Cavanagh v State of New South Wales [2008] NSWCA 350

New South Wales Court of Appeal

CITATION: Cavanagh v State of New South Wales [2008] NSWCA 350

HEARING DATE(S): 3 December 2008

JUDGMENT DATE: 17 December 2008

JUDGMENT OF: Giles JA at 1; Ipp JA at 41; Macfarlan JA at 42

DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within seven days. (2) Appeal allowed. (3) Set aside the order dismissing the notice of motion filed on 8 December 2004 and in lieu thereof order that the limitation period for the appellant's cause of action pleaded in the amended statement of claim filed on 21 September 2007 be extended up to and including that date. (4) Set aside any order as to the costs of the notice of motion made by the trial judge and order that the plaintiff pay the defendant's costs of the notice of motion. (5) Order that the respondent pay the appellant's costs of the application for leave to appeal and the appeal.

CATCHWORDS: Negligence - limitations - application to extend limitation period - whether just and reasonable - tests of showing viable cause of action or that evidence will be available to show a cause of action - any test subservient to statutory question - on facts, was just and reasonable.

LEGISLATION CITED: Limitation Act 1969, s 60G(2)

Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549; Holt v Wynter [2002] NSWCA 143; (2000) 49 NSWLR 128; CASES CITED: New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583; Rutter v State of New South Wales [2005] NSWCA 231; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497; Yu v Speirs [2001] NSWCA 373.

PARTIES: Christopher Edwin Cavanagh - Appellant State of New South Wales - Respondent

FILE NUMBER(S): CA 40209/08

COUNSEL: K W Andrews & M Tanevski - Appellant G A Laughton SC & C Hodgson - Respondent

SOLICITORS: Adams & Partners Lawyers, Penrith - Appellant Hicksons Lawyers - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20430/04

LOWER COURT JUDICIAL OFFICER: Grove J

LOWER COURT DATE OF DECISION: 2 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Cavanagh v State of New South Wales [2008] NSWSC 391

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40209/08 SC 20430/04

GILES JA IPP JA MACFARLAN JA

Wednesday 17 December 2008 CAVANAGH v STATE OF NEW SOUTH WALES Judgment 1 GILES JA: The appellant served as an officer in the NSW Police Force from 1974 to 1994. From 1982 he was a member of the Police Rescue Squad stationed at Marrickville. He ceased active duties in August 1992 and was discharged from service on medical grounds in 1994. 2 In proceedings against the respondent commenced on 2 December 2004 the appellant claimed damages for negligence causing psychiatric injury. In an amended statement of claim filed on 21 September 2007 he alleged frequent exposure to "traumatic and/or life threatening events", beginning with his attendance at the scene of the Granville rail disaster in 1977 when he was on highway patrol and then on twenty occasions over the period 1983-1992 when he was in the Police Rescue Squad. He alleged that the exposure caused post-traumatic stress, depression, shock and emotional breakdown. There were extensive particulars of negligence, to which I will return. 3 The proceedings were commenced well after the expiry of the limitation period applicable to the cause of action. By a notice of motion filed on 8 December 2004 the appellant applied for extension of the limitation period pursuant to s 60G(2) of the Limitation Act 1969 ("the Act"). By that provision a 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. An order may not be made unless the court is satisfied that certain "gateways" in s 60I(1) have been passed through. 4 The notice of motion was heard on 17 April 2008: the delay was not explained. On 2 May 2008 the learned trial judge ordered that it be dismissed: Cavanagh v State of New South Wales [2008] NSWSC 391. 5 This is an application for leave to appeal from the dismissal of the notice of motion, heard on full submissions as if an appeal.

Dismissal because no viable cause of action 6 The trial judge summarised the pleaded case of negligence as one of - "2. … alleged omissions by the defendant to identify a risk of psychological injury to the plaintiff as a result of his exposure to the traumatic events and the failure to provide him with appropriate treatment whereby the risk materialized into his developing a condition of post traumatic stress disorder." 7 His Honour said that it was not suggested that the appellant did not truly suffer from the diagnosed post traumatic stress disorder. 8 His Honour accepted that the appellant realised that there may have been omissions by the respondent connected with his condition only towards the end of 2003, and accordingly held that he passed through the gateways in s 60I(1)(a)(iii) and (b) of the Act. 9 It was then necessary to decide, in accordance with s 60G(2), whether it was just and reasonable to extend the limitation period. The respondent had relied on presumptive and actual prejudice consequent upon delay, but the trial judge was "unpersuaded that potential prejudice to the defendant is of such magnitude as to inhibit fair trial" (at [31]). His Honour nonetheless concluded that it was not just and reasonable to extend the limitation period because -

"35 Although, as argued for the plaintiff, I am favourably persuaded of the matters abovementioned, it would be futile in my view to grant the plaintiff an extension of time and permit him to embark upon litigation which is doomed to failure. It would be essential for the plaintiff to prove, as I have indicated, that omission by the defendant caused the loss of a chance of a more favourable outcome. In the circumstances, as the pleading recognizes, that would mean showing that treatment of the plaintiff's psychological condition would have produced such a result. The plaintiff in fact had treatment by a competent and qualified psychiatrist and it is demonstrated that this neither cured or ameliorated his condition. The situation would be no different irrespective of whether that appropriate treatment was arranged by the plaintiff or by his employer.

36 Put another way, the psychiatric treatment of the plaintiff fulfilled what was requisite to constitute a reasonable response by the employer to the risk of injury which the employer ought to have known had fallen due upon the plaintiff. The absence of a critical necessary element of proof in order to sustain an action in negligence has the consequence of demonstrating an absence of the possession by the plaintiff of a viable cause of action."

Why no viable cause of action? 10 The appellant described the traumatic events particularised in the amended statement of claim in a lengthy statement, and in the case of the Granville rail disaster in an affidavit. The final event was his attendance at Town Hall Railway Station on 1 August 1992 after a railway employee fell into a garbage shredder. The appellant was involved in removing the remains, over some hours, in the course of which a piece of internal body part fell into his mouth. This had a profound effect on the appellant. 11 The trial judge said of the Town Hall event - "9 The evidence, which I accept, is that the plaintiff was not aware that he was suffering any psychological or psychiatric injury until after the incident of 1 August 1992. This testimony appears in his affidavit of 5 October 2005. The case which is sought to be made on his behalf is however, based not upon that single incident, but upon an absence of the provision of what are described in the pleadings as 'counselling and/or other psychological or psychiatric treatment', and 'debriefing services' at any time. Despite the expansive scope of the pleading to incorporate all of the particularized incidents, the plaintiff's evidence is entirely compatible with Dr Strum's opinion in his report of 22 November 1994 that 'clearly Mr Cavanagh's chronic illness (post traumatic stress reaction characterized by anxiety and depression) was the result, not of cumulative illness, but of one horrendous incident (that of 1 August 1992)'. It is true, as counsel pointed out, that throughout the medical reports there are ambiguous references to traumatic events in general, but it is plain that in making the statement just quoted Dr Strum was, in distinction from those occasions, focussed upon the very precise issue." 12 When specifically addressing whether there was "some material to demonstrate the existence of a viable case" (at [22]), the trial judge said that there could be a "notional division between the consequences of the incident on 1 August 1992 and the previous incidents" (at [23]), and "24 A good deal of the medical opinion is simply couched in terms of the plaintiff's general exposures to trauma but analysis of the series of reports from Dr Spragg (and Dr Strum whose explicit conclusion has been above set out) shows that it was the response to the event of 1 August 1992 which led to rumination about preceding incidents and there is no detectable history of the plaintiff feeling or exhibiting any sign or symptom which would provoke consideration of any need for psychological intervention or counselling at any time following the various experiences prior to August 1992.

25 The situation was obviously different following the calamitous event at Town Hall Railway Station. I accept that the plaintiff's then condition manifested a need for treatment in respect of his mental and nervous states. Of this situation the defendant, as his employer, should have been aware. The next essential enquiry is, what would be the reasonable response of an employer to such awareness. The answer, which coordinates the particulars scheduled in the pleading, would be to provide the plaintiff with suitable treatment. … " 13 His Honour then reasoned, in summary, that although it was not provided by the respondent, the appellant did receive suitable treatment under the care of Dr Spragg; despite receiving that treatment his post traumatic stress disorder was not cured, nor was there any amelioration of some of its symptoms; the respondent's failure to provide suitable treatment when the appellant showed signs or symptoms of psychological or psychiatric injury after that event was therefore of no causal significance because it would not have cured or ameliorated the psychiatric injury. 14 There was negligence after the Town Hall event, but it was not causative of loss. Exclusion of liability for negligence prior to the Town Hall event rested upon two steps in reasoning, perhaps not clearly distinguished. One was that the appellant's post-traumatic stress disorder was the result only of the Town Hall event on 1 August 1992, with no contribution from the preceding traumatic events: see [9] and [24] set out above, taking up Dr Strum's opinion that the appellant's "chronic illness … was the result not of cumulative illness, but of one horrendous incident (that of 1 August 1992)". The other was that the appellant did not exhibit "any sign or symptom which would provoke consideration of any need for psychological intervention or counseling at any time following the various experiences prior to August 1992" (at [24]), and implicitly that there was therefore no occasion for the respondent to do anything by way of reasonable response to the risk of psychiatric injury until signs or symptoms were shown after the Town Hall event. In short, any negligence prior to the Town Hall event was not causative of loss, because the appellant's post-traumatic stress disorder was the result only of the Town Hall event, but anyway there was no negligence prior to the Town Hall event.

Difficulty in the reasoning 15 In my opinion, the two steps in the reasoning are flawed. 16 First, Dr Strum did not attribute the appellant's psychiatric condition only to the "one horrendous incident" in August 1992. He referred to the one horrendous incident as the explanation for the appellant's condition having become "chronic", meaning that he expected that the condition would not be alleviated by treatment and would continue. Dr Strum expressed his full agreement with the reports of Dr Spragg, in the second of which Dr Spragg said expressly that "[t]he cause of [the appellant's] condition is his police service, featuring numerous traumatic experiences and in particular the incident at Town Hall station on 1 August 1992". Dr Strum referred to the Town Hall event, described as "the incident which caused Mr Cavanagh to break down", as "merely the last straw of many such incidences [sic], rather than being, in itself, particularly traumatic and quite extraordinary", and recorded that the appellant reported feeling agitated and traumatised by the accumulation of all the events and thought about them constantly. 17 Secondly, even if the trial judge's view of Dr Strum's opinion had been correct, Dr Spragg had clearly attributed the appellant's psychiatric condition to the cumulative events. Dr Spragg's reports were before the trial judge without challenge, and any conflict with Dr Strum's opinion was not appropriately resolved on the application to extend the limitation period. Dr Spragg's opinion was sufficient to show that in relation to the cause of the appellant's condition, there was expert support for a cause of action based on the earlier events. 18 Thirdly, in [24] and [25] set out above the trial judge unduly confined the appellant's case. The appellant's pleaded case was not one of negligence in failing to provide suitable treatment when signs or symptoms of psychological or psychiatric injury were evident. His Honour correctly described the particulars of negligence as prolix and to an extent repetitive, but his Honour's summary at [2] set out above extended to identification of risk of psychological injury and failure to provide treatment whereby the risk materialised: this went beyond provision of treatment in response to evident signs or symptoms. The particulars of negligence included, again in summary, failure to train and educate the appellant on the risk of psychological or psychiatric injury from exposure to traumatic events, failure to monitor his psychological and psychiatric health following exposure to traumatic events, failure to provide de-briefing and follow it up with any necessary treatment, and allowing a culture to develop which would encourage (in my words) stiff upper lip perseverance. 19 In its written submissions the respondent sought to uphold the trial judge's analysis of the medical evidence. It pointed in particular to Dr Spragg's statement in his first report that the appellant's "present severe emotional state was precipitated" on 1 August 1992, and his description of the Town Hall event as a "breaking point" when the appellant had otherwise kept going in his work, to Dr Strum's observation that the appellant had been able to "cope with the trauma previously", and to the appellant's statement in a letter dated 21 July 1994 that he had not been affected by his symptoms prior to the Town Hall event. It submitted that the trial judge had "pragmatically considered the whole of the medical evidence in the light of the background … not in some artificial way, and had come to the correct conclusion despite "some ambiguity in the medical evidence". I do not agree, and in oral submissions the respondent but faintly sought to support the trial judge's reasoning. 20 In my respectful opinion, his Honour fell into error in coming to his conclusion that the appellant's litigation was "doomed to failure" (at 35]).

No viable cause of action nonetheless? 21 As the debate on appeal developed, the respondent's submission became that the appellant had not demonstrated a viable cause of action in a different respect, namely that the training, education, monitoring and such like would in his case have been likely to have prevented him suffering, or offered the chance that he would not have come to suffer, his present psychiatric condition. The appellant acknowledged that the reports of Drs Spragg and Strum provided no expert evidence to that effect, and the respondent submitted that there was "absence of evidence or the availability of evidence to demonstrate that the intervention would have reduced or ameliorated or in some way benefited the plaintiff such that he wouldn't have the outcome that he now has". 22 As appears from the discussion in Yu v Speirs [2001] NSWCA 373 at [34]–[55], the extent to which a plaintiff claiming an extension of a limitation period under s 60G of the Act must make out his cause of action has been influenced by the requirement in s 58(2)(b) of the Act that there be evidence "to establish the cause of action". No such words appear in s 60G, however, and whatever is required by way of making out the cause of action is part of establishing that it is just and reasonable that the limitation period be extended. 23 It would be wrong to impose words which do not appear in the Act, and any form of words must be subservient to the question posed in the Act in the phrase "just and reasonable". The test of showing a viable cause of action is found in the cases, but is only one of the forms of words to be found. With respect, it is not particularly helpful: viability can be as a matter of pleading, and if not what level of proof that facts are available or of the facts themselves is necessary for viability? 24 Whatever form of words be used, the test is not a demanding one, and can be negatively expressed that it would not be just and reasonable to extend the limitation period when there would be no utility because the plaintiff's claim must fail: cf Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 508 per Kirby P. Perhaps stemming from Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 564, where Rogers AJA referred to "the obligation to show that if permitted to bring the action, evidence will be available to show a cause of action", words to that effect have also been used. Reasonable inferences can therefore be drawn. 25 In Rutter v State of New South Wales [2005] NSWCA 231 McColl JA, with whom Handley JA and Hunt AJA agreed, took from Yu v Speirs at [17] that in order to satisfy the requirement that it is just and reasonable to order the extension of a limitation period the plaintiff "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". This cannot mean more than that the Court should be satisfied that the plaintiff has a reasonable prospect of success on the ultimate hearing. This may provide some guidance, but the question remains: what is just and reasonable in all the circumstances? 26 The respondent's submission went to absence of evidence. It did not suggest that a cause of action was in principle unavailable, which would have been a difficult submission (see New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583). 27 I do not think the respondent contested that traumatic events of the kind to which the appellant was exposed could cause psychiatric injury to a police officer such as the appellant. In any event, it is readily to be inferred that they could, not only from cases with which the Court is familiar but from Police Commissioner's Instruction 12 and from the Task Force Alpha Report in evidence before the trial judge. In my opinion it is also to be inferred from those documents that evidence would be available that training, education, and monitoring could enable a police officer better to cope with traumatic events, and that intervention, if necessary thrust upon the police officer, may prevent or ameliorate the suffering of psychiatric injury; indeed, it can be inferred that evidence would be available that as a result of intervention a police officer might be re-assigned so as not to encounter further traumatic events if it be thought that there is sufficient risk of psychiatric injury. 28 It seems that Police Commissioner's Instruction 12 was issued in 1988. It states that where police had been involved in shooting incidents or vehicular other accidents in which persons had been killed or seriously injured, the Police Welfare Unit "is to liaise with the Psychology Unit and the Police Medical Branch to arrange appropriate counselling for staff involved." It continues -

"In relation to these and other incidents, e.g. major disasters, Police exposed to danger for extended periods, gruesome or distressing incidents, the Unit can provide individual support or team debriefings, when requested, in order to 'talk through' people's reactions to the incident.

If supervisors feel that their staff might be personally affected by a work related incident, they are to contact the Psychology Unit in order that an appropriate debriefing can be organised.

These debriefings are confidential and can be of considerable benefit."

29 The Task Force Alpha report bears the date 30 September 1992. Chapter 1 is headed "Police Officer Stress". It includes that a certain amount of positive stress is good but too much stress "will have a negative effect and, in addition, certain experiences in themselves can be negatively stressful". It refers to a study concluding that stress "can be reduced more by focussing on the frequent routine situations during training than by intensive training for the exceptional situation". 30 In Chapter 3, headed "Organisational Management of Stress", it sets out "Proactive Strategies for Responding to Stress", one of which is "stress inoculation" to reduce propensity to stress, involving officers "knowing their own limits, needs, reactions and abilities, on the understanding that knowing themselves also makes them better able to deal with others such as members of the public and police colleagues and supervisors". Then it sets out "Reactive Strategies for Responding to Stress", one being counselling - "Police officers have always felt ambivalent about counselling. In an environment where confession of stress is often seen as tantamount to personal weakness, police officers have been reluctant to visit counsellors. They feel that once it is known that they have been counselled, they may jeopardise their promotion, or that patrol partners will no longer consider them competent support in difficult situations. These feelings remain evident, even though counselling programs have been increasingly accepted by police organisations as an appropriate means of managing stress. The corollary is that officers themselves need to know that under certain circumstances, getting help is the only sensible thing to do (Schreiber & Seitzinger 1985), and then they need to be taught how to recognise when they need help and where they should go to access it. Programs include counselling on alcohol abuse, family problems, and traumatic experiences such as post-shooting anxiety, severe injury or death of a partner. … " 31 Chapter 4 is headed "Organisational Management of Physical Trauma", and says that it turns to "strategies for dealing with severe physical trauma which flows from physical assault or other danger" and what police can do "to be safer, and to reduce the negative outcomes of severe physical trauma". There is extensive discussion of post traumatic stress syndrome, and in that connection it is said that recovery from trauma "is aided by prompt de-briefing" which gives an early opportunity to talk, and that because police officers are often in the category of persons reluctant to seek help there must be "the implementation of a proactive outreach program". It says that the assistance of mental health professionals should not be invoked to the exclusion of other sources of help, and - "The point has been made that police officers tend to have a feeling of invulnerability, which derives from feelings of knowing how to do the job, and how to do it without being hurt. Sooner or later, however, a traumatic event, or a series of less threatening but cumulatively damaging events, do cause hurt of various kinds, which challenge this feeling of invulnerability . When this occurs, officers need direct help, as just discussed." 32 These publications date from relatively late in the appellant's police service, and are not immediate expressions of psychiatric expertise. But they refer to what appear to be professional studies published in preceding years, and suggest, in my opinion, that evidence would be available that even in the 10 years or so prior to 1992 it was recognised that intervention of the kind pleaded by the appellant could prevent or ameliorate the suffering of psychiatric injury. 33 The respondent submitted that, even so, there was no evidence that the appellant as an individual might have benefited from training, education and monitoring. However, the instruction and the report must have been issued and prepared because compliance would be expected to benefit police officers exposed to traumatic events, the appellant being in that category, and again it should be inferred that evidence would be available applying what they recognised to the appellant. 34 In this connection it may be added that, although sparse, there was some evidence that the traumatic events prior to the Town Hall event had an effect on the appellant's psychological state. His statement said of a mid-1980's event involving search for the head of a boy who killed himself by decapitation on a railway line that he "found it very hard to get to sleep at night thinking about it and wondering why, and I have always thought about it a lot", and said of a 1987 quadruple murder of four young girls that "I still think constantly of these four young girls and pass their home on a constant basis". There were other suggestions of understandable reactions in the period prior to the Town Hall event. Dr Spragg's report includes the general history, "He first began to experience difficulties in the mid to late seventies". There was on the evidence room for intervention against the risk of psychiatric injury to the appellant. 35 Reverting to what is just and reasonable, in my opinion the evidence sufficed to establish utility in extending the limitation period, such that extension would in the circumstances be just and reasonable.

The result 36 Extension of the limitation period is fundamental to the appellant's prosecution of the proceedings, and leave to appeal should be granted. It was not submitted that, if this Court differed from the trial judge's view as to a viable cause of action, for some other reason it should be decided that it was not just and reasonable to extend the limitation period. Nor was it submitted that the discretion remaining under s 60G(2) should be exercised against extension. In my opinion, an extension of the limitation period should be ordered.

Costs 37 The appeal papers did not reveal what costs order, if any, was made by the trial judge. If, as would be the likely order accompanying its dismissal, he ordered the appellant to pay the respondent's costs of the notice of motion, that order cannot be supported by the dismissal. 38 The respondent submitted, without developing the submission, that the appellant should pay its costs below in any event. The appellant made no submission to the contrary, and in the absence of argument I take him to have accepted that the position said in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at [121] ordinarily to apply should be given effect. There is thus no occasion to question that position, which was taken up in Commonwealth of Australia v Lewis [2007] NSWCA 127 at [95] but see Commonwealth of Australia v Smith [2005] NSWCA 478 at [159]-[160] (Santow JA), [213]-[221] (Basten JA) and The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 34 at [109]-[111] (McColl JA), [144]-[148] (Basten JA). When it is not known what order, if any, was made by the trial judge, the practical course is that this Court set aside any order as to the costs of the notice of motion made by the trial judge and make its own order. 39 The respondent should pay the appellant's costs on appeal. 40 I propose the orders -

1. Grant leave to appeal and direct that the notice of appeal be filed within seven days.

2. Appeal allowed.

3. Set aside the order dismissing the notice of motion filed on 8 December 2004 and in lieu thereof order that the limitation period for the appellant's cause of action pleaded in the amended statement of claim filed on 21 September 2007 be extended up to and including that date.

4. Set aside any order as to the costs of the notice of motion made by the trial judge and order that the plaintiff pay the defendant's costs of the notice of motion.

5. Order that the respondent pay the appellant's costs of the application for leave to appeal and the appeal. 41 IPP JA: I agree with Giles JA. 42 MACFARLAN JA: I agree with Giles JA. **********

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