Andrew Batistatos by his tutor Nita Lavinia Batis v Roads and Traffic Authority of NSW

[2001] NSWSC 237

CITATION:	Andrew Batistatos by his tutor Nita Lavinia Batis v Roads & Traffic Authority of NSW & Anor [2001] NSWSC 237
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 21022 of 1994
HEARING DATE(S):	28 and 29 March 2001
JUDGMENT DATE:	4 April 2001
PARTIES :	Andrew Batistatos by his tutor Nita Lavinia Batis (Plaintiff) Roads & Traffic Authority of NSW (First Defendant) Newcastle City Council (Second Defendant)
JUDGMENT OF:	Bergin J

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL :	G Graham (Plaintiff) J Shaw QC/MW Robinson (First Defendant) M Joseph SC (Second Defendant)
SOLICITORS:	TD Kelly & Co (Plaintiff) IV Knight, Crown Solicitor (First Defendant) Phillips Fox (Second Defendant)
CATCHWORDS:	Appeal from Master refusing application for summary judgment - Application for leave to Amend Defence - Application for Permanent Stay.
LEGISLATION CITED:	Limitations Act 1623 (Imp) Limitations Act 1969 (NSW) Local Government Act 1919 (NSW) Main Roads Act 1924-1957 (NSW) Notice of Action and Other Privileges Abolition Act 1977 (NSW)
CASES CITED:	Barron v Attorney General (1987) 10 NSWLR 215 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Carson v Legal Services Commissioner & Anor [2000] NSWCA 308 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Holt v Wynter [2000] 49 NSWLR 128 Jago v District Court (NSW) (1989) 168 CLR 23 Jones v Dunkel (1959) 101 CLR 298 Knight v Concord Municipal Council [1970] 3 NSWR 295 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Payne v Parker (1976) 1 NSWLR 191 Williams v Spautz (1992) 174 CLR 509
DECISION:	Appeal dismissed. Amendment allowed. Permanent stay application adjourned subject to directions in par. 73.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BERGIN J

DATE: WEDNESDAY 4 APRIL 2001

21022/1994 - ANDREW BATISTATOS by his tutor NITA LAVINIA BATIS v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES & NEWCASTLE CITY COUNCIL

JUDGMENT

1    This litigation, in respect of which I am dealing with a number of applications, was commenced by the filing of a Statement of Claim on 21 March 1994. The plaintiff, by his tutor, brings proceedings against the first defendant, the Roads & Traffic Authority of NSW (the RTA) and the second defendant, Newcastle City Council (the Council) for damages for injuries suffered in a motor vehicle accident on 21 August 1965 which occurred in Fullerton Street, Stockton, NSW.

2    The plaintiff alleges that at all material times the Commissioner for Main Roads and/or the Council had the care, control and management of Fullerton Street. This is denied by the RTA and not admitted by the Council. The plaintiff also alleges that the bend in Fullerton Street at which site the accident occurred was constructed and/or maintained and/or designed by the Commissioner for Main Roads and/or the Council. The RTA does not admit this allegation and the Council denies this.

3    The plaintiff claims that he has at all material times been a person under a disability by reason of impairment of his mental and physical condition. This is not admitted by the RTA or the Council.

4    The plaintiff claims that on 21 August 1965 he was driving his motor vehicle along Fullerton Street, Stockton and “came upon an unmarked and unposted bend in the road in the vicinity of Meredith Street” and ran off the road and into a depressed ditch and overturned. As a result the plaintiff suffered spinal injuries and is a quadriplegic.

5    The particulars provided in April 1996, in response to a request in March 1995, are that the plaintiff was travelling along Fullerton Street at approximately 30 mph (45 mph speed limit) “between 12 midnight and 1 am” on his way to catch the Stockton ferry to return to the home of a couple in Newcastle where he was then living. The plaintiff had attended a dance that evening and had consumed two beers with his “tea” and a further two beers at the dance. He was driving a Ford van similar to a PMG van which he purchased second-hand from a caryard at Mayfield. The Stockton police attended the accident and also attended the hospital the following morning. The van was taken to George Moore’s garage at Wallsend.

6    The particulars state that it was raining at the time of the accident and the traffic conditions were light. Fullerton Street was described as a bitumen road with a single carriageway in either direction. The plaintiff claims that he was travelling on the southbound side of the road and did not realise that there was a bend in the road “due to the absence of proper marking, signage, lighting and reflectors until it was too late to take effective evasive action”.

7    The particulars stated further:

The accident occurred just north of the junction of Fullerton Road and Meredith Street. An S-bend existed at that point which the evidence on behalf of the plaintiff will suggest was known in the Stockton area as a black spot. The road has since been straightened and the hazard which gave rise to the plaintiff’s catastrophic accident has thus been eliminated. If you could furnish us with a map of the Fullerton Road Meredith Street area in the condition in which it then existed we shall mark the accident site upon it for you. We enclose photocopy of photograph which shows part of the S-bend (now disused) looking southward.

8    The plaintiff makes claims against the RTA and the Council in negligence and nuisance and particularises those claims as follows:

(a) constructing and/or maintaining a bend in the said road which was at a higher level of elevation to the surrounding terrain;
(b) failing to warn of the existence of the said bend at its northern approaches or at all;
(c) failing to place posts with reflectors in and at the approaches to the said bend;
(d) constructing and/or maintaining the said bend where the adjacent grass camouflaged its existence;
(e) failing to remove the said grass in the course of such construction and/or maintenance;
(f) failing properly to illuminate the said bend;
(g) failing to warn that the roadway was or had become unsafe to traverse at normal cruising speed;
(h) failing to post any or any sufficient warning of a necessity to traverse the roadway at less than normal cruising speed;
(i) failing to construct or design the roadway with adequate or proper camber, or to cause the said roadway to be so constructed or designed;
(j) constructing and/or maintaining the roadway in such a condition that it was unsafe to traverse at normal cruising speed and/or causing permitting or allowing the roadway to be so constructed and/or maintained;
(k) failing to warn of the inadequate or defective camber of the roadway or to rectify the same;
(l) causing, permitting or allowing the said roadway to come into or remain in public operation with the deficiencies hereinbefore particularised.

9    In his particulars of damage the plaintiff claims that at the time of the accident he was employed as a labourer by the Public Works Department of New South Wales.

10    The RTA filed its Defence on 9 October 1997 in which it pleaded contributory negligence including the failure to steer, manage and control the motor vehicle, excessive speed, failure to break, failure to keep a proper lookout and a claim that the matter is statute barred.

11 The Council filed its Defence on 9 May 1996 pleading contributory negligence and claiming that the matter was statute barred pursuant to s 580(6) of the Local Government Act 1919.

12    The history of the proceedings is punctuated by many adjournment applications and the Court was notified by letter on 9 October 1998 that the plaintiff no longer wished to proceed with the case. That position has obviously changed.

Applications

13 The Council, by Motion, brought an application for summary judgment in its favour on the ground of a non-compliance with s 580 of the Local Government Act 1919. Although that Notice of Motion was filed on 6 August 1996, by reason of the abovementioned adjournments and position adopted by the plaintiff, the matter was not listed for hearing before Master Harrison until 2 June 2000. Master Harrison delivered her judgment refusing the application on 9 June 2000. The Council appeals from that decision (the Appeal).

14    The Council brings a further Motion for leave to amend its Defence to plead the Limitations Act 1623 (Imp), the Limitations Act 1969 (NSW) and the highway immunity defence (the Amendment Motion).

15    The Council and the RTA bring applications for dismissal of the proceedings or a permanent stay (Dismissal/Stay Application).

16    These Applications and Appeal were heard on 28 and 29 March 2001 when Mr G Graham of counsel appeared for the plaintiffs, Mr J Shaw QC leading Mr MW Robinson of counsel appeared for the RTA and Mr M Joseph SC appeared for the Council.

The Appeal

17    In noting that the case was a “tragic” one the Master set out the short facts of the matter in paragraph 3 of her judgment as follows:

(1) The plaintiff was born on 11 April 1932 and is presently 68 years of age.
(2) In 1934 the plaintiff was 2 years of age when his mother died. The plaintiff’s father did not speak English and there was no-one available to assist him in looking after his three children. The plaintiff’s father was unable to care for him and placed him in St Anthony’s Home in Croydon.
(3) On 1 March 1938 the plaintiff was transferred from St Anthony’s and admitted to the then Newcastle Mental Asylum. Where he remained for the next 14 years. The plaintiff was admitted to the asylum pursuant to a fourth schedule request under the Lunacy Act 1898. He was apparently admitted with a diagnosis of congenital mental disorder. His life in the asylum was regimented and he was used as an unpaid source of labour to make beds and to assist with menial nursing tasks.
(4) In 1946 when the plaintiff was aged 14 years his intelligent quotient was tested and measured at the level of 69 points. This estimation is within the mental retardation range. The plaintiff entered into an engineering workshop at the asylum and acquired some mechanical skills.
(5) On 2 August 1954 at the age of 22 years, on recruitment from the mental asylum, the plaintiff commenced employment as a labourer/cleaner with the Department of Public Works. He continued in this employment until 21 August 1965, the date of the accident.
(6) On 21 August 1965 the plaintiff alleges that he was driving his motor vehicle along Fullerton Road, Stockton when it ran off the roadway into a depressed ditch and overturned. The plaintiff sustained a fractured dislocation of the spinal cord at C7/T1 level resulting in quadriplegia. It is in relation to this accident that proceedings are brought by the tutor against the Roads and Traffic Authority of New South Wales (as first defendant) and Newcastle City Council (as second defendant).
(7) Following the accident the plaintiff was taken to Royal Newcastle Hospital and remained there until 1979. He was transferred to William Lyne Hospital in Waratah where he stayed until he was discovered by his sister.
(8) In 1980 the plaintiff went to live with his sister and has remained with her since. She has since cared for him and continues to do so.

18 The Council’s application before the Master was based in part upon s 580 of Local Government Act 1919 (the Act), the relevant provisions of which provide:

580(1) Proceedings in respect of any damage or injury to person or property shall not be commenced against the council or any member thereof, or any servant of the council or any person acting in his aid for anything done or intended to be done or omitted to be done under this Act, until the expiration of one month after notice in writing has been served on the council or the member servant or person as provided in this section.
(2) The notice shall state -
(a) the cause of action;
(b) the time and place at which the damage or injury was sustained;
(c) the name and place of abode or business of the intended plaintiff and of his attorney (if any) in the case.
(3) In the case of damage to property, any person who produces on demand his authority from the council shall be permitted to inspect the property damaged, and all facilities and information necessary to ascertain fully the value of the property damaged, the nature and extent of the damage, and the amount of money (if any) expended in repairing the same, shall be given to him.
(4) In the case of injury to the person any duly qualified medical practitioner, who produces on demand his authority from the council, shall be permitted to examine the person injured, and all facilities and information necessary to enable him to ascertain fully the nature and extent of the injury and the loss or expenses arising therefrom shall be given to him.
(5) At the trial of any such action the plaintiff shall not be permitted to go into evidence of any cause of action that is not stated in the notice, and unless the notice has been served the plaintiff shall not be entitled to maintain the action:
Provided that at any stage of the proceedings the court in which the action is pending may, if the court deems it to be just or reasonable in the circumstances so to do -
(a) amend any defect in the notice in such terms and conditions (if any) as the court may fix;
(b) direct that any non-compliance or insufficient compliance with this section shall not be a bar to the maintenance of the action.
(6) Every such action shall be commenced within the period of twelve months next after the occurring of the cause of action. Such period is in this subsection referred to as “the prescribed period”:
Provided that where an application is made to a judge of the Supreme Court in accordance with rules of court for an extension of the prescribed period, the judge may, if he is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do, make an order for extension of the prescribed period for such further period and subject to such terms and conditions (if any) as may be set out in the order.
Such application for extension may be made either within the prescribed period or at any time within twelve months thereafter.
Any person who is dissatisfied with the decision of the judge on any such application may appeal to the Supreme Court and that court may on the appeal make any order which ought to have been made on the first instance.
Every such appeal shall be made in accordance with the rules of court.
(7) The council or any member servant or person to whom any such notice of action is given as aforesaid may tender amends to the plaintiff his attorney or agent at any time within one month after service of notice of action, and in case the same is not accepted may plead the tender as a defence to the action.

19 This section was repealed by the Notice of Action and Other Privileges Abolition Act 1977 (NSW), s 3 of which provides:

The amendments made by this Act do not affect any proceedings on a cause of action accrued before the commencement of this Act.

The Master said:
It is my view that it is arguable that s 3 means that only proceedings on foot are not affected by the commencement of the Notice of Action and Other Privileges Abolition Act 1977 . It is arguable that when this Act came into force, the plaintiff did not have any proceedings on foot and is thus not caught by s 3.

20    Mr Joseph SC submitted that the clear intention of this section is that the amendments do not affect any proceedings - present or future - in relation to a cause of action which accrued before the commencement of the Act.

21    It is to be remembered that the Master was dealing with the summary judgment application and was thus focusing upon whether or not the particular interpretation was “arguable”. Mr Graham submitted that the Master’s reasoning was correct.

22 If the legislature had intended that it was only proceedings that were “on foot” to which s 580 was to apply then there would have been no need for the words “on a cause of action accrued before the commencement of this Act”. All that would have been necessary, if that was the intention, was for the section to provide that the amendments did not affect any proceedings already commenced. The clear intention seems to me to be that the amendments do not affect any proceedings present or future on a cause of action which accrued before the commencement of the Act.

23 If that is right then there is, depending upon the facts of the case, the capacity for s 580 to apply to this action. It was certainly commenced after 1977 but in relation to a cause of action which accrued prior to the Act.

24 The Council submitted to the Master that the approach adopted by Collins J in Knight v Concord Municipal Council [1970] 3 NSWR 295 should be adopted in this case for the entry of judgment for the Council. Of this submission the Master said:

17 The second defendant relied upon the decision of Knight v Concord Municipal Council & Ors 3 NSWR 295 where Collins J dismissed proceedings as s 580(6) of the Act had not been complied with. In Knight it was conceded that the plaintiff was an infant at the time he met with an injury and when the notice was given is irrelevant. Evidence by affidavit was tendered by the Town Clerk, Mr George Johnson in relation to the powers exercised by the Council. Collins J held that the council was sued in negligence in its care, control and management of the Cabarita Swimming Baths and the power to a council to control and manage parks is expressly conferred by ss 348, 353 and 354 of the Act. According to Collins J this statutory right is expressly given by these sections quoted above. His Honour held that it was clear beyond question that the acts and omissions sued upon were acts and omissions done under the Act by the council and that s 580(6) had not been complied with. He also held that a failure to grant the application would only involve unnecessary expense and delay. His Honour set the writ and declaration aside.
18 In the case before me it is common ground that no notice was given to the Council in accordance with s 580(6) of the Act within the time specified and that no application was made to the Court within 12 months for an extension of time.
19 However, I am not persuaded that all the acts and omissions pleaded are acts done under the Act. The second defendant called no evidence to establish that this is the case. In relation the highway immunity principle, it is true that no civil liability arises from an omission on the council’s part to construct a road, to maintain a road which it has constructed, to repair a road which is allowed to fall into disrepair - Buckle v Bayswater Road (1963) 57 CLR 259. In relation to roadworks if the authority takes action so as to create a danger, it may be liable. It may also be liable if the roadworks involved two purposes and the work was done in relation to the non-highway purpose. With the plaintiff under such a disability, to properly determine these issues requires the facts to be ascertained.
20 Alternatively, the plaintiff submitted that s 280(6) gives a discretion to extend time to commence proceedings. However, in Field v Council of the Municipality of Mosman [1937] 54 WN 162, the full court (per Davidson J) held that:
In my opinion, the action must be commenced within six months and not afterwards, precisely as sub-s (6) states, and, if it has not been so started, it cannot be maintained thereafter. The result is that, notwithstanding the use of the word “section” in sub-s. (5)(b), in my opinion that word can only apply to the words which have been used preceding it in the earlier part of the section.”

21 The period of six months was altered by legislation to a period of 12 months. The court cannot direct that any non-compliance with this section will not be a bar to the maintenance of the action. This point is clear beyond peradventure. Accordingly this submission of the plaintiff fails.
22 It is my view that as the plaintiff has an arguable case that s 580(6) of the Act does not apply. Accordingly his proceedings by his tutor should not be dismissed pursuant to part 13 r 5 of the SCR on this basis. Also, as a discretionary issue, as the plaintiff is under a legal disability and the very unusual nature of this matter, I am not persuaded that it is an appropriate matter for summary judgment. It is yet to be determined whether these proceedings should be permanently stayed as the accident occurred a very long time ago, namely 35 years ago.

25 The Master concluded that the Statement of Claim should not be dismissed on an interlocutory basis that the plaintiff had not served a notice in accordance with s 580 of the Act.

26 The Council submitted that the Master fell into error in forming the view that it was a matter for evidence as to whether the acts and/or omissions pleaded were acts or omissions under the Act. It is submitted that the Act makes it clear that all the acts pleaded against the Council in the particulars to the Statement of Claim are acts done under the Act and that the failure to comply with s 580 prevents the plaintiff from bringing this action.

27 Mr Joseph SC made a thorough analysis of Part IX of the Act, Public Roads. Section 232 provides that every public road, and the soil and all materials of which the road is composed, vest in fee-simple in the Council. The Council is entitled to be registered as the proprietor of the road under the provisions of the Real Property Act 1900. The Act confers on the Council the same estate and rights in and with respect to the site of the road as a private person would have if he were entitled to the site as private land held in fee-simple (s 232(2)).

28    Division 7 of Part IX of the Act deals with construction, improvement and use of roads. Section 240 details numerous powers including a power to construct, improve, maintain and repair any road in such manner as the Council thinks fit, to place and lay paving, kerbing and guttering in any road, to light the road, to plant trees and erect street lamps.

29    Division 8 of Part IX of the Act deals with control and management of roads. Section 249 provides that the Council shall have the care, control and management of every public road and details particulars matters over which it has control including its power to regulate the use by the public of the road.

30    Mr Graham submitted that the Council, as owner of the road, could do whatever a private owner could do, for instance erect signs, reflectors and the like, acts not necessarily covered by the Act. He emphasised in particular the maintenance and control of the vegetation, its nature and height near the bend in the road. He also submitted that the approach adopted in Knight should not be adopted in this case.

31 In this regard he made the further submission that this road is a main road, known as Main Road 108. The Main Roads Act 1924-1957 (the MR Act) applies to main roads. This road appears to be a country main road within the meaning of the MR Act.

32    Division 3 of the MR Act is entitled Country Main Roads Works. If the Main Roads Board established under the MR Act considers any work, construction or maintenance is necessary on a country main road, it may offer assistance to the Council for the execution of that work according to conditions, plans and specifications to be supplied or approved by the Board (s 23).

33    Various funds are set up under the MR Act including a Country Main Roads Fund. Mr Joseph SC submitted that the purpose of this Act was to fund roadworks.

34    Mr Graham relied upon s 26 which provides:

26(1) Where the board has provided money for or has carried out any work upon any country main road, and where there is no prior agreement between the board and the councils as to their respective share of the cost, the board may, when such money has been expended.

thereafter the section provides what the Board may determine in respect of the expenditure.

35    Mr Graham submitted that this section makes clear that the Board itself may carry out works upon any country main road. It is also clear that prior agreements between the Board and councils are envisaged in respect of the sharing of costs. When one combines the effect of s 23 and s 26, it is apparent that the Council may approach the Board for assistance and the Board may provide the Council with assistance for the execution of the work.

36 One of the matters highlighted by the Master was that in Knight there was evidence from the Town Clerk, Mr George Johnson “in relation to the powers exercised by the Council” (par 17). Collins J in referring to this affidavit set out the content of paragraph 4 in which Mr Johnson had stated that the Council “pursuant to the authority conferred on it by the Local Government Act 1919, (as amended), constructed in the said park a swimming pool, dressing shed and appurtenances applicable thereto”.

37    The Master concluded that she was not persuaded that all of the acts and omissions pleaded against the Council in this case were acts done under the Act and said “the second defendant (the Council) called no evidence to establish that this is the case”.

38    I am not satisfied that the Master fell into error in reaching her conclusion on the basis that there was an absence of evidence of the kind referred to in Knight. I disagree with Mr Joseph SC that it does not involve a matter of evidence. I am of the view that this is even more so in the light of the apparent overlapping of capacities of the Main Roads Board and the Council to construct and maintain the main road together and/or pursuant to a direction between the Board and the Council.

39 In all of those circumstances and on the evidence called before me I too am not persuaded that this a matter which is governed solely by the Act and accordingly I am of the view that the plaintiff has a reasonable argument that s 580 of the Act does not apply to this action either in whole or in part. I dismiss the Appeal from the Master.

The Amendment Motion

40 Although Mr Graham formally opposed the amendment to the second defendant’s Defence I am satisfied that I should allow the Defence having regard to the principles stated in Commonwealth of Australia v McLean (1996) 41 NSWLR 389 and Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 and to the lengthy delay this matter has suffered in any event. The only additional matters which are pleaded in the Amended Defence are the Statute of Limitations Defence and highway immunity defence. Although the Amended Defence purports to suggest that the s 580 Defence is new I am satisfied that it was pleaded in the original Defence.

Dismissal/Stay Applications

41 Application is made for summary dismissal or judgment pursuant to Part 13 Rule 5 of the Supreme Court Rules. Application is also made for the exercise of the Court’s inherent powers to stay the proceedings permanently. A claim is made that the proceedings are an abuse of process and a further claim is made that the Council was a Highway Authority at the relevant time and that there is no evidence that the Council negligently created any relevant danger causing the action. The defendants’ claim they are irretrievably prejudiced by reason of the delay in bringing these proceedings.

42    This accident happened nearly 36 years ago. The Statement of Claim was filed 29 years after the accident.

43    There is no issue that the plaintiff was in the asylum until 1956 when he was 23 years of age. At the date of discharge it is apparent that his IQ reading was 69. From the date of the accident, 20 August 1965, to 25 June 1981 the plaintiff was in hospital. Since 1981 he has lived with his sister who has cared for him.

44    The evidence of the plaintiff’s disability, non compos mentis under the 1623 Statute and disability for a continuous period under the 1969 Act is provided by Dr Gordon Kerridge, an Orthopaedic Surgeon who treated the plaintiff after his accident during his hospitalisation and Dr Keith Mayne, a Psychiatrist who assessed the plaintiff in November 1994 at the request of his solicitors.

45    It is apparent that the second defendant had the plaintiff examined by Dr John Shand, Psychiatrist, in September 2000. No report has been served.

46    The plaintiff’s evidence has been given through his solicitor Ms Gabrielle Anne Gould who annexes medical records of the Asylum, a report from the Royal Newcastle Hospital and reports from Drs Kerridge and Mayne to her affidavit. Dr Kerridge states in his report dated 17 November 1994:

I have read your letter with a good deal of interest because it brought back many happy memories of Pedro (the name given to the plaintiff whilst in hospital) and I think it would be quite correct to say that he had over the years “suffered from a significant mental disability which had substantially impeded him in the management of his affairs in relation to bringing of any such action”. In other words, he had very little in the way of formal education and such as he had was in a mental hospital environment and that after his injury which rendered him quadriplegic he was once again returned to a rather more than merely protective environment.

47    Dr Mayne states in his report of 7 December 1994:

Mr Batistatos does not complain of any symptoms of depression, anxiety, nor any other psychiatric disorder. He is an agreeable pleasant man who, somewhat surprisingly, does not seem to harbour any bitterness over his deprivation of liberty as a child and young man, and the devastating effects which this has had upon him.
He is of average intelligence and still speaks with a speech impediment. I am not able to give an opinion as to the cause of his speech impediment, but it is possible that he suffered from minimal brain damage at birth, and that mild neurological damage is present. It is possible that this could be determined by detailed psychological testing.
Mr Batistatos is unable to manage his own affairs, and although he can perform simple calculations and understands the nature of money, he is unable to read, to write cheques or to conduct business of any complexity.
Mr Batistatos’ lack of proper education and the effects of institutionalisation throughout his formative years, have undoubtedly left him ill-equipped to cope with the normal complexities of everyday life. He could certainly not have had the capacity to make a considered judgment concerning his legal rights after the accident which occurred on 21 August 1965. He spent the next fourteen years in a wheel-chair and isolated in a nursing home.
He is now fortunate in being able to live with his sister who cares for him in a satisfactory fashion. There is no evidence of any psychiatric disorder at the present time. He remains severely limited by reason of his physical disabilities, his lack of educational training, and relative emotional immaturity as a consequence of his early life experiences.

48    No application was made to cross examine either of these doctors. Mr Joseph SC objected to the tender of this material without the condition that he be permitted to cross examine the plaintiff. I disallowed any cross examination of the plaintiff as a condition of the admissibility of these reports.

49 Mr Joseph SC submitted that I should draw an inference adverse to the plaintiff on this application by reason of his failure to give evidence. In support of this submission reliance was placed on Glass JA’s judgment in Payne v Parker (1976) 1 NSWLR 191 in which his Honour analysed the Jones v Dunkel (1959) 101 CLR 298 principle at 200-201. Particular reliance was placed on the following:

(1) The rule is a principle of the law of evidence whereby a particular form of reasoning is authorised.
(2) The reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default.
(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness…
(8) ..The second condition is fulfilled whether the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts…
(9) The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory.

Reliance was also placed on Hampton Court Ltd v Crooks (1957) 97 CLR 367 per Dixon CJ at 371-372.

50    The plaintiff was in Court on 28 March 2001. He had been required to attend and his trip to Court had been funded by the Council. This, I was told, was done in anticipation of a ruling in the Council’s favour of an entitlement to cross examine the plaintiff as a condition of the admissibility of the doctors’ reports. That application was refused and although Mr Joseph SC invited, indeed challenged, the plaintiff’s counsel to call the plaintiff to give evidence this was not done.

51    The medical evidence is that the plaintiff improved once he moved into the stable and caring home environment with his sister. As I said in my judgment refusing the application made by the Council, the important matters in respect of the plaintiff’s medical condition was the history that the doctors were given and the judgments they made in respect of that history. It may be that the first step in challenging the history and the bases for the conclusions reached is to challenge the facts with the plaintiff but no application was ever made to cross examine the doctors.

52    The plaintiff submitted that any adverse inference drawn against the plaintiff by his absence from the witness box must be viewed and weighed in the light of the absence of any report from Dr Shand who more recently reviewed and assessed the plaintiff in respect of his capacity. The plaintiff submitted that the absence of that report on balance would have more adversity for the Council than the plaintiff’s absence would have for the plaintiff’s case.

53    The competing submissions are finely balanced but I am of the view that the position favours the plaintiff. I am satisfied on the evidence before me that the plaintiff has a reasonably arguable case that during the relevant period he was under the requisite disability in respect of this action.

54 Mr Joseph SC helpfully outlined the principles applicable in the exercise of the Court’s discretion in an application for a stay: Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Barron v Attorney General (1987) 10 NSWLR 215. He placed heavy emphasis upon McHugh J’s judgment in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541at 551:

Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.

This was cited with approval by Sheller JA in referring to delay causing a deterioration in the whole quality of justice in Carson v Legal Services Commissioner & Anor [2000] NSWCA 308 at par [263].

55    Mr Shaw QC in supporting the Council’s submissions relied upon the following passage from McHugh J’s judgment at 552:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

56 Of this case and the concept of a fair trial Priestley JA in Holt v Wynter [2000] 49 NSWLR 128 said at 142:

Brisbane South itself demonstrates that different judges have somewhat different ideas on the matter. One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.

57    Both the RTA and the Council submitted that the proceedings ought be stayed permanently because they are unfair and unjustifiably oppressive to both the RTA and the Council. It is submitted that the very great delay since the accident with an inability to properly investigate and contest the allegations made by the plaintiff are powerful factors to be taken into account in deciding this application. The inability of the Council to investigate and contest the allegation itself depends upon what records and possible witnesses are available to the Council and the RTA.

58    There are no hospital records available from Royal Newcastle Hospital, William Lyne Day Hospital or John Hunter Hospital prior to 1989. It also appears that there are no police records in relation to the accident. The question of whether there are other records is in issue.

59    The RTA relied upon a number of affidavits in which the officers of the RTA gave evidence that they had made relevant checks on the computer corporate data base under the headings “Fullerton” and “Stockton”. No records or files have been found. The Council relied upon the evidence of Michael Edward Down who gave evidence that the Council did not have any records pre-dating 1984 relating to either the construction and/or camber of Fullerton Street.

60    The Council also relied upon the evidence of Con Forster, a senior technical officer with the Council who swore an affidavit on 19 March 2001 and was cross examined on the application before me.

61    In 1995, after the plaintiff’s Statement of Claim was filed, Mr Forster made a search of the Council’s records and located a number of files, each of which contained information relevant to events which occurred from 1980 onwards.

62    Mr Forster also obtained an aerial photograph dated 26 September 1965 some 36 days after the accident. At the time of his search in 1995 Mr Forster reported:

The aerial photograph shows a dark section of road from Meredith Street and northerly indicating the road had been recently resurfaced. Council’s 1964 Budget Program lists this work in the main roads maintenance and improvement program.

63    The Council’s improvement program documents refer to the resurfacing with an estimate of the Council’s proportion for the payment and what is referred to as the Government “grant”. The source of such grant is not in evidence but it may be the fund referred to in the MR Act previously mentioned.

64    The card system which the Council kept in respect of roadworks also contains reference to a number of reconstruction works for which plans are or may be in existence. Mr Forster produced a number of plans and was cross examined about their content.

65    It is apparent that Fullerton Street has been reconstructed in the early 1980s and was subject to a survey conducted by Surveyor, Mr G Herns. He has not been spoken to in respect of this action. A further person who has been identified on the plans is Mr J Rennies. It is not clear whether Mr Rennies is still alive but no relevant inquiries have been made as to his availability to assist.

66    The second defendant produced a report by a maintenance engineer Mr Bradley with a series of photographs which demonstrate that parts of the original road upon which the plaintiff alleges he was travelling are able to be observed. It is also apparent that Fullerton Street as it then was now travels through the Stockton Soccer Club field which is referred to on the plan as Corroba Reserve. It is apparent no enquiry has been made of the Soccer Club in respect of any information it may have relating to the original road in 1965.

67    This road is in the vicinity of the now Stockton Bridge which was opened to traffic on 1 November 1971. The ferry service across the Hunter River ceased on that day. The evidence suggests that it was “highly likely” that Fullerton Street remained as a main road at least until the Stockton Bridge was opened approximately six years after the accident. A Memorandum of the Council claims that the main road was under the care and control of the Council. That claim is not detailed as to time.

68    The plaintiff submitted that the searches conducted by the RTA are wanting, in that no search was conducted of any computer in respect of Main Road 108 or main roads generally. The searches were restricted to Fullerton and Stockton. In those circumstances it is submitted that I would not be satisfied that all efforts have been made to conduct a search upon which a finding could be made that there are no records available to the RTA or the Council in respect of this accident. That seems to me to be correct and until such searches are made I am not willing to conclude that there are no records that could assist the RTA in this action.

69    Further inquiries that could have been and have not been pursued include inquiries in relation to the identification of the surveyors who may well have capacity to assist with detail about the state of the roadway at the relevant time, the construction and maintenance of the roadway and its camber in the 1960s. Until these steps are taken I am unable to accept the claims made by the Council and the RTA that there are no records that can assist them in this case.

70    As to the second limb of the application that there is no reasonable prospect of success and the plaintiff’s case is doomed to failure by reason of the highway immunity defence, there is now some evidence that the Council was conducting some form of roadworks very close to the time of the accident. Until further inquiry is made I am not satisfied that I should rule upon this matter.

71    During final submissions Mr Graham made an application to adjourn this Motion. He relied upon the affidavit of Timothy Denis Kelly sworn 29 March 2001. Mr Kelly sets out the history of the application for Legal Aid and gave evidence that it was not until 10 April 2000 that a grant of Legal Aid was made. It is clear to me that since that time a number of steps could have been taken by the plaintiff’s legal representatives in this action. Indeed a number of them are set out in paragraph 19 of Mr Kelly’s affidavit. They include the service of subpoenae, notices to produce and various other steps that could be taken to assist the plaintiff in resisting the defendant’s application.

72    Although this application is very late and I must say that I am of the view that these steps, and others, should have been taken prior to this time I am going to allow the adjournment to permit the plaintiff to pursue the steps outlined in Mr Kelly’s affidavit. It will also provide a period during which both defendants can satisfy themselves by searching in the manner described in cross examination.

73    I make the following orders:

1. The Appeal is dismissed.
2. The second defendant is granted leave to file an Amended Defence in the form handed up in Court on 29 March 2001.

3. I adjourn the application for summary judgment and a permanent stay subject to the following directions:

(i) Subpoenas are returnable on 26 April 2001.
Notices to Produce are returnable on 26 April 2001.

(ii) Any further affidavit evidence to be filed by the defendants in their application is to be filed by 9 May 2001.
(iii) Any affidavits to be filed by the plaintiff are to be filed by 23 May 2001.
(iv) The matter is listed before me for mention on 25 May 2001 at 9.30 am to fix a date for further hearing.

The question of costs in relation to orders 1 and 2 can be argued on the adjourned date if the parties are unable to agree on a costs order.
*************

Last Modified: 04/05/2001