New South Wales Supreme Court CITATION : Cooke v The Commonwealth of Australia [1999] NSWSC 1233 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20781/1997 HEARING DATE(S) : 1 December 1999 JUDGMENT DATE : 15 December 1999 Derek John Cooke PARTIES : v The Commonwealth of Australia JUDGMENT OF : Master Malpass COUNSEL : Mr Michael Joseph SC Mr G Rundle SOLICITORS : James Taylor & Co Australian Government Solicitor CATCHWORDS : Extension of limitation period; survivor of collision between HMAS Voyager and HMAS Melbourne; psychiatric disorder; no question of principle. ACTS CITED : Limitation Act 1969, s 60G, s 60I. Brisbane South Regional Health Authority v CASES CITED : Taylor (1996) 70 ALJR 866. Darcy v The Commonwealth of Australia, 25 July 1997. DECISION : See paragraph 18. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS WEDNESDAY 15 DECEMBER 1999 20781/1997 DEREK JOHN COOKE v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This proceeding is one of the many arising out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. The process was filed on 14 August 1997. A Notice of Motion was filed on the same day. It sought an extension of the relevant limitation period. 2 The Notice of Motion was heard on 1 December 1999. The plaintiff has sworn two affidavits. Certain exhibits were tendered (including an outpatient record prepared by Dr Cullen on 8 August 1968, a report from Dr Wright dated 24 October 1996, and a report from Dr McNamara dated 10 August 1998). The plaintiff was cross-examined. The defendant did not adduce any evidence. 3 The plaintiff was born on 26 October 1941. He became a member of the Royal Australian Navy on 26 March 1959. At the time of the collision, he was a member of the crew of HMAS Melbourne. 4 The affidavit material sets out his experiences following the collision together with details of personal history since that time. It is not necessary to reproduce the detail of the material in this judgment. It suffices to merely mention some aspects thereof. 5 Since the collision, the plaintiff has been aware that he has had a number of problems (including fear of high pressure steam, periods of irritability and depression and a dislike of enclosed spaces). He was aware of a connection between these problems and the collision. 6 He was posted to the HMAS Vendetta. There was a near collision with a US ship. He was sent by his divisional officer to see Dr Cullen (a consultant psychiatrist at the British Military Hospital in Singapore). 7 Dr Cullen was of the view that the plaintiff showed no positive signs of active psychiatric illness and that he showed no signs of psychiatric illness sufficient to justify any immediate medical intervention. The plaintiff says that he was informed by the psychiatrist that he (the psychiatrist) did not believe that there was anything wrong with him and that he (the plaintiff) accepted what he had been told by the psychiatrist. 8 Following his return to Australia, he was drafted to a shore base at HMAS Creswell in Jervis Bay. Later, he was drafted to the HMAS Melbourne. He refused to go to that ship. Thereafter, the draft was changed to HMAS Stalwart. When he had completed his service, he left the Navy. 9 In 1996, friends implored him to seek medical advice. He saw an advocate of the Department of Veterans Affairs. He made a claim for a service pension. The Department referred him to Dr Wright. The claim for the pension related to his service on HMAS Vendetta. Whilst his application for the pension was unsuccessful, Dr Wright made him aware of a diagnosis of suffering from post traumatic stress disorder and substance abuse disorder. 10 The plaintiff was referred by his present solicitors to his treating psychiatrist (Dr McNamara) for a report. In his report, Dr McNamara makes a diagnosis of chronic post traumatic stress disorder together with secondary alcohol abuse which he relates to the collision. The plaintiff continues to be treated by Dr McNamara. 11 Relief is sought pursuant to s 60G of the Limitation Act 1969. Section 60I prohibits the making of an order under s 60G unless the court is satisfied of matters set forth in paragraphs (a) and (b) of subsection (1) thereof. These are threshold requirements to the making of an order. When the threshold requirements have been satisfied, there is a discretionary power to grant relief. 12 The defendant has put submissions in opposition to the application (and I should add without great enthusiasm). It is said that by 1968 the plaintiff was aware that personal injury had been suffered, of the nature and extent of the personal injury and of the connection between it and the defendant's act or omission. Further, as a discretionary consideration, it says that there has been prejudice by reason of delay. 13 In my view, the threshold requirements have been satisfied. Whether or not he was unaware that personal injury had been suffered at the expiration of the relevant limitation period, I am satisfied that he was unaware of the nature and the extent of the personal injury. The distinction between knowing of problems and an awareness that the problems amounted to a psychiatric illness has been drawn in many cases (see inter alia Darcy v The Commonwealth of Australia , 25 July 1997). I do not regard this as a case where the plaintiff was merely unaware of the precise description of the condition from which he was suffering. In the light of this finding, it is unnecessary to pursue the question of whether or not he was unaware of the connection between the personal injury and the defendant's act or omission. However, for completeness, I observe that I accept the plaintiff's affidavit evidence on this matter. Accordingly, I am of the view that this threshold requirement has also been satisfied. 14 I now turn to the question of prejudice. There is no dispute that there has been substantial delay. There is no evidence of actual prejudice. The only prejudice that can be asserted is that of the presumptive kind arising from the delay itself (see Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866). It is not suggested that the defendant has lost any of its relevant records. It had the plaintiff examined by a psychiatrist in 1968. He was once again examined by a psychiatrist on their behalf in 1996. He did not see his own psychiatrist until February 1997. 15 There is presumptive prejudice. However, despite the presumptive prejudice, I am of the view that a fair trial of the relevant issues can still take place. 16 The plaintiff bears the onus of satisfying the court that he has an entitlement to relief. In the relevant circumstances of this case, I am satisfied that the onus has been discharged. 17 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. 18 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 14 August 1997. I reserve the question of costs. The exhibits may be returned. ********** Last Modified: 12/20/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.