DECISION
26 Dealing first with the Notice of Contention, in my opinion error is not shown in the primary judge's findings as to satisfaction of s.60I. In my opinion, a conclusion that the claimant was unaware that her psychological concerns amounted to a significant psychiatric injury until about July 2001, and was unaware of the connection between that injury and the defendant's act or omission until about March 2003, was amply supported by the evidence. It was also necessary for the claimant to show that her application for extension (made on 29 March 2004) was made within three years after she ought to have become aware of these matters; and although the primary judge did not address this explicitly, it was implicit in his judgment, and amply supported by the evidence, that this requirement also was satisfied - that is, that it was not the case that the claimant ought to have become aware of these matters prior to 29 March 2001.
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 par [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.
31 Turning to the question whether error by the primary judge has been shown, in my opinion, where the substance of the case was a systems case, it was an error simply to say that, because the particulars could allow a wider case, the case should be treated as a wider case. In my opinion, the primary judge should at least have addressed the question whether an approach such as that taken in Brennan was available.
32 In my opinion also, the case of Donnelly was a very different case. Although in one sense it might be thought to be a simpler case, because there was only one traumatic incident, not more than 600, it was in reality more complex, because the case was not limited to the lack of or deficiencies in a system for monitoring or counselling, but extended to complaints about a wide range of contributions to the officer's psychological state caused by his treatment by other officers. That is shown by pars.[53] and [54] of the judgment, quoted by the primary judge. I do not think it was accurate to say that the matters alleged in Donnelly were "not dissimilar to" most of the matters alleged in this case.
33 In my opinion, in combination these matters do amount to error justifying re-exercise of the discretion in this case.
34 Another matter relevant to the exercise of discretion is the extent of the extension required. A cause of action in tort arises only when damage first occurs. If damage first occurred in this case after 25 July 2000, then the action is wholly within the limitation period. On the material available at present, it is arguable that there was no psychiatric injury before this time, and that there was no actionable damage and accordingly no cause of action in tort before this time. On the other hand, if it be the case that injury first occurred when symptoms first occurred, that is in late 1998 or early 1999, then the proceedings could have been commenced within the limitation period in late 2001 or early 2002; and in that event, the extension required is about 18 months for an action in tort. The extension required for an action in contract would of course be greater, and would be different in respect of breaches occurring at different times (some, presumably, as long ago as 1990).
35 In my opinion, the following matters justify a resolution of this application in favour of the claimant:
(a) the difficult and unrewarding issues that would otherwise arise as to when the claimant's cause of action in tort arose;
(b) the loss of the claimant's case otherwise than on the merits, if those issues are decided against her;
(c) the relatively short extension of time required for an action in tort, in order that these issues not arise;
(d) the limited prejudice to the opponent, provided the issues are limited to those specified in par.[28]; and
(e) my view that, provided the issues are so limited, there could be an acceptably fair trial.
36 Accordingly, in my opinion, leave to appeal should be granted and the appeal should be allowed. The claimant should have an extension of the limitation period to commence an action in tort, limited to the issues set out in par.[28]. The costs order below should not be disturbed, as the claimant was seeking an indulgence and the opposition to it was not unreasonable. However, in my opinion the costs of the appeal should follow the event.