Section 60I "Gateway Provisions"
20 It was the plaintiff's case that before the collision with HMAS Voyager, he enjoyed his Naval service and in particular visiting foreign ports. He was able to sleep without difficulty and was able to mix and socialise well with his fellow sailors. He only drank and smoked moderately. He was ambitious and wished to advance in the Naval service.
21 During the 10-12 hours he was at his emergency station on his own, it was the plaintiff's evidence that he became extremely anxious. He thought about his friends in HMAS Voyager (one of whom died in the collision) and he thought about his own dangerous position well below the water line in the lower levels of the aircraft carrier near to large quantities of fuel. These fears and anxieties were exacerbated by the fact that he had no communication with anyone during that period and was not aware of exactly what had happened. In particular he says that he was not aware of what damage had been suffered by his own ship.
22 The plaintiff said that he had little memory of events while HMAS Melbourne sailed back to Sydney. He became self-conscious of the fact that he had been on HMAS Melbourne when it had caused such a high loss of life to those on board HMAS Voyager.
23 After the collision the plaintiff said that he lost his love of the sea and of Navy life. He became anxious whenever he was at sea and could never relax properly. He stopped looking for promotion opportunities. He did not apply for any more courses or exams after the collision. The fact that he was promoted after the collision was as a result of examinations he had passed before the collision. He focused on serving out the rest of his enlistment period so that he could be discharged at the earliest opportunity. He took his discharge from the Navy on 21 March 1967.
24 After the collision the plaintiff no longer wanted to go ashore with other sailors and tended to avoid their company in social situations. When overseas with the Navy, he tended to stay on the ship. Not long after the collision he developed problems with sleeping. He started having nightmares, at least a couple of times a week, of being closed up in the pump room and would wake up feeling distressed, uncomfortable and in a cold sweat. Those nightmares had continued up to the present time, although they were less intense and less frightening than in the period immediately after the collision.
25 It was the plaintiff's opinion that he had significantly increased his intake of alcohol to help get to sleep, to give himself some comfort and to help shut out the disturbing memories and thoughts associated with the night on which the collision occurred. The plaintiff said that his beer consumption steadily increased when he was on shore to eighteen cans or stubbies of full strength beer per day.
26 The plaintiff noticed that whereas before the collision he had tended to smoke approximately one packet of cigarettes every few days, afterwards his smoking increased until he was smoking around sixty cigarettes per day. His level of smoking has fluctuated since then but on occasions he still smokes very heavily.
27 After the accident not only did the plaintiff avoid mixing with other sailors and other people generally, but he became distressed when in confined spaces, especially lifts or on an aircraft. Ever since the accident he has tried to avoid crowded places such as football or cricket matches and even shops, supermarkets, public transport and shopping centres when they are crowded.
28 After leaving the Navy the plaintiff continued to drink heavily, particularly on days when he was not working. Although he had mechanical engineering qualifications because of his Naval service, he did not look for employment in that field but took a job operating a coin counting machine for the Reserve Bank of Queensland. There was no need to mix very much with other workers when performing this job. He remained in that employment as a coin counter between 1967 and when he was retrenched in 1989.
29 For the first few years after being retrenched the plaintiff lived on his redundancy pay out package. In 1994 he obtained employment with the Filmers Palace Hotel as a permanent part-time drive-in attendant working between 24 and 30 hours per week. He remained in that employment until August 2001. He has not worked since that date and has been in receipt of a service pension. He said that he was able to tolerate the employment at the bottle shop because on most occasions it was fairly quiet and people did not want to stay and talk.
30 Since leaving the Navy the plaintiff only sought medical attention for minor ailments such as colds and flu, headaches and indigestion and a recurring right knee problem which he had developed while playing rugby in the Navy. The plaintiff had also attended the nurse at the Reserve Bank sickbay from time to time. At no time did he ever discuss his emotions or other symptoms with those doctors.
31 In about August 2000 the plaintiff made inquiries about a service pension from the Department of Veterans' Affairs (DVA) due to a hearing problem which he had. He discussed some of his problems with a Mr Bob Long who was a pension liaison officer. It was this person who suggested that he had more than a hearing problem and that he ought consult a solicitor. It was as a result of that conversation that the plaintiff contacted his present solicitors, Messrs Hollows in late 2000.
32 Those solicitors referred the plaintiff to Mr Wayne Binfield, a consultant psychologist, whom the plaintiff saw for the first time on 9 December 2000. In a report to the solicitors dated 13 March 2001 Mr Binfield diagnosed the plaintiff as suffering from a moderate to severe chronic post-traumatic stress disorder.
33 At the request of his solicitors, the plaintiff saw Dr Glaser, a psychiatrist, on 24 July 2001. In a report dated 1 August 2001 Dr Glaser diagnosed the plaintiff as follows:
"From the psychiatric point of view, he is currently suffering from a post-traumatic stress disorder associated with alcohol abuse. His problems are of mild to moderate severity and include fears of (and some avoidance of) situations associated with the collision (sea travel, "rowdy" people, talking about the incident itself etc), a generally raised level of anxiety, sleep disturbance (particularly if he doesn't drink), disturbing dreams, "flashbacks" related to the incident itself, mild moodiness, mild social avoidance and consumption of alcohol at well above "safe" levels."
34 It was the plaintiff's evidence that he was not aware that he had suffered any psychiatric disorder as a result of the collision until he saw Mr Binfield and Dr Glaser. He said that he realised he had experienced some problems over the years but he did not associate those problems with a psychiatric illness, nor did he associate those problems with the collision.
35 In early 2003 at the suggestion of Mr Kevin Dean from the Sandgate RSL Sub-branch the plaintiff lodged a claim with the DVA in relation to his shortness of breath, anxiety and depression. The plaintiff completed an application form in respect of that claim and was in due course seen by a Dr Jonathan Hargreaves, psychiatrist, on behalf of the DVA. Dr Hargreaves provided a report to the DVA dated 4 August 2003. Dr Hargreaves took a full and comprehensive history of the plaintiff's service with the Navy and also a full and comprehensive list of his complaints and symptoms. Dr Hargreaves diagnosed a chronic post-traumatic stress disorder secondary to a Naval disaster and alcohol dependence. Dr Hargreaves attributed those problems to the effects on the plaintiff of the collision between HMAS Melbourne and HMAS Voyager.
36 The cross-examination of the plaintiff by the defendant was restricted to two matters. Insofar as the gateway provisions under s60I were concerned, the defendant implicitly conceded that the plaintiff had established that he did not know that personal injury had been suffered and was unaware of the nature and extent of the personal injury which was suffered and was unaware of the connection between the personal injury and the defendant's act or omission. The plaintiff's evidence on those matters was unchallenged.
37 Nevertheless, I still have to be satisfied that the plaintiff's evidence is sufficient to satisfy the section 60I(1) requirements. The plaintiff's evidence on this issue is at para 39 of his affidavit where he deposed:
"39. I had no notion and I was not aware that I had suffered a psychiatric disorder as a result of my experiences in the collision until I saw Mr Binfield and Dr Glaser. I realised there had been changes in me, but I had little insight into the impact of those changes and I did not have any idea what was causing them. …"
38 It seems to me that the plaintiff must have been aware that he had a sleep disturbance, was suffering nightmares and was abusing alcohol. It is unlikely that he knew that his introverted lifestyle and social isolation was a disability as such. It seems to me, therefore, that while the plaintiff might have known that he had suffered some form of personal injury he was not aware of all of the "injuries" which he had suffered.
39 Insofar as being aware of the nature or extent of the personal injuries suffered, in the absence of cross-examination on that issue and because I accept the plaintiff as being essentially a witness of truth, I accept that he was unaware of those matters. Similarly, I accept that the plaintiff was unaware of the connection between his personal injury and the defendant's acts or omissions.
40 In those circumstances I find that as of 11 February 1970 when the limitation period expired, he did not know that he had suffered personal injury and was otherwise unaware of the matters referred to in s60I(1)(a)(ii) and (iii).
41 The first issue on which the plaintiff was cross-examined was whether his application for an extension of time had been made within three years after he ought to have become aware of all three matters listed in para 60I(1)(a). In that regard the defendant relied upon the evidence of the plaintiff and that of his wife.
42 The plaintiff's evidence on this issue was:
"Q. It is the fact, isn't it, that over a long period of time the symptoms about which you now complain, your drinking and mood swings and so forth, was that which caused the tension between you and your wife?
A. I don't think so, no.