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[2005] NSWSC 1138
Supreme Court of NSW
2004-06-16
Hidden J
Original judgment source is linked above.
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.
Delay/prejudice 26 Whether an extension of time should be granted also turns upon the considerations in s60E of the Limitation Act, against the background of authorities such as Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and ASB-Tech Services Pty Ltd v Doeland & Anor [2003] NSWCA 167. Those authorities were also referred to in Gould at [26] ff, and need not be revisited. It is necessary to examine the length of delay in bringing the proceedings and the reasons for it, together with the prejudice to the defendant, both presumptive and actual. 27 Before turning to the evidence about the delay, it is convenient to deal immediately with the first eight incidents. As to them, the defendant has made out a substantial case of actual prejudice, arising from the death of relevant witnesses, including the plaintiff's commanding officers at different times, or the inability to locate them, together with the lack of contemporaneous records. The evidence about this is conveniently summarised in the defendant's written submissions and it need not be set out here. 28 Counsel for the plaintiff sought to downplay this evidence by the observation that the claim relates to the Police Service's system rather than to misbehaviour within it, citing State of New South Wales v Brennan [2004] NSWCA 206, per Cripps AJA at [33] - [37]. However, as counsel for the defendant argued, the absence of relevant witnesses and records deprives it of the opportunity to investigate the plaintiff's condition after each of the incidents, any steps taken at the time to alleviate that condition and any procedures which might then have been available to assist him. The observations of Giles JA in State of New South Wales v Donnelley [2004] NSWCA 133 at [51] - [54], upon which counsel relied, are apt. 29 The same cannot be said, however, of the ninth incident. As to it, the defendant relies only on evidence that it is "likely" that any records of the plaintiff's welfare assistance of fellow officers would by now have been destroyed. This incident arises from events towards the middle of the 1990s. In his affidavit the plaintiff named the officers whom he assisted and supplied contact details for some of them. Apart from one officer who committed suicide, there is nothing to suggest that they are not all available to the defendant. Nor is it suggested that officers commanding the plaintiff at the relevant time are unavailable. No actual prejudice was asserted in respect of the tenth and eleventh incidents. 30 Let me turn, then, to the question of delay. About this the plaintiff gave evidence both by way of affidavit and orally, and I also have an affidavit of his solicitor. There is some inconsistency in this material. 31 The plaintiff deposed that he was not aware of his condition (which he described as post traumatic stress disorder) until about the middle of 1997, after consultations with Dr Westerink. It was not until early 1998 that he realised that that condition was the result of the way he had been treated by the Police Service. He went on to depose that in October 1999 he consulted his present solicitor, who advised him that he might have a claim against the defendant. He explained that in the meantime he was on antidepressant medication, which caused him to be "very sick, confused and unable to make decisions." 32 In cross-examination, he acknowledged that by July 1996 he knew that he was not functioning properly in his employment as a result of his being named in the Royal Commission and being rejected for promotion, as well as his difficulty in coping with the task of providing welfare assistance to other officers. He had taken leave in January 1997 on the basis, among other things, of post traumatic stress disorder, anxiety and depression. In 1996 he had instructed a different firm of solicitors to pursue the question of his promotion and he retained them for the purpose of seeking his medical discharge, but he did not seek their advice about proceedings against the Police Service for damages. 33 The affidavit of his present solicitor disclosed that he consulted her for advice about a claim against the defendant in July 1999. Later in that year she briefed counsel to advise about the matter and, in due course, the statement of claim was issued in July 2000. Submissions on behalf of the defendant were centred on the delay up to the time the plaintiff first consulted that solicitor, and no point was taken about the passage of time thereafter. 34 As was the case in Gould (at [29]), the plaintiff's explanation for the delay is not entirely satisfactory. However, it is reasonable to have regard to his psychological condition and, in particular, to his unchallenged evidence about the effects upon him of his medication. For reasons similar to those I found in Gould (at [29] - [30]), I am satisfied that the proper exercise of discretion favours granting the plaintiff relief for a claim in respect of the ninth, tenth and eleventh incidents. Confined to those incidents, the delay in bringing the claim is not unduly long. The events upon which it is based are relatively recent, and no actual (as opposed to presumptive) prejudice has been established. It does not appear to me that a trial, so confined, would be unfair and I am satisfied that it is just and reasonable to grant the extension of time sought. 35 Accordingly, for the purpose of the claim based upon the ninth, tenth and eleventh incidents, I extend the time for filing the statement of claim to the day on which it was filed, 19 July 2000. However, applying the observations of Sheller JA in Holt v Wynter (2000) 49 NSWLR 128 at [121], the plaintiff should pay the defendant's costs of the application. As in Gould, his counsel put no argument to the contrary.
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Reeves
NSW
Gould v State of NSW [2005] NSWSC 1121 Yu v Speirs [2001] NSWCA 373 Sullivan v Moody (2001) 207 CLR 562 State of NSW v Paige (2002) 60 NSWLR 371 CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ASB-Tech Services Pty Ltd v Doeland & Anor [2003] NSWCA 167 State of NSW v Brennan [2004] NSWCA 206 State of NSW v Donnelley [2004] NSWCA 133 Holt v Wynter (2000) 49 NSWLR 128
(2001) 207 CLR 562
(2002) 60 NSWLR 371
(1996) 186 CLR 541
(2000) 49 NSWLR 128