Heigh v Commonwealth of Australia

[1999] FCA 1283

FEDERAL COURT OF AUSTRALIA

Heigh v Commonwealth of Australia [1999] FCA 1283

WARREN ANDREW HEIGH v COMMONWEALTH OF AUSTRALIA
NG 529 OF 1994

JUDGE:         WHITLAM J
DATE:           15 SEPTEMBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 529 OF 1994

BETWEEN:	WARREN ANDREW HEIGH Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	WHITLAM J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The limitation period for the causes of action in the statement of claim is extended until 30 July 1994.

2.Paragraphs 6 and 7 of the amended defence are struck out.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 529 OF 1994

BETWEEN:	WARREN ANDREW HEIGH Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	WHITLAM J
DATE:	15 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order of extension under s 60G of the Limitation Act 1969 (NSW) (“the Act”).

2. The applicant, Warren Heigh, was first diagnosed as suffering from post traumatic stress disorder (“PTSD”) on 26 July 1994.  He commenced this action three days later on 29 July 1994.  Since there seems to be little contest for the purposes of this application that there is a serious question to be tried that Mr Heigh does suffer from PTSD, and since that is the only injury he claims that would justify bringing the action, his case for an extension might have been expected to be fairly straightforward, requiring attention to be given only to the issue of prejudice to the respondent (“the Commonwealth”) occasioned by the delay.

3. Mr Heigh is a sailor in the Australian Navy (“the Navy”).  His claim relates to an accident at sea on the vessel HMAS Stalwart on 22 October 1985.  It is common ground that the limitation period for his causes of action expired six years later on 22 October 1991.  Mr Heigh was based in Sydney at the time of the incident, which involved a gas leak as a result of which three sailors died.  This was a real disaster, and there is not the slightest doubt that Mr Heigh was exposed in the course of this drama to a traumatic event that might produce PTSD.

4. The complicating factor in the present application springs from Mr Heigh’s friendship and long-standing acquaintanceship with another victim of the Stalwart incident, Mark Brandon, who is also claiming against the Commonwealth for PTSD connected with that incident.  Mr Heigh joined the Navy on 15 September 1980 just after he turned eighteen.  He first met Mr Brandon in 1983 when they were both based at HMAS Cerberus in Western Port, Victoria.  After the Stalwart incident, in April 1986, Mr Heigh lodged a claim for compensation from the Commonwealth for hydrogen sulphide poisoning, dizziness and headaches.  He also lodged a claim for a service pension with the Department of Veteran’s Affairs (“DVA”) on account of “nervous condition-phobia” as well as the poisoning.  Mr Brandon made similar claims, and each of them provided the other with a witness statement to support the claims made.  On 27 August 1996 Mr Heigh was awarded compensation for the hydrogen sulphide poisoning.  But on 13 February 1989 the DVA notified him that his claim for a pension was rejected on the basis that he was “not now” suffering from hydrogen sulphide poisoning and that he had no pathological psychiatric disorder.  The reasons for decision of the Repatriation Commissioner’s delegate stated that a psychiatrist who examined Mr Heigh on  8 October 1986 found no psychiatric disorder but noted delayed resolution of a bereavement reaction.  In cross-examination, Mr Heigh could not recall receiving a copy of that decision but did recall seeing a DVA doctor at that time.

5. At the end of 1986 Mr Heigh was posted to Melbourne.  He saw Mr Brandon only occasionally after that at soccer games until 1990 when he was posted to the HMAS Nirimba establishment in Sydney where Mr Brandon attended a training course for several months.  In May 1993 Mr Heigh was transferred to HMAS Coonawarra in Darwin where he again resumed acquaintanceship with Mr Brandon when the latter was posted there at the end of 1993.

6. Mr Heigh said that since the Stalwart incident he has continued to suffer tenseness, anger and stress, to experience anger and shame and, since the end of 1986, nocturnal cramps and nightmares.  Since 1989 he has noticed increasing forgetfulness.  He has been since 1985 easily irritated and lacking in motivation and interest in his family and life.  Yet Mr Heigh did not seek medical assistance for these symptoms which he attributed to the events in 1985.  He said that he regarded the subject as “taboo” and struggled on because he was worried about his future in the Navy if his emotional problems became known.

7. In 1994 Mr Heigh decided to seek help.  He said that a counsellor on a Navy drug and alcohol course suggested that he see a psychiatrist.  Counsel for the Commonwealth was, to put it mildly, extremely sceptical about this supposed advice ever being given.  However, Mr Heigh was not shaken and, for what it is worth, I accept that he did receive such advice.

8. Mr Heigh did know by June 1994 at the latest that Mr Brandon was contemplating legal action for the injury suffered in the Stalwart incident.  He had been contacted by Mr Brandon’s solicitor, William Szekely, to give evidence in Mr Brandon’s case.  He then asked Mr Szekely to advise him on the prospect of suing the Commonwealth.  For this purpose he made a statement dated 13 July 1994.  Next, he attended the sick bay at HMAS Coonawarra and asked to be referred to a Darwin psychologist, Mr Ted Milliken, whom he knew Mr Brandon was seeing.  That was how Mr Heigh came to present himself to Dr Duncan Wallace who, unbeknown to him, was a Sydney psychiatrist performing locum duties as a Naval Reserve officer.  Dr Wallace diagnosed PTSD and referred him to Mr Milliken.

9. Mr Heigh came under the care of Mr Milliken, who has given evidence on this application, as has Dr Wallace.  Mr Milliken agreed that, when Mr Heigh first came to see him, Mr Heigh himself knew that he had a psychological problem.  Mr Milliken was cross-examined about the subjective nature of the symptoms of PTSD.  It was even put to him that Mr Heigh might be a person familiar with the diagnostic criteria for PTSD as defined by the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.  (This suggestion was not put directly to Mr Heigh.)  The object of this line of cross-examination was not apparent to me.  In addition to the evidence of Dr Wallace and Mr Milliken, the evidence before me includes a recent report from another Sydney psychiatrist, Dr Christopher Canaris.  The universal opinion is that Mr Heigh is suffering from chronic PTSD.  This opinion appears to be based on careful clinical and medico-legal assessments of his symptoms.

10. Counsel for the Commonwealth framed his opposition to the making of an extension order by reference to considerations he termed “credit” and “prejudice”. Presumably the first of those matters is meant to affect the threshold question under s 60I(1) of the Act, namely Mr Heigh’s awareness of the “nature or extent” of his injury. Mr Heigh worked in the Navy as a stoker and now as a driver. I cannot imagine how it can be suggested that he could know, in the absence of any professional advice, the likely consequences of the symptoms he was suffering. Further, although he had no recollection of the decision, he had been informed in 1986 or 1987 that he did not have a psychiatric disorder. The arousal symptoms would not by themselves give him an expectation of what lay ahead. This is not a “question of degree”. Nor would the mere label PTSD mean much by itself. It does not matter if Mr Heigh started to appreciate that he may have a psychiatric disorder as a result of conversations with a Navy counsellor or with Mr Brandon or with Mr Szekely. There is nothing unnatural or suspicious about a prospective plaintiff consulting both a lawyer and a doctor about an injury which may be compensable. The fact is that he was not aware of any of these matters touching the extent of his injury until 1994. Nor would have a reasonable man in his position been aware of them. Notice of the present application was filed on 12 September 1994. I am satisfied that the requirements of s 60I(1) of the Act have been met.

11. The discretion to grant an extension under s 60G of the Act is thus enlivened. Mr Heigh bears the onus of showing that the justice of the case requires the discretion to be exercised in his favour, and to do so he must prove that an extension beyond the limitation period would not result in significant prejudice to the Commonwealth: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The Commonwealth relies on the presumption of prejudice. It has adduced no evidence to show actual prejudice. Indeed, Mr Heigh’s historical record (exhibit 6) tendered in the Commonwealth’s case shows the kind of extensive records available in the Navy. The records will reveal much about Mr Heigh that he could not possibly recall. It is true that the component parts of PTSD are mostly subjective complaints voiced by the sufferer and his family. In this case it may be anticipated that evidence will be adduced from Mr Heigh’s wife and that this will include distressing episodes, including his difficult relationship with their epileptic child. However, the Commonwealth is far better placed than most employers to defend a claim for PTSD suffered by an employee. Whilst liability has not been admitted, I would expect the real battle at trial to concentrate on quantification of Mr Heigh’s damages. I perceive no live causation issue. The Commonwealth has at hand details of promotions and re-enlistment, which equip it to meet claims for economic loss. Bearing in mind all the strictures contained in Taylor, I consider that Mr Heigh has established that the presumption of prejudice occasioned by the fact of delay is not significant prejudice so as to deprive the Commonwealth of a chance of a fair trial.

1. The period of limitation in respect of Mr Heigh’s causes of action will be extended to 30 July 1994, and the relevant pleas in paragraphs 6 and 7 of the Commonwealth’s amended defence will be struck out.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             15 September 1999

Counsel for the applicant:	B R McLintock SC with M L Brabazon
Solicitors for the applicant:	Szekely & Associates
Counsel for the respondent:	M J Joseph SC
Solicitor for the respondent:	Australian Government Solicitor
Dates of hearing:	6-9 and 16 July 1998
Date of judgment:	15 September 1999