Aussems v Commonwealth of Australia

Mr M Joseph SC (Plaintiff) COUNSEL : Mr C Rundle (Defendant) Mr James Taylor Myrtleford, Victoria (Plaintiff) SOLICITORS : Mr C Ktenas Australian Government Solicitor (Defendant) CATCHWORDS : Extension of time to commence proceedings - Ss 60G and 60I Limitation Act - Voyager/Melbourne collision LEGISLATION CITED : Limitation Act 1969 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Holt v Wynter [2000] 49 NSWLR 148 DECISION : (1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 8 August 1996; (2) Costs are costs in the cause.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20843/96 - GILLIS PIERRE FRANCOIS AUSSEMS v COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings, Ss 60G and 60I Limitation Act - Voyager/Melbourne collision)

1 MASTER: By notice of motion filed 8 August 1996 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavits sworn 3 December 1999 and 11 September 2000. The defendant relied on affidavit of Con Ktenas affirmed 23 November 2000. 2 I observed the plaintiff carefully when he gave evidence and during cross-examination. I formed the opinion that he was generally truthful witness. He volunteered that he exaggerated the symptomatology of his back condition so as to be discharged from the Navy as he could not face going back to sea on the Melbourne. For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts.

(1) The plaintiff was born on 20 May 1945 and is 56 years of age. He presently resides in Lower Plenty, Victoria.

(2) On 20 June 1962 the plaintiff enlisted as a recruit in the Royal Australian Navy at the age of 17 years. He was in good health both physically and psychologically which is borne out by a record of the plaintiff's medical examination prior to enlistment. Prior to the collision the plaintiff was a relaxed happy-go-lucky kid who got on well with people. He was looking forward to a long and successful career in the Navy. He did not drink alcohol except for the one occasion on his 18th birthday about one year prior to the collision.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of Naval Airman Aircraft Handler.

(4) On 10 February 1964 the Voyager was sunk when she collided with the Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives.

(5) At the time of the collision the plaintiff was in the aircraft control room located on the flight deck. He was on duty with senior staff. It was his first sea voyage in the Navy. Suddenly he felt the ship lurch and people began running onto the flight deck. Nobody seemed to known what had happened and someone mentioned that a boiler may have blown up. There was a great deal of confusion. The officer in charge of the aircraft control room told the plaintiff to grab a microphone and follow him. They ran across the flight deck and saw the bow of the Voyager scraping down the port side of the Melbourne. The plaintiff could hear men screaming. He could see the bow section of the Voyager was sinking quickly. Later he saw survivors being brought on board who were covered in oil. Some were injured. He saw the aft section of the Voyager sink. The plaintiff was ordered to clean up the debris from the flight deck. On the bow he was horrified when he saw an officer's hat with what appeared to be human flesh and bone in it. He felt ill. He thought of the men on the Voyager and feared many had been killed. He was terrified that the Melbourne was going to sink and he would be drowned.

(6) When the ship returned to Cockatoo Dock the plaintiff saw the enormous damage that had been caused to the bow of the Melbourne. They were told not to talk to anyone about the accident. The plaintiff became extremely nervous about going back to sea. He began to drink heavily and management to get more than his allotted beer ration. When he went back to sea he was alway anxious. He often woke up in cold sweats and was frightened for no reason. He had nightmares approximately two to three times per week in which he relived the collision. At the end of 1964 the plaintiff managed to get a shore posting to HMAS Albatross and later to HMAS Cerberus.

(7) In late 1968 the plaintiff was posted back to the Melbourne. He was terrified about going to sea again and could not face the thought of it. After a few months on the Melbourne the plaintiff faked a back injury in the hope that he would be posted ashore. He was sent to the Naval hospital at HMAS Penguin. At this time he was emotionally upset and was referred to a Naval psychiatrist. The plaintiff received no treatment or counselling of any kind for his emotional problems.

(8) On 6 May 1969 the plaintiff was discharged from the Navy as being permanently unfit for naval service on the basis that he suffered from both nervousness, depression and a back condition. Since 1964 to date the plaintiff has had back problems.

(9) In about 1969 the plaintiff commenced working for H E Deipenau Pty Limited, Cartage Contractor, a truck company in Brunswick. He was dismissed from this employment after a few months because he refused to work in what he believed to be a dangerous situation. Nevertheless, he produced a reference from that employer to the court. (Ex C). He had a variety of jobs but could not settle down. The plaintiff found it very difficult to take orders and had problems dealing with people in authority. He was anxious and nervous. He was aggressive and took out his frustrations on his wife and child. He drank very heavily for a number of years. He lacked concentration in any job and found it very difficult to hold lengthy conversations with people and still does. Some months later his boss told him that the Melbourne had collided with the USS Evans. The plaintiff suddenly relived the horror of the collision with the Voyager.

(10) In 1969 the plaintiff consulted an ex-Navy doctor, Dr Roger McNeil in relation to his depression. In 1973 Dr McNeil referred to the plaintiff to Dr Cunningham a psychiatrist in Collins Street Melbourne. He consulted Dr Cunningham on one occasion but he received no treatment. He did not see any other psychiatrists until he consulted Dr Wu in 1996. He continued to be depressed and moved from job to job.

(11) In 1972 the plaintiff started a car dealership but could not settle into the business. He sold it in 1975. He started several other car sales businesses but struggled in business. The plaintiff purchased a general store and operated that business for about three years.

(12) In 1992 the plaintiff lost everything he had and went onto unemployment benefits for about 16 months. He then had a couple of jobs selling used cars. He is now currently employed.

(13) In February 1996 the plaintiff consulted Dr Bob Wu a psychiatrist who informed the plaintiff that he was suffering from a psychiatric disorder known as post traumatic stress disorder (PTSD). Until then the plaintiff did not known that he was suffering from a psychiatric illness nor did he know the nature or extent of that illness. While he appreciated that after the collision he drank alcohol to excess , had nightmares, depression and had difficulty holding down a job, he thought that this was normal.

(14) On 8 August 1996 the statement of claim and notice of notice seeking to extend the limitation period were filed.

(15) From December 1999 the plaintiff has been consulting Dr Cooper a psychiatrist. Dr Cooper in his report of 6 October 2000 (Ex D) states that his initial assessment of the plaintiff was that he was suffering from PTSD caused by his exposure to the trauma of the Melbourne/Voyager collision. His impression was that the plaintiff had had problems consistent with PTSD for approximately 30 year. The diagnosis of PTSD fulfilled the DSM IV diagnostic criteria. Dr Cooper stated that secondary to PTSD the plaintiff suffered from depression and also suffered an alcohol abuse disorder which was now partially in remission.

It was Dr Cooper's prognosis that the plaintiff continues to suffer from persisting symptoms of chronic PTSD but that he was no longer depressed and the severity of his symptoms has improved. Dr Cooper stated that the plaintiff would continue to suffer from his PTSD to varying degrees and would remain partially disabled by it, and that he would be less likely to sustain normal employment and would probably continue to have a degree of strain within his important relations. The future plan of management for the plaintiff is for him to remain on his current regimen of medication which Dr Cooper would review towards the year in order to determine whether any further changes need to occur. The plaintiff has continued to received counselling at the Vietnam Veterans Counselling Service on a regular basis which Dr Cooper believed was an important aspect of the plaintiff's ongoing treatment. The Law 3 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. 4 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 5 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 8 August 1993. 6 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 8 August 1993); or to show that that fact was or those facts were still unknown to him on that date. 7 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered PTSD until 1996 when he saw Dr Wu. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant's act or omissions until he read the statement of claim in 1996. The defendant submitted that the plaintiff did not pass the s 60I(a)(i) to (iii) thresholds because he was prepared to embellish his claim and knew that he had some of the symptoms of PTSD prior to the expiration of the limitation period.

(i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 8 The plaintiff knew that prior to the accident he was a relaxed happy go lucky person who got on well with people. Prior to the collision the plaintiff has on only one occasion, namely his 18th birthday, consumed alcohol. After the accident and prior to the expiration of the limitation period, the plaintiff knew that he was nervous going to sea. He was most reluctant to go back on the Melbourne. He also knew that he was anxious, aggressive and lacked concentration and woke up with cold sweats. Within this time he knew that he was drinking heavily to obviate the memory of the collision. He had nightmares two to three times per week, usually about the Voyager. However, he thought these reactions were normal and he had to get on with his life. He knew that he was discharged from the Navy due to a combination of his back injury and nervousness. 9 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury which the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. It was in 1996 at the earliest when the plaintiff was informed for the first time that he suffered from a diagnosable psychiatric illness by Dr Wu and that it was caused by the collision. It is my view the plaintiff did not become aware that he suffered a personal injury until it was explained to him by Dr Wu in 1996. Dr Cooper agrees with Dr Wu's diagnosis. This knowledge was acquired by the plaintiff within the time stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 10 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness. 11 I have referred to the state of the plaintiff's knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. Nevertheless, he was unaware that he had a diagnosable psychiatric illness until 1996 at the earliest. 12 It is my view that the plaintiff did not know the nature or extent of his personal injury until 1996 at the earliest when he became aware that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). The plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission " 13 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 14 The plaintiff submitted that it was not until he read the statement of claim in 1996, and specifically the particulars of negligence, that he was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents. 15 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 16 In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows: (a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so; (b) Failing to correctly carry out orders transmitted from Melbourne to Voyager; (c) Failing to correctly receive orders transmitted from Melbourne to Voyager; (d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne; (e) Failing to correctly transmit as orders, signals received from Melbourne; (f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne; (g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne; (h) Failing to alter the course or speed of Voyager in time to avoid a collision; (i) Failing to maintain a constant and efficient watch; (j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur; (k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne; (l) Failing to warn Melbourne that a collision was imminent; (m) Failing to give right of way to Melbourne; (n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition; (o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe; (p) Failing to maintain any or any adequate lookout. 17 Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. The plaintiff was not cross examined on this topic. 18 The plaintiff's evidence on this issue was not clear. The plaintiff swore an affidavit on 11 September 2000 which stated that he was unaware of the acts or omission until he read the statement of claim. The plaintiff gave evidence that he read the statement of claim before he swore the affidavit but was unsure exactly when this occurred, and admitted that he first could have read the statement of claim in 1996. The plaintiff first consulted his solicitor in 1996. The statement of claim was filed on 8 August 1996. Hence, the earliest that the plaintiff could have read the statement of claim was 1996. I accept that it was not until 1996 at the earliest, when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant's acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway. 19 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 20 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. 21 The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. 22 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that on application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. The applicant would not be able to demonstrate that it was fair and just that leave be granted if to do so would result in significant prejudice to the potential defendant. If there is an absence of significant prejudice to a potential defendant, there is no reason why the discretion should be exercised in favour of the plaintiff. 23 The defendant has admitted the collision but denied it was negligent. As I have previously stated in earlier judgments, I accept that with the passing of 36 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 24 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean. 25 The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. There are records of the plaintiff's physical and psychological health prior to enlistment. There is a complete list from the Health Insurance Commission of all the plaintiff's medical attendances from 1984 to date. The plaintiff has continued to suffer from a back condition and gout. The plaintiff was able to give some details of the doctors he had attended in relation to these complaints. Dr Wu is dead but his records are available. Likewise, the plaintiff consulted Dr McGeorge once he also is deceased. His notes of the consultation are available. In 1969 the plaintiff consulted Dr Roger McNeil once in relation to depression. A reporting letter dated 30 April 1973 to Dr McNeil is available. Dr McNeil the general practitioner's clinical notes are available. Voluminous records including the plaintiff's service card, from the Navy have been produced by the plaintiff (see Exs A and H) despite the defendant's belief that they no longer existed. 26 It appears that there are records available for the plaintiff's employment with Port of Melbourne Emergency Services. Between 1975 and 2001 the plaintiff was self employed. He has provided a complete list of his business names and addressed in chronological order for this period (Ex E). The business are predominantly those of a car salesman. Additionally, the plaintiff has produced taxation returns and notices of assessment from 1969, when the plaintiff was still in the Navy, to date. In 1969 the plaintiff was employed by H E Deipenau Pty Limited as a contractor so that company would not hold employment records, but he had provided a reference from that company. There are records both medical and employment that fill in any missing gaps.

27 After I have taken into account all of these matters, I am satisfied that the defendant will not suffer "significant prejudice" and will be able to obtain a fair trial. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause. 28 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 8 August 1996.

(2) Costs are costs in the cause. **********

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