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)." 8 The opponent joined the Police Force in 1973. At that time she was one of four women recruited in that year. In May 1978 she commenced working in the undercover section of the Drug Squad. 9 It is unnecessary to set out in detail the nature of the work undertaken by the opponent as an undercover operative. As the learned trial judge found (and it was not disputed on appeal): "It is sufficient to say that the conditions of her work and what was required of her were highly stressful (indeed even that description may be fairly thought to have underestimated the severity of the stress and anxiety which the plaintiff's work created)". 10 In the course of her undercover duties the opponent came into close contact with vicious criminals and constantly had to pretend she was some person other than herself. 11 In December 1984 she was transferred out of the Drug Squad to the National Crime Authority. In 1987 she returned to the Drug Squad where she undertook what was described as "normal" (ie not undercover) work. Later she returned to the National Crime Authority and in 1992 she was transferred from it to the Marrickville Police Station as second in charge of detectives. 12 In addition to her claim of stress caused by undercover work she was required to undertake she has also claimed that the manner of her transfer to normal police work also put her under considerable stress because she did not know, contrary to what was assumed she did know, how properly to discharge the ordinary duties of her new position. 13 In 1996 the opponent wrote a lengthy report in support of her application for discharge claiming she was suffering from work-related stress and concluding that the duties she had been performing in the Police Service had resulted in her psychiatric illness. She said: "I have no hesitation in laying the blame for my present physical and mental deterioration, on the past lack of support I have been given and in some instances, the negligence of senior management in the use and employment of the staff under their control." 14 Upon discharge she was informed that she had become entitled to a pension pursuant to s 10B(i) of the Police Regulation (Superannuation) Act 1906. The claimant accepted she was suffering from a "major depression" and that this was as a result of her being hurt on duty - the date of injury being nominated as March 1996. 15 In her statement of claim the opponent has alleged that by reason of the systemic negligence of the claimant in and about her employment as a police officer both as an undercover officer and later when she was transferred to non-undercover duties she suffered injuries described as "major depressive illness and adjustment disorder with mixed features of anxiety and depression". 16 Although there was a dispute before Berman DCJ his Honour found that at the expiration of the limitation period the opponent knew that she had suffered personal injury (60I(1)(a)(i)) and she was also aware of the connection between personal injury suffered and the claimant's acts and omissions (s 60I(1)(a)(iii)). 17 However his Honour also found that she was unaware of the nature or extent of the personal injury suffered and did not become aware of it until about August 2000 after she saw a psychiatrist (s 60I(1)(a)(ii)). 18 Before this Court the claimant has submitted that the learned trial judge erred in finding that the opponent was unaware of the nature or extent of the injury suffered. It also submits that assuming the opponent has enlivened the discretionary indulgence of the Court the learned trial judge's discretion miscarried because he failed properly to have regard to the actual and presumptive prejudice that would be suffered by the claimant should the opponent's case proceed. 19 In the early 90's the opponent sought psychological assistance from Ms Tamara Kitson. She attended her local doctor Dr Molesworth and he referred her to a psychiatrist Dr Strum who saw her in March 1996. Dr Strum identified a psychiatric history going back to before 1984 and resulting in an inability by her to cope with her workload. He noted that by March 1996 she had become severely depressed and was suffering from a number of symptoms which included dysphoria, tearfulness, loss of interest, loss of appetite, insomnia and panic attacks. He emphasised what he described as "an extraordinary police career by reason of the amount of time spent undercover and the stressful situations faced". 20 Dr Strum also obtained a history of pneumonia and an episode of cancer. However he was of the opinion that her depression was not secondary to pneumonia and cancer because it preceded both. He believed these illnesses may have had some role to play in reducing her capacity to cope but in essence he attributed her psychiatric condition to the duties she was required to perform within the prevailing system. He recommended that she be medically discharged. 21 The opponent in a lengthy affidavit described her undercover work and the aspects of duties she was required to undertake in the Police Force and their effects on her. She said she believed that she would only get better if she left the Police Force. In her affidavit she said: "I thought I would improve more than I had, and I did not realise that I could take any action against the Police Service for compensation for my psychiatric problem. I did not realise the full extent of my psychiatric problems until I saw Dr Wright and it was not until I was introduced to a solicitor called Mr Glen Ferguson that I realised that I might be able to commence some action against the Police Service". 22 The opponent has said she remained extremely unwell for at least eight months after she left the Force. After that time there was some improvement but she never completely recovered. She said it was not until August 2000 she learned of the potentially serious consequences of her injury. The learned trial judge accepted Dr Wright's report dated 5 November 2000 in which he opined that the very illness from which she suffered would have reduced her ability to be aware of the nature and extent of her illness. 23 The opponent was extensively cross-examined concerning her understanding of her medical condition. She admitted she knew that she had suffered personal injury and was aware of the connection between the personal injury and the claimant's acts or omissions. However she maintained that it was not until she saw Dr Wright that she was aware of the nature and extent of her psychiatric problems. It was never put to her in terms that the nature and extent of her psychiatric disorder was known by her prior to August 2000. She said she was aware she was not improving as she thought she should and she thought that was because of some deficiency in her make-up. After seeing Dr Wright she became aware that this was not because of some deficiency in her make-up but because of the psychiatric condition from which she suffered. 24 Mr Menzies QC on behalf of the claimant has submitted that the learned trial judge confused the task he was required to undertake and that in truth he should have understood her evidence to mean that she was unaware of the connection between her injury and the claimant's acts or omissions (s 60I(1)(iii)) and because he found that she was in fact aware of the connection he should have rejected her claim. However I do not think this submission should be accepted. Accepting that she was aware that her depression was connected to the claimant's acts or omissions the learned trial judge found, as he was entitled to, that the nature or extent - particularly the extent – of her psychiatric condition was not known to her until August 2000. 25 It was also submitted that the learned trial judge should have concluded that in the eight months after she saw Dr Strum she must have known the nature and extent of her injury because she knew she was not making a full recovery. However as I have already mentioned although the opponent was cross-examined extensively concerning when she was first aware of an injury and the connection between it and the claimant's acts or omissions it was never put to her in terms that she was not telling the truth when she said she was not aware of the nature and extent of her injury prior to August 2000. In my opinion the conclusion of the learned trial judge was open and the submission of the claimant should be rejected. 26 The claimant has also submitted that even if the opponent had an entitlement to have her application considered the discretion of the learned judge miscarried and that was reflected in the findings he made concerning the prejudice that would be suffered by the claimant should the opponent's action be allowed to continue. 27 The learned trial judge found there was some prejudice to the claimant. Moreover he recognised that the opponent's awareness of the depressive illness and its connection with her police work was relevant to the question of whether it was just and reasonable to extend the limitation period. 28 As I have said the claimant was treated by her general practitioner Dr Molesworth. He died in 1995. It was submitted that although his records were available he could not be cross-examined. The claimant has also referred to the circumstance that Mr Mansell a former undercover police officer who had worked with the opponent died in 1990. 29 The claimant points to the circumstance that records concerning the day-to-day operations have been destroyed and hence allegations of inappropriate conduct by members of the Police Force, if made, would be extremely difficult to rebut. 30 As I would understand the opponent's case it is that she suffered from and continues to suffer from a major depressive illness being the consequence of the system the Police Service had in dealing with undercover agents and when placing them in other positions in the Police Service rather than on the conduct of any particular police officer or officers. The opponent has alleged some harassment from a superintendent in 1992 when she was transferred to normal ie non-undercover duties. But as I would understand her claim this harassment was the consequence of the system and not of a police officer misbehaving. 31 The opponent produced an eight-page list of undercover operations. Sometimes assisting officers were named and sometimes not. Mr Mansell is referred to only once. Others are referred to more than once and, I infer, they are available to be called as witnesses. 32 There is one matter of justifiable complaint but I do not think it is of great moment. The learned trial judge referred to the fact that the prejudice to the claimant by the absence of duty books and official notebooks being no longer available was limited because of the availability of diaries kept by the opponent over the relevant period. The opponent's diaries were in Court under subpoena from the claimant. They were not tendered in evidence and the opponent was not cross-examined to suggest that her affidavit or oral evidence was inconsistent with the contents of her diaries. However there is some substance in the submission that because the learned trial judge did not know what was in the diaries it was difficult to see how he could conclude that they would have had any effect on the speculative prejudice claimed to be suffered by the claimant. But as I have said I think this is relevantly a minor matter. 33 Subject to one matter shortly to be mentioned in my opinion it has not been shown that the learned trial judge's discretion miscarried by reason of failure to recognise and properly take into account the prejudice that would be suffered by the claimant should the matter proceed to a hearing upon the basis that the opponent's case in essence is one of systemic negligence. 34 In her statement of claim the opponent particularised negligence in terms referable to the system to which she and other members of the Police Force were subjected as undercover operatives and later when undertaking ordinary police duties. The particulars of negligence were: " 5. PARTICULARS OF NEGLIGENCE The plaintiff claims the defendant: (a) failed to devise, institute and maintain a safe system of work so as to avoid injury to the plaintiff; (b) failed to adequately warn the plaintiff of the dangers incidental to her work; (c ) failed to provide the plaintiff with adequate training to perform her duties; (d) failed to provide the plaintiff with any or adequate psychological counselling and or other counselling; (e) failed to conduct its operations so as not to expose the plaintiff to unnecessary risk of injury; (f) failed to take any or adequate measures to prevent the plaintiff's identity as an undercover police officer being revealed to known criminals; (g) failed to take any or adequate measures to prevent contact between the plaintiff and target criminals following undercover police operations; (h) failed to respond or adequately respond to the plaintiff's fears for her safety; (i) failed to properly plan, implement, monitor and or supervise duties assigned to the plaintiff. (j) failure to respond and or properly respond to the welfare and or well being of the plaintiff; (k) failure to introduce and or properly maintain a system of care for the psychological well being of the plaintiff; (l) failure to establish and maintain good and recognised procedures for the rotation of duties of undercover police officers in the position of the plaintiff; (m) failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the plaintiff into mainstream policing duties; (n) transferring the plaintiff to duties without any or adequate training and or reorientation; (o) failure to establish good and recognised procedures for the counselling and or debriefing of undercover police officers in the position of the plaintiff." 35 As I have said the opponent's claim is directed to the system not to misbehaviour within the system. However particulars 5(e), (g) and (i) might lead to the introduction of evidence of misconduct by certain officers more than twenty years ago. And if that happened the claimant would be prejudiced. That is to say I think it would be prejudicial to the claimant to allow the opponent to make allegations against particular police officers that they behaved otherwise than in accordance with the system under which they all worked. The opponent has particularised (5(h)) that the claimant "failed to respond or adequately to respond to the plaintiff's fears for her safety". In my opinion this particular should be deleted insofar as it is an allegation that a particular police officer in contravention of his obligation under the system did not do what the system held he should do. 36 The opponent has amended 5(i) and it now reads that the claimant "failed to maintain good and recognised procedures with respect to undercover work and to properly plan, implement, monitor or supervise duties assigned to the plaintiff". 37 As I have said if the opponent were allowed to lead evidence that certain police officers conducted themselves outside the system the claimant would be prejudiced. However the opponent has made it clear that her case is one of systemic negligence. Subject to what is mentioned below I do not think the learned trial judge's discretion miscarried. 38 I am of the opinion that leave to appeal should be granted and the order of the learned trial judge varied by adding after the second order made "provided it is understood that the Particulars of Negligence at pars 5(e) and (g) are directed to a claim of systemic negligence and not to the conduct of police officers unlawfully or inappropriately conducting themselves contrary to the system". Particular 5(h) should be deleted insofar as it contains an allegation that a particular police officer, in contravention of his obligations under the system, did not do what the system held he should do. I have already referred to amended particular 5(i). 39 Upon the findings I have made I think the claimant should pay the opponent's costs. The opponent was successful in her submission that the learned trial judge did not err in his understanding and application of s 60I(1)(a)(ii) of the Limitation Act. I am of the opinion that the learned trial judge's discretion did not miscarry in determining that it was just and reasonable to extend the limitation period. 40 I have some sympathy for the learned trial judge because it would seem that the case before him was conducted upon the basis of an allegation of systemic negligence. It was not until the matter reached the Court of Appeal and the particulars were more closely looked at that it became necessary to vary the particulars upon which the opponent is entitled to rely in order to avoid injustice to the claimant – making it clear that the claim of the opponent did not extend to allegations of misconduct against particular police officers, rather that the claim was one of systemic negligence. 41 Accordingly I would propose the following orders: 1. Leave to appeal be granted. 2. Claimant to file a notice of appeal within fourteen days. 3. Appeal allowed in part. 4. The order of the learned trial judge varied as follows: The opponent has leave to file and serve the statement of claim within seven days provided: (a) that particular 5(i) is amended in accordance with the concession made in this Court and referred to above; (b) that particular 5(h) be deleted insofar as it contains an allegation that a particular police officer in contravention of his duty under the system did not do what the system held he should do; (c) that particulars 5(e) and 5(g) be amended by adding after each of them the words "provided it is understood that these particulars are directed to a claim of systemic negligence and not to the conduct of police officers unlawfully or inappropriately conducting themselves contrary to the system." 5. Appeal otherwise dismissed. 6. The claimant pay the opponent's costs of the motion before the learned trial judge and the opponent's costs in this Court. ********** Last Modified: 06/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.