Best v Rosamond

1. [1]

   BELL P: I agree with Payne JA.

2. [2]

   LEEMING JA: I agree with Payne JA.

3. [3]

   PAYNE JA: The appellant, Mr Best, was assaulted by his then close friend Mr Rosamond, the respondent, following a long afternoon and evening of drinking at the respondent’s Mosman home on 9 January 2015. Whilst the precise details do not matter, the respondent says that in the very early hours of 10 January, he found the appellant and the respondent’s then wife in what he identified as a “sexual embrace”, to which he responded by assaulting the appellant, including by punching him in the face and injuring his eye. The appellant denied this characterisation of events but said that the assault followed a “brief … intimate kiss” he shared with the respondent’s then wife.

4. [4]

   Proceedings in the District Court seeking damages for assault were commenced by the appellant on 17 August 2018, more than three years after the assault. Thus, this is a case about the operation of the Limitation Act 1969 (NSW). The question is whether the cause of action was “discoverable” within the meaning of ss 50C and 50D of the Limitation Act prior to 17 August 2015, three years before the case was commenced in the District Court. Sections 50C and 50D of the Limitation Act provide, relevantly:

Decision of the primary judge

1. [5]

   The primary judge found that the appellant’s action was statute barred. The primary judge identified the test to be applied as that laid down in Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 and as confirmed in State of New South Wales v Gillett [2012] NSWCA 83 (per Beazley JA, with whom McColl, Campbell, Young and Whealy JJA agreed).

2. [6]

   The primary judge recorded (at [21]) the appellant’s concession that he knew the matters identified in s 50D(1)(a) and (b) of the Limitation Act prior to the critical date, 17 August 2015. The only issue was whether for the purposes of s 50D(1)(c) of the Limitation Act the appellant knew or ought to have known the “fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action” before 17 August 2015.

3. [7]

   The appellant’s case was that his cause of action was “discoverable” only after 17 August 2015, when he learned that the injury was sufficiently serious to justify bringing proceedings. A second claim was made that the cause of action was “discoverable” only when the appellant learned that the cause of action did not fall within the provisions of the Civil Liability Act 2002 (NSW). The appellant gave no evidence about this second way of putting his case and the primary judge rejected the submission. That issue was not raised on the appeal.

4. [8]

   The primary judge found that the appellant ought to have known the “fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action” prior to 17 August 2015. The primary judge found that the appellant had undergone two surgical treatments to his left eye prior to early February 2015 as a result of the assault. The primary judge took into account that in July 2015 the appellant gave a statement to the police in which he said that he had a “permanently dilated left pupil” in the left eye and “damaged nerves” arising from the assault.

5. [9]

   The primary judge considered the medical evidence. As at the date of the appellant’s second operation, 6 February 2015, he was aware that he had suffered a “serious injury”. The appellant saw his treating ophthalmic surgeon Dr Martin again, on 1 October 2015. His Honour found that between 6 February 2015 and 1 October 2015, although there were some improvements, the appellant continued to experience double vision (on elevation) and restriction in elevation. The primary judge found that Dr Martin’s views in a January 2018 report, whilst possibly different in degree, were not dissimilar from what he had found in January and February 2015. Thus, his Honour considered that, had a medical opinion been obtained prior to 17 August 2015, it would have supported the claim ultimately made.

6. [10]

   The primary judge found that this was a relatively straightforward action in assault and that if the appellant had consulted a lawyer, that lawyer would have informed him that, upon the assumption that his version of what had happened was accepted, he had a reasonably arguable action for damages for personal injury, including aggravated damages.

7. [11]

   So far as the claim for mental harm was concerned, the primary judge found that the appellant already had knowledge (for the purpose of s 50D(1)(c)) of the material facts which would have led a reasonable person in his position to believe he had a potentially good claim for damages. The primary judge found that whilst a potential additional claim for mental harm may have inflated the quantum of damages, the existence of such a claim did not detract from the conclusion that had the appellant taken the steps reasonably required to obtain legal and medical advice prior to 17 August 2015, he would have been told that his injury was sufficiently serious to justify bringing an action for assault against the respondent. In addition, when considering the appellant’s claim on a contingent basis, his Honour found that the appellant had not established that he suffered mental harm. His Honour considered that the appellant’s evidence in this respect was “significantly falsified” in cross-examination.

Issues on the appeal

1. [12]

   The issue to be determined on this appeal was whether the primary judge erred in holding that the appellant ought to have known, prior to 15 August 2015, the fact that the injury he suffered was sufficiently serious to justify the bringing of an action for assault.

2. [13]

   By notice of contention the respondent seeks to uphold the orders made by the primary judge on the basis that this Court should conclude that, prior to 15 August 2015, the appellant knew that the injury he suffered was sufficiently serious to justify the bringing of an action for assault.

Consideration

1. [14]

   This appeal turns upon the correct application of ss 50C and 50D of the Limitation Act which are set out at [4], above.

2. [15]

   The appellant accepted that the primary judge had identified the correct test for the operation of ss 50C and 50D of the Limitation Act, being that explained in Baker-Morrison. It was the application of the facts to that legal test which was the subject of complaint. In Baker-Morrison Basten JA, (with whom Ipp JA and Macfarlan JA agreed) in addressing s 50D(1)(c) and actual knowledge, said:

3. [16]

   In relation to s 50D(2) and what a person “ought to know” about the “fact” identified in s 50D(1)(c), in Baker-Morrison Basten JA said:

4. [17]

   In Frizelle v Bauer [2009] NSWCA 239, Basten JA (with whom McColl JA agreed) returned to the issue of knowledge for the purposes of s 50D(1)(c) in the context of a case where the plaintiff sustained serious injuries in a fall on 2 July 2003 and sought legal advice on 17 July 2003 but did not commence proceedings until 5 April 2007. The question was whether the plaintiff knew, or ought to have known, prior to 5 April 2004, that her injury was “sufficiently serious to justify the bringing of an action” within the meaning of s 50D(1)(c). Basten JA said:

5. [18]

   The test for determining what a person “ought to know” about the “fact” identified in s 50D(1)(c) identified by Basten JA has been applied as the law in NSW since Baker-Morrison. In Gillett, Beazley JA (with whom McColl, Campbell, Young and Whealy JJA agreed) said:

6. [19]

   The present case involves a straightforward assault. The primary judge, having heard all of the evidence, came to the view that the steps actually taken by the appellant were inadequate and that reasonable steps ought to have been taken by the appellant to obtain medical and legal advice. Had those reasonable steps been taken, it would have been clear to the appellant that he had a sufficiently serious injury to justify the bringing of an action on the cause of action.

7. [20]

   Detailed findings of fact were made by the primary judge relevant to this conclusion. The only material fact challenged by the appellant in the notice of appeal restated the global complaint of the appellant, namely:

8. [21]

   There was no statement filed by the appellant identifying the findings of fact which were challenged and the alternative findings contended for, as required by the Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2). This is an important omission in the present case as the appellant’s challenge essentially rests on overturning numerous findings of fact, including demeanour based credit findings. Principal amongst those findings was his Honour’s finding that the appellant was not a satisfactory or reliable witness. No submission was made that this finding should not have been made. A number of other findings were made about beliefs asserted by the appellant which were also, in part, demeanour based credit findings. It was not submitted that any of the facts found by the primary judge were glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29].

9. [22]

   To the limited extent that a challenge to the facts found by the primary judge was ultimately pressed in oral submissions, I reject that challenge. The critical matters emphasised by the appellant in his oral submissions demonstrate that the ultimate conclusion of the primary judge about what the appellant ought to have known about the fact identified in s 50D(1)(c) was correct.

10. [23]

    First, the appellant emphasised in submissions that prior to the critical date, 17 August 2015, he had sought medical advice and was receiving treatment. That is true to a point. The facts found by the primary judge, however, require that submission to be considered in a quite different light:

    1. (1)

       as at 6 February 2015, the appellant was aware that he had suffered a “serious injury”. By then, he had undergone two surgeries;

    2. (2)

       between 6 February 2015 and when the appellant saw Dr Martin again on 1 October 2015, the appellant continued to experience double vision (on elevation) and restriction in elevation;

    3. (3)

       the observations of significance made by Dr Martin on 1 October 2015, double vision (on elevation) and restriction in elevation, were applicable to the period between 6 February 2015 and 17 August 2015. The problems and difficulties that the appellant had experienced in January and February 2015 had not gone away by 17 August 2015; and

    4. (4)

       whilst Dr Martin’s views on 30 January 2018 may have differed in degree, they were not dissimilar from what he found in January and February 2015.

11. [24]

    Thus, a medical opinion, had it been obtained prior to 17 August 2015, would have confirmed that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

12. [25]

    These factual findings, which were amply justified, do not give rise to any reason to doubt the ultimate conclusion of the primary judge that, acting reasonably, the appellant’s cause of action was discoverable within the meaning of ss 50C and 50D before 17 August 2015.

13. [26]

    Secondly, the appellant emphasised in submissions that as at 17 August 2015 he believed, allegedly on the basis of the medical advice received, that his left eye condition would heal. The primary judge rejected that evidence. In doing so his Honour found:

    1. (1)

       the effects of the appellant’s eye injury continued to be suffered until August 2015. His Honour noted that the appellant referred, in his evidence in chief, to continuing to suffer double vision above 10-15 degrees, a sensitivity to light and other ailments;

    2. (2)

       on 4 July 2015, the appellant made a written statement to the police for the purposes of criminal proceedings, in which he said that as a result of the assault he had suffered a “permanently dilated left pupil” in the left eye and “damaged nerves”. His Honour found that this statement related to the appellant’s understanding of his injuries as at 10 January 2015, the date of the assault; and

    3. (3)

       the appellant contended that the effects or disabilities from his eye condition, as the appellant had described them, had diminished his capacity to earn and his enjoyment of life. His Honour found that those effects or disabilities manifested before 17 August 2015.

14. [27]

    The difficulty for the appellant in advancing this part of the case was demonstrated by the following exchange in oral argument about the subject of the police statement described at sub-paragraph (2) above:

15. [28]

    No basis has been shown to doubt the findings of the primary judge on this topic. Indeed, the content of the written statement to the police made on 4 July 2015 for the purposes of a criminal prosecution of the respondent made the appellant’s submission that, prior to 17 August 2015 he believed his left eye would heal, untenable.

16. [29]

    Thirdly, the appellant emphasised in submissions his belief that he was not aware that he was suffering symptoms which would give rise to a psychiatric injury. This evidence of belief was considered at length by the primary judge who made the following findings:

    1. (1)

       the appellant’s internalised and subjective concerns regarding his mental state were significantly falsified in cross-examination;

    2. (2)

       public events, including repeated court attendances involving the respondent and the respondent’s former wife, which the appellant attended, do not appear to have been drawn to the attention of the psychiatrist who diagnosed the appellant. Had they been, his Honour considered that they would have had a material effect upon the diagnosis;

    3. (3)

       there was no indication of any objective assessment of any complaints by the appellant, or concerns of professional service providers, about the appellant’s mental health prior to his assessment on 14 February 2019, virtually four years after the assault. The appellant adduced no evidence to corroborate his complaints. His Honour found that the appellant presented as a man confident and secure in himself; and

    4. (4)

       his Honour was not persuaded that the appellant had established the existence of a Post-Traumatic Stress Disorder or any other psychiatric condition.

17. [30]

    In any event, the primary judge concluded that even if the appellant’s claim about mental harm was accepted, this may have inflated the quantum of damages but it did not detract from the conclusion that, had the appellant taken reasonable steps to obtain legal and medical advice prior to 17 August 2015, he would have known that his injury was sufficiently serious to justify bringing an action on the cause of action which the appellant knew was available against the respondent. The primary judge’s conclusion was correct.

18. [31]

    Fourthly, the appellant’s submissions emphasised his belief that he only became aware of the extent of the injury and the lasting impact it would have upon him after 1 October 2015. Detailed findings rejecting that evidence were made by the primary judge. In particular, his Honour found:

19. [32]

    The primary judge held that even if his Honour were to believe the appellant’s evidence that he began to struggle from the emotional impact of the assault only later, in October 2015, this did not address the critical question:

20. [33]

    No persuasive reason was advanced to suggest why that finding was incorrect.

21. [34]

    These findings of fact provide a firm foundation for the ultimate conclusion of the primary judge that, acting reasonably, the appellant’s cause of action was discoverable within the meaning of ss 50C and 50D prior to 17 August 2015.

22. [35]

    In addressing the relevant legal standard to be applied, the appellant submitted that s 50D provides flexible criteria for the commencement of proceedings, and allows for reference to stability and/or knowledge of the impact and/or prognosis of injuries to determine whether or not they are of sufficient seriousness to justify litigation, referring to Baker-Morrison at [9].

23. [36]

    It may be accepted that the steps necessary to satisfy the test of “all reasonable steps” identified in Baker-Morrison are flexible. As Basten JA said (at [58]), “[i]n most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff … to satisfy the element of taking ‘all reasonable steps’”. Despite the appellant having actual knowledge that he had suffered a “serious injury” as a result of the assault and that he had a “permanently dilated left pupil”, that simple step was not taken here in the eight months between the assault and 17 August 2015.

24. [37]

    To the extent that the appellant’s complaint is that the prognosis for the injury remained unstable prior to the critical date, the primary judge rejected the appellant’s evidence that this was so. Whilst Baker-Morrison does not specifically refer to questions of prognosis or stability, the additional remarks of Campbell JA (with whom three other judges agreed) in Gillett at [131] provide that the section requires that an injured person know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. On the findings made by the primary judge, the question of whether the appellant had sufficient prospects of recovering enough damages for it to be worthwhile litigating is not an issue in this case. In Frizelle, Basten JA accepted the submission that the prognosis of the applicant “remained somewhat uncertain” prior to the critical date but nevertheless concluded that knowledge for the purposes of s 50D(1)(c) was established. This was because the primary judge in that case was correctly satisfied that the impairment of the injured person’s earning capacity, and the likelihood that it would continue, was known to the applicant prior to the critical date.

25. [38]

    The appellant’s submission that some uncertainty about the “stability and/or knowledge of the impact and/or prognosis” of his injury cast doubt upon the conclusion of the primary judge should be rejected. There is no reason to doubt the conclusion of the primary judge that if the appellant had seen a solicitor at any time in the many months after the assault, he would have been informed that if his version of events was accepted the injury he suffered in the assault was sufficiently serious to justify the bringing of an action on the cause of action.

26. [39]

    The appellant also submitted that to determine whether an injury is sufficiently serious, a person must know both that the symptoms are serious, and that those symptoms or injury provide a cause of action. The question of a psychiatric injury requires knowledge both that the symptoms are serious, and that there is an actionable injury.

27. [40]

    As to the first issue, the essentially unchallenged findings of the primary judge already described establish that the appellant actually knew prior to the critical date that he had suffered a serious injury as a result of the assault. The submission does not address the findings of the primary judge about the failure of the appellant to consult a solicitor and the likely result of such a consultation, had it occurred, in this case.

28. [41]

    As to the second issue, psychiatric injury, there is no reason to doubt the conclusion of the primary judge that whilst a potential additional claim for mental harm may have increased the quantum of damages, the existence of such a claim did not detract from the conclusion that had the appellant sought legal and medical advice prior to 17 August 2015, he would have been advised that his injury was sufficiently serious as to justify bringing an action against the respondent for assault.

29. [42]

    The appellant accepted that the need to seek medical or legal advice is tested objectively, but submitted that “litigious exuberance is not the standard required by the legislation” (referring to Ditchburn v Seltzam Ltd (1989) 17 NSWLR 697 at 704). It was submitted to be for this reason that the legislation addresses the issue as being “sufficiently serious” and considers the question of worthwhile actions (referring to Baker-Morrison at [41]-[46]).

30. [43]

    It may be accepted that “litigious exuberance” is not the standard required by the legislation and that what must be shown a plaintiff must know, or “ought to know” in the case of injury, is the fact that the injury was “sufficiently serious” to justify the bringing of an action on the cause of action. In many ways this submission attacks a straw man. The primary judge addressed the correct test in ss 50C and 50D and did not apply a standard of “litigious exuberance”. The correct application of the test is clear in a number of passages, including:

    1. (1)

       in the conclusions of the primary judge at [24] that, “the defendant has made out the requisite fact in s 50D(1)(c). In summary, although he may not actually have known that his injury was sufficiently serious to justify the bringing of an action on the cause of action, that fact would have been ascertained, prior to 17 August 2015, if Mr Best had, as he ought to have done, taken reasonable steps to obtain legal and medical advice and information”; and

    2. (2)

       in the conclusions of the primary judge at [31], “in my view, Dr Martin’s views on 30 January 2018, whilst they may have differed in degree, were not dissimilar from what he found in January and February 2015. Thus, a medical opinion, had it been obtained prior to 17 August 2015, would have supported a claim”.

31. [44]

    The appellant also submitted that UCPR r 42.35 was relevant here. That rule makes default provision for costs for actions in the District Court where a judgment not exceeding $40,000 is obtained. One critical difficulty with reliance on this provision was pointed out in oral argument:

32. [45]

    In the present case, where no statutory thresholds intrude, the cause of action was discoverable shortly after the damage was suffered. It is to be borne in mind that ss 50C and 50D are by way of exception to the general provision of a three-year limitation period for claims based on damages for personal injury.

33. [46]

    Finally, the appellant submitted that where a reasonable person is of the opinion, having sought medical advice, that their injuries would heal, a reasonable person would be entitled to rely upon such advice. Whether or not, in the abstract, that proposition is correct, the primary judge found to the contrary. The appellant’s submissions do not refer to any statement by any medical professional that the appellant’s injuries “would” heal. The appellant’s counsel accepted that whilst Dr Martin said in his 2018 report that “there was some improvement … [h]e certainly doesn’t say the injury had gone away or the injury would go away.” There is no reason to doubt the conclusions of the primary judge.

Conclusion and orders

1. [47]

   The appellant’s submissions do not adequately engage with the detailed findings made by the primary judge. Rather, the appellant’s case proceeds on the basis of different and incorrect assumptions about the facts proven in this case. The appellant’s complaints about the findings of the primary judge are essentially complaints made about findings of fact. Those findings have not been shown to be incorrect. The appeal should be dismissed with costs. Given this conclusion it is unnecessary to deal with the respondent’s notice of contention which addressed the subject of the appellant’s actual knowledge.

2. [48]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Appeal dismissed;

   2. (2)

      Appellant to pay the costs of the respondent.