Wednesday, 10 December 2003
STATE OF NEW SOUTH WALES v PAUL JUDD
Judgment
1 HANDLEY JA: The opponent Paul Judd (the plaintiff) claims that he was assaulted by a police officer on 25 April 1996 and suffered a broken jaw and a broken tooth. The police officer was charged with assault occasioning grievous bodily harm or in the alternative assault occasioning actual bodily harm and on 1 September 1997 he was committed for trial. He was later acquitted but the date of his trial and the date of his acquittal were not proved. He has since left the police force.
2 The primary limitation period for an action against either the policeman or the State was three years pursuant to s.18A(2) of the Limitation Act, but under s.60C this period could be extended by the Court.
3 On 10 July 2001 the plaintiff applied by notice of motion for an extension of time to enable proceedings to be brought against the former policeman and the State. The motion was heard by Nicholson SC DCJ and in a reserved judgment delivered on 7 February 2003 he ordered that the limitation period for the cause of action set out in a draft statement of claim be extended until 31 March 2003. The former police officer was not served and there was no order for substituted service. That part of the order was made in breach of a fundamental requirement of natural justice, and must be set aside.
4 The State applied for leave to appeal from the decision and the summons has been fully heard so that the proceedings can be disposed of without a further hearing.
5 The plaintiff consulted his present solicitors (the firm) in July 1996, following surgery and a period in hospital. Mr Hasson assigned him to a Mr Joe Weller. The plaintiff stated in his affidavit of 22 November 2001 that he understood from Mr Weller's advice "that it would be necessary to wait until the criminal proceedings were over before making any claim in relation to my injuries". The plaintiff does not recall receiving any advice in relation to limitation periods from Mr Weller.
6 In early 1997 the plaintiff became aware that Mr Weller had left the firm and taken his file. The plaintiff spoke to Mr Weller and asked him to continue to act as his solicitor. After the police officer had been acquitted the plaintiff was advised by Detective Inspector Ferguson to make a victim's compensation claim. He spoke to Mr Weller and believed that such a claim had been made.
7 The plaintiff had made such a claim before for an assault by a taxi driver and had received compensation. He had also made a successful claim for damages arising from a motor vehicle accident and a successful claim for workers' compensation. Nevertheless he said in his affidavit of 22 November 2001 that in 1997 and 1998 he was not aware of any rights arising from the assault other than his victim's compensation claim.
8 In 1999 he became concerned that Mr Weller was not doing anything about his victim's compensation claim and he found out through an acquaintance that no such claim had been made. In October he instructed Mr Hasson who obtained the file from Mr Weller. Mr Hasson obtained advice from counsel and had a conference with the plaintiff and sought further information. He did not receive this and his efforts to communicate with the plaintiff in 2000 were unsuccessful.
9 In January 2000 the plaintiff's teenage daughter by his de-facto partner Donna Hare, discovered her mother in bed with another man and told her father. The plaintiff said he was devastated by the news and the parties separated. The plaintiff became depressed and "at that time, any court case relating to my assault was the last thing from my mind".
10 He was away from work for a few weeks but after that remained depressed, did not go out socially, and drank to excess at home. He recovered somewhat and was able to attend the Rugby League World Cup in England in November. He continued to feel depressed until March 2001.
11 The plaintiff and Donna were reconciled in June 2001 and she moved back into the home. He felt better and again turned his mind to making a claim for the injuries he received in the assault. He spoke to Mr Hasson who filed the application for an extension on 10 July.
12 The judge found these facts on the affidavit and oral evidence of the plaintiff and the affidavit evidence of Mr Hasson. He said that there had been no challenge to most of that evidence and Mr Hasson had not been required for cross-examination.
13 His Honour said (para 18) that in December 1999 Mr Hasson may have told the plaintiff about ss.58 and 60C of the Limitation Act. He said that in considering the plaintiff's explanation for the delay "a matter appropriate for me to have regard to in the exercise of my discretion is whether there was a material fact of a decisive character relating to the right of action that was not within the knowledge of [the plaintiff] until after the limitation period had expired" (para 27).
14 This was a reference to s.58(2)(a) but it only applies to causes of action accruing before 1 September 1990.
15 Mr King SC for the plaintiff submitted that the judge's remarks in para 27 were directed to issues under s.60E and his Honour was not referring to s.58 but this submission must be rejected. His Honour used language found only in s.58 and he had referred to s.58 in para 18. He dealt with the s.60E issues in paras 34-8 which he headed "s.60E issues".
16 The judge found that there were two explanations for the delay, the legal advice the plaintiff obtained from Mr Weller [para 5], and the adjustment disorder diagnosed by Dr Nielssen that existed between January 2000 and March 2001. He said that "on [the plaintiff's] case it is the [policeman] who is responsible for some or perhaps most anxiety as contributed to [the plaintiff's] psychiatric condition".
17 The judge was satisfied that Mr Weller obtained two medical reports in 1998 for an application for victim's compensation if the policeman was convicted. He said that Mr Weller had acted for the plaintiff on his previous application for victim's compensation but Mr Hasson did (T 8/11/02 p 15).
18 Neither party proved when the police officer was acquitted. This was highly relevant because, on the affidavit evidence, the plaintiff's only explanation for delay during the three year limitation period was Mr Weller's advice. His Honour inferred that the criminal trial concluded between July and October 1999 (para 39).
19 Mr Hasson said that after he was consulted by the plaintiff in October 1999 he obtained counsel's advice and then saw the plaintiff in December and sought further information. The legal vacation and the break down of the plaintiff's relationship with his de-facto wife followed and contributed to the further delay until he fully recovered from his depression in March 2001.
20 The State applied for leave to file further evidence in this Court to prove that the criminal trial concluded on 2 September 1998. This was neither fresh evidence nor evidence of events which had occurred since the original hearing. It was highly relevant but this is the problem. Both parties elected to conduct the proceedings at first instance without proving this fact although it was a matter of public record which the State in particular could easily have ascertained and proved. Both sides took their chance and the judge inferred that the trial concluded one year later than it did.
21 The relevance of this fact was apparent from the plaintiff's affidavit of 22 November 2001 filed nearly a year before the hearing. He said he was advised to wait until the conclusion of the criminal trial before bringing any claim for compensation. In the light of this explanation one would have expected the plaintiff to consult his solicitor as soon as the trial was over.
22 The plaintiff did not explain the delay of about a year after the true date of the trial and was not asked to do so. He may or may not have had a good explanation. The Court could not admit the evidence without giving the plaintiff an opportunity to explain this delay but that would involve a re-hearing of the motion. The State would be entitled to cross-examine the plaintiff generally, and legal professional privilege having been waived, it could have subpoenaed Mr Weller, obtained access to his file, and cross-examined Mr Hasson.
23 Evidence which is not technically fresh may more readily be admitted on an interlocutory appeal. See Wickstead v Browne (1992) 30 NSWLR 1 and compare Nominal Defendant v Manning (2000) 50 NSWLR 139. Such evidence will more readily be admitted where the appellate court can fairly deal with it without ordering a new trial. The court will be reluctant to admit additional evidence which is not technically fresh where this would require a new trial, and that is this case.
24 The parties, and in particular the State, having elected to conduct the hearing at first instance without attempting to prove this fact will not be permitted to make that hearing a waste of time and money by proving that fact on appeal and obtaining a new trial. Accordingly we rejected the additional evidence and announced that our full reasons would be incorporated in the judgment or judgments disposing of the summons.
25 On the findings and evidence before the judge there is some explanation for the whole delay. Following his recovery from his depression in March 2001 the plaintiff focussed on re-establishing his relationship with his de-facto wife. Once this had been achieved he consulted Mr Hasson and the notice of motion was promptly filed.
26 The judge found that the assault and resulting injuries contributed to the plaintiff's anxiety, basing this on Dr Nielssen's report. The connection, so far as the acts of the police officer was concerned, was obvious but the judge found that the plaintiff did not become aware of the connection between his injury and the acts or omissions of the State until after he consulted Mr Hasson in October 1999 (s.60E(1)(e)). This followed, the judge thought, because, without proper legal advice, the plaintiff would not have known that the State was vicariously liable.
27 However the vicarious liability, by statute, of the State for the torts of its police officers is not based on its own acts or omissions. It depends on legal principles which make it liable for the tortious acts or omissions of police officers committed in the course of their duties (Fleming "The Law of Torts" 9th Ed 1998 p 412). Thus in the claim against the State the act referred to in s.60E(1)(e) is that of the police officer.
28 Awareness of the connection between the injury and the defendant's act or omission only requires knowledge of the facts. The plaintiff need not be aware of the legal significance of the facts. See Dedousis v Water Board (1994) 181 CLR 171, 181; and Drayton Coal Pty Ltd v Drain (CA, unreported, 22 August 1995) per Gleeson CJ at 5, decisions on the equivalent provision in s.60I(1)(a)(iii).
29 The judge also erred in finding (paras 33, 39, 40) that there was a connection between the plaintiff's depression and the acts of the police officer for which the State was responsible. Dr Nielssen said in his report of 6 August 2001 that for some time after the assault the plaintiff "was quite anxious about retaliation by the police" (p 2). He said (p 5) that the plaintiff reported anxiety symptoms associated with the fear of retaliation by the police but these were not disabling and decreased over time. However he was severely affected by the separation from his de-facto wife and "became significantly depressed. This affected his ability to manage his affairs, both as a result of the symptoms produced by the illness, which included anxiety … and also [by] the extra duties required to meet the mortgage payments and care for his children".
30 Dr Nielssen's report does not support the judge's finding that the anxiety experienced by the plaintiff in 1996 and possibly 1997 had any effect on the anxiety and depression he experienced in and after January 2000. The judge's finding that there was a causal relationship with these events of 1996 cannot be supported.
31 The judge held that the plaintiff should not be penalised for accepting the advice from Mr Weller (paras 46, 55). He said (para 48) that "there is a real public interest in having a case of this nature argued against the alleged tortfeasors responsible for the Applicant's injury".
32 With respect, any public interest in the curial investigation of these events was satisfied by the criminal proceedings. A civil action for damages against the State would not further promote the public interest.
33 Counsel for the State conceded below that the State would not relevantly be prejudiced by having to defend the plaintiff's action on the merits (para 53). Since there could be a fair trial, despite the delay, the judge considered that it would be fair and just, for the reasons he had already given, to grant the extension.
34 The judge's errors [paras 13-15, 17, 26-30, 31-2] vitiated his exercise of the discretion and this Court must re-exercise the discretion.