Galea v Commonwealth of Australia

Supreme Court of NSW|2007-03-19|Before: Johnson J

CITATION : Galea v Commonwealth of Australia [2008] NSWSC 44

HEARING DATE(S) : 19 March 2007, 20 March 2007, 11 May 2007, 15 May 2007, 25 May 2007

DECISION : Pursuant to the Limitation Act 1969, the limitation period for the cause of action in this proceeding is extended to 14 August 1997.

LEGISLATION CITED : Limitation Act 1969 Evidence Act 1995

Commonwealth of Australia v Shaw (2006) 66 NSWLR 325 Pearce v Commonwealth of Australia [2006] NSWCA 210; (2006) Aust Torts Reports 81-856 Commonwealth of Australia v Smith [2005] NSWCA 478 R v GK (2001) 53 NSWLR 317 Blunden v Commonwealth of Australia [1999] ACTSC 128 Commonwealth v Stankowski; Commonwealth v May [2002] NSWCA 348 CASES CITED : Commonwealth of Australia v Lewis [2007] NSWCA 127 Commonwealth of Australia v Smith [2007] NSWCA 169 Harris v Commercial Minerals Limited (1996) 186 CLR 1 CRA Limited v Martignago (1996) 39 NSWLR 13 Baragwanath v Commonwealth of Australia [2005] NSWSC 575 Dedousis v Water Board (1994) 191 CLR 171 Commonwealth of Australia v Diston [2003] NSWCA 51

PARTIES : Joseph George Galea (Plaintiff) Commonwealth of Australia (Defendant)

COUNSEL : Mr G Melick SC; Ms K Sant (Plaintiff) Mr C Barry QC; Mr I McLachlan (Defendant)

SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20778/97 Joseph George Galea v Commonwealth of Australia

JUDGMENT 1 JOHNSON J: The Plaintiff, Joseph George Galea, then aged 22 years, was a naval airman on the aircraft carrier HMAS Melbourne on 10 February 1964, when that vessel collided with her escort destroyer, HMAS Voyager, with the loss of 84 lives of HMAS Voyager crew members. 2 On 14 August 1997, the Plaintiff filed a Statement of Claim against the Defendant, the Commonwealth of Australia, together with a Notice of Motion seeking an extension of the applicable limitation period to commence proceedings for damages. The Plaintiff claims damages in negligence with respect to psychiatric injuries said to have been caused by his involvement in the collision and the ensuing rescue of HMAS Voyager crew members. Medical evidence adduced for the Plaintiff on the application asserts that his injuries include post-traumatic stress disorder ("PTSD") and alcohol abuse. 3 On 31 January 2008, I made an order pursuant to the Limitation Act 1969 extending the limitation period for the Plaintiff's cause of action until 14 August 1997. These are my reasons for making that order.

Relevant Statutory Provisions 4 Section 60G Limitation Act 1969 provides as follows: " Ordinary action (including surviving action)

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 5 Section 60I Limitation Act 1969 is in the following terms: " Matters to be considered by court

(1) A court may not make an order under section 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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision." 6 If the Plaintiff is able to satisfy the requirements of s.60I, the Court may order an extension for such period as it determines under s.60G of the Act. In substance, there is a two-part inquiry whereby the Court must first determine whether the Plaintiff passes through the gateway provisions of s.60I and, if so, whether it is just and reasonable to extend the limitation period.

Evidence on the Application 7 The hearing of the Plaintiff's application had been listed for 19 and 20 March 2007. In circumstances to be outlined shortly, further evidence was heard on 25 May 2007. Both the Plaintiff and the Defendant read a number of affidavits and tendered documents on the application. A number of witnesses were cross-examined at the hearing. Witnesses for the Plaintiff who were cross-examined are:

(a) The Plaintiff (T11-69, 83-109,19-20 March 2007);

(b) Barbara Burr (T110-115, 20 March 2007); (c) James Taylor, the Plaintiff's solicitor (T116-140, 20 March 2007); (d) Professor Alexander Cowell McFarlane, psychiatrist (T1-17, 25 May 2007). 8 Witnesses for the Defendant who were cross-examined are:

(a) Alan Melrose, a solicitor with the Australian Government Solicitor (T142-159, 20 March 2007);

(b) Cameron Hutchins, a solicitor with the Australian Government Solicitor (T160-165, 20 March 2007). 9 The Defendant objected to the tender of reports of Professor McFarlane dated 5 March 2007 and 12 March 2007. Short oral submissions were made by counsel at the end of the hearing on 20 March 2007 (T165-167) concerning this issue. More detailed submissions on the admissibility of the reports were made in comprehensive written submissions made by the parties after the March 2007 hearing which touched upon all issues. 10 The Defendant's written submissions did not state that, in the event that Professor McFarlane's reports were admitted into evidence, it was desired to cross-examine him upon his reports. However, in the course of oral submissions on 11 May 2007, Mr Barry QC, for the Defendant, indicated that Professor McFarlane was required for cross-examination if his reports were admitted into evidence (T182). 11 I indicated then that I proposed to admit the reports of Professor McFarlane into evidence (T184). I accepted the Defendant's submissions that the Defendant should have an opportunity to cross-examine Professor McFarlane on issues relevant to the extension of time application (but not generally), subject to any question of costs arising from the protracted and fractured nature of the hearing which had resulted. 12 On 25 May 2007, Professor McFarlane was cross-examined shortly by audio-visual link from Adelaide and thereafter counsel made supplementary oral submissions on the application.

The Admissibility of Professor McFarlane's Reports 13 It is appropriate that I give reasons for my decision to admit the reports of Professor McFarlane into evidence over objection from the Defendant.

The Plaintiff's submissions 14 Mr Melick SC, for the Plaintiff, submitted that the reports of Professor McFarlane were relevant to facts in issue in the extension application. It was submitted that the report of 5 March 2007 was relevant to the question whether the Plaintiff has a viable claim. It was submitted that both reports are relevant to the gateway provisions in s.60I of the Act. Mr Melick SC submitted that the impact of the Plaintiff's illness explains why he did not understand that he had a psychiatric illness, and therefore did not have actual knowledge. It is supportive of the Plaintiff's evidence in that regard and is, therefore, probative. 15 Mr Melick SC submits that part of the 5 March 2007 report and the entire report of 12 March 2007 are relevant to the normative limb in s.60I(1)(b) as explained in the decisions of the Court of Appeal in Commonwealth of Australia v Shaw (2006) 66 NSWLR 325 and Pearce v Commonwealth of Australia [2006] NSWCA 210; (2006) Aust Torts Reports 81-856. In particular, Mr Melick SC points to the statement of Basten JA in Commonwealth of Australia v Shaw at 341 [62] that, where the injury itself may be a significant cause of the failure to take steps to obtain medical opinion or investigate a claim, the normative limb of s.60I has no application to exclude a plaintiff from being granted an extension.

The Defendant's submissions 16 Mr Barry QC submits that the reports of Professor McFarlane are not relevant to any fact in issue on the present application. He submits that the evidence in this case demonstrates the falsity of Professor McFarlane's assertion that persons suffering from PTSD cannot discuss the matter with other people. He submits that this issue is not a matter for expert evidence in any event. 17 With respect to the normative limb in s.60I(1)(b) of the Act, Mr Barry QC submits that the reports are not relevant to this application where the applicable test is whether, on the information in the Plaintiff's possession, he ought to have become aware of all three matters listed in s.60I(1)(a) of the Act. Mr Barry QC submits that this is not a matter for expert evidence, but a matter for evaluative judgment by the Court. He submits that it is for the Court to determine whether the Plaintiff ought to have become aware of the existence of personal injury, and that this is not a matter for expert opinion. In this respect, Mr Barry QC relies upon the observations of Handley JA in Commonwealth of Australia v Smith [2005] NSWCA 478 ("2005 Smith appeal") at [15]-[20]. 18 The Defendant submits that each case must turn on its own particular facts, and that general observations about what people with PTSD will or will not do, does not enable a tribunal of fact to determine, applying the correct "normative" and "evaluative" tests, whether an applicant in any particular case ought to have known that he had suffered personal injury.

Resolution of Competing Submissions 19 The applicable test of relevance for the purpose of admissibility of evidence is that contained in ss.55 and 56 Evidence Act 1995. Evidence is relevant in a proceeding where, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings: s.55(1). For present purposes, the proceeding is the Plaintiff's application for an extension of time under the Limitation Act 1969. 20 It is necessary for the Plaintiff to make out the normative element in s.60I(1)(b) so that the Court will be satisfied that the application to extend time was brought within three years of the date when the Plaintiff ought to have become aware of the relevant matters specified in s.60I(1)(a) of the Act. This inquiry extends beyond the date of the Plaintiff's actual awareness. A separate and distinct test is involved, not limited to actual awareness, but taking into account other matters thought appropriate in the circumstances, including the particular circumstances affecting the Plaintiff: Commonwealth of Australia v Shaw at 333-334 [30]-[31]. In Commonwealth of Australia v Shaw, Basten JA (Handley and Ipp JJA agreeing) said at 341 [62]: "A second possible reason for not taking earlier steps to apprise himself of his medical needs and possible legal entitlements may be found in the psychiatric illness about which he complains. Thus, failure to talk about the traumatic event may be either a symptom or a result of post-traumatic stress disorder. The policy underlying par (b) would not be furthered by the exclusion of plaintiffs on the ground that they have not taken relevant steps in their own self-interest, where the injury itself may be a significant cause of the failure to take such steps." 21 It is this passage upon which Mr Melick SC places particular reliance in support of the admissibility of Professor McFarlane's reports in this case. I accept the Plaintiff's submission that the reports of Professor McFarlane are relevant, in accordance with s.55 Evidence Act 1995, to the determination of the fact in issue in these proceedings concerning s.60I(1)(b) of the Act. 22 Opinion evidence is not inadmissible only because it is about a fact in issue or an ultimate issue: s.80(a) Evidence Act 1995; R v GK (2001) 53 NSWLR 317 at 326-327 [40]. 23 It is, of course, for the Court for determine whether the Plaintiff has satisfied the normative element for the purpose of this application. I do not accept the Defendant's submission concerning the admissibility of Professor McFarlane's reports. The reports of Professor McFarlane are admissible because they are relevant to the facts in issue in this application. They form part of the evidence which the Court must take into account for the purpose of determining whether the Plaintiff has satisfied the requirements in s. 60I of the Act. It was for these reasons that I admitted the reports into evidence.

The Plaintiff's Account 24 The Plaintiff was born in 1941. He enlisted in the RAN in 1958. He was discharged from the RAN in 1967 having completed nine years' service. The Plaintiff's rank on discharge was that of Leading Airman. 25 It was the Plaintiff's evidence that he was in good health, both physically and psychologically, when he entered service with the RAN at the age of 17 years. 26 The Plaintiff was almost 23 years old on 10 February 1964. He gave an account of the collision and its aftermath in evidence. The Plaintiff was sitting in his mess deck playing cards when he felt a jolt. He rushed out to see a section of HMAS Voyager passing the starboard side of HMAS Melbourne. He could hear cries for help and could see people scurrying around on the decks of HMAS Voyager. Soon after, the Plaintiff and others launched a whaler to assist in rescuing personnel from HMAS Voyager. Difficulties were experienced in this rescue process and it was necessary for the Plaintiff and others to leap from the whaler to a launch. Eventually, the Plaintiff and others returned to HMAS Melbourne. The Plaintiff was completely drenched and had oil over him and was apparently thought by some crew members of HMAS Melbourne as being a survivor from HMAS Voyager. The Plaintiff returned to the flight deck and assisted in chocking the wheels of several helicopters which had landed. 27 The Plaintiff made a detailed statement dated 5 March 1964 for the purpose of the Voyager Royal Commission and was called as a witness at the Royal Commission on 27 May 1964. Accordingly, there is a near contemporaneous account by the Plaintiff of his observations and involvement in events immediately after the collision, including rescue attempts.

28 The Plaintiff was posted to HMAS Albatross from about June to December 1964 and then returned to HMAS Melbourne where he continued to serve until about October 1965. He said that he did not want to return to HMAS Melbourne and its terrible memories. 29 When the Plaintiff's time for re-enlistment came up in 1967, he stated that he decided to leave the RAN. He stated that this was "at complete odds to what I felt prior to the collision". He had intended to make the RAN his full-time career, but felt no longer able to cope with service. 30 Following his discharge from the RAN, the Plaintiff joined the Department of Civil Aviation as part of the fire crew located at Canberra airport. He remained there for 12 months. He said that he gave this job away as he had no confidence in himself in participating in rescues. He was paid award wages whilst employed by the Department of Civil Aviation. 31 Thereafter, the Plaintiff gained employment as an electronic equipment operator with the space tracking station at Orroral Valley near Canberra. He was employed there for about 16 years and was paid award wages in that period. 32 It was the Plaintiff's evidence that, throughout this period, he was having problems sleeping and his drinking was substantial. 33 The Plaintiff married in 1966. He has three daughters aged 35, 32 and 27 years. He said that his sleeping and drinking problems caused his marriage to deteriorate and the marriage ended in 1984. 34 The Plaintiff remained employed at the satellite tracking station at Orroral Valley until it closed in the mid-1980s. He then moved to Western Australia for about 10 months and, in due course, worked on a sheep station on the Nullarbor Plains for about four months. In about late 1986, the Plaintiff commenced his own business as a concreting contractor and drove his own concrete truck. 35 The Plaintiff's income tax returns for each financial year from 1985 to 2001 are available together with Notices of Assessment for each financial year in this period with the exception of the 1986, 1987 and 2001 financial years. A group certificate is available for the 1986 financial year. 36 Whilst conducting his concreting business, the Plaintiff said that he continued to have problems sleeping. 37 The Plaintiff has been in receipt of a Department of Veteran's Affairs service and disability pension since 2001. He is not required to complete an annual income tax return and, accordingly, has not lodged a return since 2001. The Plaintiff lives in a Vietnam veteran's group house in Queensland.

Conversation Between the Plaintiff and Ms Barbara Burr 38 An important issue on the present application is the timing of a conversation between the Plaintiff and a friend, Ms Barbara Burr, concerning the Plaintiff's health problems. As mentioned earlier, the Plaintiff filed a Statement of Claim and a Notice of Motion seeking an extension of time on 14 August 1997. Having regard to the provisions in s.60I(1)(b), a significant issue is whether the Plaintiff's application was made within three years after he became aware of all three matters listed in s.60I(1)(a)(i)-(iii). 39 The Plaintiff said that, towards the end of 1995, he had a conversation with Ms Burr and explained to her his sleeping problems. In the course of the conversation, the Plaintiff told Ms Burr that the problem had started since the collision between HMAS Voyager and HMAS Melbourne and he had just tried to cope with it. Ms Burr suggested that the Plaintiff should go and see a doctor about it. The Plaintiff said that he took her advice and saw Dr Michael Brown, a Canberra general practitioner, who referred the Plaintiff to Dr Brian White, psychiatrist, whom the Plaintiff saw for the first time on 22 March 1996. The Plaintiff said that, after giving Dr White his history, Dr White advised the Plaintiff that he was suffering from PTSD as a consequence of being involved in the collision and some explanation of the nature of that condition was given to the Plaintiff. According to the Plaintiff, this helped him to understand his past behaviour and this "was the first time I knew that I was suffering from a psychiatric disorder". 40 After seeing Dr White, the Plaintiff contacted James Taylor, solicitor. The Plaintiff said that, until he had read the Statement of Claim prepared in his matter, he had no knowledge of negligent acts or omissions by the Defendant and did not know that those negligent acts or omissions had caused him psychiatric damage. 41 The Plaintiff was cross-examined closely with respect to the timing of his conversation with Ms Burr. His evidence fluctuated somewhat, reflecting a level of uncertainty on his part as to the date of the conversation. He conceded that it was possible that the conversation had taken place in or before 1994. 42 Ms Burr was called to give evidence on this application. In an affidavit affirmed 20 March 2007, Ms Burr said that she is now retired but had worked formerly as a psychiatric nurse at Calvary Hospital in Canberra. She said that, in late 1995, she had a conversation with the Plaintiff whom she knew through his de facto partner, Claire Batchelor. Ms Burr said that she did not know the Plaintiff well but that they were on friendly terms. She would see him regularly at the hotel when she was there having a drink after work. Prior to the conversation, Ms Burr knew that the Plaintiff had been on HMAS Melbourne when it collided with HMAS Voyager because Ms Burr's husband was also a former member of the crew of HMAS Melbourne. 43 In her affidavit, Ms Burr gave the following account of the conversation with the Plaintiff in late 1995: "5. I recall having a conversation with Mr Galea very clearly but do not now remember all the exact words.

Mr Galea came up to me and said, 'Can I talk to you?' He asked me whether I could help him saying words to the effect, 'can you help me? I have been having dreams for a long time and waking up in the night and it's getting worse.'

He did not tell me all the detail but I do recall that he said something like 'I wake up in the middle of the night and have the sweats'. He described the dream briefly at my request, 'in the dream I am dragging people out of the water and there are men all covered with oil'. He did not tell me any more, except to say 'when I wake up I feel empty inside and often I'm shaking.'

I told Mr Galea, 'I work with a doctor called Brian White who is good with people in the forces. If I ring Brian for you, would you make an appointment to see him?' he said, 'yes'.

Mr Galea did not tell me a lot of detail about his problems or the content of his dreams. From what he said he wanted help but from my observation, he did not want to tell me any more than necessary to get that help. He was not eager to talk.

He appeared flat and a bit sad when he did mention the dreams about pulling people out of the water." 44 Ms Burr said that she rang Dr White about the Plaintiff within a week of the conversation and then spoke to the Plaintiff indicating that he should contact Dr White to make an appointment. The Plaintiff told Ms Burr that he had seen Dr White. Ms Burr stated in her affidavit (paragraph 15): "The reason I know it was late 1995 was that my husband died in December 1996 and the conversation happened within about 12 months before he died." 45 Under cross-examination by Mr Barry QC, Ms Burr maintained that the conversation with the Plaintiff about the collision had occurred in late 1995 and she rejected the suggestion that the conversation had been 1994 (T114). She thought that it was August 1995 (T115.6) and again rejected the suggestion that the conversation could have been a year earlier (T115.11). 46 The Plaintiff submitted that the Court should be satisfied that the conversation between Ms Burr and the Plaintiff occurred in 1995, and probably late 1995. Although the Plaintiff had conceded the possibility that the conversation had occurred in 1994 (which Mr Melick SC submitted assisted any finding concerning the Plaintiff's credit), it was submitted that the evidence of Ms Burr constituted a sound and reliable basis for concluding that the conversation occurred in 1995. 47 Mr Barry QC submitted that the Court should not be satisfied, on the balance of probabilities, that the conversation occurred in 1995. Reliance was placed upon documentary material concerning the de facto relationship between the Plaintiff and Ms Batchelor, including a statutory declaration made by the Plaintiff on 29 July 2001 which stated that the de facto relationship had ceased on 16 July 1994. 48 I have had regard to the submissions made on behalf of the Plaintiff and the Defendant on this issue. In my view, Ms Burr was a truthful and reliable witness. It was her evidence that the conversation in 1995. She explained the basis upon which she could place the conversation by reference to her husband's own death. I accept the evidence of Ms Burr that the conversation occurred in 1995. Her evidence corroborates the primary account of the Plaintiff in his affidavit that the conversation took place at that time. The evidence points to a continuing association between the Plaintiff and Ms Batchelor in 1995. The fact that Dr White saw the Plaintiff in early 1996 supports the conclusion that the conversation occurred in the later part of 1995. I am satisfied on the balance of probabilities that the conversation took place in 1995, and probably about August 1995.

Some Issues Concerning the Credibility of the Plaintiff 49 A challenge was made by the Defendant in submissions to aspects of the Plaintiff's credibility. I accept that the Plaintiff was an essentially honest witness. He made a number of admissions against interest and made concessions under cross-examination. 50 There is no doubt that he was stationed on HMAS Melbourne and, given his statement to the Royal Commission in 1964, it is clear that he was involved in rescue activities after the collision which were likely to have been frightening and traumatic. This is not a case of a sailor who was merely on board HMAS Melbourne, observing events from a distance. 51 The Plaintiff appears to have a steady work history after leaving the RAN. He worked initially as a fireman in Canberra and then at the Orroral Valley Tracking Station from about 1968 to about 1985, when he was voluntarily retrenched. It does not appear that there are actual financial records disclosing his rates of pay for this period, but the evidence establishes that he was paid award rates and thus his level of income may be identified sufficiently. 52 From about 1985 to about 2001, the Plaintiff operated a concrete truck business. The tax returns for this business (or most of them) have been provided to the Defendant. It does not appear, on the evidence, that there are other records concerning the operation of the business during that period. 53 It appears that the Plaintiff is living in a house used for accommodation of Vietnam veterans in Queensland. He maintains that he has had a significant problem with alcohol over many years which contributed to the breakdown of his marriage. 54 With respect to the Plaintiff's drinking habits in February 1964, the Plaintiff corrected a statement made in his affidavit of 26 April 2001 (paragraph 17) in his affidavit of 13 February 2006 (paragraphs 6-9). In his 2006 affidavit and his evidence on the present application, the Plaintiff stated that he was a social drinker before the collision. He had been mildly inebriated on a few occasions prior to the collision. He stated that, before the collision, he drank mainly to be sociable when others were having a drink, whereas after the collision he drank "to help me to forget and to help me sleep" (paragraph 7, affidavit of 13 February 2006). 55 The Plaintiff was cross-examined closely concerning accounts given by him before 1964 to RAN medical officers concerning his intake of alcohol. The Plaintiff admitted that he said what was attributed to him in the RAN medical records, but said that his statements did not truly reflect his actual alcohol intake. I accept the Plaintiff's explanation in this respect. No doubt the question of the Plaintiff's alcohol intake before and after the collision will be explored at the hearing of his claim for damages. My finding with respect to the Plaintiff's evidence supports the conclusion that an extension of the limitation period ought be granted.

56 I accept that the Plaintiff was anxious about rescue activities so that he left his position as a fire services officer at Canberra Airport after 12 months. I accept that the Plaintiff had some general appreciation that his anxiety in this respect was associated with his traumatic experience in undertaking rescue activities for survivors of HMAS Voyager in February 1964. I accept also that the Plaintiff experienced flashbacks from time to time in later years and sleep disturbance involving thoughts of rescue events arising from the collision. As will be seen, however, I am satisfied that the Plaintiff has established the requirements under s.60I of the Act.

Events Since 1996 Concerning the Plaintiff's Claim 57 Submissions were made with respect to evidence touching upon the just and reasonable test in s.60G of the Act. Mr Taylor, solicitor, gave evidence for the Plaintiff on the application. He first received instructions from the Plaintiff in early 1996. Mr Taylor has acted in the past, and continues to act, for a number of plaintiffs who have commenced proceedings against the Defendant arising from the collision between HMAS Melbourne and HMAS Voyager. 58 On 14 August 1997, a Statement of Claim was filed in this Court together with a Notice of Motion seeking an extension of the relevant limitation period. 59 On 30 September 1997, the Defendant filed a Defence in the proceedings. 60 Mr Taylor stated that in late 1997 and early 1998, he was informed by Mr Ktenas, principal solicitor for the Defendant, that he had recommended to his client that the claims of HMAS Melbourne personnel be mediated and he was hopeful that that would occur. During discussions between Mr Taylor and Mr Ktenas in early 1998, the latter indicated that he wished to have all of Mr Taylor's clients psychiatrically examined so as to obtain psychiatric reports for any mediation or in preparation for the trial if necessary. Discussions continued between Mr Taylor and Mr Ktenas concerning a number of Mr Taylor's clients. On 7 August 1998, Mr Taylor wrote to Mr Ktenas regarding arrangements for Dr Jonathon Phillips to psychiatrically examine the Plaintiff on behalf of the Defendant. On or about 21 September 1998, Mr Taylor was informed by Mr Ktenas that the Plaintiff and other HMAS Melbourne plaintiffs could not be psychiatrically examined by Dr Phillips until February 1999. Mr Taylor suggested that other psychiatrists be engaged by the Defendant for this purpose. 61 After further correspondence, the Plaintiff was examined by Dr Phillips on 3 March 1999. I note that the Defendant has not served any report of Dr Phillips on the Plaintiff for the purpose of this application. 62 Mr Taylor's affidavit recounted attempts made by him to list applications for extension of time by HMAS Melbourne plaintiffs, including the present Plaintiff. Efforts were made by Mr Taylor in this respect, in particular, in 1999. 63 In about late 2000, Mr Taylor was informed by Mr Ktenas that the Defendant was considering amending its Defence in all HMAS Melbourne claims to proceed under the Limitation Act of the Australian Capital Territory. This issue apparently related to a decision of the ACT Supreme Court in Blunden v Commonwealth of Australia [1999] ACTSC 128. This issue was not resolved until the High Court of Australia handed down its decision in Blunden v Commonwealth of Australia [2003] 218 CLR 330 on 10 December 2003. Mr Taylor stated that a further delay in the present litigation arose from this aspect. 64 The Plaintiff's affidavit sworn 26 April 2001 in support of the present application was filed on that day. 65 An affidavit of Renishka Naidoo affirmed 14 February 2006 was read in the Plaintiff's case and the deponent was not required for cross-examination. The affidavit touched upon the question of particulars since 2003. In 2004, Hislop J undertook case management with respect to proceedings arising from the HMAS Melbourne/HMAS Voyager collision. A number of meetings took place between Hislop J and the legal representatives for the parties culminating in his Honour's determination that the issue of particulars should be determined on 11 February 2005. A test matter (Schofield v Commonwealth of Australia) was selected for a ruling as it covered a greater number of issues than other proceedings. Following this process of resolution concerning particulars, the Defendant was provided with the Plaintiff's answers to the consolidated request for particulars by letter dated 20 July 2005. 66 I note that the Plaintiff's application for extension of the limitation period was not reached in this Court in March 2006 and again in July 2006. 67 The evidence of Mr Taylor and the documentary evidence points to a number of events which have contributed to delay in the hearing of the present application. Although the Defendant filed a Defence on 30 September 1997, it appears that it was considering, for some extended time, the question whether application would be made to amend its Defence to raise a further point concerning the proper law for the proceedings, which could affect both the venue and nature of any extension application to be bought. 68 The Court file reveals that, on 16 November 2001, the Plaintiff's matter, together with about 10 other matters were mentioned before Wood CJ at CL who stood the matters over for mention before the List Judge on 22 November 2001 with a view to fixing a date for determination by a Judge of the question as to whether the Defendant should be allowed to amend its defence to raise the further point of proper law for the proceedings. 69 I was informed by Mr Barry QC (T136-137) that application to amend the defence had not been pressed in this claim and that the current defence is that filed on 30 September 1997. The correspondence contained in affidavits suggest that there was a deal of toing and froing over a period of years concerning other cases which may bear upon possible defences and whether the Limitation Act of New South Wales or the Australian Capital Territory (or somewhere else) was applicable. See Commonwealth v Stankowski; Commonwealth v May [2002] NSWCA 348 (dealing with the amendment of defences to plead the Limitation Act ACT)) and Blunden v Commonwealth of Australia. 70 It appears that the ongoing dispute concerning the scope of particulars sought by the Defendant was considered by Hislop J, in an informal way, thereby leading to a reduced request for further and better particulars which the Plaintiff agreed to answer. This controversy appears to have extended into 2004 (and perhaps beyond) and thus contributed to the delay before the extension application was listed. 71 The question of delay bears upon the "just and reasonable" test under s.60G(2) which is reached if the Plaintiff passes through the s.60I gateways. There appear to be a number of explanations for the delay of a decade between the filing of the claim and the hearing of the limitation extension application. These include some delay on the part of Mr Taylor, acquiescence on the part of the Defendant, the delivery of an apparently onerous request for further and better particulars which was narrowed following intervention by Hislop J and the inability of the Court to reach the matter twice in 2006. 72 The Plaintiff was examined for the Plaintiff by Dr Phillips, psychiatrist, on 3 March 1999. The Defendant has not served any report by Dr Phillips. The inference ought be drawn that the Defendant's specialist psychiatrist had an opportunity, which was availed of, at a relatively early stage (3 March 1999) to obtain a detailed and particular history from the Plaintiff concerning his personal and working life, his medical history and his account of symptoms and treatment obtained by him, all of which are capable of bearing, in one way or another, upon the factors contained in s.60G and s.60I of the Act. Indeed, the very purpose of the Defendant arranging medical appointments with a group of HMAS Melbourne plaintiffs in 1999 (apparently before extension applications had proceeded) was to obtain material relevant to that application, as well as to any proceedings which may go forth if an extension is granted. 73 Although the Defendant can point to the passage of time, missing RAN records and unavailable records concerning the Plaintiff's employment history since 1967, I am satisfied that there remains a substantial body of material which, in my view, would permit a fair trial to go forward. 74 It appears that the Defendant caused investigators to seek out former HMAS Melbourne crew members for the purpose of asking if they had a recollection of the Plaintiff. Some had no recollection and some remembered him by name only. Some said that they had a recollection of the Plaintiff. It does not appear that statements were taken from persons who said that they had a recollection of the Plaintiff or, if statements were taken from these people, they have not been included by the Defendant in the substantial documentary materials advanced on the present application. 75 However, where the Defendant leads voluminous documentary material on the application, but does not include:

(a) any report of Dr Phillips resulting from his examination of the Plaintiff on 3 March 1999, or

(b) any statements taken from former HMAS Melbourne crew members who remembered the Plaintiff and who were spoken to by investigators,

then it renders it more difficult for the Defendant to submit with force that it would not be just and reasonable to extend the limitation period. The Defendant has gone into evidence and, if it be the case that the Defendant has been selective in the evidence which it has put forward on the application, then that does not assist the Defendant's position in resisting the application.

Application of Relevant Legal Principles 76 The principles applicable on an application such as this have been the subject of a number of recent decisions of the Court of Appeal, which have considered the construction and operation of ss.60G and 60I of the Act: 2005 Smith appeal; Commonwealth of Australia v Shaw; Commonwealth of Australia v Pearce; Commonwealth of Australia v Lewis [2007] NSWCA 127; Commonwealth of Australia v Smith [2007] NSWCA 169 ("2007 Smith appeal").

Section 60I(1)(a) 77 The matters contained in s.60I(1)(a)(i), (ii) and (iii) are expressed in the alternative. Accordingly, the Plaintiff must demonstrate that he falls within one or more of these categories for the purpose of passing through the first gateway applicable on an application such as this. 78 It is the actual knowledge of the Plaintiff with which the Court is concerned under s.60I(1)(a), not constructive knowledge or the knowledge of the Plaintiff's agent or solicitor: Harris v Commercial Minerals Limited (1996) 186 CLR 1. The relevant personal injury for the purpose of this provision is a recognisable psychiatric condition. If the Plaintiff was only aware of distress or an emotional reaction to the collision or that he had some problems, then he was not aware that he had a personal injury: 2005 Smith appeal at [7], [16], [104], [181]; 2007 Smith appeal at [23]. 79 The Defendant accepted that, on the authority of 2005 Smith appeal, it would be open to the Court to find that the Plaintiff did not "know that personal injury had been suffered" because he had not obtained a diagnosis of a psychiatric condition. 80 For the purposes of s.60I(1)(a)(i), I am satisfied that the Plaintiff did not know prior to early 1996 that personal injury had been suffered. 81 The extent of injury referred to in s.60I(1)(a)(ii) refers to all the consequences of an injury: Harris v Commercial Minerals Limited at 11. On the evidence, I am satisfied that the Plaintiff had no idea that he had a psychiatric disorder until he spoke to Ms Barbara Burr in 1995 and then saw a medical practitioner who referred him to Dr White, psychiatrist, in 1996. I am satisfied that the Plaintiff has demonstrated that he was unaware of the nature or extent of personal injury suffered for the purpose of s.60I(1)(a)(ii) of the Act. In this respect, it is important to bear in mind that the Court is dealing with psychiatric injury and not an obvious physical impairment: cf CRA Limited v Martignago (1996) 39 NSWLR 13; 2005 Smith appeal at [68], [117]-[119]. 82 The alternative basis in s.60I(1)(a)(iii) requires the Plaintiff to establish that he 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. 83 I accept the Plaintiff's submissions, as summarised below, that the requirements of s.60I(1)(a)(iii) have been satisfied as well. The subsection has three elements - awareness of personal injury, the act or omissions of the Defendant and the connection between those two elements. Mr Melick SC submits that the Plaintiff was unaware of the acts and omissions, the mistakes of the Defendant that caused the collision, so that he could not have been aware that they caused his injury. The relevant acts or omissions are those upon which the Plaintiff relies. Mr Melick SC notes the Plaintiff's acknowledgment that he knew that "something had gone wrong" and his belief that someone on the bridge of either vessel had failed to manage his ship safely. Although it may be accepted that the Plaintiff knew, and it would have been obvious, that something had gone wrong, I am satisfied that the authorities make it clear that this is not enough. He submits that the Plaintiff was unaware of the mistakes made by the crew of either vessel that led to the collision until he was shown the Statement of Claim. Mr Melick SC submits that this is not surprising, given the nature of some of those acts, such as the signals between the two vessels. He submits that the present Plaintiff is in a similar position to the Plaintiff in Baragwanath v Commonwealth of Australia [2005] NSWSC 575, where it was held (at [24], [27]) that the plaintiff's knowledge that collisions do not just happen and that the Navy was at fault was insufficient where the Plaintiff had no knowledge of the facts upon which a finding of negligence might be based. 84 Even if the Plaintiff was aware of some of the acts or omissions, Mr Melick SC submits that this would not preclude satisfaction of s.60I(1)(a)(iii): Dedousis v Water Board (1994) 191 CLR 171; Commonwealth of Australia v Shaw at 331 [22].

85 Mr Melick SC submits that the Plaintiff was unaware of the connection between his psychiatric problems and the collision. Connection is used in a causal sense: Commonwealth of Australia v Shaw at 331 [21]. The Plaintiff relies upon the evidence of Professor McFarlane in support of a conclusion that he was unaware of the cause of his problems. 86 I accept the Plaintiff's submissions that he has brought himself within each of the three alternatives contained in s.60I(1)(a) of the Act. Accordingly, I am satisfied that the Plaintiff commenced his action and applied for an extension of time within three years of becoming aware of the fact that he had suffered a psychiatric injury as a result of the collision. 87 The Plaintiff must demonstrate one or more of the matters contained in s.60I(1)(a) of the Act and that he fell within the relevant category or categories at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted. Mr Melick SC submits that the Plaintiff had established that he acted reasonably for the purpose of this element of the test. He submits that the Plaintiff was not in a position to do anything before 1995, at which time he sought some help from Ms Burr and promptly took her advice to obtain a referral to Dr White. Mr Melick SC points to the unchallenged evidence of the Plaintiff that he did not in fact know of the mistakes that led to the collision. He submits that no evidence has been led, including by way of cross-examination of a plaintiff, as to enquiries that should have been reasonably undertaken by him and that would have led to him gaining knowledge of all the acts and omissions leading to the collision.

Section 60I(1)(b) 88 I accept the Plaintiff's submissions on this aspect. I am satisfied that the Plaintiff has established that he acted reasonably in the circumstances of this case. 89 The Defendant made detailed submissions to the effect that the Plaintiff had not satisfied the requirements of s.60I(1)(b) of the Act which require that an application be made within three years after the Plaintiff became aware (or ought to have become aware) of all three matters listed in s.60I(1)(a)(i)-(iii). 90 In determining whether the Plaintiff has satisfied the normative element in s.60I(1)(b) of the Act, namely whether he ought to have known of the relevant matters, I have regard to the evidence of the Plaintiff and Professor McFarlane. As stated earlier, the evidence of Professor McFarlane bears on this issue in the way identified by Basten JA in Commonwealth of Australia v Shaw. I accept Professor McFarlane's evidence that it was reasonable and understandable that the Plaintiff did not seek any assistance until the mid-1990s. In this respect, I rely upon pages 11-14 of the report dated 5 March 2007 and the entire report of 12 March 2007. 91 Having considered the evidence of the Plaintiff and Professor McFarlane, I am satisfied that the Plaintiff meets the requirements of s.60I(1)(b) of the Act.

The Just and Reasonable Test 92 It is necessary now to turn to the just and reasonable test in s.60G of the Act. The onus lies upon the Plaintiff in this respect although an evidentiary onus lies upon the Defendant with respect to particular areas where significant prejudice is claimed. 93 I have referred earlier to Mr Taylor's evidence concerning events since 1996 which bears upon the just and reasonable test. 94 I accept the submissions of Mr Melick SC that the Plaintiff has satisfied the requirements contained in s.60G of the Act. As has been observed in earlier cases, a fair trial is not a perfect trial: Commonwealth of Australia v Lewis at [31]. I am satisfied that the Defendant may have a fair trial of the Plaintiff's claim. The areas of particular prejudice raised in the Defendant's evidence do not, in my view, affect this conclusion. In particular:

(a) a body of contemporaneous RAN documents concerning the Plaintiff is available;

(b) the Plaintiff has had a reasonably steady employment history since his discharge from the RAN - in particular, there was an extended period of employment at the space tracking station at Orroral Valley followed by an extended period of employment as a concreting contractor;

(c) taxation records are available for the period from 1986 to 2001 (the Plaintiff was granted a disability pension in 2001) - these records are available to the Defendant;

(d) the level of investigation undertaken on the Defendant's behalf with respect to personnel who served on HMAS Melbourne who may have known the Plaintiff was superficial and not especially probative - it appears from the evidence that a costs ceiling of $1,500.00 was placed upon this aspect of the investigation - in my view, it provides a little assistance to the Defendant on this application;

(e) the evidence demonstrates that there are a significant number of ex-personnel from HMAS Melbourne who are available - the fact that many have been or are plaintiffs themselves is not a reason for disregarding their potential evidence in a hearing of the Plaintiff's claim;

(f) with respect to the Plaintiff's family and personal history since 1964, it appears that there are family members available and known to the parties who are potential witnesses on these topics;

(g) insofar as the Plaintiff's alcohol intake since his enlistment in the RAN is a significant issue to be considered at any hearing of his claim, I am satisfied that the Defendant will have a fair opportunity to explore this question at the hearing - this is not a case such as Commonwealth of Australia v Diston [2003] NSWCA 51;

(h) the experience of the Defendant in preparing for and litigating claims for damages by HMAS Melbourne plaintiffs is relevant to the question of prejudice and a s.60G discretion - this is not unchartered territory for the Defendant;

(i) factors which have contributed to delay in this application progressing since 1997 were considered early in this judgment - in my view, those factors provide little assistance to the Defendant on this application. 95 In all the circumstances, I am satisfied on the balance of probabilities that it is just and reasonable for the Plaintiff to have an extension of time. The Plaintiff has satisfied the requirements of s.60I and s.60G of the Act. I propose to make an order extending the limitation period to commence proceedings to 14 August 1997.

Conclusion 96 It was for these reasons that I made an order on 31 January 2008, pursuant to the Limitation Act 1969, that the limitation period for the cause of action in this proceeding be extended to 14 August 1997. 97 On 31 January 2008, I made an order that costs of the application be costs in the cause. After orders were made, counsel for the Plaintiff requested that the costs order be vacated so that the Plaintiff could make submissions in writing in support of an application that the Defendant pay the Plaintiff's costs of the application. I vacated the costs order in these circumstances. I will hear counsel on the question of costs. A timetable will be set for the making of written submissions on the costs question.

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.

At a glance

Court

Decision date

Before

Source

Judgment (58 paragraphs)

Parties

Cases Cited (14)

Cited By (3)