Commonwealth of Australia v Smith

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Commonwealth of Australia v Smith [2007]  NSWCA 168

FILE NUMBER(S):
40742/06

HEARING DATE(S):               31 May 2007

JUDGMENT DATE: 13 July 2007

PARTIES:
Commonwealth of Australia - Appellant
David Ronald Smith - Respondent

JUDGMENT OF:       Giles JA McColl JA Studdert J   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          SC 20785/97

LOWER COURT JUDICIAL OFFICER:     Adams J

LOWER COURT DATE OF DECISION:    6 July 2006 & 18 September 2006 (Costs)

LOWER COURT MEDIUM NEUTRAL CITATION:
Smith v The Commonwealth of Australia [2006]  NSWSC 689 & [2006] NSWSC 956 (Costs)

COUNSEL:
C Barry QC & D Brogan - Appellant
P G Mahoney SC & J L Sharp - Respondent

SOLICITORS:
Australian Government Solicitor - Appellant
Riordan Legal Lawyers (Vic) - Respondent

CATCHWORDS:
Limitations - Voyager/Melbourne collision - whether error in extending limitation period - leave to appeal refused on issue of awareness of psychiatric injury and connection with collision - appellant did not raise issue at trial - by majority, no error in exercise of discretion to extend limitation period - reference to commonality of issues in many Voyager/Melbourne collision extension cases  and whether appellant's current approach should continue.

LEGISLATION CITED:
Limitation Act 1969
Civil Procedure Act 2005

CASES CITED:
Blyth v Commonwealth of Australia [2005] NSWSC 721;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541;
Commonwealth of Australia v Diston [2003] NSWCA 51;
Commonwealth of Australia v Lewis [2007] NSWCA 127;
Commonwealth v McLean (1996) 41 NSWLR 389;
Commonwealth of Australia v Shaw (2006) 66 NSWLR 325;
Commonwealth of Australia v Smith [2005] NSWCA 478;
Drayton Coal Pty Ltd v Drain (CA, 22 August 1995, unreported);
Holt v Wynter (2000) 49 NSWLR 128;
House v The King (1936) 55 CLR 499;
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151;
Jones v Royal Hospital for Women (CA, 24 July 1998, unreported);
Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522;
McLean v Commonwealth of Australia (Supreme Court of New South Wales, Sperling J, 18 June 1996; unreported);
McLean v Sydney Water Corporation [2001] NSWCA 1222;
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333;
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274;
Parsons v Douglas (2001) 52 NSWLR 163;
Pearce v Commonwealth [2005] NSWSC 359;
Purkess v Critenden (1965) 114 CLR 164;
Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 364;
Scott v Handley [1999] FCA 404;
Smith v Morton [2004] NSWCA 84
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477;
State of Queensland v Stephenson (2006) 226 CLR 197;
Sydney City Council v Zegerac (1998) 43 NSWLR 195;
Telstra Corporation Ltd v Rea [2002] NSWCA 49;
Vairy v Wyong Shire Council (2005) 223 CLR 422;
Watts v Rake (1960) 108 CLR 158.

DECISION:
Application for leave to appeal dismissed with…

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Details
Case
[2007] NSWCA 168
Decision Date

CaseChat Overview and Summary

The Commonwealth of Australia sought leave to appeal a decision of the primary judge in the matter of *Smith*. The dispute concerned the extension of a limitation period for Mr. Smith's claim arising from the *Voyager/Melbourne* collision. The primary judge had granted leave to extend the limitation period, a decision the Commonwealth challenged.

The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion to extend the limitation period. Specifically, the appeal focused on the primary judge's findings regarding Mr. Smith's awareness of his psychiatric injury and its connection to the collision, an issue that had not been raised at trial.

The Court, by majority, found no error in the primary judge's exercise of discretion. While acknowledging criticisms of the reliability of Mr. Smith's evidence regarding the onset and nature of his symptoms, and noting that medical reports did not explicitly link his condition to the collision, the majority considered the overall circumstances. The Court also referenced the commonality of issues in many *Voyager/Melbourne* collision cases and the appellant's approach in this instance. The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Focussing for the present on PTSD, there was occasion for questioning that he suffered PTSD as a result of the collision. As later noted, the judge said that “legitimate criticism can be made of the reliability of [Mr Smith’s] evidence”, and there was a sound basis for that observation. In particular, in his evidence before the judge Mr Smith said that the nightmares et cetera which he also said immediately followed the collision began while he was in Vietnam, and that apart from his fear of flying and “some anxiety about being below deck in the ship, sleeping below decks and so on” were not present prior to his service in Vietnam. He said that the anxiety last mentioned was “nothing like the problems [he] had after [he was] in Vietnam”. In a statement in August 1992 in support of his application for a disability pension Mr Smith said -“Due to my war neurosis I am finding that my medical condition is worsening and also my ability to cope. My bouts of depression, anxiety and poor sleeping pattern leave me feeling exhausted and I feel very sad and unhappy and often feel that I would just like to ‘get away from everything’. I feel that my life is ruined due to my Vietnam service and without my wife and family I doubt that I would have any quality of life whatsoever. Over the years preceding my failing health I had been restless, unsettled and moving from job to job which has taken its toll on my and my family. I feel my condition is chronic and never ending and that no therapy or medicine can help. I am at a loss to feel or understand why I am like this but can guarantee that prior to my war service my life was satisfying and worthwhile so it leaves me with the conclusion that the war has caused all this and I can never been the man I once was.” (emphasis added) Mr Smith saw the unknown psychiatrist in Saigon in 1969. (He said in his evidence that he did not think the person he saw was a psychiatrist). The development of his fear of flying and his other symptoms caused navy doctors to refer him to a psychiatrist, and in January 1971 he was examined by Dr McGeorge. He was thereafter reviewed by Dr McGeorge on a number of occasions. He was also referred for examination by a psychologist, Mr Van Daatselaar, in March 1971. The navy doctors themselves continued to assess Mr Smith for the purposes of referral for review. In July 1972 Mr Smith was examined by Dr P M Gill, a consultant psychiatrist, “[f]or review prior disengagement in August”. According to the psychiatrists’ and doctors’ notes and reports, phobias (at one point “secondary to neurotic personality”) and anxiety depression were diagnosed. Mr Van Daatselaar’s notes included that Dr McGeorge “is partly close if he called it an anxiety state with depressive features”, and that Mr Smith was “emotionally disturbed to a moderate or serious degree”. None of the notes or reports linked Mr Smith’s condition with the collision. As has been seen, Dr Marinovich did not express the link, and Dr Parkin’s report was not clear in that respect.

Ratio Decidendi

Legal Principle Established

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