Smith v The Commonwealth of Australia [2004] NSWSC 873

Smith v The Commonwealth of Australia [2004] NSWSC 873

The plaintiff did not know until receiving advice from Dr Morris that he had suffered an injury, let alone its nature and extent, and was therefore unaware of the connection between the injury and the collision. Because he did not know he was ill or injured, he had no reason to seek medical help and did not ought to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 September 2004
Procedural Posture
Application for Extension of Limitation Period in a Tort Personal Injury Proceeding / Application for Extension of Time
Outcome
Limitation period extended to 12 September 2001; defendant ordered to pay the plaintiff's costs.
Legal Topics
['extension of Limitation Period' 'personal Injury From HMAS Melbourne and HMAS Voyager Collision' 'post Traumatic Stress Disorder' 'prejudice From Delay']
['limitation of Actions' 'tort' 'personal Injury'] ['extension of Limitation Period' 'personal Injury From HMAS Melbourne and HMAS Voyager Collision' 'post Traumatic Stress Disorder' 'prejudice From Delay']

Source-derived case record

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Procedural Posture

Application for Extension of Limitation Period in a Tort Personal Injury Proceeding / Application for Extension of Time

Legal Issues

  1. 1 ["Whether the plaintiff did not know that personal injury had been suffered, was unaware of the nature or extent of the personal injury, or was unaware of the connection between the personal injury and the defendant's act or omission for the purposes of s60I Limitation Act 1969." 'Whether the application was made within three years after the plaintiff became aware or ought to have become aware of the matters listed in s60I(1)(a).' 'Whether it was just and reasonable under s60G Limitation Act 1969 to extend the limitation period, including whether significant prejudice would result to the Commonwealth.']

Ratio Decidendi

The plaintiff did not know until receiving advice from Dr Morris that he had suffered an injury, let alone its nature and extent, and was therefore unaware of the connection between the injury and the collision. Because he did not know he was ill or injured, he had no reason to seek medical help and did not ought to have become aware earlier. Although time had passed, the Commonwealth had not lost evidence likely significantly to bear on the issues to be fought at trial, so it was just and reasonable to extend the limitation period.

Court Disposition

Limitation period extended to 12 September 2001; defendant ordered to pay the plaintiff's costs.

Orders

  • ['Order that the limitation period for the cause of action in this proceeding be extended until the day on which the statement of claim was filed, namely 12 September 2001.' "Order the defendant to pay the plaintiff's costs."]