Beasley v Commonwealth of Australia [2001] NSWSC 998

Reported Decision : [2001] NSWSC 998 [2001] ACL Rep 255 NSW 49

New South Wales Supreme Court

CITATION : Beasley v Commonwealth of Australia [2001] NSWSC 998 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20786/97 HEARING DATE(S) : 1 November 2001 JUDGMENT DATE : 9 November 2001

Noel Francis Beasley (Plaintiff) PARTIES : Commonwealth of Australia (Defendant) JUDGMENT OF : Master Harrison

Mr P Blacket SC with Mr M Walsh (Plaintiff) COUNSEL : Mr R McIlwaine SC (Defendant)

James Taylor & Co Mrytleford Victoria SOLICITORS : (Plaintiff)

Australian Government Solicitor (Defendant) CATCHWORDS : Extension of time to commence proceedings - Section 60G and 60I Limitation Act - Voyager/Melbourne collision LEGISLATION CITED : Limitation Act Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (NSWCA, unreported 7 March 1999) Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389 CASES CITED : Szerdahely v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997) Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995) Holt v Wynter [2000] 49 NSWLR 148 McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001 Denning No 456 Pty Ltd v Brisbane Unit Development (1983) 155 CLR 129 DECISION : (1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 14 August 1997; (2) Costs are reserved.

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 9 NOVEMBER 2001 20786/97 - NOEL FRANCIS BEASLEY v COMMONWEALTH OF AUSTRALIA Judgment (Extension of time to commence proceedings, Ss 60G and 60I Limitation Act - Voyager/Melbourne collision ) 1 MASTER: By notice of motion filed 14 August 1997 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 23 October 2000. The defendant relied on the affidavit of Con Ktenas affirmed 7 June 2001. 2 Not surprisingly the plaintiff became visibly overcome with grief in the witness box when he was asked to recall the events surrounding the collision. Of all the Voyager cases I have heard, this is the most tragic. For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts. (1) The plaintiff was born on 9 February 1938 and is presently 63 years of age. He resides in Dubbo.

(2) On 4 May 1956 the plaintiff entered the Royal Australian Navy as a recruit at the age of 18 years. He was discharged when his initial engagement expired on 3 May 1962. On 6 November 1962 the plaintiff re-entered the Navy and obtained his Commission. At the time he entered the Navy (on both occasions) he was in good health both physically and psychologically. At the time of entering the Navy the plaintiff intended to make it his life career.

(3) On 10 February 1964 the plaintiff was a member of the crew of the aircraft carrier HMAS Melbourne which was involved in joint exercises with the escort destroyer HMAS Voyager. The plaintiff held the rank of Leading Cook (O).

(4) On 10 February 1964 the Voyager was sunk when she collided with the Melbourne on high seas some 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives.

(5) At the time of the collision the plaintiff had just completed duty in the wardroom galley and was getting some fresh air near the port aft ladder bay shortly before retiring for the night. Suddenly he felt a violent jolt and was thrown off balance. He heard a pipe "hands to collision station" and felt the Melbourne engines go full ahead to full astern. The plaintiff knew that they were in imminent danger and was in fear of his life and was in shock. He recalled hearing a further pipe "away all boats". The plaintiff's next recollection was that of seeing the for'ard part of the Voyager glide past him and slowly turn on her side and float upside down. He rushed to the starboard side of the quarter deck and could hear the screams, cries and calls for help from the crew of the Voyager in the water. The plaintiff was in fear of their lives as well as his own and seemed to be in a state of disbelief. He then rushed along with another Leading Steward to crew the 14 foot sailing dinghy, which was secured on the starboard side of the quarter deck, to attempt to rescue some of the survivors. The dinghy was a recreation craft designed for sheltered waters. The plaintiff was not sure whether the second boiler on the Voyager had exploded and he was extremely fearful of being lowered in the dinghy into that hazardous environment.

(6) They were lowered by the Petty Officer's Seaman in charge of the quarter deck. However, the block and its release gear had been damaged in the collision so when they were lowered to the position for release and given the order to release the chain gear, the for'ard release gear let go, but the after release gear failed to release. The craft instead of dropping into the water horizontally speared vertically into the water and the impact caused the craft to break in two. The plaintiff was caught under the centre cross seat in the aft section which turned upside down and immediately began to sink with the plaintiff caught under the cross bench. As the plaintiff was sinking he thought he was going die. He managed to disentangle himself from the sinking section of the sailing dinghy. The plaintiff's next recollection was struggling on the surface of the water gasping for air. He swam around and trod water for some time.

(7) The plaintiff scrambled onto a partially inflated upside down life raft which had come from the Melbourne. While he was on the raft he could hear men crying out for help. One voice seemed very close but it was very dark and he had difficulty seeing. The plaintiff could hear the voice crying out "for Christ's sake help me". He tried desperately to manoeuvre the raft towards the voice but he did not have a paddle and he was exhausted. The person looked as if he was treading water but appeared to be high out of the water, most of his chest was out of the water. The person was facing the raft, and as he came up against the raft, the plaintiff kept calling on him to turn around so he could pull him up onto the raft but he would not respond. Even though the person was covered in oil, the plaintiff recalled that his eyes were looking straight at him. He looked as if he was grinning and the plaintiff thought his big smile was one of relief and gratitude. The plaintiff put his hands around the person's waist to pull him onto the raft as he did the plaintiff discovered that the person's body was missing from below his rib cage. This sailor ME John Fenwick was a very close friend of the plaintiff. The shock of this terrifying ordeal still haunts the plaintiff to this day.

(8) Some time later they were rescued by a motor cutter from the Melbourne and returned to the Melbourne. The plaintiff was absolutely exhausted and in a state of shock. He rested and after a while showered and had the fuel oil washed from his eyes.

(9) As the plaintiff was Duty Leading Cook at 4.00 am he went to the Wardroom Galley and carried on with his normal duty. He recalled that they slowly made their way back to Sydney. The remainder of his time on the Melbourne was one of extreme fear, guilt, remorse and unbearable grief at the loss of three of his closest friends who were on the Voyager. These feelings continue to this day.

(10) When the plaintiff returned to Sydney he was given shore leave immediately and he went ashore and got extremely drunk. He received abuse from the public and this only exacerbated his guilt and depression. Prior to 1964 the plaintiff smoked approximately four cigarettes of an evening. His drinking was minimal and he only drank when on leave and attending social functions. He drinking was moderate. After the collision the plaintiff's smoking increased to 1½ packets per day. He was drinking three cans of beer at lunchtime and six to seven cans an evening plus spirits. By 1971 to 1978 his smoking has increased to two packets per day and he was drinking over that period until he just passed out.

(11) In about January 1965 until February 1967 the plaintiff was posted to HMAS Creswell. He was experiencing flashbacks and having nightmares about the dissected body of his friend. He was having serious mood changes. On some occasions he was having anxiety attacks. Over the years the plaintiff thought that these symptoms would go away but they have not. He thought they were just a normal reaction to his experiences and that over time they would lessen, but this has not occurred. The plaintiff found himself full of nervous energy and anxiety and decided to channel these emotions into work. He developed some techniques with limited success to avoid the stress and anxiety of his Melbourne experience. This involved focusing his mind and energies on his course and studies and avoiding all social life.

(12) In November 1968 the plaintiff was posted back to the Melbourne. This distressed him greatly. He was in fear of serving on that ship. He decided that he would try no to take any emotional baggage on board with him. Initially the plaintiff thought to some degree that he had managed to achieve this except that he had become hypervigilent with the fear of premonitions of experiencing another major catastrophe. The plaintiff was ridiculed about his premonition and became an instrument of amusement to his fellow crewman.

The USS Frank E Evans

(13) On 3 July 1969 at 3.15 am. The plaintiff was Duty Officer in HQ1 (Damage Control Headquarters) when the Melbourne hit the USS Frank E Evans. This caused the plaintiff to experience the same emotions, fear and terror as he had previously experience during the Melbourne/Voyager collision. The plaintiff has had to again experience the human wreckage, carnage and trauma. He went over to assist a Steward to throw a pair of trousers over the guard rails as they were a danger to aircraft only to discover that the trousers had human legs in them. The whole of his experience in the water and his encounter with the half body in the water came flooding back over him and he was shaking in shock. The Steward who had assisted him committed suicide. The experience with the USS Frank E Evans caused the plaintiff to completely re-experience the Melbourne/Voyager collision and re-enforced his determination to resign from the Navy. The plaintiff decided to forgo a career as a Commissioned Officer.

(14) In January 1970, the plaintiff was court marshalled in relation to an assault upon him. The charges against him were dismissed except for his failure to report the assault and failing to maintain order in the vicinity. In 1975 the plaintiff received a letter from the Navy saying that he had no period of ineffective service (Ex A) which the plaintiff took to mean that these findings were not on his record. The plaintiff described this period as a tremendous mental strain at the time but after it was finalised he became philosophical about it, particularly after he was further promoted.

(15) In March 1971 the plaintiff was issued with a notice to show cause of incompetence and unprofessionalism. He had lost all interest in the Navy and decided to resign. He resigned his Commission in June 1971 and returned to his parents place. Emotionally he felt he was a mess. He was taking the advice from the Navy doctor and tried not to think about his problem.

(16) Between 1971 and 1976 the plaintiff lived life as a recluse and seemed unable to function. He lived in a caravan, was desperate and was drunk most of the time. He had not social life. Between 1977 and 1984 the plaintiff gradually returned to a semblance of normality and carried out various jobs.

(17) Between May 1977 and May 1978 the plaintiff was a catering manager at Dubbo base hospital. Between June 1978 and April 1985 the plaintiff was a field officer for Commonwealth Accommodation and Catering Services Limited, North Sydney. Between May 1985 and December 1986 the plaintiff was unemployed. Between 1987 and July 1993 the plaintiff was operations manager at the School of Tourism and Hospitality Canberra Institute of Technology. From July 1993 to the present time the plaintiff has been unemployed.

(18) In 1997 the catalyst for the plaintiff to seek legal and medical advice occurred. The plaintiff applied for a standard pension from the Department of Veterans Affairs. This application was refused. (Apparently it is equivalent to the dole). Subsequently, the plaintiff sought advice from a Vietnam Veterans advisor as to whether he was entitled to a disability pension. The advisor told the plaintiff to get a referral from a local general practitioner, as he needed to see a psychiatrist urgently. He was advised that if he did not see the psychiatrist on his monthly visit to Dubbo, (to take place a few days later), it would be months before the plaintiff would receive help. To this end the plaintiff wrote a letter dated 30 July 1997 to Dr Adams (Ex B). The letter stated: "I have had to live with a psychiatric problem. Whilst in the early stages of my condition, I was assured by various doctors (all Navy) that I was alright and my anxiety, flashbacks, nightmares, mood changes would go away. They didn't and I have had to live with this condition with various degrees of severity and durations. I believed rightly or wrongly that my problem was caused by a personal innate weakness in my own psychological makeup, and that was my lot, and I had to live and cope with it. However this view changed about June last year (1996) when I heard that one of my ex ship mates was experiencing similar problems, and because of these problems ([post-traumatic stress disorder) had been traced back to his experience on H.M.A.S. Melbourne when it collided with H.M.A.S. Voyager."

(19) As a result of this letter Dr Adams referred the plaintiff to Dr Jim Taylor visiting psychiatrist to Dubbo. Dr Taylor went through all the plaintiff's history with him. It was Dr Taylor who first informed the plaintiff that he was suffering from a post traumatic disorder as a consequence of the collision. It was only when the plaintiff consulted Dr Taylor that he first became aware that he was suffering from such a psychiatric disorder known as post traumatic stress disorder. Until that time, the plaintiff did not know that he was suffering from a psychiatric illness. Until Dr Taylor explained to him the condition from which he was suffering the plaintiff did not known the nature and extent of that illness and to some extent still does not know.

(20) On 23 October 2000 the plaintiff read his statement of claim. Until he had read that statement of claim the plaintiff had no knowledge of any negligent acts or omissions by the defendant.

(21) On about 5 December 1997 the plaintiff made an application for a disability pension citing as a disability "PTS – see psychiatrist's report" and inserted 1960's for the date that he first became aware of the disability. The plaintiff's explanation was that this form was completed after Dr Taylor had told him that he was suffering PTSD which was caused by the collision. I accept this explanation. This was rejected and the plaintiff was appealed to the Administrative Appeals Tribunal. The appeal was dismissed. Early 2001 the plaintiff finally received a standard pension which is the equivalent to the dole.

(22) Dr Jim Taylor, a psychiatrist reported that the plaintiff satisfied that the DSMIV criteria for Post Traumatic stress disorder and major depression. It was Dr Taylor's view that there is a clear temporal relationship between the onset of the plaintiff's PTSD and his experiences on the Melbourne following the collision and that the plaintiff is one of the most serious cases that he has had to deal with in his 18 months of coming to Dubbo.

(23) On 14 August 1997 the notice of motion was filed.

The Law 3 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. 4 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 5 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 14 August 1994. 6 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 14 August 1994); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b). 7 The plaintiff relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD until November 1997. The plaintiff also submitted that he did not know of the connection between the personal injury and of the defendant's act or omissions until he read the statement of claim in 2000 when he swore his affidavit on 23 October 2000. 8 The defendant submitted that the plaintiff knew shortly after the collision that he suffered from the symptoms of PTSD. The defendant submitted that the plaintiff knew or ought to have become aware that he suffered a personal injury.

(i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered" 9 The test of knowledge posed by s 60I (1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a physical disease of gradual onset and not one of psychiatric illness. However s 60I(1)(b) refers to the application being made three years after the plaintiff ought to have become aware of all three matters listed in para (a)(i) to (iii). 10 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. 11 Prior to the expiration of the limitation period the plaintiff knew that after the collision he had become hypervigilant with premonitions of experiencing another catastrophe, increased his alcohol consumption and smoking. He knew that he was having mood changes and flashbacks and nightmares about the dismembered body of his friend. He started to isolate himself from other people. However, he thought that these symptoms he experienced were normal reactions to the trauma of the collision and that in time they would lessen. To avoid these symptoms he channelled his energies into study. 12 On 26 March 1970, the plaintiff consulted Dr Berry, a psychiatrist in the employment of the Navy. In his affidavit the plaintiff gives the reason for this consultation as anxiety. However in cross examination the plaintiff also said that he had a severe headache that he could not cope with. The plaintiff thought that this headache was unusual. Even if he saw the doctor for anxiety, in a letter written in 1997 the plaintiff stated that he was told by the Navy doctors that the symptoms would go away. 13 In 1971, after the limitation period had expired, the plaintiff left the Navy and his life took a dramatic turn for the worse. He lived in a caravan and was permanently drunk. This state of affairs continued up to 1976. Even though the plaintiff stated, with the benefit of hindsight, the symptoms he experienced could have been brought about by the collision and at some subconscious level he may have known this, it is my view that this does not amount to the requisite knowledge. It had to be more definite than subconscious awareness - see Denning No 456 Pty Ltd v Brisbane Unit Development (1983) 155 CLR 129. Even after being given some advice from the Vietnam Veterans advisor, the plaintiff wrote in 1997 that he believed that up until 1996 he believed that his problem was caused by a personal innate weakness in his own psychological makeup, and that was his lot, and he had to live and cope with it. 14 It was in November 1997 at the earliest that the plaintiff was informed for the first time that he suffered from a diagnosable illness, namely PTSD and that it was caused by the collision. If I am wrong, it was in 1996 that the plaintiff became aware that he had a diagnosable psychiatric condition, this falls within the time period stipulated in s 60I(1)(b). It is my view that an objective person with the background of the plaintiff ought not have become aware that he suffered from PTSD earlier than 1996. The plaintiff has passed through the s 60I(1)(a)(i) gateway.

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered" 15 I have referred to the state of the plaintiff's knowledge prior to and after the expiration of the limitation period under the heading s 60I(1)(a)(i). The plaintiff had much the same symptoms prior to the expiration of the limitation period as he did after the expiration of the limitation period. It is my view that the plaintiff was unaware that he had a diagnosable psychiatric illness until November 1997 at the earliest. It is more likely that he became aware that he had a diagnosable psychiatric injury namely PTSD when he was told of this by Dr Holwill a psychiatrist. 16 It is my view that the plaintiff did not know the nature or extent of his personal injury until November 1997 when he became aware that he had a diagnosable psychiatric illness. As with s 60I(1)(a)(i), I accept that an objective person with the background of the plaintiff ought not have become aware of the nature and extent of his personal injury until 1996 at the earliest. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 17 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. 18 The plaintiff submitted that it was not until he read the statement of claim in 2000, and specifically the particulars of negligence, that he was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant, its servants or agents. 19 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions are to be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 20 In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows: (a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so; (b) Failing to correctly carry out orders transmitted from Melbourne to Voyager; (c) Failing to correctly receive orders transmitted from Melbourne to Voyager; (d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne; (e) Failing to correctly transmit as orders, signals received from Melbourne; (f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne; (g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne; (h) Failing to alter the course or speed of Voyager in time to avoid a collision; (i) Failing to maintain a constant and efficient watch; (j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur; (k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne; (l) Failing to warn Melbourne that a collision was imminent; (m) Failing to give right of way to Melbourne; (n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition; (o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe; (p) Failing to maintain any or any adequate lookout. 21 Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. 22 The plaintiff gave evidence during cross examination that he knew the collision was either human or mechanical error. He knew that there had been a blunder. This general knowledge does not equate to knowledge of the specific particulars of negligence as set out in paragraph 5 (a) to (p) of the statement of claim. 23 I accept that it was not until 2000 at the earliest, when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant's acts or omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway. 24 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 25 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA, unreported 7 March 1999) and Commonwealth of Australia v McLean (1996-97) 14 NSWLR 389. 26 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (see Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995). The defendant did not make a submission that the plaintiff had no real case to advance. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. It is the plaintiff's contention that as a result of his being on board the Melbourne when the collision with the Voyager occurred he suffered PTSD. There is medical evidence to support this claim. 27 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case is that on application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Fairness is a matter of degree. The concept of a fair trial is a relative one to be fair; it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122, 20 April 2001. 28 The defendant has admitted the collision but denied it was negligent. As I have previously stated I accept that with the passing of 37 years, there is the real possibility that some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 29 The events surrounding the collision between the Melbourne and Voyager are well known and there is documentary evidence available - see Commonwealth of Australia v McLean. 30 The defendant submitted that it will not be able to obtain a fair trial because there is an entry dated 10 April 1970 in the Naval medical records referring to "anxiety" and this can no longer be investigated. Dr Berry recorded that the plaintiff's blood pressure was 170/120 and he was prescribed blood pressure medication. There was also an entry which recorded "very anxious" (Ex A). I accept that it is unlikely that Dr Berry would be available to give evidence about this consultation is he is still alive. The defendant's solicitor, Mr Ktenas, in his affidavit deposes that the plaintiff's service records have been destroyed. They may have been destroyed but prior to their destruction the plaintiff obtained and produced to the court service records and a bundle of Navy records relating to the plaintiff and there are detailed records of his medical condition throughout his Naval career. 31 Dr Adams, Canberra Institute of Technology, Commonwealth Accommodation and Catering Services Limited, Dubbo Base hospital and Dr Jim Taylor's medical records are available. The Macquarie Health Service (Dubbo Base hospital) has advised that it does not hold any records relating to the plaintiff's employment for the period May 1977 until May 1978. However the plaintiff has produced tax records from 1983 until 2000 (Ex C). 32 After I have taken into account all of these matters, I am satisfied that there will be a fair trial between the parties. The defendant does not suffer significant prejudice. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. Costs are reserved. 33 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 14 August 1997.

(2) Costs are reserved. **********

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