Ireland v Wightman
[2013] SASC 139
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
IRELAND v WIGHTMAN
[2013] SASC 139
Judgment of The Honourable Justice Blue
6 September 2013
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY - POWER OF COURT TO EXTEND LIMITATION PERIOD
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - EVIDENCE TO ESTABLISH RIGHT OF ACTION
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
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - PRINCIPLES UPON WHICH DISCRETION EXERCISED
On 13 February 2005, Mr Ireland was the driver of a car in which Mr Wightman was a passenger and which collided with an oncoming vehicle. Mr Wightman was injured in the collision.
On 11 August 2011, Mr Wightman commenced an action in the Magistrates Court against Mr Ireland for damages for physical and psychiatric injuries caused by Mr Ireland’s negligent driving. The action was instituted outside the three year time limit imposed by the Limitation of Actions Act 1936 (SA). Mr Wightman sought an extension of time on the basis of a report in relation to psychiatric injuries said to have been caused by the collision.
A Magistrate extended the time to commence the action. The Magistrate concluded that facts learnt by Mr Wightman from reading the report formed an essential element of his cause of action and would have major significance on an assessment of his loss. The Magistrate concluded that it was just to grant the extension of time.
Mr Ireland appeals against the order for extension of time.
Held (dismissing the appeal):
1. (a) Where a plaintiff has a claim comprising parallel strands of a given horizontal element, a fact which comprises one of those strands will comprise an “element of the plaintiff’s cause of action” within the meaning of section 48(3a)(a) of the Act (at [60]).
(b) The requirement in section 48(3a)(a) of the Act that that strand be “essential” requires an evaluative judgment. The evaluative judgment is to be made having regard to the plaintiff’s knowledge at the time of learning the new fact and involves weighing the strength, and importance of the new strand against that of the existing parallel strands of that element of which the plaintiff was already aware (at [66]).
(c) Mr Wightman’s learning that he suffered a recognised psychiatric illness as a result of the collision involved his learning an element of the cause of action within the meaning of section 48(3a)(a) of the Act. However, it was not an essential element of that cause of action because, to his knowledge, he already had a case for damages due to physical harm suffered in the collision (at [75]).
(d) The Magistrate erred in concluding that Mr Wightman was eligible to seek an extension of time under section 48(3a)(a) of the Act (at [76]).
2. (a) Under section 48(3a)(b) of the Act, the court is required to perform an evaluative exercise to determine whether a fact would have “major significance” on an assessment of the plaintiff’s loss. This involves weighing holistically the significance of the fact on the assessment considering its relative and absolute impact on the assessment of loss. The relative impact of the fact on an assessment of loss will generally be more important than the absolute impact (at [82]-[84]).
(b) The facts learnt by Mr Wightman from reading the report would have a major significance on an assessment of his loss (at [92]).
(c) The Magistrate was correct in concluding that Mr Wightman was eligible to seek an extension of time under section 48(3a)(b) of the Act (at [93]).
3. The Magistrate did not err in the exercise in his discretion in concluding that it was just to grant an extension of time (at [118]).
Acts Interpretation Act 1915 (SA) ss 19, 19A; Civil Liability Act 1936 (SA) ss 3, 33, 52, 53; Limitations of Actions Act 1936 (SA) ss 36, 48, 48(3), 48(3a), 48(3b); Motor Vehicles Act 1959 (SA) s 124A, referred to.
Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6; (2003) 7 VR 63; Bank of New South Wales v Commonwealth (1948) 76 CLR 1; Borsato v Campbell [2006] QSC 191; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; House v The King (1936) 55 CLR 499; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Republic of India v India Steamship Co Ltd [1993] AC 410; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Thoday v Thoday [1964] P 181; Van Amstel v Country Roads Board [1961] VR 780; Wright v Donatelli (1995) 65 SASR 307, discussed.
Chapman v Hearse (1961) 106 CLR 112; Cliff v Quinn (1988) 54 SASR 151; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223; Napolitano v Coyle (1977) 15 SASR 559; Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388; Owen v State of South Australia (1996) 66 SASR 251; Renowden v McMullin (1970) 123 CLR 584; Weldon v Neal (1887) 19 QBD 394, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"facts material to the plaintiff’s case"
“essential element of the plaintiff’s cause of action"
“major significance on an assessment of the plaintiff’s loss"
IRELAND v WIGHTMAN
[2013] SASC 139Magistrates Appeal Civil:
Blue J:
In February 2005, the appellant/defendant, Mr Ireland, was the driver of a Commodore sedan in which the respondent/plaintiff, Mr Wightman, was a passenger and which collided with an oncoming vehicle. Mr Wightman was injured in the collision.
In August 2011, Mr Wightman commenced an action in the Magistrates Court against Mr Ireland claiming damages for physical and psychiatric injuries caused by Mr Ireland’s negligent driving. The action was instituted outside the three year time limit imposed by section 36 of the Limitation of Actions Act 1936 (SA) (“the Act”). Mr Wightman sought an extension of time to institute the action pursuant to section 48 of the Act. Mr Ireland is insured by the Motor Accident Commission, which is defending the claim on his behalf.
In April 2011, four months before commencing the action, Mr Wightman received and read a report from a psychologist, Dr Litt. Dr Litt expressed the opinion that Mr Wightman suffers from an Adjustment Disorder with Anxiety. He expressed the opinion that his psychiatric injuries were caused by the collision. He expressed the opinion that Mr Wightman still has a residual disability, including anger, anxiety, tension, indecision and restlessness and nausea and upset stomach when about to drive or driving.
In May 2012, on Mr Wightman’s application, a Magistrate ordered that there be a preliminary trial on the time limitation issue. Mr Ireland initially opposed the application for a preliminary trial, but ultimately did not oppose it on the basis of an agreement as to payment of his costs. The preliminary trial proceeded before a different Magistrate.
In December 2012, the Magistrate extended the time under section 48 of the Act for Mr Wightman to commence the action. The Magistrate concluded that facts learnt by Mr Wightman from reading Dr Litt’s report formed an essential element of Mr Wightman’s cause of action and would have major significance on an assessment of his loss. The Magistrate concluded that it was just to grant the extension of time.
Mr Ireland appeals against the order for extension of time. He appeals on essentially three grounds:
1. the facts disclosed in Dr Litt’s report did not form an essential element of Mr Wightman’s cause of action within the meaning of section 48(3a)(a) of the Act;
2. the facts disclosed in Dr Litt’s report would not have (or were not demonstrated to have) major significance on an assessment of Mr Wightman’s loss within the meaning of section 48(3a)(b) of the Act;
3. the Magistrate erred in the exercise of his discretion to grant the extension of time.
Background
The facts set out below are based upon the affidavit and oral evidence adduced by the parties at the preliminary trial. Those facts were established for the purpose of the preliminary trial, but some of them will be in dispute at the principal trial.
The evidence adduced at the preliminary trial was as follows:
1. evidence by Mr Wightman by way of affidavit sworn on 28 June 2012 together with oral evidence;
2. evidence by Ms Fedele by way of affidavit sworn on 27 June 2012 together with oral evidence;
3. an affidavit by Dr Litt sworn on 26 June 2012 together with his report dated 1 April 2011;
4. an affidavit by Brevet Sergeant Drozd sworn on 21 August 2012;
5. affidavits by the defendant’s solicitor, Ms Paradiso, sworn on 13 July and 6 August 2012;
6. an affidavit by the plaintiff’s solicitor, Ms Thompson, sworn on 24 August 2012.
The collision
Mr Wightman was the owner of the Commodore sedan. There was a compulsory third party bodily injury policy of insurance in force in respect of the vehicle under the Motor Vehicles Act 1959 (SA) (“the policy”). The policy insured Mr Wightman as owner and drivers of the vehicle in respect of all liability incurred by them in respect of bodily injury to any person caused by or arising out of the use of the vehicle.
At the time of the collision, Ms Fedele was in the front passenger seat of the Commodore. Mr Wightman was in the rear seat. Their evidence was that Mr Ireland was driving at approximately 80 kph and, when the road veered to the left, he continued to drive straight into the path of an oncoming vehicle which was on its correct side of the road. Their evidence was that each of them had repeatedly told Mr Ireland to slow down and stop the car before the collision.
Brevet Sergeant Drozd and Senior Constable Bissell from the South Australian Police Major Crash Investigation Unit attended at the scene after the collision. They recorded details of their attendance in an operations log and subsequently prepared a Vehicle Collision Report. Neither document was tendered by Mr Ireland at the preliminary trial, although the operations log was referred to in Brevet Sergeant Drozd’s affidavit to refresh his memory and the Vehicle Collision Report was referred to in Ms Paradiso’s first affidavit as being in her possession.
Each of Mr Ireland, Mr Wightman and Ms Fedele was injured as a result of the collision. Mr Ireland suffered a severe head injury. He has only a limited memory in relation to the collision and limited understanding in terms of the implications of giving evidence on oath. It was agreed during the preliminary trial that he did not have the capacity to give sworn evidence[1] and no point was taken as to the defendant’s failure to call him.
[1] The question of unsworn evidence was not explicitly addressed.
Ms Fedele suffered a broken arm, injuries to her forehead, ankles and knee and emotional and psychiatric consequences. In November 2005, she instituted a claim against Mr Ireland. In January 2010, her claim was settled on a confidential basis.
In March and April 2010, Allianz, on behalf of the Motor Accident Commission, wrote letters to Mr Wightman. The first letter claimed that Mr Wightman breached an express warranty contained in the policy by allowing Mr Ireland, who did not hold a driver’s licence, to drive the Commodore. It asserted that the Motor Accident Commission had a right of recovery against him under section 124A of the Motor Vehicles Act 1959 (SA) and, on settlement of claims made by (a) person(s) injured, he would be advised of the amount due and payable to the Commission.
The second letter stated that the Commission had been required to pay an injury claim arising from the collision and that the Commission now sought to recover $156,021.75 paid on Mr Wightman’s behalf to resolve that injury claim. It appears from the wording of the second letter that the whole of the $156,021.75 had been paid to Ms Fedele, although it is remotely possible that a component represented an amount paid to Mr Ireland. No evidence was adduced by Mr Ireland on that question.
On 2 November 2010, solicitors for the Motor Accident Commission wrote to Mr Wightman’s solicitors advising that the Commission no longer pursued recovery action against Mr Wightman.
Mr Wightman’s injuries
Mr Wightman suffered a dislocated right shoulder and fractured left wrist. He was taken to the Queen Elizabeth Hospital and discharged three days later. He returned to hospital twice over the next month. Copies of the hospital records were obtained at some point by the Motor Accident Commission, but were not tendered at the preliminary trial.
At the time of the collision, Mr Wightman was employed as a forklift driver. He was retrenched following the collision as he was no longer able to perform his duties. After six months, he was re-hired by the same employer. He has been in continuous employment since then.
The records of Mr Wightman’s general practitioners from June 2007 onwards were obtained by the Motor Accident Commission but were not tendered at the preliminary trial. Attempts by the Motor Accident Commission to locate Mr Wightman’s previous general practitioner, Dr James, had proved unsuccessful.
In his defence, Mr Ireland pleads that in December 2005 Mr Wightman injured both shoulders while water skiing and in July and November 2008 he injured his left wrist as a result of falls.
Mr Wightman gave evidence at the preliminary trial of the emotional and psychiatric effects of the collision, including uncontrolled moods, getting angry for no reason, suffering from nightmares, and not trusting anyone else to drive him around.
Mr Wightman gave evidence that he feared reprisals against his family and himself if he brought proceedings against Mr Ireland. He gave evidence that this was the reason why he did not institute proceedings within the required time. In November 2010, he learnt that the insurer would meet any claim brought against Mr Ireland and not Mr Ireland personally. In April 2011, he learnt of the matters stated in Dr Litt’s report.
Power to extend limitation period
The relevant provisions of section 48 of the Act are as follows:
(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)instituting an action; or
(b)doing any act, or taking any step in an action; or
(c)doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
…
(3) This section does not—
(a)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
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.
It is common ground on appeal that the diagnosis by Dr Litt that Mr Wightman suffered an Adjustment Disorder and Anxiety attributed to the collision comprised and/or evidenced a “fact” within the meaning of section 48(3)(b)(i) of the Act. It is common ground that Mr Wightman ascertained that fact within 12 months before institution of the action as required by section 48(3)(b)(i) of the Act. It is common ground that, if that fact forms an essential element of Mr Wightman’s cause of action or would have major significance on an assessment of his loss, it is to be regarded as material to his case within the meaning of section 48(3)(b)(i).
The issues which arise under section 48(3a) are whether the Magistrate erred in concluding that the facts learnt–
1. form an essential element of Mr Wightman’s cause of action; and/or
2. would have major significance on an assessment of Mr Wightman’s loss.
Facts material to the plaintiff’s case
Before turning to the two issues which arise under section 48(3a) of the Act, it is instructive to consider the meaning of the phrase “facts material to the plaintiff’s case” in section 48(3)(b)(i) of the Act independently of subsection (3a). A “fact” within the meaning of section 48(3)(b)(i) encompasses any fact whether it be a fact in issue in the case or merely an evidentiary fact relevant to a fact in issue in the case.
In Sola Optical Australia Pty Ltd v Mills,[2] the High Court held that the plaintiff learnt a fact when she read a report by a surgeon expressing the opinion that she had suffered an 80 per cent loss of function of her arm notwithstanding that she already knew of her physical disabilities including her inability to use her arm. Wilson, Deane, Dawson, Toohey and Gaudron JJ said:
It was submitted that … the Court should have held that the fact found to have been ascertained by the respondent on 20 March 1985 was not a fact material to her case for the reason that Mr Morgan in his second report was only putting a percentage on the disabilities which she had described and demonstrated to him and of which she must necessarily have been aware at the time of his second examination. But the second report was doing more than that. It was expressing a specialist medical opinion as to the effect of the disabilities upon the functional capacity of the respondent’s arm. The respondent certainly had a knowledge of the physical disabilities that she suffered, but it was material to her case to learn that a medical assessment of the effect of those disabilities upon her capacity to function was expressed in terms of 80 per cent loss of function. Such a fact was material to the issue of damages.[3]
[2] (1987) 163 CLR 628.
[3] Ibid at 638 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.
As to the requirement that the fact be “material to the plaintiff’s case”, they held:
A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case.[4]
[4] Ibid at 636 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.
It is no part of the requirement that the plaintiff learn a fact material to the plaintiff’s case that there be any element of causation between the learning of the fact and the plaintiff’s decision to sue.[5] In Sola Optical Australia Pty Ltd v Mills, Wilson, Deane, Dawson, Toohey and Gaudron JJ said:
The effect of the paragraph was described by Bray CJ in Napolitano in words which we are glad to adopt:
“A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that … their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation ...”
In our opinion the Full Court was correct in overruling Cakebread and Raison. There is no warrant for writing into the Act a further qualification that, to attract the operation of s 48(3)(b)(i), there must be some interaction between the material fact and the plaintiff’s decision to sue.[6]
[5] Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; Wright v Donatelli (1995) 65 SASR 307 at 309-310 per Cox J, 310 per Perry J and 320 per Lander J.
[6] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636 per Wilson, Deane, Dawson Toohey and Gaudron JJ,
In Wright v Donatelli,[7] Lander J (Cox and Perry JJ agreeing) said:
The plaintiff is under no obligation to establish that the material fact caused or even contributed to the decision to bring proceedings.[8]
[7] (1995) 65 SASR 307.
[8] Ibid at 320 per Lander J (Cox and Perry JJ agreeing).
Subsection (3a) grafts onto sub-section (3)(b)(i) a specific (or additional) requirement, namely that the fact forms an essential element of the plaintiff’s cause of action or would have major significance on an assessment of the plaintiff’s loss. It does not impose a requirement that there be some interaction between the plaintiff’s learning the material fact and the plaintiff’s decision to sue.
Essential element of cause of action: s 48(3a)(a)
The Magistrate’s reasoning in relation to the first issue was as follows:
The defendant’s solicitor has submitted that the medical evidence from Dr Litt does not support an assertion that the psychological injury forms an essential element of the plaintiff’s cause of action as this is a claim for personal injuries, loss and damage not a nervous shock claim. The submission is that therefore it does not pass the threshold test in section 48(3a)(a). I disagree with that proposition and accept the submission made by Mr Quinn in his reply to the defendant’s submissions dated 10 September 2012. As stated by Mr Quinn, section 53 of the Civil Liability Act at section 53(1)(a) states that damages may only be awarded for mental harm if the injured person was physically injured in the accident or was present at the scene of the accident. I accept that damages for the “mental harm” cannot be awarded unless the plaintiff can bring himself under 53(1)(a) or (b) of the Civil Liability Act. The plaintiff’s claim is that he was physically injured in an accident, and as a result has suffered physical and mental harm from the accident.
In section 3 of the Civil Liability Act it states:
“mental harm” means impairment of a person’s mental condition.
“consequential mental harm” means mental harm that is a consequence of bodily injury to the person suffering the mental harm: and
“pure mental harm” means mental harm other than consequential mental harm.
I agree with Mr Quinn that suffering mental harm as a consequence of an accident must be an essential element of the plaintiff’s cause of action falling within the ambit of section 48(3)(a) of the Act. There could be no claim for mental harm if it was not shown to be caused by an accident as here, in which the plaintiff was injured and present. The cause of action for negligence requires the plaintiff to establish harm was caused by negligence on the part of the defendant as set out in section 34 of the Civil Liability Act. Therefore, I find that the psychological injuries caused by the accident on 13 February 2005 amount to a material element in the plaintiff’s cause of action.
The defendant’s argument is a simple one. The elements of Mr Wightman’s cause of action are threefold: existence of a duty of care, negligence, and causation of loss. Mr Wightman knew within days of the collision, and certainly before expiration of the limitation period, of the facts giving rise to the duty of care (Mr Ireland was driving a vehicle in which he was a passenger), the facts comprising the negligence (speeding, driving on the wrong side of the road, etc) and that loss had been caused by the negligence (physical injuries to his shoulder and wrist, etc). As Mr Wightman knew of facts which already amounted to a cause of action, the facts later learnt merely gave rise to an additional head of loss and could not form an essential element of his cause of action.
The plaintiff’s argument is also a simple one. Mr Wightman’s cause of action as pleaded is for both physical and mental harm caused by Mr Ireland’s negligence in breach of a duty of care. It is an essential element of the claim for mental harm that the plaintiff suffered a recognised psychiatric illness and that a reasonable person in the defendant’s position would have foreseen that the plaintiff might suffer a psychiatric illness.[9] The suffering by Mr Wightman of a recognised psychiatric illness, namely Adjustment Disorder with Anxiety, is an essential element of his cause of action. He only learnt that in April 2011.
[9] Civil Liability Act 1936 (SA) ss 33 and 53.
The resolution of the competing contentions requires analysis of the phrase “essential element of the plaintiff’s cause of action”.
Elements of cause of action
At first glance, the concepts of a cause of action and the elements of a cause of action appear straightforward. The elements of the cause of action in negligence are duty of care, negligence and causation of loss.
In Do Carmo v Ford Excavations Pty Ltd,[10] the High Court considered sections 57 and 58 of the Limitation Act 1969 (NSW), which are in very different terms to section 48 of the Act. Section 58(2)(a) referred to the applicant’s knowledge or ignorance of “material facts of a decisive character relating to the cause of action”. The High Court held that “cause of action” referred to the combination of facts which gave rise to the right to sue and that the applicant’s knowledge or ignorance of the legal implications of those facts (that they do in fact amount to a cause of action) was irrelevant.[11] That decision is of little assistance in the present case, as it does not address parallel horizontal elements of a cause of action. It is common ground in the present case that the plaintiff’s knowledge or ignorance that the known facts comprise a cause of action is irrelevant under section 48 of the Act.
[10] (1984) 154 CLR 234.
[11] Ibid at 245 per Wilson J (Deane J agreeing) and 253-254 per Dawson J (Brennan J agreeing).
Parallel elements of a cause of action
Sometimes, a plaintiff’s case is comprised merely of a series of linear elements (“vertical elements”): each element must be established for success and failure on any one element will result in failure of the action. However, it is more common for a plaintiff’s case to comprise parallel strands (“horizontal elements” or “horizontal strands”) at one or more vertical levels: the plaintiff needs to establish only one out of several parallel strands to establish a given vertical element of the cause of action. A plaintiff might fail on one horizontal strand but succeed on an alternative parallel strand when success on one or other of the horizontal strands is essential to success.
Three examples illustrate the position. A plaintiff’s case for personal injuries caused by negligent driving of a motor vehicle often encompasses multiple allegations of negligence. The case might be that the defendant was driving too quickly and/or on the wrong side of the road and/or failed to keep a proper lookout and/or was drunk. It might suffice if the plaintiff succeeds on any one of those four allegations. It might require a combination of two such allegations. Ultimately, the plaintiff might succeed on one or two of the allegations of negligence but not on the others.
A second example involves breach of contract. Sometimes a plaintiff’s case involves a single breach of a single term of a contract. However, it is relatively common for a plaintiff’s case to encompass a breach, by the same act or omission, of two or more terms of the contract. It might suffice if the plaintiff succeeds in respect of any one of those terms of the contract. Ultimately, the plaintiff might succeed in respect of one term but not the other.
A third example involves damages. Sometimes a plaintiff claims to have suffered a single head of damage via a single chain of causation. More commonly, a plaintiff claims to have suffered multiple heads of damage via either a single chain of causation or parallel horizontal chains of causation. For example, in a personal injuries case, a plaintiff might claim damages for non-economic loss (pain, suffering and loss of amenities of life) as well as economic loss (loss of wages). Ultimately, the plaintiff might recover one but not the other. For example, the plaintiff might succeed in recovering damages for pain and suffering but fail to prove that wages were lost as a result of the plaintiff’s injuries caused by the defendant’s negligence. Conversely, the plaintiff might recover lost wages but fail to recover for pain and suffering because of the operation of provisions such as section 52 of the Civil Liability Act 1936 (SA) (“the Civil Liability Act”).
Analogous issues with parallel elements
I pause to consider two different situations in which the existence of parallel cases may be relevant to issues involving a cause of action.
The first situation involves the doctrine of res judicata. The doctrine of res judicata was succinctly described by Diplock LJ in Thoday v Thoday[12] as follows:
… “cause of action estoppel” … prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties.[13]
[12] [1964] P 181
[13] Ibid at 197-198 per Diplock LJ
In applying the doctrine of res judicata, it is necessary to consider whether the cause of action asserted by a plaintiff in the second action is the same cause of action as or a different cause of action to that asserted in the first action. In making the assessment, the court is not confined to the specific factual elements of the cause of action advanced by the plaintiff in the first action. For example, if a plaintiff failed in a first action on the basis that the defendant was not proved to be negligent by driving at an excessive speed, a plaintiff could not usually bring a second action alleging that the defendant failed to keep a proper lookout. The cause of action encompasses both excessive speed and failure to keep a proper lookout.
The application of the res judicata doctrine gives rise to considerable difficulties in drawing the line between a new action being merely a variation of the cause of action the subject of the original action and the new action involving a different cause of action. In Port of Melbourne Authority v Anshun Pty Ltd,[14] Brennan J said:
There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment; sometimes to mean a right which has been infringed, and sometimes to mean the substance of an action as distinct from its form. Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merge of the cause of action in the judgment. In reference to res judicata, Dixon J said in Blair v Curran: "the very right or cause of action claimed or put in suit has ... passed into judgment, so that it is merged and has no longer an independent existence ... "
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment: thus in Brunsden v. Humphrey where the same act of negligence caused damage to the plaintiff's property and injury to the plaintiff's person it was held that different rights were infringed and that an action for damages for personal injury was not barred by recovery of a judgment for damage to property.
If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment. Thus in Lemm v. Mitchell a plaintiff in Hong Kong who failed in an action for criminal conversation because that right of action had been abolished by Ordinance could not sue when that right of action was retrospectively revived by a subsequent Ordinance.[15]
[Citations omitted]
[14] (1981) 147 CLR 589.
[15] Ibid at 610-611 per Brennan J.
In Republic of India v India Steamship Co Ltd,[16] the House of Lords held that, when a single incident involved the breach of two or more terms of the contract, there was a single cause of action and the plaintiff could not sue in a second action alleging a different breach of contract. Lord Goff (Lords Templeman, Jauncey, Mustill and Slynn agreeing) said:
The present case … is rather concerned with a single incident, ie, the fire during transit which broke out in the cargo over which the plaintiffs’ consignment of munitions was stowed, which resulted in the damage to that consignment and to loss (by jettison) of a small part of it. Furthermore, as appears from the pleadings, that loss or damage might have resulted from breach of more than one term of the contract, for example breach of the obligation to make the vessel seaworthy under article III, rule 1, of the Hague-Visby Rules, or breach of the obligation to load and stow, etc, the vessel carefully under article III rule 2. However, for present purposes, there is no need to distinguish between the two breaches; because the factual basis relied upon by the plaintiffs as giving rise to the two breaches is the same …[17]
[16] [1993] AC 410.
[17] Ibid at 421 per Lord Goff (Lords Templeman, Jauncey, Mustill and Slynn agreeing).
In Van Amstel v Country Roads Board,[18] O’Bryan J said:
A party may be justified in bringing separate actions for the breach of different terms or indeed of the same term in the same contract. This may be necessary in the case of a continuing contract where new breaches may occur after action brought and judgment has been given in respect of an earlier breach. What is prohibited under the estoppel rule and under the maxim nemo debet bis vexari pro eadem causa is the bringing of two suits for the one cause of action. Thus you cannot bring separate actions to recover different items or loss or damage for the breach of the same clause in a contract arising from the same act or omission.[19]
[18] [1961] VR 780.
[19] Ibid at 782 per O’Bryan J.
Another situation in which the question of parallel elements of a cause of action arises is where a plaintiff after expiration of the limitation period seeks to amend proceedings instituted before expiration. The general rule at common law is that a plaintiff is not permitted to so amend a pleading if it would have the effect of introducing a new cause of action.[20]
[20] Weldon v Neal (1887) 19 QBD 394 at 395 per Lord Esher (Lindley and Lopes LJ agreeing); Cliff v Quinn (1988) 54 SASR 151 at 161-162 per White J, 164-165 per Cox J and 166-167 per Perry J; Renowden v McMullin (1970) 123 CLR 584 at 613 per Owen J (Kitto and Menzies JJ agreeing).
The application of this rule gives rise to considerable difficulties in drawing the line between amplifying an existing cause of action and adding a new cause of action. In Agtrack (NT) Pty Ltd v Hatfield,[21] Ormiston JA said:
Some understanding of the history of the "rule" in Weldon v Neal is important, for its precise scope was, and is in those jurisdictions where it has not been entirely "abrogated", a matter of some dispute. Some courts, including the members of the Full Court of this state in Cutrona v Harnischfeger of Australia Pty Ltd, took a very strict view of what amendments should be permitted which might affect the operation of the Limitation of Actions Act, while other courts, such as the English Court of Appeal in Dornan v J W Ellis & Co Ltd, took a more benevolent approach. In substance the rule stated that no amendment should be permitted if the effect would be to allow a plaintiff to rely on a cause of action which was statute-barred at the time of the application. In its application there were more subtle nuances, for not every alteration to a former statement of claim was rejected, certainly where the amendments merely altered the non-material particulars of the existing claim, whereas, for the most part, an additional or substituted cause of action, different from one already pleaded, was almost invariably rejected. On some occasions the question arose whether the new or substituted cause of action was merely a new characterisation or categorisation to describe the material facts which had already been pleaded, as opposed to one which altered or added to those material facts.
…
Unfortunately, neither Weldon v Neal, nor, so far as I have been able to ascertain, any of the authorities upon which that decision was based, made clear precisely what amounted to a "new cause of action". The reasoning of the learned members of the Court of Appeal was very briefly stated in judgments given off the cuff, the substance of which I have just set out.
…
The primary difficulty was seen in determining what amendments to factual allegations gave rise to a new cause of action … Thus, on the one hand, it was said by Walsh J in O'Grady v Botany Wools (Australia), a judgment which was firmly approved by the Full Court in Cutrona and by Owen J on behalf of the majority in the High Court in Renowden v McMullin, that the rule applied where an amendment would introduce a new cause of action, but, on the other hand, it would not apply "when it would do no more than state in a different way, or give different or additional particulars in respect of, the same cause of action”.[22] …
[Citations omitted]
[21] [2003] VSCA 6; (2003) 7 VR 63.
[22] Ibid at 79-80, 81-82 per Ormiston JA.
In Borsato v Campbell,[23] McMurdo J said:
The term “cause of action” was defined in Cooke v Gill as being “every fact which is material to be proved to entitle the plaintiff to succeed”, a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland subsequently endorsed as a “fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended”. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described.[24]
[Citations omitted]
Subjective/objective assessment and timing of assessment
[23] [2006] QSC 191.
[24] Ibid at [8] per McMurdo J.
Beyond the complexity identified at [38] above involved in a parallel strand cause of action, an additional complexity is introduced by the reference in paragraphs (3)(b)(i) and (3a)(a) of section 48 to facts material to the plaintiff’s case forming an essential element of the plaintiff’s cause of action. Sub-sections 48(3)(b)(i) and (3a)(a) direct attention to the plaintiff’s subjective state of mind concerning facts which are material to the plaintiff’s case forming an essential element of the plaintiff’s cause of action, rather than (or in addition) to those facts which objectively are regarded as material to the plaintiff’s case and forming an essential element of the plaintiff’s cause of action. Moreover, attention is directed to the plaintiff’s state of mind at a time before institution of proceedings and necessarily before trial or judgment in the action, at which point ex hypothesi the plaintiff’s knowledge or belief about the facts will be incomplete and imperfect.
Further complexity is introduced by the fact that section 48(5) contemplates that a court may determine the question of an extension of time, and hence the materiality of facts known and not known to the plaintiff, before the substantive trial. In those circumstances, findings will need to be made concerning the plaintiff’s cause of action, its elements and their essentiality in ignorance of the ultimate findings to be made at trial of the objective facts.
When a plaintiff learns the facts in question, there is no legal certainty about those horizontal elements upon which the plaintiff will succeed, if indeed the plaintiff is to succeed at all. By contrast, after judgment in the action, it becomes a matter of legal certainty as to the horizontal elements upon which the plaintiff succeeded. The position was eloquently explained by Dixon J in Bank of New South Wales v Commonwealth[25] as follows:
There are few, if any, questions of fact that courts cannot undertake to inquire into. In fact it may be said that under the maxim res judicata pro veritate accipitur courts have an advantage over other seekers after truth. For by their judgment they can reduce to legal certainty questions to which no other conclusive answer can be given.[26]
[25] (1948) 76 CLR 1.
[26] Ibid at 340 per Dixon J.
This can be illustrated by a consideration of the three examples given above. In the first example involving parallel allegations of negligence given at [39] above, only when judgment is delivered will it be known which of the four allegations of negligence succeeded and which ultimately proved to be essential. If the judgment of the court is that the defendant was negligent by driving too fast but not in the other three respects, at that point driving too fast might be characterised as forming an (essential) element of the plaintiff’s cause of action and the other three allegations as not doing so. However, it does not follow from this that the other three aspects were not elements, or essential elements, of the plaintiff’s cause of action considered at the time when the plaintiff learnt the relevant new fact. In the second example involving multiple terms of contract given at [40] above, only when judgment is delivered will it be known in respect of which term(s) the plaintiff succeeded and which ultimately proved to be essential. In relation to the third example involving multiple heads of damages given at [41] above, only when judgment is delivered will it be known in respect of which head(s) of damage the plaintiff succeeded and which ultimately proved to be essential.
Assume in the first example that, before expiration of the limitation period, a plaintiff believes that the defendant was driving at an excessive speed but does not know that the defendant was drunk. Can it be said that knowledge acquired by the plaintiff after expiration of the limitation period that the defendant was drunk is of a fact which forms an essential element of the plaintiff’s cause of action? Does the answer depend upon the objective strength of the plaintiff’s case on excessive speed at the time of learning the new fact or upon the relative strengths of the cases involving each particular of negligence at that time? Does it depend upon the plaintiff’s knowledge or belief as to that strength when the plaintiff learns the new fact?
Assume in the second example that a plaintiff is aware, before expiration of the limitation period, of the conduct of the defendant which comprises a breach of a specific term of the contract but does not learn until after expiration of the limitation period of the existence of a different term of the contract which was also breached by the same conduct. Can it be said that the plaintiff learnt of a new fact forming an essential element of the plaintiff’s cause of action, being the existence of the second term of the contract, in circumstances in which the plaintiff already knew of the facts and circumstances relevant to the alleged breach of the first term of the contract? Does the answer depend upon the objective strength of the case involving the first term at the time of learning the new fact or upon the relative strengths of the cases involving each term at that time? Does it depend upon the plaintiff’s knowledge or belief of those strengths when the plaintiff learns the new fact?
The answers to these questions are rendered more difficult when the issue whether an extension of time should be granted is considered before the trial of the substantive action (as in the present case). In those circumstances, it will not be possible to have regard to the ultimate findings in the action as to what turned out to be the facts comprising the essential elements of the plaintiff’s cause of action.
The contemplation of the legislature
There is nothing in the drafting of section 48(3a)(a) which suggests that Parliament had in contemplation the difficulties which arise in cases involving parallel horizontal elements.
The defendant refers to the second reading speech by the Minister in relation to the Law Reform (Ipp Recommendations) Bill which introduced sub-section (3a) into section 48. It is appropriate to have regard to that second reading speech to identify the mischief to which sub-section (3a) was addressed and its purpose.[27] However, the relevant part of the second reading speech is of little utility in that regard. The Minister said:
First, it amends section 48 of the Limitation 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.[28]
Conclusion
[27] Owen v State of South Australia (1996) 66 SASR 251 at 256 per Cox J (Prior J agreeing).
[28] South Australia, Parliamentary Debates, Legislative Council, 15 October 2003, (Paul Holloway).
When a plaintiff has a claim comprising parallel horizontal elements, a fact which comprises one of those horizontal elements will comprise an “element of the plaintiff’s cause of action” within the meaning of section 48(3a)(a).
In the present case, Mr Wightman’s claim includes parallel causation of loss. The first limb involves Mr Ireland’s negligence causing the Commodore to collide with the other vehicle which in turn caused Mr Wightman to collide with the hard surfaces within the vehicle, which in turn caused him to sustain a dislocated shoulder and fractured wrist, which in turn caused economic and non-economic loss.
The second limb of causation involves Mr Ireland’s negligence causing the Commodore to collide with the other vehicle, which in turn caused Mr Wightman to collide with the hard surfaces of the vehicle, which in turn caused him to suffer an Adjustment Disorder and Anxiety, which in turn caused economic and non-economic loss.
Each chain of causation comprises an element of Mr Wightman’s cause of action. The fact that Mr Wightman suffered a psychiatric illness by way of Adjustment Disorder and Anxiety comprises an element of Mr Wightman’s cause of action.
If Mr Wightman had obtained judgment against Mr Ireland for damages for physical injury, he would have been precluded by the doctrine of res judicata from subsequently suing for psychiatric injuries. This tends to confirm that his having suffered a psychiatric injury is an element of his cause of action.
An essential element
The real issue is whether the suffering of the Adjustment Disorder and Anxiety formed an essential element of Mr Wightman’s cause of action. On the defendant’s most extreme construction, wherever there are parallel horizontal strands to a plaintiff’s cause of action, if the plaintiff is aware before expiration of the limitation period of a strand (however weak or inconsequential), learning of a second strand (however strong or important) cannot comprise learning a fact forming an essential element of the cause of action. On the plaintiff’s most extreme construction, learning of an additional strand, however weak or inconsequential, and however strong or important the previously known strands, would suffice to comprise learning a fact which forms an essential element of the plaintiff’s cause of action.
I consider that, in a case in which the new element forms a parallel strand in a plaintiff’s cause of action, the requirement that the new element be “essential” calls for an evaluative judgment. The evaluative judgment is to be made having regard to the plaintiff’s knowledge at the time of learning the new fact and involves weighing the strength and importance of the new strand against that of the existing parallel strand or strands of which the plaintiff was already aware.
The position at common law
I first consider the position at common law without regard to sections 33 and 53 of the Civil Liability Act. At common law, there is a single indivisible cause of action for all loss and damage suffered by personal injury as a result of negligence.[29] A plaintiff does not have one cause of action for physical injuries and a separate cause of action for psychiatric injuries.
[29] Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 230-231 per Hope JA (Clarke and Meagher JJA agreeing).
The position prior to April 2011 in relation to Mr Wightman’s physical injury strand was as follows. Assuming that Mr Wightman established negligence (a common pre-requisite for both the physical and psychiatric strands), Mr Wightman had a very strong, if not practicably irrefutable, case that Mr Ireland’s negligence caused him to suffer a dislocated shoulder and fractured wrist. In those circumstances, Mr Wightman’s learning of an additional strand involving the causation of psychiatric injuries cannot be characterised as relating to an “essential” element of his cause of action.
The impact of the Civil Liability Act
I turn to consider whether the provisions of the Civil Liability Act lead to a different result.
The material provisions of section 33 of the Civil Liability Act are as follows:
Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
(2) For the purposes of this section—
(a) in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:
(i)whether or not the mental harm was suffered as the result of a sudden shock;
(ii)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(iii)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(iv)whether or not there was a pre-existing relationship between the plaintiff and the defendant;
(b) in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose.
Section 53 of the Civil Liability Act provides:
Damages for mental harm
(1)Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or
(b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.
(2)Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness.
(3)Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness.
Section (3)(1) of the Civil Liability Act defines consequential and pure mental harm as follows:
“consequential mental harm” means mental harm that is a consequence of bodily injury to the person suffering the mental harm;
“pure mental harm” means mental harm other than consequential mental harm;
It can be seen that, in combination, sections 33 and 53 of the Civil Liability Act impose specific requirements which must be satisfied before a defendant will be liable for mental harm which would not have been suffered but for the defendant’s negligence. It must be established that:
1. a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness;
2. the plaintiff was physically injured or present at the scene or a prescribed relative of a person killed, injured or endangered; and
3. the plaintiff must have suffered a recognised psychiatric illness as a result of the negligence (other than in respect of a claim for non- economic loss resulting from mental harm which was a consequence of the physical injury).
Mr Wightman might be taken to have suggested at one point on appeal that sections 33 and 53 create a separate cause of action for loss suffered due to psychiatric illness or mental harm as a result of a defendant’s negligence as opposed to loss due to physical injury as a result of a defendant’s negligence if so, I reject that contention. It would be a very substantial step for the legislature to have taken to sever what is at common law a single indivisible cause of action. Such an intention should not lightly be imputed. While section 33(1) is expressed in terms of a defendant not owing a duty of care not to cause mental harm, which might be thought to suggest that it contemplates a separate cause of action, in substance it imposes a statutory remoteness test analogous to the common law test of remoteness in tort which requires that the type of damage be reasonably foreseeable by the defendant.[30] Section 53 is worded in a manner which indicates that it is addressing a different head of damages for the one cause of action rather than a distinct cause of action for psychiatric harm.
[30] See, for example, Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388 at 426 per Viscount Simonds; Chapman v Hearse (1961) 106 CLR 112 at 120-121 per Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ.
Given that, under the Civil Liability Act, there is still a single indivisible cause of action for physical and mental harm caused by negligence, the existence of sections 33 and 53 of the Civil Liability Act does not affect the analysis at [68] above. Mr Wightman’s learning that he suffered a recognised psychiatric illness, namely Adjustment Disorder with Anxiety, as a result of the collision involved his learning of an element of the cause of action within the meaning of section 48(3a)(a) of the Act. However, it was not an essential element of that cause of action because, to his knowledge, he already had a case for damages due to physical harm suffered in the collision as a result of what, at this point, is assumed to be the defendant’s negligence.
The Magistrate erred in concluding that the plaintiff was eligible to seek an extension of time under section 48(3a)(a) of the Act.
Major significance on assessment of loss
The Magistrate referred to Dr Litt’s report which diagnosed Mr Wightman with an Adjustment Disorder and Anxiety attributed to the motor vehicle collision. He concluded:
I am satisfied that potentially the Adjustment Disorder and Anxiety will have a significant impact upon the claim. I accept that the opinion of Dr Litt in itself amounts to a material fact which would have a major significance on the assessment of the plaintiff’s loss.
On appeal, the defendant contends that the Magistrate applied the wrong test by virtue of his use of the word “potentially” and the words “significant impact upon the claim” as opposed to “major significance on an assessment of the plaintiff’s loss”.
I reject that contention. The first sentence used by the Magistrate in the paragraph quoted above needs to be read in context as part of the entire paragraph. The Magistrate went on to conclude in the second sentence that the diagnosis of an Adjustment Disorder with Anxiety caused by the collision would have a major significance on the assessment of Mr Wightman’s loss. Section 48(3a)(b) itself uses the words “would have” because, when the plaintiff learns the new fact, the assessment of loss is a future and hypothetical activity. The Magistrate used the word “potentially” in the first sentence to designate that it relates to a future and hypothetical activity. When both sentences of the paragraph are read together, he clearly reached the conclusion that the diagnosis of the Adjustment Disorder and Anxiety amounted to a material fact which would have major significance on an assessment of Mr Wightman’s loss within the meaning of section 48(3a)(b).
The defendant contends that the Magistrate’s reasons for judgment are deficient because the Magistrate did not explain why the psychiatric injury would have major significance on an assessment of Mr Wightman’s loss. The defendant also contends that the evidence adduced by Mr Wightman at the preliminary trial was incapable of establishing that the psychiatric injury would have major significance on an assessment of Mr Wightman’s loss.
Meaning of “major significance”
The defendant contends that, to have “major significance” on an assessment of the plaintiff’s loss within the meaning of section 48(3a)(b), the impact of the fact must be high in both relative and absolute terms. The defendant contends that, if the impact is high in relative terms but small in absolute terms (for example involving a few tens of thousands of dollars), it is incapable of comprising “major significance”. Conversely, the defendant contends that, if the impact is high in absolute terms (for example comprising several hundreds of thousands of dollars), but small in relative terms, it is incapable of comprising “major significance”.
I reject the defendant’s contentions. The court is required to perform an evaluative exercise to determine whether the fact would have “major significance” on an assessment of the plaintiff’s loss. This does not require that the impact be high (or any other specific level) in both absolute and relative terms. It is simply a matter of weighing holistically the significance of the fact on the assessment considering its relative and absolute impact on the assessment of loss.
In construing the words “major significance”, it is appropriate to give consideration to the examples which appear below and are part of sub-section (3a). The examples may extend, but do not limit, the meaning of the provision and in particular of the words “major significance”.[31] The examples are as follows:
[31] Acts Interpretation Act 1915 (SA) ss 19(1)(c) and 19A.
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.
The examples suggest that the relative impact of the fact on an assessment of loss will tend to be more important than the absolute impact. A “substantial” reduction of the plaintiff’s capacity to work, a “substantial” increase in medical care required by the plaintiff or a “significant” loss of expectation of life tend to connote a relative assessment as opposed to requiring an absolute level of impact.
Assessment of significance of new fact to assessment
I have undertaken my own review of the evidence to form my own judgment whether the facts learnt by Mr Wightman in April 2011 would have major significance on an assessment of his loss.[32]
[32] In accordance with the principles identified in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23]-[31] per Gleeson CJ, Gummow and Kirby JJ.
The significance of those facts is to be assessed against the background of Mr Wightman’s physical injuries and their effects. Those injuries and their effects were already known to Mr Wightman before April 2011. Accordingly, I do not need to distinguish between the objective reality and Mr Wightman’s subjective knowledge.
Mr Wightman’s principal physical injuries were a dislocated shoulder and a fractured left wrist. He was admitted to hospital for three days, during which his right shoulder was re-located and his fractured wrist treated. He returned to hospital twice within the month following the injury. Beyond the period over which his injuries healed, they have not had a major impact upon his life or employment. As to his life, he has not been left with significant residual disabilities. Due to his limited residual disability, Mr Wightman is not likely to receive a large award for pain, suffering and loss of amenities of life.
As to his employment, Mr Wightman lost his job as a forklift driver as a result of his inability to perform his duties after the collision. After six months, he was rehired by his employer. It appears that he was fit to work before then but it took that long to secure re-employment. He has been in continuous employment since then, and it is unlikely that he would receive any significant award on account of loss of wages or earning capacity beyond $10,000 representing six months’ loss of wages and superannuation.
Mr Wightman’s medical expenses incurred as a result of his physical injuries totalled $7,208 and were principally incurred immediately after he suffered the injuries.
Based upon Mr Wightman’s evidence and Dr Litt’s medical report, the effect of Mr Wightman’s psychiatric injuries upon him has been substantial. Although he has not suffered any loss of wages to date, his psychiatric injuries are such that an assessment of loss would need to make a significant allowance for a diminution in his future earning capacity as a result of those psychiatric injuries. Although the only expense he has incurred to date is for the consultation with Dr Litt, an assessment of loss would need to make allowance for the likelihood that he will require future psychiatric treatment. The continuing and residual effects of his psychiatric injuries are likely to lead to a higher award for non-economic loss than for his physical injuries.
The parties made detailed submissions about likely assessments of the various heads of damage in respect of Mr Wightman’s physical and psychiatric injuries. Given the limitations of a preliminary trial, it is neither possible nor appropriate to undertake a monetary assessment in those two respects. As Mr Wightman was proceeding in the Magistrates Court, at all material times the maximum quantum of his total claim was the then jurisdictional limit of the Magistrates Court, namely $80,000. The assessment of Mr Wightman’s loss is likely to be increased as a result of incorporating his psychiatric injuries by at least 50 per cent and possibly up to 100 per cent above the level of assessment in respect of his physical injuries. The order of magnitude of the additional quantum is likely to be in the lower tens of thousands as opposed to thousands or hundreds of thousands of dollars.
Having regard to the evidence which was adduced at the preliminary trial, I am satisfied that the facts learnt by Mr Wightman in April 2011 would have major significance on an assessment of his loss.
The Magistrate was correct in concluding that the facts learnt by Mr Wightman in April 2011 would have major significance on an assessment of his loss.
Exercise of discretion: just in all the circumstances
Section 48(3b) of the Act provides:
(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.
Onus of persuasion
The defendant contends that the Magistrate’s exercise of the discretion miscarried because he posed for himself the wrong test by reversing the onus of persuasion. The defendant relies upon the following passage from the Magistrate’s reasons:
The defendant submits that it will be prejudiced if the application is granted, because the defendant through his mental disability will not be able to give evidence, [t]herefore the defendant will need to rely on the evidence of witnesses and in particular the evidence of Dr James and police witnesses to the accident. I do not consider these are sufficient to refuse the application under s 48(3b) of the Limitation of Actions Act.
I reject the defendant’s contention that the Magistrate reversed the onus of persuasion. Earlier in his reasons, the Magistrate had correctly identified that:
The power to extend the limitation period under section 48 of the Act requires me to be satisfied by the applicant … That in all of the circumstances of this case it would be just to grant an extension of time having regard to the matters set out in 48(3b)(a) to (d).
This demonstrates that the Magistrate was aware that the onus of persuasion was upon Mr Wightman. In the paragraph of his reasons quoted at [95] above the subject of criticism by the defendant, the Magistrate was only addressing a specific submission by the defendant as opposed to reaching an overall conclusion that it would be just to grant an extension of time. He was merely saying that that specific factor did not alter his overall conclusion that he was persuaded that it would be just to grant an extension of time.
Specific factors
The defendant also criticises the adequacy of the Magistrate’s reasons in that he did not, in this section of his reasons for judgment, explicitly address the three specific factors to which section 48(3b) requires the court to have regard.
Prejudice to fair trial
The first factor referred to in section 48(3b)(a) is as follows:
… the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial ...
In his reasons, the Magistrate identified the period of the extension as being from February 2008 to August 2011, which is 3½ years. The defendant accepts on appeal, and accepted before the Magistrate, that the passage of time has not adversely affected Mr Ireland’s capacity to give evidence because his mental disability has existed since the collision itself. The defendant contends on appeal, and contended before the Magistrate, that he has been prejudiced otherwise by the passage of time between the collision in February 2005 and the institution of proceedings in August 2011.
In Brisbane South Regional Health Authority v Taylor,[33] Ms Taylor sued the Health Authority for negligence by an employed gynaecologist, Dr Chang. Section 31 of the Limitation of Actions Act 1974 (Qld) conferred on the court a discretion to grant an extension of time if the preconditions were met, but contained no equivalent of subsection 48(3b)(a) of the Act. The Health Authority identified as a relevant prejudice the fact that Dr Chang would now have no recollection of the consultation (as well as that he could not now be located). The High Court held that this prejudice was not abrogated by the fact that Dr Chang may have had no recollection of the consultation immediately before expiration of the limitation period.[34]
[33] (1996) 186 CLR 541.
[34] Ibid at 548-549 per Toohey and Gummow JJ and 554-555 per McHugh J (Dawson J agreeing).
Because section 48(3b)(a) refers explicitly to “the period of extension sought”, it should be construed as referring to prejudice due to the passage of time since the limitation period expired rather than since the accrual of the cause of action. Over the period of the extension, it is extremely unlikely that there was any further failing of the memories of any relevant witnesses (the attending police officers or of Dr James). This is not to say that prejudice by reference to faded memories since the cause of action accrued is not to be taken into account generally under section 48(3b)(d): I address that below.
Certainty
The second factor referred to in section 48(3b)(b) is as follows:
… 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 ...
Given that Mr Wightman’s claim was limited to $80,000, this was not a case in which a grant of an extension of time in itself would have any impact upon insurance premiums. Rather, this was a generic factor to be considered in a similar manner to the way in which it would be considered in relation to any other claim for an extension of time in a personal injury claim in the Magistrates Court. The Magistrate referred generally to the need to have regard to the matters set out in paragraphs (a) to (d) and in the circumstances this demonstrates that he did have regard to this generic factor.
Plaintiff’s loss and parties’ conduct
The third factor referred to in section 48(3b)(c) is as follows:
… the nature and extent of the plaintiff’s loss and the conduct of the parties generally ...
Earlier in his reasons, the Magistrate referred to the plaintiff’s claim and the evidence which encompassed the nature and the extent of the plaintiff’s loss and the conduct of the parties generally. He addressed the reasons why Mr Wightman did not institute proceedings within the limitation period. He addressed this factor adequately.
General assessment of prejudice
I have given independent consideration to the prejudice identified by the defendant before the Magistrate and on appeal. In approaching an assessment of that prejudice, it is important to observe that in general terms the facts relevant to the nature and extent of prejudice to the defendant are exclusively within the knowledge of Mr Ireland and his insurer. In those circumstances, to the extent that prejudice is suggested over and above what would be presumed or inferred generally from the circumstances, the evidential onus lay upon the defendant.
Police officers
The first item of specific prejudice identified by the defendant on appeal is that Brevet Sergeant Drozd does not now have any recollection of the observations made at the scene of the collision on 13 February 2005. The defendant did not clearly articulate the issues at trial which are likely to be impacted by Brevet Sergeant Drozd’s lack of independent recollection or the manner in which or extent to which they would be so affected.
In his defence, the defendant admits that he was the driver of the Commodore at the time of the collision and that Mr Wightman was a passenger in the rear seat. He admits that the Commodore was travelling at approximately 80 kilometres per hour. While he does not admit negligence, he did not tender at the preliminary trial the Vehicle Collision Report or diagrams made or observations recorded by the Major Crash Investigation Unit (“the Investigation Unit”) of the location of the respective vehicles, marks on the road, etc. There is nothing in the evidence adduced which suggests that there is any uncertainty about the movement of the vehicles or other matters upon which Brevet Sergeant Drozd might have been able to give evidence of his own recollection if approached earlier and which are not recorded in the Investigation Unit’s records.
The defendant’s defence does raise the issue whether, contrary to Mr Wightman’s sworn evidence, Mr Wightman was not wearing a seat belt. In the absence of tender of the Investigation Unit’s records, there is no reason to believe that Brevet Sergeant Drozd or other officers would have ever been able to give any evidence relevant to that issue from their own recollection given that they were not present at the time of the collision.
The defendant in his defence pleads that Mr Wightman knew or ought to have known that Mr Ireland was only 14 years old, was unlicensed and had no experience driving a motor vehicle and this negated liability or alternatively amounted to contributory negligence. Again, in the absence of tender of the records of the Investigation Unit, there is no reason to believe that Brevet Sergeant Drozd or other officers were ever capable of giving evidence of their own recollection relevant to this issue.
There is another matter to be taken into account in assessing the existence or degree of prejudice in relation to the recollection of Brevet Sergeant Drozd’s or other officers. Ms Fedele suffered substantial injuries as a result of the collision and made a claim against Mr Ireland as early as November 2005. It may be expected that the Motor Accident Commission investigated the circumstances of the collision to assess and ultimately negotiate a resolution of her claim. No evidence was adduced on behalf of Mr Ireland as to that investigation or what was learnt as a result of it.
These considerations do not mean that no weight should be given to the risk of prejudice to the defendant by reason of the passage of time and its effect upon the memory of Brevet Sergeant Drozd or other officer. It is appropriate that some weight be given to what in the circumstances can only be characterised as an intangible prejudice. However, the position is different to a situation in which tangible and specific prejudice is identified. It is different to the situation considered by the High Court in Brisbane South Regional Health Authority v Taylor,[35] in which it was the very doctor alleged to have been negligent who could not now be located and whose memory was likely to have been impaired by the passage of time.
[35] (1996) 186 CLR 541.
Ms Paradiso in her first affidavit made reference to information from South Australia Police that Senior Constable Bissell was no longer employed by them and that they did not have his address. In her second affidavit, she merely said that she was undertaking ongoing inquiries with South Australia Police. There was no evidence adduced that Senior Constable Bissell cannot be located by the ordinary elementary inquiries available to a party. In his affidavit, Brevet Sergeant Drozd said that there were three other police officers who attended at the scene of the collision who are no longer working for South Australia Police. However, no evidence was adduced by the defendant that they cannot be located by elementary inquiries or that they have not in fact been located as a result of any such inquiries. Again, it is appropriate to give some weight to the likelihood that the memories of other police officers who attended at the scene of the collision have been adversely affected by the passage of time in the same way as in respect of Brevet Sergeant Drozd.
Medical evidence
The second type of specific prejudice identified by the defendant is that Dr James, Mr Wightman’s general practitioner at the time of the collision in February 2005, has not been located and his medical records from 2005 to mid 2007 have not been found. The inquiries identified by Ms Paradiso appear to have been relatively cursory. Given that Mr Wightman’s treatment for his injuries was principally at the Queen Elizabeth Hospital and the Motor Accident Commission has copies of those records, it is not apparent that Dr James would be capable of giving evidence which would be significant to the assessment of damages in this case. Again, it is appropriate to give some weight to an intangible form of prejudice in respect of Dr James.
Employment records
The third specific prejudice identified by Mr Wightman is that the Motor Accident Commission has a copy of Mr Wightman’s PAYG payment summary for the financial year ended 30 June 2005 but had not received from his employer other records relating to his employment history. In her second affidavit, Ms Paradiso said that she spoke to a personnel officer at the employer and was informed that the employer had changed its computing system in 2008 and did not know at that point whether Mr Wightman’s employment records had been retained. It is not clear whether Mr Wightman’s employment records are in fact available. It does not appear that there is any dispute that Mr Wightman was not employed between February and August 2005. He has been in continuous employment since August 2005.. In those circumstances, it is not apparent what is the relevance or importance of his employment records.
Overall assessment
On an overall assessment of the evidence, the defendant will not suffer significant specific prejudice as a result of the passage of time since February 2005 in respect of potential evidence by police officers, Dr James or Mr Wightman’s employer. It is appropriate to make a general allowance for intangible prejudice in this respect.
Weighing up the factors identified in section 48(3b)(a) to (d) in all of the circumstances, there was no obstacle to the Magistrate reaching the conclusion that it was just to grant an extension of time. It has not been demonstrated that his exercise of discretion was vitiated by the factors identified in House v The King.[36] If I were to exercise the discretion afresh, I would be disposed to exercise the discretion in favour of Mr Wightman.
[36] (1936) 55 CLR 499.
A note of caution
As observed at [4] above, on 18 May 2012 a Magistrate ordered that there be a preliminary trial on the time limitation issue on Mr Wightman’s application with Mr Ireland not opposing. There was no challenge on appeal to the decision to order a preliminary trial and I have determined the appeal on the merits.
However, I do not wish what would otherwise be my silence on the topic to be construed as general encouragement of preliminary trials on time limitation issues. In some cases, where the issues on extension of time applications are clear cut or where one party has a particularly strong case on the application, there will be advantages in the question being determined by way of preliminary trial and this will be in the interests of justice. On the other hand, there will be other cases in which it will be preferable and more efficient that all issues be determined at a single trial.
Where a plaintiff claims to have learnt a fact which forms an essential element of the plaintiff’s cause of action, the role of that fact as part of the plaintiff’s cause of action will be important in determining whether there should be a preliminary trial. At the risk of over-generalisation, when the new fact is one of two or more horizontal strands, that will weigh against a preliminary trial because the role and importance of those strands will be better assessed at the substantive trial; whereas, if the relevant fact is or relates to a single strand of a vertical element in the cause of action, that may weigh in favour a preliminary trial. At the same risk, when a plaintiff claims that a new fact would have major significance on an assessment of the plaintiff’s loss, that will weigh against a preliminary trial because its significance will be better assessed at the substantive trial. Similarly, if the application for extension of time turns on the exercise of the Court’s discretion as to what the justice of the case requires, that will weigh against a preliminary trial because issues of prejudice and such like will be better assessed at the substantive trial.
While at first blush it might be thought more efficient to determine an application for extension of time at a preliminary trial, depending on the circumstances, it may appear on fuller consideration that it is more efficient that there be a single trial at which all issues are determined together.
Conclusion
The Magistrate wrongly concluded that the facts learnt by Mr Wightman in April 2011 formed an essential element of his cause of action.
The Magistrate did not err in concluding that the facts learnt by Mr Wightman in April 2011 would have major significance on an assessment of his loss.
The Magistrate did not err in the exercise of his discretion in concluding that it was just to grant an extension of time.
The appeal is dismissed. I will hear the parties as to consequential orders.
5
20
0