Flemming v Gibson [2001] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION: Flemming v Gibson [2001] QCA 244

PARTIES: KYM MAREE FLEMMING / (plaintiff/respondent) / v / NEIL GIBSON / (first defendant/appellant) / THE NOMINAL DEFENDANT / (second defendant)

FILE NO/S: Appeal No 11187 of 2000 / SC No 278 of 1995

DIVISION: Court of Appeal Cairns Circuit

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 22 June 2001

DELIVERED AT: Cairns

HEARING DATE: 20 June 2001

JUDGES: Davies and Thomas JJA and Jones J / Judgment of the Court

ORDER: Appeal dismissed with costs.

CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – DISABILITIES – UNSOUNDNESS OF MIND – where respondent was injured in a motor vehicle accident when she was 10 years of age – where writ claiming damages issued over three years after respondent turned 18 years of age – whether respondent has at all times been a person "under a disability" within the meaning of s 29 of the Limitation of Actions Act 1974 – where nature of disability relied upon was "unsoundness of mind" – where necessary to establish a mental illness producing incapacity to manage her affairs in relation to the accident in the manner of a reasonable person – where conflicting expert evidence – whether finding of disability was reasonably open on the evidence as a whole / LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – GENERAL MATTERS – whether estoppel arose by reason of an earlier unsuccessful application to extend the limitation period – whether present claim barred pursuant to principle in Port of Melbourne Authority v Anshun Pty Ltd / Limitation of Actions Act 1974 (Qld), s 5, s 29 / Uniform Civil Procedure Rules (Qld) r 93, r 94 / Abalos v Australian Postal Commission (199) 171 CLR 167, considered / Ahmedi v Ahmedi (1991) 23 NSWLR 288, considered / Devries v Australian National Railways Commission (1993) 177 CLR 472, considered / Holtman v Sampson [1985] 2 QdR 472, considered / Kerr v Ipswich Turf Club Inc, Appeal No 12009 of 1998, 17 September 1999, considered / King v Coupland [1981] QdR 121, applied / Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered / State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, considered

COUNSEL: J R Baulch SC for appellant / D B Fraser QC, with C McLennan, for respondent

SOLICITORS: Roberts Nehmer McKee (Townsville) for appellant / Dempseys (Townsville) for respondent

THE COURT: The respondent was injured in a motor vehicle accident in 1984. She was then a 10 year old girl. The present appeal is against an order by the Northern Judge declaring that she has at all times been a person "under a disability" within the meaning of that expression in s 29 of the Limitation of Actions Act 1974. Under that section an action may be brought at any time within three years from the date on which the person ceased to be under a disability.

It is common ground that the respondent was under the disability of infancy until 20 July 1992 when she turned 18. A writ claiming damages on her behalf was issued on 15 December 1995. For the purposes of the present order, the relevant period during which the respondent was obliged to show the further continuation of a disability is between 20 July 1992 and 15 December 1992, the latter date being three years before the issue of the writ. The nature of the disability relied on, and found by his Honour to have subsisted at all material times, is "unsoundness of mind". Section 5(2) of the Limitation of Actions Act provides that a person shall be taken to be under a disability while that person is of unsound mind. The basis of the unsoundness of mind relied upon here is brain damage causing impairment of intellect and psychiatric disorder.

For present purposes the relevant test for determining whether unsoundness of mind is established for the purposes of s 5(2) and s 29(1) of the Act is that formulated by Macrossan J (as he then was) in King v Coupland.¹ Having referred to Kirby v Leather² his Honour continued:

"It may be accepted that the meaning of "unsoundness" of mind is to be gathered from considering the place of the relevant phrase in the statute and from the function intended by the statute itself. The examples given at p 384 of relevant aspects of unsoundness seem helpful, with respect, and a number of the medical witnesses before me were asked to provide an opinion, basing themselves upon those guidelines viz capacity to instruct a solicitor properly; capacity to exercise reasonable judgment upon a possible settlement and capacity to appreciate the nature and extent of any available claim. These seem to me to be aspects of a broader concept of a mental illness causing an incapacity to manage affairs in relation to the accident that is to manage them in the manner that a reasonable man would achieve. This I take to amount to the unsoundness of mind which the Statute brings into question."

Shortly stated it was necessary for the respondent to establish a mental illness producing incapacity to manage her affairs in relation to the accident in the manner of a reasonable person.

Two principal grounds are relied upon by the appellant for submitting that the order should not have been made. Firstly it is submitted that a finding of unsoundness of mind was against the evidence and the weight of the evidence. Secondly it was submitted that his Honour should have found that the respondent was estopped from pursuing the application, having regard to the previous dismissal of an application to extend the limitation period.

Whether the finding of disability was reasonably open

There is no contest in relation to the fact that the respondent is a person of borderline intelligence with some intellectual deficit. That however is not of itself sufficient order to justify a conclusion that she is a person under a disability. His Honour's conclusion depended upon additional findings of social phobia and depression. However we do not understand the finding of depression to have played any significant part in his Honour's findings. The evidence which was accepted in relation to these conditions was that of Professor James, and there is no suggestion that the respondent manifested signs of depression prior to about the middle of 1996. Professor James thought that the depression might in any event fluctuate and thought that it may have reduced in more recent times with the respondent settling into a better routine. If the relevant finding of unsoundness of mind is to be sustained, it must be on the basis of intellectual deficit and social phobia.

The evidence of Professor James, which his Honour accepted, includes the following opinion:

"The Plaintiff is not a person who is capable of managing and administering her affairs in relation to the accident in which she was injured as an ordinary person would be capable. I do not consider she is competent to give proper instructions to a solicitor, nor is she capable of exercising a reasonable judgment upon any possible settlement, or appreciating the nature and extent of her claim. I am of the opinion that this state of affairs has existed since her accident."

That amply satisfies the requirements of the test in King v Coupland. The question is whether, on the evidence as a whole, his Honour erred in acting upon Professor James' opinion.

His Honour drew attention to the fact that to outward intents and appearances the respondent presented as a person who had managed to do most of the things that one associates with independent existence. In relation to her presentation in court his Honour observed:

"My own impression of the Plaintiff was that she presented quite well and answered questions appropriately. She appeared to have no difficulty understanding them. She was pleasant and responsive. The fact that she presents well to others was noted by some of the professional witnesses. However I accept the evidence of the psychologists as to her impairments and deficits as revealed by the tests administered. Indeed, it seems that her good presentation gives a false impression which, to some extent, masks the true position."

We cannot present a better summary of the objective facts since the time of the respondent's accident than that presented by his Honour in the following passage:

"A summary of the Plaintiff's history since the time of the accident would not immediately suggest the claim that she has been under a disability because of unsoundness of mind is very promising.

After her accident she returned to school. For sometime she undertook grade 1 lessons although she was then in grade 5. However she progressed each year to the next grade. The school reports at her primary school were tendered in evidence. These reveal some difficulties in some areas but also reveal satisfaction at times with her progress. She continued until grade 10 which she failed. She left school for a period and worked at a supermarket before returning to again attempt grade 10 at another school. There is some lack of clarity about the precise results she achieved when she sat for the second time but it appears that she managed to pass only some subjects. She underwent a pre-apprenticeship course with a hairdresser and undertook a TAFE course in this field although she did not pass the theory exams. She in fact worked for three hairdressers although the evidence would not suggest she was actually performing hairdressing work.

In early 1993 she left home and moved into a house with two other women and a man she had formed an association with, and whom she was later to marry. She became pregnant to him and he left her after the birth of the child. They resumed cohabitation and she had a second child by him before he ultimately terminated the relationship. The Plaintiff during this time performed some work looking after pre-school children. She subsequently met her present partner and they commenced to live together. They have since left North Queensland and now live in Oakey where he works in an abattoir. They have had a child so that the Plaintiff now has three children, the eldest of whom is at school.

The Plaintiff obtained a licence after she turned 18 and is able to and does drive a vehicle. Whilst working for one of the hairdressers the Plaintiff fell and sustained a broken arm. A claim for compensation was lodged and she received Workers Compensation payments. I will return to the details of this a little later.

Whilst the above summary indicates a person who has managed to obtain employment and has established and maintained a relationship firstly with one man and then subsequently with another which continues and who has three young children who she cares for there are as will be referred to later, some indications that she has had some significant difficulties in some areas since the accident. It is clear that she largely avoids going out and meeting others, that she is substantially dependant on others in order to maintain her day to day routine and leaves most of the decision making and performance of family tasks to her partner and his mother."

The evidence of psychological testing suggests some intellectual deficit superimposed by the accident upon what was already probably a below average intellectual level. The respondent is overall of low average or borderline IQ with marked impairment in some areas, particularly in comprehension. The critical fact relied on by Professor James and in turn by his Honour was the combination of this with her social phobia. There was a direct conflict of evidence on this latter question. Dr Byth considered she was prone to social avoidance, which resembles a social phobia, but did not consider that her symptoms were severe enough to justify clinical diagnosis of such a condition under DSM-IV.

One factor which might be thought to have made it difficult to accept Professor James' opinion is that he took the view that her phobia was so acute that it would have been inconceivable that she could have consulted a solicitor of her own initiative. The evidence in relation to her retaining of a solicitor in November 1995 was regarded by his Honour as "far from satisfactory". It largely consists of the following statement in an affidavit by the respondent.

"Nobody in my family discussed the accident with me in terms of bringing an action at law against the driver of the vehicle, Mr Gibson. In fact, I was not aware of the identity of the driver of the vehicle until after my solicitors told me his name. The first I knew about the possibility of suing the driver was when my sister, Vicki Flemming, came to me on about the 20th day of November, 1995 and informed me of the results of her visit to Messrs Dempseys, Solicitors, in relation to her own injuries received in the same incident. As a result of what my sister told me on that day, I went to Mr Dempsey's office in Townsville on the 28th day of November, 1995 to ask for his advice as to what I should do.

His Honour indicated that he thought it reasonable to infer that "the plaintiff's sister must have encouraged her to attend the solicitor", and went on to indicate that even if that inference were not open he would not be prepared "on the state of the evidence on this subject" to reject Professor James' opinion. His Honour referred to the fact that no-one called any further evidence on this point and that "the plaintiff was neither examined or cross-examined on the subject". The onus of proving that she was at material times under a disability lay on the respondent. It was submitted that his Honour in effect reversed the onus in drawing an inference of encouragement by the respondent's solicitor. However we think that the sequence described by the plaintiff suggests some form of encouragement was likely to have been given. The initiative of the respondent in then seeing a solicitor by herself, and in giving instructions to proceed with a claim seems to us to be of more importance than the question whether the respondent received initial encouragement from her sister. At least some initiative on her part may be discerned in the narrative that she has presented, but it is difficult to tell how much. Although it is a matter that calls into question the validity of Professor James' diagnosis, it is very difficult to conclude that the diagnosis is necessarily falsified by the giving of instructions to a solicitor in 1995.

The other matters relied on by the appellant as inconsistent with Professor James' diagnosis include the respondent's leaving of her family home, living with other persons, obtaining at least sporadic employment with hairdressers, and the fact that she successfully made a claim for workers compensation after breaking her arm in the course of her employment with a hairdresser in August 1993. The difficulty with these submissions is that although they tend against the diagnosis they are not entirely inconsistent with it. In Professor James' view some people with quite severe symptoms of social phobia manage to maintain employment, although it is generally true that such persons find it difficult to maintain employment. So far as the workers compensation claim is concerned, it was open to his Honour to conclude that the claim was made under the instigation and guidance of others.

The acceptance by the respondent's solicitors of her instructions and their maintenance of an application to extend time under s 31 of their Limitation of Actions Act, and their conduct of an appeal against the court's rejection of that application suggest that her solicitors over an extended period considered that she was capable of giving instructions and acting as an independent client. However that would be explicable if his Honour's perception of the extent to which the respondent can "mask" her true disability is correct. His Honour expressed a preference for the views of Professor James over the contrary view of Dr Byth, referring to a degree of eminence which Professor James has obtained in this particular area, and to Dr Byth's recognition of Professor James' reputation. In the end the question comes down to whether the evidence suggesting independent functioning and performance by the respondent suggests that the acceptance of Professor James' opinion was unreasonable.

The present appeal challenges the rejection by a trial judge of one expert in the acceptance of another. That seems to have followed a process of rational inference upon examination of the whole of the evidence than upon any particular matter of credit discerned in the giving of evidence. The high qualifications of Professor James were an objective fact to which regard might properly be had. Some difference of approach may be found in the cases on the question whether appellate intervention is more readily available in relation to findings based on expert witnesses than in relation to other types of witness.³ It may be taken that the primary tribunal must look beyond the expertise of the expert witness and examine the substance of the opinion expressed and "apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted".⁴ But in the end, in order to set aside a finding of fact based totally or partly on the evidence of an expert witness it is still necessary to show some error or omission of the kinds recognized in the cases that deal with the setting aside of primary findings of fact by the primary tribunal.⁵ The learned primary judge heard evidence not only from the respondent but from the respondent's mother and the respondent's mother-in-law, both of whom gave evidence concerning the actual behaviour of the respondent at material times and also saw the examination and cross-examination of five expert witnesses. Apart from the fact that to some extent, matters of credibility may arise in the assessment of an expert's evidence,⁶ in the present case the final conclusion depended upon an appraisal of the facts found in reliance upon the evidence of other witnesses, including the respondent's mother and mother-in-law who gave evidence concerning the respondent's behaviour at material times. Although we have attempted a thorough review of the evidence, this is not a case where the appellate court is in an equally good position as the primary judge to draw inferences.

We regard the present case as falling very close to the line, because the level of outward functioning of the respondent does not, at first glance, seem markedly different from that of many other disadvantaged persons who maintain an independent existence despite disability and who manage their own affairs including, if necessary, litigation. However the relevant tests in the present matter touch upon the respondent's ability to give appropriate instructions to her advisers for the institution and conduct of proceedings, her capacity to understand matters upon which instructions might need to be given, her capacity to appreciate the nature and extent of the available claim and to exercise reasonable judgment upon possible settlement of it. Professor James is not the only witness who thought she was incapable of properly dealing with such matters. Mr Saltzman, a clinical neuro-psychologist, considered that she would not be capable of handling a large sum of money and that any funds she received should be place in the hands of a trustee. Dr Fields, a psychologist, supported the view that the respondent had significant deficits so far as maintaining litigation was concerned. Her tests confirmed that the respondent suffers phobia and anxiety and that she is of a borderline intellect.

In all the circumstances we are unable to say that his Honour erred in concluding that the respondent at material times has suffered from a mental illness that causes an incapacity to manage her affairs flowing from the accident in the manner that a reasonable person would be able to achieve. Broadly speaking the evidence justifies the view that the respondent is unequal to the task of managing her legal rights pursuant to the accident. There was sufficient evidence to justify his Honour's findings.

Estoppel

Reference was made to the unsuccessful application to extend the limitation period, and the further unsuccessful appeal to the Court of Appeal against that order. It was submitted that Port of Melbourne Authority v Anshun Pty Ltd⁷ bars the present claim.

The first submission is that there is an inconsistency between that determination and the order that is now sought. The inconsistency is said to arise from the implicit assumption in the first proceeding that the respondent had the capacity to make such an application. There was however no finding to that effect, and such a point was plainly not litigated. Furthermore, there is a difficulty in principle in maintaining an estoppel against a party when, in principle, the respective applications involve that party in different capacities.⁸ On the present application, perhaps somewhat belatedly, it was ordered that a litigation guardian be appointed for the purposes of the action.⁹ However, quite apart from the question of different capacities, we do not think that any direct estoppel arises against the present application by reason of the earlier unsuccessful application to extend time.

It was further argued that the extended form of estoppel recognized in Anshun should bar the making of the present claim. This principle, when applicable, precludes the litigation of matters which should have been brought forward at the time when the original litigation was conducted. The principle applicable to an extended estoppel of this kind was stated by the majority in Anshun to the effect that "there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it".¹⁰ The fact that grounds existed for an application of the present kind does not seem to have been evident either to the respondent or to her solicitors until more recent evidence became available suggesting that her capacity was less than it seemed to be. We do not think it could fairly be said that there was anything unreasonable in the conduct of either the respondent or her solicitors in not bringing forward both the original application and the present application, necessarily in the alternative, at the same time. We therefore conclude that his Honour was correct in rejecting the submission that the respondent was estopped from bringing the present application.

Orders

The appeal is dismissed with costs.

Footnotes

1. [1981] QdR 121 at 123. ↩

2. [1965] 2 QB 367, 383 – 384. ↩

3. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, 330 [91] per Kirby J; Holtman v Sampson [1985] 2 QdR 472, 474, 475; Ahmedi v Ahmedi (1991) 23 NSWLR 288, 290, 299; Kerr v Ipswich Turf Club Inc Appeal No 12009 of 1998, 17 September 1999. ↩

4. Holtman v Sampson above at 474. ↩

5. State Rail case above; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. ↩

6. Holtman v Sampson above at 474; State Rail case above at [91]. ↩

7. (1981) 147 CLR 589. ↩

8. Roberts v Hughes (1841) 7 M & W 399. ↩

9. Uniform Civil Procedure Rules 93, 94. ↩

10. Anshun above at 602 – 603. ↩