Wood v The Commonwealth of Australia - [2005] NSWSC 1263

No judgment structure available for this case.

CITATION:
Wood v The Commonwealth of Australia [2005] NSWSC 1263

HEARING DATE(S): 22,23 September 2005

JUDGMENT DATE :

8 December 2005

JUDGMENT OF:
Patten AJ at 1

DECISION:
See paragraph 48

LEGISLATION CITED:
Limitation Act 1969

CASES CITED:
Watts v Rake (1960-61) 34 ALJR 186
Commonwealth v McLean 41 NSWLR 389 at 395
Harris v Commercial Minerals Ltd (1956) 135 ALR 353

PARTIES:
John Edward Wood - Plaintiff
The Commonwealth of Australia - Defendant

FILE NUMBER(S):
SC 20923 0f 2001

COUNSEL:
Mr P Hennessy SC with Mr J Sharpe - Plaintiff
Mr C Barry QC with Mr I McLachlan - Defendant

SOLICITORS:
Hollows - Plaintiff
Australian Government Solicitor - Defendant

LOWER COURT JURISDICTION:

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

8 December 2005

No: 20923 of 2001

John Edward Wood v Commonwealth of Australia

JUDGMENT

1 On 13 November 2001, the Plaintiff filed a Statement of Claim in this court seeking damages from the Defendant for the emotional and psychological sequale of an alleged act of negligence by the Defendant, committed on 10 February 1964 when HMAS Melbourne, upon which the Plaintiff was serving as a member of the Royal Australian Navy, collided with and sank HMAS Voyager upon the high seas, some 20 miles south east of Jervis Bay. The Defendant does not deny that the collision resulted from the negligence of person for whose negligence it is responsible.

2 In anticipation that the Defendant would assert (as indeed eventuated) that his cause of action was statute barred, the Plaintiff, by Notice of Motion filed with his Statement of Claim, sought relief by way of orders as follows:

“1. That pursuant to Section 60G of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding be extended for such period as the Court determines.

2. Further or in the alternative, an Order pursuant to section 58 of the Limitation Act 1969 (NSW) extending the limitation period.

3. Further an Order under 36 of the Limitations Act 1985 (ACT) that the limitation period be extended for such period as the court determines.

4. Further or in the alternative, an Order pursuant to Section 23 A of the Limitation of Actions Act 1958 (VIC) extending the limitation period.

5. Such further or other relief as to the Court seems fit.

3 The motion was argued before me on the basis that the only relief sought is an order under s60G of the Limitation Act

4 In support of the motion, Mr P Hennessy SC who appeared for the Plaintiff with Mr J L Sharpe read affidavits of the Plaintiff respectively sworn 25 January 2002, 11 May 2005 and 22 September 2005 and the affidavit of David Brian Forster sworn 8 July 2005. Much of Mr Forster’s affidavit was, however, rejected.

5 In the first mentioned affidavit, the Plaintiff deposed that he was born on 25 November 1938; was educated at Randwick Boys High School to Intermediate level; and after leaving school in 1953 became an indentured apprentice machinist. He obtained his trade qualifications in January 1959. On 4 January 1957, he married and the marriage produced three, now adult, children. His wife died on 6 May 1984 and he remarried on 23 March 1985 his present wife, Bonnie Wood.

6 His involvement with the Australian Armed Forces commenced in 1957 with a period of 3 months national service, followed by compulsory service with the Citizens Military Forces. On 25 August 1959, he entered the Royal Australian Navy as an engine room artificer class 4, with the rank of Petty Officer. His term of engagement was for 9 years and his intention was to expand his knowledge of his trade and pursue a rewarding career. At the time, he said that he was in excellent health.

7 On 2 January 1962, he was posted to HMAS Melbourne and on 25 October 1962 was promoted to the rank of engine room artificer clerk 1, with the rank of Chief Petty Officer. He was primarily involved with the ship’s air-conditioning and refrigeration. In the course of his duties on the night of 10 February 1964, he was working as a catapult operator in the catapult machinery room on 1 deck, in the bow of Melbourne and was at that station when, in darkness, the collision occurred. With him at the time were three sailors whose names he recalled as Tony Moore, Bill Peverall and “Pud” Sando. The collision and its immediate aftermath were described by the Plaintiff in these terms:

“……………………………………

That whilst I was on the flight deck as aforesaid I heard the anguished screams of the “Voyager” crew in the water. I also saw these distressed crewmen in the water covered in oil as the scene was now lit by searchlights from my ship. I also saw distressed “Voyager” survivors standing on its stern.

8 For a number of hours, the Plaintiff was then engaged in rescuing Voyager survivors, all of whom were covered in oil and very distressed. Some were injured. Eventually he was able to retire to his bunk but was unable to sleep because of the night’s events. For the next two days, as Melbourne steamed into Sydney, he had to stand in the bow of the ship, under the water line, keeping watch over the damage to the Melbourne, which had been shored up with timber. He feared, during this time, that the shoring would fail, allowing the entry of seawater and his almost certain death by drowning.

9 Melbourne docked at Garden Island and the following week as the Plaintiff moved about Sydney, in uniform, he said that he was frequently reviled by members of the public, apparently upon the basis that he, as a member of the crew of Melbourne was responsible for the sinking of Voyager and the death of 84 men.

10 The events of the night of 10 February 1964 caused the Plaintiff, so he testified, to lose confidence in the navy and to change his attitude towards the career on which he had embarked. He had hoped that it might ultimately lead to promotion to the rank of Warrant Officer or commissioned rank up to Lieutenant Commander. He said that instead he served unenthusiastically and disillusioned up to 24 August 1968, when he took the earliest opportunity to leave the navy.

11 The Plaintiff claims that since the collision he has been severely stressed and has been treated for a range of complaints and symptoms, including diabetes, high cholesterol, hypertension and impotency. He has, however, been able to engage in almost constant employment. Up to 1983, he made use of his trade qualification as a fitter. From 1983 until 2003, when he retired following a diagnosis of prostate cancer, he was employed by the State Transit Authority at Newcastle as a bus driver.

12 In late 2000 or early 2001, he saw an advertisement indicating that the conditions for defence forces pensions had altered. He obtained forms for a pension application and called upon Mr George Berman, the Pensions Officer at the Cessnock RSL sub-branch. It was his evidence that, prior to the interview with Mr Berman, he had made no link between the events of 10 February 1964 and the state of his health.

13 Following his meeting with Mr Berman, he applied for a disability pension to the Department of Veterans Affairs. He claimed as war or defence caused disabilities, diabetes, impotency, breathing problems, hearing problems, skin disorders, post traumatic stress disorder and hypertension. However, he related only post traumatic stress disorder expressly to the events of 10 February 1964, stating, “Was in the bow of the Melbourne when it hit the Voyager”, in answer to the question, “How do you believe your service caused, contributed to, or aggravated this disability.

14 In due course he received a decision upon his application. His claim for bilateral or senso-renewal hearing loss was accepted but all the other claims were refused. In relation to the claim for post traumatic stress disorder he was provided with these reasons:

“Post traumatic stress disorder

Post traumatic stress disorder is determined in accordance with the RMA Statement of Principles, Instrument number 54 of 1999.

· Severe stressor

Although there is a history of having experienced a severe stressor as defined in the Statement of Principles (your involvement in the Voyager disaster) this did not occur on operational service (see above under the heading Service under the Veterans’ Entitlements Act).

Aggravation of post traumatic stress disorder by factors that are due to service can only be considered if this condition developed before the end of service covered by the Veterans’ Entitlements Act. Post traumatic stress disorder developed after this service therefore I cannot take any possible aggravation into account. I can only consider whether this service caused the condition.

The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of post traumatic stress disorder. As a result I find that all the evidence does not raise a reasonable hypothesis connecting post traumatic stress disorder and operational service. I am therefore unable to accept it as war caused.”

15 The Plaintiff now attributes a number of physical and mental problems directly to the events of 10 February 1964 and claims that they, in turn, resulted in, or contributed to, the fact that he is estranged from his three children and has experienced difficulties in both his marriages. His case is that the first medical practitioner to advise him of the possible link between the sinking of Voyager and his medical problems was psychiatrist, Dr William Glaser, to whom he was referred by his solicitors and first consulted on 20 November 2001.

16 In his report of 10 December 2001, Dr Glaser recited a detailed history given to him by the Plaintiff, including these paragraphs:

“He went on to explain that following his discharged from the navy, he became quite irritable and fearful of crowds. With his children he apparently became quite tyrannical. “I wouldn’t give them a choice …. what I said went…” he was quite harsh with his son, whom he now realizes had dyslexia (reading difficulties) but who, at the time, he thought was “just lazy”. This son ran away on four occasions and eventually the matter went to the children’s court. At one stage, there was even talk of charging Mr Wood and his wife with being “unfit parents” but apparently the social work assessment performed at the time did not support this.

His oldest daughter became pregnant and ran away, apparently marrying subsequently to “get away” from home.

He remains estranged from his children to this day. He does not know where his oldest daughter is. His other daughter sent him a sixtieth birthday card recently but he has not had much contact with her. Even though his son’s son (i.e. his grandson) telephones him occasionally, the son himself “doesn’t talk to me otherwise”.

Tragically enough, his first marriage ended with the death of his first wife from lung cancer in 1984. Mr Wood had to nurse her for some eighteen months previously. He was able to marry again the following year but he feels that if it were not for his present wife, “I would be an alcoholic or in a mental institution”.

In the meantime, after he ceased working for CSIRO, he and his first wife moved around various locations on the New South Wales north coast including Coffs harbour, Lismore and Newcastle. He actually managed to obtain a permanent job as a fitter in the Newcastle dockyards but these were closed down only a month after he was put on.

Finally, in 1983, he took up his current position as a bus driver on the Newcastle buses and is still working full-time at this, although he experiences considerable fatigue and irritability.

It is to his credit that he has managed to continue working, despite a number of significant medical problems. High blood pressure was discovered in 1973 during a routine medical examination to assess his fitness to dive (when he was still working for CSIRO). He has been on medication for high blood pressure intermittently since.

Around five or six years ago, he was diagnosed as suffering from diabetes when consulting a specialist physician because of high blood cholesterol levels. This is currently being treated with diet and Daonil medication. He tries to monitor his glucose levels using urinary dipsticks; he cannot afford a glucometer”.

17 Towards the conclusion of his report, Dr Glaser proffered the following diagnosis and opinion as to causation:

In terms of his current psychiatric state, he is suffering from a chronic depressive disorder (sometimes known as “dysthymia”) which is of mild but appreciable severity. His current symptoms include irritability which has been quite marked at times, verbal aggression, social isolation, sleep disturbance, bad dreams and some slight problems with his memory and concentration. He is fortunate in that he has managed to reduce his alcohol consumption considerably but he is still drinking at a level which will make it difficult for him to control his diabetes and high blood pressure properly, and his fixed need for his daily four glasses of beer after work implies a certain level of continuing dependence on alcohol.

The causation of his current difficulties is a complex matter. It is noted that he experienced the separation of his parents when he was very young and he had to leave school early because of the financial difficulties caused by this separation. In his later years, he was dealt a significant emotional blow by the prolonged and tragic death of his first wife from cancer. These factors, of course, would not be related to the circumstances of the Melbourne/Voyager collision.

However, the collision itself was certainly a terrifying experience for him; he was initially trapped in a workshop very close to the location of the collision and he and his fellow crew members mistook the sound of the Voyager’s boilers submerging as being that of water entering the Melbourne. They were all convinced that they were going to drown. He was subsequently subjected to the distressing sights of the Voyager sinking and of the survivors who had suffered considerably and whom he had to assist on board. It was after this experience that his consumption of alcohol increased quite markedly and he started to develop the marked irritability which subsequently caused substantial strains on his first marriage including estrangement from all three children.

The available evidence, therefore, strongly indicates that the Melbourne/Voyager collision has had a major influence on the development of this gentleman’s psychiatric problems and the effect of this influence persist to the present day, even though Mr Wood has had difficulty in acknowledging them.”

18 Dr Glaser has not been alone in linking at least some of the Plaintiff’s medical problems to the sinking of Voyager. In conjunction with his pension claim, he was referred by the Department of Veterans Affairs to psychiatrist, Dr Frank Lumley, in June 2001. Dr Lumley concluded his subsequent report:

“On Mental State Examination: He presented on time as a man considerably overweight with a florid face. There was no evidence of formal thought disorder and his mood was normal but he became distressed to a moderate degree when speaking about the Voyager disaster. On cognitive testing there was no impairment of his ability to concentrate or of his short term or long term memory.

In My Opinion: He suffers from a moderate degree of Post Traumatic Stress Disorder which affects his life again to a moderate degree. I consider that he is finding it increasingly difficult to cope with his job as a bus driver in the city of Newcastle and indeed he spoke about hoping to be able to retire shortly because of the stress that h e feels with his present job.

In Summary: He suffers from a moderate degree of PTSD which affects his life to a moderate degree and which is directly related to his service in the Royal Australian Navy.”

19 While he remained in the Navy, according to the Plaintiff’s oral evidence, whenever he needed medical attention, he consulted a naval doctor. His naval medical history was annexed to his affidavit sworn 11 May 2005. He said that he did not ever seek psychiatric or psychological advice whilst in the Navy. He was, however, able to provide the names of 17 medical practitioners and hospitals who have treated him, or from which he has received treatment since 1988. In the period between leaving the Navy and 1988, he said that he rarely consulted medical practitioners and those he did consult were for common ailments, such as coughs and colds, apart from Dr Arnold of Union Street, Newcastle, who treated him for hypertension,

20 In his affidavits, the Plaintiff also provided detailed particulars of his employers and of his employment since leaving the navy; the names of shipmates on Melbourne and other ships in which he served; medical records; the names of workmates in post naval employment; and a copy of the report of psychologist, Helen Stain whom he consulted in October 2002.

21 Cross-examined by Mr Barry QC, who appeared with Mr McLachlan for the Defendant, the Plaintiff agreed that a large number of documents to which he had been taken during his evidence-in-chief suggested that he had no psychological problems whilst in the navy. It was put to him that after he left the Navy and up to 2001, none of the documents he had been shown, suggested that he had any psychological problems. He replied, “They suggested I had symptoms of other problems but not specifically psychological problems”.

22 There was then this exchange with Mr Barry:

“Q. I know this is probably a little bit technically difficult but I'm trying to get you to address your mind to the difference between what you noticed about yourself and what other people told you was the significance of what you noticed about yourself, do you understand what I'm trying to direct your attention to?
A. I knew my blood pressure was going up. I knew my crankiness was getting worse and my sleeping was getting more fitful. That's what I noticed. I put all this down to aging, just normal run of the mill things that people go through.

Q. That's what I was trying to direct your attention to. When, in what year or in relation to what events was it that you noticed these changes in your personality or habits or however you wish to describe it?
A. Virtually immediately when I got home after the collision. My attitude from my - towards my children and to my wife started to - my crankiness and my rigidity with them virtually started then on reflection. I didn't notice it then but looking back I can see that.

Q. At the time of the collision you were, of course, a young man?
A. Yes.

Q. So that you wouldn't attribute those changes as being age related?
A. No, no.

Q. And you did recognise that those changes in your personality and your habits and your behaviour towards others such as your family were the result of the trauma of the accident?
A. Not at the time I didn't recognise that but on reflection I could see that. At the time it came on not like a clap of thunder but gradually, you know. It didn't just happen overnight.

Q. But you must have recognised that the change was due to something that had happened to you?
A. I think I attributed the changes to other things like my children going to school and not doing as well as I would expect and, you know, these sort of changes I could see that I was getting stricter and more distant from them sort of thing. It didn't just occur to me that this was due to the accident, you know.

Q. Did you make any connection between the accident and the change in your personality and habits?
A. Not at that time, no.

Q. When was the first time that you believed that there was a connection between the way in which your personality had changed after the accident and the trauma that occurred during the accident?
A. When the psychiatrist put in his report that this was what it was related to, Mr Lumley, Dr Lumley.

Q. That was at the time that you applied for the Department of Veterans Affairs' benefits?
A. Yes, when they sent me to him.

Q. It was because of what the psychiatrist had told you that you then related back what he had told you to what you had noticed about yourself; is that right?
A. Yes, on reflection after he said, you know, this incident started these chain of events, yes.

Q. Similarly when you saw, I think, Dr Glaser?
A. Yes.

Q. He also told you that that was the cause of the changes that you noticed?
A. Yes.

Q. And similarly when you saw Ms Stain?
A. Yes.

23 As to his alcohol intake, the Plaintiff agreed with Mr Barry that prior to 10 February 1964, he was accustomed to drink 8 schooners of beer a day when he was not at sea. He also agreed that after the sinking of Voyager, he continued to drink substantial quantities of alcohol on a daily basis. When pressed by Mr Barrry on the subject, he would not concede, however, that health problems such as hypertension, diabetes, elevated cholesterol and gout were related to alcohol, or that he had been given advice to that effect.

24 He accepted Mr Barry’s suggestion that he has, for many years, been suffering poor health. Asked whether this affected him psychologically, he replied, “I could not make that statement. There are things I couldn’t do because of my poor health, to say it affected me psychologically, I couldn't say that “.

25 Regarding his general functioning in the period after he left the Navy, there was this cross-examination by Mr Barry:

“Q. I am not being critical but you were told by people you had PTSD when you had these medical interviews in 2001, weren't you?
A. Yes.

Q. Do you agree that when you look at what exists on any records in relation to the three and a half years after you left the navy that they rather suggest someone who was functioning extremely well?
A. I cannot judge myself, I can only suggest that I applied myself to my responsibilities. I cannot say what my psychological - I cannot say, you know.

Q. But you would agree, would you not, that objectively you were promoted after you joined the, if I could call it, civilian navy?
A. Yes, yes.

Q. Then you applied for and were successful in obtaining what was in effect a further promotion at the CSIRO?
A. Yes.

26 Further cross-examination and the introduction of a number of documents into evidence established that, at least until 1979, the Plaintiff was regarded very highly by his various employers. He agreed with Mr Barry that his employment history had been very good, adding, “I’m a person who, I either do the job properly or I don’t do it at all. I take pride in what I have to do”.

27 The Defendant relied upon a number of affidavits, tending to establish that actual prejudice would be suffered by it if the Plaintiff’s action were allowed to proceed, principally due to the unavailability of witnesses, including those who were with the Plaintiff at the time of the collision and the absence of some naval records said to have been destroyed. It is clear that some relevant records have been destroyed and in her affidavit Donna Ann Robinson, a senior lawyer in the office of the Australian Government Solicitor, inter alia, asserted, “In my opinion the information contained within the destroyed documents, particularly the service details, the extent of service, and volunteering for service on HMAS Taragua would be most relevant to the Defendant to enable it properly to present its case, because they related to the Plaintiff’s performance, ambitions and presentation”. The Plaintiff served on HMAS Taragua on Manus Island in Papua New Guinea from about 5 March 1964 to 30 June 1966.

28 However Ms Robinson’s affidavit indicates that some records are available as to the Plaintiff’s attendance upon naval surgeons, following the Voyager collision and up to May 1968. The affidavit identified a variety of information and documentation which, as at the date of her swearing the affidavit on 2 September 2002, she had been unable to obtain and which she contended were required in order that the Defendant might fairly prepare a case if the matter goes to trial. An affidavit by Gregory George Kathner, a solicitor in the office of the Australian Government Solicitor, sworn 31 July 2003, deposed as to investigations which he had made in relation to the Plaintiff’s claim and pointed to difficulties experienced in that regard. For instance, a Mr David Rochford, a work associate of the Plaintiff in the period 26 August 1968 to 18 August 1972, was deceased. Paragraph 25 of the affidavit states:

“The Plaintiff alleges in his affidavit sworn 25 January 2002, at paragraph 19, that he was most frightened on the trip back to Sydney after the collision when he had to perform damage control watch in the bow of the ship. I have initiated a search to identify any other persons who also performed this watch. So far as I am aware, no other person has yet been identified.”

29 Further affidavits, in relation to prejudice suffered by the Defendant, those of solicitor, Ms Elena Ordiz respectively sworn 29 March 2005, 29 August 2005 and 20 September 2005, were read. Paragraphs 9,10,11 and 12 of her affidavit sworn 29 August 2005, stated:

“9. In his medical Statement on Discharge, the Plaintiff has stated:-

a. that he had not suffered from any disabilities that have been caused by service in the RAN; and

b. that he has made no claims for pension or compensation as a result of his service in the RAN.

10. The Plaintiff at that stage gave no indication that he intended pursuing a claim for compensation as a result of being on HMAS Melbourne at the time of the collision with HMAS Voyager and/or any indication of injuries or disabilities suffered as a result of the collision.

11. I am not aware of the Plaintiff having given any indication to the Commonwealth that he intended taking proceedings against the Commonwealth prior to the receipt of the Plaintiff’s Department of Veterans’ Affairs Claim dated 22 March 2001.

30 In the same affidavit, Ms Ortiz testified that seven servicemen had been identified who were in the same recruit intake as the Plaintiff and who were on Melbourne at the time of the collision. Of those seven, six were unable to be located or contacted, and the remaining one did not recall the Plaintiff.

31 Ms Ortiz was able to identify 9 sailors who were catapult workshop personnel on Melbourne at the time of the collision but none was able to be of assistance, nor were any of the 13 personnel she identified as being involved in the same activities as the Plaintiff whilst Melbourne was returning to Sydney following the collision.

32 The affidavits read on behalf of the Defendant demonstrate that its representatives with very considerable diligence have pursued every possible avenue of enquiry which might be of assistance in meeting the Plaintiff’s claim. The success of such enquiries has been to date, limited, but nonetheless not entirely inconsequential. I am satisfied that the Defendant has been prejudiced to some extent in gathering all the material which it would wish to gather.

33 Before considering the submissions of counsel, it is appropriate that I record that I found the Plaintiff to be a very impressive witness. He was, in my opinion, honest, forthright and reliable. He was willing, when appropriate, to answer questions in a way which could be perceived to be against his interest. If this matter goes to trial there is no reason to suppose that he would present in any different manner. I agree with Mr Hennessey’s submission that the extension of time sought may more readily be granted in the light of the Plaintiff’s likely credible presentation at trial.

34 Section 60G (2) of the Limitation Act, provides:

35 In considering whether to grant relief under s60G, I am bound to consider s60I relevantly in the following terms:

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 within3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).

36 Section 60I requires the court to be satisfied that the Plaintiff was not aware of the matters referred to but does not require proof of those matters as fact (Commonwealth v McLean 41 NSWLR 389 at 395). Moreover, a conclusion in favour of the Plaintiff of the matters specified in s60I does not of itself resolve the motion in his favour. It remains necessary in terms of s60G (2) to decide whether it is just and reasonable to extend the limitation period.

37 The Plaintiff claims for a personal injury which, by definition, includes any impairment of his mental condition. His own evidence was to the effect that he was aware of it at the expiration of the applicable limitation period, namely 10 February 1970. It may well be, however, that as at that date he was unaware of its nature or extent. Nonetheless, the principal question under s60I seems to me whether he was aware, or ought to have been aware, of the connection between the personal injury and the Defendant’s act, or omission, before he saw Mr Bertram at the Cessnock RSL about the beginning of 2001. This motion was filed within 3 years of that time.

38 In the first place, it has, I think, been established that there is a serious issue to be tried, namely whether some or all of the matters of personal injury in respect of which the Plaintiff claims, and any financial loss consequent upon them, have some causal connection to what was experienced by the Plaintiff on 10 February 1964. That there was a connection seems to be consistent with the opinion of both Dr Glaser and Dr Lumley.

39 The meaning of s60I (a) was considered by the High Court in Harris v Commercial Minerals Ltd (1956) 135 ALR 353. At 359 the Court (Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said (omitting references):

“The subjective nature of the issue
With great respect to His Honour, however, reasonable foreseeability has no part to play in determining the issue posed by s 60I(1)(a)(ii). To satisfy s 60I(1)(a), an applicant must prove that he or she was “unaware of the nature or extent of personal injury” or “unaware of the connection between the personal injury and the defendant’s act or omission” at the relevant time. To look to anything other than the applicant’s actual awareness of the matters referred to in subparas (ii) and (iii) would be to read into s 60I(1)(a) a doctrine of constructive notice that is not justified by the language of the provision. What this court said in Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd about the meaning of the words “first becomes aware of” in a Queensland statute is equally applicable to the term “unaware” in s 60I(1)(a):

“The very words “becomes aware” strongly indicate that the statute is looking to the purchaser’s actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words “becomes aware of the failure” in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a “failure” to do something which the Act says should be done.”

Support for a subjective construction of s 60I(1)(a)(ii) and (iii) can be found in the words of s 60I(1) themselves. The words “or ought to have become aware” appear in subs (1)(b) but not in subs (1)(a). This is a strong indication that neither reasonableness nor constructive knowledge is an element of subs (1)(a).”

40 Although it is clear that the Plaintiff always believed that fault lay with the Defendant in relation to the collision, I see no reason to reject his evidence that until about the beginning of 2001, he did not connect his own medical problems with that negligence or, in other words, did not connect his problems with what he experienced during and in the period immediately after the collision. I would find that the Plaintiff has brought himself within s60I of the Limitation Act.

41 As the Defendant has effectively admitted liability, essentially what the court next needs to consider is whether there can be a fair trial of the Plaintiff’s claim for damages. Mr Hennessy submitted that, on the authorities, he is required to show only that there can be a fair trial, not a perfect one. He submitted that whilst the Defendant may suffer some prejudice in being unable to locate witnesses who could possibly make a useful contribution to the case and being unable to locate or have available to it, documents which may be relevant, it has, nonetheless, considerable documentation and evidence available to it. What actually occurred on the night of 10 February 1964 has been extensively investigated and indeed has been the subject of two Royal Commissions. Even if direct support is not available as to the precise location of the Plaintiff at the time of the collision and as to his involvement in the rescue operation, it is difficult to conceive of any significant challenge being made to his testimony on those subjects. Mr Hennessy submitted that anyone on Melbourne at the time could, presumably, confirm what happened, at least in general terms.

42 Records exist relating to the balance of the Plaintiff’s service in the navy for another 4 years and records also exist as to his very satisfactory functioning in various employments he took after leaving the Navy. This evidence is favourable to the Defendant. It seems unlikely that workmates, if they were available, would portray the Plaintiff in any other light than the one conveyed by the documents and his own evidence, namely, that he was a very satisfactory employee.

43 Mr Hennessy also drew attention to what he submitted was in effect the very full disclosure by the Plaintiff of all aspects of his claim, including his medical history.

44 Mr Barry, on the other hand, whilst accepting that the Plaintiff was an honest witness submitted that it did not necessarily follow that he was reliable, pointing to the possibility of unconscious reconstruction. He also submitted that the nature of the subject matter of the Plaintiff’s claim is relevant, namely, psychological injury with no objective indicia. He suggested that the court should be more cautious than it otherwise might be in granting the Plaintiff the relief that he seeks. There is merit in that argument but of course it is countered to some extent by the fact that the Plaintiff himself might, in the absence of an obvious physical cause, fail to recognise that his various symptoms had some specific underlying origin.

45 Mr Barry drew attention to the fact that the evidence is silent regarding the Plaintiff’s psychiatric condition at any stage of the period between 10 February 1964 and 2001 for the reason that, as the Plaintiff himself testified, he did not, in that period, seek psychological or psychiatric advice. He submitted that as the Defendant did not have the Plaintiff examined during the 1960’s and the 1970’s, it might particularly suffer unfairness if an evidentiary onus were cast upon it in accordance with the principles discussed by the High Court in Watts v Rake (1960-61) 34 ALJR 186. As to the latter point, Mr Hennessy pointed out that while there may be situations where a defendant has an evidentiary onus, the onus remains upon the plaintiff to prove that the negligence of the defendant caused the personal injury of which he complains. Before any evidentiary burden shifts to the defendant, the plaintiff must do more than merely prove his present condition. The principle was stated by Dixon CJ in Watts v Rake:

“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident played no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”

46 In the result, although I accept that the Defendant may well suffer some prejudice in the way it claims, I am of the opinion that there may still be a fair trial. In my view, the Plaintiff has discharged the onus upon him in that connection.

47 In terms of s60G of the Limitation Act, I am of the opinion that it is just and reasonable to grant the extension sought and, accordingly, I would extend the time for the Plaintiff to commence proceedings arising from the events of the night of 10 February 1964, up to and including 13 November 2001. It is impossible, I think, to categorise the Defendant’s opposition to the Plaintiff’s motion as unreasonable and, in my opinion, the Plaintiff should be ordered to pay the Defendant’s costs.

48 The formal orders of the court are:

2. Plaintiff to pay the Defendant’s costs of the motion.

3. The exhibits may be returned.

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Wood v The Commonwealth of Australia [2005] NSWSC 1263

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Statutory Material Cited

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Harris v Commercial Minerals Ltd [1996] HCA 49

CITATION:	Wood v The Commonwealth of Australia [2005] NSWSC 1263
HEARING DATE(S):	22,23 September 2005
JUDGMENT DATE :	8 December 2005
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 48

LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Watts v Rake (1960-61) 34 ALJR 186 Commonwealth v McLean 41 NSWLR 389 at 395 Harris v Commercial Minerals Ltd (1956) 135 ALR 353
PARTIES:	John Edward Wood - Plaintiff The Commonwealth of Australia - Defendant
FILE NUMBER(S):	SC 20923 0f 2001
COUNSEL:	Mr P Hennessy SC with Mr J Sharpe - Plaintiff Mr C Barry QC with Mr I McLachlan - Defendant
SOLICITORS:	Hollows - Plaintiff Australian Government Solicitor - Defendant