Challenge to trial judge's decision
69 The State accepts that the medical evidence established that the respondent was suffering from a psychological condition. Senior counsel for the State contended, however, that the respondent had failed to establish that he was substantially impeded in the management of his affairs in relation to the cause of action. In the first place, it was submitted that on the respondent's own evidence, the reason that he had not commenced proceedings was a financial one. The State relies upon the respondent's answer in cross-examination, that when he was first advised by Mr Terracini that he could claim compensation, he was fit and well enough to do that. The State contends that his financial circumstances were the true, and as I understand the submission, the only, cause of his failure to commence proceedings.
70 The respondent's answer to the question whether he was fit and well enough to commence proceedings was not a simple agreement with the question asked. Rather, he said, "I was at the time, yes". However, within a very short period of time after that, the police harassment commenced. This is of particular significance, as a disability for the purposes of s 11(3)(b) may arise during the course of the running of the limitation period and does not need to exist at its commencement, provided that the respondent otherwise brought himself within the provisions of s 11(3)(b). The fact that he was not suffering from a disability at one or other times during the limitation period was not determinative of the question whether the limitation period had or had not been suspended. On the medical evidence accepted by the trial judge, the respondent was severely incapacitated by feelings of fear, anxiety, apprehension and probably depression in such a degree as to suspend the running of the limitation period, as found by the trial judge: see Dr Westmore's evidence at [49] above.
71 The State next says that there was a gap in the proof in the respondent's case that he was suffering from a disability. In particular, it was submitted that there was no evidence from any of his solicitors that they were unable to obtain instructions from him, there was no direct statement by the respondent himself that he could not instruct solicitors, nor was there any evidence from Mr Terracini that would indicate that the respondent was incapable of giving instructions to commence proceedings. Although it is correct that there was no such evidence, on the only occasion between the time of his acquittal and his return to Sydney that Mr Terracini saw the respondent, namely, during the course of the interview with the officers from the Wood Royal Commission, Mr Terracini said that:
"From information given to me [by the respondent] and his actions and presentation, I believe that he believed there was a real risk of serious harm and that he was very scared."
72 This is powerful evidence corroborative of the respondent's fears and mental state at that time from an experienced legal practitioner who had earlier acted for him and who thus had some knowledge of the respondent and was in a position to make such assessment. The evidence was not challenged.
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).
74 The State next submitted that there was an incongruity in his Honour's finding that the respondent's disability ceased on 1 January 2000. It is apparent from his Honour's reasons that the chosen date was somewhat arbitrary, reflecting the time at about which the respondent found himself capable of seeing a solicitor. However, there is no error in approaching an application to extend the limitation period in that way. Indeed, the legislation effectively requires it. In any event by the very nature of a mental condition, it is unlikely, if not improbable, that a person will totally and finally cease being substantially impaired on a specific date. The enquiry under the legislation is to determine whether a person is under a relevant disability and if so, for what duration. In my opinion, it is sufficient for a court to determine a duration of disability up to a certain point, notwithstanding that there may thereafter be some ongoing disability. Once that point is ascertained, s 52 provides that the limitation period is suspended during the period of the disability.
75 The State also submitted that his Honour's conclusion must be erroneous because, according to Dr Westmore, whose evidence was accepted by his Honour, the respondent's impairment had not passed. Rather, Dr Westmore's evidence was that the respondent was still suffering "from a major depressive illness of moderate to severe intensity", which required "urgent psychiatric intervention" and that he continued to be psychiatrically disturbed. Dr Gertler's evidence of 2002 was to like effect, namely, that the respondent was chronically depressed and that his post traumatic stress disorder had stabilised. Senior counsel for the State submitted, somewhat rhetorically, that if the respondent was able to pursue his rights in 2000, but still suffered from the same condition in both February 2002 and March 2005, it would follow that his psychiatric condition did not have the necessary causative effect and was not the reason that he failed to pursue his alleged legal rights.
76 That question needs to be considered with the other challenges that the State makes to his Honour's findings in respect of the medical evidence. These challenges are contained at [68] of the appellant's written submissions. In essence, the appellant submitted that in quoting from Dr Westmore's report in which the respondent is quoted as saying "I choose to forget most of [the events that had happened]", his Honour apparently overlooked the fact that the respondent had not in fact forgotten and was able to give a full account to doctors and also gave a detailed interview to officers from the Wood Royal Commission, as early as 1995.
77 It appears that the State's challenge to this aspect of his Honour's reasoning was that Dr Westmore's opinion was not based upon an appropriate history and accordingly should not have been accepted. However, Dr Westmore acknowledged, under the heading "Mental State Examination", that the respondent "presented as being an alert and attentive historian". That was his presentation at all his psychiatric examinations, although Dr Champion, in particular, noticed that the respondent's recall of dates was not particularly acute. But in any event, I am of the opinion that the State's focus on the respondent's remarks takes the remarks out of context and places unwarranted emphasis upon them. In the first place, the respondent reported in very general terms on matters relating to his period of imprisonment and their effect on him. Secondly, it is not inconsistent for a person to say that the person "chooses to forget most" of a traumatic episode or series of events. Indeed it is a very natural coping mechanism. That does not mean that a person does not in fact have a recall of those events and can in fact recall them when required to do so.
78 Reference was next made to his Honour's observation that Dr Westmore recorded that the respondent told him that he didn't talk to customers, as he would abuse them. Senior counsel for the State referred to the respondent's evidence, where he said that when he was in Albury, he was capable of handling the interplay between himself and customers. The thrust of this submission was that the history given to Dr Westmore was wrong, so that Dr Westmore's opinion should not have been accepted.
79 However, the respondent's evidence (at Tr 23-24) cannot be looked at in isolation. The respondent also gave the evidence which is set out at [29] above. In my opinion, when the evidence is considered in its totality, there is no fundamental inconsistency in the history given to Dr Westmore and his evidence before the Court. The evidence to which I have just referred, which was apparently accepted by the trial judge, revealed that the respondent was really only coping when in Albury and that he has a barely subsurface anger which was easily aroused even in the formal atmosphere of the court room. It would not be unexpected, therefore, that the respondent might "shout" at customers from time to time. I do not therefore consider that there was any fundamental inconsistency between what the respondent said to Dr Westmore and his evidence. Further, although the cross-examination was designed to undermine the respondent's case that he was under a disability, including by seeking to establish that the history he gave to Dr Westmore was not accurate, he was not directly challenged on the history he gave Dr Westmore. No error on the part of his Honour has been demonstrated as alleged in this submission.
80 Complaint was next made that his Honour failed to refer to that part of Dr Westmore's report in which Dr Westmore described the respondent as presenting as an alert and attentive historian, a matter to which I have already referred. Presumably, this submission was directed at establishing that contrary to Dr Westmore's opinion and his Honour's finding of relevant disability, the respondent was not substantially impeded in the management of his affairs in relation to the cause of action. If he was alert and a good historian, presumably he had the necessary mental capacity and ability to commence his cause of action. However, that alone is not the test. More importantly however, I am not satisfied that his Honour overlooked any relevant aspect of the evidence. At [57], Kirby J recorded Dr Westmore's view that there was no clinical evidence of organic cognitive impairment affecting the respondent. If there was no cognitive impairment, it would not be surprising that he was an alert and attentive historian. In my opinion, no error has been shown in the failure to record this part of Dr Westmore's report.
81 The next challenge made to his Honour's reasons is in respect of [59], where his Honour set out that part of Dr Westmore's report in which he expressed the opinion that the respondent fell within the definition of "disability" in s 11(3)(b) of the Limitation Act. It was submitted that that opinion was given without there being any reference in Dr Westmore's report to the occasions in 1995, 1998 and 1999, when the respondent had been able to give detailed information to police as to what had occurred. As I understand this submission, it is that as the respondent was able to provide information to police on three separate occasions of matters, which, upon a proper analysis, were the basis of his cause of action, there could have been no impediment upon him giving the same information to solicitors.
82 It appears that the thrust of these submissions is that the facts as proved in the case were inconsistent with the facts reported to Dr Westmore, so it would thereby follow that Dr Westmore's opinion that the respondent had a disability within s 11(3)(b) was undermined. However, the State did not require Dr Westmore for cross-examination. Whilst it might be open to a party to rely upon absences in an expert report to demonstrate that its cogency was thereby undermined, that approach carries with it its own tactical downsides.
83 The first is that the evidence of the witness thereby goes unchallenged. A court need not accept evidence which is not challenged, but may do so. A party who has failed to challenge evidence, particularly expert evidence, is thereby at a serious disadvantage on appeal in seeking to demonstrate that the evidence should not have been accepted. In my opinion, it cannot be assumed that simply because Dr Westmore did not refer to the occasions when the respondent was interviewed by police, and may not have known of them, that his opinion is thereby undermined. The circumstances of providing information to the police, upon which the State relies, were very different from those which are relevant to the question as to whether a party was substantially impeded in the management of their affairs in relation to the cause of action, under s 11(3)(b).
84 Except for two occasions that the respondent spoke to the police, he was approached by the police. On one of these two occasions, the respondent went to the police on behalf of the person who owned the farm, to pay outstanding warrants. Whilst he was co-operative in giving information, he did not initiate the contact, or, in the case of paying the warrants, was not involved in any ongoing legal process. As to the other occasion when the respondent contacted the police, he made a single telephone enquiry. The commencement of a cause of action involves significant initiative and ongoing attention. His Honour was aware of each of the occasions on which the respondent had contacted the police. He was required to assess that evidence, along with all the other evidence, including the evidence of the medical practitioners. In my opinion, it has not been established that his Honour overlooked this evidence.
85 Further, there was no challenge to Dr Westmore's diagnosis, namely, of a Major Depression. The Diagnostic and Statistical Manual of Mental Disorders (4th ed) (DSM-IV) indicates that one of the features of a Major Depression may be an inability to make major decisions (p 350). But, in any event, Dr Westmore was of the opinion that during the relevant period, the respondent was "severely incapacitated by feelings of fear, anxiety, apprehension and probably depression". The respondent gave direct evidence of the extent of his fear and the level of fear reported by the respondent whilst being interviewed by the officers from the Wood Royal Commission, was corroborated by Mr Terracini. In my opinion, there is no substance in the State's challenge to his Honour's judgment on this point.
86 It was open to his Honour to accept the evidence of Drs Westmore and Gertler and no error has been shown in his failing to set out those parts of their reports, the absence of which has been the subject of complaint. Nor has the State successfully undermined the opinions expressed in those reports in a way that involved error in the trial judge's acceptance of them.
87 The next challenge was made to [61] of the judgment, where his Honour quotes from Dr Gertler's report. That passage is already set out at [50] above. Senior counsel for the State submitted that his Honour failed to refer to that part of Dr Gertler's report which again described the respondent as an alert, co-operative man. I have already dealt with a similar complaint in relation to Dr Westmore's report. There was no suggestion in the respondent's case that he had been cognitively impaired as a result of his mental condition. There was, therefore, no particular reason to refer to it.
88 It was submitted that his Honour at [64]-[65], appeared to accept the submission made on behalf of the respondent that Dr Champion, in the passage set out at [55] above, had stated a far higher test for "disability" than was provided for under the Limitation Act. The State submitted that Dr Champion's statement did not suffer from the "vice of an attempt to fit legal definition" but, rather, it looked at the impact that the events had had upon the respondent and that Dr Champion had expressed the view that his adjustment disorder would not have prevented him from "reasoning normally about the matters relevant to his potential cause of action and, inter alia, giving instructions about any cause of action".
89 In my opinion, Dr Champion did not state the test in accordance with the provisions of the section and, in particular, did not consider whether or not the respondent was substantially impaired in the management of his affairs in relation to the cause of action. But, even if Dr Champion's opinion is properly to be understood as meaning that he did not satisfy the test prescribed by s 11(3)(b), that is not the end of the matter. Dr Champion's opinion was different from the opinion expressed by Dr Westmore. However, the trial judge was entitled to accept the evidence of Dr Westmore, unless the State was otherwise able to demonstrate that Dr Westmore's opinion was not well based. For the reasons I have already given, I do not consider that the State has done so.
90 Finally, it was submitted that his Honour adopted the wrong approach in determining whether the respondent had established that he had a disability. It was submitted that his Honour should have undertaken an analysis of what would be necessary to run a case. It was submitted that his Honour should have analysed the matter on the basis of determining whether the respondent: (1) appreciated that something had occurred which might give rise to a claim; (2) could make a decision to instruct a lawyer; (3) could recite the facts or point to where the facts could be ascertained; (4) could understand advice and provide instructions; and (5) see an expert doctor to provide evidence. It was submitted that the evidence demonstrated that if each of these questions had been asked in respect of the respondent, an affirmative answer would have been given to each question. This submission was partnered with a submission that his Honour's reasoning at [69] was wrong as a matter of principle and his factual findings at [70] were erroneous: [69] and [70] of his Honour's judgment are set out at [57] above.
91 The difficulty with the State's submission is that it effectively constructs a template against which the respondent's claim is to be adjudged and which appears to require serial satisfaction. A 'test' constructed in that way is seriously misleading. If each question is asked in isolation, the answer to each may well be in the affirmative, as the State submitted. For example, if the first question was posed in this case: "did the respondent appreciate that something had occurred which might give rise to a claim" the answer, probably, would be "yes". Likewise, if the second question was posed, "could the respondent make a decision to instruct a lawyer", the answer may be "yes", although I would have to say that would be more problematic than the first. However, an answer to the third question, on the evidence in this case, would almost undoubtedly be "yes", and so on.
92 On this approach, the State would contend that when the 'template' was complete, it would be full of affirmative answers, or mostly affirmative answers and that would provide the answer to the question that the court had to determine. However, seeking the answers to a series of questions in this way fails to grapple with the statutory requirements of s 11(3)(b). As Slattery J pointed out in Kotulski at 118, the enquiry under the section is directed to determining whether the person claiming to be under the relevant disability is 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" (emphasis added).
93 In my opinion, the State's serialisation of questions provides a false simplicity to the determination of the question of whether the person is "substantially impeded in the management of his or her affairs in relation to the cause of action" within the meaning of s 11(3)(b) and omits the fundamental aspect of being able to "reason normally" about the various aspects that are involved in bringing a claim.
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.
96 That then brings me back to [69] of his Honour's judgment. In my opinion no error of principle has been shown in his Honour's approach. The matters raised by his Honour in that paragraph reflect, in the particular circumstances of the respondent, what Slattery J considered in Kotulski was needed to be assessed, that is, "how a reasonable person without any impairment would conduct himself in the management of his affairs". In the particular circumstances of the respondent, Kirby J considered that a rational person would resume his relationship with his children and seek redress for the ordeal he had undergone. The second of these matters is self-evident. In the respondent's case so was the first. His actions in relation to his family were relevant to an overall assessment of the question whether the respondent was suffering from a disability.
97 It was next submitted that his Honour made an error of fact in [70] when his Honour found that the respondent had not resumed his relationship with his children and had left his sons. This was said to be factually wrong, because the respondent had returned to his family. This submission fails to deal with the whole of his Honour's postulation of what a rational person would do. His Honour's assessment of what a person who was not relevantly disabled would do was to resume "and maintain" a relationship with his or her children. The evidence established that he had not been able to do so because of his deep fear that his children and the children of his relatives, would be harmed. That part of the State's submission should be rejected.
98 It was also submitted that the respondent leaving Sydney without explanation was not a matter which went to his mental state, but rather, was an action taken by the respondent to protect his children. I have already dealt with this in various ways above. The respondent gave compelling evidence at the trial of the effect his fear for his children had on his mental state.
99 In my opinion, no error has been shown in the trial judge's reasoning. Accordingly, I propose the following Orders: