Burns v Commonwealth

Supreme Court of NSW|1999-03-17

New South Wales Supreme Court CITATION : Burns v Commonwealth [1999] NSWSC 223 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21239/95 HEARING DATE(S) : 17 March 1999 JUDGMENT DATE : 23 March 1999

Warwick Thomas Burns (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : P - Mr M Joseph SC, Mr M Brabazon D - Mr T J Morahan SOLICITORS : P - James Taylor & Co D - Australian Government Solicitor CATCHWORDS : Extend limitation period; prejudice ACTS CITED : Limitation Act 1969, ss 60G, 60I CASES CITED : Darcy v Commonwealth of Aust (25.7.97) Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 DECISION : Extension granted

5 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 29 November 1995. The plaintiff claims damages for personal injury. A cause of action founded on negligence is alleged. 2 The defendant has filed both a Notice of Appearance and a Defence. There are a number of defences (including a defence founded on the provisions of the Limitation Act, 1969 (the Act)). 3 A Notice of Motion was filed on 6 December 1995. It seeks, inter alia, an order extending the relevant limitation period. The order is sought pursuant to section 60G of the Act. 4 The plaintiff has sworn an affidavit. On 10 February 1964, he was a member of the crew of HMAS Melbourne when it collided with HMAS Voyager. The Court has previously dealt with and granted many applications arising out of that collision. 5 The affidavit contains, inter alia, the following:- "6. At the time of the collision I was in the starboard seaboat space waiting to go on watch. The HMAS Melbourne was in darkness I was suddenly pitched forward in the darkness. I thought a plane had gone over the side. I then saw the outline of the stern section of the Voyager scrape down the starboard side. I was standing under the lifeboat and the superstructure of the Voyager struck the lifeboat above my head. I was paralysed with fear and lost all body sensation. I thought the Voyager would explode. I called out to shipmates to stand back. I climbed into the lifeboat and called to the Sick Bay attendant to get into the boat. No-one knew how to get the boat into the water. I felt useless and waited for the boat crew to come along and lower it. I was then told to get out of the boat and they took over. I then helped put scrambling nets over the side and helped survivors getting up on the nets. I helped with blankets for the survivors and was told to take buckets of hot water to the hangar which had been set up as a sick bay. When I got there and saw all of the survivors covered in oil I could not handle it and I put the buckets down and left. One of my friends Barry Lane also known as Barry Sharkey was on the Voyager and I later learned he had been killed. This affected me greatly. I had only been at sea for two nights when the collision occurred.

I stayed in the Navy for another five years but I lost all ambition. I had no faith in the system. I had intended making a career of the Navy and hoped to become an Officer. After the collision I lost ambition. I relived the collision every day. I became aggressive and I could not deal with authority. I had began to drink to excess. I had difficulty with relationships and could not handle crowds.

I was desperate to get out of the Navy but I could not find a way. I came under suspicion for allegedly taking drugs. I was not using drugs but I then realised this would be a means of obtaining a discharge. I went on leave in early January 1969. I came back with long hair and dressed like a hippy. I pretended I was on drugs. I was then transferred to the Navy hospital at HMAS Penguin and treated with a course of drugs. I stayed in the hospital for approximately one month. After a further month on shore I was discharged on the basis of my unsuitability for the Navy. This was in April 1969. On one hand I was greatly relieved when told I was to be discharged but on the other hand there was a feeling of great loss because my Navy career was over. After I left the Navy I drifted around for a few months. I came to Melbourne and took a cleaning job at the Princess Theatre but only stayed for a few weeks. I then moved from job to job staying only a few weeks in each.

In 1970 I married but the relationship broke down and we parted in 1972. I found it extremely difficult to relate to people.

The longest term of employment was with the Australian Academy of Hairdressing where I worked as a cleaner. This lasted for three years but I left on 2 December 1997. I am currently unemployed in full time work and in receipt of a Department of Veterans Affairs Pension.

Before the collision I was an innocent young kid with very little life experience. I was looking forward to a career in the Navy. I had wanted to be in the Navy since I was ten years old but after the Voyager I just lost faith in the system and had no ambition at all. I became very anxious and depressed and lost confidence in myself. I did not seek any medical help. I did not understand that the collision and its aftermath caused or was capable of causing me psychiatric injury or damage. I did not know that the various symptoms which I had experienced during my life since the sinking of the Voyager were attributable to a psychiatric disorder in particular Post Traumatic Stress Disorder.

In early 1995 I attended the Vietnam Veterans Counselling Service in South Melbourne for counselling and was told that I was suffering from Post Traumatic Stress Disorder. Now produced and shown to me and marked 'WTB2' is a copy of a report from the Vietnam Veterans Counselling Service dated 9 September 1996. I have read the report and save for minor immaterial discrepancies it accurately records what I told my counsellor.

Having consulted the Vietnam Veteran's Counselling Service I now have some understanding of the effect the Voyager collision had on my life." 6 The plaintiff gave brief supplementary oral evidence and was cross-examined. Documentation (including a report from Dr Holwill dated 30 November 1998) was tendered on his behalf. The defendant did not tender any affidavit material or other documentation. 7 During the hearing, it was said that the issues were:- 1. whether or not the threshold requirements of section 60I of the Act had been satisfied; and 2. the discretionary consideration of the matter of prejudice. 8 Section 60I prohibits the making of an order under section 60G unless the Court is satisfied of the matters listed in (a) and (b) thereof. 9 In the case of the matters listed in (a), the plaintiff relies on those appearing in (i) and (ii). There was a need to address similar considerations in Darcy v The Commonwealth of Australia (25 July 1997). Ultimately, the defendant made no submissions on the question of whether or not the plaintiff had satisfied the threshold requirements. I am satisfied that the plaintiff has met these requirements. 10 I now turn to the other matter argued (the question of prejudice). This is a question which excited limited argument only. 11 The plaintiff was discharged from the Navy in 1969. The defendant says that there was a real void between 1969 and 1995 (when these proceedings were commenced). In 1970, the plaintiff saw a general practitioner and was referred to a psychiatrist. These attendances concerned, inter alia, facial pain and domestic problems. He saw a general practitioner on about three other occasions for medical problems. The facial pain was never satisfactorily diagnosed and eventually it went away. The plaintiff does not recall the names of any of the practitioners seen by him. It seems probable that the records relating to these visits will not be available to the defendant. 12 Prior to his discharge, the plaintiff served in Vietnam on HMAS Hobart. The ship was involved in shore bombardment exercises and was shelled whilst the plaintiff was on it. It is conceded that this service aggravated the plaintiff's underlying condition. 13 There is no evidence led by the defendant to establish actual prejudice. It is not said that the defendant's documentation has been lost or destroyed. The defendant does not have the advantage of material relating to treatment received during the 1969-1995 period. However, it is difficult to see this material having more than minor significance. Otherwise, there is the void referred to by the defendant. The period is lengthy. The running of the defendant's case at trial will be made more difficult by the delay. 14 To the extent that it is applicable to this case, I bear in mind what was said in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866. There is prejudice that will be suffered if the order sought is granted. It is relevant to the question of damages. If an order is made, the defendant loses the benefit of the statutory defence. I take these matters into account with the other relevant circumstances in reaching my decision on this application. 15 The plaintiff claims to have a cause of action to which section 60G applies. It is not said that there is a lack of credible evidence to support the contention that he suffers from Post Traumatic Stress Disorder. In the opinion of Dr Holwill, the plaintiff "presents with a now chronic moderately severe" disorder "with associated moderately severe depression". It is not said that he does not have an arguable cause of action. It may be productive of substantial damages. 16 The onus rests with the plaintiff to satisfy the Court that he has an entitlement to relief. In the relevant circumstances of this case, I am satisfied that the onus has been discharged. 17 I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case. 18 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 29 November 1995. I reserve the question of costs. The exhibits may be returned.

Last Modified: 03/23/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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