Lymbery v The Commonwealth of Australia

CATCHWORDS : Extension of time to commence proceedings, ss 60G and 60I Limitation Act 1969 (NSW) - Voyager/Melbourne collision)

LEGISLATION CITED : Limitation Act 1969 - ss 60G & 60I

BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443 CRA v Martignago (1996) NSWLR 13 Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) CASES CITED : Gretton v The Commonwealth [2005] NSWSC 437 Harris v Commercial Minerals Ltd (1995) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Sydney City Council v Zegarac (1998) 43 NSWLR 195

Errol Frederick Lymbery (Plaintiff) PARTIES : The Commonwealth of Australia (Defendant)

Mr J Sharpe (Plaintiff) COUNSEL : Mr C Barry QC with Mr I McLachlan (Defendant)

Ms S Adminis, Hollows, Melboure Vic SOLICITORS : (Plaintiff)

Ms D Robinson & Ms A Roins-Fisher, Australian Government Solcitors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20824/2001 - ERROL FREDERICK LYMBERY v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings, ss 60G and 60I Limitation Act 1969 (NSW) - Voyager/Melbourne collision) 1 MASTER: This is an application by Errol Frederick Lymbery for an extension of time within which to bring proceedings against the Commonwealth of Australia ("the Commonwealth") to recover damages between HMAS Melbourne and HMAS Voyager on 10 February 1964. The tragic events where the Voyager sank and 82 men aboard the Voyager lost their lives are well known. 2 The plaintiff relied on his affidavits sworn 8 November 2001 and 30 April 2004, the affidavit of David Brian Forster sworn 19 April 2004 and the affidavit of Sandra Adminis sworn 1 November 2004. The defendant relied on the affidavit of Gregory George Kathner affirmed 1 August 2003, two affidavits of Donna Anna Robinson sworn 2 September 2002, 1 November 2002, 1 December 2004 and 17 May 2005 and the affidavit of Alan Jeffrey Melrose sworn 18 June 2004. I carefully examined the plaintiff while he was being examined and cross-examined and formed the view that he was a truthful witness. 3 The plaintiff was 17 years of age when he joined the Navy on 9 February 1962 after seeing newspaper advertisements about a career for life. At the time of enlistment he was in good health physically and psychologically. Upon entry he passed medical and psychological tests. It was the plaintiff's intention to make a career in the Navy. At recruit school at HMAS Cerberus the plaintiff performed well. He played football and cricket and represented the Navy in interservice cricket as an all rounder. 4 On 26 June 1962 the plaintiff was drafted to HMAS Anzac for training purposes as an engineering mechanic. He worked in the boiler room, engine room and gear room as an engineering mechanic. On 30 October 1962 the plaintiff was drafted to HMAS Sydney where he trained as an engineering mechanic working on the double bottom party. Between 1962 and 1972 the plaintiff gained a number of qualifications. 5 At the time of the actual collision the plaintiff was off duty lying in his bunk in 3P stokers mess (port side 3rd deck down from the flight deck). It had a weather deck both forward and aft of the mess which was open to the sea. The ship was at flying stations doing night exercises. 6 The plaintiff felt a severe shudder through the ship and it felt as though the ship had run aground. He sat upright in his bunk and men started shouting that they had hit the Voyager. He ran to the forward weather deck and looked out the port side. The Voyager forward section was visible about 50 to 60 yards away on the port side. He heard men screaming for help on the Voyager and saw men in the water. The plaintiff felt helpless, as there was nothing he could do to assist them. He recalled seeing the forward part of the Voyager sink. People were shouting and running around. It was as if he was stuck to the spot and that time was moving very slowly. 7 The plaintiff cannot remember if he was given any orders to go anywhere and his memory is just in patches as to what happened from that time onwards. He recalls lifeboats being launched and seeing survivors being picked up. He stood on the weather deck looking over the side as the rescue effort progressed. The plaintiff later remembered being in the hangar and seeing some men who had been rescued. They were covered in oil and people were looking after them. After that he remembered being on the quarterdeck and seeing the aft section of the Voyager lit up by spotlights with the lifeboats rescuing more men. He does not remember anything after that night. The plaintiff does not remember sleeping that. He does not remember the trip back to Sydney Harbour or entering the harbour or the berthing of the ship. Nor does he remember anything that happened at Garden Island Dockyard. 8 The plaintiff's next recollection of events was a photograph of the Melbourne on the front page of a Sydney newspaper. The photograph [Ex A] showed the jagged bow section of the Melbourne sailing up Sydney Harbour. This image has haunted him ever since. His next recollection was being at Cockatoo Dock where the ship was being repaired. 9 On 2 June 1972 the plaintiff was discharged from the Navy.

The law 10 By s 14 of the Limitation Act 1969 (NSW) (the Act) a cause of action founded on tort, as this one is, is not maintainable if brought after the expiration of a period of six years running from the date on which the cause of action first accrued. The statement of claim was filed after the expiration of that period. 11 Section 60G of the Act empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". In such circumstances, the onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a) of the Act, it must be shown that it is just and reasonable to make an order. 12 The relevant provisions of s 60I of the Act 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)." 13 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii) thresholds.

Whether the plaintiff has proved that "he did not know that a personal injury had been suffered"; Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered"; Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 14 The defendant submitted that although the plaintiff had not put a label on all the symptoms, he knew he suffered from them and he was aware that he suffered personal injury. Further, as there was no significant change to these symptoms over the years, the plaintiff was aware of the extent of his injuries. The defendant submitted that the plaintiff knew that there was negligence or fault that caused the boats to collide, he was aware of the connection between the acts and omission and the collision. According to the defendant, the plaintiff has failed to pass through any of the threshold and if this be wrong, the plaintiff failed the objective test in s 60I(1)(b). 15 The defendant referred to Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443, Harris v Commercial Minerals Ltd (1995) 186 CLR 1 and CRA v Martignago (1996) NSWLR 13. 16 In 1962 when the plaintiff joined the Navy he was in good physical and psychological health except that he had skin rashes from time to time. He intended to follow a career in the Navy. Shortly after the collision the plaintiff started to have night sweats and flashbacks while he was sleeping. He would wake up in a sweat and sit upright in his bunk. The scenes of the collision, the bow section sinking, men screaming and the newspaper photo would flash before his eyes. Twice per week the plaintiff experienced flashbacks and they have continued at the same frequency to date. The plaintiff started waking between about 1.00am and 2.00am and found it very hard to get back to sleep. His sleep would be broken until about 5.00am. The plaintiff's interrupted sleep has continued to date. Shortly after the collision the plaintiff took up smoking but this habit discontinued in 1985. 17 Within months after the collision the plaintiff developed acid reflux and started taking Quickeze tablets to control the pain. Prior to the collision the plaintiff had suffered from of skin rashes but after the collision the skin rashes were aggravated. With the help of medicinal cream the skin rashes are kept under control. The plaintiff continues to get rashes from time to time but not as badly as before. 18 During 1965 and 1966 the plaintiff was promoted several times, up to Acting Petty Officer. During 1965/66 the plaintiff continued to have sleeping problems and hot sweats and flashbacks of the collision. The acid reflux worsened so he continued to eat Quickeze tablets. The skin rashes were kept under control with daily use of prescribed creams. 19 On 21 July 1968 the plaintiff was drafted to HMAS Sydney where he trained as an Engine Room Mechanician. He did six trips to Vietnam on the Sydney taking troops and equipments to the war zone. On 27 June 1969 the plaintiff was promoted to Mechanician First Class holding the rank of Chief Petty Officer. The plaintiff became increasingly disillusioned with the Navy and doubted his ability. His health problems did not improve and he decided to leave the Navy. He could not understand what was driving him in this direction. 20 On 24 January 1971 the plaintiff was posted to HMAS Cerberus to do the Chief Petty Officers course. It was here that he told the Officer in Charge to rescind his CW1 papers, as he was no longer interested in becoming an Officer. The papers were cancelled. On 24 May 1971 the plaintiff was posted to HMAS Melbourne for two months. In 1971 his health problems got worse and he found it very difficult to sleep at all. He decided not to continue with pursuing his career to become an Officer. 21 On 9 June 1972 the plaintiff was discharged from the Navy. At this time he was experiencing a range of health problems, continual hot flushes, flashbacks and problems sleeping. By this time the reflux caused him so much pain he would sit in a chair but vomiting only gave him slight relief. By now the plaintiff had become very isolated within the Navy and had few friends. This was in marked contrast to the way things had been before the collision. When the plaintiff left the Navy he was taking Quickeze tablets for the acid reflux. He did not do anything about the nightmares and flashbacks because he "just carried on, I never thought of doing it." [t 22.57]. 22 The plaintiff had employers since he left the Navy. His last employment was with BP Oil Refinery where he was promoted numerous times culminating in a senior position. In 1996 when the plaintiff was promoted to Senior Controller at the oil refinery, he broke down and cried in front of his wife as a result of the stress associated with his work and became jumpy if things went wrong. The stress came back on him and his past came back to haunt him [t 30]. The plaintiff knew that he had a range of medical problems. He sought medical advice about the rashes and reflux but did not seek medical advice from a psychologist until 2001. 23 In April 2000 the plaintiff received a telephone call from Vic Turton who was in 3P mess at the time of the collision. Mr Turton asked the plaintiff to be a witness in actions being taken against the Commonwealth government on behalf of those aboard the Melbourne when the collision occurred. Mr Turton talked to the plaintiff about post traumatic stress disorder (PTSD). The plaintiff replied that he did not have PTSD because he was not an alcoholic and did not beat his wife. Mr Turton told the plaintiff that he thought he (the plaintiff) had a number of other symptoms. This conversation made the plaintiff think about whether his sleep apnoea, gastric reflux and anxiety had anything to do with the Voyager collision. As at 2000, the reflux had improved and the rashes had also improved with the right sort of cream. However, the night sweats and very disturbed sleep patterns and that sort of thing remained the same. 24 In December 2000 the plaintiff contacted his solicitors. In February 2001 the plaintiff saw psychiatrists Dr Gelb for assessment (report, 9 February 2001) and Dr Gibson. In April 2001 the plaintiff saw Mr Binfield, a psychologist (report, 9 April 2001). Dr Gelb and Mr Binfield advised the plaintiff that he suffered from PTSD (P aff, 8 November 2001). It was when the plaintiff talked to Mr Binfield that he realised he suffered from PTSD and he appreciated that the physical and psychological symptoms that he had experienced after the collision were all connected with the collision. 25 Dr Glaser the plaintiff's treating psychiatrist (report 15 November 2001) opined: "In terms of his psychiatric state, he continues to suffer from a post-traumatic stress disorder which remains of mild to moderate severity. His current symptoms include nightmares, recurrent vivid and intrusive memories of the collision (as well as of the tarrying panic attack he experienced subsequently in Vietnamese waters), some concentration difficulties, sleep disturbance (with associated day-time fatigue), concentration difficulties, avoidance of anything to do with the Navy (loss of contact with navy mates, a reluctance to initiate a claim for possibly service-related conditions) and a general loss of self-confidence. As well, his ongoing somatic symptoms such as skin rashes, night sweats and reflux of his gullet are indicative of an ongoing high level of arousal and anxiety." 26 Undoubtedly, the plaintiff was aware of the symptoms from which he suffered since shortly after the collision. But he was not aware, nor did he know the extent that this involved a different level of cognition, that the condition of PTSD was the reason for or cause of those symptoms. The plaintiff did not realise that these diverse symptoms may have a psychological cause. Hence he did not seek the advice of a psychologist or psychiatrist until 2001. Because these symptoms were so diverse and included skin rashes, flashbacks, reflux and anxiety, it is my view that the plaintiff ought not to have become aware of any of the matters listed within s 60I(1)(a) at any time prior to 2000 when he had the conversation with Vic Turton. The notice of motion was filed on 10 October 2001 and thus falls within the threshold period.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 27 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. As previously stated, the defendant submitted that the plaintiff knew that there was negligence or fault that caused the boats to collide, he was aware of the connection between the acts and omission and the collision. 28 The plaintiff submitted that it was not until he read the statement of claim in 2001, 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. 29 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). 30 In paragraphs 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 maintain any or any adequate look out;

(o) Failing to ensure that Voyager and her equipment were in a seaworthy and safe condition;

(p) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe." 31 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. 32 It is true that the plaintiff knew that the collision occurred because the Navy was not doing its job properly hence it was negligent [t 15-16]. However, this general knowledge does not equate to knowledge of the specific particulars of negligence as set out in paragraphs 5 (a) to (p) of the statement of claim. 33 I accept that it was not until 2001 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. 34 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 35 The plaintiff relies on s 60G and s 60I (1)(a)(i)(iii) of the 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); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; 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 satisfying the relevant threshold requirements, it must be shown that in the circumstances it is just and reasonable to make an order. Because this court has found the plaintiff to be a truthful witness, the defendant does not submit that the plaintiff had no real case to advance but rather that it will not get a fair trial. 36 The principles concerning prejudice have been considered in Holt v Wynter in which the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 stated that the effect of the High Court decision in Taylor 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. 37 I accept that with the passing of 41 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 would 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. 38 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 (1996) 41 NSWLR 389. As McDougall J aptly stated in Gretton v The Commonwealth [2005] NSWSC 437 at [57] and [60] which I repeat: "57 The evidence shows that the Navy was aware by May 1964 of the existence, not just the likelihood, of psychological injury. The Commander of HMAS Sydney, to which ship many sailors from the Voyager had been posted, sent a signal requesting "psychological assessment of ex Voyager ratings". That request was refused: "I am directed to inform you that, while cases to the contrary have occurred, the Naval Board believe that the majority of sailors are sufficiently stable and temporally robust to be mentally unaffected by the experiences in HMAS Voyager and therefore they may not wish to be subjected to psychological assessment. ... To treat all the survivors as potential psychiatric cases might well imply ideas of such significance in minds hitherto free and it is therefore not intended to carry out a psychological assessment of survivors ex HMAS Voyager...".

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.

(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 10 October 2001.

(2) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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.