Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443

Commonwealth of Australia v William Richard Nelson [2001] NSWCA 443

Mr Nelson's application was outside the requirements of s 60I(1)(b) because, prior to November 1995, he was aware of all symptoms and effects of his psychological condition and connected them with the 1981 submarine incident; there was no evidence that the condition would worsen or that its extent was different from what he already knew. His later discovery that a psychologist had described the condition as Post Traumatic Stress did not amount to later awareness of the nature or extent of the injury. Alternatively, he ought to have become aware by asking his treating practitioners. In any event, given his state of knowledge and available means of inquiry, it was not just and reasonable...

Jurisdiction
Australia
Judgment Date
30 November 2001
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Extension of Limitation Period for Personal Injury Proceedings / Court of Appeal Appeal From District Court Orders Extending Time Under S 60 G of the Limitation Act 1969
Outcome
Application for leave to appeal granted; appeal allowed; District Court orders extending time set aside; respondent's Notice of Motion dismissed with costs.
Legal Topics
['extension of Limitation Period' 'postponement of Limitation Bar' 'awareness of Nature or Extent of Personal Injury' 'post Traumatic Stress Disorder' 'discretion to Extend Time']
['limitation of Actions' 'personal Injury' 'appellate Procedure'] ['extension of Limitation Period' 'postponement of Limitation Bar' 'awareness of Nature or Extent of Personal Injury' 'post Traumatic Stress Disorder' 'discretion to Extend Time']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Extension of Limitation Period for Personal Injury Proceedings / Court of Appeal Appeal From District Court Orders Extending Time Under S 60 G of the Limitation Act 1969

Legal Issues

  1. 1 ["Whether the respondent's application to extend time was made within 3 years after he became aware, or ought to have become aware, of the nature or extent of the personal injury suffered." 'Whether awareness of symptoms but not of the diagnosis of Post Traumatic Stress Disorder meant the respondent was unaware of the nature or extent of his personal injury for the purposes of s 60I(1)(a)(ii) and s 60I(1)(b) of the Limitation Act 1969.' 'Whether the District Court discretion under s 60G(2) miscarried and whether it was just and reasonable to extend time.']

Ratio Decidendi

Mr Nelson's application was outside the requirements of s 60I(1)(b) because, prior to November 1995, he was aware of all symptoms and effects of his psychological condition and connected them with the 1981 submarine incident; there was no evidence that the condition would worsen or that its extent was different from what he already knew. His later discovery that a psychologist had described the condition as Post Traumatic Stress did not amount to later awareness of the nature or extent of the injury. Alternatively, he ought to have become aware by asking his treating practitioners. In any event, given his state of knowledge and available means of inquiry, it was not just and reasonable...

Court Disposition

Application for leave to appeal granted; appeal allowed; District Court orders extending time set aside; respondent's Notice of Motion dismissed with costs.

Orders

  • ['That the Application for Leave to Appeal be granted.' 'That the appeal be allowed.' "That the orders made by Robison DCJ on 15 December 1999 be set aside, and in lieu thereof that the opponent's Notice of Motion be dismissed with costs." "That the opponent pay the claimant's costs of the application for leave and...