Ireland v Wightman

[2014] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

IRELAND v WIGHTMAN

[2014] SASCFC 52

Judgment of The Full Court

(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Parker)

28 May 2014

LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - WHAT ARE MATERIAL FACTS

On 13 February 2005, the defendant (appellant) was the driver of a car in which the plaintiff (respondent) was a passenger and which collided with an oncoming vehicle - the plaintiff suffered physical injuries in the collision - in early 2011, the plaintiff consulted a psychologist who provided a report on 1 April 2011 stating that he was suffering from an adjustment disorder with anxiety - on 5 August 2011, three years and five months after expiry of the three year time limit imposed under the Limitation of Actions Act 1936 (SA), the plaintiff commenced an action in the Magistrates Court seeking damages for his physical injuries and adjustment disorder with anxiety - at a preliminary trial, a magistrate granted an extension of time to commence the action - the defendant appealed to a single judge of the Supreme Court against the order for extension of time - the appeal was dismissed.

Held (Parker J; Vanstone and David JJ agreeing): appeal allowed - the magistrate and judge erred in concluding that the psychologist's report would have had a major significance on an assessment of the plaintiff's loss as required under s 48(3a)(b) of the Limitation of Actions Act 1936 (SA) - a newly discovered fact may be regarded as having major significance on the assessment of the plaintiff's loss if it would be very important in the assessment of loss - the determination of that question requires an overall judgment to be made in light of the evidence then available - it does not require a precise mathematical or numerical exercise.

Limitation of Actions Act 1936 (SA) s 36, s 48(1), s 48(3), s 48(3A); Civil Liability Act 1936 (SA) s 53, referred to.
O'Leary v Oolong Aboriginal Corp Inc [2004] NSWCA 7; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; MSP Nominees Pty Ltd v Commissioner of Stamps (SA) (1999) 198 CLR 494; Owen v South Australia (1996) 66 SASR 251, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"major significance on an assessment of the plaintiff's loss", "Ipp Amendments"

IRELAND v WIGHTMAN
[2014] SASCFC 52

Full Court:  Vanstone, David and Parker JJ

1. VANSTONE J:     I agree that the appeal should be allowed.  I agree with the orders proposed by Parker J and with the reasons he has written.

2. DAVID J:              I would allow the appeal.  I agree with the reasons of Parker J and the orders he proposes.

3. PARKER J:          This is an appeal against a decision of a judge of this Court. The judge dismissed an appeal against a decision of a magistrate. After a preliminary trial the magistrate had allowed an extension of time to institute proceedings seeking damages for personal injury allegedly caused by a motor vehicle collision.[1]  For the reasons that follow, I would uphold the appeal.

   [1] The facts referred to in this judgment are drawn from the oral and affidavit evidence given at the preliminary trial and the factual findings of the magistrate.

4. The central issue raised by this appeal is the proper meaning and application of s 48(3a) of the Limitation of Actions Act 1936 (the Act). This provision was introduced into the Act by the Law Reform (Ipp Recommendations) Act 2004 (the Ipp Amendments). This is the first occasion upon which the Full Court has been called upon to determine the meaning and application of s 48(3a).

   Section 48 of the Limitations of Actions Act

5. Section 48 of the Act relevantly empowers a court to extend the time for instituting an action.  The provisions of s 48 relevant to this appeal are:        

   (3)This section does not—

   (a)...

   (b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—

   (i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or

   (ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,

   and that in all the circumstances of the case it is just to grant the extension of time.

   (3a)   A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—

   (a)it forms an essential element of the plaintiff's cause of action; or

   (b)it would have major significance on an assessment of the plaintiff's loss.

   Example—

   In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes—

   (a)     a substantial reduction of the plaintiff's capacity to work; or

   (b)that the plaintiff will require substantially more medical care than previously expected; or

   (c)     a significant loss of expectation of life.

   (3b)   In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—

   (a)the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and

   (b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and

   (c)the nature and extent of the plaintiff's loss and the conduct of the parties generally; and

   (d)any other relevant factor.

   The collision

6. On 13 February 2005 the plaintiff (respondent) was a passenger in a car, owned by the respondent but driven by the defendant (appellant), which collided with an oncoming vehicle. A Ms Fedele was also a passenger.  At that time the defendant was aged 14 years and did not hold a driver's licence.

7. Four police officers attended at the scene after the collision. Details of their attendance were recorded in an operations log and later in a vehicle collision report.

   Injuries

8. Each of the persons in the vehicle was injured as a result of the collision. The defendant suffered a serious head injury and remains seriously incapacitated. It was agreed during the preliminary trial that he did not have capacity to give sworn evidence.

9. Ms Fedele suffered a broken arm, two broken ankles, other physical injuries and emotional and psychiatric consequences.

10. The plaintiff suffered a dislocated right shoulder and fractured left wrist. He spent three days in hospital after the collision and had two operations on his wrist. He returned to hospital twice over the next month.  At the preliminary trial he also gave evidence about the psychological effect of the collision.  I will further consider that issue later as it is the central factual question in this appeal.

11. The plaintiff was employed as a fork lift driver at the time of the collision. As he was unable to perform his duties after the collision, he was retrenched. He was reengaged six months later. Apparently he had been fit before then but it took time for him to secure a position.  He has worked continuously since that time with several different employers.

    The proceedings instituted by the other passenger

12. In November 2005 Ms Fedele instituted proceedings against the defendant. That claim was settled in January 2010 on a confidential basis. 

13. On 23 March 2010 and 13 April 2010 the plaintiff received letters from Allianz as claims management agent for the Motor Accident Commission (MAC). Allianz sought to recover $156,021.75 paid by MAC on behalf of the plaintiff (as the compulsorily insured owner of the vehicle) to resolve Ms Fedele’s claim. Allianz asserted that the plaintiff had breached his policy of insurance by permitting the defendant to drive his car when the defendant was aged 14 years and not licensed to drive.

14. The plaintiff consulted a solicitor on 14 April 2010.  Through the solicitor he denied that he was aware that the defendant was underage and not entitled to drive.  In November 2010 MAC’s solicitor advised that recovery action would not be pursued.

15. The plaintiff had commenced a relationship with Ms Fedele about one year after the collision. They were living together at the time of the preliminary trial.  Nevertheless, they both gave evidence at the preliminary trial to the effect that they had not discussed their injuries. They had also not spoken about the proceedings instituted by Ms Fedele against the defendant nor had they discussed the plaintiff’s claim.

    The reasons for the delay in instituting proceedings

16. The plaintiff gave evidence at the preliminary trial that he had feared reprisals if he sued the defendant.  He had been told by others that one of the defendant’s family was “looking for him” and that some members of the family had connections with a well known “bikie” club. I must stress that the magistrate did not find that this alleged connection actually existed nor was it necessary for him to do so.  While expressing reservations about some aspects of the evidence of the plaintiff and also that of Ms Fedele, he simply found it more probable than not that the plaintiff believed there to be such a connection.

17. In about November 2010, the plaintiff was informed by his solicitor that MAC, rather than the defendant personally, would meet any claim.  While he was aware that MAC might seek to recover from the defendant any payments it made to him, he thought that reprisals were less likely if MAC was primarily liable to meet his claim. 

    The plaintiff consults a psychologist

18. The plaintiff’s evidence at the preliminary trial was that he informed his solicitor in late April 2010 that he suffered from shoulder and wrist pain. In addition, he had been experiencing uncontrolled “moods”, became angry for no real reason and also suffered nightmares related to the collision.  The solicitor suggested that he consult an orthopaedic surgeon, Dr Mario Penta, and Mr Sandy Litt,[2] a registered psychologist and hypnotherapist.

    [2] I note that both the magistrate and the judge frequently referred to Mr Litt as "Dr Litt". His letterhead indicates that he holds the degree of a bachelor of science and three diplomas. Thus, the correct honorific is “Mr”.

19. The plaintiff consulted Dr Penta on 24 May 2010. Dr Penta provided reports dated 22 July 2010 and 8 September 2010.  In the latter report he advised that the plaintiff's shoulder pain had nothing to do with the collision in 2005.  The plaintiff did not rely upon Dr Penta’s reports.

20. Mr Litt saw the plaintiff on three occasions, ie 16 February 2011, 4 March 2011 and 16 March 2011. On 17 March 2011 the plaintiff’s solicitor asked Mr Litt to provide a report. He did so on 1 April 2011.

    The psychologist’s report

21. Mr Litt administered two standard psychological tests. He reported that the plaintiff was suffering from an adjustment disorder with anxiety. However, he also stated that the plaintiff “no longer suffers from the repetitive nightmares, fear of dying in a car and hyper vigilance while driving”. Mr Litt also reported that the plaintiff had informed him that he still gets angry “... especially when drivers cut in front of me” or “... when people at work put pressure on me ... ask me to do things quicker than it is possible”. The latter statement may possibly relate to the immediately following comment by Mr Litt that the plaintiff’s wrist injury still causes him some difficulties.

22. Mr Litt stated that the plaintiff’s psychological[3] injuries were caused by the collision.  Before seeing Mr Litt, he had not sought or been given treatment in relation to those symptoms. Mr Litt also reported that two different treatments that he had administered to the plaintiff had been effective. He concluded his report by stating that he did not believe that the plaintiff will require any further psychological treatment as his condition had been stabilised. 

    [3] Mt Litt used the term “psychological”. The magistrate described the non-physical injuries suffered by the defendant as “psychological” while the judge described them as “psychiatric”.  I will use Mr Litt’s description.    

23. While Mr Litt described the adjustment disorder with anxiety suffered by the plaintiff as a psychological injury, the defendant did not contend that this was not a psychiatric injury for the purposes of s 53(2) or (3) of the Civil Liability Act 1936.[4]  Those provisions limit liability for mental harm to recognised psychiatric illnesses. 

    [4] Adjustment disorder and anxiety are both recognised in DSM-V, the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (5^th ed). 

24. The submissions of counsel were limited to the duration of the disorder rather than whether it could properly be characterised as a psychiatric illness. I note that in O’Leary v Oolong Aboriginal Corp Inc[5] the New South Wales Court of Appeal held that an adjustment disorder was a recognised psychiatric illness within the meaning of the NSW analogue to s 53. The defendant did not question whether or not Mr Litt’s professional training as a psychologist qualified him to diagnose a psychiatric illness. I therefore proceed on the basis that the adjustment disorder with anxiety was mental harm within the meaning of s 53.

    [5] [2004] NSWCA 7.

    The plaintiff institutes proceedings

25. After being provided by his solicitor with Mr Litt’s report dated 1 April 2011, the plaintiff read it for the first time on about 9 April 2011. The report informed him of Mr Litt’s diagnosis of an adjustment disorder with anxiety and also that this condition was caused by the collision.

26. On 5 August 2011 the plaintiff commenced an action in the Magistrates Court against the defendant seeking damages for shoulder and wrist pain and adjustment disorder with anxiety, being injuries allegedly caused by the negligent driving of the defendant. Thus, the proceedings were instituted some three years and five months after the expiry of the time limit of three years on personal injury claims fixed by s 36 of the Act.

27. Following an application by the plaintiff, a magistrate ordered that the extension of time question should be determined at a preliminary trial. At the conclusion of the preliminary trial, the magistrate exercised the power conferred by s 48 of the Act to extend the time for the plaintiff to commence the action. As I have already noted, an appeal to this Court against that decision was dismissed by a single judge.

    The magistrate’s reasons

28. The magistrate noted that Mr Litt’s evidence was not challenged. The magistrate rejected a submission made by counsel for the defendant that the effect of Mr Litt’s report was that the mental harm would not have major significance on an assessment of the plaintiff’s loss. The magistrate held that potentially the mental harm would have a significant impact upon the claim. The magistrate also accepted that the opinion of Mr Litt would in itself amount to a material fact that would have a major significance on the assessment of his loss.

29. The magistrate rejected a submission on behalf of the defendant that MAC would be prejudiced by the grant of an extension of time because the defendant, as a result of his mental disability, would not be able to give evidence. Thus, the defendant would need to rely upon the evidence of police who had attended at the scene of the collision and that of a Dr James. The latter had been the plaintiff’s general practitioner at the time of the collision. He had retired from medical practice and had not been located by the plaintiff’s solicitor. In addition, three of the four police witnesses were no longer employed in South Australia Police. The magistrate did not consider that these factors were sufficient to refuse the application under s 48(3b) of the Act.

    The appeal to the judge

30. The defendant pursued three separate grounds of appeal before the judge. They were:

    (a)the facts disclosed in Mr Litt’s report did not form an essential element of the plaintiff’s cause of action within the meaning of s 48(3a)(a) of the Act;

    (b)the facts disclosed in Mr Litt’s report would not have (or were not demonstrated to have) major significance on an assessment of the plaintiff’s loss within the meaning of s 48(3a)(b) of the Act; and

    (c)the magistrate erred in the exercise of his discretion to grant the extension of time.

    The judge’s reasons - major significance on assessment of loss

31. The judge held that the facts disclosed in Mr Litt’s report did not form an essential element of the plaintiff’s cause of action. That finding has not been challenged on this appeal and need not be considered.

32. The judge also held that facts disclosed in Mr Litt’s report would have major significance on an assessment of the plaintiff’s loss within the meaning of s 48(3a)(b). Whether that finding was correct is the central issue in this appeal.

33. The judge held that the court was required to perform an evaluative exercise to determine whether a fact would have “major significance” on an assessment of the plaintiff’s loss. This did not require the impact to be high (or any other specific level) in both absolute and relative terms. It was “... simply a matter of weighing holistically the significance of the fact on the assessment considering its relative and absolute impact in the assessment of loss”.[6]

    [6] [2013] SASC 139 at [82].

34. The judge also held that the examples[7] which appear below and are part of s 48(3a) suggested that the relative impact of a fact upon an assessment of loss will tend to be more important than the absolute impact.

    [7] Sections 19(1)(c) and 19A of the Acts Interpretation Act 1915 respectively state that examples form part of the Act and they may extend, but do not limit, the meaning of a provision and the words used therein.

35. The judge further held that the plaintiff was aware of his physical injuries and their effects before April 2011. After the physical injuries had healed they had not had a major effect upon his life or employment. He had not been left with significant residual physical disability. For that reason the plaintiff was not likely to receive a large award for pain, suffering and loss of amenities of life.

36. As the plaintiff had been continuously employed apart from the six month period immediately following the collision, the judge held that it was unlikely that he would receive any significant award on account of loss of wages or earning capacity beyond the loss of $10,000 during that period of six months. The medical expenses incurred by the plaintiff as a result of his physical injuries totalled $7,208. They had principally been incurred immediately after the collision.

37. In light of the evidence given by the plaintiff at the preliminary trial and Mr Litt’s report, the judge concluded that the effect upon the plaintiff of the adjustment disorder with anxiety had been substantial. Whilst he had not suffered any loss of wages to that time, an assessment of loss would need to make a significant allowance for a diminution in his future earning capacity as a result of those injuries. That assessment would also need to make allowance for the likelihood that he would require further treatment. Thus, the continuing and residual effects of the adjustment disorder with anxiety were likely to lead to a higher award for non-economic loss than for his physical injuries.

1. While the parties had made detailed submissions at the preliminary trial about the likely assessment of the various heads of damage in respect of the plaintiff’s physical and psychological injuries, due to the limitations of a preliminary trial the judge held that it was neither possible nor appropriate to undertake a monetary assessment. The judge concluded that the assessment of the plaintiff’s lost was likely to be increased as a result of incorporating his psychological injuries by at least 50% and possibly up to 100% above the level of assessment relating to his physical injuries. His Honour also held that the order of magnitude of the additional quantum was likely to be in the lower tens of thousands of dollars rather than thousands of dollars or hundreds of thousands of dollars.

2. On that basis the judge concluded that he was satisfied that the facts learned by the plaintiff when he received Mr Litt’s report in April 2011 would have major significance on an assessment of his loss. Accordingly, the judge considered that the magistrate had been correct in determining that the new facts were of major significance on the assessment of loss.

   The appeal to the Full Court

3. The primary contention raised in support of the application for permission to appeal to the Full Court was that the matter raised a significant issue of principle concerning the proper construction and application of ss 48(3a) and (3b) of the Limitations of Actions Act.  Permission to appeal was granted.  The grounds of appeal to the Full Court were, in essence, the same as those advanced in the appeal determined by the judge.

   The Ipp Amendments

4. The effect of the Ipp Amendments to s 48 was twofold. Subsection (3a) restricted the circumstances in which a newly ascertained fact may be regarded as material for the purposes of s 48(3)(b)(i) whilst sub-s (3b) specified additional criteria to be taken into account by a court when it determined whether it was just to grant an extension of time.

5. Counsel for the defendant drew the attention of the court to the Minister’s Second Reading speech in relation to the Ipp Amendments.[8] However, counsel for the plaintiff submitted that there was no ambiguity in s 48 which warranted resort to the Second Reading speech nor was it necessary to do so as to determine the purpose of the changes to s 48 made by the Ipp Amendments.  For the reasons that follow, it is permissible to refer to the Second Reading speech for the purpose of determining the mischief that the amendments were intended to address and their purpose.

   [8] South Australia, Parliamentary Debates, Legislative Council, 15 October 2003 at 350 – 355.

6. The High Court has observed on many occasions that the task of statutory interpretation must begin with a consideration of the text of the statute and extrinsic materials cannot be relied upon to displace the clear meaning of the text.[9]  That principle must be applied in light of the further observation in CIC Insurance Limited v Bankstown Football Club Limited[10] that the context of legislation must be considered at the outset and not merely at a later point when ambiguity might be thought to arise. The same passage also noted that “context” must be used in its widest sense to include matters such as the existing state of the law and the mischief that the statute was intended to remedy.

   [9] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at 46 – 47 (Hayne, Heydon, Crennan and Kiefel JJ) and cases cited therein.

   [10] (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

7. I therefore reject the submission that reference to extrinsic material was not warranted or necessary.  Reference may be made to the Second Reading speech to identify the mischief which legislation was intended to address and also its underlying purpose[11] (which may be synonymous with the mischief[12]). 

   [11] MSP Nominees Pty Ltd v Commissioner of Stamps (SA) (1999) 198 CLR 494 at 506 – 507 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ); Owen v South Australia (1996) 66 SASR 251.

   [12] Owen v South Australia (1996) 66 SASR 251 at 256 (Cox J).

8. The Minister’s Second Reading speech informed the Parliament that the Ipp Committee had been established “... to report on comprehensive reforms to the law of negligence designed to reduce the cost of injury claims and, hence, the costs of insurance”.[13] This passage makes clear the mischief that the Ipp Amendments were intended to address and their underlying purpose.

   [13] South Australia, Parliamentary Debates, Legislative Council, 15 October 2003 at 350.

9. The Minister went on to state that the specific recommendations of the Ipp Report had not been incorporated into the amendments relevant to this appeal. Nevertheless, the Minister stated that the Bill 

   amends section 48 of the Limitations of Actions Act to restrict extensions of time. Evidence presented in submissions suggests that extensions are, at present, readily available and that the necessary new material fact can readily be found, often in the form of a new medical report. The government thinks it desirable to refocus the law so that extensions are not granted just because a new relevant factor has been discovered but are only available if the plaintiff can show that the fact forms an essential part of the plaintiff’s claim or would have a major significance on an assessment of the plaintiff’s loss.

10. This passage provides a more specific context to assist in interpreting the amendments made to s 48.

11. It is necessary to consider in that context the meaning of the words “major significance on an assessment of the plaintiff’s loss” in s 48(3a)(b). The crucial issue is the meaning of the word “major”. The word must be construed in its proper context, which includes the purpose of the Ipp Amendments.

12. The defendant’s counsel referred to two different definitions of the word “major” provided in the Macquarie Dictionary.  One of those definitions was “greater, as in size, amount, extent, importance, rank etc”.  As counsel noted, that usage suggests that the newly discovered fact must have a greater significance on an assessment of the plaintiff’s loss than the facts previously known.  He went further to contend that the new fact must be so significant that it would double the plaintiff’s entitlement to compensation.

13. I do not consider such a meaning was intended. If the legislature had intended to impose a requirement that the new fact must be of greater significance than those previously known, or double in value, clear words could readily have been adopted to achieve that outcome. Moreover, such an interpretation is plainly inconsistent with the examples that follow in s 48(3a).

14. I consider that the alternative Macquarie Dictionary meaning referred to by counsel for the defendant is the correct meaning, ie “very important or significant”.  That usage is consistent with the clear legislative purpose of narrowing the circumstances that may warrant the grant of an extension of time. Thus, the newly discovered fact may be regarded as material to the plaintiff’s case if it would be very important in the assessment of loss.

15. The requirement that the new fact must be major, in the sense of very important, is consistent with the examples included in s 48(3a). Those examples refer to a substantial reduction of the plaintiff’s capacity to work, a requirement for substantially more medical care than previously expected or a significant loss of expectation of life.

16. The clear effect of s 48(3a)(b) is to require a comparison between the assessment of the plaintiff’s loss without the newly discovered facts being known and the assessment after those facts were ascertained. The statutory test will be satisfied if there would be a major (ie very important) difference between the two assessments.

17. The judge held that the determination of whether the newly discovered fact would have major significance on an assessment of the plaintiff's loss should primarily be measured in relative rather than absolute terms.[14] I consider that interpretation to be consistent with the examples included in s 48(3a). Moreover, if greater weight were to be given to absolute significance over relative significance that may preclude plaintiffs from being granted an extension of time if their total claim was likely to have a limited potential quantum. There is nothing in s 48 to suggest that such an outcome was intended.

    [14] [2013] SASC 139 at [84].

18. While counsel for both parties suggested otherwise (albeit to different ends), there is nothing in the text of s 48(3a) to require the determination of whether a newly found fact would have major significance on the assessment of loss to be conducted as a precise mathematical or numerical exercise. Moreover, the fact that the extension of time issue will often be determined as a preliminary question militates against such an approach. That is because there is likely to be insufficient information to conduct a reliable mathematically-based assessment of potential damages. Accordingly s 48(3a) requires an overall judgement to be made in light of the evidence then available as to whether the newly found fact would be of major (ie very important) significance on the assessment of loss. However, where the available evidence permits, a numerical exercise may sometimes be helpful.

    Evidence not of major significance on the assessment of loss

19. The evidence of Mr Litt was that the adjustment disorder with anxiety suffered by the plaintiff had resulted from the collision.  However, it has not caused him to lose time from work and no further treatment will be required.  The plaintiff had not received any treatment for the adjustment disorder prior to consulting Mr Litt. 

20. In light of that evidence I consider that the magistrate fell into error concluding that Mr Litt’s report would have a major effect on the assessment of the plaintiff’s loss.  For the same reason I also consider that the judge erred by finding that the mental harm suffered by the plaintiff would require significant allowance to be made for a reduction in his future earning capacity when assessing loss. I also consider that the judge erred by holding that allowance would need to be made for the likelihood that the plaintiff would require future psychiatric treatment.  That was directly contrary to Mr Litt’s unchallenged evidence.

21. Accordingly, I do not consider that the mental harm suffered by the plaintiff due to the collision would be of major significance on the assessment of his loss. I consider that the mental harm might at most be characterised as having some significance on the assessment of his loss but not major significance.

22. Because of that conclusion it is not necessary for me to consider the exercise of the discretion under s 48(3b) to extend time.

    Conclusion

23. I would uphold the appeal and would  make the following orders.

    1.   The appeal is allowed.

    2.   The orders made by Blue J on 6 and 20 September 2013 dismissing the appeal and as to costs are set aside.

    3.   The orders made by Magistrate Snopek on 13 December 2012 extending time within which to institute proceedings and as to costs are set aside.

    4.   The application for an extension of time within which to institute proceedings (filed in the Magistrates Court on 19 September 2011) is refused.