Winston v Commonwealth of Australia

Supreme Court of NSW|2021-02-02|Before: Harrison J

Judgment

HIS HONOUR: On 3 June 1969, at night in the South China Sea, HMAS Melbourne and USS Frank E Evans collided. The Evans was severely damaged and part of it sank. Seventy four members of its crew were killed and others were injured. Robert Winston was then a serving naval airman aircraft handler on the Melbourne asleep in his bunk at the time of the collision. As the result of what occurred, and Mr Winston's involvement in the rescue and evacuation of survivors, he sustained significant and continuing injuries and disabilities, to the details of which later reference is made. On 29 October 2019, Mr Winston filed a statement of claim seeking damages alleging that his injuries are the result of the negligence of the Commonwealth of Australia. By its defence filed on 10 July 2020, the Commonwealth has denied his allegations and contends that Mr Winston's claim is barred by operation of s 14(1)(b) of the Limitation Act 1969. Accordingly, by his notice of motion filed on 17 July 2020, Mr Winston seeks an order pursuant to s 60G of the Limitation Act extending the time within which to commence these proceedings.

Background facts

Mr Winston affirmed an affidavit dated 20 May 2020 that was read without objection in support of this application. Mr Winston describes in some detail his experience of the collision between the vessels and the frightening events that unfolded at that time. It is unnecessary to recount those matters here, principally for the reason that the Commonwealth does not dispute the fact that Mr Winston's injuries and disabilities were at least in part caused by, or arose out of, the collision and its aftermath.
Relevantly for present purposes, Mr Winston deposed to the following matters: "20. The first time I went ashore after the collision was at Singapore where the Melbourne was tied up for four or five days. I got very drunk ashore and drank everything from beer, wine and rum. For many years I continued to drink heavily when I got the opportunity and I did this to deaden my nerves and to get sleep as I have nightmares. For many years I believed my edgy nerves and stress were a normal reaction to the collision, and I was not then aware that I was suffering a psychiatric illness caused by the collision. 21. When the Melbourne finally sailed back through the heads at Sydney one of the plates on her side started to peel off and this caused everything about the collision to flood back through my mind. The Melbourne then went to Cockatoo Island for repairs. I got drunk whenever I could. Prior to the collision I hardly had any alcohol and had never been drunk. 22. In about October or November 1970 I was billeted at HMAS Albatross. I was pleased with this shore posting as I did not want to go back to sea. The thought of going back to sea made me very anxious. I believe that toward the end of 1970 I was sent back aboard the Melbourne when it sailed to Japan to take part in Expo 70. I had nightmares and was very nervous. I would not go and sleep in our mess and rather slept on the flight deck under the wings of an aircraft. I was fearful. I wished to be back on land. I continued to drink heavily when I could. 23. At the beginning of 1971 I noticed that I became dizzy and I sat down and everything went blank in my mind. The RAN sent me to a hospital to have tests carried out and these tests took place over about six months. I attended Concord Hospital and Prince Henry Hospital. I continued my duties, however at the motor transport section at HMAS Albatross as a driver. Eventually I was not allowed to drive as I was then prescribed numerous drugs. 24. I was discharged from the RAN on 22 November 1972. I was not given any reason. I did not wish to leave. I wished to continue in the RAN and so I told my supervisors and a sick bay attendant. I was discharged PUNS. Attached hereto and marked with the letter 'A' is Department of Defence (Navy Office) document dated 3 July 1984 and signed by a Mr J Brown. I did not see this document until about June 2019. I was never told why I was discharged. I was not given any assistance on or after discharge. I received no medical or psychiatric help. I was virtually abandoned. … 27. As a consequence of my actions in assisting the USS Evans on 3 June 1969 I was awarded the Queen's Commendation for Brave Conduct and the Navy Commendation Medal. ... 28. The Commonwealth Department of Veterans' Affairs has accepted that I suffer from PTSD and major depressive disorder caused by my involvement in the collision. Annexed hereto and marked with the letter 'C1' is a letter from the Military Compensation and Rehabilitation Service dated 21 November, 1996 acknowledging that I suffered a psychiatric injury by way of PTSD and depression arising out of the collision. 29. No one has explained to me the nature and extent of the injuries. 30. I did not become aware of the negligent acts of the Commonwealth that were partly the cause of the collision until my solicitor showed me the Statement of Claim in this action on or about 14 November 2019. 31. On or about 14 November 2019 my solicitor showed me a report of Associate Professor Jennifer Batchelor dated 29 July 2019. Annexed hereto and marked with the letter 'D' is a copy of that report. Until that date I had no knowledge that I was suffering from brain damage as a consequence of my alcoholism, which alcohol I used to numb the effects of my anxiety, stress and depression, and to help me sleep. I was not aware that my drinking was part of an Alcoholic Disorder, which was a psychiatric injury caused by the collision until I read this report. Further, until seeing that report I was not aware that I had suffered damage to my brain by way of cognitive impairment as a result of this excessive drinking. 32. Upon my discharge from the RAN on 22 November 1972 I continued to drink alcohol heavily. I did however manage to remain employed up until 30 May 1997. I have not worked since that date as I have been assessed as being totally unfit for any kind of employment. … 37. In the years since the collision I have at times tried to reduce my drinking, but invariably I find the need to resume my habit in order to settle my nerves. Currently I am drinking some beer, wine and rum each day."
Mr Winston was cross-examined. The following portions of that evidence should be noted: "Q. It's the case, Mr Winston, that you were discharged in November 1972? A. Yes. Q. Do you recall that, between when you first reported your dizziness and blanking out and when you were discharged, you were assessed by a number of different consulting specialists? A. Yes. Q. Can you recall also being assessed by naval officers who were members of what was referred to as the Medical Board of Survey? A. Yes. Q. Can you recall having any discussions with the members of the board about your symptoms and their possible cause? A. No. Q. Do you recall the board members recommending to you that you should totally abstain from alcohol? A. No. Q. And strongly advising you regarding complete abstinence from alcohol? A. No. … Q. Can I take you then, Mr Winston, to paragraph 28 of your affidavit. You refer there to the Commonwealth Department of Veterans' Affairs having accepted that you have suffered from PTSD and major depressive disorder caused by your involvement in the collision, is that right? A. Yes. Q. Was that decision of the Department of Veterans' Affairs in response to a claim that you made for compensation? A. No. Q. It was something that they did off their own bat. A. No. It was something that Dr Altman got me. Dr Altman was the one that told me to put that in. Q. I see. Are you able to say why he suggested you do that? A. He just said that I've got PTSD and that was it. Q. So, he told you that you had PTSD and that that was something that you might be able to be compensated for, is that right? A. He just said that he was going to treat me for the PTSD. Q. What about the claim that you made for compensation, how did that come about? A. That claim was for my military compensation claim. Q. Yes. And is that a claim that you made? A. I was recommended to make that through the Vietnam Vets. Q. I see. Was that in consultation with Mr Frank Grady? A. Yes. Q. Can you recall how it came about that he suggested to you that you should make that claim? A. I fell off my perch. Q. All right. And that is something you spoke to Mr Grady about? A. Mr Grady took me up to see Mr Altman. Q. From there, is it the case that in discussions with Mr Altman telling you that you had PTSD, you submitted a claim for compensation, is that right? A. I submitted the claim for my medical-- yeah. … Q. C1 on the top. Mr Winston, that is the document from the Military Compensation Rehabilitation Service accepting that you had suffered injury in the course of the collision, is that right? A. Yes. Q. And it indicated that you, according to them, they determined that you had suffered an injury arising out of or in the course of your military service, namely post-traumatic stress disorder, is that right? A. Yes. Q. And that is something that Dr Altman had said to you when you first went and saw him, is that right? A. Yes. Q. He, and/or Mr Grady, had suggested that you could make a claim in relation to that condition, is that right? A. That was because I tried putting in a claim through the normal channels for a DVA and DVA kept knocking me back so they suggested that I go through this way. Q. I see. And is it the reason the DVA kept knocking you back was because the collision didn't occur in the context of military operations or something to that effect? A. According to them it wasn't. Q. Thank you. Non war-like service, is that right? A. Mm-hmm. Q. So that was the DVA knocking back your claims and so the suggestion was made that you try this route, is that right? A. Yes. Q. And this was accepted in this instance in 1996. A. Yes. Q. Can you recall, in relation to your application that was made, that Dr Altman prepared reports for you to submit? A. Which I never saw. He made them and that was handed in. Q. But you do recall that he did make some reports? A. As I know, he made a report. Q. But supported your claim, is that right? A. Yes. Q. And you were aware at the time that he was doing that for you? A. No. Q. You weren't aware. Is that your evidence? A. That's right. Q. Off his own bat he was doing that without any request from you. A. He must have got it from Frank Grady. Q. So, Mr Grady was liaising with Dr Altman, was he, on your behalf, in relation to your claim? A. Yes. Q. Is it right that Mr Grady was then liaising with you about the progress of your claim? A. Yes. Q. Did he tell you about the reports that Dr Altman was preparing? A. No. Q. He said nothing to you about that. A. No. He just told me that the claim was going through and that was it, and I had to go up to see the solicitor and that was it. Q. I see. What solicitor was that? A. Wyburns. Q. In relation to Dr Altman's reports, is it your evidence, I think you have just said, that you did not see those reports at the time, is that right? A. That's right. Q. You have seen them subsequently? A. I have seen them since. … Q. Mr Winston, the first of those reports is dated February 1996, do you see that? A. Yes. Q. Can I take you to the signature page, so the last page of that report, the February report. I think it is four pages in, Mr Winston, there might be two reports annexed in that bundle. A. Yes. Q. And you will see that the report was copied to Mr Grady, and that's the person who was liaising in relation to your claim, is that right? A. That's right. Q. And to Dr Alexander, is that right? A. That's right. Q. And was Dr Alexander your treating GP at the time? A. Yes. Q. And did you ask of either Dr Alexander or Mr Grady what was in the reports that Dr Altman was preparing for you? A. No. … Q. … Mr Winston, sitting here now, having seen the reports, would you agree with me that the content of them was very relevant to the claims that you were making at the time, in 1996, for compensation? A. I'd say they would have been. Q. Because they were indicating, for the benefit of the Department of Veterans' Affairs, what Dr Altman considered your diagnosis to be, is that right? A. Yes. Q. And he was also giving a prognosis of your future progression of those illnesses, isn't that right? A. According to that, yes. Q. And I suggest to you that you would have been very interested in what Dr Altman said about your health, and whether it supported your claim. Do you agree with that? A. No. Q. And is that because you say there was nothing for you to know about the claim? A. It was in the hands of the solicitor, and that's where I left it. Q. I see. So as far as you were aware, you had PTSD and Dr Altman, liaising with Mr Grady, was going to put in a report to that effect and that was all that concerned you? A. Yes. Q. I see. If you had asked Dr Altman, or Mr Grady, or Dr Alexander about what was going in in support of your application, they would have told you, wouldn't they? A. I suppose so. But at that stage, I wasn't in the mind. Q. Dr Altman has been treating you since 1995, is that right? A. That's right. Q. He's still treating you? A. Yes. Q. And is it the case that for a long period of time, perhaps up till 2019 or '20, you were seeing him once a month? A. Yes. Q. And you now see him quarterly, is that right? A. That's right. Q. And it's the case that you've been hospitalised on some occasions in relation to your mental health issues, is that right? A. That's right. Q. And was Dr Altman your treating doctor throughout all of those times? A. Yes. Q. And Dr Altman has also prescribed medication for you in that period, but I understand you're not taking that anymore, is that right? A. That's right. Q. Can I take you to paragraph 29 of your affidavit. You will see at paragraph 28, Mr Winston, that you refer to the letter C1, which I've taken you to, which acknowledged that you suffered a psychiatric injury by way of PTSD and depression arising out of the collision. And then at paragraph 29, 'No one has explained to me the nature and extent of those injuries.' Do you see that? A. That's right. Q. And are you referring there to the PTSD and depression? A. To everything. Q. I see. So that's the PTSD, and the depression, and additional alcohol abuse disorder, is that right? A. That's right. Q. Now, they're all matters, aren't they, for which Dr Altman has been treating you since 1995? A. PTSD? Yes. Q. But you say he hasn't - I'm sorry? A. And the depression, as well. Q. And the depression. I see. And it's the case also, isn't it, that Dr Altman was also treating you in relation to your alcohol abuse? A. Not really, no. Q. Did he ever say anything to you about your alcohol abuse? A. He just said that I've got to cut back, and that's it. Q. I see. And can you recall why he was telling you to cut back? A. No. Q. Did he say anything to you about the fact that the alcohol was related to your PTSD because you were drinking to forget about the matters that were the cause of your PTSD? A. Could have. Q. I see. You don't have a specific recollection, but he could have said things along those lines, is that right? A. That's right. Q. And is it the case that - just looking at paragraph 29 - do you mean to say that in all of the time that he has been treating you, Dr Altman has never said anything to you about the nature and extent of your injuries? A. In what way? Q. Well, for example, do you mean to say that Dr Altman has never said anything to you about the various issues that you told him you were having and that they were symptoms of post-traumatic stress disorder, or depression linked to that disorder? A. He has talked to me about how to go about trying to relieve myself and how to calm down. Q. All right. And that's to calm down from the various symptoms that you've reported to him over time, is that right? A. And when I get anxious and things like that. Yes. Q. And is it also the case that he has sought to explain to you how the issues that you experience developed as a result of the collision? A. He explained what happened after I had my motorbike accident, and that's how come everything came up. Q. I see. You're referring to a motorbike incident that occurred in 1993, is that right? Or thereabouts? A. Yeah. Q. And that, according to Dr Altman, aggravated your PTSD, is that right? A. That's right. Q. And Dr Altman spoke to you about that? A. Yes. Q. And did he also speak to you about how the injuries might best be treated? So how to calm down and things like that? A. Yep. That's why I was on medication. Q. And did he also discuss with you whether, with treatment, your symptoms might improve? A. He didn't say if they would improve, how far they would improve. Q. I see. So just coming back to paragraph 29, when you say no one has explained to you the nature and extent of your injuries, it's the case, isn't it, that you have had discussions with Dr Altman about your injuries and the nature of the injuries, would you agree? A. We've had discussions, yes. But about actually - how would you say it - to the degree that I can't really say what those discussions were. Q. I see. So you accept there are discussions that you've had about the injuries, but sitting here today, you're not able to recall precisely what they were, is that right? A. I can't remember some things I did the other day. Q. All right, I understand. And is it the case also that in the course of your treatment, you were free to speak to Dr Altman about things that were bothering you, and he would seek to explain and assist you with those issues? A. When we had talks with him. Q. Yes. So was that in the course of your monthly consultations with him? A. Monthly consultations, and when I was in the clinic. Q. That's the Evesham clinic, is that right? A. Yes. Q. And your relationship with Dr Altman over time has been a fruitful one, would you agree? A. Yes. Q. And there is an open dialogue between the two of you about your injuries and what you might be able to do to assist you in coping with those? A. Well, he has told me if I need any extra help, just make a phone call and I'm in. Q. I see. All right. And what about Dr Alexander? So he was the GP at the time Dr Altman diagnosed you with the PTSD and the depression. Was he someone that you could - and did - speak to about your injuries? A. No. Q. You didn't have any discussions with him at all? A. No. Q. Did he talk to you at all about what Dr Altman had reported to him? A. Nope. Q. You had no discussions with him at all. A. No. Q. Is it the case, though, that you could have asked him if you had sought to about what was happening with Dr Altman and what Dr Altman had reported to him? A. Dr Altman was the bloke that was taking care of that side and Dr Alexander was the one who was taking care of me on the medical side. Q. So, you saw them as separate. A. Yes. Q. Can I take you then, Mr Winston, to paragraph 31 of your affidavit, which is just at the bottom of that same page. Have you read that, thank you. It is the case, Mr Winston, that when you first saw Dr Altman, so 1995-1996, you were drinking heavily. A. Yes. Q. Do you remember that in early 1996, you told him that you were drinking five beers a day and you had been doing that on and off since the accident. Would you agree? A. Yep. … Q. Indeed a few months later, so still in 1996, perhaps consistently with what you have just said, you told him that you were drinking approximately 4-6 schooners of alcohol every day. A. Like I've said, I was drinking that plus more at times. Q. I think you have given evidence that Dr Altman told you to cut down on your alcohol, is that right? A. He suggested I cut down. Q. Did he suggest that to you because, in his view, it was a problem? A. Not really because at that stage I could handle it. … Q. Mr Winston, just to clarify, my last question, did Dr Altman tell you to cut down because he, Dr Altman, and his saying this to you, thought that your drinking was a problem. A. He suggested I cut down, yes. Q. The reason, I suggest, that he asked you to do that was, among other things, to do with the medication you were taking. Do you recall that? A. Could have been. Q. At paragraph 31 of your affidavit, Mr Winston, you say that you weren't aware that your drinking was part of an alcoholic disorder until you read the report of Dr Batchelor in 2019. It is the case, though, that you had reported your heavy drinking to Dr Altman as early as 1996, is that right? A. Yep. Q. You continued to report on your alcohol intake during the time that you saw him, is that right? A. Mm-hmm. That's right. Q. He was telling you that you needed to cut back, is that right? A. Yes. Q. Is it your evidence that Dr Altman never said to you that your alcohol abuse was related to your PTSD? A. Like I said, I can't remember. Q. Can I take you then, Mr Winston, to paragraph 26 of your affidavit and you will see there is a series of documents that you say are RAN documents that are available. The last of those is the report of the combined USN and RAN Board of Investigation into the collision, do you see that? A. Yes. Q. Are you able to say when you became aware of the Board of Investigation? A. I knew there was an investigation because it was held when we were in Singapore and it was held in Subic Bay. Q. So, that was when you were still on the Melbourne, is that right? A. That's right. Q. That occurred shortly after the collision in 1969. A. That's right. Q. When did you first become aware of the findings that the board made? A. ..(not transcribable)..became aware of the findings of the board until recently. Q. Is it the case that you never had any discussions at that time, as far as you can recall, about what the Board of Investigation found? A. That's right. Q. So, no discussions with any crew members who might have become aware of it? A. Nope. Q. No discussions at all? A. No. Q. What about the court-martial of Captain Stevenson that happened in August of 1969? Were you aware of that happening at the time? A. I knew he was getting court-martialled. Everyone did. Q. Did you know why? A. No. Q. Did you understand that it had to do with the collision? A. Naturally, it would have been the collision. Q. But you weren't sure of what the specifics were. A. That's right. Q. Is it the case, Mr Winston, that over the years you have been involved in organising memorials to mark the anniversary of the collision? A. In what way? Q. As a contact person for information about upcoming memorials? A. On and through the network, yes. Q. What network is that? A. On the emails. If anybody wanted to know anything, then I just pass it on. Q. I see. Do you recall being a recognised point of contact in relation to those memorials? A. At one stage. Q. Would that have been around the time of 1994 through to about 1999? So, around the 25th and 30th anniversaries? A. 25th and the 30th, yes. Q. Is it your evidence, Mr Winston, that in the course of attending those events, you never had any discussions with other attendees about how the accident happened? A. We didn't really want to talk about that side of it. Q. You didn't have any discussions about the Board of Investigation at all. A. No. Q. Or what the board found. A. No. Q. I want to suggest to you, Mr Winston, that it is likely, isn't it, that you had discussions about those issues in the course of catching up with members of the Melbourne or the Evans. … Q. Finally, Mr Winston, is it the case that you, and I think you have said this, you were involved in a motor vehicle accident in around 1993, is that right? A. Yes. Q. Did you ultimately commence legal proceedings in relation to that accident, in the Supreme Court? A. There were legal actions over it because I was booked. Q. Did you make any similar approaches for legal advice in relation to the Melbourne-Evans collision before seeing your current solicitor? A. No. Q. Do you agree with me that that is something you could have done in circumstances where you had been told that there was a link between your injuries and the collision? A. No. Q. You don't agree with that. A. I didn't think about anything like that."

Consideration

Sections 60G and 60I of the Limitation Act are as follows: 60G 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. 60I 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) …
Section 14 of the Limitation Act is relevantly in these terms: 14 General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: (a) … (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty, (c) …
By operation of Schedule 5, cl 4(1) of the Limitation Act, s 60G(2) is applicable to causes of action that accrued before 1 September 1990: Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57 at 177. Clearly enough, that provision permits a court to extend time for the bringing of an action only where the court is satisfied of the matters set out in s 60I and it is just and reasonable for an extension of time to be granted: s 60G(2). Relevantly for present purposes, a court may make an order under s 60G if the application is made within the period of three years referred to in s 60I(1)(b).

Section 60I(1)(a)(i)

The personal injury in respect of which Mr Winston seeks an extension of time to make a claim for damages against the Commonwealth is not limited to PTSD but is particularised in paragraph 7 of the statement of claim to include depression, anxiety and alcohol abuse disorder, as well as cognitive brain damage consequential upon alcohol abuse disorder.
At paragraph 28 of his affidavit, set forth above, Mr Winston refers to the claim for compensation that he submitted to the Department of Veterans Affairs. That application was supported by reports from Dr Altman dated 28 February 1996 and 31 October 1996. It was Dr Altman's view that Mr Winston suffered from PTSD, major depression and alcohol abuse as the result of the maritime collision on 3 June 1969. Dr Altman noted that Mr Winston had been admitted to a clinic in June of both 1995 and 1996 due to the severity of his symptoms.
In November 1996, the Military Compensation and Rehabilitation Service informed Mr Winston of its finding that, on the basis of the available evidence, he suffered PTSD arising out of, or in the course of, his military service on 3 June 1969.
Mr Winston has accepted, and I find that he was told by Dr Altman in 1996, that he suffered from PTSD. It is unnecessary for the purposes of considering what Mr Winston knew in terms of s 60I(1)(a)(i) to determine what might have been his awareness of the nature or extent of that personal injury.

Section 60I(1)(a)(ii)

The signs displayed and the symptoms complained of by Mr Winston by no later than November 1996 are generally consistent with those more recently described by the parties' medical experts. Professor Coyle considered that Mr Winston was fully aware of the chronic and profound status of his PTSD when assessed by him on 25 September 2019.
Mr Winston said that he was not aware that he was suffering from brain damage as a consequence of his alcoholism until he saw the report of Associate Professor Batchelor dated 29 July 2019. This was in November 2019. He said that he was not aware that his drinking was part of an alcoholic disorder, a psychiatric injury caused by the collision, until he read that report. Only then did he become aware that he had suffered damage to his brain by way of cognitive impairment as a result of his excessive drinking.
The Commonwealth submitted that the evidence does not in any event establish that Mr Winston in fact sustained an alcohol related cognitive impairment. However, even accepting for the purposes of the argument that he did, and that he was not aware of this impairment at the relevant time, the Commonwealth emphasised that this would not preclude a finding that he was aware of the "nature or extent" of his psychological condition since at least 1996. The Commonwealth referred to the observations of Meagher JA in F J Walker Ltd v Webber [1989] NSWCA 76 at 6 as follows: "One can know 'the nature and extent' of one's injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial, and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final fate."
It is not in dispute that Mr Winston knew by 1996 that he suffered from severe chronic PTSD, major depression and that he had succumbed to alcohol abuse, all as the result of the collision, for which he had been admitted to a clinic by reason of the severity of his condition. His psychiatric condition rendered him totally and permanently unfit for work. Mr Winston has been aware since 1996 that he suffers from a psychiatric condition and that it was having and would continue to have a profound impact upon him. The Commonwealth submitted in these circumstances that Mr Winston knew "the nature and extent" of his injuries by 1996, even if he was ignorant at that time of the possibility that his condition was associated with or might ultimately lead to cognitive impairment.
In my opinion, that submission must be correct. The words "nature" and "extent" summon an appreciation of general characteristics, not of detailed or specific matters. For example, a nominal plaintiff who allegedly contracted hepatic angiosarcoma as the result of negligent exposure to a toxic substance and who was given such a diagnosis would presumably be aware of the nature and extent of his or her condition as a potentially fatal fast growing malignancy, even if the precise effects of the cancer upon that person or the particular disabling mechanism of its progress and ultimate prognosis were unknown. The burden of Meagher JA's remarks in Walker v Webber is that a plaintiff who seeks an extension can hardly expect to be entitled to take refuge in ignorance of the particular if otherwise possessing an understanding or appreciation of the general.
In my opinion, Mr Winston knew and appreciated by at least the end of 1996 that he was suffering from PTSD and associated psychological or psychiatric disabilities secondary to alcohol abuse and as such was aware of the nature and extent of the personal injury suffered.

Section 60I(1)(a)(iii)

At paragraph 30 of his affidavit, Mr Winston said (in somewhat unfortunately formulaic terms that probably do not do justice to his actual state of awareness of the connection in question) that he did not become aware of the negligent acts of the Commonwealth that were partly the cause of the collision until shown the statement of claim on or about 14 November 2019. The Commonwealth has criticised that evidence as it is said to rest upon the unlikely proposition that Mr Winston commenced these proceedings without being aware of the very allegations being advanced. However, for better or worse, that proposition does not in my experience appear to be either unlikely or even unusual.
I accept that s 60I(1)(a)(iii) is "concerned with ignorance of the existence of acts and omissions rather than legal conclusions": Dedousis v Water Board. Mr Winston bears the onus of identifying the particular acts or omissions of the Commonwealth of which he became aware no more than three years prior to the commencement of the proceedings. In that respect the Commonwealth has understandably criticised his evidence at paragraph 30 as too general and accordingly insufficient for that purpose.
There is no doubt that Mr Winston is aware that his personal injury is the result of his terrible experiences from the collision and how he has been able to process and deal with them. It is however not without significance to observe that the Commonwealth has filed a defence by which it denies that it was negligent in the respects alleged by Mr Winston or in any way at all. Moreover, the Commonwealth has placed considerable emphasis upon the contention that Mr Winston has not been able to establish even a prima facie case of negligence against it, inferentially maintaining that there is no connection between anything that the Commonwealth did ("act") or failed to do ("omission") that renders it vulnerable to his claims in these proceedings.
I have had the considerable advantage of observing Mr Winston as he was appropriately cross-examined by senior counsel for the Commonwealth. His case in negligence against the Commonwealth particularises a series of allegedly negligent acts and omissions that derive from evidence that was given in Captain Stevenson's court martial and a Board of Investigation into the circumstances surrounding the collision. That evidence and the opinions about it are both voluminous and complicated. Any asserted connection between the mountain of facts and opinions exposed by this material and Mr Winston's injury is not something that emerges with ease or alacrity.
I am satisfied that Mr Winston never drew a relevant connection between his personal injury and any act or omission of the Commonwealth at any time before he saw the statement of claim. I accept his evidence that he did not become aware of the connection before he did so. I have, with great respect to Mr Winston, some continuing doubt that he has become aware of the connection even now. It follows that I am satisfied that Mr Winston was unaware of the connection between his personal injury and any act or omission of the Commonwealth at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted.

Section 60I(1)(b)

Basten JA commented upon s 60I(1)(b) in Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 as follows: "[11] Paragraph (b) of the provision has two functions. The first is to ensure that, on the assumption that the plaintiff became aware of the matters listed in par (a) prior to making the application for extension of time, the Court must be satisfied that the application was made within three years of achieving that state of knowledge. The second function, implicit in the words in parenthesis, is that the application was also made within three years of the time at which the plaintiff 'ought to have become aware' of all of the matters listed in paragraph (a)… … [30] Paragraph (b) requires the Court to be satisfied that the application to extend time was brought within three years of the date when the plaintiff became aware 'or ought to have become aware' of the relevant matters specified in para (a). Thus, even if the date of actual awareness falls within the three year period, the Court is required to consider whether the plaintiff ought to have become aware of the last of the relevant matters at a date prior to the commencement of that period. [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 AJA (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. … [59] On the basis that the plaintiff lacked a relevant level of awareness of the extent of his injuries (and possibly their connection with the collision) the next relevant issue is whether he ought to have had that level of awareness. As already noted, there is some artificiality in seeking to separate the normative questions raised by this provision from the 'just and reasonable' test to be applied in the exercise of the discretion to extend time. Nevertheless, the factors relevant to par (b) are more discrete and should therefore be dealt with separately."
I am not satisfied that Mr Winston ought to have become aware of the matter listed in s 60I(1)(a)(iii) at any time earlier than he did. As the authorities make clear, this issue is not to be determined by analogy with the principles concerned with constructive knowledge. In a way that I trust is already apparent from my previous conclusions, there is a considerable air of artificiality attending the contention or expectation that a man with Mr Winston's experience, qualifications and limitations, including his considerable medical issues, ought somehow to have discerned the connection between the matters to which s 60I(1)(a)(iii) refers.
Mr Winston made a claim for compensation on the recommendation of Dr Altman. In due course the Military Compensation Rehabilitation Service accepted that he had suffered an injury arising out of the collision. Mr Winston said that his claim was in the hands of his solicitor and that was where he left it. He did not give evidence about commencing proceedings such as the present proceedings and was not cross-examined about why he did not seek legal advice to pursue his current claims much earlier. Clearly enough, Mr Winston's claim for compensation was not based upon the fact, or the need to establish, that the Commonwealth was somehow at fault in the tortious sense for what happened to him.
I take the evidence to establish that Mr Winston was in those circumstances content to receive whatever benefits or assistance he became entitled to from the Military Compensation Rehabilitation Service. He continued to mix with former shipmates at anniversaries of the collision but there is no suggestion that there was any discussion about the Commonwealth's legal liabilities to any members of the crew of the Melbourne or that any of his fellow crewmembers had made, or had suggested to him that he should make, a claim for damages. Indeed, Mr Winston's evidence was that he never had any discussions with other anniversary attendees about how the accident happened. Nor am I prepared to accept that an understanding of the difference between workers compensation claims and damages claims is a distinction that is generally appreciated in the community at large or by Mr Winston in particular. Mr Winston can also hardly be foisted with the consequences of an apparent failure by his solicitor to draw such a distinction to his attention. I reject the notion, if it is advanced, that Mr Winston ought to have become aware of the matters listed in s 60I(1)(a)(iii) upon the basis that those assisting at the time could have been expected to give him advice about such matters. Mr Winston specifically said in any event that he made no approaches for legal advice in relation to the Melbourne-Evans collision before seeing his current solicitor. He disagreed with the suggestion that that was something he could have done in circumstances where (presumably if) he had been told that there was a link between his injuries and the collision. Mr Winston said frankly: "I didn't think about anything like that".
At [62] in Shaw, Basten JA referred to the plaintiff's application in the context of s 60I(1)(b) as follows: "[62] A second possible reason for not taking earlier steps to apprise himself of his medical needs and possible legal entitlements may be found in the psychiatric illness about which he complains. Thus, failure to talk about the traumatic event may be either a symptom or a result of post-traumatic stress disorder. The policy underlying paragraph (b) would not be furthered by the exclusion of plaintiffs on the ground that they have not taken relevant steps in their own self-interest, where the injury itself may be a significant cause of the failure to take such steps."
Later, at [65], his Honour went on to indicate that "[t]here is a distinction to be drawn between a lack of insight into one's condition and an independent unwillingness to explore further that of which one is put on notice." In the present case, the opinion of Professor Batchelor concerning Mr Winston's appreciation of his condition is expressed in her 29 July 2019 report as follows: "The results of the current assessment revealed definite evidence of acquired cognitive impairment. Against a background of average Full Scale intelligence, Mr Winston demonstrated significant deficits on tests of the ability to retain information over time, to generate strategies to effectively deal with novel and unusual tasks, to maintain a given train of thought, and to reason. His results on tests of that nature fell well below those expected on the basis of his age, education and intellect. Mr Winston has a documented history of alcohol abuse. He has also been diagnosed as suffering post-traumatic stress disorder and major depressive disorder. Although each of those conditions can result in cognitive dysfunction, the profile of impairment evident on testing (with a significant disturbance of delayed recall, verbal fluency, hypothesis generation and reasoning and a relative sparing of encoding, processing speed and working memory) bears more similarity to the deficits that characterise chronic alcohol abuse (even on cessation of heavy, regular drinking) than those typifying post-traumatic stress disorder or depression. It is therefore concluded that it is more probable than not that the significant cognitive impairments described in Sections 2 and 3 of the current report are referable to chronic alcoholism. In response to the specific issues listed in your letter of referral, I offer the following comments: … The results of the current assessment revealed definite evidence of acquired cognitive impairment. Specifically, Mr Winston's ability to retain information in memory, to generate strategies to effectively deal with new and unusual tasks, to maintain a given train of thought, and to reason proved significantly disordered. As detailed above, the profile of impaired and spared cognitive abilities was more in keeping with that reported in the literature to characterise chronic alcohol abuse than that seen in association with either post-traumatic stress disorder or major depressive disorder. It is therefore concluded that to the extent that his alcohol abuse is secondary to involvement in the collision between The Melbourne and Frank E. Evans, then so too are his cognitive impairments. … As stated above, reference to chronic alcohol abuse is considered to represent the most probable explanation of the profile of cognitive impairment identified during the current neuropsychological assessment. … On interview, Mr Winston reported that he was not aware of any cognitive impairment. The literature indicates that impaired insight into cognitive dysfunction is frequently evident in individuals who abuse alcohol. … As indicated above, it is reasonable for Mr Winston to not be aware of cognitive impairment. The literature indicates that a lack of insight into cognitive dysfunction is frequently evident in individuals who abuse alcohol."
Basten JA's further observations at [70] should be noted: "[70] In assessing these matters, it must be borne in mind that the question is not whether the plaintiff ought to have sought legal advice in relation to any rights he may have had against the Commonwealth, but whether he ought to have become aware of the factual matters identified in par (a), or at least of the facts which it is found he was unaware of at the relevant time..."
In the circumstances of this case, Mr Winston's psychiatric condition appears to me to place him well outside the range of adequately functioning individuals who might be classified as those who ought to have been aware of the connection between his personal injury and the Commonwealth's acts or omissions. The word "ought" rather suggests some reasonable expectation falling short of an express obligation or duty to do something. It does not seem to me that Mr Winston ought to have become aware of the connection referred to in s 60I(1)(a)(iii) before he became aware of it in fact. To suggest otherwise fails in my opinion to give adequate or sufficient weight to the psychiatric condition under which he was labouring.

Section 60G

The Commonwealth submitted that it would not be just or reasonable to extend the limitation period for the cause of action upon which Mr Winston sues. The Commonwealth's submissions in this respect were detailed and comprehensive and were to the following effect.
The discretion to extend time "must be exercised in the context of the rationales for the existence of limitation periods": Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 551. The four broad rationales identified by McHugh J in Taylor were: (i) relevant evidence is likely to be lost with the passage of time; (ii) it is oppressive to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed; (iii) defendants, including public institutions, should be able to utilise their resources on the basis that claims can no longer be made against them; and (iv) there is a public interest in disputes being settled as quickly as possible (at 552-553). More generally, his Honour observed: "For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'."
Legislative provisions extending the time for commencing an action are to be seen against that background. An extension provision "is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case": per McHugh J in Taylor at 553. However, "whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action". Accordingly, "[t]he discretion to extend time should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question".
An applicant for an extension thus bears the onus of satisfying the Court that it is just and reasonable to grant it: Commonwealth of Australia v Smith [2007] NSWCA 168 at [49]; Taylor at 544, 547, 551 and 567. Put another way, "once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation": Taylor at 544.
The Court will not grant an extension of time where such an extension would cause the defendant actual and significant prejudice: Commonwealth v Smith [2005] NSWCA 478 at [127], cited in Shaw at [36]. As McHugh J observed in Taylor, when a defendant is able to prove that he or she will not now be able fairly to defend him or herself or that there is a significant chance that this is so, "the case is no longer one of presumptive prejudice". In a case where actual prejudice of a significant kind is shown, "it is hard to conclude that the legislature intended that the extension provision should trump the limitation period". See also Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 at [119].
The Commonwealth submitted, having regard to these authorities, that Mr Winston had not in the circumstances discharged his onus of showing that an extension of time would be just and reasonable. The Commonwealth reasoned as follows.
Mr Winston relied heavily on what might generally be described as the Voyager cases, which notoriously also involved a naval collision at sea. The Commonwealth maintained that there was no other relevant similarity. The Voyager collision occurred between two Australian naval vessels for which the Commonwealth bore ultimate responsibility. Indeed, in many of the Voyager cases the Commonwealth admitted liability: see, for example, Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39. In contrast, in the present proceedings the Commonwealth denies liability. Further, investigations undertaken closer in time to the collision found that it was the United States Government, not the Commonwealth, that was primarily responsible. Accordingly, the Voyager cases are a counterpoint, rather than an analogue to the current proceedings. Further, even in the Voyager cases, the decision whether to extend time necessarily turned on the circumstances of each individual case, as demonstrated by the refusal to grant an extension in Shaw, Commonwealth v Diston [2003] NSWCA 51, Blyth v Commonwealth [2005] NSWSC 721 and Pearce v Commonwealth [2005] NSWSC 359.
In the present case, the Commonwealth emphasised that more than 40 years have passed since Mr Winston's injuries first manifested. So far as liability is concerned, that passage of time must be considered in a context where he has identified, in no more than very general terms, the negligence of the Commonwealth upon which he relies. Mr Winston's generalised reference to the "extensive material available… regarding the circumstances of the collision" glosses over the reality that there is little material concerning allegations of negligence against the Commonwealth, as distinct from documented errors by personnel aboard the USS Evans. The Board of Investigation found that "primary responsibility for the collision rested upon [the USS] Evans". While the Board of Investigation expressed the opinion that Captain Stevenson "must bear a share of responsibility for the collision", that opinion must be read in context. In a subsequent court martial of Captain Stevenson, the charges were summarily dismissed with the Judge Advocate directing that Captain Stevenson had no case to answer and the Court entering a verdict of honourable acquittal.
Mr Winston's allegation that the "collision was caused by the negligence of officers and crew of the…Melbourne" is accompanied by 17 broad particulars. The Commonwealth submitted that Mr Winston declined to respond to requests for further and better particulars of the allegation, including, for example, as to basic matters such as the identity of the crew members and officers whose acts are alleged to have been negligent. Only seven of the 17 particulars derive in terms from the opinions expressed by the members of the Board of Investigation regarding the conduct of Captain Stevenson. Having regard to the Board of Investigation Report, the facts and evidence that will be relied on to ground the balance of the particulars is not clear.
In the face of Mr Winston's decision to decline to provide further particulars, the Commonwealth maintains that it is at a significant disadvantage in terms of being able to identify wholly and with precision the nature and degree of prejudice that would flow from the grant of an extension of time. Additionally, and apart from the question of the availability to the Commonwealth of material to meet the case, the deficiency of the pleading raises a more general question as to the viability of Mr Winston's cause of action.
In this context, the Commonwealth contends that it is not just and reasonable to put it to the considerable expense of defending the proceedings having regard to the weakness of the claim as a whole. In assessing the prejudice to a defendant, a court will have regard to the strength of a plaintiff's claim: Shaw at [40], [83]. That is because it would be unfair on a defendant "to have to expend resources on meeting a weak claim where there is little likelihood of recouping any significant part of the costs involved": Shaw at [40]. In the present case, the weakness of the claim is exposed by such limited documentary evidence as exists concerning the Commonwealth's alleged acts and omissions.
The Commonwealth submitted that the Board of Investigation noted the several steps Captain Stevenson took to avoid the collision, describing those steps as "indicative of a cautious man endeavouring to avoid a collision". The Board's comment that he "might have done more" was directly qualified by the further statement that "the Board stopped short of faulting his judgment in these matters".
In that context, the Commonwealth emphasised the Board's later comment that Captain Stevenson "must bear a share of responsibility for the collision since as Task Force Commander, he was responsible for the safe operation of all ships in the Task Unit" should be read as a comment on the responsibilities of Captain Stevenson's position rather than a statement about his culpability or causal responsibility. The Commonwealth also relied upon the tension between the Board's comment that Captain Stevenson should have "backed his engines at the time he put his rudder over" and that to have done so might have lessened the effects of the collision and the earlier opinion that to have done so "would have made no difference whatsoever".
The Commonwealth referred to the fact that charges brought by way of court martial against Captain Stevenson were summarily dismissed, with the Judge Advocate directing that he had no case to answer and the Court entering a verdict of honourable acquittal. Evidence given at the court martial indicated that the alerts Captain Stevenson sent to the USS Evans would undoubtedly have forewarned the USS Evans to the danger of a collision and, even had Captain Stevenson ordered the HMAS Melbourne's engines to be put astern as soon as a collision became inevitable, that would have made no significant difference. Captain Stevenson's son was issued with a formal apology by the Minister for Defence in 2012 for the fact of his father having been court martialled. Many of the allegations now raised by Mr Winston were dealt with comprehensively in a detailed statement prepared by Captain Stevenson in 2005, in connection with court proceedings which were subsequently discontinued.
The Commonwealth submitted that even if proper particulars of the negligence alleged had been provided and a viable cause of action had been pleaded, the Commonwealth's extensive enquiries into the whereabouts of potential witnesses have revealed that a number of key witnesses, including Captain Stevenson, are no longer available. Although some witnesses from the court martial remain available, they would, if called, be required to give evidence of events that occurred on a single night some 41 years ago. That gives rise to the difficulty identified by Hodgson CJ in Eq in McLean v Sydney Water Corporation [2001] NSWCA 122 at [35]: "… the dimming of the memory of witnesses from the passage of many years inevitably means that a trial would involve a greater risk of a wrong decision than if the proceedings had been commenced much earlier… [I]n my opinion the greater risk of a wrong decision in the circumstances of an application for extension of time does involve a degree of unfairness to prospective defendants."
These evidentiary difficulties could have been mitigated had the proceedings been commenced some time ago, including prior to the death of Captain Stevenson in 2019. Similar difficulties may also attend the ability to obtain expert evidence, in 2021, concerning the standard of conduct that could reasonably have been expected of naval personnel at the time of the collision, including by reference to the standard practice of the time.
The Commonwealth submitted that passage of time has also deprived it of the practical ability to refute many of the factual allegations advanced by Mr Winston. For example, it is now difficult for the Commonwealth to identify and call witnesses who might be able to refute Mr Winston's evidence that he began drinking heavily only after the collision. As the Court of Appeal observed in Shaw at [81], in which the Court refused an extension of time for the commencement of proceedings concerning the Voyager collision: "The Commonwealth should not be required to rely solely upon inherent weakness or inconsistencies in the applicant's case. If it had been denied the opportunity, due to the lapse of time, to make any reasonable inquiry as to the accuracy of the plaintiff's assertions, that is an element of actual prejudice."
The Commonwealth contended that Mr Winston has not produced any records to substantiate his claim that, following his discharge from the Royal Australian Navy in 1972, he was employed by five private employers. The Commonwealth has been unable to obtain records evidencing his employment, despite having issued subpoenas to employers and having undertaken various other searches. Similarly, Mr Winston has not yet provided any tax returns that evidence his employment. The Commonwealth submitted for those reasons that it is significantly prejudiced in its ability to refute the claim as to loss of earning capacity, which forms a substantial proportion of Mr Winston's damages claim.
The absence of a former naval serviceman's civilian employment records was in Commonwealth v Diston [2003] NSWCA 51, held to constitute actual prejudice such as to warrant a denial of an extension of time. Sheller JA stated that, absent such records, "the claimant had no way of challenging or verifying the opponent's evidence". A similar result was reached in Blyth v Commonwealth [2005] NSWSC 721 at [96]. Basten JA commented at [208] in Commonwealth v Smith that "years after the event, it is difficult to comprehend how any reasonable objective assessment can be made of the pre-collision character of the applicant and the effect of the collision upon him".
The Commonwealth submitted that it is not just and reasonable now to grant an extension when Mr Winston could have commenced proceedings against the Commonwealth many years ago. Even where an applicant was unaware of one or more of the matters in s 60I(1)(a), he or she may have had such other awareness that it would not be just and reasonable to grant an extension of time: McLean v Sydney Water Corporation [2001] NSWCA 122 at [24].
Mr Winston accepted that his application should only be refused if there is a likelihood of significant prejudice to the Commonwealth so that the chance of a fair trial is unlikely: Smith at [127]-[128]. That does not mean that the trial must be perfect or ideal. Santow JA referred to the relevant onus at [131] in these terms: "[131] The primary judge dealt with the five categories of evidence which the Commonwealth argued showed it would suffer significant prejudice. In relation to the first category, evidence of events that occurred before Mr Smith joined the Navy, the Commonwealth submitted that the primary judge's finding that it had lost nothing by the absence of records from this period… indicated that he had erroneously reversed the onus. The primary judge correctly stated that Mr Smith bore the ultimate onus of satisfying the court that it was just and reasonable to extend the limitation period. However, although the primary judge did not expressly state this, the Commonwealth was subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend…"
One of the matters raised by the Commonwealth in this context is the alleged paucity of information concerning Mr Winston's employment history. However, Mr Winston gave evidence about that as follows: "34. My civilian employment history is known to the defendant and is as follows: (a) 23/11/1972 at Harvey Norman Wollongong as a salesman for about 6 months and about 10 months as a storeman. (b) At Magna Park Car Sales as a car salesman about 23/8/73 to 22/2/74 at Wollongong. (c) 23/2/1974 to 15/5/1974 at Dyer Caravans Wollongong as counter shop assistant selling caravan accessories. (d) 16/5/1974 to 22/11/1976 at Kmart as a shop assistant. (e) 23/11/1976 to 30/5/1997 at BHP as a collier (labourer) and strip grinder. 35. The defendant has been supplied with my civilian pay estimates from 23/11/1972 to 30/5/1997. 36. I have tax returns back to 2002. I have requested from ATO my tax returns from 2002 to at least back as far as they exist. I am informed by ATO and verily believe that my tax documents exist pre-2002 in ATO Archives."
In addition, Mr Winston annexed his Salary Service Record showing his postings and his discharge and his employment in those postings. Moreover, Mr Winston deposed to the following matters at paragraph 26 of his affidavit: "26. The following further RAN documents are available: (a) RAN Certificate of Service. This contains all trade test documents, conduct comments, efficiency comments etc (b) RAN Pay History Card. (c) RAN full medical file. (d) RAN psychiatric file. (e) RAN June 1969 log of HMAS Melbourne. (f) RAN Statement of Service (g) The Report of the Combined USN and RAN Board of Investigation into the collision between HMAS Melbourne and the USS Frank E Evans. This concluded in part that the HMAS Melbourne was at fault in that the Captain of the HMAS Melbourne 'failed to exercise due care.'"
The Commonwealth produced four volumes of material dealing with, among other things, the transcript of evidence and findings related to the Board of Investigation and the court martial of Captain Stevenson. Mr Winston submitted that this material was in significant degrees both likely to be admissible at the hearing and that it reliably informed the Commonwealth what his case was about. In particular, the Board of Inquiry material directly supported the allegations of negligence in the statement of claim, in particular those numbered 6(f), 6(j), 6(k), 6(l), 6(m), 6(o) and 6(p). Mr Winston emphasised that the evidence at the Board of Inquiry specifically supported at least a prima facie contention that the Melbourne's engines should have been backed at the time the commanding officer put his rudder over and that he failed to exercise due care in that he did not positively direct the movements of the Evans at all relevant times. Furthermore, Captain Stevenson's exoneration was irrelevant as the standard of proof was to the criminal standard.
It is inevitable that the delay in commencing these proceedings is likely to result in the Commonwealth experiencing some disadvantage in responding to them. The Commonwealth will to that extent be prejudiced. However, the test is not whether Mr Winston can demonstrate that the Commonwealth will suffer no more than presumptive prejudice but whether extending the limitation period to permit a less than perfect trial to proceed is just and reasonable. So far as the Commonwealth's liability is concerned, I fail to see how the delay in commencing these proceedings can have caused real or actual prejudice at all. The issue of who or what caused the collision was examined in minute detail in two different forums in which the Commonwealth was either an active participant or a close and interested observer. The fact that several significant witnesses who gave evidence about these matters are dead fails in my view to acknowledge the likely truths, that a full transcript of what they said is still available and that nothing they would now say would be any different to the extensive testimony that they previously gave. The suggestion that their unavailability in these circumstances creates significant prejudice is to my mind a serious overstatement. Concerns about the dimming of memories through the passage of years since 1969 are in the particular circumstances of this case more apparent than real.
In addition, Mr Winston's medical records are available from the time he commenced his service with the navy: Exhibit 2. I have no reason to doubt that his medical records since then will also be available, and no contrary submission was made. Indeed, the Commonwealth was intimately involved with Mr Winston's medical problems in the course of assessing and favourably responding to his claim to be suffering from PTSD caused by his experiences from the collision. The suggested problems for the Commonwealth created by difficulties associated with accurately or reliably tracing Mr Winston's employment history would also appear to me to be more apparent than real: the evidence in this application supports the contention that Mr Winston became unfit for employment. Indeed, in those circumstances, the extent to which Mr Winston managed to secure any gainful employment would operate to reduce the size of his claim for economic loss rather than the reverse. His income tax returns in any event are or will be available to clarify his employment history.
Assessment of what is just and reasonable requires consideration of the interests of both parties to the litigation. Mr Winston is not entitled in this exercise to be treated more favourably because he is an individual with a serious medical condition caused by his naval service with the Commonwealth, nor is the Commonwealth to be treated less favourably because it is a powerful entity with relevantly unlimited resources to respond to his claim. What is just and reasonable is something that has to be considered having regard to all of the circumstances dispassionately and objectively. It is a matter about which minds may differ.
Taking as practical and as realistic an approach as I can, I anticipate that this litigation will principally involve an assessment of the legal liability of the Commonwealth by reference to the extensive, not to say exhaustive, accounts of what occurred on 3 June 1969 and what should have been done to avoid the collision. My expectation is that experts for both sides will be able without too much difficulty to consider this material and express opinions, to the extent that it is legitimate for them to do so, about Mr Winston's allegations of negligence by the Commonwealth. The Commonwealth's avowed concern that Mr Winston has failed to identify the particular individuals who might have been involved in these alleged errors on the night itself fails properly to take account of the responsibility that the Commonwealth undoubtedly bears for the acts or omissions of these men and women. They will have already taken part in the earlier investigations and recorded proceedings to which I have referred. The Commonwealth's protestations of significant prejudice, as distinct from senior counsel's helpful submissions on the Commonwealth's behalf, could on one view be considered to be a touch disingenuous. I consider that the Commonwealth will be able to receive a fair trial, even if not necessarily a perfect one.

Conclusion and orders

In my opinion, it is both just and reasonable to order that the limitation period for the cause of action upon which Mr Winston sues be extended up to and including 29 October 2019. I consider that the Commonwealth should pay Mr Winston's costs of the application.

Postscript

After I had reserved my decision on 2 February 2021, James Taylor, the solicitor for Mr Winston, contacted my Associate with a request to re-list the proceedings in order that certain further matters that had not been referred to in the course of the hearing might be dealt with. Mr Taylor was concerned to meet the submission made by senior counsel for the Commonwealth that it may be prejudiced by reason of a lack of evidence of Mr Winston's actual and potential earnings since the collision and that an assessment of that prejudice should, in combination with other factors, lead me to dismiss the current application. In the events that occurred, Mr Taylor filed a notice of motion seeking an order that this occur. In particular, Mr Taylor wished to tender an actuarial report dated 15 July 2020 prepared by Mr Plover of Cumpston Sarjeant, consulting actuaries, in support of Mr Winston's claim for past economic loss and in order for present purposes to meet the Commonwealth's submission that its prejudice was made the greater by reason of limited economic information to support that claim.
The Commonwealth initially opposed the application for an extension of the limitation period being relisted. However, after correspondence between the parties, that issue was resolved upon the basis of the following consent orders dated 12 February 2021: "In these Short Minutes of Order: A reference to 'the Report' is a reference to the Actuarial Report prepared by Cumpston Sarjeant, dated 15 July 2020, a copy of which is attached to these Short Minutes of Order, including the briefing material provided to Cumpston Sarjeant referred to in Section 6 of the Report. A reference to 'the Letters' is a reference to the letter dated 9 February 2021 to the Associate to his Honour Justice Harrison under the hand of Mark Kelly, solicitor, and to the letter dated 11 February 2021 to his Honour Justice Harrison under the hand of James Taylor, solicitor, copies of both of which are attached to these Short Minutes of Order. A reference to 'the proceedings' is a reference to the plaintiff's notice of motion for an extension of time filed 17 July 2020. BY CONSENT: 1. The plaintiff's Notice of Motion dated 9 February 2021 be dismissed. 2. The plaintiff have leave to apply to tender the Report in the proceedings. 3. The plaintiff and the defendant submit to any order of the court in relation to the application to tender the Report, and rely upon the content of the letters as their respective submissions in relation to such application. 4. No order as to costs."
The original point of difference between the parties concerning the report was whether it was an hypothetical analysis of Mr Winston's claimed economic loss, based on unproven assumptions with no documentary support or whether it was based on documents that had in fact been supplied to the Commonwealth. Mr Taylor deposed to this issue in his affidavit sworn on 9 February 2021 in support of the motion in the following terms: "2. Annexed hereto and marked with the letter 'F' is an actuarial report prepared by Mr Cory Plover, Actuary of Cumpston Sarjeant dated 15th July 2020. That report was prepared for the plaintiff on instructions and documents I provided to Mr Plover. I served that report on the Defendant on 27th July 2020. Annexed hereto and marked with the letter 'G' is my letter of service. On the afternoon of the 5th of February 2021, I received a request from Mr Mark Kelly of the Australia General Solicitor to be provided with all documents provided to Mr Plover upon which the report was based. I had not received any previous request for those documents. I supplied those documents on Monday the 8th February 2021. The bulk of those documents were provided to the Defendant I believe between June 2020 and September 2020. They included all DVA files in my possession. Those files included a Workers Compensation Court of N.S.W. settlement order relating to a motor vehicle accident in 1993 in which the Plaintiff was injured journeying to work. Annexed hereto is a document marked 'H' which is a copy of the Workers Compensation Court of N.S.W. orders dated 29 April 1996. In matter No 9280 of 1905 [sic] relating to Mr Winston. Also provided to the Defendant's Solicitor about September 2020 were my client's taxation files 2002-2016, correspondence from BHP, and a 1997 group certificate from BHP."
The Commonwealth's position is summarised in the letter from Mr Mark Kelly at the Australian Government Solicitor dated 9 February 2021 addressed to my Associate "to be treated as submissions on the application to reopen". Part of that letter is as follows: "The Actuarial Report The defendant's evidence at paragraphs 56 and 57 of the Affidavit of Mark Kelly affirmed 27 November 2020, [Exhibit 1] is that the plaintiff has not produced, and the defendant has not, by subpoena, been able to obtain, any contemporaneous employment records from November 1972 onwards to support, or contradict, the plaintiff's own account of his employment history [see transcript references page 55 lines 1-15, page 59 lines 1-50 and page 60 lines 1-40]. The existence of the actuarial report does not change that position. Section 2.2 of that report sets out information as to the Plaintiff's earnings, but only by way of an assumption. Under the heading 'Assumptions concerning actual earnings', the report summarises 'the information you have provided regarding Mr Winston's actual salary' (p.3 of the Report). On 5 February 2021 the defendant asked the plaintiff for copies of the briefing material provided to the actuaries and this material was provided at 4:20pm on 8 February 2021. The material does not include any contemporaneous employment records. As such, the report itself takes the position no further than that which was brought to the Court's attention at the hearing - namely, that although the plaintiff has given an account of his earnings, that account is not capable of being tested on the evidence presently available. If the purpose of the application to relist is to tender the actuarial report, the defendant objects to the tender on the basis that, being a report based upon assumptions, it cannot be probative of the plaintiff's employment history. At the same time however, the defendant has no objection to his Honour being provided with a copy of the actuarial report so as to better inform his Honour of the issue in dispute. Also, if there is a late application to tender the report, the defendant is content for his Honour to decide the matter on the basis of the above which could be treated as submissions opposing any such tender application. This would avoid the need for a further appearance(s) in the current circumstances (and noting that the plaintiff's representatives and the defendant's solicitors are not based in Sydney)."
It seems to me that it is important to have recorded the issue concerning the actuarial report and the parties' respective views about its utility for the purposes of Mr Winston's application to extend time. However, having regard to the view I have formed about the Commonwealth's prospects of being able adequately to respond at a final hearing to Mr Winston's claim for loss of earnings or earning capacity, it is unnecessary to deal with these matters further.

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. Decision last updated: 17 February 2021

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