Francis Jordon Simmonds v Commonwealth of Australia [2005] NSWSC 290

New South Wales Supreme Court

CITATION : Francis Jordon Simmonds v Commonwealth of Australia [2005] NSWSC 290

HEARING DATE(S) : 5 & 6 April 2005

JUDGMENT DATE : 8 April 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Master Malpass at 1

DECISION : 1. The limitation period for the cause of action pleaded in the statement of claim is extended up to and including 17 September 2001; 2. The costs of the application are reserved; 3. The exhibits may be returned.

CATCHWORDS : Delay of 41 years - alleged significant prejudice - fair trial.

LEGISLATION CITED : Limitation Act 1969, ss60G, 60I

Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122

Francis Jordon Simmonds (Plaintiff) PARTIES : Commonwealth of Australia (Defendant)

FILE NUMBER(S) : SC 20781/01

Mr J L Sharpe (Plaintiff) COUNSEL : Mr P S Jones & Mr S Woods (Defendant)

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

LOWER COURT JURISDICTION :

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

8 April 2005

20781 of 2001 Francis Jordon Simmonds v Commonwealth of Australia

JUDGMENT 1 Master: This is another of the many proceedings brought before this Court arising out of the collision between the HMAS Melbourne and the HMAS Voyager on 10 February 1964. 2 The statement of claim was filed on 17 September 2001. A notice of motion was filed on the same day. It sought an extension of the relevant limitation period pursuant to s60G of the Limitation Act 1969 (the Act). Breach of duty has been admitted by the defendant. 3 The hearing commenced on Tuesday 5 April 2005. It occupied two days. A number of affidavits were read. 4 The plaintiff was subjected to a very lengthy and detailed cross-examination concerning, inter alia, the collision and minutiae of his life history (including what appeared to be totally unnecessary personal questioning, whilst his wife was in court, concerning a broken engagement which preceded the plaintiff meeting her in 1963). 5 He was born at Salisbury in England on 30 September 1942. He came to Australia in 1951. In 1958 he gained entry to the Naval Apprentices Establishment. On 2 January 1959, he joined the Navy as an apprentice shipwright. He became a member of the crew of HMAS Melbourne on 14 January 1963 as a shipwright. He remained on the ship until 4 January 1965. 6 In an affidavit sworn on 26 February 2002, he deposed to, inter alia, the following:- 7. In early February 1964 the Melbourne sailed from Sydney for exercises with HMAS Voyager at and near Jervis Bay, as a preliminary to a five month tour of the far east. During the day of the 10th February I performed a normal day's work of ship's maintenance. In the evening I went to watch the flying exercises. I could see Voyager nearby. I looked to the sky for the next aircraft and heard a horrendous noise. We were enveloped in sparks and flames. I thought at first we had hit a reef, but knew that was impossible as we were in deep water. Then I thought it was a submarine. I ran to the starboard side and saw the rear section of the Voyager lying right over on its beam ends, I could see its painted bottom and the propeller thrashing the water. On realising we had hit Voyager I immediately headed down to my control position. Part of the way down I stopped at an open space and could see the rear section of Voyager which had righted itself and was drifting past the Melbourne. I saw terrified crew members gripping on to the rail and staring at us. They were as horrified as we were. I only looked at them for the briefest of time because it was cruel. I felt numbed and shocked. I continued on to my damage control station. There was pandemonium with few knowing what had happened. Although only 21 I was seen as a reasonably senior officer and I had appreciated what had occurred. Everyone was in a state of disbelief and shock. No-one could believe that we had collided with Voyager. 8. With a gang of some six or so other people I undertook a check of the ship's hull for damage and cracked pipes and the like. I was then assigned to shoring up work. We took turns cutting timber baulks with a handsaw, measuring the lengths required and installing them. The ship had a double bottom, between the two bottoms were air tight compartments about one metre high with webbing and struts for strength. Ordinarily we had to obtain permission from damage control to inspect in these areas, and fans would be activated every 24 hours to vent them. We did not have time for these precautions and had to go in with our torches. Throughout the early period I did not know if the ship would be likely to sink. I knew I had no chance of getting out in time if it did, it was a maze down below. I had inspected some three or four compartments, each taking some 10 to 20 minutes. The ship was all the time creaking and groaning whilst I undertook a thorough inspection for cracks and leaks. All the time I was aware that, even if the ship sank slowly, I would not know unless someone warned me. When in the front, the likelihood was that bulk heads would cave in from pressure of the water and they would engulf us. It was not for some hours after the collision that I was assured that the vessel had been declared safe and was not in danger of sinking. It was a terribly uncertain and anxious time. 9. We worked through the night to ensure the ship was safe, apart from being relieved for a time at midnight, when I saw the rear section of the Voyager sinking. 10. I later learned that three very good friends of mine had been on Voyager and had died in the collision, Nuss, Leeson and Perrett. I glimpsed some survivors passing the cafeteria, and noted some facial and body lacerations and that they were all very white and shocked. I tried to put them out of my mind as well as putting out of my mind the danger from the possibility of sinking, in order to concentrate on our work of making the Melbourne safe. We took turns keeping watch on the shoring and repairs during the return trip to ensure it did not move or collapse. … … … 14. Also, immediately after the collision I found it difficult to get to sleep or to remain asleep. Initially after working all through the night following the collision to make the ship safe, although I was exhausted I still found it difficult to get much sleep because of the mental strain and from the day time noise coming from the Petty Officer's mess. After we reached Sydney I remained quartered onboard the ship whilst the repairs were being undertaken, and this helped to bring back the events, from reminders which were around me all the time. I found it took me an hour or more to get to sleep, I might only sleep for what seemed like 20 minutes then would typically dream I was on a ship and the lights went out, I reached for my torch in my pocket but it wasn't there, I would then panic and jerk awake. I would awake sweating, and believe I was twitching and kicking my legs. I then would lie awake thinking and finding it very difficult to get to sleep again. Most nights, ever since the collision, I have found it difficult to get to sleep and have tended to wake several times during the night. I believe this has led to me feeling tired during the day and also unhappy and miserable. I have found that alcohol makes it easier to get to sleep, and I think perhaps it helped me to stay asleep for longer. However, I was not aware of the cause and effect. I think I simply recognised that, perhaps intuitively, after drinking I had fewer of the bad dreams and did not think so much about the event. These thoughts preoccupied me after the collision, that so many young men had been deprived of their lives and their families had lost them, and all had died pointlessly. Sometimes I would have a run of these thoughts, particularly in the early days they were very frequent each week, then they might only be monthly until they were triggered by some event such as a movie, or publicity about a calamity causing loss of life. Although I managed to not let the alcohol interfere with my work, I did drink too much whenever I was off duty and feared I would be left to my thoughts. 7 For many years following the collision, he smoked heavily and abused alcohol to excess. In the mid 1980s, he reduced his alcohol consumption. In the early 1990s, he stopped smoking. 8 On 1 January 1971, the plaintiff was discharged from the Navy. Initially, he had various jobs. On 29 May 1975, he joined the Australian Merchant Navy. He stayed in that service until 8 July 1987 (when he took redundancy). 9 He moved to Western Australia. The aim was to have a fresh start. He has continued to live in that State. Largely, such work as he did thereafter was of a self-employed nature using his carpentry skills. He now has a pension. 10 There were two children of his marriage. In 1997, his son was killed in an accident. Shortly before that event, his daughter separated from her husband. 11 In the said affidavit, he further deposed to the following:- 21. It was in about May or June 2000 that I met by chance a former shipmate of the HMAS Melbourne, one Trevor Robbins. He commented that I was not looking too flash, and he suggested I should seek some assistance. I did approach Vietnam Veterans and was referred to the Department of Veterans Affairs, and first consulted my Solicitors in about October of 2000. My Solicitors referred me to a psychiatrist, Dr. William Glaser in February of 2001, and he after consultation informed me that he believed I was suffering from what was described as a post-traumatic stress disorder resulting from my experience in the collision. There is now produced and shown to me and marked with the letters "FJS2" a copy of the report by Dr. William Glaser, consultant psychiatrist, dated 6th February, 2001.