State of New South Wales v Ridley [2004] NSWCA 68

New South Wales Court of Appeal

CITATION : State of New South Wales v Ridley [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; Cripps AJA at 8 DECISION : Leave to appeal granted - Decision of Rolfe DJ 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 : Merton Enterprises Pty Ltd v Nelson (1988) 3 NSWLR 454 CLAIMANT State of New South Wales PARTIES : OPPONENT Robert Cecil Ridley

FILE NUMBER(S) : CA CA 40126/03 OPPONENT Mr J E Maconachie QC with Mr P Sternberg COUNSEL : CLAIMANT Ms S Norton SC with Mr P Lander

Mr R J Grady for Commissioner of NSW Police OPPONENT SOLICITORS : I V Knight, Crown Solicitor CLAIMANT Philip Sim & Associates

LOWER COURT District Court JURISDICTION : LOWER COURT 11296/01 FILE NUMBER(S) : LOWER COURT Rolfe DCJ JUDICIAL OFFICER :

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

Giles JA Ipp JA Cripps AJA Thursday 18 March 2004

STATE OF NEW SOUTH WALES v ROBERT CECIL RIDLEY JUDGMENT

1 GILES JA: I have had the advantage of reading the reasons of Cripps AJA in draft. They enable me to be brief in stating why I agree with the orders his Honour proposes. 2 His Honour has explained that it was necessary for the opponent 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 the opponent's cause of action accrued prior to 13 November 1998. Staying with that assumption, Rolfe DCJ was in error in finding that the opponent was not aware of the extent of his personal injury (s 60I(1)(a)(ii)) until he read Dr Adams' report on 25 June 2001, because Dr Adams' report did not deal with the extent of his injury, but the judge did not address whether the opponent 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 the opponent'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. The opponent'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. The opponent'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 the opponent to continue his proceedings and seek to prove that he suffered the psychiatric disorder after 13 November 1998. The opponent indicated a wish to do so. As is apparent from the opponent's evidence and the report of Dr Wright to which Cripps AJA 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 Wright's 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 the opponent'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 the opponent 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 Cripps AJA should be made. 7 IPP JA: I agree with Giles JA and Cripps AJA 8 CRIPPS AJA: This is an application for leave to appeal a decision of Rolfe DCJ published on 14 April 2003 in which his Honour ordered that the limitation period for the cause of action pleaded in the opponent's Statement of Claim dated 13 November 2001 be extended up to and including 1 February 2002. 9 In his Statement of Claim the opponent 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 the opponent 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 Before Rolfe DCJ it appeared to be accepted that the opponent 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 Crown, apparently, indicated that it would plead that the opponent'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 the opponent 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: