Mancer v Commonwealth of Australia

Mr M Joseph SC with Mr M Brabazon (Plaintiff) COUNSEL : Mr Morahan (Defendant) James Taylor & Co Myrtleford, Victoria SOLICITORS : (Plaintiff)

Mr C Ktenas Australian Government Solicitor CATCHWORDS : Extension of time to commence proceedings, s 60G and s 60I Limitation Act - Voyager/Melbourne ACTS CITED : Limitation Act 1969 (NSW) 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) The Commonwealth of Australia v McLean (1996) 41 NSWLR 393 Commonwealth of Australia v Dinnison (21995) 56 FCR 389 at p 402 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10 CASES CITED : Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Szerdahelyi v Bailey, Ortado v Bailey, Lewis v Bailey (NSWSC, unreported, Badgery-Parker, 1 May 1997) Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported, 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported, 6 November 1995) Lynch v Commonwealth of Australia (NSWSC, Master Harrison, unreported 16 October 1998) Parici v The Commonwealth of Australia (NSWSC, Master Harrison, unreported 14 April 1999) DECISION : See para 38

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21236/95 - MERVYN ARTHUR MANCER v THE COMMONWEALTH OF AUSTRALIA

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

1 MASTER: The plaintiff by notice of motion filed 6 December 1995 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 22 March 1999. The defendant did not rely on any affidavit evidence but opposed the orders sought. 2 The plaintiff was cross examined and he gave truthful evidence. For the purposes of this application I find the facts as follows. In doing so, I have taken the plaintiff's case at its highest. Should the matter go to trial some of these facts will be disputed.

(1) The plaintiff was born on 2 July 1933. He now resides in Western Australia. (2) On 10 April 1952 shortly before the plaintiff's 19th birthday he became a member of the Royal Australian Navy and enlisted for an initial period of 6 years to 9 April 1958. He was re-engaged on 8 May 1962 for a further period of 6 years. He was discharged from the Navy on 6 May 1968 with the rank of Petty Officer Cook. He was in good health both physically and psychologically. Copies of the medical examination records of 19 March 1952 (MAM 1), 26 February 1958 (MAM 2), 2 April 1962 (MAM 3), 30 January 1963 (MAM 4) and 2 April 1968 (MAM 5) confirms the state of his health. (3) On 10 February 1964 the plaintiff was a crew member of the aircraft carrier HMAS Melbourne. He was a Leading Officers Cook. On that day the Melbourne was involved in joint exercises with the destroyer HMAS Voyager. (4) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer HMAS Voyager at sea about 20 miles south east of Jervis Bay (the collision). Eighty two men from the Voyager lost their lives in the collision. (5) At the time of the collision the plaintiff was in the Vegetable Locker of the Wardroom Galley which was situated at 3 Port Aft. He was off duty and sitting down when he felt a violent jolt. The plaintiff was immediately overcome with the fear that the Melbourne was going to sink. He does not recall hearing any piped order. He hurried into a companion way and through an airlock into the aircraft hangar in 3 deck to the starboard side. He saw and heard what he later came to believe to be the stern end of the Voyager going down on the Melbourne's starboard side. The plaintiff heard a screeching, scraping noise as the Voyager passed down the side of the Melbourne. He could see the rear end of the Voyager scraping along side. He rushed through the hangar to the port side as he feared they would roll to starboard and he wanted to get to the high side of the ship to the Quarter Deck. There was great confusion and panic and the sound of screaming.

(6) When the plaintiff reached the Quarter Deck he saw the Voyager's bow on his port side. He realised that the Melbourne had cut the Voyager in two. He feared for the safety of his shipmates and friends. He watched as the bow sank about 200 metres away. He heard the screaming and cries for help.

(7) The plaintiff stood stunned and shocked as he was a cook and was not trained in rescue. However he had been a surf life saver at North Steyne. He looked over the Melbourne deck into the water on the port side and saw a raft that had been thrown from the Flight deck. He went over the side of the Melbourne into the water on a rope and halfway down he let go of the rope and dropped into the sea. He swam around and eventually he was able to lash 3 rafts together. All of the time that he was in the water he was terrified that he would be taken by a shark. Someone threw a whaler oar which was about 15 foot long. The plaintiff got into the lead raft and was joined by 2 other ratings who clambered into the raft. They then swam to the raft and paddled it towards the Voyager about 200 yards away. The plaintiff feared for the lives of his shipmates and he could still hear screaming and cries for help.

(8) They pulled aboard 4 survivors who were swimming in the water. Another person was too shocked and injured to swim, so the plaintiff dived back into the water and brought him onto the raft. He remembers going to the castle on the port side just aft of the main castle. He saw a crushed body near the bridge and he froze with horror. He dived back into the water and swam to the side of the rafts. He heard a man screaming in the water and saw him about 20 yards away at the rear end of the Voyager. It appeared that he was unable to swim and was lying half on his back in the water. The plaintiff swam to him and yelled out "come over here there's a raft". The plaintiff pulled him over to the raft and by this stage there were more people in the 3 rafts and there appeared to be about 3 or 4 people in each raft. The survivors were then placed into a cutter and the plaintiff got onto a cutter as well and was taken to the Melbourne. They were then all taken to the main galley. The plaintiff was exhausted having been in the water for a period of 2 hours. The Chief Cook said "What's your act, trying to make out you're a survivor". The plaintiff said nothing. He thought he must have been in the water for one and half to two hours and was exhausted. He stayed with the survivors and looked for his friends.

(9) The plaintiff recalled that at about 2 or 3.00 am he was sitting on the starboard when the Admiral Barge came along side with what appeared to be two bodies on top of the cabin. He did not see them come aboard but just pull along side. He was dazed and disorientated and then he heard that the Voyager stern was sinking and he looked up and saw the stern go down. He knew about 20 sailors on the Voyager. On the trip back to Sydney the plaintiff asked different people who were on the Voyager about the fate of some of his friends but no-one knew. He knew however that he had lost a lot of friends and ultimately ascertained that some of his mates had died.

(10) Between 1965 to 1968 the plaintiff had a shore posting at Balmoral. He feared going back to sea. He had lost all trust in the Navy personnel and after the collision he began drinking heavily to try and get to sleep at night and blot the memories out of his mind. He was promoted to Petty Officer.

(11) At the end of 1968 when it was time to renew his service with the Navy he refused. He was too scared to go back to sea. The plaintiff ceased drinking alcohol when he left the Navy.

(12) From 10 February 1964 to the present time he has suffered from flashbacks and he hears the scraping noise of the Voyager going down the side of the Melbourne. The plaintiff now lives near the beach but is not able to go anywhere near it. Whenever the plaintiff was ashore whilst still serving on the Melbourne he would drink himself senseless. Prior to the collision he was a very fit man and very sports orientated. He did not drink except for the occasional beer. After the collision he began drinking spirits and would get drunk at every opportunity. On one occasion as a Petty Officer of HMAS Penguin he was bar manager and he closed the bar down and drank himself to sleep.

(13) After the collision the plaintiff became withdrawn and distrustful of people and this still remains the situation today. He also has become argumentative and withdrawn. He is unable to sleep because of the memories of the night of the collision. He feels guilty that he was part of the crew of the Melbourne and feels he caused the death of his friends.

(14) After the collision he lost interest in the Navy and all the other activities he used to pursue including his work. His concentration deteriorated; he feels that his life is worthless and he has no enthusiasm. Sometimes he hears noises that remind him of the collision and he becomes very anxious. Sometimes he is fearful of going to sleep because he fears nightmares that he will experience of ships colliding and of falling into a big black hole. He has experienced depression. The plaintiff has had multiple relationships and 3 marriages which were not sustained because after the collision he became domineering and aggressive and irritable. He also attributed his failure in 9 businesses to the fact that he is difficult to work with.

(15) The above symptoms he experienced became normal to him. He did not perceive that there was anything wrong with himself. He was aware that he was having problems at various times but he thought he could cope with these normally. He increased his alcohol and cigarette consumption to help calm his nerves.

(16) Mrs M A Morgan who was the plaintiff's wife at the time of the collision has stated that after the accident the plaintiff's cigarette smoking increased dramatically and this was due to stress. The plaintiff ceased smoking on his 50th birthday, namely 2 July 1980.

(17) In about April 1995 the plaintiff was watching television when someone was being interviewed who has a Post Traumatic Stress Disorder (PTSD) and that person had a history of symptoms similar to those that the plaintiff has experienced and still experiences. The plaintiff's current partner watched the program and said to the plaintiff "That is your problem. I think you should look further into it." The plaintiff then approached the RSL who referred him to Paul O'Keefe a Veteran's adviser. Mr O'Keefe advised the plaintiff to obtain a referral to Dr Kemp and to see a solicitor.

(18) On about 2 May 1995 the plaintiff was referred by his general practitioner Dr Anthony Higham to Dr John Kemp a psychiatrist. At the conclusion of that interview Dr Kemp informed the plaintiff that he was suffering from PTSD. The plaintiff discussed his problems with the doctor including the problems that he had previously with alcohol and smoking. The plaintiff did not know until Dr Kemp explained to him that he was suffering from a psychiatric illness or disability.

(19) On 29 November 1995 the statement of claim was filed.

(20) On 8 December 1995 the notice of motion seeking an extension of the limitation period was filed.

(21) In December 1995 the plaintiff found that he was having some difficulty breathing and was experiencing wheezing. As a consequence of these symptoms, he was referred to Dr A R Adams a respiratory diseases specialist. The plaintiff consulted Dr Adams in April 1996 or sometime shortly thereafter and it was then that he was first informed that he had emphysema which was caused or greatly contributed to by his smoking.

(22) In early November 1995 the plaintiff consulted his general practitioner concerning bowel problems that he was then experiencing. Shortly thereafter he was seen by a gastro-enterologist and he thinks that it was some time in early 1996 that he underwent exploratory surgery to determine the cause of his bowel problems. The plaintiff was informed that he had an irritable bowel syndrome. It was not until about July 1996 that the plaintiff first became aware or was informed that his irritable bowel syndrome was contributed to by his PTSD.

(23) Around July 1997 the plaintiff was informed by either Dr Kemp or his solicitor James Taylor that his PTSD caused his dramatic increase in alcohol and tobacco consumption as a means of self-medication and that the dramatic increase in tobacco consumption was a cause of his emphysema. Prior to him being informed he did not know that as a consequence of the collision and his consequential suffering of PTSD his increased tobacco intake had caused his emphysema.

(24) Since his discharge from the Navy the plaintiff has had 9 failed businesses. However over the last 20 years the plaintiff has been employed on and off as a vacuum cleaner salesman. For a few years he was a very successful salesman whereas in other years he barely made a living. Had it not been for the collision, the plaintiff intended to be employed by the Navy for a period of 30 years.

(25) On 27 October 1995 the Department of Defence accepted the plaintiff's claim for compensation in relation to PTSD arising from the Voyager collision. On 18 March 1996 the Department of Defence accepted the plaintiff's claim for compensation for irritable bowel syndrome arising from the Voyager collision.

The Law 3 The plaintiff relies on s 60G of the Act. The approach to be adopted in dealing with applications for the extension of limitation periods, is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) and The Commonwealth of Australia v McLean (1996) 41 NSWLR 393. The onus rests with the applicant. In relation to ss 60G and 60I(1)(a) as to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 4 I turn now to ss 60G and 60I(1)(a) which are in subdivision (3) of the Act. The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but "also (by the operation of Schedule 5) for causes of action that accrued before that date" (s 60F). 5 Schedule 5 provides by clause 4(1) that: "Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…"; 6 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action: "…if an application for such order is made within: (a) the period of three years referred to in s 60I; or (b) the period of three years commencing 1 September 1990." 7 The application to extend time was made on 8 August 1996 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be "within the period of three years referred to in s 60I". 8 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". 9 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)." 10 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(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 6 December 1992. 11 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 6 December 1992); 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). 12 The plaintiff relies on s 60I(1)(a)(i) and (ii) in relation to three injuries namely firstly, PTSD which caused his dramatic increase in alcohol and tobacco consumption, secondly, emphysema and thirdly irritable bowel syndrome. The plaintiff also relies on s 60I(1)(a)(iii).

(i) Whether the plaintiff has proved that he "did not know that personal injury had been suffered " 13 Prior to the expiration of the limitation period, the plaintiff knew that he suffered from flashbacks and heard noises that remind him of the collision and he becomes anxious. He is fearful of water. He had increased his alcohol and tobacco consumption. He had become withdrawn, distrustful, domineering, aggressive and irritable. He feared sleep because of the likelihood of nightmares of ships colliding. He knew that he had been depressed and that the onset of his depression did not occur recently but rather was of a longstanding nature. Nevertheless, although he was aware of these symptoms at various times he thought that they were normal and that he could cope with them. He did not perceive that there was anything wrong with himself. He did not recall that he suffered from these problems as a teenager. 14 As was stated in the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (at p 402 per Gummow and Cooper JJ) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. I accept that it was not until 2 May 1995 that the plaintiff first became aware that he suffered from a diagnosable psychiatric illness namely PTSD. He was previously aware that he suffered from depression but thought that it was normal. It is my view that it was only when the plaintiff became aware that he suffered a diagnosable psychiatric illness that he knew that he suffered a personal injury. The plaintiff has passed through the s 60I(1)(a)(i) gateway. (ii) Whether the plaintiff has proved that he was "unaware of the nature and extent of the personal injury suffered " 15 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 (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a disease of gradual onset.

16 The nature and extent of the injury which the plaintiff has sustained is to be determined as an objective fact as at the date of the hearing of the application. A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. In particular if the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expects, the applicant will be aware of the extent of the injury (Harris pp 13 and 14). 17 As previously stated, prior to the expiration of the limitation period, the plaintiff knew that he suffered from flashbacks and heard noises that remind him of the collision and he becomes anxious. He became fearful of water. He had increased his alcohol and tobacco consumption. He had became withdrawn, distrustful, domineering, aggressive and irritable. He feared sleep because of the likelihood of nightmares of ships colliding. He knew that he had been depressed and this depression did not come on recently. Nevertheless, although he was aware of these symptoms at various time he thought that they were normal and he could cope with them. 18 On about 2 May 1995 the plaintiff became aware that he suffered from PTSD, a diagnosable psychiatric illness. In April 1996 the plaintiff became aware that he has emphysema which was caused or greatly contributed to by his smoking. In July 1996 the plaintiff became aware that he suffered from irritable bowel syndrome and that the syndrome was contributed to by his PTSD. In July 1997 the plaintiff was informed that as a consequence of the collision he suffered PTSD. To self medicate he increased his tobacco intake and this caused his emphysema. The plaintiff was unaware of the nature or extent of his injuries until July 1997. 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 " 19 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. 20 The plaintiff submitted that it was not until he read the statement of claim 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. 21 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, will be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain NSWCA, Gleeson CJ, unreported 22 August 1995). 22 In paragraph 5(a) 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; (m) Failing to give right of way to Melbourne; (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. 23 Similarly, there are particulars of negligence given in relation to the officers of the HMAS Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. 24 I accept that it was not until 1995 when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant's acts and 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. 25 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 26 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 her 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 (unreported, NSWCA, 26 February 1998) and 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)). 27 The plaintiff was employed by the defendant. The defendant as an employer had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his experience of being on board the Melbourne when it was hit by the Voyager he suffered PTSD, excessive alcohol and tobacco consumption, emphysema and irritable bowel syndrome. There is medical evidence to support that the plaintiff suffers from these disorders which can be attributed to the collision - see McLean. There is evidence that had he not been involved in the collision he would have continued with his career in the Navy for at least 30 years. The plaintiff has had 9 business failures but has also worked on and off during the last 20 years as a vacuum cleaner salesman and for a few of those years he achieved high sales. There is medical evidence that the plaintiff is currently unfit for work due to his psychiatric injury. In a medical report there is a reference that the plaintiff's father was an alcoholic so the cause of the plaintiff's excessive alcohol consumption will be an issue at the trial. There is evidence to establish that the plaintiff has a real cause of action to advance. 28 I turn now to Taylor's case. In Taylor McHugh J at pages 8 and 9 referred to the effects of delay in the now often quoted passage which states: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period." 29 and at page 11: "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it." 30 Dawson J, in Taylor said at page 2: "The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation." 31 McHugh J at p 10 continued: "The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." 32 In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. 33 Mason P analysed the views of the Judges of the High Court in Taylor's case. The President quoted the passage by McHugh J which begins "Legislatures enact" and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh J appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. Mason P then referred to the following statement by Toohey and Gummow JJ (in their joint judgment) at page 7: "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 34 Mason P perceived that there may be a distinction between the notion of "significant prejudice" and the notion that delay makes "the chances of a fair trial unlikely". In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendants would suffer "significant prejudice". 35 I accept that with the passing of 35 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. Indisputably there is presumptive prejudice. 36 Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. There are Navy records from the plaintiff's initial engagement in 1950 to April 1968 showing that at the time the plaintiff joined the Navy and throughout his period of service in the Navy he was in good physical and psychological health. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean; Lynch v The Commonwealth of Australia and Parici v The Commonwealth of Australia (Master Harrison, NSWSC unreported 16 October 1998 and 14 April 1999 respectively). There are also decisions in relation to extension of time of the limitation period for Voyager/Melbourne claims by Master Malpass. In the case before me, there are more recent medical records of Drs Kemp, Adams, Higham, Philpott and Professor Burvill. The plaintiff's first wife is available to give evidence concerning the plaintiff's consumption of tobacco before and after the collision. The plaintiff's brother is also available to give evidence. 37 After I have taken into account all of these matters, I am not satisfied that the "chances of the defendant obtaining a fair trial is unlikely" nor am I satisfied that the defendant will suffer "significant prejudice". 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. The appropriate order for costs is that costs be costs in the cause. 38 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 6 December 1995.

(2) Cost be costs in the cause. **********

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