Limitations issues: Discoverability, reasonable steps

Smith v Hunter New England Local Health District [2016] NSWSC 248 concerned a limitation expiry defence and, in response, an application by the claimant for a declaration that the proceedings were commenced in time (some nine years after the death).

The claim was a compensation to relatives claim arising from the suicide of a person who had been discharged from a psychiatric hospital a few days earlier (see [4] – [7]). The statement of claim was not filed until some 9 years after the death: [8].

The court addressed the issues of:

  • Whether the claimant knew or ought to have known of the fact that her late husband’s death was caused by the fault of the defendant before the relevant date, the court held that the claimant did not know until she had received certain advice (at 59]); and
  • Whether the claimant had taken all all reasonable steps to ascertain that fact.

The comments at [62] & [64] are of general interest:

[62] The defendant appeared to regard Mrs Smith’s desire both for an inquest and to have the cause of the deceased’s death investigated by the HCCC as preliminary steps to making a claim against the hospital, as they not infrequently are. However, in the present case, I am satisfied that they were not. It is a matter of common experience that many tragedies are non-compensable…..

[64] Tt may be difficult for those, such as the defendant, who are accustomed to operating in an arena where monetary compensation for legal wrongs is a dominant consideration, to appreciate the sophistication of a claim such as the one sought to be brought by Mrs Smith on behalf of herself and her children and the legal expertise required to know of its existence and content. First, one must know that there is a cause of action for the dependants of a deceased; and, secondly, one must know that the defendant is liable for any negligence by the hospital which, in turn, owes a duty to its patients which, being non-delegable, cannot be delegated to its medical staff. Both of these two matters distinguish Mrs Smith’s claim from one in which the injured person sues the wrongdoer for damages for the wrong where legal liability and moral culpability can be seen to be more closely aligned.

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