Spaulding v Commonwealth of Australia

[2006] NSWSC 29

CITATION:	Spaulding v Commonwealth of Australia [2006] NSWSC 29
HEARING DATE(S):	12/12/05, 13/12/05, 14/12/05
JUDGMENT DATE :	10 February 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed.
LEGISLATION CITED:	Limitation Act 1969 Limitation of Actions Act 1623 (Imp)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 McLean v Sydney Water Corp [2001] NSWCA 122 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Telstra Corporation v Rea [2002] NSWCA 49
PARTIES:	Barry Thomas Edward Spaulding v Commonwealth of Australia
FILE NUMBER(S):	SC 20768/01
COUNSEL:	John Sharpe (Plaintiff) G Laughton SC / D Brogan (Defendant)
SOLICITORS:	Hollows Solicitors (Plaintiff) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 10 February 2006

20768/01 Barry Thomas Edward Spaulding v Commonwealth of Australia

JUDGMENT

1 BELL J: The applicant was a member of the crew of HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager. He seeks to bring a claim in negligence against the Commonwealth for damages for personal injury arising out of the collision. This is an application brought pursuant to s 60G of the Limitation Act 1969 (NSW) (the Act) that the limitation period for the cause of action be extended for such period as the court determines.

2 The notice of motion seeking the extension of time and the applicant’s statement of claim were filed on 12 September 2001.

3 The respondent, the Commonwealth of Australia, opposes the extension of the limitation period, submitting that the applicant has not brought himself within the threshold requirements of s 60I of the Act and, in the event that he has, that it is not just and reasonable to grant the extension that is sought.

4 The applicant was born on 4 July 1931. The six-year limitation period under the Limitation of Actions Act 1623 (Imp) that applied to his cause of action expired on 11 February 1970.

5 The applicant pleads the following particulars of injury:

(a) Severe shock;
(b) severe anxiety and depression;
(c) fear of going to sea;
(d) difficulties with sleeping, nightmares and night sweats;
(e) irritability and fatigue;
(f) sexual impotence;
(g) difficultly in concentrating, making decisions and solving problems;
(h) mood swings, frustration and isolation;
(i) obsessive compulsive behaviour;
(j) chronic post-traumatic stress disorder (PTSD) with avoidance symptoms and arousal symptoms;
(k) emotional detachment;
(l) attempts to medicate himself by heavy use of alcohol and tobacco with consequential impairment of body function (tobacco addiction ceased 1988 approximately);
(m) hypertension;
(n) acid reflux and indigestion;
(o) body sweats;
(p) irritable bowel syndrome;
(q) high cholesterol;
(r) ulcers;
(s) ischaemic heart disease;
(t) alcohol dependence.

6 It is the applicant’s case that, but for the collision and the injuries that he sustained therein, he would have progressed through the ranks and remained in the Navy until retiring at or about the age of fifty-five years. His claim includes a claim for economic loss arising out of impairment of his capacity to earn income and the loss of the chance that he would have qualified for Defence Force and Death Benefit entitlements on his retirement.

7 At any trial the Commonwealth will not put negligence in issue. The issues would be whether the applicant suffered any psychiatric injury as the result of the collision and, if so, the amount of any damages.

8 Section 60G(2) of the Act provides:

If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.
The applicant bears the onus of establishing that it is just and reasonable for the court to grant the extension that is sought.

9 Section 60I(1) of the Act provides:

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) The plaintiff:
(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) that application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).

10 “Personal injury” is defined in s 11 of the Act to include “any disease and any impairment of the physical or mental condition of a person”.

11 The applicant swore three affidavits in support of the relief claimed in his motion. The first annexed a report of Robert Wilks, a clinical psychologist, dated 4 April 2001 and a report of Dr Hopwood, a psychiatrist, dated 4 May 2001. The second affidavit, which was sworn by the applicant on 18 February 2005, has a number of documents exhibited to it, which were tendered at the hearing and to which I will return. The third affidavit was sworn on 9 December 2005 and annexed a number of medical reports. The applicant was cross-examined at some length on the hearing of the motion.

12 The applicant was born in Queenstown, Tasmania on 4 July 1931. In his first affidavit he describes an unremarkable childhood. He gives an account of the schools that he attended to Grade 8. Thereafter he left school and started work as a trainee salesman/window dresser with a firm called Cleggs Silks. He remained in this employment for around three years before leaving to pursue his ambition to go to sea. He obtained employment as a coal fireman on the Melbourne Harbour Trust Dredges. He was dissatisfied with the absence of sea duties in this employment and after eighteen months he joined the Navy. He commenced as a naval recruit in January 1951. He signed up for a six-year term to see whether naval life suited him.

13 The applicant says that he enjoyed his naval service, but that in January 1957 when his term expired he decided to give civilian life a try. Between February 1957 and mid-September 1959 he had various civilian jobs, including at the Abbotsford Brewery and as a mail sorter at the PMG Depot. During this time he was a member of the Fleet Reserve. On 16 September 1959 he rejoined the Navy, signing up for a further period of six years.

14 The applicant was posted to the crew of the Melbourne in January 1964 with the rank of Acting Petty Officer (Radar Division).

15 In his first two affidavits the applicant gives an account of his recollection of the night of the collision. He was working in the Radar Room. Other members of his shift included Ordinary Seamen O’Connor, who was talking via the radio to members of the crew of the Voyager at the time of the collision, and Leading Seaman Wallent. The applicant was charting the movement of merchant ships in the vicinity of the Melbourne. He recalled feeling a vibration and a thump and thinking that the Melbourne had hit a whale. A petty officer came into the Radar Room, saying that the Melbourne had run over the Voyager. The applicant opened the door of the Radar Room and was able to look out over the starboard side of the Melbourne. He saw the stern of the Voyager and heard hissing and the sound of sirens. He says that he was concerned for the crew of the Voyager and for the safety of the crew of the Melbourne and himself. He recalls the remainder of the evening as something of a blur. He remained working in the Radar Room for a number of hours.

16 The applicant has no recall of going back to sea after the collision. He was posted to HMAS Cerberus. He remained attached to Cerberus until the end of his engagement in September 1965. He says that he could not tolerate the prospect of returning to sea duties and that he asked a divisional officer whether, if he signed on again, he could be given a permanent shore posting. He was told that this would not be possible. He says that as the result of this advice he did not sign on for a further term.

17 After his discharge from the Navy the applicant obtained employment as a salesmen with National Mutual, Victoria. Following this, in the years 1967 and 1968, he worked as a field representative with Waltons Pty Ltd, Dandenong. Between 1968 and 1972 he was a sales representative with Gibson Kelite Chemicals of Moorabbin. From mid 1972 to April 1974 he was a sales representative for Panasonic. In July 1974 he commenced employment as a sales manager with Hitachi Sales Australia Pty Ltd (Hitachi) in Queensland. He remained in this employment until his retirement in July 1996.

18 The applicant was married at the date of the collision. The marriage deteriorated some time after it. There was a period of separation around 1971. The applicant and his wife got back together and there followed a further period of separation in 1983. In 1988 the marriage came to an end.

19 It is the applicant’s case that prior to entering the Navy he was an occasional drinker. He described both his parents as having been moderate drinkers. His consumption of alcohol steadily increased after the collision. In the period since leaving the Navy the applicant says that he consumed alcohol to excess. In 1998 he had a heart attack and since that time he has moderated his alcohol intake.

20 The applicant says that for many years he has been plagued by recollections of the collision. He sees images of the stern of the Voyager sinking, these recur around every two months. From time to time he has dreams of being trapped in a ship and of struggling to get to the surface. He says that his sleep was fitful in the years after the collision and accompanied by nightmares. He became irritable after the collision and this played a major role in the deterioration of his marriage and also affected the quality of his relationship with his three children. Loud noises tend to startle him and increase his irritability.

21 The applicant has avoided discussion about the collision, preferring not to mention it. Anniversaries of the collision have been accompanied by significant increases in his drinking. He describes his mood as fluctuating and says that he has had intermittent thoughts of suicide.

22 In Commonwealth of Australia v Smith [2005] NSWCA 478 the Court of Appeal determined that when an extension of the limitation period is sought in a case of mental injury the question is whether the victim was aware that he or she suffered from a recognisable psychiatric illness: per Handley JA at [7], Santow JA at [104] and Basten JA at [181].

23 It is the applicant’s case that he first became aware that he had suffered psychiatric injury as the result of the collision when he saw a psychologist, Robert Wilks on 3 April 2001. Towards the end of the consultation Mr Wilks told him that he had the symptoms of Post Traumatic Stress Disorder (PTSD). This diagnosis was confirmed by Dr Hopwood, a psychiatrist to whom he was referred, and who provided a report dated 4 May 2001.

24 The applicant was referred to Mr Wilks and Dr Hopwood by his solicitor, David Forster. In his second affidavit the applicant stated that prior to seeing Mr Wilks and Dr Hopwood he had not disclosed to medical practitioners that he had been involved in the collision.

25 The applicant first made contact with Mr Forster on 7 February 2001. He was prompted to do so by a telephone discussion with his sister. It was in the course of this discussion that he came to learn that a member of the crew of the Melbourne had received an award of compensation and that Mr Forster had acted on that person’s behalf.

26 The history that the applicant gave to Mr Wilks included that in the period before leaving the Navy, while he was attached to HMAS Flinders, he had found that he was very irritable and that his smoking and drinking had increased. From 1964 he “sporadically [would] see the sinking Voyager”. Mr Wilks obtained a history that in the mid-1980’s the applicant began to experience a wider range of symptoms than the irritability, fear of being at sea, memories of the Voyager incident and excessive drinking and smoking which had troubled him from approximately 1964. He began to be troubled by poor concentration, insomnia, sporadic fatigue, vague suicidal thoughts, reduced interest in activities, nightmares of “trying to get out of somewhere”, a tendency to excessively check his house locks, panicky episodes, exaggerated startle and sporadic patches of general tensions and/or sad moods. The applicant told Mr Wilks that from 1964 he had not sought treatment for his symptoms, save for two visits to a psychiatrist in 1998. The latter appears to be a reference to the two visits to a psychologist, Ms Windley.

27 The history taken by Dr Hopwood in the course of his interview with the applicant on 3 April 2001 included that the applicant refused to go back to sea following the collision, that he was constantly troubled by intrusive recollections of the incident and that he had flashbacks of the stern section of the Voyager sinking every one to two months. Dr Hopwood also noted that the applicant described dreams occurring approximately weekly to fortnightly of being trapped in a ship. Dr Hopwood recorded that the applicant’s ex-wife reported that in the years immediately following the collision he would wake several times a week with nightmares, often yelling out. The applicant gave an account that since the collision he had been generally hyper-aroused and constantly on edge. He reported irritability in association with the increased arousal. Dr Hopwood obtained a history of significant alcohol overuse dating to the time of the collision. He also obtained a history of episodic symptoms of depression, during which the applicant’s mood would be lowered for up to several days and life would seem pointless and futile. During these times the applicant reported occasional, fleeting suicidal thoughts, often involving planning for a solo car accident. The depressive periods were generally short-lived and the applicant was unable to recall a period where he had been depressed each day for longer than two weeks.

28 The applicant’s history included that he had been prescribed Prothiaden by his general practitioner in 1998. In evidence the applicant acknowledged this was so and that he knew Prothiaden to be an antidepressant medication.

29 Dr Hopwood recorded that the applicant presented as a co-operative man, but that he had clearly found difficulty in describing all the details of his history. He noted that the applicant described his mood at the date of interview as not depressed, whereas objectively his affect was marked by mild depression and with clear evidence of anxiety.

30 Dr Hopwood considered the applicant met the criteria of chronic PTSD for the majority of the period from 1964 until the date of his report. He considered the applicant’s symptoms to have undergone some mild improvement over recent years, which could represent a response to his treatment with Prothiaden. Dr Hopwood raised the possibility of some unreliability in the applicant’s recall given the difficulty he exhibited in relating aspects of his history. Dr Hopwood considered any difficulties likely to be related to ongoing anxiety and to the history of alcohol misuse.

31 Cross-examination of the applicant was directed to establishing his awareness that he suffered from a mental condition as the result of his experience of the collision. The applicant gave these answers to these questions in cross-examination:

Q. And your fear of the sea was a significant disability for you wasn’t it?
A. Yes.
Q. It was so significant that it caused you to give up what was otherwise a career that you decided that you wanted to have in 1957?
A. Yes, from that stage, yes.
Q. That signified to you, did it not, that you had a significant problem?
A. Oh, I don’t know about significant problem but it was upsetting because I wanted to stay in the Navy and I couldn’t.
Q. But that’s a significant problem, isn’t it, for all the reasons that we’ve talked about: your love of the sea, your love of Navy life, and those sorts of things. Your inability to go to sea represented a significant disability to you, didn’t it?
A. Well, not a disability, more a disappointment.
Q. But so far as you were concerned, you were disabled to the extent that you couldn’t go back to sea?
A. No, I won’t go along with disabled. I’d say disappointed.
Q. But you’d suffered no physical injuries in the collision, had you?
A. No.
Q. Your being scarred of the sea represented to you a mental problem?
A. I suppose, yes (T 65.38-66.14).

32 Generally, in cross-examination it was sought to establish both that the applicant knew he had symptoms such as irritability, increased drinking, increased smoking, intrusive thoughts and nightmares and that he knew these symptoms had emerged after the collision. While in the passage that I have set out above the applicant finally conceded that his condition of being scared of the sea represented a mental problem, I am satisfied that he was not aware that this fear was a symptom of a psychiatric illness. On more than one occasion he explained that he viewed his fear of going to sea as a disappointment as distinct from a disability. I am satisfied that he did not understand his various symptoms, including irritability, thoughts of the stern section of the Voyager sinking, bad dreams, heavy drinking and smoking to amount to a recognised psychiatric illness.

33 In his second affidavit the applicant stated that in 1998 he had consulted a psychologist, Carol Windley, on two occasions. He described himself as having been very stressed, uptight and bad tempered at the time. He said that the collision did not arise in the course of his discussions with Dr Windley and that she had not told him that his symptoms might be related to the collision. He recalled Ms Windley saying something about his marriage break-up being responsible for his difficulties. It was his impression that Ms Windley did not know what was the cause of his problems. He did not bother returning to see her.

34 There is some significance to the timing of the applicant’s attendance on Ms Windley for psychological counselling. In evidence the applicant said that he had seen Ms Windley after having an angina attack. He acknowledged that the date of his attendances on her might have been in 1999.

35 Documents produced by Ms Windley suggest that the applicant’s attendance on her was in April and May 1999. Ms Windley arranged for the applicant to undergo testing, including a post-traumatic stress scale test. The testing appears to have taken place in April 1999. A notation on the “psychometric test battery results/summary” suggests that the tester understood Ms Windley had referred the applicant, among other things, for trauma associated with the sinking of the Voyager. It is likely that this was not prominent in the applicant’s discussions with Ms Windley, who in a short report dated 9 December 2005, made no reference to it. She recorded that on initial assessment that applicant reported that he was being treated for blood pressure and angina after a serious angina episode in July 1998 and that he was abstaining from alcohol. I accept the applicant has no recall of discussing the collision with her. His memory is that he went to see Ms Windley because he was anxious as the result of suffering from angina and this is consistent with Ms Windley’s brief report. There is nothing to suggest that Ms Windley diagnosed the applicant to be suffering from any recognised psychiatric illness.

36 I am satisfied that the applicant first became aware that he was suffering from a recognisable psychiatric illness as the result of his discussion with Mr Wilks and the contents of the Wilks report. This was reinforced by the applicant’s consultation with Dr Hopwood and the contents of the Hopwood report. I have concluded that the applicant is not precluded from obtaining an order extending the limitation period by reason of the operation of s 60I(1)(a) (i) to (iii). It remains necessary to consider whether, for the purposes of s 60I(1)(b), the applicant ought to have become aware of all three matters listed in subparagraph (a)(i)-(iii) at some time prior to 12 September 1998.

37 In the respondent’s submission, at least by 1993 – 1994 the applicant ought have had the requisite awareness because he was experiencing regular thoughts of suicide. These should have prompted him to seek psychiatric assistance and had he done so it is likely that his condition would have been diagnosed.

38 In the course of cross-examination the applicant gave this evidence:

Q. It’s the case, is it not, that at the time you started thinking about suicide in 1993 – 1994 you at the very least would have been concerned about your mental health?
A. No. I can’t relate this to mental health. I just took life as it was.
Q. But you were thinking about killing yourself?
A. So?
Q. As early as 1993 and 1994?
A. Hmm hmmm.
Q. And you did it more than once, didn’t you?
A. Yeah.
Q. In 1993 and 1994?
A. Thought about it?
Q. Yes?
A. Yes.
Q. And you say in paragraph 7, there were times in 1993 and 1994 – how often were you thinking about killing yourself?
A. Oh, I don’t know, probably once a fortnight once a month. Just in a place in my mind I thought, yeah, I could do that. And then I thought no, that’s crazy.
Q. And by 1993 or 1994 you were depressed, weren’t you?
A. I don’t know.
Q. There were days when you were feeling down and there were days when you were feeling better?
A. Well, everybody has that.
Q. And there were days when you were feeling so down that you thought about committing suicide?
A. No, not really. Not feeling down. I would just drive around and think about it and say just do it there and then …
Q. But you didn’t …
A. No.
Q. Let me finish the question.
A. Sorry I thought that was the question.
Q. You didn’t take any steps to obtain treatment for it?
A. It didn’t really worry me.
Q. And that was because you weren’t seriously thinking about suicide, or was it because they weren’t concerning you sufficiently to seek assistance?
A. I thought I was alright (T 94-95).

39 What a person “ought” to know or be aware of for the purposes of s 60I(1)(b) must take account of the circumstances of the particular applicant: Smith at [109] per Santow JA (with whose reasons Handley JA on this point substantially agreed) citing Telstra Corporation v Rea [2002] NSWCA 49. In Smith Santow JA observed at [109]:

The basal question in relation to Mr Smith was therefore what someone so circumstanced as he was, ought to have been aware of in relation to each of the three matters in s60I(1)(a). This must take into account his mental impairment, the instructions he received from his superiors [a reference to Mr Smith’s evidence that he had been instructed not to talk to anybody about the collision once they were ashore] and any other circumstances bearing upon his capacity to appreciate that he needed to consult a psychiatrist to find out if he was suffering from “any impairment of [his] mental condition” and if so, its nature and extent.

40 In his report Dr Hopwood observed at p 8:

7. Comments on difficulties Mr Spaulding may have had coming to terms with what has happened to him
It is clear that Mr Spaulding has had great difficulty in “coming to terms” with the traumatic incident outlined above. Highly consistent with the diagnosis of chronic post-traumatic stress disorder he has avoided any in depth discussions or reminders related to the incident until recently. The depth of this avoidance is highlighted by his refusal to return to sea after the collision despite a long previous history of experience at sea and a successful career in the RAN being put at risk. It is very common of this avoidance, which is an essential part of the diagnosis of post-traumatic stress disorder, that it may lead to long delays in seeking treatment assistance. Essentially, this relates to fear that the arousal associated with discussing the traumatic event will be overwhelming if the individual enters treatment. I thus considered the delay in Mr Spaulding seeking appropriate psychiatric treatment consistent with the diagnosis of chronic post-traumatic stress disorder entirely.

41 Dr Hopwood commented on the applicant’s significant history of alcohol overuse dating back to the time of the collision. In Dr Hopwood’s opinion, the applicant has met the criteria for alcohol dependence since at least 1965. Dr Hopwood observes that alcohol dependence is a form of co-morbidity that is extremely common with PTSD.

42 In evidence the applicant showed little insight into his alcohol consumption as evidencing a problem. It was suggested to him in cross-examination that one of the reasons that he had drunk so much was to assist him to sleep, to which he responded that he used to drink because he liked to drink. When it was suggested to him that the drinking had helped him to cope he responded, “Not really. I enjoyed it” (T 85 at 9 and 11). The submission that the applicant should have sought psychiatric assistance around 1993-1994 when he was entertaining thoughts of suicide and, thus, that he ought to have become aware of the three matters listed in paragraph (a)(i)-(iii) is not one that I accept. The applicant was an alcoholic travelling salesman, who on bad days had thoughts of staging a fatal car accident. He did not act on these thoughts. I think it likely that his alcoholism impaired his capacity to appreciate the need to seek psychiatric assistance given the content of his thinking. Taking into account Dr Hopwood’s opinion that I have set out at paragraph [42] above, I do not find that the applicant ought have become aware of all three matters listed in s 60I(1)(a)(i)-(iii).

43 I have concluded that the applicant is not precluded by operation of s 60I(1) from obtaining an order extending time pursuant to s 60G.

44 It is necessary for the applicant to demonstrate that it is just and reasonable that time should be extended in the circumstances of this case.

45 In Smith Santow JA discussed the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and observed at [127]:

This apparent divergence in the judgements in Brisbane South was discussed by Priestley JA and Sheller JA in Holt v Wynter (2000) 49 NSWLR 128. That was a case which concerned s 52(4) Motor Accidents Act 1988, which required “leave of the court” for proceedings to be commenced out of time. Although Priestley JA interpreted the differences between the judgments in Brisbane South otherwise, the interpretation of Sheller JA (at 146-147), with whom Meagher JA, Handley JA and Brownie AJA agreed, reflected the majority view. Sheller JA concluded that:
“the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

His Honour went on to note at paragraph [128] that “significant prejudice” means such prejudice as would make the chances of a fair trial unlikely. The absence of proof of significant prejudice does not mean that the court is bound to grant leave since it must still be shown that it is just and reasonable to do so (at paragraph [129]).

46 It is the respondent’s case that to allow the applicant to bring his claim after the this interval of time would expose it to significant prejudice. Particulars of the prejudice are set out in a schedule, which refers to paragraphs in the affidavits of Donna Ann Robinson, the solicitor with the carriage of the matter on the respondent’s behalf.

47 The first matter of prejudice that is identified is the absence of records and witnesses to attest to the applicant’s capacities, motivation and future desires in the pre-collision period. The respondent has undertaken extensive investigations arising out of the information furnished by the applicant in his affidavits. These include making inquiries of the primary schools and the high school that the applicant attended. These have not produced records of relevance. It does not seem to me that the absence of school records, or of witnesses who remember the applicant’s conduct at school, constitutes significant prejudice. The applicant was aged 33 years at the date of the collision. Of somewhat greater potential significance is consideration of the observations of persons who knew him in his adult life before the collision.

48 Inquiries in an endeavour to locate the applicant’s first employer, Cleggs Silks, have not been successful. Neither the Abbotsford Brewery (Carlton & United Brewery) nor the PMG Deport (Australia Post) hold employment records relating to the applicant’s employment in the period between 1957 and 1959 when he returned to civilian life. No witnesses are available to the respondent who have knowledge of the plaintiff in the period prior to the date when he first joined the Navy.

49 As at 13 December 2005 the respondent had obtained contact details for six of the 12 of the persons who were identified as having supervised the applicant in the years 1951 to 1957 and 1959 to 1965. Of the six who had been located, five were unable to recall the applicant and one reply was outstanding.

50 The respondent has made inquiries of former members of the Radar Plotters Branch who were attached to the Melbourne at the date of the collision. Few have any recall of the applicant. The responses recorded in a report prepared by an investigator include:

David Champion - “I knew him only as a shipmate at Watson and Melbourne”;
Donald Hill - recalled the applicant, but not very well. Recalled that the applicant had been a leading seaman who was senior to him. He would not have mixed socially with him;
Errol Kelly - “The name is very familiar. I believe I worked with him but I cannot recall where”;
Robert Noble - “Yes I knew him to work with. He was an easygoing sort of person”;
William Quinton - “Yes, he was PO or CPO on the watch in the Operations Room at the time of the collision”.

The brief details of the responses set out in the investigator’s report (annexure 17 to Ms Robinson’s affidavit) do not establish that those who recall the applicant may not be able to comment in greater detail as to his conduct and habits if asked to do so, but I accept that the lengthy interval of time makes this unlikely.

51 In this case it does not appear that the applicant’s credit will be in issue. In light of the inconsistencies in the history given by him to Mr Wilks and Dr Hopwood, it is reasonable to consider that his reliability will be a prominent consideration in the assessment of the medical evidence. The respondent is not without material to test the applicant in this respect. I have concluded that the unavailability of witnesses able to comment on the applicant’s conduct, drinking habits and general demeanour in the period prior to the collision is not a prejudice such as to make the chances of a fair trial unlikely.

52 In her affidavit of 26 July 2005 Ms Robinson refers to the history given by the applicant to Mr Wilks and Dr Hopwood of his experience of the collision. Annexed to her affidavit is a true copy of the diagnostic criteria for PTSD contained in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition. She notes that the diagnosis of PTSD requires that a person be exposed to a traumatic event involving actual or threatened death or serious injury, or a threat to physical injury of self or others and that it also involves the person’s response being one of intense fear, helplessness or horror (paragraph 32). Ms Robinson expresses the opinion that for the respondent to fairly present its case it is necessary to locate witnesses who may have been in the vicinity of the applicant at the time of the collision and who had a recall of him and his involvement in the aftermath of the collision.

53 The applicant gave evidence at the first Royal Commission into the loss of the Voyager. Prior to giving evidence he answered a questionnaire recording his duties at the time of the collision and he provided a statement to the Commission. Senior counsel for the respondent informed the Court of his instructions that there was no challenge to the applicant’s honesty. I do not understand there to be any issue that the applicant was in the Radar Room at the time of the collision. He has given evidence that he continued duties in the Radar Room for a number of hours thereafter. It seems unlikely in the hours after this tragedy that persons who may have seen the applicant would have had occasion to take note of him. The absence of witnesses able to comment on the applicant’s duties and responses on the night of the collision does not constitute significant prejudice to the respondent in meeting his claim. (The investigator’s report to which I have referred suggests that former leading seaman Wallent’s current address may be known.)

54 Ms Robinson inquiries establish that a number of the applicant’s personnel records, including his application to re-enter the Navy, have been destroyed. There are no punishment returns or education files available that relate to the applicant. His psychology file has not been located and it appears unlikely that it will come to light.

55 The applicant has produced his Certificate of Service. This provides an account of each of his postings, the nature of his duties, and the identity of his supervisors. Records are also available of the results of various examinations undertaken by the applicant during the course of his naval service and the assessments made of him from time to time as to his character and efficiency. The absence of his complete personnel file does not seem to me to constitute significant prejudice to the respondent.

56 The applicant served on the Melbourne and HMAS Hawkesbury as part of the Far-East Strategic Reserve and he also reports service in the vicinity of the Montebello Islands. Ms Robinson notes that the former period of service includes service as part of the Malayan emergency and the latter includes possible involvement in nuclear weapons testing near the Montebello Islands. The applicant’s service in vicinity of the Montebello Islands was in 1952-1953. Crew lists for naval ships in the period prior to 1970 are not available. While the respondent’s inquiries concerning the applicant’s former naval colleagues are ongoing, to date, no witnesses are available who can comment on the applicant’s service in the Malayan emergency or in the vicinity of the nuclear weapons testing off the Montebello Islands.

57 It appears that the applicant reported that he had a “life-threatening experience at work in 1961” in the course of giving a history to medical staff at the Matter Hospital, Townsville (discharge summary, Exhibit 6).

58 The respondent submits that causation of any psychiatric injury will be a central issue at any trial. The absence of material available to the respondent concerning the applicant’s experiences in the Malayan emergency, at the time of the nuclear weapons testing off the Montebello islands and at the time of the life-threatening experience at work in 1961 are said to prevent it being able to adequately test this aspect of the claim. The evidence does not establish that the respondent is without access to records that would cast light on the exposure of members of the crew of the Melbourne and the Hawkesbury to any traumatic experiences during the Malayan emergency. Equally the evidence does not establish that the respondent is without access to records touching on the role played by naval vessels in connection with observations of nuclear testing in the vicinity of the Montebello islands. It is open to the respondent to have the applicant examined by medical experts who may take up with him the impact of earlier traumatic events in the course of his service career. He was not cross-examined on these matters in the course of the application.

59 The next item of prejudice relates to the relative absence of medical records concerning the period of the applicant’s service in the Navy and the absence of witnesses who recall treating him. A number of naval medical records recording treatment of the applicant are available. I do not propose to detail them. It is sufficient to note that they record attendances for a variety of minor complaints, which are not of a psychiatric nature. Inquiries have been made of former naval medical officers with a view to seeing if any recall their attendances on the applicant. As at the date of swearing her first affidavit, Ms Robinson recorded that no replies had been received to letters of inquiry in this request. It might be thought unlikely in the extreme that any of the doctors would recall attendances on the applicant more than forty years ago.

60 It is the applicant’s case that he did not complain of intrusive thoughts, nightmares, irritability, alcohol abuse disorder or the like to any naval medical officer. The applicant’s medical statement on discharge is available and records that on 16 September 1965 he complained that he was suffering from haemorrhoids, weakened eyesight as a result of radar watch keeping and that he had no claims for pension or compensation as the result of his service in the Navy. Taking into account the likely issues at trial, I do not consider the absence of evidence from naval doctors who, from time to time treated the applicant for physical complaints, to be a matter of significant prejudice.

61 In his second affidavit the applicant gives a detailed history of his attendances on doctors for a wide variety of ailments, including a number of conditions that are particularised as injuries for the purposes of his claim. Details of medical practitioners that he has seen over the years since 1985 are contained in a document produced by the Health Insurance Commission.

62 The respondent has made extensive investigations concerning the applicant’s medical history in the period following his discharge from the Navy in 1965. A number of medical records have been obtained on subpoena. Ms Robinson notes that the bulk of the material that the respondent has been able to obtain relates to his treatment in the period 1984 to 2004. There is a period of approximately nine years when there is no medical documentation relating to the applicant. Having regard to the nature of the applicant’s case, namely, that he did not complain to any medical practitioner of the symptoms described to Mr Wilks for the first time in early 2001 and given the extent of medical records available in the period from 1984 onwards, I do not consider the nine year gap in the records to constitute significant prejudice.

63 The applicant was cross-examined concerning the contents of a letter dated 12 February 2001 apparently prepared by his solicitors, Hollows Lawyers (Exhibit 5). In this letter the writer asserts:

We explained to you that it is most important that you say that all your problems occurred after the Melbourne/Voyager collision and that if you persist with this claim, you should speak to us prior to seeing a psychiatrist”.

The applicant attended a conference with a solicitor from Hollows Lawyers conducted on 7 February 2001. I am satisfied that he gave an account of his symptoms in that interview. It was not put to the applicant that he had falsely asserted that all his problems occurred after the collision in his discussions with Mr Wilks or Dr Hopwood. In these circumstances, while an issue may arise as to the propriety of the advice, I do not consider the assertion made in the solicitor’s letter to be material to my determination of this application.

64 In considering the question of whether the respondent has been prejudiced as the result of the difficulty in obtaining witnesses who may be able to comment on the applicant’s conduct and demeanour in the period after the collision, I note that the respondent has obtained proofs from a number of prospective witnesses:

· Peter Jepson who has known the applicant since the early 1970’s. He describes quite frequent contact with the applicant. He is in a position to comment on the applicant’s conduct and demeanour and extent of his drinking over a period in excess of thirty years.

· John Jenkins, was employed by Hitachi Sales to take over from the applicant at the time of the applicant’s retirement. Mr Jenkins worked for the applicant for three weeks to a month before taking over the position. Thereafter he had ongoing contact with him for some years. He is able to comment on the applicant’s demeanour in the late 1990’s and he gives an account of the applicant’s drinking habits in the period of their association.

· Edward Gladman, was a representative for various electrical firms and came to know the applicant when he took up his role as the area representative for Hitachi Sales. Mr Gladman is able to comment on the applicant’s drinking pattern and demeanour at social functions.

· John Forrest, a salesman, knew the applicant in the period between 1991 and 1996. During this time Mr Forrest had frequent contact with the applicant. He comments on the applicant’s demeanour and observations that he made of his alcohol consumption.

· Peter Rose, the former State Manager of Hitachi, Queensland, for the period 1980 to 1998. Mr Rose is able to comment on the applicant’s performance in his capacity as the country representative for Hitachi, Queensland. Mr Rose travelled every quarter to North Queensland to spend around three days with the applicant, making calls. He is able to comment on the applicant’s drinking pattern and conduct when mixing with dealers.

65 The applicant's son, Scott, has provided a lengthy proof to the respondent’s solicitors. Scott was aged three years at the date of the collision and is not able to comment on any change in his father as the result of it. However he is able to comment generally on his father’s personality, habits and behaviour in the years after his discharge from the navy.

66 To the extent that the applicant’s history includes that in the years following the collision he has engaged in excessive drinking, and exhibited irritability, social avoidance and the like, it seems to me the respondent has material available to it to permit this to be tested. I am mindful that there is an absence of witnesses able to comment on whether the applicant’s heavy drinking and irritability was evident in the period following the collision and appeared to be a change from his conduct prior to it. However, in light of the acceptance of the applicant’s credit I do conclude that this constitutes significant prejudice.

67 In addition to the applicant’s claim for the lost chance of having qualified for DFRDB entitlements, he pleads that he has suffered economic loss by reason of impairment in his capacity to earn income. This claim has not been particularised. It was not clear from the applicant’s evidence that any impairment is said to have been productive of actual loss. The respondent submits that it is significantly prejudiced in meeting the unparticularised claim for economic loss.

68 The respondent contended firstly that there are thirty-one years for which no employment records are available and that no records relating to the applicant’s qualifications, studies, courses undertaken, or the manner in which his work was conducted. As earlier noted, the applicant left school in Year 8 and commenced employment as a trainee salesman. It appears that on leaving the Navy in 1965 he pursued a career in sales and was, by and large, in regular employment in this capacity until his retirement at the age of sixty-five years. It is not clear what the absence of records relating to “qualifications”, “studies”, and “courses undertaken” is directed to. As to the manner in which his work was conducted, I note that his principal employment following his discharge from the Navy was with Hitachi and I consider there is material available to the Commonwealth permitting his performance in this employment to be assessed.

69 The applicant states that his commencing salary with Hitachi was $7,500 and that he had annual pay increases of approximately $500 a year. He also received an allowance to cover expenses. Exhibited to his second affidavit are copies of documents relating to his employment with Hitachi and his entitlement to superannuation benefits. Also exhibited to his second affidavit are Family Court documents including the consent orders made by the Court with respect to the property settlement at the time of the dissolution of his marriage.

70 The applicant has obtained copies of his income tax returns for the years 1991 to 1996. He does not have income tax returns covering the earlier period.

71 Records from Hitachi relating to the applicant’s superannuation entitlements and containing a statement of his annual salary for a number of years are available. The first of these dated 7 November 1974 contains a statement that the applicant’s current annual salary is $7,500. This affords some support for the reliability of the applicant’s recall of his annual salary at around 1974. Annual certificates for the years commencing 1 March 1975, 1976, 1977 and 1978 do not record the applicant’s annual salary but merely furnish details of his instalment contribution for the year, his death and disablement benefit and his “retirement benefit multiple”. Certificates issued for the years beginning 1 March 1979, 1980, 1981, 1982 and 1983 each include a statement of the applicant’s annual salary. Certificates for the years beginning 1 March 1984, 1985, 1986, 1987, 1988, 1990, 1991, 1992, and 1993 contains a statement of the applicant’s “annual salary for superannuation purposes”. Certificates dated 1 July 1994 and 19 September 1995 contain statements of the applicant’s annual salary. In addition to the superannuation documents there are letters signed by the Managing Director of Hitachi that record the applicant’s annual salary effective from 1 July 1993, 1 July 1994 and 1 July 1995.

72 Mr McKewen, an accountant, comments that the particulars furnished on the applicant’s behalf as to gross income figures for the years 1974 to 1990 have been taken from the superannuation advices provided by Hitachi and that these show the applicant’s annual “salary for superannuation purposes” and not his gross annual salary. This is true for a number of the years to which he refers. Mr McKewen observes that a comparison between the annual “salary for superannuation purposes” and the gross income recorded in the applicant’s taxation returns (where available) shows a discrepancy between the two. The income reported in the annual returns is somewhat higher than the figure given as the salary for superannuation purposes. It may be that this is explicable on the basis of the receipt of commissions or some other benefit from Hitachi. It seems to me that the material in the Hitachi superannuation documents, together with the income tax returns for the later years, is sufficient to permit the respondent to adequately test the applicant’s claim for economic loss insofar as it arises out of his twenty years’ employment with Hitachi.

73 There is an absence of independent evidence concerning the applicant’s income in the period between 1965 and 1974. The applicant has given evidence of his approximate gross earnings during the period of his employment with Gibson Kelite (second affidavit paragraph 36). This figure is open to be assessed against the applicant’s starting salary at Hitachi. I have concluded that the respondent is not without material available to enable it to form a proper assessment of any claim for economic loss.

74 It is recognised that for a trial to be fair it need not be perfect or ideal: Smith per Santow JA at [129] citing Holt v Wynter (2000) 49 NSWLR 128 per Priestley JA at 142; McLean v Sydney Water Corp [2001] NSWCA 122; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477. I have concluded that a fair trial may still be held to determine the applicant’s claim. Breach of duty has been admitted by the respondent. In all the circumstances I consider that it is just and reasonable that time should be extended to permit the applicant to bring his claim.

ORDER

Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed.

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