Dinnison, B.C. v Commonwealth of Australia

[1994] FCA 87

BARRIE CHARLES DINNISON v COMMONWEALTH OF AUSTRALIA
No. NG572 of 1991
FED No. 87/94
Number of pages - 8
Limitation Of Actions - Torts

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Limitation Of Actions - application to extend time for bringing of an action - s 58(2) Limitation Act 1969 (NSW) - effect of ss 60F and 60G - whether applicant "was unaware of the fact, nature, extent or cause" of injury - whether "just and reasonable" to extend time - whether reasonable prospects of establishing claim - whether prejudice to defendant.

Torts - meaning of "nervous shock" - whether shock caused "a recognisable psychiatric illness".

Limitation Act 1969 (NSW) - s 58(2), s 60F, s 60G.

Jaensch v Coffey (1984) 155 CLR 549

Chiaverini v Hockey and Anor (1993) Aust. Torts Reports 81-223

Campbelltown City Council v Mackay (1989) 15 NSWLR 501

John Lysaght Australia Limited v Butfield (unreported, New South Wales Supreme Court, Court of Appeal, 8 December 1993)

HEARING

SYDNEY, 9-11 February 1994
#DATE 4:3:1994

Counsel For The Applicant: Mr A.F. Puckeridge QC

With Mr R. Wilkins Instructed By: Maurice May And Co

Counsel For The Respondent: Mr J. McCarthy QC

With Mr P. Jones Instructed By: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The limitation period for this cause of action be extended until 31 March 1994.

2. The applicant's costs of this motion be applicant's costs in the cause.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FOSTER J In these proceedings, the respondent has relied upon the Limitation Act 1969 (NSW) as a defence to the applicant's claim for injury and damage allegedly occasioned to him by tortious acts of the respondent during the period of the applicant's service with the Royal Australian Airforce at Maralinga, South Australia, in 1957. This notice of motion is brought by the applicant to counter this barrier, by obtaining an extension of the relevant limitation period, so as to enable the action to be brought within time. The applicant relies upon s 58(2) and s 60G of the Limitation Act 1969 as a foundation for the extension sought.

1. The respondent contests the application on the basis that the applicant has failed to bring himself, on the evidence, within the ambit of either section. Furthermore, it is submitted that the applicant has failed to demonstrate that he has a cause of action reasonably capable of being established if the claim is allowed to proceed, in which circumstances it is contended by the respondent that it would not be "just and reasonable" to allow the action to proceed (s 60G(2)). It is convenient to consider this aspect of the case first.

2. Although it is clear from the evidence that the applicant has held, and apparently still holds, the view that he suffered injury as a result of exposure to radiation from atomic blasts at Maralinga, the case relied upon is not one of radiation damage, but of psychiatric damage, specifically the causing of a chronic and disabling anxiety state. The question of the establishment of a cause of action must therefore be approached in terms of the current law relating to the infliction of damage by "nervous shock". The meaning of "nervous shock" is relevantly expounded by Brennan J in Jaensch v Coffey (1984) 155 CLR 549 at 567 where his Honour stated:-
   

"The sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential."

(See also Chiaverini v Hockey and Anor (1993) Aust. Torts Reports 81-223; Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503 and 509E)

1. The evidence indicates that the applicant was sent to Maralinga in February 1957 as a serviceman in the RAAF with the duties of motor transport mechanic. He was then 19 years of age. It is clear that he was aware that the duties he was performing were in the context of the atomic bomb tests being conducted at that time. He asserted that he was frequently required to go into forward areas in order to repair broken down vehicles which were being used by the scientists in preparations before the explosions and investigations after them. He indicated that on one occasion after returning from a forward area, he was checked over by a geiger counter which "went crazy", with the result that he was required to shower four or five times before being "cleared". On another occasion, he recalled, he travelled into a forward area and was approximately 150 metres from the crater made by a previous explosion. The area was easily identifiable as it was glazed over. He walked on the surface which "broke underneath you like fine sheets of glass". These incidents are not relied upon as being, in themselves, productive of nervous shock to the applicant. However, they provide an indication that he was exposed to radiation on one occasion when remedial steps were required, and that he was situated in areas which had been previously affected by radiation. It can be assumed, readily enough, that he was relevantly aware of the danger of exposure to radiation, and had at least a reasonable level of concern about it.

2. In this general context, the applicant witnessed three atomic explosions at Maralinga. The first two were in September 1957. These were described as "tower bursts", being explosions of nuclear devices positioned on specially erected tower structures in the desert. These do not appear to have occasioned him any particular concern. The third explosion that he witnessed was, on his evidence, in a different category. This occurred in October and was a "balloon burst". It appears that this explosion was of considerably greater size than the earlier ones. The applicant says that he was given to understand it was "eight times bigger" and "looked about a quarter of the size of the one that went off over Hiroshima". He said that whereas the first two explosions didn't concern him much, the last one "made me - that sort of made me a little bit nausea, the size of it and the ferocity of it". In relation to this blast, he gave the following, fairly graphic, evidence:-
   

"MR PUCKERIDGE: In what way do you say that that explosion concerns you when you witnessed it? --- Just the devastation of it. The other ones weren't so bad, I don't think, but this one, just the sheer size of it, every bone - although you had your eyes closed and your hands locked in front of your face, on the blast you just see every bone in your hand. it felt like someone a moment later had got an electric radiator, or something like that,and jammed it on the back of your neck. The light, even though, like I said you could see through your fingers, your hand and that, it just felt like someone had pierced your eyes with a spot light. Then when they said, `about face, turn', we turned and we just couldn't look at it, it was so fierce, we had to turn away again. The other ones you could look at, but this one you just couldn't look at it was so fierce. Really, it would sort of give you a very, I don't know, a feeling in your stomach and things like that that you felt very nausea

(sic).

HIS HONOUR: Were your wearing any protective head gear at that time? --- No, no.

What did you have on? --- Just overalls. MR PUCKERIDGE: Anything on your head at all, any - - - ? --- I can't recall cause most time we didn't - when I say I can't recall, we always had a beret, we were supposed to wear a - military says you're supposed to wear a beret everywhere you go or something like that but most of the times out there things were so relaxed and - because there was no, you know, it's not like an ordinary town or anything like that. Our berets would be in our hip pocket. So whether it was on my head or in my hip pocket, I don't know, but I didn't wear, you know, one all the time. Now, you have mentioned being nauseated. Did you - well, in relation to that feeling of nauseation or nausea, did anything happen to you? --- No, not really, I just knew it wasn't right, type of thing, you know.

HIS HONOUR: I do not quite follow what you mean by that and it could be important. You said you knew it was not right. Just elaborate on that for me. in what way did it not feel right? --- Well, we knew this was going to be a big one, the big blast and we'd seen two before it and to see the size of it and the ferocity of it and have to - the other ones we could turn around quite easily and look at it - this one we couldn't, it was so, just like a couple of suns shining right, hitting you right in the face. You just couldn't - and it gave you that sickening feeling - it just, you knew something - what the hell are we playing with - this is wrong, you know. As we say in the movies or something like that you'd see a bomb go up, maybe big enough to blow a car over, you know, and we saw the other two which we thought, you know, they were great, they were big, but this here, that was huge, terrible. And that's the sort of sickening feeling you had. A few of us got together and we spoke about it, you know, it just wasn't on.

Too much to cope with, do you mean, or - - - ? --- Yes, that's right, too much to cope with."

1. There is an indication in the evidence that he and others felt concerned about their exposure to this blast. He said that about 50 of the men sat around and talked about the whole episode after the explosion and "were pretty annoyed about the whole thing". After the explosion he was, he mentioned, required to go into the area where it occurred so he could bring vehicles back. When asked how he felt about doing that, he said "it was one of those things that you were told to do something, you did it and you knew that you've only got a couple of weeks to go to get home so you did it and got the hell out of there."

2. It is not, of course, for the Court to come to any final decision in this application. I am satisfied, however, that there is sufficient material to indicate that the applicant has reasonable prospects of establishing that he received "nervous shock" on the occasion of his witnessing the third blast. Also, it is arguable that his earlier experiences at Maralinga and his general condition of concern about radiation, would have made him more susceptible to shock on the final occasion and more vulnerable to the effects of it.

3. Is there a sufficient indication in the case that the shock caused "a recognisable psychiatric illness"? The evidence in this regard is difficult to evaluate. The applicant left Maralinga shortly after the balloon blast. He was married on 27 December 1958. He remained in the Airforce until 24 January 1961 when his term of six year's service expired. He left the airforce because he wanted a change of life and has, since then, followed diverse occupations. These have consisted of outdoor occupations relating to his mechanical skills. I shall make some reference to these later. Whilst he was in the airforce, he began to experience dreams which were clearly capable of being related to his witnessing of the third atomic blast. These would wake him and he would find it difficult to get back to sleep again. This resulted in a disturbed sleeping pattern. He would wake up and know that he had been dreaming about the bomb. He would be sweating and could "still feel the bomb". He described the type of dream as being quite vivid and as being as follows:-
   

"I used to dream the explosion of the bomb, the last bomb and how all the trees and the birds and all that were bent over and flying around and things like that and I'd wake up with this feeling that there was something wrong with me, that nausea feeling and it's very hard to explain I just felt crook you know. ... I'd be dreaming that I had - I couldn't stand up or something, you know or that I was falling type of thing, and I just couldn't support myself because of you know, in my sleep I didn't know what cancer was or how that affects you or you know, or the bones. All I was worried about is the bones would be going chalky and I couldn't use them, you know, I was going to fall down and I had this - it would worry me and I just couldn't get to sleep again, you know, that sort of thing."

1. The applicant said that he had this type of dream, on average, about once a week, and that they started to occur two or three years after he left Maralinga.

2. I consider that this evidence and other evidence is capable of establishing that the applicant took from aspects of his service in Maralinga, culminating in his exposure to the shock of the third atomic blast, a deep seated fear that he had been affected by radiation and was a potential candidate for cancer. It is at least reasonably arguable that whilst he was still in the airforce, this condition of fear manifested itself in dreams and in disturbed sleep.

3. After he left the airforce, this fear appears to have been fed by a number of events. Whilst working in the Snowy Mountains in 1961, he spoke to an ex-serviceman from Japan, who provided him with some frightening information as to the effect of the Hiroshima atomic bomb explosion upon those unfortunate Japanese people who had been exposed to it. The information he received was that "people who were as close to the bomb on Hiroshima as I was at the bomb at Maralinga were all riddled with cancer or they had this bone problem, bone marrow problem and that and lots of other defects of their body that caused death". He said of this information "that really shook me up a fair bit".

4. His evidence appears to indicate that the receipt of information of this kind would revive or increase his sleeping problems until its effect would subside. It did not cause the problem, but temporarily added to it. The Snowy Mountains informant "sort of put a bit more on top of it when I met him".

5. Thereafter, the applicant encountered a number of physical problems which he, in his mind, attributed to the effects of radiation encountered at Maralinga. In the mid-1960s he began to experience difficulty in control of his bladder, a problem which has persisted up to the present and which, he says, has occasioned him serious social embarrassment. In the early 1970s he began to bleed from the gums and found that his teeth were becoming loose in their sockets. He, in fact, lost all his teeth, which were replaced with dentures. He says that he was advised by the dentist that the loss was not due to any gum disease but he was given no other explanation. He also noticed that his eyesight was deteriorating, which occasioned him difficulty in reading plans when working on buildings. He fairly regularly upgraded his reading glasses.

6. In 1989, he sought expert assistance from Dr Michael English, who operated in June 1990 to remove a large pterygium from the right eye and performed a conjunctival graft. Dr English expressed the view, in a report of 24 September 1993, that pterygiums were a common occurrence in Western Australia, where the applicant had then been working, and were usually considered to be the result principally of sun exposure of the eyes combined with the effects of wind and dust. He said that "on theoretical grounds, exposure to ionising radiation could be considered to be a contributing cause also". However, he knew of no study that could quantify the risk of developing a pterygium "from participation in nuclear testing". It is tolerably clear that the applicant attributes his eye problems to the effect of radiation.

7. The applicant has also developed bleeding per rectum. He also attributes this to the effects of radiation. However, there is no evidence to support this fear. Indeed, there is no evidence to suggest that any of the physical symptoms, to which I have made reference, are attributable to the effects of radiation. The applicant's claim, as I have already indicated, is based simply upon the psychiatric effects of nervous shock received at Maralinga.

8. The evidence also indicates that the applicant has established an unusual lifestyle. His work frequently took him to remote rural areas where he assisted in drilling operations and the like. He says that he became very antisocial, largely because of embarrassment about his bladder problem and, so he asserts, because of an excessive degree of irritation arising from the remarks about it made by friends. He would create scenes on social occasions and thereafter would be loathe to visit the persons whom he had embarrassed. His counsel puts forward a case that he has progressively become a recluse preferring to live away from his family. He has in fact done so, spending very long periods working with aboriginal people in remote settlements where, it appears, he feels more at home than with his family and previous friends.

9. It is a strange story. He no longer works amongst aboriginals but now lives with his wife in remote and spartan circumstances on a very small country property in New South Wales. It would appear that he still entertains fear that he is suffering, and will continue to suffer from, the effects of radiation.

10. The medical evidence provided in the application consists of a report dated 4 May 1993 from Dr Anthony Dinnen, a highly qualified psychiatrist. The report sets out a lengthy history which corresponds, in many significant respects, with the applicant's evidence. Dr Dinnen expresses the opinion that the applicant "is suffering from a chronic anxiety state as a result of his experiences at Maralinga during the atomic testing in 1957".

11. Obviously, the case sought to be presented may well be beset with difficulties. However, I think sufficient has been put forward to support a claim on behalf of the applicant that he was unreasonably exposed to nervous shock from the third atomic blast and that that exposure foreseeably set in train the development of an anxiety state. Should this case ultimately be established at hearing, then the degree to which the respondent should be held liable for the applicant's ensuing psychiatric problems would then be unravelled with the assistance of evidence presented from both sides. I consider, however, that if he is not otherwise statute barred, the applicant has shown the existence of a case capable of being brought.

12. The applicant's claim for an extension of the relevant limitation period is based, in the first instance, upon the provisions added to the Limitation Act 1969 (NSW) by the Limitation (Amendment) Act 1990, namely ss 60F, 60G and cl 4 of Sch 5. The effect of these provisions has been conveniently summarised by Handley JA in John Lysaght Australia Limited v Butfield (unreported, New South Wales Supreme Court, Court of Appeal, 8 December 1993). His Honour said of these provisions:-
    

"The decision of this Court in Electricity Commission v Plumb (1992) 278 NSWLR 364 establishes that, in the case of a pre-1990 injury such as this, a party seeking an extension of a limitation period must establish that he `was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time' (s 60F), the relevant time being `at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted' (s 60I(1)(a)). If these threshold requirements are satisfied the applicant must establish that it is `just and reasonable' that the limitation period be extended (s 60G(2))."

1. In this case, it is unnecessary to identify with precision when the relevant limitation period expired as this would have occurred many years ago. In my view, it is sufficiently demonstrated that it was not until the applicant was examined by Dr Dinnen that he was made aware of the fact that he had any psychiatric injury, as opposed to the physical injuries, from which he considered that he suffered. He was previously unaware of the fact, nature, or extent of the anxiety state which Dr Dinnen diagnosed.

2. Although it will obviously be burdensome for the respondent to be required to deal with this claim, based upon long-ago events at Maralinga there are no precise matters of prejudice relied upon as indicating that it would be unjust and unreasonable to allow this claim to proceed. In all the circumstances, after some hesitation, I have reached the decision that an appropriate order should be made allowing the claim to be brought in time.

3. Accordingly, I order that the limitation period for this cause of action be extended until 31 march 1994. I further order that the applicant's costs of this motion be applicant's costs in the cause.