Cavanagh v Commonwealth of Australia

Cavanagh v Commonwealth of Australia - [2006] NSWSC 382 - NSWSC 2006 case summary — Zoe

[38]

19 According to the plaintiff, by 1999 he had a number of health problems, including high blood pressure, reflux problems and polymyalgia rheumatica. He responded to an advertisement and consulted the Vietnam Veteran's Counselling Service. That service referred him to Mr Duggan, a psychologist. The plaintiff saw Mr Duggan late in 1999 or early in 2000. Mr Duggan reported on 17 February 2000, and in that report recorded that the plaintiff sought assistance because of his episodes of depression, outbursts of anger and high stress. Mr Duggan wrote: "It is felt the real problem is the underlying causality for John's mood swings, his feel[ing]s of anger, fear, and depression. John suffers from severe mood swings. He can be extremely anxious and depressed and then change into being in an irritable mood sometimes culminating in a transient rage (10-15 minutes). It became apparent that John had experienced psychological problems over a protracted period and that the presenting problems were only some of John's difficulties. But the immediate requirement was seen to be to reduce John's stress levels and effect some anger management. John felt that if he first disposed of his business this would remove the reason for a significant proportion of his stress and he might be more able to resolve the underlying reasons for his difficulties. The business was sold and John returned to counselling sessions in January 2000. However to varying degrees John is still suffering from the presenting difficulties, the disturbed sleep patterns, and intrusive thoughts. John has related some of the details of his experience and the visual images he has retained from his involvement in the Voyager disaster. John undoubtedly underwent a series of traumatic experiences at that time. He has retained vivid images of his experiences. He was 22 years old at the time. He has also related some details of the traumatic events he experienced when a North Vietnamese shell exploded below deck in the HMAS Perth. John saw a shipmate suffer severe injuries and gave the injured man help and comfort. A summary of therapeutic issues in the case. To date John has related his experiences of at least two traumatic events that have involved a potential life threatening situation for John and the death and injury of shipmates. It would seem that his psychological response to these events might have been concealed or delayed by the close proximity and consequent emotional support of his shipmates. John now has recollections of his fear and images of the horror of these events and is clearly ill at ease when discussions are directed to them. John now suffers from intrusive thoughts, poor sleep patterns and disturbing dreams. Since leaving the Navy John has always had difficulties with social contacts. He has avoided personal interactions outside of his immediate family and a small social/business network and now because of his inability to cope emotionally has had to sell his business. He has mood swings from depression to irritability with outbursts of anger. John's suicidal thoughts shortly after he had left the Navy give an inference as to a possible beginning of these serious psychological difficulties. The range of symptoms outlined above support Dr Buckley's initial diagnosis of PTSD and are presently impairing his functional ability and emotional well being."

[39]

21 Subsequently, the plaintiff saw Dr Glaser, a psychiatrist, on 31 October 2001. Dr Glaser obtained a very detailed history from the plaintiff of his experience on the "Melbourne" on the night of the collision, and the doctor also obtained a history as to the plaintiff's mental wellbeing thereafter. I do not propose to record here the details of the history taken, but Dr Glaser expressed this opinion: "This fifty-nine year old gentleman who has now retired from his business as a generator maintenance person, is experiencing ongoing psychiatric problems which continue to trouble him considerably, despite having received some interventions from a psychologist and a psychiatrist. He has experienced a number of unfortunate events during his life including the separation of his parents when he was an infant (although he developed a good relationship with his stepfather subsequently), his involvement in the Voyager collision, witnessing the severe injuries of a young fellow sailor when their ship was fired upon in Vietnamese waters, some breaches of safety standards when he was working on tanker ships after he left the navy and a chronic medical condition (polymyalgia rheumatica; which is now under good control). All of these have made a contribution to the development of his current significant psychiatric problems. The Voyager disaster, however, remains a prominent influence on the expression of his current psychiatric symptoms. He himself was subjected to potentially life-threatening experiences at the time (particularly staying by himself, deep in the bowels of the damaged Melbourne tending a pump) and also witnessed the distress of the survivors and the eventual sinking of the aft section of the Voyager. His substantial abuse of alcohol started shortly after the collision and the events of the collision still are responsible for specific problems such as his nightmares and his fears of working in enclosed spaces. In terms of his psychiatric state, he continues to suffer from a post-traumatic stress disorder which is of mild to moderate severity and which has been complicated in the past by alcohol abuse. His current problems include quite marked irritability, mood swings, intermittent sleep disturbance, nightmares, some social isolation, a generally raised level of anxiety, specific anxiety in certain situations (e.g. enclosed spaces) and concentration difficulties."

[73]

55 Santow JA said, after noting the features that led to the refusal of the extension applications in those three cases (at [150]-[153]: "150 In all the other applications the court found that the Commonwealth would not suffer significant prejudice and extended the limitation period. The circumstances of each case and the history of each applicant are of course different. The Commonwealth is entitled to argue that it would suffer prejudice particular to the circumstances of the applicant in each case. However, the Commonwealth continues to contend that lack of medical and employment records and the unavailability of witnesses have created significant prejudice. This is despite the fact that these arguments have so frequently been rejected by the court in finding that it is just and reasonable to extend the limitation period. Similarly, the Commonwealth has consistently run (and lost) arguments that it would suffer significant prejudice resulting from the loss or destruction of defence records, principally consisting of the applicant's service records. Gretton v Commonwealth [2005] NSWSC 437; Evans v Commonwealth [2005] NSWSC 280; Stringer v Commonwealth [2004] NSWSC 1132; Beasley v Commonwealth [2001] NSWSC 998; Ackland v Commonwealth [2001] NSWSC 991; Fisher v Commonwealth [2001] NSWSC 779; Terry v Commonwealth [2001] NSWSC 778; Andrew v Commonwealth [2001] NSWSC 733; Heffernan v Commonwealth [2001] NSWSC 687; Philippe v Commonwealth [1999] NSWSC 1118; 151 The Court has regularly found that sufficient evidence had been retained either by the applicant or the Commonwealth or both. This was either sufficient to allow a fair trial or the Court found that the difficulties were more likely to affect the plaintiff who bore the onus of establishing the injury. Baragwanath v Commonwealth [2005] NSWSC 575; Pearce v Commonwealth [2005] NSWSC 359; Simmonds v Commonwealth [2005] NSWSC 290; Evans v Commonwealth [2005] NSWSC 280; Stringer v Commonwealth [2004] NSWSC 1132; Hill v Commonwealth [2001] NSWSC 800; Beasley v Commonwealth [2001] NSWSC 998; Ackland v Commonwealth [2001] NSWSC 991; Blaxter v Commonwealth [2001] NSWSC 957; Fisher v Commonwealth [2001] NSWSC 779; Terry v Commonwealth [2001] NSWSC 778; Andrew v Commonwealth [2001] NSWSC 733; Aussems v Commonwealth [2001] NSWSC 44; confirmed on appeal [2001] NSWSC 615; Windle v Commonwealth [2000] NSWSC 1209; Watkins v Commonwealth [1999] NSWSC 1127; Philippe v Commonwealth [1999] NSWSC 1118; Mancer v Commonwealth [1999] NSWSC 693 152 The Commonwealth has also regularly failed in submissions that it would suffer significant prejudice as a result of: (a) being deprived of witnesses (due to their unavailability or inability to recall) who could give evidence of the applicant's behaviour during his service in the Navy before, during and after the collision; Fullarton v Commonwealth [2005] NSWSC 444; Gretton v Commonwealth [2005] NSWSC 437; Watkins v Commonwealth [1999] NSWSC 1127; Mancer v Commonwealth [1999] NSWSC 693; (b) the doctors and medical officers who examined the applicant and wrote medical reports being unavailable or unable to recall the applicant; Fullarton v Commonwealth [2005] NSWSC 444; Beasley v Commonwealth [2001] NSWSC 998; Andrew v Commonwealth [2001] NSWSC 733; Norman v Commonwealth [2000] NSWSC 931; Philippe v Commonwealth [1999] NSWSC 1118 (c) the absence of medical records for the applicant since leaving the Navy. Levis v Commonwealth [2001] NSWSC 725; Heffernan v Commonwealth [2001] NSWSC 687; Aussems v Commonwealth [2001] NSWSC 44; confirmed on appeal [2001] NSWSC 615; Mancer v Commonwealth [1999] NSWSC 693 153 In no case has the Commonwealth succeeded in discharging the evidentiary onus by establishing that it would suffer significant prejudice on the basis of the loss or absence of this evidence."

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