Ayliffe v Commonwealth of Australia

[2001] NSWSC 24

CITATION:	Ayliffe v Commonwealth of Australia [2001] NSWSC 24
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20278/96
HEARING DATE(S):	13 December 2000
JUDGMENT DATE:	2 February 2001
PARTIES :	Rodney Anthony Burt Ayliffe (Plaintiff) Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M Joseph SC with Mr I Butcher (Plaintiff) Mr P Jones (Defendant)
SOLICITORS:	James Taylor & Co Myrtleford Vic (Plaintiff) Mr C Ktenas Australian Government Solicitor (Defendant)
CATCHWORDS:	Extension of time to commence proceedings - ss 60G and 60I Limitation Act - Voyager/Melbourne collision
LEGISLATION CITED:	Limitation Act 1969 (NSW)
CASES CITED:	Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Szerdahelyi 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
DECISION:	(1) The plaintiff's notice of motion filed 20 March 1996 is dismissed; (2) The plaintiff is to pay the defendant's costs.

17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 2 FEBRUARY 2001

20278/96 - RODNEY ANTHONY BURT AYLIFFE v
COMMONWEALTH OF AUSTRALIA

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

1 MASTER: The plaintiff by notice of motion filed 20 March 1996 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 23 June 2000. The defendant relied on the affidavit of its solicitor Con Ktenas affirmed on 22 November 2000. The defendant opposes the orders sought.

2   I observed the plaintiff carefully when he gave evidence and during cross-examination. He was belligerent. He was an unreliable historian. For example, the plaintiff denied being involved in alcohol related fights prior to the collision and then admitted in cross examination that was the case (t 20A). Later he then denied it (t 32). There were other examples of inconsistent evidence. I have serious reservations with his evidence.

3   For the purposes of this application, I find the following facts.

(1) The plaintiff was born on 3 June 1943 and is 57 years of age.

(2) On 25 September 1961 the plaintiff at the age of 18 years enlisted as a recruit in the Royal Australian Navy. He was in good health both physically and psychologically. There are records available in relation to his medical history prior to being enlisted. The plaintiff enlisted for an initial period of nine years, but he looked forward to making the Navy his career with the view to serving until he was aged 55 years. Prior to entering the Navy the plaintiff was a porter with the South Australian Railways.

(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 mechanical engineer.

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

(5) At the time of the collision the plaintiff was on duty in the engine room, which is about five decks below the flight deck. He was on watch attending to the turbo generators in the for’ard engine room. His task was to watch the steam situation and control the steam. The plaintiff felt a sudden lurch and immediately realised that they had hit something. He heard the order for full astern which is only used in extreme circumstances. He heard someone say that they had hit the Voyager. He was shocked.

The plaintiff immediately made his way to the escape hatch. He was terrified that the hatches would be locked down and he would be locked in the boiler room. The plaintiff managed to get out before the lock-down in the boiler room and went to three deck. He looked on in horror as he saw people diving off the outer section of the Voyager which was about three hundred yards away. He was confused as he could not see the bow of the Voyager. The lights were being directed from the Melbourne to the aft section of the Voyager. He experienced disbelief, shock and fear. He feared for the safety of his friends who were on the Voyager. There was frantic activity all around as a landing boat and nets were put over the side. The plaintiff could see men in the water. He heard men screaming and people were rushing everywhere.

The plaintiff realised that he had to return to the engine room. As they were taking on a great deal of water. He was in extreme fear and he realised that they only needed about four inches of water in the hanger deck to cause the ship to capsize. He was terrified that they would sink and he would be trapped down in the engine room. He was overwhelmed by the thought of the ship taking on water and of being trapped like rats. He was terrified but was still able to carry on with his duties. He saw nothing from 9.30 pm until midnight. He was alone with his thoughts and fear for his mates and fellow sailors on the Voyager, as he knew some would be dead following such a horrific collision.

(6) The plaintiff finished his watch at midnight and was shaking in terror. He was sweating and his chest and stomach felt very tight. In 3 Delta Port I he collapsed on his back. He saw men from the Voyager covered in oil shivering in their blankets. Some men had no clothes on. Some were vomiting. He thinks he asked about forty for fifty men from the Voyager is they had seen any of his mates. He could not find any of his friends. He feared for their lives. He went up on the deck with some other people and watched in horror and was overwhelmed by despair. He tried to sleep but was unable to and just sat in the mess in silence with his shipmates.

(7) After the collision and to this day he drinks alcohol excessively and frequently. He drinks until he just cannot walk and believes he sleep walks after going to sleep intoxicated. In most drinking sessions he would consume about 20 schooners a day. Prior to the collision, the plaintiff had tried to smuggle alcohol on board a ship because he felt that the rations were not sufficient for him (t 16). However, the plaintiff denied that he was a heavy drinker prior to the collision.

(8) About a week after the collision when the plaintiff went on shore leave, he was aware that he was anxious and was having trouble sleeping and had trouble with his feelings. He realised his thinking and the way he reacted to events was different to before the collision. He felt tense which seemed to cause headaches. Sometimes he felt panicky especially when on board the Melbourne. The memories of the collision were with him daily and he was not able to rid himself of them and cannot to this day without the assistance of alcohol. On some occasions the night of the collision seems to pass before his eyes like watching a movie. This spontaneously occurs when the plaintiff is being reminded by something such as the mention of the Navy on the news, the radio or the television. Some sight or sounds seem to remind him of the Navy and the night of the collision will come flooding back to him.

(9) On 10 February 1965, the first anniversary of the collision, the plaintiff was extremely depressed, sad and angry. He was morose and felt like he wanted to get away. He began drinking and drank and drank until he could not remember anything. He has become distrustful of authority and has no confidence in the Navy. Although the plaintiff was having problems with his feelings he thought that these were just a normal occurrence and he did not think there was anything psychiatrically wrong with himself and thought he would be able to cope and try to continue on with his career.

(10) Shortly after the collision allegations were made against the plaintiff for assault against a WRAN. He has no memory of this occurring. In his affidavit the plaintiff said no charges were brought against him, but in evidence he stated that the charges were dismissed. He was prosecuted by a Commander and a Captain and not allowed to call any witnesses.

(11) On 2 April 1965 the plaintiff was discharged SNLR (Services No Longer Required). His rank was that of ME. He is of the view he was dismissed because of the assault allegations. On being discharged the plaintiff felt very distressed, angry and let down. His whole career was in tatters. He began to drink even more to try and settle his nerves and get rid of the bad memories. On being discharged the plaintiff worked at a couple of casual jobs in Balmain.

(12) In October 1965 the plaintiff joined the New South Wales Fire Brigade and remained in this job for 12 years until November 1977. He lost this job as a consequence of his drinking.

(13) By the end of 1968 after the plaintiff had followed the Royal Commission into the collision he knew that people had been careless but disagreed with the finding that Robinson was guilty.

(14) In January 1978 the plaintiff joined the Merchant Navy. He remained in the Merchant Navy until 26 August 1996. As a consequence of the plaintiff’s alcoholism he was required to cease work and has not worked since. During his commission in the Merchant Navy the plaintiff continued to consume large amounts of alcohol and when at sea he felt anxious and edgy. The plaintiff knew that he was drinking alcohol to suppress the thoughts about the collision (t 26.35).

(15) In 1982 or 1984 (the date in the plaintiff’s affidavit and in his evidence differ) the plaintiff’s drinking was so severe that he collapsed. He was admitted to hospital for a week. He was diagnosed as suffering from cirrhosis of the liver. There were no discussion as to the reasons for his heavy drinking and he was treated and discharged.

(16) In 1985 the plaintiff wrote in his affidavit that his drinking continued unabated and his marriage was suffering. The plaintiff’s wife asked him to go and see a doctor. However, in evidence the plaintiff said he was divorced in 1984. He saw the doctor with a view to counselling about his marital problems and his drinking. He was not diagnosed with any psychiatric disorder. He was told to stop drinking and to try to be more tolerant.

(17) In about April 1995 the plaintiff heard of people suffering symptoms similar to those he suffered and came to appreciate that the reason he continued to suffer from such symptoms was due to a post traumatic stress disorder caused by the collision and its subsequent events.

(18) On 15 May 1995, the plaintiff consulted a Victorian firm of solicitors, Hollows and Foster in relation to the collision. These solicitors filed a writ in the Supreme Court of Victoria. The writ referred to the plaintiff as suffering from recurrent dreams, addition to alcohol, cirrhosis of the liver, depression and post traumatic stress as a result of the collision. The statement of claim also states that since the collision the plaintiff has suffered from intrusive dreams and recurrent nightmares and suffered from anxiety and stress. The particulars of negligence in the Victorian writ are similar to those in the statement of claim filed in this court. The Victorian proceedings have been discontinued.

(19) In November 1995 the plaintiff met someone who had been on the Voyager when it sunk. He told the plaintiff that he ought to get treatment and also see a solicitor, Mr James Taylor. The plaintiff rang Mr Taylor. Mr Taylor made an appointment for the plaintiff to be examined by Dr Wu a psychiatrist.

(20) In January 1996 the plaintiff consulted Dr Wu. At the consultation Dr Wu informed the plaintiff he was suffering from a psychiatric disorder as a consequence of the collision. Dr Wu also informed the plaintiff that his alcoholism had developed as a consequence of the collision. Dr Wu did not explain the exact diagnosis or nature of the psychiatric condition from which the plaintiff was suffering.

(21) Dr Wu in his report dated 29 January 1996 stated that the plaintiff’s behaviour from 1964 indicated the severity of his problems. He diagnosed the plaintiff as suffering from an adjustment disorder with behaviour problems and alcohol dependency. It was Dr Wu’s opinion that the collision is aetiological in causing the plaintiff to become an alcoholic.

(22) At the plaintiff’s consultation and after reading Dr Wu’s report there was nothing new brought to the plaintiff’s knowledge (t 27).

(23) Dr Iyer in his report dated 30 January 1997 (Ex A) also stated that the plaintiff is alcohol dependent and shows secondary depressive features which are a consequence of his prolonged alcohol consumption.

(24) At paragraph 13 of the plaintiff’s affidavit he states that now produced and shown to him is the NSWSC statement of claim. He read that statement of claim and until he had read it he had no knowledge of any acts of negligence by the defendant, nor had he known that those acts of negligence caused his psychiatric damage. In cross examination when questioned about his knowledge acquired in relation to the earlier Victorian Supreme Court writ, the plaintiff agreed that he read the Victorian documents before he signed and said “up there is was different”. After initially agreeing that paragraph 13 of his affidavit was correct, the plaintiff stated that he did not know whether it was correct nor was he aware of the implications. He did not understand what it said.

(25) On 20 March 1996 the statement of claim and the notice of motion to extend the limited period 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 20 March 1993.

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 20 March 1993); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b).

8 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered from an adjustment disorder and alcohol dependency. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant’s act or omissions until he read the statement of claim in 1996.

9   The defendant submitted that the plaintiff knew shortly after the collision that he suffered from the symptoms and Dr Wu’s report told him nothing new. The defendant submitted that the plaintiff knew he suffered a personal injury, the nature or extent of his injury and the connection between the personal injury and the defendant’s acts or omissions within the limitation period.

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

10   As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important.

11   Prior to the expiration of the limitation period the plaintiff knew that he suffered from anxiety and that he was a different person after the collision. In 1982 or 1984 the plaintiff had sought treatment for his addiction to alcohol. He had never consulted a psychiatrist until he saw Dr Wu in 1996. The plaintiff admitted that prior to the collision he was involved in fights and these were in part caused by the consumption of alcohol. Shortly after the collision the plaintiff knew that he drank alcohol to suppress thoughts of the collision. The plaintiff gave evidence that after the consultation with and the reading of the report by Dr Wu there was nothing new brought to his knowledge.

12 The plaintiff knew prior to the period stipulated by s 60I(1)(b) he had an alcohol dependency prior to the expiration of the limitation period. He also knew prior to the period stipulated in s 60I(1)(b) that he was a different person and I am not persuaded that he was not aware that he had an adjustment disorder because Dr Wu did not bring anything new to his knowledge. It is my view that the plaintiff’s claim under s 60I(1)(a)(i) fails.

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

13 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.

14 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. It is my view that the plaintiff knew the nature or extent of his personal injury prior to the expiration of the limitation period. In any event, the consultation with and report of Dr Wu told the plaintiff nothing new. The plaintiff’s claim under s 60I(1)(a)(ii) fails.

(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 filed a writ in the Victorian Supreme Court in 1995. That matter was discontinued and the plaintiff changed solicitors. On 20 March 1996 the plaintiff filed a statement of claim in this court. The allegations of negligence in the writ and the statement of claim are similar. The plaintiff cannot remember the date when he first read the Victorian writ but he did read the writ. However, the plaintiff has not established that he has become aware of the connection between the personal injury and the defendant’s acts or omissions because his evidence was that he did not understand what paragraph 13 of his affidavit meant. It is unclear if he has ever obtained the knowledge required in s 60I91)(a)(iii) particularly in light of his inconsistent evidence. The plaintiff has not passed through the s 60I(1)(a)(iii) gateway.

17   If I am wrong and the plaintiff has passed through one of the gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable

18   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.

19 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).

20   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 alcohol dependency and an adjustment disorder. There is medical evidence to support this claim. However, the cause of the plaintiff’s alcohol dependency will be a strongly contested issue should there be a trial.

21   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. If there is such prejudice, the applicant would not be able to demonstrate that it was fair and just that leave be granted. If there is an absence of significant prejudice to a potential defendant, there is no reason why the discretion should be exercised in favour of the plaintiff.

22   The defendant has admitted the collision but denied it was negligent. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean. As I have previously stated I accept that with the passing of 36 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice.

23   The defendant submitted that they are actually prejudiced because many medical records are unavailable as are some employment records, which includes some held by the Navy. The plaintiff attended Dr Schriv a general practitioner of Punchbowl between 1965 and 1982. He consulted Dr Schriv in relation to his problems with alcohol. He does not know if the medical practice still exists. Between 1982 and 1993 the plaintiff while in the Merchant Navy, consulted doctors at the nearest capital city. Between 1992 and 1994 he also saw a Dr Isaacs in Balmain. The medical practice still exists and his ex wife works there. The plaintiff also consulted a doctor in Trades Hall about 10 years ago and it is not known whether these records exist. In 1992 the plaintiff saw a Dr Suri in Toukley. Once again he does not know if these records exist.

24   Dr McGeorge actually interviewed the plaintiff after his alleged assault on an naval officer. Dr McGeorge has died but his notes of the interview are available. Dr Wu who wrote a report of the plaintiff’s psychiatric state has died. There is records of employment with the South Australian Railways for the short period before the plaintiff joined the Navy. It show only that he voluntarily resigned from the position of porter. For 18 years the plaintiff was employed in the Merchant Navy, there is injury/illness records covering only 1995 and 1996. There are no records available for the 12 year period that the plaintiff was in the Fire Brigade and it was from this job that he was discharged because of alcohol problems.

25   On the plaintiff’s own case, he drank alcohol and became involved in fights prior to the collision. As previously stated the cause of the plaintiff’s alcohol dependency will be strongly in issue at the trial. The medical records and employment records detailing his admitted problems with alcohol would be of the utmost importance, particularly in this case where the plaintiff has proved himself to be an unreliable historian on this vital issue.

26   After I have taken into account all of these matters, I am satisfied that the defendant will suffer significant prejudice and will not be afforded a fair trial. The plaintiff has not discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The plaintiff’s claim faills. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant’s costs.

27   The orders I make are:

(1) The plaintiff’s notice of motion filed 20 March 1996 is dismissed.

(2) The plaintiff is to pay the defendant’s costs.
**********

Last Modified: 02/05/2001