Blaxter v Commonwealth of Australia - [2008] NSWCA 87

New South Wales

Court of Appeal

CITATION: BLAXTER v COMMONWEALTH OF AUSTRALIA [2008] NSWCA 87
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 April 2008

JUDGMENT DATE:
8 May 2008

JUDGMENT OF: Mason P at 1; McColl JA at 2; Basten JA at 3

DECISION: (1) Allow the appeal and set aside order 1 made by the trial judge and entered on 20 March 2007.
(2) In lieu thereof give judgment for the plaintiff, Lawrence Gary Blaxter, in an amount of $942,163.
(3) Dismiss the cross-appeal.
(4) Order the respondent to pay the appellant’s costs of the appeal and cross-appeal.
(5) Grant liberty to each party to file a note within 7 days as to any correction required to the calculations of the amount of the judgment.

CATCHWORDS: DAMAGES – Melbourne/Voyager collision – psychiatric injury – alcohol abuse – whether economic loss a result of collision or voluntary conduct by appellant – intervening act - DAMAGES – predicting future events absent effects of tortious conduct – recovery for loss of a chance of promotion - REASONS – judgment delivered without making orders – further reasons – no breach of obligation to give reasons at time - TORT – continuation of event – conduct of officer of defendant on morning after accident – whether part of tortious conduct

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW), r 36.2

CATEGORY: Principal judgment

CASES CITED: Chapman v Hearse (1961) 106 CLR 112
Commonwealth v McLean (1996) 41 NSWLR 389
Commonwealth v Ryan [2002] NSWCA 372
Fleming v The Queen [1998] HCA 68; 197 CLR 250
Hirst v Nominal Defendant [2005] QCA 65; [2005] 2 QdR 133
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Palmer v Clarke (1989) 19 NSWLR 158
Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; 53 NSWLR 43
Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463

PARTIES: Gary Lawrence Blaxter (Appellant)
Commonwealth of Australia (Respondent)

FILE NUMBER(S): CA 40199/07

COUNSEL: A G Melick SC/ K Sant (Appellant)
R E Williams QC/I McLachlan (Respondent)

SOLICITORS: James Taylor & Co (Appellant)
Australian Government Solicitor (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20777/97

LOWER COURT JUDICIAL OFFICER: Hidden J

LOWER COURT DATE OF DECISION: 20 September 2005; 18 August 2006; 16 February 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Blaxter v The Commonwealth [2005] NSWSC 941; [2006] NSWSC 744; [2007] NSWSC 88

CA 40199/07
SC 20777/97

MASON P
McCOLL JA
BASTEN JA
8 May 2008

BLAXTER v COMMONWEALTH OF AUSTRALIA

Headnote

The appellant, Mr Lawrence Gary Blaxter, was a seaman aboard HMAS Melbourne on the night of its collision with HMAS Voyager on 10 February 1964. The Commonwealth admitted negligence; the proceedings in the Common Law Division concerned the quantum of damages for which it was liable. Hidden J accepted that the appellant suffered a psychological injury as a result of the collision, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 87
Decision Date: 8 May 2008

CaseChat Overview and Summary

The appeal in *Blaxter v Commonwealth of Australia* concerned a claim for damages arising from the collision between HMAS Melbourne and HMAS Voyager. The appellant, Lawrence Gary Blaxter, sought to recover damages for psychiatric injury and associated economic loss. The respondent, the Commonwealth of Australia, contested the extent of its liability, particularly concerning the appellant's alcohol abuse and its impact on the claimed losses. The matter was heard by the New South Wales Court of Appeal.

The Court of Appeal was required to determine several key legal issues. These included whether the appellant's economic loss was a consequence of the collision or an intervening voluntary act of alcohol abuse, and whether such abuse constituted an independent cause of the loss. The court also had to consider the principles governing the recovery of damages for a loss of a chance of promotion and how to predict future economic events in the absence of the tortious conduct. Furthermore, the court examined whether the conduct of a naval officer on the morning after the accident was part of the tortious conduct giving rise to the claim.

The Court of Appeal allowed the appeal, setting aside the trial judge's original order. The court found that the appellant was entitled to judgment in the amount of $942,163. In reaching this decision, the court applied principles relating to causation, particularly the assessment of intervening acts and the extent to which a tortfeasor is responsible for the consequences of their actions, even where the injured party's own conduct contributes to the loss. The court also addressed the method for calculating damages for the loss of future economic opportunities. The cross-appeal was dismissed, and the respondent was ordered to pay the appellant's costs of the appeal and cross-appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside order 1 made by the trial judge and entered on 20 March 2007. (2) In lieu thereof give judgment for the plaintiff, Lawrence Gary Blaxter, in an amount of $942,163. (3) Dismiss the cross-appeal. (4) Order the respondent to pay the appellant's costs of the appeal and cross-appeal. (5) Grant liberty to each party to file a note within 7 days as to any correction required to the calculations of the amount of the judgment. (per Basten JA, with Mason P and McColl JA agreeing)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BLAXTER v COMMONWEALTH OF AUSTRALIA [2008] NSWCA 87 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 April 2008
JUDGMENT DATE:	8 May 2008
JUDGMENT OF:	Mason P at 1; McColl JA at 2; Basten JA at 3
DECISION:	(1) Allow the appeal and set aside order 1 made by the trial judge and entered on 20 March 2007. (2) In lieu thereof give judgment for the plaintiff, Lawrence Gary Blaxter, in an amount of $942,163. (3) Dismiss the cross-appeal. (4) Order the respondent to pay the appellant’s costs of the appeal and cross-appeal. (5) Grant liberty to each party to file a note within 7 days as to any correction required to the calculations of the amount of the judgment.
CATCHWORDS:	DAMAGES – Melbourne/Voyager collision – psychiatric injury – alcohol abuse – whether economic loss a result of collision or voluntary conduct by appellant – intervening act - DAMAGES – predicting future events absent effects of tortious conduct – recovery for loss of a chance of promotion - REASONS – judgment delivered without making orders – further reasons – no breach of obligation to give reasons at time - TORT – continuation of event – conduct of officer of defendant on morning after accident – whether part of tortious conduct
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), r 36.2
CATEGORY:	Principal judgment
CASES CITED:	Chapman v Hearse (1961) 106 CLR 112 Commonwealth v McLean (1996) 41 NSWLR 389 Commonwealth v Ryan [2002] NSWCA 372 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Hirst v Nominal Defendant [2005] QCA 65; [2005] 2 QdR 133 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Palmer v Clarke (1989) 19 NSWLR 158 Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; 53 NSWLR 43 Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463
PARTIES:	Gary Lawrence Blaxter (Appellant) Commonwealth of Australia (Respondent)
FILE NUMBER(S):	CA 40199/07
COUNSEL:	A G Melick SC/ K Sant (Appellant) R E Williams QC/I McLachlan (Respondent)
SOLICITORS:	James Taylor & Co (Appellant) Australian Government Solicitor (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20777/97
LOWER COURT JUDICIAL OFFICER:	Hidden J
LOWER COURT DATE OF DECISION:	20 September 2005; 18 August 2006; 16 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Blaxter v The Commonwealth [2005] NSWSC 941; [2006] NSWSC 744; [2007] NSWSC 88