Smith v The Commonwealth - [2004] NSWSC 873

CITATION: Smith v The Commonwealth of Australia [2004] NSWSC 873

HEARING DATE(S): 31 August 2004, 1 September 2004

JUDGMENT DATE:
23 September 2004

JUDGMENT OF: Barr J at 1

DECISION: Limitation period extended to 12 September 2001.; The defendant to pay the plaintiff's costs.

PARTIES :
Neil Patrick SMITH v The Commonwealth of Australia

FILE NUMBER(S): SC 20766/01

COUNSEL: Plaintiff: J L Sharpe
Defendant: B Toomey QC

SOLICITORS: Plaintiff: Brian Muir & Co
Defendant: Australian Government Solicitor

- 25 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

GRAHAM BARR J

23 September 2004

20766/01 NEIL PATRICK SMITH v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: This is an application by Neil Patrick Smith for an extension of time within which to bring proceedings against the Commonwealth of Australia (“the Commonwealth”) to recover damages for personal injury he says he sustained as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. Mr Smith was a member of the crew of the Melbourne.

2 By s14 Limitation Act 1969 a cause of action founded on tort, as this one is, is not maintainable if brought after the expiration of a period of six years running from the date on which the cause of action first accrues. The statement of claim was filed after the expiration of that period.

3 By s60G the Court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. By s60I -

(1) A court may not make an order under section 60G unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was 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, and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a) (i)–(iii).

The plaintiff’s case

4 The Commonwealth has admitted that the collision was caused by its negligence. Accordingly, if Mr Smith obtains the leave he seeks, the enquiry will be about whether he suffered damage and, if so, what damage and how he ought to be compensated.

5 Mr Smith pleads the relevant part of his case as follows. This is paragraph 6 of the statement of claim-

As a result of the collision the plaintiff was injured and he has suffered loss and damage aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following-

PARTICULARS OF INJURY

a) Severe shock;

b) Severe anxiety and depression;

c) Claustrophobia;

d) Fear of flying;

e) Difficulties with sleeping, nightmares and night sweats;

f) Irritability, fatigue…

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 Smith v The Commonwealth

Details

AGLC: Smith v The Commonwealth [2004] NSWSC 873
Case: [2004] NSWSC 873
Decision Date: 23 September 2004

CaseChat Overview and Summary

Neil Patrick Smith, a former member of the Royal Australian Navy, brought an action against the Commonwealth of Australia, alleging that he suffered personal injury as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. The court was required to decide whether the limitation period for Mr Smith's cause of action should be extended under section 60G of the Limitation Act 1969. The court also had to determine whether it was just and reasonable to extend the limitation period, considering the potential prejudice to the Commonwealth if the extension was granted.

The court found that Mr Smith did not know that he had suffered an injury until he received advice from Dr Morris in 2001, and therefore, he was unaware of the nature and extent of the injury as well as the connection between the injury and the collision. The court held that it was just and reasonable to extend the limitation period, as the Commonwealth had not lost any significant evidence that would prejudice its case. The court granted the extension of time and ordered the defendant to pay the plaintiff's costs.

Orders