Ashton v Benders Pty Ltd
[2002] TASSC 68
•13 September 2002
[2002] TASSC 68
CITATION: Ashton v Benders Pty Ltd [2002] TASSC 68
PARTIES: ASHTON, Mark William
v
BENDERS PTY LTD (ACN 009 486 186)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M199/1998
DELIVERED ON: 13 September 2002
DELIVERED AT: Hobart
HEARING DATES: 30 April 2002
JUDGMENT OF: Crawford J
CATCHWORDS:
Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised - Inordinate delay - Likelihood of prejudice to respondent.
Limitation Act 1974 (Tas), s5(3).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Applicant: K B Procter SC
Respondent: P L Jackson
Solicitors:
Applicant: Murdoch Clarke
Respondent: Griffits and Jackson
Judgment Number: [2002] TASSC 68
Number of Paragraphs: 44
Serial No 68/2002
File No M199/1998
MARK WILLIAM ASHTON v BENDERS PTY LTD (ACN 009 486 186)
REASONS FOR JUDGMENT CRAWFORD J
13 September 2002
By an originating application filed on 31 July 1998, an order was sought pursuant to the Limitation Act 1974, s5(3), that the time for the applicant to institute proceedings against the respondent for damages for personal injuries be extended for such period as the Court deems appropriate and necessary. The accident and cause of action with respect to which the damages are claimed, occurred on 9 October 1992. The time limit for bringing an action expired three years later on 9 October 1995. Under subs(3), I have a discretion, if I think that in all the circumstances of the case it is just and reasonable so to do, to extend the period limited for the bringing of the action for such period as I think necessary, but the period must not exceed six years from the date on which the cause of action accrued. A writ was in fact filed on the date on which the originating application was filed, so that the extension of time is sought to that date, which was over five years, nine months after the cause of action arose. It is now approaching ten years after.
Evidence for the applicant came from the following sources. Four affidavits of the applicant were read and he was cross-examined. An affidavit of Joanna Davidson, a legal practitioner employed by Rae & Partners, was read. An affidavit of Alison Burrows-Cheng, a legal practitioner with Murdoch Clarke, was read. An affidavit of Gregory Norris sworn on 5 March 2001 was read. At the time of the accident, he was the mayor of the Esperance Municipality. He died between the date of his affidavit and the date of hearing. Oral evidence was given by Peter Gordon who, at the time of the accident, was the manager of the quarry where it occurred, and Wojciech Grun, who at the time was an Inspector of Mines. For the respondent, an affidavit by Raymond Bender, the respondent's managing director, was read and he was cross-examined. The respondent was the owner and operator of the quarry.
The applicant's reason for going to the quarry
The accident took place in the respondent's limestone quarry at Lune River. For some time, environmentalists had been protesting against the continued operation of the quarry and obstructing the work. On 20 August 1992, the Commonwealth Government had ordered its closure but work continued for a short time as part of a clean-up phase. However protesters continued to obstruct the carrying out of work.
The applicant was employed by the Esperance Municipality as a regional development officer. On the day of the accident, 9 October 1992, the mayor, Gregory Norris, and the council clerk, Geoffrey Jamieson, asked the applicant to accompany them to the quarry to attempt to facilitate a meeting between the mayor and council clerk and the protesters, with the hope that the protesters could be persuaded to allow work to continue. In some way the applicant was regarded as a neutral party.
Arrival at the quarry
The applicant's evidence was that his party of three arrived at the front gate of the quarry, where they were met by Peter Gordon, the mine manager. They proceeded to Mr Gordon's office. An ABC journalist was also present and it was intended that he would accompany the party to the protesters. Mr Gordon said that he knew where the protesters were located and it was resolved that he would lead the party to them. I accept the applicant's evidence of those matters. Mr Gordon's evidence was that he has little memory of the day. I will refer to his evidence in more detail later.
The location of the protesters
The quarry was cut into a hillside. I accept the evidence of Mr Bender that there were six benches. A road wound its way up to the uppermost bench and from that road, access roads ran onto each of the other benches. The roads had flat beds of solid rock. They were always in good condition and capable of carrying 35 ton dump trucks.
It had been the habit of the protesters to occupy the uppermost bench. If they were approached by quarry workers or others, they tended to move away into the surrounding forest, making communication with them impossible, except perhaps by shouting at them from a distance before they moved away.
It was the applicant's evidence that on the day in question the protesters could be seen on the top bench.
The route taken by the party toward the protesters
I found the applicant's evidence about this vague and difficult to understand. He was unable to explain why the party did not drive to where the protesters were. It occurs to me that it may have been because it was thought that unless the party approached on foot, they had no hope of successfully establishing communications with the protesters. Even so, his evidence failed to explain why the party did not walk all of the way to the protesters along the road.
The applicant said that his party travelled some of the way by car and then got out. Present with him at that time were the mayor (Mr Norris), the council clerk (Mr Jamieson), the mine manager (Mr Gordon), the ABC journalist and about four quarry employees. He could not recall whether Mr Gordon said "follow me", but he led the way, followed by the other quarry employees, Mr Jamieson, Mr Norris and the applicant. He could not remember if they proceeded in single file. They had to walk 100 to 200 metres to reach the protesters and they commenced the walk on a vehicular road to the top area. It had been compacted by vehicles and was a sturdy surface on which to walk. They reached an area approximately six metres below a ledge where the protesters were located and Mr Gordon then led the way by leaving the road and proceeding up a track made up of loose stones of various sizes. The applicant described it as a foot track. It was not merely a matter of scrambling up a bank. At the point where they were close to and underneath the protesters, Mr Norris and Mr Jamieson were just behind him and he was directly behind Mr Gordon and the other quarry employees.
In his affidavit, the late Mr Norris said that the protesters were near the top of the quarry, with some of them on a ledge just below the top. He said that Mr Gordon was leading, followed by the applicant with Mr Norris a further 10 to 15 feet behind the applicant. He said that the party was led up the side of the quarry, that there was no defined track, that the ground was loose limestone and that they had to climb over boulders. His description did not accord with that of the applicant.
Mr Grun was not present at the time of the accident but gave evidence of the general layout of the quarry. I have referred to some of his evidence, without naming him. He said that the main access road went very close to the top of the quarry and that he thought that a bulldozer track went up to the very last bench. The uppermost part of the quarry had not been worked in his time, although benches close to the top were worked. To get to the top, "the last bit you go on foot". At that point there was an area and leading from it a foot track into the forest. He had not seen any foot track or any other access tracks, except the road, that led to the top of the quarry. He believed that anyone who wanted to get to the top would have followed the same route as he had done because, although it was a steep walk and nothing but a track, it was the easiest way and perfectly accessible. He assumed that if a person attempted to reach the top of the quarry, other than by the access road and track he described, he would have to climb up a steep and rough surface, but he could not imagine where. It is doubtful that the track to which he referred was the track to which the applicant referred.
Although Mr Grun frequently visited the quarry, and appeared to be familiar with it, I assume that Mr Bender, as the managing director of the owner and operator, was more familiar and probably visited more frequently. He also described the access road to the benches and the top. His evidence disagreed with Mr Grun in that he said that a vehicle could be driven right to the top of the quarry, including the area overlooking all the operations of the quarry. A person could walk along the vehicular roads to each bench, but apart from the road, there was no foot access and most of the ground consisted of vertical sided benches. He agreed with counsel for the applicant that he would not have thought it was safe to attempt to access the top of the quarry by foot, other than by road, and he could not imagine a reason why anyone would wish to attempt to do so. In his view, it would be unsafe because a person could fall. He confirmed that most of it was vertical, although there were some areas where it was not quite vertical because blasting of the limestone did not produce quite as clean a breakout as bluestone, for example. He agreed with the proposition that if Mr Gordon led other people up the quarry by a route other than a vehicular track, he would have been leading them into danger. He recalled that conservationists had occupied the highest point of the quarry and he agreed that access to that point was only safe if reached by road. It was his view that it would be unsafe to go off the formed paths. It was clear to me that Mr Bender was referring generally to the desirable way to reach the top from the bottom of the quarry, and was not directing his mind to the possible need to go off a formed road at one particular place by six metres or so, to talk to someone.
The accident
In an affidavit, the applicant's evidence was that as he neared the top, the track gave way and he slipped and fell. He maintained that the track was slippery and unstable and that he was not warned that it might give way. In another affidavit, he said that when almost to the top of the track, his feet started to go from under him as the track started to give way, and he fell backwards for a distance of about six metres to the bottom of the track. In his oral evidence, he described the surface of the track as collapsing under him and of him rolling down the slope, bringing limestone down on top of him. His leg was bleeding and he was limping because of pain, but he was able to complete his walk to the top of the track and to take part in a meeting with the protesters.
The accident was described differently by the late Mr Norris in his affidavit. He said:
"As I was following Mark Ashton I saw him fall as a boulder he was holding on to gave way. He fell several metres. He let out a scream."
Evidence of other witnesses
Of course, Mr Norris is no longer available to give evidence. There was no evidence from any of the mine employees, apart from Mr Gordon, and no evidence concerning whether they witnessed the fall and whether they are available as witnesses. There was no evidence that Mr Jamieson witnessed the fall, although he was in its immediate vicinity, and whether he is available as a witness. The journalist was not identified.
The mine manager, Mr Gordon, has lost almost all of his memory of that day. I have no reason to doubt his evidence about that. He said that at the time the quarry was receiving regular visitors. He did not organise the council officers to come. He has only a vague recall that the applicant fell in the quarry and that the council officers were there. He cannot remember where it happened; what the applicant was doing at the time; what Mr Gordon was doing; where the protesters were; whether there was a journalist at the quarry; where he talked to the council officers; what he talked to the council officers about; nor whether they made contact with the protesters (the applicant said that they did). When being asked about such matters, he exclaimed with justification, "it's 1992 we're talking about, I suppose yous realise". He said that all he could remember was that he was in the quarry that day, not what part of it.
Injuries and effects
Little evidence was led concerning the applicant's injuries and their effects, partly because the respondent's solicitors had undertaken not to take any point on the issue. He suffered some form of knee injury. It was his evidence that because of it, he was unable to continue with his job with the council and resigned at about the end of 1994. He said that he had been through a pretty extensive rehabilitation program and was virtually unemployable. Subsequently he commenced to operate his own business. In July 1999 he had surgery on his knee. The evidence relevant to damages was so slight that it is impossible for me to gauge the level of damages that it is likely would be assessed in the applicant's favour.
Delay in making or pursuing a claim by the applicant
There is no reason not to accept the substance of the evidence of the applicant, Ms Davidson and Mrs Burrows-Cheng relevant to this aspect.
It was the applicant's evidence that in or about May 1994 he sought advice from a legal practitioner, Dale Docking of Abetz Curtis & Docking, and instructed him to make a claim against both his employer, the Esperance Municipality, and the respondent. There was no evidence why he did not seek legal advice earlier than that. No advice was given to him by Mr Docking concerning a three year limitation period. He said that Mr Docking recommended that he pursue a lump sum payment from the employer and a public liability claim against the respondent. On 13 May 1994, Mr Docking sent a letter to the respondent advising that he had been instructed to act for Mark William Ashton who had injured his knee in a fall in the quarry in October 1992 and to make a claim for damages in respect of the matter. No other details of the incident and its circumstances were given. Mr Docking asked the respondent to forward the letter to its insurers. That was done. I note that the quarry had closed in 1992 and Mr Bender, who as managing director received Mr Docking's letter, had no knowledge of the applicant's fall. On 19 August 1994, Griffits and Jackson sent a letter to the applicant's solicitors, advising that they acted for the respondent's public liability insurer, FAI General Insurance Company Ltd ("FAI"). They stated that neither the respondent nor FAI had any information concerning the applicant's injury and asked for some detail as to the circumstances in which it was alleged to have occurred, including the date and precisely where. They also asked for an indication of the basis on which it was asserted that a cause of action in damages arose in respect of the injury against the respondent. They stated that on receipt of a response, they would carry out whatever further investigations might be necessary and indicate FAI's attitude to the claim. Liability was expressly "not conceded". Upon the basis of the evidence, or lack of it, I find that there was no further communication made on behalf of the applicant to the respondent, its insurers or legal practitioners, until about August 1998, when presumably the writ and application for an extension of time were served on the respondent. On the face of the evidence, the respondent, its insurers and legal practitioners, remained in ignorance of the circumstances of the accident and the basis of the applicant's claim at least until almost six years had passed since the cause of action arose.
The applicant had claimed workers compensation from his employer, the Esperance Municipality. He was off work for some time because of the knee injury. He had received from his employer, or there was paid on his behalf, $46,497.80 by way of workers compensation or benefits when on 6 December 1994, he executed a deed of release accepting a lump sum of $50,000 from his employer and releasing it from all further claims for workers compensation, damages at common law or otherwise. It was his evidence that he continued to instruct Mr Docking to pursue a common law claim against the respondent, that he believed Mr Docking was complying with his instructions and that he received no advice to the contrary.
In evidence were three written communications from the applicant to Mr Docking which were subsequently found on the latter's file. On 11 August 1995, the applicant wrote to Mr Docking with some up to date information concerning the condition of his knee and advised that his general practitioner had asked Mr Docking to request a report "direct for your own file for you to complete your action against Benders insurer". He was intending to refer to his claim for damages. On 16 February 1996, he wrote stating (inter alia) "how is my common law action going?" On 16 July 1996, he wrote again to Mr Docking, "wondering if you have any up dates as yet in relation to the [common law] action". He could not recall receiving replies to his letters. He went to Mr Docking's office probably as many times as he had written, "just to see where it was going, and how it was going". He said: "I would be patted on the back and saying, 'Everything's under control, it's all right'." He was advised that there was a claim on foot. However, he did not understand civil procedure and had no idea of the steps Mr Docking should have taken on his behalf against the respondent, such as the issuing of a writ claiming damages. He simply assumed from Mr Docking's assurances that in fact everything was properly under control. He understood that such claims took some years. He added that every four or five months he would either telephone Mr Docking or go and see him.
On 14 October 1996, he attended Mr Docking and discussed the claim, still believing that it was on foot. From late 1996 onwards, he "had a lot of difficulty" obtaining a response from Mr Docking. In about August 1997, he attended Mr Docking and asked how his claim was going. Mr Docking advised that he was no longer very confident about the matter and that "I don't think there's anything in this any more", according to the applicant's evidence.
Unaware that the proceedings that should have been commenced had not, the applicant decided to obtain a second legal opinion as to the likelihood of success with his claim for damages against the respondent. On 26 August 1997, he attended another legal practitioner, Andrew Rae, of Rae & Partners, for advice and requested Mr Rae to obtain Mr Docking's file for the purpose of giving it. At no time prior to consulting Mr Rae was the applicant advised of the three year time limit in which to commence an action. There was no evidence that Mr Rae mentioned it at that time. On the same day as they were instructed, Rae & Partners wrote to Mr Docking asking that he provide his file on loan so that they could give advice to the applicant. They forwarded the applicant's authority to do so. Not having had a response, they wrote again on 18 September 1997, 20 October 1997, 10 February 1998 and 18 March 1998. In addition, because of Mr Docking's failures to respond, they wrote to the Law Society on 21 November 1997. Eventually, after an investigation by the Society, Rae & Partners received Mr Docking's file on 4 June 1998. Inspection of it revealed that no proceedings had been commenced against the respondent.
On 13 May 1998, the applicant suffered an accidental head injury and was unable to fully instruct his solicitors until 4 July 1998. On 7 July 1998, Rae & Partners took full instructions from him, including instructions to commence an action against the respondent and the present application to extend time. As I have said, the writ and application were filed on 31 July 1998.
At that time, a legal practitioner employed by Rae & Partners, Joanna Davidson, was handling the applicant's file. She prepared an affidavit for the applicant and herself, sworn on 31 August and 11 September 1998 respectively, in support of the application. A short further affidavit of the applicant, correcting an error in his earlier affidavit, was sworn on 19 October 1998.
Towards the end of 1998, Ms Davidson left her employment and another solicitor with Rae & Partners, Mr Michael Daly, took over the carriage of the file. The evidence of the next thing to occur was that on 4 May 1999, Mr Daly wrote to the applicant advising that the respondent wished to have the application for an extension of time proceed to a hearing, but not before 19 April 1999 [sic], and it wished to cross-examine the applicant on his affidavits. Mr Daly noted that because the applicant had been involved in time consuming litigation in relation to certain business affairs, Mr Daly had not recently troubled him. He emphasised however, that it was "important that we now dispose of this matter as quickly as possible". He asked the applicant to telephone him immediately to "discuss the appropriate course of action".
It was the applicant's evidence that in about May 1999, he became involved in another action in this Court, which occupied his time for approximately three months. It concerned a dispute between him and his fellow directors of a company, Indoor Air Quality Pty Ltd. He stated that it later came to his knowledge that in about July 1999, a solicitor employed by Rae & Partners, who was acting for him with respect to that action, had used for his own benefit items of patented equipment the applicant had stored at the offices of Rae & Partners. In the same month, the applicant had knee surgery in Melbourne and he was recuperating for some months thereafter. In September 1999, he spoke to Mr Daly about the other solicitor's use of the equipment. Mr Daly said that he would speak to Mr Rae. Towards the end of 1999 he told the applicant that it would be appropriate for him to instruct different solicitors with respect to the application to extend time.
It was the applicant's evidence that as a result he contacted Mr Geason of Murdoch Clarke in December 1999. They are the applicant's present solicitors. He believed that Mr Geason requested his file from Rae & Partners, and he also believed that it was not until June 2000 that the file was released to his present solicitors. On 6 July 2000 he met Mrs Burrows-Cheng of that firm. It was her evidence that as a result of that meeting and her review of the files of Abetz Curtis & Docking and Rae & Partners, it was apparent that there had been no investigation with respect to the negligence aspect of the action. She therefore recommended to the applicant that he make inquiries to obtain information as to the safety or otherwise of the quarry and the track where he fell. The applicant told her that he would do so, and that his efforts would include the making of requests of relevant agencies, pursuant to Federal and State freedom of information legislation, and that he would provide her with copies of any relevant documents that he obtained.
It was the evidence of the applicant that as a result he conducted extensive investigations in an attempt to locate documents with respect to safety at the quarry at the time he was injured. He exhibited to an affidavit he swore on 11 December 2001 copies of documents he obtained, amounting to 64 pages in all. Essentially they dealt with environmental and rehabilitative considerations relating to the quarry and contained nothing of substance relevant to the issue of the respondent's liability to him. Counsel for the applicant did not rely on them at the hearing before me.
I return to the evidence of Mrs Burrow-Cheng. On 31 July 2000, she wrote to Mr Peter Gordon, the mine manager, requesting that he contact her with respect to the accident. He did not do so. On 8 August 2000, she reviewed documents provided by the applicant. As a result of further information obtained by the applicant in September, she determined it was appropriate that she contact Mr Grun. She met Mr Grun on 29 September 2000 and drafted an affidavit she hoped he would swear. However, he refused to do so on the direction of the Director of Mines. Mrs Burrows-Cheng had correspondence about the matter with Mr Grun and the Director until January 2001. The Director confirmed his direction to Mr Grun, stating that on the advice of the Solicitor-General, and as a matter of policy, his staff would not make affidavits. In February 2001, Mrs Burrows-Cheng sought and obtained from the respondent's solicitors agreement that Mr Grun could give viva voce evidence, subject to a condition.
In October 2000, Mrs Burrows-Cheng spoke to Mr Norris, the mayor of Esperance Municipality at the time of the accident and who had been present in the quarry. She drafted an affidavit for him to swear, sending it to him on 20 October 2000. She chased him up in February 2001 and he swore the affidavit on 5 March 2001. On 22 March 2001, the applicant swore his third affidavit.
In about early 2001, the respondent's insurer FAI, went into liquidation, but its solicitors, Griffits and Jackson, continued to act for the respondent. Mr Norris died. On 4 June 2001, the applicant's solicitors asked the respondent's solicitors if they would allow his affidavit to be read, notwithstanding that he would not be available for cross-examination. On 8 June 2001, the respondent's solicitors responded saying that they would only agree to the first five paragraphs being read. They advised that they were instructed to oppose the application and, if it was successful, to defend the action. They asked that the applicant's solicitors advise when they were ready to proceed with a hearing of the application.
For a period of a few weeks, the applicant's solicitors were inactive due to Mrs Burrows-Cheng having a baby on 22 June 2001. At about that time, the applicant contacted and obtained a signed statement from the respondent's quarry manager, Mr Gordon, who had not responded to the letter sent by the applicant's solicitors 12 months earlier. On 31 July 2001, the applicant informed Mrs Burrows-Cheng that Mr Gordon was not prepared to assist further with an affidavit as I understand it. Mr Gordon confirmed that to her on 20 August 2001. On 31 August she wrote to the respondent's solicitors asking that they consent to Mr Gordon giving oral evidence. On 6 September 2001, a response was received saying that they would do so. On 11 December 2001, the applicant swore his fourth affidavit. On 7 January 2002, the solicitors for the parties caused a joint letter to be received by the Registrar, requesting that the application for an extension of time be listed for hearing. It was heard on 30 April 2002.
Other evidence relevant to the effects of the passage of time
Following the closure of the quarry in late 1992 it was rehabilitated. It was the evidence of Mr Bender that for that purpose probably thousands of tonnes of topsoil were carted in and placed on the benches. Trees were then planted on the benches to camouflage the visual effect of the quarry. I find on the balance of probabilities that there is now no chance of viewing the scene of the applicant's accident in the condition it was in at that time. There is a significant likelihood that it will be impossible to locate on the ground precisely where it occurred.
Mr Bender's evidence that the respondent is uninsured with respect to the applicant's claim, because of the liquidation of FAI in 2001, was not seriously challenged by the applicant's counsel in cross-examination. It is common public knowledge that FAI was owned by a company known as HIH that collapsed financially owing huge debts and leaving many people no longer protected by FAI insurance policies. The applicant's counsel asked Mr Bender if he had applied under a Commonwealth Government HIH support program. His answer was that he had not done so, because the respondent's brokers had advised that the program only applied to small businesses and not to the respondent's business. That was not challenged. I therefore determine the application upon the basis that the respondent is likely to no longer have the protection of insurance with respect to the applicant's claim as a result of the FAI liquidation.
It was also Mr Bender's evidence that after receipt of the letter of 17 May 1994 from Abetz Curtis & Docking, he made a few telephone calls inquiring as to what was happening about the matter and learned that there was no action. It was his recollection that Griffits and Jackson, who were then acting for FAI, informed him that the matter had been "dropped" at one stage. It is not surprising that he gained that impression at some point in the period of four years between the original letter of claim in 1994 and the filing of the writ and the application to extend time in 1998.
Determination of the application
I may exercise the power to extend time if I think that in all the circumstances of the case, it is just and reasonable so to do. Counsel agreed that the statements of principle in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 apply to the case. They include the following. The limitation provision is the general rule and the extension provision is the exception to it. It is a discretion to grant an extension of the limitation period, not a discretion to refuse. The applicant must satisfy me that grounds exist for exercising the discretion in his favour. Although the respondent bears an evidentiary onus to raise any consideration telling against the exercise of the discretion, the ultimate onus of satisfying me that time should be extended remains on him. He has the positive burden of demonstrating that the justice of the case requires the extension. When prejudice to the respondent is raised, as it is here, the real question is whether the delay has made the chances of a fair trial unlikely, or the respondent is likely to be prejudiced in some other way. If so, the justice of the applicant's claim is seldom likely to be strong enough to warrant reinstating his right of action. Further, it is an insufficient answer to a claim of prejudice to say that, in any event, the respondent might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period expired.
It is my determination that the respondent is likely to have suffered significant prejudice by reason of the inordinate delay in commencing proceedings and of prosecuting the application to extend time. It should be acknowledged that much of the delay was not the personal fault of the applicant, but was caused by the dilatoriness of his legal advisers. He first instructed a legal practitioner to make a claim against the respondent about 19 months after his accident. He entrusted the competent handling of his claim to his advisers. Apart from one letter giving notice of a claim, but with little information identifying the basis of it so that it could be adequately considered and investigated by the respondent, its insurers and legal advisers, nothing more was done in pursuit of the claim, vis-à-vis the respondent, until almost six years had passed since the cause of action arose. It was not until then that the respondent was able to understand something of the basis of the claim. Once the application was filed in July 1998, almost 3½ years passed before the hearing of it was sought on the applicant's behalf. That delay was also grossly excessive. The evidence reveals that the respondent's side of the case contributed to virtually none of it. What needed to be done to prepare the application for hearing did not justify a delay of more than a few months, certainly not one longer than a year at the most.
A substantial prejudicial result of the delay in this case, from the respondent's aspect, is that it lost the protection of insurance when its insurer went into liquidation over eight years after the cause of action arose. It is of course possible that even if the action had been commenced no later than three years after, it may still have been unresolved at that time. But the inordinate delay has transformed what was a mere possibility into a likelihood, if not a virtual certainty. The delay is also likely to have substantially contributed to Mr Gordon's loss of memory of the events. As I understand the applicant's case, he blames Mr Gordon, in his capacity as the respondent's quarry manager, for selecting the route to the protesters and leading him along a track that was not safe, without giving any warning. Because Mr Gordon no longer has a memory of the events, the respondent has lost any chance it may have had of being assisted by his evidence. The evidence of Mr Norris has also been lost because of his death eight to nine years after the cause of action arose. His affidavit evidence did not accord with the applicant's evidence. His detailed evidence may or may not have favoured the respondent, of course. It may have been harmful to it. Nevertheless, its loss, together with the other effects of the long passage of time, have made it less likely that a fair and just trial can be held.
The rehabilitation work at the quarry and subsequent growth of trees over the years since, has made it more likely as each year has passed, that the precise location of the scene of the accident, and the nature of the terrain at the time of its occurrence, can no longer be ascertained.
All of the matters to which I have referred, when added together, reveal that a substantial risk of prejudice has arisen for the respondent as a result of the failure to expeditiously prosecute the applicant's claim for damages and the application for an extension of time. To it should be added the risk of some other form of prejudice that to this point of time may not have been revealed.
There was a dispute between counsel concerning whether the applicant has established a prima facie case of negligence against the respondent. I doubt that he has. At the highest he has established the possibility that he might succeed. There was in fact no evidence that the unstable nature of the ground upon which he was walking and of which he complains, was not apparent to all who proceeded across it. On his evidence, he only had to traverse about six metres between a stable vehicular road to the protesters, a very short distance in his perambulation in the quarry that day. The lack of strength in the evidence on the issue of the respondent's liability is another factor militating against allowing his application. However, without that lack of strength, I would nevertheless dismiss it because of the nature and extent of the delay and the likely prejudice it has caused to the respondent's chances of a fair trial and of being indemnified by its insurer.
For these reasons, the application will be dismissed.
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