Norrish v Commonwealth of Australia

[2005] NSWSC 828

CITATION:	Norrish v Commonwealth of Australia [2005] NSWSC 828
HEARING DATE(S):	3/8/05
JUDGMENT DATE :	26 August 2005
JUDGMENT OF:	Bell J at 1
DECISION:	Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed

LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1986) 1 86 CLR 541 Blyth v Commonwealth of Australia [2005] NSWSC 721 Commonwealth of Australia v Diston [2003] NSWCA 51 CRA Ltd v Martignago (1995) 39 NSWLR Drayton Coal v Drain (unreported) Court of Appeal 22 August 1995 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 McLean v Sydney Water Corporation [2001] NSWCA 122
PARTIES:	Russell Charles Norrish (Applicant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	SC 20746/01
COUNSEL:	J.L. Sharpe (Applicant) S.A. Woods (Respondent)
SOLICITORS:	Hollows Solocitors (Applicant) Blake Dawson Waldron (Respondent)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 26 August 2005

20746/01 Norrish v The Commonwealth of Australia

JUDGMENT

1 BELL J: This is an application brought pursuant to s 60G of the Limitation Act 1969 (NSW) that the limitation period for the cause of action pleaded in the statement of claim filed on 31 August 2001 be extended.

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

3 The applicant pleads that the collision was the result of negligence by the officers and/or crew of either the Melbourne or the Voyager or both. As the result of the collision the applicant claims that he suffered injury, loss and damage.

4 The respondent, the Commonwealth of Australia, opposes the extension of the limitation period. By its defence the Commonwealth admits that the applicant was serving on board the Melbourne at the time of the collision and admits certain of the particulars of negligence. It does not admit that the applicant suffered injury as the result of the collision. In the Commonwealth’s submission it will suffer prejudice in defending the applicant’s claim should he be permitted to pursue it so many years after the event.

5 The applicant was born on 1 August 1939. The limitation period for his cause of action expired on 11 February 1970.

6 The applicant pleads the following particulars of injury:

“(a) Severe shock;
(b) Severe anxiety and depression;
(c) Difficulties with sleeping, nightmares and night sweats;
(d) Irritability and fatigue;
(e) Difficulty in concentrating, making decisions and solving problems;
(f) Mood swings, frustration and isolation;
(g) Post-traumatic stress disorder with avoidance symptoms and arousal symptoms;
(h) Emotional detachment;
(i) Attempts to medicate himself by heavy use of alcohol;
(j) Acid reflux;
(k) Crying Fits;
(l) Anxiety disorder;
(m) Adjustment disorder;
(n) Fear of going to sea;
(o) Suicidal ideation;
(p) Impotency;
(q) Gambling addiction.”

7 It is the applicant’s claim that but for the collision and the resulting psychological injury that he suffered he would have progressed through the naval ranks, attaining the rank of a commissioned officer and retiring at around the age of fifty-five years. On retirement he would have received a defence force pension. His claim for economic loss includes that his capacity to earn income has been impaired by reason of his psychiatric injuries.

8 In the event that the applicant is granted the extension of the limitation period, the issues at the trial will be proof of injury, causation and loss and damage.

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

(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.

10 The applicant bears the onus of demonstrating that it is just and reasonable for the Court to grant the extension that is sought.

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

(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.

12 The applicant relied on affidavits that he swore on 12 December 2001, 2 December 2002 and 3 February 2005, together with the affidavit of Bishop Thomas Robert Frame sworn on 14 April 2003 and that of his solicitor, David Brian Forster sworn on 15 July 2004.

13 The applicant joined the RAN on 5 May 1961 for an initial term of nine years. He trained at HMAS Cerebrus. It is his case that his progress was good; he became a class leader and was a keen sportsman who mixed well with his peers.

14 The applicant was posted to HMAS Melbourne in September 1961. This was his first sea posting. While a member of the crew of Melbourne he was promoted to Engineering Mechanic First Class. Annexed to his first affidavit is a copy of his RAN Record of Training and Employment, which was issued on 2 March 1982. This document, known as “the blue book” contains a record of the applicant’s naval career. It commences with the certificate of his satisfactory completion of the general entry training course, which was awarded on 30 June 1961. Certificates of the applicant’s satisfactory completion of each of the courses that he undertook while a member of the RAN are contained in the blue book. There follows an account of his various postings throughout the period of his service. His first seven years’ service is recorded by reference to the dates and nature of his promotions. From 25 March 1968 a more detailed history is provided which includes a description of his duties. The applicant was discharged from the Navy at his own request on 4 May 1982.

15 On the night of the collision the applicant had completed his duty as a member of the fuelling party. He was returning to his mess when he heard a loud bang and felt the ship shudder. He heard the pipe, “all hands on collision stations” and went to his action station. Following the collision he reported to the chief of the fuelling party and was required, with others, to check that there had been no fuel leaks. He learned as the result of an announcement while he was at his action station that the Voyager had been hit. He said that he was fearful. He was not immediately aware that people had died, but he knew that there had been a disaster. He says that he was later involved in fuelling rescue boats and that he observed rafts in the sea and searchlights trained on the sea. He saw men being plucked from the water and brought on board. He could hear people crying for help.

16 At various stages during the evening the applicant was on the deck of the Melbourne. He saw the aft section of the Voyager sinking and felt very distressed. He knew that there must have been people on board who were not able to escape. He spent time with a number of survivors from the Voyager. These were not men whom he knew well. The experience was distressing. He asked repeatedly for his friends whom he knew from the Voyager. Five members of his intake died on board the Voyager.

17 It is the applicant’s account that he experienced feelings of tension and nausea and that his heart was racing at the time he saw the Voyager sink.

18 The applicant states that he was told by a senior officer not to talk about the collision. When the topic was mentioned in his presence he became distressed and was unable to talk about it. He describes feelings of guilt about the fact that he had not been on the Voyager.

19 The applicant had played cricket against members of the crew of the Voyager on the day before the collision and he says that his mind kept going back to the cricket match and to the people he knew.

20 The applicant was due to be married seven weeks after the collision. He had wanted to cancel the wedding out of respect for his dead colleagues, but was persuaded by his prospective father-in-law that the wedding should go ahead on the appointed day. He described feeling low and tearful at this time. He was having bad dreams associated with the collision and began to drink very heavily. He puts his drinking prior to the collision as generally moderate.

21 From an early stage in the marriage the applicant says that his drinking became a source of strain to his wife. In 1968 she left him. They were reconciled in 1971. They have two sons.

22 Another difficulty in the marriage was sexual: the applicant suffered from low libido and had problems maintaining an erection. It is his case that he did not have these difficulties prior to the collision. After a time the applicant says that he also started to gamble seriously and that this was a source of further tension in the marriage. Generally, the applicant gives an account of having become irritable and argumentative after the collision.

23 In his first affidavit the applicant stated that after the collision he no longer wanted to go to sea. He had become fearful of remaining below deck and chose to undertake a shipwright’s course with a view to obtaining a shore posting.

24 After the collision the applicant says that he experienced difficulty with concentration at work. He describes himself as having lost a lot of ambition.

25 In 1968 the applicant said that he had taken an overdose of sleeping tablets. The incident occurred when he was at home, and as his wife and her parents had been present and had taken appropriate steps, he did not require medical attention.

26 The applicant said that around 1974 he wife had started giving him Antabuse in an effort to curb his drinking. She had done this without his knowledge. The effect of this medication was to produce a rash when he drank alcohol. He consulted a doctor, who advised him to either stop taking the Antabuse or to stop drinking. He had not stopped drinking.

27 The applicant recalled that in October 1980 a naval doctor had referred him to a psychologist for counselling. Annexed to his first affidavit is a copy of the psychologist’s notes of a joint counselling session attended by the applicant and his wife:

“Marital and sexual problems and alcoholic. Premature ejaculator – apparently since he started relationship with woman. Counselled him and wife – X seems at present to have - - - of an alcoholic and gambling problem. Plays poker machines quite heavily – though spasmodic. Disclaims an alcoholic problem but wife evidences that he is far gone on that score. Seems a deeply disturbed man. Will pay off in about one year. Do not think there is much I can do for him or his wife. She seems a very nice but deeply worried woman. Feel sorry for her as I consider that things will get worse with X. X lacks insight and rather paranoid re wife and her parents. Seems a hopeless case to me. Been to A&A but only for a short period and went back to his old level. Told them to come back whenever they consider it worthwhile. Wife seems keen to come back but X not so hot. X phoned me on 17/11/1980 and asked me why I referred him to a psychiatrist – which I had not done. Told him that it must have been Dr Thompson. No report written X considers that he is on top of the situation which I doubt.”

28 The applicant’s naval medical file records a 5 November 1980 referral to Dr Whetton, a psychiatrist, in these terms:

“This chief has had trouble has had trouble maintaining an erection for some time. For counselling and possible behaviour therapy.”

29 In his December 2002 affidavit, the applicant said that he had been referred to Dr Whetton in November 1980 but that he had not attended a consultation with him. In evidence the applicant said that he believed that someone had cancelled the appointment. He explained that his reason for this belief was that it would have been his duty to attend the appointment since he had been referred. As I understood his evidence he would have been disciplined had he failed to attend the appointment unless it had been duly cancelled.

30 In 1990 the applicant said that his marriage finally came to an end after his wife ran out of patience with his behaviour.

31 The applicant joined the RSL in 1992 at the suggestion of a friend. He had progressed to being elected as Branch President.

32 It is the applicant’s case that he did not realise that he was suffering from psychological injury arising from the Voyager disaster until he read an article in the Telegraph newspaper on 4 August 2000 referring to the collision. Upon reading it, it occurred to the applicant that many of the emotional problems that he was having might be related to the trauma of the collision. A firm of lawyers named Hollows were mentioned in the article and in mid-November 2000 the applicant made contact with them.

33 It had not been suggested to the applicant by the naval psychologist whom he had seen in October 1980 that his sexual problems and excessive drinking might have been related to his experience of the collision. The applicant says that he first came to understand that he had a psychiatric illness that was said to arise from the collision when he saw a psychologist, Ms Stain, on 29 and 30 March 2001. A report prepared by Ms Stain is annexed to his affidavit.

34 The applicant was referred to Dr Karl Koller, a psychiatrist, on 3 April 2001. In a report dated 6 April 2001 Dr Koller expresses the opinion that the applicant shows the post-traumatic stress disorder complex symptomatology and is a candidate for psychiatric treatment.

35 Since leaving the Navy the applicant has worked in the building industry as a carpenter. In his affidavit of 2 December 2002 he provides details of the businesses for which he worked in the period from 1982 to 2002. Exhibited to that affidavit are his income tax returns setting out details of his income between 1964 and 1973 and from 1974 until 1980, and his accounting records for his business since 1982.

36 Also annexed to the applicant’s affidavit of 2 December 2002 are the tax returns and financial statements of R & G Norrish Pty Ltd trading as the Norrish Family Trust. These contained details of his income between 1986 until 1999. His current account statements for the period 2 July 1999 to 2 July 2002 are annexed to his affidavit.

37 The applicant’s affidavit annexed to it his naval medical file and includes a table recording the names of the doctors in private practice whom he has consulted over the years with a short synopsis of the treatment given.

38 In his most recent affidavit sworn in February 2005, the applicant named a number of members of the navy with whom he had served who would be able to give an account of him. In all he named twenty-four naval personnel. A number were sailors who had been on board the Melbourne on the night of the collision. The list included the chief mechanical engineer in charge of his party that night. He also named a number of sailors who had been part of his intake at recruit training. He identified by name the Petty Officer who had selected him to be the class leader of his intake at recruit school in 1961. He named five officers, ranging in rank from a lieutenant to a commodore, who would be able to comment on his service. The affidavit also gives details of family members and of other persons able to comment on the applicant in his civilian life.

39 After transferring from the engineering branch the applicant had attained the rank of Naval Shipwright First Class. This is the equivalent of the rank of Chief Petty Officer. He attained additional qualifications including his Marine Technical Hull Certificate on 23 May 1970 and his Marine Technical Hull (Grade 4) Certificate in April 1973.

40 In cross-examination the applicant agreed that he had discussed the collision with his father-in-law, Mr Watrell. Mr Watrell is deceased. He agreed that he had become quite obsessed with the collision. However he maintained that he had not attributed the changes in his personality, including his irritability and argumentativeness, to it. It had not occurred to him that his increased drinking was associated with his experience of the collision. The applicant acknowledged that an important aspect of the marriage problems were his sexual difficulties. He denied that he had told the psychologist in 1980 that premature ejaculation had been a problem for him since he started having relationships with women.

41 The applicant agreed that his general practitioner had been Dr Ong and that he had spoken to him at some stage about his drinking. Counsel suggested to him that in or about May 1973 he had given an account to Dr Ong that he was a social drinker. The applicant was unable to recall this. He was not able to give an account of the amount that he was drinking at that time. He was unable to recall whether his wife had ever suggested that he consult Dr Ong or some other professional person about his drinking problem. He accepted that she might well have made such a suggestion. He agreed that it was probable that his wife had wanted him to attend further sessions with the Naval psychologist.

42 The applicant agreed in cross-examination that prior to the collision he had wanted to become a naval shipwright. He was cross-examined about his long-term career plans at the time he joined the Navy. He said this:

“I think from the start of the job, you know, it’s how it turns out, you know, and I really had no idea at the time. I don’t know, I just, 1961 is a long time ago” (03/08/05 T23.3-5).

43 When he joined the Navy the applicant agreed that his attitude had been that if things went well he would remain in it and if things appeared to be better on the outside he would leave at the end of his nine-year term. When he changed over to being a shipwright in 1965 he had to sign up to complete a twelve-year term dating from his entry into the service. In 1973, at the expiration of the twelve-year term, he had signed on again for a further term. He agreed he had been quite content with his life in the Navy. He acknowledged that throughout the 1970s he had held positions that involved instructing naval personnel in their jobs. In January 1981 he was promoted to the rank of Warrant Officer. This is the most senior non-commissioned rank in the Navy.

44 The applicant accepted that his reason for seeking a discharge had been to assist both with family stability and to permit him to obtain alternative employment. After leaving the Navy he had obtained and maintained fulltime employment.

45 One aspect of the applicant’s claim for economic loss is that from time to time since leaving the Navy he has taken periods of up to one month off work as the result of his post-traumatic stress symptoms. He was not able to say when these periods were (03/08/05 T30.19). He acknowledged that he had suffered various injuries in the period following his discharge from the Navy necessitating that he take time off work but he could not identify the periods of time that he had taken off in this connection.

46 In cross-examination the applicant was asked to identify whether his case was that but for the collision he would have stayed in the Navy until the age of fifty-five or that, but for the collision, he would have gone into the building trade and attained a senior management position. He said that it was probably the latter. Had he not suffered the psychological injury it is his case that he would have been able to concentrate on his business and that he would have been very successful in the building industry.

47 I turn now to a consideration of s 60I of the Limitation Act. The court may not make an order under s 60G unless it is satisfied that the applicant was unaware of one or more of the matters set out in subs (1)(a)(i) – (iii) and that the application is made within three years after the applicant became aware (or ought to have become aware) of all three matters.

48 In Commonwealth of Australia v McLean (1997) 41 NSWLR 389 Handley JA and Beazley JA observed at 394-395:

“Section 60I however requires the court to be “satisfied” of one or more of the matters referred to before ordering an extension. At least two of those matters, namely personal injury and its connection with the defendant’s act or omission, are necessary ingredients of a plaintiff’s cause of action for personal injuries. The judge held that an applicant must prove as a fact the he or she was unaware of the relevant matter, but the relevant matter itself need not be proved, it being sufficient that it was the subject of a claim that raised a serious question to be tried.
The judge carefully reviewed all the relevant authorities, and we entirely agree with his analysis. In particular, we agree that the references in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 8 to the onus of proof of certain matters borne by an applicant are not authority for the proposition that those matters must be proved as facts on an application for an extension. No such issue was before the High Court in that case, and the references are merely descriptive.
Section 60G and s 60I are clearly intended to operate together. The requirement in s 60I that the court be satisfied of various matters must be read as requiring no higher proof from an applicant on matters which form part of the cause of action than is required by s60G(2). When these provisions are read together, it becomes clear, as the judge held, that s60I requires the court to be satisfied that the applicant was not aware of the matters referred to, but does not require proof of those matters as facts.”

49 It is the Commonwealth’s submission that at all material times (that is, for more than three years prior to the application for extension) the applicant was aware that personal injury had been suffered, of the nature and extent of the personal injury, and of the connection between the personal injury and its alleged acts or omissions.

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

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

51 I am not satisfied that the applicant did not know that he had suffered the personal injuries particularised in his claim. He was necessarily aware of a number of them, such as that he had difficulty with sleeping, nightmares and night sweats, irritability and fatigue, acid reflux, crying fits, fear of going to sea, suicidal ideation, impotency and gambling addiction. In his consultation with Helen Stain, the psychologist, he gave an account that he suffered from emotional detachment and numbing. In the history given to Dr Koller he described his poor concentration, tendency to startle readily and tendency to be socially avoidant. It would seem that some of these behaviours and conditions are consistent with post-traumatic stress disorder. I accept that he did not know that the constellation of symptoms of which he was aware might be classified as this psychiatric condition.

52 I turn to the second of the gateway provisions in s 60I(1)(a). This requires that the applicant satisfy the Court that he was unaware of the nature or extent of personal injury suffered. A person may not know the medical description or diagnosis of his or her condition, but nonetheless be aware for the purposes of s 60I(1)(a)(2) of the nature and extent of injury. In CRA Ltd v Martignago (1995) 39 NSWLR 13, Clarke JA (with whose judgment the other members of the Court agreed) observed at 20:

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

53 The question of whether the applicant was aware of the nature or, in a broad way, of the extent of the personal injury that he suffered, is one of some difficulty. He knew that he was a troubled individual with long-standing problems of sexual dysfunction and a tendency to drink to excess and to gamble. He had some insight into his emotional detachment and his tendency to be socially avoidant. Whether he understood that his behaviour, moods and sexual dysfunction were such as to take him outside the range of normal so that it can be said he was aware of the nature and, in a broad sense, the extent of his personal injury is less clear. When he read the article in the Telegraph it occurred to him that a lot of the emotional problems that he was having may be explained by the collision. To my mind this tends to suggest awareness, in a general sense, of the nature and extent of the personal injury. It is not necessary to come to a concluded view on this aspect in light of the view that I have come to with respect to the third of the gateway provisions.

54 In written submissions the Commonwealth contended that for more than three years before bringing his application the applicant had been aware that the collision was the result of the negligence of the officers and/or the crew of one or other or both of the ships. In evidence the applicant acknowledged as much. In the Commonwealth’s submission, having regard to the nature of the particulars of injury identified by the applicant, I would be satisfied that he was aware that these conditions or behaviours (or at least a number of them) arose as the result of his reaction to the collision.

55 The applicant said that he did not make the connection between his emotional problems and the collision until prompted to do so by the newspaper article. It is true that he says with respect to a number of his behaviours, including excessive drinking, sexual dysfunction, sleep disturbance and irritability, that their onset followed the collision. It does not follow that he was aware of the causal relationship between these behaviours and his experiences at the time of the collision. The applicant consulted a naval psychologist in October 1980 whose name appears to be Van Daatalaan. The notes of the consultation record the problems with which the applicant was then suffering. The psychologist observed that the applicant appeared to lack insight. There was discussion of the applicant’s sexual difficulties and drinking patterns. Had the applicant been aware of the causal connection between his experiences of the collision and the difficulties which led to the counselling session, one might have expected him to raise it. The notes do not suggest that he did.

56 The plaintiff impressed me as a credible witness and I am satisfied that he was unaware of the connection between the person injury that he suffered and the Commonwealth’s negligent acts that resulted in the collision.

57 The Commonwealth submitted that even if the applicant established that he passed through one of the gateways of subs (1)(a)(i) - (iii), nonetheless it should be found that his application had not been made within three years after he ought to have become aware of all three matters in paragraph (a)(i) – (iii). In this respect the Commonwealth relied on the applicant’s affidavit material, contending that from shortly after the collision the applicant was aware of the effects of it on his physical and mental condition and that he had ample opportunity to seek medical advice and/or counselling, but that he had not done so. His failure to attend the consultation with Dr Whetton was relied upon.

58 The circumstances surrounding the referral to Dr Whetton are unclear. As discussed above, it appears that following his consultation on 23 October 1980, the applicant telephoned Mr Van Daatalaan, asking why he had been referred to a psychiatrist. Mr Van Daatalaan told him that he had not done so and suggested that the referral may have been made by Dr Thompson. In Mr Van Daatalaan’s view the applicant presented as a deeply disturbed man who lacked insight. The latter observation seems to me to be consistent with the applicant’s reluctance to pursue any psychiatric referral. Whether the appointment with Dr Whetton was cancelled by another or by the applicant does not seem to me to be of moment. There is no suggestion that the psychologist, nor Dr Thomson (or any other member of naval medical staff) made any link between the Melbourne/Voyager collision and the applicant’s difficulties. I see no reason to find that the applicant ought to have done so.

59 I am satisfied that the applicant was unaware of the connection between his personal injury and the Commonwealth’s act or omission at the expiration of the limitation period and that these proceedings were commenced within three years after he became aware, or ought to have become aware, of each of the three matters listed in paragraph (a)(i) – (iii).

60 It is necessary to consider the question of whether the applicant has established that it is just and reasonable to extend the limitation period to permit him to bring his claim.

61 The Commonwealth submits that considerations of constructive notice are relevant to the exercise of the discretion under s 60G. In this respect reliance is placed on CRA Ltd v Martignano at 22 per Clarke JA:

“That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the master held was the situation in this case, would not be relevant. In my opinion it would be a highly relevant matter for consideration in the exercise of discretion. I say this in particular having regard to the policy underlying this part of the Act to which reference was made by Deane J in Do Carmo v Ford Excavations Pty Limited (1984) 154 CLR 234. There his Honour said (at 250 – 251):
“… It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than 12 months before the commencement of proceedings.””

62 Reliance was also placed by the Commonwealth on the judgment of the High Court in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 14 and on the judgment of Gleeson CJ in Drayton Coal v Drain (unreported) Court of Appeal 22 August 1995:

“It is important to bear in mind, however, that satisfaction of the requirements of s60I(1)(a)(iii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under section 60G(2) is the extent of the plaintiff’s awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiff’s injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to other aspects of s60I(1)(a).”

63 I do not find that the applicant is relevantly at fault in the sense that he had the means of knowledge at his disposal and that he failed to take steps to learn that he had a worthwhile cause of action. This is because of my acceptance that he did not make a connection between his emotional difficulties and his experience of the collision.

64 In the Commonwealth’s submission, it is not just and reasonable to permit the applicant to bring this claim so many years after the events. Reliance is placed on the statements of principle in Brisbane South Regional Health Authority v Taylor (1986) 1 86 CLR 541 and in particular on the observations of McHugh J at 551 – 552.

65 I approach the matter upon the basis that the application should be refused if to grant it would result in significant prejudice to the Commonwealth: Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 Sheller JA.

66 The Commonwealth read the affidavits of John Mark Caton Emmerig, the solicitor with the carriage of the matter on its behalf, sworn on 4 September 2002, 21 July 2004 and 29 July 2005.

67 Exhibited to Mr Emmerig’s first affidavit is a medical record dated 27 March 1962 recording that the applicant had a bruised nose and giving the following history:

“Whilst drunk ashore last pm. Injured nose in unknown way.”

68 In the Commonwealth’s submission this scant entry provides evidence of excessive drinking prior to the collision that is inconsistent with the applicant’s account of his drinking history. However, the lapse of time deprives the Commonwealth of the opportunity to investigate the inconsistency.

69 Equally the Commonwealth points to the absence of a complete history of the applicant’s sexual dysfunction. It complains of its inability to test the applicant’s allegations as to the cause of his psychological problems or their duration. In this respect it is apparent from the statement of the applicant’s ex-wife, Gai Norrish, which has been served on the Commonwealth, that the applicant consulted a doctor in the period between 1964 and 1968 concerning his impotency. It is submitted that at the time the applicant is likely to have given a full and frank account of the problem. This is significant in as much as the clinical note taken by Mr Van Daatalaan may suggest that the applicant was asserting at that time that his sexual problems dated back to his first sexual experiences with women and not that the difficulty emerged after the collision.

70 In his affidavit sworn on 21 July 2004, Mr Emmerig refers to the absence of the applicant’s Certificate of Service, a document issued to ratings upon their discharge. The Certificate contains a record of the rating’s career, including date of entry, discharge, history sheets, conduct sheets, divisional officers’ record sheets and information relating to disciplinary charges and punishment. The Manager of the Department of Defences Archives has advised Mr Emmerig that the Navy did not retain a duplicate copy of the Certificate of Service when a rating was discharged.

71 Counsel for the Commonwealth placed significant emphasis on the circumstance that the applicant has not produced his Certificate of Service. In other respects it was not suggested that the absence of naval records was likely to be of real moment. The Certificate of Service would be expected to contain details of the persons who were responsible for supervising the applicant throughout his career. Counsel acknowledged that the information provided by the applicant as to the names of those with whom he had served and officers whom he expected were in a position to comment on him addressed some of the difficulties that the Commonwealth faces, but noted that “it is a lucky plaintiff who gets to choose the witnesses for the defendant” (03/08/05 T52.45). The applicant remained in the Navy until 1982. The blue book provides a detailed history of his service, including each of his postings. It seems to me reasonable to conclude that the Commonwealth would not be without recourse to sources in addition to the persons nominated by the applicant who could identify at least some of the personnel attached to the various establishments at which he served.

72 While it falls to the applicant to prove his claim for economic loss, the Commonwealth points to the likelihood that he will give evidence that may discharge the evidentiary burden sufficient to establish a prima facie case. Reliance was placed on the observations of Studdert J in Blyth v Commonwealth of Australia [2005] NSWSC 721 at [82] – [85]. Each case, of course, falls to be considered on its own facts. In this case, as the Commonwealth acknowledges, the applicant has produced extensive financial records and service records. The applicant is not challenged as being uncreditworthy.

73 The challenge that the Commonwealth makes is as to the applicant’s reliability. In counsel’s submission, after this lengthy interval the applicant’s evidence necessarily involves reconstruction. Counsel pointed to the applicant’s evidence of his reasons for transferring from mechanical engineering to the shipwright branch. The applicant’s evidence is that he became fearful of being at sea after the collision and that he believed that he would have more chance of being given a shore posting as a shipwright. In cross-examination he acknowledged that prior to the collision he had been interested in utilising his trade skills as a shipwright.

74 In the Commonwealth’s submission there exists the real risk that the applicant, as he looks back over events in his life will, by a process of reconstruction, come to view them as causally related to the collision. One significant plank of the applicant’s economic loss claim depends upon his account of events. While it is not suggested that he has told deliberate lies, he is said to be unreliable because of the effect of his own loss of memory and the natural tendency to reconstruct. In this sense the Commonwealth submits that it faces difficulties akin to those discussed in Commonwealth of Australia v Diston [2003] NSWCA 51 per Sheller JA at [44].

75 Annexed to the Commonwealth’s submissions is a schedule setting out the names of each of the persons identified in the applicant’s affidavit as a person who may have relevant evidence to give. These include a number of members of the applicant’s family. The defendant has not sought to interview the applicant’s family members. A statement by Gai Norrish, his former wife, is available. Ms Norrish describes the applicant as drinking to excess throughout their marriage. She refers to his sexual difficulties. She recollects that he tended to lay the blame on her parents for their marital difficulties. She describes how she treated him with Antabuse and their joint consultation with the naval psychologist.

76 By letter dated 14 June 2005 the Commonwealth’s solicitors wrote to the applicant’s solicitors, requesting the provision of statements or a précis of the evidence to be given by each of the persons whose names were supplied in the applicant’s February 2005 affidavit. The applicant’s solicitors declined to provide outlines of evidence. In the applicant’s submission it is sufficient that he has furnished the Commonwealth with the names of former naval personnel and civilians who may be interviewed with a view to obtaining an account of his habits and disposition before and after the collision. The Commonwealth submits that it is up to the applicant to redress the prejudice occasioned by bringing his claim so long after the event and his failure to take this step evidences an unwillingness to do so. I do not consider that the applicant should be required to obtain and serve outlines of evidence from the large number of persons whom he has identified as having had dealings with him over the years.

77 Mr Emmerig engaged Damien Duncan, a private investigator, to carry out inquiries in an effort to trace and speak with the people named by the applicant in his affidavit. These inquiries were carried out in June 2005. The results of the inquiries are set out in Mr Emmerig’s affidavit. In a number of instances Mr Duncan was not able to identify the person nominated due to the insufficiency of the information provided. In some instances a précis is given of the matters reported to Mr Duncan. In other instances the only information supplied is that the person named recalled the applicant.

78 The Commonwealth points to the absence of independent evidence concerning the plaintiff’s character and his conduct before the collision. Mr Duncan spoke with a man named George Reeman, who attended primary school with the applicant. The two were friends until Grade 8. Mr Reeman’s recollection extends to no more than that as a child the applicant was a good sportsman. Since that time they have only met on one occasion.

79 Mr Duncan also interviewed a man named Ralph Wrigley. Mr Wrigley was a foreman with the Queensland Department of Works and in this capacity had a vague recall of the applicant prior to his entry into the Navy. Lenny Dibble, who worked with the applicant in the Queensland Works Department, had a recall of him as a soccer player and as a good worker. The two did not mix socially.

80 The Commonwealth complains that the applicant has identified by name a number of personnel with whom he served but has not provided contact details for them. It is not known whether the Commonwealth is in a position to identify the present whereabouts of any former naval personnel who served with the applicant by means that are independent of him.

81 The Commonwealth has obtained a report from Dr Skinner, a psychiatrist. She prepared her report based on a number of documents, including medical records relating to the applicant of a number of doctors in private practice, the Royal Prince Alfred Medical Centre and Navy Health. She also had access the applicant’s statement and to the reports of experts qualified on his behalf. Dr Skinner observes:

“If Mr Norrish had a diagnosis of post-traumatic stress disorder related to the collision, he should have been aware of the relationship of symptoms and the collision. The symptoms of post-traumatic stress disorder are related to the precipitating traumatic event, and include intrusive recollections or thoughts related to the event, dreams and nightmares of the event and related themes, and extreme arousal and hyper vigilance triggered by reminders of the event. Medical practitioners should be aware and able to recognise signs of psychiatric disorder and to arrange appropriate referral for treatment. Other persons such as employers usually notice the signs of anxiety, arousal and hyper vigilance.
The effluxion of time makes it difficult to determine a diagnosis in relation to Mr Norrish, as discussed above. The available medical records do not demonstrate a significant change in his psychological state after the Voyager collision. The information available is inadequate to establish a diagnosis of post-traumatic stress disorder, or other psychiatric disorder related to the Voyager collision.”

82 Dr Skinner comments on the number of medical practitioners who have examined the applicant since 1973. There is no record that the applicant complained of emotional symptoms, such as insomnia or nervousness, or signs of anxiety such as elevated pulse or blood pressure, prior to August 2001. She notes that one might hypothesise that some doctors were unaware of his symptoms of anxiety, but that it would be surprising for a person to consult so many doctors without a psychiatric condition being recognised. The naval medical records demonstrate that the applicant was medically examined in 1964, 1965, 1972, 1981 and 1982 and that no problems with his nervous system or emotional state were detected. Dr Skinner comments that it appears clear that Mr Van Daatalan considered that the applicant had psychological problems. In her opinion one explanation for his sexual problems may be that they were related to alcohol abuse. In her view, there is nothing arising from the notes of that consultation to suggest a diagnosis of post-traumatic stress disorder.

83 I am mindful that the Commonwealth may not have available to it the number of potential witnesses able to comment on the applicant’s conduct and demeanour before and after the collision as would have been the case had the claim been brought earlier. Nonetheless this does not in any real sense seem to me to occasion prejudice to the Commonwealth in meeting the claim that the plaintiff suffered frank psychiatric injury as the result of the collision. It is common ground that after the Voyager disaster the applicant remained in the Navy for some eighteen years and that he progressed with promotion to the rank of warrant officer. Calling witnesses to give evidence that in the years following the collision he was observed to be an apparently competent and unremarkable sailor would not shed light on the claim that he makes. The injuries of which he complains are not the sorts of matters one might expect his work colleagues to detect. Extensive medical records are available and provide a basis for the provision of expert opinion, such as that set out in Dr Skinner’s report.

84 The provision of financial records is such that the Commonwealth acknowledges his earnings after leaving the Navy can be determined. It is the question of his claim for lost earning capacity that is central to the prejudice that the Commonwealth identifies. It is the applicant’s claim that as the result of his psychiatric injury and associated alcohol dependency he became a social isolate and was not capable of performing at the level that he might have done. Mr Emmerig’s affidavit demonstrates that the Commonwealth has been able to locate some of the persons that the applicant nominated as knowing him in his civilian work life: Craig Hetherington, for whom he worked as a carpenter in 1995–1996, and James Moses, for whom he worked in 1993 and 1994. Both of these men are said to recall the applicant. The evidence is silent about two of the persons nominated as able to comment on the applicant’s civilian work performance: Barry Hooke and Charlie Lynch. Mr Duncan was not able to locate Allan Hyde for whom the applicant says he has worked since 1996. He was also not able to locate Colin McDonald who was the applicant’s foreman at the Department of Public Works in Sydney between 1994 and 1996. He was also unable to locate Claire O’Neil, whom the applicant nominated as a person able to give evidence of his demeanour and employment in the period 1993 to 1994.

85 I do not consider that the tendency of witnesses, including honest witnesses, to reconstruct memories after the interval of many years to create a difficulty of the same potency as that with which the court was concerned in Diston. An honest witness may be expected to acknowledge error when, for example, his or her attention is directed to a document or circumstance inconsistent with recall, much as the applicant did when questioned about his reasons for seeking transfer to the shipwrights’ branch. In this case there is a very considerable body of documents recording the applicant’s naval career, medical history and his post-Navy employment.

86 While the lapse of years has produced a situation in which the Commonwealth has available fewer potential witnesses to give an account of the plaintiff’s demeanour and work habits since leaving the Navy, I have concluded that a fair trial may still be held. In this respect I note the observations of Giles JA in McLean v Sydney Water Corporation [2001] NSWCA 122 at [27], citing Priestley JA in Holt v Wynter ([2000] NSWCA 143; 49 NSWLR 128) with approval.

87 There is a serious question to be tried as to whether the applicant suffered the psychiatric injuries of which he complains and, in the event that he did, whether those injuries were suffered by reason of the Commonwealth’s admitted negligence. To my mind it is just and reasonable that the limitation be extended to enable him to bring this claim.

ORDER

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

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