Is it "Just and Reasonable"?
44 The documentary history in respect of the applicant, Mr Wendt, was unusual. He had spent his entire working life in the Navy. He still works part time for the Naval Reserve. Exhibited to his affidavit was his entire medical file. After enlisting in 1961, each time he had a medical problem he consulted a Naval doctor. A record was made. If a test was carried out, the result was placed on the file. If he was referred to a specialist, the report by the specialist was attached to the file. The documents exhibited run to two lever arch folders. The Commonwealth, therefore, has a comprehensive medical history. Whilst that history does not document the evolution of symptoms referable to post traumatic stress disorder, and such fluctuations as occurred (because Mr Wendt kept those issues bottled up), it does provide an account of what was happening, medically, in his life. It is invaluable material, indirectly relevant to matters which are the subject of his claim, as the defendant's cross examination of him on this application demonstrated.
45 Reference was made in the course of the application to employment records. They were not tendered. There is no affirmative evidence that they still exist and are available. If they were available they would also provide an invaluable historical record of Mr Wendt's work history until retirement. Each time Mr Wendt sought promotion, records were created. As he progressed through the ranks, reports on his performance were compiled by his superiors (T7). A copy was furnished to Mr Wendt. Is it safe to assume that such records are still available? I believe it is. First, the opening questions asked of Mr Wendt in cross examination suggested counsel, or those who instructed him, had access to such reports. Secondly, as mentioned, Mr Wendt was given a copy of his superior's remarks. Since his retirement more or less coincides with the commencement of this action, I believe it reasonable to presume that he has preserved them. Thirdly, and in any event, since 1995 the Commonwealth has had to deal with a number of claims by persons on board the Melbourne who claimed to have suffered psychiatric injury as a result of the collision. It would have been foolhardy indeed for the Commonwealth, in those circumstances, to have discarded its records.
46 The medical file and the employment records go a long way, in my view, in overcoming such prejudice as arises through the late notification of a claim, now almost forty years old.
The Submissions by the Commonwealth.
47 The defendant made two broad submissions. First, it was submitted that the application should be refused. There was no elaboration beyond a reference to presumptive prejudice arising from the passage of time. It was impossible, according to counsel for the defendant, for the Commonwealth to defend itself because the claim arose so long ago.
48 Secondly, if an extension were granted, it should be on terms. Having regard to the difficulties which the Commonwealth would otherwise face, the Court should confine the plaintiff's claim to the period since, say, late 1999, when he first began to seek assistance in respect of the symptoms, which were later diagnosed as post traumatic stress disorder . Further, the plaintiff should not be allowed to pursue two matters which formed part of the particulars accompanying the Statement of Claim. They were matters said to be unsupported by medical evidence from either Dr Joffe or Dr Altman. The Particulars of Injury included the following:
"(l) Anxiety disorder.
(m) Adjustment disorder."
49 It is convenient to address the last aspect first. The plaintiff's counsel, in argument, confirmed that his client's claim related to post traumatic stress disorder and major depression. Anxiety was a feature of that condition. The paragraphs relating to anxiety disorder and adjustment disorder were not intended to identify psychiatric conditions separate from post traumatic stress disorder and major depression.
50 The defendant's suggestion that the plaintiff's claim should be delayed, so that he should not be permitted to recover for the period between 10 February 1964 and 31 December 1999, would mean that his right to damages would begin, if it begins at all, on and after, say, 1 January 2000. In support of this suggestion, the defendant pointed to a number of matters. First there was the complication created by Mr Wendt's service in Vietnam. Wartime service, in the nature of things, was stressful. It may lead to post traumatic stress disorder. It was not, however, compensable. Indeed, Dr Altman had expressed the view that although Mr Wendt's post traumatic stress disorder had been caused by the Melbourne/Voyager collision, it had been aggravated by his Vietnam war experience. How, it was asked, could the defendant possibly unravel the difficult issues of causation created by that sequence?
51 Attention was drawn to CSR Limited v Rendell (Court of Appeal, unreported, 7.8.96) where the plaintiff sought an extension of time against two of his former employers, CSR Limited and NSW Sugar Milling Co-Op Limited, in respect of industrial deafness. He alleged that his deafness had been caused by the negligence of both employers. Handley JA (Sheller and Cole JJA agreeing) upheld an appeal against an order extending time against each employer, saying this:
"In my judgment given the extent of the plaintiff's knowledge before August 1990 and even in 1982-4, it would not be just or reasonable to expose CSR to an action for industrial deafness when the quantification of the plaintiff's damages would be so speculative and uncertain. There is a real risk that CSR might be ordered to pay damages for industrial deafness it did not cause."
52 However, that was a very different case. The plaintiff unquestionably had suffered industrial deafness. The issue concerned the cause of his deafness and the contribution by two separate employers. Dr Carroll, an ENT specialist, said that, without audiograms, which historically define the extent of the loss, any assessment of the actual loss whilst working for CSR, as opposed to the other employer, was "necessarily conjectural". An audiogram had been undertaken in 1979, but had not been tendered by the plaintiff, as part of the material relied upon in his application. In that context, Handley JA said this:
"The 1979 audiogram was not in evidence, and the plaintiff's advisers appear to have made no attempt to secure its production to the Court, or to discover whether it still existed. If it still existed it would substantially fix and limit CSR's liability and limit the liability of the second claimant. On the plaintiff's evidence an audiogram may also have been taken in 1987. Such an audiogram, if still in existence, would identify any further hearing loss which occurred between 1987 and 1989, and thus help fix and limit the liability of the second claimant."
53 Counsel for the plaintiff sought to meet the difficulty occasioned by the absence of the 1979 audiogram by pointing to a decision of the Court of Appeal in Corowa Timber and Moulding Mill Pty Ltd v Wood (Court of Appeal, unreported, 11.5.89). The Court in that case, on limited material, drew an inference as to the degree of hearing loss. Handley JA, in distinguishing this authority, said this:
"The facts of the case are remote from those in the present cases. Only one employer was involved, extraneous exposure to loud noise after the employment ceased was not suggested, the plaintiff's hearing had been tested within 3 years of leaving that employment, and he had a cause of action which was within time."
54 Here, there was only one employer, the Navy. There were two potential causes of the post traumatic stress disorder found by Dr Altman in 2000, namely, the collision and the Vietnam war experience (or both). Unravelling the contribution made by compensable and non-compensable causes will depend, no doubt, upon the symptoms before Vietnam, the nature of the Vietnam experience and symptoms after. With the assistance of medical evidence, inferences are no doubt capable of being drawn. The fact that there are competing causes provides no justification for truncating the plaintiff's claim, so that his right to damages begins 35 years after the damage occurred.
55 Moreover, I doubt that I have the power to postpone the right to damages in the way suggested. The defendant could not point to a case where that had been done. It was suggested that it was part of the inherent power to ultimately fashion terms which are just and reasonable. Reference was made to two decisions of Hidden J, Gould v New South Wales [2005] NSWSC 1121 and Reeves v New South Wales [2005] NSWSC 1138 which were said to provide an analogy. However, I do not find support for the defendant's argument in either case. Both concerned policemen who had been diagnosed with a psychiatric condition. The condition was said, in each case, to be attributable to a number of discreet episodes experienced by each officer in his police career. The defendant succeeded, however, in demonstrating significant actual prejudice in respect of some of these episodes, such that his Honour declined to find that it was "just and reasonable" that the plaintiff should be permitted an extension to bring an action based upon such episodes.
56 Here, I believe it is just and reasonable to extend the limitation period. An extension will not result in significant prejudice to the Commonwealth. In my view, a fair trial may still take place, notwithstanding the delay. It would neither be fair, nor reasonable, to limit the duration of the claim as suggested by the defendant, even assuming I had the power to do so.