Blunden v Commonwealth of Australia [2006] ACTSC 58

Supreme Court of the ACT|2006-06-09|Before: Crispin J

1. This is a motion for an order pursuant to s 36 of the Limitation Act 1985 (ACT) ("s 36") extending the period within which an action might be brought by the plaintiff in respect of injuries and disabilities said to have sustained as a consequence of the defendant's negligence.

2. The action was commenced by an originating application filed on 14 May 1998 and alleges that the plaintiff developed a post-traumatic stress disorder ("PTSD") and other psychological problems as a result of witnessing the sinking of the HMAS Voyager on 10 February 1964. He had been a sailor on the HMAS Melbourne when it collided with the Voyager and had watched the incident from an upper deck. He claims to have subsequently seen injured survivors brought on board the Melbourne and to have later discovered that, of the 84 people killed, 17 had been young men with whom he had enlisted some months earlier and had come to know personally.

3. Notice of the present motion was given on 11 June 1999. It has had a somewhat convoluted history. I initially heard the motion on 5 November 1999 and on 26 November 1999 gave judgment dismissing it on the ground that I could not be satisfied that a fair trial of issues relating to the onset and causation of the plaintiff's PTSD would be possible after such a lengthy period had elapsed. The plaintiff appealed from this decision and on 7 November 2000 a Full Court of the Federal Court of Australia decided, by majority, to allow the appeal; Katz and Kenny JJ having formed the impression that I had not taken into account the other considerations referred to in s 136, and Miles J having formed the contrary impression. The defendant then applied for special leave to appeal to the High Court of Australia from the decision, but on 12 October 2001, the High Court pointed out that the Full Court of the Federal Court had merely upheld the appeal without making any order as to the disposition of the motion. The matter was duly remitted to the Full Court. On 12 December 2001, the Full Court duly set aside the orders I had made in November 1999 and remitted the matter to the Supreme Court for rehearing. However, the defendant subsequently sought to have a case stated to resolve a question that had apparently arisen between the parties as to what limitation law applied to the action, and that aspect of the case was removed to the High Court by order of Gummow J on 11 March 2003. On 10 December 2003, the High Court gave judgment, holding that the applicable law was that of the forum, which in this case was the ACT. The defendant was refused special leave to appeal against the decision of the Full Court of the Federal Court on 13 April 2004. A motion to have the application determined at the same time as the hearing of the action was heard but dismissed on 3 December 2004. The application was listed before me on 9 December 2005 but adjourned when counsel indicated that it would require more time than was then available, and finally reargued only on 29 and 30 March and 6 April 2006.

4. It is difficult to imagine that the money spent on legal fees in pursuing this forensic odyssey could not have covered the cost of settling the plaintiff's apparently modest claim and left some change for other public purposes. However, there were apparently other cases pending and some important issues were resolved. In any event, settlement did not occur and I am now required to determine the matter afresh. New affidavits have been filed by both sides and almost all of the affidavits relied upon in the earlier hearing have been discarded.

5. Section 36 of the Limitation Act authorises the court to extend the period within which an action may be brought to recover damages for personal injuries if satisfied that "it is just and reasonable so to do". Subsection (3) of that section provides that, in addressing that issue, the court must have regard to all the circumstances of the case including:

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received.

6. As McHugh J explained in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 550-555, the discretion provided by provisions of this kind must be exercised in the context of the rationales for the existence of limitation periods. The quality of justice deteriorates with time. In almost every case in which there has been an extensive delay there will be some potential for prejudice. Crucial witnesses may have died and important documents may have been destroyed. Furthermore, the prospects of attaining just results may have deteriorated in ways none of the parties might recognise. Important, perhaps decisive, evidence may have disappeared without anybody knowing that it had once existed. Memories may have faded and the significance of those facts or circumstances that can be recalled may no longer be appreciated. Furthermore, it may be oppressive to allow an action to be brought against a potential defendant long after the circumstances that gave rise to it have passed. People should be generally free to arrange their affairs on the assumption that claims can no longer be made against them after the relevant periods have elapsed. Hence, some prejudice may be presumed even if actual instances of prejudice are not proven. Limitation periods reflect a judgment by the legislature that the general welfare of society is best served by causes of action being litigated within stipulated periods, notwithstanding the real risk that legitimate claims might thereby be defeated. Consequently, whilst an applicant may have an apparently good claim and a good explanation for not pursuing it earlier, those facts may not, of themselves, justify the exercise of the discretion in his or her favour. It is incumbent upon such an applicant to demonstrate that it is just and reasonable for the period to be extended notwithstanding the considerations mentioned. It may sometimes be a lesser evil to expose a defendant to an otherwise statute barred claim than to deprive a plaintiff of the right to have it litigated. That will often be the case when the delay has occurred without significant fault on the part of the plaintiff and when it has not occasioned any readily apparent prejudice to the interests of the defendant. On the other hand, as McHugh J observed, again at 555, the apparent justice of a plaintiff's claim will seldom be sufficient to warrant reinstating a right of action against a defendant who has been effectively deprived of the opportunity of fairly defending the claim, or has suffered significant prejudice as a result of the delay.

7. By the time the present proceedings were commenced more than thirty-four years had elapsed since the tragic accident that Mr Little SC, who appeared for the plaintiff with Mr Sharpe, described as Australia's greatest peacetime military disaster, and that the plaintiff claims precipitated the post traumatic stress disorder and the other psychological conditions from which he continues to suffer. However, Mr Little submitted that this delay was unlikely to have caused significant prejudice to the defendant's prospects of successfully defending the plaintiff's claim.

8. The circumstances in which the Melbourne collided with the Voyager have been the subject of extensive investigations and two Royal Commissions. The defendant does not dispute the fact that it had been caused by negligent acts for which it was at least vicariously responsible, and which involved a breach of the duty of care owed to sailors such as the plaintiff, who had been on the Melbourne. It does, however, dispute the plaintiff's claim that any psychological conditions from which he may have suffered during the intervening decades were caused by his observations of the sinking of the Voyager and related events. It also disputes the plaintiff's contentions as to the extent of any disability that he may have suffered as a consequence. Mr Crowe SC, who appeared for the defendant with Mr Berger, submitted that the defendant's prospects of being able to fairly address these issues had been irretrievably prejudiced by the extraordinary delay that had occurred since the relevant events unfolded.

9. Mr Little argued that the defendant's contentions that it might suffer significant prejudice if the plaintiff were permitted to pursue his claim were exaggerated. He pointed out that a great deal of material was still available and that the defendant's solicitors had tendered copies of medical reports which suggested, variously, that the plaintiff did not suffer from the psychological disorders alleged, that alcohol abuse was the cause of his continuing problems rather than a symptom of a psychological disorder, that if he did have such a disorder it was adequately explained by other events that had occurred in his life, and that he would have had it even if he had not been involved in the incident in question. There was no evidence to suggest that any of the medical experts had been unable to form an opinion as to the cause of his continuing problems or that it had been necessary to venture such an opinion only tentatively due to the paucity of contemporaneous information. However, he conceded that one expert witness, Dr White, had "only half heartedly" agreed that contemporaneous records might be of assistance.

10. These competing contentions must be assessed in the context of the relevant history and, whilst I do not intend to refer to every aspect of the extensive evidence concerning the plaintiff's unhappy life, I should mention at least some of the more salient features.

11. The plaintiff was born on 27 November 1945. He was apparently sexually abused when only ten years old. He left school when still only 14 years old after an argument with a teacher, whom he felt had treated him unfairly after an altercation with another student. He then obtained a job as a teleprinter operator with the NSW Railways Department but left after about 18 months and took a job in a corner store that he held for a further period of about 12 months, before joining the Navy on 25 August 1963 at the age of 17. After completing a three month basic training course, he was posted to the Melbourne.

12. At the time of the collision he was not on duty but was standing on what was described as the "goofer deck" watching planes fly overhead. This vantage point provided a clear view of the collision and much of its tragic aftermath. He said that he saw a section of the Voyager go past as she broke in two and heard the screams of the men. He later went below to assist the crews of the life boats but was not required and felt helpless. He watched the rescue operation and saw crew members of the Voyager brought on board, covered in oil and bearing what appeared to be dreadful injuries. Eighty-four men died in the incident and the plaintiff claims that he had enlisted with 17 of them only a few weeks earlier and had come to know them well. He was still only 18 years old at the time of the collision.

13. The plaintiff claims that during the journey back to Sydney he was told by officers to forget what had happened, not talk to anyone about it and to "go and get drunk". The captain used the address system to announce that nobody was to discuss the collision and another officer, Lieutenant Mortenson, subsequently gave him a similar order in Sydney when he was due to embark upon "survivor's leave". He returned home but drank most of the time on leave "to get away from it all".

14. The plaintiff also claims that soon after the collision he began to have nightmares about what had occurred. He started to drink heavily, had difficulty coping with his duties, and began to encounter disciplinary problems due to leaving the ship and not returning by the required time. He could not sleep without heavy drinking and was nervous and upset. In answer to an interrogatory, he explained that he noticed the symptoms of stress and anxiety within the first week after the accident and said that he had commenced drinking alcohol excessively in an attempt to rid himself of the nightmares.

15. His father drowned in a boating accident in October 1964. He said he found this especially difficult as he had had a fight with him about a week earlier and had not had the opportunity to "patch things up" before he died. He later told Dr Reid, a consultant psychiatrist, that if the Melbourne had not been delayed by bad weather he would have been with him. He denied in evidence, however, that it was only after this incident that he became really upset and wanted to leave the Navy.

16. For some period in 1966 and/or 1967 the plaintiff worked in the radio room of the HMAS Sydney which had been converted into a supply ship and apparently made two trips to convey soldiers to and from Vietnam.

17. On 8 September 1966 he was seen by an RAN medical practitioner, Dr Sakker, whose notes included the following comments:

This sailor has been in trouble constantly during his stay in the RAN. He bitterly resents authority, doesn't like the Navy & the work. Was on the Melbourne in its accident with the Voyager and recent drowning of his father on the Central Coast has made him fear and hate the sea. Is engaged to a girl who is unhappy that he is in the Navy. Past history of bed wetting, he had been observed to and treated for enuresis at Harman. Says that he had wet his bed 3X on the Sydney. He says that he is tense and feels like smashing things.

18. Dr Sakker duly referred him to a RAN psychiatrist, Dr McGeorge, who on 20 September 1966 recorded the following:

Not happy in the service. Can't take the discipline. He thinks about his father's drowning all the time. He certainly looks a picture of misery but this is probably occasioned by his dissatisfaction in the Navy. Feels like smashing thing[s]. He seems to be at a loss to recount any real psychiatric symptoms & I am inclined to regard him as a disciplinary, rather than a medical, problem.

19. He was married on 21 January 1967 and discharged from the Navy on 20 October that year. He continued to drink heavily and experienced difficulties in relation to his marriage and other relationships. He also said that he found it difficult to maintain employment because he would sometimes stay away from work for a few days without warning. However, he did work for Tip Top bakeries for about three months and, in 1968, held a job with Suncrest Bakeries for about ten months, before stealing money from his employer.

20. On 10 March 1969 he was convicted of embezzlement and received a suspended sentence of three months imprisonment.

21. He was admitted to Kenmore Hospital on 31 October 1969 and remained a patient until 11 December 1969. The discharge summary records:

This patient came of his own accord. He has a life long history of neurotic symptoms, and in recent years has committed several antisocial acts which brought him into conflict with the law - eg stealing money from his employer. He has had episodes of heavy drinking and these commenced while he was in the Navy in the service of which he remained 4 ½ years

He comes from a good family, but apparently his father administered little discipline. He is married with a young child, but the marriage has been in danger of breaking up.

It seems as if he became more unstable after he was involved in the collision of the Voyager and Melbourne 1964.

He made good progress in hospital and left hospital with some insight into the nature of his problems.

22. Despite the note of optimism contained in the last paragraph of these notes, the plaintiff stole a car less than three weeks later. On 6 April 1970 he was sentenced to three months imprisonment for breach of the recognisance and on 2 June 1970 he was sentenced to a further term of 18 months imprisonment for theft of the car. He claimed to have spent about 12 months in prison but also claimed to have been released in September 1970. This apparent discrepancy was not explained.

23. The plaintiff later said that his experiences in prison were frightening in that he witnessed and received bashings. He was also concerned at what he perceived to be homosexual threats and feared that he was being groomed to be "the bunny" who would bear the consequences for the smuggling of contraband goods. He claimed to have been in prison during the "1969 riots", though this claim does not seem to been consistent with the period of his imprisonment. He said that he continued to experience nightmares, which he initially said were about "anything and everything" but, upon being questioned more specifically, said were about the mess that he had made of his life. He denied that these problems were worse during imprisonment.

24. On 13 July 1970, the plaintiff was assessed by Dr Reid whilst serving a sentence of imprisonment for stealing a car. Dr Reid said that he appeared to have had psychiatric problems for some time, "certainly since joining the Navy in 1963". He had had marital problems at that time and had found service life incompatible with marriage. He had attempted to get out of the Navy firstly by applying for a free discharge and then by seeking to be discharged on psychiatric grounds. He was finally discharged as "services no longer required", which Dr Reid described as a polite way of referring to a dishonourable discharge. He said that the plaintiff apparently went absent without leave and drank to excess in order to obtain his discharge. However, after leaving the Navy he continued to drink excessively. In November 1969 he admitted himself to Kenmore Mental Hospital where he stayed for a period of six weeks and received group therapy. In that month he had had "severe worries" about his wife's health and the fact that he had no medical insurance and took to drinking more heavily than ever. He stole money from his employer and was placed on a bond. On 27 December 1969 he stole a car and was subsequently sent to prison. Dr Reid concluded that he showed no evidence of any psychosis. He said that he thought he was basically an insecure individual who at that time had plenty to feel insecure about. He was insecure about the perceived threat of homosexual approaches while in Goulburn Gaol, and had suspicions that he was being "groomed" to take the blame for the smuggling of contraband goods.

25. In a subsequent report of 3 August 1970, Dr Reid said that the plaintiff had claimed to have been very happy in the Navy until the time of the collision. He referred to his father's drowning and said that it was after this that he got into trouble with the Navy and had been driven to take action leading to his discharge.

26. He was subsequently employed in a variety of jobs but apparently continued to consume excessive quantities of alcohol. He was an in-patient at the Bathurst Hospital between 15 and 26 October 1987 due to abdominal pain and attributes this to his alcohol consumption, though the discharge summary refers only to pancreatitis. He also admitted himself to the Drug and Alcohol Unit in Wagga Wagga late that year.

27. He separated from his wife in 1993. Between 6 and 26 March that year he was treated at Calvary Hospital for alcoholism and he first contacted the Vietnam Veterans Counselling Service on 4 May 1993. On 15 August 1994 he was again admitted to Calvary Hospital, this time as a consequence of injuries, including fractures to two ribs, suffered some days earlier. He received further treatment at that hospital on 15 September 1994. He was divorced in April 1995. His sister-in-law died of cancer at about that time and his employment was "interrupted" because of his ongoing problems.

28. Between 2 and 14 June 1995 he was treated in the Canberra Hospital, Psychiatry Unit under the care of Dr Drew for problems related to alcohol, his marital breakdown and the breakdown of a subsequent de facto relationship. He was treated with anti-depressant medication and his condition apparently stabilised.

29. His brother died in January 1996. His relationship with his partner came to an end at about the same time and he was subsequently charged with threatening to kill her. He saw Dr Drew again on 5 February 1996 who, in a later report dated 23 October 1997, said that the plaintiff had again been depressed and that this had, in part, been associated with the death of his brother. Dr Drew said that his diagnoses had been "alcohol dependence" and "severe episodic depressive disorder". He also said that it was possible that the plaintiff's experiences related to the sinking of the Voyager had contributed quite significantly to his alcohol dependency but that he could not provide a firm opinion about this from his contacts with him "at this late stage". The criminal charge led to the plaintiff's referral to the Mental Health Tribunal which arranged for a further assessment. On 28 February 1996, Mr Jones, a clinical psychologist, provided an account of the history given to him by the plaintiff which referred to the fact that he had been on the Melbourne when it collided with the Voyager and added: "Mr Blunden suffered nightmares until he left the Navy in 1967 but was not treated and says that he has put the trauma out of his mind". Mr Jones expressed the following opinions:

Within the limits of this rapid contact, Mr Blunden does not present as having obvious acute psychiatric disturbance requiring immediate intervention.

Taking his history as a whole, there is a sense of a man in gradual decline in terms of his social/occupational standing, one who is lacking insight into his emotional problems and who is probably underestimating the degree of an alcohol problem.

It is possible that the incident occurred in the context of a dysfunctional stress reaction (recent stressors being two family deaths plus the relationship breakdown) and this perhaps should be a warning to Mr Blunden that he should undergo self-exploratory counselling.

30. On 20 March 1996 he applied to the Department of Veterans' Affairs for a disability pension, listing his disabilities as alcohol abuse, PTSD and depression, all of which he attributed to "service in SVN (South Vietnam)" and acute pancreatitis, which he attributed to alcohol abuse.

31. He suffered a back injury on 4 March 1996 and has not worked since.

32. On 22 May 1996 he was referred to Dr Brian White, a psychiatrist, who in a report issued the following day, referred to the distressing events in the plaintiff's life "including the death of his father by drowning in 1966 (sic) and the recent death of his brother". He said that the plaintiff's service in the RAN had included three (sic) trips on the HMAS Sydney ferrying troops to Vietnam that he had found distressing but that the major focus of his anxiety had been from his experience on the Melbourne at the time of the collision with the Voyager. He had had problems since 1964 and experienced recurrent nightmares, the most distressing of which related to the sinking of the Voyager, and at times had the intensity of flashbacks. Dr White diagnosed chronic PTSD with related Major Depressive Disorder and alcohol abuse (possible dependence). He suggested that the plaintiff drinks alcohol to help his insomnia and anxiety and expressed the opinion that this was largely brought on by his experience with the sinking of the Voyager. Dr White considered that the plaintiff was permanently unfit for work and recommended a TPI pension. His prognosis was that the condition would continue indefinitely, though its symptoms might be alleviated by treatment.

33. The plaintiff consulted his solicitors on 25 February 1997. Counsel's advice was sought on 27 February 1997 and provided on 14 April 1998. The delay has not been explained, though there may well have been a need to seek further information or evidence about aspects of the plaintiff's history before expressing a firm opinion. The proceedings were commenced one month later.

34. Sadly, the plaintiff's misfortunes continued whilst his lawyers proceeded to champion his cause. His partner at the time died in November 2002 and he received psychiatric treatment at hospital on at least four occasions between 2003 and 2005. His life has clearly been tinged by tragedy. If applications of this kind were determined by reference to an applicant's claim to sympathy, then his case would be compelling. However, that is not the test. I am required to determine whether it would be just and reasonable to extend the limitation period, having regard to the criteria specified in s 36 and the guidance provided by the High Court in Brisbane South Regional Health Authority v Taylor (supra). Counsel for both parties relied in part upon written submissions that addressed the relevant criteria in the order in which they appear in s 36 and it seems appropriate for me to follow the same sequence.

35. Mr Little submitted that there was a compelling case for the exercise of the statutory discretion in the plaintiff's favour because, whilst his life had been effectively ruined by the psychological illnesses that he had suffered, he had not known until recently that much of his misfortune and sadness had been caused by his fateful experience on the Melbourne. He had learned that he suffered from PTSD only when he received a copy of Dr White's opinion to that effect in 1996. Thereafter, he had moved reasonably quickly to obtain legal advice and assert his rights. The overall delay, whilst extensive, occurred without any significant fault on his part.

36. Much of it was, in fact, substantially unavoidable. The alleged injuries were, of course, psychiatric rather than physical. It was not suggested that this was a case in which earlier stress had produced actual illness only many years later. Indeed the plaintiff seemed to have been at pains to emphasis the immediacy of the onset of his symptoms as well as their severity. However, Mr Little did make the point that mere knowledge of a distressing event is not compensable and that the plaintiff could not have been expected to commence proceedings until he realised that his symptoms reflected a psychiatric illness: see Commonwealth v Dinnison (1995) 56 FCR 383. Furthermore, even if he had consulted solicitors shortly after the incident, he would probably have been advised that a claim could not be maintained against the defendant by a serviceman because that was the prevailing legal perception (see Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295) and it was dispelled only in 1982 (see Groves v The Commonwealth [1982] HCA 21; (1982) 150 CLR 113).

37. It was also submitted that the plaintiff's symptoms caused him to retreat into himself, drink heavily and not talk about the matter. He stressed in evidence that he had been unwilling to talk about it because he and other members of the crew had been ordered not to do so, and he claimed to have failed to mention it even to treating psychiatrists for that reason. I must say that he did not cope well with cross-examination on this issue and, whilst I am prepared to assume that the crew would have been told not to speak to the media about the incident, I do not accept his evidence that he refrained from mentioning it to treating practitioners, some of whom were Naval officers, for that reason. On the other hand, it does seems possible that the effects of the plaintiff's illness made it more difficult for him to make sound judgments about the need to obtain timely psychological assessment and, perhaps more relevantly for present purposes, timely legal advice.

38. Mr Crowe submitted that the length of the delay surpassed that of any case in which an extension of time had been granted by this Court and there can be no doubt that, even if adequately explained, the length of a delay is a relevant factor which must be taken into account on an application of this kind.

39. Mr Crowe also argued that I should not accept the plaintiff's explanation for the delay. He pointed out that the plaintiff had received psychiatric treatment on a number of occasions in the years following the collision and had not suggested that he had been experiencing symptoms of the nature, severity or regularity now claimed, and that his explanations for failing to do so should be rejected. Mr Crowe also pointed out that he had been seen by Dr Sakker and Dr McGeorge in 1966 against a background of his known involvement in the incident but, whilst referring to enuresis and expressing distress and anger for various reasons, he had not recounted any incidents of nightmares or other reactions allegedly related to the collision, other than his fear and hatred of the sea which had also followed the drowning of his father. Dr McGeorge, who was a Naval psychiatrist, said that he seemed at a loss to recount any real psychiatric symptoms. He clearly did display psychiatric symptoms during his treatment as an in-patient at Kenmore Hospital in late 1969, but was said to have had a life-long history of neurotic symptoms. Whilst the notes recorded that he had been more unstable after his involvement in the collision, that comment does not reflect the plaintiff's present case that all of his problems emanated from his experience at that time. As previously mentioned, it is also recorded that he left hospital with some insight into the nature of his problems and, as Mr Crowe pointed out, this assessment was made at a time that was still within the limitation period.

40. Furthermore, even if one were to discount the proposition that this could have provided a catalyst for further investigation of any psychological impact of the collision and accept that it was unlikely that he would have been encouraged to mount an action, given prevailing legal perceptions, there were subsequent events which should have brought home to him the need to commence proceedings much earlier. On 24 June 1993 he saw Mr Woodger, a psychologist, to whom he had been referred by the Vietnam Veterans' Association. The plaintiff informed him that he did not need counselling as he was no longer feeling so depressed. However, Mr Woodger's notes record that it had been clear to him that PTSD should be investigated as the plaintiff continued to experience nightmares and flash-backs. Mr Woodger stated that his alcohol consumption, depression and personality and marital problems were likely to be secondary and that he had briefed the plaintiff on what to expect from working with him on PTSD. He said that the plaintiff had reacted reasonably positively and had booked another appointment.

41. In a subsequent report dated 16 May 1996, Mr Scarborough, who then described himself as a trainee clinical psychologist, noted that psychological tests undertaken in June 1993 had indicated PTSD and moderate depression. Mr Scarborough applied further tests and noted that the plaintiff's level of agitation had appeared to interfere with his comprehension of some of the questions. Mr Scarborough concluded from the interview and test results that the plaintiff appeared to have been suffering from a number of problems, including PTSD, and recommended that further tests be conducted to confirm this diagnosis.

42. Mr Crowe also referred to the other psychiatric assessments that had been undertaken at various times and submitted that, viewed overall, the delay was most likely attributable to the fact that the plaintiff had simply not suffered from the symptoms now alleged and that what symptoms he had experienced had been attributable to other stressful experiences in his life. Mr Crowe also argued that, even if the allegations were accepted at face value, it would still be apparent that proceedings could have been instituted much earlier.

43. I regret to say that I did not find the plaintiff an impressive witness. It was impossible not to feel sorry for him because he is clearly a man who has suffered much and for whom the future must appear very bleak. It was also understandable that he might, in retrospect, have come to see his involvement in a single tragic incident in his youth as an explanation for the unhappy and somewhat dysfunctional life that followed. Yet the, perhaps subconscious, reinterpretation of his life in this manner seemed to involve recreating some events in a manner that did not accord with contemporary documents and his attempts to explain the inconsistencies were not convincing. Indeed, some of his answers in cross-examination seemed tinged by desperation.

44. When asked whether it had been true that the collision and the drowning of his father had made him fear and hate the sea, he replied, "to a degree, yes". He subsequently conceded having told Dr Bryant in 1999 that he had only said that because he had wanted to get out of the Navy. When pressed about whether that answer had been true, he said that he had not been out on a boat since 1964. When asked whether he was sure about that, he apologised and indicated that he had been out on the Moruya River. When asked whether he was telling the court that he had been so fearful of the sea since 1964 that he never went out to sea again, he confirmed that that was correct. It was put to him, predictably enough, that he had made two trips to Vietnam on the Sydney in 1965 and 1966 and he then sought to explain his earlier answer by saying that he had not been talking about being sent to sea by the Navy. He was then asked whether he was claiming that he had never otherwise been to sea since 1964 and responded, "I have been in a river, I have never been to sea". Mr Crowe then put to him that he had worked on a fishing trawler for about six months in 1972 and had had to go out to the open sea during that period. The plaintiff admitted that and said that he was a bit confused. The following exchange then occurred:

Well you did that, Mr Blunden, because you don't fear the sea at all, do you?---I do.

I want to suggest to you that what you told Dr Bryant is true, that is to say you only told the Naval medical people that you feared the sea because you wanted to get out of the Navy, that was the truth wasn't it?---Possibly, yes.

45. The plaintiff later explained that his statement to Dr McGeorge about having thought about his father's drowning all the time had not been true, explaining that it had just been another excuse to get out of the Navy. On the other hand, he claimed not to have mentioned the nightmares that he had experienced after the collision because he had been told not to speak to anyone about the incident. Given that Dr McGeorge was a Naval officer with a rank of Commander, this seemed entirely implausible and, after being pressed about this explanation for some time, he changed tack, asserting that he had chosen not to mention any of these symptoms because he was fearful of receiving electro-convulsive therapy. He later conceded that he had told Dr Reid that he had gone AWOL and drunk to excess in order to obtain a discharge from the Navy, but claimed that that had also been untrue. When asked whether he had told Dr Reid the truth about why he had drunk to excess, he said that he had said "nothing about this to anyone because I was under part of the Secrecy Act from the Navy to say nothing to no-one at all". When pressed about this, he said that "a direct order is a direct order", and later added that, as far as he was concerned, an order was "part of the Secrecy Act". He also conceded that he had told Dr Reid that the theft from his employer in 1970 had been committed to obtain money to pay for his wife's medical bills, and that this had been untrue.

46. Whilst none of these matters might, of itself, have been damning, I had the opportunity of assessing his credibility under cross-examination in the witness box for the better part of a full day's hearing and found much of his evidence unconvincing. Whilst I am conscious of the fact that he does not need to establish his case for final relief at this stage, I must say that I was unable to wholly accept his explanations for not having raised the claimed psychological symptoms earlier.

47. On the other hand, I accept that his capacity to identify a psychological component to his problems and to relate them to the collision may have been limited and, as I have mentioned, that if he had sought legal advice in the years immediately following the incident, he would probably have been advised that he could not maintain a claim against the Commonwealth.

48. Mr Little conceded that the defendant would suffer some measure of prejudice if the application were granted. He pointed out, however, that in assessing whether the degree of prejudice was sufficient to make a trial unfair, it had to be remembered that fairness was, itself a matter of degree, and that the concept of a fair trial did not mean one that was perfect or ideal: McLean v Sydney Water Corporation [2001] NSWCA 122 (20 April 2001) at [27]. As mentioned earlier, Mr Little maintained that the defendant's contentions as to the extent of the prejudice that it might suffer if the plaintiff were permitted to pursue his claim were exaggerated. There was no issue as to the breach of duty alleged and the only viable issues were whether the plaintiff had suffered a psychological illness as a consequence of that breach and, if so, what measure of damages would be appropriate compensation. While some evidence may have been irretrievably lost, the investigations undertaken on the defendant's behalf had unearthed a great deal of material that was relevant to these issues, and the defendant still had the opportunity of requiring the plaintiff to attend for psychiatric assessment by a nominated expert. Hence, it was argued, I should not conclude that the degree of prejudice was sufficient to prevent a fair, though perhaps not ideal, trial of the matter.

49. Mr Crowe submitted that these submissions reflected a failure to acknowledge the gravity of the prejudice that would inevitably be caused by the delay. He submitted that prejudice arose both in relation to causation and the assessment of damages. He pointed out that Dr White had referred to the six criteria for the diagnosis of PTSD as:

* persistent avoidance of stimuli associated with the trauma, and/or numbing of general responsiveness (not present before the trauma);

* the disturbance causes clinically significant decrease or impairment in social, occupational or other important areas of functioning.

50. Mr Crowe argued that whilst the plaintiff would bear the legal onus of proof in relation to these matters, once he had given evidence of the kind he gave on this application, the evidentiary onus would almost certainly shift to the defendant who would have to "show, by evidence and argument, that the patient should not recover damages": see Chappel v Hart (1998) 195 CLR 232 per Kirby J at [93], point 8; see also Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649; McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1 at 6; Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074 at 1087 & 1090; March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 514. He submitted that the difficulty of doing so, even if recognised since the proceedings were commenced in 1998, should not be underestimated. Mr Crowe pointed out that a somewhat similar claim had been considered by Gillard J in Cavenett v The Commonwealth of Australia [2005] VSC 333 though, in that case, the plaintiff had remained in the Navy for 20 years after the collision between the Melbourne and the Voyager and substantial evidence was available as to his behaviour and state of health at various relevant times. His Honour's judgment had demonstrated the importance of evidence as to these matters particularly during the years immediately following the collision. In the present case, similar evidence is not available and the Court would be substantially dependant upon the plaintiff's own evidence as to his recollection of the events in question.

51. The extent of the likely prejudice is heightened by evidence of a number of other factors which might well have been responsible for the symptoms that are said to have been exhibited, and are relied upon to establish the causation of PTSD and other psychological illnesses allegedly sustained as a consequence of the collision. Some potential causes of psychological stress had arisen even before the collision occurred.

52. The first is the sexual assault that he sustained when a young boy. The entry made in the clinical notes of the Drug and Alcohol Unit at Calvary Hospital in Wagga Wagga on 25 March 1993 records that he had disclosed that abuse and said that he had just remembered the event. He had recorded that he was numb, sad and angry. A further entry made two days later records his intention to seek counselling for sexual assault issues. This was not referred to by Dr White in his subsequent report of 23 May 1996 and he may have been unaware of it. In fact, there does not appear to be any expert evidence directed towards the psychological impact of these assaults and any causal relationship to the psychological illnesses from which he suffers. There is, of course, no reason to suppose that whatever psychological mechanisms may have prevented him from recalling the incident earlier would have protected him from lasting damage.

53. There is also evidence that the plaintiff grew up in a very strict household with a controlling mother and a father who did as he wanted. An entry in the Calvary Hospital notes made on 13 March 1993 records, "mother was very religious (addicted) and very strict. Can never remember being cuddled by mother".

54. Furthermore, despite his claims to the contrary, there is some evidence of pre-existing problems. His clinical notes taken at the Calvary Hospital in 1993 record, "first drink at age 13, very heavy since age 17". Notes taken by the psychiatric unit at Woden Valley Hospital, where he was treated in 1995, record that he had "a 35 yr h/o (history of ) alcohol abuse, five stubbies/day". On either account, his heavy drinking would have commenced prior to the collision. The Navy's psychological assessments undertaken on his entry to the Navy in 1963 records that he was a rather melancholy person. Dr Sakker recorded that he had been in trouble constantly during his time in the Navy and noted a history of enuresis, though it was not clear when this started. In 1973, Dr Reid recorded that he appeared to have had psychiatric problems for some time, certainly since joining the Navy in 1963.

55. There is an obvious potential for error or imprecision in notes recording a psychologically ill man's recollection of when the particular problems emerged, but the potential impact of being sexually abused as a ten year old, whilst being raised by a strict mother who denied him affection, cannot be readily dismissed. Yet, it would, of course, be difficult to imagine that any substantial evidence as to his emotional equilibrium between then and the time he joined the Navy could have been obtained, even in 1998.

56. There are also many subsequent events that seem to have had a significant emotional impact upon him.

57. The death of his father occurred only months after the collision and he subsequently made various comments about the impact of this event. In 1966 he told Dr McGeorge that he thought about his father drowning all the time. As previously mentioned, he said that he had had a fight with him about a week earlier and had not had the opportunity to "patch things up" before he died. He also said that if the Melbourne had not been delayed by bad weather, he would have been with him at the time. Dr Reid reported in 1970 that the plaintiff had apparently been on very close terms with his father and was extremely disturbed about his death.

58. Other aspects of his Naval service also apparently caused him significant distress. When interviewed by Mr Scarborough in 1966 he said that riots in Singapore in 1964, "taking the guys to Vietnam", and being spat on back in Australia were among the most traumatic events in his life.

59. As previously mentioned, he was exposed to violence and felt threatened whilst in prison. He told Dr White that during this time he had been "scared shitless". There is also evidence of some ambivalence about his sexuality and, perhaps more importantly, about marital problems that, he told Dr Reid in 1970, he coped with by drinking.

60. A combination of potential factors emerge from notes of discussion with him during treatment at the Calvary Hospital in Wagga Wagga in March 1993. He provided an account of growing up in a very strict household and having had a year "free" before joining the Navy, which he discovered "was the same pattern as the family". He mentioned that he had been in the Navy for a few months when the collision occurred and that he had lost mates on the Voyager. Shortly afterwards his father died at sea and he had felt guilty that he had not been with him. He said he "realised this gave him an excuse to drink".

61. Subsequent entries in those notes record that he had described himself as a "black sheep". He had married 27 years earlier but had "betrayed his wife by having other women and not being around". He was scared of intimacy and remorseful about his relationships. Another note recorded that he needed further work on physical and emotional loss issues, and that guilt over his father's death and his wife's non-acceptance of treatment for cancer both needed addressing. A further note recorded references to his wife's infidelity twenty years earlier, and his comment that he "coped by drinking ever since".

62. The subsequent deaths of people close to him, particularly his brother, may also have had a significant impact.

63. Whilst, as Mr Little pointed out, the evidence referred to by Mr Crowe suggests that the defendant could present a substantial case in answer to the plaintiff's claim, it also illustrates some of the problems that would inevitably be encountered in seeking to address such a claim after such an extensive delay.

64. The difficulties created by the unavailability of potential witnesses and a likely inability of others to recall relevant events after so long, are aggravated by the paucity of records, particularly in relation to the plaintiff's employment over the years. Furthermore, the utility of some of the records that do exist may be materially diminished by his claims that some of his recorded statements as to the cause of his distress and other symptoms had been lies.

65. As previously mentioned, I also found the plaintiff to be an unreliable witness, though I accept that this may have been at least partially attributable to the effects of long-term alcohol dependency, psychological illness, subconscious reconstruction in an attempt to make sense of his life or a combination of these factors. As the New South Wales Court of Appeal pointed out in Commonwealth v Diston (unreported) NSWCA 51 (22 May 2003) per Sheller JA at [51], such unreliability might tell against him at the trial of the action if time were extended but what is relevant is that his unreliability makes it more important that there be material against which the plaintiff's claims can be tested.

66. The plaintiff's counsel made a number of submissions under this heading, some of which were really directed to other questions such as whether a medical witness would, in any event, remember a consultation which took place 40 years ago. I might mention, in passing, that this may be only marginally reassuring since the impact of such an extended delay on the memories of potential witnesses is one of the sources of potential prejudice raised by the defendant. In any event, this point is not directly relevant to the criterion raised by par 36(3)(c).

67. Of potentially greater significance was an allegation, made in written submissions for the plaintiff, that the defendant had destroyed documents, even though it was well aware of the possibility of PTSD or other psychiatric conditions arising in those involved in the collision and later knew that claims were being brought based upon such illnesses. This allegation appeared to raise a possibility that the plaintiff might be entitled to rely upon the application of the principle omnia praesumuntur contra spoliatorem: see The Ophelia [1916] 2 AC 206 at 229-230 and Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367 at 375. However, this proposition was not specifically advanced, and no attempt was made to identify particular documents or types of documents said to have been destroyed, let alone direct me to any evidence of their destruction or suggest what adverse presumptions could be drawn from it. In any event, I would have thought that little, if any, weight could have been placed upon the mere fact that employment records had been discarded at some indeterminate time during the 34 years that had elapsed between the collision and the commencement of proceedings.

(d) The duration of the plaintiff's disabilities

68. It does not seem to be disputed that the plaintiff has significant disabilities where the issues are about their nature, severity and causation.

(e) Whether the plaintiff acted properly and steps taken to obtain expert advice

69. Mr Little submitted that the plaintiff did act reasonably promptly, once he became aware that the symptoms that he had been experiencing amounted to an injury and that it was related to the collision. He consulted his solicitors only about eight months after Dr White's diagnosis and, given the difficulties inherent in mounting a case of this nature after such an extended period, there was no basis for a finding that the matter had not been pursued with reasonable diligence.

70. On the other hand, Mr Crowe pointed out that the plaintiff had told Dr Bryant that he first became aware of the issue of PTSD in 1992 when told about it by a psychiatrist in Canberra. He said that Mr Woodger's notes also reveal that the possibility that he had been suffering from it was raised with the plaintiff in 1993 and that counselling was suggested at that stage. He submitted that there had been unreasonable delay since that time. Whilst that may be true, I do not regard this as a significant factor in the context of the overall delay that occurred prior to 1998.

71. It may be true, as Mr Little's analysis contends, that the defendant has not been deprived of all means of defending the aspects of the plaintiff's claim in issue. However, the fact that a party has not been left entirely defenceless does not warrant ignoring the prejudice that it may suffer by being denied access to possibly decisive material that might have been available to it had the proceedings been commenced within the limitation period.

72. Quite apart from the presumptive prejudice inevitably raised by the extensive delay, the defendant can point to the loss of substantial evidence that might have cast light on the issues of causation and damages. There are some records of his medical and psychological condition but the records of any treatment he may have received prior to 1979 which was, of course, some 15 years after the collision, are sparse. There are few records of any of his employers and no taxation returns in relation to such employment he may have undertaken prior to the late 1980's. Furthermore, the defendant has been unable to locate many fellow sailors who may have been able to observe his behaviour before and after the collision and those few who have been located now have little or no memory of relevant matters.

73. In these circumstances I am unable to be satisfied that the defendant's position has not been significantly prejudiced by the extensive delay in commencing proceedings. There are a number of issues which I think it would be difficult, if not impossible for the defendant to now address. For example the suggestion that he might have had psychiatric problems at least since joining the Navy in 1963 cannot now be explored by reference to medical records, his employment history or the evidence of people who knew him. The defendant would be similarly hampered in any attempt to explore other possible causes of his alcohol dependence such as factors related to his upbringing or emotional responses to other incidents. It would also be difficult for the defendant to attempt to disentangle any psychological injury sustained by his response to the collision from any other psychological harm sustained as a result of other factors such as his guilt over the death of his father, his service in Vietnam or being bashed in jail.

74. I am conscious of the fact that, if an extension of time is not granted, the plaintiff will forever lose his opportunity to maintain a claim against the defendant for damages to compensate him for the illnesses that he claims to have suffered as a consequence of the collision and its aftermath and the gravity and duration of the alleged incapacity. That is a matter that must obviously be given substantial weight, though his prospects of ultimately succeeding in such a claim, even if leave were granted, would seem limited. I have also taken into account that the plaintiff's alcohol dependency and psychological condition may substantially explain the delay and that, even if he had sought legal advice prior to 1981 he would almost certainly have been advised that he did not have a viable claim. On the other hand, despite Mr Little's able submissions to the contrary and the limited nature of the issues in dispute, it seems inescapable that there would be significant prejudice to the defendant if I were to accede to the application. Indeed, I am unable to be satisfied that a fair trial of the action would be possible after the passage of such a lengthy period of time.

75. Whilst I have balanced the competing considerations raised by counsel, I have ultimately been unable to be satisfied that it would be just and reasonable to extend the limitation period as sought. Hence, the application must be dismissed.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the plaintiff: Mr G Little SC with Mr J L Sharpe

Solicitor for the plaintiff: Pamela Coward and Associates

Counsel for the defendant: Mr R Crowe SC with Mr A Berger

Solicitor for the defendant: The Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Parties

Cases Cited (10)