Platts v Commonwealth of Australia

[1999] QCA 112

99.112

COURT OF APPEAL

McMURDO P DAVIES JA THOMAS JA

CA No 6493 of 1998

JAMES MICHAEL PLATTS	Plaintiff/Appellant
and
THE COMMONWEALTH OF AUSTRALIA	Defendant/Respondent

BRISBANE
..DATE 12/04/99
THOMAS JA: This is an appeal against the refusal
of a Chamber Judge to grant leave to the plaintiff
to proceed pursuant to Order 90 rule 9 sub-rule 2
of the Rules of Court. His Honour in turn
dismissed the plaintiff's action.

The incident the subject of the proceedings is said to have occurred on 29 November 1985. The application was heard by His Honour in April and June 1998.

The relevant facts are adequately set out in the
reasons for judgment of the learned Chamber Judge

and it will not be necessary to repeat them here.

No error is suggested as apparent in the reasons

for judgment in relation to any principle or in
the exercise of discretion, except one point with

which I shall deal in due course.

The material relied on by the plaintiff suggests
that an Army vehicle in which the plaintiff was
travelling in 1985 ran over a rut or pothole. The
persons alleged to have been in the vehicle were
the driver (Mr Kerr), a front seat passenger
(Lance Corporal Teys) and two persons in the rear

of the truck, namely the plaintiff and a Mr Munro.

As His Honour observed, the action now concerns an
incident that occurred over 12 and a half years
ago, and the last proceeding in the action had
been taken over six and a half years before the
matter was brought before His Honour.
The action was in fact not commenced until the day
before expiry of the three year period of
limitation and then a further period of
approximately 11 months elapsed before the writ

was served.

The first particulars which would indicate the
date and place of the incident relied upon would
seem to have been in the statement of claim which
was not delivered until July 1991. In that
statement of claim it was alleged that on the day
in question the plaintiff was seated in the back
of the truck driven by Kerr and was travelling
back to barracks in Townsville along an unsealed
wet road which contained potholes and ruts. It
was alleged that during the journey the truck ran
over a large pothole or rut and the plaintiff was
dislodged from his seat and fell, as the statement
of claim said, onto the floor, although, as was
clarified before His Honour, the present
allegation is that he fell back onto the seat on

which he had been originally sitting.

The driver's negligence was alleged as driving at
an excessive speed, failing to keep a proper
lookout, failing to stop, slow down or steer clear
and in failing to warn the plaintiff that the
truck was about to hit the pothole or rut. The
Army was also said to have been negligent in
failing to provide instruction to Mr Kerr on a
safe method of driving on an unsealed road and in
failing to provide seat belts for those seated in
the rear. As His Honour observed, the allegation
concerning failing to provide instruction is
really a secondary matter which could only be
considered in the light of evidence of the
original driving and of the actual circumstances
on the day in question.
The plaintiff claims to have suffered an
aggravation of a soft tissue nature of a pre-
existing spondylolisthesis which led to surgery
and permanent disability. The defendant denied

negligence and alleged contributory negligence.

The critical witnesses in relation to this action
are surely the driver and the front seat
passenger. Their memories are now non-existent.
In late 1997 statements were taken from these
persons. Although their minds were brought to
bear on the alleged incident by being referred to
the plaintiff's allegations, none of them has any
recollection whatever of its having occurred. The
same may be said of Warrant Officer Allan who was
the person nominated by the plaintiff as the
person responsible for requiring him to travel in
the rear of the vehicle.
The learned trial Judge stated:

"Whereas the plaintiff has the advantage of
two witnesses to support his case on

liability-----"

(I interpolate that is himself and Mr Munro)

"-----the defendant is now left in the
position that the two men who could possibly
have given cogent evidence about the essence
of the case against it,
Mr Kerr and Warrant Officer Teys, have no
memory of the alleged incident. It is not
unreasonable to attribute their absence of
memory to the lengthy delay between the
incident and their first being asked to try

to remember it."

Mr Fleming QC, on behalf of the appellant,
submitted that even if these persons had been
asked in 1991 in relation to the incident there is
no reason to think that either of them would have
recalled the incident. On this basis, he submits

that it

follows that nothing has changed and that

prejudice to the defendant has not been shown.

I do not accept this particular argument. Who
could say after 12 and a half years, of an
incident of which the witness now remembers
nothing, that he would or would not have
remembered it if asked about it eight years ago?
It is the prejudice to the chance of a fair trial
with which the Court is concerned. Such problems
cannot be measured in quantities. As Justice
McHugh observed, there are many subtle ways in
which a fair trial may be prejudiced by the
passage of time. His Honour cited with approval
the statement "What has been forgotten can rarely
be shown." (Brisbane South Regional Health
Authority v. Taylor (1996) 186 Commonwealth Law
Reports 541, 551, 557.)
The delay for which the plaintiff's solicitors in
this case are said to have been substantially
responsible has undoubtedly contributed to a large
extent to the difficulty in which the defendant is
now placed. In particular the failure of the
memory of the driver would seem to be a vital

factor in the litigation.

The fact that the defendant's advisers have also
been dilatory in the pursuit of witnesses is quite
a relevant matter but it does not falsify His
Honour's findings. The delay for which the
plaintiff's solicitors are substantially
responsible has undoubtedly contributed to a large
extent to the difficulties in which the defendant
is now placed. All the delay, including that
preceding the commencement of the action and that
which followed is now relevant in the

determination of an application of this kind.

Accordingly, when His Honour concluded that there
was a substantial risk that a fair trial would not
now be possible and that the delay had caused
serious prejudice to the defendant, I would regard
His Honour's conclusion as unassailable. No error
in the exercise of the discretion has been
established.
Accordingly, in my view, the appeal should be

dismissed.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The order is the appeal is dismissed.

MR NORTH: May I ask for costs?

THE PRESIDENT: With costs. The order is the appeal is dismissed with costs.

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