Smith v Commonwealth of Australia - [2006] NSWSC 689

No judgment structure available for this case.

CITATION: Smith v Commonwealth of Australia [2006] NSWSC 689

HEARING DATE(S): 12 & 13 October 2005

JUDGMENT DATE :
6 July 2006

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: 1 The limitation period for the cause of action be extended until the day on which the statement of claim was filed, namely 14 August 1997.; 2 The question of costs will be determined following further submissions of the parties.

CATCHWORDS: Claim from Voyager collision - Melbourne crewmember - limitation defence - significance of failures by defendant to keep records and make enquiries - evidentiary onus of proof - whether actual prejudice

LEGISLATION CITED: Limitation Act 1969 ss 58, 60

CASES CITED: Commonwealth v Neil Patrick Smith [2005] NSWCA 478
Gretton v Commonwealth [2005] NSWSC 437
Groves v The Commonwealth (1981-1982) 150 CLR 113
Holt v Wynter (2000) 49 NSWLR 12
McLean v Sydney Water Corporation [2001] NSWCA 122
Parker v The Commonwealth (1964) 112 CLR 295
Smith v The Commonwealth [2004] NSWSC 873
Sydney City Council v Zegarac (1988) 43 NSWLR 195

PARTIES: David Ronald Smith (Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S): SC 20785/97

COUNSEL: Mr P G Mahony SC with Mr J Sharpe (Plaintiff)
Mr C J Barry QC with Mr D Brogan

SOLICITORS: Riordan Legal (Plaintiff)
Australian Government Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

6 JULY 2006

20785/1997 SMITH v COMMONWEALTH OF AUSTRALIA
JUDGMENT

1 HIS HONOUR: The plaintiff, David Ronald Smith became a sailor in the Royal Australian Navy on 29 July 1963 when he was eighteen years of age. Less than a year later, on 10 February 1964, he was an ordinary seaman serving on board HMAS Melbourne when it collided with HMAS Voyager (“the collision”) about twenty miles south east of Jervis Bay. The plaintiff alleges that he suffered psychological injury (Post Traumatic Stress Disorder or PTSD) caused by his experience of the collision and its aftermath. He commenced proceedings against the Commonwealth of Australia in this Court on 14 August 1997. Having regard to the period that elapsed since the onset of his symptoms and the commencement of his action, the substantial obstacle to his litigating his claim constituted by the provisions of the Limitation Act 1969 presented itself. Accordingly, the plaintiff has applied to extend the limitation period to permit this action to proceed. The plaintiff contends that the Court should order an appropriate extension under one or other of the appropriate provisions of the Act –

58 Ordinary action

Law Reform (Miscellaneous Provisions) Act 1944

Compensation to Relatives Act of 1897

60C Ordinary action (including surviving action)

Compensation to Relatives Act 1897

60G Ordinary action (including surviving action)

Compensation to Relatives Act 1897

2 It is agreed that the limitation period for commencing the plaintiff’s action expired on 11 February 1970 although, at that time, it was generally perceived that no claim could be brought by a serviceman against the Commonwealth: see Parker v The Commonwealth (1964) 112 CLR 295. Since Groves v The Commonwealth (1981-1982) 150 CLR 113, however, it is clear that such an action was maintainable. As I understand it the first “Voyager action” was brought in 1986 in Victoria. In essence, the defendant admits liability but does not concede the allegation of injury, loss and damage.

3 Having regard to the concession by the plaintiff as to the date that the limitation period expired, I have not found it necessary to consider whether, indeed, his PTSD (assuming he has the condition) actually manifested itself on the day of the collision. It is obvious that it is his case that the condition was caused by that collision. However, the condition is defined by a number of elements which were, as I understand it, not demonstrated at that time. As this issue was not agitated by the parties I say no more about it.

The plaintiff’s case

4 The following account is a brief outline of the plaintiff’s case. On the night of 10 February 1964 he was in a cafeteria on the Number 4 Deck of HMAS Melbourne watching a movie. There was a violent thump and the ship lurched. He was thrown onto the floor in complete darkness. The plaintiff heard a pipe calling for collision stations. The plaintiff says that he believed the ship was going to sink and was terrified. In a panic to get out of the cafeteria before the hatches were closed, he climbed over people to get to the ladder which led onto the passage on the deck above, namely Number 3 Deck. The plaintiff was on the starboard side of the ship and saw, once he emerged onto Number 3 Deck believing that Melbourne was sinking, large bulk scraping down the side of the ship. (He later learned that this was the stern of HMAS Voyager, the ship having been cut amidships by the bow of the Melbourne. The bow of Voyager sank on the port side of Melbourne whilst the stern sank on the starboard side, the former sinking relatively quickly whilst the latter sank later that evening in full view of the sailors on Melbourne, including the plaintiff.) The plaintiff reached his assembly area on 3 Deck where a petty officer organised boats to be lowered and a gangway to rescue survivors who were in the water. The plaintiff says that, as he came to the realisation that Voyager had been struck, he was shocked and overwhelmed because, only months before, he had trained with a number of men most of whom had been assigned to duty on board Voyager. The plaintiff was involved in the rescue operation, assisting in the lowering of boats and taking on board of survivors. He saw men covered in oil, coughing, groaning and in obvious pain. As some were pulled out of the water the plaintiff did not know whether they were alive or not. One of the dinghies he helped lower into the water from Melbourne smashed and sank as it hit the water. There were helicopters flying above with their searchlights on the water searching for survivors and depicting the scene. As sailors were brought on board the Melbourne, the plaintiff helped by obtaining blankets and clothing and later saw men in the cafeteria huddled together in what was described as a fairly parlous state. The plaintiff said that when he watched the stern of Voyager sink later that evening he was in a state of complete shock. Melbourne itself suffered severe damage to its bow and the return trip to Sydney was rough. The plaintiff said that, during the entire voyage back to Sydney, he was frightened that the bulkheads would give way and Melbourne would sink.

5 As a result of the collision eighty-two sailors lost their lives and many suffered severe injuries. The plaintiff was very upset by what had happened. He suffered nightmares after the collision, and became frightened of sleeping below deck. He suffered no physical injury but claims damages upon the basis that he suffers from PTSD caused by the circumstances which I have briefly described.

After the collision

6 The ship’s company was instructed by officers on Melbourne, as they sailed back to Sydney after the collision, “just to forget about it and get on with their lives”. The plaintiff attempted to do this but, he alleges, without success. When Melbourne reached Sydney and the plaintiff disembarked he sought solace in alcohol, as did many others. He says that he happened to come across some Voyager survivors in a hotel and just broke down in tears.

7 Before the collision the plaintiff had been teetotal to about sixteen years of age and then became a moderate drinker. After the collision, however, the plaintiff commenced to drink heavily and often drank all of his pay on occasions of binge drinking. His consumption of cigarettes also sharply increased.

8 The plaintiff served for a time at HMAS Albatross at Nowra and then back on Melbourne, doing this in rotation until about 1968. In 1970 the plaintiff was in the Fleet Air Arm and was sent to South Vietnam to serve in that year with a United States’ helicopter company as a helicopter armourer. Whilst training for his stint in Vietnam, the plaintiff developed a fear of flying and other generalised anxiety. This became markedly worse during his time in Vietnam. So extreme was his fear that he would not take his rest and recreation leave because it involved flying to the place where the leave was to be taken and he did not wish to fly at all. When it came time for him to return home, he requested to be sent home by ship rather than plane because of his condition.

9 Shortly after the plaintiff’s return to Australia in October 1970, he was referred by the Navy to a psychiatrist, Dr J McGeorge, who diagnosed a phobia or fear of flying. The plaintiff did not seek or receive treatment for the effects or possible effects suffered by him as a consequence of the collision. The plaintiff was discharged on 28 July 1972. At that time an assessment was made of his phobic condition by a Medical Board of Enquiry. I will deal with this and the plaintiff’s medical history in due course.

10 At the date of discharge, the plaintiff was a Naval Air Mechanic (Weapons), the equivalent to the naval rank of Able Seaman.

11 Following discharge, the plaintiff was employed in June 1973 until about August of that year as a shift worker with John Fairfax and Sons Limited. He then moved to other employment for varying relatively short periods until, in 1976 (having married in December 1975), he moved to the township of Dookie in Victoria and began working around the Shepparton area, from 1980 being self-employed as a second hand dealer in Shepparton. In addition to this business, in 1980 the plaintiff obtained part time employment in Dookie driving the school bus morning and afternoon, which he continued to do over the ensuing twenty-two years until June 2002. The plaintiff made only little money from his second hand dealership business. Occasionally, he supplemented his income by undertaking part time work.

12 In June 2002, the plaintiff closed his second hand dealership but continued to drive the school bus until about June 2005 when he retired. He and his wife have two children, a daughter born in October 1983 and a son in July 1986.

13 In November 1991 the plaintiff applied for a Department of Veteran Affairs’ pension in respect of his war service in Vietnam which was granted in 1992. For the purpose of this application he was examined by a psychiatrist, Dr Ian Parkin, at the request of the Department. Dr Parkin’s report was not provided to the plaintiff but became available later by what appears to be a process of informal discovery in these proceedings. The report contains a history taken from the plaintiff, including his collision experience, which Dr Parkin regarded as significant. I will deal with Dr Parkin’s opinion later but it is useful to quote his conclusion at this point –

“I believe that his Post Traumatic Stress Disorder was related to the ongoing traumas of his navy experience. I believe that Vietnam was probably was the most significant ongoing trauma but he really has suffered a number of traumas.”

14 The opinion of Dr Parkin was not available to the plaintiff until these proceedings had commenced. Dr Parkin had not passed his opinion onto him. The plaintiff was awarded a 40 per cent pension in respect of his war service. Of course, that did not include his service on Melbourne.

15 In due course the plaintiff decided to seek legal advice, which led to him being examined eventually by another psychiatrist, Dr Brendon Holwill on 17 November 1977. Dr Holwill was the first person to tell the plaintiff that he was suffering from PTSD initially caused by his involvement in the collision.

The Issues

16 In general terms the crucial questions are whether the plaintiff knew or ought to have known that he had suffered the injury or its nature or extent or its connection with the defendant’s act or omission at the expiration of the limitation period or at an earlier time when proceedings might reasonably have been instituted and, if he did not, whether “it is just and reasonable” to extend the limitation period. The Commonwealth takes issue on both these elements of the plaintiff’s application, although it places most significance on the second element. Mr Barry QC for the Commonwealth submits that it is simply not possible now to conduct a fair trial, not only because of the mere expiration of time itself but also of events which have supervened since the cause of action accrued.

The legal framework

17 I have already set out the relevant provisions of the LimitationAct. What have been called the gateway issues involve relatively straightforward findings of fact. The crucial question here is whether the plaintiff was aware that he suffered from a recognisable psychiatric illness and, if so, when he came to that awareness: Commonwealth v Neil Patrick Smith [2005] NSWCA 478 per Handley JA at [7], Santow JA at [104] and Basten JA at [181]. More difficult is the question whether the delay and its consequences result in such significant prejudice to the Commonwealth as to render a trial unfair or, more precisely, whether the plaintiff has established that a trial held at the present time would be fair, for all that many years have elapsed since the relevant events, many of the relevant witnesses are not available and, in respect of the remaining witnesses, their memories must be adversely affected to a significant degree. Also relevant is the situation of the Commonwealth which is in the position, and has been for many years, of being freed from liability by virtue of the expiration of the limitation period. In this case Mr Barry has focused mainly on the adverse effect of the delay on the fairness of the potential trial in support of the submission that an extension of time ought not be granted.

18 If I may say so, I think the following observation of Basten JA (dissenting as to the outcome but not as to the relevant principles) in Commonwealth v Neil Patrick Smith [2005] NSWCA at [210] is useful –

“The fact that causes of internal ‘mental impairment’ are difficult to determine should tend to discourage a grant of leave to allow an plaintiff to present evidence to a court of the effects on him and on his mental condition of events which occurred more than 37 years ago. For this purpose, a ‘fair trial’ is one in which the likelihood of a correct assessment of the facts has not been so diminished by the passage of time as to [no] longer enjoy sufficient prospects of achievement. In some cases, the usual prejudice caused by delay may be off-set by advances in medical science. Indeed, a condition or causal connection which could not have been identified at an earlier time but later be capable of identification. However, there was no evidence in the present case that psychiatry, despite modern attempts to classify and systematise definitions of mental conditions, had achieved such a state, relevantly to the present circumstances.”

The plaintiff’s evidence about his condition in the Navy

19 I do not intend to set out in any more detail than I already have the plaintiff’s account of his experiences on Melbourne at the time of the collision and the immediate aftermath. He said that he became a binge drinker. This continued for many years, although some years ago he realised he needed to stop and moderated his drinking to some degree. The plaintiff says he suffers from nightmares about the ship rolling over and sinking and sometimes wakes in a panic and a sweat and cannot get back to sleep. He said these nightmares commenced shortly after the collision and continued to the present day. He says he is easily startled and is very jumpy. He will not fly on any account and avoids travelling on buses, trains or ships as much as possible, fearing he will be trapped. As far as buses are concerned, I make the observation that this seems at odds with his employment as a part-time bus driver for many years but this and similar issues do not call for present discussion.

20 The plaintiff’s evidence is that his fear of flying which became a phobia whilst he was in Vietnam commenced during his initial training following his transfer in 1969 to the fleet air arm. The plaintiff first obtained psychiatric treatment in Vietnam. Until that time, as I have said, he suffered recurring nightmares and from occasional panic attacks but had already commenced a serious level of binge drinking. He says that, following the collision, he became less enchanted with navy life, was less interested in promotion, failed a few courses, refused to take other courses and became less sure about what he wanted to do, eventually deciding in 1972 not to sign on for another term. He said that he was not going to sea again and did not want to fly, one or other of which he would have had to do as part of his service.

Service History

21 The plaintiff remained on Melbourne after the collision until September 1964. He identified Leading Seamen Marshenko and Salter as in charge of his mess for at least part of that time. In September 1964 the plaintiff transferred to Albatross to train as a Fleet Air Arm mechanic, staying there until March 1966. Amongst others who were present with him at that time were Ordinary Seamen Gall and Turnbull, Leading Hand Hagger and Naval Airman Waskew at the engine repair shop. The plaintiff undertook a weapons’ course and the instructor was Petty Officer (Weapons) Healey whilst the officer in charge was Lieutenant Dickie. Chief Petty Officer (Weapons) Alonzo Brookes was also there at the time. Between March 1966 and August 1967 the plaintiff was drafted to 816 Squadron B Flight and posted back to Melbourne. Amongst others he remembers being there at the time were Petty Officer Healey, Leading Airman Jones, Weapons Mechanic Turnbull, Petty Officer Eldridge, Leading Airman Trood and Naval Airman Turner. In August 1967 the plaintiff returned to Albatross in Air Weapons working at the “Bomb Dump” where Lieutenant Currie was in charge. In May 1968 the plaintiff was drafted to RAN Helicopter Flight Vietnam and sent to a training course attached to 723 Squadron, still based at Albatross. He was in training for three to four months. The officer in charge was Lieutenant Commander Rorsheim. Following that training course the plaintiff was placed in reserve and returned Air Weapons at Albatross. In mid 1969 the plaintiff was again sent back to training at 723 Squadron where the commanding officer was Lieutenant Commander Farthing. He completed his training about October 1969 and was sent to Vietnam, attached to 135th Assault Helicopter Company US Army. Although he had been trained as a helicopter gunner he did not serve in that capacity but as an armourer at the US Army Base known as “Bearcat”. RAN personnel in his flight included Chief Petty Officer Markham, Lieutenant Mayo, Lieutenant Cooper, Leading Air Weapons Reuhl, Naval Airman (Weapons) Venn, Naval Airman (Weapons) Johnson, Naval Airman (Weapons) Petrie and Naval Airman (Weapons) Ralph. US personnel who served with him included PFC Sayle, PFC Bergsman, PFC Pfeiffer and PFC Guard.

22 As I have already mentioned the plaintiff completed his tour in Vietnam in October 1970 and returned to Australia by sea. As I understand it, he was posted to Albatross.

The plaintiff in Vietnam

23 As I have mentioned, the plaintiff’s fear of flying became evident in 1968 when he was required to fly in helicopters as a part of his training at Albatross in preparation for going to Vietnam with his unit. He said that he was very frightened when he flew. As it happened, he was not required to fly again until a year later when he undertook further training but again he feared doing so. He said that he was very fearful for his safety each time he was required to fly. In Vietnam his service required him to fly because he was required occasionally to test weapons in helicopters in flight. At other times he was transported in helicopters and fixed wing aircraft. His fear of flying became worse. He said that he was extremely uncomfortable when he was in an aircraft, feeling out of control and powerless. This fear was worse if he was in a cramped or confined space. I have already mentioned that, whilst in Vietnam he declined to take overseas recreation leave because he did not want to fly. A month before his tour finished and he was due to be flown back to Australia the plaintiff reported his fear of flying to his commanding officer, Lieutenant Commander Farthing and requested that he be returned to Australia by ship. He said that he was referred then to an army doctor in Saigon, whose name he could not recall (and who, apparently, cannot now be identified). In cross-examination, the plaintiff said that he recalled being asked about his fear of flying but did not otherwise remember the details of the consultation. From other evidence I infer that he was not asked and did not disclose his experience in the collision. He was later told that he would return to Australia on HMAS Japarit. He was so fearful of being trapped in the ship that he slept on the deck during this voyage. The plaintiff said that during his time in Vietnam his drinking became heavier and that he drank most nights until he became intoxicated. He gambled virtually every night also.

24 Whilst in Vietnam the plaintiff witnessed a quite horrific motor vehicle accident involving a fatality and, it may be accepted, experienced a significant number of stressful events involving danger to his personal safety.

Naval doctors

25 Following the plaintiff’s return to Australia he was referred by his commanding officer to a navy psychiatrist, Dr McGeorge, whom he saw on a number of occasions. Amongst the medical records produced by the Commonwealth is a document dated 14 December 1970 (two months or so after plaintiff left Vietnam) apparently initiated by a medical officer in connection with a referral for psychiatric examination. The form contains information reported by the plaintiff’s commanding officer describing the plaintiff as a “reliable sailor who can be left to do a job without supervision” and “a fairly happy type, though he does not display any interest in training for advancement…[having] no unusual personal habits”. Also noted is the following; “the only thing the sailor complains of is that he does not like flying in aircraft. He is not aircrew, and therefore is not required to fly in service aircraft”. It was the opinion of the officer that, “I consider that the sailor is an asset to the navy and should be retained”. It appears that, since the part of the form dealing with any psychiatric diagnosis and recommendation is not completed, in the result, no reference to a psychiatrist was actually made at this time. However, an outpatient record made when the plaintiff had returned to Albatross has a note made by a Lieutenant B Hockley on 8 December 1970 to the following effect –

“This sailor has had a phobia about flying since 1969. Posted Sth. Viet. in 1970 and has been sent R.T.A. because he has developed a morbid and irrational fear of aeroplanes. Cancelled R & R because of this fear. Also has fears of travelling on trains and in cars. Worries a lot and sleeps poorly, smoking and drinking more.

Could you please give advice on the diagnosis and management of this patient?

Diagnosis: phobia of aeroplanes secondary to neurotic personality.

26 The same clinical note contains the following dated 12 January 1971 made by Dr McGeorge, described as a consultant psychiatrist –

“Doesn’t like flying but does not have to do any now. Just did not like it. He seems at a loss to describe his symptoms, which may be due either to diffidence or lack of actual symptoms. He also dislikes travelling on trains. On pressing, he says he gets palpitations, palms sweat and he has pins and needles all over his body. The condition seems to be a phobic one probably of the nature of claustrophobia.

He has only worried about trains since his return from Vietnam. It may be that some experience there played a part. He was involved in a truck smash there and suffered minor lacerations. It is likely that this is unconsciously related to his phobias.

I suggest Librium 10 mg t.d.s for 1/12 - then review.”

27 The plaintiff saw Dr Hockley again on 10 February 1971 and on the following day saw Dr McGeorge, and again a week later. The only reference to history is “crash in truck in Vietnam, not unconscious” and “injured in ‘68 in motorbike accident”. It seems reasonable to infer that that the plaintiff was only asked about his experiences in Vietnam and, because that involved a motor vehicle accident, secondary enquiries were made of him as to any other motor vehicle or, perhaps, similar accidents. Since service in Vietnam was war service, this might explain the focus on his service there as a possible explanation for his phobia about flying. Furthermore, it appeared (though this might have been somewhat inaccurate in light of the full history) that his phobia either developed or was evident in Vietnam and not before. The final note made by Dr McGeorge on 18 February 1971 is –

“Condition unchanged. There might be an unrevealed factor preventing his response. Perhaps psychological investigation may elucidate this.

Continue with Amitriptyline 25 mg t.d.s for 1/12, then review with report from Psychologist.”

28 The plaintiff himself says that he could not recall Dr McGeorge or the Navy doctors ever asking him about his involvement in the collision or what he had been like after that event and he did not believe that any of them ever did. It seems to me that, had a history been taken from the plaintiff that dealt with his presence at and experiences during and subsequent to the collision, a note would have been made on the record to that effect. This would be so, I think, even if the doctor concluded that the plaintiff’s involvement in the collision was not material to the condition that he then presented with.

29 A Medical Board report of early March 1971 (the date is obscure) described the plaintiff’s disability as “anxiety depression” and its date and place of origin as “1969. Not known”. A naval psychologist reported in an out patient record of 8 March 1971, giving as a background to the referral that the plaintiff had “returned from Vietnam suffering from a phobia about flying and (to a lesser extent) travelling as a passenger in trains and cars”. The “past experiences relevant to phobia symptoms” referred only to several accidents involving motor vehicles, namely a car accident in 1963, a motorcycle accident in 1968 and a motor vehicle accident early in 1970 (almost certainly the truck incident in Vietnam). The psychologist noted, in respect of the plaintiff’s attitude to his naval service, that though he liked serving in the navy and had no desire to obtain a discharge he had “very little interest in furthering himself through promotion”, noting that his “main objective in life is to become wealthy and he intends to realise this objective through gambling and punting on horses…” A note was made, however, of the plaintiff’s admission that he had lost a considerable sum of money in the past few months. The results from psychological testing were stated as follows –

“Smith’s current level of intellectual functioning as measured is slightly above average GS standard. However, the finding of projective testing suggests an excessive use of repression as a defensive mechanism as assessed from his rather impoverished and restricted perceptual field. Smith’s personality pattern is consistent with those found in people who translate their anxiety pattern into phobic symptoms. His mode of thinking impresses as being naïve and egocentric and he seems to have a very limited capacity to learn from past experience.”

30 The report concludes with the following summary and recommendation –

“It is felt that Smith is poorly equipped to deal with everyday stresses and while the Service setting may often protect him more than expose him to these demands, he seems to be limited in his capacity to deal with a more demanding situations. It is considered that Smith may benefit from psychiatric treatment for his present symptomatic behaviour.

Apart from a series of motor vehicle accidents no specific causes for his present symptoms could be identified and he is considered to be emotionally unsuitable for Service life. His discharge is recommended.”

31 The plaintiff was seen again for review on 18 March 1971 by Dr McGeorge who considered that “his record of serious accidents may well be the cause of his phobic reaction to planes and to a lesser extent, to trains”. Medication with amitriptyline continued. On 20 July 1971 he was referred by Dr Hockley once more to Dr McGeorge for review, the diagnosis of anxiety depression continuing. Dr McGeorge noted –

“No trouble recently because he travels by car and not in trains. He has not tried himself out in any other form of transport. Unhappy in service. It is difficult to say how much of his phobia reaction is due to desire for his discharge, conscious or otherwise, and how much to his accidents.

There is no need for further treatment and it will be just be a matter of time before he adjusts if he has a genuine desire to do so.”

32 I infer that, being a review, the history of the plaintiff (except for immediate events since the previous review) was not revisited at this time. It seems to me that the overwhelming likelihood is, as I have mentioned, a complete history of the plaintiff’s Service experiences was not seen as material, given that his presenting problem was his phobia about flying, and the plaintiff’s involvement in the collision was not touched on. As it happened the plaintiff did not see Dr McGeorge again.

33 Dr McGeorge, died on 9 May 1979. The Commonwealth has submitted that Dr McGeorge’s death is a substantial obstacle to its being able to fairly litigate the plaintiff’s claim.

34 In July 1972 the plaintiff’s case was reviewed by Dr Gill, a consultant psychiatrist. The diagnosis was then noted as “Neurosis/Phobia”. The clinical notes refer to the previous notes (mentioned above) and a consultation that evidently occurred on 5 July 1972. A somewhat different history about his flying was obtained –

“Fear of flying developed about 67-68 after seeing a number of airplane crashes at sea and on land. In ‘68 after flying helicopters pre Vietnam & fear became well established spreading to Civilian Aircraft and trains – now persists.”

35 The following note is potentially significant – -

“P.P.H - Says is not really depressed [semble until] ’70.

Some fear closed in feelings aboard ships.

Fear planes trains persist.”

36 Dr Gill firstly thought that his drinking habits were excessive but wondered whether they were moderate for a sailor. Dr Gill’s opinion was –

“Although a somewhat impulsive personality there is no history suggesting preceding Neurosis re anxiety, phobia etc. Allowing for the fact he did not like the Navy his fear of observed crashes appears realistic – i.e. a specific learned behaviour with generalisation to transport – reinforced by car crashes.”

37 In light of the opinion, I think it is almost certain that Dr Gill did not get from the plaintiff that he had been involved in the collision and did not ask any questions that would have been likely to elicit this information. If he had been told that the plaintiff had been involved in that collision without any ensuing emotional problems it is most unlikely that he would not have noted this fact. Of course, if he had been informed of the plaintiff’s experience in this regard and had been told of any ensuing emotional problems then a fortiori he would have made a note of it. In the result, Dr Gill thought no treatment was indicated and that the plaintiff’s “adaptation and insight” were good. At this point the naval records so far as the plaintiff’s psychiatric state is concerned come to an end.

The plaintiff applies for a veteran’s pension

38 After the plaintiff’s discharge from the Navy, what the plaintiff described as “the problems I suffered from” namely heavy drinking, nightmares, anxiety and phobias continued. However, the plaintiff attributed these symptoms to his war service in Vietnam. He did not seek any psychiatric or other psychological medical assistance or even discuss these matters with his doctors. He said that he did not think of himself as having an injury or illness but simply bad memories of some bad experiences that he did not seem to be able to forget. In short, he tried to cope. Eventually, the plaintiff’s drinking problem seems to have lead to a duodenal ulcer, which burst and sent him to hospital. After discharge from hospital he was required to take medication.

39 Shortly after this, a friend advised him that he might be able to get a pension from the Department of Foreign Affairs to pay for his medicine. The plaintiff says that he was not thinking about applying for a pension for any psychological or psychiatric condition – he still had no idea that he was suffering from such a condition.

40 The plaintiff contacted Mrs Loretta Higgins of the Vietnam Veterans’ Counselling Services in Shepparton Victoria and met with her and her husband (also a Vietnam veteran) in November 1991. Without going into the detail of that conversation, it seems that the plaintiff described not only his drinking problem and how long he had had it but also the psychological problems for which he had seen naval psychiatrists when he returned from Vietnam. He described these “problems” and told them about his anxieties, nightmares and phobia about flying. He disclosed his service history, mentioning that he had been on HMAS Melbourne when it collided with HMAS Voyager.

41 Not surprisingly, Mrs Higgins focused on the plaintiff’s time in Vietnam, almost certainly I think because that was war service and thus provided a basis for obtaining a pension. The plaintiff said that Mrs Higgins told him that she thought that he was suffering from PTSD. He said that this was the first time that he had ever heard that term. Mrs Higgins told the plaintiff that it was not uncommon for those who had served in Vietnam to suffer from that condition and that the symptoms he told them about were typical of it. She made no mention of the collision.

42 Mr and Mrs Higgins suggested to the plaintiff that he should make a claim to the Department of Veterans’ Affairs and obtained a form, which Mrs Higgins filled in for the plaintiff. The plaintiff signed the form, verifying the information as truthful. It was his belief that Mrs Higgins sent the claim form to the Department. The plaintiff was cross-examined about the form. I accept that the information in the form came from the plaintiff but that the guiding hand and mind, as it were, of the way in which the information that he gave was expressed in the form was that of Mrs Higgins. The plaintiff agreed that he understood that Mrs Higgins was telling him that his PTSD was a medical condition.

43 The plaintiff’s claim for a veteran’s disability pension and medical treatment is dated 20 November 1991. The disability and its symptoms are described as –

“Post traumatic stress disorder – anxiety, sleep disturbance, anger, aggression, nightmares, restlessness, inability to cope generally and with work.”

44 These symptoms were first noticed, according to the form, “on service”. The form also mentioned tinea, first noticed on service and a duodenal ulcer first noticed in 1991. So far as the PTSD is concerned, the form referred to “unknown psychiatrist Saigon (referred by my commanding officer) in late 1969” and to Dr McGeorge and an unidentified psychologist whom was plainly Mr E Van-Diitselaar. As far as the ulcer is concerned, the plaintiff’s general practitioner is named and his relevant treating specialist. The form also mentions the motor vehicle accidents in which the plaintiff was involved in Vietnam, leading to a leg injury, in late 1969 and early 1970. A general description is given, almost certainly, I think, collated by Mrs Higgins from what the plaintiff told her and, I suspect, expressed in a way that Mrs Higgins thought would be particularly relevant to the PTSD from which it is likely she believed the plaintiff may have been suffering as a result of his war service in Vietnam. The form asked applicants to “explain how the conditions of your service caused, contributed to, or aggravated the disability(ies) now claimed”. The form states (some abbreviations expanded)–

“Active Service with an assault helicopter coy. In S.V.N; Tropical conditions, Non active but service included being on HMAS Melbourne collided Voyager; Nature of service and physical conditions related to claimed disabilities re: stressful nature, anxiety, life threatening, fear circumstances; presence injured and dead; mortar and rocket attacks, considerable demands placed on me to keep (my duties) unit functional, night shift and picket duties; long hours; broken sleep; uncomfortable physical conditions; limited provision of facilities for everyday existence incl. personal requirement such as toilet facilities/maintenance; dietary restrictions, washing etc.”

45 In answer to the relevance of the claimed disabilities to employment the form stated –

“Since discharge have moved in and out of various positions, all of which have ended [because of] difficulties of one sort or another, varying from being put off to walking off – until able to work with self and still with difficulties.”

46 It is clear that as of the date of the application the plaintiff ascribed his psychological difficulties to causes other and later than his involvement in the collision.

47 Part of the process for obtaining a disability pension required the plaintiff to provide the Department with what is called a lifestyle report. I do not intend to set out the whole of the material in that report. The following appears to be of particular importance –

”Due to my war [I think a reference to the Vietnam war] neurosis I am finding that my medical condition is worsening and also my ability to cope. My bouts of depression, anxiety and poor sleeping pattern leave me feeling exhausted and I feel very sad and unhappy and often feel that I would just like ‘get away from everything’. I feel that my life is ruined due to my Vietnam service and without my wife and family I doubt that I would have any quality of life whatsoever. Over the years preceding my failing health I had been restless, unsettled and moving from job to job which has taken its toll on me and my family. I feel my condition is chronic and never ending and that no therapy or medicine can help. I am at a loss to feel or understand why I am like this but can guarantee that prior to my war service my life was satisfying and worthwhile so it leaves me with the conclusion that the war has caused all this and I can never be the man I once was.”

48 This passage (as with the bulk of the form) was written out by Mrs Higgins. The effect of the plaintiff’s evidence was that, although the words were Mrs Higgins’, they stated what he had conveyed to her although he did not know the meaning, for example, of “war neurosis”. The plaintiff agreed in cross-examination that he was, in effect, normal before this service in Vietnam and believed it to be true but that, since the report, he had been advised by a psychiatrist that this was not the case. In further cross-examination the plaintiff confirmed that the problems that he had described such as anxiety, sleeplessness, nightmares and so on started whilst he was in Vietnam but, apart from fear of flying, were not present before then. The fear of flying occurred somewhat earlier as already mentioned, when the plaintiff was in training for his Vietnam service. It is obvious that this evidence conflicts with other evidence (to which I have referred) given by the plaintiff about the onset of some of his symptoms. The existence of these documents is a substantial forensic advantage to the Commonwealth.

Medical examinations for veteran’s pension

49 The Department arranged through Dr Sneyd, the plaintiff’s general practitioner, for a consultation with a psychiatrist. Shortly after this the plaintiff obtained legal advice from Mr Tobin, a solicitor suggested by Mrs Higgins. Mr Leifman, in Mr Tobin’s office, spoke with the plaintiff and arranged for him to see Dr Marinivich, a psychiatrist whom he saw before filling in the lifestyle report. The plaintiff said that Dr Marinivich asked him about his war service in Vietnam and may have asked him about his prior service in the Navy or even about being on HMAS Melbourne when it collided with HMAS Voyager but the plaintiff did not recall this. The plaintiff said that Dr Marinivich did not tell him that the collision had anything to do with his problems. The departmental form filled in by Dr Marinivich is part of the records that have been produced.

50 On 4 November 1992, at the Department’s behest, the plaintiff was examined by Ian Parkin, a consultant psychiatrist, who duly reported to the Department. A relatively full history appears to have been taken by Dr Parkin. It is fair to say, I think, that the bulk of the symptoms referred to focus, in one way or another, on the plaintiff’s service in Vietnam. The doctor’s history states, “he was a heavy drinker from Vietnam through till about 4 years ago but has recently slowed this down completely”. The doctor concluded as follows –

“I believe that this man has suffered from an alcohol abuse and dependence disorder. He used to drink to a point of amnesia in the past but has recently stopped this. I believe that his alcoholism has contributed significantly to his gastro- intestinal ulcer. I believe that his alcoholism commenced in Vietnam and that it was to some degree triggered by his experiences there. I believe that he does satisfy the criteria for a post traumatic stress disorder. I believe that his post traumatic stress disorder was related to the ongoing traumas of his Navy experience. I believe that Vietnam was probably the most significant ongoing trauma but that he has really suffered a number of traumas…”

51 The doctor noted that, shortly after joining the navy, the plaintiff was posted to HMAS Melbourne whilst a number of his mates were posted to HMAS Voyager and that he was on Melbourne when it collided with Voyager, killing some of his friends. The doctor noted, “he was involved in getting some of the survivors onboard and this was a pretty grisly experience”. Dr Parkin noted that, throughout the plaintiff’s service, “he saw numerous air crashes including fatal ones [and at] other times he was subjected to severe storms and as such he mentioned a typhoon at sea and one bad storm in the Great Australian Bight when steel bulkheads on the Melbourne were buckled”. The plaintiff agreed in cross-examination that, in effect, the history related to Dr Parkin was given by him, although he no longer remembers the detail.

52 In the result the Department granted the plaintiff a 40 per cent pension, as the plaintiff understood, primarily for his ulcer with a small component for PTSD. He said that this decision simply confirmed what he believed to be the case, namely that his psychological problems, such as they were, were due to his war service and he did not give the matter any more thought at that time. In March 1997 the plaintiff applied for an increase in his pension and was granted a small increase.

The plaintiff gets legal advice

53 In April 1995 or thereabouts the plaintiff read in the newspapers that the Federal Government had set up some sort of scheme to pay compensation to sailors who were on HMAS Voyager when it collided with HMAS Melbourne. He did not think it was relevant to him because he was on Melbourne. Sometime later, in September 1995, he saw an advertisement in the Melbourne Age placed by a Mr James Taylor, a solicitor in Myrtleford, inviting crewmen on both Melbourne as well as Voyager to contact him about compensation claims. The plaintiff said that he was aware that the US Government had agreed to pay compensation to all servicemen who had been exposed to agent orange during their time in Vietnam and he thought that this might be some sort of similar arrangement to compensate sailors who had been on Melbourne as well as those on Voyager. He contacted Mr Taylor’s office and ultimately spoke to a solicitor there. The plaintiff told him his history. The solicitor then told him that the PTSD that the plaintiff had been informed about arising out of his application for a pension may have been caused in the first place by the collision and aggravated by his time in Vietnam. He was told that he would need to see appropriate doctors and get reports on his condition. The plaintiff said that this was the first time it had ever occurred to him, or anyone had suggested, that his psychological problems may have been caused in the first place by his involvement in the collision.

54 On 24 April 1995 the then relevant Commonwealth Ministers announced that the Government had decided on a scheme to settle outstanding compensation claims arising from the sinking of Voyager. Whilst the ministers emphasised that the Government’s decision to settle the Voyager claims should not be regarded as a precedent for any other common law actions, the Ministers said “other crewmembers able to demonstrate a related injury or loss…will have twelve months to claim”. The news release concluded with the following –

Melbourne

Voyager

55 It is evident from this document that the Government had anticipated for some considerable time the possibility that the crew of Melbourne might have claims arising from the collision, although, at the same time, it considered that the “Voyager survivors” (semble, crewmembers of Voyager) fell into a different class to members of the crew of the Melbourne.

56 In September 1995 Mr Taylor sent the plaintiff a circular letter saying that the Government’s scheme discriminated against Melbourne crewmembers and stating that he expected to have the first case of such a crewman “before the courts within six weeks”. Mr Taylor said that when that case succeeded, he believed that the Government would offer compensation to Melbourne crew members along the same lines as had been offered to those from Voyager. Not surprisingly, the plaintiff awaited the outcome so confidently predicted before taking any further actions. In September 1995 Mr Taylor addressed a circular letter to former Melbourne crewmen, including the plaintiff as I understand it, drawing to their attention a court decision which was said to have supported the arguments advanced in the earlier circular letter as to the likelihood of success in the case of a Melbourne crewmember. Mr Taylor again intimated that the Attorney General for the Commonwealth had made some statements suggesting that the Commonwealth “should admit liability in all cases” whatever that meant. The letter concluded, “this decision effectively allows those persons serving on the Melbourne who suffered injuries to proceed”.

57 The plaintiff said that he was still unsure about making a claim and did not do anything further until early 1996 when he made an appointment to see Mr Taylor following a conversation with another former naval servicemen. The plaintiff said that during his interview with Mr Taylor he was told of the need to get medical evidence to establish that there was a connection between the collision and the PTSD from which he suffered and also that it was desirable to await the outcome of a test case being brought on behalf of another sailor before doing anything further. I assume that this test case was the decision to which Mr Taylor’s circular letters had referred. In July 1997 Mr Taylor wrote to the plaintiff asking for money to pay for the costs of commencing proceedings, which was done on 22 August 1997.

58 In November 1997 Mr Taylor referred the plaintiff to Dr Brendan Holwill, a psychiatrist, for a report. Dr Holwill saw the plaintiff on 17 November 1997 and reported that day to Mr Taylor. Dr Holwill’s report states a history basically similar to that contained in the plaintiff’s affidavits read in this proceeding, although differing in some respects unlikely, I think, to prove significant. Dr Holwill’s opinion, in part, was that the plaintiff “presented a history of now chronic moderately severe post traumatic stress disorder dating from 1964 when he was serving on the Melbourne when it collided with the Voyager…”. The doctor then refers to continuing frightening and distressing events occurring thereafter both before and during the plaintiff’s service in South Vietnam. Dr Holwill concluded –

“I believe that his psychiatric conditions of chronic post traumatic stress disorder with associated moderately severe phobic anxiety, mild to moderately severe depression and substance abuse (alcohol) can be directly attributed to his service experience.”

59 In his affidavit of 7 December 2000 the plaintiff said that he had read Dr Holwill’s report and that Dr Holwill had accurately recorded what he had told him. In cross-examination the plaintiff said that he did not remember any of the specific details that he had given Dr Holwill but agreed that, at the time he saw him, he was suffering from the symptoms that Dr Holwill described in his report. However, the plaintiff says that it was to Dr Holwill that he first gave a comprehensive history of “the traumas I have suffered whilst in the Navy including the first trauma which was the major trauma of being involved in the HMAS Melbourne/HMAS Voyager collision”. The plaintiff said that Dr Holwill told him that he was suffering PTSD and substance abuse disorder and explained that the former condition was caused by his involvement in the collision and not his service in Vietnam but rather that his service in Vietnam had acted as a trigger. The plaintiff says that it was a consequence of his attendance on Dr Holwill that he now understands to some degree the nature and extent of the psychiatric disorder from which he is suffering and that the first time he had been informed that he was suffering from such a disorder – presumably by a doctor since Mrs Higgins had earlier told him that she thought he suffered from this condition – was when Dr Holwill explained it to him on 18 November 1997.

60 On 1 February 2000, at the behest of the Commonwealth, the plaintiff saw Dr Jonathon Phillips, a consultant psychiatrist, who concluded that there was a link between the plaintiff’s experiences in Vietnam and the development of his specific phobic disorder and, to a lesser extent, “his more generalised but low level symptoms of anxiety” but that there was no evidence suggesting that his involvement in the collision either initiated his psychological problems or aggravated them. Dr Phillips doubted that the plaintiff had suffered PTSD at any time as his symptoms did not appear to be sufficiently serious to satisfy the relevant criteria. He also opined that that, although the plaintiff had been aware of the link between his Vietnam service and his psychological symptoms for many years, he doubted that “he had made any clear link between the navl collision and psychological problems in the past”.

61 In October 2002 the plaintiff was referred by the Department to Dr Christopher Percival, a psychiatrist. Dr Percival noted that the plaintiff made “spontaneous complaints…[relating] to a period of 5 years between 1964 when he was serving on HMAS Melbourne when that aircraft carrier collided with the destroyer HMAS Voyager and 1969 when he went to Vietnam with the Royal Australian Naval Helicopter flight...”

62 Dr Percival records a history similar to that given by the plaintiff in evidence following on from the collision. Dr Percival’s report is thorough and comprehensive. Indeed it is in marked contrast to all the reports thus far produced as a result of the plaintiff’s interaction with medical professionals. The doctor concludes –

Melbourne

Voyager

63 It appears that Dr Percival intended to send a copy of this report to both Dr Sneyd and the plaintiff, at least that is indicated at the end of the letter addressed to the Department. The evidence does not disclose whether this indeed happened.

The course of proceedings

64 Following the filing of the statement of claim and the notice of motion seeking an extension of time, the Commonwealth required the plaintiff’s solicitors to provide further and better particulars. That request was made on 5 October 2001. It appears that there was some dispute between the solicitors as to the extent to which the material requested was required to provided. There was also, as I understand it, some delay in the provision of other information by the plaintiff’s then solicitor Mr Taylor to the Commonwealth. It is difficult for me to ascribe responsibility for the delay. It is clear that the Commonwealth itself delayed substantially before seeking any information in the first place. It appears that Mr Taylor at one stage had a breakdown in his health and this might have contributed to delay, although this is rather speculative. I do not think however (and it is not suggested), that any of whatever delay is attributable to the plaintiff’s side was the result of the plaintiff’s failing to act reasonably or as expeditiously as in the circumstances he was able to do. In 2004 the file was transferred from Mr Taylor’s firm to the plaintiff’s present firm and it appears to be agreed that since then the matter has proceeded expeditiously.

The Commonwealth’s evidence

65 A number of affidavits were read by the Commonwealth, in general describing the attempts to locate relevant documents from Commonwealth and other sources including the Shoalhaven Hospital and the plaintiff’s employers. Mr Taylor wrote to the Commonwealth on 26 September 2002 referring to the request for further and better particulars and taking into position they were not required to be provided prior to the “extension of time application”. The meaning of this letter is somewhat obscure but, be that as it may, the Commonwealth did not take the matter up or make any additional requests until 20 November 2003, concerning the plaintiff’s financial position, and 9 February 2004, concerning personal particulars of persons with whom the plaintiff served, details of his apprenticeship as a fitter and turner, names and contact details of RAN personnel who were with the plaintiff at the time of the collision and during the rescue operations and the aftermath, the names and contact details of other RAN personnel who were with the plaintiff when he went ashore after the return of Melbourne to port and any other personnel able to give evidence about his alleged dislike of confined spaces and that he slept on deck, or any persons to whom he made these feelings known. Detailed particulars were also sought about the plaintiff’s RAN service in Vietnam of which the following is an illustrative example –

“28. Was the plaintiff engaged in any service under hostile conditions where he was involved in action where he (or he fellow serviceman) engaged the enemy and killed (or attempted to kill) any enemy combatants as part as his role as a helicopter gunner. If so, please provide full details, including the following –

(a) The number of occasions the enemy was engaged;

(b) The number of enemy combatants killed;

(c) The full names, ranks and contact details of any fellow servicemen, who were with the plaintiff and engaged in the same action, who could attest to the plaintiff’s presentation and demeanour at that time.”

66 On 28 July 2004 the Commonwealth wrote to Mr Taylor noting the omission to answer the previous letters seeking further and better particulars, consolidating the requests and deleting questions which were no longer pressed. Not surprisingly, questions such as that set out above were deleted. Many but not all of the details sought have since been provided, in the form of the plaintiff’s affidavits filed in support of the present application.

67 I was not provided with a precise analysis of the ways in which it is alleged the supplied particulars are still inadequate and I do not propose for myself to analyse the affidavits and the plaintiff’s evidence to compare that material with the particulars sought. As I have mentioned, I made it clear to the parties who tendered voluminous documents on the application that I did not propose to read any document to which specific reference was not made. The widespread habit of tendering vast quantities of paper and then making submissions that refer in generalities to the evidence or parts of it is quite inappropriate. It requires judges to trawl through the material to assess which parts actually support the submissions and, in effect, to construct the case that counsel has not done – or cannot do. This is not a proper role for a judge to undertake. Nor is it appropriate to attempt to construct a case through affidavits in which the deponent, in effect, makes submissions. Where a trial is before a jury, of course, such an approach is impossible. The brevity of submissions is seen as advantageous – the trial is apparently shorter and costs correspondingly less. The consequence, however, is that, all too often, the trial continues in the judge’s chambers as the judge wades through the masses of paper in an attempt to identify which parts are relevant to which submission and in what way, without the benefit of an analysis by the parties dealing with the particular details. As I have said, the result is that the judge, in effect, constructs the cases on each side in order to arrive at a final conclusion. For obvious reasons this is inappropriate, quite apart from increasing massively the workload of the court.

68 Mr Barry QC informed me that I would observe that in the course of cross-examination he would be taking the plaintiff to a number of particular matters which were the matters which his client would regard as being important for me to consider and that, as he did it, he would identify where those matters are in the tendered material. The summary of evidence I have given covers those matters as well as other material referred to, though not always identified, in submissions. I have not thought it either necessary or right to consider the material to which counsel did not refer.

69 The Commonwealth principally relied upon the evidence of Ms Elena Ordiz, a senior lawyer in the civil litigation team in the office of the Australian Government Solicitor. Amongst other things Ms Ordiz deposes as to her employment of investigators to attempt to identify the relevant witnesses and other investigations of doctors, hospitals and employers. So far as RAN personnel are concerned, the plaintiff has identified a number of relevant or likely to be relevant persons and, of course, extensive naval records also provide information of potential witnesses. Investigators armed with those names were asked to make enquiries about these persons and, particularly, whether any was aware of or acquainted with the plaintiff. A number of witnesses or potential witnesses were located. However, in respect of those who said that they recalled the plaintiff either at service or on the Melbourne or subsequent postings, no statements were taken from those witnesses by the investigator as to relevant matters. Furthermore, it appears that those responsible in the AGS for conducting this litigation have not sought to contact those persons for the purpose of taking statements. I do not propose to set out in this judgment the details of the witness investigation. It is fair to say that only a few witnesses have been identified, that they may well be able to give evidence but that no attempt has been made to discover what that evidence might be. The approach of the Commonwealth to this matter, as I understand Mr Barry’s submission, is that it is for the plaintiff to show that a fair trial can be conducted and that it is immaterial that the Commonwealth has not attempted to obtain evidence from the identified witnesses who are potentially relevant. Where witnesses were able to recall the plaintiff the approach of the interviewing solicitor who spoke to that witness sometimes reflected a significantly inadequate grasp of the issues in respect of which it was hoped to elicit information. Thus, for example, Ms Ordiz’s affidavit refers to a conversation conducted by a Ms Uzma Abbas with Mr Rohrsheim (as to whom see para 55) to the following effect –

Voyager

HMAS

Hermes

70 Of course Mr Rohrsheim’s name was mentioned by the plaintiff, not in connection with the collision but in connection with his service at the “Bomb Dump” at Albatross in 1967. The failure of Ms Abbas to bring to Mr Rohrsheim’s attention the relevant area of service is surprising. It seems to me obvious that one could not conclude from that conversation that Mr Rohrsheim was unable to give relevant information. Another example is a conversation by Ms Collogan of Ms Ordiz’s office with Mr Farthing who also served with the plaintiff at Albatross whilst he was training for Vietnam and subsequently –

Melbourne

Voyager

Mr Farthing: Well I knew him as Doc Smith.

Ms Collogan: Did you know him before the collision and after the collision or did you just serve with him in Vietnam?

Mr Farthing: I didn’t know him in 1964. I wouldn’t have known him until we were getting ready for Vietnam in 1969.

Ms Collogan: Did you ever notice he displayed any withdrawn, antisocial or odd behaviours specific to Mr Smith?

Mr Fathing: Certainly not. We took a very selective group to Vietnam. If he did have anything like that, he wouldn’t have made it. In fact there were a couple who didn’t make it, but I can say adamantly that he didn’t display anything otherwise he wouldn’t have been taken to Vietnam.

Ms Collogan: Did he ever discuss with you his experience of the collision?

Mr Farthing: Never.

Ms Collogan: Did he ever discuss his problems with you?

Mr Farthing: Never.

Ms Collogan: Thank you for your time.”

71 Although this conversation suggests that Mr Farthing would be unable to say anything to assist the plaintiff, he might well be able to say a number of things that assisted the Commonwealth. However, the questions were scarcely calculated to elicit from Mr Farthing what it was that he knew about the plaintiff. At the same time, it might be thought that the following conversations put these enquiries in a somewhat more realistic context –

“Ms Collogan: I am calling about a Mr David Ronald Smith who has a claim against a claim against the Commonwealth at the moment. Do you mind if I ask you some questions about him?

Mr Mayo: No.

Ms Collogan: Do you recall Mr Smith from your service in Vietnam.

Ms Collogan: Did you know him before your service in Vietnam or did you just know him when you served together?

Mr Mayo: I trained with him before we left and then we served together.

Ms Collogan: When you knew him did you notice any withdrawn, or antisocial behaviour, difficulty concentrating anything odd about his behaviour?

Mr Mayo: Well most of us were like that. We are all getting shot at. Being shot at isn’t very nice you know.

Ms Collogan: Did you know him well on a personal level, did he ever discuss any issues etc?

Melbourne

72 It seems that Mr Mayo well have been implying that, indeed, he did notice that the plaintiff had exhibited one or more of the personal attributes Ms Collogan had asked about but that Mr Mayo thought they resulted from being shot at, that is to say from being in a stressful situation where life was at hazard. However, the conversation noted by Ms Collogan does not really enable any assessment to be made about whether Mr Mayo in fact intended to convey this implication. The nature of Ms Collogan’s enquiry was – as is the case with the other examples I have given – rather unsatisfactory.

73 The Commonwealth has been unable to locate Dr Gill, Dr Irwin, Dr Rhine, Dr Gauci. Of these perhaps the most significant is Dr Gill. It seems to me that a number of other witnesses were contacted by the Commonwealth who might have well been able to give relevant information but, because of the approach to obtaining relevant information the enquiries of them were far less thorough than the circumstances called for, indeed, surprising so.

74 In September 2005 Ms Collogan had telephone conversation with a Mr R G Ray during which the following was said –

“Ms Collogan: I am calling about a court matter that we have at the moment where Mr David Ronald Smith has made a claim against the Commonwealth arising out of the Melbourne/Voyager collision. Do you recall a David Ronald Smith from your service?

Mr Ray: Yes, we were a close-knit squadron. What rank was he?

Ms Collogan: He was a NAMW.

Mr Ray: Naval Airman Mechanic Weapons.

Ms Collogan: Did you know him before the collision or did you only serve with him after the collision?

Mr Ray: Only after.

Ms Collogan: Did you ever notice any rift, anti-social or strange behaviour of note?

Mr Ray: Most people that were there and that served after were odd after. If I noticed anything I would have noted it on his service record. You knew the ones that were involved with Voyager.

Ms Collogan: Did he ever discuss his experience in the collision with you?

Mr Ray: I never spoke with him specifically, you just went to the pub and had a beer and that was how you did it.

Ms Collogan: Did he ever discuss his problems with you?

Mr Ray: No, he was a weapons guy though. If I had noticed any lack of progress I would have done something and I can’t remember anything.”

75 Ms Ordiz said that for something over the past two years she has been responsible within the office of the Australian Government Solicitor for the carriage of cases involving claims arising out of the collision. Ms Ordiz said, however, that she was unaware of any correlation between the names of any possible witnesses relevant to the plaintiff’s case with statements provided to the Royal Commissions into the collision. Nor has there been any check with other cases either finalised or pending arising out of that collision with statements of witnesses taken in connection with those cases. No attempt has been made to contact the HMAS Melbourne Association to identify potential witnesses nor with the HMAS Voyager Association. Ms Ordiz said that she is responsible for about fifteen cases in this litigation of something of the order of one hundred. She agreed that it was self-evident that many, or at least some, of the witnesses in one of those matters might well be relevant in others. Ms Ordiz was sure that cross-referencing had occurred but was not aware of any outcome. A database has been created (as seems sensible) to enable relevant witnesses to be more readily identified but Ms Ordiz did not know whether anything in that database revealed information material to the plaintiff’s case. I gather from Ms Ordiz’s evidence that this kind of cross-referencing would not occur until it was necessary to prepare for the trial in the event that the extension of time were granted. At the same time, it is fair to observe that Ms Ordiz estimated that her affidavit referred to something like 90 per cent of the witnesses likely to be of any relevance.

Discussion

76 In his submissions, Mr Barry QC said that the “real point in this case on the extension of time application is the difficulties associated with the Vietnam experience…and the onset of the conditions that led to psychiatric treatment initially in Saigon and then the reference when he was back in Australia…” He submitted that there may have been some minor psychological disturbance not amounting to a psychiatric condition prior to Vietnam which was exacerbated or the Vietnam experiences may have supervened. Mr Barry submitted that “the real issue is can there be a proper trial of these issues now – and this is our main point in this application – in the absence of Dr McGeorge specifically”. Mr Barry submitted that “it’s almost inconceivable he wouldn’t have asked about the Melbourne/Voyager collision” because, as I understand the argument, the doctor would have had the plaintiff’s file which would have disclosed that he was serving on Melbourne at the time of the collision.

77 I do not accept this contention. Given the content and number of the clinical notes to which I have referred, Dr McGeorge’s evidence would be most unlikely to have been of much more than marginal assistance to the Commonwealth, even had the plaintiff’s action had been commenced in time and the Commonwealth therefore having been able to consult with Dr McGeorge about the plaintiff’s condition. I think that it may safely be inferred that Dr McGeorge noted, albeit briefly, everything that he regarded as material. In treating psychiatric conditions, perhaps more than physical injuries, complete histories are vital and notes of the history given by a patient are correspondingly important. Had Dr McGeorge obtained a history from the plaintiff that included his involvement in the collision and excluded that event as having being relevant to the plaintiff’s condition, it is inescapable that he would have made a note to this effect; a fortiori if he had obtained such a history and regarded it as relevant.

78 I have mentioned that the Commonwealth has been unable to locate Dr Gill. Mr Barry QC did not refer to his absence. I note that Dr Gill’s report is available. I would be surprised if he were able to recall any details of his consultation with the plaintiff. As with Dr McGeorge, I think that it is probable that, even had Dr Gill been contacted in the course of preparation for a trial where the proceedings had been commenced within time, he would not have been able to go any further than his notes.

79 Mr Barry QC tendered a “Schedule of Prejudice” which is set out below, omitting references. It is a table showing potentially relevant documents that have been destroyed and the numbers of potential witnesses, how many have been located and a very brief description of the outcome of contact.

Date	Event	Evidence of Prejudice
1971	Consultation with GP.	Identity unknown.
27/3/69	Shoalhaven Hospital admission.	No hospital records available.
Late 1969	Consultation with psychiatrist in Saigon.	Identity of psychiatrist unknown.
1971	Consultation with psychiatrist in Sydney.	Identify of psychiatrist unknown.
04/07/00	Search by Defence Legal for education files of Plaintiff.	No files found.
05/10/01	Search for File 1/62408 “entry, personal details, discharges” of Plaintiff.	File destroyed.
05/10/01	Search for File 5/62408 “removals” of Plaintiff.	File destroyed.
05/10/01	Search for File 5/55849 “removals” of Plaintiff.	File destroyed.
05/10/01	Search for File 351/7/1417 “reengagement” of Plaintiff	File destroyed.
05/10/01	Search for File 264/16313 repat?	File destroyed in 1984.
05/10/01	Search for File 253/8/626 “removal”.	File could not be located.
07/12/01	Plaintiff’s post-Naval employment history.	No records relating to Plaintiff’s employers: Textiles webbing; Ilanco products; Tuckerbag’s; Haywoods Electroplating; Royal North Shore Hospital.
02/02/04 and 5/10/05	Identification of RAN servicemen who were in the same location as the Plaintiff at the time of the collision.	Of the 53 persons identified, 19 could not be located, 6 did not wish to assist, 22 did not recall the plaintiff, 2 had a vague recollection of the plaintiff, 1 has commenced proceedings, 2 are dead and 1 recalled the plaintiff.
23/09/05 and 5/10/05	Identification of RAN servicemen who were in the same intake as the Plaintiff.	Of the 22 persons identified, 14 persons either not identified, unable to be located or did not respond; 5 persons did not recall the Plaintiff; 3 persons recalled the Plaintiff.
23/09/05 and 5/10/05	Identification of RAN servicemen in the same branch as the Plaintiff at time of collision.	Of the 43 servicemen who served in the same branch as the Plaintiff, 20 were either not identified, unable to be located or did not respond; 3 did not wish to assist; 5 are deceased; 9 did not recall the Plaintiff; 1 has commenced related proceedings; 2 too ill to give evidence; 2 recall the Plaintiff, 1 not in the same branch as the plaintiff.
23/9/05 and 5/10/05	Identification of RAN servicemen who were involved in the same rescue operations as the Plaintiff.	2 servicemen identified by the Plaintiff as being corroborative witnesses (Wainwright and Glass) either did not recall the Plaintiff or did not wish to assist. Of a further 11 servicemen identified, 4 did not recall the Plaintiff and 7 did not respond; a further possible corroborative witness identified by the Plaintiff (Padre William Bates) did not respond.
23/09/05	Identification of RAN servicemen who served in the same branch as the Plaintiff following the collision.	18 former servicemen did not respond to inquiries; 11 could not recall the Plaintiff; 3 are now deceased; 3 did recall the Plaintiff.
23/09/05	Identification of RAN officers who reported on the Plaintiff concerning aspects of his RAN service.	Of 28 relevant persons identified, 4 could not be located, 6 are now deceased,;, 1 did not wish to assist; 14 did not recall the Plaintiff and 3 recalled the Plaintiff.
29/09/05	Identification of RAN treating medical officers.	Of the 6 relevant persons, 4 could not be located and 2 have no recollection of the Plaintiff.

80 The table extracts information from the extensive affidavits and exhibits to which I have already referred. In respect of the destroyed files, what actually might be in them and what of value has been lost is not explained. The fact is that extensive medical and other files have survived. In my view, although the lost documents may have filled some lacunae in the complete service biography of the plaintiff, they are unlikely to be of any actual substantial forensic significance. The table shows that a number of potentially relevant witnesses are indeed available.

81 As far as the collision itself is concerned, as has been frequently mentioned in other cases, two Royal Commissions enquired into and reported on it. It is difficult to accept that there is any lack of evidence concerning the collision itself. So far as the effect of the events on Mr Smith is concerned, there is nothing in his description of them that seems unlikely to be true and considering the likelihood that anybody in close proximity to him who might have noticed him would be in essentially the same predicament, it seems most improbable that they would have taken much notice of him or what he was doing except, perhaps, to say that he was as panic-stricken as they. It should be remembered that he was eighteen at the time of these events.

82 I regarded the plaintiff as a truthful witness, although legitimate criticisms can be made of the reliability of his recollections. These problems, however, rather reflect on his ability to make his case and are not, in a real forensic sense, prejudicial to the Commonwealth. I accept the evidence of the plaintiff as to his knowledge of the existence of a personal injury. I accept that he had not heard of the condition PTSD until seeing Mrs Higgins in November 1991. I am quite sure that the plaintiff did not understand the nature of this condition. I think that the most he made of it was that it was a description of his symptoms rather than a psychiatric injury. Indeed, I think that he was mystified rather than illuminated by Mrs Higgins’ information. In other words, he was troubled by the symptoms described in the form filled in for him by Mrs Higgins for the purpose of seeking a pension but did not think of those conditions together as demonstrating a distinct or, indeed, any psychiatric illness. I accept the plaintiff that it was only when he spoke to Dr Holwill that he appreciated that he did suffer from an illness and that it was instigated by his experiences during the collision and its immediate aftermath. I think it likely, moreover, that the plaintiff attributed his symptoms, centring on what I might describe as his quasi-claustrophobia (speaking as a layperson) of which his phobic fear of flying was perhaps the most intense, as essentially deriving from his experiences in Vietnam. Plainly enough, he was aware that to some degree these feelings were present before he went to Vietnam but they gained potency during and after his service there. It is probably self-evident that at no point did he attempt to objectively analyse his situation for the purpose of understanding the relative contributions particularly of shocking or troubling events made to the thoughts and feelings of a negative or troubling kind that he was feeling. Nor is it reasonable to expect that he should have done so.

83 The plaintiff said that he had not followed the press reports of the Royal Commissions and was unaware of the alleged negligence of the Commonwealth until he read what his solicitor had put in the statement of claim. I accept this evidence.

84 In short, I accept that the plaintiff was unaware until he saw Dr Holwill that he had PTSD and that it was at least in part caused by or attributable to his experiences during and immediately after the collision. In fairness, I observe that Mr Barry QC did not ultimately submit otherwise. The thrust of the argument before me related to the requirement that the limitation period can only be extended if (the other pre-conditions being satisfied) “it is just and reasonable to do so”: s 60T. Another way of putting this test is whether there has not been such prejudice to the defendant that a fair trial cannot be had.

85 The notion of a fair trial is not a precise one. Frequently, an interplay of different circumstances need to be evaluated. In Holt v Wynter (2000) 49 NSWLR 128 Priestley JA said (at 142) –

Brisbane South [Regional Health Authority] v Taylor

necessarily

…

Motor Accidents Act

86 Sheller JA, with whose reasons Meagher and Handley JA and Brownie AJA agreed, said that the effect of Brisbane South was that “an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in a significant prejudice to the potential defendant”: quoted with approval by Giles JA (with whom Stein JA and Hodgeson CJ in Eq agreed) in McLean v Sydney Water Corporation [2001] NSWCA 122 [19]; see also Commonwealth v Smith [2005] NSWCA 478 per Santow JA at [127] – [129].

87 It is clear that the plaintiff bears the ultimate onus of satisfying the court that the it is just and reasonable to extend the period but the Commonwealth has “an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend”: Smith [2005] NSWCA per Santow JA at [131]. In Sydney City Council v Zegarac (1988) 43 NSWLR 195, Mason P said (at [197]) –

Brisbane South

88 In Gretton v Commonwealth [2005] NSWSC 437 McDougall J noted –

[49] But the Commonwealth’s evidence did not show that it could not make a case relying on those who did remember Mr Gretton and who were prepared to help. Indeed, the Commonwealth’s evidence on this point was less than forthcoming. Its evidence simply showed, at best, whether or not [the investigator] had located the potential witnesses and whether or not they recalled Mr Gretton. On cross-examination, however, three points became apparent.

Melbourne

89 These observations apply also to the present case. As it seems to me, not only should I conclude that the Commonwealth has not suffered prejudice in respect of materials that it has itself destroyed but, in respect of the potential witnesses whom it has identified, it has not satisfied the evidentiary onus of proving prejudice, so far as their evidence is concerned as, in effect, it deliberately did not seek full statements from them: cf Smith [2005] NSWCA per Santow JA at [138]–[140].

90 Leaving aside the availability of potentially relevant witnesses, it is not as I understand it maintained or, at least it is not strongly pressed by the Commonwealth, that the documentary material available to the Commonwealth is significantly incomplete. Thus, Ms Ordiz deposes that the plaintiff produced relevant to a subpoena of production on behalf of the Commonwealth, some RAN documentation including his Certificate of Service. She described this latter document as a contemporaneous record of the plaintiff’s actual service, including his performance, achievements and progression during his time in the RAN. It is submitted, in substance, that this document is merely a starting point for locating witnesses who reported on the plaintiff and recorded their comments on his Certificate of Service. A large number of the persons who signed the Certificate, it is said, could not be identified from their signatures. Leaving aside the likelihood that unidentified signatories would remember any detail of the plaintiff probative of the issues in the case, it seems to me that their identities or at least most of them are likely to be ascertainable from other records, given the details which appear on the Certificate.

91 As I have already mentioned, the nature of the plaintiff’s case is not such as would have made it likely that anyone but the most perspicacious observer would have realised that anything was significantly amiss with him during the period up to, at least, the immediate pre-Vietnam training period. Even if the plaintiff’s action had been commenced within the limitation period, it is unlikely that, given the nature of his condition and his description of what he then experienced, any of the persons whose lost identities the Commonwealth complains about would have been able to give significant evidence, one way or the other. I recognise that this analysis assumes the reliability of the history that the plaintiff has given. However, if his symptoms were more marked than he has asserted (so that the witnesses might have been able to given material evidence) then that would assist the plaintiff and not the defendant. It is difficult to see how anyone would have noticed that the plaintiff’s symptoms were less marked than he has described, since he has in effect said that they were not such as would have led someone to notice, with the exception of course that he wished to sleep on deck. However, I think that too nice a logical analysis is inappropriate and that the approach should be one of practical judgment about the likely course of that trial. If I may say so with respect, this seems to me to be the approach adopted by Barr J in Smith v The Commonwealth [2004] NSWSC 873 and McDougall J in Gretton v The Commonwealth [2005] NSWSC 437, the Court of Appeal in the former case not suggesting that such an approach was mistaken.

92 The Commonwealth has access to the RAN’s medical records relating to the plaintiff, which strike me as comprehensive. Although some of those doctors are dead, some have been able to be contacted and others who are alive do not recall the plaintiff. I do not think this leads to any actual prejudice. Even if the action had been brought in time, it is improbable that, having regard to the reasons for seeking treatment, the doctors involved would have recalled the plaintiff. More significantly, the nature of the consultations would have been most unlikely to have given rise to the obtaining of any history (either in a positive or negative sense) material to the issues in this case. Mr Barry QC virtually conceded as much in his submissions, focusing on the absence of Dr McGeorge as being productive of actual prejudice. For the reasons I have already given, I do not think that the absence of Dr McGeorge does give rise to any actual prejudice to the Commonwealth in its conduct of this case.

93 Much is made by Mr Barry QC of the complicating feature that there appears to be a ready explanation for the plaintiff’s condition in and when he left Vietnam in the sense that the stressors during that period were significant. The most marked symptom suffered by the plaintiff is his phobia about planes, linked with his fear of being between the decks of a ship and in a train. (I note that none of these disabilities strike me as having much significance in terms of compensatory damages.) However, the first two symptoms and possibly the third appear to be accepted by the Commonwealth, though it disputes their cause. In the result, the Commonwealth has access to extensive medical reports dealing with the plaintiff’s psychiatric condition from shortly after his return from Vietnam. Elucidation, therefore, of those symptoms does not seem to be a significant problem in the case: the substantial problem is that of causation. It is the other symptoms that the plaintiff asserts affecting more generally his well-being and ability to undertake worthwhile employment that are more significant but, by that very token, much less likely to have been observed by persons whom he came across either socially or otherwise unless they happened to be close acquaintances.

94 The AGS has attempted to obtain information about the plaintiff’s post RAN employment with little success although the plaintiff has produced his tax returns from 1964 onwards. The Commonwealth submits, as I understand it, that in order to deal both with the economic loss and the causation aspects of the plaintiff’s case the employment records and the persons alongside whom he worked should be available. Taking a practical view of this matter, in light of the issues in this case, the inability of the Commonwealth to obtain information from the identified employers is not to my mind productive of any actual prejudice. To put it otherwise, I am satisfied that no actual prejudice arises from this lacuna in the theoretically relevant evidence: the trial may be imperfect but it will not be unfair.

95 I have concluded that there is no actual prejudice to the Commonwealth arising from an extension of time. Of course, that leaves the effect of presumptive prejudice and the expiry of the limitation period itself to be considered. Having regard to the issues in the case as I understand them, I do not think that the presumptive prejudice derived from the delay in bringing proceedings would render any trial of the plaintiff’s claim unfair or unjust. Nor, bearing in mind the relative positions of the plaintiff and the Commonwealth, do I consider that the reliance, if any, by the Commonwealth on the lack of any action by this plaintiff (when he became aware of his condition) is of such a significance as to lead to a refusal of the extension. In this regard, I note that there have been many applications for extension of time in cases not dissimilar to that of the plaintiff arising out of the collision, many of which have been granted and some of which have been refused but in none of which has this latter consideration bulked large, although its relevance is undoubted.

Orders

96 I order that the limitation period for the cause of action be extended until the day on which the statement of claim was filed, namely 14 August 1997.

97 The question of costs will be determined following further submissions of the parties.

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Citations

Smith v Commonwealth of Australia [2006] NSWSC 689

Most Recent Citation

Commonwealth of Australia v Smith [2007] NSWCA 168

Cases Citing This Decision

1

Commonwealth of Australia v Smith [2007] NSWCA 168

Cases Cited

8

Statutory Material Cited

1

Commonwealth of Australia v Diston [2003] NSWCA 51

Commonwealth of Australia v Smith [2005] NSWCA 478

CITATION:	Smith v Commonwealth of Australia [2006] NSWSC 689
HEARING DATE(S):	12 & 13 October 2005
JUDGMENT DATE :	6 July 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	1 The limitation period for the cause of action be extended until the day on which the statement of claim was filed, namely 14 August 1997.; 2 The question of costs will be determined following further submissions of the parties.
CATCHWORDS:	Claim from Voyager collision - Melbourne crewmember - limitation defence - significance of failures by defendant to keep records and make enquiries - evidentiary onus of proof - whether actual prejudice
LEGISLATION CITED:	Limitation Act 1969 ss 58, 60
CASES CITED:	Commonwealth v Neil Patrick Smith [2005] NSWCA 478 Gretton v Commonwealth [2005] NSWSC 437 Groves v The Commonwealth (1981-1982) 150 CLR 113 Holt v Wynter (2000) 49 NSWLR 12 McLean v Sydney Water Corporation [2001] NSWCA 122 Parker v The Commonwealth (1964) 112 CLR 295 Smith v The Commonwealth [2004] NSWSC 873 Sydney City Council v Zegarac (1988) 43 NSWLR 195
PARTIES:	David Ronald Smith (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 20785/97
COUNSEL:	Mr P G Mahony SC with Mr J Sharpe (Plaintiff) Mr C J Barry QC with Mr D Brogan
SOLICITORS:	Riordan Legal (Plaintiff) Australian Government Solicitor (Defendant)