Reeman v State of Queensland[2004] QCA 484

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA:  On 9 September 2004 the learned primary judge dismissed an application by the appellant, made pursuant to s 31 of the Limitation of Actions Act 1974 ("the Act"), that the time for commencing proceedings against the respondent be extended to 22 July 2002, the date on which an action was in fact commenced.  In consequence, her Honour gave judgment for the respondent against the appellant in that action with costs.  It is common ground that if her Honour was correct in dismissing the appellant's application, the other orders were correctly made.

[2] In order to succeed in his application the appellant had to prove:

1. that a material fact of a decisive character relating to his right of action against the respondent was not within his means of knowledge until after 22 July 2001 which date may be conveniently referred to hereafter as "the critical date";  and

2. that there was evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.

It was common ground that the second of those requirements had been established.  It was also common ground that there were no discretionary factors which might cause a court to refuse to make the order which the appellant sought.

[3] Two questions arise in this appeal.  The first is primarily one of construction of two relevant sections of the Act, s 31(2)(a) and s 30(1)(b)(ii) which the learned trial judge resolved against the appellant.  The second is whether the termination of the appellant's employment with the respondent in August 2001 or an improvement in his health in February 2002 was a material fact of a decisive character relating to his right of action.  The learned primary judge held that neither of these facts was a material fact relating to the appellant's right of action.  As will appear from what I say hereunder, if the first of these questions is resolved in the appellant's favour, it will not be necessary to answer the second. 

[4] Before discussing the first question, however, it is necessary to say that this appeal was heard by the Court at the same time as Stephenson v State of Queensland[1] and judgment is being given in this appeal immediately following the judgment in that appeal.  The question of construction to which I have referred is the same as that involved in Stephenson.  For the reasons which I have given in that appeal I would decide that question in the same way here.  Moreover the facts in this case are materially similar to those in Stephenson and it follows that I would allow this appeal for the same reasons as those given in Stephenson.  For those reasons I do not propose to discuss in detail the reasons for my decision in this appeal.  It will be necessary, however, to say a little more about the facts in this appeal and the way in which the construction of s 31(2)(a) and s 30(1)(b)(ii) which I prefer applies to those facts.

[5] The relevant facts are not in dispute.  They are set out fully and accurately in the reasons of the learned trial judge and it is unnecessary for me to set them out fully here.  The following is a summary taken from the reasons of the learned primary judge.

[6] The appellant is a former police officer who was employed by the respondent.  He is 33 years of age.  He joined the Queensland Police Service in July 1989 when he was 18 years of age.  In the following year, aged 19, he was put on undercover duties for which he was not trained, during which his welfare was not properly monitored and in respect of which he was given no counselling or debriefing.  It was necessary for him to associate with, and on occasions live with, drug users.  He used cannabis, and on one operation snorted and injected amphetamines, in order to maintain his cover.  His work was stressful;  he feared discovery and physical harm;  and he began regular and heavy use of cannabis and alcohol.  In September 1991 he admitted to a senior officer that he had used amphetamines in the course of his work.  Disciplinary proceedings ensued and he was not assigned again to undercover work.  Nevertheless he continued to suffer from depression manifested by symptoms which included sleeplessness, shaking, crying, nail biting and trichotillomania and his dependence on cannabis continued.

[7] He commenced consulting a psychiatrist in July 2000 and went on sick leave in that year.  As it happened he did not return to work although for the balance of that year he and his psychiatrist, and representatives of the Queensland Police Service, shared the view that he would be able to do so at some future point.  In November 2000 he made a WorkCover claim and was interviewed by a WorkCover psychologist to whom he admitted his continued drug use.  He underwent a detoxification course as an in-patient in January 2001 in consequence of which he managed to refrain from cannabis use until mid April 2001.

[8] By early 2001 the prospect of his retiring from the police force became increasingly real.  In March 2001 he told a representative of the Queensland Police Service that while he was not himself prepared to seek medical retirement he would not oppose it.  By 5 April he knew that he could not go back to work and by 19 April had started to tell people that he would not be returning to the Police Force.

[9] On 4 April 2001 he consulted a solicitor to ascertain his prospects of a cause of action against the Queensland Police Service.  However he relapsed into depression and found himself unable to marshal material or to address the matter generally.  He did not return phone calls and his symptoms worsened considerably.  By 19 April he was using cannabis again.

[10]  By 24 May he had made inquiries about courses which he could do to equip himself for other work and he had passed a test for his learner's permit as a truck driver.  He was also about to undertake an information technology course.

[11]  On 22 June 2001 a doctor engaged by the Queensland Police Service performed a psychiatric assessment of the appellant in the course of which the appellant disclosed his continued use of cannabis.  The doctor described the appellant's condition as a post-traumatic stress disorder with severe ongoing problems.  He expressed the opinion that the appellant was permanently unfit and incapable of efficiently discharging his duties as a police officer.  On 25 July 2001 the appellant was advised that as of 10 August 2001 he would be discharged as medically unfit.

[12]  It was accepted by the appellant in his application that the fact that he was unlikely to return to work as a police officer was material and was known to him in the first half of 2001.  However it was submitted, for a number of reasons, that that fact did not become of a decisive character until after the critical date.  That submission was accepted, for one of those reasons, by the learned primary judge;  that a reasonable person would not have concluded that the applicant ought, in his own interests, to commence an action before the critical date because that would have been harmful to his prospect of recovery from his psychiatric illness.

[13]  In accepting that submission her Honour relied on the evidence of Dr Prior and Dr Harding to that effect.  She thought it reasonable to suppose that there was a relationship between his attendance on the solicitors to provide information and his slide, within a couple of weeks, back into cannabis use.  Her Honour accepted that he could not at that time bring himself to address the prospect of litigation or to assemble what was needed for it.  It was not, she said, something he could cope with and it was likely to be positively damaging to his health.  These findings were not contested in this Court by the respondent.

[14]  It follows that this appeal raises the same question as that which arose in Stephenson.  Her Honour put the question as "whether, that fact having assumed a decisive quality only after the critical date, Mr Reeman's circumstances fall within s 31(2)(a)".  As indicated in my reasons in Stephenson, her Honour held it sufficient for a material fact of a decisive character relating to the right of action to be within the means of knowledge of an applicant prior to the critical date, that the applicant, prior to that date, had the means of knowledge of that material fact notwithstanding that it did not acquire a decisive character until after that date.  For reasons which I have given in Stephenson I disagree, with great respect, with her Honour's construction of the two relevant sections of the Act, s 31(1)(b) and s 31(2)(a).

[15]  It follows from the construction of the Act which I reached in Stephenson that, on the facts found by the learned primary judge in this case, none of which were disputed in this Court, all material facts of a decisive character were not within the means of knowledge of the appellant until after the critical date.  It follows from this that the appeal must be allowed and that the appellant should have the order which he sought.  In the light of that conclusion it is unnecessary to consider the appellant's contentions that the termination of his employment or his partial recovery from his psychiatric illness was a material fact of a decisive character.

Orders

1. Allow the appeal.

2. Set aside the orders made by the learned primary judge.

3. In lieu, order that the period of limitation for the action commenced by the applicant on 22 July 2002 be extended so that it expires on 22 July 2002.

4. That the respondent pay the appellant's costs of the application before the learned primary judge and of this appeal to be assessed.

[16]  WILLIAMS JA:  The facts essential to the determination of this appeal and the issues raised thereby are identified in the reasons for judgment of both Davies JA and Chesterman J and I will not unnecessarily repeat those matters.  The critical question is whether or not the appellant established that a material fact of a decisive character relating to his right of action against the respondent was not within his means of knowledge until after 22 July 2001.

[17]  The appeal raises for consideration the proper construction and application of s 30 and s 31 of the Limitation of Actions Act 1974.  My opinion with respect to those matters has been fully articulated in my reasons for judgment in Stephenson v State of Queensland [2004] QCA 483 which was heard contemporaneously with the appeal in this matter.  In the circumstances I will not repeat in these reasons what I said in Stephenson, but I approach the resolution of the issues raised by this appeal in the light of the opinion I expressed therein.

[18]  I agree with the learned judge at first instance, and with Chesterman J herein, that the appellant cannot rely on the proposition that a fact known to him prior to that date became of a decisive character after that date; the reasons for so concluding are more fully set out in my reasons and those of Chesterman J in Stephenson.

[19]  If the appellant is to succeed he must point to some fact of which he only became aware after the critical date and which he can demonstrate was of a decisive character as defined in s 30.  At first instance he sought to satisfy those requirements by relying on his termination of employment with the Queensland Police Service on 10 August 2001 or the improvement in his health in February 2002.  It is necessary then to refer to the findings of fact made by the learned judge at first instance with respect to those matters; relevantly she found:

“In early 2001, the prospect of Mr Reeman’s retiring from the police force became increasingly real.  In March 2001, he told a representative of the Queensland Police Service that while he was not himself prepared to seek medical retirement, he would not oppose it. …  On 12 April Dr Harding wrote a report to WorkCover in which she expressed her concurrence with medical retirement for Mr Reeman, whom she regarded as ‘unlikely to be able to return to work as a Police Officer’. … 

On 4 April 2001, Mr Reeman spent three hours with a solicitor … which, as he knew, had commenced proceedings for other former undercover officers claiming work-induced injuries similar to his. …  Mr Reeman did not give instructions on that occasion to commence an action; the purpose of his attendance was rather to give information from which it could be determined whether he had a cause of action. … 

On 10 May 2001, the Queensland Police Service advised Mr Reeman in writing that his fitness to discharge his duties as a police officer was in doubt and that he was required to undergo assessment by a psychiatrist. … 

On 22 June 2001, Dr Cantor performed the psychiatric assessment of Mr Reeman required by the Queensland Police Service, in the course of which Mr Reeman again detailed his various difficulties, including his use of cannabis.  Dr Cantor described Mr Reeman’s post-traumatic stress disorder as a severe ongoing problem and his cannabis dependence as a moderate ongoing problem.  On 11 July, he gave his opinion that Mr Reeman was permanently unfit and incapable of efficiently discharging his duties as a police officer.  On 25 July 2001, Mr Reeman was advised that as of 10 August 2001 he would be discharged as medically unfit.”

[20]  The latter findings by the learned judge at first instance were based on the letter of 25 July 2001 from the Queensland Police Service to the appellant in which it was said:  “I hereby call upon you to retire from the Service with effect from midnight on 10 August 2001.  Please complete and return the attached form indicating your acceptance or otherwise of this direction … .”  The appellant signed the attached form on 27 July 2001 beneath the statement:  “I accept your direction and agree to retire from the Queensland Police Service effective from midnight on 10 August 2001”.

[21]  In oral evidence the appellant admitted that the steps leading to his retirement were taken pursuant to the initiative of the police service; he made no application for retirement on medical grounds.

[22]  The learned judge at first instance specifically dealt with the two facts put forward as “new material facts” as follows:

“The fact of the plaintiff’s retirement on medical grounds in August 2001 seems to me neither a new material fact nor a decisive one.  What was material was the economic consequence of the injury, in the loss of future income from employment as a police officer.  Mr Reeman had known for some months that his career with the police force was at an end; the retirement merely formalised that state of affairs.  At the point at which he realised it was the obvious outcome, a reasonable person would have considered his action to have a reasonable prospect of resulting in an award of damages sufficient to justify its bringing; or to put it another way, that his cause of action had then become worthwhile.

…

Mr Reeman also sought to rely on a supposed improvement in his health in February 2002 as a material fact, pointing to these entries in Dr Harding’s notes … .  …  They do not, in short, appear to indicate any significant recovery.”

[23]  Those findings by the learned judge at first instance were clearly open on the evidence and no basis has been established by argument on the hearing of the appeal for setting them aside. 

[24]  Here the appellant knew from at least May 2001 that retirement from the police force was inevitable and, as he indicated in March of that year, he would not oppose the police service taking that step.  It is clear that the police service was aware at the time it initiated steps for retirement that the appellant had a drug problem, and it must have been obvious to the appellant that the police service was not going to rely on that either to dismiss him (rather than retire him), or to put in jeopardy his superannuation entitlement.  The evidence in this case in that respect can clearly be contrasted with that before the court in the matter of Stephenson, and that explains why a different conclusion must be reached.

[25]  At the end of the day the evidence, particularly in the light of the findings by the learned judge at the first instance, does not establish that a material fact of a decisive character became known to the appellant only after 22 July 2001.  It follows that on the evidence the appellant has not established an entitlement to an extension of the limitation period.

[26]  The appeal should be dismissed with costs.

[27]  CHESTERMAN J:  The appellant unsuccessfully sought an order pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) that the time for commencing an action for damages for personal injury against the respondent be extended until 22 July 2002.  He commenced proceedings on that date.  The psychiatric injury from which he claims to suffer had its onset in about the year 1991 and was diagnosed in 2000. 

[28]  The relevant facts can be briefly stated.  The appellant was a police officer between 1989, when he joined the Queensland Police Service at the age of 18, and 10 August 2001 when he was discharged as medically unfit.  In 1990 and 1991, when he was a very young and inexperienced police constable, he was assigned to duty as a covert operative.  He was obliged to mix in the company of criminals and drug addicts.  The work was stressful and dangerous.  The applicant became a regular consumer of large amounts of cannabis and alcohol.  In September 1991 he admitted to a superior that he had consumed amphetamines in the course of his covert activities.  He was soon transferred to uniform duties but was not, he alleges, given counselling or psychological support to make the adjustment from the supposed life of a criminal to that of an officer sworn to enforce the law.

[29]  In about July 2000 the applicant consulted a psychiatrist who diagnosed him as suffering a post-traumatic stress disorder and major depression.  The symptoms had been present in varying degrees of severity from 1991.  The applicant commenced sick leave on the psychiatrist’s recommendation.  He did not return to work.  On 10 May 2001 the Queensland Police Service advised the applicant that it doubted whether he was fit to discharge his duties as a police officer.  On 22 June 2001 he was psychiatrically assessed by a doctor appointed by his employer who, on 11 July, advised that the applicant was permanently unfit and incapable of efficient performance of police duties.  He was, as I have said, discharged as medically unfit on 10 August 2001.

[30]  To obtain the benefit of an order made pursuant to s 31 of the Act the applicant had to show that a material fact of a decisive character relating to his right of action was not known to him until a date after 22 July 2001.  The material fact relied upon was his discovery, in mid August 2001, that his prospects of continuing as a police officer were poor.  The applicant’s problem is that this fact was known to him at least from 10 May 2001 when his employer advised him of its doubt that he was fit to continue police duties.  By that time he had been off work on sick leave for about 10 months.

[31]  To overcome this problem the applicant argued that the fact that he was unlikely to remain a police officer did not acquire a decisive character until after 22 July 2001 ‘because a reasonable man knowing the material facts and taken appropriate advice on them, would not have regarded them as showing that he ought bring an action “in his own interests and taking his circumstances into account”.’  It was said not to be in his interests to pursue an action until after his discharge from the Police Service in August 2001 because of:

• The effect that pursuing his claim would have on his prospects of being able to continue in the Police Service.
• The risk of prosecution and disciplinary proceedings for his illicit drug use.
• The effect that such prosecution or disciplinary action might have on his discharge on medical grounds which in turn would affect his superannuation entitlements.
• The impact on his mental health that the pursuit of legal proceedings would have.

[32]  The trial judge rejected all but the last of these factors as showing that, in his own interests in taking the circumstances into account, it was reasonable for him not to commence proceedings earlier.  Her Honour thought, however, that commencing proceedings would have been harmful to the applicant’s recovery from his stress disorder and depression.  Following a careful review of the authorities and the legislation her Honour concluded that all the material facts relating to the appellant’s right of action were within his means of knowledge prior to 22 July 2001.  However, her Honour concluded that the material facts did not take on a decisive character until after the critical date.  This was for the reason that had the applicant had ‘to address the prospects of litigation or to assemble what was needed for it’ there would have been significant damage to his mental health.  Her Honour found that this conclusion did not assist the appellant.  Her Honour said:

‘[32]… To succeed, [the appellant] must be able to point to a material fact which was not within his means of knowledge at the critical date;  that is to say, a material fact which came within his means of knowledge after that date;  and he must be able to demonstrate its decisive character. … 

[33]Quite apart from questions of grammar, there is a well-established line of authority in this state in which extension has been considered on the premise that one starts by identifying a newly discovered fact, and then proceeds to determine whether it is material and decisive …. …

[34]Section 31(2) enables a plaintiff to obtain an extension of the limitation period by showing two things:  firstly, that a material fact came within his means of knowledge after the critical date;  and secondly, that it was of a decisive character.  Here it would be an absurdity to say that the material fact … was not known … before the critical date;  …  so the first premise … has not been established.’

[33]  For the reasons I endeavoured to express in Stephenson v State of Queensland [2004] QCA 483 I agree with the conclusions of the trial judge.  I would disagree, for the reasons given in Stephenson, that whether a material fact is of decisive character is to be determined by an applicant’s personal circumstances divorced from the facts relating to the cause of action.  That reservation has no bearing on the outcome of the appeal which, in my opinion, should be dismissed with costs.