Guthrie v Spence [2009] NSWCA 369 (17 November 2009)

Last Updated: 9 May 2012

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Guthrie v Spence [2009] NSWCA 369
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40104/09; 40105/09

HEARING DATE(S):
8 September 2009

JUDGMENT DATE:
17 November 2009

PARTIES:
Justin Guthrie (Appellant in both 40104/09 & 40105/09)
Trustees of the Marist Brothers (Second Appellant in 40104/09)
Heydan David Spence (Respondent in both matters)

JUDGMENT OF:
Basten JA Campbell JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
6053/08

LOWER COURT JUDICIAL OFFICER:
Elkaim DCJ

LOWER COURT DATE OF DECISION:
27 February 2009


COUNSEL:
M Windsor SC (First Appellant)
M Fordham (Second Appellant)

B Dooley SC; K Balendra (Respondent)

SOLICITORS:
Williams Winter Solicitors, Melbourne
Colin Biggers & Paisley, Sydney (as agent for Manahan + Rowell, Melbourne)
Cater & Blumer, Griffith

CATCHWORDS:
LIMITATION OF ACTIONS – postponement of the bar – disabilities – nature of the disability required – type of affairs with respect to which the disability must relate – nature of the suspension arising from a period of disability – meaning of “cause of action” in the Limitation Act 1969 – APPEAL AND NEW TRIAL – appeal – no order made in the court below – incomplete application for leave to appeal – procedure for dealing with a purported appeal when there was no order made in the District Court below – transfer of proceedings in the District Court for the purpose of making an order – PROCEDURE – interlocutory decisions – limitation of actions – methods by which a claim that a limitation period has been suspended might be litigated – EVIDENCE – admissibility of a history recorded in a medical report – WORDS AND PHRASES – “cause of action” – “substantially” – “affairs” – “management of his or her affairs”

LEGISLATION CITED:
Civil Liability Amendment (Personal Responsibility) Act 2002
Civil Procedure Act 2005
District Court Act 1973
Evidence Act 1995
Interpretation Act 1987
Limitation Act 1969
Mental Health Act 1958
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983
Supreme Court Act 1970
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules

CATEGORY:
Principal judgment

CASES CITED:
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Banks v Goodfellow (1870) LR 5 QB 549
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502
Cranbrook School v Stanley [2002] NSWCA 290
Dainford Ltd v Lam (1985) 3 NSWLR 255
Damjanovic v Sharpe Hume & Co (Services) Pty Ltd [2001] NSWCA 130
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389
Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627
Eastman v The Queen (1997) 76 FCR 9
Fletcher v Besser [2004] NSWCA 132
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Haines v Leves (1987) 8 NSWLR 442
In the Estate of Park; Park v Park [1954] P 89
Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Kerr v Badran [2004] NSWSC 735
Kotulski v Attard [1981] 1 NSWLR 115
Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162
Moran v Amoret Installations Pty Ltd [2000] NSWCA 106
NSW Crime Commission v Murchie [2000] NSWSC 591; (2000) 49 NSWLR 465
O’Brien v O’Brien (1995) 35 NSWLR 664
Olive v Johnstone [2006] NSWCA 21
Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
Palser v Grinling [1948] AC 291
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
PY v RJS [1982] 2 NSWLR 700
Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371
R v Welsh (1996) 90 A Crim R 364
Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re GHI (a Protected Person) [2005] NSWSC 581; (2005) 221 ALR 589
Revie v Druitt [2005] NSWSC 902
Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir [2008] NSWCA 155; (2008) 71 NSWLR 593
San v Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492
Saunders v Jackson [2009] NSWCA 192
Secretary, Department of Health and Community services v JWB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218
Sheffield City Council v E [2004] EWHC 2808 (Fam); [2005] Fam 326
Shortland Electricity v O’Connor [1999] NSWCA 87
State of New South Wales v Bennie [2005] NSWCA 172
State of New South Wales v Harlum [2007] NSWCA 120
State of New South Wales v Higgins [2005] NSWCA 244
State Rail Authority of NSW v Hammond (1988) 15 NSWLR 395
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

TEXTS CITED:


DECISION:
Orders made to rectify procedural deficiencies in court below. Leave to appeal granted. Appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40104/09

CA 40105/09

DC 6053/08

BASTEN JA

CAMPBELL JA

HANDLEY AJA

17 NOVEMBER 2009

BROTHER JUSTIN GUTHRIE & ANOR v HEYDAN DAVID SPENCE
BROTHER JUSTIN GUTHRIE v HEYDAN DAVID SPENCE

Judgment

1. BASTEN JA: I agree with the orders proposed by Campbell JA and with his Honour’s reasons.

2. CAMPBELL JA:

Nature of the Proceedings

3. This is the concurrent hearing of two purported applications for leave to appeal, and appeals if leave is granted, concerning a single judgment delivered in the District Court on 27 February 2009. The practical effect of that decision was to confirm that an action that the Respondent, Mr Heydan Spence, had brought against Brother Justin Guthrie (“Mr Guthrie”) and the Trustees of the Marist Brothers (“the Trustees”) was not statute barred.

4. Mr Spence was born around the middle of 1978. He attended St Patrick’s Primary School in Griffith. He alleges that that school was operated by the Trustees.

5. Mr Guthrie was principal of that school in the period 1986 to 1989 inclusive. Mr Spence alleges that over the period 1986 to 1989, when Mr Spence was in year 3 to year 6 inclusive at the school, Mr Guthrie made repeated sexual assaults on him.

6. On 20 February 2008 Mr Spence filed a Statement of Claim in the District Court. It named Mr Guthrie and the Trustees as defendants, and claimed damages from each of them. Though the pleading of the Statement of Claim is not as clear as one would like, the better reading of it seems to be that the damages claimed from Mr Guthrie were claimed on the basis of both assault and negligence, while the damages claimed against the Trustees were claimed on the basis of negligence alone.

7. The injuries particularised in the Statement of Claim are bodily injuries incurred in the course of the assaults, and psychological injuries. The psychological injuries are alleged to be continuing.

8. Clearly Mr Spence was subject to a disability by virtue of being a minor until he turned 18, around the middle of 1996: section 11(3)(a) Limitation Act 1969. The case below proceeded on the basis that the combined effect of the limitation periods that were applicable to the various causes of action at the time they arose, and of transitional provisions concerning certain amendments to limitation periods under the Limitation Act that were made since those causes of action arose was that, if he had been subject to no disability but minority, a limitation period of six years from the date of his 18^th birthday would have been applicable. That limitation period would have expired around the middle of 2002.

9. Mr Spence contended in the court below that, in the period after his 18^th birthday, he had remained subject to a disability for a sufficient length of time for his Statement of Claim to have been filed within the limitation period. The judge below accepted that contention.

Procedural Complications of this Case

10. This matter came before both the District Court and this Court in close to total procedural disarray. The only court process that had been filed on Mr Spence’s behalf in the court below was the Statement of Claim, and a Notice of Motion filed on 13 March 2008. The Notice of Motion sought an order that “time be extended in” the bringing of the proceedings. That was not the type of decision that Mr Spence’s counsel sought orally when the Notice of Motion came on for hearing. The decision he sought from the judge was, rather, that the proceedings had (already) been brought within time, because Mr Spence had had a period of disability that occurred after he turned 18, and that that had the effect that the running of the limitation period was suspended past Mr Spence’s 18^th birthday, so that the filing of the Statement of Claim was within time. If that was right, no question of extending the limitation period arose. An extension of a limitation period under a provision such as section 60G Limitation Act is an exercise of judicial discretion. As MW Campbell AJA pointed out in State of New South Wales v Bennie [2005] NSWCA 172 at [12], when the argument is that a claim has been brought within time because the plaintiff was under a disability, “No question of discretionary extension by leave arises.”

11. No order was made in the court below for separate determination of any question about whether the limitation period had been suspended for long enough for the claim to have been brought in time. No defence had been filed, so no issues had been defined through the pleadings.

12. Early in the second day of the hearing the judge drew the attention of counsel for Mr Spence to the inadequacy of his Notice of Motion, and said, “Really you want an order that the plaintiff was under a disability”. Counsel orally sought leave “just simply to add the words that time be extended because of the plaintiff’s disability”. That was consented to, and the judge gave leave to make that amendment. The amendment was never made. In any event, for the reasons I have given, it does not raise the real issue.

13. Further, there was no judgment or order that gave effect to the substance of the conclusion that the judge reached, namely that Mr Spence had suffered disability, after attaining the age of 18, for a sufficient period for his action to have been brought within the limitation period. The only order that the judge made was an order that Mr Spence pay the defendants’ costs of the motion (presumably, the motion seeking an extension of time).

14. Mr Guthrie and the Trustees each filed, in this Court, a Summons Seeking Leave to Appeal. Each sought leave to appeal from the “whole of the decision below”. Mr Spence has not sought leave to appeal from the costs order.

15. Under section 127 District Court Act 1973, the only person with standing to appeal from the District Court to the Supreme Court is “A party who is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action ...”. Thus, the existence of a “judgment or order in an action” is an essential prerequisite for the existence of a right of appeal to the Supreme Court. When there was no relevant judgment or order in the court below, it follows that, at the time the two applications for leave to appeal were filed, each was incompetent.

16. There are several ways in which the question of whether a limitation period had been suspended by reason of the plaintiff’s disability could be litigated. If a defendant had pleaded a limitation defence, and the plaintiff in reply had pleaded suspension of the limitation period by reason of disability for a sufficient period of time, the issue so arising could be litigated, along with all other issues in the case, at the final hearing. Alternatively, if a defendant had filed a defence alleging that the proceedings were out of time, the question of whether the plaintiff had been under disability for a sufficient period of time to result in the proceedings having been brought within time could be litigated on a defendant’s motion for summary judgment. A disadvantage of proceeding by motion for summary judgment is that if it failed, and the defendant continued to wish to press the limitation question, that limitation question would be re-litigated at the final hearing. Alternatively, the court could make an order under Uniform Civil Procedure Rule 28.2 for separate determination of a question about the whether the limitation period was suspended for a sufficient period of time. The relevant provisions of the rules concerning separate determination are:

“28.1 Definition

In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

28.3 Record of decision

If any question is decided under this Part, the court must, subject to rule 28.4, either:

(a) cause the decision to be recorded, or

(b) give or make such judgment or order as the nature of the case requires.”

17. Those rules permit the making of an order for separate determination of a question even before a defence has been filed, if the parties so agree, or if the judge directs that the question be tried. (These possibilities might not exhaust the scope of “or otherwise” in UCPR 28.1.) Courts commonly choose the procedural frame of a separate determination of a question as the means for litigating, in advance of a trial, a question about whether the plaintiff has been under a disability (eg Kotulski v Attard [1981] 1 NSWLR 115 at 116; State of New South Wales v Harlum [2007] NSWCA 120 at [5]).

18. When any court is engaged in activity that amounts in substance to considering a separate question, it is most important that the question be precisely formulated, and actually answered. For the reasons given in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 358-60 [52]- [59] it is important that there be precision, at the time of framing the question, in identifying the relevant facts or the means by which facts relevant to answering the question are to be ascertained.

19. A decision of a District Court judge following the determination of a separate question can constitute a “judgment or order” for the purpose of section 127 District Court Act: Damjanovic v Sharpe Hume & Co (Services) Pty Ltd [2001] NSWCA 130 at [7]. There is no occasion to decide whether, if a District Court judge were to give an explicit answer to a separate question, but not embody it in an order, any right of appeal would exist. However, it can be said that if the answer is given in the form of an order, the potential for appealing or seeking leave to appeal concerning that answer will be clearly established on the Court’s record. For that reason it is at the least prudent for the answer to a separate question to be embodied in an order.

20. The transcript of the hearing in the court below and the judge’s reasons for judgment demonstrate that, in substance, the parties have litigated, and the judge has decided, a question about whether the limitation period was suspended for a sufficient time to enable the action to have been brought in time.

21. At least in the present case, where the answer to the separate question that has been given does not determine the entire action, the answer to the question is an interlocutory decision, and so an appeal against it can be brought only by leave of this Court: section 127(2)(a) District Court Act; Bass v Permanent Trustee Co Ltd at 359-60 [57]; Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [50], cf Damjanovic at [7].

22. When the procedural inadequacies of the proceedings were brought to the parties’ attention on the hearing of the appeal, all parties wished this Court to take such steps as were open to it to enable the substance of the applications for leave to appeal to be decided. They have agreed, after conclusion of the hearing, on a form of words that captures the substance of the question that the judge was deciding. It is clear beyond argument that the basis on which the judge decided the question was through the hearing and tender of evidence, not on the basis of either agreed or assumed facts.

23. That left outstanding whether there was any way in which the incompetence of the applications for leave to appeal could be overcome. Clearly, if a way could be found of regularising the proceedings, common sense and section 56(1) Civil Procedure Act 2005 each demanded its adoption.

24. Pursuant to section 75A(1) and (6) Supreme Court Act 1970, in any appeal to this Court from the District Court, this Court has (subject to some presently irrelevant exceptions) all the powers and duties of the District Court. Pursuant to section 75A(10), this Court is empowered to make any order or give any direction which ought to have been given or made, or which the nature of the case requires. Extensive though the powers under section 75A are, they only apply in “an appeal to the Court”, and thus cannot be used to overcome a purported application for leave to appeal being incompetent because there is no judgment or order to appeal from.

25. Section 140(1) Civil Procedure Act enables this Court, of its own motion or on application by any party to proceedings before the District Court, to order that the District Court proceedings be transferred to the Supreme Court.

26. Section 63 Civil Procedure Act provides, so far as relevant:

“Directions with respect to procedural irregularities

(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2) Such a failure:

(a) is to be treated as an irregularity, and

(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):

...

(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.”

27. The powers under section 140 and section 63 Civil Procedure Act must each be exercised in accordance with section 56 Civil Procedure Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

28. Because these are proceedings for personal injury, this Court must be satisfied that the amount which the plaintiff is likely to receive, if successful, exceeds the jurisdictional limit of the District Court or that there is “other sufficient reason” for hearing the proceedings in the Supreme Court: section 140(3)(b). Although some might think the provision envisages that the whole proceeding will be disposed of in this Court, in the event of transfer, it is not in terms so limited and no such limitation should be implied: Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 421. The matters set out above constitute sufficient reason for such an order, although it is appropriate that, when the issues sought to be raised by way of appeal have been disposed of, the matter should be remitted to the District Court.

29. In all these circumstances, the appropriate steps for this Court to take are:

(1) to transfer the District Court proceedings into this Court;

(2) in the District Court proceedings so transferred, make an order nunc pro tunc, as at the date of commencement of argument of this matter in the District Court (20 February 2009) for the separate determination of a question in the agreed form;

(3) recognise that the effect, under section 63 Civil Procedure Act, of so doing, is to regularise the hearing before the trial judge;

(4) in the transferred District Court proceedings make an order nunc pro tunc, as at the date of the judgment below (27 February 2009) answering that question in a manner consistently with his Honour’s judgment;

(5) recognise, pursuant to section 63 Civil Procedure Act, that each application for leave to appeal is made in relation to that order.

Only steps (1), (2) and (4) require the making of an order.

30. At the hearing of the application in this court, after discussing the serious procedural inadequacies of the present case with counsel, the Court indicated that it would make, in its final orders, orders of the type I have outlined. The parties then argued the application for leave to appeal on the basis that such orders would in due course be made.

Leave to Appeal

31. I would grant leave to appeal. There are questions of construction and application of the disability provisions of the Limitation Act that are sufficiently important to warrant the grant of leave to appeal. Further, if the Applicants were granted leave to appeal and succeeded, it would be the end of the litigation.

Relevant Limitation Act Provisions

32. So far as presently relevant, section 52 Limitation Act 1969 provides:

“(1) Subject to subsections (2) and (3) and subject to section 53, where:

(a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,

in that case:

(d) the running of the limitation period is suspended for the duration of the disability, and

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

(ii) the date of the person’s death,

(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.”

33. The meaning of “under a disability” in section 52 emerges from section 11(3) Limitation Act:

“For the purposes of this Act a person is under a disability:

(a) while the person is under the age of eighteen years, or

(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:

(i) any disease or any impairment of his or her physical or mental condition,

(ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958,

(iii) war or warlike operations, or

(iv) circumstances arising out of war or warlike operations.”

The Scope of the Evidence

34. The evidence in the court below consisted of an affidavit from Mr Spence, an affidavit from his mother, and various medical reports and primary medical records. Mr Spence was cross-examined, but on limited topics. Neither Mr Spence’s mother, nor any expert witness, was cross-examined. Neither Mr Guthrie nor the Trustee tendered any expert medical reports that they had commissioned. It was common ground that Mr Spence had suffered from a mental illness after turning 18; the issue was whether it had amounted to or resulted in a relevant disability, and if so whether it had lasted sufficiently long.

The Lay Evidence

35. Mr Spence’s affidavit gave a detailed account of the circumstances of the various assaults. He was not cross-examined to suggest that his account was wrong. On the hearing before us, Mr Windsor SC, counsel for Mr Guthrie, accepted that the element of section 52(1) “a person has a cause of action” was established.

36. Mr Spence’s evidence about his time at school included:

“I was getting nightmares and in lot of these nightmares I felt I was being pulled sideways into some great hole. They were also about the devil and hell. The nightmares in High School were every night and I’d regularly wake up in the middle of the night. Since 1986 I have had frequent nightmares of being trapped in the grounds of St Patrick’s School in which silvery faceless figures chase me and stick sharp objects through my body.”

37. Both Mr Spence and his mother deposed to Mr Spence having exhibited behavioural problems during his period at high school from 1990 to 1995 inclusive. During those years he saw a psychiatrist on two separate occasions, and a school counsellor from time to time. One visit to the counsellor arose from a comic strip he drew that depicted a priest’s penis being cut off. Even when the psychiatrist and the counsellor specifically asked whether he had been molested, he denied it. Nor did he disclose the abuse to his parents, until 1999.

38. During the years he was at school he regularly consumed significant amounts of alcohol and marijuana.

39. Mr Spence successfully completed his Higher School Certificate, and enrolled in a university course involving biotechnology at UTS. He moved to Sydney in 1996 to begin that course. He was 17 at the time, not turning 18 until the middle of 2002.

40. Mr Dooley SC, counsel for Mr Spence, fairly summarises some evidence:

“The respondent then exhibits behaviour that may be thought to be obsessional having regard to the medical evidence by attending the gym and undergoing significant weight loss ... in 12 months and suffered from nightmares.”

41. While at university he also continued to have flashbacks about his incidents with Mr Guthrie. During this period he describes himself as being anxious, tense and that it had been getting worse over the last four to five years. In July/August 1997 he attended Dr Fay Sin in respect of anxiety and depression and was prescribed medication.

42. In July and August 1998, he presented at the emergency department of Royal Prince Alfred Hospital (“RPAH”). His history included drinking high amounts of alcohol, smoking marijuana, and weight loss of unknown origin.

43. Dr Michael Jennings is a psychiatrist who gave a report dated 21 February 2006. He was a treating doctor, who saw Mr Spence on 13 occasions from 15 September 1998 to June 2004. Dr Jennings’ report contains repeated references to the irregularity of Mr Spence’s attendance.

44. On 29 November 1998, Mr Spence attended the emergency department of RPAH again. The clinical notes refer to an anxiety disorder.

45. Mr Spence said:

“... in early 1999 I felt as if I had improved. I wasn’t getting as many nightmares. I was not anxious nor feeling depressed and seemed to be able to cope better generally with life. [Dr Jennings and I] both agreed that if I needed to see him I could go and see him.”

46. In the second semester of 1999:

“... all of a sudden it was like I was hit by a truck. When I was awake, I couldn’t get the images, the sensations, pain and feelings out of my mind about the First Defendant and what he did to me. I had always seemed to be able to put the issue to the back of my mind however, I just couldn’t get it out of my head at the time. I can recall when this happened that I spent the next week crying and just couldn’t leave my flat. I just shut myself off from the entire world and did not see a doctor or do anything. I would wait until dark to go and buy some cigarettes and beer every night.”

47. On 13 September 1999, Dr Leo Davies, a Neurologist, referred Mr Spence to another doctor, Dr Harry Haber. His referring letter notes an earlier hospital visit Mr Spence had in January 1999 at which time he “was smoking 8-9 joints a day, and drinking 60-80 alcoholic drinks a week.” Dr Davies said that in September 1999 he “presented with a series of disjointed and apparently unrelated complaints. He flips from idea to idea very quickly.” The letter commented on “his odd affect and flight of ideas ...”.

48. Mr Spence requested a leave of absence from the university, and was granted it. This happened notwithstanding that he was nearing the end of his degree course. He returned to his parents’ home to live. He says:

“When I got home I couldn’t leave the room in my parent’s house in Wyangan Avenue. I also commenced to drink heavily and was smoking marijuana.”

49. It was on Boxing Day 1999 that he first told his parents about the abuse. The response of (in particular) his mother was unsupportive and unbelieving, because a priest did not do such things.

50. His evidence is that in early 2000 he told a Griffith doctor (who he was seeing about a problem he had with his knee) about the abuse, but “he did not seem interested”.

51. He travelled back to Sydney, and for the first time told Dr Jennings about the abuse on 1 June 2000. Dr Jennings’ report confirms:

“In one of these visits on the 1^st June, 2000 he came to a consultation after a gap of some six months. He said that since some time in the previous year he had started getting memories of being molested by his primary school principal.”

52. By September 2000, relations with his parents were so bad that they arranged for uniformed police to serve an interim Apprehended Violence Order on him. He left the house, and the AVO was not proceeded with at court. After a while in Melbourne, he returned to Sydney, and arranged re-enrolment at the university for 2001. He completed his degree in 2001.

53. While at UTS, he saw a counsellor employed by the Student Union, and told her about the abuse. She suggested he could go to the Sexual Assault Counselling Service at RPAH if he needed to. He did not do so at the time.

54. For 2002 he was substantially unemployed (apart from a week’s work in August 2002), and surviving on a New Start Allowance. During 2002 he formed a relationship with a girl, and told her about the abuse. She suggested he “do something about it, go to the police”. Remembering the advice from the UTS counsellor, he went to the Sexual Assault Service at RPAH in early January 2003.

55. The clinical notes of the Sexual Assault Service at RPAH record an attendance by Mr Spence on 3 January 2003. The “Presenting Problem/s” part of the form gives a précis of the assault allegations. The “Help Requested” part of the form records “wishing to take legal action against ‘BROTHER JUSTIN’.”

56. In cross-examination he said that the type of action he had in mind was criminal. That answer was not challenged, and the judge accepted it.

57. The RPAH clinical notes relating to 16 January 2003 record a meeting Mr Spence had with Ms Anne Crowe, a social worker, in which he elaborated on the sexual assaults, said that his “emotional life has been adversely affected”, and that his family “have since ostracised him”. The notes continue:

“He has had a couple of unsuccessful heterosexual relationships but now feels he is in a good relationship with a woman. Heydan remains very angry about the abuse and now wishes to take legal action against Br Justin. Heydan says he has 2 goals in life; one is to become a research scientist & the other is to see Br Justin in gaol.”

58. Ms Crowe contacted someone from the organisation Broken Rites, and recorded:

“It seems that Heydan needs to find out Brother Justin’s name & whereabouts. He is going to try to do this before his next appointment.”

59. Notes of Ms Crowe of 30 January 2003 record:

“... he has managed to track down the whereabouts of Brother Justin ... and now wishes to proceed to making a police statement. We reviewed the options again & Heydan is clear that this is what he wants to do.”

60. Those notes record the full name, address and telephone number of Mr Guthrie.

61. Ms Crowe’s notes of 31 January 2003 show that she went with Mr Spence to meet an officer of the Child Protection Investigation Unit of the police. That officer:

“... asked Heydan to give an outline of the events which Heydan did & then spoke to Heydan about the processes and proceedings surrounding the investigation & possible indictment. [The officer] asked Heydan to go home & consider the events in detail and write them down before he makes his statement to police.”

62. Mr Spence made a typed police statement that gives his account of the assaults in some detail. The statement bears a typed date 4 March 2003, but a witness has handwritten a date 2/6/03 on it. Mr Spence’s affidavit evidence was that he signed it after 4 March 2003.

63. In 2003 he enrolled in another course at UTS. He deposes that it was in:

“... early February 2003 that I had the first month long episode of involuntary facial and head tremors/movements. These damaged my self esteem and ability to participate fully in classes.”

64. In July 2003 he saw a Dr Rothonis for depression, and gave him a history of the abuse. Dr Rothonis treated him for depression, using antidepressants. Dr Rothonis changed the drugs to a multi-drug regime towards the end of 2003. Mr Spence took that medication for the next six months, but it caused him real difficulties in staying awake during the day. He decided to stop taking the medication in April 2004.

65. Dr Rothonis reported that he saw Mr Spence “on quite a number of occasions” over the period 24 June 2003 to 20 December 2004 for treatment of depression.

66. In about September 2003, the police decided not to charge Mr Guthrie. Mr Spence “started to fall in a bit of a hole shortly before this”. In mid-September he broke up with his girlfriend. “I found it hard to sleep, still having nightmares and flashbacks about the First Defendant. I found it hard to socialise with people generally.”

67. He stayed in Sydney during 2004, but at the end of 2004 interrupted his studies, and returned to Griffith to live. His parents permitted him to live on their farm in the shearer’s quarters. His evidence was:

“At the end of 2004 and 2005 my nightmares were getting worse and were coming back nightly. I was also anxious and depressed having difficulties in sleeping. I had feelings of just being helpless and kept on having flashbacks of what the First Defendant had done to me. Sometimes this would happen many times during the day. It seemed to be getting worse and worse coming up to May of 2005 and I went and saw Stephanie Irvin, Sexual Assault Counsellor at the Griffith Community Health Centre. She seemed quite helpful to me.”

68. Ms Irvin advised him he should get legal advice as to possible compensation rights. On 19 August 2005 he saw his present solicitor, and was advised of his rights and possible compensation entitlements arising from the assaults.

69. The evidence that Mr Spence’s mother gave included:

“In 1996 Heydan went to University in Sydney, and I did not see him too often while he was based there. Throughout university Heydan would call me, always at night, and confide in me the problems he was facing. He would call me and tell me that he was having trouble coping with study and life in general. He would often say words to the effect of: “My mind is all over the place, it’s racing. I feel so anxious ...

...

I have had limited contact with Heydan since he left my house in 2000. He resumed living on our property at Rothene with our consent in January 2005, albeit in a separate house on the property. We WOULD communicate via written notes left under the doors, which seems to be how Heydan wants it.”

70. After her initial disbelief, she has come to accept that he had been assaulted.

71. Clinical notes from the Griffith Community Health Service dated 12 May 2005, relating to Mr Spence’s assault, records: “Has been in contact with Victims Comp – awaiting package.” His answer in cross-examination is to the effect that the package was information about when and how one could make a claim. Seeking that sort of information does not necessarily show an intention to actually make a claim.

72. Another note of Ms Irvin, apparently dated 4 April 2006, records that she “has difficulty in encouraging Heydan to remain focused on activities – tends to avoid discussion on therapeutic strategies”.

73. On 16 February 2006, Mr Spence completed a form to make an application for victims compensation. In that form his explanation for a delay in reporting the matter to the police was “felt unable to say anything for years and my mother at the time did work at the school + I was threatened by the culprit”. In response to a specific question in the form he stated he did not intend to make a civil claim in regard to the matter. He made no claim for a psychological or psychiatric disorder. A stamp on the form shows that it was not received by the Victims Services in the NSW Attorney-General’s Department until 12 May 2006.

74. While Mr Spence also gave evidence of the state of his life after August 2005, it is not of any great relevance to the present application.

The Expert Evidence

75. Section 60 Evidence Act 1995 has the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded: R v Welsh (1996) 90 A Crim R 364; Eastman v The Queen (1997) 76 FCR 9 at 78-9 per von Doussa, O’Loughlin and Cooper JJ; Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371 at 377-8 per Branson J, 382 per Finkelstein J (with both of whom Emmett J agreed on this point); Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 at 603-4 [39] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ; Moran v Amoret Installations Pty Ltd [2000] NSWCA 106 at [7] per Heydon JA (with whom Meagher JA agreed – though para [7] might record only a concession by counsel with no dissent from the judge), [23] per Giles JA (who actually decided the effect of section 60 on medical histories); Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 at [70] per Heydon JA (with whom Priestley and Sheller JJA agreed). As several judges have remarked in the cases just cited, this effect of section 60 makes it important that a limitation under section 136 Evidence Act on the use to which such hearsay material can be put be sought if the facts recorded in the histories are controversial. However, no such limitation was sought, or imposed, in the present case on the histories in any of the medical reports tendered.

76. Dr Jennings’ report says:

“For a while he was taking Aropax, an SSRI antidepressant which can help anxiety and irritability as well as depression. When last seen he had stopped the Aropax, but said that he was less tense and anxious than he used to be, that he had made progress in his studies and had finished his degree and appeared to have improved somewhat overall.

... The impression that he gave me the last time that I saw him was that there had been some improvement in his mental state and level of functioning over time since the first visit.”

77. In Dr Jennings’ opinion, Mr Spence was a person with a personality disorder. Dr Jennings said:

“His pattern of presenting, his intermittent and irregular attendance, his difficulty in containing his emotions and the fact that he only disclosed a history of abuse a long time after being first seen is a common picture in patients who have been abused. In such people it appears likely that the experience of abuse played a significant causative role in their later patterns of behaviour. Mr Spence’s history and presentation is consistent with this.”

78. Dr Rothonis (Mr Spence’s treating doctor in the June 2003 to December 2004 period) reported:

“He had suffered from the effects of chronic depression which interfered significantly with his ability to focus and study at school for exams and research projects. It was not a case of his intellectual ability being inadequate.

During the consultations with Hayden Spence it was clear that his depression stemmed from his history of abuse at school by his former headmaster. This situation had continued to cause him a lot of frustration and anger which continued to impede his progress through life and his efforts to put this behind him.”

79. Dr Peter Sternhell, a psychiatrist, has given a report dated 6 November 2006. He records that Mr Spence “has features of complex post traumatic stress disorder having survived several years of sexual abuse by the Marist Brothers principal of his Catholic primary school.” He also records:

“The Police did take statements but have not proceeded to prosecution as other men who allegedly experienced abuse by this man have been unwilling to step forward and give evidence. Over the last year he has seen Stephanie Irvin who has assisted him greatly in learning how to cope with his feelings and experiences of sudden overwhelming panic.

Heydan started to notice a resurgence of anxiety and flashbacks to being raped when he was having sex with his then girlfriend several years ago. This led to the relationship breaking up.”

80. The results of his mental state examination included:

“He does experience flashbacks at times of the assaults. This occurs in situations that are vaguely linked to the circumstances.”

81. Mr John Flockton, a Consulting and Forensic Psychologist, provided a report dated 18 December 2006. As well as taking a detailed history, he administered various psychological tests to Mr Spence. His report results included:

“The configuration of profile results is consistent with significant disturbance to Mr Spence’s core sense of self identity, his ability to establish and sustain relationships of genuine intimacy, and to regulate internal states of distress. ...

There is however clear indication that Mr Spence continues to experience significant distress arising directly from the alleged sexual assault over a three year period by a school principal between 1986 and 1989.”

82. In the context of dealing with sexual relations, he said:

“This is clear evidence of unconscious defensive dissociation which is typically experienced on exposure to extreme physical or psychological threat. It is also a primary diagnostic indicator for a trauma induced disorder.”

83. He made a diagnosis of post traumatic stress disorder. Annexed to his report was a list of the criteria of post traumatic stress disorder as contained in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. He indicated which of those diagnostic criteria Mr Spence satisfied, and which he did not. One of the necessary criteria was that “The traumatic event is persistently re-experienced in one (or more) of the following ways”. Mr Flockton reported that Mr Spence satisfied all of them:

“(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. ...

(2) recurrent distressing dreams of the event. ...

(3) Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). ...

(4) Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;

(5) Physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.” (The excised portions concern how the symptoms present in children.)

84. He also reported Mr Spence as satisfying the following criterion:

“Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) Efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(2) Efforts to avoid activities, places, or people that arouse recollections of the trauma ...;”

85. Mr Spence also satisfied the criterion:

“The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

86. Associate Professor Carolyn Quadrio, a Consultant Psychiatrist, provided a medico-legal report dated 20 April 2008. Her report on his current mental status includes:

“Mr Spence still gets very shaky and this is worse if he takes sleeping tablets. His jaw trembles around people, he begins to quiver. His left hand shakes and he will spill coffee – and yet he can work with a microscope quite effectively. The shakiness is related to being around people; he is very self conscious – although that is not so bad now that his weight is more normal. He gets shaky and tremulous when he looks at people. ...

Mr Spence can’t cope with conflict, it makes him very shaky. If somebody gets angry around him he can’t cope with it. ...

Memories of the abuse persist and Mr Spence is often overwhelmed by feelings and memories. He doesn’t want to go on avoiding life and people. Flashbacks can come as a response to triggers or out of the blue. When he sees a church he thinks of petrol, ‘especially a catholic church, especially Marists, it all makes me sick’. He feels very bitter about this and has no interest in religion. (Mr Spence became agitated and had an angry outburst.)”

87. In answering the question “Whether Mr Spence suffers from an impairment of mental condition” Professor Quadrio’s report included:

“... He presents now with Chronic Post Traumatic Stress Disorder and Personality Disorder of the post traumatic (Cluster B) type.

...

Mr Spence continues to experience difficulty sleeping and nightmares and dissociative phenomena – out of body experiences and flashbacks – and very marked psychological and physiological arousal to stimuli that remind him of the abuse, such as seeing a church or a priest.”

88. In response to a question “If so, how long has he suffered from this” Professor Quadrio’s opinion included:

“... The combination of pre-existing vulnerability and family disturbance and then the sexual abuse had a major impact on him and already in primary school he became seriously symptomatic with Post Traumatic Stress Disorder (PTSD). Thus he suffered from insomnia, nightmares, reliving experiences, hypervigilance and dissociative phenomena such as out of body experiences. As a result of this symptomatic disturbance he was abusing alcohol and cannabis from age 13. It is very common that abused children turn early to substance abuse as a way of self medicating symptoms of PTSD.

During Year 11 and 12, Mr Spence had a period when he functioned somewhat better. But then adjustment to university was extremely difficult. ...”

89. I should quote the whole of the next question and answer:

4. Whether he has been suffering from a mental disability that has ‘substantially impeded’ him or rendered him incapable of ‘the management of his affairs as far as they relate to the assaults’.

Mr Spence became symptomatic with Chronic Post Traumatic Stress Disorder (PTSD) from primary school; he suffered from insomnia, nightmares, reliving experiences, hypervigilance and dissociative phenomena such as out of body experiences. This led to alcohol and cannabis abuse from age 13, which compounded his problems. The persistence of these symptoms over the crucial developmental years of personality development resulted further in disorganisation of personality development so that ultimately it was manifest as Personality Disorder. The combination of PTSD and Personality Disorder qualifies as mental disability that ‘substantially impeded’ Mr Spence in the terms of the above definition.”

90. As to the time during which he has been “substantially impeded” in or “incapable of” the management of his affairs due to the disability, Professor Quadrio’s view was:

“... He has been seriously symptomatic throughout his adult life and continues at present, in spite of currently holding down full time employment.”

91. After receiving that report, Mr Spence’s solicitors wrote again to Professor Quadrio asking:

“Could you please address the question of whether he has been suffering from a mental disability that has substantially impeded him or rendered incapable of the management of his affairs as far as they relate to pursuing a damages claim in relation to the assaults.”

92. That led Professor Quadrio to prepare a supplementary report dated 15 July 2008. While it expressed some psychiatric opinions, they were not an answer to the specific question that had been asked.

93. Another report in evidence is from Dr Roger Blake, a Consultant Forensic Psychologist. He has had considerable experience concerning male sexual abuse victims, including during eight years when he was Senior Forensic Psychologist at the Junee Correctional Centre. He reported on Mr Spence showing the following symptoms.

“● Intrusive thoughts or obsessive ruminations about the repeated assaults.

● Extreme anger and deep emotional pain when discussing the way in which he was assaulted.

● Loss of pleasure in activities that he might otherwise enjoy.

● Avoidance of any form of stimuli or life events which may remind him of the assault.

● Hypervigilance and some reporting of flashbacks.”

94. He also made a diagnosis of post traumatic stress disorder in accordance with DSM-IV, compounded by “... an Axis 11 symptomology, as per DSM-IV, which is most likely Borderline Personality Disorder with accompanying Cluster B type ...”.

95. Ms Irvin provided a report on 30 January 2006 for the purpose of a victims’ compensation claim that Mr Spence had made. She said “it is evident in the counselling sessions that Heydan has been delayed in his emotional development”. Her conclusion was:

“... the impact of the sexual assaults on Heydan has been prolonged, intense and extremely disruptive. This has had a significant impact on Heydan’s personal and emotional well being, resulting in a loss of self-confidence and sense of self worth. The symptoms described have intensified over the years, particularly when Heydan has found the strength to report the assaults, but is now aware that to bring for the justice [may] not be available to him. [sic]

It is my professional opinion that the impact of the sexual assaults on Heydan has been severe and enduring.”

General Matters Relevant to Capacity

96. The Applicants placed reliance on some evidence about Mr Spence’s capacity in dealing with practical affairs, and argued that it supported a conclusion that he had not had a disability of the relevant type after he turned 18.

97. Mr Spence had had some contact with solicitors, and experience of litigation, before he saw his present solicitor about the assaults. When he was in year 11 at high school he sustained an injury to his knee while on a school excursion, and required surgery for it. He made a claim for damages against an entity that he identified in cross-examination as “the Department of Education”. Griffith solicitors called Oliffe and McRae acted for him in that litigation. Determination of that claim required him to go to court and give evidence, at some time after his 18^th birthday. He received some financial compensation as a result of that case.

98. At some time between 2002 and April 2005 he had contact with Oliffe and McRae about seeking advice on intellectual property law, concerning an intellectual property disclosure agreement with the University of Western Sydney that he had been asked to sign, but that matter did not advance.

99. In 2005 he was injured while working for McGuigan Simeon, and made a workers’ compensation claim, using the services of the same solicitors who act for him in these proceedings. However, that claim was made after he consulted those solicitors concerning the assaults.

100. Cross-examination of Mr Spence established that when he came to Sydney in 1996 he lived in some student accommodation, and was responsible for getting his own meals, being responsible for the cleanliness and hygiene of his accommodation, getting himself to lectures and tutorials, and budgeting to ensure that the Austudy allowance he was receiving each fortnight lasted for the fortnight.

101. His employment history has been sporadic. He worked for about three months as a casual telemarketer in 1998. He had another period as a telemarketer in about 2000. He had one week’s work at Royal Prince Alfred Hospital in August 2002. He had casual employment as a co-ordinator in a disability service from September 2002 to January 2003. He worked as a laboratory assistant at McGuigan Simeon Wines in Griffith from about June of 2005 to August 2005, when his employment was terminated due to him not being able to get on with fellow workmates. He obtained employment again in January of 2006 in Griffith as a laboratory assistant, but again was terminated. He has been in full time employment since 15 November 2007, in a responsible position involving exercise of knowledge and skills derived in his university course.

The Judgment Below

102. The judge (at [5]) described Mr Spence’s affidavit as “an extremely comprehensive history giving stark detail of the events that are the base of his quest for damages.” He said (at [8]) that he thought it was “most significant” that Professor Quadrio was not required for cross-examination, nor was any report tendered to challenge her opinion.

103. The judge made specific reference to his observation of Mr Spence in the witness box, at [10]-[12]:

“... The cross examination by learned senior counsel was a model of polite yet probing interrogation. Despite the respect with which each question was conveyed the plaintiff responded to the questions with an air of aggression although most answers consisted of a very short ‘yes’ or ‘no’ and took a particularly technical approach to the detail being sought. A short examination of the transcript will, I am sure, explain my observation. The interrogator, despite the manner in which his questions were answered accepted the plaintiff’s approach and patiently sought the answers to the questions that he asked.

The comments I have just made above should not be seen as reflecting in any way upon the credit of the plaintiff. He certainly was a person very difficult to cross examine and I have no doubt that he intended that this be the case. I cannot, of course, know the intention behind his approach but I suspect it derives from one of the following:–

(a) He had been told to answer questions as shortly as possible. This is not a condemnation, if it be the case, of his legal advisers for I have no doubt that he was instructed, if at all, to ensure the honesty of his responses.

(b) The plaintiff’s mental status is such that he viewed with the utmost suspicion, and perhaps hostility, any questions emanating from representatives of the two defendants who he believes have been responsible for his suffering. The plaintiff would be excused from appreciating that counsel for the defendant were doing no more than representing their clients and held no personal animosity towards the plaintiff.

I tend to think that the second of the above two reasons was probably the motivation for the plaintiff’s demeanour in the witness box and I gain support for this view from the manner in which he answered questions that I asked him at the conclusion of his cross examination. His attitude when answering my questions was entirely different to that adopted ‘against’ counsel for the defendants.”

104. In the course of discussing Professor Quadrio’s report the judge said (at [16]) that she:

“... refers to the interference with the plaintiff’s academic performance which continued through his University career. This aspect is important because the plaintiff’s achievements need to be seen in the light of the struggle that has been necessary to achieve them. It would be grossly unfair to him to suggest that his achievements of themselves indicate a normality in the conduct of his life. These achievements are set against a background of intense frustration, drug use and massive alcohol consumption.”

105. The judge engaged in the exercise put forward by Slattery J in Kotulski v Attard of using as an aid to deciding whether there was the sort of impairment necessary for disability to exist, how a reasonable person without any impairment would conduct himself in the management of his affairs. The trial judge said, at [28]:

“... I think I can infer that were the plaintiff not suffering from a disability (of the type required under the Act) he would have sought compensation much earlier. True it is, and this is a strong point in the defendants’ case, that he sought justice through the Police and the Victims Compensation Tribunal. The fact is, however, that he did not seek justice through the Common Law until much later and I think there is, as submitted by the plaintiff, a recognisable pattern of his searching for justice in first doing so through the Police, then the Victims Compensation Tribunal and finally at Common Law. I think I can draw an inference that had he had the mental capacity to seek justice through the Common Law he would have done so at a much earlier stage. I also think it reasonable that a person slowly coming to terms with what he has been subjected to would first of all seek redress through the Criminal Law before perhaps being able to deal with the matter on a Common Law basis. Although this point was not the subject of a submission by the plaintiff, I think there may be a distinction between a person acting through the Police or through an independent body as in the Victims Compensation Tribunal, and in dealing with the perpetrator of acts against him on an apparently personal level. This is illustrated by the manner in which the different proceedings would be progressed. An action brought by the Police would be one brought in the name of the State. It would not involve a personal, in effect, one against one, as happens in the Common Law where plaintiff sues defendant. To a lesser degree the same is true of the Victims Compensation Tribunal where an application is made to the Tribunal which then effectively controls the matter. The nature of civil proceedings is that person A sues person B and the conflict is between them. In my view a reasonable person would view the conflict in a Common Law case as being himself against the defendant, a concept which would be more difficult to deal with.”

106. The judge noted the evidence about Mr Spence having brought other legal proceedings, but, in reliance on State of NSW v Harlum at [67] did not regard that as decisive.

107. In my view, a critical paragraph in his Honour’s reasoning is (at [31]):

“The plaintiff relies heavily on what is said to be a classic product of PTSD, namely the avoidance by the sufferer of matters concerning the events giving rise to the condition. In support of this contention I was taken by the plaintiff to the report of Dr Blake in Exhibit A at page 3, the Annexure to Dr Flockton’s report on page 12C and to the observations of A/P Quadrio in the last paragraph of page 10 of her report. I think the issue of avoidance has loomed large in this case and that there is an identifiable pattern of the plaintiff developing an ability to deal with his past. In my view this avoidance is consistent with the gradual progress, starting with Police action, which led to the filing of the Statement of Claim.”

108. He goes on to say (at [32]), in a passage the Applicants criticise:

“I also agree with the plaintiff’s counsel that although it would have been of assistance for A/P Quadrio to have answered the question put to her on 7 May 2008, her report nevertheless does go far enough to establish the disability. Her report in a sense goes even further in that she brings the disability up to the present (or at least the time she was writing her report).”

109. He ultimately concluded (at [34]) that:

“... the plaintiff was under a disability when he turned 18 and that this disability continued until he first consulted his current solicitor Mr Geddes on 19 August 2005 ... I will set this date as the arbitrary date for the cessation for present purposes of his disability.”

How Limitation Periods and Disability Periods Interrelate in this Case

110. Before turning to the specific errors that the Applicants contend can be found in the judge’s reasons, it is convenient to give some general consideration to how section 52 Limitation Act operates. The particular parts of section 11(3) that Mr Spence contended he satisfied as showing that he had been subject to a disability after turning 18 was that he had been:

“... for a continuous period of twenty-eight days or upwards, ... substantially impeded in the management of his ... affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of ... [an] impairment of his ... mental condition”.

111. Section 11(3)(b) gives rise to the possibility that someone might be under a disability for one continuous period of 28 days or upwards, cease to be under that disability, then come to be under a disability for another one or more continuous periods of 28 days or upwards. Mr Spence did not seek to make such a case – his contention was that he had been under a disability continually from the time of his 18^th birthday until a date sufficient for his action to have been brought in time.

Effect of Disability on Limitation Periods Generally

112. Whether the limitation period for an action in tort arises under section 14 or section 18A Limitation Act, the limitation period takes the form of stating that the cause of action:

“... is not maintainable if brought after the expiration of a limitation period of [X] years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

113. The effect of a limitation period being suspended under section 52 is that time does not run during the period of the suspension. Thus, if a plaintiff sustains an injury as a result of a tort committed while the plaintiff is a child, and is subject to no disability after turning 18, the limitation period is suspended from the instant the cause of action first accrues. The suspension of the limitation period ceases when the child turns 18, and thereafter the child has the X years prescribed by section 14 or 18A, as the case may be, in which to bring the action. That consequence results from the combined operation of the provision creating the limitation period with section 52(1)(a)-(d) inclusive. This construction is consistent with the obiter explanation given by Bryson JA (with whom Mason P and Giles JA agreed) in Fletcher v Besser [2004] NSWCA 132 at [4].

114. If a person sustains a tortious injury while a child, and at the time of attaining 18 years is under a disability by reason of one or more of the matters in section 11(3)(b), that person is under a disability for the entire time from when the cause of action accrues until the disability arising under section 11(3)(b) ends. The limitation period for the tort will be suspended until the person ceases to be under that disability arising under section 11(3)(b). Thus, the person will have the full X years of the limitation period from the time he or she ceases to be under that disability in which to bring the action. That consequence also arises from the combined operation of the substantive provision creating the limitation period, and section 52(1)(a)-(d) inclusive.

115. Section 52(1)(e) has no work to do in either of the situations I have just been considering. Para (e) has a precondition for its operation, namely “if, but for this paragraph”, the limitation period would expire before a certain time. When one is considering when “but for this paragraph” a limitation period would expire, one takes into account the effect that section 52(1)(d) has on the running of the limitation period. In the case where a child suffers a tort, reaches 18, and thereafter is under no disability, but for paragraph (e) of section 52(1) the limitation period would not expire before the lapse of three years after the date on which the person last ceases to be under a disability (ie the 18^th birthday). That is because, even for a three year limitation period under section 18A, that limitation period expires exactly three years after the 18^th birthday.

116. Nor does paragraph (e) of section 52(1) have any work to do in the situation where a child is the victim of a tort, reaches 18, and is under a period of disability continually from the time of reaching 18 until some later date. That is because, but for paragraph (e) of section 52(1), the limitation period would expire, even in the case of a section 18A limitation period, three years after the date on which the person last (before the expiration of the limitation period) ceases to be under a disability.

117. There are complications in applying para (e) when the limitation period is affected by both an interrupted period of disability, and the death of the person who had the cause of action. The complications arise from the fact that the definition of being under a disability in section 11(3) presupposes that the person to whom it applies is alive, in consequence of which a person is no longer under a disability (within section 11(3)) when he or she dies. However, as those complications are not relevant to the facts of this case I will not explore them.

118. The only circumstance in which section 52(1)(e) has work to do, concerning a child who sustains a tort and remains alive, is where the child turns 18, and thereafter has some periods of being subject to a disability, and some periods of not being subject to a disability. An example provides the best explanation. In it I will use “B20” to refer to a person’s 20^th birthday, and so on. Consider a situation where a child sustains a tort to which a three year limitation period applies, turns 18, then thereafter has a continual two year period of disability (to B20), then a one year lack of disability (to B21), then a further one year of disability (to B22), with no disability thereafter. In that situation, one year of the three year limitation period would run during the one year period of lack of disability, and thus, but for paragraph (e) of section 52(1) the limitation period would expire two years after the date on which the person last ceased to be under a disability (ie, expire at B24). In that situation, paragraph (e) of section 52(1) has the effect of extending the limitation period to three years after the date when the person last ceases to be under a disability, ie, to B25.

119. That construction of section 52(1)(e) is consistent with the construction adopted by Sheller JA (with whom Beazley and Fitzgerald JJA agreed) in Shortland Electricity v O’Connor [1999] NSWCA 87 at [8]- [13], and with that adopted by Handley JA (with whom MW Campbell AJA and Adams J agreed) in State of New South Wales v Higgins [2005] NSWCA 244 at [19].

Application to the Present Case

120. Because Mr Spence does not contend that he has been subject to more than one period of disability after attaining 18, and is still alive, section 52(1)(e) has no work to do in the present case.

121. The limitation period for each of the causes of action in assault and negligence alleged in the present case is six years. A cause of action in assault is complete at the time the assault happens. A cause of action in negligence is complete on the first occasion the plaintiff suffers non-trivial damage as a consequence of the negligence. Insofar as negligence is alleged against Mr Guthrie, it either culminated in or was the same as the assault, and thus damage was suffered, and the tort was complete, when the assault occurred. Insofar as negligence is alleged against the Trustees in, broadly, not being careful enough about how the school was run, the damage suffered was the assault, so each cause of action sued on in the present case was complete no later than the time the last of the alleged assaults occurred, ie in 1989.

122. At the time each cause of action was complete, the limitation period applicable to it, pursuant to section 14 Limitation Act, was six years. The limitation period of three years for actions for damages for personal injury, introduced by the 1990 legislation that incorporated section 18A into the Act, was expressly stated by section 18A(1)(b) not to apply to a cause of action that accrued before 1 September 1990. A different limitation regime again was introduced by Division 6 of the Limitation Act, in the 2002 amendments. However section 50A(2) makes clear that that regime applies only to acts or omissions that occurred after the introduction of the 2002 legislation. Thus, the applicable limitation period for each tort alleged remains six years.

123. Bearing in mind that the Statement of Claim was filed on 20 February 2008, it follows from the analysis so far that the effect of section 52(1)(a)-(d) inclusive is that Mr Spence’s action would have been brought in time if he had remained under a disability from the time of attaining his 18^th birthday until 20 February 2002.

124. In that situation, the only relevance of events that occurred after 20 February 2002 would be to the extent that they could be used as retrospectant evidence to support or undermine a case that he had not been under a disability prior to 20 February 2002.

Construction of Section 11(3)(b)

125. In Kotulski v Attard, Slattery J said at 117-18:

“Section 11(3)(b) is concerned with two classes of person:

‘One who is incapable’ (which conveys the concept of total inability) and the other ‘substantially impeded in the management of his affairs in relation to the cause of action ... by reason of disease or impairment or physical or mental condition.’

According to the Shorter Oxford Dictionary to ‘impede’ means to obstruct in progress or action; to hinder or to stand in the way of. ‘Substantially’, in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. ‘Mental condition’ which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.

It seems to me that the expression ‘mental condition’ is meant to cover the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words ‘unsound mind’, which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said:

‘So here it seems to me in this statute a person is 'of unsound mind' when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.’

I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action.”

126. Kotulski was a widow’s claim for damages arising from the circumstances of her husband’s death in June 1969 when struck by a motor vehicle. Her statement of claim was filed 1 month and 11 days after the date on which the limitation period would have expired had she not been under a disability. A solicitor acted on her behalf at a coroner’s inquest in October 1969. In November 1969, February 1970 and July 1970, her solicitor tried to talk to her about the possibility of civil proceedings. He gave evidence that she cried, was agitated, and appeared not to be concentrating or appreciating what he was saying, to such an extent that he felt he could not obtain proper instructions from her. He suggested to her son that she should see a psychiatrist. A psychiatrist diagnosed her as suffering from a psychological condition precipitated by her husband’s death.

127. The widow had been able to give some instructions during 1969 concerning the coronial inquest, a worker’s compensation claim, her husband’s deceased estate, and the seeking of counsel’s advice. Slattery J found that she was in a depressive state from April 1970 until at least February 1971, which impaired her volition and judgment. He said, at 122:

“As I have previously mentioned, it is relevant to consider how a reasonable person would conduct herself in the management of her affairs, including a cause of action for compensation. The evidence has satisfied me that by reason of her mental state during this period she was substantially impaired in the management of her affairs and especially in relation to the cause of action sued upon.”

128. Thus, in Kotulski the time period in which the widow demonstrated competence in dealing with the legal sequelae of her husband’s death was different to the time period in which Slattery J found she had been disabled.

129. This Court has approved the analysis of section 11(3)(b) given in Kotulski: State of NSW v Bennie at [13]-[14]; Olive v Johnstone [2006] NSWCA 21 at [61]; State of NSW v Harlum at [62], [65], cf at [138]-[139]; and Saunders v Jackson [2009] NSWCA 192 at [38].

130. While I do not disagree with any part of the passages I have set out from Kotulski, more can be said about the construction of section 11(3)(b), that bears upon the present case.

131. I shall start by considering the meaning of some of the various elements of section 11(3)(b), and then analyse the syntactical structure of the provision. The reader will find that following through one method of analysis covers subject matter that is also considered in the other method of analysis. It should be no surprise that this happens in the course of statutory construction.

“Cause of Action”

132. Section 11(3)(b) depends on a person being incapable of or substantially impeded in the management of his or her affairs “in relation to the cause of action”. But what is “the cause of action”?

133. In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 610, Brennan J pointed out that there “is an imprecision in the meaning of the term cause of action” and that it “is sometimes used to mean the facts which support a right to judgment ... sometimes to mean a right which has been infringed ... and sometimes to mean the substance of an action as distinct from its form”. Deane, Toohey and Gaudron JJ referred to those remarks without disapproval in Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 508.

134. Notwithstanding that the expression “cause of action” has a central role to play in the Limitation Act, the Act does not define it. Apart from its appearance in section 11(3)(b), it appears in section 6(1)(d), in the definitions of “breach of duty” and “successor” in section 11(1), in section 11(2)(b) and (d) and in section 11(5). Of the substantive provisions running from section 14 to section 78 inclusive, the only ones in which the expression does not appear are sections 25, 46, 50, 56C, 56D, 60I, 60J, 60L, 60M, 61, 62, 62E, 62F, 67, 68A, 69, 72–74, and 77.

135. However, it is hard to see that it is used with a single meaning or shade of meaning throughout the Act. Various shades of meaning, some of which overlap, can be identified. Most frequently “cause of action” is used in the Limitation Act in the context of talking of the date when a cause of action accrues (eg, section 14). Frequently its use is as part of an expression “cause of action for” or “cause of action to recover” a particular type of curial relief or remedy (eg, “cause of action to recover any ... damages ...” in section 63). Sometimes, as in the definition of “successor” in section 11(1), it is in the context of talking of the “person liable on a cause of action”, or the closely related “person against whom ... the cause of action lies” in section 54. Sometimes it is in the context of a “cause of action arising under” some particular statutory provision (eg, section 14A). Sometimes it deals with one or more of the facts by virtue of which there is a cause of action (eg, “cause of action founded on a deed” in section 16). Sometimes it identifies, with greater or lesser particularity, the area of substantive law that gives a right to sue (eg, “cause of action founded on tort” in section 14, “cause of action founded on negligence nuisance or breach of duty” in section 58). Sometimes it deals with not only the facts by virtue of which there is a cause of action but also some related facts (eg, “the date on which the cause of action is discoverable by the plaintiff” in section 50C and 50D). Sometimes it talks of the objective a plaintiff seeks to achieve by litigation (eg, “cause of action to enforce an award of an arbitrator” in section 20, “cause of action to recover land” in section 27). Sometimes it refers to an attribute of the facts from which a right to take legal proceedings arises (eg, “cause of action with respect to any difference or matter referable to arbitration” in section 71). Sometimes more than one of these types of usage appear conjoined in the one section (eg, “cause of action founded on a mortgage ... to recover from any person any debt damages or other money payable under the mortgage” in section 40).

136. The sense in which it is used in section 11(3)(b) emerges when one considers the role that section 11(3)(b) plays in the Act as a whole.

137. Besides its appearance in section 11(3)(b), the concept of “disability” occurs elsewhere in the Act in section 50F, which is part of the amendments introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002. However, section 50F contains its own definition of being “under a disability”, part of which (the definition of “incapacitated person”) mirrors section 11(3)(b). Both because section 50F was introduced into the Act after section 11(3)(b), and because it contains its own definition, it does not cast light on section 11(3)(b).

138. The only places in the entire Act where the definition of “disability” in section 11(3)(b) has work to do is in section 52, and in related procedural provisions in section 53. The usual way in which a definition operates in a statute is by providing a set of words in the definiens that can be used to replace the definiendum in an operative provision of the statute, to articulate more fully the meaning of that operative provision: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, at 253 [103]; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at 574-5 [12] per McHugh J; San v Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492 at [43] (though incorrectly numbered [42] in the Motor Vehicle Reports). If the defined meaning of “disability” is notionally read into section 52, the first place it applies is in section 52(1)(c). When it is read into section 52(1)(c), “the cause of action” in section 11(3)(b) then refers back to section 52(1)(a) and (b). In other words, it is a particular right to sue that a particular person has, and concerning which the limitation period fixed by the Act has commenced to run.

“Management of His or Her Affairs”

139. The word “affairs” is one which is capable of a variety of meanings and can be quite broad: NSW Crime Commission v Murchie [2000] NSWSC 591; (2000) 49 NSWLR 465 at 469 [21] ff. Without trying to be exhaustive, the management of a person’s affairs can include the management of the whole range of practical matters of a business nature that that person is involved in.

140. In the context in which it occurs in section 11(3)(b), the relevant “affairs” are ones in relation to a particular cause of action. In a general sense, managing one’s affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.

141. In deciding the meaning of “affairs” in section 11(3)(b), one must bear in mind that the context in which it occurs is that of the Limitation Act. The sole concern of the Limitation Act is with the time within which an action must be commenced – anything that happens after an action has been commenced is irrelevant to it. The Act prescribes various limitation periods for different types of causes of action. The purpose of section 11(3) and section 52 is to identify circumstances in which it would always be just to allow the plaintiff a longer time within which to commence an action. (That is a different purpose to the purpose of provisions of the Limitation Act that empower a judge to grant a discretionary extension of the limitation period.) If a plaintiff were to become substantially impeded in the management of his or her affairs in relation to the cause of action after the action had been commenced that would not be relevant to the application of section 11(3).

142. As well, it is relevant that the only consequence that flows under the Limitation Act from a person being under a disability is that the running of a limitation period is suspended. A limitation period becomes of no practical importance once proceedings have been commenced within the limitation period.

143. Both these aspects of the context assist in concluding that the shade of meaning of “affairs” in section 11(3)(b) is one that places particular weight on the activities in relation to a cause of action leading up to and ending with the institution of proceedings.

“Substantially”

144. While I would not disagree with Slattery J’s view in Kotulski at 117 that in section 11(3)(b) “substantially” “does not mean trivial or minimal, neither does it mean total”, that still leaves open a wide range within which “substantially impeded” might fall. I do not read Slattery J as saying that falling anywhere within that range would suffice.

145. Palser v Grinling [1948] AC 291 concerned tenancy protection legislation that applied to “any dwelling house bona fide let at a rent which includes payments in respect of board, attendance or use of furniture ...”, subject to a requirement that:

“... a dwelling-house shall not be deemed to be bona fide let at a rent which includes payments in respect of attendance or the use of furniture unless the amount of rent which is fairly attributable to the attendance or the use of furniture, regard being had to the value of the same to the tenant, forms a substantial portion of the whole rent.”

146. In construing these provisions Viscount Simon (with whom Lords Thankerton, Porter, Uthwatt and MacDermott agreed) said, at 316-317:

“It is plain that the phrase [‘substantial portion’] requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other covenants of the landlord. ‘Substantial’ in this connexion is not the same as ‘not unsubstantial,’ ie, just enough to avoid the ‘de minimis’ principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord.”

147. Section 45D Trade Practices Act 1974 (Cth) proscribed certain types of industrial conduct that “would have or be likely to have the effect, of causing substantial loss or damage to the business of the corporation.”

148. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 382; [1979] FCA 85; 42 FLR 331 at 348, Deane J construed that requirement, and said:

“The word ‘substantial’ is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase ‘substantial loss or damage’, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ...

In the context of s 45D(1) of the Act, the word ‘substantial’ is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s 45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard ...”

149. Bowen CJ (with whom Evatt J agreed) at ALR 374-5; FLR 338-9 said:

“The word ‘substantial’ would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v Grinling [1948] AC 291, at pp 316-317). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.”

150. In Dainford Ltd v Lam (1985) 3 NSWLR 255, Powell J construed a provision in a contract for sale of land that conferred on the purchaser a right of recision if “the property was affected substantially and adversely by ... any proposal for ... widening ... of a road”. Powell J held that a right of recision on that ground arose, saying, at 268:

“... the word ‘substantial’ is one of indefinite meaning, and one which, more often than not, will take its ‘colour’ from the context in which it is used. Although I appreciate that other minds may differ, I take the view that, by adding the word ‘substantially ...’ to a clause which would otherwise have operated if the relevant effect was anything more than just nominal, the draftsman was intending to indicate that, before the clause could operate, the relevant effect must be shown to be of real substance. If this be so, then it seems to me that proposals which effect a reduction in the former frontage to Francis Road of 10 metres (about 14 per cent) and in the overall area of the land in the relevant certificates of title of 552 square metres (above 16 per cent) can only be regarded as ‘substantial’.”

151. These cases illustrate how there is always a judgment involved in deciding whether some quality “substantially” exists, and that the process of forming that judgment is dependent on the purpose for which the judgment is to be made. In Palser v Grinling, whether the amount attributable to attendance or use of furniture formed a “substantial portion of the whole rent” would be decided bearing in mind that the consequence of finding that it formed a “substantial portion” was that the tenant had no statutory protection, and the sort of purposes that providing statutory protection for a tenant was intended to achieve. In Tillmans Butcheries, the question of whether the industrial action would cause or be likely to cause “substantial loss or damage to the business of the corporation” clearly required the nature and scale of business of the corporation to be considered, so that one had an appreciation of the scale against which “substantial loss or damage” was to be measured, but as well the purpose of the statutory prohibition contained in section 45D would need to be taken into account. In Dainford v Lam, the percentages of frontage and area that would be lost through the road widening proposal are percentages that, for some purposes, might not be a substantial percentage, but in the context of how they affected a parcel of land being purchased, so far as the purchaser was concerned, they were of a type that ought be regarded as justifying the arising of the right to rescind, and so were substantial.

152. In the present context, whether the plaintiff has been “substantially” impeded is decided bearing in mind the context and purpose for which the court is called on to make the decision. It is for the purpose of deciding whether an as-of-right suspension of a limitation period will arise. It needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period.

153. It is not as though there is a single theme that can be perceived in subparas (i)–(iv) of section 11(3)(b) that could provide assistance in reaching that conclusion. The matters in subparas (i) and (ii) are often matters that are outside the control of the person in question, but not always – something within subpara (i) could arise from deliberately carrying out an activity that had a risk of impairing the person, and being imprisoned could be an indirect consequence of a deliberate decision to commit a crime. Further, subparas (iii) and (iv) would be available to a volunteer soldier as well as to someone involuntarily caught up in a war or its consequences. In situations where there has been more than one contributing cause to the plaintiff failing to start the action within what would otherwise have been the correct limitation period, a court deciding whether the plaintiff has been “substantially impeded” by one of the matters in subparas (i)–(iv) is required to assess the significance that the particular cause that falls within subparas (i)–(iv) has had in the plaintiff’s failure to start the action earlier.

Syntactical Structure of Section 11(3)(b)

154. Two aspects of the syntactical structure of section 11(3)(b) are clear. First, the words “in relation to the cause of action” form an adjectival phrase which describes “affairs”. They serve to divide off, from the whole ambit of the person’s affairs, those that are affairs in relation to the cause of action. For reasons given earlier, the relevant cause of action is the particular right to sue that the particular plaintiff in question wishes to assert, concerning which the court is considering whether the limitation period was still suspended.

155. Second, “by reason of” any of the four matters in subparas (i)–(iv) is an adverbial phrase which qualifies “incapable ... or substantially impeded ...”.

156. The wording of section 11(3)(b) is awkward when it uses the words “management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises”. It is not immediately clear how the phrases “in relation to the cause of action” and “in respect of the limitation period for which the question arises” fit into the syntactical structure of the chapeau of section 11(3)(b).

157. It is hard to see any syntactical role for “for which the question arises” other than to be an adjectival phrase describing “limitation period”. It seems that “the question” is intended to be the question concerning whether or not the plaintiff has been under a disability. That question arises “for” a limitation period, because if the plaintiff has been under a disability the effect of section 52 is that the running of the limitation period is suspended. Whenever any such question presents itself, it is a question that presents itself in relation to a particular plaintiff, and a particular cause of action that that plaintiff wishes to sue on.

158. The words “in respect of the limitation period for which the question arises” are fairly clearly an adjectival phrase, but what is the noun or noun phrase that they describe? It could not be “cause of action” – one has a limitation period in respect of a cause of action, but not a cause of action in respect of a limitation period. It would make sense of the syntax if “in respect of the limitation period for which the cause of action arises” described “affairs” – one’s affairs in respect of a limitation period would be those practical matters that needed to be attended to concerning the limitation period. They would involve doing those things one needed to do to be able to bring an action within the limitation period. However, reading the section that way would require the insertion of an “and”, so that the section read “management of his or her affairs in relation to the cause of action and in respect of the limitation period for which the question arises”. While the process of construction can proceed by reading a word into a statutory provision, it is preferable to avoid doing so if possible.

159. A meaning that is the same as I have just been considering will arise if the syntax is analysed so that “in respect of the limitation period for which the question arises” is an adjectival phrase that describes the noun phrase “affairs in relation to the cause of action”. So regarded, “in respect of the limitation period for which the question arises” serves to divide off, from the whole ambit of a person’s affairs in relation to a cause of action, those affairs that are in respect of the limitation period for which the question arises. Reading section 11(3)(b) as having that syntax would advance the purpose for which section 11(3)(b) exists. It is readily understandable policy that a limitation period should continue to be suspended while a plaintiff is substantially impeded in dealing with those practical matters that need to be attended to for the action to be brought in time.

160. In my view, that is the correct syntactical structure of section 11(3)(b). Its having that syntax enables one to advance from the conclusion reached by analysis of the meaning of “affairs”, namely that the shade of the meaning of “affairs” in section 11(3)(b) is one that places particular weight on the activities in relation to the cause of action leading up to and ending with the institution of proceedings, and to conclude that the only “affairs” that are referred to by section 11(3)(b) are those practical matters that lead up to and end with the institution of proceedings for the particular cause of action in question.

161. It is also readily understandable policy that not every matter that substantially impeded the plaintiff in dealing with the practical matters that needed to be attended to enable the action to be brought in time should justify an extension of time. Bad legal advice, an inattentive lawyer, or having other pressing family or business commitments could each provide a reason why the plaintiff was substantially impeded in bringing an action in time, but it would be understandable legislative policy not to allow those to provide a reason for automatic suspension of a limitation period. The same might also be the case for significant poverty. There may be a measure of arbitrariness in the circumstances listed in subparas (i)–(iv) as adequate ones to provide the reason why a substantial impediment in management of the relevant affairs is treated as suspending a limitation period, but that is the choice that the legislature has made.

The Role of the “Reasonableness” Test

162. The question that must be answered, for the purpose of section 11(3)(b), is whether “the person”, ie the plaintiff, had been substantially impeded in the management of the relevant affairs by reason of one of the matters in subparas (i)–(iv). The notion that a particular person, A, has been impeded in doing X by Y has within it the notion that that Y has got in the way of A doing X and made it more difficult for A to do X. In deciding that question, it might be of assistance to consider how a reasonable person, who did not have to deal with Y, would have acted in seeking to do X. However, considering how the reasonable person would have acted is not the same as considering whether A has been impeded. Slattery J in Kotulski did not treat the “reasonableness” test as anything more than a relevant matter to be considered. It is not even a relevant matter to be considered in the sense that proper consideration of the question would require the “reasonableness” test to be considered. Slattery J in reaching his conclusion returned in the passage I have quoted at [127] above to the correct question posed by the statute, deciding of the plaintiff that she was substantially impaired, &c.

Contrast Between Section 11(3)(b) and Other Provisions Concerning Disability

Provisions Requiring a Tutor For Litigation

163. The circumstances in which section 11(3) provides for a disability to exist are to be contrasted with the provisions of the Civil Procedure Act and the UCPR that require a litigant to carry on proceedings by a tutor. A requirement for proceedings to be carried on by a tutor is purely procedural, and does not affect the existence or eventual extinguishment of a cause of action in a person under legal incapacity, while by contrast section 52 regulates the period during which a cause of action is enforceable (and also, when section 63 Limitation Act is also taken into account, still in existence): State Rail Authority of NSW v Hammond (1988) 15 NSWLR 395 at 398-403; Haines v Leves (1987) 8 NSWLR 442 at 449; O’Brien v O’Brien (1995) 35 NSWLR 664 at 666.

164. A cause of action can accrue even if the limitation period is immediately suspended by section 52(1). Thus the suspension of the running of a limitation period does not postpone or suspend the right to start proceedings: O’Brien v O’Brien at 666; Cranbrook School v Stanley [2002] NSWCA 290 at [24].

165. As well, the circumstances where disability exists for the purpose of the Civil Procedure Act and UCPR are different to the circumstances where disability exists for the purpose of the Limitation Act.

166. Section 3 Civil Procedure Act 2005 contains a definition:

“person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes:

(a) a child under the age of 18 years, and

(b) an involuntary patient or a forensic patient within the meaning of the Mental Health Act 2007, and

(c) a person under guardianship within the meaning of the Guardianship Act 1987, and

(d) a protected person within the meaning of the Protected Estates Act 1983, and

(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.”

167. Pursuant to section 11 Interpretation Act 1987, which makes a definition in a statute also apply to delegated legislation made under that statute, that definition also applies to the Uniform Civil Procedure Rules 2005.

168. Part 7, Division 4 Uniform Civil Procedure Rules (which runs from rule 7.13 to rule 7.18) describes the way in which persons under legal incapacity may participate in litigation. Rule 7.13 extends the meaning of “person under legal incapacity” that arises from the definition in section 3 Civil Procedure Act, for the purpose of that Division. Rule 7.13 says:

“In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs.”

169. Rule 7.14(1) requires a person under legal incapacity to commence and carry on proceedings by a tutor. The particular examples of a “person under legal incapacity” given in paras (a)–(e) of the Civil Procedure Act definition are all people who suffer from a disability that is longer lasting and (apart from being under 18) more severe than would be needed to be under a disability within the meaning of section 11(3)(b) Limitation Act. Even if the extended sense in UCPR 7.13 is considered, the sort of incapacity to manage affairs that is involved in the requirement for a tutor is incapacity to do the range of things that is involved in not only starting, but also continuing with, litigation. In that way, the scope of the activities concerning which the incapacity has to manifest itself is wider, in UCPR 7.13, than would be relevant for section 11(3)(b). One can reach that conclusion without needing to solve the problems of construction of the definition of “person under legal incapacity” in the Civil Procedure Act and UCPR that I mentioned in Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627 at [156]- [157].

Incapacity Under the Protected Estates Act

170. Section 11(3)(b) is also to be contrasted with the notion of a person being “incapable of managing his or her affairs” that empowers the Court, under section 13(1) Protected Estates Act 1983 (see now section 41 NSW Trustee and Guardian Act 2009), to make a declaration to that effect, and order that the estate of the person be subject to management under that Act.

171. At a time when the Mental Health Act 1958 governed the appointment of managers of the property of an incapable person, Powell J said, in PY v RJS [1982] 2 NSWLR 700 at 702:

7. It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and

(b) that, by reason of that lack of competence there is shown to be a real risk that either:

(i) he or she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person [(1959) 76 WN (NSW) 477]); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo J”.

172. I gave further consideration to that test in Re GHI (a Protected Person) [2005] NSWSC 581; (2005) 221 ALR 589 at [5]- [21].

173. It is clear that it is a person’s capacity to deal with a wide range of practical affairs that matters for the purpose of the Protected Estates Act, while for section 11(3)(b) only a very narrow and precise subset of a person's practical affairs – namely those concerned with starting a particular piece of litigation within time – is relevant.

General Law Tests of Capacity

174. There is a further contrast between the test for disability laid down in section 11(3)(b) and the way the general law decides questions of capacity. Under the general law there is no single test for capacity to perform legally valid acts – rather, capacity is decided, in relation to each particular piece of business transacted, by reference to whether the person has sufficient mental ability “to be capable of understanding the general nature of what he is doing by his participation”, and concerning any legal instrument “is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained”: Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 at 437–8 per Dixon CJ, Kitto and Taylor JJ. Thus, capacity of both children and adults to give evidence is dependent, in broad terms, on being able to understand the nature and significance of the task that is involved in giving evidence: Heydon, Cross on Evidence, 7^th Australian edition, (2004), para [13050]-[13065], pp 376-83. Capacity to consent to medical treatment depends on the ability of the person in question to understand fully what is proposed: Secretary, Department of Health and Community services v JWB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218 at 237-8. The familiar test of testamentary capacity laid down in Banks v Goodfellow (1870) LR 5 QB 549 and Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 is dependent on being able to carry out the particular tasks involved in understanding and evaluating the matters that need to be taken into account in deciding what one’s testamentary dispositions will be. Capacity to marry is dependent on being able to understand the nature of the relationship of marriage: In the Estate of Park; Park v Park [1954] P 89; Sheffield City Council v E [2004] EWHC 2808 (Fam); [2005] Fam 326.

175. The task-specific nature of these tests of capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task – thus in Park v Park the person in question had capacity to marry but lacked capacity to make a will. In Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162 at [27], Kennedy LJ recognised that a personal injuries plaintiff might have capacity to make decisions concerning the litigation including whether or not to settle, but lack capacity to decide (even with advice) how to administer a large award.

176. These differing tests for capacity emphasise the need, when considering whether there is disability within the meaning of section 11(3)(b), to pay close attention to the wording of section 11(3)(b), and not be distracted by whether the person in question exhibits capacity in some other sense.

Application to Facts

177. I am not satisfied the judge erred in concluding that Mr Spence suffered a relevant disability after he had turned 18, and for a sufficient period of time for his action to have been brought within time.

178. When the condition of being “substantially impeded in the management of his ... affairs” for the purpose of section 11(3)(b) Limitation Act is focused on a narrow sub-category of Mr Spence’s affairs, namely those relevant to starting in time litigation to enforce the particular causes of action he is seeking to assert, it is far from decisive that in many other areas of his life he was well able to manage his affairs. It can readily be accepted that from the time he attained 18 he was able to attend to his ordinary activities of daily living, that he has the intelligence and application to get through a university course (though with some difficulties), and now is employed in a responsible position that requires the exercise of specialised skills. It can also be accepted that, if a person is able to manage their affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life. In my view, the medical evidence, and the history of the manner in which Mr Spence has come to deal with the consequences of the assaults, provide that explanation so far as his ability to manage his affairs in relation to dealing with his causes of action concerning the assaults is concerned.

179. The judge accepted, as do I, the medical evidence that Mr Spence suffers from post traumatic stress disorder, that the assaults were the trauma that was, at the least, a significant precipitating cause of the condition, and that avoidance of any form of stimuli or life events which may remind him of the assaults is one of the characteristics of the disorder. The avoidance behaviour is not only a matter of conscious decision on his part. As well, Mr Flockhart reports that there is “unconscious defensive avoidance or dissociation”.

180. The gradual way in which Mr Spence has even admitted to other people that he has been the subject of abuse is consistent with this – actually lying about it when counsellors or psychiatrists specifically asked him while he was at school, not even telling his parents until the end of 1999, not telling a doctor until 2000 (notwithstanding that he was seeing a psychiatrist from September 1998, and had seen psychiatrists on earlier occasions), and not widening the scope of those disclosed to beyond people very close to him like family and girlfriends, and professional helpers like doctors and counsellors until he went to the police in late January 2003. Even when he went to the police, he did so in the company of a counsellor. His statement to the police alleges that other boys, whom he names, were also victims of abuse by Mr Guthrie. That there were other victims also appears in the history taken by Dr Sternhell (para [79] above). If there were to be a criminal prosecution, that would provide some basis for thinking he would not be the sole focus of attention. Even going to the police was not without difficulty – the month when he was endeavouring to write a draft statement for the police would have coincided with the time he was subjected to involuntary twitches (para [63] above).

181. The Applicants placed reliance upon Mr Spence’s ability to make a complaint to police, and lodge a Victims’ Compensation Claim, as demonstrations of his ability to face up to the facts concerning the assaults, and take action to seek redress concerning them. However, even if complaining to the police and the Victims’ Compensation authority were to be seen as not relevantly different to starting civil litigation, I have already concluded that the date up to which Mr Spence needs to satisfy the court he was under a disability, for his claim to be in time, is 20 February 2002 (para [123] above). His complaint to the police was 11 months after that, and the Victims’ Compensation Claim was signed in February 2006, four years after the relevant date. Further, there is some substance in the difference that the judge pointed out (para [105] above) between making a complaint to initiate criminal proceedings and making a Victims’ Compensation Claim, on the one hand, and initiating civil proceedings on the other. The difference is not a radical difference of type, and should not be over-stated, but there is nonetheless a difference, which is relevant to how difficult it would be for Mr Spence to take the different types of course of action. I do not regard the fact that he was able to make a complaint to the police, or lodge a claim in the Victims’ Compensation Tribunal, at the times he did, as a basis for inferring that he was not under a disability, up to 20 February 2002, concerning the present causes of action.

182. He was able to pursue litigation making a claim for damages for personal injury during the time that is relevant for his current claim of having been disabled (para [97] above). However, the very different subject matter of that litigation in my view makes it relevantly different to the present litigation.

183. In my view, the evidence establishes that he had an impairment of his mental condition consisting of the post traumatic stress disorder. That post traumatic stress disorder caused him to be less able to seek the advice that would be needed if he were to take civil action to recover damages concerning the assaults than a person who had been assaulted, but had not developed post traumatic stress disorder, would have been. It made him less able than such a person would have been to engage in the rational decision-making which is involved in deciding whether to sue, once advice has been received.

Differing Diagnoses?

184. There is a heterogeneous collection of criticism that the Appellants make of the judge’s conclusion, which I must deal with.

185. Mr Windsor points out that Dr Jennings’ diagnosis was of personality disorder, not of post traumatic stress disorder. I do not regard that as a reason for rejecting the judge’s finding. The weight of expert evidence was that he suffered from post traumatic stress disorder. Further, Professor Quadrio agrees that he has a personality disorder, along with post traumatic stress disorder, and regards the personality disorder as itself a product of the abuse:

“When children suffer abuse and develop post traumatic phenomena during the critical years of personality development, as did Mr Spence, the disturbance becomes entrenched and characterological rather than reactive and is manifest over time as Personality Disorder, generally of the Borderline or Cluster B type ...”

Dr Blake makes the same diagnosis as Professor Quadrio.

No Evidence of When Disability Operative?

186. Mr Windsor submits that Mr Spence has failed to lead evidence of the periods when the alleged disability was operative. That submission needs to be evaluated bearing in mind the peculiarities of the disability that is alleged in the present case. For many of the matters listed in sub paras (i)-(iv) of section 11(3), one would ordinarily expect plaintiffs to be able to give precise evidence about the times during which they suffered the condition that they allege substantially impeded them in the management of their affairs concerning the cause of action. If someone was disabled because they suffered a disease or serious physical illness, because they were in gaol, or were distracted from their ordinary affairs by being involved in a war, one would ordinarily expect the plaintiff to be able to say for how long that condition existed, and the manner in which it affected the plaintiff’s ability to deal with his or her affairs concerning the cause of action. An impairment of mental condition does not work in quite the same way. Impairments of mental condition are frequently diagnosed after they have arisen, sometimes years after they have arisen. At least in some cases a mental impairment can affect a person’s behaviour in ways that they do not attribute at the time, and sometimes do not even attribute subsequently, to that impairment of their mental condition.

187. In my view, Mr Spence has provided the sort of evidence properly to be provided concerning a mental condition of the type he relies on. He has provided, in both his evidence and the histories he gave to doctors, a detailed account of the circumstances of his life since the assaults, and medical evidence on the basis of which it is open to infer that the centrally relevant aspect of his past behaviour, namely his failure to sue at an earlier time than he did, was caused by his mental condition.

No Causal Connection?

188. The Applicants submitted that the judge ought not have been satisfied of the causal link between any impairment of Mr Spence’s mental condition and his manifest delay in commencing litigation. Such a causal link is required by the “by reason of” phrase in section 11(3)(b). They point to the statement of Basten JA in his dissenting judgment in Harlum at [139] that there are many reasons why people might not pursue a legal claim:

“... doubt as to the likelihood of success, fear of lawyers’ fees, fear that the benefit will not be worth the cost, including the emotional cost, of being involved in ligation, not wishing to sue a person one knows and many other similar reasons.”

189. It was not put to Mr Spence in cross-examination that any such matter was the reason why, or a reason why, he had not sued earlier. In my view, the correct inference in the present case is that Mr Spence was impeded in the management of his affairs in relation to commencing action to claim damages for the assaults by reason of the post traumatic stress disorder.

No Evidence from Lawyers?

190. As Mr Windsor correctly points out, there is no evidence in the present case from any barrister or solicitor of any outward manifestation by Mr Spence of any difficulty in dealing with a cause of action. Such evidence was present in Kotulski and in State of NSW v Bennie. While such evidence can often be persuasive, it is by no means necessary. In the present case it was unavailable, because Mr Spence did not see any barrister or solicitor concerning the present causes of action until the date that the judge found the disability continued to.

Professor Quadrio’s Report Addresses the Wrong Question?

191. Both Applicants assert that the judge erred in relying on the report of Professor Quadrio, when the professor’s first report posed and answered the wrong question, and when a specific attempt to ask her to answer “the correct question” in a subsequent report was unsuccessful.

192. I have set out at para [89] above question 4 that was asked of Professor Quadrio, and her answer to it. The question that was asked is wider than the question that is relevant for the purpose of section 11(3)(b). The “management of his affairs as far as they relate to the assaults” covers more than the management of those of his affairs that are involved in being able to commence action to seek damages for torts alleged to have been committed concerning the assaults. Even the supplementary question that Professor Quadrio was asked (para [91] above) went somewhat wider than was strictly relevant for the purpose of section 11(3)(b).

193. Because of this, if, when the judge said that Professor Quadrio’s report “nevertheless does go far enough to establish the disability” he had meant that her report by itself was enough to establish the disability, I would not agree. However, in the context of his judgment as a whole I do not read the judge as saying that. Rather, it seems to me that he is saying that her report goes far enough to be a relevant and useful item to take into account, along with the other evidence, in establishing the disability.

194. That Professor Quadrio’s reports do not address the ultimate question posed by section 11(3)(b) is by no means fatal. The task of deciding whether a plaintiff was under a disability within the meaning of section 11(3)(b) is not the sort of matter that is capable of being solved by medical evidence alone, and there are limits on the assistance a judge can derive from medical evidence. In performing that task, medical evidence can sometimes be of great assistance in deciding whether a person has been suffering from an impairment of his or her mental condition. However, even that element of the definition could in some circumstances be proved by lay evidence, of enough instances of aberrant or inadequate behaviour. Medical evidence about the way in which a particular mental condition manifested itself could also be of assistance in concluding that it was by reason of an impairment of the plaintiff’s mental condition that he or she was impeded in management of affairs in relation to the cause of action. Again, however, even that element could in some circumstances be proved by lay evidence, particularly when the impairment of mental condition was gross.

195. Even when medical evidence is available that bears upon whether a person had capacity, for some legal purpose, it is frequently expressed in terms appropriate for a medical diagnosis. Expert evidence can be very helpful in identifying the circumstances from which the diagnosed condition arises, and how it manifests itself in the patient’s life. But the legal test for incapacity that is applicable in some particular litigious circumstance is usually not expressed in terms of medical diagnosis. It is for the judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular relevant legal test for incapacity has been satisfied. In Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P said, concerning testamentary incapacity:

“In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as ‘delusion’ or ‘paranoia’ have been established.”

Though these remarks were made in a dissenting judgment, they are a correct statement of principle. The same applies concerning section 11(3)(b).

196. The need for more than medical evidence to be taken into account in deciding whether incapacity has been established has been recognised, in litigious contexts outside that of limitations, in Kerr v Badran [2004] NSWSC 735 at [48]- [50]; Revie v Druitt [2005] NSWSC 902 at [34], Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir [2008] NSWCA 155; (2008) 71 NSWLR 593 at 598 [22], 603-4 [48], and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65].

197. Deciding whether a particular plaintiff’s ability to deal with the practical tasks of initiating litigation has been impeded is often a matter of inference rather than something proved by direct evidence. It could not be expected that the ordinary skill and training of a medical practitioner would inform them of the nuances of the test for disability that section 11(3)(b) poses, and here Professor Quadrio was given no help in trying to grasp them. Further, the question of whether a person has been substantially impeded in the management of his or her affairs in relation to the cause of action is a mixed question of fact and law, because it involves an evaluation of whether such impediments to management of affairs as have been shown to exist amount to the plaintiff being “substantially impeded”. The evaluative element in making that decision is one for the judge alone. That is why Professor Quadrio’s report by itself would not have been enough to establish the disability.

198. Where the ultimate issue for determination by a court involves a pure question of the existence of a medical condition, it may be appropriate and inevitable that an expert will address the ultimate issue directly. Where, as here, the ultimate issue involves other considerations, it will often be inappropriate to expect (or even invite) the expert to address that issue.

199. Here, the judge had other evidence as well. Further, and importantly in coming to an assessment of a person’s mental functioning, he had the advantage of seeing Mr Spence giving evidence. The judge regarded that as being sufficiently important to call for careful description in his judgment (para [103] above).

200. If I were wrong in my reading of what the judge meant when he said that Professor Quadrio’s report “nevertheless does go far enough to establish the disability”, and the judge had meant to say that her report by itself was enough to establish the disability, that would be an error that would require this Court to reconsider the question of disability for itself. As emerges from these reasons for judgment, I would come to no different conclusion to that which the judge came to.

Professor Quadrio’s Report Unreliable Because She Says Plaintiff Still Disabled?

201. As well, Mr Windsor submits that Professor Quadrio’s report is weakened by her conclusion that Mr Spence was still, at the date of the report, under a disability.

202. A similar submission was made to the trial judge, who dealt with it (at [32]) as follows:

“One must recognise, and perhaps there is an inconsistency in this approach, that the plaintiff must have reached a stage where he was not disabled (within the terms of the Act) because proceedings have, in fact, been issued. The inconsistency of course is between that position and A/P Quadrio’s opinion that he was disabled in 2008, some two years after the proceedings were commenced. This inconsistency was relied upon by the defendants. I agree that there is an inconsistency but it is one that must be viewed against the background of the plaintiff’s continuing struggle to deal with his past. He must in February 2006 have been capable of giving the instructions. That does not mean that in May 2008 a psychiatrist would not still see in him those elements that make up the disability under the Act. There is a clear arbitrariness in setting a date for the end of the disability. So much was observed in Harlum. It may also be that a disability may end but later reappear. I would not be setting myself up as an expert to say that mental illness does not lie dormant forever once overcome.”

203. In my view, Professor Quadrio’s view that he was still under a disability of the relevant type is a product of her not having appreciated the correct legal construction of section 11(3)(b). She was clearly of the view that Mr Spence suffered from post-traumatic stress disorder, that he continued to do so, and that it continued to interfere with his ability to cope with the consequences of the assaults. She did not appreciate that it is only impediment in dealing with a very particular subset of matters arising from the assaults that matters for the purpose of section 11(3)(b). That does not limit the usefulness of her report, provided one recognises that she was not answering the ultimate question. Outside the particular meaning of being substantially impeded in the management of one’s affairs that applies in section 11(3)(b), there is no inconsistency between a person being substantially impeded in carrying out some task, but still managing to carry it out. Being “substantially impeded” is not the same as being totally prevented.

Flockton Report Unreliable?

204. Mr Windsor submits that the value of Mr Flockton’s report is diminished by the fact that when Mr Spence completed a Personal Assessment Inventory his score “strongly indicates that he did not attend appropriately” to the items on the test. Thus, Mr Flockton did not offer any clinical interpretation of those test results.

205. The Personal Assessment Inventory was not the only test that Mr Spence completed for Mr Flockton. As well, Mr Flockton saw Mr Spence on three separate occasions (13 October 2005, 4 December 2006 and 12 December 2006). Mr Flockton took a detailed history, as well as administering a total of four tests. His report explained the problem there was with the reliability of the results of the Personal Assessment Inventory, and he expressed such views as he felt able to consistent with his concerns about the validity of the results of that particular test. I would not be prepared to discount the conclusions Mr Flockton reached.

Basis of Judge’s Decision Unclear?

206. Mr Windsor points out that the judge did not state whether his conclusion of disability was reached by reference to incapacity, or impediment. There is no appeal based on inadequacy of reasons. In any event, his Honour’s conclusion of disability is supportable, and in my view correct, on the “substantially impeded in” limb. The terms of the judgment show that that is the limb the judge had in mind, because at [17] the judge quoted Professor Quadrio’s conclusion that Mr Spence had “mental disability” that “substantially impeded” Mr Spence in terms of the above definition.

207. Mr Spence’s counsel in the court below opened the case to the judge using the “substantially impeded” limb, and said nothing in opening about the “incapable of” limb. In closing submissions on the second day of the hearing, Mr Windsor twice (tp 10, 12) dealt with the case on the basis that the relevant issue was one of substantial impediment. The judge delivered his judgment that afternoon. There is no doubt that it was the “substantially impeded in” limb that he had in mind.

Arbitrariness of End Date for Disability?

208. Mr Windsor criticises the arbitrariness of the end point that the judge nominated for his finding about Mr Spence’s disability, namely the date Mr Spence first approached his current lawyer about the matter. I do not join in the criticism. First, the date Mr Spence first approached his current lawyer has a clear and logical relationship to the test for disability in section 11(3)(b), in that it is the date on which he first actually took a practical step to seek damages concerning the assault. Second, it is a date that is well after the date up to which the judge needed to find that disability existed, if Mr Spence’s action was to be brought in time. There was no need for the judge to enquire whether Mr Spence still had a disability, within the meaning of section 11(3)(b), after the date he first consulted his solicitor.

Orders

209. I propose the following orders:

(1) Grant leave to appeal.

(2) Transfer proceedings number 6053 of 2008 in the District Court of New South Wales into this Court.

(3) In proceedings number 6053 of 2008 of the District Court of New South Wales, order

(a) Nunc pro tunc, as at 20 February 2009,

(i) that there be a separate determination of the following question:

“So far as the causes of action that the plaintiff alleges are concerned, was the plaintiff under a disability after attaining the age of 18 years, and, if so, did that disability last sufficiently long for these proceedings to have been brought within the applicable limitation period.”

(ii) that that question be answered on the basis of evidence presented to the court.

(b) Nunc pro tunc, as at 27 February 2009:

“The separate question be answered by holding that, so far as the causes of action that the plaintiff alleges are concerned, the plaintiff was under a disability after attaining the age of 18 years, and that disability lasted sufficiently long for these proceedings to have been brought within the applicable limitation period.”

(4) Grant leave to appeal against the order by which the District Court answered the separate question posed on 20 February 2009.

(5) Appeal dismissed with costs.

(6) Remit matter number 6053 of 2008 of the District Court of New South Wales to the District Court.

210. HANDLEY AJA: I agree with Campbell JA.

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AMENDMENTS:


23/11/2009 - removal of identifying fact. - Paragraph(s) 39

24/11/2011 - Punctuation error corrected - Paragraph(s) 197


LAST UPDATED:
24 November 2011