Moore v Commissioner of Main Roads

[2007] WADC 153

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MOORE -v- COMMISSIONER OF MAIN ROADS & ANOR [2007] WADC 153

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   29 AUGUST 2007

DELIVERED          :   13 SEPTEMBER 2007

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/Third Party

Catchwords:

Practice and Procedure - Tortious claim based on contract between First and Second Defendants - Whether Second Defendant under a duty of care to Plaintiff.

Legislation:

Nil

Result:

Statement of Claim struck out

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):

Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200

1. DEPUTY REGISTRAR HEWITT: By chamber summons filed 19 July 2007 the second defendant has applied to strike out the plaintiff's statement of claim against it pursuant to O 20 r 19, 1A of the Rules of the Supreme Court.  That rule invests the court with the power to strike out a statement of claim when in the opinion of the court that statement of claim discloses no reasonable cause of action. 

2. In the present case the plaintiff was a driver of a motor vehicle travelling on a road running between Roebourne and Wittenoom.  The plaintiff alleges that by virtue of the poor condition of the road he lost control of his motor vehicle and suffered an accident and consequent injury.  By his pleading the plaintiff alleges that the first defendant, the Commissioner of Main Roads ("Main Roads"), was the occupier of the relevant road and responsible for its maintenance, repair and upkeep.  In par 5 of the statement of claim the plaintiff alleges that Main Roads contracted with the second defendant Boral Contracting Pty Ltd ("Boral") to maintain and upkeep the road.  It is not clear to me if it is intended by that pleading to establish some difference between the duties allegedly owed by Main Roads, i.e. for the maintenance, repair and proper upkeep of the roads and the contractual obligation undertaken by Boral to maintain and upkeep the road. 

3. In any event the pleading then proceeds to allege that Boral contracted with a further party, that is, Champions Corporation Pty Ltd ("Champions") to undertake works they had contracted to perform with Main Roads.  There was some discussion in the argument before me as to whether or not the pleading of Borals' contract with Champions referred to the entire obligation undertaken Borals under their contract with Main Roads or might be construed as only relating to a part of that obligation, there remaining some residue for which Boral retained primary responsibility. 

4. When one looks at the claim of negligence which is levelled against both Boral and Champions it is clear, save for one particular that they are identical.  The particular of difference is contained in par 10.2(g) which contains an allegation that Boral was negligent as follows:

   "Failed to ensure that it's tender for the road maintenance contract with Main Roads included work done to provide a smooth trafficable surface."

5. As I understand the process of tender, a party seeking a task to be undertaken by another identifies that task and invites quotes for the performance of the task.  It seems to me that the allegation contained in par 10.2(g) is wholly untenable and could not possibly be a matter upon which Boral was in breach of any duty of care to anybody.  From that I distil the proposition that in all relevant respects the allegations of negligence against Boral and Champions are identical and conclude that the pleading in par 7 of the statement of claim, properly interpreted, is that Boral contracted with Champions to undertake the whole of the contract Boral had formed with Main Roads.

6. The application to strike out the statement of claim is based upon the issue of whether or not Boral owed a duty of care to road users generally and to the plaintiff in particular.  In that regard, the defendant places reliance upon a recent decision of the High Court in Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200. That case establishes the proposition that the duty of care owed by a highway authority to road users is, in part at least, delegable. Although expressed in different ways in the different decisions all of the members of the bench agreed on that proposition. From that conclusion I now turn to the application of the principle in the case to the matter which is before me.

7. The duty of care upon which the plaintiff relies in its action against Boral arises from its contract with Main Roads.  The parameters of that contract are not explained at all within the statement of claim save that a contract existed and it was relevant to the process of maintenance and upkeep of the road. 

8. 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.  Unfortunately in this regard there is something of a vacuum in the statement of claim. 

9. The matter is however, capable of this analysis.  To the extent that any duty of care is alleged to have been owed by Boral to road users that duty of care, it seems to me, would have to have been delegated to it by Main Roads and would flow from the contract between Main Roads and Boral.  If, therefore, Main Roads may delegate a duty of care to Boral, which is the allegation upon which the plaintiff proceeds, why then is it not possible for Boral to likewise delegate its duty of care to a subsequent contractor? 

10. It seems to me that the answer to that question is self evident.  To the extent that Main Roads may delegate a responsibility to Boral.  Boral in its turn would be able to delegate that responsibility to another.  Of course, Boral would remain contractually bound to Main Roads and any shortfall of the performance of that other would be a matter for which it would be answerable to Main Roads, but in my opinion Boral by entering an arrangement of that kind divests itself of whatever delegated duty of care may have passed to it from Main Roads under the terms of the original contract. 

11. For those reasons I am of the view that the facts pleaded in the statement of claim disclose no duty of care owed by the second defendant to the plaintiff and as a consequence it is my decision that the statement of claim against it be struck out pursuant to O 20 r 19, 1A of the Rules of the Supreme Court.