HARRIS V. THE COMMONWEALTH OF AUSTRALIA

ORIGINAL .

fd

THE. COMMONW:

REASONS FOR JUDGMENT. i |

Delivered at__.S¥DN

on FRIDAY 2.30%

40358 A. H. Perriren, AoriNe Govr. Prnvr.

HARRIS

JUDGMENT . PIERNAN JF.

The case arises out of a claim made by the plaintiff under the National Security (Claims against the Commonwealth in relation to Vistbing Forces) Regulations. It is in form an action against the Commonwealth, because of the provisions of reg. 4(1). This subregulation defines the rights of a claimant: reg. 4(3) defines the rights md liabilities of the Commonwealth. It is a necessary condition of the right under reg. 4 that the plaintiff has, or deems himself to have, a just claim or demand against a member of a visiting force or any person acting for or on behalf of a visiting force.

The statement of claim alleges negligence on the part only of a driver of an army truck, although, the claim before action alleges megligence on the part of the driver and of such members of the United States Forces who exercised care and control of that vehicle. At the outset of the trial Counsel for the plaintiff said he relied upon a claim against the driver in respect of the driver's negligence for the purposes of reg. 4. The case was conducted on that basis. Counsel for the Commonwealth admitted that the driver was a member of the United States Forces.

At the conelusion of the plaintiff's case Mr. Shand (Counsel for the Commonwealth) submitted that the plaintiff failed to establish such a case as to call for an answer. Argument on this submission was reserved as a matter of convenience until the medical witnesss for the Commonwealth had given their

evidence.

The /

2.

The facts proved are that the plaintiff was waiting at the aerodrome at Townsville at 3am. on 25th April 1944 to be driven to an aeroplane by which he was to be flown to Milne Bay in order to carry out a contract into which he had entered with the United States Army to work at that port aS a painter and docker. He was directed by some person speaking through an amplifier to get into a truck. When he got into the truck it was already occupied by other persons directed to get into it before him. There was no room for him except at one side and he had no support except from the side board,which was loose. He rode in that place "in a more or less crouched position". If the truck had a tail board it was down. There is no evidence that the member of the Forces who drove the truck had any duty other than to drive it. There is no evidence that he took any part in directing the plaintiff or any of the persons waiting at the aerodrome to board the truck.