Cavanagh v State of New South Wales

[2008] NSWSC 391

CITATION:	Cavanagh v State of New South Wales [2008] NSWSC 391
HEARING DATE(S):	17 April 2008
JUDGMENT DATE :	2 May 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
DECISION:	Application dismissed
CATCHWORDS:	LIMITATION OF ACTIONS - Application to extend time - Not just and reasonable to order where viable case not demonstrated - Uncontested evidence of appropriate treatment received by employee in respect of injury from foreseeable risk - That arrangement for treatment made by employee does not thereby found cause of action in negligence
LEGISLATION CITED:	Limitation Act 1969
CATEGORY:	Procedural and other rulings
PARTIES:	Christopher Edwin CAVANAGH - Plaintiff State of New South Wales - Defendant
FILE NUMBER(S):	SC 20430/2004
COUNSEL:	K Andrews with M Tanevski - Plaintiff C F Hodgson - Defendant
SOLICITORS:	Adams & Partners - Plaintiff Hicksons- Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 2 May 2008

20430/2004 CHRISTOPHER EDWIN CAVANAGH v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: By statement of claim filed on 2 December 2004 the plaintiff sought damages to be paid to him by the defendant. An amended pleading was filed on 21 September 2007 and it is to that document that reference is made. It specifies the employment of the plaintiff by the defendant as a police officer between 1974 and 1994. From 1982 he was a member of the police rescue squad stationed at Marrickville. There are particularized multiple experiences undergone by the plaintiff which were “traumatic and/or life threatening events”. The earliest in time is located on 18 January 1977 when he attended the scene of the notorious Granville railway accident. At the time he was not a member of the rescue squad and it would appear that he was then a highway patrol officer. All other particularized incidents occurred during his membership of the rescue squad. The final incident occurred on 1 August 1992 at Town Hall Railway Station. Detail of this will be later discussed. A report by a police surgeon (Dr Sharp) noted that the plaintiff last in fact worked on 20 August 1992. He was formally discharged from service on medical grounds in 1994.

2 The pleading frames a cause of action based upon the negligence of the defendant, which is asserted in terms of some 19 particulars. These are prolix and, to an extent, repetitive but in essence they incant alleged omissions by the defendant to identify a risk of psychological injury to the plaintiff as a result of his exposure to the traumatic events and the failure to provide him with appropriate treatment whereby the risk materialized into his developing a condition of post traumatic stress disorder.

3 The commencement of proceedings was well after the expiry of the applicable limitation period and there is before the Court for determination a motion for extension of time in accordance with the Limitation Act 1969. Unreferenced section numbers are to that statute. The motion expressly seeks the exercise of power vested in s 60G(2). Relevant provisions are as follows:

“ Ordinary action (including surviving action)
60G (1) This section applies to a cause of action that accrues on or after 1 September 1990, 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 for an order under this section 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 as it determines.
…
Matters to be considered by court
60I (1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that person injury had been suffered; or
(ii) was unaware of the nature or extent of personal injury suffered; or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii).
(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.”

4 By operation of a provision in a schedule to the Act, the power may also be exercised in relation to causes of action which accrued before 1 September 1990.

5 In a document entitled “Evidentiary Statement of the Plaintiff” dated 20 May 2007 there appear details of the traumatic events particularized in the pleading. I readily accept the opinion of Dr Strum, a psychiatrist who saw the plaintiff at the request of the employer, that the plaintiff “had dealt with many situations which were tremendous and horrendous, even by the standards of normal police work”. It was not suggested that the plaintiff does not truly suffer from the diagnosed post traumatic stress disorder.

6 However, no complaint of symptoms is recorded in the document until after the critical event on 1 August 1992. The detail of that text is:

“1 August 1992. Man fell into garbage shredding machine at Town Hall Railway Station. Upon arrival observed within a small room a garbage shredding machine used to shred the garbage from the Otto bins, underneath was a skip bin used to collect the shredded material. Apparently the operator of this machine, a Railway employee had climbed into the top of the shoot (sic) with the machine running and he has slipped falling into the cutting augers (sic). His whole body went through the machine apparently feet first, as people outside the room said they could hear terrifying screams coming from the room. Upon examination of the skip bin revealed a large amount of body remains, and within and under the machine there were intestines, muscle, flesh, skin and hair entangled and hanging from the cutting auger. After scientific police completed their task, photos and a video were taken of the scene, the arduous task of sifting through and remove all human remains from the skip bin and laying them out on a body sheet hoping to find evidence or identification. We found a damaged wallet, a mutilated hand with some fingers, lower jaw with tongue still attached and the heel of a boot. The next arduous task was to remove all human remains from the cutting augers, this task was performed with Senior Constable Wade at the top and myself under the auger. We were using surgeon’s scalpels to cut away the remains and pull them through. At one stage a piece of bloodied internal body part fell into my mouth. I started dry reaching (sic) and coughing and eventually managed to spit up the body part. Once all human remains were removed from the bin and auger areas they were placed into plastic bags, and the area hosed down and left clean. Recovery of human remains took in excess of 3.5 hours.
The last incident on 1 August 1992 was really terrible for me. I was very concerned that I could have contracted Hepatitis C or Aids as a result of coming into contact with the human remains at Town Hall Station. On 5 August 1992 I contacted the Coroners office re blood tests made of body remains. Told to contact Dr Schwartz who performed post mortem re my concerns. I contacted Dr Schwartz and he stated that no blood tests were made due to the lack of blood required for tests. He advised me to have blood tests now and again in three months.
On 5 August 1992 at about 1.00 pm two ladies by the name of Cherrie and Kate, who said they were from the Psychology Unit of NSW Police Service performed a debriefing with Sergeant Smith, Senior Constable Higgins and myself who were on day shift. The other member who attended the incident Senior Constable Wade was unable to attend the debriefing as it would have incurred overtime. Cherrie could see that I had concerns, and when I explained my situation and concerns Cherrie told Kate to organise with St Vincent’s Hospital for me to attend to have blood tests taken and a talk, and for her to contact me with the arrangements.
On 13 August 1992 as I had not heard from the Psychology Unit re blood tests I took it upon myself to arrange for the tests to be performed. On this day I also stated in (additional comments) on my hurt on duty claim forms that as of Thursday 13 August 1992 I still have not been contacted by the Welfare Unit or the Psychology Unit, regarding my attendance for blood tests, which is playing on my mind, I have taken it upon myself to arrange for blood tests to be carried out. I have found the department totally unsupportive regarding this matter.
On 17 August 1992 (12 days after the debriefing) I was contacted by Cherrie from the Psychology Unit to see what had been done about blood tests. I said ‘You were going to arrange that, and as nothing had been done I took it upon myself to arrange for the tests’. Apparently Kate had gone to Goulburn to do a course and forgot to arrange for the tests.
I was feeling very depressed by this time. Furthermore, jokes were made at work by other members of the Rescue Unit such as ‘Had any human hamburgers lately?’ ‘Hannibal Cavanagh’, and ‘I hear you have become vegetarian lately’. Because of the ongoing stress I ceased work on or about 20 August 1992 and have not worked for the NSW Police Service since. I put in a claim for Hurt on Duty benefits and that claim was accepted in 1994. I have been in receipt of Hurt on Duty benefits ever since.
I first saw Dr Spragg, Consultant Psychiatrist, on 24 August 1992 and saw him on 27 occasions over a 1 year 7 month period. Dr Spragg then retired, and as I couldn’t handle all the emotions of going through it all again with a new doctor starting from scratch, I tried to deal with my feelings and depression the best way that I could, acquiring sleeping tablets from medical centres as I needed them. I did try to see if I could see Dr Strum on one occasion but he stated that he was a consulting Psychiatrist for the Police department and there might be a conflict of interest, so I didn’t persist. In December 2003 I started seeing Dr Quinn, Psychiatrist at Emu Plains, and I continue to consult Dr Quinn and have been on medication since seeing him.
The incident at Town Hall Station really was ‘the last straw’. I had been exposed to so many gory and bloody events in my work as a police officer that after the Town Hall incident it was just all too much. At no time during these years of work with the Police Service was I ever provided with any psychological counselling to assist me with the effects that these events were having upon me. I had not been given any education as to the signs and symptoms to look for as a result of being exposed to so much trauma. There was no debriefing after attending such incidents with the exception of the very brief contact made by those two ladies from the Psychological Unit some days after the Town Hall incident and even then it was not followed up.
Ever since 1992 I have suffered deep depression, anxiety, bouts of irritability and bad temper, and bouts of aggression. I continue to ruminate upon those incidents where I was exposed to so much blood and gore and misery. I rarely have a good night sleep – I constantly wake during the night and I experience nightmares. I am moody all the time. I am often withdrawn and just can’t communicate with people.”

7 When, as stated, the plaintiff was visited by the Psychology Unit officers he expressed prominent, and understandable, fears that the accidental intrusion of material into his mouth might have transmitted disease to him such as HIV or similar. The officers said that they would arrange a blood test. They did not act immediately. In what appears to have been a bureaucratic bungle, arrangements for it were not promptly made. Nevertheless the plaintiff himself made those arrangements and the tests were done. I do not have precise information but it can be deduced that the test results were favourable, and the plaintiff knew that at least by the end of the month of August 1992.

8 The statement which I have identified concludes with an observation that the plaintiff is receiving “100 percent of a Hurt on Duty pension” and makes a suggestion that he had missed possible promotions as a result of his career being terminated.

9 The evidence, which I accept, is that the plaintiff was not aware that he was suffering any psychological or psychiatric injury until after the incident of 1 August 1992. This testimony appears in his affidavit of 5 October 2005. The case which is sought to be made on his behalf is however, based not upon that single incident, but upon an absence of the provision of what are described in the pleadings as “counselling and/or other psychological or psychiatric treatment”, and “debriefing services” at any time. Despite the expansive scope of the pleading to incorporate all of the particularized incidents, the plaintiff’s evidence is entirely compatible with Dr Strum’s opinion in his report of 22 November 1994 that “clearly Mr Cavanagh’s chronic illness (post traumatic stress reaction characterized by anxiety and depression) was the result, not of cumulative illness, but of one horrendous incident (that of 1 August 1992)”. It is true, as counsel pointed out, that throughout the medical reports there are ambiguous references to traumatic events in general, but it is plain that in making the statement just quoted Dr Strum was, in distinction from those occasions, focussed upon the very precise issue.

10 It was not suggested that the plaintiff did not know, at least by 1994 when he sought medical discharge, that personal injury had been suffered nor that he was unaware of the chronic nature of his illness. In his application for medical discharge from the police force (6 August 1993) he described himself as suffering from post traumatic stress disorder. It is significant that in response to a request to state a reason for being incapable of carrying out police duties he wrote:

“Stress disorder resulting from a job incident in August 1992 when human internal flesh from a mutilated body entered my mouth and as a result I had to undergo tests for possible contamination for AIDS, Hepatitis B and other”. (Emphasis added)

11 These circumstances were recognized in the absence of any submission that the plaintiff could fulfil either criterion in s 60I(1)(a)(i) or (ii) and reliance was placed entirely upon subsection (a)(iii).

12 Counsel for the plaintiff was unable to specify any element in the assignments of negligence constituted by any act for which the defendant was responsible and the intended case was based solely upon alleged omissions of the kind which I have earlier mentioned.

13 To fulfil subsection (a)(iii) the plaintiff needs to show his unawareness of the connection between his post traumatic stress disorder and those alleged omissions. It is his evidence that he first became relevantly aware of this in November 2003 in these circumstances. A former colleague in the rescue unit, Lance Rice, had brought an action against the State. The plaintiff was asked to attend and give evidence concerning the recovery of bodies at Pheasant’s Nest on 3 January 1990 in which operation both he and Mr Rice were engaged. In what I gather was an incidental conversation with Mr Rice’s solicitor, it was suggested to the plaintiff that, as he put it “the Police Department may have been negligent in the way they provided me with assistance following exposure to various traumatic incidents”. Of course, as I have pointed out, the pleading asserts a failure to provide assistance rather than negligence in the way in which assistance was provided. Nothing turns upon the difference in expression.

14 In the following month the plaintiff consulted his present solicitor. There was a delay of nearly a further year before proceedings were commenced. I accept the explanation for that delay which is found in the chronology exhibited to the affidavit of Mr Mazurkiewicz of 6 October 2005. I do not regard this delay of significance in the determination of the issue. Assuming that the plaintiff became relevantly aware of the connection in about November/December 2003 he was therefore at that time, aware of all the criteria in subsections (i),(ii) and (iii) of s 60I(1)(a) and this application was made within three years of and thus complies with s 60I(1)(b).

15 It is apparently also the plaintiff’s intention to rely upon his ignorance of the existence of, specifically, Police Commissioner’s Instruction 12 and a report by a body known as Task Force Alpha. Instruction 12 relates to police psychology services. The plaintiff was aware as a result of the visit in August 1992 of the existence of a psychology unit but not of Instruction 12. This publication included:

“12.05 POST-INCIDENT DEBRIEFING
Where Police have been involved in shooting incidents, vehicular or other accidents in which persons have been killed or seriously injured, the Police Welfare Unit is to liaise with the Psychology Unit and the Police Medical Branch, to arrange appropriate counselling for staff involved.
In relation to these and other incidents, e.g. major disasters, Police exposed to danger for extended periods, gruesome or distressing incidents, the Unit can provide individual support or team debriefings, when requested, in order to ‘talk through’ people’s reactions to the incident.
If supervisors feel that their staff might be personally affected by a work related incident, they are to contact the Psychology Unit in order that an appropriate debriefing can be organised.
These debriefings are confidential and can be of considerable benefit.”

16 I note that counsel for the defendant observed, with reference to some of the incidents particularized as earlier in time, that Instruction 12 was issued in 1988.

17 The Task Force Alpha report is a document of considerable size. It contains, inter alia, a dissertation on “Pro Active Strategies for Dealing with Stress”. In its foreword it records that it, and other reports, offer broad guidance to the management of violence in New South Wales by the (police) Service. That is, it is obviously directed at managers dealing with violence suffered by line officers such as the plaintiff. The content therefore may reveal things which it can be said that the defendant ought to have known, but I am unpersuaded that it is the type document which ought to have been specifically communicated to the plaintiff.

18 Whilst the language in the first paragraph of Instruction 12.05 is language of command, what is required is liaison and the second paragraph contains the qualification “when requested”. The first paragraph deals with the response of supervisors. In the present case there was obviously a contact with the Psychology Unit after the August 1992 incident. It is difficult to contemplate why supervisors should have felt that the plaintiff might have been personally affected by other earlier incidents when the plaintiff himself was not at those times conscious of any untoward feeling.

19 The focus on behalf of the plaintiff on his ignorance of these two publications was somewhat oblique to the issue, the essential feature being whether the plaintiff is to be accepted when he deposes that he was unaware of the relevant connection until the end of 2003 when he attended court to give evidence in Mr Rice’s case. Presumably the content is intended to show matters of which the defendant ought to have been aware.

20 The defendant challenged the plaintiff’s credit. To a large measure this was based upon the failure of the plaintiff to disclose his post traumatic stress condition when making a claim for lump sum compensation in respect of a back injury which he had, independently of the incidents in the pleading, suffered during the course of his employment. It was submitted that the plaintiff was deliberately and therefore deceptively “compartmentalizing” his condition. Whilst the hydra-headed nature of the operations of Instruments of State are no doubt familiar to many (including lawyers), I find nothing sinister in the plaintiff not mentioning his post traumatic stress condition when providing information about his back disability. I accept that he may well have made the reasonable assumption that anyone dealing with the matter would know that he was a medically discharged officer on a 100 percent Hurt on Duty benefit and why he was receiving that benefit. I reject the defendant’s submission that the plaintiff’s credit has been impugned. I add that, insofar as it was said that the plaintiff was reluctant to make concessions, the distinct impression which I formed was that the plaintiff was very likely to be manifesting the anxiety which had been described by the doctors as an element of his illness. I consider the plaintiff was a truthful witness.

21 I accept the plaintiff’s evidence about the realization that there may have been omissions by the defendant which were connected with his condition only when he spoke to Mr Rice’s solicitor and then to his own solicitor towards the end of 2003.

22 Before an order can be made however, it is also necessary that there be some material to demonstrate the existence of a viable case. On a motion such as the present it is not incumbent upon the plaintiff to tender proof of his case on a prima facie basis but he should show at least some positive prospect of success.

23 To examine this, there can be a notional division between the consequences of the incident on 1 August 1992 and the previous incidents. For this purpose there is no need to discriminate the Granville attendance while the plaintiff’s duties seem to have been highway patrol rather than rescue.

24 A good deal of the medical opinion is simply couched in terms of the plaintiff’s general exposures to trauma but analysis of the series of reports from Dr Spragg (and Dr Strum whose explicit conclusion has been above set out) shows that it was the response to the event of 1 August 1992 which led to rumination about preceding incidents and there is no detectable history of the plaintiff feeling or exhibiting any sign or symptom which would provoke consideration of any need for psychological intervention or counselling at any time following the various experiences prior to August 1992.

25 The situation was obviously different following the calamitous event at Town Hall Railway Station. I accept that the plaintiff’s then condition manifested a need for treatment in respect of his mental and nervous states. Of this situation the defendant, as his employer, should have been aware. The next essential enquiry is, what would be the reasonable response of an employer to such awareness. The answer, which coordinates the particulars scheduled in the pleading, would be to provide the plaintiff with suitable treatment. No attempt was made to articulate a relevant discrimination between the pleader’s expressions of counselling, psychological or psychiatric services, nor do I perceive any call so to do.

26 As the plaintiff’s affidavit reveals, by 20 August 1992 he had seen his local doctor and by 24 August he commenced treatment under the care of Dr Spragg, a consultant psychiatrist with whom he continued to have consultations (about 27) over the next year and a half. Unfortunately the treatment was not successful and the post traumatic stress disorder became chronic. Dr Strum’s opinion confirms this. There is no evidence nor any suggestion that Dr Spragg’s treatment was inappropriate or inadequate. There was no suggestion in any material that any alternative treatment would have led to a different and potentially better outcome for the plaintiff.

27 It is true that the arrangements to see Dr Spragg were made by the plaintiff himself although it is observed that the defendant has met all medical treatment cost pursuant to one or other of the plaintiff’s various entitlements. There is no basis for conclusion that the outcome might have been different if the defendant itself had made arrangements for the plaintiff to see Dr Spragg.

28 I accept the submission by counsel for the plaintiff that the nature of the proposed claim is for damages for “the loss of a chance” but that “chance” is not an abstraction. It must be a chance that treatment, if made available to the plaintiff, could have led to cure of his post traumatic stress disorder or at least an amelioration of some of its symptoms. The unchallenged evidence is that appropriate treatment by a suitably qualified specialist was able to achieve neither of those things.

29 Ultimately the exercise of power vested by s 60G(2) requires a decision that it is just and reasonable to make the order extending time.

30 The defendant relied upon evidence (affidavits by Mr Lee and Mr Maxwell) which, in general, described anticipated difficulties in locating some witnesses, examining the content of lost, destroyed or otherwise unavailable contemporary documents pertaining to the plaintiff’s participation in and possibly his demeanour after the various traumatic experiences and, as well, there was reference to presumptive prejudice consequent upon delay.

31 It suffices to record that I am unpersuaded that potential prejudice to the defendant is of such magnitude as to inhibit fair trial.

32 Both counsel provided substantial lists of authorities to some of which reference was made. It can be observed that no comparable case of a factual nature, that is where it is alleged that the defendant failed to provide treatment for psychological harm but the plaintiff had in any event received suitable treatment, was able to be cited.

33 I stress that I am not implying that I have any reservation in accepting that the plaintiff was exposed to multiple horrific incidents in the course of his service nor that, finally, the event at Town Hall Station caused a disabling illness diagnosed as post traumatic stress disorder. I have said that I accept the plaintiff’s evidence of his realization that he might be able to sue for damages after he spoke to the solicitor incidentally while he was attending to give evidence at the Rice litigation.

34 The issue for me to determine, however, is to whether the plaintiff should be permitted to maintain an action commenced some 12 years after the alleged tortious omission, a period approximately double that prescribed by Parliament at the expiry of which such claims are ordinarily limitation barred.

35 Although, as argued for the plaintiff, I am favourably persuaded of the matters abovementioned, it would be futile in my view to grant the plaintiff an extension of time and permit him to embark upon litigation which is doomed to failure. It would be essential for the plaintiff to prove, as I have indicated, that omission by the defendant caused the loss of a chance of a more favourable outcome. In the circumstances, as the pleading recognizes, that would mean showing that treatment of the plaintiff’s psychological condition would have produced such a result. The plaintiff in fact had treatment by a competent and qualified psychiatrist and it is demonstrated that this neither cured or ameliorated his condition. The situation would be no different irrespective of whether that appropriate treatment was arranged by the plaintiff or by his employer.

36 Put another way, the psychiatric treatment of the plaintiff fulfilled what was requisite to constitute a reasonable response by the employer to the risk of injury which the employer ought to have known had fallen due upon the plaintiff. The absence of a critical necessary element of proof in order to sustain an action in negligence has the consequence of demonstrating an absence of the possession by the plaintiff of a viable cause of action.

37 I comment that it would not appear to be in the plaintiff’s own best interests to make an order which would see him occupied in substantial litigation with an adverse result as the realistic prospect.

38 For the above reasons I conclude, in terms of s 60G(2) that it is not in the particular circumstances just and reasonable to extend the limitation period and the notice of motion is dismissed.

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