Moore v Commissioner of Main Roads

[2008] WADC 122

MOORE -v- COMMISSIONER OF MAIN ROADS & ANOR [2008] WADC 122

Link to Appeal :

[2009] WASCA 64

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 122
Case No:	CIV:434/2003	Heard:	25 JULY 2008
Coram:	SCOTT DCJ	Delivered:	2/09/08
Location:	PERTH
No of pages:	16	Judgment Part:	1 of 1
Result:	Amendment to statement of claim allowed in part
PDF Version

Parties:	KERRIN AYMAN MOORE COMMISSIONER OF MAIN ROADS BORAL CONTRACTING PTY LTD CHAMPIONS CORPORATION PTY LTD t/as JRMS SERVICES (ACN 075 331 547) ROBIN D TRIPE & VIVIAN W TRIPE t/as R & V TRIPE PARTNERS
Catchwords:	Practice and procedure Amendment of consolidated statement of claim Duty of care Non­delegable duty of care Contracted and subcontracted work
Legislation:	Nil
Case References:	Brodie v Singleton Shire Council (2001) 206 CLR 512 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hall v Adventure Training Systems Pty Ltd [2007] NSWSC 817 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Leichardt Municipal (Council v Montgomery (2007) 230 CLR 22 Niven v Grant (1903) 29 VLR 102 Packard v Transport Trading Agency Co Ltd & Weir (1912) 14 WALR 191 Pancontinental Mining Ltd v Posgold Investments Pty Ltd & Ors (1994) 121 ALR 405 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors Hurstville [1971] 1 NSWLR 472 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : MOORE -v- COMMISSIONER OF MAIN ROADS & ANOR [2008] WADC 122 CORAM : SCOTT DCJ HEARD : 25 JULY 2008 DELIVERED : 2 SEPTEMBER 2008 FILE NO/S : CIV 434 of 2003 BETWEEN : KERRIN AYMAN MOORE

Plaintiff

AND

COMMISSIONER OF MAIN ROADS
First Defendant

BORAL CONTRACTING PTY LTD
Second Defendant

FILE NO/S : CIV 1369 of 2006 BETWEEN : KERRIN AYMAN MOORE

Plaintiff

AND

CHAMPIONS CORPORATION PTY LTD t/as JRMS SERVICES (ACN 075 331 547)
First Defendant

ROBIN D TRIPE & VIVIAN W TRIPE t/as R & V TRIPE PARTNERS
Second Defendant

(Page 2)

Catchwords:

Practice and procedure - Amendment of consolidated statement of claim - Duty of care - Non­delegable duty of care - Contracted and subcontracted work

Legislation:

Nil

Result:

Amendment to statement of claim allowed in part

Representation:

CIV 434 of 2003

Counsel:

Plaintiff : Mr K H M Wong
First Defendant : Mr G Porter
Second Defendant : Mr P G McGowan

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Talbot Olivier
Second Defendant : DLA Phillips Fox

CIV 1369 of 2006

Counsel:

Plaintiff : Mr K H M Wong
First Defendant : Mr J E Sexton QC
Second Defendant : Mr H M O'Sullivan

(Page 3)

Solicitors:

Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Dibbs Abbott Stillman
Second Defendant : SRB Legal

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

Brodie v Singleton Shire Council (2001) 206 CLR 512
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hall v Adventure Training Systems Pty Ltd [2007] NSWSC 817
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Leichardt Municipal (Council v Montgomery (2007) 230 CLR 22
Niven v Grant (1903) 29 VLR 102
Packard v Transport Trading Agency Co Ltd & Weir (1912) 14 WALR 191
Pancontinental Mining Ltd v Posgold Investments Pty Ltd & Ors (1994) 121 ALR 405
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors Hurstville [1971] 1 NSWLR 472
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161

(Page 4)

SCOTT DCJ:

Background

1 These two actions 434 of 2003 and 1369 of 2006 are consolidated actions. In 434 of 2003 Kerrin Aymon Moore ("Moore") is the plaintiff, Commissioner of Main Roads ("Main Roads") is the first defendant and Boral Contracting Pty Ltd ("Boral") is the second defendant/third party. In 1369 of 2006 Moore is the plaintiff, Champions Corporation Pty Ltd ("Champions") is the first defendant and Robin Tripe and Vivian Tripe ("Tripe") are the second defendants.

2 The history pertaining to the statement of claim in the consolidated action ("statement of claim") is, relevantly, as follows:

(a) on 15 May 2007 the statement of claim was filed;

(b) on 19 July 2007 the plaintiff filed a minute of proposed amended statement of claim in respect to which he sought leave. Deputy Registrar Hewitt refused leave to amend in accordance with that minute, on 13 September 2007;

(c) on 8 November 2007 the plaintiff filed a further minute of proposed amended statement of claim and sought leave to amend in accordance with that minute. On 29 November 2007 Deputy Registrar Hewitt refused leave to amend in accordance with that minute;

(d) the plaintiff appealed against the decision of the learned Deputy Registrar made 29 November 2007 and the appeal came on for hearing before Judge Goetze on 4 April 2008 whereupon his Honour gave the plaintiff leave to file a further amended statement of claim by 18 April 2008;

(e) on 14 May 2008 the plaintiff filed a minute of further amended statement of claim and the matter came before Judge Keen on 19 May 2008. At that time his Honour dismissed the appeal from the decision of Deputy Registrar Hewitt and ordered the plaintiff to file and serve any application to amend the statement of claim or file a substituted statement of claim together with a minute, within 14 days; and

(f) the plaintiff then made application for leave to which the present minute of proposed amended statement of claim dated 19 May 2008 ("Proposed Statement of Claim") refers.

(Page 5)

3 Until the present application Boral has been the sole objector, in a formal sense, to the endeavours by the plaintiff to amend the statement of claim. However on this application each of Champions and Tripe are, in addition to Boral, opposed to the amended pleading proposed by the plaintiff.

Nature of plaintiff's claim

4 The plaintiff alleges that on or about 2 September 2000, at approximately 30 kilometres of the Wittenoom town site, he was driving a vehicle which lost control, struck the embankment and rolled over resulting in him being severely injured.

5 In the Proposed Statement of Claim the plaintiff pleads that:

(a) Main Roads was responsible for the maintenance, repair and proper upkeep of the road of which the section upon which the accident occurred ("the section of road") was part;

(b) Boral was engaged by Main Roads to maintain the road including the section of the road in accordance with the terms of a written contract between it and Main Roads ("Main Roads-Boral contract");

(c) Boral subcontracted "some grading works" in respect of the Main Roads-Boral contract to Champions pursuant to an oral contract ("Boral-Champions subcontract"); and

(d) Champions orally contracted with Tripe to "undertake works" in respect of the Main Roads-Boral contract and/or the Boral-Champions contract.

6 The parties other than Main Roads filed extensive outlines of submissions and lists of authorities with respect to this application.

7 Essentially the objections of Boral, Champions and Tripe to the claims against them in the Proposed Statement of Claim are that the pleas fail to disclose a reasonable cause of action and/or are embarrassing.

Principles – no reasonable cause of action

8 The relevant principles are as follows:

(a) the rule is intended to apply only to cases which are really not arguable (Packard v Transport Trading Agency Co Ltd & Weir (1912) 14 WALR 191 at 195);

(Page 6)

(b) on the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable (Niven v Grant (1903) 29 VLR 102 at 106);

(c) great care must be exercised to ensure that the plaintiff is not improperly deprived of his opportunity for the trial of his case (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130);

(d) as a general rule a plaintiff is entitled as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out (Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984);

(e) a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie (Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373); and

(f) the question for the court is whether it would be open to the plaintiff upon the pleading to prove facts at the trial which would constitute a cause of action (Pancontinental Mining Ltd v PosgoldInvestments Pty Ltd & Ors (1994) 121 ALR 405 at 414).

Principles – embarrass or delay the fair trial

9 Essentially:

(a) material will not be struck out merely because it is unnecessary; and

(b) unnecessary material may be struck out if it will cause delay or embarrassment (Ron Hodgson (Trading) Pty Ltd v Belvedere Motors Hurstville [1971] 1 NSWLR 472 at 477).

Generally

10 The material facts relied on to ground a cause of action should appear with clarity and appropriate particularity on the face of the

(Page 7)

pleadings. The failure to plead material facts cannot be cured by the provision of particulars.

11 Objections to pleadings should not be made lightly. In Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161 his Honour the Chief Justice said:

"… I would observe that both I and the other members of this Court are firmly of the view that interlocutory disputes of this kind [application to strike out portions of a pleading] must be actively discouraged. In many cases, interlocutory disputes, particularly disputes relating to pleading issues, consume very substantial amounts of time and expense on the part of both the parties and the Court. In many cases, the time and expense involved in the consideration and resolution of the interlocutory dispute is entirely disproportionate to its significance to the just and effective resolution of the case as a whole by mediation or trial. … In very general terms, interlocutory disputes of this kind will only be entertained by the Court if the time and expense involved in their resolution is proportionate to the significance of the dispute to the just and effective resolution of the case."

Claim against Boral

12 The claim proposed to be pleaded by the plaintiff against Boral is as follows:

(a) pursuant to the terms of the Main Roads-Boral contract Boral agreed to:

(i) provide to Main Roads road maintenance on a road network in the Pilbara and mid-west regions of Western Australia which included the section of road;

(ii) carry out maintenance grading of the road including the section of road in accordance with the relevant specifications;

(iii) grade the road including the section of road to such a standard as would achieve a smooth trafficable surface;

(iv) grade the road including the section of road so as to establish the surface and cross-fall and camber;

(par 5.1.1)

(Page 8)

(b) it was a term of the Main Roads-Boral contract that Boral would perform its contractual obligations in accordance with its (Boral's) quality plan pursuant to which Boral undertook to inspect the works conducted, during and after the works process, so as to ensure that the works conducted under the contract complied with the specification (par 5.1.2);

(c) Boral was aware or ought reasonably to have been aware that the performance of works by or under Boral was so as to eliminate foreseeable hazards to road users arising by reason of inadequate grading cross-fall and camber (par 5.1.3);

(d) by reason of Boral's assumption of contractual responsibility pleaded in pars 5.1.1 and 5.1.2 as well as the matters pleaded in par 5.1.3 Boral owed a duty of care, alternatively a non-delegable duty of care, to reasonably ensure that the road including the section of road was in a state of repair or condition such that its use would not endanger the safety of all drivers (including the plaintiff) using the same; and

(e) the plaintiff does not plead that Boral was an occupier of the road including the section of road.

Claim against Champions

13 The plaintiff pleads that pursuant to the Boral-Champions subcontract Boral subcontracted with Champions to undertake "some grading works" in respect of the Main Roads-Boral contract (par 7.1) and that Champions was at all material times an occupier of the road including the section of road.

14 The plaintiff pleads that Champions owed to the plaintiff the same duty of care as is pleaded against Boral.

Claim against Tripe

15 The plaintiff pleads that Champions orally contracted with Tripe to "undertake works in respect of the Main Roads-Boral contract and/or the Boral-Champions contract" and that Tripe was at all material times an occupier of the road including the section of road. The plaintiff pleads that Tripe owed to the plaintiff the same duty of care as that pleaded to be owed by Champions and Boral.

(Page 9)

Condition of section of road

16 The plaintiff then pleads that the section of road had at the time of the accident:

1. A profuse accumulation of loose coarse material.

2. No noticeable camber.

3. Been used by an appreciable volume of traffic with consequent loss by attrition of a large amount of fine material on which the riding surface of gravel pavement depends for its integrity; and/or

4. a built up embankment of gravel by its side which was not cleared.

Accident

17 The plaintiff pleads that as he drove his vehicle across the section of road the condition of that part of the road caused his vehicle to lose control as a result of which the vehicle struck the embankment, rolled over and the plaintiff was injured (par 9.3(d)).

18 The plaintiff pleads that the accident was caused by the negligence of Main Roads, Boral, Champions and/or Tripe, its servants or agents.

Boral

19 The particulars of negligence pleaded against Boral are that Boral:

(a) failed to ensure subcontractors engaged to maintain the road were adequately maintaining the road;

(b) failed to adequately supervise subcontractors who were engaged to maintain the road;

(c) failed to instruct subcontractors to remove the embankment of gravel by the side of the road;

(d) failed to ensure that the road had an adequate maintenance regime, and communicate deficiencies and problems with the road to Main Roads;

(e) failed to properly inspect work done by subcontractors to ensure that the grading undertaking provided a smooth trafficable surface;

(f) failed to organise the replenishing of fine material which had been lost by attrition;

(g) allowed the road to fall into the state of disrepair;

(Page 10)

(h) failed to place a warning sign in relation to loose or coarse gravel at the section where the texture of the road surface changed;

(i) failed to place a sign at the section of the road recommending the reduction of speed from the original speed limit due to the change in the nature of the road surface, and the presence of loose gravel, alternatively failed to close the road or a section of the road to traffic;

(j) failed to warn motorists using the road that the section of the road was in want for further maintenance or under maintenance and to drive with caution or at a slower speed;

(k) failed to exercise reasonable care in, or supervision over, the selection of Champions and/or Tripe as subcontractors; and

(l) failed to adequately supervise, inspect, direct and/or coordinate the activities of Champions and/or Tripe.

20 The plaintiff does not plead that Boral by the Boral-Champions subcontract, subcontracted all of the works for which it had a responsibility pursuant to the Main Roads-Boral contract to Champions. The plaintiff does not specify, as he should, what the term "some grading works" means (par 7.1). That may be a matter relevant to the extent of the work delegated to Champions and the extent to which any right or obligation was retained by Boral. However, by par 5.1.2 the plaintiff pleads an obligation on the part of Boral (pursuant to the Main Roads-Boral contract) to "inspect the works conducted during and after the works process so as to ensure that the works conducted under the contract complied with the specification". Arguably, in my view that obligation may continue to render Boral liable under that contract notwithstanding that it subcontracted all or part of the works for which it was responsible.

21 The first question which falls to be determined is whether the plaintiff has pleaded sufficient material facts to ground a cause of action that Boral owed to him a duty of care. To that end the obligation on the part of Boral to undertake any works with respect to the road and specifically the section of road arises pursuant to the terms of the Main Roads-Boral contract. Such a duty might be distinguished from the duty to road users which might be owed by a statutory authority having control over the maintenance and upkeep of roads.

22 Generally it is the case that the common law does not impose a duty of care on a party to protect another from the risk of harm unless that party has created the risk (Graham Barclay Oysters Pty Ltd v Ryan

(Page 11)

(2002) 211 CLR 540; [2002] HCA 54). In that case McHugh J said (at [81]):

"Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. … But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty."

23 Albeit with respect to the duties owed by statutory authorities, whether the relevant defendant was in a position of control over the source of the risk of harm or has a specific power to protect the plaintiff from danger are material issues (Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [39]; Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29; GrahamBarclay Oysters Pty Ltdv Ryan (supra) at [151].

24 It is arguable that Main Roads, in this case owed a duty of care to road users including the plaintiff. The question of subcontracting by Boral aside, having regard to Boral's obligations under the Main Roads-Boral contract and the fact that the road, including the section of road to be maintained under that contract was located in (relatively) isolated areas, I consider it arguable that Boral exercised some measure of control over the road including this section of road and that it owed a duty of care to undertake the works such that the road, including the section of road, would be maintained for the purposes of safe travel by road users including the plaintiff.

(Page 12)

25 This is so notwithstanding the fact that the plaintiff does not now assert in the proposed pleading that Boral was in occupation of the road and thereby the section of road.

26 The plaintiff then pleads that Boral entered into an oral subcontract with Champions. The question which then arises is whether any duty of care owed by Boral to the plaintiff was non-delegable. Whilst in Leichardt Municipal (Council v Montgomery (2007) 230 CLR 22) the High Court held that a statutory roads authority does not generally owe road users a non-delegable duty of care in respect of road works that is not to say that, notwithstanding the appointment of a contractor, an authority will retain no duty of care.

27 In Leichardt Gleeson CJ said at [22]:

"It is consistent with that statutory scheme to conclude that there is a duty in a roads authority to take reasonable care to prevent physical injury to a person such as the respondent from the carrying out of road works. It is also consistent with the statutory scheme to conclude that, if an independent contractor is engaged to perform such works, the roads authority remains under a 'personal' duty to take reasonable care to prevent such injury, and that such duty is not discharged merely by exercising care in the selection of the contractor. Reasonable care on the part of the roads authority may well involve a certain level of scrutiny of the contractor's plans and supervision of the contractor's activities."

28 Further Gleeson CJ in Leichardt left open the possibility that such a duty may be owed in certain situations by stating (at [18]) "Road works could in some circumstances involve an extra-hazardous activity." In that regard his Honour was referring to one of the established categories in which a duty of care may be owed.

29 In Hall v Adventure Training Systems Pty Ltd [2007] NSWSC 817 the court was there concerned with a contract by which Adventure Training Systems Pty Ltd was engaged by Transfield Services (Australia) Pty Ltd to undertake repairs to a training course at HMAS Sterling.

30 In that case (at [88]) the Judge said:

"It is also my view that Transfield owes a further duty to ensure that reasonable care was taken by any subcontractors they acquired. … The nature of the contract between Transfield and

(Page 13)

Adventure Training was one whereby Adventure Training would perform any required repairs to the course and to certify that the course was safe for use by participants. The nature of the work required under the contract left participants in a highly vulnerable position if the work was not properly carried out. … Notwithstanding the physical performance of the work by a subcontractor (in this case Adventure Training), Transfield was in a position whereby it had a duty to ensure that reasonable care was taken on the subcontracted work."

31 I am of the view that notwithstanding that Boral entered into a sub-contract with Champions there is arguably a retention of right or obligation on the part of Boral (par 5.1.2) to ensure that the works under the Main Roads-Boral contract were undertaken properly. In addition it is arguable that road works could involve extra-hazardous activity.

32 In the circumstances I consider that the plaintiff has, in the proposed statement of claim, pleaded a reasonable cause of action against Boral. In respect to the particulars of negligence pleaded against Boral, those particulars need to be consistent with the plea in par 5.2. To that end the particulars in 10.2(h)(i)(j) and (k) are not consistent with nor follow from the duty pleaded to ensure that the road including the section of road was in the state of repair or condition referred to in par 5.2. There would, in my view, need to be specific duties pleaded by the plaintiff in respect to which the breaches in these particulars were referable. Consequently, pars 10.2(h)(i)(j) and (k) are not allowed.

Claim against Champions

33 At par 7.2 the plaintiff pleads that by reason of Champions' occupation of the road (par 6(b)) and/or Champions assumption of contractual responsibility pleaded in par 7.1 Champions owed a duty of care to reasonably ensure that the road including the section of road was in a state of repair or condition such that its use would not endanger the safety of all drivers including the plaintiff using the same.

34 It is incumbent upon the plaintiff to plead the material facts which give rise to the plea in par 6(b) that Champions was at all material times an occupier of the road including the section of road. The plea presently proposed is a conclusion unsupported by any material facts.

35 It is also incumbent upon the plaintiff to plead details of the works for which Champions contracted and was thereby responsible. In that regard in par 7.1 the plaintiff pleads:

(Page 14)

"At all material times Boral orally subcontracted with Champions to undertake some grading works (my underlining) in respect of the Main Roads-Boral contract."

36 This proposed pleading is defective in that it does not:

(a) identify what is meant by "some grading works in respect of the Main Roads-Boral contract"; and

(b) specify whether the section of road (upon which it is alleged that the accident occurred) was a part of the road upon which Champions had an obligation to undertake works.

37 In par 7.1(b) of the Proposed Statement of Claim the plaintiff proposes that there be full particulars provided after discovery/interrogatories. Whilst that course may be appropriate to provide further particulars and even to supplement material facts already pleaded, there must first be a maintainable cause of action pleaded so as to give rise to an issue or issues in respect to which discovery and interrogatories may be sought.

38 In this case my view is that the plaintiff has failed in the Proposed Statement of Claim to plead material facts giving rise to a cause of action against Champions and as a consequence the proposal to provide further particulars upon interlocutory steps being taken is demonstrably deficient.

39 As a consequence I would not allow the proposed amendments in pars 6(b), 7.1 or 7.2. It follows that the particulars of negligence alleged against Champions and contained in par 10.3 can likewise not stand.

Claim against Tripe

40 The claim proposed against Tripe suffers from similar deficiencies to that with respect to Champions.

41 The plaintiff has failed to plead any material facts to ground the conclusion that Tripe was an occupier of the road. The unsupported plea in par 8(b) is not allowed.

42 In par 9.1 of the Proposed Statement of Claim the plaintiff proposes to plead:

"(a). At all material times Champions orally contracted with Tripe to undertake works in respect of the Main Roads-Boral contract and/or the Boral-Champions subcontract."

(Page 15)

43 To that end:

(a) the genesis of the work the subject of the subcontract to Tripe must be the work for which Champions contracted pursuant to the Boral-Champions contract;

(b) details of the work subcontracted by Boral to Champions is not identified in par 7.1 and from that plea it is impossible to discern the works for which Champions had a responsibility;

(c) that problem is then compounded by the plea proposed in par 9.1 in which reference is made to "works in respect of the Main Roads-Boral contract and/or the Boral-Champions contract". Pleaded in that manner it is impossible to discern the specific works which the plaintiff maintains were sub-contracted to Tripe.

44 In addition by par 9.1 the plaintiff has not identified the section of road as being part of the road upon which works, for which Tripe is responsible, are to have been undertaken. The failure to identify in the proposed pleading:

(i) the nature of the works to be undertaken by Tripe; and

(ii) whether the works to be undertaken by Tripe included the section of road

results in a failure on the part of the plaintiff to plead any material facts upon which the duty of care pleaded in par 9.2 is based. For the reasons to which I refer above, that deficiency cannot be cured by a claim that further particulars will be provided after discovery and/or interrogatories.

45 As a consequence the amendments proposed in pars 8(b), 9.1 and 9.2 will not be allowed. It follows that the particulars of negligence in par 10.4 cannot stand.

Leave to further amend

46 This statement of claim has had a long and unfortunate history. Having made a determination however that the plaintiff has pleaded an arguable cause of action against Boral I am prepared to allow the plaintiff leave to re-plead (against Boral) if the plaintiff wishes to rely upon the particulars presently proposed in par 10.2(h)(i)(j) and (k) of the Proposed Statement of Claim.

47 As to the claims against Champions and Tripe, because they have not until this application played an active role in any objections to the

(Page 16)

proposed amendments respectively made against them, I am prepared to grant to the plaintiff an opportunity to re-plea against those parties if he wishes.

48 I will hear counsel on the timeframe within which the plaintiff must submit a minute and make an application to re-plead. There should be a short timeframe within which the plaintiff must do so.

49 I will also hear counsel with respect to the issue of costs.