Diston v Commonwealth

Diston v Commonwealth - [2001] NSWSC 1142 - NSWSC 2001 case summary — Zoe

[33]

(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.

[35]

(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.

[36]

(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;

[38]

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?

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)