Stringer v Commonwealth of Australia

CATCHWORDS : Extension of time to commence proceedings, ss 60G and 60I Limitation Act 1969 (NSW) - Voyager/Melbourne collision LEGISLATION CITED : Limitation Act 1969 (NSW) - s 14, ss 60G & I BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 CASES CITED : Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Gordon Murray Stringer (Plaintiff) PARTIES : The Commonwealth of Australia (Defendant) FILE NUMBER(S) : SC 20749/2001 Mr J L Sharpe (Plaintiff) COUNSEL : Mr Burbidge QC with Mr Dicker (Defendant) Ms L Veldman, Hollows, Melbourne, Victoria SOLICITORS : (Plaintiff)

Ms A R Fisher, Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20749/2001 - GORDON MURRAY STRINGER v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings, ss 60G and 60I Limitation Act 1969 (NSW) - Voyager/Melbourne collision) 1 MASTER: This is an application by Gordon Murray Stringer for an extension of time within which to bring proceedings against the Commonwealth of Australia ("the Commonwealth") to recover damages for personal injury he says he sustained as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. The tragic events where the Voyager sank and 82 men aboard the Voyager lost their lives are well known. 2 The plaintiff relied on his affidavits sworn 30 January 2001, 30 May 2001, 30 April 2004 and 10 November 2004 and an affidavit of David Bryan Forster sworn 19 April 2004. The defendant relied on two affidavits of Marcus Jafari sworn 30 August 2002 and 1 August 2003, three affidavits of Alan Jeffrey Melrose sworn 11 February 2004, 6 May 2004 and 18 June 2004 and an affidavit of Donna Ann Robinson sworn 16 November 2004.

The law 3 By s 14 of the Limitation Act 1969 (NSW) (the Act) a cause of action founded on tort, as this one is, is not maintainable if brought after the expiration of a period of six years running from the date on which the cause of action first accrues. The statement of claim was filed after the expiration of that period. 4 Section 60G of the Act empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". In such circumstances, the onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a) of the Act, it must be shown that it is just and reasonable to make an order. 5 The relevant provisions of s 60I of the Act are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that:

(a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 6 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii) thresholds. After a robust cross-examination, the defendant's counsel did not submit that the plaintiff did not satisfy the threshold criteria.

Whether the plaintiff has proved that "he did not know that a personal injury had been suffered"; Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered"; Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 7 I carefully examined the plaintiff while he was being examined and cross-examined and formed the view that he was giving truthful evidence. At times when recounting the events of 10 February 1964, the plaintiff became visibly upset. 8 The plaintiff joined the Navy when he was 15 years of age. He was 16 years of age at the time of the collision. Mr Stringer had only been at sea a few days as a member of the crew (an ordinary seaman) of the "Melbourne" when the collision occurred. There is a photograph showing the plaintiff on board the Melbourne entering Sydney Harbour after the collision. He is the one wearing the cap [Ex B]. 9 At the time of the actual collision the plaintiff was sitting in the forward café, watching the movie "Some Like it Hot" with Marilyn Monroe. While Sugar Kane (Marilyn) was stepping out of the lift in the movie, the plaintiff was thrown off his stool. He recalled the call piping "all hands to emergency station" and the ship being shut down. The plaintiff was ordered to go to the boat space on the port side of the ship. He recalled having an initial thought that the ship was in some form of a fog [see account in the report of Dr Hopwood 16/11/00]. He has recollection of giving a hand to assist one survivor up the ladder and handing out blankets on the deck. To some extent this current recollection is consistent with answers to questionnaire he completed shortly after the collision (namely 25 February 1964) where he stated that he was in the forward café, he helped lower the forward ladder and then helped survivors on board and handed out blankets to survivors on deck. 10 From 1964 to 2000 the plaintiff did not give any conscious thought to the collision or the events referred to in the above paragraph. After the accident, the crew were ordered not to speak about the collision. He never did. 11 It was only when on 26 May 2000 when the plaintiff read an advertisement in the "Adelaide Advertiser" regarding the Melbourne/Voyager collision that he contacted his solicitors. On 7 June 2000, Mr Forster, a solicitor met with the plaintiff at the Travelodge, Adelaide. This was the first time that the plaintiff was asked to recall the events surrounding the collision. As the plaintiff started to recall events surrounding the collision at this meeting, he became very tearful and upset. The solicitor took him down to the coffee shop and bought him a coffee. The plaintiff's solicitor arranged appointments for the plaintiff with Robert Wilks a clinical psychologist and Dr Malcolm Hopwood a psychiatrist. 12 Dr Hopwood concluded that the most appropriate diagnosis for the plaintiff's current complaints were that of an Acute Dissociative Episode related to the Voyager/Melbourne collision and the form of difficulty that the plaintiff had recalling details of stressful event was not uncommon. Dr Hopwood stated that it was difficult to determine if the plaintiff's subsequent alcohol abuse and difficulties in relationships were related to the collision. He stated that there was no strong evidence from the plaintiff's developmental history of previous psychiatric history to suggest other predisposing factors to that pattern. Dr Hopwood was of the opinion that the plaintiff did not at that stage meet the criteria for any diagnosis such as Post Traumatic Stress Disorder (PTSD), Major Depressive Illness or current alcohol problems. 13 Mr Wilks advised the plaintiff to see his general practitioner Dr D M Allen. Mr Wilks spoke of a diagnostic dilemma. Dr Allen then referred the plaintiff to a psychiatrist, Dr Graham Barrow at the Adelaide Clinic. He commenced psychiatric treatment in about July 2000 with Dr Barrow, which it continued until December 2000 when Dr Barrow suffered from a stroke and could no longer provide him with treatment. The plaintiff's file was then transferred to Dr John Wurm, psychiatrist, at the same clinic. Dr Wurm has diagnosed PTSD. The plaintiff has attended Dr Wurm on a fortnightly basis from February 2001 to present. 14 Before consulting with Dr Barrow the plaintiff was not aware that he was suffering from PTSD as a result of the collision. He was not aware that his behavioural problems could be explained by way of a psychiatric disorder caused by his experiences on the night of the collision. I accept that it was not until June 2000 at the earliest, when the plaintiff consulted doctors that he became aware that firstly he suffered a personal injury, secondly, that he became aware of the nature or extent of his personal injury and thirdly, he became aware of the connection between the personal injury and the defendant's acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(i), (ii) and (iii) gateways. 15 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether in the circumstances it is just and reasonable to extend the limitation period.

Just and reasonable 16 The plaintiff relies on s 60G and s 60I (1)(a)(i)(iii) of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that in the circumstances it is just and reasonable to make an order. The major issue in this case is that of prejudice. 17 The defendant did not make a submission that the plaintiff had no real case to advance but rather that it is actually prejudiced and will not obtain a fair trial, particularly in relation to the plaintiff's claim for economic loss. 18 The principles concerning prejudice have been considered in Holt v Wynter in which the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 stated that the effect of the High Court decision in Taylor 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. Fairness is a matter of degree. The concept of a fair trial is a relative one; to be fair it need not be ideal - see McLean v Sydney Water Corporation. 19 I accept that with the passing of 40 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 20 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean (1996) 41 NSWLR 389. 21 After the collision, the plaintiff remained in the Navy until 1983, almost 20 years after the collision. There are extensive Navy records for the plaintiff still in existence. They cover such varied topics as what crockery and cutlery he and his wife owned when they moved house. There are detailed records of his medical treatment in existence. 22 The plaintiff claims that but for the collision he would have continued to progress through the Naval ranks with promotion ultimately to senior commander. The plaintiff alleges that he would have retired at about age 55 years in this senior position and would have been entitled to appropriate DFRB entitlements and other service benefits. At trial, it will be necessary to examine what steps the career path entailed and how many positions on each promotional level were available. 23 After the plaintiff left the Navy in 1983 he was employed by Telecom, Adelaide as a technician from June 1983 to September 1983; Thorn EMI Electronic, Salisbury as a technical officer from late 1983 until 1989; from late 1989 to June 1990 he worked for Interior Joinery & Furniture, Kilburn as a planner; from 1990 to June 1995 the plaintiff worked for Havler De Havilland, Salisbury as a quality manager and from 1995 to 2003 the plaintiff was employed as a marketing director with Advance Systems Pty Ltd, Hindmarsh. Jenkins Engineering currently employs the plaintiff. 24 The plaintiff does not have wage records from those employers but copies of his tax returns for these periods are in existence. The defendant has subpoenaed wage records and personnel files from the prior employers but so far only Telecom has supplied some material. Some of the prior employers' records no longer exist. 25 The defendant refers to the following documents as being crucial to its case which are missing or have been destroyed: File 10/93935 entitled "Promotions" was raised on 19 February 1979 but may have included papers from previous promotion files and documents for the administration of the plaintiff's promotion. It may also have included reports on the plaintiff's suitability for promotion, that is, performance reports, divisional officer and commanding officer comments on his pending promotion, including details of delay if promotions were delayed for any reason; File 19/93935 entitled "Resettlement of Member" raised on 27 January 1981 would likely have contained documents administering the plaintiff's resettlement preparations for discharge from the Navy, including requests and nominations and perhaps financial documents relating to that training; File 351/20/1869 entitled "Correct Date for promotion" raised on 24 January 1966 would likely have contained documents for administration of the plaintiff's promotion, and would likely have included details of time gained from good performance or time lost for poor performance. If promotion was delayed for disciplinary reasons there would have been papers on this file explaining this. Commander Hartcher [minutes dated 16/1/01) detailed the difficulties he would face analysing the plaintiff's career. The plaintiff was considered for commissioned rank and appeared before an initial selection board. There is a document to this effect. The plaintiff agreed that he was told to obtain a mathematics qualification before he could proceed further. He did not do this. The Court would need to assess the plaintiff's promotional path and assess what he would have earned less than his current earning capacity. It is my view that the Navy will still be able to carry out this task. 26 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. 27 Costs are discretionary. In Holt v Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The opposition was not wholly unreasonable. Costs are reserved. 28 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident, which occurred on 10 February 1964 up to, and including 3 September 2001.

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