The Commonwealth of Australia v Duffy

Mr C R R Hoeben SC with Mr D Brogan (Appellant) COUNSEL : Mr M Joseph SC with Mr W Walsh (Respondant) Australian Government Solicitor (Appellant) SOLICITORS : James Taylor & Co Agent Holman Webb (Respondent) CATCHWORDS : Appeal from Master - Ss 60G and 60I Limitation Act - plaintiff ought to have been aware personal injury had been suffered - plaintiff ought to have been aware of nature of personal injury suffered - plaintiff ought not to have been aware of connection between personal injury and defendant's act or omission - no prejudice to defendant - appeal dismissed. LEGISLATION CITED : Ss60G and 60I- Limitation Act 1969 Drayton Coal Pty Ltd v Drain (NSWCA, unreported, 22 August 1995) CRA Limited v Martingago and Ors (1995) 39 NSWLR 13 CASES CITED : Harris v Commercial Minerals Limited and Ors [1995-1996] 186 CLR 1 Itec Graphix Pty Ltd v Elliot [2002] NSWCA 104 Commonwealth of Australia v Nelson (2001) 53 NSWLR 116 DECISION : (1)The respondent is granted to 14 August 1997 an extension of time within which to commence proceedings for damages in respect of an incident which occurred on 10 February 1964.; (2)Appeal dismissed.; (3)The appellant to pay the respondent costs of this appeal.

• 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: This is an appeal against the decision of Master Harrison extending the time within which Norman Charles Duffy might bring proceedings against the Commonwealth of Australia. 2 The respondent to the appeal, whom henceforth I shall call the plaintiff, was a member of the Royal Australian Navy and serving on HMAS Melbourne when, at about 9:30pm on 10 February 1964, during the course of naval exercises off the New South Wales coast, it collided with HMAS Voyager, cutting it in two. Voyager sank and some 82 officers and crew died. Rescue operations followed and, in those operations, many of those serving on Melbourne were much involved. 3 The plaintiff's evidence concerning the events of that evening are set out in the affidavit he swore for the purpose of the application to extend time. Further evidence was given before the Master on 21 September 2001. The evidence of the plaintiff was not challenged, except on some relatively minor matters, but it is in respect of those the appellant, whom I shall henceforth call the defendant, relies in support of submissions that the Master was in error. 4 The Master gave what was, if I might say so, a careful and detailed judgement in which the facts were fully explored and her findings of fact set out with clarity and in a manner which has been helpful not only to me but to counsel in presenting their arguments. Additionally, the Master, as is conceded, correctly set out the law she was required to apply. 5 The notice of appeal against the Master's decision contains three grounds. The first two of those grounds were abandoned and the only argument addressed to me is based on the third ground. That ground is: That the learned Master erred in law in holding that it was just and reasonable to extend the limitation period pursuant to section 60G(2) because the learned Master failed to take account of the conclusion that she ought to have reached under section 60I(b). (Sic: 60I(1)(b)). 6 Section 60G of the limitation Act authorises a court to extend the limitation period if it decides that it is just and reasonable to do so, but subject to the requirements of Section 60I. Section 60I of the Limitation Act provides as follows: (1) A court may not make an order under section 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 the 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.

7 The defendant does not challenge the Master's finding that the plaintiff subjectively satisfied the three criteria of Section 60I(1)(a). 8 The defendant's argument is that the plaintiff has failed to demonstrate, in accordance with section 60I(1)(b), that his application to extend time was made within three years after he ought to have become aware of all three matters listed in paragraph's (a)(i) to (iii) of Section 60I(1). This is an objective test. 9 At the time of the collision, the plaintiff was cutting the hair of a crewmember. He heard the pipe "full astern" come over the ship's speakers and immediately he heard a loud bang and experienced a sudden and violent jolt which, he said, "sent me flying, causing me to hurt my knee as I crashed to the floor". He then heard the pipe "collision stations" and realised that a terrible event had occurred. 9 In her decision, the Master relevantly found that, after the plaintiff was assigned to HMAS Sydney in 1964 following the collision, he began drinking heavily each day. He did this in an attempt to rid himself of the terrible thoughts of the collision. He also began to smoke heavily. He lost his motivation to remain in the Navy and had a constant fear of being sent to sea. He was experiencing nightmares, had lost energy and drive and experienced difficulty in concentrating and he felt low. He also developed a feeling of guilt, seemingly based upon the fact that he was on Melbourne and survived, but friends who were on Voyager had died. 10 He determined that he would quit the Navy and set out to do so by falsely suggesting that he was homosexual. As a consequence, he was seen in consultation by a psychiatrist employed by or on behalf of the Commonwealth and was hospitalised at Balmoral for a period of a fortnight. He refrained form mentioning to the psychiatrist anything about his nightmares and other difficulties which I have recited. He was discharged from the Navy on 29 June 1965. 11 In 1972, he was involved in a serious motor vehicle accident, which resulted in partial bilateral leg amputation. In his affidavit he said that this accident was an attempt at suicide because "he felt so down" and "wanted to end it all". 12 In 1974, pursuant to an arrangement made by his wife, because of his heavy drinking, he saw a psychiatrist at the Warrnambool Base Hospital. He failed to inform that psychiatrist of the emotional symptoms he was experiencing; neither did he link his alcohol abuse and heavy smoking to the collision at sea. 13 In 1980, he became entitled to receive a disability support pension. He remarried, but that marriage lasted for only a short period. For seven years thereafter he resided in a caravan park. 14 In 1992, he experienced a myocardial infarction and, in 1996 he came into contact with his solicitor who later arranged for him to see a psychiatrist. On 26 November 1997, he saw Dr Holwill, the psychiatrist, in consultation and was afterwards informed for the first time that he was suffering post-traumatic stress disorder which was related to the collision at sea. He was also informed that his depression, anxiety and alcoholism were results of the collision. 15 His statement of claim was filed on 4 August 1997. 16 The first of the arguments addressed to me is that the plaintiff ought to have become aware that the injury he suffered was relevantly related to the collision before the time referred to in Section 60I had expired. 17 The Master, in her reasons for extending time, referred to the fact that following the collision, two Royal Commissions had been conducted. She observed that the plaintiff distanced himself from the inquiries as he did not wish to think of them at that time. She noted that "he presumed that the Commissions were about the accident but he was not interested in any outcome". He made no inquiry concerning the findings of the Royal Commissions. The Master observed that general knowledge did not equate to knowledge of specific particulars of negligence which were set out in statement of claim and which she repeated in her reasons. She accepted that it was not until 19 October 2000 at the earliest, when the plaintiff first saw a copy of the statement of claim, that he became aware of the connection between the injury he had suffered and the defendant's alleged acts and omissions. 18 The plaintiff's solicitor, I think it appropriate to record, is the solicitor on the record for a large number of seamen who were on Melbourne at the time of the collision and one, I think reasonably, infers that he made arrangements for psychiatric examination to determine the wisdom of persevering with claims on behalf of the plaintiff and fellow seamen. 19 The principles to be applied in determining whether a plaintiff ought to have been aware of the connection between his or her injury and a defendant's act or omission have been the subject of consideration in a number of cases, some of which have been referred to in argument. In Drayton Coal Pty Ltd v Drain (NSWCA, unreported, 22 August 1995), the Chief Justice said: In the evaluation of a contention that a plaintiff was unaware of the connection between the plaintiff's act or omission, a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at trial. The mere fact that the plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of Section 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission which constitutes the substantial ground upon which reliance will be placed is sufficient to satisfy Section 60I(1)(a)(iii). In CRA Limited v Martignago and Ors (1995) 39 NSWLR 13, Clarke JA, speaking of Section 60I(1)(a), said at 19: If the plaintiff establishes that he or she was unaware of the relevant fact and satisfies the condition in par (b)…he or she will be entitled to ask the Court to exercise its discretion in favour of the making an order. That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the Master held…would not be relevant. In my opinion, it would be a highly relevant matter for consideration in the exercise of discretion. See also Harris v Commercial Minerals Limited an Ors [1995-1996] 186 CLR 1, especially at 14 and Itec Graphix Pty Ltd v Elliott [2002] NSWCA 104. 20 It was argued by Senior Counsel for the defendant that had the plaintiff aquatinted himself with the proceedings and the reports of the two Royal Commissions, as he should have done, he would have become aware of the negligent acts and omissions upon which he bases his action. With all respect to learned and gallant Senior Counsel for the defendant, I think such an argument should be rejected. I cannot agree the plaintiff should have acquainted himself with the proceedings and reports of the two Royal Commissions, nor does it follow that had he done so he would have become aware of the defendant's acts or omissions. 21 The proceedings of neither Royal Commissions are before me, but it has been properly and fairly conceded on the defendant's behalf that the second Royal Commission examined the findings of the first and made findings which differed from some of those which had first been made. The collision and the Royal Commissions remain matters of controversy and about them there was and is no general consensus. The plaintiff was cross-examined about his disinterest in the proceedings before the Royal Commissions and his evidence in this regard was accepted by the Master. The plaintiff's failure to acquaint himself with the proceedings and findings of the Royal Commissions is understandable, unsurprising and acceptable. 22 It is not unreasonable to accept that the plaintiff had neither the means nor the opportunity of considering the reasons for the collision, especially when they were matters of controversy. Like the Master, I am of the view that the plaintiff at all relevant times was unaware of the connection between the personal injury he suffered and the defendant's alleged act or omission. [Section 60I(1)(a)(iii)]. 23 In the event that it becomes material hereafter, I think it appropriate to consider whether the plaintiff ought to have been aware within the time prescribed by Section 60I(1)(b) of the fact and the nature or the extent of personal injury suffered [Section 60I(1)(a)(i) and (ii)]. Section 60I (1)(b) involves objective considerations. 24 In this connection, it is appropriate to have regard to the decision of the Court of Appeal Division of this Court in Commonwealth of Australia v Nelson (2001) 53 NSWLR 116. This was a case in which a member of the Royal Australian Navy alleged that he suffered a post-traumatic stress disorder as a result of an event which occurred on a submarine. He had experienced symptoms and displayed signs upon which a psychiatrist subsequently diagnosed post-traumatic stress disorder. The event in respect of which he sued had occurred on 1 March 1981. He became aware of the diagnosis in January 1995. It was significant that in the intervening years, he had consulted a psychologist and a psychiatrist in respect of symptoms which were manifest and which were troubling him. 25 Mr Nelson, like the plaintiff in this action, was aware of all of the symptoms he was suffering. Mr Nelson, like the plaintiff, was not aware that those symptoms could be characterised as post-traumatic stress disorder. Nevertheless, had the present plaintiff raised with either of the psychiatrists whom he saw before the consultation with Dr Holwill, or with others competent to give advice, and had he given to them the history which is recited in his affidavit, was in evidence before the Master and is recorded in the report of Dr Holwill, the likelihood is he would have been advised that he was suffering from a non-organic response to a horrible event. He would have become aware he had suffered personal injury and of its nature or extent. 26 True it is, as is conceded, that post-traumatic stress disorder did not become a recognised psychiatric illness by that name until the 1980s, but the fact remains that had he spoken of his symptoms he would have been advised that he had suffered an injury and he would have been made aware of its nature. 27 A reading of the judgement of Rolfe AJA in Nelson's case reveals a significant similarity between the facts of each case and his conclusion, with which the other members of the Court agreed, is one which, if I might respectfully say so, should apply to this case. 28 My view is that the plaintiff ought reasonably to have inquired of the doctors whom he consulted while at Balmoral and in Warrnambool Hospital of the nature of his symptoms. They were such that consultation with medical practitioners in the field would have provided him not only with knowledge he had suffered injury but also its nature. In this respect, I have come to a conclusion different from that expressed by the learned Master. I am, however, satisfied that the plaintiff has made out a case under Section 60I(1)(b) even though he ought to have become aware of the matters listed in paragraph (a) (i) and (ii), because he was not, nor ought to have been, aware of the matter listed in Section 60I(1)(a)(iii). 29 The next matter I am required to consider arises by the application of Section 60G of the Limitation Act. Before the Court extends time it must determine whether it is just and reasonable to do so. The basis upon which the defendant submits it was not just and reasonable to extend time is that material relating to the plaintiff's claim for economic loss is not available, and that the plaintiff failed to fulfil all the requirements of Section 60I(1)(a) and (b). 30 One considers first that there is presumptive prejudice to the defendant. 31 Insofar as the plaintiff's claim for economic loss is concerned, the defendant argued that his service records have been destroyed. This is not entirely correct, if it is correct at all. In evidence before me are service records of the plaintiff. I have not looked at them, having informed counsel that I would look at only such material to which my attention was specifically directed. Nevertheless, I would think that means are available to the defendant to ascertain what the plaintiff would have earned, had he remained a serving member of the Navy. 32 He has given a history of his post-Navy employment. There is no evidence before me that the defendant has taken any step to ascertain relevant information concerning the plaintiff's post-Navy employment. Moreover, the Master, in her judgement, set forth the identities and places of business of those whom the plaintiff said employed him. Those nominated are alive and contactable and it would be quite easy to obtain evidence concerning the nature of his employments and his remunerations. The defendant is not prejudiced in meeting the plaintiff's claim for economic loss. 33 The remaining question is whether, having failed on two of the three criteria in section 60I(1)(a), it is just and reasonable to extend the time. This involves the exercise of a discretion. It is a discretion to extend time, not to refuse to do so. 34 In my view, it is just and reasonable to extend time. 35 There is no basis upon which to find the defendant was prejudiced or disadvantaged in resisting the plaintiff's claim. There is a significant number of cases pending in the Court concerning the collision between Melbourne and Voyager and the circumstances of the collision have been inquired into. No compelling reason has been advanced why this case should not proceed. In saying this, I do not mean to suggest that the defendant carries the onus. It is upon the plaintiff throughout. Because of the material available to the defendant on the issues both of liability and quantum, the plaintiff has satisfied me that no prejudice will be occasioned to the defendant by permitting his action to proceed and the defendant may have a fair trial. 36 I am of the view that it is just and reasonable that the time be extended. In my view, the order of the Master should be confirmed and the appeal dismissed. The defendant will pay the plaintiff's costs as agreed or assessed.

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