Crosbie, J.M. v Commonwealth of Australia

[1993] FCA 1010

J O / O 93

JUDGMENT NO. ........ ........ .. I ........ ....

~ O R D S

LIMITATION OF ACTIONS - application to extend time f o r bringing of action - s 60G Limitation Act 1969 (NSW) - whether ' just and reasonable" t o extend time.

L i m i t a t i o n 1969 (NSW) - S 60G(2)

JOHN MICHAEL CROSBIE v C A -

No. NG 565 of 1991

REGISTRY

FOSTER J
24 AUGUST 1993

SYDNEY

2 4 JAN 1994

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 565 of 1991

)

GENERAL DIVISION )

BETWJZEN:  JOHN MICHAEL CROSBIE

Applicant

AND :  COMMONWFALTH OF AUSTRALIA

Respondent

CORAII:	FOSTER J
DATE :	24 AUGUST 1993
P U E	: SYDNEY

REASONS FOR JUDGMENT

(Extempore)

HIS HONOUR: This is an application for an extension of time in which to bring proceedings pursuant to s 60G(2) of the &imitation Act 1969 (NSW). The nature of the injury in respect of which the applicant seeks to sue sufficiently indicates that it falls within the description of "latent

contrary has not been submitted on behalf of the respondent,	injury". There is therefore no necessity, and indeed the
for any consideration based on the provisions of s 60P. The only matter for determination is whether the material placed before me is sufficient to render it just and reasonable that the application to extend time be granted.
The material that has been placed before me is somewhat disjointed. However, the applicant's claim appears to be based on two general propositions. The first is that his service aboard HMAS "Warrego" in 1955 put him in a situation of exposure to ionising radiation in some of the areas to which the vessel and his duties on the vessel took him in the Monte Bello Islands group. His second claim is morc; specific, namely, that on at least one occasion he consumed fish caught in the waters in the area where the ship was moored or operating and that fish might reasonably be regarded as having become radioactive as a result of the previous detonation of the nuclear device.
It is put on behalf of the respondent, the Commonwealth of Australia, that the evidence does not sufficiently disclose any indication of a breach of the duty of care which would admittedly have be+? owed to the applicant as a serving member in the Navy by the Commonwealth of Australia. It is put that the evidence, in effect, indicates
that the applicant was not relevantly in an area where it could be said there was any likelihood or any foreseeable
likelihood of exposure to radiation and, secondly, as I understand it, that the ingesting of radioactive fish was not, in all the circumstances, a foreseeable result of his being in the area.
I have not found this a particularly easy matter to decide, not the least because of the difficulty in piecing together the pieces of information in documentary form which
have been put to the Court by way of exhibits.
The vessel in which the applicant was serving, the HMAS "Warrego", was clearly in the Monte Bell0 Islands group in November 1955. In respect of that group in general, there is evidence to be found in a document emanating from the Prime Minister's Department on 9 November 1954 that examination by scientists in November 1953 had established that the islands at that stage were still very contaminated and that the conditions were not likely to change significantly over the next ten years. It was further stated in that letter that an analysis had been made of the hazards presented to an individual by the contamination and areas of slight risk and
no risg- had been defined.
It stated that the risk of damage or undesirable symptoms was slight. That in itself is a very unclear statement. Presumably it relates to areas of slight risk and no risk. The prospect of there being only slight risk of
which were described as still being very contaminated seems damage or undesirable symptoms from being exposed to areas very unlikely. It was also indicated it would be dangerous to remove any material or equipment from the areas without special precautions.
There was further indication that despite an original prognosis of contamination hazard for a period of
three years after the explosion, it was now accepted that the area would remain contaminated for at least ten years. It would appear that this document relates to the Monte Bello Islands as a group, it being indicated that certain parts of the group were no longer a high risk and could be regarded as of slight risk or no risk.
There is also evidence from declassified documents, one of whlch appears to be dated 4 March 1956, to the effect that:

"There is a possibility that, in certain areas, there may be some slight radiological hazard arising from eating fish that are caught in the immediate vicinity of the Monte Bello Islands."

This material, of course, is of more significance in relation to the second aspect of the applicant's claim.

-

So far as the applicant being exposed to areas which

might still be regarded in 1955 as of high or substantial

risk, it is necessary to have regard to what he himself had to	say in a statement furnished for the purposes of the Royal
Commission and also what he stated in evidence given to the Commission.
Apart from reference to the ingestion of fish to which I shall return, he referred to an occasion when he was apparently present on the island eating oysters. On this occasion an incident occurred in which a companion cut his