Cavenett v Commonwealth

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7911 of 1996

JOHN ROBERT CAVENETT
	Appellant
v.
COMMONWEALTH OF AUSTRALIA
	Respondent

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JUDGES:	MAXWELL ACJ, CHERNOV and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2006
DATE OF JUDGMENT:	10 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 88

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TORT – Collision between two ships – Mental injury – Post-traumatic stress disorder – Knowledge by plaintiff of “personal injury” for purpose of s 5(1A) of Limitation of Actions Act 1958 – Subjective test – Burden of proof as to operation of s 5(1A) – Whether s 5(1A) operates as exception or qualification to s 5(1)(a) of the Act – Statutory history of s 5(1A) – Finding of facts challenged – DSM-IV not statutory formula – Rejection by trial judge of expert medical evidence – Limitation of Actions Act 1958 ss 5(1A), 5(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J H Kennan SC with	Hollows
Mr K D Mueller
For the Respondent	Mr T J Casey QC with Mr R W Dyer	Australian Government Solicitor

MAXWELL ACJ:

I have had the considerable advantage of reading in draft the respective judgments of Chernov JA and Nettle JA.

For the reasons given by Chernov JA, I consider that the learned Judge was correct to treat the plaintiff as bearing the onus of bringing himself within s 5(1A) of the Limitation of Actions Act 1958.

I agree with their Honours that, where a plaintiff is seeking damages for mental injury, time does not begin to run until the plaintiff knows that his or her mental condition is a mental illness which would be recognised by the medical profession as such.

I agree with Nettle JA, for the reasons which his Honour gives, that the learned Judge applied the wrong test and that, when the correct test is applied, the plaintiff did discharge the onus resting on him. Accordingly, I agree with the orders proposed by Nettle JA.

CHERNOV JA:

The appellant, John Robert Cavenett, appeals against the decision of a judge of the Trial Division of 24 August 2005 whereby his Honour dismissed his claim for damages for personal injuries – more particularly, post traumatic stress disorder

(“PTSD”) – that he claimed, by writ issued on 15 November 1996, to have suffered as a result of the respondent’s negligence. It was the appellant’s case that those injuries arose when, at the age of 21 years and a member of the crew of the aircraft carrier HMAS Melbourne, he experienced the aftermath of the collision between his ship and the destroyer HMAS Voyager, at about 9 pm on 10 February 1964, approximately 32 kilometres southeast of Jervis Bay in New South Wales. As a result, the Voyager sustained substantial damage, eventually sinking with the loss of over 80 lives and many of her crew suffering injuries.

Background circumstances

The background circumstances to the appellant’s claim were these. The appellant was born on 1 August 1942 in South Australia. As a boy he had an interest in first aid and joined St John’s Ambulance in 1952. In 1957 he left school at the end of year 10, having failed to obtain a pass mark in any of the subjects. He worked in various occupations for the following 12 months or so and, on 28 September 1959, at the age of 17 years, joined the Royal Australian Navy. After some basic training, the appellant completed a course in late 1961 which qualified him as a sick berth attendant. As his Honour described it, the position is, in effect, that of a nurse and paramedic. In 1962 he completed a theatre assistant course, thereby achieving a skilled position within the Medical Branch of the Navy. On 22 October 1963 he was posted to HMAS Melbourne as the assistant sick berth attendant.

At the time of the collision he was in the sick bay, on duty as a crash boat medic. The crash boat crew was on duty because of the risk that one of the aircraft from the ship may crash when attempting to land or take off. The appellant said that he felt the collision and, after going outside to investigate, returned to the sick bay and donned foul weather gear. He then got into the crash boat that was launched and headed towards voices that could be heard in the water. He told his Honour that the seas were very rough, that it was dark and that he was scared. His Honour, however, found that the sea swell was four to five feet (and not in the order of 30 feet as the appellant claimed) and that it was “a pleasant summer’s night with a slight breeze”. Be that as it may, the appellant helped to pull injured sailors out of the water into the crash boat or assisted them into the boat from life crafts. He said that at one point, when attempting to move from the crash boat to a raft, he slipped and fell into the water. Initially he thought he would drown but eventually he rose to the surface. After about 30 minutes, the crash boat returned to the Melbourne that was then taking water. The appellant said that by that time he was scared and crying. He was told by a superior to return to the crash boat and, although at first he said he did not wish to go back, he eventually did so, rescuing more sailors out of the sea and providing medical treatment to them. When his boat returned to the HMAS Melbourne, he said, the swell was too great to enable the passengers to be offloaded so it had to go to Jervis Bay where he helped treat the survivors before going to bed. He said that he thought he was then in shock.

The appellant eventually returned to HMAS Melbourne while it was undergoing repairs in Sydney. He said that by that stage he was angry at the Navy because of the way it had treated him; he felt that it “had not done enough”. He claimed that his anger and distress were aggravated by the fact that he and others from the HMAS Melbourne were abused and criticised and called murderers, not only by other members of the Navy but also by the public and the media. He said things worsened to the point where he did not like going ashore. The Royal Commission into the collision commenced in March 1964 and continued for some time. During that period in particular, those associated with the HMAS Melbourne were subjected to considerable scrutiny and adverse criticism. The appellant said that, effectively, he was forbidden by the Navy to discuss the collision with others and that this was reinforced after he completed his statements to the Royal Commission. As a result, he essentially kept the matter to himself.

The appellant claimed that as a consequence of these events he experienced thereafter a range of problems that included poor sleep, waking up after nightmares, sweating profusely in bed and, on occasions, screaming out. The nightmares, he said, had a constant theme, namely, that he was under the water, feeling that he was drowning and looking up to see a halo of light, and also something going past and/or scraping the ship. The nightmares, he said, occurred two to three times per week; he became terrified of the sea and sometimes had dreams that it was blood red. He said that, after the collision, he commenced to drink heavily because this helped him to sleep and had a real fear of water, being uneasy in small ships whilst at sea. His Honour noted, however, that, by way of contrast with his claim that he was frightened of the sea, the appellant not only re-signed for further duties on a number of occasions after 1964, but sought a transfer to the electrical branch of the Navy on the basis that he otherwise would not have enough “sea time”. It was the appellant’s case that, unbeknown to him, he commenced to suffer the symptoms of PTSD within a few days of the collision and, although he had ready access to free medical treatment, he never sought help for his mental condition.

Not long after the collision, the appellant was posted to shore bases, with the result that his condition improved. Notwithstanding this, he said, he continued to experience nightmares on a regular basis, smoke and drink heavily and he became withdrawn. In July 1970 the appellant was posted to HMAS Derwent and remained with that ship for some 18 months. He said that being on a relatively small ship at sea, he became very agitated and scared, sleeping badly and having nightmares that involved the same pattern, namely, being under water and drowning, with a halo of light above and hearing something scrape down the side of the ship. He said that it was during this voyage that he started to relive the fear of a collision. The appellant told Dr Giarratano, a clinical psychologist who gave evidence on his behalf, that on the Derwent he had difficulty in sleeping below. He said that this caused him to have nightmares associated “with getting out if we were involved in a collision” and that “as [he] was the ‘medic’ [he] had access to antidepressants and took Sinequan to help control this without the doctor being aware.”

In about mid 1972 the appellant was posted to a land base and, thereafter, until his resignation from the Navy in 1979, he was at various land bases throughout Australia. Shortly prior to his resignation he reached the rank of Chief Petty Officer Medical.

On 23 October 1973 the appellant married Maxine Joyce. Initially their relationship was sound but by 1986 it had irretrievably broken down and thereafter, for some two years, they lived under the same roof but pursued separate lives. They divorced in 1988. In about April 1990 the appellant cohabited with another woman but later that year, after he asked her to leave, she committed suicide by gassing herself. The appellant found her body in the garage and, unsurprisingly, was extremely upset about the matter. He married again in 2000.

As I have noted, the appellant resigned from the Navy in late 1979 and left in early 1980. He first told his Honour that he did so because he thought he would not receive further promotion and wanted to start a new life. Although he initially denied the suggestion put to him in cross-examination that he left because he became entitled to a pension and was negotiating to purchase a business, in the end he conceded that this was the case. Be that as it may, after he left the Navy he held various jobs until 1996. By this time, his lower back problem, which was first diagnosed when he was in the Navy, became worse and his disability pension arising from it was increased progressively, rising to 100 per cent in November 1998. He was also provided with a gold card which entitled him to receive free medical services.

The appellant contended that it was not until 2 September 1996, when he first saw Dr Lambeth – who became his treating psychiatrist and who gave evidence on his behalf – that he first knew that he was suffering from PTSD as a result of the collision. The circumstances leading to his consulting Dr Lambeth, said the appellant, were these. Some time in 1995 he saw a newspaper article concerning a firm of solicitors that had represented, over the years, many ex-servicemen in their claims for damages arising out of the collision. As a consequence, he wrote to the solicitors on 16 November 1995 about his condition. Later, he made contact with a totally permanently incapacitated Vietnam veteran who held himself out as a Veterans’ Advocate and signed an application form, completed by the advocate, to the Commonwealth Department of Veterans’ Affairs seeking a disability pension. The disability that was alleged was “post traumatic stress disorder and insomnia”. In response to the question “How did service cause the disability?” the answer was “stress of service”. In the event, on 2 September 1996, as I have said, the appellant was examined by Dr Lambeth.

As his Honour observed, in his letter to the solicitors, which referred briefly to the appellant’s inability to go below deck while serving on the Derwent, the appellant did not mention that he suffered from nightmares, excess alcohol consumption or depression.

Decision below

A great deal of psychiatric evidence was called by both sides on the question whether the appellant suffered from PTSD and, if so, whether that was brought about by the collision. As will be explained more fully later, his Honour was critical of this evidence. First, the judge said, none of the doctors who examined the appellant considered whether he had suffered from PTSD during the first two years or so following the collision. His Honour considered that this was relevant to the determination of the question whether the appellant’s condition could be properly attributed to the collision. Secondly, the judge noted a number of significant deficiencies in the evidence of those witnesses, which included their reliance on the appellant as an historian who was, according to his Honour, unreliable. His Honour also noted their lack of access to the appellant’s relevant service and other records that were available to his Honour and their failure, variously, to have due regard to the aspects of the PTSD tests set out in the Diagnostic and Statistical Manual of Mental Disorders: DSM-IV, 4^th ed, Washington DC, 1994 (“DSM-IV”). His Honour was of the view that, by 1996, there were many factors that could explain why the appellant was suffering from mental problems that included his mild depression, his broken marriage, his physical disability due to his bad back, the suicide of the woman with whom he had been living, the cancers from which he suffered, his advancing years and the litigation process which the judge said effectively “commenced” in 1995 when he first read the newspaper article that ultimately led to the instigation of the proceeding. His Honour said that the question of the cause of the appellant’s mental problems was one of fact for the court to determine and concluded that he suffered PTSD as a result of the collision and that this continued for the balance of 1964 but that thereafter the illness resolved until 1971, re-emerging when he was serving on the Derwent. In coming to that conclusion the judge noted that, whilst on the Derwent, the appellant took medication for his mental problems and that they “settled down” after he left the ship.

In terms of the appellant’s credit, his Honour found that he was not a credible witness and did not accept many of his critical assertions, such as the claims that, since the collision, he has been continuously suffering nightmares, that he engaged in excessive alcohol abuse for the period he claimed, that he was difficult to get on with during his naval career, that he had became withdrawn and that he was incapable of carrying out his duties. His Honour also considered that the appellant sought to mislead the court as to why he left the Navy and as to the extent of his fear of water.

Importantly, his Honour went on to uphold the respondent’s limitation defence, rejecting the appellant’s contention that he only became aware of his mental injury within six years of the issue of the proceedings and that, by reason of this, the limitation period was preserved pursuant to the operation of s 5(1A) of the Limitation of Actions Act 1958 (“the Act”). The learned judge considered that, consistently with the principle that “he who asserts carries the onus”, the appellant bore the onus of establishing that he fell within the sub-section. As I will discuss later, his Honour held that, contrary to the appellant’s submission, Pullen v Gutteridge[1] did not say otherwise and that Herschberg v Mula[2] was wrongly decided.
[1][1993] 1 VR 27.
[2](1993) Aust. Torts Reps 81-256.

His Honour concluded that the appellant failed to establish that he first knew that he was suffering from the mental injury after 15 November 1990.[3] The judge also found that the appellant knew that the symptoms about which he complained – the nightmares, etc – which, he said, commenced shortly after 10 February 1964 were caused by the collision. Consequently, his Honour held that the appellant failed to establish that s 5(1A) operated to preclude the operation of s 5(1)(a) of the Act that barred his cause of action.
[3]In the reasons it is said that the relevant date is “after 10 November 1990”. That must be taken as a typographical error given that the proceeding was issued on 15 November 1996, so that the starting date would be 15 November 1990.

His Honour went on to consider the appellant’s damages claim in case it was held on appeal that he had erred on the issue of the limitation defence. The appellant’s claim for damages included a claim for economic loss that was founded on the contention that he was officer material and that, but for his involvement in the collision and its aftermath, his career path in the Navy would have led to promotion to the rank of Lieutenant Commander. He said that he intended to stay in the Navy until he was aged at least 55 and retire with that rank. It was claimed that, given the injuries that he suffered as a result of the collision, he lost the opportunity to achieve that position. His Honour, however, considered that the appellant was never officer material and that the claim in that respect was “baseless and devoid of merit” and reflected on his credibility. There is, however, no need to discuss the claim further because the appellant does not seek to challenge his Honour’s finding in that regard. In analysing the appellant’s entitlement to general damages for pain and suffering and enjoyment of life, his Honour said that there was no evidence that the appellant was suffering from any physical pain as a result of PTSD or of loss of enjoyment of life. In the circumstances, the judge assessed his entitlement to general damages at $20,000.

In the circumstances, his Honour ordered that the proceeding be dismissed with costs.

The appellant’s principal submission was that his Honour erred, in the various ways described below, in concluding that the appellant’s cause of action was statute barred. It will be recalled that his Honour dealt with the appellant’s damages claim on the footing that he erred in his finding on the limitation defence and concluded that, on that basis, the appellant was entitled to general damages in the sum of $20,000. The latter aspect of his Honour’s decision is not under challenge. Thus, if I were to conclude that his Honour did not err in his finding about the limitation defence, the appeal would have to be dismissed. On the other hand, if I were to conclude otherwise, the appellant would be entitled to have the judgment set aside and ordered that, in lieu of it, there be judgment for him in the sum of $20,000. I now turn to consider the specific submissions made by the appellant in support of the principal claim.

Grounds 1-3, 6-8: application of wrong test in determining relevant knowledge

Mr Kennan, for the appellant, first argued that his Honour applied the wrong test in determining whether the appellant knew, for the purposes of s 5(1A) of the Act, that he was suffering from a mental disorder more than six years before the commencement date of the proceedings – 15 November 1996. Consequently, it was said, the impugned conclusion on the limitation defence should be set aside. Counsel submitted that the test for determining whether the appellant had relevant knowledge was whether he realised that he was suffering from a recognisable psychiatric illness (even if he did not know its scientific name). But his Honour, it was said, adopted the approach that relevant knowledge exists if the plaintiff is aware that he or she is suffering from a mental problem, without necessarily realising that it is a recognised psychiatric illness. Thus, the appellant argued, the judge failed to apply the correct criterion in determining if the appellant knew before 15 November 1990 that he was suffering from a “personal injury” for the purposes of s 5(1A) of the Act. It followed, said counsel, that his Honour’s conclusion that the appellant’s claim was statute barred cannot stand.

Mr Kennan developed his submissions broadly along the following lines. First, he said that relevant knowledge involves a realisation that is more than an apprehension or speculation on the part of the plaintiff as to the extent of his or her mental condition. In that regard, counsel referred to the observations of Callaway JA in Paget v JLT Workers Compensation Services Pty Ltd[4], made in the context of analysing s 135AC of the Accident Compensation Act 1985[5], namely, that “the test is ‘knowledge’, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the appellant.” A little later, his Honour said[6]:

“I take knowledge, in this context, to be at least justified true belief. I do not know something unless I believe it and it is true and I have appropriate grounds for my beliefs. The last condition is necessary to distinguish knowledge from speculation or a lucky guess. I do not stay to consider whether there may be further conditions in some cases.”

[4](2005) 12 VR 692 at 699.

[5]The section raises the question whether the claimant had knowledge of the relevant injury prior to the statutory date.

[6]Footnote 22.

It was then contended by Mr Kennan that relevant knowledge is the subjective knowledge by the plaintiff about the extent of his or her mental problems and the concept of constructive knowledge is irrelevant for this purpose. It was said that this was made plain in Paget, Harris v Commercial Minerals Ltd[7] and Commonwealth v Dinnison[8]. Counsel argued that his Honour impermissibly imputed knowledge to the appellant about the state of his mental health by reference to his training and experience in medical matters, and his appreciation of the latter, including, in that respect, his “treatment of RAN personnel for depression and mental-type problems”. Thus, it was said, his Honour dealt with the issue on the wrong premise. Mr Casey, for the respondent, accepted, rightly, I think, that the question whether the appellant had the requisite state of knowledge was to be determined on a subjective basis and not by reference to constructive knowledge. Counsel went on to submit, however, that his Honour in fact determined the issue in that way, namely, by reference to what the appellant subjectively realised in that regard. In my view, that submission should be accepted because his Honour’s reasons make it plain that he considered the matter from the appellant’s perspective. Thus, His Honour said that “[i]t is the knowledge of the plaintiff which is the relevant knowledge for the purposes of this section”. And his Honour analysed the issue on that basis. It was plainly open to the judge not to accept the appellant’s claim that he did not know, prior to 15 November 1990, that he was suffering from a mental condition. Moreover, in order to determine the appellant’s subjective state of mind on that matter, it was not inappropriate for his Honour to have regard to the appellant’s “knowledge, background, experience and qualifications, including understanding of medical matters”. In the circumstances, I consider that the appellant’s argument that his Honour attributed to the appellant constructive, as distinct from actual, knowledge of the state of his mental illness must be rejected.
[7](1996) 186 CLR 1.
[8](1995) 56 FCR 389.

I now return to the question whether his Honour applied the correct test in determining whether the appellant knew, for the purposes of s 5(1A) of the Act, that he was suffering from a mental disorder that arose from the collision. The starting point for the consideration of this issue must be the words of the provision which are as follows:

“5(1A). An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from the date on which the person first knows –
(a) that he has suffered those personal injuries; and
(b)that those personal injuries were caused by the act or omission of some person.”

“Personal injuries” is defined in s 3 of the Act as “including any disease and any impairment of a person’s physical or mental condition”. It is plain enough that the sub-section is concerned with whether a plaintiff knew before the relevant date that he or she had suffered “those personal injuries”, being the impairment in respect of which the action is brought. In the instant case, the personal injury in respect of which the appellant has brought the proceeding is his claimed mental disorder that was said to have occurred as the result of negligence that was attributed to the Commonwealth.

The question for determination in a case such as the present is what must be the extent of a plaintiff’s knowledge about his or her mental condition before it can be said that the plaintiff “knows” for the purposes of s 5(1A) of the Act that he or she has suffered the “personal injury” in respect of which the claim is brought. In Falcon v McCann[9] Byrne J said that a plaintiff who suffers from a mental disorder only knows that it is an “injury” for the purposes of s 5(1A) if he or she is aware of its “nature”. And Buchanan JA explained in Calder v Uzelac[10], albeit in the context of considering the operation of s 23A of the Act, that to have relevant knowledge the plaintiff must realise that the mental disorder or illness is one which can be treated by a psychiatrist or psychologist. His Honour relevantly said[11]:

“It is one thing to know that a physical pain or discomfort constitutes illness that can be alleviated by medical treatment; it is another to realise that states such as anxiety and the difficulty in forming and maintaining relationships with other persons and events such as nightmares may amount to mental disorder or illness that can be treated by psychiatrists or psychologists.”

In Donnelly v State of Victoria[12] O’Bryan J accepted that where a plaintiff claims damages in relation to a mental disorder, relevant knowledge exists for the purposes of s 5(1A) if the plaintiff knows that he or she is suffering from a mental injury, without necessarily appreciating its medical or scientific name.

[9][1998] VSC 83 at [13].

[10][2003] VSCA 175.

[11]At [10].

[12]Unreported, 30 June 1994, Supreme Court of Victoria, O’Bryan J.

In the present case, his Honour said in effect that the appellant “knew” that his mental condition was an “injury” for the purposes of s 5(1A) because he knew that it was a “mental injury” that resulted from the collision. More particularly, his Honour said:

“…the symptoms and dramatic changes in his mental well-being which continued for about 12 months and re-surfaced [in 1971] led him to a state of knowledge that he was suffering from some mental injury. In my opinion it is not necessary to know the actual mental injury by name. It is sufficient if he has the symptoms which he knows [are] affecting his mental condition and is suffering from a recognised psychiatric injury.”[13]

A little later the judge referred to the appellant having knowledge in 1970 that he was suffering from a “mental injury”. It is true that, in some passages of his reasons, his Honour speaks of the appellant being aware of suffering from a “mental condition” and “mental-type injuries”, thus seemingly accepting that a plaintiff has relevant knowledge if he or she appreciates, in general terms, that he or she is suffering from a mental problem. But, I consider that, on a fair reading of the reasons, it is plain enough that his Honour considered that the appellant would only have relevant knowledge for the purpose of s 5(1A) if he knew that he suffered from a “mental injury” as distinct from a lesser form of psychological impairment such as grief or anxiety. Thus, it seems to me that the test posed by his Honour as to the content of the relevant knowledge for the purpose of s 5(1A) was not out of accord with what was said in that regard in Donnelly, Calder and Falcon.

[13]It was common ground that his Honour’s reference to the appellant “suffering from a recognised psychiatric injury” was a reference to the condition precedent that the appellant had to satisfy in order to succeed in his claim, rather than this being a description by His Honour of what the appellant had to know before it could be said that he had relevant knowledge for the purpose of s 5(1A).

Mr Kennan nevertheless argued that even if his Honour considered that the content of the relevant knowledge had to be, at least, a “mental injury”, that would not be sufficient to constitute knowledge for the purposes of s 5(1A). Counsel maintained that a plaintiff with a mental disorder does not have relevant knowledge for the purposes of the sub-section until he or she realises that the mental condition under which he or she labours is a recognised psychiatric illness. Hence, it was said, his Honour applied the wrong test for the purpose of determining this issue. In support of his submission as to what can amount to sufficient “knowledge” in a case such as the present, Mr Kennan pointed to a series of cases dealing with a like issue under comparable New South Wales legislation, more particularly, ss 60G and 60I of the Limitation Act 1969 (NSW). Section 60G(2) reposes in the court the discretion to extend in certain circumstances the limitation period for a cause of action for such time as it thinks appropriate and one of the matters that it must determine in an application under that provision is whether it is “just and reasonable” to grant the extension sought. Section 60I(1), however, effectively prohibits the court from making such an order unless it is satisfied that:

“(a) the plaintiff:
(i) did not know that personal injury[14] had been suffered, or
[14]Personal injury is defined in s 11(1) of the Act as including “any impairment of the physical or mental condition of a person”.
(ii)was unaware of the nature or extent of personal injury suffered, or
(iii)was unaware of the connection between the personal injury and the defendant’s act …

(b)the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters [listed above]”.

The authorities that deal with these provisions, such as Commonwealth v Smith[15], essentially state that a plaintiff who suffers from a mental condition by reason of the defendant’s negligent conduct is not taken to know that he or she has suffered a “personal injury” for the purpose of the above provision unless he or she realises that the mental condition constitutes a “recognised psychiatric illness”. The authorities dealing with the New South Wales legislation were referred to his Honour in this case by counsel for the appellant, but the learned judge considered that they did not assist him in construing s 5(1A) of the Act because they dealt with “different legislation”. Mr Casey submitted that this was understandable given that there are material differences between the provisions. It was said, for example, that s 60I is essentially a “gateway provision” to the exercise of the discretion under s 60G (which relevantly corresponds to s 23A of the Act) whereas s5(1A) of the Act is not a “gateway” to the exercise of discretion under s 23A, but in effect provides an exception to the limitation period prescribed by s 5(1)(a). Under the New South Wales legislation, it was argued, even where the applicant has passed through the “gateway” he or she must nevertheless persuade the court that it would be “just and reasonable” to grant an extension of time and that one of the matters relevant to this determination is whether a fair trial is possible. On the other hand, it was pointed out for the respondent, once s 5(1A) is satisfied, no such further consideration is required and the plaintiff can proceed with the claim unconcerned about the limitation period, although at trial he or she must establish that the mental disorder is a recognised psychiatric illness.

[15][2005] NSWCA 478.

It seems to me, however, that notwithstanding these differences in the legislation, and given the similarities in the respective definitions of “personal injury”, the relevant matter to be considered under s 60I(1)(a)(i) of the New South Wales Act, is essentially the same as that which arises for consideration under s 5(1A) of the Act. In the circumstances, I think, the decisions on the New South Wales provision are not irrelevant to the resolution of the present question. Consequently, it is appropriate to look a little more closely at what was said on the issue in Smith, which is a leading authority on this topic in New South Wales. As I have mentioned, the relevant issue in that case was whether the plaintiff with a mental disorder knew that he suffered a “personal injury” in respect of which he sought to bring an action. Handley JA said in that case[16]:
[16]At [16].

“Thus the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by ‘professional medical opinion’. Accordingly a plaintiff, such as Mr Smith, who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury.”

And Santow JA said[17]:
“The section focuses in a case such as this on the capacity of someone suffering mental injury to become aware that his symptoms, even distressing ones, represent a psychiatric condition; that is to say, using the language of the statutory definition of ‘personal injury’, to become aware that they represent ‘impairment of [his] … mental condition”.

It was relevantly said by Basten JA[18] that the question faced by an applicant such as Smith is:
“… whether [he was] aware that [he] had an illness at all. If [he] did not, prior to diagnosis, then the proper conclusion should be that [he] did not know that ‘personal injury had been suffered’. In other words, the authorities appear to support the proposition that, at least in the case of mental impairment, diagnosis and identification by a technical name or description, being one accepted by psychiatrists or psychologists, may in fact be an essential element of the relevant level of awareness. That is in part because the Limitation Act should be understood as picking up the concept of ‘personal injury’ in the sense necessary to constitute a basis for a claim for damages which, in the case of a mental condition, must be a cognizable psychiatric illness. Approached in this way, the cases dealing with physical conditions may be understood as holding that the ‘nature and extent’ of an injury may be known without knowing the relevant medical label. In the case of a mental condition, the question is whether the victim is aware that he or she suffers from a cognizable psychiatric illness (which may involve knowledge of its name) for the purposes of sub-par (a)(i).”

Thus, it is apparent that, in the context of the New South Wales provision that relevantly corresponds to s 5(1A) of the Act, a plaintiff with a mental condition is not regarded as being seized of relevant knowledge unless he or she realises that the mental condition is a mental illness that is recognised by psychiatrists as such.

[17]At [104].

[18]At [181].

Assuming that this test applies for the purpose of determining whether the appellant had the requisite degree of knowledge about his mental disorder for the purposes of s 5(1A), the question arises whether the criterion used by his Honour to determine this issue was inconsistent with this test. It is true that his Honour did not use the term “recognised psychiatric illness” when speaking of the extent of the appellant’s knowledge of his mental condition. But it is apparent that this is what his Honour had in mind when determining whether the appellant possessed such knowledge. In terms, what he said, as I have noted, was that knowledge by the appellant that he was suffering from a “mental injury” amounted to knowledge for the purposes of s 5(1A). But when that statement is looked at in the context of his Honour’s reasons it is apparent that the criterion his Honour adopted for resolving this issue was not relevantly different from that used in Smith. Thus, for example, it is plain that his Honour regarded “mental injury” as a synonym for “mental illness” and as being distinct from lesser mental problems, such as anxiety or grief. Importantly, in dealing with this issue his Honour was well aware that, in order to succeed in the action, the appellant was required to establish that his mental illness is a compensable psychiatric illness, more specifically, a recognised psychiatric illness.[19] And in dealing with the question whether the appellant had the requisite state of knowledge in 1964-1965, his Honour effectively treated the appellant’s mental injury as a compensable psychiatric injury. The judge’s conclusion was that the appellant did not then know that he was suffering from a “compensable psychiatric illness”. This conclusion was reached “with some hesitation” and, as has been explained, his Honour went on effectively to hold that in 1971 or some time thereafter prior to 15 November 1990 “… the only thing [the appellant] did not know was that he was suffering from a mental injury known as PTSD”. In the circumstances, I think it is plain enough that when his Honour spoke of the appellant suffering “mental injury”, that encompassed not only “mental illness”, but such illness as was recognised as a psychiatric illness, here PTSD (although obviously unknown to the appellant by that name).
[19]See, for example, Tame v New South Wales (2002) 211 CLR 317 at 329 per Gleeson CJ and Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 per Windeyer J.

Thus, it seems to me, as I have said, that the criterion that was used by his Honour in determining whether the appellant was possessed of relevant knowledge was not materially different from that contemplated in Smith. Consequently, I would reject the appellant’s claim that his Honour failed to apply the appropriate test for determining whether he was seized with relevant knowledge for the purposes of s 5(1A) of the Act.

Ground 22: burden of proof

It was contended for the appellant that, if his Honour did not apply the wrong test in finding that the appellant was possessed of relevant knowledge for the purpose of s 5(1A), he erred in concluding that the appellant bore the onus of establishing that s 5(1A) of the Act applied. Hence, it was said, his Honour’s conclusion that the appellant’s claim was statute barred must be set aside. The context in which the issue was considered was the following. The appellant pleaded in paragraph 8 of his Amended Statement of Claim that his injuries “are a disorder within the meaning of s 5(1A) of the [Act] and the plaintiff first knew that he suffered such injuries and that they were caused by and resulted from the incident … in or about April 1996.” In its Further Amended Defence the respondent admitted that PTSD is a disorder within the meaning of s 5(1A), but denied that the appellant “is suffering from post-traumatic stress disorder or any other disease or disorder within the meaning of s 5(1A) of the [Act] as the result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964.” It otherwise joined issue with the appellant’s allegation in paragraph 8.

It was the appellant’s case below that the respondent had the burden of establishing that s 5(1A) did not apply such as to exclude the operation of s 5(1)(a) of the Act. It seems that, in support of this claim, the appellant relied on what Southwell and O’Bryan JJ said in Herschberg v Mula concerning the operation of s 5(1A). Relevantly, their Honours said[20]:

“The appellants (the defendants) carried the burden of proof in the Court below. See Pullen v Gutteridge [1993] 1 V.R. 27 at 71-74. The appellants who pleaded the statute of limitations carried the burden of proving that the respondent’s damages fall outside the protection afforded by s5(1A) of the Act. The appellants must also satisfy this Court that the damages claimed by the respondent do not consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by her.”

It is plain enough that their Honours sought to apply Pullen v Gutteridge[21] to the situation before them. In Pullen the court concluded that it was for the defendant to establish that the plaintiff’s cause of action is statute-barred. Their Honours explained[22] that the reason for this was that it was no part of the plaintiff’s cause of action that the claim was not statute-barred so that it was for the defendant to plead the statute if it sought to rely on it and establish that it operated in the circumstances of the case.[23]

[20]At 62,667.

[21]Brooking, Tadgell & Hayne JJ at 73-74

[22]At 73, 74.

[23]Their Honours made it plain that the defendant carried the burden on this issue even if the plaintiff pleaded in its statement of claim, contrary to sound practise, that the cause of action arose within the limitation period.

As I have mentioned, the learned trial judge in this case considered that their Honours in Herschberg misread what was said in Pullen and that it was the plaintiff – here, the appellant – who carried the onus of establishing that s 5(1A) applied so as to avoid the limitation defence. His Honour gave a number of reasons for this conclusion that include the following. First, he considered that what he called “the general rule” that “he who asserts must prove”[24] applied so that, given that it was the appellant who claimed that s 5(1A) applied in answer to the limitation defence, it was for him to make good that claim. Secondly, the judge said that, on the pleadings, the appellant took upon himself the obligation to prove that s 5(1A) operated given that he asserted, as I have said, that the provision operated in his favour. The respondent’s limitation defence, said his Honour, amounted to no more than confession and avoidance.[25] Moreover, his Honour seems to have treated s 5(1A) as an exception to s 5(1)(a) on which the appellant sought to rely so that, consistently with what was said in that regard in Vines v Djordjevitch[26] and Dowling v Bowie[27] the onus was on the appellant to prove its application to this case.
[24]In that regard his Honour cited Constantine Steamship Line v Imperial Smelting Corporation [1942] AC 154.
[25]His Honour acknowledged that the appellant made the assertion in the amended statement of claim but said that even if this allegation was pleaded, as it should have been, in the reply, the same result would have followed.
[26](1955) 91 CLR 512.
[27](1952) 86 CLR 136.

It seems to me that the authorities recognise that where, as a matter of substance, a legislative provision enables a right or liability created by the statute to be defeated, the onus of establishing that the provision applies rests on the party seeking to invoke its operation. Put another way, where on its proper characterisation a provision can be said to be a qualification, exception or proviso to a general rule created by the statute, the burden of proof lies with the party seeking to fall within the qualification. This is particularly so where such a provision requires certain matters to be established before it can operate. The question whether the section has this effect is one of statutory interpretation and the necessary inquiry is whether it is to be characterised as a precondition or element of the right or liability created by the statute on the one hand, or, on the other, an exception to the right or liability which will otherwise operate. Thus, as the court said in Vines[28]:

“When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.”

[28]Dixon CJ, McTiernan, Webb, Fullagar and KittoJJ at 519-520.

And in Dowling[29] Dixon CJ referred to “the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it”. His Honour continued:

“A qualification or exception to the general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it.”

This is to be distinguished from a case where the provision “contains within itself the statement of the exception or qualification”[30] or where it constitutes “a statement of the complete factual situation which must be found to exist”[31].

[29]At 139-140 per Dixon CJ.

[30]At 140 per Dixon CJ.

[31]Vines at 519.

Vines dealt with s 47(1) of the Motor Vehicle Act 1951 that allowed a plaintiff to sue a nominal defendant where death or injury was caused by a motor vehicle in circumstances where the driver could not be found. The right arose “provided that” necessary notice requirements were fulfilled within a certain time. It was held that this “proviso” was not an exception to the right to sue the nominal defendant but was, in fact, a necessary precondition to it.[32] Accordingly, the burden remained on the plaintiff to show compliance with the relevant notice requirement. Similar reasoning was employed by Fullagar J in Barrit v Baker[33]. In that case the relevant provision was s 214 of the Justices Act 1928 which provided that proof of exceptions to an offence did not rest upon the Informant. In that context the court was required to consider the Police Offences Act 1928 that proscribed betting in a street where “street” was defined as “not including a racecourse”. On appeal, his Honour held that the place was an essential element of the offence, meaning that it remained necessary for the Informant to prove that the defendant was not betting on a racecourse – that is, the relevant provision was held not to operate as an exception to liability but to be a necessary element of it.
[32]At 519-520.
[33][1948] VLR 491.

On the other hand, it was held in Banque Commerciale SA v Akhill Holdings Ltd[34] that the burden shifted to the party seeking to rely on the proviso to defeat the limitation defence. In that case the High Court considered the burden of proof under s 69 of the Trustee Act 1925 (NSW) that imposed a six year limitation period on the bringing of a suit for breach of trust “provided that this section shall not affect any action suit or other proceeding where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was part or privy…”. It was held[35] that the onus of proving fraud under s 69 rested on the party who alleged it. Their Honours said:

“The substance of the proviso to s 69(1) of the Act is to allow a limitation defence to be defeated. This is in itself a consideration of substance for placing the onus of proof on the party seeking to defeat the defence… It is also a significant matter of substance that is fraud that may defeat the defence.”

[34](1990) 169 CLR 279.

[35]At 285 per Mason CJ and Gaudron J.

Another case where the burden shifted to the party seeking to rely on the proviso was Darling Island Stevedoring and Lighterage Ltd v Jacobsen,[36] a case that concerning the interpretation of the Workers Compensation Act (1926-1942) that provided, inter alia, that where a worker has received injury “without his own default or wilful act” the worker or dependants shall receive compensation. The question arose whether the burden was on the plaintiff or defendant employer to establish that the injury was received as a result of the worker’s own “default or wilful act”. In construing the legislation Dixon J said[37]:

“If these words are but part of the legislative attempt to define the conditions upon which the worker’s right to compensation arise, then, like all other ingredients or elements in a cause of action or title to claim, proof of the fulfilment of the conditions they describe must lie with the claimant. But if the true nature of the qualification is to introduce a new matter, not part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting default or wilful act by way of answer”.

[36](1945) 70 CLR 635.

[37]At 643.

The proper characterisation of a provision, and thus the question where the burden of proof lies, is to be determined, as Dixon CJ said in Dowling[38], “in accordance with common law principle upon considerations of substance and not of form.” It is clear enough that the express use of terms such as “exception” or “proviso” is not determinative so that it is necessary to inquire into the substantive effective of s 5(1A). The essential question is whether, on its proper construction and as a matter of substance, s 5(1A) operates as a precondition or element of the defence created s 5(1)(a) or whether it is an exception to the right or liability otherwise established by that section. Put another way, the question is whether s 5(1A) qualifies the general rule created by s 5(1)(a) or whether s 5(1A) operates to explicate or qualify s 5(1)(a). I consider that the better view is that, as a matter of substance, s 5(1A) forms an exception or a qualification to s 5(1)(a) so that, the burden of proof lies with the party seeking to fall within its operation. Its effect is to provide for an automatic extension of the limitation period if certain preconditions are established. In the terminology of Vines, it provides a justification or excuse for the bringing of the action which in the normal case would be out of time because, on the basis of additional or special facts, it equates the date of accrual of the cause of action with the time the plaintiff gains relevant awareness of the injury.
[38]At 140 per Dixon CJ.

This conclusion is, I think, made apparent by the legislative history of the relevant aspects of s 5 of the Act. Under the 1958 Act, s 5(1)(a) prohibited the bringing of actions founded in contract or tort after the expiration of six years from the date on which the cause of action accrued. It expressly excluded actions referred to in s 5(6) for which a shorter limitation period of three years applied, more specifically, that:

“No action for damages for negligence nuisance or breach of duty … where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, shall be brought after the expiration of three years after the cause of action accrued.” (Emphasis added.)

The Limitations of Actions (Personal Injury Claims) Act 1983, effectively replaced s 5(6) with s 5(1A) except that its terms then did not include the words “and the cause of action shall be taken to have accrued on”.[39] It is relevant to note the difference in the language as between the repealed s 5(6) – negative prescription – and its replacement, s 5(1A) – positive prescription. The final relevant amendments came about through the Limitations of Actions (Amendment) Act 2002 that substituted three years for six in s 5(1A), and inserted s 5(1AA) which, subject to s 5(1A), limits the bringing of an action for damages for personal injuries to three years from the date on which the action accrued.

[39]These words were inserted by the Limitations of Actions (Amendment) Act 1989.

It is apparent from these provisions, I think, that s 5(1AA), like the former s 5(6), forms an ingredient or element of the defence created by s 5(1)(a) in respect of the personal injury claims referred to in that provision. Thus, s 5(1)(a) and s 5(1AA) form a scheme whereby certain causes of action are barred after the expiration of the relevant period. On the other hand, section 5(1A) operates differently, creating a separate right to bring proceedings for late onset personal injuries until the expiration of the relevant period commencing on the date when the plaintiff acquired the prescribed knowledge. The provision operates, I think, independently of s 5(1)(a) in the relevant sense and as an exception to the prohibition contained in it.

Thus, it seems to me that the party that seek to invoke s 5(1A) is seeking to rely upon additional matters to establish that its cause of action is not statute barred. Consequently, consistently with the above principle, that party carries the burden of establishing that it falls within the provision. This conclusion is strengthened, I think, by the fact that, on its proper construction, s 5(1A) does not constitute or describe an element of the defence afforded by s 5(1)(a) nor, unlike the situation in Barrit v Baker, does it in terms or in substance define any of the terms in s 5(1)(a). Rather, s 5(1A) assumes the general operation of s 5(1)(a) and creates an exception to its effect in the circumstances it prescribes so as to deem the accrual of the cause of action, or the starting point of the limitation period, by reference to relevant knowledge of the injury and its source. This analysis is consistent, I think, with that undertaken in Banque Commerciale SA where, as has been mentioned, the decision was reached on two broad bases, first that the substantive effect of the proviso was to allow for the defeat of a defence that would otherwise be established and, secondly, that it was for the party alleging fraud to prove it, the alternative being in that case that the defendant would have had to prove absence of fraud.

That, properly construed, s 5(1A) operates as a qualification or exception is also supported by the extrinsic materials. As I have mentioned, the section was inserted in 1983. It seems apparent from the second reading speech that Parliament intended thereby to make distinct provision for disease or disorder cases – specifically, the Attorney-General said[40] it was a “recognition of and provision for the particular difficulties in disease and disorder cases concerning the possible expiration of the limitation period before the injured person knows he has a cause of action”.[41] To alleviate this problem, the provision would have the effect of postponing the limitation period in such cases. The Attorney-General said:[42]

“In personal injury claims, other than disease or disorder cases, the injured person may bring his action for damages within six years after the date of the accrual of the cause of action. Normally that would be the date of the injury. In disease cases, such as asbestosis and pneumoconiosis, the injured person may bring his action for damages within six years from the date that he knows he has the disease or disorder and that someone is responsible – that is, when he knows he has a cause of action. That knowledge may not come to the injured person until many years after the disease or disorder starts to develop.
….
Personal injury claim with respect to the contracting of a disease or disorder are treated differently from all other personal injury cases. The injured person in disease or disorder cases will no longer be dependent on the discretion of the court to extend the limitation period but will have a postponed limitation period as of right.” (Emphasis added.)

[40]Parliamentary Debates, Legislative Assembly, 14 December 1982, at 2766.

[41]Parliamentary Debates, Assembly, 14 December 1982, at 2766.

[42]Parliamentary Debates, Assembly, 14 December 1982, at 2766 [my emphasis].

The legislative history of the Act, and the relevant provisions, was traced by the High Court in Stingel v Clark[43] in which the majority[44] confirmed that s 5(1A) operates as a qualification to the otherwise prescribed general limitation period. Their Honours said[45]:

“Section 5(1A) follows, and qualifies, s 5(1). The reference in s 5(1A) to a cause of action being taken to have accrued on a certain date is plainly related to the reference in s 5(1) to a limitation period expiring six years form the date on which the cause of action accrued.”

As the majority explained[46] the general limitation period prescribed in s 5(1)(a) is “subject to certain qualifications”[47] which, in form, have varied since the introduction of the Act. They noted,[48] that the legislative precursor, in part, to s 5(1A) was s 5(6)[49] of the 1958 Act to which reference has been made and which was, in respect of personal injuries cases, an exception to the general six year limitation period, providing a three year limitation period. In combination with s 23A, introduced in 1973, the effect of the provisions was to impose, in respect of personal injuries cases, a shorter limitation period although also conferring on the court a discretionary period to extend time. Section 5(1A) was introduced specifically to address the problem of recognising the existence of a cause of action in respect of injuries that have a delayed onset and, as anticipated in the second reading speech, to provide for a postponed limitation period as of right in such cases – as put by their Honours in Stingel, “providing for an automatic extension in cases of injuries of delayed onset”.[50]

[43](2006) 80 ALJR 1339.

[44]Gleeson CJ, Callinan, Heydon and Crennan JJ.

[45]At 1348-1349.

[46]At 1342.

[47]At 1342.

[48]At 1342-1343.

[49]Repealed by the Limitations of Actions (Personal Injury Claims) Act 1983 which also introduced s5(1A).

[50]Stingel at 1345, per Gleeson CJ, Callinan, Heydon and Crennan JJ.

The dissenting judgments[51] in Stingel v Clark similarly support the view that s 5(1A) is a qualification of, or exception to, s 5(1)(a). Thus, Gummow J said:[52]

“What both ss 5(1A) and 23A(1) share … is the same starting point. From this, each provision each makes its own departure to qualify what otherwise is the general position established by that starting point. This point is located in para (a) of s 5(1) which, as indicated, fixes a six year limitation period for “actions founded in tort”. Both ss 5(1A) and 23A(1) qualify that general provision by using an expression which is narrower in its text and scope …”

Kirby J said:[53]
“Although s 5(1A) is beneficial, its context is important for ascertaining is meaning. Unlike s 23A of the Act, s 5(1A) does not enliven a discretion to extend time …. It has a direct application, providing an entitlement to the extension if the preconditions are established. In this respect, it derogates … from the ordinary entitlement of persons … to be free from the expense, worry and dislocation of claims that ordinarily would have long since been statute barred.”

[51]Gummow and Kirby JJ dissented along the broad lines that the action in that case was not an “action for damages for negligence, nuisance or breach of duty”.

[52]At 1350.

[53]At 1362, my emphasis.

Hence, as I have said, the appellant in this case carried the burden of proving that he did not have the prescribed knowledge prior to 15 November 1990 and his Honour’s ruling to that effect contained no relevant error.

Ground 5: errors in finding knowledge acquired before relevant date and in relying on appellant’s self-medication

Under cover of this ground the appellant effectively attacked his Honour’s finding that the appellant had failed to establish that he first knew that he suffered from the mental injury after 15 November 1990.[54] It was said that this finding was not open on the evidence and that his Honour’s conclusion that the appellant knew in 1970-1971 that he was suffering from the mental illness because he was self-medicating on antidepressants was fatally flawed and vitiated his decision in that regard.
[54]See fn 3.

As I have explained, the onus of proof on this issue was on the appellant. It was his case that it was not until he saw Dr Lambeth in 1996 that he first became aware that he was suffering from PTSD. But his Honour was not bound to accept this claim, particularly since he considered the appellant to be an unreliable, if not an untrustworthy, witness. In coming to the impugned conclusion, his Honour had regard to a number of circumstances that bore on the status of the appellant’s knowledge about his mental condition. The primary amongst them were the following. First, the judge had regard to what he considered must have been the appellant’s appreciation that he had undergone a substantial, if not dramatic, change in his mental condition after the collision when compared to his position in that regard before the accident, in a context where the problem subsided when he was posted to shore only to reappear when he served on the Derwent as explained earlier but then settling down not long after he left that ship. His Honour noted that there was no evidence that the appellant had any of the PTSD symptoms before the collision, yet he said that on the night in question he was in a state of shock, and for some time following this he experienced anger at the Navy, could not sleep properly, suffered nightmares of the kind described, sweated and screamed out at night. He also said that his personality changed into 1965, that he started to consume excessive alcohol and was involved in misconduct offences in 1964. On the other hand, as was pointed out by his Honour, on his own evidence, the appellant knew that upon being posted to shore the symptoms settled down after the collision, but re-emerged when he went to sea on the Derwent, declining materially not long after he left the ship.

Secondly, his Honour had regard to the appellant’s knowledge and experience of medical matters, which the judge said equipped him “with better understanding”[55] of the symptoms and whether what he suffered was an ‘injury or impairment to his mental condition’ “. In that context his Honour noted that the appellant “admitted that he had treated RAN personnel for depression and mental type problems”. Next, his Honour considered that the appellant appreciated the difference between physical and mental injuries. Relevantly, for present purposes, the judge thought it significant that the appellant resorted to antidepressants for relief from the mental problems he experienced on the Derwent. The judge also observed that the problems “seemed to have been well managed” through the medication. His Honour concluded “with some hesitation”, as I have said, that the appellant did not know during 1964-1965 that he was suffering from a “compensable psychiatric injury”. On the other hand, he said, “when the disturbing symptoms occurred in 1970 when the [appellant] was on HMAS Derwent, [he] did have knowledge that he was suffering from a mental injury. In my opinion the [appellant] has failed to establish that he first knew that he was suffering from the mental injury after [15] November 1990.”
[55]Presumably his Honour meant better understanding than that possessed by a lay person.

A primary criticism of the impugned conclusion related to his Honour’s use of the evidence that the appellant took antidepressants whilst on the Derwent. In that regard it was first said that it was not open to his Honour to draw the inference that the appellant took the medication to cope with depression. It was submitted that there was no evidence that he suffered from depression or that he claimed that he did. It seems to me, however, that his Honour did not say that he considered that the appellant was suffering from depression or that he took the medication to relieve that problem. A fair reading of his Honour’s reasons makes it apparent, I think, that he considered that the medication was taken by the appellant in the belief that it would assist him to control the abovementioned mental problems.[56]
[56]I mention for completeness that it seems to be that, in any event, it would not have been impermissible for his Honour to draw the impugned inference given that, on the face of things, a person taking antidepressants does so in order to relieve depression.

It was next said that, in any event, his Honour erred because the only evidence of the appellant’s self-medication was his statement to that effect to Dr Giarratano, but this was confined, so it was argued, to one episode and neither the appellant nor Dr Giarratano was cross-examined on the matter.[57] Moreover, it was said, it does not follow that because the appellant took antidepressants, he believed he was doing so to control a psychiatric disorder. The only evidence as to the proper purpose of such medication, it was pointed out, was that of Dr Lambeth, who said that antidepressants had the potential to relieve depression and anxiety symptoms and that neither condition is a compensable psychiatric disorder.
[57]In the circumstances, it is understandable why, from a forensic point of view, the respondent’s counsel did not cross-examine on that issue. It is unlikely that the respondent’s case could have been advanced through cross-examination.

It is true that the only evidence of the appellant’s self-medication was his statement to that effect to Dr Giarratano. Nevertheless, it amounted to evidence on which his Honour was entitled to act notwithstanding that there was no cross-examination on it. The statement, read as a whole, makes its plain, I think, that the appellant was recounting to Dr Giarratano his relevant experiences during the whole of the voyage on the Derwent and not just telling her a number of isolated instances that occurred during that period. Thus, in relation to his use of the antidepressants, he spoke of taking them to control his nightmares and claustrophobia during that voyage so that it is clear enough that he was saying that he took the medication with some regularity during that period. And this matter was not sought to be qualified in any way during his examination-in-chief.

I also consider that there is no substance in the appellant’s point that antidepressants are not used to treat compensable psychiatric illnesses. It seems to me that, for present purposes, it is irrelevant whether they can or cannot be used to that end. What is relevant is that, in the circumstances, such a course of action is indicative of the appellant’s appreciation that he had mental difficulties amounting to mental injury. It may be that, taken by itself, such action is not reflective of such knowledge but, if taken together with other circumstances, it may well demonstrate it. Consequently, I think it was relevant and appropriate for his Honour to take into account, in coming to the impugned conclusion, that the appellant “self-medicated in the way described”. It is important to note that, in any event, the appellant’s resort to antidepressants was only one of the matters that his Honour took into account in concluding that he had not established that he did not have relevant knowledge until after 15 November 1990.

It was also argued that his Honour overstated the extent of the appellant’s experience regarding depression and mental problems and, in particular, it was said that the judge erred in saying that the appellant treated RAN personnel for these problems. It was pointed out that the appellant’s evidence on that issue was limited to his statement that he came across sailors and officers who were emotionally affected. But I think that all that his Honour meant in the impugned passage in his reasons was that, in his capacity as an experienced nurse, the appellant saw Navy personnel who had various emotional and other mental problems and must have been aware of the medical treatment that was provided to them, or at least some of them, by Navy doctors under whom the appellant served. It seems to me that there was no relevant error in this part of his Honour’s reasons as alleged.

I mention for completeness that it was also argued, as I understand it, that in coming to the impugned conclusion his Honour took into account impermissibly that the appellant knew that he suffered nightmares during the periods in question. It was said that knowledge of nightmares could not give rise to an inference that the appellant knew that he had a mental injury. Counsel pointed out that nightmares are but one of many symptoms that may establish PTSD but, of themselves, they do not amount to a compensable psychiatric disorder. It seems to me that this is a curious submission because, as I understand the appellant’s case, he claims that one of the overt manifestations or symptoms of his PTSD was the frequent, if not regular, nightmares that he suffered. Be that as it may, it is plain enough that his Honour’s conclusion that the appellant suffered from a mental injury whilst on HMAS Derwent was not based solely on the appellant’s knowledge that he suffered from nightmares. There were other matters which his Honour took into account on this issue, as I have mentioned.

In the circumstances, I consider it was open to his Honour to conclude on the evidence that the appellant had not established that he first knew of his mental injury until after 15 November 1990. In my view, ground 5 should fail.

Ground 4: error in finding appellant admitted symptoms caused by collision

Under cover of this ground, the appellant contended that, in coming to the conclusion that the appellant knew that his symptoms were caused by the collision, his Honour erred in finding that the appellant admitted that his claimed symptoms were caused by the collision. More particularly, it was said that this conclusion was contrary to the appellant’s evidence on the matter. It was submitted that the appellant made it plain in his evidence that during his time in the Navy he did not associate his nightmares with the collision and thought that his personality changes arose from being a sailor and that he did not associate excessive drinking with the collision but indulged in it in order to help him sleep. It was further pointed out that the uncontradicted and unchallenged evidence of the appellant’s wife and other lay witnesses supported his evidence that, prior to 1996, he neither recognised that he had a mental problem nor connected his symptoms with the collision. It was argued that this error on his Honour’s part meant that the ultimate finding that the appellant knew prior to 15 November 1990 that he suffered from a mental injury arising from the collision was made on a false premise and was, therefore, vitiated.

I consider that this submission should be rejected. It is relevant to look first at what his Honour actually said in his reasons in relation to this matter. The judge first noted that the appellant agreed that the subject matter of the nightmares was always the same and that the symptoms had first occurred after the collision. His Honour then referred in his reasons to the question that he put to the appellant in the course of his evidence, namely, whether he “accepted that the catastrophe must have been the cause of the symptoms” and the appellant’s reply: “I would have to be blasé to say no, your Honour, but the nightmares had to come from the disaster”. Immediately thereafter the judge said in his reasons: “He agreed, comparing his situation prior to the collision and after the collision, that the commonsense told him that the cause of his problems was the traumatic event.” A little later in his reasons the judge said that the appellant “admitted in his evidence that his symptoms were caused by the collision”.

It is plain enough, I think, that all his Honour was saying in the impugned passage was that what the appellant admitted was the fact that his symptoms were caused by the collision. That is unsurprising because, on his evidence, there would have been only one cause for those symptoms. The finding that the appellant knew that that was the case was, as his Honour said, based on the whole of the evidence. More particularly, the judge said that, given the evidence, “the cause and effect exercise leads to that conclusion and is obvious and beyond doubt.” And in my view, it was plainly open to his Honour to make such a finding. But even if I am wrong in my view and the judge said that the appellant admitted knowing of the connection between his symptoms and the collision, and assuming that this was erroneous, such error did not vitiate his findings as to the appellant’s relevant knowledge. There was a considerable body of evidence that entitled his Honour to come to that conclusion, including the inherent improbability that the appellant would not have connected his symptoms, particularly his nightmares, claustrophobia and fear of the Derwent being involved in an accident, with the collision of 1964.

Grounds 14, 18, 19 and 24: misuse of advantage as trial judge

It was contended, under cover of these grounds, that in rejecting the appellant’s evidence as to the history and extent of his symptoms his Honour misused his advantage as a trial judge and acted “on a basis which was inconsistent with clearly established facts”. Thus, it was said, the Court should set aside his Honour’s adverse findings concerning the appellant’s credibility. The principal complaints in this regard were these. First, it was said, his Honour made adverse findings against the appellant’s credit in large part based on his observations that the appellant became “flustered” in the witness box in response to certain questions and his behaviour concerning the giving of evidence by Professor Bryant to which I will refer more fully below. It is difficult to understand the basis of this complaint because the demeanour of a witness in the witness box is nearly always relevant to the assessment of his or her credibility. Be that as it may, his Honour observed in his reasons that the appellant became flustered in his evidence on two occasions and, in my view, the judge was entitled to make that observation and treat it as a matter of relevance to the assessment of the appellant’s credibility. One such occasion was when the appellant was asked by the judge whether he was wearing a life vest when he fell into the water when taking part in the rescue operations. His Honour said that, in responding to the question in the negative, he became “flustered”. Given the evidence that in the prevailing circumstances navy personnel were trained and required to wear life vests and that these were available in the motor cutters, it is unsurprising that his Honour said that he was “suspicious” about the appellant’s evidence on this issue, although he was prepared to accept it. In any event, the judge gave the appellant the benefit of doubt on this matter.

The second occasion his Honour noted that the appellant became flustered was when a report was produced to him that “caught him by surprise”, as his Honour said. The report contradicted the appellant’s initial denial that he sought to transfer to “the electric branch” (in order to have more “sea time”). Again, it is difficult to see that there is a proper basis for this complaint. In his reasons, his Honour noted that, when this report was produced during the appellant’s cross-examination, “it was apparent [from] the reaction of his legal representatives that they were unaware of the report’s existence”. It was said that it was impermissible for his Honour to take into account this “reaction” of the lawyers in assessing the appellant’s credibility. Such a course, it was said, was contrary to the dictates of procedural fairness. In my view, however, his Honour’s impugned observation was no more than that and, properly viewed, did not amount to his Honour saying, as the appellant would have it, that he would take that into account against the appellant on the question of credit. A fair reading of his Honour’s reasons makes it apparent that his reference to the reaction of the appellant’s legal advisors to the production of the document was no more than a pertinent comment in a context where the appellant was “caught out”. This could not be said to amount to his Honour abusing his judicial position as the appellant contended.

Similarly, his Honour’s finding that the appellant’s evidence that his records showed that in June 1964 that he passed his ET1 course was “an incorrect statement” was well justified and did not amount to an abuse of the judge’s position as the appellant argued. It was apparent that, at the time in question, the appellant had not passed the ET1 course. The same applies, I think, to his Honour’s finding that the appellant was “anxious to paint a very frightening picture of the circumstances of the collision … “. The appellant’s complaint in relation to that finding involves in reality an attempt to re-argue the basis of the finding which, I think, was plainly open to his Honour on the evidence.

The appellant also contended that his Honour’s finding that the appellant “contrived to set up Professor Bryant so that an attack could be made on his evidence and his overall credit” was not only wrong, but showed that his Honour thereby abused his position as trial judge. In my view, however, this claim should also be rejected. The impugned finding was made in the following context. Professor Bryant, a psychologist, who had examined the appellant and who was called for the respondent, had produced a report that was tendered in evidence in which he concluded on the basis of the MMP1-2 test that he said he had administered to the appellant, that he was a malingerer and did not suffer PTSD. Dr’s Giarratano and Glaser, who produced two papers seeking to undermine Professor Bryant’s conclusion, were cross-examined by the respondent’s counsel in reliance on the Bryant report. The appellant was in court during this evidence and was also present when Professor Bryant was cross-examined. He maintained during cross-examination that he had received the tests from the appellant and marked them and, essentially on that basis, came to the above conclusion about his alleged mental illness. Professor Bryant had explained that when he interviewed the appellant he gave him the questionnaire that was part of the MMP1-2 test for completion and return. It seemed, however, that the questionnaire was never returned to Professor Bryant so that his report could not have been based upon the results of such a test as he claimed. This was not appreciated by Professor Bryant when he wrote his report or when he gave his evidence. It seems that the critical questionnaire was at the appellant’s home and, over the luncheon adjournment, he procured the production of a copy of it. When it was shown to Professor Bryant, unsurprisingly he was taken aback and, by reason of that error on his part, his Honour said that he would not rely on the report, and did not do so.[58] After Professor Bryant had given evidence, the appellant was recalled to prove the copy questionnaire. He said essentially that he forgot about its existence and only remembered it when he heard Professor Bryant give his evidence. His Honour, however, disbelieved the appellant and considered that “he contrived to set up the Professor so that an attack could be made on the Professor’s evidence and his overall credibility.
[58]It was not suggested by the appellant that Professor Bryant thereby sought to mislead the court. It was accepted that he simply made a mistake as to whether the questionnaire had been returned to him.

Importantly, as I have said, his Honour noted that the doctors who gave evidence for the appellant to the effect that he suffered PTSD continuously after the collision did so on the basis of their acceptance of his description of the symptoms and the circumstances surrounding them. But the judge found, as has been mentioned, that the appellant demonstrated a lack of credibility and was an unreliable historian. The judge said that “there are instances in the [appellant’s] evidence which show that what [he] told the Court was different in some respects to what he told the experts”. In short, his Honour said that he did not “accept that what he told them was accurate”.

In that context it should also be borne in mind that his Honour had the advantage of seeing the appellant give his evidence and be cross-examined. Relevantly, the appellant did not give a consistent account of his symptoms. He first claimed, for example, that he suffered constant nightmares, once or twice a week since the incident, of drowning or something scraping as if along his ship and that he commenced to drink heavily in order to sleep and avoid them. When cross-examined about the events he said, as he told Dr Glaser, that he did not have nightmares all the time, but they came and went. The appellant told Dr Glaser that the nightmares started to go after he was posted to shore bases following the collision but that “all hell broke loose” when he was posted back to sea on HMAS Derwent. His Honour’s conclusion that the appellant’s claims about the nightmares were grossly exaggerated is clearly supported by the evidence. For example, the appellant told Dr Bell, a medical expert called by the respondent, that his nightmares gradually resolved. Moreover, as his Honour observed, no mention is made of the appellant suffering nightmares in Dr Giarratano’s statement of the history given by the appellant, and her later reference to that, said his Honour, seems to refer to his experiences of nightmares in 1999 by which time, as his Honour found, a number of events supervened that could have explained that symptom.

The judge also found that the appellant’s claim that he was drinking heavily such as to drink himself into oblivion on many nights was grossly exaggerated and not borne out by the evidence, including that of his former wife, the notes made in his medical file, his naval history and the fact of his promotion. His Honour accepted the evidence of the appellant’s Commanding Officer that drinking to excess was not tolerated on board the ship and if he was affected by long term drinking it would have been noticed and dealt with. The evidence showed, his Honour said, that the appellant was conscientious and performed his duties without blemish or criticism. As I have noted, the evidence of his former wife on this issue was, in essence, that although they drank heavily when they “partied”, that did not happen every weekend and that during the week the appellant’s alcohol consumption was minimal. The learned judge also noted that in 1988 the appellant realised that his drinking was “killing him” and he gave it up. His Honour considered that this was a significant event given the case that was put on his behalf was that he was self-medicating to blot out the memories and nightmares.

The learned judge also noted various aspects of the experts’ evidence were unsatisfactory and tended to detract from their probity. Thus, the judge said that all the experts, save for Dr Lambeth, only saw the appellant for approximately two hours. Importantly, his Honour noted that none of the experts specifically dealt with the appellant’s symptoms and their effects on him during the crucial period covering the first two years after the collision. That this period was important for the purpose of determining if the appellant suffered from PTSD seems to have been common ground below. In any event, given that the appellant had to demonstrate that there was a causal nexus between the PTSD diagnosed in 1996 and the collision that occurred in 1964, it was important, if not critical, to consider the appellant’s relevant behaviour and condition during the first two years or so after the collision. Next, as I have explained, his Honour said that he did not “derive [material] assistance from evidence … of the [appellant’s] difficulties and depression after approximately 1990 given that those matters could be explained on any number of [other] grounds”. Moreover, the trial judge noted that the experts called on behalf of the appellant either paid little or no attention to criteria F in DSM-IV which his Honour considered to be of considerable relevance in deciding whether a plaintiff suffered PTSD. And, as his Honour observed, he saw most of the expert witnesses cross-examined and was thus in a position to form a view as to their reliability. Furthermore, as I have noted, the judge had available to him the appellant’s service and other records, many of which were not given to the experts.

As to the claim that his Honour erred in failing to have sufficient regard to the evidence of lay witnesses, that material was in narrow compass as I have mentioned and did not always support the appellant’s case. Maxine Joyce, for example, married the appellant five years before he left the Navy and for six months of that time he was away at sea. She said, as I have noted, that they both “partied” a lot, although not every weekend, and that it was only during those times that he drank a lot of alcohol. And the other witnesses did not have the opportunity to observe him often or over a sustained period of time.

In the circumstances, I consider that theses grounds should also fail.

Conclusion

For the above reasons, I consider that his Honour did not err in concluding that the appellant’s cause of action is statute barred. Consequently, I would dismiss the appeal.

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Chernov JA.

The test for the purposes of s 5(1A)

Like his Honour, I consider that, where a plaintiff is seeking damages for mental injury, time does not begin to run for the purposes of s 5(1A) of the Limitation of Actions Act1958 until the plaintiff knows that his or her mental condition is a mental illness which would be recognised by the medical profession as such. That does not mean that the plaintiff needs to know the name of the mental illness, or even that it has been recognised by the medical profession as a mental illness. But it

does require that the plaintiff know, in the sense of believe,[64] that his or her mental condition is of such a nature that the medical profession would recognise it as a mental illness.

[64]Paget v JLT Workers Compensation Services Pty Ltd and Anor (2005) 12 VR 692 at [30], per Callaway JA; Papercorp Pty Ltd v Nicolau [2006] VSCA 143 at [41], per Ashley JA; and see Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 at 688 [45], per Handley JA.

As Byrne J pointed out it in Falcon v McCann,[65] time cannot begin to run under s 5(1A) until a plaintiff knows that he or she suffers from the disease or disorder which is the subject of the claim. Axiomatically, one cannot know that one has a disease or disorder until one knows at least the nature of one’s affliction. And, as Handley JA explained in Smith,[66] in the case of mental injury the only way in which most human beings can discern the difference between psychological conditions falling short of mental illness and psychological conditions that amount to mental illness is by reference to what the medical profession recognises as mental illness. As Heydon JA said in Cranbrook School v Stanley, this “is a field well outside ordinary comprehension”.[67]
[65][1998] VSC 83 at [13].
[66]The Commonwealth v Smith [2005] NSWCA 478 at [16].
[67][2002] NSWCA 290 at [68].

There is a parallel with insidious physical diseases. A production worker, for example, may know that he suffers hay-fever-like symptoms which he believes to be caused by the paints with which he works, and he may self-medicate with anti-histamines without thinking of himself as having a physical injury. It is only when he is advised that his symptoms are emblematic of pulmonary fibrosis caused by iso-cyanates in the paints that he knows the nature of the injury which the paints have caused him.

Likewise with psychiatric disorders, everyday experience is that some people react adversely to psychological pressures to which they may be subject in the work-place. They may suffer head-aches or become anxious or despondent or irritable or melancholy, or they may be unable to sleep or they may wake thinking about their work, and, from time to time, some may have nightmares about particular aspects of their work. The bulk of persons who suffer in that fashion would probably acknowledge that their symptoms are indicative of a change in their mental condition. Yet it is unlikely that they would consider that they have suffered a mental injury. Human nature being what it is, they are more likely to look upon their symptoms as the kind of thing which it is normal for human beings to exhibit from time to time and to take the view that they should put up with the problem for as long as it lasts while they get on with their work. It is only when and if they are advised that their symptoms are emblematic of a condition that the medical profession recognises as a psychiatric injury that they are likely to know, in the sense of believe, that they have sustained a mental injury.

Failure to apply the correct test

Unlike Chernov JA, I do not accept that the judge in this case applied the test of whether the plaintiff knew, in the sense of believed, that his symptoms were of such a nature that the medical profession would recognise them as a mental illness as such. In my view, a fair reading of the judge’s reasons is that his Honour considered that time began to run for the purposes of s 5(1A) once the plaintiff knew that he had symptoms which were affecting his mental condition, even though the plaintiff did not know that he was suffering from a recognised psychiatric injury, because in point of fact those symptoms meant that he was suffering from such an injury. With respect, I do not see how one can attribute any other meaning to the judge’s statement that:

“It is sufficient if he has the symptoms which he knows [are] affecting his mental condition and is suffering from a recognised psychiatric injury.”

Furthermore, if I may say so with respect, it seems to me that the judge adopted that test advisedly, in effect choosing to accept the Commonwealth’s contention at trial that, in contradistinction to the position which obtains in New South Wales, the position under the Victorian legislation is that :

“…the knowledge must be more than a knowledge of distress or normal feelings of anxiety or injury which are non-compensable but [does] not have to be as high as the knowledge of psychiatric injury.”

Admittedly, the judge also said that the symptoms “led [the plaintiff] to a state of knowledge that he was suffering from some mental injury” and that “the plaintiff did have knowledge that he was suffering from a mental injury” and that “he first knew that he had suffered from a mental injury”. But as is apparent from other passages of the judge’s reasons, when his Honour spoke of “knowledge of mental injury” he had in mind that it was sufficient to amount to knowledge of mental injury for the plaintiff to have knowledge of “mental-type problems” or “symptoms which he knows [are] affecting his mental condition” or “mental–type injuries”. Thus as his Honour put it:

“…The evidence established that the plaintiff had been trained in matters medical, he had an understanding of medical matters, and he admitted that he had treated RAN personnel for depression and mental-type problems. He appreciated the differences between physical and mental injuries. He knew that he had undergone a substantial mental change post-collision from his pre-collision situation. In my opinion the only thing he did not know was that he was suffering from a mental injury known as PTSD. On the other hand, the symptoms and the dramatic change in his mental well-being which continued for about 12 months and resurfaced in 1991 led him to a state of knowledge that he was suffering from some mental injury. In my opinion it is not necessary to know the actual mental injury by name. It is sufficient if he has the symptoms which he knows [are] affecting his mental condition and is suffering from a recognised psychiatric injury. The symptoms were obvious, clearly caused by the collision and the aftermath and lasted for a period in excess of six months. The symptoms affected his metal being. But I do, with some hesitation, find that he did not know he was suffering during 1964-5 with a compensable psychiatric injury. He knew that he had disturbing symptoms during this period but they settled down and the plaintiff put the disturbing events behind him. On the other hand when the disturbing symptoms recurred in 1970 when the plaintiff was on HMAS Derwent, the plaintiff did have knowledge that he was suffering from a mental injury. In my opinion the plaintiff has failed to establish that he first knew he was suffering from the mental injury after 1[5] November 1990.

The judge then referred to a statement by the plaintiff that while serving on the Derwent he had access to antidepressants and took Sinequan to help control this without the doctor being aware, and continued:
“In my opinion, that statement reveals that the plaintiff did know that he was suffering from mental-type injuries and he prescribed himself antidepressants to treat his problems. ‘Antidepressants’ are prescribed for mental injury. He prescribed them himself. This was to treat a mental condition.”[68]

[68]My emphasis.

In addition to the judge’s choice of words, there are a number of forensic considerations which suggest that his Honour could not logically have reached the conclusion to which he came unless he were of the view that the relevant conception of “mental injury” was one which included phenomena falling short of mental injury which were variously described as “mental-type problems” or “symptoms which he knows [are] affecting his mental condition” or “mental–type injuries”.

To start with, it was no part of the Commonwealth’s case at trial that the plaintiff believed at any time before 15 November 1990 that he was suffering from a condition which the medical profession would recognise as a psychiatric injury. To the contrary, the Commonwealth contended that the plaintiff was a malingerer who had grossly exaggerated his condition and that such symptoms as he had suffered were simply a normal reaction to the event which he had been through. Thus as senior counsel for the Commonwealth put the Commonwealth’s position in final address:

“…the conclusion that should be drawn that he suffered from this acute phase of fear following the collision which ultimately resolved over a couple of years and then he felt normal discomfort when put back in the same situation.”

In the second place, the Commonwealth never put to the plaintiff or indeed to any witness for the plaintiff, and it was not suggested by any witness for the Commonwealth, that the plaintiff believed or was likely to have believed before November 1990 that he had suffered a psychiatric illness. To the contrary, senior counsel for the Commonwealth cross-examined the plaintiff to the effect that he did not believe he had any “mental problem” before 1996.

In the third place, counsel for the Commonwealth argued before the judge that, even if it were found that the plaintiff had suffered from PTSD, s 5(1A) would not avail the plaintiff because he knew before 15 November 1990 that he had “a problem which was affecting him mentally” and that:

“…he does not have to think about it the way a court analyses it or the way a psychiatrist might think about it. It is just he, layman Mr Cavenett, with his knowledge and training understanding that he is suffering from these differences, and that they are a mental problem.”

Fourthly, and perhaps most importantly, the judge’s conclusion rested substantially on the proposition that the plaintiff realised he had “mental–type injuries” because while serving on HMAS Derwent he self-medicated on Sinequan to help control his symptoms and because he knew that Sinequan was an anti-depressant. That proposition would not make sense unless his Honour conceived of “mental-type injuries” as including mental conditions less severe than those which the medical profession would recognise as psychiatric illnesses as such. The undisputed evidence was that anti-depressants in general and Sinequan in particular may be prescribed for mental ailments falling short of conditions which the medical profession would recognise as mental illnesses as such - in this case for “mild depression” of the kind that was diagnosed by Navy doctors as having been brought on by gastric reflux. There was little if any evidence that Sinequan was prescribed for major depression or dysphoria of the kind which the medical profession would recognise as mental illnesses as such. And there was no suggestion that the plaintiff knew or believed that it was so prescribed.[69]
[69] The evidence was that after the plaintiff had been diagnosed as suffering from PTSD, with co-morbid major depression he was prescribed Luvox.

It follows in my view that the judge fell into error by applying the wrong test for the purposes of s 5(1A).

Application of the correct test

I note Chernov JA’s observation that, even if the judge did apply an incorrect test, it would have been open to the judge on the basis of the correct test to come to the view that the plaintiff had not discharged the burden of establishing that he did not know that he had suffered a mental disease before 15 November 1990. With respect that may be so. It would depend on the view which one takes of critical parts of the evidence. But since I consider that the judge applied the wrong test, I see it as being of little consequence for present purposes that his Honour might have come to the same conclusion by application of another test. The task is to determine afresh on the basis of the evidence below whether this court is satisfied that the plaintiff did not know.

Thus applying the correct test, I think it more likely than not that the plaintiff did not know before 15 November 1990 that he was suffering from a condition that the medical profession would recognise as a mental injury.

Notwithstanding the judge’s observation that the plaintiff “had been trained in matters medical”, there was no evidence that the plaintiff had been trained in the recognition or treatment of mental illness. He was a “sick bay attendant” and his uncontradicted evidence was that his medical training was limited to “a very basic paramedical level” “like sewing wounds and dispensing tablets [as prescribed by doctors]”. He denied that it was equivalent to being a nurse.

As the uncontradicted evidence also made clear, even doctors serving in the Defence Force were not properly equipped to recognise mental distress. Dr Lambeth, who was a consultant psychiatrist and a Staff Officer Grade 1 (with the rank of Wing Commander) in the Directorate of Mental Health of the Australian Defence Force, stated in his evidence that:

“… Even now in the [D]efence [F]orce we are having a terrible time getting our doctors to recognise the importance of mental distress. For example, there is a course that [I] run for doctors on service medicine. I think it lasts something like six weeks. We have been given two days to present mental disorders. Yet, the evidence in the general population is that if anyone goes to a GP… for whatever reason we go … that 50 per cent of us require some sort of psychological treatment. Yet, we cannot get the [D]efence [F]orce and even the doctors in the [D]efence [F]orce to give us more than two days out of six weeks to teach people about military medicine.”

Further, and contrary to the judge’s statement that the plaintiff “admitted that he had treated RAN personnel for depression and mental-type problems”, the highest the evidence on that subject went was this exchange between the judge and the plaintiff in the course of cross-examination:

“HIS HONOUR: While you were in the Navy you always have access to medical practitioners? --- Yes.
They are your workmates if I can put it that way? --- Yes.
You of course were never charged for any medical treatment that you received or any consultation, were you? --- No, your Honour.
I take it from time to time you came across sailors or indeed officers who were emotionally affected. Did you ever come across - - - ? --- I came across a few.
It wasn’t difficult to be referred to a psychiatrist within the Navy, I take it? --- No, your Honour.”

Defence counsel did not suggest to the plaintiff or put in final address that coming across a few sailors and officers “who were emotionally affected” somehow implied that the plaintiff was responsible for the diagnosis or treatment of personnel suffering from mental illness or that he had any capacity to undertake that sort of task.

Just as importantly, there was clear evidence that the service culture was “to put up and shut up” and to get on with one’s job and not talk about problems, and that there tended to be a “sense of self” among military personnel which resulted in the repression of symptoms which might be construed as signs of weakness.

Consistently with that evidence, the plaintiff testified that on every occasion that he re-enlisted during his 20 years service in the Royal Australian Navy he was medically examined and, as part of that process, he was asked whether he was suffering from any mental difficulties. He said that on each such occasion he had replied that he was not and, as he explained in answers to questions put to him in cross-examination, he did that for the reason that he did not believe that he was suffering from any mental difficulties. Thus:

“COUNSEL: Mr Cavenett, on each occasion when you re-engaged in the Navy you were medically examined, weren’t you?---Yes.
That was by a doctor?---Yes.
He would fill in ticks on a form, is that right?---Yes.
You are aware, aren’t you, that part of that consultation involved him in asking you about your mental health?---Yes.
There were some boxes devoted to how you were getting along mentally?---Yes.
You know, don’t you, from reading these documents that on every occasion when you were medically examined for re-engagement the boxes are ticked that you are normal mentally?---Yes.
If, as you say, you were suffering so badly from these nightmares, you couldn’t control your behaviour, you must have understood that that was a problem that was affecting you mentally? ---No.
No?---No.
What did you think the recurrent nightmares were due to?---Just a thing that I had witnessed and things bringing it back up again.
But you have said the witnessing of this was doing more than just recurrent nightmares, it was causing a radical change in your personality. Correct?---No.
HIS HONOUR: Well, a change in your personality. Not radical, but it changed, didn’t it?---I couldn’t see a change in my personality. The only change I could see was depression and getting very anxious and that.
I thought you told me yesterday something about you felt you were antisocial and becoming withdrawn at some point in the last 30 years?---Yes, but I though that was because of being a sailor. I honestly thought everything stemmed from being a sailor rather than a psychological problem and the way I was working in the Navy and that.”

The plaintiff was also medically examined at the time of his discharge and asked to give details for Department of Veterans Affairs purposes of any injuries or conditions which he had suffered during his period of service. The evidence showed that he knew that the report was for his benefit (in the sense that if any condition he had contracted in the service were to worsen, the report would assist him to qualify for compensation or Veteran’s Affairs benefits, and that he was encouraged to put down anything which might prove to be a problem). Consequently, he reported a very substantial number of physical ailments and conditions. Yet he said nothing about the symptoms which he had been suffering during the previous 12 months while serving on HMAS Derwent. If indeed he had known that he had suffered from a mental disorder, less than a year before, it is surely most unlikely that he would not have made some reference to it in the report.

Finally, the probability that the plaintiff did not realise that his symptoms were something which the medical profession would recognise as a mental injury was backed up by a volume of epidemiological evidence that most people who suffer from PTSD do not know that they are suffering from mental injury. As Dr Giarratano put it in evidence in chief:

“Well, most of the time people don’t really know what they have unless they are told, but at this particular time [scil. prior to the plaintiff’s discharge in early 1980] he would have had no idea and neither would his doctors because the diagnosis wasn’t even coined then, and often they don’t seek help. They try to just get on with it, they try to overwork, they try to drink, as I said before.”

Similarly, Dr Lambeth said in his report that:

“Patients with Post Traumatic Stress Disorder are quite often surprised to learn that their illness is a serious psychiatric illness, and not merely a choice made by the patient.
Denial and avoidance are extremely common, avoidance, in fact, is the major factor in Criterion ‘C’ for Post Traumatic Stress Disorder. Naturally, once a horrific event has been experienced, and then re-experienced, as happens in Post Traumatic Stress Disorder, the patient will try to avoid anything that reminds him or her of the event, try to avoid talking about the event, and, in fact, may use a great deal of denial with respect to their own symptomatology. It is in a way an attempt at self-protection and avoidance behaviour may even be seen in the use of alcohol or other drugs, which is commonly see with Post Traumatic Stress Disorder.
…
Many patients with Post Traumatic Stress Disorder have developed the disorder in a situation in which they feel or felt that they should have responded better. They resort to self-medication in order to relieve unpleasant symptoms, and with the use of denial do not want to admit that they might be suffering from an illness that requires medical treatment.”

Admittedly, that evidence did not go undisputed. Dr Bell and Dr White who were called by the Commonwealth resisted the idea. Dr Bell’s thesis was that the only long term PTSD sufferers that were genuine were those who had been inmates of World War II concentration camps and Dr White was loath to accept that PTSD lasted longer than a few months. But, on the evidence, their views of the disease were against the weight of medical opinion and they provided very little reason for preferring their views to that of mainstream medicine.

Accepting as I do that the onus was on the plaintiff to establish that he did not believe before 15 November 1990 that his symptoms constituted or evidenced a condition which the medical profession would recognise as a mental illness as such, in my view the plaintiff discharged that onus.

Conclusion and orders

In the result I would allow the appeal and set aside the judgment below. In lieu thereof, I would give judgment for the plaintiff in the sum of $20,000 with interest and costs.

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[2007] VSCA 88

10 May 2007