Australia: Suspension of limitation period as a result of a disability

Legal Directions
Last Updated: 17 March 2011
Article by Kilifoti Eteuati

Benjamin Luke Brown v Richard Haureliuk [2011] ACTSC 9

In this recent judgment, Master Harper of the ACT Supreme Court found the plaintiff to be under a disability in accordance with s30 of the Limitation Act 1985 (ACT) ('the Act'), suspending the limitation period for the duration of that disability. His Honour, in coming to this conclusion, held that the word 'disability' in s30 was not restricted to legal disability.


The plaintiff was a front passenger in a vehicle which was rear-ended by the defendant on 30 November 2005 ('the accident'). He went to work the next day as a casual labourer. He continued to engage in that employment until April 2008. The plaintiff first sought medical advice with respect to neck pain on 5 June 2008, over two and a half years after the accident.

The plaintiff first instructed lawyers on 25 May 2009 and proceedings were commenced on 9 June 2009. The relevant limitation period under s16B of the Act was three years. The defendant therefore pleaded the claim was statute barred, on the basis that proceedings were commenced six months and eight days after the limitation period expired.

The Court has no power to extend the limitation period in relation to a cause of action to which s16B applies.

On 16 December 2010 the plaintiff applied for a declaration that the running of time for limitation purposes be suspended between 6 June 2008 and 20 May 2009, by reason of disability on behalf of the plaintiff.


In support of the application, the plaintiff provided two affidavits, and relied on reports of Dr Knox, psychiatrist, and Dr Brooder, neurologist. The defendant relied on the reports Dr Roldan, clinical psychologist, and Dr Mellick, neurologist.

The information seen to be of relevance to the application included the plaintiff reporting he was diagnosed with ADD as a child; that his mother died from a routine heart operation when he was five; he had been in trouble with the police between 1997 and 2008; he was told by a surgeon at the Canberra Hospital on 7 June 2008 that he required surgery to his cervical spine; that he was charged with property damage in November 2008; and stated

'I went through a rough patch between June and December 2008. I felt pretty low and down and became a heavy drug user...I just tried to ignore my neck pain and the advice by Dr Khurana because I did not want to face it.'

What is a 'disability' for the purposes of s30?

Section 30(1) of the Act provides that if:

  1. 'a person has a cause of action; andM/li>
  2. the limitation period is fixed by this Act for the cause of action has begun to run; and
  3. the person is under a disability; then -
  4. the running of the limitation period is suspended for the duration of the disability.'

His Honour noted that while the word 'disability' was used elsewhere in the Act, it was not separately defined. He held that 'disability' with respect to s30(1)(d) had the same meaning as the defined expression 'under a disability'. The defined expression provides at (b)(i), that a person is under a disability:

'while the person is, for a continuous period of 28 days or longer, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in relation to the limitation period for which the question of disability arises because of mental illness or disorder.'

In finding that 'disability' in s30 was not restricted to legal disability, his Honour regarded himself bound by the New South Wales Court of Appeal decision of State of NSW V Harlem (2007) NSWCA.

That matter involved an application to extend the time within which to commence proceedings pursuant to s52 of the Limitation Act 1969 (NSW) ('NSW Act'), which is couched in almost identical terms to s30 of the Act. Section 11(3)(b) of the NSW Act contains an identical definition for a person 'under a disability' to that in the Act.

Master Harper considered he was required to determine on the facts whether the plaintiff came within the defined expression 'under a disability', as held by the trial judge in Harlum, which was subsequently affirmed by the majority in the New South Wales Court of Appeal. In applying Harlum, Master Harper held at that:

'For the purpose of the present application I am satisfied that the plaintiff did suffer from a mental disorder, and that he did so for a period of at least seven months commencing in mid-2008. I am satisfied that for that period he was substantially impeded in the management of his affairs in relation to his cause of action. I am satisfied that he lacked the capacity and the willpower to make rational decisions about seeing a solicitor and starting proceedings. He was during that period unable to reason normally about the matters relevant to his potential cause of action, to understand and consider advice, and to give instructions about such action. I am accordingly satisfied that the running of the limitation period was suspended for at least a period commencing on 8 June 2008 and ending on 9 January 2009. It follows that the action was commenced with time. A declaration will be made to that effect.'

His Honour also found that while the plaintiff in Harlum suffered a psychiatric condition which was caused by the events that gave rise to his cause of action, that 'there is plainly no necessity that such a causal connection be established'. In coming to his conclusion, the plaintiff's affidavit evidence was accepted, and Dr Knox's opinion preferred over that of Dr Roldan.


His Honour has confirmed that 'disability' in s30 of the Act is not restricted to a legal disability, and that for the purposes of s30 one must establish that they come within the defined expression, 'under a disability'.

For any relevant application, the decision of Harlum is to be followed. On this background, for a plaintiff to successfully make an application to suspend the limitation period pursuant to s30, they will need to establish that at any time during the course of the limitation period (for a period of 28 days or longer), they had a mental illness or disorder that substantially impeded the management of their affairs in relation to the cause of action. Further, such an illness or disorder need not be causally related to the events that gave rise to the cause of action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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