Beasley v Commonwealth of Australia

Beasley v Commonwealth of Australia - [2001] NSWSC 998 - NSWSC 2001 case summary — Zoe

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(i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered" 9 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. However s 60I(1)(b) refers to the application being made three years after the plaintiff ought to have become aware of all three matters listed in para (a)(i) to (iii). 10 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 that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. 11 Prior to the expiration of the limitation period the plaintiff knew that after the collision he had become hypervigilant with premonitions of experiencing another catastrophe, increased his alcohol consumption and smoking. He knew that he was having mood changes and flashbacks and nightmares about the dismembered body of his friend. He started to isolate himself from other people. However, he thought that these symptoms he experienced were normal reactions to the trauma of the collision and that in time they would lessen. To avoid these symptoms he channelled his energies into study. 12 On 26 March 1970, the plaintiff consulted Dr Berry, a psychiatrist in the employment of the Navy. In his affidavit the plaintiff gives the reason for this consultation as anxiety. However in cross examination the plaintiff also said that he had a severe headache that he could not cope with. The plaintiff thought that this headache was unusual. Even if he saw the doctor for anxiety, in a letter written in 1997 the plaintiff stated that he was told by the Navy doctors that the symptoms would go away. 13 In 1971, after the limitation period had expired, the plaintiff left the Navy and his life took a dramatic turn for the worse. He lived in a caravan and was permanently drunk. This state of affairs continued up to 1976. Even though the plaintiff stated, with the benefit of hindsight, the symptoms he experienced could have been brought about by the collision and at some subconscious level he may have known this, it is my view that this does not amount to the requisite knowledge. It had to be more definite than subconscious awareness - see Denning No 456 Pty Ltd v Brisbane Unit Development (1983) 155 CLR 129. Even after being given some advice from the Vietnam Veterans advisor, the plaintiff wrote in 1997 that he believed that up until 1996 he believed that his problem was caused by a personal innate weakness in his own psychological makeup, and that was his lot, and he had to live and cope with it. 14 It was in November 1997 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. If I am wrong, it was in 1996 that the plaintiff became aware that he had a diagnosable psychiatric condition, this falls within the time period stipulated in s 60I(1)(b). It is my view that an objective person with the background of the plaintiff ought not have become aware that he suffered from PTSD earlier than 1996. The plaintiff has passed through the s 60I(1)(a)(i) gateway.

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(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 17 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 18 The plaintiff submitted that it was not until he read the statement of claim in 2000, 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. 19 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). 20 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. 21 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. 22 The plaintiff gave evidence during cross examination that he knew the collision was either human or mechanical error. He knew that there had been a blunder. This general knowledge does not equate to knowledge of the specific particulars of negligence as set out in paragraph 5 (a) to (p) of the statement of claim. 23 I accept that it was not until 2000 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. 24 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.

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Just and reasonable 25 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. 26 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995). 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. 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. 27 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. Fairness is a matter of degree. The concept of a fair trial is a relative one to be fair; it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001. 28 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 37 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. 29 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean. 30 The defendant submitted that it will not be able to obtain a fair trial because there is an entry dated 10 April 1970 in the Naval medical records referring to "anxiety" and this can no longer be investigated. Dr Berry recorded that the plaintiff's blood pressure was 170/120 and he was prescribed blood pressure medication. There was also an entry which recorded "very anxious" (Ex A). I accept that it is unlikely that Dr Berry would be available to give evidence about this consultation is he is still alive. The defendant's solicitor, Mr Ktenas, in his affidavit deposes that the plaintiff's service records have been destroyed. They may have been destroyed but prior to their destruction the plaintiff obtained and produced to the court service records and a bundle of Navy records relating to the plaintiff and there are detailed records of his medical condition throughout his Naval career. 31 Dr Adams, Canberra Institute of Technology, Commonwealth Accommodation and Catering Services Limited, Dubbo Base hospital and Dr Jim Taylor's medical records are available. The Macquarie Health Service (Dubbo Base hospital) has advised that it does not hold any records relating to the plaintiff's employment for the period May 1977 until May 1978. However the plaintiff has produced tax records from 1983 until 2000 (Ex C). 32 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. 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. Costs are reserved. 33 The orders I make are:

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