Moore, A.D. v Commonwealth of Australia

[1993] FCA 1009

1009, 93

JUDGMENT NO. ........ ........ .. .m.e.aw

CATCHWORDS

LIMITATION OF ACTIONS - application to extend time for bringing of action - s 606 Limitation Act 1969 (NSW) - latent injury - whether "just and reasonable" to extend time - possible prejudice to respondent - whether real indication of a claim.

Limitation Act 1969 (NSW) - s 58, s 60F, s 606, Sch 5, cl 4

1930 (Cth)

Briaas v James Hardie & CO Ptv Ltd (1989) 16 NSWLR 549

- W v Shirt (1980) 146 CLR 40

Malonev v Commissioner (1978) 18 ALR 147

ALLAN DAVID MOORE v COMMONWEALTH OF AUSTRALIA

NG 551 of 1991

SYDNEY

FOSTER J

24 AUGUST 1993

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 551 of 1991

1

GENERAL DIVISION 1

BETWEEN:  ALLAN DAVID MOORE

Applicant

m: COMMONWEALTH OF AUSTRALIA

Respondent

C O M :	FOSTER J
DATE :	24 AUGUST 1993
PLACE :	SYDNEY

REASONS FOR JUDGMENT

-	(Extempore)
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HIS HONOUR: This is an application brought pursuant to the provisions of Part 3 Division 3 Subdivision 3 of the Limitation Act 1969 (NSW). The application is made pursuant to the provisions of s 60G(2) as extended in its operation by

the provisions of Schedule 5 , clause 4. In so far as it may	be that the provisions of s 60F are also relevant to the
determination of this application, I am content to indicate that there is no doubt from the material placed before me that the injury in respect of which the applicant brings these proceedings is a latent injury as defined, at least inferentially, in the provisions of that section.
The only question for determination in the circumstances is whether the applicant satisfies me that it is within the meaning of s 60G(2) "just and reasonable" that the Court should order that the limitation period otherwise applicable to the proceedings he seeks to bring be extended for a period sufficient to enable him to bring those proceedings.
The action is sought to be brought in respect of events which happened as long ago as 1953. It therefore goes without saying that there has been a very considerable delay in the bringing of the action. It is incumbent upon the applicant to explain this delay. I am, however, quite satisfied that it has been sufficiently explained, firstly by the latent nature of the disease in respect of which he seeks to bring the action, and also by the difficulty occasioned for him in ascertaining any possible causal connection between the onset of the disease and the events of 1953. This difficulty was partially relieved by the inquiry conducted by the Royal
of difficulty, almost to the point of impossibility, in his Commission into British Nuclear Tests in Australia. Until that inquiry, I am satisfied that there was a very high degree ascertaining material upon which he could bring an action.
Clearly, also there is considerable financial difficulty in the way of the applicant bringing even these present proceedings. It is clear that he is dependent in launching this application and certainly in any subsequent proceedings upon the obtaining of assistance from the legal aid authorities. This assistance has not, as I understand it, hitherto been forthcoming and this in itself provides considerable reason for delay in bringing the action.
Furthermore, it appears that no significant prejudice is occasioned to the respondent, the Commonwealth of Australia, as a result of the delay. These proceedings do not so far as the Commonwealth is concerned, come out of nowhere. The Royal Commission itself would undoubtedly have produced a situation whereby the possibility of claims such as this could have been envisaged. Furthermore, this applicant's claim has been investigated to the extent that a claim was made by the applicant under the provisions of the Commonwealth Em~loveeS'
ComDensation Act 1930 (Cth). It appears from material placed before me by the Commonwealth that his claim was considered in detail, that is, the circumstances said to give rise to the injury and also the connection of the injury with those circumstances. After consideration of those matters the claim
was in fact rejected. The main attack that has been made upon the claim is not in the area of delay or possible prejudice occasioned by
that delay. It is an attack on the basis that the material adduced in support of the application shows that the claim itself is so insubstantial as to render it not just and reasonable for an extension of time to be granted for the purpose of its prosecution.
The test which is comprehended in the phrase "just and reasonable" is obviously a very wide test and gives to the Court a significantly broad discretion in determining whether or not an extension of time should be granted in any particular case.
Obviously it would not be just and reasonable to expose a respondent to a claim already statute barred for a considerable period of time when the claim is so lacking in substance that to allow it to be brought would amount simply to unwarranted harassment of the respondent. Conversely, the fact that an applicant is not able to demonstrate immediately an ability to prove a cause of action which he wishes to prosecute would not, in my opinion, debar him from obtaining an ext-sion of time.
In this regard, the requirements of the just and reasonable test are not as stringent as those set out in s 58(2) of the Limitation Act 1969. It is clear to me that
broader considerations apply when the claim is brought under Subdivision 3. It may be noted, however, that even in regard
to claims brought under s 58, views expressed in the Supreme Court of New South Wales Court of Appeal in the case of Briaas v James Hardie & CO Ptv Ltd (1989) 16 NSWLR 549, particularly at 564, indicate that a fairly liberal approach can be adopted in appropriate cases where reliance is placed upon that section.
There must, however, be some real indication of substance in the claim to be found in the material adduced in support of an application for extension of time. Clearly that material must not be all shadow and surmise. The case sought to be brought by the present applicant is based on negligence, and that is, of course, a breach of a duty of care owed by the respondent to the applicant, resulting in damage to the applicant. The applicant was a national service trainee serving with the Royal Australian Navy at the time in question. There can be no dispute in those circumstances that a duty of care in general terms was owed to him by the respondent.
The question for determination here is whether there is sufficient . indication of a breach resulting in damage to warrant it being just and reasonable to extend the time for the bringing of the action. It is helpful to consider in this regard what was said on the general topic of breach of a duty of care in the well known passage from the judgment of
Mason J, as he then was, in Wvona Shire Council v Shirt (1980) 146 CLR 40 at 47-48. His Honour said: "In deciding whether there has been a breach of the

duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

The considerations to which I have referred indicate that a risk of injury which is remote, in the sense that it is extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable, but as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

Attention must also be given to the important passage frequently cited from the judgment of Barwick CJ in Malonev v commissioner for Railwavs (1978) 18 ALR 147 at 148 where his Honour said:

upon the word 'reasonable' in the statement of the

"It is easy to overlook the all important emphasis

duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably be done."

With these considerations in mind I turn to the material in the case. In his affidavit the applicant establishes that he was transferred to HMAS "Fremantle " after commencing national service in 1953. That vessel was directed to the Monte Bello Islands in order to take scientists to those islands to investigate the after-effects of the Hurricane atomic explosion in 1952, which explosion was, of course, part of the British nuclear testing program. He indicates that he received no training or lectures dealing with the effects of radiation and the requirements of any protection against it.

On arrival at the Monte Bello Islands he was issued with rubber boots, a plastic coat and plastic pants. He was also, says, possibly issued with a hat. These garments were obviously issued to him for the purpose of him going ashore where he was to carry out orders to collect small wildlife on the island obviously for the purpose of an examination being made of them to determine matters of

scientific importance. It is clear that the appearance of the island was	indicative of it having suffered the effects of a bomb blast.
Certainly I do not have before me any precise evidence to this effect, although quite clearly the Commonwealth would have full details relating to that. However, the applicant says that he saw a lot of twisted metal on the island which he came upon because of his curiosity to see what effect the bomb had had. He also recalls that the terrain was flattened and that vegetation was just starting to come through.
It appears that the explosion had occurred some 12 months before. On this occasion when he was first on the island fulfilling his duties, he was present for approximately five to six hours. On return to the ship he was examined by the use of a Geiger counter. He was required to have a shower, he was then re-examined and he says that he recalls having a shower once or twice again until the Geiger counter reached a certain level. He was not aware of what that level was. It is not difficult to infer, however, having regard to the fact that he was merely following orders, that those who were applying this measuring instrument to his body were doing so having regard to some necessary data on appropriate levels of radioactivity and involving, of course, questions of what levels were or were not dangerous.
He also says that his belief was that his clothing would, it is not difficult to infer, not have been destroyed even of the fairly unelaborate nature of that provided to him, that he had worn to the island was then destroyed. Clothing,
unless there was some good reason for that happening. In the absence of any evidence to the contrary, it is not difficult to infer it was destroyed because it showed an unacceptable level of radioactivity.
The next day, he says, he went ashore with the recruits, it being a day off. It is not to be presumed in the absence of evidence to the contrary that he merely jumped ship and went ashore. He was obviously permitted to go ashore. He did so without the provision of any protective clothing. He says he was not told of any dangers of radiation and received no instructions as to any areas on the island to which he should not have recourse.
He went swimming, he looked for turtles along the foreshore and he generally examined the island. At the end of that sojourn ashore he returned to the ship and there was a repeat of the examination with a Geiger counter and the requirement of showering. He says this procedure was repeated once orstwice. He returned to the island the next day, again obviously with permission, and spent some three or four hours swimming and exploring the island. He was given no instructions about any danger from radioactivity, although on his return the showering and checking procedures were
repeated. Apart from that evidence there is evidence of a general kind from an expert, Professor Falk. That evidence is
of a very general kind but it simply refers to there being dangerous levels of radioactivity consequent upon the testing of the bombs in the relevant area. It is put with considerable force and lucidity by Mr McCarthy of Queen's Counsel for the Commonwealth that the evidence is very sparse indeed to indicate any level of breach of the duty of care on the part of the Commonwealth, but I have regard to the obvious situation demonstrated by the evidence that the question of radioactivity in the island visited by the ship was under consideration and that some steps were taken to measure the level of radioactivity to which the applicant's body had been exposed.
There is evidence that he was permitted to go ashore with protective clothing, or certainly what appears prima facie to have been clothing provided as protective clothing by the Navy, and that that clothing having been subjected to the situation on the island was in fact taken from him and destroyed. There is evidence that he was required to submit to cleaning procedures which were certainly out of the ordinary after each of his visits to the island. There is evidence of a failure to give any precise warning and there is evidence that after the first occasion he was not reissued with any protective clothing despite the fact that it had been
found necessary apparently to remove and dispose of the first items of clothing that had been given to him.
It is perfectly true that there is no evidence before me of any precise levels of radiation obtaining on the occasion of this visit in the vlcinity of the island or the parts of the island that he visited, or indeed over the island group in general. One would expect that that information would certainly be within the possession of the relevant authorities. It is clear from material placed before me that regard was had to records of one kind or another when the applicant's claim was dismissed by the delegate of the Commission who was considering whether it was appropriate that he be awarded compensation under the Commonwealth Act. Indeed, that report contains a finding to the effect that there was no indication of the existence of records as to individual radiation exposure of the applicant. There would therefore seem to be an issue of fact as to whether readings were taken of the level of radioactivity emanating from his body after he went on to the island or as to whether, if such readings were taken, any records were maintained of that. In any event, no records were available to the delegate considering his claim for compensation.

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There is also reference in the report tendered by the Commonwealth to the effect that:

"There is no mention in the report of proceedings whether [you] were a member of any of the parties which went ashore."

The applicant's evidence is quite clear to the

effect that he was a member of such a party, so there would
appear to be some issue of fact as to that.

I consider there is sufficient indication here of a claim of a breach of a duty of care to warrant, so far as that is concerned, the extension of time.

The next major attack is on the question of the demonstration or otherwise of any sufficient indication of causal connection between the cancer of which the applicant complains and which is clearly a very serious injury, and the events of 1953. It has been put to me with considerable force that the opinion of the applicant's treating surgeon is such as to indicate that a causal connection cannot be raised beyond the level of mere possibility into the level of probability. That is, of course, true and is undoubtedly a significant problem in the applicant's way.

However, there is evidence put forward by a specialist, not the treating specialist but a highly qualified specialist, to the effect that the type of injury from which he suffers could be radiation-caused. It is not the task of the Court in an application of this kind to enter upon any evaluation of conflicting evidence, particularly of conflicting expert evidence. In my view it is sufficient that there is sufficient indication that there is a justiciable

cancer by exposure to radiation.	issue as to the question of causation of the applicant's
The case is not one that is so clearly without merit or prospect of success that it would be inappropriate to regard it as being one where the Court should find it just and reasonable to extend the time for bringing it. In these circumstances and for the reasons I have given, I have decided that it is appropriate to extend time to enable this action to
be brought. I will make an order to that effect when I am provided with short minutes of the precise order that is sought.

I will reserve costs.

I certify that this and the preceding

twelve (12) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate:

Date :	24 AUGUST 1993
A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:  MS C.C. SIMPSON QC

INSTRUCTED BY:  MAURICE MAY & CO

COUNSEL FOR THE RESPONDENT:  MR J. McCARTHY QC

with MR M. JOSEPH

INSTRUCTED BY:	AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING:	24 AUGUST 1993
DATE OF JUDGMENT:	24 AUGUST 1993