Young v The Commissioner of Fire Service

[1997] QSC 43

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No 2005 of 1991

Before the Hon. Justice Williams

[Young v. The Commissioner of Fire Service]

BETWEEN:

QUINTON NIVEN YOUNG
  Plaintiff

AND:

THE COMMISSIONER OF FIRE SERVICE
  Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 24/03/1997

CATCHWORDS: LIMITATIONS - action for damages for post traumatic stress disorder induced by work experiences - writ issued approximately 4 months after expiration of 3 year period from precipitating incident - s.31 Limitation Act 1974 considered - Brisbane South Regional Health Authority v. Taylor (1996) 78 ALJR 866 considered - limitation period extended.

Counsel:Williams QC and O'Grady for applicant

Griffin QC, Stenson and Mrs Thomson for respondent

Solicitors:Taylors for applicant

Dillons for respondent

Hearing Date:   17 March 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 2005 of 1991

Brisbane

[Young v. The Commissioner of Fire Service]

BETWEEN:

QUINTON NIVEN YOUNG
  Plaintiff

AND:

THE COMMISSIONER OF FIRE SERVICE
  Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 24/03/1997

The present action was commenced by writ issued 22 November 1991. The endorsement thereon indicates the claim is one "for damages for breach of contract of employment and/or breach of duty and/or negligence." Mention was made in the course of argument of the fact that a statement of claim has been delivered, but a copy is not to be found amongst the material on the file. The plaintiff's claim is that in the course of his employment he was exposed to psychological and emotional trauma on 4 August 1988 and that the defendant, his employer, was negligent in not providing him with counselling and other treatment reasonably necessary in order to prevent the subsequent onset of post-traumatic stress syndrome or other psychiatric illness. That failure occurred over a period of time after 4 August 1988. At this stage the plaintiff cannot be precise as to a date on which the cause of action arose, and it may be that even after a trial no precise date could be established. The difficulty which gives rise to the present application is that if the cause of action accrued prior to 22 November 1988 the claim would be statute barred - the writ being issued more than three years after the cause of action arose. In consequence the plaintiff has brought this application pursuant to s.31 of the Limitation of Actions Act 1974 for an extension of the limitation period so that it expired on 22 November 1991, the date on which the writ was issued. In order to succeed the applicant must establish that he did not know of a material fact of a decisive character relating to his right of action until after 22 November 1990 and that such fact was not within his knowledge or means of knowledge until on or after that date.
           The plaintiff was born on 3 September 1949.  He joined the fire brigade (the service operated by the respondent-defendant) on or about 14 January 1974.  From then until about the end of the year 1989 he performed service at a number of stations in the metropolitan area without significant consequences, so it would appear, to his health.  During that period he attended a number of incidents which could have been regarded as traumatic; they included extricating deceased or badly injured persons from motor vehicles, discovering burnt bodies after a fire was extinguished, and a siege incident where the lives of young children were threatened by the potential explosion of aviation gas.  None of those incidents appear to have caused any acute health problem for the applicant, though in about August 1985 he consulted a general practitioner on one occasion because of "work related stresses".
           The present claim is centred upon an incident which occurred on 4 August 1988.  On that day there was what was described in the material as a building collapse in Queen Street at the Commonwealth Bank construction site.  The applicant was involved in attempts to recover people trapped under concrete.  In particular he assisted in removing a piece of steel reinforcing which had penetrated a child's head.  The applicant was at the scene for about an hour and he found the whole incident to be "very traumatic and upsetting".  On return to the station he was immediately directed to attend to other more normal duties.
           He was not then, or in the weeks that followed, given any counselling; nothing was said by or on behalf of the respondent to indicate that such services were available if required nor was there any recommendation that personnel who had been involved in such a traumatic incident should seek counselling.
           According to the applicant's affidavit he experienced over the following months "difficulties performing my administrative duties, although I was not consciously aware of these difficulties at the time."  That situation appears to have continued until about November 1989.  At that time the applicant was a station officer in the Safety Equipment Department at the Roma Street station.  In November he was to be involved in the introduction of a new training format for probationary firemen relative to the use of breathing apparatus.  That led to his having an "administrative disagreement" with the District Officer.  In the course of that conversation "I suffered an emotional breakdown and I started babbling about the Queen Street incident on 4 August 1988.  I was extremely distressed and I was crying.  This went on for approximately five minutes."
           Following some discussion with the District Officer contact was made with Dr Wilkes of Taringa.  The medical certificate which Dr Wilkes then issued did not expressly refer to any specific condition; the reference was to the "medical condition from which he is currently suffering".  However it would appear from the report from Dr Wilkes to the applicant's then solicitor of 28 September 1992 that the applicant was initially told that he was suffering from "severe and prolonged post-traumatic stress disorder".  Significantly that report continues:

"Despite an explanation by myself to him of the condition from which he was suffering, and an explanation of a proposed plan of management, he proved to be suffering so strongly from the Denial-Avoidance constellation of symptoms that he could not accept that this could happen to him.

Hence his compliance with any attempted treatment and his attendance for help was poor spasmodic over the following two years.

This is understandable when it is recognised that between the event (4.8.88) at his first consultation (14.11.89) he had received no assistance in any form as regards debriefing of the Critical Incident and in fact had never heard of Critical Incident Debriefing and the condition of Post-Traumatic Stress Disorder.  This simply allowed his condition to worsen significantly to the point that he was essentially too detached and too depressed to gain insight into his condition and that he was in desperate need of active treatment for his condition."

He also saw Professor Beverley Raphael in November 1989.  She formed the view that the applicant was then suffering from post-traumatic stress disorder.  But she also went on to say in her affidavit that at that time:  "He also showed active avoidance phenomena with both diminishing of affect and the avoidance of issues."
           The applicant continued working though he made numerous requests for transfers away from Kemp Place Station; he was not receiving any ongoing treatment.  In about February 1991 he took leave for about seven weeks.  In May 1991 he again "started to lose control and I felt that I would have difficulty carrying out my duties without extreme stress."  There was something in the nature of a breakdown on that day.  Thereafter he was transferred to the Ithaca Station where he continued working for several months though "feeling generally unwell".  Then in about October 1991 he was transferred back to Kemp Place.  That occasioned extreme anxiety.  In November 1991 he spoke to Gayle Cullinan who was the manager of the then Stress and Trauma Program of the Fire Brigade.  She provided him with a series of articles containing information on critical incident stress.  He read those articles and according to his affidavit "for the first time I really fully acknowledged that I did have a problem".
           After again consulting with Dr Wilkes the applicant took workers' compensation leave from 30 October 1991 until 22 February 1992 and thereafter he took annual leave until 8 March 1992.
           In his affidavit the applicant relevantly to the present application says:

"Further on each occasion I had suffered problems in the incidents mentioned above, I had taken leave and I had been able to return to work and accordingly on each occasion I thought that my problems had been resolved.  Because of these matters I did not know nor did I have reason to believe that I had a cause of action against the Fire Brigade.  Further I did not know nor did I have reason to believe that I was suffering from an injury to the extent that it was worthwhile seeking damages by way of legal action.  I had suffered no loss of income and I believed that I would be able to continue in the Fire Brigade until normal retirement age."

On 3 December 1994 the applicant was required to retire from service with the fire brigade on medical grounds.
           The applicant's material appears to establish that until about November 1991 no permanent disability had been diagnosed, and while he had occasionally received treatment he had always been able to return to work.  It had not been necessary for him to claim workers' compensation until October 1991.  Up until then the plaintiff had not suffered any financial loss and any possible claim for general damages would have been limited to the occasional incidents of apparent depression which had resulted in his receiving treatment.  From about November 1991 the applicant became aware that he was suffering from a serious psychiatric problem and that it was likely to have a significant impact on his earning capacity.  He also became aware at about that time that the effects of the incident of 4 August 1988 on him could have been significantly reduced by timely and appropriate psychiatric counselling and care.
           In those circumstances the submission on behalf of the applicant is that the facts called for a similar resolution to that adopted by the Full Court in Byers v. Capricorn Coal Management Pty Ltd (1990) 2 Qd. R. 306. In that case the plaintiff, relying on certain medical advice, had believed that his injury was only a muscle strain which would resolve itself. No financial loss had been sustained between the accident on 4 March 1985 and June 1988 (outside the limitation period) when he was informed for the first time that he would have to cease his highly paid employment and seek different and lighter employment as a result of the serious nature of his injury. In those circumstances the limitation period was extended; the court held that the advice as to the necessity to change employment was as to the extent of the injury and was a material fact of a decisive character.
           Counsel for the applicant also contended that it was only in October 1991 that the plaintiff became aware that he ought to have been provided with ongoing counselling, that such counselling would have alleviated his symptoms and condition, and that his employer's failure to provide and maintain that counselling had caused his psychiatric condition to become chronic, which led to the loss of employment.  That submission is well founded on the evidence.
           It is correct, as held by the Full Court in Taggart v. The Workers' Compensation Board of Queensland (1983) 2 Qd. R. 19, that the fact, discovered outside the limitation period, namely that the injury was more serious than previously realised, should not be considered separately from the facts already known; it should be regarded in context with such other facts. To my mind it is of critical importance here that the applicant's psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences. The very psychiatric condition in question militated against the applicant knowing its seriousness and probable consequence. In all of the circumstances of this case the newly discovered fact did not merely go to the enlargement of the applicant's prospective damages; it went to the very existence of the injury and the causes thereof.

On the evidence the applicant has satisfied the conditions necessary for there to be an extension of time pursuant to s.31.
           But once the conditions defined in s.31 are satisfied the applicant must still satisfy the court that it should exercise its discretion in favour of extending the limitation period.  As Dawson J said in Brisbane South Regional Health Authority v. Taylor (1996) 78 ALJR 866 at 866:

"The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing.  The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant.  To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant."

In that case the surgical procedure giving rise to the cause of action was performed over 17 years prior to the application being made.  Here the respondent emphasised the time lapse of more than 8 years since the incident on 4 August 1988 which precipitated the applicant's condition.  But, in my view, that is not the appropriate period to consider when one is determining whether or not to exercise the discretion in the applicant's favour.  Here the writ was issued, and the action commenced, on 22 November 1991, less than four months after the limitation period would have expired with respect to a cause of action commencing on 4 August 1988.  Indeed it may well be that without any extension of the limitation period the applicant could succeed in his action as presently framed against the respondent.  As already noted the applicant's case is that the cause of action arose, at the earliest, some time after 4 August 1988; the difficulty is in establishing a precise date.  If at the trial the applicant established that the cause of action arose on or after 22 November 1988 then he would succeed without there being any extension of the limitation period.  It is only to meet the possibility, perhaps probability, of the court finding that the cause of action accrued between 4 August and 22 November 1988 that this application is brought.  The critical time for determining whether or not the respondent has been prejudiced by the failure of the applicant to commence the action within the limitation period set by s.11 is the date on which the writ was issued, namely 22 November 1991.  Extending the limitation period as sought by the applicant would not raise any new issue for the respondent's consideration which would not have been immediately obvious on receipt of the writ.  In December 1991 the defendant received from the applicant's then solicitor a comprehensive statement of the applicant dealing with all relevant issues; it probably gave more information than would have been gleaned from a statement of claim.  Thereafter the defence was in a position to gather and record all material relevant to the conduct of the defence.
           It is of some relevance on the question of the exercise of discretion that the applicant has been somewhat tardy in prosecuting the action but in the circumstances that has not as yet resulted in any significant prejudice to the defendant.
           Given all the matters to which I have referred, I have come to the conclusion that justice is best served by extending the limitation period as sought.  There will be an order accordingly.