Bergemann v Tilly’s Administrative Services Pty Limited [2012] QSC 266


At the heart of the plaintiff’s application to extend the limitation period, was whether his post-traumatic stress syndrome was such as to constitute an ‘unsoundness of mind’. I refer you to the test for same below.

Douglas J

[1] On 19 April 2004 the plaintiff was injured at work when a crane rolled forward pinning his left hip, knee and ankle against a large excavator base on which he had been performing some welding work. His allegation is that the crane driver failed to engage the park brake before leaving the crane unattended.

[2] He sought and obtained workers’ compensation for his injuries but did not commence any civil proceedings claiming damages for those personal injuries until 10 August 2010, having given notice of his claim for damages to WorkCover on 16 December 2009. This is an application for a direction that he has at all times since 19 April 2004 been under a disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld), or, alternatively, that the limitation period be extended to 16 December 2009 under s 31(2) of that Act. That was the date he was considered to have given a compliant notice of claim for damages to WorkCover.

[14] I have previously mentioned the two psychiatrists who gave oral evidence about his capacity, Dr Cantor being called for Mr Bergemann and Dr Varghese for the defendant. Each had been asked questions based on the analysis of what is meant by unsoundness of mind by Macrossan J in King v Coupland. His Honour said:[2]

Kirby v Leather [1965] 2 QB 367 was cited to me and in particular the observations in that case of the Master of the Rolls at pp 383-384. It may be accepted that the meaning of ‘unsoundness’ of mind is to be gathered from considering the place of the relevant phrase in the statute and from the function intended by the statute itself. The examples given at p 384 of relevant aspects of unsoundness seem helpful, with respect, and a number of the medical witnesses before me were asked to provide an opinion, basing themselves upon those guidelines viz capacity to instruct a solicitor property; capacity to exercise reasonable judgment upon a possible settlement and capacity to appreciate the nature and extent of any available claim. These seem to me to be aspects of a broader concept of a mental illness causing an incapacity to manage affairs in relation to the accident that is to manage them in the manner that a reasonable man would achieve. This I take to amount to the unsoundness of mind which the Statute brings into question.”

[15] The consideration of that decision in State of Queensland v RAF[3] leads to the conclusion that, to establish unsoundness of mind for the purposes of the Act, there must exist a mental illness which produces an incapacity by a person to manage his or her affairs in relation to the accident, and not in relation to life generally, in the manner of a reasonable person. To constitute unsoundness of mind the condition from which a person suffers needs to be more or less continuous and the relevant test is whether any periods of lucidity are such as to enable a person to manage his or her affairs in relation to court proceedings in the manner that a reasonable person would achieve. Brief amelioration of a disability which is too short to enable comprehension of all relevant matters or action upon them would not remove the protection provided by the Act. The phrase “mental illness” is not intended as a term of art but is meant in the more general sense as connoting an abnormality of the “mind” which includes the ability to form a rational judgment and to act upon any such judgments so formed.

[28] The history of the claim over time when it was prosecuted persistently by Mr Bergemann as described by Dr Varghese, the evidence from the report by Dr McIntyre, the evidence of Ms Gilmore and my own observations of the plaintiff have led me to conclude that the plaintiff was not incapable of managing his affairs in relation to this accident during the relevant period since the accident. The persistence in the workers’ compensation claim and the other evidence indicating that he continued at work and changed work over a considerable period after the incident, in spite of the evidence of Dr Cantor, does not satisfy me that he has shown, on the balance of probabilities, that he lacked the relevant capacity over the whole of the period to manage his affairs in relation to the accident. I accept that there would have been periods when he may have had difficulties in doing that but I do not accept that he would have been so incapacitated for all but brief periods which were too short to enable him to comprehend all the relevant matters or actions required by him.

[29] Consequently, I would not grant the application pursuant to s 29 of the Limitation of Actions Act 1974 (Qld) for a declaration that he has been under a disability since 19 April 2004 for the purposes of that section.

Brisbane Barrister – David Cormack

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