Rutter v New South Wales

Case [2005] NSWCA 231

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Rutter v The State of New South Wales [2005]  NSWCA 231

FILE NUMBER(S):
40526/04

HEARING DATE(S):               28 June 2005

JUDGMENT DATE: 06/07/2005

PARTIES:
Brendon Wayne Rutter (Appellant)
The State of New South Wales (Respondent)

JUDGMENT OF:       Handley JA McColl JA Hunt AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 9131/02

LOWER COURT JUDICIAL OFFICER:     O'Toole DCJ

COUNSEL:
B J Gross QC/K O Earl (Appellant)
P Menzies QC/L K Crowley (Respondent)

SOLICITORS:
Baker & Edmunds Solicitors (Appellant)
Crown Solicitor (Respondent)

CATCHWORDS:
LIMITATION OF ACTIONS - application for extension out of time - Limitation Act 1969, s 60C - determining issues of causation on final basis as opposed to determining whether the applicant could prove facts which demonstrated reasonable prospects of success at a final hearing. (D)

LEGISLATION CITED:
Limitation Act 1969
District Court Rules 1973

DECISION:
(1) Leave to Appeal granted. (2) The appellant to file the Notice of Appeal on or before 5 July 2005. (3)              Appeal allowed. (4) Order of O'Toole DCJ refusing the appellant's application for an extension of time to sue the respondent set aside. (5) Extend the limitation period for the appellant's causes of action accruing on and after 12 March 1995 to 21 December 2002. (6) Respondent to pay the costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA         40526/04
DC           9131/02

HANDLEY JA
McCOLL JA
HUNT AJA

Wednesday, 6 July 2005

Brendon Wayne RUTTER v THE STATE OF NEW SOUTH WALES

Judgment

  1. HANDLEY JA:     I agree with McColl JA.

  2. McCOLL JA:      Brendon Wayne Rutter seeks leave to appeal from a judgment of Judge O’Toole in the District Court of New South Wales in which her Honour dismissed his application, pursuant to s 60C of the Limitation Act 1969, to extend the limitation period for his claim for damages for personal injury against the State of New South Wales.

  3. At the conclusion of the oral argument the Court granted leave to appeal and ordered that the Notice of Appeal be filed on or before 5 July 2005.

    Statement of the case

  4. The appellant was appointed a probationary constable in the New South Wales Police Service on 5 December 1977.  He served as a member of the Service until 2000. On 31 October 2001 he was certified by the Police Superannuation Advisory Committee as incapacitated for police duty due to an infirmity of “generalised anxiety disorder and personality”. On 21 October 2002 the Delegate of the Commissioner of Police determined that the appellant’s infirmity was caused by his service as a police officer.

  1. On 21 December 2002 the appellant’s solicitors filed a Statement of Claim in the District Court in which the appellant sought to recover damages in respect of his psychiatric condition from the respondent.  The Statement of Claim pleaded that the appellant had joined the Police Service in 1977.  It alleged that during his service he:

    “… performed general duties and was involved in a number…

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AGLC
Rutter v New South Wales [2005] NSWCA 231
Case
[2005] NSWCA 231
Decision Date

CaseChat Overview and Summary

This case involved an appeal to the New South Wales Court of Appeal concerning an application for an extension of time to commence proceedings under section 60C of the *Limitation Act 1969* (NSW). The appellant, Mr Rutter, sought to extend the limitation period for causes of action that accrued on or after 12 March 1995, against the respondent, New South Wales. The primary judge had refused the application for an extension of time.

The central legal issue before the Court of Appeal was whether the primary judge had erred in determining that the appellant had not demonstrated a reasonable prospect of success at a final hearing. Specifically, the court had to consider the correct approach to assessing causation and the evidence required to satisfy the "just and reasonable" threshold under section 60C(2) of the *Limitation Act*. This involved determining whether the appellant needed to prove his cause of action on a final basis or merely demonstrate that there was evidence to establish a reasonable prospect of success.

The Court of Appeal reasoned that section 60C of the *Limitation Act* does not require a plaintiff to establish that there is evidence to prove the cause of action in the same way as at a final trial. Instead, the applicant must prove facts from which the court can be satisfied that there is a reasonable prospect of success. The court noted that the appellant's cause of action in negligence was complete upon suffering measurable loss or damage, and time commenced to run from the accrual of that damage, regardless of awareness. The court found that the primary judge had not adequately appreciated the evidence, including reports from Dr Klug and Ms Walker, which supported the appellant's contention that the onset of his psychiatric condition could be traced to around March 1995 and was work-related. This evidence was considered sufficient to demonstrate reasonable prospects of establishing at a final trial that the condition arose around March 1995 and was attributable to the respondent's breach of duty.

Consequently, the Court of Appeal allowed the appeal, set aside the order refusing the extension of time, and extended the limitation period for the appellant's causes of action accruing on and after 12 March 1995, to 21 December 2002. The respondent was ordered to pay the costs of the appeal.

Orders

Orders of the court

(1) Leave to Appeal granted. (2) The appellant to file the Notice of Appeal on or before 5 July 2005. (3) Appeal allowed. (4) Order of O'Toole DCJ refusing the appellant's application for an extension of time to sue the respondent set aside. (5) Extend the limitation period for the appellant's causes of action accruing on and after 12 March 1995 to 21 December 2002. (6) Respondent to pay the costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no express requirement in s 60C that, in an application to extend time, a plaintiff must establish that “there is evidence to establish the cause of action”: cf s 58(2)(b). It has been held, however, that in order to satisfy the requirement in s 60C(2) that it is “just and reasonable” for the Court to order that the limitation period for a cause of action be extended, an applicant must “prove facts from which the Court can be satisfied there is … a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing” (emphasis added): Yu v Speirs [2001] NSWCA 373. The appellant’s cause of action in negligence was not complete until he suffered measurable loss or damage: Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 at [13] – [14] per Handley JA; see also Giles JA (at [41]). Time commenced to run under the Limitation Act when such damage accrued even though the appellant (as appeared to be his contention) was not aware of it: ibid (at [15]). The appellant’s argument that he suffered damage at the onset of his psychiatric condition in about March 1995 meant he had three years from that date in which to commence proceedings: s 18A(1)(b), Limitation Act. That period expired in March 1998, over 4 years before his Statement of Claim was filed. The burden the appellant was required to discharge in order to establish that he had sufficient evidence that he had reasonable prospects of success was explained by Hunt J (as his Honour then was) in Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443 as follows:“… the plaintiff must make it appear that the evidence to establish his cause of action exists and that it is available to be adduced at the trial. The test is thus somewhat less exact than that which is applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury. A certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted …” His Honour’s observations, albeit expressed in relation to s 58(2) of the Limitation Act, have equal application to s 60C. Although they do not address the precise point which arises for resolution in this case, they make it plain that the issue the appellant was required to address was not whether he could prove his cause of action in the sense for which proof would be required at a final trial but, rather, that it would not be futile to extend time because, for example, an element of his cause of action was incapable of being established: cf Salido v Nominal Defendant [1993] 32 NSWLR 524 at 528 per Gleeson CJ. Although her Honour referred to the reports from Dr Klug and Ms Walker, she did not appear to appreciate that their opinions supported the appellant’s contention that the onset of his psychiatric condition could be traced to about March 1995. There was, accordingly, evidence which supported the appellant’s contention that his psychiatric condition was work-related and, arguably, dated back to at least the time of his investigation of the fatal industrial accident. Thus there was sufficient evidence, in my view, that the appellant had reasonable prospects of establishing at a final trial that he suffered the onset of a psychiatric condition in or around March 1995 and that condition was attributable to the respondent’s breach of duty. Whether or not that conclusion would be reached after all the evidence was considered was a matter for the trial.

Decision

Reasons for decision

There was evidence before the primary judge from a psychiatrist, Dr P Klug, that the appellant said his symptoms had begun in about 1996 and worsened thereafter. Dr Klug diagnosed the appellant’s symptoms as being consistent with a chronic adjustment disorder with a predominantly anxious mood which, in Dr Klug’s opinion “was substantially in response to work-related stresses”. Ms Walker, a Clinical and Forensic Psychologist retained by the appellant’s solicitors, took a history of his investigation of the fatal industrial accident. She recorded that, “[d]uring this time, or perhaps somewhat after, Mr Rutter began to suffer panic attacks which hit suddenly or were associated with very heavy sweating”. She agreed that the appellant was suffering from an adjustment disorder with mixed anxiety and depressed mood as defined in DSM-IV – a disorder she opined was “entirely work-related”.The decision below The primary judge noted (at [9]) that following his appointment as a probationary constable the appellant “intermittently … performed hazardous and/or distressing police duties”. After referring to some early incidents her Honour recorded (at [17] – [21]):“17.Between 13 March and 20 September 1995, the plaintiff investigated the traumatic death of a worker and gave evidence to a coronial inquiry into the death. The horrible appearance of the deceased, the circumstances of the death and the plaintiff’s having to give evidence thereon (exhibit 10) caused the plaintiff’s natural, proportionate distress.18.In 1995 or 1996, Mr Brand* noticed a change in the plaintiff’s behaviour. The plaintiff was reluctant to discuss his duties. He continued to work diligently but had difficulty completing his duties. Mr Brand discussed with his superiors at Merrylands Police Station the number of officers available to perform the Station’s work and the plaintiff’s apparent difficulty completing an equitable proportion thereof. Mr Brand offered and/or provided the plaintiff with temporary assistance but realised, eventually, that they and their fellow police officers would be overworked for the foreseeable future.19.In 1996, Dr Nguyen (or a member of Dr Nguyen’s general practice) diagnosed the plaintiff’s hypertension and prescribed appropriate medication including Blocadrin. Intermittently thereafter, the plaintiff was irritable and insomniac. He noticed a burning sensation around his neck. He had episodic chest pain and tightness. He suspected that his symptoms were cardiac in origin and associated them with his police duties. Dr Nguyen diagnosed the plaintiff’s anxiety, caused or aggravated by hypertension. Between 1997 and 1999, the plaintiff did not enjoy his duties but he did not expect his anxiety to incapacitate him. He did not expect his anxiety to deprive him of his career as a police officer.20.In November 1999, the plaintiff attended a volatile industrial dispute in the course of his duties. Between 1 and 5 November 1999, the plaintiff feared for his safety and apprehended serious physical injury. When the plaintiff completed his duties near a picket line he felt relieved but there was no material change in his affect.21.Between mid-November 1999 and January 2000, there was a progressive radical change in the plaintiff’s affect. He was irritable with his fellow police officers and preoccupied with his duties. The plaintiff’s abnormal perspiration, episodic tachycardia, flushing associated with a boiling sensation, tinnitus and insomnia were symptomatic of a psychiatric illness.”[* Mr Brand was a Sergeant who worked with the appellant from 1983 until at least the late 1990’s]

Ratio Decidendi

Legal Principle Established

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