Fullarton v Commonwealth

[2005] NSWSC 444

CITATION:	Fullarton v Commonwealth of Australia [2005] NSWSC 444
HEARING DATE(S):	4/5/05, 5/5/05
JUDGMENT DATE :	2 June 2005
JUDGMENT OF:	Bell J at 1
DECISION:	Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed, being 22 October 2001

LEGISLATION CITED:	Limitation Act 1969 Limitation of Actions Act 1974 (Qld) Safety, Rehabilitation & Compensation Act 1988 Supreme Court Rules 1970
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 CRA Ltd v Martignago (1995) 39 NSWLR 13 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128
PARTIES:	Ross Adriane Fullarton (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 20843/01
COUNSEL:	J.L. Sharpe (Plaintiff) S. A. Woods (Defendant)
SOLICITORS:	Hollows Solicitors (Plaintiff) Blake Dawson Waldron (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 2 June 2005

20843/01 Ross Adriane Fullarton v Commonwealth of Australia

JUDGMENT

1 BELL J: The applicant was a member of the crew of HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager, cutting the destroyer in two and resulting in the loss of eighty-two lives.

2 On 22 October 2001 the applicant filed a statement of claim pleading that the collision was caused by the negligence of the officers and/or crew of the Voyager and/or of the officers and crew of the Melbourne and that as a result of the collision he was injured and suffered loss and damage. On the same day the applicant also filed a notice of motion claiming an order pursuant to s 60G of the Limitation Act 1969 (NSW) that the limitation period for the cause of action be extended.

3 The respondent, the Commonwealth of Australia (the Commonwealth), opposes the making of an order extending the limitation period.

4 The applicant was born on 19 December 1946. The limitation period for the cause of action pleaded expired on 20 December 1970.

5 The Commonwealth, by its defence filed on 18 October 2002, admits that the applicant was a member of the Royal Australian Navy (the RAN) serving on board HMAS Melbourne at the time of the collision and the allegations of fact contained in the particulars of negligence of the officers of HMAS Voyager in subparagraphs (a) to (n) together with the particulars of negligence of the officers of HMAS Melbourne in subparagraphs (a) to (i). Should the extension of time be granted, the issues at the trial will be proof of injury, causation and loss and damage.

6 The applicant pleads the following by way of particulars of injury:

“(a) Severe shock;
(b) Severe anxiety and depression;
(c) Panic attacks;
(d) Obesity;
(e) Difficulties with sleeping;
(f) Irritability, fatigue and headaches;
(g) Night sweats;
(h) Difficulty in concentrating, making decisions and solving problems;
(i) Mood swings, frustration and isolation;
(j) Post-traumatic stress disorder symptoms;
(k) Emotional detachment, insecurity and lack of confidence;
(l) Attempts to medicate himself by heavy use of alcohol with consequential impairment of body function;
(m) Hypertension;
(n) Lipomatosis of kidney;
(o) Dysthymic disorder;
(p) Irritable bowel syndrome;
(q) Cigarette addiction to 1988 with consequential impairment of body function;
(r) Generalised anxiety disorder;
(s) Adjustment Disorder”.

7 Section 60G(2) of the Limitation Act provides:

“If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

8 The onus is upon the applicant to demonstrate that it is just and reasonable for the court to grant the extension that is sought.

9 Section 60I(1) of the Limitation Act provides:

“A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the applicant:
(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 respondent’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 3 years after the applicant became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).”

10 It is the applicant’s case that but for the collision and the psychiatric injury that he suffered as the result of it, he would have remained in the RAN. He asserts that following his discharge from the RAN he moved from one job to another, his capacity to earn income having been significantly impaired by his psychiatric injury. He pleads that had the collision not occurred he would have been likely to have achieved the rank of commissioned officer and to have remained in the RAN until retirement at or about the age of fifty five years. On his retirement he would have received Defence Force retirement benefit entitlements.

11 The applicant swore four affidavits in support of his motion. He was cross-examined on them at some length. He was born in Queensland. He was one of six children and appears to have had a relatively uneventful childhood. His father had served in the Australian Army as a truck driver, attaining the rank of Sergeant. The father’s service included tours of duty in Egypt, Palestine and New Guinea. The applicant gave a history to Robert Wilks, a clinical psychologist, that his father had been a “pretty consistent” beer drinker and that he had been violent when drunk. When sober he had been “excellent”. His mother was a “good woman” who explained her husband’s difficulties as “the effects of the war”. The applicant reported a good relationship with his siblings.

12 The applicant attended the Corinda High School where he enjoyed woodwork, metalwork, trade drawing, physics and chemistry.

13 The applicant joined the RAN in January 1963 at the age of sixteen years. Prior to entry he was assessed as medically and psychologically fit by the RAN. A copy of the psychological assessment dated 31 July 1962 is annexed to his affidavit sworn on 19 October 2004.

14 The applicant’s initial training was carried out at HMAS Leeuwin over a period of twelve months. During this time he went to sea for a short period, working in the engine room of HMAS Dimantina. He says that this experience led him to contemplate an engineering career in the RAN.

15 The applicant’s Ratings Record of Service card is also annexed to the 19 October 2004 affidavit. He passed his ET 1 examination at HMAS Leeuwin on 22 February 1963. On 29 November 1963 he completed his Recruit School training attaining a distinguished pass.

16 The applicant joined the crew of HMAS Melbourne nine days before the collision. At the time of the collision, the applicant says that he was on a ladder leading to the boat deck. He felt as jolt as though the ship were hitting a wave or sandbank. He proceeded up the ladder and recalled seeing Leading Seamen Summerton, looking grey, who told him, “We’ve hit the Voyager”. The applicant went to the rail on the port side of the ship and he saw flickers of red flame and smelt a strong smell of fuel oil. He went up to the flight deck where he saw the stern section of HMAS Voyager jammed alongside HMAS Melbourne. Steam and vapour was in the air. He recalled a petty officer telling the men not to panic. He was instructed to get blankets and stretchers. He assisted in erecting stretchers in the hangar and in distributing boxes of chocolates to the survivors as they came on board. He saw that some were naked, some were wearing pyjamas, and all were covered in oil. They seemed dazed.

17 The applicant says that he heard that damage control parties had shored up the damage to the HMAS Melbourne’s bow. He did not express any fear for his own life and said that he had felt relatively collected on the night. He had not been particularly frightened. He stood on the port side of the boat deck watching the stern section of the HMAS Voyager. He observed her propellers rising higher and higher and he saw her sink. He remembered this graphically. He saw empty life rafts in the water, but he did not see anyone swimming. He said that his main thought on the night had been that “heads would roll over this, the loss of a destroyer”

18 The applicant said that later he had started to feel guilty about the collision: so many people had died and yet he had survived. Afterwards he continued to think about the collision and found it difficult to stop talking about it. He experienced a combination of feeling low and angry. The crew had been told not to discuss the collision with civilians on shore. He had a vivid recall of things said by members of the public and reported in the press at the time, that the HMAS Melbourne was a “killer ship”. The reception given to the crew of HMAS Melbourne had been so bad that they took off their hatbands when going ashore to avoid harassment.

19 The applicant said that at the time of the collision he did not drink alcohol. After the collision he says he started drinking with his shipmates. His drinking increased with the weeks that passed. He recalled being very angry at being accused of being negligent and of causing the deaths of the men on the Voyager.

20 Nine days after the collision the applicant was involved in a fight. A document described as “Daily Medical Record”, dated 20 February 1964, noted that the applicant had presented with a right black eye and recorded, by way of history, “fight after pubs closed last night”. Prior to this the applicant had not exhibited disciplinary problems in the RAN.

21 On 3 March 1964 the applicant was charged with a disciplinary offence arising out of a disturbance in his Mess.

22 On 12 November 1964 the applicant left the crew of HMAS Melbourne and went to HMAS Cerberus to undergo trade training. He passed his course and was recommended to undertake further training. At this time he says that he was drinking daily after classes, most nights to the point of inebriation.

23 On 22 April 1965 the applicant left Australia to join the HMAS Perth, which was in the United States. Around this time he said that he received a punishment warrant for drinking. On 23 October 1965 a medical record stated that the applicant was suffering from “post acute alcoholism”. The physical examination carried out on that day by the medical officer recorded that the applicant was in good general health. He had given a history that he had had a long night on tequila the previous night. A number of other unremarkable physical observations were recorded by the doctor.

24 The applicant was charged with further disciplinary offences on 31 March, 2 April (absent without leave) and 14 April 1966 (failing to hoist the Australian flag).

25 The applicant’s final posting in the RAN was to HMAS Albatross. He worked in the Motor Transport Compound. In September 1967 he was dealt with for an assault. In November 1967 he was convicted of a further naval disciplinary offence arising out of an incident when it appears that he broke into the galley looking for food and was later found asleep under a bench. The medical officer reported that the applicant had consumed an excessive amount of alcohol.

26 On 19 February 1968 the applicant was convicted of stealing a motor vehicle. The theft occurred the previous November when the applicant attended a wedding. It was his account that he had been drunk and that he drove off in a car belonging to one of the other guests.

27 A Minute Paper recording the recommendation for the applicant’s discharge from the RAN also noted an offence committed by him in December 1967. This was an incident in which he and other young seamen drank an excessive amount of alcohol and sat on a roof, waiting for Santa.

28 The applicant was discharged from the Navy on 1 April 1968. His commanding officer recommended that he be discharged ‘services no longer required’. It was noted that the applicant “has a good professional record and is a mechanician candidate. He has been well reported on Form AS.264, as a sailor with the ability to become a superior sailor …”. In conflict with his good professional record was his poor disciplinary record. It was further noted that all of the applicant’s offences were as the result of over-indulgence in alcohol.

29 In his first affidavit, the applicant stated that his results during his period of recruit training at HMAS Leeuwin had been good and that he was in the top ten in his class. He described himself at that time as having been balanced, confident and easygoing. After the collision he said that he had become moody and aggressive. He had started drinking a lot without understanding why. A short time after the collision he experienced a number of nightmares that had caused him to wake, sweating heavily, but he was not able to recall the content of them. Starting around 1970, the applicant began to have dreams about ships. These have continued. They are not unpleasant dreams, but feature immaculately turned out ships with their crew parading in dress uniform.

30 The applicant married in 1971 and adopted his wife’s child, a son named Leonard. He and his wife had a son, Peter. The marriage was troubled in part because of the applicant’s drinking. His first wife left him in 1977.

31 The applicant remarried in 1983. He says that the marriage has had its difficulties, and that he has drunk heavily at times.

32 The applicant set out in his affidavits details of the numerous employers for whom he has worked since his discharge from the RAN. He said that he would leave jobs because of arguments about safety, especially in relation to boilers, electricity and poorly maintained equipment. He had generally become anxious, angry and dissatisfied about operational and safety aspects of his jobs. His last position was as a truck driver. He had given this up because he had become increasingly concerned about his potential to lose control as a result of “road rage”.

33 In his first affidavit the applicant said that he had consulted his general practitioner, Dr Shanahan, and reported getting very angry on the road when driving trucks. He said that he felt he was churning inside his head and that he had told Dr Shanahan that it was a feeling that he had had since his Navy days. He said that Dr Shanahan had referred him to a psychiatrist, Dr Troup.

34 A report by Dr Troup dated 6 September 1999 is annexed to the applicant’s affidavit sworn on 19 October 2004. In his first affidavit sworn on 8 October 2001, the applicant stated (at paragraph [49]):

“Until then, I had not thought that I had anything wrong with me and certainly did not connect how I was with anything to do with the collision. I am starting to work through these kinds of issues with Dr Troup.”

In oral evidence he said that he had not made the connection until he read Dr Troup’s report.

35 Dr Troup diagnosed the applicant as having a generalised anxiety disorder with excessive anxiety about day-to-day events. She noted the applicant’s history of excessive anxiety about safety issues in the workplace. Dr Troup considered the applicant suffers from a dysthymic disorder, which had arisen out of his generalised anxiety disorder.

36 The applicant has since been seen by Dr Cooper, a psychiatrist, who in a report dated 17 September 2001, stated:

“Various aspects of the collision and the aftermath were clearly very stressful and indeed traumatic for Mr Fullarton. He has subsequently developed considerable problems with anxiety and for several years alcohol abuse. Formal assessment revealed ongoing active symptoms of a Generalised Anxiety Disorder where the diagnostic criteria in DSM IV are fulfilled. Not only does the focus of his obsessive worry revolve around issues of safety dating to the collision, they have generalised to more mundane aspects of his day to day existence.
It is my opinion that Mr Fullarton previously suffered from an Alcohol Abuse Disorder and probably a Depressive Disorder, however, both of these conditions are now in remission in part due to the effectiveness of his psychiatric treatment.
Mr Fullarton does not have Post Traumatic Stress Disorder as he has insufficient symptoms according to the DSM IV diagnostic criteria.
Although Mr Fullarton’s symptoms date to the collision, he endeavoured to obey his initial instructions to “get on with things”. Over the years he did not consider his symptoms to be indicative of psychiatric disorder, rather he continued to perceive the problem as being inadequacies in people and the environment around him particularly in relation to issues of workplace safety.
Mr Fullarton’s referral for psychiatric treatment approximately 2-3 years ago by his general practitioner occurred because of concerns that his anxiety was aggravating his hypertension. This reflects his lack of insight and understanding over the years about his anxiety symptoms despite many negative consequences that had resulted from them.”

37 Dr Cooper considered that the applicant’s persisting chronic anxiety is likely to continue to interfere with aspects of his day to day functioning. In Dr Cooper’s opinion, it is unlikely that the applicant will be able to return to any normal employment because of the specific nature of his anxiety symptoms and his inability to tolerate the stress associated with employment.

38 Dr Cooper reported that, although the applicant had significant symptoms of anxiety dating to the collision, he had not conceptualised the problems as a psychiatric disorder.

39 I turn to a consideration of s 60I of the Limitation Act. In the applicant’s submission I would be satisfied that he had brought himself within each of subs (1)(a)(i) – (iii).

40 It is necessary for the applicant to satisfy the Court that he was unaware of the relevant matter for the purposes of s 60I(1)(a)(i) or (ii) or (iii). In Commonwealth of Australia v McLean (1997) 41 NSWLR 389, in their joint judgment Handley JA and Beazley JA discuss the relationship between s 60G and s 60I. Their Honours observed at 395:

“When these provisions are read together, it becomes clear, as the Judge held, that s 60I requires the Court to be satisfied that the applicant was not aware of the matters referred to, but does not require proof of those matters as facts.
…
An application for extension is not a trial, or a dress rehearsal for the trial. The Court is concerned with whether there are serious questions to be tried …”

41 The Commonwealth submitted that for more than three years prior to the filing of his statement of claim, the applicant was aware (i) that he had suffered personal injury, (ii) the nature or extent of the personal injury suffered and (iii) the connection between the personal injury and its acts or omissions.

42 Personal injury is defined for the purposes of the Limitation Act in s 11:

“ Personal injury includes any disease and any impairment of the physical or mental condition of a person.”

43 I do not propose to go through each of the nineteen conditions particularised as injuries in the pleading. It seems to me that almost all of them are matters of which, necessarily, the applicant had an awareness. He pleads post-traumatic stress disorder symptoms (j), generalised anxiety disorder (r) and adjustment disorder (s). Dr Cooper considers that the applicant does not suffer from active post-traumatic stress disorder. He is reported to suffer a number of symptoms that meet the diagnostic criteria for that condition, including emotional detachment from others, irritability, impaired attention and concentration, extreme hyper vigilance and anhedonia. It may be that the applicant was not aware that some, or all, of these conditions or behaviours amounted to personal injury. Nonetheless I am satisfied that he was aware that he suffered from them. The diagnostic criteria for generalised anxiety disorder are set out in the report of Dr Troup. Again, although not necessarily aware that his excessive anxiety, worry and inability to control the worry in combination with his difficulty in concentrating and irritability amounted to a personal injury, it seems to me the applicant was aware that he suffered from these symptoms. I did not understand his answers in cross examination with respect to his awareness that he was suffering from anxiety and panic attacks to have been a denial of awareness of the symptoms of either condition (T 36.45 – 37.1).

44 The question of whether the applicant has established that he was unaware of the nature or extent of personal injury suffered is more problematic. It is clear that a person may not know the medical description or diagnosis of his or her condition, but nonetheless be aware for the purposes of s 60I(1)(a)(ii) of the nature and extent of injury: CRA Ltd v Martignago (1995) 39 NSWLR 13 per Clarke JA (with whose judgment the other members of the Court agreed). In that case, his Honour observed at 20:

“The subsection is concerned to enquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences.
…
I recognise that I have put the matter very generally. That is because the nature of the factual inquiry is not susceptible to precise definition. The range of factual situations which may be encountered by the courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant inquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.”

45 I am inclined to consider that the applicant was unaware of the nature and extent of at least some of the injuries that are the subject of his claim. The generalised anxiety disorder is evidenced by symptoms, including his obsessive worry about issues of safety. It is his case that this condition has interfered with his capacity to work and generally with his ability to function and that his life has been diminished because of it. While he was aware that he was anxious, angry and dissatisfied about operational and safety issues at work (affidavit sworn 19 October 2004 at [63]) I do not think that he understood the nature of his injury and its broad extent. In this respect I have regard to Dr Cooper’s report of 17 September 2001 (annexure RAF 5 to the applicant’s affidavit sworn 19 October 2004, at 4 “Diagnostic summary”).

46 In light of the view I have come to concerning s 60I(1)(a)(iii), it is not necessary to come to a concluded view concerning whether the applicant has satisfied me that he brings himself within (ii). As I have noted, it is the applicant’s evidence that he did not make the connection between the various symptoms of which he was aware and his experiences on board HMAS Melbourne at the time of the collision with HMAS Voyager until he read Dr Troup’s report. This evidence was the subject of challenge.

47 Dr Shanahan saw the applicant on 12 February 1998. The notes of the attendance are Exhibit 1. They record:

“PTSS. When I was in the Navy
WA Junior Recruits Estab

Went (?) to Melbourne Hit the Voyager

Four years later they kicked (?) me out the back door
Put a couple of blokes in hosp (unprovoked violence)
I don’t know why they discharged me
What have you got
Symptoms – Rubber guts Empty feelings Squirming feeling in the brain
? Is it his personality problems or Military problem”

48 On the day of the above attendance Dr Shanahan referred the applicant to a psychiatrist, Dr Stenberg. The referral stated the presenting problem as “anxiety states & violence” and that he was being referred for “? Personality disorder? Post trauma stress”.

49 Dr Stenberg is deregistered as a medical practitioner in New South Wales. The respondent’s inquiries reveal that Dr Stenberg took his records with him when he left Australia. His whereabouts are not known.

50 The applicant gave an account of his consultation with Dr Stenberg in an affidavit sworn on 28 April 2005. He had not seen the terms of Dr Shanahan’s referral. Dr Stenberg had not sought a history from him, other than as to his family background. He had seen Dr Shanahan because he was having extreme difficulties in his marriage and his wife wanted to leave him because his attitude. Dr Stenberg asked him, “What do you want to do?” to which the applicant responded that he felt like selling up and just sitting on the beach. Dr Stenberg asked him, “Do you want any drugs?” to which he had said “No”. Dr Stenberg did not tell him of his diagnosis or discuss his condition. The sole consultation with Dr Stenberg was a brief one lasting something of the order of ten minutes. It was about a year after this consultation, at a time when the applicant was experiencing problems with his blood pressure and getting more and more angry when driving, that he went back to Dr Shanahan and obtained the referral to Dr Troup.

51 In oral evidence the applicant said that Dr Shanahan had been his general practitioner for a period of time and that he had seen him on a number of occasions. The applicant recalled telling Dr Shanahan in the course of his consultation with him in 1998 (prior to the referral to Dr Stenberg) of symptoms that included rubber guts, anger and short temperedness and that he had been like this for quite a long time, since his Navy days or during his Navy days as well (T 34.33-34). In this context he had told Dr Shanahan that he had been on board HMAS Melbourne at the time of the collision. He said this:

“It is part of my history, for how long I had been feeling like that and I told him some of my Naval history, about how I joined the Navy and how I had served on ships, I had been involved in the Melbourne/Voyager collision, how I had destroyed my career by alcohol and that things never really picked up for me” (T 34.48-53).

The applicant denied that in his mind he understood his symptoms to have arisen from the effects on him of the collision. He agreed that he had told Dr Shanahan about his problems with violence and, although he could not recall telling the doctor that he had put a couple of blokes in hospital, he agreed that an incident of this character had occurred when he was at HMAS Albatross. He had not connected his violent behaviour with the collision. I accepted the applicant’s evidence in these respects.

52 Dr Shanahan’s notes record that the applicant attended on him on 18 June 1999. Included amongst handwritten notes recorded on that day is the following:

“PTSD Melbourne Voyager: Non normal discharge
Case can be reassessed. Needs report from psychiatrist. Refer Dr Troup.”

53 It was put to the applicant in cross-examination that on 18 June 1999 he had raised with Dr Shanahan the possibility of post-traumatic stress disorder arising out of the Melbourne collision. The applicant had no recall of having done so. He said that he remembered Dr Shanahan telling him that he needed a report to make a claim on Veterans’ Affairs and that he had told Dr Shanahan that he was not a veteran, he was an ex-servicemen. He recalled Dr Shanahan saying that he needed a pension. Thereafter the applicant applied for a pension. The application was directed to the Commonwealth Department of Veterans’ Affairs and stated that the applicant suffers from an illness described as general anxiety disorder. The form includes a question, “When did your injury happen or when did you first notice the disease or illness?” The applicant recorded in answer to this question, “16 July 1999”. Elsewhere on the form he recorded that he first received medical treatment for the injury in May 1999.

54 A report prepared by Dr Troup was in due course submitted to the Commonwealth Department of Veterans’ Affairs in support of an application by the applicant for a lump sum payment for permanent impairment in respect of a generalised anxiety disorder. By letter dated 9 October 2000 the applicant was informed that he had been assessed as suffering a twenty percent whole person permanent impairment and he was advised of an entitlement to the amount of $36,402.19 in compensation. His attention was drawn to the provisions of s 45 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) and of his right to sue the Commonwealth for damages at common law. In due course, by election dated 7 December 2000, the applicant signified his intention to sue the Commonwealth.

55 The records produced by Dr Troup relating to her treatment of the applicant begin on or about 12 May 1999. This is the date recorded in the application as the date on which treatment commenced (although the date upon which the illness was diagnosed is put at July 1999). I accept the applicant’s account of the content of his discussions with Dr Stenberg. I accept that he was referred to Dr Troup after he reported concerns about his level of anger when driving and not because he understood he was suffering any psychiatric difficulties arising out of the Melbourne/Voyager collision.

56 I accept that it is the applicant’s recall that he first became aware of the suggested link between the collision and his symptoms when he read Dr Troup’s report. The report set out the association between the two in a comprehensive way. I think, however, that the probability is that the applicant became aware of Dr Troup’s opinion (that he was suffering from a psychiatric illness arising out of the Melbourne/Voyager collision) prior to the date of her report, probably in July 1999 during the course of consultations with her. This is consistent with the statement that he made in the application for a pension and accords with the logic of events. Dr Troup’s report drew on material presumably obtained by her in the course of consultations prior to the date of its preparation. She does not record the date of any consultation with the applicant. A worksheet annexed to the report is dated 20 August 1999 and evidences that she had obtained a history from the applicant on or before that day.

57 I am satisfied that the applicant was unaware of the connection between the Melbourne/Voyager collision and the symptoms which he reported and which Dr Troup diagnosed as constituting generalised anxiety disorder (and secondary dysthymic disorder) until around July 1999. The present application is one made within three years after the applicant became aware (or ought to have become aware) of all three matters listed in

s 60(1)(a)(i) – (iii).

58 I now turn to a consideration of s 60G(2) and to the separate question of whether the applicant has succeeded in establishing that it is just and reasonable to extend the limitation period to permit him to bring his claim.

59 In Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 Sheller JA (in a judgment with which Meagher JA, Handley JA and Brownie A-JA concurred) observed that the effect of the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 is that an application for an extension of time under the limitation legislation should be refused if granting it would result in significant prejudice to the potential respondent. In the Commonwealth’s submission this is such a case.

60 Causation would be a central issue at any trial. The Commonwealth submits that it is deprived of witnesses who can provide observations of the applicant dating back to the period before the collision (and in the years shortly thereafter). This would be relevant to a determination of the link between his abuse of alcohol and cigarettes, to take two examples, and any claimed psychiatric injury following the collision. The Commonwealth notes that after the passage of more than forty years it is unrealistic to expect that the applicant’s shipmates might have any recall of his conduct. The service records, consistent with the applicant’s case that in the period after the collision he commenced to abuse alcohol, might bear a different interpretation if the circumstances surrounding each incident were known.

61 The Commonwealth identified the inability to locate witnesses who might be able to comment on the applicant’s father’s drinking patterns to be a further item of prejudice. It is deprived of the ability to explore the link between alcohol abuse and genetic factors.

62 It was contended that witnesses who knew the applicant at the time he commenced smoking might be in a position to comment on his smoking habits: whether he presented as an ordinary social smoker.

63 On the Commonwealth’s behalf, considerable reliance was placed on the judgment of McHugh J in Brisbane South Regional Health Authority. His Honour, dealing with the extension provisions under the Limitation of Actions Act 1974 (Qld), emphasised that an applicant who satisfies the preconditions does not acquire a presumptive right to an order extending time. The applicant who satisfies the conditions is entitled to ask the court to exercise a discretion in his or her favour, but it remains for the applicant to demonstrate that it is just and reasonable to do so. My attention was directed to his Honour’s observations at 551 concerning the rationales for the existence of limitation periods that:

“Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. … Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued.”

64 I do not consider the absence of witnesses able to comment on the applicant’s drinking, cigarette smoking and general character prior to and after the collision while he remained a member of the RAN to give rise to significant prejudice to the Commonwealth in defending the claim. The applicant joined the Navy as a sixteen-year old youth. He was still below the legal age for drinking at the time of the collision. That his consumption of alcohol should, by and large, post-date the collision is unlikely to be a matter of moment. The applicant agreed in evidence that he had smoked while in the Navy, offering as one reason for doing so that cigarettes were available to seamen duty free. I consider it somewhat fanciful to think that the Commonwealth might defend that part of his claim by which he asserts his cigarette smoking to be causally linked to psychiatric injury by leading evidence that as a youth he appeared to be a social, as distinct from an anxious, smoker.

65 In evidence, the applicant acknowledged that the account he gave to Mr Wilks of his drinking in the period after the collision was accurate: “drinking ashore with other sailors c. twice per week, two or three pots of beer at a time” (Robert Wilks’ report, 19 September 2001). The applicant’s case is of increased drinking as time went by. I do not consider the inability to call evidence relating to the circumstances in which the applicant came to notice for disciplinary offences committed while drunk to constitute any real prejudice to the Commonwealth. Should his claim proceed, the applicant will no doubt invite the Court to draw an inference from the frequency with which he came to official notice in connection with drinking that he was exhibiting symptoms of alcohol abuse consistent with the psychiatric injury that he claims. This would be an available inference whether an examination of the circumstances of each incident revealed it to be an instance of lone, morose drinking or of high spirited social drinking with young shipmates.

66 The history given to Mr Wilkes relating to the applicant’s father’s drinking pattern may be significant to a case that any excessive alcohol consumption is likely to be explained by genetic factors. The fact that the father had a problem with alcohol is acknowledged and may be commented upon. The inability to lead evidence as to the nature and extent of Mr Fullarton senior’s drinking pattern does not impress me as amounting to prejudice to the Commonwealth in defending the son’s claim.

67 The applicant’s service records include the results of medical examinations undertaken when he was an applicant for a diving course and for becoming a sub-mariner. As the Commonwealth submits, after this interval of time there is no prospect that the various naval surgeons who examined the applicant would have any recall of him. On his application to become a sub-mariner the applicant was assessed as being emotionally stable. The doctor ticked a box to signify so much. The Commonwealth submits a bare record of this sort might be thought to have little weight, whereas closer to the time the doctor may have been in a position to give a detailed account of why he had come to this opinion. The examination was a general medical one and it is not suggested that the practitioner was qualified to or did carry out any psychiatric assessment. It is not suggested that the plaintiff was exhibiting frank symptoms of any psychiatric condition at the time.

68 The Commonwealth’s solicitors have, with the assistance of a firm of private investigators, endeavoured to locate persons who served with the applicant when he was a member of the RAN. A number of names were furnished by the applicant of people who could give an account of him at this time. Only two of the persons contacted appear to have any recall of the applicant. Mr Summerton, the Petty Officer, whom the applicant recalls as informing him of the disaster, was contacted. He is reported to have responded, “My memory is bad. I can recall details of my childhood but not later parts of my life.” For the reasons earlier given I am not persuaded that the absence of witnesses who remember the applicant, either on board the HMAS Melbourne on the night of the collision, or more generally during his period in the RAN, constitute significant prejudice to the Commonwealth. The applicant was a youth at the date of the collision. The recollections of his superiors or shipmates as to his character and habits in the relatively short period of his service are not likely to be significant to the determination of the issues raised by his claim.

69 In the Commonwealth’s submission, given that the fact of injury is in issue, the inability to closely examine the applicant’s claim to have been morbidly anxious about workplace safety is a matter of significant prejudice.

70 In its case, the Commonwealth read a number of affidavits sworn by John Emmerig, the partner of Blake Dawson Waldron who has the conduct of these proceedings on its behalf. In his affidavit sworn on 28 April 2005, Mr Emmerig sets out the results of inquiries undertaken on his instructions with a view to preparing the matter should it proceed to trial. They include the fact that a number of the doctors whom the applicant reports having consulted over the years have no recall of him and do not hold records relevant to him. It is to be noted that the applicant acknowledges consulting medical practitioners from time to time but does not claim to have sought assistance for the symptoms of anxiety and depression until recent times.

71 Mr Emmerig retained an investigator to make inquiries of the various firms for whom the applicant reported having worked. The results of these inquiries are set out in paragraphs 10(a) to (o) of Mr Emmerig’s affidavit of 28 April 2005. While a number of persons who were contacted had little or no recall of the applicant, and while a number of persons were not able to be located, it is to be observed that various persons were spoken to who had worked with the applicant and who were able to comment on his conduct at work. The results of some earlier investigations conducted on Mr Emmerig’s instructions are set out in paragraph 13(a) to (c) of his affidavit sworn on 28 April 2005. The Commonwealth has been able to locate some persons with knowledge of the applicant’s employment both at Beenleigh Rum and at Davis Gelatine.

72 Annexed to Mr Emmerig’s affidavit of 28 April 2005 is a report of Associate Professor Champion upon which considerable reliance was placed by the Commonwealth. Professor Champion commented on the report of Dr Troup, observing of her diagnosis that it appeared to be a thorough and reasonable assessment. In Professor Champion’s view the criteria for the disorders were well met. He noted that there had not been much discussion about causal influences, though some reference to a link between the Voyager collision and excessive consciousness of safety was inferred. Professor Champion observes that there was nothing highly specific about the applicant’s psychological disorders such that would establish a strong causal link with the collision. To document a causal link between the experience of the collision and the development and progression of psychological symptoms would have required prospective medical/psychological documentation. Professor Champion observes that heavy drinking is commonplace in the Services and that the applicant was potentially predisposed to this behaviour if it be accepted that his father had an alcohol problem. He went on to observe:

“He probably was somewhat vulnerable to alcohol and its consequences. This retrospective, rather late, history pointing to an influence of the Melbourne/Voyager collision on anxiety, excessive concerns about safety, and turning to alcohol to relieve such anxieties, is clearly weaker than the causal connection that theoretically might have been established if there were a prospective medical record. From the information that has been provided and which I had the opportunity to review, it would be difficult to argue for more than a weak or partial causal influence of the collision” (Report G. David Champion, 31 March 2005, JMCE 5 to affidavit sworn 28 April 2005, at p 6).

73 Professor Champion noted that the evidence of drinking and of involvement in fights when the applicant was aged seventeen or eighteen is not diagnostic of a post-traumatic stress disorder and may be accounted for by family history, cultural influences, youthful risk-taking behaviour and perhaps by relief of anxiety. In commenting on the question of the extent to which the applicant’s psychological problems may be related to other life experiences, Professor Champion notes that opinions would vary on the proportion of his anxiety disorder, alcohol abuse and so on that would be attributable to the collision (at p 8 [6]). Important to the way the matter was argued is Professor Champion’s opinion that:

“The “effluxion of time” since February 1964 undoubtedly increases the difficulty or impediment in relation to determining any of the above discussed matters (1-7). Psychological disorders are inherently complex, multi-causal, and the longer one lives and experiences stresses and potential causal influences, the more difficult it becomes to identify unequivocal and important causal influences. One has to rely on the individual’s history and report, consider the individual’s interpretations and beliefs, and these are not necessarily reliable, particularly in a litigation context” (at p 8 [8]).

74 The thrust, as I understood the Commonwealth’s submissions, was that the very lengthy delay in this case produced the result that the question of the cause or causes of the applicant’s generalised anxiety state will fall to be determined largely on a history that in material respects cannot be investigated.

75 It seems to me that a number of the matters addressed in Professor Champion’s report do not support the Commonwealth’s submission of actual prejudice. As Professor Champion observes, the absence of prospective medical documentation makes the applicant’s case a harder one on causation to make good. The significance of the family history of the father’s alcohol abuse is known and able to be commented upon by expert witnesses qualified on the Commonwealth’s behalf.

76 An important consideration is the applicant‘s claim to have been preoccupied with safety issues in the workforce. Professor Champion acknowledges this could be a significant link with the collision, even though it is not necessarily a specific causal effect (at p 8, [6]). If any trial is to be a fair one the Commonwealth should have the opportunity to test the assertion that the applicant has exhibited excessive concern about safety issues. The evidence is that the Commonwealth has not been able to locate all of the persons who might have relevant evidence to give on this topic, and among former work associates who have been contacted, some no longer have any recall of the applicant. As I have noted, the Commonwealth has been able to locate and speak to a number of persons with knowledge of the applicant in his civilian work life.

77 In McLean v Sydney Water Corporation [2001] NSWCA 122 Giles JA (in a judgment with which the other members of the Court concurred) observed at [27]:

“I do not exclude as a consideration properly to be taken into account as part of, or together with considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in a particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial.”

78 I am satisfied that a fair trial can still be had on the applicant’s claim. It is not in issue that the collision was caused by negligence for which the Commonwealth is liable. The applicant has established that there is a serious question to be tried as to whether he suffered the psychiatric injuries of which he complains and whether they were caused by the Commonwealth’s admitted negligence. I am persuaded that the applicant has established that it is just and reasonable that the limitation period be extended to enable him to bring his claim.

79 Written submissions were handed up at the conclusion of the hearing on behalf of the Commonwealth with respect to the question of costs. It is the Commonwealth’s submission that the appropriate order is that provided by Pt 52A r 17 of the Supreme Court Rules 1970. I have not heard from the applicant on the question of costs. I will afford him an opportunity of being heard before making any order with respect to costs.

ORDER

80 Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed, being 22 October 2001.

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