Syaranamual v Commonwealth of Australia

[2001] NSWSC 170

CITATION:	Syaranamual v Commonwealth of Australia [2001] NSWSC 170
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20293/96
HEARING DATE(S):	2 February 2001 and 9 February 2001
JUDGMENT DATE:	20 March 2001
PARTIES :	May Syaranamual (Plaintiff) Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M Joseph SC (Plaintiff) Mr P Jones (Defendant)
SOLICITORS:	Mr J Taylor of Myrtleford Victoria (Plaintiff) Mr C Ktenas Crown Solicitors Office (Defendant)
CATCHWORDS:	Extension of limitation period - Melbourne/Voyager - son killed - Mother's nervous shock
LEGISLATION CITED:	Limitation Act 1969 (NSW) Compensation to Relatives Act 1987
CASES CITED:	Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Mazzeo v Caleandro Guastalegname & Co [2000} VSCA 230Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 Holt v Wynter [2000] 49 NSWLR 128 Szerdahelyi v Bailey; Ortado v Bailey (all unreported NSWSC, unreported Badgery-Parker J, 1 May 1997) Council of thre City of Sydney v Zegarac (1997-98) 43 NSWLR 128 Dow Corning Australia Pty Ltd v Paton, Mears v Paton (NSWCA, unreported 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995) Jaensch v Coffey (1983-84) 155 CLR 549
DECISION:	(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 25 March 1996; (2) Costs are costs in the cause.

22

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 20 MARCH 2001

20293/96 - MAY SYARANAMUAL v
COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of limitation period;

Mother’s nervous shock)

1 MASTER: By notice of motion filed 25 March 1996 the plaintiff seeks an order for an extension of the limitation period pursuant to ss 60G and I of the Limitation Act 1969 (NSW) (the Act). The plaintiff’s claim under Compensation to Relatives Act 1987 has been settled. The claim before this court is for nervous shock. The plaintiff relied on her affidavits sworn 13 June 2000 and 2 February 2001. The defendant relied on two affidavits of Con Ktenas affirmed 22 November 2000 and 8 February 2001 and the affidavit of Elena Ordiz sworn 6 February 2001.

2   I observed the plaintiff carefully when she gave evidence and during cross-examination. I formed the opinion that for most of her time in the witness box she gave evidence to the best of her ability. At times she became visibly upset and at other times she became angry. She overlooked giving details of one period of employment in her affidavit but I accept that it was an oversight as it had already been mentioned by her in answer to particulars. For the purposes of this application I have taken the plaintiff’s case at its highest and I find the following facts.

(1) The plaintiff was born on 17 October 1924 and is 77 years of age. She has borne 10 children. She had a difficult childhood.

(2) The plaintiff has had extensive psychiatric history which dates from 1961 onwards. As the plaintiff is the mother of 10 children, one of which is Dianne who suffered brain damage and another child was born with cerebral palsy, it can be expected that she would experience problems. Between 1961 and 1963, the plaintiff was convicted of shoplifting on four occasions.

(3) On 10 February 1964 HMAS Voyager was sunk when she collided with HMAS Melbourne on the high seas 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision including the plaintiff’s son Anthony.

(4) At the time of the collision the plaintiff had two sons serving in the Royal Australian Navy. Her son Frank Syaranamual was a member of the crew of the Melbourne at the time of the collision. Her youngest son Anthony was a crew member of the Voyager at the time of the collision. Anthony died in the collision.

(5) On 11 February 1964 the plaintiff was at home when a friend of the deceased came to her door. He walked into the house and stared at the plaintiff and said “didn’t you year? The Melbourne sunk the Voyager”. The plaintiff screamed and turned on the television to get the news. The name of her son Tony came up as one of the missing. The plaintiff was horror struck and overwhelmed with fear. She had feelings of mounting hysteria and panic.

(6) The plaintiff flew to Sydney. She went to where the Melbourne was tied up at the dock and tried to seek news as to the fate of her sons, particularly Tony. The plaintiff was extremely distressed. She recalled messengers coming down regularly but there was no news given out.

The plaintiff stayed overnight in Sydney. The next day she went back to where the Melbourne was tied up. She saw her son Frank who was distressed. The plaintiff went part way up the gangway of the Melbourne and informed an officer or a person in uniform that she was Tony and Frank’s mother. She was ordered off and told “we know all about it go down and we will bring your son”. She waited for hours but no-one came down. She went back to the hotel with her son Frank and she vividly recalls someone stating “Frank you are lucky to be alive” and she replied “his brother wasn’t so lucky”. She recalls that Frank was sedated and had to be carried off the Melbourne.


(7) The next day a telegram arrived stating that Tony was missing. The plaintiff was unable to accept that he was dead. She still thinks that he may walk into the house at any time and that he may have somehow swum ashore and suffered amnesia. She is haunted by the thoughts of the tragedy and the fact that Frank had talked his younger brother Tony into joining the Navy. She was proud of her two sons in the Navy. They had won scholarships. It was not until a few years ago while the plaintiff was watching television, that she saw an interview with one of the survivors from the Voyager who said “young Syaranamual was trapped under a row of fallen lockers and could not be pulled out in time” that she realised that Tony was not coming back.

(8) In about March 1964, one month after the collision the plaintiff’s daughter Diane was involved in a motor vehicle accident which left her brain damaged. The hospital notes (referred to in the next paragraph) refer to this tragedy.

(9) On 12 March 1964 the plaintiff’s family had her committed to Larundel psychiatric hospital where she remained as an in-patient for 4½ months. There are records available from this admission. In these records there is reference to the plaintiff being genuinely distressed after losing her son in the Voyager collision. There is also reference in these notes to what was then considered “the plaintiff’s quite specular history of shoplifting.” (Ex A). At Larundel she would not talk or co-operate with the hospital personnel so she was placed in a padded cell and attired in a straight jacket. She was told that she had a personality disorder. She was told and understood that the disorder was a normal reaction of a grieving mother. She at this time knew she had suffered a psychiatric injury and it related to the loss of her son. She admitted that she knew that she had suffered a mental injury (t 7.20).

(10) From 1961 until 2000 the plaintiff has continued to shoplift. To date she has about 70 convictions. The plaintiff shoplifts for no apparent reason. She does not attribute the cause of her shoplifting to her son Tony’s death. She would walk into a store, pick up an item in full view and then wait until she was taken into custody. One item, a bottling machine, required two security guards to return it to the shop.

(10) Shortly after her son’s death the plaintiff began to drink heavily. She stopped work and to some extent relied on her husband to support her. She was anxious, depressed and was suffering from nightmares. She had blackouts, was arguing with friends and she believed she was neglecting her children. She dreaded the arrival of the 10 February of every year. She was feeling guilty and felt the need to punish herself. Sometimes when the plaintiff is walking she gets the feeling that she does not know who she is. She seems to momentarily lose consciousness, and has had several falls because of this. She gets epigastric pain and feels tense in the stomach. She has made various attempts to take her life. She is unable to take baths or drink water by itself and tries to avoid anything that is related to water. She avoids people and is easily startled. She feels worthless and helpless. Her sleep is poor. She suffers headaches.

(11) There are medical records as far back as the plaintiff’s admission to hospital 4½ months after the collision and 4 July 1977, 28 May 1980 and 29 October 1992 to the effect that the plaintiff had psychotic depression and also a pathological mourning reaction in response to the death of her son. The plaintiff was described as being “extremely suicidal” and claiming to have unsuccessfully attempted suicide on a few occasions. The plaintiff had visions of her son, Tony, After her son’s death, she claimed she drank heavily but presently does not drink or smoke. She placed notices in the paper concerning her son’s death on the anniversary.

(12) In 1986 the plaintiff instructed solicitors Galbally and O’Bryan who wrote to the Royal Australia Navy (Ex 9) and stated that the plaintiff was plagued with anguish over the past 20 years and sought any information that the Navy possessed regarding the death of her son. They requested all diaries, notebooks, files, memoranda and reports and any such like material or documentation relating to the loss of the HMAS Voyager, in particular relating to Ordinary Seaman Anton Syaranamual born 30 March 1945 stemming from the date of commencement of his service to date.

(13) In late 1995 Mr James Taylor, solicitor, called upon the plaintiff in relation to legal matters concerning her son Frank and he informed the plaintiff that she should consider seeing a psychiatrist to see what, if any, psychiatric injuries she was suffering from. Mr Taylor arranged for the plaintiff to see Dr Wu.

(14) On 23 December 1995 the plaintiff saw Dr Wu. At the conclusion of the interview Dr Wu told the plaintiff she was suffering from a post traumatic stress disorder (PTSD) that was caused by the death of her son in the collision. It was not until Dr Wu explained to the plaintiff that she knew she was suffering from a PTSD or other psychiatric illness or disability as a consequence of her son’s death. The plaintiff is of the view she did not know the nature and extent of the condition from which she had been suffering and to some extent still does not.

(15) The statement of claim and notice of notice to extend time were both filed on 25 March 1996. It was not until the plaintiff read the statement of claim that she became aware of any negligent acts or omissions by the defendant, nor did she realise that those acts or omissions had caused her psychiatric damage.

(16) Professor A C McFarlane in his report dated 21 August 2000, opined that the plaintiff suffers firstly from a long standing major depressive disorder; secondly, a chronic bereavement reaction; and thirdly, PTSD. The diagnosis of chronic bereavement reaction is made on the basis that the plaintiff’s grief was prolonged and above and beyond the normal expected response to the death of her son. The plaintiff continues to have an ongoing preoccupation with her sense of loss. Her sense of distress about her son’s death is above and beyond those of a major depressive disorder.

The diagnosis of PTSD is because even though she did not directly view the collision and her physical integrity was not at any time in direct threat, she was an indirect victim of this disaster and experienced profound feelings of helplessness and horror on being informed of this event. Two of her sons were involved, with her second son Tony being killed. This was an extremely distressing event for the families involved and it is Dr McFarlane’s view that the plaintiff's experience of this stressor was sufficient to be a cause of post traumatic symptoms. The plaintiff continues to experience a range of intrusive phenomena in relation to the disaster.

The Law

3   Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such period as it determines”. The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order.

4   The relevant provisions of s 60I are as follows:

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

(a) the plaintiff:


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

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

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

5   Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 10 February 1970 (the expiration of the relevant limitation period) she was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or she ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to her) earlier than 27 May 1993.

6   The practical effect is to require the plaintiff to identify specifically what fact or facts she claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which she acquired knowledge thereof (being a date later than 27 May 1993); or to show that that fact was or those facts were still unknown to her on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b).

7   The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that she was unaware that she suffered some sort of psychiatric condition until 1996 when she saw Dr Wu. The plaintiff also submitted that she did not know of the connection between the personal injury and of the defendant’s act or omissions until she read the statement of claim in 1996. The defendant did not make any submissions in relation to the s 60I(a)(i) to (iii) thresholds.

(i) Whether the plaintiff has proved that “she did not know that a personal injury had been suffered ”

8   As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury which the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important.

9   In 1964 after the collision the plaintiff began to drink heavily, argue with friends and neglect her children. The plaintiff knew she experienced anxiety, depressions, nightmares, blackouts, phobias and avoidant behaviour. She knew that she was nervous and continued to shoplift.

10   Prior to the expiration of the limitation period the plaintiff knew that she suffered a psychiatric injury and it related to the loss of her son. However, she was told by a psychiatrist and she accepted that it was the normal reaction of a grieving mother. She admitted that knew that she had suffered a mental injury.

11   It is my view the plaintiff became aware that she suffered a psychiatric illness which amounted to a personal injury prior to the expiration of the limitation period. This knowledge was acquired by the plaintiff outside the time stipulated by s 60I(1)(b). The plaintiff’s claim under s 60I(1)(a)(i) fails.

(ii) Whether the plaintiff has proved that she was “unaware of the nature or extent of the personal injury suffered ”

12   The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness.

13   I have referred to the state of the plaintiff’s knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). In 1996 Dr Wu told the plaintiff was made aware that she suffered from Post Traumatic Stress Disorder (PTSD), a long standing major depressive order and a chronic bereavement reaction. The effects of these disorders have resulted in the plaintiff experiencing a sense of distress and grief at the loss of her son that far exceeds the normal expected response.

14   The plaintiff’s psychiatric condition became noticeably worse after the collision. The plaintiff as well as being overwhelmed with fear, horror and hysteria, in recent years entertained a belief that her son may still be alive. The plaintiff’s phobia of water is such that she is unable to bathe or drink water by itself. The plaintiff’s extremely low self-esteem led her to being easily startled and unwilling to engage in social interaction. It affected her sense of self-worth so dramatically she had periodic suicidal thoughts that sometimes culminate in suicidal actions. The plaintiff claims she was unaware of the extent of this damage. The plaintiff had much the same symptoms prior to the expiration of the limitation period as she did after the expiration of the limitation period. Prior to the expiration of the limitation period she was aware she had been diagnosed as suffering from a mental illness related to the loss of her son but did not know the specific diagnosis.

15   It is my view that even though the plaintiff did not know the specific diagnosis of her mental condition. She knew she had a psychiatric illness and the plaintiff knew of the nature and extent of her personal injury prior to 1990. This does fall within the period stipulated by s 60I(1)(b). The plaintiff has not passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was “unaware of the connection between personal injury and the defendant’s act or omission ”

16   Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions.

17   The plaintiff submitted that it was not until she read the statement of claim in 1996, and specifically the particulars of negligence, that she was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents.

18   The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, are to be found in the plaintiff’s particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995).

19   In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows:

(a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so;
(b) Failing to correctly carry out orders transmitted from Melbourne to Voyager;
(c) Failing to correctly receive orders transmitted from Melbourne to Voyager;
(d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne;
(e) Failing to correctly transmit as orders, signals received from Melbourne;
(f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne;
(g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne;
(h) Failing to alter the course or speed of Voyager in time to avoid a collision;
(i) Failing to maintain a constant and efficient watch;
(j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur;
(k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne;
(l) Failing to warn Melbourne that a collision was imminent;
(m) Failing to give right of way to Melbourne;

(n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition;

(o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe;
(p) Failing to maintain any or any adequate lookout.

20   Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia.

21   I accept that it was not until 1996 at the earliest, when the plaintiff read the statement of claim that she became aware of the connection between the personal injury and the defendant’s acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway.

22   Mr Jones, counsel for the defendant, submitted that Drayton had been overtaken by a recent decision of the Victorian Court of Appeal in Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230, I am bound by the NSWCA decision in Drayton.

23   Even if I am wrong, the plaintiffs efforts have been focused on finding out how her son died not how the collision occurred. As previously stated in 1986 a letter from the plaintiff’s solicitors Galbally and O’Bryan to the Royal Australia Navy (Ex 9) stated that the plaintiff was plagued with anguish over the past 20 years and sought any information that the Navy possessed regarding the death of her son. They requested all diaries, notebooks, files, memoranda and reports and any such like material or documentation relating to the loss of the HMAS Voyager, in particular relating to Ordinary Seaman Anton Syaranamual born 30 March 1945 stemming from the date of commencement of his service to date. The plaintiff said that she had never read the book “When Fate Calls”. I accept this evidence.

24   As the plaintiff has passed through the s 60I(1)(a)(iii) gateway I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable

25   The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. Recently the New South Wales Court of Appeal considered the effect of Taylor in Holt v Wynter [2000] 49 NSWLR 128.

26   Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 128; Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995).

27   The plaintiff’s son was employed by the defendant. It is arguable that the defendant as employer of the plaintiff’s son had a duty of care to the plaintiff. The foreseeability of the plaintiff’s damage will be in issue at the trial. The day after the accident the plaintiff attempted to board the Melbourne where her son’s body may have been on board. There is medical evidence to support the claim that the plaintiff has suffered an abnormal grief reaction and PTSD as a result of her son being killed in the Voyager collision. It is my view that the plaintiff has a real case to advance - see Jaensch v Coffey (1983-84) 155 CLR 549.

28   The principles concerning prejudice have recently been considered in Wynter (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 stated that the effect of the High Court decision in Taylor’s case 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. The applicant would not be able to demonstrate that it was fair and just that leave be granted if to do so would result in significant prejudice to the potential defendant. If there is an absence of significant prejudice to a potential defendant, there is no reason why the discretion should not be exercised in favour of the plaintiff.

29   The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 36 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see McLean.

30   The defendant submitted that they are actually and significantly prejudiced because of lack of medical and employment records including those of the defendant’s which related to her son. The plaintiff has not claimed economic loss but the defendant submitted that they would throw light on why she left her employment and ultimately her credibility.

31   There are few medical documents relating not only to the plaintiff’s employment history but also to the effects of her injuries on her ability to work. Furthermore, there seems to be conflicting reports on the plaintiff’s employment history. The document marked “MSI” in Ex A states that the plaintiff was unable to work for a prolonged period of time due to her psychiatric symptomatology, ie. her chronic personality disorder and the symptoms attached to this disorder. However, the claim that her personal injury rendered her unable to be gainfully employed is at odds with the following reports. Firstly, that the plaintiff’s employers at Presslight valued her greatly as an employee due to her work ethic and diligence and that the plaintiff herself stated, in a letter that at the time she left employment in order to better care for her daughter Dianne. During cross examination the plaintiff denied this was the case and later stated that she could not recall if this was the case. Secondly, her work at the East Preston Community Health Centre was greatly appreciated by her supervisors as was her volunteer work for Meals on Wheels in 1986. However, in October 2000 the Repatriation General Hospital Heidelberg refused to allow her to continue her volunteer work as she was unreliable.

32   The plaintiff was in paid employment for a few years. The commercial manager of Victoria Markets indicated that there is little to no chance of obtaining employment records as the actual employer would have to be identified. The plaintiff’s employer at Wilmot Breedon stated that all files older than 20 years were destroyed as a matter of policy and as such they could not confirm the plaintiff was an employee before 1970. There is no documentary evidence to confirm her period of employment at Venice Footwear. Such a company no longer exists. The former appointed liquidator has no recollection of neither the company or any records relating to that company as records are destroyed after five years if the company has been the subject of a court winding up order. The details of the plaintiff’s volunteer work at Austin Hospital Kiosk and Rehabilitation General hospital began in 1988 are available. Her services were declined beyond October 2000 as she was found to be unreliable. There is reference to this in the medical reports. The plaintiff’s work history has only a minor role to play in the hearing of her claim and there is some documentation relating to her employment.

33   Of more importance are the medical records both as to the plaintiff’s psychiatric state prior to the collision and after the collision, particularly in relation to the plaintiff’s penchant for shoplifting. There are voluminous bundles of medical and hospital notes (532 and 545). There are medical records relating to the 1961/62 shoplifting offences and probation and parole reports (see Ex 3). There are vital medical records relating to the plaintiff’s committal to Larundel for the 4½ month period shortly after the collision occurred. Other relevant documents contained in the medical records relating to the plaintiff prior to the collision are the clinical notes of the Observatory clinic, the Domain, South Yarra from 18 September 1962 to 20 April 1962, a report of the psychiatrist superintendent dated 11 September 1962 and a detailed probation and parole report dated 23 April 1963 (Ex 3). There are an abundant number of medical and clinical notes relating to the plaintiff’s psychiatric condition after the collision. They are the nursing notes of Larundel from 12 March 1964 to 2 June 1964 and 2 April 1971 to 15 July 1975; psychiatric reports of Preston clinic from 9 February 1965 to 7 May 1965; notes of Ernest Jones clinic where the plaintiff was admitted on 9 October 1967 with an “antisocial personality”; notes of Alexandra Parade clinical, Fitzroy from 21 September 1970 to 2 November 1970 and 30 June 1975; a letter from the plaintiff to Dr Reynolds dated 14 July 1975 expressing her desire to work at the milk bar and to be kept occupied despite being mentally unbalanced; the psychiatric records of Mont Park from 19 May 1976 to 2 July 1976 which stated that the plaintiff’s “personality problems are many and will probably stay with her; medical reports from Parkville Psychiatric unit in 1978; case notes and reports of Department of Veteran Affairs for 1982; out patients notes of Heidelberg psychiatric from mid 1990 to 1996; geriatric unit consultation notes for 1997; correspondence from Dr Bailey psychiatrist requesting any/all clinical information regarding the plaintiff’s other problems; there are psychiatric records, clinical notes, medical records (breathing, urine, radiology, CT, surgery/anaesthetic) etc of Austin Repatriation hospital, Heidelberg from 23 June 1976 to date and Austin sleep study report, radiology and orthopaedic reports for 1997.

34   It is my view that there are detailed medical reports from 1961 onwards that detail the plaintiff’s psychiatric condition. Details of the plaintiff’s employment history are available but more importantly no claim for economic loss has made by the plaintiff. There is an abundance of source material upon which the defendant can cross examination the plaintiff to establish her credibility (or lack thereof) at trial.

35   After I have taken into account all of these matters, I am satisfied that the defendant will not suffer significant prejudice. It is my view that the plaintiff has discharged her onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause.

36   The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 25 March 1996.

(2) Costs are costs in the cause.
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Last Modified: 03/27/2001