"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.
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."
43 The claimant submitted that from the opponent's affidavit and from Dr Morse's report the following conclusions could be drawn:
"(i) symptoms of emotional stress were suffered by Mr Stanley at the time of and immediately after the events of 1988;
(ii) these symptoms were diagnosed by Dr Morse as 'Post-Traumatic Stress Disorder';
(iii) over the two years prior to April 1999 when Dr Morse wrote his report, Mr Stanley had been suffering feelings of anxiety, depression and guilt;
(iv) these further feelings of anxiety, depression and guilt were diagnosed by Dr Morse as 'adjustment reaction with depressed mood';
(v) both the diagnosis of post traumatic stress and that of adjustment reaction with depressed mood were based on the symptoms, set out in the report, that had been described to Dr Morse by Mr Stanley;
(vi) the only matter of relevance of which Mr Stanley was not aware prior to receiving Dr Morse's report was that those symptoms could be described or characterised as respectively post traumatic stress and an adjustment reaction with depressed mood;
(vii) there is in the present case, just as in Nelson , no evidence to suggest that there was any difference between the emotional state which Mr Stanley described to Dr Morse and, respectively, post traumatic stress and an adjustment reaction with depressed mood: as in Nelson , it was the condition or conditions so described that constituted those disorders;
(viii) again, just as in Nelson , there was no evidence suggesting that Mr Stanley's condition would deteriorate, or had deteriorated since the expiration of the limitation period, so that the symptoms he described to Dr Morse would change or become worse, thus not enabling him to be aware of the extent of his injury;
(ix) there is no basis in the evidence for her Honour's conclusion, at the top of page 7 of the judgment, that, having regard to the medical report, Mr Stanley had no insight into or understanding of the nature and extent of the injury suffered or the connection between the injury and the defendant's acts and/or omissions until he saw the doctor in April 1999. No evidence was led from Mr Stanley in this regard. The only inference that is reasonably open on the extremely limited evidence offered by Mr Stanley regarding his awareness of the nature or extent of his injury is that the only 'insight' or 'understanding' which he lacked before reading Dr Morse's report was the knowledge that his symptoms, that is his emotional state, could be described in the technical terms attributed to them by Dr Morse. Consistently with the decision of this Court in Nelson , this is insufficient to open the gateway presented by s 60G."
44 Thus the claimant submitted that Dr Morse's diagnosis that the opponent was suffering from "adjustment reaction with depressed mood" was simply the putting of a "medical label" on the symptoms, and did not alter the opponent's understanding of the nature and effect of the symptoms experienced by the opponent. The claimant also submitted that the vagueness of Dr Morse's report and the conclusion that it was not necessary for the opponent to receive psychiatric treatment, as distinct from counselling, made it impossible to conclude that Dr Morse had even diagnosed actionable psychiatric injury. To use the words of Clarke JA in CRA Ltd v Martignagno (1996) 39 NSWLR 13 at 20, it could not be said that though the opponent may have been aware that he had suffered "an injury, possibly with continuing consequences", he was "unaware of its complications, implications or potentially serious consequences" until he visited Dr Morse.
45 Counsel for the opponent first read the following passages from the reasons for judgment of Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 11-14:
"The 'extent of an injury must include all its consequences. It is not an unnatural reading of s 60I(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 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 [(1995) 56 FCR 389], 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 Ltd v Webber [unreported, 16 November 1989. This was a decision on the meaning of 'the nature and extent of the personal injury' in s 57(1)(b) of the Act], 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' [ F J Walker Ltd (unreported; 16 November 1989), at 5].
The better view of s 60I(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. As Clarke JA said in CRA Ltd v Martignago [(1996) 39 NSWLR 13 at 20]:
'The sub-section is concerned to inquire 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 was unaware until years later that there were serious complications flowing from that blow (eg osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.'
His Honour went on to say [ CRA Ltd (1996) 39 NSWLR 13 at 20-21]:
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 inquiry 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 inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry 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 inquiries 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.'
Expectation as to the likely consequences of an injury is clearly an element in determining an applicant's awareness of the extent of the injury. When the relevant injury is a disease, the expectation of the applicant at the expiration of the limitation period as to the likely course of the disease will usually be determinative of whether he or she was aware of 'the extent' of the disease for the purpose of s 60I(1)(a)(ii) of the Act. In Australian Iron & Steel Ltd v Connell [(1959) 102 CLR 522 at 528]. Dixon CJ said that a disease was 'a pathological condition importing pathological and physiological incidents and consequences and liable to follow a course or some or one of courses more or less known or expected'. But it is the applicant's expectation as to the course of the disease, not that of the reasonable person, that is relevant. Thus, if an applicant knew at the expiration of the relevant period that he or she suffered from a diseased spine, it does not necessarily follow that the person was aware of the 'extent of personal injury' if eventually the disease caused the vertebrae to collapse. Whether the applicant was aware of 'the extent' of the injury would depend on whether that person was aware that there was a real chance that the vertebrae would collapse as the result of the disease.
In Ditchburn v Seltsam Ltd [(1989) 17 NSWLR 697 at 704, per Kirby P, with whom Hope A-JA agreed. This was reaffirmed by the New South Wales Court of Appeal in F J Walker Ltd (unreported, 16 November 1989)] the New South Wales Court of Appeal held that early signs and symptoms may not constitute sufficient indication of the 'nature and extent' of personal injury. In F J Walker Ltd v Webber [unreported; NSW Court of Appeal; 16 November 1989, at 4] the same Court also stated that:
'One can know the nature and extent' of one's injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial, and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final state.' 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 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 s 60I(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 pathology or 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 cord nerves were caught in damaged discs' [ CRA Ltd (1996) 39 NSWLR 13 at 21, per Clarke JA]." 46 Counsel for the opponent submitted that Dr Morse's report revealed that the opponent had suffered from two psychiatric illnesses: post traumatic stress disorder beginning soon after the incidents in 1988 and lasting two years, and adjustment reaction with depressed moods more recently. Like the applicant in Commonwealth of Australia v Dinnison (1995) 56 FCR 389, the opponent was aware before the limitation period expired that he had an anxiety state, but only after it had expired did he become aware that he had, and had had, a psychiatric illness. Counsel appealed to the example given by Clarke JA and quoted by the High Court of an applicant who was aware that a blow to the arm had caused moderate pain, but was unaware until years later of a serious complication like osteomyelitis. So here, said counsel, the opponent knew that for two years he was waking at night screaming and suffering constant fear, but he was unaware of the serious complication, namely the post traumatic stress disorder. To be aware of symptoms involving painful emotional responses was not equivalent to being aware that those symptoms were symptoms of a psychiatric illness. 47 While there may be no difference between experiencing neck pain and being informed that the cause is a disc lesion, there was a difference between experiencing fear and anger on the one hand and being informed that one has or had a psychiatric illness. 48 The opponent also submitted that while the opponent was merely experiencing symptoms, he did not know how long they would last, or what the true condition of his emotions and his mind was. He knew that he felt guilty, but not why. Only the diagnosis of psychiatric illness revealed these matters to him. 49 Counsel for the opponent then submitted that, contrary to the claimant's submissions, Commonwealth of Australia v Nelson was distinguishable, and the case which was on all fours with the present case was Commonwealth of Australia v Dinnison (1995) 56 FCR 389. He referred to the following passages. 50 At 398-9 Gummow and Cooper JJ said: "The primary judge found that the respondent, as a member of the Royal Australian Air Force, then aged 19, had attended and witnessed three atomic explosions at Maralinga in September and October 1957. The respondent had left the RAAF in January 1961. The primary judge said that although it was clear from the evidence that the respondent held and apparently still held the view that he suffered injury as a result of exposure to radiation, the case relied upon for the application was not one of radiation damage but of psychiatric damage, specifically the causing of a chronic and disabling anxiety state." 51 They then said at 399: "His Honour [the primary judge, Foster J] referred to the evidence of the respondent that whilst he was in the RAAF he had begun to experience dreams which were apparently related to his witnessing the third blast. The dreams occurred on average about once a week and had commenced two or three years after the respondent left Maralinga. They had resulted in a disturbed sleeping pattern. The primary judge continued: I consider that this evidence and other evidence is capable of establishing that the applicant took from aspects of his service in Maralinga, culminating in his exposure to the shock of the third atomic blast, a deep seated fear that he had been affected by radiation and was a potential candidate for cancer. It is at least reasonably arguable that whilst he was still in the airforce, this condition of fear manifested itself in dreams and in disturbed sleep. After he left the airforce, this fear appears to have been fed by a number of events. Whilst working in the Snowy Mountains in 1961, he spoke to an ex-serviceman from Japan, who provided him with some frightening information as to the effect of the Hiroshima atomic bomb explosion upon those unfortunate Japanese people who had been exposed to it. The information he received was that people who were as close to the bomb on Hiroshima as I was at the bomb at Maralinga were all riddled with cancer or they had this bone problem, bone marrow problem and that and lots of other defects of their body that caused death'. He said of this information that really shook me up a fair bit'. His evidence appears to indicate that the receipt of information of this kind would revive or increase his sleeping problems until its effect would subside. It did not cause the problem, but temporarily added to it. The Snowy Mountains informant sort of put a bit more on top of it when I met him'."
52 Counsel for the opponent said that what happened to Mr Dinnison was "very very similar" to what happened to the opponent - "Where you have an initial condition then you have exacerbations when events occur which remind the sufferer of the particular problem".
53 In Commonwealth of Australia v Dinnison there was evidence that the respondent was aware he had physical problems, summarised thus in a letter of 23 January 1987 from the Department of Defence (at 400):
"I refer to your claim for compensation in respect of 'teeth became loose and had to be removed - very bad eyesight - passing of blood - poor hearing - anxiety - troubled uneasy and concerned from exposure to radiation."
54 Gummow and Cooper JJ then said (at 400-401):
"To his affidavit in support of the present application, the respondent annexed a copy of a report by Dr Anthony Dinnen, consultant psychiatrist, dated 4 May 1993, and continued (par 42):
'Until I was given the report of Dr Dinnen I was not aware of any medical evidence that would support my claim against the Commonwealth.'
In his report Dr Dinnen gave 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 that 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.'
The primary judge expressed as follows his conclusions:
'Obviously, the case sought to be presented may well be beset with difficulties. However, I think sufficient has been put forward to support a claim on behalf of the [respondent] that he was unreasonably exposed to nervous shock from the third atomic blast and that that exposure foreseeably set in train the development of an anxiety state ... I consider ... that if he is not otherwise statute barred, the applicant has shown the existence of a case capable of being brought.
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