Williams v Commonwealth of Australia

The immediate aftermath 4 The applicant said that, as the Melbourne limped back to Sydney, he was stunned. There was a very sombre mood on the ship. For a few days after berthing at Garden Island, the crew attended to deck maintenance and, before they left the ship, they were ordered not to speak of the disaster. (There was some dispute as to whether such an order was given. I accept the plaintiff's evidence that he believed there was such an order. In the present context I do not think, however, that this is a significant matter.) The plaintiff said that the crew were granted admission to the Sydney Cricket Ground to watch Australia playing South Africa. They were ordered to wear their uniforms. As they walked out of Garden Island, they found themselves confronted by a mob screaming that they were "murderers". He felt outraged and bewildered by this. The plaintiff said that before he joined the Navy he had drunk alcohol but usually in a sporting context and never to excess but that on this day he tried hard with the other sailors "to drown my sorrows in alcohol" commencing that binge at the cricket. After the cricket, when he and other sailors went to a hotel, there were more taunts that "we were murderers". 5 The plaintiff says that it was after the collision that he began to drink excessively and from this time also he started to smoke cigarettes. He said that was given about three weeks' leave soon after the return to port which he spent with a friend of his, also a sailor, who had been on the Melbourne. The two spent their leave together with both their families. He said that he continued drinking "far too much". He said that he was continually confronted by the images of the disaster that tormented him and that, with the benefit of hindsight, he knew that he was "trying to find some comfort, to divert my thoughts from those horrific visions and trying to make some sense of the change in my life". He said that from that time onwards he continued to drink heavily whenever he could, drinking copious quantities of alcohol on shore as he found it difficult to go to sleep and the alcohol helped to drown out the thoughts that otherwise kept him awake and preoccupied. 6 The plaintiff said that when he returned from leave, the Melbourne went into dry-dock for repairs and he continued to drink heavily, having a hangover on most days. He said that he attempted to distract himself with work, trying to blot out the awful memories of the disaster. He said he tried to cope with those problems himself and was not offered any assistance. He said that he "subconsciously resolved to bury myself in my career, to gain promotion and to leave myself as little time as possible to be preoccupied with my upsetting thoughts". It is obvious that some parts of this account, so far as the plaintiff's explanations for his conduct are concerned, is a reconstruction with the benefit of hindsight. It will become obvious that indeed the plaintiff did concentrate very much on his career, at which he was very successful, but I would not accept his explanation for doing so given in this paragraph. The most likely explanation is that he simply wished to excel at his chosen profession.

Subsequent service 7 The plaintiff remained on the Melbourne until 7 December 1964. At the time of the collision he was a Navel Airman but switched from the Aircraft Division to the Regulating Branch and rapidly gained promotion. He was promoted to Acting Leading Seaman on 10 June 1966, to Leading Patrolman on 10 June 1967, Provisional Acting Petty Officer Coxswain on 12 September 1969 and to Petty Officer Coxswain on 17 October 1969. The certificate of service reported his character as consistently very good and, after the collision occurred, the rating for his efficiency was usually satisfactory with superior ratings in December 1967 and October 1968. The plaintiff was promoted to Chief Petty Officer Coxswain on 9 March 1973; in the following year he was selected for officer training and sent to the United Kingdom for two years further training. In his evidence the plaintiff pointed out that this was a very exacting course, which few completed with success. In 1976 the plaintiff was promoted to Sub-Lieutenant Special Duties Executive and, on 3 January 1979, to Lieutenant. 8 The plaintiff completed twenty years' service in the Navy on 13 January 1982 and the question arose whether he should sign on again for a further period of service, a course strongly recommended by his superiors, who expressed confidence that he would gain further promotions. In his evidence, the plaintiff identified one of these senior officers as Sir David Martin, who was his captain on the Melbourne and the other, the current Chief of the Navy. However, despite this encouragement, the plaintiff did not re-enlist. The reasons for this are obscure. He ascribes the decision to his judgment being warped by the posttraumatic stress disorder which, later diagnosed, is claimed to have affected him at this time. 9 The plaintiff, at the time of his discharge, was in command of his own boat, HMAS Batano, with a crew of eighteen. He was discharged on 20 April 1982. The plaintiff said of his time in the Navy at he "succeeded well" which appears to be a fair description. At the same time, the plaintiff says that this success masked, as it were, a number of serious problems. I will come to these in due course.

After the Navy 10 Following his departure from the Navy, the plaintiff obtained employment in the Merchant Navy. He was the Master or First Officer of roll on-roll off barges for Mason Shipping, based in Cairns to 1984, then worked for TNT Bulk Carriers at Gladstone as a deck officer, third mate for about a year and, in 1986, obtained work as a relieving tug master based at Mackay and Cairns, also performing relief duties with the Department of Transport as a deck officer servicing lighthouses and performing oceanographic surveys. He spent six to eight months on a workboat and as a Tug Master on the construction of the Dalrymple Bay Coal Terminal and then as security officer. In May 1988 the plaintiff obtained full time employment as Tug Master, which continued until January 2001 when he suffered what he described as a "nervous breakdown". He said that, when he presented for work one morning, his blood pressure rose to a very high level and he felt dizzy and could not even remember the name of his tug. 11 In about 1993 the plaintiff bought a guesthouse in Mackay, which was initially managed by his wife whilst the plaintiff did all the physical maintenance, even though he was also working as a Tug Master. He sold the property in December 2003 because of his ill health and, as he was divorced, he had to employ persons to manage it for him. The plaintiff said that he obtained no money out of this business.

Personal 12 The plaintiff was married in November 1967 and has three children born in 1971, 1974 and 1975. He and his wife separated in 1997 and were divorced in 1999. He has since been in a regular relationship which has obviously been positive for him.

The plaintiff makes a claim 13 The plaintiff had been acquainted with a Mr Church from the time of his appointment to the Melbourne where Mr Church was also a member of the crew. They had met at meetings of the Naval Association when they would talk about what was then happening in their lives but, it appears, not in any depth. He said that they very rarely discussed their experiences on the Melbourne until a period later on when Mr Church told him that he was suffering from post-traumatic stress and (as I understand the evidence) was taking some legal action about it. At some point it appears that Mr Church told him that one of the reasons for his stress was his experiences on the Melbourne. The plaintiff then approached the RSL Veterans' Affairs' advocate who assisted him to make an application to the Department of Veterans' Affairs. The plaintiff said that he did not know that he had a psychiatric illness but that "things were not going well". I will deal with the plaintiff's description of his symptoms later in this judgment. On 11 July 2000 the plaintiff applied for a disability pension and medical treatment for service-related disabilities to the Department of Veterans' Affairs. I will come to the details later, but the disabilities and symptoms in respect of which the claim was made were said to be increased blood pressure, stress and anxiety, alcohol dependence and hearing loss. 14 It seems that in December 2000, the plaintiff was approached by Mr Church, who is a potential witness to be called on his behalf. The plaintiff instructed solicitors (Hollows) on 22 June 2001. The statement of claim was filed on 27 November 2001. Medical investigations 15 The plaintiff has described a number of symptoms and feelings, which have been present to a greater or lesser extent since his experiences in the Melbourne/Voyager collision. As is implicit in what I have already said, these problems did not impede his successful naval career nor, it seems, his work as a Tug Master, at least until 2001 when he suffered his breakdown. The plaintiff said in evidence that he was assessed as medically fit during his naval career and, in substance, always thought that he was fully fit for the performance of his duties. Although I will deal with specific symptoms in due course, as they were the subject of submissions, it seems to me fair to say that the plaintiff did not, so far as his own judgment went, think that he needed any medical intervention or assistance in relation to what I might compendiously call his problems or any one of them. Whether it was reasonable for him to have had this state of mind is an issue which needs to be determined, however. 16 Before dealing with that history, it is convenient to deal briefly with the medical reports that have been tendered. The plaintiff consulted Dr Holford, a general practitioner, in April 2000 but it is not clear for what condition. Between that date, however, and 16 August 2001 it appears that he complained to Dr Holford of loss of libido, loss of early morning erections, light headedness, depression and anxiety, poor concentration and periods of memory loss and loss of confidence. According to the history later taken by Dr Athey, to whom he was referred by the Department and whom he saw on 2 April 2001, the plaintiff experienced a panic attack in January 2001 and, amongst other things, could not remember what to do when about to take a new tug boat out of the port of Mackay. It appears from the history given to Dr Athey that the employer's medical officer had prescribed a small dose of the antidepressant drug Aropax. The plaintiff had been seen shortly after being placed on sick leave by Mr Langford, a counsellor/physiotherapist who found him to be "acutely distressed with self-doubt, poor self esteem and very little self confidence". Mr Langford thought that these "mental/emotional deficits were indicative of chronic stress, the causes of which were largely associated with his work/duties in the workplace environment". It seems that he had given a history to Mr Langford of serious problems over the previous eighteen years (I take it since he left the Navy). Dr Holford had also referred the plaintiff to a psychiatrist, Dr Gillman, for an opinion. Dr Gillman did no formal diagnosis, merely referring to the plaintiff's description of "non-specific symptomatology relating to anxiety and irritability under stress" and his feeling that he got some relief from current medication. Dr Gillman's report does not refer to any history (other than immediate presenting symptoms) and did not suggest that further treatment was necessary. The Department, as I have said, referred the plaintiff to Dr Athey, who saw him on 2 April 2001. Dr Athey's report refers to the plaintiff's experiences during the collision and to several other gruesome experiences. The history concentrates on the plaintiff's then state of mind and does not focus on how long any particular problem had been troubling him. The doctor noted, "there has been a slow build-up of psychiatric symptoms over many years". The doctor's summary and assessment included the following - "Mr Williams is a 56-year-old man who served in the Navy for 21 years. In this time he was exposed to a number of traumas including the Voyager disaster when he was serving on the HMAS Melbourne . He did see service in Vietnam but this appears to have been less traumatic than many of his other Naval incidents. In recent years, there has been a history of increasing panic attacks and free-floating anxiety. He has tended to deal with these by drinking alcohol to unwise limits, but he can control his drinking of alcohol if he wishes to. … My diagnosis is one of panic disorder without agoraphobia, DSM-IV Code 300.01. In this situation there is recurrent unexpected panic attacks. The panic attacks have been followed by persistent concern about other attacks, worries about the implications of the attacks, in that he does feel he is losing control and going crazy and a significant change in behaviour related to the attacks. There appears to be no specific agoraphobia. The panic attacks are not due to substance abuse, although he is drinking alcohol excessively and the panic attacks are not better accounted for by specific phobias, obsessive-compulsive disorder or post-traumatic stress disorder. He does have some symptoms of post-traumatic stress disorder in that he was exposed to some events in which others were directly threatened and he did feel a sense of horror and helplessness. This was particularly so in both the Voyager disaster and in the episode where he found a drowned seaman from his crew some days after the seaman had fallen overboard. He does have recurrent nightmares, but the other symptoms of post-traumatic stress disorder I feel are better accounted for by panic disorder with agoraphobia. It appears that he has had a long-standing history of anxiety, in a fairly mild form that he has been able to contain. On the history I obtained, it appears that there were symptoms of generalised anxiety disorder going back years, that these were of insufficient severity to interfere with his overall occupation or social functioning. It was only when the panic disorder intervened on the anxiety disorder that he was no longer able to cope. … It does appear that his anxiety attacks have been long-standing and based on the history I obtained; it is multi-factorial in its aetiology. He did have a long history of an unhappy marriage and one would expect his anxiety to improve after the marriage ended. Unfortunately this was not the case. Secondly, there appears to have been a number of incidences in his naval service which have led to anxiety and even symptoms of post-traumatic stress disorder, as described above. These appear to be more due to his naval service than due to service in Vietnam. Unfortunately most of these incidences, although very traumatic, occurred in peace time." 17 A later report of 21 October 2001 sent by Dr Athey to the plaintiff's employer's insurer following a clinical assessment of 15 October 2001, does not take the matter any further. For obvious reasons, it was focused on the issues related to his then employment. 18 Dr Hollows sent the plaintiff to see Mr Robert Wilks, clinical psychologist, for assessment in September 2001. Mr Wilks took an extensive history dealing with the plaintiff's experiences during the collision (broadly speaking reflecting the account given above) as well as his later naval and merchant Navy career. Mr Wilks noted a history of excessive drinking from the time of the collision, though not such as directly affected his work in the Navy. The summary of symptoms is in the following terms - "Mr Williams said that from 1964 onwards (i.e. "post the Voyager collision") he had experienced upset that was "progressively getting worse", culminating in his 2001 "breakdown". He said that over the years he had maintained a frenetic lifestyle, involving hard work, heavy drinking and playing rugby or other sports - "to put the shutter down and just blot things out" was his explanation of this. Mr Williams further said that from 1964 to 2001 he was troubled by "grog-inspired" crying, suicidal thoughts (once each 1-2 months) of shooting himself, irritability with his family (but a sense of withdrawal and isolation from Navy officers), late and middle insomnia, fatigue, poor concentration, palpitations, exaggerated startle to noise or touch, hypervigilance when walking about, nightmares (of the Voyager and other incidents), fear of authority and also situations of confinement and recollections of the Voyager incident. Overall, he said, he had for all those years felt "always tense, but I could become sad quickly". Mr Williams said that he "didn't understand those things until 12 months ago" when a counsellor in Mackay explained that he was unwell (but apparently did not give a specific diagnosis). He said that his 2001 "breakdown" had involved him developing high blood pressure, one day finding that his "head was spinning" and he "couldn't remember what to do" and then being put off work by his GP. Mr Williams said that he had been married from 1967 to 1998, in a relationship that was "never much good", due to his drinking and related verbal aggression and also his wife's drinking and emotional distance. He said that he had three children, now aged 26, 27 and 30 with whom he had reasonable relationships, but who "grew up seeing me away a lot … lots of grog, arguments". 19 Mr Wilks expressed the following opinion - "Mr Williams is a long-term sufferer of Post-Traumatic Stress Disorder (PTSD). This can be said in view of his exposure to an event involving loss of life in immediate reaction to which he experienced feelings of horror and upset (i.e. the Voyager collision of 1964) and after which (for 37 years) he suffered from symptoms and features involving - - "re-experiencing" of the incident (Mr Williams' nightmares and recollections of the Voyager) - avoidance of stimuli reminiscent of the incident or a more general numbing of responsiveness (his estrangement from others, avoidance of restrictive clothing and situations similar to those of 10th February 1964, sense of a foreshortened future) - heightened arousal (Mr Williams' exaggerated startle, insomnia, irritability, hypervigilance, etc.) The cause of Mr Williams' PTSD has been and remains the Voyager-Melbourne incident of 1964. This can be said in view of the commencement of his symptoms soon after that incident and the continuing link of symptom content to the events of that incident. Mr Williams has been exposed to other distressing events (death of three sailors in 1970, a tug capsizing and accusations of fault in 1985), but those seem to have produced only temporary aggravations of his underlaying continuing disorder. Mr Williams would seem to have had little or no insight into the fact that he has had a disorder, with only some partial insight supposedly being gained just 12 months ago. He appears to have coped with his condition via frenetic activity and also the use of alcohol as an anxiolytic. Given his history of prolonged heavy alcohol use, the marital and social problems which came from that heavy drinking and the fact that Mr Williams continued to drink whilst engaged in the command of sea-going vessels, the diagnosis of Alcohol Abuse can also be made in this case. That disorder has also been in place for 37 years and also can be seen as arising from the Voyager-Melbourne accident. Mr Williams' PTSD and associated alcohol abuse has caused significant social and marital dysfunction for him. He has apparently been aloof and alienated in many of his relationships, most notably in a marriage which ended after many years of limited involvement. Mr Williams' occupational progress would appear to have been less blighted by his disorders, but it would seem that both his Navy and tugboat careers came to an end due to his psychological issues. Mr Williams' PTSD and Alcohol Abuse are well-entrenched disorders, which he has only just begun to grapple with, in a limited way. On his progress thus far, Mr Williams' prognosis can only be for life-long disorder." 20 In September 2001 the plaintiff was examined by Dr William Glaser, a consultant psychiatrist. It is unnecessary to deal with that report in detail. It contains a history consistent with though somewhat more detailed than that contained in Mr Wilks' report. Dr Glaser's opinion was as follows - "Mr Williams, a fifty-six year old tug-boat master, has experienced longstanding psychiatric problems which first made their appearance after he was involved in the Melbourne-Voyager collision in 1964 and which have been exacerbated and aggravated by a number of stresses in his life since then. At the time of the collision, he himself personally witnessed the sight of the Voyager sinking and volunteered to assist with the boarding of the shocked survivors. He had the grisly and horrific experience of scooping up human brains which had been splattered over the Melbourne flight deck. At this stage, he attempted to cope with his distress and intrusive memories of these incidents by drinking heavily. Subsequent events placed him under further stress, including the tragic deaths, within a short period of time, of three members of his twelve-man crew when he was holding a responsible position on a patrol boat and his attempts to cope with his deteriorating marriage to a lady who abused alcohol. Despite considerable success in his naval career (including a promotion to officer rank) he, apparently quite suddenly and inexplicably, left the Navy almost twenty years ago. Subsequently, although he managed to follow a reasonable lifestyle, he continued to be plagued by a variety of psychological symptoms. The "final straw" appears to have occurred earlier this year, following a number of disagreements with fellow tugboat masters and a couple of enquiries (which cleared him) into alleged misconduct by himself. At present, he is suffering from a panic disorder which has been complicated by very significant alcohol abuse. As well, there are elements of post-traumatic stress disorder, indicating that this condition has probably troubled him some time in the past. His current symptoms include panic attacks (with symptoms such as feelings of his heart racing and feelings of panic), a generally raised level of anxiety, marked sleep disturbance, nightmares, intrusive memories of the Voyager disaster, recurrent ruminations about the stresses which have affected him, a loss of confidence, mild irritability, loss of motivation and difficulties with his memory and concentration. As well, he is consuming alcohol at a level that will seriously jeopardize his future physical and mental health. There have been a number of contributions to the development and persistence of this unfortunate gentleman's psychiatric problems and some of these have been discussed above. A striking feature of his history, however, is that his dreadful experiences during the Melbourne-Voyager collision appear to have set off a number of psychological symptoms (particularly the abuse of alcohol) which clearly made him increasingly vulnerable to further decompensation of his psychiatric state when he encountered subsequent distressing events in his life. As well, specific symptoms related to the Melbourne-Voyaged collision remain a prominent feature of his current presentation (e.g. his ruminations about it and specific images of events surrounding it). Thus the collision itself remains an important contributor to the development and persistence of his current psychiatric problems." 21 So far as the plaintiff's insight into his condition is concerned, Dr Glaser expressed the following opinion - "As noted already, Mr Williams had developed a personal coping style which essentially involves denial of his problems and pushing himself to the utmost, almost to prove to himself that he can continue to handle the vest considerable stresses which he has faced since the Voyager collision. While this has been an understandable coping technique which has hade some success, it is now not serving him well and, has he is just starting to realize, his psychological state is decompensating markedly." 22 The plaintiff had been referred to Dr Likely by Dr Holford in June 2002. Dr Likely was his treating psychiatrist. He provided a report on 4 January 2005. It is not necessary to refer to that report in detail but the following opinion is, I think, material - "I believe that Mr Williams' reluctance to discuss his involvement and experiences in the Voyager collision is not at all unusual, when one considers the history of post traumatic stress disorder. Many patients present many years after the index trauma, having attempted to suppress or deny its effects on them in one way or another. Mr Williams self-medicated his symptoms by taking large amounts of alcohol and continued to work reasonably successfully until late 2000. It is generally my experience that patients can continue to function until their early 50's or thereabouts, after which time their psychological resources become overwhelmed by the underlying nature of the trauma. I therefore believe that Mr Williams' reluctance to discuss the condition generally and to tell Naval or other treating doctors about his involvement in the collision is consistent with his delayed understanding of his mental symptoms arising from the collision. I would also point out that there is an ethos amongst servicemen not to admit to any symptoms for a fear of being seen to be 'weak' or of having their careers detrimentally affected by admitting to such symptoms."

The expiry date of the limitation period 23 The plaintiff's evidence is, in substance, that to a greater or lesser degree he suffered from problems associated with his experiences during the collision involving excessive drinking, smoking, nightmares, distressing thoughts, flashbacks of the collision and its aftermath, thoughts of suicide, irritability, fear of confined spaces and generalised anxiety. At the same time it is clear that these problems were not debilitating. On the contrary, despite them he was able to work in a position of considerable responsibility requiring a high degree of concentration and leadership skills. Although it appears likely that he now suffers from a condition which might wholly or partly be described as post-traumatic stress disorder, precisely when that condition developed as a psychological illness is unclear. The cause of action, of course, did not accrue until the illness occurred. I am minded to accept the submission made on behalf of the Commonwealth that the injuries suffered by the plaintiff occurred sometime after the collision in 1964 and before he left the Navy in 1982. The diagnostic features of post-traumatic stress disorder as specified in DSM-IV-TR include the following - "The full symptom picture must be present for more than one month (Criterion E) and the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning (Criterion F)."

Quite when the latter feature arose is not altogether clear on the evidence and it is not inconceivable that this Criterion was not satisfied until shortly before the plaintiff's "breakdown". However, this is plainly not a matter for lay opinion. Although the medical reports do not focus specifically on Criterion F, the thrust of medical opinion, though implicit, is, I think, that all diagnostic features of the disorder were present at a much earlier time, especially if the plaintiff's excessive drinking be rightly regarded as self-medication. At all events, the approach taken by both parties is that the limitation period had long expired by the time proceedings were commenced and it is not appropriate that I should decide this matter upon a different basis. Once the stage is reached that the limitation period has expired, it matters little precisely when this occurred.

Does the action pass the gateway? 24 Section 60(G) of the Limitation Act 1969 provides as follows - " Ordinary action (including surviving action) (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 . (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

Despite the wording of sub-section 60G(1), the section also applies to causes of action accruing before 1 September 1990: s4(1) and (3) of schedule 5 to the Limitation Act . The test for making an order to extend a limitation period is therefore whether "it is just and reasonable to do so", subject to the requirements of s60I of the Act which is as follows: "Matters to be considered by court (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 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." 25 The Commonwealth concedes for the purpose of this application that the plaintiff did not have actual knowledge or was unaware of all the matters referred to in para 60I(1)(a). However, the Commonwealth submits that the proceedings were not commenced within three years after the plaintiff ought to have become aware of the matters referred to in the paragraph. The Commonwealth contends that the plaintiff ought to have become aware of these matters at some time in the 1960s and certainly by October 1998, a little more than three years before the statement of claim was filed. 26 The terms of para 60I(1)(b) have been considered recently in this Court and the Court of Appeal: Commonwealth of Australia v Smith [2005] NSWCA 478 (23 December 2005); Commonwealth of Australia v Shaw [2006] NSWCA 209 (1 August 2006); Pearce v Commonwealth of Australia [2006] NSWCA 210 (1 August 2006); and Irving v Commonwealth of Australia [2006] NSWSC 958 (21 September 2006). For present purposes it is, I think, necessary only to set out the discussion of the three earlier judgments by Studdert J in Irving. As Studdert J observed, although there was a difference in outcome in Smith and Shaw it did not follow that the decisions were contradictory as "plainly each case fell to be determined having regard to its own particular facts": Irving at [46]. His Honour then set out extensively passages from the judgment of Santow JA in Smith and Basten JA in Shaw - "47 In Smith , Santow JA said (at [102]-[109]: "[102] Thus s60I(1)(b) imports for the first time a notion of constructive awareness or knowledge. Clarke JA in Martignago (at 19C and 22F) explains that the fact that the plaintiff had the means of knowledge at his disposal would be a highly relevant matter for consideration, in deciding whether the application succeeded or failed under s60I(1)(b). However, this presupposes that the plaintiff had the capacity to have recourse to that means of knowledge, unimpaired by an adverse mental condition and otherwise not constrained. Here Mr Smith was instructed not to talk about the matter by his superiors, so was under that constraint. If Mr Smith, as the primary judge concluded, for a long period lacked sufficient insight even to utilise that ' means of knowledge ' (consulting a psychiatrist) in order to ascertain his true condition, then that means of knowledge was not in reality ' at his disposal '. It was open to the primary judge to conclude on the evidence that Mr Smith did lack the capacity for insight to appreciate that he had a mental impairment; the case for not appreciating its extent is even stronger. [103] The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person 'ought' to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances. Foster AJA, with whom Mason P and Einstein J agreed, said: 'In my opinion, in the same way that subs60I(b) has been called in aid of the construction of s60I(1)(a), the earlier sub-section can assist in the construction of the latter. It is clear that s60F, s60G and s60I are aimed, in general, at alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. It is the actual position of the plaintiff having regard to his personal state of knowledge which is the subject of the first sub-section of s60I(1). Although the second sub-section cannot, in my view, relate to imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. However, in my view, that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. I consider, with respect, that this is what Priestley JA was referring to in the passage cited above from Spadotto & Co Pty Ltd (in liq) v Raber , NSWCA, (unreported 27 October 1995)] where his Honour referred to "knowledge of which the plaintiff (as a person) ought to have become aware." In this regard, I consider that the remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC 518 at 530, cited by Dawson J in [ Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234] are particularly apt, his Lordship saying: "In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience." In the result, I am of the view that the words "or ought to have become aware" in subs60I(1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed. The question for the learned primary judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the documents.' [104] The tort of negligence recognises that in claims for nervous shock '[t]here are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable for strangers to have in contemplation the possibility of harm to them' (per Gleeson CJ in Tame v New South Wales (2002) 211 CLR 317 at 333). But we are here dealing with a limitation statute, not recovery for nervous shock. The section focuses in a case such as this on the capacity of someone suffering mental injury to become aware that his symptoms, even distressing ones, represent a psychiatric condition; that is to say, using the language of the statutory definition of 'personal injury', to become aware that they represent 'impairment of [his] … mental condition'. [105] Mr Smith's difficulties in accepting advice to seek psychiatric help were explained by Dr Glaser who found that Mr Smith exhibited ' a marked reluctance to discuss his feelings and behaviours ' [Vol 1, page 304] and that he 'has been reluctant to acknowledge the existence of his various psychological symptoms and, as he himself states, he prefers to try and suppress them and ignore them. This is part of an overall pattern of avoidance behaviour that appears to have characterized his psychological functioning since the 1964 collision. As a result, he would have great difficulty in understanding the emotional consequences of the collision and relating them to the collision itself… Thus it is most unlikely that he would have achieved an adequate understanding of his difficulties for him to be able to take legal action, until quite recently.' [Vol 1, page 305] [106] The Commonwealth relied on Commonwealth v Nelson [2001] NSWCA 443. Mr Nelson received psychological counselling and consulted a psychiatrist a few years after a submarine malfunction. He continued to have counselling for about 10 years. The Court of Appeal found that even if Mr Nelson was not subjectively aware of his injury before the expiration of the limitation period under s60I(1)(a) (although the court found that he was), nonetheless he ought to have been aware of the extent of his injuries under s60I(1)(b). This was ' by taking the simple step of enquiring of those treating him what his problems were ' (Nelson at [89]; see also at [80]). [107] The Commonwealth submitted that Mr Smith had the opportunity to become aware of his injury and ' ought to have become aware ' that he had suffered an injury. The Commonwealth submitted that his failure to seek the assistance of a psychiatrist was not, in the words of Deane J in Do Carmo v Ford Excavations (1984) 154 CLR 234, ' without fault on his part '. [108] However, in that passage Deane J was referring to the legislative policy underlying the then s57 and s58 of the Limitation Act . Section 57 (now s57B) referred in subs (1)(c), to the knowledge of ' a reasonable man, knowing those facts and having taken the appropriate advice on those facts '. It did so in relation to what are termed ' material facts of a decisive character relating to the cause of action '. Deane J's statement can have no bearing upon s60I which does not refer to objective reasonableness nor to the taking of appropriate advice. [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 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." [48] In Shaw , Basten JA said, as to s 60I(1)(b) (at [31] and [32]): "[31] It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed in relation to this issue) adopted a concept of 'constructive knowledge', as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530: 'In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out.'

This approach was quoted with approval by Santow JA (Handley JA agreeing) in Commonwealth of Australia v Smith [2005] NSWCA 478 at [103]; cf [182]-[187]. [32] Use of the label 'constructive knowledge' must be undertaken with care, so as not to fall into patterns of thought relating to a 'reasonable person' test. Further, there is a risk that the label may distract attention from the purpose of the judgment being formed. Indeed, even to ask what steps it was 'reasonable' for the plaintiff to take provides little guidance as to the criteria by which the judgment is to be made. Those criteria will vary, depending on the particular facet of knowledge, identified in par (a), of which it is said that the plaintiff ought to have become aware, at a date more than three years prior to the commencement of the proceedings. Only when the relevant fact has been identified, is it possible to consider what steps might have been taken in order to acquire knowledge of that fact. Once the possible steps have been identified, consideration may need to be given as to the likelihood that such steps, if taken, would have resulted in the plaintiff acquiring knowledge of the particular fact. Finally, it may be necessary to distinguish the purpose of the inquiry from the purpose for which the step might have been taken. In relation to a step involving a consultation with a medical practitioner, the purpose of the consultation would usually be to obtain appropriate medical treatment. Whether such treatment was obtained or not may have legal consequences, for example in relation to mitigation of loss. However, for present purposes the legal consequence will be acquisition of relevant knowledge, being a result somewhat removed from the usual purpose of obtaining medical treatment." [49] Later, Basten JA went on to say (at [73]): [73] There is no doubt that the normative limb of par (b) requires an evaluative judgment of a somewhat imprecise kind. Although each case must be governed by its own factual circumstances, it is desirable that similar cases (and there are now many arising from the Melbourne / Voyager collision) should, so far as possible, be decided consistently. That does not mean, of course, that all must reach the same result, but that, where possible, reasons given should indicate why a particular result has been reached in one case which appears superficially similar to others, but may not have the same outcome…" 27 Studdert J concluded that different outcomes in Smith and Shaw is explicable on the facts". As was that of Studdert J, my task "is to determine the present application on its particular facts having regard to the statements of legal principle expressed…in Smith and…in Shaw": ibid at [51]. 28 The Commonwealth submits that the symptoms described by the plaintiff in his affidavit were such that any reasonable person in his position would have sought medical help and, when the symptoms were described, it is contended that medical help would have led to a diagnosis of PTSD and the related conditions. (I note, by the way, that this appears to concede that the plaintiff did indeed suffer from PTSD and had done so for a long time.) In putting the submission in this way, I have quoted the Commonwealth's written submissions but, as is clear, the question is not what a reasonable person in the plaintiff's position would have done but what was reasonable for the plaintiff to have done in the circumstances. More precisely, I think, since the question is what the plaintiff "ought to have known", the question is what the plaintiff ought to have done. Thus, objectively speaking, it may have been reasonable, even wise, for him to seek medical advice, but it also may have been reasonable for him not to have done so. If the plaintiff acted reasonably in not taking steps that might have resulted in acquiring the relevant knowledge it is not possible to say that he ought to have acquired that knowledge. It is also necessary to consider the effect on him of his illness, one of the features of which is, to use a lay language, denial of unwellness. It might as well be noted now that, at all events, I have concluded that the plaintiff's problems (to use a neutral term) were not such as to lead to the conclusion that he ought to have sought medical help of a kind likely to have led to a diagnosis of PTSD or, for that matter, any other mental illness, quite apart from the effects of the condition on his psyche. 29 It is therefore necessary to return the plaintiff's account as to what he experienced at the time of the collision and thereafter. (For ease of reading I propose to omit quotation marks but it can be taken that what follows comprises either direct quotations or the substance or effect of the plaintiff's evidence as I understand it.) I have already mentioned the plaintiff's feelings at the time that he cleaned up what he took to be the remains of human brain on the deck. He described how helpless he felt when he watched the later sinking of part of the Voyager. He said that he was helpless, very shocked and very depressed. He described the entire experience as horrifying, traumatic and devastating. He was deeply shocked by the enormous loss of life. The vision of the sinking section of the Voyager and the sight of the bodies in the workboats has remained with him, as vivid in its intensity today as it was on the morning after the collision. He said that the entire experience changed him forever. He resorted to alcohol and to smoking. Whilst on leave following the collision he was continually confronted by images of the disaster that tormented him. He said that he did not know why he was drinking so much but with the benefit of hindsight he said he was trying to find some comfort and divert his thoughts from the horrific vision which he experienced. He found it difficult to get asleep and he said the alcohol helped to drown out the thoughts that otherwise kept him awake and preoccupied. I have already referred to what the plaintiff described as his subconscious resolve to bury himself in his career, to gain promotion and to leave himself as little time as possible to be preoccupied with his upsetting thoughts. 30 I interpolate that, thus far, there is nothing that could have suggested to the plaintiff that he had suffered any psychological injury. It is self evident that horrific or frightening experiences will leave a mark and often a deeply inflicted one. But it is nonsense to suggest that having shocking experiences and recalling them to memory even where doing so is painful, or seeking not to have or dwell on those memories, is a sign of mental illness, let alone that the most reasonable response is to seek medical help. The plaintiff believed, quite reasonably, that his reaction to his experiences was normal. The response of the plaintiff, namely that the best way of dealing with his painful experiences was to concentrate on his work and achieve success in his chosen profession in brief, to get on with his life, was entirely reasonable. After all, the Commonwealth, which was his employer with considerable medical resources devoted to the well-being of its servicemen, took no steps whatever to instigate any medical or paramedical assistance, not even when the condition of PTSD was well understood and the plaintiff was still in its employment with a high degree of responsibility. It is more than a little ironic that it should now press the argument that the plaintiff ought to have known something of which it was either blissfully unaware or in respect of which it declined to make any enquiry. 31 In a sense, of course, the very success that the plaintiff made of his Naval career seemed to deny that anything significant was wrong with him. Moreover, there is no evidence suggesting that, had the plaintiff visited a psychiatrist, in say, the year or two following the collision, he would have obtained any treatment that would have been useful although it is possible that he might have been told of the risk of post-traumatic stress disorder and been made aware of the potential for the development of an illness capable of having a marked effect upon his life. It is clear, however, that the plaintiff did not even consider seeking medical help. As I said, he decided that he was going to get on with his life as best he could. I think that this was a reasonable decision. 32 The reasons for which the plaintiff left the Navy are far from clear. He said that, although outwardly he appeared to be successful, he was not coping with his alcohol consumption or with his personal relationships and that his marriage was disintegrating. These symptoms do not suggest to me that he should have sought medical help. If not coping with personal relationships very well and a disintegrating marriage is a sign of psychiatric illness, then a very large proportion of Australia's population ought to be seeking psychiatric help. Nor, to my mind, is excessive alcohol consumption a medical condition for which it is unreasonable not to seek medical help. It is necessary to put his drinking into context. Although the plaintiff said that he was drinking very heavily (as often as he could), he pointed out that, being in charge of a ship, "You can't be walking around a ship all day at sea with a gin and tonic or a stubby in your hand but, whenever the occasion arose, if we anchored at night or something like that, I would, and as soon as I got ashore, I would be getting into it as well." There is no suggestion that he was affected by alcohol when performing his duties. Of course, some help might be useful, indeed desirable, but I do not think that failure to seek medical assistance, let alone psychiatric assistance, could be regarded as unreasonable. After all, although it is clear that the plaintiff believed that he was drinking to excess, he was part of a culture where heavy drinking was endemic and not only in the Navy. It appears that he was not addicted to alcohol, though he found that drinking helped him to cope with other stressors in his life and that this involved drinking more than he should have done. It seems he may have been an unpleasant drunk. This is a failure of character, not a sign of mental illness. 33 The plaintiff said that he had changed over the years as a result of his experiences in the collision but he did not know what influences were at work on his mind when he decided not to renew his enlistment. As I have said, it is self evident that experiences bring change but that does not mean that these changes involve or are likely to involve mental illness, even if the changes are painful. I would accept that the plaintiff now thinks that his decision to leave the Navy was impulsive and irrational. Indeed it appears so. Furthermore, it may have been made as a result of the post-traumatic stress disorder from which he was probably suffering at the time. But I do not think that it was unreasonable for him not to consider that he should see a doctor about it. 34 The plaintiff said that, although he succeeded well in the Navy, when he looked back his behaviour at various times was odd and he had been very anxious about some things which he described. He said he felt he was a loner and found it difficult to mix and socialise with his fellow officers very often, that he was happy for his ship to work on its own rather than in the company of other ships, that he worked fiercely on his fitness but at the same time consumed substantial amounts of alcohol and constantly smoked cigarettes. The plaintiff felt his superiors were not supportive of him but had no adequate explanation for this. He felt that he was always right and that everybody else was wrong which, in hindsight, he saw was not the case. 35 I appreciate that, in some circles, a desire to be solitary is seen as aberrant. I think it is perfectly normal, sometimes essential. The conflict between the desire for physical fitness and the consumption of substantial amounts of alcohol and smoking cigarettes merely reflects the human condition: "Man is an embodied paradox, a bundle of contradictions". I do not see these things as signs likely to alert a reasonable person to a need to consult a doctor. Vague feelings about the lack of support from superiors are common, whilst the feeling that one is always right and everybody else is wrong is far too widespread a character trait to be seen a sign of mental illness. 36 The plaintiff said that over the years he had continually been subject to nightmares and distressing thoughts of the night of the collision, particularly images of the bow of the Voyager passing him, of the brain matter found on the flight deck, the general scene and body pieces lying all over the place. He said that he thinks about them when in bed and it builds up in his mind. The plaintiff said in evidence that he would wake in the middle of the night in a sweat after nightmares about the collision and that this continued for some years though as time moved on it dissipated to a degree. He said that it was serious for several years or so or more. He was very concerned about the distressing thoughts of the collision and the nightmares but he accepted them as natural in light of what he had gone through. He found it difficult to sleep. He said that drinking plentifully of alcohol before bed tended to help him to get several hours of reasonably solid sleep. He "often" (I very much doubt this frequency) went so far as hitting his head against the bed head hoping to knock himself out in order to sleep but I am not sure when this happened. He has flashbacks of the collision and its aftermath at least weekly. 37 It is not at all surprising that someone who had experienced the sights described by the plaintiff would be distressed at their return and, indeed, at their continuing return. But it is not suggested that there is any treatment available to him to expunge these memories and, in the very nature of things, they must distress anyone of ordinary humanity. Their frequent repetition, of course, is one of the symptoms of post traumatic stress disorder but I do not think that it was unreasonable for the plaintiff to put up with them as distinct from thinking that he should seek medical help in respect of them, let alone that he might have thought that he was suffering from a mental illness. It may be that many persons would have sought medical help for sleeplessness with a view to obtaining sleep medication but that the plaintiff did not do so cannot be considered to be unreasonable. Given his responsibilities, it would have been unwise for him to have taken any such medication whilst at sea, for all that using alcohol to sleep was also unwise. Nor was it suggested to him that he should have done so. Hitting his head in frustration is certainly a sign of desperation but, again, I do not think that he ought to have sought medical assistance because of his sleeplessness, though it would have been reasonable for him to do so. Had he done so, it is doubtful that a diagnosis of PTSD would have been made: in all likelihood he would just have been given a prescription for sleeping pills and told to cut down on the drinking. 38 The plaintiff said that, while in the Navy, he noticed that he would get panicky in confined spaces such as gas chambers and when wearing restrictive clothing such as fire fighting gear. He particularly noticed this whilst undertaking a nuclear and biological defence course during his officer training in England. He had done similar exercises prior to the collision but had not felt that way. He said that he did not make the connection between his experiences in the collision and this newly developed feeling of panic but has done so since he received the counselling and psychiatric help to which I have referred. The plaintiff said that he noticed that in the years since the collision he has a problem with heights in that he feels nervous in skyscrapers, has had nightmares of an aircraft crashing with him aboard and tends to feel anxious amongst a crowd of people, preferring going to a cinema for instance when there are only a few people present rather than a crowd. Many people also have these experiences without associating them with any mental illness or the need to get medical help. The plaintiff has also described difficulties in his relationships with his children and his wife, on one occasion while affected by alcohol punching a hole in the wall during an argument with his wife. Again, whilst these problems might have developed from or be part of this post traumatic stress disorder, their presence or persistence would not suggest to the ordinary person that he or she needed medical help and did not suggest that to the plaintiff. 39 I have already mentioned the history taken by Mr Wilks that refers to that through the period from 1964 to 2001 he was troubled by alcohol inspired crying and had suicidal thoughts of shooting himself every one to two months. He said in evidence that these thoughts occurred before 1998 on dozens of occasions. Not surprisingly, the Commonwealth places a great deal of emphasis upon the suicidal thoughts. No doubt they are signs of anguish and unhappiness. Yet it is important to note that the plaintiff never made any attempt to commit suicide and that he dealt in his own way with those thoughts, namely, he decided that he would not fulfil them. I do not think that this was unreasonable. 40 The Commonwealth relies on a graph drawn by the plaintiff during his session with Mr Wilks which shows an apparently steady rise in the severity of his symptoms from 1964 on with spikes at 1964, the time of the collision, 1970 when men under his command were killed on the patrol boat and in 1982 at or about the time he left the Navy. This shows that the plaintiff's symptoms were apparently more severe in the years leading up to 2000 than they were (as indicated by the spikes) either at the time of the collision or in 1970 and even than in 1982 when he left the Navy. Even accepting that this is a fair interpretation of the graph (a matter about which I am sceptical), it is of little utility unless the actual level of intensity of the symptoms is understood. I am quite satisfied that they did not reach the stage (until perhaps eighteen months or so before 2000) at which it might reasonably be said that he ought to have sought medical help, for all that his feelings of emotional unwellness were growing more severe. At all events, I do not think that it is fair to treat the graph as anything more than a general indication of increasing anxiety. Furthermore, the plaintiff saw Mr Wilks in September 2001 at a time when he was very ill indeed and had already gained some insight into the possible significance of his troubled feelings and problems, which I am quite sure that he had not considered in that way when they occurred. He told Mr Wilks that he did not understand the feelings that he had had until about September 2000 when he saw a counsellor, I think Mr Langford. 41 The Commonwealth also points to the fact that the plaintiff saw a counsellor relating to the issues concerning his wife, contending that he had sufficient insight to see the need for counselling in relation to these matters and that it was therefore inconceivable that he would not have had the same insight in relation to his much more severe symptoms which he ascribes to the collision. I think this is a non sequitur. The Commonwealth submits that the only rational way of explaining this "is a more general reluctance to seek medical advice, either because the plaintiff was preferring to turn a blind eye to the possibility of psychiatric illness or because of a fear that the treatment would be worse than the illness." I reject these as explanations for the plaintiff not seeking medical advice. I do not believe that he ever thought that he had a psychiatric illness nor do I think that he was frightened of any medical advice that he might get. I think that he decided that he thought - perhaps mistakenly - he could deal with these problems himself by putting up with them and getting on with his life. 42 Of course, whilst it is relatively easy to dismiss the individual symptoms described by the plaintiff as not suggesting that he should have realised he had a severe psychological problem requiring medical help, it is necessary that the whole picture be considered. As unpleasant as his problems undoubtedly were, he was not only coping but coping successfully with demanding and responsible work, it was work moreover that required him to exercise leadership in the enclosed society of a warship. His ability to do so is powerful evidence, not only of his competence but his ability to cope - as it were, not to let his problems get the better of him - by achieving success in his work and retaining a high degree of physical fitness. Although, in hindsight, this may have been unwise - to take up the point made by Dr Likely, his ability to cope whilst on the relatively gentle descending slope was of no assistance when he hit, without warning, the edge of the cliff. There was no reason why he should have thought that, taking the approach to his problems that he did, such a serious, indeed catastrophic outcome as ultimately occurred was a risk. 43 Considering realistically the whole of plaintiff's history over many years in the context of a successful Naval career and responsible and skilled employment as a civilian, bearing in mind all of his problems over that period, I am satisfied that it was reasonable for him not to have sought medical or other assistance of a kind that was likely to have revealed his underlying psychiatric condition, a fortiori, if his underlying condition is taken into account. I reiterate that, of course, it would have been reasonable, perhaps wise, for him to seek some medical help. But I do not consider that he ought to have done so. 44 It follows that, in my view, the application is made within three years after the plaintiff became aware (or ought to have become aware) of the matters specified in paragraph 60G(1)(a) of the Limitation Act.

The Fairness of a Trial 45 As has been mentioned, the Court will make an order extending time, the prerequisites in s60I(1)(a) and (b) being satisfied, where to do so is just and reasonable in all of the circumstances. Where actual and significant prejudice has been caused to the defendant, in the sense that a fair trial would be unlikely, this test will not be satisfied: Commonwealth of Australia v Shaw [2006] NSWCA 209 per Basten JA at [36], referring to Commonwealth of Australia v Smith [2005] NSWCA 478 at [127-128], Holt v Wynter [2000] 49 NSWLR 128 at [119] and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Toohey and Gummow JJ at 550. As Basten JA observed, it may be that "an applicant may need to establish more than the likelihood, on a bare balance of probabilities, that the trial will not be unfair": Shaw at [37]. It is important to note, of course, that the question is not whether a trial will certainly be fair but whether it is likely to be fair. Delay itself may be presumed to have caused prejudice. In the nature of things, given the delay here, it is almost certain that some relevant witnesses will not be able to be found whilst those who can be found will have imperfect memory of relevant events or no memory or a distorted memory of those events. Furthermore, there may be other prejudice of an identified kind, where a plainly critical witness is unavailable or potentially significant evidence has been lost. At the same time, a trial may be fair although less than ideal: Maclean v Sydney Water Corporation [2001] NSWCA 122. The question must be approached realistically, with an eye to the particular forensic issues raised in the case under consideration and the practical approach that is generally taken by parties to the litigation of those issues. Although, as Basten J observed (Shaw at [81]) if the Commonwealth "has been denied the opportunity, due to the lapse of time, to make any reasonable enquiry as to the accuracy of the plaintiff's assertion[s], that is an element of actual prejudice", this does not apply to every detail alleged by the plaintiff. In truth, there is no bright line test enabling the identification of the particular facts which must be capable of independent verification. The actual issues in each case must be considered and the character of the evidence in relation to them evaluated but, in the end, it is a matter of judgment whether the inability to independently verify particular matters will mean, as a realistic and practical matter, that a fair trial is unlikely or, to put it more precisely, those lacunae should lead to the conclusion that the trial is not only less than ideal but is not likely to be fair. 46 I now move to the particular matters referred to by the Commonwealth as justifying the conclusion that the plaintiff has not established that the trial is likely to be fair. The first of these matters concerns the plaintiff's consumption of alcohol prior to the collision as compared to his consumption of alcohol afterwards. Essentially, this argument depends on an interpretation of the alcohol questionnaire signed by the plaintiff on 4 July 2000 in the context of his application to the Department of Veterans' Affairs for a pension. That questionnaire asked when he started to drink alcohol (to which the answer was 1962), what kind of alcohol he drank (to which the answer was beer) and then how much did he drink, to which the answer was - "Initially six-twelve per day if possible between 1962 and 1972. Access to spirits on the HMS Sydney [July 1970-February 1971] and thereafter but predominantly beer, rum and wine to a lesser degree up until now." 47 The plaintiff said that he considered his alcohol consumption was due to or contributed to by his service, stating - "Easy access and encouraged to drink. It was part of Navy life. In fact in a lot of ways life revolved around alcohol. We had beer issues at sea and when we went ashore it was always to a pub. We didn't know any different - not to do it puts you in the "sook" category. On the Sydney, the forty ounce bottles [?] of spirits came on board with army personnel and Navy divers in large quantities. I hadn't used spirits until then but I learned quickly. Also on the "Sydney"…I was the "beer bosun" - ie in charge of the ship's beer - answerable to the beer officer. It was too easy. Party every night." 48 It seems reasonable to infer that the excessive drinking was not attributed by the plaintiff to any need to self medicate at the time that he completed the questionnaire. Essentially, he was saying that it was part of his pattern of life, although that it may have brought about other "benefits" relating to the symptoms of his condition. The thrust of this application concerned the link between his service life and the problems for which he sought a pension. It is not surprising, therefore, that he focussed on the contribution to his drinking made by the general conditions of service. Returning, however, to the point made by the Commonwealth in relation to the quantity drunk by the plaintiff between 1962 and 1972, it is contended that the statement shows, contrary to the plaintiff's evidence that his drinking markedly increased following the collision, that it was relatively stable between 1962 and 1972. The plaintiff's evidence was that he intended to convey that he was having six drinks a day at the beginning of that period increasing to twelve drinks a day by 1972. 49 The questionnaire also asked, "Did the amount of alcohol you consumed change significantly at any time after you first started drinking alcohol?" to which the plaintiff answered "No". In cross-examination the plaintiff was asked - "Q. Is that a truthful answer? A. I can't - I think it was the wrong answer, obviously. Q. Why is it the wrong answer obviously? A. Well, my mental state at the time I would say because - it is the wrong answer because I was - my drinking did escalate. … Q. Mr Williams, is it not the case that in fact you became a fairly heavy drinker right from the start of your naval career and in fact the collision made no difference at all to your drinking habits? A. There is no doubt that there was a lot more alcohol consumed after the collision. Q. And on your evidence from the day after you returned to Sydney? A. That's correct. Q. A dramatic change in your drinking habits? A. Well its, well, it started escalating from there." 50 So far as the answer to how much he drank was concerned the plaintiff said in evidence that the reference to six drinks "was early in around about sixty two and would build up to the dozen as the decade moved on" and that this was what he was attempting to convey. I think that the plaintiff was an honest and candid witness. He was extensively cross-examined and he impressed me as truthful. I think that the plaintiff's explanation for what he put in the questionnaire is both reasonable and believable. I note also that, as I understand the plaintiff's evidence, the answer to the questionnaire is not in his handwriting but that of the person assisting him. Taking the crucial first sentence in the answer, it starts with the word "initially". The dash after six might well be reasonably interpreted as "to" or as indicating moving towards. The sentence at all events is susceptible of ambiguity and, in light of my assessment of the plaintiff as a witness, I think that his answer is a reasonable explanation. It follows that I do not accept the contention by Mr Dicker of counsel for the Commonwealth that this is a significant inconsistency rendering it more difficult for the Commonwealth "to undertake the task of disentangling" other contributing causes (including the plaintiff's pre-collision drinking) to the alleged condition relating to alcohol consumption". I accept that the extent of the plaintiff's alcohol consumption is material. But, since it is clear that it did not impede his ability to perform his duties and occurred in the context of a heavy drinking culture, it is difficult to see how the absence of witnesses in this respect really prejudices the Commonwealth. If, after 1964 there were witnesses who said that the plaintiff drank heavily then that would support his case. I suppose that it is theoretically possible that there might be witnesses who said that the plaintiff did not drink at all but this strikes me as being so unlikely to not be a real issue in the case. Although I would accept that, as a practical matter, it may be difficult (but not impossible - see below) for the Commonwealth now to discover witnesses able to give evidence about the plaintiff's drinking habits prior to 1964 but the plaintiff has never said that he was a teetotaller and, although it was not subject to analysis or much questioning, it seems to me that he was essentially saying that his drinking habits were normal for a male of his age up until 1964, indeed possibly beyond, even if it increased markedly it would probably still be consistent with the habits of many of his contemporaries and yet be excessive. I do not think, that, as a practical matter, the delay in the commencement of proceedings has significantly prejudiced the Commonwealth in this respect. 51 The next matter raised in the submissions made by the Commonwealth concerns the plaintiff's account of discovering what appeared to him to be the remains of human brain. The plaintiff identified the sailor with whom he made this discovery as a Mr Gordon Birch. Mr Birch was, it appears, formerly a plaintiff against the Commonwealth and, for this reason, he has not been contacted. The Commonwealth submits that it is prejudiced by the fact that Mr Birch was a plaintiff and contends that, had the plaintiff sued the Commonwealth before Mr Birch commenced proceedings, then the Commonwealth could have approached Mr Birch as an independent witness. It is submitted that the Court should infer that, as Mr Birch is a plaintiff against the Commonwealth in relation to the collision, he would not be a witness favourable to the Commonwealth. This line of reasoning should be rejected. The mere fact that Mr Birch is involved in litigation against the Commonwealth cannot justify the conclusion that he would not be a candid witness. Certainly, he is not an entirely independent witness. But, as a realistic matter, he never would have been. 52 The Commonwealth also argues that the plaintiff has not identified the sick bay attendant to whom the remains were taken and the Commonwealth has not been able to do so. It is submitted that it is thereby prejudiced. In a theoretical sense, this submission can be accepted. But I do not think that being unable to obtain evidence from the attendant adversely affects the fairness of the trial. It should be noted that it matters very little whether the plaintiff correctly identified the remains as brain matter although, no doubt, the incident itself is of some significance. 53 It will be recalled that the plaintiff stated that, when he was on leave shortly after the collision, he travelled to Queensland with a friend, whom he identified as one William Joseph McGinlay. Ms Robinson, the Commonwealth solicitor, has written to Mr McGinlay seeking his recollection of the plaintiff and has not received a reply. The mere fact that a relevant witness declines to assist a party does not mean that a trial is unfair. There is nothing to stop the Commonwealth from requiring Mr McGinlay's presence at any trial to enable his evidence to be obtained. No doubt the Commonwealth would be assisted in the preparation of its case by obtaining a statement but it is difficult to see how the apparent reluctance of a putative witness to assist a party by giving a statement could be a relevant prejudice. At all events, the mere writing of one letter cast in formal terms to which no reply is made is scarcely a basis for concluding that the witness will not provide a statement. 54 The Commonwealth also relies upon the difficulty in identifying and locating any persons who were in the vicinity of the plaintiff at the time of the collision and the succeeding days who recall the plaintiff at this time. As far as the collision itself is concerned, as has been mentioned in other judgments in this Court dealing with applications to extend time, two Royal Commissions enquired into and reported extensively 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 the plaintiff goes, there is nothing in his description of them that seems unlikely to be true and it strikes me as likely that anybody in close proximity to him who might have noticed him would be in essentially the same predicament as the plaintiff; it seems very improbable that they would have taken much notice of him or of what he was doing except, perhaps, to say that they noticed his presence. 55 The Commonwealth obtained the services of Mr Denis Campanella, an investigator, to conduct enquiries attempting to locate persons who knew and recalled the plaintiff at the time of the collision or the rescue operations. (As I have already suggested, this focus is of limited forensic significance: what happened in following years is much more important. There is no explanation as to why his enquiries were so limited.) In Gretton v The Commonwealth [2005] NSWSC 437, McDougall J noted, in this context - "[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 recall 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." 56 The investigator was not cross-examined before me, but the approach of McDougall J to this kind of evidence is instructive. A number of the persons contacted had no recall of the plaintiff. It is not known whether this is a failure of recollection or merely follows from the fact that they had not met in any significant sense. Mr Campanella's report does not suggest that he sought to clarify this question. It seems that nothing was done to jog memory. One witness said that he recalled the plaintiff, that he was "a happy go lucky sought of bloke" and "he did not change during the time that I knew him although I did not have that much contact with him". It appears that Mr Campanella did not attempt to get any more details, in particular as to dates and places. Two other witnesses said that they recalled the plaintiff but only had a vague recollection. Several witnesses said that they were not interested in assisting. The majority said that they did not recall the plaintiff but were, apparently, not further questioned. Some witnesses could not be located. One witness said that he intended to make a claim himself and therefore the interview was terminated. It was neither necessary or desirable to do this. If that person made a claim, of course, the information disclosed by him for that purpose might be relevant to the Commonwealth's case in respect of the plaintiff. No such enquiry or crosschecking has been made. Amongst the persons contacted was one Mr Chad who plainly knew the plaintiff reasonably well, they having both played rugby together and having come across the plaintiff over the period of his service life. He said that he did not recall any change in the plaintiff over the time that he knew him. This witness is obviously an important witness from the Commonwealth's point of view. Another material witness from the Commonwealth's point of view is a Mr Hamilton who apparently knew him quite well and was able to give a definite, if brief description of his character, I think from a period after 1964. Regrettably, Mr Campanella did not ask any questions that might have elicited that information. Mr Campanella also located a Mr Hawke, who knew the plaintiff and his wife and had contact with the plaintiff over an extensive period of time. The comments elicited by Mr Campanella were brief indeed but not such as to suggest that they exhausted by any means this witness's knowledge of him. I rather think they reflected the brevity of the interview. 57 In my opinion, the enquiries made by Mr Campanella have produced a number of significant witnesses, though the perfunctory nature of his communications with them does not give much useful information about what they might be able to say. I gather that further enquiries will be made if the extension of time is granted. I do not think that the Commonwealth has demonstrated any actual prejudice in relation to this part of its case. 58 In answers to requests for further and better particulars, a number of people who served with the plaintiff in the Navy were identified as potential witnesses. Ms Robinson asked that the plaintiff should identify the names of all lay witnesses the plaintiff intended to call at the trial and supply statements of their oral evidence but sought this information only in the event that leave to extend time were granted. The plaintiff's solicitors responded by saying, in effect, that it was necessary first to identify the issues for trial so that consideration could be given to the evidence needed to be called and that, when the matter was listed for trial, the request would be then considered. Ms Robinson responded that Hollows appeared to misunderstand the nature of the enquiry, which concerned the witnesses who would be called and the substance of the evidence they would give for the purposes of the extension of time application. Mr Hollows did not at all misunderstand the request for information. Ms Robinson further intimated that when the matter was mentioned an order under Rule 31.4 for provision of witness statements would be made and asked if the plaintiff would consent to such an order. So far as I know such an order was not sought. I expect, however, that the plaintiff would not oppose such an order. The complaint by the Commonwealth that the plaintiff has not provided statements of the witnesses he proposes to call cannot be given any weight when it appears that no steps were taken to use the processes of the Court to obtain those statements. Indeed, it was not too late when the matter came on for hearing before me to request that those statements should be produced. It is difficult to avoid the suspicion that the failure to take these steps was a tactical decision. 59 Of course, the defendant has the records of Naval staff who would have served with the plaintiff during his legal career. I note that no enquiries appear to have been made as to the availability of any of those persons and their recollections, if any, of the plaintiff, Mr Campanella limiting his enquiries essentially to persons who knew the plaintiff at the time of his initial recruitment and when on the Melbourne at the time of the collision. There is no reason to suppose that there is not a sufficient number of persons with knowledge of the plaintiff during his subsequent service still available to give evidence relevant to this issues in this trial. However, whether a decision or an oversight, I do not think that the Commonwealth has demonstrated any relevant prejudice in this regard. Of course I do not forget that the plaintiff must establish that the trial is likely to be a fair one. Making that decision, however, it is necessary to apply a degree of common sense to the forensic realties of litigation of this kind. A significant number of witnesses have been identified by the Commonwealth's own enquiries and in the particulars given by the plaintiff and the Commonwealth has its own resources for the purpose of identifying more, if it should wish to do so. I notice that, except in a general sense, this matter is not the subject of a specific submission by counsel for the Commonwealth.

Post RAN Employment 60 It is obvious that an important issue in any trial will be the work history of the plaintiff since his discharge from the Navy. The plaintiff has identified the following employment - Period of Employment Employer Occupation May 1982-June 1983/1984 Mason Shipping Deck Officer/Master July 1983 - 1984 TNT Bulk Carriers Deck Officer 1985 Dalrymple Bay Coal Terminal Tug Master and Security Officer 1984-1987 Department of Transport Lighthouse and Survey Ships Deck Officer 1986-2001 North Queensland Marine Towage Tug Master - initially casual and then permanent from May 1988 1993-2003 Wellington Guest House Partnership with wife

61 Ms Robinson deposes as follows in respect of the nominated employers:

Mason Shipping : Mason Shipping Co Pty Ltd is deregistered. The liquidator advised that documents relating to it and its former proprietor are held by Butler and Associates. A subpoena for production issued to that firm elicited the response that no records regarding the plaintiff were held.

TNT Bulk Carriers : Searches have been conducted at ASIC for TNT Bulk carriers but no records of a company or organisation of that name have been located. TNT Australia Pty Ltd have advised that they do not hold any records relating to the plaintiff.

Dalrymple Bay Coal Terminal : Contacts with an employee of this company have indicated that no documents have been located regarding the plaintiff's employment and employee records are commonly destroyed after six years.

Department of Transport Lighthouse and Survey Ships : Ms Robinson understands that lighthouses are the responsibility of both State and Federal Governments and she has been unable to ascertain which was the plaintiff's employer during the period. A subpoena issued to the Department of Transport Lighthouse and Survey Ships in Queensland seeking production of records relating to the plaintiff's employment elicited the response from the Department that it holds no records regarding the plaintiff.

Ms Robinson was informed that the Department of Transport and Regional Services looked after Commonwealth lighthouses until they were handed over to the Australian Maritime Safety Authority, a Commonwealth body, in about 1989. The Department of Transport and Regional Services advised that they do not hold any records regarding the plaintiff.

Australian Maritime Safety Authority : The Authority has produced limited documents relating to the plaintiff's employment between 1982 and 1984. 62 Counsel for the plaintiff points out, accordingly, that the Commonwealth has very little documentary records covering the period of the plaintiff's employment from 1982 to 1986. I think it may be accepted that this is a gap in the Commonwealth's forensic position. However, it must be seen in context. It seems unlikely that the plaintiff's employment during this period is a real issue in this case. The plaintiff concedes that, in effect, he was working full time, because of overlapping arrangements with his casual employment for these companies. I do not doubt that, as a practical matter, the Commonwealth will be unable to ascertain, in a general sense at least, the nature of the plaintiff's work and his likely earnings. I do not regard this gap as being significantly prejudicial to the Commonwealth. 63 The Commonwealth also points to the lack of income tax records for the period 1982 to 1990. From 1985 the plaintiff was employed by North Queensland Marine Towage (Adsteam) as a tug master. His affidavit specified his earnings, though without documentary support except that in 1999 he was injured at work and completed a Workers' Compensation Claim Form which discloses that his weekly earnings in 1989 averaged $922 gross per week. The Commonwealth submits that "effectively [it] is left to point to the absence of evidence and weaknesses in the plaintiff's evidence". I do not accept this submission. It seems to me that it would be relatively easy to ascertain the wage details for someone in the plaintiff's position at the relevant time with a sufficient degree of certainty to enable a fair trial of this issue.

Marital Problems 64 The Commonwealth notes that, as set out in his affidavit, the plaintiff had a number of marital problems in the course of his marriage with his late wife. Of course, his wife is no longer available to give evidence. During this time, the plaintiff sought counselling on three occasions because of concerns he had about telling his wife he wanted to separate. His counsellor has not yet been identified. I do not think that this gives rise to a significant prejudice.

The plaintiff's medical reports refer to the accidental death of members of the plaintiff's crew in 1971/1972. Reports of proceedings in relation to the accidental deaths of two of those persons have been obtained by the Commonwealth. (It seems reasonable to infer, by the way, that these reports will identify fellow crew of the plaintiff able to give evidence about him at this time.) The Commonwealth has been unable to obtain any information or locate any records relating to the accidental death of the third crewmember. The plaintiff was not cross-examined about this matter. In the report of Mr Wilks there is a reference to the plaintiff having to inform the mother of a sailor that her son had died in a motorcycle accident. No doubt that would have been a stressful experience, but it is difficult to ascribe any real significance to it for present purposes. Counsel for the Commonwealth did not advert to this matter, not surprisingly I think. Mr Dicker was similarly silent on the difficulty mentioned in Ms Robinson's affidavit of obtaining information as to a psychological problem suffered by one of the plaintiff's daughters. It is difficult to think that this has any relevance but, if it has, it is so slight as to be presently immaterial.

Department of Defence Records 65 Enquiries have been made by Defence Archives about the records held concerning the plaintiff. Two files relating to his service details and leave have been located but five other files have it seems been destroyed. They relate to postings, removal, overseas allowances, casualties and resettlement. It is most unlikely that these files would be relevant, except in the most marginal way, to any issue in a trial. The Commonwealth, which is in the best position to explain why the missing material could give rise to a prejudice, has not attempted to do so but simply pointed to the missing files, Mr Dicker saying no more than, accepting one of the files to be irrelevant, "we don't rely on all of them, some of them maybe". The Commonwealth next points to the absence of the psychology report on the plaintiff that was made when he was enlisted. As Mr Dicker conceded, however, there was nothing in the report that prevented the plaintiff's appointment nor was there anything either in it or in any later reports which prevented his promotion. Counsel submitted that it "might have provided background information in relation to his family or previous experience which might have been helpful". Counsel agreed that, as a general proposition, these reports are extremely brief, possibly perfunctory. As I pointed out to counsel, where the Commonwealth relies on a missing document which was brought into existence by it, it plainly is able to inform the Court as to the nature of the material that such a report is likely to contain. It must be remembered that the plaintiff was only eighteen years old at the time. I think it may safely be assumed that the report would not be germane to the issues in any trial. 66 Of possibly greater significance is the unavailability of a Dr Stanton and his notes. Dr Stanton was consulted by the plaintiff in about August 2000 at the instance of the Department of Veteran Affairs. He saw Dr Stanton twice but was never provided with any report or diagnosis by him. The plaintiff understood that Dr Stanton was convicted of firearm offences and was struck off and it was for this reason that the Department of Veterans' Affairs directed him to Dr Athey. The Commonwealth has been unable to locate Dr Stanton, though the only searches conducted have been of the electoral roll, the directory of the Medical Board of Australia, the Psychology Board and White Pages online. I think the plaintiff's evidence that he was directed to Dr Stanton by the Department of Veterans' Affairs should be accepted. It is fair to infer that, having seen the plaintiff twice, Dr Stanton would have reported to the Department. It is the Commonwealth, therefore, which is responsible for keeping or, it may be, losing Dr Stanton's report, if one was ever written. Ms Robinson does not suggest that any enquiries were made of the Department concerning Dr Stanton. It is unlikely, for example, that the plaintiff was the only person referred to Dr Stanton by the Department and, consequently, the Department may well have some information about him. The complaint of the Commonwealth in this respect is, principally, that it does not have access to the notes made by Dr Stanton of the history given by the plaintiff to him. It is possible, of course, that that history differs from other histories given to the doctors whose reports have been obtained and that the Commonwealth might obtain some advantage from the differences, if any, in the accounts given by the plaintiff. Even so, it seems to me that this possibility is merely speculative. I do not think, at all events, that it is probable that obtaining Dr Stanton's report, if any, or his notes would be of any real significance to the Commonwealth's case. 67 There appears to be a gap in the material supplied by Mr Langford, to whom the plaintiff was referred by the Vietnam Veterans' Counselling Service. The file of that Service dates from January 2002 with a report of 27 August 2003. The file was supplied to the Commonwealth but does not refer to any consultations with Mr Langford in June 2001, when the plaintiff claimed to have seen him for the first time. However, there is no reason for thinking that Mr Langford's records are not available although the Commonwealth has not made any enquiry about them. It appears also, in relation to Dr Likely, that his records are to some extent incomplete. However, I do not regard this as significant. Maybe, of course, the plaintiff was mistaken about the dates of his consultations although he was not cross-examined upon this matter. I think that an enquiry of the doctor is likely to be useful and obviously can still be made.

Income Tax Records 68 The plaintiff has supplied income tax returns for the taxation years 1995-2002 and group certificates for the tax years 1996-2000. The income tax returns for the years 1982-1994 and 2003 to date have not been provided, nor have the notices of assessment from 1982 or group certificates from 1982-1995 (except for worker's compensation for two weeks in 1990) and 2001 to date. 69 Although income tax records do, of course, provide useful information about income, they are far from the only way of doing so. In my view there are many lines of enquiry available to the Commonwealth likely to provide cogent evidence of the probable income of the plaintiff during the relevant periods. In a practical sense, although the absence of this material is inconvenient, I do not see that it is likely to deny the Commonwealth a fair trial. So far as the period from 2003 to date is concerned I do not doubt that material must be able to be produced. Certainly the plaintiff was not cross-examined about its absence, I think because in a practical sense this is not a real issue in light of the plaintiff's medical condition since that time.

Period After the Commencement of Proceedings 70 The Commonwealth points out that nearly five years had passed between the commencement of proceedings by the plaintiff and the hearing of this application. It points to the following matters in particular - a) the plaintiff's statement of claim and notice of motion were filed on 27 November 2001;

b) it was not until some two years later that the plaintiff filed his first affidavit sworn 24 August 2003;

c) the plaintiff then filed an amending affidavit some sixteen months later which amended his first affidavit in a number of respects;

d) the plaintiff's third affidavit and an affidavit of an employee of his instructing solicitor were not filed until 29 March 2006;

e) the Commonwealth first sought further and better particulars on 7 January 2002 and then 5 January 2004 and a consolidated and revised request on 15 November 2004 which was not answered until 1 September 2005; and

f) a number of consent orders made by the Registrar requiring the provision of particulars were breached in this period. 71 It is submitted on the Commonwealth's behalf that the plaintiff's prosecution of its notice of motion was "at a substantially less than efficient pace" and that this has increased the prejudice to the Commonwealth of the delay in the commencement of proceedings. 72 Mr Forster, the plaintiff's solicitor was cross-examined by counsel for the Commonwealth about the delay in supplying particulars. Counsel took up with him the orders made between October 2004 and the middle of 2005 which had not been complied with. However, the order of October 2004 required the Commonwealth to provide a consolidated request for further and better particulars by 12 November 2004. Mr Forster said that there was a delay until September 2005 with providing the material requested but he explained that this was because of the pressure of work having regard to the large number of Melbourne cases being handled. The Commonwealth's complaints were never pressed to the point of seeking sanctions against the plaintiff. It must have been obvious from its own records that significant enquiries could be commenced immediately. Mr Forster explained the initial delay, which apparently arose out of litigation in another case which impacted or had the potential to impact upon the conduct of the present case was being undertaken. Although, of course, the orders made by the Registrar should have been complied with - after all, they were made by consent - I do not think as a practical matter this has had any significant impact on the Commonwealth's ability to litigate any trial.

Strength of the plaintiff's case 73 Having regard to the comparative success of the plaintiff's Naval career and his continuing work as a seaman at a senior level, amongst other things, his case for damages is markedly less than overwhelming, at least in relation to establishing a substantial economic loss arising from his illness. Although other circumstances may have contributed to his condition, the question on causation will be whether his experiences of the collision and its aftermath substantially contributed to its instigation. Amongst other issues, the plaintiff (as his case is presently cast) needs to establish a causal link between the illness and his decision not to re-enlist in the Navy. Although the case is not an easy one for the plaintiff in respect of these - and, indeed, other - issues, I do not think that it is so weak as to make this a significant matter in the present application. Indeed, such an argument was not really pressed on the Commonwealth's behalf.

Conclusion 74 I have concluded that there is no actual prejudice to the Commonwealth of any real and practical significance arising from the delay in commencement of proceedings such as would be likely to make the trial unfair. I accept that there is presumptive prejudice but, in my view, this is not so significant as to render an imperfect trial an unfair one. Overall, I am satisfied that the plaintiff has established that a trial of his action is likely to be a fair trial. Of course, I also must take into account the fact that the Commonwealth had acted upon the basis that it would not suffer a claim like that of the plaintiff from the collision, which was (it admits) caused by the negligence of its servants or agents, after the expiration of the limitation period. However, for many years it has known that actions against the Commonwealth arising out of the collision were available and, indeed, likely. I do not think that in any real sense the Commonwealth had adjusted its affairs upon the basis that it would not have to answer claims from persons who were injured as a result of the negligence involved in the Melbourne/Voyager collision, let alone the claim of the plaintiff. It follows that an extension of the limitation period until the day on which the statement of claim was filed is just and reasonable.

Orders 75 I order that the limitation period for the plaintiff's cause of action be extended to 27 November 2001. 76 The question of costs will be determined following further submissions of the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.