Brown v Commonwealth of Australia

[2000] NSWSC 90

CITATION:	Brown v Commonwealth of Australia [2000] NSWSC 90
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 21237/95
HEARING DATE(S):	24 February 2000
JUDGMENT DATE:	25 February 2000
PARTIES :	Robert Alfred Brown (Plaintiff) Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M L Brabazon (Plaintiff) Mr G Rundle (Defendant)
SOLICITORS:	Mr James Taylor Myrtleford Victoria (Plaintiff) Mr Kathner AGS (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 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; 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 (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) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)
DECISION:	See para 33

2

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 25 FEBRUARY 2000

21237/95 - ROBERT ALFRED BROWN 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 6 December 1995 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 15 February 2000. The defendant did not file any affidavit evidence and opposes the orders sought. As the plaintiff is seriously ill with a limited life expectancy, the hearing date has been expedited and fixed for 26 and 27 March 2000.

2   For the purposes of this application I find the following facts. I observed the plaintiff carefully when he gave evidence and during cross-examination. He took a long time to answer questions and spoke slowly. I formed the opinion that he was a truthful witness.

(1) The plaintiff was born on 5 May 1945 and is now 55 years of age. He now resides in Queensland.

(2) On 1 June 1962 the plaintiff became a member of the Royal Australian Navy. He was then aged 17 years and was in good health both physically and psychologically. This accords with the Navy medical examination records of 30 May 1962 (RAB1). The plaintiff was given a free discharge on 4 May 1993. He was then aged 48 years.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne. He was an aircraft handler holding the rank of Able Seaman AAH.

(4) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision.

(5) At the time of the collision the plaintiff was on the flight deck. There were night flying exercises in progress and plane were ready to come in.

(6) The day after the collision the plaintiff saw the scarring of the deck which had been gouged out by the Voyager’s super structure. The plaintiff had been standing at that spot moments prior to the collision. He realised how close he had come to death. The fact that he had seen what was happening and was able to save himself did not make life any easier to live when he knew that so many other never knew what had happened or had the opportunity to save themselves or their shipmates.

(7) When on leave the plaintiff went home for a few days and he was abused by a relative of his wife whose brother had been killed in the collision. He broke down and cried and still cries when the thoughts of that night overwhelm him. The plaintiff found out that one of the deceased was from his home town of Hervey Bay. He still suffers from feelings of guilt at having survived when so may were lost and from the criticisms received at being a members of the Melbourne.

(8) Since the collision and whenever the plaintiff went back to sea he was in fear. He became jumpy, anxious and nervous but tried to keep a lid on his feelings by working. He thought that these feelings were normal and he could or would just have to cope. When at sea he would constantly be checking and looking out for ships. He built a wall around himself and tried to manage and control his emotions as it is not the done thing in the Navy to show any weakness and he just had to tough it out. He kept to himself as much as possible and when alone he avoided civilians and some service personnel who wanted to talk of the collision. Whenever the plaintiff hears comments of the collision they cut deep and bring him close to breaking down. He had to leave social functions early as a result of adverse comments made and the feeling that he is alone. He loses his temper and becomes angry and agitated. He argues and becomes aggressive. His behaviour embarrasses his wife and family and on reflection himself. He avoids travelling by public transport anywhere by himself so that he does not have to talk to anyone. If he is required to attend appointments by the time he has to see that particular person he is a bundle of nerves and becomes agitated. If he has to travel by air he needs to drink to help allay his fears of flying and being trapped in a confined space.

(9) In 1967 the plaintiff was posted to HMAS Albatross and then HMAS Sydney which was involved in taking troops to South Vietnam. He continued to have nightmares relating to the collision.

(10) In 1969 the plaintiff rejoined the Melbourne and was on board when it collided with the USS Evans. This collision caused the memories of the Melbourne/Voyager collision to recur. The actual collision with USS Evans did not impact on him as much as the Melbourne/Voyager collision. The Voyager collision remained constantly in his mind.

(11) Prior to the Voyager collision the plaintiff would drink the occasional two or three cans whenever he attended social events. After the accident he began to drink more frequently especially whilst ashore and on weekends. He was jumpy and was having trouble sleeping and having nightmares and he found the alcohol helped him to deal with that problems. The plaintiff also found himself having cigarettes while he was drinking which also helped settle his nerves. He just thought that this was a normal reaction. As the years went on he began to drink more and more heavily to help steady his nerves and help with his sleep when he was having nightmares. He stopped smoking in 1978 but his drinking continued and began to include spirits. However he was still able to cope with his problems by engrossing himself in his work and trying to keep a lid on his emotions.

(12) The plaintiff’s anxiety and nightmares became far more frequent after he was discharged from the Navy. While he was in the Navy he had his work to help him cope and when his sleep became troubled he would drink. After leaving the Navy the plaintiff’s drinking markedly increased to the extent where he was drinking two dozen 750 ml bottles of home made beer per day plus one to two bottles of Scotch per week.

(13) On 4 March 1993 the plaintiff was granted a free discharge from the Navy and had attained the rank of Warrant Officer.

(14) The plaintiff’s evidence is that he could have been promoted more quickly if the collision had not occurred. The plaintiff has not worked since leaving.

(15) In mid 1995 at the Bribie Island RSL the plaintiff spoke to a Veterans Affairs advocate concerning his hearing and skin damage. The advocate completed forms. In this form there was mention of “PTSD and post traumatic stress disorder” and a reference to 1989. This entry was written by the advocate. The plaintiff’s evidence was that there was no change in 1989, it was just as he had always known that something was wrong.

(16) In September 1995 the plaintiff saw an article in the Courier Mail regarding claimants of the Melbourne/Voyager collision who were being represented by Mr James Taylor, solicitor. The plaintiff contacted Mr Taylor. Mr Taylor arranged for the plaintiff to be examined by Professor Beverley Raphael.

(17) On 3 January 1996 the plaintiff saw Professor Raphael. Professor Raphael informed the plaintiff that he was suffering from a psychiatric disorder. Post Traumatic Stress Disorder (PTSD) major depression and substance abuse disorder and these were caused by the collision. Up to then the plaintiff thought that his emotional reactions to the collision were normal ones with which he had attempted to cope. He now has some understanding of the effect that the collision has had on his life and the life of his family. The plaintiff stated that he only became aware of the nature and effect of his psychiatric injury when he was told by Professor Raphael.

(18) On 9 January 1999 Professor Raphael reported:

“It is my opinion that Mr Brown’s Post-Traumatic Stress Disorder arose from his experience in the “Melbourne”/“Voyager” collision and his direct experience of witnessing the collision from his position on the flight deck at the time. Mr Brown has symptomatology which reflects clearly his experience of this. While Mr Brown also experience the “Melbourne”/“Frank E. Evans” collision, he did not witness this directly, although it was upsetting to him at the time. The phenomenology of his symptoms does not reflect disorder related to that event, although might have been exacerbated by it.
It is my opinion that Mr Brown’s condition has worsened since his retirement and that he needs psychiatric treatment for both the Post-Traumatic Stress Disorder and Major Depression as well as for the Substance Abuse Disorder, and I have so advised him. It is highly likely that his condition will continue to deteriorate without such treatment.”


(19) The plaintiff says that until he read the statement of claim, which I infer occurred in 1995 at the earliest, he had no knowledge of any negligent acts or omissions by the defendant. He said that until he read the statement of claim he had not known that those negligent acts or omissions had caused him psychiatric damage.

(20) On 29 November 1995 the statement of claim was filed.

(21) On 6 December 1995 the notice of motion seeking an extension of the limitation period was filed.

(22) In January 2000 the plaintiff was informed by Drs Vincent and Hynes that his serious ill health, namely liver failure, ulcers and related problems were caused by his alcoholism. That was the first time that he was made aware of his liver condition and associated problems.

(23) Dr Vincent in his report dated 7 February 2000 stated that the plaintiff was again admitted to hospital on 19 December 1999 with acute liver failure and associated gastrointestinal haemorrhage. On 26 January 2000 the plaintiff was again admitted to hospital “in extremis” in a comatose condition with liver failure (and later renal problems) and that the plaintiff continues to remain dangerously ill, though rallying a little. His prognosis for the plaintiff was now to be regarded as grave indeed with his alcohol induced liver disease likely to deteriorate at any time.

The Law

3 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such period as it determines”. The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order.

4 The relevant provisions of s 60I are as follows:

“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:

(a) the plaintiff:


(i) did not know that personal injury had been suffered; or

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

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

5 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 6 December 1992.

6   The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 6 December 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).

7 The plaintiff relied on s 60I (1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric conditions of PTSD, depression and substance abuse until 3 January 1996. Further he did not know that he had liver damage until January 2000. 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 1995 at the earliest. The defendant did not make submissions other than to state that at trial, the cause of the plaintiff’s psychiatric disorders will be in dispute.

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

8   Prior to the expiration of the limitation period the plaintiff knew that he suffered from nightmares and anxiety. He knew he had loss of confidence and self esteem. He had become argumentative and aggressive. He was drinking to help him cope but did not consider that he has a problem with his consumption of alcohol although he was aware that he indulged in binge drinking and drinking alcohol at night and on weekends. However he thought that all of these symptoms were normal and that he would cope. The plaintiff did not seek any medical advice about his psychological condition during the Navy.

9   In 1993 when the plaintiff left the Navy his consumption of alcohol markedly increased. In 1995 the Veterans Affairs officer completed a VetAffairs pension form for him. It listed his injuries as hearing loss, skin damage and asbestosis. It also mentions PTSD and there was a reference to 1989. The plaintiff gave evidence that there was no change in his mental state in 1989 and he did not know what PTSD meant until 1996 when he was told by Professor Raphael. In 1995 and 1996 he had nightmares of the collision two to three times per week.

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   I accept and am satisfied that the plaintiff was not aware until January 1996 at the earliest that he suffered a personal injury namely PTSD, substance abuse and depression. It was not until January 2000 that he had grave liver failure induced by alcohol.

12 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 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).

15 For the reasons given under s 60I(1)(a)(i), it is my view that the plaintiff did not know the nature or extent of his personal injury until January 1996 when he became aware that he had a diagnosable psychiatric illness. It was not until January 2000 that the plaintiff became aware that he suffered from an alcohol induced liver disease and is dangerously and gravely ill. 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 ”

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

17   The plaintiff submitted that it was not until he read the statement of claim in 1995, 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.

18 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).

19   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.

20   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.

21 I accept that it was not until 1995 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 as will the cause of the illnesses particularly the substance abuse. 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, depression and later liver disease. There is medical evidence to support this claim. He claims that he would have been promoted quicker had he not suffered the psychiatric injuries from the collision.

26   I turn now to the effects of delay and what was said in Taylor. In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E.

27   Mason P analysed the views of the Judges of the High Court in Taylor’s case. The President quoted the passage by McHugh J which begins “Legislatures enact” and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson and McHugh JJ appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour.

28   Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

29   Mason P perceived that there may be a distinction between the notion of “significant prejudice” and the notion that delay makes “the chances of a fair trial unlikely”. In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendant would suffer “significant prejudice”.

30   The defendant has admitted the collision but denied it was negligent. 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. The defendant did not put on any evidence to establish that it suffered actual prejudice.

31   Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. The plaintiff spent his entire working career with the Navy. His employment records are available. There are Navy records showing that at the time when the plaintiff joined he was in good physical and psychological health. His Navy medical records throughout this period are also available. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean.

32   After I have taken into account all of these matters, I am not satisfied that the “chances of the defendant obtaining a fair trial are unlikely” nor am I satisfied that the defendant will 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. The appropriate order for costs is that costs be costs in the cause.
33   The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 29 November 1995.

(2) Costs are costs in the cause.
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Last Modified: 09/25/2000