Cruwys v The State of NSW

Supreme Court of NSW|2005-11-21|Before: Gleeson CJ, Meagher JJ, Mr P, Harrison J

Background 4 The plaintiff was born on 8 November 1963 and is currently 42 years of age. In 1981 he completed the Higher School Certificate at Westfield High School. The plaintiff has completed TAFE courses in Data Processing Concepts (1982); a Supervision Certificate (1983); a three year course in Advanced Management (1992); and a Vietnamese Language Course at UTS (1994). In 1996 he commenced a Bachelor of Business at Charles Sturt University but since 1999 he has struggled to complete this course due to poor concentration, tiredness and the inability to retain information. 5 After the plaintiff left school he had various jobs which included working as a computer operator, a gym instructor and a truck driver's offsider. In 1985, at 22 years of age, the plaintiff commenced employment with the NSW Police. He attended an eleven-week training course at the Goulburn Academy. After completion of that course he undertook the position of a probationary constable. 6 From February 1985 until 30 January 1988 the plaintiff was stationed at Flemington and Auburn performing general duties. From 31 January 1988 until 1 May 1988 he was stationed at Kings Cross Major Crime Squad South performing investigation work. From 2 May 1988 until 25 June 1988 he was stationed at Flemington performing general duties, from 26 June 1988 until 7 December 1991 stationed at Auburn, and from 8 December 1991 to 9 May 1993 stationed at Wentworthville. From 9 May 1993 to 18 December 1993 the plaintiff was stationed at Special Operations Group, Prospect, performing special operations and investigative duties. From 19 December 1993 to 21 October 1999 he was performing general and beat duties, stationed at Cabramatta. 7 The plaintiff submitted that as a result of his experience of these incidents his psychiatric state worsened over time, particularly from 2003 onwards.

The first incident - the Newcastle Earthquake 8 On 28 December 1989 the plaintiff attended the Newcastle earthquake and for four days was required to guard danger points. This involved dragging people to safety from dangerous buildings. The plaintiff had been very scared because he heard buildings creaking as he was hurrying to remove people from them. He had feared for his life. The plaintiff did not attend a doctor. 9 The plaintiff was the only one from Auburn Police station who was posted to Newcastle to assist after the earthquake occurred. There are four boxes that represent the coronial file concerning the Newcastle earthquake. Those documents are located at the Local Court at Newcastle. According to the defendant's investigator, there is no reference to the plaintiff in those documents (Aff Peter Maxwell, 1/03/2006).

The second incident - the kidnapping 10 On or about 27 May 1990 the plaintiff attended a kidnapping incident during which the offender pointed a rifle at him. He was shocked and scared that he would be shot. The offender was subsequently arrested two kilometres away from the site of this incident by an arrest team that included the plaintiff. The plaintiff has no recollection of anything that occurred between the time the gun was pointed at him and the time the offender was arrested. When the plaintiff returned to the station he had bouts of crying and could not forget the incident. He also experienced bouts of uncontrollable shaking and nightmares. 11 The plaintiff was visited by a welfare officer and told that he could see a counsellor. Other police officers advised him not to see a counsellor because it would not look good on his police record. The plaintiff was allocated station duties.

The third incident - Strathfield Massacre 12 On 17 August 1991 the plaintiff attended the Strathfield Massacre. He arrived at the shopping centre soon after the shootings had occurred and saw the carnage. The plaintiff helped injured people and guarded the scene at the coffee shop where a number of people had been murdered. He was there for several hours and could not avoid walking on pieces of human bone, which he crushed underfoot. The owner of the coffee shop had been pushed through a plate glass window, his throat slit, and had died. The sight of his body devastated the plaintiff. He had known the coffee shop owner as some years earlier he had attended the premises when the owner had been robbed. 13 The plaintiff attended a debriefing with other police officers but did not find this helpful. The debriefing consisted of 12 police officers being put into one room. They discussed the incident for about 15 minutes and spoke to Dr Westerlink for about 5 to 10 minutes. The plaintiff spoke individually to Dr Westerlink and told her that he felt frustrated. She did not have time to talk to him then but told him that he could arrange to talk to her or to someone else later (t 16.5-32). He did not attend a doctor.

The fourth incident - shot with simmunition 14 On 22 August 1997 the plaintiff instructed police officers at firearm and simulation training sessions. During an exercise the plaintiff was shot with simmunition by a police officer under his instruction. He did not receive counselling. The plaintiff attended his general practitioner, Dr Williams, for treatment.

The fifth incident -lead poisoning 15 In August 1998 the plaintiff attended the Cecil Park pistol range in order to re-train other police officers in the use of the Glock pistol. During that time he was exposed to and/or inhaled particles of lead. The plaintiff noticed black mucous coming from his nose. Shortly afterwards he began to feel unwell. The plaintiff attended Dr Williams for treatment. A number of other officers were also exposed to lead. WorkCover prosecuted the Police department in the Industrial Relations Commission in Court Session for a breach of s 15(1) of the Occupational Health and Safety Act 2001. The New South Wales Police entered a plea of guilty. The bulky court records have been produced.

Progression of injury 16 In 1991 the plaintiff saw Dr Skinner a psychiatrist. He did so on the advice of his solicitor because he had lodged a Victim's Injury Compensation Claim in relation to the incident at Auburn. The plaintiff's evidence is that Dr Skinner made an evaluation but "did not give any kind of advice or anything like that" (t 15.24).

17 In August 1997 following the fourth incident, the plaintiff began "to lose the ability to cope as well as I had done in the past". In September 1998 he was experiencing difficulty with concentration, retention of information, and headaches. Additional symptoms experienced by the plaintiff in late 1998 included low energy levels, aching joints, difficulty in decision-making, and loss of interest "in everything". The plaintiff stopped playing sport, gained 15kg, had difficulty sleeping and became irritable and forgetful. 18 In 1998 the plaintiff began having difficulty in dealing with some aspects of his employment. He experienced problems with decision-making, lost confidence, and became agitated, disappointed with his life and began to suffer mood swings. 19 In October 1999 the plaintiff was suffering from symptoms of a general feeling of hopelessness and helplessness. On 21 October 1999, while feeling a sense of hopelessness and helplessness, the plaintiff experienced an anxiety attack at work. On 22 October 1999 he sought assistance from Dr Williams for symptoms of anxiety and being unable to control his moods. On 11 November 1999 Dr Williams prescribed him medication to control his anxiety. 20 On 1 November 1999 the plaintiff consulted Geoffrey Orme, a psychologist. The plaintiff was agitated, distressed, suffering panic attacks, and experienced symptoms of depression and anxiety. Mr Orme diagnosed him as suffering from an adjustment disorder with mixed features of anxiety and depression as a result. With the plaintiff's permission, Mr Orme contacted Dr Williams. Medication was discussed and the plaintiff was commenced on Aropax (report 26/04/2000). The plaintiff, during cross examination said that when he consulted Mr Orme he did not know is he was complaining of depression (t 20.22). There are two things to be said about these consultations with Mr Orme. The first is that a psychologist does not usually make a diagnosis of a psychiatric disorder. The second is that even if he did, it is my view that the plaintiff was not told that he had an adjustment disorder, nor did he know he was suffering the diagnosable psychiatric condition of depression. The Police Department refused to pay for any more consultations with Mr Orme. As a result the consultantions ceased. 21 The counselling that the plaintiff had received, up to this point, focused on the events he had witnessed or was about to witness. The advice given to himpertained to the psychological symptomology that he might experience in the short term. While there can be no doubt that by 1 November 1999 the plaintiff was aware that he was suffering difficulties in relation to his mood, he was not aware that he was suffering from a diagnosable psychiatric illness. 22 On 7 February 2000 the plaintiff first consulted a psychiatrist Dr Tsang. On 15 February 2000 in his claim for hurt on duty, the plaintiff wrote, "On all of these occasions, I did not receive proper de-briefing and I feel that this has contributed to my illness." (Ex 1) During cross examination the plaintiff was asked what he meant when he stated in that report that he did not receive proper debriefing, the plaintiff answered that he never got any counselling or any real benefit of debriefing (t 18.45-52). 23 On 2 November 2000 Dr Tsang says (report 30/09/2003) that at the end of the consultation with the plaintiff, given his continuing mood disturbances with features of major depression, he advised a change of medication. I do not take this to be a diagnosis of depression (DSMIV) nor do I accept that the plaintiff was told of this opinion. 24 As at December 2000 the plaintiff admitted that he knew that the anxiety attacks and irritability requiring antidepressants were related to his work (t 23.35-55). In September 2000 the plaintiff became increasingly agitated, beginning to feel disappointed with his life and suffering mood swings. These symptoms continued. 25 In March 2003 the plaintiff's psychiatric condition significantly worsened. The plaintiff said that he became aware of his condition when he suffered an anxiety attack whilst stationed at Liverpool. Prior to that time, he had thought that he would recover and that he would be able to return to the Police Service. At this time the plaintiff knew he "could no longer cope" with his problems. His medication increased and he understood that he had "changed for good". After suffering that anxiety attack, on 26 March 2003, he knew he was not going to be able to continue work in the Police Service and that he could not cope with his ongoing symptoms. On 26 March 2003 the plaintiff left work and did not return. The plaintiff's GP Dr Williams (report 19/02/2004) recorded: "Unfortunately things deteriorated and on 21 February 2003 Mr Cruwys presented with acute headaches, anxiety and worsening depression. He has (sic) struggling to concentrate and motivate himself. He could no longer perform duties asked of him especially custodial duties. He found it hard to make decisions. He was advised to increase his Efexor XR form (sic) 32.5 mg second daily to 75 mg daily. It came to a head on 26 March 2003 after a 2 hour interview with his commander. He was suffering headaches, lacked energy and motivation and he informed me he was allegedly making poor decisions. I felt he was unfit to continue work as a police officer on medical grounds and advised him accordingly." 26 On 25 March 2003, the plaintiff lodged a claim for "Hurt on Duty Benefits". His claim referred to his injury being "Depression, Anxiety and Post Traumatic Stress disorder". The form states that these injuries occurred as a build up of traumatic incidents which occurred and the plaintiff had not been properly debriefed (see Ex 2). In April 2003 the plaintiff began to see Olga Jakubouvsky, psychologist. 27 On 7 May 2003 Dr Tsang diagnosed the plaintiff as suffering from major depression. Dr Tsang (report 30/09/2003) considered that the relationship between the plaintiff's major depression and his employment as a police officer as complex but on the balance of probability, Dr Tsang considered the plaintiff's employment with the Police department as a significant precipitating and perpetuating factor in the major depression. I accept that there is no evidence either by Dr Tsang or the plaintiff to the effect that the plaintiff was told of his diagnosis or that it was explained to him. 28 In August 2003 the plaintiff attended a further appointment with Dr Tsang. The plaintiff stated that it was at this time that he understood for certain that he had a psychological injury which prevented him from working as a police officer. Later in 2003 the plaintiff ceased to consult Dr Tsang because he could not afford the costs of consultations. He applied for medical discharge from the Police Service. 29 On 29 September 2003 and 14 November 2003, the plaintiff consulted Dr Klug. Dr Klug explained to the plaintiff the difference between having a few beers to debrief and actually getting to the "nitty gritty" of why the plaintiff was feeling a certain way when talking of incidents and then trying to disassociate those feeling (25.35-45). 30 Dr Klug, in a report dated 21 January 2004, based on these two interviews made the following diagnoses: "Mr Cruwys, from a psychiatric perspective, has suffered from a major depressive disorder over recent years and this has been substantially in response to work-related stresses. He has also suffered from recurrent and probably chronic anxiety-based symptoms since 1989/90 in response to exposure to severely traumatic situations. He probably suffered an acute PTSD [post traumatic stress disorder] in 1989/90 and then a reactivated PTSD when he was shot with the simmunition round. … In summary, Mr Cruwys' psychiatric conditions are in direct response to work-related stresses and may have been exacerbated by lead poisoning. There are no other significant premorbid factors contributing to his current presentation. I believe that the illnesses suffered by Mr. Cruwys would have been suffered by a person of normal fortitude. If he had had access to psychiatric and/or psychological interventions from 1989 / 90 then his prognosis would probably be better now. He should at least have been given sufficient instruction, education, warning or similar knowledge to enable him to recognize his symptoms, particular[ly] on exposure to severely traumatic situations such as the Strathfield massacre. It is without doubt that he should have been evaluated psychiatrically and/or psychologically at that time and also with exposure to subsequent severely traumatic situations. He certainly should have been reviewed following being shot with the simmunition round and also following the discovery that he had a high blood level of lead…Certainly the lack of support from the bureaucracy with respect to lead poisoning has contributed to an exacerbation of his depressive and anxiety-based symptoms." 31 The plaintiff deposed in his affidavit sworn 9 August 2004: "On 6 August 2004 my solicitor sent me the report of Dr Klug dated 21 [January] 2004 and I read it. That was the first time that I understood that if I had had psychological interventions from 1989 to 1999 that I would probably be better than I am now. That was the first time I had been told that if I had been given sufficient instruction, education, warning or had similar knowledge to enable me to recognise my symptoms that I could have got help sooner and be better now. Also that I should have been evaluated as to my health status at the time of incidents like the Strathfield Massacre…This was the first time I knew that a doctor thought I that I should have been reviewed by a health worker having been shot with a simunition round and following the discovery that I had a high blood level of lead…". 32 On 21 April 2004 the plaintiff received advice from his solicitor regarding the reasonable prospects of success of his claim. In late April 2004 instructed his solicitor to commence common law proceedings. 33 On 4 May 2004 the summons seeking an extension of the limitation period was filed. 34 On 14 May 2004 the statement of claim was filed. 35 On 11 July 2005 an amended statement of claim was filed.

Limitation Periods 36 Section 18A of the Limitation Act states: "18A Personal injury

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to: (a) a cause of action arising under the Compensation to Relatives Act 1897, or (b) a cause of action that accrued before 1 September 1990, or

(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims." 37 Section 60C provides: "60C Ordinary action (including surviving action)

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 38 Section 60G states: "60G Ordinary action (including surviving action)

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 39 Thus the limitation periods for the five incidents pleaded by the plaintiff are set out below. Incident Accrual Expiration of Limitation Period 1 28 December 1989 28 December 1995 2 27 May 1990 27 May 1996 3 17 August 1991 17 August 1994 4 22 August 1997 22 August 2000 5 August 1998 August 2001

40 The first, second and third incidents fall under s60G and I. The fourth and fifth incidents occurred within five years of the relevant expiration period and so fall under s60C and E. 41 Sections 60C and E are contained in subdivision 2. Subdivision 2 is headed 'secondary limitation period' of the Act. Sections 60G and I are contained within subdivision 3 of the Act. The purpose of subdivision 3 is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time (s60F). Subdivision 3 also applies to causes of action that accrue on or after 1 September 1990. Section 60G provides for further discretionary extension of limitation periods for causes of action accruing on or after 1 September 1990. 42 The approach to be adopted in dealing with applications for extension of limitation periods is that expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

The first, second and third incidents - Sections 60G and I 43 Section 60I is as follows: "60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision." 44 The relevant threshold requirements are that in order to make an order under s 60G the court must be satisfied that either (a)(i) the plaintiff did not know that personal injury had been suffered, or (a)(ii) that the plaintiff was unaware of the nature or extent of the personal injury suffered, or (a)(iii) that the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period (or earlier when proceedings might reasonably have been instituted); and (b) that the application has been made within 3 years after the plaintiff became aware or ought to have become aware of the matters listed in (a)(i)-(iii). 45 In relation to physical injuries, an applicant may be aware of the extent of his or her injury even though he or she does not expect all its precise consequences. As long as the consequences of a physical injury are of a kind that an applicant expected to occur the applicant will be aware of the extent of the injury. However, there is also a psychiatric component of that injury, the lead poisoning was a physical injury. The other incidents involve psychological injuries. 46 The situation is somewhat different where there is a diagnosable psychiatric illness. A recent authority on ss 60C, E, G and I of the Act is Commonwealth of Australia v Smith [2005] NSWCA 478, concerning an appeal against a time extension for a psychological injury claim arising from the collision between HMAS Melbourne and HMAS Voyager. Handley JA, at [7], noted that where an extension of the limitation period is sought in a case of mental injury the question is whether the victim was aware that he or she suffered from a recognisable psychiatric illness. Santow JA (with whom Handley and Basten JJA agreed) affirmed the finding of the primary judge that the plaintiff did not know that he had suffered a mental injury until he read a psychologist's report (at [21], [99] and [192]). 47 The extent of the injury is to be determined at the date of the hearing the application for an extension of time and not the expiration of the limitation period - see Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 12 per Dawson, Toohey, Gaudron, McHugh and Gummow JJ and State of New South Wales v Luke Aiden Knight [2002] NSWCA 185. 48 In Smith Santow JA, at [88], first considered the application of (b) as its ambit ("became aware (or ought to have become aware)") is wider than (a) (concerned only with actual awareness or knowledge). See also Harris and CRA Limited & Costain Australia Limited v Martignago (1996) 39 NSWLR 13. Santow JA (with whom Handley JA agreed) further stated, at [110], that a plaintiff, "to avoid constructive knowledge, must have taken all such action as it was reasonable for him to take, taking into account not only any mental impairment but also his personal characteristics and circumstances" - see also Telstra Corporation v Rea [2002] NSWCA 49.

Section 60I(1)(a)(i) and (ii) 49 The knowledge required by s 60I(1)(a)(i) is actual knowledge - see Commonwealth v Smith at [101], Harris and CRA Ltd. 50 The plaintiff for a number of years when confronted with a traumatic situation in the course of his duties as a police officer, tried to put it behind him and continue performing his duties to the best of his capabilities. He had symptoms such as anxiety, general feelings of hopelessness and helplessness and mood swings. 51 Between 1999 and 2004 there were three significant psychiatric diagnoses made. The first is on 1 November 1999 where a psychologist Mr Orme "diagnosed" the plaintiff as suffering from adjustment disorder. For the reasons given earlier in my judgment I accept that the plaintiff was not aware of this "diagnosis". The second was that of Dr Tsang psychiatrist on 7 May 2003 and the third by Dr Klug on 21 January 2004. The second diagnosis occurred on 7 May 2003 when Dr Tsang diagnosed the plaintiff as suffering from major depression. 52 On 21 January 2004 Dr Klug diagnosed major depressive disorder, an acute PTSD, which had reactivated. It is on 9 August 2004 that the plaintiff says that when he read Dr Klug's report he understood the importance that appropriate psychiatric intervention during 1989 to 1999 would have enabled him to recognise his symptoms and get help sooner. 53 Going back to August 2003 the plaintiff had written (some five months earlier) that his injuries (as described in his hurt on duty benefit form) were "depression, anxiety and post traumatic stress disorder". By August 2003 had been receiving the benefit of psychiatric assistance, he knew could no longer cope with his ongoing symptoms, he "had changed for good" and was not going to be able to cope with work. He was aware that he had not returned to work since March 2003. Also in August 2003 the plaintiff says that he understood for certain that he had a psychological injury which prevented him from working as a police officer. 54 Despite what the plaintiff says about his understanding when he read Dr Klug's report, it is my view that it was in August 2003 that the plaintiff was aware that he had a diagnosable psychiatric illness, namely depression, although he described it as a psychological injury. Also in August 2003 the plaintiff was aware of the nature and extent of his psychiatric injury. He was aware that he had changed for good and that his condition was so serious that he would not be able to return to work in the Police Force.

Section 60I(1)(a)(iii) - The connection between the personal injury and the defendant's acts or omissions 55 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff's particulars of negligence - see Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, Priestley, Meagher JJ, unreported 22 August 1995). 56 The particulars of negligence include failure to provide the plaintiff with any or any adequate preparation, instruction, advice, training or education as to the safe performance of the work, including, but not limited to (i) the recognition of signs and/or symptoms of any psychiatric and/or psychological condition and (ii) upon recognition of signs and/or symptoms of any psychiatric and/or psychological condition, the necessity to seek appropriate treatment in the nature of debriefing, counselling or any other intervention effective in the reduction and/or elimination of the condition; failure to provide the plaintiff with any or any adequate respite from work; failure to provide the plaintiff with any or any adequate and appropriate assistance to enable the plaintiff to develop the skills necessary to cope with and recover from mental trauma by his work; failure to exercise any adequate or effective supervision of the plaintiff's work such as would have facilitated prompt detection of the risk of injury and effective remedial action; failure to monitor the performance of the plaintiff's work in such a way as to facilitate the identification of potential adverse effects on his psychological well-being and treatment of them in sufficient time (or at all) so as to avoid or reduce the risk of injury or the severity of mental harm that might otherwise ensue; failure to provide the plaintiff with any or any adequate counselling or any other appropriate system of professional and/or emotional support in sufficient time as to avoid or reduce the risk or severity of injury; and failure to devise, institute and/or maintain any system of debriefing , inoculation and counselling following traumatic events at work (ASC paras 12(k) to (q)). 57 The only debriefing the plaintiff had received was on one occasion after the Strathfield Massacre. On 15 February 2000 in his claim for hurt on duty the plaintiff wrote, "On all of these occasions, I did not receive proper de-briefing and I feel that this has contributed to my illness." (Ex 1) In cross examination the plaintiff was asked what he meant when he stated in that report that he did not receive proper debriefing. The plaintiff answered that he never got any counselling or any real benefit of debriefing (t 18.45-52). He says that he did not understand that he could go back to a counsellor and say that he was not coping and needed some help. At this time he thought that counselling meant being "debriefed" or spoken to or helped in any way (t 14). However, later during cross examination the plaintiff agreed that he knew in February 2000 that the symptoms (he had) were due in part to the failure of his employer to debrief him (t 23). But his understanding of debriefing was that it meant going down to the pub or maybe a quick talk (t 25-26). The plaintiff said that his understanding of debriefing changed between the time he filled out the hurt on duty form in 2000 and Dr Klug's report in 2004. 58 On 25 March 2003 the plaintiff had written on his hurt on duty form that his injuries occurred as "a build up of traumatic incidents which occurred and the plaintiff had not been properly debriefed." This was the second time the plaintiff made the complaint of not having been properly debriefed, although this time he would have appreciated that it was a result of the cumulative effect of him experiencing a number of traumatic incidents. 59 On 6 August 2004 the plaintiff deposed that when he read Dr Klug's report he became aware that if he had had psychological interventions from 1989 to 1999 he would probably be better than he is now. Further, the plaintiff also became aware that if he had been given sufficient instruction, education, warning or had similar knowledge to enable him to recognise his symptoms and sought help sooner he would be better now. I accept that it was not until 6 August 2004 that plaintiff became not aware that if he had been given sufficient instruction, education and warning he would have been able to recognise his symptoms he could have sought help sooner and would be better now.

Section 60I(1)(b) 60 If I am wrong I will consider s 60I(1)(b). For the purposes of s 60I(1)(b) of the Act, did the plaintiff become aware, or ought to have become aware, of the matters listed in s 60I(1)(a) at the time of the expiration of the limitation period (or earlier when proceedings might reasonably have been instituted)? What a person ought to know or be aware of for the purposes of s 601(I)(b) must necessarily take account of the circumstances of the particular applicant - see Rea. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances -per Santow JA (Handley JA agreeing). Relevant factors may include the effect of the applicant's mental impairment, instructions (if any) not to discuss the matter or circumstances bearing on the applicant's capacity to consult a psychiatrist. Personal characteristics such as shyness and embarrassment, which inhibit a person from seeking knowledge about his condition, are also relevant - see Commonwealth v Smith at [103], [109] and [110] per Santow JA (Handley JA agreeing). 61 For the purposes of s 60I(1)(b) for the reasons given earlier, the plaintiff ought to have become aware that he suffered a personal injury and the nature and extent of that injury by August 2003. It is difficult to say whether the plaintiff ought to have been aware that had he received sufficient instruction and education and warning he would have recognised his symptoms, sought help sooner and would have been better on 23 March 2003 or 6 August 2004. It does not matter because both dates fall within the period stipulated by s 60I(1)(b). 62 The plaintiff has passed s 60I(1)(a) (i), (ii) and (iii) thresholds within the time period stipulated in s 60I (1)(b) for the first three incidents.

Section 60G(2) - "just and reasonable" 63 The principles concerning prejudice have been considered in by the Court of Appeal in Wynter (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at para 119 where their Honours stated that the effect of the High Court decision in Taylor is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 64 Studdert J in Blyth v Commonwealth of Australia [2005] NSWSC 721 applied Commonwealth of Australia v Diston [2003] NSWCA 51 (per Sheller JA), in questioning whether there was a "real possibility of significant prejudice to the defendant in the event that this application is granted" [38]. "Significant prejudice" means such prejudice as would make the chances of an acceptably fair trial unlikely: South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33]. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean at [27]. 65 There is no claim that the defendant suffers from actual prejudice except in relation to the Newcastle Earthquake. There are five boxes of records that have been produced in relation to the earthquake because of the lack of corroboration from the police records that the plaintiff was there. Amongst that documentation are names of the police officers who attended. They can be asked whether they remember the plaintiff. Aside from enquiries as to others' recollection of the plaintiff's involvement in the earthquake, there is documentation which may verify or contradict what the plaintiff says occurred there. Initially, the defendant's investigator deposed of lack of records and of witnesses not being located. Documents and witnesses whereabouts have since been forthcoming. However, I accept that the defendant will suffer some prejudice due to the effluxion of time since these events occurred. 66 I turn now to consider whether it is just and reasonable to extend the limitation period. It is my view that the plaintiff has a real cause of action to advance. I accept that due to the effluxion of time there will be presumptive prejudice. I have reached the conclusion that the defendant will have a fair trial. It is my view that it is just and reasonable to extend the limitation period. 67 Leave is granted to the plaintiff to extend the limitation in relation to causes of action occurring on 28 December 1989, 27 May 1990 and 17 August pursuant to ss 60G and I of the Limitation Act 1969.

The fourth and fifth incidents - Sections 60C, E 68 Section 60E is as follows: 60E Matters to be considered by the court

(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h) the extent of the plaintiff's injury or loss." 69 In relation to ss 60C & E of the Act, Mason P in Zegarac at 197 referred to propositions that were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the eight factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's Second Reading Speech that are set out in the other judgments, and which McHugh J discusses in Taylor at 551-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well-known principles. 70 Powell J in Zegarac, at 240-241, stated that three things may be said about s 60C and s 60E. He agreed with proposition (3) expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do, and secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made, lies on the applicant.

The length and reasons for delay - s 60E(a) 71 The plaintiff's explanation for delay is that he did not become aware of his condition until March 2003, when he suffered an anxiety attack whilst stationed at Liverpool. Prior to that time, the plaintiff had thought that he would recover and be able to return to the Police Service. However after suffering this anxiety attack the plaintiff knew he was not going to be able to continue work in the New South Wales Police and that he could not cope with his ongoing symptoms. On that day he left work and has not returned. 72 In May 2003 the plaintiff first saw his solicitor, Ms Smith. He came to understand that he might have a common law claim for damages for personal injury caused by psychiatric or psychological injury as a result of his employment with the NSW Police Service. He was not aware that there were any time limits that governed this type of claim prior to being told about time limits by Ms Smith in May 2003 when he had his first conference with his solicitor. 73 The plaintiff received advice from his solicitor regarding the reasonable prospects of success of his claim on 21 April 2004. He instructed his solicitor to commence common law proceedings in late April 2004. 74 After the plaintiff first saw his solicitor, after becoming aware that he had a permanent disability, the solicitor investigated his claim and obtained medical reports. This took approximately 11 months. The cause of delay in commencing proceedings after the plaintiff had sought advice from a solicitor was the investigation and substantiation of the plaintiff's claim.

Extent to which delay caused evidence to be lost - s 60E(b) 75 There is no evidence that the plaintiff's failure to commence the proceedings within the limitation period has meant that any evidence has been lost.

Sections 60E(c)-(f) 76 The injury became known to the plaintiff in August 2003 for reasons given earlier in this judgment. At this time the plaintiff also became aware of the nature and extent of the injury and of a connection between the injury and the State's act or omission. 77 There is no conduct by the State of New South Wales that induced the plaintiff to delay bringing action.

Steps taken the plaintiff to obtain medical, legal or other expert advice - s 60E(g) 78 As previously stated, in May 2003 the plaintiff obtained legal advice from Ms Smith, solicitor. The plaintiff stated that he came to understand that he might have a common law claim for damages for personal injury caused by psychiatric or psychological injury as a result of his employment with the Police Service. 79 The plaintiff has served medical reports of Drs Wai-On Phoon dated 28 July 2003 and 8 December 2003, Leo Tsang dated 30 September 2003, Mario Benanzio dated 24 November 2003, Peter Klug dated 21 January 2004 and 4 May 2004 and John Williams dated 19 February 2004. Drs Lovell and Samuel have medically examined the plaintiff for the defendant. Dr Louise Crowell had earlier examined the plaintiff for the defendant. Part 33 particulars have been filed.

The extent of the plaintiff's injury or loss - s 60E(h) 80 The plaintiff has lost his career as a police officer. He looked forward to working as a police officer until his retirement. At the date of his medical discharge he held the rank of Leading Senior Constable with prospects of promotion to the rank of Sergeant. He was earning a salary of $47,785 gross per annum. He retains a significantly lower residual earning capacity. His future income stream is also considerably less secure than had he not been discharged from the Police Service. The plaintiff's future economic loss is estimated at $200,000 (excluding loss of superannuation and non-renewal benefits). 81 For the reasons given earlier it is my view that the defendant will be afforded a fair trial. The plaintiff has discharged his onus and I am satisfied it is just and reasonable to extend the limitation period in respect of the causes of action which arose on 22 August 1997 and during August 1998.

Costs 82 Costs are discretionary. Ordinarily, a successful application for an extension of a limitation period, who allows him or herself to get out of time, should pay the costs of the application unless the defendant's opposition was wholly unreasonable - see Wynter at 147. The defendant's opposition cannot be said to be wholly unreasonable. 83 However, there is no rule that binds a judge to deny costs to an applicant for an extension of the limitation period. A costs order for such an application is a matter of practice and procedure within the discretion of the primary judge - see Commonwealth v Smith at [160]. 84 Section 98(1) of the Civil Procedure Act 2005 reads:

98(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. 85 Part 42.1 of the Uniform Civil Procedure Rules 2005 reads:

"Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 86 Under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules, there is no requirement for a successful application for an extension of the limitation period, to pay the costs of the application unlike the old Part 52A r 17 of the Supreme Court Rules 1970 - see also Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81 at [15]. 87 Where an application seeking an extension of time has not allowed him or herself to get out of time because there was no intention to make the claim within time, the costs of a successful application for an extension of the limitation period should be costs in the cause - see Spaulding. 88 In this case, the plaintiff did not allow himself to get out of time because there was no intention to make a claim in time. It was only when the plaintiff realised that he could no longer continue with his employment that he expeditiously sought legal advice and commenced these proceedings. In my view the appropriate order for costs is that the costs of the application be costs in the cause.

(1) Leave is granted to the plaintiff to extend the limitation period in relation to causes of action occurring on 28 December 1989, 27 May 1990 and 17 August 1991 pursuant to ss 60G and I of the Limitation Act 1969.

(2) Leave is granted to the plaintiff to extend the limitation period in relation to causes of action occurring on 22 August 1997 and August 1998 pursuant to ss 60C and E of the Limitation Act 1969.

(3) Costs are costs in the cause. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Safety Act 2001(NSW)

CITATION : Cruwys v The State of NSW [2006] NSWSC 469

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Blyth v Commonwealth of Australia [2005] NSWSC 721 Commonwealth of Australia v Diston [2003] NSWCA 51 Commonwealth v Smith [2005] NSWCA 478 Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 CRA Limited & Costain Australia Limited v Martignago (1996) 39 NSWLR 13 CASES CITED : Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, Priestley, Meagher JJ, unreported 22 August 1995) Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128 McLean v Sydney Water Corportion [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 State of New South Wales v Luke Aiden Knight [2002] NSWCA 185 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81 Telstra Corportion v Rea [2002] NSWCA 49

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