Levis v The Commonwealth of Australia [2001] NSWSC 725

New South Wales Supreme Court

CITATION : Levis v The Commonwealth of Australia [2001] NSWSC 725 CURRENT JURISDICTION: Common Law Divison FILE NUMBER(S) : SC 21238 of 1995 HEARING DATE(S) : 17 August 2001 JUDGMENT DATE : 27 August 2001

Ronald Robert Levis (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M Joseph SC/Mr W Walsh (Plaintiff) Mr P Jones (Defendant) SOLICITORS : James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period - no question of principle. LEGISLATION CITED : Limitation Act 1969, s 60I, s 60I (1) (a), s 60I (1) (a) (ii), s 60I (1) (b), s 60G. McLean v Sydney Water Corporation [2001] CASES CITED : NSWCA 122. Stankowski v Commonwealth of Australia [1999] NSWSC 1258. DECISION : See Paragraph 21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

MONDAY 27 AUGUST 2001

21238 of 1995 RONALD ROBERT LEVIS v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 This is yet another of the many proceedings brought before this Court which arise out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. 2 The Statement of Claim was filed on 29 November 1995. On 6 December 1995, the plaintiff filed a Notice of Motion. It sought an extension of the relevant limitation period pursuant to s 60G of the Limitation Act 1969 (the Act). A supporting affidavit was sworn on 23 October 2000. 3 The hearing of the Notice of Motion took place on 17 August 2001. The affidavit of the plaintiff was read. The exhibits to that affidavit (including a copy of a report from Professor Raphael dated 11 January 1996) were tendered. There was cross-examination of the plaintiff. The defendant relied on affidavit material sworn by Mr Ktenas. He is a principal solicitor in the employ of the Australian Government Solicitor. There was a tender of other documentation by the plaintiff (which consisted of inter alia records and other material provided by the defendant together with other medical and financial records). 4 The plaintiff was born on 12 March 1929. He joined the Royal Australian Navy on 5 September 1952. He was discharged on 5 September 1964. He then held the rank of NA 1. At the time of the collision, he was a member of the crew of HMAS Melbourne. Paragraphs 6 - 8 of his affidavit provide a version of events which he says happened in and about the collision. Two friends were on the HMAS Voyager at the time and perished as a result of the collision. The balance of the affidavit contains a narrative of personal events in his life subsequent to the collision together with a statement of problems experienced since then. 5 I shall briefly refer to some of the matters that appear in the personal history. This reference is not intended to be exhaustive. 6 Following the collision, he began to drink very heavily. He was unable to communicate with people. He was angry, irritable, and anxious. He was frightened of crowds. He has experienced nightmares, flash-backs and feels aggressive and angry. He has also experienced depression. His problems do not appear to have had much impact on his earning capacity. He remained with the one employer from 1975 to 1991 (when he retired). 7 In about mid April 1994, he was left alone when his wife went on a holiday. He went and saw his general practitioner (Dr Vince). He was told that he probably had an anxiety disorder. He was referred to a psychiatrist (Dr Stone). He gave a history to Dr Stone (including his experience in relation to the collision). He says that he was not told what the cause of his anxiety and depression was. 8 In about September 1995, a friend suggested that he should contact Mr Taylor (the plaintiff's present solicitor). He did so and Mr Taylor arranged for him to see Professor Raphael. He saw Professor Raphael in January 1996. He says that it was not until then that he learned he was suffering from a psychiatric disorder known as post traumatic stress disorder (PTSD) and that it had been caused by the collision. He continues to receive treatment. 9 The plaintiff says that he has read his Statement of Claim. He further says that until he had read it, he had no knowledge of any negligent acts or omissions by the defendant. Further, he had not known that those negligent acts or omissions had caused his psychiatric damage. This evidence was the subject of cross-examination. 10 I now turn to the relevant statutory requirements. Section 60I prohibits the making of an order under s 60G 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. 11 When these matters have been satisfied, the court may grant relief if it also finds that it is just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to relief. 12 Although he has been cross-examined in respect of a variety of matters, it is not said that the plaintiff is a witness lacking in credibility or reliability. 13 I now turn to the bases upon which the defendant resists the application. Firstly, it is said that none of the threshold requirements appearing in s 60I (1) (a) have been met. Secondly, the defendant looks to actual prejudice and says that a fair trial is now unlikely. 14 In relation to the submission concerning the threshold requirements, it suffices to say that I am satisfied that the requirement in (a) (ii) has been met. I am satisfied that the plaintiff was unaware that he had a psychiatric condition prior to seeing Professor Raphael (see inter alia Stankowski v Commonwealth of Australia [1999] NSWSC 1258). In these circumstances, it is not necessary to consider the submissions that have been made in respect of the other statutory requirements. 15 I now turn to the question of prejudice. The court has before it material to be found in the affidavit sworn by Mr Ktenas together with the material contained in the documentation tendered by the plaintiff. This material has not excited any express submission in relation to actual prejudice. The express submission that was made asserted actual prejudice concerning the plaintiff's claim that he has suffered from a psychiatric condition. It is claimed that there is a vacuum of about 27 years. It emerged from the evidence that the claim of the plaintiff may indeed not be a large one and that the thrust of any entitlement to damages may be in the area of general damages and treatment costs. 16 It seems that medical records since 1991 are available. It may be that little will be available prior thereto. During cross-examination, the plaintiff did give the names of two doctors and expressed the view their medical records should still be available. 17 However, the evidence is that the plaintiff did not seek treatment for the problems which have been diagnosed by Professor Raphael as relating to a psychiatric condition prior to 1994. This evidence was not challenged during cross-examination. In the circumstances, it would seem unlikely that the pre-1991 medical material would assist the defendant. In the circumstances, I am not satisfied that any significant prejudice arises from unavailability of medical records during the period between the collision and 1991. 18 Apart from actual prejudice, there is also what has been described as either presumptive or general prejudice which arises from delay. I take that into account. 19 There is now abundant authority to the effect that in deciding whether or not it is just and reasonable to make an order the court should look to the question of whether a fair trial can still be had. The authorities emphasise that fairness is a matter of degree and that the concept of a fair trial is a relative one. It does not mean a perfect trial (see inter alia McLean v Sydney Water Corporation [2001] NSWCA 122). In the circumstances of this case I am not satisfied that a fair trial is now unlikely. 20 Further, in the circumstances of this case, I am satisfied that the plaintiff has discharged the onus of proof. 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. 21 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 29 November 1995. I reserve the question of costs. The exhibits may be returned. **********