Reeves v NSW

[2005] NSWSC 1138

CITATION:	Reeves v NSW [2005] NSWSC 1138
HEARING DATE(S):	15 & 16 June 2004
JUDGMENT DATE :	15 November 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Application granted in part.

CATCHWORDS:	LIMITATION ACT: application for extension of time - action by former police officer for damages for psychological injury - effects of incidents during police service, including Wood Royal Commission and rejection for promotion - whether viable cause of action - explanation for delay - prejudice to defendant
LEGISLATION CITED:	Crown Proceedings Act 1988 Limitation Act 1969 ss 18A, 60C, 60G, 60E Police Service Act 1990 ss 64, 71, 94A
CASES CITED:	Gould v State of NSW [2005] NSWSC 1121 Yu v Speirs [2001] NSWCA 373 Sullivan v Moody (2001) 207 CLR 562 State of NSW v Paige (2002) 60 NSWLR 371 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ASB-Tech Services Pty Ltd v Doeland & Anor [2003] NSWCA 167 State of NSW v Brennan [2004] NSWCA 206 State of NSW v Donnelley [2004] NSWCA 133 Holt v Wynter (2000) 49 NSWLR 128
PARTIES:	Steven Anthony Reeves State of New South Wales
FILE NUMBER(S):	SC 20333/2000
COUNSEL:	G Melick SC/J Berg (Plaintiff) G Laughton SC/N Newton (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) Crown Solicitors Office (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

15 November 2005

20333/2000 Steven Anthony Reeves
v
State of New South Wales


JUDGMENT

1 HIS HONOUR: The plaintiff, Steven Anthony Reeves, is a former police officer. He has brought proceedings in this Court against the State of New South Wales, pursuant to the Crown Proceedings Act 1988, for damages for psychological injury alleged to have occurred as a result of experiences during his police career. The action is based upon what are described as thirteen “traumatic incidents”, said to have occurred between 1970 and 1998. The statement of claim was filed on 19 July 2000. By s18A of the Limitation Act 1969, the action is subject to a limitation period of three years from the accrual of the cause of action. Before me is an application by the plaintiff for an extension of time for the filing of the statement of claim, relying upon provisions of the Limitation Act to which I shall turn later.

2 Details of the thirteen incidents relied upon were supplied in answer to a request for particulars. Ten of those incidents (incidents 1-8, 12 and 13) were distressing, threatening or violent events in which the plaintiff was involved in the ordinary course of his police duties. It is unnecessary to describe them for present purposes. Indeed, no further reference need be made to the twelfth and thirteenth incidents because they are alleged to have occurred during 1998 and, accordingly, are themselves within the limitation period. The remaining incidents (incidents 9-11) are of a different nature. The ninth incident relates to the plaintiff’s care of eleven other police officers while he was acting as a welfare officer in 1994. The tenth incident relates to his experience in 1995 of the Wood Royal Commission into the New South Wales Police Service, and the eleventh to his unsuccessful application for promotion in 1996.

3 The application raises issues akin to a similar application by another former police officer, Mr Peter Gould: Gould v State of NSW [2005] NSWSC 1121. The matters were heard together, but Mr Gould’s application is the subject of a separate judgment.

The plaintiff’s case

4 The plaintiff’s case is outlined in his lengthy affidavit of 8 October 2002 and its annexures, supplemented by his oral evidence. He joined the Police Service in 1970, and appears to have had a successful and creditable career over the ensuing years. His experience was varied, having been involved in general duties and investigative work as a detective and having served periods in specialised units, including the Tactical Response Unit and the State Drug Crime Commission (now the New South Wales Crime Commission). By the mid-1990s he had attained the rank of Detective Inspector.

5 The various incidents relied upon are referred to, in greater or lesser detail, in the body of the plaintiff’s affidavit and in the history he gave to a general practitioner, two psychiatrists and a psychologist, whose reports are annexed to the affidavit. The ninth incident, his experience while acting as a welfare officer, relates to assistance he gave to a number of fellow officers who faced personal problems arising from their employment. Some had themselves been exposed to stressful events in the course of their police duties, while others (including the other applicant for extension of time to whom I referred, Mr Gould) had been adversely named in the Wood Royal Commission.

6 The tenth incident, the plaintiff’s own encounter with the Royal Commission, arose from his association with Chief Superintendent Bob Lysaught, who was named as corrupt in evidence at the Commission. Mr Lysaught had been the head of the Fraud Enforcement Agency, to which the plaintiff was attached around the mid-1990s. As is well known, an important witness in the Commission about corrupt police activity was Det Sgt Trevor Haken. In giving evidence himself in September 1995, Mr Lysaught admitted that he had requested members of the Fraud Enforcement Agency to seek out information adverse to Mr Haken because he thought that he was “telling lies”. He added that he had delegated the co-ordination of that task to the plaintiff.

7 This evidence was the subject of publicity the following day in the Sydney Morning Herald. Part of the article was as follows:

Mr Lysaught agreed with Justice Wood that the question of Sergeant Haken’s integrity had nothing to do with the work of members of the Fraud Enforcement Agency. It was an informal inquiry he had assigned to his lieutenant, an Inspector Reeves.

8 This the plaintiff denies. In fact, he had been requested through appropriate channels to attend upon senior counsel representing the Police Service in the Royal Commission, who asked him to interview a number of people for the purpose of an investigation about Mr Haken. (In the event, he did not do so, but that is of no present relevance.) The publicity distressed him, as did the fact that senior counsel for the Police Service did not publicly set the record straight at the time the evidence was given. The following day he expressed his concern to senior counsel, who explained the true position to Justice Wood, but there was no retraction or apology in the press.

9 To him the article conveyed that he had been acting improperly on the instructions of an allegedly corrupt police officer. He noticed that fellow officers avoided him. He received a phone call from a detective sergeant whom he considered a friend, who wanted to know whether it was true that he “was digging up dirt on a supergrass”. Generally, in some of his conversations with colleagues it appeared to him that they were questioning his integrity.

10 The eleventh incident relates to his unsuccessful application in 1996 for the position of Commander of the Licensing Enforcement Agency. He made the application in January of that year and was interviewed for the position by an interview panel in the following month. That panel selected him for the position, but it was one requiring appointment by the Governor on the recommendation of the Police Board: s64 of the Police Service Act 1990. Section 71 of that Act required the Board, in deciding to make a recommendation for appointment, to obtain and have regard to a report by a police internal affairs officer under s94A.

11 In June 1996 the plaintiff was informed by a letter from the Board that it did not intend to proceed with his appointment because doubts about his integrity were raised in a s94A report, “as well as at the Royal Commission”. His evidence was that about two months later, in a telephone conversation with the secretary of the Board, he was told that his application had been frustrated by his association with Mr Lysaught and the Board’s concern about his “part in the Haken matter”.

12 It was around the time of his being mentioned in evidence in the Royal Commission, with its attendant publicity, that he began to experience the physical and emotional symptoms of the psychological injury which is the foundation of his claim. Among those symptoms were headaches, nausea, forgetfulness, lack of motivation at work, and nightmares about the earlier traumatic incidents to which I have referred. In his affidavit he deposed that after the various traumatic incidents, including his being mentioned at the Royal Commission and his failing to secure his promotion, he received no “intervention” from senior officers, no counselling and no assistance from the Police Welfare Branch. It was not until July 1997 that he first had contact with the Welfare Branch, having been referred to it by a police medical officer, but the effect of his evidence was that the assistance afforded to him was intermittent and inadequate. In June 1999 he was retired from the Police Service on medical grounds, having been diagnosed as suffering from a chronic adjustment disorder with anxiety and depression (and also suffering from a degenerative condition of his knees resulting from injuries during a work related sporting event).

13 In August 1997 he had a consultation with Dr Robert Lewin, psychiatrist, on behalf of the Police Service in connection with a claim for “hurt on duty benefits.” He was treated by his general practitioner and by Dr John Westerink, psychiatrist and Mr Gerard Glancey, psychologist. All these experts provided reports, either to the general practitioner or to the Police Service. It is unnecessary to go to the detail of those reports. It is sufficient to say that, although they focus upon the plaintiff’s experience of the Royal Commission and his failed application for promotion, they also refer to the earlier traumatic incidents. They record his history of psychological symptoms and their effect upon his life, including a pattern of binge drinking and difficulties in his relationship with his wife and family.

14 Dr Lewin arrived at a “working diagnosis” of adjustment disorder with mixed emotional features, while Dr Westerink diagnosed post traumatic stress disorder and associated major depression. In his report, Mr Glancey concluded:

Mr Reeves suffers stress related mental disturbance associated with traumatic ordeals experienced in his earlier career. He also suffers stress related mental disturbance associated with his experiences with the Royal Commission, suggestions of corruption by the media, loss of his reputation/integrity amongst peers and management. He is also stressed over being denied a promotion without justification or explanation of the Police Board’s behaviour.

He detected symptoms of post traumatic stress and thought that the plaintiff’s “current disturbance” supported a diagnosis of adjustment disorder with mixed anxiety and depressed mood.

15 Put shortly, the plaintiff alleges that he suffered a significant psychological injury as a result of a variety of experiences during his police career and that the defendant was in breach of a duty to him, as it is expressed in the statement of claim, “to take reasonable care for his safety by providing a safe work environment and a proper and efficient rehabilitation program and full and adequate access to counselling services.”

The application

16 The application, as filed, seeks an extension of time under s60C of the Limitation Act, which enables a court to extend the limitation period for up to five years. The plaintiff was given leave at the hearing to amend the application to include a claim for relief under s60G, which imposes no upper limit upon the period for which an extension might be granted. A similar amendment was allowed in Gould v State of New South Wales (supra), for much the same reason: it was thought that there might have been a question when a cause of action arose, given that the first eight traumatic incidents relied upon dated from the early 1970s to the late 1980s.

17 However, any cause of action accrued only when the plaintiff suffered damage, that is, the psychological injury. In final written submissions it was common ground that, whatever might have precipitated that injury, the damage could not have been suffered earlier than September 1995, when he described the symptoms to which I have referred after the publicity of Mr Lysaught’s evidence at the Royal Commission. As I have said, the statement of claim was filed in July 2000. That being so, s60C has sufficient scope to afford the plaintiff the relief he seeks and there is no need to resort to s60G. The fundamental question is whether, in the terms of s60C(2), it is “just and reasonable” to grant the extension.

Viable cause of action?

18 Counsel for the defendant submitted that the application should be refused because the plaintiff had failed to establish a viable cause of action, referring to Yu v Speirs [2001] NSWCA 373. I set out the relevant principles in Gould at [13] and [25], and I need not repeat them.

19 As to the first nine incidents, it was argued that the evidence falls short of establishing a causal connection between them and the plaintiff’s condition, and that the expert evidence does not point to any act or omission on the part of the Police Service in relation to them. The plaintiff acknowledged in evidence that he had not approached the Police Welfare Branch, although he had always been aware of its existence. He also did not approach the Police Psychology Unit. He could not recall when that unit was formed, but was certainly aware of it before 1995. He said that on occasions he sought advice from senior officers, the nature of which he did not disclose, but he did not seek any counselling outside the Police Service.

20 There is considerable force in this submission, and it must be said that it was not addressed in submissions in reply on behalf of the plaintiff. Indeed, the nine incidents received relatively little attention in the submissions of counsel for the plaintiff generally. As I have said, while they are referred to in the expert reports, the primary focus of those reports is upon the Royal Commission and the promotion application.

21 That said, it does appear to me that the evidence is capable of supporting an inference that those earlier incidents contributed to the plaintiff’s psychological state from the mid 1990s. However, I find it unnecessary to decide this question in relation to the first eight incidents because, as will be seen, I would exercise my discretion against allowing the plaintiff to pursue a claim founded upon them. The ninth incident, arising from the plaintiff’s acting as a welfare officer, falls into a different category. There appears to me to be sufficient evidence of duty, breach and damage to pass the threshold test set by the authorities, and there are not the same discretionary considerations militating against granting the plaintiff relief.

22 The argument of counsel for the defendant about the plaintiff’s failure to seek the assistance of Police Welfare or the Psychology Unit is also applicable to the tenth and eleventh incidents, the Royal Commission and the failed promotion application. As to the tenth incident, counsel also pointed out that the proceedings in the Royal Commission and media publicity were independent of the Police Service and beyond its control, and that any claim based upon the publicity and the failure of the relevant media outlet to retract it intersected with the law of defamation, raising the considerations discussed in Sullivan v Moody (2001) 207 CLR 562 at [53] – [54]. The same points were made in Gould at [20] ff.

23 However, as in Gould, counsel for the plaintiff made it clear in submissions in reply that the claim is founded not upon the proceedings in the Royal Commission as such, but upon the response of the Police Service to the plaintiff’s experience of it. What is alleged is that it was foreseeable that police officers might be the subject of false allegations in evidence at the Commission and that the defendant was in breach of a duty to “have in place processes” to ameliorate psychological injury which those officers might suffer as a result.

24 As to the eleventh incident, it was submitted for the defendant that the Police Board is a statutory body, created by the Police Service Act and independent of the Police Service itself. Further, it was argued that the Board owed no duty of care to the plaintiff in the discharge of its statutory functions, for the reasons of public policy identified in Sullivan v Moody and State of New South Wales v Paige (2002) 60 NSWLR 371. This is also a matter which was not adequately dealt with in the plaintiff’s submissions in reply, except to suggest that the Board is a defendant in the proceedings. It is not a question which I would be prepared to decide in the absence of full argument. In any event, as I understand it, the plaintiff’s case is that the Police Service failed in a duty to mitigate foreseeable psychological injury resulting from the Board’s decision.

25 Accordingly, while the defendant has raised significant issues about the case on the tenth and eleventh incidents, I am satisfied that the plaintiff’s evidence is sufficient to pass the threshold test in respect of them also. As to those incidents and the ninth incident, I do not overlook the report of Associate Professor Richard Bryant, psychologist, obtained on behalf of the defendant (although it was not referred to in final submissions). I turn, then, to consider other matters bearing upon the exercise of the discretion to grant an extension.

Delay/prejudice

26 Whether an extension of time should be granted also turns upon the considerations in s60E of the Limitation Act, against the background of authorities such as Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and ASB-Tech Services Pty Ltd v Doeland & Anor [2003] NSWCA 167. Those authorities were also referred to in Gould at [26] ff, and need not be revisited. It is necessary to examine the length of delay in bringing the proceedings and the reasons for it, together with the prejudice to the defendant, both presumptive and actual.

27 Before turning to the evidence about the delay, it is convenient to deal immediately with the first eight incidents. As to them, the defendant has made out a substantial case of actual prejudice, arising from the death of relevant witnesses, including the plaintiff’s commanding officers at different times, or the inability to locate them, together with the lack of contemporaneous records. The evidence about this is conveniently summarised in the defendant’s written submissions and it need not be set out here.

28 Counsel for the plaintiff sought to downplay this evidence by the observation that the claim relates to the Police Service’s system rather than to misbehaviour within it, citing State of New South Wales v Brennan [2004] NSWCA 206, per Cripps AJA at [33] – [37]. However, as counsel for the defendant argued, the absence of relevant witnesses and records deprives it of the opportunity to investigate the plaintiff’s condition after each of the incidents, any steps taken at the time to alleviate that condition and any procedures which might then have been available to assist him. The observations of Giles JA in State of New South Wales v Donnelley [2004] NSWCA 133 at [51] – [54], upon which counsel relied, are apt.

29 The same cannot be said, however, of the ninth incident. As to it, the defendant relies only on evidence that it is “likely” that any records of the plaintiff’s welfare assistance of fellow officers would by now have been destroyed. This incident arises from events towards the middle of the 1990s. In his affidavit the plaintiff named the officers whom he assisted and supplied contact details for some of them. Apart from one officer who committed suicide, there is nothing to suggest that they are not all available to the defendant. Nor is it suggested that officers commanding the plaintiff at the relevant time are unavailable. No actual prejudice was asserted in respect of the tenth and eleventh incidents.

30 Let me turn, then, to the question of delay. About this the plaintiff gave evidence both by way of affidavit and orally, and I also have an affidavit of his solicitor. There is some inconsistency in this material.

31 The plaintiff deposed that he was not aware of his condition (which he described as post traumatic stress disorder) until about the middle of 1997, after consultations with Dr Westerink. It was not until early 1998 that he realised that that condition was the result of the way he had been treated by the Police Service. He went on to depose that in October 1999 he consulted his present solicitor, who advised him that he might have a claim against the defendant. He explained that in the meantime he was on antidepressant medication, which caused him to be “very sick, confused and unable to make decisions.”

32 In cross-examination, he acknowledged that by July 1996 he knew that he was not functioning properly in his employment as a result of his being named in the Royal Commission and being rejected for promotion, as well as his difficulty in coping with the task of providing welfare assistance to other officers. He had taken leave in January 1997 on the basis, among other things, of post traumatic stress disorder, anxiety and depression. In 1996 he had instructed a different firm of solicitors to pursue the question of his promotion and he retained them for the purpose of seeking his medical discharge, but he did not seek their advice about proceedings against the Police Service for damages.

33 The affidavit of his present solicitor disclosed that he consulted her for advice about a claim against the defendant in July 1999. Later in that year she briefed counsel to advise about the matter and, in due course, the statement of claim was issued in July 2000. Submissions on behalf of the defendant were centred on the delay up to the time the plaintiff first consulted that solicitor, and no point was taken about the passage of time thereafter.

34 As was the case in Gould (at [29]), the plaintiff’s explanation for the delay is not entirely satisfactory. However, it is reasonable to have regard to his psychological condition and, in particular, to his unchallenged evidence about the effects upon him of his medication. For reasons similar to those I found in Gould (at [29] – [30]), I am satisfied that the proper exercise of discretion favours granting the plaintiff relief for a claim in respect of the ninth, tenth and eleventh incidents. Confined to those incidents, the delay in bringing the claim is not unduly long. The events upon which it is based are relatively recent, and no actual (as opposed to presumptive) prejudice has been established. It does not appear to me that a trial, so confined, would be unfair and I am satisfied that it is just and reasonable to grant the extension of time sought.

35 Accordingly, for the purpose of the claim based upon the ninth, tenth and eleventh incidents, I extend the time for filing the statement of claim to the day on which it was filed, 19 July 2000. However, applying the observations of Sheller JA in Holt v Wynter (2000) 49 NSWLR 128 at [121], the plaintiff should pay the defendant’s costs of the application. As in Gould, his counsel put no argument to the contrary.

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