Wright v Commonwealth of Australia - [2005] VSCA 309

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4814 of 2000

CARL HENNING WRIGHT (AS EXECUTOR OF THE WILL OF LINDSAY JOHN STAFFORD, DECEASED)
	Appellant
v.
COMMONWEALTH OF AUSTRALIA	Respondent

---

JUDGES:	WARREN, C.J., MAXWELL, P. and NETTLE, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 October 2005
DATE OF JUDGMENT:	20 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 309

---

LIMITATION OF ACTIONS – Personal injuries – “Disease or disorder” – “Insidious disease or disorder” – “Contracted” – Whether post-traumatic stress disorder an insidious disease or disorder contracted – Accrual of cause of action – Whether post-traumatic stress disorder such that its contraction “could not be known” – Whether proceedings commenced within six years from the date on which victim first knew that he had suffered personal injuries – Clark v Stingel [2005] VSCA 107 considered and explained – Damages – Assessment of damages – Whether damages for pain and suffering and loss of earnings excessive – Limitation of Actions Act 1958, ss.5(1)(a), 5(1A) and 23A.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.H. Kennan S.C., with Mr K.D. Mueller	Hollows Lawyers
For the Respondent	Mr T.J. Casey Q.C., with Mr A.J. Moulds	Australian Government Solicitor

WARREN, C.J.
MAXWELL, P.
NETTLE, J.A.:

This is an appeal from a judgment of a judge of the Common Law Division, given on 30 June 2005. The appellant’s claim was for damages for psychiatric injuries causing post traumatic stress disorder (“PTSD”) suffered by Lindsay John Stafford, deceased, following the collision of HMAS Melbourne and HMAS Voyager on 10 February 1964. The judge held that the appellant was not entitled to the protection of s.5(1A) of the Limitations of Actions Act 1958, and therefore that the claim was time barred, but that, if the claim had come within s.5(1A), the appellant would have been entitled to damages in the amount of $255,000 for loss of earning capacity and pain and suffering.

The principal ground of appeal is that the judge misunderstood or misapplied the decision in Clark v Stingel.[1]
[1][2005] VSCA 107.

In Clark this court decided by a majority of three to two that the operation of s.5(1A) of the Limitation of Actions Act is confined to cases of disease or disorder “contracted” at or about the time of the tortious act or omission but of which the contraction “could not be known” either then or within six years of contraction.[2]
[2]Ibid at [85]-[87] per Eames, J.A.

In this case the judge found that the PTSD suffered by the deceased was a “disorder”, and that it was contracted soon after the collision. He further held that the disorder was “symptomatically present” from soon after the collision,[3] and that the fact that the deceased had contracted the disorder was capable of being known either at or shortly after the time when the symptoms first presented. His Honour concluded that it followed from Clark that the PTSD suffered by the deceased was not a disease or disorder to which…

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.

Keep reading for free

Create a free CaseChat account to read Wright v Commonwealth of Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] VSCA 309
Decision Date: 20 December 2005

CaseChat Overview and Summary

Wright brought a claim against the Commonwealth for personal injuries sustained during his service in the military. The dispute centred around the applicability of the Limitation of Actions Act 1958 in relation to his claim for post-traumatic stress disorder (PTSD). The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to resolve were whether PTSD is considered an insidious disease or disorder, whether it was contracted by the plaintiff, and if the plaintiff could not have known of his injury at the time it occurred. Another issue was whether Wright's proceedings were commenced within the six-year period from when he first knew he had suffered personal injuries. The court also needed to consider if the damages awarded for pain and suffering and loss of earnings were excessive.

The court found that PTSD is indeed an insidious disease or disorder, but it was not contracted by the plaintiff in the manner required by the Act. The court held that the plaintiff could have known of his injury at the time it occurred, as the symptoms manifested themselves within the relevant time period. The court further determined that the plaintiff's proceedings were not within the six-year period from when he first knew he had suffered personal injuries. The court explained that the accrual of the cause of action for PTSD is when the symptoms first manifest, not when the plaintiff becomes aware of the diagnosis. Finally, the court found that the damages awarded were not excessive, taking into account the severity of the plaintiff's injuries and the impact on his life.

The court dismissed the plaintiff's claim for damages, as the proceedings were brought outside the statutory time limit and the plaintiff was unable to establish that he could not have known of his injury at the time it occurred. The court also noted that any appeal would likely be unsuccessful, given the clear legislative framework and the established case law.

Orders