Elms v State of NSW

CATCHWORDS : Extension of time - s 60C, Limitation Act 1969 - police officer, psychological injury

LEGISLATION CITED : Crown Proceedings Act 1988 (NSW) - ss 3 & 5 Limitation Act 1969 (NSW) - ss 18A, 60C & 60E

Commonwealth of Australia v Lewis [2007] NSWCA 127 Commonwealth v Smith [2005] NSWCA 478 Holt v Wynter (2000) 49 NSWLR 148 CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122 New South Wales v Fahy [2007] HCA 20 Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81 Sydney City Council v Zegarac (1998) 43 NSWLR 195

PARTIES : Brian Elms - Plaintiff State of New South Wales - Defendant

COUNSEL : Mr B Toomey QC with Mr D J Price - Plaintiff Mr D Mallon - Defendant

SOLICITORS : Philip Sim & Associates - Plaintiff McCabe Terrill Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14607/2006 - BRIAN ELMS v STATE OF NEW SOUTH WALES

JUDGMENT (Extension of time - s 60C, Limitation Act 1969 - police officer, psychological injury) 1 HER HONOUR: By summons filed 18 September 2006 and by notice of motion filed 6 June 2007, the plaintiff seeks an extension of time pursuant to s 60C(2) of the Limitation Act 1969 (NSW) (the Act) to file and serve the statement of claim that he verified on 23 May 2007, within 21 days of the Court's determination of this notice of motion. 2 The plaintiff is Brian Elms. The defendant is the State of New South Wales. The plaintiff relied on his affidavits dated 23 February 2007 and 6 June 2007. 3 There was much dispute as to whether the statement of claim properly particularised the plaintiff's claim. Mr Toomey QC, Counsel for the plaintiff, submitted that it was not necessary to rely on a statement of claim, but rather for the plaintiff to establish that he is "claiming to have a cause of action" (see s 60C(2)). Counsel for the defendant, Mr Mallon, submitted that before a plaintiff can proceed with an application under the Limitation Act he had to have a statement of claim in proper form so as to allow the Court and the defendant to know the case that the plaintiff wishes to bring. In any event, there is a draft statement of claim in evidence before this Court. 4 The statement of claim relevantly pleads that the proceedings are brought against the defendant pursuant to ss 3 and 5 of the Crown Proceedings Act 1988 (NSW). The plaintiff was an employee of the New South Wales Police Service between 24 January 1977 and 7 February 2003, and that during the course of his employment with the New South Wales Police Service, the defendant owed him a duty of care. The plaintiff pleads that during the course of his employment with the defendant he was subjected to incremental strain and emotional disturbance culminating in November 1999 when the defendant's failure to address the emotional strain and disturbance to which he had been subjected resulted in him suffering a psychological breakdown. The plaintiff alleges that the defendant, by its servants and or agents, was guilty of negligence whereby he suffered injury and loss (S/C, [1]-[5] - Annexed to aff of plaintiff, 6/06/2007). 5 Particulars of negligence are plead in paragraph (a) to (v) which state: "(a) failure to devise, institute and maintain a safe system of work so as to avoid injury to the plaintiff. (b) failure to adequately warn the plaintiff of the dangers incidental to his work. (c) failure to provide the plaintiff with adequate training to perform his duties. (d) failure to implement an appropriate training program designed to enforce in the plaintiff his personal awareness and how to effectively cope with the stress and stresses that he was exposed to. (e) failure to have the plaintiff psychologically assessed or adequately assessed as to his suitability to perform his duties. (f) failure to provide the plaintiff with any or adequate psychological counselling and or other counselling. (g) failure to have the plaintiff psychologically assessed at regular intervals whilst he was performing his duties. (h) failure to conduct its operations as not to expose the plaintiff to unnecessary risk of injury. (i) failure to take any or adequate measures to prevent the plaintiff's identity as an undercover police officer being revealed to known criminals. (j) failure to take any or adequate measures to prevent contact between the plaintiff and target Police Officers following undercover police operations. (k) failure to respond or adequately respond to the plaintiff's fears for his safety; (l) failure to properly plan, implement, monitor and or supervise duties assigned to the plaintiff; (m) failure to respond and or adequately respond to the plaintiff's concerns for his welfare and or well being; (n) failure to introduce and or properly maintain a system of care for the psychological well being of the plaintiff; (o) failure to establish and or maintain good and recognised procedures for the assignment of or withdrawal from undercover duties of police officers in the position of the plaintiff; (p) failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the plaintiff into mainstream policing duties; (q) failure to establish good and recognised procedures for the counselling and or debriefing of undercover police officers in the position of the plaintiff; (r) failure to have the plaintiff psychologically or operationally debriefed or adequately debriefed following his transfer from undercover duties; (s) failure to implement any system or adequate system to provide for the early identification of symptoms of stress or "burn-out" in officers in the position of the plaintiff by his supervisors; (t) failure to provide the plaintiff with support when attending Court in exposing him to contact with offender/s and or offenders' associates; (u) failure to appropriately respond to the plaintiff's complaints about the conduct of fellow employees of the defendant; (v) systemic failure to take reasonable care for the plaintiff's safety and wellbeing. 6 On this topic, Kirby J in New South Wales v Fahy [2007] HCA 20 at [135] had this to say: "The duties of police officers sometimes present them with circumstances of violence, horror, death, anger and destruction. In such circumstances, the risk of PTSD as a consequence of employment duties is far from far-fetched or fanciful. It is actual and real. A reasonably careful employer would not simply occasionally praise and exhort its employees and wash its hands of the responsibility to minimise the risks and dangers of such stress. It would do what is reasonable to prevent and minimise the dangers. What is reasonable will not, and could not, involve elimination of all such risks. But preventative and supporting strategies are known and available. Conformably with the discharge of the duty of care imposed by the common law of Australia on employers, appropriate protective strategies have to be devised, adopted, maintained and enforced."

The relevant statutory provisions 7 Section 18A of the 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." 8 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." 9 Section 60E relevantly 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." 10 In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 11 In relation to ss 60C & E of the Act, Mason P in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197 referred to propositions that were uncontroversial. They are: "(1) Section 60C confers a judicial discretion.

(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 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well-known principles." 12 The plaintiff bears the onus of proof. The principles concerning prejudice have been considered by the Court of Appeal in Holt v Wynter (2000) 49 NSWLR 148, 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 [147]. 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. 13 The cause of action accrued on 20 November 1999. That was the day the plaintiff reported off sick and was the first time he recognised that he suffered from a psychological disability. At that time he suffered insurmountable distress, mood swings, causing severe depression, sleep deprivation, anger and anxiety (Aff of Brian Elms sworn 23/02/07 - [124]). The limitation period expired on 20 November 2002. The application seeking the extension of time was filed on 18 September 2006 which amounts to about 3 years, 10 months out of time. 14 The plaintiff has provided an extensive history and details of what he alleges are the facts and circumstances he relies upon to support his case. He was not cross examined at the hearing in this Court. The facts and circumstances he relies upon in this Court are very similar to those he relied upon when he took proceedings in the District Court (No 162/2003 between Brian Elms v Commissioner of Police) (Ex C). In the District Court proceedings, the plaintiff sued the Commissioner for Police pursuant to an application for determination which followed a decision of the Commissioner's delegate dated 7 February 2003. The Delegate decided that the suffering by the plaintiff of the infirmity of adjustment disorder with mixed anxiety and depressed mood as specified in the certificate of the Police Superannuation Advisory Committee dated 30 January 2003 was not caused by the member being hurt on duty. The plaintiff was seeking a hurt on duty classification. 15 The plaintiff submitted that there are findings made by Judge Robison DCJ which raise issue estoppels in this Court. Whether there are estoppels or not are matters for trial, should there be one. However, what the District Court proceedings do is illustrate that the plaintiff's employer had the opportunity to investigate the plaintiff's claim prior to 2004. It had the opportunity to cross examine the plaintiff on the truthfulness of his claim. It took up this opportunity. The claim in the District Court spanned the same period being from 21 November 1979 to 30 January 2003. The plaintiff's particulars in the District Court (Ex B in this Court) comprised of 20 pages. It was admitted into evidence in the District Court without objection. The plaintiff's second wife (a serving Police Officer) gave evidence at trial. His Honour stated that her evidence corroborated the plaintiff's evidence in relation to a number of significant aspects. His Honour accepted the plaintiff as being a credible witness. 16 On 3 December 2004, Judge Robison, delivered judgment. The plaintiff was successful. His Honour set aside the decision of the Tribunal and in substitution found that the plaintiff was suffering the infirmity of adjustment disorder with mixed anxiety and depressed mood caused by the plaintiff having been hurt on duty when he was a member of the Police Force. 17 Both in the District Court and this Court, the plaintiff provided the following information which, for the purposes of this application, I will take at its highest. Should this matter go to trial, I accept that some of these facts will be contested. I have focussed upon the considerations set out in s 60E. The plaintiff was born at Lithgow on 16 March 1952 and is 55 years of age. The plaintiff left school at the age of 15 years after gaining his Intermediate Certificate from Bathurst High School. After leaving school, the plaintiff obtained employment with companies engaged in ore prospecting in the local area. He also worked for the Forestry Commission as an earth mover operator, a local business in Bathurst as an intrastate and interstate semi-trailer driver, and as a road grader driver with a local Shire Council. 18 On 24 January 1977, the plaintiff, aged 24 years, commenced work with the NSW Police Service as a trainee. At the completion of the 10 week initial training course at the Redfern Academy he commenced general duties at Darlinghurst Police Station. A "buddy" training system was utilised and this involved him working with a senior constable of police for a short period of time. After a few months at Darlinghurst, the plaintiff was transferred to Kings Cross Police Station (No 3 Division). The plaintiff's early police career involved many investigations of suicides. In 1979, he undertook a high speed car course and attended serious motor vehicle collisions. 19 In 1987, he was transferred to the Special Support Group, Internal Security Unit. This is where he began to experience problems. He was involved in surveillance of suspected corrupt police officers and their criminal associates. The plaintiff had significant difficulties with his team leader, who the plaintiff claimed was unmotivated and did not brief or debrief his team. Sergeant (name provided) was ultimately transferred due to lack of motivation, and subsequently arrested and jailed for conspiracy, involving a bribe with a bookmaker. He was with the unit for six months before receiving any formal training. At one stage, members of the plaintiff's own Squad conducted surveillance on his wife. 20 In March 1989, the plaintiff was conducting covert surveillance when the Police Radio transmitted that the police had received an emergency 000 call regarding a male armed with a rifle acting suspiciously. The vehicle registration provided was the vehicle being driven by the plaintiff. The plaintiff immediately left the scene but was pursued by a Tactical Response Police vehicle, and other general duties police through Sydney CBD, before eluding them and fleeing to the "safe house". The plaintiff was told after the event by his colleagues, "You look terrible BP you are shaking and are as white as a ghost". The Detective Inspector (name provided) laughed, and said "Lucky you weren't caught, it was probably a set up. They would know by now they are being watched". 21 On one occasion, the plaintiff recalls his workmate, Detective Constable (name provided) was killed in a motor vehicle collision, but his team members and him were unable to attend the funeral, as he was told that it may "jeopardise current and future operations". 22 After moving to the City of Sydney Police Station, he undertook a surveillance course, and was seconded to the Independent Commission Against Corruption (ICAC). On 16 August 1995, two ICAC officers and the plaintiff made a verbal complaint regarding corrupt conduct of certain Surveillance team members. A conciliation process followed. The plaintiff also reported the behaviour to the ICAC Commissioner, but was later told to perform menial tasks and not return to the surveillance team. The plaintiff was eventually told there was no position available for him, and that he should apply to return to the NSW Police Service. The plaintiff was transferred to the Kogarah Patrol, where he felt apprehensive, as the commanding officer had been suspended due to the Commission's investigations. The plaintiff later contacted the Office of the New South Wales Ombudsman, but the Ombudsman's office advised that they lacked the legislative power to investigate ICAC matters. 23 The plaintiff's affidavit documents a long and complex history with various branches of the NSW Police Service and ICAC. He discusses his role at a Communications Centre in Tamworth, in which he frequently experienced faulty equipment, and a lack of trained staff. He worked long hours without breaks. He was appointed Acting Inspector Centre Manager. 24 On 3 September 1999, the plaintiff submitted a report that stated that he would cease his role as centre manager. He deposed that after 2 years of added responsibilities, constant pressures in the work place and unwarranted criticism, including false allegations and personal threats, that he was not in a position to carry on his role within the communications group. After contemplating suicide, but returning to work, the plaintiff finally felt like his world was "collapsing". He says that never received any counselling or support from the Police Service until he reported off sick on 20 November 1999. 25 The plaintiff has never returned to work after 20 November 1999, and sought to claim his illness as a work related injury. Through the Police Association, the plaintiff retained solicitors to act for him in proceedings for a medical discharge, which were not ultimately completed until 7 February 2003. As previously stated, the medical discharge of the plaintiff was not classed as a "hurt on duty injury". The plaintiff then brought an application in the District Court to have the injury classified as hurt on duty, which he said was a lengthy and difficult process that was not completed until December 2004. 26 On 25 October 2005, plaintiff became aware of his capacity to claim damages against the State of New South Wales when he read an article in the Daily Telegraph regarding former Police Officer Robert Ridley's case for damages against the NSW Police Service. It was this article that prompted him to contact his former solicitors seeking an opinion as to whether or not it was possible to bring a claim. He received no response, and so subsequently contacted his present solicitors. The plaintiff stated that it was not until he read this article that he thought that he may have a claim for damages. On 18 September 2006, these proceedings were commenced. 27 There is medical evidence to support his claim that he is suffering from Major Depressive Episode plus Post Traumatic Stress Disorder (PTSD) or a major depressive episode on the background of chronic anxiety based symptoms or a dysthymic disorder (Ex C, reports of Drs Klug and Bettesworth). These medical reports were tendered in the District Court. The doctors were not required for cross examination. There is also the report of Maxine Walden a psychiatrist, which takes a different view. This, although obtained by the Commissioner of Police, was not tendered in the District Court. Ms Walden diagnosed the plaintiff as suffering from a Paranoid Personality Disorder. 28 In terms of s 60E(1)(b) and (f) there is no evidence that had the plaintiff commenced the proceedings within the limitation period that any evidence would not have been lost, or that the defendant's conduct induced the plaintiff's delay. 29 Although the plaintiff's police career dates back to 1977, a period of 30 years, the events that gave rise to the plaintiff's psychiatric condition occurred mainly from 1987 to 2004, a period of 16 years. The nature of the plaintiff's illness is that it took place over a fairly lengthy period of time. From 1999 to date, the plaintiff was not at work at all but pursuing his entitlements, and being unsuccessful, took legal proceedings in the District Court. With the passing of time, I accept that there will be presumptive prejudice. The defendant chose not to put on any evidence of actual prejudice. Very similar allegations were made in District Court proceedings in 2004. The defendant would have had the opportunity of investigating them and already has had the opportunity of testing the plaintiff's evidence. There are medical reports in existence. 30 In the exercise of my discretion it is my view that from the beginning of 1987 onwards it is just and reasonable to extend the limitation period. It is my view that the defendants have not suffered significant prejudice and will be afforded a fair trial.

Costs 31 Costs are discretionary. In Wynter, Sheller JA said at [121]: "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." - also see Commonwealth of Australia v Lewis [2007] NSWCA 127). 32 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 [2005] NSWCA 478 at [160]. Under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, 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]. 33 The plaintiff submitted that this case falls within this exception, as the defendant's opposition was unreasonable, as the defendant's opposition was purported to be based on the fact that the respondent knew nothing about the facts of the case, when it had been provided with voluminous particulars during the hurt on duty claim by the applicant in the District Court. The plaintiff further submitted that the respondent was cross-examined extensively in the hurt on duty claim, and the defendant in these proceedings was content to have the matter heard without further cross-examination of the plaintiff. The defendant submitted that the parties in these proceedings are different to the parties in the hurt on duty claim, and the "respondent" is not the same. The defendant further submitted that in the absence of a properly pleaded statement of claim setting out clearly the material facts relied upon, it is not correct to say that the defendant knew about the facts of the case. 34 Although the defendant was unlikely to be successful, given that the substance of the plaintiff's claim had already been litigated in the District Court, the defendant's opposition cannot be said to be wholly unreasonable [my emphasis added]. Hence, I should follow Wynter. The plaintiff is to pay the defendant's costs.

(1) The plaintiff is granted an extension of the limitation period from 1 January 1987 pursuant to ss 60C and 60E of the Limitation Act 1969 (NSW).

(2) A statement of claim is to be filed and served within 14 days.

(3) The plaintiff is to pay the defendant's costs of the application. **********

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