Leigh Evans v Commonwealth of Australia [2005] NSWSC 280

New South Wales Supreme Court

CITATION : Leigh Evans v Commonwealth of Australia [2005] NSWSC 280

HEARING DATE(S) : 1 & 4 April 2005

JUDGMENT DATE : 7 April 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Master Malpass at 1

DECISION : 1. The limitation period for the cause of action pleaded in the statement of claim is extended up to and including 26 February 2002; 2. The costs of the application are reserved; 3. The exhibits may be returned.

CATCHWORDS : Threshold requirements - significant prejudice - fair trial and experts' code of conduct.

Limitation Act 1969, ss60G, 60I LEGISLATION CITED : Supreme Court Rules 1970

Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth v Diston [2003] NSWCA 51 CASES CITED : Commonwealth v Nelson [2001] NSWCA 443 McLean v Sydney Water Corporation [2001] NSWCA 122

Leigh Evans (Plaintiff) PARTIES : Commonwealth of Australia (Defendant)

FILE NUMBER(S) : SC 20049/02

Mr J L Sharpe (Plaintiff) COUNSEL : Mr P S Jones & Mr D Brogan (Defendant)

Hollows (Victoria) (Plaintiff) SOLICITORS : Australian Government Solicitor (Defendant)

LOWER COURT JURISDICTION :

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

7 April 2005

20049 of 2002 Leigh Evans v Commonwealth of Australia

JUDGMENT 1 Master: This is another of the many proceedings brought before this Court arising out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. 2 The statement of claim was filed on 26 February 2002. A notice of motion was filed on the same day. It sought an extension of the relevant limitation period pursuant to s60G of the Limitation Act 1969 (the Act). Breach of duty has been admitted by the defendant. 3 The hearing of the application commenced on Friday 1 April 2005. It occupied two days. A number of affidavits were read (including two affidavits sworn by the plaintiff). 4 The plaintiff was subjected to a very lengthy and detailed cross-examination concerning the collision and, inter alia, his life history. 5 He was born at St Arnaud, Victoria, on 19 April 1930. He left school when he was about 14 ½ years of age. He wanted to join the Navy at an early age. He was unable to do so until he attained his majority. He joined the Navy as a recruit on 11 April 1949. By June 1960, he had been promoted to Acting Petty Officer. After serving on various ships, he was drafted to HMAS Melbourne in December 1961. 6 At the time of the collision, he was preparing to screen the movie of the evening in the Officers' Wardroom. What he saw and what he felt following the collision is set forth in paragraph 5 of his affidavit sworn on 2 March 2002. 7 In the said affidavit, he further deposed, inter alia, to the following:- 7. The following day on the journey back to Sydney there was very little discussion at all. Everyone was glum and felt terrible. I then learned that the loss of life had been extensive. I later learned that many of those who died had been from my intake or otherwise were well known to me. We all had to sign a document stating what we were doing at the time of the collision, and were otherwise told not to say anything to anybody about the collision. When we arrived at Cockatoo Dock, as soon as I was given liberty I went straight across to the hotel across the road and spent several hours drinking, trying to shut out the thoughts and memories of the event. I returned to the ship for dinner. I lay awake thinking about what had happened. I tossed and turned for most of the night. On the following days, I similarly when I could went across to the hotel and consumed probably some 10 to 15 pots of beer. Prior to the collision I was accustomed to only have a few drinks on social occasions, and often did not drink my daily issue at sea. However, after the collision I regularly felt the need for drinking some 10 or more pots each day after completion of my duties in order to occupy my mind. 8. After the collision, I realise now that my attitude to the Navy totally changed. I no longer felt comfortable at the thought of going to sea, as I could not feel safe. I knew that as I had been on a sea draft for the past two years, I was likely to be due for a shore draft next, so I did sign up for a further three years service to take me up to April 1967. … … … 10. Whilst at Cerberus I maintained my drinking habit that I had developed since the collision of some 10 pots or stubbies per day, mostly in the late afternoon and evening when I found the need to stop me dwelling on the unwelcome thoughts of the collision. My sleep continued to be disturbed and restless, tossing and turning. On several occasions I have had an incredibly vivid dream of being enclosed in a pipe, unable to move, wrapped up in a sheet. I have woken from this dream sweating profusely and feeling terribly upset and distressed. After some time I tended to be able to get to sleep with the beer, but found I was waking up somewhere around 1.00am or 2.00am and it was very difficult to get back to sleep again. I maintain this habit, and tend to stay up from that time, setting the table for breakfast or just sitting around the house waiting for daybreak. 11. In October 1964 I had been recommended as suitable for consideration for promotion to Chief Electrician (equivalent to Chief Petty Officer). I sat the test and passed well. However, I was not actually confirmed in the position. I was informed by my superior officers, that initially, I was on a roster waiting for a vacancy in the ranks of Chiefs. I also needed further time at sea, but I had resolved that I could not face returning to sea. As April 1967 approached, I was only two years short of my twenty years to qualify for a pension. I was also due for return to sea, but as stated above could not face doing so. In the end, I applied for and was granted a transfer to the naval dockyard police located at HMAS Lonsdale in Melbourne. This enabled me to obtain my twenty years and remain employed, however, it also meant me giving up my seniority, dropping back some two ranks to a constable which was the equivalent of an Able Seaman. It also meant my dropping my trade in which I was qualified, this seemed the only option possible. My memory was that I only needed to sign on for three years, although on recently receiving my Certificate of Service I have noted that it shows a signing on period of five years. In any event, I was discharged from the Navy on the 6th July, 1970. I found I was irritable and did not fit in well with the Naval Police, it lacked the discipline and mateship that I had enjoyed in the sea going branch prior to the collision. I had lost my way. I no longer felt an affinity with the Navy. I did not know what to do for a career any longer, I was irritable and I did not care very much. 8 He applied for a discharge. He was discharged on 6 July 1970. Thereafter, apart from running his own milk bar business, he was more or less continually engaged in a variety of jobs (including truck driving and taxi driving). He had a heart attack in 1989. He worked until about 1990. 9 In paragraph 17 of the said affidavit, he further deposed to the following:- I have been reluctant to talk about the collision with anyone until recently when the secretary of the local RSL, who was aware I had been on the Melbourne at the time of the collision, suggested I should contact Hollows, Solicitors, who were acting for sailors who had suffered injuries as a result of the collision. Although I did not believe I had suffered an injury, I did contact this firm and was asked to answer some questions concerning my experience in and after the collision. As I commenced to do so, the emotions this stirred up made me feel sick and anxious, I was shaking like a leaf and unable to drive anywhere. I had to be put to bed to recover. I subsequently found some relief talking about the events, and in reviewing my history, I recognised how my character and personality had changed following the collision. 10 His conversation with the secretary of the local RSL took place shortly before March 2002. 11 In paragraph 18 of the said affidavit, the plaintiff further deposed that:- Until recently when I had begun talking about the collision, I had not appreciated or even suspected that I had suffered a psychiatric injury as a result of the collision, and that this helped to explain and account for my changes since that event and the deterioration in my quality of life that occurred after it. 12 In his affidavit sworn on 27 August 2004, he deposed, inter alia, to the following:- 28. My solicitors arranged for me to attend Dr William Glaser for psychiatric assessment on 28 August 2002. Exhibited before me at the time of swearing this Affidavit and marked with the letters "LE7" is a true copy of the report of Dr Glaser dated 2 September 2002. 29. Dr Robert Ng referred me for treatment to Dr C Slack, Psychiatrist, whom I saw on two occasions in early 2003. Exhibited before me at the time of swearing this Affidavit and marked with the letters "LE8" is a copy of Dr Slack's report provided to my solicitors by way of letter dated 24 March 2004. 30. I was not aware that I suffered from a psychiatric illness arising from the Melbourne/Voyager collision until I read the report of Mr Robert Wilks dated 18 January 2002 and the subsequent report from Dr William Glaser dated 2 September 2002. At no time had I mentioned to any doctor who had treated me previously of the symptoms I was suffering which have now been diagnosed as Post Traumatic Stress Disorder arising from the Melbourne/Voyager Collision. 31. Further, I was unaware that my injuries were caused by the negligence of the Defendant until I received and read a copy of the Statement of Claim prepared on my behalf by my solicitors. Exhibited before me at the time of swearing this Affidavit and marked with the letters "LE9" is a copy of the Statement of Claim filed on 2 February 2002. 13 The report from Mr Wilks contains the following:- Mr Evans is a gentleman who for 38 years has been subject to the phenomena of irritability, alienation from others and a fear of going on the open ocean but (at least up to 1989 or so), no other similarly longstanding symptoms that he could identify. Those symptoms with 1964 onset followed his exposure to the Melbourne-Voyager and the experiencing of fear and horror during that incident. Thus Mr Evans developed some features of Post-Traumatic Stress Disorder (PTSD) as a result of his involvement in the collision, but did not develop the full Disorder. Nevertheless his PTSD features were persistent and led to quite major social and occupational dysfunction for Mr Evans, ie, he took to alcohol use as an anxiolytic, he abandoned his naval career because of his fear, he could not settle occupationally or socially and his second marriage declined, if not ended, because of his irritability and drinking. In the 1990s Mr Evans developed some further symptoms, ie, poor concentration, fatigue, low libido, tremors, sweats and a sub-phobic fear of enclosure. To a large degree those problems can be seen as arising from his 1989 heart attack and/or general aging; however there would seem to be an interaction of those influences with Mr Evans' chronic PTSD features, with his late-developing nightmares and fears re constriction no doubt harking back to his experience of confinement below decks just after the collision. 14 Dr Stack informed the plaintiff that treatment may alleviate some of his symptoms. 15 In his oral evidence, he conceded that from shortly after the collision he was aware that he had been affected by it. 16 He has had two marriages (of which there are children) and other relationships. 17 Since his heart attack in 1989, he has had various health problems and has been taking a number of medications. 18 I now turn to the relevant statutory requirements. Section 60I of the Act prohibits the making of an order under s60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These provisions have been seen as imposing threshold requirements to the making of an order. 19 When these matters have been satisfied, the court may grant relief if it also decides that it is just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to the relief sought. 20 Before proceeding further, I should mention certain matters which took place at an early stage in the hearing. A number of problems arose concerning questions of admissibility of evidence. 21 On 8 October 2004, these proceedings were allocated a hearing date expected to occupy two days. Despite informing the plaintiff of objections it had to the admissibility of other evidence, the defendant did not advert to any matter of the admissibility of the expert reports relied on by the plaintiff. 22 Following the commencement of the hearing, objection was taken to the tender of the expert reports on the basis that there had been a failure to comply with Pt 36 r 13C of the Supreme Court Rules 1970. 23 After hearing argument on the question, I came to the view that in the relevant circumstances of this case justice was best served by the Court exercising its discretionary power to either make an otherwise order or dispense with compliance with that rule. 24 The plaintiff is now almost 75 years of age and has health problems. He had come down from Queensland for the purposes of this hearing. If the reports had been rejected, it would have been necessary to abort a hearing that had been fixed for two days. The solicitors for the plaintiff practice in Victoria. At the time that the reports were obtained, they may not have been aware of the code of conduct provisions. It has not been said that the contents of the reports indicate impartiality. 25 The Court was informed that steps were being taken to make contact with each of the various experts concerning the code of conduct provisions. The hearing concluded before anything further was heard on this matter. 26 The Wilks report had been prepared prior to the commencement of the proceedings (and perhaps at a time prior to the contemplation of proceedings). The principal function of all of the reports was to demonstrate that the plaintiff had available to him evidence that gave support to his claim. 27 The Court was not embarking on a trial involving a final deliberation of issues. It was not engaged in an exercise where it would be asked to make a choice between competing experts. 28 Subsequently, the plaintiff objected to the tender of material comprised of correspondence from investigators employed by the defendant. The intent of the material was to set out the result of enquiries made by the investigators as to, inter alia, the availability of various persons. The material was in a form that made it inadmissible for a number of reasons. Accordingly, it was rejected. 29 A sustained attempt has been made to attack the credibility of the plaintiff. Despite the length of the cross-examination, little more than confusion was thrown up (involving, inter alia, possible conflict with history given to an expert and the contents of a medical record dated 28 May 1969). I do not regard the plaintiff as an unreliable witness. 30 I bear in mind that the plaintiff is almost 75 years of age and has suffered from, inter alia, heart problems since 1989. His recollection was tested in relation to a variety of matters that took place over a period that involved at least 50 years. In the circumstances, some confusion or lapse of memory could be expected. 31 Despite the confusion, the plaintiff impressed me as a witness who did his best to give truthful and reliable evidence. I am not persuaded that his evidence should not be accepted. 32 The principal grounds upon which the defendant relies in opposing this application are failure to satisfy the threshold requirements and what is said to be significant prejudice. 33 The plaintiff's case is that he can establish each and every one of the requirements of s60I(1)(a)(i), (ii) and (iii) of the Act. His affidavit and oral evidence was, that at the time he spoke to the secretary of the local RSL, he did not believe that he had suffered any injury or physical injury ("I knew that there was something that had changed in me" and "I had no visible signs of any harm"). 34 Whether or not he has satisfied subsection (i) may be a matter of debate. Unfortunately, in this case, that debate did not really take place. Fortunately, it is unnecessary to further pursue the question. 35 His evidence of unawareness of the connection between his personal injury and the defendant's act or omission was not challenged in cross-examination. On any view, he satisfies subsection (ii). 36 In these circumstances, it is unnecessary to consider whether or not he has satisfied the requirements of subsection (iii). However, I shall briefly refer to what has been argued. 37 The defendant relies on the decision of Commonwealth v Nelson [2001] NSWCA 443. This decision is one of a number of cases which establish that an applicant may be aware of the nature or extent of his personal injuries even though he did not know the "label" given to the condition from which he was suffering. In my view, such decisions can be distinguished from the present case. Whilst, at the relevant time, the plaintiff had an awareness that he had been affected by the collision, his belief was that he had not suffered injury and he was unaware that he may have been suffering from a psychiatric condition. The distinction is not merely one of description. Also, he was unaware that treatment had been available to ameliorate at least some of his symptoms. His awareness first came in or about January 2002. 38 Whilst there is no need to make this further finding, I am satisfied that (ii) has also been met. In my view, at the relevant time he was unaware of both the nature and extend of his condition. 39 As this application was made within the prescribed three year period (a matter that was not in dispute), I am satisfied that the plaintiff has satisfied the threshold requirements of s60I of the Act. 40 In support of its submissions on the question of prejudice, the defendant has relied on Commonwealth v Diston [2003] NSWCA 51. It is a decision which provides authority for the proposition that a finding that there is a real possibility of significant prejudice will be of decisive importance in determining whether it would be fair and just to order that the limitation period be extended. It was a case in which there were findings of significant gaps in employment records and that the plaintiff could not be relied upon to give a true account of events. 41 Again, I consider that the facts of that case are distinguishable from the circumstances of the present case. 42 I have already expressed my observations as to the plaintiff as a witness. I do not accept the contention that this is a case where the plaintiff cannot be relied on to give a true account of the relevant events. 43 The evidence does reveal conflict between what has been said by the plaintiff in his evidence and what appears by way of history in the report prepared by Mr Wilks. The plaintiff does not accept the recorded history allegedly given by him to Mr Wilks. The validity of what appears in the report prepared by Mr Wilks is untested. It appears from evidence given by the plaintiff that the interview may have been a stormy encounter. It seems to me that there has to be a real doubt as to the reliability of the history recorded by Mr Wilks. 44 The defendant has prepared a schedule of prejudice. It purports to cover a period running from the 1940s. Largely, the defendant's complaints concentrate on the inability of the plaintiff to identify persons involved in various aspects of his personal history (including superior officers, past employers and those involved in personal relationships with him). 45 He has been able to volunteer the name and whereabouts of one fellow serviceman ("Sonny Moon") who appears to be available and may be able to give relevant evidence. 46 Understandably, it is true that the plaintiff does not remember details of identity and whereabouts of many of those involved in his past history. Despite his lack of recollection, the defendant does have documents concerning, inter alia, his service history. There has been destruction of some records. It is said that there were limited records now available in respect of the period in which he was in the naval dockyard police. 47 The plaintiff has produced documentation relating to his medical treatment and information as to his employment. I take into account that it is said that there was a gap in his medical records during a period that he was seeing Dr Macbeth. 48 The defendant submits that there has been both actual and presumed prejudice. It relies on what has been said, inter alia, as to onus in Brisbane Regional Health Authority v Taylor (High Court of Australia, unreported, 2 October 1996). It has read a number of affidavits to support its case on prejudice (although the contents thereof were not the subject of attention in submissions otherwise than by way of use in the schedule). 49 It seems to me, that the approach taken by the defendant on the question of prejudice is unrealistic. 50 The defendant says that the prejudice is significant and that a fair trial can not now take place. I do not accept those submissions. 51 This question must also be considered in the context of the litigation before the Court. It must also be borne in mind that fairness is a matter of degree and that the concept of a fair trial is a relative one. It need not be ideal (McLean v Sydney Water Corporation [2001] NSWCA 122). 52 The collision itself is a well-investigated incident. The existence of potential claims has been known for a long period. Numerous claims have been brought before the Court by crew of either the Voyager or the Melbourne and this has become a well-litigated area. 53 It would seem that the plaintiff's claim itself may be a relatively modest one. One major component of the claim will be for general damages. Another such component may be in the area of loss of earning capacity. The evidence from the plaintiff did not throw up the suggestion that he saw himself as being unfit for employment by reason of his condition. It seems that the basis of the claim for such component will be largely lack of opportunity and loss of full retirement benefits from the Navy. 54 In the circumstances of this case, it seems to me that whilst there may be certain actual prejudice, as well as presumptive prejudice, I am not satisfied that a fair trial is no longer possible. 55 When regard is had to all of the relevant circumstances of this particular case, I am satisfied that the plaintiff has discharged the onus borne by him. 56 Accordingly, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case. 57 I extend the limitation period for the cause of action pleaded in the statement of claim up to and including 26 February 2002. 58 There has been some limited argument concerning the appropriate order to be made as to costs. It seems to me that justice is best served if the costs of the application are reserved at this stage. 59 The exhibits may be returned. **********

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