Covington-Thomas v The Commonwealth

Supreme Court of NSW|1999-11-19|Before: Mr P, Gleeson CJ, Badgery-Parker J

CITATION : Covington-Thomas v The Commonwealth [2000] NSWSC 2 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 21243/95 HEARING DATE(S) : 19 November 1999 JUDGMENT DATE : 3 February 2000

Peter Norman Covington-Thomas (Plaintiff) PARTIES : The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Harrison

Mr M Joseph SC (Plaintiff) COUNSEL : Mr P Jones (Defendant) James Taylor & Co Myrtleford Victoria SOLICITORS : (Plaintiff)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21243/95 - PETER NORMAN COVINGTON-THOMAS v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings, Ss 60G and 60I Limitation Act - Voyager/Melbourne collision)

1 MASTER: The plaintiff by notice of motion filed 6 December 1995 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavits sworn 20 September 1999 and 19 November 1999. The defendant relied on two affidavits of its solicitor Con Ktenas affirmed on 15 November 1999 and 18 November 1999. The plaintiff and Mr Ktenas were cross examined. The defendant opposes the orders sought. 2 For the purposes of this application I find the following facts. I observed the plaintiff carefully when he gave evidence and during cross-examination. I formed the opinion that he was a truthful witness. (1) The plaintiff was born on 9 June 1942 and is now 57 years of age. He now resides in Maroochydore in Queensland.

(2) On 31 July 1961 the plaintiff became a member of the Royal Australia Navy for an initial period of 9 years. He was then aged 19 years and was in good health both physically and psychologically. He expected to serve in the Navy for at least 20 years.

(3) On 29 December 1962 the plaintiff joined HMAS Melbourne as an Ord Seaman Gunner Control and on 1 July 1963 he was the bowman on the Admiral's barge on board HMAS Melbourne.

(4) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision.

(5) At the time of the collision the plaintiff was sitting in the for'ard cafeteria watching a movie. He felt a violent shudder and shaking of the ship. The movie projector and other items were thrown to the deck and someone said "We have run aground." The plaintiff said "We can't have we are at sea". He heard a pipe "All hands to emergency stations". He realised that the ship had hit something. The ship was still vibrating violently and he was in fear of his life. He thought that they were going to sink. He was frightened and confused. He hurried up to his emergency station which was on the Admiral's barge situated on the 3 deck. People were running everywhere in confusion. There was loud noise all round. The plaintiff was the first to the boat base. He climbed up a ladder into the boat base and he could hear screaming and metal scraping down the starboard side. He looked for'ard and could hear steam escaping. He still did not realise that the Melbourne had hit the Voyager. The plaintiff continued looking for'ard and saw the Voyager and he could see people running on it. They were yelling and screaming. He heard a snapping sound and a violent hiss of steam. He was terrified and ducked behind part of the bulkhead until whatever it was went past. He had no idea that it was a ship that they had hit. He was on his own and panicking. The plaintiff asked the petty officer what had happened and he was told that they had hit the Voyager and to get on the barge. A leading stoker and a petty officer got onto the barge along with a sub-lieutenant. They were lowered into the water and told to go to the remains of the Voyager. Her aft section was laid off their starboard quarter and the plaintiff attempted to get alongside her starboard side. The davit that held one of her boats hit them because of the rise and falls of the sea and holed the barge in transom. A rope became tangled around one of their propellers. Water was coming into the barge but they managed to keep one motor working. They were told to take five or six life rafts in tow which contained injured and wounded survivors from the Voyager. As they moved up to take tow of the life raft it began to sink. It was full of survivors. He was fearful and terrified that those men might drown. They had to urgently try and get the survivors out of the sinking life raft and into the Admiral's barge. They pulled the wounded in and lay them where they could. They loaded the Admiral's barge to the hilt until they could not take any more. The petty officer decided that they had to leave some survivors behind because they could not carry any more. A terrible feeling came over the plaintiff when he realised that they had to leave some of the men behind and he was sure that some of them would die. The barge was supposed to hold about twelve but they had about forty on board. There was oil and blood everywhere. The plaintiff was in a state of shock and confusion.

An argument broke out between the sub-lieutenant and petty officer. The sub-lieutenant had ordered that the survivors be dropped in the water and then left to climb up the Melbourne's scrambling net unaided. The petty officer said that some of the men were not capable of doing that. The petty officer told the sub-lieutenant that the petty officer is the coxswain and therefore he had control of the boat. It was the plaintiff's view none of the men were capable of walking. They handed them over hand to hand.

The plaintiff was then ordered to go back to the Voyager and look for more survivors. If there were none they were to circle and search for people in the water. They found Mr Parker, a civilian, who was dead. Both of his legs had been snapped below the knees. They circled around in the water until the early hours of the morning and then went back to the Melbourne. During this rescue operation there were rough seas and the plaintiff thought he was going to die. When he climbed on board the Melbourne he saw bodies lying beside each other everywhere, some were covered in oil.

(6) Up until the time of the collision the plaintiff was a social smoker having one of two cigarettes in the evenings when he had a beer. He had never got drunk except for his 21st birthday and on another occasion in Hong Kong. Shortly after the collision the plaintiff started to drink very heavily. He was having nightmares and could not sleep. He was drinking to steady his nerves. He had flashbacks and was reliving the night of the collision. The nightmares continue to this day. He wakes up feeling completely exhausted and covered in sweat. The plaintiff was angry and had lost all confidence in the Navy. He felt guilty about what had occurred and felt helpless and powerless. At various times over the years since the collision, the plaintiff has been moody, has temper tantrums and has difficulty in forming relationships. He thought that these symptoms were just normal and that he would cope. He was smoking and drinking a great deal as he thought that this would also enable him to cope.

(7) The plaintiff was posted to the HMAS Vendetta for a tour of duty of South Vietnam. Up until going to Vietnam the plaintiff had thought that he had settled down some. During his tour of duty in Vietnam the nightmares and flashbacks became more regular. At the time of his discharge in 1970, the plaintiff was still smoking and drinking heavily and binge drinking. He felt anxious and stressed but still thought that this was normal.

(8) In 1969 the plaintiff married and subsequently divorced in 1988.

(9) On 30 July 1970 the plaintiff was discharged from the Navy.

(10) Between 1970 and 1972 the plaintiff worked for Mayne Nickless. In 1972 he worked for John Lysaght as a security officer. Between 1972 and 1980 the plaintiff worked with Australia Post. In 1980 he worked for a firm called Hedges and Bell. Between 1980 and 1988 the plaintiff worked at Maryborough Technical College. The plaintiff says that he was unable to hold down any of the jobs he has had since the collision because he could not cope with the responsibility or stress involved.

(11) In 1980 the plaintiff went to see the Department of Veterans Affairs as he thought his mood swings, irritability, temper and memory lapses and depression may have been caused by his Vietnam service. He thought the reason that he felt tired, sometimes depressed and had outbursts of temper and mood swings was caused by his service in Vietnam. The Department of Veterans Affairs sent the plaintiff to see a psychiatrist. The Department's psychiatrist told him that he had a small personality disorder, and was not suffering from any psychiatric disorder as a result of anything relating to any part of his service. The plaintiff was told that the small personality disorder was probably due to his mother and father separating when he was four. He accepted this advice and attempted to get on with his life in as normal a way as he could.

(12) On 19 January 1994 the plaintiff lodged a veterans claim form for a disability pension and medical treatment in relation to his service on the HMAS Vendetta in Vietnam. He claimed a personality disorder, with the symptoms being fits of temper and memory loss. He stated that he was not seeking any treatment for it. Other disabilities listed were psoriasis, multiple naevi and keratosis.

(13) In about September 1995 the plaintiff saw an article in a newspaper regarding claimants of the Melbourne/Voyager collision who were being represented by Mr James Taylor, solicitor. The plaintiff spoke to Mr Taylor shortly before Christmas 1995 to ascertain in a general way information about the article that appeared in the paper. Mr Taylor arranged for the plaintiff to be examined by Dr Bob Wu, a psychiatrist.

(14) In late November 1995 the plaintiff was suffering moodiness, irritability, felt stressed at work and the state of his marriage was not good. He attributed his depression to his marriage breakdown.

(15) On 23 December 1995 the plaintiff saw Dr Wu. The plaintiff told Dr Wu of his involvement in the collision and this was the first time that he had been able to do so. He broke down and cried his eyes out. Dr Wu informed the plaintiff that he was suffering from a psychiatric disorder, Post Traumatic Stress Disorder (PTSD) and that this was a direct result of the collision. Dr Wu told the plaintiff that his Vietnam service had aggravated the condition. The plaintiff said he did not know that he had a psychiatric illness caused by the collision until he was told by Dr Wu. Dr Wu said that the plaintiff presented with past and present symptoms and signs of PTSD, that the prolonged duration of this disorder and its biopsychosocial and occupational impact on the plaintiff had been severe, predominantly in his occupational area. Dr Wu said the chronicity of the disorder and the severity of the disorder was consistent with the overwhelming exposure that the plaintiff had within his rescue role following the collision.

(16) The plaintiff says that until he read the statement of claim, which I infer occurred in 1995 at the earliest, he had no knowledge of any negligent acts or omissions by the defendant. He said that until he read the statement of claim he had not known that those negligent acts or omissions had caused him psychiatric damage.

(17) On 29 November 1995 the statement of claim was filed.

(18) On 15 November 1999 the plaintiff became aware for the first time that he had sustained brain damage caused by substance abuse, namely the excessive consumption of alcohol. He was first made aware of this when his solicitor informed him. Linda Troy a clinical neuropsychologist, in her report dated 1 November 1999, stated that the plaintiff showed mild to moderate neuropsychological impairment consistent with chronic alcohol abuse. The plaintiff said that his drinking was a strategy to alleviate the symptoms of PTSD. She said that the attentional and executive dysfunction identified by her are common cognitive sequelae of PTSD, depression and alcohol related brain dysfunction and that any one (or all) of these conditions could account for these findings. However she also stated that the pattern was not inconsistent with the effect of a mild head injury reportedly sustained by the plaintiff while working at Australia Post.

(19) On 6 December 1995 the notice of motion seeking an extension of the limitation period was filed.

The Law 3 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. 4 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 5 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 6 December 1992. 6 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 6 December 1992); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b). 7 The plaintiff relied on s 60I (1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until 23 December 1995 and he did not know that he had brain damage until 15 November 1999. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant's act or omissions until he read the statement of claim in 1995. 8 The defendant submitted that the plaintiff knew shortly after the collision that he suffered from the symptoms of PTSD and knew that he was unable to cope. The defendant submitted that the plaintiff knew he suffered a personal injury, the nature or extent of his injury and the connection between the personal injury and the defendant's acts or omissions within the limitation period. (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 9 Prior to the expiration of the limitation period the plaintiff knew that he suffered from nightmares, could not sleep and when he did sleep woke up covered in sweat, he had loss of confidence, felt guilty, moody, had temper tantrums and difficulty in forming relationships. He was drinking and smoking to excess and that he used alcohol and smoking to steady his nerves. However, he thought that these symptoms were normal and that he would cope. When the plaintiff was in Vietnam, the nightmares and flashbacks became more regular. At the time of his discharge from the Navy in July 1970, he was still smoking and drinking heavily. He felt anxious and stressed but still thought this was normal. 10 In 1980 the plaintiff knew that he was suffering from mood swings, irritability, fits of temper, memory lapses and depression but related these symptoms to his service in Vietnam. A psychiatrist employed by the Department of Veterans Affairs told him that he had a small personality disorder which was due to his mother and father separating when he was four. He was also told that he was not suffering from any psychiatric disorder as a result of anything relating to his Navy service. He accepted this advice and attempted to get on with his life in as normal a way as he could. In January 1994 the plaintiff lodged a claim with Veterans Affairs for his disabilities arising from his service in Vietnam. He referred to a personality disorder, the symptoms of which were fits of temper and memory loss. At about this time he suffered depression but attributed this to his marriage breakdown. However, any knowledge the plaintiff acquired when completing this claim was acquired within the time period stipulated by s 60I(1)(b). 11 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. Up until January 1994 at the earliest, the plaintiff knew that he suffered a range of symptoms which he thought were normal and he had to cope with these. It was in January 1994 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. However it is my view that the plaintiff did not become aware that he suffered a personal injury until the term PTSD was explained to him by Dr Wu in December 1995. The plaintiff has passed through the s 60I(1)(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 12 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness. 13 I have referred to the state of the plaintiff's knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. He knew that he could not hold down employment because of the responsibility or stress involved. However, the plaintiff thought that the symptoms he suffered were normal and he had to cope with them. After the expiration of the limitation period the plaintiff also knew and accepted that he had a small personality disorder not related to his Navy service. He was unaware that he had a diagnosable psychiatric illness until January 1994 at the earliest. It is more likely that he became aware that he had a diagnosable psychiatric injury namely PTSD when he was first told of this by Dr Wu in December 1995. 14 It is my view that the plaintiff did not know the nature or extent of his personal injury until December 1995 when he became aware that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission " 15 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 16 The plaintiff submitted that it was not until he read the statement of claim in 1995, and specifically the particulars of negligence, that he was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents. 17 The defendant submitted that because the plaintiff knew shortly after the collision that there had been a "stuff up" caused by the Navy, in the guise of the Commonwealth he was aware of the connection between the personal injury and the defendant's acts or omissions. 18 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 19 In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows: (a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so; (b) Failing to correctly carry out orders transmitted from Melbourne to Voyager; (c) Failing to correctly receive orders transmitted from Melbourne to Voyager; (d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne; (e) Failing to correctly transmit as orders, signals received from Melbourne; (f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne; (g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne; (h) Failing to alter the course or speed of Voyager in time to avoid a collision; (i) Failing to maintain a constant and efficient watch; (j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur; (k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne; (l) Failing to warn Melbourne that a collision was imminent; (m) Failing to give right of way to Melbourne; (n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition; (o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe; (p) Failing to maintain any or any adequate lookout. 20 Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. 21 The plaintiff gave evidence during cross examination that he knew shortly after the collision that it been an error which caused the collision and someone in the Navy has "stuffed up" and that those responsible were under the guise of the Commonwealth of Australia. This general knowledge does not equate to knowledge of the specific particulars of negligence as set out in paragraph 5 (a) to (p) of the statement of claim. 22 I accept that it was not until 1995 at the earliest, when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant's acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway.

23 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 24 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. 25 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995). 26 The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. 27 I turn now to Taylor's case. In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. 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. 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. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period." 28 and; "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.

In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it." 29 Dawson J, in Taylor said at page 2: "The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant." 30 and; "The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation." 31 He continues: "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 an extension." 32 In Zegarac the Court of Appeal considered the effects of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. 33 Mason P analysed the views of the Judges of the High Court in Taylor's case. The President quoted the passage by McHugh J which begins "Legislatures enact" and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson and McHugh JJ appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. 34 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms. "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 35 Mason P perceived that there may be a distinction between the notion of "significant prejudice" and the notion that delay makes "the chances of a fair trial unlikely". In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendants would suffer "significant prejudice". 36 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of almost 36 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 37 The defendant submitted that they are actually prejudiced because they cannot properly investigate the plaintiff's working history since he left the Navy and also Dr John McGeorge, a psychiatrist, has died. Dr McGeorge was a Naval psychiatrist who during the 1960's had the primary oversight and responsibility for the psychiatric care of survivors in the Melbourne/Voyager collision. There is no evidence that Dr McGeorge actually interviewed the plaintiff, nor that the plaintiff had come to Dr McGeorge's attention. The files in relation to the plaintiff's employment throughout his time in the Navy still exist. There are records of the plaintiff's psychiatric state when he was examined by a psychiatrist for the Department of Veterans Affairs in 1980. Dr Wu who examined the plaintiff in 1995 and diagnosed PTSD has died. However, his records are still available. Those records may or may not be admitted into evidence. 38 On the day before the hearing of this matter, the principal solicitor acting for the defendant, Mr Ktenas made enquiries of Mayne Nickless, John Lysaght, Australia Post, Hedges and Bell and Maryborough Technical College in relation to records which they may have held relating to the plaintiff's employment. If in fact the defendant's solicitor had asked Australia Post, Mayne Nickless and John Lysaght if they had any records in relation to the plaintiff's accident I am not surprised that they replied that they did not. However I infer what they were actually asked about was whether they had any employment records in relation to the plaintiff. Mr Ktenas was told that they did not hold records in relation to Mr Covington-Thomas' accident. Ms Judy Cauldwell of Maryborough College informed the defendant's solicitor that it was their policy to only keep records for seven years, and while she could not be absolutely sure her enquiries revealed that the plaintiff's documents had been destroyed. The plaintiff's employment with Mayne Nickless, John Lysaght and Hedges and Bell cover a very small period of time of about maybe two years and are not significant. It is the absence of records from Maryborough College and Australia Post that are matters of concern as the plaintiff has alleged that he is unable to hold down employment. 39 The defendant's solicitor has not sought taxation records which may still be in existence. He has not asked the plaintiff whether he has any records in his possession. Nor have any enquiries been made of the plaintiff to ascertain details of the plaintiff's supervisors or fellow workers so investigations can be made of them. The defendant is not obliged to carry out this task. The onus lies on the plaintiff to negate any actual prejudice, if he can. However, I conclude that the enquiries made by the defendant were cursory. There may be other historical records available or the records may come to light when more extensive searches are made to locate them. Subpoenae have not yet been issued. I accept that there may not be historical records available from some of the plaintiff's employers. 40 However, the gaps may be filled by the calling of witnesses, if written records are not available. It is Australia Post and Maryborough Technical College which are important because the plaintiff's period of employment with them was for a significant period of time namely eight years each. I accept that they may have provided contemporaneous records and details of the plaintiff's employment history and perhaps why the plaintiff's employment was terminated or why the plaintiff's employment with that organisation came to an end. In relation to Australia Post, these records are perhaps of more importance because during his employment with it he had a bike accident which Ms Troy postulates may be a cause of his brain damage. As a result of this accident he lost consciousness for four hours and was disoriented for the remainder of the day. He had 10 days off work. He is not aware of any cognitive, behavioural or affective sequelae of this injury. It was considered by Ms Troy that these symptoms indicate the plaintiff suffered mild traumatic brain injury as a result of the accident. There may be hospital and doctors' records in relation to this accident available on subpoena. 41 In relation to what the plaintiff would have earned had he remained in the Navy, these amounts can be ascertained. In relation to past loss of income, if accounting records are not available, recourse can be made to the award rates.

42 This is a finely balanced borderline case. Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. Not all of the plaintiff's prior employment records may be available. There are Navy records showing that at the time when the plaintiff joined the Navy he was in good physical and psychological health. There is documentary evidence of the plaintiff's psychiatric state during his period of service in the Navy. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean. The defendant has access to 1980 Department of Veterans Affairs records. There are current medical records available. However the records from past employers most significantly Australia Post and Maryborough Technical College may not be available. 43 After I have taken into account all of these matters, I am not satisfied that the "chances of the defendant obtaining a fair trial are unlikely" nor am I satisfied that the defendant will suffer "significant prejudice". It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause. 44 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 29 November 1995.

(2) Costs are costs in the cause. **********

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