State of New South Wales v Brennan [2004] NSWCA 206

New South Wales Court of Appeal

CITATION : State of New South Wales v Brennan [2004] NSWCA 206 HEARING DATE(S) : 08/06/04 JUDGMENT DATE : 23 June 2004

JUDGMENT OF : Handley JA at 1; Cripps AJA at 2 DECISION : Leave to appeal granted - Appeal allowed in part - Order of trial judge varied.

CATCHWORDS : Limitation period extended - Prejudice - Systemic negligence distinguished from individual acts of police officers contrary to duty. LEGISLATION CITED : Limitation Act 1969 Police Regulation (Superannuation) Act 1906 CLAIMANT PARTIES : State of New South Wales OPPONENT Susan Lynette Brennan FILE NUMBER(S) : CA 40724/03 CLAIMANT Mr P Menzies QC with Mr P D A Mallon

COUNSEL : OPPONENT Ms S Norton SC with Mr G Niven

COMMISSIONER OF POLICE Mr P F Singleton (intervening) CLAIMANT Crown Solicitor SOLICITORS : OPPONENT Phillip Sim & Associates

LOWER COURT District Court JURISDICTION : LOWER COURT 12993/01; 12995/01 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40724/03

HANDLEY JA CRIPPS AJA

Wednesday 23 June 2004

STATE OF NEW SOUTH WALES and SUSAN LYNETTE BRENNAN

Judgment 1 HANDLEY JA: I agree with Cripps AJA. 2 CRIPPS AJA: This is an application for leave to appeal against a decision of Judge Berman DCJ published on 11 August 2003 in which his Honour extended the limitation period for the opponent's cause of action and granted her leave to file and serve a statement of claim within seven days of 11 August 2003. 3 At the conclusion of argument the Court granted leave and indicated it would vary the order of the learned trial judge by limiting the particulars of negligence on which the opponent was entitled to rely and that, in all the circumstances, the claimant should pay the costs of the appeal. I now publish reasons for agreeing with the course taken and setting out the orders I think should be made. 4 The opponent Susan Lynette Brennan commenced proceedings in the District Court on 26 November 2001 claiming damages for personal injury founded on negligence by the claimant, the State of New South Wales, by reason of circumstances associated with the terms of her employment as a police officer between February 1974 and October 1997. On 2 October 1997 she was found to have been "hurt on duty" and she was retired from the Police Force as medically unfit. 5 The parties treated s 18A of the Limitation Act 1969 as the relevant legislation provision. This provides that a cause of action founded on negligence is not maintainable if brought after the expiration of the limitation period of three years running from the date on which the cause of action accrued. It was not disputed that the opponent's cause of action first accrued well before 26 November 1998. In order for the opponent to enliven the discretionary indulgence of the Court pursuant to s 60G of the Limitation Act it was necessary for her to bring herself within one of the three "gateway" provisions in the s 60I of the Act and thereafter to establish it was just and reasonable for the limitation period to be extended. 6 The opponent claimed an entitlement for an extension of time within which to commence proceedings pursuant to s 52 of the Limitation Act by reason of her claimed "disability". The learned trial judge was of the opinion she had made out a case for an extension of time pursuant to s 60G and it was therefore unnecessary to deal with her alternative application. For the same reason it is unnecessary for this Court to further consider the application under s 52. 7 Section 60I(1) relevantly provides: "A Court may not make an order under s 60G of 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 the 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 the expiration when the 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 three matters listed in paragraph (a) (i) – (iii)."