Sykes v The Commonwealth of Australia
[2000] NSWSC 3
•3 February 2000
CITATION: Sykes v The Commonwealth of Australia [2000] NSWSC 3 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20783/97 HEARING DATE(S): 23 November 1999 JUDGMENT DATE: 3 February 2000 PARTIES :
Commonwealth of Australia
John Joseph Sykes
(Plaintiff)
(Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr M L Brabazon
Mr T J Marahan
(Plaintiff)
(Defendant)SOLICITORS: James Taylor & Co
Mr Con Ktenas
Myrtleford Victoria
(Plaintiff)
Australian Government SolicitorCATCHWORDS: Extension of time to commence proceedings - Sections 60G and 60I Limitation Act - Voyager/Melbourne collision LEGISLATION CITED: Limitation Act 1969 (NSW) CASES CITED: The Commonwealth of Australia v Mewett (1997) 191 CLR 471
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997)
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)
The Commonwealth of Australia v McLean (1996-97) 41 NSWLR 389
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 (NSWCA, unreported 26 February 1998); 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)DECISION: See para 32
21
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
THURSDAY, 3 FEBRUARY 2000
20783/97 - JOHN JOSEPH SYKES v
JUDGMENT (Extension of time to commence proceedings,
THE COMMONWEALTH OF AUSTRALIA
Ss 60G and 60I Limitation Act -
Voyager/Melbourne collision)
2 For the purposes of this application I find the following facts. In doing so I observed the plaintiff both giving evidence and being cross examined and formed the view that overall the plaintiff was a truthful witness. However there was discrepancies in the plaintiff’s evidence. He was mistaken as to the reason he applied to the Navy for a discharge. However, this mistake did not lead to me form the view that his evidence was not truthful.
1 MASTER: The plaintiff by notice of motion filed 14 August 1997 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 18 April 1999. The defendant relied on the affidavit of Con Ktenas affirmed 22 November 1999. Both deponents were cross examined. The defendant opposes the orders sought.
(1) The plaintiff was born on 2 August 1944 and is now 55 years of age.(2) On 7 April 1962 the plaintiff enlisted in the Royal Australian Navy as a recruit. He enlisted for a period of nine years. He was 17 years of age. It was his intention to serve 30 years. He was happy and looking forward to a fulfilling satisfying career. He was in good health both physically and psychologically.
(3) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision.
(4) The plaintiff was a crew member of the aircraft carrier HMAS Melbourne (the Melbourne) as a flight deck handler. At the time of the collision the plaintiff was off duty and was watching a movie in the for’ard cafeteria. He was lying on a long stool about 10 feet back from the screen when he felt a huge jolt which threw him from the stool. Other people were thrown off balance by the jolt and were scrambling to their feet when a sailor ran past and said “we have run onto the rocks”. The plaintiff feared for his life as he thought they were sinking. Another sailor ran past and said “we’ve hit a submarine”. In panic the plaintiff ran for the ladder leading to the starboard paravane space to get out into the open. When he reached the starboard paravane space there was smoke everywhere and he could hear the loud screeching and scraping of metal on metal. He saw the super structure of the Voyager going down on the starboard side of the Melbourne. He stood in shock and horror and observed that everyone else was in a state of panic and no-one seemed to know what to do as the scraping of the metal continued. He mind went blank and the next recollection he had was of standing on the quarterdeck. He feared for the life of his friend from Leeton and the other men on the Voyager, some of whom he played football with and socialised with after games. He realised that some of them must have been killed. He felt as if he was fighting for his own life and he thought that the Melbourne was also sinking.
(5) He was ordered to attempt to put a tow rope on the stern of the Voyager with a view to towing her back to Sydney. He was petrified and he recalls the aft section of the Voyager going down beneath the waves just before he was about to set off with the tow line. He still has flashbacks of seeing the aft section of the Voyager going down on the starboard side and the stern section floating a few hundred yards away. He recalled a steel door on the stern section banging and then going silent just before she sank beneath the waves. He had nightmares and still has nightmares of the stern section of the Voyager sinking and taking the Melbourne down with it. The plaintiff recalled standing on the quarterdeck and seeing survivors being brought over the side of the Melbourne covered in black oil and spewing oil everywhere. He was ordered to the for’ard section of the flight deck and recalls lying on his stomach with another sailor operating a search light looking for survivors. He still suffers from flashbacks of operating the light on the water. He was required to operate the flashlight until about 4 o’clock in the morning.
(6) After the Melbourne reached Sydney the plaintiff went home to his mother and he broke down and cried about how many dead there were. After the collision he knew that he was unhappy and did not want to be in the Navy. The plaintiff said that a few weeks after the collision he realised that someone had “stuffed up” and that there had to be some negligence on behalf of somebody in the Navy. When he went back he had no initiative and felt like a robot. He was fearful of ever going back to sea but was unable to say anything to anyone as he thought he would be branded a coward. He clammed up and tried to get on with his job. After the collision itself he did not trust the officers. However he did not know that he had a medical problem. He knew that inside he was an unhappy person but did not know that the unhappiness was related to the collision and that the collision was the cause of his unhappiness. However by 1970 he knew that the unhappiness stemmed from the collision. He was aware that no-one else had blamed the accident for causing them any problems and that he had to deal with his problems as a man, that is to deal with them the best way that he could.
(7) When the plaintiff went back to sea with the Melbourne he was overcautious, constantly looking to see how close ships were to the Melbourne. He had flashbacks, his sleeping was fitful and he was having nightmares. The plaintiff became argumentative and cranky and was reluctant to follow orders because he did not trust officers any more. At night he became even more frightened and hypervigilant and on edge. Prior to the collision he had had the occasional drink. After the collision his consumption of alcohol increased substantially. Prior to the collision he smoked about two cigarettes a day and immediately after the collision his smoking increased to about one and a half to two packets per day. He drank and smoked to calm his nerves and to help him get to sleep. He began drinking at lunch time to settle his nerves. However, he did not realise that these symptoms meant that he had psychological problems. He was aware that he was happy prior to the collision and unhappy after the collision had occurred.
(8) On 7 April 1971 the plaintiff was discharged from the Navy. He had attained the rank of able seaman.
(9) The plaintiff commenced employment as a storeman with Comalco which lasted for six months. From 1972 until 1989 the plaintiff was employed with Caltex as a refueller at the airport. The plaintiff said that his career at Caltex suffered because of his personality problems and that he was overlooked for promotions due to his temper. He had been chipped by his superiors in relation to his temper. From 1989 until 1995 the plaintiff was employed as a union official with the Transport Workers Union. From 1996 to date the plaintiff had been employed as a depot supervisor with Cleanaway. Cleanaway and Cleanaway Municipal are run as two separate business. He seems to be happy with his job at Cleanaway and will continue with that employment.
(10) The plaintiff gave evidence if he did not have problems caused by the collision he is confident he would have been a petty officer at the end of his nine year period of service and would have continued on in the service. He said had he not suffered the psychological problems due to the collision he most definitely would have been promoted to leading hand which earned about $5,000 more per annum and then he may have been further promoted.
(11) In July 1996 a friend saw an advertisement in the newspaper. He told the plaintiff that he ( the plaintiff ) had to do something about his nervy condition. The plaintiff contacted Mr Taylor his current solicitor. Mr Taylor advised the plaintiff that it would be necessary for him to see a psychiatrist but everything was on hold until the outcome of “ Mewett’s ” case in the High Court was known. ( The Commonwealth of Australia v Mewett (1997) 191 CLR 471).
(12) In 1997 the plaintiff made an application for a war service pension. He saw Mr Les Block who told him how to complete the form. Mr Block asked the plaintiff if he had any dreams about Vietnam and the plaintiff replied “yes” and Mr Block told him that he had “PTSD”. Mr Block referred only to the initials “PTSD”. The plaintiff did not know what it was but because Mr Block knew “everything about everything in relation to war pensions” he put himself in Mr Block’s hands. The only thing that the plaintiff understood by the initials “PTSD” was that that he suffered some stress from the time of his service in Vietnam.
He referred to three disabilities in the form. Firstly, there were chests problems caused from excessive smoking in South Vietnam and on board ships; secondly, hearing loss from exposure to small arms and artillery; and thirdly, “PTSD” and alcohol and the disabilities were anxiety and nerves about being mined in the Mekong River. In relation to the alcohol questionnaire he answered that he drank alcohol in the Navy in 1962. In relation to whether his habits had changed during service he answered “yes”. When asked when the increase occurred he replied, that once he joined the ships and in South Vietnam. The plaintiff gave evidence that it was only after the collision that he started to get drunk but he did not put this in the form as the claim could only relate to his time in a war zone.
The plaintiff said that even though he was aware of the initials “PTSD” he thought that this related to stress and anxiety but he did not know that it was a disorder. He did not know that he had a disability. All that he knew was his life was not the same. During his time in the Navy he had some other life threatening incidents. One was when he nearly jumped on a sea snake, and the other when he got caught in some kind of rope and a fellow sailor who is now a captain, lost part of his one of his fingers. The plaintiff saw a psychiatrist in relation to his war pension application but he did not tell the psychiatrist about the collision as he did not like the psychiatrist and the psychiatrist did not give him any explanation as to what “PTSD” meant. He did not see a report from that examination.
(13) In 1996/1997 the plaintiff read a book written by Lieutenant Frame concerning the Voyager/Melbourne collision. This gave him some understanding of how the accident occurred.(14) On 3 February 1998 the plaintiff consulted Dr Knox a psychiatrist. During that interview Dr Knox informed the plaintiff that he was suffering from a psychiatric illness and in particular the disorder of post traumatic stress disorder (PTSD) and this disorder was caused by the collision. After the consultation with Dr Knox the plaintiff has some understanding of the terrible effects that the collision had had on him and of what the condition PTSD actually meant. Dr Knox said that he believed that the plaintiff suffered from a moderated intensive PTSD as a result of the events that he experienced aboard the Melbourne on the evening of 10 February 1964, aggravated by subsequent events in his Navy career. Dr Knox said that the plaintiff’s symptoms had been present over many years leading him to fail to make progress in the Navy and subsequently to have difficulty in relationships during the course of his work and social activities. Dr Knox said that the plaintiff’s symptoms are well entrenched in his behavioural patterns now, and it was unlikely that the plaintiff would be able to modify them and that he might be able to benefit from counselling treatment for his condition. Dr Knox said that he would expect the plaintiff’s symptoms to remain at their present moderately severe level indefinitely.
(15) Sometime between August 1997 and 18 April 1999 the plaintiff read the statement of claim. Until he read the statement of claim he had no knowledge of any acts of negligence by the defendant nor that these acts of negligence had caused him psychiatric damage.
(16) On 14 August 1997 the statement of claim and notice of motion seeking an extension of the limitation period were filed.
The Law
3 The plaintiff relied s 60G and s 60I of the Limitation Act 1969. The parties agree that this is the applicable law. The approach to be adopted in dealing with applications for the extension of limitation periods, is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997). The onus rests with the applicant.
4 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”.
5 The relevant provisions of s 60I are as follows:6 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:
“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(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,
(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).”
(1) As at 10 February 1970 (the expiration of the relevant limitation period) he 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 he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 14 August 1994.
7 The practical effect is to require the plaintiff to identify specifically what fact or facts he 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 he acquired knowledge thereof (being a date later than 14 August 1994); or to show that that fact was or those facts were still unknown to him 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).
8 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD. The plaintiff also submitted that he did not know of the connection between the personal injury and the defendant’s acts or omissions until 1997. The defendant submitted that the plaintiff did not pass through any of the s 60I(1)(i)-(iii) gateways.9 It was on 3 February 1998 that the plaintiff was told by a psychiatrist Dr Knox that he suffered from PTSD caused by the collision. Dr Knox also explained what this illness entailed so that the plaintiff understood what it was. In 1997, when the plaintiff was examined by a psychiatrist for the war pension, he knew that he had a condition with the initials PTSD and thought that it had something to do with stress and anxiety and his Vietnam service. In any event the knowledge the plaintiff gained in 1997 falls within the time period stipulated by s 60I(1)(i)(b). 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 that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. I accept that the plaintiff was not aware until 1997 at the earliest that he suffered a personal injury. The plaintiff has passed through the s 60I(1)(a)(i) gateway.
(i) Whether the plaintiff has proved that “he did not know that a personal injury had been suffered ”
(ii) Whether the plaintiff has proved that he was “unaware of the nature or extent of the personal injury suffered ”
10 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 disease of gradual onset and not one of psychiatric illness.
11 I have referred to the state of the plaintiff’s knowledge prior to the limitation period under the heading s 60I (1)(a)(i). For the reasons given under s 60I(1)(a)(i) it is my view that the plaintiff did not know the nature or extent of his personal injury until he knew that he had a diagnosable psychiatric illness in 1997 at the earliest. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has 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 ”
12 The defendant submitted that because the plaintiff knew shortly after the accident that there had been a “stuff up” and someone in the Navy had been negligent he was aware of the connection between personal injury and the defendant’s acts or omissions. Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions.
13 The plaintiff submitted that it was not until he read the statement of claim between 1997 and April 1999, specifically the particulars of negligence, that he 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.
14 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, will be found in the plaintiff’s particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995).
15 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.
16 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.
17 The plaintiff gave evidence that within a year he knew that someone in the Navy had “stuffed up”. He found out the truth of what had happened when he read a book by Lieutenant Frame in 1996 or 1997. However, the general knowledge of a “stuff up” by the Navy does not equate to the particulars of the statement of claim as set out in paragraphs 5 (a) to (p).
18 I accept that it was not until sometime between August 1997 and April 1999 when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant’s acts or omissions. Even if it can be said that he acquired this knowledge when he read Lieutenant Frame’s book this falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway.
19 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.
Just and reasonable
20 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. 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 Giudice and in The Commonwealth of Australia v McLean (1996-97) 41 NSWLR 389.
21 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 his 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 (NSWCA, unreported 26 February 1998); 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).
22 The defendant submitted that even if the plaintiff had a real cause of action to advance it is so trivial that it would not be just and reasonable to extend the limitation period. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff’s damage will be in issue at the trial. It is the plaintiff’s contention that as a result of his experience of being on board the Melbourne when it was hit by the Voyager he suffered PTSD. The plaintiff alleges that he suffered a loss of earning capacity in that he would have been promoted in the Navy and has lost promotions in his working career due to changes in his personality caused by the collision.
23 I turn now to the effects of delay and what was said in Taylor. In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E.
24 Mason P analysed the views of the Judges of the High Court in Taylor’s case. The President quoted the passage by McHugh J which begins “Legislatures enact” and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson and McHugh JJ appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour.
25 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.
“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
26 Mason P perceived that there may be a distinction between the notion of “significant prejudice” and the notion that delay makes “the chances of a fair trial unlikely”. In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendant would suffer “significant prejudice”.
27 The defendant has admitted the collision but denied it was negligent. I accept that with the passing of almost 36 years, there is the real possibility 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.
28 The defendant submitted that they were actually prejudiced because they cannot properly investigate the plaintiff’s working history since he left the Navy and that Dr John McGeorge a psychiatrist has died. Dr McGeorge was a Naval psychiatrist with primary oversight and responsibility in the 1960’s for the psychiatric care of survivors in the Melbourne/Voyager collision. There is no evidence that Dr McGeorge actually interviewed the plaintiff, nor that the plaintiff had come to Dr McGeorge’s attention. The files in relation to the plaintiff’s employment throughout his time in the Navy still exist.
29 The day before the hearing of this matter the defendant’s solicitor Mr Ktenas contacted Comalco, Caltex, Transport Workers Union and Cleanaway. He was notified by the payroll section of Comalco Parramatta that it was too long ago and that their records would have been destroyed after seven years but that needed to be confirmed. The plaintiff was only employed by Comalco for a period of six months. Whether those records still exist is of minor significance. In relation to Caltex the defendant’s solicitor spoke to the human resources section of the company and later the payroll section A resources manager informed the defendant’s solicitor that there were no records as it was routine policy for the company to destroy documents after seven years. These records are of some significance as the plaintiff was employed by Caltex from 1972 to 1989. The plaintiff has alleged that he was passed over for promotion because of his personality and if he had been promoted he would have earned $5,000 extra per year. It may be that after more extensive search of the records is conducted by Caltex, some records may still be in existence. However I accept that the Caltex employment records may not be able to be located. There may be employees or supervisors that worked with the plaintiff who can give evidence. The evidence of these employees may fill the gaps if these records are not available. It would appear the defendant’s solicitor spoke to the incorrect office of Cleanaway and that the plaintiff’s employment records from Cleanaway from 1996 to date will be available. It appears that no enquires were made of the Transport Workers Union.
30 Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. There are Navy records showing that at the time the plaintiff joined the Navy he was in good physical and psychological health. The events surrounding the collision are well known and there is documentary evidence available - see McLean. The plaintiff’s service and medical records throughout his service in the Navy are available. There are current medical records available but some prior employment records from Caltex may not be available. In 1997 the plaintiff was examined by a psychiatrist in the employment of the Department of Veterans Affairs.
31 After I have taken into account all of these matters, the exercise of discretion is finely balanced. After much reflection I am not satisfied that the “chances of the defendant obtaining a fair trial is unlikely” nor am I satisfied that the defendant will suffer “significant prejudice”. The plaintiff has discharged his onus and satisfied me that it is just and reasonable for an order to be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause.
32 The orders I make are:
(2) Costs are costs in the cause.
(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 14 August 1997.**********
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