Steven James Gill v Commonwealth of Australia [1999] ACTSC 64 (22 June 1999)

Last Updated: 6 October 1999

Steven James Gill v Commonwealth of Australia

[1999] ACTSC 64 (22 June 1999)

CATCHWORDS

LIMITATION OF ACTION - in 1986 "one man" bus collides with pedestrian and driver suffers psychological and/or psychiatric injury - driver paid worker's compensation - common law rights to damages "abolished" by statute in 1988 - statute declared invalid by High Court in 1994 - bus driver sues in 1995 for nervous shock arising from failure to provide conductor and for failure to supply counselling and treatment - defendant pleads statute of limitations - plaintiff applies for extension - whether actual prejudice to defendant - comparative weakness of plaintiff's claim - application refused.

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44

Limitation Act 1985 (ACT), s 36(3)

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383

Commonwealth of Australia v Williams [1999] FCA 703

Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297

Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471

Taylor v Commonwealth of Australia [1997] ACTSC 97

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Sydney City Council v Zegarac (1998) 43 NSWLR 195

Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701

Harnett v Fisher [1947] UKHL 2; (1927) AC 573

S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

Cubillo v Commonwealth of Australia [1999] FCA 518

Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

No SC 383 of 1995

Judge: Miles CJ

Supreme Court of the ACT

Date: 22 June 1999

IN THE SUPREME COURT OF THE )

) No SC 383 of 1995

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STEVEN JAMES GILL

Plaintiff

AND: COMMONWEALTH OF AUSTRALIA

Defendant

ORDER

Judge: Miles CJ

Date: 22 June 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. This is an application made by notice of motion dated 12 May 1999 that the limitation period for bringing the plaintiff's action be extended to 6 June 1995, that date being the date of the issue of the writ.

2. The statement of claim attached to the writ pleads the plaintiff's claim as follows:

"1. The plaintiff was at all material times employed by the defendant as a bus driver with "ACTION" in the Australian Capital Territory.

2. On 28 May 1986 whilst in the course of his said employment the plaintiff was the driver of an ACTION bus registered number CofA ZIB-575 when it was involved in a collision with a pedestrian in National Circuit at Barton in the Australian Capital Territory.

3. As a result of the collision the pedestrian died.

4. As a consequence of the death of the pedestrian the plaintiff suffered a severe psychological reaction.

5. At all material times after 28 May 1986 the defendant was responsible for medical treatment, rehabilitation and counselling of the plaintiff but failed to provide any or any adequate medical treatment, rehabilitation or counselling as a result of which the plaintiff has suffered injury.

6. The defendant was negligent in its failure to provide any or any adequate medical treatment, rehabilitation or counselling thereby causing the injuries of which the plaintiff complains.

7. Further, the system of work devised and maintained by the defendant required the plaintiff to drive the bus which he was driving at the time of the accident without a conductor or observer and required the plaintiff to be responsible for the safety and welfare of those on the bus at the same time as driving the bus to a timetable set by the defendant.

8. As a consequence of his having to observe those on the bus as passengers as well as keep a lookout whilst driving the bus the plaintiff's attention was momentarily diverted thereby causing the accident and the subsequent injury to the plaintiff.

9. The defendant was negligent in the system of work devised and maintained by it thereby causing the injuries of which the plaintiff complains."

3. A defence was filed on 2 November 1995 and amended on 21 April 1999. The amended defence reads as follows:

"1. The defendant admits paragraphs 1 and 2 of the Statement of Claim.

2. The defendant does not admit paragraph 3 of the Statement of Claim.

3. The defendant denies paragraphs 4, 5, 6, 7, 8 and 9 of the Statement of Claim.

4. Further the alleged cause of action did not accrue within six years before the commencement of these proceedings and became and was barred on and after 29 May 1992 by operation of section 11 of the Limitation Act, 1985.

5. Further to the extent that the plaintiff, in these proceedings, claims damages in respect of an injury sustained by him in the course of his employment after 1 December 1988 in respect of which it is alleged the defendant would be liable, these proceedings are not maintainable with respect to those damages by reason of the plaintiff's failure to elect in writing to institute these proceedings against the defendant before these proceedings were commenced.

6. If, which is denied, the plaintiff sustained injury and suffered loss or damage as alleged in the Statement of Claim, then such injury, loss and damage was caused by or contributed to by the plaintiff's own fault and contributory negligence."

4. No reply has been filed.

5. The allegations in the statement of claim are verified in an affidavit of the plaintiff sworn 7 May 1999. He states also that at the time of impact with the pedestrian he "heard a thump and pulled up straight away and discovered a woman who was lying there not moving". He said further "I thought she was dead then and there". He went home and drank himself to sleep. He awoke next morning to learn that the pedestrian had died. He became anxious and moody and began to drink heavily. He made an attempt at suicide in February 1987 and thereafter began receiving psychiatric attention. After a variety of jobs he returned to bus driving in 1988. He found it "difficult" and, after a narrow miss with another pedestrian, quit bus driving altogether in March 1992. At about that stage he approached his solicitors for legal advice in relation to any entitlement he might have arising from the incident. He also saw Dr Veness, a consultant psychiatrist. That, according to his affidavit, was in June 1992, but according to the report of Dr Veness, it was on 27 August 1992. He told Dr Veness that he was claiming compensation from a work-related injury of a psychological nature sustained as a result of a motor vehicle accident in the course of his work as a bus driver in May 1986.

6. According to Dr Veness' report, the plaintiff also told him that he had been charged with dangerous driving or negligent driving or both, to which he had pleaded guilty, apparently without legal representation although after legal advice.

7. Dr Veness concluded that the plaintiff had as at 27 August 1992 psychiatric problems of depression and anxiety which were "a direct result of the trauma of the accident and its aftermath". The condition was so severe that Dr Veness saw very little prospect of any return to work as a driver of any kind. Thus expressed by Dr Veness, the plaintiff's condition fits neatly into the description of the ingredients of the common law action for damages for "nervous shock", the essence of which is an allegation of foreseeable injury of a psychological or psychiatric nature only, as described in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549. The facts themselves are closer to those in Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383.

8. During the course of the above events there were certain developments in the law relating to the rights of persons to claim damages against the Commonwealth as a result of work-related injuries. These developments were summarised in the decision of the Full Court of the Federal Court of Australia in Commonwealth of Australia v Williams [1999] FCA 703:

"5. On 1 December 1988 (ie after the limitation period for the respondent's claim had expired on 27 May 1988) the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into operation. By s 44 of that Act, actions by Commonwealth employees for injuries arising out of their employment were barred, whether the injuries occurred before or after the commencement of the section.

6. On 9 March 1994 the High Court handed down its decision in Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297. A majority held that s 44 was invalid on the ground that it effected an acquisition of property otherwise than on just terms, contrary to s 51 (xxxi) of the Constitution.

7. The claim that the High Court dealt with in Georgiadis had not been statute-barred by a limitation period. The Court expressly confined its decision to such a cause of action: 179 CLR at 308. The position of plaintiffs. like the present respondent, whose claims were statute-barred was dealt with in the later case of Commonwealth v Mewett. On 1 November 1994 Foster J dismissed the Commonwealth's motion seeking to strike out the whole of the proceeding on the ground that Mr Mewett had no reasonable cause of action. Foster J granted leave to appeal and reserved for a Full Court the question whether s 44(1) was invalid in its application to Mr Mewett's claim. On 31 August 1995 the Full Court answered that question in the affirmative: (1995) 59 FCR 391. The High Court affirmed this decision on [1997] HCA 29; 31 July 1997: (1997) 191 CLR 471."

9. As it happened, the Full Court in Williams, although allowing leave to appeal against the primary judge's decision to extend the time, dismissed the appeal thus allowing the extension of time to stand. In that case the incident giving rise to liability (chemical poisoning) occurred on 27 May 1982. The period in which to sue was extended until 23 December 1997, that being the day after the plaintiff issued an originating application. The plaintiff was not aware of a possible connection between the incident and the injury until 1990. He consulted solicitors in 1994 as a result of an advertisement placed by the solicitors following the decision of the High Court in Georgiadis. Late in 1994 the plaintiff was advised of the proceedings (presumably the decision of Foster J at first instance) which were eventually decided by the High Court in Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471. On 4 December 1996 the plaintiff's solicitors notified the Commonwealth that it was his intention to make a claim for damages. In the joint judgment the Full Court said at [33]:

"The one striking feature in this case, the very long period of delay, is in a sense balanced by two other factors, namely, the late awareness to the respondent of the possible connection between his condition and the accident and the complication arising from the purported statutory abolition of common law rights."

10. In Taylor v Commonwealth of Australia [1997] ACTSC 97 where the plaintiff alleged injury on 25 May 1985, Higgins J extended the time to 15 November 1994, the date of commencement of proceedings. The plaintiff had no knowledge of his rights to claim damages at common law until he sought legal advice upon the suggestion of his union on 25 October 1993. There was no finding about what the advice, if any, was. His solicitor wrote on 5 April 1994 after the decision in Georgiadis, advising him that as a result of the decision he might be entitled to make a common law claim. After the filing of a defence raising the statutory bar, there was agreement between the parties that the plaintiff would not apply for an extension of time until the High Court handed down its decision in Mewett. The delay until that stage was apparently explained by the plaintiff's ignorance of his rights. Furthermore, delay from 25 October 1993 to 5 April 1994, when the decision in Georgiadis was handed down, was explained by the additional fact that it was reasonably assumed by legal practitioners that s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Comcare Act) had abolished the rights of Commonwealth employees to claim damages from the Commonwealth for work-related injuries. In granting the extension his Honour observed that the plaintiff acted properly and reasonably after becoming aware on 5 April 1994 of the possibility of taking action and that it was not suggested that there was any significant failure in this respect.

11. I mention these two decisions, first, because any statement of principle by the Full Court of the Federal Court is of course binding and, secondly, because, in any event, there should be consistency among decisions exercising the discretion whether or not to grant leave, especially where there is a particular feature common to the decisions. What the Full Court called "the purported statutory abolition of common law rights" is such a common factor in the cases just referred to and in this case. That said, however, the application must be considered and the discretion exercised according to the particular facts of the case, as they relate to the enumerated statutory criteria set out in s 36(3) of the Limitation Act 1985 (ACT) (the Limitation Act), and the overall requirement that the plaintiff show that it is just and reasonable to extend the period in which to sue.

12. Before deciding whether or not the plaintiff has satisfied the Court that it is just and reasonable to extend the time, the Court must have regard to the statutory criteria set out in s 36(3) of the Limitation Act.

(a) Length and reasons for delay on the part of the plaintiff.

(b) The extent to which having regard to the delay there is likely to be prejudice to the defendant.

13. These may be dealt with together. It is submitted on behalf of the plaintiff that, having regard to the long history of payments of compensation under the Comcare Act, the defendant has been on notice of the plaintiff's claim ever since the injury and that any protestation made by the defendant at this stage about prejudice arising from inability to find documents and witnesses should be given little weight. On the other hand, the affidavit of Mr Bayliss, for the defendant, of 21 May 1999 states that the defendant (or government authorities for which it is responsible) has maintained "routine destruction of records that are not thought to remain of any contemporary importance" after six or seven years from the date of their creation. Mr Bayliss deposes to anticipating difficulty in finding records relating to the plaintiff's "pre-incident fitness for work" and the plaintiff's "experience during redeployment".

14. Interrogatories administered to the defendant addressing questions about collisions between the defendant's buses and pedestrians during the period of up to ten years before 1986 have elicited a very limited response. The defendant asserts that it is unable to answer the questions after due search of records and inquiries of its servants and agents, save that it believes that:

1. From 1 June 1980 to 28 May 1986 there were 28 such incidents.

2. From 1 January 1983 to 28 March 1986 there were at least four incidents involving non-fatal injuries to pedestrians, and

3. Three incidents which resulted in fatal injuries to the pedestrian.

15. Mr Bayliss' affidavit is supported by that of Mr John Patrick Fisher, sworn 21 May 1999 on the matter of the destruction of files.

16. It is submitted on behalf of the plaintiff that the defendant is not entitled to rely on any actual prejudice caused by its own destruction of files and that Mr Bayliss' forecast of difficulties is unduly pessimistic.

17. The length of the delay has already been set out. The reasons for the delay are essentially the ignorance of the plaintiff of his rights to claim damages and the assumption by members of the legal profession until the High Court decisions in Georgiadis and Mewett that a person in the position of the plaintiff had no claim for damages against the Commonwealth because of the provisions of s 44 of the Comcare Act.

18. Since the decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, much has been written judicially and otherwise about presumptive prejudice and actual prejudice to the defendant, and defendants in particular have tended to rely on the statement of McHugh J at 555 that when actual prejudice of a significant kind is shown, it is difficult to conclude that the legislature intended that the extension period should "trump" the limitation period.

19. In the present case the defendant sought to show through the affidavit evidence already referred to that actual prejudice arises from a loss of opportunity to identify and interview witnesses, so that a fair trial is no longer possible or even likely.

20. However, it is important to recognize, as Kirby J emphasized in Brisbane South Regional Health Authority at 569-570 and Mason P likewise in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199, that the statutory criteria are not identical in every State and Territory and the factual circumstances are infinitely various.

21. In Brisbane South Regional Health Authority at 549, Toohey and Gummow JJ stated that they found difficulty with the notion of weighing prejudice to an applicant (plaintiff) against prejudice to a respondent (defendant). In Zegarac two of the members of the NSW Court of Appeal took the view that under the terms of the New South Wales legislation which, for present purposes, is not significantly different in effect from that of the Limitation Act, it was not permissible to engage in such a weighing exercise. Hence whilst judicial views at the highest level differ about whether it is permissible to balance prejudice or to fail to balance prejudice as between defendant and plaintiff, there appears to be consensus that if the result of delay is that a fair trial to the defendant cannot be assured, then the plaintiff cannot succeed in having the extension granted. That, so it appears to me, is the appropriate essential test.

22. Such a test was applied in Lorenzo & Sons Pty Ltd v Campbell [1999] FCA 701, by a Full Court of the Federal Court of Australia in which it was held that there was appellable error on the part of the primary judge in failing to take into account certain evidentiary features of the case. Those features, in the opinion of the Full Court, showed that the defendant (the owner of the motor vehicle which allegedly reversed into the plaintiff, a pedestrian parking inspector) was sufficiently prejudiced by being unable to investigate properly the circumstances of the collision and, in particular, the contribution of the plaintiff. In granting leave to appeal, the Full Court said that the error in relation to prejudice and delay involved substantial injustice to the defendant.

23. It is to be inferred that in allowing the appeal and refusing the extension of time, the Full Court was of the view that a fair trial for the defendant would be unlikely.

24. The likely issues at trial in the present case are much more difficult than in a case like Lorenzo. The factual context is extraordinary. In chronological order of the accrual of the causes of action (the reverse of the order of pleading) the plaintiff's claim may be restated as follows:

(a) that it was foreseeable on the part of the Commonwealth as the plaintiff's employer, that:

(i) the driver of a one-man bus might have his or her attention distracted by the activity of a passenger;

(ii) when the driver's attention was so distracted, the bus might collide with the pedestrian causing severe injury or death to the pedestrian;

(iii) that the experience in (ii) would cause psychological or psychiatric injury to the driver.

(iv) that the magnitude of the risk of (i) and (ii) above was so great that the duty of care could not be discharged unless a conductor was engaged to be on the bus to attend to the activity of passengers, leaving the driver to concentrate on driving undistracted by such activity.

(b) that whether or not the defendant is liable under (a), it was foreseeable on the part of the Commonwealth that:

(i) a bus driver might suffer psychological or psychiatric injury in the course of his or her driving duties;

(ii) when a driver suffered injury of the nature described in (i), the nature or extent of the injury was likely to be aggravated unless the driver was provided with post-traumatic counselling, psychological care, psychiatric treatment and the like;

(iii) the magnitude of the risk in (i) and (ii) above was so great that the defendant's duty of care to the plaintiff could be discharged only by the defendant providing effective post-trauma counselling, psychological care, psychiatric treatment and the like.

25. In my view, for these issues to be properly addressed, the defendant would need to investigate the circumstances of the incident on the bus on 28 May 1986 and of the collision with the pedestrian, and having then done so, investigate incidents of a similar nature which had occurred in the Territory during the period that it properly judged relevant prior to that date. Similar investigation would need to be made into the extent to which such incidents had given rise to injury to the driver of a psychological or psychiatric nature only and the extent to which counselling and so forth was effective to avoid or minimise such injury.

26. It might well be that the issues raised by the investigations carried out with regard to the plaintiff's claim would require the defendant to undertake further investigation in the Australian public transport industry generally as to relevant incidents and practices prior to or possibly even after 28 May 1986. It is a matter of common knowledge that it was once the practice that public transport carriers in Australia provided conductors on buses and that the practice is not, or is seldom, followed now. However, the practice as at 28 May 1986 is not a matter of common knowledge and not a matter within the knowledge of the Court.

27. It may well be that the plaintiff cannot succeed on either cause of action without investigating the same issues and calling favourable evidence on those issues. It may well be that in that sense the likely prejudice to the defendant occasioned by the delay does not outweigh that faced by the plaintiff. However, if it is the law, as I understand it to be, that a balance of prejudice generally is, at worst, impermissible or, at best, unnecessary, it follows that I should not weigh the likely prejudice to the defendant caused by the delay against the potential prejudice to the plaintiff also so caused. I think it sufficient to say that the issues raised by the nature of the plaintiff's case are such that the delay from the time of the accrual of either cause of action to the date of commencement of proceedings is such that the defendant is likely to suffer substantial prejudice in the investigation of relevant issues and that a fair trial to the defendant is unlikely.

28. I should add that the delay in prosecuting the claim for failure to provide counselling and treatment may not be as great as the delay in prosecuting the claim for nervous shock, because the former claim is based on omissions which were not complete on the day of the collision. I understand that the claim for nervous shock is based on a cause of action accruing on 28 May 1986. On the other hand, I do not know when it is alleged that the cause of action alleging a failure to provide counselling and treatment is alleged to have accrued. The issue raised by par 5 of the amended grounds of defence appears to anticipate a claim by the plaintiff that the plaintiff may rely upon injury sustained by him in the course of his employment after 1 December 1988. The failure of the plaintiff to specify in the statement of claim, or to otherwise make clear on the evidentiary material available on the application, when this latter cause of action accrued does not assist the plaintiff to establish that the extension of time is just and reasonable.

(c) Conduct of defendant after the cause of action accrued

29. Neither counsel addressed on this issue (as appears to be usual in these applications). Unless there is a principle that at least in some situations a defendant has a duty to inform a potential plaintiff of facts relevant to a potential cause of action, this aspect appears to me to be irrelevant. However, I do not know of any such principle and do not intend to try to find one. It may be that where a defendant has made timely information available to a potential plaintiff so that the plaintiff is appraised of his or her rights but chooses to ignore them until after expiry of the limitation period, it would be difficult to conclude that it was fair or just to allow the plaintiff an extension of time, but that does not arise and, as far as I am aware, has never arisen.

(d) Duration of disability

30. It is necessary to say that I am of the view that the word "disability" means disability imposed by law and does not mean simple physical or mental impairment. The history of the law of limitation of actions indicates that the period of limitation is treated as ceasing to run in certain specified situations where the plaintiff might not be expected, in the ordinary course of events, to be in a position to bring proceedings or to make a decision about bringing proceedings, for instance, infancy, mental illness or absence from the jurisdiction: see Harnett v Fisher [1947] UKHL 2; [1927] AC 573. By s 8(3)(b) of the Limitation Act a person is under a disability if, inter alia, "he or she is, for a continuous period of 28 days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of intellectual retardation or disability, mental illness or disorder, brain damage, senility or physical disability." On the evidence the present plaintiff has not been under disability.

(e) & (f) Extent to which plaintiff acted promptly and steps taken by plaintiff to obtain advice.

31. These have been dealt with already.

32. The statutory criteria are not exhaustive. A further matter, which it is proper to take into consideration, is the relative strength or weakness of the plaintiff's case: S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380. Clearly there is no point in the Court extending the time and forcing the defendant to meet a claim which, on proper analysis, appears hopeless. Nor, on the other hand, is it necessarily just and reasonable to extend the period simply because it appears that the defendant has no defence apart from the limitation period. Although it has been suggested that it is sufficient for a plaintiff to show that the case is reasonably arguable, I do not think that reasonable arguability constitutes a threshold test which it is sufficient to overcome. What is relevant is the relative strength or weakness of the plaintiff's case looked at broadly. Strength, taken together with other factors, may assist in arriving at a conclusion that it is just and reasonable to extend the time; weakness may indicate the contrary.

33. Whilst it cannot be said that the plaintiff's claim on either one of the two causes of action pleaded is unarguable, it must be said that neither claim is strong. In the factual context the claims appear unusual if not unprecedented. Lack of precedent is of course not necessarily a reason for inevitable failure of a plaintiff's claim. Sometimes issues of public interest might suggest that the period be extended: see for instance Cubillo v Commonwealth of Australia [1999] FCA 518 (the Stolen Generation case). However the comparative lack of strength in the present plaintiff's case tends to support the proposition that it would not be fair or reasonable to extend the period. This, taken into account with the likely prejudice to the defendant caused by the delay and the other factors already referred to, confirm that it would not be just and reasonable to extend the period in which the causes of action pleaded in the plaintiff's statement of claim may be brought.

34. It should not be overlooked that the dismissal of an interlocutory application by a plaintiff to extend a limitation period is not to be equated with a successful application by a defendant for summary judgment. In Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 a majority of the High Court said at 533-534:

"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

35. No doubt the plaintiff will take advice whether, notwithstanding the dismissal of his application to extend the limitation period, he should pursue his claim to a hearing which, as I understand it, is fixed for hearing in the very near future.

36. The application will be dismissed. Unless the parties wish to be heard, I propose to order that the applicant plaintiff pay the defendant respondent's costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 22 June 1999

Counsel for the plaintiff: Mr A J Bartley, SC with Mr J Evans

Solicitor for the plaintiff: Gary Robb & Associates

Counsel for the defendant: Mr B D Bongiorno, QC with Ms P Burton

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 21 May 1999

Date of judgment: 22 June 1999