Duncan v Commonwealth of Australia

The applicant went on to say that he had not mentioned the phenomenon of the nightmares to any medical practitioner, nor had he discussed them with his mates. 43 No naval medical officer appears to have made the link between the applicant's medical condition and the circumstance that he had been a member of the Melbourne's company at the time of the collision. It is plain that by 1966, when the applicant saw Lieutenant Haskett, he wanted to get out of the Navy and considered that obtaining medical support may assist him. It seems to me that had he associated his intermittent nightmares and other symptoms with his experience of the collision, one might have expected him to refer to the matter in the course of his endeavours to obtain a discharge. 44 The completion of the applicant's medical statement on discharge is to my mind supportive of acceptance of his recall that he did not consider himself to be suffering from any mental condition that was connected to his experience of the collision. The pro forma medical statement on discharge signed by the applicant included the following questions and answers: · Do you suffer from any disabilities at present? If so, record details. No · Have you suffered from any disabilities during Service? If so, list them together with approximate of occurrence and where serving at the time. No · Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service? If so, record your reasons. No · Have you made any claim under the repatriation or CEC Acts and have you been granted any pension or compensation? If so, record details. No 45 I considered the applicant to be a truthful witness. I accepted him when he said that he had not made the association between his various symptoms and his experience of the collision. 46 In the event that the applicant satisfied the Court that he was unaware of one or more of the matters in subsection (1)(a)(i) - (iii), Mr Burbidge submitted that his application must nonetheless fail because it was not made within three years after he ought to have become aware of all three matters listed in paragraph (a)(i) - (iii). In support of this submission Mr Burbidge pointed to the circumstance that in mid-1970 the applicant was a married man aged twenty-three years with family responsibilities. After his discharge he had continued to suffer symptoms of anxiety, stress and periodic nightmares, which had an adverse affect on his family life and employment. He understood that he had been diagnosed as suffering from paranoid schizophrenia and/or manic depression. In these circumstances, Mr Burbidge submitted that the applicant ought have sought out appropriate psychiatric treatment and, had he done so, he would have become aware of the link between his mental condition and his experience of the collision. 47 In considering whether the applicant ought to have become aware of the matters in s 60I(1)(a)(i) - (iii) I have regard to the further report of Professor McFarlane dated 21 June 2002. Professor McFarlane comments on the result of a study of fire fighters that he conducted following the 1983 Ash Wednesday bushfires. He noted that in this population a striking observation was how many individuals had little conceptual understanding of the nature of their suffering. This was so, despite the fact that they had nightmares and were intensely preoccupied by their experience in the fire. Rather, Professor McFarlane observes, they saw the latter as being part of normal distress and a normal consequence of having been exposed to such an experience. Professor McFarlane observes that only a minority of people who meet diagnostic criteria for mental disorders seek appropriate help. In addressing the applicant's case he says: Although Mr Duncan began developing symptoms in the aftermaths of the HMAS Melbourne/Voyager collision, what occurred was a pattern of repeated insubordination. The message that he would have been conveyed was that he was disobedient and that he had major problems with his attitude. Whilst this is not explicitly stated, it is easy to imagine he would have believed this was attributed to his temperament or personality. Avoidance is a central part of post-traumatic stress disorder. Therefore, it is highly probable this element of the disorder, both prevented his description of his fears and internal preoccupations to himself as well as to his medical attendants.

Professor McFarlane considered a letter by the applicant's general practitioner, Dr Talib, dated 25 May 1999 to be particularly relevant. 48 Dr Talib commented that he had known the applicant for a very long time. It appears that he commenced seeing him around the mid-1970's, after the applicant moved to Warilla and commenced employment with BHP. Dr Talib reports: I started to get to know him when he came down to the south coast and worked at the steel works. He never said much at first. He was always suspicious. However, with the passing of time, I got to know this man who was really very gentle and considerate. I could not, however, fathom his psychological problems. He had a lot of sleeping problems. He complained of palpitations. His blood pressure would swing from consultation to consultation. He had severe abdominal pains. Sometimes he would be morbidly depressed and at other times he would be extremely anxious. Unfortunately I did not know about his experience of 10 February 1964 and he did not tell me about such things until quite recently. Things are starting to make sense. 49 The applicant acknowledged that he was aware he was a person who "had problems". Plainly so much was evident over many years to his general practitioner. Nonetheless, Dr Talib does not appear to have referred the applicant for any psychiatric treatment. 50 In assessing whether the applicant "ought to have become aware" of his injury and ought to have made the connection between that injury and his experience of the collision, it is necessary to have regard to the qualities of the applicant and not those of the hypothetical reasonable man: Commonwealth of Australia v Smith per Santow JA (with whom Handley JA agreed) at [103] citing Telstra Corporation v Reay [2002] NSWCA 49. 51 At the time of the collision the applicant was a very junior naval rating who was instructed not to talk about the collision and who was given to understand that he should put the matter behind him. Taking into account Professor McFarlane's report of June 2002, that avoidance is a central part of post-traumatic stress disorder and that it is highly probable that this element of the disorder both prevented description of his internal preoccupations to himself and to his doctors and having regard to the contents of Dr Talib's letter, I am not of the view that the applicant ought to have been aware of the three matters in s 60I(1)(a)(i) - (iii). 52 It remains for the applicant to satisfy the Court that it is just and reasonable that the limitation period for his cause of action be extended. The application should be refused if to grant it would result in significant prejudice to the respondent: Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128. 53 Mr Burbidge informed the Court that the respondent did not identify particular prejudice in this case beyond that which might be thought to arise in a case involving events that occurred so many years ago. In this respect I note the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 at 551. 54 The applicant has furnished details of his employment history in the period following his discharge from the Navy. In an affidavit sworn on 16 May 2006 he has provided details of his earnings from the date of discharge until he ceased employment in July 1996. He has produced copies of a number of financial records. 55 I consider that the applicant's claim for economic loss is one that can be adequately assessed and tested. 56 Proof of any psychiatric injury and its cause will depend on expert evidence, which is significantly dependent on the history. There is material available to the respondent as to the applicant's service in the years following the collision. He has obtained from the respondent naval records, including his medical records and the records relating to his dscharge. His Certificate of Service and the questionnaire he completed for submission to the Royal Commission into the loss of HMAS Voyager are available.

57 David Forster, the applicant's solicitor, in an affidavit sworn on 20 February 2003 states that Dr Cotsell is available to give evidence concerning the contents of his clinical notes. 58 The applicant's parents, Barbara and Patrick Duncan, swore affidavits describing the applicant's character and behaviour prior to and after the collision. The applicant's father is now deceased, but his mother is available to give evidence. Given the applicant's age at the date of the collision, it may be that little turns on evidence of his pre-collision character and conduct.

59 Witnesses are available who can comment on the applicant's behaviour during the period of his naval service. In his affidavit of 20 February 2003 Mr Forster says that he has spoken with Warwick Burns, a member of the crew of the Melbourne at the time of the collision, and who is able to give evidence concerning the applicant's character and conduct prior to and following the collision. The particulars of two other crew members of the Melbourne who knew the applicant are also supplied in the affidavit. Mr Forster supplies details of two of the applicant's naval supervisors. He says that Commander Bate, the officer of the watch, is available to give evidence concerning the collision, the role of the applicant and the applicant's promotional prospects in the Navy.

60 The names of a number of persons who are able to comment on the applicant in the period following his discharge from the Navy, at least from 1980 until he ceased employment, have been provided to the respondent. These include a number of persons who supervised the applicant during his employment with BHP.

61 It will not be in issue at the trial that the collision arose as the result of negligent acts or omissions for which the respondent is liable or that the applicant was on board the Melbourne at the time of it. The respondent has not lost evidence which is likely to significantly bear upon the determination of the issues that will be live at the trial, namely whether the applicant has suffered injury and, if so, causation and damages. I consider that a fair trial of the applicant's claim may still be held and that in these circumstances it is just and reasonable to grant the extension of time that is sought.

1.Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the applicant's statement of claim was filed.

2. The proceedings may be re-listed by arrangement with my Associate for submissions on costs.

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