Raymond Reginald Donoghue v Commonwealth of Australia

[2007] NSWSC 896

CITATION:	Raymond Reginald Donoghue v Commonwealth of Australia [2007] NSWSC 896
HEARING DATE(S):	30/07/07
JUDGMENT DATE :	20 August 2007
JUDGMENT OF:	Patten AJ at 1
DECISION:	See para 58
LEGISLATION CITED:	Limitation Act 1985 (ACT) Limitation of Actions Act 1958 (Vic) Limitation Act 1969 (NSW) Judiciary Act 1903 (Cwth) Limitation of Actions Act 1623 (Imp)
CASES CITED:	Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Commonwealth v Smith [2005] NSWCA 478 Commonwealth v Shaw (2006) 66 NSWLR 325
PARTIES:	Raymond Reginald Donoghue - Plaintiff Commonwealth of Australia - Defendant
FILE NUMBER(S):	SC 21007 of 2001
COUNSEL:	Mr I Butcher - Plaintiff Mr D Brogan - Defendant
SOLICITORS:	Hollows Lawyers - Plaintiff Australian Government Solicitor - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

20 August 2007

No: 21007 of 01

Raymond Reginal Donoghue
v

Commonwealth of Australia

JUDGMENT

1 By this motion the Plaintiff seeks orders:

“1. That pursuant to Section 60G of the Limitation Act 1969 (NSW) period for the cause of action in this proceeding be extended for such period as the Court determines.
2. Further or in the alternative, an Order pursuant to Section 58 of the Limitation Act 1968 (NSW) that the limitation period be extended for such period as the Court determines.

2 The motion also sought relief in the alternative under the Limitation Act 1985(ACT) and the Limitation of Actions Act 1958 (Vic). No submissions were addressed to me in respect of the Plaintiff’s entitlement to relief under either of those statutes.

3 Sections 58 and 60 G of the Limitation Act 1969 (NSW) (the Act) are respectively as follows:

“58 Ordinary action

(1) This section applies to a cause of action founded on negligence nuisance or breach of duty , for damages for personal injury , not being a cause of action which has survived on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform(Miscellaneous Provisions) Act 1944 , and not being a cause of action which arises under section 3 of the Compensation to Relatives Act of 1897 .

(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:
(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action , and
(b) there is evidence to establish the cause of action , apart from any defence founded on the expiration of a limitation period,
the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly.

(3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired:
(a) before the commencement of this Act, or
(b) before an application is made under this section in respect of the cause of action .

………………………………………..

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. “

4 By virtue of Schedule 5 to the Act the operation of s 60 G is extended to causes of action for personal injuries which accrued before 1 September 1990, if the application is made within the period of 3 years referred to in s 60 I.

5 For the purposes of both s60 G and Schedule 5, the provisions of s60 I are important. That section relevantly reads:

“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).

6 The Statement of Claim filed on 18 December 2001 asserts that the Plaintiff, a member of the Royal Australian Navy was, on the night of 10 February 1964, serving as a member of the crew of HMAS Melbourne when, while on the high seas and as a result of the negligence of the Defendant, its servants, and agents, it came into collision with HMAS Voyager.

7 He claims that as a consequence of the Defendant’s negligence, he suffers mental illness and disability, including post traumatic stress disorder (PTSD). By its defence the Defendant admitted negligence on the part of the officers of both Melbourne and Voyager but did not admit the Plaintiff’s allegations of injury, loss, and damage. The Defendant also pleaded that any injury, loss, or damage was caused or contributed to by the Plaintiff and that, in any event, he failed to take all reasonable steps to minimise the effects of any injury.

8 Further, in answer to the whole of the Statement of Claim, the Defendant pleaded that any cause of action is barred by statute. Reference was made to the Limitation Act 1985 (ACT) to “Section 3 of Imperial Act 21 James 1, Chapter 16” and the Limitation Act 1969 (NSW).

9 During the hearing before me, the Defendant tendered as exhibit 4 a letter from the Australian Government Solicitor to the List Clerk of the court, which inter alia stated:

“The Commonwealth will oppose the Plaintiffs application on the basis that the Plaintiff “ought to have become aware” in 1992 of the injury arising out of the Melbourne/Voyager collision [Limitation Act 1969 Section 60I (b)] and that it is now not possible to determine whether any psychiatric condition from which he may now suffer, was caused by the Melbourne/Voyager collision or some other trauma [Limitation Act 1969 Section 60 G].”

10 Submissions by both Mr Butcher, who appeared for the Plaintiff and Mr Brogan, who appeared for the Defendant, were confined to the issues identified in 9 above.

11 The Plaintiff’s claim for relief was principally based upon his affidavit sworn 4 July 2005 to which were attached a considerable number of documents. Set out hereunder are such parts of the Plaintiff’s affidavit as seem to be relevant to the issues I have to decide:

“2. I was born on 25 June, 1945 at New Norfolk Tasmania.
………………………….
6. From my childhood days, through until the collision, I played football and cricket. I made many friends from my involvement in these team sports. I also enjoyed deep sea fishing and reading the classics. On leave periods whilst in the Navy I enjoyed travelling into town and visiting the tourist sites. I would have an occasional beer, such as at break-up time, but rarely indulged in the consumption of alcohol.
7. I formally enlisted in the Navy on the 2nd of July 1962. I chose to join the Navy because I saw it as an exciting career with opportunities for promotion. I commenced basic naval training at HMAS Cerberus in Victoria. Soon after I was selected for naval airman training and completed training at HMAS Albatross near Nowra in southern New South Wales. I did well in my training and enjoyed naval life and decided that it would be my lifetime career. I gained two and a half months, by way of promotion, achieving Naval Airman First Class on 2 July 1964. As a Naval Airman my duties involved flight deck work.
8. Following my extended period of airman training at HMAS Albatross, my first sea posting was to HMAS Melbourne on 7 January 1964. The first few weeks were extremely enjoyable and fulfilling. I was assigned to damage control, which involves inspecting electrical pumps and fire fighting equipment. We were engaged in exercises off the coast of New south Wales.
9. On the day of the collision I was aboard HMAS Melbourne. I was on duty from 1600 hours to 2000 hours (4.oopm to 8.00pm). After 8pm I used the toilets in the forward bulkhead, had a shower, covered myself with a towel and was on the way to my mess at 2F. I stopped at 4C mess to watch a card game and converse with other sailors. At approximately 2056 hours, there was a sudden loud bang, a tearing, screeching noise and the ship lurched, I was thrown against the bulk head, knocked off my feet, and had the wind knocked out of me. My first thought was that a plane had crashed into the flight deck during the naval exercise. I recall feeling shocked and very frightened. It was not until later when the ship had docked at Garden Island that I realised that the toilets, where I had been approximately 30 minutes prior to the collision, had been completely destroyed. At the time of the collision I was close to the bow, as 4C mess was 15 feet from the damaged section of HMAS Melbourne. The mess became engulfed in what appeared to be smoke, which, in fact, I later discovered to be steam originating from the exploding boilers of HMAS Voyager as they hit the cold seawater. Soon after I heard an announcement over the public address system, “All hand to emergency stations, this is not a drill”. I rushed upstairs to my mess at 2F and got partially dressed. I heard banging noises as I alighted the stairs on my way to the flight deck.
10. I followed other sailors rushing to the flight deck and a petty officer directed me to my emergency station in damage control. I awaited orders. I remained there for approximately 30 minutes before going to my mess to finish getting dressed. I recall being told by another sailor that the Melbourne had “cut the (HMAS) Voyager in half”.
11. From 2 Deck I was horrified to see only half of the HMAS Voyager afloat. I recall helicopters flying overhead. My attention was drawn to desperate yelling of men from the water. The area was lit up and I saw boats assisting sailors from the HMAS Voyager from the water. I was assigned to designated emergency station duties. I recall feeling helpless and terrified for the fate of my fellow sailors. I recall seeing men, covered in oil, with blackened faces, wrapped in blankets, who had been rescued from the water.
12. From midnight on that night, while working my rostered shift, I performed monitoring duties in the Damage Control area. I answered phone calls reporting the condition of the bulkheads.
13. I remember very little of the return voyage to Sydney. The HMAS Melbourne was travelling very slowly to ensure the bulkheads did not collapse. I was unable to sleep at all after ending my watch. I was overwhelmed by the horror of the collision and its aftermath.

14. Prior to disembarking in Sydney, I was instructed, in ‘general order’, that under no circumstances was I, or any of the other men, to speak with anyone about the collision. I had a hell of a fight with my father in March whilst on leave, because I refused to discuss it. I told him that I was acting under orders. I believe that the order not to discuss the collision, which led to the subsequent fight, hurt our relationship. I still regret the episode with my father very much.

15. Upon disembarking in Sydney I was stunned at the sight of the damaged bow of the HMAS Melbourne, and the destruction of the toilets, in which I had been present about 20 minutes prior to the collision. I recall being greatly distressed by the attitude of the civilians and “wharfies” in Sydney towards our men. Harassing, denigrating comments were made to our men. I recall,” killers”, “killing your own blokes..” and “killer ship” being said to members of the crew. I was subsequently involved in a fist fight, where some “wharfie” threatened to “kill the bastards”, referring to some of the crew of HMAS Melbourne. The insults were very upsetting to me.
16. I believe that prior to the collision I was a friendly happy person. However, since the collision, I have often become aggressive, which has prompted my involvement in fights. I was involved in a fight prior to the collision, to which brief reference is made in my naval medical records.
17. I have poor concentration, suffer from crying fits and have thoughts of suicide. I am irritable and have feelings of guilt that I survived while other sailors die.
18. Following the collision, I have frequently had thoughts of the collision and nightmares. The thoughts that come to me involve the men struggling in the water. These images are triggered particularly by steel banging noises. I have a recurrent dream involving me in a steel room with three doors. There is water behind the first door, smoke behind the second dor, and the third keeps banging shut all the time. I have night sweats and I find it hard to sleep. I often awake sweating, thrashing around, and sometimes shouting. I some times dream that half of the HMAS Voyager is floating and the hatches bang.
19. My nightmares would be more frequent following reminders of the collision, and especially if anyone ever mentioned the HMAS Melbourne. I become agitated and start to relive the experience of the collision at night through thoughts and nightmares. I am tired and lethargic during the day, not being properly rested. However, I have found that if I drank alcohol during the evening I am more likely to get to sleep. Alcohol seemed to assist by blotting out my memory of the incident. Now with the benefit of hindsight I can see that I began drinking increasingly larger amounts of alcohol more frequently soon after the collision.
22. Later in 1964 I went home on leave over the Christmas period. Since the collision I had become apprehensive about being at sea, particularly when the ship was underway. I had held no such fears previously, often being involved in deep sea tuna fishing, and enjoying my period on HMAS Melbourne prior to the collision. My attitude had changed totally during 1964. I could not face returning to sea and, therefore, following leave at Christmas 1964 I did not return to the ship and deserted. I was apprehended, charged and sentenced to 42 days detention at Holsworthy.
23. I was released from the prison to the shore base, HMAS Albatross. I had resolved that there was no way that I was ever going to sea again. I applied to the Commanding Officer at HMAS Albatross for an Honourable Discharge. I made an appointment to see him to make the request. However, the request was refused.
27. As I could not obtain an honourable discharge, the only way to avoid returning to sea was a dishonourable discharge. I was determined to leave the navy as I was terrified to go back on board ship. I was in charge of the laundry and in possession of the key. One night I entered the laundry with my key and deliberately took a Burberry coat from the drying room. This coat was clearly labelled with another sailor’s name. I took the coat to my mess and hung it in my wardrobe. I then went to the canteen and smashed a window. I rang the guardhouse and anonymously reported noises in the canteen. I returned and waited in the canteen for guards to investigate. I was arrested, my locker was searched for any signs of contraband and the coat was discovered.
28. I was sentenced to my third term in Holdsworthy on 27 April 1966. I spent 90 days in jail including my 21st birthday.
29. I was released from Holsworthy on approximately 14 July 1966. Upon my release from detention, I was told to pack my bags and was driven to the airport and placed on a plane to be returned home. I had been dishonourably discharged.

12 The affidavit proceeded to recite the Plaintiff’s subsequent employment record with a variety of employers in mainly unskilled or semi skilled work up to the end of 1996. His last employment from June 1993 until November 1996 was as a handyman with New Norfolk RSL. That employment ceased when he was barred from the club for alcohol abuse and told that his behaviour was abusive. Since April 1999, he has been in receipt of a disability pension as a result of “heart problems and general ill health”.

13 The Plaintiff’s affidavit continued:

“54. I continue to use alcohol to help me get to sleep. When happy hour is on at the RSL I will do my drinking at the RSL Club. At other times I drink at home. If I don’t drink I lay awake trying desperately to get to sleep but without success.
55. I have been informed by my doctor that I have suffered some mini strokes, although I am not aware when they occurred. I understand that there are signs of brain damage on a CAT scan taken of my head. This occurred in early to mid 1999 when I was referred to the Royal Hobart Neurology Department for investigation of weakness in my hands. After investigations I was informed by Dr Taylor, neurologist, that my brain damage was probably caused by drinking too much alcohol and he wanted me to stop. I have tried to stop but cannot do so, as without alcohol I can’t get to sleep. I have tended not to admit the full extent of my alcohol consumption when I am asked by doctors for my history.
56. Looking back, I can see that a large part of my life has been ruined by my consumption of alcohol. However, I had no insight as to why I drank. I thought that my reaction to the collision was normal.
……………………………..
61. In approximately October 2000, I had fallen asleep in a chair in the lounge room. My son Leigh entered the room and slammed the door behind him. I awoke with a terrible start, and became extremely agitated, moving towards him in a threatening manner with a raised fist. Fortunately I stopped when he said “Dad, what are you doing? And I saw fear in this eyes. The noise had reminded me of the banging hatch on the Voyager. I was shocked that I had almost attacked my son, I became more depressed and drank more.
62. In early to mid 2001 the President of our local RSL branch, Danny Walsh, suggested I contact David Forster, who is now my solicitor. Upon talking with Mr Forster, I began to understand that due to my behaviour since the collision I should be medically assessed. I agreed to travel to Melbourne to consult with Mr Forster. I attended Mr Robert Wilks, psychologist, in order to be assessed by him.

14 The affidavit goes on to refer to a motor vehicle accident in which the Plaintiff was involved on 4 September 1992. He was in a car driven by his son when it struck and injured a small boy. In relation to this incident, the Plaintiff deposed:

“64. I was troubled for months afterwards by the image of the small boy lying motionless on the roadway, having been hit by the front of our car.
65. For a time after the accident involving the boy, I suffered panic attacks triggered by the sound of tyres screeching or vehicles braking, and by the sight of small children playing on the roadside. I was diagnosed with a post traumatic stress disorder caused by this accident by Dr Sale in his report of 18 August 1993. I brought an action for damages which was settled on 3 July, 1996.

66. I did not discuss the Melbourne/Voyager collision with the psychiatrists examining me for the purposes of my claim for damages because I was ordered not to discuss the collision and I didn’t want to talk about it. I also did not then appreciate the effect of the collision upon me, and they did not ask about it.”

15 In the penultimate paragraph of his affidavit, the Plaintiff said:

“Although I have been in the care of Dr Hummell since July 1992, he has never investigated the causes of my problems other than making the attribution to excessive use of alcohol. I had no insight into the underlying cause of my use of alcohol. I wasn’t aware that I was suffering from brain problems caused by my alcohol addiction until test showed balance problems. “

16 There were three further affidavits of the Plaintiff relied on in his case. The first dated 24 July 2007 contains these paragraphs:

“In paragraph 65 of my affidavit I refer to a motor vehicle accident and a claim for damages, in the accident, in which I was a passenger in a car driven by my son, a child was hit and thrown by the car. The child was, I initially believe, badly injured but fortunately, as I understand, made a recovery. At the time, I was deeply shocked by what had happened. The day after the accident, I went out into the street and saw another accident which could have hurt another child. I returned home. Because of the fear of seeing another accident involving a child, I stayed in the house for a few days; I was effectively housebound. I started having nightmares. I also could not get into a car because of my fears of being involved in or seeing another such accident. I was disabled at the time by this. I sought help from my general practitioner who referred me to a psychiatrist and another psychiatrist. I was prepared to see that psychiatrist because I was effectively housebound and could not get into a car. When I saw those psychiatrists, I talked about the circumstances of the car accident because, at those times, I saw the car accident of what was causing my disability. I did not spontaneously raise the Melbourne/ Voyager accident. But no psychiatrist asked me to deal with it in any detail although that I understand there is some mention of it by Dr Pargiter.
Over the years since the Melbourne/Voyager accident, I had had nightmares and sleeping problems. I also drank to excess. But I did not see those things as indicative of any illness. I saw them as my personal way and normal way of dealing with the problem. I sought to, and succeeded in getting away from the Navy. I had various employment over the years and I certainly was not on the situation but I found myself in soon after the car accident, housebound and scared of travelling in cars.”

17 The second affidavit sworn 26 July 2007 stated:

“I refer to my affidavit of 4 July 2005 and in particular paragraph 62. I was not aware that I had a psychological problem as a result of the Melbourne/Voyager accident until after I had seen (clinical psychologist) Mr Wilks on 21 August 2001.”

18 The third affidavit sworn 27 July 2007 attempted to distinguish between the sequelae of the collision at sea on the one hand and the consequences of the motor vehicle accident on the other. It also mentions again why it was that he did not tell the psychiatrists he consulted following the motor vehicle accident about his experiences while serving on Melbourne. The affidavit contained these paragraphs:

“3. Prior to the car accident in 1992, I had had nightmares and thoughts about the Melbourne accident but I lived with them. They came and went. They were nowhere near as frequent as the ones I had after the car accident. Some things would trigger them. I did sometimes have sleeping problems but not every night or even every week. I never thought they were abnormal. I never thought to raise them with doctors. I did not want to think about the Melbourne or talk about it. I got down sometimes but never sought treatment for it. I drank when I felt down, like lots of people.
4. After the car accident, I became very disturbed by nightmares about the car accident, terror of being involved in other accidents like that, I was terrified of being in a car. I felt guilty because I may have been responsible for my son driving where we were going. I became very anxious and depressed. I lived near a school and was worried about seeing or being involved in another car accident involving children. The symptoms that I developed from the car accident were much worse that what I was suffering from the Melbourne accident in the period leading up to it. In relation to the car accident, I was having sleeping problems every night, much worse that what I had from the Melbourne.
5. I saw my GP after the car accident because I was so disturbed with my sleeping problems and because I was becoming housebound. Dr Hummell gave me tablets but they did not help. I continued to see him.
6. It was Dr Hummel who told me to go to see Dr Weatherly. I did not think to tell the doctors about the Melbourne problems when I was overwhelmed by the car accident problems. Nor did they encourage me to do so. I just did not think that the previous sleeping problems and thoughts about the Melbourne were anything abnormal. I was literally housebound for a while after the car accident. Also I did not want to talk about the Melbourne accident. Dr Weatherly did not help; he felt (sic) asleep.
7. I was then referred to Dr Braganza. I saw him about the car accident. We did not talk about the Melbourne accident.”

19 I should say at once that I do not accept the Plaintiff’s statement at paragraph 66 of his affidavit sworn 4 July 2005 that as late as 1996 he still regarded himself as bound by the order given while he was in the Navy not to talk about the collision. This piece of evidence seems to me to be too inherently unlikely to be credible.

20 Before turning to the oral evidence given by the Plaintiff, I need to make reference to some of the medical evidence supporting his case. In a letter to the Plaintiff’s solicitors dated 18 October 2001, Dr Nick Hummel, his general practitioner since July 1992, said:

“I was not aware of any injury suffered by the patient apart from being knocked over as a pedestrian by a motor vehicle in September 1992 (sic). He has numerous medical conditions, but these conditions have arisen more out of lifestyle, genetic, occupational and certain environmental factors, rather than out of specific injuries. The significant illnesses he has suffered from over the last years since I have been his GP are.
(a) cerebellar ataxia (alcohol related)
(b) chronic duodenal ulceration (largely due to infestation with the helicobacter organism)
(c) chronic neck pain since a work related incident in the 1980’s. He had surgery in 1982 and has had slowly progressive cervical cord stenosis since.
(d) carpal tunnel syndrome (overuse of hand etiology)
(e) Hypertension and a past slight stroke (etiology being smoking /genetics)
(f) Gout (lifestyle/alcohol etiologies play a role here)

21 In June 2002, he was referred by his solicitors to consultant psychiatrist, Dr William Glaser who, in a report dated 13 June 2002, after reciting the Plaintiff’s history as given to him in some detail said, under the heading “Medical and Psychiatric History”:

“As mentioned above, Mr Donoghue suffered some sort of neck and back injury in 1983 as a result of a lifting incident while he was working for a local council. He subsequently required surgery and was able to continue working on his own until 1989, when he was transferred to duties where he could receive more in the way of assistance. He finished up work in 1991, apparently through a redundancy scheme.
Prior to this, in 1966, he had suffered concussion and a fractured finger in a motor vehicle accident when he was a passenger. He appears to have made a full recovery from these injuries.
His psychiatric history involves an episode which occurred around 1993 or 1994. In 1989, following the breakdown of his marriage, he had become “mixed up with a woman half of his age”. He fathered a child by her in 1992 and it would appear that the relationship started to fall apart after this. According to Mr Donoghue, the lady concerned kept on leaving their home in order to live in a half-way house.
Eventually, as part of some sort of legal settlement, he was granted access to the son of this relationship on the weekend.
The actual incident occurred when his older son (i.e. a child of his first marriage) was driving them both, in order to pick up the little boy who was the son of the second relationship. His son accidentally ran over another young boy playing in the street; this lad stopped breathing and needed resuscitation at the accident site.
On the following day, Mr Donoghue experienced further distress when he saw another near-miss accident in eerily similar circumstances; he witnessed another young boy running across a road with a passing car nearly running him down.
At that stage, Mr Donoghue “froze” and had to go home. He experienced considerable sleeping difficulties and eventually had to consult his local doctor who referred him to a couple of psychiatrists.
He saw the first psychiatrist for a total of four visits but was put off because the psychiatrist would fall asleep while they were talking.
The second psychiatrist had more success and they were able to “talk through things…his fear of getting into cars…”. He had consultations with this psychiatrist for approximately twelve months and he “got me back to walking down the street and doing my shopping …I wouldn’t panic if I saw kids running across a road”.
Mr Donoghue did not talk with this mental health professional about the Voyager incident because he “never asked”.
He did not have any further involvement with a mental health professional until he started receiving antidepressant medication from Dr Taylor at the Royal Hobart Hospital, two or three months ago.
Mr Donoghue denied the existence of any other previous physical or psychiatric problems or of any other health condition which might have been the subject of a subsequent insurance or compensation claim”.

22 Later in his report under the heading ”Opinion”, Dr Glaser said:

“This 56 year old pensioner is continuing to experience significant psychiatric problems which have troubled him for some time. The development of his difficulties is a complex matter but there is very good evidence that he started to experience considerable psychiatric disturbance very shortly after he was involved in the Melbourne/Voyager collision in 1964. He had had a terrifying experience of seeing the toilet and showering facilities, which he had been using only a few minutes before the collision, reduced to rubble as a result of the impact. On the night of the collision he witnessed further dreadful sights including the distress of the survivors and his own helplessness and vulnerability were acutely emphasized because of his inability to swim.

Prior to the collision, he had done very well at school and during his naval training. Afterward, his work performance dropped dramatically because of his increasing terror at having to go back to sea. He ended up deserting from the navy to avoid this possibility and when arrested he committed an unbelievably incompetent crime (stealing and the breaking and entering) in order to ensure his conviction and subsequent dishonourable discharge. There matters are all confirmed by his naval record which also, significantly enough, reports marked changes in his behaviour in various postings: until the end of 1964, however, it is reported that he was “slow and requires guidance” with another similar comment thereafter. His final appraisal based on his final four months of service was that he is a “good worker of average ability” but at that stage he was employed in the menial job of “mess sweeper”.

It is clear that his unfortunate discharge from the navy did not result in any relief of his symptoms. He continued to experience job instability, leaving several employers either because he was taunted by his fellow workers as being a “killer” because of his service on the Melbourne or because loud metallic noises (which he experienced, for example, when a load of steel girders on a truck he was driving worked themselves loose) caused intense re-experiencing of the events of the collision and an almost panic-like state.

His irritability, alcohol abuse and job instability all made a major contribution to the break-up of his marriage.

Matters were not helped when he injured his back and neck in an industrial accident around 1983. Nevertheless, he tried to continue working and his symptoms appeared to be relieved by a surgical operation.

Another setback occurred when he was involved in a horrifying motor vehicle accident where he was the passenger in a car driven by his son, which ran down and almost killed a young boy. This was followed the next day by another incident in which the same thing (involving another young lad) almost happened again. He required twelve months of psychiatric treatment for this, with substantial resolution of his symptoms. It is noteworthy that he was able to talk about the problems caused by this particular accident with these psychiatrist involved. By contrast, the events of 1964 collision have remained a continuing source of shame and considerable distress for him. To this day, he still regrets that he was never able to tell his father (now deceased) about the true reason (I.e. fear of going to sea following the collision) for his desertion and subsequent drinking and other disturbed behaviours.

On interview, it is obvious that the collision and its sequelae are still a source of very considerable distress for him, as manifested by his emotional reactions (tearfulness and agitation) when describing the circumstances surrounding the collision and his responses to them.

In terms of his psychiatric state, he continues to suffer from a post-traumatic stress disorder as well as alcohol abuse. Both conditions are of mild to moderate severity and his symptoms include intermittent nightmares, a generally raised level of anxiety, avoidance of reminders of the collision (particularly ships and mates from his navy days), sleep disturbance, significant distress when talking about the collision, concentration and memory difficulties and abuse of alcohol at a level which will definitely compromise his future physical and mental health.”

23 In his evidence in chief, the Plaintiff did not add to what was said in his affidavits. He was, however, cross-examined by Mr Brogan, especially about the psychiatric treatment he received following the motor vehicle accident.

24 He agreed that he saw Dr Weatherly and Dr M C Braganza for psychiatric treatment, the latter “quite a few times” but could not remember when he last saw him.

25 Mr Brogan proceeded to cross-examine the Plaintiff as to the statements in his affidavit of 24 July 2007 quoted above. He was shown the report by Dr R A Pargiter to whom, in May 1994, he was referred by the solicitor for the Motor Accident Insurance Board in connection with the claim he was then making in respect of the motor vehicle accident in the Supreme Court of Tasmania.

26 As I understand it, he agreed with Mr Brogan that it was he who furnished to Dr Pargiter, at least that part of the history recorded by Dr Pargiter which read:

“Nevertheless, he was happy to leave school and start work as a tally clerk at the Maydena sawmill for one year, after which he became a whistle boy and then a choker man in the bush for about one and a half years before being promoted to a log loading machine operator for a few months, when he joined the Royal Australian Navy. After three months training he was sent to the naval airbase at Nowra as a naval airman handling aircraft. Next he did a tour of duty on HMAS Melbourne which was “alright” although he was aboard at the time of the Voyager disaster. At first he thought a plane had crashed on the deck. He rushed up to his berth, got dressed and went to his damage control post and then the flight deck, where he assisted in rescue operation, getting those in the water back on board. A portion of the Voyager was still afloat. There were no subsequent problems other than bad dreams about the survivors for a week. He returned to Nowra in traffic control for six moths and then on a fire tender before doing a second tour of duty on the Melbourne.

27 He could not however, remember any discussion with Dr Pargiter about the Melbourne/Voyager collision but agreed that he only told him the truth. There was then the following exchange:

“Q. And the truth was that you had no subsequent problems after the Melbourne Voyager collision other than bad dreams about survivors for a week, that was the truth, wasn't it?
A. If that's what it says there, but I can't remember saying that to him.

Q. I understand that, but I am asking you a different question. I am putting to you that that was the fact?
A. But I can't remember saying that to him.

Q. I understand.
A. So I don't know whether it is the truth or a lie.

Q. You know whether you had bad dreams about survivors for a week, don't you, after 1964?
A. I can't remember.

Q. You can't remember what sort of dreams you had in 1964 in the week after the collision, is that right?
A. I can't remember.

Q. I am asking you can you remember in the week after the collision in 1964 whether you had bad dreams about the survivors?
A. Yes.

HIS HONOUR

Q. Sorry, yes, you can't remember?
A. Yes, I can remember. “

28 After cross-examining the Plaintiff about the statement in his affidavit of 4 July 2005 that he frequently had thoughts and nightmares about the sea collision and experienced other reminders of it, to the extent that on occasions it was the cause of him leaving his employment, Mr Brogan returned to the history taken by Dr Pargiter. As the transcript records:

“Q. When you went to see Dr Pargiter in 1993, I assume, but you correct me if I am wrong, that these nightmares, memories, feelings of disquiet from reminders of the collision and excessive drinking were all part of your life at the time you went to see Dr Pargiter in 1993?
A. Yes.

Q. And when you went to see Dr Pargiter in 1993, you knew that you were having nightmares about the collision?
A. Yes.

Q. You knew that you were leaving successive employers because of memories of the collision?
A. Yes.

Q. You knew you were drinking excessively in an attempt to block out the memory of the collision?
A. Yes.

Q. And Dr Pargiter asked you specifically whether there were any consequences of your involvement in the Melbourne Voyager collision, correct?
A. Yes.

Q. And you told him none of those matters which I have just put to you, either the nightmares, the employment problems or the drinking?
A. I can't remember saying that to him.

Q. Do you accept that Dr Pargiter makes no mention of them whatsoever?
A. Yes.

Q. And do you accept that therefore of necessity the probability is that you didn't tell him?
A. Yes.

Q. Accepting you have no memory of the conversation which you had with Dr Pargiter, apart from the couple of matters that you have mentioned earlier, is the reason why you didn't tell Dr Pargiter about any of those three matters that I have just mentioned, the nightmares, the employment problems and the alcohol, is the reason simply that there were no nightmares, there was no employment problems and the excessive drinking had another cause?
A. That's not true.

Q. It's not true?
A. No.

Q. Is there any other reason why you can explain why you didn't tell Dr Pargiter about those matters?
A. I didn't think it concerned what I was seeing him about in regards to the car accident.

Q. I understand that, but he asked you specifically about the consequences of the Melbourne Voyager collision. I am asking you specifically why, in answer to that question, you didn't tell him about the nightmares, the alcohol or the employment problems?

A. Because at that time I didn't think it was a problem. “

29 Mr Brogan then cross-examined the Plaintiff about claims in his affidavit of 4 July 2005 that he terminated his employment on a number of occasions because of sequelae of the Melbourne/Voyager collision. There were these questions and answers:

“Q. Do you accept, sir, your own affidavit demonstrates that you had significant problems with employment over a number of years as a consequence of the Melbourne Voyager collision?
A. Yes.

Q. Why didn't you tell Dr Pargiter anything about those difficulties when he specifically asked you?
A. I can't remember him asking me.

Q. I understand that, sir, but you didn't tell him, did you?
A. No.

Q. And you don't have any reason for not telling him, do you?
A. Because I can't - I can't remember him asking me about that question.

Q. So the answer to my question is you can't remember whether or not you did and, if you didn't, what the reason was, is that correct or not?
A. Yes. “

30 The Plaintiff told Mr Brogan that he settled his motor accident proceedings for either $215,000 or $220,000. He thought he received the money about 1997, by which time he thought he had stopped seeing Dr Braganza but was not certain. He said that he could not remember why his treatment with Dr Braganza stopped. There was the following exchange:

“Q. You can't remember whether you questioned why it stopped. Is that what you're saying to his Honour?
A. I just can't remember when I last seen him or when I actually got the money. I can't remember to be perfectly honest with you.

Q. I understand that, Mr Donoghue. I'm asking you a different question. You were receiving treatment from Dr Braganza for a serious psychiatric disorder, correct?
A. Yes.

Q. At some point you stopped receiving the treatment, correct?
A. Yes.

Q. Why did you stop receiving the treatment?
A. I don't know.

Q. No idea?
A. No.

Q. Have you ever questioned anybody about why your treatment for that serious disorder stopped?
A. Because I come right. I can remember now. I come right. I could travel in cars again. I had no problems about travelling in cars or buses. I just come right.

Q. When was that?
A. I think that was in 97, 98, 98.

Q. Don't you remember?
A. No.

Q. You mean to say, do you, that you recovered completely from a serious psychiatric disorder and you can't remember when that happened?
A. I can't remember what year it was, no.

Q. No idea?
A. No, I cannot remember what year it was. “

31 The Plaintiff agreed with Mr Brogan that in mid 1994 he was having symptoms of post traumatic stress disorder in relation to the motorcar accident and at the same time intrusive thoughts, dreams and nightmares about the sea collision. Asked why he did not tell Dr Braganza about the matters relating to the sea collision, the transcript records:

“Q. Is there any reason why you didn't tell Dr Braganza anything about the intrusive thoughts, dreams and nightmares that you were having concerning the Melbourne Voyager collision in June of 1994?
A. No because the dreams I was having about the car accident was entirely different to the dreams that I was having about the Melbourne Voyager collision.

Q. I understand that, but why didn't you tell Dr Braganza anything about the Melbourne Voyager dreams, nightmares and intrusive thoughts?
A. Because I didn't think that was relevant. “

32 The Plaintiff also agreed with Mr Brogan that he did not mention any continuing symptoms arising out of the Melbourne/Voyager collision until he saw Mr Wilks in mid 2001, which was after he had seen his solicitor Mr Forster.

33 In re-examination the Plaintiff told Mr Butcher that in the period 1994 to 1996, his problems related to the car accident were “very severe”:

“A. Well, I was virtually a prisoner in me own house. I was too scared to go down the street to get any groceries because I haven't got a car of me own and I walked down the street for fear of another child running across the road and getting hit again. “

34 In relation to the same period he said in effect that he was only bothered by sequelae of the sea collision “every few months”.

35 Reports tendered from psychiatrists Dr Weatherly, Dr Braganza and Dr Ian Sale all dated in 1993 and related to the motor vehicle accident make no mention of the Melbourne/Voyager collision, although Dr Sale records “he has not previously suffered any psychiatric disorder” and “….. given his previously sound psychological health”.

36 Dr Weatherly recorded symptoms from the motor car accident of “nightmares and flashbacks together with haunting visions of the car driving..” and diagnosed PTSD. Dr Sale noted “he has extremely vivid and distressing memories of the accident and now find it almost impossible to get into a motor car”. He diagnosed PTSD. Dr Braganza reported in November 1993, “He stated that he had been drinking a lot for the past 2 months or so as he had been very stressed out and depressed…… He is unable to drive a car and he has been having nightmares”. He too acknowledged that the Plaintiff “has a history of PTSD following a car accident in September 1992”.

37 Significantly, the letter to Dr Pargiter dated 12 April 1994 from the solicitors for the Motor Accident Insurance Board expressly asked:

“Whether any psychological problems from which Mr Donoghue is suffering are attributable to matters unrelated to the motor vehicle accident in question e.g. to family or personal matters, to any events in the plaintiff’s prior history e.g. in his working environment or during war service, if any, or to the course the legal proceedings have taken and, if so, what is the extent of these problems and what is interplay between them and the problems, if any, which have resulted from the motor vehicle accident.”

38 Dr Pargiter answered this question:

“A careful search for causative factors other than the accident which could have plausibly played a part in the genesis or modification of his condition was made. None convincing were found apart from the symbolic aspects of the accident and perhaps the psychosocial stressors referred to – living and caring for his impaired son.”

39 In his proceedings in the Supreme Court of Tasmania, the Plaintiff particularised his injury as “severe nervous shock”. Those proceedings were settled by a consent judgment dated June 1996 under which he became entitled to judgment for $210,000 plus $10,000 costs.

40 Upon the above summarised facts, Mr Butcher submitted (there being no issue as to breach of duty) that the Plaintiff has at least established a prima facie case that he suffered a recognised psychiatric illness as a result of his experiences during and following the Melbourne/Voyager collision. With that submission I agree.

41 Mr Butcher also submitted that the Plaintiff has established that he did not know he had suffered a personal injury as at the expiration of the relevant limitation period and that, at that time, he was unaware of the connection between any injury and the Defendant’s act or omission.

42 This case requires the exercise of Federal jurisdiction and by virtue of sections 79 and 80 of the Judiciary Act 1903 (Cwth), the law of NSW is applicable. The limitation period which applied at the date of collision was the 6 year period provided for by s3 of the Limitation of Actions Act 1623 (Imp), which may well have expired before the commencement of the Act on 1 January 1971. (See Commonwealth v Smith [2005] NSWCA 478 per Basten JA at para 164).

43 In any event, it was common ground in this case (as it was similarly in Smith) that the limitation period expired very many years before these proceedings were commenced by the filing of a Statement of Claim on 18 December 2001.

44 It was also not disputed that the Plaintiff is entitled under the Act to seek the relief claimed in the Notice of Motion.

45 As indicated above, the issue argued before me was, in effect, whether the Plaintiff became aware or ought to have become aware earlier than 18 December 1998 of all three circumstances listed in s 60 I (1)(a).

46 Mr Butcher identified the Plaintiff’s symptoms arising from the sea collision as:

· aggression

· poor concentration

· irritability, thoughts of the collision

· nightmares, night sweats and sleeping problems

· increased drinking

· apprehension of being at the scene.

47 He submitted that there was no reason for a minimally educated person, without experience of medical issues, to recognise that these symptoms might, although common enough when considered singly, indicate a psychiatric disorder, which he should raise with a doctor.

48 Mr Butcher pointed to evidence that the Plaintiff was “living with “ the problems arising from the Melbourne/Voyager collision but that the problems arising from the motor vehicle collision were quite disabling and required him to do something to alleviate them.

49 The Defendant on the other hand drew attention to the fact that after the motor vehicle accident the Plaintiff sought and obtained psychiatric treatment for a period from about September 1992 until at least January 1996 and probably longer, throughout which period he was also, according to his evidence, suffering symptoms from the sea collision, but about which, if the evidence is to be accepted, he made almost no mention. He mentioned it only to Dr Pargiter when expressly questioned upon the subject and in a way which minimised its impact.

50 By the time of the motor car accident in 1992, it is, I think, clear on the evidence that the Plaintiff knew that he had suffered personal injury as a result of the sea collision and was aware of the nature or extent of it, in the sense of experiencing the symptoms identified in his affidavit. He was also aware of the temporal relationship between his personal injury and the collision at sea.

51 The symptoms which the Plaintiff exhibited after the motor vehicle accident had many similarities with the symptoms he claims to have suffered following the Melbourne/Voyager collision. I infer that during the course of his psychiatric treatment he became aware that he had been diagnosed as suffering from the recognised psychiatric disorder of PTSD and that such disorder was related to the negligent driving by his son of the car which struck the young boy. I find it inconceivable that in the circumstances he would not also have become aware that his symptoms following the Melbourne/Voyager collision constituted PTSD and were similarly connected to the negligence of those responsible for that collision. If he were not so aware, in my opinion, he “ought to have become aware” given that, at the time, appropriate medical advice was readily available to him. In this regard, I seek to apply what was said by Basten JA as to the meaning of “connection” and as to constructive knowledge in Commonwealth v Shaw (2006) 66 NSWLR 325 at paras 20 and following.

52 As Mr Butcher contended and Mr Brogan conceded, it is relevant to consider on the issue of whether the Plaintiff “ought to have become aware”, the possibility that the Defendant’s own conduct made a material contribution to his lack of knowledge. As I have earlier indicated, I am not persuaded that the order given to him while HMAS Melbourne returned to Sydney could have continued to operate upon his mind in 1993, nearly 30 years later.

53 Both Dr Sale and Professor Alexander McFarlane, a psychiatrist, referred in recent reports to avoidance behaviour commonly exhibited by persons suffering PTSD, including a reluctance to speak about the relevant events. No doubt this is so, but it does not persuade me that it rationally explains why, in the context of psychiatric examination and treatment in the period from 1993 to 1996, he would not have thought it appropriate to mention and seek advice upon the somewhat similar symptoms which had troubled him since the collision at sea. Particularly, in my opinion, was this so when he was directly questioned upon the subject by Dr Pargiter. Constructive notice attached to him, in my opinion, at least from his examination by Dr Pargiter in May 1994. I note that he does not seem to have had a reluctance to discuss the Melbourne/Voyager collision and its aftermath with his solicitors in these proceedings or with doctors who have examined him for the purposes of this litigation, including Dr Sale and Professor McFarlane

54 Accordingly, in relation to the Plaintiffs application under s 60 G of the Act, I am not persuaded that he has satisfied the condition set forth in s 69 I (1) (b). For that reason his application under s 60 G must fail.

55 I should add that even if the Plaintiff brought himself within s 60 I, I would not regard it as just and reasonable to grant the extension of time he seeks. In my opinion, as submitted by Mr Brogan, a fair trial would be unlikely, particularly because of the evidentiary difficulty the Defendant would face in separating the PTSD suffered by the Plaintiff as a result of the motor vehicle accident from the apparently less serious PTSD suffered as a result of the collision at sea (Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164)

56 Relief was, in the alternative, sought under s 58 of the Act. It follows from what I have said above that, in my opinion, the Plaintiff has not established that any of the material facts of a decisive character relating to his alleged cause of action were not within his means of knowledge later than1997. That being so, no order under s 58 can assist him.

57 As the law to be applied is that of NSW it is unnecessary for me to consider the Plaintiff’s claims for relief under Victorian and ACT legislation.

58 I make these orders:

1. The Notice of Motion is dismissed with costs.

2. The exhibits may be returned.

oOo