Williams v State of Queensland

[2003] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v State of Queensland [2003] QSC 142

PARTIES:

ANDREW JAMES WILLIAMS
(applicant)
v
STATE OF QUEENSLAND
(respondent)

FILE NO/S:

SC No 9169 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2003

JUDGE:

Mackenzie J

ORDER:

(1) The time limit within which the plaintiff is able to commence an action for personal injuries, loss and damage resulting from the negligence and/or breach of contract and/or breach of statutory duty of the defendant, its servants or agents, be extended to and include 7 October 2002, pursuant to s 31 of the Limitation of Actions Act 1974.

Costs be costs in the cause.(2)   

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where claim for damages for personal injuries and loss – where allegations of negligence and/or breach of contract and/or breach of statutory duty by respondent employer – where limitation period for bringing an action had expired – where material fact of a decisive character conceded by respondent – whether time limit for commencement of personal injuries action, loss and damage extendable – whether evidence established a right of action apart fro m the defence mounted on expiry of the limitation period

Limitation of Actions Act 1974 (Qld), s 31

Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, cited

COUNSEL:

P B de Plater for the applicant
B L P Hoare for the respondent

SOLICITORS:

Shine Roach McGowan for the applicant
Crown Law for the respondent

1. This is an application for an order that the time limit within which the plaintiff is able to commence an action for personal injuries, loss and damage resulting from the negligence and/or breach of contract and/or breach of statutory duty of the respondent be extended to and include 7 October 2002.

1. The applicant is a police officer who has been retired from the Queensland Police Service (QPS) on the grounds of ill health.  The Statement of Claim refers to the nature of duties performed by the applicant throughout his whole career.  However, the significant period for present purposes seems to date from about March 1990 when he began work in the Special Operations Squad as a liaison officer with undercover operatives and in investigating property and drug offences.  This phase of his career lasted until about March 1992.  While the nature of the work described was said to be demanding, there was no hint of any psychological or psychiatric problems in this period.

1. Then the applicant worked in the Covert and Surveillance Operations Squad doing surveillance work, the nature of which is described in the Statement of Claim.  In the latter part of this assignment he was instructing junior officers in this kind of work as well as doing actual surveillance work himself.  It is alleged that during this period informal complaints were made at various unspecified times about workloads. 

1. The applicant applied for a transfer, giving his reason as being career advancement, and in April 1996 began work in the Fraud Squad with particular focus on proceeds of crime.  In December 1996 he took four weeks leave and during that period was persuaded by his wife to see a doctor who prescribed anti-depressant medication.  When he felt he was unable to resume work at the end of his leave he applied for WorkCover benefits.  The acceptance of his application by WorkCover was challenged by the QPS but its acceptance was confirmed.  He returned to work in the Fraud Squad from May 1997 to August 1998.

1. He was then transferred to the Queensland Crime Commission where he was responsible for major crime and paedophilia investigations.  The Statement of Claim describes the nature of work done in that period.  In January 2000 the plaintiff was travelling through the city in a police vehicle when he saw a person being chased by another person.  He exited the vehicle and apprehended the fleeing person.  However the person produced what turned out to be a replica pistol and held it to the plaintiff’s head and said that he would kill him.  The offender was taken into custody shortly after that.  It is alleged that the plaintiff was contacted by a Human Services Officer who offered what appears to be the opportunity for counselling.  However the applicant declined the offer saying that if he experienced problems he would contact the Human Services Officer.  It is alleged there was no follow-up to that phone call by the respondent and no counselling was provided.

1. In September 2000 the plaintiff consulted his general practitioner and was again prescribed anti-depressant medication.  He had contact with a Human Services Officer on two occasions and was advised about relaxation techniques but given no other counselling or medical treatment.  During his leave from Christmas 2000 until the end of January 2001 he consulted his general practitioner and shortly after his return from holidays was certified as unfit to return to work.  He received psychiatric treatment during that period and was referred by the Queensland Crime Commission to a psychologist whom he attended on six occasions.  On 11 October 2001 the possibility of having to retire from the Police Force was discussed for the first time with his psychiatrist.  He returned to work on 29 January 2002 but, because of circumstances set out in the Statement of Claim, was unable to continue. 

1. The particulars of negligence pleaded are the following:

“(a)failing to take all reasonable precautions to ensure the safety of the plaintiff while he was engaged in his employment duties;

(b)         failing to provide a safe system of work;

(c)permitting the plaintiff to be involved in psychological stressors over and above that reasonably expected in the course of the plaintiff’s employment when it knew or ought to have known that they were likely to result in injury;

(d)failing to provide the plaintiff with any or any adequate support and/or counselling during the course of his employment when it knew or ought to have known that the plaintiff’s employment duties caused him to be subject to emotional stressors and assistance would be necessary.”

1. Breaches of contract and statutory duty are particularised as consisting of the same matters relied on as evidence of negligence. 

1. It was conceded on behalf of the respondent that the court could accept that the discussion after the applicant’s failed return to work in 2002 that he would not be able to return to police work was a material fact of a decisive character.  The issue for determination is whether there is evidence to establish that there is a right of action apart from the defence mounted on expiry of the limitation period.  The applicant relied on the pleaded case.  The principal matters referred to in argument were the following:

(a)That complaints had been made about workloads during the period he was doing surveillance work;

(b)That other surveillance officers he had worked with had been medically retired because of “psychiatric or similar injury” (although it is not stated when these retirements occurred or in what circumstances);

(c)That he was not offered any counselling or similar support by the respondent during the course of his time with the surveillance group;

(d)That his application for WorkCover benefits at the time he was in the Fraud Squad had been challenged unsuccessfully by the QPS;

(e)That he had not been given adequate training when he went to the Fraud Squad and had not been given re-orientation when he resumed work after his first period of sick leave.

1. In this connection, reliance was also placed on the incident where he apprehended the person he believed to be armed.  The complaint is that he was not followed up by Human Services for the purpose of being given counselling.  It is somewhat difficult to see that the situation disclosed in the Statement of Claim, where he declined such assistance on the basis that he would contact the Human Services Officer if he felt it necessary, is a promising basis for breach of duty or negligence.  However, it was pointed out that this incident was within three years of the commencement of the proceedings in any event and no more need be said about it for present purposes. 

1. The evidence of a medical nature suggests that the applicant did suffer major depressive episodes which had arguably at least some genesis in the course of his employment.  There is evidence of other stressors arising from circumstances outside his employment.  There is also evidence suggesting that the applicant may have had a perfectionist personality, giving him an underlying vulnerability.  Counsel for the applicant also focussed upon a statement which seems to have found some favour with one of the treating practitioners that police work was “intrinsically unhealthy”.  The issue of the desirability of formal or informal debriefing processes to assist officers to cope with the “let down” after intensive operations and when there was a transition from covert operations to ordinary policing was raised.  There is also evidence suggesting that factual issues about the nature and extent of the applicant’s duties during his period doing surveillance work were raised at the time of the application for WorkCover benefits.  However, those raise factual issues which cannot and need not be resolved for present purposes. 

1. Counsel for the respondent criticised the pleading on the basis that it was virtually impossible to discern what the applicant’s case with respect to liability was, let alone whether there was any evidence to support the case.  It was submitted that paragraphs (a) and (b) of the Particulars of Negligence quoted above in para [7] merely allege general breaches of duty, which is true. 

1. With respect to paragraph (c) it was submitted that there was an absence of evidence to support the allegation that the employer knew or ought to have known that the exposure to psychological stressors was over and above a level reasonably to be expected in the course of his employment and that it was likely to result in injury.  With regard to (d), it was submitted that the applicant was obliged to show that there was evidence that the employer should have provided support and/or counselling at some material time during his employment, that the support or counselling, if offered, would have been acted upon by the applicant and that counselling, if provided, would probably have been efficacious.  It was submitted that there had been a failure to identify any evidence which could be adduced on behalf of the plaintiff in support of his right of action.  This, it was argued, meant that there was no jurisdictional basis for the court to order an extension of the limitation period (Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, 335).

1. I am not prepared to find, having read the totality of the evidence, that there is no evidence at all on those issues. The respondent argued, in the alternative, that if the discretion to enlarge time had been enlivened it should not be exercised in the applicant’s favour. It was submitted that there was no presumptive right reposing in an applicant who satisfied the formal requirements of s 31(2) to have an extension of time granted (Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866). It was submitted that the discretion should not be exercised for a number of reasons. One was that the applicant’s case was tenuous. It was submitted that apart from the stressors that were not work related, some of the matters of which he complains now may give rise to liability but others may not. The difficulty of disentangling those various factors made it inappropriate to give leave. It was submitted that the material presently available went no further than providing a basis upon which it might be thought that the claimant may have a bare chance of success.

1. It was also submitted that since one of the medical practitioners had related the applicant’s psychiatric illness to events occurring during the whole of the applicant’s police service, the respondent would face substantial difficulties in attempting to identify witnesses who could throw light on matters complained of by the applicant.  Such prejudice would operate unfairly upon the respondent.  No evidence of specific prejudice was led; the general proposition that delay would cause it was relied on.

1. As the matter is pleaded, there is focus on particular phases of the applicant’s career.  It was submitted that if leave were to be granted it should be subject to a condition that no amendment to extend the period of relevant injury beyond that now implicit in the Statement of Claim should be allowed.  As the Statement of Claim stands the applicant’s claim focuses on particular phases of his career where it is believed events occurred which contributed to his present condition.  It is rather difficult to anticipate, in the circumstances, that there would be a significant lengthening of the period especially as, in his consultations with his treating practitioners, he seems not to have suggested that any particular incidents outside the period commencing with surveillance work have been involved in causing his condition.    I therefore am not attracted to the notion that some kind of limitation should be put upon the leave if granted, on the assumption that there is power to do so.

1. If, as appears to be the case, the applicant’s action is principally concerned with the notion that a system of support and/or counselling should have been provided during the period of his career when he believes that his illness began to develop, while doing surveillance duties, and that what followed was a natural consequence of that failure, I am not persuaded that he should not be given the opportunity to extend the limitation period for the purpose of arguing that proposition. 

1. Having said that, it may be that the case is near the borderline.  One of the psychologists summarised the situation in terms which are probably fairly consistent with what appears in the other medical material, that the applicant has apparently followed a pattern of seeming to cope with his work tasks and presenting a “normal” appearance to superiors and colleagues, so that they were surprised when he went on sick leave suddenly.  There is evidence suggesting he consciously chose not to reveal his difficulties.  Without engaging in polemics on the issue, a system involving intrusive inquiries about whether officers are coping in particular sorts of work may not be achievable if individuals wish to maintain their privacy in that regard.  Whatever the theoretical or evidence-based justification for such a regime, the likely tension between the benefits of it, on the one hand, and industrial and privacy considerations on the other, may influence the content of any duty owed.  Availability, if sought, of assistance would appear, on the evidence as it stands, unlikely to have been availed of by the applicant.

1. Nevertheless, having regard to the matters to which reference has been made, I am satisfied that I should grant the extension sought.  The orders are that:

(1) The time limit within which the plaintiff is able to commence an action for personal injuries, loss and damage resulting from the negligence and/or breach of contract and/or breach of statutory duty of the defendant, its servants or agents, be extended to and include 7 October 2002, pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).

(2)       Costs be costs in the cause.