Is a psychiatric condition a legal disability to extend the limitation period?

by Cameron Seymour


By Cameron Seymour, Partner, Mullins Lawyers


On 19 September 2012, His Honour Douglas J considered whether a psychiatric condition constituted a legal disability sufficient to extend the limitation period (Bergemann v Tilly’s Administrative Services Pty Ltd [2012] QSC 266).

His Honour stated:-

“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”.

In evidence, Psychiatrist, Dr Varghese noted the Plaintiff:-

·         Gave a “clear and concise” statement to an Inspector regarding the subject work place accident;

·         Made multiple claims for Workers Compensation following the subject accident;

·         Was able to continue working;

·         Had the capacity to properly instruct his solicitors;

·         Noted a report by another Psychiatrist that during the relevant period the Claimant’s psychiatric condition was in remission.

By contrast, the evidence of Dr Cantor, Psychiatrist, was that the Claimant’s psychiatric condition was not in remission for any significant period and that he appeared “unusually avoidant”.

The Plaintiff’s WorkCover Case Manager gave evidence that throughout his claim, “the Plaintiff demonstrated an understanding of what she was conveying to him by always being interested in what was being said in the report and anxious to know what would happen next in terms of his treatment …….. she described Mr Bergemann as a very good Claimant, never moody and always doing what she asked him to do and always attending his treatments …..”

Douglas J concluded:-

“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 McIntrye, 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”.

His Honour found that the limitation period did not cease to run due to the Claimant suffering a legal disability by virtue of his psychiatric condition and in any event the Plaintiff was unable to establish a material fact of decisive character to extend his limitation period on the submission that he did not know until a particular date that his psychiatric condition would prevent him from being able to work.  His Honour found that such material fact was known to the Claimant before the relevant date.


For more information please contact Cameron Seymour, Partner on 07 3224 0360 or



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