Collingwood v Calvert

[1996] QSC 36

IN THE SUPREME COURT

OF QUEENSLAND

No. 1911 of 1987

Brisbane

Before the Hon. Justice GN Williams

[Collingwood v. Calvert & Anor]

BETWEEN:

JAMES COLLINGWOOD
  Plaintiff

AND:

MICHAEL JAMES CALVERT
  First Defendant

AND:

CSR PASTORAL COMPANY
  Second Defendant

JUDGMENT - GN WILLIAMS J

Judgment delivered 21/03/1996

CATCHWORDS      PRACTICE - O.90 r.9 - last step in 1990 - critical issue whether shooting of plaintiff on remote station was in course of employment - defendant lost contact with some witnesses - authorities considered - held substantial risk of prejudice to defendant - leave to proceed refused.

Counsel:Hughes for applicant/plaintiff

AM Wilson for second defendant

Solicitors:CA Sciacca & Associates for plaintiff

Corrs Chambers Westgarth for second defendant

Hearing Date:   23 February 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 1911 of 1987

[Collingwood v. Calvert & Anor]

BETWEEN:

JAMES COLLINGWOOD
  Plaintiff

AND:

MICHAEL JAMES CALVERT
  First Defendant

AND:

CSR PASTORAL COMPANY
  Second Defendant

JUDGMENT - GN WILLIAMS J

Judgment delivered 21/03/1996

This is an application by a plaintiff pursuant to O.90 r.9 of the Rules of the Supreme Court for leave to proceed in the action notwithstanding the fact that the last step was taken more than three years ago.  The relevant facts and chronology of steps taken are of importance and I set them out in some detail.
           As at 17 June 1984 both the plaintiff, James Collingwood, and the first defendant, Michael James Calvert, were employed by the second defendant, CSR Pastoral Company, on a pastoral property outside Cloncurry called Kamilaroi Station.  The plaintiff was employed as a horse groomer and the first defendant as a gardener.
           There is no doubt that on 17 June 1984 the first defendant fired a shot from a rifle and the bullet struck the plaintiff in the back rendering him a paraplegic.  In the statement of claim it is alleged that the incident occurred on Kamilaroi Station, but the material does not establish with any greater precision where each person was at the material time, or what each of them was then doing.  It is alleged that on the day in question the first defendant was aged 15.
           The first defendant was convicted of the offence of assault occasioning grievous bodily harm and sentenced on 28 November 1984 by Judge Trafford-Walker.
           There is nothing in the statement of claim, nor in the affidavit material supporting this application, which indicates the time of day at which the incident occurred, what each of the plaintiff and first defendant was doing at the material time, and the reasons, if any, for the incident occurring.  There is a District Court file in relation to the criminal proceedings and it is asserted without denial that the second defendant has obtained a copy of that file.
           The Writ of Summons was issued on 18 May 1987, shortly before the three year limitation period expired.  Thereafter the action proceeded through the pleading stage with due expedition.  The statement of claim was delivered 5 August 1987, the defence of the second defendant delivered on 14 December 1987, discovery was completed on either side by June 1988, and the second defendant delivered interrogatories for the examination of the plaintiff on 25 January 1989.  Those interrogatories were not answered until 28 October 1990.  The filing of those answers to interrogatories was the last step taken in the action.
           It should be recorded that efforts by the plaintiff to serve the first defendant have not been successful.  The action has at all material times proceeded against the second defendant only.
           The following extracts from the statement of claim sufficiently set out the detail of the case the plaintiff hopes to make out against the second defendant:

"5.It was a term of the contract of employment between the plaintiff and second defendant and/or it was the duty of the second defendant:

(a)to take all reasonable precautions for the safety of the plaintiff whilst he was engaged in carrying out work for the second defendant;

(b)not to expose the plaintiff to any unnecessary risk of damage or injury of which the second defendant knew or ought to have known;

...

6.On 17 June, 1984, the plaintiff in the course of his employment on the said station was wrongfully and intentionally assaulted by the first defendant who fired a shot from a rifle and struck the plaintiff ...

7.Alternatively, the first defendant negligently fired the said shot ...

Particulars

(a)Pointing a loaded firearm in the plaintiff's direction and pulling the trigger.

8.Further, the plaintiff's personal injuries ... were caused by breach of contract of employment and/or negligence on the part of the second defendant as the employer of the plaintiff.

Particulars

(i)Allowing and/or permitting a person of the age of the first defendant to have access to and possession of a firearm and ammunition;

(ii)Allowing and/or permitting the first defendant to have access to liquor while on the said station;

(iii)Failing to properly or at all supervise the conduct and activities of the first defendant;

(iv)Making no or no satisfactory checks on the suitability of the first defendant for employment on a station property.

9.Further, or alternatively, at all material times the first defendant was a "prevented person" within the meaning of s. 62(b)(ii) of the Firearms and Offensive Weapons Act 1979-84 in respect to the said firearm and its ammunition.

10.The plaintiff's personal injuries and other loss and damage were caused by breach of statutory duty on the part of the second defendant.

Particulars

In breach of s. 63(2) of the said Act knowingly supplying the said firearm and ammunition to or for the use of a prevented person, namely the first defendant.

11.Alternatively, the plaintiff's personal injuries and other loss and damage were caused by negligence on the part of the second defendant, particulars of which appear in paragraph 10 hereof and in addition are that the second defendant enabled the first defendant to have access to and use a firearm and ammunition."

In the affidavit filed in support of this application it is merely alleged that the first defendant "gained access to a rifle and ammunition at the second defendant's premises where he and the plaintiff both worked."
           In its defence the second defendant admits the allegation in paragraph 6 of the statement of claim that the plaintiff "was wrongfully and intentionally assaulted by the first defendant who fired a shot from a rifle and struck the plaintiff"; but there is an express denial that such incident occurred in the course of the employment of the plaintiff and first defendant.  The allegations in paragraphs 7, 8, 9, 10 and 11 of the statement of claim are all denied.
           On or about 16 August 1991 the solicitors for the plaintiff forwarded copies of medical reports to the solicitors for the second defendant.  There was then correspondence relating to liability, and by letter dated 24 February 1992 the solicitors for the second defendant confirmed that liability was not admitted.
           On 9 November 1992 the plaintiff delivered a notice of intention to proceed pursuant to O.90 r.9, but no step was taken pursuant thereto.  Of course, the giving of such a notice does not itself constitute the taking of a step in the proceedings (Kaats v. Caelers (1966) Qd. R. 482 and Citicorp Australia Limited v. Metropolitan Public Abattoir Board (1992) 1 Qd. R. 592).
           Then on 26 October 1994 the plaintiff purported to deliver a further notice of intention to proceed, but by letter dated 1 November 1994 the solicitors for the second defendant drew to the attention of the solicitors for the plaintiff the fact that it would be necessary for the plaintiff to get leave to proceed under O.90 r.9 because more than three years had elapsed since the taking of the last step.  There is no dispute on the chronology that the contention of the solicitors for the second defendant was correct.  But the plaintiff took no step with a view to obtaining such leave until the filing of this application on 1 December 1995.
           The affidavit relied on in support of the application gives three explanations for the delay:  firstly, there were delays associated with contacting witnesses; secondly, there were delays associated with Legal Aid funding applications; and thirdly, there were delays associated with counsel's involvement.  I do not propose to review in detail the contents of the affidavit relating to those matters.  I am not satisfied that the material establishes any sufficient explanation for the inordinate delay between October 1990 and the making of this application in December 1995.  In so far as there has been in recent times difficulty in locating potential witnesses that is a direct consequence of the failure of the plaintiff to prosecute the action expeditiously once the pleadings had closed.  There was certainly some delay attributable to problems experienced in obtaining Legal Aid, but that in no way affords a reasonable explanation for the period of more than five years involved.  There was also some delay on the part of counsel in responding to requests for advices, and there have been some further delays occasioned by the necessity to brief new counsel.  But again that does not adequately explain the delay for the period in issue.
           There has, in my view, been inexcusable delay in prosecuting the action particularly since 1990 but that does not preclude the plaintiff from showing that there is good reason for excepting these proceedings from the general prohibition imposed by O.90 r.9 (McFadden v. McKay's Sawmilling Company (1977) Qd. R. 157 and Wilson v. Bynon (1984) 2 Qd. R. 83.)
           Since the decision in William Crosby and Company Pty Ltd v. The Commonwealth (1963) 109 C.L.R. 490 the applicable principle has been that the applicant for leave to proceed must show that there was good reason for excepting the particular proceedings from the general prohibition contained in O.90 r.9. Whilst the reason for the delay is a relevant circumstance, a satisfactory explanation thereof is not a condition precedent to the granting of leave to proceed. The court hearing the application must determine whether, given all the relevant circumstances of the case, there is good reason for making the order (Wilson v. Bynon and Dempsey v. Dorber (1990) 1 Qd. R. 418). As those authorities, and the unreported decision of the Court of Appeal in Keioskie v. The Workers' Compensation Board of Queensland (Appeal 46 of 1992, judgment delivered 15 September 1992) establish, the particulars of the cause of action in question and the issues raised by the pleadings are relevant to the determination of the application for leave to proceed.
           In this case the plaintiff will not succeed at trial in obtaining judgment against the second defendant merely because he establishes that the first defendant fired the shot which caused his injuries.  For the second defendant to be vicariously liable for the act of the first defendant the plaintiff must show that the incident occurred in the course of employment.  Given the allegation in paragraph 6 of the statement of claim that the assault was wrongful and intentional there are immediate difficulties confronting the plaintiff.  The leading authority in Australia is still Deatons Pty Ltd v. Flew (1949) 79 C.L.R. 370. In that case a barmaid, employed by the defendant, assaulted the plaintiff by throwing a beer glass into his face causing the loss of sight in one eye. The incident occurred after some verbal exchange between the barmaid and the plaintiff caused her to become angry. The High Court held that in the circumstances the employer was not vicariously liable for the assault which was an independent personal act not connected with or incidental to the barmaid's employment. It may be relevant for present purposes to note that in the reasons it was suggested that the employer may be liable for an act of self-defence in the course of employment.
           The reasoning in Deatons v. Flew makes it clear that the plaintiff cannot succeed here against the second defendant (employer) merely by proving that the first defendant (an employee) fired the shot.  The defence of the second defendant clearly raises as an issue the contention that the conduct of the first defendant in firing the gun was an independent personal act not connected with his employment.  Such an issue would not have been relevant in the criminal proceedings brought against the first defendant, and in consequence it is not sufficient for the plaintiff to say that the second defendant is in possession of all relevant evidence (and has the names of all potential witnesses) because it has access to the record of the criminal proceedings.
           That is essentially the case whether the ultimate finding in the civil action be that the shot was fired intentionally or negligently.  The shooting of a fellow employee is not something which ordinarily would be regarded as conduct in the course of employment and in consequence it would be necessary at the trial to canvass the issue whether the incident occurred in the course of employment by reference to specific evidence.
           It should also be noted that the allegations of negligence contained in paragraph 8 of the statement of claim deal with issues which would not have been relevant in the criminal proceedings.  As a result of the particulars pleaded in that paragraph and the denial contained in the defence, it will be necessary to canvass at the trial the circumstances in which the first defendant came into possession of the rifle, the question whether some person representing the defendant company on the station knew or ought to have known that the first defendant had come into the possession of the rifle, and so on.  It must be said that the particulars alleged in the quoted passages from the statement of claim are very general and in consequence the second defendant is in a particularly vulnerable position if the matter proceeds to trial more than twelve years after the incident in question.  That observation is highlighted by the allegation that the second defendant was guilty of negligence in allowing or permitting the first defendant to have access to liquor.  There is no positive allegation that the first defendant was affected by alcohol at the time of the shooting, nor that the second defendant knew or ought to have known that the first defendant was so affected when it allowed or permitted him to have access to a firearm.
In so far as the pleading relies on the provisions of the Firearms and Offensive Weapons Act 1979 the position is no different. If there is any cause of action derived from ss. 62 and 63 thereof (and it not necessary for me to consider that question) the plaintiff can only succeed if the evidence establishes that the second defendant knowingly supplied the firearm to the first defendant. Again this would not have been an issue in the criminal proceedings. Whilst the issues are not mutually exclusive, if the first defendant intentionally shot the plaintiff there may well be difficulty in the plaintiff establishing that the firearm was knowingly supplied by the second defendant.
           I have mentioned all of those factual considerations because such issues will have to be resolved by oral evidence given at least twelve years after the incident.  The fact of the shooting can be assumed; the real question at the trial will be whether or not facts and circumstances are established on the balance of probability which would have the consequence that the second defendant was legally responsible for the actions of the first defendant in discharging the gun.
           In the affidavit material the plaintiff indicates there will be four liability witnesses in addition to himself but none of them are named, and there is no attempt to indicate the issues on which each could give relevant evidence.  In a letter dated 27 December 1995 the solicitors for the second defendant requested that the solicitors for the plaintiff identify each of the witnesses referred to.  The response from the solicitors for the plaintiff was contained in a letter dated 15 January 1996; so far as is relevant it said:

"We do not propose to advise you of the names and addresses of liability witnesses that may ultimately be called on the plaintiff's behalf.

We are however prepared to advise that these witnesses were all employees of your client company and therefore their identities and present addresses should be within your client's knowledge or easily obtainable."

The solicitors for the second defendant replied by letter dated 2 February 1996 indicating that to that date they had been unable to locate the present whereabouts of employees as at the date of the accident.  The letter went on:

"Our client is left with no choice but to oppose your client's application on the basis that it is prejudiced in the conduct of the trial because, given the lapse of time, it is now not able to locate the relevant witnesses.  Clearly, your client could remove this prejudice (and presumably enhance his prospect of obtaining a favourable order) by advising the names and addresses of the witnesses referred to in the affidavit material."

Despite the request in that form the solicitors for the plaintiff have maintained their refusal to divulge the names and whereabouts of the witnesses referred to.
           Over recent months the solicitors for the second defendant have taken considerable steps, detailed in affidavit material to locate six employees of the defendant at the relevant time.  They had addresses for each of them at an earlier point of time.  The solicitors have recently been able to contact three (Ahern, Hamilton, and Cottrell), and they may have an address for another (Willis), but they have been unable to locate the others (Kocsis and Chapman).
           The question is whether or not in all of those circumstances leave to proceed should be granted to the plaintiff.  There may well be identifiable prejudice in that one or more of the potential defence witnesses cannot now be contacted after the lapse of time.  But even if all were located there is still prejudice, or at least a serious risk of prejudice, to the second defendant because the witnesses will be required to answer specific and detailed questions as to the matters outlined above more than twelve years after the events occurred.  In Dempsey v. Dorber Connolly J said at 420:

"Thus it is commonly recognised that a witness action, which depends upon the recollection of those who must swear to events and conversations, presents a situation in which the trial of the issues becomes increasingly difficult and unsatisfactory with the passing of time.  This will be so, even if it is not possible to point to the unavailability, for whatever reason, of a particular witness or the loss of relevant records."

That has been reiterated in recent decisions of the Court of Appeal.  In Keioskie Thomas J observed:

"Prejudice to the defendant is enhanced as time goes by, memories fade, companies go into liquidation, circumstances change, potential witnesses disappear, and lines of enquiry that might once have led to the production of further names can longer do so."

And in Dore & Ors v. Seymour Nulty & Co (unreported, Appeal 229 of 1993, judgment delivered 16 August 1994) the court in its judgment said:

"It will always be a relevant factor whether the defendant is likely to suffer prejudice as a result of delay.  Sometimes an examination of the history of the matter and its complexity will demonstrate this prejudice.  Witness actions in particular that depend upon the recollection of persons who must swear to events presents problems with the passing of time.  Inordinate delay combined with evidence of specific prejudice to a defendant will constitute a very substantial obstacle for a plaintiff seeking leave and can be expected to result in a refusal of leave."

Reference should also be made without quoting therefrom to the decisions in Borg v. Muscat (1972) Qd. R. 253 and Bruce Pie & Sons Pty Ltd v. Mainwaring (1987) 1 Qd. R. 304.
           There is such a serious risk of prejudice to the second defendant in permitting this action to proceed to trial more than twelve years after the incident in question occurred, that leave to proceed should be refused.  The material does not satisfy me that there is good reason for excepting this case from the general prohibition imposed by O.90 r.9.
           The application is refused.  The plaintiff is ordered to pay the second defendant's of and incidental to the application to be taxed.