Ackland v The Commonwealth

[2001] NSWSC 991

Reported Decision: [2001] NSWSC 991
[2001] ACL Rep 225 NSW 48

New South Wales

Supreme Court

CITATION:	Ackland v The Commonwealth [2001] NSWSC 991
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20078/99
HEARING DATE(S):	2 November 2001
JUDGMENT DATE:	9 November 2001
PARTIES :	Michael Kenneth Ackland (Plaintiff) Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M Joseph SC with Mr W Walsh (Plaintiff) Mr R McIlwaine SC (Defendant)
SOLICITORS:	James Taylor & Co Myrtleford, Victoria (Plaintiff) Australia Government Solicitor (Defendant)
CATCHWORDS:	Extension of time to commence proceedings - Sections 60G and 60I Limitation Act - Voyager/Melbourne collision
LEGISLATION CITED:	Limitation Act 1969 (NSW)
CASES CITED:	Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Szerdahely v Bailey; 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 McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001
DECISION:	(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 25 February 1999; (2) Costs are reserved.

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 9 NOVEMBER 2001

20078/99 - MICHAEL KENNETH ACKLAND v
COMMONWEALTH OF AUSTRALIA
Judgment (Extension of time to commence proceedings,
Ss 60G and 60I Limitation Act -
Voyager/Melbourne collision )

1 MASTER: By notice of motion filed 25 February 1999 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 23 November 2000. The defendant relied on the affidavit of Con Ktenas affirmed 6 June 2001. The plaintiff was present at court however he was not cross examined.

2 On the day of the hearing a short adjournment was given to allow the defendant to file a defence. I allowed the defence to be filed except I reserved whether paragraph 7 should be permitted so far as it related to the ACT Limitation Act for further argument. This issue was stood over for argument with a number of other “Voyager” matters to 14 December 2001.

3 For the purposes of this application I have taken the plaintiff’s case at its highest and I find the following facts.

(1) The plaintiff was born on 22 December 1945 and is presently 55 years of age. The plaintiff resides in Victoria.

(2) On 7 January 1962 the plaintiff became a member of the Royal Australian Navy. At the time he entered the Navy he was 18 years of age and he was in good health both physically and psychologically. At the time of entering the Navy the plaintiff intended to make it his life career. The collision occurred during the plaintiff’s first sea voyage.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne as a Navy Aircraft Handler (NA AH2) which was involved in joint exercises with the escort destroyer HMAS Voyager.

(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 on watch on the flight deck preparing for aircraft landings. He was in fire sponson just below the flight deck level close by where the first hose was stored. His specific duty involved fire control. The plaintiff was with another Naval Airman in the sponson. The sponson was located on the starboard side of the Melbourne. The plaintiff had been on duty since about 8.00 pm. Suddenly he heard what sounded like a muffled explosion and felt a violet thump. There was an orange glow and a very strong smell of sulphur. The plaintiff’s initial reaction was that an aircraft had crashed on the deck. He was frightened and shocked. The plaintiff next recalled hearing an order over the ship’s loud speaker system to assume NBCD (which is an abbreviation for Nuclear Biological and Chemical Defence) state, one condition /Zulu. All the watertight hatches had to be closed as the ship was in danger of sinking and he feared for his life. All flight deck crew including the plaintiff were ordered to fall in at the front of the Island for a roll call.

(6) At the Island the plaintiff’s Petty Officer of the watch told them that they had collided with the Voyager and were launching sea boats for survivors. The plaintiff’s job was to assist survivors from the boat into the hangar where a temporary first aid centre had been arranged. The survivors from the Voyager were struggling up the rope from the water line to 3 deck (which is the hangar deck). The survivors were either naked or semi naked and covered in furnace fuel oil. Some were crying, some were screaming, some were comatose and did not know where they were, some were vomiting and some were in pain from their injuries. As the plaintiff was helping the survivors to come aboard he could see from the Melbourne’s lights and the lights of the helicopters men in the water swimming for their lives. He was fearful for the lives of the men in the water and for those still on board the Voyager. He was frantically searching for the faces of his friend. There were people aboard the Voyager that the plaintiff had been through junior recruit training with, three of those were killed.

(7) The Melbourne slowly made its way back to Sydney. They arrived back in Sydney they were told not to discuss the accident with anyone. They were given leave in Sydney and when ashore found that they were ostracised. The plaintiff felt guilty. The plaintiff got extremely drunk. He continued on leave for about two weeks and then went home by train. When the plaintiff arrived home he hardly left the house and just could not go outside.

(8) Morale was very low. The plaintiff stayed on board the Melbourne until she sailed in about May 1964. He was terrified of going back to sea again. He was having trouble in confined spaces. Was having trouble sleeping and was on edge and anxious. He was scared and knew then that he would have serious problems about his capacity to handle being back at sea. The plaintiff began drinking to help ease his anxiety and to blot out the terrible memories. He began eating to excess. Prior to the collision he had drunk alcohol once or twice on occasions such as his 18th birthday and New Year. Prior to the collision he was underweight. His drinking gradually became worse as he tried to cope with his feelings. He was however, always able to do his job. His drinking helped him cope with being at sea and he began to put on weight as he was nervously eating more than the usual ration. Since the collision the plaintiff also began to smoke very heavily. Since the collision the plaintiff has had a constant feeling of impending disaster.

(9) The plaintiff thought the symptoms he was experiencing were a normal consequence of the collision and that they would gradually go away. He did courses to help gain promotion and to some extent this settled his symptoms as he became engrossed in the work required in doing those courses. He gained promotion to Leading Seaman. .

(10) From April 1971 until November 1971 the plaintiff served on board the HMAS Sydney and did seven uneventful trips to Vietnam. In October 1972 he was promoted to Petty Officer. During this time he was still experiencing the same symptoms as he has been experiencing on the Melbourne. He felt he was getting nowhere in the Navy and was disheartened and felt there was nothing for him in the future. His weight rose dramatically to about 16½ stone and he was drinking heavily. He still feared being in confined spaces and below the water line. He had difficulties sleeping. The plaintiff took his discharge when his period of 12 years engagement had expired. He had decided that he could not cope with continuing on in the Navy.

(11) After his discharge in 1974 the plaintiff took a factory job at GMH in Adelaide as a general factory hand packing car components. He also drove a forklift. He held this job for 15 months but could not handle being confined in the factory in the one spot. In mid 1975 the plaintiff obtained employment as a truck driver for a bone and tallow merchant Mehrtens & Co, South Australia for about three years until mid 1979. He experienced anxiety attacks which could be triggered by simple things such as the telephone ringing. At this time his drinking increased.

(12) From 1979 until 1985 the plaintiff worked full time at the Downs Hotel Adelaide. During this time his weight increased to 134 kilograms and he was drinking heavily after work.

(13) From 1985 until 1997 the plaintiff worked in the Corrective services Department as a Prison Officer at Pentridge. He was able to cope with this employment but could not have done so without alcohol. In mid 1995 his anxiety attacks became more frequently and he started to panic when he was driving. He would wake up at night regularly three or four times per week. His heart would pound and he would be sweating profusely.

(14) In about May 1997 the plaintiff was having problems coping with his work and he took a redundancy package. From May to mid September 1997 the Justice department employed the plaintiff on a part time basis as a training consultant working at the Melbourne Assessment Prison in Spencer Street Melbourne.

(15) In mid 1997 the plaintiff was talking to a friend who had served with him on the Melbourne. The plaintiff told his friend about his anxiety and drinking problem and that he did not know what was causing his problem. His friend suggested that he go and see the welfare officer at the RSL, which he did. The welfare officer referred the plaintiff to Dr Dickman who in turn referred the plaintiff to Dr Brendan Holwill. The plaintiff saw Dr Holwill for the first time in about late 1998. Dr Holwill took a thorough history from the plaintiff and they had a long discussion about the collision. It was Dr Holwill who first informed the plaintiff that he was suffering from a Post Traumatic Stress Disorder (PTSD) as a consequence of the collision. It was not until the plaintiff consulted Dr Holwill that he learned he was suffering from a psychiatric disorder. Until then the plaintiff was not aware that he was suffering from a psychiatric illness caused by the collision nor was he aware of the nature and extent of that illness. At about this time the plaintiff contacted Mr James Taylor, solicitor.

(16) On 14 January 1998 Dr Holwill reported that the plaintiff suffered from a chronic moderately severe post traumatic stress disorder. This is associated with a chronic and steadily worsening moderately severe depressive illness, moderate to severe phobic anxiety state with panic disorder and chronic moderately severe alcohol abuse. It was Dr Holwill’s view that all of these conditions had arisen as a direct consequence of the plaintiff’s experiences in the Royal Australian Navy and that the plaintiff is now totally and permanently impaired for any form of employment due to the chronicity and severity of his psychiatric illnesses. However, Dr Holwill also opined that the plaintiff had some constitutional predisposition to alcohol abuse, with a positive family history of alcohol abuse. However, he was a non-drinker prior to joining the Navy, and began drinking increasing amounts following his distressing experiences on the Melbourne. This will no doubt be a matter in issue at the trial.

17) On 25 February 1999 the statement of claim and notice of motion were filed.

The Law

4 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.

5 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).”

6 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 25 February 1996.

7 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 25 February 1996); 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).

8 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until January 1998. 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 on 23 November 2000 when he swore his affidavit on 23 November 2000.

9 The defendant submitted that the plaintiff knew shortly after the collision that he suffered from the symptoms of PTSD and knew that they were connected to the collision. If he did not have such awareness then he “ought to have” had such awareness. The defendant submitted that the plaintiff knew or ought to have become aware that he suffered a personal injury.

(i) Whether the plaintiff has proved that “he did not know that a personal injury had been 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. However s 60I(1)(b) refers to the application being made three years after the plaintiff ought to have become aware of all three matters listed in para (a)(i) to (iii).

11 Prior to the expiration of the limitation period the plaintiff knew that after the collision he had become anxious and edgy. After the collision the plaintiff increased his eating and alcohol consumption. After the expiration period the plaintiff was aware that in 1971 his consumption of alcohol had increased. His weight ballooned. In 1995 his anxiety attacks increased dramatically such that he would wake up at night regularly three or four times per week. Up until 1997 the plaintiff had never consulted a psychologist or a psychiatrist in relation to these symptoms because he thought they were normal. Even though in mid 1997 the plaintiff knew he had an anxiety and drinking problem he did not know what was causing it. In 1997 he spoke to a friend about his problems and was advised to seek medical help. On 18 January 1998 Dr Holwill psychiatrist explained to the plaintiff that he suffered from PTSD.

12 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. I accept that it was not until January 1998 that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. In relation to s 60I(1)(b) an objective person with the background of the plaintiff ought not to have become aware that the plaintiff suffered from a PTSD earlier than 25 February 1996. 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 ”

13 I have referred to the state of the plaintiff’s knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. After the expiration period the plaintiff’s consumption of alcohol and his weight increased progressively. As previously stated, it was not until 1995 that the plaintiff suffered from very frequent anxiety attacks. It was not until 1997 that the plaintiff felt unable to hold down a job. He was unaware that he had a diagnosable psychiatric illness until 1998 at the earliest. The plaintiff became aware that he had a diagnosable psychiatric injury namely PTSD when he was first told of this by Dr Holwill in November 1998.

14 It is my view that the plaintiff did not know the nature or extent of his personal injury until November 1997 when he became aware that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was “unaware of the connection between personal injury and the defendant’s act or omission ”

15 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions.

16 The plaintiff submitted that it was not until he read the statement of claim in 2000, 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.

17 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).

18 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.

19 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.

20 The plaintiff told Dr Holwill that he and the other members of the Melbourne crew found it difficult to understand the treatment their captain, Captain Robertson, received following the collision, and were distressed by the Royal Commission proceedings and findings. The plaintiff was not cross examined about this knowledge. It is my view that knowledge does not equate to knowledge of the specific particulars of negligence as set out in paragraph 5 (a) to (p) of the statement of claim.

21 I accept that it was not until October 2000 at the earliest, when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant’s acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway.

22 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

23 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.

24 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).

25 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 and depression. There is medical evidence to support this claim.

26 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 an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001.

27 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 37 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice.

28 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean.

29 The defendant submitted that they are prejudiced. The defendant’s solicitor, Mr Ktenas, in his affidavit deposes that the plaintiff’s service records have been destroyed. They may have been destroyed but prior to their destruction the plaintiff obtained and produced to the court service records and a bundle of Navy records relating to the plaintiff and there are detailed records of his medical condition from entry into the Navy to 1974. The defendant retained some service documents relating to the plaintiff (Ex A). The plaintiff has produced group certificates and notices of assessment from 1972 to 2000 (Ex B).

30 Records have been produced by Dr Meehan, Dr Peter Graf, Dr Dickman, Department of Corrective Services and the Department of Psychiatry, Austin hospital. At this stage Dr Holwill has not produced his notes but there is no reason to believe these will be unavailable. Drs Fairweather and Dietman have not produced documents, nor has Peter McCullum hospital. It is not clear what is the relevance of those records. They may relate to a hernia operation. In any event they have little significance.

31 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. Costs are reserved.

32 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 25 February 1999.

(2) Costs are reserved.
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Last Modified: 11/09/2001