Brown v McArthur [2007] QDC 109

DISTRICT COURT OF QUEENSLAND CITATION: Brown v McArthur [2007] QDC 109 PARTIES: ROBYN BROWN Plaintiff AND JOHN MCARTHUR Defendant FILE NO/S: BD1692/01 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 15 June 2007 DELIVERED AT: Brisbane HEARING DATE: 4 May 2007 JUDGE: McGill DCJ ORDER: Judgment that the plaintiff’s claim against the defendant be dismissed; Order the plaintiff pay the defendant’s costs of the action including the costs of this application. CATCHWORDS: LIMITATION OF ACTIONS – Personal Injuries – psychiatric injury – when time begins to run – clear psychiatric illness suffered more than three years before action commenced. Limitation of Actions Act 1974 s 11. Brisbane Unit Development Corporation Pty Ltd v Robertson [1983] 2 Qd R 105 – applied. Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 – followed. Gillespie v Elliott [1987] 2 Qd R 509 – applied. Pullen v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27 – followed. Wilson v Horne (1999) 8 Tas R 363 – followed. Deputy Commissioner of Taxation v Salcedo [2005] QCA 237 – applied. COUNSEL: M. Grant-Taylor SC and C. Heyworth-Smith for the plaintiff A. P. J. Collins for the defendant -- 1 of 7 -- 2 SOLICITORS: Maurice Blackburn Cashman for the plaintiff Woodgate Hughes for the defendant [1] This is an application by the defendant for summary judgment under r 293, or in the alternative, for certain paragraphs of the further amended statement of claim filed 18 May 2005 to be struck out pursuant to r 171. The application was originally filed in July last year, and has been adjourned on several occasions before it was finally heard by me in May this year. The defendant is applying for summary judgment on the basis that the plaintiff’s action is bound to fail because her cause of action is statute barred. The claim was filed on 6 April 2001. What limitation period? [2] The defendant submitted that the plaintiff’s claim was one for damages for personal injury,1 so that the relevant limitation period was three years.2 On behalf of the plaintiff, however, it was submitted that the claim was in part one for damages for economic loss, and that insofar as this is so, the relevant limitation period is six years. The claim when filed said that the plaintiff claimed “damages for personal injuries and other loss and damage as a result of the negligence and/or breach of contract and/or breach of statutory duty of the defendant …” That on its face extends beyond a claim for damages for personal injury, but the first difficulty is that the current statement of claim does not it seems to me plead a cause of action separate from one for damages for personal injuries. [3] It does allege that the defendant was negligent in the provision of counselling to the plaintiff, that as a result of this (and other things) done by the defendant the plaintiff suffered psychological injury (para 12), and that as a consequence of the negligence the plaintiff has suffered injury loss and damage of the nature and in the amounts set out: para 14. Most of the specific matters listed in paragraph 14 are obviously amounts claimed in respect of loss and damage said to have been suffered as a result of the psychological injury previously alleged. [4] Subparagraph (b) does allege the plaintiff has incurred economic loss in the past in the form of certain wages she would have earned if she had continued her employment beyond a particular date, and in wages she would have earned if she had continued in work as a casual waitress until the commencement of a business in May 2001. The difficulty for the plaintiff, however, is that there is nothing in the pleading to indicate that these matters relate to anything other than a consequence of the alleged psychological injury. It is not alleged that the defendant counselled the plaintiff not to continue the particular employment referred to in paragraph 14(b)(i) of the statement of claim, and it is alleged in paragraph (i)B of the particulars to paragraph 5(a) of the statement of claim that the defendant counselled the plaintiff that she should remain for a waitress working for a boss rather than being ambitious to start her own business. In these circumstances, I cannot see how the plaintiff’s ceasing to work as a casual waitress in February 1998 can logically be said to be a direct consequence of that counselling. It was alleged that the plaintiff acted on the counselling by not commencing a small business of her own, but it was not alleged that she suffered any financial loss as a result of doing so; on the contrary what was 1 See Limitation of Actions Act 1974 s 5(1). 2 Ibid s 11. -- 2 of 7 -- 3 alleged was that there was a loss not as a result of staying as a waitress, but as a result of not staying as a waitress. [5] It was also alleged (somewhat inconsistently) that there was counselling that the plaintiff should change from a waitressing job to a kitchen hand job, and further that “it was the plaintiff’s fault that she did not understand her new role as a kitchen hand as the defendant knew her then employer and there was no way that it could be the employer’s fault.” That plainly implies that during the period of the counselling, which is on the face of the pleading a period of 12 weeks during 1996, the plaintiff did change from a waitressing job to a kitchen hand job, and that was alleged in particulars provided. But it was not alleged that as a result the plaintiff suffered economic loss because the kitchen hand job was less remunerative. Rather what was alleged was that some two years later in 1998 the plaintiff ceased work as a waitress. I think the only reasonable interpretation of the pleading in all the circumstances is that the economic loss claimed in respect of her having ceased work as a waitress was economic loss consequent upon the psychological injury in respect of which other damages were also claimed. In my opinion, what was actually claimed in this statement of claim was damages for personal injury and nothing more. Accordingly, the relevant limitation period was three years. [6] In any case s 11, which imposes a limitation period of three years in respect of personal injury, provides that that limitation period applies to an action in negligence “in which damages claimed by the plaintiff consists of or includes damages in respect of personal injuries …” (emphasis added). The present action is one in negligence and the damages claimed certainly include damages in respect of personal injury, even if they are not exclusively damages for personal injury. Accordingly, the limitation period was three years. When did the period begin to run? [7] A limitation period begins to run once the cause of action is complete, that is, once all the facts which the plaintiff must prove in order to succeed have occurred.3 Relevantly, that means once the plaintiff has suffered damage sufficient to enable her to sue.4 It is possible for no damage to be suffered until some time after the breach relied on as constituting the negligence of the defendant,5 and therefore the fact that the breach occurred more than three years before the action was commenced is not conclusive.6 Further, the action is one claiming damages for psychiatric injury or, as it used to be called, mental or nervous shock. Such injury is only actionable when it amounts to a recognisable psychiatric illness.7 Accordingly, it was not open to the plaintiff to sue prior to the time when any mental disturbance or abnormality of mind amounted to a recognisable psychiatric illness. Assuming in favour of the plaintiff that this was not something which 3 Williams v Milotin (1957) 97 CLR 465 at 474; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 169, 179. 4 Handford “Limitation of Actions” (Law Book Co 2004) p 49. 5 See for example Commissioner for Railways v Stewart (1936) 56 CLR 500 (obstruction of a watercourse causing flooding 50 years later); Wright v Borzi [1979] Qd R 179 (inaccurate identification of Rh factor in women’s blood). 6 The breach here was alleged to have occurred during 1996, and no action was commenced until 2001. 7 Tame v New South Wales (2002) 211 CLR 317 at 382 per Gummow and Kirby JJ. -- 3 of 7 -- 4 occurred immediately at the time of the breach, but came on later at some time, the cause of action was not complete, and the limitation period did not begin to run, until the plaintiff was suffering from a recognisable psychiatric illness. [8] It must be emphasised, however, that what matters is when she had a psychiatric illness capable of being recognised as such by medical science, not when it was in fact recognised (by the plaintiff or anyone else) that she was suffering from it.8 The latter may be relevant to an application to extend the limitation period, but not to the question of whether the limitation period has run. Whether a person is or is not suffering from such a illness is a question fact, and in principle it is possible to determine as a matter of fact the point at which the plaintiff began to be suffering from it.9 In practice when the issue is whether the plaintiff is suffering from an actionable injury the only question is whether at some time that test was met; when the issue is whether the limitation period has run against the plaintiff, the issue is whether it can be said that that test was met prior to a date three years before proceedings were commenced. If it was, those proceedings are out of time. [9] In these circumstances it is unnecessary to consider the interesting question of when the psychiatric harm first began to be suffered by the plaintiff, by analogy with a physical disease or progressive and insidious injury,10 or indeed insidious damage to property, which was discussed in the supplementary submissions. I am prepared to assume in favour of the plaintiff as it is not a matter of when she first began to suffer from what ultimately became a recognisable psychiatric illness, but when her condition deteriorated to the point where it met that description.11 Prior to that point, she could not have sued, the cause of action was not complete, and the limitation period did not run.12 [10] The claim having been filed on 6 April 2001, the question is whether the defendant can show13 that the plaintiff was suffering a recognisable psychiatric illness alleged to have been caused by the defendant’s negligence relied on prior to 5 April 1998. Although the further amended statement of claim does not allege when the plaintiff suffered what is there described as psychological injury, the economic loss claimed dates from 14 February 1998, so that in effect the pleading is claiming that the plaintiff has suffered economic loss as a result of the injury as early as February of that year. On the face of the pleading therefore the plaintiff is alleged to have suffered the injury more than three years before the claim was filed. However, that is not conclusive for the purposes of an application for summary judgment, which looks to the outcome at a trial of the action. One of the things that can happen at (or before) a trial is the amendment of the pleadings, so that for the purposes of a summary judgment application what matters is not whether the plaintiff has pleaded a good cause of action but whether the plaintiff might succeed on all or part of the 8 Gillespie v Elliott [1987] 2 Qd R 509. 9 In practice a lack of expert evidence based on timely examination is likely to make more difficult what is in any event a difficult task because of the vagueness inherent in the concept of “recognisable psychiatric illness”: see Butler “Damages for psychiatric injuries” (2004) p 135. 10 See for example Martindale v Burrows [1997] 1 Qd R 243. 11 Wilson v Horne (1999) 8 Tas R 363 at [14]-[15] per Cox CJ; [31] per Wright J; [50]-[51] per Evans J (special leave refused: p 389); see also the opinion expressed in Mullany and Handford “Tort Liability for Psychiatric Damage” (2nd ed, 2006) p 388. 12 Central Electricity Generating Board v Halifax Corporation [1963] AC 785 at 806 per Lord Guest. 13 The onus is on the defendant to show that the plaintiff’s action is statute barred: Pullen v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27 at 72-77; Cigna Insurance v Packer (supra) at p 175. -- 4 of 7 -- 5 claim if the claim goes to trial. It is therefore necessary to turn to the evidence. There was surprisingly little of this put before me. The evidence [11] With regard to evidence, the defendant tendered at the hearing a copy of a report dated 14 November 2000 provided to the plaintiff’s solicitors by a psychologist Dr Helen McGrath. Among other things, the report said: “[The plaintiff] had a ‘psychological breakdown’ in 1998 which she believes was solely due to the callous and unethical behaviour of [the defendant] over a long period of time.”(para 2); “In November 1996, she was invited to train and work at the Inner Energy Centre as a salaried spiritual healer, and she did so during that year and most of 1997 … She began experiencing intense anxiety, panic attacks, and symptoms of depression … In November 1997 she terminated her healing sessions with [the defendant] and was assigned another healer at the Inner Energy Centre. Towards the end of 1998, she had what she described as the beginning of a ‘psychological breakdown’.” (para 16); “In February 1998 she finally decided to resign from her job as a spiritual healer at the Inner Energy Centre because she felt such distress at having to be in close contact with [the defendant] on a daily basis, and because her anxiety and depression were increasing and making it difficult for her to work competently.” (para 17) [12] Paragraph 18 referred to her attending a general practitioner in August 1998 and being prescribed medication, and her beginning counselling in September 1998 with a different general practitioner. The psychologist in paragraph 24 concluded inter alia: “From 1997 to 2000 she appears to have had symptoms consistent with the DSM IV diagnoses of generalised anxiety disorder, panic disorder with agoraphobia, and major depressive episode. Her current symptoms, although not as severe as in 1997, 1998 and 1999, are consistent with DSM IV diagnoses of generalised anxiety disorder, social phobia, and major depressive disorder.” That evidence indicates that there was a recognisable psychiatric illness as early as 1997, and hence prior to April 1998, although it also suggests that the illness developed and got worse later in 1998 and 1999. That the damage increased is irrelevant if the limitation period had already commenced to run.14 [13] That report referred to a questionnaire. The solicitors for the plaintiff disclosed to the solicitors for the defendant a document identified as the questionnaire provided to Dr McGrath on 13 October 2003, and a copy of the questionnaire is in evidence.15 It does not say anything relevant to timing, but does relate the plaintiff’s alleged condition to the defendant’s actions. [14] On 4 September 2001 the then solicitors for the plaintiff wrote to the Anti-Discrimination Commission seeking an extension of time for the plaintiff to make a complaint. That letter referred to the report of Dr McGrath, and the opinion expressed in paragraph 24 which referred to various psychiatric conditions in the 14 Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1. 15 Affidavit of Markula filed 5 September 2006 (document 35) Exhibit ERM-2. -- 5 of 7 -- 6 period from 1997 to 2000. It also said among other things “her emotional health had been deteriorating from 1997 onwards” (p 3). It also said: “Following the cessation of her professional relationship with [the defendant], [the plaintiff] suffered from fear and anxiety which caused her to be unable to do anything about what had occurred with [the defendant]. She describes herself as lacking emotional strength. She suffered a depressive illness.” (p 2) [15] There was also a reference to a report of Dr Edmunds, dated 5 November 2000, a copy of which was provided to the commission; neither party put that report in evidence before me. [16] At the hearing counsel for the plaintiff tendered a further report of Dr Helen McGrath dated 23 July 2991. This appears to be directed specifically to the question of delay in the plaintiff’s filing an anti-discrimination claim against the defendant. Among other things, Dr McGrath said in the course of that report: “In 1996 and 1997, and as a direct result of her experiences with [the defendant, the plaintiff] suffered from intense anxiety and depressive symptoms. She had a complete psychological breakdown in 1997 and was diagnosed with a major depressive disorder at the end of 1999. She became completely isolated and withdrawn. She has been so focused on her own emotional survival for the last four and a half years that it has been impossible for her to contemplate any actions other than those that will get her through each day” (p 5). [17] That was written in July 2001, so the period of four and a half years commenced at the beginning of 1997. [18] In response, senior counsel for the plaintiff submitted that the reference to the psychological breakdown in 1997 in the report of July 2001 was obviously a mistake because this was a reference to the psychological breakdown referred to in the other report as occurring in 1998. As to that, this is simply speculation; there are two different reports from Dr McGrath which give two different dates for a psychological breakdown, but no evidence that one (and which) was a mistake. The position may simply be that Dr McGrath’s opinion on the subject changed between the first and the second reports. Alternatively, she may be using the term “psychological breakdown” in the second report to refer to the events in 1997 which she described in other terms in the first report. I am certainly not prepared to assume that there was some mistake involved. [19] There was no other evidence from either party which touched on the question of when the plaintiff first suffered a recognisable psychiatric illness. In circumstances where all of the evidence points in the one direction, and clearly towards there having been a recognisable psychiatric illness prior to April 1998, the question of who has the onus is of little significance. Any onus to prove that the psychological injury was in existence prior to April 1998 has on this evidence been discharged. -- 6 of 7 -- 7 Analysis [20] In relation to this application, the question is whether I am satisfied that the plaintiff has no real prospect of succeeding on all or part of her claim and that there is no need for a trial of the claim or a part of the claim. I interpret that provision in the way explained by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] QCA 237. The plaintiff relied on the analysis of the approach to an application for summary judgment of Chesterman J in Gray v Morris [2004] 2 Qd R 118. I have never regarded his Honour’s judgment in that matter as representing the majority view, and it seems to me that his Honour has subsequently conceded as much.16 I do not approach this application on the basis that the defendant must satisfy the General Steel test.17 [21] There can easily be cases where it is inappropriate to decide whether or not a limitation defence is going to succeed prior to a trial; on the other hand, there can be cases where it is clear enough that it will succeed if the matter goes to trial for summary judgment to be given under r 293. I do not think there is any general principle that summary judgment under r 293 is never to be given on the basis of a limitation defence. Of course, if there is a conflict of evidence about the matter, or if the evidence which is put before the court indicates some uncertainty about the matter, then the court will not be satisfied for the purposes of r 293. But what is significant in this matter is that all the evidence is one way, that is, to the effect that there was a recognised psychiatric illness prior to April 1998. There is neither evidence to the contrary on behalf of the plaintiff nor any evidence to suggest that if the matter went to trial there would be evidence to the contrary.18 [22] An application under r 293 is not to be defeated by speculation that there will be evidence neither put forward nor foreshadowed at that stage that if the matter is allowed to go to trial will somehow save the plaintiff’s case.19 I accept that not necessarily all evidence which will be relied on at a trial has to be put before the court on such an application, but it is necessary, in circumstances where there is evidence which on the face of it shows that the limitation defence is good, for the plaintiff to put forward some evidentiary basis to support the proposition that there is a need for a trial, or some real prospect of succeeding on all or part of her claim. That has not been done in this case. [23] Accordingly, on the evidence presented I am satisfied that it is sufficiently clear that the plaintiff has no real prospect of succeeding on any part of her claim because the claim is barred by the Limitation of Actions Act 1974 s 11, and that there is no need for a trial of the claim, for it to be appropriate to give summary judgment under r 293. I therefore give judgment that the plaintiff’s claim against the defendant be dismissed. In these circumstances it is unnecessary to consider the alternative application to strike out parts of the statement of claim. The plaintiff must pay the defendant’s costs of the action including the costs of this application. 16 See Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3 at [14]. 17 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125. 18 See Blatch v Archer (1774) 1 Cowp 64 at 65, 98 ER 969 at 970 per Lord Mansfield, quoted by de Jersey CJ in Crombie v Livingstone Shire Council [2000] QCA 229 at [2]. 19 cf Brisbane Unit Development Corporation Pty Ltd v Robertson [1983] 2 Qd R 105. -- 7 of 7 --