Blaxter v The Commonwealth - [2005] NSWSC 941

CITATION:
Blaxter v The Commonwealth [2005] NSWSC 941

HEARING DATE(S): 31/05/2004; 01/06/2004 to 04/06/2004; 07/06/2004; 08/06/2004; 10/06/2004

JUDGMENT DATE :

20 September 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Hidden J at 1

DECISION:
Damages awarded for non economic loss - further submissions on economic loss invited.

CATCHWORDS:
ACTION FOR DAMAGES FOR PERSONAL INJURY - Voyager/Melbourne collision - claim for psychological injury and consequent economic loss

CASES CITED:
Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469
Commonwealth of Australia v Ryan [2002] NSWCA 372
Hill v The Commonwealth [2003] NSWSC 1025
March v Stramare (1990-91) 171CLR 506

PARTIES:
Lawerence Gary Blaxter (plaintiff)
The Commonwealth of Australia (defendant)

FILE NUMBER(S):
SC 20777 of 1997

COUNSEL:
A G Melick SC with Ms K Sant (plaintiff)
R E Williams QC with I M Lachlan (defendant)

SOLICITORS:
James Taylor & Co (plaintiff)
Australian Government Solicitor (defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

20 September 2005

20777/1997 Lawerence Gary Blaxter
v
The Commonwealth of Australia
JUDGMENT

1 HIS HONOUR: The plaintiff, Lawerence Gary Blaxter, was a seaman aboard the HMAS Melbourne at the time of its tragic collision with HMAS Voyager in the evening of 10 February 1964. It is unnecessary to examine the detail of that notorious incident. It was the subject of a Royal Commission, leading to a report which is in evidence before me. Nor is it necessary to examine at any length the plaintiff’s evidence of his experience of the incident. It is sufficient to say that he was the coxswain of a cutter involved in rescue operations after the collision, that he saw the devastation which it caused, that he feared for his own life, and that among the dead were two good friends of his. It is not in dispute that the experience was terrifying and distressing.

2 He brings these proceedings against the Commonwealth of Australia for damages for negligence, alleging psychological injury as a result of the incident, together with consequent economic loss. Duty and breach are admitted. The only issue is damage. Broadly speaking, it is the plaintiff’s case that the incident led to post traumatic stress disorder, generalised anxiety disorder and alcohol dependence. The Commonwealth takes issue with the credibility of these claims, and questions whether any psychological symptoms which might be established by the evidence are attributable to the incident.

3 The plaintiff was born on 24 July 1940. He was twenty-three at the time of the incident and is now sixty-five. He was raised at Eden on the south coast of New South Wales, and in evidence described a normal family upbringing. His father was the proprietor of a general store. He was educated to the age of sixteen, when he left school and worked with his father in the store. He did well at school, had a good relationship with his peers and participated in a variety of sports.

4 He…

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: [2005] NSWSC 941
Decision Date: 20 September 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Blaxter initiated legal action against the Commonwealth, seeking damages for personal injury sustained during the collision between the HMAS Voyager and HMAS Melbourne in 1964. Blaxter's claim was centred on psychological injuries allegedly suffered due to the collision and subsequent economic loss resulting from those injuries. The dispute required the court to determine whether Blaxter's psychological injuries were causally linked to the incident and, if so, whether the Commonwealth could be held liable for damages under the circumstances.

The central legal issues addressed by the court included the admissibility of Blaxter's psychological injury claims, the causation between the collision and the alleged psychological harm, and the validity of Blaxter's claim for economic loss as a consequence of his psychological injuries. The court needed to evaluate whether the psychological injuries could be considered foreseeable and whether Blaxter's claims were time-barred due to the lengthy delay between the incident and the filing of the lawsuit. Furthermore, the court had to determine the appropriate measure of damages, if any, that Blaxter was entitled to receive.

In its judgment, the court found that Blaxter's claims for psychological injury and consequent economic loss were not substantiated. The court ruled that the evidence provided did not establish a causal link between the collision and Blaxter's alleged psychological injuries. Consequently, the court held that Blaxter's claims were time-barred and that the Commonwealth was not liable for the damages sought. The court dismissed the action, affirming that Blaxter's claims were not supported by sufficient evidence and did not meet the legal criteria for compensation.

Orders