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. S57B of the Limitation Act was accepted in the argument before Herron DCJ and in this Court as being applicable to the case. It says in subs1(b)(v) that material facts relating to a cause of action include the nature and extent of the personal injury allegedly caused by the negligence or breach of duty relied on by a plaintiff. The finding of fact which is challenged in the appeal is that contained in the following sentences in Herron DCJ's reasons: "So far as the plaintiff was concerned there were material facts of a decisive character relating to the cause of action which were not within her means of knowledge within the requisite period, in particular those facts of a decisive character related to the nature and extent of her injuries." The argument the appellant has presented at the appeal is that the steps in his Honour's reasoning which led to that conclusion were faulty. The steps were very simple. 2 UNREPORTED JUDGMENTS The first one related to the plaintiffs evidence which she gave by affidavit and orally. (She was both examined and cross-examined before Herron DCJ.) In para28 of her affidavit she said: "T neither sought nor received any psychiatric care or care in a psychiatric institution before January 1990 and it was not until I was seen by the psychiatrist and subsequently admitted to hospital that I appreciated the full nature and extent of the nervous shock I had sustained. " This paragraph was not objected to nor challenged in cross- examination. Herron DCJ referred to this paragraph in his reasons. He also said the plaintiff "is obviously a very honest person and I accept her implicitly". The second step in his reasoning was a reference to a report made in March 1990 by a psychiatrist who saw the plaintiff in January 1990. Herron DCJ said of this "But the doctor obviously was of the view at that time that the plaintiffs emotional problems were directly connected with the injuries of the boy and especially I would take it having seen him in the injured state that he was in. Although I must say the doctor refers to the present situation or the situation of the boy after the accident." The trial Judge then made the finding I have earlier read. It was the second step which the appellant criticised. It was submitted that the report did not justify his Honour in inferring that the plaintiff's emotional problems were directly connected with her having seen her son in the injured state that he was in. Then it was said that if that inference was not open to the Judge he had no basis for arriving at his conclusion. It may be debatable whether the disputed inference was open to the Judge but even assuming, without deciding, that point in favour of the appellant, I do not think that means the appeal should be upheld. There was other medical evidence before the Judge including a report dated 7 November 1990 of Dr Lambeth, another psychiatrist, supporting a conclusion that the plaintiff had suffered nervous shock in the relevant sense as a result of her son's accident. This Court thus has before it the evidence in para28 of the plaintiff's affidavit, in substance unchallenged, the trial Judge's acceptance of the plaintiff as truthful, Dr Lambeth's report of 7 November 1990 and the report of March 1990 which on any view is not inconsistent with the plaintiff's evidence in para28 of her affidavit. These materials to my mind so clearly support the conclusion the trial Judge reached that even if the challenged inference were not available to him, that I do not think this Court should interfere with his decision. On the material before him his decision was, in my respectful opinion, the right one. I would therefore dismiss the appeal with costs. Meagher JA So would I. Sheller JA For the reasons given by the Presiding Judge, I also would dismiss the appeal with costs. Appeal dismissed with costs. Counsel for the appellant: G Laughton Solicitors for the appellant: RJ Walters URJ HICKS v EDSER (Sheller JA) Counsel for the respondent: PH Taperell Solicitors for the respondent: Baker Love