Saunders v Jackson

[2009] NSWCA 192

New South Wales

Court of Appeal

CITATION:	Saunders & Anor v Jackson [2009] NSWCA 192
HEARING DATE(S):	01/07/2009
JUDGMENT DATE:	10 July 2009
JUDGMENT OF:	Ipp JA at 1; Macfarlan JA at 2; Hoeben J at 3
DECISION:	Leave to appeal granted. The appeal be dismissed with costs.
CATCHWORDS:	LIMITATION OF ACTIONS - suspension of limitation period as a result of disability under s 52 of Limitation Act 1969 (NSW) - opponent substantially impaired in management of affairs in relation to cause of action by reason of mental condition - opponent suffering from depressive illness - opponent unable to reason normally about various aspects involved in bringing a claim.
LEGISLATION CITED:	Evidence Act 1995 Limitation Act 1969 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Kotulski v Attard [1981] 1 NSWLR 115 at 117-118 Olive v Johnstone [2006] NSWCA 21 at [61] State of New South Wales v Harlum [2007] NSWCA 120 at [61] State of New South Wales v Julianne Higgins by her tutor David Benedict O’Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244 at [20]
PARTIES:	Wendy Kim Saunders - Claimant Kenneth Brian Saunders - Claimant Nicole Ann Jackson - Opponent
FILE NUMBER(S):	CA 40643/2007
COUNSEL:	DA Priestley - Claimants RE Quickenden/G Dilworth - Opponent
SOLICITORS:	Smyth Turner Wall - Claimants Brazel Moore - Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	5828/2006
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	29 June 2007

CA 40643/2007
DC 5828/2006

IPP JA
MACFARLAN JA
HOEBEN J

Friday 10 July 2009

Wendy Kim SAUNDERS & Anor v Nicole Ann JACKSON

JUDGMENT

1 IPP JA: I agree with Hoeben J.

2 MACFARLAN JA: I agree with Hoeben J.

:

Nature of Proceedings
The opponent brought proceedings in the District Court for damages for personal injury of a psychiatric nature arising from sexual and physical assaults said to have occurred between 1978 and 1987 when the opponent was a minor. The opponent’s date of birth was 14 April 1972 and accordingly she attained the age of 18 years on 14 April 1990.

4 The assaults were said to have been committed variously by the opponent’s elder sister (the first claimant) and that elder sister’s then boyfriend and later husband (the second claimant).

5 The Statement of Claim commencing the proceedings was filed on 30 August 2004. The proceedings were thus brought well out of time. Absent other considerations, the limitation period for this cause of action would have expired on 14 April 1996 (s 14(1)(b) Limitation Act 1969 (NSW) (the Act)).

6 The opponent filed a Notice of Motion seeking an extension of time on 11 October 2005. When that application came on for hearing on 27 March 2007, the opponent also argued that she had been under a disability within the meaning of s 11(3) of the Act. She submitted that s 52 of the Act suspended the running of the limitation period while she suffered from that disability. The disability relied upon by the opponent was not…