A Consideration Of The Submissions
58 Mr Hoeben submitted, in my opinion correctly, that for more than 3 years prior to 6 November 1998, Mr Nelson had been aware of the nature and extent of the personal injuries from which he was suffering, and that they arose from the occurrence on 1 March 1981. In those circumstances the "label" given to the conditions from which he was suffering did not assist a submission that he was unaware of either the nature or, more particularly, the extent, of the personal injury suffered. The contrary submission was that it was not until March 1997, when Mr Nelson read that Mr Bourke defined the condition as Post Traumatic Stress, that he became aware that he had a medical, as opposed to an emotional, condition and, accordingly, it was not until then that he became aware of the extent thereof.
59 The same medical condition may be described in somewhat different terms by different persons specialised in the field. In the present case, whilst Mr Bourke referred to the condition of Post Traumatic Stress, Dr Dinnen offered a diagnosis of Generalised Anxiety Disorder and Panic Disorder and Chronic Post Traumatic Stress Disorder. I appreciate that Mr Nelson was not made aware of Dr Dinnen's diagnosis, and it would seem that the "medical name" referred to in the letter from the Commonwealth of 8 December 1995, granting the pension for "Generalised Anxiety Disorder", was taken from Dr Dinnen's report.
60 However one labelled the condition, Mr Nelson was clearly aware of all the symptoms from which he was suffering. That awareness dated back a number of years prior to 6 November 1995.
61 In CRA Limited v Martignago & Anor [1996] 39 NSWLR 13, this Court had to consider a somewhat similar problem. Clarke JA, with whom Priestley and Powell JJA agreed, gave the judgment of the Court. It is necessary to refer to the facts in a little detail.
62 On 22 March 1985 the respondent, in the course of his employment, sustained a neck injury lifting heavy pipes. On 4 August 1986, he suffered an injury to his lower back and neck in the course of his employment. The two incidents were the subject of claims against his employer and, so far as the second incident was concerned, a claim against another party.
63 The respondent sought medical assistance from doctors, but did not bring any proceedings until a Statement of Claim was lodged on 11 November 1992, by which time both claims were statute-barred. Accordingly, he sought an extension of time, the basis of his claim being that he was unaware that he was suffering from disc pathology in his neck and back until early 1992, when a specialist apprised him of the nature of his problem and performed surgery involving his cervical spine.
64 The application was dismissed by a Master, who was satisfied that by May 1988, when the respondent had consulted a doctor, that there had been brought to his attention a number of medical opinions, which showed that there were structural problems with his neck. The Master was also satisfied that on 24 May 1988, the respondent was aware that an operation was necessary to relieve him from his pain, and that he was aware of, and had available to him, the knowledge upon which he ought to have brought an action, and that "the additional information brought to his attention after the expiry of the limitation period added little to what the respondent knew beforehand".
65 The respondent's appeal to a Judge of the Common Law Division was upheld, and the appellant then appealed to this Court. That appeal was allowed.
66 Clarke JA noted the distinction between sub ss 60 I(1)(a) and (b) as to an applicant's being "aware": (sub s (a)); and circumstances in which he "ought to have become aware": (sub s (b)).
67 At p 20, his Honour said that well before 1992, the respondent knew that he had serious problems in his neck, and that he had been told by a doctor in 1988 that his bones were worn out, and that he needed an operation in which his neck would be fused. He had also discussed the operation with a treating doctor at about the same time. His Honour continued:
"It may be accepted, in the light of his evidence that he had not been told prior to May 1992 in direct terms that he was suffering from a disc prolapse and pressure on the spinal chord nerves, that he was not aware of the precise medical condition but that acceptance doesn't detract from the fact that he was aware of serious neck problems which, in the view of more than one doctor, required a fusion involving the transportation of some bone from his right hip.
In FJ Walker Limited v Webber (Court of Appeal, 16 November 1989, unreported), a case involving section 57 and section 58 of the Act, Meagher JA, who gave the principal judgment, said (at 6):
'… One can know the "nature and extent" of one's injury even if one is ignorant of the final form which it will take … In general, not only need the applicant not know his final state, he need not know from what condition he is suffering. If he knows "the various signs and symptoms" of his condition, and a reasonable man in his position would know of this potential, that is sufficient … by way of exception to the previous proposition, if an applicant knows of his "signs and symptoms" but a reasonable man in his position would consider them as signifying as trivial a condition which in fact was serious, he cannot reasonably be held to know the "extent" of his injury'.
I can readily accept that those statements of principle were accurate in the context of the facts and legislation (section 58) then under discussion. In the context of section 60 I there is no reason to import concepts involving the hypothetical reasonable man. Sub section (1)(a) is concerned solely with the actual knowledge of the applicant and section 60 I (1)(a)(ii) poses a factual question which cannot be answered by some universal or overriding test. On the other hand I would respectfully agree with Meagher JA that an applicant may not know the medical description or diagnosis of his or her condition and yet be unable to establish that he is unaware of the nature and extent of his injuries.
The sub section is concerned to enquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who is unaware until years later that there were serious complications flowing from that blow (for example, osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.
I recognise that I have put the matter very generally. That is because the nature of the factual enquiry is not susceptible to precise definition. The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant enquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the enquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second enquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the enquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.
In the particular circumstances of this case it seems to me that the respondent knew the nature of his injury by 1988. The only question is whether, having regard to the information he had been supplied, he knew its extent. I accept the respondent was unaware of the precise description of the condition from which he was suffering. Nonetheless he was aware that he was suffering regular agonising pain involving his neck and that by May 1988 two specialists considered that that condition could only be alleviated by an operation involving the fusion of parts of his cervical spine. The fact that he was unaware, as he said, that his spinal chord nerves were caught in damaged discs is to my mind not in point for he knew, in broad terms, the condition from which he was suffering. He also knew the symptoms arising from that condition and the procedures considered necessary to alleviate it". (My emphasis)
68 In the instant case, Mr Nelson was aware of all the symptoms from which he was suffering. He had received psychological counselling and had seen a psychiatrist. There was no suggestion that the symptoms would become worse. The extent or limits of the condition from which Mr Nelson was suffering had been reached. In these circumstances, it seems to me, that his lack of knowledge that the problems could be described as Post Traumatic Stress did not in any way affect the extent of his personal injury. Rather, that was a way in which it could be described. However, as Clarke JA said, the Court is not concerned "with the technical name or description of an injury but its effect, actual and potential, upon the applicant". It would be very strange if a person, aware of all the symptoms and in circumstances where there was no evidence that they would worsen, could say that he or she was not aware of their extent merely because different doctors may describe them differently.
69 Martignago was approved by the joint judgment of the High Court in Harris v Commercial Minerals Limited & Ors (1996) 186 CLR 1. In that case, the trial Judge, in considering the "nature or extent" of the injury, accepted the worker's oral evidence that he thought his illness or disease would remain static, and would not necessarily deteriorate further. In this Court, Handley JA found that the worker's awareness of the nature or extent of his disease was, for all practical purposes, complete between 2 April 1979 and 15 August 1986. The High Court found that his Honour, in coming to this conclusion, "effectively applied an objective test".
70 The High Court was of the opinion that neither reasonableness nor constructive knowledge was an element in a consideration of sub s (1)(a).
71 Their Honours then considered the extent of the injury. At p 11 they said:
"The 'extent' of an injury must include all its consequences. It is not an unnatural reading of section 60 I (1)(a)(ii) to hold that what the Court must consider is the total extent of the applicant's injury in determining whether, at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury. Unless that sort of construction is adopted, the Act will fail to provide for the very sort of case for which the legislation is designed to provide a remedy. That is to say the case where the most serious consequences of an injury only arise after the expiration of the limitation period.
Thus in The Commonwealth v Dinnison , although the applicant was aware during the limitation period that he had an anxiety state, it was only after the expiration of that period that he became aware that he had a psychiatric illness. Because of that fact, the Full Court of the Federal Court held that he was not aware of the extent of his injury. Similarly in F J Walker Limited v Webber , the New South Wales Court of Appeal held that, although the applicant knew that he had a disc lesion, he was unaware of 'the extent' of his injury because 'he did not know it would or could lead to a surgical fusion or unfitness for work'.
The better view of section 60 I (1)(a)(ii) is that 'the extent' of the injury is to be determined as at the date of the application and not at the expiration of the limitation or earlier period. When the extent is so determined, the applicant must prove that, at the expiration of the limitation or earlier period, he or she was unaware that the injury was so extensive".
72 Their Honours then quoted at length from the judgment of Clarke JA in Martignago, to which I have referred, and considered various cases in which there had been a further deterioration in the condition of the applicant, which meant that there was not an appreciation of the extent of the injury. They continued, at pp 13 and 14:
"These statements imply, correctly in our opinion, that an applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all of its pathological and physiological incidents . If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of section 60 I (1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathological consequences of the injury . Thus, the New South Wales Court of Appeal has held that an applicant who knew that he had a disc lesion that caused him great pain and that the condition could only be alleviated by a spinal fusion was aware of 'the extent' of his injury although he was unaware 'that his spinal chord nerves were caught in damaged discs'." (My emphasis)
73 The position, in the present case, is that Mr Nelson was aware of the various symptoms from which he suffered. He was aware that he had received some treatment. There was no suggestion that the condition would deteriorate, such that the symptoms from which he had been suffering for a long period would change or become worse, thus not enabling him to be aware of the "extent" of his injury. The only new fact, which came to his attention, was that the symptoms, of which he was fully aware, were described by Mr Bourke as Post Traumatic Stress. He sought, thereupon, to draw a distinction between what he had thought was an emotional condition and a medical condition. However, whether one describes the condition as emotional or medical, the symptoms and effect upon him were the same, and there is certainly no suggestion that having been told that he was suffering, in the opinion of Mr Bourke, from Post Traumatic Stress, that he sought any further treatment or that his condition changed. In these circumstances it would be, in my opinion, fanciful to suggest that Mr Nelson was not aware of the extent of his injury for many years prior to November 1995, or that his becoming aware of Mr Bourke's report in any way had an effect upon the extent of the injury.
74 In Commonwealth of Australia v Dinnison (1995) 56 FCR 389, the respondent instituted proceedings in tort against the Commonwealth in 1988 in relation, inter alia, to psychiatric illness suffered as a result of his presence at nuclear tests carried out at Maralinga. The Commonwealth pleaded the Limitation Act. The respondent believed for some time that he had suffered physical injury and anxiety as a result of exposure to nuclear radiation, but had not perceived any psychiatric injury until a medical examination in 1993. In these circumstances he alleged that he was unaware of the extent of the injury.
75 At p 399, Gummow and Cooper JJ, in their joint judgment, said that the trial Judge had found that the respondent held the view that he suffered injury as a result of exposure to radiation, but that the case relied upon was not one of radiation damage, but of psychiatric damage, specifically the causing of a chronic and disabling anxiety state. Their Honours said that it followed that the question of the establishment of a cause of action for the purposes of the application of the legislation was to be approached in terms of the current law relating to the infliction of damage by "nervous shock".
76 The applicant annexed to his affidavit in support of the application a report of Dr Dinnen, and said that until he was given it, he was not aware of any medical evidence that would support his claim against the Commonwealth. Dr Dinnen offered the following opinion:
"This patient is suffering from a chronic anxiety state as a result of his experiences at Maralinga during the atomic testing in 1957. His involvement with Aborigines at the time has much affected his life, and coloured his experiences. He perceives that his general health has been adversely affected by his exposure to radiation at Maralinga".
77 The trial Judge found that it was not until the applicant was examined by Dr Dinnen that he was made aware of the fact that he had a psychiatric injury, as opposed to physical injuries, from which he considered that he had suffered, and the existence of which caused understandable anxiety.
78 The distinction between that case and the present is that the trial Judge's finding was that the applicant had not been aware that he was suffering from any psychiatric injury until such time as he read the report of Dr Dinnen. However, in the present case, Mr Nelson was aware that he was suffering from an emotional state, and there was no evidence to suggest that there was any difference between that state and Post Traumatic Stress. Indeed, it was the condition from which he was suffering that constituted Post Traumatic Stress.
79 In the result, I am of the view that Mr Nelson was aware of all the symptoms from which he was suffering and, therefore, the extent of his personal injuries. The mere fact that he was not aware that those symptoms could be characterised as Post Traumatic Stress does not, conformably with the authorities to which I have referred, lead to the conclusion that he was unaware of the extent of the personal injuries. It would be, in my opinion, an extraordinary result if, having the awareness he did, he could nonetheless overcome the problems created by sub s (a)(ii) because doctors' views varied as to the way in which the problem was described.
80 In any event, Mr Nelson had to overcome not only subjective awareness, but the requirement that he ought to have become aware. As I have said, on several occasions, his symptoms were well known to him, and he was treated for them. In these circumstances, it seems to me, that there is much force in the submission of Mr Hoeben that he ought to have asked Mr Bourke and/or Dr Dinnen the cause of his problems. Further, he saw Dr Pattinson, a psychiatrist of his own choice and whom he paid. There was no reason he could not have asked him from what he was suffering. There was nothing, so far as the evidence disclosed, precluding Mr Nelson's asking such a question and, if he did not receive a satisfactory answer, seeking further medical advice.
81 It is important to note that the trial Judge did not consider, so far as I can see, the application of the principles to which I have referred, grounded as they are in sub ss (a)(ii) and (b). In that regard, I consider that his discretion miscarried. However, I also consider that the discretion miscarried in another important particular.
82 His Honour said that it was necessary to determine whether it was just and reasonable to extend time. But, he did not refer to the general principles, which inform the way in which that discretion should be considered.
83 In Martignago, Clarke JA said, at p 19, in relation to the exercise of discretion in favour of making an order:
"That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the Master held was the situation in this case, would not be relevant. In my opinion it would be a highly relevant matter for consideration in the exercise of discretion. I say this in particular having regard to the policy underlying this part of the Act to which reference was made by Deane J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. There his Honour said (at 250-251):
'It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until more than 12 months before the commencement of the proceedings'."
84 At page 22, his Honour said:
"Thirdly, the fact that the respondent had the means of discovering the extent of his injury readily available to him was, in my view, relevant to the exercise of the judicial discretion under section 60 (g) (sic) and was of primary importance. In this case his Honour did not have regard to it and in this respect was, in my opinion in error."
85 In Harris, the High Court emphasised the importance of the discretion. Their Honours said, at p 14:
"Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. Unawareness of all the consequences may get the applicant through the section 60 I (1)(a)(ii) gateway, but will not guarantee a passage through section 60 G".
86 In Drayton Coal Pty Limited v Drain (Court of Appeal - 22/8/95 - unreported), Gleeson CJ said, at p 8:
"It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of section 60 I (1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff 's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly the state of a plaintiff 's awareness of certain acts or omissions connected with the plaintiff 's injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, section 60 G (2) may, depending upon the facts and circumstances of the case, operate as an important qualification upon the practical effect of section 60 I".
87 None of these passages refer to, let alone place emphasis on, prejudice to the defendant. In coming to my view in this matter, I have not overlooked Mr Hoeben's concession about absence of prejudice.
88 The trial Judge contented himself by saying that it seemed to him that a fair trial could be held, notwithstanding the time which had elapsed, and that he considered it to be just and reasonable to grant the extension of time. However, if I may say so with respect, his Honour does not seem to have had any regard to the types of questions to which I have referred, and which are relevant to the exercise of the discretion. Not only did this, in my opinion, cause his discretion to miscarry, it also led to a ground of appeal based on lack of reasons. Because of the conclusion to which I have come, I find it unnecessary to pursue this.