80 The table extracts information from the extensive affidavits and exhibits to which I have already referred. In respect of the destroyed files, what actually might be in them and what of value has been lost is not explained. The fact is that extensive medical and other files have survived. In my view, although the lost documents may have filled some lacunae in the complete service biography of the plaintiff, they are unlikely to be of any actual substantial forensic significance. The table shows that a number of potentially relevant witnesses are indeed available.
81 As far as the collision itself is concerned, as has been frequently mentioned in other cases, two Royal Commissions enquired into and reported on it. It is difficult to accept that there is any lack of evidence concerning the collision itself. So far as the effect of the events on Mr Smith is concerned, there is nothing in his description of them that seems unlikely to be true and considering the likelihood that anybody in close proximity to him who might have noticed him would be in essentially the same predicament, it seems most improbable that they would have taken much notice of him or what he was doing except, perhaps, to say that he was as panic-stricken as they. It should be remembered that he was eighteen at the time of these events.
82 I regarded the plaintiff as a truthful witness, although legitimate criticisms can be made of the reliability of his recollections. These problems, however, rather reflect on his ability to make his case and are not, in a real forensic sense, prejudicial to the Commonwealth. I accept the evidence of the plaintiff as to his knowledge of the existence of a personal injury. I accept that he had not heard of the condition PTSD until seeing Mrs Higgins in November 1991. I am quite sure that the plaintiff did not understand the nature of this condition. I think that the most he made of it was that it was a description of his symptoms rather than a psychiatric injury. Indeed, I think that he was mystified rather than illuminated by Mrs Higgins' information. In other words, he was troubled by the symptoms described in the form filled in for him by Mrs Higgins for the purpose of seeking a pension but did not think of those conditions together as demonstrating a distinct or, indeed, any psychiatric illness. I accept the plaintiff that it was only when he spoke to Dr Holwill that he appreciated that he did suffer from an illness and that it was instigated by his experiences during the collision and its immediate aftermath. I think it likely, moreover, that the plaintiff attributed his symptoms, centring on what I might describe as his quasi-claustrophobia (speaking as a layperson) of which his phobic fear of flying was perhaps the most intense, as essentially deriving from his experiences in Vietnam. Plainly enough, he was aware that to some degree these feelings were present before he went to Vietnam but they gained potency during and after his service there. It is probably self-evident that at no point did he attempt to objectively analyse his situation for the purpose of understanding the relative contributions particularly of shocking or troubling events made to the thoughts and feelings of a negative or troubling kind that he was feeling. Nor is it reasonable to expect that he should have done so.
83 The plaintiff said that he had not followed the press reports of the Royal Commissions and was unaware of the alleged negligence of the Commonwealth until he read what his solicitor had put in the statement of claim. I accept this evidence.
84 In short, I accept that the plaintiff was unaware until he saw Dr Holwill that he had PTSD and that it was at least in part caused by or attributable to his experiences during and immediately after the collision. In fairness, I observe that Mr Barry QC did not ultimately submit otherwise. The thrust of the argument before me related to the requirement that the limitation period can only be extended if (the other pre-conditions being satisfied) "it is just and reasonable to do so": s 60T. Another way of putting this test is whether there has not been such prejudice to the defendant that a fair trial cannot be had.
85 The notion of a fair trial is not a precise one. Frequently, an interplay of different circumstances need to be evaluated. In Holt v Wynter (2000) 49 NSWLR 128 Priestley JA said (at 142) -
[79] No submissions were made to the Court in the present appeal dealing with the content of the idea of a fair trial in the context of an application for leave to commence proceedings. Brisbane South [Regional Health Authority] v Taylor (1996) 186 CLR 541] itself demonstrates that different judges have somewhat different ideas on the matter. One thing seems to be clear; that is that the term is a relative one and must in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.
…
[84] It seems to me that a court considering an application under section 52(4) [of the Motor Accidents Act 1988] (when governed by the form relevant to the present case), must ask whether the plaintiff has discharged the onus of showing that as between the parties it would be fair and just for the trial to be held, and that the trial would be fair, and in considering whether the trial would be fair, must take into account the circumstances of the parties and what they have done relative to one another about the claimed cause of action in the period between the events relied on as giving rise to it, and the date of applying for leave to commence proceedings."
86 Sheller JA, with whose reasons Meagher and Handley JA and Brownie AJA agreed, said that the effect of Brisbane South was that "an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in a significant prejudice to the potential defendant": quoted with approval by Giles JA (with whom Stein JA and Hodgeson CJ in Eq agreed) in McLean v Sydney Water Corporation [2001] NSWCA 122 [19]; see also Commonwealth v Smith [2005] NSWCA 478 per Santow JA at [127] - [129].
87 It is clear that the plaintiff bears the ultimate onus of satisfying the court that the it is just and reasonable to extend the period but the Commonwealth has "an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend": Smith [2005] NSWCA per Santow JA at [131]. In Sydney City Council v Zegarac (1988) 43 NSWLR 195, Mason P said (at [197]) -
"Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the plaintiff's favour…Failure to adduce such evidence must draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in the party's camp to know the existence, impact and internal 'extent' of such prejudice."
88 In Gretton v Commonwealth [2005] NSWSC 437 McDougall J noted -
[49] But the Commonwealth's evidence did not show that it could not make a case relying on those who did remember Mr Gretton and who were prepared to help. Indeed, the Commonwealth's evidence on this point was less than forthcoming. Its evidence simply showed, at best, whether or not [the investigator] had located the potential witnesses and whether or not they recalled Mr Gretton. On cross-examination, however, three points became apparent.
[50] The first is that it does not seem that any great attempt was made to jolt the memories of those contacted. [The investigator] said at first simply that he rang them, and asked them whether they recalled Mr Gretton. It became apparent later that something more was said, including whether the person had served in the Navy and (where relevant) whether he was serving on board the Melbourne at the time of the collision. But I am not satisfied that any real or thorough attempt was made to jog memories of those contacted. Thus, I regard with some degree of suspicion the proposition that some of those contacted had no, or only a limited, memory."
89 These observations apply also to the present case. As it seems to me, not only should I conclude that the Commonwealth has not suffered prejudice in respect of materials that it has itself destroyed but, in respect of the potential witnesses whom it has identified, it has not satisfied the evidentiary onus of proving prejudice, so far as their evidence is concerned as, in effect, it deliberately did not seek full statements from them: cf Smith [2005] NSWCA per Santow JA at [138]-[140].
90 Leaving aside the availability of potentially relevant witnesses, it is not as I understand it maintained or, at least it is not strongly pressed by the Commonwealth, that the documentary material available to the Commonwealth is significantly incomplete. Thus, Ms Ordiz deposes that the plaintiff produced relevant to a subpoena of production on behalf of the Commonwealth, some RAN documentation including his Certificate of Service. She described this latter document as a contemporaneous record of the plaintiff's actual service, including his performance, achievements and progression during his time in the RAN. It is submitted, in substance, that this document is merely a starting point for locating witnesses who reported on the plaintiff and recorded their comments on his Certificate of Service. A large number of the persons who signed the Certificate, it is said, could not be identified from their signatures. Leaving aside the likelihood that unidentified signatories would remember any detail of the plaintiff probative of the issues in the case, it seems to me that their identities or at least most of them are likely to be ascertainable from other records, given the details which appear on the Certificate.
91 As I have already mentioned, the nature of the plaintiff's case is not such as would have made it likely that anyone but the most perspicacious observer would have realised that anything was significantly amiss with him during the period up to, at least, the immediate pre-Vietnam training period. Even if the plaintiff's action had been commenced within the limitation period, it is unlikely that, given the nature of his condition and his description of what he then experienced, any of the persons whose lost identities the Commonwealth complains about would have been able to give significant evidence, one way or the other. I recognise that this analysis assumes the reliability of the history that the plaintiff has given. However, if his symptoms were more marked than he has asserted (so that the witnesses might have been able to given material evidence) then that would assist the plaintiff and not the defendant. It is difficult to see how anyone would have noticed that the plaintiff's symptoms were less marked than he has described, since he has in effect said that they were not such as would have led someone to notice, with the exception of course that he wished to sleep on deck. However, I think that too nice a logical analysis is inappropriate and that the approach should be one of practical judgment about the likely course of that trial. If I may say so with respect, this seems to me to be the approach adopted by Barr J in Smith v The Commonwealth [2004] NSWSC 873 and McDougall J in Gretton v The Commonwealth [2005] NSWSC 437, the Court of Appeal in the former case not suggesting that such an approach was mistaken.
92 The Commonwealth has access to the RAN's medical records relating to the plaintiff, which strike me as comprehensive. Although some of those doctors are dead, some have been able to be contacted and others who are alive do not recall the plaintiff. I do not think this leads to any actual prejudice. Even if the action had been brought in time, it is improbable that, having regard to the reasons for seeking treatment, the doctors involved would have recalled the plaintiff. More significantly, the nature of the consultations would have been most unlikely to have given rise to the obtaining of any history (either in a positive or negative sense) material to the issues in this case. Mr Barry QC virtually conceded as much in his submissions, focusing on the absence of Dr McGeorge as being productive of actual prejudice. For the reasons I have already given, I do not think that the absence of Dr McGeorge does give rise to any actual prejudice to the Commonwealth in its conduct of this case.
93 Much is made by Mr Barry QC of the complicating feature that there appears to be a ready explanation for the plaintiff's condition in and when he left Vietnam in the sense that the stressors during that period were significant. The most marked symptom suffered by the plaintiff is his phobia about planes, linked with his fear of being between the decks of a ship and in a train. (I note that none of these disabilities strike me as having much significance in terms of compensatory damages.) However, the first two symptoms and possibly the third appear to be accepted by the Commonwealth, though it disputes their cause. In the result, the Commonwealth has access to extensive medical reports dealing with the plaintiff's psychiatric condition from shortly after his return from Vietnam. Elucidation, therefore, of those symptoms does not seem to be a significant problem in the case: the substantial problem is that of causation. It is the other symptoms that the plaintiff asserts affecting more generally his well-being and ability to undertake worthwhile employment that are more significant but, by that very token, much less likely to have been observed by persons whom he came across either socially or otherwise unless they happened to be close acquaintances.