Werner v Commonwealth of Australia

Supreme Court of NSW|2022-12-07|Before: Schmidt AJ, Mr P

Solicitors: James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) File Number(s): 2021/346441

JUDGMENT

In 1964 Mr Werner held the rank of Electrical Mechanic Weapons Electronics. He was serving on board the HMAS Melbourne when it collided with the HMAS Voyager at night, some miles off Jervis Bay. The Voyager sank with very considerable loss of life and injury to survivors. Mr Werner, who assisted in the rescue operations conducted that night, later also suffered resulting injury, as did other members of the Melbourne's crew.
While the Commonwealth had opened a file in 2000 in relation to a claim that Mr Werner's then solicitor was investigating, it was only by a statement of claim filed in December 2021 that Mr Werner brought these proceedings. He claims that as the result of the Commonwealth's negligence he not only suffered personal injury because of his involvement in the collision, but other resulting loss and damage. They include the sale of his company in 2001, his inability subsequently to work and the loss of subsequent increase in the value of that company.

Conclusion

For reasons which follow I am satisfied that it must be concluded that Mr Werner has not met the onus which falls upon him to establish the "gateway" matters which must be considered on this application under s 60I of the Limitation Act which regulates the exercise of the Court's discretion to grant the leave Mr Werner requires.

Mr Werner's motion

Mr Werner's March 2022 motion seeking an extension of time to commence his proceedings is supported by affidavits he has sworn in which he: 1. described what he experienced during and after the collision, his discharge from the Navy and his later work and business history; 2. gave details of the ill-health he has suffered and treatment he has required; 3. referred to the applications he successfully made for a Gold card and pension; 4. claimed that he had not retained a solicitor, Mr Forster, who had approached him in 1995 to act for him on a compensation claim, which other former crew members were pursuing against the Commonwealth; 5. acknowledged that he had attended a psychiatrist after his meeting with Mr Forster, whose name he could not remember; 6. referred to the Department of Veterans' Affairs' decision to accept that the ischaemic heart disease, stroke and PTSD he had suffered were caused by the collision; and 7. explained the advice he received in 2021, for the first time, from his current solicitor about the negligence which had caused the collision.
Evidence served by the Commonwealth caused Mr Werner to alter aspects of his evidence, to which I will return, but he did not resile from his claim that it was only in 2021 that he first understood the negligence he had the right to pursue.
Mr Werner's case was supported by affidavits sworn by Mr Syaranamual, a fellow crew member and friend whose brother had died in the collision and who had lost touch with Mr Werner for many years afterward. Mr Syaranamual spoke to him in 2015 when Mr Werner told him about his theory. Mr Syaranamual also did not believe that the red lights caused the collision, but did not wish to argue with Mr Werner. In 2021 he learned from another former shipmate that Mr Werner's health was not good. When they spoke again Mr Werner revealed his medical problems and Mr Syaranamual introduced him to Mr Taylor after Mr Werner revealed that he had never made a claim for compensation.
Mr Taylor's affidavit annexed the November 2000 report of the psychiatrist Dr Hopwood, who had been instructed to provide a "medico legal report relating to Mr Werner's potential action against the Commonwealth of Australia and his involvement in the HMAS Melbourne-Voyager collision."
Dr Hopwood did not find that Mr Werner suffered a psychiatric condition which required treatment. But he commented on Mr Werner's difficulties in coming to terms with what had happened and Mr Werner's own guilt, given his perception of his role in the collision, suggesting that a psychologist's treatment might assist him. Dr Hopwood also observed "that his pattern of not discussing the details of the incident with anyone is related to this guilt and this would clearly be relevant in his delay in seeking any treatment or legal redress for these matters."
In her affidavit Mr Werner's eldest daughter, Ms Hartley, explained her years of experience of Mr Werner's disturbed sleep; his working life, which she described to have been that of a workaholic, with little time for the family and holidays taken in conjunction with business trips; how after his retirement, when he was no longer distracted by work, he was more difficult, irritable, anxious and depressed, having begun to mentally unwind after his first heart attack in 1996, to the point where he was no longer able to cope with running the business, which was then sold.
Ms Hartley also said that Mr Werner's interactions with family members had decreased after his retirement and then he had been hospitalised, suffering anxiety. She also explained how he had never discussed his naval experiences, even with her mother, who had accompanied him when he saw Mr Forster on a trip to Melbourne. In recent years he had, however, begun to discuss the friends who had died in the collision, his job, his superiors telling him to say nothing about the red lights and his conviction that there had been a cover up about the cause of the disaster.

Issues

There is no issue that Mr Werner's cause of action accrued at the time of the collision, with the result that time for bringing these proceedings expired in February 1970.
The parties also agreed: "1. The plaintiff was born in 1943. 2. The plaintiff joined the Royal Australian Navy 1961. He was aboard the HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager ("the Collision"). The Voyager was cut in two and the forward section sank within minutes with the loss of 81 crewmen and 1 civilian engineer. 3. The plaintiff was discharged from the Navy in 1970 and eventually built up a successful electronics business with substantial Navy contracts. He was a smoker. In April 1996 he suffered a heart attack and required a triple cardiac artery bypass graft. He thereafter ceased smoking. The plaintiff has subsequently suffered several strokes and has suffered significant cardiac impairment requiring repeated surgical interventions. He has also suffered from post-traumatic stress disorder for a significant time and has been admitted for psychiatric treatment since 2005. 4. In about 2000, the plaintiff attended David Forster of Hollows Lawyers, and was referred to a psychiatrist, Dr Hopwood. Dr Hopwood thereafter produced a medico-legal report for the solicitor. In 2005, the plaintiff lodged a claim for benefits with the Repatriation Commission for 'stroke, heart disease and emotional and behavioural'. The Commission referred the plaintiff to Dr Peter Furze, a psychiatrist in Adelaide, who saw the plaintiff and his wife on 3 occasions in 2005. Dr Furze produced a report dated 12 January 2006 diagnosing the plaintiff as suffering chronic post-traumatic stress disorder, and nicotine abuse (in remission since 1996). Dr Furze opined the majority effect of the diagnosed conditions was the Collision and the plaintiff's exposure to service in the Indonesian conflict in Malaysia and Borneo had some effect. The latter event made him eligible for medical treatment and pension benefits from the Commission. The Collision would not have made him so eligible as it was not suffered during operational service involving war or war-like activities. 5. In mid-2021, the plaintiff was referred to his current solicitor. In November 2021, the solicitor read out to him the Particulars of Negligence alleged in the statement of Claim filed in this proceeding."
In issue was whether Mr Werner has satisfied the onus falling upon him to establish the matters specified in s 60I of the Limitation Act and that the discretion granted by s 60G could justly be exercised in the circumstances revealed by the evidence.
In opening it was also suggested that there would be issues both as to Mr Werner's credibility and reliability. In closing the Commonwealth accepted that there was no credibility issue, given Mr Werner's evidence in cross-examination, where he not only acknowledged his limited recollection of various matters, but made a number of concessions against his interest.
But there remained a question about the reliability of Mr Werner's evidence.

Was Mr Werner's evidence reliable?

Understandably, given Mr Werner's age, health and the passage of time since the events in question he had problems, which he acknowledged, in remembering things about which he gave evidence. The result is that his evidence must be approached with some caution.
In re-examination Mr Werner said that if documents in evidence were different to his evidence, his evidence should be preferred. But that was inconsistent with concessions which he had properly earlier made in cross-examination, when taken to contemporaneous documents which he accepted were accurate.
In the result I am satisfied that contemporaneous documents, including those which establish that Mr Werner sold his business in 2001 and not 2004, for example, put beyond argument that when his evidence is inconsistent with such documents, it cannot be preferred.
To understand this conclusion, how Mr Werner's evidence unfolded must be explained.

The evidence

In his first affidavit Mr Werner said he had contacted his solicitor Mr Taylor only in 2021 about making a claim against the Commonwealth, after speaking to a fellow crew member on the Melbourne about his serious ill health, who had asked him if he had ever made a claim for compensation. He had only ever made a pension claim to that point and so contacted Mr Taylor, who made him aware, for the first time, of the acts and omissions that had caused or contributed to the collision.
Mr Werner also there explained that after his 1970 discharge from the Navy, his employment history was: Electronics Manager for Hugh Quin Pty Ltd from 1971 to 1972; Director Werner Electronics Pty Ltd from 1973 to 1983; Divisional Manager Hawker de Havilland from 1983 to 1984; Managing Director of Advanced Systems Pty Ltd from 1984 to 2001; and Manager Australian Defence Industries, which had acquired Advanced Systems, from 2001 to 2004.
This history explains Mr Werner's concession that he could have pursued the legal advice that Dr Furze recommended in 2006 he should seek.
Mr Werner and his wife had both worked for Advanced Systems, which had about 50 employees. It had a contract with the Department of Defence repairing and maintaining radar systems and a library of electronic warfare systems which he described as involving highly specialised advanced electronic work.
Mr Werner also there explained having suffered a severe heart attack in 1996 which required surgery, but from which he recovered and returned to work. He suffered his first stroke in 2001, from which he also recovered and returned to work. He suffered a second stroke in 2004 and has not worked since. He also suffered PTSD. In the following years he had been repeatedly hospitalised as a result of his heart problems and had other surgery. He had also been admitted three times for treatment of his PTSD.
But for his ill health Mr Werner said he would have continued to work and believed that he would still be managing and directing his company. He also said that he was compelled to sell his company in early 2004 because of his health, having completed only two months of a five year contract with the Department of Defence and having been advised that a second five year contract would be offered.
This conflicted with the history Mr Werner had earlier given, that he had sold his company in 2001, which contemporaneous sale documents established as he accepted in cross-examination.
In his second affidavit, which was unsworn and which he adopted when he gave his oral evidence, Mr Werner explained how in 1995 he had received an unsolicited call from a Victorian solicitor Mr Forster, who had been given his name by a fellow crew member on the Melbourne. Mr Forster wanted to talk to him about a possible claim arising out of the collision.
Mr Werner later had a brief meeting with Mr Forster, who advised that he might have a claim for compensation and would send him to a psychiatrist. But "[h]e then stated that I should inform the psychiatrist that I had seen things which I had not seen. He wanted me to lie. I refused to engage in such dishonest behaviour which disgusted me and alarmed me. I walked out of his office and have had nothing further to do with that solicitor. I did not retain him to act for me. He did not explain to me any basis for receiving money in respect of the collision save for telling lies to a psychiatrist, which I flatly refused to do. He did not explain or mention to me any negligent acts or omissions that had caused the collision. All that I knew was that something had gone wrong but I did not know what it was."
Since then he had not communicated with any lawyer regarding a claim for damages in respect of the collision until he met with Mr Taylor, who explained the negligent acts and omissions that had caused the collision. Other evidence established that this was not accurate.
In his third affidavit sworn in May 2022, Mr Werner said he had remembered having met a solicitor in relation to the collision in the mid-1990s after Mr Forster's unsolicited approach by telephone, who Mr Werner presumed had obtained his contact details from another crew member. Mr Forster advised him that he wanted to meet to talk about a possible claim Mr Werner might have arising out of the collision.
Mr Werner said that at their meeting Mr Forster said that he may have a claim for compensation; that he would send him to a psychiatrist; and that he should inform the psychiatrist of things that he not seen. He was disgusted and alarmed at this request. Mr Forster did not discuss negligent acts and omissions causing the accident. But in cross-examination Mr Werner said he could no longer remember his meeting with Mr Forster.
Mr Werner also said he then believed that the lights he had put out may have caused the accident and that he otherwise had no idea what caused it. He felt that the Royal Commissions had missed this.
He told Mr Forster that he had suffered shock and anxiety after the collision, had unpleasant memories and bad dreams, including about the lights he had erected which he dreaded might have caused confusion and felt guilty that he had survived when so many others had died or suffered injuries. Uppermost in his mind then was finding out whether the red lights had contributed to the collision.
Mr Werner also said that he had buried the memory of his attendance on the psychiatrist, everything to do with the collision being very painful. He remembered being asked questions which made him uncomfortable. While he wanted to tell his story he felt that the psychiatrist was putting words into his mouth and that he did not tell him anything about his condition, or why he felt as he did. Mr Werner also did not know if the psychiatrist had prepared a report, which Mr Werner claimed he had never seen or been told about.
Nor did he retain Mr Forster to act for him. He did not communicate with any other lawyer about the collision until he saw Mr Taylor.
In his fourth affidavit, sworn in November 2022, Mr Werner was replying to the Commonwealth's evidence, including contemporaneous documents . There he said that he had earlier forgotten both about Mr Forster and Mr Stringer's claim.
He had employed Mr Stringer in 1990. They had not known each other in 1964 and he had employed him after he left the Navy, on the recommendation of some Navy contacts. They had seen a photo taken on the Melbourne in which they were both standing at the bow and then had a brief discussion about this. Later he became aware that Mr Stringer was pursuing a claim. But he had only recently become aware that Mr Stringer had succeeded and had been astounded to hear that in 2006 he had discussed giving evidence on his behalf. He had no recollection of that, nor of his meeting with Mr Forster or Dr Hopwood. He also said: "I note that in my supplementary affidavit I stated that I walked out of Mr Forster's office in disgust at what he was telling me to say to the psychiatrist. That may be a more figurative than literal description. I know that I did not want to have him act for me, and I have an impression that he was not trustworthy, but I cannot recall any of the specific discussion we had. In particular, I think I expected that by seeing him, someone would finally recognise that the red lights I had rigged up on the Melbourne were likely what caused the collision. I wanted the truth to finally come out. However, no one wanted to accept my explanation. I felt that the visit had been an exercise in futility."
Much of this affidavit evidence cannot be accepted, contradicted as it is by contemporaneous documents and concessions Mr Werner made in cross-examination.
While Mr Forster's practice, Hollows Lawyers, later went into receivership, various records are in evidence. Documents thus establish that it was 2000 when Mr Werner saw Mr Forster; that he did retain him; that he referred him to Dr Hopwood; and that Mr Forster pursued steps to investigate Mr Werner's claim, with the result that the Commonwealth opened a file, but no claim was finally pursued by Mr Werner.
The trust account records reflect payments which Mr Werner made in 2001 to Hollows Lawyers, including for the report which Dr Hopwood provided after he saw Mr Werner on Mr Forster's referral, as well as later payments. The last payment was made in 2003.
Other documents establish that Mr Stringer later also engaged Mr Forster to pursue a compensation claim against the Commonwealth for the injuries he suffered in the collision. Those records establish various communications with Mr Werner, including about giving evidence, but the claim appears to have been settled.
In his oral evidence Mr Werner also said that the first time he believed that he might have a claim for damages against the Commonwealth was when he saw his current solicitor Mr Taylor in 2021, before which he had no belief as to who might have been responsible for the collision, to which he thought he might have contributed. This did not accord with evidence which he gave in cross-examination, in which Mr Werner: 1. agreed that when he made an application for Gold card benefits he received advice from an advocate from the Vietnam's Veterans Association of Australia, but he could not recall gathering medical evidence to support his application; 2. did not recall reading the 2006 Repatriation Commission's reasons for decision which accepted his application, but agreed that he had then claimed that his increased smoking on operational service had caused his first stroke; 3. accepted that he knew at the time he made this application that he had been diagnosed to be suffering cerebral ischemia, which he claimed had been caused by his heavy smoking which commenced after the collision, in order to deal with the stress it had caused; 4. said that he had suffered his first heart attack in 1996, when he had a triple bypass and was advised that it had been caused by ischaemic heart disease, cholesterol having stopped blood going through three arteries; 5. said he did not remember seeing Dr Hopwood or reading his report, but accepted that it was likely that the history which he gave included that described in his report, including in relation to the heart problems Mr Werner had suffered to that time; 6. agreed that part of his Gold card claim was that the heart disease he had suffered was also caused by his smoking, eating the wrong foods and cholesterol; 7. agreed that claim was also based on suffering PTSD; 8. agreed that Dr Furze had examined him as the result of his claim and diagnosed him to be suffering that condition. When taken to Dr Furze's report he said that he was pretty confident that he had not seen it, despite earlier having said he had. He then clarified that what he had seen was a letter from the Department of Veterans' Affairs advising that a psychiatrist had diagnosed him to be suffering PTSD, although he said not as the result of the collision; 9. agreed that he was then suffering symptoms caused by PTSD such as sleeplessness; irritability; avoiding speaking about the Navy and the collision, which he said he had discussed in his two meetings at which his wife had been present; avoiding crowds; and having recurring dreams about being on a boat, seeing another upturned boat and hearing cries for help; 10. said that since 2005 he had been receiving treatment from a psychiatrist Dr Veale for his PTSD symptoms, which he knew were connected to the collision; 11. said that in 2017 he also began suffering panic attacks, for which he sought help. While at first denying that in 2018 when he called a helpline, he knew he had PTSD, records showed he then referred to that diagnosis and that it had been caused by the collision. He also said that he had researched PTSD in 2006 when advised of Dr Furze's diagnosis; 12. said that in 2013 he had made an application which he had prepared for an increase in his disability pension, in which he referred to his cerebral ischemia, ischemic heart disease and PTSD, and that he knew the symptoms he was suffering were in part the result of the collision; 13. while he denied knowing at the time of the collision various of the causes pleaded in his statement of claim, agreed that he then knew that those responsible for the steering of both the Melbourne and the Voyager had not kept proper watch for the other vessel, which was also pleaded; 14. said that he knew of the first Royal Commission but not he second, until after he returned from 12 months duty in the China Sea; 15. explained his theory about how the lights he had set up contributed to the collision; 16. could not remember the form he had completed for the first Royal Commission's investigation into the collision, but agreed that he had prepared and signed it and that it did not refer to his theory; 17. claimed that he had lost interest in the first Royal Commission when they started blaming the Captain of the Voyager and while he had vaguely followed it and read newspaper reports on his return, he had never read the 1968 report of the second Royal Commission, not being interested; 18. explained his evidence that this Royal Commission had missed his issue with the red lights which arose from things he had been told by others; 19. volunteered having read a book written by Mr Frame about the collision and having then spoken to him about why the Royal Commissions had disregarded the lights as a possible reason for the collision, as a result of which he had thought that they had been overlooked; 20. when taken to the report of the second Royal Commission, accepted that his theory had been looked at and when asked why he had not read the report said he did not know that there was "a written document out that you could get"; 21. agreed that it had not been his decision to use the red lights and that if there had been any fault, it was that of whomever made the decision to use those lights, which was not him; 22. could then only remember hearing of one other person bringing compensation claims, Mr Stringer, and of only having become aware of this claim in 2015; 23. could not then remember whether he had seen a lawyer in 1995 or 2000 and said that he had not referred to seeing a lawyer in his first affidavit, because until that was later raised with him by Mr Taylor, he had not remembered it; 24. when taken to his second affidavit, where he had said that the lawyer had wanted him to say things to the psychiatrist which were not true, he could not remember that; 25. while he there said he had nothing further to do with that solicitor, he had seen Dr Hopwood and he remembered later discussing the meetings with his wife, who died some years ago, who agreed that he did the right thing in walking out; 26. agreed that he had not walked out in disgust at Mr Forster and if he had, he would not have seen Dr Hopwood and paid him; 27. he did not remember reading Dr Hopwood's report, until given it recently by Mr Taylor. He was asked if it was possible Mr Forster told him about the report, but he did not remember that. He was also asked: "Q. Because isn't it the case that one reason you didn't pursue a claim, at the time or at around the time you got advice from Mr Foster, is that the evidence was that you didn't suffer from a psychiatric injury and that that would that a claim would be difficult? A. I think that's partly correct. Q. It is partly correct that you were told that? A. I knew in my own mind that something wasn't right. Q. Can you remember speaking to either Mr Foster, or another lawyer, about the claim by Mr Stringer for compensation A. No." 1. explained that Mr Stringer was employed to manage one of the departments at Advanced Systems and they had discussed the collision in one or perhaps two short conversations and he knew that Mr Stringer was pursuing a claim for compensation; 2. agreed he saw Mr Forster again in 2015 and that he was then happy to assist him to pursue Mr Stringer's case, even though he had made a decision not to bring a case about the collision; 3. claimed that he sold his company only in 2004 after his wife was diagnosed to be suffering cancer and was not expected to live, but agreed that the sale documents established the sale had occurred in 2001 and so his recollection was mistaken; 4. did not recall telling Dr Hopwood in 2000 that he aimed to sell his business and then had some interested parties, but said that was before his stroke. He also denied that his health had nothing to do with the sale; 5. insisted that he would have continued operating the business until after he was aged 60 but for his health, despite a superannuation fund he had earlier set up also referring to his intended retirement at that age; 6. said he sold the business for $2million; and 7. volunteered that when he saw Dr Furze in 2006 it was suggested to him that he see a lawyer, but that he did not want to talk to anyone about his PTSD, even though there was no reason why he could not have consulted a lawyer after his diagnosis.
But Mr Werner did later discuss his PTSD and experiences with others, later pursuing various treatments, making a claim to increase his pension and agreeing to assist Mr Stringer in his pursuit of a claim against the Commonwealth.

The parties' cases

Mr Werner contended that he had met the requirements of s 60I, given the evidence of the injuries which he suffered as the result of the collision and the evidence that he did not receive advice about the particulars of the Commonwealth's negligence, which he had pleaded, until 2021.
Like in Winston v Commonwealth [2021] NSWSC 62, it would be accepted that he was not and ought not to have been aware of the connection between his injuries and the Commonwealth's acts and omissions until he contacted his current lawyers in 2021, given his evidence that he did not want to talk to others about the collision. That precluded the finding that before 2021, he ought to have known the relevant matters, despite his pursuit of a Gold card and pension, they having been different to an action for damages.
It was also argued to be too long a bow to draw from the assistance he had provided Mr Stringer in his claim for such damages, to conclude that he ought also to have known that he too could pursue such a claim against the Commonwealth. This was not like the situation which arose in Jones v New South Wales [2020] NSWSC 830 at [60], where it was concluded that lawyers should have been asked to investigate mental health problems 10-15 years earlier, with the result that forensic diligence to advance Mr Jones own interests had not been exercised. In any event, that was not what s 60I required. Nor could a solicitor's awareness of relevant matters be imputed to an applicant: Waldron v Joondalup Hospital Pty Ltd (2018) 98 NSWLR 552; [2018] NSWCA 182 at [82]-[87].
The Commonwealth's case was that Mr Werner's evidence that he only became aware in 2021 of the connection between his injuries and the Commonwealth's acts and omissions, when Mr Taylor read them to him could not be accepted in the face of evidence that: 1. he retained Mr Forster in 2000 about his possible claim, when Dr Hopwood examined him and provided a comprehensive report, having been instructed that Mr Werner's writ claimed injuries suffered as a result of negligence, which may include PTSD; 2. the day after Dr Hopwood was instructed, on 28 July 2000 the Commonwealth opened a file relating to Mr Werner and the collision; 3. contrary to his claim that he had no further interaction with Mr Forster after about July 2000 and never saw Dr Hopwood's report, he paid Hollows Lawyers sums held in trust for their work and that of Dr Hopwood, the last payment having been made in 2003; 4. Hollows Lawyers' records evidenced that Mr Werner later also communicated with them about his involvement in proceedings pursued by Mr Stringer against the Commonwealth about the injuries he had suffered in the collision; 5. Mr Werner knew in 2005, at the least, that he had suffered cerebral ischemia and ischaemic heart disease as the result of the collision and pursued claims with the Department of Veterans' Affairs, which were accepted, then relying on the 2003 report of the neurologist Dr Black; and 6. he was then examined by the psychiatrist Dr Furze who in 2006 diagnosed Mr Werner with chronic PTSD for which he should pursue treatment and legal advice.
In the result the evidence established that Mr Werner was, or ought to have been aware of the connection between his injuries and the Commonwealth's acts and omissions since 1995, or at the latest 2000 and certainly no later than 2005 or 2006. The existence of that awareness was confirmed in 2015 by the assistance he provided Mr Stringer and in 2018 by other actions which he then took.

The legislative requirements

The onus falls on Mr Werner to establish his case that it was only in 2021 that he came to have the necessary awareness with which the legislative scheme is concerned.
Mr Werner lives in South Australia. It is the operation of the Judiciary Act 1903 (Cth) which makes the applicable law in his case the Limitation Act, it being this State in which jurisdiction in respect of his claim is being exercised: Blunden v Commonwealth (2003) 218 CLR 330; [2003] HCA 73 at [18]. His action having accrued before 1995, cl 4(1) of Pt 1 of Sch 5 of the Limitation Act applies: Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57 at 177. Section 14(1)(b) specifies that a cause of action founded on tort is not maintainable if brought after the expiration of six years, running from the date on which the cause of action first accrues.
Section 60I of the Limitation Act precludes the Court granting the leave sought unless Mr Werner establishes on the evidence that he: (a) … (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
Further, s 60I also requires that Mr Werner establish that his application: (b) ... is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (i)-(iii).
What is in contest has to be resolved in light of the way in which the statutory scheme has been construed. In Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209, it was held at [11] that: "Paragraph (b) of the provision has two functions. The first is to ensure that, on the assumption that the plaintiff became aware of the matters listed in par (a) prior to making the application for extension of time, the Court must be satisfied that the application was made within three years of achieving that state of knowledge. The second function, implicit in the words in parenthesis, is that the application was also made within three years of the time at which the plaintiff 'ought to have become aware' of all of the matters listed in paragraph (a). The Commonwealth's complaint is that, in relation to the latter normative element, the primary judge gave no attention to the relevant considerations. He referred to it only in par [46], which read in full: '[46] The plaintiff has satisfied me that during the limitation period he was at least unaware of the connection between the injuries in respect of which he now claims compensation and the collision between the Melbourne and the Voyager . The application is made within three years after the plaintiff became aware (or ought to have become aware) of all the three matters in s 60I(1)(a). I, therefore, turn to s 60G(2).'"
Despite submissions to different effect initially advanced for Mr Werner, it was finally accepted that Shaw binds the Court as presently constituted. Reliance had been placed on Commonwealth of Australia v Smith [2007] NSWCA 168, which was submitted to have arrived at a different construction, but that was withdrawn.
There leave to appeal from an extension of time granted to Mr Smith was refused, he having also brought proceedings out of time in respect of injuries he claimed he had suffered in the Voyager collision.
Giles JA there observed that where "psychiatric injury is in question, the knowledge of personal injury in s 60I(1)(a)(i) is knowledge of a recognised psychiatric illness": at [23]. In that case the claimed injury was also PTSD, but the application had been made even before Mr Smith had become aware of having suffered that injury: at [26].
His Honour also explained that actual awareness and whether a plaintiff "ought to have become aware" of an injury are distinct. Referring to what had been held in Shaw at [11], Giles JA also observed at [28]: "Whether a plaintiff ought to have become aware has been said to involve whether the plaintiff took all such action as it was reasonable for him to take to find out: Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36] per Foster AJA, Mason P and Einstein J relevantly agreeing; Commonwealth of Australia v Smith at [103] per Santow JA, Handley JA agreeing; Commonwealth of Australia v Shaw at [31]."
While Giles JA was in the minority on the question of leave to appeal, which turned on the question of prejudice if the required extension of time was granted, McColl JA and Studdert J did not take issue with this approach to the construction of the legislative scheme: at [83] and [126].
In this case, whether Mr Werner had taken action it was reasonable for him to take in his circumstances, was in issue.

The analogy sought to be drawn with Winston's case

For Mr Werner it was urged that the approach of Harrison J in Winston, who followed what had been decided in Shaw, would be pursued in his case. There was no issue that there, his Honour had correctly applied what had been decided in Shaw.
Harrison J concluded that Mr Winston's psychiatric condition placed him "well outside the range of adequately functioning individuals who might be classified as those who ought to have been aware of the connection between his personal injury and the Commonwealth's acts or omissions": at [30].
In Mr Werner's case it may be accepted that not only has he long suffered PTSD he now has considerable problems with his memory. But that he was not an adequately functioning individual with the capacity to be aware of the connection between his personal injury and the Commonwealth's acts or omissions, cannot be accepted. Given his achievements in life, his pursuit of legal advice and various concessions which he made in cross-examination, that conclusion is not open.
Harrison J also explained at [30] that the word "ought" in s 60I(1)(b), suggested "some reasonable expectation falling short of an express obligation or duty to do something." In Mr Winston's circumstances his Honour could not conclude that he ought to have become aware of the connection referred to in s 60I(1)(a)(iii), before he became aware of it in fact, given the psychiatric condition under which he was labouring.
Mr Winston had been discharged in 1972 and it was not in dispute that by 1996 he knew that as the result of the collision of HMAS Melbourne and USS Evans, he suffered from severe chronic PTSD, major depression and had succumbed to alcohol abuse, for which he had been admitted to a clinic because of the severity of his condition and that his psychiatric condition rendered him totally and permanently unfit for work: at [15]. Mr Werner's circumstances were considerably different.
Having observed Mr Winston's cross-examination Harrison J was satisfied that Mr Winston never drew a relevant connection between his personal injury and any act or omission of the Commonwealth, before he saw his statement of claim. His Honour also accepted Mr Winston's evidence that he did not become aware of the connection before that, having "with great respect to Mr Winston, some continuing doubt that he has become aware of the connection even now": at [22].
In the result Harrison J concluded that there was "a considerable air of artificiality attending the contention or expectation that a man with Mr Winston's experience, qualifications and limitations, including his considerable medical issues, ought somehow to have discerned the connection between the matters to which s 60I(1)(a)(iii) refers": at [24]. Mr Werner's circumstances were considerably different.
The evidence established not only that Mr Werner pursued a successful career which enabled him to sell the company of which he was managing director for a significant sum, but he took advice from a lawyer and psychiatrist about pursuing a claim against the Commonwealth. While he didn't then pursue such a claim, later he successfully made a claim for a Gold card and disability pension which established that he had suffered injury as the result of the collision, including PTSD. While he then pursued treatment, he did not pursue the further legal advice the psychiatrist recommended. But there was no suggestion that he could not understand that recommendation.
Mr Winston's position was that on the recommendation of his psychiatrist, he had pursued a claim which he had left in the hands of his solicitor; that he had never discussed the collision or the Commonwealth's legal liability with former shipmates; that he did not understand the difference between workers compensation and damages claims, which had not been explained by his solicitor; that he had not sought legal advice about the collision before seeing his current solicitor, that being something he didn't think about, consistent with his psychiatric condition: at [25]-[27].
Similar conclusions are not available in Mr Werner's case, given the evidence of the level of his functioning, despite the PTSD and other health issues which he suffered; his concessions about his understanding of the causes of the collision; the advice which he in fact sought in 2000 about making a claim against the Commonwealth, even before he was diagnosed to be suffering PTSD; and the claims which he later pursued and advice that he was then given that he should also seek legal advice. While he did not do so, he later assisted Mr Stringer in his pursuit of such a claim.

When did Mr Werner become aware that he had suffered personal injuries?

In opening submissions reliance was placed on Commonwealth of Australia v Smith [2005] NSWCA 478, where at [16] Handley JA explained that the law does not recognise that emotional and mental problems constitute an injury "unless they constitute a psychiatric illness that has been recognised as such by 'professional medical opinion.'" Thus a plaintiff who is aware of all his symptoms, "cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric illness. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury."
In cross-examination Mr Werner accepted that he had gained an understanding that he had suffered heart disease in 1996, strokes in 2001 and 2002 and again in 2004 and PTSD in 2006.
In 2000 Mr Werner retained Mr Forster, but finally did not pursue a claim against the Commonwealth, having been examined by Dr Hopwood who, despite the emotional and mental problems Mr Werner was then suffering, did not diagnose PTSD.
It was in 2006 that Mr Werner succeeded in his claim not only that the heart disease and strokes he had suffered had resulted from what he experienced during the collision, when he pursued applications for a Gold card and the disability pension. He also established that he was suffering PTSD. It was then that he was referred to Dr Furze who advised in January 2006 that he was suffering chronic PTSD.
In closing submissions, that Mr Werner had the necessary knowledge that he had a legal case that he could have pursued and made a decision not to pursue it was still denied, even though it was Mr Werner who volunteered that when he saw Dr Furze, he suggested that Mr Werner take legal advice.
But in 2005 Mr Werner did pursue his known injuries being stroke, heart disease, as well as his emotional and behavioural problems. The delegate of the Repatriation Commission who dealt with his claim accepted that he suffered cerebral ischemia, ischaemic heart disease and PTSD from 11 January 2005. In the reasons given for decision in May 2006, the delegate referred to Mr Werner's medical diagnoses for these conditions, which were accepted; his accepted history of heavy smoking causally related to his service from January 1965 to December 1996; the statements of principles which accepted that cigarette smoking was a factor contributing to both cerebral ischemia and ischaemic heart disease; the acceptance that both were service related; as well as the acceptance that his involvement in the collision and later combat service had contributed to the PTSD he was also suffering, which was also service related.
On all that evidence there can thus be no question that by 2006 Mr Werner had become aware of all the personal injuries which he now pursues.

In 2006 Mr Werner was no longer unaware of the nature and extent of his personal injuries

In opening written submissions it was argued that while Mr Werner may have had some vague awareness of some decline in his mental acuity, he had no knowledge or awareness that he was exhibiting a specific pattern of mental decline. Reference was also there made to dissociative amnesia, a submission which was not pressed, although reliance was placed on Dr Hopwood's 2000 observations about dissociation.
On the evidence I have discussed, it is not open to conclude that in 2006, after the Repatriation Commission accepted his claims, Mr Werner was still unaware of the nature and extent of his injuries, including PTSD. To the contrary, he then accepted Dr Furze's advice and sought treatment for that condition.

When did Mr Warner become aware of the connection between those personal injuries and the collision?

The evidence also established that by 2006 Mr Werner had also become aware of the connection between his injures and the collision. That was what he claimed in his 2005 application.
While Mr Werner denied having retained Mr Forster to act for him in respect of a compensation claim against the Commonwealth for such injuries, his evidence cannot be accepted in the face of what the documentary evidence establishes. Mr Forster was retained in 2000, he pursued investigations which resulted in the Commonwealth opening a file and Dr Hopwood examining Mr Werner. Mr Werner also paid for the services he received.
Mr Werner cannot now remember having received or read Dr Hopwood's report. It seems unlikely that he would not have, having retained Mr Forster, been examined by Dr Hopwood, paid for the resulting report and made his last payment to Hollows Lawyers for the services he was provided up to 2003.
But even if he did not read the report, the evidence is consistent with Mr Werner finally making a decision not to pursue a damages claim, understandably given advice that he had not suffered a psychiatric injury. That was rational, leaving open as it did the possibility of pursuit of such a claim, if he did later develop a psychiatric illness.
That Mr Werner was then aware of the connection between his emotional and mental problems and the collision follows from the handwritten document he provided Dr Hopwood, as well as the history which Dr Hopwood explained in his report. That was also consistent with the claims Mr Werner pursued in 2005, the history he gave to Dr Furz, the PTSD then diagnosed and his evidence in cross-examination.
Dr Hopwood's report included a description of the red lights Mr Werner had erected; where Mr Werner was, what he heard, saw and did during and after the collision; his views about the confusion caused about the red lights; his haziness in recollecting details, consistent with dissociation at the time of the collision; and the absence of other symptomatology consistent with PTSD, such as no daytime intrusive recollections, infrequent dreams about a boat going down, which were not particularly arousing, and not experiencing general anxiety, irritability or startle reflex.
Not being very sociable and disliking crowds; not talking about the collision, but denying actively avoiding doing so and experiencing feelings of guilt about contributing to the collision because of the lights were noted by Dr Hopwood. Mr Werner also reported occasional brief periods of lowered mood and chronic insomnia, a pattern he had experienced for many years. He had also explained his history of heart disease, but denied any pervasive depression of mood and was able to discuss the collision with only mild difficulty. Brief screening of cognitive dysfunction was unremarkable, apart from difficulty in recalling some details of the collision.
Dr Hopwood concluded: "9.Overall Impressions On the basis of my interview I concluded that Mr Werner has had significant psychological impact from his involvement in the Melbourne Voyager collision 1964. He does not currently meet the criteria for diagnosis of Post Traumatic Stress Disorder, Major Depressive Illness or other primary psychiatric disorder and to the best of my judgment, based on a single interview has not done so since the time of the collision. I feel the extent of his dissociative symptoms related to the time of the incident; in particular leading to his inability to recall some details is consistent with the diagnosis of an Acute Disassociative Episode. Such responses are indeed very common in the presence of severe trauma. Further to that diagnosis which in its own right has not been a cause of major disability, Mr Werner clearly has carried some considerable conscious guilt over his perceived potential role in the collision. This emotion does not on its own constitute a psychiatric diagnosis. To what extent it may have contributed to any exacerbation in his perfectionistic and workaholic personality style, it is impossible to conclude with any certainty. It must be stated that such a personality style would likely to predispose him to develop such guilt over his own role. At this time I do not feel any further psychiatric diagnosis was indicated."
In his January 2006 report Dr Furze recorded Mr Werner's by then considerable history of heart problems, strokes and other health problems. He reported not having received any psychiatric treatment and gave a detailed description of the red lights, the collision, as well as his service on the HMAS Teale and involvement in operational incidents in Malaysia involving gun fire. He then became agitated speaking about the collision. Dr Furze concluded that Mr Werner suffered chronic PTSD, the majority of the effect having been the result of the collision.
The symptoms Dr Furze recorded differed to those reported to Dr Hopwood, including as they did a reaction of intense horror to the collision; weekly intrusive dreams; avoiding reminders of naval activity; avoiding crowds and funerals; persistent pessimistic attitude and significant sleep disturbance and irritability. But there was no history of hypervigilance and no severe startle reaction. Mr Werner was also noted as having had significant life achievements, both personal and professional.
Dr Furze recommended counselling to which he said Mr Werner was opposed, but which he then pursued.
Mr Werner also claimed that he had not read Dr Furze's report. But he said that he had been advised of its contents by letter and he then acted in accordance with his advice. Mr Werner sought treatment from the psychologists Ms Podorozhnaya and Mr Dansie and the psychiatrist Dr Veale. Mr Dansie's file notes reflect that Mr Werner discussed what he experienced during the collision.
A file note of a helpline that Mr Werner accessed when suffering a panic attack in 2018 also refers to his PTSD diagnosis and the two incidents while in the navy.
On all of this evidence the conclusion that when he became aware of Dr Furze's PTSD diagnosis in 2006 and the result, acceptance of his claims for a Gold card and disability pension, that Mr Werner had become aware of the connection between all the injuries he now pursues and the collision, is unavoidable.

After the expiration of the limitation period when ought Mr Werner to have become aware of the connection between the Commonwealth's acts and omissions and his injuries?

Mr Werner's case was still that he was not aware of this necessary connection until the statement of claim was explained to him in 2021.
That was said in opening to be unsurprising, given that it required an experienced and trained eye, armed with the findings of the Royal Commissions, to perceive and appreciate the alleged manner in which the officers in charge of the vessels had contributed to the occurrence of the collision. They were what was pleaded: Drayton Coal Board Pty Ltd v Drain (Court of Appeal (NSW), 22 August 1995, unrep). Mr Werner's sense of responsibility for the collision had also rendered him unable to comprehend any explanation for the collision, other than his own.
Contrary to this submission despite his acknowledged memory problems, in cross-examination, Mr Werner exhibited no such lack of capacity. He understood and responded to questions put to him about his pleaded case, made concessions about relevant matters contrary to his interest, including in relation to his memory, his theory about the cause of the collision and his contribution to it and the acts and omissions which caused the collision. That reflected a person understanding and properly adhering to the requirements of his oath, despite being in the difficult position Mr Werner was in.
Understandably in reply it was thus accepted for Mr Werner that the only real issue still lying between the parties was this third "gateway". It was then submitted that it was a big leap to say that someone with no legal qualifications who knows there has been an accident and somebody has been at fault, must have realised that they had a case based on the negligent acts pleaded on the part of the Commonwealth.
In cross-examination, however, Mr Werner had conceded that even at the time of the collision he was aware of some of the now pleaded acts and omissions of the Commonwealth, on which his case is advanced.
That established that Mr Werner even then had subjective knowledge of the existence of some of the pleaded acts and omissions. That precludes the conclusion that in all the circumstances, he ought not to have had the relevant objective knowledge of the connection between them and his injuries long before 2021 when he saw his current solicitor.
Even if those concessions had not been made, the conclusion that Mr Werner ought to have become aware of the necessary connection before then, given all of his circumstances, would have followed from other evidence.
The causes of the collision had been examined in two Royal Commissions. While Mr Werner had not read the report of either, he had read newspaper reports as well as Mr Frame's book. There Mr Frame explained the findings. Mr Werner then went to the trouble of discussing with Mr Frame the possibility that the lights he had erected had contributed to the cause of the collision, which the Royal Commission had examined and rejected.
That Mr Werner did not agree with this and still felt guilt for having survived can be accepted, given his evidence and what documents established he has repeatedly told others, despite reading Mr Frame's book and his discussions with him. In 2013 when he sought an increase in his pension, for example, the attachment Mr Werner prepared explained his ongoing feelings of guilt, as well as worsening symptoms of PTSD.
Guilt explains Mr Werner's decision, to which he long held, not to pursue a claim of the kind he only brought in 2021, even though in cross-examination he accepted that the Royal Commission had considered and rejected the red lights he had erected having contributed to the collision.
As was observed in Shaw at [62], a possible reason for not taking earlier steps in relation to possible legal entitlements can be found in a psychiatric illness and failure to talk about the traumatic event can also be either a symptom or a result of PTSD.
But that does not preclude the conclusion that before 2021, Mr Werner ought to have become aware of the connection between the Commonwealth's acts and omissions and his injuries. After all, despite his ongoing guilt he had pursued other claims in respect of those injuries which required him to explain and discuss what he had experienced in the collision and the consequences for his health.
It is not whether Mr Werner ought to have sought legal advice in relation to any rights he may have had against the Commonwealth, which has to be considered. But whether he ought to have become aware of the factual matters identified in s 60I at the relevant time: Shaw at [70].
In cross-examination Mr Werner volunteered that Dr Furze had advised him to seek legal advice, as well as treatment for his PTSD. Having earlier retained Mr Forster, but not pursued a claim when he had not been diagnosed to be suffering PTSD, having then learnt that he did suffer chronic PTSD and the injuries which he claimed his involvement in the collision had contributed to having succeeded, it follows that Mr Werner ought in 2006 to have become aware of the connection between his injuries and the acts of negligence he acknowledged in his evidence he was aware of, even before then.
Mr Werner also agreed there was no reason why he could not then have taken legal advice. In 2015 he agreed to assist his friend Mr Stringer to pursue his own claims against the Commonwealth for what he had suffered as a result of his experiences during the collision, with the assistance of his lawyers. But not even when Mr Werner began suffering panic attacks for which he sought help in 2018, did he pursue his own claim.
The evidence does not establish that this was the result of Mr Werner's injuries. Dr Hopwood had explained that Mr Werner's guilt over his perceived potential role in the collision was an emotion which did not on its own constitute a psychiatric diagnosis. Dr Furze did not suggest otherwise and advised him to pursue legal advice. The evidence thus does not establish that his failure to do so was the result of his PTSD.
The conclusion that Mr Werner ought in 2006 to have become aware of the connection between his heart disease, heart attacks, strokes, PTSD, the collision and the acts and omissions which caused them, is thus unavoidable.
Even if he did not then become aware of this, having agreed in 2015 to assist Mr Stringer in his claims against the Commonwealth for the injuries he suffered as a result of his involvement in the collision, the conclusion that Mr Werner ought at least then to have had an awareness of the connection between the Commonwealth's acts and omissions and the injuries he had suffered as the result of that collision, given all that preceded him agreeing to provide his assistance, is also unavoidable.

Is it just and reasonable to grant the extension?

Even if I am wrong in these conclusions, I have reservations about the exercise of the s 60G discretion in all the circumstances that I have discussed.
It must be accepted that Mr Werner's ongoing and seemingly unwarranted feelings of guilt, despite what he had learned about the Royal Commissions' findings from Mr Frame and his books, have been very much to his detriment.
Mr Werner's case on prejudice rested on the existence of plenty of records about the collision and other relevant matters. It was contended to be unfair for the Commonwealth to rely on the conditions caused by its acts of negligence, his memory problems having been caused by his PTSD, consistent with having suffered dissociative episodes to which Dr Hopwood had referred in 2000.
For its part the Commonwealth properly accepted that it was not prejudiced by the delay in proving the events of the accident, it having conceded breach. But it relied on delay prejudicing its case on matters which are in issue, going as they do to causation and quantum. Given the passage of time and its impact on the evidence Mr Werner could give and about which he would have to be examined, including in relation to his claims about the sale of his business in 2001, the existence of such prejudice would be accepted.
It was also acknowledged that this difficulty adversely affected Mr Werner, given the onus which fell on him to prove his case. But it was submitted also to prejudice the Commonwealth's ability to pursue a defence, which had to be taken into account in the exercise of the Court's discretion.
In Winston Harrison J referred at [32] to the discretion having to be exercised in the context of the rationales for the existence of limitation periods citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 551. There at 552-553 McHugh J discussed the four broad rationales to be (i) relevant evidence is likely to be lost with the passage of time; (ii) it is oppressive to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed; (iii) defendants, including public institutions, should be able to utilise their resources on the basis that claims can no longer be made against them; and (iv) there is a public interest in disputes being settled as quickly as possible. Further McHugh J stated at 551: "For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'."
In Winston Harrison J also noted that assessment of what is just and reasonable requires consideration of the interests of both parties and has to be considered having regard to all of the circumstances dispassionately and objectively and is a matter about which minds may differ: at [57]. There what was in issue principally involved an assessment of the Commonwealth's legal liability by reference to "extensive, not to say exhaustive, accounts" of what had occurred in the collision there in issue in 1969 and what should have been done to avoid that collision: at [58].
Here what is really in issue appears to revolve around decisions Mr Werner made before 2001 and resulting questions of causation in relation to the damages he claims he suffered when he sold his business. His evidence about this was somewhat contradictory, as I have explained. His wife appears to have been closely involved in his decisions but, unfortunately, she is no longer alive to give evidence and Mr Werner's memory is unreliable.
That is a considerably different situation to what arose for determination in Winston and in my view makes difficult the conclusion that it would be just and reasonable to grant the extension so belatedly sought in this case, given the considerations discussed in Brisbane South Regional Health Authority v Taylor.

Costs

The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event, which in this case is an order that Mr Werner bear the Commonwealth's costs as agreed or assessed: r 42.1.
I will hear the parties, if they wish to be heard on costs, in which event they should approach promptly.

Orders

For these reasons I order that the leave Mr Werner seeks is refused and his motion dismissed.

Amendments 15 December 2022 - (No 2) added to title 30 August 2023 - Coversheet - corrected representation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2023

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