MARSHALL by his next friend Sian Rhonda Roberts v Commissioner of Main Roads
[2006] WADC 116
•20 July 2006 typed from tape and edited by Trial Judge
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MARSHALL by his next friend SIAN RHONDA ROBERTS -v- COMMISSIONER OF MAIN ROADS [2006] WADC 116
CORAM: GOETZE DCJ
HEARD: 19-20 JULY 2006
DELIVERED : Delivered Extemporaneously on 20 JULY 2006 typed from tape and edited by Trial Judge
FILE NO/S: CIVO 69 of 2006
BETWEEN: TRISTAN JAMES MARSHALL by his next friend SIAN RHONDA ROBERTS
Plaintiff
AND
COMMISSIONER OF MAIN ROADS
Defendant
Catchwords:
Negligence - Breach of statutory duty - Application for leave to bring action under s 47A(3) of the Limitation Act 1935 - Requirements for the grant of leave
Legislation:
Limitation Act 1935, s 47A
Main Roads Act 1930, s 27A(2)
Result:
Leave refused
Representation:
Counsel:
Plaintiff: Mr D M Bruns
Defendant: Mr J P Wilson
Solicitors:
Plaintiff: Bradley & Bayly
Defendant: Mullins Handcock
Case(s) referred to in judgment(s):
Hughes v Minister for Health [1999] WASCA 131
Ion v Minister for Works unreported; Library No 3721; 7 May 1993
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Milentis v The State of Western Australia & Anor, unreported; SCt of WA; Library No 9020; 30 August 1991
Posner v Roberts [1986] WAR 1
Quinlivan v Portland Harbour Trust [1963] VR 25
Smith & Ors v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240
Western Australia v Watson [1990] WAR 248
Case(s) also cited:
Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114
Baker v Shire of Albany (1994) 14 WAR 46
Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Cairns v Minister for Education, FCt SCt of WA; Library No 970679; 21 November 1997
Edgemere Pty Ltd v Minister for Fisheries & Anor, unreported; SCt of WA; Library No 970222; 12 May 1997
Irwin v Board of Management of Royal Perth Hospital (1994) 11 SR (WA) 140
Murnik & Anor v Shire of Dandaragen [2004] WASC 243
Perry v City of Armadale [2004] WASC 167
Posner v Roberts [1986] WAR 1
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Victorian Railways Commissioners v Casaccio [1961] VR 157
GOETZE DCJ: The infant plaintiff was born on 22 September 1993. On 22 July 2000, when he was nearly seven years of age, he rode his bicycle down a hill in an easterly direction, being Monger Court in Bunbury. Monger Court forms a T‑junction with Brand Avenue. As the plaintiff entered onto Brand Avenue he collided with a motor vehicle being driven in a northerly direction as a result of which, the infant plaintiff sustained serious injuries. Monger Court is not controlled by a stop sign and does not have any other traffic calming measures.
The infant plaintiff's mother, Sian Rhonda Roberts, has sworn an affidavit dated 16 May 2006 in which she has recited a number of matters, including:
"4.I believe that at the material time the plaintiff was riding a bicycle east down Monger Court approaching the T‑junction intersection of Monger Court and Brand Avenue and was intending to cross over Brand Avenue to a vacant area of land which children in the area regularly used as a BMX track.
…
6.At the material time the plaintiff was in the company of three or four other children including his brother and sister who were also riding bicycles.
7.The junction of Monger Court and Brand Avenue was not controlled by any stop signs or other traffic calming measures despite the fact that Monger Court runs downhill to Brand Avenue and is dangerous.
8.I believe the defendant knew or ought to have known that children or groups of children regularly rode their bicycles down Monger Court crossing Brand Avenue.
9.I believe that if there was a stop sign at the bottom of Monger Court, Tristan (who is the infant plaintiff) would have stopped as I was always diligent to teach him and my other children to always stop at the stop signs."
There is an objection to par 7 on the basis that the question as to whether the accident site was dangerous is properly the subject of expert evidence. The only stated reasons for the danger are the facts of the existence of a hill and the T‑junction and possibly the fact of the collision. As such, I am only prepared to accept this statement as the opinion of a lay person given for the limited purpose of this application.
The defendant also objects to par 8 on the basis that the plaintiff's mother has not indicated any reasonable grounds for the belief which she has stated. This is perhaps highlighted by her description of the BMX track in par 4 as being a "vacant area of land". There is therefore force in this objection, but I will not reject the paragraph as being a matter of stated belief. However, little weight can be given to it.
Further, par 9 is objected to on the basis that the question as to whether the plaintiff would have stopped had there been a stop sign is a matter to be decided by the trial judge. For reasons which I will discuss later, little weight can be placed on this paragraph, but I will accept it as the statement of the plaintiff's mother's belief for the limited purpose of this application.
Counsel for the plaintiff informed me from the Bar table that in November 2000, the Insurance Commission of Western Australia, as insurer of the driver of the motor vehicle involved in the collision with the infant plaintiff, declined liability for the plaintiff's claim for damages for personal injury arising from that accident.
This denial of liability followed, it seems, from the mother having lodged a claim on behalf of the infant plaintiff. From an affidavit sworn on behalf of the defendant by Barry John Robinson on 17 July 2006, it seems that in November 2001 the Insurance Commission obtained a legal opinion on the issue of liability for the accident (see par 25). On the plaintiff's evidence, nothing occurred between November 2000 and October 2003 and so I am tempted to ask rhetorically why it might have been that the Insurance Commission obtained the legal opinion in November 2001.
However, as I say, nothing occurred on the plaintiff's evidence between November 2000 and 17 October 2003 when the plaintiff's mother consulted the solicitors who have brought this application. An approach by them to the Insurance Commission at that time resulted in the Commission again declining liability in November 2003 for the plaintiff's claim for damages. This is referred to in the affidavit of Yerko Damir Radich, sworn 17 July 2006 at par 3 thereof.
In November 2003, the plaintiff's solicitors obtained a copy of the police file relating to the accident. That is set forth in Mr Radich's affidavit at par 5, and in April 2004, the Insurance Commission declined to provide copies of the witness statements or other details held by it to the plaintiff's solicitors. That is at par 6 of Mr Radich's affidavit. Counsel for the plaintiff is not aware of any ongoing claim or correspondence between the plaintiff or the plaintiff's solicitors and the Insurance Commission.
However, I would not have thought that the plaintiff's claim for damages against the driver of the vehicle involved in the crash is fatally flawed in circumstances of the accident as has been described in the police report annexed to Mr Radich's affidavit and in the plaintiff's mother's affidavit. That claim can still be brought independently of any action which the plaintiff seeks to bring in the event of this application succeeding, and it is a matter to which I will return later.
At an undisclosed time, the plaintiff's solicitors travelled to Bunbury to view the accident scene and obtain witness statements. Following this, in September 2004, they wrote to the City of Bunbury to notify it of a claim which subsequently resulted in an originating summons issuing against the City of Bunbury at some unknown time in 2005 seeking the same relief against the City of Bunbury as this present summons now seeks against the Main Roads Department. That information is detailed in Mr Radich's affidavit at pars 6, 7 and 8.
However, the plaintiff's solicitors subsequently decided not to proceed against the City of Bunbury and the originating summons against it was dismissed, by consent, in May 2006. At that time it was decided that the plaintiff would pursue the present defendant. This followed "significant investigations" carried out by the plaintiff's solicitors. As to those matters, see pars 8, 9 and 11 of Mr Radich's affidavit.
The affidavit from Mr Radich unfortunately does not detail what the "significant investigations" (par 11) were or what they revealed, but based on their "further inquiries and investigations" (par 9), the plaintiff's solicitors formed the view that the plaintiff has a cause of action against the present defendant. I have not been provided with a draft statement of claim or the precise or any details of the cause or causes of action, but presumably they would be negligence and/or breach of statutory duty.
This then leads me to detail the basis of this application pursuant to s 47A(3) of the Limitation Act 1935 for leave to commence proceedings out of time. Section 47A reads as follows:
"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 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,
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)A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subs (1) has been given.
(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 six year period from the date on which the cause of action accrued expires on 21 July 2006; that is tomorrow, hence the parties have requested these oral reasons today. The plaintiff however is still an infant and there is a consequence of a further time period available to him as an infant. However, it is now almost five years exactly since the one year period permitted by s 47A(1)(b) of the Limitation Act expired. It was during that first year period after the accident that the plaintiff could have brought an action against the present defendant and in respect of which, he now seeks an extension of time.
The requirements of obtaining leave when that one year period has expired are set out in the Matheson v Commissioner of Main Roads (2001) 25 WAR 269, which involved facts very similar to the present matter. At [18], Murray J said that an application of this nature is required to address the three issues raised by s 47A(3)(b):
"(1)Was that the delay in bringing the action occasioned by mistake or any other reasonable cause;
(2)Alternatively, was it established that the prospective defendant was not materially prejudiced in its defence or otherwise by the delay;
(3)If either of the above preconditions for the exercise of the court's discretion was established, would it be just to grant leave to bring the action with or without conditions?"
Strong policy reasons require the limitation period set by section 47A to be complied with. See Smith & Ors v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240 at [20] and [21].
Returning then to the three requirements laid down by Murray J, the first is, was there delay occasioned by mistake or any other reasonable cause? In Ion v Minister for Works unreported; Library No 3721; 7 May 1993 the Chief Judge of the District Court at that time, Judge Heenan, said at p 6:
"Mistake involves an error following advertence to the subject matter. Ignorance is not mistake. In the section mistake is governed by the phrase 'any other reasonable cause' so that the mistake must be reasonably based and in itself provide a reasonable explanation for what has followed."
In Hughes v Minister for Health [1999] WASCA 131 Malcolm CJ at [42] referred to the meaning of the word "mistake" and gave it its ordinary meaning. Returning then to Matheson at [47], Murray J repeated what Malcolm CJ had said, and in [48] on the facts of that case, Murray J said that:
"The failure to bring an action against the present respondents is not attributed to any mistake or misunderstanding of any facts or circumstances surrounding the occurrence of the accident and bearing upon the capacity to maintain a cause of action against either or both respondents, nor indeed is there any suggestion that anybody misunderstood the law or gave wrong advice of that kind. There is simply nothing to show that the prospect of suing these respondents was even considered until years later when counsel was briefed."
On the facts of the present case before me, there is really little or no difference to Matheson's case. In the affidavit of Murray John Robinson sworn 17 July 2006, Mr Robinson deposed on behalf of the defendant:
"16.It is not the defendant's practice and procedure to investigate accidents that occur on the local road network. It is not the defendant's practice and procedure to conduct an evaluation of a site on the local road network unless there is a triggering event such as a request from the authority with the immediate care and control of the road, in this case the city, meaning Bunbury.
(17)It is the defendant's general procedure when dealing with local roads that the controlling authority, that is, the city, investigates intersections or conducts other evaluation processes and thereafter advises the defendant if the city perceives that there is a need for regulatory signage or pavement markings. The defendant then conducts its own investigation to determine whether a site comes within the defendant's guidelines as requiring the installation of a regulatory sign. These guidelines are in accordance with the Australian standard for traffic control devices for general use, AS174.2-1994."
This aspect is also covered in par 5 of the Matheson decision. Then we have, returning to Mr Radich's affidavit at pars 6, 7 and 8 the following:
"6.In April 2004 the Insurance Commission of Western Australia informed Mr Bayly that it was not in a position to forward copies of any witness statements or other details in relation to the accident.
My perusal of the file indicates that Mr Bayly instigated relevant investigations. An employee of Bradley and Bayly travelled to Bunbury to view the accident scene and obtained relevant witness statements.
7.In September 2004 there was correspondence from Bradley and Bayly to the City of Bunbury putting them on notice of the claim. There was subsequent correspondence between Bradley and Bayly and the City of Bunbury and later the Local Government Insurance Services, the insurer for the City of Bunbury.
8.An originating summons was issued in the District Court of Perth seeking leave to proceed against the City of Bunbury pursuant to section 47A of the Limitation Act. This is Originating Summons number 20220 of 2005. The Originating Summons was dismissed by consent in May 2006 on the basis that the vacant land/BMX track did not fall within the jurisdiction of the City of Bunbury and the erection of the traffic control signage was not the responsibility of the City of Bunbury but of the Main Roads Department."
So in the instant case, the plaintiff has not thought of suing the present defendant until such time as it was raised in proceedings involving the City of Bunbury. There was initiating correspondence to the City of Bunbury in September 2004. We know the originating summons issued at some time in 2005, but the date of issue has not been disclosed to me.
It is not known on the evidence what the plaintiff knew from September 2004 after first writing to the City of Bunbury. He has had solicitors since October 2003. It may be, that, from November 2000 when the Insurance Commission declined liability to the plaintiff's mother to 17 October 2003 when she instructed solicitors, the plaintiff may have determined to not take any further action against the driver of the vehicle because the Insurance Commission declined liability for his negligence in November 2000, but the plaintiff's mother has not provided any further evidence to explain her attitude or view of this matter between November 2000 and 17 October 2003.
There is nothing between October 2003 and September 2004 to explain the situation and there is nothing from September 2004 until May 2006. True it is that on Mr Robinson's affidavit the Insurance Commission obtained an opinion on liability in August 2001, but it does not seem that the plaintiff's mother or the plaintiff were aware of that. There is no explanation as to what it was that spurred the plaintiff's mother to seek legal advice in October 2003. There is no evidence to show that the prospect of suing the Main Roads Department was considered until May 2006.
I will not recite the facts from Mr Radich's affidavit again, but with reference to pars 5 to 9 thereof and the other matters that I have mentioned, it cannot be said that the plaintiff was mistaken in any way. Was there reasonable cause for the delay?
In Hughes, Malcolm CJ referred to the meaning of reasonable cause, quoting Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28:
"A 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."
See also Murray J at [49] in the Matheson decision where he pointed out there were very substantial periods in the period of overall delay in relation to which there was simply no explanation at all or no explanation for the delay in question. That is precisely the situation that we have here. Even though solicitors were instructed on 17 October 2003 and one party, the City of Bunbury, was prosecuted at some time in 2005, nothing was done to prosecute the present defendant until May 2006.
Again, noting that the facts are in many respects the same as in Matheson at [51], the only possible explanation for the failure to sue the Commissioner of Main Roads was that nobody thought of it until May 2006 and on the facts, there is no persuasive explanation consistent with a reasonable standard of conduct by the applicant or his legal advisers to satisfactorily explain and constitute reasonable cause for the failure to take action by at least 2004 or thereafter until May 2006.
The notice dated 2 May 2006 which was issued by the plaintiff's solicitors to the Commissioner of Main Roads is annexure A to the affidavit of the plaintiff's mother. At pars 2 and 3, the basis of the claim is set out:
" … At the time the Plaintiff was intending to cross over Brand Avenue to a vacant area of land which children were known to use as a BMX track ("the vacant land"). As he was crossing Brand Avenue, the Plaintiff was struck by a motor vehicle which was travelling north on Brand Avenue, as a result of which the Plaintiff sustained serious injuries.
It will be submitted that the Main Roads Department knew or ought to have known that groups of children regularly accessed the vacant land via Monger Court and in doing so crossed Brand Avenue on bicycles. At the relevant time the junction of Monger Court and Brand Avenue was not controlled by any stop signs or other adequate traffic control measures."
The letter then goes on to say that this application would be brought and that the letter serves as the relevant notice pursuant to s 47A(3)of the Limitation Act. I would have thought that had there been the "significant investigations" referred to in par 11 of Mr Radich's affidavit "which has partly resulted in the delay with respect to this application" and the "further inquiries and investigations" conducted in April and May 2006" referred to in par 9 of his affidavit upon which the plaintiff formed the view that there was a cause of action, that something more substantive would have appeared in the notice to the Commissioner, or at least in Mr Radich's affidavit.
Mr Radich's affidavit does not detail what the results were of those "further inquiries and investigations" and it is therefore difficult to understand why from September 2004 when the City of Bunbury was put on notice, that, as a precautionary matter the plaintiff's solicitors did not issue a similar notice to the Commissioner as it did to the City identifying the nature of the claim that is now intended to be brought. There is no explanation as to why that did not happen and as I have said, there is no explanation as to what the "further inquiries and investigations" revealed.
For those reasons, it does not seem to me that any reasonable cause for the delay has been established. Given that, it is then necessary to question whether there is any material prejudice to the Commissioner of Main Roads in the defence or otherwise by the delay.
Mr Bruns, counsel for the plaintiff, told me that it is not a matter of speculation that the BMX track was present on the other side of Brand Avenue. He asserted that the Main Roads Department should have known about it. He used the example of the Main Roads Department knowing, or that it should have known of, the presence of, say, a football oval at which people would attend.
Mr Bruns says that it is only necessary for him to state the basis of the plaintiff's claim with the facts to be proved later. The difficulty I have with this, on the facts, is that the evidence from the plaintiff's mother, is in par 4 of her affidavit, that it was only "a vacant area of land which children in the area regularly used as a BMX track". So it seems to me that it is really a matter of speculation to suggest that the Main Roads Department should have known that a vacant area of land was used by local children in Bunbury as a BMX track.
The facts also reveal that Monger Court is a hill leading down to Brand Avenue which has no control sign or other traffic regulatory system. However, reading further through the affidavit of the plaintiff's mother she deposes at par 4 to her "belief" of what the plaintiff was doing and to the plaintiff's "intention" was to cross Brand Avenue to the vacant land. From par 9 of her affidavit, she again deposes as to her belief that the plaintiff would stop at a stop sign.
In par 8, the plaintiff's mother takes this a step further and deposes as to her belief that the defendant knew or ought to have known that children or groups of children regularly rode their bicycles down Monger Court and crossed Brand Avenue, presumably to the vacant land. Again, the same problem is repeated. There is no direct evidence, only the plaintiff's mother's evidence of her belief, what she believed to be the plaintiff's intention and what she believed the defendant knew or ought to have known without providing any basis therefor.
Counsel for the plaintiff told me that it is only the movement of bikes on Monger Court that is relevant. The movement of cars on Brand Avenue would not have any effect on the plaintiff's argument.
Counsel says that the would‑be stop sign on Monger Court is the main leg of the plaintiff's claim. Likewise, traffic calming measures might be important. Mr Bruns says that there is a danger if there is one or ten cars on Brand Avenue.
The prejudice to the defendant can be picked up from pars 12 to 23 of Mr Robinson's affidavit. At subpar 23(a) Mr Robinson deposes that:
"23.The defendant would suffer material prejudice in the conduct of its defence as it is now not possible for it to ‑
(a)determine by way of surveys or other means whether the road was inherently dangerous at the time of the accident as the traffic conditions can reasonably be expected to have undergone changes especially relating to usage as the area became developed."
In annexures MJR 3 and MJR 4 to Mr Robinson's affidavit, we have aerial photographs of the intersection of Monger Court and Brand Avenue in the City of Bunbury which pick up the vacant land. It can be seen in the later photograph, MJR 4, that the land is no longer vacant and that there has been some substantial housing development in the area. It seems to me, with respect, that that makes it difficult for the defendant, now six years after the event, to be able to undertake studies which might reveal the amount of traffic passing through the area at the time of the accident.
In subpar (b) of par 23, Mr Robinson also refers to the need to establish the circumstances of the claim including visibility, speed at which the driver was travelling and any attempts either party made to avoid the other by reference to extrinsic evidence such as skid marks and other markers on the road, or in subpar (c), advertise for or interview witnesses.
This affidavit was sworn before the defendant received Mr Radich's affidavit which has the copy police file attached to it. So to a certain extent, subpars (b) and (c) of par 23 can be alleviated, but the problem remains that it is difficult for the Main Roads Department to investigate traffic conditions at the time of the accident and it is those traffic conditions that decide the need for signage.
Mr Wilson on behalf of the defendant makes the point that it is wrong to say that one only needs to look at bicycles travelling down Monger Court. Other relevant factors include the level of traffic on Brand Avenue and the line of sight which traffic on Brand Avenue would have had at the relevant time and because of the increased housing in the area, there must necessarily now be changed traffic conditions, so that the opportunity to investigate and determine vehicular conditions has now been lost. Whether there are any potential changes of foliage has not been disclosed on the evidence.
There is an allegation here that there is the need for a stop sign or other traffic calming device. But how could the Main Roads Department now marshal the evidence bearing upon that by a survey or proper investigation with the area having changed due to housing development since 2000? It would be a very difficult task.
The point arose during oral submissions that the statement of an independent witness who turned right from Brand Avenue into Monger Court and who necessarily had to stop her motor vehicle to allow the infant plaintiff to pass her vehicle on her left side is now to hand from the police file. Mr Bruns made the fair comment that we do not know from that statement where that independent witness brought her vehicle to a stationary position on the roadway, but the point that comes out of that is that six years later, the memories of witnesses wanes and it may not be possible, even with the best of intentions, to obtain the evidence in a fair manner where the delay is extreme.
That delay speaks of prejudice to the defendant within the meaning that Murray J dealt with it in par 19 of the decision in the Matheson case.
Mr Bruns referred me to Posner v Roberts [1986] WAR 1 at 6. This deals with a causal relationship between the failure or delay of the plaintiff and the material damage to the defendant.
The time to consider the prejudice, of course, is now when the application is made, following Milentis v The State of Western Australia & Anor, unreported; SCt of WA; Library No 9020; 30 August 1991. The material prejudice is one which might reasonably affect the ability of a defendant to possibly defend the claim against it. See Smith v Department of Conservation and Land Management which I have already mentioned. There is the probability that the defendant will be unable to advance matters of fact that might reasonably be supposed to affect the outcome of the litigation which the plaintiff would seek to bring.
Turning then to the last aspect, that is, that there is an exercise of a discretion required by me. It is to be noted that the discretion is to grant relief; it is not a discretion to refuse relief. See Posner case at p 6.
I have determined that the delay was not caused by mistake or any other reasonable cause. I have also determined that the prospective defendant is materially prejudiced in its defence or otherwise by the delay. Were it otherwise and the preconditions for the exercise of the discretion were made out, I do not think that this is an appropriate case for me to exercise that discretion in favour of the plaintiff. The preconditions referred to above are relevant to the exercise of the discretion (Matheson par 56). Further, it is necessary to look at the strength of the plaintiff's case to see whether it is weak or one of speculation.
Here, we have only evidence in support of the plaintiff's case being that the plaintiff's mother "believed" that he was riding his bike with the "intention" of crossing to a "vacant area of land", and it is "believed" that the defendant "knew or ought to have known" that that "vacant land" was used by local children as a BMX track. Further, that it is said that if there had been a stop sign, the plaintiff's mother "believed" that at six, nearly seven years of age, the plaintiff would have stopped. It seems to me that the case is one of speculation.
It also seems to me that the case against the Commissioner of Main Roads is not substantially better than the case which the plaintiff has against the driver of the vehicle. He still has capacity to pursue that claim, and there is undoubted prejudice, in my opinion, to the Commissioner of Main Road in allowing this case to go forward against it.
As to the strength of the case, I am guided by the decision of Malcolm CJ in Hughes at [39] and [40] which was followed in the Matheson case at [49]. I am also guided by Hughes at [66] following Western Australia v Watson [1990] WAR 248:
"Mere proof of default followed by injury does not show that the default caused the injury. The question is, did the defendant's breach materially cause the injury? The contribution is material if it is shown on the evidence not to have been negligible."
If we look at that in the facts of this case, it is a matter of speculation whether the absence of a stop sign caused this plaintiff his injury and whether the absence of the stop sign was material in causing the injury or would have been a negligible cause, if anything, bearing in mind the evidence of the unknown independent person from the police file that the plaintiff passed her or him on the left side of that person's vehicle.
Looking also at March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, the next case referred to at [69] in Hughes' case, we can ask whether the absence of the stop sign or other traffic‑calming device was one of a number of conditions sufficient to produce the damage suffered by the plaintiff? Based on the evidence of the plaintiff's mother, it is really a matter of speculation.
I also note s 27A(2) Main Roads Act 1930 which provides for the local government being the responsible body for streets and roads, and I note that Murray J also refers to that in par 5 in the Matheson case in which he delineates the line of duties of each of the Main Roads Department and the Fremantle City Council.
Finally, I note the line of reasoning of Le Miere J in Perry v City of Armadale at [26] to [31], especially par 30, to the effect that although it is not essential for the applicant to show a prima facie case for liability, it is enough if the claim is not made mala fide, not merely speculative or absurd, but here I think that this is a speculative case. For that reason I cannot exercise a discretion to grant relief to the plaintiff and I must accordingly dismiss this application. I would propose that the plaintiff pay the defendant's costs of the application, to be taxed. I will hear argument as to that.
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