Quirke v Commonwealth of Australia

PARTIES : John Phillip Quirke (Plaintiff) Commonwealth of Australia (Defendant)

COUNSEL : A G Mellick SC with K Sant (Plaintiff) R E Williams QC with I S McLachlan (Defendant)

SOLICITORS : Sachs Gerace Lawyers (Plaintiff) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

20074 of 1999 John Phillip Quirke v Commonwealth of Australia

JUDGMENT Introduction 1 The plaintiff makes an application for an extension of time within which to commence proceedings against the defendant pursuant to s 60G of the Limitation Act 1969 ("the Act"). The application raises for consideration, among other things, the question of whether or not the plaintiff has satisfied the Court of the matters referred to in s 60I(1)(b) of the Act. Section 60I is in the following terms: " 60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision. Background 2 The plaintiff was born on 18 December 1942 in New Zealand. He is now 65 years of age. He became a member of the Royal Australian Navy on 25 August 1963 when he was accepted as a junior recruit and posted to HMAS Cerberus. He served as a member of the Royal Australian Navy for a period of 255 days until his discharge with the rank of Ordinary Seaman on 5 May 1964. 3 On 23 November 1963 the plaintiff was transferred to the aircraft carrier HMAS Melbourne performing deck hand and cleaning duties. By 10 February 1964 the plaintiff was 21 years old and had been a crewmember of the Melbourne as an Ordinary Seaman for only a few weeks. On that date the plaintiff was aboard the Melbourne when it collided with HMAS Voyager on the high seas south east of Jervis Bay. The Voyager was sunk and 82 men were killed. 4 On 10 February 1964 the plaintiff was serving the last day of a seven-day confinement as punishment for having been absent without leave ("AWL") on 2 February 1964, and returning to the Melbourne drunk. The plaintiff said that he was released from the brig at about 8.30pm on that day, approximately half an hour before the collision. He said that when the collision occurred he was packing up his gear in the brig to return to the mess and was standing only a few metres away from where the Voyager penetrated the Melbourne's forequarters. As the ships collided he heard a loud crunching sound and felt the Melbourne lurch forward. He said he did not know what was happening and saw the bulkheads collapsing. 5 The plaintiff said that he ran to the upper deck and saw smoke and sparks on the side of the ship. He felt frightened and panicky, but started helping with the rescue effort straight away. He helped to throw scramble nets over the side of the Melbourne and then went back to the mess deck to try to find bedding and clothes for the survivors from the Voyager. During the night he also helped shore up the Melbourne's bow. He was part of a team passing down timbers from above. At the suggestion of one of the Petty Officers he returned to the brig several hours later to see that the cell he had been occupying had been completely crushed. He said that if he had still been inside the cell at the time of the collision he would have been killed. 6 He returned to the upper deck. He could see a man in the water who appeared to be in difficulty. A helicopter was hovering overhead, lowering a ladder to the man. He shouted out to the man to grab the ladder but he did not seem to be able to do that and he disappeared under the water. Later the plaintiff watched with others as the Voyager sank. He felt sad and dazed about what had happened. He tried to continue on with his job. He did not sleep at all that night. 7 Three of the plaintiff's friends were lost in the collision. He had trained with each of these men on HMAS Cerberus. 8 The following day a memorial service was held on the Melbourne's flight deck for those who were killed during the collision. About this time the plaintiff was ordered not to speak about what had occurred. The plaintiff said that he did not feel like talking about the collision anyway. 9 The Melbourne then returned to dry dock in Sydney for repairs. Everyone was granted shore leave and told to "go ashore, get drunk, shut your mouths, and get on with it" or words to that effect. The plaintiff remembers being abused by civilians. When he went ashore he tried not to talk about the collision, even when people asked him about it, because he never knew whether or not he might be speaking to someone who had lost a relative or friend. He went with a group of sailors from the Melbourne to a hotel and got very drunk. He does not remember much of that night. 10 The plaintiff stayed on the Melbourne while it was being repaired in Sydney. Even though he was feeling a bit shaky after the collision he still wanted to be in the Navy and was not afraid of returning to sea. 11 Not long after his arrival in Sydney, a newspaper report was published about a prisoner who was aboard the Melbourne on the night of the collision. A journalist had seen a shirt hanging from the Melbourne's damaged bow near the point of impact and had asked the Melbourne's officers who it had belonged to. The plaintiff thought that there were at least two newspapers that published articles about this. The articles referred to a prisoner in the brig who had been released from his cell just before the collision. The plaintiff gave evidence that, in his view, the newspaper articles related to him even though he was not named personally and had not spoken to any journalists about it. 12 During the time that the Melbourne was in dry dock the plaintiff was punished on several occasions for leaving the ship without permission and returning drunk. On 27 February 1964 his rating was reduced to Second Class as a result of going AWL on 15 and 16 February 1964. On 19 March 1964 the plaintiff was committed to 42 days of detention for insubordination and drunkenness on 14 and 15 March 1964. 13 On 5 May 1964 the plaintiff was discharged from the Navy. He said that this was most likely for disciplinary reasons but his superiors never gave him any clear reason. The plaintiff said that he was broken hearted about being discharged from the Navy because he had always thought he would be in the Navy for life. He felt ashamed that he had only remained in the Navy for a short time. 14 At par 23 of his affidavit sworn 18 July 2003, the plaintiff said that after the collision he had trouble sleeping and kept having nightmares. In particular, he had a reoccurring nightmare about seeing a sailor disappear under water after being unable to grab the ladder from a helicopter overhead. He was very irritable and moody. Images of the collision and the rescue attempts kept coming back to him, particularly watching the sailor drowning. Even though he tried to forget them he said he was very jumpy and easily startled by loud noises. He said, "I would drink heavily on and off in an attempt to forget about the collision." Sometimes the plaintiff would go without a drink for two or three weeks but then would go on a drinking binge for a few weeks and become drunk every night. The plaintiff said that he had started drinking prior to joining the Navy from the age of about 16 but after the collision began to do so more heavily. During his drinking binges he would drink continuously for hours or sometimes days. For a few months after the collision he smoked very heavily, probably averaging two or three packs a day. His smoking returned to the normal rate of about 20 cigarettes a day by around four or five months following the collision. 15 Following his discharge from the Navy the plaintiff had no money and was at a loss to know what to do. He spent about a month in Sydney at a rigging job to get enough money to return to New Zealand where his family lived. He then did some shearing and fencing work for about a year in New Zealand. He did some plumbing work for Brian Milson in Lower Hutt, and in early 1966 worked for Paulson & Sligo, plumbing contractors in Gisborne for about three months. On 4 October 1966 the plaintiff enlisted with the New Zealand Army and served with it until 12 January 1970 when he was voluntarily discharged. The plaintiff was married in March 1967. 16 Shortly after joining the New Zealand Army the plaintiff was posted to Malaya and then later flown to Singapore. One day in 1968 the plaintiff was sightseeing with several other soldiers in the port and saw several Navy ships docked. Without warning, the plaintiff suddenly was unable to control his emotions and broke down. His friends took him to the British Military Hospital in Singapore where he was sedated. During his hospital stay the plaintiff had trouble sleeping again and continued to suffer from nightmares of the sailor drowning. He would burst into tears easily and was very anxious and jumpy. The plaintiff did not know what the cause of his uncontrollable emotions was and the doctors did not give him any explanation for it other than that he was probably suffering from stress and too much drinking. At that time the plaintiff did not connect his breakdown with the collision but now, in hindsight, he believes it was probably associated with it. He did not tell the doctors about his nightmares as they were the same nightmares he had suffered for a number of years. Much of his weeklong stay in hospital was spent playing cards and trying to relax. He was discharged from hospital a week later by which time he felt much better. The plaintiff was only sedated for the first couple of days and was not required to attend any follow-up psychological consultations after that incident. 17 During his time in the New Zealand Army the plaintiff was disciplined for several minor offences. For the most part these related to insubordination or drunkenness. 18 In about 1969 the plaintiff was posted back to New Zealand. In January 1970 the plaintiff applied for, and was granted, a voluntary discharge from the army. One of his daughters had been born deaf and needed to attend a special school in Fielding. The plaintiff requested a discharge so that his family could move closer to the school. Another of his daughters was also born deaf and she later attended that school as well. 19 After leaving the army the plaintiff went to work for Don Allan plumbing in Fielding. In about 1973 he commenced employment with Blain Building Company, travelling around New Zealand doing bridge building work. He worked there for about three years. In about 1976 the plaintiff took a plumbing job with Borthwicks Freezing Works in Fielding for about two years. In about 1978 the plaintiff returned to Blain Building Company for another three years and then in about 1981 started doing plumbing work for the Palmerston North Hospital Board. The plaintiff worked at the hospital for about three years and then in about 1984 started working at Wormald Sprinklers Ltd assisting with sprinkler installation. In about 1986 the plaintiff commenced employment with Kevin Trew Plumbing and in about 1989 went to work at Crown Meats Abattoirs in Fielding doing maintenance work. He worked there for about four years and in about 1993 went back to Blain Building Company doing pile driving. In 1997-98 the plaintiff worked for Bryan Perry Ltd doing pile driving and then in early 1999 started working for Downer Construction Ltd as a crane operator on the construction of the local prison. In mid-1999 the plaintiff commenced work for Trev's Plumbing Ltd in Fielding as a plumber. Since 2002 the plaintiff has been unemployed receiving no social security benefits. He is currently supported by his wife and is assisting his son to renovate his house. 20 In late 1985 or early 1986 the plaintiff's wife took action in an attempt to curb his drinking problems as this was placing a strain on his marriage. She applied to the court and the plaintiff was ordered to attend the Bridge Programme for addiction rehabilitation run by the Salvation Army in Wellington. The plaintiff said that he did not know the basis for his wife's ability to bring the matter before the court but he did know that it was not prompted by any violence or criminal activity on his part. His doctors gave evidence to the court about his drinking problems. The plaintiff only stayed at the programme for approximately three days during which time he became frustrated with it. The plaintiff left the programme early and was not required by the court to return as he had found employment in the meantime. 21 The plaintiff said that up until about five years ago he had suffered from nightmares of the collision about once every two or three months, particularly the dream where he watched the sailor drowning. Sometimes he still gets very anxious for no particular reason. He occasionally has flashbacks of the collision but this usually occurs if something reminds him about it or if he has been talking about it. 22 Most of the plaintiff's relatives and friends in New Zealand knew that he had been aboard the Melbourne at the time of the collision, as it was widely reported in the New Zealand papers. It was, however, not a topic of conversation that he raised with anyone he knew. Occasionally people would try to grill him for information when they learnt he had been aboard the Melbourne. The plaintiff said that he tried to avoid such conversations or change the topic because he did not like speaking about it. It seemed to the plaintiff as though these people wanted information about the collision for their own entertainment. The plaintiff said he felt as though he was being disrespectful talking about an incident in which so many men had died. 23 The plaintiff did not keep in contact with any of his friends from the Navy although he often thought about trying to find them again. Approximately six years ago Tony Brittain contacted him. They had served on the Melbourne together and were both aboard it on the night of the collision. The plaintiff had not seen Mr Brittain in almost 35 years. After talking to him about the collision the plaintiff said he started to feel much better. He felt as though a weight had been lifted from him. Since that time the plaintiff's nightmares and flashbacks have been far less frequent. 24 Mr Brittain referred the plaintiff to his solicitor in about November 1998. The solicitor, Mr Taylor, suggested that the plaintiff might have suffered Post Traumatic Stress Disorder or other psychiatric injuries as a result of the collision. The plaintiff said that he had previously heard about PTSD, but did not understand what it was. Mr Taylor told the plaintiff that he might have a claim for compensation in relation to the collision. On 25 February 1999, Mr Taylor issued a Notice of Motion and Statement of Claim on the plaintiff's behalf in relation to injuries suffered by him as a result of the collision. 25 On 18 February 2003 Mr Taylor arranged an appointment for the plaintiff with Dr Brendan Holwill, a psychiatrist. Dr Holwill prepared a report saying that the plaintiff was suffering from PTSD. Until his appointment with Dr Holwill the plaintiff did not understand how PTSD was affecting him. The plaintiff said that he still has difficulty understanding what the psychiatric terms mean. 26 The plaintiff still suffers from nightmares and flashbacks of the collision on an intermittent basis. He still becomes anxious and tense when reminded of the collision. The plaintiff has continued to drink regularly, consuming approximately 20 cans of full strength beer per week. He smokes approximately one packet of tobacco each week. 27 The plaintiff's overall physical health has generally been good in the years since the collision, aside from some industrial deafness and glaucoma in both eyes. He occasionally suffers from chest problems such as congestion, which he attributed to his smoking. He has had several work-related injuries including back problems and injuries to his fingers and left knee. The plaintiff has never received any psychiatric treatment apart from that to which Dr Holwill's report dated 18 February 2003 refers. 28 The plaintiff and his wife are still together. They have five children (four daughters and a son), currently aged between 28 and 36. At times the plaintiff's drinking problems and mood swings have placed a strain on the marriage and he has taken jobs which have required him to move away from the home for a period in order to try to relieve some of the tension. Generally he has a good relationship with his wife and each of his children. The plaintiff's mother died about 20 years ago from a heart attack and his father died about 20 years ago from cancer. He has not kept in contact with his brother but occasionally speaks with his sister who lives in the South Island of New Zealand. The plaintiff's other sister died when she was 23. 29 The plaintiff said that he had no knowledge of any negligent acts or omissions of the defendant until he first read the statement of claim in this matter in February 1999. The plaintiff said that until he read the statement of claim he had not known that the negligent acts or omissions had caused his psychiatric condition. Issues in dispute 30 The defendant made no submissions on the matters to which s 60I(1)(a) refers. The defendant in fact conceded that, for the purposes of the present application, it was not able to overcome the significance and effect of the plaintiff's evidence that he did not know that personal injury had been suffered so that the first limb of s 60I(1) had been satisfied. The issues therefore became first, whether the application had been made within three years after the plaintiff became aware or ought to have become aware of the three matters listed in par (a)(i)-(iii), and secondly whether the application ought to be refused having regard to the prejudice to the defendant occasioned by the plaintiff's delay. Section 60I(1)(b) 31 In Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325; Basten JA commented upon the normative element of the paragraph in the following terms: "[30] Paragraph (b) requires the Court to be satisfied that the application to extend time was brought within three years of the date when the plaintiff became aware "or ought to have become aware" of the relevant matters specified in paragraph (a). Thus, even if the date of actual awareness falls within the three year period, the Court is required to consider whether the plaintiff ought to have become aware of the last of the relevant matters at a date prior to the commencement of that period.

[31] It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed in relation to this issue) adopted a concept of "constructive knowledge", as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530:

'In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out.'

This approach was quoted with approval by Santow JA (Handley JA agreeing) in Commonwealth of Australia v Smith [2005] NSWCA 478 at [103]; cf [182]-[187]". 32 In Shaw's case the plaintiff suffered from alcoholism. The circumstances of that case were not dissimilar to the present. His Honour continued with the following remarks: "[71] Taking the medical condition as alcoholism, a description which he applied to himself, the question is whether he "ought" to have sought medical assistance for the condition before 1999. The question is not asked in some general moral sense, in terms such as 'he owed it to himself' or 'he owed it to his family' but in the sense of whether, not having sought medical help before 1999, he should now be allowed to claim that his medical condition was caused by the Commonwealth.

[72] A second, and perhaps subsidiary question, is whether, had he sought medical help at an earlier time, his condition would have been diagnosed as involving a mental disorder attributable to the collision. It would appear, for example, that at least two psychiatrists who saw him while he was in the Navy, and who suspected dependence on alcohol, gave no consideration to such a possibility. Why that might have been was not addressed in the argument or in the evidence. One cause might have been a lack of familiarity of the signs and symptoms of what is now known as post-traumatic stress disorder, during the 1960s and 1970s. On the one hand, it may perhaps be assumed that any such lack of familiarity would have evaporated long before 1999. On the other hand, had he sought such assistance, he might have received the response given by Dr Yvonne Skinner, in her report of 15 August 2005, namely that it is not "possible to establish a diagnosis of post-traumatic stress disorder" on the materials which were available to her. Although she did not have the benefit of a consultation with Mr Shaw, nor of Dr Hopwood's report, she did have the benefit of notes taken by Dr Hopwood for the purposes of his consultation.

[73] There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne / Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result, but that, where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome. No attempt was made in the present proceedings to approach the matter in that way. Accordingly, the trial judge not having addressed the issues under par (b), it is necessary to reach a judgment on the material presented.

[74] In my view the plaintiff ought, for the purposes of par (b), to have sought medical advice at an earlier stage and, if he had done so, it is likely that he would have become aware of the nature and extent of his illness and its connection with the collision at sea. There are four factors which, cumulatively, lead me to that conclusion. First, it seems not to be in doubt from his own evidence that he was aware of suffering from some form of psychological disorder: see his evidence set out in part at [50] and [51] above. This was not a case in which he was completely unaware of having a problem. Indeed, the primary judge was not satisfied that he was unaware of suffering an injury of a relevant kind. That he did not wish to be told to stop drinking is understandable, but it does not follow that he should now be entitled to bring proceedings to recover financial compensation in respect of the cause of his psychological disorders". 33 It was submitted on behalf of the defendant that the plaintiff changed his evidence following the decision in Shaw's case in order to avoid the unfavourable consequences that it would create for his own case. Attention was drawn to pars [5] to [8] of the plaintiff's affidavit sworn 13 March 2007, which were in the following terms: "[5] At the time my wife got a court order and even after having treatment, I did not think I had a drinking problem, although others obviously thought so. I had the treatment because I felt I had no choice. I now understand my wife was right but I did not know that at the time.

[6] The reason for my drinking was also unknown to me at the time. I never told my wife or anybody else the reasons for the drinking because I never knew myself. It was only when I saw Dr Brendan Holwill that I understood what PTSD was or I had any insight into the cause of my drinking. Before that time I really did not know.

[7] I did not associate my nightmares or occasional flashbacks with the amount that I drank.

[8] I refer to paragraph 23 of my affidavit dated 18 July 2003 where I said that after the collision I would drink heavily on and off in an attempt to forget about it. It was my belief at the time of swearing the affidavit that my drinking was to suppress thoughts of the collision and was my way of dealing with how I felt. That remains my belief to this day. However, I did not consciously think at that time that I should get drunk in order to try and forget about the collision and I did not understand at the time that was what I was doing. I only gained that insight after speaking to Dr Holwill about PTSD." 34 The contrast between what the plaintiff said in par 23 of his affidavit sworn 18 July 2003 and the material set forth in the preceding paragraphs is obvious. Indeed, there is an internal inconsistency in par [8] itself in as much as the words, "It was my belief at the time of swearing the affidavit that my drinking was to suppress thoughts of the collision and was my way of dealing with how I felt" appear clearly to contradict the words, "I did not consciously think at that time that I should get drunk in order to try and forget about the collision and I did not understand at the time that was what I was doing". 35 The defendant also drew attention to certain paragraphs of the plaintiff's affidavit sworn 5 February 2008. Paragraphs [2] to [4] of that affidavit are as follows: "[2] I refer to paragraph 26 of my affidavit sworn on 18 July 2003. I was in a hospital in Singapore for about a week and was sedated when I first arrived. The only time I saw a doctor was when I was admitted. We only had a very short conversation. He probably asked me something like, "what is the matter?" I couldn't answer because I did not know. I was pretty incoherent at the time. I was not drunk or anything but I was a bit of a mess. The doctor was a British military officer. He did not say what he thought the matter was and I was not told I had a psychiatric illness or needed any psychiatric treatment. At the time of swearing my affidavit sworn on 18 July 2003, I made the assumption that at the time of my admission in 1968 I was probably suffering from stress and too much drinking but I cannot recall [being] told that at the time. At the time, I knew I had been drinking a lot in the few days beforehand but I didn't really think the booze was causing any problems. Looking back, I think it did. After my admission, I only saw male nurses. Mainly, they just let me rest. There [were] no consultations with anyone and no meeting in groups. Everyone kind of took it easy and read books. No one said I had a psychiatric problem or a drinking problem. No one suggested I had problems related to the collision and I certainly did not think it had anything to do with it. I did have dreams about the fellow drowning but I had had them before and didn't think anything of it.

[3] I refer to paragraph 30 of my previous affidavit sworn 18 July 2003. Annexed hereto and marked JPQ-1 is a letter from the Bridge programme confirming I was a resident of that programme in late 1985. Before my wife took out the court order, I had been on a bit of a drinking binge. I was helping out a mate who owned a pub who was short staffed. I would stay on after it closed and get on the grog for hours. I often got quite drunk and got home at 3.00am. I usually drove and was able to get there myself but I don't think it would have been good if I had been caught.

[4] I did not think I was doing any harm and didn't think I had a problem. I probably thought that I drank too much at times but I didn't think I had a drinking problem I couldn't handle myself. I thought the thing with staying back at the pub was pretty trivial. I was really uptight and annoyed about it. It seemed like a bit of a conspiracy between the lawyers and my wife. I did not stick around the programme for long. They had lectures but I only went to one and then refused to go to any others. To be honest I thought it was a load of bollocks because they had kids a third of my age speaking. I don't recall ever seeing a doctor in there and I was not told I had a psychiatric illness. When I left, I still did not think I had a drinking problem. I went back to work and got on with my life. I could have handled it without that." 36 The defendant submitted that I should have regard to the evidence in the first affidavit as being the plaintiff's position and should not be prepared to accept the modifications and changes in emphasis proffered by him in the third and fourth affidavits. The defendant also drew attention to the plaintiff's first psychiatric examination and to the reports of Professor McFarlane upon which the plaintiff relied. The question becomes whether or not the plaintiff "for the purposes of par (b), [ought] to have sought medical advice at an earlier stage and, if he had done so, [whether or not] it is likely that he would have become aware of the nature and extent of his illness and its connection with the collision at sea": see Shaw (supra) per Basten JA at par [74]. 37 The defendant argued that the plaintiff ought to have sought medical advice for alcoholism or in relation to what was his excessive alcohol consumption at an earlier stage and that if he had done so he would have become aware of the nature and extent of his psychiatric illness and of its connection to the collision. The factors that suggest this were: 37.1 The plaintiff's conviction for offences whilst in the New Zealand Army.

37.2 The circumstances following his hospitalisation when he was again, according to the evidence, offending and being dealt with by the authorities for offences relating to alcohol.

37.3 His admitted convictions on at least three occasions for offences relating to driving under the influence.

37.4 The urging of his wife to do so at some time between when he was discharged from the army and 1985, when she finally took the steps she took.

37.5 His committal in 1985 to the Bridge Programme by a judge in New Zealand. 38 The defendant submitted that the plaintiff ought to have sought medical advice at one or all of those stages. If he had done so, on the evidence to be gleaned from the plaintiff's first affidavit, it is more than likely that he would have become aware of the nature and extent of his particular illness. If the plaintiff had been asked at this time, or at any of these times, what was wrong, the first affidavit suggests that the answer would have been either first, that he was having terrible nightmares and waking up distressed with images confronting him, that he was suffering from flashbacks and that he drank both to try to do something about the sleep disturbance that this was causing, or secondly that he was trying to avoid the thoughts that were intruding into his mind. 39 These considerations also arose in Shaw (supra). Basten JA dealt with them at pars [59] ff. For example: " Application of par (b)

[59] On the basis that the plaintiff lacked a relevant level of awareness of the extent of his injuries (and possibly their connection with the collision) the next relevant issue is whether he ought to have had that level of awareness. As already noted, there is some artificiality in seeking to separate the normative questions raised by this provision from the "just and reasonable" test to be applied in the exercise of the discretion to extend time. Nevertheless, the factors relevant to par (b) are more discrete and should therefore be dealt with separately.

[60] The first question is whether the failure of the plaintiff to seek professional advice, prior to 1999, which should have revealed the relevant facts prevents satisfaction of par (b). One consideration relevant to that question is whether the conduct of the Commonwealth dissuaded him from taking that course …

[62] A second possible reason for not taking earlier steps to apprise himself of his medical needs and possible legal entitlements may be found in the psychiatric illness about which he complains. Thus, failure to talk about the traumatic event may be either a symptom or a result of post-traumatic stress disorder. The policy underlying paragraph (b) would not be furthered by the exclusion of plaintiffs on the ground that they have not taken relevant steps in their own self-interest, where the injury itself may be a significant cause of the failure to take such steps.

[63] Nevertheless, it is necessary to draw a distinction between such a factor and a more general reluctance to seek medical advice, either because the person would prefer to turn a blind eye to the possibility of illness or because of a fear that the treatment will be worse than the illness."

40 The defendant submitted that I should reject the plaintiff's assertion, contained in his third affidavit, that he did not know, or did not understand, why he was drinking. Put shortly, if the plaintiff can now shift his case to assert that he did not know why he was drinking, then plainly a most significant part of his primary case, and that of his history to the psychiatrist, falls to the ground. This is because the plaintiff claims in the first affidavit that he suffered from nightmares, flashbacks and intrusive thoughts from the time of the collision until at least the 1990s and that he drank both to assist him in sleeping in order to avoid the distress of waking up with nightmares and also to help him overcome the memory of these events which kept intruding into his life. 41 The defendant contended that I should reject the plaintiff's attempt to distance himself from those assertions by what is suggested to be an almost illogical proposition contended for in the third affidavit, that he didn't understand why he was drinking. The defendant submitted that the two versions could not rationally stand side by side. The first version should be accepted as the correct position. 42 If the plaintiff had taken up, on the urgings of his wife, or the judge, or his doctor, or if he had embraced the offer of rehabilitation and counselling and medical assistance at the Bridge Programme, as he ought reasonably to have done, then it is more than likely that he would have given an account as to why he was drinking (if the version in his first affidavit is correct), and the true position would have been explained to him. 43 It is significant that the plaintiff's alcohol abuse was immediately apparent to Professor McFarlane. For example, Professor McFarlane speaks in his second report of the plaintiff's "degree of distress and his abuse of alcohol" and refers to the fact that the plaintiff's "misuse of alcohol came to the attention of the authorities in the New Zealand Army". Referring to his admission to an alcohol treatment centre, Professor McFarlane said at page 17 of his second report that the plaintiff "was aware that he had a problem with alcohol abuse but made no link between this problem and his other symptoms with the … collision". 44 Professor McFarlane was asked what factors, if any, would have prevented the plaintiff from seeking medical treatment for PTSD, assuming that his wife had recommended that he do so. At page 18 of his second report, Professor McFarlane responded as follows: "His wife did resort to extreme lengths in having an administrative order raised against [him] so as to have his alcohol abuse treated. In the absence of any psychological insight into the fact that he was ill, it is improbable that he would have sought care. Hence, the way in which an individual's symptoms detected are explained and the way he is introduced to the idea of treatment, is critical as to whether he would have found access to care. It appears that the urgings from his wife did not lead to an appropriate assessment which detected his condition and as a consequence, further urging would have been to little avail. Once his circumstances were explained, accepting that it was in the setting of compensation, [he] did pursue this option." 45 Professor McFarlane was then asked whether the plaintiff should have "sought out" medical treatment in those circumstances. His response was as follows: "In my view, an individual whose behaviour or distress causes sufficient concern to a spouse such that they recommend that he seek medical assistance, some obligation is placed upon that individual out of concern for that relationship. However, one of the difficulties is that post-traumatic stress disorder often goes undiagnosed in general practice settings, so that his decision to seek care would not necessarily have been met with the offer of such treatment. Again, these matters are further addressed in my previous report." 46 Professor McFarlane was subsequently requested to clarify the use of the term "alcohol abuse" as used by him on page 17 of his second report. He said this: "In that section of the report I was referring to [the plaintiff's] admission to a treatment centre and I stated that he was aware that he had a problem with alcohol abuse. In particular, my usage of language was to state that he was aware that he was drinking too much. I did not use the term " alcohol abuse " implying that [he] knew that he had a medical condition.

One of the difficulties in defining alcohol abuse in a layperson's mind as a medical condition is that alcohol consumption represents a continuum. The exact cut-off as to what represents a disorder or excessive consumption is not easily defined. Similar issues exist in medicine in defining the margins of a disorder such as hypertension. The divisions that are chosen along physiological parameters are to a degree arbitrary. In this way, [the plaintiff] saw his problem as being more of one of his behaviour rather than him having a medical condition." 47 When the plaintiff saw Dr Holwill on 18 February 2003, it would appear that he gave a history that included the following: "[The plaintiff] started drinking alcohol at about aged [sic] 16. He was drinking episodically, usually on weekends, following sporting events. He would often become drunk at those times. He continued that pattern in the Navy, drinking his daily ration, but drinking heavily on leave and this gave rise to a number of disciplinary problems. After leaving the Navy he has continued to drink regularly and for many years has consumed about 20 cans of full strength beer per week. He denied any forensic history associated with this." 48 Later, Dr Holwill made the following comments: "Immediately following the collision, he had symptoms of acute post-traumatic stress disorder, characterised by intermittent nightmares, intrusive thoughts, startle response, hypervigilance, subjective tension and irritability. At that time, he continued a pre-existing pattern of intermittent heavy drinking." 49 Finally, Dr Holwill said the following: "Thus, I would conclude that he did suffer acute post-traumatic stress disorder following the collision and there was a recurrence of this whilst he was serving in the Army and stationed in Singapore, but since that time he has had relatively low-grade symptoms which have now abated with the passage of time, and quite minimal symptoms. [The plaintiff] has a long history of regular alcohol use, there was a pattern of intermittent heavy binge drinking prior to his naval service and following the collision with HMAS Voyager, but in recent years he has consumed a regular and moderate amount of alcohol on a daily basis. Similarly, there is a pattern of long-standing relatively heavy tobacco consumption . . .

Overall, [the plaintiff's] symptoms have caused intermittent significant distress to him, but in the main he has been subject to relatively mild symptoms and for the past five years only slight psychiatric symptomatology, as a result of his experiences aboard HMAS Melbourne." 50 The plaintiff was extensively cross-examined about this as well. What he said needs to be compared to the material to which he deposed in his affidavits. The evidence became important and it is necessary to record at least the following excerpts: "Q. You claim that after the collision you commenced to drink heavily? A. Yes.

Q. And that was, you say, I suggest to you, that was in order to forget about the collision? A. And it made sleeping easier.

Q. It might have, but you drink heavily after the collision was in an attempt to forget about the collision, I suggest you claim? A. I don't know if that was the reason.

Q. Well, what I suggest to you, Mr Quirke, is when you swore your first affidavit which was in July 2003, you claimed that you would drink heavily on and off in an attempt to forget about the collision? A. It would help.

Q. Help you forget about the collision, is that what you accept? A. Yes.

Q. You accept that you commenced to drink heavily on and off after the collision in order to help you forget about the collision? A. Yes.

Q. The trouble you had with sleeping was due to the nightmares I suppose, was it? A. Yes.

Q. They would wake you up? A. Yes.

Q. And that is when you would, as I think you told Dr Holwill wake up in a distressed state because it would-- A. Yes.

Q. There was no doubt in your mind that the flashbacks that you were having related to the collision? A. Yes.

Q. And no doubt in your mind that the intrusive thoughts related to the collision? A. Yes.

Q. Because they were about the collision? A. Yes.

Q. Or about the aftermath? A. Yes.

Q. I suggest, Mr Quirke, you would have become aware within a few months of the February 1964 collision that something had happened to you? A. No.

Q. No? A. No. *****

Q. During all that time, Mr Quirke, your case is that you were drinking heavily to forget about the collision? A. It had gotten to be a habit, yeah.

Q. Yes, it may become a habit you were drinking constantly in order to forget about the collision? A. I was drinking constantly not always for that reason.

Q. Often for that reason? A. Yes.

Q. And drinking constantly, and heavily in order to try to help your sleep that was being interrupted by the distress of the nightmares? A. Yes.

Q. Did you not come to understand that you had a problem? A. No.

Q. Did you think it was normal? A. I expected other people to be going through the same thing.

Q. You used to avoid thinking or talking about the collision didn't you? A. Yes.

Q. Why was that? A. I didn't like to be reminded of it, to even talk about it.

Q. Well, if you were talking about it or thinking about it, it would sometimes bring back intrusive thoughts and memories? A. Yes.

Q. That's what you say isn't it? A. Yes.

Q. When did you come to realise that you were increasing your alcohol intake from what it had been before 1964? A. I think before the incident it was weekends and after sports matches, not in great quantities.

Q. When did you come to realise after February 1964 that your alcohol consumption was increasing at a considerable rate? A. Well, I was getting drunk pretty regular and drinking a lot more.

Q. And the alcohol consumption I think you would accept you knew was down to the problems you were having with the collision? A. Yes.

Q. Did you come to realise you had a problem with alcohol? A. No, I didn't think so.

Q. Have you ever thought you've had a problem with alcohol? A. I didn't, no.

Q. What about when you were admitted to the British Hospital in Singapore in 1968? A. '68, yeah.

Q. Did you think by then you had a problem with alcohol? A. No.

Q. Do you recall being hospitalised in Singapore? A. Yes.

Q. You understood at the time you were hospitalised that, or at least you thought, that it was associated with your excessive drinking? A. No.

Q. Didn't you think that by 1968 you had a problem with drinking? A. No, I didn't.

Q. Did you not consider the significance of being hospitalised for a week in Singapore on account of what you considered excessive drinking to be a problem-- A. No. All I thought was that we were on leave for a week and I went on a binge for a couple of days and I think that was what caused it.

Q. Being on a binge caused you to be hospitalised for a week? A. Well, when I collapsed I was actually saved it was the day after.

Q. But you attributed it at the time, you say, to Dr Holwill, I suggest, your admission into hospital down to your excessive drinking? A. That's all I could put it down to.

Q. Did you not consider in 1968 that the excessive drinking was a problem for you? A. No.

Q. You had been in the New Zealand Army I think from the previous 18 months? A. Yes.

Q. By the time you were hospitalised in Singapore you had been convicted of several offences relating to alcohol had you not? A. Yes.

Q. And being intoxicated when you're on duty? A. Yes.

Q. You didn't consider that those convictions-- A. No.

Q. --in the course of your - wait until I finish the question Mr Quirke. You didn't consider that those convictions during the course of your service in the New Zealand Army were indicative of a problem you had? A. I didn't think it was a problem. I knew it was related but I thought I could handle it.

              Q. Just pausing there for a moment you didn't understand that you had an alcohol problem at that time Mr Quirke?
              A. No.

Q. Notwithstanding the convictions in the New Zealand Army? A. I still didn't think I had a problem.

Q. Notwithstanding the binge drinking? A. Yes.

Q. Was it your understanding that the binge drinking had led at least in part to your collapse and your admission to the British Hospital? A. Yes.

Q. You said, I am going back to the affidavit now, the paragraph if we keep reading it: "I felt much better by the time they discharged me and believed the problem had been fixed by having a weeks rest." Do you say that? A. Yes.

Q. What problem are you referring to? A. I just I perhaps thought I needed a rest.

Q. Are you saying that at the time you thought your problem was due to the fact that you needed a rest? A. I thought it was just drinking too much.

Q. And you continued to run into trouble with the authorities in the New Zealand Army? A. Yes.

Q. In connection with alcohol? A. Yes.

Q. And those problems, the clashes with the authority in the New Zealand Army, included continuing to be caught out consuming alcohol when you're on duty? A. Yes.

Q. And being intoxicated-- A. Yes.

Q. --on duty. And you knew shortly after your discharge from hospital, that is the British Hospital, you were aware of the fact that you were continuing to use alcohol to attempt to cope with your sleeping problems and your intrusive thoughts? A. Yes.

Q. The problems for you in terms of alcohol consumption continued after you left the New Zealand Army in, I think, about 1970? A . Correct .

Q. Right up until 1985 when your wife obtained a court order in relation to your alcohol consumption, that's right isn't it? A. Yes.

Q. Before that, before that 1985 application by your wife and for many years your drinking and mood swings as a result of your drinking had put a lot of strain on your marriage had they not? A . Correct.

Q. You knew at least by 1985, if not earlier, that the drinking was a real problem for you in relation to your marriage and your relationship with your wife? A. I didn't consider it to be a problem.

Q. You didn't consider it a problem that your drinking was putting strain on your marriage? A. I realised that.

Q. Yes. Did you not think that was a problem for you? A. No, I didn't, no.

Q. What about the drinking causing mood swings causing problems with your relationship? That is, I suggest Mr Quirke, would have alerted you to the fact that you had a problem with drinking? A. I didn't class it as a problem I just thought I could handle anything that came.

Q. Mr Quirke, I don't want to embarrass you about these matters but there were run-ins with the police after your discharge from the Army, were there not? A. Yes.

Q. I don't suggest to you that we have all the records, but three driving under the influence charges? A. Yes.

Q. When did the first of those occur? A. I think they would be mid '65, somewhere around there.

Q. We've got three, I think three, offences took place after you left the Army would that be correct? A. I can't recall the exact dates, I think one was mid '65.

Q. We don't have the dates either Mr Quirke, but after the first time you were arrested for driving under the influence did you not consider that you had a problem with consumption? A. No.

Q. What about after the second arrest? A. I thought bad luck.

Q. What about after the third time you were arrested? A. Bad luck again. I didn't consider it a problem.

Q. Very well. The fourth time? I can't put to you there was a fourth time, I suggest to you there were three occasions after 1970 when you were charged with driving under the influence. A. I don't recall dates.

Q. In 1985, the period we have been referring to your wife - I'm sorry, I'll withdraw that and start again. Before 1985 your wife had for a number of years been urging you to do something about your drinking problems had she not? A. Not urging me, just telling me not to come home drunk too often.

Q. Mr Quirke, I suggest to you she was doing more than that, I suggest that she was for a number of years before 1985 seeking to have you reduce the amount of alcohol you were consuming? A. I don't recall her doing that.

Q. I suggest that she informed you that your alcohol consumption was putting a strain on your marriage? A. I don't recall that either.

Q. Do you deny that she said that that she was saying that to you in the years before 1985? A. I can't recall her saying that to me.

Q. I suggest that she was in the years before 1985 complaining to you that your alcohol consumption was reducing the amount of money available to the family? A. The money that would have come up somewhere.

Q. I suggest to you that she was in the period before 1985 explaining to you about your mood swings when you were affected by alcohol? A. I can't recall exactly.

Q. Did you ever discuss with your wife in the period before 1985 why you were drinking? A. No.

Q. Did you tell her about your nightmares and-- A. No.

Q. --waking up in the night? A. No.

Q. The need to take alcohol to help you sleep? A. Never told her anything.

Q. You had sought no assistance in relation to your drinking up until August 1985 had you? A . I didn't seek it.

Q. Your wife made an application to court in New Zealand in August 1985? A. Yes. Q. … In the application to the Court you know that she asserted that you were spending long hours at the hotel? A. Yes.

Q. Arriving home drunk in the early hours of the morning? A. Yes.

Q. Spending all your money on drink? A. A lot of it.

Q. Providing insufficient or nothing in the way of moneys for the household to pay the bills and the food and what have you costs? A. Yes.

Q. You refused to undergo an examination, I suggest? A. Yes.

Q . And then was compelled to do so by order of the Court? A. Yes.

Q. And you were examined by two doctors, including I don't expect you to remember, a Dr Paul Alexander Monroe? A. I remember Dr Monroe.

Q. Why do you remember Dr Monroe? A. He was our family--

Q. A doctor you would go do for the usual run of the mill GP visits? A. Yes.

Q. You told Dr Monroe in the course of that examination that you had been a heavy drinker all your life? A. I don't recall that.

Q. I suggest that you told him you had been a heavily drink all your life and you had been excessively drinking over the last three months, that is prior to September 1985 when you saw them? A. I can't remember seeing them. I was in a bit of a bad way when I was taken to the doctors.

Q. Was it a fact that you were a heavily drinking all your life? A. My adult life not all my life.

Q. We'll come back to that later Mr Quirke, you had been a drinker for some years before you joined the Royal Australian Navy hadn't you? A. No.

Q. You know that a warrant was - withdraw that. On 17 September a judge in New Zealand ordered that you be detained for treatment? A. Yes.

Q. And you were detained I think overnight at a hospital in New Zealand the name of which I can't tell you at the moment, do you recall the name of the hospital? A. Lake Alice and then Wellington.

Q. That's right, you were detained in Lake Alice? A. One night at Lake Alice and--

Q. Thank you, and then you were transferred to The Bridge, and The Bridge was a unit operated by the Salvation Army? A. Yes.

Q. In Wellington was it not? A. Yes.

Q. A unit designed to treat and hopefully rehabilitate persons suffering from addiction? A. Yes.

Q. Principally alcohol addiction? A. Yes .

Q. You absconded from The Bridge did you not? A. Yes.

Q. You were rearrested by the New Zealand Police, correct? A. Yes.

Q. Brought before the Court? A. Yes.

Q. And when you were before the Court on the second occasion you were able to demonstrate you obtained a job and you made various promises to keeping the job and in relation to handing over your salary to your wife so that she would have money to do with it what she needed re- the household bills? A. Yes.

Q. You promised to stay on the straight and narrow? A. Yes.

Q. Have I got that right more or less? A. Yes.

Q. How long were you in the unit called The Bridge? A. From memory three days, may have been five.

Q. You were ordered to be detained for treatment at The Bridge, do you recall for how long? A. Six months.

Q. What did you tell the counsellors and staff at The Bridge about your drinking? A. I didn't have anything to do with them, I ignored them.

Q. Did that ignoring of the counsellors continue up until the time that you were absconded? A. Yes.

Q. And after you returned to the workplace and the Court released you from its previous order? A. Yes.

Q. Within a short time you would accept, would you not, that your problems continued, that is the nightmares? A. Yes.

Q. The intrusive thoughts, correct? A. Yes.

Q. And the drinking to cope with it all? A. Yes.

Q. And what did you do about it, go and get help? A. I didn't think I needed help.

Q. Well, your wife thought you needed help? A. She did, I didn't.

Q. The judge thought you needed help? A. I presume she was going on the ammunition supplied.

Q. The doctors thought you needed help? A. One I didn't even know and he didn't know me.

Q. We should perhaps deal with that, we spoke of Dr Monroe but you saw two doctors pursuant to the Court order on 17 September, that is the two doctors on 17 September 1985 pursuant to the Court order? A. Yes.

Q. But you say you didn't know the second doctor? A. I didn't know the second doctor at all.

Q. You're in no doubt that two both doctors urged you to seek help? A. No.

Q. What do you say Dr Monroe-- A. The police took me to see both doctors. Dr Monroe just signed a piece of paper and more or less saying I needed something. I never saw anything.

Q. The people at The Bridge who saw you who you ignored, you understood were seeking to offer you help? A. I don't know I'm not--

Q. What did you think you were there for? A. I presumed the fact that being there wasn't my choice.

Q. You understood you were there because some persons felt you needed assistance with your alcohol consumption, the state of your alcohol consumption? A. Yes, but I didn't agree with that.

Q. When the matter was before the Court, that is before the judge in New Zealand? A. Yes.

Q. You heard, I suggest, the doctors giving evidence about your drinking problems? A. No, I don't think they went to Court.

Q. I suggest to you that you became aware of the evidence that the doctors gave concerning your drinking problem? A. I never saw any evidence written or otherwise.

Q. But you see, whatever the time whether it is 1965 or 1968 or 1985: You did know what the reason for your drinking was didn't you? A. I didn't link the two.

Q. You have already told His Honour this morning and you have said so in your first affidavit in terms: That the drinking came about to assist you to sleep and thereby avoid the traumatic interruption to your sleep caused by the nightmares and to help you forget about the collision? A. I did say but I didn't tie it up the alcohol was linking with this incident.

Q. Why didn't you tie it up? You knew that you drank to assist you to sleep? A. Yes.

Q. To avoid the problems you were having sleeping which were due to the collision. That is so isn't it? A. Yes.

Q. You also drink to help you overcome the memories of the collision? A. I always felt better when I was drinking.

Q. Presumably because the drinking what, helped you to sleep? A. Well, the memory. You would flake out so you didn't have much problem.

Q. This statement in this paragraph is wrong isn't it? The fact is that you always understood that the reason for your drinking, the reason why you wanted to drink was connected - intimately connected with your problems of memory relating to the collision? A. I never looked at it that way.

Q. There was no doubt, is there, that from 1964 when you first started drinking heavily after the collision? A. Yes.

Q. You were drinking heavily for two reasons. The first reason was to help you forget about the collision. That is so isn't it? A. Yes .

Q. And the second reason was to help you to sleep because of the effect of the collision on you when you were asleep with nightmares and waking up distressed. That is so isn't it? A. Yes .

Q. That has always been the position: That is, ever since February 1964? A. I didn't look at it that way. I was just. I just don't understand.

Q. Back in the 1960's, you were aware then that the nightmares you were having were due to the collision? A. Yes.

Q. You were drinking to deal amongst other things, with your sleep problems? A. Yes.

Q. Due to your nightmares? A. Yes.

Q. You were having problems you claim within your mind because you were suffering from flash backs and images about the collision? A. Yes.

Q. And you drank in order to cope with those events? A. Yes. " (Emphasis added). 51 The plaintiff submitted that his failure to seek assistance with, or treatment for, his problem with alcohol was related to, or was a consequence of, the fundamental and underlying condition of PTSD. The plaintiff submitted that he avoided talking and thinking about the collision because of his psychiatric injury. He submitted that any steps that he failed to take in his own self-interest were significantly caused by the injury itself. 52 The closest that the plaintiff's case came to a pathological disinclination to report his complaints was the evidence of Professor McFarlane that suggested that he "saw his problem as being more of one of his behaviour rather than him having a medical condition". That must be taken to be a reference to the plaintiff's alcoholism, which he did not wish to confront, rather than his PTSD. This is not an uncommon reaction to such a situation. However, this does not seem to me to be a case where the plaintiff has not taken a relevant step in his own self-interest, where the injury itself has been a significant cause of the failure to take such a step. Neither Dr Holwill nor Professor McFarlane says so in terms and such a proposition does not easily emerge from the many topics that they have discussed. The plaintiff's failure to recognise that he was in need of treatment at or about the time of his admission to the Bridge Programme has not been attributed to an injury related cause. Expressions of opinion by Dr Holwill such as his "ongoing emotions are likely to have further impacted upon his ability to consider himself as having a psychiatric disorder" are clearly not directed to, and fall short of establishing, the proposition that the plaintiff was prevented by reason of an accident related cause (alcohol abuse) from taking steps that he should have taken for that condition. Even Dr Holwill's opinion that the plaintiff's "attempts to avoid the impact of the collision on his psychological state are likely to have decreased his ability to deal with this in any sophisticated way" does not go as far as to suggest that the plaintiff's alcohol problems so significantly affected him that he was incapable of recognising his need for treatment and acting accordingly. 53 The defendant contends that the plaintiff ought to have become aware of all of the matters in s 60I(1) more than three years before his application to extend time was made because: 53.1 He ought much earlier to have consulted an appropriate medical professional for treatment for his level of alcohol consumption (to express it in neutral terms); and

53.2 If he had done so he would have become aware of such matters. 54 In my view the evidence suggests that the plaintiff failed to seek treatment for what was a significant health problem when the signs were clear to anyone who cared to look, that his life was being consumed, or at the very least substantially adversely affected, by alcohol and his addiction to it. It is not relevant for present purposes whether the addiction pre-dated the collision or whether it was causally connected to it. Arguments about the defendant's responsibility for the plaintiff's alcoholism do not of themselves inform an answer to the question of whether or not the plaintiff ought to have taken steps to obtain treatment for it. Whatever its cause or causes, there is a wealth of evidence, with the existence of which the plaintiff himself agrees, to suggest that something was or ought to have been apparent that needed urgently to be addressed. 55 The most obvious, although by no means the only, example of this can be found in the episode culminating in his committal to a facility in New Zealand on the application of his wife. The plaintiff's written submissions described that episode in the following terms: "The position in relation to the 1985 court order and admission is even clearer. Plainly, Mr Quirke's wife was aware that he had a drinking problem but he did not accept it. Mr Quirke's own actions at the time vividly demonstrate his complete lack of insight into his problems. As acknowledged in cross-examination, he had been on a pretty severe bender for some months. He was spending long hours at the pub, arriving home very late, spending all his money on alcohol and providing insufficient financial support to his wife and family. He had at least three drink driving offences to his credit. He was in a pretty bad way but it is plain he did not realise it. He did not think he had a problem or needed help and refused to even be examined until compelled. Even after a court order was obtained and he was detained for treatment against his will, he did not accept the need for it. Indeed, his evidence suggests that he does not accept it now. Accordingly, he did a "runner" and had to be rearrested and was brought before the Court again." 56 The significance of this as a life event, and as an event in the relationship he had with his wife and his family, requires no additional emphasis beyond recalling what occurred. The social and emotional predicament that this episode presented to the plaintiff demanded an appropriate response from him. It did not receive such a response. Instead, the plaintiff retreated to notions of denial and disaffection. He did not have anything to do with the counsellors at the Bridge Programme and in fact simply ignored them. He then absconded. He was aware that he had been subjected to the whole process because some people believed that he needed assistance with the state of his alcohol consumption but he "didn't agree with that". In my view, that attitude was not one that the plaintiff could, or should, reasonably have held at that time, bearing in mind that that "question is not asked in some general moral sense, in terms such as 'he owed it to himself' or 'he owed it to his family' but in the sense of whether, not having sought medical help [earlier], he should now be allowed to claim that his medical condition was caused by the Commonwealth": see Shaw (supra) per Basten JA at par [71]. 57 I also find that the plaintiff drank for reasons associated with, or related to, the collision and that this would have become known to him if he had sought appropriate medical advice. This is apparent for at least two reasons. First, so much emerges from the reports of Dr Holwill and Professor McFarlane. Their reports speak with admirable clarity about the existence of an alcohol problem and the continuing relationship between that problem and the collision. A similar presentation to any other qualified medical professional would in all likelihood have produced a similar result. As the plaintiff's submissions noted, each was able to diagnose the plaintiff's psychiatric conditions and neither expressed any difficulty in doing so. The plaintiff would in my view have told the hypothetical medical practitioner to whom he should have presented himself about all of the same things that permitted Dr Holwill and Professor McFarlane to conclude that he had a long history of alcohol abuse. The aetiology of his PTSD would in my view have clearly emerged. The plaintiff would have been told that he was suffering from a personal injury and would have become aware of its nature and extent. 58 Even if the plaintiff did not recognise that he had what he would have described or recognised as a medical problem, there were sufficient indications to the plaintiff that he was in need of help for simply drinking to excess. The plaintiff in fact conceded in cross-examination that he knew that the Bridge Programme conducted a unit principally designed to treat and hopefully to rehabilitate people suffering from alcohol addiction. The plaintiff could have been left in no doubt about his need for treatment even if he retained no desire to seek it. 59 Secondly, the plaintiff has given evidence that I find demonstrates that he recognised that there was a connection between his alcohol consumption and the collision. The version given by him in his first affidavit is to this effect. Subsequent restatements of his understanding are difficult to accept as genuine, or at the very best as persuasive or convincing, in the light both of what is deposed to in the first affidavit and subsequent judicial statements made before the later affidavit. Moreover, the plaintiff's evidence in cross-examination makes it clear that he knew of the connection. He was drinking to forget about the collision or to eradicate thoughts of it that prevented him from sleeping. As he said, he drank to cope with it all. 60 I find that the plaintiff knew by 1985, although probably well before this time, that his drinking was a problem for him and that at least by then, or within a very short period thereafter, he should have sought treatment for it or advice about it. It seems reasonably likely that he would have received that treatment if he had remained on the Bridge Programme. I find that if he had sought appropriate treatment he would have been made aware of all of the matters of which he is presently aware, but in particular that he had suffered personal injury in the collision and the nature and extent of that personal injury. I also find that if he had sought medical help at an earlier time, his condition would have been diagnosed, much as it has now been diagnosed, as involving a mental disorder attributable to the collision. 61 The plaintiff made a particular legal submission with respect to whether or not he ought to have been aware of the s 60I(1)(a)(iii) "connection" for the purposes of s 60I(1)(b). This submission was that the plaintiff was unaware of the connection to which s 60I(1)(a)(iii) refers and that it had not been, and could not be, shown that the plaintiff "ought to have become aware" of it more than three years before the present application was commenced, in accordance with s 60I(1)(b). The plaintiff submitted that this was because the defendant led no evidence, and presumably submitted that there was no evidence, including the cross-examination of the plaintiff, about enquiries that should reasonably have been undertaken by the plaintiff "that would have led to him gaining knowledge of all of the acts and omissions leading to the collision" (emphasis added). These words require examination. 62 It is inherent in this submission that the relevant level of knowledge, which it must be shown the plaintiff ought to have had, is not limited to the factual connection between his personal injury and the collision simpliciter but that it extended to demonstrating that the plaintiff ought to have had a knowledge of "all of the acts and omissions leading to the collision". This submission appears to encompass the notion that it would have to be demonstrated that the plaintiff ought to have been required to make a causal connection not merely between his personal injury on the one hand and the collision on the other hand, but between his personal injury and all the allegedly relevant particulars of fault on the part of the defendant that caused the collision in a legal sense.

63 In State Rail Authority v Gaudron (Court of Appeal, 1 May 1997, unreported) the plaintiff sustained severe injuries when he was eight years old when a train ran over his foot. In that case Brownie AJA said: "An applicant for an extension of a limitation period, relying upon clause 4 of Schedule 5 and section 60I(1)(a)(ii) [sic (iii)] of the Limitation Act , needs to establish a lack of awareness of the connection between the personal injury in question and the defendant's act or omission. This is not established merely by some ingenious pleader drafting a Statement of Claim containing multiple allegations of breach of duty, or describing one breach of duty in a number of different ways, and by the applicant then deposing in general terms to a lack of awareness of the matters covered by the pleading and particulars, as distinct from an awareness of such matters as the happening of the accident in question, and generally how it happened. Rather, as happened in this case, the applicant must adduce evidence of a lack of awareness of the relevant facts." (Emphasis added). 64 It will also be recalled that in Dedousis v Water Board [1994] HCA 57; (1994) 181 CLR 171 the High Court said the following: "[27] It is true that s 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was 'unaware of the connection between the personal injury and the defendant's act or omission' within the meaning of s 60I(1)(a)(iii). On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions." (Emphasis added).

65 I am satisfied that the plaintiff ought to have been aware of the connection between his personal injury and the collision. There is evidence that he was. For example, the plaintiff agreed that he drank to avoid the problems he was having with sleeping that "were due to the collision". On one view this is more than a mere consciousness "of an abstract temporal connection" between his condition and the collision in the sense discussed in Shaw (supra) per Basten JA at par [21]. He also said in par 23 of his first affidavit that he "would drink heavily on and off, in an attempt to forget about the collision". 66 The plaintiff gave evidence by way of affidavit sworn 18 July 2003 that he first read the statement of claim in this matter in February 1999 and that until he did so he had no knowledge of any negligent acts or omissions by the defendant. He said that he had not known until that time that the defendant's negligent acts or omissions had caused his psychiatric condition. In his affidavit sworn 13 March 2007 the plaintiff said that the statement of claim listed many mistakes that had allegedly been made by the crew of the Melbourne and the crew of the Voyager. He said that it was only when he saw that document that he understood that there were many mistakes made by persons on those vessels that led to the collision. He did not know what had caused the collision before that. This was the only evidence on this topic. The plaintiff was not cross-examined upon it. 67 In Shaw (supra), Basten JA at par [74], expressed his opinion concerning the par (b) issue in the following terms: "[74] In my view the plaintiff ought, for the purposes of par (b), to have sought medical advice at an earlier stage and, if he had done so, it is likely that he would have become aware of the nature and extent of his illness and its connection with the collision at sea. " (Emphasis added). 68 However, unlike the conclusion that must have been reached in Shaw, I am not satisfied in the present case that the plaintiff ought to have been aware of the connection between his personal injury and all the relevant particulars of fault on the part of the defendant that caused the collision in the way considered in the authorities. The relevant word in s 60I(1)(a)(iii) would appear to be "connection", which "must be understood as involving an element of causal relationship, of the common sense kind which is relevant in this context": see Shaw (supra) per Basten JA at par [25]. The relevant act or omission in this context is not limited to the fact of a collision between naval vessels in the course of their deployment in exercises on the high seas under the command of the defendant. I am satisfied that if the plaintiff had sought medical advice at the earlier time that I have indicated he "would have become aware of the nature and extent of his illness and its connection with the collision at sea". However, I accept the submission that there is arguably no evidence that the plaintiff either knew or, for presently relevant purposes, ought to have known of a connection between his personal injury and "all of the acts and omissions leading to the collision". 69 In Baragwanath v Commonwealth of Australia [2005] NSWSC 575, Hoeben J dealt with the matters that ought to have been within the knowledge of the plaintiff at the relevant time as follows: "[26] The submission misunderstands what was said by the High Court in Dedousis v Water Board (1994) 181 CLR 171 and Drayton Coal Pty Limited v Drain (Court of Appeal, unreported, 22 August 1995).

'Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than the legal conclusion. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence) and the plaintiff's awareness of that legal complexion, is not what matters for the purposes of s60I(1).

The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G . Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the Statement of Claim and the evidence in support of the application for an extension of time)'." ( Drayton pp 5-6) (Emphasis added). 70 His Honour then came to this conclusion on the s 60I(1)(a)(iii) / par (b) point: "[27] Putting the defendant's submission at its highest on this point, the plaintiff was aware of the legal conclusion, ie that someone must have been negligent. There is no evidence that he had any knowledge of any of the facts upon which such a finding of negligence might have been based. On the contrary his evidence was to the effect that he had no detailed knowledge of the facts leading up to the collision at all. In those circumstances, I am of the opinion that the plaintiff has accessed the gateway provided by s60I(1)(a)(iii).

[28] It follows from the above findings in relation to s60I(1)(a)(ii) and (iii) that, because the plaintiff did not have the requisite knowledge until after he consulted his present solicitors in July/August 2001, these present proceedings were brought in accordance with s60I(1)(b), ie within three years after the plaintiff became aware of all three matters listed in (a)". (Emphasis added) 71 The same theme was evident in the reasons of Johnson J in Galea v Commonwealth of Australia [2008] NSWSC 44 where, at par [83] his Honour dealt with the plaintiff's submissions to a similar effect as follows: "[83] I accept the Plaintiff's submissions, as summarised below, that the requirements of s 60I (1)(a)(iii) have been satisfied as well. The subsection has three elements - awareness of personal injury, the act or omissions of the Defendant and the connection between those two elements. Mr Melick SC submits that the Plaintiff was unaware of the acts and omissions, the mistakes of the Defendant that caused the collision, so that he could not have been aware that they caused his injury. The relevant acts or omissions are those upon which the Plaintiff relies. Mr Melick SC notes the Plaintiff's acknowledgment that he knew that " something had gone wrong " and his belief that someone on the bridge of either vessel had failed to manage his ship safely. Although it may be accepted that the Plaintiff knew, and it would have been obvious, that something had gone wrong, I am satisfied that the authorities make it clear that this is not enough. He submits that the Plaintiff was unaware of the mistakes made by the crew of either vessel that led to the collision until he was shown the Statement of Claim. Mr Melick SC submits that this is not surprising, given the nature of some of those acts, such as the signals between the two vessels. He submits that the present Plaintiff is in a similar position to the Plaintiff in Baragwanath v Commonwealth of Australia [2005] NSWSC 575, where it was held (at [24], [27]) that the plaintiff's knowledge that collisions do not just happen and that the Navy was at fault was insufficient where the Plaintiff had no knowledge of the facts upon which a finding of negligence might be based " . (Emphasis added). 72 I accept the submission that no evidence has been led, including by way of cross-examination of the plaintiff, as to enquiries that should reasonably have been undertaken by him that would have led to him gaining knowledge of all the acts and omissions leading to the collision. Although I have found that the plaintiff ought to have become aware that he had suffered personal injury and of the nature and extent of the personal injury suffered, and to that extent acted unreasonably, I do not consider that the plaintiff ought sooner than he did to have become aware of the connection between the personal injury and the defendant's act or omission, particularly having regard to the meaning of that concept as explained in the authorities to which I have referred. In that context, the plaintiff acted reasonably.

73 In summary of the position with respect to par (b), therefore, I find that the present application was not made within three years after the plaintiff ought to have become aware of the matters listed in s 60I(1)(a)(i)-(ii). However, I find that it was made within three years after the plaintiff ought to have become aware of the matter listed in s 60I(1)(a)(iii). Therefore the application was made within three years after the plaintiff ought to have become aware of all three matters listed in s 60I(1)(a)(i)-(iii). The general discretion: s 60G(2) 74 Having regard to the view I have taken with respect to what is consistently referred to as "the normative limb" of par (b), it remains necessary to consider whether an extension of time would be just and reasonable in the circumstances. 75 Section 60G(2) of the Act is in the following terms: " 60G Ordinary action (including surviving action)

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 76 The defendant pointed to the plaintiff's description of his experience of the collision including being in close proximity to the bulkheads when they collapsed (being in or adjacent to "the brig"), seeing the bow of the Voyager scraping along the side of the Melbourne and seeing a sailor drown in a failed helicopter lift. In the defendant's submission, the plaintiff's Royal Commission Questionnaire contradicts the first of these assertions in its entirety, and the second assertion is entirely inconsistent with the first. The third assertion stands apart from the accounts and experiences of more than 1,000 people aboard the Melbourne at the time of the collision. There is no reference to it in any of the material (Royal Commissions or otherwise) and no allegation in any of the actions brought in relation to the collision that such an event took place or that it was witnessed. 77 According to the defendant, these assertions go to the core of the plaintiff's case in that they provide the foundation for his claimed psychological injury. Furthermore, it is plain that the defendant, after this length of time, is materially restricted and prejudiced in responding to what the plaintiff says about what he was doing and what he truly experienced at the time of the collision. 78 It is the plaintiff's case that he commenced drinking to excess after February 1964 as a response to the impact of the collision upon him. The discovered material establishes that he had convictions in New Zealand dating back to 1960. The available material does not permit an analysis of the extent to which alcohol was a contributing factor in the pre-1964 New Zealand matters, although the scant material available suggests that it might have been. The plaintiff's disciplinary record in the navy before February 1964 also suggests alcohol may have been a contributing factor. The passage of time effectively means that any investigation into these matters now is unlikely to be fruitful. Potential witnesses are either dead or at best difficult to identify and locate. The defendant submits that all of these factors create significant prejudice.

79 The plaintiff claims he that he developed symptoms of PTSD shortly after February 1964 and that they continued without much change until about 2000. The facts are that the plaintiff was discharged from the Navy on 5 May 1964 on account of his poor disciplinary record over the entirety of his short service. He joined the New Zealand Army in 1966 and applied for entry to the New Zealand SAS in 1968. He sought and was granted a discharge from the New Zealand Army in 1969. Thereafter the plaintiff engaged in more or less continuous civilian employment in New Zealand over the next 30 years. In 1968, whilst serving with the New Zealand Army in Malaya, the plaintiff was admitted to the British Military Hospital in Singapore in circumstances referred to in detail by Dr Holwill. The records of the British Hospital have not been located. According to the defendant, their absence is significant and, in terms of prejudice, profound having regard to the importance that Dr Holwill attaches to this event.

80 A memorandum dated 17 June 1969 in the New Zealand Army records briefly addresses the plaintiff's return to New Zealand from service in Malaya. It reveals that he was returned to New Zealand on "medical, compassionate and disciplinary grounds". The memorandum states "after an average start, the soldier indulged excessively in alcohol… repeated warnings and disciplinary action had no effect. The soldier's drinking habits culminated in his admission to hospital with [delirium tremens]". The memorandum goes on to state that there was no improvement apparent after his discharge from hospital and that indulgence in alcohol led to a steady decline in his training and to him becoming unacceptable for service in Vietnam. 81 The reference to the hospital admission in the memorandum may be, and probably is, a reference to the 'Singapore admission' to which the plaintiff refers and to which Dr Holwill addresses his remarks when he describes an "acute exacerbation of the psychological illness". The defendant contends that the absence of any medical records relating to any hospital admissions at this time gives rise to significant prejudice. The New Zealand Army memorandum casts serious doubt on the interpretation that the plaintiff would put on the hospital admission in any event, but no further material on the issue is to be had from the New Zealand Army records. Those records in the period up to the plaintiff's 1968 hospitalisation suggest a continuity of excessive drinking and misbehaviour but the records are otherwise sparse and provide no basis upon which an enquiry about further information could proceed.

82 In August 1985 the plaintiff was arrested, examined and detained pursuant to the Alcohol & Drug Addiction Act (NZ) on account of his alcoholism, which manifested itself in a drinking binge lasting several months during which time he failed to support his wife and children who were then apparently totally dependant on him. He was admitted to the Salvation Army Bridge Programme, a treatment centre for addiction in Wellington, New Zealand. He absconded from the holding centre unit after a detention period of some days and, due to his obtaining work and resuming support for his family, was not recommitted. The records of the hospital are not available.

83 The defendant submitted that in these circumstances the following matters were significant in any consideration of the question of prejudice: * The plaintiff's account of his circumstances at the time of the collision gives rise to significant credit and prejudice issues, having regard to the absence of relevant witnesses; * The absence of records concerning the plaintiff's convictions before he joined the Navy; * The inability of the defendant to investigate the circumstances of the plaintiff's disciplinary record in the Navy, both before and after February 1964; * The unavailability of medical records for approximately 14 years after the plaintiff's discharge from the Navy; * The absence of records relating to the plaintiff's civilian employment up to the mid 1980s and the limited material available thereafter; * The complete absence of records from the British Hospital in Singapore; * The complete absence of records from the psychiatric unit and rehabilitation establishment in New Zealand to which the plaintiff was admitted in 1985; * The restricted nature of the medical and personnel records provided by the New Zealand Army and, in particular, the complete absence of any records concerning the plaintiff's engagement on active service in Malaya in the period 1968-9, with the associated exposure to that potentially unstable and dangerous environment, and to his application to join the SAS.

84 In Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, Sheller JA (with whom Meagher and Handley JJA and Brownie AJA agreed) stated at [119] that the effect of the High Court decision in Taylor's case 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. If there were such prejudice, the plaintiff would not be able to demonstrate that it was fair and just that leave be granted. Fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal: McLean v Sydney Water Corporation [2001] NSWCA 122. However in that case Hodgson CJ in Eq said this at par [35]: "[35] In my opinion, the dimming of the memory of witnesses from the passage of many years inevitably means that a trial would involve a greater risk of a wrong decision than if the proceedings had been commenced much earlier. Although it could be said that this is a risk to both parties equally and therefore does not involve unfairness, in my opinion the greater risk of a wrong decision in the circumstances of an application for extension of time does involve a degree of unfairness to prospective defendants, even though it may not be possible to say that there could not be a fair trial". 85 Each case must of course depend upon its own particular facts. Unlike almost any other single event giving rise to multiple claims by injured plaintiffs, the events surrounding the collision between the Melbourne and Voyager are extremely well known and there is considerable general documentary evidence available: see Commonwealth of Australia v McLean (1997) 41 NSWLR 389. The plaintiff's application is not unique and is not made in circumstances where the defendant is potentially being required to confront and to investigate a novel set of facts for the first time. 86 The plaintiff submitted that the defendant has been on notice of the collision since it occurred and has had the opportunity during that time to inform itself both in relation to liability and damages. It has also been on notice for many years that sailors from both vessels were bringing claims with respect to the collision. 87 In considering whether a fair trial is possible, the Court is entitled to identify the real issues that will arise between the parties and assess the effect that any missing evidence will have in determining those issues: see Commonwealth of Australia v Smith [2005] NSWCA 478 per Santow J at [135]. Unlike most, or at least many, cases, there will be no present dispute as to negligence, which considerably limits the potential areas of possible prejudice. In the plaintiff's submission, it is likely that his alcohol abuse and dependence will not be seriously contested in light of all of the evidence, including the need for his wife to obtain a court order to get him 'to dry out'. The central controversy is likely to be whether the plaintiff in fact suffers from PTSD and what caused it if he does. 88 I am mindful of the remarkable analysis of comparable cases conducted by Santow JA in Smith (supra). It will be recalled that that analysis included the following comments: "[148] There is one further matter which bears generically on this argument as well as on costs. There have now been at least 30 other matters heard in the Supreme Court of NSW in which former members of the Melbourne crew have applied for an extension of the limitation period under s 60G and s 60I Limitation Act . [Case references omitted]. The Commonwealth has opposed every case on the ground (inter alia) that it would suffer significant prejudice by the effluxion of time. In only three of these cases did the court decline to extend the limitation period ( Commonwealth v Diston [2003] NSWCA 51 confirming the decision of Harrison M; Pearce v Commonwealth [2005] NSWSC 359; Blyth v Commonwealth [2005] NSWSC 721).

[149] In Blyth , significant prejudice to the Commonwealth arose primarily as a result of the difficulty that the Commonwealth would face in determining the applicant's loss of earnings and loss of earning capacity since leaving the Navy. However, Studdert J commented at [97] that the unavailability of witnesses who could give evidence of the applicant's behaviour before the collision, of the circumstances surrounding his discharge and of what the applicant was doing at the time of the collision would not have influenced him to refuse the application (although each would have contributed in some degree to the overall extent of the prejudicial exposure of the Commonwealth had the application succeeded). In Diston , the absence of medical and employment records was found to be significantly prejudicial in circumstances where the applicant's evidence was found to be unreliable, making it more difficult for the Commonwealth to investigate his claims. In Pearce , the judge found that the applicant had failed to pass the threshold test in s 60I but that there could have been a fair trial if leave were granted.

[150] In all the other applications the court found that the Commonwealth would not suffer significant prejudice and extended the limitation period. The circumstances of each case and the history of each applicant are of course different. The Commonwealth is entitled to argue that it would suffer prejudice particular to the circumstances of the applicant in each case. However, the Commonwealth continues to contend that lack of medical and employment records and the unavailability of witnesses have created significant prejudice. This is despite the fact that these arguments have so frequently been rejected by the court in finding that it is just and reasonable to extend the limitation period. Similarly, the Commonwealth has consistently run (and lost) arguments that it would suffer significant prejudice resulting from the loss or destruction of defence records, principally consisting of the applicant's service records. [Case references omitted].

[151] The Court has regularly found that sufficient evidence had been retained either by the applicant or the Commonwealth or both. This was either sufficient to allow a fair trial or the Court found that the difficulties were more likely to affect the plaintiff who bore the onus of establishing the injury. [Case references omitted].

[152] The Commonwealth has also regularly failed in submissions that it would suffer significant prejudice as a result of:

(a) being deprived of witnesses (due to their unavailability or inability to recall) who could give evidence of the applicant's behaviour during his service in the Navy before, during and after the collision; [Case references omitted].

(b) the doctors and medical officers who examined the applicant and wrote medical reports being unavailable or unable to recall the applicant; [Case references omitted]

(c) the absence of medical records for the applicant since leaving the Navy. [Case references omitted].

[153] In no case has the Commonwealth succeeded in discharging the evidentiary onus by establishing that it would suffer significant prejudice on the basis of the loss or absence of this evidence". 89 As has been consistently referred to, a fair trial is not a perfect trial. Disadvantages afflicting both the plaintiff and the defendant by reason of delay in bringing the present proceedings will undoubtedly exist. However, I am not satisfied that the defendant will suffer significant prejudice upon the basis of the loss or unavailability of the following evidence to which it directs particular attention.

90 First, that the plaintiff's account of his circumstances at the time of the collision are likely to be a matter of dispute. On one view, the doubt that attends his recollection of events, and whether or not it can be accurate, is more likely adversely to affect the plaintiff than the defendant. (This of course is a presently irrelevant consideration: see, for example, Shaw per Basten JA at par [83] and Blyth v Commonwealth of Australia [2005] NSWSC 721 per Studdert J at par [95]. The question of prejudice does not depend upon a balancing exercise. I mention it only to attempt more accurately to identify the type of prejudice, if any, that it is likely to create). 91 There is also an inherent unlikelihood that the plaintiff could have been able to observe the collision in the way that he describes if he was in or near the brig when it occurred. Other matters, such as the helicopter incident, may be demonstrably incapable of proof by the plaintiff or capable positively of being shown by the defendant to be wrong. That does not mean that the defendant has been significantly prejudiced and may in fact mean the opposite. 92 The absence of records concerning the plaintiff's convictions before he joined the Navy is not significant either. His pre-collision drinking is arguably established out of his own mouth. The existence or otherwise as a proven fact of convictions, so as to add colour to this aspect of his life, is of little moment. 93 The difficulty said to be created by the defendant's inability to investigate the circumstances of the plaintiff's disciplinary record in the Navy, both before and after February 1964, is also more apparent than real. Again, as part of the plaintiff's evidence in this application, he was disciplined on more than one occasion for drink-related conduct. The availability of the plaintiff's record would have been preferable but its absence is not critical to a fair trial. 94 The unavailability of medical records for approximately 14 years after the plaintiff's discharge from the Navy is potentially a matter of some importance. Having regard to the plaintiff's lack of concern for himself, and lack of insight generally, it may well be that no material would in any event have been available. It is inappropriate and unprofitable to speculate about this, however, and the decade following the collision may well in truth have liberated important indicators on some critical issues in the proceedings. I have taken this prejudice to the defendant into account in forming my final views on this topic. 95 The absence of records relating to the plaintiff's civilian employment up to the mid 1980s, and the limited material available thereafter, do not appear to me to be of great significance. It is not unusual in cases where a plaintiff has had a work history that consists of or includes employment with several employers that records are not always available or complete. The present case does not strike me as being in any different category. The evidence suggests that most of the years that the plaintiff worked are referable to known or named employers. Some 18 different work colleagues and supervisors have been named in the plaintiff's supplementary affidavit of 7 August 2006 and the defendant was able to contact several of his former employers and work colleagues even before receiving that information. Unlike the position in Blyth (supra), I do not consider that "there are very substantial gaps in the records of the plaintiff's earnings" (par [81]) or "that the defendant would face extreme difficulty in endeavouring to determine what the plaintiff has actually earned since he left the Navy" (par [83]). 96 The defendant points next to the complete absence of records from the British Hospital in Singapore. Major Bell's letter of 17 June 1969, referring to admission to hospital with delirium tremens, also indicated that "no improvement was noted after his discharge from hospital". This was clearly a reference to "the soldier's drinking habits". In my opinion it is highly unlikely that the Singapore hospital records would contain any reference to material that would either support or derogate from the existence of a connection between the episode that led to the plaintiff's admission to the hospital and his reaction to the collision. The absence of the records is potentially prejudicial but not significantly so. 97 Nor is the complete absence of records from the psychiatric unit and rehabilitation establishment in New Zealand to which the plaintiff was admitted in 1985 significantly prejudicial to the defendant. The facts are known to be that the plaintiff was admitted for alcohol related behaviour. The prejudice to the defendant that might attend the absence of that material on an application to extend time should not be confused with the prejudice presently being considered. Whereas the subject records might be significant in the former case, they do not seem to me to as significant in the latter. I accept that the matter is not all one way and that a forensic preference must favour their availability. However, the issues to which that material would be relevant at the trial seem to me on balance to be capable of exposure to informed scrutiny even without them. 98 The restricted nature of the medical and personnel records provided by the New Zealand Army and, in particular, the complete absence of any records concerning the plaintiff's engagement on active service in Malaya in the period 1968-9, with the associated exposure to that potentially unstable and dangerous environment, and to his application to join the SAS, create little if any prejudice to the defendant at all. The army records that are produced are detailed and extensive. The very suggestion that the records are in some way of a "restricted nature" appears to make an assumption without a demonstrated foundation. The records contain references to matters as seemingly mundane and insignificant as the plaintiff's request for permission to play in a softball competition. The strongest inference to arise from an apparent absence of medical and personnel records from an otherwise bureaucratic and paternal collection of information about the plaintiff is that there is nothing to be found. 99 The material supports the fact that the plaintiff was not considered to have been an asset to the army during his time of service, was not suitable for assignment to the SAS or posting to Vietnam, and that his application for a discharge was enthusiastically embraced. His disciplinary record is also referred to in some detail and strongly suggests that his career prospects within the army were likely to have been severely limited. Again, on balance, I do not consider that the extent of the material available from the army is such as significantly to prejudice the defendant. 100 As I have already somewhat uncontroversially remarked, all cases must inevitably be decided on their own particular facts. I note however the comments of McColl JA at pars [120]-[121] in Commonwealth of Australia v Smith [2007] NSWCA 168 as follows: "[120] I accept that proper use of precedent is to identify the legal principles to apply to facts as found and that while decided cases may give guidance in identifying the issues to be resolved and the correct legal approach to the resolution of those issues and assist in maintaining judicial consistency, each case turns on its own facts: see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [3]) per Gleeson CJ and Kirby J (at [31] per McHugh J); State of Queensland v Stephenson [2006] HCA 20; (2006) 226 CLR 197 (at [99]) per Heydon J.

[121] Nevertheless the Commonwealth's repeated unsuccessful reliance on the same issues in Melbourne cases raised a real question as to its utilisation of the Court's resources". 101 Although her Honour's sentiments are not directly relevant to the issue that I am required to determine, they are to some extent redolent of the concept discussed by Basten JA in Shaw (supra) at par [73] that "it is desirable that similar cases (and there are now many arising from the Melbourne/Voyager collision) should, so far as possible, be decided consistently": see par [32] above. Although his Honour came to a different view in that case for the reasons he gave, this consideration is important having regard to the matters identified by McColl JA in Smith in 2007 and in particular by Santow JA in Smith in 2005.

102 In all the circumstances, I am satisfied on the balance of probabilities that it is just and reasonable for the plaintiff to have an extension of time. The plaintiff has satisfied the requirements of s 60I and s 60G of the Act. Accordingly I make the following orders: 1. Order that the limitation period to commence the proceedings be extended up to and including 25 February 1999.

2. Order that the costs of the application be costs in the cause.

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