Campbell v State of NSW

Mr T Ower (Plaintiff) COUNSEL : Ms W Strathdee (Defendant) Ms S Teerman of Messrs Matthews Dooley & Gibson (Plaintiff) SOLICITORS : Mr Dale Brooks GIO (Defendant) CATCHWORDS : Extension of time - s 151D Workers Compensation Act LEGISLATION CITED : Workers Compensation Act 1987 (NSW) - s 151D & 151D(2) Salido v Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Seib v Morton [2000] NSWCA 139, 26 June 2000 CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122 Parsons v Doukas [2001] NSWCA 128; (2001) 52 NSWLR 162 Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485 Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995) DECISION : (1) I grant leave to amend the name of the defendant to the State of New South Wales in lieu of the Department of Corrective Services; (2) The plaintiff is granted an extension of time within which to commence proceedings in this court for causes of action which have arisen since 1991 up to and including 14 November 2001; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20898/2001 - RAYMOND CAMPBELL v STATE OF NEW SOUTH WALES

JUDGMENT (Extension of time - s 151D Workers Compensation Act) 1 MASTER: By notice of motion filed 27 November 2001 the plaintiff seeks an order granting leave within which to commence proceedings pursuant to s 151D Workers Compensation Act 1987 (NSW). The plaintiff relied on his affidavit sworn 28 November 2001 and the affidavit of Sonya Teeman sworn 26 November 2001. Ms Teeman was cross examined. The defendant did not rely upon any affidavit evidence. A statement of claim has been filed. It is agreed that the named defendant is incorrect. The correct defendant is the State of New South Wales not the Department of Corrective Services. I grant leave to amend the name of the defendant to the State of New South Wales in lieu of the Department of Corrective Services. The plaintiff concedes that he is seeking an extension of time for those causes of action that arose after 1991. 2 The plaintiff was employed by the defendant as a prisons officer. The plaintiff claims that in April 1994 he was unreasonably ordered to be transferred from Parklea Prison to Parramatta Prison and that he was required to work under extremely violent and stressful conditions. The plaintiff submitted that the injuries, loss and damage were caused by the negligence of the defendant, its servants and/or its agents. 3 The particulars of alleged negligence against the defendant are firstly, ordering the plaintiff to be transferred when there were less senior and supernumerary officers available for transfer; secondly, misleading the plaintiff as to the reasons and necessity for the proposed transfer; thirdly, failing to follow the department's guidelines for transfers; fourthly, failing to consult and liaise with the plaintiff as to the proposed transfer; and fifthly, failing to provide any or any adequate counselling regarding proposed transfers. 4 More specifically, it is alleged that in about November 1995 the plaintiff attended a meeting of concerns and issues relevant to his employment and at that open meeting the plaintiff was unreasonably gagged by the presiding officers. The "gagging" caused the plaintiff loss, damage, such damage being caused by the negligence of the defendant, its servants and/or agents. Particulars of negligence are given in paragraph 5 of the statement of claim. 5 The plaintiff alleges that throughout the whole of his employment with the defendant he was exposed to extremely violet and stressful circumstances and events which caused him injury, loss and damage, such injury, loss and damage being caused by the negligence of the defendant by firstly, failing to provide a safe system of work; secondly, failing to provide a safe place of work; thirdly, failing to provide sufficient assistance to the plaintiff in his duties; fourthly, failing to provide reasonable management; fifthly, failing to adhere to and enforce appropriate guidelines at meetings; sixthly, failing to ensure that the plaintiff was counselled and debriefed after traumatic incidents which were common and frequent in the prison system; seventhly, failing to provide counselling and debriefing in circumstances where the defendant knew that the plaintiff required medical attention; and eighthly, failing to follow its own policy guidelines as to workplace management. 6 The plaintiff alleges that due to the defendant's negligence he has suffered a severe psychological disorder with suicidal and homicidal tendencies. On 28 November 1996 the plaintiff was medically retired. He has been in receipt of continuing workers compensation payments.

The law 7 I turn now to consider whether leave to commence proceedings should be granted. Section 151D(2) of the Act provides: "a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." 8 The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. Salido was recently considered by the Court of Appeal in light of the intervening High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 and Seib v Morton [2000] NSWCA 139, 26 June 2000. In Wynter the Court of Appeal held that the effect of the High Court decision in Taylor is that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 9 In Salido, at 532 Gleeson CJ set out the principles to be considered in the exercise of the discretion. These principles were further discussed in Parsons v Doukas [2001] NSWCA 128, (2001) 52 NSWLR 162. Although these principles refer to s 52(4) of the Motor Accident Act, they are equally applicable to s 151D(2) of the Workers Compensation Act. 10 They are: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's legal representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from the plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 11 The defendant submitted that the plaintiff has not discharged his onus and established that it is fair and reasonable to extend the time in which the action should be brought. 12 The cause of action accrued from April 1994. The limitation period expired on April 1997. The application seeking the extension of time was filed on 27 November 2001, ie. 3 years 7 months out of time. I accept that with the passing of time, there will be presumptive prejudice. The defendant did not file any evidence to demonstrate actual prejudice. 13 In 1999 the plaintiff initially consulted Ms Sonya Teeman of Matthews Dooley Gibson solicitors in relation to his workers compensation entitlements and any other possible claim including any entitlement at common law. Ms Teeman is unable to be specific as to the actual date in 1999 that the consultation took place. She has not retained her notes of that consultation. She fixed the year as 1999 from a diary. It is her recollection that in that consultation she advised the plaintiff of the limitation period and advised him that should he not commence proceedings during that time he may have problems in taking proceedings. 14 However at that 1999 conference Ms Teeman was concerned for the plaintiff and his psychological and physical wellbeing. She was concerned that if the plaintiff proceeded with a claim it would be significantly and severely detrimental to him and his family. Ms Teeman advised the plaintiff of his common law and workers compensation entitlements. She also advised the plaintiff with words to the effect "I am concerned that if you proceed with the claim it will have a detrimental effect on you and your family and I am not certain and confident that you are well enough to proceed with a claim and I recommend that you speak to your doctors to see whether they agree and whether you are well enough to provide instructions and proceed with a claim". 15 Approximately one to two weeks later Ms Teeman received a telephone call from the plaintiff stating words to the effect "I spoke to my doctors and they do not believe I am well enough to proceed with a claim and that it could damage me further". The plaintiff confirms that due to the extent of his injuries and continuing treatment he was unable to elect to exercise his common law entitlements. No further instructions were obtained and a claim at common law did not proceed. 16 In about January/February 2001 the plaintiff contacted Ms Teeman and made an appointment to see her. The plaintiff instructed Ms Teeman to obtain counsel's advice on the viability of a common law claim. The plaintiff's solicitor gave evidence that when she saw the plaintiff in January/February 2001 she formed the view that the plaintiff was in a different position now and could take proceedings. This view was based on her observations of the plaintiff and her conversations with Dr Liao. On 15 March 2001 the plaintiff's solicitor opened a file in relation to this common law matter. On 30 March 2001 the plaintiff's solicitor wrote to Drs Teoh and Leoni. On 4 July 2001 the plaintiff's solicitor received a report from Dr Teoh. On 20 November 2001 the plaintiff's solicitor wrote to Dr Vaughan and St John of God hospital. Aside from Dr Teoh the other doctors have not provided reports despite being reminded to do so. 17 Dr Ben Teoh a consultant psychiatrist (report dated 4 July 2001) stated that he had not seen the plaintiff since November 1998 and he felt that the plaintiff's progress with him was limited and he subsequently referred the plaintiff to another psychiatrist. Dr Teoh diagnosed the plaintiff as suffering from a severe psychiatric condition with features of obsessive compulsive disorder which was directly related to the traumatic experiences while employed as a prison officer with the defendant and this had been a substantial contribution to his psychiatric illness. 18 At present the plaintiff sees his general practitioner Dr Liao approximately once per week. He also attends Dr Hartley chief medical officer at St John of God hospital and Mr B Dunn a psychologist once per week. Since 19 November 2001 the plaintiff is presently admitted at St John of God Hospital, Richmond. He was last admitted to this hospital in early September 2001 for approximately three weeks. 19 On 14 November 2001 the plaintiff filed a statement of claim. Two weeks later, ie, 27 November 2001 the plaintiff filed a motion seeking an extension of the limitation period. 20 Hence the explanation for delay is essentially that the plaintiff's psychiatric state was such that he was unable to take common law proceedings until 2001. Even as at 2001 he is still undergoing intensive psychiatric treatment. I accept the plaintiff's explanation for the delay in commencing proceedings. 21 The defendant's counsel submitted that the plaintiff's solicitor was not as diligent as she should have been because of the non-retention of file notes and not acting expeditiously when the plaintiff had instructed her to take proceedings. It is important that solicitors act expeditiously when seeking an extension of the limitation period so as to minimise prejudice to the defendant. Whether or not the file notes were retained, I have no reason to doubt that the reason that the plaintiff did not commence proceedings was because he was not psychologically able to do so. 22 From January/February 2001, the time when the plaintiff was fit to give instructions, to when the statement of claim and notice of motion was filed a period of 10 months elapsed. The plaintiff's solicitor sought medical reports. She has had difficulty (and still has some difficulty) obtaining medical reports. By July 2001 only one medical report was received (despite being requested in March 2001). It was upon receipt of this report that the plaintiff was in a position to commence proceedings. The plaintiff's solicitor sought counsel's advice and proceedings were commenced. The solicitor was not tardy. 23 I turn to consider whether the plaintiff has a real case to advance. The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485, and Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995). The plaintiff was employed by the defendant. In 1998 Dr Teoh diagnosed the plaintiff as suffering from a severe psychiatric condition with features of obsessive compulsive disorder and came to the conclusion that his employment had a substantial contribution to his psychiatric illness. There is evidence to suggest the plaintiff has a real case to advance. 24 The plaintiff has been in receipt of workers compensation payments. It was conceded that some investigation would have been carried out by the defendant. The plaintiff's solicitor has spoken to the plaintiff's treating general practitioner. He is available to give evidence. The plaintiff has had extensive medical treatment, and although reports have not been made available, the doctors or their records can be subpoenaed. 25 It is my view that the defendant will not suffer significant prejudice. It will obtain a fair trial. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period against the defendant. 26 Costs are discretionary. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. The plaintiff should pay the defendant's costs. 27 The orders I make are:

(1) I grant leave to amend the name of the defendant to the State of New South Wales in lieu of the Department of Corrective Services.

(2) The plaintiff is granted an extension of time within which to commence proceedings in this court for causes of action which have arisen since 1991 up to and including 14 November 2001.

(3) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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