Dickinson v State of NSW

CATCHWORDS : Extension of time to commence proceedings - ss 60C & E - Limitation Act 1969 (NSW) LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60C & E BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA, unreported, 7 March 1997) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 CASES CITED : Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143 Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 John Dickinson (Plaintiff) PARTIES : The State of New South Wales (Defendant) FILE NUMBER(S) : SC 20358/2002 Mr M Joseph SC with Mr I Butcher (Plaintiff) COUNSEL : Mr D Mallon (Defendant) Ms Smith of Oates & smith (Plaintiff) SOLICITORS : Ms Goodham Crown Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20358/2002 - JOHN DICKINSON v THE STATE OF NEW SOUTH WALES

JUDGMENT (Extension of time to commence proceedings - ss 60C & E, Limitation Act 1969 (NSW)) 1 MASTER: By notice of motion filed 22 August 2002 the plaintiff seeks an order extending the time within which to commence proceedings against the defendant pursuant to s 58 and/or s 60G and/or s 60C of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 20 June 2003. The defendant did not rely upon any affidavit evidence.

2 For the purposes of this application I have taken the plaintiff's case at its highest. I observed the plaintiff carefully when giving evidence and being extensively cross-examined and I accept his evidence. For the purposes of this application I find the following facts. 3 The plaintiff was born on 11 October 1953 and is currently 49 years of age. He attended Newcastle Boys High School in New South Wales until approximately 16 years of age. Having successfully completed his Year 10 School Certificate, the plaintiff commenced an apprenticeship for the trade qualification of fitting and machining. While completing components of the apprenticeship at Belmont Technical College, Lake Macquarie, the plaintiff worked with the Sulphide Corporation, Newcastle. After completing the apprenticeship in 1973 the plaintiff worked with the Master Builders' Association, Newcastle for about one year as a draftsman. 4 In 1975 the plaintiff joined the NSW Police Service. After an initial training period of six weeks at Redfern Academy the plaintiff served at Kogarah Police Station performing general duties. At no time during his training with the NSW Police Service was the plaintiff educated as to the psychiatric or psychological injury that could be sustained in the course of his duties as a Police officer. Nor during his training was the plaintiff taught of the causes, treatment and measures that could be taken to avoid, prevent, stop or minimise psychiatric or psychological injury. In 1979 the plaintiff left the Police force but rejoined in May 1982.

The Forensic Ballistic Section 5 In 1987 the plaintiff commenced work with the Forensic Ballistic Section, Forensic Services Group. On joining the Forensic Ballistic Section in 1987, the plaintiff held the rank of Constable First Class. He was subsequently promoted to the rank of Senior Constable in August 1990 and then Sergeant in December 1992. The plaintiff remained with that section until his last day of active service on 24 December 1999 at which time he held the rank of Sergeant. On 2 August 2002, the plaintiff was medically discharged from the NSW Police Service. 6 The work of the Forensic Ballistic Section relating to matters such as homicide investigations, victim wounding and suicide was delineated into operational and non-operational duties. Operational duties included crime scene attendance, the gathering of crime scene evidence, subsequent laboratory examination and analysis of such evidence and identification of deceased persons. Non-operational duties involved and included firearms/prohibited weapon examination and laboratory procedures, exhibits recording, storage and general office administrative duties. Until about January/February 1999, the plaintiff performed both operational and non-operational duties within the Forensic Ballistic Section. From February 1999, he performed only non-operational duties. While attached to the Forensic Services Group, an important aspect of the plaintiff's duties involved training and participation in the internationally standardised protocols of Disaster Victim Identification duties in respect of traumatic incidents involving multiple deaths such as vehicle or aircraft accidents. 7 Depending on the type of crime, the plaintiff's duties between 1987 and 1999 included but were not limited to: rostered 8 hour working shifts and regular 24-hour on-call duties; attending incident scenes and/or mortuaries; physically handling bodies in making initial examinations of deceased victim(s), including victims of multiple homicides, the firearm-related deaths of children, badly burnt and partially burnt bodies, cadavers in varying stages of decomposition, bodies exhumed from makeshift graves; making initial wound(s) interpretation to assist investigating police with timely and accurate evidence by inspecting those wounds on the cadavers; interpreting the blood-tissue-bone matter spray patterns on surrounding surfaces, detailed examination of surrounding area (whether external, or inside buildings or motor vehicles), and physically handling the deceased and any bio-hazardous contaminated items in close proximity to the deceased; collecting, recording and packaging firearms and/or ammunition related evidence, or any evidence which may be subject to later examination/analysis. 8 In the 12 years the plaintiff was attached to the Forensics Ballistics Section he was directly involved in no less than 146 investigations such as: "(i) seventy-four homicide investigations (with assistance to other Forensic Ballistics Section members in approximately twenty five to thirty other homicide incidents) - involving over two hundred deceased victims, six incidents where offenders were fatally wounded by Police, ten incidents where offenders were wounded by Police, three incidents where police officers were fatally wounded in the execution of their duty, two incidents where police officers committed suicide, four incidents where police officers were wounded in the execution of their duty, thirty-seven matters of suspicious firearm--related suicide and forty-seven incidents of firearm wounding investigations,. (ii) The Disaster Victim Identification (DVI) role in forensic investigation of the Downunder Backpackers fire (1989) with six deceased victims, the Clybucca Flat (Kempsey) tourist coach crash (1989) with thirty-five deceased victims, Newcastle earthquake (1989) where nine deceased victims were recovered from the Newcastle Workers Club, including the DVI aspects at the Port Arthur Historic Site Incident (1996) with a total of thirty-five deceased victims, (iii) Police Bomb Technician duties with the forensic investigation of sixty-seven separate incidents involving suspect explosive devices (involving the direct manual approach, appraisal and rendering safe of the suspect devices), two attempted bombings, the Post Blast Analysis (PBA) investigation of six explosion incidents (including one fatal incident), and the destruction of unsafe commercial explosives on six separate occasions."

9 Of the many incidents with which the plaintiff was involved, some particular incidents are more vivid in his memory. These include: an incident in about 1989 which involved the death of a fellow Police officer, Allen McQueen; an incident in about 1989 which involved the death of a Mr David John Gundy; the on-going investigation throughout late 1993 into early 1994 which involved the deaths of seven backpackers in the Belanglo State Forest in the Southern Highlands of New South Wales; an incident in about 1993 which involved the deaths of Phillip Hudson and his twin 3-year-old daughters Bianca and Chantell; an incident in about 1995 which involved the deaths of fellow Police officers, Robert Spiers and Peter Addison, including the death of civilian John McGowan; the Port Arthur historic site incident in late April 1996, where fifty-four victims suffered injuries as a result of weapon discharge and thirty-five of those victims died at the scene as a result. The plaintiff gave a detailed account of his work at Port Arthur in Ex 1.

Counselling 10 After the Clybucca Flat coach crash in 1989, a psychologist spoke to the DVI team members and discussed with them what they would probably be feeling during the course of the shift, dealing with dismembered bodies of the crash victims. There is no doubt that the nature of the duties carried out by the plaintiff made his job a very stressful one. 11 In 1991 the plaintiff underwent psychological testing. It was to be done on a regular basis but this did not occur. In 1997 the plaintiff consulted Dr Goldman a clinical psychologist, on about four occasions. On the final day at Port Arthur, namely 7 May 1996, as the Forensic Ballistic Group from New South Wales were leaving the foyer of the Tasmanian Police complex to travel to the airport and return to Sydney, they met with Mr David Mutton of the Psychology Unit, Medical Branch of the New South Wales Police Service who had just arrived in Hobart. Mr Mutton was sorry that he had not been able to catch up with the group but he would catch up with them back in Sydney. The plaintiff was never contacted by or had any conversation with Mr David Mutton in relation to the Port Arthur historic site incident. Two weeks after they had returned from Hobart "a round table discussion" was organised for the personnel who had attended Port Arthur with consultant psychologist, Mr David Goldman. 12 In 1997 the plaintiff was aware he was suffering a general feeling of depression, insomnia and emotional outbursts. He did not receive any feedback either, formal or informal, from Mr Goldman on what the results of those counselling services were. 13 From July 1997 until June 1998 the plaintiff was placed in the role of Leader, Weapons Disposal Section for the duration of the Commonwealth Gun Buy Back Scheme. In July 1998, the plaintiff returned to operational duties in the Forensic Ballistics Section. During this period the plaintiff was still required to continue with the preparation of technical briefs, including laboratory examination and analysis of exhibits, in order to meet the needs of outstanding court matters. The symptoms that had led the plaintiff to see Mr. Goldman had not altered or changed. 14 The plaintiff believes that in 1999 the psychological unit of the Police department was closed down. In early 1999 the plaintiff began having difficulty dealing with aspects of his employment. The plaintiff could no longer get close to bodies nor handle them for the purposes of making detailed examinations, finding it difficult examining crime scenes. At about that time the plaintiff deposes to having a conversation with Senior Sergeant Wayne Hoffman where he voiced the problems he was having with his work. As a result of that conversation, the plaintiff was removed from on-call duties and did not return to that role. Soon after, the plaintiff's condition deteriorated and he began to display symptoms such as problems with decision-making, gradually declining confidence, loss of memory of standard workplace procedures, becoming withdrawn and uncertain, developing strong anti-social attitudes and not wanting to venture outside his home. Despite ceasing smoking two years earlier, the plaintiff resumed smoking. 15 In September 1999, as a result of a general memorandum distributed by the Forensic Services Group Administration for all Forensic Services Group staff to undergo psychological assessment, the plaintiff was sent by arrangement of the NSW Police for psychological assessment by Senior Sergeant Jennifer Lette, a qualified psychologist, of the Police Psychology Unit. The consultation lasted about two hours and the plaintiff completed a document that consisted of about five hundred questions. After that consultation the plaintiff was contacted by telephone by Senior Sergeant Lette and asked to re-attend for another consultation. 16 On 10 December 1999, the plaintiff attended two consultations with Dr Wright. At the conclusion of the second consultation, Dr Wright suggested the plaintiff take a break from work. The plaintiff took about three weeks off work. On 14 January 2000 before returning to work, the plaintiff again saw Dr Wright. At that stage the plaintiff understood that Dr Wright was advising him that he needed to take a break from his normal work in the Forensic Ballistics Section and needed to undergo treatment to try to get better. At this stage Dr Wright did not advise or mention to him that he was suffering any injury or disorder. 17 On 6 February 2000, the plaintiff made a claim for Hurt on Duty benefits. For the purposes of receiving the Hurt on Duty benefits Dr Wright on behalf of the Police Service examined the plaintiff. Prior to April or May 2000 the plaintiff formed the view that he did not want to go back to work because of the way he had felt when working in the Forensic Ballistics Section. At that time he felt his condition had improved and he realised that he could not go back to work because what he had been exposed to in that environment had caused his deterioration. In about April or May 2000 the plaintiff was first informed that he suffered from an illness and major depression. Also in April 2000 the plaintiff and his wife separated. 18 At about Christmas 2000 Dr Wright advised the plaintiff that he was suffering from depression. When Dr Wright first advised the plaintiff about depression he did not appreciate that it was a psychiatric injury or a psychiatric illness believing it was something that was temporary, that comes and goes. Dr Wright prescribed medication. The plaintiff first took medication in late December 1999. The plaintiff continued to take that medication for a period of two years until December 2001. 19 On 2 March 2001, the plaintiff made an application for medical discharge (see Annexure A to the affidavit of John Dickinson sworn 20 June 2003). 20 On 2 May 2002, the plaintiff saw Dr Canaris who advised the plaintiff that he was suffering from post-traumatic stress disorder. 21 On 31 July 2002, the plaintiff deposed that his solicitor advised him of Dr Wright's opinion, namely that Dr Wright believed that the plaintiff should have been given information as to the likely psychological consequences of repeated exposure to traumatic incidents, or if he had been given information on the availability of treatment to help deal with such psychological sequelae. If the plaintiff was given this information it would have enabled him to recognise the early symptoms of his psychiatric disorder and thus seek early intervention and that early intervention would have reduced the overall severity or duration of his condition. It was then that the plaintiff understood the acts and omissions that caused his psychiatric injuries. 22 On 2 August 2002, the plaintiff was medically discharged from the Police Service. For the purpose of his medical discharge the plaintiff was examined by consultant psychiatrists Dr David S. Berecry on behalf of the Police Service and Dr Michael D. McGrath on behalf of State Super SAS Trustee Corporation. 23 The plaintiff has not been employed since his medical discharge. 24 On 22 August 2002, this notice of motion and the statement of claim were filed. 25 On 16 February 2004, the plaintiff filed an amended statement of claim.

The Law 26 The plaintiff relies on ss 60G and I and/or 60C and E of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; 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; (2000) 31 MVR 467; [2000] NSWCA 143; 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. 27 Sections 60C and 60E are contained in subdivision 2. Subdivision 2 is headed 'secondary limitation period' of the Act. Section 60F is contained within subdivision 3 of the Act. Subdivision 3 also applies to causes of action that accrue on or after 1 September 1990. Section 60F provides for further discretionary extension of limitation periods for causes of action accruing on or after 1 September 1990. 28 The notice of motion was filed on 22 August 2002. The plaintiff's cause of action most likely arose between 1997 and 1999. Thus I will focus this judgment upon the provisions of ss 60C and E of the Act. 29 Section 60C provides: "Ordinary action (including surviving action)

60C(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." 30 Section 60E provides: "Matters to be considered by the court

60E(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;

(c) the time at which the injury became known to the plaintiff;

(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." 31 In relation to ss 60C and 60E of the Act, Mason P in Council of the City of Sydney v 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 8 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 order judgments, and which McHugh J discusses in Taylor at 552-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well - known principles. 32 Justice Powell in Council of the City of Sydney v 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. 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. 33 The principles concerning prejudice have been considered in Wynter, by the Court of Appeal (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 Brisbane South Regional Health Authority v 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. 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 v Sydney Water Corporation [2001] NSWCA 122. 34 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 35 The plaintiff's explanation for delay is that it was only on or about 22 August 2000, when he was advised by his solicitor Ms Smith that he came to understand that he may 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. Prior to that time, the plaintiff had not been aware that he had any entitlements to bring a claim for compensation over and above his Hurt on Duty entitlements and his superannuation/pension entitlements. He was not aware that there were any time limits which governed this type of claim prior to being told about time limits by Ms Smith in about 2 March 2001 when he had his first conference with his solicitor. 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. The defendant was aware of the existence of these proceedings from 28 March 2001. The statement of claim and notice of motion were filed on 22 August 2002. 36 The plaintiff did not become aware of the severity of his condition until about mid 2000. Prior to that time, he had thought that his condition would recover and that he would return to the Police Service. 37 I accept that with the passing of time since 1997, there will be presumptive prejudice. Extent to which delay caused evidence to be lost - s 60E(b) 38 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.

The time at which the injury became known to plaintiff - s 60E(c) 39 In 1997 the plaintiff was aware that he was suffering from symptoms of a general feeling of depression, insomnia and emotional outbursts. He sought counselling from Mr Goldman as outlined earlier in this judgment. The plaintiff was of the view that these symptoms were related to the things that he had seen. 40 In 1999 the plaintiff began having difficulty in dealing with some aspects of his employment such as finding it difficult to examine bodies and crimes scenes. His condition began to deteriorate and he experienced problems with decision making and lost confidence, became withdrawn, uncertain and developed anti-social attitudes. 41 In 1999 as a result of a psychological assessment conducted by the Police department, he was referred to a psychiatrist Dr Wright. Initially the plaintiff was advised to take a break from work. During that time the plaintiff thought that his psychological state was improving. In April or May 2000, Dr Wright advised that the plaintiff was suffering depression. The plaintiff believed that it was a temporary condition that came and went. In May 2000, Dr Canaris advised the plaintiff that he was suffering PTSD.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 42 On 31 July 2002, the plaintiff deposed that his solicitor advised him of Dr Wright's opinion, namely that he believed that the plaintiff should have been given information as to the likely psychological consequences of repeated exposure to traumatic incidents, or if he had been given information on the availability of treatment to help deal with such psychological sequelae. If the plaintiff was given this information it would have enabled him to recognise the early symptoms of his psychiatric disorder and thus seek early intervention and that early intervention would have reduced the overall severity or duration of his condition. It was then that he understood the acts and omissions that caused his psychiatric injuries. The counselling that the plaintiff had been given in the past focussed on the events he had witnessed or was about to witness. It was advice concerning psychological symptomology that might be experienced in the short term. The psychological counselling given by Mr Goldman did not involve a diagnosis of a psychiatric condition. It was only when the plaintiff was advised of the opinion of Dr Wright by his solicitor on about 31 July 2002 that he came to appreciate that the conduct of the NSW Police Service had caused his condition and that there were steps that the NSW Police Service could have taken which would have prevented, lessened or cured his condition. Prior to this realisation the plaintiff had thought that his condition had been caused by the circumstances of the crimes or accidents he had worked upon. 43 It is my view that it was in April/May 2000 that the plaintiff became aware that his psychiatric condition had not improved. At this stage he was aware that he could not return to the Forensic Ballistic section of the Police department. It was in 2001 that the plaintiff sought discharge from the Police department. Since discharge in 2002, the plaintiff has not been employed. He is 49 years of age and his employment prospects are not good.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 44 There is no conduct by the defendant which induced the plaintiff to delay bringing action. Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 45 The plaintiff in his affidavit has named the officers with whom he worked. Most of them are still serving Police officers. Medical reports of Drs Wright and Canaris have been served. Drs Ellard and Champion have medically examined the plaintiff for the defendant. Dr Berecry had earlier examined the plaintiff for the defendant. Part 33 particulars have been filed.

Just and reasonable 46 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. As previously stated, I accept that due to the effluxion of time there will be presumptive prejudice. The defendant has not deposed to any actual prejudice it will suffer.

47 In Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 the Court of Appeal considered the approach it should adopt when exercising its discretion under s 151(D)(2) of the Workers Compensation Act 1987 (NSW) in a case where the respondent has not suffered prejudice by the delay and the applicant has not diligently pursued his or her claim. In that case, Ipp AJA rejected the view that the real question to be answered was that posed by Toohey and Gummow JJ in Taylor, namely, whether the delay had made the chance of a fair trial unlikely. Instead, the question that has to be asked is what is fair and just, or what the justice of the case requires. 48 Taking the above factors into account 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. 49 Costs are discretionary. In Wynter, Sheller JA at paras 147-148 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. 50 The court orders that:

(1) Leave is granted to the plaintiff to extend the limitation period in relation to causes of action pleaded as occurring from 1991 pursuant to ss 60C and E.

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

(3) The defendant is to file and serve a defence within 14 days. **********

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