AUSSEMS v COMMONWEALTH OF AUSTRALIA [2001] NSWSC 615

New South Wales Supreme Court

CITATION : AUSSEMS v COMMONWEALTH OF AUSTRALIA [2001] NSWSC 615 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20843/96 HEARING DATE(S) : 12 July 2001 JUDGMENT DATE : 12 July 2001

Gillis Pierre Francois Aussems (Plaintiff/Respondent) PARTIES : v

Commonwealth of Australia (Defendant/Appellant) JUDGMENT OF : Adams J at 1

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

COUNSEL : Mr C Branson QC with Mr I McLachlan (Appellant/Defendant) Mr P Blackett SC (Respondent/Plaintiff) Mr C Ktenas Australian Government Solicitor (Appellant/Defendant) SOLICITORS : Mr James Taylor Myrtleford, Victoria (Respondent/Plaintiff) LEGISLATION CITED : Limitation Act 1969 House v The King (1936) 55 CLR CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Holt v Wynter (2000) 49 NSWLR 128 DECISION : Appeal dismissed with costs.

Ex tempore - Revised

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J

THURSDAY 12 JULY 2001 20843/96 GILLIS PIERRE FRANCOIS AUSSEMS V COMMONWEALTH OF AUSTRALIA JUDGMENT

1 HIS HONOUR: This is an appeal from the decision of Master Harrison to grant an extension of time within which the plaintiff can commence proceedings against the Commonwealth of Australia. The plaintiff seeks damages for injury resulting from the sinking of HMAS Voyager by HMAS Melbourne in February 1964. The statement of claim was filed on 8 August 1996. 2 The essence of the plaintiff's case is that, as a result of the trauma suffered by him, arising at the time or shortly after the collision, he developed psychiatric problems diagnosed only recently as post traumatic stress disorder, a term adopted for the first time in DSM3 published in 1980 and later used with more elaborate indications in DSM4 published in 1994. The defendant resisted the application for extension of time on a number of bases referable to sections 60G and 60I of the Limitation Act 1969 but not all of these are presently in issue. 3 The matter agitated before me is the contention that there was no proper basis for the conclusion of the Master that it is "just and reasonable" that an order be made that the limitation period be extended, having been satisfied that the defendant would not suffer "significant prejudice" and could obtain a fair trial. The appellant does not seek to demonstrate any explicit error of law committed by the Master but, rather, in line with the reasoning in House v The King (1936) 55 CLR 499, submits that her decision is so "unreasonable or plainly unjust" that some implicit error must have occurred. 4 It is clear that the lengthy delay between the commencement of proceedings and the occurrence allegedly giving rise to the plaintiff's disability creates a presumption, realistically based, that the defendant will be prejudiced in the conduct of its case. The learned Master concluded that "the events surrounding the collision between the Melbourne and the Voyager are well-known ..." and considered that extension of the limitation period should not be refused because of the delay in this respect. No complaint about that finding is made in this appeal. 5 It is not necessary to set out in detail the history given by the plaintiff in his affidavit in support of the notice of motion heard by the Master. Although he was cross-examined, I think it fair to say no serious attempt was made to controvert any part of it. It is sufficient for present purposes to note that, in May 1969 the plaintiff was discharged from the Navy as permanently unfit because he suffered from nervousness, depression and a back condition. The last condition was exaggerated by him, as accepted by the Master, because he was so desperate to leave the Navy, he said, because of his anxiety. The plaintiff claims that the psychiatric condition resulting from his involvement in the collision adversely affected his ability to maintain remunerative employment thereafter. 6 A brief history of the plaintiff's alleged social and personal difficulties is set out in the Master's judgment and I do not think it necessary to repeat it here. However, it is clear that his claim involves an allegation that he was, to a greater or lesser extent, suffering from the effects of the trauma caused by the defendant's negligence over the thirty-six years or so that have ensued since the collision. 7 The two areas of prejudice focused on by the appellant before the Master concerned the plaintiff's employment and medical history. The appellant submits to me that it is obviously very difficult for it now to investigate an employment history that goes back in excess of thirty years. However, as this matter was litigated before the Master the appellant limited its submissions to the contention that there was actual and significant prejudice arising from the lack of employment records. There was placed before the Master a report from the appellant's investigator which showed that some preliminary investigations of the plaintiff's employment situation had been conducted. It seems that the appellant accepted that this did not provide an adequate basis for contending that there was actual prejudice of a significant kind because of the unavailability of witnesses, as distinct from records. The investigation was based upon the plaintiff's affidavit that was filed in support of the notice of motion. It omitted a number of important details. However, either shortly before or at the time of the hearing the plaintiff provided quite detailed information of a documentary kind relating to his employment, which the defendant's investigator, for obvious reasons, had not been able to consider. Nevertheless, no application was made by the defendant for an adjournment arising out of this late provision of information and in the result, as I have mentioned, the issue of employment was argued upon the basis that the records provided were insufficient to overcome the prejudice occasioned by delay. 8 Before me, Mr Branson QC for the appellant did not seek to argue that the absence of the records of employment was a significant prejudice but, rather, pointed to the presumptive prejudice arising from the difficulties that would be faced by the defendant in investigating the employment disclosed by those records. Having regard to the manner in which the matter was litigated below, I do not consider that it is now open for the appellant to agitate the issue in this way. Even if I am wrong about this, however, I do not consider that the appellant has satisfied the evidentiary burden of showing significant prejudice arising from the lack of ability to test the employment history of the respondent. It is obvious that the appellant has made no serious attempt to ascertain whether and, if so, to what extent, such evidence may be available upon an adequate investigation and I do not consider that it would be appropriate for me to suppose that such an investigation, if properly carried out, would demonstrate significant prejudice. 9 I should mention that, in some significant respects, relatively extensive employment records would appear to be available to the defendant. This fact, together with obvious lines of inquiry, is exposed in the investigator's report tendered by the appellant in the proceedings before the Master. 10 I now come to the medical issues. In order to establish causation the plaintiff will need to prove that he did suffer from disabilities of the material kind, that these affected his capacity for work and otherwise had adverse effects upon his life and that they can be related to the trauma, if any, that he suffered as a result of the Melbourne/Voyager collision. Extensive medical records are, as the Master pointed out, available. Again, as I understand, the matter was litigated below as to the adequacy of those records by way, as it were, of replacement of the doctors' personal attendance. 11 A lengthy list of doctors consulted from time to time by the plaintiff from 1984 to date was tendered but no attempt was made by the appellant to investigate whether any of those doctors were psychiatrists. Nor does it appear that a significant number of them cannot now be contacted. The reality is that only three doctors are important. This is not to say that it is possible that other doctors may have been consulted by the plaintiff in relation to his psychiatric condition but, rather, that on the evidence it is reasonable to discount that possibility as significant. 12 The first doctor was the Naval officer consulted by the respondent in 1969, namely, Dr McGeorge, a consultant psychiatrist. The Naval medical records show that he saw the respondent in April of 1969. The notes of the consultation are very brief and would not now be regarded as appropriately extensive in light of Dr McGeorge's conclusion that the respondent should be discharged "for anxiety depression". It seems to me to be a very serious matter indeed to recommend discharge for medical unfitness, without taking a detailed history, setting out adequately the basis for the diagnosis. The brief account in the clinical notes, however, does not advert to the possibility that the respondent's condition was connected with, let alone, might have resulted from, his experiences whilst on board the Melbourne at the time of its collision with Voyager. If the respondent had given such a history it would be very surprising if Dr McGeorge did not make a note of it. Dr McGeorge was employed by the defendant and it is difficult to avoid the commonsense observation that it would be hard to visit against the respondent the inappropriate inadequacy of records prepared by a responsible servant of the appellant charged with the responsibility, not only for the appellant but also the plaintiff. 13 The second doctor seen by the respondent in connection with his anxiety was his general practitioner, Dr McNeil. The respondent was Dr McNeil's patient from January 1967 to June 1984, although it is possible that from time to time during this period he also consulted other doctors. There are two references in the doctor's notes, which have been produced, to anxiety. The first occurs on 2 February 1969 and simply notes "anxiety state et cetera" whilst the second on 28 March 1973 simply notes "Ref Cunningham", a reference to Dr Mark Cunningham who was a specialist psychiatrist. As it happens Dr Cunningham is still alive but, regrettably, did not see the respondent who was instead seen by an, as yet, unidentified locum-tenens. Whether that locum-tenens is still alive and can be located is unknown but it may fairly be said that it is unlikely that he or she would recall the respondent after all these years. Dr Cunningham, however, reported to Dr McNeil on 30 April 1973 on the basis of the information provided to him by his locum. The conclusion of the report is that the symptoms of the respondent's "mild neurotic depression" were "relatively insignificant" and no treatment was ordered. There is no mention of long-standing depression and/or anxiety, let alone any history of mental or personal problems deriving from or following the Melbourne/Voyager collision. 14 It was submitted to me by Mr Branson QC that the absence of these two witnesses creates actual prejudice for the appellant. Whilst it is possible as a forensic exercise to posit such prejudice, in the real world of litigation the evidence of the doctors' reports supports the appellant rather than the plaintiff and it would be difficult to see why a defendant would seek to do more than tender those reports rather than go fishing for evidence which might qualify them. Accordingly, I reject the submission that the absence of Doctors McGeorge and McNeil causes actual present prejudice to the defendant. I have not lost sight of the fact that, if this litigation had been commenced within the limitation period, the doctors might be able to give more information than their reports reveal but it is clear that even if they were still available it would be most unlikely that this could occur. 15 The third doctor whose absence was pressed as demonstrating actual prejudice is Dr Wu, a psychiatrist. Dr Wu was consulted by the respondent in February 1996 at the instance of the respondent's solicitors. He administered psychometric tests, took an extensive history and concluded, amongst other things, that the plaintiff suffers from post traumatic stress disorder attributable to his involvement in the Melbourne/Voyager collision. I understand, though this is perhaps not important, that Dr Wu was alive when the statement of claim was filed but that he died shortly before the hearing before the master. 16 The defendant submits that its inability to cross-examine Dr Wu creates actual prejudice for it and, indeed, it was the absence of this witness which Mr Branson QC put at the forefront of his argument before me. However, I am unpersuaded that this is so. If the history given to Dr Wu be right and if it is adequate to justify his opinion, then no doubt the report will be tendered by the plaintiff. 17 The real question in this case will not be so much whether, given the history, Dr Wu's opinion is right but whether the history is correct. If the plaintiff fails to establish the reliability of the history given to the doctor, the doctor's opinion is worth very little. The presence or absence of the doctor will not establish the history or otherwise. It is true that the doctor might be asked whether, if the history were different in this or that respect, his opinion would be different but any doctor can be asked that question. I do not consider that the absence of Dr Wu creates any real prejudice, whether presumptive or actual, for the defendant. 18 In dealing with the alleged prejudice by reference to different aspects of the case which will ultimately be litigated I have not lost sight of the fact that in the end one must consider the effect of delay as a whole. So considered, I consider that the defendant has not established any significant prejudice in the conduct of the trial. Still less do I consider that the Master's conclusions were so "unreasonable or plainly unjust" as to demonstrate implicit error. The Master adopted and applied the principles of law applicable to the issues posed by the application for extension of time, in particular, as expressed (though perhaps not with unanimity) in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 as explained and applied in Holt v Wynter (2000) 49 NSWLR 128, especially by Sheller J at 147. In applying the principles there enunciated to the facts in this case I am unable to detect any error on the part of the Master. I should like to repeat, however, the point made by Priestly JA that "for a trial to be fair it need not be perfect or ideal": 49 NSWLR at 142. As his Honour pointed out in the context of a criminal trial the prejudice that might be occasioned to the defence by delay will usually be dealt with satisfactorily by appropriate directions and rulings given and made by the trial Judge. In considering the case to be made by the plaintiff in this litigation it will be necessary for the trial Judge, if I may say so respectfully, to consider the significance for the persuasiveness of the plaintiff's case that relevant supporting material is not adduced upon the assumption, of course, that its existence is established and bearing in mind the circumstances of its omission. No trial judge, in my view, would leave out of account in considering whether a plaintiff has established a case that it is brought after a very lengthy delay, which will always be a material consideration. 19 As I have said, however, so far as the circumstances here are established I consider that the Master did not err or, at least, the appellant has not established that she erred, in concluding that the defendant would not suffer such significant prejudice as would prevent a fair trial. Accordingly, the appeal is dismissed with costs. ***********