Burk v Commonwealth

Supreme Court of Victoria|2002-10-31|Before: BONGIORNO J.

TORT - Personal injuries - Limitation of actions - Extension of time - Matters to be considered - Extent of actual or presumptive prejudice to defendant - s. 36 Limitations Act 1985 (ACT); s. 23A Limitation of Actions Act 1958

On 21 October 2002, upon the defendant giving the required undertaking, and thus fulfilling the condition upon which leave to amend was granted it amended its defence to plead the statutory bar provided by s. 11 of the ACT Act[2].

The Court then proceeded to hear the plaintiff's application pursuant to s. 36 of the ACT Act. It is this application with which this judgment is concerned.

The Court's earlier judgment had the effect of applying ACT law, including its statutes relating to limitations, to this proceeding. Thus, in determining the plaintiff's application for an extension of time pursuant to s. 36 of the ACT Act, the common law requires that this Court apply the law of the ACT such that it should exercise any discretion conferred by the relevant ACT legislation as if it were a Court of that Territory. Section 6 of the Choice of Law (Limitation Periods) Act 1993 compels the same result.

Mr J V Kaufman QC, who again appeared for the plaintiff with Mr C Thomson, on this application, informed the Court that he relied upon three affidavits sworn by his client on 28 September 2001, 7 October 2002 and 21 October 2002 in support of the application. During the course of the hearing he tendered three exhibits, being synopses of evidence of various witnesses served upon the plaintiff's solicitor by the defendant's solicitor in anticipation of a trial of this action. He also relied upon two further affidavits, sworn during the course of the hearing, by his client and his client's wife. They were each sworn on 23 October 2002. There were a number of exhibits to these affidavits. No objection was taken by the defendant to the tender of the synopses of evidence referred to or to the reading of the two affidavits filed during the course of the hearing.

The defendant relied upon seven affidavits, all sworn on 15 October 2002 by solicitors from the Australian Government Solicitor's office, Richard Neish Boughton, Michael Brereton and Peta Heffernan (two affidavits), by a paralegal formerly employed by the Australian Government Solicitor, Saurenne Deleuil and by two paralegals still employed by the Australian Government Solicitor, Kimberley Joy Smith and Colette Wilson. There were a number of exhibits to these affidavits. Mr M Titshall QC, who, with Mr A Moulds, argued the application for the defendant also tendered, without objection, two statements served by the plaintiff pursuant to Order 33 of the Rules of the Supreme Court in anticipation of the trial.

Neither party sought to cross-examine any of the deponents of the affidavits referred to.

In order to succeed in this application the plaintiff must establish that, notwithstanding that the limitation period in respect of his claim expired on 10 February 1970, it is just and reasonable that this Court order that that limitation period be extended to accommodate this proceeding which he issued against the Commonwealth on 28 May 1999.

The provision under which the plaintiff makes his application, s. 36 of the Limitations Act 1985 (ACT), closely resembles s. 23A of the Limitation of Actions Act 1958 of this State. However it applies to all causes of action for damages for personal injuries no matter when the cause of action arose[3]. It also differs slightly from the Victorian Act in its description of the conduct of a putative defendant after a cause of action arose which might be relevant to the exercise of the discretion conferred.

As with the Victorian provision, the Court is required when considering the exercise of the statutory discretion under the ACT Act to take into account "all the circumstances of the case" and, without derogating from the generality of that requirement, is required to consider six specific matters which might be conveniently paraphrased as follows:-

* the length and reasons for delay by the plaintiff;

* any actual or likely prejudice to the defendant;

* any conduct of the defendant after the cause of action arose including the extent to which he made available to the plaintiff the means of ascertaining any facts which might be relevant to the cause of action;

* the duration of any disability of the plaintiff arising on or after the cause of action arose;

* the extent to which the plaintiff acted promptly once he knew the relevant facts; and

* any steps taken by the plaintiff to obtain medical, legal or other expert advice.

Thus, as Buchanan, JA said in Tsiadis v Patterson[4] the legislation being applied in this case does not belong to that class of legislation providing for extensions to limitation periods that depend upon the applicant discovering a material fact or facts of which he was previously unaware at any particular time. It concentrates rather upon the justice and reasonableness of granting an extension, in all the circumstances of the case, including, but not limited to, the six matters to which reference has been made.

Although all of the matters listed in s. 36(3) must be taken into account, in this case the arguments of the parties concerned themselves largely with the question of whether the defendant would or would be likely to suffer prejudice as a result of requiring it to defend a proceeding brought against it by the plaintiff over 35 years after the event giving rise to that proceeding occurred and, if so, the extent of that prejudice. However, this does not relieve this Court of the obligation to consider all the circumstances, including the six nominated by the sub-section[5], although the importance given to each of them by both counsel must be some indication of their overall significance in this case.

In Tsiadis v Patterson[6] the Court of Appeal (Ormiston, Callaway and Buchanan, JJA) considered the effect and meaning of s. 23A(3)(b) of the Victorian Act which is identical to s. 36(3)(b) of the ACT Act. In particular, Buchanan, JA, with whom the other members of the Court agreed, emphasised that the section was not concerned solely with any prejudice to the defendant which is present or is likely to occur in the sense that it is more probable than not that it will occur if an order is made. His Honour considered that the word "extent" in the paragraph required the Court to have regard to the degree to which prejudice was likely to eventuate in the event that leave to institute a proceeding was granted. It is central to his Honour's reasoning that the question of prejudice was only one of a number of matters which the Court had to take into account in determining whether it was just and reasonable to extend time. He distinguished the High Court case of Brisbane South Regional Health Authority v Taylor[7] on the ground that in the Queensland legislation, with which that case was concerned, there were no specified matters which the Court was required to consider in determining whether to extend the limitation period. He considered that the form of s. 23A does not permit the conclusion that proof of prejudice alone must lead to the refusal of an application. Prejudice to the potential defendant is to be considered together with all the circumstances of the case including the other five matters referred to in s. 36(3), although in a particular case, prejudice to the defendant may be very significant, particularly if it is so severe as to preclude a fair trial of the applicant's claim.

On the facts of the case with which the Court of Appeal was concerned in Tsiadis it considered the existence of actual prejudice more doubtful than presumed prejudice brought about by the effluxion of time since the occurrence of the accident in respect of which the plaintiff wished to claim damages. Buchanan, JA concluded by holding that s. 23A (and hence, in the present context, s. 36 of the ACT Act) required the synthesis of a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the applicant for an extension bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. He cited a dictum of Brooking, J in Bell v SPC Ltd[8] and concluded that, notwithstanding the possibility of prejudice to the proposed defendant and, in that case, the availability of a cause of action by the applicant against her solicitor, time should be extended to enable proceedings to be brought.

Although the Court of Appeal distinguished Brisbane South Regional Health Authority v Taylor[9] in Tsiadis[10] it did not, either in terms or by implication, distinguish the judicial statements made in that case as to the rationale for the existence of limitation periods and the interaction between statutory time bars and the question of prejudice to a defendant when a court makes an order which effectively overrides them.

In Brisbane South the Queensland Court of Appeal had held that once an applicant had established the factual preconditions for the exercise of a discretion to extend time he or she had a presumptive right to an order in his or her favour. The High Court disagreed with this proposition, pointing out that the statute conferred a discretion to extend time, not a discretion to refuse an extension to which an applicant was presumptively entitled. So far as prejudice is concerned, although a respondent to an application might bear an evidentiary onus in respect of the issue in the first instance under the Queensland statute, the applicant still bore the onus of showing that the justice of the case required the exercise of the discretion in his or her favour. Although there are no factual preconditions which an applicant for an extension must satisfy under the ACT Act, the following passage from the judgment of McHugh, J in Brisbane South[11] is in no way rendered less apposite to the question of prejudice as it must be considered under s. 36(3)(b) of the ACT Act by anything said by the Court of Appeal in Tsiadis:-

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. (R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC.) Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo ((1972) [1972] USSC 146; 407 US 514 at 532), 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. "

His Honour emphasised the effect of delay on the quality of justice as being one of the most important influences motivating a legislature to enact limitation periods for commencing actions. He pointed to four broad rationales for such enactments[12]:-

"First, as time goes by, relevant evidence is likely to be lost (Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704). Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed (RB Policies at Lloyd's v Butler [1950] 1 KB 76 at 81-82). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50, p 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper (1992) Project No 36, Pt II, p 11). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period [footnote omitted]. As the New South Wales Law Reform Commission has pointed out (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50, p 3): 'The potential defendant is thus able to make the most productive use of his or her resources (Kelley, 'The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience', Wayne Law Review, vol 24 (1978) 1641, at p 1644) and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided ('Developments in the Law, Statutes of Limitations', Harvard Law Review, vol 63 (1950) 1177, at p 1185). To that extent the public interest is also served.' Even where the cause of action relates to personal injuries [footnote omitted] it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims, (1986) LRC 50, p 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper, (1992) Project No 36, Pt II, p 11).

McHugh, J considered that extension provisions in limitation statutes provided exceptions to the general rule that causes of action should normally be litigated within the relevant limitation period. His Honour continued[13]:-

"The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' (Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 at 635) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

Notwithstanding the differences between the Queensland statute being considered by the High Court in Brisbane South and the ACT statute with which this Court is now concerned, the general principles concerning prejudice enunciated by McHugh, J are applicable when consideration is being given to the factors referred to in s. 36(3)(b) of the ACT Act. The difference between the statutes means that in a Victorian/ACT case the court is required to synthesise a number of competing considerations in arriving at a conclusion that takes account of all the circumstances including the six enunciated matters set out in ss. 23A(3) and 36(3) of the respective statutes[14] (of which prejudice to the defendant is one), whereas the discretion conferred by the Queensland statute means that the court is not confined by those explicit statutory considerations. Prejudice to the defendant is but one of the "incommensurable considerations" which this Court must take into account in this case in deciding whether it is just and reasonable to extend the limitation period. The extent of the actual or presumed prejudice to a defendant in permitting an extension of the limitation period will influence the weight which prejudice to a defendant will have in the synthesis referred to by the Court of Appeal and thus in the overall determination of the justice and reasonableness of granting the extension.

In their joint judgment in Brisbane South Toohey and Gummow, JJ[15] considered that the question as to whether prejudice to a prospective defendant is likely to thwart a fair trial is an important consideration in many cases where extensions are sought. McHugh, J[16] considered that once the potential liability of a defendant had ended by the expiration of a limitation period its capacity to obtain a fair trial, if an extension of time were granted, was a relevant and important factor to take into account. In this Court Tadgell, J in Kosky v Trustees of Sisters of Charity[17], in considering the Victorian extension provision as it was prior to the 1984 amendment, considered that in some cases the presumptive prejudice inherent in a lapse of (in that case) fourteen years from the time of allegedly negligent conduct until the commencement of an action in respect of it might of itself render a fair trial of the issues impossible or so unlikely that a trial ought not to be countenanced. In the context of the statute with which this Court is presently concerned the prospect of the issues between the parties being unable to be fairly tried would be but one of the factors to be taken into account in the synthesis to which Buchanan, JA was referring in Tsiadis[18]. Its influence on that synthesis would depend upon not only the extent of the perceived unfairness but whether, in light of all of the other considerations required to be taken into account it was still considered by the Court to be just and reasonable that an extension be granted or not as the case may be.

The first affidavit relied upon by the plaintiff on this application, entitled "Supplementary Affidavit in Opposition to Application by Defendant to Amend Defence" (sic) related to his having read a newspaper article in a local Tasmanian paper in or about early 1997 concerning a Mr McLean, another member of the crew of HMAS Melbourne who had sought damages from the Commonwealth for injuries allegedly received when that ship and HMAS Voyager collided on 10 February 1964 in international waters off the coast of New South Wales. The plaintiff deposed that he recognised many of the symptoms which Mr McLean apparently reported as being similar to his own which he had not "... until that time appreciated could be symptomatic of a psychiatric disorder". Some two years later, on the anniversary of the collision, Mr Burk said that he read a further article about the collision which included comments by his now solicitor whom he contacted the following day.

The plaintiff's second affidavit entitled "Affidavit in Support of Application for Extension of Time" detailed an unremarkable personal history up until the time of the collision. He described the collision and his reaction to it as being one of "shock, horror and disbelief". He said that following the collision, HMAS Melbourne returned to Sydney where the crew was disembarked and instructed not to discuss the collision. He said that no counselling was provided and that ever since he has been reluctant to discuss the event because of the instructions he was given and because revisiting the incident caused him severe stress. After HMAS Melbourne was repaired Mr Burk continued to serve in it but experienced anxiety and a concern that it may sink. He experienced discomfort at sleeping and being below decks and as a result his sleeping pattern became irregular and disturbed. He found himself drinking heavily when ashore and his attitude to the Navy changed although he did not recognise what was happening at the time. He says that he received a poor report during 1964 including a comment on his lack of motivation. That report is contained in a document entitled "Employment and Ability Record", the format of which is a handwritten spreadsheet on which most assessment criteria such as "Initiative", "General Efficiency" and the like are dismissed with the cryptic comment "SAT", which presumably stands for "satisfactory". In a remarks column for the period 21 May 1964 to 10 November 1964 appears the brief notation:-

"Requires constant urging. Won't make an effort to get requirements for advancement."

The comment is repeated for the period 17 November 1964 to 30 April 1965 but is followed for the period 1 May 1965 to 29 October 1965 with the comment:-

This latter comment is repeated for the period 30 October 1965 to 31 December 1966. The rest of the document is relatively uninformative other than to record a generally satisfactory rating of the plaintiff, including for the period up to the end of his full time Naval career in September 1967.

Mr Kaufman put considerable emphasis on the first of these notations as being in some way corroborative of his client's case that he was adversely affected by the collision. There is no other reference in such Naval records as are still available, including the plaintiff's medical record, which is to similar effect.

"16. Looking back, I believe that since the time of the collision my character has changed. I have become, instead of an easy going and friendly person, an unhappy, irritable and volatile person who does not cope well with stress. I have had difficulty in making and sustaining friendships, and believe I have made life hell for my wife and children as a result of my personality change. 17. I have had difficulty with employment since the collision. As previously stated, I lost motivation for my career. I tried to revive it, and hoped that I would overcome it and regain the former pride and pleasure that I had in my work. However, it did not happen and I eventually did not seek re-engagement beyond my initial term of nine years which expired in September 1967. 18. I cancelled the previous plans my wife and I had had to make our life and home in New South Wales. Instead I moved her and our first son back to Railton in Tasmania. We sold the block of land we had purchased in Nowra. I obtained employment with Goliath Cement Works again and maintained that employment for eighteen years until 1985. I believe I performed my work adequately, but did not enjoy it and was often a difficult person to be with. I could not obtain enjoyment or pride in my life and family. I developed a resentment about having to do extra work when people were away. I found it more and more stressful being involved in the politics of work and having to deal with workmates and people in other companies. Ultimately in April 1985, I abruptly terminated my employment and resigned. I had not beforehand even discussed with my wife doing so. This meant a severe penalty to me by way of loss of potential superannuation benefits under the company scheme, and it also meant that I could not obtain a good reference from my employer in seeking any other employment. It was an irrational and extremely costly decision to make, however, one made under stress that I was finding intolerable to bear."

The plaintiff deposes that since leaving the Goliath Cement Works in 1985 he has not worked apart from six months in a job training scheme in 1997 which did not lead to any offer of employment. He took up an interest in training and racing greyhound dogs in the early 1970s but at some indeterminate time ceased that activity. He concluded this affidavit by saying that it was between 1997 and 1999 that he began to contemplate whether his involvement in the collision "... may have led to this change in personality, and whether in fact (he) may have indeed suffered from some sort of mental disorder as a result of the collision, without previously realising this was the cause of his aberrant behaviour."

There are exhibited to the plaintiff's affidavit a number of reports of medical practitioners and a clinical psychologist, none of whom had ever examined or treated the plaintiff prior to his consulting his solicitor in February 1999. There are also exhibited a copy of the plaintiff's Certificate of Service with the Navy and two press clippings.

The medical reports exhibited contain a much fuller history of the plaintiff than does his affidavit. They are not expressly sworn to by him. However, I am prepared to treat them as evidence, having regard to their having been exhibited to his affidavit and described as containing "a better and fuller description of my symptomatology". In so far as those reports contain information provided by the plaintiff's wife they are likewise unsworn but have not been challenged by the defendant who could have sought leave to cross-examine the plaintiff's wife as an affidavit by her had been filed. I am prepared to regard them as evidence of the facts contained in them for the purposes of this application.

Mr Robert Wilks, a clinical psychologist, saw the plaintiff on 6 March 1999. He recorded an extensive history of the events surrounding the collision and the plaintiff's subsequent Naval service up until 1967. He recorded the plaintiff's complaints of crying spells, irritability, loss of appetite and body weight, fatigue, palpitations, lack of interest in activities, intrusive recollections, nightmares and variable libido. He recorded that Mr Burk worked for eighteen years as a clerk/assistant paymaster in a cement factory after leaving the Navy until he abruptly resigned in 1985 saying that his work performance had slowly deteriorated over time, his drinking had increased to six bottles of beer per night and he was subject to a sense of guilt in relation to the collision. Mr Wilks recorded that the plaintiff said that his resignation from the cement company was abrupt, that he went to his GP and broke down in tears and did not return to work thereafter. That GP is not identified either in Mr Wilks' report or in any affidavit filed by the plaintiff.

Mr Wilks recorded that in the fourteen year period from 1985 to 1999, after leaving the cement factory, Mr Burk remained off work, spending his time raising his children and "mucking around" on a three-acre property. He recorded that his psychological condition had remained "very similar" with continuing symptoms reducing a little in intensity as the years went on. He also recorded that the plaintiff told him that between 1964 and 1999 (thirty-five years) his only treatment had been to occasionally see GPs to complain of "sleeping difficulties". None of these GPs is identified.

Mr Wilks' history also recorded serious marital discord between Mr Burk and his wife which, during one period, involved their separation for eighteen months when he was involved with a young lady he met at "the dogs".

Mr Wilks diagnosed Mr Burk's condition as post-traumatic stress disorder in respect of which he was in denial to himself and others. He attributed the condition to the Melbourne/Voyager collision.

A second report of Mr Wilks following an examination of Mr Burk on 23 May 2002 recorded little further of relevance to the present application.

Dr I P Burges Watson, a Hobart psychiatrist, saw Mr Burk on 2 June 1999 and again, with his wife, on 11 June 1999 and on 1 July 1999. His report, like Mr Wilks', has a more extensive history than that given in Mr Burk's affidavit. It identifies the doctor to whom Mr Burk went immediately upon his resignation from the cement company in 1985 as being a Dr Alex Bodisco. Apart from that fact and the fact that Mr Burk has taken prescription drugs (Valium and Prozac) on unstated dates prescribed by unstated doctors, the history given to Dr Burges Watson parallels that given to Mr Wilks. Dr Burges Watson confirmed Mr Wilks' diagnosis of post-traumatic stress disorder which he relates to the collision although he concedes that he did not explore Mr Burk's childhood or family relationships.

Dr Bruce Poole, a general practitioner of Shearwater, Tasmania wrote a report on Mr Burk dated 20 June 2000. It adds nothing of relevance so far as the questions raised by the present application are concerned.

Associate Professor D J de L. Horne, a clinical psychologist, examined the plaintiff on 27 August 1999. He records an extensive history including, of relevance for present purposes, that Mr Burk saw three psychiatrists when his marriage was under severe difficulty in 1993 but never told them anything of the Melbourne/Voyager collision. Apart from one, a Dr Avery, these psychiatrists are unidentified as are a GP who "tried to put him on Prozac". Dr de L. Horne confirmed the other expert opinion that Mr Burk is suffering from post-traumatic stress disorder attributable to the collision. Similarly to Mr Wilks, he is also of the opinion that Mr Burk has been unaware that the Melbourne/Voyager has been the major reason that he has experienced so much emotional and social disruption throughout his life since 1964.

Professor A C McFarlane, Professor of Psychiatry at the University of Adelaide, examined Mr Burk on 19 September 2001. He recorded a very extensive history concerning the collision and Mr Burk's psychological reaction to it. These included many of the matters recorded by Mr Wilks. He recorded a visit to an unidentified Naval doctor in 1967 and to a psychiatrist in 1993 in relation to marital difficulties. It appears that Mr Burk told Professor McFarlane that he had only received treatment "in recent time" for his condition. This was in the context of his marital difficulties although he had previously had contact with general practitioners and with Dr Avery, the psychiatrist referred to in Dr de L. Horne's report. The general practitioners are unidentified.

The evidence relied upon by the defendant in opposing the plaintiff's application consisted solely of evidence going to the issue of what, if any, prejudice it would suffer should the plaintiff's application be granted. It produced evidence that five Department of Defence files relating to the plaintiff had been destroyed in about 1990 or 1991 and that these files would have contained, in effect, the whole of the plaintiff's service history except his medical history which, as has already been noted, contains no reference to any problem the plaintiff may have suffered of a psychological nature up until he left the Navy.

The defendant was able to identify a Dr Maxine Manifold, a general practitioner, who had treated the plaintiff in 1992 but who now says that she does not remember him. Further enquiries made at a medical clinic near the plaintiff's home were unsuccessful. An enquiry as to the whereabouts of Dr Terry Avery, a psychiatrist to whom the plaintiff was apparently referred by Dr Manifold in 1992 and who is mentioned in histories given by him to two of the doctors to whom I have already referred, resulted in Dr Avery's wife informing a representative of the defendant that he is unable, by reason of grave illness, to recall Mr Burk, but that his records were available. Those records, which were produced, consist of a three-page undated note made apparently by Dr Avery which, although extensive, is difficult to decipher but does not appear to contain any relevant reference to the subject matter of this application. A psychiatric report written by Dr Avery dated 23 September 1992 records that he interviewed both Mr Burk and his wife separately with reference to their marital difficulties. There is no reference in that report to any matter relevant to Mr Burk's application, although that absence and the absence of any similar matter in Dr Avery's notes may (or may not) be significant.

Dr Alex Bodisco, the doctor who probably saw the plaintiff upon his resignation from Goliath Cement in 1985, has no recollection of him and has no knowledge of any records which might have related to him.

The defendant has established that in 1994 the plaintiff was referred to a Dr Neilson, a psychiatrist, by his then general practitioner, Dr D W Saner. Dr Saner's referral letter and Dr Neilson's clinical notes contain no reference to any matter relevant to this application. Neither Dr Neilson nor Dr Saner were referred to as having treated the plaintiff in either of his affidavits or in any history which he gave to any doctor whose report has been produced.

The defendant has also identified a Dr Jamieson as having treated the plaintiff in or around 1970. Dr Jamieson is deceased and no records relating to any treatment he might have given the plaintiff are available.

Statements provided by the plaintiff's solicitors to the defendant pursuant to Order 33 of the Rules of the Supreme Court from Drs David Saner and Bruce Poole establish that the plaintiff was treated by these general practitioners in the early 1990s and late 1990s respectively. There is no reference in Dr Saner's statement to any matter relevant to the present application and Dr Poole states that although he treated Mr Burk from early 1997 it was only on 20 May 1999 that he mentioned his involvement in the Melbourne/Voyager collision. [There is a reference in Dr Saner's clinical notes, eventually produced by the plaintiff during the hearing, concerning a consultation dated 9 December 1997, to the effect: "?PTSo" and a reference by him in a referral letter to an ear nose and throat specialist dated 16 December 1997, also produced during the hearing, in terms:

"Of interest, he was in the Navy on the Melbourne when the Voyager accident occurred and he feels that he does have some flashbacks to this but I am not sure whether this is a media induced statement or whether this has actually happened."

Neither of these references was ever adverted to or explained in the plaintiff's case nor was the fact that the original statement of claim in this proceeding pleaded that the plaintiff first knew of his injuries and that they were caused by and resulted from the collision between the Melbourne and the Voyager in or about 1997.]

Enquiries by the defendant of persons who may have served in the Navy with the plaintiff at and subsequent to the time of the relevant collision turned up eleven apparently relevant persons who said they had no recollection of the plaintiff and four who were able to recall him.

The defendant also relied upon a number of medical reports written by psychiatrists Dr Allan White, and Dr David Bell and a psychologist, Associate Professor Richard Bryant. In effect they disputed the diagnosis of the plaintiff's condition and its relationship to the collision. The histories they elicited from Mr Burk were no more informative as to any medical or other consultation he may have had over the greater period of his life since leaving the Navy than were those obtained by the doctors consulted by him on the referral of his solicitor.

By way of reply to the defendant's case the plaintiff deposed that a number of people will be available to give evidence upon the trial of this proceeding if he is given leave to bring it, including his wife, his brother, a teacher who taught him at secondary school and was subsequently employed with him at Goliath Cement, and a number of other "before and after" witnesses. He refers to the Naval records which the defendant does have, his statement to the Royal Commission which followed the collision, the report of the Royal Commission and other documents relating to the collision itself. During the course of the hearing a bundle of medical records were also produced by the plaintiff and identified by his wife as being written by various medical practitioners who have treated him since about 1992. Significantly, the plaintiff does not identify any doctors he might have consulted between 1967 and 1992.

It is common ground between the parties that the collision between HMAS Melbourne and HMAS Voyager was caused by the breach of a duty of care which the defendant owed to the plaintiff. It is immaterial for present purposes how that breach is characterised or which Commonwealth employees committed it. What would be in issue if this matter proceeded to trial is whether the plaintiff is suffering from a psychiatric condition known as post-traumatic stress disorder and if so whether that condition was caused by the collision of the two Naval ships.

It is also common ground that any cause of action which the plaintiff might have against the defendant arose on 10 February 1964; that is to say at the time the collision occurred.

Mr Titshall QC, for the defendant, argued that although the pattern of symptoms of which the plaintiff complains may have been given the label of post-traumatic stress disorder only in 1999, those symptoms, on the plaintiff's own case, arose at or shortly after the collision and were attributed by him to the collision at that time and at all times since. He points to the plaintiff having described his anxiety at remaining on HMAS Melbourne and his concern that it might still sink even after it had been repaired. All that happened in 1999, says Mr Titshall, is that a medical label was put on the plaintiff's complaint for the first time. Aspects of the plaintiff's case do not fully support Mr Titshall's analysis of the time at which the plaintiff first attributed his symptoms to the collision.

Nevertheless, this argument goes to the factors referred to in s. 36(3)(a) and, possibly, (e) of the relevant legislation; that is to say the length of and reasons for the delay on the part of the plaintiff in commencing a proceeding against the defendant and the extent to which he acted promptly and reasonably once he knew that he might have a cause of action. I ignore, for the purpose of considering s. 36(3)(a), the unexplained matters referred to in parentheses in paragraph 39 above, although they certainly cast doubt on the plaintiff's assertion that he did not know that he was suffering from a psychological reaction referable to the collision until March 1999.

Mr Titshall's argument may be answered, at least partially, by reference to the fact that what caused Mr Burk to seek advice (legal and then medical) was a newspaper reference to a fellow sailor who was suing the Commonwealth for what Mr Burk and his wife recognised as symptoms similar to those which he suffered. This is not to say, however, that his reason for delay is non-existent or that his failure to take action within the limitation period is now fatal. If that were so there would be no point to the ameliorative legislation. The matter relied upon by Mr Titshall was merely one of many which must go into the synthesis referred to by Buchanan, JA in Tsiadis[19] to enable the discretion conferred by s. 36 to be exercised or not, as the case may be.

As far as s. 36(3)(e) is concerned there is no argument put by Mr Titshall that the plaintiff did not act appropriately and promptly once the label had been put on his condition in early 1999. Any delay in bringing this application past that time was attributable to the defendant not pleading the appropriate limitation Act in its original defence. In any event the plaintiff's application must now be taken to have been made at the time the defendant filed and served its original defence. This was in July 1999; only three months or so after Mr Wilks' examination.

Mr Titshall criticises the plaintiff for not seeking any, or any appropriate, medical, legal or other expert advice about his condition earlier than he did, thus raising the consideration referred to in s. 36(3)(f) of the Act. Certainly, the evidence that the plaintiff failed to tell such doctors as the evidence discloses he saw (prior to consulting his solicitor) of matters which he now relates to the collision, may cause him considerable forensic difficulty if his case against the Commonwealth is ever tried. However, the factual circumstance that he never realised he had a compensable injury until 1999 means that this criticism is simply another "circumstance of the case" which must be taken into account. It is not, of itself, fatal to the plaintiff's application and is, in the context of this case, of very little weight.

Neither counsel raised any matter which was apparently relevant to s. 36(3)(d) of the Act. It is not suggested that the plaintiff suffered from any legal disability at any time since his cause of action arose. If, and in so far as his failure to realise that he had an arguably compensable injury until 1999 could be said to constitute a disability, it has been addressed in consideration of the matters relevant to ss. 36(3)(a) and (e).

Similarly no attention was given by counsel to s. 36(3)(c) of the Act. It was not suggested by Mr Kaufman for the plaintiff that any conduct of the defendant after the cause of action accrued to the plaintiff in any way affected the plaintiff's knowledge of any facts which ultimately led to his making the application with which the Court is presently concerned. He did criticise the defendant for failing to provide counselling or medical assistance to the plaintiff after the collision although how this criticism relates to the present application was not made clear. Mr Kaufman did not suggest that the Commonwealth's failure to provide counselling or medical assistance for Mr Burk after the collision (if that is what happened) in any way affected his knowledge of the facts relevant to the claim he wishes to litigate. In any event the fact that Mr Burk was apparently able to access Naval medical staff over the whole of his career, as appears from his Naval medical record, suggests that at least part (and perhaps all) of the assertion is factually incorrect. I can see no relevance to the matters referred to in s. 36(3)(c) of the Act. There is accordingly no need for further consideration to be given to this sub-section.

The principal debate in this case centred around the question of actual and/or presumed prejudice to the defendant caused by its having to meet a claim brought some 35 years after the event which gave rise to it. This is the factor referred to in s. 36(3)(b) of the Act. That sub-section requires the Court, in considering all the circumstances of the case, to consider the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant. Such prejudice, actual or presumed, need not be directly caused by the plaintiff's delay in issuing proceedings but must be in some way related to it[20].

Mr Titshall, for the defendant, claimed that the defendant could point to a number of matters which demonstrated actual prejudice which would affect any attempt which it made to defend the plaintiff's claim. He submitted that the nature of the plaintiff's claimed illness heightens the importance of a thorough investigation of his medical history. This is hampered, says Mr Titshall, by the absence of a number of sources of information.

Dr Gordon Jamieson is dead. He apparently treated the plaintiff in or about 1970 and/or at the time the plaintiff says he was unable to continue with an accountancy course because of his inability to concentrate, and was unable to continue playing golf because of his injuries. No records of Dr Jamieson can be found.

In 1985 the plaintiff abruptly resigned from his employment, after eighteen years, without any reason other than that he could not continue. He was treated by a Dr Alex Bodisco who has no recollection of him and no notes of any attendances at that or any other time. He may have been treating the plaintiff for some time.

A Dr Maxine Manifold treated the plaintiff in the late 1980s and early 1990s. She has no recollection of the plaintiff although her notes of two attendances in March 1992 are available.

Dr Terry L Avery, a psychiatrist is 92. He saw Mr Burk and his wife on the referral of Dr Manifold in 1992. He is not able, through illness, to provide any information concerning Mr Burk other than that contained in a report which he wrote to Dr Manifold in September 1992 and that which might be able to be gleaned (if they can be deciphered) from three pages of cryptic medical notes which he took at the time of his consultation.

Mr Titshall submits that the absence and/or inability to give evidence or provide information by each of these identified witnesses constitutes significant prejudice from the defendant's point of view. I accept this submission, particularly having regard to the overall context in which information from those witnesses would be relevant.

Further, says Mr Titshall, between the time the plaintiff was discharged from the Navy in 1967 and early 1992 when Dr Manifold and Dr Avery treated him there is no evidence whatsoever of the plaintiff's medical condition. The affidavits filed on his behalf say nothing as to whether he sought medical attention or not, and, if he did, from whom he sought it. The only references in the material of any relevance to this issue are in the histories Mr Burk gave to various experts, including those who diagnosed his condition in March 1999. He told the first of those experts, Mr Wilks, that between 1964 and 1999 he had been occasionally to see GPs to complain of "sleeping difficulties". He said that he had not sought treatment as he had blocked the Voyager/Melbourne incident out. He gave similar if not entirely congruent histories to other experts to which reference has already been made. Thus, says Mr Titshall, the plaintiff's vague assertions of various psychological problems which increased with time cannot be investigated, particularly as there is no material offered by the plaintiff which could provide base material from which an investigation might proceed. There is much in this submission. Some, at least, of its strength is derived from the plaintiff's unwillingness or inability to provide the necessary detail to enable a proper investigation to be conducted.

Mr Titshall also points to the sparsity of lay evidence which is available to the defendant as against the evidence which would or might have been available had this claim been brought closer to the event which allegedly gave rise to it.

As well as these concrete matters upon which the defendant relies Mr Titshall also argued that the mere lapse of time itself raises a presumption of prejudice affecting the defendant's capacity to defend the plaintiff's claim. He referred to a number of authorities which acknowledged that effluxion of time itself, if long enough, gives rise to presumptive prejudice. He referred to a statement of Young, CJ in Tavsanli v Philip Morris (Australia) Ltd[21]. In that case his Honour acknowledged that where ten years elapsed between an alleged industrial accident and the trial of an action arising out of it there arose an inference of prejudice to the defendant even if it could not prove any particular prejudice[22]. Buchanan, JA in Tsiadis[23]acknowledged the same proposition and, of course, so did the High Court (particularly McHugh, J) in Brisbane South[24].

The lack of capacity in the defendant to investigate the plaintiff's claims adequately is magnified by the exiguous nature of the evidence put forward in support of his claim to an extension. His affidavits contain the most general of statements concerning possible psychological problems occurring at unspecified times between 1964 and 1999, they make no reference to any medical or other advice sought (or not sought) and they fail to provide even the most basic chronological details of his medical or psychological history.

Mr Kaufman for the plaintiff acknowledged that the onus of establishing that it would be just and reasonable to extend the time in respect of the plaintiff's claim rested on the plaintiff. He submitted that each of the matters set out in s. 36(3) of the Act needed to be considered.

Mr Kaufman said that the reasons for delay on the part of the plaintiff were that he was not diagnosed as having post-traumatic stress disorder related to the collision until March 1999 and that thereafter he had acted promptly. He submitted that there is no likelihood of prejudice to the defendant or, if there is, then any such prejudice is not substantial. Prejudice alone, he said, is not a disqualifying factor. It must be such as to make a fair trial unlikely. He relied upon Brisbane South Regional Health Authority v Taylor[25] and, in particular, Holt v Wynter[26] and Tsiadis v Patterson[27].

Mr Kaufman submitted that the defendant provided no counselling or medical assistance to the sailors on board HMAS Melbourne after the collision and that the plaintiff had suffered from a disability since the collision which had gone unrecognised until 1999. He said that the medical material which is available, including the Naval medical records which cover the three years immediately after the collision are all available to the defendant and, further, the defendant has demonstrated that it is able to find lay witnesses who can speak as to the plaintiff's condition at the time of the accident and subsequently, such that no actual prejudice can be demonstrated. With respect to the medical material, Mr Kaufman said that the notes and reports contain adequate material to negative any prejudice to the defendant although he acknowledged, in argument, the large gap in the plaintiff's medical and psychological history between 1967 and about 1992. It is this large gap which weakens considerably Mr Kaufman's argument.

Mr Kaufman also submitted that, as the defendant's medical experts had been able to offer opinions as to Mr Burk's condition and its aetiology, there would be no significant prejudice suffered by the defendant in having to defend his claim. But this submission over-simplifies the situation. Each of the defendant's psychiatric experts refers, either expressly or by implication, to the importance of contemporaneous medical information in reaching a firm diagnosis. Dr Allan White reported on his attempt to ascertain the identity of any GP whom Mr Burk may have consulted in respect of the symptoms of which he complained in these terms:-

"In response to my enquiry if he had consulted his general practitioner about those symptoms when he first suffered them in 1968, he was most evasive. He could not recall the name of his general practitioner between the late 1960's until 1975 but he added that the doctor had died."

Dr White then said that Mr Burk told him he had consulted Dr Alex Bodisco between 1975 and 1985 but that Dr Bodisco had gone to Queensland.

Dr David Bell commented on the fact that in circumstances where the potential for suggestion or even prompting of a claimant is high the diagnostic value of a history is effectively corrupted. "In these circumstances, the contemporaneous record becomes the only reliable information on which to base a diagnosis" said Dr Bell.

In this case, where the stimulus for Mr Burk to seek compensation came from a newspaper report of someone else who had done so successfully and was followed, before any medical assessment, by a consultation with his solicitor who apparently arranged that assessment, Dr Bell's comment as to the importance of contemporaneous medical material assumes significant importance. The lack of contemporaneous medical material in this case is accordingly of considerable significance in determining the extent of the prejudice which Mr Kaufman concedes would affect the capacity of the Commonwealth to defend a claim by Mr Burk.

In deciding whether it is just and reasonable to extend time pursuant to s. 36 of the Limitations Act 1985 the Court must consider all the circumstances of the case. In this case, diagnosis of the plaintiff's condition and its aetiology which are, in effect, the only issues to be litigated upon any trial of the plaintiff's claim, depend essentially upon an accurate recounting by him of his medical, social, personal and psychological history since the trauma which is said to have been the cause of his condition. It also involves the elimination of any other possible cause for his present psychiatric condition, if one exists. The nature of the enquiry which will need to be undertaken upon any trial of the plaintiff's allegations renders the effluxion of time and the absence of relevant witnesses more important in a case such as this than it might be in a case of physical injury which depended upon objective medical evaluation. A defendant unable to investigate a plaintiff's history effectively over a significant length of time is, by that fact alone, prejudiced in the defence of a case such as this. Indeed, Mr Kaufman did not contend to the contrary. He answered the proposition by submitting that such prejudice was not, in any event, so substantial as to deny the plaintiff the relief he seeks. In my opinion the prejudice, actual or presumptive, suffered or likely to be suffered by the defendant if the plaintiff is given leave to sue out of time is not insubstantial. It is significant. A fair trial of the plaintiff's action may not be possible. The Court could never be confident that a fair trial could be had in the circumstances.

Having taken into account all the circumstances of the case and having performed the synthesis of the "incommensurable considerations" to which the Court of Appeal referred in Tsiadis I am not satisfied that the plaintiff has demonstrated that it is just and reasonable that the limitation period applicable to his cause of action should be extended so as to enable him to bring the action which he has commenced against the Commonwealth. Accordingly, his summons of 10 October 2001 will be dismissed.

(1) That the plaintiff's application pursuant to s. 36 of the Limitations Act 1985 (ACT) be refused.

(2) That the plaintiff's summons filed 10 October 2001 be dismissed.

(3) That this order be drawn up by the solicitors for the defendant and signed by a Judge pursuant to R. 60.04 of the rules of Civil Procedure.

I shall hear counsel on the issue of costs.

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[2] S. 11 of the Limitations Act 1985 (ACT) provides:

(1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the expiration of a limitation period of 6 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he or she claims.

(2) Subsection (1) does not apply to a cause of action in respect of which another limitation period is provided by this Act."

[3] The Victorian Act in this form applies only to causes of action arising after 11 May 1977: see s. 11(1) Limitation of Actions (Personal Injury Claims) Act 1983. .

[5] Blunden v Commonwealth [2000] FCA 1581 (7 Nov. 2000)

[14] Tsiadis per Buchanan, J at 123 and Callaway, JA at 116.

[20] Lord v Australian Safeway Stores Pty Ltd [1995] VICSC 212; [1996] 1 VR 614 per J D Phillips JA at 622.

[21] Unreported Supreme Court of Victoria 18 September 1989.

[22] See also Soper v Matsukawa [1982] VicRp 96; [1982] VR 948 at 952; Myer Melbourne Ltd v Hammond [1984] VicRp 4; [1984] VR 40 at 49; Kosky v Trustees of the Sisters of Charity [1982] VicRp 98; [1982] VR 961 at 969 per Tadgell, J.

At a glance

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Judgment (115 paragraphs)

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Cases Cited (6)