Jones v State of New South Wales

Judgment

1. Mr Jones seeks an extension of time, nunc pro tunc, to bring these proceedings, which were commenced by Statement of Claim filed on 9 September 2015, against the defendant, the State of New South Wales, pursuant to s 60G(2) of the Limitation Act 1969 (NSW). The substantive matter for which he seeks leave to proceed is a claim for damages for psychiatric injury arising out of Mr Jones's service with the NSW Police Force involving exposure to traumatic incidents as a police officer engaged in general duties mainly in regional NSW. Mr Jones claims that the NSW Police Force was negligent in failing to institute and maintain a safe system of work to avoid the unnecessary risk of psychiatric injury. Background
2. Mr Jones joined the NSW Police Force as a trainee police officer on 18 May 1987 and was appointed a probationary constable on 7 August 1987. On 7 August 1988 he was confirmed in the rank of constable. He was initially assigned to Windsor Police Station but was transferred to Walgett Police Station in August 1988 where he worked before being transferred to Tamworth on 1 April 1991. He remained stationed at Tamworth until he was medically discharged in 2002 for reasons unrelated to his claimed psychiatric injury.
3. In 1995 Mr Jones injured his right arm whilst on duty and undertook light duties while recovering from his injuries. Mr Jones suffered an aggravation to that injury on 24 January 1999. On 14 February 2000 Mr Jones suffered a further aggravation of his right arm injury while making an arrest on duty. Mr Jones gave evidence that due to his arm injury, his mental health at the time and as a result of his counselling about his work performance by Chief Inspector Myatt in January 2000 he decided to seek a medical discharge from the Police Force (53.50T). Mr Jones's last day at the Tamworth Police Station or anywhere on actual police service was 14 February 2000. He applied for medical discharge on the basis of his hurt on duty arm injury under the terms of the Police Regulation (Superannuation) Act 1906 (NSW) on 1 March 2000. His application was granted on 8 February 2002.
4. On 20 January 2000 Mr Jones had been summoned by Chief Inspector Robert Myatt, his superior officer, and counselled about his complaint history. Mr Jones claimed that Chief Inspector Myatt told him to stop arresting drug dealers as it was detrimental to the reputation of the Tamworth Police Station. Mr Jones gave evidence that he replied that he would not back down and was threatened by Chief Inspector Myatt with being discharged from the service if he received further complaints (52.46T).
5. Although he was medically retired from the force for his arm injury, Mr Jones's position is that his psychiatric symptoms (he had no diagnosis then) and the threat of what he regarded as unreasonable disciplinary action equally contributed to his decision to seek retirement. The pleaded case
6. In his original Statement of Claim Mr Jones relies upon the nature and conditions of his service as a general duties police officer between 18 May 1987 and 8 February 2002. He particularises nine events or circumstances which he relies upon as "traumatic incidents". The incidents are pleaded as follows: 1. In 1987, the plaintiff was on duty in a police vehicle when he and his partner gave chase to an offender who had been stopped in Windsor. In the course of attempting to arrest the offender the plaintiff's partner's service revolver was removed from its holster and came under the control of the offender. The plaintiff was required to draw his own service revolver however the offender was overpowered. 2. In 1987, the plaintiff attended a two vehicle motor accident in which a young mother was killed outside her home. It was the plaintiff's duty to inform the deceased's woman's children of their mother's death. 3. In 1989, the plaintiff's girlfriend's home was the subject of an attempted break-in by a person who had a history of committing offences including setting fire to houses with two police officers inside. 4. On or about 29 December 1990, the plaintiff was involved in the arrest of an Aboriginal person when [he and his colleague] were confronted by 300 to 400 Aboriginal persons who protested the police action. The plaintiff and his partner arrested the offender and were in the process of putting him in the back of the police vehicle when the offender assaulted the plaintiff's partner. The plaintiff was then approached by another person with a machete before the plaintiff was surrounded by another 50 persons who took turns in endeavouring to overpower the plaintiff. The plaintiff was required, in order to extract himself from the situation, to pull his revolver and fire a number of shots [in the air as a warning]. 5. In 1991, the plaintiff was the subject of an assault at an RSL Club at Walgett while off duty and having dinner. This was a result of the assailant knowing the plaintiff was a police constable. 6. In 1996, another police officer who was a good friend of the plaintiff committed suicide and also murdered his wife as a result of investigations which were being undertaken. 7. In 1998, the plaintiff intervened in a female person being assaulted. During the course of intervening, the plaintiff was attacked by a number of members of a bikie gang who assaulted him on numerous occasions. 8. During the course of the plaintiff's duties at Walgett, he was frequently assaulted by local residents. It is pleaded that as a result of those traumatic incidents, the plaintiff suffered a psychological or psychiatric condition.
7. I regret to say that the original Statement of Claim is not a model of the pleader's art. There is a proposed Amended Statement of Claim drafted but not filed. The defendant does not consent to the amendments. The proposed amendments seek to amplify the number of "traumatic incidents" and formalise the pleading of particulars of negligence which are greatly extended in number. From the original Statement of Claim it is tolerably clear that the particulars of negligence involve failure to: provide adequate training on addressing service related stress and anxiety; provide debriefing or counselling following major traumatic incidents; rotate employment into "non-traumatic environments" regularly; provide periodic psychiatric evaluation; comply with the Jan Westerink Report of 1990; implement the recommendations of Task Force Alpha Report; implement the recommendations of Sergeant Delaforce and John Raue in relation to police stress; and comply with the steps set out in the Police Commissioner's Instruction Manual.
8. Although the plaintiff does not have leave to rely upon the proposed Amended Statement of Claim, and the defendant has not consented to it being filed, it is appropriate to refer to it for the purpose of determination of the application to extend time to bring the proceedings. I say this because it encapsulates the case which the plaintiff will seek to make and it would be artificial to ignore it for the purpose of this application. In general terms, the document: avers that the defendant was the plaintiff's employer while he was a member of the police force; that the plaintiff was a contributor to the superannuation fund established under the Police Regulation (Superannuation) Act; invokes the provisions of the Law Reform (Vicarious Liability) Act 1993 (NSW); invokes the provisions of s 8 of the Police Act 1990 (NSW) vesting the management and control of the police force in the Commissioner subject to the direction of the Police Minister; invokes the provisions of s 201 of the Police Act making it an offence for a police officer to refuse to obey a lawful order; and invokes the provisions of s 134 of the Occupational Health & Safety Act 2000 (NSW), now repealed, extending the provisions of that Act to police officers. It will be unnecessary for the purpose of this application to delve into the substance of these legal matters as it is accepted at least for present purposes that the State owes police officers a duty of care akin to that owed by an employer to an employee.
9. Additional details are pleaded about the plaintiff's training or the alleged shortcomings of it, the plaintiff's ignorance of the risk of psychiatric injury to which he was exposed in the course of his duties, the failure of the defendant to provide any debriefing, counselling, treatment, assistance or education to prevent or reduce the risk of injury, the fact that the plaintiff suffered a psychological injury (on a date unspecified), and other facts relevant to the reasonable foresight of a tortfeasor in the position of the defendant of the risk of the plaintiff suffering a psychiatric injury and the precautions available to guard against that risk.
10. The traumatic incidents are increased from eight in number to twenty six extending between 1987 and 1999. The additional allegations are as follows: ix) In 1987 the plaintiff, who was then aged 19, had to attend upon the family home on his own where he informed a man of the death of his wife in a motor vehicle accident. The plaintiff had to try and placate the distress man who ran to the scene and attempted to pry the number plate from the burning car. x) In 1987 the plaintiff attended the scene of a deceased person being a child who died of sudden infant death syndrome. xi) In 1987 the plaintiff attended an area of farmland where a young man was armed with a centrefire rifle. The plaintiff had to face the offender on an open field without cover where he was approximately 20 metres from the offender. xii) In 1988 the plaintiff who lived in a house with another police officer, Constable Dobell, there were also two dogs at the premises. The plaintiff returned home to find the dogs were removed from the yard and their throats had been cut. It was the plaintiff's belief that this was a death threat. xiii) On 29 December 1989 whilst attempting to arrest a violent Aboriginal offender a large crowd of Aboriginal persons gathered. The situation deteriorated into a riot which required the plaintiff to fire a warning shot, the plaintiff feeling his life was in danger. xiv) On 30 December 1989 the plaintiff was left alone on duty at Walgett Police Station where he feared the station could be attacked following the earlier riots. xv) In 1992 the plaintiff was required to attend at the scene of an accidental death where the deceased has passed away several days before. The plaintiff became violently ill during the post-mortem due to the aroma however had to complete his shift notwithstanding the aroma from his uniform. xvi) In 1994 the plaintiff attended upon an address where a known offender was seen to enter. The plaintiff was ordered to storm the house without protective equipment. xvii) In September 1996 the plaintiff attended upon a young person who had died unexpectedly and was also required to assist in the post-mortem. xviii) In September 1996 the plaintiff attended at the scene of a fatal motor accident where two young girls had died, one had been partially decapitated. The plaintiff endeavoured to resuscitate the second girl but she also passed away. xix) In 1996 Detective Wayne Johnson murdered his wife then committed suicide. The plaintiff was aware of this occurring as part of his duties. xx) In 1997 the plaintiff attended at the scene of a deceased 13 year old girl who had committed suicide by hanging herself. He was required to cut down the body to spare the child's mother seeing her child. xxi) In 1998 the plaintiff intervened where a member of a motorcycle gang was assaulting a woman. When the offender fled the plaintiff was assaulted by other members of the motorcycle gang. xxii) In 1998 the plaintiff attended an address in Armidale Road, Tamworth where a male Aboriginal offender held a knife on a child hostage. xxiii) In 1998 the plaintiff was assaulted with a syringe by an offender known to be infected with Hepatitis C. xxiv) In 1999 the plaintiff attended upon a domestic violence incident where a female de factor was shot in the head. The plaintiff had to administer first aid but the victim was deceased. xxv) In 1999 the plaintiff had to attend a home of an offender who was believed to be armed. The plaintiff feared for his life and was exposed to be shot by the offender. xxvi) In 1999 the plaintiff was threatened by an armed offender who produced a knife and aimed it at the plaintiff's ribs. The plaintiff drew his pistol, the offender withdrew only to return shortly thereafter and appeared to have a firearm which was being pointed at the plaintiff.
11. The relevant precautions are extended from nine to thirty four and the additional matters are as follows: x) To take steps to determine the risk of psychological/psychiatric injury to the plaintiff as a result of exposure to traumatic incidents referred to in this statement of claim. xi) To devise institute or maintain a safe system of work which would prevent and/or reduce the risk of psychological/psychiatric injury as a result of exposure to incidents referred to in this statement of claim. xii) To exercise supervision over the plaintiff which would have facilitated detection of the risk of psychological/psychiatric injury and thereafter implemented an effective remedial action for such an injury. xiii) To provide the plaintiff with advice and/or education and/or training in relation to the ability for him to recognise that he may have suffered a psychological or psychiatric injury and/or disability as a result of exposure to his police work. xiv) To ensure that members of the Police Service including the plaintiff were trained in relation to the signs, symptoms and effect of post-traumatic stress disorder to ensure that there was no stigma attached to the reporting of incidents when persons including the plaintiff believed they may have suffered a psychological/psychiatric injury. xv) To ensure that peer group support officers were available for the use of the plaintiff following his exposure to traumatic incidents. xvi) Requiring the plaintiff to work in an excessively stressful environment in that he was exposed to the incidents referred to above without being provided with ongoing treatment and/or education in relation to the risk of suffering a psychological/psychiatric injury. xvii) To provide the plaintiff with adequate debriefing mechanisms for dealing with and/or addressing psychological/psychiatric injury during the period of his service with the Police Service. xviii) To conduct regular or annual medical checkups upon the plaintiff to ensure he was not suffering from a psychiatric or psychological injury during the entirety of his service with the Police Service. xix) To take any action to ascertain whether or not the plaintiff had suffered a psychiatric/psychological injury by conducting testing and/or evaluation of the plaintiff's psychiatric/psychological condition. xx) To monitor the work of the plaintiff to facilitate the identification of potential adverse effects on the plaintiff's psychological wellbeing caused by the incidents referred to above. xxi) To devise, institute and maintain a system of job rotation in order to cause the plaintiff to be moved from an area of police service that would not expose him to traumatic incidents including serious injury, death or shootings. xxii) To provide the plaintiff with any or any adequate counselling, debriefing or other system of emotional support in sufficient time and/or at all to avoid or minimise the risk of injury after exposure to incidents referred to above. xxiii) To follow and/or implement the recommendations contained within the Commissioner's Instruction Manual being the need to ensure that persons including the plaintiff who had been exposed to traumatic incidents were properly counselled and/or debriefed during the course of the plaintiff's service with the Police Service. xxiv) To ensure that the plaintiff was aware and/or the plaintiff's supervisors were aware of Instruction 12 contained within the Commissioner's Instruction Manual during the entire period and/or during any part of the period of the plaintiff's service with the Police Service. xxv) To provide training for the plaintiff before he entered the Police Service providing him with information as to what treatment and/or assistance he should seek in the event of suffering anxiety, stress or psychological injury during his police service. xxvi) To provide the plaintiff with education and training in order to ensure that he was aware of the contents of the Police Commissioner's Instruction Manual relating to the availability of welfare and psychological services. xxvii) To ensure that there was no criticism by senior members of the Police Service in relation to seeking assistance in relation to psychological/psychiatric and/or welfare units. xxviii) To implement psychological testing including screening instruments such as post-traumatic systems checklist or Beck Depression Inventory and/or K10. xxix) To conduct interviews with the plaintiff after conducting psychometric testing. xxx) To identify the plaintiff's duties fell within a group of duties within the Police Service that was of a high risk of developing psychological/psychiatric injury disorder and thereafter instigating rapid treatment to the plaintiff. xxxi) To provide any training or instruction concerning working in country areas having regard to the limited resources by way of other police officers within those areas and therefore the potential risk of psychological injury. xxxii) To implement and/or follow the advice of police psychologist, Jan Westerlink, in her recommendations issued in 1990 that the Police Service did not provide training to the plaintiff sufficient to allow him to recognise the psychological injury and/or disability which he could suffer. xxxiii) To provide training and/or treatment to the plaintiff when he showed signs and/or expressed concern about his psychological condition to other members of the Police Service. Particulars a) In or about September 1990 the plaintiff spoke to the officer in charge of the Walgett District, Chief Inspector Tony Han, requesting a transfer to Tamworth where he expressed the words: "I am falling apart and I am scared I am going to kill someone. There are too many assaults by Aboriginals. I need to go somewhere where there are no Aboriginals" b) In February 1991 the plaintiff spoke to Chief Inspector Han and said: "I've got to get out of here I am falling apart". c) In March 1991 the plaintiff spoke to Inspector Middleton at Tamworth Police station: "Since that incident (in Walgett on 29 December 1989) I have a problem working with Aboriginals. d) In or about 1991 the plaintiff spoke to Senior Sergeant Robert Partech, Station Controller at Tamworth telling him about the incident at Walgett and the aversion the plaintiff had to working with certain persons. e) In 1998 the plaintiff spoke to Officer Richard Bassett and informed him of his anxiety. xxxiv) To follow the recommendations of Sergeant Delaforce and/or other members of the Police Psychology Unit in relation to the need to treat, monitor and test police officers including the plaintiff for the potential risk that they may suffer stress and/or a psychological/psychiatric injury.
12. The causes of action are specified as negligence and breach of contract and the particulars are the same in respect of each. I will not set them out as they mirror the precautions the plaintiff pleads were available to the defendant to guard against the risk of him suffering psychiatric injury in the execution of his duties as a police officer.
13. It's difficult to say whether the additional traumatic incidents pleaded in the proposed Amended Statement of Claim will make any real difference to the plaintiff's case, especially as it was made clear in evidence that the incident at Walgett in late 1990 remains, what the plaintiff regards as his psychological "ground zero" (59.19T). Likewise the more detailed pleading of precautions and particulars of negligence and breach of contract really do no more than amplify and particularise what was already in substance pleaded in the original Statement of Claim.
14. The plaintiff has served and relies upon the expert opinion of Professor Alexander McFarlane, Psychiatrist dated 5 October 2016 (Exhibit B). Professor McFarlane expressed the following opinion (p. 28): "Mr Jones, at the time of his medical discharge suffered from a psychological injury as a consequence of his police service, although this was not diagnosed at that time. In the course of his duties, he had been exposed to multiple events of a highly traumatic nature that were a substantial cause of his chronic PTSD". Professor McFarlane seems to date the development of a clinically significant condition to the Walgett incident in 1990. As I pointed out above (at [13]), Mr Jones in evidence described that incident as his "ground zero". Professor McFarlane regards Mr Jones's police service as the substantial cause of his condition and was unable to identify any other "substantial vulnerability or contributing factors" (Exhibit B p. 32).
15. Professor McFarlane expresses the view that the New South Wales Police Force ought to have known during the latter part of the 1980's the relationship between traumatic police work and psychological trauma to officers. In particular, the Westerink Report of 17 May 1990 encapsulated the knowledge that was then available (Exhibit B p. 35).
16. From the mid 1980's "the more specific risks to emergency service personnel were better understood and programs were beginning to be put in place" to eliminate or reduce the risk of injury (Exhibit B p. 35). It is Professor McFarlane's opinion that in accordance with the Westerink Report, Mr Jones should have been assessed after the 1990 traumatic incident in Walgett and should have been referred for psychological or psychiatric treatment (Exhibit B p. 37). Prompt treatment would have significantly lessened his distress and reactivity and he should have been removed from front line policing until his response was settled (Exhibit B p. 37).
17. Professor McFarlane states that "debriefing as an intervention itself does not prevent post-traumatic stress disorder" (Exhibit B p. 37).
18. Professor McFarlane is of the opinion that the Task Force Alpha Report is of particular relevance to Mr Jones's case (Exhibit B p.38). It sets out a number of interventions and procedures including psycho-education programs, presumably to promote psychological resilience. Professor McFarlane stated that Mr Jones should have been monitored and followed up, following the Walgett incident. He should have been referred for treatment and rotated out of front line policing duties until his condition stabilised. Mr Jones's evidence
19. Mr Jones gave evidence by affidavit and was cross examined. He said in the course of his employment with the NSW Police Force he was exposed to a number of traumatic incidents. He laid emphasis on his term of duty in Walgett where he became distressed by his interactions with the Aboriginal community in the area. He said that on 29 December 1990 whilst assisting other police officers with an arrest he was cornered by between 50 to 100 Aboriginals in an alleyway who were yelling "Kill the pig" continuously at him (Affidavit, Andrew Graham Jones, 17 December 2015 at [31]). Mr Jones described how the group took turns at running at him and knocking him over He attempted to use his baton to hit them away (Affidavit, Andrew Graham Jones, 17 December 2015 at [32]). He feared for his life and drew his revolver firing it over the group as a warning shot which caused the group to disperse (Affidavit, Andrew Graham Jones, 17 December 2015 at [33]). He was left to man the station alone that evening and recalled that he feared a retaliatory attack would be made on the police station (Affidavit, Andrew Graham Jones, 17 December 2015 at [39]). In evidence Mr Jones described this event as his "ground zero" and he identified that this was where his feelings of anxiety and fear started (59.19T). Other traumatic incidents which Mr Jones detailed included attending to scenes of suicide or violent armed offenders and being attacked whilst off duty.
20. The occasion of several of these incidents caused Mr Jones to intermittently sleep with a loaded shotgun under his bed during the late 1990s (49.35 - 50.37T). Those experiences also caused Mr Jones to suffer from physical manifestations of stress and anxiety. From 1998 his hands would shake daily before he went to work (41.9 - .11T). As outlined Mr Jones gave evidence that these feelings of distress were contributing factors to him seeking a medical discharge (53.50 - 54.5T). However, Mr Jones did not use his deteriorating mental health as grounds in his application for medical discharge out of concern that if his medical discharge wasn't accepted that he would be fired for being mentally unstable (Affidavit, Andrew Graham Jones, 17 December 2015 at [115]).
21. Mr Jones gave evidence that he thought that upon being discharged from the Police Force in February 2002 his feelings of fear and stress would disappear but that he remained "anxious and very vigilant" (Affidavit, Andrew Graham Jones, 17 December 2015 at [121]). Despite his mental state Mr Jones said that he had been able to manage daily life and that it wasn't until 2011 that his psychological symptoms became unbearable. At that time he had six sessions with psychologist Susan Dempster who referred him onto psychologist Ian Firth for further treatment. Mr Firth diagnosed Mr Jones with Post Traumatic Stress Disorder (PTSD) arising out of the incidents to which Mr Jones had been exposed in his service with the Police Force (Affidavit, Andrew Graham Jones, 17 December 2015 at [123]). Mr Jones did not continue to see Mr Firth as the latter was moving to a different practice and Mr Jones subsequently went travelling (Affidavit, Andrew Graham Jones, 17 December 2015 at [124]). It was not until 2014 when his mental state further deteriorated and he began to have suicidal thoughts that Mr Jones sought psychological help again (Affidavit, Andrew Graham Jones, 17 December 2015 at [125]). On 7 February 2014 Mr Jones saw his GP who referred him to a psychologist. Mr Frank Bergmann confirmed the previous diagnosis of PTSD. Mr Jones later saw psychologist Nicole Fraine and received treatment from psychiatrist Dr Dhushan Illesinghe who also confirmed the diagnosis of PTSD (Affidavit, Andrew Graham Jones, 17 December 2015 at [126], [128]). Cross examination
22. Mr Jones's last day of service was 14 February 2000. On that day he and a colleague had to attend a domestic disturbance and while arresting an offender he re-aggravated his right arm injury. He regarded that aggravation as serious (51.38T). At that time he weighed up the prospect of further shoulder rehabilitation and his concern that he may be "sacked" because of the unsatisfactory interview with Chief Inspector Myatt. He made a choice to leave because of his shoulder rather than taking the risk of being forced out of the service (51.50 - 52.8T).
23. At the completion of his shift on 14 February he said to his supervisor, "I'm going home and I won't be returning at any point" (54.24T). He decided to apply for a medical discharge on the basis of a shoulder injury. He didn't mention his concerns about Chief Inspector Myatt's attitude nor did he mention his stress symptoms. He said he didn't mention stress for the following reason: "Because on one level there was a stigma that went with having any sort of mental injury, so there was the shame factor of that. On the other level if for whatever reason they didn't accept that my right shoulder injury was sufficient for me to leave on then I was back to square one, now I've outed myself for having some sort of mental issues, they would quite likely terminate my employment based on that so why expose yourself to that risk" (55.5T). He said not mentioning stress related symptoms, but relying upon the arm "was the most logical way to leave the NSW Police at that time" (55.14T).
24. His medical retirement took effect on 8 February 2002, but his symptoms did not go away immediately. In his words, "They dissipated" (57.31). I take this to mean they settled somewhat.
25. As I have already indicated, Mr Jones regarded the Walgett incident "as my ground zero … the one big event which everything else … keeps coming back to" (59.19T). He regarded it as the event from which he never recovered (59.15 - .25T). He confirmed that he had six sessions of counselling or other psychological treatment from Susan Dempster in 2011 who referred him to Ian Firth. Mr Firth told him he suffered from post-traumatic stress disorder related to his work as a police officer (59.48 - 60.2T).
26. Although he was aware that there were peer support officers that police officers could speak to about difficulties with the work, I infer including occupational stress, he was unaware of the availability of police psychologists who could provide treatment for officers who were suffering from occupational stress. He said he was completely ignorant of that service (63.25 - 64.20T).
27. He gave the following evidence about his condition and his understanding of it and the origin of it at (65 - 66.27T): "Q. And you knew in the years after you ceased service with the NSW Police Force in February 2002 in the years that followed February 2002 that you were still affected by the work you'd done as a police officer? A. Yes. Q. But you still had what you would describe as mental health problems because of your work as a police officer? A. I believe I had symptoms, did I know they were mental health problems or they were indicative of a mental health problem, I just wasn't sure. It wasn't ‑ it wasn't until later on when things you know accumulated, the effect of everything I'd been through had accumulated to the point where it was really affecting my personal life that I actually sought to do something about it. Q. And it began to affect your personal life to such an extent that you understood the baggage you were carrying around with you from your service as a police officer was having an adverse effect on your ability to maintain relationships in your life? A. Yes correct. Q. And it caused you such concern you went to your general practitioner and sought that person's help? A. Yes. Q. To find a solution to the problem? A. Yes sir. Q. And by that stage you'd had the problem in your life for years? A. Yes sir. Q. Many, many years? A. Yes sir. Q. To be perfectly frank about it ever since that ground zero event in December of 1990? A. Yes sir. Q. And when you went to see Susan Dempster you arrived at a medical explanation, she gave it to you, for what you were experiencing? A. Yes. Q. And she connected that explanation to your work as a police officer didn't she? A. Yes. Yes. Q. And she told you that because you'd been a police officer and exposed to these traumatic events for many, many years, it had caused you harm? A. Yes. Q. And when you went to see Mr Firth he confirmed all of those things didn't he? A. Yes sir. Q. And he put a label on it of post‑traumatic stress disorder? A. Yes sir. Q. Now, when you were told by Mr Firth that you had PTSD was that the first time you'd ever heard that phrase or term? A. No I don't think so, I think ‑ I don't recall the first time I heard it but I know that it became more widely used and heard of in public. Yes. Q. Ms Dempster spoke of in her medical explanation did she speak of PTSD? A. I don't recall. She definitely introduced me to the concept of anxiety. Q. Right. And anxiety related to traumatic, to exposure to traumatic events? A. Yes. Yes sir. Q. Your experience of life in December 1990 was that your life had been threatened? A. Yes. Q. And you expected on that day in late December 1990 that you would perish? A. Yes. Q. And you now say do you not that you recognise that you were suffering anxiety from that point forward and ever after? A. Yes." Legal advice
28. In 1996 Mr Jones retained Taylor & Scott in relation to a lump sum compensation claim for his right arm injury. He sought legal advice from them again in 2001 to assist him with his application for medical discharge. They continued to act for Mr Jones after his discharge on occasion when he sought an increase in the rate at which his pension was paid. He did not discuss any possible rights he may have relating to his mental trauma: "they didn't ask, I didn't tell" (79.5T). Mr Jones became aware in 2013 that a former colleague was claiming damages for psychiatric injury as a result of his time on the NSW Police Force and considered that he might have similar rights to damages. On 4 March 2015 Mr Jones met with Mr Denis Fitzpatrick to receive advice in relation to his claim (Affidavit, Andrew Graham Jones, 17 December 2015 at [136]). Mr Jones recalled that Mr Fitzpatrick briefed a barrister on his behalf and as a consequence he became aware of the acts or omissions of the Police Force in instituting and maintaining an unsafe system of work to which his condition was connected. As I have said, Mr Jones subsequently commenced proceedings on 9 September 2015 by way of Statement of Claim. Separation of question of limitation period and substantive issues
29. By way of Notice of Motion filed 20 April 2018, Mr Jones sought to have the question relating to the extension of the limitation period decided separately to the substantive issues of the trial. This followed a direction by Johnson J that: "(1) The Plaintiff is to file and serve a Notice of Motion seeking: 1.1 an extension of the limitation period to commence these proceedings; and/or 1.2 a declaration that the limitation period was suspended pursuant to s.52 Limitation Act 1969 (NSW)" Effectively Johnson J held after an interlocutory contest that the question of leave to proceed should be determined in advance of the trial on the merits rather than at the trial, as the plaintiff would have preferred: Jones v State of New South Wales [2017] NSWSC 1601. Legal principles
30. Mr Jones invokes the power of the Court to extend the limitation period for personal injury cases arising, inter alia, from negligence conferred by s 60G(2) of the Limitation Act 1969 (NSW) which is expressed in the following terms: 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. Section 60G is part of Part 3, Division 3, sub-division 3 of the Act, applying in general terms but not literally, to latent injuries.
31. Section 60G(1) provides that it "applies to a cause of action that accrues on or after 1 September 1990," (and before 6 December 2002) "founded on negligence, nuisance or breach of duty, for damages for personal injury". By Sch 5 cl 4 (1) it is afforded retrospective operation to the same causes of action accruing before 1 September 1990. Given Mr Jones's "ground zero" incident occurred in December 1990, and on the evidence before me a diagnosable condition does not arise until then, it is not necessary to consider the effect of that transitional provision which is authoritatively established by Dedousis v The Water Board [1994] 181 CLR 171; [1994] HCA 57.
32. Importantly s 60G is subject to s 60I which is as follows: (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).
33. The subsections of s 60I(1)(a) are concerned with the subjective knowledge, "awareness", of the plaintiff. Section 60I(1)(b) introduces a normative standard for consideration of when the plaintiff ought to have become aware of all those matters to the reckoning of the time within which the application must be brought.
34. In cases of psychiatric injury s 60I(1)(a)(i) is concerned with when the plaintiff knew that he or she suffered from a recognised psychiatric injury: Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209. In the Commonwealth of Australia v Smith [2005] NSWCA 478 Handley JA pointed out at [16] that as "the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by "professional medical opinion". … a plaintiff, … who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury."
35. In Shaw Basten JA cited the unanimous judgment of the High Court of Australia in Harris v Commercial Minerals Ltd (1996) 186 CLR 1; [1996] HCA 49 at 13 and said that the question of whether the plaintiff was unaware of the nature and extent of the injury for the purpose of s 60I(a)(ii) is determined by reference to the plaintiff's expectation as to the likely future course of an injury or disease as at the expiration of the limitation period (at [26]). From this it is clear that a person who is yet to suffer the full consequences of an injury may have an appreciation, say from professional advice received, what the future course of the injury or disease in his or her case is likely to be.
36. Section 60(1)(a)(iii) is focused on the connection between the plaintiff's recognisable injury and their "ignorance of the existence of acts and omissions" to be relied upon as constituting negligence or other relevant causes of action. It is not concerned with legal conclusions. Nor is it concerned merely with questions of causation of the injury or disease: Dedousis at [27]. In Drayton Coal Pty Ltd v Drain [1995] NSWCA 131 (22 August 1995) Gleeson CJ characterised the defendant's acts or omissions as those upon which "the plaintiff relies to found the cause of action referred to in s60G … [appearing] in the plaintiff's particulars of negligence" (p.6). The test is a factual one and is not concerned with whether the applicant is aware of the legal significance of the facts: State of New South Wales v Judd [2003] NSWCA 355 at [28].
37. Mr Andrews drew my attention to the following passage in Dedousis at p.181: "if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then the proper conclusion is the plaintiff was "unaware of the connection between the personal injury and the defendant's acts or omissions" within the meaning of s 60I(1)(a)(iii) [when the limitation period expired]".
38. Section 60I(1)(b) provides that the Court must be satisfied that the application to extend time was brought within three years of the date when the plaintiff became aware or ought to have become of the matters listed in subpar (a). In considering whether the plaintiff ought to have become aware the test is one involving the normative standard of a reasonable person in the plaintiff's position, that is to say, unlike the matters the subject of s 60I(1)(a), the test is not wholly subjective. The question involves what steps it was reasonable for the plaintiff to take to find out each of the three matters in s 60I(1)(a) and when: Shaw at [31].
39. The commencement of an action outside the limitation period is prima facie prejudicial to a defendant: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 544. In this context, Mr Hutchings drew my attention to the decision of Jones v Royal Hospital for Women [1998] NSWSC 119 (24 July 1998) in which Mason P summarises the relevant principles relating to the exercise of the discretion under s 60G. His Honour expressed the principles in the following terms (at p.5): "(1) The satisfaction of the preconditions to an exercise of discretion under s60G do not give rise to a presumptive right to the exercise of discretion in favour of the applicant - see Commonwealth of Australia v McLean (Court of Appeal, unreported, 28 July 1997, earlier decision in same appeal reported at (1997) 41 NSWLR 389). Rather, the applicant has the positive burden of demonstrating that it would be just and reasonable for an extension of time to be granted in the circumstances of the particular case - see Taylor at 544, 547, 554, 567. (2) The viability of the proposed claim is relevant - George v Estate of Bailey & Ors (1998) Aust Torts Rep ¶81-455 at p 64, 649-p64, 650 (and cases cited). (3) Although the ultimate onus of satisfying the court clearly rests upon the applicant, there is still an evidentiary onus on the opponent to "raise any consideration telling against the exercise of the discretion" - Taylor at 547, 566-7. As explained by Kirby J (at 566-7): "If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it .... " See also Zegarac at 197. (4) It is not appropriate to balance the prejudice to each of the parties - Taylor at 549-550; McLean at 3. (5) The proper question to ask is whether "the delay has made the chances of a fair trial unlikely" - Taylor at 550 per Toohey and Gummow JJ; or whether the commencement of an action beyond the limitation period would result in prejudice of a significant kind to the prospective defendant - Taylor at 544 per Dawson J, 555 per McHugh J. Cf Zegarac at 198-9. (6) The court is required to have regard to "every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period" (per McHugh J in Taylor at 554) including the rationales for the existence of limitation periods - Taylor, per McHugh J at 551-553 and Kirby J at 563-564. Accordingly, evidence of presumptive and actual prejudice to a prospective defendant will be a most relevant consideration, if not determinative in the vast majority of cases - see Taylor at 548, 555 and George at 64,647-64,648. However, in exceptional cases other considerations may prove decisive, such as inordinate delay on the part of the applicant considering the extent of awareness of relevant issues under s60I as explained by Gleeson CJ (as he then was) in Drayton Coal Pty Ltd v Drain (Court of Appeal, unreported, 22 August 1995)." The references to Zegarac are to Sydney City Council v Zegarac (1998) 43 NSWLR 195.
40. In accordance with Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 at [79] extending the time limitation will only be just and reasonable if the defendant is ensured a fair, not necessarily perfect, trial. Submissions
41. Mr Andrews submitted that Mr Jones was not aware that he had suffered a personal injury until he received the definitive diagnosis of PTSD from the psychiatrist, Dr Illesinghe in 2014. Nor could he be aware of the nature and extent of his injury until he experienced a further deterioration of his condition in 2014 which lead him to consult his general practitioner, prior to being referred for treatment, notwithstanding his difficulties in 2011. They were not sufficient to stop him leading his normal life. Mr Jones was not aware of the connection between his injury and the defendant's acts or omissions until he saw his solicitor Mr Fitzpatrick on 4 March 2015. Until then he could not be aware of any of the matters relevant to the safe system of work including Instruction 12 of the Police Commissioner's Manual, the Task Force Alpha Report, the Westerink Report or the Sergeant Delaforce Recommendations that demonstrate the shortcomings of the Police Force's system and the availability of an alternative system of work. Mr Andrews also argued that Mr Jones was unaware of the limitation period relevant to his claim until he received legal advice.
42. Given that after his medical discharge Mr Jones's symptoms "dissipated" and did not materially affect the activities of daily life it was not unreasonable for him not to take any steps to receive medical advice or ascertain his rights at least until 2011. Even then there is no suggestion that he did not take the advice given by the psychologists. In reality he had not received a firm diagnosis from a qualified medical professional until he saw Dr Illesinghe. It is not suggested that he had been referred to psychiatrist sooner. It cannot be said that there were other steps he should have taken earlier than he did.
43. Mr Andrews also submitted that the defendant has failed to point to any evidence of actual prejudice. In the circumstances it is just and reasonable to extend time.
44. Mr Hutchings argued that at the very least Mr Jones knew of the nature and extent of his injury by 2011 or 2012 and failed to institute proceedings at this point.
45. Mr Hutchings submitted in relation to s 60I(a)(iii) that Mr Jones knew of his mental health problems whilst he was working in the Police Force as it was one of the reasons for his decision to seek a medical discharge (107.1-9T). And that at least during the "ground zero" incident Mr Jones knew of the failure of management and the relevant measures that could have been put into place to prevent the risk of harm to him. Mr Hutchings further submitted that the connection between this knowledge and his failure to include his mental health problems in his medical discharge or inform his lawyers of his condition suggests he ought to have known of the relevant connection between his mental health problems and the posited failures of the Police Force, in substance, to take measures of the general type relied upon to eliminate the unnecessary risk of psychiatric injury. Mr Hutchings argues that there is nothing to suggest that he was precluded by distress or anxiety from discussing his experience and discovering his potential right to legal action against the Police Force. In fact Mr Hutchings submits that I should have regard to Mr Jones's initial experience of visiting his GP and psychologist in 2011 as support for the proposition that he ought to have known of the relevant connection. Mr Hutchings ultimately submitted that Mr Jones ought to have known of the significance of the problems he was having and in fact did know of the connection between the failings of the management of the organisation and its affect upon him in the 1990s.
46. Mr Hutchings further argued that it was not just and reasonable to extend the time limitation given the length of time that had elapsed between some of the incidents Mr Jones gave evidence about and the current proceedings. He argued that Mr Jones's case concerned the operation of the Police Force and that it would be difficult for the defendant to adduce evidence about what was in the mind of the person with operational control of each of the events complained, some of which took place over 28 years ago. Mr Hutchings submitted that it would be reasonable to expect that witnesses or operational staff would have far less recollection of these events than Mr Jones and those already contacted had only provided general details about the incidents. He argued that the unavailability of Mr Firth's records and the destruction of the records of Taylor and Scott in 2010 are prejudicial to the defendant as these documents could provide details as to Mr Jones's knowledge of his injuries and claim at the relevant time periods.
47. Mr Hutchings submitted on behalf of the defendant that the Task Force Alpha Report on which the plaintiff relies is general in its nature and should be described as a motherhood statement. If accepted it would not establish an alternative system of work which would have eliminated the risk of injury. He further submitted that the other reports and recommendations relied upon to support Mr Jones's application did not establish an alternative available system of work applicable to NSW Police which was capable of obviating the risk of psychiatric injury. Mr Hutchings argued that the availability of the Alpha Task Force Report and other documents did not alter Mr Jones perception of the connection between his injury and his time in the Police Force of which he was always aware. Consideration
48. Although Mr Jones particularises multiple incidents both and after the "ground zero" incident at Walgett in December 1990 the evidence of Professor McFarlane points to that incident as the medical cause of Mr Jones's condition. The previous incidents, in so far as they may be incidents in the course, or arising out, of his police service, (which is not obvious in respect of every one of them) may be seen as matters which may have primed him psychologically. Likewise the subsequent incidents may best be characterised as symptomatic "flare ups" of the condition established by the Walgett incident. Overall the pleading has the feel of a "nature and conditions of employment" type claim with the Walgett incident standing out from the various other employment stressors particularised.
49. In any event because of Sch 5, cl 4 of the Act s 60G is equally applicable to causes of action arising before and after 1 September 1990 and before 6 December 2002. The latest date on which Mr Jones's cause of action could have arisen is his last day of actual duty on 14 February 2000. Accordingly the latest possible date on which the applicable limitation period could have expired is 14 February 2003.
50. Given Handley JA's judgment in Smith, for the purpose of s 60I(1)(a)(i) Mr Jones could not have been aware that he had suffered personal injury by way of a recognisable psychiatric condition until he had been given that diagnosis by a competent person qualified to make it. There may be a question about whether a clinical psychologist is qualified to diagnose a medical condition. Doubtless, in practice they often do so. However, I am rather of the view that medical diagnosis is a matter for legally qualified medical practitioners and in particular, when it comes to psychiatric injury, a specialist psychiatrist. Adopting this approach, I find that Mr Jones did not know that he had suffered personal injury until consulting Dr Illesinghe in 2014.
51. There is no doubt that Mr Jones has been aware of his symptoms for decades well before he last saw actual service as a police officer as opposed to on his retirement on medical grounds in 2002. There is no doubt that those symptoms were at times of some severity including such a level of anxiety that he slept with a loaded shotgun under his bed in the late 1990s. He also gave his symptoms as one of the three reasons that motivated him to apply for a medical discharge, which application he lodged on 1 March 2000. It's also apparent from his evidence that these symptoms remained troubling and indeed debilitating more or less continuously albeit with fluctuation notwithstanding his stated ability to lead a "normal" life. There was a deterioration in 2011 when he sought treatment and again obviously in late 2013 or early 2014 leading him to consult his GP for treatment on 7 February 2014. It could be argued, at the latest, he was aware of the nature and extent of his injury in 2011.
52. However, it would defy logic to hold that he was aware of the nature or extent of the personal injury suffered when he, until he received a diagnosis from Dr Illesinghe, did not know that he had suffered an injury. Again, applying the approach in Smith, I am of the view, for the purpose of s 60(1)(a)(ii) that Mr Jones was unaware of the nature or extent of his personal injury until he received the definitive diagnosis.
53. As the High Court made clear in Dedousis in relation to s 60I(1)(a)(iii), the question is essentially, in the present context, whether the plaintiff has established that he was not aware that there was a safer alternative system available which would have been effective to eliminate the risk of psychological injury. And as I have also said (at [36] above), in Drayton Coal Pty Ltd v Drain Gleeson CJ (as the Chief Justice of Australia then was) equated the relevant acts and omissions, the subject of s 60(I)(1)(a)(iii), with the particulars of negligence relied upon to found the claim. That is to say, although, here, Mr Jones may be taken to be aware of the connection between his symptoms and his police service, that awareness does not mean he cannot satisfy the statutory condition. Although I am satisfied he knew of the peer support officer system and in a general sense put down the traumatic incidents to "failures of police management" he was not aware of the specific acts and omissions that could be relied upon as constituting negligence on the part of the defendant until those matters were explained to him in detail by his solicitor in 2015.
54. It follows from this that I am satisfied that Mr Jones has established the applicability of each of the three conditions in s 60I(1)(a). That is to say, he was not aware of any of those matters at any time before 14 February 2003, the last date on which the limitation period for any cause of action could have expired.
55. I turn then to the s 60I(b) condition. Given my finding about the s 60I(1)(a) matters, the application for extension of time was made within 3 years of the plaintiff becoming aware of all of those three matters. The question really, however, is whether the application is made within 3 years of the time when Mr Jones ought to have become aware of all three matters listed in paragraph (a) (i) - (iii) of s 60I. I am not satisfied that the application has been made within that time. I am of the view that Mr Jones ought to have become aware of each of the s 60I(1)(a) matters at the latest by about February 2005, that is to say within 3 years of the successful completion of his application for a medical discharge. I repeat he was well aware of the severity of what proved to be the symptoms of PTSD by the late 1990s. When he seriously contemplated making an application for medical discharge in February 2000 he knew that his symptoms were such that he could not continue serving as a police officer. I infer this from the consideration that his psychological condition was one of his reasons for wanting a discharge from the Police Force. He had been consulting Taylor and Scott since the mid-1990s, albeit about his orthopaedic injury. Even so they were solicitors to whom he had been referred by the Police Association. It may be taken that they were experienced solicitors in the full range of workers' compensation and common law matters likely to be of concern to police officers hurt on duty whether they suffered a physical or a psychiatric injury. Had he raised the matter they would have looked into it.
56. Giving all credit to his explanation for not raising his suspected psychiatric injury before his medical discharge for his shoulder injury, once his application was successfully there was absolutely no reason why he could not, or should not, have raised the matter with the solicitors he had already consulted and in whom he doubtless had confidence, to seek their advice about his rights and entitlements to compensation and damages for his psychological symptoms. I interpolate that I found his explanation for not raising the matter to be quite unconvincing, but even accepting it for present purposes, it does not explain why he failed to follow the matter up when the fear of the stigma associated with psychological injury could no longer be operative because he was no longer a serving officer.
57. As I have said, there is every reason to suppose that Taylor and Scott were competent solicitors in the field. Had medical investigations been undertaken soon after Mr Jones's discharge in February 2002 doubtless a diagnosis of PTSD would have been forthcoming just as it was in 2011 and just as it was in 2014 when he finally consulted a psychiatrist. And just as it was when Professor McFarlane was asked to consider the matter for the purpose of these proceedings. All of the material relied upon now to prove an alternative system of work and to establish negligence in the failure to adopt it was available then. There was no reason to suppose that Taylor and Scott would not have been aware of it. Claims for damages by police officers in respect of PTSD suffered in the course of their service were certainly well known, at least by experienced practitioners, in the first decade of the current century.
58. All three matters were ascertainable had appropriate forensic diligence been undertaken by Mr Jones himself in his own interests. All that required really given he was already in the hands of competent and experienced solicitors was to raise the matter with them. Had he done so, I am satisfied that he would have become aware of each of the three matters referred in s 60I, as I have said, by February 2005. It should also be borne in mind that Mr Jones gave evidence that he had consulted Taylor and Scott after the completion of his initial medical retirement application to seek an increase in the level of benefits to which he was entitled. I find that had Mr Jones taken these steps which I find were reasonable for him to take he ought to have become aware of the three s 60I(1)(a) matters by February 2005, 10 years before he commenced these proceedings and 12 years before bringing the application at the direction of Johnson J. Moreover, as I have indicated at [56] above, I am not satisfied that Mr Jones's explanation for the delay in bringing proceedings is satisfactory.
59. Lest I am wrong in my conclusion under s 60I(1)(b), it's appropriate that I indicate whether had all of the conditions of s 60I been satisfied, I would not have exercised my discretion under s 60G to extend the time for bringing these proceedings to the date upon which the Statement of Claim was filed in September 2015. That question, is of course, to be resolved by asking whether it is just and reasonable to permit the proceedings to be brought at that stage. I should say that I am satisfied on the material before me that if the matter were allowed to proceed, Mr Jones would have evidence available at the final hearing which, if accepted, would support an award of damages in his favour: Yu v Spiers [2001] NSWCA 373; that is I am satisfied that in general terms Mr Jones has shown that he has a viable cause of action.
60. On the other hand, for the reasons I have already given, I am not satisfied that he has exercised forensic diligence in advancing his own interests in bringing a case for damages. I have already explained why I am of the view that by taking reasonable steps available to him he would have become aware of all of the matters referred to in s 60I(1)(a) by February 2005. It's clear that his cause of action, in reality on the material before me, probably accrued soon after the Walgett incident of December 1990. Whatever may be made of the other traumatic incidents particularised his cause of action could have accrued no later than his last actual day of service on 14 February 2000. There may even have been a question in 2005 about whether it was just and reasonable to allow an extension of time. However, I am of the view that at that stage, Mr Jones would have been able to satisfy a court that he had exercised forensic diligence in advancing his own interests. The issue of prejudice would still have loomed large but it may not have been insurmountable. The same cannot be said in relation to the commencement of proceedings in 2015.
61. And I am of the view, for the reasons largely submitted by Mr Hutchings that the defendant could not have a fair trial in relation to these matters in or after 2015. Although the defendant has not been able to point to actual prejudice because of the delay, I am persuaded by Mr Hutchings arguments that the difficulty, viewed from the standpoint of 2015, of defending a case involving multiple incidents extending back for more than a quarter of a century would be insurmountable for the type of reasons explained by McHugh J in Brisbane South v Taylor at p. 551. I am of the view that these difficulties are obvious and, in the present case, provide compelling evidence of presumptive prejudice, which Mr Jones has not rebutted. So far as that is concerned, given the length of the delay in seeking to bring the case, the frailty of human recall will be a very significant factor. As McHugh J pointed out at p. 551: "Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." (citation omitted) These particular, often subtle, difficulties must inevitably permeate the whole of the defendant's attempts to mount a defence.
62. As Mason P pointed out in Jones v Royal Hospital for Woman some cases really fall into a category, even if exceptionally, of "inordinate delay" such that the favourable exercise of a discretion is not justified. This is one such case. Application of the Workers Compensation Act 1987 (NSW)
63. Mr Jones relied upon the provisions of Part 5 of the Workers' Compensation Act 1987 (NSW) in the alternative to the Limitation Act as justifying a grant of leave for him to commence the proceedings. Although my conditional findings relevant to the exercise of the general discretion would preclude the claim for damages under Division 3 of Part 5 of that Act in any event, because it would for the same reasons not be just and reasonable to extend time, as it was argued, it is appropriate that I set out my views as to why the workers' compensation legislation is not applicable to this case in any event.
64. Section 151D fixes a limitation period of three years for bringing a claim for common law or work injury damages under the Workers Compensation Act 1987 subject to a flexible unlimited discretion to extend time. For the purposes of interpreting the Workers Compensation Act 1987, the Injury Management and Workers Compensation Act 1998 (NSW) is to be utilised and forms part of the Workers Compensation Act 1987. Section 4 of the Workplace Injury Management and Workers Compensation Act 1998 provides that "a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906" is not a worker under the Workers Compensation Acts. Section 5 of the Police Regulation (Superannuation) Act provides that all qualified persons are contributors to the fund by way of deductions made to their salaries. The Police Superannuation Fund was closed to any police officer who became a member on or after 1 April 1988 and therefore a qualified person is any member of the police force who was "attested" before this date.
65. As I have said Mr Jones became a trainee police officer on 18 May 1987 and was "attested" as a probationary constable on 7 August 1987. He has also been receiving a hurt on duty pension as a result of his entitlements under the Police Regulation (Superannuation) Act 1906 (NSW). It would appear therefore that Mr Jones is a qualified person under the Police Regulation (Superannuation) Act 1906 (NSW) and therefore is not a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998. Accordingly the limitation provisions under the Workers Compensation Act 1987 are not applicable to these proceedings.

Orders

1. For these reasons my orders are: 1. Dismiss the application under s 60G Limitation Act 1969 NSW to extend the time for the plaintiff to bring these proceedings; 2. Dismiss the proceedings commenced on 9 September 2015; 3. The plaintiff to pay the defendant's costs of the proceedings.

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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. Decision last updated: 30 June 2020