A solicitor's letter foreshadowing a common law claim does not, of itself, establish that the plaintiff had actual knowledge that injuries were sufficiently significant to warrant bringing proceedings, particularly where the injuries as then known were limited to soft tissue injuries, no specialist investigation had been undertaken, and it was not possible to advise whether the s 27 Civil Liability Act 2002 (Tas) threshold would be met. The question whether knowledge under par (c) of the definition of 'date of discoverability' requires consideration of the s 27 threshold depends on the circumstances of the individual case. A [name withheld] v [name withheld] inference from failure to call a witness permits the court to more readily draw an unfavourable inference from the opposing party's evidence, but does not permit the court to infer facts unfavourable to the party who failed to call the witness.
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