Burke v State of New South Wales & Ors [2004] NSWSC 725

New South Wales Supreme Court

CITATION : Burke v State of New South Wales & Ors [2004] NSWSC 725 HEARING DATE(S) : 12 November 2003, 24 March 2004, 9 August 2004 JUDGMENT DATE : 3 September 2004 JURISDICTION: Common Law JUDGMENT OF : Master Malpass at 1 DECISION : The notice of motion is dismissed; the plaintiff is to pay the costs of the notice of motion; the exhibits may be returned.

CATCHWORDS : Extension of limitation period - pure mental harm - statutory prohibition to recovery of damages - plaintiff must have witnessed victim at the scene being killed, injured or put in peril - meaning of statutory terminology - delay and explanation for delay - conscious decision not to sue - prejudice and fair trial unlikely. LEGISLATION CITED : Civil Liability Amendment (Personal Responsibility) Act 2002, Pt 3 s28, s30, s30(1), s30(2)(a) Limitation Act 1969, s60C, s60E CASES CITED : Itek Graphix Pty Ltd v Elliot [2002] NSWCA 104 Tame v State of New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35 Anthony John Burke (Plaintiff) PARTIES : State of New South Wales (First Defendant) Roads & Traffic Authority (Second Defendant) Lend Lease Corporation (Third Defendant) FILE NUMBER(S) : SC 20509/02 COUNSEL : Ms S Norton SC, Ms A Healey (Plaintiff) Mr P Garling SC, Ms C Webster (Defendants) Stacks - the Law Firm (Plaintiff) SOLICITORS : Frances Allpress (First and Second Defendants) Freehills (Third Defendant)

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