Best v Rosamond [2020] NSWCA 90
Facts
On 9 January 2015, Mr Rosamond and his then wife hosted a belated Christmas party for their family and friends. Mr Best was one of the attendees.
The Christmas party was, to say the least, a wild one. Mr Best and Mr Rosamond spent much of the party drinking. However, in the early hours on 10 January 2015 the best friends got involved in a physical altercation after Mr Rosamond found Mr Best in a “sexual embrace” with his then wife. In Mr Best’s opinion, it was only a “brief intimate kiss”. Upon witnessing the ‘sexual embrace” Mr Rosamond punched Mr Best in the eye and slapped his then wife.
Mr Rosamond was charged with recklessly inflicting bodily harm and common assault. Mr Best commenced proceedings against Mr Rosamond for the injuries that he had sustained. The proceedings were commenced on 17 August 2018 in the District Court of NSW. There was a dispute about whether the proceedings were commenced out of time.
What does the law say about the time for commencing proceedings?
In personal injury matters, Court proceedings must be commenced within three (3) years from the “date of discoverability”, which is the date that the person knows, or, should have known, that the injury occurred as a result of the fault of the Defendant, and was sufficiently serious to justify a cause of action. Once this date becomes “discoverable”, the 3 year time limit starts to tick.
Decision
The District Court of NSW found in favour of Mr Rosamond on the basis that Mr Best had commenced proceedings more than three (3) years after the date on which it became apparent to Mr Best that an injury had occurred.
Mr Best appealed to the NSW Supreme Court of Appeal. The Court denied the appeal, affirming the decision of the District Court. Mr Best was unable to continue with the proceedings and was also ordered to pay his previously close friend’s legal costs!
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