Pickering v State of Queensland
[1998] QDC 354
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- Pickering v State of Queensland[1998] QDC 354
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Pickering v State of Queensland[1998] QDC 354
Pickering v State of Queensland[1998] QDC 354
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No No. 62 of 1998 |
BETWEEN:
BEVERLEY ALICE PICKERING | Plaintiff |
AND:
STATE OF QUEENSLAND | First Defendant |
AND:
MARK MILLARD | Second Defendant |
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 22nd day of December, 1998
This is an application for an extension of time pursuant to s.31 of the Limitation of Actions Act (Q) 1974. The plaint was filed on 9th January 1998 and claims “damages, including aggravated damages, for personal injuries, loss and damage suffered by the plaintiff as a result of the negligence and/or breach of duty and/or breach of statutory duty of the first defendant and as a result of the second defendant's trespass against the person of the plaintiff...”.
The action against the second defendant is characterized as an action in trespass against the person. However, paragraph seven of the plaint alleges numerous and varied instances of offensive behaviour. Some might be considered actionable as amounting to trespass to the person or as constituting defamation. It would be fair to say, however, that in the present case their offensive character derives principally from the fact they were said to have occurred in the workplace.
The Plaintiff had been employed over a period of many years as a teacher's aide at the Gayndah Pre-school. In 1990 the Second Defendant commenced there as a teacher. The events complained of are said to have occurred over a five year period until the Second Defendant was transferred to Maryborough at the end of 1994.
The relevant section of the Limitation of Actions Act 1974 is as follows:
“31.(1)...
- (2)Where on application to a court by a person claiming to have a right of action to which this action applies, it appears to the court -
- (a)That a material fact of the decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
- (b)...
The court may order that the period of limitation for the action extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”
I have not set out the terms of s.31(2)(b) because Mr Morton for the First Defendant concedes that that section is satisfied in the present case. I should mention in passing that the Second Defendant did not seek to be heard on this application. I was informed that he would abide the order of the court.
In the event that the Second Defendant's actions and the First Defendant's liability arose in the period 1990-1994 then the limitation period would have been expected to expire in the period 1993 to 1997. One year prior to that expiration period takes us to the period 1992 - 1996. The event relied upon by the Plaintiff as not within her means of knowledge until on or about the 2nd of April 1997 is the fact that she suffered from a permanent psychiatric illness.
Such knowledge comes within the definition of material facts contained in s.30(a)(iv) of the Act. It is really not in dispute that such knowledge would also satisfy the definition of “material facts of decisive character” contained in s.30(b). The central issue of this application has been whether the Plaintiff can establish that despite her longstanding problems with stress and anxiety at work the abovementioned fact was not within her means of knowledge until on or about the date mentioned.
Subsection 30(d) of the Act provides:
- “(d)A fact is not within the means of knowledge of the person at a particular time if but only if-
- (i)The person does not at that time know the fact and;
- (ii)So far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the facts.”
It is not necessary for me to canvass in detail the extensive affidavit material and the cross-examination of the Plaintiff. Suffice to say that she had some 13 weeks off work in 1990 and 14 weeks in 1991 although none of these were on workers' compensation. She took 11 weeks of long service leave in 1994 and agreed under cross-examination that she took these because of the anxiety that she was suffering. Later again she took eight weeks off work from the 7th February 1997 to the 2nd April 1997.
She suffered from a number of conditions of a general kind but even in some of these a connection was raised with her stressful work situation. In 1990 she attended a cardiologist a doctor Dr Hossack concerning chest pains. He advised her to get away from the Second Defendant.
In March 1991 she suffered psoriasis to the hands and scalp. She did not associate this, however, with stress. She agreed nonetheless that if asked she would have described her condition during 1992 and 1993 as “worried” and “anxious”. She would not have used the word “depressed” which later appeared in her affidavit.
In many consultations with doctors she was told during these years that her headaches were stress related.
Mr Morton put to the Plaintiff in cross-examination:
“...It must have become apparent to you at some time in 1995 - in the year after Millard was transferred, it must have become apparent to you that your condition was not improving?-- Yes, it did - became very apparent.
And that's - as we said before, the same can be said of 1996, can't it?-- Yes, that's true.
So, it must have become apparent to you that your condition was continuing despite the fact that Millard had been transferred?-- Yet, that's correct.
All right?-- I didn't know that was a psychiatric illness. I didn't consider stress a psychiatric illness.”
She agreed that she was forced to stop driving her school bus because of defamatory things that the Second Defendant was saying behind her back. She gave up teaching Sunday School, something that she had done over many years. On 10th July 1996 she wrote to the Education Department saying:
“Mr Millard's constant harassment caused me extreme emotional and physical distress.”
She first consulted solicitors on 20th December 1996. She wasn't aware at that stage that she could be compensated. She thought that something had to be done to stop the Second Defendant treating human beings in the way he did. She had received reports from Maryborough that his conduct was continuing unabated.
Mr Allingham, her solicitor, has filed an affidavit setting out the steps he took. They led to Dr Mulholland seeing her in April 1997. She was told then that she had an anxiety depressive disorder.
Despite having seen many doctors over a period of years none had suggested to this point of time that she see a psychiatrist.
There is a very unusual aspect of her situation during these years that merits attention. Much of her distress was caused by the defamatory allegations, which were allegedly spread by the second defendant, that she was suffering from mental illness. In her statement says as follows:
- “20.In September 1991 Mr Millard told a parent committee meeting that I was suffering from a serious mental illness and must be kept away from children. In October 1991 while I was away from Gayndah on leave, Mr Millard told parents of students at the Pre-School that I was away receiving treatment for my mental illness. When I returned from leave Mr Avery refused to give me my job because Mr Millard didn't want me. With references from people in the town and a letter from Dr Ung I was allowed to return to the Pre-School.
- 21.As a result of Mr Millard's lies about my suffering a mental illness, I became an outcast in the small town at Gayndah. Friends avoided me or offered to help with my illness. I was not permitted to continue my work as an honorary ambulance officer.
- 22.After a senior officer in the Department of Education, Betty Murray, visited the Pre-School in November 1991, Mr Millard's sexual talk diminished a little, but he then began to subject me to long silences, ignoring me, putting me down, discrediting me with the parent community and putting me in my place at every opportunity.”
The Plaintiff was thereby put in the position of having to assert her mental health. She was living in a small country town. Her work concerned young children whose parents were understandably sensitive to malicious gossip concerning a person who had the charge of their children. She was not being taken seriously by the principal of the school or by some representatives of the Education Department to whom she made complaint.
This is a matter of considerable significance in the present case. I have already pointed out that none of the doctors that she consulted during these years had recommended that she be psychiatrically examined. It would have been extraordinary, in my view, if a reasonable person in the position of the plaintiff had been able to bring to bear the level of insight and detachment that would have been required to take the initiative in seeking psychiatric help.
She expected that her problems would disappear when the Second Defendant departed from the Pre-School. Of course that didn't occur. Dr Mulholland in his report dated 17th August 1998 observed:
“Mrs Pickering always thought that she had “stress” due to her dealings with a work colleague. However, her expectation was that if that unpleasant behaviour by that work colleague ceased, or if he moved, then she would be well, i.e. she would be free of “stress”.
I do not think she realised that she had a psychiatric condition as such until after the consultations with myself and Dr Del Sherlock which occurred in April and May 1997.”
Dr Sherlock, the psychologist, prevailed upon the Plaintiff to leave her employment at the Pre-School in late 1997.
The situation of a prospective plaintiff in such circumstances is described by Thomas JA in Pizer v Ansett Australia Limited C.A. App No.6807 of 1998, unrep:
“The question whether such a person has taken all reasonable steps to ascertain the nature and the extent of the injury “...depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the rest merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity.”
There is no requirement, actual or notional, to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so.”
I have adverted to the fact that the Plaintiff had diminished insight into her own condition. This is a theme which was taken up by Williams J in Young v The Commission of Fire Service No.2005 of 1991 dated 24th March 1997. His Honour commented in respect of a fire officer who had suffered psychiatric illness following attendance at a horrific accident:
“To my mind it is of critical importance here that the applicant's psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences. The very psychiatric condition in question militated against the applicant knowing its seriousness and probable consequence. In all of the circumstances of this case the newly discovered fact did not merely go to the enlargement of the applicant's prospective damages; it went to the very existence of the injury and the causes thereof”
Ms Spender who appears for the Plaintiff referred to several decided cases where superior courts have considered this difficulty. In Stubbings v Webb & Ors (1991) 3 ALL ENG Rep 949 the Court of Appeal in its civil division considered the situation of a young female plaintiff who had been sexually abused during her minority. Bingham LJ acknowledged the force in the submission that the Plaintiff had the knowledge necessary to sue on reaching her majority and should have either sued then or not at all. However he went on to observe at p956:
“Recognition that these acts had caused her serious long term mental impairment could reasonably been seen by the Plaintiff as importing a new order of gravity. To distinguish between the immediate impairment of the Plaintiff's mental condition caused by these acts, apparently minor and transient, and to the much more serious long term impairment of the Plaintiff's mental condition, the attributability of which to the Webbs' conduct was only appreciated later, is not in my judgment to defeat the intention of the legislature but to promote it.”
In the present case I find that the fact that the plaintiff was suffering from a permanent psychiatric illness was not within her means of knowledge until in or about April 1997.
I note that there is no suggestion of prejudice suffered by the Defendants resulting from an extension of time under the Limitation Act in the present case. I therefore order that time be extended for the bringing of the present action until the 2nd of April 1998.
The Plaintiff seeks an indulgence in the bringing of this application and should bear the costs of and incidental to the application to be taxed.