Nicole Leanne Vidovich (By her lawful Father and Next Friend Milenko Vidovich) v The Commissioner for Main Roads
[2002] WADC 162
•10 JUNE 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: NICOLE LEANNE VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH) -v- THE COMMISSIONER FOR MAIN ROADS & ANOR [2002] WADC 162
CORAM: YEATS DCJ
HEARD: 10 JUNE 2002
DELIVERED : Delivered Extemporaneously on 10 JUNE 2002 typed from tape and edited by Trial Judge
FILE NO/S: CIVO 104 of 2002
BETWEEN: NICOLE LEANNE VIDOVICH (By her lawful Father and Next Friend MILENKO VIDOVICH)
Plaintiff
AND
THE COMMISSIONER FOR MAIN ROADS
First DefendantTOWN OF KWINANA
Second Defendant
Catchwords:
Limitation of actions - Statutes of limitation - Local government - Action in tort - Limitation Act (1935), s 47A - Was delay in bringing action occasioned by mistake or reasonable cause - Material prejudice - Whether to grant leave to bring action with or without conditions - Leave granted
Legislation:
Limitation Act 1935
Result:
Leave granted
Representation:
Counsel:
Plaintiff: Mr G Droppert
First Defendant : Mr W G Spyker
Second Defendant : Mr J C W Skinner
Solicitors:
Plaintiff: Bradford & Co
First Defendant : Blake Dawson Waldron
Second Defendant : McLeods
Case(s) referred to in judgment(s):
Baker v Shire of Albany (1994) 14 WAR 46
Baker v Shire of Albany, unreported; DCt of WA; Library No 3751; 17 June 1993
Brody v Singleton Shire Council (2001) 75 ALJR 992
Matheson v Commissioner of Main Roads [2001] WASCA 402
Case(s) also cited:
Hughes v Minister for Health [1999] WASCA 131
YEATS DCJ: This is an application by the plaintiff pursuant to the provisions of section 47A of the Limitation Act 1935 seeking leave to commence proceedings against the first and second defendants. The leave is being sought at the final hearing today, 10 June 2002. The six year limitation expires tomorrow, 11 June 2002. The claim is for personal injuries suffered in a motor vehicle accident at the intersection of Abercrombie Road and Anketell Road in Hope Valley on 12 June 1996.
The plaintiff's cause of action relates to the design of the intersection and the positioning of what is referred to as a mound of soil. The plaintiff's case is that as she approached along Abercrombie Road an intersection with Anketell Road a mound of soil was in place so that her view was obstructed. She was facing a give way sign and she alleges that it formed a virtual trap. Her case was that as she proceeded, because of the mound of earth, her vision was obstructed and a collision resulted.
The plaintiff gives further affidavit evidence, and I accept it, that some four months after this accident a stop sign replaced the give way sign. I should also note that the road itself, that is, Anketell Road, had been upgraded and "launched" earlier in 1996. It was, therefore, a road and an intersection that had only relatively recently opened at the time of the accident.
The plaintiff was very seriously injured including serious permanent brain damage. She was hospitalised ‑ and until 2001 ‑ was institutionalised. Her next friend, her father, did consult solicitors, and I am not told when that was done. He was advised by those solicitors that an injury claim would not be successful against the other driver. He was advised that there was no liability on the part of the Main Roads Department and that the matter was not worth proceeding with. For these reasons he ceased instructions to the solicitors and took no further action. We do not know when that happened but it is known that his daughter left institutional care in about April of 2001 and about a year after that the next friend, who indicated that he had been uncomfortable with the advice over the intervening years, consulted the present solicitors.
They wasted no time. The following day a letter was sent to the first defendant notifying them, in accordance with the Limitation Act, and indicating that leave would be sought to bring an action against them and inviting them to waive the requirements of the Limitation Act. The first defendant declined to do so and an affidavit of a Mr Robinson was filed on behalf of the first defendant on 31 May 2002 and the matter came on for hearing before me on 6 June 2002. In that affidavit filed on 31 May 2002 the plaintiff learned that the defendant claimed that the intersection involved was not a main road, that both Anketell and Abercrombie Roads were under the care and control of the Town of Kwinana and that the defendant's only responsibility at that date was for signage. Attached to that affidavit were detailed plans of the intersection as it was at the time of the accident and a detailed plan of the intersection as it has been altered. The alterations have moved Anketell Road both to the east and to the west of the intersection. There was about a 50 metre offset in Anketell Road at the intersection at the time of the accident. The roads now meet in a roundabout.
Having received Mr Robinson's affidavit the plaintiff immediately contacted the second defendant, the Town of Kwinana. They were notified on 4 June 2002, very close to the date on which the cause of action would be time-barred. At the first hearing of this matter on 6 June 2002 I considered the position of the Town of Kwinana and I gave leave to amend the chamber summons so that the Town of Kwinana became the second defendant. I have been asked today to review that decision and I decline to do so.
Section 47A(3)(c)
The Town of Kwinana relies on the provisions of s 47A(3)(c) which provides that 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 Town of Kwinana relies on Baker v Shire of Albany (1994) 14 WAR 46 as authority for the proposition that no leave can be granted to foreshorten that requirement of 14 days' notice. Reliance is placed on what was said by the Full Court in the judgment of Kennedy J at 53:
"The Limitation Act and the Local Government Act, in the specified circumstances, each provides for leave being granted to bring an action after the expiration of one year, notwithstanding non‑compliance with the requirements for the giving of notice, except, in the case of the Limitation Act, the notice required under 47A(3)(c).
In the judgment appealed from in Baker's case, Keall DCJ held in Baker v Shire of Albany (unreported; DCt of WA; Library No 3751; delivered 17 June 1993), that the application was incompetent because of a failure to give notice as required by s 47A(3)(c) and the learned Judge accepted the defendant's counsel's submission that there is no power to dispense with that requirement.
It is submitted to me that I have no power to dispense with that requirement and therefore the Town of Kwinana cannot be joined in this matter. I do not accept that submission. I do not accept that the wording of s 47A(3)(c) would lead one to the view that it is a substantive provision from which there could be no abbreviation of the time requirement and that time could not be foreshortened if it was necessary in a particular case to do justice. Further, I do not believe that what was referred to me and what I have quoted from Baker's case is a ruling by the Full Court. If it were I would of course follow it, but, it seems to me that in Baker's case the Court merely recited the requirements of the Act and did not make a finding. That is borne out by the fact that in Baker's case the Full Court determined that the Limitation Act provisions did not apply. They made no findings about the provisions of the Limitation Act. Their decision was that s 660 of the Local Government Act applied, not the Limitation Act.
I am also encouraged in my view by pars 15 and 16 of the decision of the Full Court in Matheson v Commissioner of Main Roads [2001] WASCA 402. Murray J, (Scott, Steytler, Parker and Einfeld JJ agreeing) said at [15]:
"… 14 days' notice of that application and of the grounds on which it is to be made are to be given to the prospective defendant. In this case that requirement was not complied with, the originating summons by which the application was made apparently not being filed and served until 12 October 2000, a mere four days before the six‑year period was due to expire.
No point was taken about this and the cooperation of the District Court was also obtained to have the application dealt with expeditiously."
The first defendant and the Town of Kwinana submit that Murray J is in error. If he is in error about whether there was a breach of the 14‑day notice requirement I cannot look behind that error. The important thing he has said is that he believed the requirement had been breached. It did not mean that the plaintiff could not proceed. I consider Matheson's case is authority that entitles me to proceed, despite the lack of 14 days' notice in this case, and I propose to do so.
Background
At today's hearing the second defendant appeared, put in an outline of submissions and tendered an affidavit of Mr Kumar Vadivale sworn 10 June 2002, the manager of engineering services for the Town of Kwinana who deposed to a number of matters relating to this accident. Mr Vadivale came upon the scene of the accident shortly after it occurred. He deposed to the fact that he was unable to find in the town's records volume 1 of the files related to the intersection of Anketell and Abercrombie Roads. He was able to locate volumes 2, 3 and 4 which cover the periods from 27 July 1995 onwards to the present time. In his affidavit Mr Vadivale gave an account of the history of the Anketell Road project, as he calls it. As he was involved with the Town of Kwinana at that time, I rely on his statement of the history.
Mr Vadivale said Alcoa of Australia owned a large parcel of land situated between Rockingham Road and the Kwinana Freeway. Hope Valley Road ran through the middle of Alcoa's land, joining Rockingham Road and the Kwinana Freeway. Alcoa wished to develop its land and in order to do so wished to close Hope Valley Road and replace it with a new road on the southern boundary of Alcoa's land joining Rockingham Road and the Kwinana Freeway which would later be named Abercrombie Road. Alcoa engaged engineers G.B. Hill and Partners to design Abercrombie Road, including the intersection. Main Roads approved G.B. Hill's design as complying with all relative requirements and standards. Alcoa then approached the Town of Kwinana regarding the project as Hope Valley Road was a local road and Abercrombie Road was proposed to be a local road under the care, control and management of the town. The town agreed to Alcoa's proposal. G.B. Hill then finalised the design of Abercrombie Road and the intersection in conjunction with Main Roads. Main Roads was responsible for the approval of the regulatory signage and road markings at the intersection. The construction of Anketell Road, including the intersection, was funded entirely by Alcoa and Main Roads. The construction of the intersection was carried out in accordance with the design prepared by G.B. Hill and approved by Main Roads. The town's involvement in the project was only a supervisory role during the construction of Anketell Road and the intersection at the request of Alcoa and Main Roads as Anketell Road would be a local road once constructed.
In his affidavit Mr Vadivale sets out the number of accidents that occurred at the intersection between March of 1996 and December of 1998; the area qualified for a black spot program and eventually a roundabout was built.
All counsel have agreed that in considering the application there are three questions that need be considered and those are conveniently set out in the judgment of Murray J in Matheson. The three issues are: firstly, was the delay in bringing the action occasioned by mistake or any other reasonable cause? secondly, in the alternative, was it established that either prospective defendant was not materially prejudiced in his defence or otherwise by the delay? thirdly, if either of the above conditions was established, would it be just to grant leave to bring the action with or without conditions?
Mistake or any other reasonable cause
I am aware that I am dealing with questions related to two defendants and they cannot be looked at in the same way because the Town of Kwinana received notice much later than the notice given to the first defendant. It is common to both of these applications that the earlier solicitor's advice to the plaintiff's father appears to have been mistaken. I do not have a copy of that advice, assuming the advice was in writing. I accept that I do not know exactly what the advice was. There have been changes in the law. At the time of this accident there was a rule of the common law related to misfeasance and nonfeasance governing the liability of road authorities. That rule was changed by the High Court in the case of Brody v Singleton Shire Council (2001) 75 ALJR 992, when the High Court held that the common law governed the liability of road authorities and that the rules of the common law governed the approach the Court would take on the duty of care and breach of that duty. The distinction between the misfeasance and nonfeasance was abandoned. That may not be relevant here because it is difficult for me to see, in the circumstances of the plaintiff's case, that it could have been a case of nonfeasance, given that her allegation is that the actual design, including the mound of soil left in place, created a trap for a person travelling in her direction. Because of the advice, the plaintiff's next friend did not proceed at that time.
I accept that the law establishes that I must look at the whole period of delay, that is, from when the cause of action accrued until the time when the notice was given to the first defendant in May 2002. This case can be distinguished from Matheson's case where the Full Court held that no-one had ever thought of suing the Main Roads department and City of Fremantle until very late in the plaintiff's action against the defendant driver. In this case it seems to have been the case that there was no action against the other driver, although I do not know that as a fact. From the investigations done by the next friend it would seem that he was pursuing the first defendant from the beginning and it was the erroneous advice of the first solicitor that stopped him from giving notice and bringing the claim.
I do not know whether that advice was given during the first 12 months. On behalf of the first defendant it is suggested that it would not be reasonable to grant leave over the whole five year period based on this advice from a solicitor when the next friend admitted that he was uncomfortable with that advice. He suggested that a reasonable next friend in that position would have pursued other means much earlier. I think that asks too much of a non-legally trained person. I accept that he was given advice and I accept that that, on its face, would appear to be mistaken advice that there was no liability on the part of the Main Roads Department. If that was wrong, then it seems to me that the plaintiff can rely on that mistake for the delay in bringing his case against the first defendant.
The situation is quite different for the second defendant. As the second defendant rightly submits, there does not seem to have been any interest in it. The interest of the plaintiff has been in an action against the Main Roads Department or the Commissioner for Main Roads, and the second defendant submits that there can be no mistake unless there is some advertence to the matter. In other words the plaintiff would have had to have considered the Town of Kwinana as a possible defendant and have made a mistake and decided wrongly not to proceed against them.
I accept that submission on behalf of the second defendant and in their case I turn to look at the question of reasonable cause. In the case of the second defendant, the plaintiff was at all times expecting to have leave granted in terms of the Commissioner of Main Roads, and I have already given my reasons for saying that there was a mistake involved in that. It seems to me that the affidavits before me show that the plaintiff could not have been aware of the role of the Town of Kwinana until the affidavit of Mr Robinson was received at the end of May. It is only through that affidavit that the plaintiff became aware that it had to proceed against the Town of Kwinana. In those circumstances it seems to me that there was a reasonable cause for the delay in the case of the Town of Kwinana arising from a combination of the change in solicitor's advice and the new facts that came forward when Mr Robinson swore his affidavit on behalf of the first defendant.
Material prejudice
It is of considerable importance to consider the second question as to whether there was any material prejudice. I start by saying that when nearly six years have gone by there will always be some prejudice. Every witness including the plaintiff's witnesses will not remember details of events. That sort of prejudice is natural whenever there is delay. In some ways that creates more difficulties for a plaintiff than for a defendant because the burden of proof rests with the plaintiff. In looking at material prejudice to the defence of the defendants I need to consider very closely the position they are placed in by what has gone on since the time of the accident.
The first defendant set out quite clearly the matters that he claimed amounted to material prejudice against him in par 16 of his affidavit. He suggests that they are now unable to precisely identify the location of the plaintiff's vehicle prior to the accident. I could not fully understand what that meant but in his submissions Mr Spyker has suggested that if this action had been taken or if they had had notice closer to the time - and this applies really to both defendants - they would have sent an expert to the site as it was at the time of the accident and had their experts take photographs and measurements so that they could determine exactly what the visibility was for a car in the position of the plaintiff's vehicle as it approached the give way sign at the intersection. That is no longer possible because the roads have been realigned and the intersection has been made into a roundabout.
I am told, however, that the mound remains there. It is evident from a combination of the plaintiff's affidavit, the plaintiff's next friend's affidavit and the affidavit of Mr Robinson that there are colour photographs of the intersection as it was at the time of the accident. I accept for the purpose of this application the submission by counsel for the plaintiff that we live in a time when computer models can be made of almost anything. Computer modelling based on the coloured photographs and the detailed map of the site should enable an expert to make a model of the view a car would have as it approached the intersection from the direction the plaintiff approached it. Therefore, it does not seem to me that the first ground claimed by the first defendant raises a matter that amounts to material prejudice.
The first defendant also submits that they are unable to reconstruct the accident scene and the position of the soil mount. Computer modelling would resolve that as well.
In the affidavit received today on behalf of the second defendant, Mr Vadivale specified a number of matters that he says amount to material prejudice. First of all, at par 28 he refers to the fact that its file of documents for the period prior to July 1995 was not located and suggests that that may be because it was destroyed when the time limits had passed. I accept in that regard the submissions made to me by the plaintiff's solicitors. The fact there are in the hands of the Town of Kwinana the files from 27 July 1995 onward would seem to me to provide enough information to overcome the earlier file being lost. One question is who was responsible for what was done and the answer, I would think, would have to emerge from the files that were created during the time the work was being done.
The second matter of material prejudice raised by the second defendant is: "… the Town's defence will substantially involve reference to the action of other parties in terms of the responsibility for the creation of the Intersection and the 'mound'. Due to including Alcoa, GB Hill and Main Roads and time limitations the Town has not been able to make enquiries …" He mentions that officers from Main Roads are no longer with Main Roads and G.B. Hill, the engineers, no longer exist as a company. I accept Mr Vadivale's affidavit evidence to that effect, but it does not seem to me that that is the kind of material prejudice that will prejudice the second defendant in its defence. The fact is that it has files of exactly what went on at the time. If they are dealing with Main Roads, even if the same officers are not there, surely there are Main Roads files covering the same period. One cannot see that the movement of officers will give rise to any material prejudice. Therefore I see no material prejudice arising from the matters in par 29. Mr Vadivale says further:
"…due to time limitations the Town has also not been able to ascertain the existence of investigation reports etc regarding Ms Vidovich's accident, the identity of the driver of the other vehicle, whether there were any other witnesses."
I accept that it will be crucial to the proposed action to determine how the accident occurred and the memories of witnesses will naturally have faded. However, I am satisfied on the submissions made to me and the evidence in this case that there are files with the Insurance Commission of Western Australia related to this accident. Because of the serious injuries to the plaintiff I have no doubt that police also have records of this accident and that names of witnesses will be forthcoming from those sources, so I see no material prejudice arising from this concern.
The fourth and final matter is referred to in par 31 of Mr Vadivale's affidavit. He says that they are no longer in a position to identify precisely the path of the vehicle of Mrs Vidovich. I have already given my reasons for saying that there is information sufficient for there to be a "mock-up" done by a computerised model that could produce this. Therefore I see no material prejudice in its defence so far as the Town of Kwinana is concerned in that matter.
It seems to me that the Town of Kwinana's involvement in this is peripheral and relates to its relationship with the first defendant. It seems to me that the files the second defendant has, will put them in a position where they are able to adequately defend themselves.
For those reasons I am satisfied that there is no material prejudice to the second defendant despite the very late notice it received. I also note that when one looks at the newspaper articles it is clear that members of the Town of Kwinana Council were the ones who were urging the Main Roads Department to look after the problems at this intersection and I cannot believe that the Town of Kwinana does not have records about the accident and about the intersection generally.
The justice of the case
Having made those findings I am now required to look at the third question, would it be just to grant leave to bring the action with or without conditions? In considering the exercise of this discretion everyone concurs that I should again look at material prejudice to the first defendant and second defendant. I must look carefully at the strength of the cause of action and I must consider the prejudice to the plaintiff. I must consider whether the plaintiff has a real cause of action and whether she has a prima facie case. I must assess the strength of her case.
On the face of it this case is unlike Hughes' case and Matheson's case because in each of those cases the plaintiff had a cause of action to pursue without leave being granted. I do not know if the plaintiff has a cause of action against Alcoa or against the other driver in this case but on the face of it it does not appear that she does. In this case the plaintiff has suffered extremely serious permanent brain injury and without being granted leave, she would have no cause of action for damages.
It was suggested, as against the second defendant her case is wholly speculative, but when one looks at that for a moment one realises that the first defendant may have matters as against the second defendant which it requires to be litigated. If leave is to be granted it must be leave that allows the whole case to be litigated and not simply part of it. That would be unfair to the first defendant.
I do not consider the plaintiff's case to be speculative. I accept that with her brain injury and her loss of memory she is going to have troubles as a witness. I have no affidavit from her and no information other than the doctor's report from last year. Her father, the next friend, speaks with her. I do not know how far he is successful in communication or whether she will be able to give evidence. This is not a situation where I should speculate on the strength of the case. I should look at whether there is a prima facie case and whether the justice of the case requires that it should be litigated.
In this case I believe that the severe prejudice to the plaintiff if the grant of leave is refused should be balanced against what I consider to be relatively slight prejudice to the first and second defendants, no material prejudice to the defendants and the fact that I consider the plaintiff has a prima facie case. For these reasons the justice of the case requires that leave be granted.
For these reasons I grant leave to the plaintiff pursuant to s 47A of the Limitation Act 1935 to commence proceedings against the first and second defendants.
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