Brandon v Commonwealth of Australia [1999] FCA 1284

FEDERAL COURT OF AUSTRALIA

Brandon v Commonwealth of Australia [1999] FCA 1284 MARK JOHN BRANDON v COMMONWEALTH OF AUSTRALIA

NG 374 OF 1994

JUDGE: WHITLAM J

DATE: 15 SEPTEMBER 1999

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 374 OF 1994

BETWEEN: MARK JOHN BRANDON

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: WHITLAM J

DATE OF ORDER: 15 SEPTEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The limitation period for the causes of action in the statement of claim is extended until 21 June 1994. 2. Paragraphs 6 and 7 of the amended defence are struck out. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 374 OF 1994

BETWEEN: MARK JOHN BRANDON

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: WHITLAM J

DATE: 15 SEPTEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an order of extension under s 60G of the Limitation Act 1969 (NSW) ("the Act"). 2 The applicant, Mark Brandon, is a sailor in the Australian Navy ("the Navy"). He claims to have causes of action against the respondent ("the Commonwealth"), founded on negligence and breach of duty, for damages for personal injury. Mr Brandon's claim relates to injuries he suffered in an accident at sea on the vessel HMAS Stalwart on 22 October 1985. The limitation period for these causes of action expired six years later on 22 October 1991. 3 Section 60I(1) of the Act relevantly provides: "60I(1) A court may not make an order under section 60G or . . . unless it is satisfied that: (a) the plaintiff: (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 (b) the application is made within 3 years after the plaintiff because aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii)." 4 Mr Brandon commenced this action on 20 June 1994, and an application for extension of the limitation period was filed on 24 June 1994. It is not in dispute for the purposes of this application that, apart from the Commonwealth's defence founded on the expiration of the limitation period, evidence is available to establish the causes of action claimed by Mr Brandon. His counsel submit that Mr Brandon was unaware of the "nature and extent" of his personal injury within the meaning of para (a)(ii) of s 60I(1) at 22 October 1991, or at an earlier time when proceedings might reasonably have been instituted, and that this application was made within three years after he became aware of such matters. Affidavits made by Mr Brandon and his solicitor, William Szekely, have been read in support of the application. Mr Brandon has been extensively cross-examined. Two persons involved in his treatment have also given evidence, a Darwin psychologist Mr Ted Milliken and a Sydney psychiatrist Dr Duncan Wallace. His counsel also tendered copies of material from the Navy's medical records relating to Mr Brandon together with reports from three other psychiatrists, Dr R D Wu, Dr Len Marinovich and Dr Robert D Lewin. These documents were admitted in evidence, as were additional records tendered by counsel for the Commonwealth, most of which related to claims lodged by Mr Brandon with the Department of Veterans' Affairs ("DVA"). 5 Mr Brandon was born on 1 June 1963. He joined the Navy on 7 April 1981, is married with three children, has been promoted through the ranks and is now a Chief Petty Officer. He was based in Sydney at the time of the accident on HMAS Stalwart. This was by all accounts an horrific incident involving a gas leak as a result of which three sailors died, their bodies decomposing, and many others were seriously injured. Mr Brandon participated in the rescue attempts and witnessed the unfolding drama in much of its gory detail over several hours. It was a true disaster and Mr Brandon was in the thick of it. Mr Brandon's statement of claim lists particulars of many injuries and disabilities. However, for present purposes, attention may be confined to his claims to be suffering from post traumatic stress disorder ("PTSD") and organic brain damage as a result of exposure to hydrogen sulphide gas. 6 I do not understand counsel for the Commonwealth to contest the claim of PTSD. Indeed, he tendered the definition of PTSD in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") of the American Psychiatric Association. This clinical disorder is there defined according to specific stressor and symptom criteria. The two part stressor criterion includes both the victim's perception and response. It states: "A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others (2) the person's response involved intense fear, helplessness or horror." There is not the slightest doubt that Mr Brandon was exposed to such a traumatic event aboard HMAS Stalwart on 22 October 1985. 7 So far as Mr Brandon's symptoms of PTSD are concerned, the Commonwealth relies on the fact that his PTSD was diagnosed by a psychiatrist as early as January 1987, well before the expiration of the limitation period. This fact necessitates careful consideration of the evidence concerning his gradual recognition of his disorder. 8 After the Stalwart incident Mr Brandon says that he was irritable and became easily upset. He "bottled up" his feelings, but he was occasionally violent towards his wife. This caused him great shame. He suffered headaches, for which he took non-prescription medication, and he felt under stress. He frequently drank alcohol to excess. In April 1986 Mr Brandon claimed compensation from the Commonwealth for hydrogen sulphide poisoning, headaches and dizziness. He also stated in support of a claim for a service pension that he suffered "nervous phobia". In May 1986 he signed a form, later lodged with the DVA, in which he claimed to have suffered "brain damage" as a result of the accident. In July 1986 a delegate of the Commissioner for Employees Compensation determined that he was entitled to compensation for hydrogen sulphide poisoning. Mr Brandon's pension claim was also apparently lodged in July 1986. His medical records show that he consulted a Navy doctor about headaches in August 1996. The doctor's note records Mr Brandon as suffering headaches "on and off for several years". The doctor appears to have thought there was a nasal problem and referred Mr Brandon to an ear, nose and throat specialist, who made a tentative diagnosis of nasal inflammation. The specialist took a different history about the headaches to the effect that they had developed "while at sea in the last few weeks". In any event, Mr Brandon received no treatment for his headaches and continued his self-medication. 9 The processing of his pension claim required Mr Brandon in November 1986 to complete a lifestyle questionnaire and to be medically examined. He was referred for assessment by a neurophysician and a psychiatrist, whom he saw in January 1987. The notes of their examinations and their reports are in evidence. The psychiatrist recorded many symptoms that correspond with criteria B, C and D in the DSM-IV definition and diagnosed post traumatic stress reaction. Subsequently a medical officer attributed an impairment rating of twenty per cent to this disability. Mr Brandon was granted a pension at thirty per cent of the general rate on account of hydrogen sulphide intoxication, post traumatic stress reaction and migraine. The DVA sent him a copy of this decision on 23 February 1987. 10 In 1987 Mr Brandon was posted to HMAS Cerberus, a base at Western Port in Victoria. He continued to suffer persistent symptoms of increased arousal. Impairment in his memory and concentration caused him problems with the courses of instruction he was pursuing. Through a mutual interest in soccer at the base, he met Commander Stuart Whitehead, the medical officer-in-charge of the Navy in Victoria. Mr Brandon's wife confided in Commander Whitehead about her husband's problems. After a couple of interviews, Commander Whitehead persuaded him to see two Melbourne specialists in February 1989, a neurologist Dr Peter Bladin and a psychiatrist Dr Bob Myers. Mr Brandon told Dr Bladin that he thought the hydrogen sulphide had affected his brain. In March 1989 Dr Bladin reported that there was no evidence of organic brain damage. Over the next few months Mr Brandon saw Dr Myers who treated him for PTSD, including an admission to the base hospital as a day patient for interview using amytal. In April 1989 Mr Brandon's medical fitness was downgraded by the Navy to category 5. Dr Myers later assessed him as making a "consistent and significant recovery". In June 1989 the Navy decided that Mr Brandon was fit to undertake a technical course at the training establishment HMAS Nirimba in Sydney. His restricted medical classification was changed to category 4. A signed "member statement" dated 22 June 1989 in Mr Brandon's own handwriting in his medical records states: "I feel as a member the treatment I have received within Cerberus over the past 6 months has been first class. I first hit the problem in early 1986 and finally I have been lucky to find a group of professional personnel whom [sic] have helped me overcome this problem for which I am grateful. I am aware of what the next steps are on Cat Nom change from 5 to 4 with approval of the [Medical] Board and as a member I am happy with this." 11 Mr Brandon was then posted to HMAS Nirimba. On 6 October 1989 he was reviewed by a Sydney psychiatrist, Dr Peter Wurth. The doctor reported that Mr Brandon had residual PTSD which had improved markedly with treatment by Dr Myers. Dr Wurth gave him an address to obtain a relaxation tape and made no plans to follow him up. The doctor saw no problems with Mr Brandon's reclassification to category 1 nor with his proposed employment on a patrol boat. In December 1989 his medical classification was restored to category 1, and in about May 1990 Mr Brandon was posted to HMAS Wollongong, a patrol boat based in Darwin. 12 The medical records in evidence do not show any treatment during his service on HMAS Wollongong. Mr Brandon said that he continued to have mood swings and suffer stress, but he appears to have kept his reactions fairly well under control with the aid of occasional analgesics. He said that in 1990 he started to have nightmares about the Stalwart incident. Such repeated re-experiencing of the traumatic event is, according to the DSM-IV definition, a hallmark feature of PTSD. 13 Just before Christmas 1993 Mr Brandon was transferred to HMAS Coonawarra, the Navy command post in Darwin. He said that, not long afterwards, whilst on duty in the workshop he smelt what he thought was hydrogen sulphide, and he became extremely distressed. His wife suggested he seek help. On 3 February 1994 he consulted the base's senior medical officer, Lieutenant Stirling Lee, who referred him to Mr Milliken. Mr Brandon saw Mr Milliken for the first time on 15 February 1994 and continued to see him for the next two years. He said that it was only after he came under the care of Mr Milliken that he realized he had a psychiatric disorder which "would be with me for the rest of my life." 14 At HMAS Coonawarra Mr Brandon met another Stalwart victim, Chief Petty Officer Stephen Callaghan, who suggested that he should seek legal advice and recommended his solicitor, Mr Szekely. He then telephoned Mr Szekely and spoke to him for the first time on 25 February 1994. Mr Brandon subsequently prepared a statement for Mr Szekely which he dated 13 April 1994. He said that he took over a month to prepare this statement. Mr Brandon then took several weeks leave so as to concentrate on a program of therapy under Mr Milliken 15 Mr Szekely was formally retained in May 1994. Mr Brandon visited Sydney on 24 June 1994, where he met Mr Szekely for the first time and was examined by Dr Wu. Dr Wu assessed Mr Brandon as having significant brain damage and the "concurrent existence" of PTSD. The doctor reported that the prognosis for his brain damage was poor. 16 Mr Brandon returned to Darwin. Mr Milliken was also concerned that Mr Brandon had organic brain damage from cerebral "anoxia". Dr Lee referred Mr Brandon for review of his neurological symptoms to Dr Dale Fisher, whom he saw for the first time on 27 June 1994 and who arranged radiological investigations. On 19 July 1994 he was examined by Dr Wallace who was visiting Darwin on service with the Naval Reserve. Dr Wallace considered that there was no doubt Mr Brandon was suffering PTSD as a result of the Stalwart incident. Dr Wallace reported that the behaviour therapy and supportive psychotherapy he was receiving from Mr Milliken were appropriate and endorsed his continued management in that way. However, Dr Wallace said that Mr Milliken's conclusion about brain damage was not correct and referred to the neuropsychological assessment arranged by Dr Bladin. Dr Wallace suggested any impairment was due to his PTSD. The Navy then classified Mr Brandon as unfit for sea service and medically downgraded him to category 7. 17 Dr Lee next referred Mr Brandon to Dr Marinovich, who saw him for the first time on 5 September 1994. He remained under Dr Marinovich's care for over a year, including periods of admission to Darwin Private Hospital for drug therapy. Dr Marinovich reported to Mr Szekely in October 1994 that there was no evidence of brain damage. 18 Meanwhile, on 30 May 1994, Mr Brandon had lodged a claim for an increase in his service pension and for acceptance of brain damage as a service disability. On 19 December 1994 a delegate of the Repatriation Commission accepted "the label" of PTSD for Mr Brandon's symptoms and increased his pension to sixty per cent of the general rate. 19 Mr Brandon was periodically "re-surveyed" by Navy medical boards. He was re-classified as category 5 in October 1995. In March 1996 Mr Brandon stopped taking medication and concluded his treatment by outside specialists. He was later assessed by Navy psychologists, first in June 1996, and then in October 1996, when he was re-classified category 1. Mr Brandon returned to sea and, in November 1996, was posted to the patrol boat HMAS Geelong in Darwin. 20 Against that background I turn to consider Mr Brandon's case for an extension of the limitation period. He acknowledged that by 1987 he knew victims of the Stalwart incident were suing the Commonwealth. He "ought to have become aware" by January 1987 that he had been diagnosed as suffering a post traumatic stress reaction. However, Mr Brandon said that he did not know or believe that he had a psychiatric illness until he came under the care of Mr Milliken. Counsel for the Commonwealth cross-examined him vigorously on this question. In particular, it was put to him that the seriousness of his condition must have been evident to him in 1989 when he required treatment and was placed in a medically restricted category by the Navy. Mr Brandon said that he did not believe bringing an action was warranted at that time. He acknowledged that he may have been naive, but that he thought that his problems would go away. That optimistic view is confirmed in the treating doctors' notes at the time and, most significantly in my view, it is reflected in the tone of his contemporaneous "member's statement". 21 A person suffering PTSD is mentally ill. To a man like Mr Brandon who, according to the Navy's records, left school at fifteen years of age and who has since qualified as a fitter and turner, that may sound like a shocking statement. The evidence of Mr Milliken and Dr Wallace was helpful in explaining the nature of PTSD. The expression of the disorder can vary according to life stresses. Treatment is problematical and tends to be palliative rather than curative. Symptoms may abate. Individuals frequently use tactics of avoidance and denial to manage. The awareness of which s 60I(1) of the Act speaks and the insight required for effective clinical treatment may not be the same thing. Be that as it may, in my view, Mr Brandon's knowledge of his pension entitlement and of the label placed on his disability does not mean that he must be taken to know, or that he ought to have known, of the nature of his injury. As Mr Milliken explained, he did not see the "linkage" between his PTSD and "the behaviour which he wanted to change". 22 The long-term nature of his injury was dramatically illustrated by the symptoms Mr Brandon experienced in 1994. These were described by Mr Milliken. In cross-examination, it was suggested to Mr Brandon that he deliberately invented his story about believing that he smelt gas at HMAS Connawarra so as to create a "false crisis" which would justify him seeking assistance at that time. Mr Brandon denied that suggestion, and I accept his denial. Counsel for the Commonwealth point to the absence of any mention of such an incident in Dr Lee's referral note to Mr Milliken. (Indeed, it is my impression that Mr Milliken and Dr Wallace were required for cross-examination primarily so that counsel might explore their history taking.) I find nothing suspicious in the circumstances that the incident was referred to in Mr Brandon's subsequent statement for his solicitor and that, according to their notes, it was later mentioned when he saw Dr Wallace and Dr Marinovich. There is no need for corroboration of such a single instance of increased arousal, when his many presenting symptoms were obviously subjected to thorough clinical scrutiny. Mr Brandon explains in a perfectly understandable way why it was that he sought both medical and legal advice in February 1994. 23 In my opinion, Mr Brandon comfortably passes through what the High Court called "the s 60I(1) gateway": Harris Commercial Minerals Ltd (1996) 186 CLR 1 at 14. This threshold issue is complicated by the question of "top up" or incremental knowledge referred to by Handley JA in Gladesville RSL Club Ltd v Bartsch (1998) 44 NSWLR 674 at 678. Nonetheless, I am satisfied that the consequences of Mr Brandon's injury are not of a kind that he expected to occur. Three years before he filed the present application he neither knew, nor ought he to have known, that what he suffered from was a permanent psychiatric disorder that required ongoing treatment. By itself, the label PTSD is uninformative and his treatment in 1989 conveyed to him, as it would to a reasonable man, that his condition was a transitory episode from which he should recover. The symptoms that continued to manifest themselves, including irritability and despair, would not, in the absence of appropriate advice, alter that expectation. It follows that Mr Brandon neither knew or ought to have known, the extent of the injury. I am satisfied that he did not become aware of those matters until soon after he first saw Mr Milliken in February 1994. 24 The nature of the discretion under s60G of the Act was specifically dealt with by the New South Wales Court of Appeal in Commonwealth v McLean (28 July 1997, unreported). Counsel for the Commonwealth relies particularly on what the Court said in that case of the approach required to the exercise of that discretion in the light of the decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 25 The question of prejudice to a defendant is now recognized as the central issue in an application for extension of a limitation period. Long delay raises a presumption of prejudice. Mr Brandon bears the onus of showing that the Commonwealth will not be significantly prejudiced in the sense that it will not be deprived of the chance of a fair trial. 26 The Commonwealth has not chosen to adduce any evidence to establish actual prejudice. The material tendered by the Commonwealth was designed to show Mr Brandon's subjective knowledge. What it did show in the event was the significant resources available to the Commonwealth in effectively defending this claim. Although liability has not been admitted, no part of the submission by counsel for the Commonwealth touched on that question. But he asserts a prejudice in the likely loss of relevant evidence on the important issue of the quantification of damages. The disruption to Mr Brandon's life is vital to his case, and the component parts of PTSD are mostly subjective complaints voiced by him. Some witnesses will be missing. Dr Myers is evidently dead. But Mr Brandon has lived the whole of his adult life in the cocoon of the Navy and it has access to all the details that exist of his medical care. Mr Brandon's wife will obviously be an important witness. The Commonwealth should be well placed to cross-examine her. So far as other sailors giving evidence are concerned, the Commonwealth has comprehensive details of Mr Brandon's postings and, in addition, if desired, it can adduce evidence of his work capacity at various times. The Navy's records are as formidable as those to which any defendant could hope to have to resort. I am satisfied that any prejudice that the Commonwealth may suffer is not significant prejudice and that Mr Brandon has made out a case for the exercise of the discretion in his favour. 27 For the sake of completeness, I should add that counsel for Mr Brandon also press for an order of extension under s 58 of the Act in respect of a claim for organic brain damage. I pause, therefore, simply to say that, in my opinion, their client is quite unable to show a viable cause of action in respect of such an injury. Accordingly, he has not made out the preconditions required to give rise to consideration of the exercise of any discretion on that basis. 28 The limitation period will be extended to 21 June 1994, and the relevant pleas raised in paragraphs 6 and 7 of the Commonwealth's amended defence will be struck out. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate: Dated: 15 September 1999

Counsel for the applicant: B R McLintock SC with M L Brabazon

Solicitors for the applicant: Szekely & Associates

Counsel for the respondent: M J Joseph SC

Solicitor for the respondent: Australian Government Solicitor

Dates of hearing: 6-9 and 16 July 1998

Date of judgment: 15 September 1999