Mulders v Rolls No. DCCIV-03-260

Mulders v Rolls
[2004] SADC 42
Judge Lee
Civil

This is an appeal from the decision of a Master pursuant to s.48(3) of the Limitation of Actions Act 1936 to grant to the plaintiff an extension of time to institute her action against the defendant.
In her amended statement of claim, the plaintiff alleges that she was adopted by the defendant when she was approximately six weeks of age, that between the years of 1983 and 1984 the defendant subjected her to sexual assaults and emotional distress, that she gave birth to a daughter by the defendant on 22 March 1985, and that, as a result of the defendant’s mental and sexual assaults, she has suffered personal injury, loss and damage.
Paragraph 14 of the amended statement of claim says:
“The Plaintiff seeks an extension of time to bring the action in this matter pursuant to Section 48 of the Limitations of Actions Act (SA). The Plaintiff determined facts material to this action as follows:
14.1 ….
14.2On the 15^th of July 2002 the Plaintiff first became aware of the results of the DNA test which established that the Defendant was the father of the Plaintiff’s daughter MELISSA.
14.3On the 4th of November 2002 the Plaintiff first became aware of the opinion of Marg Rowntree, that the Plaintiff’s gambling addiction was an effect of childhood sexual abuse.
14.4 On or about December 2002 the Plaintiff first became aware of the opinion of Helen Carrig of Relationships Australia who advised via report that the Plaintiff had suffered anxiety, depression and suicide ideation.”
The principal cause of action to arise from the pleadings is trespass to the person. As an intentional tort, trespass to the person is actionable without proof of damage. The cause of action arose at the latest in 1984. The limitation period of three years expired in 1987. The plaintiff commenced her action on 27 February 2003.
Section 48(3) of the Limitation of Actions Act provides:
“This section does not--
(a) apply to criminal proceedings; or
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.”
The plaintiff issued her proceedings within twelve months of the ascertainment of the facts pleaded in paragraph 14 of the amended statement of claim, and so her right to an extension turns upon whether any of those facts was a material fact and, if so, whether in all the circumstances it is just to grant the extension.
Before the Master, the plaintiff was unsuccessful with respect to the first fact, namely ascertainment of the result of the DNA test establishing that the defendant is the father of the child, and successful with respect to the second and third facts, namely ascertainment of Marg Rowntree’s opinion that her gambling addiction was an effect of the defendant’s sexual abuse, and ascertainment of Helen Carrig’s opinion to a similar effect.
Rule 97.01 provides that “an appeal pursuant to section 43(2) of the Act against an interlocutory judgment of a Master shall be by way of rehearing and, in matters involving the exercise of a discretion, the Judge may exercise his own discretion without regard to the manner in which it was exercised in the decision, order or direction appealed against”.
As to whether any of the facts was material to the plaintiff’s case in terms of s.48(3), I take the relevant principles to be as follows:
1. A fact is material if it is both relevant to the issues to be proved and of sufficient importance to be likely to have a bearing on the case: Sola Optical Australia v Mills (1987) 163 CLR 628 at 636.
2. A plaintiff is under no obligation to establish that the ascertainment of the material fact, or the material fact itself, operated on the plaintiff’s mind for the purpose of instituting proceedings; it is enough that the plaintiff establishes that the plaintiff learnt for the first time of a material fact within twelve months prior to the institution of proceedings: Wright v Donatelli (1995) 65 SASR 307 at 319.
In my opinion, each of the facts alleged by the plaintiff is a material fact for the purposes of s.48(3). The result of the DNA test will advance the plaintiff’s case at trial because, if it is admitted, the court will be able to resolve the issue of paternity by reference to a scientific test rather than the evidence and credit of the parties. The opinions of Marg Rowntree and Helen Carrig will advance the plaintiff’s case at trial because, if either is admitted, the court will have opinion evidence that the plaintiff suffers from a gambling addiction in consequence of sexual abuse.
Counsel for the appellant contended that the paternity established by the DNA test and the link which is the subject of the Rowntree and Carrig opinions were facts which the plaintiff was asserting well before March 2002.
In Sola Optical Australia v Mills, the High Court determined that the ascertainment of a medical report was material, not only because it disclosed for the first time that the plaintiff’s disabilities could be expressed in terms of an 80% loss of function, but also because (at page 638):
“…. the fact of the existence and contents of Mr Morgan’s report was also capable of being material to the respondent’s case in the sense that the report represented available evidence that could be called in support of her case.”
In Wright v Donatelli, one of the facts said to be material was a surgeon’s opinion expressed to the plaintiff at a consultation that tenderness in the xiphoid process was caused by a seatbelt in the accident and that it was a permanent problem. Lander J said of that fact (at pages 320 and 321):
“The first fact does not appear in the medical report, but is a matter communicated by Mr Cohen to the appellant at the time of the consultation on 19 July 1993. The fact communicated was the expression of Mr Cohen’s opinion. True it is that Mr Cohen’s opinion is based almost entirely on what he was told by the appellant, but that is not unusual. Almost all opinions in medical reports depend to an extent upon the history given by the party, the subject of the report. Some depend more heavily on a history than others, but that depends upon the matters of which complaint is made. Whilst it may be that Mr Cohen’s opinion is in accord with the appellant’s own knowledge, that does not mean that Mr Cohen’s opinion is not a material fact. I think the learning of Mr Cohen’s opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.”
It seems to me that both the DNA evidence and the opinion evidence in the case before me stand on the same footing as the medical report in Sola Optical v Mills and the surgeon’s opinion in Wright v Donatelli. The facts of the existence of the scientific and opinion evidence are capable of being material to the plaintiff’s case in the sense that they are evidence that could be called in support of her case. In relation to the DNA test, it is scientific evidence of paternity, rather than the paternity itself, which is the material fact in question. In relation to the Rowntree and Carrig opinions, it is opinion evidence supporting a link, rather than the link itself, which is the material fact in question.
Although counsel for the appellant submitted that the Rowntree and Carrig opinions are not expert opinions, and will not be admissible at the trial, the subject matter of the opinions seems to fall in an area of organised or recognised knowledge or experience such that a court would be assisted by a witness possessing special knowledge or experience in that area. Further, there is no reason at the moment to suppose that the persons in question have not acquired sufficient knowledge of the subject matter by study or experience. The test is discussed in R v Bonython (1984) 38 SASR 45 at 46 and 47. The more important point, however is that the defendant will have the right to challenge the admissibility of the opinions in due course, and the result of any such challenge will be for the trial judge to decide. Although Lander J in Wright v Donatelli was directing his attention to the question of weight, the following passage from his judgment seems to me to apply with equal force to the question of admissibility (at 317):
“It is not the purpose of the inquiry on an application under s 48(5) to test the accuracy of the opinion offered, or whether in due course the opinion of that doctor will be accepted. The inquiry is simply to determine whether facts material were ascertained.”
Given that the scientific and opinion evidence are facts material to the plaintiff’s case, can it be said that in all the circumstances of the case it is just to grant the extension of time? Generally speaking, the circumstances to consider are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed, the prejudice to the defendant if it is not, and the conduct of the defendant in the litigation: Ulowski v Miller [1968] SASR 277 at 283. There are compelling reasons why limitation periods should ordinarily be observed, and an applicant for an extension bears the onus of satisfying the Court that the discretion should be exercised: Brisbane South Regional Health Authority v Taylor (1966) 70 ALJR 866.
In his submissions on this question, counsel for the defendant did not suggest that any relevant evidence has been lost, or that memories have faded, or that witnesses are no longer available, or that the affluxion of time would prejudice the defendant in the preparation and conduct of his defence. Instead, counsel spoke of the length of the delay, the doubtful legal basis of the action, the lack of merit, the speculative nature of the damages claimed, and the poor health of the defendant and his wife. Having weighed all these various matters in the scales, I am of the opinion that the plaintiff has established that in all the circumstances of the case it is just to grant the extension of time.
For these reasons, I agree with the Master that an extension should be allowed. The appeal is dismissed.

[2004] SADC 42

5 March 2004