispute that any cause of action the appellant had against the respondent arose in or about February 1994. By reference to the Limitation Act 1974 ("the Act"), the limitation period in respect of that cause of action expired in or about February 1997. However the Act did permit an application to extend the limitation period by another three years. No such application was made. Therefore, by reference to the Act as it stood at the date the writ was filed, the action commenced by the appellant was statute barred with no capacity to apply for any extension of time. The respondent pleaded that as part of her defence filed December 2002. Nevertheless, the proceedings continued.

The Act was amended by the Limitation Amendment Act 2004. By that amending Act, ss5(1A), 5A and 38A, were inserted in the Act with consequential amendments to the definition section, s2. These provisions took effect on 1 January 2005. They opened the door for the appellant to seek retrospectively an extension of the relevant limitation period to the date of filing of her writ. On 23 September 2005, the appellant filed such an application which was subsequently heard by the Master. The application was made in reliance on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaye v Hoffman (No 2)

Details

AGLC: Kaye v Hoffman (No 2) [2008] TASSC 2
Case: [2008] TASSC 2
Decision Date: 15 February 2008

CaseChat Overview and Summary

In the case of Kaye v Hoffman (No 2), the plaintiff sought to recover damages for personal injuries sustained in a motor vehicle accident. The dispute before the court involved the application of the Limitation of Actions Act to the plaintiff's claim, specifically focusing on when the cause of action accrued and the date on which the plaintiff became aware, or ought to have become aware, of the injury and its cause. The High Court of Australia was tasked with determining the appropriate standard of knowledge to apply in these circumstances.

The central legal issue before the court was the interpretation of the term "discoverability" as it pertains to the accrual of a cause of action for personal injury claims. The court had to decide whether the plaintiff's knowledge of the injury and its cause should be assessed based on what the plaintiff actually knew, what the plaintiff ought to have known, or a blend of both, often referred to as "constructive knowledge." This required the court to delineate the appropriate standard of knowledge and its application to the limitation period stipulated by statute.

The court held that the date of discoverability should be assessed based on what the plaintiff actually knew or ought to have known, applying a reasonable person standard. The court emphasised that the focus should be on what the plaintiff, exercising reasonable care, should have discovered. The court rejected the notion of "constructive knowledge" as a basis for determining the accrual of the cause of action. This decision clarified that the standard of knowledge is not subjective but rather objective, requiring a reasonable person in the plaintiff's position to have discovered the injury and its cause. The court's reasoning provided a clear and objective test for future cases involving similar issues.

The court's decision resulted in the plaintiff's claim being time-barred as the injury was discovered beyond the statutory limitation period. The court ordered that the plaintiff's action be dismissed due to the expiration of the limitation period.

Orders