Eric Fleming v State of New South Wales

[2015] NSWDC 104

District Court

New South Wales

Medium Neutral Citation:	Eric Fleming v State of New South Wales [2015] NSWDC 104
Hearing dates:	27-28 May 2015
Decision date:	26 June 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Leave granted to commence proceedings out of time
Catchwords:	Work injury damages claim; application to extend time for bringing proceedings
Legislation Cited:	Limitation Act 1999 (NSW) Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Police Act 1990 (NSW)
Cases Cited:	Coal & Allied Operations Pty Limited trading as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Hornby v The Nominal Defendant [2007] NSWCA 222 Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207 Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 Lawlor v State of New South Wales [2014] NSWSC 16549 New South Wales v Fahey (2007) 81 ALJR 1021 Opoku v P & M Smallgoods Pty Limited [2012] NSWSC 478 Smith v Grant [2006] NSWCA 244 State of New South Wales v Judd [2003] NSWCA 355 Strasburger Enterprises Pty Limited trading as Quix Food Stores v Serna [2008] NSWCA 354 Tabet v Gett (2010) 240 CLR 537 Yu v Spiers [2001] NSWCA 373
Category:	Procedural and other rulings
Parties:	Eric Fleming (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: T Ower (Plaintiff/Applicant) D Stanton (Defendant/Respondent) Solicitors: Harris Wheeler Lawyers Sparke Helmore Lawyers
File Number(s):	14/354682
Publication restriction:	Nil

Judgment ON MOTION

The Plaintiff’s Claim

1. The plaintiff seeks by Notice of Motion filed on 23 December 2014 an order that the court grant leave to the plaintiff to commence proceedings against the defendant nunc pro tunc by way of a Statement of Claim previously filed on 19 November 2014 pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) (“WCA”).

2. The Statement of Claim, filed by the plaintiff, claims damages for injuries suffered by the plaintiff from 1995, when he was first attested as a police officer. As a result of his involvement in various incidents from that date until 2007, the plaintiff claims that he developed a psychiatric illness. The plaintiff claims that the defendant knew or ought to have known that he was vulnerable to the risk of psychiatric injury. The plaintiff claims the defendant breached its duty of care to him as an employee in failing to take reasonable care to avoid the risk of psychiatric injury to the plaintiff. As a result of that breach, the plaintiff claims that the defendant, by its negligence, caused him to develop chronic Post‑Traumatic Stress Disorder (“PTSD”) and a major depressive disorder.

3. The plaintiff relied on affidavits of his solicitor, Mr Stuart Gray, affirmed on 18 December 2014, 12 May 2015 and 18 May 2015. The plaintiff also relied on two affidavits affirmed by himself on 5 May 2015 and 20 May 2015. There was no objection to any of the affidavit material. However, both deponents were required for cross-examination.

Chronology

4. The following chronology is relevant to the determination of the plaintiff’s application:

1 March 1964 – Plaintiff born

1985 – 1995 – Plaintiff served in the Navy as a submariner

1995 – Plaintiff attested as a NSW police officer

16 January 2006 – The plaintiff retains Harris Wheeler Lawyers in respect of injuries suffered at work

24 August 2006 – Claim made for lump sum payment pursuant to s 66 WCA

January 2007 – Mr Stuart Gray takes over conduct of the plaintiff’s file

12 February 2007 – Proceedings commenced in Workers Compensation Commission over dispute regarding lump sum claim

May 2007 – Plaintiff ceases employment with the defendant

November 2007 – Workers Compensation Insurer for NSW Police Force accepts liability for the plaintiff’s psychological injury

1 July 2008 – The plaintiff’s Workers Compensation Claim finalised by issue of a Certificate of Determination

15 July 2008 – Police Association refers the plaintiff to Harris Wheeler Lawyers for the purpose of pursuing a claim pursuant to WCA with respect to the plaintiff’s psychological injury

30 July 2008 – The plaintiff medically discharged pursuant to s 72A of the Police Act1990 (NSW).

10 May 2010 – Claim made for WPI lump sum compensation pursuant to s 66 WCA for psychological injury

10 May 2010 – Proceedings commenced in Workers Compensation Commission regarding dispute over lump sum claim

23 June 2011 – Decision of Keating P in Commission in favour of the plaintiff

12 September 2011 – Defendant files Notice of Appeal in Court of Appeal

12 September 2012 – Defendant discontinues appeal on hearing date

8 February 2013 – Complying agreement for 23% WPI for psychological injury

30 April 2013 – Notice of work injury damages claim served together with particulars

May 2014 – Plaintiff receives report from Professor MacFarlane supporting his claim

28 May 2014 – Pre-filing Statement served

14 October 2014 – Mediation

21 October 2014 – Certificate of Mediation outcome received by plaintiff’s solicitor

19 November 2014 – Statement of Claim filed

18 December 2014 – Defence filed

The Evidence

5. In the plaintiff’s affidavit affirmed on 5 May 2015 he set out his history of service with the New South Wales Police Force. In 2004 he had complained to his direct senior officer, Sergeant Dale, concerning psychological symptoms he was suffering at that time. He did not seek the assistance of a psychologist or psychiatrist, but was hospitalised on two occasions during 2004, the first occasion the plaintiff was suffering from a severe migraine and the second occasion he was experiencing severe abdominal pain. That pain was attributed to stress.

6. After being struck by a car whilst performing random breath testing duties at work, he reported psychological symptoms and commenced to see a psychologist, Sandra Masih in 2006. He also suffered a shoulder injury for which he underwent surgery on 16 February 2006 and 21 March 2007. He thereafter ceased duties with the New South Wales Police Force in May 2007. His GP referred him to a psychologist, Craig Holt, on 18 July 2007 and then he was referred to a psychiatrist, Dr Mark Whittington, on 28 August 2007. Up until that time the plaintiff deposed that he had only ever had the goal of returning to work. However, after Dr Whittington had diagnosed him with PTSD, his workers compensation insurer accepted liability for his psychological injury.

7. On 1 July 2008 the plaintiff finalised his workers compensation proceedings with respect to his physical injuries. In October 2008, he was advised by his own psychiatrist, Dr Mark Whittington, that he was not a Work Cover approved doctor and therefore was examined on 9 October 2008 by Dr Mark Scurrah. In March 2009, Dr Scurrah advised him that he could not be assessed for whole person impairment as his condition was not stable. He was waiting on his solicitor’s advice for his assessment of whole person impairment to take place. He was advised not to pursue a claim in negligence until he entered into a complying agreement or he had been assessed as 15% whole person impaired.

8. The plaintiff’s Workers Compensation Commission proceedings went to the Court of Appeal on a question of law. Following completion of those proceedings in early March 2013 he instructed his solicitors to pursue a claim in negligence against the New South Wales Police Force. It was at that time the plaintiff deposed that he was first advised by his solicitor that there was a three year time limit in which to bring his claim. The same solicitors had represented him throughout.

9. In his affidavit affirmed on 20 May 2015, the plaintiff deposed to his service in the Royal Australian Navy between 7 January 1985 and 8 October 1995. Annexed to the affidavit was his Psychology Record relating to his fitness to join the sub-marines. Also annexed was his medical assessment upon resignation from the Navy.

10. The plaintiff also deposed that he had been medically examined both physically and psychologically prior to being attested as a police officer in New South Wales and was not diagnosed with any psychological injuries.

11. He then deposed to the circumstances where he had applied for a DVA allowance to Veteran Affairs with the assistance of an advocate from Twin Towns RSL sub-branch named Mr Joe Russell. Included in that form was a claim that he had suffered PTSD as a result of his service in the Navy, and the plaintiff deposed to the circumstances in which he later withdrew that claim. The plaintiff also deposed to a condition of anxiety he felt when getting on boats and going out to sea, of which he became aware in 2004 when he bought a boat which he used on the Tweed River for fishing.

12. The plaintiff was cross-examined at length by learned counsel for the respondent. The plaintiff identified his supervising officers at Wetherill Park, Green Valley and Cabramatta and following his transfer to Wanaaring in 1998. When he was moved to Brunswick Heads in 2000 he was supervised by Sergeant Dale and Inspector Carey.

13. The plaintiff was cross-examined about reporting to Sergeant Dale, his direct senior officer, feeling upset after an incident in 2004 when he attended a major fatality on the Pacific Highway. He was feeling upset and anxious at that time. The plaintiff kept notes of his various conversations in his official police notebook which he had scanned onto a CD.

14. Much of the cross-examination of the plaintiff was designed to impugn his credit. Exhibit 1 was a statement of the plaintiff dated 9 November 2010 which was said to have been prepared for his work injury damages claim.

15. The plaintiff gave evidence that he did not get on well with the psychologist he was sent to in 2006, Sandra Masih, however, he denied being told by her that he was suffering from PTSD. He gave evidence that he was first told that he had that condition by his GP, Dr Camilleri, after the 2005 incident where he injured his shoulder.

16. The plaintiff was cross-examined on an email he had sent to his solicitor on 30 May 2007 seeking advice as to his ongoing stress-related problems. The email was tendered as exhibit 2. He could not recall what advice he was given in respect of that matter. He could not recall his solicitor telling him that he had three years from the date of the cause of action to bring a claim of psychological injury, nor could he recall when he first learnt that. He was advised that he had to be assessed as having 15% whole person impairment before he could make a claim in negligence.

17. The plaintiff was cross-examined about an incident during his naval service in which two of his close friends drowned. He said it was a distressing incident, but when asked whether it had any particular impact on him, his answer was:

“A: No. Anxious about deep waters.”

18. The plaintiff gave evidence that he had suffered symptoms of irritable bowel syndrome since 1988 which he put down to anxiety. He was also cross‑examined about the circumstances in which his DVA application for a pension was made. He told Mr Russell that he got PTSD while he was in the police force but was not aware that Mr Russell had included that in his application until particulars of that condition were requested by the department.

19. The plaintiff was cross-examined about a psychiatrist, Dr Can, he had seen in February 2004 in the context of his application for a DVA pension.

20. He gave evidence that he was sent to see Dr Can by the Department of Veteran Affairs, however, he changed that evidence and said that Dr Can was recommended by other expats. When asked what he had been told about Dr Can, he said:

“A: If I wanted like family assistance, alcoholism, treatment and for my anxiety as well. Sure some of the pats were being treated both for PTSD but also for alcoholism.”

21. The plaintiff agreed that he had associated symptoms of alcohol abuse with the condition of PTSD. He agreed that he had suffered from symptoms of anxiety from 1987 and that his abuse of alcohol had started at that time whilst he was in the Navy. The plaintiff received no treatment from Dr Can. It was put to the plaintiff that he had told Dr Can that his PTSD symptoms arose from incidents in the Navy. However, the plaintiff denied that. The plaintiff denied that he had suffered symptoms of PTSD dating back to an incident in the Navy in 1987. He was then cross-examined about the Department of Veteran Affairs disability pension application which contained entries inconsistent with that evidence. It became exhibit 3.

22. It was put to the plaintiff that he had withdrawn his PTSD claim from his DVA application because he had “got wind of the fact that the defendant in this case had subpoenaed his GP’s records”, which he denied. The plaintiff did give evidence that he had spoken to his solicitor about the matter before withdrawing the PTSD claim.

23. Finally, it was put to the plaintiff that he put into documents, including the DVA application and an application for benefits to Metlife, whatever information he thought he would require in order to receive a financial benefit. He denied that. The Metlife application became exhibit 5.

24. The plaintiff’s solicitor Stuart Gray, affirmed the three affidavits referred to in [3] above. The first of those affidavits deposed to the multitude of dealings between the plaintiff and his firm from January 2006. Exhibited to the affidavit and marked SG1 was a volume of relevant documents.

25. Notwithstanding that the plaintiff had been examined by Dr Mark Whittington as a treating psychiatrist in 2007, Mr Gray did not have in his possession or observe a report dated 19 September 2007 which Dr Whittington had sent to the rehabilitation co-ordinator of the New South Wales Police Force. Mr Gray became aware of it when solicitors acting on behalf of the workers compensation insurer served that report on the plaintiff’s solicitors in 2010. Mr Gray was unaware that the workers compensation insurer had accepted liability for the plaintiff’s psychological condition by letter dated 8 November 2007. He became aware of that letter when it was received, together with the letter of instruction from the Police Association of New South Wales to his firm, under cover of the letter dated 15 July 2008.

26. The affidavit deposes to the various medical appointments made for the plaintiff, the significant ones listed in the chronology of events, set out above.

27. The affidavit deposed to the circumstances in which the question of law was referred to the Court of Appeal by the workers compensation insurer in respect of the plaintiff’s workers compensation proceedings, and the circumstances in which that appeal was discontinued in September 2012.

28. On 30 April 2013, Mr Gray served on the Commissioner of Police and the relevant insurer the particulars required under s 282 of the Workplace Injury Management and Workers Compensation Act1998 (NSW) (“WIM Act”). Arrangements were then made to have the plaintiff examined by Professor McFarlane, a leading and eminent expert in the field of psychiatry specialising in PTSD. That appointment was arranged for 22 August 2013. He was also examined by Dr Potter on behalf of the insurer on 19 September 2014. Mediation was held on 14 October 2014, following which, a certificate issued advising that the matter had not settled at mediation on 21 October 2014.

29. Mr Gray’s affidavit affirmed on 12 May 2015 deposed as to enquiries he had made as to the whereabouts of certain witnesses who could be required to give evidence in this matter, including the plaintiff’s supervisor referred to above, namely, Sergeant Kenneth Dale, and Mr Damic.

30. The affidavit of Mr Gray affirmed on 18 May 2015 deposed as to the enquiries he made in respect of the whereabouts of further witnesses being Michael Kenny, a former Superintendent of the Police Force and Mr Brett Mahaffy.

31. Mr Gray was cross-examined about the advice he gave the plaintiff in respect of the plaintiff’s application for a DVA pension. He agreed that there was no file note on his file in respect of any such advice. His best recollection was that the plaintiff had telephoned him and informed him that he was making a claim in relation to events that occurred during his time in the Navy. He gave this evidence:

“A: He asked ‘Do you want to do that claim for me?’ and I said to him, ‘No’. It’s got nothing to do with your police stuff does it?’

‘No’.

And I said, ‘Look it is a claim. If you have a dispute come and see me, but otherwise I’ll just be taking off money from you to fill in forms.’ and that was high as it went.”

32. Mr Gray assisted the plaintiff to prepare an affidavit in respect of the steps he had taken to withdraw his PTSD claim from the DVA application. The plaintiff had not informed Mr Gray that he was pressing on with the claim in respect of anxiety and alcohol dependence arising out of the events of 1987.

33. Mr Gray had taken over the care and conduct of the plaintiff’s files in April 2007. He had only found out “quite significantly” after September 2007 that the plaintiff was seeing Dr Whittington as a treating psychiatrist. He had received the letter from Allianz on 15 July 2008, but did not consider himself instructed in a psychological injury case at that point. He received those instructions on 24 June 2008. He then received a referral from the Police Association of New South Wales on 15 July 2008. At the time that he received those instructions Mr Gray was only aware of one incident on 4 November 2005 when Mr Fleming was run over. He had no appreciation that there were a number of incidents. Mr Gray advised the plaintiff that there was a three year limitation period on the day that he signed his complying agreement in March 2013. No advice was given to that effect before that date.

34. Mr Gray was cross-examined about qualifying Dr Scurrah, and agreed that at that time he apprehended that the plaintiff would have a greater than 15% whole person impairment. He gave the following evidence:

“Q: So why didn’t you give notice to the employer in 2008 of an intention to bring a work injury damages claim at that time?

A: Because I was of the belief, wrong or otherwise, that I couldn’t commence those proceedings until he had obtained either a complying agreement or an order that he was 15% or more.

Q: Well you know that expression of opinion is not correct at all?

A: I know that now, yes.

Q: When did you find that out?

A: There was a case in 2009, I think that determined the issue. I can’t remember what it was, but it was a District Court case. It was referred to by Neilsen, Jones v Spackman. I remember the decision at the time and put all that to—

Q: How about JC Equipment Hire Pty Limited v The Registrar, Workers Compensation Commission New South Wales?

A: Yes.

Q: Is that the case you’re referring to?

A: That’s the case I’m referring to.

Q: It is a Court of Appeal case that was handed down on 31 March 2008. So it was six months before you wrote to the doctor, correct?

A: Yes. I can’t remember when I read JC Equipment. I can’t remember if I read it in March, but I did read it at some point in time. I appreciate that.

Q: The point of that case, which is the law and remains the law, is that a claim for work injury damages is different to a claim under s 66 for whole person impairment, isn’t that right?

A: Yes.”

35. Mr Gray went on to give evidence that he now appreciated that the plaintiff had an obligation to move quickly if they were out of time to remedy that situation. He had gained an appreciation of that in about 2009 or the start of 2010. Notwithstanding that, he had not given notice of a work injury damages claim in May 2010 when he had received the report of Dr Scurrah and had commenced a claim under s 66 and 67 of the WCA. He gave this evidence:

“Q: You knew at the time that there was a difference between a lump sum claim and a work injury damages claim?

A: Yes. Yes I did.

Q: You certainly by that time were fully aware of the nature of the case that the plaintiff wanted to advance in these proceedings?

A: No. I disagree with that.

Q: When do you say you became fully aware of that?

A: As material was filed in reply in the lump sum case, there were documents that came to light under directions and documents were provided to me by the insurer, frankly I had a more thorough outlook into it as the case went on and we ended up in the Court of Appeal, so, yes, it was around then that I started to look closely into all these documents that had been turned up from clinicians and personal files and the like …

Q: You certainly you knew well prior to 2010 that the plaintiff had PTSD?

A: Yes. Yes, I certainly did.

Q: And you also knew that Dr Whittington had certified him unfit for work in 2007 because of that condition?

A: Yes. I knew that.

Q: So getting a report from Dr Whittington didn’t change your state of knowledge did it?

A: Well, I would disagree with that.

Q: What was it about that report that changed your state of knowledge?

A: One of the – I – well, it may be just be my – again being mistaken, that I was of the opinion that I had to prove knowledge or constructive knowledge of the defendant in a case like that.

Q: Sorry, I’m not sure I understand that. What constructive knowledge of what problem?

A: Of the PTSD. See – and I said in my affidavit, the Allianz letter and the Mark Whittington letter to the police then – that triggers, I assume, the Allianz acceptance. I didn’t receive that until years later. I didn’t come into my possession. It came to my possession from the insurer in that case.”

36. Mr Gray identified exhibit 1 as a statement prepared in draft by him for the plaintiff to sign for the purpose of commencing proceedings in the Workers Compensation Commission for a lump sum benefit, not for a work injury damages claim (see [14] above).

37. Mr Gray was asked about the s 282 particulars which were drafted by counsel. He agreed that he had an assessment of 23% whole person impairment from Dr Scurrah in 2010, and that he could have obtained those particulars and given notice of claim in 2010. His explanation was that he wanted to wait for a complying agreement or an AMS Certificate. Mr Gray was also asked about his second and third affidavits and the potential witnesses he had spoken to.

38. In re-examination, Mr Gray was asked why he did not make a work injury damages claim in 2010, he gave the following evidence:

“A: I was frankly gun shy. I was involved in a case called Richard Waterson v State of NSW – filed proceedings against the Workers Compensation Commission and Mr Waterson in the administrative division of the Supreme Court because I had done exactly what was suggested to me, which was to start a notice of claim at the end of 2009 without the 15% and Messrs – well, I don’t know if they were DLA Phillips Fox or – I think they were still Phillips Fox at that stage – filed in the administrative division and I then spent the next eight months fighting a case down there about JC Equipment and the difference between whole person impairment and ticking a box on a sheet about work injury damages 15%, permanent impairment 15%. The ultimate result of that was they paid me indemnity costs. …

Q: Since then have you ever taken a step of claiming work injury damages without satisfying the 15% threshold?

A: I never have because it is a huge financial risk to clients and I am not – if they don’t get the 15%, then they have to pay the outside costs from these proceedings. That is a huge risk, and I’m not willing to risk again, having to go through another Supreme Court action over Jaycee Equipment, which is still – I appreciate the insurer’s direct is not to raise the issue any more – my apologies – I am just not willing to do that anymore.”

39. Additional documents tendered were reports of Dr Aiden Can, dated 20 February 2014, which became exhibits 7 and 8.

Whether leave should be given to extend time for bringing proceedings

40. Section 151D provides relevantly as follows:

“151D Time Limit for Commencement of Court Proceedings against Employer for Damages

(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concern against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

41. In Strasburger Enterprises Pty Limited trading as Quix Food Stores v Serna [2008] NSWCA 354 Basten JA (with whom Gyles AJA and Hoeben J agreed) said in relation to the section:

“52. With respect to this and similar provisions, which contain no express indication of the matters to be considered in relation to an application to extend time, ‘the limits of the discretion are to be found in the subject matter, and the scope and purpose of the statute’: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 430F (Gleeson CJ); see also [535-539] Kirby P and [541] Powell JA. Subsequently, the High Court provided guidance as to the correct approach in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, although the majority judgments did not speak in identical language and were concerned with the limitation provision which provided some guidance as to factors to be taken into account. As explained in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96] by McColl JA:

“Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting of the extension would result in significant prejudice to the potential defendant …’Significant prejudice means such prejudice as would make chances of a fair trial unlikely … For a trial to be fair, it need not be perfect or ideal …’”

42. In Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207, Ipp AJA (with whom Spigelman CJ and Sheller JA agreed) said the proper approach in respect of an application for leave under s 151D, having reviewed the authorities, was as follows:

“[87] In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or, what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question the justice of the case must be evaluated by reference to the rationale of the limitation period that has barred the action, including the four rationales to which McHugh J referred.”

43. The four rationales that his Honour was referring to were set out by Ipp AJA at [78] as follows:

“McHugh J (at [552]) identified four broad rationales for the enactment of limitation periods, generally. These were:

1. As time goes by relevant evidence is likely to be lost;

2. It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;

3. It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;

4. The public interest requires that disputes be settled as quickly as possible.”

44. The delay in commencing proceedings here was submitted by the plaintiff to be in the order of 4 years and 10 months. That was on the basis that the period from the termination of the plaintiff’s employment in May 2007 to filing of the Statement of Claim was 7 years and 6 months. However, from that period should be deducted periods of time pursuant to ss 151D (a) and (b) amounting to 2 years and 8 months. It was further relevant that the plaintiff’s condition did not stabilise for a period of 3 years up until 18 March 2010.

45. In dealing with the presumptive prejudice that arises by reason of delay, the defendant referred to the judgment of Tobias JA in Hornby v The Nominal Defendant [2007] NSWCA 222 at [58] where his Honour said:

“The principles relevant to the power of a Court to make an order extending time if it thinks such an order is just and reasonable in all the circumstances were articulated in Smith at [122] – [129] by Santow JA, with the agreement Handley and Basten JJA the latter differing from the majority as to their application to the facts of the case. They can be summarised in the following propositions:

1. Since the purpose of limitation periods is to preclude stale claims which a Defendant would find difficult to defend given the effluxion of time, it is prima facie prejudicial to a Defendant to allow the commencement of an action outside that period. This is because the Defendant suffers presumptive prejudice where an extension of the limitation period is granted.

2. Although it is a truism that where there is delay the whole quality of justice deteriorates and that such deterioration may in some cases be palpable such as where a crucial witness is dead or an important document has been destroyed, in other cases that deterioration in quality is not recognisable even by the parties. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, cited by McHugh J in Taylor at 551: ‘What has been forgotten can rarely be shown’.

3. Nevertheless, presumptive prejudice of itself may not disentitle the Plaintiff to the leave sought. Although it may be irrelevant that an order extending time would not put the Defendant in any worse off position than it would have been if the action had been commenced within, but towards the end of, the limitation period (Taylor at 554), once the potential liability of the Defendant has ended then its capacity to obtain a fair trial, if an extension of time were granted, is relevant and important. To subject the Defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the Plaintiff of the right to reinstate the lost action. This will often be the case where the Plaintiff is without fault and no actual prejudice to the Defendant is readily apparent. The position is different where a Defendant, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact: Taylor at 555.

4. Where actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the Defendant has proved the fact or the real possibility of significant prejudice: Taylor at 555.

5. ‘Significant prejudice’ means such prejudice as would make the chances of a fair trial unlikely. However, for a trial to be fair, it need not be perfect or ideal.”

46. The defendant correctly submitted that the plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended, and that the defendant bears the evidentiary onus of proving actual prejudice beyond that presumed to occur by reason of effluxion of time alone. It was also correctly submitted that consideration of the justice of the case will invariably involve a consideration of the reasons for the delay and an examination of the diligence (or otherwise) of the plaintiff.

47. The defendant submitted that the plaintiff “needs to show that he has a viable cause of action so it would not be futile to make the orders sought”, relying on Yu v Spiers [2001] NSWCA 373 at [34] – [55]. The defendant correctly points out that the plaintiff relies on a period of employment with the New South Wales Police Force commencing in 1996 and therefore involved litigation about matters that may have occurred up to almost 19 years ago. This submission was made notwithstanding the judgment of Adamson J in Opoku v P & M Smallgoods Pty Limited [2012] NSWSC 478 where her Honour held that s 151D limitation periods did not commence until an agreement is reached or a determination is made that the plaintiff has greater than 15% whole person impairment. That decision has been the subject of some criticism – see for example Lawlor v State of New South Wales [2014] NSWSC 16549 at [18] – [22], but has not as yet been considered by the Court of Appeal.

48. It was submitted by learned counsel that the failure by the plaintiff’s solicitor to provide timely advice as to the three year limitation period, and whether that should be “sheeted home to the plaintiff” is a vexed question, referring to State of New South Wales v Judd [2003] NSWCA 355 and Coal & Allied Operations Pty Limited trading as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 at [35] – [37].

49. The defendant placed much emphasis on the reliability of the plaintiff as a witness of truth as being a relevant consideration to the granting of leave. This is necessarily connected to the concept of whether the plaintiff’s case is in any event a futility, based on credit considerations and the need for the plaintiff to show, on the balance of probabilities, that there are reasonable prospects of success. It was submitted that the law recognises that exposure of police officers to traumatic events in the course of their employment is not in itself a breach of the employer’s duty of care, relying on New South Wales v Fahey (2007) 81 ALJR 1021 at [27].

50. In this case, the defendant properly conceded that the evidence from Professor McFarlane prima facie will prove breach of the employer’s duty of care. However, the defendant has raised a causation issue on the basis that Professor McFarlane has opined that the plaintiff has lost the chance of a better outcome by reason of a failure to properly monitor his condition following his report of injury in 2005. Relying on the High Court’s decision in Tabet v Gett (2010) 240 CLR 537, the defendant submitted that if what the plaintiff could prove was merely loss of a chance of a better outcome, then the plaintiff could not demonstrate that the respondent’s negligence was, on the balance of probabilities, a cause of the damage suffered by him.

51. In his oral submissions counsel for the defendant submitted that there was delay in this case which could be sheeted home to the plaintiff. The question then becomes whether it was reasonable delay in the circumstances. The delay in fact was caused by the plaintiff’s solicitor not commencing proceedings prior to the assessment of whole person impairment over 15%, but rather waiting until a complying agreement was reached in February 2013. It was at that time that Mr Gray gave notice of the plaintiff’s work injury damages claim.

52. The defendant submitted that it was clear that in 2008 when Mr Gray wrote to Dr Scurrah seeking an opinion, he was reasonably confident that the plaintiff would be assessed at over 15% and, that he was incapacitated for his former duties as a police officer and unlikely to return to that type of work. In failing to make the claim in a timely manner when there was clear authority that he should do so, the effect of the solicitor’s conduct was that the plaintiff had not been diligent in his own interests. It was submitted that there was no reasonable explanation for the delay in the circumstances, given such an extensive delay of almost six years after Mr Gray took over carriage of the matter in 2007.

53. Counsel for the defendant drew a distinction between commencing proceedings for work injury damages and giving notice of such action. The latter was a step that could have been taken in this case, but was not. The defendant first heard about the case in 2013 when the notice was given. It was submitted that the particulars and notice of claim should have been given to the defendant in either 2008 or 2010. Learned counsel properly conceded that he had not put to Mr Gray that he needed to commence proceedings at that time, and accepted the proposition that the action of commencing proceedings is somewhat problematic as an award of damages cannot be made until you get an agreement that the worker is over 15% whole person impaired.

54. In respect of the question of credit, it was submitted that in a case of psychological injury, credit was important because so much turned upon the veracity of the person reporting the symptoms. The issue of prejudice to the defendant was therefore compounded by the fact that the plaintiff was shown to be unreliable based on his cross-examination on documents produced from the Department of Veteran Affairs and from Dr Can, as referred to above. Counsel highlighted the limited extent of any disclosure by the plaintiff as to the 1987 incident when he was in the Navy and in respect of his reporting of alcohol consumption whilst in the Police Force without reference to his naval experience. It was further submitted that the withdrawal of his DVA claim based on PTSD only happened when he became aware of the defendant issuing a subpoena for the relevant records. Further, he had given evidence that he had sought legal advice about that matter and it was Mr Gray who told him to withdraw his claim for PTSD, which did not accord with Mr Gray’s evidence as set out above. In summary, it was submitted that the plaintiff was completely unreliable, which was a very relevant consideration in relation to actual prejudice, notwithstanding that it was conceded that relevant records from the plaintiff’s employers, namely, the Royal Australian Navy and the New South Wales Police Service would be available at any trial.

55. The determination of whether there was in fact actual prejudice to the defendant, in this case, cannot be determined merely by an assessment by the court of the plaintiff’s credit based on his cross-examination on this application. What is readily apparent from that thorough cross-examination is that the defendant will have at its disposal ample material upon which to cross‑examine the plaintiff at trial if leave were to be granted. The defendant does not allege actual prejudice by way of the unavailability of witnesses, nor the unavailability of employment records, including medical records. In fact, the contrary was the case. The defendant did not go into evidence.

56. It is clear that the plaintiff’s credit will be in issue in the proceedings. However, I could not come to any concluded view about that, based on cross‑examination on limited materials, when the evidence at any trial would be complete and the plaintiff will have the opportunity to meet the various ways in which his credit was impugned by the defendant. It would be wrong to form a determination adverse to the plaintiff’s credit based on the limited cross‑examination, and any finding in any event could not bind the trial judge if leave were granted.

57. Furthermore, I do not accept the defendant’s submission on the plaintiff’s case being futile on the basis that he cannot prove causation. Again, that will have to be proved on the basis of all the evidence at the end of the trial if leave is granted, and the selective use of material from Professor McFarlane’s report does not persuade me that the conclusion that causation cannot be proved is inevitable. Indeed I was referred to other passages of that report which would suggest otherwise. As I am not determining the matter on the merits, I cannot make an affirmative finding on that issue.

58. The real issue for determination here is whether the presumptive prejudice of the defendant caused by the delay by the plaintiff giving notice of his work injury damages claim and then complying with the machinery provisions of the WIM Act is sufficient to establish a conclusion that a fair trial cannot take place.

59. Central to that question is the part played by the omission of the plaintiff’s solicitor to give him timely advice as to the three year limitation period, and to delay providing advice as to the commencement of proceedings.

46. Counsel for the defendant conceded that this case differed markedly from that dealt with by the Court of Appeal in Itek Graphix, supra, where the plaintiff took a decision not to proceed deliberately on a fully informed basis and upon advice, and allowed a three year limitation period to expire. In Smith v Grant [2006] NSWCA 244, the Court of Appeal considered a limitations provision under a different statutory scheme, namely, the Motor Accidents Compensation Act1999. Basten JA (with whom Handley and McColl JJA agreed) said at [60]:

“Accordingly, the weight of authority under the 1988 Act in this court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could prove a satisfactory explanation for delay in commencing proceedings.”

That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 at [22] (Beasley and Tobias JJA agreeing) in relation to the 1999 Act.”

61. The defendant relied upon Coal & Allied v Stringer, supra, which again involved the Court of Appeal considering a different limitations provision pursuant to s 60E of the Limitation Act 1999 (NSW). After referring to his judgment in Itek Graphix, supra, Ipp JA said:

“35 I accept that acting on legal advice in letting a limitation period expire may be a significant factor in granting leave to commence proceedings out of time. But that would require, at least, evidence that the advice was misguided, or proof that new evidence has been discovered, or (subject to all relevant facts being disclosed) perhaps that the applicant for leave acted with due diligence and is not personally to blame for the delay (the significance of such a factor arising, it may be, by reason of s60E(1)(g)). But the opponent did not approach the matter on this basis and the evidentiary foundation for it was not established.

36 Generally speaking (in the light of the rationales of limitation statutes as explained by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554), where a party has made a deliberate and informed decision on legal advice to allow a limitation period to expire, broad considerations of justice do not require time to be extended simply because the lawyer changes his mind or a new lawyer gives different advice – even when no actual prejudice has been proved. In my view, ordinarily, something more must be shown to warrant a grant of leave.”

62. Here, there is ample proof of what Mr Gray did, and omitted to do on the plaintiff’s behalf. At no relevant time was the plaintiff advised or made aware of either the three year limitation period or the need for him to comply with the machinery provisions of WIM Act. He was not personally liable for the delay.

63. I am therefore satisfied that there has been a satisfactory explanation for the delay. Whilst there was admitted fault by the plaintiff’s solicitor, that fault should not be sheeted home to the plaintiff.

64. What is also clear from the evidence is that the workers compensation insurer of the New South Wales Police Force accepted the plaintiff’s psychological injury claim back in November 2007. That insurer had ample opportunity to investigate the plaintiff’s claim and his medical condition before and after that date. I am therefore satisfied that the presumptive prejudice relied on by the defendant does not amount to “significant prejudice” (as defined in Hornby, in [45] above).

65. I am therefore satisfied that a fair trial of the issues in this case can take place, notwithstanding the effluxion of time. I therefore intend to exercise my discretion to grant leave to the plaintiff to commence proceedings, nunc pro tunc, by way of the Statement of Claim filed on 19 November 2014 at Lismore.

Orders

66. I make the following orders:

1. I grant leave to the plaintiff to commence proceedings by way of the Statement of Claim, filed on 19 November 2014 at Lismore.

2. The costs of the Motion are to be the plaintiff’s costs in the cause.

3. Grant liberty to the parties to apply on 7 days notice for any special costs order.

4. The file is be returned to the Lismore Registry.

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Decision last updated: 26 June 2015