Finn v Queensland Ambulance Service [2000] QSC 472

SUPREME COURT OF QUEENSLAND CITATION: Finn v Queensland Ambulance Service [2000] QSC 472 PARTIES: ALLAN FRANCIS FINN (Applicant) v QUEENSLAND AMBULANCE SERVICE (Respondent) FILE NO: S378 of 2000 DIVISION: Trial Division DELIVERED ON: 15 December 2000 DELIVERED AT: Rockhampton HEARING DATES: 17 November 2000 JUDGE: Dutney J ORDER: The period of limitation within which the plaintiff is to commence an action for damages for negligence, breach of contract and breach of statutory duty with respect to the injury described as major depression and atypical post traumatic stress disorder arising out of his employment by the defendant be extended to 21 August 2000. CATCHWORDS: LIMITATION OF ACTIONS-PERSONAL INJURIES- EXTENSION OF TIME – PSYCHIATRIC INJURY - Application for extension of time to bring action – whether contents of a report regarding the applicant’s condition were within his means of knowledge before 21 August 2000 – availability of evidence to prove causative link between the management practices of the respondent and the injury suffered by applicant – whether these facts constitute material facts of a decisive character Limitation of Actions Act 1974 s30, s31 Morgan v Tame [2000] NSWCA 121, referred to -- 1 of 10 -- 2 Midwest Radio Ltd v Arnold (QCA, App 4010 of 1998 – 12 February 1999), discussed Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, referred to Woodrow v Commonwealth of Australia (1993) 54 FCR 52, referred to Wood v Glaxco Australia Pty Ltd [1994] 2 Qd R 431, followed Moriaty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, followed Berg v Kruger Enterprises [1990] 2 Qd R 301, followed Queensland Corrective Services Commission v Gallagher [1998] QCA 426, referred to Dick v University of Queensland [1999] QCA 474, applied COUNSEL: Mr McMeekin SC for the applicant Mr Hoare for the respondent SOLICITORS: John Murphy & Co. for the applicant Crown Solicitor for the respondent [1] DUTNEY, J: Mr Finn, the applicant, was appointed the officer-in-charge of the Queensland Ambulance at Duaringa on 16 December 1990. He had been an officer with Queensland Ambulance since August 1980. In the intervening 10 years Mr Finn worked at Gatton (a five man station) for 7 years and at Home Hill (a four man station) for 3 years. At Home Hill Mr Finn was promoted to a senior ambulance officer. He received a number of continuous and meritorious service awards and a number of written commendations from the Queensland Ambulance Service (QAS). [2] By 1990 Mr Finn had acquired considerable experience and had had no adverse reports. [3] Duaringa was a one man ambulance station. Mr Finn says that he was aware that the previous officer had resigned in circumstances where some of the Duaringa community had made complaints against him to the effect that he was not a competent officer and was not providing a proper service. Mr Finn does not disclose the origin of his “awareness”. Mr Walz, the regional director based in Rockhampton has no knowledge of any such complaints against Mr Finn’s predecessor in Rockhampton. [4] Mr Finn commenced in Duaringa with a plan to provide an extremely good ambulance service and become heavily involved in community activities. Apart from providing what he thought was the best possible ambulance service Mr Finn -- 2 of 10 -- 3 was involved in Bingo, the P & C, organising junior cricket and organising a health fair in conjunction with Queensland Health. [5] On 25 March 1991 Mr Finn received a letter of commendation from the superintendent/secretary at the Rockhampton Centre, Mr Mackay. Mr Finn had apparently reported on the apparent improvement in the public’s perception of the Duaringa Ambulance Service and the increased usage of the service. In the letter Mr Mackay wrote: “Your approach to the position of O.I.C. is reflected in your report and it is obvious you are working hard to overcome your predecessor’s image of arrogance towards the Duaringa community”. [6] As early as March 1992 Mr Finn began requesting additional assistance and training. One problem with isolation was that Mr Finn had little opportunity to upgrade his skills. [7] In late 1992 new procedures were introduced concerning coronary care. Mr Finn received some training concerning coronary care when he received some new forms in October 1992. [8] On 13 October 1992 Mr Finn says he was summonsed to Rockhampton (a round trip of 250km) to be interviewed by Mr Hampson, the Communications Centre Supervisor, in relation to incorrect filling out of a form. Mr Hampson in his affidavit denies the purpose of the interview. Mr Hampson says Mr Finn was interviewed by him because a petition signed by 35 residents complaining about Mr Finn’s performance as an ambulance officer had been received. Mr Hampson says that in the nine years he had been a superintendent before this he had never seen so many complaints by so many people against an ambulance officer. All he had experienced previously were occasional letters of complaint concerning a single specific incident. Mr Hampson seems to be wrong in dating the petition in October 1992. The chronology in his subsequent report dates the petition as 8 December 1992 and the interview concerning it as 14 December 1992. [9] Mr Finn says he found Mr Hampson’s demeanor towards him in October 1992 to be aggressive and unsympathetic to his problems as an isolated ambulance officer. He thought Mr Hampson didn’t like him. [10] Mr Finn says he heard rumours of a petition against him in early December 1992. On 14 December 1992 he met Mr Hampson and a union representative in Rockhampton. This was in consequence of what Mr Finn described as an extremely abrupt phone call from Mr Hampson at 9:30 that morning. He was not told the purpose of the meeting and was consequently extremely worried. [11] At the interview there was no exchange of pleasantries. Mr Hampson then told Mr Finn he was not suited to being an officer-in-charge and that he should apply -- 3 of 10 -- 4 for a transfer from Duaringa to somewhere else in the Central Queensland region. Mr Hampson then read out the petition and said “You are hereby charged with misconduct”. The notice of charge was then thrown down on the table in front of Mr Finn. Mr Hampson said “You should take two weeks off starting today. You had better discuss this with Dave (the union representative present), I’m leaving the room”. [12] Not surprisingly, if his version is ultimately accepted, Mr Finn was extremely distressed by this confrontation. He spoke briefly to the union representative and then Mr Hampson returned. Mr Hampson demanded a report from Mr Finn within 14 days. [13] The charge was withdrawn a few days later. The union representative apparently persuaded Mr Hampson of the inappropriateness of charging Mr Finn before the matter had been investigated. Mr Hampson then undertook an investigation and delivered a report dated 10 February 1993. [14] Mr Hampson’s report recommended that Mr Finn be given training in all areas of patient care, examination, treatment and decision making and be precluded from working in an unsupervised capacity in the future. [15] After being charged on 14 December 1992 Mr Finn says his life has not been the same. Between December 1992 and May 1993 (when he was transferred to Rockhampton) Mr Finn says he was miserable. He says he was determined to stay in Duaringa and face the unfair charges and complaints and win. He did not want to be run out of town by what he thought was malicious gossip and unfair and untrue complaints. He believed his predecessor and a number of public servants had previously been forced out of Duaringa in similar circumstances. He felt he was receiving little support from his employer and Mr Hampson was, he thought, determined to ruin his career. [16] From December 1992 Mr Finn says he was very stressed and by the time of his transfer to Rockhampton he was very depressed. He was experiencing marriage difficulties with his wife, a drop of libido and insomnia. Mr Finn says he was no longer a happy person and was unsure of himself and lacking in confidence. When working in Rockhampton Mr Finn felt that his fellow officers were out to get him. Mr Finn says that from May 1993 things got worse. [17] Mr Finn became increasingly distressed over the failure of the QAS to further investigate the complaints. He appears to have agitated long and hard to have the matter resolved because he believed the complaints were a set up to destroy his credibility within the community and the QAS. Eventually, in October 1994, Mr Finn received a letter from the Relieving Assistant Commissioner for Rockhampton informing him that there was insufficient evidence to take disciplinary action against him over the complaints. -- 4 of 10 -- 5 [18] Some other incidents also added to Mr Finn’s distress and reinforced his belief that there was a conspiracy to harm him. The first involved an account for $225. Mr Finn was a passenger in an ambulance vehicle attending the scene of a traffic accident. Another vehicle collided with the passenger side of the ambulance injuring Mr Finn’s shoulder. Mr Finn was taken to hospital in a second ambulance. About two weeks later he received the transport account. [19] Mr Finn left the account with his supervisor on the basis that it was a work related accident and should be met by WorkCover. Mr Finn received a couple of reminders including one from a collection agency to which he supplied details. Mr Finn then says he received a phone call from the Transport branch of the QAS complaining that he had cost them $100 in collection fees. Mr Finn regarded this as harassment. [20] On 12 November 1995 an ambulance in which Mr Finn was a passenger disobeyed a red light. On 10 January 1996 the acting officer-in-charge at Rockhampton made a statutory declaration to the effect that Mr Finn was the driver. Mr Finn received a ticket from Queensland Transport fining him $130 and 3 demerit points. Mr Finn believes this was done deliberately to harass him. Mr Finn held a meeting at which the actual driver admitted his liability and Mr Finn was exonerated. [21] The version of events given by the acting officer-in-charge is less sinister. Mr Black says that he received notice of the infringement. He requested staff to locate the ambulance report form that matched the date and time of the incident which is normal procedure. The records produced identified Messrs. Finn and Benjamin as the occupants of the vehicle. Mr Finn was on holidays and accordingly Mr Black asked Mr Benjamin who was driving. Mr Benjamin said Mr Finn was. Mr Black had no reason to doubt Mr Benjamin and notified his superior. When Mr Benjamin later admitted to lying he was reprimanded by Mr Black and another senior officer and Mr Black verbally apologised to Mr Finn. [22] The third incident concerned a complaint over the transport of a baby to the Rockhampton hospital. On 31 January 1997 Mr Finn was informally interviewed over the complaint. The complaint was in two paragraphs of a letter. Mr Finn was not shown the full letter but was asked to comment. Mr Finn expressed concerns on the basis of past complaints and was informed that the complaint was genuine but to retain confidentiality Mr Finn would not be shown the beginning or end of the letter. Mr Finn agreed to provide a report which he did on 31 January 1997. He heard nothing further. On 14 October 1997 he wrote seeking a full copy of the complaint received and any reports relating to it. This request was refused. [23] Mr Finn made his own enquiries at the hospital. He says he was told anonymously that an ambulance officer had been asking questions about the transport of the patient. Mr Finn concluded from this and the content of the -- 5 of 10 -- 6 complaint that another ambulance officer was the complainant. He saw this as another attempt to harass him and make him resign. [24] After this last incident Mr Finn sought Priority One counselling. Priority One counselling is confidential counselling provided by their employer to people such as ambulance officers to cope with stress or traumatic events. The counsellor told Mr Finn that the baby incident was not something to be worried about. It was over and he should get on with his life. [25] This advice made Mr Finn even more dejected. He thought he was beating his head against a brick wall and getting nowhere. [26] In September 1998 Mr Finn decided to consult his personal file which was freely available to him. On it he says he found a report from Mr Walz, the regional executive director to Mr Lawler, the Deputy Commissioner which stated he was receiving Priority One counselling. Mr Finn was incensed at the apparent lack of confidentiality and confronted the counsellor. He read the counsellor’s body language as an admission of guilt and told him he could not trust him or anyone at Priority One. [27] Mr Finn was becoming overwhelmed by suspicion and dejection. He consulted Dr Joan Chamberlain who gave him a certificate on 23 September 1998 that he was suffering from a major depressive disorder and possible post traumatic stress syndrome. [28] As a result of alarm and depression over his future in the Ambulance Service Mr Finn took five months long service leave in February 1998. He returned to work in August 1997. Mr Finn ceased active employment with the Queensland Ambulance Service on 23 September 1998. He has not been back to work since. While on long service leave in 1997, however, he reported to Dr Gunn that his symptoms improved. [29] On 21 August 2000 Mr Finn commenced the current action seeking damages for negligence, breach of contract and/or breach of statutory duty. All of the events outlined are said to have contributed to Mr Finn’s present condition which is described by Mr Acutt, a consultant psychologist as suffering from a major depressive illness and post traumatic stress disorder. Dr Alroe, a psychiatrist considers there is no prospect of Mr Finn returning to work for the QAS and little prospect of his returning to any other work other than part time. [30] There are before me two applications. The first is for a declaration that the limitation period for injuries sustained after 1 January 1996 has not yet expired. The second is for an extension of the limitation period in respect of injuries diagnosed by Mr Acutt to 21 August 2000. -- 6 of 10 -- 7 [31] In the ordinary case the time for bringing an action for any injury sustained before 21 August 1997 would have expired prior to the filing of the originating application. [32] Two things complicate the making of any declaration in relation to the first application. The first is the nature of the claim, which is for pure psychiatric injury. The second is that it relates only to injury suffered between 1 January 1996 and 20 August 1997. Two events seem pivotal to Mr Finn’s condition. The first is the petition from Duaringa and its handling by the QAS. This is outside the period for which the declaration is sought. The second is the file record of Priority One counselling. This was in September 1998, outside the declaration period. [33] The nature of the injury is significant. Where a claim is made for pure psychiatric injury foreseeability becomes critical. Unless the employer is aware of the plaintiff’s particular susceptibility to such injury it is only liable if the court finds that the factors giving rise to the injury would be likely to cause injury to a person of normal fortitude: Morgan v Tame [2000] NSWCA 121; Midwest Radio Ltd v Arnold (QCA, App 4010 of 1998 – 12 February 1999); Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Woodrow v Commonwealth of Australia (1993) 54 FCR 52. [34] The best evidence for Mr Finn comes from Dr Alroe who, in response to specific questions, said that a person of ordinary fortitude could be expected to suffer psychiatric injury from the combination of the QAS’s handling of the Duaringa complaints, the red light incident and the disclosure on the personal file. This evidence would not support a positive finding for Mr Finn without his being able to rely on the Duaringa incident: see Midwest Radio Ltd v Arnold (supra). The declaration would be insufficient therefore to support a cause of action unless the limitation period is extended pursuant to the second application. [35] In a later report dated 15 November 2000 Dr Alroe opined that the Duaringa incidents gave rise to a stress diathesis or state of vulnerability. The injury arose from the disclosure incident but would not have arisen without the vulnerability created by the Duaringa incidents. It follows that the declaration sought is of no practical utility without the extension of the limitation period particularly where the only other “trigger” to the injury which might support the claim is not within the period for which the declaration is sought. I therefore decline to make the declaration. [36] To succeed on the application to extend the limitation period the applicant must satisfy me that a material fact of a decisive nature was not within Mr Finn’s means of knowledge until after 21 August 1999 (one year prior to the filing date of the claim) and that there is evidence to establish the right of action. As to the last point I am satisfied that the applicant has identified evidence which if called at trial and not subject to the limitation problem could result in a judgment in his -- 7 of 10 -- 8 favour. In this respect I am entitled to have regard, among other things, to the decision of the Industrial Magistrate, not as evidence in its own right, but as identifying evidence which might be called to show that the Queensland Ambulance Service’s management of Mr Finn’s circumstances was below acceptable standards in ways that contributed to his condition: see Wood v Glaxco Australia Pty Ltd [1994] 2 Qd R 431. Mr Finn’s account of Mr Hampson’s dealing with him, if accepted, would demonstrate bias on Mr Hampson’s part which made him inappropriate to conduct the initial investigation. If these facts and those relating to the other events as given by Mr Finn are combined with Dr Alroe’s opinions and the evidence of Mr Kahler there is sufficient evidence pointed to to establish the right of action. [37] Three material facts are relied upon by the applicant: (a) The nature and extent of the injuries suffered in that it was not until after the relevant date that Mr Finn realised he would not be able to return the Queensland Ambulance Service; (b) The nature and extent of the injuries suffered in the sense that Mr Finn learnt that the QAS handling of the Duaringa complaints had caused him to suffer such injury that he was vulnerable to suffering further and more severe harm from more minor incidents in life; (c) The fact of the occurrence of negligence or breach of duty on which the right of action is founded. Not until after the relevant date did Mr Finn become aware of the opinions of Dr Alroe and Mr Kahler. Those opinions establish the mismanagement by the defendant was in breach of standards of reasonable care. [38] Under s 30(b) of the Limitation of Actions Act 1974 the newly learned facts must be decisive in that without the benefit of those facts the applicant would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his interests pursue it: Moriaty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333; Berg v Kruger Enterprises [1990] 2 Qd R 301 at 305. [39] Before 21 August 1999 Mr Finn had been off work for about 11 months. On 22 October 1998 Mr Finn told Mr Acutt that he did not think that he could go back to work. On 18 May 1999 Mr Finn reported to Mr Acutt that he was waiting on details of the payout he would get from the QAS if he resigned. WorkCover rejected Mr Finn’s claim in October 1998. It was not accepted until the decision of the Industrial Magistrate on 26 June 2000. From October 1998 Mr Finn received disability payments from Suncorp equivalent to 75% of his salary. [40] Before 21 August 1999, therefore Mr Finn was losing income notwithstanding a pending appeal against the rejection of his claim and suspected, even if he had no medical confirmation that he would not return to work with the QAS. He was -- 8 of 10 -- 9 conscious also of a significant psychiatric disability for which he was receiving treatment. [41] After 21 August 1999 the suspicion of an inability to return to work became a knowledge of that fact by reference to the evidence obtained for and in the hearing before the Industrial Magistrate. In particular the opinion of Mr Acutt in his report to WorkCover of 13 January 1999 was not made known to Mr Finn until May 2000 when Mr Acutt supplied his affidavit for these proceedings. The explanation for not having expressed the opinion to Mr Finn during counselling is that Mr Acutt considered that at that time it would have been detrimental to his recovery. If Mr Acutt would not inform Mr Finn of this opinion the only practicable means for ascertaining it would have been in the Industrial Magistrates Court hearing into the rejection of Mr Finn’s claim to WorkCover which commenced on 16 June 1999 and was heard in February 2000. Absent any evidence on the topic from WorkCover I am satisfied on the balance of probabilities that the report of 13 January 1999 to WorkCover did not come to the applicant’s solicitors until after 21 August 1999 and hence its contents were not within Mr Finn’s means of knowledge before that date. [42] The second and third “facts” are somewhat alike. They relate to the availability of evidence to prove the causative link between the management practices of the QAS and the injury suffered by Mr Finn. [43] Proof of liability on the part of an employer for a psychiatric injury is notoriously difficult especially where it is said to arise from multiple events over a period of time: cf Midwest Radio Ltd v Arnold (supra); Queensland Corrective Services Commission v Gallagher [1998] QCA 426. Here the matter is made more difficult because Section 34 of the WorkCover Queensland Act 1996 excludes from the definition of injury a psychiatric or psychological disorder arising out of reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment or the worker’s expectation or perception of reasonable management action being taken against the worker. Here not only was the issue one concerning management practices but in relation to action being taken against Mr Finn in consequence of the Duaringa petition. Further, both the initial claim to WorkCover and the review of that decision were rejected in reliance on these exclusions. [44] The availability of supporting evidence can be a “fact” for the purposes of s 31 of the Limitation of Actions Act 1974: see Dick v University of Queensland [1999] QCA 474 at [5], [20]. In light of the combination of facts relied on by the applicant, but particularly the fact that evidence became available to show the QAS’s management practices fell below the accepted standard I would regard it as a little foolhardy to have commenced proceedings before receipt of the opinions of Dr Alroe and Mr Kahler in the face of a WorkCover investigation which had found to the contrary. The missing evidence was supplied by Mr -- 9 of 10 -- 10 Kahler in his report of 17 February 2000 and in the report of Dr Alroe of 9 February 2000. The former, if accepted, would establish the unacceptability of the management practices in relation to Mr Finn. The latter establishes, if accepted, that despite some chronological inconsistencies the present condition is directly related to the practices complained of particularly in relation to Duaringa with which this application is critically concerned. It was submitted that these were matters for judicial finding not expert evidence. On the contrary, the opinions of Dr Alroe linking cause with effect are of a medical and not legal nature. A judge might ultimately accept or reject Dr Alroe’s opinion but the linking of a particular event, if it happened, with specific psychological sequelae seems to be a proper matter for Dr Alroe’s comment. Mr Kahler as an expert is also able to talk of accepted standards in the commercial context. A failure to meet such standards may not ultimately lead to a finding of negligence but again the preliminary matter is properly the subject of expert opinion. [45] In the result I conclude that these facts were not within the means of knowledge of the applicant before 21 August 1999 and were of a decisive nature: (a) that evidence was available to rebut the WorkCover findings that the QAS’s management practices were in breach of the required standard and the breach was directly causative of the current injury; (b) that the condition rendered the applicant permanently unfit for work with QAS. [46] In a case of physical injury I may not have found fact (b) “decisive” but rather going to quantum where there was already economic loss. In view of the difficulty with proving this type of case where the injury is purely psychiatric quantum is often decisive in that the risk of litigation is such that a claim for a modest award of damages is probably not justified but a substantial claim may be. On balance I think here (b) falls over the line on the side of “decisive”. Further if one considers the two facts together they are plainly of a decisive character. [47] I do not think I should refuse the application on discretionary grounds. The key witnesses for the respondent on the issues that have limitation problems have given affidavits which show they have a good recollection of events. A lot of the case is documented. The recollection of events has been refreshed by the hearing before the Industrial Magistrate. I do not think the respondent is prejudiced by the fact that the oldest events are now eight years old. [48] I therefore order that the period of limitation within which the plaintiff is to commence an action for damages for negligence, breach of contract and breach of statutory duty with respect to the injury described as major depression and atypical post traumatic stress disorder arising out of his employment by the defendant be extended to 21 August 2000. -- 10 of 10 --