Sandstrom, L.D.W v Commonwealth of Australia

[1994] FCA 86

LEOLD DUNGATE WILLIAM SANDSTROM v COMMONWEALTH OF AUSTRALIA
No. NG564 of 1991
FED No. 86/94
Number of pages - 10
Limitation Of Actions - Torts

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Limitation Of Actions - application to extend time for bringing of an action - s 58(2) Limitation Act 1969 (NSW) - whether "material facts of a decisive character" within applicant's knowledge - s 60F - whether applicant "was unaware of the fact, nature, extent or cause of injury ... at the relevant time" - s 60G - whether "just and reasonable" to extend time - whether reasonable prospect of success - effect of ss 60F, 60G and Cl 4 of Schedule 5.

Torts - claim for and meaning of "nervous shock" - indications of "post traumatic stress disorder".

Limitation Act 1969 (NSW) - s 58(2), s 60F, s 60G, cl 4 of Schedule 5

John Lysaght Australia Limited v Butfield (unreported, New South Wales Supreme Court, Court of Appeal, 8 December 1993)

Jaensch v Coffey (1984) 155 CLR 549

Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310

Campbelltown City Council v Mackay (1989) 15 NSWLR 501

Chiaverini v Hockey and Anor (1993) Aust. Torts Reports Para. 81-223

PD v The Australian Red Cross Society (NSW Division) and Anor (1993) Aust. Torts Reports Para. 81-205

Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430

HEARING

SYDNEY, 9-11 February 1994
#DATE 4:3:1994

Counsel For The Applicant: Mr A.F. Puckeridge QC

With Mr R. Wilkins Instructed By: Maurice May And Co

Counsel For The Respondent: Mr J. McCarthy QC

With Mr P. Jones Instructed By: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.

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

JUDGE1

FOSTER J The applicant in these proceedings brings this notice of motion to obtain an extension of time for the bringing of his action against the respondent, the Commonwealth of Australia, in respect of injury and damage allegedly suffered by him at Maralinga, South Australia in 1956. At that time, the applicant was a member of the Australian Army and was classified as a Class 1 driver in the Royal Australian Army Service Corp. He was performing driving duties at Maralinga, having driven his army vehicle to that area from Hampstead in South Australia. He was present at Maralinga in July 1956 and witnessed the detonation of an atomic device as part of the atomic testing then being conducted. He claims that his exposure to this experience caused him injury and damage in circumstances rendering the respondent liable to him in tort for negligence or trespass.

1. The applicant brings his claim under ss 58(2), 60F 60G and cl 4 of Schedule 5 of the Limitation Act 1969 (NSW). There is no dispute that the question of extension of time to sue is governed by the provisions of this New South Wales legislation.

2. The effect of ss 60F, 60G and cl 4 of Schedule 5 has been expounded by Handley JA in John Lysaght Australia Limited v Butfield (unreported, New South Wales Supreme Court, Court of Appeal, 8 December 1993) as follows:-
   

"The decision of this Court in Electricity Commission v Plumb (1992) 278 NSWLR 364 establishes that, in the case of a pre-1990 injury such as this, a party seeking an extension of a limitation period must establish that he `was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time' (s 60F), the relevant time being `at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted' (s 60I(1)(a)). If these threshold requirements are satisfied the applicant must establish that it is `just and reasonable' that the limitation period be extended (s 60G(2))."

1. Although the applicant's statement of claim asserts that he sustained physical injury through the wrongful acts of the respondent, the only claim now brought is one for the infliction upon him of psychiatric injury. The claim is, therefore, one for "nervous shock", unassociated with any claim for physical damage to the applicant. The claim is for shock occasioned directly to the applicant, not shock resulting from his observation of harm inflicted upon some other person. It is conceded, however, that the basic principles applicable to claims for nervous shock, which have evolved in cases where claims are brought based upon an applicant's reaction to harm caused to another, are applicable to the case brought in these proceedings.

2. Accordingly, I approach the case on the basis that the present applicant can ultimately succeed against the respondent only if he establishes (inter alia) that the respondent caused him psychiatric damage by subjecting him to a "shock". In Jaensch v Coffey (1984) 155 CLR 549, Brennan J, in a passage which has been frequently followed defined "shock", in the context of the tort of "nervous shock", as follows (at 567):-
   

"The sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential."

(See also Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310; Campbelltown City Council v Mackay (1989) 15 NSWLR 501; Chiaverini v Hockey and Anor (1993) Aust. Torts Reports Para. 81-223 (leave to appeal to High Court refused))

1. On behalf of the respondent, it is submitted that the material placed before the Court in this application falls far short of indicating that the applicant can establish a cause of action based on nervous shock. Although, of course, the applicant is not called upon in these proceedings to demonstrate, as he would in a final hearing, the establishment of his claim, nevertheless, in my opinion, he must show that he has a cause of action which is capable of being established and that there is a likelihood of his establishing it with reasonably available evidence. It is not necessary that the whole of such evidence be produced, but its existence must be sufficiently demonstrated. It must be borne in mind that the applicant seeks to bring proceedings, claiming substantial damages against the respondent, for events which happened nearly 40 years ago. If it is to be "just and reasonable" (s 60(G)) to extend the time for bringing the action, then it must at least be demonstrated that the respondent and the Court are not to be troubled with the bringing of a claim, in respect of which, there is no reasonable prospect of success (PD v The Australian Red Cross Society (NSW Division) and Anor (1993) Aust. Torts Reports Para. 81-205; Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430).

2. It may be, of course, that in the application of Brennan J's definition, proper allowance must be made for the nature of the "shock" asserted. In the present case, it is arguable that the observation of the explosion could reasonably be foreseen to have a more than usual impact on an observer as the explosion was an atomic explosion. It could carry with it the fear of damage by resulting exposure to radiation, either directly from the release of damaging rays, or indirectly through contamination by radioactive fallout from the blast. I do not, however, find it necessary to pursue these considerations in the present case.

3. The applicant provided evidence by way of affidavit and oral testimony. The applicant asserts that he was told little or very little of the reason why he was posted to Maralinga. However, it is quite clear that by the time he witnessed the atomic explosion, he was well aware that he was performing his army duties as a driver in connection with the atomic tests then being carried out. It appears that on the day in question, or shortly before, he had driven 15 high-ranking officials to the site from which observation of the detonation was to take place. There were, in fact, three occasions close in time to the final occasion when he drove the officials to the site when, apparently, the detonation was abandoned. Discussion in relation to these "dry runs" which he heard, or in which he participated, clearly informed him as to what was going on.

4. In his affidavit he gave the following account:-
   

"9. On one morning I recall being ordered to drive the three ton truck to Observation Hill as usual. When we arrived at Observation Hill we were just standing around in groups. We were then told over a loud speaker to turn our backs, I could then hear a count down beginning. At the end of the count down (sic) a flash came from the opposite direction from which we were looking. In the opposite horizon to the flash I could see the whole horizon light up like an arc welder. After this flash an announcement came over the loud speaker which said we could turn around. I could see a large fire ball the size of a house which was rapidly expanding. I could see dummy soldiers and buildings being demolished by the blast.

10. At this time I became very frightened. Soon after the sound reached me, it was like a very heavy thunder. Shortly after I experienced the sound a wind blast swept across where we were standing. I believe the blast would have been strong enough to blow a hat of (sic) my head.

11. I was never told of the dangers of radiation, nor was I provided with any protective clothing or radiation device.,

12. At the time none of us knew what to do so we stood there and walked around until we were ordered to go back to camp. I spoke to my fellow drivers, I do not recall their names, but I would talk to them about Hiroshima and how the atomic explosion I just experiences (sic) and the exposure to radiation would effect me in the future.

13. The next day a few of us were required to drive high ranking officials back to the test site. When I arrived there I saw pieces of dummy soldiers and equipment that had been set up for the atomic blast the day before. At the time I was wearing ordinary khaki uniform. After the high ranking officials had inspected the damage we were ordered to drive back to base. I also recall being told at the time that Aborigines had been caught in the test area."

1. In his oral testimony, he indicated that prior to his being present at the explosion, he was aware of the effects of radiation on the victims of the bomb at Hiroshima and he understood that it could cause genetic problems and lead to cancer.

2. It is apparent from the whole of the evidence that the applicant was simply one of a very large group of people, comprising army personnel and civilians, who observed the blast in the way he has described it. He expressed the view that he and others had been placed at a position only five miles from the ground zero point where the device was detonated, this being at a significantly closer distance than the position occupied by the media and others who were observing. He expressed the view that he had been so positioned so that he could be a "guinea pig". The evidence indicates, to my complete satisfaction, that he was not so positioned or so used. He may well have come to hold that view with the passage of time, but it is not based on fact. A photograph was tendered which, on the evidence of the applicant himself, would appear to be one taken of the group of which he was a member whilst actually observing the blast. It is conceded that the group was positioned at Observation Hill, a regular observation site, which was nine miles from the point of the explosion. There is absolutely nothing offered, by way of evidence, to indicate that the applicant could make out a case that he was being used as some sort of guinea pig: that is, that he was being exposed to radiation so that its effect upon him could be later observed and documented. Listening to the applicant's evidence, I found myself driven to conclude that over the years he has become prone to morbid thoughts about the possibility that he may have contracted, or be about to contract, cancer as a result of exposure to radiation and that these thought have coloured his recollection of events.

3. He left the army in 1958 at the end of his period of service because, so he said, he did not like being used as a guinea pig. He further says that he was concerned that if he and his wife had further children, they might be genetically impaired, that he abstained from sexual relations because of this fear, and that this led to considerable problems in the marriage. There is no evidence to support any allegation of genetic impairment or, indeed, any radiation damage at all. Indeed, this is not the case that he seeks to bring. These concerns can relate only to a case that emotional disturbance, resulting from observation of the explosion, foreseeably engendered fears which were themselves disabling.

4. The applicant suffered a diminution of sight in the right eye, commencing in 1971, and ultimately resulting in the total loss of sight in that eye. It seems clear that he attributes this loss to radiation damage occasioned by the explosion. There is no evidence to support this. Nor can it be said that there is anything shown that could reasonably connect it with fear occasioned at the time of the explosion. That he has come to associate it with his presence at Maralinga is not something that can be laid at the door of the respondent.

5. Is there anything in the evidence adduced which could indicate an ability, on the part of the applicant, to make out a case that his perception of the explosion in July 1956 was so distressing as to affront or insult his mind and cause him psychiatric illness? It may be noted that, as a well known fact, shock resulting from an experience may be delayed. The mind may be numbed by the experience with shock, and its concomitant psychological effects, afflicting the victim only at a later point of time. It is to be noted in the present case that, apart from an assertion that he was frightened at the time, there is nothing to indicate that the applicant was seriously disturbed by what he observed, either at the time of the observation or in a reasonable time thereafter. Indeed, he asserts that the very next day he drove to the scene of the explosion and observed the damage that had been done. In both his written and oral descriptions of his observation of the explosion, and the events of the next day, he said nothing to indicate that he was in a shocked emotional state or that the scene of the explosion or its aftermath was in any way a horrifying experience.

6. It is part of the applicant's case that he began to experience nightmares, the content of which related to the explosion and its aftermath of sound and blast. This can be indicative of the condition known as post traumatic stress disorder. Indeed, Dr Dinnen, whose recent report is the only medical evidence in this application, attributes significance to these nightmares as supporting a diagnosis of chronic post traumatic stress disorder in the applicant.

7. Dr Dinnen examined the applicant on 30 March 1993 and furnished a lengthy report on 31 March. Additionally, it is of some significance that the applicant has had training as a psychiatric nurse, considerable experience in that field, and, as he claims, was able to assess his psychological state from time to time.

8. Dr Dinnen's report relates, by way of history, a number of matters referred to by the applicant in his affidavit and oral testimony. Significantly, the doctor records that "the patient told me that his experience at Maralinga, when he was present during the atomic bomb explosion of 1956, did not bother him initially". This accords with the undoubted impression which the applicant gives that, although he described the experience as "frightening", it did not, in itself, occasion him any significant mental or emotional disturbance at the time.

9. So far as the effect of witnessing the explosion is concerned, the applicant told Dr Dinnen, in much the same way as he has told the Court, that he commenced having troublesome dreams in the 1960s, in which he had "the feeling as if he was lying on the desert floor" and "could see the explosion (of the atomic bomb) going on in front of me". The dream equated with the experience "of seeing the ball of flames from five miles away, leading to the mushroom cloud". The dreams which are now very frequent and are associated with insomnia, commenced in 1960, when he was doing mental nursing at Glenside Hospital in Adelaide. He developed and still experiences a very disturbed sleep pattern requiring medication. He also dreams of incidents similar to those occurring the day after the explosion when he visited the site.

10. He told Dr Dinnen that since being contacted by the Atomic Veterans Association members, some 20 years ago, he has experienced constant concern about developing cancer. This concern has been augmented by the receipt of information, through the mail from the Association, which he says leads him to believe that there are now only 35 left of the 500 who witnessed the atomic bomb explosions at Maralinga. It is quite obvious that he has become significantly distressed and depressed by thoughts of cancer, particularly over the last five years. These thoughts have led to suicidal impulses which he has been able to control. He considers that his training as a psychiatric nurse has been of considerable assistance to him in coping with his emotional problems, which are described by Dr Dinnen as "anxiety and depressive symptoms".

11. At the end of his report the doctor expressed the following opinion:-
    

"I believe that this patient is suffering from a chronic post traumatic stress disorder as a result of his exposure to the atomic bomb explosion at Maralinga in 1956. In addition, and related to this condition, he has developed a phobic anxiety disorder related to fear of developing cancer as a result of his exposure to radiation. I have no doubt that this long standing psychiatric disturbance, to which the patient has accommodated remarkably well, is solely attributable to his presence at the atomic bomb testing at Maralinga in 1956. Notwithstanding his excellent adjustment, the condition has caused a significant degree of impairment throughout the years, and now could be rated as causing mild to moderate disability."

1. I feel satisfied that the applicant has problems of anxiety and depression and that he has genuinely come to believe that his problems are attributable to his presence at an atomic explosion at Maralinga. He has also come to believe, quite irrationally on the evidence, that he was selected to be used as a "guinea pig". This belief, quite obviously, adds to his concerns and distress. One can readily sympathise with his condition which must be most disturbing for someone who has obviously been a good Australian citizen in his lifetime of 72 years. However, has he produced evidence capable of supporting a case that he received injury through nervous shock from his witnessing of the atomic explosion in 1956?

2. Although questions of fact going to the existence of a cause of action cannot be finally determined in an application of this kind, unless uncontested, it must, nevertheless, be noted that very strong factual arguments are available to the respondent in support of the contention that no psychological injury was inflicted.

1. It was made tolerably clear in cross-examination of the applicant that his problems with nightmares and insomnia were not sufficient to cause him to bring them to the attention of any medical practitioner in any significant way, notwithstanding that he did, from time to time, obtain prescriptions for medication to assist him sleeping. Moreover, there were other occasions on which it might have been expected that he would have made a complaint about his recurrent nightmares, sleeping difficulties and general emotional concerns in relation to his service at Maralinga but when he nevertheless failed to do so. The official papers relating to his discharge from the army in 1958 make reference to some medical problems which he claimed to be associated with his service. No mention, however, is made of any psychological difficulties. Also, he was requested to answer a questionnaire in 1982 which sought information in relation to any problems experienced by him as a result of service at Maralinga. He made no reference, in answering the questionnaire, to nightmares or insomnia or any symptoms of anxiety.

2. Other matters also emerged in cross-examination. I do not find it necessary to refer to them. Suffice it to say that it is apparent that Sandstrom would have a number of serious factual difficulties to overcome before establishing a cause of action based upon a nervous shock and consequent psychiatric injury, notwithstanding the fairly positive diagnosis of chronic post traumatic stress syndrome made by Dr Dinnen.

3. It may well be that these difficulties should cause this application to fail: there being insufficient demonstration that it is "just and reasonable" to extend time. However, I do not find it necessary, finally, to resolve the question whether Sandstrom has demonstrated the existence of a sufficiently viable cause of action, as it is plain to me that the application must fail for other reasons.

4. I am satisfied that the application cannot satisfy the test laid in s 60F that the applicant be "unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time". Mr Sandstrom, on his own evidence, commenced suffering the problems of nightmares and sleeplessness within three years of leaving Maralinga. His training as a psychiatric nurse, as he freely acknowledged, made him fully aware of the nature of his problems. Indeed, he chose to treat himself without seeking the assistance of the medical profession. As he stated, in cross-examination, he did not require Dr Dinnen to diagnose his problem. He had always been well aware of it and his alleged cause. This knowledge, I am satisfied, pre-existed the expiry of any relevant limitation period. Accordingly, the application fails to comply with the requirements of s 60F.

5. It follows from this awareness of his psychiatric problems that the applicant's submission regarding s 58 must also be rejected. There is simply no evidence that discloses that "material facts of a decisive character" were not, during the relevant period, within the applicant's knowledge.

6. Accordingly, I must dismiss this application. I do so, but in all the circumstances, I do not propose to make any order as to costs.