Bracher v Club Marconi

[2000] NSWSC 1007

CITATION:	Bracher v Club Marconi & Ors [2000] NSWSC 1007
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20669/97
HEARING DATE(S):	26/10/2000
JUDGMENT DATE:	14 December 2000
PARTIES :	Peter George BRACHER v CLUB MARCONI & Ors
JUDGMENT OF:	Ireland AJ at 1

COUNSEL :	M L Williams SC with C Stewart - Plaintiff/Respondent A Enricht with Mr Hudson - 1-11 Defendants C M Simpson - 12th Defendant
SOLICITORS:	McGrath, Dicembre & Company - Plaintiff/Respondent Ron Kramer Associates - 5th Defendant Jenny Bull & Company - 1-4, 6-11 Defendants Philip Goldman & Co - 12th Defendant
CATCHWORDS:	Appeal from Master against extension of limitation period. Ss 60C and E. - Application to strike out Statement of Claim. - Workers' Compensation Act, s. 151D whether operation of Act limited to assessment of damages.
LEGISLATION CITED:	Part 60 Supreme Court Rules Limitation Act 1969 (NSW) Workers' Compensation Act 1987 (NSW)
CASES CITED:	State Rail Authority v Hammond (1988) 15 NSWLR 395 Kirby v Leather [1965] 2 QB 367 Pointon v Walkley (1951) SASR 121 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Szerdahely & Ors v Bailey NSWSC unreported per Badgery-Parker J, 1 May 1997
DECISION:	Refer paragraph 67.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: IRELAND AJ

DATE: THURSDAY, 14 DECEMBER, 2000

20669/97 - Peter George BRACHER - v CLUB MARCONI & ORS
JUDGMENT

1 HIS HONOUR: This is an appeal pursuant to Part 60 of the Supreme Court Rules, from the decision of Master Harrison given on 8 December 1999.

2 By consent on 12 March 2000 the Court ordered that a Notice of Motion, filed on behalf of all defendants except the twelfth and thirteenth defendants, to strike out the plaintiff's Statement of Claim, be heard together with the appeal. By Notice of Motion filed in Court on 21 July 2000, the twelfth defendant sought an order that the whole or part or parts of the plaintiff's Statement of Claim be struck out and for that Motion to be heard with the appeal.

3 Upon commencement of the hearing of these proceedings on 26 October 2000, consent orders were made dismissing from the proceedings the twelfth defendant, Juliano Colusso. It would seem that the thirteenth defendant has never appeared.

4 By Statement of Claim filed 9 July 1997 and served on 31 July 1997, the plaintiff sues his former employer Club Marconi (the Club) and its twelve directors claiming damages for breach of his contract of employment and in tort alleging that the defendants "wrongfully and maliciously conspired and combined among themselves to injure the plaintiff in the performance of his professional and contractual functions and obligations".

5 The plaintiff commenced employment with the Club in about November 1990 as Joint General Manager. In February of 1991 the plaintiff's status became that of sole General Manager.

6 By agreement dated 31 March 1993 an unsigned copy of which is document 1 in Exhibit "1D1" and which is relied on by the plaintiff in his statement of claim, the plaintiff 's duties and emoluments were defined.

7 In an Employer's Report of Injury dated 21 December 1993 (document 2 in Exhibit "1D1") an injury to the plaintiff occurring on 24 November 1993 is described by the Club's Training and Human Resources Manager in the following terms:

"During a stressful Board meeting Peter Bracher was forced to leave early due to chest pains".

The plaintiff resumed work on 26 November 1993.

8 By letter of 2 June 1994 (document 4 in Exhibit "1D1") the Club's Insurer accepted liability for the plaintiff's claim of 24 November 1993.

9 A compensation claim bearing date 22 July 1994 describes the event and consequences as:

"Ongoing from November 1993, report lodged continual stress."

10 In a certificate dated 29 June 1994 Doctor Edgar Freed, Psychiatrist, stated that the plaintiff was suffering from a moderately severe depression and should not return to work for at least one month. On 17 July 1994 Dr. Freed furnished a comprehensive medico-legal report regarding the plaintiff whom he had first seen on 17 June 1994.

11 Dr. Freed expressed the opinion that the plaintiff suffers from a Major Depression as well as an Anxiety Disorder with episodes of panic arising directly out of the tensions experienced by him at the Club as well as the Court proceedings against the Club Board Members. The plaintiff's symptoms were considered to be persistent to a greater or lesser extent and to be significant for at least the next six months requiring anti-depressant medication for the ensuing two years.

12 By Deed bearing date 15 July 1994 the plaintiff and the Club sought to resolve the differences which had arisen between them as to the plaintiff's employment.

13 The Deed incorporated the following Recitals:-

"A. Bracher is employed by the Club as its Chief Executor Officer and has been so employed since 9th November, 1990.
B. The Club seeks to terminate Bracher's employment.
C. A dispute has arisen between Bracher and the Club as to the terms and conditions of his employment and various entitlements arising out of his employment and its termination which the Club and Bracher have agreed to settle."

14 Under the heading Operative Parts, the steps involved in implementing the provisions of the Deed are set out including at paragraph 6 of 10 paragraphs the following:-

"6. Bracher releases and forever discharges the Club from all manner of damages, claims, actions, suits, causes of action, proceedings, demands, costs and expenses both at law or in equity or arising under any statute (excluding the Workers' Compensation Act 1987) arising from or connected in any way with the matters set out in the Recitals to this Deed which Bracher, his successors or assigns have or may have in the future but for the execution of this Deed could or might have had upon or against the Club whatsoever or howsoever and Bracher indemnifies the Club and agrees at all times hereafter to keep the Club effectively indemnified against all manner of damages, claims, actions, suits, causes of action, proceedings, demands, costs and expenses both at law or in equity or arising under any statute (excluding the Workers' Compensation Act 1987) which arise from or are connected in any way with the matters set out in the Recitals to this Deed."

15 In paragraph 1 of her judgment of 8 December 1999 Master Harrison states:-

"1. The plaintiff by Notice of Motion filed 29 June 1999 seeks an order that the time within which to commence proceedings be extended pursuant to s. 60C and E of the Limitation Act 1969 (NSW) (as amended) (the Act) as against the second to thirteenth defendants and s. 151D of the Workers' Compensation Act (NSW ) as against the first defendant. The plaintiff relied on his affidavit sworn 28 June 1999. The defendants relied on the affidavit of Richard Mark Pegg sworn 10 August 1999. The thirteenth defendant did not appear."

16 So far as would appear from the documents included in the Court file the above recitation is not entirely accurate. The Notice of Motion upon which the plaintiff appears to rely indicates a hearing date of 29 June 1999 but was filed on 11 June 1999.

17 The relief sought in this Notice of Motion is the following:-

"1. That time be extended under the Limitation Act for the filing of the Statement of Claim No. 20669/97.
2. Such further and other orders that the Court deems fit.
3. Costs."

18 On behalf of the defendants one to eleven who are all represented by Mr Enright of Counsel, it is argued that it was not open to the Master to consider the plaintiff's application in the light of s. 151D of the Workers' Compensation Act and that this was a point taken at the hearing. I do not accept this argument. The plaintiff was employed by the first defendant and the statutory provision governing their relationship is the Workers' Compensation Act. In addition, order 2 as sought in the Notice of Motion makes plain the ambit of proper inquiry by the Court. In my view the approach adopted by the learned Master was, with respect, the appropriate one.

19 With regard to the need for an extension of time concerning paragraphs 6 to 11 of the Statement of Claim, Master Harrison dealt with them in this fashion:-

"2. The plaintiff's Counsel submitted that in the pleadings paragraphs 6 to 11 of the Statement of Claim inclusive do not need an extension of time. The pleadings in paragraphs 6 to 8 refer to a breach of contract. The damages are those which have arisen from the breach or breaches of contract. Paragraph 9 refers to a conspiracy and paragraph 10 to intimidation.
3. If an extension of time is required for paragraphs 6 to 11 of the Statement of Claim the application for same is stood over to be determined at the trial. The circumstances in which the plaintiff entered into the Deed of Agreement dated 15 July 1994 may need to be canvassed."

20 Significantly the Master noted that for the purposes of the application she found a series of facts which it is convenient to set out below and in addition expressed her assessment of the plaintiff who gave evidence and was cross-examined before her as being "(a) a truthful and intelligent witness." The facts found by the Master and which are not challenged are the following:-

"1. In about November 1990 the plaintiff commenced employment with the first defendant as Joint General Manager. In February 1991 he took over as General Manager.
2. In November 1993 the plaintiff was attending a building meeting, on behalf of the first defendant, when he suffered chest pains. He went to hospital. He had a few days off work and claimed workers' compensation for that period.
3. In December 1993/January 1994 the plaintiff was subpoenaed and gave evidence to the Liquor Administration Board in relation to activities involving the first defendant.
4. During the course of the plaintiff's employment he was subjected to various threats, harassment, intimidation and his directions were countermanded by the first defendant and he was directed not to co-operate with the Liquor Administration Board in their investigation into the affairs of the first defendant. As a result of this the plaintiff feared for his personal safety.
5. During early 1994 the Assistant Manager employed by the first defendant, Wayne Forrest was assaulted in the car park of the premises of the first defendant. Shortly after this assault the plaintiff received a telephone call from an unidentified person who said to him during the course of the conversation words to the effect:
"Take what happened to Forrest as a warning and don't rock the boat. It could be unhealthy, keep your mouth shut, and give the Liquor people nothing."
6. Also during early 1994, a Club member by the name of Genovisi Quattrone approached the plaintiff outside the foyer of the first defendant's premises and said to him words to the effect:
"We like you Peter, we don't like anything to happen to you. Be careful what you say to the Liquor Administration Board."
As those words were said Mr Quattrone displayed a pistol which he had tucked into his belt which was covered by a stretchy polo neck shirt. Mr Quattrone allegedly put his left arm under his shirt and on the pistol. The plaintiff reported the threat to detectives at Central Police Station. The plaintiff, at the time of making the complaint, was unwilling to identify the maker of the threats as he knew him to be a close friend of the second defendant and other members of the Board.
7. Because of the threats the plaintiff feared for his family's safety. He moved his wife to a country town where their son was in boarding school. He took precautions for his own safety.
8. In May 1994 the plaintiff suffered a nervous break-down. He has never fully recovered but started to get his self-confidence back later in 1994. The plaintiff consulted Dr. Freed, a Psychiatrist on 17 June 1994 and has been consulting him on an average of once per month from that date to the present time. On 20 July 1995 Dr. Freed furnished a report. He diagnosed that the plaintiff suffered from a major depression as well as an anxiety disorder with episodes of panic. He opined that these conditions arose directly out of the tensions which the plaintiff experienced at the Club, as well as the Court case which ensued against members of the Club Board. He said that the plaintiff's symptoms would persist while Court proceedings continued and/or his income remained less than it was with the first defendant.
9. On 15 July 1994 the plaintiff entered into a Deed with the first defendant in relation to his resignation. He knew that he had legal rights but he felt that he was not able to deal with them. He was able to give his solicitors instructions concerning the circumstances surrounding the dispute with his employer. Paragraph 6 of the Deed states that the plaintiff releases and forever discharges the Club from all manner of damages, claims, actions, suits, causes of action, proceedings, demands, costs and expenses both at law or in equity or arising under any statute (excluding the Workers' Compensation Act 1987) arising from or are connected in any way with his employment as Chief Executive Officer.
10. In about July 1994 the plaintiff commenced employment at Penrith Leagues Club in the motel. On 15 October 1994 he was promoted to a job as co-ordinator of the catering team.
11. In 1995 the plaintiff gave evidence to a Senate Inquiry in relation to the transfer of a soccer player Paul Okon from Marconi Club (first defendant) to Club Brussels in Brugge.
12. In May 1995 the plaintiff consulted Holman Webb, Solicitors about an article published about him in the "Marconi News". He had one consultation with a solicitor which lasted between ten to thirty minutes in which he requested that an apology be sought. He forwarded transcripts of proceedings before Licensing Magistrate Keating to the solicitor. On 25 May 1995 the plaintiff's solicitor forwarded a letter to the editor of "Marconi News" and a copy to the plaintiff. The plaintiff agreed with the contents of the letter. (This letter which is actually dated 24 May 1995 is before this Court as Exhibit "A").
13. In 1995 the plaintiff gave evidence before the Stewart Inquiry.
14. Prior to giving evidence at Court Inquiries or Tribunals the plaintiff was involved in interviews and preparing statements of his evidence. A short time prior to being required to give evidence in Court proceedings the plaintiff would consult with his psychiatrist who would increase his dose of medication. The plaintiff would become depressed, tense, anxious and mentally drained and lose sleep.
15. At the end of 1995 the plaintiff obtained employment with the Building Workers' Club at Durrock as a Secretary/Manager. This job lasted three months.
16. From February 1996 to October 1997 the plaintiff was employed as Secretary/Manager of the Tattersalls Club. The job was a responsible, demanding one and he performed well for the first nine months.
17. In late 1996/1997 the plaintiff realised he would never be capable of having a career as a Manager.
18. In 1997 the plaintiff gave evidence before the Liquor Administration Board in relation to activities involving the first defendant.
19. From 26 July 1998 the plaintiff was employed at Ramsgate R.S.L. as a Secretary/Manager. He is currently employed. He has been employed in lesser positions in smaller Clubs since he left the Marconi Club.
20. The plaintiff gave evidence that he was incapable of taking these legal proceedings until the end of 1996. He did not seek legal advice until the end of 1996 because of the effects it had on his health. Every time that he is required to discuss this matter he becomes fearful and suffers from anxiety attacks.
21. On 9 July 1997 the Statement of Claim was filed.
22. On 29 June 1999 the Notice of Motion was filed seeking an extension of the limitation period. (As previously noted the Notice of Motion indicates a hearing date on 29 June 1999 but was filed on 11 June 1999)."

21 The Master proceeded to consider the plaintiff's application within the terms of s. 52 of the Limitation Act.

22 Section 52 relates to the suspension of a limitation period in circumstances where the person in question is under a disability.

23 "Disability" is relevantly defined in s. 11(3)(b) as being:-

"3F For the purposes of the Act a person is under a disability:
(a) …
(b) while he is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(i) any disease or any impairment of his physical or mental condition."

24 Having referred to relevant authority which for completeness I will note includes State Rail Authority v Hammond (1988) 15 NSWLR 395; Kirby v Leather [1965] 2 QB 367 per Lord Denning at 383; Pointon v Walkley (1951) SASR 121. Master Harrison was not satisfied that the plaintiff had discharged the onus of proof which rested upon the plaintiff to establish that by reason of his psychiatric state he was incapable or substantially impeded in the management of his affairs in relation to his cause of action and that accordingly the claim under s. 52 failed. No appeal is brought from that decision.

25 Section 60C and E

The above sections provide as follows:-

" 60C. (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a Court by a person claiming to have a cause of action to which this section applies, the Court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it so decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."

26 Section 60E provides:-

" Matters to be considered by the Court
60E (1) In exercising the powers conferred on it by s. 60C or 60D, a Court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the Court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:-
(a) the length of and reasons for the delay;
(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;
(c) the time at which the injury became known to the plaintiff;
(d) the time at which the nature and extent of the injury became known to the plaintiff;
(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;
(g) the steps (if any) taken by the plaintiff to obtain medical, legal, or other expert advice and the nature of any such advice the plaintiff may have received;
(h) the extent of the plaintiff's injury or loss."

27 The learned Master then cited Sydney City Council v Zegarac (1998) 43 NSWLR 195, a decision of the Court of Appeal NSW in which s. 60C and s. 60E were considered and in which Mason P at 197 set out the following propositions which, to his mind, were uncontroversial:-

"1. Section 60C confers a judicial discretion.
2. The discretion is a discretion to grant, not a discretion to refuse an extension of the primary limitation period. The Court must be satisfied that it is "just and reasonable" to make the order for extension; see also Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 547, 554, 567-568.
3. In exercising the discretion, the Court is required "to have regard to all the circumstances of the case" (s. 60E) (1)). It is also required to have regard to the eight factors listed in s. 60E (1) "to the extent that they are relevant to the circumstances of the case".
4. Among those circumstances to which a Court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney-General's Second Reading Speech that are set out in the other judgments, and which McHugh J discusses in Brisbane South (at 551-553): see also Kirby J (at 563-564).
5. Since s. 60C creates a judicial discretion appellant review is restricted by well-known principles.
Beyond this are more debatable areas of application of Brisbane South."

28 The Master set out the following factual matters:-

"The limitation period expired on 27 May 1997; the Statement of Claim was filed on 9 July 1997, just over two months out of time; the application seeking the extension of time was filed on 29 June 1999 being about two years later; the case has been subject to case management Court directions involving appearances before the Court by the parties' legal representatives since 22 October 1997; the plaintiff's reason for delay is that due to his psychiatric condition he was incapable of bringing legal proceedings until the end of 1996; in late 1996 the plaintiff consulted a solicitor and proceedings were commenced just over six months later; there is no explanation for that six months delay nor the two year delay in filing the application to extend time, however the defendants have been aware of the proceedings since shortly after the expiration of the limitation period.

29 There was no contention on behalf of any of the defendants that they had lost evidence that would have been available had the action been commenced within the limitation period.

30 The Master further found that shortly after 24 May 1994 the plaintiff was aware that he had suffered an injury and of the connection between the injury and the acts of the defendants within the meaning of s. 60E (1)(c) and (e). It was not however until 1996 that the plaintiff became aware that he would never be able to re-attain the position of manager of a large Club such as the first defendant (s. 60E(d)).

31 In accepting the plaintiff's evidence the learned Master recognised that this evidence would be challenged at trial.

32 The evidence accepted by Master Harrison included the following:-

"In January 1994 the plaintiff was the object of anonymous threats; his assistant-manager (Forrest) was assaulted on the first defendant's premises and the plaintiff received a telephone call in which he was told to "Take what happened to Forrest as a warning and don't rock the boat. It could be unhealthy, keep your mouth shut and give the Liquor Board nothing"; a further threat was received by the plaintiff when a Club member produced a pistol and told the plaintiff to be careful what he said to the Liquor Administration Board."

Following these threats the plaintiff relocated his wife to the country and took certain precautions for his personal safety. Notwithstanding the threats, the plaintiff gave evidence at the Liquor Administration Board Inquiry and before other Courts and Tribunals.

33 Master Harrison noted the submission of Counsel that the anonymous threats on the evidence as then presented could not be linked to the defendant. There was, nevertheless, a factual matrix surrounding the various events spoken of in evidence by the plaintiff including his relationship with the Board members and the assault upon Mr Forrest from which a tribunal of fact may draw the necessary inferences.

34 The comment at paragraph 19 of the Master's judgment: "If the behaviour referred to earlier is linked to the first defendant and its directors it is very serious indeed", in my view does not leave open the submission made on behalf of the defendants that failure to forge that link impacts upon the plaintiff's entitlement to an extension of time in which to bring his action. The forging of the link may be of significance in proving the plaintiff's case at trial, however, for present purposes, it is the effect of those events upon the plaintiff, regardless of their genesis, which is important. The Master concluded that: "Those actions brought about a delay in the plaintiff taking proceedings until 1996" (S 60E (f)). In my view the conclusion was open on the evidence and on the facts found.

35 The medical evidence placed before the Master on behalf of the plaintiff was not the subject of any countervailing medical evidence put forward by the defendants. The plaintiff's psychiatric condition between 17 June 1994 and 2 June 1995 was the subject of detailed analysis. The plaintiff has been under the care of Dr. Freed, on average, once per months since 17 June 1994. The Master accepted that the plaintiff will require regular psychiatric consultations and medications in the future it being noted that the symptom of shaking in the left hand is ongoing.

36 The plaintiff, at the time of the hearing had been in continual employment since August 1994, his career prospects were however accepted as having been diminished (s. 60E (d), (g), and (h)).

37 The Master at paragraph 21 of her judgment identified the evidentiary onus which rested upon the plaintiff to adduce material which demonstrated that the dilatory plaintiff has a real case to advance. See Szerdahely & Ors v Bailey, NSWSC unreported per Badgery-Parker J. 1 May 1997 and see also Zegarac (ante).

38 The contention on behalf of the second to twelfth defendants (now second to eleventh defendants) that their liability is subsumed in the vicarious liability of the first defendant was identified as depending upon whether the directors acted outside the scope of their duties as directors so as to attract liability to themselves as individuals which is a factual issue for determination at trial.

39 Master Harrison found that: "there is medical evidence to support the plaintiff's claim that he has suffered major depression and an anxiety disorder. There is evidence to support the plaintiff's proposition that his career prospects have been diminished as a result of his psychiatric condition which was caused by the actions of the defendants." Accordingly a finding was made that the plaintiff has a real case to advance. I concur in this view.

40 As to delay generally the Master noted that a Club member may be subpoenaed to give evidence of conversations that allegedly took place five years ago, however, since there was a pistol allegedly produced during this conversation that factor may be of assistance in his recall of the conversation. The plaintiff's medical records kept by his general practitioner are available from 1991 to 1996 and the plaintiff's treating Psychiatrist's reports from 1994 to 1995 are also available as well as his notes from monthly visits. In addition the first defendant's insurer has been making Workers' Compensation payments for medical expenses and has had the plaintiff seen by a psychiatrist on three occasions. Having taken into account the matters referred to in s. 60E (a) - (h) the Master was satisfied that the plaintiff had discharged his onus of establishing reasonable grounds to extend the limitation period under s. 60C and E against the defendant.

41 In relation to the first defendant, s. 151D of the Workers' Compensation Act 1987 (NSW) relevantly provides:-

"(1) …
(2) A person to whom compensation is payable under this Act is not entitled to commence Court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received except with the leave of the Court in which the proceedings are to be taken.
(3) The Limitation Act 1969 does not apply to or in respect of Court proceedings to which this section applies.
(4) …"

42 Having noted that the Deed of Agreement entered into by the plaintiff and the first defendant on 15 July 1994 exempts proceedings taken under the Workers' Compensation Act 1987, for considerations identical with those taken into account in determining the plaintiff's application under s. 60C and E of the Act excepting therefrom subs. 60E (1)(b) the Master formed the view that it was just and reasonable to extend the time for commencement of proceedings and granted leave accordingly. The requirement that a Further Statement of Claim be filed was dispensed with and an order was made that costs of the application be costs in the cause.

43 Paragraphs 2 and 3 of the judgment of Master Harrison read as follows:-

"The plaintiff's counsel submitted that in the pleadings paragraphs 6 to 11 of the Statement of Claim inclusive do not need an extension of time. The pleadings in paragraphs 6 to 8 refer to a breach of contract. The damages are those which arise from the breach or breaches of contract. Paragraph 9 refers to a conspiracy and paragraph 10 to intimidation."

44 At paragraph 3:-

"If an extension of time is required for paragraphs 6 to 11 of the Statement of Claim the application for same is stood over to be determined at the trial. The circumstances in which the plaintiff entered into the Deed of Agreement dated 15 July 1994 may need to be canvassed."

45 Paragraphs 6, 7 and 8 of the Statement of Claim plead breach of the plaintiff's contract of employment with the first defendant. Paragraph 9 is a count founded upon the tort of conspiracy. Paragraph 10 is an alternative count founded upon the tort of intimidation. Paragraph 11 is a further allegation of breach of contract. However, the gist of the plaintiff's claim is an action for special, general, consequential and exemplary damages for personal injury of a psychiatric and psychological nature.

46 Section 18A of the Limitation Act is expressed as follows:-

"18A (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to:
(a) a cause of action arising under the Compensation to Relatives Act 1897; or
(b) a cause of action that accrued before 1 September 1990.
(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims."

47 In the definition section i.e. section 11 (1) of the Limitation Act 1969, "breach of duty" is defined as follows:-

"' Breach of Duty', when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty (whether arising by statute, contract or otherwise), and includes trespass to the person."

48 Accordingly, it is properly conceded by Counsel for the defendants that for present purposes there is no distinction to be drawn between a breach of the contract or a breach of duty of care of a tortious nature.

49 The Deed of Release was executed by the plaintiff and the first defendant on 15 July 1994. The Statement of Claim was filed on 9 July 1997 i.e. some six days prior to the expiration of the three year period. Hence, as I understand the plaintiff's position in relation to paragraphs 6 to 11 of the Statement of Claim to the extent they relate to causes of action arising out of the execution of the Deed of Release. They are within time.

50 The evidence placed before the Master and relied upon in the present proceedings before this Court does not touch upon the circumstances under which the plaintiff executed the Deed of Release. In those circumstances it was, in my view, not inappropriate for the Master to stand over to the trial limitation questions which may relate to the circumstances under which the Deed of Release was executed.

51 The plaintiff claims that the injury upon which he sues occurred on 27 May when he experienced a "nervous breakdown". In the submissions made by the defendants this period of delay is sought to be extended by some six and a half months to the time when the plaintiff first experienced chest pains. There is no suggestion made on behalf of the defendants that prejudice or additional prejudice flowed to them as a result of this additional period, even if it were to be taken into account.

52 A number of the elements referred to in s. 60E (1) are adversely commented upon by Mr Enright in his written submissions, culminating in the submission that the Deed of Release releases the Club entirely. I shall return to this submission.

53 The defendants' application to strike out all or part of the Statement of Claim is recognised by Counsel as overlapping to some extent the matters relied upon in the appeal from the decision of the Master.

54 The submission is made on behalf of the defendants that central to the enlargement of time in which to bring proceedings are the threats made to the plaintiff against his person which, so the submission runs, are not referrable to the alleged conspiracy and in so far as they relate to his co-operation with the Liquor Board and the giving of testimony, have not been connected by evidence to the defendants. Hence it is argued that counts relying on the alleged threats cannot be maintained.

55 I reject this submission. Whether the threats upon which the plaintiff relies can be sheeted home to the defendants, and which if any of them, is a matter which may be established by inference derived from surrounding circumstances and is a matter for determination at trial. The same considerations apply to the alleged tort of conspiracy.

56 With regard to the alleged tort of intimidation, it is submitted that this tort is not complete until the recipient of the threat or threats has submitted to the intimidation. The plaintiff having given the evidence and afforded the co-operation, the submission is made that the tort has not been perfected.

57 The elements of an action founded upon the tort of intimidation are described in the Law of Torts Balkin and Davis, 1991 Ed. at 648 as follows:-

"There are three elements to this action:
(1) that the defendant has made a demand, coupled with a threat to either the plaintiff or a third party;
(2) that the threat is to commit an unlawful act; and
(3) that the person threatened complied with the demand, thereby causing loss to the plaintiff."

58 It is the third element abovementioned upon which Counsel for the defendants relies to establish that this cause of action cannot be maintained by the plaintiff.

59 At 652 of the text appears the following:-

"The third element of the tort is that the person threatened must submit to the demand made of him by the defendant. If he does not comply, but instead stands up to the threats, the defendant will have failed to effectuate his intention of causing harm to the plaintiff; the latter will not have suffered any loss - at least, not by reason of the defendant's intimidation."

60 The authority cited for this proposition is Stratford & Son Ltd. v Lindley & Ors. (1964) 2 All ER 209. This is a decision of the English Court of Appeal where at 215, Lord Denning M.R. said this:-

"The fifth point is whether the defendants were guilty of the tort of intimidation. Such a tort has long been known in cases of threats of violence. If one man says to another, 'I will hit you unless you give me five pounds', or 'unless you give the cook notice', or 'unless you stop dealing with your butcher', and the party so threatened submits to the threat by paying over the five pounds or by giving notice to the cook, or by ceasing to deal with the butcher, then the party damnified by the threat - the payer of the five pounds, or the cook or the butcher, as the case may be - has a cause of action for intimidation against the person who made the threat. But it is essential to the cause of action that the person threatened should comply with the demand. If he has the courage to resist it, and replies saying, 'you can do your worst. I am not going to pay you five pounds', or 'I am not going to give notice to the cook', or 'I am not going to stop dealing with the butcher', then the party threatened has no cause of action for intimidation. Nor has the cook. Nor the butcher. For they have suffered no damage by the threat ." (Emphasis added)

61 On one view, the gist of the third element of the tort of intimidation is the suffering of damage. In the present case where the plaintiff's damage lies in suffering a personal injury it seems to me at least arguable that the tort of intimidation was perfected when the plaintiff suffered the psychiatric and psychological injury he claims to have experienced and that, at that stage, the tort is perfected. The point being at least arguable, in my view it is inappropriate to strike out the pleading.

62 The main thrust of the strike out application, as I understand the argument, is that the whole of the plaintiff's claim is a claim at common law and, even so far as the first defendant as employer is concerned, the claim is not one arising under the Workers' Compensation Act which statute does no more than limit the way in which damages are to be assessed.

63 Such a construction would not seem to me to accord with the way in which the Workers' Compensation Act 1987 has been understood to operate since its inception, but I am not prepared to say that a defence of the nature outlined is unarguable. It does not, however, give rise to a strike out point. The application to strike out the plaintiff's Statement of Claim in whole or in part must be dismissed.

64 Returning to the appeal, this is a case where no fresh evidence has been called such as would warrant departure from the Master's primary findings of fact, nor has any flaw been demonstrated in her fact finding or the inferences drawn. In those circumstances the facts found and the inferences drawn by the Master are to be followed by this Court. In my view the exercise of the Master's discretion to enlarge the time in which the plaintiff is able to bring proceedings has not been established to be erroneous and the appeal must be dismissed.

65 The Master ordered that the costs of the application before her should be costs in the cause.

66 The plaintiff was obliged to bring the proceedings to extend time. The extension of the period of limitation with regard to the majority of the causes of action pleaded was necessary. The defendant was in no way at fault in this regard and should not be at risk of penalty as to costs of the application which the plaintiff found to be essential. The costs order made by the Master effectively places the defendants at risk as to costs of the application to extend time and in so ordering the Master fell into error.

67 I make the following orders:-

1. The appeal is dismissed except as to the order as to costs.

2. The costs of the hearing before Master Harrison will be the
defendants' costs in the cause.
3. The defendants' application to strike out the plaintiff's Statement of Claim is dismissed.

I will hear argument on costs of the strike out application and the appeal.

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Last Modified: 12/15/2000