Exhibit 16 does not disclose the time at which Dr Hook recorded that history.
31 In Exhibit 14, the medical information form completed by Dr Hook for the pension application, the doctor recorded: "Worsening depression over recent years, also anxiety."
32 According to the plaintiff, Dr Hook was the first doctor he had discussed the "Melbourne"/"Voyager" collision with (T 71), and that that was in 1999. On the evidence before me on this application, I accept that to be so. In the time that Dr Hook had been the plaintiff's general practitioner, the plaintiff said he had been advised by Dr Hook to cut down his drinking but at no time prior to the plaintiff seeing Mr Taylor did Dr Hook tell the plaintiff he should see a psychiatrist or a psychologist (T 77). Considering the evidence before the Court on this application, I accept that to be the position.
33 Mr Barry submitted that there was an inconsistency between the content of Dr Holwill's report and the evidence that the plaintiff gave as to when it was that his drinking habits began. The plaintiff's evidence, both in his affidavit of 4 August 2003 and in his oral evidence, was that his drinking problems began soon after the collision in February 1964. On one reading of the history recorded by Dr Holwill, the plaintiff would seem to have told Dr Holwill that the problems began after the incident in the Straits of Malacca. Dr Holwill's handwritten notes (Exhibit 18) appear to record that the plaintiff was "OK while on Melbourne" but it was after the "Parramatta" collision that he started drinking to excess. The apparent inconsistency between what Dr Holwill has recorded and the plaintiff's evidence before this Court is a matter to be considered when assessing the truthfulness and the reliability of the plaintiff's evidence, but having observed the plaintiff in the witness box where he was subjected to thorough cross examination, I formed a favourable impression of him. He did not appear to me to be evasive and, as far as I can judge, he appeared to answer questions honestly.
34 Ms Robinson dealt in her affidavit with the issue of prejudice, and I shall deal with this question presently when addressing the submissions advanced by Mr Barry.
35 I return now to the threshold provisions of s 60I.
36 Section 60I(1)(a) is concerned with the plaintiff's actual awareness: see Harris v Commercial Minerals Limited (1996) 186 CLR 1 at pp 9-10; CRA Limited v Martignago (1995) 39 NSWLR 13 and in particular the judgment of Clarke JA at 20; and Commonwealth of Australia v Smith [2005] NSWCA 478 and in particular the judgment of Santow JA at [114]-[116].
37 In this case it is the plaintiff's evidence that before September 1999 he had not discussed the collision between the "Melbourne" and the "Voyager" with Dr Hook, and I accept that at that time Dr Hook informed the plaintiff only that he was suffering from depression and anxiety (see paras 28 and 30 of the plaintiff's affidavit of 4 August 2003). I also accept that until the plaintiff received the documents from the Department of Veterans' Affairs in January 2000, as referred to in para 31 of his affidavit, he was not aware that he had been suffering from PTSD for thirty years, as Dr Hook wrote in the "Work Ability Report" provided to the plaintiff by the Department.
38 The effect of the plaintiff's evidence on this application is that he did not know that he had sustained personal injury in 1964 and still less did he know the nature and extent of any such injury. I refer to para 12 of the plaintiff's affidavit of 11 September 2006:
"During the thirty five years or so between 1974 and 1999, when I saw the RSL advocate, David Piggott, I went to the doctor as often as was needed. I suffered from stomach ulcers and gastro oesophaegial reflux. I also had problems with my breathing and worsening bronchitis due to the smoking. I was treated by Dr Hook for many years for those ailments. I never mentioned anything about the Voyager/Melbourne collision. As stated above, it was only much later that I realised that my problems were related to the collision. He treated me from time to time as required. I knew that I had to stop drinking and smoking and eventually I did so. This was on the recommendation of Dr Hook. I never had any idea that I had psychiatric illness and that it was caused by the collision. Therefore I had no idea that I could be treated for that illness."
39 The plaintiff was not challenged in cross examination about the content of the above paragraph.
40 The plaintiff's evidence satisfies me that he did not have the requisite knowledge as to any of the matters arising under s 60I(1)(a). Indeed, I do not understand Mr Barry to have challenged the plaintiff's evidence relevant to s 60I(1)(a) (see as to this the transcript of submissions at T 94).
41 Finding as I do the plaintiff has satisfied the requirements of s 60I(1)(a), I turn to s 60I(1)(b), upon which Mr Barry focussed his submissions when addressing s 60I.
42 I am satisfied that the plaintiff made his application by filing the notice of motion within three years after he became aware of the matters addressed in s 60I(1)(a). That knowledge I find he acquired in the year 2000. However, s 60I(1)(b) is not merely concerned with actual knowledge; it is also concerned with constructive knowledge.
43 Mr Barry submitted that awareness by the plaintiff of the changes in him attracted constructive knowledge of the injury because he ought to have taken appropriate steps to have the source of his problems diagnosed. Had he done so, his mental condition would have been identified closer to the collision time but certainly outside the three year period mentioned in s 60I(1)(b).
44 In considering this application, the Court's attention was directed to recent decisions of the Court of Appeal in Commonwealth of Australia v Smith (supra) and Commonwealth of Australia v Shaw [2006] NSWCA 209. Mr Barry submitted the decision in Smith was erroneous and ought not to be followed. Rather, he submitted the decision in Shaw, being the later decision, is to be followed. Mr Melick's submissions about these two decisions were, of course, to the contrary of those advanced by Mr Barry.
45 The principal judgment in Smith was given by Santow JA, with whose judgment Handley JA agreed, substantially for the reasons given by Santow JA (see the judgment of Handley JA at [8]). Basten JA dissented. In Shaw, the principal judgment was given by Basten JA, and Handley JA and Ipp JA concurred with Basten JA.
46 Both Smith and Shaw were members of the crew of the "Melbourne" and each sought an extension of time to sue the Commonwealth for a mental disorder allegedly arising from the collision between the "Melbourne" and the "Voyager". In Smith, the application for an extension of time was granted at first instance, and the appeal by the Commonwealth was dismissed. In Shaw, an extension of time was granted at first instance but the appeal was upheld. There was reference in the latter case to Smith but there was no criticism of the earlier judgment when Shaw was decided. It does not follow from the difference in outcome of the two appeals that the decisions are irreconcilable when, plainly, each case fell to be determined having regard to its own particular facts. So, too, does the case with which I am presently concerned, although I must, of course, have regard to the statements of principle to be drawn from Smith and from Shaw.
47 In Smith, Santow JA said (at [102]-[109]:
"102 Thus s60I(1)(b) imports for the first time a notion of constructive awareness or knowledge. Clarke JA in Martignago (at 19C and 22F) explains that the fact that the plaintiff had the means of knowledge at his disposal would be a highly relevant matter for consideration, in deciding whether the application succeeded or failed under s60I(1)(b). However, this presupposes that the plaintiff had the capacity to have recourse to that means of knowledge, unimpaired by an adverse mental condition and otherwise not constrained. Here Mr Smith was instructed not to talk about the matter by his superiors, so was under that constraint. If Mr Smith, as the primary judge concluded, for a long period lacked sufficient insight even to utilise that ' means of knowledge ' (consulting a psychiatrist) in order to ascertain his true condition, then that means of knowledge was not in reality ' at his disposal '. It was open to the primary judge to conclude on the evidence that Mr Smith did lack the capacity for insight to appreciate that he had a mental impairment; the case for not appreciating its extent is even stronger.
103 The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person 'ought' to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances. Foster AJA, with whom Mason P and Einstein J agreed, said:
'In my opinion, in the same way that subs60I(b) has been called in aid of the construction of s60I(1)(a), the earlier sub-section can assist in the construction of the latter. It is clear that s60F, s60G and s60I are aimed, in general, at alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. It is the actual position of the plaintiff having regard to his personal state of knowledge which is the subject of the first sub-section of s60I(1). Although the second sub-section cannot, in my view, relate to imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. However, in my view, that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. I consider, with respect, that this is what Priestley JA was referring to in the passage cited above from [ Spadotto & Co Pty Ltd (in liq) v Raber , NSWCA, (unreported 27 October 1995)] where his Honour referred to "knowledge of which the plaintiff (as a person) ought to have become aware." In this regard, I consider that the remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC 518 at 530, cited by Dawson J in [ Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234] are particularly apt, his Lordship saying:
"In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience."
In the result, I am of the view that the words "or ought to have become aware" in subs60I(1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed. The question for the learned primary judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the documents.'
104 The tort of negligence recognises that in claims for nervous shock '[t]here are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable for strangers to have in contemplation the possibility of harm to them' (per Gleeson CJ in Tame v New South Wales (2002) 211 CLR 317 at 333). But we are here dealing with a limitation statute, not recovery for nervous shock. The section focuses in a case such as this on the capacity of someone suffering mental injury to become aware that his symptoms, even distressing ones, represent a psychiatric condition; that is to say, using the language of the statutory definition of 'personal injury', to become aware that they represent 'impairment of [his] … mental condition'.
105 Mr Smith's difficulties in accepting advice to seek psychiatric help were explained by Dr Glaser who found that Mr Smith exhibited ' a marked reluctance to discuss his feelings and behaviours ' [Vol 1, page 304] and that he
'has been reluctant to acknowledge the existence of his various psychological symptoms and, as he himself states, he prefers to try and suppress them and ignore them. This is part of an overall pattern of avoidance behaviour that appears to have characterized his psychological functioning since the 1964 collision. As a result, he would have great difficulty in understanding the emotional consequences of the collision and relating them to the collision itself… Thus it is most unlikely that he would have achieved an adequate understanding of his difficulties for him to be able to take legal action, until quite recently.' [Vol 1, page 305]
106 The Commonwealth relied on Commonwealth v Nelson [2001] NSWCA 443. Mr Nelson received psychological counselling and consulted a psychiatrist a few years after a submarine malfunction. He continued to have counselling for about 10 years. The Court of Appeal found that even if Mr Nelson was not subjectively aware of his injury before the expiration of the limitation period under s60I(1)(a) (although the court found that he was), nonetheless he ought to have been aware of the extent of his injuries under s60I(1)(b). This was ' by taking the simple step of enquiring of those treating him what his problems were ' (Nelson at [89]; see also at [80]).
107 The Commonwealth submitted that Mr Smith had the opportunity to become aware of his injury and ' ought to have become aware ' that he had suffered an injury. The Commonwealth submitted that his failure to seek the assistance of a psychiatrist was not, in the words of Deane J in Do Carmo v Ford Excavations (1984) 154 CLR 234, ' without fault on his part '.
108 However, in that passage Deane J was referring to the legislative policy underlying the then s57 and s58 of the Limitation Act . Section 57 (now s57B) referred in subs (1)(c), to the knowledge of ' a reasonable man, knowing those facts and having taken the appropriate advice on those facts '. It did so in relation to what are termed ' material facts of a decisive character relating to the cause of action '. Deane J's statement can have no bearing upon s60I which does not refer to objective reasonableness nor to the taking of appropriate advice.
109 The basal question in relation to Mr Smith was therefore what someone so circumstanced as he was, ought to have been aware of in relation to each of the three matters in s60I(1)(a). This must take into account his mental impairment, the instructions he received from his superiors and any other circumstances bearing upon his capacity to appreciate that he needed to consult a psychiatrist to find out if he was suffering from ' any impairment of [his] mental condition ' and if so, its nature and extent."
48 In Shaw, Basten JA said, as to s 60I(1)(b) (at [31]and [32]):
"31 It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed in relation to this issue) adopted a concept of 'constructive knowledge', as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530:
'In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out.'