Parici v The Commonwealth of Australia

[1999] NSWSC 332

CITATION:	Parici v The Commonwealth of Australia [1999] NSWSC 332
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20842/96
HEARING DATE(S):	10 March 1999
JUDGMENT DATE:	14 April 1999
PARTIES :	Roger Wladislaw Parici (Plaintiff) The Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr Brabazon (Plaintiff) Mr B Skinner (Defendant)
SOLICITORS:	James Taylor & Co, Myrtleford, Victoria (Plaintiff) Mr C Ktenas Australian Government Solicitor (Defendant)
CATCHWORDS:	Extension of time to commence proceedings; Sections 60G and 60I Limitation Act; Voyager/Melbourne Collision
ACTS CITED:	Limitation Act 1969
CASES CITED:	McLean v The Commonwealth of Australia (NSWSC, Sperling J, unreported, 28 June 1996) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Court of Appeal, unreported, 7 March 1997) Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Commonwealth of Australia v McLean (1997) 14 NSWLR 389 Szerdahelyi v Bailey (unreported Badgery-Parker J, 1 May 1997) Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998) Dow Corning Australia Pty Limited v Paton, Meares v Paton (unreported NSWCA, 24 April 1998) Fitzgerald v Bankstown City Council (unreported Court of Appeal, 6 November 1995)
DECISION:	See para 39

27

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 14 APRIL 1999

20842/96 - ROGER WLADISLAW PARICI v
THE COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings,
Ss 60G and 60I Limitation Act -
Voyager/Melbourne collision)

1 MASTER: The plaintiff by notice of motion filed 8 August 1996 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969. The plaintiff relied on his affidavit sworn 16 October 1998. The defendant did not rely on any affidavit evidence. The defendant opposes the orders sought.
2 I observed the plaintiff carefully when he gave evidence and was cross-examined. I formed the opinion that he was recounting the events as he remembered them although his recollection was inconsistent on three topics namely, firstly, how he found his way to Ms Beck for counselling; secondly, the mechanism by which he was referred to Dr Kemp and thirdly, the timing of the appointments with Ms Beck. However, these inconsistencies do not lead me to doubt the rest of his evidence. I accept

that he was telling the truth in relation to his understanding of his psychiatric condition. When the plaintiff had to give evidence about his emotions he became hesitant. At one stage when he was giving evidence he became visibly upset.
3 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 2 January 1946 and currently resides in Western Australia.

(2) On 11 February 1963 the plaintiff became a member of the Royal Australian Navy. He enlisted for an initial term of 9 years. He was at that stage 17 years old and in good physical and psychiatric health. He was happy and looked forward to a long career in the Navy. He would go out to dances, play cricket and football. He did not drink or smoke prior to joining the Navy.

(3) On 10 February 1964 the plaintiff was a crew member of the aircraft carrier HMAS Melbourne (Melbourne). On that day the Melbourne was involved in joint exercises with the escort destroyer HMAS Voyager (Voyager).

(4) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision.

(5) At the time of the collision the plaintiff was in the mess in 3 deck for’ard of midships. He was not on duty and about to watch a movie. Suddenly he was thrown onto the deck by a jolt. The plaintiff in a panic rushed up the ladder to the flight deck to see the stern of the Voyager going down past the Melbourne starboard side and going behind floundering in the ocean. He was terrified and filled with horror and fear as he thought the Melbourne was going to sink. He was frozen in shock as he was transfixed watching the aft section of the Voyager. There were floodlights operating from the Melbourne onto the water and boats were put into the water to rescue the Voyager crewmen. He began to shout in panic to the Voyager crewmen to get on the ship as he was afraid for the men in the water and for himself as he thought the Melbourne might sink. He shouted to the crew on the Voyager as he thought that the Melbourne might sink. Someone struck him in the chest to quieten him down.

(6) The plaintiff was asked to go up to the bow to clean up debris from the Voyager. He was asked to bring a light. He saw a set of human brains and a crewman from the sick bay was called and the brains were placed in a container. The plaintiff became very distressed and vomited. He saw crew from the Voyager being brought on board the Melbourne and placed in the hangar deck area. He did not know if they were dead or alive. He heard screaming and yelling and he went to the gangway area to try and

assist but was told to “bugger off” which caused him to feel helpless and rejected. He saw the stern sink and cried. He felt confused, anxious and distressed. He smoked continually all night to try and calm down. He did not sleep.

(7) The plaintiff remembers going into Sydney harbour but the majority of the trip is a blank. He remembers being told not to talk or discuss the collision with anyone. He saw the survivors being taken off and placed into ambulances. When he went ashore he was abused by the public and called a “murderer” and “killer” and he got drunk and into a fight. He felt terrible about being accused of being a killer.

(8) As he was told not to discuss the incident with anyone he was unable to talk about it with his family even when they bombarded him with questions. He received no counselling and as he had comrades on the Voyager with whom he drank and socialised, he decided to help take up a collection for the Voyager crew. The next thing he recalled was a civilian and the police coming up to him and accusing him of collecting funds falsely. He went to the police station and the police said there were no problems and let him go. The plaintiff then travelled back to Melbourne and when he arrived the shore patrol took him into custody for falsely collecting funds under false pretences. The Captain dismissed the matter but the plaintiff felt confused and betrayed.

(9) Between the Voyager collision and discharge, the plaintiff was on vessels which served in Vietnam for one day and the Malacca Strait. On 5 July, 1966 the plaintiff was discharged from the navy as a consequence of an injury he suffered to his right knee while playing service rugby. As a result of this injury the plaintiff was no longer able to climb ladders. He made a claim for workers compensation from the Defence Department but did not receive any payments.

(10) The plaintiff says that immediately after the collision he increased his smoking to try and calm his nerves. Prior to the collision he smoked between 5 to 12 cigarettes some days. Some days when he was on duty he would smoke less or none at all and some days when he was on leave he would smoke up to a maximum of 20 or one packet. While drinking and socialising after the collision this increased to 40 cigarettes per day and sometimes up to 60 per day. This increased to 60 per day in 1966. The plaintiff gave up smoking in 1987.

(11) During the period between the Voyager collision and when the plaintiff was discharged from the Navy he was fearful and looking for a collision to occur. He became anxious near water and became claustrophobic. The events of the collision would flood back through his mind. He had flashbacks. He says that he was irritable, restless and his confidence and self-esteem were low. He was angry and depressed. After leaving the Navy he obtained a job as a storeman but this only lasted about 6 weeks as he had problems dealing with people and could not control his emotions particularly his anger. He travelled from place to place doing manual jobs and not staying in a particular job long as he was unable to cope with authority. He wandered from place to place to get away from life. He was a changed person unable to cope with ordinary responsibilities of work, was stressed, mistrustful of his bosses and felt fear at being placed in dangerous situations. He went to Kings Cross and was drinking very heavily and getting into fights.

(12) In 1970 the plaintiff married. He continued to binge drink, was moody and angry. He continued to have problems sleeping and had nightmares and distressing memories of the collision which were part of his daily life. On occasions he would find himself sitting down and suddenly he would be back in the aftermath of the collision - yelling out to the men to get off the Voyager and flashes of finding the brain and other scenes of that night. If he saw anything on the television news concerning accidents he would cry and become distressed. Since the collision he has been unable to make any close friendship as he is unable to mix with people. He cannot show any emotion to his children although he loves them. He feels different and is unable to get close to his wife and they often argue. He is still unable to discuss with anyone including his wife the collision and its aftermath.

(13) For years he drank in binges as a means of escape. The plaintiff ceased to smoke in 1987 and although he realised that he was a changed man since the collision he was unaware that he had a psychiatric illness. He thought he was trying to cope in what he saw as a normal person would do.

(14) Between 1978 and 1985 the plaintiff operated a retail tyre service at Lake Grace. The business was going broke so on the advice of accountants, the plaintiff closed the business down. In 1985 the plaintiff gained employment with “Schraeder Automotive” as a sales representative. He slipped out of the back of a truck and fractured his right femur. It was nearly five years until the plaintiff was able to walk again. While he was in a lot of pain, took panadol forte and felt useless around the house, he did not consider that this injury affected his emotional state but conceded that it made him feel aggressive and frustrated because he was asked to do things which he could not do.

(15) From 1987 for 5 years, the plaintiff received a pension from the Defence Force Retirement Fund (DFRDP) and workers compensation from his employer Schraeder Automotive.

(16) In 1991 the plaintiff found himself crying for no apparent reason. He did not realise that he had a psychiatric illness nor did he know it was related to the collision. About this time he heard on an ABC radio program that counselling was available to Vietnam veterans. While in the Navy the plaintiff had served on a vessel in Vietnam waters in 1965. He telephoned and spoke to a counsellor several times who referred him to a counsellor by the name of Jean Beck. He understood that Ms Beck was a marriage counsellor. He consulted her because he was aware he was pushing his wife and children away when they came to console him and he did not know why he was doing so. Ms Beck, at these consultations, told the plaintiff that she was a Vietnam Veteran counsellor. As to whether he found his way to her as a marriage guidance counsellor or a Vietnam veteran counsellor the plaintiff stated it was as a Vietnam veteran counsellor. However at the first consultation there was a sign in the reception of the office saying that Ms Beck was a marriage counsellor. I accept that the plaintiff was initially seeking advice for his marriage problems and it became known to the plaintiff that Ms Beck wore two hats so to speak, namely that of a marriage counsellor and that of a Vietnam veteran counsellor.

(17) The plaintiff's evidence was that he consulted Ms Beck about 6 times. He thought it was for a period of 12 months but could not be sure. Ms Beck’s records showed that the plaintiff consulted her in 1991 twice and 1992 and twice in 1994 the last appointment being 24 March 1994. I accept that Ms Beck’s records are correct and that the plaintiff’s recollection as to the time when the last consultation took place was incorrect. When the plaintiff consulted Ms Beck he related his difficulties with drinking, smoking and attitude to his children to his service in Vietnam and Indo China. At the last consultation he recollected that Ms Beck provided him with a referral to Dr Kemp, psychiatrist.

(18) It was Dr Peterkin the plaintiff's general practitioner who referred the plaintiff to Dr Kemp for post traumatic stress disorder (PTSD) on 26 May 1995 (Ex C). The plaintiff was mistaken in his belief that Ms Beck referred him to Dr Kemp. However, I infer that she told the plaintiff to see his general practitioner for a referral. The plaintiff told Dr Peterkin that he had been breaking down and crying since 1991 and because of the way things were going at home he needed to talk to someone else. He conceded that it is possible he told Dr Peterkin the above in 1991. It is the plaintiff’s evidence that neither Dr Peterkin nor Ms Beck had referred to PTSD prior to 26 May 1995.

(19) In June 1995 Ms Beck wrote to Dr Kemp. She acknowledged that the plaintiff was referred to her by Dr Peterkin for a “stress related disorder”. She wrote that the plaintiff still experienced severe stress and anxiety related to his time on the Melbourne and the other two serious accidents which occurred during his service and that his PTSD had impacted on his quality of life and his family relationships causing him both physical and emotional suffering.

(20) At the second consultation with Dr Kemp which occurred about mid 1995 the plaintiff was first made aware by Dr Kemp that he was suffering from a psychiatric illness namely PTSD as a consequence of the collision between the Melbourne and the Voyager. Dr Kemp also diagnosed that the plaintiff over the past 12 months had developed major depression and symptoms of PTSD have been the major precipitating factors of its onset.

(21) On 25 November the plaintiff gave his solicitors an Authority to Act. The plaintiff gave evidence that prior to 8 August 1996 he had heard that there was a successful claim by Mr McLean and Mr McLean had been aboard the Melbourne and that personnel from the Melbourne could claim for compensation (t 31). McLean v The Commonwealth of Australia (NSWSC, unreported 28 June 1996) was heard by Sperling J June 1996.

(22) In February 1996 the plaintiff was informed by Dr Mark Hands a cardiologist that he suffered from obstructive coronary artery angioplasty. He has since been made aware that his heart condition was caused or severely aggravated by his previous heavy smoking of up to 60 cigarettes per day. Dr Kemp in his report dated 20 October 1997 stated that it is generally accepted in medical circles that substance abuse and tobacco smoking can be associated with psychiatric conditions such as post traumatic stress disorder and can be viewed as a form of self medication or self treatment to attempt to alleviate unpleasant emotional symptoms associated with the disorder. According to Dr Kemp it also seemed accepted in the general medical literature that cigarette smoking is associated with cardiovascular ischaemia.

(23) On 22 February 1996 the Defence Centre Perth advised that liability had been admitted under the Compensation Act for PTSD.

(24) On 8 August, 1996 the statement of claim and notice of motion seeking an extension of the limitation period was filed.

(25) On 3 November 1997 Dr Peterkin wrote to the plaintiff’s solicitor and stated that to his knowledge the diagnosis of PTSD was not made until the plaintiff visited Dr Kemp on 19 June 1995.

(26) On 9 March 1999 Ms Beck wrote to the plaintiff’s solicitor and stated that the plaintiff was referred to her by his general practitioner for marital and relationship counselling when she was a co-ordinator of Relationships Australia (WA) INC Bunberry.

The Law

4 The plaintiff relies on s 58(2) , 60G and 60I of the Limitations Act, 1969. The parties agreed that this is the applicable law. The approach to be adopted in dealing with applications for the extension of limitation periods, is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Court of Appeal, unreported, 7 March 1997). The onus rests with the applicant.
5 Section 58(2) provides for the extension of the limitation period in respect of a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury. Section 58(2) provides as follows:
“Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:-

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the period of limitation for the cause of action; and
(b) there is evidence to establish the right of action, apart from a defence founded on the expiration of a limitation period,
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date…”

6 The power thus granted to the court to extend the limitation period is limited to a power to extend that period only until a date one year after the date upon which the plaintiff became aware of the last of the material facts necessary to be known by him. The date upon which the plaintiff in fact became aware of the material facts is thus of vital importance in this case, where the original motion for extension of time in respect of a cause of action was not filed until 8 August, 1996. The plaintiff cannot succeed under s 58 unless he can show that he was unaware of all necessary material facts until a date after the 8 August 1995.

7 In practical terms, the plaintiff, to open the way to an exercise of the court’s discretion under this subdivision of the Act, must identify one or more “material facts of a decisive character relating to the cause of action”; prove (by evidence) that that fact or one or more of these facts was unknown to him and not within his means of knowledge as at 10 February 1970 (the last expiration date of the relevant limitation period); and either show (by evidence) on what date (being a date after 8 August 1995) that fact (or the last of those facts to become known to him) became known to him (or came within his means of knowledge) or, at the least, show that one such fact was still not known to him as at 8 August 1995.

8 A material fact relating to a cause of action includes the nature and extent of the personal injury so caused - see s 57B(1)(b)(iv). Section 57B(1)(c) states that facts are of decisive character if, but only if, a reasonable man knowing those facts and having taken appropriate advice on those facts would regard those facts as showing that an action on the cause of action would have a reasonable prospect of success and resulting in an award of damages sufficient to justify the bringing of an action.

9 The application of s 58(2) involves a three step process. The first step is to inquire whether the facts of which the appellant was unaware were material facts: s 57(1)(b). If they were, the next step is to ascertain whether they were of a decisive character: s 57(1)(c). If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s 58(2).

10 The plaintiff submitted that he was unaware of the nature and extent of his personal injury until 1996 when he was told that he suffered from obstructive coronary artery angioplasty. The defendant submitted that the plaintiff knew that he suffered from PTSD in 1991 and that the artery condition cannot stand alone and that it must be linked to PTSD.

11 After the plaintiff left the Navy in 1966 he was irritable, restless, angry and depressed. He was anxious and expecting another collision to occur. He was anxious and claustrophobic. He had flashbacks. His confidence and self esteem were low. He drank heavily and could not hold down a job. Instead of smoking a maximum of 20 cigarettes per day this increased until the plaintiff was smoking up to 60 per day. By 1970 it would seem that he was no longer expecting another collision to occur but the other problems continued. By now the plaintiff was aware that he had problems sleeping and was unable to form close friendships or show emotion. He was still binge drinking and smoking. However, at this time which falls at the end of the limitation period the plaintiff was unaware that he had a psychiatric illness. By 1978 the plaintiff had married and had regular employment in his own business but the problems outlined above continued except that in 1987 the plaintiff gave up smoking. In 1991 the plaintiff became aware that he was crying for no apparent reason and he may well have told Dr Peterkin of these symptoms. However the plaintiff did not realise that he had a psychiatric illness nor was he aware that his behaviour was related to the collision. I accept the plaintiff's evidence that Ms Beck and Dr Peterkin did not tell him that he suffered from PTSD prior to 26 May 1995. This was confirmed by both Ms Beck and Dr Peterkin. It was in mid 1995 during the second consultation with Dr Kemp that the plaintiff was made aware that he was suffering from a psychiatric illness namely chronic PTSD and that this illness was connected to the collision between the Melbourne and the Voyager. The plaintiff was unaware that he had developed major depression precipitated by the symptoms of PTSD until he was advised of this by Dr Kemp. He was unaware of the nature and extent of his personal injury and the fact that the breach of duty caused personal injury. As the plaintiff obtained this knowledge prior to 8 August 1995, he falls outside the time stipulated in s 58(2) in relation to his claim for PTSD and major depression.

12 However the plaintiff did not know that he suffered from obstructive artery angioplasty which was caused or severely aggravated by the previous history of smoking up to 60 cigarettes per day until he was told this by Dr Hands in February 1996. The plaintiff’s evidence is that he increased his smoking from a maximum of 20 per day to 60 per day after the collision to soothe and relax him when he was feeling tense. However, even if this knowledge was obtained in 1996 within the time period stipulated by s 58(2) does it constitute a material fact? There is medical opinion that the plaintiff’s increased tobacco smoking can be associated with PTSD and can be viewed as a form of self medication or self treatment to attempt to alleviate emotional symptoms associated with the disorder and that smoking was a significant contribution to the plaintiff’s development of obstructive coronary artery disease.

13 Certainly, obstructive coronary artery disease is a different condition to PTSD. There was no mention of the plaintiff’s smoking habits in Dr Kemp’s report dated 10 June 1996. The plaintiff would have been unaware that his smoking was linked to PTSD until he saw Dr Kemp’s report of 20 October 1997. Even though the plaintiff was aware he suffered from PTSD and major depression in mid 1995, he was not aware that his increased smoking was linked to the collision nor that it would lead to obstructive coronary artery disease. The likely future course of PTSD does not include a diagnosis of obstructive coronary artery disease. It is my view that this disease constitutes a “material fact” but is it of a decisive character?

14 The plaintiff has not explained the events that led him to give up smoking in 1987. By mid 1995 the plaintiff already knew that he had suffered PTSD and it was linked to the collision. He knew that he had a cause of action with reasonable prospects of success which would result in an award of damages sufficient to justify the bringing of an action. It is my view the additional diagnosis of coronary artery disease is not a material fact of a decisive character. The plaintiff has not satisfied the requirements of s 58(2) and this claim fails.

15 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such period as it determines”.

16 The relevant provisions of s 60I are as follows:
“(1) A court may not make an order under s 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

17 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I (1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I (1)(a) (or the last of those matters to become known to him) earlier than 5 February 1993.

18 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I (1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 5 February 1993); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b).
19 The plaintiff relies on s 60I (1)(a)(i) and (ii) The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until 1995 and he was also unaware that he suffered from an obstructive coronary artery disease until February 1996. The defendant submitted that the plaintiff knew that he suffered from symptoms which could only be psychiatric in nature in 1991. The defendant also submitted that the artery disease cannot stand alone but must be linked to the PTSD.

(i) Whether the plaintiff has proved that “he did not know that a personal injury had been suffered ”

20 As previously stated after the plaintiff left the Navy in 1966 he was irritable, restless, angry and depressed. He was anxious and expecting another collision to occur. He was claustrophobic. He had flashbacks. His confidence and self esteem were low. He drank heavily and could not hold down a job. Instead of smoking a maximum of 20 cigarettes per day this had increased until the plaintiff was smoking 60 cigarettes per day. By 1970 it would seem that he was no longer expecting another collision to occur but the other problems continued. In addition the plaintiff continued to have problems sleeping and was unable to form close friendships or show emotion. He was still binge drinking. However, at this time which falls at the end of the limitation period the plaintiff was unaware that he had a psychiatric illness. By 1978 the plaintiff had married and had regular employment in his own business. In 1987 the plaintiff gave up smoking.

21 In 1991 the plaintiff was aware that he was crying for no apparent reason and he may well have told Dr Peterkin of these symptoms in 1991. However the plaintiff did not realise that he had a psychiatric illness nor was he aware that his behaviour was related to the collision. While the plaintiff was aware of his symptoms he was unaware that he was suffering from a psychiatric illness namely chronic PTSD and that this illness was connected to the collision between the Melbourne and the Voyager until he was so advised by Dr Kemp in mid 1995. The plaintiff was unaware that he had developed major depression precipitated by the symptoms of PTSD until he was advised by Dr Kemp of this. I am satisfied that the plaintiff did not know that he had suffered injury until mid 1995. As the plaintiff obtained this knowledge within the period stipulated by s 60I (1)(b) he has satisfied the provisions of s 60I (1)(a)(i).

(ii) Whether the plaintiff has proved that he was “unaware of the nature or extent of the personal injury suffered ”

22 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a disease of gradual onset.
23 The nature and extent of the injury which the plaintiff has sustained is to be determined as an objective fact as at the date of the hearing of the application. A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. In particular if the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I (1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expects, the applicant will be aware of the extent of the injury (Harris pp 13 and 14).
24 I have referred to the state of the plaintiff’s knowledge prior to the limitation period under the heading s 60I (1)(a)(i). For the reasons given there I am satisfied that although the plaintiff knew the symptoms he experienced, he was unaware that he had developed identifiable psychiatric conditions of major depression and chronic PTSD until he was advised of this by Dr Kemp in mid 1995.
25 If I am wrong in this, it is my view that even though the plaintiff knew that he suffered PTSD and chronic depression in mid 1995, the likely future course of PTSD does not include a diagnosis of obstructive coronary heart disease. While the plaintiff has not explained the reasons why he gave up smoking in 1987 and those reasons may have been because he was warned about specific dangers to his health including the development of coronary heart disease. I accept that the plaintiff did not know that he had developed obstructive coronary heart disease until February 1996. It is my view that he did not know the nature or extent of his injury until February 1996. The plaintiff has passed through the s 60I (1)(a)(ii) gateway.

Just and reasonable

26 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice; Commonwealth of Australia v McLean (1997) 14 NSWLR p 389.
27 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998) and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSW Court of Appeal, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported Court of Appeal, 6 November 1995).
28 The defendant did not concede that the plaintiff had a real cause of action but did not make any submissions on this point. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff’s damage will be in issue at the trial. It is the plaintiff’s contention that as a result of his experience of being on board the Melbourne when it was hit by the Voyager he suffered post traumatic stress disorder. He saw the collision, he shouted out to those on the Voyager and someone struck him in the chest to quieten him down. He saw crew from the Voyager being brought on deck. He did not know whether they were alive or dead. There is medical evidence to support that the plaintiff suffers from PTSD and his heart condition was aggravated by previous heavy smoking. The plaintiff’s evidence is after the collision he smoked up to 60 cigarettes per day to relax. There is evidence to link these conditions to the collision - See Commonwealth of Australia v McLean (1997) 14 NSWLR 389.
29 I turn now to Taylor’s case. In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states:
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

and;
“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 action. 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.
In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”

30 Dawson J, in Taylor said at page 2:
“The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

and;
"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."

31 He continues:
“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires an extension."
32 In The Council of the City of Sydney v Zegarac (Court of Appeal, 3 September 1997, unreported) the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E.

33 Mason P analysed the views of the Judges of the High Court in Taylor’s case. The President quoted the passage by McHugh J which begins “Legislatures enact” and was of the view that Dawson J agreed with

McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh JA appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour.

34 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
35 Mason P perceived that there may be a distinction between the notion of “significant prejudice” and the notion that delay makes “the chances of a fair trial unlikely”. In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendants would suffer “significant prejudice”.

36 The defendant has admitted the collision but denied it was negligent. I accept that with the passing of 34 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. However the defendant did not furnish evidence to demonstrate that it suffers from actual prejudice.

37 Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. There are navy records showing that at the time that the plaintiff joined the navy he was in good physical and psychological health. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean v The Commonwealth of Australia (1996-97) 41 NSWLR 389 and Lynch v The Commonwealth of Australia (Master Harrison, unreported 16 October 1998). There are also decisions in relation to extension of time of the limitation period for Voyager/Melbourne claims by Master Malpass. In the case before me there are more recent records of Ms Beck, Doctors Kemp, Peterkin and Hand available. These doctors are available to give evidence. The plaintiff is not seeking damages for physical injury although the effect of his serious knee injury on his psychological health will be an issue in this case.

38 After I have taken into account all of these matters, I am not satisfied that the “chances of the defendant obtaining a fair trial is unlikely” nor am I satisfied that the defendant will suffer “significant prejudice”. The plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause.

39

The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 8 August, 1996.

(2) Costs are costs in the cause.
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Last Modified: 04/14/1999