Flemming v Gibson

The appeal in Flemming v Gibson involved the respondent, who had been injured in a motor vehicle accident at the age of 10, and the appellant, who sought to bar the respondent's claim for damages on the basis that it had been issued over three years after she turned 18. The High Court was asked to determine whether the respondent had been under a disability within the meaning of section 29 of the Limitation of Actions Act 1974, specifically whether she had been mentally incapacitated to the extent that it postponed the bar of the limitation period. The court was also required to consider whether an estoppel arose due to an earlier unsuccessful application to extend the limitation period, and whether the claim was barred under the principle in Port of Melbourne Authority v Anshun Pty Ltd.

The court found that the disability relied upon was "unsoundness of mind," which required the respondent to establish a mental illness that produced incapacity to manage her affairs in the manner of a reasonable person. The court examined conflicting expert evidence and held that the finding of disability was reasonably open on the evidence as a whole. The court further found that there was no estoppel arising from the earlier unsuccessful application to extend the limitation period, and that the claim was not barred under the principle in Port of Melbourne Authority v Anshun Pty Ltd.

The appeal was dismissed with costs, and the respondent's claim was allowed to proceed. The court held that the respondent had been under a disability within the meaning of the Limitation of Actions Act 1974, and that the limitation period had been postponed accordingly. The court's decision highlights the importance of establishing the nature and extent of a disability in order to postpone the bar of the limitation period, and the need for careful consideration of expert evidence in such cases.