Calder v Uzelac [2003] VSCA 175

5. The parties are brother and sister. The applicant gave evidence in support of her application. She deposed that in 1972, when she was 13 years old and the respondent was 18 years old, the respondent had sexual intercourse with her on four occasions. Her grades at school, which had hitherto been average, thereafter markedly declined until she left school at the age of 15 years. At the age of 17 years the applicant gave birth to a son, who was adopted. The applicant then left Victoria and lived in Western Australia, where she worked in nightclubs and in an illegal casino where she sometimes had sexual intercourse with customers. She formed a relationship with a Japanese seaman and as a consequence travelled to Japan. At the age of 21 the applicant met a Vietnamese man and moved with him to Sydney. The applicant began a beauty salon business in Sydney, but the business failed. The applicant's relationship with the Vietnamese man ended in 1992. Three years later the applicant met her husband, whom she married in 1998. The applicant told a psychologist that her parents separated when she was 11 years old and that her brother died as a result of an overdose of heroin.

8. The applicant returned to Melbourne in 1996 and visited her mother at the house she had lived in when she was assaulted by the respondent. The applicant deposed that "The visits revived my memories particularly on several occasions when John was also present", although she said that her memory was "very dim". The applicant said that after 1996 the events of 1972 played on her mind. She began to have nightmares and realized that she required professional help. She saw Dr Kardaras, a psychologist, in July 2000. She said:

"Until then all I could remember was me standing at home waiting for him to come home to have sex with me. I knew that John has had sex with me when I was very young but I felt guilty as though I had somehow allowed or encouraged him to have sex with me. During the counselling I began to recall all the details ... and realized for the first time that I had been sexually assaulted by John on those occasions. Dr Kardaras brought me to the realization that the assaults were no fault of mine - that I was the victim and should carry no guilt. ... I now believe that, as a result of that childhood abuse by John, my ability to form relationships was affected. ... Until about July 2000 when I was referred to Dr Kardaras I did not remember what had really happened. I did not know that I needed psychological counselling; that my emotional state, my poor performance at school and my inability to form loving, trusting relationships were directly related to John's assault. I also did not know that I had any right to sue for John's assaults. Further, because I had always blamed myself in the past for what had occurred, I did not realize until after the counselling commenced in July 2000 that his actions had been wrongful."

12. In a report tendered to the Court Dr Kardaras said:

"Throughout the course of counselling, Margaret has come to recognize that the alleged sexual assaults that took place were beyond her control and against her will, as she was a minor at the time. This recognition has assisted Margaret to manage her feelings of guilt and helped her to challenge her belief that she was partly responsible for what happened."

Dr Kardaras was of the opinion that psychological testing showed that the applicant was experiencing trauma-related symptoms which were attributable to the sexual assaults by the respondent. A psychiatrist, Dr Wahr, in a report tendered in evidence said:

"Mrs Calder is suffering from a personality disorder with anxiety and a tendency to depression but depression was not present today, although I believe that this lady has been depressed quite a lot of time in the past."

In a draft statement of claim the applicant's injuries were alleged to include "assaults leading to a personality disorder with anxiety and a tendency to depression" and "post-traumatic stress disorder and/or personality disorder".

19. Section 23A provided that the court might in its discretion extend the period for bringing an action for damages for personal injuries caused by a breach of duty where it appeared to the court that any of the material facts relating to the cause of action was not known to the claimant and would not have been known to the claimant if she had taken all reasonable steps in the circumstances of the case to ascertain the material facts until a date later than two years after the cause of action accrued or, if the claimant was under a disability when the cause of action accrued, two years after the claimant ceased to be under the disability, whichever last occurred, and there was evidence to establish the cause of action apart from any defence founded on the expiration of the period of limitations. "Material facts" included "the extent of the personal injury ...".

22. The applicant contended on appeal that the material fact not known to her was the extent of her injuries. At first instance the applicant had contended that she had been ignorant of other material facts, but on appeal limited her case in the light of the findings of fact by the trial judge.

25. In refusing the application the County Court judge said:

"I have some difficulty in accepting that at least some symptoms of the plaintiff's claimed condition have not been known to her down the years. Nor do I understand why, given the persistence of her concerns from 1986, or even 1996 or 1998, that she could not reasonably have been expected to consult a medical practitioner about such problems as she thought she had. It cannot be said, I think, that she is a person without experience in medical conditions. Indeed it would seem that she has had more than her fair share of health problems. Thus she has suffered from pelvic inflammatory disease since her 20s and for which she has required operative treatment, she has been a chronic pain sufferer for years, has had a hysterectomy with complications, and more recently a total jaw reconstruction .... Accordingly in my view she at least knew of some of the symptoms said to constitute `an injury' if that it be, before the year 2000. And I do not see why she might not otherwise have addressed the matter at an earlier stage."

His Honour went on to say that if he was wrong in concluding that the applicant had failed to establish that there were material facts unknown to her which would not have been known to her if she had taken reasonable steps to ascertain them, in the exercise of his discretion he would have refused the application because of

"the difficulties in untangling the cause and effect of what might be called traumatic events in the plaintiff's life and their relation to the reports of the two doctors, and the inordinate length of time that has passed since the alleged assaults, namely some 29 years ..."

31. In Commonwealth v. Dinnison[1] the Full Court of the Federal Court held that a man exposed to radiation as a result of his presence at nuclear tests carried out at Maralinga, who was aware that he was anxious, uneasy, troubled and concerned about his exposure, but did not know that his anxiety amounted to a psychiatric illness, was unaware of the extent of his injuries until his illness was diagnosed. Similarly, in Donnelly v. State of Victoria[2] O'Bryan, J. extended the time for bringing proceedings by a woman who was aware of her symptoms, and "knew that she was sad, given to weeping, feared crowds, felt embarrassed about her appearance, felt that she did not `fit in' and became distressed when she thought about her childhood and ill-treatment" but "was quite ignorant .. that she was mentally sick or had sustained personal injuries in the nature of mental disorders until 1992 when she saw Dr Byrne."

34. Counsel for the applicant relied upon the distinction drawn in those cases between knowledge of symptoms and awareness that the symptoms amounted to psychiatric illness or personality disorder. The trial judge appears to have accepted that the applicant was unaware of the extent of her injuries in this sense, for he said that the applicant knew of "some" of the symptoms of what were claimed to be her injuries, and refused the application because the applicant failed to take all reasonable steps to ascertain the extent of her injuries, for he said that he did not understand "why, given the persistence of her concerns from 1986, or even 1996 or 1998 that she could not reasonably have been expected to consult a medical practitioner about such problems as she thought she had."

37. The test to be applied to determine whether a claimant has taken all reasonable steps to ascertain material facts is "an objective test to be applied to a person in the position of the claimant and with his background and understanding."[3] The background and understanding of the applicant which the trial judge thought relevant was her experience of medical conditions for which she had received treatment. I think there is substance in the contention by the applicant's counsel that his Honour erred in failing to distinguish between physical and psychological injuries. The applicant's prior experience was confined to bodily ailments. It is one thing to know that physical pain or discomfort constitutes illness that can be alleviated by medical treatment; it is another to realize that states such as anxiety and difficulty in forming and maintaining relationships with other persons and events such as nightmares may amount to mental disorder or illness that can be treated by psychiatrists and psychologists.

40. Another relevant aspect of the applicant's background was the shame she felt for what she thought was her responsibility for the respondent's actions. Her shame may have played a part in the applicant's failure to seek professional help until July 2000. His Honour appears not to have considered the matter in the context of the question whether the applicant had taken all reasonable steps to ascertain the extent of her injuries, although earlier in his reasons he had said that prior to seeing Dr Kardaras the applicant "kept quiet about her perceived problems and the assaults because she felt inter alia partly responsible for them and experienced guilt in regard to them."

43. In my opinion, the trial judge erred in concluding that the applicant had failed to take all reasonable steps in the circumstances of the case to ascertain the extent of her psychological injuries. Nevertheless, in my opinion, an order extending time should be refused in the exercise of the Court's discretion.[4]

46. The events upon which the proposed cause of action is based are now 31 years in the past. The applicant subsequently underwent a number of experiences which may well have played a part in the formation of the symptoms which the applicant now wishes to ascribe solely to the actions of the respondent.

49. Counsel for the applicant criticized the trial judge for referring to "the difficulties in untangling the cause and effect of what might be called traumatic events in the plaintiff's life and their relation to the reports of the two doctors ...". He submitted that the relevant inquiry was as to knowledge of the extent of injury, not its fact. In making the impugned statement, however, his Honour was not dealing with the question of the conditions which the applicant was required to establish, but with the exercise of his discretion to refuse to extend time notwithstanding that the conditions had been satisfied.

52. In my opinion, the passage of time has significantly eroded the prospects of the Court ascertaining the mental condition of the applicant over the last three decades and identifying the respondent's actions as the cause of those aspects of her mental condition now said to constitute injuries sustained as a consequence of the respondent's wrongdoing. Dr Wahr said that in his opinion "at least half of the personality disorder" suffered by the applicant was "due to her brother's sexual actions". Dr Wahr did not state any reasons for his opinion. He did say that the applicant had "led a chequered life" and had "experienced a great deal of lack of stability and structure as a result of the experiences she had in earlier life". The lapse of time will render it very difficult, if not impossible, to obtain evidence of the apparent effect upon the applicant of the respondent's actions and the other traumatic events in her life at the time those events occurred. I doubt that a court could now properly evaluate the accuracy of Dr Wahr's opinion.

55. Counsel for the applicant contended that the applicant could have initiated proceedings as late as 1979 and yet within the period of limitations, and by that date the majority of traumatic events in her life had already occurred. While it may well be the case that the respondent would have experienced difficulty in meeting a case of this nature commenced in 1979, the effluxion of time since then must have compounded the difficulty. As Toohey and Gummow, JJ. said in Brisbane South Regional Health Authority v. Taylor:

"A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired."[5]

59. For the foregoing reasons, I consider that there is now a significant risk that there cannot be a fair trial of the applicant's claim. Accordingly, I would refuse leave to appeal.

69. Buchanan, J.A. has shown that the learned judge who heard the application erred; and that in the circumstances the discretion conferred by s.23A of the Limitation of Actions Act[6] must be exercised. Counsel asked this Court to exercise that discretion if the occasion for its exercise arose. The Court should do so. In that connection I mention two matters which seem to me to be of particular importance.

72. The applicant swore an affidavit in support of the application; and was cross-examined. The Court was told from the bar table that she was not cross-examined at all about the alleged assaults; nor about later conversations which she deposed she'd had with her brother about the assaults. The respondent did not go on affidavit. The judge who heard the application considered that the respondent's failure to respond - presumably to deny the allegations - was at least in part explicable by the fact that the applicant had made a statement to the police but that no charges had yet been laid. In my respectful opinion that conclusion was not available. The only

circumstance in which failure to respond would be explicable was if the respondent would have been obliged to admit the assaults. If the respondent denied their occurrence, what had he to fear from so deposing? Alternatively, if the respondent had claimed to be unable to recall whether or not the alleged assaults had taken place - which seems very unlikely - why should he not have so deposed?

76. In the circumstances which I have described, I consider that in exercising the residual discretion this Court should approach the matter on the footing that the question whether the applicant had in fact been the victim of serious assaults by her brother was not shown to be a probable issue on a trial. I consider that circumstance to be a substantial one tending in favour of an exercise of discretion in the applicant's favour.

79. On the other hand, if time was extended, and a proceeding commenced, it must surely be very difficult at trial to determine whether any psychiatric or psychological condition from which the applicant was suffering when she was treated in 2000 by the psychologist, Dr Kardaras, or when examined in 2001 by the psychiatrist, Dr Wahr, could be causally linked to the respondent's conduct; let alone to determine whether the applicant had suffered psychiatric or psychological disability in years past, and whether, if she had, that had been causally related to such conduct. That would be so because of the great elapse of time, the interposition of other stressors, and the absence of relevant medical consultations. It is no adequate answer to such difficulties to say that the other stressors mainly occurred in the period within which the applicant could have commenced an action without obtaining an extension of time.

82. The difficulties to which I have just referred cannot be said to be simply forensic difficulties which the applicant would confront at trial. They bear on the question whether in all the circumstances a fair trial could be had, a question of importance in the exercise of the residual discretion.

85. I am conscious of the fact that on the hearing of the application the respondent did not rely upon any psychiatric or psychological report generated by examination of the applicant on his behalf. That may be said to gainsay a conclusion that the difficulties to which I have adverted were either real or substantial. But the reports upon which the applicant relied, in my opinion, sufficiently disclose the reality and substance of such difficulties. They are, I think, really emphasised by the diagnoses made by Drs Kardaras and Wahr - as I read them, they did not wholly coincide - and by the language of Dr Wahr's estimate of the extent to which the respondent's impugned conduct was causative of the personality disorder which he diagnosed was present.

88. In my view, the question whether in all the circumstances the Court should exercise its discretion in favour of the applicant is not easily answered. There are definitely considerations which pull in opposite directions. In the end, I have concluded that those which tell against an exercise of discretion predominate. The second matter that I have identified is important in that connection. I therefore agree that leave to appeal should be refused.

[1] (1995) 56 F.C.R. 389.

[2] Unreported, Supreme Court of Victoria, 30 June 1994.

[3] Hamet v. Connor [1980] VicRp 51; [1980] V.R. 538 at 541 per Crockett, J. See also McManamny v. Hadley [1975] VicRp 70; [1975] V.R. 705.

[4] See Brisbane South Regional Health Authority v. Taylor [1996] HCA 25; (1996) 186 C.L.R. 541.