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The Clock is ticking…until time’s up!

13 August 2020 | General Insurance

The Supreme Court of NSW has refused a plaintiff’s application for an extension of time to commence proceedings claiming damages for psychiatric injury arising out of his exposure to traumatic incidents during his service with the NSW Police Force.

In Issue

  • When a court will exercise its discretion pursuant to section 60G of the Limitation Act 1969 (NSW) to extend a limitation period.

The background

The plaintiff joined the NSW Police Force as a trainee police officer on 18 May 1987, was later confirmed in the rank of constable and then transferred to Tamworth on 1 April 1991. He remained stationed there until he was medically discharged in 2002 for reasons unrelated to his claimed psychiatric injury.

In 1995 the plaintiff injured his right arm whilst on duty and undertook light duties while recovering from his injuries. He suffered aggravations of that injury in January 1999 and again in February 2000. He decided to seek a medical discharge from the Police Force due to the arm injuries, his mental condition and because he had received counselling about his work performance. His application for discharge was based solely on the arm injury. His last day on actual police service was 14 February 2000. Although he was medically retired from the police force for his arm injury, he alleged that his psychiatric symptoms, caused by exposure to multiple traumatic incidents during the course of his service, and the threat of what he regarded as unreasonable disciplinary action, equally contributed to his decision to seek retirement.

The plaintiff had retained lawyers in 1996 in relation to a lump sum compensation claim for his right arm injury. He sought legal advice from them again in 2001 to assist with his application for medical discharge and later when he sought an increase in the rate at which his pension was paid. The plaintiff did not discuss his mental trauma with his solicitors.

In 2011, the plaintiff sought treatment for and was diagnosed with post-traumatic stress disorder (PTSD). His condition further deteriorated in 2014 when he began to have suicidal thoughts. In 2014, a psychiatrist confirmed the diagnosis of PTSD.

The plaintiff sought advice from new lawyers in 2015 in respect of his psychological symptoms and proceedings against the defendant were commenced on 9 September 2015. He sought an extension of time to pursuant to s 60 of the Limitation Act 1969 (NSW) to bring proceedings claiming damages for psychiatric injury arising out of his service with the NSW Police Force.

The decision at trial

Section 60G of the Limitation Act 1969 is subject to section 60I which relates to a plaintiff’s knowledge of the personal injury and the connection between the plaintiff’s injury and the defendant’s act or omission. Justice Campbell found that the latest day on which the plaintiff’s cause of action could have arisen was his last day of actual duty. Despite His Honour finding that the plaintiff:

  • did not know he had suffered a personal injury until he consulted with a psychiatrist in 2014; and
  • was unaware of the specific acts and omissions which could be relied upon as  constituting negligence in 2015,

he refused the plaintiff’s application. Justice Campbell found that the plaintiff could have raised his mental health issues with his former solicitor after he had been medically discharged from the Police Force. He held that the plaintiff ought to have become aware of the facts contemplated by section 60I(1) at the latest by February 2005. When he seriously contemplated making an application for medical discharge in February 2000 he knew that his symptoms were such that he could not continue serving as a police officer. Once his application for discharge form the Police Force was successful, there was no reason why he could not, or should not, have raised the matter with the solicitors he had already consulted to seek their advice about his rights and entitlements to compensation and damages for his psychological symptoms. The court found his explanation for not raising the matter to be unconvincing, but even accepting it, it did not explain why he failed to follow the matter up when the fear of the stigma associated with psychological injury could no longer be operative because he was no longer a serving officer.

Although it was not necessary to do so, the court considered whether it would have exercised its discretion under s 60G in the plaintiff’s favour to extend the limitation period, and held that it would not do so. In the court’s view, it would not have been just and reasonable to extend the limitation period in circumstances where the plaintiff failed to diligently prosecute his cause of action. Also, despite the fact that the defendant was not able to point to actual prejudice because of the delay, the difficulty of defending a case involving multiple incidents extending back for more than a quarter of a century would be insurmountable. These difficulties provided compelling evidence of presumptive prejudice, which the plaintiff did not rebut. An alternative argument that certain provisions of the Workers’ Compensation Act 1987 (NSW) justified a grant of leave to commence the proceedings was rejected.

The plaintiff’s application for an extension of time was refused and his proceedings were dismissed with a costs order made against him.

Implications for you

This decision is a reminder that a plaintiff is required to exercise forensic diligence in advancing his own interests in bringing a case for damages.

Jones v State of New South Wales [2020] NSWSC 830

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Navjeet Tut

Navjeet Tut

Senior Associate