The s 60 I (1)(b) and cl 4.4(a) gateway
26 It followed that the application by the notice of motion filed on 14 August 1997 was made within three years after Mr Smith became aware of all three matters in s 60I(1)(a); indeed, it was made before he became aware of them. It was not suggested that there could not be premature application. That left whether the application was made within three years after Mr Smith ought to have become aware of those matters.
27 Actual awareness and whether a plaintiff "ought to have become aware" are distinct. In Commonwealth of Australia v Shaw (2006) 66 NSWLR 325 Basten JA, with whom Handley and Ipp JJA agreed, said -
" 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 para (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 para (a)."
28 Whether a plaintiff ought to have become aware has been said to involve whether the plaintiff took all such action as it was reasonable for him to take to find out: Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36] per Foster AJA, Mason P and Einstein J relevantly agreeing; Commonwealth of Australia v Smith at [103] per Santow JA, Handley JA agreeing; Commonwealth of Australia v Shaw at [31]. The Commonwealth submitted that the judge failed to address whether the application was made within three years after Mr Smith ought to have become aware of the matters in s 60I(1)(a). It submitted that the judge should have found, and this Court should find, that Mr Smith ought to have become aware more than three years before August 1997 of his personal injury, its nature and extent and the connection with the collision because -
· Mrs Higgins told him in 1991 that he may have PTSD and had to go to a psychiatrist;
· acting reasonably, he ought then to have gone to a psychiatrist (which he did not); and
· if he had gone to a psychiatrist, on the probabilities he would have been told what Dr Holwill told him in 1997, and this would have occurred before August 1994.
29 The submission clearly enough owed much to the reasoning, to a finding adverse to the plaintiff, in Commonwealth of Australia v Shaw at [74]-[77].
30 It is correct that the judge did not address when Mr Smith ought to have become aware of the matters in s 60I(1)(a), as appears from his [84] set out above. However, that was because, in the manner the application for extension of the limitation period was conducted, he was not called on to do so. The Commonwealth did not in the end put in issue that Mr Smith ought to have become aware of the matters in s 60I(1)(a) more than three years prior to August 1997, or submit that his application should fail for that reason. The conduct of the application was relevantly as follows.
31 In his opening counsel for Mr Smith identified ss 60G and 60I, and said -
"The Court must be satisfied that the plaintiff did not know that the personal injury had been suffered or was unaware of the nature and extent of the personal injury suffered or was unaware of the personal injury by the defendant's acts or omissions at the expiration of the relevant limitation period or thereabouts.
The Court in my submission will be satisfied, on the plaintiff's submission, of all the three matters referred to in s 60 I subsection (1) because the plaintiff didn't know he suffered the injury alleged, namely, the post-traumatic stress disorder related to the incident until he had seen Dr Holwill later in 1997.
32 This took up only s 60I(1)(a) and actual knowledge of awareness. Counsel did not advert to s 60I(1)(b) and what Mr Smith ought to have been aware of. Counsel for the Commonwealth did not add to this by way of opening.
33 There came a time in the cross-examination of Mr Smith when counsel for the Commonwealth asked what matters Mr Smith noticed about himself after the collision (nightmares et cetera), and -
"BARRY: Q. these matters that concerned you, you recognised had the effect of involvement in the collision on you?
A. No.
Q. Didn't you told put [sic] one and one together?
A. No.
Q. Did you not work out in your own mind if you were not having such concerns before the collision, you were having such concerns after a collision, that the collision may have been the thing that made you more concerned?
A. No.
Q. I suggest to you that that was a connection that you did make?
A. No, I didn't.
Q. Do you agree with me that it is a reasonable connection to make in the circumstances?
MAHONEY: I object to that.
HIS HONOUR: That is just arguing.
BARRY:l No it's not, your Honour, it is because of the subsection B of Section 60 I [sic].
HIS HONOUR: No, I won't allow it. Whether something ought to have happened is nothing a witness can give evidence about.
BARRY: Well, I have given him the opportunity to deal with it; I suppose that is all I need to do. I just wanted to give him the opportunity of dealing with that matter. If your Honour takes the view I don't need to take it any further, then I won't."
34 The cross-examination did not take up with Mr Smith his appreciation of Mrs Higgins telling him that he had to go and see a psychiatrist or why he did not go to see a psychiatrist.
35 Counsel for Mr Smith in his submissions addressed Mr Smith's actual awareness. He did not address satisfaction of the "ought to have become aware" requirement in s 60I(1)(b). He did say -
"MAHONEY: I apprehend the submission will be made by the defendant that the plaintiff does not pass the gateway as a result of the 1991 intervention [that is, Mrs Higgins' assistance] or alternative, the 1970, 1971 treatment. I think I have addressed both of those issues. I don't apprehend that it will be submitted that if the plaintiff first became aware in 1995 and subsequently in 1997 when he saw Dr Holwell [sic], he hasn't passed through the gateways provided in section 60G and the schedule to the Act. I reserve my position to address on that if that submission is made. I don't apprehend it will be but I would like to reserve my position on that."
36 This is not entirely clear, but was concerned with actual awareness. Counsel for the Commonwealth did not take up the implicit invitation to contest on other grounds passage through the gateway as a result of the 1991 intervention. He made submissions on "findings in questions of fact in relation to s 60I … what Mr Mahoney has called the gateway". He said that they involved "fundamentally a question of whether or not your Honour accepts the evidence of the plaintiff in relation to those questions of fact because that is the only evidence on the question". He said nothing about satisfaction of "ought to have become aware" in s 60I(1)(b).
37 The Commonwealth submitted in this Court that counsel had been prevented from cross-examining Mr Smith on what he ought to have become aware of, by the judge's rejection of the question about making a reasonable connection because "[w]hether something ought to have happened is nothing a witness can give evidence about". It said that the reason given by the judge reflected s 60I(1)(b), to which the judge's attention had been drawn.
38 I do not accept the submission. The rejection of the question did not preclude other questions; the reason for the ruling, understood against a question which asked for Mr Smith's abstract opinion of what was reasonable, did not preclude asking Mr Smith about the factual constituents of what was reasonable such as why he did not go to see a psychiatrist after what Mrs Higgins said to him. The cross-examination had not been concerned with that at all, but with whether what Mr Smith noticed about himself after the collision caused him to "put one and one together", it seems meaning link the nightmares etcetera with the collision.
39 Even if counsel perceived that cross-examination on what Mr Smith ought to have been aware of had been impeded, however, that did not prevent the Commonwealth from submitting that the judge should find that Mr Smith ought to have became aware of the matters in s 60I(1)(a) at a time more than three years prior to August 1997. Counsel observed that he had given Mr Smith "the opportunity to deal with it"; if in counsel's perception "it" was what Mr Smith ought to have been aware of, the submission could be expected. There was no such submission, and in particular there was no submission to the effect of the submission made in this Court. The submission made in this Court was not elaborate, and could readily have been made to the judge.
40 It is not incumbent on a trial judge either to trawl through the evidence or to enunciate legal issues in order to expose and deal with something which a party does not raise in submissions. Nor can the party expect that leave will be granted to appeal on the ground of failure to deal with something which it does not raise in submissions. In my opinion, in the circumstances I have described leave to appeal in relation to whether and when Mr Smith ought to have become aware of the matters in s 60I(1)(a) should be refused.
41 In any event, it is by no means clear that there is substance in the Commonwealth's submission earlier noted.
42 Mrs Higgins filled out for Mr Smith the form claiming a disability pension. The completion included that he claimed PTSD as one of his disabilities and that in late 1969 he was treated by an unnamed psychiatrist in Saigon for the condition PTSD. Mr Smith said that Mrs Higgins told him that he had PTSD, and that he had never heard of it before; he said that he told her of his anxiety, sleep disturbance and so on, and that she told him that in her opinion that amounted to a medical condition known as PTSD. At another point Mr Smith said that Mrs Higgins "said I may have PTSD and that I had to go to a psychiatrist". However, he said that he "didn't really understand the term", and also gave the evidence -
"Q. In 1999 [sic], when Mrs Higgins told you that you were suffering from post traumatic stress disorder; what did you understand by those words?
A. I didn't really understand it but I understand, understood the drift of it to be war neurosis type disease. It was a new term to me at the time."
43 I have set out the judge's finding in his [82]. It was not submitted that his view that Mr Smith was mystified, and did not think of his symptoms as demonstrating a psychiatric illness, was incorrect. In those circumstances, going to see a psychiatrist may not have been something which it was reasonable for Mr Smith to do.
44 Further, the application for a disability pension did lead to Mr Smith seeing psychiatrists. The Department of Veterans' Affairs arranged for psychiatric examination by Dr Marinovich. Dr Marinovich reported "Post-traumatic stress disorder - Due to war service, especially arising out of a truck accident during duty". He opined that the prognosis was poor and the condition was permanent. Mr Smith was then examined at the instance of the Department by Dr Ian Parkin, who reported on 4 November 1992. Dr Parkin's report referred rather discursively to Mr Smith's service in Vietnam, and in particular to there developing a fear of flying, but also to the collision and Mr Smith's involvement in getting the survivors on board which was said to be "a pretty grizzly [sic] experience" and to seeing air crashes and being subject to severe storms at sea. (In his evidence Mr Smith denied that he told this to Dr Parkin - it is not clear whether his denial was of both his involvement and its description as a grisly experience or only of the latter.) In Dr Parkin's opinion, Mr Smith satisfied the criteria for PTSD which "was related to the on-going traumas of his Navy experience", explained no further than "I believe that Vietnam was probably the most significant on-going trauma but he really has suffered a number of traumas".
45 The likelihood that, had he gone to a psychiatrist in response to what Mrs Higgins said to him, Mr Smith would have been told what Dr Holwill told him in 1997, may be tested by these attendances. Not by Dr Marinovich, and it is not at all apparent that Dr Parkin regarded the collision as a material contributor to the PTSD. It depends on who Mr Smith had gone to. By the time Dr Holwill was asked to report in 1997 there had come a new focus, because an advertisement led Mr Smith to consult a solicitor in 1995 and his proceedings against the Commonwealth had already been brought. If Mr Smith had gone to Dr Phillips, presumably he would have been told that he did not have PTSD and that his psychological problems were unrelated to the collision.
46 It is not appropriate to express a concluded view, amongst other reasons because what Mr Smith ought to have become aware of was not adequately dealt with in the evidence, but the doubt (at the least) as to the substance of the Commonwealth's submission is a further reason why leave to appeal should not be granted in relation to whether and when Mr Smith ought to have become aware of the matters in s 60I(1)(a).