Fullarton v Commonwealth of Australia

56 I accept that it is the applicant's recall that he first became aware of the suggested link between the collision and his symptoms when he read Dr Troup's report. The report set out the association between the two in a comprehensive way. I think, however, that the probability is that the applicant became aware of Dr Troup's opinion (that he was suffering from a psychiatric illness arising out of the Melbourne/Voyager collision) prior to the date of her report, probably in July 1999 during the course of consultations with her. This is consistent with the statement that he made in the application for a pension and accords with the logic of events. Dr Troup's report drew on material presumably obtained by her in the course of consultations prior to the date of its preparation. She does not record the date of any consultation with the applicant. A worksheet annexed to the report is dated 20 August 1999 and evidences that she had obtained a history from the applicant on or before that day. 57 I am satisfied that the applicant was unaware of the connection between the Melbourne/Voyager collision and the symptoms which he reported and which Dr Troup diagnosed as constituting generalised anxiety disorder (and secondary dysthymic disorder) until around July 1999. The present application is one made within three years after the applicant became aware (or ought to have become aware) of all three matters listed in s 60(1)(a)(i) - (iii). 58 I now turn to a consideration of s 60G(2) and to the separate question of whether the applicant has succeeded in establishing that it is just and reasonable to extend the limitation period to permit him to bring his claim. 59 In Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 Sheller JA (in a judgment with which Meagher JA, Handley JA and Brownie A-JA concurred) observed that the effect of the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 is that an application for an extension of time under the limitation legislation should be refused if granting it would result in significant prejudice to the potential respondent. In the Commonwealth's submission this is such a case. 60 Causation would be a central issue at any trial. The Commonwealth submits that it is deprived of witnesses who can provide observations of the applicant dating back to the period before the collision (and in the years shortly thereafter). This would be relevant to a determination of the link between his abuse of alcohol and cigarettes, to take two examples, and any claimed psychiatric injury following the collision. The Commonwealth notes that after the passage of more than forty years it is unrealistic to expect that the applicant's shipmates might have any recall of his conduct. The service records, consistent with the applicant's case that in the period after the collision he commenced to abuse alcohol, might bear a different interpretation if the circumstances surrounding each incident were known. 61 The Commonwealth identified the inability to locate witnesses who might be able to comment on the applicant's father's drinking patterns to be a further item of prejudice. It is deprived of the ability to explore the link between alcohol abuse and genetic factors. 62 It was contended that witnesses who knew the applicant at the time he commenced smoking might be in a position to comment on his smoking habits: whether he presented as an ordinary social smoker. 63 On the Commonwealth's behalf, considerable reliance was placed on the judgment of McHugh J in Brisbane South Regional Health Authority. His Honour, dealing with the extension provisions under the Limitation of Actions Act 1974 (Qld), emphasised that an applicant who satisfies the preconditions does not acquire a presumptive right to an order extending time. The applicant who satisfies the conditions is entitled to ask the court to exercise a discretion in his or her favour, but it remains for the applicant to demonstrate that it is just and reasonable to do so. My attention was directed to his Honour's observations at 551 concerning the rationales for the existence of limitation periods that: "Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. … Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued." 64 I do not consider the absence of witnesses able to comment on the applicant's drinking, cigarette smoking and general character prior to and after the collision while he remained a member of the RAN to give rise to significant prejudice to the Commonwealth in defending the claim. The applicant joined the Navy as a sixteen-year old youth. He was still below the legal age for drinking at the time of the collision. That his consumption of alcohol should, by and large, post-date the collision is unlikely to be a matter of moment. The applicant agreed in evidence that he had smoked while in the Navy, offering as one reason for doing so that cigarettes were available to seamen duty free. I consider it somewhat fanciful to think that the Commonwealth might defend that part of his claim by which he asserts his cigarette smoking to be causally linked to psychiatric injury by leading evidence that as a youth he appeared to be a social, as distinct from an anxious, smoker. 65 In evidence, the applicant acknowledged that the account he gave to Mr Wilks of his drinking in the period after the collision was accurate: "drinking ashore with other sailors c. twice per week, two or three pots of beer at a time" (Robert Wilks' report, 19 September 2001). The applicant's case is of increased drinking as time went by. I do not consider the inability to call evidence relating to the circumstances in which the applicant came to notice for disciplinary offences committed while drunk to constitute any real prejudice to the Commonwealth. Should his claim proceed, the applicant will no doubt invite the Court to draw an inference from the frequency with which he came to official notice in connection with drinking that he was exhibiting symptoms of alcohol abuse consistent with the psychiatric injury that he claims. This would be an available inference whether an examination of the circumstances of each incident revealed it to be an instance of lone, morose drinking or of high spirited social drinking with young shipmates. 66 The history given to Mr Wilkes relating to the applicant's father's drinking pattern may be significant to a case that any excessive alcohol consumption is likely to be explained by genetic factors. The fact that the father had a problem with alcohol is acknowledged and may be commented upon. The inability to lead evidence as to the nature and extent of Mr Fullarton senior's drinking pattern does not impress me as amounting to prejudice to the Commonwealth in defending the son's claim. 67 The applicant's service records include the results of medical examinations undertaken when he was an applicant for a diving course and for becoming a sub-mariner. As the Commonwealth submits, after this interval of time there is no prospect that the various naval surgeons who examined the applicant would have any recall of him. On his application to become a sub-mariner the applicant was assessed as being emotionally stable. The doctor ticked a box to signify so much. The Commonwealth submits a bare record of this sort might be thought to have little weight, whereas closer to the time the doctor may have been in a position to give a detailed account of why he had come to this opinion. The examination was a general medical one and it is not suggested that the practitioner was qualified to or did carry out any psychiatric assessment. It is not suggested that the plaintiff was exhibiting frank symptoms of any psychiatric condition at the time. 68 The Commonwealth's solicitors have, with the assistance of a firm of private investigators, endeavoured to locate persons who served with the applicant when he was a member of the RAN. A number of names were furnished by the applicant of people who could give an account of him at this time. Only two of the persons contacted appear to have any recall of the applicant. Mr Summerton, the Petty Officer, whom the applicant recalls as informing him of the disaster, was contacted. He is reported to have responded, "My memory is bad. I can recall details of my childhood but not later parts of my life." For the reasons earlier given I am not persuaded that the absence of witnesses who remember the applicant, either on board the HMAS Melbourne on the night of the collision, or more generally during his period in the RAN, constitute significant prejudice to the Commonwealth. The applicant was a youth at the date of the collision. The recollections of his superiors or shipmates as to his character and habits in the relatively short period of his service are not likely to be significant to the determination of the issues raised by his claim.

69 In the Commonwealth's submission, given that the fact of injury is in issue, the inability to closely examine the applicant's claim to have been morbidly anxious about workplace safety is a matter of significant prejudice. 70 In its case, the Commonwealth read a number of affidavits sworn by John Emmerig, the partner of Blake Dawson Waldron who has the conduct of these proceedings on its behalf. In his affidavit sworn on 28 April 2005, Mr Emmerig sets out the results of inquiries undertaken on his instructions with a view to preparing the matter should it proceed to trial. They include the fact that a number of the doctors whom the applicant reports having consulted over the years have no recall of him and do not hold records relevant to him. It is to be noted that the applicant acknowledges consulting medical practitioners from time to time but does not claim to have sought assistance for the symptoms of anxiety and depression until recent times. 71 Mr Emmerig retained an investigator to make inquiries of the various firms for whom the applicant reported having worked. The results of these inquiries are set out in paragraphs 10(a) to (o) of Mr Emmerig's affidavit of 28 April 2005. While a number of persons who were contacted had little or no recall of the applicant, and while a number of persons were not able to be located, it is to be observed that various persons were spoken to who had worked with the applicant and who were able to comment on his conduct at work. The results of some earlier investigations conducted on Mr Emmerig's instructions are set out in paragraph 13(a) to (c) of his affidavit sworn on 28 April 2005. The Commonwealth has been able to locate some persons with knowledge of the applicant's employment both at Beenleigh Rum and at Davis Gelatine.

72 Annexed to Mr Emmerig's affidavit of 28 April 2005 is a report of Associate Professor Champion upon which considerable reliance was placed by the Commonwealth. Professor Champion commented on the report of Dr Troup, observing of her diagnosis that it appeared to be a thorough and reasonable assessment. In Professor Champion's view the criteria for the disorders were well met. He noted that there had not been much discussion about causal influences, though some reference to a link between the Voyager collision and excessive consciousness of safety was inferred. Professor Champion observes that there was nothing highly specific about the applicant's psychological disorders such that would establish a strong causal link with the collision. To document a causal link between the experience of the collision and the development and progression of psychological symptoms would have required prospective medical/psychological documentation. Professor Champion observes that heavy drinking is commonplace in the Services and that the applicant was potentially predisposed to this behaviour if it be accepted that his father had an alcohol problem. He went on to observe: "He probably was somewhat vulnerable to alcohol and its consequences. This retrospective, rather late, history pointing to an influence of the Melbourne/Voyager collision on anxiety, excessive concerns about safety, and turning to alcohol to relieve such anxieties, is clearly weaker than the causal connection that theoretically might have been established if there were a prospective medical record. From the information that has been provided and which I had the opportunity to review, it would be difficult to argue for more than a weak or partial causal influence of the collision" (Report G. David Champion, 31 March 2005, JMCE 5 to affidavit sworn 28 April 2005, at p 6). 73 Professor Champion noted that the evidence of drinking and of involvement in fights when the applicant was aged seventeen or eighteen is not diagnostic of a post-traumatic stress disorder and may be accounted for by family history, cultural influences, youthful risk-taking behaviour and perhaps by relief of anxiety. In commenting on the question of the extent to which the applicant's psychological problems may be related to other life experiences, Professor Champion notes that opinions would vary on the proportion of his anxiety disorder, alcohol abuse and so on that would be attributable to the collision (at p 8 [6]). Important to the way the matter was argued is Professor Champion's opinion that: "The "effluxion of time" since February 1964 undoubtedly increases the difficulty or impediment in relation to determining any of the above discussed matters (1-7). Psychological disorders are inherently complex, multi-causal, and the longer one lives and experiences stresses and potential causal influences, the more difficult it becomes to identify unequivocal and important causal influences. One has to rely on the individual's history and report, consider the individual's interpretations and beliefs, and these are not necessarily reliable, particularly in a litigation context" (at p 8 [8]). 74 The thrust, as I understood the Commonwealth's submissions, was that the very lengthy delay in this case produced the result that the question of the cause or causes of the applicant's generalised anxiety state will fall to be determined largely on a history that in material respects cannot be investigated. 75 It seems to me that a number of the matters addressed in Professor Champion's report do not support the Commonwealth's submission of actual prejudice. As Professor Champion observes, the absence of prospective medical documentation makes the applicant's case a harder one on causation to make good. The significance of the family history of the father's alcohol abuse is known and able to be commented upon by expert witnesses qualified on the Commonwealth's behalf. 76 An important consideration is the applicant's claim to have been preoccupied with safety issues in the workforce. Professor Champion acknowledges this could be a significant link with the collision, even though it is not necessarily a specific causal effect (at p 8, [6]). If any trial is to be a fair one the Commonwealth should have the opportunity to test the assertion that the applicant has exhibited excessive concern about safety issues. The evidence is that the Commonwealth has not been able to locate all of the persons who might have relevant evidence to give on this topic, and among former work associates who have been contacted, some no longer have any recall of the applicant. As I have noted, the Commonwealth has been able to locate and speak to a number of persons with knowledge of the applicant in his civilian work life. 77 In McLean v Sydney Water Corporation [2001] NSWCA 122 Giles JA (in a judgment with which the other members of the Court concurred) observed at [27]: "I do not exclude as a consideration properly to be taken into account as part of, or together with considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in a particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial." 78 I am satisfied that a fair trial can still be had on the applicant's claim. It is not in issue that the collision was caused by negligence for which the Commonwealth is liable. The applicant has established that there is a serious question to be tried as to whether he suffered the psychiatric injuries of which he complains and whether they were caused by the Commonwealth's admitted negligence. I am persuaded that the applicant has established that it is just and reasonable that the limitation period be extended to enable him to bring his claim. 79 Written submissions were handed up at the conclusion of the hearing on behalf of the Commonwealth with respect to the question of costs. It is the Commonwealth's submission that the appropriate order is that provided by Pt 52A r 17 of the Supreme Court Rules 1970. I have not heard from the applicant on the question of costs. I will afford him an opportunity of being heard before making any order with respect to costs.

ORDER 80 Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed, being 22 October 2001.

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