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

1. 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.

1. 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.

1. 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 on the date of discoverability.

(2) A judge may extend the period of limitation specified in subsection (1) having regard to –

(a)      the justice of the case; and

(b)      the matters mentioned in section 5A(5)(a), (b)and (c).

5A(5)   …

(a) whether the passage of time has prejudiced a fair trial of the action;          and

(b)      the nature and extent of the plaintiff's loss; and

(c)the nature of the defendant's conduct." 

1. The reference in s38A(2)(a) to "the justice of the case" is indistinguishable from the reference to what is "just and reasonable" as considered by the Full Court in Hill v Iluka [2002] TASSC 113. There it was held at par23 that in most cases attention is directed to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice which the delay has caused and/or will cause to the defendant. Delay in prosecuting an application for an extension of time is to be taken into account (Norris v McGeachy [2010] TASFC 4 at par26). Under s38A(2)(b) the additional considerations are the nature and extent of the plaintiff's loss and the nature of the defendant's conduct.

1. No question of whether or not to grant an extension of time to the date of the issue of the writ will arise unless the date of discovery was within three years of that date. 

1. Three years before the issue of the writ the plaintiff was aged 13. His uncontested evidence was that he had been told by the defendant that the conduct was not wrong and not to disclose it and he did not then know that what had happened was wrong and had not told anyone about it. He had not linked the assaults to any injury suffered by him. The uncontested evidence from psychiatrist, Dr Auchincloss was that it is "usual and understandable" for victims of sexual assault of the type alleged not to disclose the conduct. Dr Auchincloss also said that where behavioural problems follow it is reasonable for the child or young victim not to associate those problems with the assaults. It follows from this evidence that three years before the issue of the writ the plaintiff neither knew nor ought to have known that he had suffered injury attributable to the defendant's conduct. Accordingly the date of discoverability was within three years of the date of the issue of the writ and so the s38A(2) discretion to extend time to that date arises.

1. It was conceded on behalf of the defendant that the plaintiff has an arguable case.  The defendant does not claim that delay has or will cause specific prejudice if an extension of time is granted.  The defendant does not claim that the delay had not been satisfactorily explained.  This leaves for consideration only two matters raised by the defendant in opposition to the application.  The first is the general prejudice to the fair trial of an action which occurs because of lengthy delay between the occurrence of the conduct complained about and the trial.  The second being the nature and extent of the plaintiff's loss.

1. I attach little weight to the matter of general prejudice resulting from delay.  On the hearing of the application the defendant did not contest the assertions that the assaults had occurred, that it was usual for many child victims not to disclose such conduct, that the defendant had told the plaintiff not to disclose the conduct and that it was not disclosed for several years.  The delay and any resultant general prejudice is therefore attributable to the defendant.  It is the defendant's conduct which has resulted in the need for the plaintiff to apply for an extension of time and it would not be just to refuse the application influenced by any prejudice to the defendant which may have resulted from the delay.

1. Counsel for the defendant made much of the fact that the plaintiff's behavioural problems have now largely abated so that the plaintiff is not suffering from a psychological disorder and does not require treatment.  Further, counsel for the defendant referred to the reports of psychiatrist, Dr Morgan, to whom the plaintiff had been referred during childhood for his behavioural problems.  The sexual assaults had not been disclosed to Dr Morgan and so he identified a number of possible other causes for the behaviour.   The defendant's contention being that the evidence presented on the hearing of the application was insufficient to support a finding that the plaintiff had suffered any material resultant injury.

1. The opinion of psychiatrist Dr Auchincloss is that in the past the plaintiff had suffered from "adjustment disorder with angry and irritable mood caused by the defendant's sexual assaults" and that the plaintiff is at risk of developing "complex post-traumatic stress disorder".  Dr Auchincloss said of sexual assault:  "it is in the hierarchy of stresses, it is much higher than the other ones …". 

1. The evidence is that the plaintiff's behavioural problems had a significant impact on his schooling and family life.  Whether or not such problems would constitute injury for the purpose of the law of negligence is irrelevant in an action for intentional trespass to the person.  In State of NSW v Radford (2010) 79 NSWLR 327 Sackville AJA (with whom Beazley JA and MacFarlan JA agreed) said at par110:

"… In the context of an action based on intentional trespass to the person, the expression 'damages for personal injury' seems to me to be not inapt to describe damages for feelings of humiliation, indignity, distress and anxiety caused, for example, by a deliberate assault.  Such an award, whether by way of ordinary compensatory damages or aggravated damages, is designed to compensate for mental suffering that is personal to the plaintiff and is clearly injurious to him or her.  … I see no compelling reason to introduce … concepts developed in relation to the law of negligence, but which do not apply to intentional torts." 

1. It may be that after the exhaustiveness of a trial conclusions are reached that the plaintiff's behavioural problems were not attributable to the assaults or otherwise that the assaults have not occasioned significant injury or loss.  However, this is not a matter to be resolved on an extension of time application.  Limitation legislation is concerned with the time within which claims may be brought rather than the substantiation of claims.  In this context the reference in the Act to "the nature and extent of the plaintiff's loss" must be taken to include the claimed, albeit unproven, loss.  In any event, the evidence presented on the hearing of the application was sufficient to demonstrate the existence of an arguable case that the defendant's conduct caused material injury.

1. It has been conceded that the plaintiff has a cause of action. The delay in issuing the writ and hence any resultant prejudice is attributable to the defendant's conduct. The delay in filing the extension of time application is attributable to the defendant not claiming the protection of the Limitation Act until an amended defence was filed two years after the original defence. There have been delays in the progress of the application, but they were not the subject of complaint on behalf of the defendant. The claim is for loss which is not insignificant and there is evidence to support the existence of such loss. I conclude that the plaintiff should have a favourable exercise of the discretion.

1. There will be an order that the time within which the plaintiff's action may be commenced is extended to the date of the issue of the writ, namely 25 May 2007.