New South Wales Court of Appeal CITATION: Whybro v. The State of New South Wales [2006] NSWCA 324 HEARING DATE(S): 25 September 2006 JUDGMENT DATE: 23 November 2006 JUDGMENT OF: Hodgson JA at 1; Santow JA at 38; McColl JA at 39 DECISION: 1. Leave to appeal granted. 2. Claimant to file Notice of Appeal within 14 days. 3. Appeal allowed. 4. Orders of primary judge of 20 July 2005 set aside, except as to costs. 5. Grant claimant an extension to 25 July 2003 of the limitation period for the commencement of an action in tort against the opponent in respect of matters referred to in the existing Statement of Claim, subject to the issues raised by the claimant being limited to those set out in par.[28]. 6. Leave to claimant to file an Amended Statement of Claim within 28 days. 7. Opponent to pay the claimant's costs of the application and appeal. CATCHWORDS: LIMITATION OF ACTIONS - Extension of time - Police officer claims damages for post-traumatic stress disorder - Substance of case in negligence is allegation of systemic negligence - Particulars not so limited - Whether primary judge erred in treating case as a wider case rather than considering the imposition of a condition limiting the claim. LEGISLATION CITED: Limitation Act 1969 (NSW) ss.60C, 60G, 60I CASES CITED: State of New South Wales v. Brennan [2004] NSWCA 206 The State of New South Wales v Donnelly [2004] NSWCA 133 PARTIES: Suzana Catherine Whybro - claimant The State of New South Wales - opponent FILE NUMBER(S): CA 40658/05 COUNSEL: Mr. S.G. Campbell SC with Mr. D. Wilson for claimant Mr. J.E. Marshall SC with Mr. C. Lonergan for opponent SOLICITORS: Stacks, Taree for claimant I.V. Knight, Crown Solicitor for opponent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC641/05 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 20 July 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40658/05 DC 641/05 HODGSON JA SANTOW JA McCOLL JA Thursday 23 November 2006 WHYBRO V. THE STATE OF NEW SOUTH WALES Judgment 1 HODGSON JA: On 25 July 2003, the claimant filed a Statement of Claim in the District Court, claiming from the opponent damages for post-traumatic stress disorder suffered by her as a result of alleged breaches of duty by the opponent, in relation to the claimant's service as a police officer between 1 June 1990 and 21 August 2001. 2 On 29 March 2004, the claimant filed a Notice of Motion seeking an order that the time for filing the Statement of Claim in the proceedings be extended to the date of filing the Notice of Motion. 3 On 20 July 2005, Garling DCJ dismissed the Notice of Motion, and ordered the claimant to pay the opponent's costs of the motion. 4 The claimant seeks leave to appeal from that decision. The application for leave was argued on the basis that, if leave is granted, the appeal is to be decided without further argument. STATUTORY PROVISIONS 5 In her application, the claimant relied primarily on s.60G of the Limitation Act 1969, this bringing into play also s.60I. In submissions before the primary judge, s.60C of the Limitation Act was also relied on. Those provisions are as follows: 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 injury, 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. 60G Ordinary action (including surviving action) (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation of Relatives Act 1897. (2) If an application for an order under this section 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 as it determines. 60I Matters to be considered by court (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)–(iii). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision. THE CLAIMANT'S CASE 6 An outline of the allegations on which the claimant relied before the primary judge is set out in pars.1-12 of her summary of argument before this Court: 1. The Claimant was born on 12 June 1968. She joined the NSW Police Force on 1 April 1987 and after her training joined the Crime Scene Department where she worked between 1990 and 1997. Her duties as a Crime Scene Investigator required her attend the scenes of major crimes and scenes involving suspicious or unexplained circumstances or where accidental deaths had occurred. Many of the scenes which she was required to attend involved her viewing and closely examining the remains of numerous deceased persons. There were many distressing or horrific scenes which she was required to examine as part of her duties. 2. During later 1998 or early 1999 she became aware that she was suffering stress symptoms and emotional problems. She did not have any idea as to the cause of her problems nor that the actions of her employer were in any way connected with the symptomatology from which she was suffering. She did not seek treatment nor did she feel the symptoms were sufficient to compromise her work. However, in 1999 she decided to leave the crime scene work and commenced duties as an Education and Development Officer at the Bankstown Local Area Command. 3. During her nine years of employment at the Crime Scene Unit, there were no occasions when counselling was offered or provided to employees. There were two debriefing sessions, both of limited duration and assistance. There was never any professional counselling or psychiatric assistance offered. There was no system in place for the regular monitoring or provision of such assistance to serving Officers. 4. Throughout 1999 and 2000 the Claimant continued to experience stress and what she described as emotional problems. She began to experience flashback episodes relating to her work at the Crime Scene Unit and began to lose confidence in what she was doing. 5. In July 2001 she finally acknowledged to herself that her emotional symptomatology was affecting her ability to work and to lead a normal lifestyle. She then decided to consult her General Practitioner advising him of her symptomatology. She was referred to a psychiatrist with whom she first consulted on 20 August 2001. She went on sick leave after seeing her GP in July 2001 and had not worked since. 6. At the time of leaving work she made a 'Hurt on Duty' Claim and received weekly compensation thereafter. She was not aware that she had any further rights nor did she seek any legal advice concerning her entitlements. 7. She continued to consult with her psychiatrist, Dr Smith, every two or three months. In March 2002 she applied for a medical discharge from the Police Force, such application being approved in October 2002. She still did not seek legal advice concerning her rights or entitlements and she was not aware that she had any, nor was she aware that there was an act or omission on the part of the Police Force which had caused or contributed to her condition. She was not aware that the provisioning of counselling or debriefing services could have eliminated or lessened her condition. 8. She was examined by two psychiatrists on behalf of the Respondent, Dr Maxine Walden on 31 January 2002 and Dr Moorthy on 13 August 2002. Such examinations were arranged by the Police in relation to the Claimant's entitlements under the Police Superannuation Scheme. 9. On 15 March 2003 she consulted Messrs Taylor & Scott, Solicitors seeking advice concerning her Superannuation entitlement. She was not given any advice, nor did she seek it, concerning her potential rights to claim damages for any common law cause of action. 10. In April 2003 she had a chance conversation with a former work colleague who also had been involved in Crime Scene Unit work and on that occasion she became aware that she may have rights to claim damages against her employer for failing to provide counselling, debriefing etc. Also, in theory, she then became aware that the provision of such assistance could have materially altered her medical condition so as to allow her to continue work either as a Crime Scene examiner or doing police work generally. 11. When she became aware of these matters she sought advice from her current solicitor, Mr Grant Avery. This was on 7 April 2003. 12. Mr Avery required some further information from the Claimant and it was not until she was able to see him again on 19 July 2003 then she was able to provide him with this information sufficient for him to advise her. Consequence upon that advice she provided instructions to commence this Claim in the District Court. The proceedings were instituted on 25 July 2003. 7 The opponent disputes some of these allegations, and in particular disputes matters alleged in pars.2, 6, 7 and 10 concerning the claimant's knowledge of injury and its connection with alleged breaches of duty by the opponent. STATEMENT OF CLAIM AND PARTICULARS 8 In her Statement of Claim, the claimant alleged breaches of duty against the opponent in the following terms: 4. From on or about 1 June 1990 to 21 August 2001 the plaintiff, during and in the course of her service, was required as part of her duties as a crime scene examiner, to attend numerous crime scenes and investigate the deaths of numerous persons from the period 1 June 1990 to 21 August 2001. 5. In about August 1992 the plaintiff was required to investigate an incident at Town Hall Railway Station where a deceased had accidentally fallen into an industrial shredding machine and in 1999 the plaintiff was required to attend a disaster victim identification of six persons killed in a light plane accident in the Australian Alps in which the six bodies had all been decapitated and severely dismembered. 6. The plaintiff alleges that as a result of numerous incidents throughout the period mentioned in paragraph 4 above and in particular the incidents mentioned in paragraph 5 above she developed a post traumatic stress disorder. 7. The plaintiff alleges that the defendant failed to provide proper counselling and support which caused, exacerbated and failed to restrict the development of that said condition. As a result, she has sustained injury loss and damage. 8. The injury and loss and damage were occasioned to the plaintiff by reason of breach of the contract of services or breach of duty or both on the part of the defendant, its servants or agents. PARTICULARS OF NEGLIGENCE: a) Failed to provide a safe system of work; b) Failed to take due and proper care for the safety of the plaintiff; c) Failed to provide any or any adequate trauma counselling; d) Failed to provide any or any adequate post incident debriefings; e) Failed to provide any or any adequate warnings of the risk of injury; f) Failed to heed to the plaintiff's request of counselling or assistance; g) Failed to properly monitor the plaintiff's progress in a job prone to causing post traumatic stress disorder. h) Res Ipsa Loquitur. 9 Paragraph 5 of the Statement of Claim referred specifically to two incidents. An affidavit of the claimant dated 6 April 2004 identified ten other specific incidents in which she was involved. However, other material indicated that the claimant claimed to have been involved in crime scene examinations in relation to something like 600 deaths. 10 There was extensive correspondence concerning particulars. 11 A letter dated 7 September 2004 from the opponent's solicitors to the claimant's solicitors referred to particulars received to that time, and sought the following further particulars concerning pars.(a), (c) and (g) of the Particulars of Negligence: As to Particulars of Negligence (a) Failed to provide a safe system of work Question 33: Please provide every act, fact, matter, circumstance or thing relied upon by the plaintiff in the allegation that the defendant failed to provide a safe system of work. Answer: It is alleged that by failing to provide adequate counselling, debriefing, human management and monitoring of police officers that the plaintiff was able to be injured and thereby the defendant failed to provide a safe system of work. The plaintiff does not allege in the Statement of Claim that defendant failed to provide human management and/or monitoring of police officers. Accordingly any such allegations will be objected to unless it is properly pleading and particularised. Please advise me of your client's instructions in this regard. Further, would you please provide the following further and better particulars: 1. What is meant by "adequate monitoring of police officers"? (b) (sic) Failed to provide an adequate trauma counselling Question 39: Please provide every act, fact, matter, circumstance or thing relied upon in the allegation that the defendant failed to provide any or any adequate trauma counselling? Answer: We refer you to the plaintiff's Affidavit. This is not a proper answer to a request for particulars. Further, even if said to be proper the response fails to provide specific references, including paragraph(s) and page(s), of the Affidavit which are relied upon. Question 40: Did NSW Police provide any trauma counselling? If yes, please provide the following particulars: (i) Will it be alleged at the hearing that the trauma counselling provided was not adequate? (ii) What are the facts, matters and circumstances relied upon by the plaintiff to allege that the trauma counselling provided was not adequate? Answer: Yes, we refer you to the plaintiff's Affidavit in which her allegations are outlined. This is not a proper answer to a request for particulars. Further, even if said to be proper the response fails to provide specific references, including paragraph(s) and page(s), of the Affidavit which are relied upon. … (g) Failed to properly monitor the plaintiff's progress in a job prone to causing post traumatic stress disorder Question 58: Please provide every act, fact or circumstance relied upon in the allegation that the plaintiff's job was prone to causing post traumatic stress disorder. Answer: Matter for evidence. What has been requested are the facts and matters relied upon in respect of the plaintiff's allegation that the plaintiff's job was prone to causing post traumatic stress disorder and not the evidence. In that respect the answer is inadequate. Question 59: Please provide every act, fact, matter, circumstance or thing relied upon in the allegation that the defendant failed to properly monitor the plaintiff's progress in a job prone to causing post traumatic stress disorder. Answer: Matter for evidence. What has been requested are the facts, matters and circumstances relied upon in respect of the plaintiff's allegation that the defendant failed to properly monitor the plaintiff's progress in a job prone to causing post traumatic stress disorder and not the evidence. In that respect, the answer is inadequate. 12 The claimant's solicitors gave the following replies to these questions in a letter dated 17 March 2005: 33 The purpose of providing further and better particulars is presumably to particularise matters such as, in this case, what amounts to a safe system of work. Our answer to your question, with all respect, particularises what we believe amounts to your client failing to provide a safe system of work, that is, failing to provide adequate counselling, debriefing, human management and monitoring of police officers to ensure that they did not suffer psychiatric injury. In relation to your first particular as to what is meant by "adequate monitoring of police officers". We state that "adequate" means sufficient, "monitoring" means looking out for, "of" means in respect of and "police officers" means police officers of all ranks serving within the NSW Police. 39 The plaintiff alleges that the failure to provide proper and adequate trauma counselling is outlined by the fact that it is alleged that only two such informal sessions were provided. The reasons for the benefit of trauma counselling are that they tend to reduce the chances of a person suffering post traumatic stress disorder or some other similar condition. 40 Again, with all respect, there cannot be anything inadequate in relation to the answer to 40(i). In respect to 40(ii) we again repeat the previous allegations concerning the two trauma counselling sessions that occurred. These, the Plaintiff says are the only such sessions provided. … 58 It is alleged that the Plaintiff's job which required our client to investigate deaths was a job which was prone to causing post traumatic stress disorder and that the defendant knew or ought to have known of this. This is because our client had to view a lot of dead bodies and also bodies that had been extremely mained (sic). 59 The defendant did not counsel the Plaintiff or send her for medical review regularly when it is alleged she ought of . The defendant failed to provide any psychiatric debriefing or monitoring other than the examples provided previously in the particulars and therefore properly failed to monitor the Plaintiff's progress. It is alleged that if regular debriefing and/or counselling had been performed and/or regular medical examinations or assessment as to the Plaintiff's psychiatric condition had occurred then it is likely that our client would have not sustained injuries or the injuries would not have been as substantial. 13 In a letter dated 3 May 2005, the opponent's solicitors sought the following further particulars: The Negligence Claim 3. Strictly no case in the tort of negligence is properly pleaded. The existence of the duty and the content of the duty are not pleaded. Nevertheless the reference in paragraph 8 to "breach of duty" and the list thereunder of "Particulars of Negligence" indicates the plaintiff wishes to bring a negligence claim. I assume the plaintiff does wish to bring a negligence claim, that the duty to be relied upon is the same as the contract term in paragraph 3 and that the content of that duty is indicated by paragraph 7 of the Statement of Claim. In order to clarify the position please answer the following questions. Q1. Is the defendant correct to assume that the plaintiff proposes to bring a claim in negligence? Q2. Is the duty that will be asserted the same as the contract term in paragraph 3 of the statement of claim, namely "to take all reasonable precautions for the safety of the plaintiff whilst she was engaged upon her work as a crime scene examiner "? Q3. Is the content of the duty of care indicated by paragraph 7 of the statement of claim, namely " to provide proper counselling and support "? Paragraph 6 of the Statement of Claim 4. Paragraph 6 of the Statement of Claim alleges that the plaintiff developed PTSD ''as a result of numerous incidents" in the 11 year period referred to in paragraph 4 of the statement of claim "and in particular the [two] incidents mentioned in paragraph 5" of the Statement of Claim. 5. The two particular incidents and 10 others are referred to in the plaintiff's affidavit of 6 April 2004. Thus it appears the plaintiff will rely on at least 12 incidents. My earlier letters sought to ascertain whether the plaintiff does propose to rely on incidents other than the 12. Your letters are equivocal on this point. Q4. Please now either indicate that the plaintiff will confine her case at the trial to the 12 incidents referred to in her affidavit or fully particularise each other incident which will be relied upon in the proceedings. 14 The claimant's solicitors gave the following answers by letter dated 11 May 2005: We reply in relation to questions 1 - 4 and 27 as follows: 1 Yes. 2 Yes. 3 It is alleged that the duty of care is to provide proper counselling and support and to take reasonable care for the safety of the plaintiff. It is alleged that that duty extends to monitoring the plaintiff's condition, monitoring her work load and case type and looking after her general health and welfare especially in light of the nature of the work which she was performing which as previously particularlised (sic) involved the examination and, viewing of numerous dead bodies and persons that had met violent endings. 4 No, the plaintiff does not propose to restrict her claim to the 12 incidents specifically referred to in the Statement of Claim. 15 Some further indication of the way the claimant seeks to put her case appears from a report of her treating psychiatrist Selwyn Smith dated 23 February 2004, this being the only evidence tendered so far going to breach of duty and causation by such breach: I took up with Ms Whybro the events that she was exposed to and the treatments that she received. Ms Whybro reported to me that Mr Michael John Herring fell into an industrial shredder. Following that particular incident, Ms Whybro spoke briefly with a police welfare officer. She did not find the interaction particularly helpful. She also reported that at the time she was quite distraught. Ms Whybro also reported that she was involved in a two-day disaster victim identification operation in 1999. At that time her work involved identifying and categorizing body parts. She received an informal interaction with her supervisor that she found of little assistance. It is also my understanding that the supervisor whom she spoke to was untrained in psychological matters. I have also noted that no follow-up arrangements were made for Ms Whybro to be treated by professionals such as psychologists, grief counsellors or psychiatrists. It is significant to also note that despite the significant number of traumatic events that Ms Whybro was exposed to, apart from the two brief experiences with her supervisor and the police welfare officer, Ms Whybro has received no further assistance of a psychological kind. The expectation was that she should "get on with it". PSYCHIATRIC OPINION I previously outlined my opinion pertaining to the development of a Chronic Post-Traumatic Stress Disorder with Major Depression and anxiety features in Ms Whybro. I have also emphasised that her psychiatric infirmity has precluded her from working in the police service and resulted in her being medically discharged from the NSW Police Service. It is further my opinion that given the nature of her psychological symptomatologies Ms Whybro should have been provided with suitable counselling, debriefing and monitoring during the course of her employment. Failure to provide such treatment services in my opinion was a significant factor in the emergence and chronicity of her Post-Traumatic Stress Disorder. It is also my opinion that from 1990 onwards the police service were aware of the diagnostic entity of Post-Traumatic Stress Disorder and should also have been aware of the availability and benefit of treatment of Post-Traumatic Stress Disorder as well as Major Depressive Disorders. She should have also been provided the opportunity to attend a specialised Post- Traumatic Stress Disorder program or alternatively, attended a psychiatrist or psychologist who is experienced in the diagnosis and treatment of Post- Traumatic Stress Disorder. DECISION OF PRIMARY JUDGE 16 The primary judge found that the requirements of s.60I were satisfied, in that until about March 2003 the claimant did not know that personal injury had been suffered, was unaware of the nature or extent of that injury, and was unaware of the connection between the injury and the opponent's act or omission. However, the primary judge was not satisfied that it was just and reasonable to extend the limitation period, as required by s.60G, giving the following reasons: The defendant relies very much on a decision of the New South Wales Court of Appeal of The State of New South Wales v Donnelly 2004 NSWCA 133. They argue that this is a very similar claim and that, as in that case, the limitation period should not be extended as the defendant would be prejudiced. The defendant argues that the plaintiff in her statement of claim alleges twelve individual incidents, but that the plaintiff's claim goes far further than that and that, in actual fact, there are about 600 incidents. The defendant argues that when you look at the statement of claim and the answers provided by the plaintiff's solicitor to the request for particulars and you see the extent of the plaintiff's claim that they are not in a position and never can be in a position to meet the plaintiff's claim and so they are prejudiced. The defendant further argues that the plaintiff's claim is that the cause of action is the failure of the defendant to provide counselling, support, debriefing and to provide adequate counselling or debriefing, management and monitoring of police officers to ensure that they did not suffer psychiatric injury. They refer to para 33 of a letter of 17 March 2005 which is exhibited. The plaintiff says she did not complain, she did not say there was a problem and so they would have to go and look for anyone who was in charge or in a position where that person could give evidence of any perception, of any problem the plaintiff may be suffering, what their perception was at the time if they could remember it and how they did or should have dealt with it. The defendant argues they simply cannot do that, that they have to deal with each incident, they have to go and look for the superior officer relating to each incident and perhaps other persons, they have to get evidence of the perception of each of those relevant officers who should have required the plaintiff to undergo counselling, etcetera, even though the plaintiff did not herself know that there was any problem, nor did she complain. The defendant argues and I think it is correct that the plaintiff's real claim starts in 1992, not 1990 which resolves one of the slight problems the plaintiff had and it continues up until when she left in August 2001. That, of course, is a significant period of time. They argue they would be faced with an impossible task. They would have to attend upon every person who may have been in the position to offer counselling to the plaintiff, to perceive that the plaintiff had a problem, to obtain a statement from them and to hope that they had a memory sufficient to provide them with the evidence they needed. They say it cannot be done. The plaintiff's claim is over a lengthy period. There are many incidents and, as I said earlier, the defendant relies upon the Court of Appeal decision. The plaintiff says that this is a simple case. The plaintiff was hurt on duty. She has been paid by the defendant and so they have admitted a causal connection between her medical condition and her work generally. The issue is whether or not counselling should have been provided, whether it was provided and if not provided why it was not provided and whether, if it was provided, the plaintiff's current condition would have been avoided. They argue that the fact as to whether counselling should have been provided would only require the evidence of a limited number of people; that the plaintiff did not have a large number of superiors; that these were matters which could easily be investigated. I have a statement of claim and particulars. The defendant has produced for my aid a convenient summary of the statement of claim and the particulars in one document. I will have that document marked for identification and placed on the file. In that document it is quite clear from those matters alleged in the statement of claim and in particulars that the plaintiff's condition, it is alleged, arises as a result of numerous incidents. I do not believe there is any real dispute that it is about 600 incidents. They also say that not only did the defendant breach a term of contract of service but that the defendant was also negligent. I have difficulty in accepting the argument that the decision for the Court to hear this matter is as simple as is argued by senior counsel for the plaintiff. The defendant argues, and I accept, that it goes much further than a very simple case. The problem, of course, with the plaintiff's case is that she herself says, "I didn't know I had a problem, I didn't complain except in latter stages, it was not apparent to me until early 2003 that I either had a case or a problem. However, the defendant should have had in place a system". The defendant points out that if the argument is one that the defendant should have counselled every police officer in this State after every incident, or taken some other similar action, that it would be impossible. But one has to look at the incidents and one has to, if one has a policy, have it related to the incident or the seriousness of the incident. They then have to ascertain whether or not an officer needs assistance and then give it. The case which the defendant relies on extensively is this case of Donnelly. Donnelly differs slightly because there was a frank injury. It is a claim in which the plaintiff, a police officer, received a gunshot wound. The plaintiff also witnessed another police officer receive gunshot wounds. The plaintiff returned to duties, that was in 1989, and then carried out a number of different duties over a significant period of time similar to this. The allegation as set out in p 5 that negligence "was not one of psychological injury consequent upon the shooting without more, but of psychological injury caused or contributed to by negligence in relation to the claimant's dealing with the opponent thereafter. The latter negligence was in relation to counselling, monitoring and rehabilitation, paying heed to complaints of assault … and providing medical assistance. It may have gone further, through the generalised failure to take steps to ensure that no further psychological injury was suffered and failure to comply with directions or guidelines". That was between 1989 and 2000 and not dissimilar to most of the matters alleged in this case. The judgment in that case at p 14, in the copy I have, para 52 after indicating what the judge who had heard the matter found says: "With respect, his was inadequate reasoning." That was in relation to records. "Records may or may not provide the wherewithal to defend a claim in a fair trial. It depends on the nature of the claim, on whether the records will sufficiently cover the factual issues likely to arise, and on whether the records will sufficiently alleviate the prejudice of faded memories and evidence lost because forgotten. The burden of establishing fairness and justice being on the plaintiff, if doubt remains it will weigh against a grant of leave". They then in para 53 referred to: " … the indeterminate nature of the opponent's claim. It would not be realistic to exclude from consideration all contributions the opponent's psychological state in July 2000: from the shooting itself … At every step the acts and omissions of other police officers are likely to be called into question, not only those alleged to have assaulted him or denigrated him but also those responsible for decisions as to his duties over the period from April 1989 and in particular in the first half of the 1990's. This will have to be explored against the background of the then perceptions by the responsible personnel in the Police Service of the opponent's psychological condition and what might assist it or harm it, and with regard to their reasons for the courses they took or permitted to be taken. The claimant may be found negligent in some respects but not others, and questions of contribution to his psychological state may arise". Of course that is somewhat similar to what it is the defendant alleges in this case. In para 54: "There was no evidence of the availability or otherwise of the persons within the Police Service whose acts, omissions and perceptions will be material. They will be numerous: the way the opponent has framed his case makes it so. Not all will be available, and for many of them the events on which the opponent relies will be remote in memory". And they went on to find there was indeed prejudice. That case was somewhat different to the way these cases have been dealt with in the past. If I was dealing with a statement of claim which related to twelve individual incidents with the claim confined to a defined period it may be that I could find that, whilst there may be some presumptive prejudice, it would not be of such a nature that a fair trial could not be held. The plaintiff has to satisfy the Court that it is just and reasonable to extend time pursuant to the Limitations Act. I am satisfied the defendant would have great difficulty in meeting a claim of this width after such a long period of time and that they would in fact suffer actual prejudice. … However, for the reasons I have given and as a result of the decisions in Donnelly's case I believe I have no alternative other than to dismiss the motion. SUBMISSIONS 17 Mr. Campbell SC for the claimant submitted that the claimant's case was that, because of the particular nature of her work as a crime scene examiner exposing her to a real risk of psychological injury, a safe system of work involved having in place a system of psychological support including periodical monitoring of the claimant's mental health and pro-active provision of counselling after critical incidents. 18 Mr. Campbell SC submitted that the primary judge made two errors justifying appellate intervention: (1) He mistook the nature of the claimant's case, holding that it would require investigation of each of numerous (that is, over 600) incidents in which the claimant was involved; and (2) He regarded himself as bound by Donnelly to reach a decision adverse to the claimant, in circumstances where the passages he relied on were statements of fact on the basis of which the Court in that case was re-exercising its discretion, being facts different from those in this case and distinguishable from them. He submitted that the primary judge's finding of actual prejudice to the opponent was unsupported by identification of the content of this prejudice, and was vitiated by these errors. 19 Mr. Campbell submitted that, in re-exercising the discretion, it was relevant that the claimant had a very small number of superiors and colleagues, there was no evidence that they were unavailable, and cross-examination showed that the opponent knew a lot about what the claimant did and what help the opponent says was available to her. If the Court should take the view that the pleadings and particulars did not limit the claimant to what was her substantial case, the Court could fashion an order to ensure that the claimant was so limited. Mr. Campbell provided a proposed Amended Statement of Claim which made it clear that, in relation to the allegation that pro-active counselling should have been provided after critical incidents, the claimant would only rely on a small number of particularly identified incidents. 20 Mr. Marshall SC for the opponent submitted that the primary judge was not in error in holding that the claimant's case was a wide one: the claimant had explicitly declined to limit her case to twelve incidents, and had never identified the content of the system she claims should have been adopted; but she merely alleged that whatever system the opponent provided, it was not enough. 21 For example, he submitted, in relation to counselling or debriefing after particular incidents, she made no allegation that this was required after all incidents, or, if it was required only after some, as to how and by whom those were to be identified; and she made no allegation as to how and by whom the counselling was to be provided. In relation to regular monitoring, there was no allegation as to whether this was to be by her immediate superiors, or by visits from psychologists or psychiatrists, or as to how often it should happen, how it was to be carried out, or to what officers this system should apply. 22 Mr. Marshall submitted that no error was shown in relation to Donnelly. The primary judge did not say that Donnelly alone dictated the result, but that the reasons he had given together with that case required the result. Donnelly was in fact very similar to the present case. 23 Mr. Marshall submitted that actual prejudice was shown in lost documents, and a general inability to meet a case involving eleven years' service and 600 incidents, particularly where there was no identification of the respect in which the system was said to be inadequate (apart from saying it was insufficient to protect the claimant), and where also the claimant had no recollection of assistance that was actually provided to her, such as a seminar addressing the issues she now complains about. 24 Mr. Marshall submitted it was insufficient for the claimant now to offer to limit her case: if that would have made a difference, it should have been done properly, by proper provision of particulars some time ago. He also submitted that the provision of a proposed Amended Statement of Claim should not affect the Court's decision: there was no actual application to amend, the document could not assist in showing error by the primary judge, it came too late, and it did not in any event place any real limitation on the claimant's case or cure any problem of prejudice. 25 Mr. Marshall also relied on a Notice of Contention, to the effect that the primary judge's decision should be upheld because s.60I was not satisfied. He pointed to transcript references which showed that the claimant believed, by 1999, that there had been failure to follow through with counselling and debriefing after major crime scene investigations, and that these matters were affecting her psychologically; and he submitted that the primary judge made no finding as to satisfaction of the requirement in s.60I(1)(b). DECISION 26 Dealing first with the Notice of Contention, in my opinion error is not shown in the primary judge's findings as to satisfaction of s.60I. In my opinion, a conclusion that the claimant was unaware that her psychological concerns amounted to a significant psychiatric injury until about July 2001, and was unaware of the connection between that injury and the defendant's act or omission until about March 2003, was amply supported by the evidence. It was also necessary for the claimant to show that her application for extension (made on 29 March 2004) was made within three years after she ought to have become aware of these matters; and although the primary judge did not address this explicitly, it was implicit in his judgment, and amply supported by the evidence, that this requirement also was satisfied – that is, that it was not the case that the claimant ought to have become aware of these matters prior to 29 March 2001. 27 In my opinion, although the claimant's case was not limited by her pleading or particulars to one in which the only allegation was the lack of or deficiencies in a system of monitoring and promoting the psychological health of crime scene examiners, and of providing pro-active counselling and debriefing following critical incidents, the particulars and the submissions before the primary judge did convey that this was the substance of the claimant's case. It would have been appropriate in those circumstances for the primary judge to address the prejudice involved in the substance of the claimant's case, and to consider excluding the possibility of prejudice from the width of the particulars by imposing conditions, as was done in State of New South Wales v. Brennan [2004] NSWCA 206. 28 Before this Court, it was made clear that, although the claimant relies on the cumulative effect on her of all 600 or more incidents, her allegations of breach of duty are confined to a lack of or deficiency in the opponent's system(s) for periodic monitoring and promoting the psychological health of crime scene examiners, and of providing pro-active counselling and debriefing after critical incidents; and that as regards the latter, the claimant would rely only on deficiencies evidenced by what happened in relation to a very limited number of incidents. On that basis, the issues would be: (1) What if any system(s) did the opponent have in place between 1990 and 2001 for (a) periodic monitoring of and promotion of the psychological well-being of crime scene examiners, and (b) providing pro-active counselling and debriefing after critical incidents; (2) In what respects if any did any such system fall short of the system(s) the opponent should have had in place, with consideration of any deficiencies in category (b) being limited to 12 or 13 specified critical incidents; (3) Whether any injury proved by the claimant was caused by any such deficiencies (albeit that any such injury was also caused by attendance at 600 incidents). 29 I accept that, even if the claimant's case is so limited, there could still be problems for the opponent in meeting it, particularly in the absence at present of specification of what system(s) the claimant says should have been in place. No doubt the claimant would before trial provide evidence of what she says the system(s) should have been; but the lack of that evidence, or particulars of what the system(s) should have been, bears on the question whether the claimant has now overcome her onus of showing there could be an acceptably fair trial, so that it would be reasonable to order an extension of the limitation period. 30 There could be difficulties for the opponent in relation to the identification of or exclusion of differences between what would have occurred under whatever system may be alleged and/or found to be a non-negligent system, and what actually occurred; and in assessing what difference any such differences would have made to the claimant's condition. Even if the opponent's system is found to be negligent, it remains relevant to have regard to each and every incident to which the claimant was exposed, in order to assess what their impact would have been on her had a non-negligent system been in place. Accordingly, even on a case properly limited to a systems case as set out in par [28], it can be inferred there would be problems caused to the opponent by delay. However, on the whole, I do not think the problems would be such as to prevent there being an acceptably fair trial. 31 Turning to the question whether error by the primary judge has been shown, in my opinion, where the substance of the case was a systems case, it was an error simply to say that, because the particulars could allow a wider case, the case should be treated as a wider case. In my opinion, the primary judge should at least have addressed the question whether an approach such as that taken in Brennan was available. 32 In my opinion also, the case of Donnelly was a very different case. Although in one sense it might be thought to be a simpler case, because there was only one traumatic incident, not more than 600, it was in reality more complex, because the case was not limited to the lack of or deficiencies in a system for monitoring or counselling, but extended to complaints about a wide range of contributions to the officer's psychological state caused by his treatment by other officers. That is shown by pars.[53] and [54] of the judgment, quoted by the primary judge. I do not think it was accurate to say that the matters alleged in Donnelly were "not dissimilar to" most of the matters alleged in this case. 33 In my opinion, in combination these matters do amount to error justifying re-exercise of the discretion in this case. 34 Another matter relevant to the exercise of discretion is the extent of the extension required. A cause of action in tort arises only when damage first occurs. If damage first occurred in this case after 25 July 2000, then the action is wholly within the limitation period. On the material available at present, it is arguable that there was no psychiatric injury before this time, and that there was no actionable damage and accordingly no cause of action in tort before this time. On the other hand, if it be the case that injury first occurred when symptoms first occurred, that is in late 1998 or early 1999, then the proceedings could have been commenced within the limitation period in late 2001 or early 2002; and in that event, the extension required is about 18 months for an action in tort. The extension required for an action in contract would of course be greater, and would be different in respect of breaches occurring at different times (some, presumably, as long ago as 1990). 35 In my opinion, the following matters justify a resolution of this application in favour of the claimant: (a) the difficult and unrewarding issues that would otherwise arise as to when the claimant's cause of action in tort arose; (b) the loss of the claimant's case otherwise than on the merits, if those issues are decided against her; (c) the relatively short extension of time required for an action in tort, in order that these issues not arise; (d) the limited prejudice to the opponent, provided the issues are limited to those specified in par.[28]; and (e) my view that, provided the issues are so limited, there could be an acceptably fair trial. 36 Accordingly, in my opinion, leave to appeal should be granted and the appeal should be allowed. The claimant should have an extension of the limitation period to commence an action in tort, limited to the issues set out in par.[28]. The costs order below should not be disturbed, as the claimant was seeking an indulgence and the opposition to it was not unreasonable. However, in my opinion the costs of the appeal should follow the event. ORDERS 37 I propose the following orders: 1. Leave to appeal granted. 2. Claimant to file Notice of Appeal within 14 days. 3. Appeal allowed. 4. Orders of primary judge of 20 July 2005 set aside, except as to costs. 5. Grant claimant an extension to 25 July 2003 of the limitation period for the commencement of an action in tort against the opponent in respect of matters referred to in the existing Statement of Claim, subject to the issues raised by the claimant being limited to those set out in par.[28]. 6. Leave to claimant to file an Amended Statement of Claim within 28 days. 7. Opponent to pay the claimant's costs of the application and appeal. 38 SANTOW JA: I agree with Hodgson JA. 39 McCOLL JA: I agree with Hodgson 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.