The Court of Appeal upheld the trial judge’s dismissal of the plaintiff’s claim on the basis that the defendant did not breach its duty of care to the plaintiff.
More significantly, the Court of Appeal also upheld the defendant’s Notice of Contention raising a limitation defence. The Court of Appeal said the trial judge had erred in dismissing the limitation defence by relying upon its earlier decision in Baker-Morrison v State of NSW (2007) 74 NSWLR 454;  NSWCA 35. The principles relied upon by the trial judge from Baker-Morrison were relevant to a case where the question was one of constructive knowledge, ie what the plaintiff ought to have known about the discoverability of the cause of action. The present case, however, was one of actual knowledge of the plaintiff, to which the particular principles from Baker-Morrison did not apply. In the present case, because the plaintiff knew everything he needed to know in order for his cause of action to be “discoverable”, what his solicitors subsequently did or did not do was irrelevant.
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