Wilson v State Rail Authority of New South Wales & Anor

[2007] NSWSC 1280

CITATION:	Wilson v State Rail Authority of New South Wales & Anor [2007] NSWSC 1280
HEARING DATE(S):	16/08/2007; 08/11/2007
JUDGMENT DATE :	13 November 2007
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass
DECISION:	I have come to the decision that it would be just and reasonable to grant an extension of time and that the Court should do so. The parties are to have liberty to apply. Costs should presently be reserved.
CATCHWORDS:	Extension of time - sexual assaults by fellow employee - threshold requirements and requirements of s. 60G
LEGISLATION CITED:	Limitation Act 1969 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
PARTIES:	Michael Allen Wilson (Pl) State Rail Authority of New South Wales (1st Def) Robert Arthur Reardon (2nd Def)
FILE NUMBER(S):	SC 12884/06
COUNSEL:	Mr S. Littlemore QC / Mr M. Snell (Pl) Mr P. Garling SC / Ms K. Morgan (1st Def) (16/8/07) Mr P. Garling SC / Mr R. Gambi (1st Def) (8/11/07)
SOLICITORS:	Carroll & O'Dea (Pl) Astridge & Murray (1st Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

13 NOVEMBER 2007

2006/12884 Michael Alan Wilson v State Rail Authority of New South Wales & Anor

JUDGMENT

1 HIS HONOUR: These proceedings were commenced by summons filed on 15 June 2006 (earlier proceedings were discontinued). There are two defendants. The first defendant is the former employer of the plaintiff. The second defendant is a former fellow employee. The relief sought is an extension of the relevant limitation period pursuant to the Limitation Act 1969 (NSW) (“the Act”). The provisions relied on are ss. 60G and 60I.

2 The plaintiff was employed by the first defendant during a period from about 4 August 1981 to 13 January 1983 (when he procured his own dismissal). He was then 15 – 16 years of age. His father was also then an employee.

3 It is the evidence of the plaintiff that during his period of employment he was subjected to sexual assaults by the second defendant (who has been described as a serial offender). The assaults involved groping, oral sex, masturbation and anal rape. They were committed both at the workplace and elsewhere (including in the second defendant’s vehicle and at his home).

4 It is also contended that the second defendant molested other employees. There is evidence from the plaintiff that, inter alia, he saw the groping of other employees during the period of his employment.

5 A proposed statement of claim is in evidence. It is proposed to sue the first defendant on a cause of action founded in negligence. It is proposed to sue the second defendant in respect of the assaults. The plaintiff’s claim is for psychiatric injury resulting from the assaults.

6 The hearing commenced on 16 August 2007. On that day, the first defendant appeared to defend the application. The second defendant did not appear.

7 The hearing proceeded to a part-heard stage only on that day (the evidence then available to the plaintiff was led). It was then adjourned on the application of the plaintiff to enable the obtaining of evidence on the question of the viability of his proposed claim against the first defendant.

8 The Summons was specially fixed for further hearing, to take place on 8 November 2007. On that day, arrangements were made by the plaintiff for the second defendant to be in Court (he was produced from prison). He was present in Court for the remainder of the hearing. Whilst he did address the Court on certain matters, he did not participate in the conduct of the proceedings in any real sense. He took the position of submitting to whatever decision was made by the Court.

9 On that day, the Court received further evidence (there was a further affidavit sworn by Mr Algie, together with cross-examination and re-examination of the plaintiff).

10 A substantial body of material has been placed before the court (including a detailed affidavit affirmed by the plaintiff on 6 September 2006). It is unnecessary to repeat much of the detail that appears in such material. I propose to address the issues that have been raised between the parties and to refer to certain of the detail that is relevant to those issues.

11 The relevant limitation period expired on 10 April 1990 (six years after the plaintiff’s eighteenth birthday). There is no dispute that the proposed cause of action accrued prior to 1 September 1990 and that the application for extension of time is governed by the provisions of ss. 60G and 60I of the Act.

12 Section 60G enables the court to extend the relevant limitation period, if it decides that it is just and reasonable to do so. The Act prohibits a court from making an order under s. 60G unless it is satisfied of the matters listed in s. 60I. These have been referred to as threshold requirements. Section 60I is in the following terms:

“60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,


at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.”

13 The plaintiff bears the onus of satisfying the court of his entitlement to the relief sought. Broadly speaking, the issues between the plaintiff and the first defendant fall into two areas. The first area concerns whether or not the threshold requirements have been made out. The second area concerns the satisfying of the requirements of s. 60G. These usually concern matters such as delay, what is offered by way of explanation for delay, prejudice and the viability of the proposed claim.

14 The parties have made written submissions. The written material has been supplemented by oral argument. I shall now return to certain of the factual background.

15 Following the termination of his employment with the first defendant, the plaintiff had a variety of employments (including, following October 1994, the conduct of a business with his wife).

16 He married on 21 March 1992 and has three children. He came to have family problems. By 2001, he was struggling to cope at work due to his emotional problems. In late 2001, he broke down emotionally. During 2002, the difficulties caused by his emotional problems increased.

17 His business deteriorated and became insolvent from about April 2003. Save for employment for a few months at a car dealership, he has not been employed since early 2003.

18 It is conceded that the plaintiff had made a considerable success of his life, both occupationally and domestically.

19 He had lower back problems in 1999 (leading to laminectomies in 1999 and 2002). It is conceded that this restricted him from doing heavy work.

20 Since the termination of his employment with the first defendant, the plaintiff says that he has continued to feel unhappy and depressed (inter alia, he was worried that he had contracted AIDS). He used illegal drugs. He says that he has suffered from what he now knows to be panic attacks.

21 There have been suicide attempts. The first took place after leaving his employment with the first defendant (a drug overdose). There were two further attempts in early 2004 (overdosing with prescribed medication).

22 He kept the assaults to himself until late 2001 (when he revealed them to his sister, mother-in-law and father). On 10 January 2002, he gave a statement to the police. He says that he found the process of reliving the assaults and giving statements to the police harrowing. The second defendant came to trial (there was an abortive first trial and a second trial) and was convicted (in August 2005). The plaintiff gave evidence against the second defendant during both trials.

23 In his principal affidavit the plaintiff deposed as follows:-

“58. A large number of employees and ex-employees of the Railways gave evidence at Reardon’s trial. This included a number of others who had been call boys when I was there, who had been the subject of sexual assaults by Reardon. When I realised at that time how many other people had been involved, I started to think the Railways really should have taken better steps to protect us from Reardon.
59. After Reardon was convicted, I discussed my situation with the Crown prosecutor. He suggested I make contact with Stuart Littlemore QC, which I did. He referred me to Carroll & O’Dea, who I first contacted by phone on 22 August 2005.”

24 He was cross-examined concerning the material contained in these two paragraphs. His evidence revealed that part of what was said in paragraph 58 may not be accurate. This evidence suggested that it was probably the discussion had with the Crown Prosecutor that brought his attention to the question of the care that he now says should have been shown by the first defendant.

25 He first sought professional help from a counsellor (Susan Orkild) on 29 July 2003, following the urging of his wife. While she was not a medical practitioner, the counsellor gave him a book and told him that he was suffering from Post Traumatic Stress Disorder. He first sought medical treatment for his emotional problems from Stanthorpe Public Hospital (its Mental Health Clinic) on 14 November 2003. This was arranged by his sister and followed a threat by him to kill his children. He says that he was seen on one occasion only and that he received no treatment and was not given any diagnosis.

26 He came under the care of the Adult Mental Health Service at Maroochydore from 15 March 2004. He received treatment (including from a psychiatrist, Dr Wendy Bourke). He says that the first time he became aware of a diagnosis that he had a psychiatric condition was when he read a report prepared by Dr Bourke in about May 2005.

27 He first sought legal advice on 22 March 2005. He saw Mr Sewell of Stone and Partners. He says that he followed the advice given to him by Mr Sewell (to further discuss possible civil proceedings against the first defendant after the criminal proceedings against the second defendant had been concluded).

28 Following the conviction of the second defendant, he first contacted his current solicitors in August 2005. He met his current solicitor (Mr Harrison) on 20 October 2005 when he was in Sydney for the second defendant’s sentencing hearing.

29 What happened subsequent to instructions being given to Mr Harrison is dealt with in the affidavit material. This period was not the subject of submissions made by the first defendant on the question of delay. During the hearing on 8 November 2007, a concession was made that no point would be taken as to delay subsequent to 22 August 2005.

30 In respect of the issues concerning the first area of dispute, the written submissions originally put the position of the first defendant as follows [at paragraph 10]:-

“SRA submits that from December 2001 or at the latest January 2002 the plaintiff was aware or ought to have been aware:

a) that personal injury had been suffered; or

b) of the nature or extent of personal injury suffered; and

c) of the connection between the personal injury and the second defendant’s act or omission.”

31 The oral submissions made on behalf of the first defendant saw some retreat from that position. The position was then taken that the Court could take the view that the matters listed in paragraph (a) had been satisfied if it accepted the plaintiff’s evidence.

32 The challenge to the reliability of the plaintiff’s evidence, which was made during oral submissions, was a limited one. I formed the impression that he did his best to give truthful and reliable evidence. Largely, I accept his evidence and, in particular, I so do in respect of that given concerning the matters listed in paragraph (a).

33 I shall now set out my findings in respect of the threshold requirements. These findings have been made after a consideration of the evidence and the submissions.

34 I am of the view that the plaintiff was unaware that his problems constituted a psychiatric illness until at least he had seen the counsellor in July 2003. I consider that prior to that time he was unaware of the nature and extent of that personal injury. It seems to me that he was unaware of the connection between that injury and the first defendant’s act or omission until during 2005.

35 In the oral submissions, the main challenge concerning the dispute falling within the first area was directed to the question of whether or not the plaintiff had made out the requirements of paragraph (b).

36 As the application had been made on 15 June 2006, the relevant date was 15 June 2003. The language of the paragraph has been said to introduce a “normative element”. I am satisfied that the plaintiff has also made out this requirement. Accordingly, I do not consider that he ought to have become aware of the three matters listed in paragraph (a) prior to 15 June 2003.

37 Whilst the written submissions did raise the question of delay (between December 2001 and 15 June 2006), nothing was said about the question during oral submissions. In my view, delay has been sufficiently explained.

38 The question of prejudice was not a matter upon which the first defendant dwelt. The first defendant did not lead any evidence at all. There was no evidence of actual prejudice. It was not said that there had been a loss of witnesses or documentation. I take into account that there may well be presumptive prejudice. However, I still consider that a fair trial can be had.

39 The remaining matter relied on by the first defendant was the matter of the viability of the plaintiff‘s cause of action. The case which the plaintiff wishes to advance has been described as one of systemic failure. In looking at the question, it has to be appreciated that it is to be seen in the context of the period 1981-1983. There is little material put before the Court concerning the work practices of this period and what might be the alternative systems that the first defendant should have put in place. In this particular case, I do not consider that these deficiencies are of great significance.

40 The plaintiff was a minor who was employed to work as a call boy. His work involved office duties and waking up drivers. He was required to work on night-shifts at a roster room with one other senior employee (who was usually a roster clerk having the status of class C). The plaintiff was rostered to work with the second defendant (who did not have the status of a roster clerk, but was of class D). There was no supervision. The sleeping drivers were located some distance from the roster room. The tendencies of the second defendant were well known. Complaints had been made concerning his conduct, but no action was taken.

41 There was no dispute that a duty of care was owed. There was a risk of sexual abuse and it was foreseeable. Whatever was in place did not prevent it happening. It seems obvious that more could have been done.

42 The question of the viability of the plaintiff’s claim is not the subject of statutory prescription. However, it is regarded as a consideration relevant to the exercise of the statutory power. The authorities reveal that the power should not be exercised where it would be futile to do so.

43 In the circumstances of this case, I do not consider that to be the position. The material before this Court suggests that the plaintiff may well have an arguable case.

44 It seems to me that when regard is had to the relevant circumstances of this case, the plaintiff has discharged the onus of proof. Accordingly, I have come to the decision that it would be just and reasonable to grant an extension of time and that the Court should do so.

45 The concentration of the argument between the parties has concerned the position of the first defendant. An extension of time is sought against both defendants. The second defendant has taken no steps to defend the proceedings and has adopted the stance of submitting to the order of the Court. In my view, the material leads inevitably to the result that an order should be made also against the second defendant.

46 Before concluding this judgment, I should mention one complication. It concerns the question of whether or not the plaintiff is presently able to commence court proceedings.

47 There is issue between the parties as to whether or not the plaintiff’s claim is caught by the regime established by the Workplace Injury Management and Workers Compensation Act 1998 (NSW). If it is, the steps stipulated by that legislation must be undertaken before court proceedings can be commenced.

48 I have been requested to stand the proceedings over so that the parties can consider their respective positions in relation to this issue and I do so. The parties are to have liberty to apply.

49 There remains the question of costs. Some brief debate took place concerning it. Ultimately, there was a consensus that costs should presently be reserved and I make that order.

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