Carr v Ballina Shire Council

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20570/2002 - DANIEL GARY CARR v BALLINA SHIRE COUNCIL (FORMERLY TINTENBAR SHIRE COUNCIL)

JUDGMENT (Extension of time - ss 60G & I; 1964 diving accident - quadraplegic) 1 MASTER: By notice of motion filed 12 December 2002, the plaintiff seeks an order pursuant to s 60G of the Limitation Act 1969 (NSW) (the Act) extending time within which to commence proceedings. The plaintiff relied on his affidavit sworn 5 December 2002 and the affidavit of Tony Love sworn 10 December 2002. The defendant relied on the affidavits of Wendy Jane Lohse sworn 31 March 2003 and 17 July 2003, Peter Rhos Morgan sworn 31 March 2003 and Steve Vrtkovski sworn 3 April 2003. 2 The plaintiff was born on 13 December 1949 and is currently 53 years of age and resides in Empire Vale near Lismore. On 25 December 1964 (Christmas Day), aged 15 years, the plaintiff and his parents and family attended Lake Ainsworth, Lennox Head for Christmas celebrations. Lake Ainsworth was a lake incorporated in the Lake Ainsworth Recreational Reserve at Lennox Head. On 25 December 1964, Lake Ainsworth contained within it a wooden structure designed, constructed and used as a diving tower. At about 2.00 pm the plaintiff dived from the tower and struck his head on the bottom suffering immediate quadriplegia. 3 In approximately 1968, the plaintiff's uncle who lived in Sydney, advised the plaintiff's parents that he should try to get some form of compensation from the Council. The plaintiff recalls that his Uncle Ron said that they should try to do something now as he thought that the statute of limitation period expired within 7 years from the date of his injury. The plaintiff's uncle wanted the plaintiff to see a solicitor in Sydney, however, his parents could not afford that. The plaintiff's father spoke to a solicitor in Ballina by the name of Ross Reid who referred the plaintiff Mr Balzer a solicitor in Lismore. 4 In 1969, the plaintiff and his parents consulted Mr Balzer who commissioned Lewis, Waller & Co (Lewis, Waller report) to investigate the plaintiff's case. On 29 September 1969, Lewis, Wallis & Co, a loss assessor, prepared a report (which will be referred to in more detail later in this judgment). Mr Balzer advised the plaintiff's parents that due to the negative nature of the report of Mr Lewis, it would not be possible to win a case against the Council. Mr Balzer sent a copy of the investigator's report to the plaintiff. A copy of this report is still in existence. For the next 32 years, the plaintiff got on with life. While he disagreed with some things written in the loss assessor's report he accepted its advice that he did not have a case and did not seek any further legal advice. In those intervening years the plaintiff admitted that he looked at the report more than once. 5 In 2001, the plaintiff spoke to a friend who recommended that he speak to a solicitor. The plaintiff contacted Joanne Carusi and the plaintiff showed her the report by Lewis, Wallace & Co. Ms Carusi advised the plaintiff that she did not have the resources to assist the plaintiff and referred him to Stone & Partners. 6 On 18 July 2001, the plaintiff instructed Mr Robert Parrey formerly of Stone and Partners to act in respect of his accident. It is not necessary to refer to the steps his solicitor took other than to say that he acted expeditiously in seeking Council documents, Counsel's advice, medical, hospital records and locating witnesses and evidentiary material. 7 On 27 February 2002, the plaintiff's solicitor received the Lewis, Waller report, and forwarded a further brief to Mr Elliott for opinion as to the prospects of success of the plaintiff's application to extend time. On 15 April 2002, advice was received from Mr Elliott. On 24 April 2002, the investigators were instructed to obtain further statements from relevant witnesses including Ballina Shire Council. On 13 May 2002, enquiries were made of Climate and Consultive Services in respect of water levels in Lake Ainsworth at the time of the accident. 8 On 4 June 2002, the plaintiff's solicitor wrote to Ballina Shire Council notifying them of the plaintiff's claim and enclosing a copy of the notice of motion and affidavit. On 1 November 2002, Michael Morison a law clerk at the plaintiff's solicitors inspected the minutes of monthly meetings of the Council of the Shire of Tintenbar and obtained photocopies of relevant records. On 12 December 2002, the notice of motion seeking to extend time was filed. On 12 December 2002, the statement of claim was filed.

The Law 9 The plaintiff relies on s 60G and s 60I (1)(a)(i)-(iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

Subdivision (3) 10 The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but "also (by the operation of Schedule 5) for causes of action that accrued before that date" (s 60F). 11 Schedule 5 provides by clause 4(1) that: "Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…"; 12 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action: "…if an application for such order is made within: (a) the period of three years referred to in s 60I; or (b) the period of three years commencing 1 September 1990." 13 The application to extend time was made on 12 December 2002 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be "within the period of three years referred to in s 60I". 14 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such a period as it determines". 15 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 16 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 13 December 1973 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I (1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I (1)(a) (or the last of those matters to become known to him) earlier than 12 December 1999. 17 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 13 December 1973 which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I (1)(a); and to show by (evidence) the date on which he acquired knowledge thereof (being a date later than 12 December 1999); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b). 18 Counsel indicated that the plaintiff relied on s 60I(1)(a)(ii) and (iii).

(ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered" 19 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I (1)(a) - (Harris v Commercial Minerals Limited (1996) 186 CLR 1 the Court at 9 and 10). However, s 60I (1)(b) imposes an objective test - "became aware (or ought to have become aware)" of all three matters listed in paragraphs (a)(i)-(iii). The defendant did not submit that the plaintiff "ought to have known" the nature and extent of his injuries. 20 The nature and extent of the injury which the plaintiff has sustained is to be determined as at the date of the hearing of the application (Harris at 13 and 14). A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury. 21 The plaintiff gave evidence that within 12 months after the accident he knew he was a quadriplegic and would never walk again. That is, he knew that the injury was permanent. He knew that "things would get harder" for him as he got older. His father and mother assisted him with his day to day needs. His father died some time ago and his mother has until recently continued to provide personal care and assistance. His mother is now 90 years old and is in a nursing home. She is unable to care for herself. 22 The plaintiff has coped admirably with his disability. He drives a modified care and operates the Empire Vale Post Office Agency. Recently, the plaintiff was forced to obtain a motorised wheelchair as he is having trouble with his shoulders particularly his right shoulder. His appliances and aids particularly his lift for his modified car need replacement or repair. He is currently finding that coping with the day to day living is becoming increasingly difficult. His bathroom needs modification (t 4). 23 While I have sympathy for the plaintiff's plight, the consequences of the injury that the plaintiff is now experiencing are those, which he has always expected, would occur over time. It is my view that the plaintiff was aware of the nature and extent of his injury well before 4 December 1999. Thus the plaintiff's claim under s 60I(a)(ii) fails.

(iii) Whether the plaintiff was unaware of the connection between personal injury and the defendant's act or omission 24 The plaintiff submitted that he was unaware of the connection between the personal injury and the defendant's acts or omissions until 18 July 2001 when he consulted his solicitor. The plaintiff gave conflicting evidence as to whether in 1969 he was aware that the council was responsible for the repair and maintenance of the diving tower. The Lewis Wallis report specifically states that Lake Ainsworth, a fresh water non-tidal lake with a diving tower and springboard for use by the general public, is controlled by the Tintenbar Shire Council. The plaintiff admitted that he had read this report more than once over the years and he had read it carefully (t 12.15-35). However, when cross-examined, the plaintiff conceded that he presumed that at least from 1969 the Council had the care and control of the springboard that caused him not to take legal action in 1969. The reason he did not take action was because people said that the accident was his fault (t 7.20). It is my view that in 1969 the plaintiff was aware that the lake and diving tower were controlled by the Council. 25 However, s 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff's particulars of negligence - Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 26 The plaintiff claims that the defendant was negligent by firstly, causing and/or permitting the erection, installation and maintenance of the diving tower at a point in Lake Ainsworth where the water level was too shallow to permit safe diving; secondly, failing to devise, implement and/or maintain a system for the inspection of water levels in Lake Ainsworth so as to ensure that the diving tower was located at a point where the water level was sufficiently deep to enable safe diving; thirdly, failing to correctly orient the diving tower so that persons using it would dive away from the shallows and into sufficiently deep water; fourthly, failing to warn the plaintiff of the hazard posed by the shallow water to divers using the tower; fifthly, failing to relocate and/or remove the tower following earlier injuries suffered by Rae Lancaster in 1949; sixthly, failing to inspect the tower and surrounding water depth; seventhly, failing to display any depth markers in the water; and eighthly, locating the tower to a position where it was impossible to determine the depth of water by usual inspection of the water colour (SC 12 December 2002). 27 The plaintiff gave evidence that in 1973 and 1976 he was not aware that the Council had caused the tower to be erected in about 1955, nor that in 1955 the Council had commissioned the engineer to investigate the tower in relation to its siting and the water depth around the site where it was constructed (t 3). He was not aware that in 1956 that the engineer was commissioned to do some filling work around the lake (t 3 & 4). 28 When cross-examined, the plaintiff stated that he did not know that there had been a complaint about safety in 1964 until recently. He still does not know what the nature of the complaint was and what was done about it (t 13). Likewise with the filling work in the lake, the plaintiff still does not know anything about it. Nor does he know anything about the history of the tower or what the Council did to it nor does he now know what maintenance was carried out on the tower in the years preceding the accident. 29 It is my view that the plaintiff did not and still does not know the significance, if any, of the above acts or omissions. The plaintiff does not pass through the s 60I(1)(a)(iii) gateway. 30 If I am wrong and the plaintiff has passed through the s 60I (1)(a)(i), (ii) or (iii) gateway, I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 31 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and Commonwealth of Australia v McLean (1997) 14 NSWLR at 389. The defendant for the purpose of this case, does not submit that the plaintiff does not have a real case to advance. 32 The ultimate test as to whether it is just and reasonable to extend the limitation period in any such application is whether a fair trial can be conducted not withstanding any delay (Wynter). The effect of the delay is the most important issue for consideration in this case. At this stage, it is necessary to re-examine the particulars of negligence (reproduced earlier in this judgment) so that the issues that will fall for determination at trial can be identified. The defendant submitted it will not be able to obtain a fair trial because it is actually prejudiced. The plaintiff submitted that a fair trial will be afforded to both parties. Indisputably with the passing of 34 years there is presumptive prejudice. 33 I will leave to one side, the plaintiff's case on damages as some of the hospital records at the time of the accident are still in existence. For the defendant to prepare a case on damages, even at this late stage, is not so problematic. 34 Contemporaneous written reports are of the utmost importance. Mr Lockton, the police officer who attended the accident, has been interviewed. He recalls the accident involving the plaintiff. He recalls making entries in his office police diary and upon the occurrence register but these records were destroyed in about 1995. Had these records been available they would have provided an independent contemporaneous record of the accident. The circumstances surrounding the accident and the accident itself. 35 The first written report of the accident that is still available is contained in the Royal Prince Alfred hospital notes. It is recorded that at 4.30 pm the plaintiff dived from a 20 foot high board into an estimated 7 feet of water at Lake Ainsworth. It noted that in retrospect the plaintiff felt that there was less water than usual at this dive and he struck his head on the bottom of the lake. The next record of the plaintiff's accident is contained in the 1969 Lewis Wallis report which is some years after the accident. I shall refer to its contents in more detail later in this judgment. 36 The plaintiff is unaware if his parents or Mr Balzer notified Ballina Shire Council (previously Tintenbar Shire) of the plaintiff's injuries, or whether the Council was put on notice of a potential claim against them, but the Council would have been aware of the plaintiff's accident as it was a front page article in the local newspaper the day following his accident. A copy of this newspaper article that appeared in the Northern Star on 26 December 1964 is available, but it does not reveal the circumstances of the accident only that the plaintiff suffered a probable fracture of the spine after diving of a tower and it is believed that he struck his head on the bottom of the lake. 37 The defendant's solicitor has arranged for the issue and service of subpoenas for production of documents relating to the plaintiff's accident. upon Mr Ray Balzer, the plaintiff's solicitor at the time of the accident. The managing partner of Lee Sames Egan who are the solicitor who now have Mr Balzer's former practice. Mr Balzer's records are not available but Mr Balzer is alive and now lives with his daughter in Plympton, South Australia. A subpoena was issued on N & S Baggaley Pty Limited, the current proprietors of Lewis & Associates and no documents were produced. Mr Lewis has died. The report of Lewis, Wallis & Co dated 29 September 1969 is available. Mr Lewis the investigator is deceased, Mr Balzer's records of his practice have been destroyed including the plaintiff's file.

Council records 38 In order for the defendant to obtain a fair trial, it is necessary to have regard to its own documents which relate to the tower and the plaintiff's accident which it has in its possession. Wendy Jane Lohse is the senior records officer for the defendant and has been employed with the council since 19 November 2001. Ms Lohse is responsible for the supervision of the council's record management functions which includes supervising the records department, archives, electronic document management system and the mail. In about November 2001 the council commenced a culling of its records and this was completed in about May 2002. As far as Ms Lohse is aware, the plaintiff's notification of claim was not received by the council any earlier than 4 June 2002. 39 Ms Lohse also searched the council's chambers for any documents to do with Lake Ainsworth or the dive tower or the plaintiff's accident for the period 1954 to 1966. The Tintenbar Shire Council insurance - Public risk file did not contain any documents relating to the plaintiff's accident nor to the dive tower. Ms Lohse did not locate any records in relation to the plaintiff's accident on 25 December 1964. In July 2002, Ms Lohse located the Tintenbar Shire Council minute book for the period 1954 to 1965. From the correspondence register she ascertained that the documents to do with Lake Ainsworth and the dive tower were kept in file number 10/29. After searching the two archive rooms at Ballina Shire council she eventually located box 10/29 which was unmarked. The relevant documents from that file have been put in evidence. There were some resolutions/council minutes for the period 21 April 1954 to 21 February 1966 which have a reference to the dive tower and are in evidence. 40 Council records on 21 February 1955 state that Council resolved to construct a new diving tower at Lake Ainsworth. On 21 November 1955, Council minutes show that the costs of the tower was likely to be £180-200 and resolved that it be left to the council engineer to "ascertain the depth of water at the proposed site and the safe depth for various diving heights". 41 On 16 January 1956, Council resolved to add a springboard to the tower, when painting was being carried out. On 17 September 1956, Council again resolved to put a wading pool at the lake "in abeyance" to add a spring board to tower and to provide "…necessary filling along foreshores of Lake Ainsworth, provision of a spring board and painting of the diving tower to the proceeded with." On 21 October 1959, Council installed buoys to separate the tower from waterskiers, to require insurance from hire boats operators, licence drivers and that the engineer investigate a take off area for skiers. 42 On 19 March 1962, Council resolved to write to all operators of ski boats to ensure that they did not come too close to swimmers "on pain of permit cancellation". On 15 October 1962 the kiosk leased by Council to Allan Jones and J Gradwell requested two floodlights to light the swimming area out to the tower. 43 On 18 February 1963, Council referred the repair of the tower steps to the engineer. On 18 February 1963, the tower steps were repaired. On 16 December 1964, Councillor Gibson requested the inspection of the tower for safety. 44 There is an interesting notice in the Council records from the local P & C written some four months after the plaintiff's accident (18 April 1965). The Lennox Head Parent's and Citizen's Association wrote regarding the dangerous condition of the tower at Lake Ainsworth. It stated that the tower was terribly dangerous as the children could shake it from side to side, and that as the lake water was so low it was time to strengthen the tower before it fell over. It further stated that as the children from the school congregated on the tower every day during summer, it should be in good repair, and noted that when a dozen or more children were on the tower jumping and diving it put a great strain on the structure. The P & C's opinion was that it was time to strengthen it before the next swimming session started and the lake filled up again. 45 The Council records dated 6 May 1965 indicate that the tower had been constructed in two sections, the lower section and platform were quite stable but there was some lateral movement in the top section of the tower. Action was taken to renew some of the bolts in the framework and additional timber cross braces were to be fixed to the front and back frames to stabilise the structure. On 21 February 1966, Council noted a further accident at the tower, presumably to the plaintiff, and depth indicators were to be placed on the tower.

Council witnesses 46 Mr William Joseph Hogan was the chief health inspector with the Tintenbar Shire Council in 1956 in alive and living in Alstonville. In 1964, George Leslie Young was chief clerk accountant and assistant to the shire clerk, Mr Arrowsmith. Mr Young is alive and living in Ballina. Mr Edward Hulme who was the Tintenbar Shire Council engineer in 1964 has been contacted. He remembers that there was a dive tower in Lake Ainsworth in 1964 but does not remember anything about the accident. He is 86 years old and is very ill and his memory is poor. 47 Mr Peter Thorpe, the engineer who replaced Mr Hulme, has provided two statements dated 26 June 2002 and 31 October 2002. Mr Thorpe was the Shire engineer who was employed by the Council from July 1967 until 1982. He stated that you could touch the bottom of the lake with your feet all around the dive tower, subject to the seasonal depth. The depth of the lake was apparent to those using it, but the colour of the water prevented a visual appreciation of its depth. Mr Thorpe said that as a teenager, he dived off the tower countless times. He always dived to the west (towards the centre of the lake). It was known to those who used the lake that you should dive in a westerly direction. He thought that there were rails on the north and south sides of the top platform. Mr Thorpe reached the view sometime after that he had responsibility for giving advice on the dive tower that it was dangerous. In his statement of 31 October 2002, he said that he reached the view sometime after he had responsibility for giving advice on the tower that it was dangerous. He said that he was aware of the plaintiff's accident "some years before" and believed the possibility of a recurrence was probable if the tower was allowed to remain. Yet in his statement of 26 June 2002, he contradicts that later statement. There he says that he did not know of the plaintiff's accident until recently and was not aware of it when he recommended the tower's demolition in 1967/8.

Photographs 48 The dive tower was removed probably in the 1970's so at trial the parties would be reliant upon oral evidence and photographs. There are some photographs taken on 1 January 1962 by Brian Smith's family showing the tower with reeds. A Council bulldozer subsequently removed the reeds. They do not show any signage on the tower. There is a photograph showing the lake and in particular a diving tower erected at the lake. The tower consisted of a diving platform and a springboard. The photograph depicts the tower as the plaintiff recalls it looked on the day of his accident. There are some other photographs but they too are not very clear.

Signage and depth indicators 49 It seems common ground between the witnesses that the water was tea coloured so it was difficult to see the depth of the water in the lake. As far as the plaintiff can recall there was a sign erected saying "Dive off board" or something similar, but there were no signs warning that the lake's water level may rise or fall, nor any means of determining what the water level was at any particular time, nor any signs warning of any hazard. There was no sign giving any direction as to the safe manner in which to dive or warning of any hazard or inherent dangers when diving from the tower. The plaintiff did not think there were any signs indicating the depth of the water around the tower. He adhered to this view in cross-examination (t 10.30). However, during cross-examination the plaintiff admitted that he was quite unclear as to what words were written on the sign (t 10.5). 50 However, even within the Lewis Wallis report dated 29 September 1969 there conflicting information as to whether there was a warning sign erected near the diving tower. It records the plaintiff as stating that he thought that there was a notice attached to the structure warning to dive off the board and not off the tower but he could not be sure. Mr Alan Jones the storekeeper at Lennox Head said that he was very familiar with the condition that existed at the lake. He stated that at no time were any notices exhibited on the tower or in the vicinity warning persons how to dive from the tower. Miss Fidelia Gibbon, who had frequently dived off the tower and was interviewed about Mr Carr's accident, said that she had never seen warning notices or any notices attached to the tower during the time when it was in use. 51 The plaintiff's investigator has recently located and spoken to Miss Gibbon. In her statement of 20 December 2001, She now says that there was a sign at the base of the tower which read "DIVE AT YOUR OWN RISK", although she cannot say if that sign was affixed to the tower in 1964. She now also says that she does not recall the plaintiff's accident. Mr Thorpe recently stated that he did not recall a depth indicator. As he had grown up in the area, he knew that the depth of the lake fluctuated. He did not recall any signs on or close to the dive tower, but did not discount the possibility of these at any given time. 52 On the day of his accident, the plaintiff commenced diving with his two cousins, Dale Kathryn Wells (nee Williams) and Ronald Charles James. Ronald Jones resides in the Philippines. Both live in New South Wales and are available to give evidence and have provided statements. Although Dale was in the water with the plaintiff at the time of the accident, neither cousin saw the plaintiff perform the actual dive that caused his injuries. Also available to give evidence are the plaintiff's sister Gail Alison Graham. Three of his uncles and his mother were also present when the accident occurred. Two of them are still alive and available to give evidence. One uncle lives in the Philippines. 53 The bureau of meteorology has provided extracts of monthly, annual and median rainfall for Ballina, Byron Bay and Clunes for the relevant period. It is important to appreciate that the lake is a tidal one. The metrological charts would be of some use, but the critical issue would be what the water level was in the lake during the Christmas afternoon in 1964. While expert evidence may be of some assistance, it would be the evidence given by those who were swimming and diving at the relevant time which would be most relevant. 54 Overall, there are discrepancies in the evidence in relation to the issues of the structure and height of the tower, the water level on the day, whether there were any notices or depth indicators present and if there were such notices their location. It would be left to witnesses to recall these events and critical issues 34 years after they occurred. Most of these witnesses have only been asked to recall the events for the first time 32 years or so after the accident occurred. It is my view that, due to the effluxion of time, their recollections are most likely to be unreliable. The quote from Barker v Wingo (1972) 407 US 514 at 532 "What has been forgotten can rarely be shown" (cited with approval by McHugh J in Taylor at 871A) is particularly apt. Aside from the unreliability of the evidence of witnesses, the Council records are incomplete and important evidence, which existed at the time, may have been destroyed. Some critical documents, namely the Police records have now been destroyed. 55 It is my view that a fair trial cannot now take place. The plaintiff has not passed through the s 60I(1) gateway nor is it just and reasonable to extend the limitation period. The plaintiff's claim fails. The plaintiff's notice of motion filed 12 December 2002 is dismissed.

56 Costs are discretionary. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. The plaintiff should pay the defendant's costs. 57 The court orders that:

(1) The plaintiff's notice of motion filed 12 December 2002 is dismissed.

(2) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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