Pomare v Whyte

In *Pomare v Whyte*, the Court of Appeal of New South Wales considered an appeal concerning the discoverability of a cause of action for personal injury under the *Limitation Act 1969* (NSW). The dispute centred on whether the plaintiff had sufficient knowledge of the defendant's fault by a particular date to trigger the limitation period.

The primary legal issue before the Court was whether the plaintiff knew, or ought to have known, that his injuries were caused by the fault of the second defendant by the relevant date. This required the Court to determine the meaning of "fault" for the purposes of section 50D(1)(b) of the *Limitation Act 1969* (NSW), specifically whether knowledge of a breach of duty and its causal link to the injury could be established without legal advice, and to distinguish between knowledge of a fact and a belief about a fact.

The Court reasoned that for the purposes of the discoverability provisions, the plaintiff must have known the *fact* that his injuries were caused by the defendant's fault. This knowledge does not require the plaintiff to have obtained legal advice or to have formed a definitive legal conclusion about a breach of duty or causation. Instead, it requires knowledge of the underlying facts that would lead a reasonable person to conclude that the defendant's conduct was at fault and caused the injury. The Court found that the second defendant had not established that the plaintiff possessed this requisite knowledge prior to 15 May 2014.

Consequently, the Court of Appeal allowed the appeal, setting aside the previous orders that had determined the separate question in favour of the second defendant and dismissed the proceedings. The Court answered the separate question in favour of the plaintiff, finding that the second defendant had not proven the plaintiff knew or ought to have known of the fault by the relevant date. The Court also made orders regarding the costs of the proceedings.