Spaulding v Commonwealth of Australia [2006] NSWSC 29

New South Wales Supreme Court

CITATION : Spaulding v Commonwealth of Australia [2006] NSWSC 29

HEARING DATE(S) : 12/12/05, 13/12/05, 14/12/05

JUDGMENT DATE : 10 February 2006

JUDGMENT OF : Bell J at 1

DECISION : 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.

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

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 CASES CITED : McLean v Sydney Water Corp [2001] NSWCA 122 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Telstra Corporation v Rea [2002] NSWCA 49

PARTIES : Barry Thomas Edward Spaulding v Commonwealth of Australia

FILE NUMBER(S) : SC 20768/01

COUNSEL : John Sharpe (Plaintiff) G Laughton SC / D Brogan (Defendant)

Hollows Solicitors (Plaintiff) SOLICITORS : Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 10 February 2006

20768/01 Barry Thomas Edward Spaulding v Commonwealth of Australia

JUDGMENT 1 BELL J: The applicant was a member of the crew of HMAS Melbourne on 10 February 1964 when it collided with HMAS Voyager. He seeks to bring a claim in negligence against the Commonwealth for damages for personal injury arising out of the collision. This is an application brought pursuant to s 60G of the Limitation Act 1969 (NSW) (the Act) that the limitation period for the cause of action be extended for such period as the court determines. 2 The notice of motion seeking the extension of time and the applicant's statement of claim were filed on 12 September 2001. 3 The respondent, the Commonwealth of Australia, opposes the extension of the limitation period, submitting that the applicant has not brought himself within the threshold requirements of s 60I of the Act and, in the event that he has, that it is not just and reasonable to grant the extension that is sought. 4 The applicant was born on 4 July 1931. The six-year limitation period under the Limitation of Actions Act 1623 (Imp) that applied to his cause of action expired on 11 February 1970. 5 The applicant pleads the following particulars of injury: (a) Severe shock; (b) severe anxiety and depression; (c) fear of going to sea; (d) difficulties with sleeping, nightmares and night sweats; (e) irritability and fatigue; (f) sexual impotence; (g) difficultly in concentrating, making decisions and solving problems; (h) mood swings, frustration and isolation; (i) obsessive compulsive behaviour; (j) chronic post-traumatic stress disorder (PTSD) with avoidance symptoms and arousal symptoms; (k) emotional detachment; (l) attempts to medicate himself by heavy use of alcohol and tobacco with consequential impairment of body function (tobacco addiction ceased 1988 approximately); (m) hypertension; (n) acid reflux and indigestion; (o) body sweats; (p) irritable bowel syndrome; (q) high cholesterol; (r) ulcers; (s) ischaemic heart disease; (t) alcohol dependence. 6 It is the applicant's case that, but for the collision and the injuries that he sustained therein, he would have progressed through the ranks and remained in the Navy until retiring at or about the age of fifty-five years. His claim includes a claim for economic loss arising out of impairment of his capacity to earn income and the loss of the chance that he would have qualified for Defence Force and Death Benefit entitlements on his retirement. 7 At any trial the Commonwealth will not put negligence in issue. The issues would be whether the applicant suffered any psychiatric injury as the result of the collision and, if so, the amount of any damages. 8 Section 60G(2) of the Act provides: If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, 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. The applicant bears the onus of establishing that it is just and reasonable for the court to grant the extension that is sought. 9 Section 60I(1) of the Act provides: (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 (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) that 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). 10 "Personal injury" is defined in s 11 of the Act to include "any disease and any impairment of the physical or mental condition of a person". 11 The applicant swore three affidavits in support of the relief claimed in his motion. The first annexed a report of Robert Wilks, a clinical psychologist, dated 4 April 2001 and a report of Dr Hopwood, a psychiatrist, dated 4 May 2001. The second affidavit, which was sworn by the applicant on 18 February 2005, has a number of documents exhibited to it, which were tendered at the hearing and to which I will return. The third affidavit was sworn on 9 December 2005 and annexed a number of medical reports. The applicant was cross-examined at some length on the hearing of the motion. 12 The applicant was born in Queenstown, Tasmania on 4 July 1931. In his first affidavit he describes an unremarkable childhood. He gives an account of the schools that he attended to Grade 8. Thereafter he left school and started work as a trainee salesman/window dresser with a firm called Cleggs Silks. He remained in this employment for around three years before leaving to pursue his ambition to go to sea. He obtained employment as a coal fireman on the Melbourne Harbour Trust Dredges. He was dissatisfied with the absence of sea duties in this employment and after eighteen months he joined the Navy. He commenced as a naval recruit in January 1951. He signed up for a six-year term to see whether naval life suited him. 13 The applicant says that he enjoyed his naval service, but that in January 1957 when his term expired he decided to give civilian life a try. Between February 1957 and mid-September 1959 he had various civilian jobs, including at the Abbotsford Brewery and as a mail sorter at the PMG Depot. During this time he was a member of the Fleet Reserve. On 16 September 1959 he rejoined the Navy, signing up for a further period of six years. 14 The applicant was posted to the crew of the Melbourne in January 1964 with the rank of Acting Petty Officer (Radar Division). 15 In his first two affidavits the applicant gives an account of his recollection of the night of the collision. He was working in the Radar Room. Other members of his shift included Ordinary Seamen O'Connor, who was talking via the radio to members of the crew of the Voyager at the time of the collision, and Leading Seaman Wallent. The applicant was charting the movement of merchant ships in the vicinity of the Melbourne. He recalled feeling a vibration and a thump and thinking that the Melbourne had hit a whale. A petty officer came into the Radar Room, saying that the Melbourne had run over the Voyager. The applicant opened the door of the Radar Room and was able to look out over the starboard side of the Melbourne. He saw the stern of the Voyager and heard hissing and the sound of sirens. He says that he was concerned for the crew of the Voyager and for the safety of the crew of the Melbourne and himself. He recalls the remainder of the evening as something of a blur. He remained working in the Radar Room for a number of hours.