Thompson v Sra [2001] NSWCA 429 (30 November 2001)

Last Updated: 13 December 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: THOMPSON v SRA [2001] NSWCA 429

FILE NUMBER(S):

41042/00

HEARING DATE(S): 23 November 2001

JUDGMENT DATE: 30/11/2001

PARTIES:

DAVID CLAYTON THOMPSON

v

STATE RAIL AUTHORITY OF NEW SOUTH WALES

JUDGMENT OF: Sheller JA Hodgson JA Rolfe AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4945/00

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:

Appellant - M I Bozic SC/R L Ingram

Respondent - J P Guihot

SOLICITORS:

Appellant - Taylor & Scott

Respondent - Blackmore & Associates, Edgecliff

CATCHWORDS:

LIMITATION OF ACTIONS - appeal against refusal to extend time under s 52(4) of the Motor Accidents Act 1988 -extension sought for action to recover damages for nervous shock allegedly caused by incident that occurred 11 years ago - prejudice to defendant - whether trial Judge erred in concluding there would be significant prejudice to defendant and there could not be a fair trial

LEGISLATION CITED:

Motor Accidents Act 1988

DECISION:

Leave to appeal refused

The claimant pay the opponent's costs of the application for leave to appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41042/00

DC 4945/99

SHELLER JA

HODGSON JA

ROLFE AJA

30 November 2001

Thompson v State Rail Authority of New South Wales

Judgment

1 Sheller JA: I agree with Rolfe AJA.

2 Hodgson JA: I agree with Rolfe AJA.

Introduction

3 Rolfe AJA: The claimant, Mr David Clayton Thompson, for whom Mr M I Bozic of Senior Counsel and Mr R L Ingram of Counsel appeared, seeks Leave to Appeal against decisions of Garling DCJ whereby he dismissed proceedings brought by the claimant against the opponent, State Rail Authority of New South Wales, for which Mr J P Guihot of Counsel appeared, and refused to extend the time within which such proceedings may be brought pursuant to s 52(4) of the Motor Accidents Act 1988 ("the Act").

4 Mr Thompson was born on 14 June 1978 and, on 11 March 1988, when he was aged 9 years, his father was killed in a train accident. The provisions of the Act then applied to the giving of a Notice of Claim as a pre-condition to the bringing of proceedings in such circumstances. No such notice was given prior to the claimant's filing a Statement of Claim on 1 July 1999, in which he sought to recover damages from the opponent for nervous shock, allegedly caused by hearing of his father's death.

5 It was submitted to Garling DCJ that a claim, pursuant to s 43 of the Act, had been made when one was made by Mr Thompson's mother, on her own behalf, and on behalf of her children, under the Compensation to Relatives Act. His Honour rejected that submission and struck out the Statement of Claim because of the failure to give notice. On the hearing of the appeal, Mr Bozic stated that this decision was no longer the subject of challenge.

6 The only issues litigated in this Court were whether his Honour was in error in failing to give adequate reasons and to have regard to relevant material, and whether it was open to him to find that Mr Thompson had discharged the onus of showing that it would be fair and just for a trial to be held and that such a trial would be fair. The opponent resisted the granting of an extension of time on the basis that it would suffer significant prejudice, such that a fair trial in the relevant sense, i.e. one which is fair between the parties, in the circumstances of the particular case, could not be had.

His Honour's Reasons

7 His Honour gave quite short but, in my opinion, sufficient reasons for reaching the conclusion to which he came. He referred to the opponent's submission of prejudice because of the lengthy time which had passed since the deceased's death, and continued:

"The plaintiff gave evidence before me, he did not have a good memory, he was 9 years of age at the time. There was no affidavit from the plaintiff 's mother, there was no medical evidence available at or about the time of the deceased's death as to the effect on the plaintiff. The defendant has been denied the opportunity to have a medical examination.

All of these matters are argued, it is argued it would be difficult to defend any such a case as it would be difficult to work out what problems arose as a result of the plaintiff 's father's death and what problems arose in life generally and other such matters".

8 He noted the claimant's submission "that a fair trial could be held, there is a lot of material available", and that as the claimant was only a child at the time, the fact that there was little material available as to economic loss "should not cause prejudice to the defendant".

9 After referring to various authorities, his Honour said:

"The delay is an extremely long delay between 1988 and 1999. The Court, in assessing this matter, would have to have a look at what the plaintiff's situation was prior to his father's death, what effect the death of his father had on him, what continuing effect it has had on him, what loss of earnings may flow from that, how his ingestion of cannabis may have been brought on as a result of nervous shock and how that resulted in emphysema".

10 His Honour did not consider that the issue of liability could cause any prejudice to the opponent. He continued:

"Under normal conditions the plaintiff would have given notice to the defendant within six months of a claim for nervous shock. The defendant would have had the right to investigate, would have had the right to obtain medical evidence, documents and other such matters.

There are, I should say, a number of documents available, there are documents from schools, there are various school teachers who would be available although we are not entirely sure what they would say but there are names provided. And it is pointed out that witnesses could be called who would be able to give some evidence at least of how the plaintiff was prior to this accident and after the accident".

11 His Honour referred to the plaintiff 's age at the relevant time; that matters were not then in his hands; and that it appeared that his mother had not been "overhelpful" in assisting him in prosecuting the matter. He concluded:

"However, in the end I just cannot see how this defendant could have a fair trial in this matter. It seems to me that it is of such complexity that it would be almost impossible, after all these years, for the defendant to be able to fairly defend this matter.

There are all those areas I have set out earlier, and it seems to me that this, despite the age of the plaintiff at the time, is one of those cases where there would be significant prejudice".

12 It was not submitted, either to his Honour or to us, that time to give a Notice of Claim did not commence to run until the claimant attained his majority.

A Consideration Of The Submissions

13 Mr Bozic criticised his Honour's judgment because there was no analysis of the evidence or of the claimant's submission that given such evidence as did exist, when looked at as a whole, both before and after the deceased's death, the only conclusion was that there was no significant prejudice.

14 This was a case in which far more evidence was tendered than is usually available on an application of this type. However, as has been said frequently, there is no obligation for a trial Judge to refer to all the evidence, which leads to a particular conclusion. His Honour was obviously aware of the evidence, to which he referred in general terms and, in my opinion, the only inference to draw is that he had regard to it.

15 Mr Bozic directed attention, firstly, to evidence of the claimant's schooling. He referred to documents tendered from the records of the Education Department, which showed that the absence of the claimant from school, inexplicable by reason of sickness or leave, increased after the deceased's death. However, he agreed that no school reports relating to the period prior to the deceased's death were available, and that whilst the names and addresses of two of the claimant's teachers were known to his instructing solicitor, neither had been interviewed prior to the hearing to ascertain whether she or he could provide any evidence of a change in the claimant after the deceased's death.

16 The evidence was that the claimant was at Mount Druitt Public School from August 1987 to 17 June 1988. One of his teachers, Ms Deegan, is currently working at Tibooburra for the Outback School of the Air. Another, and perhaps a more important one for present purposes, Mr S Anderson, who it was said was the claimant's teacher in 1988 both before and after the deceased's death, was shown to be alive and currently the Principal of North Ryde Public School.

17 Neither Ms Deegan nor Mr Anderson was interviewed to see whether she or he had any recollection of the claimant and, particularly in the case of Mr Anderson, whether he could recall any change in him during the period to which I have referred.

18 Mr Bozic relied upon the school attendance records. However, even when one looks at these, it appears that there were certain days before the deceased's death, as well as after it, when the claimant was absent from school without any explanation.

19 The claimant was examined by a Consultant Psychiatrist, Dr J P Maguire, on 30 March 2000, on behalf of the opponent. Dr Maguire set out a detailed history in which he referred to a number of problems, which the claimant had had resulting from the conduct of his mother, after the deceased's death, his drug abuse, his inappropriate attitude at and towards schooling, and his association with a gang of youths who, at least inferentially, engaged in anti-social behaviour.

20 Dr Maguire said the claimant gave a detailed account without exhibiting emotional distress, and there was no evidence of thought disorder, nor a description of any psychiatric phenomena. Dr Maguire also had available to him the report of a New Zealand psychiatrist, Dr S Allnutt, dated 6 October 1997.

21 Dr Maguire stated:

"If Mr Thompson's school records indicate that he was, as he and his mother claim, a well behaved child who did not truant prior to the death of his father and that his anti-social behaviour was first manifest after that event, then it would be reasonable to conclude that this behavioural disturbance was `reactive' to the death of his father.

The history available to me suggests that independent of any emotional reaction to the death of his father, Mr Thompson had to deal with a fairly dysfunctional family environment. His mother was said to be out drinking all night with his aunt for some time prior to remarrying and Mr Thompson's step-father turned out to be a violent abusive man against whom he had taken out an AVO. This situation would only have aggravated any tendency to `act out' his feelings or confusion about the death of his father.

On the other hand if the school records indicate a tendency to anti-social or conduct problems prior to the accident then it would not be surprising to find continuation and increase in his behaviour afterwards.

I am not convinced that Mr Thompson's drug taking behaviour was `caused' by the death of his father and like Dr Allnutt I cannot regard his continued heavy usage as being related to that event.

Apart from the absence of Substance Abuse there is no evidence of an ongoing anxiety state, mood disorder or psychotic illness. I therefore do not believe Mr Thompson requires any formal psychiatric or psychological treatment for `nervous shock' related to the death of his father.

If Mr Thompson has some `unresolved issues' relating to his father's death he has not sought any counselling for them over the past 12 years. He states that he is concerned about his substance abuse but yet has done nothing to seek appropriate treatment for it so that I believe it highly unlikely that he would participate in any formal bereavement counselling in the future".

22 Subsequently, Dr Maguire was asked to advise whether the opponent was prejudiced in any way by not having had any contemporaneous medical examination of the claimant "as at say, June 1991, when it seems Dr Cornelius H Greenway saw him" prior to his return to New Zealand, or in September 1997 when he was seen by Dr Allnutt.

23 Dr Maguire responded by stating:

"It is always difficult to develop a good understanding of a person's emotional reaction to a traumatic event when there is a 12 year gap between the event and the examination".

He referred to the tendencies of memories and recollections to become hazy, thus making much harder the task of forming a reliable clinical impression "when interviewing an adult who was only a child when the event occurred".

24 He continued:

"At this point in time it is very difficult to establish clearly whether the child's alleged emotional symptoms after the accident were `triggered' by the accident, or in this case the death of his father, or by the behaviour of other family members.

In other words, one could reasonably ask whether Mr Thompson's reported `separation anxiety disorder' was an emotional reaction to the `shock' of his father's death or a response to his mother's behaviour (I note she was reported to have started going out drinking late at night with her sister-in-law). It may well be that it was this behaviour that was the cause of his symptoms rather than his feelings about his father's death since he told me `I still didn't understand what death was then'.

These are the types of issues which could have been explored if Mr Thompson was examined closer to the time of his father's death.

In the absence of contemporaneous evidence I believe the Defendant has been prejudiced by not being able to conduct an examination closer to the time of the accident".

25 This evidence, combined with some other matters relating to it to which I shall refer, was, in my opinion, of high significance in the resolution of the prejudice suffered by the opponent.

26 Mr Bozic submitted that Dr Maguire had pointed to the absence of contemporaneous evidence. He submitted that there was an abundance of such evidence available, being the statements of the claimant's mother, aunt and the claimant himself, and the attendance records. However, although Dr Maguire was required for cross-examination and was subpoenaed to attend before Garling DCJ, ultimately he was not required for cross-examination. Accordingly, it was never put to Dr Maguire that a consideration of that contemporaneous material would have removed the prejudice he perceived, nor that the opponent had not been prejudiced by not being able to conduct an examination of the claimant closer to the time of the accident. In my opinion it is quite clear from his report, that the main theme of the prejudice was the inability of the opponent to have such an examination.

27 These questions, of course, have to be looked at against the background of the difficulty in establishing in a nervous shock claim, whether the plaintiff is suffering from a relevant psychiatric illness by virtue of the nervous shock, or a lesser emotion for a grief-induced situation not entitling the plaintiff to damages.

28 The claimant was not examined by Dr C H Greenway, although his mother was, and in a report of 2 June 1991, Dr Greenway said, inter alia:

"Unquestionably Mrs Thompson's own behaviour has also contributed to her son's difficulties".

29 Dr Allnutt examined the claimant on behalf of his solicitors in mid-1997. He set out a lengthy history and, under the heading "Diagnosis" said there was no evidence of significant mental illness "currently".

30 He referred to various disorders and, under the heading "Causation", said that he was "mindful of the difficulties in inferring causation". He continued:

"With the information available Mr Thompson is described as having few behavioural difficulties either in his relationship with his family or his peers. In addition he is described as having satisfactory school performance. The symptoms as described above have followed the death of his father. In the writer's opinion it is reasonable that a 9 year old boy would respond to such a stressor in the manner in which Mr Thompson did.

With regard to Mr Thompson's substance abuse it is reasonable to assume that following his father's death in the context of his behavioural problems he would have been more vulnerable to engage in substance abuse from a young age. It is unlikely however that his current substance abuse has a direct relationship to his father's death".

31 This opinion, of course, proceeded on the assumptions as to satisfactory school performance, which pointed up the importance of the claimant's calling evidence from his school teachers to seek to prove the underlying assumption.

Conclusions

32 In the result, the trial Judge was left with a situation where there was an absence of contemporaneous records; an absence of evidence from the claimant's teachers at the relevant time; and an absence of any medical evidence at or about the time within which the claim should have been made. In addition, there was the difficulty of disentangling the various problems from which he apparently suffered, including those possibly due to the loss of his father's guidance, from any from which he may have suffered as a consequence of the shock of hearing of the death of his father. Finally, although by no means the least of the evidence on which his Honour was entitled to rely, there was the uncontradicted evidence of Dr Maguire that the opponent would suffer prejudice. The fact the evidence was uncontradicted meant, of course, that it was never suggested to Dr Maguire that if he had access to the contemporaneous documents, to which Mr Bozic made reference, that would have altered the situation.

33 All of these matters, in my opinion, were sufficient to make it open to his Honour to come to the conclusion, in the proper exercise of his discretion, which he did. I should also note that Mr Guihot pointed out that there was a shifting evidentiary onus, which could well adversely affect the opponent at trial, particularly when one was looking at a pre-existing event or condition.

Orders Proposed

34 The orders I propose are:

(a) Leave to appeal refused;

(b) The claimant pay the opponent's costs of the application for leave to appeal.

******

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41042/00

DC 4945/99

SHELLER JA

HODGSON JA

ROLFE AJA

30 November 2001

Thompson v State Rail Authority of New South Wales

LIMITATION OF ACTIONS - appeal against refusal to extend time under s 52(4) of the Motor Accidents Act 1988 -extension sought for action to recover damages for nervous shock allegedly caused by incident that occurred 11 years ago - prejudice to defendant - whether trial Judge erred in concluding there would be significant prejudice to defendant and there could not be a fair trial

In July 1999 the claimant sought an extension of time pursuant to s 52(4) of the Motor Accidents Act 1988 to recommence an action to recover damages from the opponent for nervous shock allegedly caused by the claimant hearing in 1988 that his father had been killed in a train accident. At the time of the accident in 1988, the claimant was nine years old. Garling DCJ refused to grant the claimant leave to extend time. His Honour concluded (in relation to the issue of whether the claimant had suffered nervous shock) that there would be significant prejudice to the opponent and there could not be a fair trial. The claimant sought leave to appeal on the basis that that conclusion was wrong.

HELD: by Rolfe AJA (Sheller JA and Hodgson JA agreeing), refusing leave to appeal:

It was open to the trial Judge to come to the conclusion which he did. He was left with the situation where there was an absence of contemporaneous records; an absence of evidence from the claimant's teachers at the relevant time; and an absence of any medical evidence at or about the time within which the claim should have been made. In addition, there was the difficulty of disentangling the various problems from which the claimant apparently suffered, including those possibly due to the loss of his father's guidance, from any from which he may have suffered as a consequence of the shock of hearing of the death of his father. Finally there was the uncontradicted evidence of Dr Maguire that the opponent would suffer prejudice.

ORDERS

(a) Leave to appeal refused;

(b) The claimant pay the opponent's costs of the application for leave to appeal.

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LAST UPDATED: 13/12/2001