Hornby v The Nominal Defendant

[2007] NSWCA 222

Appeal Outcome: Matter discontinued in the High Court 18 April 2008

New South Wales

Court of Appeal

CITATION:	Hornby v The Nominal Defendant [2007] NSWCA 222
HEARING DATE(S):	21 May 2007
JUDGMENT DATE:	29 August 2007
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Tobias JA at 14
DECISION:	(a) Leave to appeal granted subject to the claimant filing her notice of appeal within 14 days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by Judge Hughes on 7 July 2006; (d) Pursuant to s 60G(2) of the Limitation Act 1969, the limitation period for the cause of action pleaded by the claimant in her Statement of Claim filed in the District Court on 16 November 2005 be extended up to and including 16 November 2005; (e) The costs of the Notice of Motion filed on 28 February 2006 to be the opponent’s costs in the cause; (f) The opponent to pay the costs of the summons for leave to appeal and of the appeal
CATCHWORDS:	LIMITATION OF ACTIONS – Extension of period – Power of court to extend time – Whether just and reasonable to extend limitation period – Whether significant actual and/or presumptive prejudice to the defendant – Weight to be given to prejudice that arose before the expiry of the limitation date as against prejudice arising after the expiry of the limitation date - Limitation Act 1969, ss 60F, 60G(2) and 60I(1)(a).
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Barker v Wingo (1972) 407 US 514 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Commonwealth of Australian v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 Commonwealth of Australia v Smith [2005] NSWCA 478 Fletcher v Besser [2004] NSWCA 132 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 House v The King (1936) 55 CLR 499 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Purkess v. Crittenden (1965) 114 CLR 164 Smith v Morton (2004) 40 MVR 347; [2004] NSWCA 84. Watts v. Rake (1960) 108 CLR 158 Wayne Souer v Allianz Australia Insurance Ltd [2006] NSWCA 364
PARTIES:	Vicky Hornby The Nominal Defendant
FILE NUMBER(S):	CA 40464/06
COUNSEL:	Cl: J Sleight Opp: A Bridge SC / I McGillicuddy
SOLICITORS:	Cl: Clinch Neville Long Lawyers, Sydney Opp: J M Crestani & Associates, Parramatta
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4957/05
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	7 July 2006

CA 40464/06
DC 4957/05

MASON P
HODGSON JA
TOBIAS JA

Wednesday 29 August 2007

VICKY HORNBY v THE NOMINAL DEFENDANT

Judgment

1 MASON P: I agree with Tobias JA.

2 HODGSON JA: The circumstances giving rise to this appeal, the issues it raises, and the submissions of the parties are comprehensively set out in the judgment of Tobias JA.

3 I agree with Tobias JA that the primary judge did not provide adequate reasons for his decision, that the intervention of this Court is justified, and that this Court should exercise for itself the discretion referred to in s.60G(2) of the Limitation Act 1969 (the Act).

4 The evidence relevant to the exercise of that discretion is carefully set out by Tobias JA. However, on that evidence I have reached a conclusion different from his; and having regard to the comprehensiveness of Tobias JA's judgment, I believe I can best express my reasons by focusing on the matters in respect of which I respectfully disagree with him.

5 In my understanding, it was submitted for the opponent that at least presumptive prejudice also followed from the plaintiff being an unreliable historian, this being important not so much in relation to the accident itself as in relation to the overall story of her life. It was submitted that there were any number of stressors affecting the plaintiff over many years, prior to the accident as well as over the 25 or 26 years following the accident; and that while the general nature of at least many of these stressors was clear, there were substantial difficulties with what could be proved as primary facts concerning these stressors and the claimant's reaction to them, both because memories fade and because of the difficulty of identifying witnesses able to give evidence about these matters and of getting reliable evidence from them as to the plaintiffs history over these years. It was submitted that these factors, as well as the absence of early psychiatric or psychological examination and absence of documents, would prejudice the opponent in discharging the evidentiary onus of disentangling causes of the claimant's problems, in terms of the principles established by Watts v. Rake (1960) 108 CLR 158 and Purkess v. Crittenden (1965) 114 CLR 164. Mr. Bridge SC for the opponent relied generally on what was said by Basten JA in Commonwealth of Australia v. Shaw [2006] NSWCA 209 at [78]-[85].

6 I respectfully do not agree with Tobias JA that the loss of opportunity for early psychiatric or psychological examination carries minimal if any weight, that little weight should be given to the absence of records, or that the opponent's claim in terms of its sustaining significant prejudice if the limitation period is now extended has been confined-to a period well prior to 1988; and in any event, for reasons given in the previous paragraph, I do not agree that these were the only matters of prejudice relied on.

7 It is true that the limitation period in this case did not expire until 1994, and that accordingly, until that time, the claimant could have brought a case against the opponent irrespective of prejudice associated with the loss of evidence, because that was the line drawn by the legislation to determine the time limit within which the case could be brought irrespective of prejudice. But as stated by McHugh J in Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 548-9 and 554-5, when a plaintiff seeks to bring a case beyond such a limit, fairness to the defendant is to be assessed having regard to prejudice caused by the whole delay from the occurrence giving rise to liability; and even though I adhere to the view I expressed in Smith v. Morton [2004] NSWCA 84 at [38]-[39] that greatest weight is to be given to prejudice occurring after the expiry of the limitation period, this does not mean that prejudice from earlier delay is to be treated as of little significance.

8 The crucial questions that would need to be addressed, if the claimant's case went ahead, are (1) whether the claimant is suffering from PTSD or some other identifiable psychiatric disorder; (2) if so, whether the accident materially contributed to that condition; and (3) if so again, what damages would appropriately compensate her for the effects of the accident. The prejudice that needs to be considered in connection with her application relates particularly to the second and third of these questions.

9 It is plain that there are many features of the claimant's life over a period in excess of 25 years that may well have contributed to any such psychiatric disorder as the claimant may be found to have. In my opinion, there is significant actual and presumptive prejudice to the opponent surrounding the proof of primary facts concerning the claimant's life from prior to 1981 up to the present, which are relevant to determining the nature, extent and effects of all those stressors, so as to provide a factual basis on which psychiatric opinions could be based; and thus actual or presumptive prejudice to the opponent in discharging the evidentiary onus under Watts and Purkess to disentangle causes so as to exclude the accident as a materially contributing factor, or to reduce damages by showing a substantial probability, in accordance with Malec v. J.C. Hutton Pty. Limited (1990) 169 CLR 638, that some similar psychiatric disorder would have occurred even without the accident.

10 In my opinion, the circumstance that the experts called by the opponent were able to express the view that the plaintiff was not shown to have a psychiatric disorder and/or that any such disorder as she may have had was not shown to have been caused by the accident, does not count against this. The experts did refer to difficulties due to the passage of time; and while the problems to which they explicitly adverted concerned the lack of documents rather than the lack of witness evidence of primary facts, it is obvious that after 25 years, documents would be a far more reliable source of material than witness evidence.

11 It is true that the absence of documents and the paucity of evidence as to primary facts is a matter that counts against the complainant as well as raising difficulties for the opponent; but, as pointed out by Basten JA in Shaw, particularly at [83]-[84], apparent weakness of a plaintiff’s case is a factor militating against an extension on of time rather than in favour of it. In so far as absence of evidence raises difficulties for a defendant in discharging its evidentiary onus concerning disentangling causes, this remains a significant factor weighing against the grant of an extension of time.

12 The claimant has had a life of enormous adversity, and the accident was a horrific event in that life. However, to determine whether this accident, occurring 26 years ago in a life with many other adverse events of comparable severity, materially contributed to any such mental disorder as the claimant now has, and if so, what damages would appropriately compensate her for the effects of that accident, would be an enormously difficult task even if good evidence of relevant matters was available.

13 Having regard to the deficiencies in evidence now available I do not think a trial fair to the opponent is likely; and while I would grant leave to appeal, I would dismiss the appeal with costs.

14 TOBIAS JA: On 15 February 1981 the claimant, being 10 years old at the time, was a passenger in the backseat of a motor vehicle driven by her father. The other passengers in the vehicle were her mother, who was sitting in the front passenger seat and her younger brother who was sitting behind her mother. The vehicle was unregistered and uninsured. At the time of the accident the claimant’s father had been disqualified from driving.

15 The vehicle was being driven at 60-70 kph when it collided with the rear off-side of a gas tanker carrying liquid petroleum which was correctly parked with its hazard lights operating (the accident).

16 The tray of the tanker was forced at head height through the near side of the vehicle in which the claimant was travelling, resulting in serious injuries to her mother and brother. Both her father and mother were drunk. In particular, her father had a blood alcohol level approximately three times the legal limit. Physically, the claimant only suffered minor abrasions.

17 The claimant’s mother and brother received extensive head injuries as a result of the accident. The claimant observed that her mother’s head was covered with blood and glass and that her brain and eye socket were exposed. The mother was removed from the vehicle and was taken to hospital where she later died. The claimant’s brother was unconscious with his head lying in her lap. He was also covered in blood and had a scalp wound exposing his brain which was bleeding profusely. He also had a beer bottle stuck between his teeth. The claimant’s brother died two days later in hospital in her presence after his life support was removed at her father’s direction.

18 The claimant maintains that as a consequence of the accident she suffers chronic Post Traumatic Stress disorder (PTSD) arising from the traumatic death of her mother and brother.

19 After the accident the claimant continued to live with her father and two of her surviving brothers. However, just prior to the accident, the claimant’s older brother, who had been sexually abused by her father, had been abused by one of his friends. He had reacted by cutting off his friend’s penis, causing him to bleed to death. The older brother was thereafter convicted of murder and gaoled for a lengthy period.

20 From approximately May 1981 (when she was 10 years old) until 2005 (when she was 35 years old), the claimant’s life can only be described as one of great deprivation. It is unnecessary to detail the deprivations and humiliations to which she was subjected over this period except to say that she was raped repeatedly by her father as well as by her uncle; she was forced into prostitution and petty crime at the age of 13 or 14; she was forced to escape from her father’s clutches, ending up as a Ward of the State in various institutions; when at the age of 17 she married, she had two children, the second of which suffered from Down’s Syndrome; she was abandoned by her husband (who considered the second child not to be his); she was later raped by her ex-husband when he tricked her into accompanying him to his home. Unsurprisingly, she had no education to speak of. In or about September 2004 she came into contact with a group called Care Levers of Australia Network at Bankstown (CLAN) to whom she recounted her family history. In particular, she advised the counsellor of the facts surrounding the accident in terms of the death of her mother and brother.

21 The claimant had originally contacted CLAN for assistance in finding her step-sister. After she told the counsellor her life story, including how her mother and brother had died, the counsellor telephoned a solicitor, Mr Owen, to obtain advice as to whether she had a claim for damages arising out of the accident. Prior to meeting Mr Owen the claimant asserted that she was unaware that she had suffered a personal injury in the nature of a psychiatric or psychological injury from experiencing the death of her mother and brother as a result of the accident.

22 Mr Owen arranged for the claimant to be interviewed by a consultant psychiatrist, Dr C A Canaris, who provided a report dated 8 October 2005. A copy of the report was sent to the claimant who after reading it only then became aware, so she deposed, to the fact that she had suffered a psychiatric injury from seeing and experiencing the death of her mother and brother in 1981. She then gave instructions to Mr Owen to institute proceedings against the Nominal Defendant, which resulted in a Statement of Claim being filed in the District Court on 16 November 2005.

23 On 21 December 2005 the opponent filed a defence in which it pleaded that the claimant’s action was statute barred pursuant to the provisions of the Limitation Act 1969 (the Act).

24 On 28 February 2006 the claimant filed a Notice of Motion seeking an order pursuant to s 60G(2) of the Act that the limitation period in respect of the cause of action pleaded in the Statement of Claim be extended up to and including the date upon which it was filed. Judge Hughes heard the Notice of Motion on 7 July 2006 at the conclusion of which he dismissed the Notice of Motion and ordered the claimant to pay the opponent’s costs. It is against that order that the claimant seeks this Court’s leave to appeal. The summons for leave has been heard concurrently with the appeal itself.

The decision of the primary judge

25 The primary judge noted that 25 years had elapsed between the time the Statement of Claim was filed and the date of the accident. The injury in respect of which the claimant was seeking damages was, in essence, confined to the allegation that she was suffering from a mental illness diagnosed by Dr Canaris as chronic PTSD. His Honour acknowledged that before the Court could make an order under s 60G, it was required by s 60I(1) to be satisfied that

“(a) the [claimant]:
(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the [opponent’s] act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within three years after the [claimant] became aware (or ought to have become aware) of all three matters listed in (a)(i)-(iii).”

26 The primary judge determined that he was satisfied that the claimant had passed the “gateway” referred to in s 60I(1)(a) and that she had complied with sub-paragraph (b). In fact he expressed the opinion that he was unsure that the claimant was aware that she was suffering any injury as a result of the accident and, in particular, that he was not sure that she actually accepted that she was suffering from some kind of mental illness.

27 His Honour noted the claimant’s evidence that she appeared to be blaming her father for killing her mother and brother in the accident and that the loss of her mother was the loss of a person who could have protected her from the dreadful events to which she had been subjected for many years before and after the accident.

28 In so finding that the threshold referred to in s 60I had been satisfied, his Honour relevantly applied to this issue the test adumbrated by Handley JA in Commonwealth of Australia v Smith [2005] NSWCA 478 where (at [7]) his Honour posed the question raised by s 60I(1)(a) as being

“whether the victim was aware that he or she suffered from a recognisable psychiatric illness”.

Handley JA continued (at [16]) in these terms:

“Thus the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by ‘professional medical opinion’. Accordingly a plaintiff, such as Mr Smith, who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury.”

29 In the same case, Santow JA (at [104]) observed:

“The section (s 60GI(1)) focuses in a case such as this on the capacity of someone suffering mental injury to become aware that his symptoms, even distressing ones, represent a psychiatric condition: that is to say, using the language of the statutory definition of ‘ personal injury ’, to become aware that they represent ‘ impairment of [his] … mental condition ’. “

30 Basten JA expressed himself in the following manner (at [181]):

“In reality, the question faced by each of the applicants … is not whether they are unaware of the nature and extent of the injury, in the sense of its symptoms and manifestations, but whether they are aware they had an illness at all. If they did not, prior to diagnosis, then the proper conclusion should be that they did not know that ‘personal injury had been suffered’. In other words, the authorities appear to support the proposition that, at least in the case of mental impairment, diagnosis and identification by a technical name or description, being one accepted by psychiatrists or psychologists, may in fact be an essential element of the relevant level of awareness. That is in part because the Limitation Act should be understood as picking up the concept of ‘personal injury’ in the sense necessary to constitute a basis for a claim for damages which, in the case of a mental condition, must be a cognisable psychiatric illness. Approached in this way, the cases dealing with physical conditions may be understood as holding that the ‘nature and extent’ of an injury may be known without knowing the relevant medical label. In the case of a mental condition, the question is whether the victim is aware that he or she suffers from a cognisable psychiatric illness (which may involve knowledge of its name) for the purposes of sub-paragraph (a)(i).”

31 In the present case, his Honour had no difficulty in finding that prior to becoming aware of the diagnosis of Dr Canaris the claimant did not know that she had suffered a personal injury, being PTSD.

32 I interpose here that the opponent requested the Court to treat as a notice of contention, its challenge to the primary judge’s finding that he was satisfied of the matters set out in s 60I(1)(a). It submitted that it was the material facts, and not the labelling of those facts by medical diagnosis, which was critical so that if the claimant had various signs and symptoms that a reasonable person in her position would know, it was unnecessary that she should also be aware that she was suffering from a diagnosed, recognisable psychiatric condition. It was sufficient if the claimant, or a reasonable person in her position, would be aware that her various signs and symptoms had the potential to constitute a mental illness.

33 In fairness to the opponent, it conceded during the course of oral argument that these submissions could not be maintained if this Court was to follow its own decision in Smith. In my opinion, not only the judgment of Handley and Santow JJA in that case but also that of Basten JA supports the proposition that the question raised by the threshold in the present case was whether the claimant was aware that she suffered from a cognisable psychiatric illness, which she clearly was not. In this respect there was no challenge to her evidence that she only became aware for the first time that she was suffering from PTSD when she read Dr Canaris’ report. Accordingly, the opponent’s challenge to the primary judge’s finding that the claimant had satisfied the threshold should be rejected.

34 The primary judge then proceeded to consider the exercise of the discretion vested in him by s 60G(2) to determine whether it was just and reasonable to extend the limitation period. He acknowledged that the onus lay upon the claimant to satisfy him that the discretion should be exercised in her favour. To discharge that onus the claimant had to establish that the opponent would not be significantly prejudiced as a result of the commencement of the action beyond the limitation period.

35 After citing a number of passages from the judgments in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, his Honour noted the opponent’s submission that due to the effluxion of time there was no longer medical evidence available from general practitioners consulted by the claimant or from school authorities (which would have included school reports and other similar matters) which might have had a bearing upon the claimant’s behaviour within a reasonable period of time after the accident and which would have revealed her emotional state at that time.

36 Thus, Dr J Sydney Smith, a psychiatrist retained by the opponent to comment upon the documentary evidence relied on by the claimant to support her application but who had not interviewed the claimant, in his supplementary report dated 18 May 2006 observed in a passage recorded by the primary judge, that

“… in order to determine properly whether Miss Hornby suffered a PTSD after the accident it would be necessary to establish that there was a qualitative or quantitative change in her emotional state in the days, weeks or months following the event. To do so it would be essential to examine any documentary evidence that might attest to any change in her emotional state, behaviour or functioning. Such information is usually found in the reports of treating doctors, in School Reports, and in particular the Confidential Pupil Record Card. No such information has been available to me.”

37 In the same report Dr Smith summarised his conclusion in the following terms:

“In summary the additional documentation does not support a diagnosis of Chronic PTSD having occurred. The most reliable means of establishing the diagnosis would have been to have her examined by a psychiatrist shortly after the accident. Confirmation of any psychiatric disorder rather than a normal grieving process could be obtained by examining documents that related to a condition both before and after the accident, such as the notes of her general practitioner, her School Reports and the Confidential Pupil Record Card. In the absence of such evidence her claim cannot properly be evaluated.”

38 The opponent also sought the views of Mr Dino Cipriani, clinical psychologist, who in his second report dated 13 May 2006 observed in a passage also cited by the primary judge that on the basis of the documents he had reviewed, he had been

“unable to establish any clear relationship between the accident and subsequent emotional behavioural problems. In order to establish such a relationship one would need to have examined Miss Hornby soon after the 1981 accident when any trauma symptoms would have been most evident. Unfortunately there is little documentation relating to Ms Hornby’s emotional state between 1981 and 1983. Subsequent traumas make it extremely difficult to retrospectively assess whether any abnormal grief reaction or other psychiatric disorder was caused by the car accident without the benefit of psychiatric or psychological examination at that time.“

39 The primary judge then noted that Dr Smith had not gone so far as to say that a psychological or psychiatric examination was necessary but that such information was usually found in the reports of treating doctors, in School Reports and in particular in the Confidential Pupil Record Card. His Honour then observed that there were, in fact, statements from the Department of Community Services (DOCS) attesting to the difficulties that the claimant was having. Without further ado he then concluded in these terms:

“However, I am not satisfied that the plaintiff has discharged the onus of discharging that the prejudice to the defendant is such that I ought to exercise a discretion and extend the limitation period.”

The submissions on the appeal

40 No issue was raised by the opponent with respect to the question of liability. The only issue in dispute between the parties was first, whether the claimant was suffering PTSD and second, if so, whether her father’s negligence had caused that condition or materially contributed to it. In this respect it must be noted that both Dr Smith and Mr Cipriani in their very lengthy and detailed reports, had before them a plethora of documentary material which included police statements of witnesses to the accident in 1981 together with a report of Ms R Beilby, a psychologist employed by DOCS, dated 15 August 1983 who had interviewed the claimant with respect to a complaint that she was uncontrollable; a report of Dr Robin Haig, consultant psychiatrist, dated 24 April 1996 and addressed to the claimant’s general practitioner, Dr P Sarathy, in which he had diagnosed the claimant (who was then 25 years old) as suffering from a depressive disorder; a report of Dr V Khanna dated 4 January 2005, who had seen the claimant when she was admitted to Liverpool Hospital after the accident; and a report of Ms R Napier, psychologist, dated 8 January 2001, to whom the claimant had been referred for a psychological assessment as a result of being sexually assaulted by her husband on 7 August 2000.

41 Dr Haig noted that the claimant had described to him a disastrous childhood with a drunken father and an alcoholic mother and that the she had maintained that her father had killed her mother and brother in the accident when she was 10 years old and a passenger in the car at the time. Dr Haig diagnosed the claimant as suffering from a distress disorder observing that it was

“not clear what has precipitated this condition, although major factors in her earlier life included a sexually and physically abusive father, loss of mother at the age of 10 years, and loss of her 12 year old brother also who was very close.”

42 Having reviewed all the available documentary material, Dr Smith in his report dated 27 April 2006 accepted that the claimant was suffering from Borderline Personality Disorder but not from PTSD. For the purpose of so concluding Dr Smith noted that when Ms Beilby saw the claimant in August 1983, there was no mention of any features suggesting that she was suffering from PTSD and that whilst psychological testing showed that she was tough-minded and tended to act out and was emotionally labile, it did not show any extremes of emotion.

43 Dr Smith also referred to Dr Haig’s report noting that the claimant apparently did not mention any anxiety or stress symptoms to him although Dr Haig did consider that she had depression which was not severe. He also noted that in Ms Napier’s report there was no reference to any past history of anxiety or stress symptoms, Ms Napier having specifically noted that the claimant showed no anxiety during her interview.

44 On reviewing Dr Canaris’ report in which he had opined that the claimant suffered chronic PTSD as a result of the accident, Dr Smith observed that if that was so the claimant should have exhibited the acute symptoms of the disorder immediately after the accident in the form of intrusive thoughts, flashbacks and nightmares of the event and of phobias associated with panic attacks. Further, such symptoms should have continued, albeit in an attenuated form, with preoccupation of the events of the accident. Dr Smith noted that she complained of no such symptoms when seen by Dr Haig in 1996 and that although she did complain of stress symptoms when seen by Ms Napier in 2000, she had indicated that these had commenced when she had been raped four months previously. Accordingly, he did not accept that the claimant was suffering chronic PTSD or indeed any psychiatric disability as a result of the accident. Although she no doubt suffered grief, there was no evidence that would indicate that this was pathological in either its intensity or longevity.

45 As I have indicated, Mr Cipriani assessed the same documents. He noted that the accident was only one of the many traumas the claimant suffered during her life and that she had suffered repeated physical and sexual abuse, rape and neglect at the hands of her father, uncle, ex-husband and others after the accident and that these traumas were probably responsible for her continuing emotional and behavioural problems which had been documented. He concluded in these terms:

“Ms Hornby had a pre-accident history of academic difficulties, borderline intelligence and sexual and emotional abuse of alcoholic parents. She was therefore at risk of developing psychiatric disorder irrespective of the accident. She was traumatised by the subject accident and may have developed some trauma symptoms, but it is not clear whether she developed any psychiatric disorder such as post-traumatic stress disorder or Adjustment Disorder as a result of the accident on the available information. It is clear that she was re-traumatised following the accident by repeated rapes, physical and emotional abuse and neglect as a result of which she developed features of Conduct, Antisocial and Borderline Personality Disorder and depression. Subsequent emotional and behavioural changes were most likely due to a post-accident trauma and neglect rather than the accident. … It is likely that the abuse and neglect that she experienced would have occurred irrespective of the accident given the history of parental alcoholism, paternal violence, prior sexual abuse and neglect, antisocial and criminal behaviour in family members and generally dysfunctional family relationships.”

These findings were confirmed by Dr Smith and Mr Cipriani in their respective second reports to which I have referred.

46 The claimant accepted that she had the positive burden of demonstrating that the facts of the case were such as to constitute a justifiable exception to the usual rule that the discretion referred to in s 60G(2) would not be exercised in her favour where significant prejudice was established which would lead the Court to the view that that prejudice would be occasioned to the opponent if time was extended.

47 It was submitted that the substance of the opponent’s case was one of actual prejudice because it was no longer possible for a psychiatrist or psychologist to fairly distinguish between the psychiatric injury experienced or sustained by the claimant subsequent to the accident and any psychiatric illness said to have been caused by the accident. In other words upon the basis that it is accepted that, contrary to the opinion of Dr Smith, the claimant is presently suffering from PTSD or some other recognised psychiatric condition caused by the accident in respect of the determination of which no prejudice to the opponent is alleged, the issue between the parties in respect of which the opponent asserts prejudice (including presumptive prejudice) was the loss of the opportunity to have the claimant examined by a psychiatrist or psychologist within months of the accident and the unavailability of school and other records which might reveal that the claimant was suffering trauma symptoms in the period immediately following the accident.

48 Without that opportunity or the availability of those documents, it was contended that the opponent would be materially prejudiced in disentangling the stressors which gave rise to the claimant’s psychiatric condition, those being the stressor constituted by the accident on the one hand and the numerous stressors which she had sustained as a consequence of the traumas suffered at the hands of her father, uncle and others after the accident.

49 In response the claimant submitted that there would be no prejudice as there was a closed corpus of evidentiary material (including the evidence of the claimant whose credit would be in issue) from which the experts would be required to express their opinions (as they had already done) on whether, assuming the claimant is suffering from PTSD or some other recognised psychiatric illness, that condition was materially contributed to by the accident. There could be no suggestion that there was anything material to that issue in the documents that were said to be unavailable. Further, given that the limitation period provided by s 14(1) of the Act did not expire until 22 October 1994 (being six years after the claimant reached her majority) and this being some 13.5 years after the accident, if proceedings had been commenced within the limitation period it would not have been open to the opponent to complain that it was deprived of the opportunity of having the claimant examined by a psychiatrist or psychologist within, as Dr Smith observed, days, weeks or months following the accident.

50 The opponent submitted that the claimant’s history insofar as it related to her mental state and other relevant matters at the time of the accident, was as material as her behavioural and psychiatric history since the accident. The former was critical to the task of determining the extent to which the accident played a part in her current presentation as opposed to the extent to which one or more of the many other stressors in her life before and since the accident might have been relevant to her current condition. Reference was then made to those stressors which were said to include: abuse by her father at four years of age; repeated rapes by her abusive and alcoholic father after the accident; her addiction to drugs in her early teen years when prostituting herself; sexual assaults by her uncle; her husband’s violence which included sexual assaults on herself and her children; sexual abuse by her brother; and the birth of one of her children with Down’s Syndrome. All of these stressors were well documented. What was not documented was her reaction at the time to the loss of her mother and brother in the accident.

51 The opponent therefore submitted that it would suffer presumptive and actual prejudice. The former arises as the extent to which the claimant could be said to be an accurate and reliable historian of her own life was said to be very much in issue. It was submitted that there are conflicts in the medical and other reports which referred to the claimant’s history and that the passage of time would have weakened or erased the memories of some of those who prepared them which would at the very least alter the nuances and subtleties of the accounts of those witnesses, assuming that they could even be identified and found. The actual prejudice is said to be the absence of proper records with respect to the period prior to and immediately after the accident. It would be impossible for the opponent to obtain a fair trial in the light of what was a complex pre and post-accident history. It was submitted that it was also now impossible to disentangle the many possible causes of the claimant’s mental condition or to identify whether and to what extent the accident materially contributed to it.

52 In essence, the opponent submitted that it was materially prejudiced and could not obtain a fair trial after 25 years due to first, a lack of contemporaneous medical records confirming the claimant’s symptoms flowing from the accident; second, the lack of contemporaneous history to anybody, including DOCS, of symptoms flowing from the accident – even where the effect of other traumas was an issue; and third, the lost opportunity of having the claimant examined closer to the time of the accident when a more accurate objective history of her symptoms, if any, could have been obtained. Accordingly, it was submitted that no error in the exercise by his Honour of his discretion had been demonstrated.

Did the primary judge err?

53 Before this Court is justified in intervening in an essentially discretionary decision, some demonstrable error of the nature of that adumbrated in the well-known decision of the High Court in House v The King (1936) 55 CLR 499 at 504-505 must be proven. But a further error can be demonstrated if there has been a failure by the primary judge to provide reasons or adequate reasons for his decision. In the present case, it is submitted that no such reasons are evident.

54 Although the primary judge recorded the parties’ submissions including the views of Dr Smith and Mr Cipriani with respect to the absence of information relating to the claimant’s emotional state between 1981 and 1983 and which they regarded as necessary to enable them to determine the psychiatric impact of the accident upon her mental condition, his Honour merely concluded that he was not satisfied that the claimant had discharged the onus that the opponent would not suffer prejudice but did not ascribe any reasons for coming to that conclusion.

55 I do not regard a statement relating to the parties’ submissions followed by a one sentence conclusion in favour of one or other of the parties as satisfying the minimum requirement laid down by this Court time and again with respect to the necessity for the trial judge to reveal at least some reasoning process linking the facts and law to his or her conclusion.

56 It is not sufficient in the present case in my view to simply infer that the primary judge came to his conclusion upon the basis that he accepted the opponent’s submissions.

57 Accordingly, in my opinion, error has been demonstrated justifying the intervention of this Court which is clearly in a position, as the parties jointly submitted, to exercise for itself the discretion referred to in s 60G(2).

Will the opponent be prejudiced, either actually or presumptively, by an order extending the limitation period?

58 The principles relevant to the power of a Court to make an order extending time if it thinks such an order is just and reasonable in all the circumstances were articulated in Smith at [122]-[129] by Santow JA, with the agreement Handley and Basten JJA the latter differing from the majority as to their application to the facts of the case. They can be summarised in the following propositions:

(a) Since the purpose of limitation periods is to preclude stale claims which a defendant would find difficult to defend given the effluxion of time, it is prima facie prejudicial to a defendant to allow the commencement of an action outside that period. This is because the defendant suffers presumptive prejudice where an extension of the limitation period is granted.

(b) Although it is a truism that where there is delay the whole quality of justice deteriorates and that such deterioration may in some cases be palpable such as where a crucial witness is dead or an important document has been destroyed, in other cases that deterioration in quality is not recognisable even by the parties. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, cited by McHugh J in Taylor at 551, “What has been forgotten can rarely be shown”.

(c) Nevertheless, presumptive prejudice of itself may not disentitle the plaintiff to the leave sought. Although it may be irrelevant that an order extending time would not put the defendant in any worse off position than it would have been if the action had been commenced within, but towards the end of, the limitation period (Taylor at 554), once the potential liability of the defendant has ended then its capacity to obtain a fair trial, if an extension of time were granted, is relevant and important. To subject the defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. The position is different where a defendant, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact: Taylor at 555.

(d) Where actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice: Taylor at 555.

(e) “Significant prejudice” means such prejudice as would make the chances of a fair trial unlikely. However, for a trial to be fair, it need not be perfect or ideal.

59 The approach adopted by Santow JA in Smith was followed by Basten JA, with whom Handley and Ipp JJA agreed, in Commonwealth of Australian v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209. At 335 [36] his Honour noted that the principles identified by Santow JA in Smith required the application of a test which would disentitle an applicant from an extension of time where actual and significant prejudice would be caused to the defendant in the sense that a fair trial would be unlikely. Nevertheless, as his Honour pointed out at 335 [39], the longer the delay the greater the chance that the defendant will not know what evidence might have been available had the proceedings been brought within the limitation period which, it may be postulated in the present case, might be within, say, five years of the date of the accident.

60 Of some relevance to the present case is the following passage from Basten JA’s judgment (at 336 [40]-[41]):

“40. The Court is also entitled to take into account the strength or weakness of the case presented by the applicant, in terms of the merits of the claim. Were it otherwise, there would be a risk that an applicant with a weak case would have a greater likelihood of an extension of time than one with a stronger case. As the primary judge noted in the relation to the present application, despite various visits to medical practitioners, including psychiatrists, during the period of his service with the Navy, there was no record of complaint, or observation, of symptoms of PTSD being exhibited by the applicant. On the one hand, this may strengthen the applicant’s claim that he did not “know” he had suffered an injury, being a psychiatric disorder, and thereby improve his chances of obtaining an extension of time. On the other hand, the absence of any contemporaneous indication of illness may reduce the likelihood of success if an extension is granted. One element of unfairness to a defendant is to have to expend resources on meeting a weak claim in circumstances where there is little likelihood of recouping any significant part of the costs involved.
41. In the present case, as will be noted below, the Commonwealth expressly relied upon the prejudice to it in establishing, with the necessary degree of precision, any pre-collision level of disability which might constitute a contributing cause of the later condition, in accordance with the principles established in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Those principles underlay the discussion in Smith at [203] and [208]-[210], matters not accepted by the majority of the Court, but not rejected as irrelevant in principle: see Handley JA at [9].”

61 Basten JA’s foregoing remarks have some resonance with the facts of the present case insofar as it was asserted by the opponent that given the opinions expressed in their reports by Dr Smith and Mr Cipriani, the claimant has a weak case both with respect to whether she is in fact suffering from PTSD and, if she is, whether the accident was a materially contributing cause. Thus in Smith (at [203]) Basten JA observed:

“Assuming that Mr Smith suffers from some recognisable mental illness (albeit one in relation to which, despite his claim, he gave evidence that he had never received any counselling or treatment), the question would be whether the collision [between HMAS Voyager and HMAS Melbourne ] caused or contributed to that condition. Other factors in his life and family history may suggest a different cause or causes. It is clearly tenable that, 37 years after the event, it will not be possible to disentangle those circumstances with any sufficient level of confidence in the outcome.”

62 Finally, I would refer to the recent decision of this Court in Wayne Souer v Allianz Australia Insurance Ltd [2006] NSWCA 364. In that case, Beazley JA, with whom Santow and Bryson JJA agreed, referred in some detail to the decision of the High Court in Taylor and to that of a five judge bench of this Court in Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 where Sheller JA had concluded (at 147 [116]) that an applicant could not demonstrate that it was fair and just that leave be granted (to commence proceedings beyond the limitation period) if to do so would result in significant prejudice to the potential defendant. However, in the absence of significant prejudice, there was no reason why the discretion should not be exercised in favour of the applicant.

63 Her Honour then referred (at [31]) to the fact that the essential basis for the prejudice in Holt had been the alleged unavailability of the records of a number doctors whom the applicant had seen regarding her injuries. The insurer in that case had submitted to the trial judge that the applicant had failed to show that all relevant medical records still existed. There were six doctors whose records were in issue. Nevertheless, it had been concluded by Priestley JA in Holt that the materials before the trial judge and the inferences properly to drawn from them were sufficient for a conclusion that the insurer would be able to properly prepare its case for trial with reasonable practicality.

64 Beazley JA then referred to the decision of this Court in Smith v Morton (2004) 40 MVR 347; [2004] NSWCA 84. In that case Hodgson JA, with whom Giles JA and Stein AJA agreed on the point presently relevant, drew attention to the fact that the legislature had, by enacting limitation legislation, drawn a line between cases that could be pursued to finality notwithstanding “vicissitudes that may affect the availability of evidence” and those where, if commenced after the limitation period, the Court needed to be “affirmatively satisfied that it is fair to the defendant to permit” the claim to proceed.

65 Her Honour then cited the following passage from the judgment of Hodgson JA (at [38]) to the effect that it was

“… different where the loss of evidence has occurred by the time when a plaintiff seeks leave to commence proceedings after the expiry of a limitation period: in that circumstance, the loss of the evidence is not merely a realisation of a vicissitude that could equally have affected both parties to litigation proceeding in the normal way, but is a reality existing at a time when the plaintiff has a positive burden of showing that the trial would be fair to the defendant.”

66 At [33] her Honour cited the following further passage from the judgment of Hodgson JA at [39]:

“It is in my opinion consistent with that approach that, in considering applications for extensions of limitation periods, the Court does not look just at the prejudice caused by the passage of time from the expiry of the limitation period to the hearing of the application for extension, but at all prejudice caused by all delay from the time of the events under consideration: see [ Taylor ] at 548-9, 554-5. However, it is also consistent with this approach that the Court gives greatest weight to prejudice occurring after the expiry of the limitation period, and gives greater weight to prejudice arising towards the end of the limitation period than to prejudice arising earlier, which would have been suffered even if the proceedings had been commenced very promptly .” (Emphasis added)

67 Although the facts in Sauer are different to those in the present case in that in the former the missing witness was the driver of the vehicle who had caused but died in the accident so that no prejudice had been caused by delay, nevertheless the following passage from the judgment of Beazley JA (at [36]) is of assistance in the present case:

“The same evidence that was available at all times within the limitation period is available now. Accordingly, any trial that proceeded would not be on any less evidence than would have been the case at the time that the cause of action arose and the limitation period had not expired. Further, to the extent that there needed to be any focus on the extent of the prejudice, in this case any prejudice had occurred at the same time as the cause of action arose in respect of which the Court would attach less weight: see Smith v Morton above.”

68 Both Smith and Sauer related to applications for leave to commence proceedings out of time pursuant to s 52(4) of the Motor Accidents Act 1988. Accordingly, the passage from [39] of Hodgson JA’s judgment in Smith which I have emphasised in [66] above and the last sentence of the passage from [36] of Beazley JA’s judgment in Sauer recorded in the preceding paragraph, need to be so understood.

69 Thus in Fletcher v Besser [2004] NSWCA 132 Giles JA (at [2]) withdrew his agreement with the last sentence of [39] of Hodgson JA’s judgment in Smith and, along with Mason P, agreed with Bryson JA who held at [14] that Hodgson JA’s observation in that sentence was not applicable to an application such as the present under s 60G(2) of the Limitation Act. I therefore ignore Hodgson JA’s observation in that sentence for present purposes.

70 Accordingly, I shall proceed on the basis adumbrated by Bryson JA in Fletcher at [13] that no weight should be attributed to a comparison between the prejudice faced by the opponent at the time of the claimant’s application for an extension of time and the prejudice which it would have faced if sued at some time when the claimant faced no time bar.

71 The question of prejudice must therefore be addressed at the time of the making of the application for an extension of time as part of the consideration relating to what is just and reasonable. My only rider with respect to the foregoing is that it must be remembered that s 60G(2) applies only to the case where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time being the expiration of the relevant limitation period or the time before that expiration when proceedings might reasonably have been instituted: see ss 60F and 60I(1)(a).

72 It may well be, as the opponent submits, that on the medical evidence currently available, on the two issues in dispute, namely, whether she is in fact suffering from PTSD or some other recognised psychiatric condition and, if so, whether the accident materially contributed to that condition, the claimant’s case is rather weak. Furthermore, as is explained by Basten JA in Shaw, a trial is not necessarily a fair trial if the defendant is forced to rely upon the weaknesses in the plaintiff’s case as its primary basis of defence. In other words, an applicant for an extension of time does not demonstrate that an order extending time would be just and reasonable upon the basis that the weakness of the plaintiff’s case is such that the defendant is likely to be successful in any event. As his Honour points out in Shaw at 336 [40] (see [61] above) there is an element of unfairness to a defendant in having to expend resources in meeting a weak claim particularly where there would be little likelihood of recouping any significant part of the costs involved.

73 Be this as it may, the question in the present case is whether the opponent will suffer significant prejudice as a consequence of its inability to have had the claimant examined by a psychiatrist within weeks or months of the accident and whether it is further prejudiced by the unavailability of notes from her general practitioner, her school reports and Confidential Pupil Record Card and by the effects of time on the ability of the claimant to be an accurate historian of her own life and on the memories and availability of potential witnesses to her state of mind closer in time to the accident, such as Ms Beilby from DOCS.

74 It is well to remember in the present case that not only did the claimant come from a dysfunctional family but also that she was only 10 years old at the time of the accident. Yet, the complaint of Dr Smith and Mr Cipriani upon which the opponent relies is that they were unable to evaluate whether the claimant suffered PTSD or some other recognisable psychiatric condition as a result of the accident in the absence of the opportunity of having her psychiatrically examined within days, weeks or months of that event. That opportunity was therefore lost within months of the accident and certainly well before the time that proceedings might reasonably have been instituted: cf s 60I(1)(a). In these circumstances, in my opinion that loss carries minimal, if any, weight in determining what is now just and reasonable.

75 So far as the unavailability of reports by the claimant’s general practitioner(s) are concerned, there is no evidence to suggest that she had seen a general practitioner during the period subsequent to the accident. This is not surprising given that she only sustained minor physical injuries in the accident and was totally unaware that it may have affected her mental condition. So far as her school reports and the like are concerned, the evidence established that the she was enrolled at Fairfield Public (or Primary) School (now known as Westfields Sports) from 3 February 1983 to 20 October 1983 when she transferred to Merrylands High School. In response to a subpoena, Merrylands High School advised that as it was not required to hold records for students after 8 years, they could not be of any assistance. Fairfield High School responded to a subpoena by stating that all their records were lost when their administration was burnt down in 1999 and Fairfield Public School and the Department of Education & Training responded by indicating that each had failed to locate any material relating to the claimant.

76 All this is not surprising given the claimant’s history particularly from May 1981 when she appeared to be constantly on the move. After being sexually abused by her father during May 1981, she ran away to Newcastle. She was returned from there by her father to her grandparent’s home but ran away again and ended up with her uncle and aunt. However, after being raped by her uncle she again ran away. From October 1981 to October 1982 she lived with her father in Fairfield during which time he regularly raped her. In the nine months after her 12th birthday she lived on the street, except for a week when she was in a refuge. Thereafter she lived on the streets of Kings Cross as a prostitute, becoming a heroin user.

77 During 1983 she came under the auspices of DOCS, appearing on a number of occasions before Minda Childrens Court on charges of being an uncontrollable child. In August 1983 she was interviewed by a psychologist, Ms Beilby, who prepared a detailed written report. At that time the claimant was a resident at Brougham Receiving Home (Brougham). It would appear that at the time she was also attending Westfield High School, although it is apparent that she was constantly absconding from school and from Brougham. In September 1983 the claimant travelled to Wagga and then to Junee and Cootamundra where she was caught breaking and entering into a school canteen. She was transferred from one girl’s home to another and ended up at Reiby House in late 1983 for approximately four months.

78 In February 1984 the claimant returned to her father’s home but was again raped. She was admitted to Minali House from which she once again absconded. In April 1984 she ultimately returned to her father’s house but only for a week when she again ran away. In June 1984 she travelled to Goulburn after which she again went to live with her uncle and enrolled at Fairfield High School in Year 8. She was again raped by her uncle. In July 1984 she left her uncle’s home and went to live with some friends in Liverpool. She became ill with chest and throat infections after which she was taken back to Minali House from which she again absconded. She lived a nomadic life after that, informing DOCS in August 1984 that she was no longer interested in a foster home, that she was old enough to look after herself and that she was not returning to school. It would appear that she did not undertake any further schooling. Furthermore, it is clear from the foregoing potted history that her schooling after 1981 was, to say the least, extremely intermittent. It is not surprising that in these circumstances there are no relevant records currently available or which as a matter of probabilities were ever available.

79 In the foregoing circumstances it is highly unlikely, even if there had been any available school records, that they would have revealed any information relevant to the present issues - no doubt they would have indicated the irregularity of the claimant’s school attendances. Given that the relevant period when she was at school was between the ages of 8 and 12 or 13, and that the only injuries for which she is seeking damages is for a recognised psychiatric illness of which she had never heard of before it was diagnosed in 2005, there is no reason to believe that there was even a possibility, let alone a real possibility, that her school records would have recorded any symptoms of her then mental condition let alone their relationship to the accident. I would therefore place little weight upon their absence in terms of constituting significant prejudice to the ability of the opponent to now obtain a fair trial.

80 The fact remains that there is plethora of material to which reference has been made by Dr Smith and Mr Cipriani which records the history of the claimant from at least 1983 when she came to the attention of DOCS. From that material the experts engaged by the opponent have been able to express opinions unfavourable to the claimant’s case. In so doing, they have expressed the opinion that whatever her current mental condition, it is due to the stressors in her life which are said to be unassociated with the accident. Furthermore, there has been no suggestion of lost opportunity in terms of medical examination on the one hand or unavailable documents that might shed some relevant light on her mental condition arising from the accident on the other, of which the opponent has been deprived by the delay in the institution of proceedings after the limitation period expired in 1994 or, for that matter, since 1988 when the limitation period commenced to run. The opponent’s claim in terms of it sustaining significant prejudice if the limitation period is now extended has been confined to a period well prior to 1988.

81 I have not overlooked the opponent’s claim to presumptive prejudice of the nature of that referred to in [51] above. However, the claimant’s reliability as an historian of her own life, although said to be in issue, is in my opinion unlikely to loom large in any trial given the extensive contemporaneous documentary material that currently exists and from which it is apparent that the claimant has, to a significant degree, reconstructed the history of her life particularly in terms of where and which whom she lived from time to time.

82 Furthermore that history, which is well recorded not only by the claimant but also in the various medical reports, clearly identifies the stressors in her life apart from the 1981 accident, the traumatic nature of which are unlikely to be forgotten. Certainly neither Dr Smith nor Mr Cipriani has suggested in their reports that they were under any disability with respect to the nature and extent of those stressors or as to their contributing effect on the claimant’s mental condition since 1983. Accordingly, I would not be prepared to place any significant weight on the opponent’s plea of presumptive prejudice.

83 In my opinion, therefore, the claimant has demonstrated that the delay in the institution of proceedings has not caused the opponent any significant prejudice. In these circumstances, the Court’s discretion should be exercised in favour of the claimant, it being satisfied that it is just and reasonable that an order be made extending the limitation period for the cause of action pleaded in the Statement of Claim up to and including 16 November 2005.

Conclusion

84 For the foregoing reasons in my opinion the following orders should be made:

(a) Leave to appeal granted subject to the claimant filing her notice of appeal within 14 days of the date of these orders.

(b) Appeal allowed.

(c) Set aside the orders made by Judge Hughes on 7 July 2006.

(d) Pursuant to s 60G(2) of the Limitation Act 1969, the limitation period for the cause of action pleaded by the claimant in her Statement of Claim filed in the District Court on 16 November 2005 be extended up to and including 16 November 2005.

(e) The costs of the Notice of Motion filed on 28 February 2006 to be the opponent’s costs in the cause.

(f) The opponent to pay the costs of the summons for leave to appeal and of the appeal.

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