Flemming v Gibson[1997] QCA 446

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 2523  of 1997

Brisbane

[Flemming v.  Gibson & Anor]

BETWEEN:

KYM MAREE FLEMMING

(Plaintiff) Appellant

AND:

NEAL GIBSON

(First Defendant) First Respondent

AND:

THE NOMINAL DEFENDANT

(Second Defendant) Second Respondent

McPherson JA

Williams J

Lee J

Judgment delivered 19 December 1997

Separate judgment of each member of the Court, all concurring as to the orders made.

APPEAL DISMISSED WITH COSTS

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 2523  of 1997

Brisbane

Before  McPherson JA

Williams J

Lee J

[Flemming v.  Gibson & Anor]

BETWEEN:

KYM MAREE FLEMMING

(Plaintiff) Appellant

AND:

NEAL GIBSON

(First Defendant) First Respondent

AND:

THE NOMINAL DEFENDANT

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 19 December 1997

I agree with Lee J., for the reasons he gives, that this appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 2523  of 1997

Brisbane

Before  McPherson JA

Williams J

Lee J

[Flemming v.  Gibson & Anor]

BETWEEN:

KYM MAREE FLEMMING

(Plaintiff) Appellant

AND:

NEAL GIBSON

(First Defendant) First Respondent

AND:

THE NOMINAL DEFENDANT

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 19 December 1997

Having considered the material in the record, the reasoning of the learned primary judge, and the reasoning of Lee J in this court (whose reasons I have read in draft) I am not persuaded that the learned primary judge erred in refusing to extend the relevant limitation period pursuant to s. 31 of the Limitation of Actions Act 1974.  It follows that I agree that the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 2523  of 1997

Brisbane

Before  McPherson JA

Williams J

Lee J

[Flemming v.  Gibson & Anor]

BETWEEN:

KYM MAREE FLEMMING

(Plaintiff) Appellant

AND:

NEAL GIBSON

(First Defendant) First Respondent

AND:

THE NOMINAL DEFENDANT

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - W C LEE J.

Judgment delivered 19 December 1997

This is an appeal from an order made in the Supreme Court at Townsville on 25 February 1997 dismissing an application pursuant to s. 31 of the Limitation of Actions Act 1974.

(“the Act”), for an extension of time within which to institute proceedings in respect of personal injuries sustained by the applicant on 15 August 1984 so that the time would expire on the day after the issuing of the writ on 15 December 1995.

The appellant was born on 21 July 1974 and was only 10 years old at the time of accident.  By virtue of s. 29, the three year limitation period within which to bring an action for damages in respect of personal injuries is extended so that the limitation period expires three years after the person reaches 18 years, the age of majority.  She turned 18 on 21 July 1992 so the limitation period in respect of the accident expired on 21 July 1995.  As indicated, the writ was issued on 15 December 1995, some five months after the expiry of the limitation period.

The appellant and her sister, who was three years younger, were injured by a motor vehicle as they crossed the road outside their primary school in Townsville on 15 August 1984.  They had just alighted from a bus which was stationary on the roadway in front of the school.  They ran around behind the bus and across what is described as a pedestrian crossing on Allambie Road, Townsville.  The respondent was driving a small truck in the opposite direction.  There is evidence which suggested that the two children came into contact with the side of the truck. 

The appellant was taken to hospital where, according to a report of the Deputy Medical Superintendent Dr K Jaumees dated 1 October 1985, she remained until 3 September 1984.  X‑rays showed a biparietal fracture of the skull with some depression on the left side and maximal contusion and cerebral oedema.   Following her discharge she was regularly reviewed in the new surgical out-patients area where she was last seen on 11 March 1985.  According to three reports of Dr Rossato, Consultant Neurosurgeon at the Townsville General Hospital dated 12 October 1984, 18 December 1984, and 15 March 1985 and the report of Dr J Reimers, Neurologist dated 19 November 1996 (Dr Reimers had access to all of the above reports), the appellant was diagnosed as having suffered a closed head injury with a skull fracture and an area of haemorrhage on the left parieto-temporal region adjacent to the fracture site with associated cerebral oedema and compression of the left ventricle resulting in an area of atrophy in the left parieto-temporal region. 

She suffered from post-traumatic amnesia for some period not determined.  She said her first recollection was waking up some weeks after the accident in hospital.  Whilst she has no recollection of the accident itself, she is and has always been aware that the accident occurred when she was 10, and that she was thereby injured by a motor vehicle.  Her mother said that she arrived on the scene a few minutes after the accident as they had lived nearby and was horrified by the sight of her daughters lying on the road.  The appellant had been subsequently shown the scene where the accident had occurred by her mother who had mentioned the accident to the appellant on occasions over the years.

The appellant suffered a serious brain injury causing lasting damage to her cognitive function as the opinion of Mr Walkley, Clinical Psychologist, demonstrated.  He saw the plaintiff on 19 November 1996 and had copies of Dr Reimers’ reports.  He said that the appellant’s intellect was at the bottom of the average scale although she was not mentally retarded.  Basically he said that she had suffered changes as a result of the brain injury, specifically to her ability to absorb and comprehend information around her such that life was very complex and she was very narrow minded.  In his view she did not have the wherewithal to have picked up information that an average person could ascertain in the normal course of their life concerning their legal rights and therefore he said she had no knowledge of them.  He added that she could not conduct searches to identify and locate the respondent or to ascertain the identity of the motor vehicle involved and that this would have to be done for her and the results explained to her for her to understand them.  He said that her cognitive function and understanding was such that she had a very narrow object focus, i.e., only her husband and child, and that her understanding of other areas was very limited.  He also said that she lacked an awareness of current affairs, did not know the Australian Prime Minister or other world events. 

The appellant said she found out that she might be able to sue for damages because her younger sister, Vicki Flemming, who was also injured in the accident, consulted a solicitor (within time for her) and told the plaintiff in November 1995 that she might be able to receive damages.  It was said that she did not know before that time that she had any cause of action or any right to sue.  She consulted a solicitor on 28 November 1995, resulting in the relatively prompt issue of the writ on 15 December 1995.

The application was opposed.  The material before His Honour was extensive and a great deal more than is usually seen on applications of this type.  There were extensive school reports from years 1980 to 1986, numerous other documentary exhibits and photographs of the scene taken by the police at the time of the accident, as well as photographs showing blood and markings on the roadway and photographs of the respondent’s vehicle taken at the time.  For the appellant there was an affidavit filed by her, one by her mother who was a registered nurse, three by Kellie Ann Parnell, her solicitor, exhibiting extensive material including a newspaper report of the incident on the day on which it occurred and the steps she took after receipt of instructions, an affidavit by Barry William Schmith, Sergeant of Police stationed at Townsville and who was in Townsville at the time of the accident which he attended, exhibiting the above photographs, and an affidavit by Robert M. Wakeley.  For the respondent there was an affidavit by Barry William Schmith, one by the first respondent, Neil William Gibson (the driver of the motor vehicle), and one each by  Barry Keith Miller, Cheryl Gay Leach, William Thomas Melrose and David Ronald  Drinnen. 

The first respondent Gibson gave oral evidence and was cross-examined.  So did the appellant as well as her mother.  The learned trial Judge therefore had the added advantage not shared by this Court of having observed various witnesses and in particular the appellant giving evidence and being cross-examined, a factor of considerable significance in cases where the intellectual capacity of a person is in issue and an assessment has to be made of that capacity: Flood v.  Williscroft [1987] 2 Qd R 358; King v. Coupland [1981] Qd R 121 at 122.  It is also clear that a Court is not necessarily bound to accept and act only upon expert evidence, particularly where there is real evidence as there is in this case where evidence was given by the appellant as well as her mother who spoke of the appellant’s capacity in various respects: Flood v.  Williscroft and cases cited; Re Ross [1988] 2 Qd R 61 at 76. 

There is no dispute that the appellant would have had a basis for an action  for damages in tort.  His Honour held (R 295) that the requirements of s. 31(2)(d) were satisfied namely that there was evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.  In so ruling, His Honour referred to the markings on the roadway consistent with a crossing in front of the school and that a person in the position of the respondent whose view was obstructed was under an obligation to have his vehicle in hand so as to cope with any emergency of the kind which the presence of the bus and the crossing and the school ought to have suggested to him.  Indeed, Mr Gibson said in evidence that his children attended the same school and he drove them to and from the school about twice weekly.  His Honour noted that the three material facts of a decisive nature on which the appellant relied and which were said not to have been within her means of knowledge prior to the relevant date (15 December 1994) were:-

1. the identify of the respondent
2. the registration of the vehicle
3. evidence of negligence against him or as it was put the quality or strength of the evidence of negligence against him.

After noting that the appellant at no time had any recall of the accident itself, and that some records, including the traffic accident report, were not available because of the passage of time, His Honour said that over a period the identity and the whereabouts of the respondent were established and some information as to the accident was obtained from police.  This information was in the form of a “special occurrence sheet” which gave a brief summary of what occurred.  The registration number of the vehicle and the identity of the third party insurer were also established.  In addition, His Honour noted that the appellant’s mother knew the name of the first respondent (Gibson) within a few days of the accident which she had discovered from the newspaper.  His Honour then said (R 298):-

“There is no reason to doubt that had the applicant consulted a solicitor after attaining her majority all of this information could have been obtained prior to 15 December 1994.  I am not persuaded that anything which emerged in the course of the evidence on this application amounts to a fact of a decisive nature.  The evidence which could have been obtained at all material times would have provided the basis of a worthwhile action.”

The prompt issue of the writ after the appellant first spoke to her solicitors on 28 November 1995 indicates that relevant facts could have been obtained within time.  His Honour then dealt with the submissions by Mr Fraser QC that whilst the test was objective, the reasonableness of the steps taken by the appellant should be judged in the light of her background and situation which included an impairment of her cognitive functions.  It was submitted that on the application of this test the appropriate conclusion to reach was that although she did not seek any advice about the matter upon attaining her majority, she should be regarded as having satisfied the requirements of s. 30(d)(now renumbered as s. 30(1)(c) with some verbal changes of no consequence).  His Honour then dealt with the appellant’s school history, her part time work as a child care assistant, the fact that she was married with two children, and also the extensive medical evidence from Dr Reimers and Mr Walkley.  His Honour said (R301):

“It seems to me that it is appropriate in considering whether the applicant has taken all reasonable steps to ascertain the material facts upon which she relies to consider her background and understanding (see Castlemaine Perkins Limited v.  McPhee [1979] Qd R 469).  There is no reason it seems to me why this should not include the consequences of the accident.”

And at 302:-

“Here the applicant says that she did not know of her right to bring proceedings for damages in respect of her injuries.  On the authorities this cannot constitute a fact of the kind referred to in Section 30(d).  See Ex Parte Bolewski [1981] Qd R 54 and Harris v Gas and Fuel Corporation of Victoria (1975) VR 619.

It is said (that) however that her impaired cognition and her tendency not to concern herself with matters other than those of immediate concern (family etc.)  and her tendency not to want to discuss her problems are matters which justify a favourable conclusion on this issue.  These are all matters affecting the applicant and no doubt her injuries and their consequences may place her at a disadvantage compared with others in terms of her appreciation of her situation and the implications arising from it.

However although at the lower range she is of  normal intelligence.  She completed grade 10 at school and has married and has 2 children.  She has worked part time and completed 2 years of an apprenticeship.  As I have already said she was at all times aware that she had been involved in a motor vehicle accident as a child and suffered serious adverse consequences of it.

The evidence viewed as a whole in my view cannot justify the conclusion that the applicant was justified in taking no steps after attaining her majority to find out whether anything could be done about the injuries she had received in her accident.  Apart from the obvious course of seeking advice from a solicitor the applicant might in the first instance have asked her mother or her husband or someone other than a solicitor what she might do and there is nothing to indicate that this would not have resulted in her establishing what her position was.”

In other words, even though His Honour’s earlier statement (R298) that the facts were not of a decisive nature may be open to comment, His Honour’s ruling nevertheless meant that the facts on which the appellant relied were within her means of knowledge because she failed to demonstrate that she took all reasonable steps (for her even in her condition which was taken into account) to find out those facts so that the onus of invoking s. 31(2)(a) was not satisfied by her:  Brisbane South Regional Health Authority v.  Taylor (1996-7) 186 CLR 541. 

The appellant did not point to a single step taken or inquiry made by her after she attained majority and indeed, before this Court, Mr Fraser conceded that she did nothing because of reasons which he outlined and which will be referred to below.  His Honour did not find it necessary to consider the question of prejudice, if any, to the respondent which was raised and which went to the discretion as to whether or not the justice of the case required an extension of time even if grounds had been made out by the appellant: Brisbane South Regional Health Authority v.  Taylor.  The application was dismissed with costs.

The grounds of appeal are as follows:

1. That the learned trial Judge erred when he found that the Appellant had failed to take reasonable steps after attaining her majority to ascertain the material facts of a decisive character of which she was ignorant and upon which she relied in bringing her application for extension of the limitation period.
2. That the learned trial Judge erred in that he failed to take sufficient account of the Appellant’s personal background and her level of comprehension of concepts, her deficient memory and impaired cognitive function and her lack of appreciation of her legal rights which were themselves consequences of the accident in which she was struck by the motor vehicle driven by the Respondent.
3. That the learned Trial Judge should have found that the Appellant was not herself capable of ascertaining the identity of:

1. The respondent
2. The motor vehicle which struck her; and
3. The circumstances concerning the driving of the Respondent (the “material facts”)

4. That the learned trial Judge should have found that in all of the circumstances of the case  for the Appellant not to take any steps at all to ascertain the material facts so as to discover whether she had any right of action against the Respondent in respect of the injuries that she received in the said accident was reasonable.
5. That the learned trial Judge erred in concluding that the Appellant could have ascertained the identity of the Respondent by asking her mother or husband when:

1. Her mother knew only that a “Mr Gibson”was the driver;
2. There was no evidence that her husband knew the identity of the driver; and
3. In any event, the Appellant’s ability to appreciate that any such inquiry should be made in her own interests had been compromised by the injuries she had suffered.

6. The learned trial Judge misdirected himself as to the test that should be applied by failing to consider whether the identify of the driver could have been ascertained by the Appellant herself and proceeding to consider whether a person who she might have retained to act on her behalf had the capacity to ascertain that fact.

Before this Court, Mr Fraser outlined his submissions along the following lines:

1. The learned primary Judge erred in approaching the question of whether the appellant had constructive knowledge of facts concerning the accident, in particular, the identity of the driver, by asking the question whether, with the assistance of someone else, she might have been able to find out material of facts; alternatively

Once it is established that the appellant was herself unable to ascertain the identity or indeed the circumstances of the accident, then constructive knowledge posited by s. 30(1)(c)(ii) could not arise.

2. If number 1 was not correct, the question then to consider was whether it was unreasonable on the part of the appellant not to make an enquiry of someone who might tell her how to find out about these matters of fact having regard to the following:

1. The circumstances as established indicated that she had no reason to make any such inquiry and was not aware of the concept of being able to sue or obtain a remedy.
2. The topic of the injury upset her.
3. Her mother had not advanced that course and inquiry of her mother would have achieved nothing because her mother was of the belief that the appellant had no cause of action because of wrong information about the expiry of a three year limitation period from the date of the accident, and had known only the name “Mr Gibson” and nothing of the circumstances of the accident.
4. The appellant did not understand the concepts involved.

These submissions come down to the following.  Within the meaning of s. 30(1)(c) of the Act, the fact of the identity of the person against whom the right of action lies and the fact of the occurrence of negligence on which a right of action is founded, were material facts of a decisive character and were not within her means of knowledge because they were not capable of being ascertained by her, having regard to her cognitive impairment which flowed from the accident in question.  It was also said, that for the same reason, she did not know of her right to bring proceedings for damages in respect of her injuries which, whilst not a material fact, nevertheless demonstrated the extent of the appellant’s cognitive impairment and went to the reasonableness of her position in not making any relevant enquiries.  To put it more simply, this means that because the appellant was in such a condition, it was reasonable for her to make no inquiries at all pursuant to s. 30(1)(c)(ii) so that those material facts were not within her means of knowledge within the meaning of that sub-section and also within the meaning of s. 31(2)(a).  As a result His Honour did not consider that his discretion was brought into play and was accordingly not exercised.  It was further submitted that the material shows no possible prejudice to the respondent.

The scheme of the Act is as follows.  Section 31(2)(a) provides that where on application to a court by a person claiming to have a right of action to which the section applies i.e., an action for damages for negligence involving personal injury, it appears to the court (i.e. by evidence by an applicant who has the onus of proof) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after the commencement of the year last preceding the expiration of the period of limitation for the action, and there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation: s. 31(2)(b), the court may as a matter of discretion, order that the period of limitation be extended as prescribed.  As indicated, it was not in dispute that His Honour correctly determined that there was evidence to establish the right of action apart from the defence of the expiration of the period of limitation.  Notably, s. 31(2)(a) refers not to an applicant’s actual knowledge, but rather to “means of knowledge”.

Thus to succeed, as McPherson J (as His Honour then was) pointed out in Randell v.  Brisbane City Council [1984] 2 Qd R 276 at 277, s. 31(2)(a) requires proof by the appellant of all three elements:-

1. existence of a material fact or facts unknown before the relevant date;
2. that fact or those facts must of a decisive character; and
3. that fact or those facts were not within her means of knowledge until after the relevant date.

As to (a), which involves the first step in the enquiry referred to by Dawson J (with whom Brennan J as the Chief Justice then was, agreed) in Do Carmo v.  Ford Excavations Pty Ltd (1983-4) 154 CLR 234 at 256, attention is directed to s. 30(1)(a) which defines what are capable of being material facts.  As indicated, the material facts relied upon are those referred to in s. 30(1)(a)(i) and (ii), i.e., the identity of the driver (ii) and the fact of the occurrence of negligence (i). 

It is clear (and indeed was conceded by Mr Fraser), that ignorance of the existence of a cause of action is not a material fact within the meaning of s. 30(1)(a)(i): Harris v.  Gas and Fuel Corporation (Vict) [1975] VR 619; Ex parte Bolewski [1981] Qd R 54, applied in Do Carmo v.  Ford Excavations Pty Ltd.  On the other hand, as those authorities demonstrate, the sub-paragraph is directed to “facts” which the appellant must prove in order that she can establish a cause of action in negligence.  The provision is concerned with such facts and not the legal consequences of those facts if proved.  These might include any of the well-known facts necessary to establish negligence by the driver of a motor vehicle.  It is clear that the facts of which the appellant was unaware are material facts within the meaning of s. 30(1)(a).  His Honour’s reasons are to this effect, at least as to the identify of the driver.

The next step is to ascertain whether the above facts are of a decisive character.  Section 30(1)(b) defines what are material facts of a decisive character.  They can only be so categorised if a reasonable person, knowing those facts and having taken appropriate advice on those facts would regard those facts as showing:

1. that an action on the right of action would .... have a reasonable prospect  .... of success; and
2. that the person whose means of knowledge in question ought in that person’s own interests and taking that person’s circumstances into account to bring an action on the right of action.

This provision refers to “material facts” but obviously includes a single material fact, because an applicant need only demonstrate that one (or more) material facts of a decisive nature was or were not within the applicant’s means of knowledge until after the relevant date: s. 32(2)(a) resulting in a new assessment:  Moriarty v.  Sunbeam Corporation Limited [1988] 2 Qd R 375 per Macrossan J (as the Chief Justice then was) at 323.  “Appropriate advice” is defined in s. 30(2) as meaning the advice of competent persons  qualified in their respective fields to advise on the medical, legal and other aspects of the facts.   The facts here referred to are not limited to just the missing fact or facts.  The advice relates to the concatenation of facts, known and not known until after the relevant time, as showing a reasonable prospect of success within the meaning of s. 30(1)(b)(i).  Any one unknown fact essential to found the cause of action is thus capable of being a material fact of a decisive character.  

Section 30(1)(b) is not directed as such “to the mentality, personal idiosyncrasies or behaviour of a particular applicant: Randell v.  Brisbane City Council at 277-8.  The provision characterises what must, after appropriate advice, be regarded by an imaginary reasonable person as a fact or facts essential or at least necessary (along with other known facts) to found an action with reasonable prospects of success such that, having taken the particular applicant’s circumstances into account, the applicant ought to bring an action.  In other words, it is not any fact of which  an applicant might be unaware which can justify an extension of time.  The test is objective: Do Carmo v.  Ford Excavations Pty Ltd at 258.

Nevertheless, s. 30(1)(b) presupposes that an applicant has proved actual lack of knowledge of an essential fact or facts until after the relevant date and actual knowledge of other facts because s. 30(b) refers to a “reasonable person knowing those facts” from which, upon advice, the two conclusions referred to may be drawn.  As Mahoney JA pointed out in Royal North Shore Hospital v.  Henderson (1986) 7 NSWLR 283 at 289, sections similar to the foregoing draw a distinction between what an applicant may actually know and what he or she is taken to know and at what time. 

The appellant actually knew of the following facts (some of which were conveyed to her) prior to the expiration of the limitation period:-

1. that she had been struck by a motor vehicle on the date in question;
2. the place where it occurred as indicated to her by her mother in front of her school after she and her sister had alighted from the bus and were proceeding across a pedestrian crossing when they were struck;
3. that she suffered injury and damages as a result.

The material facts of which she was unaware within the relevant time were:

4. The identity of the driver.
5. The identity of the car.
6. Some facts and circumstances capable of constituting negligence.

It is clear that a reasonable person knowing only the facts of which the appellant had actual knowledge and having taken appropriate advice, would not regard those facts as indicating that an action based upon them would have reasonable prospects of success.  At least the identity of the driver as a necessary party to such an action was essential.  The cause of action was defective in that it lacked a fact of a decisive character.  “Minimum material facts” on which to found a cause of action did not exist: Royal North Shore Hospital v.  Henderson per Samuels JA at 291G.  It is also clear that a reasonable person knowing the material fact or facts of which the appellant was ignorant (at least the identity of the driver), together with all other relevant facts within her actual knowledge, would, having taken appropriate advice, regard those facts as showing that an action based upon them would have reasonable prospects of success and as showing that the appellant ought in her own interests and having regard to her circumstances, bring an action on the right of action.  Therefore the facts of which she was unaware (at least the identity of the driver), were material facts of a decisive character within the meaning of s. 31(2)(a).  To this extent, His Honour’s statement at R298 that nothing in the evidence “amounts to a fact of a decisive nature” appears to be incorrect as submitted.  Indeed, it was not contended for the respondent on the appeal that the above facts were not material facts of a decisive character.

The third necessary stage of the enquiry arrises because s. 31(2)(a) requires that a material fact of a decisive character must not be within the means of knowledge of the applicant until after a specified date.  Attention is directed to the expression “means of knowledge” rather than “actual” knowledge in both s. 31(2)(a) and in s. 30(1)(c).  That sub-paragraph renders it necessary to ascertain whether the facts of which she was actually unaware, were within her means of knowledge.  If she fails to discharge the onus of proving the requirements of s. 30(1)(c) that the relevant facts were not within her means of knowledge, she fails to satisfy  s. 31(2)(a).  If otherwise, the discretion provided by s. 31(2)(a) comes into play.

Section 30(1)(c) provides as follows:-

“(c)a fact is not within the means and knowledge of a person at a particular time if, but only if -

1. the person does not know the fact at that time; and
2. as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.”

The evidence (consistent with His Honour’s findings) shows that the appellant did not know the fact or facts at the relevant time, at least the identify of the driver.  This leaves consideration of paragraph (ii). 

In Do Carmo v.  Ford Excavations Pty Ltd , Dawson J said that the test was subjective  rather than objective (as in s. 30(1)(b)).  His Honour said that “it is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man”.  His Honour further said at 259, “what is important is the means of knowledge which were reasonably available to the appellant and that must mean available in a practical and not a theoretical sense.”  In that case, the applicant was a “non-English speaking, poorly educated, dull-witted immigrant in this country”.  There was no suggestion that he otherwise suffered any diminution in mental capacity as in the present case.  Nor was there any discussion on the qualifying words at the commencement of the equivalent of s. 30(1)(c)(ii) “in so far as the fact is capable of being ascertained by him ...”.

That test was accepted as being consistent with that laid down by the Full Court of Queensland in Castlemaine Perkins Limited v.  McPhee [1979] Qd R 469 viz, that the test of the reasonableness of the steps taken by an applicant to ascertain the material fact is objective with regard being had to the background and situation of the applicant.  In other words, having regard to the background and situation of the applicant, the applicant must take reasonable steps for him or her which import an objective test of the steps that a person in his or her particular position and circumstances would reasonably be expected to take: Do Carmo v.  Ford Excavations Pty Ltd per Dawson J at 259.  The learned Judge in the current application correctly had regard to the applicant’s mental capacity as consequences flowing from the accident, when considering this question and ruled that because she was of normal intelligence, the facts relied upon were within her “means of knowledge” prior to the relevant date, resulting in the dismissal of the application.

This action was not commenced with a next friend.  Because of the submissions and the medical evidence, this Court on several occasions throughout the hearing expressed concern as to whether the appellant was in fact under a disability within the meaning of s. 29 of the Act such that, if that condition persisted throughout the relevant period, there could be an extension of time simply because of that disability, with no need to rely upon s. 31: King v.  Coupland.  When asked at the outset (T3) whether it was clear that the appellant had legal capacity, Mr Fraser said:-

“There’s no case advanced here, Your Honour, that she didn’t have legal capacity, yes.”

When further asked (T4) whether the appellant was drawing a line between legal disability and something less and with the question posed that the appellant was not legally disabled on the appellant’s approach, Mr Fraser said:-

“Well, Your Honour, I wouldn’t concede that for all purposes because on the ... then we’re arguing this appeal.  I mean, the action can still proceed and if the defence or limitation period is advanced, then the question of whether she’s under a legal disability may have to be further explored at a later stage.”

At (T18), when asked why the appellant did not fall within s. 29 (a person under a disability) Mr Fraser said:-

“She may be, Your Honour, but my opening salvo was that if we succeed on this then it doesn’t - that issue may not arise.”

At T25 after reference by Mr Fraser to a Victorian case of Smith v.  Browne [1974] VR 842 dealing with a case of a person under a legal disability, Mr Fraser in response to a question from the Bench that “..... we all agree that this unfortunate woman isn’t”, (meaning under a legal disability), Mr Fraser replied:

“No, Your Honour, we don’t -- yes.”

Finally in reply at T35, Mr Fraser made the following statement:

“... it is simply our submission that a person who doesn’t know that she can bring actions for personal injuries is not thereby a person under a disability.  If that was so then all of the persons for whom the actions were brought in the cases where they sought to advance their ignorance of their ability to sue as a question of law - sorry, as a material fact, ought to have been out of court, on the basis they’re under disability.”

That latter submission was a partial retreat but it confuses on the one hand, ignorance of the legal right to sue by someone with legal capacity, and on the other hand, lack of knowledge by a person under a legal disability of a legal right to sue, not because of ignorance, but because of the lack of mental capacity to understand or to ascertain that such a right existed.  In this case, the submission throughout was that the appellant, because of her reduced mental capacity caused by the accident, had no knowledge whatsoever that she had any right of action to claim damages against the driver of the motor vehicle involved in the collision outside her school when she was 10 years of age.

The foregoing appears to indicate an inconsistency in the appellant’s approach.  The submission appears to be that if this application for an extension of time pursuant to s. 31 fails,  an application for an extension of time may still be brought on a different basis pursuant to s. 29 of the Act, viz, that the appellant is a person under a legal disability as defined in s. 5(2).  If the latter situation is sought to ultimately prevail, then, if the action is proceeded with,  it is abundantly clear that it can only be continued by a next friend.

To commence or to continue an action without a next friend, a plaintiff’s solicitors must, in the light of medical and other information available to them, correctly form the view that a next friend is not required because the plaintiff is capable of  understanding the nature of his or her legal rights and so is able to give informed and competent instructions to sue, to understand the nature of and risks concerning the litigation and to understand and accept any compromise if that result is achieved.  Otherwise a sanction of the court is necessary pursuant to s. 59 of the Public Trustee Act 1978 on the basis that the plaintiff is a person under a legal disability within the meaning of s. 6 of that Act, the relevant test being that such a person is unable to manage his or her estate and his or her affairs within the meaning of s. 65 of that Act: Cocchi v. Cocchi [1989] 1 Qd R 266 at 269 ll.49-54.  In those circumstances, the usual course is that a protection order is made, the moneys are paid to the Public Trustee and the usual cost orders are made: Phillips v.  Munro [1957] St R Qd 427; Kyte v.  Georgettis [1969] QWN 46. 

It is settled that the legal test for capacity to sue or be sued is whether that person has the capacity to manage and administer his or her property and affairs, and this means affairs in the widest sense including his or her estate and the enforcement of any legal rights which necessarily involves the capacity to give competent and informed instructions to his or her solicitors.  See e.g., “An Assessment of Mental Capacity - Guidance for Doctors and Lawyers (BMA London 1995) 6.1, 3.2.; King v. Coupland at 123.  That test is similar in the case of a person alleged to be under a disability for the purposes of s. 29 of the Act or a person said to be under a legal disability for the purposes of s. 59 of the Public Trustee Act: Cocchi v.  Cocchi.  There are well known risks to a plaintiff’s solicitors and sanctions to which they might be subject.  There are also risks to a defendant if a compromise is reached without a sanction pursuant to s. 59.  No discharge is obtained if it is later discovered that all along, the plaintiff was in fact under a relevant legal disability so that his moneys were wrongly dissipated and subsequent litigation ensues:  Henderson v.  Elbers (W 3961 of 1984, 5 September 1986, Carter J unreported).  Sinitski v. Munro (W 2195 of 1975, Consent Order 4 September 1979); Sinitski v.  Rolley (W 4831 of 1980, 31 August 1984 unreported).  Accordingly, legal advisers acting for a plaintiff must take considerable care in deciding whether to commence (or continue) an action without a next friend when the facts may warrant that course.

The facts and particularly the submissions in this case have gone close to indicating that the appellant is under a legal disability.  When the Court’s attention is drawn to the possibility that a person is under a legal disability, the Court is always concerned about the rights of such a person having regard to the special jurisdiction in relation to such persons.   As pointed out during argument on the appeal (T28, T30), it is difficult to imagine a case where the injured person did not know that there was some right to compensation in some circumstances, except in the case where the person is under a legal disability.  In this case, the appellant was 21 years of age before the limitation expired.  She had been injured by a motor vehicle when she was 10 years of age whilst crossing a pedestrian crossing in front of her school with her younger sister who was also injured, yet the claim is that she did not know and has never known that she could sue the driver for damages for her injuries.  

However, the case was not advanced on that basis before the learned Judge or before this Court.  Of some significance is the fact that no attack was made on the findings of the learned Judge quoted above that even though the appellant is at the lower range, she is of normal intelligence (and was in effect capable of making enquiries).  It is well known that a person within the lower range of normal intelligence may be perfectly able to manage his or her affairs, whilst a person of a higher intelligence may not be so able.  It depends on other factors pointing to an inability to manage affairs.  Whether it is open to the appellant, should this application pursuant to s. 31 fail, to seek an extension of time by another route, having regard to His Honour’s findings, is a matter with which this Court is not required to deal and on which no opinion is expressed.  Likewise no opinion is expressed as to whether or not the plaintiff is in fact under a legal disability on the evidence as presented.

Neither counsel was aware of any case which discussed the relationship, if any, between the various provisions relating to an extension of time or which dealt with the dividing line between a person under a legal disability and a person not in that category but of a reduced mental capacity as a result of the accident in question, such that special consideration should be given, within the confines of s. 30, 31 of the Act, to a person in the appellant’s position.  The various authorities referred to in the context of s. 30(1)(c)(ii) or its equivalent deal with persons of normal intelligence, but who may be poorly educated, or illiterate, or lacking knowledge or who have language or such difficulties. 

As pointed out by McHugh J (with whom Dawson J agreed) in Brisbane South Regional Health Authority v.  Taylor, the policy of the law for nearly 400 years has been to fix definite time limits for prosecuting civil claims, for the many reasons mentioned at 551-3.  A limitation provision is the general rule; an extension is an exception to it, casting a substantial onus on the appellant to demonstrate that her case is a justifiable exception to the general rule.

Section 29(1) provides for an extension of the period of limitation in the case of a person under a disability as defined in s. 5(2)(the Act) as a person who is “an infant or of unsound mind or a convict who, after conviction, is undergoing a sentence of imprisonment.”: R.  v.  Coupland.  When such a person is under a disability, time simply does not run, providing the person is under the relevant disability throughout the period in question.  It does not place an absolute time limit in the case of a person who is and has always been under a legal disability but who never ceases to be so.  cf  Williams v.  Zupps Motors Pty Ltd [1990] 2 Qd R 493.  Section 29 is a general application and applies to any type of action.

On the other hand, ss. 30, 31, deal with a limited power in the Court to grant an extension in an action for damages for negligence involving damages in respect of personal injuries or damages in respect of injury resulting from the death of any person.  The power to grant an extension is very closely confined.  Those sections overall appear to be directed to persons other than those under a legal disability who are separately catered for in s. 29, whilst otherwise catering for a wide range of applicants with various circumstances but who are otherwise not under a legal disability:  s. 30(1)(c)(ii).  See eg the person dealt with in Do Carmo v.  Ford Excavations Pty Ltd at 259 and in Gordon v.  James Hardie & Co Pty Ltd and Ors (No 1) (1987) Aust Torts Reports 80-132 (69, 023).  There is also a wide range of mental capacity among persons from the lower end to the higher end of intelligence.  None of such persons could, in the absence of other factors, be properly said to be under a relevant legal disability.  See the passage by Ambrose J in Cocchi v.  Cocchi at 269  l.30 and following.

There are other pointers in those sections which contemplate that they are concerned only with a person other than a person under a legal disability properly so called.  See for example the expression ‘means of knowledge’ of an applicant in s. 31(2)(a).  Section 30(1)(c) appears to contemplate that an applicant has the (mental) means to acquire knowledge but has not for whatever reason made any attempt to acquire relevant knowledge.  This would include ignorance, laziness, lack of education, language difficulties and the like.  It would also include a person within the normal but lower range of intelligence.  The reference “to a reasonable person” in s. 30(1)(b) is to a person of normal (reasonable) mental capacity.  But more importantly, that reasonable person is to consider under (ii) the “means of knowledge” of the particular person and what that person ought to do in that person’s own interests, taking the person’s circumstances into account.  This suggests that these sections contemplate a person with legal capacity who has means of knowledge and who would, in his or her own interests, be capable of deciding to bring an action.  The remarks of Mahoney JA in Royal North Shore Hospital v.  Henderson at 289 cited above, seem to support this view.  The section seems to contemplate a person who is actually capable of understanding some facts but who may, for reasons (other than legal incapacity) for which no blame should be attached to him or her, simply not know of other material facts of a decisive character within the relevant time.

Section 30(1)(c)(ii) contains a qualification on what “reasonable steps” the person in question should have taken to find out the facts before the relevant time.  It states “as far as the fact is able to be found out by the person”.  Some facts are able to be found out by any person not under a legal disability and some facts by their very nature may be unable to be found out by a person not under a legal disability.  On the other hand, a person under a legal disability is simply unable or “incapable” in law of discovering any relevant fact for that reason, i.e., simply because he lacks legal capacity.  Such a person is incapable of managing and understanding his affairs which as indicated include his affairs in the widest sense such as his legal rights, what is involved, and how to take steps to enforce those rights, and included within that concept is the inability to sue or be sued, except without a next friend or guardian ad litem and the inability to understand and give informed instructions to his legal advisers.  As indicated, these factors all point to the composite test of disability within the meaning of s. 29, s. 5(2) of the Act (“unsound mind”): R.  v. Coupland, or legal disability within the meaning of s. 59, s. 6 of the Public Trustee Act 1978 i.e. a person who is an infant, or not of full mental capacity or is an incapacitated person: Cocchi v.  Cocchi.

If there is a relevant mental incapacity indicating a legal disability, then s. 29 comes into play so that the rights of such a person, i.e. to an extension of the limitation period, are duly provided for, whereas s. 30, s. 31, seem more appropriately to be directed to the rights of a “normal” person or a “reasonable person”, ie, a person not under a legal disability who may not be able to find out about the fact because of the nature of the fact itself.  If the particular fact is a fact of such a nature that it is not “able” to be found out by the person, then it would seem to follow that he need take no steps at all and subject to s. 31, may succeed in an application for an extension.  This seems to give some meaning to the phrase “so far as the fact is able to be found out by the person”.  Indeed, in Royal North Shore Hospital v.  Henderson (1996) 7 NSWLR Mahoney J at 299 said:-

“The phrase ‘reasonable steps’ may have at least two significations.  A particular step not taken may not fall within ‘reasonable steps’ because, in the circumstances, it was not reasonable to expect the plaintiff to take any steps at all; or it may not fall within the phrase because, though he could reasonably be expected to take some steps, the step in question could not reasonably be expected of him.  The latter is, perhaps, the meaning ordinarily to be given to the phrase but it may, I think, also include the former.  In the present context, I do not think it was intended that a fact should be taken to be within the means and knowledge of a plaintiff when it would not have been reasonable to expect him to take any steps at all. 

...

In this regard, it is, I think, to be noted that, in determining what is ‘reasonable’ for this purpose, the Act does not require that it be assumed that the plaintiff would have taken advice.  There is a distinction in this regard between s. 57(1)(e) and s. 57(1)(c).  Whether it would have been reasonable to take advice and what steps thereafter would have reasonably been taken must be determined with reference to the particular plaintiff or, possibly, by reference to him as a reasonable person.”

The particular fact in that case of which the applicant was unaware until after the relevant time, was a fact that he had no reason to even suspect as a consequence flowing to him from radiation treatment he had received some years earlier.  So also with the material fact dealt with in Do Carmo v.  Ford Excavations Pty Ltd.

On the other hand there are many facts of a kind which are “able” to be found out by an applicant who must take reasonable steps (i.e. reasonable for him or her) to ascertain that fact or those facts, and at this stage of the process his or her actual attributes and circumstances must be taken into account, i.e., what was reasonable for him or her to do to ascertain the fact which is a fact which is otherwise capable of being found out by a reasonable person.  Section 30(1)(c)(ii) does not require “appropriate advice”, but rather, whether the person has taken “all reasonable steps to find out the fact ...”.  Reasonable steps can be enquiries of relatives or friends or a solicitor or workmates or customers or other enquiry which may be made even though those steps may prove to be unsuccessful.  The question simply is whether the steps taken were reasonable for him or her.

Some facts by their very nature are those which any “normal” person is able to ascertain and might reasonably be expected to take steps to ascertain.  For example, when a pedestrian comes into collision with a motor vehicle resulting in serious injuries and damages and providing the person is not under a legal disability, not only is the identity of the driver who caused the injuries a fact reasonably able to be ascertained in a case such as this where there is no suggestion that the vehicle or driver was not unable to be identified, but also it is clearly reasonable that steps would be taken by a person (not being under a disability), to ascertain that fact on inquiry from appropriate sources such as the police.  In these circumstances, an applicant must prove not only that he or she does not know the fact at the relevant time, but that he or she has taken all reasonable steps (reasonable for him or her) to find out that fact before the relevant time. 

No basis has been demonstrated and no authority indicates that there is a half-way house or any basis warranting special consideration to a person in the position of the appellant, other than the basis provided for by s. 30(c)(ii) of the Act.  Her position is adequately protected by the test required by that sub-paragraph given that the learned trial Judge found that she was of normal intelligence after having considered a wide range of evidence including that given by the appellant and her mother.  His Honour made due allowance for the consequences of the accident to her.  She completed schooling, was reasonably successful at TAFE (as her mother said in evidence), she completed two years of a hair dressing apprenticeship and doubtless had come into contact with customers, had married and had two children, her mother was a registered nurse and presumably familiar with actions for damages for personal injuries notwithstanding her misunderstanding that the time limitation had expired. 

Having regard to the finding that she was of normal intelligence, it is difficult to see why the learned Judge was not entitled to conclude that the appellant in all of the circumstances, did not prove that the relevant facts relied upon were not within her means of knowledge because they were facts able to be found out by her and that she did not take all reasonable steps (for her) to find out those facts within the relevant time.  As sad as the result is for the appellant, His Honour was correct in his conclusion, that not having taken any steps whatsoever she had not discharged the onus of proof.  Mere ignorance that she had a right to sue for damages cannot avail a person of normal intelligence.  Not only is that not a material fact within the meaning of s. 30(10(a), it cannot excuse the fact that she did not take any steps whatsoever to find out the relevant material facts.

In the circumstances, it is not necessary to consider the discretionary factors advanced for and against the making of an order had the appellant otherwise satisfied the requirements of s. 31(2)(a).

The appeal must be dismissed with costs.