Murgolo v AAI Ltd t/as AAMI

In *Murgolo v AAI Ltd t/as AAMI*, the New South Wales Court of Appeal considered an appeal from an order of the Supreme Court of New South Wales that had summarily dismissed the appellant's personal injury claim on the basis that it was out of time. The dispute concerned the application of the Limitation Act 1969 (NSW) to a claim for damages for personal injury, specifically when the cause of action was deemed "discoverable" and when the plaintiff was considered to "know" that the injury was "caused by the fault of the defendant".

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that there were no triable issues of fact or law regarding the discoverability of the cause of action, and consequently, whether the claim was appropriately subject to summary disposal. This involved an examination of the sufficiency of knowledge required for a plaintiff to be deemed aware that their injury was caused by the defendant's fault, particularly when that knowledge might be based on incomplete information.

The Court of Appeal reasoned that the determination of when a plaintiff "knows" their injury was caused by the fault of the defendant, as contemplated by sections 50C and 50D of the Limitation Act 1969 (NSW), often involves questions of fact that are not suitable for summary determination. The Court held that the primary judge had incorrectly concluded that the appellant's knowledge was sufficient to establish that the cause of action was discoverable at a point in time that would render the claim statute-barred. The Court emphasised that the statutory test for discoverability requires more than mere suspicion or a general awareness of a potential problem; it requires a sufficient degree of knowledge about the causal link between the defendant's fault and the injury.

Consequently, the Court of Appeal allowed the appeal, setting aside the summary dismissal order and dismissing the respondent's notice of motion. The respondent was ordered to pay the appellant's costs of the motion in the Supreme Court and the costs of the appeal in the Court of Appeal.