60 I therefore think that the question of destruction of Navy records has to be approached bearing in mind that the Navy was aware of the fact that some survivors from the Voyager were suffering psychological injury, and that it should have been aware the same was likely to be true of some survivors from the Melbourne. In that context, if the Navy went ahead and destroyed records, the Commonwealth, rather than prospective plaintiffs, should bear the consequences. It must have been apparent at the time of the collision that many hundreds of sailors, not just those from the Voyager, had been or were likely to be affected. If, in those circumstances, the Navy chose to destroy its records, with the result (whether or not intended) of making more difficult the assessment of future claims for compensation, the Navy must take upon itself the risk that it was thereby likely to be disadvantaged in defending such claims."
39 The plaintiff claims that but for the collision, he would have continued to progress through Naval ranks with promotion ultimately to a commissioned officer. The plaintiff alleges that he would have retired at about 55 years in this senior position and would have been entitled to appropriate DFRB entitlements and other service benefits. At trial, it will be necessary to examine what steps the career path entailed and how many positions on each promotional level were available.
40 After the collision, the plaintiff remained in the Navy until 1972, some 8 years after the collision. There is a large volume of records held by the Navy in relation to the plaintiff. These records include his medical records.
41 Since the plaintiff left the Navy in 1972 he has had four employers namely Myers Timbers, Strathpine (1972-1974), Amoco Oil Refinery, Pinkemba, Brisbane (1974-1979), share farming with E A Oehmichen, Maleny and BP Oil Refinery, Pinkemba, Brisbane (1986-2002). At the plaintiff's last place of employment, he had a successful career earning a package of $142,000.00, having been promoted to the position of shift manager where he was in charge of 22 personnel. He was responsible for the safe operation of the oil refinery [t 21].
42 The plaintiff does not have wage or tax records between 1974 and 1980. However, he estimates his earnings to be approximately $100 per week at Myers Timbers and states he started on $135.00 per week at Amoco Oil Refinery. Documents relating to Mr Lymbery's income for the financial years 1981 to 2003 are available. These include income tax returns, group certificates and pay slips, as well as various letters from BP Refinery Ltd relating to salary increments from 1999 to 2002.
43 Numerous persons from the various workplaces are available to give evidence at trial. They include: Geoff Myers (employer) of Myers Timber, Eddie Oehmichen (employer), Ron Tesch and Rob Cork of dairy farm; John Kenny, Ken Goodman, Leo Strub, Barry Askew, Jack Hazeldine (supervisor) and George Burden (supervisor) of Amoco Oil Refinery; John Kenny, Leo Strub, Barry Askew, Jim Blunt, Ken Goodman (training supervisor), John Thorpe (Operations Manager), and Joseph Thorpe (Operations Manager) of BP Oil Refinery.
44 There are also a number of persons who are available to provide evidence in relation to Mr Lymbery's pre and post collision character and demeanour: Victor Turton of Niagara Park NSW, Cecil Gretton of Banyo Queensland, and Colin O'Toole of Ballarat Victoria. Additionally, Ross Price of French's Forest NSW, Ross Wendt of Quakers Hill NSW and Ian Munday of Wellington Point Queensland will also be available to provide evidence in relation to Mr Lymbery's post collision character and demeanour.
45 The plaintiff claims gastric reflux (he first sought treatment from Dr McKerring a specialist in 1987); worsened skin rashes (first diagnosed while the plaintiff was still in the Navy and have since been treated by various doctors at the Lutwyche Medical Centre, including Drs Cumberford, Robinson and Dann); night sweats and disturbed sleeping patterns (sleep apnoea was first diagnosed at a sleep clinic at Mater Hospital in the 1990's). The plaintiff suffered an ulcerated gullet in the late 1980s as a result of the acid reflux. He was treated by Dr McKerring and continues to receive treatment from Dr McKerring. He continues to see Dr Dann for skin rashes, acid reflux, sleeping problems and sleep apnoea. As Drs McKerring and Dann are continuing to treat the plaintiff, I infer that they will be available to give evidence and be cross examined.
46 The defendant submits that the lack of medical evidence on Mr Lymbery between the collision and 2001 (when he first sought psychiatric assistance) precludes it from having fair trial. The defendant refers to a number of documents which are either missing or have been destroyed (as set out in MFI1). However, there are extensive Navy records for the plaintiff still in existence. There are also detailed records of his medical treatment in existence.
47 There is also information from other sources such as the HMAS Melbourne Association, HMAS Voyager Association and the Returned Services League.
48 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.
49 Costs are discretionary. In Wynter, Sheller JA at paras 147-148 stated that, in relation to costs, ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable [my emphasis added]. The plaintiff should pay the defendant's costs as agreed or assessed.