Harris v Shire of WILLIAMS
[2008] WADC 160
•24 OCTOBER 2008
HARRIS -v- SHIRE OF WILLIAMS [2008] WADC 160
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 160 | |
| Case No: | CIVO:68/2008 | 1 OCTOBER 2008 | |
| Coram: | KEEN DCJ | 24/10/08 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | DEAN LESLIE HARRIS SHIRE OF WILLIAMS |
Catchwords: | Negligence Application for leave to bring an action under s47A Limitation Act 1935 (WA) |
Legislation: | Limitation Act 1935 (WA) |
Case References: | Akermanis v Melbourne & Metropolitan Tramways Board [1959] VR 114 Commissioner of Railways (Victoria) v Casaccio [1961] VR 157 Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402 Posner v Roberts [1986] WAR 1 Quinlivan v Portland Harbour Trust (1963) VR 25 Smith v Department of Conservation and Land Management [1999] WADC 240 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SHIRE OF WILLIAMS
Defendant
Catchwords:
Negligence - Application for leave to bring an action under s47A Limitation Act 1935 (WA)
Legislation:
Limitation Act 1935 (WA)
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr D Bruns
Defendant : Mr J Eller
Solicitors:
Plaintiff : Separovic & Associates
Defendant : John Eller
Case(s) referred to in judgment(s):
Akermanis v Melbourne & Metropolitan Tramways Board [1959] VR 114
Commissioner of Railways (Victoria) v Casaccio [1961] VR 157
Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402
Posner v Roberts [1986] WAR 1
Quinlivan v Portland Harbour Trust (1963) VR 25
Smith v Department of Conservation and Land Management [1999] WADC 240
(Page 3)
1 KEEN DCJ: In this matter the plaintiff, by way of originating summons, seeks leave pursuant to s 47A(3) Limitation Act 1935 ("the Act") to bring an action against the Shire of Williams (the "prospective defendant") arising out of injuries sustained by him in an accident on 17 August 2005.
The application and the background
3 The plaintiff's application is supported by affidavits sworn by Jacqueline Brown, a law clerk employed by the plaintiff's solicitors on 5 June 2008 and on 13 October 2008, an affidavit sworn by the plaintiff on 11 October 2008 and a minute of proposed statement of claim dated 25 June 2008.
4 The minute of proposed statement of claim alleges that the plaintiff was at the material time employed by Co-operative Bulk Handling Ltd as a receival point operator. On the day in question it became necessary for the plaintiff to use a stand pipe at Williams in order to fill the water tank on the back of the truck that he was driving. The stand pipe facility was provided by the prospective defendant. It is said that it had a duty to take reasonable care to see that the facility was properly maintained so as not to cause injury to users. The statement of claim goes on to allege that the stand pipe had high water pressure which caused water to gush over the plaintiff whilst he was standing on the tray of the truck attempting to fill the tank. It is alleged that he was unable to control the flow with the use of the upper tap since it was stiff and difficult to operate. It is alleged that he descended from the truck rapidly in order to turn off the lower tap but his heel rolled under "on the uneven ground" and he fell, sustaining injury.
5 It is said that the prospective defendant was negligent in:
(a) failing to maintain the stand pipe;
(b) failing to provide an on/off "flick" tap for controlling the flow at the upper level;
(c) failing to lubricate or otherwise make fit for use the upper tap; and
(d) failing to maintain the surface beneath the tap to see that it was level.
6 As a result of the accident the plaintiff is alleged to have sustained inter alia a broken right knee.
7 In his affidavit sworn 11 October 2008 the plaintiff deposes that the tap on the stand pipe caused him to be unexpectedly sprayed with water.
(Page 4)
- He said that as he stepped off the truck he stepped into a "large pothole" on the ground and fell awkwardly onto the ground on his right-hand side and injured his right leg.
8 He deposes that he was taken to hospital where he remained until 25 August 2005. He was in receipt of weekly payments of compensation until June 2007 and in August 2007 the worker's compensation insurers made an offer to settle his worker's compensation claim. Until that time he had not taken any legal advice with regard to his accident. On receiving the offer to settle his worker's compensation claim he attended the plaintiff's solicitors on 10 September 2007. This was the first time that he sought legal advice and he deposed that he did not know there were time limits regarding taking action against the prospective defendant.
9 Ms Brown in her affidavit sworn 5 June 2008 deposes to the worker's compensation claim that had been made to the plaintiff's employer. She deposes that the worker's compensation insurer had investigated the circumstances of the accident and therefore no prejudice will be sustained by the prospective defendant in defending the proposed proceedings. Annexed to her affidavit is a letter dated 29 February 2008 from those solicitors to the prospective defendant requesting consent to legal proceedings being commenced post 12 months following the plaintiff's accident. The prospective defendant has not so consented.
10 That letter set out the facts as were then known to the solicitors for the plaintiff. It is said in that letter that whilst the plaintiff was on the truck he had noticed that water started spraying out of the top of the water tank due to the high water pressure and the hose moving out of the down pipe. He also noticed that the top tap was tight and difficult to turn. It was said in that letter that the plaintiff was getting very wet due to water spraying out of the top of the truck's water tank and he decided to get off the truck in order to turn off the water using the stand pipe's lower tap. It is said:
"As he stepped off the truck, he stepped into a large pothole on the ground."
11 Jacqueline Brown in her affidavit sworn 13 October 2008 deposes that the plaintiff's solicitors were first instructed by the plaintiff on 10 September 2007 and that "the circumstances of the accident were unusual and it was not obvious who, if anyone, was to blame". They then
(Page 5)
- instructed investigators to attend the site of the accident and take photographs and obtain a statement from the plaintiff. It is then said:
"In the meantime, it became apparent that Zurich (the worker's compensation insurer) had investigated the accident and taken photographs in about October 2005."
13 Ms Brown deposes that photographs of the relevant area, of which the plaintiff's solicitors have copies, were taken in about October 2005.
Relevant legislation
14 Section 47A of the Limitation Act 1935 relevantly provides:
"47A. Protection of persons acting in execution of statutory or other public duty
(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (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 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,
- and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.
(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."
(Page 7)
15 The requirement that the plaintiff needs to satisfy in order to obtain leave under s 47A(3) can be paraphrased as:
(a) that the delay in bringing the action was occasioned by a mistake;
(b) alternatively, the delay in bringing the action was occasioned by any other reasonable cause;
(c) alternatively, the prospective defendant is not materially prejudiced in its defence or otherwise by the delay.
16 If one of those conditions is satisfied then the Court has a discretion to grant leave if it is just to do so to bring the proceedings out of time; Matheson v Commissioner of Main Roads & Anor [2001] WASCA 402, per Murray J at 18.
The plaintiff's case
17 The plaintiff accepts that mistake of law is not a relevant mistake for the purposes of s 47A of the Act. The plaintiff relies upon the delay being occasioned by some other reasonable cause and says that the proposed prospective defendant has not been prejudiced by the delay.
18 The plaintiff says that he was incapacitated for approximately 10 months and it was only when he returned to work and settlement was raised with his then employer that he sought legal advice. It is said that the plaintiff did not know of the time limits and that can constitute reasonable cause. In support of that proposition the plaintiff relies upon Akermanis v Melbourne & Metropolitan Tramways Board [1959] VR 114.
19 It is said by the plaintiff that where there is incapacity such as that sustained by the plaintiff and the plaintiff was not aware of the need for notice to be given to the prospective defendant and, in the circumstances of this case, where the plaintiff lives in the country, these together constitute reasonable cause for the plaintiff having failed to give notice. Allied to that is the fact that his solicitors in Perth, when consulted, needed to investigate the matter further. This also constitutes reasonable cause for not bringing proceedings within the time limit specified in the Act.
(Page 8)
20 In Quinlivan v Portland Harbour Trust (1963) VR 25 at 28 Sholl J said that reasonable cause is:
"… a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
21 The plaintiff also argues that the prospective defendant has not been prejudiced by the delay in giving notice or instituting proceedings. The plaintiff's argument is that the requirement to give notice to the prospective defendant as soon as practicable after the cause of action would, in the circumstances of this case where the plaintiff is incapacitated, run to a matter of weeks after the accident. The issue, the plaintiff argues, is whether or not the prospective defendant would have been in any better position to meet the claim had notice been given in that period.
22 It is well established that the prospective defendant carries an initial evidentiary onus to raise the question that material prejudice might exist. Once the evidence has reached that stage the ultimate onus to displace the inference of material prejudice rests upon the prospective plaintiff; see Matheson's case at 52.
23 The plaintiff says that the prospective defendant has not satisfied that initial evidentiary onus.
24 So far as the discretion that resides in the Court as to whether or not to grant the application is concerned the plaintiff need not show a prima facie case. Leave will be refused if the applicant has no case; Posner v Roberts [1986] WAR 1 at 6.
25 The plaintiff argues that the statement of claim and the affidavits show an arguable case on the part of the plaintiff.
The prospective defendant's case
26 The prospective defendant has filed an affidavit sworn by Mr Vincenzo Epiro on 23 July 2008. He is the Chief Executive Officer of the prospective defendant.
27 Mr Epiro deposes that the prospective defendant did not become aware of the plaintiff's intention to institute these proceedings until almost 2½years after the incident in question by the letter of 29 February 2008.
(Page 9)
28 He deposes that he then caused an inspection of the stand pipe area to be carried out on 6 March 2008 which revealed no potholes in the relevant area. The area is constituted by a gravel surface.
29 I pause here to note that I was provided with photographs that have been taken recently of the area. I received those photographs without objection from the plaintiff but on the basis that they depict the area where the accident occurred; not that they show the state of the area at the material time. It can be seen from those photographs that the area leading to the stand pipe and in the vicinity of the stand pipe is a gravel or dirt roadway as is the standing area.
30 Mr Epiro also deposed that he could find no record of any report of a previous incident at the site nor any allegations there were any potholes in its surface. He said:
"… It is the Shire's practice to inspect and maintain the stand pipes once a year by adding gravel and grading."
31 Mr Epiro said that the prospective defendant was severely prejudiced in that it is impossible to carry out any investigations as to the cause of the plaintiff's accident. He said that this was because the area in question has a gravel surface which obviously changes with prevailing weather conditions and general traffic use. He said that it was impossible to carry out investigations which would corroborate or deny the plaintiff's allegations.
32 The position argued for by the prospective defendant is not in relation to the proceedings not being commenced within the statutory 12 month period but by reason of the plaintiff not giving notice to the prospective defendant as soon as practicable after the cause of action arose giving reasonable information of the circumstances upon which the proposed action would be based.
33 That clearly must be the prospective defendant's position because it is the prospective defendant's position that the surface being gravel weather conditions would change the nature of the ground. It was said by the prospective defendant that if it had been put on notice within a contemporaneous period it could have investigated the site. It was argued that potholes in this area would or could be formed with the weather conditions and could be created at any time. It was said by the prospective defendant that one can only speculate as to what the ground condition was.
(Page 10)
34 It was also argued on behalf of the prospective defendant that there is no nexus between the state of the tap, as pleaded, and the plaintiff injuring his leg.
35 Further so far as the discretion is concerned the prospective defendant argued that this claim was a "try on"; Commissioner of Railways (Victoria) v Casaccio [1961] VR 157 at 160.
The delay
36 As I have noted, the delay in this matter is one that relates to the giving of notice rather than the bringing of the proceedings within the 12 month period. This is because the prospective defendant accepts, on its own argument, that the ground where the accident occurred is susceptible to change at any time by adverse weather conditions or otherwise. Further, the obligation to give notice is one that should be undertaken as soon as practicable after the event but also by giving reasonable information of the circumstances. Behind that is that the giving of such information would enable the prospective defendant to investigate the circumstances.
37 The plaintiff argued that the period "as soon as practicable" was one which extended for a matter of weeks after the accident given that the plaintiff was in hospital and incapacitated. So much was accepted by the prospective defendant. Noting that the plaintiff was in hospital until 25 August 2005 there is no explanation for any delay in giving notice after that date other than that the plaintiff was not aware of the time limits for taking action against the prospective defendant. That does not alter the position so far as notice is concerned. The plaintiff's own concession is that as soon as practicable is a matter of weeks after the accident. No such notice was in fact given. Accordingly I am unable to find that notice was given as soon as practicable and further that the failure to give notice was occasioned by a reasonable cause.
38 I do not accept the argument put forward by the plaintiff that the incapacity and the location of the plaintiff are reasonable cause in this case. The plaintiff had sustained what appears to be a serious injury. On the plaintiff's case he argues that not only had the prospective defendant failed to maintain the surface at the site of the stand pipe but it also failed to maintain the stand pipe itself. Whether or not at trial a necessary nexus is found between the failure to maintain the stand pipe and the accident remains to be seen. Suffice it to say that for the moment it demonstrates that the plaintiff was prepared to blame the prospective defendant for his serious injury.
(Page 11)
39 In my view given that the accident occurred in a place where the surface was susceptible to change by way of weather conditions and, on the plaintiff's own case, susceptible to a soaking from the stand pipe, a reasonable person sustaining injuries such as those sustained by the plaintiff in the circumstances in which the injuries were sustained, should be expected to bring those conditions to the attention of the responsible authority at an early date. I would accept that some delay would be reasonable whilst the plaintiff is still undergoing treatment and for a short period thereafter, but delay thereafter has not been explained other than that the plaintiff said that he did not know of the obligation to bring proceedings within the 12 month period. The plaintiff goes no further to explain or excuse the delay by a cause or causes which would be consistent with a reasonable standard of conduct which might reasonably be expected of a reasonable man to delay the giving of notice.
Prejudice
40 The prospective defendant does not say when it is within the period of a year that it carries out inspection and maintenance of stand pipes as described in the affidavit of Mr Epiro.
41 In Posner's case Master Staples had to deal with the question of whether or not a prospective defendant was materially prejudiced by the failure to give notice or delay in taking the proceedings. The learned Master noted that the prospective defendant there complained that the plaintiff's failure and delay deprived the prospective defendant of the opportunity of investigating the allegations there made. In that case it was an allegation of loose turf on a race track which was critical to the plaintiff's proposed action in negligence. The learned Master said:
"To be of much use any such investigation would have had to have been made either before the condition of the track changed, or if it had changed, while it was still likely that those familiar with the track would be able to recollect its condition at the relevant time. There must be a causal relationship between the failure or delay of the applicant and the material prejudice to the prospective defendant. It is not likely, in my view, that inquiries made just short of 12 months after the accident would be very fruitful. I consider, therefore, that the prospective defendant cannot be said to have been prejudiced by the plaintiff's failure to take proceedings within the limitation period."
(Page 12)
42 There the learned Master was talking about the failure to bring proceedings within the limitation period. He opined that inquiries made just short of that period would not have been very fruitful and with respect I agree. That is not what the prospective defendant relies on in the current case. The prospective defendant here relies upon the failure to give notice so that the matter could be investigated.
43 The prospective defendant's case can be put simply; that the surface being gravel can be altered very rapidly by adverse weather conditions or even movements over the gravel.
44 If that is the case then, if as soon as practicable is a matter of weeks from the accident, then the point made by the learned Master in Posner's case has only limited relevance to the current case. The question can be posed - is it likely that inquiries made a matter of weeks after the accident would have been fruitful.
45 Notwithstanding the prospective defendant's argument that the site could change due to weather or traffic movement, the ability to inspect the site at an early date may be crucial and of value.
46 For example, if, after notice within a reasonable time, the prospective defendant had inspected and found a pothole that may have assisted the plaintiff but it would, no doubt, put in train further enquiries about the intervening weather conditions and other matters which may or may not impact upon any inference that it was the same pothole to which the plaintiff referred.
47 On the other hand, if no pothole was found then, depending on the prospective defendant's maintenance regime, that may be strong evidence that no such pothole existed so as to cause the plaintiff's accident.
48 Something that might reasonably affect the ability of a prospective defendant to possibly defend the action will be material prejudice; Smith v Department of Conservation and Land Management [1999] WADC 240.
49 The delay in receiving notice has deprived the prospective defendant of the opportunity to effectively investigate the claim and possibly defend the action and I am satisfied that the prospective defendant has satisfied its evidentiary onus.
50 It is a matter of some concern that the plaintiff apparently has photographs of the scene taken by investigators on behalf of the worker's compensation insurers in October 2005, that is to say within a couple of
(Page 13)
- months or so from the date of the accident. The prospective defendant has not seen these photographs nor have they been shown to the Court for the purposes of this application. They may or may not have shed some light upon the matter.
51 Having regard to the matters to which I have referred I am not satisfied that the plaintiff has demonstrated there has been no material prejudice to the prospective defendant in the present case.
Discretion
52 As can be seen from the foregoing the plaintiff has not satisfied me that one of the conditions set out in s 47A(3)(b) of the Act has been satisfied. Accordingly the discretion whether or not to grant leave to bring the action does not arise for consideration nor the prospective defendant's assertion that the case is a "try on" as that expression is used in Victorian Railway Commissioners v Casaccio (supra).
Conclusion
53 In the circumstances the application for leave to bring the proposed action will be dismissed.
0