17 The applicants submit that the allegations in paragraphs 1-7 of the proposed particulars cover the same subject matter as the particulars of negligence in their statement of claim. Indeed, they go so far as to submit that those very particulars of negligence, if established, could "prima facie give rise to a claim for both exemplary and aggravated damages". Resting, as those particulars of negligence do, on critical findings in the report of the Board of Inquiry published in 1985, it is said that the Commonwealth has been aware of such allegations since at least 1986 when they were first raised in claims against the Commonwealth by other members of HMAS Stalwart's company. Accordingly, the applicants submit, the Commonwealth cannot now be prejudiced by the facts and matters being relied on also to establish the claims for exemplary and aggravated damages.
18 The Commonwealth, in effect, accepts those submissions up to a point. It says that paragraphs 1-7 merely provide further and better particulars of the alleged negligence. The Commonwealth submits, however, that those particulars, if established, would not ground an award of exemplary or aggravated damages. There is no allegation of "contumelious" conduct or of "conscious wrongdoing". Findings in such terms will be necessary to award exemplary damages. Nor is there an allegation of "high-handed or deliberate conduct" made such as could sustain an award of aggravated damages.
19 In my opinion, the Commonwealth's pleading points have a good deal of validity. However, the object of particulars must be steadily borne in mind. In the present context that means the Commonwealth must be made aware of the nature of the case it is called upon to meet. Having regard to the interlocutory attention these cases have received, the Commonwealth can be in no doubt that the applicants must contend for findings of the kind I have mentioned. If such findings are not made, the relief that the applicants now wish to claim could not be granted: Trend Management Ltd v Borg (1996) 40 NSWLR 500.
20 It may be something of a stretch for the applicants to invite the necessary inferences to be drawn based on the facts and matters alleged in the proposed paragraphs 1-7, but that is what they will have to do. Mr Ktenas said that no claim for such damages had been made in 25 other cases that he has handled arising out of the toxic gas incident on HMAS Stalwart. The conditions on that vessel may require investigation. It may be that this could extend, as the Commonwealth submits, to the ship's design, commissioning and sea-trialing and, of course, to refits after each of the applicants joined the ship's company. The availability of witnesses and documents after such a long time may well be a problem. But such matters will primarily be a problem for the applicants. They will bear the onus of showing that the Commonwealth has acted consciously in contumelious disregard of their rights. For example, the assumptions in the report of Mr Davies must be made out by the applicants. The applicants will have to serve on the Commonwealth, in due course, statements of evidence of their intended witnesses, and I do not consider that the Commonwealth will relevantly be at an unfair disadvantage in dealing with these matters, notwithstanding the passage of time since 1985. Further, these same kinds of questions will have to be considered in the matters before Tamberlin J.
21 The Commonwealth submits, correctly it should be said, that no evidence has been given on behalf of the applicants explaining the reason for the delay in claiming exemplary and aggravated damages. However, I think it is plain enough that the indulgence now sought results, following a change in counsel, from "the application to the case of fresh legal minds who perceived an important new point": see Queensland v JL Holdings Pty Ltd per Kirby J at 170. Whilst the award of exemplary damages is rare, the applicants' cases are not unarguable and, in my opinion, they should have an opportunity to press their claims. I am not confident that the same can be said in respect of the claim for aggravated damages but, since the same facts and matters are to be relied on, I think that this claim may also be pursued on that basis. I also take into account, in the exercise of the large discretion whether to permit the amendment, the fact that the earlier trial dates were vacated on the Commonwealth's application because it was faced with these very claims. The applicants have accordingly paid a high price so that they may pursue them. I am not satisfied that the Commonwealth will be occasioned injustice by the amendment sought in paragraphs 1-7, and I shall allow the statements of claim to be amended so as to insert those particulars in support of the claims for additional damages.
22 However, paragraph 8 stands in an entirely different position. The Commonwealth submits that these particulars are misconceived. The relevant breach of duty is that which is alleged to have occurred on 22 October 1985. There is no allegation of a duty on the part of the Commonwealth to diagnose and treat the applicants. That is certainly not a normal incident of an employer/employee relationship. The particulars (as is made clear by the further and better particulars in Mr Rock's case set out above) impugn conduct of the Commonwealth occurring well after 22 October 1985, yet the applicants' causes of action are not based on wrongful acts or omissions after that date. This is not a case based on an employer's breach of duty over a period of time, such as a plaintiff employee may have in relation to harmful exposure to asbestos or to noise. The applicants submit that paragraph 8 alleges subsequent conduct that may be taken into account in aggravation of compensatory damages in the same way as conduct of a defendant occurring after the publication in a libel case: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 per Samuels JA at 653. Be that as it may and whatever the scope in defamation cases for the reception of evidence of a tortfeasor's subsequent conduct as exacerbating the consequences of the original publication, Windeyer J's statement approved by the majority in Gray is clear: aggravated damages relate to "the manner in which the [wrongful] act was done". The allegations in respect of the applicants' diagnosis and treatment do not relate to the manner in which the relevant duty of care was allegedly breached. Dr Phillips erects a different duty of care in one of his reports, but this is not the duty of care pleaded by the applicants.
23 Since the Commonwealth has admitted breaching the pleaded duty of care, it may be expected that each of the trials will be concerned with the issue of alleged damage suffered by the applicants, the so-called gist of negligence. It may well be that their injuries have been aggravated by the medical treatment they have subsequently received, but this will hardly relieve the Commonwealth of responsibility in circumstances where it provided the treatment. Questions of causation and remoteness at trial ought not to be complicated by entirely pointless distractions about whether diagnosis and treatment was insulting or reprehensible. To take Mr Rock's case by way of example, the allegation that his PTSD went undiagnosed for nearly seven years shows how such irrelevant considerations would have the capacity needlessly to lengthen his trial on an issue of central importance, namely, what damage he did suffer as a consequence of the incident aboard HMAS Stalwart.
24 I note that in the Mundraby and Lewis matters Tamberlin J did not strike out allegations identical with those in paragraph 8. His Honour said that he did not read that paragraph as pleading a fresh cause of action. I respectfully agree although, in my view, it certainly hints at other causes of action. Nonetheless, I am of the view that paragraph 8 is embarrassing and raises irrelevant considerations. Such an amendment would be futile and calculated to waste time and money, both in preparation for trial and at trial. Leave will not be given to make that amendment.
25 Save for the question of costs, that disposes of the applicants' motion to amend the particulars in their statements of claim. There remain pending a motion of the applicants for discovery and a motion of the respondent to set aside a subpoena. The motions are related, and I gather that the documents in dispute have now been produced for use in the Mundraby and Lewis matters. The sensible solution would seem to be for the parties to obtain consent orders in one or both of those matters giving leave to use the documents for the purpose of these proceedings.
26 So far as costs of the present motion are concerned, my inclination is to order that the costs of this motion be part of each party's costs of the claim for exemplary and aggravated damages. The Commonwealth has admitted its breach of the pleaded duty of care, and facts antedating that breach now only need to be agitated because of this new claim by the applicants, which is calculated to lengthen the trials. (Of course, evidence was always going to be required about each applicant's personal circumstances prior to the accident.) It may be fairly expected that each applicant will recover a verdict. Only the quantum of damages will be in dispute. The costs of this new claim should be able to be discretely dealt with, if necessary. As the parties requested when I reserved my decision on the motion, I shall give them an opportunity to be heard on the question of costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.