Gill v Commonwealth of Australia [1999] ACTSC 81 (30 July 1999)

Last Updated: 11 May 2005

Steven James Gill v Commonwealth of Australia

[1999] ACTSC 81 (30 July 1999)

CATCHWORDS

LIMITATION OF ACTION - in 1986 in course of employment ACTION bus driver suffers psychological and/or psychiatric injury - common law rights of employees to damages against Commonwealth "abolished" by statute in 1988 - provision declared invalid by High Court in 1994 as it related to rights accrued before 1988 - bus driver sues Commonwealth in 1995 for damages for further injury arising from failure to supply post traumatic counselling and treatment between 1986 and 1988 - defendant pleads statute of limitations - plaintiff applies for extension - whether time ran from 1988 to 1994 - it did - whether delay causes prejudice to defendant - whether action brought against Commonwealth as employer or as Comcare - whether just and reasonable to extend the period - application granted.

Limitation Act 1985, s 11, s 36

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), s 44

Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394

Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

Commonwealth 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

Baker v Australian Asbestos Insulators Pty Limited [1984] 3 NSWR 595

Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443

No. SC 383 of 1995

Judge: Miles CJ

Supreme Court of the ACT

Date: 30 July 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: 30 July 1999

Place: Canberra

THE COURT ORDERS THAT:

1. On the undertaking of the plaintiff to file a fresh notice of motion within seven days seeking an extension of time in which to sue the defendant on the amended statement of claim, the time in which the plaintiff may so sue be extended until 28 days from today.

1. On 22 June 1999 I dismissed the plaintiff's application on a notice of motion dated 12 May 1999 for an extension of time in which to sue the defendant for damages arising out of the effect on the plaintiff of an incident occurring on 28 May 1986 and out of the consequences of that incident. The incident involved a collision between a bus driven by the plaintiff in the course of his employment and a pedestrian who died soon after. The plaintiff claimed damages in two separate causes of action. One, a claim in nervous shock arising from negligence on the part of the defendant (his employer) in failing to provide a conductor on the bus and so causing and contributing to the collision, and the other a completely separate claim in negligence in the defendant's failure to provide counselling, treatment and the like to the plaintiff in order to enable him to cope with the emotional trauma consequent upon the incident. Among the reasons given for refusing to extend the time for suing on the second claim as pleaded was the absence of any allegation in the statement of claim from which a conclusion could be drawn about when the cause of action accrued, except that it must have been on or after 28 May 1986.

2. The plaintiff has re-pleaded his claim and pursuant to s 36 of the Limitation Act 1985 (ACT) (the Limitation Act) seeks an extension of time to a date 28 days after the decision, assuming that the decision is in his favour. Procedurally the application comes before the Court as a restoration for hearing of the notice dated 12 May 1999 but both counsel accept that the application so made having been dismissed cannot be revived. Counsel for the plaintiff has undertaken to file a fresh notice of motion formally seeking the order just mentioned. The hearing of the present application proceeds on that undertaking.

3. The amended statement of claim is dated 29 June 1999 and is in the following terms:

"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 between 28 May 1986 and 30 November 1988 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.

Particulars of Negligence

In relation to medical treatment, rehabilitation and counselling

a. The defendant failed to ascertain the nature and extent of the psychological reaction suffered by the plaintiff.

b. The defendant failed to have any system whereby the plaintiff's immediate post traumatic psychological condition was monitored and assessed.

c. The defendant failed to take any or any sufficient steps to diagnose the plaintiff's post traumatic condition.

e. The defendant failed to debrief the plaintiff concerning the accident.

f. The defendant failed to inform itself of the plaintiff's post traumatic condition.

g. The defendant failed to provide the plaintiff with proper legal advice concerning his rights and liabilities after the accident.

h. The defendant failed to heed warnings provided by the plaintiff's behaviour that he was urgently in need of proper counselling, rehabilitation and medical advice.

i. The defendant continuously exposed the plaintiff to situations which further aggravated and exacerbated his post traumatic condition.

j. The defendant failed to redeploy the plaintiff so that he was not exposed to unnecessary risk of further injury.

Particulars of Out-of-Pocket Expenses, etc.

(to be advised)

AND the Plaintiff claims damages and interest pursuant to Section 69 of the Supreme Court Act."

4. The grounds of defence filed on 2 November 1995 and amended once on 21 April 1999 have not been amended in consequence of the amendment to the statement of claim. They should be set out again:

"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."

5. A reply was filed on 30 June 1999 in the following terms:

"1. In answer to Paragraph 1 of the Amended Defence the Plaintiff says:

i) The Defendant by its conduct after service of the Plaintiff's written Statement of Claim on 6 June 1995 is estopped from claiming prejudice in respect of any delay by the Plaintiff in pursuing his cause of action.

ii) By operation of law under Section 44 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 the plaintiff's cause of action was suspended/extinguished from 1 December 1988 to 9 March 1994 and this period does not count for reckoning the limitation period."

6. There is a preliminary question whether the issues raised by the reply are to be dealt with in the application to extend time. Counsel for the plaintiff concedes that the issues raised by the alleged estoppel in par 1(i) of the reply can be decided only in the light of evidence to be called at the trial of the action. (It may be noted that in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, Mason CJ at 406 spoke of the statuary provisions as to limitation period being deprived of effect by waiver.) On the other hand, the issue raised by s 44 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the Comcare Act), namely whether the defendant is entitled to raise the statutory bar at all in respect of the period 1 December 1988 to 9 March 1994 is not dependent upon evidence. It is a pure question of law. At common law time runs and continues once begun, subject to statutory exceptions: Prideaux v Webber (1661) 1 Lev 31, 83 ER 282; 1 Keb 204, 83 ER 900; Beckford v Wade (1805) 17 Ves 87; 34 ER 34. If it is correct as is alleged that the limitation period did not run between 1 December 1988 and 9 March 1994, then the relevant lapse of time from the earliest date on which the plaintiff's cause of action could have arisen, 28 May 1986, to the issue of the writ on 6 June 1995 was approximately three years and nine months, well within the statutory limitation of six years imposed by s 11 of the Limitation Act. If, however, time continued to run from 1 December 1988 to 9 March 1994, the plaintiff is well outside the limitation period since the latest date on which his cause of action could have accrued, according to the amended statement of claim was 30 November 1988. In that case an extension of time is necessary if he is to maintain his action.

7. I know of no authority, and none was cited, to the effect that, in order to obtain an extension of time in which to sue, a plaintiff must first prove that he or she is out of time. The possibility that the plaintiff's action may be out of time seems to me to be a discretionary factor, in that a court would not embark upon a determination of an application for extension of time if it was clear that no extension was necessary. On the other hand, to leave the determination of whether the claim is out of time until the trial is to contribute to further delay and the prejudice to one party or both that such delay usually brings. I bear in mind what the High Court said in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533-534, namely that it is undesirable that limitation questions should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases, and where 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. However, as I have a firm view about the application of s 44, and because the parties wish to have the question of the extension of time determined before the hearing of what will in any event be a complex trial, I shall proceed to determine the application at this stage.

8. It is necessary to paraphrase again what the Full Court of the Federal Court of Australia said in Commonwealth v Williams [1999] FCA 703. On 1 December 1988 the Comcare Act came into operation. By s 44(1) of that Act it was provided that:

"An action or other proceeding for damages does not lie against the Commonwealth ... in respect of -

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth ... would, but for this subsection, be liable (whether vicariously or otherwise) for damages ...

whether that injury ... occurred before on or after the commencement of this section."

9. It is common ground between the present parties that the plaintiff claims to sue for an injury sustained by him in the course of his employment with the Commonwealth. I think that it was also conceded that for the purpose of the present application the plaintiff's injury was one in respect of which the Commonwealth would but for s 41(1) be liable for damages. Thus it was not disputed that s 44(1) applies to the plaintiff's claim.

10. 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. The majority in that case 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. On 31 July 1997 in Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 the High Court held further that a limitation period was not determined by s 44 until the possibility of the extension of the limitation period had been exhausted. Toohey J, with whom McHugh J agreed, said at 514-515 that where the limitation period had not expired at the time s 44 came into force (as in the present case), the section could not affect a plaintiff's cause of action, for to do so would effect an acquisition of property other than on just terms. The fact that the limitation period later operated on the cause of action and the fact that the plaintiff seeks an extension of time does not alter the position. Gummow and Kirby JJ said in a joint judgment at 535 that a cause of action for damages in contract or tort upon which there has operated a bar of the kind imposed by a statute of limitations in traditional form still has "sufficient substance" to answer the constitutional description of property in s 51(xxxi) of the Constitution.

11. It is clear, in my view, that the decisions of the High Court in Georgiadis and Mewett did not change the law. The High Court did not "restore" a cause of action to the plaintiff which had been abolished or suspended when s 44 came into operation on 1 December 1988. The High Court declared that s 44 was invalid and accordingly had never had any effective operation. The plaintiff's cause of action, as it was immediately before 1 December 1988, continued despite the enactment of s 44 and subject to the statutory bar making it unenforceable six years after its accrual, unless extended by court order. There was no suspension of extinguishment of the plaintiff's cause of action between 1 December 1988 and 9 March 1994 and time continued to run during that period for the purpose of the statutory bar. It may be noted that no point was taken in Mewett that time did not continue to run and the High Court judgments do not address that issue.

12. There is no need to canvass again the principles applicable to the grant or refusal for the extension of time. I set them out as best I understand them when I handed down judgment on 22 June 1999. What has changed in the meantime is the nature of the plaintiff's case as pleaded. Before the amendment of the statement of claim, it was not possible to determine the date of accrual of the cause of action in negligence relying on failure to provide counselling and treatment. As now pleaded, the cause of action is alleged to have arisen between 28 May 1986 and 30 November 1988 (any alleged cause of action against the defendant arising thereafter would have been abolished by s 44). It is necessary to examine the cause of action with some care.

13. The particulars furnished under par 6 of the amended statement of claim indicate that the alleged omissions of the defendant, or some of them, were continuous or repeated over the period stipulated. For instance, the alleged failure to ascertain the nature and extent of the psychological reaction suffered by the plaintiff presumably occurred over the whole of the period, although it may be that the plaintiff would allow some lapse of time immediately after the incident on 28 May 1986 during which it could not be said that the defendant's failure was unreasonable. Again, the alleged failure to heed warnings provided by the plaintiff's behaviour presumably occurred continuously from the time such warnings were given, but the occasion of each warning would be a factor to be taken into consideration. Indeed it may well be that the plaintiff's allegations disclose not one but numerous causes of action. These are difficult but not entirely novel problems and must have occurred in other litigation over injury alleged to have been sustained as a result of industrial conditions, for instance, claims for asbestosis or mesothelioma.

14. They were touched on by Yeldham J in Baker v Australian Asbestos Insulators Pty Ltd [1984] 3 NSWLR 595, sitting on appeal from the Master who had granted an extension of time to the relatives of the deceased who had died of mesothelioma after working for various periods with five employers. His Honour dealt chiefly with the question whether there was a sufficient evidentiary basis to connect the exposure to asbestos during the employment by any one defendant with the fatal condition and cited with approval the passage from the decision of Hunt J in Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443:

"... What is left to be shown by the plaintiff in order to satisfy the requirements of s 58 was, in my respectful view, correctly stated by Gowans J ([1975] VR 619, at pp 630, 631) and by Kelly J ([1980] Qd R 350, at p 352) the plaintiff must make it appear that the evidence to establish his cause of action exists and that it is available to be adduced at the trial. The test is thus somewhat less exact than that which is applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury. A certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted. It was also conceded by the defendant (in my view, correctly) that once one cause of action was so identified, the provisions of Pt 20, r 4(5) in effect meant that a plaintiff could plead any other cause or causes of action based upon the same or substantially the same facts; so that there was accordingly no need in an order pursuant to s 58 to specify the precise cause of action in relation to which the limitation period was to be extended."

15. Although the provisions of the interstate legislation and the New South Wales Supreme Court rules do not apply to the present case, it seems to me that there is no reason why the principles underlying those provisions should not be recognized in an application under s 36 of the Limitation Act where the ultimate decision is whether it is just and reasonable to extend the time.

16. The next point to be made about the plaintiff's claim is that, although it looks like a typical action for damages brought by an injured worker against an employer, on closer analysis it is much wider in scope. Mr Bartley SC, for the plaintiff, did not avoid this issue in submissions. I understood him to say that, although the plaintiff's claim is primarily against the Commonwealth in its role as the plaintiff's employer, in which role it was known as ACTION, the claim will be pursued against the Commonwealth in any of its other manifestations, for instance, as Comcare, in which it incurred the responsibility of providing for the plaintiff's medical treatment, rehabilitation and counselling. It was submitted that par 5 of the statement of claim is cast widely enough to entitle the plaintiff to pursue his claim in that broad way and to that extent. I think that in the light of the New South Wales and Victorian decisions the submission is valid, although I would add that the defendant (and the Court) is entitled to particulars in much greater detail than those provided in the amended statement of claim.

17. The scope of the plaintiff's claim is therefore much broader than was appreciated at the time of the dismissal of the previous application for extension of time. This of course does not make it any easier for the defendant to meet the claim. However, for the purposes of the present application, the plaintiff must show that it is just and reasonable to extend the time and the judicial gloss put on the statutory requirement is that the plaintiff must show that the delay in bringing the claim is not such that the defendant is likely to be denied a fair trial. It is the prejudice sustained by reason of the delay, not the difficulty or complexity of the claim which is to the point. The difficulty or the complexity may be such that it aggravates the prejudice caused by the delay. As in the previous application, the defendant relies on the factual material then presented to support the submission on its path that the prejudice caused by the delay is such that it is not likely to receive a fair trial.

18. The affidavit material establishes that files which contained documents relevant to some of the issues were destroyed by officers of the Department of Urban Services of the Australian Capital Territory, which has since an unspecified dated in 1986 administered the operations of ACTION. It is also established that such destruction was a matter of routine practice.

19. The affidavit material was supplemented in the present application by cross-examination of Mr Russell Bayliss, the solicitor with the conduct of the matter on behalf of the defendant. By that cross-examination it was sought to establish and probably did establish that the affidavit as to documents sworn by Mr John Patrick Fisher on 13 August 1996 was deficient in that it made no reference to relevant documents which had been destroyed in accordance with the routine practice. However, I do not think that it established that the defendant was cavalier or careless in the destruction of documents and that the defendant is somehow estopped from relying on any prejudice caused by the destruction of documents. Not until the hearing of the present application could it have been envisaged for instance that Comcare documents relating to claims for psychological and psychiatric injury by other Commonwealth employees prior to 28 May 1986 were relevant, as they now appear to be.

20. On the other hand, the defendant has not established with clarity how the retention of destroyed documents would have assisted it to meet the plaintiff's claim as it is now pleaded, particularly as there is no longer a claim for nervous shock occurring as a result of the incident on 28 May 1986.

21. Mr Bayliss appeared to place particular emphasis on the absence of sick leave records prior to 26 June 1985 and the demonstrated inability of the defendant to find witnesses as to the plaintiff's condition prior to 28 May 1986. It was suggested that such records and such witnesses might tend to prove that the plaintiff was a person who would have suffered the psychological and psychiatric conditions of which he complains even if the incident of 28 May 1986 had not occurred. I agree that they may have shown such a pre-disposition on the part of the plaintiff, but I do not see how that appreciably assists the defendant on the issue of prejudice. The defendant takes the plaintiff as it finds him. The duty, if there was one, to provide treatment and counselling to the plaintiff for the effects of the trauma-inducing incident was not avoided by the plaintiff's pre-disposition. The matter of the standard of care required to discharge the duty and the further matters of causation and the assessment of damages may be affected by the pre-disposition. However, I do not think that there is material prejudicial to the defendant on those issues which is attributable by delay on the part of the plaintiff.

22. The defendant will still no doubt wish to investigate several matters which go back in time, for instance the extent to which employers like ACTION in 1986 to 1988 provided counselling and treatment to employees suffering psychological injury in the course of their employment, and, as a separate issue, the extent to which such counselling and treatment, as it was available at that time, was likely to avoid the damage of which the plaintiff complains but again I do not see any material prejudicial to the defendant occasioned by the delay.

23. Thus the question of prejudice occasioned by delay does not of itself require a refusal of the application. Otherwise I adhere to what I said in dismissing the previous application. Having regard to the various criteria set out in s 36 of the Limitation Act and the residual discretion to grant or refuse the application, I am now of the view that it is just and reasonable to extend the period in which the plaintiff may sue. I so order.

24. The order of the Court is as follows. On the undertaking of the plaintiff to file a fresh notice of motion within seven days seeking an extension of time in which to sue the defendant on the amended statement of claim, I extend the time in which the plaintiff may so sue until 28 days from today.

25. I will hear the parties on costs and give directions as to the further progress of the proceedings.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour the Chief Justice.

Associate:

Date: 30 July 1999

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

Solicitor for the plaintiff: Gary Robb & Associates

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

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 16 July 1999

Date of judgment: 30 July 1999