Ireland v Wightman – Extension of time in personal injury matters
In South Australia legal proceedings seeking damages for personal injury must be commenced within three years of the cause of action accruing. In the vast majority of personal injuries cases founded in tort the limitation period expires on the third anniversary of the date upon which the negligent event occurred.
In claims for personal injury courts have a discretion to extend the limitation period when:
- The action is commenced within twelve months of the plaintiff ascertaining previously unknown “facts material” to his or her case; or
- The failure to commence the action within time was due to the defendants’ representations or conduct; and
- The court is satisfied that in all the circumstances of the case it is “just” to grant the extension of time.
Section 48(3a) of The Limitation of Actions Act 1936 (SA) [the Act] stipulates that facts are material if they:
- Form an essential element of the plaintiff’s cause of action; or
- Would have major significance on an assessment of the plaintiff’s loss
The Act lists a number of facts that might satisfy the criteria.
The recent South Australian Supreme Court decision in Ireland v Wightman discusses the qualifying requirements contained in the Act before a court will favourably exercise its discretion to extend the time for the commencement of proceedings in personal injuries cases.
The judgment of Blue J. followed an appeal from the decision of a Magistrate who granted an extension of time to a plaintiff injured in a motor vehicle collision.
On 13 February 2005 Wightman was a rear seat passenger in his own motor vehicle being driven by Ireland when it collided with an oncoming vehicle.
Ireland was 14 years of age and unlicensed at the time of the collision.
On 11 August 2011 Wightman commenced proceedings in the Magistrates Court seeking damages for personal injury and loss. Wightman’s physical injuries included a dislocated right shoulder and a fractured left wrist. He also claimed to have suffered an Adjustment Disorder with anxiety.
As the claim was commenced some three years and six months after the limitation period had expired, Wightman sought an extension of time pursuant to s48 of the Act. Wightman claimed that he did not commence proceedings within time because he feared reprisals from Ireland’s family. He claimed it was not until November 2010 that he learnt that an insurer and not Ireland personally would respond to his claim.
In support of his application for an extension of time Wightman relied on opinions contained in a medical report to the effect that he was suffering a recognised psychiatric illness as a result of the collision and that he was still suffering emotional and psychiatric effects. Wightman read the report in April 2011 and commenced proceedings four months later.
The application for an extension of time was heard by the Magistrate as a preliminary issue. In granting an extension of time the Magistrate found that the facts learned by Wightman from reading the medical report formed an essential element of his cause of action and would have major significance on an assessment of his loss.
Issues on appeal
The Motor Accident Commission [MAC] on Ireland’s behalf appealed against the Magistrates order. The MAC did not dispute that the psychiatric diagnosis comprised or evidenced a fact within the meaning of s48(3)(b)(i) of the Act nor was it disputed that Wightman commenced proceedings within twelve months of learning those facts. The issues on appeal were whether the facts learnt formed an essential element of the cause of action and/or would have major significance on the assessment of Wightman’s loss.
The MAC contended that the facts learned by Wightman when he read the medical report did not go to an essential element of his cause of action namely duty of care, breach of duty and causation of loss. The MAC argued that the facts merely gave rise to an additional head of loss.
Wightman argued that the suffering of an Adjustment Disorder with anxiety was an essential element of his cause of action and that he only learnt of that fact in April 2011.
In considering what constituted an “essential element” of the plaintiff’s cause of action Blue J. described the “vertical elements” of the cause of action all of which must be satisfied by the plaintiff to succeed and the “horizontal elements or strands” of the cause of action the existence of which established the essential vertical elements.
Blue J. outlined a number of examples to illustrate this dichotomy. In the case of a claim for personal injury caused by negligence, an essential element of the cause of action is breach of duty. But that element might encompass multiple “horizontal” allegations of negligence not all of which might be proved. The essential vertical element of the cause of action was satisfied when one or more of the horizontal elements were established.
Similarly in relation to the essential causation of loss element Blue J. observed that sometimes a plaintiff may suffer only a single head of damage as a result of the defendant’s negligence but that it was more common in a personal injury claim for a plaintiff to suffer multiple heads of damage. He observed that a plaintiff may recover damages for some but not all of the heads of damage claimed. Despite failing in relation to some heads of damage, the essential causation of loss element was established.
Essential element of the plaintiff’s cause of action
Blue J. reasoned that Wightman’s claim included “parallel causation of loss”. Ireland’s negligence caused a collision which in turn caused a physical injury which in turn led to loss. Equally the negligence and the collision caused a psychiatric injury and consequent loss. The fact that Wightman suffered a psychiatric injury comprised an element of his cause of action.
Wightman had always known that Ireland’s negligence had caused his physical injury however it was not until April 2011 that he learnt of the new “parallel” element of the cause of action namely that he had suffered a psychiatric injury. The question to be answered was whether the suffering of an Adjustment Disorder with anxiety formed an “essential element” of the cause of action.
Blue J. determined that an “evaluative judgment” was required having regard to “the plaintiff’s knowledge at the time of learning the new fact and involved weighing the strength and importance of the new strand against that of the existing parallel strand or strands of which the plaintiff was already aware”.
Blue J. reiterated the common law principle that there is a single indivisible cause of action for all loss and damage suffered by personal injury caused by negligence. The fact that Wightman learned that he had suffered additional loss over and above his physical injury could not as a matter of common law be characterised as relating to an essential element of his cause of action. Blue J. found that the common law position survived the codification of the law of negligence and the inclusion of specific provisions relating to damages for mental harm in the Civil Liability Act 1936 (SA).
He concluded that learning he had suffered a psychiatric injury did not form an essential element of Wightman’s cause of action and did not satisfy section 48(3a)(a) of the Act.
Major significance on an assessment of the plaintiff’s loss
Blue J. rejected the MAC’s contention that “major significance” meant that the impact of the fact must be high in both relative and absolute terms. In finding that the court is required to perform an evaluative exercise to determine whether the fact would have a “major significance” on an assessment of the plaintiff’s loss Blue J. said – “It is simply a matter of weighing holistically the significance of the fact on the assessment considering its relative and absolute impact on the assessment of loss”.
Having regard to the language contained in the examples of those facts which might be material Blue J. observed that the relative impact of the fact on an assessment of the loss appeared more important than the absolute impact.
Based on the plaintiff’s evidence and the medical report Blue J. concluded that Wightman’s award of damages for his combined physical and psychiatric injuries would be at least 50% and possibly as much as 100% higher than an award of damages for his physical injuries alone.
Consequently the new fact had a major significance on an assessment of Wightman’s loss and was therefore a fact material to his case.
Exercise of the discretion
In addition to satisfying the “facts material” criteria a court must also be convinced that “in all the circumstances of the case it is just to grant the extension of time”.
Section 48(3b) of the Act sets out the matters to which a court should have regard when exercising this broad discretion. Those matters are:
- The period of extension sought and whether the passage of time has prejudiced a fair trial;
- The desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums;
- The nature and extent of the plaintiff’s loss and conduct of the parties;
- Any other relevant factor.
The MAC contended that the defendant would be prejudiced by the passage of time and by the fact that Ireland by reason of a mental disability would not be able to give evidence meaning that the defendant would be obliged to rely on the failing and incomplete recollections of witnesses.
Blue J. considered that section 48(3b)(a) of the Act was concerned with prejudice due to the passage of time since the limitation period expired, not prejudice by reference to the date upon which the cause of action arose. He considered it would be extremely unlikely there was any further failing of the memories of any relevant witnesses since the limitation period expired.
The extent of prejudice due to faded memories since the cause of action accrued was a matter to be considered under section 48(3b)(d).
Blue J characterised the risk of prejudice to the defendant by reason of the passage of time and its effect upon the memory of relevant witnesses as “intangible prejudice”.
The MAC further argued that the defendant would be prejudiced because the plaintiff’s GP could not locate the plaintiff’s medical records for a period between 2005 and 2007 and because certain employment records had not been received from the plaintiff’s employer. Blue J rejected these contentions and found that the defendant would not suffer significant prejudice as a result of the passage of time.
Blue J. concluded that the Magistrate had wrongly decided that the facts learnt by Wightman in April 2011 formed an essential element to his cause of action. He upheld the Magistrate’s finding that the facts learnt would have a major significance on an assessment of Wightman’s loss and that in all the circumstances it was just to grant an extension of time.
The appeal was dismissed.
Ireland v Wightman demonstrates the quite distinct and separate questions that arise when considering an application for an extension of time. The applicant must first satisfy the “facts material” criteria. Then and only then the second question namely the exercise of the court’s discretion arises.
The onus to establish the criteria and satisfy the court that the discretion should be exercised rests on the applicant.
It is not uncommon for plaintiff’s seeking an extension of time to rely on opinions expressed in medical reports to satisfy the “facts material” criteria contained in the Act. The findings consequent on a medical assessment in relation to the effect of physical disability upon the capacity of a person to function is generally speaking a fact material to the issue of damages even when the plaintiff is aware of the disability .
Defendants and their insurers may well argue that compliance with the limitation period is no more than a procedural irritant to a plaintiff given the seemingly low threshold to be satisfied to obtain an extension of time.
Whilst the defendant’s most compelling arguments in response to an application to extend time generally relate to the issue of prejudice, defendants should not underestimate the potential value of a comprehensive investigation in relation to the qualifying criteria relied on by a plaintiff. In that regard due consideration should always be given to the chronology of events having regard to the periods set out in the Act within which the “facts material” must be ascertained by a plaintiff, the adequacy of the plaintiff’s pleadings and disclosure in relation to those facts.
On the issue of prejudice, it is not enough for a defendant to simply assert that it has lost the benefit of the limitation period. A court will not infer that a defendant is prejudiced by the late commencement of proceedings. The defendants’ prejudice must go beyond the “intangible prejudice” as described by Blue J.
Date: 1 October 2013