In the recent decision of Hooper v Hooper (unreported decision of Jones J dated 13 September 2011) the Court considered the Plaintiff's Application to extend his limitation period. The Plaintiff commenced proceedings in the Court on 30 May 2008 seeking damages against his father for assault and/or battery, trespass to the person and negligence. The Plaintiff's Statement of Claim alleged abuse by his father at various times (but not sexual abuse) between the date of his birth in 1971 and 1991. The Plaintiff contended that as a result of the alleged abuse he had suffered physical and psychological injury.

The Defendant denied all of the pleaded allegations of abuse, assault and neglect and raised sections of the Limitation of Actions Act 1974 (Qld) as a bar to the Plaintiff's claim on the basis that the Plaintiff was out of time.

The Plaintiff was 40 years of age at the time and had been admitted as a legal practitioner and also undertook the Bar practice course and was admitted to the Bar in January 2003 but did not practice as a barrister. The Plaintiff undertook various forms of employment including the role of an insurance investigator, legal costs consultant from 2002 to 2004 as well as a law clerk and subsequently a solicitor.

The Court noted evidence adduced by the Defendant said to demonstrate a long history of problems of an emotional and psychological kind. The Court noted that in 2004 the Plaintiff's psychological problems caused difficulty in his coping with the responsibility of his role as an insurance investigator. The Court noted the Plaintiff was treated by a number of psychologists and that in 2007 whilst working as a solicitor he contended that he suffered a significant relapse of his psychological problems. The Plaintiff contended that it was this ‘relapse’ that constituted a ‘material fact’ forming this basis of the extension of the limitation period.

The Court noted the Plaintiff's Affidavit material filed on 8 May 2008 in relation to his Application for Leave to Commence Proceedings in which the Plaintiff swore:

“18. However, I can remember that in or about early to mid-July 2007 I had a significant relapse of my psychological symptoms. I started to have panic attacks. I started to feel very depressed and I started to have overwhelming feelings of inferiority and an inability to cope with the demands of the legal profession. Initially I did not have anybody to confide in and I tempted to ‘soldier on’ and do my work.

19. Eventually I reached a stage where I realised I could not continue much longer with the responsibilities of the legal profession, or indeed with any work responsibilities. All my previous overwhelming feelings of inferiority and depression had returned. I was having frequent panic attacks. I started to form a belief that I simply could not continue. I also started to experience some significant suicidal thoughts. For some reason I often think of trains when I am depressed and I started to have thoughts of throwing myself under a train as an effort to ending my life. This started to worry me greatly.”1

The Court noted the Plaintiff's Affidavit went on to describe a discussion with a barrister and his subsequent referral to a firm of solicitors for assessment of his claim.

The Court noted the evidence of the Defendant with respect to the Plaintiff's medical history for the period prior to July 2007 and thereafter.

His Honour Justice Jones noted the evidence of Dr Basil James, Psychiatrist, who assessed the Plaintiff on 28 May 2008 and provided a report dated 27 June 2008. His Honour noted Dr James’ findings of no evidence of any formal disorder and that he found the Plaintiff to have ‘good to superior range of intelligence’ but that the Plaintiff was suffering from a severe disorder of personality. His Honour noted that Dr James found that the allegations of abuse contended by the Plaintiff were consistent with the diagnosis made by Dr James.

Dr James was not called to give evidence. His Honour opined:

“… The impression that one is left with on reading this report is that the personality disorder diagnosis was long-standing, and was a contributing factor to the Plaintiff's depression for which he has been treated for many years. This is well supported by other evidence.”2

To that end, His Honour noted that in 1998 the Plaintiff attended upon a psychiatrist for the purposes of obtaining a concession in relation to his studies whilst at university which His Honour found was suggestive of ongoing psychotherapy.

His Honour noted that between May and August 2005 the Plaintiff saw a psychologist on five occasions and that he had reported to the psychologist undergoing treatment ‘for the last eight years for depression’.

His Honour noted that whilst the Plaintiff was at James Cook University he encountered difficulties in completing subjects occasioning the need for special consideration. His Honour also noted that in the Plaintiff's working career there was a pattern of inability to manage the pressures of his work situation and significant periods off between jobs. His Honour found that the Plaintiff’s purported relapse in mid July 2007 was ‘similar to that pattern discernable in his giving up work with various employers since 2003’.3

In assessing the elements of the extension of the Plaintiff's limitation period His Honour noted that the first step in the Plaintiff securing an extension of the limitation period required there to be a right of action. His Honour found that if the Plaintiff’s version of events was accepted then he would have a course of action arising from intentional unlawful conduct. The Defendant argued that the Plaintiff's claim lacked particularity such that the Defendant could not properly respond to the claims at trial. His Honour held:

“The task of meeting the requirement of showing a right of action for the purpose of section 31(2)(b) of the Act is not demanding. Despite the challenge by the Defendant, there is in the material sufficient evidence which if accepted, does link the Plaintiff's personality disorder to abuse which he claims occurred during his childhood and teenage years.”4

His Honour went on to note that the next step in assessing the Plaintiff's entitlement to an extension of the limitation period called for a demonstration that the material fact of a decisive character relating to the Plaintiff's right of action was not within his means of knowledge until after 30 May 2007. His Honour noted that the material fact identified by the Plaintiff was his alleged relapse in July 2007 which was said to have brought him to the ‘realisation’ that he would not be able to continue in his employment in the legal profession.

His Honour again noted that the Plaintiff's ‘realisation’ was not critically different to complaints made to doctors in earlier times in his life. His Honour noted the Defendant’s submission that the Plaintiff had not produced any evidence that his long-term depressive illness had resolved prior to July 2007 or that it would have resolved in the future such that the issue became whether the relapse and the ‘realisation’ was a material fact which was not within the Plaintiff's means of knowledge. His Honour held:

“In the total history the claimed relapse is part of a continuum which is consistent with the medical opinion and the treatment which the Plaintiff received for years prior to July 2007.

The relapse is, in my view, consistent with the psychological or emotional problems which the Plaintiff experienced in the work environment in the years following 2003. In the absence of evidence that such a relapse was an unexpected event, I am unable to find that the incident in July 2007 constitutes a material fact of a decisive character.”5

His Honour went on to find that even if the relapse could be regarded as a material fact the Defendant challenged the assertion that the material fact was not within the Plaintiff's means of knowledge. His Honour noted that the Plaintiff had submitted to therapies and medications related to his psychological condition for most of his adult life and that the condition had affected his capacity to undertake university studies and employment such that the material fact was within the Plaintiff's means and knowledge.

Accordingly, the Court was not satisfied that there was a material fact not within the Plaintiff's means of knowledge and therefore his Application to Extend the Limitation Period failed.

The lesson is, that whilst the test has been weakened, it is not ‘open season’ for Plantiffs relying on this section.