Bayliss v Cassidy, Harper, Sturgess & State of Queensland [1997] QSC 181

IN THE SUPREME COURT OF QUEENSLAND No. 4786 of 1988 BETWEEN: PETER JOHN BAYLISS Plaintiff AND: ROBERT BERNARD CASSIDY First Defendant AND: NEVILLE JOHN HARPER Second Defendant AND: DESMOND GORDON STURGESS Third Defendant AND: STATE OF QUEENSLAND Fourth Defendant JUDGMENT - HELMAN J. Judgment delivered 10 March 1997 The plaintiff began this action on 22 December 1988 against the first defendant and, upon amendment of the writ of summons on 9 August 1989, the second, third and fourth defendants were joined. At all material times the first defendant was a police officer, the second defendant the Minister for Justice and Attorney-General, and the third defendant the Director of Prosecutions. The action arises out of the plaintiff's arrest on 20 May 1985 on a charge of conspiring unlawfully to use force to procure the miscarriage of women. The charge was dismissed on 4 July 1985 in the Holland Park Magistrates Court when the complainant offered no evidence. The plaintiff claims damages for false imprisonment, ,': malicious process, malicious prosecution, and trespass to goods. -- 1 of 8 -- 2 A statement of claim was delivered on 22 December 1988 and amended statements of claim have been delivered since. The current version of the statement of claim is a further amended statement of claim delivered on 24 September 1993, paragraph 7 of which is as follows: "7. By reason of the matters aforesaid, the plaintiff was wrongfully imprisoned and deprived of his liberty, a~d he was greatly injured in his credit, character, personal and professional reputation. Be suffered significant and considerable mental pain and anguish, as an eminent medical practitioner in the area of fertility control, and he has been put to considerable trouble, inconvenience, anxiety and expense. He has thereby suffered loss and damage ,I excluding loss of income 1 The plaintiff has suffered special damages, full particulars of which will be supplied prior to trial. " That paragraph has not been amended in any material way since the delivery of the first version of the statement of claim. The second "and" did not appear in the first version. In , the first version "has" appeared before "suffered" where it appears first, and "and" appeared after "expense" instead of the full stop and "He". The words "excluding loss of income" did not appear in the first version. A defence was delivered and was later amended but it was not pleaded that the plaintiff's action was statute-barred. The defendants now seek leave to amend the current version of the defence, a further amended defence of the first defendant and an amended defence of the remaining defendants delivered on 16 March 1995, under Order 32 Rule 1 or Rule 7 of the Rules of the Supreme Court. They seek to plead that the plaintiff'S alleged causes of action did not arise within three years before the action was begun and is barred by operation of s.11 of the Limitation of Actions Act 1974. In addition, they seek an order that the action be dismissed pursuant to Order 39 Rule 12, or alternatively an order that the statement of claim be struck out pursuant to Order 22 Rule 31, and or alternatively, Rule 32. -- 2 of 8 -- 3 It is convenient to deal with the defendants' applications for summary relief first. Mr McMurdo Q.C. argued on their behalf that the plaintiff's claim is clearly statute-barred so the case should be stopped now. He referred to Ronex Properties v. John Laing [1983] 1 Q.B. 398, Gemy Nominees Pty Ltd v. Pargas Nominees Pty Ltd & Ors [1986] A.T.P.R. 1140- 720, and Callinan v. West Australian Newspapers Ltd [1988] W.A.R. 212. The plaintiff's allegation paragraph 7 of the further amended statement of claim, so far as it is relevant to this application, is that he suffered considerable mental pain, anguish, and anxiety as a result of the torts of the defendants. Although the general principle embedded in the common law is, as Devlin J. said in Behrens v. Bertram Mills Circus [1957] 2 Q. B. 1 at p. 28, that mental suffering caused by grief, fear, anguish and the like is not assessable, once liability for certain torts has been established compensation for injury to , feelings may be included in the damages: McGregor on Damages 15th ed. (1988) para. 89, p.49. Among the examples McGregor gives of such torts are: "torts which primarily protect reputation, certainly in libel and in slanders actionable per se"; "most probably" malicious prosecution, assault, and deceit; and "[nncreasingly in trespass to property or nuisance" (ibid) . The plaintiff having pleaded mental distress and anxiety, the question that arises on this application is whether his action must be characterized as an action for damages for breach of duty in which the damages claimed consist of or include damages in respect of personal injury. Section 11 of the Limitations of Actions Act 1974 provides for a limitation period of three years in such cases: "Actions in respect of personal injury 11. Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the .duty exists by virtue of a contract or a provision made by or under a statute -- 3 of 8 -- 4 or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose. " The expression "personal injury" is defined in s.5: '''personal injury' includes a disease and an impairment of a person's physical or mental condition;". It was not challenged before me that the plaintiff's is an action for damages for breach of duty. There is no allegation of a disease or impairment of the plaintiff's physical condition, but do the damages claimed consist of or include damages in respect of impairment of the plaintiff's mental condition? On behalf of the defendants it was argued that they do. "Impairment" is "[t]he action of impairing, or fact of being impaired; deterioration; injurious lessening or weakenjrrg" and the transitive verb "impair" means to "make worse, less valuable, or weaker; to lessen injuriously; to damage, injure": The Oxford English Dictionary, 2nd ed. (1989), vol. VII, p.696. Defining "injury" as "impairment" is then tautological since the notion of injury is inherent in the concept of impairment. In my view it is clearly arguable that the plaintiff's allegation is, not that the conduct complained of made his mental condition worse, less valuable, or weaker, or of that conduct's lessening injuriously, damaging, or injuring his mental condition. Properly understood, it could fairly be argued, the allegation is of his reacting, his mental condition intact, to the alleged wrongs with the normal human reactions of mental distress and anxiety. In short, it is arguable that there is no allegation of impairment of the plaintiff's mental condition, but rather an allegation, familiar in cases in the categories mentioned by McGregor, of a normal response of an uninjured mind. Putting it in other words, what is alleged is a normal response of one with an unimpaired mental condition - what Smith J. referred to in Graham v. Robinson [1991] 1 V.R. 279 as "emotional hurt" not personal -- 4 of 8 -- 5 injury. I see no support for the defendants' argument in Wright v. Bard [1979] Qd.R. 179. In that case a question was whether the plaintiff suffered personal injury as a result of the defendants' breach of duty causing antibodies to occur in her blood. W.B. Campbell J. observed: "Personal Injury means Injury to the person as distinct from injury to property; in other words, it is analogous to bodily injury. Personal injury does not mean merely physical injury but includes mental disturbance and nervous shock. As Lord MacMillan said in the famous case of Bourhill v. Young (1943) A.C. 92, at p.l03: 'The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer's system. And a mental shock may have consequences more serious than those resulting from physical impact.'" (p.187) One author has pointed out that "[l]awyers have continued to use the odd and anachronistic expression 'nervous shock' to denote psychiatric illness, despite the fact that it has long since ceased to be used by psychologists and psychiatrists": Martin Davies, Torts, 2nd ed. (1995), para.12.3.1, p.166. The following passage from the judgment of Brennan J. in Jaensch v. Coffey (1984) 155 C.L.R. 549 makes it clear that illness is a necessary element to establish liability for nervous shock: "The notion of psychiatric illness induced by shock is a compound not a simple, idea. Its element are, on the one hand, psychiatric illness and, on the other, shock which causes it. Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them. It is not surprising that Lord Macmillan noted in Bourhill v. Young . . . that 'in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability'. I understand 'shock' in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness." (pp.566-567) -- 5 of 8 -- 6 I do not understand W.B. Campbell l.'s reference to "mental disturbance" in Wright v. Borzi to be to a condition free of, or different from, psychiatric illness. In a previous interlocutory application in this action, an application by the plaintiff for leave to amend the further amended statement of claim by adding claims against the second and fourth defendants for misfeasance in public office and collateral abuse of process, Moynihan S.l.A., in a decision handed down on 24 October 1996, came to a view at variance with the one I have, with respect to his Honour, reached concerning the allegation of paragraph 7 of the further amended statement of claim. His Honour said: "The application to amend the statement of claim relies on 0.32 rr.1(l) and 1 (5) of the Rules of the Supreme Court. The plaintiff did not persist in reliance on s.38(1)(b) of the Limitations oj Action Act 1974 ("the Act"). It seems material to determine the limitation period applicable to the proposed causes of action. A cause of action is, simply a factual situation, the existence of which enables a person to obtain from the court a remedy against another person: Leetang v. Cooper (1965) 1 Q. B. 232 at 342, Do Como v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234 at 245. It was accepted before me that the cause of action in respect of the proposed causes of action had arisen prior to the events of 20 May 1985 which gave rise to the causes of action presently the subject of the 1988 action. That would seem to be so; the plaintiff's case founding the proposed causes of action may be summarised as that his arrest and prosecution were directed in bad faith at Ministerial level. This, it is contended, was first revealed as a consequence of the discovery of notes or minutes concerning cabinet meetings ("the cabinet minutes") prior to May 1985 by an affidavit of further discovery filed by the State of Queensland on 28 August 1990. The accrual of a cause of action however does not appear to depend on the plaintiff's knowledge: Do Como v. Ford Excavations Pty Ltd (ante) at 241, Cartledge v. E. Jopling & Sons Ltd (1960) A.C. 758 and Hawkins v. Clayton (1988) 164 C.L.R. 539 particularly at 561. The torts of misfeasance in public office and of collateral abuse of process found actions for breach of duty; as to the former see Northern Territory v. Mengel (1995) 129 A.L.R. 1 at 37; and as to the latter see Williams v. Spautz (ante) at 522. In both the current and the proposed pleading there is a claim for "significant and considerable pain and mental anguish" and "anxiety". Section 5 of the Act defines "personal injury" to include "an impairment of a person's .. mental condition". Personal injury has been construed to include mental -- 6 of 8 -- 7 disturbance Wright v. Borzi [1979] Qd.R. 179 at 187. Section 10(1) (a) of the Act provides for a limitation period of six years from the date on which the cause of action arose in respect of an action founded on tort where the damages claimed "do not consist of or include damages in respect of personal injury to any person." Section 11 of the Act relevantly provides that in the case of an action for breach of duty (whether by virtue of contract or statutory provision or independently of a contract or statute) in which the damages claimed include damages in respect of personal injuries the limitation period is three years. It would therefore seem that the limitations period applicable to the proposed causes of action is three years and that it had expired prior to 20 May 1988." It was pointed out to me by Mr Morrison Q.C., on behalf of the plaintiff, that it was not necessary to his Honour's decision to determine that the plaintiff's action was statute-barred by s.lI of the Limitation oj Actions Act, since on any view of the facts it was statute-barred if the six-year period of limitation applied to it. His Honour refused leave to amend the further amended statement of claim observing that the expiration of the limitation period was, relevant to, but not determinative of, the exercise of the Court's discretion. For the reasons I have given I am not satisfied that it is so clear that the plaintiff's claim is statute-barred as to warrant granting the summary relief sought, but I accept Mr McMurdo's submission that the proposition that the plaintiff's claim is statute-barred is arguable. The question then arises whether the Court's discretion should be exercised in favour of the defendants to permit them to raise the proposed defence. The considerations relevant to the exercise of that discretion have been explained in a number of cases: Cropper v. Smith (1884) 26 Ch. D. 700, Clough and Rogers v. Frog (1974) 4 A.L.R. 615, Ketteman v. Hansel Properties Ltd [1987] A.C. 189, The Commonwealth v. Venvayen (1990) 170 C.L.R. 394, and State oj Queensland and Anor. v. l.L. Holdings Pty Ltd (1997) 141 A.L.R. 353. It is relevant to note that this case is on the supervised case list. In State oj -- 7 of 8 -- 8 Queensland and Anor v. J.L. Holdings Pty Ltd the following appears in the judgment of Dawson, Gaudron, and McHugh JJ. concerning case management: "Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion." (pp.357-358) In this case no explanation has been offered by the defendants for the lengthy delay in raising the issue of the limitation period, which appears to have been first raised only late last year. This case has not lacked attention: there has been a number of interlocutory steps including an appeal to the Court of Appeal. On the other hand, although the case is on the supervised , case list no date has yet been set for its hearing. The amendment if permitted will not raise complex issues of fact. There is no evidence before me from which it could properly be concluded that, if the amendment is permitted, the plaintiff will suffer any prejudice which cannot be compensated by an appropriate order for costs. No question of estoppel or waiver arises. In those circumstances the defendants will have leave to make the proposed amendment to their pleading, but I shall refuse the summary relief they seek. I shall invite further submissions on the costs of this application. -- 8 of 8 --