Commonwealth of Australia v Shaw [2006] NSWCA 209 (1 August 2006)

Last Updated: 3 August 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: COMMONWEALTH OF AUSTRALIA v SHAW [2006] NSWCA 209



FILE NUMBER(S):
40876/05

HEARING DATE(S): 22 June 2006

DECISION DATE: 01/08/2006

PARTIES:
Commonwealth of Australia (Claimant)
Brian John Shaw (Opponent)

JUDGMENT OF: Handley JA Ipp JA Basten JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20444/02

LOWER COURT JUDICIAL OFFICER: Howie J

COUNSEL:
Mr C. Barry QC/Mr S. Woods (Claimant)
Mr I. Roberts SC/Mr J.L. Sharpe (Opponent)

SOLICITORS:
Blake Dawson Waldron (Claimant)
Hollows Lawyers (Oponent)

CATCHWORDS:
LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and HMAS Voyager in 1964 – whether applicant knew he suffered a personal injury – whether he was unaware of the connection between the personal injury and defendant’s act or omission – when he ought to have become aware – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss60I(1)(a) and (b) and 60G

LEGISLATION CITED:
Dust Diseases Tribunal Act 1989 (NSW), s11
Limitation Act 1969 (NSW), ss 57B, 58, 60C, 60E, 60F, 60G, 60I
Limitation Act 1980 (UK), s 14
Limitation of Actions Act 1958 (Vic), s 3
Veterans' Entitlements Act 1986 (Cth), ss 68, 70

DECISION:
(1) Appeal allowed
(2) Order of Howie J made on 14 October 2005 extending the limitation period to the date upon which the statement of claim was filed set aside
(3) In lieu of the orders made below, order that
(a) the application to extend time be dismissed
(b) the proceedings commenced on 4 October 2002 be dismissed
(c) the applicant/plaintiff pay the costs of the Commonwealth in the Court below
(4) The Respondent pay the Commonwealth’s costs of the appeal
(5) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to the costs of the appeal


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40876/05

SC 20444/02

HANDLEY JA

IPP JA

BASTEN JA

1 August 2006

COMMONWEALTH OF AUSTRALIA v SHAW

The respondent, Mr Shaw, sued the appellant, the Commonwealth of Australia, for damages for psychological injuries arising from a collision between the HMAS Melbourne and HMAS Voyager on 16 February 1964. A judge of the Supreme Court extended the limitation period for the action to the date on which the statement of claim was filed pursuant to s60G of the Limitation Act 1969 (NSW). The Commonwealth appealed.
The issues for determination by the Court of Appeal were:

(i) whether the preconditions to an extension of time identified in s60I(1)(a) of the Limitation Act, based on the knowledge of the applicant, were fulfilled;
(ii) whether the trial judge erred in failing to address the normative requirement in s60I(1)(b) that the application for extension was made within three years after the applicant “ought to have become aware” of the matters listed in s60I(1)(a), and
(iii) whether the exercise of discretion under s60G(2) miscarried.

Held by Basten JA (Handley and Ipp JJA agreeing)
In relation to (i):

1. The applicant must be aware that he or she suffered from a recognisable psychiatric illness: at [28]. The finding that the applicant was unaware of the extent of the personal injury suffered for the purposes of s60I(1)(a) should be accepted: [58].

Stingel v Clark [2006] HCA; Commonwealth of Australia v Smith [2005] NSWCA 478, applied.

2. The concept of “connection” in s60I(1)(a)(iii) is inherently elusive, and must take its meaning from the specific statutory context: at [20].

Collector of Customs v Cliffs Robe Iron Associates [1985] FCA 96; (1985) 7 FCR 271; Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153; Taciak v Australian Federal Police [1995] FCA 1481; (1995) 131 ALR 319; applied.

3. Construing the statute favourably to the applicant, but giving it a meaning which is consistent with the statutory purpose and context, “connection” involves an element of causal relationship, of the common sense kind which is relevant in this context, in accordance with the principles explained in March v Stramere (E & MH) Pty Ltd (1991) 171 CLR 506:[25]

Dedousis v The Water Board [1994] HCA 57; 181 CLR 171; Roncevich v Repatriation Commission [2005] HCA 40; (2005) 79 ALJR 1366; Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186; Anderson v Kaufman (1991) 7 NSWCCR 198; Central Asbestos Co Ltd v Dodd (1973) AC 518, considered.

4. On the assumption that the applicant knew he was suffering from psychological problems at the relevant time, based on the evidence, there is difficulty in accepting that he was unaware of the connection between the personal injury and the defendant’s act or omission. However, as he did not know he was suffering from a personal injury, s60I(1)(a)(iii) is satisfied: at [52]–[53] and [58].

Held in relation to (ii):

1. Section 60I(1)(b) involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the applicant: at [31].

Commonwealth v Smith [2005] NSWCA 478; Telstra Corporation Ltd v Rea [2002] NSWCA 49, applied.

2. The question for the purpose of s60I(1)(b) is whether, not having sought medical help before 1999, the applicant should now be allowed to claim that his medical condition was caused by the Commonwealth: at [71].
3. The applicant ought to have sought medical advice at an earlier stage and, if he had done so, it is likely that he would have become aware of the nature and extent of his illness and its connection with the collision at sea: at [74].

Held in relation to (iii):

1. Section 60G involves the application of a test which would disentitle an applicant from an extension of time, where actual and significant prejudice would be caused to the defendant, in the sense that a fair trial would be unlikely: at [36]. An applicant may need to establish more than the likelihood, on a bare balance of probabilities, that the trial will not be unfair: at [37].

Commonwealth v Smith [2005] NSWCA 478, applied.

2. The longer the delay, the greater the chance that the defendant will not know what evidence might have been available, had the proceedings been brought earlier. Such prejudice may affect even the application for an extension of time: at [39].

Brisbane South Regional Health Authority [1996] HCA 25; 186 CLR 541; Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, applied.

3. One element of unfairness to a defendant is to have to expend resources on meeting a weak claim in circumstances where there is little likelihood of recouping any significant part of the costs involved: at [40]. An apparent weakness in the applicant’s case is a factor tending against an extension and not a factor off-setting unfairness to the defendant: at [83].
4. The Commonwealth should not be required to rely solely upon the inherent weakness or inconsistencies in the applicant’s case. If it has been denied the opportunity, due to the lapse of time, to make any reasonable inquiry as to the accuracy of the plaintiff’s assertions, that is an element of actual prejudice: at [81].

5. An extension of time would not be just and reasonable in the circumstances: at [85].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40876/05

SC 20444/02

HANDLEY JA

IPP JA

BASTEN JA

1 August 2006

COMMONWEALTH OF AUSTRALIA v SHAW

Judgment

1 HANDLEY JA: I agree with Basten JA.

2 IPP JA: I agree with Basten JA.

3 BASTEN JA: Mr Brian John Shaw (“the plaintiff”) was a leading patrolman responsible for police duties on board the HMAS Melbourne at the time of its collision with HMAS Voyager on 10 February 1964. He was 24 years of age at the time of the collision. On 4 October 2002 he commenced proceedings in the Common Law Division against The Commonwealth, seeking damages in negligence from the Commonwealth. By notice of motion filed the same day, he sought an extension of time under s 60G of the Limitation Act 1969 (NSW) (“the Limitation Act”) within which to commence the proceedings.

4 By judgment delivered on 14 October 2005, the limitation period for the cause of action was extended by Howie J to a date on which his Honour seems to have thought the statement of claim was filed, namely 4 October 2004: see Shaw v Commonwealth of Australia [2005] NSWSC 1027: in fact it had been filed on 4 October 2002, as noted above. On 22 June 2006, at the conclusion of the hearing of argument in the matter, the Court granted leave to appeal from that decision. The reasons for the grant of leave are noted at [13] below.

Issues

5 The issues sought to be raised by the Commonwealth on appeal may be divided into three categories. First, there are two challenges brought to the findings of the trial judge in relation to the preconditions to an extension of time identified in s 60I(1)(a), based on the state of knowledge of the plaintiff, Mr Shaw. Secondly, there is a complaint that the trial judge erred in failing to address the requirement of s 60I(1)(b), namely that the application for extension was made within three years after the plaintiff “ought to have become aware” of the matters listed in paragraph (a). Thirdly, there is complaint that the exercise of discretion under s 60G(2) miscarried.

6 The proceedings in the Common Law Division (and in this Court) involved an exercise of federal jurisdiction: see Commonwealth of Australia v Smith [2005] NSWCA 478 at [164]. Both parties accepted that to obtain an extension of time the plaintiff needed to satisfy the Court as to preconditions set out in s 60I(1) and that the Court needed to be satisfied that the order sought was “just and reasonable” in the circumstances of the case. It was accepted that the precondition set out in s 60I(1) controlled the exercise of power under s 60G, in circumstances where that section operated only by virtue of Schedule 5, cl 4(4), because the cause of action accrued or would have accrued before 1 September 1990, being the date prescribed by s 60G(1).

7 Although it will be necessary to consider the precise manner in which the primary judge dealt with the application further below, it appears that he was not satisfied that the plaintiff did not know that personal injury had been suffered, within the terms of sub-par (a)(i). Thus his Honour stated at [41]:

“It seems clear that the plaintiff was aware within the limitation period of many of the personal injuries of which he now makes complaint and that are set out in the particulars of injury above, even though he might not have been aware that they amounted to personal injuries for the purposes of the section.”

This passage may be seen to be ambiguous, but it does not seem to constitute a statement that the Court was satisfied that the plaintiff “did not know” that personal injury had been suffered, in the relevant sense. The Commonwealth, in its notice of appeal, assumed that no adverse finding had been made under this sub-paragraph and no contrary position was presented by the plaintiff.

8 At [42], his Honour held:

“I find that the plaintiff was aware during the limitation period of the nature of his injury in that he was aware of its symptoms, understood that it was a psychological rather than a physical injury and realised that it would have continuing consequences ... .”

His Honour continued at [43]:

“However, I do not find that the applicant was aware of the extent of his injury. ... However, it seems the applicant must have some understanding of the ramifications of the injury in order to understand its nature and extent for the purposes of the section and I do not believe that the applicant had that type of knowledge about his injury even though he had a general awareness of the kind of injury it was.”

9 Although the first sentence in this passage was not a positive finding that the applicant was “unaware” the second part of the paragraph is closer to such a finding. Given the finding in the previous paragraph of awareness of the “nature” of the injury, the Commonwealth, in its notice of appeal, identified as a ground a finding that the applicant “was not aware of the extent of the injury he had sustained”, apparently picking up the second limb of sub-par (a)(ii), dealing with “extent”, rather than “nature” of the injury. Whether such a precise dissection of the statutory language is appropriate may be doubted: nevertheless, it may be accepted for present purposes that his Honour intended to make a finding in favour of the applicant in relation to the matter identified in sub-par (a)(ii).

10 The primary finding in relation to paragraph (a) depended on sub-par (iii). Thus, at [44], his Honour held:

“In any event I am satisfied that the plaintiff was not aware of the likely connection between his injuries and the collision.”

Subject to the use of the term “likely” in relation to the connection, this finding expressly adopts the language of sub-par (iii) and is expressly challenged in the notice of appeal.

11 Paragraph (b) of the provision has two functions. The first is to ensure that, on the assumption that the plaintiff became aware of the matters listed in par (a) prior to making the application for extension of time, the Court must be satisfied that the application was made within three years of achieving that state of knowledge. The second function, implicit in the words in parenthesis, is that the application was also made within three years of the time at which the plaintiff “ought to have become aware” of all of the matters listed in paragraph (a). The Commonwealth’s complaint is that, in relation to the latter normative element, the primary judge gave no attention to the relevant considerations. He referred to it only in [46], which read in full:

“The plaintiff has satisfied me that during the limitation period he was at least unaware of the connection between the injuries in respect of which he now claims compensation and the collision between the Melbourne and the Voyager. The application is made within three years after the plaintiff became aware (or ought to have become aware) of all the three matters in s 60I(1)(a). I, therefore, turn to s 60G(2).”

12 This passage confirms that the lack of awareness of which the primary judge was satisfied was the connection identified in sub-par (iii), and the view that the plaintiff was unaware of the connection prior to 4 October 1999.

13 The Court was satisfied that leave should be granted for two reasons. First, it was clearly arguable that the primary judge had simply not addressed matters relevant to the normative element in paragraph (b). Secondly, it was unclear whether, on the findings of fact, the primary judge was indeed satisfied that it was only the lack of awareness of “connection” which had been made out because, if the plaintiff understood that he had suffered a mental impairment, which undoubtedly included bad dreams about his experience after the collision, and was aware that his abuse of alcohol was related to that problem, he could not have established that he was not (or at least ought not to have been) aware of a connection with the collision long before the three year period commenced to run.

14 The third category of complaints concerned the exercise of discretion, pursuant to s 60G(2). These were identified as:

(a) taking into account a legally irrelevant matter, namely the difficulties of proof which would face the plaintiff at trial;

(b) failing to give sufficient weight to the difficulties of proof of the cause of the plaintiff’s alcoholism at trial;

(c) failing to give sufficient weight to the difficulties faced by the Commonwealth in satisfying the evidentiary onus, pursuant to Purkess v Crittenden of demonstrating other likely causes of alcoholism;

(d) failing to take into account the difficulties of apportioning alcoholism between any causal connection established in relation to the collision and other causes.

15 These complaints appeared to accept, at least for the purposes of the present application, that the plaintiff had sufficiently established that he suffered from post-traumatic stress disorder.

Relevant legal principles
(a) the statutory provisions

16 This being a matter brought in federal jurisdiction, the law to be applied in this case, pursuant to ss 79 and 80 of the Judiciary Act 1903 (Cth) is the law of New South Wales: see Blunden v The Commonwealth [2003] HCA 73; (2003) 218 CLR 330 at [18]; applied in Burk v Commonwealth of Australia [2004] VSC 210 at [38] (Whelan J). Thus, the power to extend the limitation period relied on by Mr Shaw is to be found in s 60G of the Limitation Act, which relevantly reads as follows:

60G Ordinary action (including surviving action)

(1) This section applies to a cause of action ... founded on negligence ... for damages for personal injury ... .

(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 ... 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.

17 In addition to the “just and reasonable” criterion specified in s 60G(2), the exercise of discretion is governed by matters set out in s 60I, which reads as follows:

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).

(b) unawareness of injury

18 There are a number of curiosities arising from the drafting of s 60I(1)(a). First, there is the discrepancy in terminology between sub-paragraph (i), referring to something the plaintiff “did not know” and sub-paragraphs (ii) and (iii) referring to things of which the plaintiff “was unaware”. In other provisions, a person’s “knowledge” is associated with facts: see, eg, s 57B(1)(e). It may be that the concept of ‘awareness’ was deliberately used in relation to more amorphous matters, being the nature and extent of injury and the connection between an injury and an act or omission, in sub-paragraphs (ii) and (iii). Some support for that conclusion may be found in the relevant considerations identified in s 60E, in relation to the five year extension permitted under s 60C. In that provision, paragraphs (c) and (d) refer to both the time at which “the injury” became known to the plaintiff and the time at which “the nature and extent of the injury” became known to the plaintiff; awareness is used only in relation to the issue of connection: s 60E(1)(c), (d) and (e). It would seem that nothing turns on the difference in terminology.

19 A second issue is that questions of knowledge and awareness suggest a level of conviction on the part of a prospective plaintiff which may not take proper account of indeterminate beliefs. This is likely to be a particular concern in relation to mental impairment, as a form of personal injury. A person who is told by a psychiatrist that he or she has a mental illness may not accept the diagnosis. Can it be said that such a person “does not know” that he or she has suffered a personal injury? Alternatively, the person may have conflicting diagnoses, as a result of which the person is left in a state of uncertainty. In s 58, which permits a more limited discretion to extend the limitation period, the critical test is not “knowledge” but “the means of knowledge” of the applicant and the relevant facts are described as “material facts of a decisive character”, a description which incorporates an element of judgment as to whether the knowledge would justify the bringing of an action: see s 58(2)(a) and s 57B(1)(c). No such sophistication is incorporated into the criteria prescribed by s 60I(1).

(c) the concept of “connection”

20 A third difficulty, relevant for the present case, concerns the “connection” referred to in sub-par (iii). The concept of “connection” is inherently elusive, and must take its meaning from the specific statutory context: see, eg, Collector of Customs v Cliffs Robe River Iron Associates [1985] FCA 96; (1985) 7 FCR 271 at 275 (Bowen CJ, Morling and Neaves JJ); Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153 at 154 (Davies J), 160 (Beaumont J) and 163 (Pincus J) and Taciak v Australian Federal Police [1995] FCA 1481; (1995) 131 ALR 319 at 328 (Sackville J).

21 There is no doubt that sub-par (iii) invokes the concept of a link or connection in a causal sense; every person who knows they have suffered an injury and is aware of the fact that another person has done or omitted to do certain things will no doubt be conscious of an abstract temporal connection in the sense that one preceded or succeeded the other. Such knowledge would not exclude a prospective plaintiff in the present circumstances. In Dedousis v The Water Board [1994] HCA 57; (1994) 181 CLR 171, the High Court held that the concept of connection in s 60I(1)(a)(iii) was not governed by the language of s 60F, which merely identifies the purpose and summarises the effect, in a general sense, of the operative provisions which follow. Accordingly, error was demonstrated by the courts below in that case in construing “connection” as meaning “cause of the injury”, the latter being the phrase found in s 60F. So much may be accepted, but s 60F may still be relied upon as indicating the nature of the connection required.

22 In Dedousis, the High Court noted at p 180:

“However, because those courts focused on whether the plaintiff was unaware of the 'cause' of his injury within s.60F and gave that word a narrower meaning than the words 'connection between the personal injury and the defendant's act or omission' in s.60I(1)(a)(iii), they directed themselves to the wrong question.”

One would not have expected such an error to affect the applicant adversely: it will usually be harder for the applicant to establish non-awareness of the “broader” or vaguer concept of connection than non-awareness of the narrower concept of “cause”. In fact the error which led to reversal of the judgment below in Dedousis was “an unduly restricted view of the acts and omissions upon which the plaintiff” relied, being the acts or omissions of the defendant. Thus, to say that the plaintiff was aware of the connection between his injury and a particular omission of the defendant would not preclude satisfaction of s 60I(1)(a), if there were other acts or omissions pleaded, of which he was unaware at the relevant time.

23 In other statutory provisions, different language has been considered, but always as engaging an element of causation. In Roncevich v Repatriation Commission [2005] HCA 40; (2005) 79 ALJR 1366, the High Court considered the meaning of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth), which referred to an injury which “arose out of, or was attributable to” defence service. Whilst noting that the use of the two expressions disjunctively indicated a legislative intention to give a broad meaning to the concept adopted, the joint judgment (of McHugh, Gummow, Callinan and Heydon JJ) continued at [27]:

“A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”

Despite the breadth of the language, a causal link is still required.

24 There has also been discussion in this Court of the phrase “attributable to” which is used as describing the relevant link between a dust-related condition and a breach of duty in the Dust Diseases Tribunal Act 1989 (NSW), s 11(1)(b). Some of the authorities dealing with that language are discussed in Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186 at [28]- [33] (Giles JA, Hodgson and Bryson JJA agreeing). In Anderson v Kaufman (1991) 7 NSWCCR 198 at 207, Clarke JA noted that he was unable to accept “that ‘attributed to’ has some specific and limited meaning which distinguishes it from the concept of ‘caused by’ or ‘resulted from’.” Similar language is found in the Limitation Act 1980 (UK), s 14(1), which referred to knowledge that “the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence ...”. Of an earlier provision in similar terms, Lord Reid said in Central Asbestos Co Ltd v Dodd (1973) AC 518 at 533B-C, in relation to the use of the word “attributable”:

“That means capable of being attributed. ‘Attribute’ has a number of cognate meanings ... . The essential element is connection of some kind. ... The connection here is that the injuries were caused by certain acts and that those acts involved, or amounted to negligence.”

25 As noted above, the broader the scope of the term “connection” the greater the difficulty an applicant will have in demonstrating lack of awareness. Accordingly, construing the language of the statute favourably to the applicant, but giving it a meaning which is consistent both with the statutory purpose and context, “connection” must be understood as involving an element of causal relationship, of the common sense kind which is relevant in this context, in accordance with the principles explained in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

(d) subjective unawareness

26 There is no doubt that the matters of which the plaintiff “did not know” or “was unaware”, for the purposes of s 60I(1)(a) are matters not within the actual knowledge of the plaintiff: see Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 10. For the purposes of sub-par (ii), the judgment of the Court in Harris continued at p 13:

“Expectation as to the likely consequences of an injury is clearly an element in determining an applicant’s awareness of the extent of the injury. When the relevant injury is a disease, the expectation of the applicant at the expiration of the limitation period as to the likely course of the disease will usually be determinative of whether he or she was aware of ‘the extent’ of the disease for the purpose of s 60I(1)(a)(ii) of the Act. ... But it is the applicant’s expectation as to the course of the disease, not that of the reasonable person, that is relevant. Thus, if an applicant knew at the expiration of the relevant period that he or she suffered from a diseased spine, it does not necessarily follow that the person was aware of the ‘extent of personal injury’ if eventually the disease caused the vertebra to collapse. Whether the applicant was aware of ‘the extent’ of the injury would depend on whether that person was aware that there was a real chance that the vertebra would collapse as the result of the disease.”

27 Unawareness of at least one of the criteria set out in paragraph (a) must exist “at the expiration of the relevant limitation period”. His Honour held that the limitation period relevant to these proceedings expired on 11 February 1970: at [2]. However, in practical terms, because an application for extension of time had to be made within three years after the plaintiff became aware of all of the relevant matters, the focus of the evidence was on the date on which it was said he became so aware. That stage was not reached “until 2002 after he obtained legal advice and was examined by Dr Hopwood”: at [44].

28 There remains a question of principle as to what a plaintiff must know, in order to know he has a “personal injury”, in circumstances where the particular injury is one which involves an impairment of the mental condition of the plaintiff. Because the law requires that a distinction be drawn between mere emotional distress and a recognisable psychiatric illness, this Court accepted in Commonwealth v Smith that the plaintiff must be aware that he or she suffered from a recognisable psychiatric illness: [2005] NSWCA 478 at [7] (Handley JA), [104] (Santow JA) and [181] (Basten JA). That approach is supported by Stingel v Clark [2006] HCA 37, dealing with a case of ‘post-traumatic stress disorder with delayed onset’ under a similar definition of “personal injury” in the Limitation of Actions Act 1958 (Vic), s 3(1). Accepting, consistently with the case law dealing with physical injuries, that the plaintiff does not need to know “the medical description or diagnosis of his or her condition” (as explained by Clarke JA (Priestley and Powell JJA agreeing) in CRA Ltd v Martignago (1996) 39 NSWLR 13 at 20E) there may nevertheless remain questions as to what constitutes relevant knowledge or awareness. Because, however, the present case turned on the operation of sub-par (iii), these questions need not be addressed.

29 Sub-paragraph (iii) has three elements to it, namely the personal injury suffered by the plaintiff, the act or omission of the defendant and the connection between the two. For the purposes of this sub-paragraph, the plaintiff’s awareness of having suffered a personal injury, in the sense of having a physical or mental impairment, may be assumed. The principal cases concerned with the operation of the sub-paragraph relate to awareness of the acts or omissions of the defendant which are relied upon in establishing the cause of action: see, eg, Drayton Coal Pty Ltd v Drain (22 August 1995, unrep, NSWCA). These principles were also discussed and applied in Telstra Corporation Ltd v Rea [2002] NSWCA 49 (at [4]-[17] Mason P, dissenting in their application; and [101]-[112] Einstein J, Foster AJA agreeing at [25].

(e) the normative element

30 Paragraph (b) requires the Court to be satisfied that the application to extend time was brought within three years of the date when the plaintiff became aware “or ought to have become aware” of the relevant matters specified in paragraph (a). Thus, even if the date of actual awareness falls within the three year period, the Court is required to consider whether the plaintiff ought to have become aware of the last of the relevant matters at a date prior to the commencement of that period.

31 It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed in relation to this issue) adopted a concept of “constructive knowledge”, as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530:

“In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out.”

This approach was quoted with approval by Santow JA (Handley JA agreeing) in Commonwealth of Australia v Smith [2005] NSWCA 478 at [103]; cf [182]-[187].

32 Use of the label “constructive knowledge” must be undertaken with care, so as not to fall into patterns of thought relating to a ‘reasonable person’ test. Further, there is a risk that the label may distract attention from the purpose of the judgment being formed. Indeed, even to ask what steps it was “reasonable” for the plaintiff to take provides little guidance as to the criteria by which the judgment is to be made. Those criteria will vary, depending on the particular facet of knowledge, identified in par (a), of which it is said that the plaintiff ought to have become aware, at a date more than three years prior to the commencement of the proceedings. Only when the relevant fact has been identified, is it possible to consider what steps might have been taken in order to acquire knowledge of that fact. Once the possible steps have been identified, consideration may need to be given as to the likelihood that such steps, if taken, would have resulted in the plaintiff acquiring knowledge of the particular fact. Finally, it may be necessary to distinguish the purpose of the inquiry from the purpose for which the step might have been taken. In relation to a step involving a consultation with a medical practitioner, the purpose of the consultation would usually be to obtain appropriate medical treatment. Whether such treatment was obtained or not may have legal consequences, for example in relation to mitigation of loss. However, for present purposes the legal consequence will be acquisition of relevant knowledge, being a result somewhat removed from the usual purpose of obtaining medical treatment.

33 Finally, it must be borne in mind that, as noted by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551, the discretion to extend time “must be exercised in the context of the rationales for the existence of limitation periods”. By parity of reasoning, any evaluative judgment as to whether a plaintiff “ought” to have become aware of a relevant fact earlier than in fact he or she did must be assessed against those underlying reasons for imposing a limitation period. The need to assess the failure of the plaintiff to take a step for one purpose against criteria which are directed in quite a different direction prevents the adoption of a simple formula, or even a class of relevant criteria, at any level of particularity.

(f) just and reasonable criterion

34 Assuming that the plaintiff satisfies the requirements of s 60I(1)(a) and (b), the Court may make an order extending time, if it thinks such an order just and reasonable, in all the circumstances. The relevant approach in this regard was considered in Commonwealth v Smith [2005] NSWCA 478 by Santow JA at [122]-[129], Handley JA and I agreeing at [21] and [202] respectively.

35 Once it is accepted that the applicant has passed through the gateways in s 60I(1), including the normative element in sub-par (b), it is unlikely that any factor personal to the applicant will preclude a favourable exercise of discretion under s 60G, at least in the usual circumstances. Thus, where the proceedings are instituted within the three year period permitted by sub-par (b), any unreasonable delay in that period is unlikely to be decisive, especially if, as in the present case, the delay is of limited significance, given the total lapse of time since the tortious conduct occurred.

36 The principles identified by Santow JA in Smith require the application of a test which would disentitle an applicant from an extension of time, where actual and significant prejudice would be caused to the defendant, in the sense that a fair trial would be unlikely: see Smith at [127], quoting Sheller JA in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at [119] and continuing, in Smith, at [128]. The reference to “chances of a fair trial [being] unlikely” is to the joint judgment of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 550.

37 There may be undue complexity in formulating a test by incorporating elements from different judgments. To speak of an application which “should be refused” if a grant “would result in” something described as “the chances” of a fair trial being “unlikely” has a tendency to obfuscate. It also tends to reverse the burden of proof, which is on the applicant to establish that the grant of an extension is and just and reasonable. Although McHugh J stated that, as a general rule, an extension should be refused “once the defendant has proved the fact or the real possibility of significant prejudice” (at p 555) I do not take his Honour to have intended any reversal of the onus of proof. Rather, I take his Honour to mean that an applicant may need to establish more than the likelihood, on a bare balance of probabilities, that the trial will not be unfair.

38 A further question arises as to whether, in all circumstances, there is an evidentiary onus on a party opposing the application “to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant’s favour”, as suggested in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197E-F (Mason P). His Honour went on to comment that failure to adduce such evidence “may” give rise to an inference that specific prejudice is absent. I do not understand the President to have been laying down a principle of universal application, nor, read in its broader context, do the comments of Toohey and Gummow JJ in Brisbane South Regional Health Authority (at p 547) indicate such a universal principle. Certainly in Smith, the authority referred to by Santow JA was relied upon only to lead to the conclusion that it “was open to the primary judge to find that the Commonwealth suffered no prejudice” in the particular circumstances: at [133].

39 It will be necessary to give more specific consideration below to the circumstances of the present case, and the manner in which they were dealt with by the primary judge. However, the issue of principle is that, the longer the delay, the greater the chance that the defendant will not know what evidence might have been available, had the proceedings been brought, say, 30 years earlier: see Brisbane South Regional Health Authority, 186 CLR at 551, McHugh J citing Barker v Wingo [1972] USSC 144; 407 US 514, 532 (1972) that “what has been forgotten can rarely be shown”; see also Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 at [32] (Buchanan JA). In other words, presumptive prejudice may affect even the application for an extension of time. To take three elements of the present case, it may be clear that -

(a) the applicant was involved in a traumatic incident caused by the defendant;

(b) he has developed alcoholism and violent propensities, and

(c) three marriages have disintegrated.

Key questions may include: was his alcoholism a cause or consequence of (or unrelated to) his marital difficulties? Did his response to the collision contribute to his marital difficulties or was it his service in the Navy keeping him away from home for long periods, which caused those difficulties? Apart from pointing to the undisputed lapse of time, what “evidence” must a defendant call in order to prove that it does not know how to challenge an allegation, because it lacked the opportunity to investigate it at an earlier time? In assessing a discretionary extension of time, the Court must at least be conscious of the possibility that the prejudice to the defendant extends to prejudice in resisting the application to extend time. The applicant’s chance of success should not increase with passing time.

40 The Court is also entitled to take into account the strength or weakness of the case presented by the applicant, in terms of the merits of the claim. Were it otherwise, there would be a risk that an applicant with a weak case would have a greater likelihood of an extension of time than one with a stronger case. As the primary judge noted in the relation to the present application, despite various visits to medical practitioners, including psychiatrists, during the period of his service with the Navy, there was no record of complaint, or observation, of symptoms of PTSD being exhibited by the applicant. On the one hand, this may strengthen the applicant’s claim that he did not “know” he had suffered an injury, being a psychiatric disorder, and thereby improve his chances of obtaining an extension of time. On the other hand, the absence of any contemporaneous indication of illness may reduce the likelihood of success if an extension is granted. One element of unfairness to a defendant is to have to expend resources on meeting a weak claim in circumstances where there is little likelihood of recouping any significant part of the costs involved.

41 In the present case, as will be noted below, the Commonwealth expressly relied upon the prejudice to it in establishing, with the necessary degree of precision, any pre-collision level of disability which might constitute a contributing cause of the later condition, in accordance with the principles established in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. Those principles underlay the discussion in Smith at [203] and [208]-[210], matters not accepted by the majority of the Court, but not rejected as irrelevant in principle: see Handley JA at [9].

Application of principles

42 On the night of the collision the plaintiff was off duty and sitting in a mess talking with three other leading patrolmen when he heard “a massive crunching noise”. He immediately went on deck and helped survivors from the Voyager on to a platform at water level on the Melbourne. He was washed off the platform by a heavy swell. He said that while in the water he was worried about sharks, was very scared of drowning and was most distressed because he could hardly swim. However, he managed to dog paddle to a rescue dinghy and held on until he was taken back on to the platform. He believed he was assisting with the rescue for about 30 minutes. He stated in his affidavit:

“I remember going back to my mess that night and I laid down but I can’t remember sleeping. I was worried about the safety of my ship. Since that time I have always had problems with sleeping which continues up to now. I drink as a means of helping me to try and get to sleep. I frequently suffer from heavy sweating in bed.”

43 He further stated in his affidavit that he had been “a light drinker” before the collision but had started drinking more heavily after the collision, “in an attempt to calm my nerves”. In oral evidence he admitted that even before the collision he was consuming between two and six glasses of beer, two or three times a week whilst on the ship and eight standard drinks whilst in port: Tcpt, 25/08/05, p 17. (He was then 17 years of age.) The primary judge found that he had, in effect, “progressed from a moderate drinker to an alcoholic”. He also claimed that he started to smoke very heavily after the collision progressing “up to 80 cigarettes a day”. In his oral evidence he indicated that his current consumption of alcohol was at least “possibly twelve pots and maybe three or four rums” and that he smoked “about fifty a day”. He also gave oral evidence that he was on medication for hypertension and gastric reflux.

44 The recruitment sheet in his naval records included, under the heading “Sports, spare-time activities”, in handwriting a reference to Australian Rules football and “high diving” and “swimming”. The printed words “can swim” had been circled and the figure 300 inserted before the abbreviation “yds”. In his oral evidence he denied that the handwritten words “high diving” and “swimming” had been written by him, although he thought that the rest of the form was in his writing. It was put to him (Tcpt, p 14):

Q. Part of your case is that you were washed into the sea in the course of the rescue operation and you thought you might drown?

A. Yes, sir.

Q. Obviously, if you were capable of swimming 300 yards that wouldn’t have been a problem?

A. That’s right, sir.

45 The plaintiff was also cross-examined about an incident in 1957 when he had been absent without leave, but reported that he was “suffering from nervous shock following a truck accident on the Princes Highway whilst on leave”. He agreed in cross-examination that he had lied to avoid getting into trouble (unsuccessfully) but the cross-examination focused on his apparent use and knowledge in 1957 of the term “nervous shock”.

46 Otherwise, there was limited challenge to the plaintiff’s credit and the primary judge found that the plaintiff was a reliable witness and was attempting to be an honest one: at [45].

47 His Honour set out the particulars of injury as pleaded at [15]. The particulars run to 20 paragraphs, with a degree of repetition and overlap. They need not be repeated: they were in fact prepared before the plaintiff had seen the psychiatrist on whose report he relied, Dr Hopwood, and eighteen months before Dr Hopwood prepared a report. They would seem to be the product of a word-processor, rather than a professional assessment. To the extent that they assert excessive alcohol consumption, excessive smoking, gastric reflux and hypertension, they refer to physical symptoms of which the plaintiff was aware, and no doubt had been at all relevant times. Sleep disturbances would appear to fall into the same category. There is a second category, involving psychological reactions such as stress, anxiety, insecurity, lack of confidence and emotional detachment. A third category of particulars involve conditions having psychiatric labels, including “post traumatic stress disorder”, “generalised anxiety disorder” and “adjustment disorder”.

48 So far as the plaintiff’s knowledge of injuries was concerned, some weight was placed by the Commonwealth on a questionnaire he completed with the assistance of a welfare officer at the Geebung RSL identified as “Lifestyle Questionnaire” seeking information relevant to disabilities which had been claimed or accepted by the Department of Veterans’ Affairs. In addition, on 16 December 1998, the welfare officer had sent a letter on behalf of Mr Shaw, in response to an assessor’s decision received on 14 December 1998. He was cross-examined in relation to a statement contained in the letter which said that his serious drinking had started “in the period after 1972”. That statement was at odds with his evidence in these proceedings, but was probably explained by the fact that a pension under the Veterans’ Entitlements Act 1986 (Cth) required that an injury be, relevantly, “defence-caused”, which meant an injury which arose out of or was attributable to any “defence service”: see s 70(5). The term “defence service” was defined as service rendered on or after 7 December 1972 (and prior to 1994): s 68. Thus, when the plaintiff sought a pension arising out of post-traumatic stress disorder diagnosed as flowing from the collision in 1964, he was unsuccessful, because it was not related to defence service in the defined period.

49 Although the Commonwealth tendered a report by Dr Yvonne Skinner, a consultant psychiatrist, casting doubt on the diagnosis of post traumatic stress disorder, the central thrust of the Commonwealth’s case in relation to the operation of s 60I was that the primary judge should not have been satisfied of his relevant lack of knowledge or awareness, up until April 2002, as his Honour found.

50 The plaintiff was cross-examined about a statement in his lifestyle questionnaire, completed in 2002, which identified “anxiety disorder” and “nervous disorder” under the heading “Disability”, followed by an answer to a question “When did you first become aware of the signs and symptoms of the disability”, which was given as “1964”. The plaintiff suggested that, despite the clear words of the question, he had given the date of the “event” and not the date on which he first became aware of the signs and symptoms of the disability: Tcpt, p 55. The cross-examination continued:

Q. When was it you first became aware of the signs and symptoms of the disability?
A. I started looking very seriously at it sir, after my second divorce.

Q. Which was when?
A. I think it was ‘78, I think.
...

Q. It was at that stage that you became aware that you were having symptoms that resulted from the affect [sic] of the collision upon you?

A. No sir.

Q. Isn’t that what you’ve just said?

A. No sir. What I was trying to say to you sir, was that’s when I decided that something really bad must be wrong with me after two divorces.

Q. When you said something must really be wrong with me, you meant something must be wrong with you psychologically?

A. Probably, yeah.

Q. And included in might be wrong with you were, problems of anxiety?

A. I suppose so, yes.

Q. Bad dreams?
A. Yes.

Q. And all of the things you told doctor [Hopwood] about?
A. Yes.

51 At Tcpt 57, the cross-examination continued:

Q. Mr Shaw, is it the position that some time in the 1970s, you came to a realisation that you had psychological problems?

A. I’d probably say that’s correct, sir.

Q. At about that time, you recognised that those problems included dreams of the ‘Melbourne’/’Voyager’ collision?

A. No sir, I had dreams before then.

Q. But you associated the dreams in 1978 with the collision. When you realised there was something wrong with you, you put two and two together?
A. No sir, I had the dreams before then and I knew what I was dreaming about.

Q. About the collision?
A. About being in the water.

Q. You realised in 1978 that the dreams that you were having were symptoms of an upset as you put it?

A. Yes, sir.

Q. It was the divorce from your second wife that informed you that there was something wrong with you, that you needed some help with?
A. Well I thought there must be something wrong if two of them had gone, sir.

Q. What was wrong was that psychologically you didn’t feel you were right?
A. I thought I was fine. They didn’t think I was right sir.

Q. You realised in 1978 that their analysis was better than yours?

A. Possibly, yes sir.

Q. What did you do about that?
A. Nothing.

Q. Why not?
A. What could I do?

Q. Go and get some assistance?

A. Go to the doctor and the doctor says ‘stopping drinking’. Then you got no friends.

52 As noted above, at [7], the parties appear to have assumed that the primary judge was not satisfied that the plaintiff did not know that personal injury had been suffered, for the purposes of sub-par (a)(i) of s 60I(1). Nevertheless, his Honour also stated, at [42]:

“It is clear that the plaintiff did not understand that he was suffering from a psychiatric illness. But he was aware from 1978 that his symptoms, including his irritability and anxiety, arose from a psychological problem although he did not know what it was. He also knew that his use of alcohol to excess was related [to] the injury.”

53 On the assumption that he knew that he was suffering from a personal injury at the relevant time, there is a difficulty in accepting that he satisfied the requirements of sub-par (a)(iii), being unaware of the connection between the injury and the act or omission of the defendant. At [44], his Honour held that the plaintiff was not aware of that connection, and continued:

“I accept that he understood that he was having bad dreams arising from the collision, at least insofar as they reflected his fear of drowning at the time. He also knew that he was drinking alcohol to be able to sleep without having these dreams. But the understanding that he had of the connection between those symptoms and the collision did not alert him to the fact that the more grave symptoms from which he suffered, such as his irritability, anxiety and his general increase in the misuse of alcohol, were related to the effects upon him of the collision and finding himself thrown into the water in a situation in which he feared drowning.”

54 It is clear that the passage from the plaintiff’s cross-examination set out at [51] above (and also set out by the primary judge in his reasons at [38]), demonstrates an understanding that his anxiety and nightmares related to being in the water following the collision: as his Honour said, he drank to be able to sleep without having those dreams.

55 There are other aspects of his evidence which would support a similar level of knowledge, in the history recounted by Dr Hopwood in his report dated 6 April 2004, but based on consultations held on 15 October 2002 and 30 March 2004. For example he reported:

“Mr Shaw described that he had always avoided discussion of any reminders of the collision. If it came on the television he would change the channel or drop the newspaper if there was any item related to the collision. He described that he would never talk to anyone about it, avoiding the RSL until 2 years ago for fear he may meet someone who knew of the collision and his involvement in it.”

Dr Hopwood then noted occasions of “lowered mood”, frequently associated with a worsening of his poor sleep and appetite.

‘He did however describe three significant periods during his life where similar depressive symptoms persisted the first occurring in the first months after the collision. He describes on reflecting that he had lost a close friend on board the Voyager and that the whole situation was tragic including what he perceived as the crucifying of the Captain of HMAS Melbourne. He was in low mood, nothing cheered him up, and he was unable to sleep for the next month. He described that after his second divorce in 1978 he again went through a period where he felt depressed, frustrated and angry. Most recently in March 2004 following the death of his third ex-wife, with whom he had remained close friends, he describes a quite clear period of depression ... .”

56 At least the first of these incidents demonstrates a clear understanding of the effect of the collision. The account does not suggest that it was a recent reconstruction. Nor do the deliberate avoidance techniques described in the previous passage demonstrate unawareness of the level of connection between the symptoms of his anxiety and related psychological states (of which he was aware) and the collision. Accordingly, if the Court were not satisfied as to the ignorance of his injury under (i) and (ii), it should not have been satisfied under (iii) that he was not aware of the connection between the injury and the collision.

57 In his affidavit of 15 April 2004, the plaintiff said that he was unaware that the acts or omissions which had caused the collision constituted ‘negligence’, prior to reading the proposed statement of claim. However, this was not the basis upon which the primary judge was satisfied as to his unawareness of the matters set out at (iii). Nor does it appear to have been the basis upon which the case was presented at the hearing before his Honour. Had it been, there might have been a real question as to whether he meant that he was unaware that the acts or omissions constituted negligence, in law, or that he was unaware of the mistakes which led to the collision. His ignorance as to the legal significance of the acts or omissions of the defendant would not have provided a basis for satisfying the Court as to the matters in (iii).

58 The difficulties with the approach taken by the primary judge in relation to the three elements of par (a) of s 60I(1) are exacerbated by the fact that the plaintiff did not seek to put on a notice of cross-appeal or even a notice of contention, in relation to the matters on which he did not succeed before the primary judge. However, this appeal appears to have been approached by both parties on the basis that the primary judge was affirmatively satisfied that the plaintiff was not aware of the extent of the injury he had sustained, being the conclusion challenged in ground (a) in the notice of appeal. If the Commonwealth took that position, no doubt the plaintiff was entitled to take a similar view of the judgment below. Further, there may be a difference of degree only between saying that a person is unaware that he has suffered injury and saying that he is unaware of the nature or extent of the injury suffered. Thus his lack of knowledge that he had suffered a psychiatric disorder, even though he was conscious of some psychological difficulties, might imprecisely be described as unawareness of the extent of an injury. On this basis, the findings with respect to at least one of the matters identified in par (a) may be accepted. Any errors identified in that regard may be disregarded as not material to the outcome of the application, or as not giving rise to a miscarriage.

Application of par (b)

59 On the basis that the plaintiff lacked a relevant level of awareness of the extent of his injuries (and possibly their connection with the collision) the next relevant issue is whether he ought to have had that level of awareness. As already noted, there is some artificiality in seeking to separate the normative questions raised by this provision from the “just and reasonable” test to be applied in the exercise of the discretion to extend time. Nevertheless, the factors relevant to par (b) are more discrete and should therefore be dealt with separately.

60 The first question is whether the failure of the plaintiff to seek professional advice, prior to 1999, which should have revealed the relevant facts prevents satisfaction of par (b). One consideration relevant to that question is whether the conduct of the Commonwealth dissuaded him from taking that course. The plaintiff gave evidence, in his affidavit of 15 April 2004, that he recalled being told shortly after the collision by Captain Robertson over the PA system not to talk about the collision “to media or anyone”. He continued:

“I was unable to discuss the collision with my wife although she was aware of what had happened. I just wanted to be alone. During my continuing service in the Navy I never discussed my experiences in the collision with any naval medical officer as I felt distressed whenever talking about the matter and I was not aware of the medical consequences to me as a result of my involvement in the collision.”

61 This evidence does not suggest that the direction given by Captain Robertson was a significant reason for the plaintiff not talking about the incident: rather it was his own personal response which led him not to take that step. There is no suggestion, for example, that he believed he would be disobeying orders if he spoke to medical officers in the Navy about his reaction. Thus, it should not be inferred that the direction had any significant effect on his subsequent conduct, relevantly for present purposes.

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

63 Nevertheless, it is necessary to draw a distinction between such a factor and a more general reluctance to seek medical advice, either because the person would prefer to turn a blind eye to the possibility of illness or because of a fear that the treatment will be worse than the illness.

64 Two factors are significant in relation to the circumstances of the case. First, in the last three questions and answers set out at [51] above, he expressed helplessness on the basis that all a doctor would do would be to tell him to stop drinking. Then, he said, he would have no friends. Given his evidence that he lived by himself in a caravan and, for the most part, avoided company, the answer is not entirely persuasive. On the other hand, once he had become dependent on alcohol, his resistance to a possible change may be seen as part of that condition. Secondly, the same conclusion may be drawn from Dr Hopwood’s report of 23 June 2004 that, even once his “condition” had been diagnosed in 2002, his alcohol intake remained largely unchanged for the next two years. The other condition to which Dr Hopwood referred in that letter was his post-traumatic stress disorder, of which he also said that the basic symptoms were largely unchanged, although he had become “a little more able to discuss events around the collision and had indeed attended the ANZAC Day march”. On the other hand, there is no evidence that he had been a reluctant historian when referred to Dr Hopwood (and indeed a psychiatrist appointed by Veterans’ Affairs, Dr Athey) nor was there evidence that he had found the preparation of affidavits for the purposes of these proceedings unduly stressful.

65 There is a distinction to be drawn between a lack of insight into one’s condition and an independent unwillingness to explore further that of which one is put on notice. The only references to “insight” in any of the evidence to which the Court was taken were in the report by Dr Hopwood. Under the heading “Mental state examination”, after noting that at the time of the second consultation the plaintiff was “appropriately focused on the recent death of his third ex-wife”, and after noting certain “depressive themes” Dr Hopwood stated:

“His insight appeared grossly intact.”

Because Dr Hopwood was not called, there was no elucidation as to the meaning of this statement. However, reading the phrase favourable to the plaintiff, it may be inferred that the more basic or primitive levels of insight were intact, but that no refinement of insight was displayed.

66 Further, and in response to a specific question seeking an explanation as to the plaintiff’s “awareness (if any) of suffering from a disorder”, Dr Hopwood further stated:

“It is clear from my interview that Mr Shaw generally did not perceive himself as suffering from a psychiatric condition or indeed an alcohol related condition. If he did have insight into this condition at times, it is clear that he practised a mixture of avoidance and denial of the alcohol problem.”

Again, the opinion is not unequivocal as to the absence of insight, nor as to any relationship between lack of insight and the psychiatric condition, nor as to the relationship between lack of insight and “avoidance” and “denial”.

67 A third way of looking at the matter is to identify the level of impairment caused by the condition and the extent to which the condition interfered with social, occupational or other important areas of functioning, to adopt the language of DSM-IV-TR. In the present case, the plaintiff remained in the Navy for 15 years after the collision. According to his affidavit (which is not entirely consistent with the history recorded by Dr Hopwood) his first marriage lasted from 1959 until 1966. He married his second wife in 1976 and described the marriage as lasting for a period of seven years; however, he also stated that he had begun living with his third wife in 1980. He acknowledged that violence and aggression, fuelled by alcohol, caused the break-up of the marriages.

68 His excessive use of alcohol and cigarettes led to other health problems including hypertension and emphysema. These in due course rendered him unemployable. In his affidavit of 15 April 2004, he stated (par 27):

“In about June 2002 I was drinking at the pub and I told someone I could no longer get work because of my hypertension and emphysema and low blood levels. The person suggested I go and see Bernie Baker to get help. Mr Baker suggested I contact Hollows lawyers who were coming to Queensland to meet with crew members on HMAS Melbourne at the time of the collision.”

(Mr Baker was the welfare officer at the Geebung RSL who helped complete the lifestyle questionnaires and sought to obtain a better pension for the plaintiff from Veterans’ Affairs.)

69 The affidavit continued:

“Up until the time I saw Mr David Forster of Hollows I did not know, and it had never been suggested to me, that I may have suffered an injury as a result of the collision.”

70 In assessing these matters, it must be borne in mind that the question is not whether the plaintiff ought to have sought legal advice in relation to any rights he may have had against the Commonwealth, but whether he ought to have become aware of the factual matters identified in par (a), or at least of the facts which it is found he was unaware of at the relevant time. For present purposes the two key facts may be identified as:

(a) a mental impairment,

(b) flowing from his exposure to the stress of the collision at sea.

The second element may be put to one side. As the plaintiff himself recognised, he had indisputably suffered distress and disturbance as a result of the collision. The matter of which he was ignorant was that his distress might be described as a mental impairment, or, to use his term, a “medical condition”.

71 Taking the medical condition as alcoholism, a description which he applied to himself, the question is whether he “ought” to have sought medical assistance for the condition before 1999. The question is not asked in some general moral sense, in terms such as ‘he owed it to himself’ or ‘he owed it to his family’ but in the sense of whether, not having sought medical help before 1999, he should now be allowed to claim that his medical condition was caused by the Commonwealth.

72 A second, and perhaps subsidiary question, is whether, had he sought medical help at an earlier time, his condition would have been diagnosed as involving a mental disorder attributable to the collision. It would appear, for example, that at least two psychiatrists who saw him while he was in the Navy, and who suspected dependence on alcohol, gave no consideration to such a possibility. Why that might have been was not addressed in the argument or in the evidence. One cause might have been a lack of familiarity of the signs and symptoms of what is now known as post-traumatic stress disorder, during the 1960s and 1970s. On the one hand, it may perhaps be assumed that any such lack of familiarity would have evaporated long before 1999. On the other hand, had he sought such assistance, he might have received the response given by Dr Yvonne Skinner, in her report of 15 August 2005, namely that it is not “possible to establish a diagnosis of post-traumatic stress disorder” on the materials which were available to her. Although she did not have the benefit of a consultation with Mr Shaw, nor of Dr Hopwood’s report, she did have the benefit of notes taken by Dr Hopwood for the purposes of his consultation.

73 There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne/Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result, but that, where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome. No attempt was made in the present proceedings to approach the matter in that way. Accordingly, the trial judge not having addressed the issues under par (b), it is necessary to reach a judgment on the material presented.

74 In my view the plaintiff ought, for the purposes of par (b), to have sought medical advice at an earlier stage and, if he had done so, it is likely that he would have become aware of the nature and extent of his illness and its connection with the collision at sea. There are four factors which, cumulatively, lead me to that conclusion. First, it seems not to be in doubt from his own evidence that he was aware of suffering from some form of psychological disorder: see his evidence set out in part at [50] and [51] above. This was not a case in which he was completely unaware of having a problem. Indeed, the primary judge was not satisfied that he was unaware of suffering an injury of a relevant kind. That he did not wish to be told to stop drinking is understandable, but it does not follow that he should now be entitled to bring proceedings to recover financial compensation in respect of the cause of his psychological disorders.

75 Secondly, there was no evidence of any significant difficulty faced in recounting his history to Dr Hopwood. Admittedly Dr Hopwood expressed the view in part 10(9) of his report that it is “typical” of persons suffering from PTSD to seek to avoid all reminders of or discussion of the stressful event. He also stated:

“This response would readily extend to an avoidance to potential legal process which would involve a discussion of the traumatic events in a potentially less supportive setting.”

Nevertheless, the plaintiff gave no evidence either of mental distress or such avoidance techniques, once it had been explained to him that he might have a legal right of recourse against the Commonwealth. Indeed, having come into contact with an apparently well-informed and sympathetic welfare officer at the Geebung RSL prior to 1999, he appears to have taken each step suggested to improve his financial circumstances. This was not a case in which it was established that the very complaint in relation to which he sought to sue prevented him, in a practical sense, from obtaining the information he required.

76 Thirdly, there was in his case no conduct on the part of the Commonwealth which led him to avoid seeking medical assistance of the kind which might have revealed the nature and extent of his mental impairment.

77 Fourthly, had he sought medical or psychological help prior to 1999, it is likely that he would have become aware of the injury suffered. That follows from the nature of the diagnosis, which for the purposes of the present application should be accepted as correct. Thus, Dr Hopwood stated of the plaintiff in part 9 of this report of 6 April 2004:

“He appears to have met the diagnostic criteria for a diagnosis of Post-Traumatic Stress Disorder essentially continuously since 1964 until this time.”

It follows that he should have been diagnosed at any time during that period, had he given another psychiatrist the same account of his condition as he gave to Dr Hopwood.

The general discretion: s 60G(2)

78 If it is correct that the plaintiff did not satisfy the normative limb in par (b), the discretionary power to extend time was not engaged. However, if a different view were taken in relation to the normative element, it would be necessary to consider whether an extension of time was just and reasonable in the circumstances. In my view it would not be. In order to satisfy the Court that the discretion should be exercised in his favour, the plaintiff would need to demonstrate that the Commonwealth would have a reasonable opportunity to challenge the underlying factual assumptions behind the diagnosis of PTSD or an alcohol disorder. For example, a question would arise as to whether or not it was the collision which led to his abuse of alcohol, violence towards his wife and the breakdown of his marriage. There was evidence before the primary judge from which it might be inferred that his abuse of alcohol pre-dated the collision, that his long periods of absence, his own infidelities and his drunkenness precipitated the breakdown of his first marriage, which in turn exacerbated his abuse of alcohol. It is also possible that his sleep disorders were consequent upon excessive consumption of alcohol, rather than being the cause of that consumption.

79 The first matter addressed by the primary judge was the Commonwealth’s complaint that “it is impossible for it to call witnesses who might be able to comment upon the plaintiff’s pre-collision conduct so far as the consumption of alcohol is concerned or to the change, if any, in his level of drinking after the collision and over the period leading up to the plaintiff resigning from the Navy”: at [48]. His Honour continued:

“The Commonwealth complains that the plaintiff can simply go into the witness box and give his account without the Commonwealth having the means of challenging that evidence. It points to what is said to be the unreliability of the plaintiff in giving accounts of his consumption of alcohol which would impact on the ability of any psychologist to obtain a reliable account of the plaintiff’s history about events occurring almost 30 years ago.”

80 His Honour’s response to that complaint was that any degree of unreliability or inconsistency in his accounts will lessen his chances of success with respect to issues on which the plaintiff would have the onus of proof: at [49]. Further, he asserted that the medical records available to the Commonwealth “seem to me to be sufficiently precise that they can be relied upon to test the plaintiff’s assertions”.

81 With respect, these matters do not answer the gravamen of the complaint. The Commonwealth should not be required to rely solely upon inherent weakness or inconsistencies in the plaintiff’s case. If it has been denied the opportunity, due to the lapse of time, to make any reasonable inquiry as to the accuracy of the plaintiff’s assertions, that is an element of actual prejudice. The fact that medical records suggest that his current account was not given contemporaneously with the events or at any stage during his naval service may lead to an allegation of incomplete record-keeping or an explanation for his omission. It is unlikely that the Commonwealth will be able to rebut such an allegation or challenge effectively an explanation.

82 Secondly, as noted above, the Commonwealth itself has at least an evidentiary onus of disentangling other contributing causes, in accordance with the principles established in Watts v Rake and Purkess v Crittenden. Its prejudice will extend to an inability to undertake that task.

83 Thirdly, it is wrong to treat the apparent weakness of the plaintiff’s case as a reason which favours the grant of an extension of time. As noted above, if the plaintiff’s case is treated as weak, that should be a factor militating against an extension of time. If the trial judge was not prepared to treat it as a weak claim, he should have given more weight to the apparent prejudice to the Commonwealth in not being able to dispute a claim with reasonable prospects of success.

84 This last matter appears to have significance in relation to the primary basis of his Honour’s conclusion. Thus, at [53], the primary judge stated:

“In any event the absence of medical records is likely to be a matter that will tell against the plaintiff’s case rather than prejudice the Commonwealth. As Dr Skinner points out in her report to the Commonwealth of 15 August 2005, one of the indicators of Post Traumatic Stress Disorder is persistent symptoms of increased arousal and anxiety and the absence of any medical records indicating such symptoms makes it difficult, if not impossible, to establish the existence of the disorder.”

If his Honour were inclined to accept that evidence of Dr Skinner, as appears to be the case, it was a powerful consideration against the grant of an extension of time.

85 In my view, even on the assumptions made by his Honour in relation to satisfaction of the gateways in s 60I(1), the exercise of discretion under s 60G(2) miscarried. The extension of time should have been refused.

Conclusions

86 I would propose the following orders:

(1) Appeal allowed.

(2) Order of Howie J made on 14 October 2005 extending the limitation period to the date upon which the statement of claim was filed set aside.

(3) In lieu of the orders made below, order that:

(a) the application to extend time be dismissed;

(b) the proceedings commenced on 4 October 2002 be dismissed;

(c) the applicant/plaintiff pay the costs of the Commonwealth in the Court below.

(4) The Respondent pay the Commonwealth’s costs of the appeal.

(5) Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to the costs of the appeal.

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LAST UPDATED: 02/08/2006