Blyth v Commonwealth of Australia

CATCHWORDS : Limitation of actions - claim for damages for personal injury - application for extension of limitation period - whether just and reasonable to extend time - the issue of prejudice.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Diston [2003] NSWCA 51 CRA Limited v Martignago (1995) 39 NSWLR 13 Dedousis v The Water Board (1994) 181 CLR 171 Drayton Coal Pty Limited v Drain (unreported, NSWCA, 22 August 1995) Groves v The Commonwealth (1981-82) 150 CLR 113 CASES CITED : Harris v Commercial Minerals Limited (1996) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128 McLean v Sydney Water Corporation [2001] NSWCA 122 Parker v The Commonwealth of Australia (1964) 112 CLR 295 Smith v Commonwealth of Australia [2004] NSWSC 873 Sydney City Council v Zegarac (1998) 43 NSWLR 195 F.J. Walker Limited v Webber (unreported, NSWCA, 16 November 1989)

Lester Kevin Blyth (Plaintiff) PARTIES : The Commonwealth of Australia (Defendant)

M.J. Joseph SC/K. Sant (Plaintiff) COUNSEL : M. Dicker/I. McLachlan (Defendant)

James Taylor & Co. (Plaintiff) SOLICITORS : Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20247/00 LESTER KEVIN BLYTH v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: The plaintiff, Lester Kevin Blyth, moves the Court for an order pursuant to s 60G of the Limitation Act, seeking an extension of time for pursuing a claim that arises out of the collision between the "Melbourne" and the "Voyager". The application was expressed in the alternative as being for an order under s 58 and, further, for an order pursuant to s 60C of the Limitation Act. However, ultimately the application was pursued in reliance upon ss 60G and 60I of the Limitation Act. 2 These sections are to be found in Pt 3 Div 3(3) of the statute. The sub-division provides a procedure for the discretionary relief of the limitation period where the plaintiff "was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time": s 60F. Section 60F provides that the procedure is available for causes of action accruing on or after 1 September 1990 and also, by the operation of Sch 5, for causes of action that accrued before that date. 3 Section 60G provides the Court with a discretion to order that the limitation period for the cause of action be extended if it is determined that it is "just and reasonable" to do so. 4 Section 60G has to be read in conjunction with s 60I(1), which is in these terms: "(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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)." 5 On 15 June 2000 the plaintiff filed his statement of claim in this cause and on the same date he filed the notice of motion for an extension of time. 6 At the time of the collision in February 1964, it was generally perceived that a serviceman could not sue the Commonwealth in negligence for personal injury allegedly suffered in peacetime: see Parker v The Commonwealth of Australia (1964) 112 CLR 295. In his written submissions, Mr Dicker accepted that that perception was entertained. However, in Groves v The Commonwealth (1981-82) 150 CLR 113 it was held that an action in negligence was maintainable against the Commonwealth by a serving member of the armed forces for harm suffered by the negligence of a fellow member of the armed forces whilst on duty in peacetime. 7 In order to succeed on the application, the plaintiff must first satisfy the Court that the issue arising under s 60I(1)(a)(i) or (ii) or (iii) is to be determined in his favour. If the plaintiff satisfies the Court on one of those issues and passes through the gateway provision, then the plaintiff must further satisfy the Court that it is "just and reasonable" to extend the limitation period under s 60G(2). Prima facie, the relevant limitation period expired on 10 February 1970, six years after the collision between the two vessels. 8 The plaintiff moves on his affidavit sworn on 13 May 2003, an affidavit on which he was extensively cross examined. Opposing the application, the defendant relied upon affidavits of Donna Robinson, the solicitor with the conduct of the matter on the defendant's behalf. Ms Robinson swore affidavits dated 12 March 2004, 22 July 2004 and 7 February 2005. Ms Robinson was cross examined on her affidavits. Three investigators retained by the defendant gave evidence concerning the outcome of their investigations in endeavouring to discover the whereabouts of witnesses who may be able to give evidence relevant to the issues in the cause. Those investigators were Peter Maxwell, Robert Tepper and Dennis Campanella. 9 In addition to the affidavits and oral evidence from the above sources, a very considerable body of documentary material was introduced into evidence. I do not intend in the course of this judgment to refer to all of that material although, of course, it has been necessary for me to consider it. 10 The plaintiff was born on 29 December 1944 and he enlisted in the Royal Australian Navy on 12 February 1962, so that he had served for two days short of two years when the collision between the "Melbourne" and the "Voyager" took place. The plaintiff joined for a term of nine years, and he said it was his intention to make the Navy a life-long career. In fact, the plaintiff was discharged from the Navy on 11 September 1964, some seven months after the collision. The plaintiff's affidavit records changes that the plaintiff asserted he noticed about himself after the collision, and it is his contention that because of the collision he lost faith in the Navy and those responsible for giving orders. He said he left the Navy because he no longer wished to remain in it, and that change in attitude he seeks to attribute to the effects of the collision upon him. 11 The case which the plaintiff would seek to make in the event that the extension of time is granted is that by reason of the defendant's negligence he developed post traumatic stress disorder, and he became unable to continue in the Navy and lost the wages and the pension he would have received had he continued to serve. It is contended that had he continued to serve, he could have expected promotion and with it increased pension benefits. After he left the Navy, the plaintiff never obtained any trade qualifications and the claim for loss of earnings and loss of earning capacity is a very substantial one indeed. 12 The plaintiff at the time of the collision was classified as a mechanical engineer (ME2), although not a qualified tradesman. He said that he was on watch in the engine room of the "Melbourne", in control of the stern throttle, when the impact occurred. He described in his affidavit his experience at the collision time and his fear, working below the waterline. Before the collision whilst he was still at his station, the plaintiff said that the order came down from the bridge for "Full steam astern", and he believed this to be an incorrect order. He said he questioned the mistake but eventually went to shut the valve. Before he was able to reach it, the collision occurred and he was thrown violently against the bulkhead. He said he was terrified for his life and for the lives of his mates. Subsequently he saw some of the "Voyager" survivors after they were taken on board the "Melbourne". 13 The plaintiff described his change in attitude as a serviceman after the collision. He said he became rebellious and that he drank heavily. 14 In para 13 of his affidavit the plaintiff referred to his decision to leave the Navy: "THAT I knew I had to get out of the Navy. I hated the Navy for what had happened, my confidence in the Navy had entirely collapsed. I wrote to my father from jail but my letters were censored so I couldn't say how bad things were for me. When I got out of jail I wrote and told him what had happened and asked him to help me get out of the Navy. He agreed to help me and pulled some strings and got a Member of Parliament on his side and claimed he needed me to help work his settlers block. I was given a free discharge after only two and a half years in the service. I was relived [sic] to be away from the Navy but I felt terrible about what had happened to my life. I became distrustful of authority and rebellious. I argued with persons in authority. I was having nightmares. I couldn't sleep properly. I was on edge, I was confused and I felt guilty and anxious all the time. Before the collision I was very happy and content with the Navy. I only got into a bit of trouble once when I slept in late. There were character and efficiency assessments carried out on the 31st December 1963 which indicated that my character was very good and my efficiency, satisfactory. After the collision I believe my character assessments carried out on the 11th September 1964 showed a marked deterioration in my character and efficiency. My character was assessed as only fair and my efficiency was less then [sic] satisfactory. My change in attitude is reflected in the deterioration of my character and efficiency assessment." 15 Then, in para 17 the plaintiff said that he asked for a free discharge on the grounds that his father needed his help on his thirty acre property. Within that paragraph of his affidavit, he referred to a document to which I shall make further reference later, which document deals with the plaintiff's application. The plaintiff deposed in para 17 to his decision to leave the Navy as quickly as possible. He said that he asked for a free discharge on the grounds that his father needed his help on his thirty acre property but went on to say: "Although my father did need some assistance on his block, in part, I was using the reason to help my father as an excuse to get out of the navy. The real reason I wanted to get out of the Navy is that I had had it, I knew I could no longer continue in the RAN after the collision. I thought my fears of going back to sea, my edginess, irritability, mood swings, anger, loss of confidence, nightmares, feeling uptight were all a normal reaction to the collision and I thought that in time I would gradually settle down and that I would just have to cope with these feelings the best way I could. I didn't think that I had a psychiatric injury as such." 16 It was on 26 August 1964 that the plaintiff made a successful "free" discharge application and his service thereby ceased. I will return to this later when considering the issue of prejudice.

The requirements of s 60I(1)(a) 17 Mr Joseph submitted that the plaintiff passed through not one but all three of the gateway provisions expressed in s 60I(1)(a). Mr Dicker submitted to the contrary that the plaintiff passed through none of them. It is convenient firstly to address Mr Dicker's submissions. 18 Mr Dicker submitted that the plaintiff's affidavit showed, if the plaintiff's version of events was to be accepted, that after the collision he had a very substantial change in character and attitude to the Navy, that his confidence in the Navy had collapsed and that he hated the Navy. Then the plaintiff contended that he had nightmares and felt guilty and anxious, that he was terrified at sea, that he got himself drunk to help himself to sleep and that there were other changes in his mood. In cross examination, the plaintiff said that he was confused and angry and that he felt claustrophobic. He started having sleepless nights, he became anxious, he had nightmares and found himself in trouble with the authorities. He said he had emotional problems and anxiety problems. He was depressed and very unhappy and experienced serious problems in coping with the Navy. He was asked these questions and gave these answers (T 45): "Q. Your evidence is the problems you now have are the same as you ones you had in 1964? A. I don't recall them being that bad then, in 1964.

Q. Do you say they have got worse since leaving the Navy? A. No, I wouldn't say that.

Q. Better since leaving the Navy? A. Up and down. Sometimes good, sometimes bad.

Q. So your evidence is the problems you have now are similar to the ones you had in 1964? A. I suppose so. Like I said, I didn't think I had any serious problems." 19 Based upon the plaintiff's evidence reviewed, Mr Dicker submitted that the plaintiff had an awareness in 1964 of the changes in his wellbeing and that the Court should conclude that his awareness amounted to knowledge that a personal injury had been suffered by him for the purposes of s 60I(1)(a)(i). It was submitted that it mattered not that he did not at that time regard himself as having a psychiatric injury as such. He must have been aware that he had suffered a personal injury, including depression with anxiety and emotional problems. 20 According to the plaintiff, it was not until after he had consulted Professor McFarlane and he had seen his reports dated 19 March and 21 June 2002 that the plaintiff became aware of the injury he had suffered. Earlier, in the period October to December 1998, the plaintiff said he met a man at American Beach and he had a conversation with him. This person said that he had been on the "Voyager" and had suffered injury and had received compensation. He advised the plaintiff to see the solicitors who he has since retained to act for him. Having seen those solicitors, the plaintiff was examined by Dr Gilchrist, who informed him he had depression, and by Professor McFarlane, who first diagnosed him to be suffering from post traumatic stress disorder. According to the plaintiff, it was only after he had seen Professor McFarlane's reports that he appreciated the true nature and extent of his problems. 21 In the extract from para 17 of the plaintiff's affidavit above set out, the plaintiff said that he thought his concerns there expressed were all a normal reaction to the collision. Mr Joseph submitted that whilst the plaintiff may have attributed what he was experiencing to the collision, he did not understand it to be anything other than a normal reaction to the disaster. 22 I accept the evidence that the plaintiff gave as to his lack of knowledge that he had suffered injury, and I accept the submission made by Mr Joseph as to s 60I(1)(a)(i). Accordingly, I find in the applicant's favour on this first gateway issue. 23 Turning to s 60I(1)(a)(ii), it was not enough to constitute awareness for the plaintiff to appreciate he had emotional issues in the absence of an appreciation that this was other than a normal reaction to what had taken place. 24 What is relevant when considering the gateway provision is the plaintiff's actual awareness: see Harris v Commercial Minerals Limited (1996) 186 CLR 1 at 9-10. 25 In CRA Limited v Martignago (1995) 39 NSWLR 13 at 20 Clarke JA said: "In the context of s 60I there is no reason to import concepts involving the hypothetical reasonable man. Subsection (1)(a) is concerned solely with the actual knowledge of the applicant and s 60I(1)(a)(ii) poses a factual question which cannot be answered by some universal or over-riding test." 26 His Honour proceeded then to refer to what Meagher JA had said in F.J. Walker Limited v Webber (unreported, NSWCA, 16 November 1989), remarking as to that decision: "On the other hand I would respectfully agree with Meagher JA that an applicant may not know the medical description or diagnosis of his or her condition and yet be unable to establish that he is unaware of the nature and extent of his injury." 27 Continuing to address s 60I(a), his Honour proceeded: "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 ether 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. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow (for example, osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention." 28 Here, notwithstanding the contrary submissions urged by Mr Dicker, I accept, as Mr Joseph submitted, that the plaintiff did not appreciate that the symptoms he was experiencing constituted an injury and still less did he appreciate the nature or extent of his injury. I am satisfied that he only became aware of this after he saw Professor McFarlane on 2 May 2001. Hence, the plaintiff succeeds on the issue arising under s 60I(1)(a)(ii) also. 29 As I earlier made clear, it suffices for the plaintiff to meet the requirements of only one of the provisions found in s 60I(1)(a)(i), (ii) or (iii). It is therefore unnecessary for me to consider s 60I(1)(iii) discretely. However, I am of the opinion that the plaintiff passes through this gateway as well and that he was not only unaware that he had suffered personal injury but he was also unaware of the acts and omissions that caused the collision. Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions: see Dedousis v The Water Board (1994) 181 CLR 171 at 181 and Drayton Coal Pty Limited v Drain (unreported, NSWCA, 22 August 1995) and in particular the judgment of Gleeson CJ at p 5. It is not suggested that the plaintiff became aware of the precise acts or omissions which caused the collision. 30 Section 60I(1)(b) must be considered. The plaintiff's application is to be treated as having been made on the date his notice of motion seeking the extension of time was filed. Both the statement of claim and the relevant motion were filed before the plaintiff saw Professor McFarlane. Ought the plaintiff to have become aware of all three matters listed in s 60I(1)(a)(i)-(iii) earlier than the three year period for which s 60I(1)(b) provides? 31 Dr Gilchrist told the plaintiff he had depression but did not express a diagnosis of post traumatic stress disorder. Indeed, the plaintiff had consulted Dr Gilchrist with abdominal symptoms, on referral by the plaintiff's general practitioner. The evidence does not disclose that the plaintiff had received any psychiatric treatment or that he had seen any psychiatrist before he saw Dr Gilchrist in 2001 and the consultation with Dr Gilchrist was after the application was commenced. There was evidence that he saw Dr Bawden in 1982 but that was for marriage counselling. On the evidence, I accept that the plaintiff did not appreciate that he had a psychiatric condition until so advised by Professor McFarlane or that the condition then diagnosed was related to the "Melbourne"-"Voyager" collision. 32 Professor McFarlane opined in his report dated 21 June 2002: "…while Mr Blyth is likely to have been aware of his symptoms for many years, he would not have defined these as a disorder. Many people live with their distress as part of their ongoing suffering and hardships of life, rather than conceptualising them as illness." 33 I accept on the evidence before me that the plaintiff fits into this category. I consider that Mr Joseph is correct in his submission that a mental illness such as that diagnosed by Professor McFarlane is to be distinguished from a physical injury. This case is to be distinguished, for example, from F.J. Walker Limited v Webber where the court was concerned with a back injury and from Martignago (supra) where the court was concerned with an injured neck. Nor is the court here concerned with some other form of chronic physical impairment. 34 For the reasons I have expressed, I am of the opinion that the plaintiff has satisfied the requirements of s 60I. This brings me to s 60G. Is it just and reasonable in the circumstances of this case to make the order sought by the plaintiff for the extension of the limitation period? It would not be just and reasonable to grant the extension if there cannot be a fair trial, although for a trial to be fair it is not required to be ideal: see McLean v Sydney Water Corporation [2001] NSWCA 122 at para 27 and Holt v Wynter (2000) 49 NSWLR 128 at para 79.

The requirements of s 60G(2) 35 On this application, the focal issue for the purpose of s 60G has been the issue of prejudice: see as to this Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Holt v Wynter (supra); and Commonwealth of Australia v Diston [2003] NSWCA 51. By reason of the effluxion of time since the collision, there must be a presumption of some prejudice in this case even allowing for the fact that the circumstances of the collision have been fully investigated. It has to be borne in mind that more than forty-one years have elapsed since the disaster occurred. 36 The defendant does not here, however, rely solely upon presumed prejudice. It has put before the Court a body of material upon the basis of which it submits that the defendant would be significantly prejudiced in preparing for and in conducting a trial if the limitation period is extended in this case. 37 In Diston (supra), Sheller JA, with whose judgment the other members of the court agreed, said this (at para 48): "Thus it seems to me that a finding that there is a real possibility of significant prejudice to a defendant will lead to the application being refused though it does not follow that in the absence of that possibility the application will be necessarily granted; Holt v Wynter at 147 para 119; Parsons v Doukas [(2001) 52 NSWLR 162] at 163 and 190." 38 Is there a real possibility of significant prejudice to the defendant in the event that this application is granted?

The issue of prejudice 39 In her affidavits, Ms Robinson has dealt extensively with areas in which it is claimed that the Commonwealth would be prejudiced in the preparation and presentation of a defence to the plaintiff's claim in the event that his application is granted. Mr Dicker has dealt with those areas in which prejudice is claimed in his written and oral submissions. I commence with these issues:

(i) Was there a change in the plaintiff's attitude towards Naval authority after the collision?

(ii) Did the plaintiff enjoy good health prior to the collision, as he contends?

(iii) Did the plaintiff's intention to pursue a Naval career change after the collision because of its effects upon him? 40 Plainly, it is the plaintiff's contention that these various issues should be resolved in his favour. Proof of each of these matters is important because not only does each issue have a bearing upon the proof of the development of post traumatic stress disorder but they each concern the proof of the plaintiff's claim for loss of earnings, loss of earning capacity and loss of Naval pension rights. Conversely, it is important to the defendant to prove pre-existing health problems (if any), any lack of discipline prior to the collision, and that the decision to leave the Navy was not for the reason claimed by the plaintiff. 41 The defendant has submitted it faces prejudice in addressing each of these various issues. 42 The plaintiff asserted in his affidavit that he was in good health before the collision but he acknowledged in cross examination that he had complained about back problems prior thereto. Indeed, he said (T 19) that he had "a lifetime of back injuries", although he dated the onset of trouble from the age of sixteen. On this issue I note that Dr McGeorge obtained a history on 24 April 1964 that he had "trouble with his spine since birth", noted by the doctor as an apparent reference to his kyphosis. At the time that he left the Navy the plaintiff disclosed that he had "dislocated" his back when he fell down a ladder in October 1962 and that there was further injury when he slipped on a catwalk on the "HMAS Melbourne" in October 1963. Both those events were, of course, prior to the collision. Medical records that are available to the defendant indicate that there were additional back episodes in September 1962 when he fell from a hammock, and when he "ripped" his back while lifting a hatch. There are other daily medical records in the pre-injury period concerning the plaintiff's back and complaints about his back persisted in the relatively short period of service after the collision. 43 The defendant claims to be prejudiced in establishing the significance of the pre-collision back complaints as the doctors who, to the defendant's knowledge, saw the plaintiff are either dead or have no recollection of his case. However, what the defendant does have are medical records relating to the plaintiff's back for the period of the plaintiff's Naval service. Viewed in isolation, I would not regard the loss of the doctors who examined the plaintiff's back as occasioning significant prejudice to the defendant. Moreover, there are the admissions that the plaintiff made in cross examination. 44 Was there a change in the plaintiff's attitude towards Naval authority after the collision, as the plaintiff contends? According to the plaintiff's affidavit, prior to the collision he was in trouble only once when he slept in late. There are disciplinary records establishing that that assertion is incorrect and that the plaintiff committed six disciplinary offences before the collision. The plaintiff accepted as much however when he was cross examined, and the Naval records evidence this pre-collision history. 45 The complaint of prejudice on this issue of indiscipline is that whilst the defendant has punishment records available to it for offences on specific dates, except for Mr Zemek it does not have available to it the witnesses identified on those records or else there is no witness available who recalls the incident. The plaintiff's divisional officer has been located but he does not remember the plaintiff. 46 Mr Zemek is available, although his evidence would not assist the defendant. He was a Petty Officer on the "Melbourne" and on 6 May 1964, when the "Melbourne" was in Sydney after the bow was repaired, the plaintiff was one of fifteen men under his command. The plaintiff refused to go on duty and Mr Zemek was ordered to charge the plaintiff, which he did. That was the only incident of ill-discipline concerning the plaintiff that Mr Zemek could remember. Mr Zemek wrote as to the plaintiff: "… Whilst under my supervision he was not in the least aggressive, was invariably pleasant, and an always helpful, cooperative and diligent worker." 47 As cross examination of the plaintiff went to establish, the defendant is in a position to prove and, indeed, the plaintiff has acknowledged in cross examination, that his assertion that there was but the one disciplinary offence before the collision was not correct. However, the defendant submits that because of the death of witnesses and the passing of time the background circumstances to the disciplinary offences (except for the refusal to obey Mr Zemek's order) cannot now be established and these may have been significant as evidencing unhappiness in the service, not only after the collision but before it. 48 Then, there is the issue of the plaintiff's reasons for leaving the Navy. Did he leave for the reasons asserted in paras 13 and 17 of his affidavit (see paras 14 and 15 above)? 49 The defendant has available to it a memorandum from Lt Commander Homewood dated 10 January 1964. It records that the plaintiff made application for leave without pay, which was originally to have been an application for a "free discharge". It further records that whilst on leave the plaintiff "caused a little concern with allegations that he cannot advance in the Navy any further, having reached the peak, that all he is allowed to do is read gauges etc. and that he is wasting his time in the Sydney area."

This grievance, according to the memorandum, was the subject of discussion between the plaintiff and his father whilst he was on leave. 50 The memorandum to which I have referred is obviously a very material document but the defendant complains that the author of the document is dead, as is the plaintiff's father. Furthermore, the family doctor, Dr Scholtz, who features in the memorandum, is also deceased. Without these witness all that the defendant has is the memorandum itself. 51 The plaintiff's case is that he sought a free discharge after the collision on the ground that his father needed his help on his property, and he then concealed his true reason for making the application, because he did not expect to be released if he told the truth. For the defendant to be able to establish that the plaintiff was contemplating a free discharge before the collision and that he considered he was wasting his time would obviously go towards establishing a most material matter, particularly since the plaintiff left the service only eight months later. 52 When the plaintiff was asked about the events to which the January 1964 memorandum relate, the plaintiff said he could not recall telling his father what was recorded. The plaintiff gave these answers to these questions in his cross examination (T 23-24): "Q. Do you recall going home on leave in December 1964, January 1964, around Christmas time and the New Year? A. I don't recall it but we normally did have leave at that time of year.

Q. I would like to suggest to you that whilst you were on leave that you said to your father that you were of the view that you could not advance in the Navy any further and that you had reached a peak; do you recall that? A. No.

Q. That you told him that all you are allowed to do was read gauges, do you recall telling him that, and that you are wasting your time in the Sydney area; do you recall that? A. No.

Q. You deny that? A. I don't recall it.

Q. Is it the fact that you don't recall it but you did not deny it, is that your evidence? A. I don't recall saying it.

Q. Do you deny saying it? A. No, I said I don't recall saying it." 53 In the recommendation for a free discharge which was made by the captain of "HMAS Melbourne", Captain Stevenson recorded that he had "investigated the case carefully" but the recommendation does not make altogether clear what matters Captain Stevenson took into account. Captain Stevenson is deceased, so that the defendant complains it has lost the opportunity of discovering what that officer's investigation of the case had revealed. 54 What the defendant does have are the records to which I have referred. It was not contended that those records would not be admissible in evidence. The available records do raise a real issue as to whether the plaintiff was happy in the service before the collision, and whether he was likely to have remained in it. They raise the issue as to the reason why the plaintiff left the service. 55 A further issue in relation to which the defendant claims to be disadvantaged is in seeking to establish that the plaintiff had no psychiatric disorder at the time that he left the service. Medical records available to the defendant do not record any psychiatric disorder and, indeed, there is a record of an examination of the plaintiff by Dr McGeorge on 24 April 1964 in that specialist's capacity as a consultant psychiatrist. The available records do establish that the plaintiff was examined for psychiatric purposes by Dr McGeorge some two months after the collision and Dr McGeorge recorded that the plaintiff had no psychiatric disorder. 56 Dr McGeorge is now deceased. However, I am not persuaded that the defendant is disadvantaged by this since the records relating to the relevant examination will be admissible and the record is quite clear in its terms. I regard it as highly unlikely that if Dr McGeorge was still living he would be able to add anything to what has been recorded. 57 A further matter of prejudice which the defendant contends would arise in the event of this application being successful concerns a consultation which the plaintiff and his then wife had with a psychiatrist, Dr Max Bawden, on 10 May 1982. The consultation with the psychiatrist was to discuss problems that the plaintiff and his then wife were having with their marriage. The report does not address the plaintiff's mental state. Dr Bawden observed that the plaintiff was rather immature in his attitudes but there is no reference to whether the plaintiff had or did not have at that particular point of time any psychiatric illness. 58 When cross examined about the consultation with Dr Bawden, the plaintiff could not recall what occurred at the relevant consultations. He said there were two, the first without and the second with his wife. 59 Mr Dicker has submitted that the defendant is prejudiced by reason of the effluxion of time since Dr Bawden's assessment since that doctor would be unable to recollect now what was said. 60 It does not seem, from a reading of Dr Bawden's report, that he was concerned in May 1982 to make a psychiatric assessment at all. His purpose in seeing Mr Blyth and his second wife was to address problems they were having with their marriage. Dr Bawden did record as a matter of history that the plaintiff joined the Navy after he left school, but Dr Bawden recorded: "He eventually decided that the life was not for him so he was insubordinate, given ninety days in detention and was eventually discharged after three years service."

There was no complaint, at least in the history recorded, that the plaintiff was disturbed by the collision between the "Melbourne" and the "Voyager" or that after that he changed his attitude. 61 Dr Bawden's report goes into considerable detail. The defendant is in a position to prove the history that was taken by Dr Bawden and I am not persuaded that there is any prejudice by reason of the lapse of time since Dr Bawden saw the plaintiff. Had Dr Bawden been concerned to apply his mind to the plaintiff's psychiatric state, I would have expected to find some reference to this in what the doctor wrote. 62 There were departmental records which are no longer in existence. The evidence discloses that two files have been destroyed, one described as a "Service Details" file, destroyed in 1990, and there was a second file entitled "Debt", which it seems would have been likely to contain documents concerning moneys borrowed by the plaintiff. The evidence discloses that these two files have been destroyed and that this occurred in 1990 before the defendant was on notice that the plaintiff contemplated bringing an action against it. Ms Robinson's affidavit of 7 February 2005 evidences that there was a practice at the Department of Defence to preserve all relevant service records when there was an indication that proceedings have been commenced or are likely to be commenced by that person against the Commonwealth. 63 A further matter of prejudice claimed is the loss of records. 64 The evidence before the Court does establish that the defendant has available to it significant records concerning this plaintiff. The possibility cannot be ruled out that in the records destroyed there may have been material that could now be useful to the defendant, but this is speculative. 65 Recently, in Smith v Commonwealth of Australia [2004] NSWSC 873 Barr J, in an application for an extension of time by another crew member of the "Melbourne" said, concerning the destruction of Naval records: "To the extent that Navy records were destroyed, the Commonwealth must take the consequences of its own actions. It was obvious from the time of the collision that many hundreds of sailors had been affected and were likely to be affected in the future. Any service that destroyed its records, ignoring the possibility of future claims by sailors claiming compensation, took upon itself the risk that it would become less able to defend any such claim." 66 The Court of Appeal has recently granted leave to appeal in Smith. However, I heed his Honour's observations above recorded which are apposite in this case. I am not persuaded that the destruction of the additional records gives rise to a real risk of significant prejudice. 67 The defendant further complains that it faces prejudice in investigating the plaintiff's assertion as to where he was and what he was doing when the collision occurred. The plaintiff's description of events was recounted to Professor McFarlane and to Ms Troy, a psychologist who also saw the plaintiff in recent times. The defendant submitted that it needs to locate and interview witnesses who were near the plaintiff at the time of the collision and who recall the plaintiff. There is evidence of unsuccessful investigations in this regard up to the present time. 68 Of course, the defendant has available to it Royal Commission records and the cross examination of the plaintiff. Ongoing inquiries may identify one or more persons who were working near the plaintiff but the contended prejudice of which the defendant complains has to be considered and weighed. 69 There is a complaint that the plaintiff's Certificate of Service is incomplete and that the defendant is prejudiced by reason of this. The plaintiff's copy of this document was eventually provided, and it does not appear that significant prejudice is likely to arise by reference to the defendant's complaints about the shortcomings of the certificate produced by the plaintiff. The defendant is equipped with other meaningful records. 70 The defendant complains that it is prejudiced by the unavailability of medical officers who saw the plaintiff for one reason or another during his time in the service. As earlier observed, the defendant has the plaintiff's medical records. True it is that there are doctors who are now deceased, and I note that the two orthopaedic surgeons who saw the plaintiff concerning his back are now deceased, but I consider it to be the remotest of possibilities that those doctors no longer available to the defendant would have been able to add usefully to what was recorded in the medical records. 71 The next matter that calls for consideration is the defendant's claim that it would be prejudiced in preparing to meet and in meeting the plaintiff's claim for loss of earnings and loss of earning capacity. 72 I do not understand it to be contended that the defendant would have difficulty in determining what the plaintiff would have earned or been likely to earn had he remained in the Navy. Doubtless, the defendant would be able to present earnings figures on various bases, assuming various progressions in the event that the plaintiff had continued to serve. However, the claimed difficulty is in determining what the plaintiff earned or was able to earn after he left the Navy on 11 September 1964 and up until the present time. 73 In his affidavit sworn on 13 May 2003 the plaintiff gave this detail about his work after leaving the Navy: "THAT when I got out of the Navy I went from job to job. I have had many jobs. I believe at least twenty. The jobs include the following:- a. 1964 Douglas Kevin Blyth Labourer 3 mths $20.00 pw (father) b. 1965- Local farms (casual/ Fruit 5 yrs $40.00 pw 70 part-time) picking c. 1970- Sarah Coventry Sales & 3 yrs $40.00 pw 73 P/L delivery d. 1973- Various fruit farms Fruit 6 yrs $40.00 pw 75 (casual) picking e. 1975- Self-employed Fruit grower/ 5 yrs $50.00 pw 80 car repairs f. 1980- Self-employed Fruit grower/ 7 yrs $46.00 pw 87 mechanical g. 1987- Unemployed and 99 casual self- Vine pruning 12 yrs $46.00 pw employed

From 1975 to the present I have been self-employed." 74 The plaintiff went on to assert that he just went from job to job as an itinerant worker because he could not settle down. He said he could not "deal with authority" (see para 19). He said: "It was all cash in hand." However, in evidence he corrected that assertion, informing the Court that "it wasn't all cash in hand". Later, in responding to particulars a different and more detailed picture as to employment emerged, and it is conveniently recorded in para 15 of the affidavit of Ms Robinson sworn 22 July 2004: "The Plaintiff's replies to further and better particulars dated 2 April 2004, exhibited hereto at Tab A, identify approximately 23 further employers and provide further details of the Plaintiff's self-employment. Those employers are marked in bold in the following list of the Plaintiff's employment: Period of Employer Occupation Employment

6.03.61 - 27.1.62 PMG (now Australia Post) Junior Postal Officer, Loxton, Vic 12.02.62-11.9.64 RAN Oct 1964 - Jan 1965 Father - Douglas Kevin Blyth Farm Labourer Jan 1965 - May 1965 Riverland Cannery Labourer May 1965 - July 1975 Loxton Co-op Fruit Packers, now Riverland Fruit Co-op Ltd Labourer July 1975 - Sept 1965 Humes Ltd Pipe Manufacturers Forklift Driver Sept 1965 - Jan 1966 GN & PA Luitges Earthmoving Casual Labourer Jan 1966 - July 1966 RM Eastmond Earthmoving, Renmark Casual Labourer Woodson Seery Casual Labourer, July 66 - Jan 1968 now Riverland Fruit Co-Op Limited, Renmark (intermittent work) Jan 68 - Sept 68 Firestone Tyres Labourer Sept 68 - Jan 69 McLeod Tyres Labourer Feb 69 Dunlop Tyres Labourer Feb 69 - Jan 70 F Harrop General fruit picking M Rudiger Jan 70 - Jan 73 Mrs Blyth, via Sarah Coventry P/L Selling Jewellery & Delivery Jan 73 - Sept 73 Ian Diffen, World of Tyres Labourer Oct 73 - Dec 73 Repco Auto Parts Labourer Dec 73 - Dec 74 Fraser Craft Fibreglass worker (boats) Jan 75 - 30.6.80 Self Employed Boats and Tanks Fibreglass Products 1.07.80 - 30.6.85 Self Employed Fishing and Fibreglass Boat Building 1984 Self Employed Fishing and Labouring Birch Fence Co 1985 1986 Oliver Engineering Fishing and Labouring Unemployed 1987 T & C Crash Repairs Labourer 1988 ALU Farms Labourer 1989 Elbees Fibreglass repairs Self employed 1990 TW & LA Blakely Labourer 1991 Primary Vines Casual worker 1992 Yaots Workshop Labourer 1993 Penneshaw Youth Hostel Driving Bus 1994 Unemployed 1995 Aztec Services Labourer 1996 Penneshaw Youth Hostel Labourer 1999 Social Security - Newstart Labourer 1999 KP & GM Willson & Son Labourer 2000 Social Security - Newstart 2000 AL & J Willson Labourer 2001 Social Security - Newstart 2001 AL & J Willson Labourer 2002 Social Security - Newstart

75 It is to be observed from the more recent particulars that the plaintiff claims that he has had since leaving the Navy employment with no less than twenty-seven different employers as well as periods of self employment. The plaintiff was cross examined about his employment history and acknowledged that when he was employed he was not always employed full time. 76 The plaintiff has produced no records as to his earnings prior to 1980. Records have been produced from that time on, although the plaintiff's tax returns are missing for the financial years 1984, 1988 and 1989. Mr Joseph submitted that records were not the end of the matter and that some of the employers were available. 77 In her affidavit, Ms Robinson, in summarising the results of investigation, deposed that the investigator had been unable to locate the majority of the employers but that he had been able to locate persons regarding approximately eight places of employment. Chronologically, the first significant contact was with Elizabeth Welch who was employed by Sarah Coventry Pty Limited (an employer from 1970-1973). The plaintiff asserts a period of three years employment with Sarah Coventry Pty Limited, and that is the lengthiest period of employment particularised by him. Ms Welch was only a junior employee. She said she remembered the plaintiff and his then wife as regional managers either in South Australia or Western Australia. No records were available to her and she suggested that inquiries be made of a former managing director, Mr Cleghorn. Mr Cleghorn is understood to be deceased. She also suggested as a second source of inquiry a former regional manager, Ms Doecke. That person said she did not know the plaintiff. The company, Sarah Coventry Pty Limited, was, according to Ms Robinson, an American owned company that experienced financial difficulties. Ms Robinson's evidence is that there are no records for the plaintiff's employment with that company available. 78 Moving to more recent times, contact has been made with Louise and Joe Blakely, said to be employers in 1990. The defendant's investigations disclose that the plaintiff worked for them as a casual employee and drove earthmoving equipment and did mechanical repairs and welding in the Blakely workshop. Whilst working for them, the plaintiff lost the tips of two fingers and had a workers' compensation claim. Records concerning that claim are available to the defendant. They establish that the plaintiff was employed as a part-time casual labourer, working twenty to thirty hours per week, three to four days per week. His average weekly earnings amount to $365.60. The plaintiff, according to those records, started work with Mr and Mrs Blakely on 5 July 1993, which it is to be observed is three years later than the period of employment asserted in the particulars supplied by the plaintiff. It follows that other employment particulars supplied, both before and after the period of employment with the Blakelys, must also be incorrect. 79 The defendant has been able to locate two witnesses who are able to afford some information about work that the plaintiff did for the Penneshaw Youth Hostel driving a bus, work the plaintiff has particularised as performing I 1993, and then later in 1996. Christina Lavers informed the investigator that the plaintiff drove a tourist bus for her in 1999, driving on a few tours on a casual basis. That driving was on Kangaroo Island. Ms Robinson deposes to having information that a previous owner employed the plaintiff as a relief driver in 1996/97 and again in 1997/98. Once again, the particulars provided were wrong. 80 An investigator for the defendant has managed to locate Kevin Willson and Alan Willson, claimed to be employers in 1990. Kevin Willson said he employed the plaintiff for a few days in 2001 pruning vines, for which work he was paid $10 per hour. Alan Willson spoke of having known the plaintiff twenty years before when he shared a house with him. He said that in 2002 or thereabouts he employed the plaintiff to trim vines and that the plaintiff worked for him for four weeks altogether. Again, he paid $12 per hour to the plaintiff. The plaintiff's records reflect the employment with the Willsons. 81 Clearly, there are very substantial gaps in the records of the plaintiff's earnings and in the information which the defendant has been able to obtain about the plaintiff's employment. 82 Of course, it would be for the plaintiff to prove his claim for economic loss if the matter proceeded to trial. No doubt, in seeking to prove this claim, the plaintiff would present award and/or average wages figures. However, whilst acknowledging the plaintiff's evidentiary problems, I must consider on this present application the difficulties which the defendant would have in meeting the claim which the plaintiff seeks to advance. It is a claim covering a period of forty years and for at least the first fourteen years there are no earnings records available to the plaintiff. Overall, I accept, as Ms Robinson has deposed, that the defendant has been unable to locate the majority of the employers the plaintiff claims to have had over the past forty years. 83 The conclusion seems to me to be inescapable that the defendant would face extreme difficulty in endeavouring to determine what the plaintiff has actually earned since he left the Navy. The difficulties do not stop there. What has the plaintiff been able to earn over the past forty years? By what yardstick is that to be measured, and what evidence is there available to assist in determining this? 84 Putting aside the lost pension entitlement, the plaintiff claims that had he remained in the Navy he would have been paid at tradesman's rates. Implicit in his claim is the contention that when he left the Navy he was unfit to pursue a trade. It seems to me that the gaps in the evidence highlight the difficulty in addressing the question as to whether the plaintiff was capable of obtaining trade qualifications outside the Navy. 85 Again, it is for the plaintiff to prove his claim, but on this application I am concerned to address the issue of prejudice to the defendant if this claim is allowed to proceed. In the absence of records for the period of many years after the plaintiff left the Navy, the defendant is not in a position to make any assessment of whether the plaintiff had the skills to acquire a trade certificate or the capacity (physically and from the point of view of his mental wellbeing) to pursue employment as a tradesman, or to pursue any inquiries of employers to assist in determining these issues. Nor did the plaintiff remain in Naval service for such a period after the collision as to permit of an evaluation on these issues. 86 There were other matters of alleged prejudice referred to in Ms Robinson's affidavit, but I have confined myself to the matters upon which Mr Dicker's final submissions focussed. 87 In considering the issue of prejudice, I do not overlook the defendant's capacity to make further inquiries in relation to this claim. An investigator's report dated 4 February 2005 (part of Exhibit H) reveals that the whereabouts of the applicant's first wife are now known, as are the whereabouts of two former de facto wives. Interview with these persons (if they are willing to be interviewed) may afford some information that would be useful in addressing issues concerning the applicant's claim. However, it is not helpful to speculate about this, and I must determine the outcome of this application on the evidence before the Court.

The evidence of the plaintiff 88 Mr Dicker submitted that the plaintiff proved to be an unreliable witness and that this should bear upon the outcome of this application. 89 There were features of the plaintiff's evidence which were not satisfactory. Firstly, there were a number of errors in the affidavit which the plaintiff found it necessary to correct. One of these was the assertion that he saw bodies in the water. The plaintiff gave no satisfactory explanation for executing the affidavit with its various inaccuracies to which the Court's attention was drawn when the plaintiff commenced his evidence. 90 The plaintiff acknowledged further deficiencies in his affidavit in the course of cross examination. He admitted that he had had more disciplinary offences than the single offence to which he referred in para 13 of his affidavit. Further, he admitted that his employment history as set out in para 18 was incomplete. This was plainly the case, as the earlier review discloses. 91 The plaintiff was cross examined about a form that he completed in Family Court proceedings which was verified by affidavit and in which he set out details of his financial affairs. That document was completed with a view to the waiver of filing fees in those proceedings. Some two years later he applied to the State Bank of South Australia for a housing loan in June 1994. The later document was not verified but it presented a significantly different picture of the plaintiff's financial position. He acknowledged in cross examination that he exaggerated his financial position to the bank in an endeavour to obtain a housing loan. He was asked these question (T 53): "HIS HONOUR: Q. When you say you "would say", I am concerned to know what your evidence on oath is here. What do you say that document means in terms of that schedule of assets? Are they true or false? A. True.

Q. True? A. Oh, I don't know." 92 Then there was the evidence of the plaintiff that he was not frank in the reason he advanced for seeking a free discharge. 93 The plaintiff was cross examined extensively and there were many matters upon which he did not profess to have a clear recollection, as a reading of the cross examination discloses. An important matter upon which the plaintiff was cross examined was the content of the Homewood memorandum of 10 January 1964 The plaintiff did not recall saying what was attributed to him but at the same time he did not deny having said it (T 23-24, and see para 52 above). 94 My overall assessment of the plaintiff's evidence was that it was to be approached with caution. His evidence about his work history was extremely vague and unsatisfactory. The assessment of the plaintiff's evidence which I have expressed is relevant to the issue of prejudice and to the outcome of this application: see as to this Diston (supra) per Sheller JA in particular at para 44.

Conclusions 95 I remind myself that the outcome of this application does not depend upon a balancing exercise, weighing prejudice to the plaintiff in the event of refusal of the application and prejudice to the defendant in the event of granting the application. Obviously, the prejudice to the plaintiff if the application is refused is absolute but that cannot determine this application: see Sydney City Council v Zegarac (1998) 43 NSWLR 195 and in particular the judgment of Mason P at 199-200. 96 I have concluded that there is a real possibility of significant prejudice to the defendant should this application be granted in relation to the claim for loss of earnings and loss of earning capacity. The prejudice, however, is not limited to that one head of damage, because prejudice in meeting a claim for loss of earnings and loss of earning capacity must also affect the claim for loss of pension benefits and the ability to meet the plaintiff's claim as to the manner in which any post traumatic stress disorder proved impacted upon the plaintiff's enjoyment of life, and the assessment of the non economic aspects of general damages. The real possibility of significant prejudice considered in this paragraph leads me to conclude that I should refuse the plaintiff's application. 97 I considered earlier the claim of prejudice arising from unavailability of witnesses as to the issue of the plaintiff's behaviour before the collision (see paras 44-47 above); I also considered earlier the claim of prejudice by reason of the death of those who could have given evidence about the subject matter of Lt Commander Homewood's memorandum dated 10 January 1964 (see paras 48-51), and the death of Captain Stevenson, leaving unexplained the details of his "careful investigation" before recommending a free discharge (see paras 53-54). There was the further issue as to where the applicant was and what he was doing at the time of the collision (see paras 67-68). None of these four issues considered alone would have influenced me to refuse the plaintiff's application, but each would have contributed in some degree to the overall extent of the prejudicial exposure of the defendant had this application succeeded. 98 For the reasons stated, the application is refused. 99 In the circumstances, costs must follow the event.

Formal orders 100 1. The notice of motion is dismissed.

2. Order that the plaintiff pay the defendant's costs. **********

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