New South Wales Court of Appeal CITATION : State of New South Wales v Young [2004] NSWCA 204 HEARING DATE(S) : 15/06/2004 JUDGMENT DATE : 15 June 2004 JUDGMENT OF : Handley JA at 1; Cripps AJA at 34 DECISION : (1) Leave to appeal granted.; (2) The claimant to file a notice of appeal within fourteen days.; (3) Appeal dismissed with costs. CATCHWORDS : LIMITATION OF ACTIONS - extension of limitation period - Limitation Act - negligence claim by former police officer based on systemic and operational breaches of duty - no prejudice in respect of alleged systemic breaches - prejudice in respect of operational breaches - extension upheld confined to systemic breaches - D LEGISLATION CITED : Limitation Act 1969, s 60I(1)(a)(ii) and (iii) CRA Ltd v Martignano (1996) 39 NSWLR 1 CASES CITED : Dedousis v Water Board (1994) 181 CLR 171 Drayton Coal Pty Ltd v Drain (unreported, 22 August 1995, NSWCA) Harris v Commercial Minerals Ltd (1996) 186 CLR 1 PARTIES : State of New South Wales (Claimant) Ian Joseph Young (Opponent) FILE NUMBER(S) : CA 40801/03 COUNSEL : P Menzies QC/M Spartalis (Claimant) R J Burbidge QC/P J Woods (Opponent) SOLICITORS : I V Knight, Crown Solicitor (Claimant) Trenches (Opponent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 10123/01 (7913/02) FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40801/03 HANDLEY JA CRIPPS AJA 15 JUNE 2004 STATE OF NEW SOUTH WALES v IAN JOSEPH YOUNG Judgment 1 HANDLEY JA: The Court has before it a summons by the State for leave to appeal from a decision of Phegan DCJ of 29 August 2003. The Judge granted an extension of the limitation period to enable Mr Ian Young to bring proceedings out of time against the State, claiming damages for negligence occasioning him personal injuries. Mr Young having been appointed a police officer prior to legislation taking effect in 1988, his application was properly brought under the Limitation Act 1969. 2 Mr Young was assigned to detective duties on the north coast of New South Wales in relation to an investigation into the illegal cultivation and distribution of drugs. These investigations culminated in a number of arrests followed by criminal proceedings, initially by way of committal and then by trial on indictment. During this period a number of threats were conveyed directly or indirectly to Mr Young involving the safety of himself and his family, which caused him great concern. 3 These concerns and alleged acts and omissions on the part of the Police Department and a number of senior officers culminated in him becoming seriously ill with hypertension, stress and, in due course, post traumatic stress disorder. He collapsed while on duty on 24 October 1995 and ceased performing duties after that date otherwise than in connection with the criminal proceedings. He was discharged from the Police Force medically unfit at some date in October or November 1997 with a finding that he had been hurt on duty, which carried an entitlement to a pension. 4 Proceedings were commenced by statement of claim on 8 October 2001, although the application for an extension of the limitation period was not filed until the following year. 5 The statement of claim pleads the stressful nature of the plaintiff's duties in connection with the drug operation known as Operation Icarus, the receipt of threats of injury to himself and his family, and the harassment and intimidation from superior officers who should have been supporting him. 6 The statement of claim alleges not only lack of support from superior officers but active harassment, intimidation and adverse treatment, in particular by Chief Superintendent Walsh, who was the plaintiff's superior officer with responsibilities for a substantial area of the north coast of the State. 7 The statement of claim also alleges failures on the part of the police welfare branch and the medical department, and the failure of the witness protection unit to provide proper support in the light of the threats that the plaintiff had received. 8 The judge in a lengthy and careful judgment found that the plaintiff had brought himself within s 60I(1)(a)(ii) and (iii) of the Limitation Act in that he was not aware of the extent of his personal injury until he received advice from Mr Peters, a professional psychologist, in April 2001. I will return to this subject further in a moment. His Honour also held that the plaintiff at the relevant time was not aware of the connection between the personal injury he had suffered and relevant acts or omissions on the part of the Police Department. 9 Finally in this respect, his Honour found that the plaintiff did not have constructive notice of the matters of which he was in fact unaware at any relevant time. Thus the gateways to the exercise of the discretion under s 60G of the Act were satisfied, and his Honour exercised the discretion in favour of the plaintiff, having found that the State would not suffer significant prejudice. 10 The issue under s 60I(1)(a)(ii) is whether the plaintiff was aware of the extent of his personal injury prior to his consultation with Mr Peters. His Honour found that the plaintiff was aware prior to his discharge that he had been diagnosed as suffering from post traumatic stress disorder. However he said, and was not challenged on this, that he did not seek any clarification from his medical advisers as to the implications for him of this diagnosis. 11 After leaving the Police Force he was able to obtain remunerative employment but lost his job in Taree in February 2001 as a result of his position becoming redundant. 12 He says, and has been accepted on this question, that until he consulted Mr Peters he was not aware that his post traumatic stress disorder was a long term condition which would be with him indefinitely and would impact on his employability in civilian life. There is no basis on which this Court could interfere with that finding. 13 Section 60I(1)(a)(ii) distinguishes between knowledge of the nature of a personal injury and knowledge of its extent, and the decisions, in particular Harris v Commercial Minerals Ltd (1996) 186 CLR 1 and CRA Ltd v Martignano (1996) 39 NSWLR 1, confirm that a person who is aware that he or she is suffering from a disease may not be aware of its future course. The extent of that ignorance may support a finding that the plaintiff was not aware of the extent of the personal injury. 14 The courts have emphasised that it is not necessary that an applicant for an extension should foresee the exact course the disease might take or be aware of all its pathological and physiological incidents. It would be natural for a person in the position of this plaintiff to believe that following his withdrawal from the Police Force and the stresses which his service had attracted, his condition would in due course resolve and he would be able to lead a normal life. He found out as a result of his consultation with Mr Peters in April 2001 that this was not the case. 15 In these circumstances I am satisfied that the primary judge was correct in finding that this particular condition in s 60I was satisfied so as to enliven the discretion to grant an extension of the limitation period. 16 The judge also found that the plaintiff was not aware at the relevant time of the connection between his post traumatic stress disorder, and the defendant's acts or omissions. His Honour acknowledged that it was not necessary for him to undertake this inquiry but he did so. The relevant authorities are Dedousis v Water Board (1994) 181 CLR 171 and Drayton Coal Pty Ltd v Drain, an unreported decision of this Court of 22 August 1995. 17 Ignorance of the legal consequences of acts and omissions on the part of the defendant forms no part of the enquiry and is not directly relevant. The paragraph is concerned solely with practical matters. For that reason it seems to me with respect that the primary judge fell into error in deciding that this particular paragraph was satisfied. 18 The plaintiff complains in his statement of claim and in his evidence about his harassment from higher authority in the Police Force and lack of support in the difficult situation in which he found himself. He was aware of the events as they occurred and he was aware of their effect on him in creating and maintaining high levels of stress. The plaintiff sought help from the police welfare branch and from the police medical department, and got some help but none that was of any practical assistance. The employer had taken steps to provide these facilities for its officers but not at a level which could help the plaintiff in his difficult situation. The plaintiff was aware of the existence of these facilities, he had resort to them and was aware that they were not able or willing to provide effective help. There seems to be in this respect no lack of awareness on his part, and again he was aware of the effect of these failures in increasing and maintaining his high levels of stress. 19 He was aware that there was a witness protection unit. He approached it seeking help for the protection of himself and his family. He was told that they could not help him. Here again the plaintiff was well aware of any failures on the part of the Police Department, if such they were, and their effect in enhancing and maintaining his high levels of stress. In these circumstances it seems to me that the plaintiff's ignorance went only to the availability of a legal remedy for his injury rather than to the specific measures which the Department could have used to deal with the situation in which he found himself. Accordingly I would set aside the judge's finding that the requirements of sub-para (iii) were satisfied in this case. 20 The next question that falls for consideration is whether although the plaintiff was not aware prior to April 2001 that his post traumatic stress disorder was chronic and likely to persist in the long term, nevertheless he should have been aware of that at an earlier point of time so as to be disqualified from relying on the finding under sub-para (ii). This matter does not appear to have been investigated during the hearing below. The evidence does not disclose the medical treatment, if any, the plaintiff was receiving after his discharge from the Police Force, and there is no evidence that the plaintiff was subjectively aware that his condition was either not getting better or was deteriorating. 21 In the absence of some investigation of these matters at the hearing, it is not open to the claimant in this Court to seek a positive finding that the plaintiff should have been aware of the long-term nature of his condition prior to April 2001. 22 It is not clear whether an erroneous finding that the requirements of sub-para (iii) were satisfied should reopen the exercise of the discretion, but it is not necessary to decide that in the present case because when his Honour came to consider the question of prejudice he said "the onus of proving such prejudice is on the respondent" ie the State of New South Wales. 23 With respect, his Honour there fell into error. The ultimate onus of proving all issues in an application such as this is on the applicant, although in accordance with established authority it is clear that there may be an evidentiary onus on a respondent to introduce evidence relevant to the question of actual as opposed to presumed prejudice. The combination of those two matters in my judgment warrants this Court setting aside the exercise of the discretion by the learned primary judge and re-exercising the discretion for itself. 24 The question of prejudice in this case is not an easy one. Apart from presumed prejudice, the State relies on the evidence of Ms Tate, an officer from the archives section of the Police Service, who said that she had not been able to locate any duty books or notebooks in the police records relating to the opponent, the officer who worked with him on Operation Icarus, a Mr Athol Edmonds or for Inspector Beck, Senior Sergeant Lambert or Chief Superintendent Walsh, for any of the relevant periods. Such records should be maintained by police officers, although it is not clear whether duty books have to be maintained below the rank of sergeant. These records are only kept for five years, and in the present case all such records have been destroyed. 25 Undoubtedly this is a potential matter of prejudice, but there are difficulties in assessing the extent of this prejudice in the light of other evidence. It is common ground that police notebooks are used for recording material which may become the subject of evidence in court proceedings and to assist in the investigation of known or suspected crimes. It seems that the function of duty books is to record matters of an administrative nature which would not normally become the subject of evidence in court proceedings. 26 The plaintiff's case involves not only alleged systemic failures which would not be addressed in any way in police notebooks or duty books had they survived, but also particular incidents during his service involving conversations and other acts or omissions on the part of senior police officers such as those previously identified. None of these conversations or incidents formed any direct part of any police investigation into known or suspected crime. They were matters within the service which did not directly involve outsiders, although of course the accused charged as a result of Operation Icarus were thought by the plaintiff to be behind some of the harassment that he received from superior officers because of suspected corruption links. There is therefore no reason to believe that any of the conversations or acts or omissions would be recorded in the police notebooks of any of the persons involved. For that reason there is no reason to think that the State will suffer any prejudice as a result of the loss of those notebooks. 27 The duty books are in a different category. The Court does not know what material should be entered into such books, and when, nor does it know whether all police officers had duty books during the relevant period. The evidence is silent on these matters and the Court has refused an application by Mr Menzies for an adjournment to enable these matters to be established if the Police Orders under which these notebooks are issued and supposed to be kept were capable of judicial notice under the Interpretation Act 1987 or otherwise. 28 It seems that the duty books are intended as a record of the times at which a police officer goes on duty and off duty, and the place where duties are being performed and perhaps some very general statement of the nature of those duties. Thus, as far as can be determined, the only possible relevance of the duty books to the present case, had they survived, would be to corroborate or contradict the presence of one or more of the relevant witnesses in some place at some particular time when a conversation is alleged to have taken place between them. The Court has no material from which it can form any assessment of the reality of this alleged prejudice. 29 The plaintiff's affidavits go into considerable detail in terms of time, place, circumstance and person when dealing with the incidents relied upon during 1995 and 1996. An affidavit sworn by Inspector Matthew does not take issue with the dates or times alleged by the plaintiff. No affidavit has been put on by Chief Superintendent Walsh at all. The Court does not know whether there is going to be any dispute as to the physical whereabouts of the witnesses at the times deposed to by the plaintiff when certain conversations are alleged to have taken place. In these circumstances the proper conclusion seems to be that the supposed prejudice from loss of the duty books is entirely speculative and not such as to warrant refusal of an extension of the limitation period. 30 There remains of course the question of presumed prejudice. The critical events occurred between early September 1995 and late October, with less important events occurring thereafter while the plaintiff was generally not rendering full time service to the department. There is substantial evidence to indicate that these matters were the subject of contemporaneous investigation within the police service. 31 A statement by Inspector Matthews dated 11 February 1996 in evidence was provided to the workers' compensation branch. It dealt with the question whether the plaintiff's illness warranted him being classified as hurt on duty. It is evident from other matters that the plaintiff's complaints were investigated by Task Force Yandee within the department during this period. 32 There remains, as I said, the presumption of prejudice, but I have not been persuaded, in the light of the contemporary investigations within the Department, that this should disentitle the opponent to relief by way of an extension of the limitation period. 33 Accordingly I would propose that the following orders be made: (1) Leave to appeal granted. (2) The claimant to file a notice of appeal within fourteen days. (3) Appeal dismissed with costs. 34 CRIPPS AJA: I agree with the reasons of Handley JA and with the orders he proposes. ********** Last Modified: 06/21/2004 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.