Pearce v Commonwealth of Australia [2005] NSWSC 359

New South Wales Supreme Court

CITATION : Pearce v Commonwealth of Australia [2005] NSWSC 359

HEARING DATE(S) : 12,13 April 2005

JUDGMENT DATE : 5 May 2005

JURISDICTION : Civil

JUDGMENT OF : Cooper AJ at 1

DECISION : 1 That the Notion of Motion is dismissed; 2 That the applicant pay the respondent's costs of the Notice of Motion

CATCHWORDS : Extension of time under s 60G of the Limitation Act 1969 - HMAS Melbourne - Voyager collison - Issue of prejudice

LEGISLATION CITED : Limitation Act 1969

Mount Isa Mines v Pusey 125 CLR 383 CASES CITED : The Commonwealth v Dinnison No NG 159 of 1994

Russell Henry Pearce PARTIES : The Commonwealth of Australia

FILE NUMBER(S) : SC 20848 of 2001

G Parker (Plaintiff) COUNSEL : D J Brogan (Defendant)

Hollows Lawyers Melbourne SOLICITORS : Blake Dawson Waldron Sydney

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST

ACTING JUSTICE COOPER

5 May 2005

20848 OF 2001

RUSSELL HENRY PEARCE v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 COOPER AJ: This is a Notice of Motion by a former member of the crew of HMAS Melbourne who claims that he suffered psychiatric injury as the result of the collision between that vessel and HMAS Voyager on the night of 10 February 1964. By his Notice of Motion filed on 24 October 2001 he seeks an order pursuant to s 60G of the Limitation Act that the limitation period for the cause of action be extended to enable him to commence the present action. 2 By his Statement of Claim filed on the same day he alleges that the collision between the two vessels was caused by the negligence of a person or persons for whom the Commonwealth is liable. He further alleges that as a result of the collision he sustained psychiatric injuries including severe shock, severe anxiety and depression, difficulties with sleeping, nightmares and night sweats, irritability and fatigue, difficulty in concentrating and making decisions and solving problems, mood swings, frustration and isolation and Post Traumatic Stress Disorder with avoidance symptoms and arousal symptoms. He also alleges that he attempted to medicate himself by heavy use of alcohol and has an anxiety disorder, an adjustment disorder and diminished sexual disorder. 3 He also claims that had the collision not occurred it is likely that he would have risen to a commissioned rank and remained in the Navy until retirement at or about the age of 55 and would have received appropriate Defence Forces Retirement Benefit entitlements and other service benefits. He claims that because of the injuries he has lost earnings. 4 By its Grounds of Defence the Commonwealth admits that the collision was due to negligence of persons for whom it is responsible. It denies that the collision caused any resulting injuries or losses to the plaintiff. It further claims that if any injury and or damage were suffered by the plaintiff, they were too remote to be a proper basis for recovery of damages and that the injury and damage was of a different kind from that which was reasonably foreseeable. In addition, it alleges that the plaintiff failed to mitigate his losses. 5 It can be seen, therefore, that if the matter were to proceed to trial there would be no issue as to the actual cause of the collision between the two vessels but the issues to be determined would be limited to the damages, if any, caused by such collision.