Stephen Charles Chaney v Commonwealth of Australia [2005] NSWSC 92

New South Wales Supreme Court

CITATION : Stephen Charles Chaney v Commonwealth of Australia [2005] NSWSC 92

HEARING DATE(S) : 16 -24/9/03, 15/12/03, 15-16/12/03, 20/02/04 (further written submissions)

JUDGMENT DATE : 25 February 2005

JUDGMENT OF : Howie J at 1

DECISION : Verdict for the defendant and plaintiff to pay the defendant's costs.

CATCHWORDS : Personal injury claim by soldier injured in army training - Liability of Commonwealth not established - No matter of principle.

Fox v Percy (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401 CASES CITED : Lustre Hosiery Limited v York [1935] 54 CLR 134 Hill v Commonwealth [2003] NSWSC 1025 Spiteri v Commonwealth [2003] NSWSC 391

PARTIES : Stephen Charles Chaney v Commonwealth of Australia

FILE NUMBER(S) : SC 13256/88

P. Webb QC with F. Tuscano - Plaintiff COUNSEL : R. Williams QC with B. Skinner - Defendant

Walker Smith, Solicitors - Plaintiff SOLICITORS : Australian Government Solicitor - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 25 FEBRUARY 2005

13256/88 STEPHEN CHARLES CHANEY v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: On 5 November 1982 the plaintiff, Stephen Charles Chaney, then aged 21, was a soldier in the Australian Army engaged in physical training with members of his unit on South Melbourne Beach. With other soldiers he swam and ran along the beach before being called upon to participate in a supervised exercise in which he was required to carry a fellow soldier on his back a certain distance up the beach and return. He claims that, just as he was positioning himself to take the weight of the person who was to be his partner, a soldier jumped on him without warning and occasioned an injury or injuries from which he still suffers and for which he seeks damages from the defendant, the Commonwealth of Australia. 2 The plaintiff claims that the Commonwealth is liable for the injuries occasioned to him in the course of his employment, that being as an enlisted soldier with the Australian Regular Army. The plaintiff complains of constant back, neck and head pain and urological difficulties. It is alleged that the defendant, by its servants or agents, being those army personnel of higher rank than the plaintiff and who were responsible for the conduct of the training at the beach, breached the duty owed to the plaintiff to take reasonable care for his safety by failing to provide "a proper and safe system of conducting its operations and sufficient supervision of the same". 3 There is no dispute that the Commonwealth owed the plaintiff a duty of care in relation to the conduct of the physical training in which he was involved on the beach. There is no dispute that the plaintiff was injured to some extent during the course of the exercise in which he was taking part on the beach, referred to by the plaintiff as "a piggyback" or, more appropriately, "a Fireman's carry". The Commonwealth, however, contends that the Court would not be satisfied that the plaintiff's account of the incident, said to have been the cause of his present physical and mental condition, is reliable. It also takes issue with the extent of any injuries that the plaintiff has suffered or now suffers as a result of the incident occurring at South Melbourne Beach