Reported Decision : (2006) Aust Torts Reports 81-856 New South Wales Court of Appeal CITATION: PEARCE v COMMONWEALTH OF AUSTRALIA [2006] NSWCA 210 HEARING DATE(S): 22 June 2006 JUDGMENT DATE: 1 August 2006 JUDGMENT OF: Handley JA at 1; Ipp JA at 2; Basten JA at 3 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and HMAS Voyager in 1964 – urged by wife to seek help – whether applicant knew he suffered a personal injury – when he ought to have become aware – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss60I(1)(a) and (b) and 60G LEGISLATION CITED: Limitation Act 1969 (NSW), ss 60G, 60I Limitation of Actions Act 1958 (Vic), s 3 Blunden v Commonwealth (2003) 218 CLR 330 Commonwealth of Australia v Shaw [2006] NSWCA 209 CASES CITED: King v Goussetis (1986) 5 NSWLR 89 Pearce v Commonwealth of Australia [2005] NSWSC 359 Stingel v Clark [2006] HCA 37 Wade v Burns (1966) 115 CLR 537 PARTIES: Russell Henry Pearce (Claimant) Commonwealth of Australia (Opponent) FILE NUMBER(S): CA 40421/05 COUNSEL: Mr I. Roberts SC/Mr J.L. Sharpe (Claimant) Mr C. Barry QC/Mr D. Brogan (Opponent) SOLICITORS: Hollows Lawyers (Claimant) Blake Dawson Waldron (Opponent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 20848/01 LOWER COURT JUDICIAL OFFICER: Cooper AJ LOWER COURT DATE OF DECISION: 5 May 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Pearce v Commonwealth of Australia [2005] NSWSC 359 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40421/05 SC 20848/01 HANDLEY JA IPP JA BASTEN JA 1 August 2006 PEARCE v COMMONWEALTH OF AUSTRALIA Judgment 1 HANDLEY JA: I agree with Basten JA. 2 IPP JA: I agree with Basten JA. 3 BASTEN JA: Mr Russell Henry Pearce ("the plaintiff") is now 65 years of age. On 10 February 1964 he was 22 years of age and was a member of the crew of HMAS Melbourne, with the rating Engineering Mechanic. On that day, the HMAS Melbourne collided with the HMAS Voyager on the high seas off Jervis Bay. The Voyager sank as a result of the collision. 4 On 24 October 2001, some 37 years after the collision, the plaintiff commenced proceedings against the Commonwealth seeking damages for psychiatric injury suffered as a result of the collision. The particulars of injury identified in paragraph 6 of the statement of claim included a mixture of physical and psychological symptoms and psychiatric disorders. It is sufficient for present purposes to note that particular (g) alleged "post-traumatic stress disorder with avoidance symptoms and arousal symptoms". 5 On the same day, the plaintiff filed a notice of motion seeking an extension of time within which to commence proceedings, pursuant to various provisions of the Limitation Act 1969 (NSW) ("the Limitation Act") and equivalent legislation in the ACT and Victoria. Only the Limitation Act provisions were relevant in this Court: Blunden v Commonwealth (2003) 218 CLR 330 at [18]. 6 By judgment delivered on 5 May 2005, Cooper AJ, following a hearing in the Common Law Division of this Court, noted that an extension of time was sought pursuant to s 60G of the Limitation Act 1969 (NSW). It is clear from the transcript of the hearing on 12 April 2005 that counsel for the plaintiff relied only upon that provision. Pursuant to a defence filed on 18 October 2002, the Commonwealth asserted that the cause of action alleged in the statement of claim was statute barred, either by reason of the Limitation Act 1985 (ACT), the Limitation Act 1623 (Imp) or the Limitation Act 1969 (NSW). Again, for the purposes of the proceedings below and on appeal, the Commonwealth was content to join argument with the plaintiff on the basis that the relevant power to extend time was that found in s 60G(2) of the Limitation Act (NSW). 7 In order to succeed in his application, the plaintiff had to bring himself within the terms of s 60I of the Limitation Act. Satisfaction of that provision was a precondition to the exercise of the discretionary power to extend time under s 60G: see s 60I(1). Section 60I(1) requires that the Court not make an order extending time unless it is satisfied that the plaintiff did not know of at least one of a number of matters until less than three years before, and ought not to have become aware of those matters more than three years before, the filing of the application. 8 In the present case, the primary judge held that the plaintiff "did not know that personal injury had been suffered by him at the expiration of the limitation period or at any time thereafter, until within three years of making the application": Pearce v Commonwealth of Australia [2005] NSWSC 359 at [43]. Once satisfied that the plaintiff lacked knowledge that a personal injury had been suffered, it followed that he was also unaware, during the relevant period, of the nature and extent of the personal injury and the connection between it and relevant acts or omissions of the Commonwealth, being the factors identified in sub-paragraphs (ii) and (iii). 9 Although the Commonwealth sought leave to cross-appeal in relation to that finding, for the reasons set out below, the finding was justified on the facts. 10 However, his Honour held that in the circumstances, the plaintiff "knew that he had problems" and had been repeatedly urged by his wife "to seek appropriate help": at [52]-[54]. His Honour was satisfied that the plaintiff "ought to have followed his wife's advice at the latest by 1981" (at [55]) and that, had he done so, he would have become aware of the factors set out in par (a): at [64]. The focus of the application for leave to appeal was on that conclusion. 11 His Honour also held that, "even if he had passed this gateway", he had to satisfy the Court that it was "just and reasonable" to extend the period: at [68]. His Honour concluded that such an order would not be just and reasonable: at [69]. 12 The plaintiff also sought to challenge this latter conclusion, on the basis that, if it were not the case that he "ought" to have become aware that he was suffering a relevant injury, then his failure to seek help at an earlier time could not by itself justify a refusal to extend the limitation period. 13 If the plaintiff succeeds on his primary argument, the latter submission may be seen to have merit. The conclusion that an extension would not be just and reasonable was reached on an hypothetical basis, namely that the Court had power to do that which it had just held it did not. Sometimes it may be appropriate for a judge to proceed to consider a further aspect of the case, in case it is held on appeal that he or she was wrong in dismissing a claim. Such a course is often appropriate, for example, in relation to the assessment of damages, in circumstances where a plaintiff has failed on questions of liability. But in such a case, it will not usually be necessary to make an assumption of fact contrary to those which have been found. Where the hypothetical exercise is to be undertaken on a counter-factual basis, great care would need to be observed in identifying the precise premises upon which the further step is undertaken. Otherwise, any conclusion reached may be treated as "anticipatory comments" which might not be adhered to by a tribunal which had not misdirected itself at an earlier stage: cf Wade v Burns (1966) 115 CLR 537 at 555 (Barwick CJ); King v Goussetis (1986) 5 NSWLR 89 at 94-95 (McHugh JA). 14 Finally, the primary judge also addressed submissions in relation to possible prejudice faced by the Commonwealth, which again did not arise because the discretionary power had not been engaged. These matters also went to the exercise of discretion under s 60G(2), but they were matters of a different kind to those relating to the state of knowledge of the plaintiff. Further, his Honour dealt with the submissions that the Commonwealth could not have a fair trial in greater detail at [72]-[80]. He held that, if the plaintiff had otherwise passed the preconditions to exercise of the power contained in s 60I(1), he would have been satisfied that a fair trial was possible. This conclusion was challenged by the Commonwealth and would require further consideration if the plaintiff is successful in overturning the conclusion that the power was not engaged. Relevant legal principles 15 The relevant legal principles have been discussed in Shaw v Commonwealth of Australia, a case heard immediately prior to the present case and involving the same counsel: see Commonwealth of Australia v Shaw [2006] NSWCA 209 at [16]-[41]. The same principles have application in the present case and need not be repeated here. Knowledge of injury 16 The plaintiff gave evidence of the changes in his lifestyle and behaviour, which he attested commenced at the time of the collision. Thus, in his affidavit of 4 March 2002 he stated (at paragraphs 8 and 9): "Prior to the collision I had been a light smoker and a social drinker. I increased my cigarette intake to help relax me. I suffered from a difficulty in getting to sleep, I found that I was preoccupied with thoughts of the collision and I would lie awake in bed just thinking about it. I learned that the best way to get a decent night's sleep was to drink some alcohol before going down to bed. This became a daily habit when I was on shore, and I found myself drinking more and more. Although I could get to sleep better with alcohol, I still tended to wake up on many nights with dreams reliving aspects of the collision. I would be restless and shaking in bed, sweating and very uncomfortable. Within a short time after the collision, I found myself commencing to stutter and stammer … . Also I found handwriting deteriorating in quality, and I became even more anxious." 17 He then referred to his marriage, which took place in 1969 and continued (paragraph 11): "My wife has stuck by me over the years, although particularly during the 1970's there were many times when she threatened to leave. I found I was becoming dependant [sic] upon alcohol to shut out the dreams and memories. I had become intolerant. I seem to have a short fuse and have become aggressive and moody without warning." 18 He also gave evidence that, although his attitude to the Navy changed after the collision, "I had no inkling that I had sustained a psychiatric disorder": paragraph 13. He said that he first consulted a doctor when he was having difficulties breathing and was diagnosed with ischaemic heart disease and pleural plaques on his lungs. He stated that, at that consultation, he had mentioned "the experience with the collision": paragraph 15. In a later affidavit sworn on 3 September 2004, he appeared to date that consultation to August 2000: paragraph 6. 19 In his evidence in-chief, he asserted that the first time he realised he had a "psychological injury" was when he saw Dr S K Law: Tcpt, 12 April 2005, p 13(5). According to Dr Law, the plaintiff consulted him on 7 September 2000: see report of 27 September 2000. 20 Dr Law's report, it may be noted, was only partly supportive. His conclusion was expressed in the following terms: "Mr Pearce has probably suffered from a mild degree of post-traumatic stress disorder (PTSD), as a result of his having gone through the horrendous experience of the collision between HMAS Melbourne and HMAS Voyager . He has suffered from the PTSD symptoms psychologically, but there has been no firm evidence he's been very significantly affected in his domestic situation, work situation, or socio-recreational aspects of daily functioning. No medication is required at this stage. He may need some sessions of supportive counselling in the future, however." 21 The cross-examination of the plaintiff will be referred to below in considering whether, assuming his ignorance of having suffered an injury, he "ought" to have become aware of his condition at an earlier stage. It is sufficient to say for present purposes that the cross-examination did not establish that the plaintiff had actual knowledge of his mental impairment more than three years prior to the commencement of the proceedings. As has been explained in previous cases, the concept of a mental impairment, being a form of "personal injury" for the purposes of the Limitation Act involves a recognisable psychiatric disorder of a kind compensable under the general law. That approach receives support from the reasoning of the High Court in Stingel v Clark [2006] HCA 37, dealing with a case of "post-traumatic stress disorder of delayed onset", in the context of the Limitation of Actions Act 1958 (Vic) which, in s 3(1), contains a definition of "personal injuries" not materially different from that contained in the Limitation Act (NSW). 22 It follows, in my view, that his Honour's finding that the plaintiff did not know that he had suffered a personal injury prior to September 2000 should be upheld. That date was within the period of three years prior to the application for an extension of time and paragraph (a) of s 60I(1) was therefore engaged. The normative element 23 The thrust of the cross-examination of the plaintiff before the primary judge was to show that the plaintiff knew (because he had been told by his wife) that he had a problem and needed help and also knew (because of the inherent nature of the problem) that it was connected with the collision. 24 As is clear from the extracts set out above from his affidavits, the plaintiff associated his increased smoking, drinking, the onset of stammering and difficulties with sleeping from the time of the collision. Further, in describing his circumstances during the 1970s, he stated (paragraph 11): "I continue to have restless and unsettled nights in bed, sweating, tossing and turning, unable to fall asleep, with dreams of and flashbacks to the collision. A number of times over the years I have woken up screaming and been relieved to find that I was not in fact involved in the collision again. I kept having a vision of the front section of the Voyager and the blokes on it screaming for help. In my dream I felt helpless, I couldn't jump in to help because the Melbourne's propellers were still going." 25 There appears to be an element of exaggeration in his affidavit, for which allowance should be made. Thus he stated that "upon expiry of my engagement in 1969 I did not renew it and left the Navy": paragraph 10. However, his original period of engagement commenced in 1958 and ended in 1967. He then renewed it for a period, albeit for a significantly shorter period, which included service with US naval forces and on HMAS Perth in the waters off Vietnam. Nevertheless, it is clear that he suffered significant symptoms, and that the "flashbacks" and dreams were directly related to his experience in the collision. In cross-examination the following exchange took place (Tcpt, 12 April 2005, pp 21-22): Q. I think you said to your barrister when he was asking you some questions before lunch, you were asked some questions about the flashbacks that you had experienced? A. That's right. Q. And I think you said that the flashbacks that you experienced were the mental picture of the person on The Voyager saying, 'Help me, help me.'? A. That's correct. Q. Has the mental picture of the flashback changed over time? A. No, I still get the same mental picture. Q. The affidavit that you swore on 4 March 2002 records in paragraph 3 that you could see several men on The Voyager yelling out, 'Help us, help us.' Have you got that affidavit in front of you, see that in paragraph 3? A. Yes, I see that. Q. Is that recollection that you record there correct, that there were several men that you saw on The Voyager? A. That is correct. I told the solicitor I seen several men sort of crouched on the over side – on the side that was turned over with one man standing up. Q. And the flashback that you see, the mental picture that you have when you have the flashback, is that of several men or one man? A. One man. Q. And the flashback I take it is a flashback that you have experienced I think you said in your evidence in-chief consistently over the period from 1964 until the present time? A. Yes. Q. But less frequently over the past, what, few months? A. Few months. Q. Is it your evidence that it had occurred numerous times every day over the whole of the period from 1964 until the present time? A. Yes, it has occurred numerous times. Q. And, what, five times a day? A. Could be five times a day, could be 12 times a day sometimes. Q. Is that the only emotional response that you can remember that you had to the collision over the whole of the period from 1964 until the present time? A. Yes. 26 He also gave evidence of suffering anxiety and depression over the period from 1964 until the present. He was then questioned about difficulties with sleeping (pp 22-23): Q. What about the difficulties with sleeping. Have you had that over the whole of the period since 1964? A. Not actually over the whole period. The worst part was after I got out of the Navy. It was not too bad while I was in the Navy because you had someone constantly around you all the time that you were talking to and you felt more relaxed. Q. What about the night sweats. Was that an emotional reaction that you had to the collision for the whole of the period from 1964 until the present time? A. I attributed it to that, yes. Q. Just dealing with the difficulties with sleeping, was that something that you experienced every night for the whole of the period from 1964 until the present time? A. Not every night, your Honour, most nights like [not?] every night. Q. Most nights of the week? A. Most nights of the week. Q. Five or six nights a week? A. Some nights it will be. Other nights I could go to sleep easily. Q. And were you having difficulties sleeping because you were continually reliving the events that occurred during the collision between the Melbourne and the Voyager. Is that the reason that you were having difficulties sleeping? A. That's what I attributed it to, yes. 27 He was asked about his stammering and gave the following evidence (pp 24-25): Q. When did you first start to stammer? A. I first noticed I was stammering in about '65. Q. In your mind, your stammering was a consequence of the effect of the collision upon you? A. That's what I believe, yes. … Q. At what stage, sir, do you say that you became aware that your difficulty making decisions and solving problems was a consequence of your stammering. A. I would say from late '65. Q. Did you have any other, as far as you can recollect, since 1964, any other emotional reaction to the collision? For example, did you attempt to medicate yourself using alcohol? A. Yes, I did. 28 His Honour interrupted the cross-examination to note a level of ambiguity, not as to the symptoms experienced, but as to the time the plaintiff attributed them to the collision. The following questioning then took pace (at pp 27-28): Q. …[B]etween the period 1964 to 1970, you attributed the difficulties you were having getting to sleep with the effects of the collision upon you? A. Correct. Q. Because you were remembering, when you were trying to get to sleep, what had happened on that night? A. Correct. Q. So too after 1970 when the difficulties with sleeping increased, you attributed those difficulties to the effects of the collision upon you, correct? A. Correct. Q. Because you were reliving, in effect, the events of that night while you were trying to get to sleep, correct? A. Correct. … Q. Between the period 1964 to 1970 when you were increasing your use of alcohol, you knew that the reason why you were increasing the use of alcohol was to alleviate the effect of being constantly reminded of the collision, correct? A. Yes. Q. And you knew, therefore, I suggest to you, that your increased use of alcohol was directly related to the effects upon you of the collision? … A. I'd have to say yes. I used it to try and block out the visions or the photographic memory I was getting in my head. 29 Counsel for the Commonwealth then turned to advice the plaintiff had received in relation to his problems with alcohol, anxiety, depression and getting to sleep (at pp 29-30): Q. It's correct, isn't it, that you knew that you had a problem but you didn't know what your problem was? A. Well, true to say, yes. Q. One of the reasons why you knew that you had a problem was that your wife had been suggesting to you for some time over the years since you were married that you had a problem and that you should seek help? A. That is correct. Q. And when, as best as you could recollect, did you wife suggest to you that you had a problem and that you should seek some help? A. Yes, she advised me to do that. Q. When, as best as you can remember, did she first do that? A. I think I might have been still in the Navy. Prior to leaving the Navy she urged me to see a naval doctor about my problems. I said, 'There's nothing wrong with me.' We weren't offered any help after the accident so -- Q. Is that something you can remember, the suggestion by your wife that you should seek help from the Navy psychiatrist? A. No, she didn't say 'psychiatrist'. In her written statement she wrote down 'doctor'. I don't remember her – I know it was suggested some time late after we got married that I see someone, but that was it. Q. She was suggesting to you, was she, that you should see someone about -- A. About by drinking problem or what problems I had. Q. Which were what? A. My drinking and the restlessness, the abuse which stemmed from she knew it had something to do with the Navy but she didn't know what because I never told her up until this day about the accident. She only – only what she's read in the affidavits. Q. But she was clearly suggesting to you, wasn't she, that you had a problem? A. That is correct. Q. And it wasn't on only the one occasion that she suggested to you that you had a problem; it was quite frequently, wasn't it? A. Over the period of the 70s and 80s, yes, she suggested to me quite a few times. Q. The first suggestion was, since what time in early 1960 -- A. It was after we were married, probably mid '69, late '69. Before I got out of the Navy she pleaded with me to seek help. Q. She continued to urge you to seek help up until -- A. Up until I gave the drink up. 30 The primary judge dealt with the normative question at [47]-[55], concluding that he was satisfied that the plaintiff "ought to have followed his wife's advice at the latest by 1981". (1981 was the year in which he overcame his dependence on alcohol, but without diminution in the other symptoms of his anxiety.) 31 His Honour commenced consideration of this matter at [48] in the following way: "There is no doubt that the plaintiff was aware that he was suffering quite intrusive symptoms which affected his everyday life and that those symptoms were attributable to the collision. The question then is ought … he to have become aware that these constituted a psychiatric illness?" 32 His Honour then considers a discussion by Professor McFarlane of a common symptom of PTSD, namely avoidance of treatment and avoidance of disclosing symptoms to doctors. (That evidence was not given on the basis of any consultation with the plaintiff, but rather in terms of the nature of the condition.) Having taken that matter into account, his Honour, in effect, found that its weight was greatly diminished by the circumstances of the particular case. At [54] he reasoned: "This is not a case of a man who was left entirely to his own devices to cope as best he could with the problems that he has experienced. This is the case of a man who was aware that he had intrusive and continuing problems of an emotional or mental nature following the collision in February 1964 and was aware that those problems were of such severity that his wife repeatedly urged him from late 1969 up until about 1981 to seek appropriate help." 33 So much may be accepted: the critical question is by what criteria a normative judgment should be made as to whether he "ought" to have taken steps through which he probably would have become aware of the fact that he had suffered an injury. As noted in Shaw at [32]-[33], there is some awkwardness in asking whether a person ought to have sought medical treatment, in order to be allowed to bring legal proceedings against the person who may have caused or contributed to the condition from which the person suffers, the relevant criterion being his own responsibility for his continuing ignorance. Factors which might make it inappropriate to conclude that the plaintiff "ought" to have taken steps which would have resulted in him obtaining knowledge that he had suffered an injury may include, depending on the circumstances: (a) any known link between the injury and the failure to take such steps; (b) any conduct of the prospective defendant which may have discouraged the taking of such steps; (c) particular characteristics of the plaintiff which may have discouraged the taking of such steps, and (d) the likelihood, in the plaintiff's mind, that such steps would be appropriate for the purpose for which they were taken, which will probably be to obtain advice as to appropriate medical treatment. 34 In the present case, the evidence set out above demonstrates that the connection between his condition and the collision was well-understood, even before he knew the nature of his condition. The matters identified at (b) and (c) above did not loom large in the assessment. However, one factor which militates against an adverse finding with respect to the plaintiff's conduct is the very fact that he did not think he suffered from any "mental impairment" or psychiatric disorder. If the required step is to seek medical treatment, it is not unreasonable to avoid taking that step if one is not persuaded that medical treatment is required. On the other hand, just as, despite that belief, it may be unreasonable not to accept a diagnosis of a medical professional once that diagnosis is received, so it may be unreasonable not to accept the advice of people who know one well, that medical or psychological help should be sought. 35 It is this latter factor which appears to underlie the conclusion reached by the primary judge that the plaintiff should have heeded his wife's advice. The fact that in 1981 he was able to take what, for many people in his circumstances might have been considered an unlikely step, and give up alcohol, suggests that he was conscious of the seriousness of his own condition and the unacceptable nature of his behaviour, especially in relation to his family. In my view these factors justify the conclusion reached by the primary judge, on the basis of the evidence set out above. 36 The next question which his Honour addressed was whether, had he obtained medical or psychological advice at an appropriate time, prior to 1981, he would have obtained the knowledge to which s 60I(1)(a) refers. 37 Ground 5 in the draft notice of appeal was in the following terms: "5. His Honour erred in concluding in the absence of evidence that had the Claimant sought medical advice between 1969 to 1981 he would on the probabilities have been diagnosed [as] suffering from a psychiatric illness caused or materially contributed to by the collision." Ground 7 was also addressed to this issue: "7. His Honour erred in failing to consider whether advice from the Claimant's spouse, if followed, would have enabled the Claimant to become aware of each of the matters in s 60I(1)(a)(ii)-(iii) as required by s 60I(1)(b)." 38 To the extent that the complaint is directed to the question raised by par (iii), it is without substance. There is no doubt, as noted above, that the plaintiff was aware at all times of a relevant connection between his symptoms and the collision. 39 To the extent that the complaint concerns par (ii), namely awareness of the "nature and extent" of the injury, it is also without substance. The primary judge expressly identified the question as relating to the seeking of medical advice "at some stage between 1969 and 1981": at [56]. As his Honour stated, at [57]: "The evidence of the plaintiff is that his condition, with some fluctuation, has remained reasonably constant up to the time he underwent psychological treatment during the past two years." 40 His condition appears to have deteriorated in 1969 (possibly exacerbated by his service in Vietnam waters) and improved to a degree when he ceased drinking in 1981. However, significantly the latter change did not affect the ability of psychiatrists in 2000 to diagnose his condition. 41 The complaint relating to lack of evidence is also without merit. The need for the application to be made within three years of the date at which the plaintiff, actual knowledge aside, ought to have become aware of the specified matters is something of which the plaintiff is required to satisfy the Court, pursuant to s 60I(1)(b). If there were an absence of evidence as to when he ought to have become aware of the matters, it is not a factor on which the plaintiff can properly rely. 42 In any event, there was ample evidence. As already noted, there was the evidence of the plaintiff referred to by his Honour at [57] and there were the actual diagnoses of two psychiatrists and a psychologist. Further, at [60]-[64] his Honour noted the following evidence: [60] The circumstances under which it was suggested that he see Dr. Law [were] described by him in evidence at page 13 thus:- 'Q. When was the first time that you thought you might have a psychological injury? A. The first time that I thought was when I seen - I seen Doctor Law. Q. How did you come to see Doctor Law? A. I was recommended to see Doctor Law by the Vietnam Veterans at Granville when I went there to fill out some papers for Veterans Affairs. A bloke said to me, mate, you've got to go and see a psychologist. You are a very stressed person. Why are you stressed? I said I don't know. I said, what's stress?' [61] Exhibit RP7 to the affidavit of the plaintiff sworn 6 May 2004 includes an Emotional and Behavioural Condition Assessment dated 20 March 2001 from Dr Younan. In that Assessment Dr Younan ticked in question 4:- 'Continuous symptoms causing overwhelming distress; he cannot distract himself from the distress even with a high level of support and reassurance.' [62] Dr Younan also ticked in question 7:- 'Obvious distress and preoccupation with the symptoms is evident to casual observers and even persons unfamiliar with him.' … [64] It is clear, therefore, that to a person at the Vietnam Veteran's Association as well as to medical practitioners, the plaintiff had a psychiatric condition which warranted treatment. This was the situation at August 2000 and, on the probabilities, it would have been the situation at any time between 1969 and 1981. Accordingly, I am satisfied on the probabilities that if the plaintiff had followed his wife's exhortations up to 1981 to seek help from a doctor, he would have been diagnosed with a psychiatric illness and have received appropriate treatment." 43 Although there was some minor disagreement in the evidence of the plaintiff as to whether his wife had actually suggested that he see a "doctor", there is no doubt that the conclusion reached by his Honour was well open on the evidence. I would reach the same conclusion. 44 In the result, the discretionary power conferred by s 60G is not engaged. It follows that the appeal should be dismissed. No question of considerations relating to the exercise of discretion, based upon the plaintiff's failure to seek help at an earlier time, arise. Prejudice to the Commonwealth 45 The principles relevant to the exercise of the discretion under s 60G(2) were discussed in Smith. Although it is not necessary to form a final view about their application in relation to this matter, I would note that some criticisms made by the Commonwealth are not without substance. I would refer to two matters in this respect. First, at [76] the primary judge noted that the plaintiff's solicitors had provided a list of persons with whom the plaintiff had associated over the years. He further noted that an investigator had interviewed those who could be located and most of them were unable to give any assistance. However, at [79] his Honour stated, in a passage which is not obviously consistent with that evidence: "Any prejudice to the defendant could be overcome by requiring the plaintiff to furnish to the defendant before the hearing proofs of evidence of such 'before and after' witnesses. This would give the defendant the opportunity to check the service history of such of them as served in the Navy and to make other appropriate inquiries in relation to both those who so served and those who did not serve." With respect, that appears to be very much the exercise which has already been proffered and proved fruitless. 46 Secondly, his Honour expressed the view at [78] that "the difficulties caused by the delay are more likely detrimentally to affect the plaintiff upon whom rests the onus of establishing his consequent injuries and losses." For reasons explained in Shaw, this comment is subject to the criticism that the trial is not necessarily a fair trial, if the Commonwealth is forced to rely upon the weaknesses in the plaintiff's case as its primary basis of defence. Further, if the case is indeed weak, that is a material consideration as to whether it should be allowed to proceed. 47 It is neither necessary nor appropriate in the circumstances to consider these matters further. Conclusions 48 In my view the application for leave to appeal should be dismissed with costs. ********** 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.