Glarvey v State of NSW

LEGISLATION CITED : Limitation Act 1969 - ss 60C & E Uniform Civil Procedure Rules - 49.19

Koehler v Cerebos (Australia) Limited [2005] 214 ALR 355 CASES CITED : New South Wales v Heins [2005] NSWCA 258 Priest v State of New South Wales [2006] NSWSC 12

PARTIES : David Glarvey - Plaintiff State of New South Wales - Defendant

COUNSEL : Ms K Nomchoung - Plaintiff Mr M Hutchings - Defendant

SOLICITORS : Marsdens - Plaintiff I V Knight, Crown Solicitor - Defendant

LOWER COURT JUDICIAL OFFICER : Registrar Riznyczok

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20556/2001 - DAVID GLARVEY v STATE OF NEW SOUTH WALES

JUDGMENT (Appeal decision of Registrar - Application for leave to file Amended Statement of Claim) 1 HER HONOUR: By notice of motion filed 30 March 2006 the plaintiff seeks firstly, that the orders made by Registrar Riznyczok dated 7 March 2006, to delete paragraphs 11 to 24 of the proposed amended statement of claim (ASC) be set aside; secondly, that the plaintiff be given leave to file and serve the proposed ASC; and thirdly that the orders made by Registrar Riznyczok dated 7 March 2006 that the plaintiff's pay the defendant's costs of the notice of motion of 23 November 2005 and costs thrown away, be set aside. The plaintiff is David Glarvey. The defendant is the State of New South Wales.

Extension of limitation period 2 On 24 February 2004 Master Malpass (as he then was) delivered a judgment in relation to an extension of the limitation period under s 60C and E of the Limitation Act 1969. Associate Justice Malpass made an order that the limitation be extended up to and including 21 June 2001 (the date that the statement of claim was filed) in relation to a back and psychiatric injury. I have respectfully reproduced some portions of his Honour's judgment. The plaintiff was a police officer who claims damages in respect of what is said to be a severe psychological reaction incurred during his service as a police officer. The claim is founded on negligence and breach of statutory duty (SC [17] - [21]). The plaintiff's problems are said to have arisen during the period from about 1997 until March 2000. 3 Paragraph [5] of the statement of claim 921/06/2001) before Master Malpass pleaded: "5. Throughout the period 1985 until the present time, the Plaintiff was exposed to a number of traumatic events in the course of his employment with the Defendant." 4 The balance statement of claim pleaded events that occurred from 1996 onwards. The events are as follows. In 1996, the plaintiff became involved in the gun buyback scheme. In 1997, he became aware of irregularities in payments being made to firearm dealers. He reported the irregularities. He contends that the treatment he received thereafter gave rise to stress problems. These problems continued thereafter. In January 2000, he was transferred to Camden. While at Camden, it is said that he suffered from further problems which arose from overwork and lack of support. The plaintiff's case is that his lack of recovery from the problems arising in 1997 left him unable to deal with the challenges arising from his work at Camden. He ceased work in May 2000. 5 Thus, in the statement of claim before Master Malpass it was pleaded that from 1985 to the present time, the plaintiff was exposed to a number of traumatic events in the course of his employment with the defendant. It was a general statement. It did not refer to specific events.

The amendments to the statement of claim 6 By notice of motion the plaintiff sought leave to file an amended statement of claim. It was heard by Registrar Riznyczok. The defendant opposed the orders sought. 7 In the proposed ASC from [11] - [23] the plaintiff pleaded incidents which occurred between 1985 to 1995. All of those paragraphs fall under the heading "Pre-existing Vulnerability to Psychiatric Injury". The incidents referred to are that in 1985 an elderly lady was badly burned, in 1986; he attended two gruesome suicides, in 1987; and he attended the scene of an aeroplane crash. The plaintiff says that he was not offered any formal or informal debriefing or counselling in relation to these incidents [11] - [15]. 8 In late 1987 when the plaintiff joined the Tactical Response Group (TRG) he was required to attend violent incidents which involved threats and/or the actual use of firearms. In 1989 the plaintiff was transferred to the Special Weapons Operation Section (SWOS) where he assisted in witness protection duties. In 1991 he was responsible for the planning of operations that involved the total security of protected witnesses [16] - [20]. In November 1993, as a result of a number of incidents the plaintiff was diagnosed with Adjustment Disorder and Anxiety [21]. In 1995 the plaintiff was stationed at Bankstown performing general duties [23]. 9 Paragraph [24] reads: "24. By reason of the abovementioned stressful events which occurred in the course of his duty, prior to 1997, the Plaintiff was vulnerable to psychiatric injury caused by further workplace related stressors in the course of his employment with the Defendant and the Defendant was aware or ought to have been aware of such vulnerability. 10 The pleading from paragraph [25] to the end of the ASC refers to events after 1996. Those paragraphs are not the subject of dispute between the parties. 11 At [69] it is pleaded that from January 1997 to 19 May 2000 the defendants breached its duty of care it owed to the plaintiff and as a result the plaintiff suffered injury, loss and damage [my emphasis added]. It is not alleged that prior to January 1997 the defendant breached the duty of care it owed the plaintiff. The plaintiff alleges that he suffers from the diagnosable psychiatric conditions of chronic post traumatic stress disorder, major depression and adjustment disorder. 12 On 7 March 2006 Registrar Riznyczok delivered an extempore judgment. The proposed amendments in paragraphs [11] - [24] of the proposed amended statement of claim were disallowed. The plaintiff was ordered to pay the defendant's costs thrown away by the amendments. The plaintiff has sought a review of the Registrar's decision.

Review 13 Rules 49.19 of the Uniform Civil Procedure Rules (UCPR) 2005 (NSW) provides: "Review of registrar's directions, orders and acts

If a registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, review the direction, order or act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit." 14 The approach I have taken in this review is that I have informed myself of all the material that was before the Registrar when he made his decision and of the decision itself. While fresh affidavit evidence may be tendered, there is none (see Rule 49.23). No notice of contention has been filed (see Rule 49.24). I have made my own decision based on the material before me after having the benefit of counsel's submissions. 15 The plaintiff's grounds of review are firstly, in determining whether paragraphs [11] - [24] of the proposed ASC ought to be permitted, the Registrar misconstrued the matters in those paragraphs as supporting new causes of action whereas they only plead matters going to foreseeability of damages; secondly, the Registrar erred in not permitting paragraphs 11 to 24 on the ground that the original statement of claim did not adequately refer to matters occurring before 1997; thirdly, the Registrar erred in finding that it was unfair to include the matters contained in paragraphs 11 to 24; fourthly, the Registrar failed to properly consider the plaintiff's authorities in relation to allegations of reasonable foreseeability and the manner in which such allegations are required to be pleaded, in particular the decision of the High Court in Koehler v Cerebos (Australia) Limited [2005] 214 ALR 355 and the decision of Johnson J in Priest v State of New South Wales [2006] NSWSC 12; fifthly, the Registrar erred in finding that the plaintiff would require an extension of time pursuant to the Limitation Act 1969 in order to include the matters pleaded in paragraphs 11 to 24; and sixthly, the Registrar erred in ordering costs against the plaintiff in circumstances where many of the objections of the defendant were dismissed. The defendant had argued both before the Registrar and this Court, that by pleading vulnerability to psychiatric injury and events that occurred prior to 1996 the plaintiff has sought to circumvent the operation of the Limitation Act 1969. 16 Before the Registrar the parties referred to New South Wales v Heins [2005] NSWCA 258; Koehler and Priest. 17 On the topic of foreseeability of a psychiatric injury the High Court in a joint judgment in Koehler stated at [33] - [35]: "[33] In Tame v New South Wales; Annetts v Australian Stations Pty Ltd,14 the court held that "normal fortitude" was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.

[34] It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.

[35] The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee17 and signs given by the employee concerned." (Footnotes omitted) 18 In Priest his Honour Justice Johnson referred to Koehler at [69]. In Priest, the defendant the State of New South Wales sought to strike out the second amended statement of claim (SASC). At paragraph [9A] in the Priest statement of claim it was pleaded that by reasons of stressful events occurring in the course of his duty, prior to 1999, the plaintiff was vulnerable to further stressors in the course of his employment with the defendant. The SASC contained a narrative which could not be described as particulars, outlining alleged events concerning the plaintiff's service as a police officer between June 1984 and July 1991 SASC [10] - [22]). 19 Johnson J decided that paragraph [9A] of the SASC should be struck out because it did not contain an express allegation of reasonable foreseeability of psychiatric injury and stated at [71]: "71 It will be a matter for the Plaintiff to plead the reasonable foreseeability aspect of his claim as he sees fit. Whether that pleading accords with the Defendant's currently inferred understanding of this aspect of the Plaintiff's claim remains to be seen. My ruling ought not be taken to require the Plaintiff to plead this aspect of his claim in that way. That which the Plaintiff is required to establish concerning reasonable foreseeability ought comply with the principles in Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 390, 413-4; Tame v New South Wales [2002] 211 CLR 317 at 332-3 (paragraph 16), 343-4 (paragraphs 61-62), 385 (paragraph 201), and Koehler . No doubt, the Plaintiff will have regard to those principles in formulating his pleading in substitution for the current paragraph 9A of the SASC." 20 The ASC which was before the Registrar in these proceedings does not suffer the vice identified by Justice Johnson. It is the issue of foreseeability of injury is pleaded and it is to this issue that paragraphs [11] to [24] of the ASC are directed. It appears that the limitation argument was not raised in Priest. 21 In Heins, the State of New South Wales was sued by Mr Heins, a former police officer, for injuries allegedly caused by its negligence during his service. Heins served as a police officer from October 1986 until he was discharged on medical grounds on 7 March 2002. The statement of claim was filed out of time and extension of time under ss 60C and E of the Limitation Act was sought. The State of New South Wales opposed an extension of the limitation periods on the grounds of lapse of time, lack of records and the death of potential witnesses. The District Court judge held that an amendment restricting the plaintiff's claim to injuries suffered after 1 January 1996 cured any prejudice, and he extended the limitation periods to the date the statement of claim was filed. The appellant appealed to the Court of Appeal by leave. 22 On appeal, Handley JA in Heins said that the statement of claim as filed alleged (para 4) that the plaintiff had performed "general and plain clothes duties and was involved in a number of stressful and hazardous incidents including repetitive incidents in which he was exposed to cumulative distress and trauma whereby the plaintiff became ill and was … injured". 23 The statement of claim in Heins was amended during the hearing before the primary judge to add the words "Since 1 January 1996" to para 4. Thus the statement of claim contained an allegation of negligence extending over the whole of the plaintiff's police service from October 1986 until February 2000 with an allegation of injury from 1 January 1996. Handley JA stated that it meant that the extension as granted covered causes of action dating from 1 January 1996 based on negligence dating from October 1986. This paragraph in Heins is similar to paragraph [5] of the statement of claim before Associate Justice Malpass. 24 Handley JA stated at [13], [14] and [18]: "13 The plaintiff knew the nature of the stresses to which he had been exposed between 1986 and 1994 and their effect on him. His fellow police officers who were also involved in these incidents would have been aware of the nature of the stresses they created but it does not follow that this information was available to his superiors. In the absence of an appropriate system and procedures this information may only have been fully known to the plaintiff. In these circumstances proof that the defendant knew or should have known of the plaintiff's mental state would involve either proving particular occasions when his superiors were informed of his problems by other police officers or particular occasions when they personally observed his problems for themselves. These occasions have not been pleaded or particularised and these allegations would be open on the present statement of claim.

14 In these circumstances the defendant's claims of actual prejudice could not be dismissed as they were by the primary Judge. The defendant does not know the case it will have to meet on this statement of claim in respect of the plaintiff's service prior to 1 January 1996 and its strong case of actual prejudice in respect of this period remained unanswered. 18 The Judge therefore erred in concluding that the statement of claim, as amended, was an answer to the defendant's case on prejudice. In particular he erred in failing to take into consideration the nature and extent of the evidence that the statement of claim would permit the plaintiff to call at the trial as to events prior to 1 January 1996 and the important and potentially prejudicial effect of such evidence. He also failed to take into consideration the fact that the statement of claim did not properly plead the case that the plaintiff then intended to prove and that this alone was likely to prevent the defendant obtaining a fair trial. The Judge's exercise of discretion therefore miscarried and this Court must intervene and re-exercise the discretion." 25 The Heins statement of claim was then further amended to plead the plaintiff's case of negligence to acts and omissions on or after 1 January 1996 and would not allow evidence to be called relating to critical incidents or stressful events prior to this. Handley JA decided that the proposed amendments to the statement of claim restricted the plaintiff's case to events occurring on and after 1 January 1996. This would protect the defendant from the actual prejudice it would have suffered if the plaintiff had been permitted to rely on earlier events. 26 On 7 March 2006 Registrar Riznyczok in his judgment stated at [9] - [11]:

"9. I now address the real nub of the argument as to the matters pleaded prior to 1996. My attention was drawn to the case of New South Wales v Heins, a decision of Handley and Bryson JJA, (2005) NSWCA 258. I don't see it's relevance to the case before the Court today. It concerned issues as to whether amended statement of claim proposed at a limitations extension hearing before Garling DCJ adequately cured the prejudice that the appellant or defendant in the Court below would have faced in defending the proceedings. It was not addressed to whether a statement of claim should be amended. 10. My view is that the Master's decision effectively drew a line across where the cause of action commenced. In this case going through the Master's reasons it is quite clear that the question of prejudice in respect of the matters that were raised prior to 1996 were not canvassed. In my view it would be unfair at this stage to include those particulars in an amended pleading as it would effectively go outside the terms of the grant of leave given by the Court on 24 February 2004. 11. In my view the plaintiff should be allowed to file an amended statement of claim but should not be allowed to plead issues that relate to the pre-1996 matter unless the plaintiff obtains leave with through s 65 or the Limitation Act s 60I." 27 I respectfully disagree with the decision reached by the learned Registrar. Paragraph [5] of the statement of claim before Master Malpass referred to events occurring prior to 1996. It is this paragraph of the original statement of claim that has been expanded in the amended statement of claim. The pleadings in paragraphs [11] - [24] when read with paragraph [25] of the ASC limit the plaintiff to claiming that the defendant breached its duty or care from January 1997 onwards. It is from 1997 that that the plaintiff says the defendant should have been aware of the plaintiff's vulnerability and the foreseeability of psychiatric harm. The pleadings in paragraphs [11] - [25] fall within the scope of what was permitted by the New South Wales Court of Appeal in Heins. Hence I would allow those amendments to be included in the ASC.

Costs 28 Registrar Riznyczok ordered that the plaintiff should pay the defendant's costs of the amendment at the conclusion of the proceedings. 29 The plaintiff submitted that the costs order made by the Registrar should be set aside. The plaintiff's solicitor had forwarded a draft ASC to the defendant in a failed attempt to obtain its consent to the amendments prior to the filing of the notice of motion before the Registrar. According to the plaintiff, if the defendant's consent had been forthcoming that motion would have been unnecessary. However, costs are discretionary it usually follows that the plaintiff has to pay the costs thrown away by an amendment, although I accept that, ultimately the plaintiff was successful on the motion. I would not interfere with the Registrar's decision on costs. The defendant was unsuccessful on this motion for review of costs before me. Costs usually follow the event. The defendant is to pay the costs of the plaintiff's notice of motion filed 30 June 2006. 30 The decision of Registrar Riznyczok dated 7 March 2006 is set aside except as to costs. The costs order made by the Registrar is to stand. The plaintiff is to file and serve ASC within 14 days. The Court orders:

(1) The decision of Registrar Riznyczok dated 7 March 2006 is set aside except as to costs. The costs order is to stand.

(2) The plaintiff is to file and serve an amended statement of claim within 14 days.

(3) The defendant is to pay the costs of the plaintiff's notice of motion filed 30 June 2006. **********

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