Glarvey v State of New South Wales [2004] NSWSC 84

New South Wales Supreme Court

CITATION : Glarvey v State of New South Wales [2004] NSWSC 84 HEARING DATE(S) : 2 February 2004 JUDGMENT DATE : 24 February 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The relevant limitation period is extended up to and including 21 June 2001. The plaintiff is to pay the costs of the application. The exhibits may be returned.

CATCHWORDS : Extension of limitation periods - futility, delay and explanation for delay and prejudice. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : ASB-Tech Services Pty. Ltd. (In Liquidation) v. Doeland & Anor [2003] NSWCA 167. David Glarvey (Plaintiff) PARTIES : v State of New South Wales (Defendant) FILE NUMBER(S) : SC 20556 of 2001 COUNSEL : Mr G Melick SC/Mr J Young (Plaintiff) Mr P Sternberg (Defendant) SOLICITORS : Marsdens Law Group (Plaintiff) I V Knight - Crown Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Tuesday 24 February 2004

20556 of 2001 David Glarvey v State of New South Wales

JUDGMENT 1 MASTER: These proceedings were commenced by Statement of Claim filed on 21 June 2001. The plaintiff claims damages in respect of what is said to be a severe psychological reaction incurred during his service as a police officer. The claim is founded on negligence and breach of statutory duty (see paragraphs 17 – 21 of the Statement of Claim). 2 His problems are said to have arisen during the period from about 1997 until March 2000. In an Amended Defence, the defendant has pleaded as a defence the expiry of the relevant limitation period. 3 It is common ground that the plaintiff needs an extension of time at least in respect of part of his claim. What happened as a result of the events in 1997 is presently not maintainable and this forms a significant component of the claim. For the purposes of this aspect of the claim, the relevant limitation period expired during 2000. 4 It appears that the plaintiff did experience similar problems in about 1993. He was aware of the significance of the problems and sought treatment in respect of them. He also suffered from a back injury. 5 The affidavits sworn by the plaintiff are exhaustive in detail and he was cross-examined. For the purposes of resolving the present application, it is unnecessary to reproduce the detail in the judgment. 6 An order is sought pursuant to s 60C of the Limitation Act 1969 (the Act). Under that provision, the court 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. In the exercising of the powers conferred by that section, the Act requires the court to have regard to all of the circumstances of the case (including the circumstances enumerated in s 60E). 7 In 1996, the plaintiff became involved in the gun buyback scheme. In 1997, he became aware of irregularities in payments being made to firearm dealers. He reported the irregularities. He contends that the treatment he received thereafter gave rise to stress problems. These problems continued thereafter. In January 2000, he was transferred to Camden. 8 Whilst at Camden, it is said that he suffered from further problems. Generally speaking these may be said to be problems arising from overwork and lack of support. His case is that his lack of recovery from the problems arising in 1997 left him unable to deal with the challenges arising from his work at Camden. He ceased work in May 2000. 9 Thereafter, he pursued two claims. One was in respect of his back injury. The other was in respect of his stress problems. In respect of the latter, he was making a hurt on duty claim. 10 In one of his affidavits he deposed to the following:- "5. Some time in late 2000 or early 2001, I contacted the Police Association about a claim for compensation for my back injury referred to in paragraph 10(d) of my earlier Affidavit. I was informed the Police Association could help me with my back claim. During these discussions my stress problems came up. The Police Association said I should see a solicitor about them. It was not long after this that I first saw Elyse White (sic)" 11 The affidavits do not reveal that he had obtained other legal advice and Elyse White is the only solicitor that gave evidence in his case. 12 During his cross-examination, further material emerged. The Police Association had referred him to a firm of solicitors (Taylor and Scott) concerning his claim for compensation for the back injury. He had given instructions to that firm and his stress problems may have been the subject of some discussion. The back claim has now been resolved. 13 This oral evidence was curiously vague (inter alia as to when he saw that solicitor and what if anything was said in respect of the stress claim). It appears from other material (and it is not in dispute) that he would have seen the solicitor at some time prior to 28 December 2000. 14 It is the plaintiff's case that the claim for the back injury has no relevance to his present claim. It is conceded that it did prevent him from performing general duties. He contends that the psychiatric problems led to him being unable to carry out other duties in the force (including duties involving intelligence work and supervision). 15 His evidence is that after ceasing work he continued to pursue his hurt on duty claim and that he was unable to resolve it. It was that which led him to consult his present solicitor (Elyse White). He first saw her on 19 February 2001. She was instructed in relation to that matter. It is his evidence that after providing material to her he was given advice that he may have a claim in negligence. Her evidence is that she was instructed to commence these proceedings on or around 3 April 2001. 16 Broadly speaking, the defendant looks to three matters in opposing this application. Firstly, it is said that the plaintiff does not have a viable cause of action and that it would be futile to make an order. Secondly, it is said that there has been delay and that the delay is not totally explained. Thirdly, it is said that the delay has brought about prejudice. 17 The claim has its novel features. Counsel have not been able to assist the court with determinative authority on such a claim. The relevant law has its uncertainty. This case will be determined on its own particular facts and the appropriate forum for determining those facts would seem to be at a trial. 18 It may be that the claim is not a strong one. However, I am not satisfied that it is hopeless. In the circumstances of this case, I do not consider that it would be futile to make an order. 19 The delay is not of great magnitude. On the question of the sufficiency of the explanation offered by the plaintiff for it, the court has been referred to ASB-Tech Services Pty. Ltd. (In Liquidation) v. Doeland & Anor. [2003] NSWCA 167. It seems to me that such a case is distinguishable from the present one. Whilst it may not be free from criticism, I consider that, the evidence adduced largely gave a satisfactory understanding of why there was delay in the commencement of the proceedings. 20 The defendant has not led any evidence of actual prejudice. It is not said that relevant witnesses or documents are now unavailable. 21 Presumptive prejudice is relied on. It has to be taken into account. 22 It is said that it may now be difficult to unscramble the egg because his present condition is a product of both physical and psychiatric injury. 23 I am not satisfied that this is the case. Both injuries allegedly arose during the plaintiff's employment in the NSW Police Service. It is not said that the defendant has not had the opportunity to investigate both claims or to have the plaintiff examined by experts. 24 The plaintiff bears the onus of satisfying the court of his entitlement to an order. In the relevant circumstances of this case, I am satisfied that such onus has been discharged. 25 I have reached the decision that it is just and reasonable to make an order and that an order should be made. Accordingly, the relevant limitation period is extended up to and including 21 June 2001. The plaintiff is to pay the costs of the application. The exhibits may be returned. **********