Moore v Commissioner of Main Roads
[2007] WADC 203
•29 NOVEMBER 2007
MOORE -v- COMMISSIONER OF MAIN ROADS & ANOR [2007] WADC 203
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 203 | |
| Case No: | CIV:434/2003 | 15 NOVEMBER 2007 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 28/11/07 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Amendment not allowed | ||
| PDF Version |
| Parties: | KERRIN AYMAN MOORE COMMISSIONER OF MAIN ROADS BORAL CONTRACTING PTY LTD |
Catchwords: | Practice and Procedure Amendment of Statement of Claim Whether pleading of duty of care satisfactory |
Legislation: | Nil |
Case References: | Hall v Adventure Training Systems Pty Limited and Ors [2007] NSWSC 817 Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COMMISSIONER OF MAIN ROADS
First Defendant
BORAL CONTRACTING PTY LTD
Second Defendant/Third Party
Catchwords:
Practice and Procedure - Amendment of Statement of Claim - Whether pleading of duty of care satisfactory
Legislation:
Nil
(Page 2)
Result:
Amendment not allowed
Representation:
Counsel:
Plaintiff : Mr B Nugawella
First Defendant : No appearance
Second Defendant/Third Party : Mr P McGowan
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Not applicable
Second Defendant/Third Party : DLA Phillips Fox
Case(s) referred to in judgment(s):
Hall v Adventure Training Systems Pty Limited and Ors [2007] NSWSC 817
Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200
(Page 3)
1 DEPUTY REGISTRAR HEWITT: On 13 September 2007 I struck out the plaintiff's statement of claim and delivered written reasons for that decision.
2 The strike out order did not end the action and the plaintiff has now introduced an amended version of the statement of claim for the consideration of the Court.
3 The basic facts upon which the plaintiff's claim are set out in my judgment dated 13 September 2007. Briefly the plaintiff alleges that he was injured by virtue of an accident caused by the poor road surface on a road in which he was travelling. The road was under the control of the Main Roads Department and Boral Contracting Pty Ltd ("Boral") had entered a contract in regard to the upkeep of the road.
4 The original pleading was struck out on the basis of the authority of Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200. That case established that the duty of care owed by a road authority was not a non-delegable care. In my earlier decision I concluded that such duty of care as Boral might be obliged to observe had been delegated to it from the Commissioner of Main Roads and that there was no legal impediment to Boral in its turn further delegating that duty to another party.
5 Essentially the new pleading attempts to reiterate the proposition that such duty of care as was passed on to Boral by the Commissioner of Main Roads was not in its turn capable of being delegated to its own subcontractors. The pleading of negligence of failing to properly supervise subcontractors and so forth is in effect a pleading which implies the existence of a non-delegable duty of care. I take the view that the Leichhardt case clearly established that that proposition is not correct. In so far as Boral had accepted responsibility for the road, it had delegated that responsibility to its own subcontractors.
6 I therefore take the view that the pleading which is sought to be introduced suffers from the same problems in that respect as the original pleading and should not be permitted for the same reasons. A new innovation in the proposed amended pleading is the allegation that Boral was an occupier of the road. No material facts whatever are advanced to support that proposition. I am unable to see how the contract would constitute Boral an occupier unless it assumed physical occupation of the road pursuant to the contractual terms and that proposition is not pleaded.
(Page 4)
7 Counsel arguing the matter before me developed the proposition that notwithstanding the Leichhardt decision nonetheless the duties of care owed by Boral should be characterised as non-delegable. In that regard counsel relied on Hall v Adventure Training Systems Pty Limited and Ors [2007] NSWSC 817 the decision of a single Judge of the Supreme Court of New South Wales delivered on 2 August 2007 and certain aspects of the Leichhardt decision.
8 Since the Leichhardt decision is precisely concerned with a road authority and Hall's case is not, I take the view that the Leichhardt decision should be accepted as the correct statement of the law in this area. I therefore conclude that a road authority may delegate a duty of care and I likewise conclude that a party to whom a duty of care has been delegated by a road authority may in its turn delegate that duty. There is however within the case the proposition that a highway authority is required to act with reasonable care in appointing and supervising the work of an independent contract. Within the present pleading is the proposition that there has been a failure to observe that standard. The allegation is contained in paragraph 10.2(k) and (l) and identical provisions relate to the allegations against the subcontractors. The difficulty I have with the proposed pleading is that there is nothing whatever pleaded in the way of material facts to support the proposition that there was a failure to exercise reasonable care in the selection of and supervision of the subcontractor.
9 I take the view that the allegation is a proposition which is inserted because it is a requirement to found an action unsupported by particulars to give it meaning. The fact that the allegation is presented in identical terms against virtually every party to this action I think is telling.
10 At the end of the day I am left to decide whether there is sufficient in this present pleading to justify the plaintiff being able to continue to run the case. I said in my original decision "I would have thought it would have been axiomatic that a party would not owe a duty of care to undertake steps it had not contracted to perform unless those steps were a necessary adjunct to the safe performance of the steps it had agreed to perform". The contract between the Commissioner of Main Roads and Boral is so broadly pleaded as to be almost meaningless. I do not accept that Boral was under an open ended obligation to ensure the road surface upon which the plaintiff came to grief was in tip top condition at all times. I do not accept that the Commissioner of Main Roads accepted the responsibility to pay for that the level of performance. The pleading is silent as to precisely what Boral was required to do and when it was
(Page 5)
- required to do it and I think that a telling deficiency within the statement of claim.
11 It is suggested that these matters will emerge during the course of interlocutory processes as the action progresses. I do not regard interlocutory processes as the appropriate means by which a party can ascertain whether the case it has chosen to bring is in fact sustainable or is not. My conclusion is therefore that the proposed amended pleading does not address the problems which I perceived in the first version of the statement of claim and such amendments as have been included still fall short of presenting a proper case. I will therefore not permit the plaintiff to amend the statement of claim in terms of the minute which has been presented for my consideration.
2
1