Commonwealth v Verwayen [1990] HCA 39

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Commonwealth v Verwayen [1990] HCA 39

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 5 Mason C.J.

On the night of 10 February 1964 a collision took place between H.M.A.S. Voyager and H.M.A.S. Melbourne upon the high seas in the vicinity of Jervis Bay. The respondent was at the time a member of the Royal Australian Navy serving on board H.M.A.S. Voyager. He is one of a number of people who subsequently brought actions against the Commonwealth for damages for injuries sustained as a result of the collision, alleging that their respective injuries had been caused by the negligence of the officers and crew of one or both of the ships.

It is not necessary for present purposes to describe in detail the circumstances surrounding the collision. It is convenient instead to set out the history of the ensuing litigation between the respondent and the Commonwealth. The most significant aspect of that history is that the respondent did not issue a statement of claim until 2 November 1984. The reason for this delay appears to have been that legal opinion after the time of the collision was influenced by certain remarks made by Windeyer J., by way of obiter, in Parker v. The Commonwealth [1] , to the effect that, for reasons of public policy, a member of the armed forces could not recover damages for the negligence of another member of the armed forces in the course of duty. Those remarks were disapproved by the Court inGroves v. The Commonwealth [2] . That decision broadened the ambit of the law of negligence in the context of the activities of members of the armed forces.

1. (1965) 112 C.L.R. 295, at pp. 301-302. 2. (1982) 150 C.L.R. 113, at pp. 118-119, 133-134, 136, 137.