Lancett v Commonwealth of Australia

Ian Ramsay Lancett (Plaintiff) PARTIES : The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Harrison

Mr G Melick SC (Plaintiff) COUNSEL : Mr C Barry QC (Defendant) Ms M Morris of James Taylor & Co Myrtleford Vic SOLICITORS : (Plaintiff)

Ms D Robinson Australian Government Solicitor

CATCHWORDS : Extension of time to commence proceedings - ss 60G & I Limitation Act - Voyager/Melbourne collision LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60G & I Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 Commonwealth of Australia v Dinison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1996) 186 CLR 1 Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA, unreported 7 March 1997) CASES CITED : Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC, unreported Badgery-Parker, 1 May 1997) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreportged 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995) McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001 Commonwealth of Australia v McLean (1995) 41 NSWLR 389 DECISION : (1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 14 August 1997; (2) Costs are reserved.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20780/97 - IAN RAMSAY LANCETT v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings, ss 60G and 60I Limitation Act - Voyager/Melbourne collision)

1 MASTER: By notice of motion filed 14 August 1997 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 20 June 2002. The defendant relied on the affidavit of Donna Robinson sworn 26 June 2002. 2 I closely observed the plaintiff while he was giving evidence and being cross examined. There were inconsistencies in his evidence. He was asked a question about the state of his memory to which he replied that he didn't think that there was much wrong with his memory only that he forgets. There is an inconsistency in the history he gave Dr Knox in November 2000 with that contained in his affidavit. I shall refer to this later in this judgment. He was also asked about his awareness of whether he suffered from a psychiatric condition. He showed little insight into his psychological state and did not believe that he had any problems of alcohol abuse but that he had been told that he does. The plaintiff agreed that he was probably the same man as he had always been (t 11.55) but had been depressed. Later when asked whether he has a psychiatric problem he said that his personal opinion is that he does not think that he is nuts but that he has to have a problem somewhere (t 15.50). The plaintiff's lack of insight into his psychiatric problems is supported by medical evidence. Nevertheless he was able to give precise evidence on other matters such as names and locations of potential witnesses. 3 For the purposes of this application I accept that the plaintiff's recollection of events of the collision are those set out in his affidavit. For the purposes of this application only I find the following facts.

(1) The plaintiff was born on 12 May 1938 and is presently 64 years of age. The plaintiff resides in Bogangar, New South Wales. He has resided there since the early 1970's.

(2) On 22 October 1961 the plaintiff joined the Royal Australian Navy at the age of 23 years. He was in good health both physically and psychologically which is borne out by a record of the plaintiff's medical examination prior to enlistment. At the time of entering the Navy the plaintiff intended to make it his life career. Prior to the collision the plaintiff had a good relationship with his parents, and was engaged to be married. He was a good sportsman and a keen swimmer. Prior to the collision he was a social smoker and would have an occasional drink on social occasions.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of Able Seaman.

(4) On 10 February 1964 the Voyager was sunk when she collided with the HMAS Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives.

(5) At the time of the collision the plaintiff was in the mess sitting on his bunk reading. His mess was in the bow of the ship and had the cable and chain pipes running through it. The anchor locker was between the mess and the bow of the ship. The plaintiff heard an emergency call through the pipes. He then heard an incredibly loud crash and felt a jolt which threw him across his bunk. He also heard a terrible scraping sound. He recalls the air of the mess started to smell like rust. This smell continued until he got up on deck at about 9:10pm. Immediately after the collision the lights went out and the hatch doors were closed down on his mess. He was terrified and was trying to work out what was happening. He tried to calm himself. He heard the screeching of metal on metal for what seemed like hours. There were about six other sailors locked down in the mess with him. The lights remained off until the hatches were opened up.

(6) When the hatches were opened up the plaintiff went to the bow of the ship or what remained of it. This was his emergency station. His role was to look after the anchor area and the bow of the ship. When he reached the bow he saw the Voyager's stern. The signal lights were turned towards the Voyager. These illuminated the hull of the Voyager. He could see boats starting out to pick up survivors. He could see the survivors thrashing about in the water. He could see some people being lifted into the boat. The plaintiff felt numb with shock. The plaintiff was told to go to the aft starboard section of the ship to help lower the Admiral's ladder to help the survivors get on board. The survivors were all a mess covered in oil, some bleeding and cradling limbs. He saw several dead bodies being pulled away. He was ordered to wash down the forecastle deck with a hose and broom. The plaintiff remembers what he believed to be bits of flesh and blood that he had to wash overboard. The plaintiff seemed to go into automatic pilot and doesn't remember coming back to Sydney. He felt guilty about what had happened.

(7) Two weeks after the collision the plaintiff was posted to the HMAS Stewart. Some time after this he saw the medic on board. He told him he was having problems coping with Naval life since the collision. He was told not to worry about it and to get on with his job and toughen up. The medic said that his reaction was normal and prescribed some medication. The plaintiff did not seek any other medical help. He took his advice and tried to get on with his life.

(8) Prior to the collision the plaintiff would smoke 3-5 cigarettes a day, and sometimes none at all. After the collision his smoking increased dramatically and he started to smoke a packet a day or more to help him relax and to settle his nerves. Prior to the collision the plaintiff drank very little alcohol, limited to an occasional drink on social occasions. After the collision he needed to drink to help him sleep and to relax. He would go out and get drunk whenever he was ashore. It helped him to relax and to stop thinking about the collision.

(9) The plaintiff was posted to HMAS Waterhen. He was then transferred to engineering and was required to sign on for another three years over and above the nine years he had initially signed on for. He was required to do this in order that he could complete an ERA course at the HMAS Cerberus and qualify as a mechanician. He now hated being at sea and realised that he would have to re-skill if he wanted a civilian life. The plaintiff started to drink in his dormitory at night which helped him to sleep. He wanted to get out of the Navy and the easiest way out was to fail the course. He failed the course and was discharged. There is a document from the Navy that shows that the plaintiff failed the course. He worked for one or two weeks as a civilian at Garden Island for the Navy as a diesel fitter.

(10) From mid July 1965 until about the end of 1967, the plaintiff worked with CSR at Pyrmont Sydney as an engineer, and fitter and turner. He had problems getting along with his work colleagues and was drinking too much.

(11) From about mid 1967 to the end of 1967 he worked at the Pyrmont Hotel Sydney as a barman. In mid 1968 he left that job and started working at the Newington Hotel near Petersham as a barman. He worked there from about mid 1968 to mid 1969. Following that, he worked at the Freemasons Hotel in Burwood as a barman from about mid 1969 until mid 1970. He was still drinking a lot.

(12) The plaintiff's next job was at Kosciusko Chalet where he worked from early or mid June 1970 through to October 1970. He may also have worked there during the 1971 season. He met his wife there and they moved to Sydney, where he found work at Gregory & Hickey Pty Ltd as an engineer. From about mid April 1973 until about the 5th July 1973 he worked at the Kingscliff Hotel near Tweed Heads as a barman. His next employment was with Shiells Engineering Pacific Highway in South Tweed Heads as a fitter and turner. He worked there from early July 1973 until mid 1976.

(13) The plaintiff was unemployed from about mid 1976 until about December 1976. From December 1976 to early 1978 he was employed with Norco Pty Ltd as an engineer. He started to have trouble with his back and left this employment. His next job was with Dormer Engineering as a fitter and turner from about February 1978 to about June 1979. He left this job due to his bad back. The plaintiff has not worked since and has been in receipt of the invalid pension ever since.

(14) The plaintiff still has nightmares about the collision, but they are not as frequent as they once were. His wife tells him that the nightmares will go on for several nights in a row and then he will settle down. He is startled very easily and cannot handle sudden noises.

(15) Until now, the plaintiff had not spoken about the collision with anyone as he has tried to forget about that night. He finds it difficult to trust people and is withdrawn. Since the collision he has found it difficult to make friends and although he enjoyed attending social functions prior to the collision, since then he only goes to the pub. After the collision he would fight a lot and became bad tempered. Prior to the collision he had never lost his temper and was a good natured person.

(16) In 1970 the plaintiff met his wife. He has been short tempered and irritable with her and can't tell her how much he loves her. He has been unable to relate to his children and couldn't get close to them. He does not talk with them unless they ring him. He does have one good friend Warwick Burke who he has known since 1957.

(17) Until preparing for this case the plaintiff has never seen a psychiatrist or psychologist and has never considered that he had an injury.

(18) An acquaintance of the plaintiff alerted him to an advertisement placed by a solicitor concerning claims against the Commonwealth by ex Naval personnel involved in the Voyager collision. The plaintiff contacted the solicitors and was advised to see a psychiatrist. In 1996 he saw Dr Lichter a psychiatrist whom he did not like, and gave him his history without expanding on his feelings. Dr Lichter did not tell him what, if anything, was wrong with him. The report of Dr Lichter has not been served but is in existence.

(19) In about August 2000 the plaintiff was diagnosed as having cancer of the tongue. Ever since the Voyager collision he had been smoking heavily, sometimes 40 cigarettes a day, and at other times more. He was also drinking very heavily. The plaintiff was treated by the Oncology Department of the Royal Brisbane Hospital and the cancer went into remission. In about April 2002 he was diagnosed as having cancer of the lung.

(20) The plaintiff believes that he was initially told that cigarette smoking had caused or contributed to his cancer sometime after August 2000. The first time that he became aware that alcohol abuse was a contributing factor to his lung cancer was when he read the report of Dr Robert Hitchins dated 7 May 2002 on 20 June 2002. Dr Hitchins states that the plaintiff's lung cancer is incurable and his life expectancy is 3-4 months, unless he sustains a dramatic response to chemotherapy in which case his outlook is still less than 12 months. Dr Hitchins opines that the plaintiff's cigarette smoking was the major contributing factor to the development of cancer, and that alcohol abuse would have had a facilitating role.

(21) On or about 28 November 2000 the plaintiff was sent to see Dr William Knox, psychiatrist. Dr Knox did not advise him as to whether he was suffering from any psychiatric illness or any other illness. The first time that he gained knowledge that he was suffering from a psychiatric illness may have occurred during discussions with his solicitor James Taylor over the past few years. He has no distinct recollection however of Mr Taylor ever informing him specifically what injuries, if any, he was suffering from. At page 2 of that report Dr Knox stated that the plaintiff has no memory of the night of the 10 February 1964 from some minutes or hours before the collision until the Melbourne arrived back in Sydney some 36 hours later. Not surprisingly Dr Knox reports that the plaintiff has no conscious memory or recollections of the event. In Dr Knox's second report (dated 31 May 2002) he records that the plaintiff has much more recollection of the events the night of the collision but this does not cause him to alter his diagnosis.

(22) The first time that he can positively swear to becoming aware that he was suffering from a psychiatric injury was when he read the reports of Dr Knox on 20 June 2002. It was only on reading Dr Knox's reports on 20 June 2002 that he became aware for the first time that he was suffering from substance abuse or alcohol abuse, that he was suffering from brain damage caused by the alcohol by way of substance abuse, that he was suffering from post traumatic stress disorder and that he was suffering from a depressive reaction. The first time he became aware that he was suffering from a condition called Wernicke's Encephalophy and chronic Korsakoff's psychosis was on 20 June 2002 when he read Dr Knox's report. Having done so, he now understands that it is said that those conditions are caused by his abuse of alcohol.

(23) In his report dated 28 November 2000, Dr Knox states that the plaintiff has brain damage apparently caused by alcohol abuse over several decades. He opines that his heavy alcohol use is quite probably related to his traumatic experiences in the accident. He states that PTSD is not especially prominent in the plaintiff's presentation, being masked to a large extent by his denial and alcohol abuse. Dr Knox goes on to say that the resultant heavy alcohol use has caused organic brain damage. The plaintiff's brain disorder is permanent. According to Dr Knox the plaintiff's acute Wernicke's Encephelophy has settled, but he is left with a permanent Korsakoff's psychosis. The last two diagnoses are disputed by the defendant's psychiatrist Dr Milton.

(24) The plaintiff read Dr Brendan J Holwill, psychiatrist's reports on 20 June 2002 in conjunction with Dr Knox's reports. Upon reading those reports and for the first time, he is now aware that as a consequence of the Voyager collision he suffered from psychiatric illness of depression and post traumatic stress disorder and that these conditions led to his abuse of alcohol and nicotine in the form of cigarettes. His alcohol abuse has led to brain damage and his cigarette and alcohol consumption has led to cancer. Prior to reading the reports of Dr Knox and Dr Holwill the plaintiff didn't understand the nature and extent of his psychiatric condition, substance abuse disorder or brain damage, nor was he aware of it.

(25) In his report dated 24 May 2002, Dr Holwill psychiatrist states that the plaintiff presents with chronic, moderately severe PTSD, with associated severe substance abuse (alcohol and tobacco), as a direct result of his experiences while serving on HMAS Melbourne, at the time of the collision with HMAS Voyager. As a result of his alcohol abuse he has now developed Korsakoff's psychosis. Dr Holwill states that the plaintiff's heavy smoking has contributed significantly to the development of his tongue and lung cancer. He opines that his psychiatric condition of substance abuse has arisen as a direct consequence of developing PTSD.

(26) It was only when he read the report of Dr Hitchins in conjunction with the psychiatric reports that he realised that his lung cancer was caused by substance abuse of cigarettes and alcohol, and that his substance abuse was in turn caused by his psychiatric conditions of post traumatic stress disorder and depression which in turn was caused by the Voyager collision.

(27) The plaintiff first read the statement of claim on or about 28 May 2002 when it was shown to him by his barrister. Until then he had no knowledge of any negligent acts or omissions of the defendant, nor did he know what had caused the Voyager collision. Until he read that statement of claim the plaintiff did not know the negligent acts or omissions had caused him to suffer psychiatric injuries in the form of depression, post traumatic stress disorder and other injuries including brain damage, substance abuse disorder and lung cancer.

(28) On 14 August 1997 the plaintiff filed a statement of claim and a notice of motion seeking to extend the limitation period.

The Law 4 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. 5 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)." 6 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: 7 (1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 14 August 1994. 8 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 14 August 1994); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b). 9 The plaintiff relied on s 60I (1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered from PTSD, depression, brain damage, substance abuse disorder, Wernicke's Encephalophy and chronic Korsakoff's psychosis until 20 June 2002, and neither was he aware of the nature or extent of those injuries until that date. 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 on 28 May 2002. However it is inconsistent that the plaintiff could have become aware on 28 May 2002 of the connection between his injury and the defendant's acts, but not aware of the injury until 20 June 2002. Due to the plaintiff's medical conditions, it is debatable as to whether the plaintiff has a full awareness of the nature or extent of his injury, even now. The words "become aware" means that the plaintiff must have knowledge and awareness of the fact that such a statement was given - see Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151. (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered" 10 Prior to the accident, the plaintiff knew that he was in good health both physically and psychologically. After the accident and prior to the expiration of the limitation period the plaintiff knew that he was having problems coping with Naval life but he thought that he was experiencing a normal reaction to the collision. He knew that he began to smoke heavily to relax and settle his nerves, and that he began to drink heavily to help him sleep and to relax and to keep him from thinking about the accident. He knew that he started having nightmares, and became withdrawn and unable to trust people. He knew that he no longer participated in social outings, instead choosing to frequent the pub regularly to get drunk. He knew that he was terrible to his wife, and was bad-tempered and irritable. He knew that following the accident he would fight a lot. He knew that he was unable to relate to his children and get close to them. In 2000 the plaintiff was aware that he had cancer of the tongue. The plaintiff was aware that this was caused by his smoking and drinking as his oncologist told him so (Ex 1 Para 39). 11 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. 12 While the plaintiff knew of symptoms he experienced over the years, it was when the plaintiff read the reports of Dr Knox when he swore his affidavit on 20 June 2002 that he became aware that he had a diagnosable psychiatric condition. At that time he also read the reports of Drs Holwill and Hitchins and became aware that he suffered from substance abuse, PTSD, depressive reaction, Wernicke's Encephalophy, chronic Korsakoff's psychosis and these conditions are quite probably related to the collision. He also became aware that the alcohol abuse caused brain damage and that the substance abuse caused his cancer. The plaintiff has a lack of insight into his psychiatric condition. Even if the plaintiff had some awareness of his diagnosable psychiatric condition by virtue of being told of this by his solicitor Mr Taylor or when reading his statement of claim the his knowledge was still acquired within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I1(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered" 13 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 (1996) 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. 14 I have referred to the state of the plaintiff's knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. As previously stated the plaintiff was unaware that he had a diagnosable psychiatric illness until 20 June 2002. 15 It is my view that the plaintiff did not know the nature or extent of his personal injury until May 2002 at the earliest when he became aware that he had a diagnosable psychiatric illness. As previously stated it is debatable whether the plaintiff has even at this hearing appreciated the true nature or extent of his condition. As previously stated at the hearing he gave evidence that he did not believe that he has any problems with alcohol abuse and believes that he has psychiatric problems although he knows that he is not "nuts" This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 16 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 17 The plaintiff deposed that it was not until he read the statement of claim on 28 May 2002 when it was shown to him by his Counsel, 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. This evidence was not challenged. 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 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;

(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 I accept that it was not until 28 May 2002 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. 22 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 23 The plaintiff relies on s 60G and s 60I (1)(a)(i)(iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. The major issue in this case is that of prejudice. 24 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 (1998) 43 NSWLR 195; 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). 25 The defendant submitted that the plaintiff had a tenuous case on the medical evidence particularly in relation to PTSD. The report of Dr Knox, a psychiatrist dated 28 November 2000 says that although PTSD is not especially prominent in the plaintiff's presentation, being masked to an extent by his denial and alcohol abuse, he believed that there was a diagnosable condition of this type according to DSMIV. Dr Holwell a psychiatrist in his report dated 24 May 2002 diagnosed the plaintiff as suffering from chronic moderately severe PTSD with associated severe substance abuse. It is not disputed that the plaintiff was employed by the defendant and that the defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage and the cause of the substance abuse and cancer will be in issue at the trial. However it is my view that the plaintiff has a real case to advance. 26 The principles concerning prejudice have recently been considered in Wynter [2000] 49 NSWLR 148, in which the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one: to be fair it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001. 27 The defendant has submitted that it cannot obtain a fair trial. In May this year the plaintiff became seriously ill. This matter has come on for hearing expeditiously. The defendant should be given credit for acting expeditiously in preparing its case. If the plaintiff succeeds in this application, the trial is listed for hearing in just over two weeks on 15 July 2002 in Lismore. The plaintiff has limited life expectancy. Due to constraints of time I have not had the opportunity to refine and shorten this judgment. 28 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 38 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 (1995) 41 NSWLR 389. 30 The defendant submitted that it will require access to relevant medical, hospital and other treatment records otherwise it will have no reasonable prospects of determining the accuracy of the plaintiff's allegations and will be prejudiced. Records from Sydney TAFE show that the plaintiff passed his Fitting and Machining Trade course in 1959. The plaintiff's service record in the Navy is available (Ex B). The plaintiff's medical file relating to his Navy service is in existence (Ex A). It seems that there are some other Navy files relating to the plaintiff available. His education Test 1 and Advancement board result records have been destroyed. Nevertheless, there is a report from the psychology section of HMAS Cerberus dated 1 June 1965 that states that the plaintiff became dissatisfied with the Navy after completing Part 2 training and he has made at least 4 attempts at discharge. The report written by senior psychologist A E Crook recommended that it was not worth continuing with the training and he should be discharged. Mr Crook has been located and although he does not remember the plaintiff he can give evidence from his written notes. 31 The entries in the medical file are mainly unremarkable except for one dated 27 October 1964 where a diagnosis of depressive reaction was made. The contents of the note focuses on the plaintiff's eye problem and then concluded with two sentences that say that now symptoms are worse than they have ever been and he likes his job. The examining Doctor was Dr G A Mende who despite enquiries being made has not been located. There is another entry in the Navy medical records dated 26 April 1963 where the plaintiff was diagnosed as having indigestion with chest pains. The Doctor who performed the examination was Dr Brian Vincent McDonnell. This doctor has been located and although he does not remember the patient he can give evidence from his notes. The plaintiff conceded that he must have told Dr Knox that he suffered a heart seizure during the evening of the collision, but gave evidence that he cannot remember much about that night at all. If the entry in the medical notes is correct, then the plaintiff's timing is incorrect. 32 In April 1973, the plaintiff moved to Bogangar (on the coast near the Queensland border) and still lives there. The plaintiff attended a number of medical practices in this area since 1973. From 1973 until 1983 Dr Becker of Kingscliff was the plaintiff's general practitioner. He has not been located. This is at a time when the plaintiff's evidence is that he only visited the general practitioner for minor problems such as colds and an in grown toenail. According to the plaintiff some medical practices have over the years closed down and the plaintiff had to seek out a new general practice but from the particulars supplied it appears that from 1973 to date the plaintiff has in the main consulted two general practitioners. However the plaintiff's evidence is that he did not suffer any serious problems except for his back nor did he seek any psychological or psychiatric assistance until his solicitor sent him to see Dr Lichter in 1996. There are results of blood tests taken in 1984 and 1985 provided by a Queensland laboratory. 33 Dr Warne's medical file should show if the plaintiff had been referred to a psychologist or psychiatrist between 1989 to date. From 17 June 1987 to date the progress notes produced by the Murwillumbah Community Health Services contain detailed monthly notes of the relationship between the plaintiff and his wife. Additionally the defendant has a copy of the health insurance commission (HIC) notice of past benefits (dated the 24 May 2000), which lists some of the plaintiff's treating doctors since 1984. The amount claimed during that period is insignificant. This bears out what the plaintiff says so far as from 1984 onwards. Since 1989 the plaintiff has consulted general practitioner Dr Warne. Dr Warne has produced his medical file to the court. This file has been inspected by the defendant's solicitors. Dr Lichter the psychiatrist who interviewed the plaintiff in 1996 has produced his file but this is currently subject to a claim for privilege by the plaintiff. 34 According to the plaintiff, it was in the year 2000 his health took a turn for the worse. Records from Queensland Laboratory, Gold Coast Health Service, Tweed Heads Hospital, Murwillumbah District Hospital, Louise Eleanor, community health worker and Dr Robert Hitchins have been produced. After the defendant's solicitor inspected the records of Dr Warne she found references to other doctors, namely St Vincent's Hospital, Dr Mason, Dr Cooney, South Brisbane Dental Clinic, Dr Hagen, Dr Nic Crampton, Dr M J Barry, Dr Poulsen, Dr Richard Adams, Dr Mark Thompson, Dr D J M Bartram, Dr Frank Welch and Dr Robert Burgess. As yet these documents have not been located. Most of these doctors were involved in the plaintiff's cancer treatment and most likely could be obtained on subpoena. 35 The plaintiff does not allege that his medical condition has incapacitated him from employment nor does he make any claim for past or future economic loss but he does claim the loss of his Defence Force retirement and disability pension to which he would have been entitled after 20 years of service in the Royal Australian Navy. Although the defendant submitted that it was important to obtain records and interview the plaintiff's employers since he left the Navy in my view this is not critical. The defendant does not need to obtain wage records from subsequent employers because the plaintiff has not made a claim for economic loss. The plaintiff's work history since leaving the Navy is that he worked between 1965 to 1967 with CSR as a fitter and Turner. Between 1967 to 1970 the plaintiff was employed as a barman. In 1967 he was employed at the Pyrmont Hotel, Newington Hotel near Petersham and the Freemasons Hotel in Burwood. In October 1970 the plaintiff was employed as a bar manager at Kosciusko Chalet. The manger was his brother-in-law Colin Rae. Colin Rae is alive, locatable and able to give evidence. In 1973 the plaintiff worked for Gregory and Hickey Pty Ltd, an engineering shop located in Glebe behind Grace Bros Broadway. 36 Aside from the plaintiff's brother in law, the defendant has been unable to locate any of the plaintiff's co-workers who could give evidence of the plaintiff's personality at work during the period after he left the Navy until 1973 when he moved to Tweed Heads. His wife can give general evidence about the plaintiff from 1970 onwards. The plaintiff has and continues to have a long time friendship with Warwick Burke which pre-dates the collision. This witness could give evidence as to any personality changes prior to and after the collision. 37 From 1973 to 1979 the plaintiff worked in Shiells Engineering at Pacific Highway South Tweed Heads as a fitter and turner. Laurie Shiell the owner of the business resides in West Tweed Heads and the plaintiff can obtain his address. In 1978 the plaintiff was employed by Norco Pty Ltd as an engineer. Mr Brian Albury worked at Norco but only had a faint recollection of the plaintiff. In June 1979 the plaintiff was employed at Dormer Engineering Mr Bob Noble had worked with the plaintiff at both Norco and Dormer and can give some evidence as to what the plaintiff was like at those times. Richard Morgan and John McCabe can give only very limited evidence in relation to the plaintiff working at Dormer. The plaintiff has not worked since 1979. There is some evidence available from the plaintiff's fellow employees between 1973 to 1979. 38 There are some gaps in the long history. There are no general practitioner's records for the period after the plaintiff left the Navy until 1984, this being the time when the plaintiff said he consulted general practitioners for minor ailments. If Dr Becker is located from the medical register, there will still be a gap in the medical records. However, after I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. Costs are reserved. 39 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 14 August 1997.

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