Ryan v The Commonwealth of Australia
[1999] NSWSC 573
•10 June 1999
CITATION: Ryan v The Commonwealth of Australia [1999] NSWSC 573 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20844/96 HEARING DATE(S): 1 June 1999 JUDGMENT DATE:
10 June 1999PARTIES :
The Commonwealth of Australia
David William Ryan
(Plaintiff)
(Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr M Joseph SC
Mr G Rundle
(Plaintiff)
(Defendant)SOLICITORS: James Taylor & Co
Australian Government Solicitor
Myrtleford Victoria
(Plaintiff)
(Defendant)CATCHWORDS: Extension of time to commence proceedings, s 60G and s 60I Limitation Act - Voyager/Melbourne collision ACTS CITED: Limitation Act 1969 (NSW) CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997)
The Commonwealth of Australia v McLean (1996) 41 NSWLR 393
Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Szerdahelvy v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997)
Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998)
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 6 November 1995)
Lynch v The Commonwealth of Australia and Parici v The Commonwealth of Australia (Master Harrison, NSWSC unreported 16 October 1998 and 14 April 1999 respectively)DECISION: See para 30
18
s 60G and s 60I Limitation Act -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
THURSDAY, 10 JUNE 1999
20844/96 - DAVID WILLIAM RYAN v
JUDGMENT (Extension of time to commence proceedings,)
THE COMMONWEALTH OF AUSTRALIA
Voyager/Melbourne collision)
2 For the purposes of this application I find the following facts. In doing so, I have taken the plaintiff’s case at its highest. Should the matter go to trial some of these facts will be disputed.
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 (NSW) (the Act). The plaintiff relied on his affidavits sworn 10 November 1998, 22 March 1999 and 21 May 1999. The defendant did not rely on any affidavit evidence. The defendant neither consented nor opposed the orders sought.
(1) The plaintiff was born on 10 June 1945. He now resides in Victoria.
(2) On 2 July 1962 shortly before the plaintiff’s 17th birthday he was accepted for enlistment as a recruit in the Royal Australia Navy for an engagement of 9 years. He was in good health both physically and psychologically. A copy of the medical examination record of 7 June 1992 confirms the state of his health.
(3) On 10 February 1964 the plaintiff was a crew member of the aircraft carrier HMAS Melbourne. On that day the Melbourne was involved in joint exercises with the destroyer HMAS 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 HMAS Voyager at sea about 20 miles south east of Jervis Bay (the collision). Eighty two men from the Voyager lost their lives in the collision.
(5) At the time of the collision the plaintiff was on the “Goofa deck” (the observation deck) behind the Bridge and was watching “the night flying”. The Melbourne was looking for wind and after it completed a turn the plaintiff could see the Voyager from the starboard side of the Melbourne. The plaintiff watched for about two or three minutes knowing that a collision was inevitable. In hindsight the plaintiff believes that he could have prevented the collision by turning on the signal light. He believed this would have given the Voyager sufficient warning of the impending collision. The plaintiff has later told Dr Wu (see report 25 February 1996 Ex DWR1) that he did not do anything because he was sticking to the Royal Australian Navy regulation of absence of independent action. The plaintiff says that this has played heavily on his mind ever since.
The plaintiff felt the impact of the Voyager on collision and was shocked to see the aft section scraping along the starboard side. There was a great deal of noise and the sound of scraping metal. The plaintiff went to action station 4 Alpha near the bow where the holding cells and the heads (toilets) were located. He checked the holding cells and the heads to see if anyone was there. The whole area had been crushed. The plaintiff secured the area as best he could then went back to the mess watched survivors come aboard and was looking for his mate among the survivors. The plaintiff subsequently learned that his mate “Leggie” had perished.
(6) Following the sinking of the Voyager and the loss of his friends the plaintiff suffered from extreme guilt feelings and became progressively anxious and stressed.
(7) As at 10 February 1970 the plaintiff had no knowledge of the precise cause or causes of the collision.
(8) In June 1970 the plaintiff was diagnosed as having a duodenal ulcer. The Navy records in relation to the diagnosis and treatment he received are available.
(9) On 1 July 1971 the plaintiff was discharged from the Navy. He was not asked to stay on and believes that this may have been because of his medical problems and lack of motivation.
(10) Following the plaintiff’s discharge from the Navy he drank and smoked to excess and continued to suffer from depression and anxiety.
(11) In April 1972 the plaintiff separated from his wife. They later divorced. In 1978 the plaintiff remarried.
(12) From 1972 to 1980 the plaintiff had various short term jobs. Since 1980 the plaintiff has been in regular employment and for the last 10 years he has been employed by CEM International Pty Limited. He currently holds the position of Purchasing Officer.
(13) In 1991 Dr Kronborg reported that the plaintiff was diagnosed as having a ulcerative reflux oesophagitis and duodenitis. Dr Kronborg also reported that the plaintiff consumed alcohol excessively. The plaintiff was aware that when he smoked he got increased levels of pain and the doctor suggested he go on a Nicorette withdrawal programme.
(14) Since the sinking of the Voyager the plaintiff has always found difficulty coping in work situations. He has experienced difficulty handling pressure and often becomes aggressive and abusive. The plaintiff says that he was aware that he had an attitude problem due to his anxiety, stress and depression. He did not seek psychiatric help. It was in about 1996 that the plaintiff was advised that he should seek treatment. The plaintiff says that until 1996 he did not understand that the collision and its aftermath caused or was capable of causing him psychiatric injury or damage.
(15) On 25 February 1996 the plaintiff consulted Dr Wu. After that consultation he became aware that he suffered a psychiatric disorder, namely a dysthymic disorder. He understood that the various symptoms he had experienced in his life since the sinking of the Voyager were attributable to the psychiatric disorder.
(16) On 8 August 1996 the statement of claim and notice of motion seeking an extension of the limitation period were filed.
(17) In April 1998 the plaintiff suffered chest pain and collapsed while at home in the shower. In hospital he was given electric shock treatment to revive him. He was told by a doctor that he had suffered a heart attack. This was the first time that he had any knowledge that he had a heart problem.
(18) On 12 March 1999 the plaintiff was examined by Dr Rosenbaum, a cardiologist. It was at this consultation that the plaintiff first understood that it was highly likely that his psychiatric condition was a cause of his heart condition. Dr Rosenbaum informed the plaintiff that anxiety and stress had contributed to his heart condition as had his smoking which was also caused by stress. The plaintiff had no knowledge that the collision had contributed to his heart condition until Dr Rosenbaum informed him. Dr Rosenbaum also informed the plaintiff that he suffered from Post Traumatic Stress Disorder (PTSD).
(19) Dr Rosenbaum in his report dated 12 March 1999 (EX DWR5) diagnosed the plaintiff as suffering from excess cigarette intake, excess alcohol intake, mild obesity, elevated cholesterol and chronic peptic ulcer, coronary artery disease, peripheral vascular disease and severe anxiety and depression with associate feelings of guilt.
Dr Rosenbaum conceded that the speciality of psychiatry was outside his area of specialist knowledge. However he stated that the plaintiff was subjected to an enormous amount of emotional stress associated with guilt at the time of the Voyager incident. It seemed highly likely that this had been a cause of substantive PTSD associated with anxiety and depression. According to Dr Rosenbaum the Voyager diaster can be regarded as a substantive predisposing factor to the onset of both the cardiac and the peripheral vascular disease.
(20) On 17 March 1999 the plaintiff was interviewed by Dr William Knox, Consultant Psychiatrist. During the course of that interview the doctor informed the plaintiff that he actually was suffering from PTSD. This was the first time the plaintiff was positively diagnosed as suffering from that disorder. Dr Wu in his report dated 25 February 1996 was of the view that the plaintiff did not fulfil the criteria necessary to diagnose PTSD. This conflicts with the opinion of Dr Knox and whether the plaintiff suffers from PTSD will be an issue in dispute at the trial.
The Law
3 The plaintiff relies on s 60G of the Act. 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) (NSWCA, unreported, 7 March 1997) and The Commonwealth of Australia v McLean (1996) 41 NSWLR 393. The onus rests with the applicant. In relation to ss 60G and 60I(1)(a) as to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.
4 I turn now to ss 60G and 60I(1)(a) which are in subdivision (3) of the Act. The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but “also (by the operation of Schedule 5) for causes of action that accrued before that date” (s 60F).
5 Schedule 5 provides by clause 4(1) that:6 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action:
“Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…”;
“…if an application for such order is made within:
(a) the period of three years referred to in s 60I; or
(b) the period of three years commencing 1 September 1990.”
7 The application to extend time was made on 8 August 1996 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be “within the period of three years referred to in s 60I”.
8 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”.
9 The relevant provisions of s 60I are as follows:10 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:
“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(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).”
(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
(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 8 August 1993.
11 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 8 August 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).
12 The plaintiff relies on s 60I(1)(a)(i) and (ii) in relation to five disorders namely, firstly, coronary artery disease, secondly, peripheral vascular disease, thirdly, psychiatric injury which includes diagnosis depression, PTSD and dysthymea, fourthly, substance abuse and fifthly, cardiac infarction. The statement of claim will need to be amended to plead these injuries, some of which have become known to the plaintiff after the statement of claim was filed.
Prior to the expiration of the limitation period, the plaintiff knew that he suffered from extreme guilt feelings and became progressively anxious and stressed. He knew he had gastric problems. In 1991 he knew he had an ulcerative reflux oesophagitis . After the limitation period expired the plaintiff was aware that he drank and smoked to excess and that he suffered from depression. It is difficult to ascertain what the plaintiff meant by depression. He may be using the expression to denote nothing more than his experience of short periods where he felt unhappy or he may have experienced symptoms which were far more serious. There are similar symptomatology which will lead to a diagnosis of depression and dysthymic disorder. However, it was not until 25 February 1996 that the plaintiff became aware that he suffered from a diagnosable psychiatric illness namely dysthymic disorder.
(i) Whether the plaintiff has proved that “did not know that personal injury had been suffered ”
13 Dr Wu based his diagnosis on the criteria described within the Diagnostic and Statistical Manual of Mental Disorders 4th Edition, 1994 of the American Psychiatric Association (DSMIV). There are 4 criteria that need to be satisfied. The essential feature of dysthymic disorder is a chronically depressed mood that occurs for most of the day more days than not, for at least 2 years. The criteria for the diagnosis of dysthymic disorder are similar to the criteria for a diagnosis of depression.
14 In 1998 the plaintiff first became aware that he had a heart problems and that it was likely that his psychiatric condition was the cause of his heart condition. In March 1999 the plaintiff became aware that the collision was the cause of his excess cigarette smoking and alcohol intake and substantive predisposing factor to the onset of both the cardiac and peripheral vascular disease. The 1999 diagnosis of PTSD does not assist the plaintiff as in 1996 he was aware that he suffered from a diagnosed psychiatric injury. It is my view that prior to 8 August 1993 the plaintiff knew that he had suffered a personal injury of depression even though it had not been diagnosed by a psychiatrist. He knew that he had suffered personal injury This falls outside the period stipulated by s 60I(1)(b)(i). The plaintiff has not passed through the s 60I(1)(a)(i) gateway.
(ii) Whether the plaintiff has proved that he was “unaware of the nature and extent of the personal injury suffered ”
15 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.
16 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).
17 As previously stated prior to the expiration of the limitation period, the plaintiff knew that he suffered from extreme guilt feelings and became progressively anxious and stressed. He knew he had gastric problems. After the limitation period expired the plaintiff was aware that he drank and smoked to excess and that he suffered from depression. In 1991 he knew he had an ulcerative reflux oesophagitis. However, it was not until 25 February 1996 that the plaintiff became aware that he suffered from a diagnosable psychiatric illness namely a dysthymic disorder which was attributable to the sinking of the Voyager. In 1998 the plaintiff first became aware that he had a heart problem and that it was likely that his psychiatric condition was the cause of his heart condition. In 1998 he became aware he had coronary artery disease and peripheral vascular disease. It was not until after February 1996 that the plaintiff did become aware he had serious long term medical problems such as dysthymic disorder, PTSD and heart problems. It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.
Just and reasonable
18 I turn now to consider whether it is just and reasonable to extend the limitation period. 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 her cause of action. (See Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, 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 (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995)).
19 The plaintiff was employed by the defendant. The defendant as an employer 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 firstly, coronary artery disease, secondly, peripheral vascular disease, thirdly, psychiatric injury which includes diagnosis depression, PTSD and dysthymea, fourthly, substance abuse and fifthly, cardiac infarction. There is medical evidence to support that the plaintiff suffers from these disorders which can be attributed to the collision - see McLean. There is medical opinion had he not been involved in the collision he would have progressed with his career in the Navy. From 1972 to 1980 the plaintiff was in periodical short term employment. Hence, there is evidence to establish that the plaintiff has a real cause of action to advance.
20 I turn now to Taylor’s case. In Taylor McHugh J at pages 8 and 9 referred to the effects of delay in the now often quoted passage which states:21 and at page 11:
“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. Secondly, 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. Thirdly, 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.”
22 Dawson J, in Taylor said at page 2:
“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.”
23 McHugh J at p 10 continued:
"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."
“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 that extension."24 In Zegarac 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.
25 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 J appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour. Mason P then referred to the following state by Toohey and Gummow JJ (in their joint judgment) at page 7:
“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.”
26 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”.
27 I accept that with the passing of 35 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. Indisputably there is presumptive prejudice.
28 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 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; Lynch v The Commonwealth of Australia and Parici v The Commonwealth of Australia (Master Harrison, NSWSC unreported 16 October 1998 and 14 April 1999 respectively). 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 Drs Norton, Kronborg, Wu, Rosenbaum and Knox which are available. Nearly all of these doctors are available to give evidence with the exception of Dr Wu who has since died.
29 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 parties agreed that appropriate order for costs is that costs be costs in the cause.
30 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) The plaintiff is to file and serve an amended statement of claim within 21 days.
(3) Cost be costs in the cause.**********
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