Gould v State of NSW

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) - Rule 14.20

Glarvey v State of New South Wales [2006] NSWSC 816 Gould v NSW [2005] NSWSC 1121 CASES CITED : Koehler v Cerebos (Australia) Limited [2005] 214 ALR 355 Priest v State of New South Wales [2006] NSWSC 12 State of New South Wales v Heins [2005] NSWCA 258

PARTIES : Pewter William Gould - Plaintiff State of New South Wales - Defendant

COUNSEL : Ms K Nomchong - Plaintiff Mr G Laughton SC with Mr N Newton - Defendant

SOLICITORS : Marsdens - Plaintiff Crown Solicitors Office - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20334/2000 - PETER WILLIAM GOULD v STATE OF NEW SOUTH WALES

JUDGMENT (Strike out paragraph of the statement of claim - forseeability of psychiatric harm) 1 HER HONOUR: The defendant has filed an amended notice of motion dated 16 August 2006 to strike out parts of the plaintiff's amended statement of claim. In an effort to avoid a long and tedious hearing involving most of the paragraphs in the amended statement of claim, after further negotiations between the parties, the plaintiff's Counsel agreed to redraft the amended statement of claim (ASC) as a second amended statement of claim and forward a copy to the defendant for its consideration. The course adopted by the parties is to be commended. The amended notice of motion dated 16 August 2006 is stood over to the Registrar's list at 9.00am on 16 October 2006. While the notices of motion in Reeves and Gould were heard together and the same issues overlap there are some differences so I have written separate judgments. 2 One issue was argued and it is to this issue that this judgment is directed. It is whether the pleading of [20A] of the ASC should be struck out. Paragraph [20A] of the amended statement of claim pleads: "By reason of the stressful and traumatic events occurring in the course of his duty, the Defendant knew or ought to have known that the Plaintiff was vulnerable to a risk of psychiatric injury by further stressors in the course of his employment with the Defendant." 3 Before I turn to the submissions of the parties I must say, I find this a difficult issue to resolve and do justice between the parties. By the very nature of their job, Police Officers will be and have been subject to a number of traumatic events and stressful situations throughout their years of Police service. Sometimes Police Officers suffer serious psychiatric injuries as a result. In order to establish the reasonable foreseeability of psychiatric injury, the Police Officer must plead that their employer became aware or ought to have become aware of the risk of psychiatric injury to him or her. 4 In Koehler v Cerebos (Australia) Limited [2005] 214 ALR 355 at [33] to [35] the High Court in a joint judgment on the topic of foreseeability of a psychiatric injury stated: "[33] In Tame v New South Wales; Annetts v Australian Stations Pty Ltd, 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 employee and signs given by the employee concerned." (Footnotes omitted) 5 However, Police Officers who particularise certain traumatic events experienced in their past are invariability met with an application by the defendant that these incidents cannot be pleaded as they are statute barred. If this proposition is correct then it follows that the Police Officer cannot plead that he or she suffered stressful and traumatic events in the course of his or her duty and his or her employer knew or ought to have known that the Police Officer was vulnerable to the risk of psychiatric injury by further stressors. That means at trial the Police Officers case is doomed to fail as the pleading falls foul of Koehler. It is the culmination of exposure to traumatic events which makes the Police Officer more susceptible of suffering psychiatric harm. Given the past exposure to past traumatic events, when another incident occurs that may seem trivial, if can have the cumulative effect of worsening the Police Officer's psychiatric state such that it takes him or her out of the Police Force permanently. 6 For Police Officers Gould and Reeves it was the way in which they allege they were treated by their employer during the Wood Royal Commission in 1995 that led took then out of the Police Force. 7 The defendant submitted that this paragraph should be struck out pursuant to Rule 14.20 of the Uniform Civil Procedure Rules 2005. The defendant submitted that the pleading in the ASC [20A] was an attempt by the plaintiff to lead evidence of incidents for which Justice Hidden had found that the defendant was actually prejudiced. 8 Justice Hidden in Gould v NSW [2005] NSWSC 1121 at [17] (the earlier Gould decision) stated: "I should record that the defendant mounted a substantial case that it would be prejudiced by an extension of the limitation period in respect of these incidents because of the death of material witnesses and the unavailability of relevant records, but that is not a matter which I need to determine. An extension of time to pursue this aspect of the claim must be refused because the plaintiff has not demonstrated a viable cause of action arising from the incidents." 9 While Justice Hidden did not decide that the defendant was prejudiced, the defendant submitted that it would suffer actual prejudice if the plaintiff can now plead the traumatic incidents in that way that it seeks now to do. In the statement of claim these eight incidents were pleaded as causes of action. Justice Hidden held that they were not viable causes of action. According to the defendant in State of New South Wales v Heins [2005] NSWCA 258 the Court of Appeal granted leave to the plaintiff on the basis that the pleading would not allow evidence to be called relating to critical incidents prior to the date for which the defendant would be prejudiced. 10 The defendant also submitted that it cannot defend these earlier allegations and the consequences of that are that any causes of action that rely upon a material fact which the defendant cannot defend, means the defendant is irremediably prejudiced. The defendant says that a fair trial is not possible and that paragraph [20A] should be struck out. 11 In Heins at [10], [12], [14], [15] and [19] the Court of Appeal (per Handley JA) stated: "With respect the defendant's claims of prejudice based on events prior to 1 January 1996 could not be disposed of in this way. Counsel for the plaintiff made it clear that evidence would be led of the plaintiff's exposure to stressful incidents between 1986 and 1994 over a period between 9 and 17 years before the statement of claim was filed. This would be done in order to prove that there was no proper system then in place to protect the mental health of persons like the plaintiff, to show that the defendant knew or should have known that the plaintiff worked under these conditions, knew or should have known of his mental state, and should have foreseen that he was vulnerable.

The Judge's statement that the defendant knew or should have known of the plaintiff's mental state before 1 January 1996 raises particular difficulties. If this of any significance at all it must mean that by that time the wear and tear of police service affected the plaintiff so as to make him vulnerable to further stress, at least in the absence of proper arrangements to safeguard his mental health, and that this was or should have been apparent to his superiors. 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. The statement of claim as amended would be prejudicial and embarrassing even if the plaintiff did not need an extension of the limitation period…

… A draft further amended statement of claim was lodged on 12 April. It limits the plaintiff's case of negligence to acts and omissions on and after 1 January 1996 and would not allow evidence to be called relating to critical incidents or stressful events prior to the date. It is therefore a considerable improvement on its predecessor." 12 The plaintiff submitted that paragraph [20A] pleads pre-existing vulnerability to psychological injury. The plaintiff submitted that this is an argument which had been run by the Crown Solicitors Office in two previous matters - Priest v State of New South Wales [2006] NSWSC 12 and Glarvey v State of New South Wales [2006] NSWSC 816. Both of those cases involved former police officers who are alleging psychological injury during the course of their employment of the New South Wales Police Service. 13 In Priest the plaintiff was a former police officer who had made a claim in negligence and breach of contract against the State of New South Wales (on behalf of the Police Service). The defendant in Priest sought to strike out an amended statement of claim on similar grounds as are alleged in these proceedings. The defendant objected to the inclusion of material in the pleadings to support the claim for a pre-existing vulnerability to a psychiatric injury. 14 In Priest Justice Johnson in relation to the matters concerning the pre-existing vulnerability of the plaintiff held that the plaintiff had failed to include a pleading that the defendant knew or ought to have know of the alleged vulnerability and struck out that one paragraph but granted leave to replead it so that it included the relevant wording. In all other respect, except for a breach of statutory duty claim which was withdrawn by the plaintiff prior to the hearing, the amended statement of claim was permitted to stand. 15 At [2] to [36] Justice Johnson set out the relevant principles in relation to pleadings. His Honour determined relevant to these proceedings that firstly, the inclusion of material which forms the basis for an allegation of pre-existing vulnerability to psychiatric injury was permissible. The approach in Priest was adopted by me in Glarvey. The reasoning in Priest and Glarvey are applicable here and while I do not reproduce the Glarvey decision here, I rely upon its reasoning. 16 At paragraphs [12] and [14] of the ASC it is pleaded: "12. The Plaintiff claims that from 1970 the Defendant, by its servants or agents, breached the duty of care it owed to the Plaintiff .

14. As a result of the Defendant's negligence, actions and omissions, the Plaintiff suffered injury, loss and damage, has lost salary and wages he otherwise could and would have earned and has been rendered liable to pay medical expenses and other outgoings." 17 Thus, it appears that the breach of duty of care could have occurred as far back as 1970. This differs from the pleading in Glarvey and Reeves. The plaintiff submitted that this pleading in [20A] does not plead causes of action beyond the limitation period as extended by Hidden J. I disagree. 18 This pleading does attempt to trammel over the findings of Justice Hidden. The current pleading [20A] does offend Rule 14.20 and should be struck out. Costs are reserved.

(1) Paragraph [20A] of the amended statement of claim should be struck out.

(2) The plaintiff is to forward a draft second amended statement of claim to the defendant by 14 September 2006.

(3) The amended notice of motion dated 16 August 2006 is stood over to the Registrar's list on 28 September 2006 at 9.00am.

(4) Costs are reserved. **********

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