Commonwealth v Nelson

The appeal in *Commonwealth v Nelson* concerned an application for an extension of time under section 60G of the *Limitation Act 1969* (NSW). The applicant sought to bring a claim for damages for post-traumatic stress disorder. The central dispute revolved around whether the applicant was aware, or ought to have been aware, of the "nature and extent of the injury" more than three years prior to making the application to extend time.

The court was required to determine two primary legal issues. Firstly, whether the applicant's awareness of certain symptoms constituted awareness of the "nature and extent of the injury" for the purposes of the limitation period, even in the absence of a formal diagnosis of post-traumatic stress disorder. Secondly, the court had to consider the proper exercise of the discretion granted under section 60G(2) of the *Limitation Act*, including what factors were relevant to the applicant's knowledge or constructive knowledge regarding the nature and extent of their injury.

The court reasoned that mere awareness of symptoms, without an understanding of their nature and extent as constituting a specific injury like post-traumatic stress disorder, was insufficient to trigger the limitation period. The principles applied focused on the applicant's subjective and objective knowledge of the injury's character and impact. The court found that the primary judge had erred in exercising the discretion under section 60G(2). Consequently, the application for leave to appeal was granted, the appeal was allowed, and the orders made by the District Court granting the extension of time were set aside, with the opponent's notice of motion being dismissed.