JX v GX & Others [2006] NSWCA 167 | Case summary

29 JUNE 2006 "JX" v "GX" & OTHERS Judgment 1 HANDLEY JA: The claimant, who is now 44, seeks leave to appeal from the decision of Master Harrison, as she then was, who dismissed his motion of 23 March 2004 which sought an extension of limitation periods pursuant to Sch 5 cl 4 and ss 60G and 60I of the Limitation Act. The claimant was sexually abused by the first opponent, an elder brother, from a young age. He did not complain to the police until shortly before 11 March 1996. The first opponent was later convicted of three criminal offences against the claimant, charged as representative counts, committed between 1970 and 1976 when the claimant was between the ages of 9 and 14. The first opponent was sentenced on 9 October 1997 to fixed or minimum terms totalling 12 years which were reduced on appeal to 8 years. 2 The limitation periods for these assaults expired in 1985, six years after the claimant attained his majority. Proceedings were commenced on 3 February 2003 but the application for an extension of the limitation periods was not filed until 23 March 2004. 3 In 1997 the claimant made a claim for victims compensation which was allowed on 3 June 1998, and he received the statutory maximum for this class of offence of $50,000. 4 The claimant had the onus of establishing one or more of the threshold matters specified in s 60I(1)(a) which enliven the power of the Court to extend a limitation period. He established these matters as at the expiration of the limitation periods. He also had to establish that his application was made within 3 years after he became aware of all three matters. The Master found that the claimant had failed to establish that his application was made within that period. She also held that, even if any of her findings were wrong, she would not have exercised her discretion in favour of granting an extension. 5 Mr Hennessy SC who appeared for the claimant, but had not appeared below, only challenged the Master's finding that the claimant was aware of the matter specified in s 60I(1)(a)(ii), that is the "nature or extent of personal injury" he had suffered, before 3 February 2000. This was thought to be the date fixed by s 60I(1)(b) 3 years before the application for an extension was made. That date was 3 years before the statement of claim was filed, but the extension application was not made until 23 March 2004 so the relevant date was in fact 23 March 2001. In this case nothing appears to turn on the difference. 6 Mr Hennessy identified what he submitted were two significant errors, one of law, and one of fact, which he submitted vitiated the Master's decision and her exercise of the discretion conferred by s 60G(2). Section 60I(1)(a)(ii) provides that the Court may not make an order under s 60G unless it is satisfied that the plaintiff "was unaware of the nature or extent of personal injury suffered" at the relevant time. The "or" in this provision is clearly disjunctive, and a plaintiff can therefore establish this threshold matter by proving either that he was unaware of the nature of the personal injury he had suffered, or was unaware of its extent. He must do this both as at the expiration of the limitation period, and within the 3 year period specified in para (b). 7 The Master referred to this issue in paras [24], [25] and [27] of her reasons. Her reference in para [24] and her first reference in para [25] do not reveal legal error. However in her second reference in para [25] she said: "on the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff was unaware of significant aspects of the prognosis …". In para [27] she said: "it is my view that the plaintiff was aware of the nature or extent of his personal injury by 1998 at the latest" (emphasis supplied). 8 In the latter passage the Master makes a positive finding that the plaintiff was aware of one or other of the matters in s 60I(1)(a)(ii). The defendant does not have the onus of proving that the plaintiff had such knowledge, but the plaintiff has the onus of proving that he did not. Thus the finding that the plaintiff was aware of either one or the other does not decide the issue because although aware of one he may not have been aware of the other. The Master did not find in terms that the plaintiff was not aware of either of these matters, and she erred in concluding: para [28] that "thus" the plaintiff's claim under s 60I(1)(a)(ii) failed. 9 In my judgment the Master's reference in para [25] to "knowledge of the nature and extent of the injury" was not affected by any such error, although it assumes erroneously that the defendant had the onus of proving awareness whereas the plaintiff had the onus of proving its absence. A plaintiff can bring himself within s 60I(1)(a)(ii) by proving his lack of awareness of either of the matters in the sub-paragraph. 10 The plaintiff was fully aware of his symptoms, and was also aware of the counselling that he had received at Mona Vale Hospital and the opinions that the psychologist, Dr Lamble, had expressed in her reports of 26 September 1997 and 3 April 1998. These were obtained by his solicitors for the purposes of his victims compensation claim. The question for this Court is whether the claimant became aware of significant additional information about either the nature or the extent of his psychiatric injury after 23 March 2001. 11 The other matter relied on was the Master's finding that in 1997 and 1998 Dr Lamble considered that the claimant's symptoms met the criteria for a diagnosis of post traumatic stress disorder (ptsd) [para 26]. Dr Lamble did make that diagnosis in terms in her report of 29 February 2004 but there was no such diagnosis in her earlier reports. 12 In her first report she diagnosed the claimant as suffering from a "severe anxiety" condition which clearly constituted a recognised psychiatric illness because she strongly advised "further treatment, both individually and in a group". She confirmed this diagnosis in her second report, but added a further diagnosis of chronic depression. She also repeated her earlier advice about the claimant's need for treatment saying that he "would benefit from intensive treatment" and that she hoped in time "he will accept further treatment for his problems". 13 The Master was therefore in error in thinking that Dr Lamble had made a diagnosis of ptsd in 1997 and 1998. This error was clearly material, but it becomes necessary to consider whether the claimant's mental problems had in truth worsened after 1998 or whether Dr Lamble had simply made a fuller diagnosis of what was in substance the same mental condition. This requires careful consideration of the terms of her reports. 14 At the start of her last report Dr Lamble states: "on the whole, I would have to say that [the claimant's] condition remains largely unchanged". Her list of his symptoms included the following: "everyday he thinks about the abuse perpetrated on him", that he wakes every morning at 4am and has to reassure himself that his brother is not there and will not be coming soon, and he needs to give himself that reassurance before he can go to sleep. Other symptoms included constant nightmares, hypervigilance, and an exaggerated startle response. She said that "those anxiety symptoms" when added to his persistent avoidance of stimuli associated with the abuse such as thoughts and conversations about it, markedly diminished interest or participation in significant activities, feelings of detachment and a sense of a foreshortened future, allowed her to make a diagnosis of ptsd. 15 She still believed that the claimant "requires significant treatment for his [ptsd], social phobia, clinical depression, pathological gambling, and his addiction to cigarettes and binge drinking". In concluding she said: "I was not able to see any improvement in [the claimant's] condition since my last assessment in April 1998". 16 The report thus stated that the claimant's condition "remains largely unchanged", that his anxiety "has not improved" and that there had been no improvement since 1998. Dr Lamble nowhere suggested that the claimant's mental condition had deteriorated during the interval. 17 Dr Anderson, a psychiatrist, examined the claimant on 20 October 2003. He had not seen the claimant before but said (p 3) that "there is a continuous history of psychological and psychiatric symptoms from childhood through adolescence, and into adult life up to the present …". He diagnosed a major depressive disorder and an anxiety disorder but did not mention ptsd. He, unlike Dr Lamble, was informed by the claimant of the counselling the latter had received at Mona Vale Hospital over a four year period. 18 The only other evidence about his treatment at Mona Vale Hospital was three pages of handwritten clinical notes dated 11 December 1995. The relevant entries included "clinically remains depressed", "still pacing the floor … at night", "still morbid in thoughts and talk" and "sweating profusely". 19 Dr Lamble's last report referred to the claimant's anxiety symptoms and others which allowed her to diagnose ptsd. She continued: "additionally, [the claimant's] symptoms meet the criteria for the diagnosis of social phobia". She said that: "The anxiety which was clearly evident four years ago has not improved" and listed relevant symptoms. She did not suggest that his anxiety symptoms had worsened in the meantime. I conclude therefore that the claimant's anxiety symptoms, although described in greater detail in the last report, did not differ in substance from those reported in her earlier assessments of 1997 and 1998. 20 In fact many of those symptoms are separately referred to in the earlier reports. She said that he "still" experiences sharp pains in his chest together with heart palpitations (second report). Other symptoms mentioned in her earlier reports include shakiness (first report), constant nightmares (second report), hypervigilance (second report), and an exaggerated startle response (first report). The claimant's constant need to pace the floor was not mentioned in her earlier reports, but was mentioned in the clinical notes from Mona Vale Hospital. 21 The only anxiety symptoms mentioned in the last report which were not referred to earlier are the tingling in his hands and feet, and his difficulty in breathing. On the other hand his hot and cold flushes and shakiness mentioned in the first report are not referred to in the last. In my judgment these differences in detail are not inconsistent with a finding that the claimant's severe anxiety state evident in 2004 was substantially the same as that which had been evident in 1997 and 1998. I would make that finding. 22 Dr Lamble made her diagnosis of ptsd on the basis of the claimant's anxiety symptoms and the further symptoms she identified. These were his persistent avoidance of stimuli associated with the abuse such as thoughts and conversations about it, markedly diminished interest or participation in significant activities, feelings of detachment from others and a sense of foreshortened future. Only one of these symptoms has any claim to novelty over those disclosed in the early reports, namely his avoidance of stimuli associated with the abuse. 23 However it is apparent that the claimant's inability to tolerate darkness or small spaces (first report), linked with his fears at night that his brother is coming back to attack him (second report), and his aversion to going out at night (second report) are also manifestations of his attempts to avoid stimuli associated with his abuse. A finding to this effect does not require the Court to make use of knowledge of ptsd acquired from other cases, or to consult the relevant section of DSM-IV which is not in evidence. The finding only involves characterising specific symptoms as falling within a general category of symptoms described in non-technical language. 24 In my judgment therefore the separate diagnosis of ptsd made by Dr Lamble for the first time in 2004 did not reflect any deterioration in the claimant's mental or psychiatric condition. It did not establish that he was suffering from a new or different form of psychiatric injury. All that has happened in my view was that Dr Lamble articulated for the first time a view of his symptoms which could support another diagnosis. 25 Thus the claimant, who already knew that his symptoms supported a diagnosis of two psychiatric conditions, learned for the first time that they supported a third diagnosis. Mr Hennessy submitted that this new diagnosis established that the claimant had not previously been aware of the nature or extent of his injury. He also submitted that even in 2004 the claimant still lacked insight into his psychiatric condition because he was unable to accept the advice of Dr Lamble that he would benefit from appropriate treatment. 26 This last submission is readily disposed of. The claimant was told by Dr Lamble in her first two reports that he would benefit from appropriate treatment. He was aware therefore that his condition was treatable, and his failure to have that treatment does not establish any relevant lack of awareness on his part. Indeed he told Dr Anderson that he had benefited from the counselling he received at Mona Vale Hospital. 27 The diagnosis of ptsd made in terms for the first time in 2004 does not establish that the claimant was previously unaware of the nature or extent of his injury. In Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1, 11 the High Court in their joint judgment referred to Commonwealth of Australia v Dinnison (1995) 56 FCR 389 and said that in that case: "… 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." 28 Similarly in the Commonwealth of Australia v Nelson [2001] NSWCA 443 Rolfe AJA, which whom Sheller and Hodgson JJA agreed, said para [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 [ptsd] 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 [in CRA Ltd v Martignago (1996) 39 NSWLR 13 at 20], 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." 29 These principles were applied by this Court in McGloin v Magann [2005] NSWCA 358 at para [76] where Giles JA said: "A medical opinion may make known something previously unknown, but it is not correct that the extent of an injury is unknown unless a suitably qualified person has provided a diagnosis and prognosis." 30 See also the Commonwealth of Australia v Smith [2005] NSWCA 478 at paras [6]-[7], [104], [118], [181]. 31 In my judgment although the claimant established the threshold matters in s 60I(1)(a) at the expiration of the limitation periods in 1985, he failed to establish, for the purposes of s 60I(1)(b), that the application for an extension of the limitation periods was made within three years after he became aware of all three matters in sub-para (a). I would therefore make the following orders:

(3) Appeal dismissed with costs. 32 SANTOW JA: I have had the advantage of reading Handley JA's judgment and agree with the conclusion he reaches at [31], the orders he proposes and, subject to a possible difference identified below, his reasons. 33 The claimant was unaware that he had post-traumatic stress disorder ("PTSD) but was aware of its symptoms, at the relevant date addressed by s60I(1)(b) (31 March 2001). If, contrary to the facts, there had been no diagnosis of the claimant having any other psychiatric condition at the relevant time, I doubt that this set of circumstances would render him aware of the "nature or extent of personal injury" for purposes of s60I(1)(a)(ii). 34 However, here the claimant was aware at the relevant date not only of his symptoms for PTSD in their essential character but also was aware that he had been diagnosed with two other psychiatric conditions, namely acute anxiety and clinical depression. He was aware of his having the symptoms that led to those diagnoses. That these two psychiatric conditions were evidently manifested by symptoms and a state of mind not shown to be significantly different from that associated with PTSD leads me to the same conclusion concerning s60I(1)(b) as that reached by Handley JA. 35 There was no evidence, based on DSM IV or otherwise, attempting to show that the claimant would have gained an essentially different understanding about the nature or extent of his personal injury had he been aware that he not only was diagnosed with acute anxiety and clinical depression, but also PTSD. It follows that the diagnosis of a third psychiatric condition, PTSD, has not been shown to constitute information which made him aware for the first time of the nature or extent of his personal injury, given the relatively complete state of his awareness of its symptoms and of his having other psychiatric conditions not shown to be significantly different. 36 In making these observations, I seek to draw out what may be a difference between the more obvious physical injury on the one hand and mental or psychiatric injury on the other. The latter, in terms of awareness of its nature, is capable of being masked until diagnosed as a psychiatric condition. One may feel depressed or anxious but have no notion that one's unhappy state of mind has acquired the character of a psychiatric condition; Commonwealth of Australia v Smith [2005] NSWCA 478. The obvious physical injury on the other hand, such as the symptoms of a broken arm, does not depend on diagnosis to convey awareness of its nature or extent. 37 Importantly, not every physical injury is of that obvious character. One only has to think of the ambivalent symptoms of an incipient cancer as demonstrating that here too diagnosis of that kind of physical injury may be necessary before its sufferer is aware of its nature. The word "nature" needs to be differentiated from "extent". Judicial observation cited by Handley JA on the latter are not necessarily transposable when it comes to awareness of the true character of a set of symptoms. Nature or extent are disjunctive in s60I(1)(a), as Handley JA observes at [5]. 38 McCOLL JA: I agree with Handley JA. **********

JX v GX & Others

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