Reeves v NSW

The application 16 The application, as filed, seeks an extension of time under s60C of the Limitation Act, which enables a court to extend the limitation period for up to five years. The plaintiff was given leave at the hearing to amend the application to include a claim for relief under s60G, which imposes no upper limit upon the period for which an extension might be granted. A similar amendment was allowed in Gould v State of New South Wales (supra), for much the same reason: it was thought that there might have been a question when a cause of action arose, given that the first eight traumatic incidents relied upon dated from the early 1970s to the late 1980s. 17 However, any cause of action accrued only when the plaintiff suffered damage, that is, the psychological injury. In final written submissions it was common ground that, whatever might have precipitated that injury, the damage could not have been suffered earlier than September 1995, when he described the symptoms to which I have referred after the publicity of Mr Lysaught's evidence at the Royal Commission. As I have said, the statement of claim was filed in July 2000. That being so, s60C has sufficient scope to afford the plaintiff the relief he seeks and there is no need to resort to s60G. The fundamental question is whether, in the terms of s60C(2), it is "just and reasonable" to grant the extension.

Viable cause of action? 18 Counsel for the defendant submitted that the application should be refused because the plaintiff had failed to establish a viable cause of action, referring to Yu v Speirs [2001] NSWCA 373. I set out the relevant principles in Gould at [13] and [25], and I need not repeat them. 19 As to the first nine incidents, it was argued that the evidence falls short of establishing a causal connection between them and the plaintiff's condition, and that the expert evidence does not point to any act or omission on the part of the Police Service in relation to them. The plaintiff acknowledged in evidence that he had not approached the Police Welfare Branch, although he had always been aware of its existence. He also did not approach the Police Psychology Unit. He could not recall when that unit was formed, but was certainly aware of it before 1995. He said that on occasions he sought advice from senior officers, the nature of which he did not disclose, but he did not seek any counselling outside the Police Service. 20 There is considerable force in this submission, and it must be said that it was not addressed in submissions in reply on behalf of the plaintiff. Indeed, the nine incidents received relatively little attention in the submissions of counsel for the plaintiff generally. As I have said, while they are referred to in the expert reports, the primary focus of those reports is upon the Royal Commission and the promotion application. 21 That said, it does appear to me that the evidence is capable of supporting an inference that those earlier incidents contributed to the plaintiff's psychological state from the mid 1990s. However, I find it unnecessary to decide this question in relation to the first eight incidents because, as will be seen, I would exercise my discretion against allowing the plaintiff to pursue a claim founded upon them. The ninth incident, arising from the plaintiff's acting as a welfare officer, falls into a different category. There appears to me to be sufficient evidence of duty, breach and damage to pass the threshold test set by the authorities, and there are not the same discretionary considerations militating against granting the plaintiff relief. 22 The argument of counsel for the defendant about the plaintiff's failure to seek the assistance of Police Welfare or the Psychology Unit is also applicable to the tenth and eleventh incidents, the Royal Commission and the failed promotion application. As to the tenth incident, counsel also pointed out that the proceedings in the Royal Commission and media publicity were independent of the Police Service and beyond its control, and that any claim based upon the publicity and the failure of the relevant media outlet to retract it intersected with the law of defamation, raising the considerations discussed in Sullivan v Moody (2001) 207 CLR 562 at [53] - [54]. The same points were made in Gould at [20] ff. 23 However, as in Gould, counsel for the plaintiff made it clear in submissions in reply that the claim is founded not upon the proceedings in the Royal Commission as such, but upon the response of the Police Service to the plaintiff's experience of it. What is alleged is that it was foreseeable that police officers might be the subject of false allegations in evidence at the Commission and that the defendant was in breach of a duty to "have in place processes" to ameliorate psychological injury which those officers might suffer as a result. 24 As to the eleventh incident, it was submitted for the defendant that the Police Board is a statutory body, created by the Police Service Act and independent of the Police Service itself. Further, it was argued that the Board owed no duty of care to the plaintiff in the discharge of its statutory functions, for the reasons of public policy identified in Sullivan v Moody and State of New South Wales v Paige (2002) 60 NSWLR 371. This is also a matter which was not adequately dealt with in the plaintiff's submissions in reply, except to suggest that the Board is a defendant in the proceedings. It is not a question which I would be prepared to decide in the absence of full argument. In any event, as I understand it, the plaintiff's case is that the Police Service failed in a duty to mitigate foreseeable psychological injury resulting from the Board's decision. 25 Accordingly, while the defendant has raised significant issues about the case on the tenth and eleventh incidents, I am satisfied that the plaintiff's evidence is sufficient to pass the threshold test in respect of them also. As to those incidents and the ninth incident, I do not overlook the report of Associate Professor Richard Bryant, psychologist, obtained on behalf of the defendant (although it was not referred to in final submissions). I turn, then, to consider other matters bearing upon the exercise of the discretion to grant an extension.