Rock v Commonwealth of Australia

[1999] FCA 1294

FEDERAL COURT OF AUSTRALIA

Rock v Commonwealth of Australia [1999] FCA 1294

MICHAEL JOHN ROCK v COMMONWEALTH OF AUSTRALIA

NG 375 OF 1994

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 375 OF 1994

BETWEEN:	MICHAEL JOHN ROCK Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	WHITLAM J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The limitation period for the causes of action in the statement of claim is extended until 21 June 1994.

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

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 375 OF 1994

BETWEEN:	MICHAEL JOHN ROCK Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

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

REASONS FOR JUDGMENT

1. The applicant, Michael Rock, is an officer in the Australian Navy (“the Navy”). On 20 June 1994 he commenced this action against the respondent (“the Commonwealth”) claiming damages for personal injury suffered as a result of an accident at sea on the vessel HMAS Stalwart on 22 October 1985. The limitation period for his causes of action expired on 22 October 1991. On 29 June 1994 he filed notice of an application for an order under s 60G of the Limitation Act 1969 (NSW) (“the Act”) extending the limitation period.

2. The application is opposed.  However, there is overwhelming evidence that Mr Brandon is suffering from post traumatic stress disorder (PTSD).  Nor is there a serious contest that he has viable causes of action against the Commonwealth in respect of that injury.  He explains his delay in commencing his action on the basis that he was not aware of the nature and extent of his injury until 1992.

3. Mr Rock was the diving officer on HMAS Stalwart at the time of the subject accident.  He was exposed to indisputably traumatic events during a gas leak as a result of which three sailors died.  He lost consciousness several times afterwards and was hospitalised for three days in Darwin.  He was medically examined in November 1985 in view of his acute anxiety state.  The Navy was told that no further investigations were warranted and that psychiatric testing was “contra indicated”.  His symptoms of anxiety were assessed as having “settled completely”.  Mr Rock returned to his ship fully refreshed.

4. On 22 November 1985 he lodged a compensation claim for “toxic gas intoxication” suffered in the Stalwart incident.  This claim was granted and the delegate also determined that Mr Rock had an “acute anxiety state resulting from toxic gas exposure”.

5. Back at sea Mr Rock felt that he was regarded as weak for succumbing to the effects of exposure to the gas.  Nonetheless, when reviewed in November 1986, he was assessed as “well with no further problems”.

6. In December 1988, whilst on a training program at the Naval air station HMAS Albatross, Mr Rock started having nightmares and difficulty sleeping.  He saw a Navy doctor and in January 1989 he was counselled for a stress reaction.  Mr Rock was then referred to a psychiatrist, Dr Pettigrew.  However Mr Rock did not believe that he needed to see a psychiatrist, which he told Dr Pettigrew, and more importantly he did not want to be seen as someone who needed a psychiatrist.  Dr Pettigrew told Mr Rock that he was experiencing a type of post traumatic stress syndrome which was related to the Stalwart incident and that he was going through an adaptive process.  Mr Rock was told that he had a normal reaction to an abnormal situation.  He did not think that he had a psychiatric disorder, and thought that he could cope with the situation.

7. Mr Rock continued to experience nightmares but their frequency diminished.  Navy records reveal that he suffered headaches in September 1989 and a panic attack in October 1990, which he does not recall.

8. In February 1989 Mr Rock lodged a claim for a service pension on account of “mental” incapacity.  He was granted a pension at ten per cent of the general rate, the delegate noting that “his symptoms will probably disappear within the course of time”.  This accorded with Dr Pettigrew’s optimistic advice.  Mr Rock thought that he was “better”, although he was conscious of stress interfering with his life and work.  He was quite adamant that he did not believe or understand that he had a psychiatric disorder at this time.

9. In May 1991 Mr Rock lodged a claim for a pension and treatment in respect of a hernia.  This necessitated a psychiatric re-assessment, as a result of which a medical examiner noted his symptoms were less severe.  His pension was ultimately continued at the same rate on the basis that there were “no present problems” referable to “post traumatic stress reaction”.

10. In December 1991 Mr Rock was posted to the vessel HMAS Geraldton.  After February 1992 his symptoms, in particular his nightmares, re-emerged with an increasing intensity and he was unable to sleep for days at a time.  On a date, which appears to be between 25 and 28 June 1992, Mr Rock reacted completely irrationally to the smell of hydrogen sulphide gas during the testing of a gas detector.  He attempted to bring the ship to emergency stations, was intercepted by the ship’s captain and subdued.  The captain convinced him that he should be taken off the ship.  He was flown back to Perth where he contacted the Psychology Section in the Navy command at HMAS Stirling.  A Navy psychologist, Helen Gavriel, detected features of PTSD and referred him to a Navy doctor, who immediately downgraded him medically to category 7.

11. Mr Rock commenced a long period of psychological counselling, during which he was regularly “re-surveyed” by Navy medical boards.  On 30 September 1992 Ms Gavriel reported “significant gains” and “an overall decrease and improvement in post traumatic symptoms”.  But a medical survey of 23 October 1992 recorded a set back, indicating that the optimistic outlook would have to be revised.  By June 1993 Ms Gavriel recorded Mr Rock’s presenting symptoms as including nightmares, sleeping complaints, constant state of tension, hypervigilance, avoidance, survivor guilt and self-blame and a continuing feeling that he had been “weak”.  She then noted various elements of progress, including “cognitive changes that are realistic and appropriate”.  In stark contrast to the earlier opinion of Dr Pettigrew, Ms Gavriel doubted an “end process” or “cure” for Mr Rock’s PTSD.  Mr Rock said that by this stage he had come to understand that he had a serious psychiatric condition and a real ongoing problem.

12. At the end of July 1993 Mr Rock retained his present solicitor, who commenced in August 1993 an abortive proceeding in this Court in respect of the same claims as this action.  On 15 October 1993 Mr Rock applied for an increase in his disability pension on the ground that his condition had deteriorated.  He was assessed as having PTSD and his pension was increased to forty per cent of the general rate.

13. I have outlined above the bare features necessary to consider the present application.  The documents in evidence contain considerable detail of Mr Rock’s Navy service and medical history.  By August 1995 he was medically classified category 1 and was thus permitted to return to sea.

14. In the present case the threshold question under s 60I of the Act concerns Mr Rock’s knowledge of the “nature or extent” of his injury. At least by the time he saw Dr Pettigrew, which was well within the limitation period, he had been told that he was experiencing a “syndrome” or “reaction”. Counsel for the Commonwealth contends that by that time he knew enough to have justified instituting this action. He faintly submits that the incident on HMAS Geraldton never occurred. He relies in support of this submission on some ambiguous and confusing notes in Mr Rock’s Navy records regarding the sequence of his movement to and from the vessel. He further submits that Mr Rock exhibits a poor memory and was evasive in his answers. I completely reject the last part of that submission. Mr Rock exhibited a painful honesty in the witness box and, in cross-examination, was not at all reluctant to agree with propositions that could hardly help his case. In any event, I accept Mr Rock’s account of the circumstances surrounding his separation from HMAS Geraldton. Ultimately however what is important is the advice he received in mid-1992. Did this merely inform Mr Rock of matters that he already knew or ought to have known because of what Dr Pettigrew told him? I think not. To a layman, even an obviously intelligent Naval officer, the word “reaction” may easily convey a transitory phase from which recovery is expected (as Mr Rock said he anticipated). The word “disorder” perhaps more accurately conveys the ongoing nature of mental illness. In any event, the counselling at this stage certainly made clear to him the nature of PTSD. The “consequences” of Mr Rock’s condition are not “of a kind” that he expected to occur at an earlier time than the middle of 1992: Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 13-14. Nor ought he to have become aware of such matters before that time. I am satisfied that the requirements of s 60I(1) have been met.

15. Mr Rock bears the burden under s 60G(2) of showing that the Commonwealth will not be significantly prejudiced by an order extending the limitation period in the sense that it will not be deprived of the chance of a fair trial. The Commonwealth has not adduced any evidence to establish actual prejudice. The documents tendered in this case reveal the enormous store of information that the Navy possesses about Mr Rock. To the extent that any causation issues are alive, this material ensures that the Commonwealth will not be disadvantaged. In fact, on that issue and, to a large extent on some aspects of the quantification of damages, such as economic loss, the resources available to the Commonwealth put it in a quite superior position. Certainly that would be the case too on liability, which is not admitted (although I doubt that there will be much of a contest about liability at trial). I am satisfied that any presumed prejudice the Commonwealth may suffer as a result of the long delay is not significant and that Mr Rock has made out a case for the exercise of the discretion in his favour.

16. The limitation period will be extended to 21 June 1994, and the relevant pleas raised in paragraphs 6 and 7 of the Commonwealth’s amended defence will be struck out. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             15 September 1999

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