Smith v The Commonwealth

[2004] NSWSC 873

CITATION:	Smith v The Commonwealth of Australia [2004] NSWSC 873
HEARING DATE(S):	31 August 2004, 1 September 2004
JUDGMENT DATE:	23 September 2004
JUDGMENT OF:	Barr J at 1
DECISION:	Limitation period extended to 12 September 2001.; The defendant to pay the plaintiff's costs.
PARTIES :	Neil Patrick SMITH v The Commonwealth of Australia
FILE NUMBER(S):	SC 20766/01
COUNSEL:	Plaintiff: J L Sharpe Defendant: B Toomey QC
SOLICITORS:	Plaintiff: Brian Muir & Co Defendant: Australian Government Solicitor

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

23 September 2004

20766/01 NEIL PATRICK SMITH v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: This is an application by Neil Patrick Smith for an extension of time within which to bring proceedings against the Commonwealth of Australia (“the Commonwealth”) to recover damages for personal injury he says he sustained as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. Mr Smith was a member of the crew of the Melbourne.

2 By s14 Limitation Act 1969 a cause of action founded on tort, as this one is, is not maintainable if brought after the expiration of a period of six years running from the date on which the cause of action first accrues. The statement of claim was filed after the expiration of that period.

3 By s60G the Court 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. By s60I -

(1) A court may not make an order under section 60G 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a) (i)–(iii).
The plaintiff’s case

4 The Commonwealth has admitted that the collision was caused by its negligence. Accordingly, if Mr Smith obtains the leave he seeks, the enquiry will be about whether he suffered damage and, if so, what damage and how he ought to be compensated.

5 Mr Smith pleads the relevant part of his case as follows. This is paragraph 6 of the statement of claim-

As a result of the collision the plaintiff was injured and he has suffered loss and damage aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following-
PARTICULARS OF INJURY
a) Severe shock;
b) Severe anxiety and depression;
c) Claustrophobia;
d) Fear of flying;
e) Difficulties with sleeping, nightmares and night sweats;
f) Irritability, fatigue and headaches;
g) Sexual impotence;
h) Difficulty in concentrating, making decisions and solving problems;
i) Mood swings, frustration and isolation;
j) Obsessive compulsive behaviour;
k ) Chronic post-traumatic stress disorder with numerous re-experiencing symptoms, avoidance symptoms and arousal symptoms;
l) Emotional detachment, insecurity and lack of confidence;
m) Attempts to medicate himself by heavy use of alcohol (to 1997 approximately) with consequential impairment of body function;
n) Hypertension;
o) Acid reflux;
p) Chest pain;
q ) Stomach discomfort;
r) Dysphoria;
s) Cold sweats;
t) Ulcer;
u) Heart Condition.

But for the collision and the injuries sustained the plaintiff would have continued to progress through naval ranks with promotion.

6 Mr Smith was born in 1949 and grew up in Queensland. He left school without formal qualifications and, after an aborted apprenticeship and other efforts to obtain lasting work, he joined the Royal Australian Navy shortly after his seventeenth birthday on 29 June 1962. He showed ability in radio operations and went into that trade. After six months he was promoted to Ordinary Radio Officer. In 1963 he joined the Melbourne in order to undertake further sea training as a radio operator. He took part in a tour of duty in South East Asia during that year.

7 On the evening of the collision Mr Smith finished duty at 8:00pm. At 8:56pm, when the ships collided, he was relaxing in a mess on level 5 on the port side of the Melbourne. Level 5 was down at the water line. There were about fifty sailors in the mess. The whole mess shuddered. The lights went out. The main access hatch door was shut tight from the outside and the occupants could not use it. Mr Smith was very afraid and thought that the ship was going to sink, taking with it him and his shipmates. There was one small hatch through which they could climb out, one at a time. That was what they did. There was pandemonium in the mess for the ten or fifteen minutes that was necessary for that to happen. Smoke and fumes were coming through the ventilation system, adding the fear of fire to the terror of those present.

8 Once Mr Smith got out of the mess he learned that the ships had collided. He made his way to the radio room near the bridge to offer his services, but they were not required. He returned to the flight deck and stayed there for most of the evening, watching the rescue operation.

9 The Melbourne hit the Voyager almost amidships and cut it in two. The bow of the Voyager went to the left of the Melbourne and soon sank. The stern passed down the right side. Mr Smith saw it sink at about midnight.

10 Later on, Mr Smith went below decks and spoke to a number of sailors who had been rescued from the Voyager or from the sea. They were covered in oil and in a bad way. Mr Smith had a good friend, one Walker, who had been with him in recruit school. He died that night. Mr Smith found it hard to believe what had happened. Slowly, news leaked through about the extent of loss of life. Mr Smith went to his bunk at about 2:00am but found it very difficult to sleep.

11 He remembers little of the journey back to Sydney. It was impressed upon him and his shipmates that they should not talk to anybody about the collision once they were ashore. They were told, “You know nothing. Say nothing about what happened. Forget about it and get on with your lives.” No professional support was offered and no particular enquiry was made about any effect the collision and its aftermath might have had on Mr Smith. The subject was simply not mentioned. Those involved were told to “go and get drunk”.

12 Mr Smith kept things to himself as instructed and never spoke about the event to anybody until about two years before he swore his affidavit on 7 February 2002.

13 After a few months the Melbourne returned to sea and Mr Smith remained a member of its crew. He had lost his delight in being in the Navy. He was distressed by having to keep his feelings bottled up and being unable to talk to anybody about what had happened and about the apparent indifference and lack of concern for his and his shipmate’s welfare. No counselling was ever offered.

14 In 1965 Mr Smith married. Five children were born between that year and 1977. He never discussed the collision with his wife and never told his children about it.

15 Mr Smith became depressed and sought solace in drink. Whereas before the collision he had been happy-go-lucky, he tended to become aggressive, moody and quick to anger. His marriage became unpleasant.

16 He lost his motivation to pursue his career and seek advancement. He originally signed on for a nine-year term and when that time expired he re-engaged for three more years. Although he was promoted, he never succeeded to non-commissioned officer rank. He left the Navy after twelve years and took a job as a builder’s labourer. He has been in work ever since, principally, I think, in unskilled jobs. At the time of his affidavit he was a safety officer doing light labouring duties with a building company.

17 Over the years he found his drinking got worse. In 1985 he lost his driving licence, having driven with a very large amount of alcohol in his blood. His wife had to call the police a number of times because of his drunkenness and aggression. In the same year there was an unpleasant divorce.

18 Mr Smith says that he has beaten his drink habit. He has formed a friendship with a woman but cannot commit himself to living with her as he has become a loner. He is unable to be close to people. He has a cordial but strained relationship with his children. He sleeps poorly, though his nightmares are not as bad as they were in the early days. He suffers from claustrophobia, gastric reflux and other complaints.

19 In the middle of 1999 he sought some advice from his solicitor and as a result saw a psychologist, Dr Morris. Dr Morris took a history and tested him. On the Beck Depression Inventory Mr Smith scored what Dr Morris said indicated a potentially serious level of depression. The symptoms included pessimism, loss of pleasure and interest in activities, occasional thoughts of suicide, feelings of agitation, sleep disturbance and irritability.

20 On the Burns Anxiety Inventory the score indicated a severe level of anxiety. Symptoms included feelings of tension, constant worrying and physical symptoms such as stomach discomfort, chest pain, headaches and fatigue.

21 In her report of 30 May 2001 Dr Morris observes that it would have been possible for Mr Smith to cheat in either of those two tests. However, she also administered a Personality Assessment Inventory, a comprehensive evaluation of psychological status and functioning. That is a test at which it is difficult to cheat. In fact it is designed to expose defensive responses, malingering and exaggeration. Dr Morris formed the view that Mr Smith had responded to all the tests in a reasonably forthright manner. I, too, thought him an honest witness.

22 Mr Smith gave Dr Morris an account not substantially different from the one I have related. From that and the results of the tests she had administered Dr Morris came to this conclusion -

From this profile and the description given it is my opinion, as a result of his involvement in the Melbourne-Voyager incident and the lack of appropriate support, Mr Smith suffers from Posttraumatic Stress Disorder, with Delayed Onset (DSM-IV Code 309.81), and this continues to be a major source of psychological distress for him, including a consequent disorder of Major Depressive Episode (DSM-IV Code 296.20), which has in turn caused other major difficulties for him. He has suffered major problems in the areas of family and personal relationships.
It is possible that the onset of symptoms of post-traumatic stress was delayed in this case due to the demands of the situation. Mr Smith, along with others, had been instructed to avoid discussing the event, to put it behind them and to get on with their duties. In light of Ms (sic) Smith’s personality style it is likely that he would have seen the expression of distress as a weakness and developed strategies of avoidance and aggression as means of coping.

Did the plaintiff not know that personal injury had been suffered? Was he unaware of its nature or extent? Was he unaware of the connection between it and the collision?

23 In his affidavit sworn on 7 February 2002 Mr Smith spoke about his symptoms and continued -

However, I did not connect these with the collision nor did I have any idea or notion that they were attributable to a psychiatric disorder resulting from my experience in the collision. It was only in approximately mid 1999 that I came into contact with my Solicitor and talked to him about my symptoms. He recommended I should seek assessment by an expert psychiatrist or psychologist. However, at first I could not accept that I did have such a disorder, and was reluctant to expose myself and dredge up the memories that I had been instructed to block out over thirty-five years before. Eventually in December 2000 I did attend an examination arranged by my Solicitor with a psychologist on the Gold Coast, Dr. Laurel Morris. In the course of that assessment I had to answer a huge number of questions about my life and condition, and I had some discussion with her at the consultation. I have recently read her report dated the 30th May, 2001, and now understand better how the various symptoms from which I have suffered over the many years following the collision are apparently linked to my experience on that night, and my inability to express it or discuss it ever since.

24 It was submitted for the Commonwealth that the position there taken by Mr Smith ought not to be accepted because of a series of answers he gave in cross-examination. They were as follows -

Q. I want to go through your affidavit, ”from the time the Melbourne was in Cockatoo Island and dry dock, from that time onwards so long as I had money available I always felt the need to call into a hotel and have a number of beers most days in order to try to shut out unwanted thoughts”, you heard that?
A. Yes.

Q. You agree with me what you are saying there is from the time the Melbourne was in dry dock you felt a need to drink most days to shut out unwanted thoughts?
A. If I was ashore I would go and have a couple of beers if I had the money.

Q. What were the unwanted thoughts?
A. Unwanted thoughts?

Q. Yes?
A. About the accident.

Q. So you knew that what you were drinking for was to shut out unwanted thoughts, you knew that you drank to shut out unwanted thoughts about the accident?
A. Yes.

Q. Virtually from the time the accident happened?
A. From the time we went ashore.

Q. From the time you went ashore and you must surely have attributed that to the accident?
A. I don’t understand what you mean.

Q. You told us from the time that you went ashore you always felt the need to call into a hotel and have a number of beers to shut out thoughts about the accident?
A. Yes.

Q. The thoughts that you were wanting to shut out was that you had been in the accident, wasn’t it?
A. Yes.

Q. So it certainly couldn’t be true to say that you don’t know that the reason you were drinking in that way was because of the accident, it couldn’t be true, could it?
A. I understand, I think I know where you are coming from, yes, as I say I had limited funds for drinking.

Q. We are talking about your need to drink, do you understand?
A. Yes.

Q. You knew from the start that your need to drink arose from the fact that you had been in this accident, didn’t you?
A. That’s possibly true.
…

Q. And you knew that after the accident you felt a need to call in at a hotel most days?
A. Yes, well when I was ashore, yes.

Q. You couldn’t call in at a hotel when you were at sea, could you?
A. They do have beer at sea at night but not in dry dock.

Q. Over what period of time do you say you turned into a binge drinker?
A. Long time.

Q. What period of time?
A. Possibly even say 1965 through to 1985.

Q. So you weren’t a binge drinker until about 1985?
A. I didn’t say that, it was working up, spiralling, and 1985 was possibly the peak.

Q. Was it to shut out unwanted thoughts of the accident?
A. That was true, yes.

Q. So as you gradually, as you drank more and more heavily you did so to shut out thoughts of this accident?
A. At the start, yes, and eventually you just got accustomed to it, you drank.

Q. What do you mean you got accustomed, to being a binge drinker?
A. No, you shut out the thoughts, you put them in the back of your mind. You never forget it, but it is there, but you go on with your life normally.

Q. You knew, did you not, the reason you were drinking was to shut out thoughts of what happened on 10 February 1964?
A. Originally, yes.

Q. But you knew despite the fact that you thought the intrusive thoughts, you always knew that that was at the back of your mind, didn’t you?
A. Not necessarily, once you start drinking, you keep drinking and its just normal that you carry on.

Q. You are not suggesting that it’s natural that someone who has a few drinks every day is going to become a binge drinker?
A. I didn’t say that.

Q. You said it’s natural, but it isn’t natural to become a binge drinker?
A. Once again like - you start off, you start drinking X amounts. I didn’t have X amount of dollars, I had a young family but when I did have money I would drink.

Q. You say in paragraph 9 of your affidavit -if I could just go back to paragraph 7, you said, “Gradually and without realising I turned into a binge drinker and my habits worsened with the years. It became a natural outlet to try and seek refuge from my thoughts”?
A. Yes.

Q. What you are saying is you became a binge drinker to try to seek refuge from your thoughts?
A. The thoughts you put at the back of your mind.

Q. You didn’t need to seek refuge from them unless they are there?
A. Once you are involved in an accident you never forget that but you do try to live with it.

Q. You are here in court because you say this accident has effectively ruined your life?
A. That is exactly right.

Q. I am pointing out to you that what you said in your affidavit is that it, this drinking, heavy drinking, became a natural outlet to try to seek refuge from your thoughts?
A. OK.

Q. So in other words the thoughts were there about the accident, you knew they were there and were trying to get away from them?
A. Yes, whatever.

Q. No, do you agree with me that is what you mean, what you said in your affidavit?
A. All right, yeah.

Q. I don’t want you to agree with me because I say, I will read you the words again?
A. That’s all right.

Q. “Gradually and without realising I turned into a binge drinker and my habits worsened with the years, it became a natural outlet to try to seek refuge from my thoughts”. These were thoughts about the Voyager disaster, weren’t they?
A. Yes.

Q. So you knew that the reason you were drinking in this way was because of what happened to you in the Voyager disaster?
A. Yes.
…

Q. You were depressed?
A. What year is this?

Q. It starts when you return to sea after a few months and it goes on without a time frame, “I found I lost my zeal for advancement in the Navy and was unable anymore to look with delight to my future career”?
A. Yes.

Q. So you were depressed immediately?
A. That’s what it says there.

Q. It only says that there because you swore to the truth of it?
A. Yes.

Q. Is it true ?
A. That I was depressed immediately?

Q. Yes?
A. Immediately after the accident?

Q. Yes?
A. Certain amount of depression, yes.

Q. And is it true that the only relief you could find from that depression was from drink?
A. Drink.

Q. And you did that regularly?
A. When I had the money.

Q. That depression was because of the after effects of the accident wasn’t it?
A. Yes.

Q. You lost your joy in your job and you felt depressed and you were drinking?
A. Yes.
…

Q. Before your accident were you a person who really enjoyed his life?
A. I certainly did.

Q. And you enjoyed your day?
A. At that point, yes.

Q. Before your accident?
A. Yes.

Q. And so you knew that after the accident when you didn’t enjoy it and you were depressed and were drinking it was the result of the Voyager collision?
A. That’s right.

Q. Did you then tend to become aggressive, moody and quick to anger?
A. Yes.

Q. And did you attribute that to the Voyager?
A. Not at that time.

Q. When did you attribute it to the Voyager?
A. I attributed to my - after I had seen Dr Morris report.

Q. In the year 2001?
A. I didn’t relay it back to the Voyager incident.

Q. Were you aggressive, moody and quick to anger before the Voyager incident?
A. Up to a point.

Q. You were?
A. Yes.

Q. What was it after it?
A. I was probably more aggressive after it.

Q. That’s not what you said. You said, “I had lost my way, I didn’t know what was wrong with me, I was at the time depressed, sad and upset and the only relief I could find was to drink which I did regularly". That is all referring to what happened after the accident?
A. Yes.

Q. And you then went on to say, “As a result I tended to be aggressive, moody and quick to anger”. Are you now telling us that in fact you were like that before the accident, as well?
A. Not entirely, I had a quick temper before the accident.

Q. So you are saying it made you a bit more aggressive, a bit more moody and a bit more angry?
A. Yes.

Q. It didn’t create your conditions, it made them worse?
A. It helped.

Q. The drinking would have helped?
A. Yes.

Q. Did it not occur to you that the connection between the accident and the drinking to shut out thoughts of it was connected to your aggression and moodiness and anger?
A. It certainly didn’t.

Q. It didn’t occur to you at all?
A. Yes. [meaning that it did not]

Q. You just thought it a natural progression in your life?
A. It didn’t occur to me.

Q. It never occurred to you that you had been after this incident, you got more aggressive and so on, but the incident didn’t have anything to do with it?
A. The incident had a certain amount to do with it but I didn’t relate to the whole lot.

Q. What did you relate to?
A. Just drinking, more drinking.

Q. But it was the drinking that was at the heart of it all, wasn’t it, the drinking was at the heart of the aggression, the depression and anger?
A. I get depressed now and I don’t drink.

Q. Go to the end of paragraph 9, you said you deeply regret now your “children couldn’t have a better upbringing because of the person I had become, far removed from the happy go lucky person I was early in the Navy prior to the collision”?
A. Yes.

Q. What you are presenting to the court is before the incident you were a happy go lucky young man and after the incident you were a drinker, depressed, sad, upset, aggressive, moody and quick to anger, “And I believe I was very unpleasant in my marriage because of my temper”?
A. I certainly was.

Q. What you are presenting is a picture in that paragraph, would you agree, of a man after the accident who was entirely different from the one before the accident?
A. That’s right.

Q. Did you tell his Honour that it didn’t occur to you that you were that way because of the accident?
A. That’s right, I didn’t relate to it.
…

Q. Is it true that you always knew that your violence and other things, particularly associated with alcohol, was a reaction to having been in the Voyager accident?
A. I do not think so.

Q. Did you become aware that it was such a reaction at any time before you saw Doctor Morris?
A. Not that I can recall.

Q. I want to read to you two paragraphs from your affidavit of 7 October 2002, paragraph 2, “The first time that I realised that I had a psychiatric illness and that the psychiatric illness ... around June 2001.”
A. Probably about there, yeah.

Q. Then, paragraph 3, “Prior to that time I had thought that my reactions were simply my own way of dealing with the accident as part of the normal reaction”?
A. I think, yes.
…
Q. The thrust of my question is this: you knew, before you saw Doctor Morris, that your reactions were the result of the accident but you did not know they amounted to a psychiatric condition?
A. That is true.

25 It was submitted on behalf of the Commonwealth that the evidence established that Mr Smith’s symptoms began straight after the collision, that he was aware that they were connected with it, that he kept on drinking to suppress disturbing thoughts about it and that he knew that his problem was related to drinking. In the circumstances he knew for the purposes of s 60G that he had suffered personal injury. Then it was submitted that it had not been shown that Mr Smith was unaware of the nature or extent of the personal injury suffered. Rather, the evidence established that he was aware of what was wrong with him. Although he was not aware that it was post-traumatic stress disorder, that was irrelevant. As to para (a)(iii), Mr Smith was well aware of the connection between the personal injury and the collision. During the six years which commenced on 10 February 1970 he was becoming increasingly disturbed, angry and discontented with his work and was drinking heavily and he associated those matters with the collision. For the purposes of para (b) Mr Smith ought to have become aware of all three matters listed in para (a)(i), (ii) and (iii) because, having connected his difficulties with the collision, he ought to have sought medical counselling and psychiatric or other appropriate help. If he had, those advising him would have told him about the connection between the collision and the symptoms he was suffering.

26 Counsel relied on Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443. In that case the members of the Court of Appeal cited with approval the remarks of Clarke JA in an earlier Court of Appeal case, CRA Limited v Martignago (1996) 39 NSWLR 13. In the former case the respondent sustained a neck injury when he was lifting pipes. Afterwards he suffered an injury to his lower back and neck. He claimed compensation from the appellant for both injuries and from a third party for the second. He claimed in an application for an extension of time that he had been unaware until he obtained the opinion of a specialist in May 1992 that he had been suffering from disc pathology in his neck. The question on appeal was whether, upon the earlier expiration of the limitation period, he was or ought to have been aware that he had suffered personal injury and of its nature and extent.

27 Clarke JA, with whom the other members of the Court agreed, observed that it might be accepted that he had not been told directly before May 1992 that he was suffering from disc prolapse and pressure on the spinal cord nerves. So he was not until then aware of the precise medical condition from which he was suffering. However, he did know that he had serious neck problems and he did know that at least one doctor took the view that a spinal fusion was desirable. His Honour concluded that the fact that the respondent was unaware before he received the advice referred to that his spinal cord nerves were caught in damaged discs did not matter because he knew, in broad terms, the condition from which he was suffering. He also knew that his symptoms arose from that condition and the procedures necessary to alleviate it.

28 His Honour approved a statement of Meagher JA in FJ Walker Limited v Webber Court of Appeal 16 November 1989 unreported that an applicant may not know the medical description or diagnosis of his or her condition and yet be unable to establish that he is unaware of the nature and the extent of his injury. His Honour continued at 20 -

The subsection is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is ether (sic) unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, and applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow (for example, osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.
I recognise that I have put the matter very generally. That is because the nature of the factual inquiry is not susceptible to precise definition. The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant inquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.

29 The Court in Commonwealth of Australia v Nelson was uncritical of Clarke JA’s statement of principle. The facts of that case are of no particular assistance. The respondent had been involved in an accident in 1981. His case was that it was not until 1997 that, having read a psychologist’s report, he connected his symptoms with the accident. He failed to make out his case because the Court did not believe him.

30 Relying on the principle explained in CRA v Martignago and applied in Commonwealth of Australia v Nelson, counsel for the Commonwealth submitted that Mr Smith had not made out his case. Counsel gave a hypothetical example of a man who got a bang on the leg and a consequent limp. He limped around and thought that he was getting old, getting a bad leg, but he knew and associated the limp with the injury. He did not know that he had a pathological condition but he associated it with the injury.

31 I do not think that the facts of the present case permit so simple an approach. To my mind, the evidence shows that Mr Smith did not know until he read the opinion of Dr Morris that he was suffering from an injury at all. Resort to examples of simple physical injuries does not help. Obviously, a man who hurts his neck or bangs his leg knows that he has suffered an injury. As the pain continues over the years and his neck becomes stiffer or his limp becomes worse he knows that his symptoms are of the injury. And although he may not understand the physiological process that is taking place or be able to essay a medical diagnosis, he knows in broad terms the nature and extent of his injury, at least insofar as it does not bring with it complications, implications and potentially serious consequences that he does not know about.

32 This case is different. Mr Smith was well aware that he had unwanted thoughts about the collision and that he drank to shut them out. But that does not mean that he knew that he had suffered an injury. He knew that he drank because he was depressed, and by that expression I mean unhappy, because Mr Smith did not know that he was suffering from any illness called depression. Many people drink in response to bad thoughts or unhappiness or to escape life’s burdens and irritations. But they are not ill or injured and they do not think that they are. As a result of the collision Mr Smith lost his enthusiasm for his job. Many people do, often as a result of unpleasant experiences at work, but they are not injured or ill and they have no reason to think that they are. Many people become quicker to anger than they would otherwise be, reacting to unpleasant experiences at work, but they have suffered no injury.

33 None of the symptoms experienced by Mr Smith was likely, I think, to make him think that he had been injured, that it was an aspect of an illness. It is because most people suffer such manifestations without being ill or injured that those matters were unlikely to suggest to him that he was ill or injured.

34 I am satisfied that Mr Smith did not know until he received advice from Dr Morris that he had suffered an injury, let alone what its nature and extent were. It follows that he was unaware of any connection between it and the collision.

Ought the plaintiff to have become aware?

35 It was submitted by counsel for the defendant under para (b) that Mr Smith ought to have become aware that he was suffering the effects of an injury. He knew about the complaints from which he was suffering. He ought to have seen a counsellor or other professional person, and if he had he would have been told that his complaints were the manifestations of an injury resulting from the collision.

36 I thought that the submission that Mr Smith ought to have sought counselling was a courageous one in view of the manner in which he had been treated by his superior officers. The submission must fail because, as I have said, Mr Smith did not realise that he was ill. This was not a longstanding and troublesome pain in the neck or the leg which might reasonably be expected to cause a patient to seek medical help. Because he did not know that he was ill and injured he had no reason to seek medical help.

Is it just and reasonable to extend the limitation period?

37 These conclusions do not entitle Mr Smith to an extension of time. He must persuade the Court that it is just and reasonable to do so. This requires him to prove that no significant prejudice would result to the Commonwealth from the order sought. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

38 The Commonwealth relied on a large number of matters deposed to in several affidavits, all said to show that it would suffer significant prejudice if time were extended. Counsel did not deal with the evidence in detail but referred to it compendiously according to categories listed in a schedule. I shall do the same.

39 Although there were several complaints that Mr Smith had failed to answer requests for further and better particulars, no such complaint was pressed on the hearing.

40 The first category dealt with events that happened before Mr Smith joined the Navy on 29 June 1962. It was asserted that there were no records or independent recollection of Mr Smith’s education. There were no records of his performance at school or names of any persons who attended school with him. There are no records of Mr Smith’s employment history before joining the Navy.

41 It was never explained, and I do not understand, how such matters would be likely to bear upon the issues to be fought at trial. The Commonwealth has lost nothing by their absence.

42 The final submission under this category was that when he joined the Navy Mr Smith was asked whether any member of his family had ever attempted to commit suicide. He gave an affirmative answer. The complaint was that it was not known who the family member was. There were no medical records of the event. Some evidence was put on, reporting by hearsay the opinion of a psychiatrist that the matter might have a bearing on the issues to be fought at trial.

43 Obviously the answer to the question, and the results of any inquiries it may have prompted, gave the Navy no cause for concern about Mr Smith’s suitability for service. The opinion of the psychiatrist was tentative and untestable and I give it no weight.

44 None of these matters raises any significant prejudice for the Commonwealth.

45 The next category dealt with the period of Mr Smith’s engagement with the Navy up to the time of the collision. The complaint was that there were few records, and none evaluating his work performance. Only five supervisors could be identified and none remembered Mr Smith. Medical records were available but evidence from medical officers who treated Mr Smith was unavailable, some officers being unidentifiable because their signatures were illegible, others not remembering him and others having died. There was no record of any complaint of the symptoms of the injury relied on by Mr Smith. People who might have known Mr Smith could not be found or did not remember him. There was no record of his consumption of alcohol. Records had been destroyed in the ordinary course of the Navy’s business.

46 If this case had been brought within a few years after the date of the collision I think it highly unlikely that material of the kind adverted to would have played any part in the trial. The passage of time does not change that. The Commonwealth has lost nothing of significance.

47 The next category concerned the collision itself. The complaint was that there was a lack of witnesses. Forty-seven former sailors had been identified as having been in the same mess and the same branch of the service and as having had the same involvement in rescue operations as Mr Smith. Of them, only twenty-two had been able to be contacted and only eight remembered Mr Smith. A like complaint was made about the identification of personnel who were with Mr Smith in the mess at the time of the collision.

48 As I have observed, the Commonwealth has admitted that the collision was brought about by its negligence. Two Royal Commissions enquired into it and reported on it. To the extent that evidence of the collision itself is necessary there is surely no lack of it. As to evidence of the effect of the events on Mr Smith, it would be surprising if anybody noticed him, so intent must each individual have been on self-preservation. And if anyone had paid attention to him there would be no more to say than that he, like everybody else, appeared panic-stricken.

49 The next category related to the period between the time of the collision and the time Mr Smith left the Navy in June 1974. There were limited records and no independent recollection by personnel. Few of the persons who were able to be contacted recalled Mr Smith. No medical records were available. Navy records had been destroyed.

50 To the extent that Navy records were destroyed the Commonwealth must take the consequences of its own actions. It was obvious from the time of the collision that many hundreds of sailors had been affected and were likely to be affected in the future. Any service that destroyed its records, ignoring the possibility of future claims by sailors claiming compensation, took upon itself the risk that it would become less able to defend any such claim.

51 But the answer to the whole of this category of complaints is that the nature of Mr Smith’s injury is not likely to have been detectable either from records or from contemporary reports of fellow sailors. He did not know that he had been injured. He did not know that he was developing an illness. He was doing what his colleagues were doing, grinning as far as he could and bearing it, going out and getting drunk and not mentioning the collision at all. In the circumstances it would have been surprising if Mr Smith, or for that matter any of his colleagues, had given an account that might have been perpetuated in a record or the memory of a colleague, of the way he was feeling after the collision. It has to be remembered that the instruction which their superiors gave to Mr Smith and his fellow sailors that they knew nothing and were not to talk about the collision was not a piece of friendly advice. It was an order. I accept Mr Smith’s evidence that he never talked about the collision.

52 The Commonwealth has lost nothing because its case would not have been assisted if it had been able to call a succession of witnesses who said that they never heard Mr Smith complain about the effects of the collision. Such of the symptoms as were manifesting themselves during the remainder of his service were not, as I have observed, likely to impress themselves on others because if they had been noticed they would not have been recognised as symptoms of an injury. Moreover, the symptoms would have been no more than any sailor might display from time to time: drinking too much and losing his temper from time to time. Nobody would have noticed his broken sleep. Nobody would have learned about his nightmares. His loss of enthusiasm for his job is not likely to have impressed itself on others.

53 The final category was the period between June 1974 and the present time. As to employment records, Mr Smith had identified ten employers. Three had produced documents in response to subpoenas. Of eleven employers and co-workers, only three remembered Mr Smith to any great extent. Few income tax documents had been provided and no returns after 30 June 1974.

54 As to medical records, there was no record of any complaint of injury until 2000, when Mr Smith’s solicitor referred him to Dr Morris. As to Mr Smith’s social life, only three of eleven neighbours in his “residential area”, knew him to any extent. There was no police record for him. There were no records of alcohol consumption. Mr Smith’s wife had declined to make a statement for the Commonwealth.

55 All these assertions have to be assessed in the light of the real nature of Mr Smith’s claim. He never knew until 2000 that there was anything wrong with him other than that he used to get depressed and angry, that he had lost interest in work, and that until the time he came to grips with his alcohol dependency he drank to cope. It is unlikely that there will be any issue that he used to become angry. There will not be any issue whether he resorted to drink. The Commonwealth has pleaded it. As I have said, these manifestations, now seen to be symptoms of an illness amounting to an injury, would not have been seen in that light by Mr Smith or by those around him. In more recent times, of course, there have been few people around him because he has kept to himself. The symptoms generally, it seems to me, were of a kind that were unlikely to impress themselves upon the attention or memory of anyone coming into contact with Mr Smith. It is true that there is a lack of witnesses, but I think that there probably always was. Insofar as Mr Smith has not produced income tax returns he will make it more difficult for himself to substantiate any claim for economic loss, but that will present the Commonwealth with no particular problem. If Mr Smith’s former wife has declined to supply the Commonwealth with a statement it has lost nothing to which it was ever entitled.

56 The evidence does not enable me to conclude that the Commonwealth has lost nothing by the passage of time but I am satisfied that it has lost no evidence likely significantly to bear upon the issues to be fought at trial.

57 I think it just and reasonable to grant Mr Smith the extension of time he seeks. The Commonwealth has fought the application as a discrete issue and has lost. It should pay Mr Smith’s costs.

58 I make the following orders -

1. Order that the limitation period for the cause of action in this proceeding be extended until the day on which the statement of claim was filed, namely 12 September 2001;

2. Order the defendant to pay the plaintiff’s costs.

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Last Modified: 09/24/2004