Elms v State of NSW - [2007] NSWSC 876

CITATION: Elms v State of NSW [2007] NSWSC 876

HEARING DATE(S): 30 July 2007

JUDGMENT DATE :
13 August 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (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.

CATCHWORDS: Extension of time - s 60C, Limitation Act 1969 - police officer, psychological injury

LEGISLATION CITED: Crown Proceedings Act 1988 (NSW) - ss 3 & 5
Limitation Act 1969 (NSW) - ss 18A, 60C & 60E

CASES CITED: Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth v Smith [2005] NSWCA 478
Holt v Wynter (2000) 49 NSWLR 148
McLean v Sydney Water Corporation [2001] NSWCA 122
New South Wales v Fahy [2007] HCA 20
Spaulding v Commonwealth of Australia (No 2) [2006] NSWSC 81
Sydney City Council v Zegarac (1998) 43 NSWLR 195

PARTIES: Brian Elms - Plaintiff
State of New South Wales - Defendant

FILE NUMBER(S): SC 14607/2006

COUNSEL: Mr B Toomey QC with Mr D J Price - Plaintiff
Mr D Mallon - Defendant

SOLICITORS: Philip Sim & Associates - Plaintiff
McCabe Terrill Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 13 AUGUST 2007
14607/2006 - BRIAN ELMS v STATE OF

NEW SOUTH WALES

JUDGMENT (Extension of time – s 60C, Limitation Act 1969 – police officer, psychological injury)

1 HER HONOUR: By summons filed 18 September 2006 and by notice of motion filed 6 June 2007, the plaintiff seeks an extension of time pursuant to s 60C(2) of the Limitation Act 1969 (NSW) (the Act) to file and serve the statement of claim that he verified on 23 May 2007, within 21 days of the Court’s determination of this notice of motion.

2 The plaintiff is Brian Elms. The defendant is the State of New South Wales. The plaintiff relied on his affidavits dated 23 February 2007 and 6 June 2007.

3 There was much dispute as to whether the statement of claim properly particularised the plaintiff’s claim. Mr Toomey QC, Counsel for the plaintiff, submitted that it was not necessary to rely on a statement of claim, but rather for the plaintiff to establish that he is “claiming to have a cause of action” (see s 60C(2)). Counsel for the defendant, Mr Mallon, submitted that before a plaintiff can proceed with an application under the Limitation Act he had to have a statement of claim in proper form so as to allow the Court and the defendant to know the case that the plaintiff wishes to bring. In any event, there is a draft statement of claim in evidence before this Court.

4 The statement of claim relevantly pleads that the proceedings are brought against the defendant pursuant to ss 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 876
Decision Date: 13 August 2007

CaseChat Overview and Summary

The matter of Elms v State of NSW arose in the Supreme Court of New South Wales. The plaintiff, Mr Elms, sought damages for psychological injury sustained while performing his duties as a police officer. The primary issue before the court was whether the plaintiff's claim was time-barred under section 60C of the Limitation Act 1969. The plaintiff argued that an extension of time should be granted due to the psychological nature of his injury, which only became apparent several years after the incident.

The court had to determine whether the statutory limitation period for the plaintiff's claim had been tolled by the provisions of section 60C of the Limitation Act 1969. This section allows for an extension of the limitation period for claims involving personal injuries if the injured party did not know, and could not with reasonable diligence have known, of the injury or its cause. The court considered the evidence regarding the onset of the plaintiff's psychological injury and whether he could have discovered it earlier with reasonable diligence.

The court found that the plaintiff's psychological injury did not manifest in a manner that would have alerted him to its existence earlier. The nature of the injury, compounded by the plaintiff's role as a police officer, made it difficult to identify the injury's onset. Consequently, the court granted an extension of time for the plaintiff's claim, finding that he could not have reasonably discovered the injury earlier. The court concluded that the statutory limitation period did not bar the plaintiff's claim.

In light of the court's findings, it dismissed the defendant's argument that the claim was time-barred and allowed the plaintiff's action to proceed. The court directed that the matter proceed to trial to determine the extent of the plaintiff's damages and whether the defendant was liable for the psychological injury sustained by the plaintiff during his employment.

Orders