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: