Gould v NSW

[2005] NSWSC 1121

CITATION:	Gould v NSW [2005] NSWSC 1121
HEARING DATE(S):	15 & 16 June 2004
JUDGMENT DATE :	15 November 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Application granted in part.

CATCHWORDS:	LIMITATION ACT: application for extension of time - action by former police officer for damages for psychological injury - effects of incidents during police service, including Wood Royal Commission - whether viable cause of action - whether adequate explanation for delay
LEGISLATION CITED:	Crown Proceedings Act 1988 Limitation Act 1969 ss 18A, 60C, 60E, 60G
CASES CITED:	Yu v Speirs [2001] NSWCA 373 Sullivan v Moody (2001) 207 CLR 562 State of NSW v Paige (2002) 60 NSWLR 371 Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ASB-Tech Services Pty Ltd v Doeland & Anor [2003] NSWCA 167 Holt v Wynter (2000) 49 NSWLR 128
PARTIES:	Peter Gould State of New South Wales
FILE NUMBER(S):	SC 20334/2000
COUNSEL:	G Melick SC/J Berg (Plaintiff) G Laughton SC/N Newton (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) Crown Solicitors Office (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

15 November 2005

20334/2000 Peter Gould
v
State of New South Wales


JUDGMENT

1 HIS HONOUR: The plaintiff, Peter Gould, is a former police officer. He has brought proceedings in this Court, pursuant to the Crown Proceedings Act 1988, for damages for psychological injury said to have been suffered as a result of a number of incidents during his police service. The statement of claim was filed outside the three year limitation period set by s18A of the Limitation Act 1969. He seeks an extension of time under s60C of that Act. Another former police officer, Stephen Anthony Reeves, has made a similar application: Reeves v State of NSW [2005] NSWSC 1138. There is some similarity between the background and the issues raised by the two applications, and they were heard together. However, Mr Reeves’ application will be the subject of a separate judgment.

The Plaintiff’s Case

2 The plaintiff with whom I am now dealing, Mr Gould, joined the New South Wales Police Service in November 1970. He retired on medical grounds in February 1998. Over his years of service up to 1996 he had a creditable record and was involved in a wide variety of police work, including duties as an undercover operative with the Drug Squad, investigative work as a detective in various regions and in the Armed Hold-up Unit, and a negotiator with the State Protection Group. By 1996 he had attained the rank of Detective Senior Sergeant and was engaged in Task Force 1, Drug Enforcement Agency.

3 There are nine incidents upon which the claim is founded. They are described in the statement of claim as “traumatic events” and are said to have occurred in the course of his employment as a police officer. From particulars later supplied, it appears that eight of them occurred between 1971 and 1993. It is unnecessary to go to the detail of each of them. On two occasions he was in danger when working undercover. On two occasions he was exposed to the gruesome aftermath of killings, and on another to the particularly distressing results of a fatal motor accident. There was an occasion when he was assaulted by three notorious criminals, another when he saw a colleague run over by a drunk driver, sustaining very serious injuries, and yet another where he was required to supervise a siege situation involving a man armed with a rifle and explosives.

4 However, it is the ninth incident, the plaintiff’s experience of the Wood Royal Commission into the Police Service, which is the centrepiece of this application. On 8 March 1996 he attended the Royal Commission hearing in answer to a summons received the previous day. He sat in an area where he was able to be seen by members of the public and by representatives of the media. A corrupt police officer, whose name had been suppressed, was giving evidence. In the course of that evidence, the officer claimed that the plaintiff had received a share of a bribe paid by a drug dealer. The evidence was publicised, and the plaintiff was named, in the Daily Telegraph on the following day.

5 I should say immediately that he has always denied the allegation and, as will be seen, it was not pursued. Nevertheless, on 11 March 1996 he was stood down from duty, on full pay, until further notice. Two days later he was told that he could return to work, but not to his former position. He was given to understand that he would be placed on what he described as “corridor duties”, meaning duties of an administrative nature rather than the active, investigative work to which he had been accustomed. He sought, and was granted, two weeks leave. On the day he was stood down he addressed his colleagues at Task Force 1, telling them what had happened and saying that he would return. In fact, he did not resume employment with the Police Service and did not undertake any other employment. This he attributes to his psychological condition, and I shall turn to the medical evidence shortly.

6 On 18 March 1996 he saw and read media reports of a statement by senior counsel representing the Police Service in the Royal Commission that most detectives were corrupt and should not be trusted. For a lengthy period during the progress of the Royal Commission he was in contact with a solicitor with the Legal Representation Office, and on a number of occasions he anticipated that he would be called to give evidence in answer to the allegation against him. That never happened. He did attend the hearing in mid-July of that year but was not called. As he left on that occasion, he was confronted by media representatives filming him, holding their cameras close to his face. There was a large number of members of the public in the vicinity. Eventually, at the end of June 1998, he was notified by a letter from the Commander of the Internal Affairs branch that no further action was to be taken against him in relation to his “adverse mention at the Royal Commission”.

7 All these experiences engendered in him a sense of insecurity, and caused him a great deal of distress and embarrassment. On 20 March 1996 he saw his general practitioner, who provided him with a certificate diagnosing stress/anxiety and ulcerative colitis. The doctor prescribed medication, and in mid-April 1996 referred him to a psychologist, Mr Gerard Glancey. He first saw Mr Glancey early in May of that year and has continued consultations with him.

8 In mid-August 1996 he attempted suicide by an overdose of prescription drugs and required admission to hospital. Thereafter, he was treated from time to time by several psychiatrists: Dr John Westrerink, Dr Anthony McCarron and Dr Leo Tsang. From the time he was stood down from police duty he developed a pattern of excessive drinking, which has endured. He also became a regular gambler, which was sometimes excessive but which more recently he has moderated. His social life was impaired and he suffered a number of psychological symptoms, such as insomnia and loss of libido, which are particularised in the statement of claim and need not be repeated.

9 There is a Police Welfare branch, but he was unwilling to approach it as he was embarrassed about discussing what had happened with police colleagues. There is also a Police Psychology Unit, but he did not have resort to it because he thought it was no more than a referral service. As it happens, the relieving Commander of Task Force 1 at the time he was stood down was the other applicant to whom I have referred, Mr Stephen Reeves, then a Detective Inspector. They were friends, and after he was stood down Mr Reeves contacted him to see how he was and to offer him support.

10 In April 1996 Mr Reeves put him in touch with Sergeant Allan McCloskey at the Police Welfare branch, who visited him at his home. He discussed his predicament with Sgt McCloskey and the Sergeant provided him with documentation to obtain leave of absence. They had contact on a number of occasions thereafter. The cost of his medical and psychological treatment, insofar as it was not covered by Medicare, has been met by the Police Service. As I have said, he was discharged from the Service on medical grounds in February 1998. He has since been receiving a pension.

11 This account of the plaintiff’s experience of the Royal Commission and its impact upon him is derived from his affidavit and his oral evidence, together with the history he supplied to Mr Glancey and to a number of psychiatrists, whose reports are also in evidence. Apart from the treating psychiatrists to whom I have referred, there is a report of Dr Robert Wade prepared for the purpose of assessing his pension entitlement, and a medico legal report of Dr Peter Morse. Those reports contain diagnoses variously of major depression, adjustment disorder and alcohol abuse. It is unnecessary to examine them further. It is sufficient to say that they provide evidence of a significant and chronic psychological injury related to his employment (although, as will be seen, focussing upon the Royal Commission). Also in evidence is a report of Associate Professor Richard Bryant, psychologist, obtained on behalf of the defendant. I shall refer to that report later.

The Application

12 As I have said, the application, as filed, seeks an extension of time under s60C of the Limitation Act. Subsection 2 of that section empowers a court to extend the limitation period for up to five years if “it decides that it is just and reasonable to do so…”. At the hearing the plaintiff was permitted to amend the application to add a claim for relief under s60G, which confers upon a court a discretion to extend the limitation period “for such period as it determines”. It was thought that the plaintiff may need recourse to a power of extension unfettered by any upper limit because there might have been a question when a cause of action arose from the first eight incidents relied upon, occurring between 1971 and 1993. The statement of claim was filed on 19 July 2000. However, as will be seen, I do not find it necessary to consider s60G.

Incidents 1 - 8

13 A threshold question in an application such as this is whether the plaintiff appears to have a viable cause of action. That principle was re-stated, and the authorities were reviewed, by Rolfe AJA in Yu v Speirs [2001] NSWCA 373 at [17] ff. As his Honour put it at [17], in determining whether it is “just and reasonable” to extend a limitation period, a plaintiff is obliged “not merely to be able to plead a cause of action which is not susceptible of being struck out, but to prove facts from which the Court can be satisfied that there is, at least, a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing”. It is upon this basis that I am satisfied that the application in respect of the first eight incidents must fail.

14 There is no doubt that those incidents, as described in the particulars supplied, were distressing. However, it appears from the reports in evidence that they formed no part of the history supplied to any of the experts upon whom the plaintiff relies. All those reports are confined to the effects upon the plaintiff of the ninth incident, that is, his experience of the Royal Commission. There is no reference to them in the plaintiff’s lengthy affidavit of 9 October 2002, in which the evidentiary basis of his claim is disclosed. Nor are they referred to in his application for a medical discharge of 8 September 1997, which led to his retirement in February of the following year. Apart from a brief account of some physical injuries which he sustained in the late 1980s and early 1990s, that document also is confined to the effects of the Royal Commission.

15 The particulars supplied to the defendant from which the details of those incidents emerge are referred to in an affidavit of the defendant’s solicitor, and were admitted in the defendant’s case. It seems that the only expert to whom the plaintiff disclosed the incidents was the psychologist qualified by the defendant, Associate Professor Bryant. Put shortly, what emerges from that report is that the plaintiff found the incidents stressful at the time that they occurred but they had no lasting effects upon him. Broadly speaking, that was the position which he maintained when cross-examined about the report.

16 At no time did counsel for the plaintiff expressly abandon the application in respect of the claim founded upon those eight incidents. However, while they were mentioned in passing in submissions for the plaintiff, no argument was developed in relation to them. This includes submissions filed in reply to the defendant’s submissions, even though the latter dealt at some length with the question whether they gave rise to a viable cause of action. Consistently with the way in which his case was presented, the plaintiff’s submissions focussed on the Royal Commission and its aftermath.

17 I should record that the defendant mounted a substantial case that it would be prejudiced by an extension of the limitation period in respect of these incidents because of the death of material witnesses and the unavailability of relevant records, but that is not a matter which I need to determine. An extension of time to pursue this aspect of the claim must be refused because the plaintiff has not demonstrated a viable cause of action arising from the incidents.

Royal Commission

18 As I have said, the plaintiff’s first attendance at the Royal Commission was on 8 March 1996 and it was on 20 March that he saw his general practitioner, who diagnosed stress/anxiety and ulcerative colitis. It was common ground that any cause of action arising from the claim as a whole accrued, at the latest, on the day of that consultation. However, for the purpose of the present application in respect of a claim confined to the effects of the Royal Commission, it is sufficient to say that the cause of action could not have arisen earlier than March 1996. That being so, the statement of claim, having been filed in July 2000, is some sixteen months out of time. Section 60C of the Limitation Act confers ample discretion to provide the plaintiff with the relief which he seeks.

19 Put shortly, as it relates to the Royal Commission, the statement of claim alleges that the plaintiff suffered a psychological injury after being stood down from his duties as a result of evidence given at the Royal Commission, and that the defendant was in breach of a duty to provide him with a safe work environment. His case might be seen as encapsulated in the response to the defendant’s request for particulars of the allegation that his psychological injury was the result of the defendant’s conduct:

The defendant …failed to protect the plaintiff by forcing him to sit through the Royal Commission hearings and witnessing the badgering of police called to give evidence. He was subjected to trial by media as a result of his involvement with the Royal Commission and was illegally stood down by the Police Service and then he was provided with no contact from the Police Service as to the plaintiff’s career. The plaintiff was then reinstated to corridor duties at two different units with no provision for welfare or counselling given and no information given in relation to where the plaintiff would be transferred.

20 As to this claim also, it was submitted on behalf of the defendant that the plaintiff had not shown that he has a viable course of action. In so far as the claim relies upon the proceedings in the Royal Commission, reference was made to the Commission’s statutory framework and to the fact that its conduct was independent of, and beyond the control of, the defendant. It was pointed out that, equally, the defendant had no control over publications by the media and, in any event, the particularised allegation of “trial by media” intersected with the law of defamation and raised the considerations discussed by the High Court in Sullivan v Moody (2001) 207 CLR 562 at [53] – [54].

21 With respect to their author, the particulars quoted above might have been drawn with a little less colour and a little more precision. It is apparent from the plaintiff’s submissions in reply that his counsel did not cavil with the proposition that the defendant had no control over the workings of the Royal Commission or the media. It is how the Police Service dealt with the plaintiff, in the light of his experience of the Royal Commission and its attendant publicity, that is the foundation of his claim.

22 The plaintiff acknowledged in cross-examination that it was important for the public to have confidence in the integrity of police officers and that it was necessary that the allegation against him be investigated. Counsel for the defendant submitted that, accordingly, the decision to stand him down and then to relegate him to corridor duties was the exercise of a public duty incompatible with a suggested duty of care to him. Reference was made to the examination of the principles governing this question in Sullivan v Moody at [55] ff, and by the Court of Appeal in State of NSW v Paige (2002) 60 NSWLR 371. I can see the force of that submission. However, this is a matter which might be the subject of further evidence at a trial and, for the purpose of determining at this early stage whether the plaintiff appears to have a viable cause of action, it could not be said that the proposition is beyond argument.

23 Otherwise, the plaintiff’s case is that it was foreseeable that police officers might suffer psychological injury as a result of false accusations made in the course of the Royal Commission by people having their own interests to serve. Accordingly, as it was put in the plaintiff’s submissions in reply, the Police Service had “a clear duty of care to have in place processes to ensure that clearly foreseeable injuries to its serving members were eliminated or mitigated”. The central issue, it would seem, is whether any, or any adequate, departmental welfare and counselling services were made available to the plaintiff to help him deal with his experience of the Royal Commission, including his being stood down from duty.

24 In answer to that case, counsel for the defendant relied upon the evidence of Mr Reeves’ support and of the plaintiff’s contact with Sgt McClosky (despite his initial unwillingness to discuss his predicament with fellow police officers). Sergeant McClosky’s notes disclose that on 18 April 1996 he offered the plaintiff the services of the Psychological Unit, but in evidence the plaintiff denied this. Counsel also relied upon the fact that he sought treatment himself, which was paid for by the Police Service. Certain inconsistencies were identified between the evidence and the factual assumptions of Dr Morse for the purpose of his report and, generally, it was argued that the plaintiff’s case failed to identify what counselling should have been offered to him, when it should have been offered, and the probability of it having obviated his condition.

25 These are legitimate criticisms of the case as it has been presented at this stage. Nevertheless, it appears to me that there is sufficient evidence of duty, breach and damage to pass the threshold test expressed in Yu v Speirs (supra). One of the authorities referred to by Rolfe AJA in that case was Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497, in which Kirby P (at 508) observed that it was “obviously unnecessary for a claimant to establish a case in the detail that would be required at the trial”. Referring to the introduction of s60G into the Limitation Act, his Honour continued:

The alteration of the legislation has not removed the need to demonstrate, in an appropriate preliminary way, the apparent viability of the action and, thus, the utility of providing the extension of time sought. To permit an obviously hopeless case to proceed would be to condone the harassment of a defendant otherwise protected by a time bar.

Confining the present case to the effects of the Royal Commission, the action is apparently viable. Certainly, it could not be described as “obviously hopeless”.

26 The question remains whether the discretion to extend time should be exercised in the plaintiff’s favour. He bears the burden of establishing that it should, and that involves demonstrating that the extension would not result in significant prejudice to the defendant: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. I must have regard to the matters set out in s60E of the Limitation Act which, broadly speaking, require consideration of the length of the delay and the reasons for it, as well as the likely prejudice to the defendant. The question of delay was dealt with in the affidavit and oral evidence of the plaintiff, together with an affidavit of his solicitor.

27 There is some inconsistency between his affidavit evidence and his oral evidence on this question. What emerges from the whole of the material is that by mid-1996 he was aware that he had a psychiatric illness which prevented him from working, and that he attributed his condition to his treatment by the Police Service. However, at that time he thought that he would recover. In late 1997 he consulted a different solicitor about his superannuation entitlement but, although he realised by then that his condition was serious, he did not seek advice from that solicitor about taking proceedings for damages.

28 It was not until late in 1998, after he had been receiving treatment for an extended period, that he realised that his condition was not only serious, but also chronic. Between July 1996 and October 1998 the psychologist and psychiatrists to whom I have referred (apart from Dr Morse) prepared reports, either for the information of his general practitioners or for the purpose of pursuing his pension entitlement, but most of them were not made available to him until late 1999. In December of that year he consulted his present solicitor about the prospect of seeking damages. Counsel’s advice was sought early in 2000 and, as I have said, the statement of claim was filed in July of that year.

29 For present purposes, it is unnecessary to consider separately each of the eight matters set out in s60E. The plaintiff’s explanation for the delay in instituting the proceedings is not entirely satisfactory, particularly as to the period from late 1998 to the end of 1999. That is a significant matter, but is not necessarily determinative of the application. In ASB-Tech Services Pty Ltd v Doeland & Anor [2003] NSWCA 167, albeit in the context of a different factual background and statutory scheme, Hodgson JA observed (at [34]):

…the correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there will be little prejudice to a respondent.

30 His Honour added (at [36]):

…the test to be applied is whether it is fair and just that an extension be granted, and the strength of the explanation and the degree of presumptive and actual prejudice are matters to be taken into account, together, in coming to a conclusion on this question. Where the prejudice is such that a fair trial is unlikely, it will as a general rule not be fair and just to grant the extension. However, where there is prejudice falling short of this, that prejudice will still weigh in the assessment, and is a matter to be considered along with the adequacy of the explanation in making the ultimate determination.

His Honour’s reference to “presumptive” prejudice was, no doubt, founded upon the long-standing recognition that the rationale of limitation periods is the measure of prejudice inherent in delay: Brisbane South Regional Health Authority v Taylor (supra), per McHugh J at 551.

31 The present claim is a substantial one. Confined to the effects of the Royal Commission, the delay is not great. The claim is based upon relatively recent events and no specific (as opposed to presumptive) prejudice is asserted. In all the circumstances, it does not appear to me that a trial of this issue would be unfair and I am satisfied that it is just and reasonable to grant the extension of time which is sought.

32 Accordingly, I extend the time for filing the statement of claim to the day in which it was filed, 19 July 2000. Counsel for the defendant submitted that, in that event, the plaintiff should pay the costs of the application because the defendant’s opposition to it was not wholly unreasonable: Holt v Wynter (2000) 49 NSWLR 128, per Sheller JA at [121]. That appears to me to be the appropriate order and, indeed, counsel for the plaintiff put no submission to the contrary. The plaintiff should pay the defendant’s costs.

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