Burke v State of New South Wales

[2004] NSWSC 725

CITATION:	Burke v State of New South Wales & Ors [2004] NSWSC 725
HEARING DATE(S):	12 November 2003, 24 March 2004, 9 August 2004
JUDGMENT DATE:	3 September 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Malpass at 1
DECISION:	The notice of motion is dismissed; the plaintiff is to pay the costs of the notice of motion; the exhibits may be returned.
CATCHWORDS:	Extension of limitation period - pure mental harm - statutory prohibition to recovery of damages - plaintiff must have witnessed victim at the scene being killed, injured or put in peril - meaning of statutory terminology - delay and explanation for delay - conscious decision not to sue - prejudice and fair trial unlikely.
LEGISLATION CITED:	Civil Liability Amendment (Personal Responsibility) Act 2002, Pt 3 s28, s30, s30(1), s30(2)(a) Limitation Act 1969, s60C, s60E
CASES CITED:	Itek Graphix Pty Ltd v Elliot [2002] NSWCA 104 Tame v State of New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35
PARTIES :	Anthony John Burke (Plaintiff) State of New South Wales (First Defendant) Roads & Traffic Authority (Second Defendant) Lend Lease Corporation (Third Defendant)
FILE NUMBER(S):	SC 20509/02
COUNSEL:	Ms S Norton SC, Ms A Healey (Plaintiff) Mr P Garling SC, Ms C Webster (Defendants)
SOLICITORS:	Stacks - the Law Firm (Plaintiff) Frances Allpress (First and Second Defendants) Freehills (Third Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 3 September 2004

20509 of 2002 Anthony John Burke v State of New South Wales & Ors

JUDGMENT

1 Master: The proceedings were commenced by Statement of Claim filed on 8 November 2002. The plaintiff brings a claim for damages arising out of personal injury. The personal injury is said to have been suffered following what has been described as the Thredbo Landslide on 30 July 1997. He was then, and had been for some years, a resident of Thredbo.

2 There are three defendants, the State of New South Wales, the Roads and Traffic Authority and Lend Lease Corporation Limited.

3 Concurrently, there are certain commercial claims arising out of the landslide presently before Grove J. At an earlier time, these proceedings were also before his Honour. The plaintiff now seeks an extension of the relevant limitation period.

4 The plaintiff’s case in chief is set forth in an affidavit sworn on 14 June 2003. At the outset, it is convenient to briefly record certain of its contents (as supplemented by other of his material).

5 He said that he witnessed Bimbadeen Lodge (the Lodge) being destroyed by the landslide from a short distance away (see paragraph 5 of his affidavit) and says that he knew all the people killed in this incident (paragraph 6). One of the people killed was his closest friend Colin Warren. He said inter alia that he went on to the wreckage of the building and the mud.

6 The plaintiff says that he was shocked and very upset about the loss of his closest friend and the deaths of many other friends and acquaintances in the landslide. He says that he started having frequent and vivid nightmares a few weeks after the landslide.

7 He sought medical advice from his local general practitioner (Dr Breathour) and was prescribed medication. He first saw Dr Breathour about 11 months after the landslide (on 24 June 1998). He deposes that as a result of that medical advice he believed he was experiencing a normal grief reaction from which he could expect recovery to take up to about five years.

8 Medical reports record that on 24 June 1998 he was seen to have inter alia symptoms consistent with post traumatic stress syndrome and that the plaintiff was told that treatment was very lengthy and unpredictable.

9 He received some counselling. He did not find it helpful. It confirmed his understanding that he was going through a normal grief reaction.

10 He continued to seek medical advice and treatment from his general practitioner over the next three or four years. He says that it was his belief that he did not require and could not obtain any benefit from any specialist such as a psychologist or a psychiatrist. He said that he did not realise that he was suffering from a mental illness and that he thought he just had a sleep disorder and nightmares which were understandable in the circumstances.

11 In about October 1999, he attended the Compensation Court as a witness in proceedings brought on behalf of the daughter of his friend. Whilst at the court, he spoke to lawyers. He had an awareness that legal claims were being made. He did not wish to be involved in any further legal proceedings dealing with the landslide. He did not believe that he needed to lodge any sort of claim as he expected to recover in due course. He regarded claims for loss of profit as being opportunistic.

12 He gave evidence at an inquest (on 11 August 1998). The Coroner’s Report was released in about the middle of 2000. He said that because he expected to get better, he didn’t do anything about making a claim. He felt that being embroiled in legal proceedings about the landslide would probably slow down his recovery and he couldn’t comprehend how National Parks could be blamed for what had happened.

13 In about the middle of 2001, as he was not getting any better, he saw a psychologist (Douglas Keir). He saw him on many occasions over a period of about 12 months. For most of this time, he still believed that he would recover in due course.

14 By early 2002, he felt that he was still getting worse, despite his treatment. He left Thredbo and moved back to Manly. He saw a local general practitioner and was referred to a psychiatrist (Richard Barnard). He first saw Dr Barnard on 6 August 2002. He said that it is only since he started seeing Dr Barnard that he has come to understand that he has a serious psychiatric condition which required specialist psychiatric treatment over an extended period. He said also that he came to understand that he should seek out a solicitor for advice about what rights he might have to pursue a claim.

15 He contacted a solicitor (Mr Dunn) on 28 October 2002. Thereafter, he commenced both these proceedings and proceedings in the Compensation Court.

16 On 30 June 2003, the notice of motion seeking an extension of the relevant limitation period was filed. The application is made pursuant to s60C of the Limitation Act 1969 (the Act). It is in the following terms:-

60C Ordinary action (including surviving action)
(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .
(2) If an application 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, not exceeding 5 years, as it determines.

Section 60E of the Act provides that in exercising the powers conferred by s60C, a court is to have regard to all of the circumstances of the case (including to the extent that they are relevant, the circumstances enumerated therein).

17 The application came on for hearing on 12 November 2003. The plaintiff then relied on four affidavits. I have earlier referred to certain of the content of the affidavit that was sworn by him. His girlfriend (Miss Kirkwood) has sworn another of them. His solicitor (Mr Dunn) has sworn the remaining two affidavits. One of the affidavits sworn by Mr Dunn annexed a number of medical reports. Two of these reports were provided by Dr Barnard (the consultant psychiatrist). Both the plaintiff and Dr Barnard were cross-examined and re-examined.

18 The defendants have tendered a number of documents (including a plan of the immediate area (Exhibit 1)), a statement made by the plaintiff to the police on 7 August 1997 (Exhibit 2), a transcript of the evidence given by the plaintiff at the Thredbo Inquest (Exhibit 3) and a copy of a workers compensation claim form made by the plaintiff on 17 December 2002 (Exhibit 4)).

19 Shortly after the commencement of the hearing, (at the invitation of the court), counsel for the defendants outlined the various issues that he intended to agitate in answer to the plaintiff’s application. One of the issues identified was expressed to be a lack of evidence to support a prima facie or viable case. Despite being given notice of such an issue, counsel for the plaintiff elected to proceed without leading evidence on it (on the basis that no defence had been filed to the statement of claim). After the conclusion of the evidence and at an early stage during her submissions, counsel for the plaintiff sought to reopen her case for the purposes of tendering the Coroner’s report. The proposed tender was the subject of objection. By consent, the course was taken of proceeding to determine all issues save for that of a lack of prima facie or viable case in negligence. In the event that the defendants were unsuccessful on the other issues, it was common ground that the court would then proceed to deal with the issue of whether or not the plaintiff had such a prima facie or viable case.

20 Shortly thereafter in the course of submissions, it became apparent that counsel for the plaintiff may have some difficulty with the present formulation of the case. At this time, the statement of claim contained the following allegation:-

14. On 30 July 1997 there was a landslide in the immediate vicinity of Carinya and Bimbadeen Lodges which destroyed both lodges and killed 18 persons.
15. The Plaintiff was present in Bimbadeen Lodge visting (sic) friends and then witnessed the destruction of Bimbadeen Lodge shortly after departing.
16. The said incident was caused by the negligence of the defendants, their servants and/or agents.

21 In the light of these potential difficulties, the course was taken of adjourning the proceedings to enable further consideration of such difficulties and the preparation of written submissions. Subsequent to the receipt of those submissions, the hearing was specially fixed to resume on 24 March 2003. On that day, without notice, the plaintiff sought leave to re-open so that further material could be relied on. Directions were given and the further hearing was stood over to enable the plaintiff’s application to be brought.

22 By that time, an amended statement of claim had been prepared. It contained inter alia the following:-

… … …
15. The plaintiff knew all of the 18 people killed by the landslide which caused the collapse of Bimbadeen Lodge and one, Mr Colin Warren, was his closest male friend.
16. The plaintiff had been present in Bimbadeen Lodge some minutes before the landslide occurred. He heard the noise of the landslide and rushed to the scene arriving at the base of the landslide while the earth at the bottom of the slide was still moving. Whilst he was on the site of the landslide he smelt gas and other unusual smells. The plaintiff was aware at the time he reached the landslide that there were likely to be people trapped underneath it and he feared his friend Colin Warren was trapped and in peril.
17. At various times after the landslide the plaintiff was involved in the rescue attempt.
18. The said landslide was caused by the negligence of the defendants its servants or agents, who ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken.
… … …

23 By consent, an application for leave to file such amended pleading has been deferred.

24 The notice of motion seeking inter alia leave to re-open was filed on 14 April 2004. It came on for hearing on 9 August 2004. In support of the application, the plaintiff relied on three affidavits.

25 One is sworn by Mr Dunn (the solicitor for the plaintiff). He deposes to what has been done by him since 12 November 2003 to locate further witnesses and put further material before the court.

26 The other two affidavits have been sworn by further witnesses.

27 One has been sworn by Mary-Anne Scully (who was in a relationship with one of the persons killed in the landslide).

28 Her affidavit contains inter alia the following:-

… … …
3. I travelled to Thredbo as soon as I heard what had happened. I took part in an interview with police a day or two after the landslide to help provide identification information about Col Warren. Tony Burke also took part in that interview. There was a male and a female officer present, the female being from the Coroner’s Office I think.
4. I don’t have any clear recollection of what Tony Burke said during that interview. My clearest recollection of that interview was a lot of questions about parts of Col such as the shape of his fingernails, his teeth, tattoos, circumcision and various other bits.
5. I remember talking to Tony about the landslide during the 10 days that I stayed in Thredbo after the landslide. We were both very upset.
6. I can’t remember much of what Tony said to me or his exact words by my clearest recollections are of him saying words to the effect of “I was frantically searching for people”, “I thought I heard people in the wreckage”, “I was covered in dust and dirt”, and “I frantically ran to get help”.
7. I saw Tony a number of times after the landslide, including at Col’s funeral and the scattering of ashes at Thredbo. I do not recall that we discussed what happened at the scene on these occasion. From memory, we shared some stories about Col and other friends who were also killed in the landslide.

29 The other affidavit was sworn by Gina Paleologo (a forensic counsellor). She provided services on Friday 1 August 1997.

30 Her affidavit contains the following inter alia:-

… … …
5. At 9.30pm that night myself and Peter Davies (Missing Persons Unit, NSW Police) met with Mr Anthony Burke and Maryanne Scully. I was made aware that Maryanne was the girlfriend of Mr Colin Warren and that Anthony was his best friend. Mr Warren had been listed as missing and presumed to be beneath the wreckage of the landslide. I cannot recall who advised me of this information.
6. My recollections of the interview on 1 August 1997 are very limited as this was 7 years ago and my notes only indicate that I met with these people once for the purpose of obtaining ante mortem information.
7. I recall Maryanne Scully being very distressed.
8. My recollection of Anthony Burke relates to his physical appearance and I have a very limited recollection that he spoke about looking through rubble on the landslide for Colin. I don’t recall the exact words that he said, other than he used words to the effect of: “I searched through the rubble on the landslide looking for Colin”.
9. I am unable to recall any other details about the interview.
10. I personally did not see Mr Burke looking through the rubble so I am unable to attest to the accuracy of his statement.
11. I have had no contact with either Mr Burke or Ms Scully since this incident.

31 Although the application was initially opposed, later the course was taken of granting the leave and admitting the contents of the two affidavits. The parties then proceeded to complete submissions and conclude the hearing.

32 During final submissions, scant reference only was made to the affidavits. This may be because the parties did not see the material as having any real evidentiary impact. In my view, the material is lacking in weight and gives little assistance to the plaintiff’s case.

33 The credibility of the plaintiff has been put in issue. It has relevance to various aspects of this application. I have closely observed his demeanour during the giving of evidence.

34 The plaintiff has given different versions of what he saw and what he did at about the time of and following the landslide. One version appears in his affidavit. The earliest appears in a statement given to the police on 7 August 1997 and the subsequent evidence given at the inquest. Others appear in the histories provided to the various doctors. His oral evidence also addresses these matters.

35 In his affidavit, the plaintiff deposed to the following:-

… … …
5. I witnessed the destruction of Bimbadeen Lodge in the Thredbo landslide from a short distance away. I immediately ran back to where Bimbadeen Lodge had been and scrambled over the wreckage of the building and the oozing mud trying to find and help my friend Col Warren and the other people in the lodge. I felt the ground beneath me move a number of times and at one stage my foot became wedged in what was a door or window frame. I knew I was in danger. In amongst the wreckage I recognised the remains of the glass dining table and a chair from Colin’s flat. They were crushed and broken but recognisable. I began to dig and move bits of rubble. I then found a porcelain dragon that I knew belonged to Col Warren and which was normally in his lounge room. I heard the sound of banging metal which at the time I was sure was a sign of life, but this stopped and the ground moved again. I tried to move more rubble but I couldn’t. I tried to get my head and arms inside and between the concrete slabs. I stuck my head inside the space that later became known as the A-frame.
6. I knew all of the people killed in Bimbadeen Lodge, including my closest friend Colin Warren. I had been talking with Colin Warren and his flatmate Mary inside the loungeroom of his apartment in Bimbadeen Lodge only minutes before the landslide.

… … …

36 This later version is closer to what appears in reports (such as the initial report provided by Dr Barnard). It represents a substantial departure from what appears in the police statement and the evidence given at the inquest. What appears in paragraph 5 stands in conflict with that which appears in those earlier versions. Not only is there a different version but there is additional material to what appears in them. The version emerging from that material sees him stopping before the site and then proceeding to the fire station. It does not see him inter alia entering upon the wreckage and the mud. His recollection has undergone both significant subsequent change and expansion.

37 The oral evidence largely saw the abandonment of what appears in paragraph 5 of his affidavit. It was consistent with the sequence of events that appear in his statement. I shall return to these matters in due course.

38 I should add that other discrepancies emerged during oral evidence. I shall mention two of them. In his oral evidence he said that he was about 300m from the lodge at the time of the landslide. A part of what appears in paragraph 6 of his affidavit is in conflict with other evidence that has been given by him (he did not go into the unit in the lodge). It is accepted that it is partly untrue.

39 Significantly, what is pleaded in the amended statement of claim is not consistent with his affidavit evidence (see first sentence of paragraph 5). It would seem likely that the existence of competing versions may pose a challenging task for the pleader.

40 The police statement contains the following:-

… … …
6. About 11.45 pm I left the front of the lodge after shaking Cole’s hand. I walked from ‘BIMBADEEN’ down Bobuck Lane heading towards the small suburb of ‘WOODRIDGE’ which is on the Mountain side of Thredbo. I crossed the walkway bridge on Friday Drive which is opposite to the Bobuck Apartments. About 50 meters past the bridge I heard the sound of a car back firing. I would of been about 500 meters from the “BIMBADEEN” lodge. I also noticed the sound of a large gust of wind. I turned around and due to the sounds I ran back toward the ‘BIMBADEEN lodge. I ran straight up the side of ‘Bobuck Apartments’ which was block B, I ran up to the top of the stairs. All I could see was roofing, roof batons and insulation bats. I knew that there had been a large landslide. The earth at the bottom of the slide was still moving. I did not hear any body. I then saw a large number of people coming from the top of Bobuck Lane with torches. I could smell gas and the smell of freshly dug up soil. I heard no voices. It was deadly silent.

7. I ran to the fire station to alert the fire brigade. The fire brigade was already on the way. I started to freak out a bit. I ran back to the Thredbo Alpine Hotel to see if Cole had returned. I stayed here for about half an hour. Cole was not here.
8. At this stage I knew Cole was in ‘BIMBADEEN’ at the time of the slide. I decided to help the rescue. I filled up the NRMA mobile van and drove to Bobuck Lane. I got as far as ‘New KIRK’ lodge. The road was blocked by the fire brigade. I returned to the Service Station and decided to assist the rescuers by supply them with fuel. I made sure everything was open to assist rescuers. I did everything with the resources I had to assist.
… … …

41 In oral evidence, he said he heard a noise which he felt was a jet when walking past a lodge called The Three Bears. He could see what looked like dust or snow. It was not immediately apparent to him what had happened. He then returned to the site. He proceeded to and he stood on stairs between two buildings (blocks in Bobuck Apartments). He said that the landslide had stopped about 1m short of the apartments.

42 In his evidence before the Inquest, he agreed that this position on the stairs was the extent to which he went near the site. Further, he agreed that he then turned and went to the fire station.

43 In his oral evidence, he said that from there, he went to the Alpine Hotel for the purpose of seeing if his friend was there. He had hoped that his friend was not at the landslide at the time (he had hoped that his friend had doubled back and returned to the hotel). He stayed at the Alpine Hotel for about half an hour. He checked with the hotel and was unable to find his friend. He further said that it was at this stage that he knew that his friend was in the lodge at the time of the slide. He decided to help the rescue. He went to his service station. He picked up his NRMA van and drove towards Bobuck Lodge. The road was blocked at about New Kirk Lodge. As there was not much that he could then do he returned to the service station and opened it up. At that stage, police and others were undertaking rescue activities. Police had decided that people should stay at the site until dawn.

44 The plaintiff has advanced matters in an endeavour to explain inter alia the differences between what is now said and what appears in earlier versions. I found the explanations (one of which involved senior counsel) to be unconvincing.

45 The plaintiff agreed that he had been asked to tell the police in his statement what he saw, heard and did on that evening and that he tried to do it as accurately as he could.

46 The defendants adduced from Dr Barnard evidence to support a contention that the explanation may be found in the plaintiff’s mental condition. His evidence supports the view that the plaintiff suffers from a condition referred to as survivor guilt and that one feature of the condition is a subsequent expansion of what is purported to be recalled. It is said that either consciously or unconsciously, the patient’s evidence is thereby contaminated.

47 In my view, the plaintiff cannot now be regarded as a credible or reliable witness. I have reached that view having regard to both demeanour and evidence.

48 In dealing with questions in cross-examination, he was at times both evasive and unresponsive and he said things which seemed to me to be implausible.

49 Apart from what has been earlier said about his evidence and the various versions of the events of the night of the landslide, other matters have reinforced the reaching of that view.

50 One of the matters is that the plaintiff’s capacity to perceive and recall what happened on the night of the landslide may have been affected by what he had done earlier that night (drinking over many hours).

51 I do not accept the version now provided in his affidavit (inter alia I do not accept that he witnessed the destruction of the lodge by the landslide and that he entered upon the site and searched for his friend). I prefer what was said to the police and at the inquest. I do not accept other aspects of his oral evidence (inter alia his explanations for delay and attempts to move away from certain of what had been deposed to in the affidavit).

52 The plaintiff’s claim is of the category which was once described as a nervous shock claim. It now falls within what is “pure mental harm”. There is evidence which supports the view that he is suffering from chronic post-traumatic stress disorder.

53 The claim is now governed by the Civil Liability Act 2002 (the Act) as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002. The legislation has altered what formerly was the position at common law. Prior thereto, the common law applicable in respect of such a claim was as is expressed in Tame v State of New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35.

54 Part 3 of the Act (ss27-33) is headed “Mental harm”. “Mental harm” is defined therein to mean impairment of a person’s mental condition (s27). There are other definitions (including “consequential mental harm” and “pure mental harm”. Section 28 provides that Pt 3 applies to any claim for damages for mental harm resulting from negligence.

55 “Pure mental harm” is defined to mean mental harm other than consequential mental harm. Section 30 purports to place limitation on recovery for pure mental harm.

56 For present purposes, provisions contained in s30 are of significance. The relevant provisions are as follows:-

30 Limitation on recovery for pure mental harm arising from shock
(1) This section applies to the liability of a person (" the defendant ") for pure mental harm to a person (" the plaintiff ") arising wholly or partly from mental or nervous shock in connection with another person (" the victim ") being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril,
or
(b) the plaintiff is a close member of the family of the victim.

Section 31 provides that there is no liability to pay damages for pure mental harm unless the harm consists of a recognised psychiatric illness.

57 It is common ground that s30 applies to the liability of the defendants. In the present case, the plaintiff relies on subs (2)(a). Accordingly, he must satisfy the threshold requirements specified therein. These requirements do not apply where the plaintiff is a close member of the family of the victim.

58 In the second reading speech, the introduction of this legislation was said to be a triumph for common sense. It was also said that most of the changes brought about by it implement or draw on the recommendations made by an expert panel (“Review of the Law of Negligence”). This came to be known as the Ipp Report. Despite what was so said, what was enacted does not accord with the recommendations (inter alia the terms are narrower than the recommended principles). It seems to be common ground that the second reading speech affords little assistance in construing the statutory provisions which are relevant in this case.

59 What was said in the speech contains the following:-

Instead of using the imprecise term ‘nervous shock’, the bill will provide that damages are only recoverable for a recognised psychiatric illness. The bill also provides that the only people who can recover for mental harm are victims of the negligence, people present at an accident scene, or a family member of a victim. This eliminates the relatives of criminals making a bid for $10,000 to compensate for the nervous shock they sustained. That is an unbelievable situation and is, in essence, why this legislation is required. An apology by or on behalf of the defendant will also not constitute an admission of liability and will not be relevant to the determination of fault or liability in connection with civil liability. Injured people often simply want an explanation and an apology for what happened to them. If these are not available, a conflict can ensue. This is, therefore, an important change that is likely to see far fewer cases ending up in court.

60 Although this legislation has been in force for some time, counsel were not aware of any decided cases in which the proper construction thereof had been considered.

61 A clear intention is expressed to limit inter alia liability for pure mental harm arising from shock. The reading speech evinces an intention that it is to be limited to those who are “victims of the negligence, people present at the accident scene, or a family member of a victim”.

62 Section 30(1) specifies the application of the section. It applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) being a liability arising wholly or partly from mental or nervous shock in connection with another person (the victim), where the victim is killed, injured or put in peril by the act or omission of the defendant.

63 In the case of subs (2)(a), the section prohibits the recovery of damages for pure mental harm unless threshold requirements are satisfied (the plaintiff witnessed, at the scene, the victim being killed, injured, or put in peril). Terms such as “witnessed”, “at the scene” and “put in peril” are not defined.

64 These provisions are narrower than what had been recommended by the Ipp Report (the recommendation contemplated the plaintiff “at the scene of shocking events, or witnessed them or their aftermath”).

65 For present purposes, the “victim” is said to be the plaintiff’s deceased friend (Colin Warren). He was found dead following the landslide and the destruction of the lodge. When this took place is not disclosed by the material.

66 What must be witnessed by the plaintiff has to take place “at the scene”. It seems that these words are intended to refer to the place where the relevant action happens (the victim being killed, injured or put in peril).

67 The dictionary meaning of “witness” involves the concept of perception by presence. It embraces sight or hearing. Regardless of what is seen or heard, there must be the perception that the victim was thereby killed, injured or put in peril.

68 The words “put in peril” would appear to contemplate the position or condition of being exposed to serious and immediate danger.

69 On behalf of the plaintiff it is said that it suffices that he was at the scene of the accident and that he witnessed the eighteen victims of the landslide being put in peril and eventually killed. It is further submitted that the fact that he could not actually see them die because they were underneath the mud is not relevant.

70 The defendant takes a contrary approach. It says that none of the statutory requirements are met.

71 Before proceeding further I should mention another contention advanced on behalf of the plaintiff. It is said that the statutory considerations should be left to the trial. In the circumstances of this case I do not accept that submission.

72 It would be futile to grant an extension of time if the plaintiff did not have a viable case in respect of the satisfying of the statutory threshold requirements.

73 The version presented inter alia in this affidavit sees the plaintiff witnessing the destruction of the lodge from a short distance (his oral evidence was that he was about 300m away), entering upon the wreckage and mud and finding property owned by the victim. Similar versions appear in histories given to experts. These are the only versions that arguably have him as a witness “at the scene”.

74 The earlier version locates him about 500m from the lodge when he heard either the sound of a car backfiring or a like sound. He also noticed the sound of a large gust of wind. He did not see the landslide or the destruction of the lodge. He did not see the destroyed lodge and moving earth until he had reached the nearby Bobuck Apartments. It was not until then that he knew that there had been a large landslide which had destroyed the lodge.

75 I have earlier mentioned the effect had by his oral evidence on what was said in the affidavit. In that oral evidence, he said that he heard a noise which he felt was a jet, he could see what looked like dust or snow and he stated that he did not directly see the landslide. He said that what had happened was not immediately apparent.

76 Save for what appears in his affidavit, not in any of the versions, did he see or hear any victim. In his police statement, he said that he could smell gas and freshly dug up soil, he heard no voices and that it was deadly silent. In his affidavit, he said that he heard the sound of banging metal which he was sure was a sign of life.

77 He knew that the victim had been in the lodge prior to the landslide (about five minutes before). Save for what appears in his affidavit, in other versions and oral evidence, he did not know that his friend was in the lodge at the time of its destruction. When he came to observe the destroyed lodge, he was aware only that his friend might have been a victim. The perception that his friend was in the lodge at the time of the landslide came more than about half an hour later (after he had returned to the Alpine Hotel) to see if his friend was there. He then decided to help the rescue. Because the road was blocked he returned to his service station. He did not assist in the rescue.

78 It is unclear from the material when he came to know that the victim had died in the landslide. It is public knowledge there was a survivor and that the search for bodies proceeded over some days. Medical reports contain material supporting the view that he maintained hope for his friends safety and did not know of his death until some days after the landslide.

79 The reports also give support for the view that it was the landslide or the destruction of the lodge (more so than the death of his friend) and other matters which are put forward as the causes of his alleged disorder. For his claim to succeed at a trial, the plaintiff would be required to demonstrate that the alleged harm arose wholly or partly from shock in connection with another person. The material placed before the court falls short of establishing that matter.

80 The threshold requirements will not be satisfied until the plaintiff can demonstrate a number of matters. There has to be an identifiable victim. He has to witness what is required by statute (the victim being killed, injured or put in peril) at the scene.

81 Save for the version that has not been accepted, he did not witness the happening of the landslide or the destruction of the lodge. On the earlier versions, he did not come to the site until after the lodge had been destroyed by the landslide. He saw the destroyed lodge and earth movement at the bottom of the slide. He did not see or hear any person. At the time, he did not know that his friend was in the lodge at the time (he was entertaining hope that he wasn’t) of the landslide. This perception arose more than about half an hour later (after he had spent time at the Alpine Hotel). Until then, he did not know that his friend had been exposed to danger.

82 In my view, it is unarguable to contend that he witnessed, at the scene, the alleged victim being killed, injured or put in peril.

83 I should add that the same result would have been reached even if his affidavit version had been accepted.

84 On any of the versions, it seems to me to be unarguable to contend that the plaintiff can satisfy the statutory requirements and so be entitled to recover damages for pure mental harm. For this reason alone, the application is doomed to failure.

85 In these circumstances, it is unnecessary to consider other statutory arguments raised by the defendant.

86 Whilst the question of whether or not the plaintiff has available evidence of negligence has been deferred, there are other hurdles confronting the plaintiff. In my view, these are also fatal to his claim.

87 The defendants have raised a number of discretionary considerations (including delay, lack of explanation for delay and prejudice). As there has been considerable argument on these matters, it may be of assistance to the parties if I briefly express views on certain of them.

88 The limitation period expired on 30 July 2000. He did not commence proceedings until November 2002. This application was not brought until 20 June 2003. The landslide happened more than seven years ago.

89 From shortly after the landslide, he related his problems to it. The plaintiff was aware of the nature and extent of the condition at least by June 1998. He was aware that he could bring a claim (at least by about the end of 1999).

90 Prior to the expiry of the limitation period, he had an awareness of various matters. He was aware that others were claiming compensation. He could have obtained legal advice if he had wished to do so. He did have some conversation with lawyers. Whether or not he obtained legal advice on the matter, he was aware that he may have a common law claim.

91 During that time, he made decisions (not to do anything about a common law claim and not to pursue a loss of profit claim).

92 He offers explanation for the delay. I shall expressly refer to what is perhaps the principal matter advanced to explain the delay. He says that he didn’t do anything about making a claim because he thought that he was going through a cycle of grief and that he would get better after about five years. He said that because he expected to recover in due course, he did not believe that he needed to lodge or pursue a claim. He said that he had this view because of what he says was told to him by Dr Breathour. This evidence was not supported by anything that appears in the medical reports. Indeed, it is not consistent with what is said therein. As earlier said, I do not regard him as a credible or reliable witness. Accordingly, I do not accept his evidence on this matter.

93 Other matters are relied on. It is unnecessary to mention them all (inter alia, his state of mind and mental condition are put forward as matters that impaired his capacity to prosecute proceedings). I have taken these matters into account.

94 In my view, the explanation for delay falls well short of being satisfactory.

95 The authorities demonstrate that a conscious decision not to bring proceedings within the limitation period may be a matter of considerable weight in applications of this nature (see inter alia Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104).

96 I have earlier referred to the decisions made by the plaintiff. He may not have had legal advice in respect of his common law claim. His counsel say that it was not a fully informed decision and that may be the case.

97 Whilst his decision is a matter to be taken into account, I do not regard it as being determinative.

98 The defendants also rely on prejudice. They look to both actual and presumptive prejudice.

99 The cause of the landslide has been the subject of extensive investigation. However, it did take place in 1997 and any trial will be concerned with the plaintiff’s perceptions of at least about seven years ago. The memories of any witness called to rebut his testimony may have significantly diminished with the passage of time.

100 Save for the loss of certain records, material relating to his treatment remains available. A file concerning certain of the counselling sessions had with Mr Keir appears to have been lost. His report dated 2 April 2003 states that the details of his initial contact with the plaintiff are based on recollection.

101 The lengthy delay means that presumptive prejudice becomes a matter of weight. This is a case which may throw up many issues involving a substantive number of witnesses.

102 The defendants inter alia make this submissions:-

… … …
56. The evidence given by Dr Barnard indicate (sic) quite clearly that in all the circumstances of this case, including the survivor guilt by which the applicant has been significantly affected, the chronicity of his post traumatic stress disorder and the effluxion of time, more than six years after the relevant events, it is now more difficult for the court to determine what is the correct and truthful version of events from the applicant’s point of view than it would have been one or two years after the events (T49.26-T50.10).
57. The respondents submit that the expansion of the applicant’s role and the extent of his involvement on the evening of the landslide in the histories he (sic) that he has given since 2001, and in his evidence on 12 November 2003, is a consequence of the survivor guilt to which he himself referred, and the other matters Dr Barnard agreed affected determination whether an earlier or later version of events is accurate. Because of the effects of survivor guilt, the chronicity of his post traumatic stress disorder and the effluxion of time, the respondents submit that the applicant’s evidence on this critical issue is now and will be in the future inherently unreliable. The respondents are irremediably prejudiced because (sic) the nature of the claim and the factual questions which must be proved. A fair trial is not possible because there is nothing which the respondents (or probably the applicant too) can do to remedy this ‘contamination’ of the evidence.
… … …

103 There is evidence that supports the view that the plaintiff suffers from a chronic disorder and that it may be permanent. It may be that he has experienced what has been described as survivor guilt and that it has brought about contamination of his recollection. If that be the case, it introduces further complication to the fact finding process that will be involved in any trial.

104 Regardless of that matter, any trial would be beset with questions of credibility and reliability. The problems have been exacerbated by the delay. The fact finding process can be expected to be very difficult.

105 If there was to be trial, it may be that it will not take place for some time. The problems concerning recollection can be expected to increase with the passage of further time.

106 When regard is had to all of the relevant circumstances, it seems to me that a fair trial is now unlikely.

107 The granting of time may expose the parties and the court to a long and expensive trial. This is a case in which the evidence of the plaintiff will be of crucial importance. Presently, the presentation of the plaintiff’s case is plagued with conflict and the consequent problems of credibility and reliability. For these reasons alone, his prospects may be slender.

108 The plaintiff bears an onus of satisfying the court of his entitlement to an order. An order can only be made if the court decides that it is just and reasonable to do so. This is a task which requires the court to look at all of the relevant circumstances of the particular case before it. In my view, even putting aside the matter of the threshold requirements, the plaintiff has failed to discharge that onus.

109 The notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion. The exhibits may be returned.

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Last Modified: 09/03/2004