Tolmie v Stockland Trust Management Limited [2009] NSWDC 283

Tolmie v Stockland Trust Management Limited [2009] NSWDC 283

The plaintiff did not have actual knowledge before 15 January 2006 that her injury was caused by the fault of the second defendant, and she took all reasonable steps to ascertain that fact. Given her deteriorating medical condition, depression, belief that the water came from a leaking shopping centre roof in a common area, and the absence of facts that would alert a layperson to the need to identify fault by the second defendant, it was reasonable that she first sought legal advice on 3 March 2006. In any event, even if earlier steps had been required, the evidence did not establish that the relevant s 50D(1)(b) fact would have been ascertained before January 2006. The action against the...

Jurisdiction
Australia
Judgment Date
03 November 2009
Procedural Posture
Civil Personal Injury Limitation Issue / Notice of Motion Determined as a Separate Determination Under Uniform Civil Procedure Rules R 28.2
Outcome
The plaintiff's action against the second defendant is maintainable.
Legal Topics
['date When Cause of Action Is Discoverable' 'constructive Knowledge of Fault' 'reasonable Steps to Ascertain Discoverable Facts' 'maintainability of Action Against Second Defendant' 'costs of Motion']
['limitation of Actions' 'personal Injury' 'negligence' 'civil Procedure' 'costs'] ['date When Cause of Action Is Discoverable' 'constructive Knowledge of Fault' 'reasonable Steps to Ascertain Discoverable Facts' 'maintainability of Action Against Second Defendant' 'costs of Motion']

Case Brief

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Procedural Posture

Civil Personal Injury Limitation Issue / Notice of Motion Determined as a Separate Determination Under Uniform Civil Procedure Rules R 28.2

Legal Issues

  1. 1 ["Whether the plaintiff's action against the second defendant was brought within three years from the date on which the cause of action was discoverable by the plaintiff pursuant to ss 50C and 50D of the Limitation Act 1969 (NSW)." 'Whether, before 15 January 2006, the plaintiff knew or ought to have known that her injury was caused by the fault of the second defendant.' 'Whether the plaintiff took all reasonable steps to ascertain the causal relationship between her injury and the fault of the second defendant by seeking legal advice on 3 March 2006.' 'If the plaintiff had taken reasonable steps earlier, whether the relevant s 50D(1)(b) fact would have been ascertained before January 2006.']

Ratio Decidendi

The plaintiff did not have actual knowledge before 15 January 2006 that her injury was caused by the fault of the second defendant, and she took all reasonable steps to ascertain that fact. Given her deteriorating medical condition, depression, belief that the water came from a leaking shopping centre roof in a common area, and the absence of facts that would alert a layperson to the need to identify fault by the second defendant, it was reasonable that she first sought legal advice on 3 March 2006. In any event, even if earlier steps had been required, the evidence did not establish that the relevant s 50D(1)(b) fact would have been ascertained before January 2006. The action against the...

Court Disposition

The plaintiff's action against the second defendant is maintainable.

Orders

  • ["The plaintiff's action against the second defendant is maintainable." "The second defendant to pay the plaintiff's costs of the motion."]