This approach was quoted with approval by Santow JA (Handley JA agreeing) in Commonwealth of Australia v Smith [2005] NSWCA 478 at [103]; cf [182]-[187].
[32] Use of the label 'constructive knowledge' must be undertaken with care, so as not to fall into patterns of thought relating to a 'reasonable person' test. Further, there is a risk that the label may distract attention from the purpose of the judgment being formed. Indeed, even to ask what steps it was 'reasonable' for the plaintiff to take provides little guidance as to the criteria by which the judgment is to be made. Those criteria will vary, depending on the particular facet of knowledge, identified in par (a), of which it is said that the plaintiff ought to have become aware, at a date more than three years prior to the commencement of the proceedings. Only when the relevant fact has been identified, is it possible to consider what steps might have been taken in order to acquire knowledge of that fact. Once the possible steps have been identified, consideration may need to be given as to the likelihood that such steps, if taken, would have resulted in the plaintiff acquiring knowledge of the particular fact. Finally, it may be necessary to distinguish the purpose of the inquiry from the purpose for which the step might have been taken. In relation to a step involving a consultation with a medical practitioner, the purpose of the consultation would usually be to obtain appropriate medical treatment. Whether such treatment was obtained or not may have legal consequences, for example in relation to mitigation of loss. However, for present purposes the legal consequence will be acquisition of relevant knowledge, being a result somewhat removed from the usual purpose of obtaining medical treatment."
[49] Later, Basten JA went on to say (at [73]):
[73] There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne / Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result, but that, where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome…"
27 Studdert J concluded that different outcomes in Smith and Shaw is explicable on the facts". As was that of Studdert J, my task "is to determine the present application on its particular facts having regard to the statements of legal principle expressed…in Smith and…in Shaw": ibid at [51].
28 The Commonwealth submits that the symptoms described by the plaintiff in his affidavit were such that any reasonable person in his position would have sought medical help and, when the symptoms were described, it is contended that medical help would have led to a diagnosis of PTSD and the related conditions. (I note, by the way, that this appears to concede that the plaintiff did indeed suffer from PTSD and had done so for a long time.) In putting the submission in this way, I have quoted the Commonwealth's written submissions but, as is clear, the question is not what a reasonable person in the plaintiff's position would have done but what was reasonable for the plaintiff to have done in the circumstances. More precisely, I think, since the question is what the plaintiff "ought to have known", the question is what the plaintiff ought to have done. Thus, objectively speaking, it may have been reasonable, even wise, for him to seek medical advice, but it also may have been reasonable for him not to have done so. If the plaintiff acted reasonably in not taking steps that might have resulted in acquiring the relevant knowledge it is not possible to say that he ought to have acquired that knowledge. It is also necessary to consider the effect on him of his illness, one of the features of which is, to use a lay language, denial of unwellness. It might as well be noted now that, at all events, I have concluded that the plaintiff's problems (to use a neutral term) were not such as to lead to the conclusion that he ought to have sought medical help of a kind likely to have led to a diagnosis of PTSD or, for that matter, any other mental illness, quite apart from the effects of the condition on his psyche.
29 It is therefore necessary to return the plaintiff's account as to what he experienced at the time of the collision and thereafter. (For ease of reading I propose to omit quotation marks but it can be taken that what follows comprises either direct quotations or the substance or effect of the plaintiff's evidence as I understand it.) I have already mentioned the plaintiff's feelings at the time that he cleaned up what he took to be the remains of human brain on the deck. He described how helpless he felt when he watched the later sinking of part of the Voyager. He said that he was helpless, very shocked and very depressed. He described the entire experience as horrifying, traumatic and devastating. He was deeply shocked by the enormous loss of life. The vision of the sinking section of the Voyager and the sight of the bodies in the workboats has remained with him, as vivid in its intensity today as it was on the morning after the collision. He said that the entire experience changed him forever. He resorted to alcohol and to smoking. Whilst on leave following the collision he was continually confronted by images of the disaster that tormented him. He said that he did not know why he was drinking so much but with the benefit of hindsight he said he was trying to find some comfort and divert his thoughts from the horrific vision which he experienced. He found it difficult to get asleep and he said the alcohol helped to drown out the thoughts that otherwise kept him awake and preoccupied. I have already referred to what the plaintiff described as his subconscious resolve to bury himself in his career, to gain promotion and to leave himself as little time as possible to be preoccupied with his upsetting thoughts.
30 I interpolate that, thus far, there is nothing that could have suggested to the plaintiff that he had suffered any psychological injury. It is self evident that horrific or frightening experiences will leave a mark and often a deeply inflicted one. But it is nonsense to suggest that having shocking experiences and recalling them to memory even where doing so is painful, or seeking not to have or dwell on those memories, is a sign of mental illness, let alone that the most reasonable response is to seek medical help. The plaintiff believed, quite reasonably, that his reaction to his experiences was normal. The response of the plaintiff, namely that the best way of dealing with his painful experiences was to concentrate on his work and achieve success in his chosen profession in brief, to get on with his life, was entirely reasonable. After all, the Commonwealth, which was his employer with considerable medical resources devoted to the well-being of its servicemen, took no steps whatever to instigate any medical or paramedical assistance, not even when the condition of PTSD was well understood and the plaintiff was still in its employment with a high degree of responsibility. It is more than a little ironic that it should now press the argument that the plaintiff ought to have known something of which it was either blissfully unaware or in respect of which it declined to make any enquiry.
31 In a sense, of course, the very success that the plaintiff made of his Naval career seemed to deny that anything significant was wrong with him. Moreover, there is no evidence suggesting that, had the plaintiff visited a psychiatrist, in say, the year or two following the collision, he would have obtained any treatment that would have been useful although it is possible that he might have been told of the risk of post-traumatic stress disorder and been made aware of the potential for the development of an illness capable of having a marked effect upon his life. It is clear, however, that the plaintiff did not even consider seeking medical help. As I said, he decided that he was going to get on with his life as best he could. I think that this was a reasonable decision.
32 The reasons for which the plaintiff left the Navy are far from clear. He said that, although outwardly he appeared to be successful, he was not coping with his alcohol consumption or with his personal relationships and that his marriage was disintegrating. These symptoms do not suggest to me that he should have sought medical help. If not coping with personal relationships very well and a disintegrating marriage is a sign of psychiatric illness, then a very large proportion of Australia's population ought to be seeking psychiatric help. Nor, to my mind, is excessive alcohol consumption a medical condition for which it is unreasonable not to seek medical help. It is necessary to put his drinking into context. Although the plaintiff said that he was drinking very heavily (as often as he could), he pointed out that, being in charge of a ship, "You can't be walking around a ship all day at sea with a gin and tonic or a stubby in your hand but, whenever the occasion arose, if we anchored at night or something like that, I would, and as soon as I got ashore, I would be getting into it as well." There is no suggestion that he was affected by alcohol when performing his duties. Of course, some help might be useful, indeed desirable, but I do not think that failure to seek medical assistance, let alone psychiatric assistance, could be regarded as unreasonable. After all, although it is clear that the plaintiff believed that he was drinking to excess, he was part of a culture where heavy drinking was endemic and not only in the Navy. It appears that he was not addicted to alcohol, though he found that drinking helped him to cope with other stressors in his life and that this involved drinking more than he should have done. It seems he may have been an unpleasant drunk. This is a failure of character, not a sign of mental illness.
33 The plaintiff said that he had changed over the years as a result of his experiences in the collision but he did not know what influences were at work on his mind when he decided not to renew his enlistment. As I have said, it is self evident that experiences bring change but that does not mean that these changes involve or are likely to involve mental illness, even if the changes are painful. I would accept that the plaintiff now thinks that his decision to leave the Navy was impulsive and irrational. Indeed it appears so. Furthermore, it may have been made as a result of the post-traumatic stress disorder from which he was probably suffering at the time. But I do not think that it was unreasonable for him not to consider that he should see a doctor about it.
34 The plaintiff said that, although he succeeded well in the Navy, when he looked back his behaviour at various times was odd and he had been very anxious about some things which he described. He said he felt he was a loner and found it difficult to mix and socialise with his fellow officers very often, that he was happy for his ship to work on its own rather than in the company of other ships, that he worked fiercely on his fitness but at the same time consumed substantial amounts of alcohol and constantly smoked cigarettes. The plaintiff felt his superiors were not supportive of him but had no adequate explanation for this. He felt that he was always right and that everybody else was wrong which, in hindsight, he saw was not the case.
35 I appreciate that, in some circles, a desire to be solitary is seen as aberrant. I think it is perfectly normal, sometimes essential. The conflict between the desire for physical fitness and the consumption of substantial amounts of alcohol and smoking cigarettes merely reflects the human condition: "Man is an embodied paradox, a bundle of contradictions". I do not see these things as signs likely to alert a reasonable person to a need to consult a doctor. Vague feelings about the lack of support from superiors are common, whilst the feeling that one is always right and everybody else is wrong is far too widespread a character trait to be seen a sign of mental illness.
36 The plaintiff said that over the years he had continually been subject to nightmares and distressing thoughts of the night of the collision, particularly images of the bow of the Voyager passing him, of the brain matter found on the flight deck, the general scene and body pieces lying all over the place. He said that he thinks about them when in bed and it builds up in his mind. The plaintiff said in evidence that he would wake in the middle of the night in a sweat after nightmares about the collision and that this continued for some years though as time moved on it dissipated to a degree. He said that it was serious for several years or so or more. He was very concerned about the distressing thoughts of the collision and the nightmares but he accepted them as natural in light of what he had gone through. He found it difficult to sleep. He said that drinking plentifully of alcohol before bed tended to help him to get several hours of reasonably solid sleep. He "often" (I very much doubt this frequency) went so far as hitting his head against the bed head hoping to knock himself out in order to sleep but I am not sure when this happened. He has flashbacks of the collision and its aftermath at least weekly.
37 It is not at all surprising that someone who had experienced the sights described by the plaintiff would be distressed at their return and, indeed, at their continuing return. But it is not suggested that there is any treatment available to him to expunge these memories and, in the very nature of things, they must distress anyone of ordinary humanity. Their frequent repetition, of course, is one of the symptoms of post traumatic stress disorder but I do not think that it was unreasonable for the plaintiff to put up with them as distinct from thinking that he should seek medical help in respect of them, let alone that he might have thought that he was suffering from a mental illness. It may be that many persons would have sought medical help for sleeplessness with a view to obtaining sleep medication but that the plaintiff did not do so cannot be considered to be unreasonable. Given his responsibilities, it would have been unwise for him to have taken any such medication whilst at sea, for all that using alcohol to sleep was also unwise. Nor was it suggested to him that he should have done so. Hitting his head in frustration is certainly a sign of desperation but, again, I do not think that he ought to have sought medical assistance because of his sleeplessness, though it would have been reasonable for him to do so. Had he done so, it is doubtful that a diagnosis of PTSD would have been made: in all likelihood he would just have been given a prescription for sleeping pills and told to cut down on the drinking.
38 The plaintiff said that, while in the Navy, he noticed that he would get panicky in confined spaces such as gas chambers and when wearing restrictive clothing such as fire fighting gear. He particularly noticed this whilst undertaking a nuclear and biological defence course during his officer training in England. He had done similar exercises prior to the collision but had not felt that way. He said that he did not make the connection between his experiences in the collision and this newly developed feeling of panic but has done so since he received the counselling and psychiatric help to which I have referred. The plaintiff said that he noticed that in the years since the collision he has a problem with heights in that he feels nervous in skyscrapers, has had nightmares of an aircraft crashing with him aboard and tends to feel anxious amongst a crowd of people, preferring going to a cinema for instance when there are only a few people present rather than a crowd. Many people also have these experiences without associating them with any mental illness or the need to get medical help. The plaintiff has also described difficulties in his relationships with his children and his wife, on one occasion while affected by alcohol punching a hole in the wall during an argument with his wife. Again, whilst these problems might have developed from or be part of this post traumatic stress disorder, their presence or persistence would not suggest to the ordinary person that he or she needed medical help and did not suggest that to the plaintiff.
39 I have already mentioned the history taken by Mr Wilks that refers to that through the period from 1964 to 2001 he was troubled by alcohol inspired crying and had suicidal thoughts of shooting himself every one to two months. He said in evidence that these thoughts occurred before 1998 on dozens of occasions. Not surprisingly, the Commonwealth places a great deal of emphasis upon the suicidal thoughts. No doubt they are signs of anguish and unhappiness. Yet it is important to note that the plaintiff never made any attempt to commit suicide and that he dealt in his own way with those thoughts, namely, he decided that he would not fulfil them. I do not think that this was unreasonable.
40 The Commonwealth relies on a graph drawn by the plaintiff during his session with Mr Wilks which shows an apparently steady rise in the severity of his symptoms from 1964 on with spikes at 1964, the time of the collision, 1970 when men under his command were killed on the patrol boat and in 1982 at or about the time he left the Navy. This shows that the plaintiff's symptoms were apparently more severe in the years leading up to 2000 than they were (as indicated by the spikes) either at the time of the collision or in 1970 and even than in 1982 when he left the Navy. Even accepting that this is a fair interpretation of the graph (a matter about which I am sceptical), it is of little utility unless the actual level of intensity of the symptoms is understood. I am quite satisfied that they did not reach the stage (until perhaps eighteen months or so before 2000) at which it might reasonably be said that he ought to have sought medical help, for all that his feelings of emotional unwellness were growing more severe. At all events, I do not think that it is fair to treat the graph as anything more than a general indication of increasing anxiety. Furthermore, the plaintiff saw Mr Wilks in September 2001 at a time when he was very ill indeed and had already gained some insight into the possible significance of his troubled feelings and problems, which I am quite sure that he had not considered in that way when they occurred. He told Mr Wilks that he did not understand the feelings that he had had until about September 2000 when he saw a counsellor, I think Mr Langford.
41 The Commonwealth also points to the fact that the plaintiff saw a counsellor relating to the issues concerning his wife, contending that he had sufficient insight to see the need for counselling in relation to these matters and that it was therefore inconceivable that he would not have had the same insight in relation to his much more severe symptoms which he ascribes to the collision. I think this is a non sequitur. The Commonwealth submits that the only rational way of explaining this "is a more general reluctance to seek medical advice, either because the plaintiff was preferring to turn a blind eye to the possibility of psychiatric illness or because of a fear that the treatment would be worse than the illness." I reject these as explanations for the plaintiff not seeking medical advice. I do not believe that he ever thought that he had a psychiatric illness nor do I think that he was frightened of any medical advice that he might get. I think that he decided that he thought - perhaps mistakenly - he could deal with these problems himself by putting up with them and getting on with his life.
42 Of course, whilst it is relatively easy to dismiss the individual symptoms described by the plaintiff as not suggesting that he should have realised he had a severe psychological problem requiring medical help, it is necessary that the whole picture be considered. As unpleasant as his problems undoubtedly were, he was not only coping but coping successfully with demanding and responsible work, it was work moreover that required him to exercise leadership in the enclosed society of a warship. His ability to do so is powerful evidence, not only of his competence but his ability to cope - as it were, not to let his problems get the better of him - by achieving success in his work and retaining a high degree of physical fitness. Although, in hindsight, this may have been unwise - to take up the point made by Dr Likely, his ability to cope whilst on the relatively gentle descending slope was of no assistance when he hit, without warning, the edge of the cliff. There was no reason why he should have thought that, taking the approach to his problems that he did, such a serious, indeed catastrophic outcome as ultimately occurred was a risk.
43 Considering realistically the whole of plaintiff's history over many years in the context of a successful Naval career and responsible and skilled employment as a civilian, bearing in mind all of his problems over that period, I am satisfied that it was reasonable for him not to have sought medical or other assistance of a kind that was likely to have revealed his underlying psychiatric condition, a fortiori, if his underlying condition is taken into account. I reiterate that, of course, it would have been reasonable, perhaps wise, for him to seek some medical help. But I do not consider that he ought to have done so.
44 It follows that, in my view, the application is made within three years after the plaintiff became aware (or ought to have become aware) of the matters specified in paragraph 60G(1)(a) of the Limitation Act.