Burns v Commonwealth [1999] NSWSC 223

New South Wales Supreme Court CITATION : Burns v Commonwealth [1999] NSWSC 223 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21239/95 HEARING DATE(S) : 17 March 1999 JUDGMENT DATE : 23 March 1999

Warwick Thomas Burns (Plaintiff) PARTIES : v The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : P - Mr M Joseph SC, Mr M Brabazon D - Mr T J Morahan SOLICITORS : P - James Taylor & Co D - Australian Government Solicitor CATCHWORDS : Extend limitation period; prejudice ACTS CITED : Limitation Act 1969, ss 60G, 60I CASES CITED : Darcy v Commonwealth of Aust (25.7.97) Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 DECISION : Extension granted

- 5 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

23 March 1999

21239/95 - Burns v The Commonwealth of Australia

JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 29 November 1995. The plaintiff claims damages for personal injury. A cause of action founded on negligence is alleged. 2 The defendant has filed both a Notice of Appearance and a Defence. There are a number of defences (including a defence founded on the provisions of the Limitation Act, 1969 (the Act)). 3 A Notice of Motion was filed on 6 December 1995. It seeks, inter alia, an order extending the relevant limitation period. The order is sought pursuant to section 60G of the Act. 4 The plaintiff has sworn an affidavit. On 10 February 1964, he was a member of the crew of HMAS Melbourne when it collided with HMAS Voyager. The Court has previously dealt with and granted many applications arising out of that collision. 5 The affidavit contains, inter alia, the following:- "6. At the time of the collision I was in the starboard seaboat space waiting to go on watch. The HMAS Melbourne was in darkness I was suddenly pitched forward in the darkness. I thought a plane had gone over the side. I then saw the outline of the stern section of the Voyager scrape down the starboard side. I was standing under the lifeboat and the superstructure of the Voyager struck the lifeboat above my head. I was paralysed with fear and lost all body sensation. I thought the Voyager would explode. I called out to shipmates to stand back. I climbed into the lifeboat and called to the Sick Bay attendant to get into the boat. No-one knew how to get the boat into the water. I felt useless and waited for the boat crew to come along and lower it. I was then told to get out of the boat and they took over. I then helped put scrambling nets over the side and helped survivors getting up on the nets. I helped with blankets for the survivors and was told to take buckets of hot water to the hangar which had been set up as a sick bay. When I got there and saw all of the survivors covered in oil I could not handle it and I put the buckets down and left. One of my friends Barry Lane also known as Barry Sharkey was on the Voyager and I later learned he had been killed. This affected me greatly. I had only been at sea for two nights when the collision occurred.