Fisher v Commonwealth of Australia

COUNSEL : Plaintiff - M Joseph SC; W Walsh Defendant - P Jones SOLICITORS : Plaintiff - James Taylor & Co Defendant - Australian Government Solicitor CATCHWORDS : Extension of time to commence proceedings - ss60G & 60I Limitation Act - Voyager/Melbourne Collision LEGISLATION CITED : Limitation Act 1969 (NSW) Limitation of Actions Act 1974 (Qld) Commonwealth of Australian 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 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported, 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 CASES CITED : 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) 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 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 17 June 1996; (2) Costs are reserved.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20616/96 - HAROLD THOMAS FISHER V 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 17 June 1996 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 affidavits sworn 2 September 2000. The defendant relied on affidavits of Con Ktenas affirmed 19 May 2000 and 6 June 2001. 2 I observed the plaintiff carefully when he gave evidence and was 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 4 November 1929 and is 71 years of age. He presently resides in Frankston, Victoria. (2) On 12 April 1948, the plaintiff enlisted with the Royal Australian Navy at the age of 18 years. At the time of enlistment the plaintiff was in good health both physically and psychologically. (3) Prior to 10 February 1964, the plaintiff was a member of the crew of the destroyer HMAS Voyager. Some of the crew on the HMAS Voyager were his friends. (4) Shortly prior to 10 February 1964, the plaintiff was transferred from the Voyager to the HMAS Melbourne, which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of Acting Chief Shipwright. (5) 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. (6) The plaintiff was off duty at the time of the collision and was sitting in the Chief Petty Officers Mess. He felt a violent bank and felt the bow suddenly lift and drop, lifting him out of his seat. The plaintiff heard someone say that he thought a plane had crashed on the deck. The plaintiff made his way to the port gun sponson near the bow of the ship. While he was on his way he heard the pipe "hands to collision stations". The plaintiff was in fear for his life. As the plaintiff reached the sponson, part of a ship scraped past. The noise was deafening. He could hear men screaming and he heard somebody say that they had hit a ship. (7) The plaintiff was in charge of damage control in the forward section. He realised that the Melbourne had hit the Voyager and he feared for the lives of his former Voyager shipmates. (8) The plaintiff went down to three deck and saw a lot of steam and smoke coming out of the hatch of the forward toilets. He was told that one of his boys was in there. He went into the hold as quickly as possible to help him and screamed out his name. The plaintiff was afraid for both his and his boy's lives. The plaintiff cannot remember the boy's name as they worked on a three month roster. (9) The plaintiff organised teams to perform damage control. Together with the teams, he surveyed the damage and began cutting and shoring up the bulkheads. The plaintiff worked all night and the next day with only short respite. The collision occurred on the Monday evening and the plaintiff worked until Wednesday night. He felt in constant fear for his mates on the Voyager and was fearful for his safety when he realised the extent of the damage the Melbourne had sustained. (10) On the Tuesday night after the collision, the plaintiff was informed that there were Shipwrights from the Voyager in the sick bay and he learned that both of his mates had been saved. (11) On Wednesday night he had a nightmare where he saw part of the ship going past with people screaming out for help and that he was going into the toilets which were crushed. There was steam, smoke and smell. (12) Soon after the plaintiff returned to Sydney he started to have nightmares. He would see the accident scene in the bow of the ship and wake up screaming. This happened nearly every time he shut his eyes. The plaintiff went on leave for two weeks but his nightmares continued. The plaintiff's nightmares continue to this day. The plaintiff dreams that the Melbourne is going down and he throws himself over the side. On one occasion the plaintiff awoke on the floor. (13) After the collision the plaintiff's attitude changed. He knew that something was wrong but he did not know what it was. He did not dwell on it and just got on with his job. He was nervous, edgy and easily upset. His marriage deteriorated. Although they continued to live in the same house, his relationship with his wife had broken down completely. The plaintiff gave evidence that they are legally separated. The plaintiff is still extremely nervous and has a guilt complex. Small incidents upset him and reduce him to tears. He feels suspicious and is vigilant and watchful. He feels his life his worthless and feels helpless and lacks confidence. (14) The plaintiff left the Navy in ??? (15) The plaintiff enrolled in Technical Teachers College and completed a Trained Secondary Teachers Certificate in 1971. He commenced teaching at Monterey Technical School and taught until 1986 when he suffered from ill health and heart problems. The plaintiff gave evidence that anything that happened when he was in the Navy, including the collision, did not affect his working career. (16) On 29 November 1995 the plaintiff filed a statement of claim and on 6 December 1995 he filed a notice of motion seeking to extend the limitation period. (17) In December 1995 the plaintiff saw Dr Wu, psychiatrist. Dr Wu, in his report of 23 December 1995, held the view that the plaintiff has a complex cluster of symptoms indicating a significant contribution including PTSD features, which have persisted from onset following the collision. He was of the opinion that the plaintiff's subsequent injuries and medical conditions developing independently had also caused him to have significant psychological consequences. Dr Wu did not feel that the plaintiff's clinical psychological problems could not entirely be attributed to the collision and that it was difficult to quantify the extent of suffering due to PTSD from the collision. However, Dr Wu noted that the plaintiff had experience pain and suffering from the collision, that his loss of intimacy with his wife was derived from the nightmares and other complications which could be attributed to his PTSD from the collision and that his fear and uncertainty could be said to have begun as a result of the collision. (18) In 1995, the plaintiff applied for a pension from Veterans Affairs for stress. This claim was refused. The plaintiff appealed. The appeal was dismissed. (19) In June 2001, a vascular surgeon referred the plaintiff to a psychiatrist. As a result of this consultation the plaintiff is taking medication for depression.

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 17 June 1993. 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 17 June 1993); 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 1995. 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 September 2000. 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. He knew that they were related to the collision as they were a graphic replay of what occurred. The plaintiff knew something was wrong but the plaintiff didn't dwell on it and just got on with the job. He knew he was nervous, edgy and easily upset. The plaintiff felt worthless and lacking in confidence. 10 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. Prior to consulting Dr Wu, the plaintiff had never been referred to a psychiatrist. He acknowledged that he suffered some depression as a result of the back and chest operations. It was in December 1995 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that although not all of the plaintiff's psychological symptoms could be attributed to the collision. 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 1995. The plaintiff has passed through the s 60I(1)(a)(i) gateway. 11 However, any knowledge the plaintiff acquired when completing this claim was acquired within the time period stipulated by s 60I(1)(b).

(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 was unaware that he had a diagnosable psychiatric illness until 1995 when he was told by Dr Wu that he had a diagnosable psychiatric injury, namely PTSD. 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 September 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. 17 The defendant submitted that because the plaintiff admitted that shortly after the collision he knew that one or both ships had steered off course, as the Voyager was meant to be behind the Melbourne, he was aware of the connection between the personal injury and the defendant's acts or omissions. The plaintiff said that he did read some of the papers at the time of the inquiries but he did not know why or how the collision occurred. He identified some particulars of negligence that he was unaware of. 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's 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 September 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 made 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 of Dr Wu 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 on 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. However the plaintiff has produced a bundle of Navy medical records covering his entire period of naval service. The records suggest that the plaintiff did not complain of a psychological or psychiatric problem during this time. After leaving the Navy he worked at Frankston Technical School while he trained as a woodwork teacher. After he completed his training, he was employed by Monterey Secondary School. Since about 1967, this has been his only employer. The plaintiff ceased teaching in 1986 and was retired in 1990. The plaintiff's tax returns since 1985 have been produced. He is not claiming that anything he experienced in the Navy affected his working life. 31 There are medical records from Cairns Base Hospital, Frankston Radiology and the Victorian Department of Education which have been produced on subpoena. Workcare documents from 1989 to 1992 have been produced by the Victorian Department of Education and are available (Ex C). They include medical certificates which relate to his back problems and pay advices. 32 Records were not produced by Dr Fairweather, Mr Creaser and Monterey Secondary College. In 1972, the plaintiff consulted Dr Fairweather, who was a general practitioner who worked in the same practice as Dr Bennett. The plaintiff consulted these general practitioners for six years or so. Dr Bennett has not been subpoenaed. I accept that these records may not be available. There are plenty of records produced by his employer. Mr Creaser has died. He was a physiotherapist who treated the plaintiff. These records are not of overall importance. 33 Dr Wu has died. His records are available. Whether his records will be admissible at the trial is a matter for the trial judge. However if the records are admitted into evidence, I accept that the defendant will not be able to cross examined the doctor. The plaintiff has been examined by a psychiatrist, Dr Phillips, for the defendant. This report has not been served. 34 This is a borderline case. After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. It will not be perfect but 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 17 June 1996.

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