Winston v Commonwealth of Australia

Winston sued the Commonwealth over psychological injuries arising from a 1969 collision between HMAS Melbourne and USS Evans. The dispute involved whether the applicant was unaware of the connection between his injuries and the Commonwealth's actions at the expiration of the relevant limitation period, or at a time before that expiration when proceedings might reasonably have been instituted. The applicant contended that he did not become aware of the connection between his psychological injuries and the collision until well after the statutory limitation period had expired.

The court needed to determine whether the applicant was unaware of the connection between the personal injury and the Commonwealth'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. It also needed to decide whether the application was made within three years after the applicant became aware (or ought to have become aware) of the matters listed in section 60I(1)(a)(iii) of the Limitation Act 1969 (NSW), and whether it was just and reasonable to extend time.

The court held that the applicant was unaware of the connection between his psychological injuries and the collision until well after the statutory limitation period had expired. The applicant's condition was diagnosed as PTSD, which is a relatively new diagnosis. The court found that it was just and reasonable to extend time under section 60I(1)(a)(iii) and (b) and 60G of the Limitation Act 1969 (NSW). The applicant's PTSD diagnosis was not made until 2017, long after the limitation period had expired. The court found that the applicant had exercised reasonable diligence in investigating his condition and that it was just and reasonable to extend time. The court granted the application to extend time.

The court ordered that the applicant's claim be heard, despite the limitation period having expired, due to the applicant's unawareness of the connection between his injuries and the collision until well after the limitation period had expired. The court also found that it was just and reasonable to extend time under the Limitation Act 1969 (NSW).