Ramsay v Commonwealth of Australia - [2006] NSWSC 1389

No judgment structure available for this case.

CITATION: Ramsay v Commonwealth of Australia [2006] NSWSC 1389

HEARING DATE(S): 21/11/06, 22/11/06, 23/11/06

JUDGMENT DATE :
14 December 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Pursuant to s 60G(2) of the Limitation Act 1969 the limitation period for the cause of action in this proceeding is extended to 20 March 2002; 2. The costs of the applicant’s application are costs in the cause.

LEGISLATION CITED: Limitation Act 1969
Veterans’ Entitlements Act 1986 (Cth)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541
Commonwealth of Australia v Shaw [2006] NSWCA 209
Commonwealth of Australia v Smith [2005] NSWCA 478
Purkess v Crittenden (1965) 114 CLR 164
Telstra Corporation v Rea; Smith per Santow JA at [103]
Watts v Rake (1960) 108 CLR 158

PARTIES: Donald Maxwell Ramsay (Applicant)
Commonwealth of Australia (Respondent)

FILE NUMBER(S): SC 20094/02

COUNSEL: D Priestley (Applicant)
S A Woods (Respondent)

SOLICITORS: Hollows Lawyers (Applicant)
Blake Dawson Waldron (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 14 December 2006

20094/02 Donald Maxwell Ramsay v Commonwealth of Australia
JUDGMENT

1 BELL J: This is an application to extend the limitation period to permit the applicant to bring proceedings against the defendant (the Commonwealth) for damages for psychiatric injury arising out of the Melbourne/Voyager collision.

2 The applicant’s statement of claim was filed on 20 March 2002. A notice of motion claiming an order under s 60G of the Limitation Act 1969 (NSW) (the Act), that the limitation period for the cause of action in the proceeding be extended for such period as the Court determines, was filed at the same time as the statement of claim.

3 The applicant was born on 1 November 1943. The collision occurred on 10 February 1964. The limitation period for his cause of action expired on 11 February 1970.

4 The applicant pleads the following particulars of injury in his statement of claim:

(a) severe shock;

(b) severe anxiety and depression;

(c) claustrophobia;

(d) difficulties with sleeping, nightmares and flashbacks;

(e) irritability and fatigue;

(f) night sweats;

(g) difficulty in concentrating;

(h) moods swings, frustration and isolation;

(i) post-traumatic stress disorder;

(j) emotional detachment, insecurity and lack of confidence;

(k) attempts to medicate himself by heavy use of alcohol with consequential impairment of body function;

(l) hypertension;

(m) acid reflux;

(n) anxiety disorder;

(o) generalised anxiety disorder;

(p) panic attacks;

(q) adjustment disorder;

(r) reduced ability to engage in sexual intercourse;

(s) obesity.

5 It is the applicant’s claim that, but for the collision and the psychiatric injury that he sustained as a result thereof, he would have attained commissioned rank in the Royal Australian Navy (the Navy) and remained in the service until retirement at the age of 55 years. His claim for damages includes for economic loss by reason of impairment of his capacity to earn income and he claims damages for the lost chance that he would have remained in the Navy until qualifying for the Defence Force Retirement and Death Benefit entitlements.

6 Section 60G(2) of the Limitation Act provides:

(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.

7 The applicant bears the onus of establishing that it is just and reasonable for the Court to order that the limitation period for his cause of action be extended. Before the Court may give consideration to this question, it is necessary for the applicant to pass the threshold test posed by s 60I(1) of the Act, which provides:

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).

8 “Personal injury” is defined in s 11 of the Act to include any impairment of the physical or mental condition of a person.

9 The applicant swore an affidavit on 18 March 2003, in support of the present application (the first affidavit). He grew up in Perth and is the eldest of two children. He describes a satisfactory childhood. He completed Junior Year at high school at the age of 15 years. He wanted to join the Navy. He had performed relatively poorly at school in earlier years and his results had not reflected his ability. In his final year at school his mother warned him that the Navy would not accept him unless his performance improved. He went on to come top of his class. He was a member of the Cub Scouts and later, the Sea Scouts.

10 He joined the Navy on 3 January 1959 for a 12 year term. He was posted to HMAS Nirimba, where he trained as a fitter and machinist.

11 In his first affidavit the applicant describes his life in the Navy prior to the collision as fulfilling. He was a modest smoker, rolling his own cigarettes and consuming one packet of tobacco (2 ounces) per fortnight. He says that his drinking was moderate; a few drinks of whiskey and soda at weekends.

12 The applicant’s first ship was HMAS Melbourne, to which he was posted in January 1963 as an Engine Room Artificer. At the time of the collision the applicant was engaged. He married his fiancé in December 1964. They had three children, a girl born in 1966, and two boys born in 1967 and 1971.

13 At the time of the collision the applicant was in his mess, which was located on the starboard side of the Melbourne above the waterline. He describes his experience of the collision in his first affidavit: There was an horrific noise of screeching metal coming from the forward section of the ship accompanied by the sound of escaping steam. He was thrown backwards onto the floor of the mess. He thought that the ship had run aground. He picked himself up and heard “collision stations” sounding. He next remembers being on the deck in a location immediately above his mess. He was able to see the Voyager parallel to the Melbourne, some 200 to 300 metres away. Searchlights from the Melbourne were lighting the Voyager’s hull. He believed that there was a distinct likelihood that the Melbourne was going to sink. He was aware that there had been a massive collision and that the Melbourne had sustained bad damage.

14 The applicant helped put a scaling net over the side of the Melbourne and he climbed over the side and down the net and helped survivors from the Voyager climb up it. They were covered in oil and blood, some were quiet, while others were swearing and cursing at the crew of the Melbourne, accusing them of chopping their ship in half and killing their mates.

15 The applicant has no memory of what he did in the immediate period after helping at the nets. Later he recalls being in the engine room while efforts were being made to shore-up the Melbourne’s bow. During this exercise the Melbourne’s engines were running beyond normal operating temperatures and the applicant recalls being concerned that they were overheating.

16 The applicant says in his first affidavit that up until the time of the collision he slept well and that within a couple of months of it he started having very bad dreams and nightmares which disturbed his sleep on most nights. Typically, he experienced a feeling of drowning or of being confined in a small area. He says that he would feel panic and claustrophobic. He describes waking in a cold sweat on such occasions. He refers to a frequently recurring dream of a wall of water in the shape of a ball coming down to engulf and swamp him; a dream that was experienced several times per week. The disturbance in his sleep made him irritable and tired during the day.

17 The applicant continued as a member of the Melbourne’s crew until February 1966. Subsequently he was posted back to the Melbourne in June 1968 and remained a member of its company until his discharge in February 1971. He says that he had become more and more apprehensive and anxious about being on board the Melbourne, particularly when at sea below the waterline.

18 The applicant referred to other incidents during his naval service which he acknowledged had caused him stress:

§ service at sea during the Malaya confrontation;

§ service on board the Melbourne during the Viet Nam war in the waters off the coast of Vietnam, when he saw and heard bombing onshore;

§ an incident when he was sprayed by hot water;

§ service on board the Melbourne when it collided with the USS Frank E Evans cutting the latter ship in two.

19 It is the applicant’s account that following the collision his smoking and drinking habits progressively increased. In his first affidavit he says that he cannot say exactly why that was so. This assertion was the subject of focus in cross-examination and I will return to it.

20 Following his discharge from the Navy the applicant obtained employment with Shell as an inspection technician. He remained in this employment for 23 years. In 1992 he accepted an offer of voluntary redundancy. He says that he was by this time finding it difficult to cope with the stresses of work. After leaving Shell the applicant acted as a consultant for a number of years. He is now retired.

21 The applicant describes himself as having become an aggressive, irritable individual who made life a misery for his family. By the mid-1980’s he says he was smoking between 50 and 60 cigarettes a day. He had progressed to drinking every night and was consuming a bottle of whisky every three to four days, together with a cask of wine and a bottle of bourbon per week. He says that his personality changed and that his bad temper and drinking led to his first wife leaving him in early 1988. He subsequently remarried and appears to have a stable and successful second marriage.

22 The applicant was warned by his doctor in the late 1990’s that he was at risk of serious ill health if he did not stop drinking. Since that time he has reduced his drinking. In 1998 he successfully undertook hypnosis to give up smoking.

23 In late 1999 the applicant spoke to a friend about his various health problems, which included blood pressure, diabetes, shortness of breath, back problems, his temper and “my general attitude to life” (first affidavit at [20]). The friend was an Advocate for the Department of Veterans’ Affairs. The Advocate helped him to prepare a claim for a disability pension under the Veterans’ Entitlements Act 1986 (Cth).

24 The claim is dated November 1999. Among the assertions made by the applicant in the claim form are the following:

· PTSD resulted in high alcohol & tobacco consumption

· PTSD resulted in divorce in 1989

I found it necessary to move out of Sydney to remove myself from familiar surroundings & past relationships.

Excessive alcohol consumption, heavy smoking & my inability to communicate affected my personal relationships which ended in divorce.

I terminated my community involvements so that I didn’t have to relate to too many people outside my immediate family.

Since being involved in frightening experiences whilst scuba diving under HMAS Melbourne I have a deep-seated fear of drowning & being crushed & have not scuba dived since. I was a ship’s diver trained to located limpet mines.

Increasing degeneration of my lower back has resulted in me having to give up sports such as bowling & squash, which I enjoyed & to ensure I’m available for (fortnightly) chiropractic & (weekly) massage sessions to control the pain.

These periods are extended if pain is controlled.

Broken sleep occurs (at least 4-6 times per night) because of back pain results in tiredness & irritability which strains personal relationships.

No counselling or assistance given to re-establish in civilian life – this resulted in difficult family relationships & eventual divorce in 1989. This effect was primarily due to HMAS Melbourne’s involvement in Vietnam & the collisions at sea with Voyager & Evans.

25 The applicant says that the Advocate helped him to complete the claim form and that it was the Advocate who used the expression “PTSD”. At the time he submitted the claim form the applicant had not been diagnosed with PTSD and his friend did not explain to him what it was.

26 The Department of Veterans’ Affairs sent the applicant for an assessment to Dr Hutchinson, a psychiatrist. The applicant was seen by Dr Hutchinson in January 2000. He was critical of Dr Hutchinson’s report, which he considered contained a lot of inaccuracies. His friend arranged for him to see Dr Bob Anderson, a psychiatrist. The applicant commenced seeing Dr Anderson in July 2000. Dr Anderson has been treating the applicant since that time. The applicant states that after seeing Dr Anderson a number of times he began to understand what was wrong with him: Dr Anderson told him that he believed he had suffered a post-traumatic stress disorder (PTSD) as the result of his experience of the collision. The applicant says he did not know until this time, which he puts as late as 2002, that he suffered a psychiatric illness or that it was caused by the Melbourne/Voyager accident. The applicant states, “I had until then thought this was just the way I was” (first affidavit at [20]). He recognised he was drinking too much, but he considered that he did not have the willpower to stop. He did not know why he had consumed alcohol excessively, other than feeling that alcohol had helped to make his life bearable.

27 On 13 April 2000 the Repatriation Commission determined to reject the applicant’s claim for PTSD and alcohol dependence. The Commission assessed the applicant’s disability pension at 90 per cent of the General Rate.

28 In a letter dated 12 January 2001, Mr Esson, an Advocate writing on the applicant’s behalf, addressed a number of submissions to the Department of Veterans’ Affairs concerning the rejection of the applicant’s claim for PTSD. The applicant acknowledged in evidence that the letter had been prepared on his behalf and that he agreed with its contents. The letter was trenchantly critical of aspects of Dr Hutchinson’s report. The letter includes the following assertions:

Max served with me on board HMAS Melbourne during the Vietnam conflict and was a member of my Mess of which I was the President. We all suffered during that period and I know how much Max was affected and I have no reason to disbelieve his claim.

…

The collision between HMAS Melbourne and HMAS Voyager, and between Melbourne and USS Frank E Evans, along with the near collision of the aircraft carrier USS Ranger in deep fog in the South China Sea, only aggravated a pre-existing post-traumatic stress disorder which Max had from his eligible war-service period in Vietnam and Malaya.

29 On 8 March 2001 the Veterans’ Review Board reviewed the Repatriation Commission’s determination. The Board’s reasons for decision are in evidence (exhibit 15). The Board reviewed the report of Dr Anderson dated 22 November 2000 and appears to have accepted that the applicant was suffering from PTSD and alcohol dependence/alcohol abuse. It noted at [24]:

Defence Force Compensation Act

Veterans’ Entitlements Act 1986

[25] On this evidence the Board cannot find that the post-traumatic stress disorder suffered by the Veteran was war-caused.

30 The applicant says that in February 2002 he heard of Mr Forster, a solicitor, who may be able to assist him gaining compensation for his injuries arising out of the collision. The applicant says that until he read the draft statement of claim prepared by his counsel, he did not know that his injuries were caused by the acts or omissions of the Commonwealth in relation to the collision. He knew that the Voyager should not have cut across the Melbourne, but he did not know what had gone wrong on the Voyager to cause the accident or what led the accident to happen (first affidavit at [25]).

The expert evidence

31 A number of medical reports are annexed to affidavits sworn by the applicant in the proceedings. These include the report of Dr Hutchinson, dated 17 January 2000. Dr Hutchinson’s report was prepared for the Department of Veterans’ Affairs in the context of the applicant’s claim for a disability pension. It is to be observed that the applicant had an interest in placing emphasis in his application for a pension on incidents that occurred during his eligible (non peacetime) service. He acknowledged as much in the course of his cross-examination.

32 Dr Hutchinson did not assess the applicant as suffering from PTSD or any condition described in DSM IV. Dr Hutchinson assessed the applicant’s disability under the Guide to Assessment of Rate of Veterans’ Pension at zero.

33 In setting out the applicant’s service history in his report Dr Hutchinson noted that the applicant had not been fired upon while in the Navy. He went on to refer to the applicant’s role as a member of the crew of the Melbourne at the time of the collision. The history that he recorded included the following:

The boatmen were bringing in survivors and he was at the scaling ladder helping them to get on board the aircraft carrier. He was surrounded by oil and some floating dead bodies which he did not touch. He said the frightening thing was that he felt the Melbourne was almost sunk.

34 Dr Hutchinson also noted that the applicant had been on board the Melbourne at the time of the collision with the USS Frank E Evans and that the applicant had not described the latter collision as having been frightening.

35 Dr Hutchinson reported:

He says he breaks down and cries easily. Previously a ship’s diver, he is afraid to go under water. He puts that down to a night in 1968 when they were searching for mines on what was probably a training exercise and the man at the bottom panicked and got lost. He gets a flashback and frightening feeling when something reminds him of the Voyager crashes. He could not think of any other problems.

TREATMENT

Max has never had or sought any treatment, as he did not think that the experience had affected him at all. He had always regarded himself as a macho man but he feels the problems have been coming out for about 20 years. He got upset when reading in the newspaper that a man, an alcoholic, who had been with him on the Voyager, had been given an compensation payout of half a million dollars.

36 Dr Hutchinson expressed the following opinion concerning the collision and a diagnosis of PTSD:

Although it must have been unpleasant to serve on the Melbourne, which ran over two other ships, I did not feel that it was sufficient to cause him intense fear, helplessness or horror. In fact, he was quite active during the rescue operation. It was unpleasant but I do not think it was sufficient to cause post-traumatic stress disorder.

37 Dr Bob Anderson wrote a report, dated 22 November 2000, which was addressed to the applicant’s treating general practitioner, Dr Pfleger in which he commented on Dr Hutchinson’s report. In Dr Anderson’s opinion Dr Hutchinson’s report did not do justice to the applicant’s case. He observed that it contained numerous omissions. In Dr Anderson’s opinion there is no doubt that the applicant has PTSD, alcohol dependence, nicotine dependence and secondary depression from PTSD. Dr Anderson commented that the applicant has the whole gamut of symptoms of PTSD, including concentration and short-term memory problems and that “there is no doubt that Mr Ramsay is severely affected by his Navy service” (report 22/11/2000 at 1). Dr Anderson continued:

Looking at his problems from a strictly legalistic point of view, there is some difficulty in separating what is due to eligible service and what is due to peacetime service. Some of the incidents in peacetime, such as the Voyager disaster or the collision of the Melbourne with Frank E Evans are of no interest to the Department of Veterans’ Affairs. However, they are traumatic and serve to lower the threshold at which the veteran breaks down with symptoms. I support Mr Ramsay in his application before the Veterans’ Review Board for acceptance of the conditions mentioned above. Because of these conditions he is in my opinion totally and permanently incapacitated.

38 Attached to Dr Anderson’s report to Dr Pfleger are copies of his clinical notes, which contain a detailed history, much of which is related to the diagnostic criteria for PTSD. The content of the clinical notes is significant to the issues raised by the application and I will refer to them in some detail.

the applicant started drinking whiskey excessively after he finished at HMAS Nirimba in 1962. After service in April/May 1963 he used to wipe himself out when on leave;

PTSD - criterion A - the person has been exposed to a traumatic event in which both of the following were present:

(1) The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

Witnessed bombing of Vietnam (while on Melbourne).

Observed various floating debris including what appeared to be bodies in the water. I was told later these could have been booby-traps.

Underwater floodlights surrounded the ship with charges dropped at regular intervals to discourage divers. The shockwaves reverberated throughout the hull. During this time I was often in the engine room where there was always the risk of being burnt by super heated steam in the event of an explosion or pipe rupture.

Stress induced by being closed up at action stations for long periods especially during the Malaysia confrontation and not knowing if we were to be shelled from the shore.

(2) The person’s response involved intense fear, helplessness or horror.

I experienced intense horror and morbid fascination, knowing that death and destruction was occurring just a few kilometres away. I had a morbid fascination only at the time, as I did not know this could have been a direct threat until after the event. I was not personally involved in any action in this situation.

I was terrified when the charges were detonated when I was on duty below the waterline. The vibrations and reverberations from the explosions through the hull were frightening. This to me was real as the intention of the underwater floodlights was to illuminate enemy scuba divers and prevent them from attaching limpet mines and the explosions could have been actual mines. As one of the engineering staff, I spent the majority of my on-watch time below the waterline.

We patrolled various areas in SE Asia during confrontation. There was regularly an aircraft on the catapult ready for instant launch. Gun crews were closed up and we were at action stations. We were expecting enemy fire from the shore, especially when we were traversing narrow straits between islands.

I was a ship’s diver but since leaving the RAN I have not dived again. I became terrified of drowning after an incident in which our string of divers became entangled. I also still have a great fear of becoming trapped under water and not being able to escape.

…

For 10 to 15 years after Vietnam and Malaysia I had a recurring dream, which used to wake me in a cold sweat and was, I believe, related to those times. Huge rolling balls on what looked like water slide with wave after wave of water from which I was unable to escape overwhelm me. It was as though I was drowning and being crushed at the same time.

…

Before going into a war zone my smoking habits changed markedly in that I increased by (sic) cigarette intake at least fourfold from a normal 20 to 25 per day. In addition my alcohol intake would also increase and I would drink to excess when I went ashore. This drinking problem still exists, however, I am now trying to control it since my doctor diagnosed me with Chronic Hepatitis and told me that I had a limited life span if I did not do something about it.

…

I have avoided thinking about the times I spent in the SE Asia war zone and speak very little about them and in fact, try to avoid discussion of those days if at all possible. It is a past period from which I want to divorce myself.

…

I have found it impossible to recall the names of any of my shipmates who were involved with me or even the precise times that we were involved in the hostilities.

…

Prior to Vietnam I was extremely interested in and regularly went hunting and shooting (I owned my own firearms) but since learning of the atrocities that occurred, I lost all interest in the sport and got rid of all of the equipment. It was no longer a sport.

…

After returning from active service I found that I could not relate to people as I had previously. This manifested itself most obviously with my family and especially my wife. I became introverted and self-centred and lost the love I once had for others. This effect snowballed to such an extent that it finally resulted in my wife leaving me in 1988. The stresses I had built up in the relationship were too much for her to handle.

…

There have been many times especially in the 1970’s and 80’s when I had to forcefully drag myself back to the present after my thoughts drifted back to my Navy days and SE Asia. I became quite morbid during these times. Recently these periods have significantly reduced.

…

My heart still pounds for a long time after any sharp clang or explosion as it automatically reminds me of the underwater charges being detonated when we were anchored off Vietnam. The reverberations and unpredictable timing were really frightening.

“Other contributing factors”

I was aboard HMAS Melbourne when she hit and sank HMAS Voyager off the NSW coast in 1964 and also aboard when she sank the USS Frank E Evans in the South China Sea in 1969. I was involved with the rescue of survivors from the Voyager and came face to face with mutilation and death at that time. In the Voyager disaster the Melbourne also nearly sank.

There was another incident in the South China Sea when the Melbourne almost cut in half a much larger US aircraft carrier (USS Ranger).

In 1968 on board Melbourne I damaged my back whilst working in the engine room. This injury has resulted in a slow but steady deterioration of mobility. At the time of this incident the Medical Officer told me to “stop malingering” and to return to work.

My Vietnam and Indonesia/Malaysia experiences, together with the above, resulted in me prematurely leaving the Navy. When I joined the Navy I wanted to make it a fulltime career but I decided I no longer wanted to tempt fate and I took my discharge as soon as my initial engagement was completed (January 1971).

39 Dr Anderson prepared a further report for Dr Pfleger, which is dated 23 January 2001. This report appears to have been prepared in connection with the applicant’s application, which was then pending before the Veterans’ Review Board. Dr Anderson noted that the applicant’s PTSD had not been accepted by the Department of Veterans’ Affairs as service related in the sense of being as the result of eligible service and not the result of peacetime service. In this context, he stated:

In my opinion Mr Ramsay is suffering from post-traumatic stress disorder of the delayed onset type. As there were numerous stressors in his antecedent history, both from operative service and peacetime service it is impossible to differentiate the contribution of one stressor from another. There is however, no doubt, that his operative stressors both contributed to his PTSD and was an aggravation of a previous vulnerability.

40 Dr Anderson provided a report, which is dated 27 June 2005, in response to a request made by the applicant’s legal advisers in connection with the present proceedings. In this report Dr Anderson clarified aspects of the applicant’s history recorded in the clinical notes to which I have referred. This was based on an interview with the applicant that was conducted on 18 May 2005. On this occasion the applicant gave a history that he did not drink while he had been stationed at Nirimba, and, additionally, that the date of his service at Nirimba had been wrongly recorded in the earlier clinical notes. He said that he had not drunk while on board any ship during the period of his service.

41 Dr Anderson’s conclusions set out in the June 2005 report are:

The history of Mr Ramsay’s eligible and peacetime service has already been detailed in other correspondence and has been commented upon by the Veterans’ Review Board. I am confirmed in my opinion that Mr Ramsay has post-traumatic stress disorder, alcohol dependence, nicotine dependence and secondary depression from post-traumatic stress disorder, initially as a result of his exposure to severe stressors in connection with HMAS Melbourne/Voyager Disaster and much later on from his exposure to the collision between HMAS Melbourne and USS Frank E Evans. In between these times he had eligible service in the Far Eastern Strategic Reserve and in Vietnam, which no doubt, aggravated his post-traumatic stress disorder and other conditions.

42 Dr Kingswell, a psychiatrist, provided a report to the External Review Officer of the Department of Veterans’ Affairs, which is dated 21 December 2001. This report appears to have been prepared at the request of the Department in connection with the applicant’s application for a disability pension. It is to be noted that the history obtained by Dr Kingswell included:

Mr Ramsay was asked to describe those incidents that occurred during his naval experience that he thought were related to his psychological ill health.

Mr Ramsay thought the most importance incident was the sinking of the Voyager in 1964. Mr Ramsay was aboard the HMAS Melbourne when it struck the Voyager. He was employed as an Engine Room Artificer.

he had been noticeably unwell since the late 60’s or early 70’s. He had noticed that he had become withdrawn and would not talk to his family. Often he said he was verbally aggressive to his wife and children.

Mr Ramsay described the onset of post-traumatic stress disorder in the late 60’s or early 70’s. This disorder is realistically linked to his experience aboard the HMAS Melbourne with respect to the two incidents, the sinking of the Voyager and sinking of the Frank E Evans. Mr Ramsay has not described incidents that have occurred during relevant service that would satisfy the definition of severe stressor as understood in the Statement of Principles.

43 Dr Kingswell concluded that the applicant’s experience (other than the Voyager and Frank E Evans collisions) had obviously caused subjective concern, but there was no evidence that he was actually confronted with a threat of serious injury or death in engagement with the enemy or that he witnessed casualties or atrocities. Dr Kingswell noted that the applicant’s onset of PTSD was some five or more years after his last period of relevant service in Vietnam in 1965. Dr Kingswell considered that the applicant described symptoms of PTSD, associated with his involvement in the Voyager and Frank E Evans disasters. The applicant had not been preoccupied with, or experienced intrusive recollections of, other naval experiences. It is to be noted that Dr Kingswell appears to have accepted that the applicant suffers from PTSD.

44 Dr Gelb, a psychiatrist, prepared a report dated 11 November 2002 in connection with the present proceedings, at the request of the applicant’s solicitors. He administered the Structured Interview for PTSD in the course of his consultation with the applicant. He reports taking histories from the applicant’s wife, Valerie Ramsay, and his sister, Sue Hogue. The latter gave an account of a change in the applicant’s personality following the collision. Dr Gelb also refers to information that he received from Lionel Amos, who was a naval apprentice at the same time as the applicant, and from retired Lieutenant Robert Holme, the applicant’s former superior officer. Dr Gelb had access to the reports prepared by Dr Anderson and the clinical notes which detail the various stressful episodes to which the applicant had been subject during his naval service.

45 Dr Gelb concluded that the applicant had experienced significant trauma in the aftermath of the Voyager collision and that his symptoms at the time indicated the presence of an acute stress reaction, which progressed to the development of a PTSD. In Dr Gelb’s opinion the condition was exacerbated by the applicant’s Vietnam service and by the collision with the Frank E Evans.

46 Dr Devilly, a psychologist, provided a report, dated 16 May 2002, in connection with the present proceedings at the request of the applicant’s solicitors. His report was based upon a six-hour consultation, which comprised a clinical interview and the completion of a self-report questionnaire. Dr Devilly stressed that the applicant had been forthcoming in answering any questions that were asked of him and that he had not appeared to hide information which might “damage his cause” (at p 23). This impression was consistent with the results of psychological testing. Taken together, Dr Devilly opined, the reliability of the information supplied by the applicant was quite high. He concluded:

Mr Ramsay reports symptoms that are consistent with mild PTSD (chronic, with delayed onset) and a secondary dysthymic disorder and history of alcohol abuse. A differential diagnosis of alcohol dependence would require further assessment, although it is highly likely. It is also my opinion that his obsessional traits could be seen as a method of obtaining control and order in his immediate environment and so is subsumed within the PTSD spectrum.

It is my opinion that his post-traumatic functioning is related to the HMAS Melbourne/HMAS Voyager collision. However, Mr Ramsay was also on board when the HMAS Melbourne collided with the SS Evans under very similar circumstances. Whilst Mr Ramsay reports that this second collision was “as bad” he also reports that this “did not imprint on [him] as much”. This is inconsistent with the literature which shows that previous trauma and/or neurosis acts as a vulnerability for future trauma or that the future trauma exacerbates an already acquired presentation. I find it highly unlikely, therefore, that the collision with the SS Evans had no contributory effects to his presentation.

47 The Commonwealth obtained a report from Professor Tennant, the Professor of Psychiatry at the University of Sydney. Professor Tennant’s report is based upon a review of the documentary material furnished to him in connection with the present application. Professor Tennant notes that all the diagnoses have been made on the basis of self-report many years after the supposed trauma. He observes that despite retrospectively claiming symptomatology, the applicant appears to have done nothing about it despite such apparently severe symptoms. In Professor Tennant’s opinion, the key features of the symptomatology (assuming it reaches the threshold for PTSD) would suggest that the reliving and avoidance phenomena may relate much more specifically to war experiences than to the experience of the Voyager collision.

48 It will be recalled that Dr Hutchinson’s history included that the applicant had been prescribed antidepressant medication in the 1970’s. The applicant did not recall giving this history to Dr Hutchinson. He had no recollection of taking antidepressant medication in the 1970’s.

Section 60I (1)

49 Counsel for the applicant submitted that the applicant satisfied each of section 60I(1)(a) subparas (i) – (iii). In his submission, the applicant did not know that he had suffered personal injury - in that he did not know he had suffered from a recognised psychiatric condition - until he commenced treatment with Dr Bob Anderson.

50 In Commonwealth of Australia v Smith [2005] NSWCA 478 Handley JA observed at [16]:

Thus the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by “professional medical opinion”. Accordingly a plaintiff, such as Mr Smith, who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury.

51 The Commonwealth relied on the assertion in the claim form that the applicant had been aware that he was suffering from PTSD in 1971. The applicant says that this was an assertion made with the benefit of hindsight and was not a statement that in 1971 he understood he was suffering from PTSD. I accept that is so. It will be recalled that the expert evidence is that the applicant suffered from late onset PTSD. His symptoms are described as having their onset in the late ‘60’s early 1970’s. I do not take the assertion in the application as an admission of knowledge of the existence of a frank psychiatric illness as at 1971.

52 In the Commonwealth’s submission the applicant knew of his psychiatric illness not later than during his employment with Shell in the 1980s when he lied to medical examiners about the existence of his symptoms. The evidence on this topic was as follows:

Q. At that time when you were employed by Shell you chose not to reveal those matters to any doctor, is that correct?

A. Yes.

…

53 The applicant’s evidence on this topic did not involve an acknowledgement that he knew that his symptoms amounted to a psychiatric illness. The evidence may be relevant to a consideration of whether he has satisfied the requirement of paragraph (1)(b), but I did not understand it as qualifying the applicant’s assertion, that he thought “this was just the way I was” (first affidavit [20]).

54 In oral evidence the applicant said that it was difficult to recall when he had started drinking every day. He knew that he was drinking daily, probably from the mid-70’s onwards. He went on to clarify this, saying that on a weekly basis he would have been drinking at least a bottle of whiskey, four or five litres of wine and probably half a bottle of bourbon (T 10-11). Throughout this time he was working five days a week with Shell. His drinking did not interfere with his work. He did not drink before work or at work.

55 It seems to me that the applicant did not know that he had suffered psychiatric injury until he consulted Dr Anderson. He knew that he had nightmares, and that he drank and smoked heavily and was irritable, but in his mind these were features of his personality. If the applicant did have knowledge that he suffered from a psychiatric injury at an earlier time, it was at the time he discussed his situation with the Advocate in late 1999.

56 Turning to paragraph (a)(ii), I am satisfied that the applicant was not aware of the nature or extent of any frank psychiatric injury until after he commenced his treatment with Dr Anderson. I consider it likely that he became aware of the connection between his psychiatric condition and the Commonwealth’s act or omission at the same time. He may not have been aware that he had the right to commence proceedings until he consulted Mr Forster, but he knew that the Voyager should not have cut across the bows of the Melbourne. It seems to me that the applicant understood the collision was the result of a negligent act or omission for which the Commonwealth was responsible and that the experience of the collision was the cause of his psychiatric condition from the time he was informed of the association by Dr Anderson.

57 I am satisfied that the applicant did not know or was unaware of each of the matters in paragraph(a)(i) – (iii) at the expiration of the limitation period and that he brought the application within 3 years after he became aware of all 3 matters.

58 In the Commonwealth’s submission, the applicant failed to pass the further requirement of subsection (b) in that his application was not made within 3 years after he ought to have acquired the relevant knowledge or awareness. In this respect the Commonwealth noted the observations of Basten JA concerning paragraph (b) in Commonwealth of Australia v Shaw [2006] NSWCA 209 at [31] and [32]. I will set these out together with a number of further passages in his Honour’s reasons:

Telstra Corporation Ltd v Rea

Central Asbestos Co Ltd v Dodd

for him

Commonwealth of Australia v Smith

[62] A second possible reason for not taking earlier steps to apprise himself of his medical needs and possible legal entitlements may be found in the psychiatric illness about which he complains. Thus, failure to talk about the traumatic event may be either a symptom or a result of post-traumatic stress disorder. The policy underlying paragraph (b) would not be furthered by the exclusion of plaintiffs on the ground that they have not taken relevant steps in their own self-interest, where the injury itself may be a significant cause of the failure to take such steps.

[73] There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne/Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result, but that, where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome. ...

59 In considering what the applicant ought to have known it is appropriate to take into account the features of the psychiatric condition, to the extent that these bear on the consideration of the steps which he ought to have taken and which might have led to him acquiring the knowledge. Professor McFarlane, a psychiatrist, in an affidavit that was sworn on 3 March 2004 gives an account of the features of PTSD:

[4] Avoidance behaviour is a common symptom of post-traumatic stress disorder, although the specific type of avoidance behaviour is idiosyncratic and personal to each sufferer. Two possible manifestations of avoidance behaviour are avoidance of treatment and avoidance of disclosing symptoms to doctors.

…

[6] Sufferers of post-traumatic stress disorder commonly have a lack of objectivity about their condition. A further complication is that sufferers often have erroneous subjective beliefs about the cause of their problems.

[7] Persons suffering from mental illness often do not seek treatment for their anxiety symptoms. Rather, sufferers of post-traumatic stress disorder and other psychiatric disorders may seek treatment for related physical symptoms such as high blood pressure, which is in fact a physical indicator of the sufferer’s mental stress. Many of these physical symptoms would fall into the “mild to moderate” category, and could not be classed as “severe”.

[8] There is a significant pool of psychiatric morbidity in the community where people do not seek help for a variety of reasons. People have a propensity to minimise their psychiatric symptoms and to present them in other ways. People frequently ignore and deny their symptoms.

[9] The stigma associated with mental illness and the fear of diagnosis are further deterrence to seeking treatment for anxiety symptoms.

[10] Psychiatric morbidity is very commonly missed in general medical practice settings. General medical practitioners often fail to diagnose post-traumatic stress disorder.

60 Professor McFarlane’s evidence is, as the above passages make clear, an opinion as to the commonly observed features of PTSD. He has not assessed the applicant.

61 Dr Devilly, in his report of 16 May 2002, comments in addressing criterion F (impairment) for the purposes of DSM IV: “the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning”:

Mr Ramsay’s history indicates that he has worked continually since his discharge from the Navy. In this sense, he does not display vocational impairment. He has remarried and maintained an intact relationship. However, he reports that his first wife left him due to “drinking, smoking, and [his] attitude in general”. He also reports a restriction in his ability to go places where he “is not in control”. If these habits are related to the collision, which I believe is likely, then it could be argued that he demonstrates a history of impairment. He is currently retired. However, it should also be noted that it is common for veterans with traumatic stress symptoms to be able to mask their problems while working, these problems affecting interpersonal functioning and becoming more evident once retired or unemployed.

62 In considering whether the applicant has satisfied me that he brought his application within 3 years after he ought to have known each of the matters in paragraph (a)(i) – (iii), it is necessary to have regard to the actual qualities of the applicant. These include his psychiatric condition of PTSD and alcohol abuse. It does not seem to me that the applicant turned a blind eye to his need for psychiatric assistance. As I have stated, I accept that he thought these symptoms were part of his make up. Despite his difficulties, the applicant was a person who maintained regular employment with Shell for some 23 years and went on thereafter to run his own consultancy. He knew he was a heavy drinker and that he was a bad sleeper and that he was susceptible to stress but he did not appreciate these characteristics were indicative of psychiatric illness. He did not tell his employer about the extent of his drinking or other of his characteristics that he judged might affect his prospects of advancement. He would not be the first employee to be less than frank with his employer in describing the extent of his drinking and sleep disturbance. His ability to function satisfactorily at work and maintain employment seems to me to point away from a conclusion that his awareness of his drinking, sleep difficulties and stress ought to have led to him seeking out medical assistance and, thus, coming to learn of his underlying psychiatric condition at an earlier time. Taking into account the expert evidence to which I have referred, I do not consider that the applicant ought to have acquired knowledge of his psychiatric condition (or had an awareness of the maters in (a) (ii) and (iii)) at a time prior to 3 years before making his application.

Section 60G

63 I turn now to a consideration of whether the applicant has established that it is just and reasonable for the limitation period for his cause of action to be extended.

64 At any trial, the Commonwealth’s negligence will be admitted. The issues will be whether the applicant has suffered psychiatric injury and, if so, its causation and damages.

65 The collision occurred more than 40 years ago and after this lapse of time some prejudice to the Commonwealth in the conduct of its defence is to be presumed. The Commonwealth submits that it faces significant actual prejudice should the applicant’s claim be permitted to go forward. The starting point for this submission is that the diagnosis of PTSD is dependent upon the self-report of the sufferer. In the Commonwealth’s submission, the applicant was an unsatisfactory witness who made deliberate attempts to downplay features of his history in the course of his oral evidence. In addition, he is submitted to have made assertions in his first affidavit that involved a deliberate attempt to mislead.

66 A prime thrust of the attack on the applicant’s evidence was his unwillingness to acknowledge that he had been critical of Dr Hutchinson for failing to give weight in his report to his stressful experiences in the Vietnam war zone. On more than one occasion when pressed on this topic the applicant responded by saying that his complaint was that Dr Hutchinson had failed to assess him an accordance with the Department of Veterans’ Affairs requirements. It was apparent that the applicant was most unhappy with what he considered to be the poor quality of the assessment of him made by Dr Hutchinson. It is to be observed that Dr Hutchinson’s report appears to have contained a large number of factual errors. The applicant, who was generally measured in his responses, replied with considerable emotion about Dr Hutchinson that, “he treated me as a second-class citizen” (T 76.11). It was apparent that the applicant felt considerably aggrieved by the way in which he had been treated by Dr Hutchinson. I did not consider that he was seeking to mislead the Court in his evidence on this topic.

67 Counsel for the Commonwealth placed emphasis on the applicant’s unwillingness to acknowledge the level of stress that he had reported to doctors on earlier occasions in giving an account of his service history (in support of his application for a disability pension). It was put to him that he had felt frightened while he was in a war zone, to which he responded that he had been “anxious” (T 15-16). His attention was directed to the history he had given Dr Anderson of observing floating debris, which he had been told were booby-trapped bodies when the Melbourne was standing off the coast of Vietnam. It was suggested to him that this had caused him “some stress” to which he responded “not really. Nothing came close to the ship” (T 17.2). The applicant agreed that he had told Dr Anderson that he had been terrified on occasions on the Melbourne during the Vietnam engagement when charges were detonated (T 18.34). It was put that one of the reasons for his terror was that he did not know whether the explosions he was hearing were mines detonating. He denied this, saying that he believed there would have been a vast difference between a mine exploding and the sound of charges being detonated as a defensive measure (T 20.5). In counsel’s submission, this was plainly inconsistent with the history taken by Dr Anderson and recorded in the clinical notes. I accepted the applicant’s answer as a truthful one.

68 It is true that in his first affidavit the applicant asserted that following the collision his smoking and drinking habits progressively increased by a substantial amount and that “I cannot say even now exactly why that was so, and I certainly did not know why then” (at [17]). In oral evidence he agreed that he had always known the reasons why his smoking had increased at various points in his naval career (T 36.14) and that he had known this at the date of swearing his affidavit (T 36.34).

69 In his first affidavit the applicant described the onset of nightmares as being “within a couple of months” of the collision (at [13]). In the course of cross-examination it was put to him that he did not start having dreams or nightmares until after his service in Vietnam. He responded, “yes, I’ll go along with that” (T 60.51).

70 I reject the submission that the applicant was a witness who was deliberating seeking to mislead the Court. He may be criticised for the expansive claims in the affidavit to which I have referred but in oral evidence he impressed as a person doing his best to give a truthful account. At the commencement of cross-examination he acknowledged that it would be fair to say that there were times when he had stressed a particular incident in his past over another (T 13.10). This was in the context of the assertions that he had made in support of his application for a pension. In the course of cross-examination he made a number of concessions. He agreed that in the period after the Voyager collision his drinking had not been to excess (T 41.14). He acknowledged that the experience in the waters off Vietnam (when the charges were detonated) had been terrifying. He also acknowledged that he had been terrified of drowning on an occasion when a string of divers became entangled (T 20.25).

71 Important to the Commonwealth’s case on prejudice is Dr Anderson’s initial report of the difficulty of separating out the different factors that are causally related to the condition of PTSD.

72 In Commonwealth of Australia v Smith, Handley JA observed (at [12]):

the collision with HMAS Voyager and its immediate aftermath present as the obvious cause

73 In the Commonwealth’s submission, this is a very different case to that with which the Court was concerned in Smith. In this case there are a number of incidents apart from the Voyager collision which might be the cause or a contributing cause of the applicant’s PTSD. If the claim is permitted to be litigated the Commonwealth faces the difficulty more than 40 years after the collision of endeavouring to disentangle the various incidents that may have given rise to any psychiatric illness that the applicant is found to have suffered: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.

74 The Commonwealth points to the evidence that the first stressful incident to which the applicant was subject was the Malayan confrontation in 1963, an event that preceded the collision. Counsel also points to the practical impossibility of finding witnesses who could now comment on the applicant’s response at the time to events, such as the incident in which the divers became entangled; the explosion of the charges when the Melbourne was standing off Vietnam; the spray of hot water and the like.

75 In Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541, McHugh J said at 555:

Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s actions. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or real possibility of significant prejudice.

76 In Commonwealth v Smith Santow JA discussed the concept of “significant prejudice” (at [128]):

South Western Sydney Area Health Service v Gabriel

Limitation Act 1969

“the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”

Holt v Wynter

McLean v Sydney Water Corp

Gabriel

Parsons v Doukas

Motor Accidents Act

77 As will be observed from the summary of the medical evidence upon which the applicant relies, he is said to have suffered from late onset PTSD. It is not suggested that his symptoms came on prior to the late 1960’s or early 1970’s. In oral evidence he acknowledged that his sleep disturbance did not come on until after his experience in Vietnam. He does not maintain that any increase in his drinking followed upon the Voyager collision. It seems to me that the Commonwealth has not been deprived of witnesses, or contemporaneous records, that would bear relevantly on the issue of the causal significance, if any, of the other stressors to which the applicant has been subject.

78 The applicant may have tended to place emphasis on his war experiences at the time of his application for a pension from the Department of Veterans’ Affairs and on the Voyager collision in connection with the present application. Nonetheless, he impressed as honest in acknowledging that tendency: (T 73.34-37). The question of whether he suffers from PTSD is a matter for expert evidence. The material adduced by him in support of the application suggests that he has a more than arguable case that he does suffer from that condition. I consider the Commonwealth has the ability to adequately test the diagnosis and to explore the factors apart from the Voyager collision that may have caused it.

79 There is evidence that a number of naval records relating to the applicant’s service have been destroyed. He annexes to his first affidavit copies of documents, including his naval historical record; which details his awards and decorations; courses undertaken; leave; medical surveys; promotions and postings. Also attached to his first affidavit are records of his assessments of his character and efficiency in the period prior to the collision and testimonials of his sea service completed by supervising officers for the period between January 1963 and August 1970. A variety of references and certificates recording his progress and his naval educational file are in evidence. His complete naval medical record is also available. As his counsel acknowledges, there is nothing in the surviving naval records after the Voyager collision, which is suggestive of any deterioration in the applicant’s performance or other sign of psychological difficulty.

80 There is a gap in the available medical records from the date of the applicant’s discharge from the Navy in 1971 until 1991 save for the assessments made by the medical examiners at Shell. The applicant has supplied a comprehensive account of his medical attendances between February 1971 and 2003 (affidavit sworn 22 June 204 at [10]). He states that he did not receive medical treatment relevant to his claim for injuries in the period 11 February 1971 to April 1991.

81 The applicant’s economic loss claim has not been particularised. Records are available to establish his earnings throughout the 23 years of his employment with Shell. After he left that employment he was self-employed as a consultant. He has provided copies of income tax returns for this period. The Commonwealth did not contend that it faces prejudice in making an assessment of the economic loss component of the applicant’s claim.

82 In my opinion a fair trial may still be held between the applicant and the Commonwealth. I am satisfied that should the claim be permitted to go forward the Commonwealth will not suffer significant prejudice in its defence. In the circumstances I am persuaded that it is just and reasonable to extend the limitation period to allow the applicant to bring his claim against the Commonwealth arising out of its admitted negligence.

ORDERS

1. Pursuant to s 60G(2) of the Limitation Act 1969 the limitation period for the cause of action in this proceeding is extended to 20 March 2002.

2. The costs of the applicant’s application are costs in the cause.

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Citations

Ramsay v Commonwealth of Australia [2006] NSWSC 1389

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

2

Commonwealth of Australia v Smith [2005] NSWCA 478

Commonwealth of Australia v Shaw [2006] NSWCA 209

Watts v Rake [1960] HCA 58

CITATION:	Ramsay v Commonwealth of Australia [2006] NSWSC 1389
HEARING DATE(S):	21/11/06, 22/11/06, 23/11/06
JUDGMENT DATE :	14 December 2006
JUDGMENT OF:	Bell J at 1
DECISION:	1. Pursuant to s 60G(2) of the Limitation Act 1969 the limitation period for the cause of action in this proceeding is extended to 20 March 2002; 2. The costs of the applicant’s application are costs in the cause.
LEGISLATION CITED:	Limitation Act 1969 Veterans’ Entitlements Act 1986 (Cth)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 Commonwealth of Australia v Shaw [2006] NSWCA 209 Commonwealth of Australia v Smith [2005] NSWCA 478 Purkess v Crittenden (1965) 114 CLR 164 Telstra Corporation v Rea; Smith per Santow JA at [103] Watts v Rake (1960) 108 CLR 158
PARTIES:	Donald Maxwell Ramsay (Applicant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	SC 20094/02
COUNSEL:	D Priestley (Applicant) S A Woods (Respondent)
SOLICITORS:	Hollows Lawyers (Applicant) Blake Dawson Waldron (Respondent)