Court of Appeal Grants Leave to Appeal Limitation Period Case

The Court of Appeal granted leave to appeal, set aside a lower court decision and remitted the matter for trial due to issues with the respondent's awareness of personal injury and its connection to the claimant's acts or omissions. The case involved an application under s 60G of the Limitation Act 1969.

OUTCOME: [ADDRESS] of Appeal

CITATION : [NAME] v [NAME] [2004] NSWCA 68 HEARING DATE(S) : 10/02/04, 11/02/04 JUDGMENT DATE : 18 March 2004

JUDGMENT OF : Giles JA at 1; Ipp JA at 7; [NAME] at 8 DECISION : Leave to appeal granted - Decision of [NAME] set aside - Matter remitted to the District Court - Costs costs in the cause

CATCHWORDS : Limitation Act 1969 - Section 60I(1)(a)(i) - (iii) LEGISLATION CITED : Limitation Act 1969 s18A, s60G, s60I CASES CITED : [COMPANY] v Nelson (1988) 3 NSWLR 454 CLAIMANT [NAME] PARTIES : [NAME] [NAME] [NAME](S) : CA CA 40126/03 [NAME] [NAME] [COUNSEL] [NAME] with [NAME] [COUNSEL] COUNSEL : [redacted] [NAME] [NAME] with [NAME] [APPELLANT]

[NAME] [NAME] for Commissioner of [NAME] SOLICITORS : [redacted] CLAIMANT [NAME] Court JURISDICTION : [NAME] 11296/01 FILE NUMBER(S) : [NAME] [NAME] :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40126/03

Giles JA Ipp JA [NAME] 18 March 2004

[NAME] v [NAME]

1 GILES JA: I have had the advantage of reading the reasons of [NAME] in draft. They enable me to be brief in stating why I agree with the orders [NAME] proposes. 2 [NAME] has explained that it was necessary for [NAME] to demonstrate that he was not aware and ought not have been aware of at least one of the three matters in s 60I(1)(a)(i)-(iii) prior to 1 February 1999. That is so if it be assumed that [NAME]'s cause of action accrued prior to 13 November 1998. Staying with that assumption, [NAME] was in error in finding that [NAME] was not aware of the extent of his personal injury (s 60I(1)(a)(ii)) until he read Dr [NAME] report on 25 June 2001, because Dr [NAME] report did not deal with the extent of his injury, but the judge did not address whether [NAME] was not aware and ought not have been aware of the connection between the personal injury and the claimant's act or omission (s 60I(1)(a)(iii)) prior to 1 February 1999. Thus either this Court had to determine the issues of [NAME]'s awareness and if necessary exercise the discretion under s 60G, or there had to be a remission to the District Court for that to occur. 3 The assumption was not necessarily correct. [NAME]'s cause of action was complete when he suffered personal injury, on his case suffered a recognised psychiatric disorder. The statement of claim alleged the suffering of a recognised psychiatric disorder in the course of his employment, leaving when it was suffered at large between July 1984 and August 1999. [NAME]'s application for an order that the limitation period be extended was predicated upon the expiry of the limitation period prior to 13 November 1998, that is, upon the suffering of a recognised psychiatric disorder by that date. But there has been no determination that he suffered a recognised psychiatric disorder by 13 November 1998. 4 Even if an order extending the limitation period be refused, it will be open to [NAME] to continue his proceedings and seek to prove that he suffered the psychiatric disorder after 13 November 1998. [NAME] indicated a wish to do so. As is apparent from [NAME]'s evidence and the report of Dr [NAME] to which [NAME] refers, November 1998 could be a critical time for this. The claimant's evidence placed his giving evidence and being denied witness protection only as in "November 1998", and said that his "breakdown" occurred on 26 November 1998. Dr [NAME] report spoke of a recognised psychiatric disorder "at some time in 1998". 5 I do not think it a profitable use of the parties' time and money or the resources of this Court or the District Court now to determine the issues of [NAME]'s awareness and if necessary exercise the discretion under s 60G. While predicated upon the suffering of a recognised psychiatric disorder by 13 November 1998, the application for an order that the limitation period be extended was probably not an admission to that effect. If it was, it was evidentiary only, and does not preclude continuation of the proceedings and seeking to prove that [NAME] suffered the psychiatric disorder after 13 November 1998. Separate decision of the application may lead nowhere, and determination of when the psychiatric disorder was suffered and, so far as necessary, whether an extension of the limitation period should be granted, are best done together and on the evidence which will be led at the trial. 6 In the circumstances of this case, therefore, the orders proposed by [NAME] should be made. 7 IPP JA: I agree with [NAME] and [NAME] 8 [NAME]: This is an application for leave to appeal a decision of [NAME] published on 14 April 2003 in which [NAME] ordered that the limitation period for the cause of action pleaded in [NAME]'s Statement of Claim dated 13 November 2001 be extended up to and including 1 February 2002. 9 In his Statement of [NAME] alleges that during the course of his employment as a police officer (between July 1984 when he joined the Force and August 1999 when he was medically discharged) he suffered an injury, being a recognised psychiatric disorder, consequent upon what he alleges was the failure of the claimant to provide him with a safe system of work. The recognised psychiatric disorder is described in the Statement of Claim as being a Major Depressive Illness, Adjustment Disorder with mixed features of anxiety and depression and Post Traumatic Stress Disorder. 10 Between 1990 and 1993 [NAME] was an undercover agent. It does not appear to have been disputed that he was required to perform dangerous and stressful work. He was often "wired up" and was required to associate with convicted criminals. In the course of his duties he received death threats. In 1998 and after being required to give evidence against an accused he sought, but was refused, witness protection. 11 He alleged that his psychiatric disorder was the result of the negligence of the claimant in that it failed to provide him with a safe system of work. The particulars of negligence are extensive but in essence it is alleged that he was assigned and performed dangerous work without adequate training, adequate support or any proper measures being taken to protect his well-being and safety. 12 [NAME] it appeared to be accepted that [NAME] had a good arguable case that he was suffering from a recognised psychiatric disorder and that it was the result of the activities he undertook as a member of the Force. 13 In November 1998 and following the giving of evidence against a known criminal and being denied, as he sought, witness protection he suffered a serious "nervous breakdown" which resulted in him being off duty until he was discharged as medically unfit in August 1999. 14 After receiving the Statement of Claim dated 13 November 2001 the [NAME], apparently, indicated that it would plead that [NAME]'s action was not maintainable because it was brought after the expiration of the limitation period of three years from the date on which his cause of action first accrued. (Section 18A of Limitation Act 1969). 15 This caused [NAME] to bring an application pursuant to s 60G of the Limitation Act 1969 for an order that the limitation period be extended. 16 Section 60I of the Limitation Act 1969 relevantly provides:

(1) A court may not make an order under s 60G …. unless it is satisfied that: (a) the plaintiff: [redacted]

(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 the time before that expiration when proceedings might reasonably have been instituted and, (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in para (a)(i) – (iii). 17 The application for an extension of time was dated 31 January 2002 and filed on 1 February 2002. Accordingly in order to attract the indulgence of the [NAME] was required to demonstrate that he was not aware and ought not have become aware of at least one of the matters referred to in section 60I(1)(a)(i)-(iii) prior to 1 February 1999. 18 As I have said, in November 1998 he suffered a serious "nervous breakdown". He was treated by a psychiatrist Dr [NAME] who in a report dated 20 October 2000 and after referring to difficulties [NAME] had experienced before and after he was transferred to the Water Police said: "[NAME] [NAME] condition further deteriorated in 1998 when he was required to give evidence in a court case relating to his undercover work in the early 1990's. He told me that he became increasingly anxious, his mood was labile, he became more irritable, distressed and angry. He told me that he began drinking excessive amounts of alcohol and was sleeping poorly and having frequent violent nightmares. He experienced occasional flashbacks during the daytime and had been told that friends and family noticed a change in his demeanour. He told me that he felt alienated from people during that time and also rather disturbingly found himself "reliving" aspects of his undercover work including attending some of the old haunts. He told me that he believed he was at times behaving as if he was still his undercover identity. He has not worked as a police officer since that time." 19 In a later report dated 9 September 2002 Dr [NAME] said: "Based on information given to me by [NAME] [NAME] I believe that he suffered from psychiatric impairment from some time in 1998, and it was still intermittently present when I saw him in October 2000. It is difficult to say for how long [NAME] [NAME] was continuously incapable of or substantially impeded in the management of his affairs as a result of his psychiatric impairment. His level of symptomology and distress reduced after he stopped working as a police officer, but he continued to experience some residual symptoms which adversely impacted on him which were still evident when I last saw him on 7 August 2001." 20 When the matter was opened [NAME] [APPELLANT] who appeared on behalf of the claimant told the Court that, in essence, the case was concerned with s 60I (1)(a)(i) – (iii) and that they would be the "focus of cross-examination." [NAME]'s representative Ms [COUNSEL] [NAME] said "We can perhaps narrow that that because we only rely on sub clause (2) (sic) and (3) (sic) of subs (a) of section 60I." 21 Ms [NAME] told the Court that relevant to [NAME]'s application was his request for witness protection in 1998 and she said: "Its acts and omissions from when he went into undercover work on a full time basis in 1990 until he suffered his diagnosable mental disorder in November 1998 and there are a number of things in his affidavit, that took place after he ceased being an undercover agent which basically related to things which he had done as an undercover agent, such as giving evidence at various trials, and the escape of a prisoner, hearing about death threats."

Later she said "the straw that broke the camel's back'" was an occasion when he gave evidence towards the end of 1998 against a known criminal. 22 [NAME] was called and, in chief, gave the following evidence: "Q. [NAME] could you tell [NAME] when did you first become aware of the nature and extent of your injuries? A. In 1998 when I had a nervous breakdown. Q. And when did you become first aware that there was a connection between that nervous breakdown and the acts or omission of the defendant? A. Shortly after that, after I had the breakdown I connected everything up. Q. When did you first seek some legal assistance about this problem? A. Sometime in 1999 I spoke to another undercover friend of mine or ex undercover friend who gave me [NAME]' number. Q. And did eventually you read the report of Dr [NAME]? A. Yes I did. Q. Was there information in that report that you hadn't been aware of before? A. Yes he enlightened me as to what work stresses has caused my problem." 23 In re-examination [NAME] was asked: Q. When did you first realise you wouldn't be able to continue in the Police Force? A. On that day, the day I had the breakdown. 24 In the course of his cross-examination [NAME] was taken to the detail of the symptoms he exhibited in or about 1993 and in 1998. These included diminished interests in activities of daily life, diminished interests of pleasure in daily life, changed sleeping patterns and insomnia. Weight gain, excessive alcohol consumption, agitation, fatigue and feelings of worthlessness together with "paranoia" and a diminished ability to concentrate. 25 In reaching his decision to grant an extension of time the learned trial judge dealt only with section 60I (1)(a)(ii). [NAME] found that [NAME] became aware of the "extent" of his personal injury when he read the report of Dr [NAME] on 25 June 2001. Dr [NAME] is an Ergonomics and Safety Management Consultant and his report was directed to the connection between [NAME]'s work requirements and the measures that could have been taken to avoid occupational stress. The finding that [NAME] was not aware of the "extent" of his injury until he read Dr [NAME] report was plainly erroneous and so much has been conceded by [NAME]'s counsel in the application before this Court. 26 Most of the cross-examination of [NAME] was directed to the symptoms he experienced in 1993 and 1998 which, generally speaking, were referred to as being "psychological problems" or "adverse psychologically effects". There appeared to be very little attention directed to when his "psychological problems", which would not have been compensable even if they were the consequence of acts or omission of the claimant, became a recognised psychiatric condition that could be compensable. That was because, I surmise, of the concessions made by [NAME]'s barrister and [NAME]. 27 However as I have said a concession was made by [NAME]'s senior counsel before [NAME] that [NAME] knew that he had suffered personal injury as those words must be relevantly understood in 1993. Furthermore as appeared in the transcript [NAME] in answer to a question from his barrister he said that he first became aware of the "nature and extent" of his injuries in 1998 when he had the nervous breakdown.

28 However, as I have said, [NAME]'s case was upheld upon a finding that he was not aware of the extent of his personal injury until he had read the report of [NAME] dated 25 June 2001. [NAME] simply did not deal with the question whether before 1 February 1999 he was unaware of the connection between the personal injury suffered and the claimant's acts or omissions (section 60I (1) (a) (iii)). I should also mention, however, that no notice of contention was filed on behalf of [NAME] to the effect that the learned trial judge failed have regard to section 60I (1)(a)(iii) and that had he done so he would have extended the limitation period. 29 In the above circumstances the question for this Court is what should it do. The decision of the learned trial judge was an interlocutory order ([COMPANY] v Nelson (1988) 3 NSWLR 454.) It was plainly wrong. However the District Court failed to determine when it was that [NAME] became aware of the connection of what appears to be accepted as a potentially compensable psychiatric illness and the claimant's acts or omissions. 30 [NAME] [COUNSEL] [NAME] on behalf of the claimant points out that [NAME] is bound by the concessions made and that there has been no notice of contention. He submits the application for leave to appeal should be granted and that it be determined by this Court that [NAME] has failed to satisfy any one of the three matters referred to in section 60I. 31 On behalf of [NAME] it has been submitted that in the circumstances it would be unfair, in effect, to strike out [NAME]'s claim in circumstances where the learned trial judge did not deal with the issue raised under section 60I (1)(a)(iii). 32 In my opinion the appropriate order for this Court is to grant leave to appeal, set aside the order of [NAME] and remit the application to the District Court with the direction that the limitation issue be determined at trial because of the special circumstances of the case 33 In reaching the above conclusions I have not overlooked the submission on behalf of the claimant that the concessions made before [NAME] in the interlocutory application may be withdrawn (or at least an attempt may be made to withdraw them) at trial. However in my opinion the prejudice to [NAME] of not allowing the matter to be fully ventilated as it should have been before the learned trial judge outweighs the prejudice referred to by [NAME]. 34 [NAME] [COUNSEL] also submitted that the discretion of the learned trial judge miscarried and that he ought not to have extended the period of time. Bearing in mind that the entire matter must be determined afresh at trial I refrain from expressing any view as to whether or not the learned trial judge's discretion miscarried. 35 Accordingly I would propose the following orders:

1. Leave to appeal be granted.

2. The decision of [NAME] be set aside.

3. That the matter be remitted to the District Court and the question whether the claimant's cause of action is statute barred be determined at trial.

4. The costs of the application before this Court be costs in the cause.

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