Baragwanath v Commonwealth of Australia

Supreme Court of NSW|2005-06-21|Before: Hoeben J

CITATION : Baragwanath v Commonwealth of Australia [2005] NSWSC 575

CATCHWORDS : LIMITATION OF ACTIONS - extension of time - whether plaintiff unaware of nature and extent of personal injury - whether plaintiff unaware of connection between personal injury and act or omission of defendant - whether just and reasonable to grant an extension of time - whether fair trial possible.

ASB-Tech Services Pty Limited v Doeland & Anor [2003] NSWCA 167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 Dedousis v Water Board (1994) 181 CLR 171 CASES CITED : Drayton Coal Pty Limited v Drain (Court of Appeal, unreported, 22 August 1995) Harris v Commercial Minerals Limited (1996) 186 CLR 1 at 12 Holt v Wynter (2000) 49 NSWLR 128 Parsons v Doukas (2001) 52 NSWLR 163 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 State of NSW v Moss (2000) 54 NSWLR 536

Clifford Neil Baragwanath - Plaintiff PARTIES : Commonwealth of Australia - Defendant

G Melick SC/K Sant - Plaintiff COUNSEL : G Laughton SC/I McLachlan - Defendant

James Taylor & Co - Plaintiff SOLICITORS : Australian Government Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20686/01 - Clifford Neil BARAGWANATH v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: The plaintiff was born on 1 March 1943. He served in the Royal Australian Navy from 3 July 1961 until he was discharged on 2 July 1970. At the time of discharge he had attained the rank of Leading Electrical Mechanic - Power. He was serving as an electrical mechanic on board HMAS Melbourne when on 10 February 1964 it collided with HMAS Voyager. The plaintiff says that as a result of the collision he has developed a chronic moderately severe post-traumatic stress disorder with associated moderately severe depression and generalised anxiety, together with some other injuries. He claims damages for those matters and for their impact on his life. As a preliminary step, he must obtain an order extending the limitation period to 2 August 2001 when these proceedings were commenced. This judgment relates to that application. 2 The Statement of Claim set out a number of particulars of negligence which included matters such as failing to correctly transmit orders and signals. The allegations are pleaded against officers on HMAS Voyager and against officers on HMAS Melbourne. 3 The Statement of Claim does not particularise his injuries and disabilities but refers to particulars to be supplied prior to trial. In a letter dated 2 September 2004, addressed to the Australian Government Solicitor, the plaintiff's solicitors particularised his injuries as follows:

Agoraphobia, chronic moderately severe post-traumatic stress disorder (PTSD), moderately severe depression, generalised anxiety, mood disorder, chronic mild to moderately severe substance abuse disorder of alcohol and tobacco. 4 It was the plaintiff's case that but for the collision and the injuries sustained by him, he would have progressed through the ranks of the Navy within his speciality as an electrical mechanic, until after twenty years he would have been entitled to a DFRDB pension. Following the collision because of his injuries he lost interest in a career in the Navy and was seeking ways to obtain a discharge. 5 The plaintiff also says that had he remained in the Navy he would have earned more than he has been able to earn in employment since his discharge. His claim is for general damages, past economic loss, loss of pension benefits and interest on those components of damage.

The Limitation Act 6 The plaintiff relies upon ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The sections read as follows: "60G(1)This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." "60I(1) A court may not make an order under section 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 paragraphs (a) (i)-(iii). …"

The effect of clause 4 of Schedule 5 of the Act is that section 60G applies in certain cases to causes of action that accrued before 1 September 1990. It was common ground that for the plaintiff to succeed in obtaining an extension of time, he had to bring himself within the provisions of ss 60G and 60I of the Act. 7 A plaintiff seeking an order under s60G must satisfy the requirements of s60I. This requires the plaintiff to:

(a) Show that one or more of sub-paras (i) - (iii) of s60I(1)(a) applies; and

(b) show that the application was made within a time defined by reference to s60I(1)(b).

Where those requirements are met, the court turns to the question of whether in all the circumstances it is just and reasonable to extend the limitation period. 8 The following principles have been stated as relevant to the exercise of discretion conferred by s60G and the "gateway" provisions thereto found in s60I.

(a) An application for extension should be refused if to grant it would cause significant prejudice to the defendant - Holt v Wynter (2000) 49 NSWLR 128.

(b) The discretion conferred is one to grant, not to refuse, an extension and the plaintiff carries the onus of satisfying the court that an extension should be granted - Parsons v Doukas (2001) 52 NSWLR 163.

(c) Although s60I(1)(a) requires proof (on the balance of probabilities) that the plaintiff did not know, or was not aware, of the matters specified, it does not require proof of those matters as facts - Commonwealth of Australia v McLean (1997) 41 NSWLR 389.

Underlying all of the decisions in this area is the fundamental principle that for the court to be satisfied that it is just and reasonable to extend the limitation period, a plaintiff has to satisfy it that a fair trial is possible from the defendant's point of view - Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Holt v Wynter. 9 In considering the fundamental question of whether there can be a fair trial, it is necessary to bear in mind that "fair" does not mean "ideal" - Commonwealth v McLean. An analysis and resolution of that fundamental question requires a consideration of all the circumstances of the case (South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477.) It is not to be answered simply by balancing the relevant prejudice to the plaintiff and the defendant.

Section 60I "Gateway Provisions" 10 The plaintiff's case was that at the time of the collision he was on duty in the main power switchboard compartment. He felt a sudden violent shudder through the ship. There was considerable confusion for some time for the crew of HMAS Melbourne below decks because it was not known what had happened. In particular there was a problem with the closing of the airtight doors, preventing the crew gaining access to their correct stations. Eventually he worked with an electrical party rigging up floodlights and for the rest of the night, assisted survivors as they were brought aboard. While doing this he could see half of the HMAS Voyager still floating in the swell. 11 The plaintiff says that he was very distressed by what had happened and what he had seen. He became depressed and ashamed. He became unhappy in the Navy and disillusioned with it. He made a number of attempts by way of subterfuges to gain a discharge from the Navy. 12 Shortly after the collision the plaintiff commenced to have sleep problems and nightmares. Those nightmares included visions of the rescue scene. Before the collision he had been a moderate drinker and a moderate smoker. After the collision he commenced smoking up to twenty five cigarettes a day and increased his consumption of alcohol significantly to between six and eight cans of beer per night. He has continued to consume large quantities of alcohol ever since. 13 Following the collision he became fearful of going back to sea, although he was required to do so from time to time. He became particularly distressed when required to serve on the Melbourne. Eventually some eighteen months before his discharge from the Navy, through the intervention of the Naval Welfare Service, he was given a shore posting which he filled until his discharge. 14 After the collision the plaintiff had some disciplinary problems. He found he could not concentrate properly. He became edgy and irritable. He thought that the way he was feeling was a normal reaction to what had happened. He said that he never thought that he was suffering from a psychiatric illness. He knew that he had problems but he did not think that these amounted to a psychiatric disorder or disability. 15 In November 1999 he read an article in The Age newspaper about the collision, which referred to a firm of solicitors and to claims by members of the crew of the Melbourne. He contacted that firm, Messrs Hollows of Melbourne. He was sent by them to see a psychiatrist. He was not happy with those solicitors nor with the psychiatrist and in July/August 2001 retained his present solicitors who commenced these proceedings by way of Statement of Claim on 2 August 2001. The plaintiff was referred to Dr Holwill, psychiatrist. A report from Dr Holwill dated 21 August 2001 was annexed to the plaintiff's affidavit in support of the application. 16 The plaintiff said that until Dr Holwill explained his diagnosis to him he had been unaware that he suffered from a psychiatric condition and that this condition had been caused by the collision between the HMAS Melbourne and the Voyager. 17 The plaintiff was cross-examined in relation to his disabilities as follows: "Q. You couldn't get to sleep because you were irritable? A. Yes. Q. And you were thinking about things. Is that right? A. Yes. Q. That included the fact that you were having nightmares? A. Yes. Q. The cycle at least was wasn't it, that you didn't want to go to sleep because you didn't want to have nightmares? A. (Witness nodded) Q. And the nightmares involved flashbacks associated with the aftermath of the collision? A. Yes. Q. You would have attributed the nightmares, insomnia, edginess and irritability all to the aftermath of the collision wouldn't you? A. Just ask me that question again. (Above marked question read back) A. Yes. … Q. To your mind did you have any reason to drink more than you otherwise did say before the collision aside from your nightmares, insomnia, edginess and irritability? A. No. Q. It follows doesn't it that you would have attributed your increased drinking to the nightmares, insomnia, edginess and irritability? A. Yes. Q. You've attributed those symptoms - I'll call them those symptoms I don't want to keep repeating it, it's upsetting I understand why - to the aftermath of the collision? A. Yes. Q. Similarly is the court able to take it that the smoking was increased following the collision for a start? A. Yes. Q. And that one of the reasons that you smoked was to assist with the nightmares and the symptoms we talked about earlier? A. Yes. Q. So the increase in smoking you would wouldn't you have attributed to the aftermath of the collision? A. Yes. Q. You knew from shortly after the collision that you were having the symptoms that we're talking about, the nightmares etc? A. Yes. Q. You knew that shortly after the collision your drinking increased? A. Yes. Q. And you knew that shortly after the collision your smoking had increased? A. Yes. Q. It follows doesn't it that you knew from shortly after the collision that the symptoms that we've been talking about and your increased smoking and your increased drinking were attributable to the aftermath of the collision? A. I certainly know that now. Q. But you knew it back then as well didn't you? A. I didn't link the two sir. Q. Beg your pardon? A. I don't really believe I linked the two. Q. But you have known all along haven't you that the increase in drinking was associated with the symptoms? A. I think I know that now. Q. You knew that then I'm putting to you? A. Yes. Q. Similarly the increase in smoking back then was attributed to the symptoms? A. No I don't think so." (T.44-45)

And: "Q. It seems logical doesn't it that as soon as you know you're having nightmares you knew you had a problem? A. Yes. Q. They started a short time after the collision? A. Yes sir. Q. Similarly the nightmares, insomnia, edginess and irritability occurred a short time after the collision didn't they? A. Yes. Q. And that you realised from the time those symptoms started that you were experiencing problems? A. Eventually. Q. For five years after the collision from say 1964 to 1969 you were experiencing nightmares, insomnia, edginess and irritability weren't you? A. Yes. Q. And it's the case is it not that you knew that you were having problems at the very least after five years of experiencing those symptoms? A. Yes. Q. And that the problems that you were having were able to be attributed to the aftermath of the collision because the nightmares related to it? A. Yes. Q. I'll go back to the original point, you knew that the problem wasn't physical didn't you. You didn't have a broken arm or a broken leg or something similar did you? A. Yes. Q. Therefore you knew didn't you that the problems of which you gave evidence were mental, they were in your mind? A. Yes." (T.46-47) 18 On the basis of that cross-examination the defendant submitted that the plaintiff had failed to bring himself within the provisions of s60I(1)(a)(i) and (ii). Reliance was placed upon Commonwealth of Australia v Nelson [2001] NSWCA 443 to support the proposition that because the plaintiff was aware of his symptoms and that they were attributable to the collision, the fact that he was not able to put a label on them such as PTSD did not mean that he was unaware that personal injury had been suffered and that he was unaware of the nature or extent of the personal injury. 19 For completeness, I set out the actual diagnosis by Dr Holwill in his report of 21 August 2001 in relation to the plaintiff. "Mr Baragwanath presents with a history of developing a chronic moderately severe post traumatic stress disorder with associated moderately severe depression and generalised anxiety as a result of his experiences in the Royal Australian Navy particularly at the time of the collision between HMAS Melbourne and HMAS Voyager. … In addition to these psychiatric conditions, he has developed chronic mild to moderately severe substance abuse (alcohol and tobacco) those conditions developing during the course of his service in the Royal Australian Navy and being aggravated by his experiences during the collision between HMAS Voyager and HMAS Melbourne. Mr Baragwanath has had no active treatment for his psychiatric conditions, they are of moderate severity and significantly impair his quality of life … Mr Baragwanath has limited insight into the nature of his psychiatric condition, and never regarded himself as suffering from a psychiatric injury, but rather perceived himself to have been "weak" and fearful. It was for that reason that he had never sought treatment or any form of compensation for his experiences." 20 On the basis of the concessions obtained under cross-examination, there is some force in the defendant's submission that within five years of the collision the plaintiff was aware that he had suffered personal injury in a general sense. Accordingly, I am not satisfied that the gateway requirement of s60I(1)(a)(i) has been accessed. 21 I am, however, satisfied that at no time until his discussions with Dr Holwill was the plaintiff aware of the nature or extent of the personal injury which he had suffered. To be aware that nightmares, insomnia and substance abuse may have a mental origin is a far cry from being aware that one has a recognised psychiatric condition such as PTSD and depression. It seems to me that the facts of this case are much closer to those considered by the Full Federal Court in Commonwealth v Dinnison (1995) 56 FCR 389. There the plaintiff was aware throughout the limitation period that he had an anxiety state but it was only after the expiration of the period that he became aware that he had a recognised psychiatric illness. 22 On this issue the High Court determined that the time to examine the "nature or extent of the injury" was at the time of the application (Harris v Commercial Minerals Limited (1996) 186 CLR 1 at 12). The Court also approved the following statement by Clarke JA in CRA v Martignago (1996) 39 NSWLR 13 at 20: "The subsection is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications implications or potentially serious consequences." 23 Applying that approach to the evidence of the plaintiff, and having regard to the opinion of Dr Holwill, I am of the opinion that the plaintiff has accessed the gateway provided by s60I(1)(a)(ii). 24 I am also of the opinion that the plaintiff has accessed the gateway provided by s60I(1)(a)(iii). The only evidence on this issue was: "Q. You must have known that the collision had been caused by an error of one or other of the crew of the ships, mustn't you? A. I don't know the final result of what the Royal Commission said, sir. I gave up listening to it. Q. Two ships don't just collide on the high seas? A. Exactly. Q. And two then, as they were, perhaps modern warships do not collide on the high seas? A. Yes. Q. Without there being fault on someone's part? A. Yes. Q. That's right isn't it? A. Yes. Q. And that would have been your thinking at the time wouldn't it? A. Yes. Q. And you knew at about the time that the collision occurred, that is shortly after the collision occurred, that someone had to be blamed for the collision didn't you? A. Dead or alive sir." (T.16) 25 On the basis of that evidence, it was submitted on behalf of the defendant, that those answers indicated that the plaintiff from an early point in time was aware of the defendant's liability for the symptoms which he knew he had and which he knew were related to the collision. 26 The submission misunderstands what was said by the High Court in Dedousis v Water Board (1994) 181 CLR 171 and Drayton Coal Pty Limited v Drain (Court of Appeal, unreported, 22 August 1995). "Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than the legal conclusion. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence) and the plaintiff's awareness of that legal complexion, is not what matters for the purposes of s60I(1). The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the Statement of Claim and the evidence in support of the application for an extension of time)." ( Drayton pp 5-6) 27 Putting the defendant's submission at its highest on this point, the plaintiff was aware of the legal conclusion, ie that someone must have been negligent. There is no evidence that he had any knowledge of any of the facts upon which such a finding of negligence might have been based. On the contrary his evidence was to the effect that he had no detailed knowledge of the facts leading up to the collision at all. In those circumstances, I am of the opinion that the plaintiff has accessed the gateway provided by s60I(1)(a)(iii). 28 It follows from the above findings in relation to s60I(1)(a)(ii) and (iii) that, because the plaintiff did not have the requisite knowledge until after he consulted his present solicitors in July/August 2001, these present proceedings were brought in accordance with s60I(1)(b), ie within three years after the plaintiff became aware of all three matters listed in (a). 29 Similarly, there is no evidence which would indicate that before he consulted Dr Holwill the symptoms of which the plaintiff was aware were such that he ought to have consulted a psychiatrist. The plaintiff's explanation to Dr Holwill that he believed the continuation of his symptoms was due to some personal weakness on his part seems to me to be a reasonable one and consistent with his evidence generally. There is no evidence to suggest from an objective point of view why the plaintiff should have made inquires about the facts and circumstances behind the collision until he consulted his solicitors. Accordingly, I am also satisfied that these proceedings have been brought within three years after the plaintiff ought to have become aware of the matters listed in s60I(1)(a).

Section 60G - Just and Reasonable 30 Having passed through the s60I gateway, it is still necessary for the plaintiff to show that it is just and reasonable for the limitation period to be extended, not for the defendant to show that it is not. On this issue the evidence and submissions focused on the question of prejudice to the defendant. Accordingly, and notwithstanding the onus on the plaintiff, I propose to consider this issue by reference to the defendant's case. I wish to make it clear that I am not in anyway reversing the onus which at all times remains upon the plaintiff to establish that it is just and reasonable for the limitation period to be extended. 31 It should be noted that the defendant has admitted breach of duty of care. There remain in issue between the parties the questions of causation and quantification of damages. If there is to be a trial, it will be limited to those matters. Questions of prejudice and a fair trial need to be looked at against the issues which will be actually contested at trial. 32 The defendant in its submissions relied upon three matters generally.

(a) The passage of time since the collision had led to the loss of documents and the loss of potential witnesses so that the claim could not be properly defended.

(b) There was a large claim for past economic loss which to a significant extent depended upon the unsubstantiated assertions of the plaintiff which could not be adequately tested by the defendant.

(c) Cross-examination of the plaintiff had established him to be an unreliable witness in the sense referred to in Commonwealth of Australian v Diston [2003] NSWCA 51. This unreliability exacerbated the prejudice in (a) and (b), where the only evidence available on a subject was that of the plaintiff. 33 In relation to the loss of documents and witnesses, the defendant has prepared a useful schedule which deals with this issue by reference to topics which would be relevant to the plaintiff's case. By way of illustration, in relation to his Naval service the topics specified are his service before the collision, his activities at the time of the collision and his service after the collision. 34 For the period of Naval service before the collision, Navy records identified persons who served with and in command of the plaintiff. Investigators retained by the defendant have sought to contact those persons by reference to Telstra and electoral records. The results of those inquiries are that most potential witnesses can no longer be located and of those who were able to be contacted, none were able to assist. 35 The plaintiff has criticised this process on the basis that the inquiries were cursory (ie restricted to a telephone call) and no attempt was made to jog the memory of those persons who recalled the plaintiff before the collision by showing them a photograph, or matters of that kind. There is some force in that criticism. Nevertheless, it seems to me to be a matter of common sense that even if much fuller and comprehensive inquiries had been carried out, it is most unlikely that much information would emerge which would be useful and which would stand up to any kind of cross-examination. In any event it does not seem to be in issue that before the collision the plaintiff was performing adequately. 36 Of more importance in relation to this period is that the defendant has an almost complete set of documents relating to the plaintiff which includes his service card, his full Naval health record, his psychological records, his application for discharge, his disciplinary record and all other records, except for his welfare file. While it is conceded by the plaintiff that the welfare file could contain useful information as to his application for a shore posting during the last eighteen months of his service, the other records provide the best and most accurate information concerning his pre-collision service with the Navy. Those records are likely to be far more accurate than forty-year old recollections of individuals. 37 The question of what the plaintiff was doing at the time of the collision and the extent of his participation in rescue and other post-collision activities, is obviously important. One of the usual requirements for a diagnosis of PTSD is that the person suffering from it had been at some personal risk or at least had believed that he was at some personal risk and to a lesser extent that others were also at risk. 38 The defendant's schedule on this issue was compiled in the same way as was the pre-collision schedule. The results have been considerably better. This is not surprising since an event such as the collision is more likely to have remained in peoples' minds than routine service activities which were carried out by the plaintiff before the collision. 39 The schedule reveals that potentially there are ten witnesses who may be able to provide some assistance as to where the plaintiff was and what he was doing. Subsequent to the preparation of the schedule some of those witnesses were interviewed by telephone and the results of those interviews are set out in Exhibit 9, an investigation report from Maxwell Investigations, undated, but which was clearly completed within seven days of the hearing. 40 It is clear from Exhibit 9 that at least potentially some of these witnesses could be of considerable help to the defendant. This is so if they are personally interviewed and efforts are made to jog their memory by reference to the layout of the Melbourne at the time and a photograph of the plaintiff. The defendant also has available a copy of the questionnaire completed by the plaintiff for the Royal Commission dated 25 February 1964 which raises matters which potentially may be adverse to the plaintiff's credit (Exhibit 1). In relation to this period and the post-collision period the defendant also has most of the plaintiff's service records. 41 In relation to the plaintiff's service after the collision until his discharge on 2 July 1970, a similar process of inquiry was made by the defendant through its investigators. Once again the schedule reveals that there were some potential witnesses identified who did recollect the plaintiff. Exhibit 9 includes the following extracts: "Smith, Anthony James [address] Remembers the plaintiff and his appearance as a short stocky bloke with black hair. The plaintiff seemed quiet and reserved. No apparent injuries but can't comment on his emotional status as can't remember that. Generally did not live with them. The atmosphere was stressful as a lot was always expected of the men who lived in rough or bare conditions. Other blokes who were in the plaintiff's group were Morse, Robbie Robinson, Mike Kielty, Carroll, Bob Bailey. I have a pretty good memory and am willing to assist if required." "McCarthy, Terry [address] Remembers the plaintiff in the Navy (Yarra) and afterwards as they worked together selling the pink pages telephone directory. He said the plaintiff never changed, there was nothing wrong with him. Willing to assist the AGS if required." 42 Another topic specified in the schedule is the absence of any recollection on the part of medical practitioners who treated, or may have treated the plaintiff, while he was in the Navy. Not surprisingly, none of them can remember the plaintiff. As indicated, the defendant does have available the plaintiff's complete medical file. That would seem to me to be the best evidence of any medical treatment and complaints which he made to doctors whilst in the Navy. Given the nature of his condition and his evidence that he has never sought medical treatment for it, in particular never sought any psychological or psychiatric treatment, the absence of recollection by Naval medical practitioners would seem to be quite peripheral to the issues likely to be raised at trial. 43 In relation to the plaintiff's Naval service after the collision two important documents were put to him in cross-examination. The first was a letter from him to his commanding officer requesting a discharge so that he could stand as a member of parliament (Exhibit 4). On one view of it, that letter supports matters raised in his affidavit but there are other matters in it which might place quite a different complexion on that affidavit material. There is also a medical report which although it confirms that after the collision the plaintiff was complaining of sleep walking, also refers to his wife becoming hysterical (she having lost her father on the Voyager) when he went to sea (Exhibit 5). At least potentially these matters provide useful material for cross-examination to test the plaintiff's assertions. 44 A matter to which I can have regard is the fact that this Court has heard a number of cases brought by members of the crew of the Melbourne against the Commonwealth. Some, but not all, have proceeded to judgment. The judgments are available. The judgments contain a recitation of the facts and competing submissions. It seems to me that the information available to the defendant concerning the plaintiff's Naval service both before, during and after the collision in this case is significantly greater than in most of the cases which have proceeded to judgment in this Court. 45 Leaving aside that consideration, however, and focusing purely on the facts of this case and the information which is now available and which is potentially available when the identified witnesses have been properly interviewed by the defendant, I am satisfied that the loss of the welfare file, the degradation of the memory of some potential witnesses and the unavailability or absence of other witnesses is not such as would prevent a fair trial taking place from the defendant's point of view. 46 The defendant submits that it has been seriously prejudiced when dealing with the plaintiff's claim for past economic loss after his discharge from the Navy, because the claim involves a period of thirty four years but there are tax returns or tax assessments for only seventeen of those years. In particular the defendant points to the period from 21 August 1978 to 13 March 1988 when the plaintiff was self-employed. There are no tax returns for that period and the only particulars of earnings is a range of between $130 - $500 after tax. In his evidence the plaintiff says that this range of earnings and the other amounts set out in para 13 of his affidavit, which are not supported by taxation records, were derived by him by a process of estimation. 47 This forms a significant part of the plaintiff's claim. The defendant's complaint is that the only evidence on this subject will be that of the plaintiff and the defendant will not, except in one respect to which I will refer, be able to test his unsubstantiated assertions. The defendant accepts that in relation to some other years for which there are no taxation records, there are bank statements and deposit books available which may provide a somewhat fuller picture, but there is no evidence that these documents are comprehensive and complete. Even taking those documents into account, there is a period of ten - twelve years for which no documentation is available to support a claim for past economic loss. 48 During 1979 the plaintiff was engaged in Family Court proceedings relating to the maintenance and custody of the three sons of his first marriage. The Family Court file was produced to the court. From that file the defendant tendered Exhibit 6, being an affidavit by the plaintiff sworn on 11 July 1979. Included in that affidavit is a statement by the plaintiff of his pre-taxation earnings for the year ending 30 June 1978. They show earnings of approximately $470 per week. When that material is compared with his estimate for that year of $150 per week after tax, it is clear that the estimate is not only incorrect it is incorrect by a significant margin. 49 The defendant points to that discrepancy to support its argument that it is unfair for the matter to go to trial with the evidence in this state since in this instance at least, the plaintiff's estimate of his earnings is plainly and significantly wrong. The plaintiff freely conceded this when the affidavit was placed before him. 50 The existence of the Family Court material, and in particular the affidavit Exhibit 6, cuts both ways. On one approach it provides clear evidence of the unreliability of the plaintiff's estimates of earnings where those earnings are not substantiated by tax or other records. At least potentially that material when produced at the trial would place doubt on all of the plaintiff's estimates, unless the plaintiff could substantiate them. Rather than demonstrating an element of unfairness if the matter were allowed to proceed, this affidavit potentially provides a powerful argument for the defendant at any trial to discredit the plaintiff's unsubstantiated estimates of earnings. 51 In personal injury matters it is unfortunately not unusual for there to be little or no substantiation for claims for economic loss. This has never been accepted as a reason for why the courts should not attempt to do justice between the parties by doing the best they can to make an appropriate assessment. (State of NSW v Moss (2000) 54 NSWLR 536.) It follows that I am satisfied that the absence of documentary substantiation for part of the plaintiff's claim for past economic loss will not prevent a fair trial taking place. 52 The medical records of the plaintiff which are currently available are his Naval records until July 1970, those of Dr Bayly, a general practitioner, for the period 1982 - 2000, of Dr Chuih, general practitioner 20001-2003 and various specialist reports in the specialities of ophthalmology and cardiology between 1986 and the present time. Except for the 1970's, the defendant has available quite a comprehensive set of medical records. 53 In para 19 of his affidavit, the plaintiff identified to the best of his ability every medical practitioner who treated him since he left the Navy. In his evidence he added an additional doctor to that list, bringing it up to eighteen. I do not regard this as a significant matter of prejudice for the defendant. As with the plaintiff's post-collision service in the Navy, he has consistently stated that over the years he has not sought psychiatric treatment, or treatment generally in relation to the disabilities which he now seeks to attribute to the collision. Such medical records, therefore, would be unlikely of their nature to be of assistance to either party. To the extent that medical records do exist, they confirm problems which the plaintiff had with alcohol and tobacco abuse. There also appear to be reports from a Mr O'Neill, psychologist, in the Family Court file which was produced to the court. They were not tendered, but they exist. Whether those reports relate to the plaintiff or to his children or to his first wife I do not know, but the existence of such material which relates to 1979 can only assist the defendant. 54 In relation to the plaintiff's unreliability the defendant referred the court to the following matters.

(a) The discrepancy between the plaintiff's assertion that he was on duty at the time of the collision and the contents of the Royal Commission questionnaire.

(b) Potential discrepancies between what he told Dr Holwill about his attempts to obtain a discharge from the Navy and the contents of Exhibits 4 and 5.

(c) The discrepancy between the history given to Dr Holwill concerning disabilities and that recorded in the notes of Dr Hopwood (the doctor to whom he was referred in December 1999).

(d) The apparent discrepancy between the claim that he suffers from agoraphobia and the fact of his sales job over many years.

(e) The inherent improbability of the plaintiff not being aware until 1999 that claims were being made against the Commonwealth by members of the crew of HMAS Melbourne. 55 By reference to those matters the defendant relies upon Diston's case to support the proposition that the plaintiff is an essentially unreliable witness and because so much of his case depends upon his unsubstantiated evidence, which the defendant has no way of testing, it would be unfair to the defendant to allow the matter to go to trial. 56 The facts in Diston were significantly different to those in this case. Mr Diston had been involved in an explosion aboard HMAS Tarakan in circumstances which were significantly more life threatening than his experience aboard the Melbourne. He had engaged in a deliberate and calculated attempt to mislead by only referring to the Tarakan incident, without mention of the Melbourne/Voyager collision and vice versa. There were other major discrepancies in his evidence. 57 The matters asserted against the plaintiff's credit here are not only of a significantly lower level of seriousness, but they are much less clear. He was unable to remember ever completing the Royal Commission questionnaire. The contents of Exhibits 4 and 5 are equivocal. On one approach they support the plaintiff. On another they may not. Their effect will ultimately be a matter for the tribunal of fact at trial. 58 The alleged discrepancies between the notes of Dr Hopwood and the report of Dr Holwill do not involve contradictions but rather Dr Holwill was told about matters which do not appear in the notes of Dr Hopwood. The defendant's incredulity at the asserted lack of knowledge about compensation claims is a matter of comment not a matter which was established. 59 These are matters which will undoubtedly be the subject of cross-examination at trial and the plaintiff's credit may be damaged thereby. I am not persuaded by these matters, however, that the applicant's credit has been damaged significantly or at all. I am certainly not persuaded that the plaintiff is to be regarded as an unreliable witness. On the contrary I have formed the view that generally the plaintiff was doing the best he could to answer questions put to him as honestly as he could. What was clear was that he had a poor memory. That, it seems to me, would be more to his detriment than to that of the defendant. 60 The matters of unreliability referred to by the defendant may mean that, if the proceedings go to trial, the plaintiff's evidence will be scrutinised with greater than usual care. They may indeed mean that his evidence will not be accepted unless it is inherently plausible or is in some relevant way corroborated. But they do not mean from the defendant's point of view that there cannot be a fair trial. 61 It follows that I do not find the plaintiff to be an unreliable witness in the sense described in Diston's case. The matters of unreliability to which the defendant has referred are not such as would prevent there being a fair trial. 62 The final argument advanced by the defendant as to the exercise of the s60G discretion, relied upon what was said by Hodgson JA in ASB-Tech Services Pty Limited v Doeland & Anor [2003] NSWCA 167. The facts of that case required an explanation by the plaintiff of why proceedings had not been commenced at an earlier point in time when he had consulted with a solicitor. His Honour said [para 30]: "In my opinion, a first step for an applicant in relation to an application such as this is to lead evidence appropriate to give the Court a satisfactory understanding of why it was that proceedings were not commenced in time. In this case, the absence of any material from Mr. Doeland's previous solicitor meant that the Court could only guess at the true explanation of why proceedings were not commenced. It is not for the respondent to such an application to search out a previous solicitor so that the respondent can explore the circumstances: the onus is squarely on an applicant to provide an explanation, and in the course of doing so to put the Court in a position of understanding just why the proceedings were not commenced in time." 63 In this case the plaintiff consulted Messrs Hollows, solicitors, in November 1999. He was referred to a psychiatrist, Dr Hopwood, in December 1999. The solicitor's file which included a report from Dr Hopwood was produced to the court. The defendant sought access to the file and privilege was claimed by the plaintiff. I upheld that claim for privilege. 64 By analogy with what was said in ASB-Tech Services Pty Limited the defendant submits that by claiming privilege in this way, the plaintiff has failed to make the full disclosure to which Hodgson JA referred. The defendant submits that this is another matter which ought be taken into account when considering the exercise of discretion under s60G. 65 The submission misunderstands what was significant in the ASB-Tech Services case. The consultation with the solicitor in that case occurred in circumstances where it was important that the plaintiff explain why it was the proceedings were not commenced after the consultation. In this case Messrs Hollows were retained well inside the three year period within which proceedings had to be commenced in accordance with s61I(1)(b). Accordingly in this case there was no requirement for the plaintiff to explain why it was that proceedings were not commenced after those solicitors were retained. 66 He was entitled to claim privilege in relation to that solicitor's file and I do not draw an adverse inference from the fact that he did so. As it was the defendant gained access to the notes of Dr Hopwood from which the report was ultimately prepared. It is difficult to see how a failure to gain access to the file of Messrs Hollows constitutes a prejudice to the defendant, which would render the trial unfair. 67 I am satisfied that the fundamental question - can there be a fair trial, should be answered "Yes". 68 I am satisfied that although the Commonwealth will find it difficult in some respects to prepare and put its case (eg the absence of the welfare file), that does not amount to sufficient prejudice to refuse to extend the limitation period. In this case there is a significant amount of information available to the Commonwealth, both in relation to the plaintiff's Naval service and in relation to his activities following his discharge until the present time. Although there are some gaps in that material (eg wages information and medical records) those gaps are not such as would prevent a fair trial from taking place. I am satisfied that it is just and reasonable to grant an extension of the limitation period. 69 I therefore extend the limitation period, pursuant to s60G of the Act up to and including 2 August 2001 when these proceedings were commenced. 70 The question of costs was not argued before me. Senior Counsel for the plaintiff wished me to reserve the question of costs if the plaintiff was successful in the application. He wished to make submissions to the effect that the defendant should pay the costs of the application. Senior Counsel for the defendant agreed that in those circumstances it was appropriate that the question of costs be reserved and I make that order. 71 The parties are given leave to approach my Associate on two days' notice so that a convenient date can be fixed for the costs argument to take place. **********

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.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)

Cited By (4)