Gregory v Commonwealth of Australia

Judgment (6 paragraphs)

[1]

The applicant recorded the part that he played in rescue operations as follows: As I was not required in the L.R.R. I went to the flight deck and trained a ten signal lamp on the after section until it sank.

[2]

76 In the circumstances that prevailed on board the Melbourne in the aftermath of the collision, it may be thought unlikely that any of the applicant's shipmates or superiors had occasion to take particular note of him or of his reaction to the disaster. I do not consider that the respondent faces significant prejudice by reason of the absence of witnesses able to comment on his conduct and appearance in the period immediately following the collision.

[3]

77 Central to Mr Barry's submissions was the difficulty that the respondent faces in dealing with causation. He pointed to the applicant's first affidavit with the account of his outbursts of anger and violent behaviour when he was stationed at HMAS Albatross. This was at a time after the applicant had seen active service during the Indonesian confrontation. His ship had been under fire on two occasions. He acknowledged that on the second of these occasions he believed himself to have been in danger. These events predate the disciplinary breaches and disturbed behaviour when he was stationed at Albatross. Mr Barry asked rhetorically how, after an interval of so many years, might the trier of fact untangle the various stressors that had operated on the applicant leading him to drink to excess and experience other of the symptoms that he reported?

78 Mr Barry pointed to evidence that the applicant gave: Q. Could it be that the experience in the Indonesian conflict either caused a change in personality or worsened whatever changes might have been present? A. I don't know. I don't know. I don't know. I don't know what - I don't know. I don't know whether that caused me to be worse or not, I don't know. (T 25.40-45). 79 In Mr Barry's submission, ultimately in a claim for personal injuries arising out of a psychiatric injury, the credit of the applicant is central. No challenge was advanced to this applicant's credit, but rather the point was made that now, after some forty years, he is unable to give an account of relevant history. In submissions, Mr Barry put it this way: As your Honour observed in relation to Mr Gregory he has obviously had a decent hardworking life. But if he doesn't know, and he can't provide any relevant history, how can there be any fair trial of issues such as causation and the relative effect of the Indonesian confrontation in 1966 when someone is trying to do an assessment thirty or forty years later of his mental state? (17/02/06 T18.4-10). 80 This submission, and the submissions arising out of the applicant's stable marriage and long and creditable employment history, seemed to me to be directed in some degree to the merits of his claim and not to the discretionary considerations under s 60G(2). The significance of the applicant's service history, including during the Indonesian confrontation, seems to me to be a matter that the respondent can address by expert evidence. Dr McCarthy arrived at his opinion on the strength of a history that included the applicant's service during the Indonesian confrontation (and that his ship had been under fire). The circumstance that the applicant acknowledges his inability to comment on whether he underwent a personality change following the Indonesian confrontation does not deprive the respondent of the ability to test the claim that he now brings. 81 I have concluded that to grant the applicant the extension that he seeks will not occasion significant prejudice to the respondent. For a trial to be fair it need not be perfect or ideal: Holt v Wynter (2000) 49 NSWLR 128 per Priestley JA at [142]; McClean v Sydney Water Corp [2001] NSWCA 122; Smith per Santow JA at [129].

23 In Commonwealth of Australia v Smith [2005] NSWCA 478 the Court of Appeal held that when an extension of the limitation period is sought in a case of mental injury the question is whether the victim was aware that he has suffered from a recognisable psychiatric illness (Handley JA para [7], Santow JA para [104], Basten JA para [181]). 24 The applicant said, and I accept, that he did not know that he suffered from a psychiatric illness until his consultation with Dr McCarthy in August 1995. I am satisfied that at the expiration of the limitation period the applicant did not know or was not aware of the matters set out in s 60I(1)(a)(i) - (iii). 25 I turn now to s 60I(b) and to a consideration of whether the applicant has established that the application is one made within three years after he ought to have become aware of all three matters set out in s 60I(1)(a)(i) - (iii). It was the respondent's submission that given the applicant's acknowledgement of his awareness of his symptoms he should have sought treatment at an earlier time, and had he done so, he would have become aware of the three matters set out in s 60I (a)(i) - (iii). 26 The applicant understood that he was a heavy drinker but he did not assess his drinking to be "out of control" and had not seen the occasion to seek treatment for it. He was aware that he had nightmares and that he tended to be aggressive and socially withdrawn but he saw these features as his lot in life. I am satisfied that he did not have insight into the need to seek psychiatric assistance for his condition and that although Mrs Gregory was aware that the collision appeared to have been a significant trauma in her husband's life it was not until 1995 that she came to consider that his level of distress was a serious matter that called for treatment. 27 I am satisfied that the application for an extension of the limitation period was made within three years after the applicant became aware or ought to have become aware of the three matters to which s 60I(1)(a)(i) - (iii) directs attention. 28 It remains to consider whether the applicant has established that it is just and reasonable to extend the limitation period for his cause of action. Prominent in the consideration of this issue is the delay between the filing of the application and the matter being brought on for hearing. The statement of claim was filed on 29 November 1995 and the present application was filed on 6 December 1995. There was a delay of five and a half years before any evidence was filed in support of the application. From the date of filing of the applicant's affidavit in April 2001 there was a further delay of some four and a half years before the matter was brought on for hearing. It is now forty-two years since the date of the collision. Approximately one quarter of the delay over this period is referable to the interval between the filing of the statement of claim and steps being taken to have the application to extend the limitation period determined.

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Judgment (6 paragraphs)

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