Wood v State of NSW

CATCHWORDS : LIMITATION OF ACTIONS - extension of time - torts - where no prejudice would be suffered if extension granted - ss60C 60E Limitation Act 1969 (NSW) - whether all subparagraphs of s60E(1) must be satisfied when determining what is 'just and reasonable' in s60C(2) LEGISLATION CITED : Limitation Act 1969 (NSW). CASES CITED : Deodousis v The Water Board (1994) 181 CLR 171 State of NSW v Seedsman [2000] NSWCA 119 PARTIES : Brendan Wood State of New South Wales FILE NUMBER(S) : CA 40639/03 COUNSEL : Cl: Anna Katzmann SC / E Romaniuk Opp: D Ronzani SOLICITORS : Cl: Oates & Smith, Sydney Opp: Crown Solicitor's Office - L Tretheway, Sydney

LOWER COURT District Court JURISDICTION : LOWER COURT DC 7404/01 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40639/03 DC 7404/01

HANDLEY JA BEAZLEY JA TOBIAS JA

Friday 23 April 2004 BRENDAN WOOD v STATE OF NEW SOUTH WALES Judgment 1 HANDLEY JA: I agree with Tobias JA. 2 BEAZLEY JA: I agree with Tobias JA. 3 TOBIAS JA: By notice of motion filed in the District Court on 26 October 2001, Mr Brendan Wood (the claimant), a former member of the New South Wales Police Service (the Service), sought an order pursuant to the provisions of Division 3 of Part 3 of the Limitation Act 1969 (the Act) for an extension of time within which to commence proceedings against his former employer, the State of New South Wales (the opponent). Acting Judge Gamble heard the motion on 4 July 2003 and dismissed the application. The claimant seeks leave to appeal against that decision. The substantive appeal was heard concurrently with the application for leave. At the end of oral argument, the Court granted leave to appeal and reserved its decision on the appeal itself.

The relevant facts 4 The claimant commenced service with the New South Wales Police Service in January 1988. He was medically discharged from the Service on 3 February 1998 with the rank of Constable First Class. The basis of his discharge was post-traumatic stress disorder (PTSD) and depression sustained as a consequence of the work he was required to perform which, from early 1991, involved investigations of mistreatment of children as a member of the Child Mistreatment Unit stationed at Campbelltown. 5 The claimant's case was that although the symptoms associated with his PTSD first became apparent to him in September 1994, he was not diagnosed as suffering from PTSD until 9 September 1996 when he saw a police psychologist, Mr Les Langmead, who recommended weekly counselling and psychiatric referral. 6 On 17 September 1996, the claimant applied for "Hurt on Duty" benefits identifying several traumatic incidents encountered during his police service as being the cause of his nervous disorder. The last time he performed unrestricted duties in the Service was on 10 October 1996; after that date he continued on restricted duties. 7 On 3 December 1996, Dr J R Strum, forensic psychiatrist, saw the claimant. Dr Strum reported his findings to the Service on 13 January 1997. It was on that date that the primary judge found that the claimant's cause of action accrued. As a consequence, the limitation period of three years expired on 13 January 2000: see s 18A of the Act. 8 On 28 February 1997, the claimant ceased work. On 26 September 1997, he applied for a medical discharge which, as I have noted, was granted on 3 February 1998. 9 In January 1999, an article appeared in Police News concerning what was referred to in the evidence before the primary judge as the Seedsman case. The claimant read the article. It referred to the Police Association having provided legal assistance to the former Senior Constable Beth Seedsman in an action against the Police Service for post-traumatic stress. She had successfully sued the Service for its failure to provide a safe system of work. As a result of the Service's failure to properly train, supervise and manager her working environment, she had sustained injury. 10 Of particular importance was that Ms Seedsman had been a member of the Child Mistreatment Unit stationed at Bankstown from 1983 until 1987. In 1994 she began to notice physical symptoms that were later diagnosed as PTSD. That diagnosis formed the foundation of her claim for compensation, she having been discharged from the Service on medical grounds in 1997. The article recited the various findings of the judge who heard the case including the particular stresses involved in the work of the Child Mistreatment Unit. It recorded that the judge had found that the State of New South Wales had a duty to prevent the risk of psychiatric disorders in police involved in the investigation of child abuse; that that risk was foreseeable and that its failure to provide appropriate support and counselling, as well as training of the members of the Unit to enable them to deal with the particular stresses associated with their work, constituted a breach of its duty of care to its members. In particular, the article stated that: "The judge found that Ms Seedsman now suffered from Post Traumatic Stress Disorder as a result of the negligence of the NSW Police Service's failure to provide a safe system of work for her when she was dealing with crimes against children." 11 On reading the article, the claimant identified with Ms Seedsman. In June 1999, he telephoned a solicitor, Ms Smith (who had represented Ms Seedsman), seeking advice with respect to, inter alia, the availability of a common law claim against the Service. He also sought financial assistance from the Police Association to fund the obtaining of advice but this was declined in July 1999. 12 According to Ms Smith, on 21 June 1999 she provided him with "general advice about common law actions". Details of that advice were not further explored before the primary judge. However, Ms Smith was obviously aware of the decision of Goldring DCJ in the case of Seedsman v State of New South Wales which had been decided on 22 October 1998 and which was the subject of the article in Police News. She was also aware that the State had appealed his Honour's decision. That being so, until the appeal was determined, she was not in a position to advise the claimant that he should proceed with a Seedsman-type claim. On 12 May 2000 this Court dismissed the State's claim: see State of NSW v Seedsman [2000] NSWCA 119. However, by that time the limitation period had expired. 13 In May 2000, Ms Smith requested the claimant's hospital, medical and rehabilitation file from the Service pursuant to the Freedom of Information Act and, on 13 July 2000, drafted a brief to counsel to advise on the merits of a common law action. On the same day, she also made an appointment for the claimant to attend Dr Murray Wright, Consultant Psychiatrist. 14 On 16 October 2000, the claimant attended upon Ms Smith. According to the claimant, that was the first time that he was told there was a limitation period in which he could commence proceedings against the Service. It was also the first time that Ms Smith advised him that he might have a claim against the State based on the Seedsman case. In cross-examination Ms Smith said that she did not consult with the claimant in any meaningful way until 16 October 2000 although she had received letters from him. Her difficulty was that when the Seedsman judgment at first instance was delivered in 1998, she was inundated with police officers who thought they had Seedsman-type claims. 15 The claimant saw Dr Wright on 18 October 2000. Dr Wright prepared a report dated 20 October 2000, which he sent to Ms Smith. He took a history from the claimant which included the following: "Mr Wood told me that he could not recall ever receiving any educational input regarding the likely psychological consequences of repeated exposure to trauma or any recommendations about the need to monitor psychological wellbeing or consider debriefing after exposure to major incidents. He told me that he never attended any formal debriefings…He told me that he was not aware of any monitoring of his or others psychological wellbeing and of no formal debriefings following significants incidents." 16 Dr Wright concluded that the claimant had suffered from PTSD arising from his exposure to a number of traumatic incidents in the course of his work as a police officer in the Child Mistreatment Unit. After remarking upon the impact which the symptoms were having upon the claimant's employment prospects and domestic and social relationships, he concluded in these terms: "It would have been my advice to Mr Wood's employer that he should receive training as to the psychological consequences of repeated exposure to severe trauma, and also been advised as to the availability of counselling and treatment in relation to these psychological symptoms, and that his employer should have monitored his well-being and made formal and informal debriefing available following exposure to any traumatic incident. My advice to his employer would have been that these strategies would allow early detection of adverse psychological consequences and would therefore reduce the impact of such consequences and allow early intervention. It is my opinion that Mr Wood's lack of awareness as to the possible psychological consequences of exposure to traumatic incidents caused his condition to deteriorate significantly before help was made available." 17 The relevance of the above citation from Dr Wright's report is that the claimant maintained that it was only upon his first reading of the report on 13 February 2001 that he became aware of the omissions of the Service and the connection between them and his PTSD. 18 According to Ms Smith's evidence, she wrote to the claimant on 8 March 2001 informing him for the first time that he had reasonable prospects of success in an action against the opponent. On the same day, she wrote to the opponent's solicitor enclosing a draft Statement of Claim which, she said, was in the process of being filed and served and invited those solicitors to indicate whether they would raise a limitation defence. 19 On 16 March 2001, the claimant responded to the letter of 8 March 2001 by email, which was followed up on 24 April 2001 by a telephone conversation between the claimant and his solicitor. Ms Smith again wrote to the claimant on 21 May 2001. The claimant did not receive that letter as he had moved house and it was therefore incorrectly addressed. It may be noted that neither the letter of 8 March 2001, the email of 16 March 2001 nor the letter of 21 May 2001 were tendered in evidence. On 23 May 2001 Ms Smith sought further advice from counsel but it was not until some time between 21 May 2001 and 16 July 2001 that she became aware that the claimant had not received the letter of 21 May 2001. 20 Accordingly, on 16 July 2001, Ms Smith sought further instructions from the claimant and sent him a copy of the letter of 21 May 2001. She promptly received instructions to commence proceedings as a consequence whereof a statement of claim was filed and served on 20 July 2001. 21 As a result of the opponent's solicitor advising Ms Smith that the opponent would raise a limitation defence, the notice of motion seeking an extension of time was filed on 26 October 2001.

The decision of the primary judge 22 As I have already observed, the primary judge found that the latest date of the accrual of the claimant's cause of action against the opponent was January 1997 with the consequence that the limitation period expired in January 2000. The statement of claim was not filed for a further 18 months and, the notice of motion for an extension of time not filed for a further three months. 23 As a consequence of the claimant's cause of action accruing after 1 September 1990, the relevant provisions of the Act applicable to the claimant's application for extension of time were ss 60C(2) and 60E(1). It is appropriate to set out those sections at this point. "60C … (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. … 60E … (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: (a) the length of and reasons for the delay, (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. …" 24 Having held that the claimant's cause of action accrued in January 1997, and that proceedings should therefore have been commenced by January 2000, her Honour said: "Section 60C(2) permits extension for a maximum of 5 years from that date, on satisfaction of the eight matters listed in section 60E." 25 It was submitted that the above sentence from her Honour's judgment revealed error in that s 60C(2) did not, before it was invoked, require that the Court be satisfied of all the eight matters listed in s 60E(1) but, on the contrary, merely required the court, when exercising its powers under s 60C, to have regard to such of those eight matters as were relevant to the circumstances of the case. I shall return to this submission later in these reasons. 26 The primary judge then said that there were two periods of delay that required consideration. The first was from September 1994, when the claimant first became aware of his symptoms, to January 1997, when he first became aware of the nature of his condition as a consequence of Dr Strum's diagnosis. The second was from January 1997 when his cause of action accrued, to July 2001 when the Statement of Claim was filed. 27 The claimant maintained that it was not until February 2001, when he read Dr Wright's report of 20 October 2000, that he realised the nature and extent of his injuries and/or the connection between those injuries and the Service's acts and omissions. It was the combination of Dr Wright's report, and the outcome of the Seedsman appeal that, according to her Honour's understanding of the claimant's evidence, made him aware of the connection between his injuries and the acts or omissions of the Service "as required by section 60E(d) and (e)". 28 The primary judge accepted that the claimant did not understand the nature of his injuries until Dr Strum's diagnosis in January 1997. However, she found that he was aware not only of the nature of those injuries but also of their extent by March 1998 when he was medically discharged from the Service. That finding was not challenged before us. 29 After referring to various parts of Dr Wright's report her Honour made the following finding: "I believe he was aware of the connection between those injuries and the circumstances of his employment, in the terms required by Deodousis . He was aware of the acts and omissions of the Service likely to be alleged as particulars in a claim for negligence, although he may not have understood the possible legal conclusions to be drawn from those facts."

The last part of the above statement was no doubt intended to reflect what the High Court said in Deodousis v The Water Board (1994) 181 CLR 171, 181 when the Court said: "It is true that s 60I(1)(a)(iii) [of the Limitation Act ] is concerned with ignorance of the existence of acts and omissions rather than legal conclusions." 30 After making further reference to Dr Wright's report and, in particular, to that part of the history provided by the claimant to Dr Wright which I have extracted in [15] above, her Honour continued: "In his report in support of the application for medical discharge in September 1997, Mr Wood shows himself to well understand the connection between his work as a police officer and his disorder."

She went on: "Mr Wood's claim that he was unaware of the connection between his injuries and the Service's conduct until October 2000 ignores the fact that the event that provoked his interest in the matter was the article about the Seedsman case in the Police Association Newsletter of May 1999. He says he waited until the Association rejected his application for financial support before approaching Ms Smith for advice on the common law claim made in Seedsman, yet he was consulting Ms Smith on other matters at the same time and had received several letters from her giving general information about common law claims. … Ms Smith says that she could not have advised him until the Court of Appeal judgment was handed down in May 2000. Even if Mr Wood's claim that he was unaware of the connection between his injuries and the Service's acts and omissions until October 2000 is accepted, there remains to be explained the delay between that date and the filing of the statement of claim in July 2001…He did not receive any advice from Ms Smith until March 2001. Mr Woods said in cross-examination, in explanation of the delay between May 1999 - October 2000, 'she never really got interested until I paid the money'. He could not remember, but he thought the Association did not reject his application for assistance until shortly before October 2000. Ms Smith agreed that the delay probably related to the outstanding application for financial assistance. Mr Wood then made a decision to fund the matter himself but this evidence does not coincide with Ms Smith's memory that she drafted a brief to counsel to advise on the merits of a common law action on 13 July 2000. " 31 The primary judge then asserted that there was "evidence of communication difficulties between Ms Smith and Mr Wood between 8 July 2001 - July 2001."

The difficulties referred to were then identified by her Honour as the letter of advice from Ms Smith to the claimant of 8 March 2001, his reply by email on 16 March 2001 followed by the phone call on 24 April 2001. Reference was also made to Ms Smith's letter of 21 May 2001, which the claimant did not receive. Communication was re-established, according to her Honour, by phone prior to 16 July 2001, when the letter of 21 May 2001 was resent. It is apparent that that letter sought instructions from the claimant to file and serve the Statement of Claim. Those instructions were then forthcoming and the Statement of Claim duly filed. Her Honour seemed to accept that the delay between the initial brief for counsel's advice of July 2000 and the filing of the Statement of Claim a year later was, as Ms Smith said, due to her heavy workload following the handing down of the Court of Appeal's judgment in Seedsman . 32 After referring to those cases in which it has been held that when evaluating what is "just and reasonable" within the meaning of s 60C(2), the court cannot leave out of account the lay client's expectation that the institution of legal proceedings will be slow as well as the client's reliance upon his solicitors, her Honour continued in these terms: "My understanding of the evidence in this matter is that Mr Wood was not totally dependent on Ms Smith to progress his cause of action. On the evidence of both of them I have no understanding that Ms Smith was responsible for any undue delay in the preparation of the matter. Rather, Mr Wood has left unexplained his failure to pursue the matter from May 1999."

Counsel were unable to identify the evidence to which her Honour was referring in this passage. 33 Her Honour then referred to the following evidence: that the claimant had consulted Ms Smith from at least June 1999 regarding various matters including possible causes of action against the Service having read of the participation of Ms Smith's firm in the Seedsman case; that he had sought financial assistance from the Police Association which was rejected in July 1999 and he then had to decide whether or not to fund any potential proceedings himself; that Ms Smith had received the Court of Appeal's judgment in Seedsman in May 2000 and had soon after drafted a brief to advise to counsel in July 2000; that Ms Smith then waited three months for Mr Smith to consult her in October 2000; that she had provided him a letter of advice in March 2001. She then said this: "He had been made aware of the possibility of making a common law claim in correspondence with Ms Smith in June 1999 and of the limitation issue. He gave no explanation for his failure to respond to Ms Smith's letter of advice of March 2001, and did not attempt to explain why he did not received the letter of 21 May." 34 Counsel for the opponent accepted that there was no evidentiary basis for the above findings. Her Honour then concluded: "This all appears to add up to indecision and inattention on Mr Wood's part and does not provide an adequate explanation of the delay as required by s 60E(1)(a). … After considering all the matters before me I have come to the conclusion that it is not just and reasonable to grant the extension of time Mr Wood's seeks under section 60G. For the reasons given above, he has not satisfied me that circumstances exist under s 60E to grant the extension of time. In particular, I am not satisfied in respect of the matters raised in section 60E(1)(a), (d) and (e)." 35 Her Honour then considered the matter referred to in s 60E(1)(b), being prejudiced to the opponent, and said: "The Police Service points out that in this case Mr Wood has the onus of showing that a fair trial can be held. He has been legally represented for many years, and I have held above that he has been aware of the possibility of taking common law proceedings for many years as well. I do not believe he has discharged the onus on him to show that an extension of time should be granted and I have held that he is largely responsible for the delay. In these circumstances I do not believe that it is just and reasonable to grant the extension of time." 36 There was no evidence filed on behalf of the opponent of actual prejudice. However, her Honour considered that it was inevitable that over the period to July 2001 there would be prejudice to the Police Service because of "changes in personnel and loss of corporate memory". She then found that: "Unlike Mr Wood it [the Service] has not had the opportunity to keep continuous records of events between 1994-2003. This is one of the reasons behind the limitations legislation and in the absence of better evidence from Mr Wood, the provisions of the Limitation Act should apply to protect it." 37 This last finding of her Honour was also accepted as being factually wrong. A chronology of the records maintained by the Police Service from 1994 to February 2003 and the records themselves which were tendered before the primary judge and which she apparently overlooked makes that clear.

The submissions of the parties 38 The claimant submitted that the primary judge's reasons for judgment disclosed a number of significant errors. In particular, as I have observed at [25] above, it was submitted that her Honour had applied the wrong test. She had considered that it would not be just and reasonable to extend the limitation period pursuant to s 60C(2) unless the claimant had satisfied each of the eight matters referred to in s 60E(1). Her Honour was not so satisfied as she did not consider that the claimant had provided an adequate explanation of the delay "as required by section 60E(1)(a)" and that she was not satisfied "in respect of the matters raised in section 60E(1)(a), (d) and (e)". Finally, it is clear that she was not "satisfied" that the opponent would not be prejudiced within the meaning of s 60E(1)(b) although the factual basis of that finding was contrary to the evidence. 39 In my opinion, this primary submission of the claimant should be accepted. It is clear from a reading of her Honour's judgment that she regarded each of the eight matters listed in s 60E(1) of the Act as gateways that needed to be satisfied before she could find that it was just and reasonable within the meaning of s 60C(2) to extend the limitation period. In this she erred. The opening words of s 60E(1) makes it clear that the matters so listed are not gateways but are, to the extent to which they are relevant to the circumstances of the case, merely matters to which the Court is required to have regard in determining whether, in all the circumstances, it is just and reasonable that the limitation period be extended. 40 It is possible that her Honour confused s 60E(1) with s 60I(1) which does set up gateways which must be negotiated before an order can be made under s 60G. As she herself recognised, there is some overlap between the matters identified in both provisions. 41 In my opinion, her Honour's approach to the discretion, which she was required to exercise, was based upon a fundamental misinterpretation of the relevant statutory provisions. Accordingly, her discretion miscarried and her decision must be set aside. 42 Although it was submitted that the primary judge conflated the relationship between the claimant's injuries and his work on the one hand and those injuries and the opponent's acts or omission on the other, it is probable that she did understand the difference and that she did purport to make findings as to when the claimant became aware of a connection between his injuries and those acts or omissions: see [20] above. Although the claimant maintained that it was not until he read Dr Wright's report in October 2000 that he made this connection, her Honour was of the view that he made it when he read the Police Association's newsletter concerning the Seedsman case in May 1999. 43 However, it was submitted that such a connection could not have been made by the claimant except on the basis of the opinion of an expert which tied the relevant acts or omissions of the employer to the particular injury sustained by the particular employee. It was submitted that the Police Association article dealt with a different employee whereas the report of Dr Wright dealt with the claimant and the relationship of his particular injuries to the failures of the Service, which he identified in the passage from his report extracted in [16] above. 44 Although as a general proposition the claimant's submission is correct, I do not consider that it necessarily applies to every case. Both the claimant and Ms Seedsman were suffering from PTSD as a result of the traumatic aspects of the work that each had experienced in a Child Mistreatment Unit. The claimant appreciated the similarities between Ms Seedsman's case and his own and it was for that reason that he sought legal advice from the solicitors who had acted for Ms Seedsman in that matter. In these circumstances, I am not satisfied that the primary judge erred in finding that the claimant became aware of a connection between his injury and the relevant omissions of the opponent when he read the Police Association article. However, it is unnecessary to express a concluded view on that matter. 45 The claimant also submitted that the primary judge had mistaken the facts in a number of respects to which I have already referred and with which I agree. Those mistakes played an appreciable part in the primary judge's ultimate finding that the claimant had not provided an adequate explanation for the delay in not instituting proceedings until July 2001. In my opinion, those errors of fact underpinned the basis upon which her Honour determined to refuse an extension of time. Accordingly, for this additional reason, her exercise of the discretion reposed in her by s 60C(2) miscarried. It follows that this Court must re-exercise that discretion.

Re-exercise of the discretion 46 The re-exercise of the Court's discretion under s 60C(2) has been made easier by the fact that counsel for the opponent conceded that, if the primary judge's decision was set aside for error, he could not resist that discretion being exercised by this Court in favour of the claimant. This concession was, in light of the evidence which I have extracted above, properly made and, in fact, inevitable. In my opinion it is clear from the evidence outlined above that the claimant has adequately explained the 18 month delay which occurred between the time the limitation period expired and the time the Statement of Claim was filed. Furthermore, having had regard to matters set forth in sub-paragraphs (b), (c), (d), (e), (g) and (h) of s 60E(1), I would be independently satisfied that it was just and reasonable that the limitation period for the cause of action upon which the claimant wishes to sue should be extended.

Conclusion 47 In my opinion, the following orders should be made:

(b) Set aside the order of Acting Judge Gamble made on 4 July 2003 except as to costs;

(c) Order that the time to commence proceedings against the opponent be extended up to and including 20 July 2001;

(d) Order that the opponent pay the claimant's costs of the summons for leave to appeal and of the appeal.

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