Hypothetical Question 2

[NOTE: This is a past exam question]

John is a 21 year old unemployed man, who is suing a local council for a personal injury after a motorcycle accident last year. The circumstances are that the local council had created a dirt track to access bushland that ran parallel to a series of houses in that suburb. The dirt track provided an excellent place for motorcyclists to ride their bikes. John was one of them. One of the residents adjacent to the track placed a chain across the track at head height. The chain had originally been placed by the council at a different location. John drove into the chain at high speed and suffered a catastrophic neck fracture as a result. The person responsible for placing the chain across the track could not be identified. He subsequently sued the local council for negligence.

John was called to give evidence in the proceedings. During evidence-in-chief, he became quite distressed because he could not remember important details about the accident, including whether he had seen the chain, or whether he had simply fallen off his bike at an earlier point on the track. During opening address, counsel for the plaintiff had presented the case that John had struck the chain, but once John began to give evidence he said he couldn't remember. All he could remember was falling off his bike. (Typos corrected, and 15 mark deducted by the Council of Students!!!)

QUESTIONS

1. Can John 'revive' his memory by means of the statement he made to his solicitor during the pre-trial phase?

2. Could John be declared an 'unfavourable' witness?

A little while later, during cross-examination, counsel for the insurance company representing the local council, said the following:

C: You suffered a brain injury, didn't you?

J: Yes.

C: And you have suffered memory loss as result?

J: Yes.

C: How can this court have any confidence in what you're telling us?

J: Because I fell off my bike.

C: That affected your memory, didn't it?

J: I dunno.

C: It's a simple question. It did, or it didn't.

J: I think so...I can't remember.

C: Did it affect your memory?

D: Objection.

QUESTION

Why did counsel object to this question? On what grounds?

Cross examination continued.

C: John, earlier today you told this court that you fell off your bike, and that was because of your accident.

J: Yes.

C: You also looked at your statement that you had made to your solicitor, and could not remember where you had fallen off the track. That's right isn't it?

J: Yes

C: Right. Now, on page 3 of your statement you said "It was a nice day." By that are you saying the sun was shining?

J: Yes, I think so.

C: You think so?

J: Yes.

C: And it was dry that day?

J: Yes.

C: Are you sure about that?

J: Yes.

C: John, that's a pack of lies, isn't it? On the 24^th of March, in that suburb, there had, in fact, been over 40mm of rain in that area. It had been raining, hadn't it? I put it to you that it was not a sunny day, and it was, in fact, wet and muddy along that track - wasn't it?

D: Objection.

QUESTION

Why did counsel object to this question? On what grounds?