Andrew v Commonwealth

[2001] NSWSC 733

CITATION:	Andrew v Commonwealth of Australia [2001] NSWSC 733
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 21251/95
HEARING DATE(S):	20 August 2001
JUDGMENT DATE:	30 August 2001
PARTIES :	Plaintiff - Barry John Andrew Defendant - Commonwealth of Australia
JUDGMENT OF:	Master Harrison

COUNSEL :	Plaintiff - M Joseph SC; W Walsh Defendant - R McIlwaine SC; A Coleman
SOLICITORS:	Plaintiff - James Taylor & Co. Defendant - Australian Government Solicitor
CATCHWORDS:	Extension of time to commence proceedings - ss 60G and 60I Limitation Act - Voyager/Melbourne Collision
LEGISLATION CITED:	Limitation Act 1969 (NSW) Limitation Act (Qld)
CASES CITED:	Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 BHP Steel (AIS) Pty Limited v Guidice (NSWCA unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 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 (NSWSC, 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
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 6 December 1995; (2) Costs are reserved.

20

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

30 AUGUST 2001

21251/95 - BARRY JOHN ANDREW 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 6 December 1995 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 affidavits sworn 3 June 2000, 14 February 2001 and 2 March 2001. The defendant relied on affidavit of Con Ktenas affirmed 22 November 2000.

2   I observed the plaintiff carefully when he gave evidence and during cross-examination. Despite the defendant’s counsel’s submission that the plaintiff was not giving truthful evidence, I did not find this to be the case. The plaintiff when giving evidence became visibly upset at times.

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 November 1946 and is 54 years of age. He presently resides in Deception Bay, Queensland.

(2) The plaintiff enlisted with the Royal Australian Navy on 8 January 1963 at the age of 16 years. At the time of enlistment, he was in good health, both physically and psychologically, and he passed all medial and psychological tests conducted. It was the plaintiff’s intention to serve as long as he could in the Navy, expecting to serve in excess of 30 years, and he had chosen the Navy as his career. It was the plaintiff’s ambition to work hard to obtain a Commission.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of Ordinary Seaman and was a Shipwright Yeoman. It was part of his duties to shore up damaged bulkheads and patch up the holes in the HMAS Melbourne.

(4) On 10 February 1964 the Voyager was sunk when she collided with the HMAS Melbourne on high seas for 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 in the cafeteria watching a movie. The projector suddenly moved. There was a jolt and he was knocked to the floor hitting his head. The lights went off. There was a pipe “hands to collision stations” and the plaintiff was fearful as he knew this meant that they had been involved in a collision. The lights came on again quickly. The first thing the plaintiff remembers clearly is seeking a stoker standing covered in oil and he thought a pipe may have been broken. There was another jolt and the lights went on and off and the plaintiff rushed up to his emergency stations. At first the plaintiff did not realise the HMAS Voyager was going down. He could see the lights and see shadows. When he realised the Voyager was going down, he could hear sounds like screaming as he watched it sink. Later the plaintiff was told that this sound was water going through the vents of the Voyager, however, he claims that it sounded like human voices and he still remembers the sound.

(6) The plaintiff’s emergency station was next to the sick bay. He could see injured survivors coming on board and to the sick bay. The plaintiff was required to help with rope and a block and tackle to lift some of the survivors back on board. He felt that everything seemed to be happening in slow motion and that a lot more could have been done more quickly but that a lot of people seemed not to know what to do. The plaintiff saw one survivor coming on board who was bleeding. He was split across the front. He heard someone say “if you don’t hold a hand over he will lose his guts”. Other men were being sick and he recalls that they were told to vomit as much as they could as they were covered in oil and had obviously swallowed a lot of oil. The plaintiff watched the aft section of the Voyager go down and he felt disorientated and numb.

(7) After all the survivors had been got on board, the plaintiff helped repair the damaged that had been done to HMAS Melbourne and helped shore up the bulkhead and effectively repair the front of the Ship so it wouldn’t sink. The part of the ship where they were working was crushed in.

(8) When the Melbourne returned to Sydney there was a lot of press at the dock. The plaintiff couldn’t face going in amongst the people on the dockside and hid. He stayed with his parents for a little while but was required to go back on board the Ship as he lived on board. The Ship then returned to the Cockatoo Dockyard. The plaintiff felt numb and couldn’t talk about what had happened. He started to drink heavily. He was having problems sleeping and was having nightmares. He didn’t want to be on board the Melbourne but had to do his duty. He was anxious, tense and irritable. He didn’t want to talk to anybody about the accident and wanted to be by himself.

(9) After the Melbourne had been repaired, it sailed up the strategic reserve in Borneo Malaysia. The plaintiff still felt numb but he was trying to cope and had switched off. He found it difficult to be in confined spaces and he felt anxious and stressed. He was still having problems with sleeping, nightmares and drinking. He was on board the HMAS Melbourne on the evening it collided with the USS Frank E Evans and the memories of the collision with the Voyager flooded back into his mind.

(10) When the collision occurred, the plaintiff was half asleep and heard the pipe “hand to collision stations”. As he woke, he hit his head on something. The next thing he recalled was being on the ground with people running over the top of him. When he got to the escape hatch, he found that everyone was gone and the hatch was locked. He was afraid that he could not get out and felt shut in. He banged and banged on the hatch to get out. The plaintiff then went down to the starboard passage as the Frank E Evans went alongside and he could hear the sound of screams coming in. He felt as if he was back on the HMAS Melbourne when it collided with the Voyager. When the plaintiff got to his emergency station, he sat in the corner and cried his eyes out. The rescue operation was a lot smoother than for the Voyager collision and all the survivors were picked up in about the first 20 minutes.

(11) After the Voyager collision, the plaintiff felt negative towards his superiors whereas previously, he had felt proud and that he could trust his superiors. He no longer wanted to accept any more responsibilities and he didn’t want to do some of his duties. He reached the stage where he wanted to leave the Navy and he couldn’t live with the memories. He was discharged on 4 January 1976.

(12) Upon discharge the plaintiff bought a newsagency. He continued to have difficulty sleeping and continued to have memories and terrible thoughts. He was stressed and felt tired and exhausted. He found himself exploding easily and was drinking six stubbies a night. He was receiving customer complaints at work.

(13) Between 1988 and 1989, the plaintiff went to see Dr David Jenkins for stress management. The plaintiff relayed the editorialised version of events of the collision to Dr Jenkins. The doctor gave him some medication. The plaintiff was informed by Dr Jenkins and understood that he was suffering from an anxiety state caused by either the HMAS Melbourne collision with the Voyager or with the USS Frank E Evans. Dr Jenkins did not explain to the plaintiff whether the anxiety state was a specific psychiatric disease.

(14) On 1 September 1988, the plaintiff made a claim for a pension from the Department of Veterans’ Affairs. The claim related to a chronic anxiety state with agoraphobia. He stated that when in air conditioned and enclosed spaces with little or no orientation he experienced extreme stress which could lead to headache, pain, vomiting, diarrhoea and a history of bronchial symptoms. A copy of a report from Dr Jenkins dated 22 November 1988 was sent to the Department of Veterans’ Affairs. (Ex S to the Affidavit of Mr Ktenas). As a result of the application the plaintiff was granted pension benefits. This report of Dr Jenkins is available but his records have been destroyed and the doctor may not be mentally able to give evidence as he has had a stroke.

(15) In his affidavit, the plaintiff deposed that Dr Jenkins did not tell him which collision had caused his anxiety and the plaintiff did not think that anxiety was a psychiatric injury as such. In cross examination the plaintiff admitted that he was aware that the voyager collision caused his anxiety and agoraphobia and claustrophobia. I accept that the evidence the plaintiff gave during cross examination was correct. The plaintiff also gave evidence that he considered he was treated for acute anxiety and stress and prescribed medication. He gave evidence that Dr Jenkins suggested that he read a text book on stress management and should only return for a consultation if he needed to, whereas Dr Jenkins report stated that the plaintiff was to have further treatment otherwise his condition would deteriorate.

(16) Around August 1994, the plaintiff spoke with the Defence Forces Welfare Association Officer and discussed some of the problems he had been experiencing, including the forced sale of his business and change of lifestyle. The officer recommended that the plaintiff contact a legal person.

(17) In 1995 the plaintiff had a major mental breakdown. He found himself crying uncontrollably. According to Professor Raphael this was a culmination of the profound effects the collision had upon his life. Since 1995, the plaintiff has undergone regular counselling.

(18) On 17 May 1995, when the plaintiff consulted with a psychiatrist, Professor Raphael. She informed him that he was suffering from Post Traumatic Stress Disorder (PTSD) and that this was as a direct consequence of the HMAS Melbourne/Voyager collision. She also informed him that the later collision with the USS Frank E Evans had acted as a triggering factor, causing his symptoms to worsen. The plaintiff gave Professor Raphael an account of the emotions he felt when and after the collision occurred. Since the collision the plaintiff had blocked out his emotions. The significance of this diagnosis to the plaintiff was that he was not regarded as a malingerer and he had a recognised illness. Prior to being diagnosed with PTSD, he thought that to acknowledge that something was wrong was a weakness and this was not acceptable for anyone who has been in the military service.

(19) On 29 November 1995 the plaintiff filed a statement of claim and on 6 December 1995 he filed a notice of motion seeking to extend the limitation period.

(20) In 1998 the plaintiff was having problems with his breathing and with chest pains. He consulted a physician, Dr Roger Allen. Dr Allen informed the plaintiff that he was suffering from an asbestos plural disease and that he had Asbestos Plural Plaque and that this was caused by his exposure to asbestos during the collision. The plaintiff does not rely upon this diagnosis in this court.

(21) On 23 May 2000, the plaintiff consulted Dr Don Todman, a neurologist. Dr Todman stated that the plaintiff suffers from the primary disorder of PTSD and that the main event precipitating this disorder is the collision. According to Dr Todman, as a consequence of PTSD, the plaintiff became a binge alcohol drinker and the effects of the alcohol consumption have been impairment in cognitive function and impairment in the short term memory and that there is evidence of gait ataxia and nystagmus.

(22) On 10 June 2000, Lynda Troy, a clinical neuropsychologist, reported that the plaintiff showed mild to moderate neuropsychological impairment consistent with chronic alcohol abuse, exacerbated by the presence of severe anxious psychopathology. Her prognosis, even if the plaintiff was to abstain from alcohol, is that he is unlikely to have a complete resolution of his neuropsychological impairment. His progress, neuropsychologically, is poor.

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 29 November 1992.

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 29 November 1992); 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 did not know that he had suffered brain damage until he read the report of Dr Don Todman on 23 May 2000 and that he did not know the nature or extent of his injury until 1995, when his symptoms became more severe. 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 filed in 1995.

(i) Whether the plaintiff has proved that “he did not know that a personal injury had been suffered ”

9   Prior to the accident the plaintiff knew he was in good health both physically and psychologically. After the accident and prior to the expiration of the limitation period, the plaintiff knew he felt numb and couldn’t talk about what had happened. He started to drink heavily and was having problems sleeping and nightmares. The plaintiff knew he was anxious, tense and irritable but he thought this was a just a normal reaction. In 1988, the plaintiff knew that he suffered from chronic anxiety, sleep disturbance, he had always abused alcohol, claustrophobia and was socially withdrawn. The plaintiff’s counsel conceded that when the plaintiff consulted Dr Jenkins, the plaintiff knew that he had the symptoms that constituted a diagnosis of PTSD. On 23 May 2000, when the plaintiff consulted Dr Todman he became aware that he suffered from the primary disorder of PTSD and that the main event precipitating this disorder is the collision. According to Dr Todman, as a consequence of PTSD, the plaintiff became a binge alcohol drinker and as a result of the alcohol consumption he has impairment in cognitive function and impairment in the short term memory and that there is evidence of gait ataxia and nystagmus.

10 I accept that although the plaintiff knew that since the collision he had abused alcohol, it was not until 23 May 2000 that he became aware that it had caused impairment to his cognitive function and impairment to his short term memory. He did not know that he had a personal injury that caused impairment to the functioning of his brain. This knowledge was acquired within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was “unaware of the nature or extent of the personal injury suffered ”

11 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.

12 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 conceded that he had much the same symptoms prior to 1988 as he had after that date. However, he stated that there was a difference in the severity of these symptoms. The plaintiff gave evidence that, in 1988, even with the symptoms described earlier, he was unaware that he had a diagnosable psychiatric illness. He did not become aware of this fact until 1995 at the earliest. In 1988, he was still able to function and work. The symptoms became so sever in 1995 that he suffered a mental breakdown. Since then the plaintiff has received regular medication and counselling.

13 It is my view that the plaintiff did not know the nature or extent of his personal injury until 1995 when his symptoms became escalated so that he could no longer function properly nor could he work. This falls within the period stipulated by s 60I(1)(b). Accordingly, 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 ”

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

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

16   In 1995, the plaintiff’s solicitor filed a statement of claim in the High Court between these parties in relation to the Melbourne/Voyager collision (Ex 1). The plaintiff had never seen this document until he was shown it when being cross examined. The plaintiff was vague about when he first saw the statement of claim in these proceedings but he thought that it was in 1995. However the plaintiff instructed his solicitor in 1994. It was when he instructed his solicitor, at the earliest, that the plaintiff became aware of the particulars of negligence in the statement of claim.

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 continually denied that he thought about who was at fault after the accident occurred. This seemed odd but the plaintiff explained that he was only 17 years old, he was told by his superiors not to talk about it and his personal opinion did not matter. He was traumatised, had blocked the collision out of his mind and was too busy running from himself. The medical evidence supports this view. He was asked whether he followed the events of the Royal Commission. He said that before it finished he was sent to Malaya. Only two years ago the plaintiff’s son in law’s brother, who is in the Navy gave him a copy of the Commission report. I accept that the plaintiff knew that some of his psychological and psychiatric injuries were connected to the collision by 1998. However, even if he knew of the connection between the collision and the injuries this 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 1994 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, memory and cognitive impairment. 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 on application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 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 actually and significantly prejudiced because of lack of medical and employment records including those of the defendant. The plaintiff left the Navy in 1980. He has produced copies of his tax returns from 1982 to 1995, which gave details of his earnings and his employers. 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 large bundle of Navy records relating to the plaintiff and there are detailed records of his medical condition from entry into the Navy to 1973 (Ex B and C). Dr Jenkins 1988 report is available. As previously stated, Dr Jenkins’ clinical notes have been destroyed and he may not be competent to give evidence. Dr Jenkins told the plaintiff that he would require ongoing psychiatric treatment to ensure that he comes to terms with his chronic tension and claustrophobia which otherwise would be highly likely to deteriorate. The plaintiff has denied being told this. The defendant submitted that it is prejudiced because the issue of further treatment can no longer be tested. However it is common ground between the plaintiff and Dr Jenkins’ report that the plaintiff was able to continue with his employment. It is my view, that having regard to the other overall facts and circumstances, this issue is not a significant one.

30   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.

31   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 6 December 1995.

(2) Costs are reserved.

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Last Modified: 09/03/2001