Diston v Commonwealth

Mr M Joseph SC with Mr W Walsh COUNSEL : (Plaintiff)

Mr D Brogan (Defendant) James Taylor & Co Myrtleford, Victoria SOLICITORS : (Plaintiff)

Australian Government Solicitor Sydney CATCHWORDS : Extension of time to commence proceedings - Sections 60G and 60I Limitation Act - Voyager/Melbourne collision LEGISLATION CITED : Limitation Act 1969 (NSW) Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 CASES CITED : Szerdahelyi v Bailey; Ortado v Bailey (NSWSC, unreported, Badgery-Parker, 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) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995) Holt v Wynter [2000] 49 NSWLR 148 McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001 DECISION : (1) The plaintiff's notice of motion filed 14 August 1997 is dismissed; (2) The plaintiff is to pay the defendant's costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20774/97 - WALTER CLIVE DISTON v COMMONWEALTHOF AUSTRALIA

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

1 MASTER: By notice of motion filed 14 August 1997 the plaintiff 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 affidavit sworn 9 November 2000. The defendant relied on the affidavits of Con Ktenas affirmed 19 May 2000 and 6 June 2001. 2 I observed the plaintiff carefully while giving evidence and being cross examined. He had a reasonable recall of events. The plaintiff admitted firstly, that he had provided some untruthful information in a form relating to the Voyager/Melbourne collision (the collision) and secondly, that he failed to mention the collision when he consulted a psychiatrist, Dr Seabridge. Because these two matters are of concern, I shall refer to them in more detail later in this judgment. 3 For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts. (1) The plaintiff was born on 13 April 1931 and is 70 years of age. He presently resides in Vermont South, Victoria. (2) The plaintiff enlisted with the Royal Australian Navy on 13 October 1948 at the age of 17 years. At the time of enlistment, he was in good health both physically and psychologically. Upon entry he passed medical and psychological tests. It was the plaintiff's intention to make a career in the Navy.

1950 explosion on board the Tarrakan (3) In 1950, the plaintiff was on board the Tarrakan when an explosion occurred. The plaintiff was only 18 years of age. Seven sailors and one dockyard worker, who were friends and co-workers of the plaintiff, were killed in very close proximity to him (t 2). The plaintiff was burned on both shoulders and on his left upper arm and forearm. The plaintiff and other sailors were trapped in the hull for 30 minutes, although it seemed like an eternity to him. He spent two weeks at St Vincents hospital. He admitted that this event was possibly the cause of his alcohol abuse. The plaintiff gave evidence that after this explosion he had anxiety, bad nerves, and fear of confined spaces. He increased his smoking. Six months later the plaintiff was still nervy but had cut down on his alcohol consumption. The alcohol helped him drop off to sleep. He dreamt of explosives. (4) In 1964, the plaintiff was aware that he had constant intrusive thoughts and nightmares. The plaintiff suspected these symptoms were linked to the Tarrakan explosion. However, he thought that he was getting over it (t 4).

The collision and it's aftermath (5) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff was working as a Petty Officer Cook. (6) On 10 February 1964 the Voyager was sunk when she collided with the HMAS Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives. (7) At the time of the collision, the plaintiff was off duty and was walking around 2 deck on the starboard side. He felt a shudder, then a violent jolt and was almost thrown off his feet. At first he thought the ship had run aground, then he saw something large pass down the side of the ship. He heard someone say that they had hit the HMAS Voyager and that the Melbourne was taking on water. The plaintiff was afraid for his life and for those of his fellow servicemen, particularly those on the Voyager. The plaintiff felt disoriented and numb. He heard the pipe "hands to collision stations" and the plaintiff rushed to his mustering point on the quarter deck. (8) The plaintiff began to help get the survivors from the Voyager on board the Melbourne. The plaintiff observed that the men from the Voyager looked terrified, nervous and shocked. They were covered in oil, some were vomiting and others were bleeding and in obvious pain and greatly distressed. The plaintiff felt terrified about men being trapped on the Voyager and sinking to the bottom. The plaintiff worked all night helping the survivors onto the Melbourne and getting them to the personnel who could attend to their treatment and comfort. When the plaintiff returned to his mess in the early hours of the morning, he didn't sleep at all. When the Melbourne made it's way back to Sydney, the plaintiff was afraid that the ship would sink. This version of events is at odds with the version he gave in questionnaire.

(9) On 25 February 1964, the plaintiff completed a questionnaire. The document was headed "Royal Commission into Loss of HMAS Voyager & Rescue Operations". The plaintiff had forgotten that he completed this document until he was shown it by his solicitor the day before this application was heard. In that document the plaintiff stated that he was in bed and not on duty at the time of the collision so he did not see the collision. He answered the question "What role did you play in the rescue operations?" as "made tea and coffee" for the survivors. In the cross examination the plaintiff admitted that the statements (except for making tea and coffee) were untrue. His explanation for writing untrue answers was disingenuous. He explained that he could give an untrue version of events because the questionnaire was not a legal document. At this time the plaintiff was a man in his early 30's not a young recruit. He said that he did not know the purpose to which the documents were to be put (t 5 & 6). The plaintiff's further explanation for not giving a true account of his involvement in the rescue was because he did not want to give evidence at a hearing because he had done so after the Tarrakan explosion and had been made to feel like a scapegoat. He did not want to repeat that experience.

(10) When the plaintiff arrived in Sydney, he was told not to discuss the collision with anyone. He was given leave and went ashore. The plaintiff immediately got drunk. He went to several hotels and was subjected to abuse and insults from members of the public. The plaintiff felt saddened, depressed, ashamed and guilty.

(11) Once the Melbourne was repaired the ship sailed for exercises, the plaintiff was afraid of being at sea. He did not want to go below deck and felt stressed in confined spaces. The plaintiff would get upset, panicky and fearful during exercises, particularly those which required the whole ship to be sealed up. When the plaintiff was ashore, he felt nervous in lifts and in crowded situations and unfamiliar places. The plaintiff found it difficult to sleep and he would wake up in a state of panic. He was having nightmares about ships sinking. The plaintiff began to drink heavily to help him sleep. His drinking increased from that of being a moderate social drinker before the collision to drinking about seven stubbies per night. The plaintiff also increased his smoking from about five cigarettes a day to 40 per day shortly after the collision (t 2).

(12) The plaintiff's evidence is that he thought all his symptoms were a normal reaction and he tried to cope with them in his own way. This included drinking to blot out the memories and to calm his nerves. The consumption of alcohol helped him sleep. He thought that the symptoms would gradually subside over time, but as time went by he actually became more distrustful of the Navy and his superiors. The plaintiff lost all confidence in the Navy and in his ability to continue. He felt aimless and that he had no future.

(13) In 1971, when the plaintiff was 40 years of age, it was time for him to re-engage in the Navy. He knew he could no longer continue and had to get out, so he was discharged.

(14) Upon discharge from the Navy, the plaintiff found himself drifting from job to job. His first position was as a service station attendant, in Melbourne. Six months later the plaintiff purchased a truck and became a driver on a sub contractor basis for Melbourne Transport. After 18 months the company became insolvent. In May 1973, the plaintiff left Melbourne Transport and obtained a job with Coates Patten, wool dyers in Melbourne, working as a factory hand. However the plaintiff could not stand the confined spaces and left after one week. In May 1973, the plaintiff next obtained employment with a windscreen wiper manufacturing company, Trico, where he worked until August 1973.

(15) From the end of August 1973 to mid 1974, the plaintiff worked as a cook with the Taxation Office in Melbourne. However, again the plaintiff did not like working inside. He was irritable and argumentative and felt anxious. The plaintiff was drinking heavily at this time and having nightmares about the collision.

(16) In mid 1974, the plaintiff decided to try to go back to sea and rang a friend of his with the Marine Cooks and Stewards Union, who obtained a job for him as a cook on the ship "Myarra". The ship sailed from Geelong, Victoria to Western Australia and back. During the whole of the journey the plaintiff was terrified as he could not cope with the confined spaces or being at sea. Despite the fact that he was earning good money, the plaintiff had to leave the job as being at sea affected his nerves.

(17) From July 1974 to October 1980 the plaintiff worked for different courier companies as a driver. He found that driving suited him better as he was outside and moving around. The plaintiff was drinking very heavily after finishing work. The plaintiff left one of these positions because he was irritable and unable to get on with the other employees.

(18) From October 1980 to December 1981, the plaintiff worked as a cook, firstly at the Royal Children's Hospital in Melbourne, for 10 days, and secondly at the Pine Lodge Private Psychiatric Hospital in Dandenong. At the second job the plaintiff was able to take short breaks by walking outside and this helped him cope with the job. However, in the end the plaintiff felt that he needed to leave the job and find a new one where he could be outside.

(19) In 1982 until April 1996 the plaintiff was with Armaguard. Even though he was driving armoured vehicles he felt safe and secure.

(20) At the end of 1996 or the beginning of 1997, the plaintiff was talking with a friend who asked him if he had seen an advertisement in the paper concerning Melbourne/Voyager collision. The friend showed him a copy of the advertisement and the plaintiff consequently contacted James Taylor Solicitors. Mr Taylor arranged for the plaintiff to go and see a psychiatrist, Dr Brendan Holwill.

(21) On 14 August 1997, the plaintiff filed a statement of claim.

(22) On 6 December 1995, the plaintiff filed a notice of motion seeking to extend the limitation period.

(23) On 1 October 1997, the plaintiff consulted Dr Holwill. This was the first time that he had consulted a psychiatrist. Dr Holwill took the plaintiff through a thorough history and they had a long discussion about the collision. Dr Holwill informed the plaintiff that he was suffering from chronic Post Traumatic Stress Disorder (PTSD), an anxiety disorder and a substance abuse disorder. Dr Holwill informed the plaintiff that all the psychiatric conditions were a consequence of the plaintiff's involvement in the collision and that the plaintiff's psychiatric conditions had contributed to his substance abuse. Prior to consulting Dr Holwill, the plaintiff was unaware that he was suffering from any psychiatric illness that had been caused by the collision.

(24) On 11 October 1997, Dr Holwill diagnosed the plaintiff as suffering from a PTSD of mild severity and this was associated with a mild to moderately severe generalised anxiety disorder and chronic low grade substance abuse (alcohol). Dr Holwill was of the view that these conditions could be directly attributable to the plaintiff's experiences while serving in the Royal Australian Navy in particular the incidents on the Tarrakan and on the Melbourne.

(25) In late 2000, the plaintiff made an application for a disability pension for gout, reflux, hypertension and alcohol dependence.

(26) On 12 December 2000, the plaintiff consulted Dr Seabridge. The plaintiff did not mention the collision to Dr Seabridge even when he was explaining the events in the Navy that brought about his alcohol dependence and abuse. The plaintiff's explanation was that the pensions officer at the Noble Park RSL told him not to bring the Melbourne/Voyager into it because it was a separate claim (t 7.50). The plaintiff did not mention the Tarrakan accident in his affidavit but said that it was his solicitor who told him not to include it (t 8.25).

The Law 4 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. 5 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)." 6 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 those or he ought not to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 14 August 1994. 7 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 14 August 1994); 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). 9 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 he saw Dr Holwill in October 1997. 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 October 2000. The defendant submitted that the plaintiff knew he had a pre-existing condition caused from the explosion aboard the Tarrakan in 1950. The defendant submitted that the plaintiff knew or ought to have known that 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 " 10 In 1950, the plaintiff witnessed the death of eight men in an explosion on board the Tarrakan. Seven of them were sailors and were the plaintiff's friends. The plaintiff was burned on both shoulders and left upper arm and forearm. The medical reports are available. He spent two weeks in St Vincents hospital. The plaintiff was trapped in the hull for 30 minutes, although it seemed like an eternity to him. He admitted that this event was possibly the cause of his alcohol abuse. The plaintiff gave evidence that after this explosion he knew he suffered from anxiety, nerves, and fear of confined spaces and had constant intrusive thoughts and nightmares. He knew that his smoking had increased. He knew he dreamt of explosives. Six months after the explosion the plaintiff knew that he was still nervy and but had slowed down his drinking. The plaintiff suspected, but did not know that something was wrong. He did not so much link these symptoms to the Tarrakan explosion but he was aware that the Melbourne/Voyager stress brought it all on again (t 4). It took many years for the plaintiff to get over the Tarrakan explosion. Prior to the collision, but after the explosion the plaintiff knew that he suffered from the pre-existing symptoms described above. 11 After the collision and prior to the expiration of the limitation period the plaintiff knew that he was afraid of being at sea. He did not want to go below deck and felt stressed in confined spaces. The plaintiff would get upset, panicky and fearful during exercises, particularly those which required the whole ship to be sealed up. When the plaintiff was ashore, he felt nervous in lifts, in crowded situations and unfamiliar places. The plaintiff found it difficult to sleep and he would wake up in a state of panic. He was having nightmares about ships sinking. The plaintiff began to drink heavily to help him sleep. His drinking increased from that of being a moderate social drinker before the collision to drinking about seven stubbies per night. The plaintiff also increased his smoking from about five cigarettes a day to 40 per day shortly after the collision (t 2). 12 The plaintiff's evidence is that he thought all his symptoms were a normal reaction and tried to cope with them in his own way. This included drinking to blot out the memories and to calm his nerves. The consumption of alcohol helped him sleep. He thought that the symptoms would gradually subside over time, but as time went by he actually became more distrustful of the Navy and his superiors. The plaintiff lost all confidence in the Navy and in his ability to continue. He felt aimless and that he had no future. 13 The symptoms of nightmares, excessive alcohol consumption, anxiety, nerves, constant intrusive thoughts, fear of confined spaces and an increase in smoking are symptoms the plaintiff experienced after both the explosion and the collision. The plaintiff's evidence is that he did not choose to re-enlist after the collision. Once the plaintiff was discharged from the Navy he was able to hold down employment.

14 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 the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. This is a borderline case. It is my view that the plaintiff knew that the symptoms he experienced were similar and related firstly, to the explosion and secondly, to the collision. However, I accept that he thought that his reaction to both the explosion and the collision were normal reactions, and would abate with the effluxion of time. I accept he did not appreciate that he suffered from a diagnosable psychiatric condition that would not abate in time. However, I am of the view that he knew that he suffered from the symptoms which formed the basis of the diagnosis of PTSD. It was in October 1997 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 Holwill October 1997. The plaintiff has passed through the s 60I(1)(a)(i) gateway. As the plaintiff thought that his reactions to the collision were normal, a reasonable person in the position of the plaintiff would not have acted differently. The plaintiff ought not to have become aware of the personal injury earlier than 1 October 1997.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 15 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). The "extent" of injury must include all of its consequences. According to Harris, s 60I(1)(a)(ii) is designed to provide a remedy where the most serious consequences of an injury arise after the expiration of the limitation period (p 11). However an applicant may have been aware of the extent of his or her injury even though he or she does not expect all the precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all its pathological or psychological incidents (p 13). If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. Harris is a case of a physical disease of gradual onset and not one of psychiatric illness. 16 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. As previously stated the plaintiff was unaware that he had a diagnosable psychiatric illness namely PTSD until he was first told of this by Dr Holwill in October 1997. In this particular case, the extent of the plaintiff's symptoms did not markedly deteriorate after the expiration or the limitation period. In accordance with Harris, it is my view that on the balance of probabilities the plaintiff was aware of the extent of his injury outside the period stipulated by s 60I(1)(b). This part of the plaintiff's claim fails. 17 Although the plaintiff was aware of the symptoms from which he was suffering he did not appreciate that he suffered from a diagnosable psychiatric condition, ie., he did not know the nature of his personal injury until October 1997 when he was told by Dr Holwill that he had a psychiatric condition namely PTSD. This falls within the period stipulated by s 60I(1)(b). For the reasons given under s 60I(1)(a)(i) the plaintiff ought not to have become aware of the nature of his injury before 1 October 1997. 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 acts or omissions " 18 The plaintiff submitted that it was not until he read the statement of claim in 2000, 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. 19 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 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). 20 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. 21 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. 22 The plaintiff did not follow the Royal Commission. At no time prior to reading the statement of claim was he aware of how the collision occurred. I accept that it was not until 2000 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 plaintiff relies on s 60G and s 60I (1)(a)(i)(iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128; McLean v Sydney Water Board Corp [2000] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2000] NSWCA 315. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. The major issue in this case is that of prejudice. 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 made a submission that the plaintiff had no real case to advance because on one version of events he did not witness the collision but merely made cups of tea for the survivors. The plaintiff disputes this version of events and has deposed that he took on a role in rescuing the survivors. This factual dispute is one which would need to be resolved at trial. 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 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one to be fair; it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001. 28 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 37 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. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean. 29 The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. In relation to the employment records of: The Total Service Station and Melbourne Transport, electronic searches failed to locate these companies and therefore no employment documentation could be obtained; in relation to Coates Patten Wool Dyers, no director or former employee of the company could be located and the company has been deregistered; in relation to Trico, no records are kept beyond a seven year period and it is unlikely that any records would remain with regard to the plaintiff, since he had only worked for a period of three months; in relation to the plaintiff's employment on the ship the "Myarra", electronic searches have failed to identify or ascertain the ownership details of the ship; in relation to Pine Lodge Private Psychiatric Hospital, the hospital does not keep records for more than seven years and was unable to confirm the plaintiff's employment; and in relation to the Royal Children's Hospital, the hospital confirmed that the plaintiff was employed by the hospital in 1980 but could not nominate any former co-workers or supervisors of the plaintiff. All of these records cover significant years of the plaintiff's employment history because as they cover the period immediately after the plaintiff left the Navy. The personnel records may contain information to show why the plaintiff left these employers. The tax returns during this period have not been produced. The missing records mean that there are significant gaps for the defendant seeking to investigate the reasons why the plaintiff left employment. 31 The Melbourne Taxation Office confirmed that the plaintiff had been employed by them from 6 January 1975 to 24 April 1975. The plaintiff's tax returns from 1986 to 1996 have been produced (Ex C). In relation to TNT, due to company integration the company is unable to locate any personnel files for the plaintiff and are unable to identify any supervisors or workmates of the plaintiff; in relation to Jetspress and Armaguard (subsidiary companies of Mayne Nickless), the company is unwilling to provide any information with respect to former employees. This seems to be an odd response from Armaguard. However, at present I accept that there is no documentary evidence produced by Armaguard, but copies of tax returns during this period are available. 32 The defendant's solicitor deposed that a search of the psychology records failed to locate any psychology record for the plaintiff. It appears that the plaintiff never saw a psychologist or psychiatrist while in the Navy, so this is not a cause for concern. However, Department of Veterans Affairs pension and medical files do exist, as does the plaintiff's record of service in the Navy. The medical records of Dr Burgess, the plaintiff's general practitioner, from 1980 to 1995 are available. Medical records of Dr Pan, Dr Roger O'Keefe and Dr Seabridge are available. The medical evidence available is suffice. 33 In terms of testing the veracity of the plaintiff's evidence, he has given two differing accounts of the role he played on the night of the collision. The plaintiff has shown that his evidence is unreliable and this makes it more difficult for the defendant to investigate his claims, particularly in relation to the most important issue of did he actually witness the collision or was he in bed?

34 After I have taken into account all of these matters, particularly the gaps in employment and the veracity of the plaintiff evidence. I am not satisfied that there will be a fair trial between the parties. The defendant will suffer significant prejudice if a trial is to be held. It is my view that the plaintiff has not discharged his onus. It is not just and reasonable that an order be made extending the limitation period. Costs normally follow the event. The plaintiff is to pay the defendant's costs. 35 The orders I make are:

(1) The plaintiff's notice of motion filed 14 August 1997 is dismissed.

(2) The plaintiff is to pay the defendant's costs. **********

Last Modified: 12/17/2001 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.