Duncan v Commonwealth of Australia [2006] NSWSC 529

New South Wales Supreme Court

CITATION : Duncan v Commonwealth of Australia [2006] NSWSC 529

HEARING DATE(S) : 17/5/06

JUDGMENT DATE : 7 June 2006

JUDGMENT OF : Bell J at 1

DECISION : 1.Pursuant to s 60G(2) of the Limitation Act 1969 (NSW) the limitation period for the cause of action in this proceeding is extended to the date on which the statement of claim was filed; 2. The proceedings may be re-listed by arrangement with my Associate for submissions on costs.

LEGISLATION CITED : Limitation Act 1969 Limitation of Actions Act 1623 (Imp)

Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 CASES CITED : CRA Ltd v Martignago (1995) 39 NSWLR 13 Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128 Telstra Corporation v Reay [2002] NSWCA 49

PARTIES : Gordon Ian Duncan (Applicant) Commonwealth of Australia (Respondent)

FILE NUMBER(S) : SC 20186/00

COUNSEL : J Sharpe (Applicant) R J Burbidge QC / D Brogan (Respondent)

SOLICITORS : Hollows Solicitors (Applicant) Australian Government Solicitors (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Wednesday 7 June 2006

20186/00 Gordon Ian Duncan v Commonwealth of Australia

JUDGMENT 1 BELL J: The applicant moves on notice of motion for an order pursuant to s 60G of the Limitation Act 1969 that the cause of action pleaded in his statement of claim filed on 22 May 2000 be extended for such period as the Court determines. 2 The applicant was a naval rating on board HMAS Melbourne on 10 February 1964 at the time of its collision with HMAS Voyager. Arising out of that event he pleads his cause of action in negligence claiming damages for psychiatric injury. His injuries are particularised as follows: Severe shock; Severe anxiety and depression; Panic attacks with claustrophobia; Intense fear of going to sea; Difficulties with sleeping, nightmares and flashbacks; Irritability, fatigue, headaches; Difficulty in concentrating, making decisions and solving problems; Mood swings, frustration, isolation and reduced ability to engage in sexual intercourse; Chronic post-traumatic stress disorder with numerous re-experiencing symptoms, avoidance symptoms and arousal symptoms; Emotional detachment, insecurity and lack of confidence; Attempt to medicate himself by heavy use of alcohol and tobacco with consequential impairment of body function; Hypertension; Acid reflux. 3 The applicant claims damages, including for economic loss and the loss of the chance to have qualified for Defence Force Retirement Benefit entitlements. 4 The applicant was born on 18 April 1947. He was aged sixteen years at the date of the collision. The limitation period under the Limitation of Actions Act 1623 (Imp) that applied to his cause of action expired on 18 April 1971. 5 The applicant must bring himself within the threshold requirements of s 60I(1) of the Act before the Court may make the order that is sought. Section 60I(1) provides as follows: (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) The plaintiff (i) did not know that personal injury had been suffered or