Smith v The Commonwealth of Australia [2004] NSWSC 873

New South Wales Supreme Court

CITATION : Smith v The Commonwealth of Australia [2004] NSWSC 873 HEARING DATE(S) : 31 August 2004, 1 September 2004 JUDGMENT DATE : 23 September 2004

JUDGMENT OF : Barr J at 1 DECISION : Limitation period extended to 12 September 2001.; The defendant to pay the plaintiff's costs.

PARTIES : Neil Patrick SMITH v The Commonwealth of Australia FILE NUMBER(S) : SC 20766/01 COUNSEL : Plaintiff: J L Sharpe Defendant: B Toomey QC SOLICITORS : Plaintiff: Brian Muir & Co Defendant: Australian Government Solicitor

- 25 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

23 September 2004

20766/01 NEIL PATRICK SMITH v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: This is an application by Neil Patrick Smith for an extension of time within which to bring proceedings against the Commonwealth of Australia ("the Commonwealth") to recover damages for personal injury he says he sustained as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. Mr Smith was a member of the crew of the Melbourne. 2 By s14 Limitation Act 1969 a cause of action founded on tort, as this one is, is not maintainable if brought after the expiration of a period of six years running from the date on which the cause of action first accrues. The statement of claim was filed after the expiration of that period. 3 By s60G the Court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. By s60I - (1) A court may not make an order under section 60G unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a) (i)–(iii). The plaintiff's case 4 The Commonwealth has admitted that the collision was caused by its negligence. Accordingly, if Mr Smith obtains the leave he seeks, the enquiry will be about whether he suffered damage and, if so, what damage and how he ought to be compensated. 5 Mr Smith pleads the relevant part of his case as follows. This is paragraph 6 of the statement of claim- As a result of the collision the plaintiff was injured and he has suffered loss and damage aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following- PARTICULARS OF INJURY a) Severe shock; b) Severe anxiety and depression; c) Claustrophobia; d) Fear of flying; e) Difficulties with sleeping, nightmares and night sweats; f) Irritability, fatigue and headaches; g) Sexual impotence; h) Difficulty in concentrating, making decisions and solving problems; i) Mood swings, frustration and isolation; j) Obsessive compulsive behaviour; k ) Chronic post-traumatic stress disorder with numerous re-experiencing symptoms, avoidance symptoms and arousal symptoms; l) Emotional detachment, insecurity and lack of confidence; m) Attempts to medicate himself by heavy use of alcohol (to 1997 approximately) with consequential impairment of body function; n) Hypertension; o) Acid reflux; p) Chest pain; q ) Stomach discomfort; r) Dysphoria; s) Cold sweats; t) Ulcer; u) Heart Condition.