Duncan v Commonwealth of Australia

[2006] NSWSC 529

CITATION:	Duncan v Commonwealth of Australia [2006] NSWSC 529
HEARING DATE(S):	17/5/06
JUDGMENT DATE :	7 June 2006
JUDGMENT OF:	Bell J at 1
DECISION:	1.Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed; 2. The proceedings may be re-listed by arrangement with my Associate for submissions on costs.
LEGISLATION CITED:	Limitation Act 1969 Limitation of Actions Act 1623 (Imp)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 CRA Ltd v Martignago (1995) 39 NSWLR 13 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 Telstra Corporation v Reay [2002] NSWCA 49
PARTIES:	Gordon Ian Duncan (Applicant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	SC 20186/00
COUNSEL:	J Sharpe (Applicant) R J Burbidge QC / D Brogan (Respondent)
SOLICITORS:	Hollows Solicitors (Applicant) Australian Government Solicitors (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 7 June 2006

20186/00 Gordon Ian Duncan v Commonwealth of Australia

JUDGMENT

1 BELL J: The applicant moves on notice of motion for an order pursuant to s 60G of the Limitation Act 1969 that the cause of action pleaded in his statement of claim filed on 22 May 2000 be extended for such period as the Court determines.

2 The applicant was a naval rating on board HMAS Melbourne on 10 February 1964 at the time of its collision with HMAS Voyager. Arising out of that event he pleads his cause of action in negligence claiming damages for psychiatric injury. His injuries are particularised as follows:

Severe shock;
Severe anxiety and depression;
Panic attacks with claustrophobia;
Intense fear of going to sea;
Difficulties with sleeping, nightmares and flashbacks;
Irritability, fatigue, headaches;
Difficulty in concentrating, making decisions and solving problems;
Mood swings, frustration, isolation and reduced ability to engage in sexual intercourse;
Chronic post-traumatic stress disorder with numerous re-experiencing symptoms, avoidance symptoms and arousal symptoms;
Emotional detachment, insecurity and lack of confidence;
Attempt to medicate himself by heavy use of alcohol and tobacco with consequential impairment of body function;
Hypertension;
Acid reflux.

3 The applicant claims damages, including for economic loss and the loss of the chance to have qualified for Defence Force Retirement Benefit entitlements.

4 The applicant was born on 18 April 1947. He was aged sixteen years at the date of the collision. The limitation period under the Limitation of Actions Act 1623 (Imp) that applied to his cause of action expired on 18 April 1971.

5 The applicant must bring himself within the threshold requirements of s 60I(1) of the Act before the Court may make the order that is sought. Section 60I(1) provides as follows:

(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 any 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).

6 Section 60G(2) is in these terms:

If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

7 The applicant swore a number of affidavits in support of his motion. In his first affidavit, which was sworn on 11 August 2000, he outlines the background to his claim. He describes an unremarkable childhood. He enlisted as a junior recruit in the Royal Australian Navy (the Navy) on 7 January 1963 at the age of 15 years and eight months. He underwent his initial training at HMAS Leeuwin in Western Australia. At the completion of this he underwent basic aircraft training at HMAS Albatross prior to joining the Melbourne in February 1964 for his sea training.

8 On the evening of the collision the applicant was undertaking his first duty watch. He was designated as port lookout and because this was the first time he had done a duty watch he was shown to his post by a chief petty officer who instructed him in his duties. He took up his position at about 8:50 pm. Before leaving him the chief petty officer pointed out the Voyager, which was then off Melbourne’s starboard bow with her running lights clearly visible. The applicant says that he had relieved the port lookout for not more than sixty seconds prior to the collision. As he made observations dead ahead, he heard the order to put the engines to half astern and shortly after this to full astern. He saw the Voyager closing on Melbourne, just off the starboard bow. He could see the whole of the port side of Voyager. He saw Melbourne’s bows come down and slice through the Voyager and he felt the shudder throughout the ship. He saw a huge fireball, screeching of metal, lots of steam and the sound of rushing water. He watched the Voyager’s bow section pass down the port side of Melbourne and he recalled thinking “there’s men in there”.

9 The applicant says that he was in fear for his life. He assumed that the Melbourne would also sink. In his first affidavit the applicant said that he experienced feelings of guilt over the fact that he had not reported Voyager’s approach, even though she had been on the starboard side of the ship. He was aware from his training that a lookout should report all that he sees to the officer of the watch. In oral evidence, the applicant explained that his feelings of guilt were not associated with any belief that had he reported his observations the disaster might have been averted. That thought had not occurred to him.

10 The applicant remained at his position and watched the rescue operations. Around 3:00 am the following morning the chief petty officer returned and was the first person to whom the applicant spoke after the collision. The applicant said to him, “I have been here for six hours. My vision is no longer suitable for a lookout after that time. Is it possible for a relief?” To which the Chief Petty Officer replied, “On such a night we all have to do a bit extra”. The applicant felt guilty at having appeared to shirk extra duty on such an occasion.

11 The applicant states that the crew of the Melbourne were instructed not to speak about the collision and that the attitude of senior ratings and older members of the ship’s company was that this was part and parcel of Navy life and they should just “get pissed and forget” (paragraph 13).

12 The applicant says that he experienced a change of attitude towards the Navy following the collision. He lost his trust in leadership. He commenced drinking heavily. He had not had disciplinary problems prior to the collision and had been a motivated rating. He started getting into disciplinary problems after the collision. He was charged with being absent without leave on 3 August 1964. He was posted to HMAS Cerberus in Victoria for training as an electrician and absented himself from that establishment without leave for a period of 30 days.

13 Naval medical records confirm that on 3 July 1964 the applicant was seen by a medical officer on board the Melbourne and that he was complaining of shortness of breath. He had no history of this condition. In oral evidence the applicant said that the bouts of shortness of breath came on particularly when he was below decks.

14 After the applicant completed an electrical training course he was posted to Albatross for training in aircraft electronics. Ultimately, he was assigned to a frontline squadron, which required him to return to sea on board the Melbourne. He had tours of duty at sea in 1966, 1967 and 1969. In 1969 he had sought an exchange with another rating in order to avoid further sea duty. This was refused. He says that his level of discomfort at sea increased with each tour of duty. He had developed a fear of being confined below decks. Generally he is uncomfortable in confined spaces and suffers from claustrophobia.

15 While the applicant was based at Albatross in March 1966 he was seen by Dr Candy. Dr Candy recorded:

Referred by D.O [Divisional Officer] because sailor had stated that the Navy was driving him “mad”. In interview sailor said he was completely fed up with the Navy and that he was not getting anywhere. Interview failed to reveal any true mental of physical illness. Sailor informed that there were no medical grounds for discharge to which he retorted that he would find other means.

16 The applicant acknowledged that he had sought a referral to Dr Candy with a view to obtaining medical support for his discharge from the Navy. He agreed that he knew that he did not have any physical condition that would justify discharge. He acknowledged that he had told Dr Candy that the Navy was driving him mad. He explained that by this he had meant that he felt he did not fit in with the Navy. He did not agree that he considered his problem to amount to a mental condition. He recalled saying words to the effect that he would find other means of obtaining a discharge. This was said in an angry exchange at the conclusion of the consultation. He agreed that he had in mind seeking a medical opinion from someone who would be more sympathetic to his desire for discharge. He did not in fact seek a further medical assessment or advice at that time.

17 The applicant married in March 1967. He and his wife are still together. They have two adult sons.

18 The applicant was serving on board the Melbourne on 3 June 1969 when she collided with, and sank, the USS Frank E Evans. The applicant says that his problems intensified following this collision and that he realised that he was becoming quite intolerable to his wife. He had been married for two years, they had one child and his wife was pregnant with their second child. He says that he was not sleeping well and that he suffered from nightmares and anxiety attacks. He describes his drinking as an ongoing, serious problem. He continued to have disciplinary problems and had been assigned to a storeman’s job at Albatross. He consulted a doctor at Albatross, but considered that he had not received any sympathy or help from him. The doctor suggested that he visit the chaplain. This did not assist him.

19 In May 1970 the applicant was directed to see Dr McGeorge, a psychiatrist at the Balmoral Naval Hospital. He described his interview with Dr McGeorge as being brief. In his first affidavit the applicant said this:

Eventually, I believe, Dr McGeorge told me I was a paranoid schizophrenic with bouts of manic depression. He prescribed medication and recommended a discharge from the Service. I was not offered any form of assistance or counselling. I felt I was simply being pushed along the medical chain until the Navy solved its problems by disposing of me. I was formally discharged on the 16th July, 1970 (paragraph 36).

20 The applicant states that since his discharge from the Navy he has moved from job to job, rarely accepting any responsibility. He has suffered from indigestion and dyspepsia necessitating numerous tests and referral to a gastroenterologist without any clear diagnosis of the cause. He says that he has continued to drink alcohol to excess and describes himself and his wife as having led a socially isolated existence.

21 The applicant’s employment history following his discharge from the Navy is set out in his affidavit of 16 May 2006. He worked as a salesman with Waltons department store, Nowra. After a short time he took up employment with MLC Insurance working as a salesman in South Australia. After about 18 months he moved to South Australian Battery Makers where he worked as a salesman. He left this employ after 12 months and worked as a process worker with GMH. After this he had a short period of employment as a car salesman. In mid-1975 he moved to Port Kembla and commenced working for BHP. He remained with BHP until his retrenchment in December 1982. He was unemployed for about twelve months. During this time he undertook a course of study in computer programming. He then obtained employment as a computer programmer with John Lysaghts, Port Kembla. Thereafter, he resumed employment as a clerical worker with BHP. He found work increasingly stressful and finally gave it up in 1996. He has not been employed since.

22 The applicant states that at the time of his discharge he was not aware that he was suffering from post-traumatic stress disorder or any trauma as a result of the collision. He asserts that with hindsight he was aware that his attitude to naval service changed dramatically after the collision. He acknowledged that his behavioural and health problems started after the collision. In his first affidavit he said this:

I was not aware that these difficulties could be explained by way of a psychiatric disorder caused by my experiences on the night of the collision. I did not begin to suspect that this may be a cause until during December 1998 when I heard another Melbourne survivor and his solicitor being interviewed on television. I recognise so many of his problems as being similar to mine. I put things together and came to realise that I might also be suffering from post-traumatic stress disorder. Later that year I first consulted the solicitor I saw on television and asked if he might be able to help me. I first told my doctor that I had been on the Melbourne early in 1999 when I attended on him to obtain my medical records at the request of my solicitor. I only learned for certain that my condition had been diagnosed as post-traumatic stress disorder after consulting Mr Liam Guilfoyle in October and November last year. (Paragraph 40).

23 A report of Professor McFarlane, a psychiatrist, dated 27 November 2001 records an assessment of the applicant based on an interview conducted on 1 August 2001. At the time of the interview Professor McFarlane had access to the applicant’s naval records. Professor McFarlane expresses the opinion that the applicant suffers from post-traumatic stress disorder (PTSD) according to DSM IV criteria. Professor McFarlane noted the applicant’s history of intermittent nightmares and commented that he demonstrates a pattern of social withdrawal and emotional numbing together with foreshortened sense of the future. Professor McFarlane observed:

He also has a history indicative of chronic low grade depression associated with suicidal thoughts and loss of motivation. This pattern of symptoms is indicative of dysthymia as he does not have periods of more severe depression indicative of a major depressive disorder. However, the symptom severity may have reached this level at the time of his discharge from the RAN. He also has situational panic and associated phobic avoidance. In combination with his naval record it would seem that he has probably had panic attacks with hyperventilation and associated agoraphobia. He also has a long history of alcohol abuse. This diagnosis is made on the basis of there being adverse social consequences of his drinking, namely, interference with his employment.

Professor McFarlane comments that the disaster had been particularly distressing for the applicant given his lack of experience as a seaman on the night and that, unlike many other seamen on board the Melbourne, he had directly watched the event and perceived himself to be a responsible participant. Professor McFarlane commented on the fact that the applicant’s naval medical record included the existence of significant symptoms of hyperventilation and tachycardia within five months of the incident.

24 Professor McFarlane also observed:

It appears that he had little comprehension of the cause of his psychological symptoms at that time and that he was given minimal or no treatment. On leaving the Service he was employed in a range of positions that ultimately avoided responsibility. It was then he found his way back to New South Wales where he began to work for BHP. He demonstrated particularly at the end of his working life he felt very stressed. He had suffered from ongoing anxiety and depression during the course of his career. It would seem that in the latter period of employment with BHP he did manage to master the newly introduced computer systems. However, as is often the case with a post-traumatic stress disorder, it seems that his condition fluctuated in severity.
Thus, the critical issue in the onset of his condition was the horror of the experience and the related traumatic memory structure that was laid down. Progressively he built a lifestyle that minimised his challenging of the associated distress. It appears he used alcohol as a form of health medication to manage his difficulties.

25 In addition to the expert opinion of Professor McFarlane, the applicant’s claim is supported by the psychological reports of Associate Professor David De L Horne and Liam Guilfoyle.

26 In his second affidavit, which was sworn on 22 May 2002, the applicant stated that on the occasions when he saw naval doctors he had not mentioned the collision to them. He had not associated the feelings that he had about the Navy and the changes in his mood with his experience of the collision. It was not until he commenced sessions with the psychologist Liam Guilfoyle in 1999 that he became aware that the problems he had experienced were connected with the collision. When he attended the doctor on 3 July 1964 he had no idea of the cause of his shortness of breath and the doctor had not suggested a cause to him.

27 Among the documents annexed to the applicant’s first affidavit are naval medical records relating to his psychiatric referral in May 1970. From these it appears that the applicant was first seen by a Surgeon Lieutenant Haskett around March 1970 and that at that time he was complaining that the Navy was wrecking his life and his marriage. He was advised to see his divisional officer to see if any adjustment to his employment could help. He had been seen by Surgeon Lieutenant Haskett on two occasions thereafter. Surgeon Lieutenant Haskett’s attendance notes record:

He has completely rejected the Navy and states that this is making him withdrawn and has caused his marriage to deteriorate. States that he cannot discuss the problems with his wife and says she does not understand him.

Surgeon Lieutenant Haskett concluded that the applicant was suffering from “a situational depression and I have doubts as to whether his personality will permit him to adjust”. The applicant was referred to a psychiatrist for assessment.

28 The applicant saw Dr McGeorge on 5 May 1970. The attendance notes suggest that he also saw, Dr John Cotsell, on that day. The applicant had no recollection of Dr Cotsell. The attendance note records:

Looks depressed and sounds depressed. Says he is at the end of his tether and has wisely sought advice. Appetite not the best and does not sleep too well. Married three years and has one son. Knows he could get a job if he went outside, but has made no definite plans – thinks he would return to his home State, SA. I agree with Surge. Lt. Haskett that it seems likely that his condition will continue to deteriorate as long as he remains in the Service. Would Dr McGeorge please advise.

John Cotsell

Feels he cannot take any more. He has become depressed and anxious. He cannot stand the life, feels despondent all day. This attitude has affected his personal life as well with loss of appetite and some insomnia. He is obviously not trying to make out a case for himself and is genuinely troubled about his mental state.
I recommend his discharge for anxiety depression which will become accentuated as long as he remains in the Service.
In the meantime I suggest Tofranil 25 mg tos pending FMS [final medical survey].

John McGeorge

29 The applicant had a clear recall of his consultation with Dr McGeorge. He said it was short and that he had been asked four questions, including whether he was eating properly and whether he was sleeping well, to which he had responded in the negative. The applicant agreed that Dr McGeorge had given him a diagnosis, but he did not recall it as a diagnosis of anxiety/depression. He did not believe that there had been discussion of depression. He believed that he would have described himself as sad, as distinct from depressed.

30 The applicant’s final medical survey report records that he suffered from depression, which was considered to be constitutional and not due to naval service, nor aggravated by naval service. The report records the assessment of the applicant’s incapacity for civil employment at 25 percent. There is no evidence that the applicant was aware of the contents of the final medical survey. The applicant said that he was not aware that he had been certified as 25 percent unfit for civilian duties. His attention was directed to a letter dated 10 September 1970 signed by the Manager, Operations Branch:

Dear Sir,
The Board has determined your percentage of incapacity in relation to civil employment and has classified you as class “C” invalidity which entitles you to a refund of contributions of $191.22 plus a gratuity of $700.

The applicant had no recall of receiving the letter, although he acknowledged that in the ordinary course he would have done so. He maintained that he was unaware that he had been assessed as incapacitated to any degree for civilian employment. I accepted him.

31 In the respondent’s submission, the applicant has failed to bring himself within s 60I(1)(a)(i), (ii) or (iii).

32 Personal injury, for the purposes of s 60(1)(a) of the Act, is defined in s 11(1) as including “any impairment of the physical or mental condition of a person”.

33 In considering whether the applicant has established that he did not know that personal injury had been suffered or was unaware of the nature or extent of it, his assertion in his affidavit that he did not understand that he was suffering from a condition which is described as post-traumatic stress disorder is not determinative: CRA Ltd v Martignago (1995) 39 NSWLR 13 per Clarke JA (with whose judgment the other members of the Court concurred) at 20. What is necessary to resolve is whether the plaintiff has established that he did not know that his various symptoms constituted a recognisable psychiatric illness: Commonwealth of Australia v Smith [2005] NSWCA 478 per Handley JA at [16].

34 Mr Burbidge QC, who appeared with Mr Brogan on behalf of the respondent, pointed to the evidence not only of the applicant’s symptoms, including anxiety, stress and nightmares, but to the circumstance that he had sought a discharge on medical grounds in relation to a condition that was related to impairment of his mental condition. He had been discharged from the Navy with a diagnosis that he was suffering from a psychiatric condition, albeit one that he believed to be somewhat more serious than was the case. In his submission, the applicant had failed to establish his lack of awareness of all three matters under s 60I(1)(a)(i) – (iii).

35 In cross-examination the applicant acknowledged that he had recognised that Dr McGeorge told him at the time that he had something, which amounted to a medical disability (T 50.56). He gave this evidence:

Q. You knew at that stage he was prepared to certify you had a mental condition such that you ought not to continue in the Navy?
A. Yes. I’ve probably got to say at the time that I didn’t look upon it as a mental condition, I can see now that it is, but I didn’t at the time.
…
Q. And even though you were 18 years of age at that time, you had heard of those conditions, manic depression or paranoid schizophrenia?
A. Yes.
Q. You knew at that stage he was prepared to certify to the existence of these disabilities and that that was your ticket out of the Navy?
A. Yes.
Q. In fact, he went on to say – I am looking back at the document – “I recommend his discharge for anxiety depression, which will become exacerbated, i.e. made worse as long as he remains in the Service” – did he say something to that effect to you, that it was going to get worse?
A. I don’t recollect him saying that it was going to get worse.
Q. If you stayed in the Navy?
A. I don’t recollect him saying it was going to get worse. (T 51).

36 The applicant said he was aware that his discharge was approved on the basis that he was “permanently unsuitable for Navy service”.

37 The applicant was asked if between May 1970, when he saw Dr McGeorge, and the date when he was shown Dr McGeorge’s attendance note (being a date after the commencement of the present proceedings) he understood that he had paranoid schizophrenia with bouts of manic depression. He responded:

I thought that I had it at the time, I did not think that I still had it. I had problems but. (T 54.44-45).

38 As at May 1970, when he saw Dr McGeorge, the applicant knew that he had been diagnosed as suffering from a psychiatric illness. It is not clear that he understood that diagnosis to relate to the symptoms that he had experienced in the period following the collision and that have continued throughout his life, including of stress, anxiety and nightmares. I took him to be saying that he understood the diagnosis that Dr McGeorge made to be one that related to his suitability for naval life. This seemed to me to find support in the circumstance that he had not continued with the medication that had been prescribed for him by Dr McGeorge after his discharge, nor had he consulted a general practitioner or other medical practitioner in relation to the diagnosis.

39 In these circumstances, notwithstanding that the applicant believed, wrongly, Dr McGeorge had diagnosed him as a paranoid schizophrenic and/or suffering from manic depression, I am inclined to the view that he did not know that he had suffered personal injury and that he was unaware of the nature or extent of it for the purposes of s 60I(1)(a)(i) and (ii).

40 In the event that I am wrong in so concluding, I turn to a consideration of whether the applicant has satisfied me that he was unaware at the expiration of the limitation period of the connection between the injury and the defendant’s act or omission, being the negligent failure of officers of the Melbourne and/or the Voyager that caused the collision.

41 In Mr Burbidge’s submission it was difficult to accept that a person would not make a link between nightmares experienced in the immediate aftermath of the collision and which were continuing, and the other symptoms of which the applicant complained only after the collision, and the fact of the collision.

42 The applicant was cross-examined about his desire to get out of the Navy. In this context he was asked:

Q. You were continuing to have the problems that we discussed at an earlier time: nightmares, lots of alcohol, stress, unhappy, loss of ambition all those sorts of things, all those factors were still present?
A. Yes.
Q. And those you attributed, did you, to your experience in the Navy?
A. My life in the Navy, yes.
Q. As far as dreams are concerned, they would have to, I suppose go straight back to the collision you witnessed, and which occasionally you dreamt about?
A. Yes, but I never attributed it to the collision.
Q. If you had a nightmare if involved a threat to you associated with collision, that surely would have been apparent to you …
A. No, it wasn’t, no.
Q. You did have such nightmares, did you?
A. Yes.
Q. Those nightmares in some ways they included the possibility that you were under threat because of the possibility or dreaming of a collision between the two vessels, one of which you were on?
A. Not necessarily those two vessels.
Q. Just the idea you were on a vessel and you were at risk?
A. Yes.
Q. And indeed, you told Mr Guilfoyle, it would seem “he began having nightmares about the collision and found this very distressing”. Is that an accurate statement of what was occurring?
A. Yes.
Q. About this time, in the ‘60’s?
A. Yes.
Q. Could you give us some indication how often you were having nightmares about the collision?
A. Out of all the nightmares, how many were regarding the collision, no.
Q. Was it a regular nightmare.
A. Irregular nightmares, not the same nightmare time and time again necessarily.
Q. But often with the theme, as I follow, that you were at risk of injury through collision of naval vessels of one kind or another?
A. Yes.
Q. When you told Mr Guilfoyle that you found that those nightmares were very distressing, what was the nature of the distress that you were feeling?
A. Well, waking up, nightmare, I would wake up gasping for air, sweating and be afraid to go back to sleep in case there was a recurrence of that.
Q. You wouldn’t think that was normal though, I suppose?
A. Not that it wasn’t normal …
Q. That you have them three or four times a week?
A. Then again, I mightn’t have any for weeks.

The applicant went on to say that he had not mentioned the phenomenon of the nightmares to any medical practitioner, nor had he discussed them with his mates.

43 No naval medical officer appears to have made the link between the applicant’s medical condition and the circumstance that he had been a member of the Melbourne’s company at the time of the collision. It is plain that by 1966, when the applicant saw Lieutenant Haskett, he wanted to get out of the Navy and considered that obtaining medical support may assist him. It seems to me that had he associated his intermittent nightmares and other symptoms with his experience of the collision, one might have expected him to refer to the matter in the course of his endeavours to obtain a discharge.

44 The completion of the applicant’s medical statement on discharge is to my mind supportive of acceptance of his recall that he did not consider himself to be suffering from any mental condition that was connected to his experience of the collision. The pro forma medical statement on discharge signed by the applicant included the following questions and answers:

· Do you suffer from any disabilities at present?

If so, record details.
No

· Have you suffered from any disabilities during Service?

If so, list them together with approximate of occurrence and where serving at the time.
No

· Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service?

If so, record your reasons.
No

· Have you made any claim under the repatriation or CEC Acts and have you been granted any pension or compensation?

If so, record details.
No

45 I considered the applicant to be a truthful witness. I accepted him when he said that he had not made the association between his various symptoms and his experience of the collision.

46 In the event that the applicant satisfied the Court that he was unaware of one or more of the matters in subsection (1)(a)(i) – (iii), Mr Burbidge submitted that his application must nonetheless fail because it was not made within three years after he ought to have become aware of all three matters listed in paragraph (a)(i) – (iii). In support of this submission Mr Burbidge pointed to the circumstance that in mid-1970 the applicant was a married man aged twenty-three years with family responsibilities. After his discharge he had continued to suffer symptoms of anxiety, stress and periodic nightmares, which had an adverse affect on his family life and employment. He understood that he had been diagnosed as suffering from paranoid schizophrenia and/or manic depression. In these circumstances, Mr Burbidge submitted that the applicant ought have sought out appropriate psychiatric treatment and, had he done so, he would have become aware of the link between his mental condition and his experience of the collision.

47 In considering whether the applicant ought to have become aware of the matters in s 60I(1)(a)(i) - (iii) I have regard to the further report of Professor McFarlane dated 21 June 2002. Professor McFarlane comments on the result of a study of fire fighters that he conducted following the 1983 Ash Wednesday bushfires. He noted that in this population a striking observation was how many individuals had little conceptual understanding of the nature of their suffering. This was so, despite the fact that they had nightmares and were intensely preoccupied by their experience in the fire. Rather, Professor McFarlane observes, they saw the latter as being part of normal distress and a normal consequence of having been exposed to such an experience. Professor McFarlane observes that only a minority of people who meet diagnostic criteria for mental disorders seek appropriate help. In addressing the applicant’s case he says:

Although Mr Duncan began developing symptoms in the aftermaths of the HMAS Melbourne/Voyager collision, what occurred was a pattern of repeated insubordination. The message that he would have been conveyed was that he was disobedient and that he had major problems with his attitude. Whilst this is not explicitly stated, it is easy to imagine he would have believed this was attributed to his temperament or personality.
Avoidance is a central part of post-traumatic stress disorder. Therefore, it is highly probable this element of the disorder, both prevented his description of his fears and internal preoccupations to himself as well as to his medical attendants.

Professor McFarlane considered a letter by the applicant’s general practitioner, Dr Talib, dated 25 May 1999 to be particularly relevant.

48 Dr Talib commented that he had known the applicant for a very long time. It appears that he commenced seeing him around the mid-1970’s, after the applicant moved to Warilla and commenced employment with BHP. Dr Talib reports:

I started to get to know him when he came down to the south coast and worked at the steel works. He never said much at first. He was always suspicious. However, with the passing of time, I got to know this man who was really very gentle and considerate. I could not, however, fathom his psychological problems. He had a lot of sleeping problems. He complained of palpitations. His blood pressure would swing from consultation to consultation. He had severe abdominal pains. Sometimes he would be morbidly depressed and at other times he would be extremely anxious. Unfortunately I did not know about his experience of 10 February 1964 and he did not tell me about such things until quite recently. Things are starting to make sense.

49 The applicant acknowledged that he was aware he was a person who “had problems”. Plainly so much was evident over many years to his general practitioner. Nonetheless, Dr Talib does not appear to have referred the applicant for any psychiatric treatment.

50 In assessing whether the applicant “ought to have become aware” of his injury and ought to have made the connection between that injury and his experience of the collision, it is necessary to have regard to the qualities of the applicant and not those of the hypothetical reasonable man: Commonwealth of Australia v Smith per Santow JA (with whom Handley JA agreed) at [103] citing Telstra Corporation v Reay [2002] NSWCA 49.

51 At the time of the collision the applicant was a very junior naval rating who was instructed not to talk about the collision and who was given to understand that he should put the matter behind him. Taking into account Professor McFarlane’s report of June 2002, that avoidance is a central part of post-traumatic stress disorder and that it is highly probable that this element of the disorder both prevented description of his internal preoccupations to himself and to his doctors and having regard to the contents of Dr Talib’s letter, I am not of the view that the applicant ought to have been aware of the three matters in s 60I(1)(a)(i) – (iii).

52 It remains for the applicant to satisfy the Court that it is just and reasonable that the limitation period for his cause of action be extended. The application should be refused if to grant it would result in significant prejudice to the respondent: Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128.

53 Mr Burbidge informed the Court that the respondent did not identify particular prejudice in this case beyond that which might be thought to arise in a case involving events that occurred so many years ago. In this respect I note the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 at 551.

54 The applicant has furnished details of his employment history in the period following his discharge from the Navy. In an affidavit sworn on 16 May 2006 he has provided details of his earnings from the date of discharge until he ceased employment in July 1996. He has produced copies of a number of financial records.

55 I consider that the applicant’s claim for economic loss is one that can be adequately assessed and tested.

56 Proof of any psychiatric injury and its cause will depend on expert evidence, which is significantly dependent on the history. There is material available to the respondent as to the applicant’s service in the years following the collision. He has obtained from the respondent naval records, including his medical records and the records relating to his dscharge. His Certificate of Service and the questionnaire he completed for submission to the Royal Commission into the loss of HMAS Voyager are available.

57 David Forster, the applicant’s solicitor, in an affidavit sworn on 20 February 2003 states that Dr Cotsell is available to give evidence concerning the contents of his clinical notes.

58 The applicant’s parents, Barbara and Patrick Duncan, swore affidavits describing the applicant’s character and behaviour prior to and after the collision. The applicant’s father is now deceased, but his mother is available to give evidence. Given the applicant’s age at the date of the collision, it may be that little turns on evidence of his pre-collision character and conduct.

59 Witnesses are available who can comment on the applicant’s behaviour during the period of his naval service. In his affidavit of 20 February 2003 Mr Forster says that he has spoken with Warwick Burns, a member of the crew of the Melbourne at the time of the collision, and who is able to give evidence concerning the applicant’s character and conduct prior to and following the collision. The particulars of two other crew members of the Melbourne who knew the applicant are also supplied in the affidavit. Mr Forster supplies details of two of the applicant’s naval supervisors. He says that Commander Bate, the officer of the watch, is available to give evidence concerning the collision, the role of the applicant and the applicant’s promotional prospects in the Navy.

60 The names of a number of persons who are able to comment on the applicant in the period following his discharge from the Navy, at least from 1980 until he ceased employment, have been provided to the respondent. These include a number of persons who supervised the applicant during his employment with BHP.

61 It will not be in issue at the trial that the collision arose as the result of negligent acts or omissions for which the respondent is liable or that the applicant was on board the Melbourne at the time of it. The respondent has not lost evidence which is likely to significantly bear upon the determination of the issues that will be live at the trial, namely whether the applicant has suffered injury and, if so, causation and damages. I consider that a fair trial of the applicant’s claim may still be held and that in these circumstances it is just and reasonable to grant the extension of time that is sought.

ORDERS

1.Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the applicant’s statement of claim was filed.

2. The proceedings may be re-listed by arrangement with my Associate for submissions on costs.

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