Grahame Cavanough v Commonwealth of Australia
[2000] QSC 68
•30 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: Grahame Cavanough v Commonwealth of Australia [2000]
QSC 068PARTIES: GRAHAME CAVANOUGH
(plaintiff)
v
COMMONWEALTH OF AUSTRALIA
(defendant)FILE NO: S466 of 1987 DIVISION: Trial Division DELIVERED ON: 30 March 2000 DELIVERED AT: Brisbane HEARING DATE: 20 March 2000 JUDGE: Mullins J ORDER: Application dismissed CATCHWORDS: PROCEDURE - Courts - Leave to proceed - Delay of 10
years – PrejudiceUniform Civil Procedure Rules, r 389(2) Dempsey v Dorber [1990] 1 QdR 418, 420
Groves v The Commonwealth (1982) 150 CLR 113
Tricon Industries v Abel Lemon & Co Pty Ltd (No 2) [1998] 2
QdR 551, 556
William Crosby & Co Pty Ltd v The Commonwealth (1963)
109 CLR 490 at 496COUNSEL: Mr S R Blaxland for the plaintiff
Mr A B Johnson for the defendantSOLICITORS: Messrs Spranklin Solicitors for the plaintiff
Australian Government Solicitor for the defendant
MULLINS J: This is an application by the plaintiff pursuant to r389(2) of the Uniform Civil Procedure Rules to obtain the leave of the court to take a new step in the action seeking damages for negligence commenced by the plaintiff by writ of summons filed on 9 February 1987 against his employer the Commonwealth of Australia as defendant. The application is opposed.
| [2] | The applicant was injured on 20 June 1984 while employed by the defendant as a member of the Australian Army. He is still employed by the Australian Army. |
The affidavit filed on behalf of the plaintiff supporting the application was made by his current solicitor Mr Bruce Harold Crawford. Mr Crawford deposes to the circumstances of the accident as follows:
"In very brief summary, the Plaintiff informs me, and I verily believe, that on or about the 20th day of June, 1984, during his employment with the Army, he had cause to take part in exercises at Shoalwater Bay in the State of Queensland. During those exercises, the Army required that certain areas be cleared for the purposes of providing landing pads for helicopters. The Plaintiff, at or about nine o'clock in the morning on the day in question, went to one of the pads being cleared for the purposes of conveying orders from his superior officer to various other soldiers and, in particular, on (sic) of the commands was that more trees needed to be taken down. Whilst relaying this order at one of the working pads, the Plaintiff was standing near or under a tree which had been climbed by one private Dykstra. Private Dykstra was in the process of felling the tree and as a part of the felling, commenced to saw down a branch. This branch fell on the Plaintiff causing his injuries. On the instructions which I hold from the Plaintiff, and of which he has informed me and which I verily believe, there were no warnings given about standing clear of the tree and there were no warnings given that the branch in question was about to be brought down. The Plaintiff was not informed, or told, that he should stand clear."
Mr Crawford’s affidavit does not deal with whether the plaintiff has memory of these events or is relying on records he holds to provide the information to Mr Crawford about the accident.
Immediately after the accident a Department of Defence "Report of an Injury" was completed on behalf of the plaintiff by Staff Sergeant P.J. Carey. That report states that while clearing a helicopter landing zone wind caught a partially cut tree bringing it down in the opposite direction and that the plaintiff in his attempt to move out of its way tripped on undergrowth and was hit by the tree.
[5] On 5 July 1984 the plaintiff lodged a claim for compensation under the
Compensation (Commonwealth Government Employees) Act 1971. In connection with that claim, a statement was obtained from Private Dykstra dated 26 July 1984 as follows:
"CPL Cavanough was observing (with CPL McCurdy) me cutting down a tree. When I informed them that dead fall was coming in their direction they began running ...
When CPL Cavanough was running he tripped and fell. He ran in the opposite direction to CPL McCurdy. The main body of the tree missed him, so that I can only assume that a limb of the tree did strike him."
Pursuant to the provisions of the Defence Inquiry Regulations an officer was appointed to investigate the circumstances surrounding the accident in which the plaintiff was injured. That officer was Lieutenant M.A. Wilkinson. His report is dated 26 July 1984. A copy of that report is in evidence. The original report has been unable to be located.
Lieutenant Wilkinson obtained statements from Corporal McCurdy, Private Dykstra and Captain Richards who was the medical officer who attended the plaintiff at the site of the accident.
According to Mr McCurdy's statement dated 24 July 1984:
"2. PTE Dykstra proceeded to cut the tree while CPL Cavanough and myself moved to a position inside the LZ directly behind PTE Dykstra. As the tree was nearly cut through I heard PTE Dykstra call to get out of the way. I saw the tree beginning to fall and ran to my left. CPL Cavanough was on my right. I did not see in which direction he ran.
3.
I heard the tree fall and turned to go back to see CPL Cavanough lying on the ground. PTE Dykstra and myself ran to him and while I remained with him PTE Dykstra ran to get the RMO. I removed deadfall in the shape of a branch that was lying across his torso."
| [9] | According to the statement obtained by Lieutenant Wilkinson from Private Dykstra dated 24 July 1984:- |
"3. When the tree was nearly cut through and beginning to topple the wind caught the tree and blew it back towards me towards the landing zone. I swung around and moved to my left to avoid being hit and at the same time shouted to CPL Cavanough and CPL McCurdy to get clear.
4. The tree toppled and while CPL McCurdy was well clear CPL Cavanough who was running in the opposite direction tripped and fell. The main body of the tree missed him by half a metre however I believe he was hit by a falling limb."
Lieutenant Wilkinson took photographs of a reconstruction of the accident showing the approximate positions of the plaintiff and Corporal McCurdy and the tree that struck the plaintiff. The photocopies of the photographs that are in evidence lack clarity.
Although it is not stated in Corporal McCurdy's statement expressly, Lieutenant Wilkinson in his report stated that Corporal McCurdy did not see the tree strike Corporal Cavanagh. That is implicit in Mr McCurdy's statement given to Lieutenant Wilkinson.
[12] The plaintiff consulted solicitors J.B. Stevenson & Co ("Stevenson") in August/September 1984 about his accident.
Stevenson wrote to the Australian Government Solicitor ("AGS") on 30 July 1985 advising that they were acting on behalf of the plaintiff in relation to his claim for damages arising from the accident. Stevenson also advised that "... the other witnesses in the immediate vicinity of our client were Cpl P.D. McCurdy, Lt Guy Sandstrom, Darren Doyle and Pte Steve Dkystra (sic)".
According to the affidavit of Ms C.C. Cameron filed on 13 March 2000, AGS caused statements to be obtained from McCurdy, Dykstra, Doyle and Sandstrom during September 1985. Those statements are not in evidence. Ms Cameron who is a solicitor employed by AGS states:-
"I have read those statements and noted that the statements are brief in nature. I am of the view that further detailed statements would be required to be taken from each of the witnesses in respect of the allegations contained in the Statement of Claim; and of the events of 20 June 1984 to assist the Defendant to properly defend this action."
By letter dated 26 February 1986 AGS advised that its investigations had been substantially completed and that the defendant denied liability as the plaintiff was engaged in activities of the nature of operations of war at the time he was injured.
By letter dated 8 August 1986 Stevenson provided AGS with copies of the medico- legal reports which had been obtained to that stage on behalf of the plaintiff. There were reports from Orthopaedic Surgeon Dr John Morris dated 22 October 1984 and 9 October 1985, report from Princess Alexandra Hospital dated 27 September 1984 and report from Neuro Surgeon Dr Michael Weidmann dated 23 November 1984.
These reports noted that the plaintiff sustained a compound depressed midline skull fracture and a Jefferson type fracture of the cervical spine. Treatment included immobilisation in a cervical collar for five months. It appears that the plaintiff was admitted to the Princess Alexandra Hospital on 20 June 1984 and discharged from that hospital to the Yeronga Military Hospital. Dr Morris in his first report noted that the plaintiff did not remember much about the accident itself nor much for two or three weeks afterwards. Dr Weidmann in his first report referred to the plaintiff suffering a retrograde amnesia of a couple of seconds and a post-traumatic amnesia of one to two days.
AGS obtained further statements from McCurdy and Dykstra during August 1986. These statements are in evidence. The statement of Mr McCurdy confirms that he did not actually see the tree strike the plaintiff. He states:-
"When the tree fell, it fell towards Corporal Cavanough and I. I ran one way and he ran the other. If he had run the same way that I had he would have got out of the road and wouldn't have been injured. The tree may have come down quickly and caught him or he could have tripped I cannot say."
Mr McCurdy offers a reason why the tree had to be cleared. Apart from the fact that he had received instructions from the plaintiff that the size of the landing zone had to be increased, he explains that the reason for clearing the extra tree was "because one helicopter had dropped its load and the second helicopter would not drop its load because the landing zone was not large enough". In respect of the actions of Mr Dykstra, Mr McCurdy states:-
"The tree was dead in the centre I think Corporal Dysktra (sic) had cut the tree correctly when it slipped to the ground the dead part at the top crumbled and fell in the opposite direction to normal."
According to Mr Dykstra's statement dated 18 August 1986, a New Zealand pilot had dropped one load and then an Australian pilot with the second helicopter approached, but would not drop the load because of a dead tree next to the landing zone. In relation to the felling of the tree Mr Dykstra states:-
"The tree started to fall in the direction away from the landing zone but I think that the wind from the helicopter waiting to drop its load pushed the tree back into the landing zone. I immediately shouted out to the others present to get out of the way. ... When the tree was coming down a limb separated from the main trunk and hit Corporal Cavanough. He could have tripped although I'm not sure. I feel that Corporal Cavanough should not have been there but as I am only a Private I could not tell him to go. The helicopter was circling around above all the time. The tree was fairly solid at its base and did not crumble but was blown in the opposite direction."
After the service of the writ, the defendant entered an appearance and served notice of that on Stevenson on 11 March 1987. The statement of claim was delivered on 25 March 1987.
| [21] | The particulars of the alleged negligence of the defendant which the plaintiff claims in par 3 of the statement of claim caused the accident are set out as follows:- |
"(a) By its senior officer Lieutenant Sandstrom:-
(i)
Failing to properly control the actions of the men under his command.
(ii)
Permitting a tree to be felled when it was dangerous and unsafe to do so.
(iii)
Failing to warn the plaintiff of the fact of a tree being felled.
(iv)
Failing to take any or any reasonable care for the plaintiff's safety.
(b) By its employee Private Dykstra:-
(i) Felling a tree without orders to do so. (ii)
Felling a tree when it was dangerous and unsafe to do so.
(iii)
Failing to warn the plaintiff of the fact of the tree being felled and/or of the danger of his location and/or of the fact the tree was falling in his direction.
(c)
The plaintiff will further rely upon res ipsa loquitor (sic) as evidence of negligence."
These particulars of negligence are in general terms.
The defendant required an extension of time to deliver the defence to enable further investigations into the accident to be carried out. The defence was delivered on 19 October 1987. In par 1(b)(iii) of the defence, the defendant alleges that the Army exercises at Shoalwater Bay "constituted training for the purpose of creating and maintaining a readiness for combat within the defence forces of the Defendant". In par 3(c) of the defence, the defendant claims that by reason of the matters alleged in sub-par (b)(iii) of par 1 of the defence, the incident "is not susceptible to an action for damages by the Plaintiff against the Defendant or any other person". In addition the defendant denies any failure to maintain a reasonable standard of care.
By letter dated 16 October 1987 AGS requested Stevenson to provide particulars of the plaintiff's special damages. Stevenson responded by letter dated 6 November 1987 advising that the only special damages would be the medical costs sought by the Department of Defence together with any moneys paid to the plaintiff under the Compensation (Commonwealth Government Employees) Act which may be the subject of a refund claim.
By letter dated 27 June 1988 Stevenson requested AGS to provide information relevant to the plaintiff's loss of income on the basis that he did not receive the promotions which he would have been likely to receive, but for the injury, and the plaintiff's special damages.
By way of response AGS provided Stevenson on 1 November 1988 with two career profiles prepared by the Army in relation to the plaintiff and advised that income details, as requested by Stevenson, would be forwarded when they had been received from the Army. Stevenson wrote a follow up letter to AGS on 19 July 1989. On 4 August 1989 AGS provided the salary projection which had been requested by Stevenson.
It appears that the plaintiff's file was still active in Stevenson's office during 1989. Apart from the correspondence with AGS, Stevenson obtained a medico-legal report from Psychiatrist Dr David Jenkins dated 22 May 1989 which was accompanied by reports from Brisbane Diagnostic Images Pty Ltd and Neurologist Dr John Cameron which were procured by Dr Jenkins and a report from Neuro Psychologist Maureen Field dated 24 February 1989. Stevenson had also obtained further reports from Dr Morris dated 24 August 1988, Dr Weidmann dated 6 September 1988 and Princess Alexandra Hospital dated 14 September 1989. None of these medico-legal reports were provided to AGS, when they were obtained by Stevenson. They were provided to AGS in connection with the subject application.
According to Mr Crawford's affidavit, the plaintiff wrote to Stevenson in April 1991 advising of his then current address and again in October 1991 advising in relation to his compensation claim and asking about progress in his Supreme Court action. The affidavit does not deal with any response that was received by the plaintiff from Stevenson, although Mr Crawford deposes to Stevenson's file revealing that a draft statement of loss and damage was prepared in 1991.
Mr Crawford exhibits a copy of a letter that the plaintiff wrote to Stevenson dated 10 March 1993 in which reference is made to a meeting which Mr Cavanough had with a solicitor at Stevenson in July 1992, but notes that he has not heard from the solicitor. That letter requests information as to what stage the solicitor is at with the plaintiff's case.
Mr Crawford's affidavit does not deal with events which transpired on the plaintiff's part after sending that letter dated 10 March 1993 until January 1997 when the plaintiff was informed by Stevenson that it was necessary to make an application for leave to proceed.
Mr Crawford exhibits a copy of a letter dated 23 May 1997 from the plaintiff to solicitor Mr Ron Carr at Stevenson in which reference is made to a visit in January 1997 and to the plaintiff being informed that "you would be putting my case up for court date, hopefully some time in June 1997." The letter also states:-
"2. My wife rang in March/April in regards to the case, however, you were not available. A message was left with your secretary to ring and advise me of were (sic) I stand. I am extremely anticous (sic) to find out when or if you have secured a court date. If you have not could you please advise me as to were (sic) I stand."
It appears that Stevenson prepared an affidavit for the plaintiff to swear in order to support an application for leave to proceed. That affidavit was signed by the plaintiff on 16 June 1997 and was filed by leave in support of the subject application.
The affidavit signed on 16 June 1997 is only two pages and lacks any specific detail about the contact between the plaintiff and Stevenson. The only specific contact which is mentioned is the plaintiff's recalling that during 1996 his solicitors had sought particulars from him as to the current whereabouts of various potential witnesses in the action and that he had responded to that request. Paragraph 4 of that affidavit states that "it has been difficult for me to maintain fluent contact with my solicitors and I set out below the places of my employment to the best of my recollection throughout the period of the conduct of this action".
Between February 1988 and January 1991 the plaintiff was based in Brisbane, but between January 1991 and January 1994 he was based in Liverpool, New South Wales. It appears that he returned to Brisbane until July 1994 when he was posted to the United Kingdom until December 1994. He was in Brisbane again between December 1994 and August 1996 and from then until he swore the affidavit, he was in New South Wales.
After sending Stevenson the letter dated 4 August 1989, the next contact AGS had in relation to the action was a letter from Stevenson dated 10 October 1995 enclosing notice of intention to proceed after the expiration of one month. AGS responded to that letter by referring to O90 r9(2) of the Rules of the Supreme Court and pointing out that no fresh proceeding could be taken without the order of the court or a judge. The letter warned that given the lapse of time and the likely prejudice to the defendant's case, AGS "must revert to the Supreme Court Rules".
A solicitor employed with Stevenson had a telephone conversation with Ms Cameron in May 1996 to ascertain whether there would be strong opposition to an application for leave to proceed. Ms Cameron advised that she anticipated that such an application would be strongly opposed.
AGS heard nothing further from Stevenson about re-activating the action. AGS sent a letter dated 3 January 1997 to Stevenson referring to the telephone conversation in May 1996 and the letter of 14 November 1995 and advising:-
"I confirm my previous advices that should your client intend to bring an application for leave to proceed, it would be my client's intention to oppose same."
| [37] | Despite Stevenson being aware of the need to make an application to proceed and obtaining an affidavit from the plaintiff for that purpose, no application was filed. |
No explanation is offered by the plaintiff about his contact with Stevenson after signing the affidavit in June 1997. Mr Crawford deposes to the plaintiff being told by Stevenson that the application for leave to proceed would be undertaken and that "he left matters in their hands trusting them to deal with the matter professionally and correctly". In the light of the contents of the plaintiff’s letters to Stevenson dated 10 March 1993 and 23 May 1997, there does not appear to have been the justification for such trust. The plaintiff has not descended into detail of his relationship with Stevenson to show that such trust existed.
Mr Crawford deposes to being informed by the plaintiff that by November 1999 he was so dissatisfied with Stevenson's performance that he complained to the Law Society which resulted in Stevenson's handing their file over to the Law Society. The plaintiff consulted Spranklin Solicitors on 24 November 1999. On 25 November 1999 Spranklin Solicitors advised of the plaintiff's intention of bringing an application for leave to proceed as soon as possible.
Mr Crawford's affidavit in support of the application was sworn on 10 December 1999 and a copy provided to AGS on that date. It appears that the plaintiff's current solicitors and AGS liaised about appropriate dates for the hearing of the subject application and time was required by AGS to make inquiries about witnesses and possible prejudice. The subject application was filed on 28 February 2000.
Mr Blaxland of Counsel who appeared for the plaintiff relied on the statement of the High Court in William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496 in dealing with an equivalent rule:-
"What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them, and it follows that it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes."
This statement has itself been considered in many cases. Both Mr Blaxland and Mr Adam Johnson of Counsel who appeared for the defendant relied on the statement found in the judgment of Connolly J with whom the other members of the Full Court agreed in Dempsey v Dorber [1990] 1 QdR 418, 420:-
"The question whether there is good reason for making such an order obviously involves a consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter ... In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order ... . The other factor which will always be relevant where an application is made under O.90 r.9 is whether the defendant is likely to suffer prejudice as a result of the delay."
Mr Blaxland submitted that the plaintiff had explained the delay and that his former solicitors where at fault. Mr Johnson submitted that the plaintiff had not provided a sufficient explanation for the delay of his solicitors nor of his own delay. One matter relied on by the defendant in this respect is the fact that there was no affidavit from the plaintiff providing a personal explanation for the delay and his involvement. The question is, however, whether there is an explanation and it is not critical that the explanation be given by the plaintiff personally.
Although the last step in the action was the delivery of the defence on 19 October 1987, correspondence continued between the parties' solicitors until 4 August 1989. An explanation therefore needed to be provided for, at least, the period from 4 August 1989 until November 1999.
Mr Crawford stated in par 5 of his affidavit:-
"I am informed by the Plaintiff, and verily believe, that he regularly kept in touch with Stevensons. He would do this either by telephone, correspondence or personal attendance. Further, he would sometimes undertake such communications through his wife with Stevensons when he was unable to give the instructions himself. The Plaintiff further informs me, and I verily believe, that Stevensons told him the action was proceeding satisfactorily and that he accepted such information and advice since he trusted his solicitors and believed that personal injuries cases could take quite some time to work their way through the Court system."
To the extent that reference is made to correspondence, I have treated that paragraph as referring only to the correspondence that is identified specifically in the affidavit. In relation to telephone or personal attendance by the plaintiff on Stevenson subsequent to 1989, I can infer from matters identified from Stevenson's file in Mr Crawford's affidavit that some such attendances did in fact take place. To the extent that the plaintiff relies on communications made through his wife with Stevenson, there is a reference to telephone calls by the plaintiff's wife in March/April 1997 in the letter dated 23 May 1997. Without reference to specific occasions of attendances to chase up Stevenson by either the plaintiff or his wife, it is not possible to rely on the general statements in par 5 of Mr Crawford's affidavit for evidence of contact between the plaintiff and his solicitors during the periods in which there is otherwise no supporting evidence for that contact. These periods are particularly between 10 March 1993 and January 1997 and between June 1997 and November 1999. I do not consider that there is an explanation for the delay on the plaintiff's part during those respective periods.
The lack of a satisfactory explanation for delays does not dispose of the application. That must be weighed up with the question of any prejudice caused to the defendant by the delays.
The defendant also submitted that it was relevant to a failure to provide an adequate explanation for delay that the plaintiff was able to seek legal aid advice in relation to his personal injuries action from the Australian Defence Force Service Lawyer. As the plaintiff had retained Stevenson to act for him, his explanation for delay should be considered in the light of what the plaintiff and Stevenson did, rather than speculating what the plaintiff could have done to obtain other advice.
| [48] | There are four aspects of prejudice by the passage of time relied on by the defendant: | |||||||
|
The presumption of prejudice due to long delay (which may not even be recognised by a party or witness) is particularly relevant if liability remains an issue: Dempsey v Dorber [1990] 1 QdR 418, 420. Although the defence of the defendant based on dicta in Groves v The Commonwealth (1982) 150 CLR 113 (reflected in para 1(b)(iii) of the defence) may involve a question of law, if that defence were not successful, the question of negligence of the defendant in causing the injury would be in issue.
The key witnesses on liability appear to be Messrs McCurdy and Dykstra. In view of the nature of the injuries which the plaintiff suffered in the accident and consistently with what is noted in the medical reports about his recall of the accident, it is unlikely that he would ever have been able to give much evidence about the events of the accident, despite what he has told Mr Crawford about how the accident occurred. For the plaintiff, it is submitted that as Messrs McCurdy and Dykstra are available and "have a fair recall of what occurred", there is no real prejudice suffered by the defendant. The defendant disputes that Messrs McCurdy and Dykstra have "a fair recall" of the accident.
AGS obtained a further statement from Mr McCurdy dated 30 December 1999. In comparison to his 1986 statement where he recalled that a helicopter would not drop its load because the landing zone was not large enough, McCurdy now states "I do not now recall if on the particular occasion the LZ was being cleared to have ammunition delivered or to allow a helicopter to land". Unlike Mr McCurdy's statement made in July 1984 when Mr McCurdy could recall hearing Private Dykstra call to get out of the way, Mr McCurdy now states:-
"I don't recall if I saw the tree coming down and that caused me to decide to move; or if I heard the soldier who was cutting the tree, give a warning. When we heard the tree coming down, Cavanagh and I moved. I do recall the soldier cutting the tree yelling out; he ran in one direction, I ran in another and I assumed Cavanagh was coming with me as it was obvious that the tree was going to come down."
AGS obtained a statement from Mr Dykstra on 6 January 2000. Although Mr Dykstra has a recall of cutting the tree down he states that he does not "recall a specific events or facts leading up to the incident when Cavanagh (sic) was injured". Whereas in his statement dated 18 August 1986 he recalls shouting out to the others present to get out of the way, in his recent statement he does not recall whether he called out as the tree was falling. In the recent statement he recalls there were two helicopters operating to drop ammunition on that day, and that one of the helicopters was still hovering while carrying the load of ammunition, but he speculates that both helicopters may have been there. In the recent statement Mr Dykstra also states "I think perhaps it was the downdraft from the helicopter which had caused one of the branches to go in a different direction from the path of the tree".
The cause of the tree falling when it did and where it did, the involvement of any helicopter or helicopters and whether a timely warning was given by Mr Dykstra are factual matters which would need to be canvassed in considering whether the injury was due to the defendant’s negligence.
A comparison of Mr McCurdy's statements made in 1984, 1986 and 1999 shows that there has been a deterioration in his recollection about the subject accident in material respects. A similar comparison of Mr Dykstra’s statements made in 1984, 1986 and 2000 shows a variance in recollection in material respects which should be inferred as being due to deterioration caused by the passage of time.
It does not appear that the plaintiff endeavoured to obtain any statements from these two witnesses at any time. In fact, the plaintiff does not disclose having obtained any statements in connection with the action.
With respect to the prejudice claimed by the defendant in being unable to locate the witnesses Doyle and Sandstrom, they do not appear to be essential witnesses. The loss of the records from Princess Alexandra Hospital does not appear significant when the plaintiff was discharged to the Military Hospital which has retained its records. As for the prejudice claimed from Dr Jenkins having destroyed his records and neither Dr Jenkins nor Dr Weidmann having any recollection of the respective consultations, the respective reports are available and there is the opportunity now for the defendant to be examined by medical specialists for the purposes of the action. It is not clear for what purpose the original photographs in Lieutenant Wilkinson’s report would be required. It does not follow that the defendant would be prejudiced by those original photographs not being available.
The plaintiff relied on the fact that as the plaintiff was still a serving member of the Army, he had annual medical check-ups. It is apparent from the documents relating to those check-ups, that they are for operational purposes and not for medico-legal purposes.
There are no uptodate medico-legal reports in respect of the plaintiff. The submission was made on behalf of the plaintiff that it was more likely to be the plaintiff, rather than the defendant, who was prejudiced by the delay in relation to medical evidence. It is difficult to judge that, due to the lack of uptodate medical reports.
The plaintiff submits that the action is “very close to being ready for trial”. What has been disclosed in connection with this application does not support that submission.
Having regard to the delay of ten years since there was activity in connection with the plaintiff’s action that was the subject of communication with AGS, the lack of explanation on the part of the plaintiff for significant periods of delay, the likely prejudice simply because of that delay and the prejudice which has been shown on the evidence to exist in relation to the evidence of the critical witnesses, McCurdy and Dykstra, the plaintiff cannot be successful in obtaining leave to take a new step in the action. The application must be dismissed.
I will hear argument on the question of costs of the application.
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