New South Wales Court of Appeal CITATION: Rutter v The State of New South Wales [2005] NSWCA 231 HEARING DATE(S): 28 June 2005 JUDGMENT DATE: 6 July 2005 JUDGMENT OF: Handley JA at 1; McColl JA at 2; Hunt AJA at 41 DECISION: (1) Leave to Appeal granted. (2) The appellant to file the Notice of Appeal on or before 5 July 2005. (3) Appeal allowed. (4) Order of O'Toole DCJ refusing the appellant's application for an extension of time to sue the respondent set aside. (5) Extend the limitation period for the appellant's causes of action accruing on and after 12 March 1995 to 21 December 2002. (6) Respondent to pay the costs of the appeal. CATCHWORDS: LIMITATION OF ACTIONS - application for extension out of time - Limitation Act 1969, s 60C - determining issues of causation on final basis as opposed to determining whether the applicant could prove facts which demonstrated reasonable prospects of success at a final hearing. (D) Limitation Act 1969 LEGISLATION CITED: District Court Rules 1973 House v R [1936] HCA 40; (1936) 55 CLR 499 Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 CASES CITED: Salido v Nominal Defendant (1993) 32 NSWLR 524 Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302; Yu v Speirs [2001] NSWCA 373 Brendon Wayne Rutter (Appellant) PARTIES: The State of New South Wales (Respondent) FILE NUMBER(S): CA 40526/04 B J Gross QC/K O Earl (Appellant) COUNSEL: P Menzies QC/L K Crowley (Respondent) Baker & Edmunds Solicitors (Appellant) SOLICITORS: Crown Solicitor (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 9131/02 LOWER COURT JUDICIAL OFFICER: O'Toole DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40526/04 DC 9131/02 HANDLEY JA McCOLL JA HUNT AJA Wednesday, 6 July 2005 Brendon Wayne RUTTER v THE STATE OF NEW SOUTH WALES Judgment 1 HANDLEY JA: I agree with McColl JA. 2 McCOLL JA: Brendon Wayne Rutter seeks leave to appeal from a judgment of Judge O'Toole in the District Court of New South Wales in which her Honour dismissed his application, pursuant to s 60C of the Limitation Act 1969, to extend the limitation period for his claim for damages for personal injury against the State of New South Wales. 3 At the conclusion of the oral argument the Court granted leave to appeal and ordered that the Notice of Appeal be filed on or before 5 July 2005. Statement of the case 4 The appellant was appointed a probationary constable in the New South Wales Police Service on 5 December 1977. He served as a member of the Service until 2000. On 31 October 2001 he was certified by the Police Superannuation Advisory Committee as incapacitated for police duty due to an infirmity of "generalised anxiety disorder and personality". On 21 October 2002 the Delegate of the Commissioner of Police determined that the appellant's infirmity was caused by his service as a police officer. 5 On 21 December 2002 the appellant's solicitors filed a Statement of Claim in the District Court in which the appellant sought to recover damages in respect of his psychiatric condition from the respondent. The Statement of Claim pleaded that the appellant had joined the Police Service in 1977. It alleged that during his service he: "… performed general duties and was involved in a number of very stressful and hazardous incidents including repetitive incidents whereby he was exposed to cumulative stress and trauma whereby [he] became ill and was so injured that by 22 January 2000 he was unable to continue his duties and suffered loss and damage." 6 The Statement of Claim then alleged that the appellant's loss was caused by the respondent's negligence of which particulars were given. It is unnecessary to repeat the particulars of negligence for the purpose of resolving the appeal. 7 Particulars were filed pursuant to Pt 9 r 27 of the District Court Rules 1973. They identified the "Date of Accident" as 22 January 2000. That was the date on which the appellant decided he could not continue the shift he was then working, handed in his appointments and went on sick leave. 8 On 26 March 2003, the respondent's solicitors advised the appellant's solicitors that they asserted the proceedings were statute barred. On 29 April 2003 the appellant filed a Notice of Motion seeking an extension of the limitation period pursuant to the Limitation Act 1969. The respondent formalised its Limitation Act point in its defence filed on 25 June 2004 (a week after the judgment on appeal) in which it pleaded (inter alia) that the proceedings were statute barred "… to the extent it is alleged that the plaintiff suffered any injury prior to November 1999". 9 Although it did not plainly appear from either the Statement of Claim or the nomination of the "date of the accident" in the Pt 9 particulars, the appellant's application for an extension of time was based on the proposition that his cause of action accrued when he first suffered damage in the form of psychiatric injury. Expert reports tendered on his behalf suggested that the condition became manifest in about 1995 – 1996. Its onset was attributed to his involvement in the investigation of the traumatic death of a worker who was almost decapitated in a fatal industrial accident. 10 There was evidence before the primary judge from a psychiatrist, Dr P Klug, that the appellant said his symptoms had begun in about 1996 and worsened thereafter. Dr Klug diagnosed the appellant's symptoms as being consistent with a chronic adjustment disorder with a predominantly anxious mood which, in Dr Klug's opinion "was substantially in response to work-related stresses". Ms Walker, a Clinical and Forensic Psychologist retained by the appellant's solicitors, took a history of his investigation of the fatal industrial accident. She recorded that, "[d]uring this time, or perhaps somewhat after, Mr Rutter began to suffer panic attacks which hit suddenly or were associated with very heavy sweating". She agreed that the appellant was suffering from an adjustment disorder with mixed anxiety and depressed mood as defined in DSM-IV – a disorder she opined was "entirely work-related". The decision below 11 The primary judge noted (at [9]) that following his appointment as a probationary constable the appellant "intermittently … performed hazardous and/or distressing police duties". 12 After referring to some early incidents her Honour recorded (at [17] – [21]): "17. Between 13 March and 20 September 1995, the plaintiff investigated the traumatic death of a worker and gave evidence to a coronial inquiry into the death. The horrible appearance of the deceased, the circumstances of the death and the plaintiff's having to give evidence thereon (exhibit 10) caused the plaintiff's natural, proportionate distress. 18. In 1995 or 1996, Mr Brand* noticed a change in the plaintiff's behaviour. The plaintiff was reluctant to discuss his duties. He continued to work diligently but had difficulty completing his duties. Mr Brand discussed with his superiors at Merrylands Police Station the number of officers available to perform the Station's work and the plaintiff's apparent difficulty completing an equitable proportion thereof. Mr Brand offered and/or provided the plaintiff with temporary assistance but realised, eventually, that they and their fellow police officers would be overworked for the foreseeable future. 19. In 1996, Dr Nguyen (or a member of Dr Nguyen's general practice) diagnosed the plaintiff's hypertension and prescribed appropriate medication including Blocadrin. Intermittently thereafter, the plaintiff was irritable and insomniac. He noticed a burning sensation around his neck. He had episodic chest pain and tightness. He suspected that his symptoms were cardiac in origin and associated them with his police duties. Dr Nguyen diagnosed the plaintiff's anxiety, caused or aggravated by hypertension. Between 1997 and 1999, the plaintiff did not enjoy his duties but he did not expect his anxiety to incapacitate him. He did not expect his anxiety to deprive him of his career as a police officer. 20. In November 1999, the plaintiff attended a volatile industrial dispute in the course of his duties. Between 1 and 5 November 1999, the plaintiff feared for his safety and apprehended serious physical injury. When the plaintiff completed his duties near a picket line he felt relieved but there was no material change in his affect. 21. Between mid-November 1999 and January 2000, there was a progressive radical change in the plaintiff's affect. He was irritable with his fellow police officers and preoccupied with his duties. The plaintiff's abnormal perspiration, episodic tachycardia, flushing associated with a boiling sensation, tinnitus and insomnia were symptomatic of a psychiatric illness." [* Mr Brand was a Sergeant who worked with the appellant from 1983 until at least the late 1990's] 13 According to the primary judge the appellant performed his normal police duties until 22 January 2000. On that date he became distraught, was emotionally labile and feared that he would harm other persons. He surrendered his side arm and appointments, complained that his police service and/or employment caused his incapacity and consulted, for the first time, a welfare officer designated by the Commissioner. He was referred to a psychologist, a Mr Glancey. Although, on Mr Glancey's advice, he attempted to resume police duties, subsequently in August 2000, he applied for medical discharge on the ground that his psychiatric illness permanently incapacitated him from discharging his normal duties. 14 The primary judge concluded: "48. The evidence in the Motion does not persuade me that the plaintiff's police duties between 1977 and mid-November 1999 had any relevant effect upon his general health, upon his psyche nor upon his capacity for his normal duties. Between 1991 and 5 November 1999, the plaintiff's hazardous or distressing police duties probably exacerbated symptoms of his pre-existing anxiety intermittently but the sequelae of those duties were transient. I am not persuaded that any of those duties injured or incapacitated the plaintiff relevantly. 49. I conclude that the primary cause of the florid psychiatric illness which incapacitated the applicant in January 2000 was his disillusionment with the Police Service, resulting from the Commission's reports and their sequelae. The plaintiff's distressing and/or hazardous duties between mid-November 1999 and January 2000 probably played a causative role in his psychiatric illness and in his consequent incapacity. 50. I conclude that the OSC* pleads the injury between mid-November 1999 and January 2000 of which the plaintiff persuades me for the purposes of this Motion. The Court's granting his leave to plead the cause of action, pleaded in his OSC, arising from the sole relevant injury of which he persuades me would be otiose. The evidence does not persuade me that it is just and reasonable to permit the plaintiff to plead any other cause of action, alleged in his OSC. I am not asked to decide, and I do not decide, whether the evidence in the Motion would persuade the Court, when it hears the OSC in due course, that the defendant's negligence caused the plaintiff's psychiatric illness. 51. For the reasons in this judgment, I exercise the discretion conferred on the Court by the Limitation Act 1969, as amended, by declining to make the orders sought by the plaintiff in his Motion." [* This was a reference to the Ordinary Statement of Claim] 15 The primary judge dismissed the Motion and ordered the appellant to pay the costs of the Motion on 18 June 2004. 16 The effect of the dismissal of the Motion was to leave the appellant's claim for damages on foot to the extent it relied upon a cause of action which accrued on and from 20 December 1999 i.e. three years prior to the filing of the Statement of Claim. That would have confined the Court's consideration of the issue of breach to the narrow window of the few months before he finally left the Police Service in August 2000. Although the appellant could have given evidence tracing his psychiatric condition to 1995, confining his cause of action to such a narrow time frame could have confined him to an assertion that his police duties in the months from December 1999 – August 2000 exacerbated rather than caused his psychiatric condition. Submissions on appeal 17 The sole ground of appeal is that the primary judge erred in law by deciding, adversely to the appellant, issues which were trial issues and did not legitimately arise for decision on the application for an extension of time. The appellant complains, in particular, that the primary judge erred in determining whether his police duties caused his psychiatric state and any consequent incapacity or caused any continuing exacerbation thereof. 18 The appellant contends that the primary judge's exercise of her discretion miscarried in such a way as to attract appellate review: House v R [1936] HCA 40; (1936) 55 CLR 499. 19 Mr B Gross QC, who appeared for the appellant with Mr K Earl, submitted that the primary judge ought to have extended the limitation period to encompass 13 March 1995 – apparently the date of the fatal industrial accident. 20 In its written submissions the respondent submitted that the appellant had not identified any error of law in the primary judge's decision. The respondent contended that it was necessary for the primary judge to determine the date from which the limitation period ran in order to identify the matters which attracted consideration pursuant to s 60E(1). It argued that the primary judge correctly concluded that there was no evidence which established that any cause of action had accrued to the appellant prior to mid-November 1999. 21 In oral argument, Mr Menzies QC, who appeared with Mr L Crowley for the respondent, accepted that, before the primary judge the respondent had based its opposition to the application for an extension of time upon ss 60E(1)(e) of the Limitation Act. That subsection entitles the Court in exercising its s 60C discretion, to have regard to "the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission". As much is apparent from Mr Menzies' cross-examination of the appellant. 22 Mr Menzies said that the respondent had also resisted the extension application on the basis of presumptive prejudice arising in relation to the unavailability of witnesses. He accepted, however, that the respondent could not rely upon such prejudice in relation to the period from March 1995 described in paragraphs [17] – [19] of the judgment below. 23 Significantly, Mr Menzies did not contend that the respondent had argued that the extension application should be rejected on the approach taken by the primary judge. Again, as much was apparent from the transcript which records her Honour putting to Mr Earl, who appeared for the appellant on the extension application, that she did not understand Mr Menzies (who appeared for the respondent below) was challenging the proposition that the appellant had a cause of action, albeit one which was statute barred. In addition her Honour recorded the respondent as conceding that there was "a foreseeable risk … of an injury of the nature of which the … plaintiff alleges". Mr Menzies did not demur to either of her Honour's statements. Consideration 24 In my view the appellant has demonstrated that the primary judge's exercise of her discretion miscarried. 25 The appellant's claim for an extension of time was based on s 60C of the Limitation Act. That section provides: "60C Ordinary action (including surviving action) (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal duty, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 26 Section 60C applies only to causes of action that accrue on or after 1 September 1990: s 60B. 27 There is no express requirement in s 60C that, in an application to extend time, a plaintiff must establish that "there is evidence to establish the cause of action": cf s 58(2)(b). It has been held, however, that in order to satisfy the requirement in s 60C(2) that it is "just and reasonable" for the Court to order that the limitation period for a cause of action be extended, an applicant must "prove facts from which the Court can be satisfied there is … a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing" (emphasis added): Yu v Speirs [2001] NSWCA 373. 28 The appellant's cause of action in negligence was not complete until he suffered measurable loss or damage: Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 at [13] – [14] per Handley JA; see also Giles JA (at [41]). Time commenced to run under the Limitation Act when such damage accrued even though the appellant (as appeared to be his contention) was not aware of it: ibid (at [15]). 29 The appellant's argument that he suffered damage at the onset of his psychiatric condition in about March 1995 meant he had three years from that date in which to commence proceedings: s 18A(1)(b), Limitation Act. That period expired in March 1998, over 4 years before his Statement of Claim was filed. 30 The burden the appellant was required to discharge in order to establish that he had sufficient evidence that he had reasonable prospects of success was explained by Hunt J (as his Honour then was) in Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443 as follows: "… the plaintiff must make it appear that the evidence to establish his cause of action exists and that it is available to be adduced at the trial. The test is thus somewhat less exact than that which is applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury. A certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted …" 31 His Honour's observations, albeit expressed in relation to s 58(2) of the Limitation Act, have equal application to s 60C. Although they do not address the precise point which arises for resolution in this case, they make it plain that the issue the appellant was required to address was not whether he could prove his cause of action in the sense for which proof would be required at a final trial but, rather, that it would not be futile to extend time because, for example, an element of his cause of action was incapable of being established: cf Salido v Nominal Defendant [1993] 32 NSWLR 524 at 528 per Gleeson CJ. 32 Although her Honour referred to the reports from Dr Klug and Ms Walker, she did not appear to appreciate that their opinions supported the appellant's contention that the onset of his psychiatric condition could be traced to about March 1995. There was, accordingly, evidence which supported the appellant's contention that his psychiatric condition was work-related and, arguably, dated back to at least the time of his investigation of the fatal industrial accident. Thus there was sufficient evidence, in my view, that the appellant had reasonable prospects of establishing at a final trial that he suffered the onset of a psychiatric condition in or around March 1995 and that condition was attributable to the respondent's breach of duty. Whether or not that conclusion would be reached after all the evidence was considered was a matter for the trial. 33 This was not the approach, however, which the primary judge took. 34 Rather, as appears from paragraphs [48] – [51] of the judgment, her Honour determined, on a final basis, whether events, which occurred during the period 1977 to mid-November 1999, had causally affected the appellant's health. Her Honour also determined that to the extent the appellant's police duties had exacerbated symptoms of a pre-existing anxiety state, "the sequelae of those duties were transient" and that she was "not persuaded that any of those duties injured or incapacitated the [appellant] relevantly". 35 In other words, her Honour determined the issue of causation by deciding whether the lay and expert evidence established to the point of final persuasion, that the appellant's police duties had caused his psychiatric injury. It might be accepted, as the respondent submitted, that the primary judge was required to determine a date from which the otherwise expired limitation period ran. However, the appellant was not required to discharge the burden of proving that date as if at final trial. He was merely required to establish that he had reasonable prospects of success in establishing his cause of action dating on and from 13 March 1995. The primary judge misdirected herself as to the test she was required to apply and, accordingly, fell into reviewable error. 36 If it were necessary I would also conclude that the primary judge's exercise of discretion miscarried erred because her Honour misapprehended the facts in failing to accord weight to the opinions from Dr Klug and Ms Walker. 37 Mr Menzies as I understand it, effectively abandoned the respondent's argument below that it would be prejudiced by an extension of time. 38 In the light of that concession, the Court should finally dispose of the application by making orders granting an extension of time rather than remit the matter for further hearing. The cause of action should be taken to have accrued on 12 March 1995, the day before that Mr Gross identified as the date of the industrial accident for abundant caution. 39 The appellant acknowledged that if he succeeded on appeal he should nevertheless bear the costs of the motion below. Orders 40 I propose the following orders: (1) Leave to Appeal granted. (2) The appellant to file the Notice of Appeal on or before 5 July 2005. (3) Appeal allowed. (4) Order of O'Toole DCJ refusing the appellant's application for an extension of time to sue the respondent set aside. (5) Extend the limitation period for the appellant's causes of action accruing on and after 12 March 1995 to 21 December 2002. (6) Respondent to pay the costs of the appeal. 41 HUNT AJA: I agree with McColl 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.