Fitzgerald v State of New South Wales

[2019] NSWSC 1439

Supreme Court

New South Wales

Medium Neutral Citation:

Fitzgerald v State of New South Wales [2019] NSWSC 1439

Hearing dates:

3 June 2019

Date of orders:

23 October 2019

Decision date:

23 October 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The plaintiff is granted an extension of time within which to commence proceedings against the defendant up to and including 27 November 2015.

 (2) Costs are reserved.

Catchwords:

LIMITATION OF ACTIONS — Application for extension — Limitation Act 1969 (NSW) ss 60G, 60I — Where the plaintiff was unaware of the connection between the personal injury and the defendant’s act or omission — Whether the plaintiff “ought to have become aware” of the connection — Where the plaintiff police officer had been medically discharged from work in relation to his psychiatric injuries

Legislation Cited:

Limitation Act 1969 (NSW), ss 58, 60F, 60G, 60I, 60J, 60L

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1
Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209
Dedousis v Water Board (1994) CLR 171
Drayton Coal Pty Ltd v Drain [1995] NSWCA 131
Harris v Commercial Minerals Limited (1996) 186 CLR 1; 135 ALR 353
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Payne v Jonkers Enterprises Pty Ltd [2004] QSC 447
Pearce v Commonwealth of Australia [2006] NSWCA 210
Prince Alfred College Inc v ADC (2016) 258 CLR 134; (2016) 335 ALR 1
State of New South Wales v Gillett [2012] NSWCA 83
State of New South Wales v Judd [2003] NSWCA 355
State of Queensland v Stephenson (2006) 226 CLR 197; (2006) 227 ALR 17
Sydney City Council v Zegarac (1998) 43 NSWLR 195

Category:

Procedural and other rulings

Parties:

Bede Gregory Fitzgerald (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
K Andrews (Plaintiff)
M Hutchings (Defendant)

  Solicitors:
De Luca-Leonard (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2015/349923

Publication restriction:

Nil

Judgment

1. HER HONOUR: By notice of motion filed 11 April 2018, the plaintiff seeks an order pursuant to s 60G(2) of the Limitation Act 1969 (NSW) that the time in which the plaintiff may bring proceedings against the defendant be extended up to and including 27 November 2015. The defendant opposes the orders sought.

2. The plaintiff is Bede Gregory Fitzgerald. The defendant is the State of New South Wales. The parties relied upon two joint court books which included two affidavits of Moya Regina de Luca-Leonard sworn 18 April 2018 and 27 March 2019, as well as the affidavit of the plaintiff sworn 27 February 2017 and his supplementary statements.

3. The plaintiff alleges in his claim that between 10 December 1979 and 4 October 2001 he performed duties for the New South Wales Police Force (“NSWPF”) at a variety of stations within New South Wales. The plaintiff alleges that as a result of being exposed to various traumatic incidents identified in his statement of claim, he suffered injury by way of post-traumatic stress disorder (“PTSD”). The plaintiff alleges that his PTSD was caused by the defendant’s negligence and breach of the duty of care it owed to him. I shall set out the particulars of the breach of duty of care later in this judgment.

4. In his affidavit dated 27 March 2019, the plaintiff adopted his earlier statement dated 27 February 2017. He also relied upon his evidentiary statement dated 22 April 2018 (annexed to the affidavit of his solicitor Ms de Luca-Leonard sworn 10 April 2018) and outlined some minor amendments that have now been corrected.

Background

5. For the purposes of this application, I have taken the plaintiff’s case at its highest. The plaintiff’s evidence is as follows.

6. The plaintiff was a member of the NSWPF from 10 December 1979 until he was medically discharged on 4 October 2001. His last day of active duty was 21 July 1999.

7. On 23 March 2000, the plaintiff applied for a medical discharge in relation to his PTSD and medical conditions to his back and neck. In a report dated 18 January 1996, psychologist Mr F McCombie stated that the plaintiff told him that he had been suffering from severe anxiety and depression for at least four years. The plaintiff stated that he felt that he had been traumatised by a long history of incidents, had been unable to ask anybody for support and now suffered a great deal of distress. In a latter report, Mr McCombie opined that the plaintiff was presently suffering from an exacerbation of his underlying depression and anxiety. He thought the plaintiff was suffering from a “depressive disorder”.

8. As part of his application, the plaintiff included a chronological account of events entitled, “REASONS I BELIEVE PREVENT ME FROM PERFORMING POLICE DUTIES OF MY OFFICE.” The document outlined various traumatic events which the plaintiff experienced while on duty with the NSWPF.

9. In January 1999, the plaintiff first noticed a tightening in his chest. He complained to his doctor, Dr Ellis Abbott. Although the tightening sensation cleared by about April 1999, since that time he has suffered from occasional chest pain. On 18 November 2009, Dr W D Wade, consultant psychiatrist, diagnosed the plaintiff with PTSD. The plaintiff says that Dr Wade told him, “I am diagnosing you with PTSD, chronic in duration, with mixed anxiety and depression and melancholic features”.

10. In about mid-2001, the plaintiff began to suffer flashbacks and nightmares which resurfaced traumatic events he had experienced at work. He also experienced physical symptoms of sweating, nausea, chest pains, irregular heartbeat, pins and needles in his extremities, difficulty sleeping, loss of appetite, grinding of his teeth, stiffness in the back of his neck and tension and knotting in his belly. The plaintiff felt irritable, stressed and anxious. His relationship with his wife became strained.

11. Dr Abbott has recorded that the plaintiff suffered from high blood pressure, chest pain and anxiety every year from 2008-2012. Dr Abbott referred the plaintiff to a heart specialist in Sydney, Dr Ross Walker.

12. The plaintiff’s wife has cared for him as necessary over the years, especially in the two periods between November 1998 to July 1999 and April 2001 to August 2004. During those months, his wife managed his medication, organised his meals, reminded him to dress, shower, brush his teeth, go to and get out of bed, and participate in the aspects of daily functioning. Some of that care was active, such as cooking, and some was more passive, such as calming him during nightmares and flashbacks and watching to ensure he did not attempt self-harm. The plaintiff estimates that his wife provided care of this kind for about 50 hours per week.

13. The plaintiff says that between about September 2004 and August 2015, his wife managed certain aspects of his care such as reminding him to take his medication and monitoring his food and alcohol consumption, about 5 hours per week. He says he has felt “disconnected” from his wife in his mind, which he has not been able to improve through communication. During this period, he continued to be treated for his injuries and disabilities including through medication, monitoring, and counselling with partial success.

14. During the period between September 2004 and August 2015, the plaintiff worked part-time as a courier driver, cashier and service officer. He worked in accordance with the recommendations of his doctors, keeping in mind goals of rehabilitation, avoiding unhealthy rumination on the past and managing PTSD symptoms of anger and sadness by distracting himself with work.

15. In about August 2016, it became too difficult for him to continue with work, as his PTSD symptoms were interfering with his job performance. The plaintiff was becoming emotional with customers and experienced flashbacks and day terrors while at work. On the advice of his doctors, he discontinued work and is now surviving on a pension. The plaintiff presently suffers from insomnia. He feels tired, unconfident, easily distracted, paranoid and washed out.

16. The plaintiff manages his injuries and disabilities with medical treatment, regularly seeing his general practitioner, psychiatrist and psychologist. With their input, his symptoms have stabilised.

17. The plaintiff believes that he is unable to work any longer. His early retirement has distressed him greatly, as he had planned to work into his 70s. He prided himself on police work and identified strongly with ideas of fairness, justice and helping the community. He feels deflated by his new lifestyle and isolated from his community. He misses the sense of satisfaction he received from helping others.

First contact with Ms de Luca-Leonard – 24 July 2015

18. On about 24 July 2015, the plaintiff first spoke to his solicitor Ms de Luca-Leonard by telephone. After introducing himself, he said that he had just spoken with Nathaniel Gillett (“Nat”). Nat is the plaintiff in State of New South Wales v Gillett [2012] NSWCA 83 (“Gillett”). The plaintiff knew Nat from the police force when they were both police officers.

19. The plaintiff told Ms de Luca-Leonard that Nat had suggested she might be able to advise the plaintiff about bringing a claim against the police force in relation to his psychiatric injuries. He asked Ms de Luca-Leonard whether he may have a claim against the NSWPF.

20. Ms de Luca-Leonard asked him whether he had made or been advised about any claims. The plaintiff replied that he had made claims for hurt on duty benefits and for victim’s compensation. He informed Ms de Luca-Leonard that he could provide her with copies of his applications for hurt on duty benefits from 1998 and 2000, his application for medical discharge dated 23 March 2000, and for his associated pension entitlements. The plaintiff told her that he had been told by his previous lawyers that these were the only legal claims available to him.

21. When Ms de Luca-Leonard asked the plaintiff to recount the history of work events he considered to be relevant to his claim, he said that he had documents that set out the major incidents he encountered during his career as a police officer, and that he had been diagnosed with PTSD. Ms de Luca-Leonard advised him that she would read those papers and give him some preliminary advice. She also said that she needed the file from his previous solicitors, and asked if he could sign an authority to release to her.

22. The plaintiff delivered the relevant papers that same day. Ms de Luca-Leonard looked them over, then handed him some other documents and said words to the effect of, “I invite you to read a number of documents I am giving you now. Once you have read them, please come and see me again. In the meantime, I will read the papers you have given me and give you some preliminary legal advice.”

23. The documents she gave the plaintiff included a Task Force Alpha Report, Delaforce Report, Jan Westerink Report, Umbudsman Report to Police, and a document titled “Instruction 12” (“the documents”). These documents outlined risks to policing, and certain steps that might have been taken by the NSWPF to mitigate or avoid injury to police officers.

24. The plaintiff signed an authority to release the documents from Walter Madden Jenkins, his previous solicitors, and from Whitelaw McDonald, who acted and were to continue to act in his superannuation pension increase claims. The plaintiff asked Ms de Luca-Leonard to send the authority to Walter Madden Jenkins and receive their files without delay. He also sought a copy of his police file.

25. On 3 September 2015, the plaintiff received a letter from Ms de Luca-Leonard, as she had foreshadowed when they first spoke (Exhibit “A” to statement 27 February 2017). He arranged a flight from Coffs Harbour to see her at her office at Miranda, Sydney.

The conference – 15 September 2015

26. On 15 September 2015, the plaintiff had a conference with Ms de Luca-Leonard. At that conference, Ms de Luca-Leonard asked the plaintiff if he had been aware of the matters set out in her letter dated 3 September 2015 before he had read it. The plaintiff said that he had never seen those documents before or even known they existed.

27. Ms de Luca-Leonard showed the plaintiff the documents again and asked him if he had been aware of their contents before the conference. The plaintiff said that he had not been made aware of them until 15 September 2015, and that they had never been brought to his attention by the NSWPF.

28. The plaintiff says that the documents provided evidence that the NSWPF could have taken various steps in response to the incidents he suffered during his time on the force, but did not. For example, the plaintiff was not offered counselling after any major trauma suffered while on duty, which he believes might have alleviated the mental illness he developed. He says he had asked the NSWPF to facilitate access to a qualified therapist, both for himself and for his fellow officers. No such resource was ever granted.

29. Ms de Luca-Leonard told the plaintiff that in framing his case, they should connect the traumatic incidents he suffered during his police career with the injuries and disabilities he had developed, and then consider whether any actions set out in the documents, if actioned by NSWPF, might have reduced those injuries and disabilities. The plaintiff instructed Ms de Luca-Leonard to issue a brief to counsel.

Conference with counsel and his solicitor – November 2015

30. In November 2015, the plaintiff and his solicitor attended a conference with Mr Kelvin Andrews of counsel. It is the plaintiff’s evidence that it was only at this conference that he first heard and understood that the NSWPF had a duty of care to him while working as a NSW police officer. He says it was only at this conference that he understood the connection between the work incidents and the failure of the NSWPF to take any of the actions outlined in the documents, thus giving rise to a claim in negligence. The plaintiff’s understanding of counsel’s advice was that he had a claim with merit against his employer for a breach of its duty of care to him, which caused the mental injury and disability from which he suffers.

31. After the conference, the plaintiff received a draft statement of claim from Ms de Luca-Leonard which he read and approved. He instructed Ms de Luca-Leonard to file the statement of claim alleging negligence causing his mental disability.

32. The statement of claim was filed on 27 November 2015.

Report of Dr Neil Adams – 2 March 2016

33. On 2 March 2016, the plaintiff’s solicitor obtained a report of Dr Neil Adams, a safety management and ergonomic consultant. I have set out his concluding comments, as they establish that the plaintiff had a viable cause of action or, to put it another way, a real case to advance. Under the heading “5.1 Regarding cause”, Dr Adams opined that he had “little doubt” that the plaintiff’s exposure to distressing and traumatic situations during his years of service in the police force had resulted in “PTSD or a level of psychological disturbance not markedly less”. Dr Adams wrote, “The increasing exposure that [the plaintiff] encountered, with no effective critical incident stress debriefing or other form of counselling following any of the repeated exposure to trauma and death, would have eventually exacerbated his stress levels beyond his coping limit”.

34. Under the heading “5.2 Regarding probability/foreseeability”, Dr Adams considered it “quite probable that [the plaintiff], as would any person who was not extremely psychologically resilient and/or who was not given appropriate support…might suffer a PTSD or some other form of stress disorder”. Dr Adams gave the opinion that the probability of the plaintiff developing these disorders would have been obvious to the police force. General information about the causes and effects of occupational stress and PTSD were available to the NSWPF before the plaintiff’s commencement of employment. Dr Adams opined that the NSWPF had assumed knowledge of the kinds of situations to which an officer would be exposed, and that the repeated exposure would have a cumulative effect. He stated that the lack of any effective psychological preparation or post-incident support in the course of the plaintiff’s employment would have had “an intense psychological effect, with the potential for equally intense and possibly lasting psychological consequences”. Dr Adams considered that it was entirely foreseeable that the plaintiff would be cumulatively stressed and eventually succumb to its effects.

35. Under the heading “5.3 Regarding preventability”, Dr Adams gave opinions similar to those contained in the documents which Ms de Luca-Leonard gave to the plaintiff. Dr Adams also referred to a 2007 report which addressed the awareness within the Police Force of relevant preventative measures that might have been taken to mitigate the injury to police officers arising from work-related trauma. Although Dr Adams acknowledged that many of these preventative measures would only have been known near the end of the plaintiff’s service on the NSWPF, there was relevant information available to the defendant before that time.

The pleading in the amended statement of claim

36. By amended statement of claim (“ASC”), the plaintiff pleads that he was exposed to trauma in 1983 (if not before) and repeatedly thereafter.

37. The plaintiff alleges that the defendant breached its duty of care to him by failing to implement a safe system of work which would prevent and/or reduce the risk of “psychological/psychiatric injury”. He alleges that repeated exposure to trauma caused him harm.

38. In summary, the cause of action is said to have accrued from the defendant’s acts or omissions as follows:

1. in failing to institute, supervise or maintain a safe system of work, or work environment, such as to address the risks of harm to the plaintiff; or

2. in failing to warn or educate the plaintiff about the risks of harm to his mental or psychological or emotional health arising from a failure to intervene, treat or monitor the symptoms of work-related mental, psychological or emotional trauma, depression or PTSD; or

3. in failing to warn the plaintiff that failure to implement a safe system of work, or work environment, might cause the plaintiff to suffer significant or long-term significant mental illness including depression or PTSD; and

4. despite the plaintiff’s complaints of distress from overwork, exposure to trauma, and other work-related problems as a police officer, and despite the plaintiff's requests for the defendant to intervene or to help him alleviate the impact of the things he complained of any time before he went off hurt on duty.

39. The defendant identified a shooting incident of 20 November 1998 as having “a profound effect” upon him, but stated that he experienced additional stressors before and after, including immediately before he went off duty in July 1994.

40. The particulars of negligence alleged against the defendant which are relevant for present purposes include that:

1. the defendant had access to various written instructions or expert advices (including the documents which Ms de Luca-Leonard provided to the plaintiff) at times during the plaintiff's work as a police officer, and did not convey information from the instructions, or give or inform the plaintiff of such instructions or implement them in respect of the plaintiff or his place of work, before the plaintiff left work; and

2. although the knowledge or implementation of the instructions, or compliance with the duties arising from them, might foreseeably have avoided or reduced the risk of the plaintiff's injuries or disabilities, particularly those which are continuing such as inability to avoid ruminations, nightmares and flashbacks to distressing incidents, such as to interrupt cognitive thinking or restful sleep;

3. the defendant breached its duty of care to the plaintiff; and

1. the breach of that duty as particularised came home to the plaintiff as significant long-term injury and disability and was a necessary condition of the harm to the plaintiff.

41. The particulars set out in the ASC accord with the opinions of Dr Adams, even though Dr Adams’ report was prepared after the ASC was filed.

The law

42. The plaintiff relies upon ss 60G and 60I of the Limitation Act. Section 60G falls within subdivision 3, Division 3, Part 3 of the Limitation Act.

43. The purpose of subdivision 3 is set out in s 60F. It reads:

“60F Purpose of this Subdivision

The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.”

44. Clause 4 of Schedule 5 of the Limitation Act reads:

“(1) Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, …

…

(3) Section 60G and 60H so apply;

(a) Whether or not a relevant limitation period has expired;

(i) Before 1 September 1990, or

(ii) Before an application is made under either of those sections in respect of the cause of action, and

(b) Whether or not an action has been commenced on the cause of action before 1 September 1990, and ...

(4) The court may make an order under Section 60G in relation to a cause of action referred to in this clause, if an application for such order is made within

(b) The period of 3 years referred to in s 60I, or

…”

45. Pursuant to s 60J, an order may not be made under subdivision 3, Division 3, Part 3 of the Limitation Act unless the time has expired for the making of an order under subdivision 2. Section 60J reads:

“60J Operation of this Subdivision

An order may not be made under this Subdivision in relation to a limitation period unless the time has expired for the making of an order under Subdivision 2, but nothing in this Act prevents the making of orders under section 60D(2)(a) and section 60H(2)(b) in relation to the one matter.”

46. In these proceedings, the time for making an order under subdivision 2 has expired.

47. Section 60G of the Limitation Act reads:

“(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, …

(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.”

48. Section 60I identifies the matters that the Court must take into account determining an application under s 60G. It reads:

“(1) A court may not make an order under s 60G or s 60H unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal 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 three matters listed in paragraph (a)(i)-(iii).

(2) Subsections (2), (3) and (4) of section 60E apply with any necessary adaptions, in relation to applications for orders under this Subdivision.”

49. The plaintiff seeks to rely upon s 60I(a)(ii), on the basis that he was unaware of the nature or extent of the personal injury suffered, or upon s 60I(a)(iii), on the basis that he was unaware of the connection between the personal injury and the defendant’s act or omission.

50. Section 60I involves an examination of the plaintiff’s knowledge of the three threshold factors set out in s 60I(1)(a), and in particular, that of which the plaintiff became aware last. The statement of claim was filed on 27 November 2015. In this case, the examination under s 60I will therefore focused on the plaintiff’s state of knowledge as at 27 November 2012, and the date when the plaintiff became aware or ought to have become aware that he had suffered personal injury, its nature and extent, and its connection to he defendant’s act or omission, whichever is the latter (see s 60I(1)(a)(ii) and (iii)). The onus of proof rests upon the applicant: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1 (“Taylor”).

51. The plaintiff submitted that his statement of claim filed 27 November 2015 outlines a viable cause of action in negligence against the defendant for damages he sustained in the course of his police duties. The defendant submitted that on the contrary, the plaintiff has not demonstrated a prima facie case in relation to the defendant’s failure to devise, institute and maintain a safe system of work so as to avoid the plaintiff’s injury. The defendant argued that the plaintiff has not articulated or established how the defendant could have protected him from the alleged injury. I do not agree. The allegations outlining how the defendant could have protected the plaintiff are set out at [40] of this judgment. Hence, for the purposes of this application only, and accepting the views expressed by the plaintiff’s expert Dr Neil Adams, I accept that the plaintiff has a viable cause of action.

Section 60I(1)(a)(ii)

The plaintiff’s submissions

52. The plaintiff submitted that it is uncontroversial that s 60F is an overview provision, and that the plaintiff's case must rest on the operative provisions: Dedousis v Water Board (1994) CLR 171 at [16]. There is also no dispute that the plaintiff knew that he had suffered the alleged injuries and that they were significant on 4 October 2001, the day he lodged his application for discharge from the police force on medical grounds. As such, no reliance is placed on s 60I(1)(a)(i).

53. The cause of action in tortious liability accrued between 1990 and 2002. The plaintiff worked prior to 21 July 1999, when he was hurt on duty and went off work. He was prevented from returning due to his significant PTSD and depression, and was ultimately medically discharged from duty as a police officer with the NSWPF on 4 October 2001.

54. The determination under s 60I(1)(a)(ii) concerns the plaintiff’s awareness of the nature or extent of his personal injury. The plaintiff argued that in 2001, he lacked the requisite awareness. After his discharge from duty as a police officer, he returned to the workforce in September 2004, but says that it was only in August 2015 it became too difficult for him to work due to the PTSD symptoms he suffered. He notes that he was forced to leave the workforce after becoming angry, sad and irritable, and experiencing flashbacks and day tremors while at work. It was also around August 2015 that the plaintiff’s wife began to do more things for him, including cooking, cleaning, reminding him to take medication and supporting him through memories and flashbacks. By October 2016, the plaintiff believed he was unable to work any longer.

The defendant’s submissions

55. The defendant submitted that the plaintiff knew of the injury and of its extent before August 2015, and that he cannot demonstrate otherwise. The plaintiff made an application for medical discharge from the NSWPF in 2001 on the basis that he suffered from PTSD and a depressive order. The injury was determined to be so severe that it precluded him from continuing to work as a police officer.

56. Consideration

57. The test of knowledge posed by s 60I(1)(a)(ii) requires the Court to look at the plaintiff’s actual awareness. Neither the reasonableness of that awareness, nor constructive knowledge, is an element of s 60I(1)(a): see Harris v Commercial Minerals Limited (1996) 186 CLR 1; 135 ALR 353 (“Harris”) at 359. Harris is a case of a disease of gradual onset.

58. The nature or extent of the plaintiff’s injury is to be determined as an objective fact as at the date of the hearing of the application. A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if, during that period, he was aware of the effect which the injury was having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. In particular, if a plaintiff was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expects, the applicant will be considered to have been aware of the extent of the injury: see Harris at 359.

59. The plaintiff’s symptoms of PTSD and depressive disorder are outlined in detail earlier in this judgment. They began to manifest in 1999 and have fluctuated in intensity. On 4 October 2001, his injuries were determined to be so severe that they precluded him from continuing to work as a police officer. The NSWPF accepted his application for medical discharge.

60. During the periods from November 1998 to July 1999, and then again from April 2001 to August 2004, the plaintiff says that he required about 50 hours assistance per week from his wife. From 2004 until August 2015, the plaintiff enjoyed a period of greater functionality, and was able to work as a courier, cashier and service officer. Because his symptoms of PTSD were less severe, he required less assistance from his wife. However, in 2015 the plaintiff’s condition intensified.

61. I accept that the plaintiff became aware in August 2015 that his wife had been doing more things for him including cooking, cleaning, reminding him to take medication and supporting him through memories and flashbacks. He was aware by 4 October 2016 that he was no longer able to work.

62. However, although the plaintiff’s symptoms of PTSD intensified in 2015 after a period of decreased severity, he had become aware in 2001 of the nature of his PTSD and depression. In my view, it was at this time that the plaintiff can be said to have been aware of the effect the PTSD and depression was having upon him and of their cause, even though he did not foresee the likely consequences. If the consequences of the PTSD and depression are of a kind that the plaintiff expects, he is to be considered to have been aware of the extent of the injury: see Harris at 359.

63. For these reasons, it is my view that the plaintiff was aware of the nature and extent of his injuries by 4 October 2001, when he applied to the NSWPF for a medical discharge. As such, the plaintiff’s claim under s 60I(a)(ii) fails.

Section 60I(a)(iii)

The plaintiff’s submissions

64. The plaintiff submitted that it was only after 24 July 2015, when he was given the documents and legal advice from his solicitor, that he became aware of the relevant connection between his injury and the defendant’s failure to act to prevent it. He says that before that time, he was not aware he had a cause of action against the defendant for breach of its duty of care to him.

65. The plaintiff submitted that it was also after 24 July 2015 that he retained Ms de Luca-Leonard as his solicitor, accessed the documents, sought out the liability report from Dr Neil Adams and received counsel's advice.

66. The plaintiff submitted that he was unaware of the information contained in the documents because the defendant failed to disclose it. This failure to disclose forms an aspect of the plaintiff’s claim for breach of duty of care against the defendant.

67. The plaintiff submitted that although on 9 October 2001 the commissioner delegate of the workers compensation branch of the NSWPF accepted the plaintiff’s injury as “infirmity” which was “caused” by “the member being hurt on duty”, the plaintiff was then only aware that he had a claim for benefits. He says he was not aware that he could bring the present cause of action against the defendant in negligence.

68. After first receiving advice from his current solicitor on 24 July 2015, the plaintiff says he exercised diligence in commencing his case by 27 November 2015.

69. The plaintiff argued that for the purposes of s 60I(a)(iii), he was not aware as a matter of law on 4 October 2001 of the connection between his personal injury and the defendant’s acts or omissions. The plaintiff submitted that the wording of subs (a)(iii) identifies the nature or quality of a relevant further fact. The further fact must identify, sufficiently, but not necessarily as a matter of law, the relevant “connection between the personal injury and the defendant’s act or omission”. The plaintiff submitted that the facts which arose to the plaintiff in the 3 years prior to 27 November 2015 differ from those known to him on 4 October 2001. As such, the Court should grant an extension of time.

The defendant’s submissions

70. The defendant referred to Drayton Coal Pty Ltd v Drain [1995] NSWCA 131 (“Drayton Coal”), where the Court of Appeal per Gleeson CJ stated:

“For the purposes of a case such as the present the decision of the High Court in Dedousis establishes the following propositions:

1. Section 60F is no more than an introductory provision that indicates the purpose of subdiv 3. It is in s 60l(l), and not in s 60F, that the requirements to be satisfied by a plaintiff are to be found.

2. The requirement, in s 60(l)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiff’s personal injury and the defendant’s act or omission, is not identical to a requirement (of a kind which might be inferred from s 60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference).

3. Section 60l(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (e.g. actionable negligence), and the plaintiff’s awareness of that legal complexion, is not what matters for the purpose of s 60l(l).

4. The acts or omissions referred to in s 60l(l)(a)(iii) are acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time).

5. If a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then s 60l( 1) (a) (iii) will be satisfied.

6. Even so, it will still be necessary for the court dealing with the application for an extension of time to decide whether, under s 60G(2), it is just and reasonable to extend the limitation period.”

71. The defendant also referred to State of New South Wales v Judd [2003] NSWCA 355, where the Court of Appeal held that in respect of s 60I(1)(a)(iii), the test to apply is whether the applicant knows the facts, not whether he is aware of their legal significance. The question is one of actual subjective knowledge or awareness: see Harris.

72. The defendant submitted that the plaintiff’s application for medical discharge shows that he understood that there was a connection between his personal injury and his work for the NSWPF. The question is whether he knew of the connection between the injury and any alleged omission of the NSWPF. The defendant submitted that the plaintiff has not established that he did not possess the requisite knowledge.

Consideration

73. In Gillett, although dealing with 50D of the Limitation Act, the Court of Appeal stated at [84]:

“[84] In Drayton Coal, Gleeson CJ (Priestley and Meagher JJA agreeing) considered that questions of degree may be involved in determining whether a plaintiff was unaware of the connection between the personal injury and the defendant acts or omissions. His Honour stated, at 7:

‘…a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some act or omission on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at a trial. The mere fact that plaintiffs’ lawyers can think up some act or omission, upon which they will wish to place some reliance at trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission; which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii).’”

74. As at 4 October 2001, the plaintiff knew that he had a significant injury which prevented him from performing his duties as a police officer, and was aware that the proper respondent for his workers compensation injury was the insurer of the police service. After he was discharged from the NSWPF, the plaintiff had sought legal advice and was advised that he could apply for hurt on duty benefits, medical discharge, associated pension entitlements, workers compensation payments and claims for s 12D victim compensation. I accept that he was diligent in finding out what legal rights were reasonably available to him. The plaintiff sought out, retained, and acted upon legal advice from various advisors. Among the available options, he was advised to pursue claims in workers compensation, victims compensation, and pension increase. He received legal advice that no other actions were available to him throughout that period of time after 4 October 2001 until he finished his part-time work in mid-2015 and saw Mr Nathaniel Gillett.

75. It was only in late August 2015, when the plaintiff realised that due to his worsening symptoms of PTSD he could no longer work, that he spoke to Nat. Nat told him, “You know, you might have a case.” The plaintiff explained to Nat that he had already made legal claims between 1998 and 2000. Nat replied, “No, I am not talking about those claims. You may be able to sue the police for what happened to you. Ask Moya, my solicitor.”

76. The plaintiff consulted Ms de Luca-Leonard, who provided him the documents illustrating the various interventions and resources the NSWPF could have provided the plaintiff to prevent or reduce his injury. It did not take any of the available steps. He was not offered any counselling, even when he had requested it, nor was he offered training in self-help strategies.

77. In November 2015, the plaintiff and his solicitor attended a conference with counsel, Mr Kelvin Andrews. It is the plaintiff’s evidence that it was only at that conference that he understood that the documents he was given informed the duty of care that the NSWPF had to him when he was a police officer. It was only then that he understood that the NSWPF’s failure to implement any of those strategies to mitigate his psychological injuries gave rise to a claim in negligence. The plaintiff’s understanding of what counsel said to him was that he had a claim with merit against his employer for a breach of its duty of care to him, and that the breach, over many months or years, caused the mental injury and disability from which he suffers. I accept this evidence. It is my view that it was in August 2015 at the earliest, but more likely in September 2015, that the plaintiff became aware of the connection between his PTSD and depression and the defendant’s acts or omissions. The plaintiff has satisfied the requirements of s 60I(a)(iii).

“Ought to have become aware” – s 60i(1)(b)

78. Section 60I(1)(b) proscribes the Court from making an order under ss 60G or 60H unless it is satisfied that the application is made within three years after the plaintiff became aware, or ought to have become aware, of the three matters listed in s 60I(1)(a).

79. The defendant submitted that the plaintiff ought to have known of the connection between his injury and the defendant’s acts and omissions before August 2015.

The plaintiff’s submissions

80. The plaintiff submitted that the relevant test for whether he “ought to have become aware” of the matters outlined in s 60I(1)(a) is whether he took all such action reasonably necessary to find the knowledge: see Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 (“Shaw”) per Basten JA.

81. The plaintiff argued that the defendant ignored his requests for support when he was a police officer, and kept him ignorant of the available resources that may have assisted him. The plaintiff submitted that the plaintiff’s lack of awareness of the matters outlined in s 60I(1)(a) of the Limitation Act was directly affected by the defendant’s failure to disclose this information.

82. It was in August 2015 that Mr Gillett recommended that the plaintiff seek legal advice from Ms de Luca-Leonard about what claims he might be entitled to make against the defendant. The plaintiff submitted that he then acted expeditiously in engaging Ms de Luca-Leonard as his solicitor, reading the documents she provided to him and seeking the advice of counsel. I have outlined these steps in more detail under the previous heading.

83. The plaintiff submitted that he brought his case when he knew to do so. He could not have brought his case before 24 July 2015, as he lacked the necessary awareness. He says it was only at this time that he connected the documents to the trauma he suffered. He submitted that the key issue to be decided is whether at all relevant times, he was unaware of the connection between the personal injury and the defendant's acts.

84. The plaintiff submitted that a reasonable man would not think to look beyond the advice of his lawyers, over many years, to ask what else he could do to claim in respect of his injuries. The plaintiff submitted that he was entitled to rely on that legal advice, which before 24 July 2015 had not included that he might have a claim in negligence.

Defendant’s submissions

85. The defendant referred to Pearce v Commonwealth of Australia [2006] NSWCA 210, where Basten JA (with Handley and Ipp JJA agreeing) held at [33]):

“[33] So much may be accepted: the critical question is by what criteria a normative judgment should be made as to whether he ‘ought’ to have taken steps through which he probably would have become aware of the fact that he had suffered an injury. As noted in Shaw at [32]-[33], there is some awkwardness in asking whether a person ought to have sought medical treatment, in order to be allowed to bring legal proceedings against the person who may have caused or contributed to the condition from which the person suffers, the relevant criterion being his own responsibility for his continuing ignorance. Factors which might make it inappropriate to conclude that the plaintiff ‘ought’ to have taken steps which would have resulted in him obtaining knowledge that he had suffered an injury may include, depending on the circumstances:

(i) any known link between the injury and the failure to take such steps;

(j) any conduct of the prospective defendant which may have discouraged the taking of such steps;

(k) particular characteristics of the plaintiff which may have discouraged the taking of such steps; and

(l) the likelihood, in the plaintiff's mind, that such steps would be appropriate for the purpose for which they were taken, which will probably be to obtain advice as to appropriate medical treatment.”

86. The defendant submitted that the plaintiff cannot demonstrate any of these factors. Again, the defendant argued that the plaintiff's knowledge at the time that he prepared his application for medical discharge shows that the plaintiff understood that there was a connection between his personal injury and his work for the police force.

87. The question is whether the plaintiff knew of the connection between the injury and any alleged omission of the NSWPF. The defendant submitted that the plaintiff has not established that he did not possess the requisite knowledge.

88. In Shaw at [30]-[31], Basten JA commented upon the normative element of s 60I(1)(b) in the following terms:

“[30] Paragraph (b) requires the Court to be satisfied that the application to extend time was brought within three years of the date when the plaintiff became aware or ought to have become aware of the relevant matters specified in paragraph (a). Thus, even if the date of actual awareness falls within the three-year period, the Court is required to consider whether the plaintiff ought to have become aware of the last of the relevant matters at a date prior to the commencement of that period.

[31] It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed) in relation to this issue) adopted a concept of ‘constructive knowledge’, as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530:

‘In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out.’”

89. In Shaw, Basten JA further expounded on the issue at [73]-[77]:

“[73] There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne/Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result but that where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome. No attempt was made in the present proceedings to approach the matter in that way. Accordingly, the trial judge not having addressed the issues under par (b) it is necessary to reach a judgment on the material presented.

[74] In my view the plaintiff ought, for the purposes of par (b), to have sought medical advice at an earlier stage and if he had done so, it is likely that he would have become aware of the nature and extent of his illness and its connection with the collision at sea. There are four factors which, cumulatively, lead me to that conclusion. First, it seems not to be in doubt from his own evidence that he was aware of suffering from some form of psychological disorder: see his evidence set out in part at [50] and [51] above. This was not a case in which he was completely unaware of having a problem. Indeed, the primary judge was not satisfied that he was unaware of suffering an injury of a relevant kind. That he did not wish to be told to stop drinking is understandable, but it does not follow that he should now be entitled to bring proceedings to recover financial compensation in respect of the cause of his psychological disorders.”

90. The defendant submitted that the plaintiff cannot demonstrate that he took all such action as it was reasonable for him to take to find out. The defendant argued that if the plaintiff had acted, it is more than reasonable to infer that he would have gained knowledge of each of the matters outlined in s 60I(1)(a) of the Limitation Act. As such, the plaintiff has not established that he can satisfy the requirements of s 60I.

Consideration

91. The issue here is whether after 2001, the plaintiff took all such action as was reasonable for him to take to find out if he had any further legal remedies against the NSWPF. As at October 2001, when the plaintiff was discharged from his position as a police officer, he was aware that he had suffered a significant psychiatric condition as he had been diagnosed with PTSD and depression.

92. A reasonable person after leaving the NSWPF would have been diligent in seeking legal advice concerning the remedies available to him. A reasonable person would have also most likely accepted that legal advice and pursued those remedies. This is what the plaintiff did. He followed legal advice and was successfully awarded various types of compensation. Afterwards, in about 2001, he was told by those lawyers that he had no other legal action available to him. As he had already been awarded compensation, he accepted that advice.

93. What steps would a reasonable person, standing in the shoes of the plaintiff, have done after he had been advised in 2001 that no other legal action was available to him? Would he have gone to other solicitors in the ensuing years in the hope that he may have further legal redress? From 2001 to 2015, the plaintiff was able to work and largely cope with the activities of daily living. In these circumstances, a reasonable person would have continued to work and live as he was. Unless there was something to alert such a reasonable person that he may have some further avenue of redress, he would not have any cause to seek legal advice. When the plaintiff’s condition deteriorated and he could no longer work, he spoke to Nat. Nat’s case was factually and legally different to that of the plaintiff’s, and its judgment was handed down in 2012. In other words, Nat’s case did not assist the plaintiff.

94. After speaking to Nat, the plaintiff immediately sought advice from Nat’s recommended solicitor, Ms De Luca-Leonard. She furnished documents to the plaintiff. These documents were not known to him, nor could it have been expected that a reasonable person would have known of their existence prior to being shown them by the solicitor. It is my view that in these circumstances, a reasonable person in the shoes of the plaintiff would not have taken steps to seek out further legal advice from the end of 2001 in the period no earlier than August 2015.

95. It is my view that under the circumstances, the plaintiff took all such steps that were reasonable. He ought to have become aware of the connection between his injury and the act and omissions of the defendant no earlier than August 2015. On 27 November 2015, the statement of claim was filed, well within the three year limitation period. The plaintiff has satisfied the requirements of s 60I of the Limitation Act.

“Just and reasonable” - s 60G

96. The last issue to be determined is whether it is just and reasonable to extend the limitation period.

97. In Taylor, the High Court considered the nature of the discretion conferred by s 31(2) of the Queensland Limitation of Actions Act 1974. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. In Taylor, Toohey and Gaudron JJ stated at 548:

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

98. To put it another way, the Court must consider whether it is just and reasonable to grant the plaintiff an extension of time. This is perhaps the most important consideration on the question of limitation.

99. In Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, Sheller JA summarised the decision in Tayloras follows at [119]:

“[119] In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

100. The ultimate test in any such application is whether a fair trial can be conducted notwithstanding any delay. In weighing prejudice, its impact upon a fair trial is the primary focus: see Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199.

The plaintiff’s submissions

101. The plaintiff noted that the onus is on the defendant to identify any actual prejudice that would result from an extension of the limitation period: see Zegarac. The defendant conceded that it does not intend to rely on actual prejudice arising in its capacity to defend the case brought by the plaintiff.

102. The plaintiff submitted that as such, the Court is entitled to find there to be no prejudice to the defendant in an extension. This is the very sort of case where the available evidence tends strongly to the finding that the extension should be granted. In the State of Queensland v Stephenson (2006) 226 CLR 197; (2006) 227 ALR 17 the court observed at [27] that time extension applications deal with injustice in denying a claim where the plaintiff did not sue in time “because of the lack of the means of knowledge of a material fact of a decisive character which related to the right of action”. The relevant test is of ignorance in the ordinary sense of the word: see Payne v Jonkers Enterprises Pty Ltd [2004] QSC 447 at [18]. The plaintiff he was ignorant of the cause of action available to him, and deserves statutory protection to manage his case.

The defendant’s submissions

103. The commencement of an action outside the limitation period is prima facie prejudicial to a defendant, who has the benefit of the limitation period: see for example Taylor, per Dawson J at 544 and McHugh J at 553-554. The defendant noted that the operation of a limitation period “may often result in a good cause of action being defeated”: see Taylor per McHugh J at 553-554.

104. In Prince Alfred College Inc v ADC (2016) 258 CLR 134; (2016) 335 ALR 1, French CJ, Kiefel, Bell, Keane and Nettle JJ held at [105]- [106]:

“[105] …Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period...

[106] …Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed...”

105. To properly consider an application for an extension of time in which to commence proceedings, the Court requires a full and frank explanation by the plaintiff as applicant of the circumstances in which the limitation period was permitted to expire. Such an explanation is essential to the exercise of the discretion. The defendant submitted that the plaintiff’s explanation is inadequate.

Consideration

106. I accept after the effluxion of 18 years, memories will have faded and the defendant will suffer some presumptive prejudice in defending the plaintiff’s case. However, the defendant has not provided any evidence to establish actual or significant prejudice.

107. In my view, the plaintiff has provided a full and frank explanation as to the circumstances which led him to allow the limitation period to expire. This is also a case where the documentary evidence of historical facts and relevant matters will originate from various available sources, including both parties, the insurer, the Superannuation Fund, and the public record, which includes victims compensation claims. There will be the documentary evidence of what occurred during and after the plaintiff performed his police duties. There will also be continuous medical records relating to the plaintiff’s mental and physical health throughout the period from 2000 to date. Lay and other witnesses will be available for cross examination.

108. It is my view that in these circumstances, the parties will be afforded a fair trial. It is just and reasonable that an extension of the limitation period be granted.

Costs

109. The defendant seeks its costs of the application and that the plaintiff be ordered that he cannot recover the costs incurred prior to the making of any order to extend time.

110. Section 60L of the Limitation Act reads:

“Without affecting any discretion that a court has in relation to costs, a court hearing an action brought as a result of an order under Subdivision 2 or 3 may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period.”

111. The plaintiff may wish to make submissions on costs as to why s 60L of the Limitation Act should not be ordered. Hence, at this stage, the appropriate order for costs is that costs be reserved.

The Court orders that:

(1)   The plaintiff is granted an extension of time within which to commence proceedings against the defendant up to and including 27 November 2015.

(2)   Costs are reserved.

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Decision last updated: 23 October 2019