Pomare v Whyte [2019] NSWCA 317

Pomare v Whyte [2019] NSWCA 317

On the evidence, the second defendant (Mr Whyte) did not establish that before 15 May 2014, Mr Pomare knew or ought to have known the facts necessary to amount to knowledge that his injuries were caused by the fault of Mr Whyte for limitation purposes under s 50D(1)(b) of the Limitation Act 1969 (NSW); thus, the limitation defence failed and the appeal was allowed.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed (majority); orders below set aside; separate question answered in favour of appellant; costs as ordered.
Legal Topics
['discoverability' 'knowledge of Fault' 'limitation Periods' 'negligence' 'breach of Duty' 'legal Advice as a Reasonable Step']
['limitation of Actions' 'personal Injury'] ['discoverability' 'knowledge of Fault' 'limitation Periods' 'negligence' 'breach of Duty' 'legal Advice as a Reasonable Step']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the plaintiff knew or ought to have known prior to 15 May 2014 that his injuries were caused by the fault of the second defendant for limitation purposes under Limitation Act 1969 (NSW), s 50D(1)(b)' 'Whether knowledge of fault for limitation purposes requires the benefit of legal advice or an evaluative judgment' 'Whether the facts known established actionable negligence or fault on the part of the defendant']

Ratio Decidendi

On the evidence, the second defendant (Mr Whyte) did not establish that before 15 May 2014, Mr Pomare knew or ought to have known the facts necessary to amount to knowledge that his injuries were caused by the fault of Mr Whyte for limitation purposes under s 50D(1)(b) of the Limitation Act 1969 (NSW); thus, the limitation defence failed and the appeal was allowed.

Court Disposition

Appeal allowed (majority); orders below set aside; separate question answered in favour of appellant; costs as ordered.

Orders

  • ['Allow the appeal and set aside orders (1) and (2) made on 3 May 2019 in the Common Law Division, with respect to the determination of the separate question.' 'Set aside orders (1) and (2) made on 17 May 2019 dismissing the proceedings and as to costs.' "Answer the separate question: 'Did the plaintiff know or...