Odell v State of New South Wales

[2017] NSWSC 643

Supreme Court

New South Wales

Medium Neutral Citation:	Odell v State of New South Wales [2017] NSWSC 643
Hearing dates:	19 May 2017
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) The plaintiff is to file a further amended statement of claim in accordance with my reasons on or before 9 June 2017. (2) The plaintiff is to file an amended statement of particulars of the damages claim on or before 9 June 2017. (3) The defendant is to file an amended defence, addressing its limitation defence, inter alia, on or before 23 June 2017. (4) The plaintiff is to file any reply raising s 50C Limitation Act 1969 (NSW) issues upon which he wishes to rely on or before 14 July 2017. (5) Stand the defendant's notice of motion and the subpoena over for directions before me on 28 July 2017 at 9 30 am. (6) The plaintiff to have access, including photocopy access, to the further documents produced by the defendant on 17 May 2017.
Catchwords:	CIVIL PROCEDURE – police officer – mental injury – post-traumatic stress disorder – plaintiff alleges mental injury arising from duties as a police officer – whether the claim is statute-barred – whether a limitation defence is to be determined at an interlocutory stage or at trial – defendant seeks further pleadings of limitations issue – consideration of when the cause of action accrued – held that the burden of proof lies with the defendant in raising a limitation defence – plaintiff directed to amend pleadings
Legislation Cited:	Civil Liability Act 2002 (NSW) Limitation Act 1969 (NSW) Police Regulation (Superannuation) Act 1906 (NSW)
Cases Cited:	Commonwealth of Australia v Smith [2005] NSWCA 478 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Category:	Procedural and other rulings
Parties:	Grant Rodney Odell (Plaintiff)   State of New South Wales (Defendant)
Representation:	Counsel: M. McCauley (Plaintiff) M. Hutchings (Defendant)     Solicitors: McAuley Hawach Lawyers (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	2014/370578

EX Tempore Judgment (Revised)

1. These proceedings relate to a claim for damages for mental harm brought against the State of New South Wales by Mr Odell, a former long-serving police officer.

2. Mr Odell was attested as long ago as 1978 and served in various capacities until he ceased work in about 2008 "hurt on duty", as it is put in the Police Regulation (Superannuation) Act 1906 (NSW). He was eventually medically retired in December 2011 and the statement of claim was filed on his behalf by his previous solicitors in December 2014. The statement of claim was filed a few days after the third anniversary of Mr Odell's medical retirement.

3. The defendant has pleaded that the claim is statute-barred by virtue of the provisions of the Limitation Act 1969 (NSW). The defendant, in an attempt to bring this matter to a head, filed a motion seeking dismissal of the proceedings for want of due dispatch. Other relief was sought in the alternative.

4. It was apparent to me on reading the submissions of counsel on both sides of the record that the real issue relates to the need to crystallise the limitation issue for trial. It is not being said that the plaintiff has failed to prosecute his claim; rather, it is said that, from the defendant's point of view, the limitation issue provides it with a clear bar unless the plaintiff has some answer to it.

5. From the course of discussion with counsel this morning, it seems to me that the limitation issue requires better definition on the pleadings before it can be determined. For instance, if one considers the length of Mr Odell's service, there are probably not less than three different limitation regimes applicable from time to time. Moreover, as I have said, his injury falls into the category of mental harm as now governed by Part 3 of the Civil Liability Act 2002 (NSW) and there is authority in the Court of Appeal for the proposition that the cause of action does not accrue until the recognised diagnosable psychiatric condition has in fact arisen: see Commonwealth of Australia v Smith [2005] NSWCA 478.

6. On the material I have looked at, it may be that by about 2008, when he went off duty, Mr Odell was diagnosed as suffering from PTSD. If I am correct in my understanding of the principle for which Smith stands, that simplifies matters somewhat because the relevant limitation regime is the current regime established by Part 2 Division 6 of the Limitation Act brought in in December 2002.

7. A further complicating matter is that, as presently instructed, I would regard the burden of proof on the limitation issue to lie upon the defendant: see Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 71 - 72. That being so, it would be for the defendant to positively prove that proceeding with the matter is futile because there is no chance of the plaintiff overcoming the statutory bar.

8. Mr Hutchings of Counsel argued that one of the difficulties is that the averments in the statement of claim do not make clear what the plaintiff says about important aspects of his cause of action. The statement of claim does not plead when Mr Odell contracted the post-traumatic stress disorder (if that is the way of putting it), nor does it plead what steps could have been taken, and when, to avoid him suffering that mental disease. I think there is force in that argument and, with respect, Mr McAuley of counsel does not demur.

9. It seems to me, therefore, before one can identify whether the limitation issue can be determined in advance of the trial, the pleadings need to be amended so that the issue can be better crystallised. I should say I am provisionally of the view that, given the potential complexities because the claim is informed by facts occurring over some decades, it may well be that the limitation issue falls into that category, that is to say, the limitation issue in this case falls into that category which can only be determined at the trial: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514. But I am by no means convinced of that one way or the other.

10. Accordingly, and following discussion, counsel agree that the appropriate way of dealing with this matter is to adjourn the notice of motion and to make directions for the amendment of pleadings. I am of the view that that is a sensible approach.

11. There has also been discussion today about an ongoing dispute between the parties in relation to the defendant's compliance with the subpoena to produce documents, issued and served by the plaintiff. Apparently there has been further production in the last few weeks which the plaintiff's lawyers have not had the chance to inspect. Again, I am hopeful that this further production might resolve that issue, but that will not be known until the documents are inspected. I propose to make no directions about the subpoena other than that it may be revisited when the matter comes back before me for directions after the pleadings have been amended.

12. For these reasons, I make the following orders:

1. The plaintiff is to file a further amended statement of claim in accordance with my reasons on or before 9 June 2017.

2. The plaintiff is to file an amended statement of particulars of the damages claim on or before 9 June 2017.

3. The defendant is to file an amended defence, addressing its limitation defence, inter alia, on or before 23 June 2017.

4. The plaintiff is to file any reply raising s 50C Limitation Act 1969 (NSW) issues upon which he wishes to rely on or before 14 July 2017.

5. Stand the defendant's notice of motion and the subpoena over for directions before me on 28 July 2017 at 9:30 am.

6. The plaintiff to have access, including photocopy access, to the further documents produced by the defendant on 17 May 2017.

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Decision last updated: 23 May 2017