Duffy v The Commonwealth

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

Mr D J Brogan (Defendant) James Taylor & Co Myrtleford Vic SOLICITORS : (Plaintiff)

Australian Government Solicitor (Defendant) CATCHWORDS : Extension of time to commence proceedings - Ss 60G and 60I Limitation Act - Voyager/Melbourne collision LEGISLATION CITED : Limitation Act 1969 (NSW) Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) CASES CITED : Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Szerdahelyi v Bailey; Ortado v Bailey; Lewis 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 Limited 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 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 14 August 1997; (2) Costs are reserved.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20782/97 - NORMAN CHARLES DUFFY v THE COMMONWEALTH OF 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 19 October 2000. The defendant relied on affidavits of Con Ktenas affirmed 19 May 2000, 6 September 2000 and June 2001. 2 I observed the plaintiff carefully while being examined and cross examined. I formed the view that he was a truthful witness. 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 20 October 1940 and is 60 years of age. He presently resides in Portland, Victoria. (2) On 26 August 1963, when the plaintiff was 22 years of age, he enlisted with the Navy. At the time of enlisting the plaintiff was in good health both physically and psychologically. The plaintiff enlisted for an initial period of nine years. He was full of confidence and looking forward to making the Navy his life long career. At the end of the plaintiff's training he was allotted to join the crew of the HMAS Voyager, however at the last moment he was sent to join the Melbourne instead. The plaintiff was separated from some of his good friends who were sent to join the Voyager. (3) 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. (4) 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. (5) At the time of the collision, the plaintiff had just finished his duties at the laundry and was cutting another shipmate's hair when he heard the pipe "full astern" come over the speakers. Next the plaintiff heard a very loud bang and a sudden violent jolt which sent the plaintiff flying and caused him to hurt his knee as he crashed to the floor. The plaintiff heard the pipe "collision stations". The plaintiff felt disorientated and shocked and was in fear for his life. He proceeded to his emergency station which was to man a phone in the aft steerage in the bilge of the ship. On his way there, the plaintiff attempted to find out what had happened. He was told that a plane had exploded on the deck, that the ship had been torpedoed and that the ship had run aground. The water tight doors were being shut as the plaintiff ran to the stern of the ship and when he arrived at his station he was sealed in. The plaintiff telephoned the Bridge to inform them of his location. The Bridge told him to ring back when the gauge the plaintiff was monitoring showed the ship was listing by 15 degrees. However, the gauge already showed a list of 25 degrees. The plaintiff was in a state of fear and was terrified for his life. He was left alone in a very small area at the very bottom of the ship in the stern and was required to wait for the gauge to drop. The plaintiff was constantly looking at the bulkheads expecting an explosion or a gush of water to come in and drown him and was expecting to hear the order to abandon ship. He was shaking and perspiring in fear. He was conscious of his sore knee and was hoping that if he managed to get out of his position he wouldn't have to swim too far. However, the plaintiff was aware that the ship was about 20 miles out to sea and was wondering about life rafts and what he would be able to stay afloat on. The plaintiff was aware that torpedoes usually hit the stern of the ship and he was also afraid of this. Although the plaintiff was able to carry out his duties all he wanted to do was get out of where he was as quickly as possible and reach the top of the deck.

(6) When the ship levelled out, the plaintiff was given the all clear to be released from his collision station. He ran for the flight deck. On reaching the flight deck the plaintiff encountered a scene which he described as "like a war zone". He saw men covered in oil and shivering and vomiting on the deck. The plaintiff was relieved to be on the flight deck. However, the plaintiff felt guilty as he realised that he had been safe all along whilst his mates had suffered, especially those who had gone down with the Voyager. He thought of his friends who were trapped in the Voyager at the bottom of the sea in air pockets, particularly a friend named Woodward from Queensland.

(7) In June 1964, the plaintiff's left knee began to deteriorate and he was sent to a Naval hospital in Sydney where he was treated with exercise and physiotherapy. The plaintiff believes that a medical recommendation for discharge was made but was later rescinded and he was returned to the HMAS Melbourne on light duties. The pain in the plaintiff's left knee was aggravated by the constant climbing of stairways. The plaintiff was also having persistent nightmares of the accident. He had an overwhelming sense of guilt that he had survived. He loathed and dreaded being on board the Melbourne and was fearful below deck. He felt incompetent and worthless and no longer had any trust in the Navy. While he attributed these symptoms to the collision he thought that they were a normal reaction to the collision and that they would resolve given time.

(8) In 1964 the plaintiff was assigned to the HMAS Sydney. By this stage he was drinking extremely heavily every day, in an attempt to get rid of the terrible thoughts of the collision, and had begun to smoke very heavily. Prior to the Sydney sailing for Vietnam, the plaintiff was sent to Cereberus for further training. He had lost all motivation to remain in the Navy and had a constant fear of being sent to sea. The plaintiff was having nightmares. He had lost all his energy and drive, could not concentrate and felt low, guilty and constantly thought of the collision with the Voyager. The plaintiff tried to keep away from things that would remind him of the collision but was unable to do so. Having failed in his attempt to be medically discharged for injury to his knee the plaintiff decided to tell his Captain that he was homosexual as a ruse to gain a discharge. He never told the psychiatrist about his nightmares and flashbacks because he was afraid that he would be retained in the Navy and put in an asylum. The plaintiff was put into hospital for a couple of weeks and then received a discharge on 29 June 1965. The reports of the psychiatrist, Dr Bartholomew are in existence.

(9) When he left the Navy, the plaintiff took up truck driving so that he could be on his own most of the time in wide open spaces. In 1968 he was married for the second time.

(10) In March 1972, the plaintiff was involved in a serious motor vehicle accident whilst returning home from work. He felt so down he wanted to "end it all and tried to do so by crashing [his] vehicle". As a result of the accident, the plaintiff had his right leg amputated below the knee and his left leg was amputated through the lower femur. The plaintiff continued to drink heavily. In October 1972 the plaintiff returned to work.

(11) In about 1994 the plaintiff's wife was concerned about his heavy drinking and she booked the plaintiff in to see a psychiatrist at Warranabol Base hospital. The records of Warranabol Base hospital have been produced. The plaintiff was prescribed medication but was not told what psychiatric condition he was suffering from or what was causing his symptoms. The plaintiff did not mention the symptoms such as nightmares or the Voyager collision to the psychiatrist. The plaintiff left the factory and took on a small mixed business. The plaintiff's wife left him taking their children so he sold the business. He then spent several years drifting around.

(12) In 1980 the plaintiff was placed on a Disability Support Pension. The plaintiff moved to Maryborough. The plaintiff's son lived with him for seven years and during this time the plaintiff remarried but this marriage lasted only 12 months. For seven years he resided in a caravan park.

(13) In October 1992 the plaintiff had a heart attack and was advised to give up smoking and drinking. Although he attempted to do so he was not successful.

(14) In August 1996, the plaintiff came into contact with James Taylor, solicitor. Mr Taylor made arrangements for the plaintiff to see a psychiatrist. On 26 November 1997, the plaintiff saw Dr Holwill, who examined him and informed him that he was suffering from a psychiatric condition, predominantly Post Traumatic Stress Disorder (PTSD), which had been caused by the collision. Dr Holwill also informed the plaintiff that he was suffering from depression, anxiety and alcoholism and that these conditions were also caused by his involvement in the collision.

(15) On 14 August 1997 the plaintiff filed a statement of claim and a notice of motion seeking to extend the limitation period. 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 14 August 1994. 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 14 August 1994); or to show that that fact was or those facts were still unknown to him on that date.

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 November 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 when he swore his affidavit on 19 October 2000. The defendant submitted that the plaintiff knew shortly after the collision that he suffered from the symptoms of PTSD. The defendant submitted that the plaintiff knew or ought to have become aware that he suffered a personal injury. In particular, the plaintiff had the opportunity to bring to the psychiatrist's attention his symptoms in 1965 while in the Navy and in 1974. (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 8 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). However s 60I(1)(b) refers to the concept that the plaintiff ought to have been aware of three matters listed in para (a)(i) to (iii). Harris is a case of a physical years after the plaintiff ought to have become aware of a disease of gradual onset and not one of psychiatric illness. 9 After the collision but prior to the expiration of the limitation period the plaintiff knew that he suffered from nightmares and flashbacks and that he had trouble in enclosed spaces. He felt incompetent and worthless. He knew that he felt low, that he had lost all his energy and drive, and that he had an overwhelming sense of guilt that he had survived. He felt worthless. He knew that he drank too much alcohol and smoked. He loathed and dreaded being on board the Melbourne and was fearful below deck. He had lost all motivation to remain in the Navy. However, he thought that these symptoms he experienced were a normal reaction to something so catastrophic and that in time these symptoms would resolve. At an early stage during cross examination, the plaintiff gave evidence that he knew that these feelings were directly related to what had happened in the collision (t 6). The plaintiff gave evidence he though that maybe the drinking was related to the collision (t 13). He then retreated from that position. Later still the plaintiff said that he did not relate feelings of depression and his excessive alcohol consumption to the collision until much later (t 16). 10 After failing to obtain a discharge from the Navy on the basis of his leg injury, the plaintiff saw a Navy psychiatrist, Dr Bartholomew and told him that he (the plaintiff) was a homosexual. The Navy out patient clinical notes record that the plaintiff stated that he had been involved in homosexual practices in Sydney for twelve months prior to joining Cerberus and that he also had sex with females to see if he was "still capable". His psychiatrist sent him to HMAS Cerberus hospital. At HMAS Cerberus it was recorded that "No homosexual behaviour was observed" but nevertheless he was discharged (Ex A). When the plaintiff was discharged in 1972 he was still having the odd nightmare and just could not pick himself up and he could not work out why. He did not link these feelings to the collision and though that it was part of the process of getting over the collision (t 11). 11 In about 1974 (after the expiration of the limitation period and after the plaintiff had a serious car accident in 1972 when he had his right leg amputated below the knee) the plaintiff's wife picked him up after work and drove him to a 5.00 pm appointment with a doctor at Warnambool hospital. She told the plaintiff that he was to see a medical practitioner because of his drinking and because she thought that he was depressed and aggressive. The plaintiff went along with her wishes to keep the peace. The plaintiff did not mention the collision because it never came to mind. The psychiatrist gave the plaintiff a few tablets for depression (t 13). These records are available. The plaintiff did not see another psychiatrist until 1996 when he consulted Dr Holwill.

12 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. Although the plaintiff may have been aware that he suffered from depression it is my view, it was in October 2000 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 in 1996. The plaintiff has passed through the s 60I(1)(a)(i) gateway. 13 In relation to s 61(I)(b) the plaintiff admitted that after the collision he could have asked to see a psychiatrist but he did not do so because he presumed it was a natural thing at the time and he would get over it (t 11). A reasonable person in the position of the plaintiff would not have acted any differently.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 14 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. However he was unaware that he had a diagnosable psychiatric illness until he became aware that he had a diagnosable psychiatric injury namely PTSD when he was first told of this by Dr Holwill in November 1997. 15 It is my view that the plaintiff did not know the nature or extent of his personal injury until November 1997 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 " 16 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 17 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. 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 In cross examination the plaintiff admitted that before he read the statement of claim, he was aware that there had been two Royal Commissions. He distanced himself from the Commission as he did not really want to think of them at that time. He presumed that the Commissions were about the accident but he was not interested in any outcome. He never made any inquiries as to the findings of the Royal Commissions (t 4). 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 19 October 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 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 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. 29 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. 30 The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. The defendant's solicitor, Mr Ktenas, in his affidavit deposes that the plaintiff's service records have been destroyed. They may have been destroyed but prior to their destruction the plaintiff obtained and produced to the court service records and a large bundle of Navy records relating to the plaintiff and there are detailed records of his medical condition from entry into the Navy to 1965 (Ex A). Documents have been produced by Dr Holiwell and Warnambool Base hospital. In terms of employment records, the plaintiff has been on a disability pension since 1980. The plaintiff's accountant during the time he owned the mixed business with his wife was Sinclair and Wilson at Warnambool. That firm is still in operation. The plaintiff is still in contact with his ex-wife and on friendly terms with her. From July 1965 until 1967 the plaintiff was employed as a driver with Patterson Furniture Pty Limited of Warnambool. The manager Mr Ron Paulin is still alive. 31 Between July 1967 until July 1968 the plaintiff was employed by Phil Lynch Stock Transport of Warnambool as a driver. Mr Phil Lynch is still alive. From July 1968 until July 1970 the plaintiff was employed by Canon Shelton Transport of Warnambool. This business was taken over by Scott's Transport of Mt Gambia. John Allan who was the manager at Warnambool is now in Mt Gambia and is still alive. From July 1970 until October 1970 the plaintiff was employed by Murray Goulburn Transport Division, Victoria as a driver. The manager was Mr Roger Malone and he is still alive. 32 From October 1972 until his retirement in 1977 the plaintiff worked for Fletcher Jones Warnambool. His supervisors Mr Jack Capel and Mr Thwaites are still alive. The defendant issued subpoenas to Australia Post and the Police Department. While no documents have been produced their relevance is not readily apparent. A reading of the plaintiff's affidavit does not reveal that the plaintiff was at anytime employed by Australia Post. 33 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not 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. Costs are reserved. 35 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 14 August 1997.

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