Windle v Commonwealth of Australia

Mr M Joseph SC with Mr I Butcher COUNSEL : (Plaintiff)

Mr T J Morahan (Defendant) Mr James Taylor of James Taylor & Co Myrtleford, Victoria SOLICITORS : (Plaintiff)

Mr C Ktenas Crown Solicitors Office (Defendant) CATCHWORDS : Extension of time to commence proceedings ss 60G a and 60I Limitation Act - Viyager/Melboure collision LEGISLATION CITED : Limitation Act - SS 60G and 60I Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Ltd (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA Geelson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (NSWCA unreported 7 March 1999) CASES CITED : Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Szerdahelyi v Baily, Ortado v Bailey, Lewis v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997) Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995) Holt v Wynter [2000] 49 NSWLR 148 DECISION : See para 33

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20523/96 - NEIL RICHARD WINDLE v COMMONWEALTH OF AUSTRALIA

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

1 MASTER: The plaintiff by notice of motion 27 May 1996 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 29 June 2000. The defendant relied on the affidavit of its solicitor Con Ktenas affirmed on 22 November 2000. The defendant opposes the orders sought. 2 For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts. I observed the plaintiff carefully when he gave evidence and during cross-examination. I formed the opinion that he was a truthful witness and a reliable historian.

(1) The plaintiff was born on 19 May 1944 and is 56 years of age. He currently resides in South Australia.

(2) On the plaintiff enlisted as a recruit in the Royal Australian Navy at the age of 17 years. He was in good health both physically and psychologically. The plaintiff enlisted for an initial period of nine years, but he looked forward to making the Navy his career with the view to serving at least 30 years.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of ME (mechanical engineer).

(4) On 10 February 1964 the Voyager was sunk when she collided with the Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives.

(5) At the time of the collision the plaintiff was sitting on the edge of his bed in 3 Delta. He felt a violent jolt, and the first thing that went through his mind was that a plane had crashed on deck. He saw some of his fellow crewmen thrown across the mess deck and heard the pipe "hands to collision station". He was in fear for his life and rushed out onto the deck closing X and Y doors in a panic. The plaintiff was standing at the guard rail clasping the rail tightly trying to get control of his emotions. He saw the stern of the Voyager and recalled the terrible sight of men jumping off the Voyager into the sea.

(6) Since September 1964 the plaintiff was relieved to be posted to shore. He was anxious and edgy. He was having nightmares and reliving the collision almost daily. He was drinking heavily to get some sleep. He had become distrustful of authority and got into arguments with his superiors. He would find himself breaking down and crying when he thought about seamen who had died in the collision.

(7) In July 1965 when the plaintiff underwent a damage control course, he was placed in the compartment and when he was up to his neck in water. He panicked and "freaked out". His nerves were shot to pieces. His skin broke out in a rash. Every time he went near the water he had problems with his skin. He went and saw a doctor about these problems and was diagnosed with dermatitis. He was told that it was probably caused by a reaction to a chemical. On 14 April 1977 the plaintiff was discharged from the Navy. He was shattered and felt that that is whole life had ended.

(8) In February 1967 the plaintiff made a claim against the Commonwealth for his dermatitis condition. The plaintiff was paid for loss of wages and medical expenses. The Commonwealth file (about 1½" thick) in relation to this matter is available.

(9) In 1994 the plaintiff's dermatitis condition flared up. He consulted Dr Burdon-Jones a dermatologist once on 25 May 1998. A copy of a medical report of Dr Burdon-Jones is available. (Ex A).

(10) In about November 1995 the plaintiff saw an advertisement in the paper. He contacted Mr James Taylor solicitor. After having a conversation with Mr Taylor it was arranged for the plaintiff to see Dr Wu a psychiatrist.

(11) In January 1996 the plaintiff saw Dr Wu. Dr Wu told the plaintiff he was suffering from a psychiatric condition caused by the collision. Dr Wu also told the plaintiff that his dermatitis was probably caused by or was being aggravated by that psychiatric condition. Dr Wu did not specifically name what the psychiatric condition that plaintiff suffered. Dr Wu in his report dated 1 February 1996 stated that the using the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM IV) the plaintiff would have been diagnosed as having had an adjustment disorder and on Axis III a dermatitis secondary to psychological factors namely the collision.

(12) In late 1997 saw Associate Professor John Conden a psychiatrist. At the conclusion of the interview Dr Conden told the plaintiff that he was suffering from a post traumatic stress disorder (PTSD) caused by the his involvement in the collision and that the his PTSD probably caused him to suffer from dermatitis. The plaintiff did not know the nature and extent of his condition until he was informed by Dr Conden. The first time the plaintiff became aware that he was suffering from PTSD and that condition probably caused his dermatitis was when Dr Conden inform him in late 1997 or early 1998.

Dr Conden in report (undated) stated that the plaintiff suffers from PTSD as a direct result of the collision. He continues to have intrusive distressing recollection of the event and dreams about it. The plaintiff avoids situations and occasions such as the RSL or ANZAC Day March because of the distress they cause, both in terms of the diaster itself and the sadness of "not being part of it". Dr Conden reported that the plaintiff becomes tearful if he sees TV programs about the collision. He has no friends or hobbies and is socially isolated. In particular, the plaintiff fears and strenuously avoids situations where he might be questioned by ex-navy men about his discharge, fearing that it will be construed as dishonourable or as a result of cowardice. The plaintiff has moved house to avoid one such situation. Dr Conden further stated that the plaintiff has difficulty coping with confined spaces but forces himself to overcome his fear in his refinery job (eg., when using breathing apparatus in confined spaces, he hyperventilates and the tank last only on third as long as it should). The plaintiff fears the dark and feels panicky in crowds which he avoid. In bed, if the sheets constrict him, he feels trapped and panic stricken. The plaintiff has increased arousal as evidenced by his frequent waking and early morning waking. He has difficulty concentrating and has an exaggerated startle response (which Dr Conden was able to witness, coincidentally during the interview). His condition has caused the plaintiff significant impairment in both occupational and social settings.

Dr Conden opined that the importance of psychological stress in the aetiology of skin disorders, including dermatitis, is well established. He believed that the plaintiff's experience of the collision importantly contributed to the intense anxiety which the plaintiff experience over 14 months of subsequent swimming instructions. This stress was probably a major aetiological importance to the severe dermatitis which eventually resulted in the plaintiff's discharge on the grounds of being medically unfit. Dr Conden says that the plaintiff has used alcohol to ameliorate his PTSD and anxiety symptoms. In addition to satisfying the Diagnostic Statistical Manual IV criteria for PTSD the plaintiff also satisfies criteria for alcohol abuse.

(13) On 27 May 1996 the statement of claim and the notice of motion to extend the limited period were filed.

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

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

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

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 27 May 1993. 6 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 27 May 1993); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b). 7 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered some sort of psychiatric condition until 1996 when he saw Dr Wu. It was not until 1997 when the plaintiff saw Dr Conden that he became aware he suffered the specific psychiatric diagnosis of PTSD. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant's act or omissions until he read the statement of claim in 1996. The defendant did not make any submissions in relation to the s 60I(a)(i) to (iii) thresholds.

(i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 8 Prior to the expiration of the limitation period the plaintiff knew that he suffered from nightmares, bouts of breaking down and crying. He was anxious, and became distrustful of authority and became argumentative. He also suffered bouts of fear and panic which made him sweat. He had a terrible fear of water. He thought that these were normal reactions. 9 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury which the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. It was in 1996 at the earliest when the plaintiff was informed for the first time that he suffered from a diagnosable psychiatric illness by Dr Wu. In 1997 Dr Conden told the plaintiff he suffered from PTSD and that it was caused by the collision. It is my view the plaintiff did not become aware that he suffered a personal injury until it was explained to him by Dr Conden in 1997. Alternatively, he did not know that he had a diagnosable psychiatric condition until he was told by Dr Wu in 1996 This knowledge was acquired by the plaintiff within the time stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 10 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness. 11 I have referred to the state of the plaintiff's knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. He was unaware that he had a diagnosable psychiatric illness until 1996 at the earliest. It is more likely that he became aware that he had a diagnosable psychiatric injury namely PTSD when he was first told of this by Dr Conden 1997. 12 It is my view that the plaintiff did not know the nature or extent of his personal injury until 1996 at the earliest when he became aware that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). The plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission " 13 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 14 The plaintiff submitted that it was not until he read the statement of claim in 1996, and specifically the particulars of negligence, that he was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents. 15 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 16 In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows: (a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so; (b) Failing to correctly carry out orders transmitted from Melbourne to Voyager; (c) Failing to correctly receive orders transmitted from Melbourne to Voyager; (d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne; (e) Failing to correctly transmit as orders, signals received from Melbourne; (f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne; (g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne; (h) Failing to alter the course or speed of Voyager in time to avoid a collision; (i) Failing to maintain a constant and efficient watch; (j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur; (k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne; (l) Failing to warn Melbourne that a collision was imminent; (m) Failing to give right of way to Melbourne; (n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition; (o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe; (p) Failing to maintain any or any adequate lookout. 17 Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. The plaintiff was not cross examined on this topic. 18 I accept that it was not until 1996 at the earliest, when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant's acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway. 19 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 20 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. 21 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995). 22 The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. 23 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that on application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. The applicant would not be able to demonstrate that it was fair and just that leave be granted if to do so would result in significant prejudice to the potential defendant. If there is an absence of significant prejudice to a potential defendant, there is no reason why the discretion should be exercised in favour of the plaintiff. 24 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 36 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 25 The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. 26 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean. The plaintiff medical records while he was in the Navy are available. The defendant's full compensation file is available in relation to his claim for dermatitis. The record of service card showing details of the plaintiff's service within the Royal Australian Navy (Ex C) are available. However, the plaintiff's promotional and service files are not available. 27 The plaintiff has had relatively few employers since leaving the Navy. From October 1967 for two to three years as a refrigerator mechanic with Golden North Dairies. This company was deregistered in 1996, and I infer that at this stage, no records are available in relation to the plaintiff's employment there. 28 In 1972 the plaintiff was employed by Whyles Shock Absorbers for approximately 12 months. Whyles Shock Absorbers has since been taken over by Munro's. Munro's do not hold records for more than 10 years. The person spoken to at Munro's by the defendant's investigator did not know if there were employees at Munro's who were formerly employed by Whyles Shock Absorbers. There were about 200 employees most of whom were the same age or older than the plaintiff. However, it appears that there are records available because the plaintiff has trade certificates. Defendant's investigator was told that Munro's hold records of those who have qualifications. In 1974 the plaintiff was employed for a short time at Chrysler as a fitter. There were only four employees in the powerhouse. The plaintiff does not keep in touch with any of the people he worked with during this seven year period. However it is able to provide the names of his supervisors throughout that time. There may be people who worked with the plaintiff during those times that can give evidence. During those seven years the plaintiff's claim is not that he was unable to work but rather is that he would have been promoted at an earlier stage had he not been forced to leave the Navy in disappointing circumstances. 29 From 1974 to date the plaintiff has been in full time employment with Mobil. I infer that the plaintiff's records with his current employer are available. The defendant has interviewed the plaintiff's supervisor Mr Judge who could not speak more highly of the plaintiff. 30 In relation to the plaintiff's medical history, there is a report by a Navy doctor of the plaintiff's examination prior to being enlisted. It shows that the plaintiff was in good physical and mental health. The plaintiff's medical file during this period in the Navy is available. Immediately after the plaintiff was discharged from the Navy he was examined by the defendant's doctors in relation to his dermatitis condition. He saw the defendant's doctors between 1967 and 1969. These records are available. One of the defendant's doctors has no memory of the plaintiff and others on the Melbourne, and another doctor has not been located. The plaintiff's dermatitis did not flare up for a period of 20 years. It flared up in 1994 when the plaintiff saw Dr Burdon-Jones. A report of this consultation is available. 31 The plaintiff has never sought medical treatment for a psychiatric problem until he saw Mr Wu 1996. About nine years ago the plaintiff suffered cancer of the bladder and had polyps removed from his bowel. He was treated for his bladder condition as Ashford hospital in South Australia and his treating specialist is Dr Derwin Williams. He was admitted to St Andrews hospital for an operation on his bowel and his treating specialist is Dr Graham Sinclair, a urologist. He continues to see these specialists with his ongoing medical problems. I infer that these medical records are available. There is a large amount of documentary evidence covering the significant periods of employment and medical history. Where there are small gaps in the plaintiff's employment history it is likely that witnesses may be able to give evidence. 32 After I have taken into account all of these matters, I am satisfied that the defendant will not suffer "significant prejudice" and will be able to obtain a fair trial. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause. 33 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 27 May 1996.

(2) Costs are costs in the cause. **********

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