Smith, M.E. v Commonwealth of Australia

MARGARET ELLEN SMITH v. COMMONWEALTH OF AUSTRALIA
No. NG912 of 1992
FED No. 1008/93
Number of pages - 4
Limitation Of Actions

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Limitation Of Actions - application to extend time for bringing of action - s 60H Limitation Act 1969 (NSW) - whether "just and reasonable" to extend time.

Compensation to Relatives Act 1897 (NSW)

Limitation Act 1969 (NSW) - s 60F, s 60G(2), s 60H(2)

HEARING

SYDNEY, 23 August 1993

#DATE 23:8:1993

Counsel for the Applicant: Ms C.C. Simpson QC

Instructed By: Maurice May and Co

Counsel for the Respondent: Mr J. Mccarthy QC

With Mr M. Joseph

Instructed By: Australian Government Solicitor

JUDGE1

FOSTER J This is an application by Margaret Ellen Smith for an order pursuant to s 60H(2) of the Limitation Act 1969 (NSW). Mrs Smith wishes to bring proceedings against the Commonwealth of Australia pursuant to the provisions of the Compensation to Relatives Act 1897 of that State despite the expiration of a relevant period of limitation.

The relevant section is expanded in its operation by the provisions of schedule 5 paragraph 4(2) and (4) of the Limitation Act.
These provisions and the associated provision in s 60G(2) have been considered by the courts in New South Wales and also by myself in two decisions given last year. For present purposes, the application having been made within three years of 1 September 1990 as provided in schedule 5 paragraph 4(2)(b), the issue which is posed for the Court's decision is whether it is established by the applicant that it is just and reasonable for the limitation period to be extended.
Additionally, if regard be paid to later decisions of the Court of Appeal of the Supreme Court of New South Wales, both given since the decisions given by myself last year, it becomes also relevant to consider whether pursuant to s 60F, the applicant, or in this case the deceased husband of the applicant, was "unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time". The relevant time has been held to be the expiration of the limitation period that would otherwise have applied.
The facts relied upon in relation to the cause of action sought to be prosecuted occurred in 1952, with the result that the relevant time would have been some time in 1958. It is unnecessary to be more precise in these reasons as it is quite clear, in my opinion, that whether or not it be appropriate, and it seems now that it is, to take account of the operation of s 60F, the provisions of that section are amply complied with in the present case. The relevant injury or disease from which Mr Smith died was not the subject of any awareness on his part of a relevant kind until 1988 when it was diagnosed.
The question therefore is whether it has been demonstrated that it is just and reasonable to extend the limitation period in this case. The cause of action sought to be brought under the provisions of the Compensation to Relatives Act 1897 (NSW) is a cause of action based on negligence, it being alleged that the respondent Commonwealth of Australia was guilty of breaches of duty to the deceased William Errol Smith as its employee.
Mr Smith, between 21 June 1952 and 5 February 1953, was serving in the Royal Australian Navy on HMAS "Koala". That vessel was involved in the operation code named Hurricane which was an operation involving nuclear testing in the area of the Monte Bello Islands. The relevant test took place in October 1952. Mr Smith was employed as a clearance diver. His duties aboard HMAS "Koala" obviously involved, from the evidence that has been placed before me, entering the water as a diver and attending to duties below the water surface.
It appears from the material in Mrs Smith's affidavit of 3 June 1993 and the annexures to that affidavit that he was involved in diving activities in the area of the Monte Bello Islands after the experimental explosion of a nuclear device in October of 1952. The material in the affidavit and its annexures refers largely to facts that were examined in the Royal Commission into nuclear testing, and also a statement of the deceased and a transcript of evidence given by him in the proceedings before the Royal Commission.
There is prima facie indication in that material that he was involved in at least two underwater recovery operations in areas close to the position of the blast. It appears that some weeks after the explosion which he himself had witnessed he was required to recover a stockpile of chain which had been left on the sea bed in fairly deep water. This required that he and others dive with the use of breathing apparatus to the sea bed and attach to the chain lying on the bottom grappling hooks which were then used in the operation of winching the chain aboard the vessel. The chain was stowed as part of this operation in the hold of the ship, an operation in which it appears that the deceased took part. Shortly thereafter the chain and the forecastle area of the vessel was found to be contaminated with radioactivity.
The deceased was then required to assist in the operation of removing the chain from its position in the forecastle so that it could be dumped in the sea. This operation required that the cable have ropes, shackle wires, etc, attached to it and that it be hauled up out of the hold and placed in a barge. Thereafter he and others who had been involved in this operation were required to hand over their clothes so that they could be dumped because they were contaminated with radioactivity. They were also required to engage in stringent washing procedures before being issued with new clothes.
A few days after that they were required to go back into the water again in order to assist in recovering a sunken barge which was said to be lying in contaminated water in the blast area. They were required to spend time underwater attaching wires and, no doubt, grappling hooks to the barge so that it might be lifted to the surface. This barge, when it was recovered was also found to be contaminated and the mud and sand from the bottom which was attached to it, and the equipment used in its recovery, were also found to be contaminated with radioactivity. Decontamination procedures were once again followed.
A gentleman, who it would appear was an expert in this area, Squadron Leader Thomas came aboard the ship on 31 October for monitoring purposes and it was he apparently who discovered that the boom area and hoisting equipment of the vessel had been contaminated with radioactive mud, sand and seaweed and that this material was being tramped over the ship by the crew. Indeed, the captain's carpet was contaminated and had to be dumped overboard.
It is submitted that these facts are not adequate to establish a duty of care owed by the Commonwealth to the deceased or to establish prima facie any breaches of that duty. The evidence is of course fairly sparse. There is no evidence of particular standards to be applied in relation to care to be taken for the safety of divers operating in these conditions. There is no evidence of readings taken to indicate the level of radioactivity on the vessel or on the equipment to which I have been making reference. There is evidence, however, of precautions that were taken after the first incident and after the second.
Those precautions, in my view, are prima facie indicative of the factor that the level of contamination was viewed as being dangerous. Evidence is also provided that the level of equipment provided for the divers was primitive. They were not provided with wet suits. There is no evidence that wet suits existed at that point of time for use in diving operations, but we are dealing with the 1950s and I think it not unreasonable to infer for the purpose of this application, having regard to the emphasis that was given to that fact in the statement obviously provided for the purpose of the Royal Commission, that wet suits as a source of protective clothing were available to divers and were not provided.
More importantly, there is evidence provided that the standard of breathing equipment provided was inadequate to the point that it was possible to swallow water during the course of the dives and this was said to be unavoidable. This was of course a peacetime operation and there can be no question in my view, prima facie, that a duty to take reasonable care of the safety of personnel would have been imposed upon the Commonwealth. The question is whether for the purpose of this application, it can be said that sufficient has been shown of breaches or potential breaches of such a duty of care to warrant it being just and reasonable to allow this matter to be litigated.
I have come to the conclusion that despite the absence of any precise evidence as to appropriate standards, readings and the like to which I have already made reference, there is enough before me to indicate prima facie a failure to comply with reasonable standards of care in relation to the safety of persons diving in waters which were shown to be contaminated. Particularly, I take note of the fact that it appears that the deceased was required to dive a second time into waters which had been established to be dangerous.
In those circumstances, I consider that despite cogent submissions made to the contrary sufficient has been shown of the existence of a duty of care and of its breach to qualify under the section.
It is also put that there is insufficient indication of damage resulting from the breach. There is certainly some disparity in the medical evidence that has been placed before me. I consider, however, that it should be held to be reasonably foreseeable that persons required to dive at least a second time, on the facts put forward, to an area demonstrated to have had certain dangerous propensities, would do so in a situation where there was a foreseeable risk of harm to them. There is enough medical evidence placed before me at this stage to indicate an arguable case that the resulting cancerous condition could be attributable, or at least partly attributable, to the effects of radiation exposure during the course of the events that I have just related.
In those circumstances, I consider the applicant has discharged the requirements of the section and I propose to allow the extension of time.

[1993] FCA 1008

23 AUGUST 1993