Saunders & Anor v Jackson

Court of Appeal (NSW)|2009-07-10|Before: Ipp JA, Macfarlan JA, Hoeben J, MacFarlan JA

CITATION: Saunders & Anor v Jackson [2009] NSWCA 192

JUDGMENT OF: Ipp JA at 1; Macfarlan JA at 2; Hoeben J at 3

DECISION: Leave to appeal granted. The appeal be dismissed with costs.

LEGISLATION CITED: Evidence Act 1995 Limitation Act 1969 (NSW)

Kotulski v Attard [1981] 1 NSWLR 115 at 117-118 CASES CITED: Olive v Johnstone [2006] NSWCA 21 at [61] State of New South Wales v Harlum [2007] NSWCA 120 at [61] State of New South Wales v Julianne Higgins by her tutor David Benedict O'Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244 at [20]

Wendy Kim Saunders - Claimant PARTIES: Kenneth Brian Saunders - Claimant Nicole Ann Jackson - Opponent

COUNSEL: DA Priestley - Claimants RE Quickenden/G Dilworth - Opponent

SOLICITORS: Smyth Turner Wall - Claimants Brazel Moore - Opponent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40643/2007 DC 5828/2006

IPP JA MACFARLAN JA HOEBEN J

Friday 10 July 2009 Wendy Kim SAUNDERS & Anor v Nicole Ann JACKSON JUDGMENT 1 IPP JA: I agree with Hoeben J. 2 MACFARLAN JA: I agree with Hoeben J. 3 HOEBEN J: Nature of Proceedings The opponent brought proceedings in the District Court for damages for personal injury of a psychiatric nature arising from sexual and physical assaults said to have occurred between 1978 and 1987 when the opponent was a minor. The opponent's date of birth was 14 April 1972 and accordingly she attained the age of 18 years on 14 April 1990. 4 The assaults were said to have been committed variously by the opponent's elder sister (the first claimant) and that elder sister's then boyfriend and later husband (the second claimant). 5 The Statement of Claim commencing the proceedings was filed on 30 August 2004. The proceedings were thus brought well out of time. Absent other considerations, the limitation period for this cause of action would have expired on 14 April 1996 (s 14(1)(b) Limitation Act 1969 (NSW) (the Act)). 6 The opponent filed a Notice of Motion seeking an extension of time on 11 October 2005. When that application came on for hearing on 27 March 2007, the opponent also argued that she had been under a disability within the meaning of s 11(3) of the Act. She submitted that s 52 of the Act suspended the running of the limitation period while she suffered from that disability. The disability relied upon by the opponent was not only her minority for a period (s 11(3)(a)) which was not in dispute but that she had been substantially impeded in the management of her affairs in relation to this cause of action by reason of impairment of her mental condition (s 11(3)(b)). 7 Those sections relevantly provide: "11(3) For the purposes of this Act a person is under a disability: (a) While the person is under the age of 18 years, or (b) While the person is, for a continuous period of 28 days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) Any disease or any impairment of his or her physical or mental condition. …" "52(1) … 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." 8 Balla DCJ, who heard the motion, accepted the opponent's submissions as to the suspension of the limitation period. As a result, her Honour found that she did not need to determine whether time should be extended under the Act. The claimants seek leave to appeal from her Honour's decision. The Court agreed to deal with the application for leave and the appeal together.

Factual Background 9 As her Honour appreciated, it was not necessary nor was it appropriate for her to make findings of fact on an application of this kind. All that was necessary was that her Honour satisfy herself that there was evidence of the factual matters upon which the opponent's principal action would be based. Her Honour summarised that evidence as follows. 10 The opponent was one of four sisters. The first claimant was born in 1967 and was thus five years older than the opponent. The opponent's other two sisters were Kerrie, born 28 December 1961 and Deborah, born 10 December 1959. Although the two claimants had been married, they were separated at the time of the hearing of the application. 11 It was the opponent's evidence that in 1978 (then aged six) she lived with her parents and shared a bedroom with the first claimant. She says that the sexual assaults by the first claimant commenced at that time and continued until 1980 when the first claimant started going out with the second claimant. 12 The opponent says that from 1980 the second claimant often stayed overnight in the family home and that between 1980 and 1983 there were sexual assaults on her by the first and second claimants. Although the opponent moved into a bedroom with her sister Kerrie in 1984, she says that the sexual assaults continued until 1987. 13 The opponent gave evidence that she had been a patient of Dr Stone from 1972 until 1995 and attended on her once in 2003. Doctor Stone treated her for a blistering genital rash in 1985 which was likely to have been genital herpes. This condition is generally only transferred by sexual activity. The opponent would then have been about 13 years of age. She told Dr Stone about the assaults on 20 June 1990 and asked the doctor not to tell her parents. They discussed the sexual assaults again on 2 March 1992, 26 March 1992 and 24 March 2003. On the recommendation of Dr Stone, the opponent saw a counsellor on two occasions in 1992 but ceased those attendances because she found discussing the assaults too traumatic and because the counsellor was located in the city. 14 The opponent says that the assaults ceased in 1987. She left school in year 11 (1989) because she was having trouble concentrating and was suffering from stress, anxiety and flashbacks. On 16 February 1991 she married Mr Paul Anderson. The opponent told her mother and her sister Deborah about the abuse in October 1991. The first and second claimants were married in 1988. 15 The opponent's family had strong connections with the police force. Her father was a senior officer, as was her uncle. In 1992 the opponent went to the Bankstown Police Station where her uncle was the officer in charge. She reported the assaults to a female police officer. That police officer told the opponent not to pursue the matter because it would take too long. The opponent's mother also asked her not to press charges due to "family status". Her mother said that it would ruin the family reputation if the opponent persisted with reporting the assaults. The opponent said that she accepted this advice and at the time felt unhappy, unwell and unwilling to take any form of proceedings. She was also concerned that if she pressed charges this might adversely affect her father's health. He was experiencing chest pains at the time and eventually died of a heart attack in 1997. 16 In about 1992-1993 the opponent's marriage broke down. The opponent said that the effects of the assaults contributed to this marital breakdown because of her outbursts of anger, alcohol abuse, flashbacks and nightmares. On 11 October 1995 the opponent gave birth to her son as a result of a different relationship. She developed postnatal depression following his birth. 17 On 25, 28 March and 2 April 1996 the opponent received counselling at the Liverpool Hospital after she attempted to take her life with an overdose of sleeping tablets and alcohol. The opponent said that at that time she was not really in control of herself and was unable to make certain decisions about her life. She discussed the sexual assaults with a counsellor but found the staff insensitive and unsympathetic. 18 On 16 May 1998 the opponent's daughter was born. The baby had serious medical problems, including an immune deficiency, a lymphoma and chronic reflux. The child's health did not improve until 2002. The opponent was very concerned about her child's wellbeing during this time and was stressed and anxious. The opponent married the father of her two children, Mathew Porter, in April 1999. That relationship ended in about 2002 with the separation being finalised in January 2004. 19 Doctor Cordowiner, a general practitioner, treated the opponent from 16 July 1999 until 2 August 2001. That doctor gave her some anti-depressants. They did not discuss a diagnosis. Ms Symonds, a clinical psychologist, treated the opponent from 28 August 2000 until 15 October 2001. They did not discuss a diagnosis. 20 On 2 July 2001 the opponent again attempted suicide by an overdose of tablets. She was scheduled and admitted to Gosford Hospital. The opponent said that she attempted to take her own life because she felt overwhelmed by the assaults, which were constantly on her mind. She was having flashbacks of the assaults and nightmares. On 5 July 2001 the opponent was discharged from Gosford Hospital and admitted to St John of God Hospital. She saw a psychiatrist and discussed the sexual assaults. She was discharged on 12 July 2001. From July 2001 the opponent felt very down. She was having a lot of anxiety attacks, nightmares, and flashbacks and felt suicidal on occasions. In 2002 she commenced consulting a psychotherapist on a weekly basis. 21 On 30 May 2002 the opponent reported the assault to Gosford Police. On this occasion she was prepared to press on with the complaint but the police did not take it any further. The plaintiff first sought legal advice on 19 December 2002 because the police would not take any action on her behalf. Between December 2002 and the filing of the Statement of Claim, the opponent consulted her solicitor and barrister on a number of occasions and the matter was prepared, including the obtaining of medical reports. 22 The opponent left school in 1989 and did a twelve-month clerical traineeship. She then obtained a diploma in travel. Thereafter the opponent has been in continuous employment, except for a short period while she studied. 23 It was the opponent's evidence that it was not until 2002 that she felt physically and emotionally well enough to pursue a claim in relation to the sexual assaults and that is why she reported the matter to the Gosford Police. In relation to the period 1990-2002, in her oral evidence the opponent said: "At that stage I wasn't really in control of myself. I can't say that I was actually aware that I had anything wrong. I was just not functioning and I wasn't mentally able to make certain decisions about my life." 24 In relation to the period 1990-1998 her mother gave this evidence: "Yes, Nicole was a very, very unhappy girl. She was - well we were really living one day at a time, because she was so unhappy and she - didn't know whether she was coming or going. She was just - she would ring me up and say, "Mum I don't know what's wrong, I just can't cope. Do you think you could come over?" I'd go over and talk to her, I took her to counselling and she was just a very very unhappy, very unhappy girl." 25 In an affidavit her sister, Kerrie, said that between 1990 and 1998 the opponent was always "down, depressed and hard to get on with". Kerrie recalled that in 1998 the opponent was having flashbacks of the abuse and that they had become more regular over a short period of time. In relation to the period 1991-1994 her sister, Deborah, said in an affidavit that the opponent had nightmares and would cry and hit the walls. She described the opponent as "very unhappy". 26 In support of the opponent's case there were medical reports from doctors who had treated her and in the case of Dr Morse, a doctor who had seen her for the purposes of the Notice of Motion. None of these doctors were required for cross-examination. 27 Doctor Cordowiner, a general practitioner who had treated the opponent between July 1999 and August 2001, described the opponent as presenting with a depressed mood and having difficulty coping with day-to-day occurrences. This was made more difficult because of her daughter's frequent illnesses. Doctor Cordowiner referred to the discharge summary from the St John of God Hospital which diagnosed the opponent as suffering from a major depressive disorder, a chronic post traumatic stress disorder, alcohol abuse and social stresses. 28 Ms Symonds is a clinical psychologist who treated the opponent between August 2000 and October 2001. At her initial presentation, the opponent reported that she had been experiencing flashbacks and nightmares for many years. These related to the ongoing sexual abuse which had occurred when she was a child. The opponent described herself as a "walking time bomb" with a low level of tolerance who worried about everything. Ms Symonds diagnosed the opponent as having symptomatology consistent with a post-traumatic stress disorder attributable to the sexual abuse experienced as a child. She thought that the opponent also displayed a number of traits suggestive of a borderline personality disorder. 29 Doctor Stone is a general practitioner. The opponent had attended the practice at which Dr Stone worked between 1972 and 1995. She had been seen on one further occasion on 24 March 2003. The opponent had disclosed the sexual assaults to Dr Stone in June 1990. Doctor Stone noted that the opponent had specifically requested that information concerning the sexual assaults not be recorded on her medical records because she was worried that other family members might find out. Doctor Stone commented on the "huge impact" which the opponent's disclosure of the sexual assaults had on her family. 30 Doctor Stone summarised her observation of the effect of the assaults on the opponent as follows: "Nicole has been greatly affected by the assaults. The severity of the impact of these events on Nicole's life should not be underestimated. There appears to be very little in Nicole's life that has remained unaffected. Her prognosis remains guarded. She has suffered at least one episode of severe depression requiring hospital admission as a direct result of these events. Further episodes of depression cannot be excluded at this time." 31 The opponent was seen by Dr Morse, a consultant psychiatrist, for the purposes of the Notice of Motion on 21 July 2004. Doctor Morse recorded the following description of the opponent's symptoms: "She says that her emotional state varies. She goes through periods when things aren't too bad and other periods when things are "shocking". When things are bad she feels "overwhelmed" and feels like she is "drowning" because of the pressures of living, her emotional state and concerns about her children. She says she has a very bad temper. When I asked about depression, she said that she gets in "a black hole". She has had a few suicide attempts and still thinks about this but has children now and tries to carry on. She says, however, she gets a period when she is very down and very depressed and there is no motivation, interest or enthusiasm and finds it difficult to cope with these at times and is worried that she will kill herself sometimes." 32 Doctor Morse's opinion was as follows: "Any sexual assault is a shocking occurrence but to occur at that age and within the confines and with the aid of a close family member it is a most shocking, distressing experience which not only causes the emotional response to a sexual assault with the feeling of degradation, abandonment, confusion and guilt but knowing that because it was her sister and the threats that were made that she could not have the support of her family. The emotional response through her teenage and adolescent and early adult years had been made worse because of her perception of the family not being supportive due to the sense of shame and the lack of belief especially in regard to her sister's involvement. This has further added to the sense of abandonment and led to increasing lowered self-esteem and deepening of her depression. She describes suffering quite severe depressive symptoms from at least the late teenage years. From her description and from what has been recorded in the reports above I have no doubt she suffered from quite definite major depressive illness . This has been recurrent and has been quite severe with feelings of despair, hopelessness, suicidal thoughts, marked sleep disturbance, a lack of motivation, interest and enthusiasm. She has been angry and irritable with problems relating to people. She has a marked sense of hopelessness and despair. Although one could state there has been intervening periods when this diagnosis could not be made and perhaps diagnosis of Dysthymia would be more appropriate I think that in my opinion the diagnosis would be an ongoing dysthymia, i.e. a constant at least low grade level of depression with little interest and enjoyment of life but with exacerbations of a more severe depressive illness the diagnosis being major depression. Given her recent history and her presentation at this time, I would currently make a diagnosis of major depression… It is difficult for a person who has had her background and suffers from a current depression and irritability and the personality factors that there have been ongoing difficulties in relationships both in terms of personal intimate relationships with her two husbands, with other family members and with friends. Unfortunately given her condition and the difficulties in relation with others is going to be an ongoing problem because of her tendency to withdraw, isolate herself with low self-esteem and lack of trust of others built up over time because of her past experiences …" 33 Her Honour's reasons for suspending the operation of the Act were as follows: "The doctors have not expressly commented on whether in their opinion the plaintiff would have been substantially impeded in the management of her affairs. However, I am satisfied that the medical evidence when read with the lay evidence presents a picture of a person overwhelmed by issues arising from the assaults. This has caused an ongoing depression fluctuating in severity over the whole of the period from her late teenage years until she saw a solicitor. She did have periods when her depression was less severe. But even at these times she continued to have difficulty coping with day-to-day events. When her depression deepened she was overwhelmed by her emotions. When the condition was most severe she attempted suicide in 1996 and 2001 and in 2001 was hospitalised. I take into account that a person unaffected by depression would have difficulty in deciding to sue a member of her family and a former brother-in-law in the circumstances. The effect on the family was likely to be severe and damaging. It was also likely that the standing of the family in the community would be affected. I am satisfied that it would be a very difficult decision for any person to make and to then pursue. To a person of lesser fortitude the decisions that would have to be made would I am satisfied seem overwhelming. I have no hesitation in finding that during the whole of this time the plaintiff's ability to manage her affairs in relation to this cause of action was substantially impeded by her mental condition. She did not have the capacity to make the important decisions that are required to instruct lawyers and conduct litigation. As she was depressed, she lacked the drive necessary to pursue matters effectively. The fact that she was able to attend at work and have children do not, in my opinion, lead to the inevitable conclusion that she was able to make difficult personal decisions and cope with matters outside her daily routine. The defendants have submitted that this condition, if it existed, ceased at around the time she was discharged from hospital in mid 2001. I reject this submission. She clearly had a clear psychiatric condition at the time. The hospital records do not suggest that the plaintiff had been "cured" at the time of discharge. She did not feel as though she gained incite into the assaults. She did not see a doctor or have other treatment in the period after she was discharged. It is much more likely that after her discharge her mental state gradually improved. While the plaintiff has not explained in detail the reason for deciding to see a solicitor in late 2002, it is reasonable to infer that she initially tried to make the police take action against the defendants. When they failed to do so in mid 2002 she finally was able to decide to instruct a solicitor in October 2002."

Submissions 34 The claimants did not contend that her Honour erred in principle or that she misapprehended or misapplied any principle of law. The sole basis for the application for leave to appeal and the appeal was that there was insufficient evidence for her Honour to find that the opponent had satisfied the necessary statutory basis. The claimants also accepted that there was evidence before her Honour of a mental condition and that the opponent had suffered psychological and psychiatric symptoms of some severity for more than one period over the years since the alleged assaults. 35 The complainants submitted that it was not open to her Honour to suspend the running of the limitation period under s 52 because there was insufficient evidence to support the making of such an order. They submitted that the evidence of the opponent and that of her mother and sisters was far too general and sought to cover in a couple of sentences a period of approximately twelve years. They submitted that this evidence had to be balanced against the fact that the conduct of the opponent in the management of her life for much of the period was competent. Despite the conceded emotional and psychological difficulties for periods, they submitted that her Honour had failed to take into account that the opponent between 1990 and 2004 had pursued her career as a travel consultant, had travelled overseas for work and raised her family. They submitted that there was no evidence of any specific inability or even difficulty experienced by the opponent in attempting to commence these proceedings. 36 The claimants pointed to the limitations of the evidence of Dr Morse. They submitted that he had seen the opponent only once and that was in 2004. His opinion was based primarily on what he was told by the opponent. On the basis of that information, he expressed an opinion which dealt with the opponent's condition over the preceding fourteen or more years. They submitted that even if he were able to express such an opinion, that opinion was to the effect that there were significant periods during that time when the opponent was experiencing mild depression only. 37 The claimants submitted that the evidence of Dr Morse went no further than to establish that there were periods during the preceding fourteen years during which the opponent was severely depressed and that there were periods when the depression was only mild. There was no evidence from him, nor from any other doctor, to the effect that at any time during the period the opponent was substantially impeded in the management of her affairs in relation to the cause of action by reason of that depression or any other impairment of her mental condition. Put another way, the opponent who carried the onus, had failed to establish that during the periods that she suffered from only mild depression, she had been substantially impeded by that condition in the management of her affairs in relation to the cause of action.

Consideration 38 This Court in Olive v Johnstone [2006] NSWCA 21 at [61] and in State of New South Wales v Harlum [2007] NSWCA 120 at [61] approved the following statement of principle by Slattery J in Kotulski v Attard [1981] 1 NSWLR 115 at 117-118:

"Section 11(3)(b) is concerned with two classes of person: "One who is incapable" (which conveys the concept of total inability) and the other "substantially impeded in the management of his affairs in relation to the cause of action … by reason of disease or impairment or physical or mental condition."

According to the Shorter Oxford Dictionary to "impede" means to obstruct in progress or action; to hinder or to stand in the way of. "Substantially", in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. "Mental condition" which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.

It seems to me that the expression "mental condition" is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words "unsound mind", which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said: "So here it seems to me in this statute a person is 'of unsound mind' when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do." I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action."

The complainants accepted this as a correct statement of principle and that her Honour was entitled to apply it provided there was evidence available to support such an approach. 39 The criticism of Dr Morse's opinion is not made out. On the basis of what the opponent had told him and as a result of the other medical reports which he had seen, he was entitled to express an opinion as to what the opponent's condition had been in past years. That issue was considered by this Court in State of New South Wales v Julianne Higgins by her tutor David Benedict O'Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244 at [20] where Handley JA said: "20 Both Mr Menzies for the State and Mr Marshall for Barnardos Australia challenged the inference that Dr Phillips and Dr Pakula drew from their observations of the plaintiff on examination and from the history oral and documentary they obtained, that her condition was manifest during the limitation period. There is no reason to think that the approach adopted by Dr Pakula and Dr Phillips would be regarded as inappropriate by other psychiatrists. Had this been the case, one would have expected there to have been evidence called to that effect. The State did have the benefit of a medical examination of the plaintiff by a psychiatrist but did not tender his report. 21 The approach adopted by these two psychiatrists is also perfectly permissible on legal grounds. In Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122, 137-8 Isaacs J said (citations omitted): "There is also a presumption of evidence that comes in aid of the defendants. The present existence of facts does in some cases operate retrospectively as evidence of former condition. It is not necessary to do more than cite three authorative examples. One is Bristow v Cormican where Lord Blackburn said 'The acts of ownership done in Lord O'Neill's time from 1837 to 1872 along his demesne would justify the jury in drawing an inference that similar acts had been done during the long interval from 1661 to 1837'. The next is Sanders v Sanders where the Court of Appeal held that payment of rents from 1864 to 1877 was, in the absence of evidence to the contrary, sufficient to support the inference of prior payments from 1833 to 1864. The third is even more direct, Doe v Fuchau , where the insufficiency of a distress on a certain date was prima facie evidence of an insufficient distress on an earlier date."" Handley JA also noted that this principle remained applicable under the Evidence Act 1995. 40 Since it was open to her Honour to accept the opinion of Dr Morse in its entirety, she did not err in finding in terms of s 11(3)(b) that throughout the period under consideration the opponent did suffer from an impairment of her mental condition. The question then remaining was whether the opponent was substantially impeded in the management of her affairs in relation to this cause of action in respect of the limitation period by reason of that impairment. 41 It is true that the opponent did not give evidence of having contemplated bringing civil proceedings within the period, although she did give evidence of an attempt to bring the matter to the attention of the police when she reported the assaults at the Bankstown Police Station in 1992. She gave evidence as to why she did not press charges and pursue the matter at that time. 42 The absence of such evidence is not decisive. This question was considered by Beazley JA in State of New South Wales v Harlum where her Honour said:

"73 It is not necessary for a party seeking an extension of the limitation period to give evidence in express terms of being substantially impeded in commencing an action during the time of claimed disability. That is the very matter which is the ultimate question for determination. Indeed, in another area of legal discourse, evidence by a party of the question to be determined, such as a statement by a plaintiff of reliance upon a misrepresentation, has been held to be of little assistance to the court and, under the Civil Liability Act 2002 (NSW), has been determined to be statutorily impermissible. Likewise, a statement by an applicant for an extension of the limitation period that he/she felt unable to give instructions to commence proceedings, would be of little assistance. The task for a trial judge on such an application is to determine, on the evidence, whether the respondent had satisfied the onus of establishing that he had a disability under s 11(3)(b)." 43 Similarly, it is not decisive that none of the doctors expressed an opinion in terms to the effect that by reason of her mental condition the appellant was substantially impeded in the management of her affairs in relation to the cause of action in respect of the limitation period. On the particular facts of this case, particularly those highlighted by Dr Morse and his opinion as to the effect of the assaults on the opponent, it was appropriate for her Honour to infer that the opponent would be substantially impeded in the management of this cause of action. 44 A consideration of this question must have regard to the nature of the particular cause of action. This was not an industrial accident or a motor vehicle accident where a decision whether or not to commence and continue with an action is relatively straightforward. The cause of action alleged sexual assault by a family member over many years in the context of a family with considerable prestige in the community and with a distinguished association with the police force. 45 It would take a person of exceptional robustness and strength of character to pursue such a claim in the civil courts even if that person were not suffering from an impairment of her mental condition. Her Honour recognized that fact in her judgment and Beazley JA referred to its significance in Harlum: "94 The State's approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim. 95 Even if a person is able to fulfil each of the requirements contained in the State's approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person's mental condition." 46 In the light of the evidence of Dr Morse and Dr Stone as to the devastating effect of these assaults on the opponent, it was correct for her Honour to find that the opponent was substantially impeded in making such a difficult decision by reason of her depression and other psychological problems. 47 It is true that her Honour's reasons (see [33] hereof) were condensed and perhaps overstated the medical evidence when she said that it presented a picture of a person "overwhelmed by issues arising from the assaults". Nevertheless, the medical evidence was all one way and was more than sufficient to allow inferences to be drawn favourable to the opponent. It is clear that her Honour did engage in a process of inferential reasoning from the medical evidence in reaching her conclusion. 48 The fact that the opponent's mental condition fluctuated between a "major depressive illness" and a "low grade level of depression with little interest in enjoyment of life" over the years is not decisive. The fact that she was able to maintain employment and raise two children (although it is clear that she received considerable help from her mother in that regard) is also not decisive. From the psychiatric evidence it was well open to her Honour to find, as she did, that the opponent was substantially impeded by her mental condition in the management of her affairs in relation to the cause of action. Such a conclusion was not only open to her Honour but was clearly correct. This is particularly so when to commence and maintain the cause of action required in the circumstances of this case, such a difficult and emotional decision by the opponent with potentially devastating repercussions for her family. 49 I have concluded that the claimants' challenge to her Honour's judgment, i.e. that there was insufficient evidence to justify it, has not been made out. 50 Because of the complexities of these sections of the Act, and the difficulties associated with applying them, I consider that leave to appeal should be granted but for the reasons stated above, the appeal should be dismissed. 51 The orders which I propose are as follows:

(1) Leave to appeal granted. (2) The appeal be dismissed with costs.

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