Norman v Commonwealth of Australia

Norman v Commonwealth of Australia - [2000] NSWSC 931 - NSWSC 2000 case summary — Zoe

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(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 20 March 1993. 6 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 20 March 1993); 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). 7 The plaintiff relied on s 60I (1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until 1 February 1996. 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 in 1996. 8 The defendant submitted that the plaintiff knew within the limitation period that he suffered from the symptoms of PTSD. The defendant also submitted that the plaintiff knew he suffered a personal injury, the nature or extent of his injury and the connection between the personal injury within the limitation period. The defendant submitted that the plaintiff's back injury made him unable to work since 1990. (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 9 Prior to the collision the plaintiff had been in good physical and psychological health. Prior to the expiration of the limitation period the plaintiff knew that he suffered from depression, loss of confidence, nightmares, flashback, night sweats and fast heartbeat. He developed a fear of heights and the sea. He knew he was irritable and argumentative but he thought that this was normal and he was coping. After the collision the plaintiff took up drinking an excessive amount of alcohol to calm himself down. 10 However, any knowledge the plaintiff acquired when completing this claim was acquired within the time period stipulated by s 60I(1)(b). 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. It was in February 1996 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. It is my view that the plaintiff did not become aware that he suffered a personal injury until the term PTSD was explained to him by Dr Wu in February 1996. The plaintiff has passed through the s 60I(1)(a)(i) gateway.

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(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission " 15 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 16 The plaintiff submitted that it was not until he read the statement of claim in 1996, 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. 17 The defendant submitted that because the plaintiff knew shortly after the collision that there had been a "stuff up" caused by the Navy in the guise of the Commonwealth, he was aware of the connection between the personal injury and the defendant's acts or omissions. 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 Board 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; (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. 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. The plaintiff was not cross examined on this issue. 21 I accept that it was not until 1996 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.

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Just and reasonable 23 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. 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 (NSWCA, unreported 26 February 1998); 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 did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff 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 being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. However, an issue at trial will be to what extent his physical and psychiatric injuries reduced his ability to work. 26 I turn now to Taylor's case. In Taylor McHugh J 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. Second, 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. Third, 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." 27 and; "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.

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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." 28 Dawson J, in Taylor said at page 2: "The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant." 29 and; "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." 30 He continues: "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 an extension." 31 In Zegarac the Court of Appeal considered the effects 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. 32 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 and McHugh JJ appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. 33 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms. "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 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 36 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. 36 The defendant did not put on any evidence to actual prejudice. Dr Wu has died but his report may, at the discretion of the trial judge be admitted into evidence. The defendant has had the plaintiff examined by two psychiatrists, Dr Ewer and Dr Phillips in relation to these proceedings. Dr Phillips' report has not been served.

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