Singline v Commonwealth of Australia

Case •

[2007] NSWSC 900

•

27 August 2007

No judgment structure available for this case.
CITATION: Singline v Commonwealth of Australia [2007] NSWSC 900
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 25/09/06-29/09/06, 03/10/06-04/10/06, 11/10/06-13/10/06
 
JUDGMENT DATE : 
27 August 2007
JUDGMENT OF: Rothman J
DECISION:

(1) Extension of time is granted sufficient to enable the plaintiff to file his Statement of Claim on 18 September 2001.

(2) Judgment for the plaintiff.

(3) The defendant shall pay damages to the plaintiff in the sum of $1,244,096, including interest.

(4) The defendant shall pay the costs of the plaintiff of and incidental to these proceedings, as agreed or assessed.

(5) The parties have liberty to approach on the basis of any perceived miscalculation of interest or principal and for any special order relating to costs.

(6) Otherwise the proceedings are dismissed.
CATCHWORDS: NEGLIGENCE - Melbourne/Voyager collision claim for damages - breach of duty admitted - issue of causation - general anxiety and alcoholism - future career in Navy - extension of time granted - damages awarded.
LEGISLATION CITED: Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW)
CASES CITED: Commonwealth of Australia v Shaw [2006] NSWCA 209
Commonwealth of Australia v Smith [2005] NSWCA 478
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322
PARTIES: P: Geoffrey Noel James Singline
D: Commonwealth of Australia
FILE NUMBER(S): SC 20783/2001
COUNSEL: P: Mr G. Melick SC, Mr A. Gemmell
D: Mr R. Williams QC, Mr D. Brogan
SOLICITORS: P: Mr D. Forster (Hollows Lawyers)
D: Mr E. Turkovic (Australian Government Solicitor)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      ROTHMAN J

      MONDAY 27 AUGUST 2007

      20783/01 GEOFFREY NOEL JAMES SINGLINE v THE COMMONWEALTH OF AUSTRALIA

      JUDGMENT

1 HIS HONOUR: By Statement of Claim filed 18 September 2001, the plaintiff, Geoffrey Singline, sought to commence proceedings against the Commonwealth of Australia (the Commonwealth) seeking damages said to have been caused by the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964.

2 As a consequence of the time between the accident, which is said to have caused the damage, and the filing of the Statement of Claim, an extension of time is sought for the bringing of the claim. This judgment deals with: the extension of time application; to the extent that an extension of time is granted, the breach of duty by the Commonwealth; and, if both of the foregoing issues be determined in favour of the plaintiff, the amount, if any, of damage arising from the breach.

Facts: Uncontentious matters

3 As already stated, there was a fairly infamous collision between two naval vessels, the HMAS Melbourne and the HMAS Voyager. Each of them was part of the Australian Navy and therefore controlled by the Commonwealth. The Commonwealth does not dispute that the collision between the two vessels involved negligence (by one or more agents of the Commonwealth) and that therefore there was a breach of duty owed to its service personnel damaged as a consequence. The Commonwealth, however, opposes the extension of time and submits that no damage was occasioned to the plaintiff from, what it says was, his minor involvement in the collision. It is necessary to deal in some detail with the history of the plaintiff, both before and after 10 February 1964, the date of the collision.

4 The plaintiff was born in Launceston on 19 November 1941. He attended school locally until he was 15 years of age. At that age he worked as a painter's labourer for approximately 12 months. On 4 December 1958, the plaintiff sought to enrol in the Navy, underwent a medical examination that he passed, and subsequently joined the Navy on 12 January 1959.

5 From 12 January 1959 until 18 March 1959, the plaintiff underwent training at HMAS Cerberus. He was then posted to HMAS Albatross from 19 March 1959 until 10 October 1960. On 12 July 1959, while at HMAS Albatross, he was promoted to Naval Airman Class II. On 11 October 1960, the plaintiff commenced service on HMAS Melbourne. While stationed on HMAS Melbourne, on 19 March 1961, he was reported to be "under the influence of alcohol" at a time when the vessel was in Ceylon. He remained on HMAS Melbourne until 24 August 1961, when he was posted to HMAS Penguin for training. That posting concluded on 26 September 1961 and he returned to HMAS Melbourne on 27 September 1961 where he stayed until 1 February 1962.

6 On 2 February 1962, he commenced further training at HMAS Albatross, where he remained until 27 December 1962. During that time the plaintiff contracted a sexually transmitted disease, which, when questioned about the circumstances for the purpose of medical treatment, he informed the Navy he contracted while "under the influence of alcohol". I will return, later in this judgment, to alcohol consumption, as an issue raised by the Commonwealth affecting, it is said, both the credibility of the plaintiff and the damage that was said to have arisen from the collision.

7 On 28 December 1962, the plaintiff returned to HMAS Melbourne. On 16 March 1963, while the plaintiff was on HMAS Melbourne and in South-East Asia an incident occurred with aircraft, referred to in the proceedings as the first Gannet incident. On 25 April 1963, there was another similar incident, referred to as the second Gannet incident. The plaintiff remained on HMAS Melbourne until 8 July 1963, at which time he transferred back to HMAS Albatross. He remained at Albatross until 6 January 1964 immediately after which he returned to HMAS Melbourne, namely, on 7 January 1964. He remained on HMAS Melbourne until 7 December 1964. During that last time, namely, on 10 February 1964, the collision occurred. I will return to the circumstances surrounding the collision and to the details, in brief, of the two Gannet incidents. I will deal with these circumstances because, in the issues agitated in these proceedings, it is necessary to compare and contrast the two sets of incidents and the impact each had on the plaintiff.

8 The plaintiff married on 19 December 1964 and his first daughter, Margaret, was born on 13 December 1965. His second daughter, Bernadette, was born on 9 October 1967. A third daughter, Angela, was born in 1968 and his fourth daughter, Deanna, was born on 4 May 1973. The plaintiff had been promoted to Leading Airman in June 1966 and he continued at that rank until, on 12 January 1968, he was discharged from the Navy.

9 Between January 1968 and November 1972, the plaintiff worked at a furniture store as a storeman earning $144 gross per week. The furniture store was called "Patterson's". In 1972 his employer at Patterson's spoke to him about alcohol abuse. The attitude of the plaintiff was that he did not have a drinking problem. He was also diagnosed with epilepsy.

10 Between 20 November 1972 and 22 August 1975, the plaintiff was employed by Myer Stores in Launceston as a carpet salesman earning $160 per week. Between August 1975 and 30 December 1978 he was employed by Uniroyal Pty Ltd as a staff alternative earning, with commissions, between $159 per week and $203 per week. This was converted into a sale contract arrangement between January and March 1980. Between April 1980 and June 1981, Northern Wholesalers employed the plaintiff, as a storeman. Between July 1981 and August 1982, Majestic Fireplaces in Launceston employed the plaintiff, as a salesperson. Between September 1982 and 23 May 1985, S. J. Roberts and Young’s Furniture House employed the plaintiff, as a salesperson.

11 The plaintiff continued to work as a salesperson at Doug's Discount Furniture between June 1985 and November 1987, during which time he was paid $17,563 per year. He was unemployed from approximately 5 January 1988 until August 1988 and then employed casually or temporarily as a cleaner or storeman: for Mowbray Golf Club (22 February 1988 to 24 March 1991, as a part time cleaner); B. & W. Woodward (April 1988 to October 1989, as a casual cleaner); Elco Agencies (August 1988 to January 1989, as a casual storeman); David Collins Cleaning in Launceston (August 1988 until November 1988, as casual); and thereafter commenced working with the Department of Education as a cleaner in a primary school at Waverley. At the time of the trial, he was continuing to work in that capacity. The last mentioned job commenced on 26 February 1991.

The Plaintiff

12 As is obvious, the plaintiff claims psychological injury. The plaintiff was not himself involved in any physical injury associated with the collision. It is claimed that the plaintiff suffered either or both Post Traumatic Stress Disorder (PTSD) or general anxiety as a result of the collision and the failure of the defendant to deal in an appropriate manner with its effect on the plaintiff.

13 The disaster claimed the lives of 82 sailors and while the plaintiff was on HMAS Melbourne at the time of the collision, he was not involved in the rescue operation for survivors of the destroyer HMAS Voyager. The plaintiff’s duty, at the time of the collision, was on the starboard deck of the Melbourne.

14 As is clear from the above statement of facts, the plaintiff was a very young man at the time he joined the Navy and was a fairly young man (22 years of age) at the time of the collision.

15 Significant evidence, independent of the plaintiff, has been adduced as to the characteristics of the plaintiff prior to the date of the collision. The plaintiff himself also gave such evidence.

16 From the evidence that has been adduced, it is clear that the plaintiff was an exemplary character with a friendly, pleasant, easy-going, vibrant and affable nature. He is so described by a number of independent witnesses.

17 It is also necessary to look at his drinking habits. Prior to joining the Navy he was only 15 years of age. The plaintiff gives evidence that he had only got drunk once before joining the Navy (Transcript page 32.41). This evidence was given in the context of a description of himself, for that period, as "happy-go-lucky", "willing to get on with everyone", "willing to enjoy life", with "quite a few friends", and a lifestyle that included "a bit of fishing, used to go to the movies, ride our bikes down to the beach, go swimming, play a bit of sport".

18 It is a description that was corroborated by others. It is true that the plaintiff describes his drinking habits, even when in the Navy, prior to the collision, as sober. I find that the plaintiff’s drinking habits prior to the collision were essentially ones that could be described as social drinking. Such descriptions are necessarily relative, not absolute. On the evidence before the Court, I find that the plaintiff drank alcohol, prior to February 1964, on social occasions and in a social context. Generally that would mean he would go ashore, have a couple of drinks and go out with other sailors and civilians. Occasionally, probably not unlike other sailors, he would drink to excess when ashore and in the company of others, although it did not happen often. There were times when the plaintiff engaged in conduct when drunk that he would not have engaged in if he were sober. However, I find, on the evidence before the Court that I accept, that the plaintiff's drinking was social drinking and he did not, prior to the collision, have a drinking problem.

19 Mr Sommer, a witness called by the plaintiff, who was, prior to the collision, a friend of the plaintiff, gave evidence that he did not recall ever observing the plaintiff being affected by alcohol (Transcript page 371.15). He described the conduct of the plaintiff in a way that makes clear that the plaintiff was a particularly sober, impressive young man. He was described by Mr Sommer as a person who was very easy to get along with, who loved the Navy, was "all for it, for promotion, anything like that." (Transcript page 371.25)

20 It is perhaps appropriate that I describe Mr Sommer. Mr Sommer was born in Germany in 1942 and came to Australia in 1959. He joined the Australian Navy in 1963 and left the Navy in April 1983. At the time that he retired from the Navy he had attained the rank of Warrant Officer. He had an extraordinary career in the Navy, as is obvious from his commission, and was accepted by the Commonwealth as a person with a high standard who had "an outstanding career in the Navy". He has at least 10 decorations or medals including medals for bravery and he had sat more than 20 courses during the time that he was in the Navy. I accept his evidence and his expertise.

21 Mr Sommer described the plaintiff as a person who "might have been a lifer". He was "very immaculately dressed, very Navy orientated." Of the 23 people who, prior to the collision, shared the hut with the plaintiff and Mr Sommer, the plaintiff was described, in relative terms, as having "a cleaner and a very neat outlook." Mr Sommer describes the commencement of their relationship in the following terms:

          "After two days being there as a recruit nobody wanted to know me, we became quite good friends, he took me under his wing, he looked after me."

22 The plaintiff was senior to Mr Sommer, at the time, and Mr Sommer described him as a person from whom he could learn and who helped him quite considerably. Mr Sommer and the plaintiff socialised; going to the "wets" (a reference to the wet canteen where alcohol may be consumed) one to three times a week. Mr Sommer made clear that he, Mr Sommer, consumed alcohol at that time (up to 10 middies, i.e. 10 ounce glasses) in a session. On the other hand, Mr Sommer described the plaintiff as being relatively sober compared to others. He described the plaintiff as participating only for the purpose of socialising and not drinking "to the extent that most of the guys did, he mostly went down there for pool and darts." He described the plaintiff's drinking habits as having one or two drinks in a session.

23 Mr Sommer was with the plaintiff on the Melbourne between July and October 1963. This is an extremely relevant period. It was after both Gannet incidents and prior to the collision with the Voyager. After the collision, understandably HMAS Melbourne went into dry-dock and was there until approximately mid-May 1964. From that time the Melbourne performed sea trials until approximately 22 June 1964 when it sailed to South-East Asia for exercises with Allied fleets. Mr Sommer rejoined the Melbourne on 5 March 1964 (while it was in dry-dock) and remained on the Melbourne until the middle of 1965 when he was posted to the United States.

24 When Mr Sommer first saw the plaintiff on rejoining the Melbourne in 1964, the plaintiff “was a different person”. Mr Sommer described the plaintiff, in the period on or shortly after 5 March 1964, as a changed man. This, of course, was almost immediately after the date of the collision. When Mr Sommer first saw the plaintiff, the plaintiff failed to acknowledge him. He estimates that he would have seen the plaintiff more than 10 times over the next months. He describes him as "quiet, more withdrawn in himself, didn't seem the same guy I used to know." When asked to describe his general attitude Mr Sommer responded: "I don't think he could give a shit." He made clear that he did not see the plaintiff very much on the Melbourne but that he used to go to "the Rockers", which is a hotel in Woolloomooloo. Mr Sommer also observed that on those occasions the plaintiff "was nearly always drunk".

25 There is some dispute as to the dates upon which these events were said to have occurred. The Commonwealth submits that the dispute is significant. In his initial evidence, Mr Sommer suggested that it was from about July 1964 onwards. From the records available (of which there are many), the dates to which Mr Sommer was referring were the dates during the time that the Melbourne was in dry-dock and on sea trials, which was between 5 March 1964 and 22 June 1964. The significance suggested by the Commonwealth relates to the capacity of Mr Sommer to observe the plaintiff. Mr Sommer in cross-examination accepted the proposition put to him by the Commonwealth that the opportunities for Mr Sommer to make observations of the plaintiff were limited.

26 The difficulty with Mr Sommer's acceptance of the proposition of the Commonwealth is that it ignores the socialising that was done while the Melbourne was in dry-dock and while each of Mr Sommer and the plaintiff were on shore leave between sea trials. It cannot be expected that Mr Sommer would remember the details of the dates and times that he could observe the plaintiff. Notwithstanding the acceptance by Mr Sommer of the limited opportunities available to him to make observations of the plaintiff, I accept the evidence of Mr Sommer of the attitude and demeanour of the plaintiff as an accurate description of the plaintiff immediately after February 1964. It is obvious from the evidence of Mr Sommer, who is no longer a friend of the plaintiff or in any way associated with him, that the overwhelming impression of the plaintiff was as described by him and I accept that description.

27 Other witnesses corroborate Mr Sommer's description of the plaintiff before and after February 1964. Mr O'Donnell was also a naval colleague of the plaintiff, who met the plaintiff in 1959 when they were both teenagers. He described the plaintiff in similar terms to the description given by Mr Sommer. Until the end of 1963, according to Mr O'Donnell, the plaintiff was a happy fellow who was never in any trouble, behaved himself and did not play up with alcohol – "a pleasant guy". Mr O'Donnell confirms that during that period the plaintiff was an immaculate dresser; a person who was dedicated to his career; a person who did not get into trouble.

28 Mr O'Donnell met the plaintiff again between 1964 and 1968, by which time he had changed significantly and "he was an entirely different guy and it staggered me a bit to find this different person." Mr O'Donnell described the plaintiff in the latter period as "surly", "quite sarcastic", as having "a chip on his shoulder" totally contrary to the recollections that Mr O'Donnell had of him as a younger person. He described him as "obviously drinking much more heavily".

29 I do not recite all of the evidence to this effect but the comparison of the plaintiff before and after February 1964 by all of the persons who gave evidence is to the same effect. The comparison is startling. It is also, as can be seen from the above, a change that occurred almost immediately after the date of the collision and continued throughout the remainder of the plaintiff's life: see the evidence of witnesses McGowan (page 271, 272, 273, 274); Browning (page 547, 548, 549); van Amstel (page 570); Stewart (page 389, 390, 391, 392, 393, 395); Bovill (page 167, 168, 169); Murray (page 383,384); Margaret Singline (page 403, 404); Davis (page 442); and Lowe (page 554).

30 Prior to the date of the collision the descriptions are consistent with the descriptions recited from Mr Sommer and Mr O'Donnell. The plaintiff is variously described as a happy fellow, a pleasant guy, friendly, very easy to get along with, immaculately dressed, a good dresser, articulate, well-spoken, confident, full of life, a person who would help anybody. After the collision he is described, again, in terms similar to that repeated above from the evidence of Messrs Sommer and O'Donnell. Those descriptions are to the effect that, after the date of the collision, the plaintiff was irritable, surly, erratic and embarrassing in his role as President of the Fleet Air Arm Association of Tasmania; a loner; certainly not friendly; having no interest in activity or interaction; harsh on his family; withdrawn; not the same guy; a bastard; no longer well presented; nervy; having the shakes; volatile and angry; abusive and aggressive; controlling; solitary; moody; disinterested in family activity; dictatorial; emotionally withdrawn; hardly ever displaying affection; irritable; emotionally reclusive with his family; dishevelled; scruffy; aggressive and irritable; withdrawn and aloof.

31 I accept that there was a startling and distinct character change in the plaintiff, as described, that occurred immediately after the collision.

Causation

32 The plaintiff was a teenager at the time that he joined the Navy. Commonsense and experience tell us that people change over time. However, a change as dramatic as that described by the witnesses observably occurring at the very time of the collision must be more than coincidence. This is not conjecture. The expert witnesses called by both the plaintiff and the Commonwealth confirm it.

33 Dr Roldan was called by the Commonwealth. His report was tendered and relied upon by the Commonwealth. In cross-examination the following exchange occurred:

          "Q: Let's ignore the Navy record. I am putting to you a factual situation which if his Honour finds what I have just put you, that is moderate drinker to heavy drinker, immaculate uniform to dishevelled uniform, outgoing, gets on well with friends to becoming reclusive and angry and hard to get on with, if that's what his Honour finds as actual facts rather than what you attempt to read into his Navy records, would you not agree that would point to the collision being a significant factor in the change in his behaviour and appearance?
          A: I think, if his Honour finds that, he doesn't need my opinion in relation to the post-aetiology of these difficulties.
          Q: You say it's inherently obvious; it's attributable to the collision?
          A: I think if you adopt that view it's related to a temporal event that occurred.
          HIS HONOUR: It's unlikely that it happened by some other event that occurred in the meantime. If it was as extreme as Mr Melick has put it as at before the accident and as extreme as Mr Melick put it after the accident, it would be unlikely that would occur otherwise than because of the accident?
          A: Your Honour refers to an immediate onset of these difficulties after the accident?
          Q: Immediate or fairly soon thereafter, yes?
          A: I think scientifically you would have to adopt the view that the temporal relationship is self-evident.
          HIS HONOUR: It’s simple scientific reasoning I would have thought, Mr Melick."

34 The Commonwealth also called Professor Burroughs. His report was also tendered. In cross-examination the following exchange occurred:

          “Q: I am curious. You opine that the collision was not a major factor in Mr Singline's life. That, of course, was based upon the information you received from him and the documents. If the following facts are established: That he was a very moderate drinker prior to the collision and became a very heavy drinker after the collision; that prior to the collision he was immaculately dressed and had an outgoing personality and socialised well and after the collision his dress standard deteriorated markedly, he showed a distinct lack of interest and became aggressive and angry, that to you as a psychiatrist would indicate that the collision probably had, absent any other matters about that time, probably had a significant effect upon this man's life?
          A: Yes, I would have to say if that really was shown, you would have to say at that point in time it had an effect on him but I would still have to have a longitudinal history, not just a period of stress.”

35 The description in the immediately foregoing questions has been “shown”; and is accepted by the Court as an accurate description of the changes that occurred in the plaintiff. Moreover, I accept that a longitudinal history would show a continuing character prior to the collision that was consistent and a continuing long-term character after the collision of a different nature to that which was the case before, and that was also consistent, and went well beyond the immediate period of stress that followed the collision.

36 In short, the collision was causative of a dramatic and profound effect on the plaintiff. The precise description of that affect will be the subject of comment later in this judgment.

The Credit of the Plaintiff

37 The above findings as to the effect that the collision had on the plaintiff have been made with little recourse to the evidence of the plaintiff himself. Much of the focus of the case of the Commonwealth was on the credit of the plaintiff and the various versions of symptoms and events given by him over a number of years.

38 The Commonwealth submits that the Court should have regard only to "objective facts" being those facts that are not dependent on the plaintiff or those called on his behalf. Further, the Commonwealth contends that no fact that is "contaminated" by the processes of litigation ought be used by the Court to determine the effect of the collision on the plaintiff.

39 This submission, of necessity, requires the Court to disbelieve all of the witnesses who testified as to the character and behaviour of the plaintiff. The rejection of such evidence, in circumstances where no persuasive material is put to the Court on the credit of these witnesses, would be perverse.

40 While the best evidence may be objectively determined facts available otherwise than from witnesses called by either party, the witnesses who gave evidence as to the character of the plaintiff were not all witnesses that could be described as partisan. Mr Sommer is a prime example.

41 To reject the evidence of all witnesses because it is suggested that the objective facts show that the plaintiff is unreliable is as incorrect as to accept the plaintiff notwithstanding the existence of objective facts inconsistent with this testimony.

42 There is little doubt that the facts, objectively proven, are inconsistent with some of the history given by the plaintiff to various people over the years. The plaintiff sought, at least initially, to support some of that history in testimony. I do not, however, take the view that the plaintiff was deliberately lying in his evidence. Some of that evidence, inconsistent with objective facts, was, until faced with those objective facts, believed by the plaintiff. It was, it seems to me, the means by which the plaintiff justified his conduct. Most of the contradictions in evidence related to the attribution by the plaintiff of the cause of conduct. In that attribution the plaintiff, over the years, was wrong.

43 For example, the plaintiff attributed nightmares that he was experiencing to the first or second Gannett incidents. On the evidence before the Court, it is most unlikely that the Gannett incidents caused those nightmares. The attribution by the plaintiff of the cause of the nightmares was done for the purpose of making a claim to the Department of Veterans Affairs. Yet the nightmares did not commence, on the material before this Court, until after the collision between the Melbourne and the Voyager.

44 It is an unfortunate aspect of these proceedings that I am unable to rely in an unqualified way on the testimony of the plaintiff. But it is unnecessary to rely on his testimony to prove that which the plaintiff contends in the claim before the Court. Notwithstanding the qualifications that are necessary in accepting the evidence of the plaintiff, I find him generally a witness of truth and, by and large, reliable. His unreliability relates predominately to a history of a failure to accept the problems he had and the cause of them. He built up a resentment to the Navy and took the view it owed him for the problems in his life and his failure to reach what he considered was his potential. In some of that he was correct.

45 I accept, in part, the submission of the Commonwealth that I should give greater significance (especially because this is a "psychiatric" case) to objective facts. Apart from the state of the testimony, as I described above, the mental condition of the plaintiff has, in the past, and to some degree presently, denied him the ability to have insight into his own problems. That is part of the problem with the testimony, but it goes beyond that.

46 There are a number of "objective facts" affected by that issue. There are also objective facts that are uncontroversial and plainly true.

  • The plaintiff was a witness to the collision between the Melbourne and the Voyager;
  • The plaintiff was on duty on the flight deck at the relevant time;
  • In the Royal Commission questionnaire the plaintiff did not assert that he was disturbed by the relevant events, nor did he make such an assertion to the interviewing doctors at the time;
  • It cannot be expected that a person who is truly disturbed by events (in a manner which has a psychiatric impact) would have the insight to assert that fact, nor can it be expected that a rating in the Navy would disregard its culture to such a degree;
  • Notwithstanding the submission of the Commonwealth, the plaintiff did assert that he was frightened by menial tasks from the day after the collision;
  • There were times in 1961 and 1962 (and I infer 1963) when the plaintiff got drunk;
  • The plaintiff served his full nine-year term, being the term for which he had enlisted;
  • Notwithstanding the alleged emotional and/or psychiatric damage occasioned by witnessing the collision, the plaintiff was able to complete (if not improve his capacity to complete) required examinations for promotion in the Navy and his disciplinary record and behaviour after the date of the collision do not reflect a diminution in performance;
  • Navy medical records do not reflect physical or psychological damage;
  • Further there is no record of any complaint to the Navy, or any naval medical officer, which reflects or could be interpreted as indicating any psychiatric symptom, which complaint was made during the plaintiff's time in the Navy;
  • The plaintiff continued to serve on the Melbourne after the collision;
  • On discharge from the Navy in 1968 the plaintiff was medically examined and did not report any psychiatric symptom or injury;
  • On retiring from the Navy the plaintiff returned home to Launceston where he continues to live;
  • The plaintiff, save for one period of unemployment in 1988, was in continuous employment from the time he left the Navy until he retired from illness; the records of the plaintiff's general practitioners are available from 1968 and do not reveal any complaint of a psychiatric nature or related symptom until September 2001;
  • While the plaintiff was diagnosed with epilepsy in 1970 and prescribed medication which he continued to take until 2004 there is no record of any further epileptic related attacks after 1972;
  • The plaintiff contacted the Department of Veterans Affairs seeking details of entitlements in 1995;
  • The plaintiff was president of the Fleet Air Arm Association, Tasmanian Branch for three years from 1996 to 1999;
  • The plaintiff wrote (or wrote some of) a foreword to a book on HMAS Melbourne;
  • In 1989 the plaintiff applied to the Department of Veterans Affairs for a service pension arising from real and actual danger said to have occurred in Singapore;
  • The application to the Department was rejected;
  • In February 2000 the plaintiff and his wife separated;
  • In May 2000 the plaintiff was admitted to Launceston General Hospital for suspected cardiac problems at which time the plaintiff claimed he had smoked 30 cigarettes a day for 40 years and consumed four cans of beer a day for the same period;
  • In August 2000 plaintiff attended a counselling session, related to his marriage breakdown, with Ms Crewes;
  • The notes of Ms Crewes (who was a marriage counsellor) record the plaintiff saying that his drinking did not help the marriage, that he and his wife had lived separately for 10 years in the same house and had drifted into separate ways; the notes also record that the plaintiff claimed he drank to cope with the stress following his witnessing of the Voyager collision; the notes also record the plaintiff claiming to be angry and bitter over the refusal by the Department to pay a pension;
  • On 2 November 2000 the plaintiff completed disability claim forms in relation to his period in the Navy for psychiatric disability, substance abuse, epilepsy, hearing loss and a disability to the right knee. The aforesaid psychiatric disability and substance abuse was said to arise out of events in 1963 being service in the Far East. In 2000, in this claim, the plaintiff said he first became aware of the disability arising from substance abuse in 1968 or 1972, and from psychiatric disability in 1972;
  • Claims were made as to a knock on the head and an injury during 1963 and 1964, which caused the epilepsy and the injury to the right knee. There is no contemporaneous note of either injury;
  • On 2 November 2000 the plaintiff claimed to the Department of Veterans Affairs that he commenced drinking heavily, or regularly, during service in the Far East in 1963 "to relieve stress after witnessing" the Gannett incidents;
  • In late November 2000 the plaintiff's current solicitor, Mr Forster, contacted the plaintiff by telephone;
  • On 16 February 2001 in correspondence to the Department the plaintiff said he had vivid memories and dreams of the Gannet incident that "manifested in intensity" as the years proceeded;
  • The plaintiff saw Mr Forster in Melbourne in late January or early February 2001;
  • In late February 2001 the plaintiff withdrew the psychiatric and substance abuse disability claims;
  • On 7 August 2001 the plaintiff saw Dr Ratcliff, psychiatrist, as arranged by Mr Forster;
  • The plaintiff commenced counselling with the Vietnam Veteran's Counselling Service on 29 August 2001;
  • In September 2001 the plaintiff complained to his general practitioner of problems with insomnia and depression;
  • In September 2001 plaintiff read Dr Ratcliff's report and said that he realised for the first time that he was suffering a psychiatric condition;
  • Proceedings were issued on 18 September 2001.

47 The above dot points are derived from the written submission of the Commonwealth, adapted slightly, and as statements of fact are accepted by the Court. However, the above points do not deal with the evidence of the independent witnesses who have testified to the changes that occurred in the plaintiff in or immediately after February 1964.

48 The Commonwealth submits that the points (albeit expressed slightly differently) cannot support the proposition that the plaintiff experienced psychological symptoms after the collision. Of themselves, the points do not go so far. However, the necessary inference from the independent evidence is that psychological damage was suffered as a result of the collision.

49 Further, while the Commonwealth seeks to use the objective facts adumbrated in paragraph 46 above to suggest that the plaintiff changes his story to suit a particular claim he is making, that suggestion is available only if one ignores the evidence of the independent witnesses. There is no available inference that any of those witnesses is being untruthful or inaccurate in her/his recollection of the plaintiff. There is some minor inaccuracy in dates and places, but no more than one would expect after a period of up to 42 years.

50 When the objectively known facts are considered in the light of the independent evidence, they take on a different dimension. Assuming, as I do, on the basis of the material before the Court, that the plaintiff considered that the Navy was responsible for his predicament, it is obvious that the Voyager collision was not perceived by the plaintiff as the basis of a cause of action until 2001.

51 Judging from the demeanour of the plaintiff, and the facts that are otherwise known, I believe the plaintiff when he says that he experienced dreams and those dreams were not of the Gannett incident. I also consider that in truth they were dreams of the plaintiff's perception of the Voyager incident. That which is described in the dreams is not an historically accurate depiction of either. If the plaintiff were, as is suggested by the Commonwealth, wholly cozening for the purpose of improving or maintaining this action, then there is objectively proven conduct inconsistent with an attempt to deceive or an attempt to exaggerate the effect of the Voyager collision on the plaintiff.

52 It is necessary to deal in more detail with some of the aspects relevant to the events surrounding the plaintiff and his testimony in relation to them. Some of those aspects, while interesting, took up a considerable amount of time in circumstances where they were not directly relevant to anything other than the credit of the plaintiff.

The Gannet Incidents

53 As earlier outlined, the plaintiff was stationed on HMAS Melbourne during March and April 1963. During that time there were two incidents involving aircraft, referred to during the course of the proceedings as respectively the first and second Gannet incidents.

54 The historical accuracy of the account of the plaintiff is irrelevant for present purposes. So too are the details of the incidents. It is sufficient for present purposes to understand that, as a consequence of aircraft incidents, the Melbourne and its crew were required to rescue aircrew. The aircrew were picked up by helicopter and were landed on the deck of the Melbourne.

55 The rescued aircrew were, as one would expect, suffering the effects of the incident and were wet, cold and dirty. They were, according to the plaintiff, a sight that had an effect on him. While the plaintiff actually saw the rescued aircrew, he was not involved in their rescue. For the purposes of these proceedings, it matters little. There is no doubt that the incidents were memorable.

56 The relevance of these incidents is that for some period after 1964 the plaintiff had dreams, which the plaintiff, at one point, attributed to a memory of the Gannet incidents. There were descriptions of the recollection of the dreams that involved crew in different states of distress.

57 I accept the evidence that the recollection disclosed in the dreams was not a historically accurate depiction of the Gannet incidents. I also accept that the plaintiff first experienced the dreams after the Melbourne/Voyager collision in February 1964. However, I also accept that the scene depicted in the dreams is not a historically accurate depiction of that which the plaintiff directly observed of the Voyager collision or its aftermath. It is, however, on the evidence before me, a depiction of the Voyager collision as genuinely perceived by the plaintiff. That perception, while genuine, was informed by a range of experiences in the Navy (including the two Gannet incidents), caused by the trauma of the collision and based upon observation of it and the plaintiff's understanding of information provided to him on what had occurred.

58 The above does not suggest that all of the dreams were the same. Nor does it suggest that there were no dreams of the aftermath of the Gannet incidents. However, I accept, on the basis of the evidence adduced, that the dreams did not commence until after the Voyager collision and that there were a number of dreams. Those dreams included some aspects of the aftermath of the Gannet incidents.

The Dreams

59 Counsel for the Commonwealth put to the plaintiff, with which suggestion he agreed, that the plaintiff had several dreams about the Voyager. One was about the collision itself. A second dream concerned survivors in the water. Another concerns the plaintiff standing "feeling helpless" and hearing people scream. It is conceded, by the plaintiff, that on the night of the collision he neither saw nor heard survivors in the water. Nevertheless, he dreams of that occurrence.

60 Further, the plaintiff dreams of three bodies being brought alongside him in a boat. In his dream, the plaintiff remembers their feet sticking out from under the canvas. Objective material suggests that there were two persons in a boat brought alongside the Melbourne, not three. Further, it is not clear that the plaintiff ever saw them in the boat. The plaintiff remembers it that way; and thus he dreams it that way.

61 The plaintiff also has flashbacks of survivors covered in oil or dirt, being kept warm by blankets. There is little doubt that he saw such a scene; he also saw photos of such a scene. It is a scene that is similar to the scene of the survivors of the Gannet incidents being brought on board the Melbourne by helicopter. He dreams about the last mentioned incident as well.

62 The plaintiff was cross-examined, over the best part of three days, a great deal of which dealt with the various histories that he had given doctors over the years. It also dealt with whether the plaintiff, in fact, experienced the dreams and flashbacks of which he complains and/or whether the dreams and the flashbacks were of the Gannet incident. I find that the plaintiff has flashbacks and dreams. In that, the plaintiff is genuine. I find that parts of the flashbacks that the plaintiff suffers are memories of the Gannett incident. It should be borne in mind that the Melbourne launched helicopters for the rescue operation in relation to the Gannet incidents and brought back survivors. It also launched a similar helicopter rescue operation after the Voyager collision.

63 Most of the flashbacks and dreams, as already mentioned, relate to the plaintiff's perception of what occurred in and immediately after the Voyager collision. Further, I find that the flashbacks of the Gannet incident occurred only after the date of the Voyager collision and were caused by the plaintiff's reaction to the Voyager collision. As earlier stated, the dreams and nightmares occurred for 12 months after the Voyager collision and also after the plaintiff and his wife separated. The evidence does not disclose that there were nightmares and flashbacks between 1965 and 2000. To the extent that the plaintiff is reliable on this issue (which I doubt), those dreams and flashbacks did not occur between 1965 and 2000.

64 The doubt expressed in the previous paragraph relates to the lack of insight of the plaintiff. While it is conjecture and I therefore make no finding on the issue, it is just as likely that the stability afforded by the marriage (and the plaintiff's contentment) allowed the plaintiff to sleep better and not recall dreams or flashbacks that may have otherwise occurred.

The Effect on the Plaintiff

65 The Voyager collision had significant effects upon the plaintiff. Those effects manifested in a number of ways that were not the subject of challenge. I have already found that the collision caused a profound alteration in the character and conduct of the plaintiff. I have given details of that change in general terms. There were other effects.

66 After the collision, the plaintiff was unable to sleep below deck. During the remainder of his time in the Navy, the plaintiff slept on deck. After leaving the Navy, the plaintiff avoided air travel and boats. There were two occasions on which the plaintiff travelled on a boat or ship. One of them was, in his capacity as president of the Tasmanian branch of the Fleet Air Arm Association, when he visited a visiting US aircraft carrier.

67 It was suggested by the Commonwealth that this showed a lack of the requisite avoidance necessary amount to PTSD. Further, the Commonwealth suggested that his activity in the Association, of itself, negated the avoidance necessary for such a diagnosis. I reject both those submissions. While that rejection does not affect the outcome of these proceedings, the plaintiff's reluctant acceptance of the requirement to travel by aeroplane, to discharge his duty, as he perceived it, to attend the US ship, and the necessity to board a boat as a preferable course to being left alone, do not qualify the witness's general reluctance to avoid small spaces, ships and aircraft.

68 The plaintiff explained his activity in the Association. To the plaintiff, the activity was concerned with ex-sailors, not the Navy or ships. I accept this explanation. For a person who was in the Navy for nine years and who, after leaving the Navy, had the opportunity to visit (and enjoy) many ships, these incidents are remarkable for their exceptional quality.

69 The plaintiff remarked, and it is not seriously challenged, that one of the overwhelming feelings at the time of the Voyager collision, and thereafter, was a feeling of helplessness. The plaintiff felt frustration at his inability to do anything to assist. He also had a fear that he would fall overboard.

70 The plaintiff's task immediately following the collision was to clean debris off the flight deck. The plaintiff had just heard and seen the collision. He had seen different parts of the Voyager in the water. He was scared. He had seen the Melbourne approaching the Voyager and he knew that something was going to happen but hoped that it would not. He was scared before the accident and even more so afterward. It appeared to the plaintiff that the bow of the Melbourne had dropped quite a bit. He was scared and thought that they may be sinking. He describes himself as in total shock, very nervous and not knowing what else was going to happen.

71 After general cleaning duties he was assigned to general ship duties: he performed general maintenance on a particular part of the ship by chipping and painting.

72 On arriving back into Sydney, the plaintiff was given a number of orders and/or recommendations by those above him in command. First, he was not allowed to discuss the incident with anyone (by this, I understand, is meant a reference to non-official communication). He was told to go and get drunk and forget about it.

73 There was much adverse publicity to the conduct of the Melbourne and the plaintiff clearly felt "ashamed" about the position in which he had been placed. When he went ashore in uniform he would use his Navy cap from HMAS Albatross in an attempt to avoid any association with the Melbourne.

74 Each night that he went ashore, the plaintiff would drink heavily in order to "block out the memories of what [he had] seen".

75 As already stated, there was a significant alteration in the character of the plaintiff. He describes himself as being drunk almost every night. I accept that evidence. He drank to suppress his memories and to help him sleep.

76 I have already recounted the attitude of the plaintiff to the Navy prior to the collision. He was described as a "lifer". Nevertheless he had difficulty as a young man in passing all of the tests associated with progressing in the Navy. After the collision he progressed and he passed exams. Notwithstanding that, I accept, unqualifiedly, the evidence given by the plaintiff and others of his excessive drinking after the collision and the alteration in his character after the date of the collision.

77 While the Commonwealth pointed to the success of the plaintiff in exams and promotion after the date of the collision, such success was achieved despite the disabilities under which the plaintiff suffered and is not evidence of a lack of disability.

78 The plaintiff's wife and family complained, over the years, about the plaintiff's drinking. Yet the plaintiff did not accept (and still does not fully accept) that he had a drinking problem. Nor did he accept or understand that there was anything wrong with him. At the time of the trial, the plaintiff would not accept that he was an alcoholic. His ability to function enabled the plaintiff to undertake the menial tasks assigned to him during the remainder of his time in the Navy and in the employment he gained after the Navy, but there is no doubt on the evidence before the Court that the plaintiff was (and probably still is) an alcoholic whose alcohol abuse commenced as a result of the collision.

79 There can be little doubt that the alteration in his character and the alcohol abuse had an impact upon all around him. As already stated, the plaintiff resigned from the Navy after completing his nine-year stint. There is some objective evidence, being the reasons given at the time that he resigned, that it was the Navy's effect on his family that caused the plaintiff to resign. It is difficult, however, to separate the effect of the Navy on the plaintiff's family from the effect of the plaintiff's behaviour after the collision.

80 While it is true that the focus, or one focus, of the issues about Navy life was the plaintiff's absence during the birth of one of his daughters, there must have been significant tension caused within the family, even in the early days, from the alteration to the plaintiff's character and conduct. There is a great difference, in a relationship that involves significant absences of one party, when the absent party returns and conducts himself or herself in the manner described as the conduct of the plaintiff before and after February 1964.

81 In my view, on the evidence before the Court, if the plaintiff had not suffered, as he did, after the collision, the absences on duty (even when they involved an absence during the birth of a child) would not have led the plaintiff into leaving the Navy at a time which required him to forego the significant financial benefits of the Navy pension. In other words, while I am not in a position to determine that the plaintiff would never have retired from the Navy during his working life, I do take the view that the plaintiff would have continued in the Navy for the 20 years that would have entitled him to a pension. On that basis, he would have retired at 37 years of age and been able to spend a significant period of his life with a significantly better quality relationship with his family.

82 The evidence discloses that he had been spoken to about alcohol abuse by at least one employer and by his family. He rejected the notion that he was abusing alcohol.

83 When, in February 2000, the plaintiff's wife left him he was required to face a reality that he had suppressed. To him, his home was his haven. It is so described in the evidence. To the plaintiff, solace was obtained by staying at home, venturing out as little as possible and only when required or necessary, and drinking himself into oblivion. The plaintiff's relationship with his wife and daughters was described in evidence. It is unnecessary to repeat that description. It is sufficient to find that it reflects a relationship damaged by the character and conduct of the plaintiff as it had become after February 1964.

84 In February 2000, when his wife left, and when he was faced with the possibility of losing his home, the plaintiff visited a marriage counsellor, Ruth Crewes. This occurred on 24 August 2000. It is a significant date. This visit to the marriage counsellor occurred before there was any suggestion of proceedings relating to the Voyager incident. It occurred before there was any conference with any legal adviser relating to the Voyager incident.

85 At the session with the marriage counsellor, the plaintiff was required to face the reality of what had occurred to him and said, for the first time, that his wife had complained about his excessive drinking and admitted that he drank excessively. For the first time, he suggested that this had started immediately following the Voyager incident for the purpose of dealing with the stress of it. There can be no reasonable suggestion that the plaintiff was fabricating this story with the marriage counsellor, given as it was at that time prior to any suggestion of proceedings in relation to the Voyager collision. The session with the marriage counsellor also noted the anger and bitterness of the plaintiff over the Department's refusal to pay a pension.

86 Even so, the plaintiff was generally in denial. He continued to claim that his disability in the Navy was the result of incidents other than the collision.

87 The Commonwealth submits that there is no rational explanation for the changes in story by the plaintiff. Particularly this related to the question of dreams. I take the view, based on all of the evidence before the Court and the demeanour of the plaintiff, that at the time of trial the plaintiff did not have a full understanding or insight into his behaviour and into his experiences. If I were entitled to conjecture, and I am not, I would take the view that the plaintiff always suffered from dreams and flashbacks, caused by the Voyager incident, which in some respects was similar enough to the events that he witnessed following the Gannet incidents, that to this day he is unable to differentiate the two and/or caused him to remember both dramatic events.

88 It is unnecessary to conjecture. The findings I have made are sufficient and do not require me to determine the place of the flashbacks of the Gannet incidents in the aetiology of the plaintiff.

89 On any analysis, it cannot be suggested that the history given to Ms Crewes and to Dr Ratcliff was affected by any claim that is now before the Court or is inconsistent with the objective facts, even in the limited sense that the Commonwealth uses that term. The Commonwealth does not suggest it.

Medical Evidence

90 Because the Commonwealth does not suggest that the opinion of Dr Ratcliff, as at August 2001, was infected by any understanding in the plaintiff of the symptoms of PTSD, I will confine myself, at least initially, to the view expressed by Dr Ratcliff.

91 Dr Ratcliff examined the plaintiff on 7 August 2001. The plaintiff recited a history that is consistent with much of the submissions put on behalf of the plaintiff in these proceedings. That history omits certain relevant criteria. In particular, the recited history in the report omits any reference to flashbacks.

92 Dr Ratcliff opines in the following terms:

          “ In my opinion Mr Singline suffers from the effects of habitual excessive consumption of alcohol. The pattern is of heavy habitual beer drinking with only transient evidence of physiological dependency. His gastrointestinal symptoms (gastric reflux, flatulence, and subumbilical pain), intermittent depression of mood, and more probably than not, his history of epilepsy [there was, on the evidence, a single epileptic event which was medicated and not repeated] , are all most likely to be secondary effects of his alcohol abuse. Abuse of alcohol and tobacco has continued despite its obvious effects on his general health and on his relationships.

          He clearly relates the onset of his since [sic] pattern of drinking to the HMAS Melbourne-HMAS Voyager disaster. The onset of his drinking pattern would appear to be related to his anxiety at that time and he is currently affected by generalised anxiety. There is a particular fear of heights and confined spaces, both of which he relates to conditions of Naval service, particularly after the disaster.

          His anxiety disorder is overlaid by his alcohol abuse and cannot at this time clearly be stated as a separate diagnosis. However it is more probable than not that the alcohol abuse arose as self-treatment of an anxiety state. He does not, in my opinion, suffer from an anxiety disorder meeting the standard criteria for a diagnosis of Post Traumatic Stress Disorder, notwithstanding his vivid recall of the disaster and his stated avoidance of films and reading about naval matters, and his recent distress at news of the loss of the Russian submarine, Kursk. " [Emphasis added.]

93 On 7 June 2004, Dr Ratcliff reported further. This followed a further examination on 14 April 2004 and referred back to the earlier report. While the Commonwealth does not concede that by the time of this examination and report the plaintiff was unaffected by the proceedings, I consider that the evidence points overwhelmingly to the conclusion that the history upon which the report of 7 June 2004 is based is accurate. Dr Ratcliff records that the "history obtained from Mr Singline on the 14th April 2004 was substantially the same as that obtained on the previous occasion. Mr Singline however raised some supplementary matters. He complained that he had developed a problem of compulsive gambling on poker machines."

94 Dr Ratcliff's report continues:

          “ In my previous report, I gave my diagnostic opinion that the majority of Mr Singline's current symptoms resulted from alcohol abuse. I also expressed the opinion that it was more probable than not that the alcohol abuse arose as a self-treatment of an anxiety disorder, but that the typical features of this are to some extent masked by the effects of alcohol.

          Regarding the issue will post-traumatic stress disorder, there is no doubt that Mr Singline was exposed to a traumatic event meeting the criteria under A in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association fourth edition (DSM IV). He also has vivid and recurrent dreams of the event, meeting criterion B. Standard criteria under C are not met. He described intense avoidance of any approach to the sea, but the features of diminished interest or participation in significant activities, feelings of detachment or estrangement from others and a sense of a foreshortened future are all equally referable to an anxiety disorder and significant alcohol consumption. The non-specific criteria under D, sleep disturbance, irritability, significant impairment of concentration and hypervigilance again typically associated with anxiety, and the first two often associated with alcohol abuse.

          On the basis of a simple check-list he might be held to have a post-traumatic stress disorder according to DSM IV, but clinical judgement suggests that although his condition may have originated in such a condition, it is now not possible to go beyond a diagnosis of generalised anxiety disorder, according to DSM IV criteria.

          . . .

          A problem of clinical significance, such as excessive consumption of alcohol, may be part of a subculture, as indeed it was in the Navy. It may therefore not be recognized as a condition with clinical significance until it has been established for many years. Civilian subcultures have also traditionally concealed problem drinking, particularly in men, or denied it as being a problem.

          A typical generalised anxiety disorder is a diagnosis that can only be reconstructed from fragmentary indications in a person who has been self-treating his disorder with alcohol. " [Emphasis added.]

95 While Dr Ratcliff was cross-examined at some length on the differences, if any, in the history given by the plaintiff for the second report as distinct from the history given for the first report, there seemed little distinction, although it may be that the plaintiff did not refer to the vivid and recurrent dreams at the first examination. It matters not. I accept the diagnosis of Dr Ratcliff that, at the very least, the plaintiff suffered a generalised anxiety disorder as a result of, and caused by, the Melbourne-Voyager collision. A generalised anxiety disorder does not, on the evidence before the Court, require flashbacks and dreams. Therefore, even though I find that the plaintiff now has those flashbacks (and had them for 12 months following the collision), the existence of the flashbacks is not a necessary precondition to the diagnosis. This was the view of Dr Ratcliff.

96 The Commonwealth's submission that the plaintiff has not shown a psychiatric injury is rejected. Because I have found that, at least, there is a generalised anxiety disorder, it is unnecessary to determine whether the plaintiff suffers PTSD. It is not my task to diagnose the plaintiff. Nor is it my task, even if I were capable of it, of giving medical evidence. In a number of respects, the evidence is otherwise deficient. It is not clear whether PTSD can be suffered in circumstances where flashbacks were experienced for 12 months, then cease, and recommenced after a further 35 years and continued thereafter. If it were not possible, I would need to have gone beyond conjecture as to the existence of the flashbacks during the time of relative stability at home.

97 There are difficulties with each of the other medical reports. The experts qualified by the Commonwealth have dealt with the plaintiff's position on the basis of his naval records and have assumed that the collision had no significant impact upon him. The experts, other than Dr Ratcliff, qualified by the plaintiff, have assumed a continuing experience of flashbacks and dreams, which has not been shown to be the case. If it were necessary to select the evidence that I considered reliable, it is primarily that of Dr Ratcliff, and otherwise those doctors that found that the plaintiff suffered PTSD. It is unnecessary to deal with these issues.

The Effect of the Injury On Career

98 I have already discussed the effect of the collision on the character and conduct of the plaintiff. It was, as is obvious from the above, profound. I have also discussed, and I take the view, that the change in character and conduct also affected the attitude to the Navy of the plaintiff's family. Mostly, I take the view that the plaintiff should be believed in his expression of opinion that, but for the collision the plaintiff would have stayed in the Navy for at least 20 years to obtain his pension. That was his original intention. It is also consistent with the independent analysis of the plaintiff before and after the collision.

99 If the plaintiff had, as I find he would have, stayed in the Navy for the 20 years that would entitle him to receive a pension, he would, on the evidence of his before the Court, have at least reached the rank of chief petty officer. On the evidence before the Court, it is fairly clear that the plaintiff would have taken on a position in the Navy as an instructor. He enjoyed that work.

100 On retirement, which I assess would have occurred at the conclusion of the 20-year period, civilian employment would have been available which could have utilised those training skills. It is difficult to assess the level of earnings that would have thereby accrued. At the conclusion of his period in the Navy, it is unlikely that his qualifications would have allowed him to be a teacher in a school, although other training employment is available and he may have had the skills available for training in one of the technical trades. That civilian employment would have been undertaken between 12 January 1979 and 19 November 2006 (when the plaintiff turned 65).

101 Even if the plaintiff were to have undertaken employment as a painter (either on construction or in maintenance of buildings or machinery), his earnings would have been far greater (even in Launceston) than were his earnings as a cleaner or salesperson.


102 The plaintiff seeks that civilian employment earnings be assessed at average weekly earnings. The evidence does not allow me to accept that estimate.

103 In those circumstances, with the exception of issues of civilian earnings, which on the evidence before me are unable to be assessed, I accept the calculations and evidence (and assumptions upon which they are based) of Cumpston Sarjeant Pty Ltd in its report dated 4 December 2006.

Extension of Time

104 The extension of time application is governed by the provisions of the Limitation Act 1969 (NSW). It is in the following terms:

          "60G (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .
          (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

          . . .

          60I (1) A court may not make an order under section 60G or 60H unless it is satisfied that:
              (a) the plaintiff:
                (i) did not know that personal injury had been suffered, or
                (ii) was unaware of the nature or extent of personal injury suffered, or
                (iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
                at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
              (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).
          (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision."

105 The principles have been discussed in a number of judgments, and recently by the Court of Appeal in Commonwealth of Australia v Smith [2005] NSWCA 478 and Commonwealth of Australia v Shaw [2006] NSWCA 209.

106 The first aspect that must be examined is the satisfaction of the requirements in section 60I of the Act. Those preconditions require that one of the following three factual situations arise:


      i. that the plaintiff did not know that he had suffered personal injury; or
      ii. that the plaintiff was unaware of the nature and extent of the personal injuries suffered; or
      iii. that the plaintiff was unaware of the connection between the personal injuries and the defendant's acts or omissions causing them.

107 Those preconditions must be satisfied at the time that the limitation period expires or at a time before the expiry when proceedings might reasonably have been instituted.

108 If one of those three conditions is satisfied, the plaintiff must further satisfy the Court that the application was made within three years of the plaintiff becoming aware, or three years of the time the plaintiff ought to have become aware, of all of the above alternatives.

109 As can be seen from a reading of the alternatives, s.60I(1)(a) deals with actual awareness: Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9-10, and Smith, supra, at [114]-[116].

110 Section 60I(1)(b) is concerned with constructive knowledge. The constructive knowledge is not imputed awareness on the part of the plaintiff, but a subjective view based upon of what a person, in the position of the plaintiff, should have become aware: see Smith, supra, at [102]-[109]; Shaw, supra, at [31], [73].

111 As I have sought to make clear in this judgment, the plaintiff first became aware of the connection between the personal injury and the collision at a very late stage and after becoming aware, it was weeks, at most, before the filing of the statement of claim. Even at the time of trial, the plaintiff was unaware of the extent of the personal injuries suffered. Neither of those circumstances has been brought about by wilful blindness. It is the very condition under which the plaintiff suffers that has caused that ignorance and I determine that the plaintiff ought to become aware, given his personal circumstances and the nature of his condition, of the matters at about the time that he did.

112 As such, I am satisfied that the provisions of section 60I of the Act are satisfied.

113 Any delay in a proceeding causes prejudice. All litigation practitioners are aware of circumstances where litigation has been determined by the credit of a particular witness and in turn that credit has been dramatically affected by data that would be unavailable if there were long delays in proceedings.

114 I start from the assumption that there is prejudice to the Commonwealth by reason of the delay in the commencement of these proceedings. The proceedings were commenced more than 37 years after the incident occurred that gave rise to the personal injuries. The Commonwealth has had available to it a vast amount of material including full employment records of the plaintiff during and after his time in the Navy. It has had available to it the medical records. The cross-examination of the plaintiff has been thorough and exhausting. He was cross-examined over three days on that material.

115 Because I have had the benefit of hearing the proceedings to its conclusion I am more aware than I would be at an interlocutory stage that it is just and reasonable to extend the time in which to file the statement of claim, and I accordingly extend the time to 18 September 2001. I consider that the prejudice, if any, to the Commonwealth has not wrought an unfairness, which it has been unable to overcome.

Conclusion

116 I propose to award general damages in the order of $150,000. Interest will be payable on that amount on the statutory basis from 1 July 1972 (the commencement of the Supreme Court Act 1970 (NSW)) and calculated at 2.0% for 35 years, being an amount of $105,000.

117 The awarding of interest is not intended to be punitive. The Commonwealth obtains the benefit, in these circumstances, of the time between 1964 and 1972: see Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322 at 388. As stated on a number of occasions, the plaintiff was unaware, for a period, of the nexus between the collision and his situation and did not give notice to the Commonwealth. Nevertheless, he suffered the damage. The awarding of interest is discretionary and payable from the commencement of the Supreme Court Act 1970 (NSW). In all other judgments of which I am aware involving claims of damage in relation to the Voyager collision, interest has been awarded. I, too, award interest.

118 In accordance with the above I calculate as the difference between the earnings, but for the injury, and actual earnings, being the difference between $82,345 and $20,667, or a result of $61,678, on which the interest payable is $238,602. On the above basis, it is necessary for the damages to include an amount, which is the Navy pension. The value of that (less member contributions) is $410,176. I allow that amount in addition to the other amounts. I have not added or awarded any further amount for civilian superannuation. On the above analysis there are no future earnings and I allow no deduction for vicissitudes.

119 I make the following orders:

      (1) Extension of time is granted sufficient to enable the plaintiff to file his Statement of Claim on 18 September 2001.
      (2) Judgement for the plaintiff.
      (3) The defendant shall pay damages to the plaintiff in the amount of $1,244,096, including interest.
      (4) The defendant shall pay the costs of the plaintiff of and incidental to these proceedings, as agreed or assessed.
      (5) The parties have liberty to approach on the basis of any perceived miscalculation of interest or principal and for any special order relating to costs.
      (6) Otherwise the proceedings are dismissed.
      **********
29/08/2007 - [67] "witnesses" spelt incorrectly; [76] "Given that" replaced with "Notwithstanding that,"; [87] "that" removed from the third sentence; [96] "ceased" altered to "cease" in the sixth sentence; [103] "for December 2006" replaced with "4 December 2006"; [114] "for" removed from last sentence; [117] "The warning of damage" replaced with "The awarding of interest" in the fourth sentence. - Paragraph(s) 67; 76; 87; 96; 103; 114.

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Commonwealth of Australia v Smith [2005] NSWCA 478
Commonwealth of Australia v Shaw [2006] NSWCA 209
Harris v Commercial Minerals Ltd [1996] HCA 49