State of NSW v Elms

(1) Leave to appeal granted. (2) Notice of appeal to be filed within 14 days. (3) Appeal allowed. DECISION: (4) Orders below set aside. (5) Application remitted to the Common Law Division to be determined in accordance with these reasons. (6) Opponent to pay the claimant's costs of the application and appeal and have a suitor's fund certificate if otherwise eligible. (7) Opponent to pay the costs of the hearing before the Associate Judge.

CATCHWORDS: LIMITATION OF ACTION - Extension of time - Claim by police officer for psychological/psychiatric injury - Onus on plaintiff to show there can be an acceptably fair trial - Requirement to identify the issues to be tried - Need for reasonable clarity as negligence alleged against defendant - Onus to show there can be an acceptably fair trial not discharged in the absence of such clarity.

LEGISLATION CITED: Limitation Act 1969 (NSW) ss 18A, 60C, 60E

CASES CITED: State of New South Wales v Brennan [2004] NSWCA 206 Whybro v State of NSW [2006] NSWCA 324

PARTIES: STATE OF NEW SOUTH WALES (Claimant/Appellant) Brian ELMS (Opponent/Respondent)

COUNSEL: P MENZIES QC/ D MALLON (Claimant/Appellant) B TOOMEY QC/ D J PRICE (Opponent/Respondent)

SOLICITORS: McCabe Terrill Lawyers (Claimant/Appellant) Phillip Sim & Associates (Opponent/Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 13 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Elms v State of NSW [2007] NSWSC 876

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40572/07 SC 14607/06

BEAZLEY JA GILES JA HODGSON JA

18 JUNE 2008 STATE OF NEW SOUTH WALES v Brian ELMS Judgment 1 BEAZLEY JA: The court is in a position to give judgment in the matter. I will ask Justice Hodgson to give the first judgment. 2 HODGSON JA: On 13 August 2007, Associate Justice Harrison decided an application brought by the opponent, who I will call the plaintiff, for an extension of time pursuant to s 60C(2) of the Limitation Act 1969 (NSW) to file and serve a statement of claim against the claimant, which I will call the defendant. On that day, the Associate Judge made the following orders: (1) The plaintiff is granted an extension of the limitation period from 1 January 1987 pursuant to ss 60C and 60E of the Limitation Act 1969 (NSW).

(2) A statement of claim is to be filed and served within 14 days.

(3) The plaintiff is to pay the defendant's costs of the application. 3 It is common ground that more properly these orders should have been to extend the time for commencement of the proceedings to 20 November 2007, but nothing turns on this. 4 The defendant seeks leave to appeal from those orders. The application for leave to appeal has been heard on the basis that if leave is granted, the appeal will be decided without a further hearing. 5 It was common ground that the limitation period for the cause or causes of action that the plaintiff wishes to pursue is three years: Limitation Act s 18A. The provisions relevant to the extension of that period which are relied on in this case are at s 60C and s 60 E(1) of the Limitation Act: 60C Ordinary action (including surviving action)

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application 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, not exceeding 5 years, as it determines.

(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the time at which the injury became known to the plaintiff,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h) the extent of the plaintiff's injury or loss. 6 The statement of claim put forward by the plaintiff below and in this court contains the following allegations: 1. These proceedings are brought against the named Defendant pursuant to sections 3 & 5 of the Crown Proceedings Act 1988.

2. The Plaintiff was an employee of the New South Wales Police Service between 24 January 1977 and 7 February 2003.

3. During the course of his employment with the New South Wales Police Service, the Defendant owed the Plaintiff a duty of care.

4. During the course of his employment with the New South Wales Police Service, the Plaintiff was subjected to incremental strain and emotional disturbance culminating in November 1999 when the Defendant's failure to address the emotional strain and disturbance to which the Plaintiff had been subjected resulted in the Plaintiff suffering a psychological breakdown.

5. It is alleged that the Defendant by its servants and or agents was guilty of negligence whereby the Plaintiff suffered the said injury and loss.

(a) failure to devise, institute and maintain a safe system of work so as to avoid injury to the Plaintiff.

(b) failure to adequately warn the Plaintiff of the dangers incidental to his work.

(c) failure to provide the Plaintiff with adequate training to perform his duties.

(d) failure to implement and appropriate training program designed to enforce in the Plaintiff his personal awareness and how to effectively cope with the stress and stresses that he was exposed to.

(e) failure to have the Plaintiff psychologically assessed or adequately assessed as to his suitability to perform his duties.

(f) failure to provide the Plaintiff with any or adequate psychological counseling and or other counseling.

(g) failure to have the Plaintiff psychologically assessed at regular intervals whilst he was performing his duties.

(h) failure to conduct its operations as not to expose the Plaintiff to unnecessary risk of injury.

(i) failure to take any or adequate measures to prevent the Plaintiff's identity as an undercover police officer being revealed to known criminals.

(j) failure to take any or adequate measures to prevent contact between the Plaintiff and target Police Officers following undercover police operations.

(k) failure to respond or adequately respond to the Plaintiff's fears for his safety

(I) failure to properly plan, implement, monitor and or supervise duties assigned to the Plaintiff.

(m) failure to respond and or adequately respond to the Plaintiff's concerns for his welfare and or well being,

(n) failure to introduce and or properly maintain a system of care for the psychological well being of the Plaintiff.

(o) failure to establish and or maintain good and recognised procedures for the assignment of or withdrawal from undercover duties of police officers in the position of the Plaintiff.

(p) failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the Plaintiff into mainstream policing duties.

(q) failure to establish good and recognised procedures for the counselling and or debriefing of undercover police officers in the position of the Plaintiff.

(r) failure to have the Plaintiff psychologically or operationally debriefed or adequately debriefed following his transfer from undercover duties.

(s) failure to implement any system or adequate system to provide for the early identification of symptoms of stress or "burn out" in officers in the position of the Plaintiff by his supervisors.

(t) failure to provide the Plaintiff with support when attending Court in exposing him to contact with offender/s and or offenders' associates

(u) failure to appropriately respond to the Plaintiff's complaints about the conduct of fellow employees of the Defendant.

(v) systemic failure to take reasonable care for the Plaintiff's safety and wellbeing 7 The remaining paragraphs the statement of claim gave particulars of injuries, disabilities and economic loss. No further particulars were given. 8 However, in affidavits by the plaintiff dated 23 February 2007 and 6 June 2007, the plaintiff has set out an account of his service in the New South Wales Police Service and its effect on him. He has also provided medical reports, and a judgment of Robison DCJ which held that the plaintiff's "psychological breakdown" was caused by his duties as a police officer, giving rise to entitlements in the nature of workers' compensation. 9 An important matter to be determined in any application of this kind is whether there can be an acceptably fair trial of the issues raised by the claim made by the plaintiff. The Associate Judge held to the effect that there can be such a trial in this case. As regards the issues of whether the plaintiff has suffered psychological and/or psychiatric injury, and whether this was caused by his duties as a police officer, I see no reason to disagree with her. 10 However, the crucial issues in this case are likely to be whether the defendant is shown to have been negligent and whether the plaintiff's injury was caused by any such negligence of the defendant. There has been no satisfactory identification of the respects in which the defendant is alleged to have been negligent. In my view, it is difficult in a case such as this to decide whether or not there can be a fair trial of the issue of negligence, unless there is a reasonably clear specification of the acts or omissions of the defendant which are alleged to have been negligent and, at least unless this is obvious, of the respects in which they are said to fall short of the required standards of reasonable skill and care. This has not happened in this case. In my opinion, the Associate Judge was in error in not addressing this question. 11 The plaintiff has given quite a detailed account in his affidavit of 23 February 2007 of problems encountered during his 22 years of service. In many of the incidents he describes, there are allegations of conduct by other officers that could possibly support allegations of negligence of the defendant, by its agents, or else could possibly be merely allegations as to the conditions of the plaintiff's employment against which the systems adopted by the defendant and questions of causation should be assessed. 12 The particulars of negligence in the statement of claim are wide enough to include both, and although Mr Toomey QC for the plaintiff has said in relation to one such incident that it is only the latter being alleged, this would need to be made clear in some appropriate way concerning all such incidents. 13 One of the particulars of negligence that Mr Toomey seeks to maintain is particular (u). As it stands, particularly in the light of the contents of the plaintiff's affidavit, this could raise, in relation to each of many complaints made by the plaintiff, questions as to what was the defendant's response to that complaint, in what respect if any was this response inappropriate, did this involve negligence by the defendant or any of its agents, and what if any difference would an appropriate response have made. In some cases it seems this could involve consideration of how the complaints were dealt with by ICAC. Although Mr Toomey has suggested the plaintiff's case is a systems case, this is not clear in relation to the matter of complaints, and there is no identification of what is alleged to be the defendant's system for dealing with complaints, or of what is alleged to be wrong with that system. 14 It may be that some of the particulars, such as (d) to (g) and (o) to (r), and possibly others, would be adequate to define allegations of negligence, if the plaintiff's case was confined to these particulars; but the plaintiff has not confined himself to these particulars, or otherwise indicated the nature of the plaintiff's case on negligence in such a way as to make possible the identification of the issues of negligence with adequate clarity. 15 In that respect, in my opinion, the case is different from the State of New South Wales v Brennan [2004] NSWCA 206 and Whybro v State of NSW [2006] NSWCA 324, in which the plaintiff in each of those cases had sufficiently indicated the case sought to be made out to enable the defendant to address the question of whether there could be a fair trial, and to enable the court to rule on that question and to adjust the particulars in such a way as to adequately define the issues in respect of which the extension of time was being granted. 16 In Whybro, the approach taken is indicated by paragraphs [27] to [30] of my judgment (with which Santow and McColl JJA agreed): [27] In my opinion, although the claimant's case was not limited by her pleading or particulars to one in which the only allegation was the lack of or deficiencies in a system of monitoring and promoting the psychological health of crime scene examiners, and of providing pro-active counselling and debriefing following critical incidents, the particulars and the submissions before the primary judge did convey that this was the substance of the claimant's case. It would have been appropriate in those circumstances for the primary judge to address the prejudice involved in the substance of the claimant's case, and to consider excluding the possibility of prejudice from the width of the particulars by imposing conditions, as was done in State of New South Wales v Brennan [2004] NSWCA 206.

[28] Before this Court, it was made clear that, although the claimant relies on the cumulative effect on her of all 600 or more incidents, her allegations of breach of duty are confined to a lack of or deficiency in the opponent's system(s) for periodic monitoring and promoting the psychological health of crime scene examiners, and of providing pro-active counselling and debriefing after critical incidents; and that as regards the latter, the claimant would rely only on deficiencies evidenced by what happened in relation to a very limited number of incidents. On that basis, the issues would be: (1) What if any system(s) did the opponent have in place between 1990 and 2001 for (a) periodic monitoring of and promotion of the psychological well-being of crime scene examiners, and (b) providing pro-active counselling and debriefing after critical incidents;

(2) In what respects if any did any such system fall short of the system(s) the opponent should have had in place, with consideration of any deficiencies in category (b) being limited to 12 or 13 specified critical incidents;

(3) Whether any injury proved by the claimant was caused by any such deficiencies (albeit that any such injury was also caused by attendance at 600 incidents).

[29] I accept that, even if the claimant's case is so limited, there could still be problems for the opponent in meeting it, particularly in the absence at present of specification of what system(s) the claimant says should have been in place. No doubt the claimant would before trial provide evidence of what she says the system(s) should have been; but the lack of that evidence, or particulars of what the system(s) should have been, bears on the question whether the claimant has now overcome her onus of showing there could be an acceptably fair trial, so that it would be reasonable to order an extension of the limitation period.

[30] There could be difficulties for the opponent in relation to the identification of or exclusion of differences between what would have occurred under whatever system may be alleged and/or found to be a non-negligent system, and what actually occurred; and in assessing what difference any such differences would have made to the claimant's condition. Even if the opponent's system is found to be negligent, it remains relevant to have regard to each and every incident to which the claimant was exposed, in order to assess what their impact would have been on her had a non-negligent system been in place. Accordingly, even on a case properly limited to a systems case as set out in para [28], it can be inferred there would be problems caused to the opponent by delay. However, on the whole, I do not think the problems would be such as to prevent there being an acceptably fair trial. 17 The order in that case granted the extension of time, but limited the issues to those specified in paragraph [28]. Of course it is necessary in each case, once the issues are defined, to make a judgment whether there can be an acceptably fair trial of those issues. 18 As I have said, in this case, in my opinion, the issues concerning negligence are so far from being defined that the defendant has not had a fair opportunity to address the question of whether there could be a fair trial on those issues, and the court cannot now rule on that question. 19 In my opinion, the appropriate course is to set aside the orders made by the Associate Judge and send the matter back for determination, after the plaintiff has made a reasonable attempt to specify the negligence that is alleged against the defendant. What is required is reasonable clarity as to what it is the defendant is alleged to have done or failed to do, and as to the respects in which this is alleged to fall short of standards of reasonable skill and care. The onus is on the plaintiff to show there can be an acceptably fair trial, and it will be difficult to discharge that onus unless that reasonable clarity is achieved. If the plaintiff does discharge that onus, and satisfies the court that a five-year extension should be granted, then the statement of claim that has been filed can be appropriately amended and the proceedings can be considered as properly commenced within the extended time. 20 I note, however, that would still leave open to the defendant to rely on the Limitation Act if it can prove that injury or other damage in fact occurred prior to 20 November 1999 (or perhaps 23 August 1999, the statement of claim having been filed on 23 August 2007). And if the plaintiff does not satisfy the court that an extension should be granted, then the statement of claim would presumably be defeated by a Limitation Act defence. 21 As regards costs, the point on which the defendant has succeeded was not put with ideal clarity below, but in my opinion was sufficiently raised before the Associate Judge and in the grounds of appeal and submissions. In my opinion, the plaintiff should pay the costs of the application for leave and appeal. The Associate Judge ordered the plaintiff to pay the costs of the application before her. As a result of this decision, that application will not now be finally determined so my view is that that costs order should also be set aside but the plaintiff should be ordered to pay the costs of the hearing before the Associate Judge. 22 The orders that I propose are these: (1) Leave to appeal granted. (2) Notice of appeal to be filed within 14 days. (3) Appeal allowed. (4) Orders below set aside. (5) Application remitted to the Common Law Division to be determined in accordance with these reasons. (6) Opponent to pay the claimant's costs of the application and appeal and have a suitor's fund certificate if otherwise eligible. (7) Opponent to pay the costs of the hearing before the Associate Judge. 23 BEAZLEY JA: I agree. 24 GILES JA: I agree. oOo

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