Pearce v Commonwealth

[2005] NSWSC 359

CITATION:	Pearce v Commonwealth of Australia [2005] NSWSC 359
HEARING DATE(S):	12,13 April 2005
JUDGMENT DATE :	5 May 2005
JURISDICTION:	Civil
JUDGMENT OF:	Cooper AJ at 1
DECISION:	1 That the Notion of Motion is dismissed; 2 That the applicant pay the respondent's costs of the Notice of Motion

CATCHWORDS:	Extension of time under s 60G of the Limitation Act 1969 - HMAS Melbourne - Voyager collison - Issue of prejudice
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Mount Isa Mines v Pusey 125 CLR 383 The Commonwealth v Dinnison No NG 159 of 1994
PARTIES:	Russell Henry Pearce The Commonwealth of Australia
FILE NUMBER(S):	SC 20848 of 2001
COUNSEL:	G Parker (Plaintiff) D J Brogan (Defendant)
SOLICITORS:	Hollows Lawyers Melbourne Blake Dawson Waldron Sydney

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

ACTING JUSTICE COOPER

5 May 2005

20848 OF 2001

RUSSELL HENRY PEARCE v THE COMMONWEALTH OF AUSTRALIA
JUDGMENT

1 COOPER AJ: This is a Notice of Motion by a former member of the crew of HMAS Melbourne who claims that he suffered psychiatric injury as the result of the collision between that vessel and HMAS Voyager on the night of 10 February 1964. By his Notice of Motion filed on 24 October 2001 he seeks an order pursuant to s 60G of the Limitation Act that the limitation period for the cause of action be extended to enable him to commence the present action.

2 By his Statement of Claim filed on the same day he alleges that the collision between the two vessels was caused by the negligence of a person or persons for whom the Commonwealth is liable. He further alleges that as a result of the collision he sustained psychiatric injuries including severe shock, severe anxiety and depression, difficulties with sleeping, nightmares and night sweats, irritability and fatigue, difficulty in concentrating and making decisions and solving problems, mood swings, frustration and isolation and Post Traumatic Stress Disorder with avoidance symptoms and arousal symptoms. He also alleges that he attempted to medicate himself by heavy use of alcohol and has an anxiety disorder, an adjustment disorder and diminished sexual disorder.

3 He also claims that had the collision not occurred it is likely that he would have risen to a commissioned rank and remained in the Navy until retirement at or about the age of 55 and would have received appropriate Defence Forces Retirement Benefit entitlements and other service benefits. He claims that because of the injuries he has lost earnings.

4 By its Grounds of Defence the Commonwealth admits that the collision was due to negligence of persons for whom it is responsible. It denies that the collision caused any resulting injuries or losses to the plaintiff. It further claims that if any injury and or damage were suffered by the plaintiff, they were too remote to be a proper basis for recovery of damages and that the injury and damage was of a different kind from that which was reasonably foreseeable. In addition, it alleges that the plaintiff failed to mitigate his losses.

5 It can be seen, therefore, that if the matter were to proceed to trial there would be no issue as to the actual cause of the collision between the two vessels but the issues to be determined would be limited to the damages, if any, caused by such collision.

THE BACKGROUND FACTS

6 In support of his claim the applicant has sworn 7 affidavits produced 2 others and has also given evidence before me.

7 The applicant was born on 22 May 1941 at Murwillumbah the son of share farmers. He later moved to Ipswich in Queensland where he attended school until the age of 15 and then left to commence work. In 1958 at the age of 17 he enlisted in the Navy for an initial period of 9 years service being attracted by the prospects of seeing the world and learning a trade as an engineering mechanic.

8 He served time on the Queenborough and then the Anzac and was posted to the HMAS Melbourne on 28 December 1962 on which he spent the next two and a half years.

9 He passed his examinations for promotion to leading engineering mechanic in December 1961 and performed duties in the boiler, engine and gear rooms as well as in the freshwater plant and the laundry.

10 As at 10 February 1964 he was in charge of the Double Bottom which meant that he was in charge of six other ratings looking after the ship’s fuel for the boilers, transfer of fuel to other ships and receiving fuel for other ships at sea and at port.

11 On the night of the collision he had been on top of the bridge intending to watch planes do “touch and go” manoeuvres on the flight deck. There was insufficient wind for the planes to make these manoeuvres and so he returned to his mess and was reading on his bunk when he felt the ship shudder. He ran out on to the port side deck and saw the front part of the Voyager on its side floating past. He could see several men on it yelling out “help us”. However there was nothing he could do because the engines of the Melbourne were still going which meant that the propellers would be turning and consequently he could not jump into the water to help the sailors.

12 The men were then called to action stations and the applicant was sent to check for any water leaks or damage to fuel tanks and to check all outside machinery spaces. Fortunately there were no such leaks.

13 While survivors from the Voyager were being brought on board the Melbourne the applicant went to the flight hangar to offer assistance which was not required. He then went to the starboard side from where he could see the rear section of the Voyager still afloat. He was dumbfounded that such a collision could occur. He had a friend Gary Perrett who also came from Ipswich and who had been on the Voyager and he was making inquiries about him. Those inquiries yielded nothing and he suspected that Perrett had perished which was later confirmed. This upset him. He found he could not believe what had happened. Eventually he saw the rear section of the Voyager sink while he watched and this was an extremely distressing period.

14 After the Melbourne had returned to Sydney for repairs he took survivor’s leave and was met by the parents of Gary Perrett and had to explain to them as best he could what had happened. He found this very upsetting and was even more distressed afterwards.

15 Prior to the collision he had been a light smoker and a social drinker. After the collision he increased his cigarette intake to help him relax. He also suffered from difficulty in getting to sleep finding that he was preoccupied with thoughts of the collision and would lie awake in bed just thinking about it. He learnt that the best way to get a decent night sleep was to drink alcohol before going to bed. This became a daily habit when he was on shore and he found his consumption of alcohol increasing. Although he could sleep better after having consumed alcohol he still tended to wake up on many nights with dreams reliving aspects of the collision. He would be restless and shaking in bed, sweating and very uncomfortable.

16 Within a short time after the collision he found himself commencing to stutter and stammer which made him feel embarrassed when meeting or talking to people. He had been recommended as an instructor but he found the effects of stammering impeding his ability to give orders and it undermined his confidence when instructing. He also found his handwriting deteriorating in quality and he became even more anxious.

17 His evidence was that he became apprehensive about the possibility of a further collision at sea especially when involved in operations around other ships. He lost confidence in his superiors and became disillusioned with his naval career. When his engagement expired in 1969 he did not renew it and left the Navy. He was then becoming increasingly unhappy and hoped that things would be better away from the constant exposure to reminders of the collision that life in the Navy presented.

18 In paragraph 11 of his affidavit of 4 March 2002 the plaintiff swore:-

“I married in 1969. We had three children who are now all adults. My wife has stuck by me over the years although particularly during the 1970s there were many times when she threatened to leave. I found I was becoming dependent upon alcohol to shut out the dreams and memories. I had become intolerant. I seemed to have a short fuse and have become aggressive and moody without warning. I continue to have restless and unsettled nights in bed, sweating, tossing and turning, unable to fall asleep, with dreams of and flashbacks to the collision. A number of times over the years I have woken up screaming and have been relieved to find that I was not in fact involved in the collision again. I kept having a vision of the front section of the Voyager and blokes on it screaming for help. In my dream I felt helpless, I couldn’t jump in to help because the Melbourne’s propellers were still going. I found that the alcohol would help me to get to sleep, but I still woke up during the night tense, with muscle cramps, dreams and dry retching. Frequently my wife couldn’t tolerate sleeping with me.”

19 His affidavit continues that since leaving the Navy he has not been on a ship again. He feels uncomfortable when travelling on an aeroplane because he does not like being shut in and feels uncomfortable and sweaty when he is in an enclosed space. He keeps thinking “how am I going to get out of here if anything happens”.

20 In paragraph 14 of his affidavit of 4 March 2002 he says:-

“After leaving the Navy, I attempted to avoid as far as possible all reminders of my experience in the collision. I sought as far as possible to work alone as a courier driver, having as little to do with people as possible. I tried to keep away from other people and keep to myself and to bury myself in my work. Since my discharge I have tended to work 7-day weeks, so that I do not have time to sit around thinking and have memories flooding in. I have also used alcohol very heavily to try and shut out memories, until about 1980. By then my wife was threatening to leave me, and I finally recognised that the alcohol was ruining my life and my family life. Accordingly, I buried myself in work even more and swore to give alcohol. Until then I often found myself going on a drinking spree after something occurred to bring back the memories. I would then go home, abuse and argue with my wife and make the scene at home extremely unpleasant.”

21 His affidavit continues:-

“15 It was more difficult to deal with the memories without alcohol, so I tried to keep working as hard as possible to exhaust myself in the hope that then I would be able to shut out the memories and be able to sleep at night. Whilst I can recognise now what was happening, I did not see it at the time. I just knew that I felt deeply uncomfortable and distressed when the memories came back to me, and I tried any means possible to shut them out. I didn’t seek any medical treatment or counselling, as I didn’t know what my problem was. It was not until last year when I started having difficulties with breathing that I finally consulted a doctor. In response to questions I mentioned the experience with the collision.
16 As a result of examinations organised following my attending of the doctor, I learnt that I was suffering ischaemic heart disease and required a by-pass operation, which was performed in May 2001. I also learnt that I have pleural plaques on my lungs. Further as a result of being referred to a psychiatrist, I was informed that I am suffering from a condition know as Post Traumatic Stress Disorder as a result of a combination of my experiences in the Melbourne-Voyager collision exacerbated by my time on the Perth off Vietnam. Until this diagnosis was made I had no idea that I was suffering from a psychiatric disorder as a result of my experience in the collision.”

22 In paragraph 13 of his affidavit the plaintiff says:-

“Although my attitude to the Navy changed after the collision, I had no inkling that I had sustained a psychiatric disorder. We were not encouraged to talk about the collision, so I tended to bottle it up and I have not talked to anyone about the events of that night until recent times when I was referred for counselling.”

23 Annexed to his affidavit is a certificate of his service in the Navy which shows that he joined on 2 October 1958 for 9 years and then rejoined for a further 2 years and 69 days on 24 October 1967. In November 1968 he was awarded the Vietnam Medal and in March of 1969 the Vietnamese Campaign Medal. He was discharged on 31 December 1969.

24 On 7 September 2000 the applicant was seen by Dr S. K. Law, a consultant psychiatrist who reported to the plaintiff’s general practitioner, Dr Younan, on 27 September 2000. In that report the doctor concludes:-

“Mr Pearce has probably suffered from a mild degree of Post Traumatic Stress Disorder (PTSD) as a result of his having gone through the horrendous experience of the collision between HMAS Melbourne and HMAS Voyager.
He has suffered PTSD symptoms psychologically, but there has been no firm evidence that he has been very significantly affected in his domestic situation, work situation, or socio-recreational aspects of daily functioning.
No medication is required at this stage. He may need some session of supportive counselling in the future, however.”

25 In April 2001 the plaintiff was seen by Dr K Reinhardt, a consultant psychiatrist, who reported to Dr Younan on 5 April 2001. In that report this doctor says:-

“While in the Navy he was exposed to a number of traumatic experiences which are prominent in his re-experiencing symptoms.
At age 19 he received an electric shock while trying to fix a washing machine while on the Queenborough. He received a burn to his leg and believes he would have died if he had not been wearing rubber thongs. He reported the incident, but it was dismissed.
At age 20, he was on the Melbourne when it hit the Voyager. This incident was associated with witnessing the death of others with horror and helplessness.
In 1969, he served on the Perth going to Vietnam. They were under fire on two occasions and Mr Pearce feared for his life. He left the Navy in 1969 with the rank of petty officer.
In summary, Mr Pearce suffers from chronic Post Traumatic Stress Disorder. At present I have prescribed temazepan for his insomnia, but believe he would benefit from more intensive treatment when his physical problems have been addressed.”

26 On 7 October 2001 the applicant had a lengthy consultation with Helen Stain a psychologist who reported to his solicitors on 28 January 2002. In that report Ms Stain concludes that the plaintiff has Post Traumatic Stress Disorder with a highly significant impairment in social and occupational functioning.

THE LAW

27 The limitation period within which action ought to have been brought in respect of this accident expired on 9 February 1970. This application was filed some 31 years after that date.

28 Subdivision 3 of Part 3 of the Limitation Act 1969 makes provision for the discretionary extension of the time limit in the case of certain latent injuries, the relevant sections being:-

60F Purpose of this Subdivision
The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.

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.

29 However, before one reaches the stage of deciding whether it is just and reasonable to extend the time limit the plaintiff must satisfy the Court of certain threshold matters which are set out in s 60I, namely:-

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

Has the Plaintiff established the Threshold Matters ?

30 On behalf of the defendant it is submitted that the plaintiff knew that personal injury had been suffered and was aware of the nature and extent of that personal injury and further was aware of the connection between the personal injury and the collision at the expiration of the limitation period. In support of that contention the defendant relies upon the following evidence of the applicant at pages 26 and 27 of the transcript:-

“BROGAN: Q. I was asking you some questions a little earlier about the difficulties that you were having with sleeping and I think you told me that you have had those difficulties over the whole of the period from 1964, since the collision, correct?
A. No. The worst part was from the 70s onwards. That was the worst part. If you want to - between '64 and the time I went out it was not too bad.

Q. Does that mean you didn't have any difficulties with sleeping between the collision and 1970 when you got out?
A. Not as bad as - it was less than what it was after.

Q. Less severe than after you got out, but severe nevertheless?
A. I'd say severe but I did have a lot of restless nights on the ships, right, but not like every night.

Q. All right. I think I also asked you whether the difficulty that you had with sleeping was that you were reliving in your own mind the events of the night of the collision which was causing you to have difficulty getting to sleep?
A. Correct.

Q. I think you agreed with that?
A. Correct.

Q. Therefore, between the period 1964 to 1970, you attributed the difficulties you were having getting to sleep with the effects of the collision upon you?
A. Correct.

Q. Because you were remembering, when you were trying to get to sleep, what had happened on that night?
A. Correct.

Q. So too after 1970 when the difficulties with sleeping increased, you attributed those difficulties to the effects of the collision upon you, correct?
A. Correct.

Q. Because you were reliving, in effect, the events of that night while you were trying to get to sleep, correct?
A. Correct.”

31 The defendant also relies upon the following evidence of the plaintiff appearing at pages 27 to 30 of the transcript:-

“Q. Sir, is it correct that after the collision you increased your use of alcohol?
A. Yes.

Q. And is it correct that the reason that you increased your use of alcohol was to assist you with the anxiety that you experienced when you remembered the events of the night of the collision?

A. Yes.

Q. And the reason why you commenced to use alcohol to relieve that anxiety was to make you feel better and to avoid the adverse effects of those thoughts of reliving the collision, correct?
A. Yes.

Q. Between the period 1964 to 1970 when you were increasing your use of alcohol, you knew that the reason why you were increasing the use of alcohol was to alleviate the effect of being constantly reminded of the collision, correct?
A. Yes.

Q. And you knew, therefore, I suggest to you, that your increased use of alcohol was directly related to the effects upon you of the collision?
A. I'd have to say yes. I used it to try and block out the visions or the photographic memory I was getting in my head.

BROGAN: Q. So too for the periods from 1970 through to about 1981 when I think you stopped using alcohol?
A. That is correct.

Q. During that period, the reason that you used the alcohol was, again, to alleviate the effect of your recollections of the collision?
A. That is correct.

Q. What I want to suggest to you is that, from 1964, shortly after the collision, you realised that you were uncomfortable and distressed. Do you agree with that?
A. I realised I was uncomfortable. I don't know at that time if I realised I was distressed.

Q. You were suffering anxiety, depression, difficulty with sleeping, attempting to shut out unwanted thoughts by the heavy use of alcohol?
A. That's true.

Q. And you were doing that from 1964 onwards after the collision?
A. Yes, yes.

Q. And you knew from 1964 onwards, after the collision, that all of those which I have described to you were consequences of the collision?
A. Yes.

Q. And you say in your affidavit at page 15, that is your first affidavit sworn on 4 March 2002, paragraph 15, you say, "I just knew that I felt deeply uncomfortable and distressed when the memories came back to me." Do you see that? You say, "I tried any means possible to shut them out." Page 5, paragraph 15?
A. Yes.

Q. What I am suggesting to you is that, from 1964 onwards, once you had suffered the effects that I have described to you, you knew that you had some sort of a problem, didn't you?
A. No. I knew I had a drinking problem, yes.

Q. But you knew you had some sort of - sorry?
A. I knew I had a drinking problem, yes.

Q. And you knew you had problems sleeping?
A. I knew I had problems sleeping, yes.

Q. And you knew you had problems with anxiety, correct?
A. Correct.

Q. And you knew you had problems with depression?
A. Yes.

Q. And you knew you had problems getting to sleep?
A. Correct.

Q. And concentrating?
A. And concentrating. Yes.

Q. And you knew you were using excessive alcohol?
A. Yes.

Q. And as you say in your affidavit at paragraph 15, page 5, you didn't know what your problem was. Do you see that there?
A. I see that.

Q. It's correct, isn't it, that you knew that you had a problem but you didn't know what your problem was?
A. Well, true to say, yes.

Q. One of the reasons why you knew that you had a problem was that your wife had been suggesting to you for some time over the years since you were married that you had a problem and that you should seek help?
A. That is correct.

Q. And when, as best as you could recollect, did your wife suggest to you that you had a problem and that you should seek some help?
A. Yes, she advised me to do that.

Q. When, as best as you can remember, did she first do that?
A. I think I might have been still in the Navy. Prior to leaving the Navy she urged me to see a naval doctor about my problems. I said, "There's nothing wrong with me." We weren't offered any help after the accident so--

Q. Is that something you can remember, the suggestion by your wife that you should seek help from the Navy psychiatrist?
A. No, she didn't say "psychiatrist". In her written statement she wrote down "doctor". I don't remember her - I know it was suggested some time late after we got married that I see someone, but that was it.

Q. She was suggesting to you, was she, that you should see someone about--
A. About my drinking problem or what problems I had.

Q. Which were what?
A. My drinking and the restlessness, the abuse which stemmed from she knew it had something to do with the Navy but she didn't know what because I never told her up until this day about the accident. She only - only what she's read in the affidavits.

Q. But she was clearly suggesting to you, wasn't she, that you had a problem?
A. That is correct.

Q. And it wasn't on only the one occasion that she suggested to you that you had a problem; it was quite frequently, wasn't it?
A. Over the period of the 70s and 80s, yes, she suggested to me quite a few times.

Q. The first suggestion was, since what time in early 1960--
A. It was after we were married, probably mid '69, late '69. Before I got out of the Navy she pleaded with me to seek help.

Q. She continued to urge you to seek help up until--
A. Up until I gave the drink up.

Q. Was it suggested to you by anybody else that you should seek help?
A. Nope.”

32 The submission continues that from the time of the collision onwards, albeit with varying degrees of intensity, the plaintiff knew:-

i. that he had difficulty with sleeping because he was reliving in his own mind the event of the night of the collision,

ii. that he attributed the difficulties with getting to sleep to the effects of the collision upon him,

iii. that he increased his use of alcohol to assist with the anxiety he experienced when he remembered the events of the night of the collision,

iv. that between 1964 and 1970 when he was increasing his use of alcohol he knew that the reason why he was doing so was to alleviate the effects of being constantly reminded of the collision and to try and block out the visions or the photographic memory he was getting in his head. This continued from 1970 to about 1981 when he stopped using alcohol.

33 On top of these symptoms, the plaintiff was aware from shortly after the collision that he was uncomfortable, suffering anxiety, depression, difficulty with sleeping, attempting to shut out unwanted thoughts by the heavy use of alcohol and that he knew from 1964 onwards after the collision that all of those symptoms were consequences of the collision. Furthermore he knew that he had a drinking problem, a sleeping problem, problems with anxiety and depression and concentrating. In addition, one of the reasons why he knew he had a problem was that his wife had been suggesting to him for some time since 1969 that he had a problem and should seek help.

34 On the basis of this evidence the defendant contends that the plaintiff was aware of the nature and extent of the symptoms he was suffering and of the connection between those symptoms and the defendant’s acts or omissions at the expiration of the limitation period. Alternatively he was certainly aware of the nature and extent of his symptoms and of the connection between those symptoms and the collision long before 3 years prior to lodging this application.

35 In response to this the plaintiff relies on the evidence he gave at pages 13 and 14 of the transcript:-

“Q. When was the first time that you thought you might have a psychological injury?
A. The first time that I thought was when I seen - I seen Doctor Law.

Q. How did you come to see Doctor Law?
A. I was recommended to see Doctor Law by the Vietnam Veterans at Granville when I went there to fill out some papers for Veterans Affairs. A bloke said to me, mate, you’ve got to go and see a psychologist. You are a very stressed person. Why are you stressed? I said I don’t know. I said, what’s stress?

Q. I think you got a copy of Doctor Law’s report of September 2000?
A. Yes.

Q. Did Doctor Law explain to you the diagnosis of post traumatic stress syndrome which is contained in that report?
A. No.

Q. Did Doctor Younan explain that diagnosis to you at that time?
A. No.

Q. I think that in about April 2001 you were sent to the St John of God Hospital and saw a Doctor Reinhardt, is that right?
A. That’s correct, yes.

Q. And you have seen Doctor Reinhardt’s report shortly after the consultation?
A. That’s correct, yes.

Q. Did Doctor Reinhardt explain to you what post traumatic stress syndrome was?
A. No.

Q. Did either Doctor Reinhardt or Doctor Law at that time explain to you that you had a psychological injury?
A. No.

Q. Did you have a belief that you had a psychological injury at that time?
A. No.

Q. What did you believe was wrong with you, if anything?
A. I didn’t believe there was anything wrong with me at all; I just thought I was quite normal.

Q. You thought--
A. I had a drinking problem but I didn’t put it down to stress or anything like that.

Q. In any event, you subsequently saw a Miss Stains?
A. That’s correct, yes.

Q. Did you spend some time with her?
A. I spent a lot of time with Helen Stains, yes.

Q. Did she come to explain to you what it was that was happening to you?
A. In a way, yes.

Q. What did she say was happening?
A. It’s quite some time now since I have seen her. She said to me that due to the fact that for what I have been through and that, I haven’t had any treatment for it, that I should seek treatment for my anxiety, or something to calm me down, and that’s all I can remember at the moment.

Q. Up until you saw Miss Stains, what belief did you have as to the relationship between the collision, on the one hand, and the flashbacks that you were having? Did you have any belief about there being an association between those two items?
A. No, not really.

Q. Prior to seeing Doctor Law and coming through to seeing Miss Stains, had you ever sought any treatment in relation to your emotional and psychological state?
A. No.”

36 The defendant contends that throughout this period the plaintiff knew that he had sustained a personal injury as a consequence of the collision between the Melbourne and the Voyager and refers to the definition of that term appearing in s 11 of the Act as:-

“Personal injury includes any disease and any impairment of the physical or mental condition of a person.”

37 The defendant submits that the plaintiff was well aware of a number of impairments of his mental condition as set out above.

38 On behalf of the plaintiff it is submitted that whilst he was aware of those symptoms he was not aware that they constituted an actionable psychiatric injury.

39 As long ago as 1970, Windeyer J observed in the case of Mount Isa Mines V Pusey 125 CLR 383 at 394:-

"Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a 'shock', however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had."

40 The defendant submits that the plaintiff knew the nature and extent of his personal injury and its relationship with the collision but all that was lacking was the medical label to be placed upon that injury. Consequently he has not crossed the threshold prescribed in section 60I.

41 The answer to this submission is that it is not every impairment of mental or emotional state which sounds in damages. As is pointed out above a plaintiff must suffer a form of psychiatric or mental illness. The plaintiff was not aware that those symptoms amounted to such an illness until, at the earliest, when he saw Dr Law on 7 September 2000.

42 In this regard one must be careful to distinguish physical from psychiatric injuries. In the latter there is a fine line between non-compensable and compensable consequences of a negligent act. This distinction is referred to by the Federal Court of Australia in the case of The Commonwealth v Dinnison No NG 159 of 1994 at paragraphs 55 and 56 of the joint judgments of Gummow and Cooper JJ.

43 I am satisfied, therefore, that the plaintiff did not know that personal injury had been suffered by him at the expiration of the limitation period or at any earlier time.

44 This however does not conclude the threshold matters which the plaintiff has to establish.

45 He must also establish the matters set out sub-section (1) (b) of section 60I, namely that the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraphs (a) (i) to (iii).

46 The plaintiff has satisfied the Court on the balance of probabilities that this application was made within 3 years after the plaintiff actually became aware of those matters in September 2000 when he was seen by Dr Law.

47 However the sub-section also refers to “or ought to have become aware”.

48 There is no doubt that the plaintiff was aware that he was suffering quite intrusive symptoms which affected his everyday life and that those symptoms were attributable to the collision. The question then is ought: he to have become aware that these constituted a psychiatric illness?

49 In his affidavit of 3 March 2004 Professor McFarlane, the head of the Department of Psychiatry at the University of Adelaide, states that he has examined and provided medico- legal assessments to numerous survivors of the Melbourne-Voyager disaster. In that affidavit he points out that Post Traumatic Stress Disorder is a difficult condition for various reasons. Avoidance behaviour is a common symptom of that condition and two possible manifestations of avoidance behaviour are avoidance of treatment and avoidance of disclosing symptoms to doctors. Furthermore sufferers of Post Traumatic Stress Disorder commonly have a lack of objectivity about their conditions and often have erroneous subjective beliefs about the cause of their problems.

50 Professor McFarlane has not seen the plaintiff and was talking in general terms. The essence of what he says is that the failure to seek treatment for the symptoms is, in effect, a symptom of the psychiatric illness itself.

51 If the evidence were to stop at this point I would have no hesitation in finding that the plaintiff had satisfied the requirements of paragraph (1) (b) of s 60I. However there is further evidence.

52 From the passages of the plaintiff’s evidence set out earlier it is clear that the plaintiff knew that he had problems and one of the reasons for this knowledge was that his wife had suggested to him over the years since they were married that he had such problems and should seek help. These suggestions commenced while he was still in the Navy when she urged him to see a Naval doctor about his problems. He described the problems which caused her to give him this advice:-

“My drinking and the restlessness, the abuse stemmed from. She knew it had something to do the Navy but she didn’t know what, because I never told up until this day about the accident.”

53 Furthermore this suggestion was made quite frequently over the period of the 1970s and early 1980s. The plaintiff said that before he got out of the Navy she pleaded with him to seek help and these pleas continued until he gave up the consumption of alcohol in about 1981.

54 This is not a case of a man who was left entirely to his own devices to cope as best he could with the problems that he has experienced. This is the case of a man who was aware that he had intrusive and continuing problems of an emotional or mental nature following the collision in February 1964 and was aware that those problems were of such severity that his wife repeatedly urged him from late 1969 up until about 1981 to seek appropriate help.

55 I am satisfied on the balance of probabilities that he ought to have followed his wife’s advice at the latest by 1981.

56 The next question to consider is: if he had sought medical advice at some stage between 1969 and 1981 would he, on the probabilities, have been diagnosed as suffering from a psychiatric illness caused or materially contributed to by the collision and received appropriate treatment?

57 The evidence of the plaintiff is that his condition, with some fluctuation, has remained reasonably constant up to the time he underwent psychological treatment during the past two years.

58 It appears from paragraph 6 of the plaintiff’s affidavit of 3 September 2004 that he was told by Dr Younan, his general practitioner, in August 2000 that he had an asbestos related diseased and also ischaemic heart disease. He was referred to appropriate specialists and heart bypass surgery was performed on 5.May 2001.

59 After being told of the asbestos related disease in August 2000 he attended the Vietnam Veteran’s Association at Granville where it was suggested that he see Dr Law, a psychiatrist. He obtained a referral to Dr Law from Dr Younan and saw the former on 7 September 2000.

60 The circumstances under which it was suggested that he see Dr. Law was described by him in evidence at page 13 thus:-

“Q. When was the first time that you thought you might have a psychological injury?
A. The first time that I thought was when I seen - I seen Doctor Law.

Q. How did you come to see Doctor Law?
A. I was recommended to see Doctor Law by the Vietnam Veterans at Granville when I went there to fill out some papers for Veterans Affairs. A bloke said to me, mate, you’ve got to go and see a psychologist. You are a very stressed person. Why are you stressed? I said I don’t know. I said, what’s stress?”

61 Exhibit RP7 to the affidavit of the plaintiff sworn 6 May 2004 includes an Emotional and Behavioural Condition Assessment dated 20 March 2001 from Dr Younan. In that Assessment Dr Younan ticked in question 4:-

“Continuous symptoms causing overwhelming distress; he cannot distract himself from the distress even with a high level of support and reassurance.”

62 Dr Younan also ticked in question 7:-

“Obvious distress and preoccupation with the symptoms is evident to casual observers and even persons unfamiliar with him”

63 The form also mentioned that an appointment had been made for the plaintiff to be seen by Dr Reinhardt on 3 April 2001.

64 It is clear, therefore, that to a person at the Vietnam Veteran’s Association as well as to medical practitioners, the plaintiff had a psychiatric condition which warranted treatment. This was the situation at August 2000 and, on the probabilities, it would have been the situation at any time between 1969 and 1981. Accordingly, I am satisfied on the probabilities that if the plaintiff had followed his wife’s exhortations up to 1981 to seek help from a doctor, he would have been diagnosed with a psychiatric illness and have received appropriate treatment

65 The present application was not made within 3 years after 1981.

66 It follows therefore that the plaintiff has failed to satisfy the Court on the balance of probabilities of the threshold matters set out in s 60I of the Limitation Act.

67 But even if he had passed this gateway there is a further matter which the plaintiff has to overcome.

68 Under s 60G (2) of the Act he has to satisfy the Court on the balance of probabilities that it is just and reasonable to order that the limitation period be extended.

69 I am satisfied that the plaintiff’s failure to seek help for the problems which he knew he had and which he knew were related to the collision between the Voyager and the Melbourne and which were the subject of exhortations by his wife to seek help over a period of some 11 years from 1969 to 1981 convinces me that it is not just unreasonable to order that the limitation period be extended.

70 I have been referred to a number of cases in which former members of the crew of HMAS Melbourne have successfully applied for an extension of the limitation period to enable them to commence action against the Commonwealth to recover damages for psychiatric injuries sustained as a result of the collision between that vessel and HMAS Voyager.

71 Those cases, however, were decided upon the evidence presented in each individual case. I have decided this case on the basis of the facts which are unique to it.

This Issue of Prejudice

72 It is appropriate that I should refer to the detailed submissions made on behalf of the parties on the issue of the prejudice said to be suffered by the defendant because of the delay which prejudice prevents the defendant from obtaining a fair trial.

73 On behalf of the defendant it is submitted that proof of the plaintiff’s psychiatric injury is fundamental to his cause of action. The expert opinions of Dr Law, Dr Reinhardt and Ms Stain are based upon the history given by the plaintiff to them. The evidence of the plaintiff as to his symptomatology it is said is uncorroborated.

74 The plaintiff agrees that at no stage during his service in the Navy did he complain of any emotional problems nor did seek he any help from Naval authorities. The submission continues that with the passage of years there will be a diminution in the memory of people who are available to give evidence, that records have been destroyed and that possible witnesses are no longer available. The submission also points out that the delay of over 30 years of itself disadvantages the defendant.

75 It is also pointed out that the cause of the plaintiff’s injuries are uncertain because of the effects of his service on the HMAS Perth during the Vietnam War plus the stress of his physical conditions of ischaemic heart disease and pleural plaques.

76 The plaintiff’s solicitors have provided the defendant’s solicitors with the names of persons with whom the plaintiff has been associated both in the Navy and out of it over the years. An investigator has interviewed those who could be located and most of them were unable to give any assistance.

77 I have considered the detailed arguments set out in the affidavits filed on behalf of the defendant as well as the detailed submissions and schedules annexed to those submissions.

78 It appears to me however that the difficulties caused by the delay are more likely detrimentally to affect the plaintiff upon whom rests the onus of establishing his consequential injuries and losses. If the plaintiff is unable to call witnesses to corroborate his evidence or to give a “before and after” picture of his life then it is he who will suffer.

79 Any prejudice to the defendant could be overcome by requiring the plaintiff to furnish to the defendant before the hearing proofs of evidence of such “before and after” witnesses. This would give the defendant the opportunity to check the service history of such of them as served in the Navy and to make other appropriate inquiries in relation to both those who so served and those who did not serve.

80 In short whilst I agree there could not be a perfect trial if leave were granted, it would nonetheless be a fair trial.

Conclusion

81 Accordingly for the reasons already given I make the following orders:-

1 That the Notice of Motion is dismissed.
2 That the applicant pay the respondent’s costs of the Notice of Motion.

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