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:-
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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.
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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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