Arntzen v The State of Western Australia - [2000] WADC 279

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ARNTZEN -v- THE STATE OF WESTERN AUSTRALIA [2000] WADC 279

CORAM: FENBURY DCJ

HEARD: 15 SEPTEMBER 2000

DELIVERED : 6 NOVEMBER 2000

FILE NO/S: CIV 110 of 2000

MATTER :In the matter of an application for leave pursuant to s 6(3) Crown Suits Act 1947

BETWEEN: PHILIP NIKOLAI ARNTZEN
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Application pursuant to s 6 of the Crown Suits Act 1947 for leave to commence an action out of time - Police officer injured in course of duty - Defective motorcycle helmet - Leave granted - Turns on own facts

Legislation:

Crown Suits Act 1947, s 6

Occupational Safety and Health Act 1984

Result:

Leave to commence proceedings granted

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Ms C J Thatcher

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Griffiths v Haines [1984] 3 NSWLR 653

Case(s) also cited:

Nil

FENBURY DCJ: By an originating summons filed in this Court on 5 July 2000 the applicant seeks leave to commence an action for damages for negligence and/or breach of contract and/or breach of statutory duty in terms of a Minute of Proposed Amended Statement of Claim of the same date.
The application is brought pursuant to the provisions of s 6(3)(a) of the Crown Suits Act 1947 (WA) which provides that no action of the kind proposed lies against the Crown unless notice is given within three months after the cause of action accrues and the action is commenced within one year.
The conduct the subject of the relief sought is alleged to have occurred on or about 26 February 1995. Proceedings should have been commenced by 26 February 1996 and consequently it can be seen that the plaintiff is well out of time. Apparently the plaintiff failed to comply with either of the requirements of s 6(1) of the Act. Consequently the plaintiff requires the leave he now seeks. By s 6(3)(b):
"Where the Court considers that the failure to give the notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose."
As the argument was put it appeared to be conceded, given the absence of any evidence put forward by it, that the defendant was not alleging any material prejudice. Neither were any submissions made by counsel for the defendant on the issue of whether delay could be explained or was occasioned by mistake or any other reasonable cause. No such issue being raised then I think it is implicit that findings would have been made in favour of the plaintiff if required.
The issue as seen by the defendant was whether or not it would be just to grant leave in all the circumstances. In essence the defendant asserts that it would not be just because the plaintiff's claim is doomed in two potential areas.
The first relates to what counsel describes as a matter of causation and it arises in this way. The plaintiff asserts that on the day in question, in the course of his duties, he being a police officer, he was riding a police motor bike and wearing the issued helmet with chin strap securely fastened. He sought to apprehend two motor cycle riders for some legitimate purpose not specified. He dismounted from his bike and after approaching the riders he was assaulted by them in the course of which his helmet was pulled off his head from the front in spite of the chin strap being fastened. He was then further assaulted with the helmet, amongst other things, and sustained substantial injury.
In the circumstances the plaintiff seeks to submit that the helmet was defective. It should have been constructed in such a way that it could not be removed whilst it was still secured by strap. The plaintiff formulates a claim upon the basis that the helmet was a defective piece of equipment given to him by his employer who should have known of its defects and as a consequence the plaintiff sustained injury.
The defendant submits that the helmet was a motor cycle rider's helmet not designed for use in situations of personal violence. It was not a helmet designed to protect the police officer in the case of a violent physical confrontation. It was designed to protect him from head injury in the event of a motor vehicle accident. Thus, according to the defendant, there is no causative connection between the defective helmet and the injury.
Upon this issue the plaintiff asserts that the cause of action is neither far fetched nor fanciful and that:
"It was foreseeable to the defendant that should the helmet come off the plaintiff's head, it would not provide protection at the time it was required. The law does not require a defendant to foresee the precise chain of misfortune for an injury to be reasonably foreseeable ‑ as long as the injury sustained is in the same class of foreseeable injuries that could occur (head injury could occur if the helmet did not provide protection) that would satisfy the test of reasonable foreseeability. All the plaintiff would need to show for the purposes of this interlocutory application was that the plaintiff knew or ought to have known that the helmet could come off or be removed from the plaintiff's head while the chin strap was fastened."
It appears from the materials that the helmet is defective as a motor cycle helmet because of the fact that it can be removed with the strap done up when pulled over the front.
The matter is not without difficulty but it seems to me to be possible for the plaintiff to prove that by supplying him with a defective helmet the defendant was in breach of its duty towards the plaintiff. In isolation I think the plaintiff should be given the opportunity to pursue that argument.
The second basis upon which the defendant asserts that the plaintiff's case is doomed relies upon the nature of the relationship between the plaintiff and the defendant. The defendant submits that the plaintiff, being a police officer, is not an employee of the defendant to whom a duty of care is owed to provide him with a safe system of work. The defendant says that the plaintiff was acting "in accordance with his sworn duty pursuant to sections 10 and 11 of the Police Act" and that consequently he was acting in the exercise of his duty, exercising the original authority vested in him. In the result there is no master/servant relationship.
The defendant relies upon Griffiths v Haines [1984] 3 NSWLR 653 per Lee J at 656, 657 and 661‑662. In that case the plaintiff received injuries when a bomb exploded outside the Sydney Hilton Hotel. The plaintiff alleged that the injuries he received were caused by the negligence of the defendant or its servants or agents, the servants or agents being police officers of a rank senior to the plaintiff who were in charge of operations.
In the action the plaintiff claimed that he was employed by the Government, that the Government was under a duty to take care for his safety, and that the Government was in breach of the duty, those duties amongst other things being to provide a safe system of work, to provide safe equipment which in the context would have included appropriate safety clothing.
Lee J's view was that if the plaintiff was acting as a constable at the time of his injury then there was no relationship of master and servant between him and the government which would impose upon the government a duty to take care for his safety. (p662). The question is determined by the nature of the activity in which the police officer is engaged at the time of the injury. It is quite clear that in this case the plaintiff was seeking to apprehend two delinquent motor cyclists and he was quite clearly acting as a constable pursuant to the statutory powers given to him under the Police Act. Griffiths v Haines (supra) is authority for the proposition that there is no master/servant relationship at that time.
The question would seem to me to be whether in spite of that, given the claim would be based upon an allegation of defective equipment, would the constable still be able to bring an action.
It seems to me to be very doubtful that the plaintiff would succeed in respect of this aspect of the claim.
The plaintiff also seeks to maintain a cause of action based upon breach of the provisions of the Occupational Safety and Health Act 1984. The defendant says that it is not an employer within the meaning of the definition contained in s 3(1) because a police officer is not "employed under a contract of employment".
Again I would be surprised if this was the case in the year 2000 and although no specific authority appears to have been referred to I think the plaintiff should be permitted to put his case.
It follows that I do not think the plaintiff's claim is speculative or absurd, although it has some novelty, but I propose to grant the plaintiff leave to commence proceedings.
In respect of costs I agree with the submission of counsel for the defendant that the plaintiff should pay the defendant's costs of the application in any event. The primary reason for that order is that the proceedings were necessitated by the plaintiff's failure to comply with the provisions of the Act.