King v Queensland Corrective Services Commission [2000] QSC 342

Supreme Court of Queensland|2000-10-05|Before: Mullins, J

[1] MULLINS J: This is an application by the plaintiff ("applicant") pursuant to s 31 of the Limitation of Actions Act 1974 ("Act") to extend the period of limitation for this action commenced by writ of summons filed on 23 June 1997 against his employer The Queensland Corrective Services Commission ("respondent") as defendant. The application is opposed.

[2] The applicant was involved in an incident on 12 June 1992 which occurred during the course of employment with the respondent. The applicant was a correctional officer who conveyed Harold John McSweeney, an inmate of Brisbane Correctional Centre and classified as a high security prisoner, to the cells of the Law Courts in company with other inmates in a prison van supplied by the respondent. Upon arrival at the cells, McSweeney was removed from the van and taken to cell number 8 by the applicant.

[3] The prisoner produced a replica firearm from his person, threatened and assaulted the applicant and escaped from the cells. The applicant and fellow correctional officers pursued McSweeney to the City Plaza bus stop at the corner of George and Adelaide Streets, Brisbane where McSweeney boarded a Brisbane passenger bus and by placing the replica firearm to the head of the bus driver, attempted to abscond. The applicant's fellow correctional officer Raymond Michael Coker shot McSweeney with his service revolver inflicting fatal head injuries in the immediate presence of the applicant.

[4] The only debriefing which the applicant received through his employer after the incident was a group debriefing. It does not appear that the applicant had any time off work following the incident.

[5] Mr Coker suicided by gunshot on 27 January 1994. This caused great distress to the applicant.

[6] At the time of the incident the applicant was married with two young children. After Mr Coker's death, the applicant's wife insisted that he consult a doctor. The applicant consulted general medical practitioner Dr Denise King who referred him to psychiatrist, Dr Malcolm Foxcroft.

[7] The applicant first attended on Dr Foxcroft on 24 May 1994. He presented with symptoms of severe anxiety, depression and post traumatic stress. In relation to post traumatic stress, Dr Foxcroft recorded that the applicant had had nightmares, flashbacks and irritable mood with symptoms of withdrawal from his usual social life, irritability and a feeling of detachment and was sensitive to loud noises and would jump and feel himself getting paranoid at work. Dr Foxcroft stated in his report dated 24 April 1997 addressed to WorkCover Queensland as follows:

"At the time of presentation he presented with symptoms of a major depressive disorder with irritability, poor sleep, low mood, poor concentration, low energy, early morning wakening and initial insomnia, loss of interest in his usual activities and extreme anger and irritation. These symptoms were present in addition to his symptoms of post traumatic stress disorder as previously described and his symptoms of post traumatic stress disorder were also worse. There had been a deterioration in his family life as a result of his symptoms and an increasing problem of withdrawal from the family, detachment from emotional aspects of family life and difficulty in providing usual discipline with the children without losing his temper."

[8] It should be noted that the applicant did not volunteer these symptoms to Dr Foxcroft. It was a case of Dr Foxcroft's pressing the applicant for examples and asking specifically about whether he was suffering from particular symptoms.

[9] Dr Foxcroft treated the applicant with counselling and the prescription of Prozac. The applicant attended on Dr Foxcroft on 6 and 23 June 1994. When reviewed by Dr Foxcroft on 19 July 1994 Dr Foxcroft noted that the applicant "reports no symptoms of depression and no evidence of poor sleep or excessive dreaming and he is back to his usual level of coping with the job, enjoying his work and he appears to have revived his sense of humour and general cynicism". Dr Foxcroft also noted that the applicant was hoping to achieve a transfer to the dog squad and that may help his ability to cope. Dr Foxcroft advised the applicant to continue the Prozac for at least a further 6 months.

[10] When Dr Foxcroft reported to Dr King on 22 July 1994, he noted:

"He was reluctant to discuss information as he was very fearful of the department finding out about his symptoms and thereby placing his job in jeopardy."

When cross-examined on this comment, Dr Foxcroft stated that:

"I think he is expressing a concern that within the work climate and the work culture that he was working that there was a lack of understanding about psychiatric illness and that the discrimination could apply, and that he was fearful of that discrimination and he was wishing to avoid the potential for that discrimination to occur."

[11] In giving evidence, the applicant explained what his concern was in connection with his employment, if it were known that he were having psychiatric treatment from Dr Foxcroft. He stated that the repercussions would not be so much with his employer who would just transfer him, but there would be a detrimental effect because of the prisoners' attitude.

[12] Dr Foxcroft reviewed the applicant on 6 September 1994 and again on 9 January 1995. Dr Foxcroft considered that the applicant's depression did improve, and as the applicant was keen to reduce and cease the antidepressant medication, arranged for the applicant from 9 January 1995 to taper the antidepressants. The applicant was reviewed by Dr Foxcroft on 11 May 1995 to assess his response to the tapering of the medication and whether he was capable of managing without the medication. On that occasion the applicant indicated to Dr Foxcroft that he was prepared to try and manage without further psychiatric intervention.

[13] Dr Foxcroft considered that on 11 May 1995 the applicant still had symptoms of post traumatic stress, but did not have symptoms of major depression. Dr Foxcroft stated in his report dated 24 April 1997 that the applicant "was functioning moderately well".

[14] The applicant gave evidence that when he saw Dr Foxcroft on the last occasion, Dr Foxcroft said to him at that time that he was "cured". The applicant specifically remembers Dr Foxcroft using the word "cured", because the applicant recalls leaving Dr Foxcroft feeling happy and thinking there was nothing wrong with him.

[15] In cross-examination, Dr Foxcroft stated that he would not have used the word "cured". Dr Foxcroft did try, however, to be positive and encouraging during his last consultation with the applicant regarding his return to work efforts. It had been difficult for Dr Foxcroft to establish a good rapport with the applicant due to the applicant's concerns about the risks of receiving psychiatric treatment. As Dr Foxcroft was concerned for the applicant's safety and his potential for suicide, his primary focus was to encourage the taking of the antidepressant medication and to treat the depression and the long term prognosis for the applicant was not a prominent factor discussed in their consultations. Dr Foxcroft was of the opinion that the attempt by the applicant to move to the dog squad was an attempt at avoidance by the applicant of the workplace which contributed to his post traumatic stress. There was no suggestion by Dr Foxcroft or the applicant that that opinion had been conveyed by Dr Foxcroft to the applicant.

[16] In his report dated 22 June 1998 Dr Foxcroft stated:

"In retrospect I believe that Mr. King probably did not appreciate the seriousness of the condition that he was suffering from at the time and given that he wished to attempt to manage without further psychiatric support I did not consider that it was appropriate to discuss that with him at the time, but rather to offer him a clear option to return should his symptoms deteriorate in any way. As mentioned before there was some difficulty in establishing rapport with Mr. King and I did not wish to jeopardise his potential for returning to psychiatric care by giving him a pessimistic forecast. Rather I tried to be positive and encouraging regarding his return to work efforts."

[17] During the hearing of this application the applicant was cross-examined extensively on the symptoms which he reported to Dr Foxcroft, and why he thought he was cured after seeing Dr Foxcroft when he had still reported to Dr Foxcroft symptoms of post traumatic stress disorder at the last consultation.

[18] The applicant appeared extremely agitated and distressed whilst giving evidence. Notwithstanding the difficulties which giving evidence obviously entailed for him, he made a genuine effort to be responsive to the cross-examination. The applicant was adamant that he had been told by Dr Foxcroft that he was cured. Although the applicant accepted that he reported to Dr Foxcroft about the suffering of the symptoms identified in Dr Foxcroft's report, he also stated that at the time he thought he was fine.

[19] Although I accept that Dr Foxcroft would not have used the word "cured" to the applicant at the time of the last consultation, I find that it is likely that the applicant had the perception from what Dr Foxcroft did say that Dr Foxcroft was saying that the applicant was in effect cured. I also find that the applicant believed he was fine. What Dr Foxcroft said on that occasion to the applicant has to be considered in the light of Dr Foxcroft's being positive and encouraging to the applicant during the last consultation and agreeing to the applicant's ceasing to take medication. The applicant had been an unwilling patient and was keen to cease psychiatric treatment. It would therefore not have taken much encouragement from Dr Foxcroft for the applicant to believe he was being told he was "cured". The fact that the applicant continued working after consulting Dr Foxcroft is also consistent with the applicant's believing he was fine and not believing that he was suffering from any symptoms which were an impediment to his working.

[20] The applicant was cross-examined on what symptoms he could recall he experienced between ceasing to consult Dr Foxcroft and his breakdown in February 1997 as follows:

"Q. Between May 1995 when you ceased seeing Dr Foxcroft up until the time of your breakdown in February '97 do you have a recollection now of how you were feeling on a day to day basis?

A. Now? My word I do. Oh, yeah. I can look back and tell you everything that was going on just about. There was probably a few things that I didn't know about but -----

Q. Well, on a day to day basis were you conscious during that period of suffering any problems?

A. I knew that I was upset and I was angry and I was very protective of myself. And looking back now - looking back from now back to then, yeah, I can see that, you know, I was a mess.

A. No, I - I wish I had, I really do, because then I wouldn't have lost everything."

[21] The effect of the applicant's evidence was that prior to his breakdown in February 1997, he was not aware that he was affected on a day to day basis by symptoms that could be attributed to the incident. The applicant gave evidence which I accept that after he saw Dr Foxcroft, he did not see any problem at home or at work with what was happening with him. I also accept the applicant's evidence that when he received the diagnosis of post traumatic stress disorder from Dr Rees in February/March 1997, he was then able to recall "some of the things that had gone on for me" being symptoms of post traumatic stress disorder which he had not appreciated as affecting him at the time the symptoms occurred. The applicant gave evidence about the shock he felt when he was informed of Dr Rees' diagnosis. That reaction is consistent with the applicant's lack of appreciation of how he was being affected by the symptoms of post traumatic stress disorder prior to his breakdown in February 1997.

[22] On 24 January 1997 the applicant's wife vacated the matrimonial home taking the children with her. On 2 February 1997 the applicant broke down at work and went on leave from that date. He consulted a counsellor employed by the respondent. He also consulted his general medical practitioner, Dr Heather Jeffrey, and it was at that stage that he was referred to Dr Rees. The applicant initially consulted Dr Rees on 14 February 1997.

[23] An application for workers' compensation dated 10 February 1997 was lodged by the applicant with WorkCover on 26 March 1997. Although dated 10 February 1997, it is apparent from the information contained in the application that it was completed after the applicant had consulted Dr Rees.

[24] The applicant reported to psychiatrist Dr Geoffrey Rees that approximately 3 months after the incident a number of symptoms appeared which included nightmares, flashbacks, marked irritability with the propensity to fly into rages, disturbed sleep, dissociative experiences and emotional numbing. An example of a dissociative experience was during the inquest into McSweeney's death in early 1993 when the gun was presented as evidence. The proceedings had to be stopped on a number of occasions, so that the applicant could gather his emotions. He also reported to Dr Rees of suffering from suicidal thinking, panic attacks, marked agoraphobic symptoms and claustrophobia. Although Dr Rees in his report dated 29 April 1997 describes the applicant as reporting these symptoms first appearing 3 months after the incident, it was not clear from the report whether all symptoms manifested themselves 3 months after the incident or whether some of the symptoms manifested themselves over a period of time and the extent to which each of the symptoms were manifest at any particular time.

[25] In oral evidence Dr Rees explained that what he was attempting to convey in the report was his diagnosis at the time of writing the report. Although the applicant reported to Dr Rees the onset of symptoms 3 months after the event, Dr Rees could not say which of those symptoms were apparent 3 months after the incident and which were not. In addition, he explained that people who experience a traumatic incident often get acute symptoms and then things tend to resolve to relative quiescence and that another stressor may disrupt that relative quiescence. Dr Rees described that it was quite common where a person was suffering from post traumatic stress for there to be periods of quiescence or periods where those suffering do not seek help or have resistance to seeking help. When questioned about the applicant's hiding his treatment by a psychiatrist from his employer, Dr Rees responded:

"Well, I think at times people consciously hides symptoms from employers, but I think other times they simply - and especially frankly in those work places that are perceived as more macho, such as the army or the Corrective Services or the police. They frankly just, you know, attempt to get on with the business of life and if you like, unconsciously suppress the symptoms, or deny the symptoms, simply because it's - you know - they're sort of such an appalling burden of shame or ridicule if you actually do come out with this stuff, so I'm not sure it's always conscious. I think that a - you know - a good deal of denial occurs and I'm honestly unable to say whether it was - that this man actually did have symptoms and just didn't talk about them or went into a period of relative quiescence or whether he had symptoms that he really denied to himself and basically tried, quite reasonably, I think, just to you know, to get on with the business of life despite."

[26] During cross-examination of Dr Rees about the symptoms which the applicant was suffering between May 1995 and February 1997, Dr Rees expressed the opinion that the applicant would have known about his symptoms and been able to remember them, but he did not know how active they were through all that period. Dr Rees had recorded in his notes that in the 6 months leading up to when the applicant saw Dr Rees, the symptoms had worsened significantly.

[27] The respondent relied on the detailed information about the applicant's symptoms set out in the application for workers' compensation as showing that the applicant knew that he had suffered from those symptoms and that the McSweeney incident was the principal cause of his symptoms. That application was completed after the applicant had received Dr Rees' diagnosis and the realisation about his symptoms which that brought.

[28] After receiving initial treatment from Dr Rees and being informed by Dr Rees that he was suffering from post traumatic stress disorder and that it was a serious condition, the applicant consulted solicitors and the writ in this action was filed on 23 June 1997. A statement of claim was served on 23 September 1998. The applicant claims damages for negligence occasioning personal injuries, financial loss and other damage. The negligence is alleged in relation to the escape and/or the fatal shooting of McSweeney and it is alleged that the personal injury suffered by the applicant was by way of nervous shock, in particular, resulting in post traumatic stress disorder, depression and anxiety, and anxiety disorder.

[29] The defence was served on 17 February 1999. The respondent has expressly pleaded that the injuries sustained by the applicant are the result of an incident occurring before 22 June 1994 and that the applicant's action is therefore barred by virtue of s 11 of the Act.

[30] The applicant has been unable to return to any form of employment. Towards the end of 1997 the applicant relocated to his parents' farm property at Nanango. The applicant was examined by psychiatrist Dr David Alcorn on 27 August 1998 for the purpose of providing a report to WorkCover. That report confirmed the diagnosis of Dr Rees. The applicant's claim for workers' compensation was settled in September 1998 with a permanent partial disability payout. He now receives Centrelink benefits.

[31] The applicant has continued to receive treatment from Dr Rees.

[32] The issue on this application is whether a material fact of a decisive character was not within the means of knowledge of the applicant until after 23 June 1996. Of the material facts listed in s 30(1)(a) of the Act, the one relied on by the applicant is the nature and extent of the personal injury alleged to have been caused by the respondent's negligence and, in particular, that the injury he sustained of post traumatic stress disorder was likely to be a permanent injury leaving him with chronic and lifelong disabilities and was so serious that it was likely to force him out of his work as a prison officer and significantly endanger his earning capacity in the future.

[33] There are a number of authorities where the court has treated the consequences of injury including economic consequences as a potentially material fact of a decisive character relating to the right of action. In Byers v Capricorn Coal Management Pty Ltd [1990] 2QdR 306 the plaintiff had been told on a number of occasions that he had a muscular strain that would probably clear up. The new fact which transformed his case into one which would then probably result in a substantial award of damages for future economic loss was advice from an orthopaedic surgeon that it would be necessary for him to get a different and lighter job to that which was his occupation at the time of the accident.

[34] The respondent relied on statements made in Pizer v Ansett Australia Limited [1998] QCA 298. In that case the plaintiff was a flight attendant who issued a plaint on 24 April 1996 claiming that in September 1992 her duties caused an aggravation of her pre-existing degenerative condition of the thoracic spine which was the result of the defendant's failure to provide a safe system of work. The plaintiff was aware of her back problem by September 1992 and had by April 1993 identified the cause of the pain as arising from her duties at work. She had treatment and, although her back pain improved, it remained a problem. She became aware of the seriousness of her condition and that it was likely to cause serious economic loss only when she found out on 22 December 1995 about a medical report obtained by her employer. There was evidence to show that prior to 22 December 1995 the plaintiff suffered a reasonably high level of pain and suffering that arguably ought to have induced a reasonable person to take appropriate advice. It was stated by Thomas JA in paragraphs 15 and 16 of his judgment (footnotes omitted):

"15 The plaintiff had the onus of showing that a material fact of a decisive character relating to the right of action was not within her means of knowledge until some time after 24 April 1995. The material fact has been expressed in different ways and may be taken as the likelihood that she would be unable to cope with her employment as a result of the condition, or that the condition was one that was likely to produce serious economic loss. It may be accepted that she did not know that fact before the specified date. However she must also show that it was not within the means of knowledge of a reasonable person knowing what she knew. That issue is to be determined on the footing that such a person had before that time taken all reasonable steps to ascertain it. It makes little practical difference whether one approaches 'the reasonable steps' issue from the viewpoint of the plaintiff endowed with the qualities of a reasonable person or of a reasonable person endowed with the knowledge and experience of the plaintiff. Some of the cases deal with the issue in the firstmentioned way, although strictly speaking the secondmentioned way would seem to accord more literally with the statute.

16 The following proposition poses the test that is critical to the determination of this case. If a reasonable woman, knowing what the plaintiff must have known, and having taken appropriate advice on those facts would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and that she ought in her own interest to bring it, then the plaintiff fails to show 'that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant' prior to the necessary date."

[35] In Watters v Queensland Rail [2000] QCA 51 the plaintiff had worked as a member of a train crew for the defendant from 1982. He had since 1987 been aware of some hearing loss which could be attributed to exposure to excessive noise levels in train cabins over a lengthy period. Notwithstanding the hearing loss, for which he was treated he was continually certified by the defendant's medical examiners as fit for employment in the same position. In 1996 the defendant determined to enforce standards in relation to employees performing the duties of train crew which precluded the plaintiff because of his hearing loss from continuing in that position. He was stood down. The finding was made at first instance that when the plaintiff was stood down and it was subsequently confirmed that his hearing loss prevented him from carrying out his duties as a train driver, a new fact about the nature and extent of his injury became known to him. That decision was affirmed by a majority on appeal.

[36] The respondent submits that the applicant must be unsuccessful on this application because:

(a) on the evidence the applicant was aware that he was suffering with symptoms which he had disclosed to Dr Foxcroft prior to 23 June 1996, that those symptoms persisted after he ceased seeing Dr Foxcroft and those symptoms put his employment at risk;

(b) in any case, a reasonable person knowing what the applicant knew about the symptoms from which he was suffering prior to 23 June 1996 and having taken appropriate advice on those facts would regard those facts as showing that an action would have a reasonable prospect of success and would result in an award of damages sufficient to justify the bringing of the action.

[37] The authorities to which I have been referred are concerned with whether the plaintiff's actual knowledge of physical injury and its warning signs and consequences amounted to sufficient information to the plaintiff to have justified the commencement of proceedings. The question arises whether the applicant's knowledge of his suffering at various times after the incident of such things as nightmares, flashbacks, irritable mood and suicidal thinking and his breakdown during the inquest into McSweeney's death can be treated as knowledge of those symptoms, if at the same time an aspect of post traumatic stress disorder could have been suppression of the symptoms or denial that he was suffering symptoms.

[38] When it comes to applying the reasonable person test as to whether advice should be sought on the basis of what the applicant knew at any time prior to 23 June 1996, it must be in respect of what the applicant acknowledged or was appreciated by him and not what could have been drawn out of him by a skilful psychiatrist or lawyer.

[39] The respondent submitted that there was no psychiatric evidence which would support the view that there was some medical reason why the applicant was incapable of knowing during the period prior to 23 June 1996 the fact that he was suffering from the symptoms. I do not accept that submission. There is the evidence of Dr Foxcroft about the applicant's lack of appreciation of the seriousness of his condition and the evidence of Dr Rees of various reasons why the applicant may have suppressed or denied the symptoms. There was also the evidence of the applicant himself which I found to be quite compelling as to his lack of insight into his problems after the incident and even during his treatment by Dr Foxcroft until he ultimately broke down in February 1997 after his wife and children left him.

[40] The respondent submitted that if the applicant had consulted solicitors prior to 23 June 1996 and Dr Foxcroft had been asked to supply a report as to the applicant's treatment and prognosis, he would have produced a report in the same terms as that dated 22 June 1998. That submission assumes that a reasonable person in the applicant's position would have sought legal advice. I do not find that a reasonable person in the applicant's position knowing what the applicant believed about his ability to continue to function at work and at home when he was continuing to do so would be taking advice. In any case, I note that Dr Rees recorded a worsening of symptoms in the 6 months which preceded his being consulted on 14 February 1997 which was therefore after the critical date for the purpose of this application of 23 June 1996.

[41] In any case, on all the evidence which was before me, when the applicant ceased being treated by Dr Foxcroft in May 1995, he was aware he had received psychiatric treatment over a total period of 12 months, although the intensive treatment was for a period of 2 months only; he was not told that he had a poor prognosis and believed he was cured; he had lost no income and intended to continue to work for the respondent and had no prospect of losing income in the future; there was no indication that he would need to spend money on psychiatric treatment in the future; he believed he could get on with his personal and work life; and his symptoms did not worsen until after 23 June 1996. A reasonable person knowing these matters would not regard those facts as showing an action for damages against the respondent as having a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action, even if appropriate advice was taken on those facts known to the applicant.

[42] I find that the applicant has shown that a material fact of a decisive character (namely that the injury he sustained of post traumatic stress disorder was likely to be permanent and so serious as to prevent his working in the future) was not within the means of knowledge of the applicant until after 23 June 1996.

[43] I will therefore order that the period of limitation for this action be extended, so that it expires on 23 June 1997. I will hear submissions on costs.

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