Commonwealth of Australia v Smith

The Commonwealth of Australia appealed a decision of the primary judge who had granted an extension of time for Mr. Smith to bring an action for damages arising from psychological injuries sustained during the collision between HMAS Melbourne and HMAS Voyager in 1964. Mr. Smith, a radio operator on the HMAS Melbourne, witnessed the collision and its aftermath, including the sinking of the HMAS Voyager and the rescue of survivors. He was subsequently instructed, along with other crew members, not to discuss the incident and to forget about it.

The central legal issues before the court were whether Mr. Smith had satisfied the requirements of sections 60G and 60I of the *Limitation Act 1969* (NSW) for an extension of the limitation period, specifically concerning his awareness of the nature of his mental injury, and whether the primary judge had erred in exercising their discretion to grant such an extension. The Commonwealth argued that Mr. Smith ought to have been aware of his injuries much earlier than he claimed, and that the passage of time had prejudiced its ability to defend the claim due to the loss of records and the difficulty in disentangling potential causes for Mr. Smith's alleged conditions.

The court considered the evidence regarding Mr. Smith's psychological state, including the opinion of a psychologist who diagnosed him with Post Traumatic Stress Disorder with delayed onset, attributed to the collision and the subsequent instructions to remain silent. The primary judge had found Mr. Smith to be an honest witness and accepted the psychologist's opinion. However, the appellate court found that Mr. Smith had not established that he had made his application within three years of the time he ought to have become aware of his personal injury, as required by section 60I(1)(b). Consequently, the court did not need to definitively rule on the discretionary considerations under section 60G(2), as the threshold requirement of section 60I(1)(b) had not been met.

The appeal was dismissed, and the Commonwealth was ordered to pay the costs of the respondent on appeal.