Calder v Uzelac - [2003] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8911 of 2001

MARGARET CALDER
	v.
JOHN UZELAC

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JUDGES:	BUCHANAN and CHERNOV, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 September 2003
DATE OF JUDGMENT:	14 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 175

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Limitation of actions – Application for leave to issue proceedings out of time – Knowledge of “material facts” – Extent of injury – Psychological injury – No failure to take all reasonable steps to ascertain extent of injury – Discretion to refuse leave – Application refused due to passage of 31 years and occurrence of other events potentially affecting the applicant’s mental health

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.H. Solomon	Christopher Bunnett
For the Respondent	Mr M.J.G. Gorton	Phillips Fox

BUCHANAN, J.A.:

This is an application for leave to appeal from the refusal by a County Court judge of an application by the applicant pursuant to s.23A of the Limitations of Actions Act 1958 (“the Act”) to extend the time within which she could bring an action against the respondent for damages for psychological injuries she alleges she sustained as a result of assaults upon her by the respondent.

The parties are brother and sister. The applicant gave evidence in support of her application. She deposed that in 1972, when she was 13 years old and the respondent was 18 years old, the respondent had sexual intercourse with her on four occasions. Her grades at school, which had hitherto been average, thereafter markedly declined until she left school at the age of 15 years. At the age of 17 years the applicant gave birth to a son, who was adopted. The applicant then left Victoria and lived in Western Australia, where she worked in nightclubs and in an illegal casino where she sometimes had sexual intercourse with customers. She formed a relationship with a Japanese seaman and as a consequence travelled to Japan. At the age of 21 the applicant met a Vietnamese man and moved with him to Sydney. The applicant began a beauty salon business in Sydney, but the business failed. The applicant’s relationship with the Vietnamese man ended in 1992. Three years later the applicant met her husband, whom she married in 1998. The applicant told a psychologist that her parents separated when she was 11 years old and that her brother died as a result of an overdose of heroin.

The applicant returned to Melbourne in 1996 and visited her mother at the house she had lived in when she was assaulted by the respondent. The applicant deposed that “The visits revived my memories particularly on several occasions when John was also present”, although she said that her memory was “very dim”. The applicant said that after 1996 the events of 1972 played on her mind. She began to have nightmares and realized that she required professional help. She saw Dr Kardaras, a psychologist, in July 2000. She said:

“Until then all I could remember was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Calder v Uzelac

Details

AGLC: Calder v Uzelac [2003] VSCA 175
Case: [2003] VSCA 175
Decision Date: 14 November 2003

CaseChat Overview and Summary

The case of Calder v Uzelac involved an application for leave to issue proceedings out of time, concerning the limitation of actions. The applicant, Calder, sought to bring a claim against Uzelac, alleging that Uzelac was negligent in performing medical treatment. The dispute centred around whether Calder had knowledge of the "material facts" required to initiate the proceedings within the statutory time limit. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the applicant had knowledge of the material facts of the case at the time the limitation period expired. The court needed to determine whether Calder knew or ought to have known the extent of the injuries she suffered, which included psychological harm, and whether this knowledge triggered the commencement of the limitation period. Additionally, the court had to assess whether Calder had taken all reasonable steps to ascertain the extent of her injuries and if so, whether this excused the delay in commencing proceedings.

The court found that Calder did not have knowledge of the full extent of her injuries at the time the limitation period expired, as she only became aware of the psychological impact of the treatment much later. However, the court held that Calder had not taken all reasonable steps to ascertain the extent of her injuries, which would have led to an earlier discovery of the full extent of her harm. The court further reasoned that despite this, the delay in bringing the proceedings was so significant, at 31 years, and other intervening events had potentially affected Calder’s mental health, that it was just and equitable to refuse leave to issue the proceedings out of time. The court exercised its discretion to refuse the application, emphasizing the substantial passage of time and the potential impact of other events on Calder’s mental health.

The Supreme Court refused the application for leave to issue proceedings out of time, based on the substantial delay and other intervening events affecting the applicant’s mental health.

Orders