Under s 50D of the Limitation Act 1969 (NSW), a cause of action for personal injury is not 'discoverable' until the plaintiff (or capable parent) knows or ought to know the key factors necessary to establish legal liability, including the availability of reasonable precautions the defendant should have taken. Assessment of whether injury is 'sufficiently serious to justify the bringing of an action' requires access to legal and medical information. The 'ought to know' test in s 50D(2) engages only the active sense — whether the person should have inquired — and does not require inquiry into whether a solicitor or other adviser should have provided information sooner. The defendant bears the onus of proving the limitation defence on a summary dismissal application.
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