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[2006] NSWSC 29
Supreme Court of NSW
2006-02-10
Bell J
Original judgment source is linked above.
The applicant attended a conference with a solicitor from Hollows Lawyers conducted on 7 February 2001. I am satisfied that he gave an account of his symptoms in that interview. It was not put to the applicant that he had falsely asserted that all his problems occurred after the collision in his discussions with Mr Wilks or Dr Hopwood. In these circumstances, while an issue may arise as to the propriety of the advice, I do not consider the assertion made in the solicitor's letter to be material to my determination of this application.
64 In considering the question of whether the respondent has been prejudiced as the result of the difficulty in obtaining witnesses who may be able to comment on the applicant's conduct and demeanour in the period after the collision, I note that the respondent has obtained proofs from a number of prospective witnesses: · Peter Jepson who has known the applicant since the early 1970's. He describes quite frequent contact with the applicant. He is in a position to comment on the applicant's conduct and demeanour and extent of his drinking over a period in excess of thirty years. · John Jenkins, was employed by Hitachi Sales to take over from the applicant at the time of the applicant's retirement. Mr Jenkins worked for the applicant for three weeks to a month before taking over the position. Thereafter he had ongoing contact with him for some years. He is able to comment on the applicant's demeanour in the late 1990's and he gives an account of the applicant's drinking habits in the period of their association. · Edward Gladman, was a representative for various electrical firms and came to know the applicant when he took up his role as the area representative for Hitachi Sales. Mr Gladman is able to comment on the applicant's drinking pattern and demeanour at social functions. · John Forrest, a salesman, knew the applicant in the period between 1991 and 1996. During this time Mr Forrest had frequent contact with the applicant. He comments on the applicant's demeanour and observations that he made of his alcohol consumption. · Peter Rose, the former State Manager of Hitachi, Queensland, for the period 1980 to 1998. Mr Rose is able to comment on the applicant's performance in his capacity as the country representative for Hitachi, Queensland. Mr Rose travelled every quarter to North Queensland to spend around three days with the applicant, making calls. He is able to comment on the applicant's drinking pattern and conduct when mixing with dealers. 65 The applicant's son, Scott, has provided a lengthy proof to the respondent's solicitors. Scott was aged three years at the date of the collision and is not able to comment on any change in his father as the result of it. However he is able to comment generally on his father's personality, habits and behaviour in the years after his discharge from the navy.
66 To the extent that the applicant's history includes that in the years following the collision he has engaged in excessive drinking, and exhibited irritability, social avoidance and the like, it seems to me the respondent has material available to it to permit this to be tested. I am mindful that there is an absence of witnesses able to comment on whether the applicant's heavy drinking and irritability was evident in the period following the collision and appeared to be a change from his conduct prior to it. However, in light of the acceptance of the applicant's credit I do conclude that this constitutes significant prejudice.
67 In addition to the applicant's claim for the lost chance of having qualified for DFRDB entitlements, he pleads that he has suffered economic loss by reason of impairment in his capacity to earn income. This claim has not been particularised. It was not clear from the applicant's evidence that any impairment is said to have been productive of actual loss. The respondent submits that it is significantly prejudiced in meeting the unparticularised claim for economic loss. 68 The respondent contended firstly that there are thirty-one years for which no employment records are available and that no records relating to the applicant's qualifications, studies, courses undertaken, or the manner in which his work was conducted. As earlier noted, the applicant left school in Year 8 and commenced employment as a trainee salesman. It appears that on leaving the Navy in 1965 he pursued a career in sales and was, by and large, in regular employment in this capacity until his retirement at the age of sixty-five years. It is not clear what the absence of records relating to "qualifications", "studies", and "courses undertaken" is directed to. As to the manner in which his work was conducted, I note that his principal employment following his discharge from the Navy was with Hitachi and I consider there is material available to the Commonwealth permitting his performance in this employment to be assessed.
69 The applicant states that his commencing salary with Hitachi was $7,500 and that he had annual pay increases of approximately $500 a year. He also received an allowance to cover expenses. Exhibited to his second affidavit are copies of documents relating to his employment with Hitachi and his entitlement to superannuation benefits. Also exhibited to his second affidavit are Family Court documents including the consent orders made by the Court with respect to the property settlement at the time of the dissolution of his marriage. 70 The applicant has obtained copies of his income tax returns for the years 1991 to 1996. He does not have income tax returns covering the earlier period.
71 Records from Hitachi relating to the applicant's superannuation entitlements and containing a statement of his annual salary for a number of years are available. The first of these dated 7 November 1974 contains a statement that the applicant's current annual salary is $7,500. This affords some support for the reliability of the applicant's recall of his annual salary at around 1974. Annual certificates for the years commencing 1 March 1975, 1976, 1977 and 1978 do not record the applicant's annual salary but merely furnish details of his instalment contribution for the year, his death and disablement benefit and his "retirement benefit multiple". Certificates issued for the years beginning 1 March 1979, 1980, 1981, 1982 and 1983 each include a statement of the applicant's annual salary. Certificates for the years beginning 1 March 1984, 1985, 1986, 1987, 1988, 1990, 1991, 1992, and 1993 contains a statement of the applicant's "annual salary for superannuation purposes". Certificates dated 1 July 1994 and 19 September 1995 contain statements of the applicant's annual salary. In addition to the superannuation documents there are letters signed by the Managing Director of Hitachi that record the applicant's annual salary effective from 1 July 1993, 1 July 1994 and 1 July 1995. 72 Mr McKewen, an accountant, comments that the particulars furnished on the applicant's behalf as to gross income figures for the years 1974 to 1990 have been taken from the superannuation advices provided by Hitachi and that these show the applicant's annual "salary for superannuation purposes" and not his gross annual salary. This is true for a number of the years to which he refers. Mr McKewen observes that a comparison between the annual "salary for superannuation purposes" and the gross income recorded in the applicant's taxation returns (where available) shows a discrepancy between the two. The income reported in the annual returns is somewhat higher than the figure given as the salary for superannuation purposes. It may be that this is explicable on the basis of the receipt of commissions or some other benefit from Hitachi. It seems to me that the material in the Hitachi superannuation documents, together with the income tax returns for the later years, is sufficient to permit the respondent to adequately test the applicant's claim for economic loss insofar as it arises out of his twenty years' employment with Hitachi. 73 There is an absence of independent evidence concerning the applicant's income in the period between 1965 and 1974. The applicant has given evidence of his approximate gross earnings during the period of his employment with Gibson Kelite (second affidavit paragraph 36). This figure is open to be assessed against the applicant's starting salary at Hitachi. I have concluded that the respondent is not without material available to enable it to form a proper assessment of any claim for economic loss. 74 It is recognised that for a trial to be fair it need not be perfect or ideal: Smith per Santow JA at [129] citing Holt v Wynter (2000) 49 NSWLR 128 per Priestley JA at 142; McLean v Sydney Water Corp [2001] NSWCA 122; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477. I have concluded that a fair trial may still be held to determine the applicant's claim. Breach of duty has been admitted by the respondent. In all the circumstances I consider that it is just and reasonable that time should be extended to permit the applicant to bring his claim.
Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed.
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Spaulding
Commonwealth of Australia
CITATION : Spaulding v Commonwealth of Australia [2006] NSWSC 29
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 CASES CITED : McLean v Sydney Water Corp [2001] NSWCA 122 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Telstra Corporation v Rea [2002] NSWCA 49
39 What a person "ought" to know or be aware of for the purposes of s 60I(1)(b) must take account of the circumstances of the particular applicant: Smith at [109] per Santow JA (with whose reasons Handley JA on this point substantially agreed) citing Telstra Corporation v Rea [2002] NSWCA 49. In Smith Santow JA observed at [109]: The basal question in relation to Mr Smith was therefore what someone so circumstanced as he was, ought to have been aware of in relation to each of the three matters in s60I(1)(a). This must take into account his mental impairment, the instructions he received from his superiors [a reference to Mr Smith's evidence that he had been instructed not to talk to anybody about the collision once they were ashore] and any other circumstances bearing upon his capacity to appreciate that he needed to consult a psychiatrist to find out if he was suffering from "any impairment of [his] mental condition" and if so, its nature and extent. 40 In his report Dr Hopwood observed at p 8: 7. Comments on difficulties Mr Spaulding may have had coming to terms with what has happened to him It is clear that Mr Spaulding has had great difficulty in "coming to terms" with the traumatic incident outlined above. Highly consistent with the diagnosis of chronic post-traumatic stress disorder he has avoided any in depth discussions or reminders related to the incident until recently. The depth of this avoidance is highlighted by his refusal to return to sea after the collision despite a long previous history of experience at sea and a successful career in the RAN being put at risk. It is very common of this avoidance, which is an essential part of the diagnosis of post-traumatic stress disorder, that it may lead to long delays in seeking treatment assistance. Essentially, this relates to fear that the arousal associated with discussing the traumatic event will be overwhelming if the individual enters treatment. I thus considered the delay in Mr Spaulding seeking appropriate psychiatric treatment consistent with the diagnosis of chronic post-traumatic stress disorder entirely. 41 Dr Hopwood commented on the applicant's significant history of alcohol overuse dating back to the time of the collision. In Dr Hopwood's opinion, the applicant has met the criteria for alcohol dependence since at least 1965. Dr Hopwood observes that alcohol dependence is a form of co-morbidity that is extremely common with PTSD. 42 In evidence the applicant showed little insight into his alcohol consumption as evidencing a problem. It was suggested to him in cross-examination that one of the reasons that he had drunk so much was to assist him to sleep, to which he responded that he used to drink because he liked to drink. When it was suggested to him that the drinking had helped him to cope he responded, "Not really. I enjoyed it" (T 85 at 9 and 11). The submission that the applicant should have sought psychiatric assistance around 1993-1994 when he was entertaining thoughts of suicide and, thus, that he ought to have become aware of the three matters listed in paragraph (a)(i)-(iii) is not one that I accept. The applicant was an alcoholic travelling salesman, who on bad days had thoughts of staging a fatal car accident. He did not act on these thoughts. I think it likely that his alcoholism impaired his capacity to appreciate the need to seek psychiatric assistance given the content of his thinking. Taking into account Dr Hopwood's opinion that I have set out at paragraph [42] above, I do not find that the applicant ought have become aware of all three matters listed in s 60I(1)(a)(i)-(iii). 43 I have concluded that the applicant is not precluded by operation of s 60I(1) from obtaining an order extending time pursuant to s 60G.
(1996) 186 CLR 541
(2000) 49 NSWLR 128