Limitation issues in mental harm claims

Whilst not a medical negligence case, this interlocutory decision of the Supreme Court of NSW (Odell v State of New South Wales [2017] NSWSC 643)  provides some important reminders in relation to limitation issues in mental harm claims.

In this matter a former long-serving police officer makes a claim for mental harm arising from his duties as a police officer. The plaintiff ceased work in around 2008 and was medically retired in December 2011. Proceedings were commenced in December 2014. The defendant asserts that the matter is statute barred by virtue of the provisions of the Limitation Act 1969 (NSW).

Whilst the Court was unable to make a determination on the defendant’s motion seeking to have the matter dismissed for want of due dispatch as the pleadings required amendment to better define limitation issue before it could be determined, the Court made the following comments which are worth keeping in mind in mental harm matters which have a potential limitation defence:

1. the Court of Appeal decision on Commonwealth of Australia v Smith [2005] NSWCA 478 is authority for the proposition that the cause of action does not arise until the recognised diagnosable psychiatric injury has arisen;
2. a defendant who raises the limitation issue has the burden of proof and is required to establish that the matter is futile as the plaintiff will not be able to overcome the statutory bar (Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 71 – 72); and
3. where a claim relates to facts occurring over many decades it may be that any determination of a limitation defence cannot be made in an interlocutory application and can only be determined at trial (Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514).