HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

Judgment Number: [2003] TASSC 68

RICKY JOHN AYLETT v HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA, DARREN HENNESSY and DAVID SMITH

1 This is an application by the plaintiff in an action for damages against the Attorney-General and two school teachers for leave to take the next step in the action pursuant to the Supreme Court Rules 2000, r56. The action which was commenced by writ dated 11 May 1987 seeks damages for personal injuries caused to the plaintiff by the negligence of the teachers as servants of the Government of the State of Tasmania on 5 December 1984. At that time the statement of claim alleges the plaintiff was a pupil at the Latrobe High School and was injured in the course of a school excursion through bush at Quamby Bluff, when a fellow pupil, Robert Weekes, ahead of the plaintiff, dislodged a rock which fell onto the plaintiff's head causing him injuries and damage. The particulars of negligence ascribed to the teachers in an amended statement of claim are that they:

"(a) Failed to enquire or enquire sufficiently of the Plaintiff and his companions as to whether they had been bush-walking or climbing before and as to the extent of the experience of each of them in bush-walking and climbing.

(b) Permitted and encouraged the Plaintiff and certain fellow students including the said Robert John Weekes to climb Quamby Bluff, from the Baptist Youth Camp on the Lake Highway nearby, about 500 metres above sea level, towards its summit, about 1,226 metres above sea level, through bush land by a route other than a man-made track, when they knew or ought to have known that the Plaintiff and his companions were not sufficiently experienced in bush-walking or climbing to be allowed to do so.

(c) Failed to check the said route for loose rocks before allowing the Plaintiff and his companions to climb by that route.

(d) Failed to warn the Plaintiff and his companions to be careful not to dislodge loose rocks.

(e) Failed to warn the Plaintiff and his companions to beware of loose rocks falling towards them.

(f) Failed to warn the Plaintiff and his companions to call out a warning if one of them encountered or dislodged a loose rock.

(g) Failed to prevent the Plaintiff from following so close behind the said Robert John Weekes that the Plaintiff could be struck by a falling rock dislodged by the said Robert John Weekes.

(h) Failed to ensure that the Plaintiff was wearing any, or any sufficient safety equipment.

(i) Failed to instruct the Plaintiff of the likely risks to be encountered on the track to the summit of Quamby Bluff.

(j) Failed to provide the Plaintiff with a safety helmet, or to ensure that the Plaintiff wore or used a safety helmet, while ascending the track to the summit of Quamby Bluff.

(k) Failed to monitor, adequately or at all, the progress of the pupils over the area where the rock fall occurred.

(l) The Second-Named Defendant, having advised the Plaintiff and the other pupils who were in the same group as the Plaintiff, that it was appropriate for them to climb by a route through the area in which the rock fall occurred:-

(i) Failed to ensure that no loose rocks were present on the path which the pupils would take in climbing that area;

(ii) Failed to ensure that the pupils proceeded to climb the route at such intervals that if a rock fall occurred, it not endanger the safety of any other pupil and so that when any pupil was climbing the route, no other pupil was present thereon.

(m) Failed to ascertain whether any alternative and/or safer routes were available before permitting the pupils to climb the area in which the rock fall occurred.

(n) Failed to ensure that the pupils, including the Plaintiff, climbed through the area on which the rockfall occurred by the defined or established route."

2 Among the plaintiff's alleged injuries are the following:

(b) Depressed fracture of the skull (right tempero-parietal area);

(c) Laceration to temporal area of the brain, and extensive tearing of the covering membranes of the brain;

(d) Injury to the eardrums and inner ear, resulting in bilateral hearing loss and difficulties with balance;

(e) Brain damage, resulting in permanent impairment of memory and intellectual functioning; personality change, problems with concentration, calculation and abstract thinking; headaches; sensitivity to noise; irritability; distractibility; diffidence; passivity; periods of anxiety;

3 The plaintiff, aged 16 years at the time of the incident, went with a group of about 30 fellow Grade 9 students to a camp in Golden Valley near Quamby Bluff. The aim of the camp was to teach aspects of bush craft and bush walking. Prior to attending the camp he had not bushwalked before. Despite having injured his ankle, he was required to accompany the rest of the group on an excursion to Quamby Bluff during the course of the camp. The sequence of events is related in the following paragraphs of his affidavit in support:

"8 At the start of the walk we stayed together as a fairly large group. At the beginning the walk was fairly easy and we were on a defined track. After a time the group started to spread out a fair bit with the teachers Mr Hennessy and Mr Smith (defendants in this action) at the front. Mrs Lancaster and Miss Marker were towards the rear of the group. I was walking in about the middle of the group with two of my friends Robert Weeks (sic) and Jody Goss. At one stage I can recall being piggybacked by one of these due to the pain in my injured ankle.

9 After about the first thirty minutes or so the track started to disappear and after a while it was simply a matter of everyone finding their way through the light scrub. We were not called back together as a group with everyone just continuing walking and trying to work out as best as possible where to go. The four teachers appeared unfamiliar with the walk and were not able to assist us to locate the proper track. We walked in this type of terrain for about an hour with everyone climbing in a general upwards direction looking for the tracks at the same time. At no time were we told to stop walking.

10 There was then a rough regrouping. The teachers Mr Smith and Mr Hennessy went ahead with the first group of students with Robert Weeks (sic), Jody Goss and me forming our own little group in about the middle with the rest of the students and Mrs Lancaster and Miss Marker following behind. The front group disappeared and we were just following their voices not really knowing which direction they had taken. At that time we had come out of the forest and were then starting to go up reasonably rough terrain with logs and other obstacles to be negotiated.

11 We came to the bottom of a type of steep rocky bank. It appeared to be about 7 metres high in two stages. There was no track or markers on the bank but it looked like that we might have been able to climb the rocks to the top of the steep bank. I saw Mr Hennessy at the top of this rocky bank looking down at us. We shouted up to Mr Hennessy as to whether we could climb up the steep bank to the top where he was. He then slid down roughly on his bottom down the bank to where we were. He told us that we could go up the bank and after saying that he immediately left us and continued on further down the hill. I learned later that Mr Hennessy, Mr smith and the students they were with had not climbed this bank but rather skirted around the sides of it.

12 Robert Weeks (sic) started climbing the bank in front of me. He seemed to be using a normal climbing motion with hands and feet, almost like climbing a ladder. I then started climbing up behind Robert and I estimate that I was about one and a half metres behind him. Robert was almost to the top of the bank when I heard him yell out to me. I don't remember the exact words that he used. I do not recall how I suffered my head injuries but I was told later by Jody Goss, Robert Weeks (sic) and the other students and verily believe that Robert Weeks (sic) dislodged a large boulder which fell down and struck me causing me to fall back onto rocks and to the bottom of the bank we were climbing.

13. I believe I then lost consciousness. My next recollection is being transported through the bush on a stretcher and I remember blood coming from my ear. I can remember seeming to drift in and out of consciousness between when I was transported by helicopter and then to Hobart. I can recall the stretcher I was on being caught in the trees as I was being winched up to the helicopter and I can recall vomiting in the air ambulance. My continuous recollection of events thereafter commences after I came out of surgery at the Royal Hobart Hospital.

14. As a result of the fall I suffered a severe fracture of the skull in two places, a laceration to part of the brain, tearing of the membranes of the brain, injury to the eardrums and brain damage."

In cross-examination, when asked details of the steep rocky bank he had described in his affidavit and whether it was in a clearing or light scrub, he said:

"A I don't remember. It could be in the clearing, it could be in the scrub. I don't remember. All I remember from the accident site was, there was a little bit of a wall in front of us, a little bit of a ledge. There was a teacher in front of us. We asked permission whether we could climb this bit of a bank. He slid down. He said it was okay, that we could continue, because we thought the other students went up there. Robert was in front of me. He yelled out something or other. I remember putting my hand up and that's as far as I remember anything else.

Q Okay. You say, a little bit of a wall in front of you. How high?

A Probably five metres. I honestly can't recall and I could not give you an honest answer whether it was five metres, three metres, two metres. It wasn't much of a wall."

4 The plaintiff's father consulted solicitors in Devonport on or about 17 December 1984 and an application for legal aid was forwarded to the Australian Legal Aid Office by that firm with a covering letter dated 18 December 1984 seeking assistance for the purposes of investigating the possibility of instituting the present action. Enquiries were carried out in 1985 and in February 1986 aid was granted to institute proceedings. Throughout that year the plaintiff's then solicitors sought various medical reports on his condition and the writ was issued on 11 May 1987. By this stage the solicitors were in possession of several medical reports, notes of hospital records and statements of Robert John Weekes and Jody Goss, the two eye witnesses to the incident. A notice of appearance was filed on behalf of all three defendants by the Director of Public Prosecutions in September 1987.

5 On 9 December 1987 the plaintiff's Devonport solicitors forwarded the file to a Burnie firm of solicitors. The plaintiff had moved to King Island in 1986 to live with his grandparents. His parents had divorced and he found living with his father had created some tensions between them. The solicitor first consulted had left the firm to go to the Bar in Hobart and the plaintiff's father decided to engage the Burnie solicitors. Thereafter the matter progressed in fits and starts. By late 1991 numerous further medical reports had been procured and by August 1992 the solicitor handling the matter told the plaintiff that he would brief Mr J K Levis to act as counsel at the trial. Despite numerous enquiries and reminders from the plaintiff and a Mr Rushton who had befriended him on King Island, complaints to the Attorney-General and another politician and to the Legal Aid Commission of Tasmania, the Burnie solicitor failed to give any satisfactory explanation for the reasons why the case was not readied for trial. There were occasional flurries of activity by him, but the years kept passing without any significant progress.

6 In February 1995 the plaintiff was given leave to amend his statement of claim. The same month an unopposed application for leave to proceed was granted. On 28 March 1995 the Burnie solicitor wrote to the plaintiff advising of the last two steps and an indication was given that the case would be listed for hearing in the October 1995 sittings at Burnie or the following month in Launceston. He also said he would seek discovery and prepare interrogatories for the examination of the second and third named defendants. On 30 June 1995 he advised the plaintiff in writing that the interrogatories were not yet completed due to pressure of work commitments. On 31 August 1995 he wrote to the plaintiff advising that he would be conferring shortly with the Office of the Director of Public Prosecutions with a view to ensuring that all pre-trial steps were completed and the matter set down for trial. It does not appear that any interrogatories were prepared by him.

7 Eventually a conference took place on 20 December 1995 and in January 1996 the defendants' solicitor discovered to the plaintiff's solicitor a school report on the incident. On 14 February 1996 the Burnie solicitor reported to the plaintiff on the conference and asked him to sign various authorities for the defendants' solicitor to inspect his hospital records. The next day discovery by list was made by the Burnie solicitor. An updated medical report was sought by him from a psychiatrist on 8 March 1996. Thereafter the file does not disclose any further activity by the Burnie solicitor towards advancing the case. On 8 February 1999 the plaintiff wrote to him a letter to this effect:

"I am writing in regard to our telephone conversation during November when we discussed my compensation claim.

In that conversation, you ensured you would contact me prior to Christmas which you never did. We are now into February and I still have not heard from you. I need to know if this case has progressed at all, and if not, why?

In our conversation you were waiting to speak to Mr Levis, this has been on going for at least the last twelve months.

I want this finalised within six (6) months. If this is unreasonable please contact me to explain why. (I feel 14 years is long enough).

If you do not have the time to pursue this case, do not hesitate to contact me, on the above address or phone number, so other arrangements can be made."

On 1 April 1999 the plaintiff wrote a further letter saying that in view of the Burnie solicitor's lack of response to his letter of 8 February 1999 he had decided to allow another solicitor to finalise his compensation claim and asked him to pass the file to that solicitor.

8 Shortly before the two last-mentioned letters, the plaintiff had spoken to another Devonport practitioner who was then visiting King Island and who agreed to take over the case for him. He indicated that personal injury cases were not within his usual line of work, but that he would try to obtain the assistance of Mr T J Ellis, a practitioner in private practice in Launceston, to either take over the case or assist him with it. The plaintiff made several telephone calls to the Devonport practitioner's office and wrote to him on 25 October 1999, 12 November 1999 and 8 February 2000, but it appears that nothing at all was done to advance the case and the letters were not replied to. In the course of telephone conversations to the practitioner's office, the plaintiff learned that Mr Ellis had been unable to assist because he had left private practice. In May 2000 the plaintiff spoke to a Wynyard solicitor, Mr Smith, outlining the problems he was having with the last two solicitors he had engaged. Mr Smith did not engage in this field of practice but agreed to speak to the Devonport solicitor and to try to procure some action. His telephone calls were not returned. The plaintiff asked the Devonport practitioner to return his file, which the Burnie solicitor had despatched on 22 October 1999, and the Devonport practitioner did so on 10 July 2001.

9 The plaintiff read through his files and spoke again to Mr Smith by telephone. Mr Smith advised him that a barrister should be engaged to provide an overall opinion as to how the claim could be progressed. The plaintiff agreed to this course and to hand the voluminous file to Mr Smith when he next came to King Island. This he did in January 2002. Since then the solicitors handling the case for the plaintiff have proceeded with due despatch. No issue was made of the delay from January 2002 onwards.

10 The plaintiff is presently a plasterer's assistant in Victoria. While on King Island he did some farm labouring work, but was a disability pensioner. He has no legal training and knew nothing about statutory limitation provisions, nor of the necessity to procure leave to proceed if an action was not pursued with diligence. He is wholly blameless for the inordinate and inexcusable delays which have occurred in this sorry saga. Despite the frustrations to which he was subjected by those other than the late Mr Levis who had accepted the responsibility of acting as his legal advisers between early 1988 and mid 2001, he persisted admirably in endeavouring to advance his case and to bring it to finality.

11 The Supreme Court Rules 2000, r56(1), provides:

"(1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge."

12 The High Court equivalent of the rule was considered in William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6; (1963) 109 CLR 490. In a joint judgment, McTiernan, Kitto, Taylor and Owen JJ said of the rule at 496:

"With respect, we think the learned judge fell into error in construing the rule as he did. Its purpose is not to enable the Court to insist that an action shall proceed and to fix times within which further steps shall be taken. 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."

In Kaats v Caelers [1966] Qd R 482 it was held that the relevant matters for enquiry are whether the plaintiff has a satisfactory explanation for his delay and whether the defendant will in fact suffer prejudice as a result of the delay. Delay by an applicant's adviser does not fall into the same category as delay on the part of the applicant himself. As Underwood J said, in Williams v Smith [1984] Tas R 176 at 186, when affirming this proposition:

"In Ulowski v Miller [1968] SASR 277, at pp282,283, Bray CJ adopted the remarks of Diplock LJ in Allen v Sir Alfred McAlpine and Sons Ltd [1968] 1 All ER 543, [1968] 2 QB 229, and said:

'I agree that there may be a distinction between delay for which the plaintiff is personally responsible and delay for which his solicitors alone are responsible. The former will operate more severely against him than the latter when the question of his hardship is being considered.'

See also Mavra v Logan (1980) 24 SASR 567 and the cases cited therein."

See also Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 where, at 435, Barwick CJ said in respect of the discretion to extend time within which to commence proceedings against the Nominal Defendant:

"Some acceptable explanation for the failure of the appellant to sue in time must be given before the court is required to consider the substantial question whether it would be just to grant the extension. The door, as it were, must first be opened. No hard and fast rule can be stated defining what may be an acceptable explanation. But at least, in my opinion, it should be held that it is the litigant's failure to sue in time which must be satisfactorily explained. However much in some fields the client must suffer for his solicitor's acts done on his behalf, in this field the litigant is not necessarily, in my opinion, to be saddled with responsibility for all that his solicitor does or does not do. It seems to me to be implicit in the views of the Court in Sophron's Case (1957) 96 CLR, at p 474, where it says that the blamelessness of the client and the responsibility of the solicitor are material considerations, that the client's reasonable acceptance of a solicitor's advice, the solicitor having been properly apprised by the client of all the materials, relevant facts and circumstances within his knowledge, may be a sufficient explanation of the failure to take action within time."

13 The next principal issue is the question of prejudice to the defendants. No specific prejudice is claimed, although it emerged from the cross-examination of the plaintiff on his affidavit that one material witness, namely Robert Weekes, is no longer alive. Precisely when he died is not known, but the plaintiff said that he had read of his death in the newspaper "a couple of years ago". On the other hand a comprehensive report by the school authorities by those in attendance at the scene, including the second and third named defendants, was made early in the piece and was the subject of discovery of documents. Although the plaintiff and Mr Levis were unable to locate the precise area where the plaintiff suffered his injuries when they sought to view it, the report contains considerable detail about the topography. Obviously after so many years recollections will have dimmed, but there is no reason to conclude that a fair trial of the case cannot, or is not likely, to be achieved. No reasons have been advanced why prejudice is likely to have been suffered by the defendants in contesting the medical aspects of the plaintiff's claim by reason of the plaintiff's delay.

14 I am satisfied that the plaintiff has an arguable case against the defendants in negligence. A duty of care was clearly owed by the defendants to the 16 year old school boy and his companions in their charge while on an excursion through the bush on an unmarked route and over rough terrain, including a steep rocky area of rising ground or cliff (Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91). There was a foreseeable risk of injury to inexperienced students from traversing such terrain, either from their own actions or those of their companions. There was arguably a breach of the duty and the response of the defendants to the foreseeable risk. Having regard to the expense, difficulty and inconvenience of taking alleviating action (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47, per Mason J) I accept the submission of counsel for the applicant that there was a series of steps which could reasonably have been taken with a view to preventing a risk of this kind of injury. They included:

(a) the teachers could have checked or walked the route to ensure that it was a suitable route for apparently inexperienced bush walkers;

(b) having led the group to the bottom of the rocky platform where the incident occurred, the teachers could have directed the group to stay at that point while they checked for the safest route to the top;

(c) the students could have been directed to wear safety helmets by the teachers to eliminate or reduce the risk of serious injury;

(d) instructions could have been given to warn the students against climbing the rocks following too close behind each other lest a rock fall occur;

(e) teachers could have been spread throughout the group so as to ensure the presence of one teacher within a small group, including that to which the plaintiff belonged;

(f) the teachers could have issued clear and stern warnings to the students not to deviate from the main route or become separated from the teachers;

(g) the teachers could have desisted from pursuing the walk once the terrain became difficult and unmarked.

15 In my view, in all the circumstances of the case, an adequate reason has been shown why in justice the plaintiff should be allowed to pursue this action. Accordingly, the application is granted and leave given to him to take the next step.