For purposes of s60 I (1)(b) of the Act, did Mr Smith become aware, or ought Mr Smith to have become aware, of the matters listed in s60 I( 1)(a) at the time of the expiration of the limitation period (or earlier when proceedings might reasonably have been instituted)?
89 At trial, the Commonwealth submitted that for the purposes of s60I(b), Mr Smith "ought" to have been aware of all the three matters because, having connected his symptoms with the collision, he should have sought counselling or other psychiatric help. If he had, he would have been advised that he was suffering from a psychiatric injury as a result of the collision; Judgment [25], [35].
90 The primary judge having stated that the submission that Mr Smith ought to have sought counselling was "a courageous one", found that the submission failed because Mr Smith did not realise that he was ill. Mr Smith was not suffering from a physical injury such as "a longstanding and troublesome pain in the neck or leg", one which might reasonably be expected to cause a patient to seek medical help. The primary judge concluded that "because he did not know that he was ill and injured he had no reason to seek medical help"; Judgment, [36].
91 However, the Commonwealth submitted on appeal that the primary judge had erred in failing to take account of evidence that Mr Smith had been referred for psychiatric treatment in February 1985. The Commonwealth relied here on evidence before the primary judge, given in chief by Mr Smith (on 31/08/2004 at T, 53, 54.16 and then in cross-examination at T, 57.52-58.44) and also on evidence given by his wife in their divorce proceedings. This evidence was that, following a fairly turbulent period in his marriage when he was drinking heavily, and when he had made angry and violent outbursts towards his then wife, he in a fit of remorse had in her presence consulted the family doctor, Dr Stephenson, in 1985. Mr Smith's former wife deposed that Dr Stephenson had in 1985 referred Mr Smith to a psychiatrist (affidavit 26 March 1985 in Family Court proceedings para 10). Mr Smith in his evidence nine years later said that he could not recall being given such a referral to a psychiatrist. He admitted Dr Stephenson may have said "Do you want to go for counselling". Mr Smith's evidence was that "as far as I can recall he never said anything about a psychiatrist" (T, 54.10). There was no attack on the credit of his former wife.
92 The Commonwealth relied heavily on this evidence, though it fell short of an admission by Mr Smith that the alleged referral had been proffered. The Commonwealth submitted that Mr Smith "ought" following such a referral, to have been or become "aware" of the three matters listed in s60I(1)(a)(ii)-(iii) and that Mr Smith must have known "that personal injury had been suffered". The Commonwealth submitted that his awareness (or knowledge as the case may be) may have been actual, from the act of Dr Stephenson in referring him to a psychiatrist, or it may have been constructive. This was because, had he consulted the psychiatrist, he would have become fully aware of his condition. Thus the referral itself would have put "an honest and reasonable person on inquiry" so as to progress to psychiatric consultation.
93 The Commonwealth complains that the primary judge made no reference to this evidence of the 1985 referral in his judgment so that his discretion miscarried. However, the primary judge did cite passages from a psychological assessment of Mr Smith and from Mr Smith's own affidavit. This evidence strongly suggests that, as a result of his condition and the symptoms he was experiencing, Mr Smith would have been unlikely to have heeded advice to see a psychiatrist, if indeed such advice had been given. Though eleven years had by then elapsed since Mr Smith had left the Navy, he may well have been reinforced in his attitude by the stoicism called for by the Navy instruction to avoid discussing the event, to put it behind him and to get on with his duties.
94 On this issue, the primary judge did cite passages from the psychological assessment of Mr Smith conducted by Dr Laurel Morris, dated 30 May 2001, in which she observed that:
"It is possible that the onset of symptoms of post-traumatic stress was delayed in this case due to the demands of the situation. Mr Smith, along with others, had been instructed to avoid discussing the event, to put it behind them and to get on with their duties. In light of Mr Smith's personality style it is likely that he would have seen the expression of distress as a weakness and developed strategies of avoidance and aggression as means of coping" [Judgment, [22]].
95 The primary judge then quoted from Mr Smith's affidavit of 7 February 2002, in which he stated that even when he was advised to consult a psychiatrist in December 2000:
"at first I could not accept that I did have [a psychiatric] disorder, and was reluctant to expose myself and dredge up the memories that I had been instructed to block out over thirty-five years before" [Judgment [23]].
96 Indeed the full passage from that affidavit is important enough to quote in full:
"19 At times I did recognise that I was drinking to excess but felt so depressed that drinking was a relief. I was moody, volatile and had lost my ambition and motivation and had become a loner, with symptoms of claustrophobia, reflux, sleep disturbance and headaches. However, I did not connect these with the collision nor did I have any idea or notion that they were attributable to a psychiatric disorder resulting from my experience in the collision. It was only in approximately mid 1999 that I came into contact with my Solicitor and talked to him about my symptoms. He recommended I should seek assessment by an expert psychiatrist or psychologist. However, at first I could not accept that I did have such a disorder, and was reluctant to expose myself and dredge up the memories that I had been instructed to block out over thirty-five years before. Eventually in December 2000 I did attend an examination arranged by my Solicitor with a psychologist on the Gold Coast, Dr Laurel Morris. In the course of that assessment I had to answer a huge number of questions about my life and condition, and I had some discussion with her at the consultation. I have recently read her report dated the 30th May 2001, and now understand better how the various symptoms from which I have suffered over the many years following the collision are apparently linked to my experience on that night, and my inability to express it or discuss it ever since."
97 That passage is supportive of Mr Smith's asserted state of mind and feelings operative until after his examination by his psychologist Dr Laurel Morris upon reading her report of 30 May 2001. It demonstrates consistently with the primary judge's findings:
(a) Mr Smith's inability to connect his mental symptoms in particular either to the collision or to a psychiatric condition resulting therefrom,
(b) Mr Smith's inability to express the experience of that night or the collision or to discuss it ever since,
(c) Mr Smith's inability, until he absorbed what the psychologist told him, to accept that he had a psychiatric disorder,
(d) Mr Smith's reluctance to "expose myself and dredge up the memories that I had been instructed to block out over 35 years before", and
(e) His finally seeing a psychologist at the urging of his solicitor.
98 It could be asked why, if his solicitor was able to persuade him to see a psychologist in 1999/2000, his and his then wife's GP failed to persuade him to seek psychiatric or counselling advice 15 years earlier, always assuming his wife's evidence on that be preferred over his non-recall. But it was well open to conclude that the circumstances 15 years earlier were significantly different from those in December 2000. Then, he was being advised to seek that advice, after a period of drunkenness, involving violent behaviour by him to his wife and family. If that referral did occur then it would not have been in the context of the events of 1964, but in the context of a marital breakdown involving domestic violence where the connections were by no means obvious to the events of 1964. There is indeed no suggestion in his wife's evidence that the GP was urging him to get such advice in connection with the events of 1964. If the referral was for counselling that squarely puts it in the context of marital breakdown, not the 1964 events.
99 It was only by 1999, experiencing the continuing physical and mental symptoms that he did, and at the urging of his solicitor, that he began the process that did lead to him seeing a psychiatrist in December 2000. The primary judge who had the advantage of hearing him give evidence, was entitled to accept his explanation, that "I could not accept that I have [a psychiatric] disorder" [emphasis added], and "was reluctant to expose myself and dredge up the memories that I had been instructed to block out over thirty-five years before".
100 But what then of constructive knowledge or constructive awareness of these three matters, in the sense of whether he ought to have been known or been aware of each of these under the requirements of s60I(1)(b)? There is no clear distinction in s60I(1)(b) between awareness and knowledge. Thus the cross-reference in s60I(1)(b) to the first of the three matters in s60I(1)(a) ("did not know that personal injury had been suffered") involves the plaintiff becoming aware of a matter there earlier described in terms of knowledge.
101 The cases of Harris v Commercial Minerals Ltd (1996) 186 CLR 1 and CRA Limited v Martignago (1996) 39 NSWLR 13 note the distinction between s60I(1)(a) and s60I(1)(b) in terms of the knowledge or awareness required of the plaintiff. Neither draw a clear distinction between awareness and knowledge. These cases establish that the knowledge required by s60I(1)(a) is actual knowledge (sub-para (i)) or actual awareness of the plaintiff (Sub-paras (ii) and (iii)). Constructive knowledge has no place in s60I(1)(a) but only arises in s60I(1)(b).
102 Thus s60I(1)(b) imports for the first time a notion of constructive awareness or knowledge. Clarke JA in Martignago (at 19C and 22F) explains that the fact that the plaintiff had the means of knowledge at his disposal would be a highly relevant matter for consideration, in deciding whether the application succeeded or failed under s60I(1)(b). However, this presupposes that the plaintiff had the capacity to have recourse to that means of knowledge, unimpaired by an adverse mental condition and otherwise not constrained. Here Mr Smith was instructed not to talk about the matter by his superiors, so was under that constraint. If Mr Smith, as the primary judge concluded, for a long period lacked sufficient insight even to utilise that "means of knowledge" (consulting a psychiatrist) in order to ascertain his true condition, then that means of knowledge was not in reality "at his disposal". It was open to the primary judge to conclude on the evidence that Mr Smith did lack the capacity for insight to appreciate that he had a mental impairment; the case for not appreciating its extent is even stronger.
103 The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person "ought" to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances. Foster AJA, with whom Mason P and Einstein J agreed, said:
"In my opinion, in the same way that subs60 I (b) has been called in aid of the construction of s60 I (1)(a), the earlier sub-section can assist in the construction of the latter. It is clear that s60F, s60G and s60 I are aimed, in general, at alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. It is the actual position of the plaintiff having regard to his personal state of knowledge which is the subject of the first sub-section of s60 I (1). Although the second sub-section cannot, in my view, relate to imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. However, in my view, that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. I consider, with respect, that this is what Priestley JA was referring to in the passage cited above from [ Spadotto & Co Pty Ltd (in liq) v Raber , NSWCA, (unreported 27 October 1995)] where his Honour referred to 'knowledge of which the plaintiff (as a person) ought to have become aware.' In this regard, I consider that the remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC 518 at 530, cited by Dawson J in [ Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234] are particularly apt, his Lordship saying:
'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. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.'
In the result, I am of the view that the words "or ought to have become aware" in subs60 I (1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed. The question for the learned primary judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the documents."
104 The tort of negligence recognises that in claims for nervous shock "[t]here are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable for strangers to have in contemplation the possibility of harm to them" (per Gleeson CJ in Tame v New South Wales (2002) 211 CLR 317 at 333). But we are here dealing with a limitation statute, not recovery for nervous shock. The section focuses in a case such as this on the capacity of someone suffering mental injury to become aware that his symptoms, even distressing ones, represent a psychiatric condition; that is to say, using the language of the statutory definition of "personal injury", to become aware that they represent "impairment of [his] … mental condition".
105 Mr Smith's difficulties in accepting advice to seek psychiatric help were explained by Dr Glaser who found that Mr Smith exhibited "a marked reluctance to discuss his feelings and behaviours" [Vol 1, page 304] and that he
"has been reluctant to acknowledge the existence of his various psychological symptoms and, as he himself states, he prefers to try and suppress them and ignore them. This is part of an overall pattern of avoidance behaviour that appears to have characterized his psychological functioning since the 1964 collision. As a result, he would have great difficulty in understanding the emotional consequences of the collision and relating them to the collision itself… Thus it is most unlikely that he would have achieved an adequate understanding of his difficulties for him to be able to take legal action, until quite recently." [Vol 1, page 305]
106 The Commonwealth relied on Commonwealth v Nelson [2001] NSWCA 443. Mr Nelson received psychological counselling and consulted a psychiatrist a few years after a submarine malfunction. He continued to have counselling for about 10 years. The Court of Appeal found that even if Mr Nelson was not subjectively aware of his injury before the expiration of the limitation period under s60I(1)(a) (although the court found that he was), nonetheless he ought to have been aware of the extent of his injuries under s60I(1)(b). This was "by taking the simple step of enquiring of those treating him what his problems were" (Nelson at [89]; see also at [80]).
107 The Commonwealth submitted that Mr Smith had the opportunity to become aware of his injury and "ought to have become aware" that he had suffered an injury. The Commonwealth submitted that his failure to seek the assistance of a psychiatrist was not, in the words of Deane J in Do Carmo v Ford Excavations (1984) 154 CLR 234, "without fault on his part".
108 However, in that passage Deane J was referring to the legislative policy underlying the then s57 and s58 of the Limitation Act. Section 57 (now s57B) referred in subs (1)(c), to the knowledge of "a reasonable man, knowing those facts and having taken the appropriate advice on those facts". It did so in relation to what are termed "material facts of a decisive character relating to the cause of action". Deane J's statement can have no bearing upon s60I which does not refer to objective reasonableness nor to the taking of appropriate advice.
109 The basal question in relation to Mr Smith was therefore what someone so circumstanced as he was, ought to have been aware of in relation to each of the three matters in s60I(1)(a). This must take into account his mental impairment, the instructions he received from his superiors and any other circumstances bearing upon his capacity to appreciate that he needed to consult a psychiatrist to find out if he was suffering from "any impairment of [his] mental condition" and if so, its nature and extent.
110 In the United Kingdom, under differing legislation, the limitation periods are extendable by reference to a test which, while likewise not wholly objective, is less accommodating to plaintiffs than that applied in New South Wales. According to Adams v Bracknell Forest Borough Council [2005] 1 AC 76, a personal characteristic such as shyness inhibiting a person seeking knowledge about his injury would not preclude constructive knowledge of what that advice would have revealed, had it been sought. By contrast, Telstra Corporation v Rea (supra) held that in New South Wales, personal characteristics of such a kind are relevant. The plaintiff, to avoid constructive knowledge, must have taken all such action as it was reasonable for him to take, taking into account not only any mental impairment but also his personal characteristics and circumstances.
111 There is evidence that a person suffering from the mental impairment Mr Smith was suffering would be likely to adopt coping strategies including avoidance and denial; see, for example, the affidavits of Professor MacFarlane and Dr Morris. This is reinforced by evidence that he and other members of the Melbourne crew had been instructed not to talk about the collision.
112 The effect of the instruction from his Navy superiors to Mr Smith (to avoid discussing the event and put it behind him) should not be underestimated. It would not be unreasonable for former Navy personnel to think this was how men should handle such a situation, even after many years.