Reid v ACT [2025] ACTSC 201

The affidavit explains that the solicitors received instructions from the plaintiffs to commence personal injury proceedings after the publication of the findings of the Coroner on 22 August 2024. Between 22 August 2024 and 10 December 2024, attempts were being made to arrange urgent medico-legal appointments with a psychiatrist. The solicitor did not receive the reports from the psychiatrist until 27, 28, 30 and 31 January 2025, respectively.

By that date, the deceased having ended his life on 1 February 2022, the proceedings were at risk of becoming statute barred on 1 February 2025. In that circumstance, the proceedings were commenced without leave. Leave is now sought nunc pro tunc in the circumstances of that urgency.

The defendant, the Australian Capital Territory, does not oppose the grant of leave.

I am satisfied that it was appropriate for the proceedings to be commenced due to the impending expiration of the limitation period. There was plainly an urgent need to begin the proceeding on 31 January 2025. I am accordingly persuaded that it is appropriate to grant the leave sought.

There remains only an issue as to costs. The defendant has provided comprehensive and helpful written submissions addressing the issue of costs and supporting its request for an order that the plaintiffs pay the defendant’s costs. In particular, it is submitted that the statutory language of s 51 of the Act does not impose a requirement that a claimant be in possession of expert medical evidence at the time of notification, and that, in accordance with the requirements of that section, the plaintiffs should at least have served notice of their claims at the time the instructions were given to commence proceedings in August last year, if not earlier. Indeed, the written submissions contend that notification of a claim could have occurred as early as 2022 when the “accident” giving rise to the injury happened. The reference to the accident is, of course, a reference to the suicide of the family member of the plaintiffs.

The injuries claimed by each plaintiff are, respectively, that the first plaintiff has suffered prolonged grief disorder; that the second plaintiff has suffered prolonged grief disorder and social agoraphobic and panic disorder; that the third plaintiff suffers complex post-traumatic stress disorder with comorbid depressive disorder; that the fourth defendant has suffered mental harm in the form of prolonged grief disorder and harmful substance use dependency; and that the fifth plaintiff has suffered prolonged grief disorder and anxiety disorder. Plainly, none of those disorders emerged spontaneously on the date of the suicide. They are each conditions that would have developed over time.

The Court has no evidence before it as to what instructions were received by the solicitors in August 2024 when the family members decided to commence personal injury proceedings. However, in my assessment, it was a responsible step for them to take to obtain an expert report before crystallising any claim under the Act. I accept, as submitted on behalf of the defendant, that s 51(3) does not specifically impose a requirement that an expert report be obtained before notice of a claim is given. In particular, that section provides that, other than in a motor accident claim or a child abuse claim, notice of the claim must be given within nine months after, relevantly here, if the symptoms of the injury are not immediately apparent, the day symptoms of the injury first appear.

However, the diagnosis of psychiatric injuries is notoriously nuanced and complex. I do not think it is reasonable to expect that the plaintiffs should, the first day they had any symptoms of sadness or grief over the suicide of their family member, have translated that in their own minds to symptoms of the kinds of injuries, damages for which they now claim.

For those reasons, I am not persuaded that it is appropriate to impose on them a requirement to pay the defendant’s costs of the present application. Indeed, on my reading of the affidavit, the plaintiff’s solicitors acted promptly and appropriately upon receiving instructions to commence proceedings. For those reasons, I reject the application for an order that the plaintiffs pay the defendant’s costs of the application and instead will order that the costs of the application be costs in the cause.