Fraser v Marsden [2000] NSWSC 416

Fraser v Marsden [2000] NSWSC 416

The plaintiff passed the s 60I(1)(a)(i) and s 60I(1)(a)(ii) gateways because he did not know that he suffered a diagnosable psychiatric injury, nor the nature or extent of that injury, until around May 1997 after reading Dr Quadrio's report; although he failed to satisfy s 60I(1)(a)(iii), satisfaction of the first two gateways was sufficient. Despite the very long delay, the plaintiff had a real case to advance and, because the breach of fiduciary duty claim would in any event involve a trial on the same facts, the plaintiff discharged his onus of showing that it was just and reasonable to extend the limitation period.

Jurisdiction
Australia
Judgment Date
22 May 2000
Procedural Posture
Application for Extension of Time to Commence Proceedings Under S 60 G of the Limitation Act 1969 (nsw) / Notice of Motion
Outcome
Extension of time granted; costs of the motion reserved.
Legal Topics
['extension of Limitation Period' 'personal Injury' 'assault and Battery' 'false Imprisonment' 'breach of Fiduciary Duty' 'psychiatric Injury']
['limitation Law' 'tort Law' 'equity'] ['extension of Limitation Period' 'personal Injury' 'assault and Battery' 'false Imprisonment' 'breach of Fiduciary Duty' 'psychiatric Injury']

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Procedural Posture

Application for Extension of Time to Commence Proceedings Under S 60 G of the Limitation Act 1969 (nsw) / Notice of Motion

Legal Issues

  1. 1 ['Whether the plaintiff satisfied s 60I(1)(a)(i) by proving that he did not know that personal injury had been suffered within the relevant period.' 'Whether the plaintiff satisfied s 60I(1)(a)(ii) by proving that he was unaware of the nature or extent of the personal injury suffered within the relevant period.' "Whether the plaintiff satisfied s 60I(1)(a)(iii) by proving that he was unaware of the connection between the personal injury and the defendant's act or omission within the relevant period." 'Whether it was just and reasonable under s 60G to extend the limitation period.']

Ratio Decidendi

The plaintiff passed the s 60I(1)(a)(i) and s 60I(1)(a)(ii) gateways because he did not know that he suffered a diagnosable psychiatric injury, nor the nature or extent of that injury, until around May 1997 after reading Dr Quadrio's report; although he failed to satisfy s 60I(1)(a)(iii), satisfaction of the first two gateways was sufficient. Despite the very long delay, the plaintiff had a real case to advance and, because the breach of fiduciary duty claim would in any event involve a trial on the same facts, the plaintiff discharged his onus of showing that it was just and reasonable to extend the limitation period.

Court Disposition

Extension of time granted; costs of the motion reserved.

Orders

  • ['The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of assaults which occurred in 1968 and 1969 up to and including 29 May 1997.' 'Costs of the motion are reserved.']