Mortimer v Shire of Kalamunda
[2007] WADC 8
•14 FEBRUARY 2007
MORTIMER -v- SHIRE OF KALAMUNDA [2007] WADC 8
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 8 | |
| Case No: | CIVO:171/2006 | 8 FEBRUARY 2007 | |
| Coram: | MULLER DCJ | 13/02/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | KEITH ROY MORTIMER SHIRE OF KALAMUNDA |
Catchwords: | Negligence Damages Application for leave to bring action under s 47 Limitation Act 1935 Reasonable cause for delay No prejudice to defendant Exercise of discretion |
Legislation: | Limitation Act 1935 |
Case References: | Carter v State Housing Commission, unreported; DCt of WA; Library No 4646; 5 September 1995 Lavita v Shire of Gingin [2005] WADC 93 Richardson v Kwentor Pty Ltd [2001] WADC 184 Brown v Minister for Education [2003] WADC 182 Brown v Minister for Education [2003] WASCA 204 Neale v Minister for Education, unreported; DCt of WA; Library No 4226; 10 November 1994 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MATTER : IN THE MATTER OF s 47A of the Limitation Act 1935 (as amended)
and
IN THE MATTER of an application by Keith Roy Mortimer for leave to bring an action against the Shire of Kalamunda
- Plaintiff
AND
SHIRE OF KALAMUNDA
Defendant
Catchwords:
Negligence - Damages - Application for leave to bring action under s 47 Limitation Act 1935 - Reasonable cause for delay - No prejudice to defendant - Exercise of discretion
(Page 2)
Legislation:
Limitation Act 1935
Result:
Application allowed
Representation:
Counsel:
Plaintiff : Mr K H M Wong
Defendant : Mr J Eller
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : John Eller
Case(s) referred to in judgment(s):
Carter v State Housing Commission, unreported; DCt of WA; Library No 4646; 5 September 1995
Lavita v Shire of Gingin [2005] WADC 93
Richardson v Kwentor Pty Ltd [2001] WADC 184
Case(s) also cited:
Brown v Minister for Education [2003] WADC 182
Brown v Minister for Education [2003] WASCA 204
Neale v Minister for Education, unreported; DCt of WA; Library No 4226; 10 November 1994
(Page 3)
1 MULLER DCJ: This is an application for leave to commence an action for damages for negligence against the defendant, the Shire of Kalamunda, in respect of an accident on 25 April 2003 when the plaintiff, who was then aged 15, lost control of his bicycle in Crystal Brook Road in Welshpool and fell into an unprotected concrete storm water drain and sustained quite serious injuries.
2 The application is necessary because of the plaintiff's failure to give notice within the time specified by s 47A of the Limitation Act 1935. This section prevents an action being brought against a public authority unless notice of the circumstances upon which the proposed action would be based is given to the prospective defendant as soon as practicable after the cause of action accrued and the action itself is commenced within 12 months from the date of the accident. The section authorises a court to give a prospective plaintiff leave to bring an action in circumstances where these conditions have not been complied with provided the Court considers the failure to give notice or the delay in brining the action was the result of mistake or some other reasonable cause or that the prospective defendant will not be materially prejudiced in his defence by the failure.
3 In his affidavit the plaintiff, who is now aged 18, said that following his injuries his father obtained legal advice and arranged for his lawyers to send the requisite notice to the Shire of Kalamunda. This was done on 22 January 2004. Nine months had elapsed since the date of the accident. I was told that liability was denied by the Shire of Kalamunda. After that nothing further appears to have been done by the plaintiff's father.
4 On 24 March 2006 the plaintiff turned 18. About 9 months later he brought this application.
5 Counsel for the Shire of Kalamunda has submitted that there was no reasonable cause for the delay by the plaintiff's father in giving the Shire the requisite statutory notice. In the alternative he submitted that the proposed defendant had been materially prejudiced by the 9 months delay. It was also submitted by Mr Eller that it would be unjust for the Court to exercise its discretion in the plaintiff's failure by granting leave to commence the action.
6 The first question I have to consider is whether the delay in giving notice of the accident was the result of mistake or any other reasonable cause. The plaintiff's affidavit sworn on 2 November 2006 is silent on the question of why there was a delay of 9 months before notice was given.
(Page 4)
- This is hardly surprising given that the plaintiff was only 15 at the time and relied on his father to do whatever had to be done. Counsel for the Shire Kalamunda has submitted this delay was unreasonable. It has been suggested that the absence of any explanation for the delay precludes any finding that the delay was brought about by some reasonable cause. I do not agree with that submission. When, as in this instance, the plaintiff was a minor and dependent upon his parents to take whatever steps were necessary I do not believe he should be penalised for his father's delay in giving the Shire of Kalamunda the notice required by the Act.
7 There is no affidavit from the plaintiff's father explaining why this delay occurred. However, I do not believe such an explanation would help. At the time the plaintiff was only aged 15. He could not be expected to have known what was required of him and obviously had to rely entirely on his father. The father's fault in failing to give notice in writing as soon as practicable after the accident cannot be imputed to the son. As a minor at the time the plaintiff was legally unable to bring an action on his own behalf. It was entirely reasonable, and legally necessary, for him to rely on his father as he did. His situation was analogous to that of a person whose solicitors fail to give notice within a reasonable time. In those circumstances the delay by the solicitors will not generally be imputed to the plaintiff. Carter v State Housing Commission, unreported; DCt of WA; Library No 4646; 5 September 1995. I am satisfied the plaintiff's legal dependence on his father constitutes a reasonable cause for the delay that occurred.
8 I turn now to the question of prejudice. Counsel for the Shire of Kalamunda has submitted that the delay of 9 months in giving notice precluded the Shire from carrying out any investigation of the accident site or to obtain expert evidence. While there must always be some prejudice caused by a delay of this kind I cannot see how in this case the prejudice is anything but minimal. The simple issue would seem to be whether the Shire of Kalamunda was negligent in leaving the storm water drain unfenced and uncovered. The Shire can hardly deny that it was unfenced and uncovered because the photographs before the Court show the location and condition of the storm water drain as it was presumably at the time of the accident. Other photographs show other sections of the drain elsewhere on the road which are fenced off. On the material before me I do not see this as a case where there can be any dispute as to where the accident occurred or the condition of the drain at the time. The excavation was clearly unfenced and unprotected and the only issue, on the material before this Court, seems to be whether the defendant ought reasonably to have foreseen the likelihood of a cyclist leaving the road
(Page 5)
- surface and falling into the unprotected drain. The Shire of Kalamunda has not really given any reasons why it may have been prejudiced by the delay other than to suggest a loss of opportunity to have the accident scene examined at an early stage by its own investigators and experts. While this may be a pertinent factor in other cases I do not see the relevance of it in this situation. An examination of the scene would not have revealed anything that did not already exist at the time of the accident. I am not satisfied that the Shire has been materially prejudiced by the plaintiff delay in giving notice.
9 The only remaining question is whether in the circumstances it is just to grant leave to bring the action. Leave will normally be refused if the Court is of the positive opinion that the plaintiff has no case although it appears to be enough if the claim is not mala fides or speculative or absurd. The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983. Counsel for the Shire submitted that the alleged failure by the plaintiff to provide particulars of his claim meant that the proposed action was nothing more than speculative. It was argued that the allegation that the act of falling off a bicycle at 3.00 am constitutes negligence on the part of the Shire is completely inadequate particularly as notice of the claim was given so late that investigations would have proved fruitless. I do not agree with this submission. In the written notice dated 22 January 2004 the plaintiff's solicitors explained that his injuries occurred when he fell off his bicycle into an uncovered and unfenced concrete lined stormwater drain and went on to say that, but for lack of a cover over or fencing around the drain, the plaintiff would not have suffered the injuries he did. I believe that was sufficient to properly inform the Shire of the basis of the plaintiff's claim. It is true that the delay of 9 months was unfortunate but, as I said earlier, the circumstances of this case are such that the delay could, at worst, only cause minimal prejudice to the Shire. At this stage it is not possible to consider the merits of the claim in any detail. I imagine the plaintiff will need to show that the failure by the Shire of Kalamunda to erect a barrier around the open drain constituted a breach of duty owed by the Shire to the plaintiff. The photographs before the Court show that the road had a concrete kerb and that the exposed drain was located approximately l metre from the kerb. In my view it is certainly arguable that the Shire ought reasonably to have foreseen the likelihood of a cyclist losing control of his bicycle and mounting the kerb at the point where the unprotected drain was located. In his submissions on this point counsel for the Shire relied on the decision of this Court in Lavita v Shire of Gingin [2005] WADC 93. In view of what I have already said, however, this is not a
(Page 6)
- case where I have been left to speculate as to what the negligence might be. There is sufficient material before the Court to determine what the duty of the proposed defendant might have been and to determine what the Shire should have done and did not do in relation to that particular duty. Richardson v Kwentor Pty Ltd [2001] WADC 184.
10 I am satisfied it would be just to exercise my discretion in favour of the plaintiff and to grant him leave to bring the proposed action against the defendant.
11 The application for leave to bring the proposed action against the defendant is allowed.
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