Benjamin Luke Brown v Richard Haureliuk  ACTSC
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
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
What is a 'disability' for the purposes of s30?
Section 30(1) of the Act provides that if:
'a person has a cause of action; andM/li>
the limitation period is fixed by this Act for the cause of
action has begun to run; and
the person is under a disability; then -
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
'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
'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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).