Wrightson v. State of Queensland [2004] QSC 218 (22 June 2004)

11 March 2003 had pleaded inter alia that the plaintiff's claim was statute-barred. It was agreed by the parties that there was no impediment to my determining the limitation question on an interlocutory application.

[2] On behalf of the plaintiff, Mr Fraser conceded that if the plaintiff's application failed, the defendant's should succeed. The argument before me was confined to the issues on the plaintiff's application. It was common ground that at least from 1997 the plaintiff, now thirty-four years old, was continuously ill although his symptoms fluctuated from time to time, and that the limitation period applicable to the plaintiff's claim expired in late 2000.

[3] In an affidavit filed on 18 March 2004 the plaintiff swore: that after attending the Queensland Police Academy he was sworn in as a police officer in November 1990, and that after performing various ordinary police duties at Rockhampton, Manly, and Chandler, he was on active duty as a covert 'operative' from on or about

30 November 1994 until late 1996. After that he took leave for two months, and then from March to late October 1997 he performed general duties as a uniformed officer at the Cabalaba Police Station, and from late 1997 he performed traffic duties while attached to the Chandler Police Station. He suffered from persistent anxiety, sleeplessness, and disturbed sleep with nightmares while performing duties as a covert police operative. He consulted Dr Paul Kamarowski, general practitioner of Cabalaba, in September 1997, and on 12 February 1999 was seen by Dr Alston Unwin, consultant psychiatrist. The plaintiff took sick leave at various times after he had ceased to perform covert duties, and on or about 4 October 2000 he applied for retirement from the Queensland Police Service on medical grounds under s. 8.3 of the Police Service Administration Act 1990. By a letter dated

22 February 2001 from the manager of the Human Resource Management Branch of the Queensland Police Service he was notified that his application was approved, and his retirement took effect on 9 March 2001.

[4] In September 1997 Dr Kamarowski diagnosed the plaintiff as suffering from

post-traumatic stress disorder and prescribed an anti-depressant. Dr Kamarowski did not suggest to the plaintiff that he expected the plaintiff's career in the

Police Service would be limited by his condition, and the plaintiff continued to attend work and perform his police duties. In February 1999 Dr Kamarowski referred the plaintiff to Dr Unwin who diagnosed him as suffering from a major depressive disorder, treated him, and certified that he was unfit for duty for over two months. Dr Unwin informed the plaintiff that with the prescribed anti-depressant medication he should be capable of returning to work. In a letter dated

4 May 1999 to Mr Jerome Paige, claims liability officer of WorkCover Queensland, Dr Unwin reported that the plaintiff, having then returned to his police duties and having shown a good response to medication and psychotherapy, he (Dr Unwin) planned to follow the plaintiff 'on an intermittent basis' and gradually reduce the medication. Dr Unwin expected, he said, 'a full recovery to normal'. From late 1999 to April 2000 the plaintiff's condition deteriorated, however, and from

29 April 2000 he was on leave for eleven months, unfit for duty. In about mid 2000 Dr Unwin advised the plaintiff that he should consider seeking retirement from the Queensland Police Service on the ground of his being medically unfit for duty. The plaintiff explained his state of mind leading up to his making his application in this way:

93. In or about mid 2000 I was advised by my treating practitioner, Dr Unwin that I should consider seeking a medical retirement from the Queensland Police. I was very reluctant to accept this advice as I was still eager to return to my role in the Police Service. However I did realise that my condition was not improving. Over time Dr Unwin convinced me that it was in the interests of my well-being for me to initiate retirement from the Queensland Police Service as medically unfit for duty. I followed the advice of Dr Unwin and on or about 4 October 2000 I signed an application under s8.3 of the Police Service Administration Act (the "QPSA") for retirement on medical grounds from the Queensland Police Service. At the time of signing the application I really had not thought through what this process meant for me and my future. Dr Unwin informed me that I needed to submit the application and I followed his advice as I was eager to get better. Whilst I realized that by submitting the form I was commencing a process which may end my career the consequences to me, if that occurred, were not considered by me at this time. I still felt a commitment to and passion for the job of policing and I hoped that retirement would not be necessary so that I could eventually return to my job.

94. After submitting the form I still was not convinced that I had done the right thing. I had a lot of doubts and questioned whether or not I should have put the process in train or whether I could continue with my police career.

106. Until I learnt from the QPS that I was to be retired on medical grounds I did not give proper consideration to those legal rights and entitlements which I might have had against the QPS arising from my employment with them, as I was unwell and my entire focus was on getting better. I was also a dedicated police officer and I had wanted to remain in the Service. While it was not a matter which I considered at the time, I am sure that if I had sued the QPS that would, for practical purposes bring my career to an end. I would be in the position of having instituted an action against my employer and while I could not be certain how the QPS would react it had to deal with the issue of my fitness to remain a police officer and I am not aware of any serving police officer having sued the QPS for a serious psychiatric disorder. Further, my problems would be a matter of record and if I sued, citing mental illness, my fellow workers would be very uncomfortable about working with me as part of a team.

[5] In Dr Unwin's affidavit filed on 18 March 2004 he gave this account of his assessment of the plaintiff in 2000:

16. The Plaintiff was quite unwell during 2000. The episodes which led him to return to treatment from me in April 2000 were really quite concerning. I had previously advised that he should make a successful return to work and indeed it seemed that for a period he had done so. However, after his return to treatment with me, it became apparent to me that the Plaintiff ought not in his own interests remain as a police officer. He was, medically speaking, seriously compromised. He had had suicidal thoughts and his disorder involved elements of paranoid ideation and features of post traumatic stress disorder ("PTSD"). The symptoms referable to the features of PTSD included violence related elements - his killing people and being killed and violent confrontations. By the latter part of 2000, his prescribed medication, Prothiaden, of 4 tablets of 75 mg each day had been increased to quite a high level and would itself interfere with his ability to process material. In advising him that he ought initiate retirement from the police service I was concerned to ensure his well-being and to promote reduction in the stressors he was exposed to in his work.

17. The Plaintiff is of particular type of character who seeks to be a perfectionist. The Plaintiff has and demands of himself, very high standards so that he can control what is happening from his own perspective. When I saw the Plaintiff in the latter part of 2000, he was decompensating, as part of his very complex psychiatric condition. I diagnosed that the Plaintiff had a major depressive disorder. At times some features of this disorder become more prominent and at other times they wane. Part of his disorder involved paranoid ideation at times and he exhibited obsessive compulsive behaviour. His symptoms of post traumatic features fell short of a clinical diagnosis of PTSD. When patients are suffering from a disorder like the Plaintiff's disorder, they respond very adversely to stress and the paranoid ideation in combination with elements of violent confrontation was very concerning to me.

18. Although retirement from the Police Service was also a decision involving stress, in large part, it was a decision out of the Plaintiff's hands and was in my opinion the only option open to him. In approaching the treatment of the Plaintiff's condition it was necessary in order to improve his well being, to take it in stages. Firstly, to treat the Plaintiff for his symptoms. Secondly to initiate his removal from the Police Service. Thirdly to lead the Plaintiff to acceptance of his loss of police career and closure and then to look to the future as to his other interests.

19. It was difficult to gradually bring the Plaintiff to acceptance of his need to retire from the Police Service and the loss of his police career. He was also stressed about the process itself and concerned about the outcome of what he had put in train. This was to be expected, given the condition he was in. My approach to the Plaintiff was predicated upon the need to ensure that he survived first and then later on he could start to address issues involving his future quality of life. This approach to addressing patients who have difficulty in the workplace is, in my experience and opinion, the usual approach which is taken to help patients get better.

20. This also appears to be the approach which was taken by Ms Barker and Ms Cochrane in their treatment of the Plaintiff as appears from their reports.

21. For the Plaintiff, it was necessary to approach improvement of his condition then address the stresses involved in his work situation by retirement and achieve closure by a resolution of that process. Thereafter, the treatment could move to canvassing with him future options.

22. I have been asked to comment about the ability of the Plaintiff to contemplate and instruct the institution of legal proceedings in relation to his condition during the latter part of 2000 and the desirability of his doing so.

23. While I am of the view that the Plaintiff was legally competent in that he could have given instructions to institute proceedings and they would be acceptable in the sense of being binding upon him, when I saw him during 2000, in my opinion, that issue would, in terms of treating the Plaintiff, be something that should not be addressed by him until he had received some closure from his employment with the Police Force. In my experience there are a number of stressors involved for patients in approaching retirement from a position they have held for some time. Not only is there the unknown of a major lifestyle change, but when patients have disorders of the kind that the Plaintiff has, there are processes which necessarily entail reliving and relating the stressful life events which have lead to the development of the condition. This is in itself very stressful for such patients. In my opinion, it would be very much against the interests of the Plaintiff to consider and engage in the process of instituting legal proceedings at that time in relation to the same concerns. He certainly would not be able to acquit himself efficiently if required to give attention to those matters and his recovery would be further set back and he would run a risk of even more serious ill health in future.

24. For these reasons, in my opinion both Ms Barker and Ms Cochrane adopted the correct approach in their sequence of treatment. It would have been unwise and detrimental to the Plaintiff to approach the matter in any other way.

[6] The plaintiff was examined by other psychologists and doctors in connexion with his sick leave and his application for retirement (Dr Frank Walsh clinical psychologist, Ms Anita Cochrane psychologist, Dr Gary Larder consultant psychiatrist, Dr Thomas Bell consultant physician in psychiatry, and

Ms Jane Barker, psychologist and rehabilitation consultant), but his principal advisers were Drs Kamarowski and Unwin - the latter in particular.

[7] Section 31 of the Limitation of Actions Act is as follows:

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court--

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired--

(b) before an application is made under this section in respect of the right of action.

Section 30 is an interpretation section which applies to s.31:

(1) For the purposes of this section and sections 31, 32, 33 and 34-

(a) the material facts relating to a right of action include the following-

(i) the fact of the occurrence of negligence, trespass, nuisance

or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing-

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if-

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.

'appropriate advice', in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

[8] It is not in issue that the requirement of s. 31(2)(b) of the Limitation of Actions Act has been satisfied in this case, the issue for my determination being whether the requirement of s. 31(2)(a) has been satisfied; and the issue concerning the latter provision turned on the application of s. 30(1)(b)(ii), since it may be accepted the requirement of s. 30(1)(b)(i) had been satisfied by early October 2000. A material fact is of a decisive character only if a reasonable person knowing the fact and having taken the appropriate advice on the facts would regard the fact as showing that the applicant under s. 31 ought, in his own interests and taking his circumstances into account, to bring an action on the right of action. The provision focusses not on the applicant's state of mind (i.e., inadvertence, carelessness, or perhaps deliberate failure to institute proceedings) but upon a reasonable person's assessment of the applicant's interests and circumstances. So in this case the question came down to this: would a reasonable person knowing the material facts relating to the plaintiff's right of action, having taken appropriate advice on those facts, have regarded those facts as showing that the plaintiff ought, in his own interests and taking his circumstances into account, to have brought an action on the right of action on or before 20 December 2000, or would the reasonable person have concluded that that time did not arise until after 20 December 2000? The question may be put another way: when did the one-year period provided for in s. 31(2) begin to run? On behalf of the plaintiff early 2001 was contended for, and on behalf of the defendant no later than October 2000.

[9] The plaintiff was, as was conceded on his behalf, 'possessed of the relevant material fact' soon after his 'breakdown' in April 2000 and clearly enough there was sufficient to show that by 4 October 2000 that the plaintiff had, if his case was accepted, a right of action against the defendant: he had been told by his treating psychiatrist that he could not continue to work as a police officer, and he had applied for retirement. It may be accepted that a very large majority of such applications are successful. If that were all to the plaintiff's circumstances he would fail on his application. But it is not all. In the first place, there was the possibility - admittedly faint - that he might be able to continue his police career. Secondly, his application might not have succeeded, and if it had failed his progress in the police service would, one could reasonably conclude, be jeopardized by his seeking retirement on the ground of a mental disorder: even if his case were treated with the utmost sympathy, the history of his mental fragility might deter those assigning duties to give him work in which his mental state might put him and others at risk. Thirdly - and this was the point relied on heavily on his behalf - the pressure of instituting proceedings against an employer from whose employment he had not been released, in addition to that arising from his reluctantly-made decision to apply for retirement, could have caused a further deterioration in his mental health.

[10] The plaintiff's case on this application was then that it was only when his application was granted that all of the requirements of a material fact of a decisive character had been satisfied. As Mahoney J.A. said in Royal North Shore Hospital v. Henderson (1986) 7 N.S.W.L.R. 283 of s. 57(1)(c)(ii) of Limitation Act 1969 (N.S.W.), which was in terms not materially different from that of our

s. 30(1)(b)(ii), 'In a sense, its purpose is to provide considerations justifying delay in bringing an action' (p. 300). It means that even if a claimant could have instituted a claim earlier than the time when a reasonable person would have regarded the facts as showing that he ought to do so, it is only when the reasonable person would regard the facts as showing that he ought to do so that time begins to run under s. 31(2). In this case I accept the argument advanced for the plaintiff that that date was when the plaintiff's application was granted: a reasonable person would have concluded that it was only then that the plaintiff ought to have brought his claim, and that until then he was justified in delaying the institution of his proceeding for the three reasons to which I have referred, but chiefly because of the possible detrimental effect on his health in doing so earlier.

[11] It follows that the requirements of paragraphs (a) and (b) of s. 31(2) Limitation of Actions Act have been satisfied in this case. It is therefore open to me to grant the application unless it can be shown that the application should be refused on discretionary grounds. No such grounds were advanced on behalf of the defendant, and accordingly the plaintiff will have the relief he seeks.

[12] I shall invite further submissions on the form of the orders to be made and costs.