HICKS and ANOR v EDSER [1996] NSWCA 246

HICKS v EDSER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and SHELLER JJA 23 April 1996, 23 April 1996 [1996] NSWCA 246

NEGLIGENCE — NERVOUS SHOCK — s58 LIMITATION ACT 1969 — respondent's son injured in accident in 1982 — respondent commences proceedings for nervous shock in 1990 — seeks leave for extension of time — trial judge finds respondent not aware of the full nature and extent of her nervous shock until early in 1990 — material facts of a decisive character were not within her means of knowledge until after the expiration of the limitation period — extends limitation period pursuant to s58 of the Limitation Act 1969 — on appeal issue is whether trial judge correctly determined whether material facts were not within the means of knowledge of the respondent before the expiry of the limitation period — held: no error in judge's fact finding.

ORDER Appeal dismissed with costs.

Priestley JA By leave, the defendant in a claim for damages for nervous shock appeals against a decision by his Honour Judge Herron QC, of the District Court, by which he extended the limitation period within which the plaintiff might bring her action to 30 September 1990.

The plaintiffs action is based on an accident to one of her children which happened on 1 June 1982. She commenced her action on 30 August 1990.

This appeal has not provided a foothold for any of the arguments of statutory construction to which the Limitation Act 1969 has been subject in recent years. The circumstances of the case have led to the appeal being confined to one argument only, which concerned factual findings made by Herron DCJ. The argument was that his Honour was wrong in finding that, within the meaning of s58(2)(a) of the Limitation Act 1969, a material fact of a decisive character relating to the plaintiff's cause of action was not within her means of knowledge until a date after the commencement of the year preceding the expiration of the limitation period for her cause of action.