Q. Then, paragraph 3, "Prior to that time I had thought that my reactions were simply my own way of dealing with the accident as part of the normal reaction"?
A. I think, yes.
…
Q. The thrust of my question is this: you knew, before you saw Doctor Morris, that your reactions were the result of the accident but you did not know they amounted to a psychiatric condition?
A. That is true.
25 It was submitted on behalf of the Commonwealth that the evidence established that Mr Smith's symptoms began straight after the collision, that he was aware that they were connected with it, that he kept on drinking to suppress disturbing thoughts about it and that he knew that his problem was related to drinking. In the circumstances he knew for the purposes of s 60G that he had suffered personal injury. Then it was submitted that it had not been shown that Mr Smith was unaware of the nature or extent of the personal injury suffered. Rather, the evidence established that he was aware of what was wrong with him. Although he was not aware that it was post-traumatic stress disorder, that was irrelevant. As to para (a)(iii), Mr Smith was well aware of the connection between the personal injury and the collision. During the six years which commenced on 10 February 1970 he was becoming increasingly disturbed, angry and discontented with his work and was drinking heavily and he associated those matters with the collision. For the purposes of para (b) Mr Smith ought to have become aware of all three matters listed in para (a)(i), (ii) and (iii) because, having connected his difficulties with the collision, he ought to have sought medical counselling and psychiatric or other appropriate help. If he had, those advising him would have told him about the connection between the collision and the symptoms he was suffering.
26 Counsel relied on Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443. In that case the members of the Court of Appeal cited with approval the remarks of Clarke JA in an earlier Court of Appeal case, CRA Limited v Martignago (1996) 39 NSWLR 13. In the former case the respondent sustained a neck injury when he was lifting pipes. Afterwards he suffered an injury to his lower back and neck. He claimed compensation from the appellant for both injuries and from a third party for the second. He claimed in an application for an extension of time that he had been unaware until he obtained the opinion of a specialist in May 1992 that he had been suffering from disc pathology in his neck. The question on appeal was whether, upon the earlier expiration of the limitation period, he was or ought to have been aware that he had suffered personal injury and of its nature and extent.
27 Clarke JA, with whom the other members of the Court agreed, observed that it might be accepted that he had not been told directly before May 1992 that he was suffering from disc prolapse and pressure on the spinal cord nerves. So he was not until then aware of the precise medical condition from which he was suffering. However, he did know that he had serious neck problems and he did know that at least one doctor took the view that a spinal fusion was desirable. His Honour concluded that the fact that the respondent was unaware before he received the advice referred to that his spinal cord nerves were caught in damaged discs did not matter because he knew, in broad terms, the condition from which he was suffering. He also knew that his symptoms arose from that condition and the procedures necessary to alleviate it.
28 His Honour approved a statement of Meagher JA in FJ Walker Limited v Webber Court of Appeal 16 November 1989 unreported that an applicant may not know the medical description or diagnosis of his or her condition and yet be unable to establish that he is unaware of the nature and the extent of his injury. His Honour continued at 20 -
The subsection is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is ether (sic) unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, and applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow (for example, osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.
I recognise that I have put the matter very generally. That is because the nature of the factual inquiry is not susceptible to precise definition. The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant inquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.
29 The Court in Commonwealth of Australia v Nelson was uncritical of Clarke JA's statement of principle. The facts of that case are of no particular assistance. The respondent had been involved in an accident in 1981. His case was that it was not until 1997 that, having read a psychologist's report, he connected his symptoms with the accident. He failed to make out his case because the Court did not believe him.
30 Relying on the principle explained in CRA v Martignago and applied in Commonwealth of Australia v Nelson, counsel for the Commonwealth submitted that Mr Smith had not made out his case. Counsel gave a hypothetical example of a man who got a bang on the leg and a consequent limp. He limped around and thought that he was getting old, getting a bad leg, but he knew and associated the limp with the injury. He did not know that he had a pathological condition but he associated it with the injury.
31 I do not think that the facts of the present case permit so simple an approach. To my mind, the evidence shows that Mr Smith did not know until he read the opinion of Dr Morris that he was suffering from an injury at all. Resort to examples of simple physical injuries does not help. Obviously, a man who hurts his neck or bangs his leg knows that he has suffered an injury. As the pain continues over the years and his neck becomes stiffer or his limp becomes worse he knows that his symptoms are of the injury. And although he may not understand the physiological process that is taking place or be able to essay a medical diagnosis, he knows in broad terms the nature and extent of his injury, at least insofar as it does not bring with it complications, implications and potentially serious consequences that he does not know about.
32 This case is different. Mr Smith was well aware that he had unwanted thoughts about the collision and that he drank to shut them out. But that does not mean that he knew that he had suffered an injury. He knew that he drank because he was depressed, and by that expression I mean unhappy, because Mr Smith did not know that he was suffering from any illness called depression. Many people drink in response to bad thoughts or unhappiness or to escape life's burdens and irritations. But they are not ill or injured and they do not think that they are. As a result of the collision Mr Smith lost his enthusiasm for his job. Many people do, often as a result of unpleasant experiences at work, but they are not injured or ill and they have no reason to think that they are. Many people become quicker to anger than they would otherwise be, reacting to unpleasant experiences at work, but they have suffered no injury.
33 None of the symptoms experienced by Mr Smith was likely, I think, to make him think that he had been injured, that it was an aspect of an illness. It is because most people suffer such manifestations without being ill or injured that those matters were unlikely to suggest to him that he was ill or injured.
34 I am satisfied that Mr Smith did not know until he received advice from Dr Morris that he had suffered an injury, let alone what its nature and extent were. It follows that he was unaware of any connection between it and the collision.