Lewis v Commonwealth of Australia

[1999] FCA 1292

FEDERAL COURT OF AUSTRALIA

Lewis v Commonwealth of Australia [1999] FCA 1292

PRACTICE and PROCEDURE –  application for extension of time under Limitations Act 1969 (NSW) (“the Act”) to commence proceedings in contract and tort against the Commonwealth following exposure to poisonous gas on HMAS “Stalwart” – whether s 60I(1)(a) of the Act is a subjective or objective test – whether plaintiff unaware of nature and extent of personal injury suffered at expiration of limitation period – particular difficulties with psychological disability – whether application made within 3 years after plaintiff became so aware – whether plaintiff was aware of nature and extent of injury when he became aware that he suffered from “post traumatic stress disorder” – whether psychiatric illness blocked his capacity to become so aware

JURISDICTION – jurisdiction arises because the Commonwealth is a party – the Limitation Act 1969 (NSW) applies by reason of ss 79 and 80 of the Judiciary Act 1901 (Cth)

Limitation Act 1969 (NSW) ss 60G and 60I
Judiciary Act 1901 (Cth) ss 79 and 80

Harris v Commercial Minerals Ltd (1996) 186 CLR 1, applied
CRA Limited v Martignargo (1996) 39 NSWLR 13, applied
Commonwealth of Australia v Dinnison (1995) 56 FCR 389, followed

DAVID MARK LEWIS v

COMMONWEALTH OF AUSTRALIA
NG 808 OF 1998

TAMBERLIN J
SYDNEY
15 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 809 OF 1998

BETWEEN:	DAVID MARK LEWIS APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The limitation period is extended to 6 August 1998.

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 809 OF 1998

BETWEEN:	DAVID MARK LEWIS APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

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

REASONS FOR JUDGMENT

1. Mr Lewis (“the applicant”) seeks an extension of time under the Limitation Act 1969 (NSW) (“the Act”) to commence proceedings against the Commonwealth in contract and tort. His claims arise out of an exposure to poisonous gas and vapours on 22 and 23 October 1985 whilst at sea aboard HMAS “Stalwart” en route to Surabaya from Sydney. At that time Mr Lewis was engaged as a seaman in the Royal Australian Navy.

2. A writ was issued in the High Court on 5 August 1998. On 6 August, Kirby J made an order remitting the proceedings to the Federal Court. The Court’s jurisdiction arises because the Commonwealth is a party. By Notice of Motion filed in the Federal Court, the applicant seeks an extension of the limitation period under the Act. The applicable law is that of New South Wales by reason of ss 79 and 80 of the Judiciary Act 1901 (Cth).

   Legislation

3. The relevant provisions of the Act are ss 60G and 60I which provide:

   “60G.  Ordinary action (including surviving action)

   (1)This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

   (2)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.”

   “60I(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).”(Emphasis added)

4. The relevant dates for consideration are:

   Gassing Incident – 22 October 1985

   Expiry of Limitation Period – 22 October 1991

   Application for extension of time made – 6 August 1998
   3 years prior to that date – 6 August 1995

5. It is common ground that s 60G will apply even though the cause of action arose before 1 September 1990 by reason of the operation of Schedule 5 to the Act which is concerned with “Further Transitional Provisions”.

6. In the light of these provisions and the history of the proceedings, the question raised is whether the Court is satisfied of the matters set out in s 60I of the Act. The relevant date for the purposes of s 60I(1)(b) is 6 August 1995.

   Factual background

7. The applicant was born on 13 August 1960 and enlisted in the Royal Australian Navy on 7 February 1978, signing for a term of twelve years.

8. On 22 October 1985, he was serving on board HMAS “Stalwart” with the rank of Able Seaman Marine Technical Propulsion.  Shortly after his evening meal he heard an emergency alarm, reference to casualties in one of the holds of the vessel and a call for stretchers.  He was then engaged in hauling sailors intoxicated by the gas from the hold.  He said that the casualties pulled out all looked dead.  They were very pale with saliva coming from the sides of their mouths.  In one instance there was vomiting.  Some of the casualties had blood all over their faces.  The applicant was engaged in pulling seven casualties from the area, after which he became very sick and dizzy.  He was taken to the flight deck at about 7.30 pm. At about 8.00 pm he assisted holding down and applying breathing apparatus to the badly gassed sailors who were thrashing around and needed to be held down.  He stayed in the area until about 12.30 am of the following morning of 23 October 1985. 

9. During the events of the evening of 22 October, the applicant collapsed and passed out.  He was taken to the upper deck to get fresh air and then taken to bed.  On 23 October 1985, he was taken by helicopter to Darwin Hospital.  About sixty crew were taken off the ship during that night and three of the applicant’s shipmates died as a result of the incident.  The applicant stayed at Darwin Hospital for a few hours and was then taken to army barracks. 

10. In about April 1986, he transferred to the fleet maintenance party onshore at HMAS “Kuttabul” and started a physical training instructor’s course.  In about June 1986, he suffered a break down and was admitted to a Naval hospital.  His marriage broke down a few weeks after that.  At the time he was drinking excessively and was having flashbacks of the gassing incident on HMAS “Stalwart”.  He says that he found the only way to try and forget it was to keep drinking.  After discharge from the Naval hospital, the applicant continued to have flashbacks and continued drinking, as a result of which his physical fitness deteriorated.

11. On 31 May 1988, he was promoted to Leading Seaman Grade 2.  In January 1989 he was transferred to the boiler room on HMAS “Stalwart”.  At this time he was still drinking excessively in order to cope with his problems.  In March or April 1989, he experienced a vivid recollection of the incident while he was working and injured his knee through inattention.  He left the Navy in August 1989.  From 1989 to 1992, the applicant had various jobs, including one as a fitter for a hairdressing enterprise.

12. In about February 1990, the applicant saw the solicitor Mr Tudehope, of Ferrier & Associates, because of knee injuries.  He says that he mentioned to his solicitor that he had fallen down stairs in 1989 because he had been distracted thinking about the “Stalwart” gassing incident, which had occurred across the passage from where he had fallen.

13. In August 1990 the applicant moved to Darwin and worked initially with Colonial Mutual.  He moved throughout northern Australia for some time.  During this period he was having flashbacks about what had occurred in 1985 and continued drinking excessively; he felt that his life was out of control and was going too fast.  In 1993 he moved to Tweed Heads where he formed a relationship.  While there he saw a psychiatrist, Dr Wright, who gave him a prescription for Rivotril.  He them moved to Newcastle where he saw a general practitioner who referred him to Dr Lambeth who was a psychiatrist.  He married a second time.  This only lasted for about a month.  In February 1994 he said that he saw Dr Lambeth who prescribed certain medicines.  On about his third visit to Dr Lambeth, he said he was told that the doctor thought he had “PTSD”, but he does not recall if he was told what that meant.  For him, he says, it was just words.  He was still drinking very heavily at the time.

14. The applicant again contacted his solicitor, Mr Tudehope, in March 1994.  He then had a conference with another solicitor from that firm and a barrister, but nothing came out of that.  He was told that they could not do anything for him as he was out of time. 

15. In late 1994 the applicant was still drinking excessively and was consuming what he described as enormous quantities of coffee.  Dr Lambeth referred him to a psychologist, Mr Tony Nicholas at Floraville, whom he first saw on 31 October 1994.  He continued taking drugs.  Throughout 1995 he had a great deal of counselling with Dr Nicholas and was also in hospital a number of times in his care.  In November 1995, the applicant was admitted to a private hospital after he was found on the side of a road with his hands on the steering wheel, and his foot flat on the accelerator, but with the car parked going nowhere.  He received great assistance from Dr Nicholas who helped him in getting off the alcohol in 1995 or early 1996.

16. In late 1995, the applicant was referred to a solicitor at the firm Rutter Morgan & Co.  He asked the solicitor whether he had a case against the Navy about the “Stalwart”.  At that time he said he was concerned about his right to claim against the Navy for his knee injury.  He was asked by the solicitor to provide a statement but did not do so, and did not see the solicitor again until late 1996 when he sought advice about parking fines.

17. In 1996 the applicant was enrolled in a pre-trades course at TAFE.  He undertook a course with the Marine Engineering School at the TAFE and completed two parts of the Watchkeepers Course in the first part of 1996.  He met his third wife Marie at McDonalds in Newcastle whilst doing that course.  He also undertook a course at the Australian Maritime College in Launceston from about June to December 1996.  During that year, whilst still under the care of Dr Nicholas, he continued to experience flashbacks of the gassing incident.

18. In about December 1996, the applicant obtained a report from Dr Nicholas to be used in relation to certain warrants which had been issued in relation to traffic fines in Queensland.  He says that about that time he read the report of Dr Nicholas, and that this was the first time in which he was conscious of ever having been aware that his condition was caused by the “Stalwart” gassing incident.  After February 1997, he returned to Newcastle and took a position working on gas tankers running from the North-West Shelf up to Kuala Lumpur and Japan.  In September 1997 he continued his course at TAFE.  In January 1998, he did an electronics crash course at TAFE and by then had completed all requirements for a Marine Technical Engineer Third Class, except for oral examinations.  He failed an oral exam due to stress in early 1998.  He re-sat for it but failed on the re-examination. 

19. The applicant also says that since the gassing incident he has suffered from severe stress and has “run away” about thirty times.  His behaviour was somewhat unusual in that he did not go away and drink but went and slept on a beach, in his car or in a bus shelter for days at a time with no food or money.  He says that this is still continuing to happen.  He recounts that he still continues to suffer flashbacks and that he did not consult his present solicitor until July 1998.

20. On cross-examination the applicant was confronted with a number of documents.  The first was a claim form entitled “Claims for Medical Treatment and Pension” signed by the applicant and dated 25 September 1986, together with a report of a delegate of the Repatriation Commission rejecting a claim for a pension on 16 July 1986 in respect of gas poisoning, nervous condition and phobia.  The report records that the applicant advised that the poisoning occurred as a result of the gassing incident in October 1985.

21. The applicant agrees that in 1990 he spoke with Mr Tudehope and said words to the effect:

    “I have suffered psychologically from the effects of the gassing. I often have flashbacks of the incident.  I also feel more nervous than I did before the gassing.  My condition in this respect has not improved much since 1985.”

22. In 1994 he went to see a barrister, Mr Mark Thompson.  A letter was produced in printed handwriting dated 8 March 1994 addressed to a solicitor at Ferrier & Associates setting out dates and places of breakdowns.  It records that from December 1993 up to March 1994 Mr Lewis had been seeing Dr Lambeth of Warners Bay.  The letter is not in the handwriting of Mr Lewis, nor is it signed, but he agreed that the details recorded there as to his nervous breakdowns were correct.  He was shown an advice by Mark Thompson, the barrister, but he said that he did not recall receiving it.  Also tendered was a five page document to Mr Thompson dated 25 March 1994, containing observations and seeking advice.  There was no evidence that the applicant was aware of this document and it is simply tendered as a business record.  I do not think it carries any significant weight.

23. In addition, there is a letter from Mr Thompson dated 27 July 1995 to Ferrier & Associates, Solicitors, indicating that it would be necessary to apply to extend the limitation period, pointing out that the applicant would need to demonstrate “acquisition during the last three years of knowledge of the fact, cause, nature or extent of his neurotic condition”.  There is no evidence that this document was ever shown to the applicant at that time.

24. The applicant was then shown a document signed on 5 June 1994 entitled “Claim by a Veteran for Disability Pension and Medical Treatment.”  Under the heading “Disability” there was a reference to post traumatic stress disorder and to the cause of it being the gassing incident in 1985.  This was in the handwriting of the applicant.  There was a reference to treatment from 8 October 1993 through to 12 February 1994 with four doctors, including Dr Lambeth, to the drugs or pharmaceutical products taken for treatment.  There was also a reference in the document to the applicant leaving jobs because of nervous breakdowns caused by job stress and also the post traumatic stress disorder caused by HMAS “Stalwart” incident.  In another document, dated 10 August 1994, there is reference to a psychiatric medical examination which refers to a claim for post traumatic stress disorder.  There is another claim form signed by the applicant and dated 9 September 1994, which records that this disability is “caused by substance abuse arising out of PTSD”.  However, the applicant said that this document was not in his handwriting, and he does not recollect making the statements to anyone.  He says that he what he wrote in the previous form was what was told to write by a counsellor; at the time he had been through a second marriage break up.  The social worker was named.

25. The applicant agreed that during 1994 he saw both Dr Lambeth and Dr Nicholas on a number of occasions. In the course of the cross-examination he said that he had left his third and present wife about 35 times but that she stayed with him.  This is some indication to support his case that he is undergoing significant psychological problems. 

26. The critical question is the date on which he became of the nature and extent of the injury. 

    The medical evidence 

27. There are medical reports by Dr Lambeth and by Dr Nicholas in evidence.  Dr Lambeth was required for cross-examination.  Dr Nicholas was not.

28. I am satisfied on the evidence that the applicant is suffering from post traumatic stress disorder. The evidence also clearly supports the conclusion that this arose out of the involvement of the applicant in the gassing incident.  However, the critical question is when he first became aware of the nature and extent of that condition.

29. In a report dated 8 August 1994, Dr Lambeth recounts the history of the applicant’s psychiatric condition.  He concludes that the applicant is suffering from the post traumatic stress disorder when measured against the accepted Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.

30. In another report, faxed on 13 July 1999, Dr Lambeth updated his earlier opinion and considered that there was a continuance of the disorder, with a great deal of anxiety and depression and episodes of disassociation, which indicated that the prognosis was not particularly good.  He expressed the view that it was more probable than not that the relevant symptoms of the post stress traumatic disorder, anxiety and depression were suffered between 1989 and 1995.  These symptoms would have led to extreme anxiety, poor insight, an inability to make judgments and to concentrate, and a tendency to ruminate on unpleasant matters.  These would lead in turn to an inability to understand the nature of his condition, and to understand the relationship between his psychiatric condition and the gassing incident.

31. In cross-examination, Dr Lambeth said he had told the applicant in 1994 that he was suffering from post traumatic stress.  Dr Lambeth considered that the applicant’s ability to understand the nature and extent of his injury was impaired.  He drew a distinction between the position of a person suffering from a physical disorder as opposed to one suffering a psychological disorder.  The pyschological disorder carried with it a confused ability to think and therefore understand what was happening.  Dr Lambeth agreed that on his observation in 1994, the applicant appeared to know that he had a mental condition and that it was called post traumatic stress disorder.  Dr Lambeth did agree in cross-examination that it was obvious to him that the applicant could relate what had happened to him to the incident in 1985, and that he had sufficient understanding, albeit impaired, to understand that he was significantly disabled by post traumatic stress disorder.  However, in re-examination in answer to a non-leading question, Dr Lambeth characterised as “hall marks” of the disorder, a horrific recollection of the incident which is distressing, symptoms of avoidance behaviour and depression, and a state of hyper-arousal in which a person is unable to concentrate and is irritable.  In that state, which is typical of the disorder, the sufferer can experience a confused state caused by psychological factors which inhibits comprehension.

32. Finally, Dr Lambeth said that in August 1994 what the applicant would have understood was simply that he had a condition called post traumatic stress disorder and that this was something which caused him problems.

33. No expert or other evidence was called by the Commonwealth.

    Issues

34. The Commonwealth primarily relies on s 60I(1)(a)(ii) and submits that the applicant was aware before 6 August 1995 of the nature and extent of the post traumatic stress disorder suffered, and that the impairment to his awareness did not require a contrary conclusion.

1. It is not disputed that at the expiration of the limitation period in October 1991, the applicant was unaware of the nature and extent of the injury, but the Commonwealth case rather is that by 6 August 1995 the applicant had become so aware.

   Legal Principles

2. In determining whether an applicant had the required awareness, the Court is concerned with the subjective appreciation of the particular applicant and not with the awareness attributable to a reasonable person in the position of the applicant: see Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9-10. The words “ought to have become aware” appear in s 60I(1)(b) but not subs 1(a). There is no place for constructive or presumptive awareness which is an objective attribution in subs 1(a).

3. In CRA Limited v Martignargo (1996) 39 NSWLR 13 at 20, in relation to a neck injury claim, Clarke JA (with whom Priestly and Powell JJA agreed) said:

   “The subsection is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. … the legislation … 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.”

4. Clarke JA also observed (at 19) that the request of “ought to have become aware” is contained in subs 1(b) and not subs 1(a), and that the two are distinguishable in function in that par (a) is concerned with a applicant’s ignorance of particular facts and par (b) deals with action taken after the applicant became aware of the relevant facts. In the present case counsel for the respondent conceded in submissions that there was no evidence that the applicant ought to have become aware of the matters in s 60I(1)(a) prior to 6 August 1995.

5. The particular perceptual disadvantage suffered by a person suffering psychiatric illness was adverted to by Gummow and Cooper JJ in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 at 402:

   “It is important to appreciate … that the personal injury, the suffering of which Mr Dinnison alleged he did not know, or was unaware as to its nature or extent, was a psychiatric illness.”

6. In that case, the Court was concerned with a psychiatric illness in the nature of a chronic anxiety about exposure to radiation which Dinnison had undergone in relation to the Maralinga atomic testing in 1957-58.  The Court dismissed the appeal from the primary judge who had granted an extension.

7. In cases of physical injury, it is the body which is afflicted and not the perceptual or comprehensive mental capabilities to appreciate the situation. In some psychiatric illnesses, the perceptual ability itself to appreciate diagnoses and their consequences can be blocked by an inability to focus or apply the mind to those circumstances. The awareness referred to in s 60I necessarily assumes the ability to appreciate the impact of information given to the sufferer. In that respect the distinction is of considerable importance in the present case.

   Reasoning

8. The evidence leads me to the conclusion that by 5 June 1994, when the applicant filled out the form claiming for his disability, he had been told that he had post traumatic stress disorder.  The applicant agrees that the reference to this disorder was in his handwriting and that he signed the claim form on 5 June 1994.  He also wrote on that form that he had ceased jobs because of numerous breakdowns caused by job stress and post traumatic stress disorder caused by HMAS “Stalwart”.  However, I accept the applicant’s evidence that he consulted with a social worker and that he was told what to write because he as unable to cope with managing his affairs at that time.

9. The applicant’s evidence is supported by the evidence of Dr Lambeth who first saw the applicant in February 1994.  He found that the applicant became very easily distressed and easily confused and he was very dependant on his wife for support.  Dr Lambeth expressed the view in his report of 8 August 1994 that the applicant was severely depressed.  He then diagnosed the applicant as suffering from poor concentration, insomnia, hyper vigilance and an exaggerated startle response.  Dr Lambeth records that the applicant was on medication which helped to some degree.  As at 25 August 1995 Dr Lambeth reported, after seeing the applicant regularly since August 1994, that his condition had been “dreadful” and that at times he was unable to think or speak coherently in any ordered way.  His thoughts were said to be “extreme” despite heavy medication.  He concluded that the applicant had a severe impairment of 60.  In his report of 13 July 1999, Dr Lambeth, although agreeing it was a difficult question, considered it more probable than not that between 1992 and August 1995 the symptoms of the applicant were such that he had an inability to understand his condition and the relationship between the gassing incident and his condition.

10. I am satisfied that the mental state of the applicant during the period 1992 through to 1995 was such that he was more likely than not unable to appreciate or be aware of the nature of his condition or the extent of it, notwithstanding that he was probably aware that it was called post traumatic stress disorder and that he had psychiatric problems which required medication.  The illness blocked his capacity to be so aware.  The fact that the applicant subsequently was able to undertake training courses does not diminish the force of Dr Lambeth’s evidence.

11. I am satisfied that the applicant was not aware of the nature or effect of his psychiatric injury before the expiration of the limitation period. I am also satisfied that given his condition and absence of diagnoses or explanation, it was not reasonably to be expected that legal proceedings would have been instituted before 22 October 1991.  The materials relied on by the Commonwealth prior to that date are inconclusive and do not set out the nature and extent of his illness, nor are they relevantly signed or acknowledged by him. There is no statement in his 1989 Lifestyle Report, nor in his 1989 Claim Form with the Department of Veteran’s Affairs of his psychiatric disorder is there any indication that this condition was explained to him before October 1991.  The 13 February 1990 Statement was not signed by him, and simply refers to his feeling “much more nervous”, which does not amount to awareness of the true extent of his illness.

12. I am also satisfied that the application for extension was made within three years of the time when the applicant became aware or ought to have become aware of all matters set out in s 60I(1)(a). Specifically, I am satisfied that the applicant did not have the required awareness prior to December 1996.

13. No evidence of any prejudice to the Commonwealth has been led in the event that an extension of time were granted.  Nor was there any assertion of prejudice.

14. Accordingly, in this case, I consider that there should be an extension of the limitation period of up to and including 6 August 1998 and I so order.  I will hear the parties on costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             15 September 1999

Counsel for the Applicant:	B R McClintock SC and A C M Iuliano
Solicitor for the Applicant:	Szekely & Associates
Counsel for the Respondent:	T J Morahan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27-28 July 1999
Date of Judgment:	15 September 1999