Levier v State of Victoria
[2021] VCC 58
•5 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-01920
| ROBERT LEVIER | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October and 16 November 2020 | |
DATE OF JUDGMENT: | 5 February 2021 | |
CASE MAY BE CITED AS: | Levier v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 58 | |
REASONS FOR JUDGMENT
---
Subject: Limitation of Actions
Catchwords: Mental injury – leave to commence proceedings at common law – serious injury certificate granted by agent – plaintiff self-represented litigant - applicant suffered injury as police officer - presumptive and actual prejudice relied on by defendant - lengthy period of delay – diminished memory of potential defendant witnesses - loss of documents - whether just and reasonable - whether defendant capable of receiving a fair trial -
Legislation Cited: Limitation of Actions Act 1958
Cases Cited:Barker v Wingo 407 U.S. 514 (1972); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; GGG v YYY [2011] VSC 429; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Itek Graphics Ltd v Elliott [2002] 54 NSWLR 207; Lean v The Pitstop Motor Group Pty Ltd [2016] VSC 357; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Tsiadis v Patterson [2001] VSCA 138; Van Gerven v Amaca Pty Ltd [2012] VSC 131; Welsh v Adecco Industrial Pty Ltd(ACN 004 366 634) & Ors [2017] VSC 44
Judgment: Extension of time granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. R Levier In person | |
| For the Defendant | Mr. M.K. Clarke | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a former police officer. He seeks an extension of the period of limitation pursuant to s23A of the Limitation of Actions Act 1958 (“the Act”) in order to regularise his Writ filed in this Court on 30 April 2019 seeking damages against the defendant for mental injury he alleges he sustained as a police officer. He has filed a summons dated 19 August 2020 supported by an affidavit sworn 18 August 2020 in support of his application. The extension is opposed by the defendant. The defendant relies upon the affidavits of Mr Jake-James Athanasiou-Georgiou, solicitor for the defendant, sworn 11 September 2020 and 9 October 2020.
2 The defendant did not seek to cross-examine the plaintiff at the hearing of his application.
The employment period
3 The period of employment with Victoria Police relied upon by the plaintiff for the purpose of the common law damages claim is October 1999 to March 2002.
The period of delay
4 The law states that the applicable period of delay to be considered in such an application as this, is from the date of accrual of the cause of action, here said to be March 2002, with the limitation period consequently expiring in March 2008. On any basis, the period of delay is significant. However, the law is equally clear that no period of delay, of itself, must necessarily be adversely determinative of an application for extension, but it is a consideration, among a number, the importance of which will vary depending on the circumstances of the particular case.
Melbourne Injury Lawyers and the grant of a Serious Injury Certificate and events that followed
5 The plaintiff described that in 2015, Melbourne Injury Lawyers (MIL) contacted him. He said he did not know why or how they got into contact with him, although possibly through his membership of the police association. MIL told him that they wanted to commence a proceeding on his behalf claiming damages on a “no win, no fee” basis.
6 The plaintiff said that the existence of a limitation period was never referred to by MIL. Moreover, the plaintiff said he was unaware of the application of any limitation period. There is no evidence to suggest otherwise.
7 The defendant’s solicitor deposed that on 21 June 2018 MIL completed a Serious Injury Application on behalf of the plaintiff. It included an affidavit and draft statement of claim. The serious injury application was served on the defendant on 21 June 2018.
8 On 11 December 2018 the plaintiff was granted a serious injury certificate by the Authority for pain and suffering and loss of earning capacity in respect of a psychiatric injury.
9 On 30 April 2019 the plaintiff filed a writ with the County Court of Victoria.
10 MIL ceased to act with effect from 18 June 2019.
11 The plaintiff served his writ on 21 September 2019.
12 On 22 November 2019 the defendant filed its defence and, at paragraph 7, pleaded a limitation period. It was expressed as follows:
“FURTHER, the Plaintiff is statute barred from bringing an action against the Defendant pursuant to section 5 of the Limitations of Actions Act 1958 (Vic).
PARTICULARS
(a) The alleged cause of action accrued in March 2002.
(b) Therefore, as at March 2008, the Plaintiff’s action was statute barred.
(c) The Plaintiff did not make a claim for impairment benefits pursuant to sections 98C and E of the Accident Compensation Act 1985 (Vic) until he lodged a “Claim for Impairment Benefits” on 12 August 2011. That claim resolved on 14 October 2011 when the Plaintiff signed a “Worker’s Response Form” document in response to a Notice of Impairment Benefit Entitlement.
(d) On 21 June 2018, the Plaintiff lodged a “Serious Injury Application” pursuant to Section 134AB of the Accident Compensation Act 1985 (Vic).”
13 The plaintiff became a self-represented litigant in consequence of MIL being granted permission to file a notice of solicitor ceasing to act dated 24 May 2019. The plaintiff was subsequently managed in accordance with the practices and procedures of the County Court of Victoria for a self-represented litigant. This process commenced under the control of a different judge in charge of the list and, subsequently by me. Steps were put in place to ensure that as far as possible the plaintiff was aware of the requirements needed to progress his claim, and after the matter of the limitation period was sought to be agitated by the defendant, the need to proceed by way of a summons to apply for an extension of time.
14 Neither party objected to me hearing and determining the summons despite having conducted a number of directions in the matter and having engaged with the plaintiff to assist him clarify the grounds of his claim in negligence as well as his extension of time application. The plaintiff was directed to and provided a link to the Limitations of Actions Act and was also provided information by the List’s case management team about preparing affidavits. As well, I directed the defendant to provide the plaintiff with an outline in written form setting out the grounds for opposing his application for an extension of time together with copies of any principal legal authorities upon which it intended to rely. I ensured the plaintiff was provided with this material before the hearing of his summons and I satisfied myself that the plaintiff had been provided sufficient time to read them[1].
[1]Transcript (T) 2, line (L) 23-30.
15 The hearing of the plaintiff’s application was heard initially on 12 October 2020 and was adjourned part heard to 16 November 2020. This occurred because toward the end of the hearing in October, the plaintiff explained that he believed he could produce corroborative evidence from four former police officers regarding insubordinate conduct and other matters of complaint of treatment he was subjected to when stationed at Rosebud Police Station. This was a relevant consideration because a central ground of the defendant’s opposition to the plaintiff’s summons is that it would face specific prejudice due to the lack of identification of relevant police personnel implicated in the allegedly adverse conduct directed at the plaintiff while working at the Rosebud station. The defendant argues that such personnel who had been identified and with whom it had been in contact either had no recollection of relevant matters of complaint relied on by the plaintiff or, such memory as they retained, was severely diminished such that it would not be able to fairly defend the plaintiff’s claim in the event an extension of time was granted.
16 The adjournment was not opposed by the defendant. I made an order allowing the plaintiff until 2 November 2020 to file and serve any affidavit identifying the names of witnesses he would intend to call at any trial of the proceeding together with a statement of the substance of the evidence of such persons in connection with the allegations contained in the Statement of Claim. Although the plaintiff did not comply with the date for the provision of an affidavit, he provided an affidavit dated 11 November 2020. It contained medical material and a statement from John Fawcett, a former Senior Constable stationed at Rosebud station. No point of objection was taken by the defendant regarding the provision of the affidavit and material outside the time ordered by me. I received the affidavit and the statement. I explained to the plaintiff that the additional medical reports were not relevant to the basis of the adjournment and, moreover, the question of the plaintiff’s current medical condition was not a matter upon which the outcome of his application depended. The plaintiff said he understood my reasoning once I explained it to him.
17 It is appropriate to note that throughout the proceeding the plaintiff conducted himself diligently and conscientiously in endeavouring to meet the requirements imposed on him in preparation of his application. The defendant through its solicitors and counsel, Mr Clarke behaved appropriately. Its opposition to the plaintiff’s application proceeded on substantial grounds.
18 The directions hearings generally and the summons for an extension of time were conducted remotely via zoom with the consent of the parties because the plaintiff is resident in Queensland and Covid-19 restrictions prevented an in court appearance by the parties.
19 In the management of the plaintiff as a self-represented litigant, and in an effort to direct his attention to relevant evidence, the plaintiff prepared affidavits.
20 By an affidavit dated 8 June 2020, prepared by the plaintiff as part of the proceeding generally, he attached a number of documents comprising:
· His answers to the defendant’s interrogatories and the following medical reports-
oDr. John Hough dated 1 September 1998
oDr. Rhyll Black dated 24 April 2002 and 15 September 2002
oDr. Andrew Jakobovits dated 2 May 2002
oDr. David Vissenga, Police Medical Officer dated 18 September 2002
oDr. Peter Marriot dated 17 October 2002
oDr. Jakobovits, dated 19 May 2003
oDr N. R. Rose, dated 13 November 2008
oDr. N.R. Rose, dated 7 April 2008
oDr. N. Serry and Dr. S. Brann dated 1 April 2016
oDr. M. M. Epstein dated 15 December 2017
oDr. Chris Grant dated 11 October 2018
oDr. Benjamin Duke dated 6 February 2017
oDr Christopher Danesi dated 12 February 2020 and 30 April 2020.
21 These medical reports include histories provided by the plaintiff. The histories reflect very considerably the content and tenor of a number of the allegations by way of stressors the plaintiff claims he encountered in his service as a police officer generally, and subsequently, as the Officer in Charge (OIC) of the Rosebud Police Station.
22 From about 2009 to 2016 the plaintiff saw various other health professionals including:
· 2009, Suzanne Fulford (Psychologist);
· 2010, Dr John Wainwright (Psychiatrist);
· 2012, Dr Rashmi Prakash (Psychologist);
· 2013, Dr Ashar Khan (Psychiatrist), whom he saw regularly until January 2016.
The Plaintiff’s mental health
23 The defendant does not question the fact of the plaintiff suffering from a diagnosable mental condition and that it is work related. Mr Clarke put it as follows:
“Your Honour, as Your Honour noted earlier or anticipated, there’s no dispute by the plaintiff’s (sic) that Mr Levier has a psychiatric injury and that it has its origins in his employment with Victoria Police.” [2]
[2]T 18, L 29 - T 19, L 1.
24 The medical reporting including, for example, Dr Grant who had occasion to examine the plaintiff on behalf of the defendant as part of the determination of the plaintiff’s serious injury application, is indeed to the effect that he has a mental injury.
25 Dr Danesi is a psychiatrist who has treated the plaintiff since 2005. He has diagnosed PTSD, Major Depressive Disorder and Alcohol Use Disorder. Dr Danesi has also expressed an opinion that it is understandable in light of the plaintiff’s mental state that he would have been avoidant in addressing legal issues pertaining to a claim for compensation as the same triggers memories which are distressing and leads to agitation. He put it this way when he wrote that:
“Avoidance is a hall mark of those who have PTSD … the plaintiff has been at increased risk of suicide. He has made attempts to kill himself when overwhelmed and had he been required to deal with the claim some years ago it would not have been possible as he would have decompensated with the risk of suicide”.[3]
[3]Report of Dr. Christopher Danesi dated 11 August 2020 to the Affidavit of Robert Levier dated 18 August 2020.
26 In another report the plaintiff provided from Dr Danesi dated 12 February 2020, and appended to an affidavit made by the plaintiff dated 8 June 2020, Dr Danesi said of him that:
“He has chronic major depressive Disorder, PTSD, Alcohol Use disorder.
He has ongoing unremitting symptoms. These conditions effect his capacity to work especially PTSD and major Depressive disorder.
He is unfit to work due to ongoing avoidance of situations which are overly crowded, noisy, have significant movement of people;
Difficulty in dealing with the general public and peer relationships;
He is unable to supervise others;
He does not manage interpersonal conflict;
He is avoidant of taking on significant responsibility;
He is unable to manage time pressure;
He has difficulty managing sustained concentration, and in complex decision making, and rapid dedsion (sic) making, or managing high levels of complexity in planning and organizing, and lacks flexibility in changing mental tasks;
He has reduced endurance and stamina;
These deficits will be ongoing and so preclude returning to work”.[4]
[4]Report of Dr. Christopher Danesi dated 12 February 2020 to the Affidavit of Robert Levier dated 8 June 2020.
The Plaintiff’s Background
27 The plaintiff is 66 years of age. He was employed by the defendant as a police recruit in May 1973. He graduated in September 1973. He then commenced employment with Victoria Police. He ceased work with the rank of Senior Sergeant in March 2002. At that time he was OIC at Rosebud Police Station. He was ill health retired from the police force on 31 December 2003.
The claim in negligence
28 At this point, and in the context of a consideration of the application for an extension of time, it is sufficient to observe that the law recognises that a duty of care will extend to impose on an employer the duty to take reasonable care to prevent psychiatric injury. The circumstances under which the duty of care arises and its content will vary from case to case. Nonetheless, the legal nature of the plaintiff’s claim is not novel. Whilst the defendant accepted for the purposes of the application that the plaintiff suffered his injury in his employment with the defendant, it contests its liability.
29 The plaintiff alleges that he was the subject of repeated acts of insubordination and interference of his command at Rosebud and that he was exposed to numerous stressful incidents and events over his working life as a sworn police officer. It is alleged that his exposure to the stressors occurred with an awareness on the part of the defendant of his psychological vulnerability. However, he deposed that he guarded his mental health issues and never reported them to his employer, although he said he was open and honest at many of his medical appointments, including those he attended before exiting the police force, however, he concedes that at no point in time did he come under the care of the Victoria Police Psychology Unit.
30 The plaintiff’s allegation that the exposure to the stressors occurred with an awareness on the part of the defendant of a psychological vulnerability may, in the event an extension of time is granted, prove difficult to reconcile with his acknowledgement that he kept his mental health issues to himself and never reported them to his employer.
31 By Notice of Defence dated 22 November 2019, the defendant pleaded the provisions of s 23(1)(b) of the Crown Proceedings Act 1958, to the effect that the plaintiff must prove that he was owed a duty of care by an identified servant or agent of the defendant and that such servant or agent had breached the duty of care owed to the plaintiff. The defendant also pleaded s 72(1) and 74(1) and (2) of the Victoria Police Act 2013, but it is unnecessary for the purposes of this application for me to address those provisions in any detail.
32 The claim made against the defendant in negligence is expressed in the plaintiff’s Statement of Claim prepared by MIL. The allegations fall broadly into two parts, consisting of events to which the plaintiff was exposed as a police officer generally in the day to day activities of his occupation and, secondly, the conduct and behaviour and operational demands to which he was exposed whilst OIC at Rosebud. So much is intimated at paragraph 4 of the Statement of Claim where it is alleged that:
“In the course of his employment with the defendant at the premises on and from 20 October 1999, the plaintiff was exposed to highly stressful situations including:
(a) attending numerous stressful events including fatal accidents;
(b) coordinating the conduct of the premises when inadequate resources were provided for that purpose;
(c) coordinating the conduct of the premises in circumstances where the plaintiff was subject to repeated acts of insubordination and interference in his command of the premises – in circumstances where the defendant knew that the plaintiff had previously suffered psychiatric injury and was vulnerable to further psychiatric injuries as a result of the matters referred to (such injuries are hereinafter referred to as ‘the injuries’).”
The plaintiff’s activities since retiring ill
33 The plaintiff’s Serious Injury Application material taken together with the plaintiff’s affidavits reveal a good deal of his history since leaving his employment as a police officer. I will address relevant aspects of it.
34 The plaintiff relocated his family to the Gold Coast in order to reunite with his parents and siblings in about 2004. Soon after, however, his mental condition required professional assistance. In May 2005, the plaintiff came under the care of Dr Danesi, psychiatrist, at the “Currumbin Psychiatric Clinic” (CPC). The plaintiff has consulted with Dr Danesi many times over the years and he remains under his care.
35 Following the plaintiff’s move to Queensland, and somewhere between 2005 and 2007, he purchased the “Management Rights” to an over 50’s retirement complex. In a medical examination conducted by Dr Chris Grant on behalf of the defendant dated 13 August 2018[5], the plaintiff described his duties as including lawnmowing and cleaning swimming pools in the common areas of the complex. However, he said that he realised almost immediately that he had made a mistake and put the rights up for sale. Apparently, it took over a year for a sale to occur and at a low price.
[5]Exhibit JZG-3 to the Affidavit of Mr Athanasiou-Georgiou dated 11 September 2020.
36 The plaintiff said he had been delinquent in attending to taxation obligations and reporting for many years. He said the accountant he hired, Paul Kenneth, left him in the lurch and he has not seen or heard from him since he handed over numerous documents for the purpose of regularising his obligations none of which have been returned.
37 The plaintiff has been able to undertake tertiary studies in criminology.
Particulars of negligence
38 The plaintiff’s Particulars of Negligence at paragraph 5 of the Statement of Claim sets out a number of allegations against the defendant:
· Failing to provide a safe system of work;
· Failing to provide a safe place of work;
· Failing to provide adequate equipment for the plaintiff to use in his work;
· Failing to provide sufficient ranks and unsworn staff at the premises;
· Failing to heed the Plaintiff’s request for further staff and equipment;
· Failing to provide the plaintiff with any or adequate support in his conduct of the premises;
· Failing to implement any or adequate controls with respect to acts of insubordination to which the Plaintiff was subjected;
·Failing to heed the Plaintiff’s complaints in relation to acts of insubordination to which he was subjected;
·Failing to investigate and/or discipline ranks responsible for acts of insubordination to which the Plaintiff was subjected;
·Placing the plaintiff in circumstances where, having regard to earlier psychiatric injury of which the defendant knew or ought to have known, the Plaintiff was liable to suffer further psychiatric injury;
·Failing to provide the Plaintiff with any or adequate support and/or supervision;
·Failing to ensure the Plaintiff was adequately trained and qualified for the stresses to which he was exposed;
·Failing to appoint the Plaintiff to an alternative role within Victoria Police Force which did not expose him to stressors to which he was exposed at the premises;
·Failing to provide any or adequate support or encouragement for the Plaintiff in his position as officer in charge of the premises;
·Exposing the Plaintiff to risk of danger of injury of which the Defendant knew or ought to have known;
·Exposing the Plaintiff to risk of danger of injury which could have been avoided with reasonable care on the part of the Defendant;
·Permitting and/or requiring the Plaintiff to continue to work in a stressful work environment;
·Permitting and/or requiring the Plaintiff to continually be exposed to stressful situations in circumstances where the Defendant knew or ought to have known that the Plaintiff had previously suffered psychiatric injury;
·Failing to provide the Plaintiff with a system of work which prevented him so far as was reasonably practicable from sustaining injury in the course of his employment;
·Requiring the Plaintiff to undertake duties which were in all the circumstances beyond his capacity and/or capabilities;
·Failing to assess and/or monitor the Plaintiff’s work environment adequately or at all to assess the stressors to which he was exposed;
·Failing to assess and/or monitor the Plaintiff’s ability to adequately discharge his functions having regard to the stressful situations to which he was exposed;
·Failing to provide any or adequate psychiatric counselling and/or treatment for the benefit of the Plaintiff.
39 On 11 March 2020, the defendant requested Further and Better Particulars of the Statement of Claim. The defendant received a response from the plaintiff’s solicitors to the Request for Further and Better Particulars.
40 On 21 May 2020 the defendant’s solicitor e-mailed the plaintiff’s solicitors requesting the provision of the first and last names of personnel referred to in the provision of the Further and Better Particulars of the Statement of Claim.
41 On 31 May 2020 the plaintiff, who was now self-represented, responded to the defendant by way of an email stating:
“Dear Mr. Georgiou. I will assist here where I can.
In an earlier period in 2016, I made two suicide attempts. For unknown reasons, I began a period of disposing all documents, uniforms, relating to Victoria Police. I also disposed of any documents or relics relating to management rights. My cupboards were emptied of past memories, This included financial documents. After the suicide attempts, I was sent to Belmont Private Hospital in Toowong for E.C.T. treatment.
(1) The applicants who appealed my decision as OIC Rosebud. Their (sic)were many I do not recall their names. An appeal by many was also made to the Victoria Police Association. Promotion by 'merit only' was new. I was the youngest applicant for the position, it caused dissension within the Victoria Police.
(2) Sergeant Paul DIXON. PW's name unknown
(3) S/Sgt. Bill WOODLEY.
(4) At the read out I headed. Many staff. Names unknown. (possibly half the station personnel.)
Their (sic) were many District Inspectors. Name unknown.
Sergeant Mick ROMERIL. OIC Dromana Police Station.
Inspector name forgotten.
Relieving Inspector. Not known.
(If I saw photos of Inspectors I would remember.)
If I sound vague, I had about 80 members under my command. Frankston was District HQ. Again many staff and Officers based there.”[6]
[6]Exhibit JZG-7 to the Affidavit of Mr Athanasiou-Georgiou dated 11 September 2020.
The plaintiff’s account of stressors
42 The plaintiff said that during the period from 1973 to 1999 he attended many major incidents. He said that on 8 October 1974 his Supervisor was stabbed in the neck in front of him under the clocks at Flinders Street Railway Station. In 1979 he was assigned to the police motorcycle division during which time he explained that a number of his colleagues were murdered or died in collisions. He referred to a young Constable stationed at Nunawading police station who shot himself through the mouth. The plaintiff said he discovered the body and remained with him until the investigators arrived.
43 The plaintiff said that in the 1980’s he was a uniform Sergeant stationed at Russell Street Police Headquarters where he was exposed to a number of major incidents, including the Russell Street Bombing, the Hoddle Street and Queen Street massacres and the Walsh Street executions of two young Constables.
44 The account of these early and historical incidents lack the identification of police personnel or command who made operational decisions to deploy the plaintiff where these events occurred. Also it is not evident how the defendant is alleged to have been negligent in respect of the plaintiff being exposed to these events. The matters that are the subject of the plaintiff’s complaint and arising during his tenure at Rosebud police station are of a different character.
OIC Rosebud
45 The plaintiff said that in December 1991 he was appointed OIC of Rosebud Police with the rank of Senior Sergeant. He explained that this was a very controversial decision as he was one of the first appointments under “efficiency & merit-based” promotions processes. He was only 37 years of age. He was a number of years younger than those others who had been in contention for promotion. He said he was exposed to adverse comments and ridicule. He said his appointment was the subject of internal appeal. Despite his appointment being confirmed he believed resentment towards him remained among other officers.
46 The plaintiff said he has been disadvantaged in the ability to provide contemporaneous records of the events to which he was subjected during this period of time as OIC, because of the loss of his police diaries. He said they contained details of his many experiences. He believes his diaries were either stolen by police personnel or seized.
47 Despite the absence of his diaries, the plaintiff has done his best to provide an account of a number of matters that occurred at Rosebud on which he relies. I will refer to the matters upon which the plaintiff has placed particular emphasis.
48 In about 1999 the plaintiff says he received a report that a member from his station had kicked an offender in the groin. He directed both members to make written statements. The plaintiff said that he prepared a lengthy report of the incident in his diary. The members, however, declined to prepare statements out of an apparent concern that the offending Senior Constable would be charged and dismissed from the force.
49 The plaintiff said that following this incident he became the subject of adverse comments. He said he went on short term leave. When he returned, he found a black semi-automatic firearm and a large bag of marijuana in his desk and his diaries were missing. He contacted the Duty Officer, an Inspector Welsh who attended. The plaintiff said his office became a crime scene. He said as part of the investigation, his home was inspected. He said that story gained some media notoriety. He said that in subsequent days he discussed the incident with his staff and he broke down in front of them. He said he needed to take two days leave, to get himself together.
50 The plaintiff said that in the late 1990’s until his ill health retirement, officers with the rank of Senior Sergeant took over the role of the Night Shift Duty Officer, a function previously performed by a member with an Inspector’s rank. As a result and, approximately every six weeks for a period of seven nights, the plaintiff undertook the role. He said his area covered the Mornington Peninsula, the Frankston and Greater Dandenong districts, which the plaintiff described as among the busiest districts in Victoria. He said he was required to attend all major incidents such as serious and fatal motor car accidents, cot deaths, serious assaults and murders, armed robberies, and drownings. He said he was called out multiple times to coordinate the search for victims of drownings. He saw the bodies of many victims. He deposed that on one occasion together with an Inspector Welsh, he dragged the decomposed male victim of a drowning from the beach. Understandably he described this as a terrible task.
51 The plaintiff said that he encountered many incidents of insubordination, particularly with one sergeant from the Dromana Police Station. The plaintiff said he broke down a few times behind his locked office door.
52 The plaintiff said that sometime in 2001, an officer whom he identified by the name of Superintendent Blay, requested him to be on duty one afternoon shift as he had requested to see him. He said that Blay attended in an unmarked car and in plain clothes. He told the plaintiff that he wanted to view a Ford Fairlane that was being held in the exhibit garage. The plaintiff said that Blay then commenced to remove interior trim from the car. He told the plaintiff it was for use on his son’s car. After removing a number of parts Blay left the police station. The plaintiff said he was shocked at his Superintendent’s behaviour. He said he made entries in his diary of the incident.
53 About one month later, according to the plaintiff, a Divisional Inspector conducted a station inspection. He reviewed the plaintiff’s diary and commented to him about the entry relating to Superintendent Blay. The plaintiff said he explained what had occurred. He said the Inspector was critical of his diary entry. The plaintiff said his diary was then seized and although he subsequently requested its return, this was refused.
Short Staffing
54 The plaintiff said that Rosebud Police Station comprised part of No 5 Division, along with Frankston Police Headquarters, Hastings, Mornington, Rosebud, Dromana, Rye and Sorrento.
55 The plaintiff described how in his initial years as a Senior Sergeant in charge of Rosebud, Frankston was a very busy area and experienced ongoing staff shortage. Rosebud station was required to provide members to assist Frankston with the result that Rosebud was left with the minimum of staff and often operated on a skeleton basis with the result the plaintiff said that he was put under extreme pressure, especially with the need to pick up additional administrative duties that resulted from the reduced operational staff inevitably falling behind with completing.
56 The plaintiff said that most days in his final years of service he was working 10 hours a day, and was coming into work on rest days just to catch up. He said it was about this time that he developed Ulcerative Colitis which was subsequently accepted as work related stress. He was referred for psychological assistance.
57 Whilst on sick leave in mid-2003 with Ulcerative Colitis and stress, the plaintiff said he received a call from the head of the SES whose first name he believed was Paul and who was a member of monthly emergency management meetings. He was also a Manager at Bunnings. The plaintiff said he was told that a "retired" Police Inspector by the name of Paul Maas, was using his badge to obtain discounts at Bunnings in Mornington. The plaintiff said he would report the matter to his Inspector.
Social exclusion and derogatory conduct directed at the plaintiff’s wife
58 The plaintiff said inappropriate photographs of a woman together with an accompanying note that suggested the person depicted was his wife was left under his office door and his complaint went unaddressed by his superiors. He said that he was excluded from many social functions and learned that they had been organised behind his back. At one function he and his wife were left alone at a table causing him embarrassment.
Serious Injury Application Affidavit
59 The defendant’s solicitor deposed to a number of the incidents relied on by the plaintiff in his Affidavit sworn 15 June 2018 made in support of his Serious Injury Application. These included:
(a)Paragraph 15:
“When I returned to my office, I asked the sub charge Senior Sergeant Woodley for a briefing at the time I was away. He immediately reported that he was concerned about the “drugs and firearm” in my desk. I opened the top draw of my desk which had been emptied of stationary items and found a large bag of marijuana and a semi-automatic firearm. I was shocked. Senior Sergeant Woodley said to chuck it in the dump master but I responded to the negative. I immediately reported what had happened to the Divisional Inspector and my office became a crime scene. The media were involved but I was disallowed media contact by the Inspector. My diaries relevant to these events disappeared. My Inspector attended my private home for the purposes of an inspection. Sometime later I addressed my staff about those events and broke down in front of them.”
(b)Paragraph 16:
“From that time on I felt uncomfortable as station commander. My practice thereafter was to take my diary and files home with me. I found that 90% of the police officers under my charge were good hardworking members of the force, but that there was a constant insubordination and undermining by about 10% of the officers. This insubordination and undermining in relation to my psychiatric condition were matters well known to Victoria Police but nothing was done to resolve the problems created.”
(c)Paragraph 18:
“In the years which followed, and in this respect I rely for the purposes of this application on the period on and from 20 October 1999, I was involved in heavy administrative responsibilities of operation at the Rosebud Police Station. Not only did there continue to be longer serving sergeants at that station, but my deputy officer in charge was a longer serving senior sergeant. I continued to face insubordination and undermining within my workplace because of my rapid career progress in addition to the multiple major incidents, murders, suicides;” and
(d)Paragraph 20:
“A further source of stress arose through the actions of some of my senior officers. One day during 2000, I received a telephone call from my district superintendent. He requested that I work on afternoon shift the following day, a request with which I complied. The following evening he attended the station in plain clothes and in an unmarked police car and request that he view a seized Ford motor vehicle locked in our car cage. The district superintendent then began removing a number of trim items from the interior of the vehicle which he said was for his son’s car. This was theft from an exhibit at the station under my control. I felt quite stressed at what was going on but said nothing to the district superintendent. I did however make a cryptic entry in my diary. The following month the district inspector, during his monthly station inspection, read my diary entry. He questioned me about the exhibit and I gave him answers as to my concerns. My diary was immediately seized. I received no further information from the district inspector but was simply issued with a new diary. I was highly stressed waiting to see what would transpire as a result of the district superintendent’s actions in the car cage but nothing ever did.”
(e)Paragraph 21:
“Around this time, in early 2000s, an envelope was slipped under my office door which contained pornographic photographs and a note suggesting that the woman in the photographs was my wife. This happened to me on two occasions and caused me a great deal of stress and embarrassment. I reported these incidents but nothing was ever done. It was treated as a joke. I believe that this was a further attempt at insubordination and undermining my position.”
Previous Work Injury claims
60 Despite the plaintiff not pursuing the path for the recovery of common law damages until the commencement of a serious injury application in 2018 by MIL, the defendant points out that the plaintiff was capable of taking action in earlier years to receive statutory benefits and other entitlements under the Accident Compensation Act 1985.
61 The defendant’s solicitor deposed to the plaintiff’s previous claims’ history. On 18 July 1997 the plaintiff submitted a WorkCover workers’ claim form. It was expressed as being for “work-related stress over past 40 years”. It appears the plaintiff received medical and like expenses for a small amount to cover just a single visit to his general practitioner together with some medication.
62 On 29 July 1999 the plaintiff submitted a second workers’ claim form relying on “anxiety 1991-1999”. Certificates of capacity appear to have covered the plaintiff being unfit for work from 10 May 1999 to 24 May 1999 whereupon he was certified fit for normal duties from 2 July 1999. He did not appear to receive any weekly payments nor be reimbursed in medical and like expenses. This period of absence would appear to coincide with the kicking in the groin incident after which he returned to work to be told how a gun and drugs had been found in his drawer.
63 On 7 April 2002 the plaintiff completed a WorkCover claim form and the injury relied upon was “work-related stress” with the details of injury and symptoms comprising an aggravation to colitis. The employer injury claim report was dated 8 April 2002.
64 In the course of the hearing, Mr Clarke said that it did not appear that any investigation reports were carried out for any of the plaintiff’s WorkCover claims on behalf of the defendant’s agent.
65 The plaintiff began the receipt of weekly payments of compensation from 4 April 2002.
66 On 24 April 2002 the plaintiff consulted Dr Peter Marietta psychiatrist whom he subsequently commenced seeing monthly. It seems the plaintiff was prescribed increasing dosages of Xanax.
67 On 8 August 2011 the plaintiff completed a workers’ claim for impairment benefits.
68 All the worker’s benefits forms that support these claims appear to have been completed by the plaintiff and not on his behalf by solicitors.
The legislation
69 Section 23A of the Limitations of Actions Act 1958 provides as follows:
“23A Personal injuries
(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3) In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding—
(a) that—
(i)in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and
(ii)in any other case more than 6 years has expired since the cause of action accrued; or
(b)that an action in respect of such personal injuries has been commenced.
(5) An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.
(6) Except as provided by section 27M(2), this section does not apply to an action to which Part IIA applies.”
70 Section 23A (2) of the Act empowers the Court to extend the 6 year limitation period within which an action for workplace personal injury may be brought but the Court must be satisfied that it is “just and reasonable to do so”. In determining whether to do so, s23A (3) of the Act requires the Court to have regard to all of the circumstances of the case including a number of specific considerations. Expressed a different way, any number of relevant factors are to be synthesised in reaching a conclusion about whether the time in which to be able to commence proceedings should be extended provided it is just and reasonable to do so.
Established principles underpinning the exercise of power under the Act
71 The plaintiff bears the onus of satisfying the Court that it is just and reasonable to extend the limitation period. This is a positive burden that requires him to demonstrate that the justice of the case requires the extension. The test is expressed in the language of s23A (2) of the Act, which asks whether it is just and reasonable to extend the limitation period to enable the plaintiff to commence proceedings by writ and statement of claim. In making the evaluation whether it is just and reasonable to do so, pursuant to sub-section 23A (3), I am required to have regard to all the circumstances of the case, including, but not limited to, those set out in sub-paragraphs (3) (a)-(f). Not every consideration expressed in the various sub-paragraphs will necessarily be relevant.
72 Sub-paragraph 23A (3)(a) directs that consideration is to be given to the length of and reasons for the delay on the part of the plaintiff. Plainly, whilst delay of whatever period of time is a factor to consider, it is not the only factor to consider.
73 Although the expression “just and reasonable” is one of wide import, it is clear enough on authority, that it is intended to encapsulate that which the plaintiff must establish to be permitted to commence an action beyond the prescribed statutory period. The extent of the impact of any prejudicial factors on the fair trial of an action is the primary focus for determining the justice and reasonableness of granting a plaintiff an extension of time. If a fair trial of the action cannot be had, then an application should usually be refused. However, there is no definite prescription that can resolve every case and each application must be determined on its own facts and circumstances having regard to the totality of the evidence.
74 The concept of a fair trial is itself one of broad meaning. Of note in this regard is that in Gordon v Norwegian Capricorn Line (Australia) Pty Limited[7], J Forrest J when considering the issue of prejudice and whether a fair trial could be had stated:
“In determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is acceptably fair …”[8]
[7][2007] VSC 517 (‘Gordon v Norwegian’).
[8]Ibid [79].
75 In determining if it is just and reasonable to extend the limitation period, it is not appropriate, for example, to balance prejudice to the plaintiff on the one hand with the prejudice to the defendant on the other[9]. Neither is it proper to consider the application to extend by reason that to not grant an extension would be prejudicial to the plaintiff. So much is evident in Tsiadis v Patterson[10] (‘Tsiadis’), wherein Buchanan JA said:
“The matters which the Court is required by s 23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent [plaintiff] in being unable to recover any compensation cannot be measured against prejudice to the appellant [defendant] in conducting her case.”[11]
[9]See, for example, Lean v The Pitstop Motor Group Pty Ltd [2016] VSC 357 for a useful discussion on the matter
[10][2001] VSCA 138 (‘Tsiadis’).
[11]Ibid [33].
Shades of prejudice
76 Authority also suggests that it is not appropriate to compare the prejudice to a defendant that would have occurred had the action been commenced by a plaintiff within time, with that prejudice which would occur at the time at which the extension of the limitation period is sought.
77 In addressing the question and evaluation of any prejudice that may be suffered by a defendant in the event of the grant of an extension of time, it is appreciated that prejudice may take many forms and it is not limited to evidence of the existence of actual prejudice. Presumptive prejudice may prove to be a very relevant consideration.
78 Common examples of actual prejudice that may weigh against the grant of an extension have included the unavailability of relevant witnesses, whether through death or unknown whereabouts, destruction or loss of material documents and lack of recollection of key issues due to the passage of time. In opposing the application, the defendant relies on actual prejudice including, the vagaries of memory associated with witnesses who have been identified, as well as prejudice because of an inability to identify potentially others.
79 As regards the vagaries of memory, it is understood that the passage of time is likely to make witnesses who claim to have a recollection of particular events or statements made vulnerable in cross-examination to suggestions that their recollections must inevitably be faulty. The question of recollection, and the reliability of memory, and the vulnerability that a witness may be exposed to under cross-examination can, however, be a double edged sword. McHugh J in Brisbane South Regional Health Authority v Taylor[12] (‘Brisbane South’), referred to a more subtle prejudice that can occur, namely a deterioration in quality of evidence that is not even recognised by the parties, and drew attention to the dictum of the United States Supreme Court in Barker v Wingo,[13] namely that what has been forgotten can rarely be shown.
[12](1996) 186 CLR 541 (‘Brisbane South’).
[13]407 U.S. 514 (1972).
80 In Prince Alfred College Inc v ADC[14] the High Court addressed two propositions arising from Brisbane South which ought to guide the exercise of the Court’s discretion on an application for an extension of time. These are:
“First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary Judge’s decision.
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.”[15]
[14](2016) 258 CLR 134 (‘Prince Alfred College’).
[15]Ibid [99]-[100] (citations omitted).
81 It is good public policy and it is in the interests of justice that persons are not left wondering interminably if a controversy still exists years after the ordinary time for a claim to be litigated. In Brisbane South, McHugh J explained the rationale for limitation periods and identified four broad reasons for the enactment of them. These are that as time passes relevant evidence is likely to be lost. Here the defendant points to the loss of evidence in the form of the plaintiff’s police diaries and any other written reports that might assist it meet or test his allegations. Second, it is oppressive to a defendant to permit an action to be brought long after the circumstances giving rise to it have passed and that insurers and public institutions have a significant interest in knowing that they have no liabilities beyond a definite period. As his Honour said, even where the claim or cause of action relates to personal injuries, it will often be just as unfair to grant an extension of time and lastly, it is in the public interest that disputes be settled as quickly as possible. His Honour said:
“A limitation provision is the general rule: an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s31 is to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare to the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[16]
[16]Brisbane South (n 11) 553.
82 His Honour also said:
“The justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against the defendant, who, by reason of the delay, in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action….
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.” [17]
[17]Ibid 555.
83 In Welsh v Adecco Industrial Pty Ltd(ACN 004 366 634) & Ors[18] (“Adecco”), T Forrest J identified relevant legal principles in extension of time applications. He said:
[18][2017] VSC 44.
“The principles that apply to this application are uncontroversial:
(a) the plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended;
(b) should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice;
(c) the considerations referred to in s23A(3)(a) and (b) of the Act are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that account of them all;
(d) the relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time;
(e) relevant prejudice to a defendant is that which actually occurred by reason of the delay, as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period;
(f) the longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections”.
84 The defendant relies on both prima facie or presumptive prejudice and actual prejudice that it would experience if the extension were granted. It contends that the prejudice would likely prove to be significant.
Delay
85 Section 23A(3)(a) requires that when considering if it is just and reasonable to extend the period within which the plaintiff’s action may be brought, that I have regard to the length and reasons for the delay on the part of the plaintiff. That period of delay referred to in the section is, as identified in Adecco, the delay between the accrual of the cause of action and the making of the application for an extension of time. Here it is a significant period of time. For example, the serious injury application was made approximately 15 years after the accrual of the cause of action and some 9 years after the limitation period expired.
Explanation for delay
86 The defendant argues that the plaintiff has not provided the Court with an explanation for the length of the delay. In particular, the defendant submitted that there is no explanation to the Court why the plaintiff failed to take action by way of a claim for negligence following his cessation from active employment with Victoria Police in March 2002 but prior to being contacted by MIL in 2015.
87 The defendant’s submission of a lack of explanation by the plaintiff is not wholly correct. The plaintiff has endeavoured to explain himself. For instance, in his affidavit, on page 2, he states:
“For the last 10 years, I have been in and out of the clinic. My past records show my admissions to the clinic twice a year, 4 to 5 weeks duration (28 times).
In or about 2015, Melbourne Injury Lawyers (“MIL”) made contact with me. Not knowing how or why. They wanted to claim damages for me, on a ‘No Win No Fee’ basis.”[19]
[19]Affidavit of Robert Levier dated 18 August 2020, 2-3.
88 That explanation by the plaintiff gives an account by way of explanation for the last decade or so, but not the early period of delay since the accrual of the cause of action. However, the plaintiff relies very substantially on the effects his diagnosed condition of PTSD has had on him being unable to confront the matters of his past.
89 As part of the material relied upon by the plaintiff, and in addition to the reports of Dr Danesi, the plaintiff provided references to a number of academic papers that address the effects of PTSD in child abuse cases. No objection was made by the defendant about their inclusion in the plaintiff’s material. I have not needed to consider their effect because Dr Danesi otherwise offers an explanation for delay by reference to the effects brought about to the plaintiff because of his diagnosed mental condition.
90 However, as against the plaintiff’s explanation, and Dr Danesi’s opinion of the effects on the plaintiff by way of his diagnosis, and relevant to the discretion I must exercise under the Act, I have had regard to the fact of the plaintiff having previously engaged with and utilised the statutory processes available to a worker claiming a work related stress injury, and that in doing so, he relied upon the stress of his working environment to which he was exposed, and that now many years later he seeks to rely upon to support his claim at common law in negligence.
91 I regard it as reasonable to proceed on the footing that the plaintiff had an awareness of the “no fault” statutory benefits scheme pursuant to the Accident Compensation Act 1985, having –
(a)first made a claim for compensation in 1997;
(b)coming into the receipt of weekly payments of compensation since 2004; and
(c)lodging a claim for impairment benefits dated 8 August 2011.
92 I consider it is relevant as part of my assessment of the whole of the circumstances, that each of these claims were underpinned by the plaintiff alleging his work related injury was occasioned by the stress associated with his employment.
93 The defendant furthermore submitted, that I should at least infer that by virtue of the plaintiff’s involvement with the Workcover system, and by reason of his employment with Victoria Police, that he had an awareness of his legal rights to pursue a potential claim for common law damages. I am unwilling to go so far, and I do not presume, that it is reasonable to impute such a specific knowledge because of the plaintiff’s service as a police officer.
94 I accept, and it is obvious, that the period of delay is significant. I also accept that the plaintiff’s medical history, his account in evidence of his mental condition, its decline, including suicide attempts and of the effects on him of his PTSD, anaesthetised him to a capacity to confront his past stressors and so to engage with the legal processes. I accept this as amounting to a sound reason to explain the substantial period of delay occurring during the limitation period and, notably, from about 2005 when he moved to Queensland and his mental health progressively declined, until being contacted by MIL and their commencement to act on his behalf by way of an application for a serious injury certificate. I arrive at this conclusion having taken into account whether the adequacy of the explanation is diminished by the effect of the previous claims made by the plaintiff. On balance, I am not satisfied that it is.
My approach to the question
95 On my analysis of the application, the considerations arising under the Act that are most relevant to the application and to the evaluation of the plaintiff’s conduct and whether it is just and reasonable in all the circumstances to extend the period of time in which the claim may be brought, bearing in mind my satisfaction that the plaintiff has provided an explanation for the most substantial period of delay are:
(a)First, the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant s23A(3)(b).
(b)Second, the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action s23A(3)(a)(d).
(c)Third, The extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages s23A(a)(e)
(d)Fourth, “the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received” [23A(f)].
Prejudice
96 The defendant points to s23A (3)(b) of the Act as the touchstone of its opposition to the plaintiff’s summons such that it would not be in the interests of justice to enlarge the time to commence proceedings because of the prejudice that it would suffer.
97 First, the defendant submits that the significant effluxion of time between the accrual of the cause of action and the time of the plaintiff’s application gives rise to presumed prejudice. In support of this submission, it referred to Van Gerven v Amaca Pty Ltd[20] (“Amaca”) in which Beach J stated:
“Prejudice is an important consideration in determining applications under ss20(2) and 23A. The prejudice referred to in both sections need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of delay. Both sections require the Court to have regard not only to the established prejudice, but also consider the extent to which there is likely to be prejudice. Mere delay itself, when inordinate, may be taken as evidence of prejudice.”[21]
[20][2012] VSC 131.
[21]Ibid [44].
98 The defendant also referred to Tsiadis in which in addressing the significance of the effluxion of time, Buchanan JA, stated:
“The lapse in time since the occurrence of the accident alone warrants an inference of prejudice. Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss.”[22]
[22]Tsiadis (n 9) [32].
99 I accept that if an extension is granted then the plaintiff has established that it would suffer prejudice of the type explained particularly in Amaca and in Tsiadis.
100 However, not only does the defendant rely upon presumptive prejudice because of the significant period of the plaintiff’s delay, but it relies on actual or specific prejudice.
Specific prejudice
101 The defendant submits there is specific prejudice by reason of the absence of documents relevant to the plaintiff’s claim, the inability to identify and locate relevant witnesses, and the limited recall (if any) of possible witnesses who have been identified and so far located by the defendant.
Documents
102 The absence of documents is deposed to by Mr Athanasiou-Georgiou in his Affidavit sworn 11 September 2020[23]. The plaintiff has not discovered any relevant material, and that seems plain from the plaintiff’s email dated 31 May 2020[24] together with his answers to the defendant’s interrogatories that he no longer possesses any relevant material. In his email dated 31 May 2020, he wrote: “In an earlier period in 2016, I made two suicide attempts. For unknown reasons, I began a period of disposing of all documents, uniforms, relating to Victoria Police…”[25].
[23]Affidavit of Mr Athanasiou-Georgiou dated 11 September 2020, [47].
[24]Exhibit JZG-7 to the Affidavit of Mr Athanasiou-Georgiou dated 11 September 2020.
[25]Ibid.
103 In Answer 3(a) to the defendant’s interrogatories, the plaintiff states:
“During ‘the period’ my diaries were either stolen or seized. My diaries were well written and comprehensive. They contained daily duties, incidents, and details of corrupt practices. The diaries record corruption of all ranks…
My written report are no longer available…”
104 In Answer 5, to the defendant’s interrogatories, the plaintiff states:
“As mentioned in earlier reports and affidavits, my diaries were either stolen or seized. The vast majority of complaints were verbal to the Divisional Inspector based at Rosebud. Written reports are no longer available…”
105 Thus far, the missing documents that have received the most attention comprise the plaintiff’s diaries. Of course, had they been available and capable of being produced, they would not be evidence of the truth of the facts expressed within them. Furthermore, on one analysis, the plaintiff is more likely to be disadvantaged in the conduct of his case by their loss and unavailability than is the defendant, in the event the period of time to commence a claim is extended.
106 As far as documents more broadly are concerned, such as any that might identify the whereabouts of the plaintiff at various police stations during his career, or any complaints about staffing levels made by him to Police Command, one might anticipate that a record would exist of police personnel and their stationing during the plaintiff’s service as OIC at Rosebud. Mr Clarke was unaware if such records might be retained or the form they might take if they were.
107 The defendant’s affidavit of documents was sworn on 8 April 2020. As Mr Athanasiou- Georgiou has deposed in his affidavit sworn on 11 September 2020, the discovery predominantly consists of the plaintiff’s personnel and medical history unit file. He deposed to having been instructed by his client, that it has not retained any further documents which might have been relevant to the plaintiff’s claim.
108 The extent of discovery of the plaintiff’s personnel file may understandably exclude such documents comprising records pertaining to the service records of the police personnel and the ranking of officers stationed at Rosebud at the time of, and after, the plaintiff’s appointment as OIC. Already some investigations by the defendant have produced the names, ranks and occupational history of some persons and they have been spoken with by the defendant. The exercise might be difficult and time consuming to undertake and it might render an incomplete result, but in the absence of evidence that it necessarily would, I am not persuaded to conclude that this would be the inevitable result, and that the defendant’s affidavit need be the final word on the issue of documents. Thus, the adverted to prejudice by the defendant of an absence of documents to identify serving personnel is not a matter that I have assessed in the overall synthesis of the various considerations, as likely to give rise to significant prejudice in the defence to the allegations, and hence, the capacity of the defendant to be afforded a fair trial.
109 As far as complaints of staffing is concerned, the plaintiff said he made verbal complaints to district inspectors. Again, one might regard the defendant as holding the whip hand in being able to identify staffing ratios that operated at the time.
110 The defendant also submits that in the event of the grant of an extension of time, a prejudicial fact for it to confront is the limited extent of identification by the plaintiff of police personnel with whom he had dealings during the period at Rosebud, such as to provide information to the defendant to assist it with the conduct of its defence and, therefore, enable it to have a fair trial of the allegations. That grievance has already to some extent been addressed by me in the preceding paragraphs of these reasons. I have already mentioned that the plaintiff has not identified the Divisional Inspector referred to in Answer 5 to the defendant’s interrogatories. In his email dated 31 May 2020, which was in response to an email from Mr Athanasiou-Georgiou dated 21 May 2020, and which sought amongst other things, the first and last names of relevant witnesses, the plaintiff said of the District Inspector, “Inspector name forgotten”[26]. The plaintiff went onto explain in his email to the defendant’s solicitors that he could not name the various District Inspectors as there were too many.
[26]Ibid.
111 However, there are a number of people who have otherwise been identified and, moreover, people with whom the defendant has already been in contact.
Witnesses
112 The plaintiff’s Statement of Claim identifies officers from whom he was subject to supervision, direction and control. He has identified, Chief Superintendent Balloch, Superintendent Ken Blay, Inspector Jim Garrett, Inspector John Welsh and Inspector Ken Dainton whom it is alleged breached their duties to the plaintiff. The defendant submitted that in regard to each of them no particulars are provided as to their acts or omissions in the Statement of Claim.
113 The defendant also relies on its request for further and better particulars of the plaintiff’s Statement of Claim and submitted that although the further and better particulars dated 23 March 2020[27] provided further detail relevant to the allegations relied upon, the facts alleged remains sparse with respect to the persons involved. For example, the defendant notes that the police members involved in the complaint made of police misconduct by kicking an offender in the groin and those who made allegedly adverse comments about the plaintiff requiring the provision of written statements about that matter, are not identified. The defendant also notes also that the “sub-charge” officer in attendance and referred to by the plaintiff when he went on short leave and who addressed the matter of the presence of marijuana and a pistol on the plaintiff’s return also is not identified. This is correct. However, the identity of participants in the kicking incident and the sub-charge officer who found the gun and drugs have come to light and have been referred to in file notes of discussions with some of the potential witnesses.
[27]Exhibit JZG-6 to the Affidavit of Mr Athanasiou-Georgiou dated 11 September 2020.
114 The defendant submitted that although Inspector John Welsh is identified as a person involved in taking steps in response to the incident there is no allegation of any wrongdoing by him. This is true.
115 The defendant also submitted that no one who was in attendance when the plaintiff was present together with his wife at a social function in 2002 at which he was “treated poorly” is identified. However, the social isolation to which the plaintiff was exposed has been mentioned again by one of the potential witnesses.
116 The defendant also submitted that the District Inspector whom the plaintiff complains was made aware of the pornographic images that were allegedly sent to the plaintiff, but who told the plaintiff that nothing could be done, has not been identified. That is true.
117 The plaintiff has identified Superintendent Blay as the officer who allegedly stole items from a motor vehicle that had been impounded and whose behaviour caused the plaintiff shock. The Divisional Inspector who allegedly subsequently stole the plaintiff’s diary that contained a reference to the incidence of theft by Blay is not specifically identified.
118 Although the plaintiff identified the former retired police officer who allegedly passed himself off as a serving officer in order to obtain discounted goods at a Bunnings store, the relieving inspector to whom the plaintiff reported the incident and who instructed the plaintiff to ignore the matter because it was “being handled” and who refused the plaintiff permission to access his diary to note the matter so he could “cover myself” is not identified.
119 This issue of the identification of potentially relevant police personnel was further addressed by way of email correspondence between the parties.
120 Despite the incompleteness of identification, what can be also said, is that this is not a case in which all potential witnesses would be unavailable.
121 The defendant’s solicitor affidavit reveals the plaintiff having disclosed the names of the following persons:
· Sergeant Paul Dixon
· Senior Sergeant Bill Woodley
· Sgt Mick Romeril, OIOC Dromana
122 The defendant’s WorkCover Litigation Case Manager also provided the last known details and addresses of the following potential witnesses.
· John Balloch, retired Chief Superintendent
· Kenneth Blay, retired Superintendent
· Verne Collins, ex police chaplain
· Kenneth Dainton, retired Inspector
· John Fawcett, former Senior Constable
· James Garret, retired Chief Inspector
· Ann Marie Johnson, retired public servant
· John Welsh, retired Inspector
· Ronald Cooke, retired Chief Inspector
· Gordon McLeod, retired Superintendent
· Mr Athanasiou-Georgiou deposed that a number of people identified as potential witnesses were contacted from the list. He produced file notes of conversations.
123 According to the defendant, the file notes reveal significant prejudice faced by the defendant. It says that the potential witnesses either do not recall the allegations raised by the plaintiff or, if they do, can speak only generally to them.
124 Paul Dixon is an Acting Sergeant at Dromana Police Station who says he recalls having a falling out with the plaintiff over a farewell dinner that the social group had wanted to organise but which the plaintiff objected to as the officer had been charged with drug related offences and of providing questionable road worthy certificates. He is aware of the plaintiff having been involved in the Flinders Street shooting. He vaguely recalls the incident of the kicking and named one of the persons involved. He agreed that Rosebud was understaffed and this was a chronic problem. He thinks that the plaintiff was dealt with harshly by Superintendent Balloch who he believes did not like the plaintiff at all.
125 Kenneth Blay has reported having no memory of any of the alleged incidents. Blay was the District Superintendent stationed at Frankston and the superior officer about whom the plaintiff claims unlawfully took items from the impounded vehicle for his son. Such of Blay’s account that has been sought out by the defendant may be an example of the very vice attendant a diminished memory with the passage of such a lengthy period of time. The plaintiff, however, submitted that it is not surprising that Blay professes no knowledge of the conduct the plaintiff identified. The plaintiff has said on a number of occasions that he has encountered difficulty in obtaining corroborative accounts from former members with whom he has been contact which he has attributed to a reluctance to speak against a fellow member or former member.
126 John Welsh, like Blay, reports having no memory of the incidents complained about by the plaintiff.
127 Michael Romeril was OIC Dromana and a person the plaintiff has identified as having exhibited insubordination toward him. In notes of a conversation with Romeril, he says that his interactions with the plaintiff were brief and interspersed with lengthy periods without contact. Although the notes indicate an absence of knowledge of any specific allegations relied on by the plaintiff, Romeril’s account reveals that he did not hold the plaintiff in much regard and that he made no secret to the plaintiff of his dislike for him. The notes also record that there was hostility directed at the plaintiff that appears to have been based on the plaintiff’s appointment as OIC Rosebud on merit as opposed to years’ of service.
128 The balance of the people contacted by the plaintiff and whose notes of conversation were exhibited by Mr Athanasiou-Georgiou in an affidavit sworn on 9 October 2020, included William Woodley, Ronald Cooke, Kenneth Dainton and Gordon McLeod. Woodley recalls that he was the officer who found the gun and drugs in the plaintiff’s desk drawer and that the matter was the subject of an investigation. The recollections are otherwise expressed as being general about the plaintiff and the manner in which he conducted his command at Rosebud. A theme, however, is that there was a group who had disdain for the plaintiff. None of them profess to any particular awareness or indication of the plaintiff having exhibited a vulnerable mental state, although some have acknowledged that the plaintiff was an emotional man.
129 At the commencement of these reasons I mentioned that the hearing had been adjourned and the plaintiff filed an affidavit that included a statement from a former police officer John Fawcett. He states that he was a Senior Constable at Rosebud station from 22 November 1989 until his resignation from the Victoria Police on 13 August 1998. He says he recalls that the plaintiff was excluded from social functions and of tension that existed between the Sergeants at the plaintiff’s command position. Mr Clarke in submissions addressed the statement and pointed out that the period of time addressed ends in 1998 and before the period of contention relied on by way of conduct between 1999 and 2002. Should there be a trial of the matter the evidence would not necessarily be so constrained.
130 While most of the file notes produced by the defendant point to an absence of memory of specific incidents occurring upon which the plaintiff relies, there is some recollection of events and behaviour that reflect matters about which the plaintiff complains. What can be gleaned from a combination of some of the notes is that while the plaintiff was stationed at Rosebud and, more particularly, when he occupied the position of OIC, he was the subject of resentment by what would appear to have been an old guard of sergeants and that the plaintiff was looked down upon because of his supposed lack of “old style policing experience”. It seems to have been a place and, indeed a region, that pitted “a young Turk” up against an “old guard”.
131 I do not think it is appropriate on such an application as this, that I conduct a root and branch evaluation of the strength of the supposed competing accounts of evidence. Neither do I assume that in the event the plaintiff is granted an extension, he may not better be able to identify relevant witnesses, nonetheless, the evidence is scant to support a claim alleging negligence against the defendant for causing mental injury because of the absence of evidence that the defendant was aware or ought to have been aware of the plaintiff’s susceptibility or vulnerability to mental injury.
132 An issue might arise if the plaintiff’s first two statutory claims for injury that were predicated on work stress, and that were made during the ongoing currency of his employment as a police officer, might be capable of amounting to a form of notice that did or ought to have alerted the defendant to some vulnerability or, whether it may prove that such a connection is too tenuous and remote. It was not submitted by the defendant that the plaintiff’s case was legally hopeless. I would not regard it as such.
133 Addressing the matter of the duration of the plaintiff’s disability that arose on or after the date of the accrual of the cause of action, I was not addressed by the defendant on sub-paragraph 23A(3)(d) of the Act, and that is not surprising, as the paragraph is understood as dealing with legal (as opposed to physical or mental disability)[28]. I was not addressed that sub-paragraph 23A (3)(c) has relevance to this application.
[28]See: GGG v YYY [2011] VSC 429, [211].
134 Section 23A(3)(e) of the Act directs attention to the extent of promptness with which the plaintiff acted after becoming aware of his employment being capable of giving rise to a claim for damages. There is no evidence that the plaintiff was aware that the acts or omissions of the defendant to which his injury is attributable might give rise to an action for damages at common law until he was contacted by MIL[29]. Indeed, the plaintiff said explicitly that he was unaware of such a right before being contacted by MIL. I have already said that I consider it appropriate to draw a distinction between the plaintiff having made claims for statutory benefits under the applicable Workcover scheme as opposed to being aware of the potential entitlements for damages at common law in negligence for psychiatric harm. I have also earlier explained that I am unwilling to accept the defendant’s submission that I should attribute such a sufficient state of knowledge to the plaintiff by reason of his employment as a police officer.
[29]T 16, L 28-T17, L 4.
135 There is no evidence of any legal advice provided to the plaintiff prior to being contacted by MIL. Thereafter, that is to say, upon MIL commencing to act for the plaintiff, the proceeding moved ahead appropriately, including the acceptance of the plaintiff’s claim for a serious injury certificate by the defendant. Overall, I am satisfied that the plaintiff acted promptly once he was made aware of the possible claim for damages by MIL.
136 I am satisfied that the plaintiff was unaware of a limitation period. By comparison, a deliberate decision to allow a known limitation period to expire is a matter of some considerable significance in the overall consideration of matters, and it has been recognized as such. For example, in Itek Graphics Ltd v Elliott,[30] Ipp AJA said:
“A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo v Dawson.
In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at nought the purpose of the legislation.”
[30][2002] 54 NSWLR 207, [95] and [98].
137 The decision in Itek[31] is not entirely analogous because it concerned an extension of time under s151D(2) of the New South Wales Workers Compensation Act (1987). That legislation, unlike s23A of the Limitations Act, did not contain an inclusive list of factors to be considered whereas, in the Victorian context, a deliberate decision to allow a limitation period to expire is a factor falling within s23A(3)(a) to consider in synthesizing the competing considerations. There is no requirement in Victoria for an applicant to establish the existence of special circumstances. However, and despite the difference in legislation, a deliberate decision may, in the overall consideration of matters, be a powerful factor that militates against it being regarded as “just and reasonable” to extend time. There is ample authority that deliberateness is a consideration in such applications. In this case, I am satisfied that there was no deliberateness by the plaintiff.
[31]Ibid.
138 In addressing sub-section 23A(3)(f), medical reports were obtained as part of the management of the plaintiff’s previous statutory benefits claims. The nature of those reports were to attribute the plaintiff’s injury to his work, which of course is not to say, that a work injury attribution is commensurate with negligence at common law. There is no evidence that the plaintiff obtained legal advice until contacted by MIL.
139 I accept that the defendant has played no part in contributing to the delay.
Conclusion
140 The defendant submits that I should not be satisfied that the facts of this case make it “just and reasonable” to extend time to the plaintiff in circumstances where:
(a)there is no explanation proffered for the delay in bringing proceedings against the defendant;
(b)there is a presumed and significant prejudice to the defendant occasioned by the delay;
(c)the defendant has played no part in contributing to the delay; and
(d)it would suffer significant actual prejudice in responding to and thereby defending the proceeding.
141 I am satisfied that the plaintiff has provided a sufficient explanation for the delay by reason of a combination of a lack of awareness of a limitation period and coupled with a declining mental state which consequences or effects include the behaviour referred to by Dr Danesi. I accept that the defendant will experience presumed prejudice as a result of the extension of time by reason of the lengthy period of time that has elapsed since the accrual of the cause of action, and that those principles underpinning the rationale for a limitation period as explained by McHugh J in Brisbane South, will be compromised by an extension of time. However, I am not satisfied that the presumptive prejudice will preclude a fair trial being able to be conducted by the defendant of the allegations.
142 I am not satisfied that the defendant will suffer significant actual prejudice by reason of the apparent absence of memory or the limited recollection by potential witnesses of the impugned conduct and events relied on by the plaintiff. As I have said, it is the plaintiff who may be comparatively disadvantaged in the loss of his diaries, and what might prove to be recourse to, and reliance upon, a substantial oral evidentiary case. Nonetheless, with the availability of witnesses, in particular, Blay, Romeril and Dixon, the material does disclose an evidentiary connection to some allegations relied on by the plaintiff as having occurred at Rosebud and that caused or contributed to his mental state.
143 Overall, and having regard to all of the circumstances of the case, I am satisfied that on balance the plaintiff has persuaded me that it would be just and reasonable to extend time. In doing so, I am not satisfied that the actual prejudice to the defendant is significant such that a fair trial of the allegations against it cannot be conducted.
144 I will hear the parties as to any necessary additional orders that might be required and I will list the matter for further directions in the Self-Represented litigants list on a date to be fixed.
- - -
0
8
0