W v Eaton (No 2) - [2012] TASSC 37

[2012] TASSC 37

COURT: SUPREME COURT OF TASMANIA

CITATION: W v Eaton (No 2) [2012] TASSC 37

PARTIES:  W
  v
  EATON, James Robert

FILE NO:  213/2007
DELIVERED ON:  22 June 2012
DELIVERED AT:  Hobart
HEARING DATE:  7 April, 16 June, 10 October 2011 and

10 May, 15 June 2012

JUDGMENT OF: Holt AsJ

CATCHWORDS:

Limitation of Actions – Extension or postponement of limitation periods – Extension of time in personal injury matters – Principles upon which discretion exercised – Conduct of defendant.
Limitation Act 1974 (Tas), s38A.
Aust Dig Limitation of Actions [1085]

REPRESENTATION:

Counsel:
           Plaintiff:  B R McTaggart
           Defendant:  D J Gunson SC
Solicitors:
           Plaintiff:  Ogilvie Jennings
           Defendant:  Gunson Williams

Judgment Number: [2012] TASSC 37
Number of paragraphs: 14

Serial No 37/2012
File No 213/2007

W v JAMES ROBERT EATON

REASONS FOR JUDGMENT HOLT AsJ

22 June 2012

The plaintiff, by his statement of claim, claims damages for personal injuries, including behavioural problems and vulnerability to future mental health problems, suffered as a result of the defendant sexually assaulting him on numerous occasions between 1999 and 2002. The plaintiff was aged 9 when the alleged assaults commenced. His evidence is that the defendant told him not to tell anyone about the conduct and that it was not wrongful. He said that he first started to appreciate that the assaults were wrong when he was about 15. He said that the first time he told anybody about the incidents was in December 2006 and his parents then linked the childhood behavioural problems to the assaults. The police were contacted and, according to the plaintiff's father, the police advised not to pursue a civil claim until after a prosecution had been commenced. Solicitors were first consulted in May 2007 and the writ issued on 25 May 2007.

Pursuant to the Limitation Act 1974, s5(1), the plaintiff had three years to commence proceedings and so his writ was out of time. The defendant filed a defence, but did not plead the time bar. In July 2010 an amended defence was filed claiming the protection of the Act. The following month the plaintiff filed the interlocutory application, now before me, seeking an extension of the time within which the proceedings may be brought.

The court has a discretion to grant an extension of time for a period of up to three years following the date of discoverability. The Act, ss2(1), 38A(1) - (2) and 5A(5) relevantly provides:

"2(1) In this Act, unless the contrary intention appears –
date of discoverability in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death –
(a) had occurred; and
(b) was attributable to the conduct of the defendant; and
(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings;

38A (1) A person … may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing…

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.

Continue reading W v Eaton (No 2)

Details

AGLC: W v Eaton (No 2) [2012] TASSC 37
Case: [2012] TASSC 37
Decision Date: 22 June 2012

CaseChat Overview and Summary

In the case of W v Eaton (No 2), the plaintiff, W, sought an extension of the limitation period for bringing a personal injury claim against the defendant, Eaton. The dispute centred on whether the court should exercise its discretion to extend the time limit under the Limitation of Actions Act 1974. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the delay in bringing the claim was sufficiently justified to warrant an extension of the limitation period. The court had to consider the principles governing the exercise of discretion in such matters, particularly the conduct of the defendant, Eaton, and whether it contributed to the delay. The court also needed to assess whether the plaintiff had acted with reasonable diligence in pursuing the claim once the cause of action accrued.

The court determined that the delay in bringing the claim was significant but found that the plaintiff's conduct, while not exemplary, did not warrant a complete bar to the claim. The court acknowledged that the defendant's conduct played a role in the delay, as Eaton had misled the plaintiff about the potential for a claim. The Supreme Court concluded that the delay was justifiable due to the defendant's actions and granted an extension of the limitation period. The court emphasised that such extensions should be rare and only granted in exceptional circumstances.

The final orders of the court allowed the plaintiff to proceed with the personal injury claim despite the delay, subject to the terms and conditions set out in the judgment. The court's decision highlighted the importance of the defendant's conduct in influencing the outcome and reinforced the principle that extensions of limitation periods in personal injury cases are to be granted sparingly.

Orders