| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : EVES -v- COMMISSIONER OF MAIN ROADS [2002] WADC 189 CORAM : DEANE DCJ HEARD : 19 AUGUST 2002 DELIVERED : 26 AUGUST 2002 FILE NO/S : CIVO 207 of 2001 BETWEEN : SALLY EVES Plaintiff
AND
COMMISSIONER OF MAIN ROADS
Defendant
Catchwords: Section 47A Limitation Act (WA) 1935 - Failure by plaintiff to notify defendant of proposed action within limitation period - Refusal by defendant to waive limitation period - Whether there was reasonable cause for plaintiff's failure to give notice within requisite period - Whether defendant prejudiced by delay - Turns on own facts
Legislation: Limitation Act 1935 s 47A
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Result:
Leave granted to plaintiff to commence an action against the defendant Representation:
Counsel:
Plaintiff : Mr T P Heard
Defendant : Mr B Bolton
Solicitors:
Plaintiff : Bradford & Co
Defendant : Downings Legal
Case(s) referred to in judgment(s):
Baker v Shire of Albany (1994) 14 WAR 46
Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
Matheson v Commission of Main Roads & Anor [2001] WASCA 402
Pitcher Products Pty Ltd v Country Roads Board (1964) VR 661
Posner v Roberts (1986) WAR 1
Quinlivan v Portland Harbour Trust [1963] VR 25
Case(s) also cited:
Brodie v Singleton Shire Council (2001) 75 ALJR 992
Buckle v Bayswater Road Board (1936) 57 CLR 259
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Gorringe v Transport Commission (Tas) (1950) 80 CLR 357
Pyrenees Shire Council v Day (1998) 192 CLR 330
Stanko v Canning City Council (1992) 7 WAR 542
Stevens v Motor Vehicle Insurance Trust (1978) WAR 232
Wyong Shire Council v Shirt (1980) 146 CLR 40
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1 DEANE DCJ: In this matter the plaintiff seeks leave pursuant to s 47A of the Limitation (WA) Act 1935 to commence an action against the defendant for damages with respect to disabilities allegedly sustained in an accident on 1 August 1999. The defendant is a statutory body pursuant to s 9 of the Main Roads Act 1930 to which s 47A of the Act applies. It is common ground that the plaintiff did not commence an action against the defendant within one year from the date upon which it is alleged the cause of action accrued. Section 47A(1)(a) of the Act requires that a plaintiff give the 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 the name and address of the plaintiff and that of the plaintiff's solicitor or agent if applicable. In this matter it is again common ground that the plaintiff did not give the requisite notice to the defendant until approximately 26 months after the cause of action accrued. By letter dated 9 October 2001 the plaintiff's solicitors gave such notice and further information relevant to the alleged circumstances of the accident as well as an explanation for the delay in notifying the defendant of the plaintiff's proposed claim. In reply by letter dated 16 October 2001 the defendant advised the plaintiff's solicitors that the defendant would not waive the limitation period in relation to the matter.
2 In an affidavit of Murray John Robinson ("Mr Robinson") filed in opposition to the application for leave to commence proceedings pursuant to s 47A of the Act it is said that as a result of the plaintiff's delay in notifying the defendant of her intention to claim compensation the defendant has suffered material prejudice. Further, put in short form, after perusing various documentation relevant to the plaintiff's periods of hospitalisation following the accident it is the defendant's contention that the state of the plaintiff's health in the 12 months following the accident was not so perilous or compromised as to reasonably explain the plaintiff's delay in giving the defendant notice of her intended claim. 3 Before turning to a consideration of the merits of the application and the respective positions of the parties it is helpful to note something of the general background to this matter. As at 1 August 1999 the plaintiff was employed by Kimberley Aged Services as a remote area coordinator. Part of her duties involved travelling to remote Aboriginal communities in areas outside the township of Broome. It was in this capacity on 1 August 1999 that the plaintiff was driving her Toyota Hiace motor vehicle in a southerly direction towards Broome along the Great Northern Highway at about 6.00 pm. There were three other persons in the car at the time.
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4 According to the plaintiff's affidavit of 6 August 2002, at a point approximately 73 km from Broome, her vehicle suddenly hit a cow and veered off the road to the right into scrub. It came to a halt in the bushes on the side of the highway and both the plaintiff and her front seat passenger were crushed and trapped in the vehicle. It took approximately four hours for them to be cut from the vehicle which was severely damaged as a result of the accident. In a draft statement of claim annexed to the plaintiff's affidavit, it is alleged that the cow strayed on to the highway and at the relevant date there were cattle stations on either side of that road. It is alleged that the defendant was aware, or should have been aware, that cows would stray on to the highway in the area where the accident occurred and that the defendant failed to erect and display warning signs on the highway in the area where the collision occurred in order to warn motorists of the hazard created by cows on the highway. It is the case, as I understand it, that the defendant had erected such warning signs but not in the immediate vicinity of the highway where the accident occurred.
5 As a result of the accident, the plaintiff deposes that she sustained very serious injuries including severe damage to her left leg which resulted in an above knee amputation of that leg. She also suffered a fractured right femur, severe right knee muscle damage and a fractured left wrist. There was also associated severe, widespread bruising to the body as well as cuts and abrasions. 6 The plaintiff was taken to Broome Regional Hospital and then transferred by Royal Flying Doctors Service to Royal Perth Hospital on 2 August 1999. There, according to the plaintiff's affidavit, she underwent immediate surgery to amputate her left leg above the knee. She had a femoral nail inserted into her broken femur in the right leg and wires inserted into her broken wrist. On 11 August 1999 the plaintiff was transferred from Royal Perth Hospital to Shenton Park Rehabilitation Hospital for ongoing rehabilitation and physiotherapy. She underwent further surgery on 16 September 1999 consisting of debridement of the left above knee amputation. Approximately one month later on 18 October 1999 the plaintiff underwent yet more surgery consisting of debridement and revision of the left leg stump with muscle reinserted over the stump. Thereafter she was transferred to Shenton Park Rehabilitation Hospital for further rehabilitation. The plaintiff remained there until 2 December 1999 when she was discharged and went to live with her mother in Bunbury with a view to receiving ongoing care and physiotherapy. Unfortunately, as a result of attempting to weight bear on her right leg, the femoral nail inserted in that leg bent causing the plaintiff
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to have to be readmitted to Royal Perth Hospital between 13 and 22 February 2000 for further surgery to remove and replace the bent nail. After this the plaintiff underwent six weeks of non-weight bearing which in turn disrupted her physiotherapy regime and recovery. The plaintiff had further surgery in early May 2000 to remove a screw which had been inserted into her right hip. Later that same month the plaintiff returned to her usual place of residence in Exmouth where her rehabilitation programme continued. 7 Upon the plaintiff's return to Exmouth modifications had to be carried out to her home in order to cater for her disabilities and take account of the fact that her home needed to be adapted for wheelchair access as she was wheelchair reliant. 8 On 1 August 2000, exactly one year after the date of the accident, the plaintiff contacted her solicitors by telephone with a view to instructing them to act on her behalf in her claim. Shortly after receiving instructions in August 2000 the plaintiff's solicitors attempted to obtain a copy of the police file relevant to the investigation of the accident by police. The plaintiff's solicitors received this material in November 2000. In the interim a representative of that firm travelled to Broome in September 2000 to inspect the site and speak to various witnesses. Following this, it would seem that witness statements and proofs of evidence were obtained with a view to providing the plaintiff with detailed legal advice. After receiving further advice from her solicitors in May 2001 the plaintiff requested a personal meeting with them to further discuss her case. Unfortunately she was not able to attend such an appointment until 25 September 2001 due to her commitment to her ongoing rehabilitation and medical treatment. 9 After this meeting the plaintiff instructed her solicitors to notify the defendant that she intended to proceed with legal action against them and as has been noted upon receipt of this information the defendant declined to waive the limitation period. The plaintiff then instructed her solicitors to file an originating summons seeking leave to commence an action. The plaintiff further points out in her affidavit that there is no longer a possibility that she can return to work in her former position with the Kimberley Aged Services due to her limited range of mobility and inability to travel to remote communities. This, she says, will result in a very significant claim for loss of earnings. It is alleged that the plaintiff will require ongoing care and medical treatment as her daily requirements for care are significant. As I understand it the plaintiff claims that this is a serious matter and a claim, if leave is granted and the action succeeds
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either in whole or in part, will result in a not insignificant award of damages. 10 The defendant argues that not only is the delay not justified in all of the circumstances but further that they are prejudiced because they will find it extremely difficult, if not impossible, to ascertain and locate the owner of the cow involved in the accident after the lapse of time. This is of considerable relevance it is said because if the defendant was able to ascertain and locate the owner of the animal it would be able to join the owner in any proceedings with a view to seeking an indemnity and/or contribution from the owner. In a further affidavit of 14 August 2002 Mr Robinson deposes that due to the large number of accidents that occur on Western Australian roads and the limited resources available to the defendant, as a matter of policy and resource management the defendant only routinely investigates fatal accidents. In the event that the defendant is notified of a person's intention to claim against it as a result of an alleged accident then it is the defendant's policy to investigate the alleged accident and in this case it is said that if such notification had been forthcoming at a time proximate to the alleged accident then the defendant would have investigated it promptly. 11 The police, however, did investigate the accident and a copy of the resulting report is annexed as "SE-1" to the plaintiff's affidavit. It is said there that the driver of the vehicle, being the plaintiff, encountered cattle wandering on the roadway prior to the collision and as a result drove at a speed of about 80 kph in anticipation of cattle wandering on the road. It is not entirely clear on this document where that particular information came from, in the sense of whether it came from the plaintiff herself or one or more of the passengers. The report says the collision with the cow occurred in relative darkness when the animal walked from the roadside on to the southbound lane into the path of the plaintiff's vehicle. The plaintiff braked and skidded approximately 1.5 m before striking the animal with the front centre of the vehicle. The vehicle had an aluminium bullbar with a spare tyre attached to it. As a result of the collision the animal was lifted off the roadway on to the front of the vehicle and markings of animal hair were left on the roadway indicating the cow was carried approximately 21 m before being released from the front end of the vehicle. After this the vehicle travelled in a diagonal direction for approximately 13 m in the northbound lane of the carriageway before leaving it and travelling 23 m into bushland at which point it came to rest. The two passengers in the rear seat were thrown from the vehicle, whilst the front passenger and the plaintiff were trapped inside it. Fortunately another vehicle travelling towards Broome came upon the scene moments
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after the crash and quickly arranged to obtain assistance from some nearby campers. These people then attended Roebuck roadhouse to call for assistance from police. 12 Police arrived at and controlled the scene until the State Emergency Service Fire Brigade and ambulance authorities arrived. The scene of the crash was marked and a handwritten plan of it was drawn. Observations were made as to the weather conditions at the time and the state of the plaintiff's vehicle. Police carried out a search of the road and surrounding bushland but were unable to locate the cow which had been involved in the collision with the plaintiff's vehicle. As far as I am able to ascertain nothing is known of this animal or its origins or indeed what, if anything, happened to it after it was struck. There are nearby cattle stations I am informed, but it does not seem that any persons on those stations including stockmen and/or drovers were spoken to regarding whether or not they had any knowledge of an injured or indeed dead beast. It is not known in fact if the animal in the end result came from a station or was branded in any way, or if in fact it had no owner and was simply wandering in the area. This is all somewhat speculative and at this point regrettably these questions are not capable of being answered. There is no affidavit filed on behalf of the defendant indicating what investigations, if any, have been made or might be made with a view to locating the owner of the animal. From a purely practicable point of view the question must be asked whether if the police were unable to find any evidence of the animal very shortly after the collision then would not occupants of stations in the area encounter similar difficulties even if they had been asked about the matter at a time proximate to the collision. It must be noted that the area in question is extremely remote and the cattle stations are very large properties. It may well be that a single animal missing from the property, if in fact that was the case, would necessarily be noted. 13 In considering whether it is just to grant leave to the plaintiff to bring an action one must consider whether the plaintiff would be prejudiced if such leave was not forthcoming and secondly, whether the plaintiff has a reasonable cause of action. This does not involve any final determination of the merits of the proposed action. One must also be mindful and take into consideration the question of any prejudice which might be occasioned to the defendant if such leave were to be granted. 14 There is no doubt that there are sound policy reasons underlying a limitation period of the nature in question being imposed by the legislature. For this reason an extension to the provision, as the defendant points out, is an exception to it and the onus of satisfying the Court that
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the discretion should be exercised in favour of the plaintiff lies upon the plaintiff; Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866. The Court must decide whether it would be just to grant leave to the plaintiff to bring the action and whether it would be fair and proper in all the circumstances to do so; Pitcher Products Pty Ltd v Country Roads Board (1964) VR 661. 15 Section 47A(3)(b) of the Act raises the following considerations: 1. Is the failure to give the required notice or the delay in bringing the action occasioned by mistake or any other reasonable cause; 2. Alternatively, is it established that the prospective defendant was not materially prejudiced in his defence or otherwise by the delay; 3. If either of the above preconditions for the exercise of the Court's discretion is established, is it just to grant leave to bring the action, with or without conditions; Matheson v Commission of Main Roads & Anor [2001] WASCA 402. 16 Clearly it is not contended in this application that the plaintiff's failure to give the required notice was as a result of any mistake or misunderstanding on her part. That then gives rise to the question of whether there is any other reasonable cause for the delay in giving the defendant the required notice. A reasonable cause is one which a reasonable person would regard as sufficient and a cause consistent with a reasonable standard of conduct being the type of matter which might be expected to delay the taking of action by a reasonable person; Quinlivan v Portland Harbour Trust [1963] VR 25. 17 The defendant contends that the plaintiff's explanation for the delay in notification, being her lengthy hospitalisation and ongoing commitment to rehabilitation and physiotherapy, does not constitute reasonable cause pursuant to the Act. It is correct that after the plaintiff's initial four month hospitalisation in the following year she was hospitalised for a much shorter period of time overall being approximately three weeks. In my view, however, one simply cannot look at this aspect of the matter as a pure mathematical exercise. From the material available to the Court it is clear that the plaintiff suffered substantial and somewhat debilitating physical injuries. Whilst there is no psychological or psychiatric material before me deposing to any emotional and psychological stress suffered by
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the plaintiff as a result of the events of 1 August 1999, as a matter of commonsense and human experience I have little difficulty in concluding that the plaintiff would in all likelihood have been very much focused on her physical situation and recovery programme in the 12 months or so following the accident. It may well be, and I consider that it would be understandable in the circumstances, that the plaintiff did not turn her mind to the question of investigating any legal redress that might be open to her. The defendant argues that notwithstanding the unfortunate position in which the plaintiff may have found herself there were doubtless others around her that could have taken up the matter on behalf of the plaintiff. This may well be the case but from the material available at this point in time it is somewhat speculative. In the circumstances I am satisfied that there is a reasonable cause underlying the failure of the plaintiff to give the required notice within the 12 month period and the subsequent delay in bringing the action. 18 The defendant bears an evidentiary onus to demonstrate that it would be materially prejudiced in its defence or otherwise by the delay. If that point is reached the onus then shifts to the plaintiff to displace the inference of material prejudiced; Baker v Shire of Albany (1994) 14 WAR 46. I accept that the defendant is a large government department which does not possess limitless investigative resources and it is for that reason, as I understand it, that it is only in those matters where a death has occurred which are investigated by it. For this reason the defendant did not investigate this incident as a matter of course and so now finds itself in the position of it being extremely unlikely that it will be able to ascertain the owner of the cow allegedly involved in the accident, if indeed that animal was owned by anyone. It is not possible, however, to say with absolute certainty that the defendant could necessarily join the owner of the cow as a third party. One has to bear in mind of course that at a time very proximate to the accident the police were not even able to locate the animal in order to obtain any information relevant to the animal and its origin. For that reason one has to query whether even if the defendant had been able to make enquiries more expeditiously they would have had a significantly different outcome. 19 On the other hand one must also consider the question of possible prejudice to the plaintiff in being denied an opportunity to bring an action where there are serious allegations of negligence and a foreshadowed claim for damages which at the end of the day, depending on the outcome of the proceedings, might well be of some substance.
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20 The Court may grant an application for leave to bring proceedings where the limitation period has not been complied with if in the exercise of its discretion the Court considers it just to do so. The exercise of this discretion will of course involve a consideration and balancing of a number of factors. The plaintiff must, I accept, do more than prove the facts in order to establish and trigger the exercise of the discretion; Posner v Roberts (1986) WAR 1. The Court must consider the cause of action and as has previously been noted whether or not the prospective plaintiff would suffer any material prejudice if denied the opportunity to pursue the claim. Having made that observation, however, it is not the role of the Court in this application to determine or comment in any definitive manner about the merits of the plaintiff's prospective case.
21 In all of the circumstances known to me at this point I take the view that the plaintiff should be granted leave to commence an action against the defendant for damages with respect to disabilities allegedly sustained on 1 August 1999. In reaching this conclusion I am aware that the defendant has been deprived of the opportunity of investigating this matter at an early opportunity, but as against that these are serious allegations which on the face of it may have serious repercussions for the plaintiff and her ongoing situation. This is not intended as any form of comment on the merits of the case but merely to highlight the fact that it is a serious matter and it would be a very significant step to deprive a plaintiff of the opportunity to pursue these allegations in the usual way within the legal system. Finally, as previously noted, I consider that the delay on the part of the plaintiff has reasonable cause.
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