Fullarton v Commonwealth of Australia [2005] NSWSC 444

New South Wales Supreme Court

CITATION : Fullarton v Commonwealth of Australia [2005] NSWSC 444

HEARING DATE(S) : 4/5/05, 5/5/05

JUDGMENT DATE : 2 June 2005

JUDGMENT OF : Bell J at 1

DECISION : Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed, being 22 October 2001

Limitation Act 1969 Limitation of Actions Act 1974 (Qld) LEGISLATION CITED : Safety, Rehabilitation & Compensation Act 1988 Supreme Court Rules 1970

Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Commonwealth of Australia v McLean (1997) 41 NSWLR 389 CASES CITED : CRA Ltd v Martignago (1995) 39 NSWLR 13 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128

Ross Adriane Fullarton (Plaintiff) PARTIES : Commonwealth of Australia (Defendant)

FILE NUMBER(S) : SC 20843/01

J.L. Sharpe (Plaintiff) COUNSEL : S. A. Woods (Defendant)

Hollows Solicitors (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Thursday 2 June 2005

20843/01 Ross Adriane Fullarton v Commonwealth of Australia

JUDGMENT 1 BELL J: The applicant was a member of the crew of HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager, cutting the destroyer in two and resulting in the loss of eighty-two lives. 2 On 22 October 2001 the applicant filed a statement of claim pleading that the collision was caused by the negligence of the officers and/or crew of the Voyager and/or of the officers and crew of the Melbourne and that as a result of the collision he was injured and suffered loss and damage. On the same day the applicant also filed a notice of motion claiming an order pursuant to s 60G of the Limitation Act 1969 (NSW) that the limitation period for the cause of action be extended. 3 The respondent, the Commonwealth of Australia (the Commonwealth), opposes the making of an order extending the limitation period. 4 The applicant was born on 19 December 1946. The limitation period for the cause of action pleaded expired on 20 December 1970. 5 The Commonwealth, by its defence filed on 18 October 2002, admits that the applicant was a member of the Royal Australian Navy (the RAN) serving on board HMAS Melbourne at the time of the collision and the allegations of fact contained in the particulars of negligence of the officers of HMAS Voyager in subparagraphs (a) to (n) together with the particulars of negligence of the officers of HMAS Melbourne in subparagraphs (a) to (i). Should the extension of time be granted, the issues at the trial will be proof of injury, causation and loss and damage. 6 The applicant pleads the following by way of particulars of injury: "(a) Severe shock; (b) Severe anxiety and depression; (c) Panic attacks; (d) Obesity; (e) Difficulties with sleeping; (f) Irritability, fatigue and headaches; (g) Night sweats; (h) Difficulty in concentrating, making decisions and solving problems; (i) Mood swings, frustration and isolation; (j) Post-traumatic stress disorder symptoms; (k) Emotional detachment, insecurity and lack of confidence; (l) Attempts to medicate himself by heavy use of alcohol with consequential impairment of body function; (m) Hypertension; (n) Lipomatosis of kidney; (o) Dysthymic disorder; (p) Irritable bowel syndrome; (q) Cigarette addiction to 1988 with consequential impairment of body function; (r) Generalised anxiety disorder; (s) Adjustment Disorder". 7 Section 60G(2) of the Limitation Act provides: "If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 8 The onus is upon the applicant to demonstrate that it is just and reasonable for the court to grant the extension that is sought. 9 Section 60I(1) of the Limitation Act provides: "A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the applicant: (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 respondent'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 3 years after the applicant became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii)." 10 It is the applicant's case that but for the collision and the psychiatric injury that he suffered as the result of it, he would have remained in the RAN. He asserts that following his discharge from the RAN he moved from one job to another, his capacity to earn income having been significantly impaired by his psychiatric injury. He pleads that had the collision not occurred he would have been likely to have achieved the rank of commissioned officer and to have remained in the RAN until retirement at or about the age of fifty five years. On his retirement he would have received Defence Force retirement benefit entitlements. 11 The applicant swore four affidavits in support of his motion. He was cross-examined on them at some length. He was born in Queensland. He was one of six children and appears to have had a relatively uneventful childhood. His father had served in the Australian Army as a truck driver, attaining the rank of Sergeant. The father's service included tours of duty in Egypt, Palestine and New Guinea. The applicant gave a history to Robert Wilks, a clinical psychologist, that his father had been a "pretty consistent" beer drinker and that he had been violent when drunk. When sober he had been "excellent". His mother was a "good woman" who explained her husband's difficulties as "the effects of the war". The applicant reported a good relationship with his siblings. 12 The applicant attended the Corinda High School where he enjoyed woodwork, metalwork, trade drawing, physics and chemistry. 13 The applicant joined the RAN in January 1963 at the age of sixteen years. Prior to entry he was assessed as medically and psychologically fit by the RAN. A copy of the psychological assessment dated 31 July 1962 is annexed to his affidavit sworn on 19 October 2004. 14 The applicant's initial training was carried out at HMAS Leeuwin over a period of twelve months. During this time he went to sea for a short period, working in the engine room of HMAS Dimantina. He says that this experience led him to contemplate an engineering career in the RAN. 15 The applicant's Ratings Record of Service card is also annexed to the 19 October 2004 affidavit. He passed his ET 1 examination at HMAS Leeuwin on 22 February 1963. On 29 November 1963 he completed his Recruit School training attaining a distinguished pass. 16 The applicant joined the crew of HMAS Melbourne nine days before the collision. At the time of the collision, the applicant says that he was on a ladder leading to the boat deck. He felt as jolt as though the ship were hitting a wave or sandbank. He proceeded up the ladder and recalled seeing Leading Seamen Summerton, looking grey, who told him, "We've hit the Voyager". The applicant went to the rail on the port side of the ship and he saw flickers of red flame and smelt a strong smell of fuel oil. He went up to the flight deck where he saw the stern section of HMAS Voyager jammed alongside HMAS Melbourne. Steam and vapour was in the air. He recalled a petty officer telling the men not to panic. He was instructed to get blankets and stretchers. He assisted in erecting stretchers in the hangar and in distributing boxes of chocolates to the survivors as they came on board. He saw that some were naked, some were wearing pyjamas, and all were covered in oil. They seemed dazed. 17 The applicant says that he heard that damage control parties had shored up the damage to the HMAS Melbourne's bow. He did not express any fear for his own life and said that he had felt relatively collected on the night. He had not been particularly frightened. He stood on the port side of the boat deck watching the stern section of the HMAS Voyager. He observed her propellers rising higher and higher and he saw her sink. He remembered this graphically. He saw empty life rafts in the water, but he did not see anyone swimming. He said that his main thought on the night had been that "heads would roll over this, the loss of a destroyer" 18 The applicant said that later he had started to feel guilty about the collision: so many people had died and yet he had survived. Afterwards he continued to think about the collision and found it difficult to stop talking about it. He experienced a combination of feeling low and angry. The crew had been told not to discuss the collision with civilians on shore. He had a vivid recall of things said by members of the public and reported in the press at the time, that the HMAS Melbourne was a "killer ship". The reception given to the crew of HMAS Melbourne had been so bad that they took off their hatbands when going ashore to avoid harassment. 19 The applicant said that at the time of the collision he did not drink alcohol. After the collision he says he started drinking with his shipmates. His drinking increased with the weeks that passed. He recalled being very angry at being accused of being negligent and of causing the deaths of the men on the Voyager. 20 Nine days after the collision the applicant was involved in a fight. A document described as "Daily Medical Record", dated 20 February 1964, noted that the applicant had presented with a right black eye and recorded, by way of history, "fight after pubs closed last night". Prior to this the applicant had not exhibited disciplinary problems in the RAN. 21 On 3 March 1964 the applicant was charged with a disciplinary offence arising out of a disturbance in his Mess. 22 On 12 November 1964 the applicant left the crew of HMAS Melbourne and went to HMAS Cerberus to undergo trade training. He passed his course and was recommended to undertake further training. At this time he says that he was drinking daily after classes, most nights to the point of inebriation. 23 On 22 April 1965 the applicant left Australia to join the HMAS Perth, which was in the United States. Around this time he said that he received a punishment warrant for drinking. On 23 October 1965 a medical record stated that the applicant was suffering from "post acute alcoholism". The physical examination carried out on that day by the medical officer recorded that the applicant was in good general health. He had given a history that he had had a long night on tequila the previous night. A number of other unremarkable physical observations were recorded by the doctor. 24 The applicant was charged with further disciplinary offences on 31 March, 2 April (absent without leave) and 14 April 1966 (failing to hoist the Australian flag). 25 The applicant's final posting in the RAN was to HMAS Albatross. He worked in the Motor Transport Compound. In September 1967 he was dealt with for an assault. In November 1967 he was convicted of a further naval disciplinary offence arising out of an incident when it appears that he broke into the galley looking for food and was later found asleep under a bench. The medical officer reported that the applicant had consumed an excessive amount of alcohol. 26 On 19 February 1968 the applicant was convicted of stealing a motor vehicle. The theft occurred the previous November when the applicant attended a wedding. It was his account that he had been drunk and that he drove off in a car belonging to one of the other guests. 27 A Minute Paper recording the recommendation for the applicant's discharge from the RAN also noted an offence committed by him in December 1967. This was an incident in which he and other young seamen drank an excessive amount of alcohol and sat on a roof, waiting for Santa. 28 The applicant was discharged from the Navy on 1 April 1968. His commanding officer recommended that he be discharged 'services no longer required'. It was noted that the applicant "has a good professional record and is a mechanician candidate. He has been well reported on Form AS.264, as a sailor with the ability to become a superior sailor …". In conflict with his good professional record was his poor disciplinary record. It was further noted that all of the applicant's offences were as the result of over-indulgence in alcohol. 29 In his first affidavit, the applicant stated that his results during his period of recruit training at HMAS Leeuwin had been good and that he was in the top ten in his class. He described himself at that time as having been balanced, confident and easygoing. After the collision he said that he had become moody and aggressive. He had started drinking a lot without understanding why. A short time after the collision he experienced a number of nightmares that had caused him to wake, sweating heavily, but he was not able to recall the content of them. Starting around 1970, the applicant began to have dreams about ships. These have continued. They are not unpleasant dreams, but feature immaculately turned out ships with their crew parading in dress uniform. 30 The applicant married in 1971 and adopted his wife's child, a son named Leonard. He and his wife had a son, Peter. The marriage was troubled in part because of the applicant's drinking. His first wife left him in 1977. 31 The applicant remarried in 1983. He says that the marriage has had its difficulties, and that he has drunk heavily at times. 32 The applicant set out in his affidavits details of the numerous employers for whom he has worked since his discharge from the RAN. He said that he would leave jobs because of arguments about safety, especially in relation to boilers, electricity and poorly maintained equipment. He had generally become anxious, angry and dissatisfied about operational and safety aspects of his jobs. His last position was as a truck driver. He had given this up because he had become increasingly concerned about his potential to lose control as a result of "road rage". 33 In his first affidavit the applicant said that he had consulted his general practitioner, Dr Shanahan, and reported getting very angry on the road when driving trucks. He said that he felt he was churning inside his head and that he had told Dr Shanahan that it was a feeling that he had had since his Navy days. He said that Dr Shanahan had referred him to a psychiatrist, Dr Troup. 34 A report by Dr Troup dated 6 September 1999 is annexed to the applicant's affidavit sworn on 19 October 2004. In his first affidavit sworn on 8 October 2001, the applicant stated (at paragraph [49]): "Until then, I had not thought that I had anything wrong with me and certainly did not connect how I was with anything to do with the collision. I am starting to work through these kinds of issues with Dr Troup."