Trudgett v Commonwealth of Australia

[2006] NSWSC 575

CITATION:	Trudgett v Commonwealth of Australia [2006] NSWSC 575 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/6/06, 14/6/06
JUDGMENT DATE :	6 July 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Pursuant to s 60G(2) of the Limitation Act 1969 the limitation period for the cause of action in this proceeding be extended to the date on which the statement of claim was filed.
CATCHWORDS:	Application for extension of the limitation period - psychiatric injury arising out of the Melbourne/Voyager collision
LEGISLATION CITED:	Limitation Act 1969 Limitation Act 1623 (Imp)
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Smith [20005] NSWCA 478 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 McClean v Sydney Water Corp [2001] NSWCA 122 R v Whitbread (1995) 78 A Crim R 452
PARTIES:	Edward Clive Trudgett (Applicant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	SC 20093/02
COUNSEL:	G Jauncey (Applicant) P Jones (Respondent)
SOLICITORS:	Hollows Solicitors (Applicant) Blake Dawson Waldron (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 6 July 2006

20093/02 Edward Clive Trudgett v Commonwealth of Australia

JUDGMENT

1 BELL J: This is an application brought pursuant to s 60G of the Limitation Act 1969 that the limitation period for the applicant’s cause of action pleaded in his statement of claim filed on 19 March 2002 be extended for such period as the Court determines. The notice of motion was filed on the same day as the statement of claim.

2 The applicant was a naval rating on the board HMAS Melbourne on 10 February 1964, when it collided with HMAS Voyager. As the result of his experience of the collision the applicant claims to have suffered psychiatric injury. The applicant’s cause of action is in negligence.

3 The applicant was born on 3 May 1943. The limitation period for his cause of action expired on 11 February 1970.

4 The applicant pleads the following particulars of injury:

(a) Severe shock;

(b) severe anxiety and depression;

(c) panic attacks;
(d) difficulties with sleeping;
(e) irritability, fatigue and headaches;
(f) night sweats;
(g) difficulty in concentrating, making decisions and solving problems;
(h) mood swings, frustration and isolation’
(i) post-traumatic stress disorder symptoms;
(j) emotional detachment, insecurity and lack of confidence;
(k) attempts to medicate himself by heavy use of alcohol with consequential impairment of body function;
(l) hypertension;
(m) cigarette addiction to 1992 with consequential impairment of body function;
(n) generalised anxiety disorder;
(o) adjustment disorder.

5 The applicant claims damages for economic loss contending that his injury has impaired his capacity to earn income. He also pleads that had the collision not occurred he would have been likely to rise to the rank of a commissioned officer and retired at or about the age of fifty-five years, having qualified for a Defence Force Retirement Benefit pension and other entitlements.

6 Section 60G(2) of the Limitation 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.

7 The applicant bears the onus of demonstrating that it is just and reasonable for the Court to grant the extension that is sought.

8 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) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii).

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

10 The applicant was aged 20 at the date of the collision. He was born on 3 May 1943. In an affidavit sworn on 19 November 2004 (the first affidavit) the applicant describes an unremarkable upbringing as the eldest of four children. His parents were happily married. As far as he is aware he did not suffer from any psychological problems during his childhood and youth.

11 The applicant left school at the age of 15 years. He describes himself as having been an average student, who was good at maths. His first employment was as an office assistant with the Gold Coast City Council, which was then known as the Southport City Council. He remained in this employ for about two years. In January 1961 he commenced working for Queensland Railways. His position was described as that of trainee engineman.

12 The applicant says had an interest in joining the Navy from when he was aged around 15 years. He joined the Navy on 20 October 1961. He says that it was his intention to make the Navy his lifetime career.

13 The applicant completed his recruit training at HMAS Cerberus. He was posted to HMAS Watson, where he did a radar plotter’s course. On 9 April 1962 he became a Radar Plotter 3. He then did his sea training and he was posted to the crew of HMAS Melbourne on 28 December 1962. He says that prior to the collision he enjoyed his time in the Navy. He had only been disciplined on one occasion before the collision. This was for an incident in which he returned late to his ship.

14 At the time of the collision the applicant was off duty in his mess, Five Delta Starboard Mess. He heard a loud explosion and felt a big jolt. A voice came over the loudspeaker system but the applicant could not understand what was being said. He heard somebody say to go to emergency stations. There was some panic getting up the ladder. He went to Number 3 Starboard Side and from this position was able to see the stern half of HMAS Voyager. He then went to the portside, where he saw the bow section of Voyager, which was almost completely under the water. He recalls this as being “an horrendous sight”. There was an awful amount of noise, smoke and steam. He saw the front half of the Voyager sink very shortly after the collision. He describes people struggling to stay afloat in the water and screaming for help.

15 The applicant states that he remained and the port forward boat space on Number 3 Deck for about three hours, assisting in the rescue operations. Ropes were used to pull survivors up and those who were able to do so climbed up scrambling nets. He recalls that one of the survivors appeared to have broken arms and legs. He helped to take this injured survivor to the sick bay.

16 The applicant says that later that evening he assisting in hoisting up a rescue boat with some survivors still in it. After this he stood watching the stern section of the Voyager sink. He remembers thinking at the time that there must have been people still aboard that section of the ship.

17 In his first affidavit the applicant stated that he had been told that one of the persons whom he helped to rescue had died later in the night, but that he does not know if that is true. In cross-examination it was suggested to him that no survivor from the Voyager had died on board the Melbourne and he acknowledged that may the case.

18 The applicant was aware that the Melbourne had been severely damaged and he has a vague recollection of being told that night of a gaping hole in the front of the ship.

19 In his first affidavit the applicant says that he remembers feeling very depressed in the first few months after the accident and that he was having trouble sleeping. He started to have bad dreams about the collision in which he heard the sound of water rushing and he saw the Melbourne slowly sinking. In some dreams he was below decks on the Melbourne, or another warship, which was sinking and he was unable to find his way to the upper deck. At the date of swearing his first affidavit the applicant said he was still experiencing these dreams “on most nights” (paragraph [24]).

20 The applicant states that he was a moderate drinker prior to the collision. He smoked about 15 cigarettes per day. Following the collision he commenced to drink to excess and to smoke more heavily. He says that smoking helped to calm his nerves. His increased drinking was to such a degree that he had alcohol withdrawal symptoms when at sea. The applicant states that throughout the period following his discharge from the Navy he continued to drink heavily; around ten schooners of full strength beer each day. He says that he had difficulty in concentrating at times and that he would become quite anxious and irritable, particularly when in crowds.

21 The applicant states that with the benefit of hindsight he appreciates he was having psychological problems, but that he did not realise it at the time and he did not consult a doctor about his difficulties.

22 After the collision the applicant says that his attitude to naval service changed: he did not enjoy it anymore and he feared that another collision could happen at any time. He was at sea on board HMAS Stuart when a message was received that the Melbourne had collided with the USS Frank E Evans. The Stuart was despatched to the accident scene to look for survivors. They spent two to three days on this duty, but found no survivors. This episode upset the applicant and added to his feelings of unease and nervousness.

23 In December 1968 the applicant was promoted to the rank of Leading Seaman. He says that he had been pushed to attain promotion by his superiors, but that he lacked the interest to continue with a naval career. Just before he was due to “pay off” his divisional officer, Lieutenant Libberson, asked him to sign on for another three years and do the Petty Officer Radar Plot Course. The applicant had lost interest in making a career in the Navy and he declined to do so. He left the Navy in October 1970.

24 The applicant set out details of his employment in the years following his discharge in his first affidavit. He has had many jobs. Predominantly he has worked as a cleaner. He has also worked as a car salesman and as a stock controller with car sales firms. He has produced copies of his taxation returns for the financial years ending 30 June 1994 to 30 June 2001. He retired in 2005. He has also produced notices of assessment from the Australian Tax Office for the financial years ending 30 June 1994 to 30 June 2003.

25 The applicant married his first wife, Derris, in December 1967. They divorced in May 1988. There was one son of the marriage, Norman, who was born in October 1970. The applicant says that the marriage came to an end because his wife could not put up with his drinking, mood swings, loss of libido and nightmares.

26 The applicant married his second wife, Librada, in December 1988. They had a son, Anthony, who was born in 1993 and twin daughters, Lisa and Kylie, who were born in March 1998. The marriage came to an end in August 2002. The applicant puts the breakdown of this marriage to his ongoing alcohol problems, irritability and moodiness.

27 The applicant married his third wife, Liu Qiong, in November 2002. They have been living apart since June 2003. In his affidavit the applicant said that this marriage failed for the same reasons as his two previous marriages. In oral evidence he said he had met Liu Qiong on the Internet and that he had lived with her in China for a time. He had found life there boring and he continued to drink to excess. Liu Qiong had gone out with other men and on occasions she had been away from home for days. The applicant returned to Australia.

28 At the date of swearing his first affidavit the applicant said he was continuing to drink excessively, although a little less than previously. He described a number of symptoms, including difficulty in remember things, a phenomenon he had noted in the last few years, great difficulty in solving problems and in making decisions, difficulty concentrating, excessive tiredness, panic attacks, particularly when in crowds and enclosed spaces and ongoing sleep difficulties.

29 In 2001 the applicant’s son, Norman, contacted him and told him that he had met a former member of the crew of the Melbourne named Errol Lymbery. Mr Lymbery had brought proceedings and advised Norman to tell his father to do something about it if he had problems arising from the collision. Sometime after this discussion the applicant contacted David Forster of Hollows Lawyers. Mr Forster advised him to see a psychologist and/or a psychiatrist and made an appointment for him to see Associate Professor Justin Kenardy, a psychologist.

30 An affidavit of Justin Kenardy, a consultant clinical psychologist, sworn on 5 June 2006 was read in the applicant’s case. Professor Kenardy is the Professor of Clinical Psychology at the University of Queensland. He interviewed and assessed the applicant on 22 February and 7 March 2002. Annexed to his affidavit is a report, which appears to have been forwarded to the applicant’s solicitors on 3 February 2005.

31 Professor Kenardy conducted a structured clinical interview with the applicant and states that the applicant meets the criteria for post traumatic stress disorder (PTSD) with the index event being the Voyager disaster. Professor Kenardy states that the applicant also meets the diagnostic criteria for current alcohol dependence and current alcohol abuse. He says that the applicant meets the criteria for specific phobia (situation type) for enclosed spaces and that this condition, on the applicant’s account, is of more recent onset, some four years prior to the date of his consultation.

32 At the date of swearing the first affidavit the applicant had not seen Professor Kenardy’s report. He had not been told the result of Professor Kenardy’s assessment of him. The applicant stated in his first affidavit:

No doctor or psychologist had told me prior to this day that I have psychological problems related to the accident. I have always believed that my problems were part of a normal reaction to the collision. Although I have drunk much more than I should have, I have never thought this was part of an illness. I never discussed the collision with anybody as I was told not to and in any event it would make me feel quite upset (paragraph [50]).

33 The first occasion on which the applicant says he became aware that he had been diagnosed with a psychiatric condition was when he saw Dr Wong, a psychiatrist to whom he was referred by his treating doctor, Dr Burns. This referral was in August 2005. Since that time the applicant has been seeing Dr Wong every four to six weeks. It is the applicant’s case that he suffers from PTSD as the result of his experience of the collision. His counsel foreshadowed an amendment to the pleading of particular of injury (i) to reflect this claim.

34 I turn to a consideration of the threshold requirements that the applicant must satisfy under s 60I(1) before consideration may be given to granting him the relief that he seeks under s 60G.

35 In the respondent’s submission the applicant had failed to establish that he did not know that personal injury had been suffered. Counsel for the respondent pointed to the applicant’s evidence in cross-examination:

Q. Can I suggest this to you, that after the collision and what you have told us, you noticed a difference in your behaviour?
A. Yes.
Q. And from what you have told us, it was a significant difference?
A. Yes.
Q. And in your mind, given the nightmares that you have told us about, you would have related that to the collision, is that right?
A. Not really.
Q. If you were having nightmares which included nightmares about the collision, as night follows day, wouldn’t you in your own mind have said to yourself that it must have been related to the collision?
A. I thought it could have been.
Q. And if you are saying to the Court that your alcohol consumption was of a limited consumption before the collision and dramatically increased after the collision …
A. Yes.
Q. … in your mind there would have been only one intervening significant event, would there not, namely the collision?
A. Yes.
Q. And why were you drinking so much?
A. It was to calm myself down and make me feel better and it helped me to go to sleep.
Q. When you say calm yourself down, what did you want to calm down in yourself?
A. I was very nervous at sea.
Q. As I understand it, what you say to the Court is that you weren’t nervous before the collision and were nervous after the collision, is that right?
A. Yes.
Q. So once again, wouldn’t it have been clear in your thinking at that time that those matters that you’ve told the Court about such as the nightmares, the nervousness at sea and the alcohol were related to the collision?
A. Yes.
Q. As I understand it, you are suggesting or saying to the Court that this produced in you, these effects produced a significant impairment, is that right?
A. Yes (T 18-19).

36 In counsel for the respondent’s submission, the applicant’s acknowledgment that his increased alcohol consumption, nervousness and nightmares all came about after the collision amounted to knowledge of impairment of his mental condition. The applicant also acknowledged his understanding that the collision was the result of carelessness on someone’s part. In these circumstances it was contended that the Court would not be satisfied that the applicant had established any of the three matters in s 60I(1)(i) to (iii). I was not persuaded that was so. The applicant’s claim is for psychiatric injury. His awareness that features of his conduct, disposition and sleeping pattern changed following the collision seemed to me to fall well short of an acknowledgment that he understood he was suffering from a recognisable psychiatric condition. As I have noted, in his affidavit he said that he considered his problems to be part of a normal reaction to the collision.

37 Professor Kenardy was asked to express an opinion about when the applicant first became aware that he had suffered “psychiatric injury” (Hollows letter of instructions, annexure “B” to Professor Kenardy’s affidavit). In response to this query Professor Kenardy expressed the opinion that the applicant “became aware he had a problem that was linked to the Voyager disaster after his son met another Melbourne survivor” in a supplementary report dated 7 February 2005.

38 At the date of filing his statement of claim the applicant had not been told of a diagnosis that he was suffering from PTSD or any other recognised psychiatric condition. However, it appears that he had come to learn of the existence of PTSD and to know the symptoms of that condition by the time his solicitor arranged for him to see Professor Kenardy.

39 I am satisfied that at the date of the expiration of the limitation period the applicant did not know that he had suffered personal injury, in that he did not know he was suffering from a recognised psychiatric illness: Commonwealth of Australia v Smith [20005] NSWCA 478 per Handley JA at [7]; Santow JA at [104]; Basten JA at [181].

40 In the respondent’s submission the applicant ought to have become aware of all three matters s 60(1)(a)(i) – (iii) while he was still a serving member of the Navy. He was cross-examined to establish that medical facilities were available to sailors and that it had been open to him to raise with naval medical staff the fact that he was suffering from nightmares, nervousness at sea, and excessive drinking. In my opinion this submission also failed to take into account the applicant’s evidence, that he considered that his reactions were part of a normal reaction to the collision. The applicant’s naval medical records are available and show that he sought and received treatment for various complaints in the period between the collision and the date of his discharge. There is no suggestion that naval medical staff inquired of him whether he considered that his experience of the collision had effected his functioning in any respect. It is true that he did not complain of the nightmares, nervousness and increased drinking. He said that on the return voyage to Sydney after the collision the crew had been told not to talk about the collision (first affidavit paragraph [20]). I accept that the applicant considered his reaction was within the range of normal reactons to such an event and I do not find that he ought to have become aware of the three matters in s 60I(1)(a)(i) – (iii) prior to shortly after his discussion with his son in which he learned of Mr Lymbery’s claim. His statement of claim and the present application were filed within three years of that time.

41 I turn now to a consideration of whether it is just and reasonable to order that the limitation period for the applicant’s cause of action be extended. It is necessary for the applicant to establish that the extension of the limitation period to allow him to bring his claim would not result in significant prejudice to the respondent: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128; Commonwealth of Australia v Smith per Santow JA at [121] – [129]. Significant prejudice is prejudice that would make the chances of a fair trial unlikely: Commonwealth v Smith per Santow JA at [124] – [129]. It is acknowledged that, for a trial to be fair it need not be perfect or ideal: Holt v Wynter per Priestley JA at [142]; McClean v Sydney Water Corp [2001] NSWCA 122.

42 Counsel for the respondent pointed to the absence of any medical opinion to support a diagnosis of PTSD or other recognised psychiatric injury. Professor Kenardy’s report was said to contain no more than a recitation of the criteria for PTSD (and alcohol dependence/abuse and specific phobia) and a record of the history given. There was nothing to suggest that clinical judgment had been applied in arriving at a diagnosis. In the respondent’s submission the applicant could not be said to have established that he had an arguable case in the absence of medical opinion that he in fact suffers from PTSD or some other recognised psychiatric condition as the result of his experience of the collision.

43 Counsel for the applicant submitted that Professor Kenardy’s report read as a whole made clear that he was of the opinion that the applicant in fact suffered from PTSD: in the concluding paragraph Professor Kenardy expressed the opinion that the applicant would benefit from treatment for his condition of PTSD, anxiety disorder and depressive symptoms. Counsel referred to the decision of the Court in R v Whitbread (1995) 78 A Crim R 452 in support of the submission that Professor Kenardy’s qualifications equipped him to express an opinion as to the applicant’s condition of PTSD and allied mental conditions. I do not consider that leave should be refused upon the basis that the applicant has failed to disclose that he has an arguable case that he has suffered psychiatric injury as the result of his experience of the collision.

44 The respondent’s principal objection to the grant of leave is that it contends it will suffer significant actual prejudice at any trial.

45 Counsel for the respondent noted that criterion “A” in DSM-IV for the diagnosis of PTSD requires that the sufferer be exposed to a traumatic event and that he or she subjectively experience feelings of horror in response to it. In his submission the respondent is prejudiced by the absence of witnesses who may be able to comment on the applicant’s response at the time of the collision. I do not consider that the absence of witnesses in this respect is likely to occasion prejudice to the respondent. The suggestion that any member of the crew of the Melbourne at the time of the collision, or in its immediate aftermath, might have made observations of the applicant seems to me to have an air of unreality about it. Any observations that might have been made are unlikely to have any bearing on the question of whether the applicant suffered PTSD by reason of his experience of the collision.

46 More prominent in the way the respondent puts its case on the question of prejudice is that any claim for psychiatric injury is likely to be substantially dependent on the history obtained by the expert witnesses. The history taken by Professor Kenardy of the applicant’s sleep difficulties and nightmares is inconsistent with the account given by the applicant in his first affidavit and in oral evidence. The inconsistency is notable. The applicant impressed as frank in the course of his evidence during which he made concessions. The significance of the apparent inconsistency in the history obtained by Professor Kenardy is a matter that the respondent can address by expert evidence.

47 The respondent submits that it is prejudiced in testing the question of causation of any psychiatric injury to which the applicant may be subject. Counsel pointed to the absence of contemporaneous records or other independent evidence of the applicant’s conduct and aptitude in the period prior to the collision. There is an absence of independent evidence concerning the applicant’s personality and conduct prior to his entry into the Navy. He was aged 18 years at the time. The limited material that is available confirms that prior to joining the Navy the applicant had been employed by Queensland Railways.

48 The applicant’s Certificate of Service is not available. He was not supplied with one at the date of his discharge. He was given his Trade Certificate and subsequently he received a Certificate of Discharge in the mail. Inquiries made by the respondent’s solicitor establish that the applicant’s naval records were destroyed in 1990. A number of records relating to the applicant’s service are annexed to his first affidavit. These include a document described as the applicant’s naval historical record, which is dated 12.2.1970. This contains particulars of the following:

§ Awards and decorations received;

§ Courses undertaken and results of examinations;

§ Results of medical surveys;

§ Details of promotions and changes in title together with their effective dates;

§ Details of postings and employment from the date of recruit intake until discharge;

§ Leave taken.

In addition to the material contained in the historical record the applicant has produced copies of naval records which record his character and efficiency assessments for the period 1961 to 31 December 1963.

49 Documents described as the applicant’s “general naval record” are also annexed to his first affidavit. These include his naval medical records. The last of these is a copy of the statement on discharge completed by the applicant, which is dated 21 September 1970. The applicant recorded that he was not suffering from any disabilities, had not suffered from any disabilities during his service, did not claim to be suffering from any disabilities which he considers to be due to or aggravated by his service and that he had not made any claim under the Repatriation or C.E.C Acts and had not been granted any pension or compensation. Various records detailing the applicant’s rate of pay and other allowances during the period of his service form part of his general naval record.

50 The applicant’s Trade Certificate as a Leading Seamen Radar Plot is also annexed to his affidavit, dated 19 October 1970. The applicant’s divisional officer records a personal assessment of him as of very good character, and as effective and reliable in his efficiency on duty. The remarks included a description of the applicant as:

A quiet reserved man with commendable industry Trudgett has been reliable and produces good results from those under this supervision.

51 The applicant’s Certificate of Discharge is also annexed to his affidavit, and records that his discharge was honourable and his conduct assessment was very good.

52 The applicant was aged twenty at the date of the collision. The naval records that are available establish that he had passed his ET1 Exam in December 1961. At that time his character was assessed as being very good and his efficiency as satisfactory. In each succeeding year prior to the collision he attained similar ratings for character and for efficiency. He passed further examinations in August 1962.

53 The applicant’s handwritten response to the questionnaire circulated to members of the crew of the Melbourne for submission to the Royal Commission into the causes of the collision is also in evidence. In this he recorded that he was at Five D Starboard Mess Deck at the time of the collision and states that his part in the rescue operations consisted of helping Voyager survivors up on port side of ship and supplying blankets. He says that he saw rescue boats and helicopters picking up survivors on the port side of the Melbourne.

54 Negligence will not be in issue in the event the applicant obtains leave to bring his claim. The issues for determination will be whether the applicant has suffered any psychiatric injury and, if so, causation and damages. Part of the applicant’s claim is that his excessive drinking and his pattern of heavy cigarette smoking were the product of his psychiatric injury occasioned by his experience of the collision. It seems to me that the absence of independent evidence to establish the applicant’s pattern of drinking and smoking as a teenager is unlikely to occasion significant prejudice in dealing with this aspect of his claim. Generally I consider that the absence of material touching on his conduct and disposition in the relatively brief interval between the time he left school and the time he joined the Navy is unlikely to prejudice the respondent in meeting his claim.

55 The absence of the Certificate of Service means that the respondent does not have available to it the details of the officers and non-commissioned officers responsible for the applicant’s supervision. The applicant has identified a number of sailors with whom he was on friendly terms but the respondent has not been able to locate any of these persons. The respondent is without potential witnesses who may have been able to comment on the applicant’s conduct during the balance of his service career. I accept that it so but am not persuaded that it constitutes significant prejudice having regard to the issues to which the applicant’s claim is likely to give rise. The copies of naval records that are available point to the applicant as having had a satisfactory career until the date of his decision not to re-enlist for further service in the Navy.

56 In his first affidavit and in oral evidence the applicant described experiencing sleep disturbance and nightmares on a regular basis from the date of the collision. The question of the nature and extent of any sleep disturbance is likely to be of some significance at any trial. In the course of oral evidence the applicant acknowledged that when at sea after the collision he had been housed in cramped conditions and that a restless sleeper would be likely to have come to the notice of fellow sailors. He had no recall of ever being the subject of any comment or complaint in this respect (T 16.46-54).

57 In his first affidavit the applicant said that he had been posted back to the Melbourne in 1966 and that he had been allocated to the same mess that he had been housed in at the time of the collision. This had made him feel nervous. He went on to say that most of the time thereafter he slept in the Radar Display Room, which was above water level (first affidavit paragraph [32]). In oral evidence the applicant readily acknowledged that a number of sailors preferred to sleep in the Radar Display Room because it was cooler.

58 Counsel for the respondent acknowledged that the applicant had made concessions and did not submit that he had sought to deceive the court. Nonetheless he submitted that a concession that any sleep difficulties were not such as to have been a cause for complaint was less powerful than the lost opportunity to call evidence that the applicant was a sound sleeper or the like. While I accept that is so, I do not consider that a fair trial of the applicant’s claim cannot be held by reason of the absence of evidence (apart from such inferences as may be drawn from the records o which I have referred) concerning his behaviour and disposition during the period of his post-collision naval service.

59 The applicant has furnished details of his various employers in the years since 1970 until the date of his retirement. In oral evidence he named a number of persons who had been responsible for supervising him at his various places of employment over the years. By and large he was not able to say where these individuals were now residing. In a number of instances they were people who more than 20 years ago were aged fifty or sixty years. The likelihood is that a number of them have died and that those who are still alive have no relevant recall of the applicant. As I have noted, for the bulk of his working career the applicant has been employed as a cleaner. The respondent complains of the absence of performance reviews or other contemporaneous reports of the quality of his work. I considered there was force to his counsel’s submission that relatively small to medium sized employers were unlikely to have a system in place for regular performance reviews of cleaners. It remains that whatever the applicant’s psychiatric difficulties, he was discharged from the Navy 6 years after the collision with an assessment that he was a diligent worker. From the time of his voluntary discharge he has been in continuous employment until October 2005. At times he has combined full-time employment with the operation of a private business from home. As his counsel observed, he has never claimed to have lost employment as the result of unsatisfactory performance or otherwise.

60 The applicant’s claim for economic loss has not been particularised. The applicant was employed for a lengthy period by Zupps Pty Ltd and then Ross Llewellyn Motors Pty Ltd as a stock controller. He gives figures for his earnings in each of the years, 1981 – 1998. Records have been produced by Ross Llewellyn Motors in this respect. For the bulk of his career since leaving the Navy the applicant has worked in unskilled positions. Such material as is available seemed to me to admit of the fair assessment and testing of any claim of economic loss.

61 It is not in issue that the collision was brought about by the negligence of those for whom the Commonwealth is responsible. It is not in issue that the applicant was a member of the crew of the Melbourne at the date of the collision. His location at the time of it and his duties in the immediate aftermath of it are described in the answers that he gave in the questionnaire that was submitted to the Royal Commission into the causes of the collision. Whether he is suffering from PTSD and /or alcohol abuse are issues upon which the respondent is able to obtain expert opinion. There are lengthy periods during which there is an absence of independent evidence concerning his behaviour and disposition nonetheless I am satisfied that a fair trial may still be held. I consider that it is just and reasonable that the limitation period for the applicant’s cause of action be extended.

ORDERS

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

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