Bromley v City of Stirling
[2007] WADC 6
•6 FEBRUARY 2007
BROMLEY -v- CITY OF STIRLING & ANOR [2007] WADC 6
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 6 | |
| Case No: | CIVO:4/2007 | 29 JANUARY 2007 | |
| Coram: | GROVES DCJ | 5/02/07 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to commence proceedings granted | ||
| PDF Version |
| Parties: | DAVID GRANT BROMLEY CITY OF STIRLING COMMISSIONER OF MAIN ROADS |
Catchwords: | Negligence Damages Application for leave to bring action under s 47A Limitation Act 1935 Delay not occasioned by mistake or other reasonable cause Exercise of discretion |
Legislation: | Limitation Act 1935 (WA), s 47A |
Case References: | The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983 Victorian Railways Commissioners v Casaccio [1961] VR 157 Neale v Minister for Education (1994) 11 SR (WA) 307 Roberts v City of Gosnells, unreported; DCt of WA; Library No 2817; 18 July 1990 Brown v Minister for Education [2003] WADC 182 Lavita v Shire of Gingin [2005] WADC 93 Stevens v Motor Vehicle Insurance Trust (1978) WAR 3232 Matheson v Commissioner of Main Roads [2001] WASCA 402 Black v City of South Melbourne [1963] VR 34 Palamore Pty Ltd v Shire of Broome, unreported; FCt SCt of WA, Library No 980392; 20 February 1998 Baker v Shire of Albany, unreported; DCt of WA; Library No 3751; 7 June 1993 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MATTER : IN THE MATTER of s 47A of the Limitation Act 1935 (as amended)
and
IN THE MATTER of an application by DAVID GRANT BROMLEY for leave to bring an action against the City of Stirling and Commissioner of Main Roads
- Plaintiff
AND
CITY OF STIRLING
First Defendant
COMMISSIONER OF MAIN ROADS
Second Defendant
(Page 2)
Catchwords:
Negligence - Damages - Application for leave to bring action under s 47A Limitation Act 1935 - Delay not occasioned by mistake or other reasonable cause - Exercise of discretion
Legislation:
Limitation Act 1935 (WA), s 47A
Result:
Leave to commence proceedings granted
Representation:
Counsel:
Plaintiff : Mr K Wong
First Defendant : Mr J Eller
Second Defendant : Mr H D Leith
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : John Eller
Second Defendant : State Solicitors Office
Case(s) referred to in judgment(s):
The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983
Victorian Railways Commissioners v Casaccio [1961] VR 157
Case(s) also cited:
Neale v Minister for Education (1994) 11 SR (WA) 307
Roberts v City of Gosnells, unreported; DCt of WA; Library No 2817; 18 July 1990
Brown v Minister for Education [2003] WADC 182
Lavita v Shire of Gingin [2005] WADC 93
(Page 3)
Stevens v Motor Vehicle Insurance Trust (1978) WAR 3232
Matheson v Commissioner of Main Roads [2001] WASCA 402
Black v City of South Melbourne [1963] VR 34
Palamore Pty Ltd v Shire of Broome, unreported; FCt SCt of WA, Library No 980392; 20 February 1998
Baker v Shire of Albany, unreported; DCt of WA; Library No 3751; 7 June 1993
(Page 4)
1 GROVES DCJ: This is an application by the plaintiff by way of originating summons for leave pursuant to s 47A(3) of the Limitation Act 1935 ("the Act") to bring an action against the defendants arising from personal injuries and disabilities suffered by him in an accident on 18 July 2003.
2 The first defendant opposes the application. The second defendant does not oppose the application and made no submissions on it.
Background and history of proceedings
3 At about 8.00 pm on 18 July 2003 the plaintiff was riding a motor cycle on Hamer Avenue in Wembley Downs travelling in an easterly direction. He observed a set of headlights in the distance coming towards him. When he was about to pass that vehicle travelling in the opposite direction, it turned in front of him. He tried to stop but could not do anything to avoid contact and collided with the left hand side of the vehicle near the rear wheel. He was conveyed to hospital and treated for broken tibia and fibula.
4 The accident occurred at a point on Hamer Road where it is joined by Calais Road. It is a "Y" intersection. The plaintiff was proceeding from the top left arm to the very bottom of the "Y". The other vehicle was proceeding from the bottom and into the right arm of the "Y". Facing the plaintiff as he approached the intersection was a Give Way sign.
5 The plaintiff consulted solicitors who by letter dated 29 July 2003 notified the Insurance Commission of Western Australia ("ICWA") of a claim arising out of the motor vehicle accident. By letter dated 15 August 2003 ICWA advised that it was their opinion that the driver of the other vehicle "was not negligent as a result of the crash." Liability was denied.
6 The plaintiff's solicitors then undertook investigations as to the cause of the accident. Through a Freedom of Information application made to the first defendant the plaintiff obtained certain information pertaining to the City's awareness that the "Y" intersection constituted what was described as a "minor technical problem site". The plaintiff having petitioned a number of residents near the intersection ascertained that there had been a minimum of three prior serious accidents at the intersection in the previous five years.
7 Acting on the information received the plaintiff's solicitor on 15 July 2004 wrote to the State Solicitor's office with copies to the first and second defendant informing that the plaintiff:
(Page 5)
- "…feels that the City of Stirling and Main Roads Western Australia are responsible for the accident in that they were negligent for failing to erect adequate traffic and warning signs in the area surrounding the 'y' intersection of Hamer Avenue and Calais Road and/or in breach of their statutory duties."
8 On the same day 15 July 2004 the plaintiff issued a writ out of the District Court of Western Australia No 1560 of 2004 against the first and second defendants with a general indorsement claiming damages.
9 By letter dated 19 July 2004 the City of Stirling in effect denied any liability and similarly by letter dated 30 July 2004 Main Roads denied liability.
10 The writ of summons remains unserved. By a separate application in those proceedings the plaintiff seeks an order that the validity of the writ of summons be extended. The first defendant does not oppose that application, however the second defendant does.
11 When both applications came on before me it was proposed that only the application for leave to commence proceedings No 4 of 2007 should be heard and determined. Thus the application to extend the validity of the writ of summons in action No 1560 of 2004 stands adjourned sine die pending the outcome of this application.
The relevant legislation
12 The Limitation Act 1935 was repealed by the Limitation Act 2005 which came into operation on 15 November 2005. However, the Limitation Legislation Amendment and Repeal Act 2005, s 4(2) provides:
"The Limitation Act 1935 continues to apply, despite its repeal and the enactment of the Limitation Act 2005, to causes of action that accrued before commencement day."
13 As the plaintiff's cause of action accrued well prior to the commencement day of the new legislation this application falls to be considered under the provisions of s 47A of the Limitation Act 1935.
14 Section 47A of the Limitation Act 1935 provides:
"(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsections (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or
- intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
- (a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,
...
- (2) ...
(3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.
(b) Where the Court considers that the failure to give the required 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 prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
(c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on
- which it is to be made to the prospective defendant, at least 14 days before the application is made."
The required notice and delay
15 The first issue is as to whether or not the plaintiff "…as soon as practicable after the cause of action accrues, …" gave to the prospective defendants notice in writing. It is perfectly understandable that in the first instance notice of the claim was given to ICWA. Its denial of liability led to other enquiries being made. The plaintiff's application is supported by his affidavit sworn 20 September 2006. However the affidavit lacks any detail whatsoever as to when the further investigations through a freedom of information application was made and when any relevant responses were received. As much as is known is that on 15 July 2004 notification was given to the prospective defendants. Whether or not that was as soon as practicable I am not able to determine. There is an unexplained gap of some 11 months. Whilst I might assume that it took some time to get the information pursuant to the freedom of information request and to consider it, the complete lack of explanation is not helpful to the plaintiff's application. The one year limitation period expired only a matter of a couple of days after notification was given. The action commenced by writ No 1560 of 2004 was however commenced before the expiration of the limitation period.
Mistake or other reasonable cause
16 There is no assertion that the failure to give the required notice or the delay in bringing action was occasioned by mistake.
17 Was there "…any other reasonable cause…"? As much as the plaintiff deposes to is:
"22. Having regard to the [second] Defendant's attitude towards 'vigorously defending' the claim, and my solicitor's demand for funds to be placed in trust to carry the action further, and my financial situation at the time, I instructed him not to pursue matters on my behalf.
23. I continued to live with my disability with my leg and suffer from pain and inconvenience.
24. In July 2006 during an aggravation of pain due to the cold weather I decided that I needed to pursue the matter further.
(Page 8)
- 25. I contacted [my current solicitors] and on 26 July 2006 met with solicitor Kevin Wong who agreed to assist me in pursuing my rightful compensation to damages for injuries and loss sustained."
18 That information is totally lacking in particularity as to what in fact the plaintiff's circumstances were. For example, what was the extent of the solicitor's demand for funds? What was the plaintiff's "financial situation" at the time? It might be inferred that he did not have the financial means to meet the solicitor's demand but why not state what his circumstances were. If the plaintiff were impecunious he may have applied for legal aid. On the other hand the plaintiff may have had the funds but did not wish at that time to pass funds to his solicitor. He may have been "asset rich and cash poor" and preferred to retain the assets. What assets and liabilities did the plaintiff have? The shortcomings of the affidavit are apparent. None of what might be described as the usual relevant information to support such an assertion is condescended to. In those circumstances I have no basis whatsoever for concluding that the failure to give the required notice or the delay in bringing the action was occasioned by any "reasonable cause".
Prejudice to the first defendant
19 Is the first defendant materially prejudiced in its defence by the failure or delay? The solicitor's letter to the first defendant of 15 July 2004 set forth particulars of the cause of action and the nature of the claim and thereby alerted it to the fact of the claim. The first defendant did not tender any evidence by way of affidavit in opposing this application. The first defendant in submissions claims to be materially prejudiced by reason of its inability to carry out any investigation of the accident site and the inability to obtain expert evidence. Unsupported statements to that effect are not helpful. Why can it not now do those things? It is nowhere suggested that the "Y" intersection is any different now to what it was at the time of the accident. The information obtained by the plaintiff's solicitor under freedom of information clearly indicates the first defendant's awareness of concerns about the intersection. There are plans of the intersection. There was a recommendation that the intersection should be realigned. The first defendant has an evidentiary burden to show some basis in fact for the existence of prejudice. In the absence of some evidence from the first defendant as to the particular way in which it has been prejudiced, I consider that the first defendant has not been materially prejudiced by the plaintiff's failure either to give notice as soon as practicable or to commence the action within the appropriate time.
(Page 9)
Discretion
20 It remains to consider whether in the circumstances it is just to grant leave to bring the action? It not being apparent that the first defendant is at all materially prejudiced I am satisfied in the circumstances that it would be just to grant the plaintiff leave to bring the action. Notice was given to the first defendant (whether or not it was as soon as practicable I have commented on before) and the plaintiff did issue a writ of summons in action No 1560 of 2004 within the one year limitation period. It is the first defendant's view as expressed in submissions that the second defendant is entirely responsible for all regulatory signage. It is apparent however that the indicated proceedings go to issues beyond signage.
21 Leave will be refused if the Court is of positive opinion that an applicant has no case or that the Court is of opinion that it is a "try on", but subject to that, it may be quite enough if it appears that the claim is not mala fides or merely speculative or absurd: See The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983 per Burt CJ; Victorian Railways Commissioners v Casaccio [1961] VR 157 at 160.
22 The first defendant's counsel does not suggest the proposed action is mala fides but it is asserted that, having regard to the circumstances and the content of it, it is "speculative in the extreme". I do not accept that proposition. As earlier indicated, the first defendant was aware well before this accident that this intersection constituted a "minor technical problem site". A petition had been received from local residents proposing options for changes to the intersection. In a report of 5 January 2001 its Acting Executive Manager Works recommended "…that the intersection should be realigned to provide the normal 90 degree approach angle to resolve … difficulties" for motorists. Also, there had been a number of prior accidents at this intersection.
23 On the information before me it cannot be said that the plaintiff's prospective claim is speculative or frivolous or has little or no prospect of success.
24 Furthermore, it is a relevant factor also that the second defendant does not oppose the application.
25 Finally, it is relevant also that the first defendant would not oppose the extension of the validity of the writ of summons in action No 1560 of 2004. It is the same cause of action. If it is prepared to allow those proceedings to stand then why should the plaintiff be denied the
(Page 10)
- opportunity to issue a fresh writ on being granted leave pursuant to this application. The same end result is arrived at as against the first defendant.
26 I am satisfied that it would be just in the circumstances to grant leave to the plaintiff to bring the proposed action.
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