Philippe v The Commonwealth of Australia

Mr M Joseph SC (Plaintiff) COUNSEL : Mr T J Morahan (Defendant) James Taylor & Co Myrtleford Victoria (Plaintiff) SOLICITORS : Mr Con Ktenas Australian Government Solicitor (Defendant) CATCHWORDS : Extension of time to commence proceedings; Ss 60G and 60 I Limitation Act; Voyag/Melbourne collision ACTS CITED : Limitation Act 1969 (NSW) Commonwealth of Austalia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139ALR 1 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1997) 14 NSWLR 389 CASES CITED : Szerdahelyi v Bailey Ortado v Bailey Lewis v Bailey (all NSWSC, unreported Badgery-Parker 1 May 1999) Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998) Dow Corning Australia Pty Limited v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 Novrember 1995) McLean v The Commonwealth of Australia (1996-97) 41 NSWLR 389 Lynch v The Commonwealth of Australia (NSWSC, unreported 16 October 1998 Master Harrison) DECISION : See para 37

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20397/98 - PETER JOFFRE PHILIPPE v THE COMMONWEALTH OF AUSTRALIA

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

1 MASTER: The plaintiff by notice of motion filed 26 October 1998 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 relied on the affidavit of Con Ktenas affirmed on 12 November 1999. The defendant opposes the orders sought. 2 I observed the plaintiff carefully when he gave evidence and was cross-examined. I formed the opinion that he was giving truthful evidence and I accept it.

3 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 13 November 1945 and is 54 years of age. He resides in the State of Victoria.

(2) On 7 January 1962 the plaintiff became a member of the Royal Australian Navy as a recruit. He was then aged 16 years. He enlisted for an initial period of 12 years and looked forward to making the Navy his career for the next 30 years.

(3) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision. Five of the plaintiff's friends died as a result of the collision. Two of those were his closest friends. Of the fourteen recruits he had entered the Navy with he was the only survivor.

(4) At the time of the collision the plaintiff was standing outside of 3 Delta Starboard Mess. He felt a thump and ran to the side of the ship. The plaintiff saw the stern of the Voyager off the starboard side of the Melbourne. He heard a call to emergency stations and was ordered to the hangar to assist in laying out the stretchers for the injured survivors. He was ordered to take an audit of survivors including their names and addresses, ranks and serial numbers. He went from one survivor to the next taking their particulars. He saw some men in a state of panic, some with terrible injuries and in complete fear and shock and covered in oil. He continued taking the particulars of the survivors until the early hours of the morning. All of the time he was looking for his friends. As the morning wore on he became more and more distressed and anxious as he had not been able to find them. He realised that his best friends were dead and he broke down and cried.

(5) On arriving back in Sydney the plaintiff was given shore leave. He went to a hotel and got drunk. He had not drunk alcohol prior to the collision. During his stay in Sydney he was the subject of abuse and insults by the general public and on one occasion he was spat at. In February 1964 when the plaintiff was at the bar of a hotel in Sydney he just exploded and threw chairs and tables around the room and the police were called. Ever since the collision he has drunk heavily in order to try to sleep and forget the memories of the night of the collision. He took up drinking and smoking to try to calm his nerves. He became edgy and anxious and was argumentative with his friends and with his workmates.

(6) In about April 1964 the plaintiff began to gamble. He would place bets with an SP bookie who was on board the ship. He became a compulsive gambler and this continues to the present day.

(7) The plaintiff served on the Melbourne up until 13 December 1964. From 14 December 1964 until 25 August 1965 he was posted to HMAS Cerberus which is a shore base. On 26 August 1965 until 15 December 1968 the plaintiff served at HMAS Lonsdale. This also was a shore posting. At HMAS Lonsdale he had a high pressure job processing 230 officers' pay and leave entitlements. For some months he worked from 8.00 am to 2 or 3 o'clock the next morning.

(8) On 16 December 1968 the plaintiff was posted to HMAS Sydney and as soon as he was informed that this would be a sea posting he became anxious and fearful. He dreaded the thought of the sea posting. He did however for a period attempt to carry on with his duties whilst on the HMAS Sydney but became more irritable and nervy, and his behaviour was causing difficulty with his friends around him. He felt depressed, became aggressive and argumentative. He was insubordinate and his confidence in the Navy had plummeted even further. He was sent to see several doctors but was not aware that they were psychiatrist. He was sent to hospital at HMAS Penguin. As a consequence of his behaviour he was posted to HMAS Kimbla.

(9) In April or May 1970 the plaintiff was sent to the HMAS Cerberus. He recalls that he was anxious and depressed. He was a leading writer and refused to carry out his duties. He had to undergo medical examinations but was not told what was wrong with him. The plaintiff knew that he felt depressed and unable to cope with his work but did not know why. He did not think that he had a psychiatric illness.

(10) On 11 March 1971 the plaintiff was honourably discharged from the Navy. He had attained the rank of Leading Writer.

(11) The outpatient records of the Navy show that in 1970 the plaintiff was diagnosed as suffering from an anxiety state and was placed on medication. He was treated by Mr N Issakidis a psychologist and Dr John McGeorge a psychiatrist who has since died, and Dr W S Reynolds a consultant psychiatrist on a number of occasions. The plaintiff says that he had not seen a copy of these psychological records until he swore his affidavit. He had not seen any of his service records, including his service medical records, until March or April of 1998. When he first read these records he was shocked by some of the details, particularly those relating to his psychiatric state. None of the psychiatric details contained in the medical records have ever been related to the plaintiff. He had no idea of the contents of his medical file. He was never told that he suffered a psychiatric disorder. He said that the Navy had kept him completely and utterly in the dark as to his psychiatric health prior to his discharge. He knew that he had been put on tablets when he was at HMAS Penguin but was never told what his condition was or why he had to see the doctors. He thought that he suffered from nervous tension due to work.

(11) Since the plaintiff's discharge from the Navy he has had 27 different jobs. He was unemployed from October 1998 until October 1999. He is currently working for the Grey Army.

(13) In about August 1997 the plaintiff read an article in a newspaper concerning the collision and broke down. Although his wife suggested he see a doctor he saw a solicitor, Mr David Foster in Melbourne. Later in 1997 he consulted his current solicitor.

(14) In November 1997 the plaintiff saw Dr Knox. At the conclusion of the interview Dr Knox informed the plaintiff that he was suffering from Post Traumatic Stress Disorder (PTSD) and told the plaintiff that his problem with alcoholism was a consequence of his stress disorder. The plaintiff did not know until Dr Knox explained to him that he was suffering from a psychiatric illness or disability.

(15) After being examined by Dr Knox the plaintiff had some understanding of the effects that the collision had had on his life. He says that he has mood swings, cannot sleep without the lights on, cannot sleep in his own house by himself as he feels unsafe and frightened, is unable to socialise properly, avoids anything which will remind him of the collision, has nightmares and panic attacks, he has lost confidence and self-esteem and is a compulsive gambler. He is fearful when swimming, going on planes and going aboard ships. He has difficulty undergoing psychiatric treatment. On two occasions namely, in October 1998 and February 1999 he broke down and cried during the consultation and walked out.

(16) Until the plaintiff read the statement of claim in 1998 he had no knowledge of any acts of negligence of the defendant, and he did not know that the acts of negligence caused his psychiatric damage.

(17) On 14 October 1998 the statement of claim was filed.

(18) On 26 October 1998 the notice of motion seeking as extension of the limitation period was filed.

The Law 4 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". 5 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)." 6 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 26 October 1995. 7 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 26 October 1995); 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). 8 The plaintiff relies 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 November 1997 and did not know of the connection between the personal injury and the defendant's act or omissions until he read the statement of claim in 1998. The defendant did not make any submissions in relation to s 60I. (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 9 Prior to the expiration of the limitation period the plaintiff knew that he suffered from a nervous disorder due to work. He knew that he was anxious, depressed, aggressive and unable to cope with work. His level of confident had plummeted. He drank alcohol to excess and took up gambling. He did not know that he suffered from a psychiatric illness. 10 After leaving the Navy until 1997 the plaintiff had never sought medical advice in relation to his psychiatric state. 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. In November 1997 the plaintiff was told by a psychiatrist, Dr Knox that he suffered from PTSD and this was caused by the collision. I accept that the plaintiff was not aware that he suffered a personal injury until November 1997. 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 or extent of the personal injury suffered " 11 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. 12 The nature or 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). I have referred to the state of the plaintiff's knowledge prior to the expiration of the limitation period under the heading s 60I(1)(a)(i). 13 For the reasons given under s 60I(1)(a)(i) it is my view that the plaintiff did not know the nature or extent of his personal injury until November 1997 when he knew that he had a diagnosable psychiatric illness. 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 " 14 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. 15 The plaintiff submitted that it was not until he read the statement of claim in 1998 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. 16 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). 17 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. 18 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. 19 I accept that it was not until 1998 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. 20 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 21 I turn now to consider whether it is just and reasonable to extend the limitation period. 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 (1997) 14 NSWLR p 389. 22 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) 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). 23 The defendant did not make any submissions on this issue. 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 experience of being on board the Melbourne when it was hit by the Voyager he suffered PTSD. There is medical evidence to support this claim. There is evidence from the plaintiff 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 27 jobs since discharge from the Navy. There is evidence to establish that the plaintiff has a real case to advance. 24 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." 25 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.

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." 26 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." 27 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." 28 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." 29 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. 30 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. 31 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." 32 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". 33 The defendant referred to specific matters which it submitted caused it actual prejudice. It submitted that it is prejudiced to such an extent that it will not be able to obtain a fair trial. The specific matters are that firstly, on 17 December 1998 the plaintiff's Department of Defence files numbered 1/93563 (Service Details) and 21/28/1631 (Service Details - Repatriation) were destroyed in accordance with approved National Archives procedures and secondly, that Dr John McGeorge a psychiatrist has since died. Dr McGeorge treated the plaintiff and noticed a change in his personality. The plaintiff's solicitor produced a copy of the plaintiff's records of service card and computer historical records which show the details of the plaintiff's service with the Royal Australian Navy (Ex A). These documents were forwarded to the plaintiff's solicitor by the Defence Personnel Executive by letter dated 26 May 1998. The plaintiff's statement of claim was filed and presumably served on or about 14 October 1998. Yet the Department of Defence destroyed the plaintiff's records on 17 December 1998 which was a few months after the statement of claim had been served. If a defendant choses to destroy its own records when it is on notice that a claim is lodged it is difficult to see how they can assert that they are prejudiced. While Dr McGeorge cannot give evidence, the medical records which still exist may be tendered into evidence. Other doctors including another psychiatrist namely Dr Reynolds treated the plaintiff during his period of service in the Navy. 34 The defendant has admitted the collision but denied it was negligent. As I have previously stated 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 and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 35 Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. There are Navy records showing that at the time that when the plaintiff joined the Navy he was in good physical and psychological health. There is documentary evidence of the plaintiff's psychiatric state during his period of service in the Navy. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean v The Commonwealth of Australia (1996-97) 41 NSWLR 389 and Lynch v The Commonwealth of Australia (NSWSC, unreported 16 October 1998, Master Harrison). There are also decisions in relation to extension of time of the limitation period for Voyager/Melbourne claims by Master Malpass. 36 After I have taken into account all of these matters, I am not satisfied that the "chances of the defendant obtaining a fair trial iare 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. 37 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 14 October 1998.

(2) Costs are costs in the cause. **********

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