JOHN BARRY MAXWELL THOMAS v THE COMMONWEALTH OF AUSTRALIA [1993] NSWCA 267

JOHN BARRY MAXWELL THOMAS v THE COMMONWEALTH OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 15 February 1993

[1993] NSWCA 267

Clarke JA. This is an application by the first respondent to strike out an appeal against it on the ground of the failure of the appellant to prosecute the appeal with diligence.

The proceedings which led to judgment from which the appeal is brought arose out of an accident on 11 March 1976 when the appellant was injured whilst driving a five ton truck in the course of a mail run in his employment as a truck driver with the first respondent. He received those injuries when the vehicle hit a trench running across O'Riordan Street, Mascot.

The appellant sued four defendants, including the first respondent and the Botany Municipal Council, the second respondent. The appeal only concerns those two respondents. At the trial, Miles J (as he then was) directed a verdict for the second respondent and the appellant has appealed against the judgment entered as a consequence of that direction.

His Honour found that there was a case against the first respondent for submission to the jury and, in due course, the jury considered that case and found for the first respondent. The appeal also concerns the jury decision, although most of the grounds of appeal relate to the directions which the trial judge gave in the summing-up to the jury. There is, however, anallegation that the verdict was against the evidence and the weight of the evidence.

The case against the first respondent was that it had failed to install a seatbelt in the truck for use by the appellant. It was contended that if a seatbelt had been available then the appellant could have avoided his injuries or at least suffered less severe injuries.

The case against the second respondent was that it had been negligent in failing properly to repair an excavation across the road. It may be that my description of this case is not entirely accurate because it is too concise; however, it is only necessary to refer to the nature of the case in this application.