Marcantelli v Osmond

[2001] NSWSC 565

CITATION:	MARCANTELLI v OSMOND [2001] NSWSC 565
FILE NUMBER(S):	SC 20624/00
HEARING DATE(S):	25 June 2001
JUDGMENT DATE:	6 July 2001
PARTIES :	Mable Florence Marcantelli (Plaintiff) Kenneth Anthony Osmond (Defendant)
JUDGMENT OF:	Newman AJ at 1

COUNSEL :	J. Coombs QC / D.R. Russell (Plaintiff) M. Windsor (Defendant)
SOLICITORS:	Commins Hendriks (Plaintiff) Blake Dawson Waldron (Defendant)
CATCHWORDS:	Limitation of Actions - Extension of period - Statutory requirements for - Personal injury case - Material facts of decisive character - Plaintiff's knowledge of relevant material facts - Limitation Act 1969, s 58(2)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Do Camo v Ford Excavation Pty Ltd (1984) 154 CLR 234 Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 @ 291
DECISION:	See paragraph 20.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Friday, 6 July 2001

20624/00 - Mable Florence MARCANTELLI v Kenneth Anthony OSMOND

JUDGMENT

1   HIS HONOUR: This is an application for the extension of time for the filing of a statement of claim made pursuant to s 58 of the Limitation Act 1969.

2 This matter has an unfortunate forensic history. Originally the plaintiff brought an application for extension of time under s 60(1)(a)(iii) of the Limitation Act 1969. On 3rd March 1995 Master Greenwood granted that extension. However, on 25th March 1997 Temby AJ set aside Master Greenwood’s order. The matter next came before the Court on this application before Master Harrison. On 8th May 1998 Master Harrison dismissed an application brought on behalf of the defendant that this application be summarily dismissed. Having so ordered the learned Master referred the matter for a Judge for determination. It is a consequence of that latter order that the matter is now before the Court.

3   I turn now to the factual background to the matter.

4   On 19th January 1988 the plaintiff went to the surgery of the defendant, a general practitioner, to have wax removed from her ears. The procedure involved the defendant utilising a syringe so to do. Having successfully completed the procedure in respect of her left ear when performing the procedure on her right ear the syringe broke. The plaintiff suffered immediate and severe symptoms. As a consequence she was later taken to the Wagga Base Hospital where she remained for about a week. Thereafter the principle symptoms of which she complained were complete deafness in her right ear and giddiness which became manifest when she adopted certain bodily positions.

5   She also suffered from tinnitus. These conditions have, as I understand the plaintiff’s evidence, continued to the present day.

6   Putting aside questions of time limitation ex facie the plaintiff would appear to have a strong case against the defendant. Indeed as I understand the affidavit evidence she was aware of this well before the expiration period but because of her long standing relationship with the defendant she was unwilling to take action against him.

7   The plaintiff has deposed that a change occurred in her attitude towards taking action against the defendant as a consequence of incidents which occurred in May 1993 and what followed thereafter. She has deposed that on 17th May 1993 an incident occurred when she experienced a sound as if lightning was exploding inside her head causing tingling and numbness down the right side of her face. On 20th May 1993 she deposed that a similar but more severe attack occurred. On that occasion she also suffered from the sensation of pins and needles all over her body.

8   Thereafter her evidence was that her emotional state deteriorated.

9   She was seen by Mr Peter Baynes, a duly qualified psychologist, on 28th October 1993 and 11th November 1993. Having carried out psychological testing, Mr Baynes came to the conclusion that the plaintiff was suffering from a severe post traumatic stress disorder with indications of chronic depression and a generalised anxiety disorder which he related to the incident of the 19th January 1988 when she was receiving treatment to her ears by the defendant. I should add that Mr Baynes did not in his report tendered to the Court nominate the events of May 1993 as having any special significance in the plaintiff’s condition. Indeed a Dr Walker, a general practitioner, to whom she was referred was unable to determine how the attacks suffered by the plaintiff in May 1993 were related to the subject injury. It was not until 19th October 1994 that a Dr Brooder, a Consultant Neurologist, to whom the plaintiff had been referred by Dr Walker came to the conclusions that the symptoms manifest in May 1993 were related to her injury of January 1988.

10   It follows that the plaintiff at least has an arguable case that the symptoms she suffered in May 1993 were related to the surgical procedure carried out on 19th January 1988. It was her case it was only after the incidents in May 1993 and the subsequent deterioration in her emotional condition that she decided to take action against the defendant.

11   It is the plaintiff’s case that she was unaware before May 1993 that she was suffering from the psychological condition diagnosed by Mr Baynes in his report before the Court. Additionally it is part of her case that the events of May 1993 were of such significance that they preceded a decisive downturn in her condition. By “condition” the plaintiff is referring to her psychological condition not her physical condition resulting from the surgical procedure of 19th January 1988.

12 In this matter the plaintiff relies upon s 58 (2) of the Limitation Act 1969. Section 58 (2) is in these terms:-

Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:
(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period fro the cause of action; and
(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,
the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly.

13   Essentially the question which arises for decision in this matter is whether the events in May 1993 were of such a substantive nature which led the plaintiff to learn of her psychological condition as diagnosed by Mr Baynes and supported by Dr Brooder. On the other hand the defendant argues that the events of May 1993 were adjectival in character and therefore were not material facts of a decisive character.

14   It is important for me to observe at this point that the plaintiff was extensively cross-examined by counsel for the defendant. The plaintiff I find to be a truthful witness who is also reliable.

15   In support of his contention that the events of May 1993 were merely of adjectival character counsel for the defendant relied upon a number of authorities. First, he relied upon what fell from the High Court in Do Carmo v Ford Excavation Pty Ltd (1984) 154 CLR 234. In particular he referred to Wilson J’s statement at 248 that:

‘… [A material fact] will not be a material fact of a decisive character if the reasonable man, having taken appropriate advice on the facts of which the appellant did have knowledge, would regard those facts as showing that an action would have reasonable prospects of success…’

16   Also he relied upon Deane J’s analysis at 250 - 251 where His Honour said:-

‘The legislative policy underlining the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve month before the commencement of proceedings. In that context, the reference in s 58 to “any” of the material facts of a decisive character not being within the means of knowledge of the applicant should be construed as being to a fact or facts which would need to be within the knowledge of an applicant before it could be said that the facts within his means of knowledge constituted “material facts of a decisive character”. Thus, if any one of facts A, B or C would, with other facts within the means of knowledge of the applicant, satisfy the requirements of “material facts of a decisive character”, it will not suffice, for the purpose of section 58, that the applicant was unaware of fact A while being aware that he had a worthwhile cause of action in that the was aware of both facts B and C. In such a case, the applicant will only be, for the purposes of section 58, unaware of “any’ of the material facts of a decisive character if the was unaware or facts A, B and C that is to say, if the facts which were within his means of knowledge were not, of themselves such as to constitute material facts of a decisive character.
…
Subject to an important qualification, one or more of the material facts of a decisive character will be shown not to have been within the means of knowledge of an applicant if it appears that an applicant did not have within his or her means of knowledge some fact or fact which, in the context of the fact or facts within his or her means of knowledge, made the difference between his or her having and not having a worthwhile cause of action.’

17   Furthermore he relied upon the comments of Samuels JA in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 @ 291 where His Honour observed as follows:-

‘It appears to me … that … it is legitimate to inquire as to what the material facts were at a point before the claim was made and that the application of the two sections does depend upon the stage at which “minimum material facts” came within the means of knowledge of the claimant.’

18   However, in Royal North Hospital v Henderson Mahoney JA at 300 observed as follows:-

‘In one sense, s 58(2)(a) requires a judgment to be formed as to when a reasonable man ought to sue and, consequently, it looks to when such a person, knowing that he has a relevant cause of action, may be excused from not suing. There is no provision in this form in the English legislation. However, reference has been made, in pointing to the mischief to be remedied by s 57(1)(c)(ii), to the report of the Law Reform Commission of New South Wales on Limitation of Actions (LRC 3 - October 1967, par 296 et seq). The provision is not directed to excusing inadvertence, or inadvertence as such. It assumes appropriate knowledge and advice as to a plaintiff’s rights and looks to considerations which justify a decision not to exercise them, or not to exercise them at the particular time. And it requires a determination to be made of when the plaintiff is to be expected, for the purposes of this rights under the sections, to have taken action.
Under the general law, the judgment of such a question is simple: he ought to bring an action within the limitation period. This provision substitutes criteria for deciding when be ought to bring the action other than the limitation period: these are his own interests and his circumstances. In a sense, its purpose is to provide considerations justifying delay in bringing an action.
These criteria are not unlimited. They are, as I have said, limited to “his own interests” and “his circumstances”. He may not, for example, delay merely because of the interests or circumstances of others, unless their interests or circumstances be also his.’

19   Accepting as I do the plaintiff as a witness of truth I am of the view the manifestation of her psychological symptoms exposed by the events of May 1993 were material facts of a decisive character relating to the cause of action which were not within the means of knowledge of the plaintiff until that time. In other words I am of the view that following the approach of the majority of the Court of Appeal in Royal North Shore v Henderson that in fact the events of May 1993 are substantive events and not merely adjectival events. There are no matters of discretion which would prevent an order in the plaintiff’s favour (none were strenuously argued by the defendant). In my view therefore the plaintiff ought to succeed and time should be extended for the issue of proceedings until 20th May 1994.

20 The order of the Court pursuant to s 58(2)(a) of the Limitation Act is the limitation period for the plaintiff’s cause of action is to be extended so as to expire one year after 20th May 1993. The defendant is to pay the plaintiff’s costs of this application.

Last Modified: 07/10/2001