Rutter v New South Wales

This case involved an appeal to the New South Wales Court of Appeal concerning an application for an extension of time to commence proceedings under section 60C of the *Limitation Act 1969* (NSW). The appellant, Mr Rutter, sought to extend the limitation period for causes of action that accrued on or after 12 March 1995, against the respondent, New South Wales. The primary judge had refused the application for an extension of time.

The central legal issue before the Court of Appeal was whether the primary judge had erred in determining that the appellant had not demonstrated a reasonable prospect of success at a final hearing. Specifically, the court had to consider the correct approach to assessing causation and the evidence required to satisfy the "just and reasonable" threshold under section 60C(2) of the *Limitation Act*. This involved determining whether the appellant needed to prove his cause of action on a final basis or merely demonstrate that there was evidence to establish a reasonable prospect of success.

The Court of Appeal reasoned that section 60C of the *Limitation Act* does not require a plaintiff to establish that there is evidence to prove the cause of action in the same way as at a final trial. Instead, the applicant must prove facts from which the court can be satisfied that there is a reasonable prospect of success. The court noted that the appellant's cause of action in negligence was complete upon suffering measurable loss or damage, and time commenced to run from the accrual of that damage, regardless of awareness. The court found that the primary judge had not adequately appreciated the evidence, including reports from Dr Klug and Ms Walker, which supported the appellant's contention that the onset of his psychiatric condition could be traced to around March 1995 and was work-related. This evidence was considered sufficient to demonstrate reasonable prospects of establishing at a final trial that the condition arose around March 1995 and was attributable to the respondent's breach of duty.

Consequently, the Court of Appeal allowed the appeal, set aside the order refusing the extension of time, and extended the limitation period for the appellant's causes of action accruing on and after 12 March 1995, to 21 December 2002. The respondent was ordered to pay the costs of the appeal.