Terry v Commonwealth of Australia

COUNSEL : Plaintiff - M Joseph SC; W Walsh Defendant - P Jones SOLICITORS : Plaintiff - James Taylor & Co Defendant - Australian Government Solicitor CATCHWORDS : Extension of time to commence proceedings - ss60G & 60I Limitation Act - Voyager/Melbourne Collision LEGISLATION CITED : Limitation Act 1969 (NSW) Limitation of Actions Act 1974 (Qld) Commonwealth of Australian v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported, 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 CASES CITED : Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997) Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997) Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997) Council of the City of Sydney v Zegarac (NSWCA, unreported, 26 February 1998) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported, 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported, 6 November 1995) Holt v Wynter [2000] 49 NSWLR 148 McLean v Sydney Water Corporation [2001] NSWCA 122 DECISION : (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 6 December 1995; (2) Costs are reserved.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21242/95 - DAVID JON TERRY v COMMONWEALTH OF AUSTRALIA

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

1 MASTER: By notice of motion filed 6 December 1995 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 26 October 2000. The defendant relied on affidavit of Con Ktenas affirmed 6 June 2001. 2 I observed the plaintiff carefully when being cross examined and I formed the view that he was a truthful witness. He had a good recollection of events and gave evidence in a straight forward manner. He walked with the assistance of a cane held in his left hand. For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts. (1) The plaintiff was born on 4 January 1946 and is 55 years of age. He presently resides in Langwarrin, Victoria. (2) The plaintiff enlisted with the Royal Australian Navy on 7 January 1962 at the age of 18 years. At the time of enlistment the plaintiff was in good health both physically and psychologically and was passed as fit for service in the medical examination conducted shortly prior to him entering the Navy. He drank very little alcohol and only on irregular social occasions. He had never been drunk prior to the collision. At the time of enlistment the plaintiff intended to serve with the Navy until the age of 55 years. (3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of Aircraft Handler 2nd class. (4) On 10 February 1964 the Voyager was sunk when she collided with the HMAS Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives. (5) The plaintiff was off duty at the time of the collision and was situated in 2 foxtrot port mess deck sitting on a bunk. He felt the ship shudder violently and then felt a great thud. One of the older hands shouted "a plane must have hit the deck" and two other men came running into the mess and shouted "the ship had run aground". It was the plaintiff's first trip to sea and he had only been at sea a few days. He was bewildered and confused and was afraid. Then the plaintiff heard the pipe "all hands to emergency stations". He was panicky and he rushed to a sponson on the port side of the ship and then went up to the flight deck. Whilst the plaintiff was in the armourment sponson he heard a very loud scraping of metal and men yelling and screaming. (6) The plaintiff fell in on the flight deck in accordance with his flying station emergency procedures. The plaintiff had to proceed single file in the pitch black from the sponson, up a ladder to the catwalk deck, up a ladder to the flight deck. He was directed to help clear debris from the flight deck to allow emergency flying operations to take place. The plaintiff did this task with another member of the crew, Leading Airman Nicholls, who picked something up off the flight deck which looked like a piece of flesh. The other sailor showed it to the Petty Officer Price in charge who told him to throw it over the side. The plaintiff was horrified by this and stated that he seemed to be continuously in a state of shock and fear. (7) The plaintiff was told that the HMAS Melbourne was taking a lot of water and that there was fear that the bulkheads may not hold and that the ship would sink. The plaintiff felt continuously in fear of his life as he continued to clear the deck. (8) Later the plaintiff helped with flying operations during the night, bringing survivors on board. He also help some of the survivors into the hangars. He observed that the survivors were covered in oil. Some were vomiting up oil, some were crying out in pain and some were naked. The plaintiff felt in a high state of anxiety and near panic as he continued his duties. The plaintiff returned to his mess early in the morning the next day but could not sleep. (9) During the Melbourne's return journey to Sydney, the plaintiff felt that the trip took an eternity and he was fearful that the bulkheads would not hold, that the ship would sink and he would drown. When the Melbourne returned to Sydney, the plaintiff was given shore leave. He headed straight for a hotel and got drunk. He was abused on shore by members of the public. The plaintiff felt angry, confused and depressed. (10) After the collision the plaintiff began to drink heavily on a regular basis. He always drank to get drunk. He drank six to eight schooners per night on shore leave. He became aggressive. On several occasions he was disciplined because of alcohol related behaviour. The plaintiff was anxious and irritable. He had mood swings and was depressed. The plaintiff became angry at the slightest irritation and he had nightmares about the collision and would wake up sweating profusely. His symptoms caused problems with his marriage and with friends. (11) After the collision and whilst still in the Navy the plaintiff would become anxious when confronted with new environments especially on new postings and on promotions and he had a fear of not being able to succeed. He was afraid of being at sea and in confined spaces below the water line. The plaintiff would jump at the slightest sudden noise or movement. He thought he could cope and he channelled his anxieties into doing various courses. In May 1985, the plaintiff left the Navy. When the plaintiff left the Navy his anxiety increased. In 1986 he was employed as a buyer with Hella Manufacturing, an automotive lighting manufacturing company. The plaintiff had difficulties with his superiors and his workmates. He was aggressive and dogmatic with suppliers. Some of his superiors were Jack Craven, Ozzi Perera and Dennis Sparrow. He was not promoted within the company despite his experience. He continued drinking heavily, trying to blot out the memories of the collision. He tried to keep away from things that would remind him of the collision. (12) In 1991, the plaintiff and his wife divorced. (13) In about September 1995, the plaintiff had a discussion with a former Melbourne shipmate, who advised him to contact a solicitor, Mr Taylor. The plaintiff did so. Mr Taylor arranged for the plaintiff to see a psychiatrist, Dr Wu. This was the first and last time the plaintiff has consulted a psychiatrist. (14) On 28 September 1995 the plaintiff saw Dr Wu. Dr Wu took a thorough history from the plaintiff and they had a long discussion about the Melbourne/Voyager collision. Dr Wu informed him that he was suffering from Post Traumatic Stress Disorder (PTSD) as a consequence of his involvement in the collision. (15) Dr Wu in his report dated 28 September 1995 concluded that the plaintiff has symptoms and signs of PTSD which are residual and attributable to the collision. As a result he has sufficient compromise to cause him to have significant suffering and deficit in his social, personal and occupational function. Dr Wu was of the opinion that his back injuries do not account for his longstanding psychological problems but they do have some additive effect upon his pre-existing PTSD from the collision. Dr Wu reported that the plaintiff's deficits are significant and pronounced and that the Minnesota Multiphasic Personality Inventory 2 (MMPI-2) suggestion of exaggeration did not account sufficiently for the clinical context of his distress from recounting his experiences. (16) On 29 November 1995 the plaintiff filed a statement of claim. (17) On 6 December 1995 he filed a notice of motion seeking to extend the limitation period. (18) He currently drinks a bottle of scotch per night. He continues to have nightmares about two nights per week. Sometimes he goes a week without nightmares. The nightmares include visions of being trapped, blackness and hearing singing.

The Law 3 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. 4 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 5 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 6 December 1992. 6 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 6 December 1992); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b). 7 The plaintiff relied on s 60I (1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until he consulted Dr Wu on 28 September 1995 nor did he know that nature or extent of his psychiatric illness. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant's act or omissions until he read the statement of claim on 26 October 2000. 8 The defendant submitted that the plaintiff knew shortly after the collision that he suffered from the symptoms of PTSD and knew the nomenclature. The defendant submitted that the plaintiff knew he suffered a personal injury, the nature or extent of his injury and the connection between the personal injury and the defendant's acts or omissions within the limitation period. (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 9 Prior to the accident the plaintiff knew he was in good health both physically and psychologically. He drank very little alcohol and only on irregular social occasions and he had never been drunk prior to the collision. After the accident and prior to the expiration of the limitation period the plaintiff knew that he suffered from some symptoms. He knew that he was anxious and irritable, had mood swings and was depressed. The plaintiff became angry at the slightest irritation and he had nightmares about the collision and would wake up sweating profusely. He had begun to drink heavily on a regular basis and would become aggressive. The plaintiff would become anxious when confronted with new environments, especially on new postings and on promotions, and he had a fear of not being able to succeed. He was afraid of being at sea and in confined spaces below the water line. The plaintiff would jump at the slightest sudden noise or movement. However, until he saw Dr Wu, the plaintiff did not perceive that these symptoms were attributable to a psychiatric illness. 10 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. It was in September 1995 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. It is my view that the plaintiff did not become aware that he suffered a personal injury until the term PTSD was explained to him by Dr Wu in September 1995. The plaintiff has passed through the s 60I(1)(a)(i) gateway. 11 However, any knowledge the plaintiff acquired, was acquired within the time period stipulated by s 60I(1)(b).

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 12 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness. 13 I have referred to the state of the plaintiff's knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. He was unaware that he had a diagnosable psychiatric illness until September 1995 when he was first told of this by Dr Wu. 14 It is my view that the plaintiff did not know the nature or extent of his personal injury until 1995 when he became aware that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission " 15 The defendant submitted that the plaintiff's evidence that he did not know that a statement of claim was filed in the Victorian Supreme Court should not be accepted. 16 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The plaintiff was asked whether he was aware that his prior solicitors filed a statement of claim in relation to the collision in the Victorian Supreme Court. He vehmently denied any knowledge of this and denied that he ever saw a Victorian statement of claim (Ex 1). I accept this evidence. 17 The plaintiff submitted that it was not until he read the statement of claim which he swore in his affidavit was on 26 October 2000, and specifically read the particulars of negligence, that he became aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents. The defendant submitted that because the plaintiff knew shortly after the collision that there was a possibility that either one or both ships steered off course. He was aware of the connection between the personal injury and the defendant's acts or omissions. 18 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 19 In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows: (a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so; (b) Failing to correctly carry out orders transmitted from Melbourne to Voyager; (c) Failing to correctly receive orders transmitted from Melbourne to Voyager; (d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne; (e) Failing to correctly transmit as orders, signals received from Melbourne; (f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne; (g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne; (h) Failing to alter the course or speed of Voyager in time to avoid a collision; (i) Failing to maintain a constant and efficient watch; (j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur; (k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne; (l) Failing to warn Melbourne that a collision was imminent; (m) Failing to give right of way to Melbourne; (n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition; (o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe; (p) Failing to maintain any or any adequate lookout. 20 Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. 21 The plaintiff gave evidence that he had thought that there was a possibility that one or both of the ships steered off course to have caused the collision. He did not follow the two inquiries although he was aware that some his shipmates had to give evidence at one of the inquiries. Aside from that he never thought about it. This general knowledge does not equate to knowledge of the specific particulars of negligence as set out in paragraph 5 (a) to (p) of the statement of claim. 22 I accept that it was not until 26 October 2000 at the earliest, when the plaintiff read the statement of claim that 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)(iii) gateway. 23 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 24 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. 25 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995). 26 The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. 27 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that on 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 [2001] NSWCA 122, 20 April 2001. 28 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 37 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. 29 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. 30 The defendant submitted that they are actually and significantly prejudiced because of a lack of medical and employment records including those of the defendant. The defendant's solicitor, Mr Ktenas, deposes in his affidavit that the plaintiff's service records in particular his RAN 75 file cannot be located. However, there is an extensive bundle of medical records from the Navy covering the years the plaintiff spent in that service (Ex A). 31 The defendant has subpoenaed to Dr L K Tonkin, Dr L J Goodison, Dr Lowther, Freemasons Hospital, Dr L A Hughes, Dr J W Dickman, Hella Manufacturing, Peninsular Hospital, Dr I Hanan, Orthotic and Prosthetic Centre, Dr A V Smith, Dr C Jones, Bays Nursing Home, Dr D Failes, Dr W E Swaney and Dr G Cato. They were returnable on 12 February 2001. They have not produced any records. At first glance, this seems to create prejudice. However, it is no known what follow up action was taken to see why there was no production. Many of these records relate to the three back operations, including a spinal fusion, that the plaintiff underwent. The plaintiff is not claiming for injuries to his back but rather for psychiatric injuries. However, the back injuries effect the plaintiff's loss of earning capacity. Since leaving the Navy, the plaintiff has consulted three general practitioners. Firstly, he consulted Dr Graeme Cato from 1985 to 1994. The plaintiff is not aware whether Dr Cato is still practising. The plaintiff moved house and then consulted a practice in Frankston. There he saw, firstly, Dr Amenio, who has retired, and secondly, Dr Latham who took over Dr Amenio's patients. The plaintiffs' current general practitioner is Dr Amenio and it would appear that the medical records relating to the medical practice at Frankston are available. 32 Dr Wu has died. No doubt there will be an issue at trial as to whether this report can be tendered as an exhibit. In any event, Dr Wu cannot be cross examined. The plaintiff has only had one employer since leaving the Navy in 1985 aged 36. He was employed by Hella Manufacturing between 1985 and 1996. He suffered a back injury in that employment and is in receipt of workers compensation payments. He has produced copies of tax returns from 1984 to date (Ex B). 33 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. Costs are reserved. 34 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 6 December 1995.

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