Spaulding v Commonwealth of Australia - [2006] NSWSC 29

CITATION: Spaulding v Commonwealth of Australia [2006] NSWSC 29

HEARING DATE(S): 12/12/05, 13/12/05, 14/12/05

JUDGMENT DATE :
10 February 2006

JUDGMENT OF: Bell J at 1

DECISION: Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed.

LEGISLATION CITED: Limitation Act 1969
Limitation of Actions Act 1623 (Imp)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia v Smith [2005] NSWCA 478
McLean v Sydney Water Corp [2001] NSWCA 122
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477
Telstra Corporation v Rea [2002] NSWCA 49

PARTIES: Barry Thomas Edward Spaulding v Commonwealth of Australia

FILE NUMBER(S): SC 20768/01

COUNSEL: John Sharpe (Plaintiff)
G Laughton SC / D Brogan (Defendant)

SOLICITORS:
Hollows Solicitors (Plaintiff)
Australian Government Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 10 February 2006

20768/01 Barry Thomas Edward Spaulding v Commonwealth of Australia
JUDGMENT

1 BELL J: The applicant was a member of the crew of HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager. He seeks to bring a claim in negligence against the Commonwealth for damages for personal injury arising out of the collision. This is an application brought pursuant to s 60G of the Limitation Act 1969 (NSW) (the Act) that the limitation period for the cause of action be extended for such period as the court determines.

2 The notice of motion seeking the extension of time and the applicant’s statement of claim were filed on 12 September 2001.

3 The respondent, the Commonwealth of Australia, opposes the extension of the limitation period, submitting that the applicant has not brought himself within the threshold requirements of s 60I of the Act and, in the event that he has, that it is not just and reasonable to grant the extension that is sought.

4 The applicant was born on 4 July 1931. The six-year limitation period under the Limitation of Actions Act 1623 (Imp) that applied to his cause of action expired on 11 February 1970.

5 The applicant pleads the following particulars of injury:

(a) Severe shock;

(b) severe anxiety and depression;

(d) difficulties with sleeping, nightmares and night sweats;

(e) irritability and fatigue;

(f) sexual impotence;

(g) difficultly in concentrating, making decisions and solving problems;

(h) mood swings, frustration and isolation;

(i) obsessive compulsive behaviour;

(j) chronic post-traumatic stress disorder (PTSD) with avoidance symptoms and arousal symptoms;

(k) emotional detachment;

(l) attempts to medicate himself by heavy use of alcohol and tobacco with consequential impairment of body function (tobacco addiction ceased 1988 approximately);

(m) hypertension;

(n) acid reflux and indigestion;

(o) body sweats;

(p) irritable bowel syndrome;

(q) high cholesterol;

(r) ulcers;

(s) ischaemic heart disease;

(t) alcohol dependence.

6 It is the applicant’s case that, but for the collision and…

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 29
Decision Date: 10 February 2006

CaseChat Overview and Summary

Barry Thomas Edward Spaulding is a former member of the crew of HMAS Melbourne who seeks damages from the Commonwealth of Australia for injuries he sustained in a collision with HMAS Voyager in 1964. This was an application brought pursuant to s 60G of the Limitation Act 1969 (NSW) that the limitation period for the cause of action be extended for such period as the court determines. The Commonwealth opposed the extension, submitting that Mr Spaulding had not brought himself within the threshold requirements of s 60I of the Act and, in the event that he had, that it was not just and reasonable to grant the extension that is sought. Bell J found that Mr Spaulding was not precluded by operation of s 60I from obtaining an order extending time pursuant to s 60G. Bell J concluded that it was just and reasonable that time should be extended in the circumstances of this case. The limitation period for the cause of action in this proceeding was extended to the date on which the statement of claim was filed.

Orders