Shaw v Commonwealth of Australia - [2005] NSWSC 1027

No judgment structure available for this case.

CITATION:
Shaw v Commonwealth of Australia [2005] NSWSC 1027

HEARING DATE(S): 25/08/2005, 26/08/2005

JUDGMENT DATE :

14 October 2005

JUDGMENT OF:
Howie J at 1

DECISION:
The limitation period for the cause of action is extended to the date the statement of claim was filed being 4 October 2004.

CATCHWORDS:
Limitations of actions - Limitation Act 1969 s 60G, s 60I - Knowledge of plaintiff as to injuries, their nature and extent and connection with the defendant's act or omission - whether extension would result in significant prejudice to the defendant.

LEGISLATION CITED:
Limitation Act 1969 - ss 60G, 60I

CASES CITED:
Commonwealth v Nelson [2001] NSWCA 443
Commonwealth of Australia v Dinnison (1995) 56 FCR 389
CRA Ltd v Martignago (1995) 39 NSWLR 13
Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1
Holt v Wynter (2000) 49 NSWLR 128
Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541
McLean v Sydney Water Corporation [2001] NSWCCA 122
Blyth v The Commonwealth [2005] NSWSC 721

PARTIES:
Brian John Shaw v Commonwealth of Australia

FILE NUMBER(S):
SC 20444/2002

COUNSEL:
M. Elkaim SC with J. Sharpe - Plaintiff
C.T. Barry QC with G. Woods - Defendant

SOLICITORS:
Hollows Lawyers - Plaintiff
Blake Dawson Waldron - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 14 OCTOBER 2005
20444/2002 Brian John Shaw v Commonwealth of

Australia

JUDGMENT

1 HIS HONOUR: Brian John Shaw (the plaintiff) was a sailor on board HMAS Melbourne (the Melbourne) when it collided with HMAS Voyager (the Voyager) on 10 February 1964. On 4 October 2004 he commenced proceedings against the Commonwealth of Australia (the Commonwealth) for damages for personal injuries that he alleges were occasioned to him as a result of the collision. The issues that would arise at a hearing of the plaintiff’s claim would be proof of injury, causation and loss and damage. There would be no issue as to the plaintiff being a member of the crew of the Melbourne or liability on the part of the Commonwealth for any injury that the plaintiff might have suffered as a consequence of the collision.

2 The limitation period relevant to these proceedings expired on 11 February 1970. In order to pursue this claim the plaintiff must obtain an order pursuant to s 60G of the Limitation Act extending the limitation period applying to such a cause of action. It is common ground that before the limitation period can be extended the plaintiff must satisfy the Court that s 60I of the Act applies. The Commonwealth opposes the application.

3 Section 60G relevantly states:

(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.

4 Section 60I provides:

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

5 The plaintiff relies upon an affidavit in which he gives the circumstances in which he came to be injured as follows. The plaintiff joined the Royal Australian Navy (the Navy) on 30 July 1956 and was posted to the Melbourne on 6 January 1964. At the time of the collision in February 1964 he was a Leading Patrolman. He was off duty and was sitting in the mess with three other sailors toward the bow of the ship. He heard a “massive crunching sound” and the alarms were sounded. He went to the port Weather Deck and saw the bow of the Voyager moving down the port side with sparks in the water. He heard “terrified screaming” and cries for help coming from the dark.

6 He assisted bringing distraught and injured survivors from the Voyager onto the Melbourne. At one point he was swept off the platform on which he was operating by the heavy swell. He states that he was “worried about sharks, very scared of drowning and was most distressed as I could hardly swim”. He managed eventually to get himself to a rescue dingy and was returned to the platform on the Melbourne. He continued to assist for some period thereafter. That night, and ever since, he has had difficulty sleeping.

7 The plaintiff claims that after the collision the crew of the Melbourne was told by Captain Robertson over the PA system not to talk about the incident to anybody including the media. He never discussed his experiences with any of the medical officers in the Navy during his later service as he felt distressed whenever he spoke about it.

8 When he returned to Sydney after the collision, he went to a hotel and “got very drunk”. The plaintiff claims that since the collision he has consumed more alcohol than he did before it and in effect he progressed from a moderate drinker to an alcoholic. He also began to smoke more heavily. He believes that his heavy drinking affected his naval career by delaying his promotions and ultimately led to him abandoning the Navy. He was discharged from the service on 30 September 1979.

9 The plaintiff was born on 9 June 1939 and grew up in the Gippsland area of Victoria. His father was in the Navy and the plaintiff decided to follow in his footsteps by joining the Navy just prior to his 17th birthday. He started his naval career being trained as an airman but in July 1961 transferred to the Regulating Branch carrying out policing duties.

10 He became an Acting Leading Patrolman on 31 October 1961 and a Leading Patrolman, the rank he held at the time of the collision, on 31 October 1962. He was promoted to Acting Regulating Petty Officer on 2 September 1966, Regulating Petty Officer in September 1967 and a Petty Officer Coxswain in September 1969. He ultimately attained the rank of Chief Coxswain. However, he believes that, as a result of his behavioural problems after the collision, his promotion to Regulating Petty Officer was slowed down. He also believes that he should have gone further in his naval career than he did.

11 The plaintiff left the Navy in 1979 at the urging of his wife at a time when he was having marital problems arising from his excessive use of alcohol. However, the marriage failed. This was his second marriage, his first having come to an end in 1966. The plaintiff’s third marriage took place in 1996 although he had lived in a relationship with his third wife for 18 years before their marriage. This marriage ended in June 2000. The plaintiff claims that these relationships failed because of his heavy drinking and his violent and abusive behaviour. He now lives by himself in a caravan and continues to drink to excess. The plaintiff does not work and since 1998 has been receiving benefits from the Department of Veteran Affairs (Veteran Affairs) due to the decrease in his hearing as a result of his naval service.

12 The plaintiff states that since the collision he has had recurrent nightmares involving him being in the water and fearing drowning. He experiences these nightmares about once a fortnight. He drinks alcohol to help him avoid these nightmares. He also suffers from heavy sweating during the night.

13 The plaintiff also states that since the collision he has become more fearful of the water and would not swim for recreational enjoyment. The plaintiff’s ability to swim at the time of the collision was a matter subject to some investigation during his evidence because of his assertion that he feared drowning. He passed his swimming test on 22 April 1958. However, in a naval recruiting form apparently filled in by the plaintiff in August 1956 under the heading “Sports, Spare-time activities” is written, amongst other things, “High diving swimming”. A circle has been placed around the words “can swim” and after that is written “300 yds”. The plaintiff disputes that he wrote the words “high diving” and “swimming” although he conceded that his handwriting appears otherwise on the document. There appears to me to be some similarity, superficially at least, between the writing style employed for those words and that appearing on other parts of the document. However, it is unnecessary to resolve the dispute as I am prepared to accept that, whatever might have been his general ability to swim, he might well have found himself in difficulties in the water in the aftermath of the collision. The matter did not loom large, if at all, in final addresses.

14 In 2002 the plaintiff was referred to a firm of lawyers who were representing former crewmen of the Melbourne in claims arising from the collision. They referred the plaintiff to a psychiatrist, Dr Hopwood, who first examined the plaintiff on 15 October 2002. In a medico-legal report dated April 2004, Dr Hopwood describes the plaintiff as suffering the symptoms of Post Traumatic Stress Disorder as a result of the collision. He believed that the disorder was complicated by Alcohol Dependence and an Anxiety Disorder.

15 The plaintiff pleaded the following by way of particulars of injury:

(a) Post traumatic stress disorder;

(b) Stress, anxiety, nervousness and psychological reaction;

(c) Sleep disturbances involving difficulties falling asleep, staying asleep, restless sleep, nightmares, which has resulted in tiredness, lethargy, listlessness and sweating at night;

(d) Depression;

(e) Continuing, distressing intrusive recollections;

(f) Development of acid reflux and indigestion;

(g) Difficulty in concentrating, making decisions and solving problems;

(h) Mood swings, frustration and isolation;

(i) Avoidance phenomena resulting in uneasiness in crowds, thought repression and avoidance of thoughts and feelings associated with the said collision;

(j) Emotional detachment; insecurity and lack of confidence;

(k) Attempts to medicate himself by heavy use of alcohol with consequential impairment of body function;

(l) Hypertension;

(m) Dysthymic disorder;

(n) Cigarette addiction with consequential impairment of body function;

(o) Generalised anxiety disorder;

(p) Adjustment disorder;

(q) Reduced ability to engage in sexual intercourse;

(r) Fear of drowning;

(s) Mini strokes;

(t) Mood swings.

16 Against this background it is necessary first to turn to the preconditions set out in s 60I. The plaintiff states in his affidavit that until he spoke to a solicitor in 2002 it had never been suggested to him that he had suffered an injury arising from the collision. He also states that until he saw the statement of claim drafted by his solicitor he was unaware that the collision was caused by the negligence of naval officers or the Commonwealth.

17 In his report Dr Hopwood stated:

18 In a letter dated 23 June 2004 to the plaintiff’s solicitors, Dr Hopwood, as a response to an inquiry as to when the plaintiff became aware that he “sustained an injury that might be compensable”, wrote:

19 The plaintiff gave evidence and was cross-examined about some entries in his naval medical file. In 1957, when the plaintiff was aged 18, he reported that he was “sick on shore” for a period of 13 days between 19 June and 2 July. The diagnosis was “nervous shock”. The notes in the file state: “Rating was sick on shore from 19 June to 2 July suffering from nervous shock following a truck accident on the Princes Highway while on leave”.

20 The plaintiff’s account of this incident was that he had failed to return to HMAS Albatross on time and went to a local medical practitioner claiming falsely that he was unwell as a result of a truck accident. He admitted that he lied to both the medical practitioner and to the army doctor on his return to his ship as there had been no accident. The plaintiff stated that, notwithstanding the deception, he spent 7 days in the cells for his failure to return on time. He could not explain how this had occurred. However, there is evidence that the plaintiff was charged with having remained absent without leave for 120 hours between 27 June and 2 July 1957, found guilty of the charge and confined in the cells for 7 days.

21 In August 1973 the plaintiff was serving on HMAS Attack. He was referred to a psychiatrist, Dr Eastwell, on 31 August 1973. The clinical notes relating to this referral made by Captain Strickland, a medical officer, are as follows:

22 On 3 September 1973 Lt Burrell, the Commanding Officer of HMAS Attack, filled out a “Report on a case referred for psychiatric examination”. The report stated that the plaintiff had been serving under his command since 30 July 1973. Under the heading “Mental outlook and personal habits” the report states:

23 In his evidence the plaintiff denied that he had beaten his wife while under the influence of alcohol and was unable to explain how this allegation might have arisen. Nor did he believe that other personnel had lost respect for him. He stated that, although he now realised that alcohol was interfering with his life, he did not believe that was the situation in 1973.

24 The clinical findings by Dr Eastwell of 14 September 1973 are as follows:

Diagnosis

I recommend that reposting to the south would ameliorate this man’s symptoms which flow out of fairly serious domestic strife. I am concerned that the family life be preserved – this is the first time difficulties have occurred.”

25 The plaintiff accepted the truth of the account given by Captain Strickland set out above, although he could not recall him. He confirmed that he was having lot of domestic problems in 1973 associated with not seeing his wife frequently. The plaintiff acknowledged that the strained domestic relationship with each of his three wives was due to his consumption of alcohol. However, he did not accept that his alcohol consumption was a result of his domestic problems. He did not remember seeing Dr Eastwell.

26 The plaintiff was then posted to HMAS Nirimba in the suburbs of Sydney. In January 1974 he was referred to Dr Rowe, a psychiatrist, to review his situation in light of the problems experienced by the plaintiff when stationed at HMAS Attack. On 4 February 1974 Dr Rowe reported:

27 During the course of his evidence the plaintiff was cross-examined about the examination by Dr Rowe but could not remember seeing him. When asked about his mental state in 1974, the plaintiff said, “I thought it was all right sir”. He accepted that he did not regard himself as having any psychiatric disability at the time. The following exchange then took place:

Q. As far as you were concerned there was nothing wrong with you?

A. No. I was drinking the same amount though sir, I didn’t……

Q. If you have been at that stage suffering from nervous shock you would have been able to tell any psychiatrist that fact, wouldn’t you?

28 The plaintiff was then cross-examined about the circumstances in which he came to be described as suffering from “nervous shock” in 1957 and which have been referred to earlier in this judgment. It is unnecessary to refer again to that incident or the plaintiff’s explanation for it. However, the plaintiff maintained that he had never used the expression “nervous shock” to either his treating doctor or to the medical officer to whom he reported on his return to his ship. He said that he did not know what the term meant. He presumed that the term had been used in a letter given to him by the medical practitioner he had consulted.

29 In December 1976 the plaintiff sought a change in his position in the Navy for the purpose of taking up recruiting duties. A psychologist, A.J. Gallimore, interviewed him in respect to this application. He noted that the plaintiff “smelt vaguely of alcohol (at 10.00 am!)”. He commented, “Motivation is basically for a change in job. His wife has put pressure on him to get out but he’s going to stay in at least for current engagement (mid 79)”. The plaintiff was assessed as being “only marginally suitable”. He was unsuccessful in obtaining the transfer.

30 In October 1978 the plaintiff was examined by a physician in respect of his hypertension. The doctor noted that the plaintiff “smokes 30 cigarettes a day and admits to about a dozen cans of beer over the weekend”. He suggested that the plaintiff should reduce his alcohol intake.

31 The plaintiff left the Navy in 1979. Thereafter he was employed as a security officer (1980), a barman (1980-1982), a storeman with Queensland Independent Wholesalers (1982-1986), a storeman with Clark Wholesalers (1986-1987), a storeman with TAFE (1988-1998) and finally as a watchman (2000). He has been unemployed since 2000.

32 In 1998 the plaintiff came to make the acquaintance of a welfare officer at the Geebung RSL Club named Baker. At his suggestion and with his assistance the plaintiff completed a Lifestyle Questionnaire produced by Veteran Affairs in relation to a claim for a pension for injuries that were “war and/or defence caused”. The plaintiff’s disabilities were listed as “hearing – back pain – pain in legs all the time – shortness of breath – exertion build up B/P.” It was claimed that these disabilities occurred all of the time. In respect of the affect of the disabilities on his social life, the document stated: “no social life at all. I drink at home by myself”. In the space for listing the main ways in which the disability affected the way of life the document stated:

33 On 16 December 1998 Mr Baker wrote to Veteran Affairs complaining of the low assessment made of the plaintiff’s disabilities as a result of the information contained in the questionnaire. Relevantly the letter stated:

CIGARETTE SMOKING (PERIPHERAL VASCULAR DISEASE) – even though his smoking started in 1956 after joining up, through various reasons his smoking increased to 20 per day by 1972 and then to 40 per day by 1979, at the time of his discharge. This increase should be taken into consideration.”

34 The plaintiff was cross-examined about the reference in this letter to his “serious” drinking commencing in the period after 1972. When asked where Mr Baker obtained that information, the plaintiff answered, “Probably from when I went on hypertension pills sir, when I was in the Navy, probably around 1972”. He denied that his “serious” drinking commenced after 1972 and he could not explain why Mr Baker made that statement.

35 The plaintiff made a further application for benefits to Veteran Affairs in 2002. Again Mr Baker, who was the plaintiff’s “nominated representative”, filled out the questionnaire on his behalf. One of the disabilities claimed was hypertension. In that part of the form that asked how service caused or contributed to the disability Mr Baker wrote, “alcohol related still drinks everyday”. A further disability relied upon was described as “Anxiety disorder nervous disorder”. In describing the signs and symptoms of that disability Mr Baker wrote, “bad dreams of Melbourne/Voyager collision in 1964”. In relation to how the service caused or contributed to that disability, Mr Baker wrote, “Collision with Melbourne/ Voyager in 1964”. In relation to this disability in answer to a question asking “When did you first become aware of the signs or symptoms of the disability…?”, Mr Baker wrote, “1964”.

36 The plaintiff was cross-examined about this document as follows:

Q. Did you tell [Mr Baker] that the disabilities were anxiety disorder and nervous disorder?

A. I would have said that sir, probably upset, yes.

Q. That means the same to you. Upset means the same as anxiety or nervous disorder?

A. Yes, things that worry me are disorders.

37 The plaintiff was then cross-examined about the answer “1964” to the question about when he first became aware of the signs and symptoms of the disability as follows:

Q. You’ve said that you first became aware of the signs and symptoms of the disability or aggravation of the disability in 1964?

A. Yes.

Q. Was that true?

A. That’s when the event occurred sir.

Q. But is that when you first became aware of the signs and symptoms of the disability?

A. No.

Q. When was it that you first became aware of the signs and symptoms of the disability?

A. I started looking at it very seriously, sir after my second divorce.

Q. Which was when?

A. I think it was ‘78, I think

Q. So that it was in 1978…..

A. I think.

Q. that you became aware…..

A. Sorry, I don’t think it would have been. Might have been ’78, I am not really sure sir.

Q. Was around about ’78?

A. Yes sir.

Q. It was at that stage that that you became aware that you were having symptoms that resulted from the effect of the collision upon you?

A. No sir.

Q. Isn’t that what you just said?

A. No sir. What I was trying to say to you sir, was that’s when I decided that something really bad must be wrong with me after two divorces.

Q. When you said something must really be wrong with me, you mean something must be wrong with you psychologically?

A. Probably yeah.

Q. And included in what might be wrong with you were problems of anxiety?

A. I suppose so, yes.

Q. Bad dreams?

A. Yes.

Q. And all of the things you told Dr Hopwood about?

38 There was further cross-examination as to when it was that the plaintiff recognised that he had suffered an injury as a result of the collision as follows:

Q. Mr Shaw, is it the position that some time in the 1970’s, you came to a realisation that you had psychological problems?

A. I’d probably say that’s correct, sir

Q. At about that time you recognised that those problems included dreams of the “Melbourne”/“Voyager” collision?

A. No sir, I had dreams before then.

Q. But you associated the dreams in 1978 with the collision. When you realised there was something wrong with you. You put two and two together?

A. No sir, I had the dreams before then and I knew what I was dreaming about.

Q. About the collision?

A About being in the water.

Q. You realised in 1978 that the dreams that you were having were symptoms of an upset, as you put it?

A. Yes, sir.

Q. It was the divorce from your second wife that informed you that there was something wrong with you, that you needed some help with?

A. Well I thought there must be something wrong if two of them had gone, sir.

Q. What was wrong was that psychologically you didn’t feel you were right?

A. I thought I was fine. They didn’t think I was right, sir.

Q. You realised in 1978 that their analysis was better than yours?

A. Possibly, yes sir.

Q. What did you do about that?

A. Nothing.

Q. Why not?

A. What could I do?

Q. Go and get some assistance?

39 On 15 October 2002 Veteran Affairs made a decision in answer to the application made on the plaintiff’s behalf by Mr Baker the effect of which was to deny all claims except the partial loss of hearing. In respect of a claim for Post Traumatic Stress Disorder arising from the collision between the Voyager and the Melbourne, the assessor determined, “Although there is a history of having experienced a severe stressor as defined in the Statement of Principles, this did not occur on eligible service”. A similar finding was made in relation to the claim in respect of alcohol dependence. Under “Psychiatric disorder” in respect of that disability it is stated:

40 The main contention of the Commonwealth in respect of s 60I is that the plaintiff knew at least by 1978 that he was suffering from a psychiatric disorder even though he may not have been able to identify it. He knew after his second marriage failed that there was something wrong with him of a psychiatric nature that he referred to as his “disorders”, being things that upset or worried him. The Commonwealth stresses that it is not the case that the plaintiff would be unaware of the nature and extent of his injury for the purpose of the section simply because he could not put a label on it, such as Post Traumatic Stress Disorder: Commonwealth v Nelson [2001] NSWCA 443 at [68].

41 It seems clear that the plaintiff was aware within the limitation period of many of the personal injuries of which he now makes complaint and that are set out in the particulars of injury above, even though he might not have been aware that they amounted to personal injuries for the purposes of the section. This is notwithstanding that the applicant asserts that he is suffering from psychiatric rather than physical injuries: cfCommonwealth of Australia v Dinnison (1995) 56 FCR 389 at 402.

42 It is clear that the plaintiff did not understand that he was suffering from a psychiatric illness. But he was aware from 1978 that his symptoms, including his irritability and anxiety, arose from a psychological problem although he did not know what it was. He also knew that his use of alcohol to excess was related the injury. When asked why he did not seek treatment in 1978 after his second divorce even though he believed that there was something wrong with him, he said in effect that he would be told to stop drinking. I find that the plaintiff was aware during the limitation period of the nature of his injury in that he was aware of its symptoms, understood that it was a psychological rather than a physical injury and realised that it would have continuing consequences: see CRA Ltd v Martignago (1995) 39 NSWLR 13 at 20.

43 However, I do not find that the applicant was aware of the extent of his injury. I appreciate that in order to have such an awareness it is not necessary that the person understand or foresee the exact course that the injury might take over time: Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1 at 14. However, it seems the applicant must have some understanding of the ramifications of the injury in order to understand its nature and extent for the purposes of the section and I do not believe that the applicant had that type of knowledge about his injury even though he had a general awareness of the kind of injury it was.

44 In any event I am satisfied that the plaintiff was not aware of the likely connection between his injuries and the collision. I accept that he understood that he was having bad dreams arising from the collision, at least insofar as they reflected his fear of drowning at the time. He also knew that he was drinking alcohol to be able to sleep without having these dreams. But the understanding that he had of the connection between those symptoms and the collision did not alert him to the fact that the more grave symptoms from which he suffered, such as his irritability, anxiety and his general increase in the misuse of alcohol, were related to the effects upon him of the collision and finding himself thrown into the water in a situation in which he feared drowning. I am satisfied that he did not come to that understanding until 2002 after he obtained legal advice and was examined by Dr Hopwood.

45 I should indicate that generally I found the plaintiff to be a reliable witness and I believe he was attempting to be an honest one. The concessions that he was prepared to make in relation to his understanding of his problems in 1978 seem to me to act favourably for him in this regard. The fact that he told lies about his failure to return to ship in 1957 when he was aged 17 had no impact upon me when assessing the plaintiff’s general credibility. Ultimately the Commonwealth did not assert that he was a dishonest witness.

46 The plaintiff has satisfied me that during the limitation period he was at least unaware of the connection between the injuries in respect of which he now claims compensation and the collision between the Melbourne and the Voyager. The application is made within three years after the plaintiff became aware (or ought to have become aware) of all the three matters in s 60I(1)(a). I, therefore, turn to s 60G(2).

47 Before extending the limitation period the plaintiff must satisfy me that it would be just and reasonable to do so. I should refuse the application if granting it would result in significant prejudice to the defendant: Holt v Wynter (2000) 49 NSWLR 128 at [120] applying Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541. The notion of a fair trial is a relevant one and does not mean a trial that is perfect or ideal but “must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case” per Priestly JA at [79], see also McLean v Sydney Water Corporation [2001] NSWCCA 122 at [27].

48 The Commonwealth has pointed to the fact that it is impossible for it to call witnesses who might be able to comment upon the plaintiff’s pre-collision conduct so far as the consumption of alcohol is concerned or to the change, if any, in his level of drinking after the collision and over the period leading up to the plaintiff resigning from the navy. The Commonwealth complains that the plaintiff can simply go into the witness box and give his account without the Commonwealth having the means of challenging that evidence. It points to what is said to be the unreliability of the plaintiff in giving accounts of his consumption of alcohol which would impact on the ability of any psychologist to obtain a reliable account of the plaintiff’s history about events occurring almost 30 years ago.

49 Of course the plaintiff has the onus of proof in relation to his injuries and any unreliability will impact upon a court’s assessment of his claim. Inconsistent accounts of his alcohol consumption that he has given, or may give in the future, will not be assisted by the fact that he cannot call evidence that might support his account. It does not seem to me to be a significant unfairness that the Commonwealth may not be able to find or call people who might rebut the plaintiff’s assertions, such as any one of his wives. One of the difficulties that the plaintiff will have to meet is the evidence that might suggest that his excessive alcohol consumption and his anxiety was situational rather than chronic as the plaintiff’s evidence would tend to suggest. The medical records available to the Commonwealth seem to me to be sufficiently precise that they can be relied upon to test the plaintiff’s assertions even though those who made the records are not available to give evidence or cannot now be relied upon to add to the records by personal recollections.

50 A significant matter in those records is the referral of the plaintiff to a psychiatrist in 1973. There is available a statement of the commanding officer of HMAS Attack who can give evidence relevant to this matter. He recalls the plaintiff and that he had “alcoholic binges”. He is able to state that the plaintiff never mentioned to him anything about the collision or its effect upon him.

51 A number of the plaintiff’s Naval records have been destroyed. These are referred to in the affidavit of Mr Emmerig, the solicitor for the Commonwealth, dated 10 March 2005. Given the nature of those files and the subject matters to which they relate, I think it is speculative at best that the loss of those files have caused prejudice to the Commonwealth in defending the claim. It seems to me realistically that it is highly unlikely that any of the files contain material that would be relevant to the issues arising if the claim were permitted to proceed. It was submitted on behalf of the plaintiff that the Commonwealth must take the consequences of destroying files of a person who was on the Melbourne at the time of the collision having regard to the history of litigation since that event. This was a view expressed by Barr J in Smith v The Commonwealth [2004] NSWSC 873 and noted by Studdert J in Blythe v The Commonwealth [2005] NSWSC 721. I am content to determine the matter on the basis that the destruction of the records did not give rise to any significant prejudice in this case.

52 There is an absence of evidence available to the Commonwealth by way of records or personal recollections of examinations of the plaintiff by various medical practitioners upon whom the plaintiff attended over the years. It is difficult to believe that such evidence, if it were available, could assist in the resolution of the issues that would arise on a hearing of the claim. The plaintiff never suggests that he raised his anxieties or other symptoms of which he was aware over the period after his discharge from the army with any medical practitioner. He feared that he would be advised to give up drinking alcohol. It is perhaps significant that the disabilities of which he complained in the lifestyle questionnaire in 1998 were largely physical symptoms with which the current claim is not concerned. Similarly the plaintiff accepts that he never raised issues relating to the collision with any medical practitioner because he found it too painful to talk about them. As I understand the evidence, there is no suggestion that the plaintiff raised any of the issues raised in the claim with any medical practitioner either within the Navy or in civilian life.

53 In any event the absence of medical records is likely to be a matter that will tell against the plaintiff’s case rather than prejudice the Commonwealth. As Dr Skinner points out in her report to the Commonwealth of 15 August 2005, one of the indicators of Post Traumatic Stress Disorder is persistent symptoms of increased arousal and anxiety and the absence of any medical records indicating such symptoms makes it difficult, if not impossible, to establish the existence of the disorder.

54 The Commonwealth also complains of the absence of any work records relating to the plaintiff for the period after he was discharged from the Navy. There is available a statement of a witness who was the plaintiff’s supervisor for a period of about 9 years up to 1998 when the plaintiff was working for TAFE and who can give information about the nature of the plaintiff’s employment over that period. It was shortly after this time that the plaintiff ceased to work. Prior to the employment with TAFE the plaintiff held a number of unskilled positions for relatively short periods of time. In light of the material available in respect of his position at TAFE and having regard to the nature of the other positions the plaintiff held, it seems to me that the prejudice to the Commonwealth by the absence of this material would not result in an unfair trial notwithstanding the gaps in the material concerning the plaintiff’s work history since leaving the Navy: cf Blyth v The Commonwealth [2005] NSWSC 721.

55 I understand that I have to consider the aspects of prejudice to the Commonwealth generally and not simply having regard to each complaint independently. I also appreciate the significance of presumptive prejudice that arises simply by the effluxion of such a lengthy period of time since the events to which the claim relates. However, I am persuaded that the trial would not be relevantly unfair to the Commonwealth notwithstanding the delay. In my opinion it is just and reasonable to grant an extension of the limitation period.

56 Pursuant to s 60G(2) of the Limitation Act I extend the limitation period for the cause of action in these proceedings to the date upon which the statement of claim was filed, being 4 October 2004.

57 No submissions were made to me on the question of costs of the application either orally or in writing. I reserve the question of costs.

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Citations

Shaw v Commonwealth of Australia [2005] NSWSC 1027

Most Recent Citation

Duncan v Commonwealth of Australia [2006] NSWSC 822

Cases Citing This Decision

3

Commonwealth of Australia v Shaw [2006] NSWCA 209

Smith v The Commonwealth of Australia [2006] NSWSC 956

Duncan v Commonwealth of Australia [2006] NSWSC 822

Cases Cited

10

Statutory Material Cited

1

Commonwealth v Nelson [2001] NSWCA 443

John Giang Dieu Kook v Regina [2001] NSWCCA 122

Blyth v Commonwealth [2005] NSWSC 721

CITATION:	Shaw v Commonwealth of Australia [2005] NSWSC 1027
HEARING DATE(S):	25/08/2005, 26/08/2005
JUDGMENT DATE :	14 October 2005
JUDGMENT OF:	Howie J at 1
DECISION:	The limitation period for the cause of action is extended to the date the statement of claim was filed being 4 October 2004.

CATCHWORDS:	Limitations of actions - Limitation Act 1969 s 60G, s 60I - Knowledge of plaintiff as to injuries, their nature and extent and connection with the defendant's act or omission - whether extension would result in significant prejudice to the defendant.
LEGISLATION CITED:	Limitation Act 1969 - ss 60G, 60I
CASES CITED:	Commonwealth v Nelson [2001] NSWCA 443 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 CRA Ltd v Martignago (1995) 39 NSWLR 13 Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128 Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 McLean v Sydney Water Corporation [2001] NSWCCA 122 Blyth v The Commonwealth [2005] NSWSC 721
PARTIES:	Brian John Shaw v Commonwealth of Australia
FILE NUMBER(S):	SC 20444/2002
COUNSEL:	M. Elkaim SC with J. Sharpe - Plaintiff C.T. Barry QC with G. Woods - Defendant
SOLICITORS:	Hollows Lawyers - Plaintiff Blake Dawson Waldron - Defendant