Cranbrook School v Stanley

CITATION : Cranbrook School v Stanley [2002] NSWCA 290 FILE NUMBER(S) : CA 40065/02 HEARING DATE(S) : 21 June 2002 JUDGMENT DATE : 2 September 2002

PARTIES : Cranbrook School (Appellant) Garth Stanley (Respondent) JUDGMENT OF : Meagher JA at 1; Heydon JA at 2; Hodgson JA at 86

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8411/99 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

COUNSEL : Mr M Walton SC (Appellant) Mr C R R Hoeben SC/Mr P G Mahony (Respondent) SOLICITORS : Riley, Gray-Spencer (Appellant) Maurice Blackman Cashman (Respondent) CATCHWORDS : Tort - negligence - duty of care - personal injury - whether school "responsible for the care and welfare" of boarding students - in what sense school so responsible - absence of evidence directed to standards which should have been adopted by school - Limitation of actions - Limitation Act 1969 (NSW) - extension of limitation period - whether appropriate in particular circumstances - relevant considerations - ND LEGISLATION CITED : Limitation Act 1969 (NSW) Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 CASES CITED: CRA Ltd v Martignagno (1996) 39 NSWLR 13 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 O'Brien v O'Brien (1995) 35 NSWLR 664 Scarcella v Lettice (2000) 51 NSWLR 302 DECISION : See paragraph 85

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40065/02 DC 8411/99

MEAGHER JA HEYDON JA HODGSON JA

Judgment 1 MEAGHER JA: I agree with Heydon JA. 2 HEYDON JA: This is an application by an unsuccessful defendant for leave to appeal against an order made by Gibson DCJ on 14 December 2001 extending the time within which to commence proceedings to 14 December 2001. 3 The application for leave was heard concurrently with the appeal, and full argument was advanced, to the intent that if leave were granted the appeal could be decided without additional argument.

The background 4 The opponent was born on 16 December 1974. He was a pupil of the claimant's in the years 1987-1992. On 11 August 1999 he filed a Notice of Application to Commence Proceedings in which he sought an extension of the limitation period. That order was made on 27 October 1999 by Christie DCJ. Despite the fact that the claimant was given prior notice of that hearing, as was its liability insurer, FAI Insurance Ltd, the claimant did not attend. Indeed, the unsatisfactory conduct of the liability insurer, which had the carriage of the claimant's defence of the case, did not stop there. In a passage of which the claimant voiced no criticism, the primary judge said: "After the order extending time was made, the defendant filed a defence (which did not plead any defence under the Limitations Act ) and arranged a medical appointment for the plaintiff with a psychiatrist. That report has never been served. During 2000 the matter came up for call over and the defendant was invariably unready. On 18 July 2000 Registrar Howe noted the defendant was not ready. The defendant was ordered to show cause and this application was stood over on various dates until 24 April 2001, when the insurer changed. The defendant then brought an application to vacate the orders of Judge Christie of 27 October 1999." 5 On 19 July 2001 a District Court judge vacated the order made on 27 October 1999. The evidence relied on before that judge and the reasons of that judge for vacating the order are not in the papers. No appeal against the order vacating the 27 October 1999 order is before this Court. It does seem regrettable that the opponent's hopes were raised by the order of 27 October 1999 only to be disappointed by the order of 19 July 2001. It seems that the responsibility for this state of affairs lay with the claimant's liability insurer rather than with the claimant itself. However, whether it is regrettable or not, the opponent's Notice of Application had to be reheard. The primary judge reheard it on 22 November 2001. She reserved judgment until 14 December 2001, when she made the orders complained of (including costs orders which were favourable to the opponent because of the events just described).

The opponent's Statement of Claim 6 On 9 November 1999 the opponent filed a Statement of Claim pursuant to the order of 27 October 1999 extending the limitation period. It was as follows. "1. At all material times the Defendant is a company incorporated in the state of New South Wales and entitled to sue and be sued in its corporate name and style. 2. At all material times the Defendant operated a secondary education institution. 3. During the period from 1987 to 1993 the Plaintiff was and remained a student of the Defendant and was therefore in the custody and care of the Defendant and the Defendant thereupon became the guardian/custodian of the physical, moral and spiritual welfare of the Plaintiff. 4. Throughout the course of the year 1998 [sic] the Plaintiff was subjected to obscene and/or indecent and/or gross and/or gratuitously violent acts of abuse of a physical and/or sexual and/or psychological nature. In particular: (a) On two occasions in the first term of 1998 [sic] the Plaintiff was in the shower receptacle at the Defendant's premises when a fellow student … physically touched the Plaintiff in a sexual manner. (b) In 1998 [sic] the Plaintiff was asleep in the boarding house dormitory and was physically assaulted by [the fellow student]. As a result of the matters aforesaid the Plaintiff has suffered injury, loss and damage. The Plaintiff has suffered the injuries as a consequence of the negligence of the Defendant. Particulars of Negligence of the Defendant (a) Permitted children in its care to be assaulted and/or psychologically abused. (b) Failed to act upon suspicions or knowledge of evidence that [the fellow student], who was responsible for the care and welfare of the children had performed acts of abuse on certain other students. (c) Failed to react appropriately to evidence and/or complaints that [the fellow student] was occasioning acts of abuse on students such as the Plaintiff. (d) Failed to act upon evidence and/or complaints that [the fellow student] was occasioning the acts of abuse on certain students including the Plaintiff at the school. (e) Failed to investigate adequately or at all to evidence and/or complaints that [the fellow student] was occasioning the acts of abuse on certain students including the Plaintiff at the school. (f) Concealing from: (i) NSW Police Department; (ii) NSW Education Department; (iii) NSW Department of Welfare; evidence and/or complaints that [the fellow student] was occasioning the acts of abuse on certain students including the Plaintiff. (g) Failed to remove [the fellow student] who was occasioning acts of abuse on certain students including the Plaintiff at the school. (h) Failed to institute any or any proper system to monitor the conduct of the behaviour of [the fellow student] who the Defendant knew had permitted [scil committed] acts of abuse on certain students including the Plaintiff at the school. (i) Permitted a situation at the school in which the children including the Plaintiff lived in an environment of fear and/or terror. (j) Failing to adopt any proper system to ensure that the abuse did not occur. (k) The Defendant took no steps to advise the Plaintiff of his legal rights regarding the acts of abuse and/or to arrange for the Plaintiff to receive independent legal advice and/or counselling relating to the acts of abuse. (l) Prevented the Plaintiff from speaking with his parents, members of the police force, and another person in respect of the acts of abuse. 6. Further or in the alternative, the Defendant was in breach of its fiduciary duty of lico parentas [sic] and/or as guardian of the Plaintiff. Particulars (i) The Defendant during the period took no or no adequate steps to protect the Plaintiff from acts of abuse. (ii) The Defendant took no steps to advise the Plaintiff of his legal rights regarding the acts of abuse and/or to arrange for the Plaintiff to receive independent legal advice and/or counselling relating to the acts of abuse. (iii) Prevented the Plaintiff from speaking with his parents, members of the police force, and another person in respect of the acts of abuse. 7. And the Plaintiff claims damages, costs and interest pursuant to s 83A of the District Court Act." 7 The following Statement pursuant to Part 9 Rule 27 was filed: "1. Antecedents: Date of Birth: 16 December 1974 2. Particulars of Injuries: (a) Post traumatic stress disorder. (b) Distress. (c) Nervous shock. (d) Depression and associated psychological overlay. 3. Particulars of Disabilities: (a) Emotional distress. (b) Anxiety. (c) Tension. (d) Isolation. (e) Insomnia. (f) Fear. (g) Confusion. (h) Guilt. (i) Lack of trust. (j) Uncertainty of the future. (k) Reduced concentration. (l) The Plaintiff has been restricted in a wide variety of work, sports, social and hobbying activities. 4. Particulars of Out of Pocket Expenses: The Plaintiff has incurred and continues to incur out of pocket expenses full details of which shall be supplied prior to trial. 5. Particulars of Economic Loss: The Plaintiff has been restricted in his ability to earn on the open labour market and claims in respect of a diminution of earning capacity." 8 Leaving aside formal imperfections in the Statement of Claim, it may be said of both it and the Part 9 Rule 27 Statement that, given the seriousness of the allegations against both the claimant and the fellow student, there are grave deficiencies in point of detail, and there are also wholly improbable contentions. In what sense was the fellow student "responsible for the care and welfare of the children"? What "acts of abuse on certain other students" were there? What "evidence and/or complaints" did the claimant have notice of? A further feature of the Statement of Claim is that it appears to complain of two distinct sets of conduct on the part of the claimant: conduct before the incidents alleged in paragraph 4, and contact after those incidents. Thus within the particulars of negligence, particulars (a)-(e), (g)-(j) and perhaps (f) appear to complain of the claimant's failure to prevent the incidents arising, and particulars (k)-(l) and perhaps (f) appear to complain of the claimant's failure to assist the opponent properly after the incidents had occurred. Finally, vague though the Part 9 Rule 27 particulars are, they convey an impression, particularly in relation to economic loss, which is at variance with the evidence filed.

The legislation 9 The opponent's Statement of Claim complained of "injuries", and the particularisation of them in the Part 9 Rule 27 Statement revealed that the allegations were allegations of personal injury. 10 Since the injuries complained of arose out of three alleged incidents while the opponent was at the school in 1988, at a time when he was in his fourteenth year, the relevant legislation to be considered by the primary judge was the Limitation Act 1969, ss 14, 18A, 52(1), 60A, 60B, 60C and 60E(1), together with Schedule 5 clause 4(1) and (4). All that legislation was also relied on by the opponent in written submissions to this Court, and though senior counsel for the opponent declined to speak to the written submissions, and said he was "not going to say a word about it", he did not abandon them. He said he would "leave the written submissions where they stand so your Honours can make a decision". Although counsel's shrinking from the written submissions in relation to s 60C is understandable, it remains necessary to deal with them. 11 Section 14(1)(b) provides: "(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six 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: … (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty." 12 Section 18A(1)(b) and (2) provide: "(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to: …

(b) a cause of action that accrued before 1 September 1990. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 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." 13 Section 52(1) 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." 14 Section 60A provides: "The purpose of this Subdivision is to provide a procedure for a 5 year (maximum) extension of the 3 year limitation period for personal injury cases. It applies to causes of action that accrue on or after 1 September 1990." 15 Section 60B provides: "This Subdivision applies only to causes of action that accrue on or after 1 September 1990." 16 Section 60C provides: "(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 . (2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 17 Section 60E(1) provides: "(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay, (b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, (c) the time at which the injury became known to the plaintiff, (d) the time at which the nature and extent of the injury became known to the plaintiff, (e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission, (f) any conduct of the defendant which induced the plaintiff to delay bringing the action, (g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received, (h) the extent of the plaintiff's injury or loss." 18 Section 60F provides: "The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date." 19 Section 60G provides: "(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 . (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 20 Section 60I(1) provides: "(1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)--(iii)." 21 Schedule 5, clause 4(1) and (4) provide: "(1) Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (4) The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, if an application for such an order is made within: (a) the period of 3 years referred to in section 60I, or (b) the period of 3 years commencing on 1 September 1990."

The irrelevance of s 60C and s 60E 22 If the opponent's cause of action had accrued before 1 September 1990, there would have been a six year limitation period, because of ss 14(1)(b) and 18A(1)(b), and ss 60A and 60C would not apply because of s 60B. But if the cause of action had accrued after 1 September 1990, then there would have been a three year limitation period: s18A(2). The running of the limitation period would have been suspended until the opponent obtained his majority on 16 December 1992. Sections 60A, 60C and 60E would have applied, but would only have permitted a five year extension of the three year limitation period, ie up to 16 December 2000. The opponent contended in writing that the cause of action did not accrue until 16 December 1992: "Opponent's Arguments" B paragraph 4. The opponent also contended that there was a six year limitation period ("Opponent's Arguments in A para 1.4"). 23 Contrary to what is said in the opponent's written submissions, the correct position is as follows. 24 The opponent's cause of action is in negligence. A cause of action in negligence is complete - "accrues" - when the victim suffers actual damage, as distinct from damage which is only negligible, non-measurable, prospective or contingent: Scarcella v Lettice (2000) 51 NSWLR 302 at [13]-[14]. The cause of action accrued in 1988: either at the moment of the third incident complained of (since the other two by themselves do not appear to have caused any damage), or soon afterwards, in consequence of the claimant's alleged failure to assist the opponent. The cause of action accrued even though the running of the limitation period was suspended until 16 December 1992 by reason of s 52(1). It was open to the opponent to have sued the claimant at any time from, or very soon after, the time of the third incident. It would have been necessary for a tutor to have been appointed pursuant to Part 45 of the District Court Rules, but the proceedings would have been the opponent's proceedings in reliance on injuries to the opponent. The suspension of the running of the limitation period prevented time running against the opponent during his minority, but that did not postpone or suspend his right to start proceedings: O'Brien v O'Brien (1995) 35 NSWLR 664 at 666. 25 The limitation period was six years: s 18A(1)(b). That six year period ran from 16 December 1992 and hence expired on 16 December 1998. The avenue for extension of that limitation period afforded by ss 60A, 60C and 60E is not available since those sections only apply to causes of action accruing after 1 September 1990: s 60B. 26 Hence the only available avenue of extension of the limitation period is that afforded by ss 60G and 60I. The avenue of extension they offer is available so long as the application was made within three years of the opponent becoming aware of the s 60I matters. This means that the application had to fail unless the opponent established that he did not become aware of one of the matters described in s 60I(1)(a) until after 16 December 1998 and his application was made within three years of the moment when he became aware, or ought to have become aware, of all the matters described in s 60I(1)(a). The event on which the opponent relied as giving him the necessary awareness was a report by Dr Morse dated 6 April 1999; and he contended that it was not the case that he either became aware, or ought to have become aware, before that date. 27 In consequence of those conclusions, it is not necessary to deal either with the primary judge's reasoning in relation to s 60C or with the opponent's arguments about s 60C.

The opponent's affidavit 28 Before turning to the claimant's criticisms of the primary judge's reasoning in relation to ss 60G and 60I, it is convenient to set out the material parts of the affidavit of 9 August 1999 relied on by the opponent in support of his application. "1. I am the Plaintiff. 2. I was enrolled to commence studies at the Cranbrook School in Victoria Road, Bellevue Hill from the beginning of January 1987. I started from Year 7 as a boarding student. 3. In the first term of 1988 whilst I was in the shower at school a fellow student … brushed against me. At the time I was not wearing any clothes and nor was he. This experience made me feel uncomfortable. The same situation occurred approximately one week later. [The fellow student] did not say anything to me at the time. 4. Later in the year, I was asleep in my bed in the boarding house dormitory and I was woken as a person had their hand on my testicles. As soon as I became aware of this, I screamed and the person walked quickly out of the dormitory. 5. The boarding master … came to the room and I explained to him what had occurred. [The boarding master] told me and the other students in the dormitory to quieten down and then turned to me and said words to the effect, 'wait here'. 6. A short while later [the boarding master] returned to the dormitory with two police officers who I understood to be stationed at Rose Bay. 7. The officers identified themselves to me and then obtained my consent to take a statement in front of [the boarding master]. At the time they took a statement from me one of the officers recorded the details in his notebook. 8. After the police left, [the boarding master] spoke with me in the dormitory and said to me, 'the police think that it was somebody from inside the house because there was no break and enter'. At this time I was still in a great deal of shock about the incident. I was sitting in my bed with my legs pulled up. [The boarding master] directed me to go to sleep. I said to him, '… I am unable to sleep, can I have a shower?' I was given approval to have a shower by [the boarding master]. 9. The next day I was called into [the boarding master's] office. He said to me, ''who do you think did this?' I replied that I believed that I knew who it was and gave him the name of the student who I believe had assaulted me. [The boarding master] then left the room and brought back another student with him. … [The boarding master] asked [the other student] who he thought the person was that had assaulted me. [The other student] replied that he believed that it was the same student that I had indicated to [the boarding master] as being responsible. [The boarding master] then said to me, 'Okay, we will deal with it from here, I don't want to hear any talk about this around the school until it is resolved'. [The boarding master's] comments made me feel that it would be wrong to discuss what had occurred with any other person. 10. At the time I was assaulted the student who I believe was responsible was in Year 9. He was known in the dormitory as being a trouble maker and bully. I was physically afraid of that student. 11. Several days after the assault occurred I was asked to attend the officer of the headmaster … . At that time he said to me, 'Garth, this is a very serious matter and I want you to think about whether you believe that it was [the fellow student]'. I told [the headmaster] that I believe [sic] that it was. [The headmaster] then said, 'Okay, thank you'. I then left his office. 12. I was extremely upset about the assault. I did not tell my parents what had occurred as I was embarrassed and I was afraid that if I told my parents about what had occurred they would believe that it was my fault. 13. The assault was never discussed with me by any other teacher at the school. 14. About two weeks after the assault occurred I walked into the dormitory after lunch and noticed the [fellow] student's locker had been cleared out and all his personal effects were gone. I did not see the [fellow] student after that time. … 15. About one week after the assault, I approached [the boarding master] outside his office. I said to him, '… is anything happening about what happened last week?' He said to me, 'We'll discuss this at a later date'. As soon as he had finished saying that, he walked away. 16. I felt guilty about being assaulted and was too embarrassed to discuss the incident with anybody. At no time was I ever offered any counselling or medical assistance by the school and other than the conversations referred to above, I have not discussed the matter with any other student or Master while I was a pupil at the school. 17. I matriculated from the school in 1992. 18. After the student left the school I continued to suffer from fear, anxiety and depression. I would wake up from sleep screaming and quite often I would be under my bunk in the dormitory. I was scared that I would be assaulted again whilst I was asleep. 19. About two years ago I spoke with [W] who was a student with me at Cranbrook. He said to me, '[The fellow student] has pressed charges against [X]'. I understood that he was referring to a tutor who was employed by the school when we were students. He then said to me, 'I had to be a witness and [X] was convicted and put in gaol'. 20. After this situation, I thought about the assault much more frequently. I was very angry that [X] had assaulted [the fellow student] and I felt that the other Masters must have known what had occurred. It made me very angry that no action was taken to prevent these assaults occurring. I also felt sympathy for [the fellow student]. 21. After this conversation I would think about the assault daily. I felt depressed and guilty. I felt that I had been tricked by the school and was very angry that nothing was done at the time and that I was unable to do anything to help [the fellow student] or resolve what had occurred. 22. After I had spoken with [W] I had a conversation with my parents about the assault. They told me that they had not been informed that the assault had occurred. 23. I am advised by my solicitors that a claim for damages is required to be lodged within three (3) years of my eighteenth birthday. Prior to receiving this advice, I was not aware that a time limit existed. I have not been a party to any other civil proceedings. 24. Annexed hereto and marked with the letter 'A' is a medical report of Dr P Morse dated 6 April 1999."

Dr Morse's report 29 Dr Morse's report is addressed to solicitors then acting for the opponent, who were the solicitors who filed the Notice of Application dated 11 August 1999, but who were not the solicitors acting in this Court. "Thank you for referring Mr Stanley for a psychiatric report and opinion in relation to a sexual assault which he said occurred in 1988 when he was aged fourteen at Cranbrook School. Assault and Subsequent Progress Mr Stanley said that he was a boarder at Cranbrook School in Year 8 when he was woken at 4.00 am with someone grabbing him in the genital area. He was shocked. He said he woke up screaming and frightened, the assailant suddenly left and Year 12 students who were in charge of the dormitory ran in. He said he thought he saw another student [ie the fellow student] leaving and other people thought also that this person had run out. He was shocked and upset. The Housemaster and the Principal interviewed him but nothing more was done. He said he feels that it was [the fellow student] and a month later this student was expelled. He doesn't know what the circumstances were. He was worried and upset about this and although he was pretty sure this was the person who ran out of the room, he is concerned that he may have been mistaken. The fact that this boy's brother was in his year also caused tension and distress. He continued to be very frightened and concerned at night. He said he was sleeping on the floor underneath the bunks. If he heard noises he would wake up and scream. He said he and other students set up mazes with lockers in the room. He said if he heard any noise at night he would start screaming but was never attacked again. He said he was told by school authorities not to talk about it and he kept calling out at night and this distress at night continued for some time. He spoke of things settling down over time though it always affected his attitude towards the school, he eventually got his HSC and left and did a marketing course and played first grade rugby for Easts Rugby Club but had a knee reconstruction and had to discontinue his football career though he coaches a junior Easts team at present. About two years ago the [fellow student] brought charges against one of the school teachers and the teacher got out on appeal. He was contacted after this case by a person from Brunei who was a pupil at the school who had also been expelled in Year 10, saying that he was going to press charges against this teacher. He said the teacher has not been found. This brought up the memories of his own experience and caused him to be tense and agitated and depressed when thinking of [the fellow student] and perhaps that [the fellow student] did what he did because of what happened to him and also uncertainties about whether or not it was [the fellow student] and this caused him to be upset. He has continued to be emotionally upset and distressed over the last two years. Emotional Symptoms and State He described being emotionally disturbed for two years after the assault (he was fearful when describing this) and it seemed to settle down until about two years ago when the matter of the teacher as described above came to the fore. He said he had a tremendous feeling of guilt that he got [the fellow student] into trouble and he has been brooding about this over the last two years. He said he gets worried that [the fellow student] will somehow seek revenge on him. He heard that [the fellow student] took up truck driving and he feels that maybe he changed his life and has feelings of guilt and was upset and distressed when describing this. He is worried about what [the fellow student] thinks of him. He said he believes because of what he did, ie Mr Stanley, that [the fellow student] has been labelled as a 'sex offender'. It has always been on the back of his mind but over the last few years with brooding and thinking about what happened, being upset by the incident itself and concerned about [the fellow student] and wondering and being puzzled about the actions of the school teacher in question it has come to the fore and he has become upset and crying a lot and doesn't know why. He described being down and depressed and sad and worried about it. He said 'I feel guilty' and has a sense of inadequacy. He has a feeling of not wishing to be involved with people. He said it has 'destroyed my sense of confidence' (he cried and was very upset when talking about this). He has suffered sleep disturbance over the last two or so years, difficulty getting off to sleep and waking up at night and has had dreams of incidents similar to that he experienced. He said the incident and subsequent events 'destroyed' his memories of his childhood and he can't think of the good things of childhood now and although he speaks of the good things that Cranbrook did for him, he can't think of those things and just thinks of the incident and the way it was handled. He said he was told to tell no-one and didn't tell his parents until two months ago. The Housemaster and the Principal of the school 'did nothing' and all this makes him depressed and gives him a feeling of being 'useless'. He is not as enthusiastic, not as motivated or driven as he was. He said he always wanted to help others but now he doesn't feel like doing things. He is not angry or irritable. He said he smokes when he drinks. He drinks alcohol once sometimes twice a week and on occasions 'too much'. He doesn't take other drugs. He said he has trouble trusting people especially older men. At the same time he feels there is something wrong with him and he feels 'guilty'. He is less wanting to get involved in relationships now. He described low self-esteem and lack of self-confidence. This has been particularly so over the last two years. Employment and Activity He felt that he couldn't work for anyone and so he started his own legal investigation business and this is going well though he feels his work has been affected because he gets distracted easily and can't concentrate. He feels he has to do everything for himself and has problems in giving work to others and delegating and has to do something about this and this seems to be made worse. He spends most of his time in the Eastern Suburbs, he coaches a junior rugby team and goes out with friends and said he has a full social life though has less enthusiasm about this lately. Family and Social Situation He lives with his mother and father at Bayview. He has an older brother and sister and said he gets on well with his parents. He said they knew nothing about this and he was told to tell no-one and he feels betrayed by this, as though he was made to feel alone and isolated so he wouldn't take any action. His parents were distressed when they found out and they have always been supportive and helpful of him. He gets on well with his brother. He has had lots of girlfriends but doesn't seem to feel confident at this time to develop a full-time relationship because of the way he feels and uncertainty of his future. Past Health and Development No other assaults, no accidents or injuries. He had a knee reconstruction due to a football injury, no other major accidents or injuries, no major illnesses, never suffered from or treated for emotional or mental disorder. He said he was picked up for drink driving when he was younger and was charged with causing damage to a vehicle when he said he was swerved at in a parking station at North Sydney and he hit the car. He feels this was unjust that he was the one who was charged, given what happened. No other forensic problems. He described no other crises, problems or difficulties in his life. Mental State and Examination At interview he presented as a tall man who looked younger than his stated age. He was in no particular distress and no physical abnormalities were apparent. He was friendly and outgoing and co-operative. He seemed anxious to talk and to tell his story and expressed distress at the emotional state that he experienced over the last two years. He became agitated and tense when describing what happened and was very tearful, almost to the point of lacking in control at some stage and he said he could not explain why this was so. When I asked why he was so upset and distressed he said 'I don't know' though later on he said 'I say I don't know but I do know' and although he had difficulty explaining this he said it was because he was upset about what happened at school and because of the concern at the distress he would have caused [the fellow student] and to some extent his fear of [the fellow student]. However, he went on to say he has a feeling of confusion, a lack of confidence and uncertainty about his future. He said he is worried about the effect it had on his life and concerned at what's going to happen. He spoke at length about not wanting to take action because he believed that Cranbrook School had done a lot for him in establishing his self-confidence and helping him establish his rugby career and he made a lot of good friends. On the other hand he is distressed and upset that what happened to him and he thinks others was swept under the carpet and he was made to feel isolated and alone and without support He thought very seriously about taking this action but he thinks it needs to be done. He is worried about the effect on [the fellow student] of the particular teacher getting off on appeal and he is also concerned about what happened to the man from Brunei. Opinion Mr Stanley would have suffered quite marked emotional distress at the time of the incident and immediately after the incident. He would have experienced quite marked anxiety, tension, feelings of depression, isolation and fear which is both realistically based and would have been part of a post-traumatic stress disorder at that time from what he described of his symptoms. His feeling of fear, tension and many other symptoms would have been made much worse by the fact that he was told not to tell anyone, that no particular investigations or examination of the situation were made, that apparently the Police were not informed and most importantly his parents were not informed. Thus as a fourteen year old he really had to deal with it alone and this would have been a devastating experience for him. He took quite drastic action with the aid of other students of setting up barriers with beds and bunks and lockers but slept for at least two years in a state of perpetual fear, waking up screaming and upset and senior boys and the Police were called on occasions. Obviously he experienced quite marked emotional distress at that time, made worse by what he claims was the somewhat off-hand neglectful attitude of the school but in particular of being told not to talk to anyone and he not having the support and comfort of his parents. He mentioned he has received no counselling of any sort, either then or now. In your letter of February 10, 1999, you asked specifically whether counselling and other psychological assistance shortly after the assault would have assisted him. I have no doubt that if he received general and particular support from the school authorities, his family had been involved, there had been discussions about what happened, trying to ensure that his and others' security and safety was protected, and some investigation carried out, he would have been at that time emotionally much more settled. Some form of counselling should have been offered and would have assisted him at that time in settling down the quite marked fears anxieties and depression he experienced then. Also at that time he was distressed that because he and apparently others named [the fellow student], this boy was expelled. At the time he felt safer that he was expelled but felt even then that proper processes hadn't been carried out. So the combination of the expulsion due to his statements and some guilt about this, together with the attitude of [the fellow student's] brother who was in his class, was a cause of distress to him at the time. What has caused his current feelings of anxiety, depression, guilt and responsibility has been the exposures over the last two years of the court actions against a teacher by [the fellow student]. As he himself said, this has given rise to a whole series of emotional reactions which are complex and difficult to explain. However, the mere fact that [the fellow student's] name re-appeared within his consciousness, especially in these circumstances where there are allegations of an adult sexual predator in the school, is a cause of distress to him with a feeling of confusion as to who committed the assault on him and the effect that it all had on [the fellow student]. Thus he has had quite marked feelings of anxiety and depression stemming from revival of the feelings and distress associated with the incident and feelings of guilt and responsibility and fear in relation to [the fellow student]. There is no doubt that the way he perceives the school authorities handled the matter at the time contributed to his present distress. Thus he is still unsure of what the circumstances were that led to [the fellow student's] expulsion from the school and is unsure of whether this was in any way related to the accusations against the teacher, that there was no explanation given to him or his family regarding what happened to [the fellow student] or how the matter of his assault was investigated. This has led over the years, and particularly the last two years, to feelings of confusion, guilt and self-blame made worse by the revelations in regard to the case against the teacher by [the fellow student] and by the other boy who also wishes to bring a case against the teacher but was also expelled, thus sowing further doubt in his mind as to what extent this teacher may have played a part in the assault on him, either directly or due to the influence on the person who sexually assaulted him. His emotional state is difficult both to elicit and to explain but there is no doubt he has had feelings of depression over the last two years or so, he feels confused and uncertain, he described problems in dealing with people and work and evidence that at least there are bouts of excessive drinking. I would make a diagnosis of adjustment reaction with depressed mood due to the events of many years ago and the thoughts and feelings that have been revived over the last two years as outlined above. I believe he would benefit from counselling, talking over his thoughts and feelings and attitudes with someone over a period of time. Ideally once a week for four to six weeks, then fortnightly for two to three months, then monthly for about a year with further contact. If his depression deepens or becomes more severe he may need more vigorous treatment for the depression with support and counselling and anti-depressant medication. At this time I don't think he specifically needs to see a Psychiatrist but if he did the cost would be between $110 to $150 per session. It is difficult to make a judgement of the effect of his experience and emotional state on relationships, he has a sense of a lack of trust, feeling of uneasiness and uncertainty about his future which affects how he relates to people. He is establishing his own business and feels that latterly there have been problems with concentration, difficulties in trusting people and he feels his business has been affected though not to a marked degree. Other activities continue and he feels that in his rugby coaching and involvement with people at rugby, that this is the best part of his life and he has no difficulty communicating there. The prognosis is uncertain. I believe there needs to be resolution of these issues through this case and with counselling and of course there is the suggestion there is another case to be heard in relation to the teacher in question. Over time with support and help there should be a gradual settling of his depression though he is vulnerable to further emotional distress with further stress."

The primary judge's reasoning on ss 60G and 60I 30 It is not necessary to set out the primary judge's reasoning on ss 60G and 60I in detail, because it is plain that that reasoning contained errors, as counsel for the opponent conceded, sufficient to justify interference with her exercise of discretion. 31 First, she devoted all her attention to whether s 60I(1)(a) was satisfied, and none to whether she should exercise the discretion conferred by s 60G. Yet s 60I does no more than set out preconditions to be established before the court can consider whether a s 60G order can be made. The failure to consider s 60G is an error of law. 32 Secondly, at the hearing before the primary judge counsel for the opponent expressly indicated that no reliance was being placed on s 60I(1)(a)(i) or (iii). Yet the primary judge's reasons for judgment stated that the opponent was relying on s 60I(a)(iii) and that a number of the opponent's arguments went to it. That is an error of fact revealing a misapprehension of the issues. 33 Thirdly, the primary judge on several occasions referred to "the conduct of the school in keeping quiet about the real culprit while telling the plaintiff not to talk about it" by describing this as "the school's 'trick'." This was not a characterisation that could be supported either by the opponent's affidavit (which used the word "tricked" but did not explain how the trick occurred), or by the opponent's case as pleaded in the Statement of Claim. The primary judge's references to the trick were thus errors of fact. 34 The primary judge's discretionary decision to extend the limitation period was thus flawed. Since the matter does not turn on questions of credit, and since there is no other reason for the matter to be remitted to the District Court for the decision to be considered afresh by it, it is appropriate for this Court to consider the opponent's application.

Section 60I(1)(a)(ii) and (b) 35 The question is whether the opponent has satisfied the court, first, that the opponent was unaware of the nature or extent of the personal injury he suffered on 16 December 1998 or a time before that date when proceedings might reasonably have been instituted, and, secondly, that the application was made within three years after the opponent became aware, or ought to have become aware, of the nature or extent of the personal injury. 36 The claimant submitted, first, that the question was not when the opponent became aware of "the technical name or description of an injury, but its effect, actual or potential, upon" him: CRA Ltd v Martignagno (1996) 39 NSWLR 13 at 20; Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 12-13. Ignorance on the opponent's part of the medical description or diagnosis of his condition did not establish unawareness of its nature and extent if he knew his own "signs and symptoms": CRA Ltd v Martignagno (1996) 39 NSWLR 13 at 20; Commonwealth of Australia v Nelson [2001] NSWCA 443 at [67]. 37 Secondly, the claimant submitted that the opponent was in a very similar position to Mr Nelson in the last mentioned case. In that case Rolfe AJA said (at [4]): "Mr Nelson was born on 27 December 1960 and joined the Royal Australian Navy in October 1976. On 1 March 1981, he was serving on a submarine, HMAS Onslow, which was participating in exercises off the New South Wales' coast. When the submarine descended to a greater depth, there was allegedly a malfunction causing diesel exhaust fumes from an engine to enter her. This reduced visibility to almost zero, and Mr Nelson inhaled fumes. Emergency procedures were put in place, but he collapsed and, after he and other members of the crew were rescued, he was admitted to hospital where he remained for two days."

Three weeks later Mr Nelson was back at sea. 38 Rolfe AJA then said (at [58]-[60]): "[Counsel] submitted, in my opinion correctly, that for more than 3 years prior to 6 November 1998, Mr Nelson had been aware of the nature and extent of the personal injuries from which he was suffering, and that they arose from the occurrence on 1 March 1981. In those circumstances the 'label' given to the conditions from which he was suffering did not assist a submission that he was unaware of either the nature or, more particularly, the extent, of the personal injury suffered. The contrary submission was that it was not until March 1997, when Mr Nelson read that Mr Bourke defined the condition as Post Traumatic Stress, that he became aware that he had a medical, as opposed to an emotional, condition and, accordingly, it was not until then that he became aware of the extent thereof. The same medical condition may be described in somewhat different terms by different persons specialised in the field. In the present case, whilst Mr Bourke referred to the condition of Post Traumatic Stress, Dr Dinnen offered a diagnosis of Generalised Anxiety Disorder and Panic Disorder and Chronic Post Traumatic Stress Disorder. I appreciate that Mr Nelson was not made aware of Dr Dinnen's diagnosis, and it would seem that the 'medical name' referred to in the letter from the Commonwealth of 8 December 1995, granting the pension for 'Generalised Anxiety Disorder', was taken from Dr Dinnen's report. However one labelled the condition, Mr Nelson was clearly aware of all the symptoms from which he was suffering. That awareness dated back a number of years prior to 6 November 1995." 39 Rolfe AJA then said (at [68]): "In the instant case, Mr Nelson was aware of all the symptoms from which he was suffering. He had received psychological counselling and had seen a psychiatrist. There was no suggestion that the symptoms would become worse. The extent or limits of the condition from which Mr Nelson was suffering had been reached. In these circumstances, it seems to me, that his lack of knowledge that the problems could be described as Post Traumatic Stress did not in any way affect the extent of his personal injury. Rather, that was a way in which it could be described. However, as Clarke JA said, the Court is not concerned 'with the technical name or description of an injury but its effect, actual and potential, upon the applicant'. It would be very strange if a person, aware of all the symptoms and in circumstances where there was no evidence that they would worsen, could say that he or she was not aware of their extent merely because different doctors may describe them differently." 40 Rolfe AJA concluded (at [73]): "The position, in the present case, is that Mr Nelson was aware of the various symptoms from which he suffered. He was aware that he had received some treatment. There was no suggestion that the condition would deteriorate, such that the symptoms from which he had been suffering for a long period would change or become worse, thus not enabling him to be aware of the 'extent' of his injury. The only new fact, which came to his attention, was that the symptoms, of which he was fully aware, were described by Mr Bourke as Post Traumatic Stress. He sought, thereupon, to draw a distinction between what he had thought was an emotional condition and a medical condition. However, whether one describes the condition as emotional or medical, the symptoms and effect upon him were the same, and there is certainly no suggestion that having been told that he was suffering, in the opinion of Mr Bourke, from Post Traumatic Stress, that he sought any further treatment or that his condition changed. In these circumstances it would be, in my opinion, fanciful to suggest that Mr Nelson was not aware of the extent of his injury for many years prior to November 1995, or that his becoming aware of Mr Bourke's report in any way had an effect upon the extent of the injury." 41 Rolfe AJA then distinguished Commonwealth of Australia v Dinnison (1995) 56 FCR 389 on the basis that it was not until the applicant in that case was examined by a Dr Dinnen "that he was made aware of the fact that he had a psychiatric injury, as opposed to physical injuries, from which he considered that he had suffered, and the existence of which caused understandable anxiety": at [77]. 42 He said (at [78]-[79]):

"The distinction between that case and the present is that the trial Judge's finding was that the applicant had not been aware that he was suffering from any psychiatric injury until such time as he read the report of Dr Dinnen. However, in the present case, Mr Nelson was aware that he was suffering from an emotional state, and there was no evidence to suggest that there was any difference between that state and Post Traumatic Stress. Indeed, it was the condition from which he was suffering that constituted Post Traumatic Stress. In the result, I am of the view that Mr Nelson was aware of all the symptoms from which he was suffering and, therefore, the extent of his personal injuries. The mere fact that he was not aware that those symptoms could be characterised as Post Traumatic Stress does not, conformably with the authorities to which I have referred, lead to the conclusion that he was unaware of the extent of the personal injuries. It would be, in my opinion, an extraordinary result if, having the awareness he did, he could nonetheless overcome the problems created by sub s (a)(ii) because doctors' views varied as to the way in which the problem was described." 43 The claimant submitted that from the opponent's affidavit and from Dr Morse's report the following conclusions could be drawn: "(i) symptoms of emotional stress were suffered by Mr Stanley at the time of and immediately after the events of 1988; (ii) these symptoms were diagnosed by Dr Morse as 'Post-Traumatic Stress Disorder'; (iii) over the two years prior to April 1999 when Dr Morse wrote his report, Mr Stanley had been suffering feelings of anxiety, depression and guilt; (iv) these further feelings of anxiety, depression and guilt were diagnosed by Dr Morse as 'adjustment reaction with depressed mood'; (v) both the diagnosis of post traumatic stress and that of adjustment reaction with depressed mood were based on the symptoms, set out in the report, that had been described to Dr Morse by Mr Stanley; (vi) the only matter of relevance of which Mr Stanley was not aware prior to receiving Dr Morse's report was that those symptoms could be described or characterised as respectively post traumatic stress and an adjustment reaction with depressed mood; (vii) there is in the present case, just as in Nelson , no evidence to suggest that there was any difference between the emotional state which Mr Stanley described to Dr Morse and, respectively, post traumatic stress and an adjustment reaction with depressed mood: as in Nelson , it was the condition or conditions so described that constituted those disorders; (viii) again, just as in Nelson , there was no evidence suggesting that Mr Stanley's condition would deteriorate, or had deteriorated since the expiration of the limitation period, so that the symptoms he described to Dr Morse would change or become worse, thus not enabling him to be aware of the extent of his injury; (ix) there is no basis in the evidence for her Honour's conclusion, at the top of page 7 of the judgment, that, having regard to the medical report, Mr Stanley had no insight into or understanding of the nature and extent of the injury suffered or the connection between the injury and the defendant's acts and/or omissions until he saw the doctor in April 1999. No evidence was led from Mr Stanley in this regard. The only inference that is reasonably open on the extremely limited evidence offered by Mr Stanley regarding his awareness of the nature or extent of his injury is that the only 'insight' or 'understanding' which he lacked before reading Dr Morse's report was the knowledge that his symptoms, that is his emotional state, could be described in the technical terms attributed to them by Dr Morse. Consistently with the decision of this Court in Nelson , this is insufficient to open the gateway presented by s 60G." 44 Thus the claimant submitted that Dr Morse's diagnosis that the opponent was suffering from "adjustment reaction with depressed mood" was simply the putting of a "medical label" on the symptoms, and did not alter the opponent's understanding of the nature and effect of the symptoms experienced by the opponent. The claimant also submitted that the vagueness of Dr Morse's report and the conclusion that it was not necessary for the opponent to receive psychiatric treatment, as distinct from counselling, made it impossible to conclude that Dr Morse had even diagnosed actionable psychiatric injury. To use the words of Clarke JA in CRA Ltd v Martignagno (1996) 39 NSWLR 13 at 20, it could not be said that though the opponent may have been aware that he had suffered "an injury, possibly with continuing consequences", he was "unaware of its complications, implications or potentially serious consequences" until he visited Dr Morse. 45 Counsel for the opponent first read the following passages from the reasons for judgment of Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 11-14: "The 'extent of an injury must include all its consequences. It is not an unnatural reading of s 60I(1)(a)(ii) to hold that what the court must consider is the total extent of the applicant's injury in determining whether, at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury. Unless that construction is adopted, the Act will fail to provide for the very sort of case for which the legislation is designed to provide a remedy. That is to say, the case where the most serious consequences of an injury only arise after the expiration of the limitation period. Thus in The Commonwealth v Dinnison [(1995) 56 FCR 389], although the applicant was aware during the limitation period that he had an anxiety state, it was only after the expiration of that period that he became aware that he had a psychiatric illness. Because of that fact, the Full Court of the Federal Court held that he was not aware of the extent of his injury. Similarly in F J Walker Ltd v Webber [unreported, 16 November 1989. This was a decision on the meaning of 'the nature and extent of the personal injury' in s 57(1)(b) of the Act], the New South Wales Court of Appeal held that, although the applicant knew that he had a disc lesion, he was unaware of 'the extent' of his injury because 'he did not know it would or could lead to a surgical fusion or unfitness for work' [ F J Walker Ltd (unreported; 16 November 1989), at 5]. The better view of s 60I(1)(a)(ii) is that 'the extent' of the injury is to be determined as at the date of the application and not at the expiration of the limitation or earlier period. When the extent is so determined, the applicant must prove that, at the expiration of the limitation or earlier period, he or she was unaware that the injury was so extensive. As Clarke JA said in CRA Ltd v Martignago [(1996) 39 NSWLR 13 at 20]: 'The sub-section is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow (eg osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.' His Honour went on to say [ CRA Ltd (1996) 39 NSWLR 13 at 20-21]: The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant inquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.' Expectation as to the likely consequences of an injury is clearly an element in determining an applicant's awareness of the extent of the injury. When the relevant injury is a disease, the expectation of the applicant at the expiration of the limitation period as to the likely course of the disease will usually be determinative of whether he or she was aware of 'the extent' of the disease for the purpose of s 60I(1)(a)(ii) of the Act. In Australian Iron & Steel Ltd v Connell [(1959) 102 CLR 522 at 528]. Dixon CJ said that a disease was 'a pathological condition importing pathological and physiological incidents and consequences and liable to follow a course or some or one of courses more or less known or expected'. But it is the applicant's expectation as to the course of the disease, not that of the reasonable person, that is relevant. Thus, if an applicant knew at the expiration of the relevant period that he or she suffered from a diseased spine, it does not necessarily follow that the person was aware of the 'extent of personal injury' if eventually the disease caused the vertebrae to collapse. Whether the applicant was aware of 'the extent' of the injury would depend on whether that person was aware that there was a real chance that the vertebrae would collapse as the result of the disease. In Ditchburn v Seltsam Ltd [(1989) 17 NSWLR 697 at 704, per Kirby P, with whom Hope A-JA agreed. This was reaffirmed by the New South Wales Court of Appeal in F J Walker Ltd (unreported, 16 November 1989)] the New South Wales Court of Appeal held that early signs and symptoms may not constitute sufficient indication of the 'nature and extent' of personal injury. In F J Walker Ltd v Webber [unreported; NSW Court of Appeal; 16 November 1989, at 4] the same Court also stated that: 'One can know people who were as close to the bomb on Hiroshima as I was at the bomb at Maralinga were all riddled with cancer or they had this bone problem, bone marrow problem and that and lots of other defects of their body that caused death'. He said of this information sort of put a bit more on top of it when I met him'." 52 Counsel for the opponent said that what happened to Mr Dinnison was "very very similar" to what happened to the opponent - "Where you have an initial condition then you have exacerbations when events occur which remind the sufferer of the particular problem". 53 In Commonwealth of Australia v Dinnison there was evidence that the respondent was aware he had physical problems, summarised thus in a letter of 23 January 1987 from the Department of Defence (at 400): "I refer to your claim for compensation in respect of 'teeth became loose and had to be removed - very bad eyesight - passing of blood - poor hearing - anxiety - troubled uneasy and concerned from exposure to radiation." 54 Gummow and Cooper JJ then said (at 400-401): "To his affidavit in support of the present application, the respondent annexed a copy of a report by Dr Anthony Dinnen, consultant psychiatrist, dated 4 May 1993, and continued (par 42): 'Until I was given the report of Dr Dinnen I was not aware of any medical evidence that would support my claim against the Commonwealth.' In his report Dr Dinnen gave the following opinion: 'This patient is suffering from a chronic anxiety state as a result of his experiences at Maralinga during the atomic testing in 1957. His involvement with Aborigines at that time has much affected his life, and coloured his experiences. He perceives that his general health has been adversely affected by his exposure to radiation at Maralinga.' The primary judge expressed as follows his conclusions: 'Obviously, the case sought to be presented may well be beset with difficulties. However, I think sufficient has been put forward to support a claim on behalf of the [respondent] that he was unreasonably exposed to nervous shock from the third atomic blast and that that exposure foreseeably set in train the development of an anxiety state ... I consider ... that if he is not otherwise statute barred, the applicant has shown the existence of a case capable of being brought. ...

In this case, it is unnecessary to identify with precision when the relevant limitation period expired as this would have occurred many years ago. In my view, it is sufficiently demonstrated that it was not until the applicant was examined by Dr Dinnen that he was made aware of the fact that he had any psychiatric injury, as opposed to the physical injuries , from which he considered that he suffered. He was previously unaware of the fact, nature, or extent of the anxiety state which Dr Dinnen diagnosed.' [Emphasis supplied.]"

The opponent stressed the words which Gummow and Cooper JJ emphasised at the end of the passage quoted from the primary judge. 55 Gummow and Cooper JJ continued (401): "The Commonwealth takes issue with the statement by the primary judge to the effect that whilst previously aware of his alleged physical injuries, the respondent was only aware of 'the fact' that he had any psychiatric injury after the report by Dr Dinnen in 1993."

Counsel for the opponent said this was the precise point which the claimant was taking in the present case and which the Full Federal Court rejected in Dinnison's case. 56 Gummow and Cooper JJ then said (at 401): "The submission by the Commonwealth is that given the state of knowledge and awareness manifested by the making of the respondent's claim for compensation and supported by what he later conceded in cross-examination, the order under s 60G was made in error. This is said to be because the primary judge could not properly have been satisfied that the respondent, at the relevant dates before the expiration of the limitation period, or a time before then when proceedings might reasonably have been instituted, (i) did not know that he had suffered personal injury or (ii) was unaware of the nature and extent of that personal injury. The Commonwealth submits that the claim by the respondent for compensation in respect, among other things, of 'anxiety', the subject of the letter from the Department of Defence dated 23 January 1987, which was passed on to his solicitors before the writ and statement of claim were drawn and filed in 1988, is a significant matter and one not noted by the primary judge in his reasons. The letter recites the claim received as one not only in respect of teeth, eyesight, passing of blood and poor hearing, but also 'anxiety - troubled, uneasy and concerned from exposure to radiation'." 57 The next passages relied on were as follows (402-403): "It is important to appreciate, as did the primary judge, that the personal injury, the suffering of which Mr Dinnison alleged he did not know, or was unaware as to its nature or extent, was a psychiatric illness. … The respondent's oral evidence and the documentary material to which we have referred certainly is capable of supporting the proposition that from aspects of his service at Maralinga, culminating in exposure to the shock of the third atomic blast, the respondent derived a deep seated fear that he had been affected by radiation, which condition of fear manifested itself in dreams and in disturbed sleep. This state of affairs might be accurately described, as it was, in his claim for compensation as 'anxiety - troubled, uneasy and concerned about exposure to radiation'. But, in our view, the primary judge, in a passage set out earlier in these reasons, correctly emphasised the importance of awareness by the respondent that his anxiety amounted to psychiatric illness."

Counsel for the opponent stressed the last sentence, said it was the ratio of the case, and said "it was the thrust" of the position advanced on behalf of the opponent. 58 Gummow and Cooper JJ concluded (at 403): "There was, in the evidence before the primary judge, in our view, sufficient to support a finding that within the meaning of s 60I(1)(a)(i) the respondent, at the relevant time, did not know that personal injury, being an anxiety state amounting to an illness, had been suffered by him. Even if that be not so, then within the meaning of subpar (ii) there was sufficient support for the finding that the respondent was unaware of the nature or extent of the illness. It should be noted that the paragraph uses the phrase 'the nature or extent'. The result is that even if there is awareness of the real nature of the personal injury, there may be a lack of awareness as to the extent thereof. Put at its very lowest, awareness of the extent of the illness only followed the diagnosis by Dr Dinnen." 59 In short, counsel for the opponent drew an analogy between Mr Dinnison, who knew he was anxious but not that this was significant - that his anxiety amounted to an illness, and the opponent, who knew he was suffering distress and fear, but not that this amounted to two illnesses. 60 Counsel for the opponent said that Commonwealth of Australia v Nelson was distinguishable for the following reasons. First, Mr Nelson, unlike the opponent, had attempted suicide. Secondly, Mr Nelson, unlike the opponent, had been treated by a psychologist - for almost two years. Thirdly, Mr Nelson, unlike the opponent, had made a claim on the defendant for what were specifically described by him as "anxiety attacks", had been granted a pension for what he had been told was "generalised anxiety disorder", and experienced "panic attacks" occurring two or three times and later six or seven times per day. Fourthly, Mr Nelson, unlike the opponent, had mood swings which were bad enough to be noticed by his wife, had bad dreams every night, and was violent to his wife. In short, as the Court in Nelson's case found, while Mr Nelson was aware he was suffering from an emotional state no different from the "Post Traumatic Stress" later diagnosed, Mr Dinnison was unaware he was suffering from any psychiatric injury until he read Dr Dinnen's report. Counsel for the opponent submitted that while Mr Nelson, who was aware he had suffered the symptoms described for about sixteen years and had been seeing a psychologist for two years, must have been aware that he had a psychiatric problem, Mr Dinnison and the opponent did not. 61 Counsel for the opponent submitted that when the third incident happened, he screamed: he was thirteen at the time, he was a boarder isolated from his family, and it was a significant and not a trivial event. He was told by the housemaster not to tell anyone about what had happened and bottled it up for nine years until 1997, even though he was "extremely upset": he did not tell his parents because he was embarrassed and feared they would believe the incident was his fault. He suffered "fear, anxiety and depression", would wake up screaming, would often be under his dormitory bunk, and was scared he would be assaulted again while asleep. He felt betrayed by the fact that he could not tell his parents. 62 Counsel for the opponent submitted that the emotions which the opponent experienced while thirteen, fourteen and fifteen years of age did not betoken any awareness that he was suffering any kind of illness: he was not to have imputed to him the knowledge of an adult. Counsel for the opponent submitted: "The point I am getting at is whatever happened has just been bottled up inside this young person and its origins are when he is 13 and it's a bit much to say when you are 22 or 23 you are immediately cathartically released from this when this sort of background has occurred." 63 Counsel for the opponent submitted that a new factor arose: "there is apparently another player who may or may not have had anything to do with this, but it's interesting that the student that he thought was responsible claimed to have been assaulted by this particular master. What that does is no more but no less than this, suddenly what unpleasant and all that was appeared to be fairly straightforward. Now what intrudes on what must have been an extraordinarily distressing event which had been kept within him for years is the fact perhaps I did the wrong thing. So that guilt feeling that I referred your Honours to earlier which affects so often victims of this situation is now added to by the fact perhaps he was innocent, perhaps it wasn't him. We don't know whether it was. It doesn't matter whether it was or not. Now you have got the intrusion I have been unfair, I have done the wrong thing. And that's imposed on what's been bubbling away there somewhere unreleased, if you like, for some nine years." In fact there was no evidence that the school had played any trick on him, but he believed it had. "Then he finds out that my belief for nine years may not have been correct, there may have been something else going on, and with all the paranoia which is encouraged these days outside, you know, conspiracy theories, there is another player, perhaps my belief was wrong, perhaps the school knew more, perhaps this master was involved. All these things are occurring, they are occurring in his mind but that is just as relevant to this consideration as if they were real." 64 Counsel for the opponent submitted that Dr Morse's description of the opponent's agitation, tenseness, tearfulness and distress, and his inability to explain these phenomena, was "very poignant": the opponent showed no "insight as to the nature and extent of his condition" and "could not "even articulate it". "What he is doing is he is describing his confusion, his upset, these conflicting emotions. It's a cry for help. It's not an insightful analysis such as Mr Nelson carried out after 16 years of experiencing the sort of problems he had and seeking expert help. That's an extraordinarily pithy description of what the problem is here and it is not one which displays or demonstrates knowledge of the nature and extent of the injury." 65 Further, counsel for the opponent submitted that the concluding paragraphs of Dr Morse's report revealed "a maelstrom of emotion, … not insightful knowledge". Dr Morse found that his "emotional state is difficult both to elicit and to explain": if so, said counsel for the opponent, how can it be said he's aware of the nature and extent of the problem"? 66 In reply counsel for the claimant drew attention to the following evidence given by Mr Dinnison in cross-examination: "I am not suggesting you were overjoyed at all, Mr Dinnison, all I am suggesting to you is that you knew very well that you had had - because you had told Dr Dinnen, that you had had those various concerns for, according to you, for quite a number of years? - Yes, I also might add too that I was pretty surprised when an appointment was made for me to go to see a psychiatrist. It was the first time that this had ever happened to you, had it? - I didn't think I was - I needed psychiatry treatment, you know."

Counsel for the claimant said that that was a point of distinction between Dinnison's case and Nelson's case: Mr Dinnison was unaware that he was suffering from any psychiatric injury until he read Dr Dinnen's report, whereas Mr Nelson was. Counsel for the claimant said that the opponent was in the same position as Mr Nelson, because he told Dr Morse that when he went to see Dr Morse he had already decided to take legal action; he had already consulted solicitors; it was they who had directed him to Dr Morse; the only possible legal action could relate to psychological injury; and hence he cannot have been surprised to have been told that he had a psychological injury. 67 The question whether the opponent was unaware of the nature or extent of the personal injury suffered on 17 December 1998 is a difficult one. The opponent was not cross-examined, and it cannot be inferred, in the absence of any admissions in cross-examination by the opponent, that when he went to Dr Morse he already knew he had suffered from or was suffering from psychological or psychiatric illnesses to an extent sufficient to answer what is meant by the words "personal injury" in s 60I(1)(a)(ii). His visit to Dr Morse is equally compatible with ignorance about that question, but a desire to find an answer to it. His decision to start proceedings could be explained by the fact that one of the cases propounded in the Statement of Claim - though an ill pleaded case, very likely to fail, and very unlikely to produce much in the way of damages -was that the claimant's negligence permitted the fellow student to commit batteries on him which a careful system would have prevented. 68 The arguments of counsel for the opponent based on the way in which the opponent presented to Dr Morse have considerable force. Putting aside any question of feigned behaviour, of which there is no evidence, the opponent does seem to have behaved like someone who was confused, incapable of articulating his feelings, not having any insight into his symptoms, and unable to explain his emotions of guilt. An adult with those feelings might perceive them to be the symptoms of an illness, or might only perceive them to be the signs of some personal weakness or defect falling short of an illness. While children or young adults can infer a physical injury from physical symptoms relatively easily, it is far harder to infer psychological illness from particular feelings. That is a field well outside ordinary comprehension. An inference is fairly open that the opponent was aware of signs and symptoms in his condition, but not that they revealed any "personal injury". His very inability to explain his distress and his feelings of guilt suggest that he thought his condition was the result of some personal inadequacy, as distinct from a more serious condition amounting to "personal injury". There is a close analogy between the opponent and Mr Dinnison rather than Mr Nelson. 69 Hence s 60I(1)(a)(ii) is satisfied. In the present circumstances, it follows that s 60I(2) is also satisfied.

The s 60G discretion 70 The claimant submitted, against the background of the lapse of more than eleven years since the alleged incidents, that there were four reasons why the court should exercise its discretion under s 60G against the opponent. 71 The first was that the opponent could have seen an appropriate medical adviser before 17 December 1998. 72 The second was that even if the opponent's awareness of his condition was not complete, it was so extensive as not to make it just or reasonable to extend the limitation period. 73 The third is that prejudice to the claimant could be presumed from the passing of time - the damage it was likely to have caused to the memories of the school staff and indeed the opponent. 74 The fourth turned on the weaknesses of the opponent's case. In the claimant's argument in chief, the weaknesses were said to be of two kinds. The first related to the extremely vague, loose, improbable and exaggerated character of some of the allegations in the Statement of Claim. Particulars (a) and (i) illustrate improbability and exaggeration. Almost every particular of negligence illustrates vagueness and looseness. The second category of weakness relied on centred on inconsistencies between the Statement of Claim, the opponent's affidavit, and the history as recorded by Dr Morse. Thus the Statement of Claim did not mention the recent discovery of the news about the master who was charged, though the affidavit and the report did. The details about the master being charged differed as between the affidavit and the report. The report said that the feelings of the opponent in part arose because the police were not informed, whereas the affidavit said that they were informed, and had taken a statement from the opponent. The Statement of Claim complained that the fellow student had not been removed. The affidavit and the history suggested vaguely that the opponent felt guilty because the fellow student had been removed. The Statement of Claim appeared to indicate that the opponent had positively identified the fellow student as the assailant; the affidavit did not; the history recorded that the opponent "feels" it was the fellow student. The affidavit, however, suggested that it was the opponent's present belief that the assailant was the fellow student, even though other material appeared to suggest that the opponent was contending it may have been the teacher later prosecuted. The opponent's written submissions to this Court contended that in late 1997 the opponent "was given information which led him to believe that he had been tricked by the school into accusing wrongfully a fellow student whereas in fact the perpetrator had been a teacher". The affidavit is much less specific than this; the Statement of Claim is silent. Yet another proposition suggested by some parts of the material but not other parts was that the teacher's treatment of the fellow student may have caused the fellow student to assault the opponent. There is force in all these criticisms turning on the contrast between the Statement of Claim, the affidavit and the report. 75 However, the scene changed when counsel for the opponent addressed orally, though the changes had been foreshadowed by one or two remarks made by him while counsel for the claimant addressed. Counsel for the opponent was highly critical of the Statement of Claim. He said it was "appallingly drafted", was "improperly pleaded", revealed draftsmanship that could not be defended and was "appalling". He said it would take talents beyond his "to rehabilitate that document in the form in which it's currently pleaded". He said the case based on the theory that the claimant should have prevented the three incidents occurring was abandoned: it was "difficult to see how" the claimant could have stopped them. The real case advanced was that, once the incidents occurred, the claimant had failed to deal with the aftermath in a non-negligent way. 76 One consequence of the changed case was that neither Dr Morse's report nor the plaintiff's affidavit nor any other evidence was directed to the following vital questions:

(a) What standards would a non-negligent school in the claimant's position reasonably have adopted in 1988 in dealing with the aftermath of the assaults? Without some evidence of those standards - and it is far from self-evident what they might have been - there would be no evidence of breach of duty.

(b) What different effect on the opponent would there have been if, assuming that the three incidents did take place, he had been treated as he ought to have been treated compared to the way he was treated? Without some evidence of that, which is again far from self-evident, there could be no evidence of causation or damage. 77 Dr Morse did say that counselling and family involvement would have assisted the plaintiff, but the extent of the difference this would have made is hard to estimate. Dr Morse wrote a short supplementary report on 9 November 2001. In it he said: "I do not consider that the lack of medical treatment at the time of the assault nor the lack of medical treatment at this time has materially impeded my ability to assess Mr Stanley and the effect of the assault."

In view of the change in the nature of the opponent's case, that evidence of Dr Morse does not achieve a necessary purpose. It may be presumed, as the claimant submitted, that the claimant will have suffered prejudice from the passing of time in that the recollections of its witnesses will have faded. Another possible type of prejudice is whether the ability of medical experts to assess the effect of the difference on the opponent between the treatment the claimant gave him and that which it ought to have given him has been materially impeded by delay. Dr Morse was not asked to say anything about that. What he did say was not directed to that question. 78 The court's discretion under s 60G should be exercised against the opponent for the following reasons. 79 First, the deficiencies in the case as pleaded and the evidence filed in support of the application are so great as to suggest that it has little prospects of success, whether it is propounded in the form of the Statement of Claim or in the different form outlined in oral argument. 80 Secondly, there is no evidence to suggest key elements of the rather speculative case which the opponent now desires to advance (namely, what standards of counselling were appropriate in 1988 and whether they would have prevented injury), and considerable prejudice is likely to have enured to the claimant by reason of the lapse of time. In particular, there may be difficulties in assembling evidence now of what standards were appropriate in 1988 which is untainted by knowledge of what the most recent standards are. 81 Thirdly, Dr Morse's view was that any injury which the opponent has suffered is not so great that he presently needed psychiatric treatment and that some counselling sufficed. 82 Fourthly, the opponent's own counsel, who is extremely experienced in all types of personal injury litigation, conceded that though his client's claim was "real" and "serious", "not by any stretch a hopeless case", it was "not big" - "it's a small claim." In short, even if the claim succeeded, which is highly questionable in view of the contradictory nature of the evidence and the gaps in the way it is formulated, it would not result in damages of any significance. That is supported by the fact that despite the complaints he makes, the opponent has had quite a successful life. He told Dr Morse that he ran "his own legal investigation business". He achieved an ambition which thousands of young men have but which relatively few achieve, namely playing first grade rugby union football. Though injury has curtailed his career, he is active in coaching. These facts negate the allegations in the particulars that he "has been restricted in a wide range of work, sports, social and hobbying activities" and that he "has been restricted in his ability to earn on the open labour market and claims in respect of a diminution of earning capacity". 83 In all the circumstances, taking into account the interests of both parties, it would not be just and reasonable to exercise the court's discretion to extend the limitation period in the manner desired by the opponent.

Orders 84 It follows that leave to appeal should be granted, the appeal should be allowed, the respondent's Notice of Application to Commence Proceedings dated 10 August 1999 should be dismissed, and the orders of Gibson DCJ extending the time to commence the proceedings to 14 December 2001 should be set aside. It also follows that the respondent should pay the appellant's costs of the application for leave to appeal and of the appeal, but should receive a certificate under the Suitors Fund Act 1951 if qualified. The draft Notice of Appeal did not seek any order varying the costs orders made in the District Court, and in all the circumstances this Court should not vary them. 85 The following orders are proposed:

1. On condition that the appellant files a Notice of Appeal and pays the filing fee:

2. The respondent's Notice of Application to Commence Proceedings dated 10 August 1999 is dismissed.

3. The order of Gibson DCJ extending the time to commence the proceedings to 14 December 2001 is set aside.

4. The respondent is to pay the appellant's costs of the application for leave to appeal and of the appeal, but is to have a certificate under the Suitors Fund Act 1951 if entitled. 86 HODGSON JA: I agree with the orders proposed by Heydon JA, and substantially with his reasons. 87 The events the subject of the proposed claim occurred in 1988. The present Statement of Claim was filed in November 1999. At the hearing of this application for leave, Senior Counsel for the opponent foreshadowed a new Statement of Claim seeking damages for injury caused by the school's unsatisfactory response to the assaults on the opponent. No draft Statement of Claim was submitted. 88 As pointed out by Heydon JA, there is no evidence to enable the Court to come even to a prima facie view as to what response to the assaults reasonable skill and care would have required in 1988. If it be assumed that the exercise of such skill and care would have made the difference of providing counselling and family involvement, then Dr. Morse's report provides some evidence that this would have resulted in a better outcome; but it remains speculative as to whether the exercise of reasonable skill and care would have made just this difference, and more generally as to what would have been the outcome for the mental state of the opponent if reasonable skill and care had been exercised in dealing with the opponent's complaints. For example, would this have led to some different treatment of the other student at the time, or of the teacher who was later alleged to have assaulted him; and if so, what then? 89 Since this Court is exercising the discretion given by s.60G of the Limitation Act, the opponent bears the onus of showing that it is just and reasonable to grant an extension; and for this the opponent must show not merely that there is a case with substantial merit, but also that the delay has not made the chance of a fair trial unlikely. Having regard to the likely problems in ascertaining the truth about a complicated and highly contentious fact situation occurring in 1988, and in evaluating alternative psychological outcomes for the opponent arising out of different scenarios occurring at that time, in my opinion the presumptive prejudice to the claimant from the delay is high in this case. I am not satisfied that the delay has not made the chance of a fair trial unlikely. 90 Accordingly, the extension of time should be refused.

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