State of New South Wales v Donnelley - [2004] NSWCA 133

No judgment structure available for this case.

CITATION: State of New South Wales v Donnelley [2004] NSWCA 133

HEARING DATE(S): 8 March 2004

JUDGMENT DATE:
6 May 2004

JUDGMENT OF: Handley JA at 1; Giles JA at 5

DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within fouteen days; (2) Appeal allowed; (3) Set aside orders 1 and 2 made in the District Court on 27 February 2002, and in lieu threof order that the notice of motion filed on 6 December 2001 be dismissed with costs; (4) Opponent/respondent pay the costs of the claimant/appeallant of the appeal and have a certificate under the Suitors Fund Act.

CATCHWORDS: Limitation period - s 151D of Workers Compensation Act - whether error in judge's discretion to extend - no error as to statement of discretion or explanation for delay - error in finding no presumptive prejudice - records not necessarily a panacea - widely based claim involving police department's acts and omissions in many respects over long period - prejudice remained of faded memories and evidence lost because forgotten - such that fair trial unlikely - extension should be refused. D

CASES CITED: ASB-Tech Services Pty Ltd (in liquidation) v Doeland [2003] NSWCA 167;
Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475;
Burnell v British Transport Commission [1956] 1 QB 187;
Holt v Wynter (2000) 49 NSWLR 128;
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207;
McLean v Sydney Water Corportion [2001] NSWCA 122;
Tomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347.

PARTIES :
State of New South Wales - Appellant
Jason Donnelley - Respondent

FILE NUMBER(S): CA 40221/03

COUNSEL: P Menzies QC & D Mallon - Appellant
K Andrews - Respondent

SOLICITORS: I V Knight, Crown Solicitors Office - Appellant
W H Parsons & Associates - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13835/01

LOWER COURT
JUDICIAL OFFICER : Hock DCJ

CA 40221/03
DC 13835/01

HANDLEY JA
GILES JA
Thursday 6 May 2004

STATE OF NEW SOUTH WALES v DONNELLEY

Judgment

1 HANDLEY JA: In this matter I have had the benefit of reading the reasons for judgment of Giles JA in draft form. I agree with his Honour’s conclusion that the State would be prejudiced if it had to contest the whole of the plaintiff’s claim on the merits. That claim covers the period from April 1989 to 16 August 2001 and the plaintiff was time barred for the period prior to 16 August 1998. I therefore agree with the orders he has proposed.

2 The State did not attempt to test the plaintiff’s evidence that he had received legal advice from difference firms of solicitors in 1989 and 1997 that he had no common law claim against the Police Department. Nor did the State attempt to test the plaintiff’s claim to legal professional privilege in respect of the advice he received from those firms.

3 The plaintiff’s reliance on the legal advice he received in 1989 and 1997, as part of his explanation for his delay in commencing proceedings, would have operated at common law to waive his legal professional privilege in respect of that advice. See Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347, 358-9; Burnell v British Transport Commission [1956] 1 QB 187 CA; Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475. It is not necessary to consider whether the plaintiff’s reliance on that advice operated, under the Evidence Act 1995, to waive his client privilege in respect of that advice. However if client privilege is not waived in such a case I am inclined to think, as at presently advised, that a court should not act on anything less than full disclosure by an applicant seeking the extension of a limitation period who has relied on legal advice to explain the delay.

4 The orders proposed by Giles JA should be made.

5 GILES JA: The opponent was a serving police officer from about 1988. On 16 August 2001 he commenced proceedings against the claimant alleging negligence as his employer and claiming damages. By a notice of motion filed on 6 December 2001 he applied for an extension of time within which to bring the proceedings pursuant to s 151D of the Workers Compensation Act 1987 (“the Act”). On 27 February 2003 he was granted retroactive leave to bring the proceedings. This was an application for leave to appeal against the grant of leave, heard on full submissions so that if leave were given the appeal could then be decided.

The opponent’s claim

6 In his statement of claim the opponent first alleged that he was a serving police officer “[a]t all material times” (para 2) and was owed by the claimant “a duty of care in relation to the risk of the Plaintiff suffering injury during the course of his duties with the New South Wales Police Service” (para 3).

7 He then alleged -

“4. On or about 24 April 1989 the Plaintiff during the course of his duties received a gunshot wound. The Plaintiff also witnessed another police officer receive gunshot wounds and the Plaintiff escorted the other police officer to hospital.

5. In or about May or June of 1989 the Plaintiff returned to duties with the Defendant requiring his exposure to weapons, ballistics, crime scenes, post mortems, corpses and general duties.

6. At all material times between about 24 April 1989 and about 12 July 2000 the New South Wales Police Service was responsible for the Plaintiff’s safety and rehabilitation during the course of his duties with the New South Wales Police Service.

7. During the course of the Plaintiff’s duties the Plaintiff was assaulted by other Police Officers in the New South Wales Police Service. The Plaintiff reported the aforementioned assaults to his immediate supervisor. At all material times the New South Wales Police Service were responsible for the conduct, control and/or management of the other aforementioned Police Officers and the immediate supervisor.

8 Particulars were then given of negligence, of injuries, of disabilities, of out of pocket expenses and of economic loss.

9 It was finally alleged that “[t]he abovementioned injury, loss and damage was caused by the Defendant’s negligence” (para 9). The negligence was not again particularised, and must have been that earlier particularised.

10 The particulars of negligence were -

“1. Failure to provide the Plaintiff with safety/defence equipment.

2. Failure to devise and institute, supervise and maintain a safe system of work.

3. Failure to adequately train the Plaintiff.

4. Failure to protect the Plaintiff.

5. Failure to properly counsel the Plaintiff.

6. Failure to properly monitor and rehabilitate the Plaintiff.

7. Failure to heed complaints of assault by the Plaintiff.

8. Failure to treat the Plaintiff’s psychological injury by referring him to appropriate medical experts.

9. Failure to take steps to ensure that the Plaintiff did not suffer further psychological injury.

11 The particulars of injuries were -

“1. Adjustment disorder.

2. Depression.

3. Psychiatric illness.

4. Shock.

5. Trauma.”

12 The particulars of disabilities were lengthy but were generally of psychological impairment. Some particulars, of which “[r]educed ability to perform domestic activities” is the best illustration, could but did not necessarily extend to physical disability.

13 The particulars of out-of-pocket expenses were “to be provided in due course”. The particulars of economic loss were -

“Due to the injuries and disabilities suffered by the Plaintiff he was absent from his service with the New South Wales Police Service for extended periods of time and thus suffered economic loss.

Full particulars of the Plaintiff’s claim for economic loss will be provided in due course.”

14 The pleading was in broad terms, and was far from ideal. The particularised negligence included negligence in relation to the shooting on 24 April 1989, but the particularised injuries were psychological rather than physical. It may be that the disabilities were probably to be understood accordingly: as will be seen, however, the opponent complains of continuing pain from the gunshot wound. The particularised negligence clearly enough showed that the opponent’s case was not one of psychological injury consequent upon the shooting without more, but of psychological injury caused or contributed to by negligence in relation to the claimant’s dealings with the opponent thereafter. The latter negligence was in relation to counselling, monitoring and rehabilitation, paying heed to complaints of assault (the evidence in the application suggested that the assaults were not free-standing, but connected with the shooting), and providing medical assistance. It may have gone further, through the generalised failure to take steps to ensure that no further psychological injury was suffered and failure to comply with directions or guidelines. Whatever was within the particulars, however, was alleged against the opponent over the period from 24 April 1989 to 12 July 2000, and the causation of or contributions to the opponent’s injuries and disabilities was left as a complex of negligence over the period.

15 By s 151D (2) of the Act -

“(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”

16 The opponent received his physical injury on 24 April 1989. If the psychological injury to which his claim was apparently principally, although perhaps not wholly, directed was not received in consequence of the shooting without more, when it was received and from what acts or combination of acts of negligence was left indeterminate.

Evidence in the application

17 The opponent was shot whilst on duty on 24 April 1989. The officer whom he accompanied was also shot and died from his wounds. The opponent assisted in getting his fellow officer to hospital. The opponent was himself in hospital for about a week and off duty for about another four weeks.

18 The opponent was seen at home on 28 April 1989 by Ms Cate Wikner, a police psychologist, who saw him again on 12 and 24 May 1989. She recorded that the opponent reported, amongst other things, “a disturbed sleep pattern, powerful feelings of vulnerability”; for a time chest pains corresponding to the area of injury to his fellow officer; and irritability and being “downcast in mood”.

19 When he returned to duty the opponent was put on restricted duty in the Weapons Training Unit. Ms Wikner saw him again some time in June 1989, and noted that he found this “rather unsatisfactory”. In her report she said that there was “evidence of a post-traumatic stress reaction”, but that the opponent “has a good chance of returning to full normal functioning in a reasonable period of time”.

20 On various dates in May and June 1989 the opponent was also seen by Dr Sue Jennings, a police doctor. According to the opponent, Dr Jennings told him that he had to go back to work or he would not have a job, and that “the best rehabilitation was to go to the weapons training unit … “. Dr Jennings recorded in a medical certificate dated 11 July 1989 that the opponent was suffering from “effects of gunshot wound & post traumatic stress”, but that he was fit for “alternate duties” and that the date of return to pre-injury duties was “uncertain at this stage”.

21 The opponent had to undertake a second weapons training course. He said that he was physically assaulted by some of those at the course, naming four officers, and that when he reported this to the officer in charge of the weapons training unit he was told “I’m going to have a chat to these guys but in my opinion they are trying to toughen you up”. He also said that the named officers and others in the class “starting calling me nicknames and saying things to me” so that he “became embarrassed and concerned about what had occurred to me”; he said, “I continued to suffer nightmares and became apprehensive. My self esteem suffered and I became moody”.

22 On 9 August 1989 the opponent completed an application for compensation under the Victims Compensation Act 1987. He noted in the application the continuing disabilities of “[p]ost-traumatic anxiety state; sleepless nights; emotional problems”.

23 In connection with the application the opponent consulted Baker & Edmunds, solicitors. They arranged for an examination by Dr Yvonne Skinner, a psychiatrist. In a report dated 15 December 1989 Dr Skinner expressed the opinion -

“As a direct result of this life-threatening incident he is suffering from a post-traumatic stress disorder characterised by repeated re-living of the traumatic events, sleep disturbance with nightmares, severe anxiety and depression, and fears related to the incident. In addition his relationship with his girl friend and his career have been affected. The fact that Constable McQueen died has further complicated his recovery and has exacerbated his anxiety and fears of death, to such an extent that he feels unsafe on walking in the street.

He feels angry about his treatment by the police department and in fact he has received little counselling and was apparently returned to duties without adequate explanation. It is important for his recovery that he should have been taken off street duties and transferred to an area where there is less direct risk of confrontation, and that the time interval off duty should not be too long. However, it seems that he has not been adequately instructed in techniques for dealing with anxiety and he has not received sufficient supportive counselling from senior police.

He requires further treatment from an experienced clinical psychologist or a psychiatrist. This would involve counselling and also specific instruction in techniques for dealing with anxiety symptoms and panic feelings with a particular emphasis on avoiding the severe panic symptoms with chest pain. About 20-30 consultations would be required over a period of 6-8 months with 6 monthly follow-up visits over 4-6 years.

His prognosis is good. He is intelligent, has considerable personality resources and he is motivated to continue in the police force. I would expect a gradual improvement and resolution of symptoms over the next 3-4 years with exacerbations when he is reminded of the incident by going to Court etc. However, he has suffered a highly traumatic experience and he will never completely resolve issues arsing from the incident. He will continue to experience some anxiety and fears in relation to similar situations and may suffer occasional recurrences of nightmares and other symptoms for the rest of his life.”

24 According to the opponent, Dr Jennings and Mr David Mutton, another police psychologist, told him that they did not think he needed to see a psychiatrist and that his symptoms were “perfectly normal”. The opponent did not receive the further treatment suggested by Dr Skinner. In a judgment given on 20 December 1991 in the course of the victim compensation proceedings Sinclair DCJ recorded that the opponent said that he had been unable to afford it. This does not sit comfortably with being told that he did not need to see a psychiatrist, and in his oral evidence the opponent agreed that Dr Jennings referred him to Dr Spragg but said that he did not remember Dr Spragg “discussing the post traumatic stress disorder syndrome with me”.

25 At the time he consulted Baker & Edmunds, according to the opponent -

“A. I did speak to Thomas Edmunds in relation to my rights and he said didn’t have a claim.

26 The opponent had to attend the committal in 1989 and the trial in 1990 in relation to the shooting. He said he “found this extremely traumatic and received no counselling in relation to those hearings”.

27 The opponent gave the evidence -

“21. In about January 1990 Bob Weights, the personnel officer, said words to the effect to me:

‘I’ve had enough of this rehabilitation shit you are going back to GD’s and you’re going on Monday.’

I replied:

‘I’m trying to do my best to overcome this.’

Bob Weights replied:

‘Who do you think you are you only got shot.’

22. Approximately 2 weeks later I started at general duties at Central Station however shortly thereafter my nightmares started becoming more vivid and I found that I was starting to drinking [sic] alcohol a lot more. I was fearful and found operational duties difficult.

23. By March 1990 I was still performing general duties at Central Police Station and I was feeling a great deal of stress and I subsequently took sick leave due to my stress.

24. By September 1990 I started to feel like I didn’t really want to live but then realised that thinking about those types of issues would only hurt other people.

25. I had been given the opportunity of seeing the police psychologist, David Mutton, however he did not provide any assistance to me.

28 The opponent continued to do the duties assigned to him, but said that a number of investigations, such as two he identified into murders, were extremely stressful and he found himself “feeling more upset, becoming more short tempered and my dreams were continuing”.

29 In connection with the on-going victim compensation claim, in November 1991 the opponent was referred to Dr Wendy-Louise Walker, a clinical and forensic psychologist. In his judgment of 20 December 1991 Sinclair DCJ said, first setting out an extract from her opinion -

“’Jason suffered a traumatic event of severity quite out of the ordinary. At the time he was in the earliest years of adulthood and had been a probationary constable for only 9 months. He remains locked into a severe post-traumatic stress reaction and is in need of effective psychologist intervention … his bitterness and his disillusionment with his career are of such magnitude that it is almost certain he will have to leave the police department. His prognosis remains quite guarded and it will decline the longer he remains locked in post-traumatic stress reaction.’

She also says that even if appropriate therapy is successful, much of the personality change will remain and much of the vulnerability.

It is regrettable that the appellant did not have the follow-up psychiatric or psychological counselling that was recommended several years ago. The current schedule for the treatment is $110.00 a session and is covered by Medicare. However, there is no reason to have any serious doubt that if he undertakes such counselling in the near future that his emotional and personality problems should improve.”

30 The opponent’s evidence was that he was not aware until 1997 that he had post-traumatic stress disorder. He said that he thought his victim compensation claim was for being shot, that he did not remember Ms Wikner talking of post-traumatic stress reaction (he remembered her referring to “critical incident symptoms”), and that he did not remember reading the report of Dr Skinner or the judgment of Sinclair DCJ until relatively recent times. This was then qualified in that he agreed that he was given a copy of the judgment and at one point said that he remembered reading it apparently meaning at the time; at another point he said he remembered the judgment, “but I can’t remember every single aspect of it”.

31 On 3 November 1997 the opponent was referred by Mr Mutton to Dr Murray Wright, a psychiatrist, “because of increasing difficulties in dealing with unresolved symptoms to a shooting incident which occurred in 1989”. According to the opponent, seeing a policeman shot on a television show had brought chest pain and palpitations. Dr Wright made a diagnosis of post-traumatic stress disorder. He provided treatment which he considered stabilised the opponent’s condition, but when he saw the opponent on 30 May 2000 he diagnosed persistent post-traumatic stress disorder and co-existent major depression. He continued to treat the opponent, and in a report dated 9 March 2001 said -

“Mr Donnelley remains unfit for work and my prognosis for the future is guarded. He has now had PTSD for almost 12 years, and despite a number of attempts to remain at work as a police officer he has been unable to work for most of the last 12 months. In my opinion he will continue to experience some symptoms of PTSD for the foreseeable future, but I would be hopeful that the present treatment will reduce the overall impact of these persisting symptoms. I also believe that Mr Donnolley will remain vulnerable to exacerbations of this condition when exposed to certain kinds of stress, and this is likely to preclude him from any operational policing role. It remains to be seen whether he will recover sufficiently to work in any capacity as a police officer.”

32 The opponent’s consultations with Dr Wright included discussion of taking action against the police service for negligence in failing to provide adequate rehabilitation. He said he was not sure which of them raised the matter. Whichever it was, the opponent agreed that at the end of 1997 he was “thinking about my options”, meaning claiming against the police service. He sought legal advice from Walter Madden Jenkins, solicitors. According to the opponent, they “said [he] didn’t have an action”. This was amplified -

33 On 17 July 2000 the opponent ”had a breakdown at home”. This was not greatly explained, but was not challenged. He was off duty from that date. Various medical certificates recorded post-traumatic stress disorder and sometimes “chronic pain gunshot wound”, “abdominal and back pain” or similar. An internal police email dated 16 February 2001 included -

“Jason’s symptoms intensified to a critical point in July 2000 he was monitored by Dave Mutton, Chief Psychologist and Dr Murray Wright, Psychiatrist. Dr Wright diagnosed Jason’s condition as Post Traumatic Stress disorder with depression/compounding depression as a result of experiences over a period of years whilst performing the duties as a Police Officer.”

34 A report of Dr Philip Kemp, a police medical officer, dated 13 March 2001 included -

“Jason says that his treating psychiatrist, Dr M Wright, has not advised him one way or the other to leave the police service.

In my opinion Jason’s health would be adversely affected by a return to full duties, by a return to restricted duties and likely by a return to any duties within the NSW Police Service. I believe that while his oath remains he is more vulnerable to decompensation. I counselled him along these lines and he will be discussing this with his treating psychiatrist.

I believe that it would be reasonable to start exploring options of occupational retraining not as a police officer. This would be better initially started behind the scenes until he has had the opportunity to discuss his future with his treating psychiatrist.

Should his treating psychiatrist feel that Jason could return to some duties within the police service then I would concur that this is an option that could be tried.”

35 Dr Kemp recorded in an e-mail dated 16 March 2001 that he “cannot ever see Jason becoming fit for full duties”, and -

“With Jason, should he apply for a medical discharge, then I would support this. Should he not, then I believe at [sic: that] the most he would become fit for would be a long term restricted. This being the case then it would be up to the command, in consultation with the rehab officer, to determine that there is no suitable position anywhere.”

36 In late 2000 and early 2001 the opponent consulted Watson Stafford, solicitors, about a claim against the police service. He said he had “a couple of meetings with them”, but did not engage them.

37 The opponent instructed his present solicitors in early April 2001. They referred him to Dr Robert Lewin, a psychiatrist, who reported on 2 August 2001. His report records, amongst other things, “ongoing symptoms of pain at the site of the gunshot wound”, which Dr Lewis thought were probably “part of his emotional reaction to the episode”. The report no doubt indicates the case to be presented on the opponent’s behalf, and a fairly lengthy extract can usefully be set out -

“Mr Donnolley [sic, and elsewhere] reports experiencing a range of anxiety symptoms throughout the entire intervening period. He spoke of an intense preoccupation of his own security, social withdrawal, disturbing dreams with violent themes and themes of death and vulnerability as well as other symptoms of anxiety. These included intense response to fear and a startle response. Dr Donnolley told me that many of his current experiences remind him of this episode.

At various times Mr Donnolley has also experienced quite marked depressive symptoms. It appears that in 1990 he had an episode of Major Depression which occurred as a complicating feature of his syndrome of post traumatic anxiety. He reported a range of depressive symptoms including an intense suicidal preoccupation at that stage.

By the time I saw Mr Donnolley, there had been a significant response to treatment. He had noted some reduction in the intensity of his post traumatic symptoms of anxiety and it appeared that his depressive symptoms had resolved. He also told me about a long history of abuse of alcohol beginning in approximately 1990. Over the last eight months, he has brought this condition of alcohol abuse largely into remission. I found no history of abuse of analgesic medication or anxiolytic medication or any other substance.

At the present time Mr Donnolley exhibits clinical features of a Post Traumatic Stress Disorder. His condition is currently of moderate severity and I note that he has been partially treated. His current progress is complicated by intense feelings of anger directed towards his former employer. He spoke of being betrayed, let down and ignored by the former employer. Mr Donnolley explained that he had felt that the employer had treated him with disdain when he was returned to work at the Police Shooting Range. Mr Donnolley felt that this was disdainful and uncaring. He suggested that it may have made him feel worse. He also told me that he believed that aspects of his more recent work within the Witness Protection Area and in terms of the forensic work that he had done had a similar aggravating effect upon his condition. The angry feelings towards the employer were intense feelings which Mr Donnolley emphasised repeatedly during the examination. It is likely that these feelings are complicating the clinical progress to a significant degree. It is also possible that the decision to pursue a legal solution to his problems has focussed his attention upon these angry feelings.

The current psychiatric diagnosis is Post Traumatic Stress Disorder. At various times, this condition has been complicated by a concurrent depressive reaction (a major depressive episode) and by the abuse of alcohol. The abuse of alcohol and the depressive reaction appear to be in remission at the present time.

You asked me to express an opinion regarding the causation of Mr Donnolley’s condition. His condition was precipitated by a life-threatening incident at the workplace. Mr Donnolley received a gunshot wound and his “buddy”, Alan McQueen, was also injured at the same time. Within days, Mr McQueen died as a consequence of his injuries. Mr Donnolley suffered intense distress during the initial period and he reports that his symptoms have not resolved at any stage during the intervening twelve years. He reports a recent exacerbation of symptoms of anxiety (particularly nightmares and flashbacks) which is unexplained. He did not report any history of current personal difficulties which might explain his change in his clinical situation. It is possible that these symptoms are currently being manifested as part of his emotional response to the litigation.

Mr Donnolley believes that his condition was worsened by aspects of the response of the employer to his predicament. He told me that he requested more expert treatment from a psychologist or psychiatrist within months of the injury.

If one can only speculate upon what might have happened, it is reasonable to assert that if he had been given more intense and expert treatment at that stage, his condition might have come into remission more quickly.

I note that Mr Donnolley reports ongoing symptoms over a period of twelve years. This indicates that his condition has now become entrenched. However, I note that he reported a recent response to treatment with Ms Giarrhatano. I also note that Mr Donnolley has been able to maintain a programme of full-time work throughout most of the intervening period. There are both positive and negative prognostic indicators.”

Error as to the discretion

38 Section 151D(2) of the Act confers a broad discretion. It must be asked whether it is fair and just to extend the time for commencement of proceedings, having regard to the rationales for the limitation period: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207.

39 The judge said -

Salido v Nominal Defendant

Brisbane South Regional Health Authority v Taylor

40 The claimant submitted that the judge misdirected herself in saying that leave would not be granted where there had been significantly prejudicial delay, because according to Itex Graphix Pty Ltd v Elliott it was necessary to ask whether in the circumstances of the particular case it was fair and just that leave should be granted. It is plain, however, that the judge did not confine herself to prejudice from delay, and she expressed her conclusion in para 30 that the opponent “has established that it is fair and just that he be granted leave that he commence proceedings against the respondent”. Reading the reasons as a whole, I do not think that the judge erred in the approach she took. In any event, the judge did not decide that leave should not be granted because there had been significantly prejudicial delay.

Error as to explanation for delay

41 In the course of setting out the facts the judge said -

“13. Dr Wright had some success in stabilizing the applicant’s condition through the treatment he instituted. However in 2000 the applicant’s symptoms increased. Dr Wright’s diagnosis in May that year was persistent PTSD and co-existent major depression. He recommended that the applicant go on sick leave which he did. On 17 July 2000 the applicant had a breakdown at home. In September 2000 Dr Wright noted that the applicant’s PTSD symptoms were more apparent, possibly due to the fact that he had stopped his excessive use of alcohol.

14. The applicant has not returned to work since July 2000 and he remains under the care of Dr Wright. He has come to the realisation that he will be unable to continue to serve as a police officer. Dr Kemp, the police medical officer most recently involved in monitoring the applicant, was of the opinion in March 2001 that his health would be adversely affected by any return to duties. He recommended consideration be given to a medical discharge for the applicant, which he would support.

15. The applicant instructed his present solicitors on or about 3 April 2001 and the Statement of Claim was filed on 16 August 2001. It seems that the cause of the applicant seeking further legal advice about his rights was the breakdown he suffered and his final acceptance that he would be unable to pursue his chosen career.”

42 In coming to her decision the judge said -

“25. The respondent argued that the applicant had not given any satisfactory explanation for the delay in bringing this claim. In particular the respondent pointed to the fact that Dr Skinner had diagnosed the applicant as suffering from PTSD in 1989 and he did nothing about it. The respondent also argued that the applicant had been fully informed of his right to take action against the respondent in 1989 and 1991 and again in 1997 when he again sought legal advice.

26. The applicant’s explanation for his failure to take action against his employer at an earlier time was that it was not until after his breakdown in July 2000 that he became aware that his condition had become so serious that it was not likely to resolve. Up until that time had had continued in his chosen career, optimistic that he would eventually fully recover. The material before me confirms that the applicant’s symptoms reached a critical point in July 2000.

28. Finally I accept the applicant’s evidence that he took no action earlier because he was told in 1989 by two different firms of solicitors that he had no cause of action against the respondent. The respondent argued that the applicant may have an action against his previous solicitors but the authorities make clear that that should be given little if any weight. Nominal Defendant v Manning [2000] NSWCA 80.

Itek Graphix Pty Ltd v Elliott

43 The claimant submitted that the judge erred in finding that the opponent’s symptoms increased in 2000, that only after his breakdown did he become aware that his condition had become so serious that it was not likely to resolve, that he then came to the realisation that he would be unable to continue to serve as a police officer, and that he sought further legal advice about his rights because of his breakdown and his final acceptance that he would be unable to pursue his chosen career. The claimant further submitted that the judge erred in finding that it was only when the opponent consulted Dr Wright that he was aware that he was suffering post-traumatic stress, and that she should have found that the opponent had failed satisfactorily to explain why proceedings had not been brought within the statutory period and that he had in fact made an informed decision not to bring proceedings.

44 It was well open to the judge to find that the opponent’s symptoms increased in 2000. The breakdown in July 2000, the referral to Dr Wright and the certified absence from duties were eloquent of that circumstance, and it was recognised in, amongst other places, the email of 16 February 2001. The claimant relied on evidence from the opponent that his symptoms immediately after the shooting in 1989 continued in peaks and troughs thereafter and at earlier times were less severe than when his application was heard, but that is consistent with a worsening in July 2000. It was also well open to the judge to find that it was only after his breakdown that the opponent realised the seriousness of his condition and faced inability to continue to serve as a police officer, as Dr Kemp effectively concluded at the time. That there was thereby triggered seeking further legal advice was also a finding open to the judge, as a reasonable inference from recognition that the opponent’s career in the police force was at an end. There is nothing in these submissions.

45 These findings, as an explanation for the opponent commencing his proceedings when he did, bear upon an explanation for the opponent not commencing proceedings at an earlier time. The opponent undoubtedly knew from the beginning that he was psychologically affected, and came to question whether he had a claim against the police service. He first turned to the possibility of a claim in 1989-90, although at that time focussing on training and protection in relation to the shooting rather than subsequent counselling etcetera. The judge’s finding in para 27 that only in 1997 did he know he was suffering post-traumatic stress might be thought generous. But it was not the critical finding: that was the acceptance that he was told by his solicitors that he had no claim.

46 The judge made a slip in saying that the opponent was told he had no claim “in 1989 by two different firms of solicitors”. He was told in 1989 and then in 1997. The slip was obvious, and the claimant made no point of it. Being told that he had no claim was not an informed decision not to bring an action of the kind thought fatal to an extension in Itek Graphix Pty Ltd v Elliott. The judge’s acceptance of the opponent’s evidence in this respect can not be gainsaid on appeal.

47 In that connection, the claimant submitted that the judge failed to pay regard to the facts that neither the opponent nor his solicitor gave evidence in chief concerning previous legal advice and that prior to the hearing the opponent claimed client legal privilege with respect to communications with Walter Madden Jenkins and Watson Stafford. It was submitted that this reflected adversely on the bona fides of the application, and demonstrated unwillingness and inability to give a full and satisfactory explanation of the delay in commencing proceedings.

48 The opponent said, in effect, that when his solicitors told him he did not have a claim he did not think he had to include that in his affidavit. He was asked whether he knew that he had to explain why he had not taken action earlier, and replied, “No, but I can explain it to her Honour”. He was not pressed further. He was asked about claiming client legal privilege, but had no understanding of it. His present solicitor was asked about the same matters. She said that she thought it irrelevant that the opponent had sought legal advice from previous solicitors, because her instructions were “that it was for him not to pursue the claim”. This unclear phrase, if correctly transcribed, was not explored, and in the light of the opponent’s evidence the instructions must have been that he had been told that he did not have a claim to pursue. The solicitor denied that the claim to client legal privilege was intended to hide the fact that the opponent had received legal advice in the past in relation to commencing proceedings, and pointed out that it was obvious from the report of Dr Skinner, which had been disclosed, that the opponent had consulted Baker & Edmunds.

49 The assertion of client legal privilege had been made by letter. The claimant had not taken steps to test it by applying for discovery of documents or by subpoena. It was obvious to the claimant that the opponent had retained solicitors at earlier times, both Baker & Edmunds and Walter Madden Jenkins. Perhaps the opponent should himself have gone into his earlier legal advice as part of explaining why he did not commence proceedings earlier (see for example ASB-Tech Services Pty Ltd (in liquidation) v Doeland [2003] NSWCA 167 at [30]), but in the end the fact of the advice was brought out. There was no question of deceptive concealment, and the claimant’s stance was rather hollow when it had not challenged what was probably an unmaintainable assertion of client legal privilege and had not sought to go behind the opponent’s evidence that he was advised that he had no claim. The judge made no specific reference to these matters, but there was no need to do so and there is no reason to think that she failed to take them into account in coming to her conclusions in the paragraphs earlier set out and her ultimate conclusion.

50 I do not think error has been shown in the judge concluding, in assessing what was fair and just, that the opponent’s failure to bring his proceedings until the time he did was satisfactorily explained.

Error as to prejudice from delay

51 The judge said -

“19. The respondent adduced no evidence of any actual prejudice although it can of course rely on the presumption of prejudice caused by the delay. However the respondent has been aware of the applicant’s injury since it occurred and has been monitoring him since that time. The respondent is bound by the Workers Compensation Act (s 6) and is require to retain all the plaintiff’s personnel records for a minimum of seven years after the plaintiff left its employ. Therefore such records should still be in existence.

State Records Act

State Archives Act

52 The judge reasoned that there was no presumptive prejudice because the claimant had all the opponent’s personnel records and other records “pertaining to” the opponent. With respect, this was inadequate reasoning. Records may or may not provide the wherewithal to defend a claim in a fair trial. It depends on the nature of the claim, on whether the records will sufficiently cover the factual issues likely to arise, and on whether the records will sufficiently alleviate the prejudice of faded memories and evidence lost because forgotten. The burden of establishing fairness and justice being on the plaintiff, if doubt remains it will weigh against a grant of leave.

53 I have earlier referred to the indeterminate nature of the opponent’s claim. It would not be realistic to exclude from consideration all contributions to the opponent’s psychological state in July 2000: from the shooting itself, from his placement in the weapons training unit, from his deployment in distressing investigations, from unsympathetic treatment and harassment at work, and from lack of necessary counselling, to the extent to which these are said to have contributed. At every step the acts and omissions of other police officers are likely to be called in question, not only those alleged to have assaulted him or denigrated him but also those responsible for decisions as to his duties over the period from April 1989 and in particular in the first half of the 1990’s. This will have to be explored against the background of the then perceptions by the responsible personnel in the police service of the opponent’s psychological condition and what might assist it or harm it, and with regard to their reasons for the courses they took or permitted to be taken. The claimant may be found negligent in some respects but not others, and questions of contribution to his psychological state may arise.

54 There was no evidence of the availability or otherwise of the persons within the police service whose acts, omissions and perceptions will be material. They will be numerous: the way the opponent has framed his case makes it so. Not all will be available, and for many of them the events on which the opponent relies will be remote in memory. I am not satisfied that the records contemplated by the judge would make up for those who are not available or enable those who are available to place themselves back in 1989 and the first half of the 1990’s. At this remove, it will not be easy for the claimant to muster evidence separating out the contributions to the opponent’s present psychological state. Differing from the judge, I consider that there was prejudice to the claimant in having to meet the opponent’s claim.

Re-exercise of discretion

55 The judge’s discretion miscarried, and it is necessary to re-exercise it. The opponent is sadly distressed, and his prognosis is uncertain. On the evidence, he was ill-advised by earlier solicitors. On the other hand, the rationales for limitation periods stand against him, as does the imperative that the claimant should be able to defend itself in a fair trial. The prejudice to the claimant is such that, with due recognition that a fair trial is not a perfect or ideal trial (see Holt v Wynter (2000) 49 NSWLR 128 at [79] – [81]; McLean v Sydney Water Corporation [2001] NSWCA 122 at [27]), I do not think it could in 2001 meet in a fair trial the opponent’s widely-based case. Fairness and justice must endeavour to balance competing considerations. I do not think the opponent has shown that it would be fair and just to extend the time within which to bring the proceedings.

Orders

1. Grant leave to appeal and direct that the notice of appeal be filed within fourteen days.

2. Appeal allowed.

3. Set aside orders 1 and 2 made in the District Court on 27 February 2002, and in lieu thereof order that the notice of motion filed on 6 December 2001 be dismissed with costs.

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Last Modified: 05/07/2004

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Citations

State of New South Wales v Donnelley [2004] NSWCA 133

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CITATION:	State of New South Wales v Donnelley [2004] NSWCA 133
HEARING DATE(S):	8 March 2004
JUDGMENT DATE:	6 May 2004
JUDGMENT OF:	Handley JA at 1; Giles JA at 5
DECISION:	(1) Grant leave to appeal and direct that the notice of appeal be filed within fouteen days; (2) Appeal allowed; (3) Set aside orders 1 and 2 made in the District Court on 27 February 2002, and in lieu threof order that the notice of motion filed on 6 December 2001 be dismissed with costs; (4) Opponent/respondent pay the costs of the claimant/appeallant of the appeal and have a certificate under the Suitors Fund Act.
CATCHWORDS:	Limitation period - s 151D of Workers Compensation Act - whether error in judge's discretion to extend - no error as to statement of discretion or explanation for delay - error in finding no presumptive prejudice - records not necessarily a panacea - widely based claim involving police department's acts and omissions in many respects over long period - prejudice remained of faded memories and evidence lost because forgotten - such that fair trial unlikely - extension should be refused. D
CASES CITED:	ASB-Tech Services Pty Ltd (in liquidation) v Doeland [2003] NSWCA 167; Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475; Burnell v British Transport Commission [1956] 1 QB 187; Holt v Wynter (2000) 49 NSWLR 128; Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; McLean v Sydney Water Corportion [2001] NSWCA 122; Tomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347.
PARTIES :	State of New South Wales - Appellant Jason Donnelley - Respondent
FILE NUMBER(S):	CA 40221/03
COUNSEL:	P Menzies QC & D Mallon - Appellant K Andrews - Respondent
SOLICITORS:	I V Knight, Crown Solicitors Office - Appellant W H Parsons & Associates - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13835/01
LOWER COURT JUDICIAL OFFICER :	Hock DCJ