Winston v Commonwealth of Australia

1. [1]

   HIS HONOUR: On 3 June 1969, at night in the South China Sea, HMAS Melbourne and USS Frank E Evans collided. The Evans was severely damaged and part of it sank. Seventy four members of its crew were killed and others were injured. Robert Winston was then a serving naval airman aircraft handler on the Melbourne asleep in his bunk at the time of the collision. As the result of what occurred, and Mr Winston’s involvement in the rescue and evacuation of survivors, he sustained significant and continuing injuries and disabilities, to the details of which later reference is made. On 29 October 2019, Mr Winston filed a statement of claim seeking damages alleging that his injuries are the result of the negligence of the Commonwealth of Australia. By its defence filed on 10 July 2020, the Commonwealth has denied his allegations and contends that Mr Winston’s claim is barred by operation of s 14(1)(b) of the Limitation Act 1969. Accordingly, by his notice of motion filed on 17 July 2020, Mr Winston seeks an order pursuant to s 60G of the Limitation Act extending the time within which to commence these proceedings.

Background facts

1. [2]

   Mr Winston affirmed an affidavit dated 20 May 2020 that was read without objection in support of this application. Mr Winston describes in some detail his experience of the collision between the vessels and the frightening events that unfolded at that time. It is unnecessary to recount those matters here, principally for the reason that the Commonwealth does not dispute the fact that Mr Winston’s injuries and disabilities were at least in part caused by, or arose out of, the collision and its aftermath.

2. [3]

   Relevantly for present purposes, Mr Winston deposed to the following matters:

3. [4]

   Mr Winston was cross-examined. The following portions of that evidence should be noted:

Consideration

1. [5]

   Sections 60G and 60I of the Limitation Act are as follows:

2. [6]

   Section 14 of the Limitation Act is relevantly in these terms:

3. [7]

   By operation of Schedule 5, cl 4(1) of the Limitation Act, s 60G(2) is applicable to causes of action that accrued before 1 September 1990: Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57 at 177. Clearly enough, that provision permits a court to extend time for the bringing of an action only where the court is satisfied of the matters set out in s 60I and it is just and reasonable for an extension of time to be granted: s 60G(2). Relevantly for present purposes, a court may make an order under s 60G if the application is made within the period of three years referred to in s 60I(1)(b).

Section 60I(1)(a)

1. [8]

   The personal injury in respect of which Mr Winston seeks an extension of time to make a claim for damages against the Commonwealth is not limited to PTSD but is particularised in paragraph 7 of the statement of claim to include depression, anxiety and alcohol abuse disorder, as well as cognitive brain damage consequential upon alcohol abuse disorder.

2. [9]

   At paragraph 28 of his affidavit, set forth above, Mr Winston refers to the claim for compensation that he submitted to the Department of Veterans Affairs. That application was supported by reports from Dr Altman dated 28 February 1996 and 31 October 1996. It was Dr Altman’s view that Mr Winston suffered from PTSD, major depression and alcohol abuse as the result of the maritime collision on 3 June 1969. Dr Altman noted that Mr Winston had been admitted to a clinic in June of both 1995 and 1996 due to the severity of his symptoms.

3. [10]

   In November 1996, the Military Compensation and Rehabilitation Service informed Mr Winston of its finding that, on the basis of the available evidence, he suffered PTSD arising out of, or in the course of, his military service on 3 June 1969.

4. [11]

   Mr Winston has accepted, and I find that he was told by Dr Altman in 1996, that he suffered from PTSD. It is unnecessary for the purposes of considering what Mr Winston knew in terms of s 60I(1)(a)(i) to determine what might have been his awareness of the nature or extent of that personal injury.

5. [12]

   The signs displayed and the symptoms complained of by Mr Winston by no later than November 1996 are generally consistent with those more recently described by the parties’ medical experts. Professor Coyle considered that Mr Winston was fully aware of the chronic and profound status of his PTSD when assessed by him on 25 September 2019.

6. [13]

   Mr Winston said that he was not aware that he was suffering from brain damage as a consequence of his alcoholism until he saw the report of Associate Professor Batchelor dated 29 July 2019. This was in November 2019. He said that he was not aware that his drinking was part of an alcoholic disorder, a psychiatric injury caused by the collision, until he read that report. Only then did he become aware that he had suffered damage to his brain by way of cognitive impairment as a result of his excessive drinking.

7. [14]

   The Commonwealth submitted that the evidence does not in any event establish that Mr Winston in fact sustained an alcohol related cognitive impairment. However, even accepting for the purposes of the argument that he did, and that he was not aware of this impairment at the relevant time, the Commonwealth emphasised that this would not preclude a finding that he was aware of the “nature or extent” of his psychological condition since at least 1996. The Commonwealth referred to the observations of Meagher JA in F J Walker Ltd v Webber [1989] NSWCA 76 at 6 as follows:

8. [15]

   It is not in dispute that Mr Winston knew by 1996 that he suffered from severe chronic PTSD, major depression and that he had succumbed to alcohol abuse, all as the result of the collision, for which he had been admitted to a clinic by reason of the severity of his condition. His psychiatric condition rendered him totally and permanently unfit for work. Mr Winston has been aware since 1996 that he suffers from a psychiatric condition and that it was having and would continue to have a profound impact upon him. The Commonwealth submitted in these circumstances that Mr Winston knew “the nature and extent” of his injuries by 1996, even if he was ignorant at that time of the possibility that his condition was associated with or might ultimately lead to cognitive impairment.

9. [16]

   In my opinion, that submission must be correct. The words “nature” and “extent” summon an appreciation of general characteristics, not of detailed or specific matters. For example, a nominal plaintiff who allegedly contracted hepatic angiosarcoma as the result of negligent exposure to a toxic substance and who was given such a diagnosis would presumably be aware of the nature and extent of his or her condition as a potentially fatal fast growing malignancy, even if the precise effects of the cancer upon that person or the particular disabling mechanism of its progress and ultimate prognosis were unknown. The burden of Meagher JA’s remarks in Walker v Webber is that a plaintiff who seeks an extension can hardly expect to be entitled to take refuge in ignorance of the particular if otherwise possessing an understanding or appreciation of the general.

10. [17]

    In my opinion, Mr Winston knew and appreciated by at least the end of 1996 that he was suffering from PTSD and associated psychological or psychiatric disabilities secondary to alcohol abuse and as such was aware of the nature and extent of the personal injury suffered.

11. [18]

    At paragraph 30 of his affidavit, Mr Winston said (in somewhat unfortunately formulaic terms that probably do not do justice to his actual state of awareness of the connection in question) that he did not become aware of the negligent acts of the Commonwealth that were partly the cause of the collision until shown the statement of claim on or about 14 November 2019. The Commonwealth has criticised that evidence as it is said to rest upon the unlikely proposition that Mr Winston commenced these proceedings without being aware of the very allegations being advanced. However, for better or worse, that proposition does not in my experience appear to be either unlikely or even unusual.

12. [19]

    I accept that s 60I(1)(a)(iii) is “concerned with ignorance of the existence of acts and omissions rather than legal conclusions”: Dedousis v Water Board. Mr Winston bears the onus of identifying the particular acts or omissions of the Commonwealth of which he became aware no more than three years prior to the commencement of the proceedings. In that respect the Commonwealth has understandably criticised his evidence at paragraph 30 as too general and accordingly insufficient for that purpose.

13. [20]

    There is no doubt that Mr Winston is aware that his personal injury is the result of his terrible experiences from the collision and how he has been able to process and deal with them. It is however not without significance to observe that the Commonwealth has filed a defence by which it denies that it was negligent in the respects alleged by Mr Winston or in any way at all. Moreover, the Commonwealth has placed considerable emphasis upon the contention that Mr Winston has not been able to establish even a prima facie case of negligence against it, inferentially maintaining that there is no connection between anything that the Commonwealth did (“act”) or failed to do (“omission”) that renders it vulnerable to his claims in these proceedings.

14. [21]

    I have had the considerable advantage of observing Mr Winston as he was appropriately cross-examined by senior counsel for the Commonwealth. His case in negligence against the Commonwealth particularises a series of allegedly negligent acts and omissions that derive from evidence that was given in Captain Stevenson’s court martial and a Board of Investigation into the circumstances surrounding the collision. That evidence and the opinions about it are both voluminous and complicated. Any asserted connection between the mountain of facts and opinions exposed by this material and Mr Winston’s injury is not something that emerges with ease or alacrity.

15. [22]

    I am satisfied that Mr Winston never drew a relevant connection between his personal injury and any act or omission of the Commonwealth at any time before he saw the statement of claim. I accept his evidence that he did not become aware of the connection before he did so. I have, with great respect to Mr Winston, some continuing doubt that he has become aware of the connection even now. It follows that I am satisfied that Mr Winston was unaware of the connection between his personal injury and any act or omission of the Commonwealth at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted.

Section 60I(1)(b)

1. [23]

   Basten JA commented upon s 60I(1)(b) in Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 as follows:

2. [24]

   I am not satisfied that Mr Winston ought to have become aware of the matter listed in s 60I(1)(a)(iii) at any time earlier than he did. As the authorities make clear, this issue is not to be determined by analogy with the principles concerned with constructive knowledge. In a way that I trust is already apparent from my previous conclusions, there is a considerable air of artificiality attending the contention or expectation that a man with Mr Winston’s experience, qualifications and limitations, including his considerable medical issues, ought somehow to have discerned the connection between the matters to which s 60I(1)(a)(iii) refers.

3. [25]

   Mr Winston made a claim for compensation on the recommendation of Dr Altman. In due course the Military Compensation Rehabilitation Service accepted that he had suffered an injury arising out of the collision. Mr Winston said that his claim was in the hands of his solicitor and that was where he left it. He did not give evidence about commencing proceedings such as the present proceedings and was not cross-examined about why he did not seek legal advice to pursue his current claims much earlier. Clearly enough, Mr Winston’s claim for compensation was not based upon the fact, or the need to establish, that the Commonwealth was somehow at fault in the tortious sense for what happened to him.

4. [26]

   I take the evidence to establish that Mr Winston was in those circumstances content to receive whatever benefits or assistance he became entitled to from the Military Compensation Rehabilitation Service. He continued to mix with former shipmates at anniversaries of the collision but there is no suggestion that there was any discussion about the Commonwealth’s legal liabilities to any members of the crew of the Melbourne or that any of his fellow crewmembers had made, or had suggested to him that he should make, a claim for damages. Indeed, Mr Winston’s evidence was that he never had any discussions with other anniversary attendees about how the accident happened. Nor am I prepared to accept that an understanding of the difference between workers compensation claims and damages claims is a distinction that is generally appreciated in the community at large or by Mr Winston in particular. Mr Winston can also hardly be foisted with the consequences of an apparent failure by his solicitor to draw such a distinction to his attention. I reject the notion, if it is advanced, that Mr Winston ought to have become aware of the matters listed in s 60I(1)(a)(iii) upon the basis that those assisting at the time could have been expected to give him advice about such matters. Mr Winston specifically said in any event that he made no approaches for legal advice in relation to the Melbourne-Evans collision before seeing his current solicitor. He disagreed with the suggestion that that was something he could have done in circumstances where (presumably if) he had been told that there was a link between his injuries and the collision. Mr Winston said frankly: “I didn’t think about anything like that”.

5. [27]

   At [62] in Shaw, Basten JA referred to the plaintiff’s application in the context of s 60I(1)(b) as follows:

6. [28]

   Later, at [65], his Honour went on to indicate that “[t]here is a distinction to be drawn between a lack of insight into one’s condition and an independent unwillingness to explore further that of which one is put on notice.” In the present case, the opinion of Professor Batchelor concerning Mr Winston’s appreciation of his condition is expressed in her 29 July 2019 report as follows:

7. [29]

   Basten JA’s further observations at [70] should be noted:

8. [30]

   In the circumstances of this case, Mr Winston’s psychiatric condition appears to me to place him well outside the range of adequately functioning individuals who might be classified as those who ought to have been aware of the connection between his personal injury and the Commonwealth’s acts or omissions. The word “ought” rather suggests some reasonable expectation falling short of an express obligation or duty to do something. It does not seem to me that Mr Winston ought to have become aware of the connection referred to in s 60I(1)(a)(iii) before he became aware of it in fact. To suggest otherwise fails in my opinion to give adequate or sufficient weight to the psychiatric condition under which he was labouring.

Section 60G

1. [31]

   The Commonwealth submitted that it would not be just or reasonable to extend the limitation period for the cause of action upon which Mr Winston sues. The Commonwealth’s submissions in this respect were detailed and comprehensive and were to the following effect.

2. [32]

   The discretion to extend time "must be exercised in the context of the rationales for the existence of limitation periods": Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 551. The four broad rationales identified by McHugh J in Taylor were: (i) relevant evidence is likely to be lost with the passage of time; (ii) it is oppressive to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed; (iii) defendants, including public institutions, should be able to utilise their resources on the basis that claims can no longer be made against them; and (iv) there is a public interest in disputes being settled as quickly as possible (at 552-553). More generally, his Honour observed:

3. [33]

   Legislative provisions extending the time for commencing an action are to be seen against that background. An extension provision "is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case": per McHugh J in Taylor at 553. However, "whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action". Accordingly, "[t]he discretion to extend time should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question".

4. [34]

   An applicant for an extension thus bears the onus of satisfying the Court that it is just and reasonable to grant it: Commonwealth of Australia v Smith [2007] NSWCA 168 at [49]; Taylor at 544, 547, 551 and 567. Put another way, "once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation": Taylor at 544.

5. [35]

   The Court will not grant an extension of time where such an extension would cause the defendant actual and significant prejudice: Commonwealth v Smith [2005] NSWCA 478 at [127], cited in Shaw at [36]. As McHugh J observed in Taylor, when a defendant is able to prove that he or she will not now be able fairly to defend him or herself or that there is a significant chance that this is so, “the case is no longer one of presumptive prejudice". In a case where actual prejudice of a significant kind is shown, "it is hard to conclude that the legislature intended that the extension provision should trump the limitation period". See also Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 at [119].

6. [36]

   The Commonwealth submitted, having regard to these authorities, that Mr Winston had not in the circumstances discharged his onus of showing that an extension of time would be just and reasonable. The Commonwealth reasoned as follows.

7. [37]

   Mr Winston relied heavily on what might generally be described as the Voyager cases, which notoriously also involved a naval collision at sea. The Commonwealth maintained that there was no other relevant similarity. The Voyager collision occurred between two Australian naval vessels for which the Commonwealth bore ultimate responsibility. Indeed, in many of the Voyager cases the Commonwealth admitted liability: see, for example, Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39. In contrast, in the present proceedings the Commonwealth denies liability. Further, investigations undertaken closer in time to the collision found that it was the United States Government, not the Commonwealth, that was primarily responsible. Accordingly, the Voyager cases are a counterpoint, rather than an analogue to the current proceedings. Further, even in the Voyager cases, the decision whether to extend time necessarily turned on the circumstances of each individual case, as demonstrated by the refusal to grant an extension in Shaw, Commonwealth v Diston [2003] NSWCA 51, Blyth v Commonwealth [2005] NSWSC 721 and Pearce v Commonwealth [2005] NSWSC 359.

8. [38]

   In the present case, the Commonwealth emphasised that more than 40 years have passed since Mr Winston’s injuries first manifested. So far as liability is concerned, that passage of time must be considered in a context where he has identified, in no more than very general terms, the negligence of the Commonwealth upon which he relies. Mr Winston’s generalised reference to the "extensive material available… regarding the circumstances of the collision" glosses over the reality that there is little material concerning allegations of negligence against the Commonwealth, as distinct from documented errors by personnel aboard the USS Evans. The Board of Investigation found that "primary responsibility for the collision rested upon [the USS] Evans". While the Board of Investigation expressed the opinion that Captain Stevenson "must bear a share of responsibility for the collision", that opinion must be read in context. In a subsequent court martial of Captain Stevenson, the charges were summarily dismissed with the Judge Advocate directing that Captain Stevenson had no case to answer and the Court entering a verdict of honourable acquittal.

9. [39]

   Mr Winston’s allegation that the “collision was caused by the negligence of officers and crew of the…Melbourne" is accompanied by 17 broad particulars. The Commonwealth submitted that Mr Winston declined to respond to requests for further and better particulars of the allegation, including, for example, as to basic matters such as the identity of the crew members and officers whose acts are alleged to have been negligent. Only seven of the 17 particulars derive in terms from the opinions expressed by the members of the Board of Investigation regarding the conduct of Captain Stevenson. Having regard to the Board of Investigation Report, the facts and evidence that will be relied on to ground the balance of the particulars is not clear.

10. [40]

    In the face of Mr Winston’s decision to decline to provide further particulars, the Commonwealth maintains that it is at a significant disadvantage in terms of being able to identify wholly and with precision the nature and degree of prejudice that would flow from the grant of an extension of time. Additionally, and apart from the question of the availability to the Commonwealth of material to meet the case, the deficiency of the pleading raises a more general question as to the viability of Mr Winston’s cause of action.

11. [41]

    In this context, the Commonwealth contends that it is not just and reasonable to put it to the considerable expense of defending the proceedings having regard to the weakness of the claim as a whole. In assessing the prejudice to a defendant, a court will have regard to the strength of a plaintiff's claim: Shaw at [40], [83]. That is because it would be unfair on a defendant "to have to expend resources on meeting a weak claim where there is little likelihood of recouping any significant part of the costs involved": Shaw at [40]. In the present case, the weakness of the claim is exposed by such limited documentary evidence as exists concerning the Commonwealth’s alleged acts and omissions.

12. [42]

    The Commonwealth submitted that the Board of Investigation noted the several steps Captain Stevenson took to avoid the collision, describing those steps as "indicative of a cautious man endeavouring to avoid a collision". The Board's comment that he "might have done more" was directly qualified by the further statement that "the Board stopped short of faulting his judgment in these matters".

13. [43]

    In that context, the Commonwealth emphasised the Board's later comment that Captain Stevenson "must bear a share of responsibility for the collision since as Task Force Commander, he was responsible for the safe operation of all ships in the Task Unit" should be read as a comment on the responsibilities of Captain Stevenson's position rather than a statement about his culpability or causal responsibility. The Commonwealth also relied upon the tension between the Board's comment that Captain Stevenson should have "backed his engines at the time he put his rudder over" and that to have done so might have lessened the effects of the collision and the earlier opinion that to have done so "would have made no difference whatsoever".

14. [44]

    The Commonwealth referred to the fact that charges brought by way of court martial against Captain Stevenson were summarily dismissed, with the Judge Advocate directing that he had no case to answer and the Court entering a verdict of honourable acquittal. Evidence given at the court martial indicated that the alerts Captain Stevenson sent to the USS Evans would undoubtedly have forewarned the USS Evans to the danger of a collision and, even had Captain Stevenson ordered the HMAS Melbourne's engines to be put astern as soon as a collision became inevitable, that would have made no significant difference. Captain Stevenson's son was issued with a formal apology by the Minister for Defence in 2012 for the fact of his father having been court martialled. Many of the allegations now raised by Mr Winston were dealt with comprehensively in a detailed statement prepared by Captain Stevenson in 2005, in connection with court proceedings which were subsequently discontinued.

15. [45]

    The Commonwealth submitted that even if proper particulars of the negligence alleged had been provided and a viable cause of action had been pleaded, the Commonwealth’s extensive enquiries into the whereabouts of potential witnesses have revealed that a number of key witnesses, including Captain Stevenson, are no longer available. Although some witnesses from the court martial remain available, they would, if called, be required to give evidence of events that occurred on a single night some 41 years ago. That gives rise to the difficulty identified by Hodgson CJ in Eq in McLean v Sydney Water Corporation [2001] NSWCA 122 at [35]:

16. [46]

    These evidentiary difficulties could have been mitigated had the proceedings been commenced some time ago, including prior to the death of Captain Stevenson in 2019. Similar difficulties may also attend the ability to obtain expert evidence, in 2021, concerning the standard of conduct that could reasonably have been expected of naval personnel at the time of the collision, including by reference to the standard practice of the time.

17. [47]

    The Commonwealth submitted that passage of time has also deprived it of the practical ability to refute many of the factual allegations advanced by Mr Winston. For example, it is now difficult for the Commonwealth to identify and call witnesses who might be able to refute Mr Winston’s evidence that he began drinking heavily only after the collision. As the Court of Appeal observed in Shaw at [81], in which the Court refused an extension of time for the commencement of proceedings concerning the Voyager collision:

18. [48]

    The Commonwealth contended that Mr Winston has not produced any records to substantiate his claim that, following his discharge from the Royal Australian Navy in 1972, he was employed by five private employers. The Commonwealth has been unable to obtain records evidencing his employment, despite having issued subpoenas to employers and having undertaken various other searches. Similarly, Mr Winston has not yet provided any tax returns that evidence his employment. The Commonwealth submitted for those reasons that it is significantly prejudiced in its ability to refute the claim as to loss of earning capacity, which forms a substantial proportion of Mr Winston’s damages claim.

19. [49]

    The absence of a former naval serviceman's civilian employment records was in Commonwealth v Diston [2003] NSWCA 51, held to constitute actual prejudice such as to warrant a denial of an extension of time. Sheller JA stated that, absent such records, "the claimant had no way of challenging or verifying the opponent's evidence". A similar result was reached in Blyth v Commonwealth [2005] NSWSC 721 at [96]. Basten JA commented at [208] in Commonwealth v Smith that "years after the event, it is difficult to comprehend how any reasonable objective assessment can be made of the pre-collision character of the applicant and the effect of the collision upon him".

20. [50]

    The Commonwealth submitted that it is not just and reasonable now to grant an extension when Mr Winston could have commenced proceedings against the Commonwealth many years ago. Even where an applicant was unaware of one or more of the matters in s 60I(1)(a), he or she may have had such other awareness that it would not be just and reasonable to grant an extension of time: McLean v Sydney Water Corporation [2001] NSWCA 122 at [24].

21. [51]

    Mr Winston accepted that his application should only be refused if there is a likelihood of significant prejudice to the Commonwealth so that the chance of a fair trial is unlikely: Smith at [127]-[128]. That does not mean that the trial must be perfect or ideal. Santow JA referred to the relevant onus at [131] in these terms:

22. [52]

    One of the matters raised by the Commonwealth in this context is the alleged paucity of information concerning Mr Winston’s employment history. However, Mr Winston gave evidence about that as follows:

23. [53]

    In addition, Mr Winston annexed his Salary Service Record showing his postings and his discharge and his employment in those postings. Moreover, Mr Winston deposed to the following matters at paragraph 26 of his affidavit:

24. [54]

    The Commonwealth produced four volumes of material dealing with, among other things, the transcript of evidence and findings related to the Board of Investigation and the court martial of Captain Stevenson. Mr Winston submitted that this material was in significant degrees both likely to be admissible at the hearing and that it reliably informed the Commonwealth what his case was about. In particular, the Board of Inquiry material directly supported the allegations of negligence in the statement of claim, in particular those numbered 6(f), 6(j), 6(k), 6(l), 6(m), 6(o) and 6(p). Mr Winston emphasised that the evidence at the Board of Inquiry specifically supported at least a prima facie contention that the Melbourne’s engines should have been backed at the time the commanding officer put his rudder over and that he failed to exercise due care in that he did not positively direct the movements of the Evans at all relevant times. Furthermore, Captain Stevenson’s exoneration was irrelevant as the standard of proof was to the criminal standard.

25. [55]

    It is inevitable that the delay in commencing these proceedings is likely to result in the Commonwealth experiencing some disadvantage in responding to them. The Commonwealth will to that extent be prejudiced. However, the test is not whether Mr Winston can demonstrate that the Commonwealth will suffer no more than presumptive prejudice but whether extending the limitation period to permit a less than perfect trial to proceed is just and reasonable. So far as the Commonwealth’s liability is concerned, I fail to see how the delay in commencing these proceedings can have caused real or actual prejudice at all. The issue of who or what caused the collision was examined in minute detail in two different forums in which the Commonwealth was either an active participant or a close and interested observer. The fact that several significant witnesses who gave evidence about these matters are dead fails in my view to acknowledge the likely truths, that a full transcript of what they said is still available and that nothing they would now say would be any different to the extensive testimony that they previously gave. The suggestion that their unavailability in these circumstances creates significant prejudice is to my mind a serious overstatement. Concerns about the dimming of memories through the passage of years since 1969 are in the particular circumstances of this case more apparent than real.

26. [56]

    In addition, Mr Winston’s medical records are available from the time he commenced his service with the navy: Exhibit 2. I have no reason to doubt that his medical records since then will also be available, and no contrary submission was made. Indeed, the Commonwealth was intimately involved with Mr Winston’s medical problems in the course of assessing and favourably responding to his claim to be suffering from PTSD caused by his experiences from the collision. The suggested problems for the Commonwealth created by difficulties associated with accurately or reliably tracing Mr Winston’s employment history would also appear to me to be more apparent than real: the evidence in this application supports the contention that Mr Winston became unfit for employment. Indeed, in those circumstances, the extent to which Mr Winston managed to secure any gainful employment would operate to reduce the size of his claim for economic loss rather than the reverse. His income tax returns in any event are or will be available to clarify his employment history.

27. [57]

    Assessment of what is just and reasonable requires consideration of the interests of both parties to the litigation. Mr Winston is not entitled in this exercise to be treated more favourably because he is an individual with a serious medical condition caused by his naval service with the Commonwealth, nor is the Commonwealth to be treated less favourably because it is a powerful entity with relevantly unlimited resources to respond to his claim. What is just and reasonable is something that has to be considered having regard to all of the circumstances dispassionately and objectively. It is a matter about which minds may differ.

28. [58]

    Taking as practical and as realistic an approach as I can, I anticipate that this litigation will principally involve an assessment of the legal liability of the Commonwealth by reference to the extensive, not to say exhaustive, accounts of what occurred on 3 June 1969 and what should have been done to avoid the collision. My expectation is that experts for both sides will be able without too much difficulty to consider this material and express opinions, to the extent that it is legitimate for them to do so, about Mr Winston’s allegations of negligence by the Commonwealth. The Commonwealth’s avowed concern that Mr Winston has failed to identify the particular individuals who might have been involved in these alleged errors on the night itself fails properly to take account of the responsibility that the Commonwealth undoubtedly bears for the acts or omissions of these men and women. They will have already taken part in the earlier investigations and recorded proceedings to which I have referred. The Commonwealth’s protestations of significant prejudice, as distinct from senior counsel’s helpful submissions on the Commonwealth’s behalf, could on one view be considered to be a touch disingenuous. I consider that the Commonwealth will be able to receive a fair trial, even if not necessarily a perfect one.

Conclusion and orders

1. [59]

   In my opinion, it is both just and reasonable to order that the limitation period for the cause of action upon which Mr Winston sues be extended up to and including 29 October 2019. I consider that the Commonwealth should pay Mr Winston’s costs of the application.

Postscript

1. [60]

   After I had reserved my decision on 2 February 2021, James Taylor, the solicitor for Mr Winston, contacted my Associate with a request to re-list the proceedings in order that certain further matters that had not been referred to in the course of the hearing might be dealt with. Mr Taylor was concerned to meet the submission made by senior counsel for the Commonwealth that it may be prejudiced by reason of a lack of evidence of Mr Winston’s actual and potential earnings since the collision and that an assessment of that prejudice should, in combination with other factors, lead me to dismiss the current application. In the events that occurred, Mr Taylor filed a notice of motion seeking an order that this occur. In particular, Mr Taylor wished to tender an actuarial report dated 15 July 2020 prepared by Mr Plover of Cumpston Sarjeant, consulting actuaries, in support of Mr Winston’s claim for past economic loss and in order for present purposes to meet the Commonwealth’s submission that its prejudice was made the greater by reason of limited economic information to support that claim.

2. [61]

   The Commonwealth initially opposed the application for an extension of the limitation period being relisted. However, after correspondence between the parties, that issue was resolved upon the basis of the following consent orders dated 12 February 2021:

3. [62]

   The original point of difference between the parties concerning the report was whether it was an hypothetical analysis of Mr Winston’s claimed economic loss, based on unproven assumptions with no documentary support or whether it was based on documents that had in fact been supplied to the Commonwealth. Mr Taylor deposed to this issue in his affidavit sworn on 9 February 2021 in support of the motion in the following terms:

4. [63]

   The Commonwealth’s position is summarised in the letter from Mr Mark Kelly at the Australian Government Solicitor dated 9 February 2021 addressed to my Associate “to be treated as submissions on the application to reopen”. Part of that letter is as follows:

5. [64]

   It seems to me that it is important to have recorded the issue concerning the actuarial report and the parties’ respective views about its utility for the purposes of Mr Winston’s application to extend time. However, having regard to the view I have formed about the Commonwealth’s prospects of being able adequately to respond at a final hearing to Mr Winston’s claim for loss of earnings or earning capacity, it is unnecessary to deal with these matters further.