| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RODRIGUEZ -v- THE WATER CORPORATION [2005] WADC 160 CORAM : SLEIGHT DCJ HEARD : 11 AUGUST 2005 DELIVERED : 19 AUGUST 2005 FILE NO/S : CIVO 116 of 2005 BETWEEN : FRANCISCO RODRIGUEZ Plaintiff
AND
THE WATER CORPORATION
Defendant
Catchwords: Section 47A of the Limitation Act1935 - Issue of whether defendant materially prejudiced by delay - Turns on its own facts
Legislation: Limitation Act 1935
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Mr L M Hall
Defendant : Mr L Chiat
Solicitors:
Plaintiff : Bradford & Co
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Baker v Shire of Albany (1994) 14 WAR 46
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie v Singleton Shire Council (2001) 206 CLR 512
Hughes v Minister for Health [1999] WASCA 131
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Case(s) also cited:
McLennan v McCallum (2003) 23 SR (WA) 45
State Energy Commission of Western Australia v Alcoa of Australia Limited (1996) 17 WAR 131
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1 SLEIGHT DCJ: The application in this matter by the plaintiff is an application under s 47A of the Limitation Act 1935, seeking leave to proceed against the defendant with an action claiming damages for personal injuries and disabilities suffered by the plaintiff in an accident on 15 November 2000 when the plaintiff alleges he fell after stepping into a hole on the grass verge outside his place of residence. It is alleged that this accident was caused by the negligence and breach of duty on the part of the defendant.
2 No draft writ or draft statement of claim was filed by the plaintiff in support of the application. 3 The plaintiff filed two affidavits in support of the application. An affidavit of the plaintiff's sworn on 26 May 2005 ("the plaintiff's affidavit") and an affidavit of Lian Michael Hall sworn 15 July 2005. 4 In par 4 of the plaintiff's affidavit, the plaintiff gives a very brief description of the accident that occurred. Paragraph 4 states as follows: "On 15 November 2000 I suffered injuries when I stepped into a round hole that was hidden from view. On suffering the accident I immediately examined what had caused me to fall and discovered a round inspection hole, the purpose for which I am unclear, but which had been obviously designed to have a cover, but which at the time had no cover at all." 5 The affidavit of Lian Michael Hall has annexed to it photocopies of photographs taken of the hole it is alleged the plaintiff stepped into. The affidavit also exhibits photocopies of photographs taken of the hole after a lid had been placed on it. 6 On 28 November 2000 the plaintiff wrote to the Kwinana Town Council drawing the Council's attention to the hole in the verge. The hole was described as being a "round four inch hole", "possibly a valve opening used for fire services". 7 The letter goes on to state that the plaintiff suffered a twisted left knee and consequently had to receive medical treatment. No notice of any intention to claim was given. 8 The plaintiff instructed solicitors Bradford & Co in January 2001. Subsequently the plaintiff's solicitors received a letter from the Town of Kwinana dated 18 January 2001 advising that the hole in question was under the "care and control of the Water Corporation".
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The letter indicated that the Shire's Principal Works Supervisor made the area safe and contacted the Water Corporation to inform the Water Corporation of such steps. 9 The plaintiff's solicitors did not write to the Water Corporation until 21 March 2002. No explanation for the delay has been given. The letter gave notice of an intention to claim. The letter stated inter alia as follows: "Our client will allege that you were under a duty to inspect and maintain this shut off valve and ensure that at all times the shut off valve remained in place. The breach of this duty has resulted in our client being unnecessarily injured and has resulted in our client requiring surgery to his left knee in October 2001. Our client will allege that you failed in your duty to inspect shut off valves on a regular basis. Further, he will allege that the plate that was fixed to this shut off valve cavity should have been constructed and fixed adequately to the shut off valve to ensure that it would not be easily or unnecessarily removed. Our client will also allege that there should have been some sort of warning to indicate to the plaintiff that the hole if uncovered, represented a danger to him and other passers by." 10 The letter asked that the matter be referred to the insurers so that Bradford & Co could communicate directly with them concerning the issue of liabilities. 11 The Water Corporation wrote to Bradford & Co on 6 May 2001 indicating that the Corporation was investigating the matter. The letter concluded as follows: "If there is any further information which your client can provide to assist the Corporation, this will be considered, however at this stage the Corporation has no other alternative but to reject your client's claim". 12 A further letter was written by the Water Corporation dated 2 September 2002 which stated as follows: "Thank you for the additional information provided from the Town of Kwinana. Unfortunately the Corporation is not in a position to attend an informal conference at this stage.
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13 I am informed by counsel for the plaintiff that the next communication was a letter from the plaintiff's solicitors to the Water Corporation on 21 October 2004 enquiring whether the defendant consented to bringing an action out of time. No medical reports were sent to the defendant until a medical report became available from a Dr Charles Russell-Smith dated 23 November 2004. 14 The plaintiff's affidavit annexed to it a copy of the medical report from Dr Charles Russell-Smith dated 23 November 2004. This medical report states as follows: "1. I first saw him on 16 November 2000. On examination there was some generalised swelling of the knee and tenderness over the lateral border of the patella. At review a week later there was still some generalised swelling, as it was possible to assess that the ligaments of the joint appeared stable. I saw him with regard to his knee specifically on the following dates: 16/11/2000, 20/11/00, 30/11/00, 27/12/00, 04/01/2001, 06/03/01, 15/03/2001, 05/09/01, 04/10/01, 09/10/01, 22/10/01, 27/03/02, 10/06/02, 22/07/2003, 30/09/03, 18/08/03, 18/11/2004, I also saw him about every 2 weeks for his general medical problems.
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15 The report concludes as follows: "In conclusion this man has had no problems of significance with his knee for 20 years until his fall. Since that time he has had ongoing problems, which has persisted despite arthroscopy, and he has an ongoing problem, which I believe to be permanent." 16 The report also mentioned that the plaintiff has suffered significant depressive symptoms for 20 years and these significantly worsened as a result of the knee injury. 17 The plaintiff's affidavit says, without providing any particulars, that the plaintiff's solicitors provided the respondent with "a copy of all my medical reports as well as written submissions on my injuries and calculation of my damages". 18 The relevant portion of s 47A of the Limitation Act 1935 provides as follows: "47A. Protection of persons acting in execution of statutory or other public duty (1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in
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(2) A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given. (3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would, but for the provisions of this section, have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.
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(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose. (c) 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. (a) In this section "person" includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown. (b) This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947." 19 It is agreed by both parties that s 47A of the Limitation Act 1935 applies to this matter so that under subs (1) the plaintiff was required to give notice in writing "as soon as practicable after the cause of action accrues" and to commence proceedings before the expiration of one year from the date on which the cause of action accrued. 20 It is agreed that the cause of action accrued on 15 November 2000 so that the 12 month limitation period for commencement of the action expired on 15 November 2001. 21 In order to obtain leave under subs 47A(3) the plaintiff must come within one of the three criteria set by the section: (a) that the delay in bringing the action was occasioned by mistake; or
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22 If the plaintiff is able to establish one of the above grounds, then the court if it "thinks it is just to do so" may grant leave. 23 In Hughes v Minister for Health [1999] WASCA 131 (at 42) Malcolm CJ gave the word "mistake" its ordinary meaning and referred to a mistake of fact or a mixed law and fact. In this case there was no evidence that the delay in this case was in any way caused by any mistake. 24 In Hughes (at 43) Malcolm CJ also stated that: "a reasonable cause" is a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable person". 25 As I have mentioned no explanation was provided by the plaintiff as to the reason for the delay in notifying the defendant of the intention to make a claim, until the final notification being by letter dated 21 March 2002. The Water Corporation in its letter dated 6 May 2002 indicated that it rejected the plaintiff's claim. Although in a subsequent letter dated 2 September 2002 on a "without prejudice basis" it agreed to consider medical reports forwarded to it, there was nothing in the letter which indicated the Water Corporation would accept the plaintiff's claim. 26 The next communication the Water Corporation received from the plaintiff's solicitors was on 21 October 2004 (over two years later) enquiring whether the defendant consented to bringing an action out of time. No explanation was given for this further significant delay. 27 Medical reports were not sent to the Water Corporation until the report of Dr Charles Russell-Smith became available on 23 November 2004. 28 In my opinion the extent of the overall delay was such that it could not be said that there was a reasonable cause for the delay. The only possible explanation for the failure would appear to be that the plaintiff's claim was not vigorously pursued.
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29 Consideration then must be given as to whether the plaintiff has established that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay. It is well established that the section was formulated in such a way that it meant that the ultimate burden to establish the absence of material prejudice lay upon the prospective plaintiff. However, it was accepted that the issue would not need to be specifically addressed unless the evidence raised the question that material prejudice might exist. That might be put in terms that the prospective defendant is regarded as carrying an initial evidentiary onus to raise the question, but once the evidence reached that stage, the ultimate onus to displace the inference of material prejudice would rest with the prospective plaintiff (Matheson v Commissioner of Main Roads (2001) 25 WAR 269, Murray J at 281; Baker v Shire of Albany (1994) 14 WAR 46 at 56).
30 The question of "materially prejudiced" was raised in an affidavit of Craig Anthony Masarei sworn on 13 July 2005 and filed on behalf of the defendant. In that affidavit Mr Masarei deposed that following the notification received from the plaintiff's solicitors dated 21 March 2002, he caused an investigation to be conducted in the area by an employee of the defendant. As a result of this investigation it was reported that the valve which was apparently involved in the accident was noted to be buried under some inches of soil which had to be dug up prior to being able to access the valve. It was observed there was a lid on the valve which displayed evidence of considerable rust on it, indicating it had been buried for some time. Photocopies of the photographs of the inspection of the valve were annexed to the affidavit. 31 Mr Masarei also sought to make enquiries concerning the letter from the Town of Kwinana to the plaintiff's solicitors dated 18 January 2001 wherein it advised that the Principal Works Supervisor had "made the area safe and contacted the Water Corporation to inform them of such". 32 No record of the Water Corporation being informed was located. The Water Corporation made further enquiries with the Town of Kwinana and received a letter from the Town of Kwinana dated 10 September 2002 reporting as follows: Further to your letter dated the 2nd September 2002 I wish to advise that the person that made contact with the Water Corporation at that time is no longer employed by the Town of Kwinana and is currently out of the country.
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As I understand the situation, the contact was verbal, over the telephone. Other than this no other information is available. If there is no hurry for the information Geoff will be back in the country mid October and could possibly answer questions then." (My emphasis) 33 An affidavit of Lian Michael Hall sworn 15 July 2005 and filed on behalf of the plaintiff deposes to Mr Hall speaking to a person by the name of Patrick from the Town of Kwinana who indicated that: 34 However, no affidavit was produced from Mr Toby Taylor by the plaintiff. 35 In any event, because the defendant was not notified until March 2002 of the plaintiff's claim, the defendant was not in a position to conduct its own investigation of the location of the alleged accident reasonably contemporaneously with the date of the alleged accident. Further, the task of finding witnesses who could recall the state of the verge immediately before the accident was made exponential more difficult. 36 The defendant also raises in the affidavit of Mr Masarei the question of prejudice arising from the fact that there was no medical report provided until November 2004. There is an obvious prejudice by the delay in providing medical evidence as it means that the defendant is unable to seek contemporaneous assessments of the plaintiff's medical condition, both immediately after the accident and as his treatment progresses. 37 Also it is recognised by McHugh J at p 551 in the decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 a delay in commencing proceedings sometimes leads to a deterioration in the quality of evidence that is even not recognisable by the parties. 38 I conclude that the plaintiff has failed to establish that the defendant is not materially prejudiced in its defence or otherwise by the delay.
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39 Even if the court is satisfied that the delay was occasioned by mistake or by any other reasonable cause, or that the prospective defendant is not materially prejudiced in its defence or otherwise by the delay, the court is only to grant leave if it "thinks it is just to do so".
40 In Matheson v Commissioner of Main Roads (supra) at p 282 Murray J stated as follows in relation to the discretionary issue as to the justice of the case: "In considering that question, matters bearing upon the establishment of the statutory pre-conditions will continue to be relevant. For example, the question of material prejudice to the prospective defendant will continue to have a bearing upon the question whether or not the discretion should be exercised in favour of the prospective plaintiff. See Bingham per Kennedy J (at 232). In addition, such matters as the strength of the cause of action and the question whether the prospective plaintiff would be materially prejudiced by an incapacity to pursue it will continue to be relevant." 41 The plaintiff's claim in this matter according to the letter sent by the plaintiff's solicitors to the defendant dated 21 March 2002 appears to be based upon the following: (a) A breach of a duty to inspect and maintain the valve and ensure that at all times the valve cover remained in place. (b) A breach of a duty to ensure that the lid for the shut off valve could not be easily or unnecessarily removed. (c) A breach of a duty to warn the plaintiff that a hole, if uncovered represented a danger to him and other passers by. 42 In Brodie v Singleton Shire Council (2001) 206 CLR 512, Gauldron, McHugh and Gummow JJ at p 162 stated: "Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them."
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43 There was no evidence presented to me that the Water Corporation could reasonably suspect that a danger existed as alleged by the plaintiff or that reasonable measures would have prevented the alleged danger.
44 Further, no evidence was presented which might support the allegation that the lid to the shut-off valve could be easily removed or that it was preventable. 45 Accordingly, this is not a case where it could be said the plaintiff has a strong case on the issue of liability. There are obvious difficulties in the plaintiff succeeding. 46 I should also take into account the extent of the plaintiff's injuries and the possibility that the plaintiff will be prejudiced by an incapacity to pursue his claim as a result of the limitation period. Although s 47A of the Limitation Act has been criticised (see Brown v Minister for Education [2003] WADC 182) it remains law in Western Australia and the time limitation is meant to apply unless the plaintiff can bring himself within the relief provided under s 47A(3). 47 The only medical evidence before me was a report of Dr Charles Russell-Smith dated 23 November 2004. There was no evidence presented to me which might assist in obtaining some preliminary indication as to the extent of an award for damages in favour of the plaintiff. On the material provided I am not able to conclude that the award of damages that might be made in favour of the plaintiff if he was successful would be substantial, particularly as according to the report of Dr Charles Russell-Smith there was a pre-existing knee problem and a pre-existing state of depression. 48 Taking these matters into account (including the substantial delay), even if the plaintiff had satisfied me that one of the pre-conditions existed, I am not satisfied that the justice of the case requires that he should be given leave to proceed out of time. 49 In my opinion, the application by the plaintiff should be dismissed.
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