Commonwealth v Nelson

[2001] NSWCA 443

CITATION:	Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443
FILE NUMBER(S):	CA 41062/00
HEARING DATE(S):	16 November 2001
JUDGMENT DATE:	30 November 2001
PARTIES :	Commonwealth of Australia v William Richard Nelson
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Rolfe AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	8272/98; 7684/99
LOWER COURT JUDICIAL OFFICER :	Robison DCJ

COUNSEL:	Appellant - C R R Hoeben SC Respondent - J A Loxton
SOLICITORS:	Appellant - Australian Government Solicitor Respondent - Low Doherty & Stratford Blacktown
CATCHWORDS:	LIMITATION OF ACTIONS - postponement of bar - appeal against grant of extension of time under s 60G Limitation Act 1969 - cause of action to recover damages for post traumatic stress disorder - whether applicant was aware, or ought to have been aware, of "nature [and] extent of injury" more than 3 years before making application to extend time - aware of symptoms but not aware of diagnosis as post traumatic stress disorder - s 60I(1)(a)(ii), s 60I(1)(b) - exercise of discretion under s 60G(2) - relevant considerations - what applicant knew or ought to have known about nature and extent of injury
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	CRA v Martignago & Anor [1996] 39 NSWLR 13 Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Drayton Coal Pty Limited v Drain (C/A 22/8/95 unrep)
DECISION:	That the Application for Leave to Appeal be granted; That the appeal be allowed ; That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent's Notice of Motion be dismissed with costs; That the opponent pay the claimant's costs of the application for leave and the appeal, and have a certificate if otherwise qualified.

CA 41062/00
DC 8272/98
SHELLER JA
HODGSON JA
ROLFE AJA


30 November 2001

Commonweath of Australia v William Richard Nelson

Judgment

1 Sheller JA: I agree with Rolfe AJA.

2 Hodgson JA: I agree with Rolfe AJA.

3 Rolfe AJA:

The General Nature Of The Proceedings


The claimant, Commonwealth of Australia, (“the Commonwealth”), for which Mr C R R Hoeben of Queen’s Counsel appeared, has sought leave to appeal against orders made by Robison DCJ on 15 December 1999, pursuant to a Notice of Motion, which, it was conceded for the purposes of this application, was filed on 6 November 1998, extending the limitation period within which the opponent, Mr William Richard Nelson, for whom Mr J A Loxton of Counsel appeared, might sue it. Mr Nelson opposed the grant of such leave, but the parties agreed that if leave is granted this Court should determine the appeal and, if it is of the opinion that the appeal should be allowed, re-exercise the trial Judge’s discretion, rather than remitting the matter to him.

The Factual Background

4 Mr Nelson was born on 27 December 1960 and joined the Royal Australian Navy in October 1976. On 1 March 1981, he was serving on a submarine, HMAS Onslow, which was participating in exercises off the New South Wales’ coast. When the submarine descended to a greater depth, there was allegedly a malfunction causing diesel exhaust fumes from an engine to enter her. This reduced visibility to almost zero, and Mr Nelson inhaled fumes. Emergency procedures were put in place, but he collapsed and, after he and other members of the crew were rescued, he was admitted to hospital where he remained for two days. Shortly after, he “fully recovered and 3 weeks after the incident” was back at sea.

5 In his affidavit in support of the Notice of Motion, which was sworn on 4 March 1999, he stated that the crew was offered no counselling and, in para 13, that since the incident:

“… I have developed emotional and psychological problems which resulted in my attempting to commit suicide in October 1992. I am still suffering the effects of this smoke inhalation”.

6 He annexed two reports from a Psychologist, Mr Keith Bourke, dated 14 June 1994, and 18 July 1994. Each was addressed to a Naval doctor. The first set out some tests performed. The second, after referring to the tests, expressed the view that Mr Nelson:

“… continues to report some intrusive dreams and flashbacks which appear associated with his involvement in a submarine accident some twelve years ago and has a number of stressors associated with his current family situation, access and custody issues involving one of his sons from a previous marriage and some distressing thoughts and memories associated with his sons (sic) apparent sexual assault whilst in the care of his ex-wife. C.P.O. Nelson continues to display rather low frustration tolerance particularly in close interpersonal relationships a situation which I attribute to Post Traumatic Stress”.

7 Mr Nelson’s evidence, which was accepted by the trial Judge, was that he did not see this report until 1997. The Commonwealth did not challenge this finding.

8 Mr Bourke reported that some benefit had been received from conflict resolution strategies, family counselling, and eye movement desensitisation and reprocessing methods of therapy. He considered that the latter should continue, and that some supportive counselling and a follow-up neuropsychological assessment should take place in 12 months. There was no evidence that this occurred.

9 In para 14, Mr Nelson referred to his having obtained a disability pension. The application for that pension was Ex 1. It was verified by a declaration he made on 26 July 1995. In it he provided the following details of the incident:

“01 Mar 1981 gassing accident HMAS Onslow, hospitalized for acute smoke inhalation/carbon monoxide inhalation”.

10 He identified his disability as “anxiety attacks”, which he asserted were caused by:

“Exposure to trauma and panic due to a preventable gassing accident”.

11 He said he first became aware of the disability in 1984 and that he was treated for anxiety by Dr Ross Pattinson and by Mr Keith Bourke.

12 In granting the pension, the Commonwealth stated, in a letter to Mr Nelson dated 8 December 1995, (Ex 2), that the medical name for the claimed condition was “generalised anxiety disorder”. There was an unresolved issue as to whether Mr Nelson received this letter, although the pension was paid.

13 In para 15, he stated that he still suffered from “serious personality problems”, and that he experienced approximately two to three “panic attacks” a day.

14 He continued that he remained in the Navy, and felt that his problems would eventually resolve and he would continue his life in it. However, he obtained a discharge in January 1997.

15 In para 19, he stated that in 1991 he began to experience “panic attacks”, which occurred 6 or 7 times a day and, in para 20, he said:

“Progressively and leading into 1992 I started to develop changes in moods where at times I did not want to communicate with other people. From what my wife was telling me, I was going through ‘mood swings’ which were quite bad”.

16 In the same year he commenced experiencing bad dreams, which primarily involved his seeing light bulbs filled with smoke and, at the end of the dream, one of the globes would smash on his chest and break open. Associated with the light bulbs was a sensation of the smell of diesel fumes and, after those dreams, he woke in a cold sweat and was unable to sleep for the rest of the night.

17 In March 1992 he remarried and, in April 1992, he and his wife moved to Nowra, as he had been posted to HMAS Albatross. Thereafter, the dreams became more prolific and occurred every night. He said:

“They were of the same intensity and were of the same light bulb procedure referred to above”.

18 He continued that he became more introverted and moody, leading to fights and tension between himself and his wife, to whom he started to exhibit violence. In late October 1992, he attempted to commit suicide and, it would seem, thereafter he started to see Mr Bourke. In para 29, he said that:

“… as a result of those consultations with Mr Bourke it appeared that my emotional problems were attributable to the incident in the submarine in 1981”.

19 In para 31, he stated that he continued to see Mr Bourke for psychological assistance until January 1995, the treatment taking the form of “emotional counselling”. No medication was prescribed, but the counselling was of considerable help, “but there still appeared to be a residual problems (sic) that wouldn’t go away”.

20 Mr Nelson set out certain violent behaviour towards his wife, the consequences thereof and difficulties brought about by his over-indulgence in alcohol.

21 It appears that counselling concluded in February 1996, and thereafter he still continued to suffer panic attacks when exposed to excessive amounts of exhaust fumes. This also involved bad dreams with the light bulbs. The dreams continued at about the rate of one every three or four months.

22 In December 1997, he spoke to his solicitor about a different matter, but the solicitor asked him why he had not done anything earlier to sue the Commonwealth, to which Mr Nelson replied that it was because he did not think he could. He referred to a tradition in the Navy about not making a fuss, let alone lodging any complaints or seeing solicitors about suing it for damages, and to his and the whole crew having been told by a Naval Captain that another seaman could not sue for damages for the incident.

23 Mr Nelson gave quite detailed oral evidence. He said that before he read Mr Bourke’s reports in March 1997, his understanding was that he had panic attacks and mood problems, “and that was about the extent of what I knew”. However, having read Mr Bourke’s reports, his view changed, because they led him to believe that the condition that he had was Post Traumatic Stress Disorder caused by the accident in 1981.

24 In cross-examination he said he noticed that there were changes in about late 1989. He did not consider that the attempted suicide was associated with the 1981 incident and:

“Q. Would it be true to say that you didn’t recognise at that time that your inability to control your emotions may have related to the incident on the submarine?
A. I didn’t relate them to the incident on the submarine at all.
Q. Do I take it that that is the position today?
A. No I don’t think it is”.

25 At p 55, Mr Nelson was asked whether, at some stage after seeing Mr Bourke in late 1992, he was able to associate his emotional conditions with the events which occurred on the submarine, to which he replied that he did not associate those conditions with that event, “until after I saw Mr Bourke’s report on (sic) 1997”.

26 He said it was as a result of being told that there was a diagnosis of Post Traumatic Stress Disorder that he was able to associate in his mind that that condition was caused primarily by what happened on the submarine.

27 There are a number of difficulties in accepting the veracity of this answer. First, it was inconsistent with his evidence in para 29 that as a result of his consultations with Mr Bourke, which were held well before 1997, it appeared that his emotional problems were attributable to the 1981 incident. Secondly, it was inconsistent with the information in the application for a disability pension, in which Mr Nelson attributed his anxiety attacks to the reason I have mentioned. Thirdly, no later than November 1995, Mr Nelson saw Dr Dinnen, a Consultant Psychiatrist, whose report became Ex 3. Dr Dinnen said that Mr Nelson had told him that he had been suffering from anxiety attacks for about 5 years, which were related to a submarine accident, “which occurred 14 years ago”, and since that time “aspects of my life changed”. Mr Nelson gave Dr Dinnen a description of the accident, and the report of Dr Dinnen continued:

“The patient said that he had a most traumatic personality change after the accident. ‘I became violent.’ He had a lot of difficulty with domestic violence. His first marriage eventually broke down. He said for the first three months after the accident he had severe headaches whenever he smelled exhaust fumes. He said he had a pattern of heavy drinking through the years, but stopped twelve months ago when his present wife gave him an ultimatum.
The patient said he developed symptoms of anxiety about four or five years ago. He started to have states of panic. He said his heart would start to race, he would feel flushed, scared and would have to stop whatever he was doing. This would happen whenever he could smell exhaust fumes, no matter where he was. He said he would pull over in his car or sit down in a shopping centre until the episode passed. Usually it would settle within ten minutes. The most recent attack a week previously lasted for 45 minutes. The attacks initially used to occur three or four times a day, but now occur once a day.
The patient said that he has had a lot of counselling for the last five years. He said he talked about the incident in depth with two different people. Before that he hadn’t spoken about it. He did not understand why the reaction occurred ten years after the incident. He said that he attended a psychologist in Sydney, Ross Pattinson, and paid for that treatment himself. For three years while he was stationed at Nowra he saw another psychologist, and the Navy paid for his treatment to some extent. He said at one stage he had automatic eye movement desensitisation, and from this he found out that he had been blaming himself for the death of the trainee”.

28 Dr Dinnen expressed the opinion that Mr Nelson has coped well with the traumatic incident, which occurred 14 years previously, resulting in loss of life and injury on board a submarine. He continued:

“He suffers from anxiety attacks, panic disorder and there are some features of personality changes including alcoholism and aggressive behaviour”.

29 His conclusion was that the diagnosis is “generalised Anxiety Disorder and Panic Disorder with evidence of chronic Post Traumatic Stress Disorder”.

30 Although Mr Nelson did not see Dr Dinnen until late November 1995, the history he gave was obviously referring to matters years before that consultation.

31 Contrary to the oral evidence given by Mr Nelson that he did not associate his emotional conditions with the submarine incident until 1997, his evidence in para 29 of his affidavit, his application for the disability pension, and the history he gave Dr Dinnen, make it clear that well before November 1995, Mr Nelson associated the problems he was experiencing with that event.

32 In cross-examination, Mr Nelson was referred to what he had told Dr Dinnen. He was taken through the report and agreed that Dr Dinnen could only have received such information from him.

33 At p 61, he gave the following evidence:

“So your position is that when you finished your consultation with Dr Denham (sic) he did not let you know what his ultimate diagnosis of whatever condition you had was?
A. No I didn’t know of any ultimate diagnosis of what my condition was until March 1997.
Q. What was it about the diagnosis of Post Traumatic Stress Disorder, which made you connect that diagnosis with the incident on the submarine?
A. I guess it was the way it was worded in the letter from Mr Bourke.
Q. But did you understand that to mean or to include the anxiety disorder and the panic disorders that you had known about it?
A. Yes.
Q. Effectively it was a label for the same things?
A. I believe so yeah.
Q. Was that your understanding?
A. Yes.
Q. So it would be true to say, would it not, that if that’s the case then prior to March 97, you had in fact associated your panic attacks and psychological condition with the incident on the submarine?
A. No I had not”.

34 My understanding of this evidence is that Mr Nelson was maintaining his stance that he did not associate his condition with the submarine incident until 1997, which he stated in answer to the last question. I have pointed to the evidence which is, in my opinion, quite inconsistent with this evidence.

35 Mr Nelson was then cross-examined about his application for a disability pension and, at p 64, he said:

“Q. Now it follows does it not, having been shown that document and I take it somewhat refreshed your memory from it, that in fact since 1984 you have associated your anxiety attacks with the incident on the submarine?
A. It appears that way yes.
Q. And you still do, is that not right?
A. I do further since yes”.

36 In re-examination, at pp 65-66, Mr Nelson said:

“Q. Now with regard to the diagnosis of Post Traumatic Stress Disorder how does that change your opinion of yourself notwithstanding that you have linked your anxiety attacks with the incident prior to finding out that you had that actual diagnosis?
A. I am sorry I don’t understand what you’re trying to ask me.
Q. But you have before you saw the report from Mr Bourke suffered from anxiety attacks?
A. Yes.
Q. And you have linked those attacks with the incident that occurred in 1981?
A. Yes.
Q. How does the report from Mr Bourke change your understanding as to that link?
A. The report from Mr Bourke was the only time that I had ever seen it in writing on the same piece of paper personally from somebody that obviously wasn’t me. The only time that I had seen and been recognised by somebody else”.

37 The questions seem to have accepted the view to which I have come, viz that prior to reading Mr Bourke’s report in 1997, Mr Nelson associated his symptoms with the incident on 1 March 1981.

38 He said that he thought that previously the position had not been recognised; that he thought it was a problem he had to overcome; that the matter concerned one of strength of character; and that the report of Mr Bourke indicated to him that he did have a medical condition, not a strength of character problem.

The Issues Raised

39 Mr Nelson brought his application for an extension of time pursuant to s 60 G of the Limitation Act 1969. Section 60 I provides:

“ Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(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 or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)”.

40 So far as s 60 I(1) was concerned, the parties were agreed that the only matters in issue were those posed by sub ss (1)(a)(ii), at the expiration of the relevant limitation period, and (1)(b).

41 Section 60 G (2) gives the Court a discretion to extend the time “if it decides that it is just and reasonable to do so”.

42 It was agreed that the relevant limitation period was 6 years from 1 March 1981, and the Commonwealth did not assert that if time were extended it would suffer any prejudice.

His Honour’s Reasons

43 His Honour defined the legal issues by reference to ss 60 F, 60 G(2) and 60 I. He observed there was a discretion, provided Mr Nelson passed through “the gateways” in s 60 I. He noted that Mr Nelson bore the onus and the importance of his considering all the evidence and submissions, “in the task of exercising an appropriate discretion”.

44 His Honour referred to the evidence at some length, and noted Mr Nelson’s assertion that he did not become aware of Mr Bourke’s reports until 1997, a finding, as I have said, the Commonwealth did not challenge.

45 His Honour formed the impression that overall Mr Nelson was a truthful and reliable witness. I have reservations about this having regard to the inherent conflict in his evidence to which I have referred, which conflict emerged from uncontradicted facts and the resolution of which was not dependent on observation of Mr Nelson.

46 He continued with the history, including the consultations with Mr Bourke, and, after discussing Mr Nelson’s evidence about his knowledge of his legal rights, he considered it was reasonable to conclude that Mr Nelson’s evidence as to his knowledge of them could be “comfortably accepted”.

47 The judgment considered nextly the cross-examination, and noted that Mr Nelson conceded that he “probably” indicated to Dr Dinnen that the panic attacks were related to the submarine accident. However, his Honour referred to the fact that Dr Dinnen did not tell him his diagnosis of the condition.

48 His Honour referred to the application for the disability pension, and he observed that the date of the declaration, namely 26 July 1995, was significant when one took into account the provisions of the legislation:

“… as well as the assertions on the part of the defendant, that this was effectively patently obvious to the plaintiff that there was a connection between his disabilities at that time and the circumstances of the events on board the submarine in 1981”.
This rather undermines his Honour’s earlier assessment of credibility.

49 His Honour observed that the disability was described simply as “anxiety attacks”. He set out the information as to how the service caused it, and that Mr Nelson first became aware of it in 1984.

50 He referred to the fact that the pension was granted on the basis that Mr Nelson had a condition, the medical name of which was said by the Commonwealth to be Generalised Anxiety Disorder, and said that the reports of Mr Bourke went further than that.

51 He noted Mr Nelson’s concession that since 1984 he associated the anxiety attacks with the incident on the submarine, which he considered was amply indicated in the documentary evidence to which he had referred.

52 He then turned to the submission that Mr Nelson did not become aware of “the real extent of his injuries” until 1997, a submission he considered had “some merit”, which he based on the evidence in the affidavit.

53 His Honour considered the degree and extent of knowledge and, at p 29, said:

“It seems to me that it was not until he saw Mr Bourke and obtained an assessment from him, effectively some years after Mr Bourke’s correspondence was issued, that it dawned on the plaintiff then that there was, in fact, a diagnosed condition as a result of the incident in 1981, at least on the strength of that medical opinion”.

54 In these circumstances his Honour considered there was “an awareness but not a complete awareness commensurate with” those findings. He continued that the extent of the injuries was effectively diagnosed and classified by Mr Bourke, and that until he had the opportunity of reading his reports in 1997, Mr Nelson did not know the “extent” of the personal injuries suffered.

55 He said that he had formed the view that Mr Nelson “has passed through the gateway set forth in s 60 I (1)(a) (i) through to (iii)”, and he considered, in those circumstances, that it was just and reasonable to grant the extension of time.

56 However, his Honour did not direct his attention to the whole of s 60 I (b). That requires the application to be made within 3 years after the plaintiff became aware, i.e. subjectively became aware, or ought to have become aware, i.e. objectively ought to have become aware. The Commonwealth put in issue each of these matters. It also contended that, in the circumstances of this case, the discretion conferred by s 60 G(2) should not have been exercised in Mr Nelson’s favour.

57 The issues posed were, accordingly, whether the application, which was admittedly made on 6 November 1998, was made within 3 years after Mr Nelson either became aware, or ought to have become aware, of the nature or extent of the personal injury suffered and, if he did not, whether, in all the circumstances, it is “just and reasonable” to extend the time.

A Consideration Of The Submissions

58 Mr Hoeben submitted, in my opinion correctly, that for more than 3 years prior to 6 November 1998, Mr Nelson had been aware of the nature and extent of the personal injuries from which he was suffering, and that they arose from the occurrence on 1 March 1981. In those circumstances the “label” given to the conditions from which he was suffering did not assist a submission that he was unaware of either the nature or, more particularly, the extent, of the personal injury suffered. The contrary submission was that it was not until March 1997, when Mr Nelson read that Mr Bourke defined the condition as Post Traumatic Stress, that he became aware that he had a medical, as opposed to an emotional, condition and, accordingly, it was not until then that he became aware of the extent thereof.

59 The same medical condition may be described in somewhat different terms by different persons specialised in the field. In the present case, whilst Mr Bourke referred to the condition of Post Traumatic Stress, Dr Dinnen offered a diagnosis of Generalised Anxiety Disorder and Panic Disorder and Chronic Post Traumatic Stress Disorder. I appreciate that Mr Nelson was not made aware of Dr Dinnen’s diagnosis, and it would seem that the “medical name” referred to in the letter from the Commonwealth of 8 December 1995, granting the pension for “Generalised Anxiety Disorder”, was taken from Dr Dinnen’s report.

60 However one labelled the condition, Mr Nelson was clearly aware of all the symptoms from which he was suffering. That awareness dated back a number of years prior to 6 November 1995.

61 In CRA Limited v Martignago & Anor [1996] 39 NSWLR 13, this Court had to consider a somewhat similar problem. Clarke JA, with whom Priestley and Powell JJA agreed, gave the judgment of the Court. It is necessary to refer to the facts in a little detail.

62 On 22 March 1985 the respondent, in the course of his employment, sustained a neck injury lifting heavy pipes. On 4 August 1986, he suffered an injury to his lower back and neck in the course of his employment. The two incidents were the subject of claims against his employer and, so far as the second incident was concerned, a claim against another party.

63 The respondent sought medical assistance from doctors, but did not bring any proceedings until a Statement of Claim was lodged on 11 November 1992, by which time both claims were statute-barred. Accordingly, he sought an extension of time, the basis of his claim being that he was unaware that he was suffering from disc pathology in his neck and back until early 1992, when a specialist apprised him of the nature of his problem and performed surgery involving his cervical spine.

64 The application was dismissed by a Master, who was satisfied that by May 1988, when the respondent had consulted a doctor, that there had been brought to his attention a number of medical opinions, which showed that there were structural problems with his neck. The Master was also satisfied that on 24 May 1988, the respondent was aware that an operation was necessary to relieve him from his pain, and that he was aware of, and had available to him, the knowledge upon which he ought to have brought an action, and that “the additional information brought to his attention after the expiry of the limitation period added little to what the respondent knew beforehand”.

65 The respondent’s appeal to a Judge of the Common Law Division was upheld, and the appellant then appealed to this Court. That appeal was allowed.

66 Clarke JA noted the distinction between sub ss 60 I(1)(a) and (b) as to an applicant’s being “aware”: (sub s (a)); and circumstances in which he “ought to have become aware”: (sub s (b)).

67 At p 20, his Honour said that well before 1992, the respondent knew that he had serious problems in his neck, and that he had been told by a doctor in 1988 that his bones were worn out, and that he needed an operation in which his neck would be fused. He had also discussed the operation with a treating doctor at about the same time. His Honour continued:

“It may be accepted, in the light of his evidence that he had not been told prior to May 1992 in direct terms that he was suffering from a disc prolapse and pressure on the spinal chord nerves, that he was not aware of the precise medical condition but that acceptance doesn’t detract from the fact that he was aware of serious neck problems which, in the view of more than one doctor, required a fusion involving the transportation of some bone from his right hip.
In FJ Walker Limited v Webber (Court of Appeal, 16 November 1989, unreported), a case involving section 57 and section 58 of the Act, Meagher JA, who gave the principal judgment, said (at 6):
‘… One can know the “nature and extent” of one’s injury even if one is ignorant of the final form which it will take … In general, not only need the applicant not know his final state, he need not know from what condition he is suffering. If he knows “the various signs and symptoms” of his condition, and a reasonable man in his position would know of this potential, that is sufficient … by way of exception to the previous proposition, if an applicant knows of his “signs and symptoms” but a reasonable man in his position would consider them as signifying as trivial a condition which in fact was serious, he cannot reasonably be held to know the “extent” of his injury’.
I can readily accept that those statements of principle were accurate in the context of the facts and legislation (section 58) then under discussion. In the context of section 60 I there is no reason to import concepts involving the hypothetical reasonable man. Sub section (1)(a) is concerned solely with the actual knowledge of the applicant and section 60 I (1)(a)(ii) poses a factual question which cannot be answered by some universal or overriding test. On the other hand I would respectfully agree with Meagher JA that an applicant may not know the medical description or diagnosis of his or her condition and yet be unable to establish that he is unaware of the nature and extent of his injuries.
The sub section is concerned to enquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who is unaware until years later that there were serious complications flowing from that blow (for example, osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.
I recognise that I have put the matter very generally. That is because the nature of the factual enquiry is not susceptible to precise definition. The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant enquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the enquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second enquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the enquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.
In the particular circumstances of this case it seems to me that the respondent knew the nature of his injury by 1988. The only question is whether, having regard to the information he had been supplied, he knew its extent. I accept the respondent was unaware of the precise description of the condition from which he was suffering. Nonetheless he was aware that he was suffering regular agonising pain involving his neck and that by May 1988 two specialists considered that that condition could only be alleviated by an operation involving the fusion of parts of his cervical spine. The fact that he was unaware, as he said, that his spinal chord nerves were caught in damaged discs is to my mind not in point for he knew, in broad terms, the condition from which he was suffering. He also knew the symptoms arising from that condition and the procedures considered necessary to alleviate it”. (My emphasis)

68 In the instant case, Mr Nelson was aware of all the symptoms from which he was suffering. He had received psychological counselling and had seen a psychiatrist. There was no suggestion that the symptoms would become worse. The extent or limits of the condition from which Mr Nelson was suffering had been reached. In these circumstances, it seems to me, that his lack of knowledge that the problems could be described as Post Traumatic Stress did not in any way affect the extent of his personal injury. Rather, that was a way in which it could be described. However, as Clarke JA said, the Court is not concerned “with the technical name or description of an injury but its effect, actual and potential, upon the applicant”. It would be very strange if a person, aware of all the symptoms and in circumstances where there was no evidence that they would worsen, could say that he or she was not aware of their extent merely because different doctors may describe them differently.

69 Martignago was approved by the joint judgment of the High Court in Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1. In that case, the trial Judge, in considering the “nature or extent” of the injury, accepted the worker’s oral evidence that he thought his illness or disease would remain static, and would not necessarily deteriorate further. In this Court, Handley JA found that the worker’s awareness of the nature or extent of his disease was, for all practical purposes, complete between 2 April 1979 and 15 August 1986. The High Court found that his Honour, in coming to this conclusion, “effectively applied an objective test”.

70 The High Court was of the opinion that neither reasonableness nor constructive knowledge was an element in a consideration of sub s (1)(a).

71 Their Honours then considered the extent of the injury. At p 11 they said:

“The ‘extent’ of an injury must include all its consequences. It is not an unnatural reading of section 60 I (1)(a)(ii) to hold that what the Court must consider is the total extent of the applicant’s injury in determining whether, at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury. Unless that sort of construction is adopted, the Act will fail to provide for the very sort of case for which the legislation is designed to provide a remedy. That is to say the case where the most serious consequences of an injury only arise after the expiration of the limitation period.
Thus in The Commonwealth v Dinnison , although the applicant was aware during the limitation period that he had an anxiety state, it was only after the expiration of that period that he became aware that he had a psychiatric illness. Because of that fact, the Full Court of the Federal Court held that he was not aware of the extent of his injury. Similarly in F J Walker Limited v Webber , the New South Wales Court of Appeal held that, although the applicant knew that he had a disc lesion, he was unaware of ‘the extent’ of his injury because ‘he did not know it would or could lead to a surgical fusion or unfitness for work’.
The better view of section 60 I (1)(a)(ii) is that ‘the extent’ of the injury is to be determined as at the date of the application and not at the expiration of the limitation or earlier period. When the extent is so determined, the applicant must prove that, at the expiration of the limitation or earlier period, he or she was unaware that the injury was so extensive”.

72 Their Honours then quoted at length from the judgment of Clarke JA in Martignago, to which I have referred, and considered various cases in which there had been a further deterioration in the condition of the applicant, which meant that there was not an appreciation of the extent of the injury. They continued, at pp 13 and 14:

“These statements imply, correctly in our opinion, that an applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all of its pathological and physiological incidents . If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of section 60 I (1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathological consequences of the injury . Thus, the New South Wales Court of Appeal has held that an applicant who knew that he had a disc lesion that caused him great pain and that the condition could only be alleviated by a spinal fusion was aware of ‘the extent’ of his injury although he was unaware ‘that his spinal chord nerves were caught in damaged discs’.” (My emphasis)

73 The position, in the present case, is that Mr Nelson was aware of the various symptoms from which he suffered. He was aware that he had received some treatment. There was no suggestion that the condition would deteriorate, such that the symptoms from which he had been suffering for a long period would change or become worse, thus not enabling him to be aware of the “extent” of his injury. The only new fact, which came to his attention, was that the symptoms, of which he was fully aware, were described by Mr Bourke as Post Traumatic Stress. He sought, thereupon, to draw a distinction between what he had thought was an emotional condition and a medical condition. However, whether one describes the condition as emotional or medical, the symptoms and effect upon him were the same, and there is certainly no suggestion that having been told that he was suffering, in the opinion of Mr Bourke, from Post Traumatic Stress, that he sought any further treatment or that his condition changed. In these circumstances it would be, in my opinion, fanciful to suggest that Mr Nelson was not aware of the extent of his injury for many years prior to November 1995, or that his becoming aware of Mr Bourke’s report in any way had an effect upon the extent of the injury.

74 In Commonwealth of Australia v Dinnison (1995) 56 FCR 389, the respondent instituted proceedings in tort against the Commonwealth in 1988 in relation, inter alia, to psychiatric illness suffered as a result of his presence at nuclear tests carried out at Maralinga. The Commonwealth pleaded the Limitation Act. The respondent believed for some time that he had suffered physical injury and anxiety as a result of exposure to nuclear radiation, but had not perceived any psychiatric injury until a medical examination in 1993. In these circumstances he alleged that he was unaware of the extent of the injury.

75 At p 399, Gummow and Cooper JJ, in their joint judgment, said that the trial Judge had found that the respondent held the view that he suffered injury as a result of exposure to radiation, but that the case relied upon was not one of radiation damage, but of psychiatric damage, specifically the causing of a chronic and disabling anxiety state. Their Honours said that it followed that the question of the establishment of a cause of action for the purposes of the application of the legislation was to be approached in terms of the current law relating to the infliction of damage by “nervous shock”.

76 The applicant annexed to his affidavit in support of the application a report of Dr Dinnen, and said that until he was given it, he was not aware of any medical evidence that would support his claim against the Commonwealth. Dr Dinnen offered the following opinion:

“This patient is suffering from a chronic anxiety state as a result of his experiences at Maralinga during the atomic testing in 1957. His involvement with Aborigines at the time has much affected his life, and coloured his experiences. He perceives that his general health has been adversely affected by his exposure to radiation at Maralinga”.

77 The trial Judge found that it was not until the applicant was examined by Dr Dinnen that he was made aware of the fact that he had a psychiatric injury, as opposed to physical injuries, from which he considered that he had suffered, and the existence of which caused understandable anxiety.

78 The distinction between that case and the present is that the trial Judge’s finding was that the applicant had not been aware that he was suffering from any psychiatric injury until such time as he read the report of Dr Dinnen. However, in the present case, Mr Nelson was aware that he was suffering from an emotional state, and there was no evidence to suggest that there was any difference between that state and Post Traumatic Stress. Indeed, it was the condition from which he was suffering that constituted Post Traumatic Stress.

79 In the result, I am of the view that Mr Nelson was aware of all the symptoms from which he was suffering and, therefore, the extent of his personal injuries. The mere fact that he was not aware that those symptoms could be characterised as Post Traumatic Stress does not, conformably with the authorities to which I have referred, lead to the conclusion that he was unaware of the extent of the personal injuries. It would be, in my opinion, an extraordinary result if, having the awareness he did, he could nonetheless overcome the problems created by sub s (a)(ii) because doctors’ views varied as to the way in which the problem was described.

80 In any event, Mr Nelson had to overcome not only subjective awareness, but the requirement that he ought to have become aware. As I have said, on several occasions, his symptoms were well known to him, and he was treated for them. In these circumstances, it seems to me, that there is much force in the submission of Mr Hoeben that he ought to have asked Mr Bourke and/or Dr Dinnen the cause of his problems. Further, he saw Dr Pattinson, a psychiatrist of his own choice and whom he paid. There was no reason he could not have asked him from what he was suffering. There was nothing, so far as the evidence disclosed, precluding Mr Nelson’s asking such a question and, if he did not receive a satisfactory answer, seeking further medical advice.

81 It is important to note that the trial Judge did not consider, so far as I can see, the application of the principles to which I have referred, grounded as they are in sub ss (a)(ii) and (b). In that regard, I consider that his discretion miscarried. However, I also consider that the discretion miscarried in another important particular.

82 His Honour said that it was necessary to determine whether it was just and reasonable to extend time. But, he did not refer to the general principles, which inform the way in which that discretion should be considered.

83 In Martignago, Clarke JA said, at p 19, in relation to the exercise of discretion in favour of making an order:

“That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the Master held was the situation in this case, would not be relevant. In my opinion it would be a highly relevant matter for consideration in the exercise of discretion. I say this in particular having regard to the policy underlying this part of the Act to which reference was made by Deane J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. There his Honour said (at 250-251):
‘It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until more than 12 months before the commencement of the proceedings’.”

84 At page 22, his Honour said:

“Thirdly, the fact that the respondent had the means of discovering the extent of his injury readily available to him was, in my view, relevant to the exercise of the judicial discretion under section 60 (g) (sic) and was of primary importance. In this case his Honour did not have regard to it and in this respect was, in my opinion in error.”

85 In Harris, the High Court emphasised the importance of the discretion. Their Honours said, at p 14:

“Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. Unawareness of all the consequences may get the applicant through the section 60 I (1)(a)(ii) gateway, but will not guarantee a passage through section 60 G”.

86 In Drayton Coal Pty Limited v Drain (Court of Appeal – 22/8/95 – unreported), Gleeson CJ said, at p 8:

“It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of section 60 I (1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff ’s awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly the state of a plaintiff ’s awareness of certain acts or omissions connected with the plaintiff ’s injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, section 60 G (2) may, depending upon the facts and circumstances of the case, operate as an important qualification upon the practical effect of section 60 I”.

87 None of these passages refer to, let alone place emphasis on, prejudice to the defendant. In coming to my view in this matter, I have not overlooked Mr Hoeben’s concession about absence of prejudice.

88 The trial Judge contented himself by saying that it seemed to him that a fair trial could be held, notwithstanding the time which had elapsed, and that he considered it to be just and reasonable to grant the extension of time. However, if I may say so with respect, his Honour does not seem to have had any regard to the types of questions to which I have referred, and which are relevant to the exercise of the discretion. Not only did this, in my opinion, cause his discretion to miscarry, it also led to a ground of appeal based on lack of reasons. Because of the conclusion to which I have come, I find it unnecessary to pursue this.

Conclusions

89 In the present case, I consider that the trial Judge was in error, and that his discretion miscarried, in that Mr Nelson was, prior to the relevant period, aware of all the symptoms from which he was suffering, and there was no evidence to suggest that the extent of the personal injuries was or would become greater or more severe than that of which he was aware. Alternatively, if that conclusion be wrong, I consider that he ought to have been aware of the extent of the injuries by taking the simple step of enquiring of those treating him what his problems were.

90 Finally, having regard to his state of knowledge of the symptoms, even if he was not aware of every last one, the appropriate conclusion is that in the particular circumstances of this case, he had sufficient knowledge such that it would not be, in my opinion, just and reasonable, for the reasons I have sought to explain, to extend the time.

Orders Proposed

91 I propose the following orders:

(1) That the Application for Leave to Appeal be granted;

(2) That the appeal be allowed;

(3) That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent’s Notice of Motion be dismissed with costs;

(4) That the opponent pay the claimant’s costs of the application for leave and the appeal, and have a certificate if otherwise qualified .
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CA 41062/00
DC 8272/98
SHELLER JA
HODGSON JA
ROLFE AJA


30 November 2001

Commonweath of Australia v William Richard Nelson

LIMITATION OF ACTIONS – postponement of bar – appeal against grant of extension of time under s 60G Limitation Act 1969 – cause of action to recover damages for post traumatic stress disorder – whether applicant was aware, or ought to have been aware, of “nature [and] extent of injury” more than 3 years before making application to extend time – aware of symptoms but not aware of diagnosis as post traumatic stress disorder – s 60I(1)(a)(ii), s 60I(1)(b) – exercise of discretion under s 60G(2) – relevant considerations – what applicant knew or ought to have known about nature and extent of injury

In November 1998, the respondent sought an extension of time pursuant to s 60G of the Limitation Act 1969 to commence an action to recover damages from the appellant for Post Traumatic Stress Syndrome (PTSD) which he allegedly suffered from as a result of an incident that occurred in 1981 while he was employed by the appellant in the Royal Australian Navy. The limitation period expired six years after the date of the incident.

Section s 60G(2) conferred a discretion on the Court to extend the time if it decided that “it is just and reasonable to do so”. Section s 60I(1) provided that:

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(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 or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)--(iii).

Prior to November 1995 the respondent had become aware that he had “emotional” problems that were attributable to the 1981 incident. These problems included anxiety attacks, mood swings and bad dreams. After attempting to commit suicide in 1992, he consulted a psychologist and began receiving counselling, and he later consulted a psychiatrist. In 1994, the psychologist diagnosed him as having PTSD, and the psychiatrist’s diagnosis in 1995 was that he had “generalised Anxiety Disorder with evidence of chronic PTSD”. He was not told about those diagnoses and it was not until March 1997 that he read the psychologist’s report and discovered that he had been diagnosed as suffering from PTSD. He said that prior to reading that report in March 1997 he thought he had an emotional condition and it was only after reading the report that he realised that he had a medical condition.

The trial Judge granted the respondent an extension of time. The Judge held that the respondent satisfied the requirements of s 60I(1)(a) (i) through to (iii); that, notwithstanding the time that had elapsed, a fair trial could be had, and that within s 60G(2) is was “just and reasonable” to grant the extension.

The appellant sought leave to appeal against the trial Judge’s decision. The application for leave and the appeal were heard concurrently. The issues were whether the application to extend the time was made within 3 years after the respondent became aware, or ought to have become aware, “of the nature [and] extent of the personal injury suffered”; and if not, whether, in all the circumstances, it was “just and reasonable” to extend the time.

HELD by Rolfe AJA (Sheller JA & Hodgson JA agreeing), granting leave to appeal, and allowing the appeal:

(1) The application to extend time was made more than 3 years after the respondent was aware of “of the nature [and] extent of the personal injury suffered”: prior to November 1995, he was aware of all of the symptoms from which he was suffering, and there was no evidence to suggest that those symptoms would change or become worse. The fact that he was not aware that his symptoms could be described as PTSD, or that he thought he had an “emotional” as distinct from a “medical” condition, does not mean he was “unaware of the…extent of personal injury suffered”: CRA Limited v Martignago & Anor (1996) 39 NSWLR 13; Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1 applied; Commonwealth of Australia v Dinnison (1995) 56 FCR 389 distinguished.

(2) Alternatively, the application was made more than 3 years after he ought to have been aware of “of the nature [and] extent of the personal injury suffered”: prior to November 1995, he ought to have been aware that he was suffering from PTSD; he should have taken the simple step of asking those treating him what he was suffering from.

(3) It was not “just and reasonable” to extend the time:

(a) What the respondent knew or ought to have known about the nature and extent of his injury was relevant to the exercise of the discretion under s 60G(2): CRA Limited v Martignago & Anor (1996) 39 NSWLR 13; Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1; Drayton Coal Pty Limited v Drain (NSW Court of Appeal, 22/8/95, unreported) applied.

(b) Although the appellant did not assert that it would suffer any prejudice if time were extended, having regard to the respondent’s state of knowledge of the symptoms, even if he was not aware of every last one, the appropriate conclusion is that in the particular circumstances of this case, he had sufficient knowledge such that it would not be just and reasonable to extend the time.

ORDERS

(1) That the Application for Leave to Appeal be granted;

(2) That the appeal be allowed;

(3) That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent’s Notice of Motion be dismissed with costs;

(4) That the opponent pay the claimant’s costs of the application for leave and the appeal, and have a certificate if otherwise qualified .

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