New South Wales Court of Appeal CITATION: State of New South Wales v Bennie [2005] NSWCA 172 HEARING DATE(S): 18/03/05 JUDGMENT DATE: 23 May 2005 JUDGMENT OF: Giles JA at 1; Bryson JA at 2; Campbell AJA at 3 DECISION: 1. Notice of Motion of 19 November 2002 amended by adding the words "wrongful arrest, wrongful imprisonmen and breach of statutory duty" before the word "negligence" in both paragraphs 1 and 2 thereof; 2. Note the agreement of the parties that the decision of Judge Phelan of 10 April 2004 is to be taken as a decision in relation to the Notice of Motion as so amended; 3. Leave to appeal against the order made under s 60G of the Limitation Act 1969 and the order reserving the costs of the Notice of Motion refused with costs; 4. Grant leave to the appellant to file a Notice of Grounds of Defence and the respondent to file a Reply in terms of the draft documents handed up in Court on 18 March 2005; 5. Order that the issue whether or not the respondent's action was statute barred be determined as a separate issue in the proceedings and in advance of the action; 6. Note the agreement of the parties that the decision of Judge Phelan of 15 April 2004 in respect of the application of s 52 of the Limitation Act 1969 be taken as a decision upon the separate issue in favour of the respondent; 7. Grant leave to appeal against the decision on the separate issue; 8. A Notice of Appeal to be filed within seven days; 9. Appeal dismissed with costs. CATCHWORDS: Limitation Act 1969 - Finding of "person under a disability" - appeal dismissed - Extension of time - Leave to appeal refused - Practice and Procedure - Pleading of Limitation Act 1969 - Order for trial of separate issue. LEGISLATION CITED: Limitation Act 1969 Kotulski v Attard (1981) 1 NSWLR 115 CASES CITED: "C" v CSIRO (Master Harrison 19 September 1997 unreported) APPELLANT State of New South Wales PARTIES: RESPONDENT Robert Maurice Bennie FILE NUMBER(S): CA 40328/02 Mr P Menzies QC with M Windsor - Appellant COUNSEL: Mr R J Burbidge QC with G M Radburn - Respondent APPELLANT Crown Solicitor SOLICITORS: RESPONDENT W J Grace & Co LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 239/01 LOWER COURT JUDICIAL OFFICER: Phelan DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40328/02 DC 239/01 GILES JA BRYSON JA M W CAMPBELL AJA Monday 23 May 2005 STATE OF NEW SOUTH WALES v ROBERT MAURICE BENNIE Judgment 1 GILES JA: I agree with M W Campbell AJA 2 BRYSON JA I agree with M W Campbell AJA 3 M W CAMPBELL AJA: Introduction This application for leave was opened as an application for leave to appeal against orders made by Judge Phelan of the District Court extending the time for Robert Bennie (the respondent) to commence proceedings against State of New South Wales (the appellant) in respect of a number of causes of action. 4 The notice of motion before the Judge sought orders as follows: "1. the limitation period, for the bringing of this cause of action in these proceedings arising out of the negligence and/or breach of contract and/or assault committed by the defendant, be extended so as to expire three years after the date of (sic) which the plaintiff ceased to be under a disability, pursuant to section 52 of the Limitation Act 1969; or alternatively 2. the limitation period, for the bringing of this cause of action in these proceedings arising out of the negligence and/or breach of contract and/or assault committed by the defendant, be extended for such period as the Court determines, pursuant to section 60G of the Limitation Act 1969." 5 Although the orders were sought "alternatively" Judge Phelan expressed himself, as extending time under both provisions of the Limitation Act 1969 (the Act). 6 Leaving aside for the moment the question whether an extension of time is the appropriate order where it is held that s 52 applies, it was common ground at the hearing of the appeal that if s 52 does provide relief to the respondent an extension of time pursuant to s 60G would be unnecessary. 7 Should the orders I shall later propose be made the respondent will retain his entitlement to relief under s 52, albeit in different form. On that basis there is no utility in granting leave to appeal in respect of the order made under s 60G and I shall propose that leave in respect of that order be refused. 8 It is convenient to note the summary of the course of the proceedings set out by Judge Phelan at the commencement of his judgment. "The plaintiff issued a statement of claim against the defendant on 28 August 2001, although it was filed on 30 August according to the notation on the statement of claim. He alleged, as a police officer in the New South Wales Police Service, that he had been the object of victimization following a complaint he had made at Menindee in 1991, claiming that an officer at that station had been guilty of criminal matters and had acted in a way likely to bring disrepute to the police force. He claimed that as a result of that victimization he had been harassed, ostracised, wrongly arrested, assaulted and falsely imprisoned. There were counts as well for breach of contract and individual counts in relation to the wrongful arrest, false imprisonment and assault. Within the statement of claim there was an application for extension of time pursuant to s 11(3)(b)(i) of the Limitation Act , because of alleged disability and as well, a claim for an extension pursuant to s 60G of that Act. The defendant entered an appearance on 15 February 2002 and on 18 October of that year, filed a motion to strike out the statement of claim because the claim was outside the limitation period. On 20 November 2002 a motion as filed by the plaintiff seeking to extend time pursuant to s 52 and s 60G of the Limitation Act . The matter came on for hearing before me at Lismore." 9 It was upon this notice of motion that the Judge made the orders previously mentioned. It appears that the strike-out motion was not dealt with in any formal way. The relief under the Limitation Act in the statement of claim was, correctly, not the subject of any order. It would have been appropriate for that material to be struck out. The reference to s 11(3)(b)(i) rather than s 52 in the statement of claim was an error of no consequence. 10 Section 52 of the Act provides: "(1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. ……………" 11 "Disability" is defined in s 11(3) of the Act as follows: "11(3) For the purposes of this Act a person is under a disability: (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, ………….." 12 It will be observed that the "running of the limitation period" is suspended for the duration of the disability. No question of discretionary extension by leave arises. 13 The appropriate way for the issues thus raised by the Act to be determined is for the defendant to plead the Statute, the plaintiff to reply relying upon s 52 and, in due course, to seek to establish on the balance of probabilities that he or she was relevantly under a disability (See Kotulski v Attard [1981] 1 NSWLR 115). 14 It will often be desirable that such an issue be determined as a separate issue before the expense of the main trial is undertaken. That was the course followed in Kotulski and, had the procedure outlined been followed in this case, would have been appropriate in this matter. 15 The Court having raised these matters with Counsel it was agreed that the appellant would draft a notice of grounds of defence relying upon the Act, that the respondent would draft a reply asserting disability and that the parties would consent to an order for the separate trial of the resultant issue. I shall propose formal orders dealing with these procedural steps in due course. 16 It was also agreed that the decision of Judge Phelan in respect of the s 52 issue was to be taken as a decision in favour of the respondent on the separate issue. As I have indicated I do not consider that the challenge to that decision should succeed. 17 Before I set out my reasons for that view it is convenient to deal with the question of leave in relation to this aspect of the application. I consider that leave should be granted. 18 Subject to an extension of time under s 60G success by the appellant on the challenge to Judge Phelan's decision on the s 52 aspect would defeat the respondent's claim. The s 60G application raises additional and different issues to those here relevant. 19 A proposed ground of appeal which raised a point of principle was the contention that the Judge had erred in applying, as propounding the relevant test, the decision of Slattery J in Kotulski rather than the decision of Master Harrison in "C" v CSIRO unreported, 19 September 1997. Further, it was put that the Judge had erred in failing to give reasons for following the former decision. 20 As it happened, Mr Menzies of Queens Counsel, who appeared with Mr Windsor of Counsel for the appellant, did not rely upon these grounds. He accepted that the correct test was that propounded by Slattery J. I shall come to that test later, however, I should point out that Master Harrison had not been referred to the earlier decision. 21 Mr Burbidge of Queens Counsel, who appeared with Mr Radburn of Counsel and Mr P Woods of Counsel for the respondent, submitted that the point of principle having been abandoned it would be appropriate for leave to be refused. 22 I regard the appellant's arguments on other matters as barely tenable and there is much to be said for the view that refusal of leave would be the appropriate order. 23 However, if leave were refused the issue could be agitated again on a later appeal to this Court. The issue has been fully argued before Judge Phelan and again before this Court. I consider that, at least in the public interest, it should be finally dealt with, so far as this Court is concerned and I propose that leave be granted. The Primary Judgment 24 The Judge's account of "the background facts" can be summarised quite shortly. The respondent was born on 16 April 1957. He obtained his higher school certificate but did not take up the opportunity to attend University. In 1976 he joined the army and in 1983, having attained the rank of corporal, was discharged to join the New South Wales Police Service. He had a good record in the army. 25 The respondent's work assessments as a police constable were consistently high. He was transferred from a country posting to the City after he was convicted of assaulting "a town bully". That conviction was set aside on appeal. 26 The respondent suffered a number of disturbing incidents during his service in Sydney and sought a return to the country. In mid 1991 he was sent to a three man police station at Menindee. 27 At Menindee the respondent became concerned about the activities of a fellow officer "who he believed was carrying out illegal activities, as well as conducting himself so as to bring disrepute to the police force." 28 In late 1991 the respondent made written complaints to senior police who had assured him they would be kept confidential. This did not happen and the officer concerned was informed. 29 The Judge accepted that the complaints were not properly investigated and that trivial and/or manufactured complaints were then made against the respondent. These latter complaints were subsequently dismissed by the Ombudsman. 30 The Judge further accepted that "the plaintiff (respondent) was then ostracised, humiliated and vilified, becoming the target of conspiracy by police officers, including some at high level." 31 The judgment goes on: "In mid-December 1991, he was advised by senior police that he would be assessed by the police psychologist to determine his "viability" in a small police station. Later he was seen by Dr Milton, psychiatrist and informed afterwards, that the doctor had advised that he should not do country work again. Dr Milton had indeed said the opposite. This is typical of the level of conspiracy that was formed against him. He was then transferred to the city, though by this time he had been placed on stress leave." 32 The respondent had been told that he was required to give evidence in a rape charge at Central Local Court on 12 February 1992, however, on arrival he was told that he was not required. He felt angry and wandered later that afternoon to the Minto Railway Station where he was violently arrested and subsequently humiliated and brutalised at Campbelltown Police Station. In the arrest he suffered injuries to his brachial plexus which required surgery and his left arm with permanent disabilities. Charges of trespass and assault police were later withdrawn. 33 Later the respondent was taken to Campbelltown Hospital, treated for his physical injuries and admitted to a psychiatric centre there although discharged the following day. 34 After a period of psychological and psychiatric treatment the respondent was discharged from the Police Service on 3 November 1992 as medically unfit. 35 On 1 December 1995 the delegate of the Commissioner determined that the infirmity certified in the revised medical certificate of discharge of 17 July 1993 (being an adjustment disorder with depressive and anxious mood) was not caused by the respondent being "hurt on duty". Such a finding had important consequences for the respondent's financial future. 36 That finding was set aside by Geraghty CCJ who, after a long hearing, found that the infirmity was caused by the respondent being "hurt on duty". The relevant judgment was in evidence before Judge Phelan. 37 Judge Phelan noted that the appellant conceded that the respondent had suffered a mental disorder since 1991 but submitted that, whilst there might have been an occasion when the respondent was in legal terms under a disability, that occasion had long passed as was the time when he should have commenced proceedings. 38 The Judge considered Kotulski and "C" and stated the question for him, correctly, as follows: "The relevant question is whether on the balance of probabilities the plaintiff is incapable of managing, or substantially impeded in the management of his affairs in relation to the cause of action in respect of the limitation period by reason of any disease or any impairment of his, or her physical or mental condition." 39 He also noted the comment of Slattery J at 122 as follows: "I am of the opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instruction about any action." 40 Since one of the arguments put by Mr Menzies turns upon the activities in which the respondent was able to engage between 1992 and 1996 it is necessary to take an account of them from the judgment, albeit the evidence about them was also, perhaps primarily, directed to the s 60G issue. 41 In March or April 1992 the respondent was referred by the Police Association to a firm of solicitors. He was advised that he could take action in respect of the Campbelltown matters but not the Menindee matters. He was concerned that the solicitor involved also acted for the Menindee officer about whom he had complained. 42 In July 1992 the respondent sought to have his shoulder injury accepted as "hurt on duty". Following his discharge he was offered continuing assistance by the Police Service but when he wrote seeking the assistance he received no reply. 43 As the Judge put it "he continued to protest about his treatment". He sent lengthy statements to Mr Hatton, a State Parliamentarian. He expressed a loss of faith in the Ombudsman to whom he had complained. In November 1994 the Ombudsman did advise that several of his allegations had been upheld and action recommended against some police officers. 44 In January 1993 the respondent consulted a solicitor in respect to a victim's compensation application in relation to his arm injury. This application was ultimately rejected. 45 Towards the end of 1993 the respondent moved to the Far North Coast of New South Wales. He was having difficulty in terms of delays with his solicitor and chose to deal directly with the Superannuation Board in respect of his attempts to have the status of his certificate of impairment altered. 46 The respondent wrote to the Minister of Police in October 1995 and later to the Attorney General. He also in March and April 1996 wrote to the Premier. 47 In 1996 the respondent consulted Mr Grace, who has remained his solicitor since that time. Initially he instructed him in respect of the application in respect of the "hurt on duty" issue. Later he instructed him upon a range of proceedings Judge Phelan described in the following terms: ".... he believed he had against the New South Wales Police Service, the Police Association of New South Wales, the Victim's Compensation Tribunal and the New South Wales Ombudsman as well as the Police Royal Commission." 48 I shall not recite the many steps taken by Mr Grace, however, as Judge Phelan attached considerable importance to his description of the respondent's actions and condition I should refer to those matters briefly. 49 Mr Grace gave evidence that when he first saw the respondent in April 1996 the respondent spoke in a monotone and stared fixedly at him for lengthy periods and thereafter remained silent looking at a rock which had great significance to him. Mr Grace said: "At this conference I was unable to gain any clear history as to what had happened to Mr Bennie …." 50 Mr Grace had difficulty getting instructions from the respondent in order to answer particulars requested of him. He said that he found it almost impossible to speak to the respondent. The respondent would hang up on him, not answer a question, have lengthy silences or require him to speak to his wife. 51 The judgment continued: "Returning to Mr Grace's detailed affidavit, I refer specifically to his continuing problems with the plaintiff. He said at times he could not stop him from talking. It appeared that he was in a trance, reliving the events of the day. In describing the history of the assault in detail, Mr Grace said: 'I may as well have not been in the same room as Mr Bennie at the time. His face was contorted when describing certain events, and whilst not clutching his rock, he would place the rock in a pocket, and thereafter forcibly grip the arms of the chair in which he was sitting.' He also referred to his apparent substantial physical pain. His discussion was quite disjointed. One moment he was discussing the alleged assault, and the next moment he was analysing the lost police file. There was no logical sequence to the events that he was describing to him. He found his instructions relating to the request for further and better particulars made by the police force, almost impossible to follow." 52 Mr Grace described the respondent as being very changeable in his emotional outlook during conferences, when he would be extremely morose, monosyllabic, unresponsive, but then become enraged and speaking with obvious seething hatred about certain members of the police. In his affidavit he had deposed: "I found it extremely difficult to properly prepare his case for hearing in circumstances where I had advised Mr Bennie to do, or not do certain things, to no avail. I believe he did not understand the advice being provided to him, as he continued to act contrary to advice so provided." 53 Mr Grace had great difficulty persuading the respondent to attend medical examinations arranged by the proposed defendants. He was unpredictable in his behaviour, at times could not or would not speak to Counsel. On other occasions he would rant and rave and scream out violently with explosive anger. 54 Mr Grace gave an account of the respondent's behaviour in Court during the "hurt on duty" hearing which Judge Phelan considered very close to the views expressed in his judgment by Geraghty CCJ when he said: "I have watched Bennie deteriorate from day to day. As time grinded on he became more withdrawn, thin, with dark, sunken eyes, tense, sometimes explosive, while his wife Julie attended to him, followed him out of Court to settle him and supported him throughout what she must have thought was a horrible nightmare." 55 Mr Grace set out in some detail the difficulty in getting the respondent to cooperate with various barristers who were briefed in respect of various aspects, of the matter. On one occasion the respondent stormed out. It was not until April 2000 when Mr P Woods of Counsel spent a considerable amount of time with the respondent that there was "a change at least to some degree." 56 Mr Grace set out his difficulties in obtaining proper instructions to make an application for leave to proceed out of time: The respondent remained intent upon other minute and petty matters such as interest on expenses. 57 Judge Phelan observed: "Mr Justice Slattery in the case I referred to, said that it was important to consider what a reasonable person would do. Clearly a reasonable person, in any litigation that I have ever had anything to do with, would actively cooperate with his solicitor, giving answers to requests for particulars and in attending medical examinations, but the plaintiff in this case seems to have done almost anything but those things that one would expect of a reasonable person." 58 The Judge then turned to the medical evidence, although he did not purport to refer to all of it in his judgment. He did not deal with it in chronological order and I shall follow his approach. 59 He had earlier referred to the concession that the respondent had suffered a mental disorder since 1991 and to the discharge on the ground of an infirmity, as finally found, of an adjustment disorder with depression and anxiety. He noted that Dr McGinty "for the Police Service" had certified the respondent as unfit to give evidence in 1992 and had then recommended his discharge because of psychological questions. 60 The Judge set out two extracts from reports of Dr Barclay, a psychiatrist who examined the respondent for his then solicitors. On 11 October 1993 Dr Barclay reported: "In my opinion Mr Bennie is suffering a state of reactive anxiety depression. In my opinion his mental state flows from the conflict he finds himself in with the Police Department, the accumulation of events at Tallimba, Menindee and Liverpool, and in particular the assault which caused his brachial plexus lesion, his condition being complicated by two moderately severe dissociative episodes. He has quite marked symptoms of anxiety and depressive symptoms. He is very distressed by what he perceives to have been, and in fact has been the destruction of his police career. I consider that the symptoms that he has displayed that have raised the suspicion of psychosis are those of depression and an attempt to cut himself off from the reality of what has been happening to him … and the distress that he feels. In his initial presentation to myself, he made it clear that he did not like talking about these things, that he did not want to talk about these things and it was a painful place "to go to" … All of these matters are clearly duty related, and I consider that Mr Bennie has an infirmity of mind and he is incapable of carrying out the duties of his office…" On 24 April 1995 he reported: "It is reasonable to assume that Mr Bennie's illness has been a continuous process since the end of 1991 with its origins possibly going back as far as 1989. Certainly Mr Bennie would not have been in complete remission in November 1992. There would have been some improvement as a result of Dr Spragg's treatment but judging from the assessments that span that period Mr Bennie would at that time have been suffering significant anxiety and episodic depressed moods. That state continues to the present time. In my opinion therefore Mr Bennie's illness has been a continuous one with some fluctuations of its degree of severity but without him ever having a complete remission of his illness since it began at the end of 1991. As of November 1992 Mr Bennie was suffering the same infirmity of mind that he now suffers, was then unfit for duty as a police officer and in my opinion the only identified psycho-social stressors arise directly from his duty as a police officer." 61 Dr Spragg was the respondent's treating psychiatrist and his views are of particular importance. It is convenient to set out Judge Phelan's summary of those views. "Dr Spragg, a psychiatrist, saw him before 12 January 1992 when he confirmed that there was no infirmity of mind. He saw him soon after that date and said he almost did not recognize him. The details of his condition as reported in 18 February 1992 suggests that by then he had suffered a mental collapse. He said he was most concerned about him, and considered a Schedule 2, but under the new Mental Health Act, could not see how he could justify it. He described him as being a very honest and conscientious policeman. He was also very obsessional, and this trait which drove him to work conscientiously, also made him quite intolerant of inaccuracy and inconsistency and dishonesty. He goes on to say: 'When he encounters such situations he is inclined to pursue their correction with dogged resolution. This has been the pattern of his service so far. What has gone wrong recently is that those who have committed misdemeanours, far from being brought to account, are being supported while he feels not only unsupported, but attacked from behind. This constitutes a gross loss of control such as will inevitably lead to a catastrophic reaction in an obsessional personality. Bennie feels he has been destroyed and can see no resolution to his dilemma.' On 25 August 1992, he says: 'I have treated Constable Robert Maurice Bennie since 8th January, 1992 for a severe stress reaction resulting from experiences he has suffered in the course of his duty as a police officer. Over the period I have treated him Mr Bennie's condition had deteriorated to the extent that he has been exhibiting irrational behaviour and has been totally unfit to perform police duties. His behaviour is unpredictable. Giving evidence in a Law Court is liable to create a strain which will cause further deterioration in his uncertain personality integration. He is an extremely angry man but so far has been able to contain his aggressive drives, although at times he appears to have contemplated turning his violence against himself through attempts upon his own life. Apart from the detrimental effect which a court appearance is likely to have upon Bennie, his behaviour on the witness stand is unpredictable and may well lead to unforseen circumstances, determined by his immense anger and a sudden inability to control it. I do not consider he is fit to give testimony in a Court of Law.' In a report of 30 May 1995 addressed to the State Authority Superannuation Board, he said that he had an adjustment disorder with depressed and anxious mood. He is still suffering from the above condition. Interestingly he describes his reaction as being "more intense by virtue of the obsessional element in his personality." For obsessional read 'conscientious'. In a report of 16 February 1998 he confirms his diagnosis, saying, "I favour a diagnosis of post traumatic stress disorder over adjustment disorder, as do all but one of the other clinicians who have given an opinion in this matter." In his final report of 4 November 2000 Dr Spragg at p4 says: 'The effect of these machinations upon Bennie was catastrophic, undermining his confidence, his efficiency and at times his reasoning power. Added to this, at a time when he most needed support, he had to rely upon a legal representative who was openly opposed to his welfare, making it impossible for him adequately to brief counsel, even if he had been emotionally sound. I therefore consider that from 1992 onwards to the present time Robert Bennie has had insufficient mental capacity to understand advices and give instructions to counsel.' " 62 The Judge also referred to the reports of Dr Canaris a psychiatrist who examined the respondent for his solicitors on a number of occasions. The judgment quotes extensively from his reports, however, it will be sufficient for present purposes if I refer to some extracts. 63 In his report of 8 October 1997 Dr Canaris said: "There is no question in my mind that your client could never again work as a policeman. Frankly, with his current levels of anger, irritability, explosive temper, fatigability and anxiety, he is effectively unemployable. He would be more than likely lose his temper when faced with any of the numerous minor irritants which inevitably crop up in any work place. No employer would find this acceptable. Bearing in mind how long this whole process has been going on, I see no prospect of this improving sufficiently in the foreseeable future to render him employable on the open market." 64 In his report of 6 February 2001 Dr Canaris said: "All this amounts now to gross impairment and is little different from what I encountered when I met your client over three years ago. I saw him as unemployable then and unemployable now. Although I did not explicitly say so in my original report, I recall distinctly wondering how he would manage the stresses of a Court hearing." …….. It was certainly my strong impression when I first met your client that he was unwell to a degree that would have made it impossible for him to wage a war on two fronts as it were – that is to say to mount both a Workers' Compensation and a common law action at the one time. …… It would follow from these considerations that certainly 1997 (sic) and certainly by today your client would have been far too unwell to pursue both his Workers' Compensation claim as well as any common law action. The one claim was strain enough upon him and it would seem that dictates of survival forced him to give the Workers' Compensation claim priority. The question then is whether this would in fact have been the case up to, including and after 1995 by which stage, in ordinary circumstances he would have been out of time. We do know that your client did manage to negotiate one protracted hearing but to all intents and purposes it appears to have been at great cost to himself. I very much doubt he could have managed to deal with two matters more or less concurrently. By its very nature, post traumatic stress disorder interferes with the capacity to concentrate, sustain effort and hence to give instructions in a legal matter particularly when the issues are complex. This would be especially the case in the events of two sets of proceedings with their subtle but important differences which would require complex instructions pertaining to separate issues. In one set, your client 'merely' had to show that his condition was work related. In the second, he would have had to additionally show negligence or malice on the part of his employer – a far more complex set of circumstances. Indeed I find myself wondering whether he is really well enough to pursue the second lot of litigation assuming that the Court gives him leave to do so. He is still a very sick man. I fear that he may find it all a source of further distrust and aggravation. He is in principal able to give instructions. However, when he has to turn his mind to the issue of possible negligence or malice on the part of his employer or its representatives, the possibility that this will stir up very considerable anger to the point that his capacity to give instructions may become periodically impaired is very real. This should it arise will bring in its train thorny questions such as whether to continue litigation, appoint a tutor and the like." 65 Finally Judge Phelan went to the report of Dr Wendy Roberts, a psychiatrist who had examined the respondent for the appellant's solicitors. He commented that he accepted her assessment as "generally fair". 66 The Judge said that he found consistent with the other reports the observations of Dr Roberts at pars 11.8 – 13 of her report. That material is not set out in detail in the judgment, however, it is convenient for the purposes of this Appeal to set it out here: "11.11 With regard to the Particulars of Disability, he does describe apprehension and avoidance of police. He described living with suicidal thoughts. I think this is likely to have been the case for many years. He certainly demonstrates extreme lack of trust and lack of confidence and fear and avoidance behaviour and impaired capacity to control his anger. I saw this verbally and physically during this appointment. I recommend that some caution be exercised with him as should he lose control, I think he is likely to be dangerous, He describes a range of emotional problems, including impaired sleep, and showed irritability here. I do not think he is agoraphobic per de but rather avoids going out for fear of seeing police. I can also understand that his relationships with his family would be disturbed. I also note a claim for impaired sexual functioning. I did not have the opportunity to canvass this with him, due to his behaviour. I also note claims for impaired capacity to give instructions, make judgments, understand advice and to reason. I had wished to carry out testing of these functions but this was precluded due to his lack of cooperation, My impression of him cognitively was that this is not the case but he does tend to perceive situations in a paranoid fashion, when the reality is at times different,. He cannot be shaken from his interpretation and in that sense is likely to have difficulties in those areas but not because of any likely cognitive impairment per se. Testing would be needed to comment further on this. His claims for physical problems as a result of the February 1992 assault invite medical opinion. I note a claim for medication to ease pain and assist sleep and control depression. He told me that he is taking nothing. He did describe difficulty driving due to the likelihood of having flashbacks and also because he prefers to avoid driving to minimise the chance of him being picked up by police. He also described inability to undertake a range of pre-injury duties and inability to work because of his emotional state. 11.12 In conclusion, Mr Bennie is an extremely paranoid, suspicious, angry and distressed man. Based on the documents currently before me and his history, he does describe having developed emotional problems as a result of his work with the Police Force. He denied any other contributing factors. He described some pre-existing problems prior to 1989 but not of significant degree, although did describe some symptoms whilst at Newtown and at a time when he may have also had glandular fever. It would seem that the majority of his problems started to develop early in 1992 after he became a whistle-blower and prior to the assault on 12.2.92 and with worsening symptoms thereafter. I note that Mr Bennie denied that 12.2.92 had been a suicide attempt but told the hospital otherwise. It appears that there is an important discrepancy between what he told me and what he told the hospital and note that others have observed this also I have no reason to doubt his current level of distress and his palpable extreme levels of anger and distrust. He has a tendency to misperceive events and to distort reality. He doe have a well-entrenched, high level of paranoid ideation, which it seems has escalated along with his anger to levels where it has encompassed his life and apparently that of his family. I would have liked to have interviewed his wife but this was not possible. 11.13 I have concerns for Mr Bennie's ability to cope with protracted court hearings. I fear for the safety of him and others, notably those involved on the defendant's side were he to lose control of his high levels of anger. I recommend that Mr Bennie be provided with ongoing treatment from a psychiatrist or clinical psychologist with post graduate training in clinical psychology, particularly at the time of any court case. I would like to see the results of any formal testing of cognitive function or emotional and personality function, in order to further clarify any issues of his ability to reason, judge and make decisions. My impression was of an intelligent, articulate man whose ability to judge is affected by his lack of trust and extreme level of paranoia." 67 After referring to the quite contained demeanour of the respondent in giving evidence before him the Judge observed: "I agree with Dr Robert's impression at 11.13 that he is an intelligent and articulate man whose ability to judge is affected by his lack of trust and extreme level of paranoia." 68 The Judge also said: "I have made reference to his Honour Geraghty's description of the plaintiff and Dr Roberts' summation as independently demonstrating the extreme psychological reaction he has in having to remember his horrific past." 69 Judge Phelan then made the following finding: "I am satisfied that the sort of disability that is referred to in the Limitation Act , has been well established in this case, continuing up until the time of the conference to which I have referred. As several of the experts say, he has continuing problems, but at least Mr Grace was enabled to issue the statement of claim and the motion and get generally relevant instructions to pursue the matter. I am thus satisfied that that disability continued to that point of time." 70 The conference of which the Judge spoke was in April 2001. It was not disputed that the Judge commenced the period of disability from the date of the accrual of the cause of action arising from the Menindee events. The Judge said that he was inclined to accept that took place in about mid February 1992. The parties had suggested somewhat earlier dates, however, in the event nothing turned upon that question either before the Judge or on this appeal. 71 Pursuant to the agreement referred to earlier this finding effectively resolved the separate issue in favour of the respondent. The Appellant's Submissions and Consideration. 72 The abandonment of the contention that the relevant test for the application of s 52 was to be found in "C" rather than "Kotulski" significantly recast the appellant's arguments. They are conveniently collected in Mr Menzies' oral address. It is also convenient to follow the approach of considering each submission as I come to it. 73 Mr Menzies commenced his address on the issue of disability by saying: "The short point is … whilst there is a great deal of evidence that the plaintiff suffered from a psychiatric illness at least from 1991, there is not evidence which left it reasonably open for his Honour to find the disability for the whole of the period (as) he does." 74 He conceded "Obviously if we can't disturb his Honour's finding of a disability over the whole time then we've lost ….." 75 The short answer to Mr Menzies' point is that the evidence set out in Judge Phelan's judgment both medical and lay provides ample material upon which it was reasonably open to him to find as he did. In deference, however, to Mr Menzies' address I propose to go shortly to the principal matters he raised. I would observe that much of what he had to say would have carried more weight if the relevant test had been that propounded in "C", that is one that turned primarily upon "understanding" rather than being "substantially impeded in the management of his affairs in relation to the cause of action". 76 As a preliminary matter Mr Menzies put that the Court would need to consider particular periods, perhaps down to the level of months, to determine whether in aggregate the period or periods during which the respondent had not been shown to be disabled exceeded the limitation period. 77 Following exchanges between the Bench and Bar this aspect was refined and the proposition became that the respondent had not been shown to be disabled before 1996 when he instructed Mr Grace. If that were the position the respondent would be statute barred. Mr Menzies also contended that even after that time the respondent had not been shown to be disabled, however, as I understood his argument this was a secondary contention. Mr Menzies put that he could demonstrate conduct consistent with capacity during the whole of the period when the limitation period was running. 78 The first particular point made by Mr Menzies was that the use by the Judge of the phrase "the sort of disability that is referred to in the Limitation Act" failed to identify with appropriate precision the sort of disability to which he was referring. I should note that in the written submissions this suggested lack of precision was linked to the then claimed "tension" between "C" and Kotulski. 79 In either case I consider that the Judge was using a shorthand expression to avoid the need to repeat the detailed language of the section. 80 It was next put that an observation of the Judge in the judgment was "entirely inconsistent" with the Judge's principal finding. 81 The Judge had said, albeit in the section dealing more particularly with the s 60G application: "The case is not one which neatly falls into any particular category, because throughout the plaintiff has from time to time shown periods of rationality and in broad terms, he has been able to continue to follow a life in which, he has been able to manage his affairs, albeit sometimes with difficulty, because of his economic circumstances." 82 This passage refers to the respondent's life generally and does not raise an inconsistency with a finding dealing with his capacity to manage his affairs in relation to the cause of action. 83 The Judge followed the passage relied upon by Mr Menzies with some comments, extracts of which are as follows: "I have referred extensively to his fluctuating mental state, an inclination referred to by Mr Grace of his tendency to focus on minutiae, rather than upon the main chance, which as Slattery J remarked "is one of the considerations going to determining what the reasonable person would do. ….. One has only to see the number of solicitors and barristers who have been retained, and who ceased pursuing his interests as reflective of grave difficulties he had in relation to his legal position. …… I also accept the difficulties that he would have had in concentrating on more than one issue at a time. These are, I think eloquently demonstrated by Mr Grace …." 84 It is relevant to note that the respondent retained his first solicitors, of whom he had suspicions and with whom he had difficulties, in early 1992. It is difficult to see why the Judge's acceptance of the respondent's difficulty with more than one issue should be limited to begin at a particular time after 1992. I think it clear that the Judge was thinking of issues generally not merely a workers compensation case on the one hand and a common law action on the other. 85 Mr Menzies then went to matters that he submitted excluded a process of reasoning retrospectively from the period that the evidence of Dr Canaris and others expressly dealt with. 86 Mr Menzies relied upon some improvement under Dr Spragg's treatment in 1992, however, that very doctor in a detailed report in November 2000 concluded: "I therefore consider that from 1992 onwards to the present time Robert Bennie has had insufficient mental capacity to understand advices and give instructions to counsel." 87 Mr Menzies acknowledged that if that view were "acceptable" the appellant failed. Dr Spragg was the first treating psychiatrist. He knew the respondent's condition then and later. I consider that it was reasonably open to Judge Phelan to accept that view. 88 Dr Barclay, who first saw the respondent in September 1993 and then saw him in April 1995, considered that with fluctuations his illness had begun in 1991 and been continuous since then. This view supports the continuous nature of the condition referred to by Dr Spragg, albeit Dr Barclay was obviously not asked to answer the precise question at issue in the present matter. It is relevant that Dr Barclay supported his view of continuance by reference to "the natural history of the disorder". 89 Mr Menzies then turned to the opinion of other psychiatrists and psychologists not referred to in his judgment by Judge Phelan. It was not suggested that the Judge had not considered these opinions and I do not need to go to them in detail. 90 He pointed out that there was a diversity of opinion as to diagnosis amongst the psychiatrists and psychologists varying from traumatic stress disorder, to anxiety disorder with depressed and anxious mood, to adjustment disorder. What matters is the effect upon the respondent's mental condition and Judge Phelan was entitled to accept Dr Spragg's view of that not to mention Dr Canaris's to which I shall come. 91 A matter heavily relied upon by the appellant was the activities which the respondent had undertaken wholly or in part acting on his own behalf. He had written to Mr Hatton and others, made a claim for hurt on duty compensation, for victim's compensation and for other forms of relief. Whilst the detail in the letters suggests to the lay reader questions of obsession I agree that, in the main, they are well constructed and logical at least in relation to factual matters. 92 However, those matters do not exclude the finding that in respect of the relevant cause of action the respondent was substantially impeded. Indeed Judge Phelan was obviously impressed, as he was entitled to be, with Mr Grace's evidence as to the difficulty created by the respondent's pursuit of a variety of different activities to the exclusion of important issues relating to his cause of action at common law. 93 Mr Menzies put that the opinion of Dr McGinty as to the respondent's unfitness to give evidence in August 1992 should be considered in the light that the evidence he was being asked to give was compelled by subpoena and that he was reluctant to attend and "very cross" with his employer. That may be so, however, the Judge would be entitled to take it into account as one of many considerations pointing to the respondent's fitness to be involved in litigation. 94 Mr Menzies submitted that the Judge had overlooked the following passage in Dr Roberts' report: "… I also note claims for impaired capacity to give instructions, make judgments, understand advice and to reason. I had wished to carry out testing of these functions but this was precluded due to his lack of cooperation. My impression of him cognitively was that this is not the case but he does tend to perceive situations in a paranoid fashion, when the reality is at times different. He cannot be shaken from his interpretation and in that sense is likely to have difficulties in those areas but not because of any likely cognitive impairment per se." 95 I do not consider that to follow at all. The Judge noted the relevant paragraph. It is clear that Dr Roberts was using "cognitive impairment per se" in a limited technical sense. The remainder of the sentence in which the phrase appears suggests someone who might well be substantially impeded in the relevant sense. A concept further supported by the doctor's later reference to "he has a tendency to misperceive events and distort reality." 96 Mr Menzies conceded that if Dr Canaris's view that the respondent was disabled in the earlier period, that is, up to 1996, as well as later, is accepted the appellant fails. I take that concession to be subject to the positive use he then sought to make of the doctor's reports. 97 Mr Menzies referred to the observation of Dr Canaris that he considered the respondent "unwell to a degree that it would be impossible for him to wage a war on two fronts, as it were – that is to say to mount both a Worker's Compensation and a common law action at the one time." He then put that, since the Worker's Compensation proceedings were not commenced until after the limitation period had expired, the respondent would have been able to mount one action, the common law one, during that time. 98 Whilst that inference is open on Dr Canaris's report it does not determine whether the respondent would have been substantially impeded in the bringing of that action. 99 The doctor said: "We do know that your client did manage to negotiate one protracted hearing but to all intents and purposes it appears to have been at great cost to himself." 100 That that cost was at level substantially impeding the management of the case appears conclusively from the evidence of Mr Grace and the passage from the judgment of Geraghty CCJ quoted by Judge Phelan. There is no valid reason to suppose that a common law action would not present, at least, the same problems and elicit the same substantial impediment in its management. 101 Mr Menzies did contend that the fact that the respondent brought his "hurt on duty" case to a successful conclusion was a powerful, perhaps even determinative, argument against his being substantially impeded in the management of those proceedings. Such a conclusion by no means follows. In any event the evidence of Dr Grace and the judgment of Geraghty CCJ were accepted by Judge Phelan as showing that he was substantially impeded in the conduct of the case. 102 Judge Phelan accepted that in April 2001 the respondent had recovered to a point where he was no longer substantially impeded in the management of his cause of action. He attributed this to the information, clarification and support provided by Mr Woods over lengthy conferences. 103 Mr Menzies put that it could not be accepted that mere conferences would lead to such a degree of recovery and that the proper conclusion should be that the respondent had not been shown to have been substantially impeded prior to that time. 104 However, as Judge Phelan had noted Dr Spragg had foreseen what, to me at least, appeared to be that very thing. The Judge speaking of Dr Spragg said: "He did not necessarily foresee however, that he would continue like that into the future. He concluded his report by saying: Mr Bennie does need some supportive psychotherapy at the moment, but this may well become unnecessary if his present frustrations can be resolved." 105 No doubt Judge Phelan had this passage in mind when he concluded that there had been a change, at least to some degree, in April 2001 following nearly a week of conferences after which the respondent "finally understood the nature of the case he had…". 106 I am quite unpersuaded that it was not reasonably open to Judge Phelan to make the finding that he did. Other Matters 107 There are two other matters that should be dealt with. 108 First, the appellant had objected to the tender of some portions of Dr Canaris's report. The judge allowed the material. Mr Menzies put that the point was best made by considering the terms of paragraph 19 of the report. Having referred to interference with concentration and effort in respect of giving instructions the report went on: "….particularly when the issues are complex. This would be especially the case in the event of two sets of proceedings with their subtle but important differences which would require complex instructions pertaining to separate issues. In one set, your client 'merely' had to show that his conditions was work related. In the second, he would have had to additionally show negligence or malice on the part of his employer – a far more complex set of circumstances" 109 It was put that Dr Canaris, as a psychiatrist and not a lawyer, was not qualified to give opinion evidence as to the relative complexity of the issues in the respondent's "hurt on duty" appeal, on the one hand, and at his proposed common law action, on the other. 110 In my view this point has no substance. The best that the appellant could have hoped for was that the material be rejected and put as assumptions. The judge would clearly have been entitled to be and would have been satisfied as the correctness of those assumptions. To suggest otherwise would be absurd. 111 And second, the draft amended grounds of appeal contains a ground: "His Honour erred in reserving the question of costs of the respondent's Notice of Motion." 112 After a application was made for costs by the then defendant Judge Phelan said: "Well I think it is a bit difficult in the absence of counsel for the plaintiff and so I propose to reserve the question of costs…until I have heard proper argument." 113 No error has been demonstrated in that order and it should remain undisturbed. I propose that leave to appeal be refused in respect of this Order. Formal Matters 114 The proceedings were, in some respects, recast during the hearing. It is convenient to refer to some of the steps discussed to explain the orders that I shall propose relating to formal matters. 115 The parties agreed that the respondent's Notice of Motion of 19 November 2002 before Judge Phelan be amended to refer to certain causes of action that had been omitted in error. Although I shall propose that leave be refused in respect of the relief as to which these matters are relevant it is appropriate to make an order as agreed. It should also be noted that the parties agreed that the decision of Judge Phelan of 15 April 2004 is to be taken as a decision in relation to the Notice of Motion as so amended. 116 A Notice of Grounds of Defence and a Reply were handed up during the hearing and orders should be made granting leave to file the documents. 117 The parties consent to an order nunc pro tunc that the issue whether the respondent (plaintiff) was under a disability within the meaning of s 52 of the Act be tried separately from and in advance of the action. An order should be made to that effect although not, I consider, in those terms. The relevant issue arising on the amended pleadings is whether the respondent's action is statute barred. 118 The parties agreed that the decision of Judge Phelan of 15 April 2004 in respect of the application of s 52 of the Act be taken as a decision upon the separate issue in favour of the respondent. 119 Leave was granted during the hearing to the appellant to file a further amended draft Notice of Appeal. Proposed Orders & Notations 120 I propose the following orders and notations: 1. Notice of Motion of 19 November 2002 amended by adding the words "wrongful arrest, wrongful imprisonment and breach of statutory duty" before the word "negligence" in both paragraphs 1 and 2 thereof. 2. Note the agreement of the parties that the decision of Judge Phelan of 10 April 2004 is to be taken as a decision in relation to the Notice of Motion as so amended. 3. Leave to appeal against the order made under s 60G of the Limitation Act 1969 and the order reserving the costs of the Notice of Motion refused with costs. 4. Grant leave to the appellant to file a Notice of Grounds of Defence and the respondent to file a Reply in terms of the draft documents handed up in Court on 18 March 2005. 5. Order that the issue whether or not the respondent's action was statute barred be determined as a separate issue in the proceedings and in advance of the action. 6. Note the agreement of the parties that the decision of Judge Phelan of 15 April 2004 in respect of the application of s 52 of the Limitation Act 1969 be taken as a decision upon the separate issue in favour of the respondent. 7. Grant leave to appeal against the decision on the separate issue. 8. A Notice of Appeal to be filed within seven days. 9. Appeal dismissed with costs. ********** 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.