Blunden v Commonwealth of Australia [1999] ACTSC 128 (26 November 1999)

Last Updated: 12 May 2005

BARRY THOMAS BLUNDEN v COMMONWEALTH OF AUSTRALIA [1999] ACTSC 128 (26 November 1999)

CATCHWORDS

LIMITATION OF ACTIONS - psychological injury said to have been suffered as a consequence of collision between HMAS Melbourne and HMAS Voyager in 1964 - claim governed by law of the forum - discretionary considerations - whether fair trial could be held notwithstanding delay of 34 years - application for extension of time refused.

Limitation Act 1985 (ACT), ss 36, 56

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41

McKain v R W Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1

Stevens v Head [1993] HCA 19; (1993) 176 CLR 433

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

No. SC 324 of 1998

Judge: Crispin J

Supreme Court of the ACT

Date: 26 November 1999

IN THE SUPREME COURT OF THE )

) No. SC 324 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BARRY THOMAS BLUNDEN

Plaintiff

AND: COMMONWEALTH OF AUSTRALIA

Defendant

ERRATUM

Judge: Crispin J

Date: 26 November 1999

Place: Canberra

Amendment to Reasons for Judgment dated 26 November 1999

The date "10 February 19964" appearing in the third line of paragraph 3 be amended to

"10 February 1994".

Ondina Matera

Associate to Justice Crispin

26 November 1999

IN THE SUPREME COURT OF THE )

) No. SC 324 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BARRY THOMAS BLUNDEN

Plaintiff

AND: COMMONWEALTH OF AUSTRALIA

Defendant

ORDER

Judge: Crispin J

Date: 26 November 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The motion be dismissed.

1. This is a motion for an order extending the period within which an action may be brought seeking damages for injuries and disabilities said to have been sustained by the plaintiff as a consequence of the defendant's negligence.

2. The action was commenced by an originating application filed on 14 May 1998 and notice of the present motion was given on 11 June 1999.

3. The plaintiff was serving on HMAS Melbourne when it collided with HMAS Voyager in waters off the coast of Australia. Whilst the Statement of Claim refers to the incident as having occurred on 10 February 1994 and an Affidavit filed on behalf of the defendant refers to it having occurred in 1969 it was ultimately common ground that it actually occurred on 10 February 1964. He claims to have suffered a chronic post traumatic stress disorder, a depressive disorder and other psychological injuries as a result of observing the deaths of some fellow members of the navy and the injuries of others.

4. Shortly after the collision the plaintiff began to have nightmares about what had occurred. He began to drink heavily and had difficulty coping with his duties. He was discharged from the navy on 20 October 1967 but continued to drink heavily. He also experienced difficulties in relation to his marriage and other relationships and found it difficult to maintain employment. He first had counselling in about 1993 from the Vietnam Veterans Counselling Service and received psychiatric treatment in about June 1995 though he said that even at that stage he did not know what was wrong with him. On 22 May 1996 he was referred to Dr Brian White, a psychiatrist who diagnosed his problem and expressed the opinion that it was largely brought on by his experience with the sinking of the Voyager. He consulted his solicitors on 25 January 1997.

5. The substantive law which must be applied in the determination of actions for tort is that of the lex loci delicti though the procedural law to be applied is that of the forum: see Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, McKain v R W Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1; Stevens v Head [1993] HCA 19; (1993) 176 CLR 433. Section 56 of the Limitation Act 1985 (ACT) provides that:

"If the substantive law of another place being a State, another Territory or New Zealand, is to govern a claim before a court of the Territory a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court."

6. In the present case, however, it appears that the incident occurred in the open sea and not within any of the places referred to in s 56. At common law limitation laws are regarded as procedural rather than substantive in character and in the absence of any applicable statutory provision the application must be determined according to the law of the Australian Capital Territory.

7. Section 36 of the Limitation Act authorises the court to extend the period within which an action may be brought to recover damages for personal injuries if satisfied that "it is just and reasonable so to do". Subsection (3) of that section provides that the court must have regard to all the circumstances of the case including:

"(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received."

8. As McHugh J observed in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 555 the discretion to extend the time within which an action may be brought against a person must be exercised in the context of the rationales for the existence of limitation periods. In almost every case in which there has been an extensive delay there is an inevitable potential for prejudice. Crucial witnesses may be dead or important documents destroyed. Furthermore, the prospects of attaining just results may have deteriorated in ways not recognised by any of the parties. Important, perhaps decisive evidence may have disappeared without anybody knowing that it had once existed. Memories fade and the significance of those facts or circumstances which can be recalled may no longer be appreciated. Furthermore, it may be oppressive to allow an action to be brought long after the circumstances which gave rise to it have passed. People should be able to arrange their affairs on the basis that claims can no longer be made against them.

9. Hence, there will be "presumptive prejudice" even if actual prejudice has not been proven. Limitation periods reflect a judgment by the legislature that the general welfare of society is best served by causes of action being litigated within the period so specified notwithstanding the real risk that legitimate claims might thereby be defeated. A judicial discretion such as that provided by s 36 of the Limitation Act 1985 (ACT) must be exercised in this context. Consequently, whilst an applicant may have an apparently good claim and a good explanation for not pursuing it earlier those facts will not, of themselves, justify the exercise of the discretion in his or her favour. It is incumbent upon such an applicant to demonstrate that it is just and reasonable for the period to be extended notwithstanding the considerations which I have mentioned. As McHugh J observed, again at 555, it may sometimes be a lesser evil to expose a defendant to an otherwise statute barred claim than to deprive a plaintiff of the right to have it litigated. That will often be the case when the delay has occurred without significant fault on the part of the plaintiff and when it has not occasioned any readily apparent prejudice to the interests of the defendant. On the other hand, the apparent justice of a plaintiff's claim will seldom be sufficient to warrant reinstating a right of action against a defendant who has been effectively deprived of the opportunity of fairly defending the claim or has suffered significant prejudice as a result of the delay.

10. By the time the present proceedings were commenced more than thirty-four years had elapsed since the tragic incident which the plaintiff claims precipitated the post traumatic stress disorder and the other psychological conditions from which he continues to suffer. Mr Bartley SC who appeared on his behalf conceded that the extension of time sought would set a new record for the Australian Capital Territory but exhorted me to be bold, and cited examples set by judges in other jurisdictions said to have acceded to similar applications in other cases even after the passage of periods of up to half a century. Whilst not disputing that extensive delay might prevent the fair trial of an action in other circumstances, he maintained that it was unlikely to have caused significant prejudice to the defendant's prospects of successfully defending the plaintiff's claim in the present case.

11. The circumstances in which the Melbourne collided with the Voyager had been the subject of extensive investigations and were unlikely to be disputed. Indeed, Mr Stretton, who appeared for the defendant did not foreshadow any such dispute, though he did indicate that the defendant would contend that any duty of care which it may have owed to service personnel such as the plaintiff did not extend to an obligation to protect them from psychological injury. He also indicated that the defendant disputed the plaintiff's claim that any psychological conditions from which he might have suffered were caused by his presence on the Melbourne at the relevant time and his reactions to the events that occurred. It was in relation to the latter issue that the position of the defendant had been prejudiced by delay.

12. Mr Bartley submitted that Mr Stretton's contention of significant prejudice concerning the issue of the causation of the plaintiff's psychological conditions could not be sustained. The medical reports obtained by the defendants suggested, variously, that the plaintiff had no psychological disorder, that alcohol abuse was the cause of his continuing problems rather than a symptom of a psychological disorder, that if he did have such a disorder it was adequately explained by other events that had occurred in his life, and that he would have had it even if he had not been involved in the incident in question. There was no evidence to suggest that any of the medical experts had been unable to form an opinion as to the cause of his continuing problems or that it had been necessary to venture such an opinion only tentatively due to the paucity of contemporaneous information, though he conceded that Dr White had "only half heartedly" agreed that contemporaneous records might be of assistance.

13. Mr Bartley also submitted that there was a compelling case for the exercise of any discretion in his client's favour. He maintained that the plaintiff's life had been effectively ruined as a result of the psychological damage which he had suffered as a result of the defendant's negligence. Yet he had not known that the saga of the misfortune and sadness that he had experienced had been caused by his fateful experience on the Melbourne until he became aware of Dr White's opinion to that effect in late 1996. Thereafter, he moved reasonably quickly to obtain legal advice and assert his rights. Accordingly, this is a case in which the delay occurred without any significant fault on the plaintiff's part and if an extension of time is not granted he will forever lose his opportunity to maintain a claim against the defendant for damages to compensate him for all that he has suffered.

14. It may be true as Mr Bartley's analysis of the medical report suggests, that the defendant has not been deprived of all means of defending this aspect of the plaintiff's claim. However, the fact that a party has not been left entirely defenceless does not mean that it has not suffered real prejudice by being denied access to the full armoury that might otherwise have been available to it.

15. Mr Stretton sought to demonstrate actual prejudice by pointing to evidence of other events in the plaintiff's life which he contended may have caused or at least contributed to the psychological conditions of which he presently complains.

16. Records at the Calvary Hospital at Wagga Wagga record a history given by the plaintiff during the course of a group session in March 1993 including an account of growing up in a very strict household and having had a year "free" before joining the Navy which he discovered "was the same pattern as the family". He said he had been in the Navy for a few months when the collision occurred and that he had lost mates on the Voyager. Shortly afterwards his father died at sea and he had felt guilty that he had not been with him. He said he "realised this gave him an excuse to drink". He also did service in Vietnam. Subsequent entries record that he had described himself as a "black sheep". He had married 27 years earlier but had "betrayed his wife by having other women and not being around". He was scared of intimacy and was remorseful about his relationships. Another note records that he needed further work on physical and emotional loss issues and that guilt over his father's death and his wife's non-acceptance of treatment for cancer both needed addressing. A further note records him saying that as a result of his wife's infidelity twenty years ago he "coped by drinking ever since". On the other hand, an earlier note quoted him as claiming to have been a heavy drinker since the age of seventeen.

17. In a memorandum dated 8 September 1966 a naval medical officer said that the plaintiff had been in trouble constantly during his time in the Navy. He bitterly resented authority and did not like either the Navy or the work. It noted that he was on the Melbourne at the time of the collision with the Voyager and added that the recent drowning of his father had made him fear and hate the sea. In a subsequent memorandum dated 20 September 1966 a psychiatrist, Surgeon Commander McGeorge, made the following observations:

"Not happy in the service. Can't take the discipline. He thinks about his father's drowning all the time. He certainly looks a picture of misery but this is probably occasioned by his dissatisfaction in the Navy. Feels like smashing things. He seems to be at a loss to recount any real psychiatric symptoms and I am inclined to regard him as a disciplinary, rather than a medical, problem."

18. On 13 July 1970 the plaintiff was assessed by another consultant psychiatrist, Dr Arnaud Reid, whilst serving a sentence of imprisonment for stealing a car. Dr Reid said that he appeared to have had psychiatric problems for some time, "certainly since joining the Navy in 1963". He had had marital problems at that time and had found service life incompatible with marriage. He had attempted to get out of the Navy firstly by applying for a free discharge and then by seeking to be discharged on psychiatric grounds. He was finally discharged as "services no longer required", which Dr Reid described as a polite way of referring to a dishonourable discharge. He said that the plaintiff apparently went absent without leave and drank to excess in order to obtain his discharge. However after leaving the Navy he continued to drink excessively. In November 1969 he admitted himself to Kenmore Mental Hospital where he stayed for a period of six weeks and received group therapy. In that month he had had "severe worries" about his wife's health and the fact that he had no medical insurance and took to drinking more heavily than ever. He stole money from his employer and was placed on a bond. He apparently stayed in hospital for about six weeks and received group therapy. However, the offence of stealing a car occurred on 27 December 1969 and he was subsequently sent to prison. Dr Reid concluded that he showed no evidence of any psychosis. He said that he thought he was a basically insecure individual who at that time had plenty to feel insecure about. He was insecure about the perceived threat of homosexual approaches and suspicions that he was being "groomed" to take the blame for the smuggling of contraband goods.

19. In a subsequent report of 3 August 1970 Dr Reid said that the plaintiff had claimed to have been very happy in the Navy until the time of the collision. He said that it was about this time that his father drowned in a boating accident and that if it had not been for the fact that the Melbourne had been delayed by bad weather he would have been with his father at the time. It was after this that he got into trouble with the Navy and had been driven to take action leading to his discharge.

20. Dr David Bell, a psychiatrist who interviewed the plaintiff at the request of the defendant, recounted an extensive history given to him by the plaintiff. He said that the plaintiff had told him that after his father's death he had seen a psychologist about a discharge from the Navy. He also said that he had served fourteen months in Long Bay and then Goulburn prisons and had found these incarcerations frightening experiences. He had both witnessed and received "bashings" and he had been in prison during the 1969 riots, though he claimed that these events had not overtly disturbed him.

21. Dr Drew, a psychiatrist who treated the plaintiff intermittently from June 1995 to March 1996 expressed the opinion that it is "possible that Mr Blunden's experience in association with the sinking of the Voyager contributed quite significantly to his development of alcohol dependence, which appears to be his primary problem". However, he was unable to give a firm opinion on this issue based upon "my contacts with him at this late stage".

22. These few references to the evidence may be sufficient to illustrate the nature of the problems which the defendant would encounter in attempting to defend the plaintiff's claim should leave be granted. There are some records of his medical and psychological condition but the records of any treatment he may have received prior to 1979 which was, of course, some fifteen years after the collision, are sparse. There are few records of any of his employers and no taxation returns in relation to such employment he may have undertaken prior to the late 1980's. Furthermore, the defendant has been unable to locate many fellow sailors who may have been able to observe his behaviour before and after the collision and those few who have been located now have little or no memory of relevant matters. In these circumstances I am unable to be satisfied that the defendant's position has not been significantly prejudiced by the extensive delay in commencing proceedings. There are a number of issues which I think it would be difficult if not impossible for the defendant to now address. For example the suggestion that he might have had psychiatric problems at least since joining the Navy in 1963 cannot now be explored by reference to medical records, his employment history or the evidence of people who knew him.

23. The defendant would be similarly hampered in any attempt to explore other possible causes of his alcohol dependence such as some factor related to his upbringing, emotional responses to other incidents or a deliberate course of drinking to excess which he may have found himself unable to stop. It would also be difficult for the defendant to attempt to disentangle any psychological injury sustained by his response to the loss of friends following the collision from any other psychological harm sustained as a result of other factors such as his guilt over the death of his father, his service in Vietnam or being bashed in jail.

24. In all the circumstances I am not satisfied that a fair trial of the action would be possible after the passage of such a lengthy period of time. Accordingly, I am unable to be satisfied that it would be just and reasonable to extend the period within which the action might be brought. The motion must be dismissed.

25. I will hear counsel as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 26 November 1999

Counsel for the plaintiff: Mr B J Bartley SC

Solicitor for the plaintiff: Gary Robb & Associates

Counsel for the defendant: Mr G Stretton

Solicitor for the defendant: The Australian Government Solicitor

Date of hearing: 5 November 1999

Date of judgment: 26 November 1999