Mulders v Rolls No. DCCIV-03-260 - [2004] SADC 42

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] SADC 42
Decision Date: 5 March 2004

CaseChat Overview and Summary

Mulders v Rolls is an appeal against a decision of a Master under s.48(3) of the Limitation of Actions Act 1936 to grant the plaintiff an extension of time to institute her action against the defendant. The plaintiff alleges that she was sexually assaulted and emotionally distressed by the defendant during her adoption and that she suffered personal injury, loss and damage as a result. The plaintiff commenced her action on 27 February 2003, which was outside of the three-year limitation period that expired in 1987. The plaintiff seeks an extension of time to bring the action based on facts that she became aware of in 2002, including the results of a DNA test which established that the defendant was the father of her daughter and opinions from two professionals regarding her gambling addiction and mental health.

The court must determine whether any of the facts relied upon by the plaintiff were material and, if so, whether it is just to grant an extension of time. The court found that each of the facts alleged by the plaintiff is material to her case as they are evidence that could be called in support of her case. The court also found that in all the circumstances of the case, it is just to grant the extension of time. The court considered factors such as 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.

The court dismissed the appeal and agreed with the Master that an extension should be allowed. The court found that the plaintiff had established that in all the circumstances of the case it is just to grant the extension of time. The court did not consider it relevant to 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 court held that the inquiry is simply to determine whether facts material were ascertained.

The final orders of the court were that the appeal be dismissed, and an extension of time be granted to the plaintiff to institute her action against the defendant.

Orders