Mundraby v Commonwealth of Australia

[1999] FCA 1293

FEDERAL COURT OF AUSTRALIA

Mundraby v Commonwealth of Australia [1999] FCA 1293

PRACTICE and PROCEDURE – application for extension of time under Limitations Act 1969 (NSW) (“the Act”) to commence proceedings in contract and tort against the Commonwealth following exposure to poisonous gas on HMAS “Stalwart” – whether s 60I(1)(a) of the Act is a subjective or objective test – whether plaintiff unaware of nature and extent of personal injury suffered at expiration of limitation period – particular difficulties where psychological disability – whether application made within 3 years after plaintiff became so aware – whether defendant would suffer any hardship or prejudice should the extension of time be granted – whether extension unjust or unreasonable where there is said to be relatively minor injury suffered

JURISDICTION – jurisdiction arises because the Commonwealth is a party – the Limitation Act 1969 (NSW) applies by reason of ss 79 and 80 of the Judiciary Act 1901 (Cth)

Limitation Act 1969 (NSW) ss 60G and 60I
Judiciary Act 1901 (Cth) ss 79 and 80

Dedousis v Water Board (1994) 181 CLR 171, followed
Harris v Commercial Minerals Ltd (1996) 186 CLR 1, applied
Commonwealth of Australia v Dinnison (1995) 56 FCR 389, followed
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied

ELLIS MUNDRABY v COMMONWEALTH OF AUSTRALIA
NG 808 OF 1998

TAMBERLIN J

SYDNEY
15 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 808 OF 1998

BETWEEN:	ELLIS MUNDRABY APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The limitation period is extended to 6 August 1998.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 808 OF 1998

BETWEEN:	ELLIS MUNDRABY APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Mr Mundraby (“the applicant”) seeks an extension of time under the Limitation Act 1969 (NSW) (“the Act”) to commence proceedings against the Commonwealth in contract and tort. His claims arise out of an exposure to poisonous gas and vapours on 22 and 23 October 1985 whilst at sea aboard HMAS “Stalwart” en route to Surabaya from Sydney. At that time Mr Mundraby was engaged as a seaman in the Royal Australian Navy.

2. A writ was issued in the High Court on 5 August 1998. On 6 August, Kirby J made an order remitting the proceedings to the Federal Court. The Court’s jurisdiction arises because the Commonwealth is a party. By Notice of Motion filed in the Federal Court, the applicant seeks an extension of the limitation period under the Act. The applicable law is that of New South Wales by reason of ss 79 and 80 of the Judiciary Act 1901 (Cth).

   Background

3. The applicant was born on 6 March 1960 and joined the Royal Australian Navy on 9 February 1981.  He is still with the Navy, having initially signed on for six years, he re-engaged in 1987 for a further eight years.  Thereafter, he signed on for an open-ended engagement which would take him through to retirement age.

4. On 22 October 1985 he was serving on HMAS “Stalwart”.  The vessel was at sea.  He noticed an overpowering smell and heard announcements that an accident had occurred.  There was an emergency alarm and he went to investigate.  On the directive of a Chief Petty Officer, he went down to the hold where a gassing incident had occurred.  When he descended he saw bodies.  He wondered at the time whether what he saw was “an exercise” and whether it was a true emergency situation.  He picked up a person lying down in front of him but found that he could not breathe and was unable to lift the person out of the hold.  He then ascended the ladder, gasped for air, and began to assist in the process of hauling bodies up on a sling. He was in the hold for a relatively short period of time, in the order of one to one and half minutes so far as the evidence discloses.  There had been an escape of hydrogen sulphide gas which eventually killed 3 personnel and injured others.  He carried one body, cradling him in his arms and looking into his face; the man was choking and gasping for air.  He began to wonder whether this was really an exercise as he had originally understood it..  He said that when they were attending to the crew poisoned by gas, it was not known if their minds were active and responsive; they did not have control over their bodily functions and they were going into spasms.  The next day the applicant came down with “symptoms” and was taken into sick bay and then to a Darwin hospital.

5. He remained aboard the “Stalwart” until late 1986 when he was posted to Fleet Maintenance Management Office in Sydney.  In late 1989 he was drafted to HMAS “Ipswich”.  He was based out of Cairns and undertook a study course at HMAS “Nirimba”.  After completion he returned to Sydney until 1993 when he returned to Cairns and undertook a further course.  He said that he had problems in retaining what he was learning but that he had put this down to age.  In late 1993 he went to serve on HMAS “Gladstone” where he remained until early 1994.  He then undertook a further course and found it was more difficult to learn.  He was posted “on and off” to the HMAS “Gladstone” in 1994 and 1995. 

6. In about 1995, the applicant began to sense that things were amiss in his health, and he began to feel that his personality had changed.  He disliked what he perceived as major changes about him. He grew to have a strong distaste for authority and started to feel as if he was being used.

7. In early 1996, he experienced incidents during sleep upon sensing an odour of hydrogen sulphide gas which led to panic and flashbacks.  The odour of the gassing incident and associated bad memories were evoked.  On another occasion a similar reaction was produced by a situation where he was working in a confined hot and clammy space as on the night of the 1985 incident.  Between 1985 and January 1996 while he noted some of these problems and experiences he regarded them as something he would just have to live with as a normal sort of experience.  Around March 1996 his distress was such that he felt the need to seek professional help.  He consulted a doctor who referred him to a psychiatrist, Dr John Rigano.  Dr Rigano told him that he was suffering from post traumatic stress disorder.  Thereafter, he was on convalescent leave for six weeks before rejoining his ship.

8. The applicant’s evidence was that since the incident he has felt a degree of anxiety which was not present before the incident and which increased with the incidents in January 1996.  He was given six months onshore with psychiatric treatment and medication which helped his condition to some extent but the anxiety remains.  He also claims that he has a sense of anger and resentment and that he has experienced significant sleeping problems since January 1996.  He also refers to other changes in his personality, in that he became more isolated and withdrawn after January 1996.  He said that until the incidents in January 1996 he did not think he needed psychiatric help.  He says that he did not know until January 1996 that he had a psychiatric disorder caused by his involvement in the gassing incident on HMAS “Stalwart.” 

9. Dr Colin Moore, a consultant psychiatrist, saw Mr Mundraby and made a report dated 23 October 1998.  The report contains a detailed evaluation of Mr Mundraby’s condition against well-accepted diagnostic criteria for post traumatic stress disorder.  The report concludes that:

   “This condition …  has been extant since the incident in 1985, but not made clear to Mr Mundraby until 1996, when he first sought psychiatric and psychological treatment, after the incidents off Newcastle and Sydney.

   Prognosis

   This matter, in my opinion, is stabilised.  I can envisage no future improvement in this man’s situation, thought [sic] treatment may help him towards a better understanding of what he is going through.”

10. Dr Moore was not cross-examined on his report.

    Legislation

11. The relevant provisions of the Act are ss 60G and 60I which provide as follows:

    “60G.  Ordinary action (including surviving action)

    (1)This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the 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).”(Emphasis added)

12. It is common ground that s 60G will apply even though the cause of action arose before 1 September 1990 by reason of the operation of Schedule 5 to the Act which is concerned with “Further Transitional Provisions”.

13. The relevant dates for present purposes are:

    Gassing Incident – 22 October 1985
    Expiry of Limitation period – 22 October 1991
    Application for extension of time made – 6 August 1998
    3 years prior to that date – 6 August 1995

14. The primary question for the Court is whether the requirements of s 60I(1)(a) have been established. More precisely, whether the applicant was aware prior to 6 August 1995 of all the matters referred to in that subsection.

    The Principles

15. There was no substantial dispute as to the legal principles which apply.  The following propositions can be derived from the relevant authorities:

    1. Section 60G and s 60I apply where a cause of action occurred prior to 1 September 1990 by operation of Schedule 5 as referred to above: see Dedousis v Water Board (1994) 181 CLR 171 at 178 ff.

    2. The issue posed by s 60I(1)(a)(ii) is a subjective issue and is not one of reasonable foreseeability. What matters is the actual awareness of the particular applicant and not what might have been foreseen by a reasonable man. There is no room or role for the attribution of constructive notice: see Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9-10

    3.        Awareness of the extent of the injury requires awareness of all its consequences. What the Court has to consider is the total extent of the applicant’s injury in determining whether at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury: see Harris at 11.

    4.        The “extent” of the injury is to be determined as at the date of the application and not at the expiration of the limitation or earlier period : see Harris at 12.

    5.        An applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all the pathological and physiological incidents.  As long as the consequences are of a kind that an applicant expects to occur, the applicant will be aware of the extent of the injury: Harris at 13-14.

    6.        Especially in cases of psychiatric illness what is essential is the perception by the particular plaintiff of a distressing phenomenon: see Commonwealth of Australia  v Dinnison (1995) 56 FCR 389 at 402-403.

    In Dinnison at 403, Gummow and Cooper JJ speaking of subs (ii) said:

    “It should be noted that the paragraph uses the phrase ‘the nature or extent’.  The result is that even if there is awareness of the real nature of the personal injury, there may be a lack of awareness as to the extent thereof.  Put at its very lowest awareness of the extent of the illness only followed the diagnosis by Dr Dinnen.” (Emphasis added)

16. These remarks in Harris and Dinnison were made in relation to psychological or psychiatric injury and as such are pertinent in the present case.

    Present case

17. The disputed issues in this case are in short compass.  They are as follows.

18. First, the Commonwealth submits that there is some doubt that the respondent suffers from post traumatic stress disorder at all.  In cross-examination the applicant said that after the incident he had successfully undertaken a number of training courses.  He also agreed that at the time when he was exposed to the traumatic experience in helping the dying and injured crew members, he experienced no immediate horror of the situation at first because he believed it was “an exercise”.  It was therefore suggested that he did not have the intense horror necessary to give rise to the disorder.  Two observations should be made about these submissions.  The first is that his evidence was that about 5 to 10 minutes after first becoming aware of the gassing incident he realised it was not simply an exercise and it started to sink in that it was for real.  Second, and more importantly, the uncontradicted evidence of Dr Moore in his report of 23 October 1998 concluded that the applicant is suffering from post traumatic stress disorder and any assertion to the contrary on the state of the evidence is mere speculation.  This submission cannot be accepted.

19. Although no evidence of actual hardship or of prejudice to the Commonwealth was led, some reliance was placed on the obvious general difficulties which may occur where a proceeding is initiated a long time after the incident in question.  This concept of presumptive prejudice was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case at 547, Toohey and Gummow JJ said:

    “There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion.  But the ultimate onus of satisfying the court that time should be extended remains on the applicant.  Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [[1964] VR 788 at 793] …:

    ‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.’”

20. McHugh J with whom Dawson J agreed said that:

    “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 the real possibility of significant prejudice.”(Emphasis added)

21. In the present case the Commonwealth has not proved any significant prejudice or even any real possibility of significant prejudice.  The October 1985 incident has been the subject of a very detailed investigation and written report by the Department of Defence.  At all times since the incident the applicant has been in the service of the Navy and his experiences have been accessible to Naval authorities.  There is no suggestion that any witness has died or that any particular matter was not recorded or that memories have failed or records been lost.  In these circumstances the touchstone is whether there is any real possibility that any trial process will be significantly impeded as a consequence of the passage of time.  There is no suggestion of any such prejudice in any specific respect.  Accordingly, I do not accept this submission.

22. A third matter raised by the Commonwealth is that it would be unjust or unreasonable to grant the extension because the case is one of relatively minor psychological distress and therefore possible damages will probably be at the lower end of the scale. On its face that is not a persuasive submission. The Act draws no distinction between large and small awards of damages. Insofar as it may be suggested that the loss to the applicant will be relatively insignificant, it is not possible at this point of time to forecast the likely outcome of the proceeding. Moreover, there is no reason in principle why a small claim in monetary terms should be treated in any differential manner to a larger claim. The opportunity for a claimant to have a legitimate claim resolved by the Court may often be of greater importance to a particular claimant than the monetary amount finally awarded.

23. I am satisfied on the evidence that the plaintiff was unaware of the nature and extent of the personal injuries suffered by him at the expiration of the relevant limitation period or at any time before that expiration when proceedings might reasonably have been instituted. I find that the applicant was not aware until the finding of Dr Rigano in 1996 of the nature or extent of personal injury suffered by him. I am also satisfied that the application has been made, in accordance with subs (b), within three years after the plaintiff became aware of all three matters in subs (a) of s 60I(1) of the Act. I therefore conclude that it is just and reasonable that the limitation period for the cause of action be extended to 6 August 1998.

24. I will hear the parties on costs at a suitable time.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             15 September 1999

Counsel for the Applicant:	B R McClintock and M L Brabazon
Solicitor for the Applicant:	Szekely & Associates
Counsel for the Respondent:	T J Morahan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 July 1999
Date of Judgment:	15 September 1999