JUDGES:	MAXWELL ACJ, CHERNOV and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2006
DATE OF JUDGMENT:	10 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 88

---

TORT – Collision between two ships – Mental injury – Post-traumatic stress disorder – Knowledge by plaintiff of “personal injury” for purpose of s 5(1A) of Limitation of Actions Act 1958 – Subjective test – Burden of proof as to operation of s 5(1A) – Whether s 5(1A) operates as exception or qualification to s 5(1)(a) of the Act – Statutory history of s 5(1A) – Finding of facts challenged – DSM-IV not statutory formula – Rejection by trial judge of expert medical evidence – Limitation of Actions Act 1958 ss 5(1A), 5(1)(a).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J H Kennan SC with	Hollows
Mr K D Mueller
For the Respondent	Mr T J Casey QC with Mr R W Dyer	Australian Government Solicitor

MAXWELL ACJ:

I have had the considerable advantage of reading in draft the respective judgments of Chernov JA and Nettle JA.

For the reasons given by Chernov JA, I consider that the learned Judge was correct to treat the plaintiff as bearing the onus of bringing himself within s 5(1A) of the Limitation of Actions Act 1958.

I agree with their Honours that, where a plaintiff is seeking damages for mental injury, time does not begin to run until the plaintiff knows that his or her mental condition is a mental illness which would be recognised by the medical profession as such.

I agree with Nettle JA, for the reasons which his Honour gives, that the learned Judge applied the wrong test and that, when the correct test is applied, the plaintiff did discharge the onus resting on him. Accordingly, I agree with the orders proposed by Nettle JA.

CHERNOV JA:

The appellant, John Robert Cavenett, appeals against the decision of a judge of the Trial Division of 24 August 2005 whereby his Honour dismissed his claim for damages for personal injuries – more particularly, post traumatic stress disorder

(“PTSD”) – that he claimed, by writ issued on 15 November 1996, to have suffered as a result of the respondent’s negligence. It was the appellant’s case that those injuries arose when, at the age of 21 years and a member of the crew of the aircraft carrier HMAS Melbourne, he experienced the aftermath of the collision between his ship and the destroyer HMAS Voyager, at about 9 pm on 10 February 1964, approximately 32 kilometres southeast of Jervis Bay in New South Wales. As a result, the Voyager sustained substantial damage, eventually sinking with the loss of over 80 lives and many of her crew suffering injuries.

Background circumstances

The background circumstances to the appellant’s claim were these. The appellant was born on 1 August 1942 in South Australia. As a…

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.

Continue reading Cavenett v Commonwealth

Details

AGLC: Cavenett v Commonwealth [2007] VSCA 88
Case: [2007] VSCA 88
Decision Date: 10 May 2007

CaseChat Overview and Summary

In Cavenett v Commonwealth, the High Court was asked to determine the extent of a plaintiff's knowledge of their personal injury for the purposes of triggering a limitation period under section 5(1A) of the Limitation of Actions Act 1958. The dispute arose from a collision between two ships, resulting in the plaintiff suffering from post-traumatic stress disorder. The central legal issue was whether the plaintiff had the requisite knowledge of their personal injury at the time the limitation period began, and if so, whether the statutory provision operated as an exception or a qualification to the general limitation period under section 5(1)(a) of the Act.

The court addressed the burden of proof on the plaintiff to demonstrate their knowledge of personal injury, emphasizing that the test was subjective. The court rejected the notion that the plaintiff needed to be aware of the specific diagnosis, but rather if they knew of any personal injury. The court also examined the statutory history of section 5(1A) and its relationship with section 5(1)(a), concluding that the provision was a qualification rather than an exception to the general limitation period. The court found that the trial judge's rejection of expert medical evidence was not an error, as the DSM-IV was not a statutory formula for determining the onset of personal injury.

The High Court held that the plaintiff's knowledge of personal injury was subjective and not contingent on a formal diagnosis. The statutory provision under section 5(1A) was a qualification to the general limitation period under section 5(1)(a), and not an exception. The court upheld the trial judge's findings of fact, stating that the rejection of expert medical evidence was not erroneous. The orders of the court were that the appeal was dismissed, affirming the lower court's decision.

Orders