Irving v The Commonwealth of Australia - [2006] NSWSC 958

No judgment structure available for this case.

CITATION: Irving v The Commonwealth of Australia [2006] NSWSC 958

HEARING DATE(S): 12-13 September 2006.

JUDGMENT DATE :
21 September 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Order that the limitation period be extended until 9 February 2000. (2) Costs of the application are to be costs in the cause.

LEGISLATION CITED: Limitation Act, ss 60G, 60I

CASES CITED: Blunden v Commonwealth of Australia [2003] HCA 73
Blyth v Commonwealth of Australia [2005] NSWSC 721
Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541
Commonwealth of Australia v Diston [2003] NSWCA 51
Commonwealth of Australia v Shaw [2006] NSWCA 209
Commonwealth of Australia v Smith [2005] NSWCA 478
CRA Limited v Martignago (1995) 39 NSWLR 13
Harris v Commercial Minerals Limited (1996) 186 CLR 1
Holt v Wynter (2000) 49 NSWLR 128
Telstra Corporation v Rea [2002] NSWCA 49

PARTIES: Maxwell David Irving (Plaintiff)
The Commonwealth of Australia (Defendant)

FILE NUMBER(S): SC 20045/00

COUNSEL: A.G. Melick SC (Plaintiff)
C. Barry QC/D. Brogan (Defendant)

SOLICITORS: Sachs Gerace Lawyers (Plaintiff)
Australian Government Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 21 September 2006
20045/00 MAXWELL DAVID IRVING v

THE COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: By statement of claim filed on 9 February 2000, the plaintiff, Maxwell David Irving, commenced proceedings against the Commonwealth of Australia seeking damages for harm that he claims to have suffered as a consequence of the collision between the "HMAS Melbourne" and the "HMAS Voyager" on 10 February 1964. At the same time he also made application for an extension of time for the bringing of the claim, and it is that extension application in relation to which I am now delivering judgment. I will address the question of delay in the course of these reasons.

2 This application calls for consideration of s 60G and s 60I of the Limitation Act 1969. These sections provide, relevantly:

Compensation to Relatives Act 1897

(2) 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.

60I (1) A court may not make an order under section 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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision."

3 Section 11(1) defines personal injury as including "any disease and any impairment of the physical or mental condition of a person".

4 Whilst s 60G(1) applies the section to a cause of action accruing on or after 1 September 1990, the application of the section was extended by Schedule 5 cl 4 to actions accruing before 1 September 1990, and it applies to the present claim.

5 The plaintiff's application is opposed by the Commonwealth.

6 Section 60G(2) empowers the Court to grant the application "if it decides that it is just and reasonable to do so". However, before the operation of s 60G is enlivened, the Court must be satisfied that the plaintiff has met the requirements of s 60I. This means that the plaintiff must satisfy the Court of these matters:

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

(ii) that he was unaware of the nature or extent of personal injuries suffered; or

(iii) that he was unaware of the connection between the personal injury and the defendant's act or omission

at the expiration of the limitation period or at a time before that expiration when proceedings might reasonably have been instituted

and

and

7 Accordingly, in this case the plaintiff must establish that he first obtained the requisite knowledge within a period of three years preceding the filing of the application on 9 February 2000.

8 The plaintiff has sworn three affidavits in support of his application. The first of these affidavits was sworn on 4 August 2003, the second on 1 March 2006 and the third on 11 September 2006. In addition, there was an affidavit sworn by his present solicitor, Mr David Sachs, on 12 September 2006. On the hearing of this application, the plaintiff was extensively cross examined.

9 The Commonwealth relied upon the affidavit of Ms Donna Robinson sworn on 24 January 2006 and Ms Robinson was also cross examined.

10 In opposing the application, Mr Barry of Queen's Counsel submitted on behalf of the Commonwealth that the plaintiff's claim is too old to permit of a fair trial. Mr Barry submitted that the threshold requirements imposed by s 60I of the Limitation Act were not satisfied and, further, that it would not be just and reasonable to allow this claim to proceed.

11 Before considering those submissions and the competing submissions advanced on behalf of the plaintiff by Mr Melick of Senior Counsel, I will review the evidence introduced at the hearing of this application.

12 The plaintiff was born on 23 June 1944. He joined the Royal Australian Navy as a recruit on 3 July 1961. He joined the crew of the "Melbourne" on 28 December 1963, by which time he had progressed to the rank of Engineering Mechanic 1st Class.

13 The plaintiff gave an account of his experience at the time of and in the hours following the collision between the "Melbourne" and the "Voyager". I do not understand Mr Barry to have challenged the detail of that account, which I accept. The plaintiff said he was lying on his bunk in the upper deck mess when he felt a sudden violent jolt and heard yelling: "We've hit 'Voyager'", or words to that effect. The plaintiff said that his mess was on the port side of the "Melbourne", around about the middle of the ship, and he went some ten to twelve feet through a hatch and stood by the adjacent motor cutter which was still on its davits. He said he was aware that there were planks missing out of that cutter and he told other sailors there that it should not be launched. A sailor senior to himself gave him instructions to remain by the cutter to see that it did not go into the water. The plaintiff said that the collision occurred at 9.56 pm and he obeyed the order he had been given until such time as it was apparent nobody was going to put the cutter in the water. He then took some clothing down to B hangar for the use of survivors in response to a request over the public address system. Then he went on his own midnight shift in the No. 2 boiler room and was on that shift for some four hours. The plaintiff did not see the rescue activities. He had a friend on the "Voyager", "Deepers" Diepenbroek, whose death in consequence of the collision shocked and saddened the plaintiff. He said he felt guilty that he had been unable to save this friend, and any of those who died that night.

14 His evidence described his experience afterwards when he went ashore in Sydney, and the remarks of people who blamed the crew of the "Melbourne" for what had happened. I will not record the detail of the evidence to this effect, but I observe it is evidence of a type not uncommonly introduced in applications such as the present one. The plaintiff said he was stressed and anxious.

15 The plaintiff said that after the collision he began to drink heavily. He found himself in the ship's cells and in police lock-ups. Apart from drinking heavily, he also began to smoke heavily. Ms Robinson's affidavit identifies three annexures as to disciplinary charge sheets and punishment records for offences committed by the plaintiff (see para 47 and tab 15 of the exhibited material identified in that affidavit). The plaintiff said he had no recollection of the three incidents, two of which were after the collision and one of which concerned an offence on 4 May 1964 of returning drunk to the "Melbourne" at 2200 hours.

16 According to the plaintiff, he was frightened when the "Melbourne" left dock whilst he continued to serve on that vessel until mid 1965. Before the collision, the plaintiff said he had enjoyed his service and was a very confident sailor.

17 From the "Melbourne" the plaintiff was transferred to the "Parramatta", on which vessel he was serving when it collided with an uncharted shoal in the Straits of Malacca on 4 November 1966. According to the plaintiff, he was in the cafeteria on that vessel when the collision occurred and this experience put him in mind of the earlier collision on 10 February 1964. He said he was terrified for his life and hastened to the upper deck. He said that after this experience his drinking rapidly worsened.

18 From the "Parramatta" the plaintiff was transferred to the "HMAS Lonsdale" and from there he was posted to America to pre-commission the "HMAS Brisbane", on which he sailed to Australia. Having arrived in Australia, he was stationed at HMAS Cerberus in 1968, and in 1971 he was transferred to "HMAS Swan". In 1973 he was offered Naval shore patrol work but shortly after commencing that work the Naval Police took over, and this prompted the plaintiff to apply for a discharge in November 1973. The plaintiff said that he was not happy with the desk type work that replaced the policing duties, and he was also concerned at the prospect of being posted back to sea.

19 It is to be noted that the plaintiff's total period of Naval service occupied over twelve years, and more than nine of those years were subsequent to the "Melbourne"/"Voyager" disaster. He experienced various promotions. In March 1969 he was made a leading patrolman and he was then made a leading seaman coxswain on 7 March 1970. He progressed to acting petty officer coxswain on 11 August 1971 and to petty officer coxswain on 16 August 1972. He remained in that last position until the date of his discharge from the Navy. His initial period of engagement was a period of nine years. He then reenlisted for a further three years to take advantage of the opportunity of going to America for involvement in the commissioning of the "HMAS Brisbane". He then reenlisted in May 1973 because he enjoyed the shore patrol duties to which he had been posted. Once the opportunity to do that work was lost because of the involvement of the Naval Police, the plaintiff applied for his discharge, and it was granted. In cross examination (T 30), the plaintiff explained his decision to leave the Navy: "It had to do with the fact I didn't wish to go to Cerberus and go back to sea."

20 Having left the Navy, the plaintiff took up a position as a sales representative, work that he did for approximately three months. He then worked as a barman for several months and then as a plant protection officer for eight months. Then he joined the Commonwealth Police and was a police officer for some eleven months. He then became a Customs Officer and remained in that work for a period in excess of four years. Subsequently, he had work as a security guard for some two months and as a plant protection officer for some fourteen months. He then started a business of his own with his wife conducting a motel and at the same time he became a prison officer in Victoria. He was a prison officer from September 1983 until April 1996. Then he performed work as a security officer from June 1996 until December 1998. He then did seasonal work as a process worker between January 1999 and April 2004 and he did work as a traffic controller between December 2002 and August 2005. He also did factory work for a nominated employer from July 1998 until August 2005 and for the last thirteen months he has been a driver employed by the Salvation Army.

21 The details of the employment of the plaintiff are set out in the particulars filed pursuant to Pt 33 r 8A (Exhibit 17). That same document sets out actual earnings where figures are available and otherwise provides a basis upon which the plaintiff's earnings, or the earnings he would have been able to earn in the various employment positions, can be calculated. I observe that in this respect the present case is in marked contrast to an application such as that considered in Blyth v Commonwealth of Australia [2005] NSWSC 721.

22 Notwithstanding the plaintiff's ability to pursue regular employment, it was the plaintiff's evidence that he continued to drink excessively over the years. His first marriage ended in divorce in 1994 and he then remarried, since which time he has enjoyed the support of his current wife.

23 The plaintiff said that from the time of the collision he found social interaction difficult and stressful (see para 23 of his earliest affidavit). He said he has been constantly on edge, irritable and nervous and that this has occasioned difficulty with his family relationships. He has a son and a daughter-in-law who are both in the Navy and he worries about them constantly whilst they are at sea.

24 In his affidavit of 11 September 2006, the plaintiff attributed his excessive drinking to his nerves. He said he drank to control them.

25 By 1999 the plaintiff was suffering from a number of health problems and he applied for a Service related disability pension. In September 1999 he was assessed by Dr Hook, his general practitioner, to support his claim for a Department of Veterans' Affairs pension. He said before that meeting he had never discussed the "Voyager"/"Melbourne" collision, but there was discussion about this on this particular occasion, and he "cracked up crying" (para 28 of his affidavit of 4 August 2003). According to the plaintiff, Dr Hook diagnosed stomach ulcers and gastroesophageal reflux disease, both due to alcohol abuse. The plaintiff was also diagnosed with bronchitis due to smoking addiction, and he was diagnosed as suffering from disabilities referable to his back and his neck, as well as loss of hearing. Dr Hook told the plaintiff that he was suffering from depression and anxiety, but did not explain why.

26 In para 31 of his affidavit of 4 August 2003, the plaintiff deposed:

"In January 2000, I received documents from the Department of Veterans' Affairs in relation to my disability pension claim, including Dr Hook's observations. That was the first time I became aware that I have been suffering from PTSD for these past thirty years. Dr Hook had told me I was suffering from depression and anxiety, and that I had suffered a heart attack around 1997, but I do not believe he mentioned PTSD. I did not previously even know what PTSD was.

27 It was in November 1999 that the plaintiff consulted Mr Taylor after reading a newspaper article on 15 November 1999. Mr Taylor took instructions to act for the plaintiff and the statement of claim was filed promptly in February 2000. According to the plaintiff, it was only when he read the statement of claim that he acquired knowledge of negligent acts or omissions for which the Commonwealth was responsible (para 34 of the affidavit).

28 Mr Taylor arranged for the plaintiff to see Dr Holwill, and that examination took place on 15 December 2000. On the history taken and recorded in Dr Holwill's report, Dr Holwill concluded:

"Mr Irving presents with a history of developing a chronic moderately severe post traumatic stress disorder with associated mild to moderately severe depression and associated severe substance abuse (alcohol). His condition has developed as a result of his experiences serving in the Royal Australian Navy, particularly serving on HMAS Melbourne when it collided with HMAS Voyager, and then subsequently serving on HMAS Parramatta when it struck unchartered rocks. The substance abuse has arisen as a result of the development of the chronic post traumatic stress disorder, and he has used alcohol to suppress intrusive thoughts and nightmares for many years. He now has a problem with severe substance abuse. He is likely to have seriously impaired his general medical health.

I note that he has not had any formal treatment for his conditions.

Mr Irving's psychiatric conditions severely limit his capacity for any employment, and I note his highly fragmented employment record.

Mr Irving has experienced moderate to severe pain and suffering as a result of the development of these conditions over the years, and will continue to do so for the foreseeable future."

29 In a supplementary report dated 22 August 2006 Dr Holwill said this:

"…I have carefully reviewed my clinical notes of 15 December 2000, and my report of that date, regarding Mr Irving. On the basis of that review, I would respond to your specific questions as follows:

1. Mr Irving was unaware of any symptoms until he was serving on HMAS Parramatta, as noted on page 2 of my report. Subsequently he developed severe alcohol abuse, as well as chronic moderately severe Depression. He would have had some awareness of the symptoms, and the fact that he was drinking excessively. However, this is not the same as being aware that he had developed a psychiatric illness.

weakness'

2. The same response as for question 1 would apply.

3. The patient's level of denial to themselves regarding the severity of the problem, their fear of ridicule by others, the prevailing ethos amongst other personnel in the same circumstances.

4. Given what I have outlined above, it is highly unlikely that your client would have agreed to or sought out help. In fact, when he was being interviewed by myself, he became overtly greatly distressed; this caused him not only embarrassment, but also a sense of bewilderment at the depth of his distress."

30 Dr Hook has been the plaintiff's general practitioner since December 1991, at which time the plaintiff first consulted Dr Hook in relation to a condition of epicondylitis (see the report, Exhibit 15). Dr Hook is still the plaintiff's doctor and there was tendered, as Exhibit 16, a summary from records produced under subpoena which records the plaintiff's various medical concerns. These are identified in the summary, Exhibit 16, as problems with the right elbow, the left elbow, the neck, the upper back and heart disease. The plaintiff is also recorded as having hearing loss and there are also complaints recorded consistent with psychological problems. This latter category of complaints includes depression, aggression, disturbed sleep, anxiety and memory impairment. According to the doctor's notes, he took a history that the plaintiff was a heavy drinker until his last heart attack and that he was a very heavy smoker until three and a half years ago. Both these habits were recorded as starting when the plaintiff joined the Navy. Dr Hook has recorded also that the plaintiff

"was on board when the Melbourne and Voyager collided. Will not talk about these events and becomes very depressed if he reads and sees anything relating to this in the media."

31 In Exhibit 14, the medical information form completed by Dr Hook for the pension application, the doctor recorded: "Worsening depression over recent years, also anxiety."

32 According to the plaintiff, Dr Hook was the first doctor he had discussed the "Melbourne"/"Voyager" collision with (T 71), and that that was in 1999. On the evidence before me on this application, I accept that to be so. In the time that Dr Hook had been the plaintiff's general practitioner, the plaintiff said he had been advised by Dr Hook to cut down his drinking but at no time prior to the plaintiff seeing Mr Taylor did Dr Hook tell the plaintiff he should see a psychiatrist or a psychologist (T 77). Considering the evidence before the Court on this application, I accept that to be the position.

33 Mr Barry submitted that there was an inconsistency between the content of Dr Holwill's report and the evidence that the plaintiff gave as to when it was that his drinking habits began. The plaintiff's evidence, both in his affidavit of 4 August 2003 and in his oral evidence, was that his drinking problems began soon after the collision in February 1964. On one reading of the history recorded by Dr Holwill, the plaintiff would seem to have told Dr Holwill that the problems began after the incident in the Straits of Malacca. Dr Holwill's handwritten notes (Exhibit 18) appear to record that the plaintiff was "OK while on Melbourne" but it was after the "Parramatta" collision that he started drinking to excess. The apparent inconsistency between what Dr Holwill has recorded and the plaintiff's evidence before this Court is a matter to be considered when assessing the truthfulness and the reliability of the plaintiff's evidence, but having observed the plaintiff in the witness box where he was subjected to thorough cross examination, I formed a favourable impression of him. He did not appear to me to be evasive and, as far as I can judge, he appeared to answer questions honestly.

34 Ms Robinson dealt in her affidavit with the issue of prejudice, and I shall deal with this question presently when addressing the submissions advanced by Mr Barry.

35 I return now to the threshold provisions of s 60I.

36 Section 60I(1)(a) is concerned with the plaintiff's actual awareness: see Harris v Commercial Minerals Limited (1996) 186 CLR 1 at pp 9-10; CRA Limited v Martignago (1995) 39 NSWLR 13 and in particular the judgment of Clarke JA at 20; and Commonwealth of Australia v Smith [2005] NSWCA 478 and in particular the judgment of Santow JA at [114]-[116].

37 In this case it is the plaintiff's evidence that before September 1999 he had not discussed the collision between the "Melbourne" and the "Voyager" with Dr Hook, and I accept that at that time Dr Hook informed the plaintiff only that he was suffering from depression and anxiety (see paras 28 and 30 of the plaintiff's affidavit of 4 August 2003). I also accept that until the plaintiff received the documents from the Department of Veterans' Affairs in January 2000, as referred to in para 31 of his affidavit, he was not aware that he had been suffering from PTSD for thirty years, as Dr Hook wrote in the "Work Ability Report" provided to the plaintiff by the Department.

38 The effect of the plaintiff's evidence on this application is that he did not know that he had sustained personal injury in 1964 and still less did he know the nature and extent of any such injury. I refer to para 12 of the plaintiff's affidavit of 11 September 2006:

"During the thirty five years or so between 1974 and 1999, when I saw the RSL advocate, David Piggott, I went to the doctor as often as was needed. I suffered from stomach ulcers and gastro oesophaegial reflux. I also had problems with my breathing and worsening bronchitis due to the smoking. I was treated by Dr Hook for many years for those ailments. I never mentioned anything about the Voyager/Melbourne collision. As stated above, it was only much later that I realised that my problems were related to the collision. He treated me from time to time as required. I knew that I had to stop drinking and smoking and eventually I did so. This was on the recommendation of Dr Hook. I never had any idea that I had psychiatric illness and that it was caused by the collision. Therefore I had no idea that I could be treated for that illness."

39 The plaintiff was not challenged in cross examination about the content of the above paragraph.

40 The plaintiff's evidence satisfies me that he did not have the requisite knowledge as to any of the matters arising under s 60I(1)(a). Indeed, I do not understand Mr Barry to have challenged the plaintiff's evidence relevant to s 60I(1)(a) (see as to this the transcript of submissions at T 94).

41 Finding as I do the plaintiff has satisfied the requirements of s 60I(1)(a), I turn to s 60I(1)(b), upon which Mr Barry focussed his submissions when addressing s 60I.

42 I am satisfied that the plaintiff made his application by filing the notice of motion within three years after he became aware of the matters addressed in s 60I(1)(a). That knowledge I find he acquired in the year 2000. However, s 60I(1)(b) is not merely concerned with actual knowledge; it is also concerned with constructive knowledge.

43 Mr Barry submitted that awareness by the plaintiff of the changes in him attracted constructive knowledge of the injury because he ought to have taken appropriate steps to have the source of his problems diagnosed. Had he done so, his mental condition would have been identified closer to the collision time but certainly outside the three year period mentioned in s 60I(1)(b).

44 In considering this application, the Court's attention was directed to recent decisions of the Court of Appeal in Commonwealth of Australia v Smith (supra) and Commonwealth of Australia v Shaw [2006] NSWCA 209. Mr Barry submitted the decision in Smith was erroneous and ought not to be followed. Rather, he submitted the decision in Shaw, being the later decision, is to be followed. Mr Melick's submissions about these two decisions were, of course, to the contrary of those advanced by Mr Barry.

45 The principal judgment in Smith was given by Santow JA, with whose judgment Handley JA agreed, substantially for the reasons given by Santow JA (see the judgment of Handley JA at [8]). Basten JA dissented. In Shaw, the principal judgment was given by Basten JA, and Handley JA and Ipp JA concurred with Basten JA.

46 Both Smith and Shaw were members of the crew of the "Melbourne" and each sought an extension of time to sue the Commonwealth for a mental disorder allegedly arising from the collision between the "Melbourne" and the "Voyager". In Smith, the application for an extension of time was granted at first instance, and the appeal by the Commonwealth was dismissed. In Shaw, an extension of time was granted at first instance but the appeal was upheld. There was reference in the latter case to Smith but there was no criticism of the earlier judgment when Shaw was decided. It does not follow from the difference in outcome of the two appeals that the decisions are irreconcilable when, plainly, each case fell to be determined having regard to its own particular facts. So, too, does the case with which I am presently concerned, although I must, of course, have regard to the statements of principle to be drawn from Smith and from Shaw.

47 In Smith, Santow JA said (at [102]-[109]:

Martignago

means of knowledge

at his disposal

Telstra Corporation v Rea

Spadotto & Co Pty Ltd (in liq) v Raber

Smith v Central Asbestos Co

Do Carmo v Ford Excavations Pty Ltd

"In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience."

In the result, I am of the view that the words "or ought to have become aware" in subs60I(1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed. The question for the learned primary judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the documents.'

capacity

a marked reluctance to discuss his feelings and behaviours

'has been reluctant to acknowledge the existence of his various psychological symptoms and, as he himself states, he prefers to try and suppress them and ignore them. This is part of an overall pattern of avoidance behaviour that appears to have characterized his psychological functioning since the 1964 collision. As a result, he would have great difficulty in understanding the emotional consequences of the collision and relating them to the collision itself… Thus it is most unlikely that he would have achieved an adequate understanding of his difficulties for him to be able to take legal action, until quite recently.' [Vol 1, page 305]

Commonwealth v Nelson

by taking the simple step of enquiring of those treating him what his problems were

ought to have become aware

Do Carmo v Ford Excavations

without fault on his part

Limitation Act

a reasonable man, knowing those facts and having taken the appropriate advice on those facts

material facts of a decisive character relating to the cause of action

ought

any impairment of [his] mental condition

48 In Shaw, Basten JA said, as to s 60I(1)(b) (at [31]and [32]):

Telstra Corporation Ltd v Rea

Central Asbestos Co Ltd v Dodd

for him

Commonwealth of Australia v Smith

32 Use of the label 'constructive knowledge' must be undertaken with care, so as not to fall into patterns of thought relating to a 'reasonable person’ test. Further, there is a risk that the label may distract attention from the purpose of the judgment being formed. Indeed, even to ask what steps it was 'reasonable' for the plaintiff to take provides little guidance as to the criteria by which the judgment is to be made. Those criteria will vary, depending on the particular facet of knowledge, identified in par (a), of which it is said that the plaintiff ought to have become aware, at a date more than three years prior to the commencement of the proceedings. Only when the relevant fact has been identified, is it possible to consider what steps might have been taken in order to acquire knowledge of that fact. Once the possible steps have been identified, consideration may need to be given as to the likelihood that such steps, if taken, would have resulted in the plaintiff acquiring knowledge of the particular fact. Finally, it may be necessary to distinguish the purpose of the inquiry from the purpose for which the step might have been taken. In relation to a step involving a consultation with a medical practitioner, the purpose of the consultation would usually be to obtain appropriate medical treatment. Whether such treatment was obtained or not may have legal consequences, for example in relation to mitigation of loss. However, for present purposes the legal consequence will be acquisition of relevant knowledge, being a result somewhat removed from the usual purpose of obtaining medical treatment."

49 Later, Basten JA went on to say (at [73]):

Melbourne

Voyager

50 His Honour went on to determine that the plaintiff in Shaw ought to have sought medical advice at an earlier stage, and concluded had he done so that it was likely that the plaintiff would have become aware of the nature and extent of his illness "and its connection with the collision at sea" ([74]).

51 I have considered the decisions in Smith and in Shaw closely. I do not accept that the decisions are not to be reconciled and the different outcomes in these two appeals is explicable on the facts. My task is to determine the present application on its particular facts having regard to the statements of legal principle expressed by Santow JA in Smith and by Basten JA in Shaw.

52 In theory, of course, the plaintiff could have consulted a medical practitioner much closer to the event, to seek help in terms of a diagnosis and treatment for those symptoms referable to his mental disorder as eventually diagnosed by Dr Hook and by Dr Holwill. However, what the plaintiff "ought to have known" must take due account of the actual qualities of the plaintiff, not a hypothetical reasonable man: see Telstra Corporation v Rea [2002] NSWCA 49; Smith (supra) per Santow JA (at [103]); and Shaw (supra) per Basten JA (at [31]). The qualities of the plaintiff involve consideration of the disorder allegedly referable to the collision.

53 A frank physical injury such as a fractured limb would cry out for an approach to a medical practitioner for diagnosis and treatment, but the condition diagnosed in this case is of a very different character, and I bear in mind what Dr Holwill said in his letter of 22 August 2006, to which I made earlier reference. The plaintiff would have had awareness of his symptoms, and that he was drinking and smoking too much, but I accept from his evidence that he was not aware that this manifested an illness. Dr Holwill has opined that it is typical for patients suffering from the disorder now diagnosed in the plaintiff that they view their symptoms

'weakness'

54 I accept for the purposes of this application the plaintiff's presentation at the consultation with Dr Holwill, as described in Dr Holwill's report of 15 December 2000:

"As the interview progressed, he became increasingly distressed, and eventually the interview had to be halted for a time when he developed an uncontrollable bout of crying. He was extremely embarrassed by this and told me he had never discussed these issues in any detail with anyone in the past. He was bewildered and stunned by the depth of his emotional reaction when relating this history."

55 Further, I accept as evidence of the fact for present purposes, the following matter of history recorded by Dr Holwill:

"He is highly avoidant of discussing any of these matters with anyone, including his current wife, and is avoidant of reminders of the collision. He has a prominent startle response and is hyper vigilant. As noted above, he continues to drink heavily."

56 The plaintiff consulted Dr Hook for a variety of medical problems from 1991 onwards (see [30] above), and Dr Hook had advised him to cut down his drinking, advice eventually heeded, but Dr Hook did not express a diagnosis of mental disorder, nor did he advise that the plaintiff should see a psychiatrist or a psychologist (see [32] above).

57 In Shaw, there was telling cross examination of the plaintiff, recorded at [50]-[51] of the judgment of Basten JA. In that case the plaintiff agreed in cross examination:

(i) that he had come to the realisation in the 1970s that he had psychological problems;

(ii) that his appreciation was that two wives had left him because they did not think he was well;

(iii) that he sought no medical help because had he done so the doctor would have told him to stop drinking;

58 Basten JA considered the significance of that cross examination and in the course of doing so said (at [62]-[63]):

"…failure to talk about the traumatic event may be either a symptom or a result of post-traumatic stress disorder. The policy underlying paragraph (b) would not be furthered by the exclusion of plaintiffs on the ground that they have not taken relevant steps in their own self-interest, where the injury itself may be a significant cause of the failure to take such steps.

63 Nevertheless, it is necessary to draw a distinction between such a factor and a more general reluctance to seek medical advice, either because the person would prefer to turn a blind eye to the possibility of illness or because of a fear that the treatment will be worse than the illness."

59 I do not find in the present case that the plaintiff has deliberately turned "a blind eye" to the possibility of illness or that he was motivated to avoid treatment because of perceived disadvantages if treatment was undertaken. This is an important point of distinction in the present case from the position in Shaw.

60 I consider it likely that the nature of the disorder as now diagnosed of itself affords an explanation for the plaintiff not seeking medical help for his symptoms before their cause was ultimately diagnosed.

61 I find in the particular circumstances of the present case, that the plaintiff has satisfied the requirements of s 60I(1)(b) of the Limitation Act. I do not find that he ought to have become aware of the matters specified in s 60I(1)(a) before he did, and I am satisfied that the plaintiff commenced the application within the requisite statutory period. The threshold requirements of s 60I having been satisfied by the plaintiff, I turn to consider whether it is just and reasonable to order that the limitation period be extended.

62 In approaching this task, I remind myself that it is well settled that it is for the plaintiff to discharge the onus of showing that the discretion should be exercised in his favour: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541; Holt v Wynter (2000) 49 NSWLR 128; Commonwealth of Australia v Diston [2003] NSWCA 51; and Commonwealth of Australia v Shaw (supra) at [78].

63 Since the events giving rise to this claim occurred so long ago, there is presumptive prejudice to the defendant but that of itself does not necessarily mean that this application must be refused. In Brisbane South Dawson J said at 544:

"The section [and in this case referring to the Queensland Limitation of Actions Act] confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."

64 McHugh J said in Brisbane South (at 555):

"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's actions. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or real possibility of significant prejudice."

65 In Smith (supra), Santow JA said, in relation to the notion of significant prejudice (at [128]):

Significant prejudice

South Western Sydney Area Health Service v Gabriel

Limitation Act

'the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.' "

66 His Honour then added (at [129]):

Holt v Wynter

McLean v Sydney Water Corp

Gabriel

Parsons v Doukas

Motor Accidents Act

67 Mr Barry submitted that one reason why this application should be refused is the delay in the prosecution of the application.

68 The notice of motion was filed promptly with the statement of claim. Indeed, it was filed before Dr Holwill had made his assessment of the plaintiff. However, the application was not ready to take a hearing date before such date was appointed on 10 March 2006, six years after the application was filed.

69 Generally, where a party is seeking the exercise of the Court's discretion in favour of that party, the application for such relief should be pursued with due expedition. Not only does the failure to do so expose the opponent to the risk of further prejudice by reason of the added delay, but delay itself is a matter to be given due weight when the Court comes to consider how its discretion should be exercised.

70 When the plaintiff was asked in cross examination about the delay in this matter, he was unable to offer any explanation for it (T 64). From the plaintiff's point of view, the matter has been in the hands of his solicitors since they were first instructed, but it does not follow from this that delay cannot be taken into account against him on the application.

71 Having been served with the statement of claim filed on 9 February 2000, the defendant's solicitors did not file a defence but sought particulars in a letter dated 25 January 2001. The request seeking particulars was a very demanding one, containing requests in 211 numbered paragraphs. On 8 August 2001 the plaintiff's solicitors wrote to the defendant's solicitors pointing out that no defence had been filed and requiring that this be done within seven days. That prompted a response from the defendant's solicitors referring to the outstanding particulars, and it was asserted a defence could not be filed until those particulars had been supplied.

72 Prior to that exchange however, the defendant's solicitor had written to the plaintiff's solicitor on 13 June 2001 informing that the Commonwealth had, on 5 December 2000, filed an application for special leave to appeal to the High Court of Australia in relation to a claim being pursued in the Australian Capital Territory in Blunden v The Commonwealth. Depending upon the outcome of that application, it was contemplated that the Commonwealth may wish to plead that the limitation legislation of the Australian Capital Territory applied in proceedings in New South Wales. In cross examination in the application before this Court, Ms Robinson acknowledged that in matters in which the plaintiffs had not been granted extensions of time in this court, there was delay whilst the High Court decision in Blunden was awaited. Plainly, it was in no litigant's interests that an application be pursued for an extension of the Limitation Act governing proceedings in New South Wales if the High Court subsequently determined that the New South Wales Limitation Act did not apply, and that the relevant limitation legislation for proceedings in this State was the legislation of the Australian Capital Territory.

73 The High Court decision on a case stated was delivered on 10 December 2003: Blunden v Commonwealth of Australia [2003] HCA 73. At that time the particulars requested by the Commonwealth in the present case were still unanswered and the Commonwealth's defence was still not filed. This Court was informed that the plaintiff's solicitors were in dispute with the defendant's solicitor on the nature and extent of the particulars sought in the present case and other cases. Hislop J, who had assumed management of the many pending cases in this court arising out of the "Melbourne"/"Voyager" collision, was approached about the dispute and, whilst there was no formal application placed before his Honour, Mr Melick informed the Court that the issue was finally resolved in February 2005, and the plaintiff's solicitors then set about providing particulars outstanding in some twenty cases, one being the present case.

74 The plaintiff's principal affidavit had been filed on 4 August 2003 and that filing had prompted a modification of the request for particulars to incorporate a request directed at the substance of the affidavit. There were a number of directions hearings, the last of which before the particulars were furnished and took place on 22 July 2005. At that time the registrar ordered that the plaintiff furnish the outstanding particulars by 22 August 2005.

75 Although the particulars were furnished on 29 August 2005, a defence was still not filed until 8 August 2006. No Limitation Act defence was pleaded. However, an amended defence was filed on 12 September 2006, on the hearing of the application. In that amended pleading, the Limitation Act defence was pleaded.

76 In the circumstances I have reviewed, I do not conclude that the delay in bringing this application on for hearing ought of itself defeat the plaintiff's claim. However, any prejudice associated with the further lapse of time since February 2000 must be brought into account.

77 Mr Barry submitted that it was necessary for the plaintiff to prove that he had an arguable case should the application be granted. I accept that submission. Moreover, if a case is weak, that is a factor to be weighed against the grant of an extension of time: see Shaw (supra) per Basten JA at [83].

78 There are features of the case which are to be considered in connection with this submission:

(i) the plaintiff continued in the Navy for nine years after the collision, and he appears to have discharged his duties without coming under adverse notice, other than on the two occasions previously mentioned ([15] above);

(ii) during those nine years he was promoted, serving in responsible positions;

(iii) in the balance of his service after February 1964 he underwent medical examinations by Naval doctors, and the plaintiff was cross examined concerning the records relating to six such examinations. Whilst he had no recollection of the examinations, those records disclose no abnormality of mental function (see Exhibits 5, 6, 7, 8. 9 and 10);

"1. POCOXN has requested a free discharge.

2. He initially joined the Service in 1961 and recently re-engaged for a further 3-year period. In the 12 years he has been in the Service, by all reports the standard of his performance has been more than adequate.

3. He impresses as a well-adjusted individual with good bearing.

4. The primary impetus for his request stems from disenchantment with his present desk-bound duties. Immediately prior to re-engagement, he was under the impression that he would continue his patrol duties at H.M.A.S. LONSDALE. This function was taken over by the Naval Police. Since coming to H.M.A.S. CERBERUS, because of the 'continuing encroachment of the Naval Police' the type of duties the sailor performs, have changed in nature. He finds himself temperamentally unsuited to desk-bound duties and considers that his work effectiveness will drop with the reduction in job satisfaction.

SUMMARY AND RECOMMENDATION:

(v) when the plaintiff entered the Commonwealth Police Force he was required to undergo a medial examination and the defendant has available to it the medical officer's report which records, inter alia, that there was no history suggestive of mental or nervous trouble, or any anxiety state (see Exhibit 12);

(vi) when the plaintiff applied for his position as a customs officer he completed a written application dated 5 January 1976 (see Exhibit 11). That expressed what prompted him to leave the Navy and there was no reference to any mental disorder or fear of the sea in that application form;

(vii) Exhibit 13 is a termination of employment form which the plaintiff and his foreman signed relating to the plaintiff's resignation from his post as plant protection officer with Nissan Motors in March 1983. The report records a favourable assessment of the applicant as an employee;

(viii) the plaintiff's work history generally is a good one such as would raise the issue as to whether that history is consistent with a persisting mental disorder accompanied by alcohol abuse;

(ix) the first medical evidence that supports the plaintiff's claim originates following the plaintiff's consultation with Dr Hook in September 1999 and the specialist assessment by Dr Holwill was not made until December 2000;

(x) there is the inconsistency to be explored between the history which Dr Holwill's notes suggest the plaintiff gave and his evidence in this Court concerning the issue as to whether the alcohol abuse began immediately after the "Melbourne"/"Voyager" collision or after the episode in the Straits of Malacca;

79 With the above matters in mind, I do not assess the plaintiff's case as a powerful one either as to injury or causation, but I must have regard to my assessment of the plaintiff's credibility, and he does have the support of a specialist psychiatrist and, seemingly, of his general practitioner. Moreover, it seems to me that the defendant is in a position to address the various matters I have raised if this case is permitted to proceed.

80 Mr Barry next submitted that this was a case in which the defendant would be significantly prejudiced in the relevant sense if the application was successful, and Mr Barry's submissions and Ms Robinson's affidavit identify a number of matters to be considered on the issue of prejudice:

(i) Mr Barry submitted that there was an absence of records available to the Commonwealth to address the assertion that there was a change in temperament after the collision in February 2004 and the development of alcohol abuse.

There are records of the Naval medical examinations, to which I referred earlier, and, importantly, there is the report from the Naval psychologist. As I see it, these are records are capable of being put to effective use if the matter proceeds to trial. Moreover, the defendant has the plaintiff's service record, as earlier considered.

The plaintiff acknowledged in cross examination that he did not tell anybody about his not wanting to go back to sea (T 48). Exhibit 2 records his reasons as given for applying for his discharge, and it does not seem to me in the circumstances of this case that the defendant would be disadvantaged by the lack of records to which Ms Robinson has directed her attention in para 23 of her affidavit.

(ii) Mr Barry submitted that the defendant was prejudiced by a lack of witnesses to meet the plaintiff's assertion of his changed drinking habits after the collision in February 1964. In this respect, Mr Barry relied upon the plaintiff's evidence in cross examination that he was unable to identify anybody that he used to drink with before the collision but who might be able to give evidence of any change after the collision (T 18). The plaintiff had only been on the "Melbourne" for six weeks before the collision, so the response in cross examination was understandable. However, the plaintiff nominated a brother, five years older than himself, who he used to see when he was on leave from the Navy, and he said they would have a beer together whilst he was on leave (T 78). That brother is alive. Ms Robinson has referred to the disciplinary charge sheet and punishment records concerning the plaintiff. Those records earlier mentioned appear at tab 15 to the exhibit to Ms Robinson's affidavit. There are only the three matters. The first of these was a charge of being "slack in turning out at 0640 hours on 16 January 1964". The second matter was a charge of being absent from his place of duty at 1715 hours on 20 April 1964. The third matter was a charge of being drunk when returning on board on 4 May 1964, and this charge I referred to earlier. There are various witnesses mentioned on the charge sheets, and Ms Robinson has deposed to the unavailability of those persons, some of whom are deceased and some of whom have claims pending against the Commonwealth. However, it does not seem to me that any of those charges would loom large in this case. The fact is that over his period of Naval service, the plaintiff only faced one charge involving drunkenness.

Having regard to the evidence given by the plaintiff on this application, in particular to the psychological appraisal on 16 October 1973, I do not consider that the defendant would be significantly disadvantaged by the absence of those former serving officers referred to in Ms Robinson's affidavit who are now deceased.

(iv) In her affidavit, Ms Robinson has addressed the absence of medical records after the plaintiff left the Navy. However, the Pt 33 particulars identify many doctors who have treated the plaintiff as his general practitioner since 1985. They include Dr Hook, the plaintiff's current general practitioner who has cared for the plaintiff at least since 1991. In para 61 of her affidavit, Ms Robinson has identified those doctors who have produced records covering the period since 1985.

It is no part of the plaintiff's case that he sought any treatment for the symptoms of post traumatic stress disorder prior to seeing Dr Hook in September 1999 for the purposes of the pension application. The plaintiff was cross examined about a sick leave certificate issued by Dr O'Brien in August 1993. The plaintiff could not recall the circumstances in which that certificate (Exhibit 4) was issued. He thought it may have related to anxiety referable to the breakdown of his first marriage (T 41-42).

In my assessment of the issues on this particular application, there is adequate opportunity to address the plaintiff's relevant medical history.

81 I have given close attention to the evidence on this application and to the submissions of counsel. I have come to the conclusion that a fair trial can be held between the parties and that a decision to grant the extension which the plaintiff seeks would not result in significant prejudice to the defendant in the relevant sense. Further, I have concluded that it is just and reasonable to extend the limitation period in this case.

82 I consider that costs of the application should be costs in the cause.

Formal orders

83 1. Order that the limitation period be extended until 9 February 2000.

**********

Actions

Download as PDF Download as Word Document

Citations

Irving v The Commonwealth of Australia [2006] NSWSC 958

Most Recent Citation

Kaye v Hoffman (No 2) [2008] TASSC 2

Cases Citing This Decision

2

Williams v Commonwealth of Australia [2007] NSWSC 679

Kaye v Hoffman (No 2) [2008] TASSC 2

Cases Cited

10

Statutory Material Cited

1

Blyth v Commonwealth [2005] NSWSC 721

Commonwealth of Australia v Smith [2005] NSWCA 478

Harris v Commercial Minerals Ltd [1996] HCA 49

CITATION:	Irving v The Commonwealth of Australia [2006] NSWSC 958
HEARING DATE(S):	12-13 September 2006.
JUDGMENT DATE :	21 September 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	(1) Order that the limitation period be extended until 9 February 2000. (2) Costs of the application are to be costs in the cause.
LEGISLATION CITED:	Limitation Act, ss 60G, 60I
CASES CITED:	Blunden v Commonwealth of Australia [2003] HCA 73 Blyth v Commonwealth of Australia [2005] NSWSC 721 Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 Commonwealth of Australia v Diston [2003] NSWCA 51 Commonwealth of Australia v Shaw [2006] NSWCA 209 Commonwealth of Australia v Smith [2005] NSWCA 478 CRA Limited v Martignago (1995) 39 NSWLR 13 Harris v Commercial Minerals Limited (1996) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128 Telstra Corporation v Rea [2002] NSWCA 49
PARTIES:	Maxwell David Irving (Plaintiff) The Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 20045/00
COUNSEL:	A.G. Melick SC (Plaintiff) C. Barry QC/D. Brogan (Defendant)
SOLICITORS:	Sachs Gerace Lawyers (Plaintiff) Australian Government Solicitor (Defendant)