New South Wales Court of Appeal CITATION: State of New South Wales v Heins [2005] NSWCA 258 HEARING DATE(S): 24 March 2005 JUDGMENT DATE: 5 August 2005 JUDGMENT OF: Handley JA at 1; Bryson JA at 33 DECISION: 1. Appeal allowed with costs.; 2. Order of Garling DCJ of 24 June 2004 set aside except as to costs.; 3. Leave to the plaintiff to file a further amended statement of claim in the form lodged with this Court on 12 April 2005 deleting the parts disallowed by this Court.; 4. Leave to the plaintiff to amend the further amended statement of claim lodged with this Court within 28 days by filing and serving a statement of claim in conformity with the reasons and orders of this Court.; 5. Extend the limitation periods for the causes of action pleaded in the further amended statement of claim lodged with this Court on 12 April 2005 to 6 June 2003.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS: LIMITATION OF ACTIONS - extension of limitation period - amendment of statement of claim to limit claim to later period - amendment must prevent reliance on earlier acts or omissions - amendment cured prejudice - D LEGISLATION CITED: Limitation Act 1969 Brodie v Singleton Shire Council (2001) 206 CLR 512 CASES CITED: Hill v Chief Constable of West Yorkshire [1989] AC 53 State of New South Wales (Claimant) PARTIES: James Sydney Heins (Opponent) FILE NUMBER(S): CA 40599 of 2004 J Maconachie QC/D Mallon (Claimant) COUNSEL: A G Melick SC/K Earl (Opponent) I V Knight, Crown Solicitor (Claimant) SOLICITORS: Baker & Edmunds (Opponent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2496 of 2003 LOWER COURT JUDICIAL OFFICER: Garling DCJ - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40599 of 2004 HANDLEY JA BRYSON JA 5 AUGUST 2005 STATE OF NEW SOUTH WALES v JAMES SYDNEY HEINS CATCHWORDS LIMITATION OF ACTIONS – extension of limitation period – amendment of statement of claim to limit claim to later period – amendment must prevent reliance on earlier acts or omissions – amendment cured prejudice FACTS The appellant was sued by the respondent, a former police officer, for injuries allegedly caused by its negligence during his service between October 1986 and February 2000 as a member of the New South Wales Police Service. The statement of claim was filed out of time. The appellant opposed an extension of the limitation periods on the ground of lapse of time, lack of records and the death of potential witnesses. The District Court judge held that an amendment restricting the plaintiff's claim to injuries suffered after 1 January 1996 cured any prejudice, and he extended the limitation periods to the date the statement of claim was filed. The appellant appealed by leave. HELD: (1) The judge erred in finding that the amendment cured any prejudice to the defendant; (2) He also failed to properly consider that the statement of claim itself was prejudicial and embarrassing because it did not properly plead the plaintiff's case and did not restrict the plaintiff to the proof of acts and omissions after 1 January 1996; (3) A further amended statement of claim limiting the plaintiff's case to acts and omissions on and after 1 January 1996 would protect the appellant from any actual or presumed prejudice it would suffer if the plaintiff could rely on earlier events; (4) Subject to the statement of claim being amended the extension of the limitation periods would not cause prejudice to the appellant. ORDERS 1. Appeal allowed with costs. 2. Order of Garling DCJ of 24 June 2004 set aside except as to costs. 3. Leave to the plaintiff to file a further amended statement of claim in the form lodged with this Court on 12 April 2005 deleting the parts disallowed by this Court. 4. Leave to the plaintiff to amend the further amended statement of claim lodged with this Court within 28 days by filing and serving a statement of claim in conformity with the reasons and orders of this Court. 5. Extend the limitation periods for the causes of action pleaded in the further amended statement of claim lodged with this Court on 12 April 2005 to 6 June 2003. 6. The respondent is to have a certificate under the Suitors' Fund Act 1951. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40599 of 2004 HANDLEY JA BRYSON JA 5 AUGUST 2005 STATE OF NEW SOUTH WALES v JAMES SYDNEY HEINS Judgment 1 HANDLEY JA: This is a summons for leave to appeal from the decision of Garling DCJ of 24 June 2004 extending the limitation period for the opponent's causes of action until 6 June 2003. The order was made pursuant to s 60C of the Limitation Act 1969 and the extension was granted until the date the plaintiff's statement of claim was filed. 2 The plaintiff served as a member of the New South Wales Police from October 1986 until he was discharged on medical grounds on 7 March 2002. He last performed normal police duties on 21 February 2000. He reached the rank of Senior Constable. 3 The statement of claim as filed alleged (para 4) that the plaintiff had performed "general and plain clothes duties and was involved in a number of stressful and hazardous incidents including repetitive incidents in which he was exposed to cumulative distress and trauma whereby the plaintiff became ill and was … injured". Paragraph 6 alleged that the plaintiff's loss and damage were caused by negligence for which the State was responsible. The particulars of negligence in cl 7 alleged that the police service, by its officers servants and agents was guilty of negligence in that it: "(a) Failed to observe that the Plaintiff was in position of peril in the circumstances. (b) Exposed the Plaintiff to a risk of injury which could have been avoided by reasonable care. (c) Failed to implement and/or properly and/or adequately implement measures to protect the Plaintiff from injury as a result of his work and its pressures. (d) Failed to educate and warn the Plaintiff of the possible adverse effects of and symptoms of illness from repeated exposure to trauma involving stress in the workplace and performance of his work. (e) Failed to provide adequate support staff with medical experience including counselling and welfare support for the Plaintiff in circumstances of the type and amount of work performed and the trauma and stresses associated therewith. (f) Failed to provide adequate debriefing and support to the Plaintiff to assist the Plaintiff to avoid risk of injury in performance of his duties." 4 The statement of claim was amended during the hearing before the primary Judge to add the words "Since 1 January 1996" to para 4. Thus the statement of claim that was the subject of the extension contained an allegation of negligence extending over the whole of the plaintiff's police service from October 1986 until February 2000 with an allegation of injury from 1 January 1996 onwards. 5 The applicable limitation period was three years fixed by s 18A(2) of the Limitation Act and without an extension the statement of claim as filed did not cover any causes of action which accrued before the end of the plaintiff's active police service on 21 February 2000. The extension as granted covered causes of action dating from 1 January 1996 based on negligence dating from October 1986. 6 The Judge said that he based his decision on the statement of claim as amended during the hearing before him (judgment p 2). His understanding of the scope of the evidence that would be admissible under the amended statement of claim was as follows (judgment pp 2-3): "It is the plaintiff's intention, as I understand it, … to lead evidence of the plaintiff's history during his time in the New South Wales Police Force leading up to 1 January 1996. The basis of leading that evidence, as I understand it, is two-fold: one, is to show that during that time there was [no] system in operation and to negative any allegation that there was … a proper system … and secondly, to show that the defendant knew or should have known that the plaintiff worked under these sorts of conditions and knew or should have known the plaintiff's psychological state and, therefore, could not allege that it was not foreseeable to the defendant that a police officer, such as the plaintiff, as a result of those matters which occurred after 1 January 1996, would not be vulnerable to the type of injuries that occurred." 7 He returned to this topic later (judgment p 8): "I have to take into account though that that evidence is evidence which relates to the history and is led for a very limited purpose as I understand it, that is the purpose I set out earlier. The plaintiff would not set out the prove that as a result of the incidents the defendant was negligent, and the defendant would not have to negative such a claim, and indeed I believe the plaintiff has deliberately removed those from the Court's consideration." 8 Mr Melick SC, for the opponent, who appeared below, gave this explanation of the effect of the statement of claim as amended (T 18) in the following exchange: "… we plead an injury as a result of the negligent act of the [defendant] between 1 January 1996 and 21 [February] 2000. The particulars of negligence relating to that period are set out at para 7. HANDLEY JA: Mr Melick if the injury occurred on 1 January 1996 the negligence must have occurred before then. MELICK: Good point your Honour. We however are restricted by our pleading to negligence as at 1 January '96 and there from. HANDLEY JA: Where does that appear? MELICK: Well that's inferential from the particulars of negligence that have been pleaded. HANDLEY JA: But '96 is not in there. That's my point." 9 The plaintiff's chronology annexed to his affidavit of 26 July 2003 recorded major stressful incidents during his police service in November 1986, twice in 1988, once late in 1988 or early in 1989, 1993, 1994 and the mid 1990s all before 1 January 1996. The Judge considered that the amendment to para 4 to add 1 January 1996 cured any claim of prejudice by the defendant based on its lack of records for the earlier period and the death of two of the plaintiff's superiors Sergeant Blanch and Sergeant Marks. He acknowledged that the defendant had a persuasive case of actual prejudice in relation to the earlier period and added (judgment p 8): "… it may be if there were actual claims of prejudice arising out of those incidents that there would be actual prejudice. But I do not think that the prejudice the way they are to be used is of such an extent that it would cause me not to grant leave." 10 With respect the defendant's claims of prejudice based on events prior to 1 January 1996 could not be disposed of in this way. Counsel for the plaintiff made it clear that evidence would be led of the plaintiff's exposure to stressful incidents between 1986 and 1994 over a period between 9 and 17 years before the statement of claim was filed. This would be done in order to prove that there was no proper system then in place to protect the mental health of persons like the plaintiff, to show that the defendant knew or should have known that the plaintiff worked under these conditions, knew or should have known of his mental state, and should have foreseen that he was vulnerable. 11 The Judge's repeated references to what the defendant "should have known" before 1 January 1996 and "should have foreseen" on and from that date demonstrate that the allegations of negligence open to the plaintiff on this statement of claim were not confined to acts or omissions occurring after that date. This is confirmed by the absence of any corresponding amendments to paras 6-7 and further confirmed by Mr Melick's statement that the statement of claim was intended to cover causes of action which accrued on and after that day. 12 The Judge's statement that the defendant knew or should have known of the plaintiff's mental state before 1 January 1996 raises particular difficulties. If this of any significance at all it must mean that by that time the wear and tear of police service affected the plaintiff so as to make him vulnerable to further stress, at least in the absence of proper arrangements to safeguard his mental health, and that this was or should have been apparent to his superiors. 13 The plaintiff knew the nature of the stresses to which he had been exposed between 1986 and 1994 and their effect on him. His fellow police officers who were also involved in these incidents would have been aware of the nature of the stresses they created but it does not follow that this information was available to his superiors. In the absence of an appropriate system and procedures this information may only have been fully known to the plaintiff. In these circumstances proof that the defendant knew or should have known of the plaintiff's mental state would involve either proving particular occasions when his superiors were informed of his problems by other police officers or particular occasions when they personally observed his problems for themselves. These occasions have not been pleaded or particularised and these allegations would be open on the present statement of claim. 14 In these circumstances the defendant's claims of actual prejudice could not be dismissed as they were by the primary Judge. The defendant does not know the case it will have to meet on this statement of claim in respect of the plaintiff's service prior to 1 January 1996 and its strong case of actual prejudice in respect of this period remained unanswered. 15 The statement of claim as amended would be prejudicial and embarrassing even if the plaintiff did not need an extension of the limitation period. The so-called particulars of negligence in para 7 include vague allegations such as (a) "failed to observe that the plaintiff was in a position of peril", (b) "exposed the plaintiff to a risk of injury", (c) "failed to implement … measures to protect the plaintiff from injury", and (f) "failed to provide adequate debriefing and support". It is not clear whether the "peril" or "risk" refers to the physical dangers to which the plaintiff was exposed in the course of his duties or the "peril" or "risk" of mental injury or both. Paragraph (b) alleges that the risk could have been avoided by "reasonable care" and para (c) alleges a failure to implement "measures to protect the plaintiff" but those paragraphs contain no indication of what reasonable care required or the measures that should have been taken. The "adequate support" that, it is said, should have been provided (par (f)) is not identified. 16 The allegation in para (e) that the Police Service failed to provide adequate staff for counselling and welfare support is not supported by an allegation that the plaintiff sought such support but was unable to obtain it or would have done so if a proper system had been in place. In this respect the statement of claim failed to plead material facts which disclosed a relevant case of negligence. 17 The plaintiff's case may be based on the failure of the Police Service to establish and maintain an appropriate system for monitoring and protecting the mental health of police officers which could and would have avoided this injury to the plaintiff. However it may also include independent failures on the part of his colleagues and superiors to notice his problems and take appropriate action to see that he got help. The statement of claim should have been further amended to make this clear one way or another. 18 The Judge therefore erred in concluding that the statement of claim, as amended, was an answer to the defendant's case on prejudice. In particular he erred in failing to take into consideration the nature and extent of the evidence that the statement of claim would permit the plaintiff to call at the trial as to events prior to 1 January 1996 and the important and potentially prejudicial effect of such evidence. He also failed to take into consideration the fact that the statement of claim did not properly plead the case that the plaintiff then intended to prove and that this alone was likely to prevent the defendant obtaining a fair trial. The Judge's exercise of discretion therefore miscarried and this Court must intervene and re-exercise the discretion. At the end of the oral argument the Court granted leave to appeal, and directed that a notice of appeal be filed within 14 days. 19 During argument the Court had drawn attention to various deficiencies in the statement of claim and Mr Melick offered (T 42) to lodge and serve a redrafted statement of claim within 21 days to address these issues. The Court then added an order to this effect. A draft further amended statement of claim was lodged on 12 April. It limits the plaintiff's case of negligence to acts and omissions on and after 1 January 1996 and would not allow evidence to be called relating to critical incidents or stressful events prior to the date. It is therefore a considerable improvement on its predecessor. 20 However the particulars of negligence in para 7 still create difficulties. Paragraph (a) alleges negligence in that the defendant failed to observe that the plaintiff was in "a position of peril". In context this probably means that his mental health was at risk but this is not clear. Paragraph (b) alleges negligence in exposing the plaintiff to "a risk of injury" which could have been avoided by reasonable care. This may also be limited to a risk of injury to his mental health but it may include the risk of physical injury during police duties and an allegation that the plaintiff should not have been asked to perform stressful work, either at all, or without more support. 21 Moreover the particular does not identify what it is alleged that reasonable care required the defendant to do to avoid the risk of injury to the plaintiff, a matter Bryson JA referred to during argument (T 24). Paragraph (c)(vii) alleges that the defendant "failed to provide adequate support staff with medical experience including counselling and welfare support for the plaintiff" and sub-para (viii) alleged that it failed to provide adequate debriefing and support to help the plaintiff "avoid risk of injury in performance of his duties". 22 The difficulty with these particulars is that they do not disclose whether the plaintiff's case is that counselling and welfare support should have been offered to the plaintiff because he was observed to need help or whether they should simply have been available to him on request if he wanted to use them. If the allegation is of the second kind, or includes such an allegation, there is no allegation that the plaintiff would have used these services had they been available, a matter which was also referred to by Bryson JA during argument (T 22). 23 Particular (viii) does not identify the "support" that the defendant should have provided to the plaintiff or the "injury" to which he was exposed in the performance of his duties. Presumably the particular is intended to refer to mental injury but this should be made clear. The same may be said of "injury" in the opening lines of particular (c). 24 Particular (iv) creates further difficulties. This alleges negligence in failing to "establish operation policies which are stress reducing including sufficient manning levels". This appears to invite the Court to pass judgment on the "operation policies" of the Police Service to reduce the stress to which police officers are exposed when stress is an inherent feature of police work. It also invites the Court to pass judgment on the allocation of resources within the Police Service and find, for example, that the work on the Central Coast required additional police to be transferred there from other parts of the State for the purpose of reducing stress on the plaintiff and his colleagues. In my judgment the issues raised by this particular are not justiciable and it should not be allowed. See Hill v Chief Constable of West Yorkshire [1989] AC 53, 63-5; and Brodie v Singleton Shire Council (2001) 206 CLR 512, 528-9, 580-1. 25 I would therefore disallow paras 7(a) and (b), the word "injury" from the second line of para (c) and sub-paras (iv), (vii) and (viii) with liberty to replead those allegations other than para (c)(iv). 26 The proposed amendments to the statement of claim restrict the plaintiff's case to events occurring on and after 1 January 1996 and will protect the defendant from the actual prejudice it would have suffered if the plaintiff had been permitted to rely on earlier events. The defendant's remaining case on actual prejudice is based on the death of Senior Sergeant Stuart Marks on 13 April 2001. 27 The plaintiff's chronology recorded stressful events which remain relevant that included an internal inquiry during 1996 into his role in the investigation of an alleged fraud by the daughter of a policeman which continued until mid-1999. In June 1997 he and a colleague arrested a suspected drug dealer at the Holiday Crown Inn at Terrigal and when searched he was found to be carrying a fully loaded .32 calibre Browning semi-automatic handgun. In late 1997 the plaintiff with three other police officers were confronted by approximately 2000 youths in the vicinity of Caroline Park Road, Avoca Beach. A riot broke out during which the plaintiff was surrounded, separated from his colleagues, and assaulted. 28 In February 1998 the plaintiff with Detective Sergeant Quinn questioned a suspect regarding a missing elderly lady in Queensland and the plaintiff heard a graphic description from the suspect of how he shot the lady at point blank range and disposed of her body and the murder weapon. In August that year the plaintiff was involved in an investigation into the murder of a member of the Rebel Outlaw Motorcycle gang in a volatile atmosphere and a police search recovered firearms. On Melbourne Cup day that year the plaintiff was involved in a siege at Wyoming during which a Mr Todd Hayes chained his two year old son to himself and made threats over several hours before setting fire to the premises which triggered a dramatic intervention and rescue by the State Protection Group which did not include the plaintiff. 29 On 9 November 1998 the plaintiff attended a suicide by hanging of a 16 year old girl following sexual assaults by her stepfather. The plaintiff noted a striking similarity between the deceased and his own daughter. Later that year he attended two further sieges, one at Niagara Park and one at Bateau Bay. 30 These events occurred while the plaintiff was stationed at Gosford. There is evidence that Senior Sergeant Marks was the plaintiff's supervisor at Gosford during 1997 (W/B 235). There is also evidence, in the form of a statement dated 9 August 2001 by Mr Neal Carr, a retired police officer, that the plaintiff was transferred to the Brisbane Waters area theft squad at the end of 1997 and came under the command of Detective Sergeant Fowler (314) and after March 1998 he was a member of the local drug squad under the command of Detective Senior Constable Carr (315). There is also a statement by Detective Senior Constable Burns which covers the same period (321 & foll). 31 There is no suggestion that records are no longer available relating to the stressful events the plaintiff identified between 1996 and 1998. While Sergent Marks has since died there is no evidence that the plaintiff's other superiors are not still available. The stressful events in 1997 which have been particularised also involved other police officers and there is no suggestion that these are not available. We were not referred to any of the particulars supplied by the plaintiff which showed that allegations have been made against Sergeant Marks which only he could have answered. 32 In these circumstances I have been persuaded that the extension sought will not occasion actual prejudice to the State, that there is no reason for inferring presumptive prejudice and that a fair trial is still possible. Re-exercising the discretion, I have concluded that the respondent should have an extension of the limitation period to the filing of the original statement of claim on 6 June 2003 subject to the amendments recorded in the draft further amended statement of claim submitted on 12 April 2005 and subject to the orders of this Court. The respondent must pay the appellant's costs of the appeal. The following orders should be made: 1. Appeal allowed with costs. 2. Order of Garling DCJ of 24 June 2004 set aside except as to costs. 3. Leave to the plaintiff to file a further amended statement of claim in the form lodged with this Court on 12 April 2005 deleting the parts disallowed by this Court. 4. Leave to the plaintiff to amend the further amended statement of claim lodged with this Court within 28 days by filing and serving a statement of claim in conformity with the reasons and orders of this Court. 5. Extend the limitation periods for the causes of action pleaded in the further amended statement of claim lodged with this Court on 12 April 2005 to 6 June 2003. 6. The respondent is to have a certificate under the Suitors' Fund Act 1951. 33 BRYSON JA: In the Statement of Claim in the form it will take as amended under our orders, there is no allegation of actual knowledge of any specific disability or psychological state of the plaintiff, nor of any acts or events which show that the defendant should have had such knowledge. (The same was true for the earlier forms of the Statement of Claim.) If there had been an allegation of actual or constructive knowledge I would have regarded the allegation as important for the decision whether to grant the extension: but there was not. It should not be thought that I would have countenanced the grant of an extension for the plaintiff to base his case on any other allegations than those which our orders allow. 34 I agree with Handley JA. ********** 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.