Saunders v State of Queensland
[2001] QSC 383
•2 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Saunders v. State of Queensland [2001] QSC 383
PARTIES: SAUNDERS
(Applicant/Plaintiff)
v
STATE OF QUEENSLAND
(Respondents/Defendants)
FILE NO: S408/2000
DIVISION: Trial Division
DELIVERED ON: 2 October 2001
DELIVERED AT: Rockhampton
HEARING DATE: 27 August 2001
JUDGE: Dutney J
ORDERS:The period of limitation for the action be extended so that it expires on 31 August 2000. By consent the costs be reserved.
CATCHWORDS: LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – Obsessive compulsive disorder – Post traumatic stress disorder – Whether plaintiff’s condition within means of knowledge of the plaintiff before the relevant date – Whether a decisive fact of a material nature.
Limitation of Actions Act 1974 (Qld), s30, s31
Dick v University of Queensland [2000] 2 Qd R 476 followed.
Midwest Radio Ltd v Arnold (QCA – Appeal 4010/98 – 12 Feb 1999 – unreported) referred to.
Pizer v Ansett [1988] QCA 298 referred to.
Queensland Corrective Services Commission v Gallagher [1998] QCA 426 referred to.
Taggart v The Workers’ Compensation Board [1983] 2 Qd R 19 referred to.
COUNSEL:DVC McMeekin SC with him AM Arnold for the Applicant/Plaintiff
RJ Douglas SC for the Respondent/Defendant
SOLICITORS: Grant & Simpson for the Applicant/Plaintiff
Crown Solicitor for the Respondent/Defendant
Dutney J: This is an application for an extension of time within which to commence an action for personal injury arising out of a period of employment of the applicant by the respondent at Rockhampton Correctional Centre from July 1996 until December 1996.
The applicant was employed as a trainee clerk and directed to work initially in the kitchen and bakehouse where he says he was exposed to high risk and dangerous prisoners. The applicant says he received no training in handling difficult or dangerous prisoners and guidelines requiring him to be accompanied by a correctional officer at all times were not followed. In August or September 1996 the applicant claims to have been threatened by a knife. On other occasions the applicant claims to have been taunted by prisoners. In October 1996 as a result of a correctional officers’ strike the applicant was assigned to correctional officer duties although he was neither trained for nor employed to do such duties. While supervising prisoners the applicant was threatened and his boots were taken from his feet by a prisoner and stolen.
The result of these events was that shortly after the strike the applicant began to exhibit signs of stress. He was having difficulty swallowing food and made multiple visits to his GP for reassurance. The applicant was unable to complete his traineeship and his employment was terminated on 9 December 1996 for continued absence from work. At this time the applicant’s symptoms were fear of choking and problems with eating, fear of travel, fear of crowds and being in crowded places, problems sleeping, vomiting, depression, panic, nightmares and weight loss.
Between ceasing employment at the prison and early 1999 the applicant had occasional work as a labourer, work as a removalist and from April 1998 until January 1999 work as a teacher’s aide at Glenmore State School. The applicant ceased this latter work in January 1999 to travel to Mackay to try out for a position with the Cowboys Rugby League team. The applicant was unsuccessful in obtaining a contract and returned to Rockhampton. By the time of the football trial the applicant felt himself fit and was feeling generally good with himself.
The applicant’s condition has fluctuated. His symptoms were bad during 1997 and part of 1998. He was left feeling depressed and lacking motivation. He felt he improved considerably during 1998 and 1999. He was taking medication. In 1999 the applicant felt he had recovered and ceased the medication. In 2000 he found his symptoms returned, becoming worse in the second half of the year.
From the time of his departure from the correctional institution the applicant had consulted Mr Bruce Acutt, a psychologist. The dates of the consultations were 17 January, 1997; 4 February, 1997; 11 March, 1997; 5 August 1998; 19 August, 1998; 4 September, 1998; 17 September, 1998; 27 October, 1998; 1 December, 1998; 23 February, 1999; 28 February, 2000; 29 June, 2000 and regularly thereafter.
Despite the frequency of the visits, Mr Acutt noted an improvement in symptoms by September 1998 which corresponds with the evidence of the applicant. There was some minor relapse in February 1999 which corresponded with the football trial. This relapse seemed to have been temporary as evidenced by the applicant obtaining a series of short-term jobs in an aged care home, as a labourer, with Skilled Engineering and again as a labourer in the period from April to1999 to April 2000. By the end of that period the symptoms had apparently returned.
The applicant commenced proceedings on 31 August 2000. To enliven the discretion to extend the limitation period the applicant must have discovered a material fact of a decisive nature after 31 August 1999. The fact must have been outside the applicant’s means of knowledge before that date.
The fact relied on in this case is the nature and extent of the injury. Three separate features are relied upon as not being within the applicant’s knowledge before the relevant date – the nature of the disorder, the seriousness of the disorder, and the duration of the disorder.
No recognised psychiatric disorder was diagnosed until Mr Acutt identified an obsessive compulsive disorder in June 2000 and later diagnosed post traumatic stress disorder. These conditions are likely to be permanent and significantly affect the applicant’s capacity to cope normally with life particularly in the area of employment.
In his oral evidence Mr Acutt confirmed that he would not have diagnosed an obsessive compulsive disorder before August 2000 although he would have considered the applicant to be suffering from an anxiety disorder as at February 1999 and a chronic depressive disorder at about the same time. Neither of these conditions is as serious as the obsessive compulsive disorder later diagnosed. Nonetheless it was Mr Acutt’s opinion that as at February 1999 the applicant’s prognosis for a return to work was good. This is born out by the work history described above and the fact that the applicant did not again consult Mr Acutt until February 2000.
The applicant’s oral evidence was a mixed bag. When questioned by Mr Douglas SC the applicant readily agreed that as at June 1999 he felt his life was at a standstill as a result of the employment by corrective services. He had lost a lot of money because of the effect on his football and had no belief he would ever get better.
When re-examined by Mr McMeekin SC he said almost the opposite. He said he had trained for football effectively throughout 1998. He was able to put in his best effort at the Cowboys trial and was simply not good enough. He felt good about himself even after the unsuccessful trial and stated that his giving up various jobs was not related to depression or similar conditions.
My impression of the applicant was that he had little real understanding of what he was saying and little real comprehension of the questioning from either counsel. He was, in my view, plainly in a psychologically precarious state when he appeared before me.
The applicant’s GP, Dr Wilson also gave evidence which confirmed the pattern. Dr Wilson’s records before November 1999 were not available being apparently stored on a computer which was having some technical problem which made the data inaccessible. Nonetheless Dr Wilson’s recollection was that the applicant was a frequent visitor during 1998 but seemed to improve in 1999 in that the visits were noticeably fewer.
What I have to consider is whether the fact, which is said to be of a decisive nature was in fact decisive and if so whether it was within the means of knowledge of the applicant before the relevant date. In considering the second question I have to take the applicant as I find him.[1] A fact is not within a person’s means of knowledge if the person does not know the fact and as far as the fact is able to be found out by the person he has taken all reasonable steps to find it out.[2]
[1] Dick v University of Queensland [2000] 2 Qd R 476 at para [30]. Dr Barry in her affidavit at para 4(viii) suggests that patients with the type of condition from which the applicant suffers often have little insight into the lifelong nature of their condition and anticipate complete recovery. This is consistent with the applicant ceasing medication in 1999. This is not inconsistent with what was said by Thomas JA in Pizer v Ansett [1988] QCA 298 at [15]. The test is an objective one considering the position of a reasonable man with the knowledge and experience of the applicant.
[2] Limitation of Actions Act 1974, section 30(c).
Here it is submitted by the applicant that the seriousness of his condition could not have been known before the relevant date because, inter alia it was not even known to his treating psychologist before that date. Not only that, but both Mr Acutt and Dr Barry, a psychiatrist who was consulted by the applicant in 2000, deliberately refrained from disclosing details of his condition to the applicant.[3]
[3] see Mr Acutt’s affidavit at paragraph 21 and D Barry’s affidavit at para 4(vii).
In the end I am satisfied that the applicant did not know the seriousness of his condition or its probable duration before the relevant date. I am also satisfied that he lacked the means of knowledge where his advisers themselves did not know and would not have told him for clinical reasons in any event.
It is now necessary to return to whether the fact relied on is decisive. In this context a fact is decisive if a plaintiff unaware of the fact and properly advised would reasonably consider that the prospects of an award of damages did not justify the commencement of proceedings.[4]
[4] Limitation of Actions Act 1974, section 30(b).
In considering this question one must have regard to what the likely scale of an award of damages might have been if brought without knowledge of the relevant fact. Here the applicant believed his condition was improving. He had a patchy work history after leaving the prison but that was not noticeably different from his work history before that employment at the prison. The position at the prison was temporary and followed a lengthy period of unemployment. Even though by the time of the application before me the applicant attributed all his subsequent problems to the employment at the prison and was obviously failing to cope with life that is not necessarily reflective of the applicant’s belief or condition in August 1999. On the basis of the history I have set out above I am satisfied for the purposes of the present application that had an action been successfully brought in August 1999 the applicant’s damages would include a modest amount for pain and suffering and a modest amount for some limited impact on earning capacity over the pre trial period from which a refund would be due to WorkCover. At that date the evidence is that the applicant had largely recovered.
An action of the sort the applicant now brings is notoriously difficult.[5] Plainly the degree of risk associated with an action is directly relevant to the quantum which is necessary to justify bringing it. In a case like this a fact which greatly increases the likely award of damages will often be decisive.[6]
[5] See Midwest Radio Ltd v Arnold (QCA – Appeal 4010/98 – 12 Feb 1999 – unreported); Queensland Corrective Services Commission v Gallagher [1998] QCA 426. Not only are these cases illustrative of the difficulties inherent in such actions but being both cases in which the plaintiff succeeded at first instance but subsequently lost on appeal are illustrative of the determination with which such cases are often contested by defendants.
[6] See for example Taggart v The Workers’ Compensation Board [1983] 2 Qd R 19 at pp 23-24.
Here the applicant plainly has a prima facie cause of action apart from the limitation problem having been exposed by his employer to the matters outlined above without proper training. It is at least arguably foreseeable that such conduct could lead to a stress related psychiatric disorder. There is no evidence here of any prejudice to the respondent by reason of the delay in commencing proceedings.
In all the circumstances I am satisfied that the applicant has satisfied the requirements of s31(2) of the Limitation of Actions Act 1974 and therefor order that the period of limitation for the action be extended so that it expires on 31 August 2000. I further order that by consent the costs of the application be reserved.
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