Dinnison v Commonwealth of Australia

REASONS FOR JUDGMENT 1 This is a motion for jury trial. The applicant seeks an order that this proceeding be "heard with a jury". In the proceeding the applicant claims against the respondent ("the Commonwealth") damages in respect of personal injuries. 2 Sections 39 and 40 of the Federal Court of Australia Act 1976 provide as follows: "39. In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury. 40. The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires." 3 These provisions are in substantially the same form as ss 12 and 13 of the High Court Procedure Act 1903, which were considered by Fullagar J in McDermott v Collien (1953) 87 CLR 154. His Honour described the "general policy" laid down by such provisions this way (at 157): "Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode." 4 The same view has been taken of similar provisions governing proceedings in the Supreme Court of the Northern Territory - Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 1; 84 FLR 49, and in the Supreme Court of the Australian Capital Territory - Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356. 5 Similar provisions were also considered in the Supreme Court of Norfolk Island in Snell v Sanders (1994) 122 ALR 520. In that case Wilcox J referred to, but did not embrace, the test proposed by Fullagar J. Instead, his Honour said (at 520): "The solicitor for the third party puts the test in a slightly different way. He submits that s 22 requires an applicant to 'bear the onus of satisfactorily establishing that the judicial discretion should be exercised'. I think this puts the matter well. It cannot properly be said that there is an entitlement to jury trial, either absolutely or if some particular matter is proved. The issue is totally at large, a matter for the judge who hears the application. … I think there is a burden on an applicant for an order for trial by jury. But the burden should not be treated as an onerous one; it is merely to demonstrate that, having regard to the whole of the circumstances, the ends of justice will be better served by trial with a jury than by judge alone." 6 It does not appear whether Wilcox J was referred to the decision of the Court of Appeal of the Northern Territory in Bradshaw. In any event, as a single judge, I should not depart from the interpretation placed upon a substantially identical legislative provision by an intermediate appellate court unless convinced that the interpretation is plainly wrong. I may say, however, that I respectfully agree generally with the interpretation in Bradshaw and, in particular, with the opinions of O'Leary CJ and Asche J. Fullagar J's view has also been recently applied in this Court by Sackville J: Australian Securities & Investments Commission v Matthews [1999] FCA 706. 7 Two affidavits were read in support of the motion. The first was that of Mr John Howard, the solicitor with the carriage of this proceeding on behalf of the applicant. His evidence established that there would be no practical problems concerning the provision of suitable accommodation for a jury in the Court's premises in Sydney. See Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR ¶40-887. 8 The other affidavit was that of the applicant. It is quite short. The relevant parts state: "3. I hold the view that as a member of the Armed Forces I was ordered to undertake hazardous duties and I wish to have ordinary members of the public determine whether such duties undertaken on their behalf and on behalf of all Australian citizens should result in compensation for my injuries. 4. I wish to point out to this Honourable Court: (a) That the case that I want to put before the court is one in which I, as a former member of the Armed Forces, seek damages against the Government of Australia; (b) The number of my acquaintances and friends is diminishing and it is difficult to find witnesses to corroborate the allegations of fact which I propose to make; (c) My case is particularly dependant [sic] upon whether I as a witness of fact am believed: the case is one which is appropriate to be dealt with by a fact finding jury. 5. I understand that possible reasons for the granting of a jury in this case include: (a) That is a matter of special public interest arising out of Defence of the Realm; (b) The special nature of the case which includes establishing psychiatric damage arising out of my work and presence at the Maralinga Range during the ANTLER Series of Tests; (c) The case which I would wish to put is relatively short and the introduction of a jury will not prolong the trial; (d) I was a member of the Armed Forces at the time it was alleged that the injury or part of injury was sustained, and thus my case involves a soldier against the government; (e) There are no legal matters of a substantial nature to be determined and jurors would not be delayed because of the presentation of the case; (f) There are no large number of documents to be considered and the case presented by the Plaintiff will be in a short compass." 9 The statement of claim alleges causes of action in (a) negligence, (b) exposure to nuclear radiation, (c) breach of duty as occupier, and (d) trespass to the person. They relate to the applicant's period of service in 1957 as a member of the Royal Australian Air Force contingent at the atomic detonation testing site at Maralinga. Twenty-eight separate particulars of negligence are given in the statement of claim. The statement of claim alleges (paragraph 6) that the applicant "was exposed to nuclear radiation", and (paragraph 7) that he suffered injuries, particularised as (a) bleeding from the bowel, (b) premature loss of teeth, and (c) anxiety. 10 In opposition to the motion, the Commonwealth read an affidavit by Mr Con Ktenas, the solicitor with the carriage of the case on its behalf. He referred to the fact that the action had been commenced in the High Court of Australia and to earlier proceedings under the Limitation Act 1969 (NSW). Mr Ktenas also annexed to his affidavit copies of particulars given by the applicant since the extension of the limitation period for his causes of action. 11 The trespass count appears to have now been abandoned. The particulars requested and given in respect of the allegations in paragraphs 6 and 7 of the statement of claim were as follows: "In Relation to Paragraph 6 of the Statement of Claim 25. Identify, with precision, the exact location(s) where it is alleged that the plaintiff was exposed to radiation. The locations where the plaintiff was exposed to radiation were all of the Maralinga Range area as set out in answer to previous questions including the Maralinga Forward Test Areas which encompassed the EMU, KITTENS, TIMS, and RATS areas. 26. Identify, with precision, the manner in which the plaintiff was allegedly exposed to radiation. The plaintiff was exposed to radiation in the course of carrying out duties described in answer to the previous questions and he was placed in a position of being exposed to radiation. In relation to Paragraph 7 of the Statement of Claim 27. State the nature and extent of all injuries and disabilities allegedly resulting from the defendant's negligence. The plaintiff says that he suffered from anxiety and Post Traumatic Stress arising from his employment with the defendant. The plaintiff makes no claim for physical injuries except those consequent on and sequelae of post traumatic stress. 28. In respect to injuries generally, when is it alleged that the plaintiff contracted and/or developed:- (a) Bleeding from bowel, (b) Premature loss of teeth, and (c) Anxiety. As a consequence of the psychiatric injury the plaintiff believes that certain symptoms and signs and physical conditions were caused by, and were the result of his fear, of having been seriously injured as a result of his exposure to radiation. Accordingly, the plaintiff is convinced that the bleeding from the bowel, bladder disorder, loss of eyesight and premature loss of teeth arise from the exposure to radiation and/or toxic heavy metals such uranium, beryllium and strontium. 29. Identify all treating doctors, hospitals and other personnel who have treated the plaintiff from 1956 to date. The plaintiff in [sic] the course of obtaining the information with respect to treating doctors. The plaintiff has not been hospitalised and these will be provided at an early date. The plaintiff's treating psychiatrist is Dr Dinnen who gave evidence and was cross examined on the application for an extension of time. The up to date reports of Dr Dinnen will be provided as they come to hand. 30. Identify the dates upon which the plaintiff received such treatment. The plaintiff will rely upon the medical reports as served. 31. When did the plaintiff first become aware that any exposure to ionising radiation at Maralinga was as a result of unreasonable conduct on behalf of the defendant, its servants or agents? The plaintiff became aware that his exposure to radiation at Maralinga was the result of unreasonable conduct on behalf of the defendant, its servants and agents and agents [sic] subsequent to 20 November 1985 when the findings of the Royal Commission into nuclear tests in Australia were first made public. 32. Please provide full details of any continuing disability claimed to have resulted from the injuries sustained as a result of the defendant's alleged negligence, including its anticipated duration. Would you kindly forward copies of all medical reports as to the plaintiff's condition which are in your possession. The plaintiff's disability resulting from the injuries sustained is a chronic anxiety state as a result of the experiences at Maralinga during atomic testing in 1957. The anticipated duration is permanent. The plaintiff will in due course be serving all the medical reports that the plaintiff proposes to rely upon. The plaintiff assumes that that courtesy will be reciprocated and that you will be serving the medical reports and other documents that you propose to rely on as well. Further particulars supplied in respect of the acts and omissions relied on by the applicant allege that he was permitted to come into contact with radiation. 12 In the present case the order extending the limitation period was made in respect of a personal injury identified as a psychiatric illness. In the Full Court decision affirming that order, Commonwealth v Dinnison (1995) 56 FCR 389, Gummow and Cooper JJ said (at 399): "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. 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' as expounded in the High Court in Jaensch v Coffey (1984) 155 CLR 549." 13 Their Honours later said (at 402-403): "It is important to appreciate, as did the primary judge, that the personal injury, the suffering of which Mr Dinnison alleged he did not know, or was unaware as to its nature or extent, was a psychiatric illness. In the opening passages of his judgment, the primary judge set out a passage from the judgment of Brennan J in Jaensch v Coffey at 567. There his Honour made the point that a psychiatric illness induced by mere knowledge of a distressing fact or phenomenon which affronts or insults the mind of the plaintiff is not compensable; rather what is essential is perception by the plaintiff of that distressing phenomenon. One then, in the immediate context of the present case, supplied by the 1990 Act, has to ask whether Mr Dinnison did not know that personal injury of this nature had been suffered or was unaware of the nature or extent of that personal injury. The respondent's oral evidence and the documentary material to which we have referred certainly is capable of supporting the proposition that from aspects of his service at Maralinga, culminating in exposure to the shock of the third atomic blast, the respondent derived a deep seated fear that he had been affected by radiation, which condition of fear manifested itself in dreams and in disturbed sleep. This state of affairs might be accurately described, as it was, in his claim for compensation as 'anxiety - troubled, uneasy and concerned about exposure to radiation'. But, in our view, the primary judge, in a passage set out earlier in these reasons, correctly emphasised the importance of awareness by the respondent that his anxiety amounted to psychiatric illness. 14 In the light of the particulars given by the applicant, Mr Ktenas wrote to the applicant's solicitors indicating that it was "inevitable" the Commonwealth would have to prove that the applicant was not exposed to "ionising radiation". The applicant's solicitors disagreed with the suggestion and served a further report from Dr Anthony Dinnen, a consultant psychiatrist. That report concluded: "Opinion: The patient's account has not changed and my opinion of him is similarly unchanged from that which was the case some six years ago. I do believe that he suffers from a chronic anxiety state as a result of his experiences at Maralinga during the Atomic Bomb Testing of 1957. His perception that his general health has been adversely effected [sic] by his exposure to the radiation at Maralinga is a psychological condition which is very poorly understood, in Australia, but is well recognised in America. This is a form of contamination anxiety, a well documented variation of chronic post traumatic stress disorder. Bibliography and references: As you would be aware, I have taken a long interest in these matters, and indeed presented a paper to a joint National Conference in Sydney in May 1997 on 'Australia's Atomic War Veterans'. I submitted a paper for publication to the Journal of Traumatic Stress, which unfortunately was not accepted, but in the process of doing that I had some most interesting correspondence with the Editor of the Journal, Dr Bonnie Green who brought to my attention the literature on people exposed to radioactive contamination. In addition to this area of course I believe there is a further aspect to Mr Dinnison's experience which is yet to be fully understood and that is the unique quality of witnessing an ausome [sic] event." 15 The Commonwealth relies on the order made by the High Court remitting this matter to this Court in order to submit that the applicant is seeking to re-litigate an issue which has already been determined against him. It is true that this action was commenced in the High Court where trial without a jury is the normal mode of trial. Furthermore, it may be accepted that the remitter was made to this Court, rather than the Supreme Court of New South Wales, on the basis that the law to be applied would be the same as that applicable in the High Court: State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579. In my view, these circumstances in no way disentitle the applicant from making the present application. 16 The applicant submitted that the Court has an unfettered discretion to order a trial with a jury. No doubt, the exercise of any discretion must be based upon the facts of the particular case. However, as I have explained, I accept that some special reason must be shown for departure from the normal mode of trial. Many of the specific factors identified in the applicant's affidavit have an emotional and patriotic ring to them. However, in essence, his claim for damages for personal injury depends on the relationship of employer and employee. Such litigation is commonplace. The applicant refers to his concern that "I as a witness of fact am believed", but there is nothing unusual about a situation where there is a direct conflict of evidence on matters of fact and where witnesses frequently feel that their honour and integrity are at stake. 17 The applicant's lawyers insist that their client's case is not one of radiation damage but of psychiatric damage. The Commonwealth does not accept that simple proposition. That is why I have set out in some detail the particulars given by the applicant. The further particulars supplied by the applicant also show that the applicant alleges that he was exposed to "risk of serious inhalation, irradiation, ingestion or penetrating radiation hazard". The report from Dr Dinnen does not clarify what are the applicant's "experiences at Maralinga" that underpin his opinion. Dr Dinnen refers to "people exposed to radiation". I accept the Commonwealth's submission that it will necessarily have to deal with the issue of the applicant's exposure to contamination. Even if, at trial, the applicant's perception of risk is conceded to be entirely irrational, the foreseeability of his reaction will require evidence to be adduced on the topic of exposure to radiation. 18 The Commonwealth then submits that such evidence is likely to involve a scientific investigation which cannot conveniently be made with a jury: Peck v Email Ltd (1987) 8 NSWLR 430. Such a conclusion was required in that case to enliven the statutory discretion to dispense with a jury. However, notwithstanding the detail of the evidence that the Commonwealth may wish to adduce in the present case, I agree with what Clarke J said in Peck (at 434): "It is true to say that juries in this State are asked, almost on a daily basis, to decide relatively complex medical questions. They appear to do so without undue difficulty and it would not be correct to say, in my opinion, that because a scientific question involves competing expert opinions it is not convenient for decision by a jury." The likelihood that the applicant's exposure to ionising radiation will be an issue at trial does not, in my view, mean that a jury may not be ordered. 19 The Maralinga tests constituted an unusual industrial situation, but there is nothing unusual about employers' liability cases. The matters identified by the applicant, taken individually or in combination, are, in my opinion, not "special" so that the ends of justice render it expedient to depart from the normal mode of trial. All the applicant is saying, in effect, is that he would like to have a jury. That is not enough. 20 The applicant's motion for a jury trial will be refused. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.