Ramsay v Commonwealth of Australia - [2006] NSWSC 1389

CITATION: Ramsay v Commonwealth of Australia [2006] NSWSC 1389

HEARING DATE(S): 21/11/06, 22/11/06, 23/11/06

JUDGMENT DATE :
14 December 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Pursuant to s 60G(2) of the Limitation Act 1969 the limitation period for the cause of action in this proceeding is extended to 20 March 2002; 2. The costs of the applicant’s application are costs in the cause.

LEGISLATION CITED: Limitation Act 1969
Veterans’ Entitlements Act 1986 (Cth)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541
Commonwealth of Australia v Shaw [2006] NSWCA 209
Commonwealth of Australia v Smith [2005] NSWCA 478
Purkess v Crittenden (1965) 114 CLR 164
Telstra Corporation v Rea; Smith per Santow JA at [103]
Watts v Rake (1960) 108 CLR 158

PARTIES: Donald Maxwell Ramsay (Applicant)
Commonwealth of Australia (Respondent)

FILE NUMBER(S): SC 20094/02

COUNSEL: D Priestley (Applicant)
S A Woods (Respondent)

SOLICITORS: Hollows Lawyers (Applicant)
Blake Dawson Waldron (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 14 December 2006

20094/02 Donald Maxwell Ramsay v Commonwealth of Australia
JUDGMENT

1 BELL J: This is an application to extend the limitation period to permit the applicant to bring proceedings against the defendant (the Commonwealth) for damages for psychiatric injury arising out of the Melbourne/Voyager collision.

2 The applicant’s statement of claim was filed on 20 March 2002. A notice of motion claiming an order under s 60G of the Limitation Act 1969 (NSW) (the Act), that the limitation period for the cause of action in the proceeding be extended for such period as the Court determines, was filed at the same time as the statement of claim.

3 The applicant was born on 1 November 1943. The collision occurred on 10 February 1964. The limitation period for his cause of action expired on 11 February 1970.

4 The applicant pleads the following particulars of injury in his statement of claim:

(a) severe shock;

(b) severe anxiety and depression;

(d) difficulties with sleeping, nightmares and flashbacks;

(e) irritability and fatigue;

(f) night sweats;

(g) difficulty in concentrating;

(h) moods swings, frustration and isolation;

(i) post-traumatic stress disorder;

(j) emotional detachment, insecurity and lack of confidence;

(k) attempts to medicate himself by heavy use of alcohol with consequential impairment of body function;

(l) hypertension;

(m) acid reflux;

(n) anxiety disorder;

(o) generalised anxiety disorder;

(p) panic attacks;

(q) adjustment disorder;

(r) reduced ability to engage in sexual intercourse;

(s) obesity.

5 It is the applicant’s claim that, but for the collision and the psychiatric injury that he sustained as a result thereof, he would have attained commissioned rank in the Royal Australian Navy (the Navy) and remained in the service until retirement at the age of 55 years. His claim for damages includes for economic loss by reason of impairment of his capacity to earn income and he claims damages for the lost chance that he would have remained in the Navy until qualifying for…

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: [2006] NSWSC 1389
Decision Date: 14 December 2006

CaseChat Overview and Summary

In this case, Donald Maxwell Ramsay sought to bring proceedings against the Commonwealth for damages for psychiatric injury that he sustained as a result of the Melbourne/Voyager collision. The applicant's statement of claim and a notice of motion claiming an order under s 60G of the Limitation Act 1969 (NSW) were filed on 20 March 2002. Ramsay was born on 1 November 1943, and the collision occurred on 10 February 1964, meaning the limitation period for his cause of action expired on 11 February 1970. The applicant's statement of claim included particulars of injury, such as severe shock, severe anxiety and depression, and post-traumatic stress disorder (PTSD), among others. Ramsay claimed that, but for the collision and the psychiatric injury he sustained as a result, he would have attained commissioned rank in the Royal Australian Navy and remained in the service until retirement at the age of 55 years.

The legal issues the court was required to decide were whether the applicant had satisfied the threshold test posed by s 60I(1) of the Act and whether it was just and reasonable to order that the limitation period for his cause of action be extended. The applicant had to establish that it was just and reasonable for the Court to order that the limitation period for his cause of action be extended. Before the Court could consider this question, the applicant had to satisfy the threshold test in s 60I(1) of the Act, which required the plaintiff to demonstrate that they did not know that personal injury had been suffered, were unaware of the nature or extent of personal injury suffered, or were unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted. Additionally, the application had to be made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in s 60I(1)(a) (i)–(iii).

The court found that Ramsay had satisfied the threshold test posed by s 60I(1) of the Act. The applicant did not know that he had suffered psychiatric injury until he consulted Dr Bob Anderson. Although he knew he had nightmares, drank and smoked heavily, and was irritable, he believed these were features of his personality. The court was satisfied that Ramsay did not know or was unaware of each of the matters in paragraph (a)(i)–(iii) at the expiration of the limitation period and that he brought the application within three years after he became aware of all three matters.

Regarding whether it was just and reasonable to order that the limitation period for his cause of action be extended, the court concluded that a fair trial may still be held between the applicant and the Commonwealth and that the Commonwealth would not suffer significant prejudice in its defence. The court was persuaded that it was just and reasonable to extend the limitation period to allow the applicant to bring his claim against the Commonwealth arising out of its admitted negligence.

As a result, the court made two orders. Firstly, pursuant to s 60G(2) of the Limitation Act 1969, the limitation period for the cause of action in this proceeding was extended to 20 March 2002. Secondly, the costs of the applicant's application were costs in the cause.

Orders