Saul v Chaffey

[2019] NSWSC 72

Supreme Court

New South Wales

Medium Neutral Citation:

Saul v Chaffey [2019] NSWSC 72

Hearing dates:

4 February 2019

Date of orders:

13 February 2019

Decision date:

13 February 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) Leave to file the proposed amended defence is refused.

 (2) The defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

CIVIL PROCEDURE – practice and procedure – pleadings – amendment of defence - whether leave to be granted – whether leave is fair and just – where there is no satisfactory explanation for delay – whether leave will result in prejudice – whether amended defence is futile

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 5b, s 45(1), s 45(3)
Motor Accidents Compensation Act 1999 (NSW), s 7A, s 7C
Uniform Civil Procedure Act 2005 (NSW), s 64
Uniform Civil Procedure Rules 2005 (NSW), r 14.14

Cases Cited:

Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Holland v City of Botany Bay Council [2017] NSWSC 1120
Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423
North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27

Category:

Procedural and other rulings

Parties:

Cameron Peter Saul bhnf Alison Mary Saul (Plaintiff)
Andrew James Chaffey (Defendant)

Representation:

Counsel:
AJ Stone
SC with PJ Frame
J Turnbull SC

  Solicitors:
Carroll & O’Dea (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2013/332280

Publication restriction:

Nil

Judgment

1. HER HONOUR:

2. By notice of motion filed 1 November 2018, the defendant seeks an order that leave be granted to file and serve a proposed amended defence. The plaintiff objects to the filing of the proposed amended defence.

3. The plaintiff is Cameron Peter Saul bhnf Alison Mary Saul. The defendant is Andrew James Chaffey. Both parties relied on the documents contained in the agreed court bundle (Ex 1) and (Ex “MM – 2”) to the affidavit of Mark Malley of Moray & Agnew, the defendant’s solicitor, dated 22 November 2018.

Background

4. The plaintiff alleges he suffered a brain injury as the result of an accident that occurred on 9 November 2010, when he was 10 years of age. The plaintiff is now 18 years of age. It is expected that these proceedings will be ready for trial later this year.

The pleadings

5. On 4 November 2013, the plaintiff filed a statement of claim seeking damages against the defendant, who was the driver of the vehicle that collided with the plaintiff.

6. One of the allegations made by the plaintiff in his statement of claim is that the accident was a “blameless motor accident” as that phrase is defined in s 7A of the Motor Accidents Compensation Act 1999 (NSW). Alternatively, the plaintiff alleges that the defendant was negligent.

7. Prior to the filing of the defence, the insurer had a copy of an accident notification form dated 23 November 2010 (Ex 2) completed by the plaintiff’s mother. It gives a brief description of the accident as follows:

“Pacific highway Kempsey

Cameron crossed the southbound

lanes to the median strip

tripped and fell into the

path of a North bound car.” [Emphasis added.]

Blameless accident

8. Sections 7A and 7C of the Motor Accidents Compensation Act read:

“7A   Definition of “blameless motor accident”

In this Division:

blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”

7C   Presumption that motor accident is blameless

In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary.”

9. If the plaintiff alleges that an accident is blameless, in accordance with s 7C of the Motor Accidents Compensation Act, the onus shifts to the insurer to provide evidence to the contrary. In Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 (“Axiak”), the Court of Appeal per Tobias AJA (with Beazley JA and Sackville AJA agreeing) stated at [66]-[68]:

“66   … the phrase “any other person” cannot be divorced from its context. Once it is accepted that the expression "fault of any other person" refers only to the tortious conduct of that person, it must follow that the “person” referred to cannot include the injured person whose “fault” in the form of non-tortious contributory negligence is excluded from the definition of “blameless motor accident” in s 7A. That conclusion is reinforced once the words of the definition of “fault” are inserted into the definition of “blameless motor accident” in the manner suggested by McHugh J in Kelly, at [103] (see at [62] above). When the definition of “blameless motor accident” is read this way, it is evident that the expression “any other person” excludes the person who has been injured.

67 The respondent then submitted that if the first appellant's construction of s 7A is adopted, Division 2 would never be engaged for notwithstanding that an injured child was guilty of contributory negligence, that child would still be entitled to claim damages under Division 1. The answer to this potential conundrum is two fold. First, as a matter of precedence Division 1 should take priority over Division 2. The latter is only relevant if Division 1 is not engaged. The question of contributory negligence on the part of a child or, for that matter, an adult, is accommodated by s 7F in Division 1 subject to the limitation provided for in s 7P(2).

68 Secondly, where the fault of the driver of the relevant vehicle causes the motor accident, the injured plaintiff can claim Chapter 5 damages under the Act and is assured of receiving the damages awarded to him or her because of the applicable third party policy covering that driver. The same cannot be said where, within the meaning of s 7A, the fault of a third party is found to be the cause of the motor accident. That third party may or may not be insured and, therefore, may or may not be in a position to meet any damages that may be awarded to the injured plaintiff. If that third party is a person of straw or otherwise uninsured and/or unable to meet an award of damages, then it would be open to the injured plaintiff, if a child, to engage Division 2. He or she would be entitled to do so, as the provisions of s 7J(1) would be satisfied, namely, that the motor accident was not caused by the fault of the relevant driver. Thus Division 2 has work to do in such circumstances.”

10. On 29 January 2014 (some four years ago), the defendant filed a defence. The defence specifically denied firstly, the allegation of blameless motor accident; and secondly, that the plaintiff was negligent, as referred to in [7] and [9] of the statement of claim. It is fair to say that in this defence, the defendant did not provide any particulars in support of the denial of the blameless motor accident.

The proposed amended defence

11. Paragraphs 1 to 8 of the proposed amended defence read:

“1.   The defendant denies paragraphs 5, 7, 8 and 9 of the Statement of Claim.

2.   In further answer to the plaintiff’s alternative allegation that the subject accident was relevantly blameless, which the defendant denies, the defendant says that the plaintiff’s accident was caused by the fault of Kempsey Shire Council.

PARTICULARS

(a)   On the date of [the] accident the plaintiff was crossing the Pacific Highway (“Smith Street”) Kempsey from east to west from a point adjacent to number 109 Smith Street (‘the crossing point”).

(b)   At the crossing point, Smith Street is divided by a landscaped median strip on which there was vegetation and also facilities installed for the purpose of maintaining median strip and the vegetation on it. Those facilities included a 13 mm plastic irrigation pipe. That pipe was buried at each end of an earthen track where pedestrians crossed through the landscaped garden on the median strip forming a loop above the ground.

(c)   The plaintiff crossed Smith Street and reached the median strip. On attempting to leave the median strip to cross the second half of Smith Street, the plaintiff tripped on a raised irrigation pipe and fell forward into the path of a motor vehicle being driven by the defendant. The plaintiff further alleges that he was struck by the defendant's vehicle and sustained significant injury.

(d)   The Roads and Traffic Authority (NSW) ("RTA") had the legal responsibility of the control and maintenance of the median strip.

(e)   The RTA negotiated with the Kempsey Shire Council in or about March of 2002. As a consequence of that negotiation the Kempsey Shire Council entered into a contract with the RTA by which it, inter alia, agreed for consideration to undertake the maintenance of the landscaped median strip dividing Smith Street, including the area where the subject accident occurred and where the raised irrigation pipe was located, ie the crossing point.

(f)   From the time of entering into the contract, the Kempsey Shire Council performed the work of that maintenance and was doing so at the time of the alleged accident the subject of these proceedings.

(g)   As a consequence of its obligations under the contract with the RTA the Kempsey Shire Council owed to road users including the plaintiff a duty of care to prevent foreseeable risks of harm.

3. The defendant says that any injury, loss or damage occasioned to the plaintiff was a consequence of the negligence of the Kempsey Shire Council in breach of its duty within the meaning of s 5B of the Civil Liability Act 2002 (NSW) (“CLA”).

PARTICULARS OF BREACH

(a)   Failing to warn the plaintiff of the presence of a tripping hazard in the form of a raised irrigation pipe;

(b)   Failing to install anything to enable visual identification of the tripping hazard;

(c)   Allowing the irrigation pipe to rise up above ground level;

(d)   Failing to cover or barricade the irrigation pipe when it was in a raised position above ground level;

(e)   Failing to remove or bury the tripping hazard when it was in a raised position above ground level;

(f)   Failing to provide a safe pathway across the median strip in circumstances where it knew or ought to have known that pedestrians crossed Smith Street using the median strip as a means of access from one side of the road to the other;

(g)   Failing to properly inspect and identify a tripping hazard on the median strip.

4. The risk of harm was foreseeable and not insignificant and ought to have been known to a reasonable person in the position of the Kempsey Shire Council, its servants and/or agents pursuant to s 5B(1)(b) of the CLA.

PARTICULARS OF RISK OF INJURY

(a)   Significant and serious injury consequent upon tripping and falling into the path of passing traffic;

(b)   Death from tripping and falling into the path of passing traffic.

5. The defendant says that a reasonable person in the position of the Kempsey Shire Council would have taken precautions against the risk of harm within the meaning of s 5B(1) and s 5B(2) of the CLA.

PARTICULARS OF PRECAUTIONS

(a)   Warning the plaintiff of the presence of a tripping hazard in the form of a raised irrigation pipe;

(b)   Installing a visual identification of the tripping hazard;

(c)   Ensuring that the irrigation pipe did not rise up above ground level forming a loop which became a tripping point;

(d)   Covering or barricading the raised irrigation pipe;

(e)   Removing or burying the tripping hazard;

(f)   Providing a safe pathway across the median strip;

(g)   Properly inspecting and identifying any tripping hazards on the median strip.

6.   The defendant does not admit the injuries, loss and damages alleged by the plaintiff;

7.   The defendant does not admit paragraphs 10 and 12 of the Statement of Claim.

8.   The defendant says that the plaintiff's injury was contributed to by the plaintiff's own negligence.

PARTICULARS OF CONTRIBUTORY NEGLIGENCE

(a)   Failure to keep a proper look out;

(b)   Failure to take adequate care for his own safety;

(c)   Crossing the road when it was unsafe to do so.”

12. In other words, the insurer now intends to plead that the accident is not a blameless one and that Kempsey Shire Council (“the Council”) was negligent. The defendant in this proposed amended defence does provide particulars that as to why he claims that it is not a blameless accident. It is common ground that the RTA had a contractual arrangement with the Council for the Council to maintain the roadway.

13. On 11 October 2018, leave was granted to serve a cross claim against the Council.

14. On 12 October 2018, the defendant filed a cross claim against the Council seeking contribution and indemnity in respect of all liability that the cross claimant may have to the plaintiff.

15. On 4 February 2019, the cross defendant filed a defence against the cross claim.

The requirements of pleadings

16. Section 64 of the Civil Procedure Act 2005 (NSW) reads:

“64   Amendment of documents generally

(1)   At any stage of proceedings, the court may order:

(a)   that any document in the proceedings be amended, or

(b)   that leave be granted to a party to amend any document in the proceedings.

(2)   Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.”

And Rule 14.14 of the Uniform Civil Procedure Rules 2005 (NSW) reads:

“14.14   General rule as to matters to be pleaded specifically

(cf SCR Part 15, rule 13; DCR Part 9, rule 9)

(1)   In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

(2)   In a defence or subsequent pleading, a party must plead specifically any matter:

(a)   that, if not pleaded specifically, may take the opposite party by surprise, or

(b)   that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or

(c)   that raises matters of fact not arising out of the preceding pleading.

(3)   Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.”

17. The insurer did not plead the defence as set out in UCPR 14.14. The proposed defence is a pleading that accords with the requirements of UCPR 14.14.

The defendant’s submissions

18. In summary, the defendant makes the following submissions:

(a)   If the plaintiff tripped and fell on a pipe that was difficult to see then it is possible, but not necessarily certain, that the discoverability of any cause of action against the Council started on, or very close to, the day of the accident.

(b)   If the cause of action was discoverable at the date of the accident, then given the timing of the filing of the plaintiff’s statement of claim, any defence filed more than 5 days after the filing of the statement of claim raising the blameless accident provisions would have done so at a time when the plaintiff was statute barred from bringing any proceedings against the Council.

(c)   In the absence of any evidence from the plaintiff, it is simply unknown when the cause of action against the Council was discoverable by the plaintiff and his representatives. If, for example, it only became discoverable when particulars were provided in September this year, then the plaintiff remains well in time to bring any proceedings he may wish to bring against the Council.

(d)   If, prior to 27 July 2018 (on which date a letter seeking particulars was sent by the plaintiff’s solicitors to the defendant’s solicitors), the plaintiff's solicitors had been under any doubt as to why the matter was not a blameless accident, given that the circumstances of the accident were well within the knowledge of the plaintiff and, presumably, his advisors, it was of course open to the plaintiff to seek such particulars.

(e)   Instead, the plaintiff now seeks those particulars some 4½ years after the filing of the defence, and makes a complaint that such particulars should have been provided earlier and that he is now prejudiced because of their late production.

(f)   The plaintiff’s solicitors were on notice that the allegation of blameless accident was denied. They were apparently content to proceed with the matter on the basis of the pleadings that had been filed on behalf of both parties until July this year.

19. The defendant submitted that in he should be allowed to amend his defence, as the asserted basis for prejudice arising therefrom is not made out.

The plaintiff’s submissions

20. The plaintiff objects to the filing of the proposed amended defence for four main reasons: firstly, it is not fair and just; secondly, there is no satisfactory explanation for delay; thirdly, prejudice; and finally, futility. I shall deal with each reason in turn.

(i)   Not fair and just

21. The plaintiff was not required to guess or ask for the reasons behind the unparticularised denial of the blameless accident pleading. The plaintiff was entitled to rely on UCPR 14.14 and to assume that if there were specific factual matters on which the defendant relied to contest the application of the blameless accident provisions, then those matters would (as required by the Rules and any basic understanding of procedural fairness) be properly pleaded.

22. The enquiries by the defendant into the circumstances of the accident and the existence of the irrigation hose as a tripping hazard were underway before the defence was filed. The Moray & Agnew letter of 25 October 2012 making a GIPA application to the Council specifically sought records in relation to the “median strip or pipe”.

23. Further, early in the life of the proceedings, the defendant issued two subpoenae to the Council and obtained documents in response. Mr Keramidas was retained for the specific purpose of providing comment about the potential liability of the Council.

24. By early 2016, the defendant had whatever material was available from the Council in relation to the median strip and the irrigation pipe.

25. On or about 27 September 2016, the defendant received the Keramidas report, which specifically addressed the circumstances of the accident and provided an opinion as to fault on the part of the Council. By this stage, there can have been no excuse for the defendant failing to seek to amend the defence and comply with UCPR 14.14.

26. However, for reasons that are entirely unexplained, the defendant sat quiet. The Keramidas report was not served.

27. For a period approaching two years between 27 September 2016 and 27 July 2018, the defendant failed to act to fix a gross breach in pleadings, even when fully seized with the information required in order to seek the appropriate amendments. The defendant did not even take as simple a step as writing to the plaintiff's legal representatives to advise of its intention to amend and run the s 7A argument based on fault on the part of the Council.

28. It is against this background that the plaintiff says that the defendant has failed to discharge its onus to satisfy the court that it is “fair and just” to allow the pleadings to be amended.

(ii)   Absence of explanation

29. The starting point for any request for the exercise of judicial discretion is to fully and frankly explain why the exercise of the discretion is required. Across three affidavits of Mr Malley, as well as written submissions prepared by senior counsel, the defendant does not provide the Court with an explanation with respect to any of the following relevant issues:

1. Why there was no compliance with UCPR 14.14 when the defence was filed.

1. Why there was no application to amend the defence after receipt of documents under subpoena from the Council.

2. Why there was no application to amend the defence to comply with UCPR 14.14 after receipt of the report of Mr Keramidas on or about 27 September 2016.

3. The ongoing failure to amend the defence to comply with UCPR 14.14 in the near two years between receipt of Mr. Keramidas’ report in September 2016 and the receipt of the Matthews Folbigg letter of 27 July 2018.

30. Absent any explanation for the defendant’s non-compliance with the Rules, the plaintiff has submitted that the belated amendment should not be permitted. The defendant is not exempt from the pleadings requirements in the Rules. The defendant's approach to this application, which assumes a right to amend without explanation, should not be endorsed or encouraged.

(ii)   Prejudice

31. The first and most significant prejudice to the plaintiff is that the amendment, if permitted, puts him on risk of losing his entitlement to substantial damages for non-economic loss and economic loss. This risk that did not exist from January 2014 to September 2018.

32. Although the blameless accident allegation was denied in the defence, the effect of s 7C of the Motor Accidents Compensation Act is that the plaintiff’s averral of a blameless accident shifted the evidentiary onus onto the defendant to demonstrate that the circumstances were not blameless. The defendant never had any prospect of discharging that onus without adducing evidence that someone else was at fault. No such case was pleaded, and in accordance with UCPR 14.14, no such case could be run. The plaintiff had to win on all heads of damage, absent any alternate case from the defendant pleading fault on the part of some other person.

33. No such alternate case was proffered on the pleadings or offered up in correspondence. The plaintiff, his tutor, and their legal advisers were therefore entitled to view the case as “unlosable” on all heads of damage for over four years from January 2014 to September 2018. The plaintiff (in accordance with Axiak) merely had to win a blameless accident claim.

34. The proposed defence would allow the defendant to contest an issue that has not been the subject of direct notice and not been pleaded for the last four and a half years. The amendment puts the plaintiff at risk of losing significant damages, with possible adverse costs consequences. This is a massive potential prejudice to the plaintiff that cannot be cured, except by refusing the amendment. It is the defendant’s own conduct that has created the prejudice, and the defendant should bear responsibility for its failure to comply with the Rules.

35. Secondly, if the amendment was allowed, the plaintiff would be prejudiced in meeting the now pleaded defence. As the correspondence from the Council of 2 December 2015 makes clear, there is a paucity of evidence with regards to when this section of irrigation pipe was installed, whether it was installed properly to begin with, when it first protruded above the ground, how long this occurred before the subject accident, and whether the protruding irrigation pipe ever came to the attention of the Council prior to the plaintiff’s accident.

36. It would appear as if the answers to all of these questions are irretrievably lost. The defendant certainly adduces no evidence in answer to any of them.

37. Had the plaintiff been on notice of the defence to the blameless accident claim when the defence was filed on 29 January 2014, there were investigations the plaintiff could have undertaken that may have revealed the answers to these questions. The delay is a consequence of the defendant’s failure to properly plead the case, and the responsibility for the resulting prejudice to the plaintiff rests squarely with the defendant.

38. It is acknowledged that the answers to these questions may have already been lost prior to the filing of the defence. However, the situation is akin to an application by a plaintiff to extend time. Prejudice to a defendant inside the limitation period is the defendant's problem. However, when a plaintiff needs an extension of time, all prejudice to the putative defendant is taken into account, not just that occurring after the expiry of the limitation period.

39. In this case, if the proposed amended defence had been filed in January 2014, the plaintiff could have had no objection. Where instead the defence is being sought to be filed four years later, the totality of the prejudice is relevant to a discretion to grant leave to amend.

40. Thirdly, and finally, the plaintiff is prejudiced in terms of now seeking to commence proceedings as against the Council. If the plaintiff sought to join the Council to proceedings as defendant, then it would seem inevitable that the Council would plead a limitations defence. That in turn would raise the issue as to when the cause of action was “discoverable”. There would be at least a reasonable argument that the cause of action might have been discoverable with the production of documents by the Council back in February 2014. The documents produced in packet S-7 included the email from Mr Tony Green of 9 November 2010 and the attached picture of the extruding pipe taken on the day of the accident.

41. It is difficult to criticise the legal representatives of the plaintiff for not exploring liability on the part of the council and possible joinder of the council as a defendant back in 2014. At that stage, on the pleadings and applying Axiak, the plaintiff had to win his case as against the CTP defendant, on all heads of damage. A pedestrian had to win a blameless accident case and there was no case being put forward by the defendant identifying fault on the part of any other party.

42. The defendant may have been exploring the cross claim for contribution that it ultimately filed in 2018, but there was no reason for the plaintiff to be concerned with finding another party to add. However, although the plaintiff had no good reason to consider an additional defendant, the cause of action was arguably discoverable with the evidence in Mr Green’s email and the attached photo, as both were available in documents produced under subpoena in 2014. The plaintiff would now be out of time to sue the Council.

43. If the defendant was allowed to amend and the plaintiff sought to join the Council as a defendant to proceedings there is a significant prospect that a limitations defence would succeed. The late notice of the defendant’s full grounds of defence has prejudiced the plaintiff’s prospects of successfully suing another defendant.

44. The plaintiff should not be put in this position as a consequence of the defendant’s failure to comply with the Rules.

(iv)   Futility

45. It is acknowledged that courts should be very slow to reject amendments to pleadings on the basis of futility arguments. The General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (“General Steel”) test requires little more than an arguable case.

46. In General Steel, Barwick CJ at 129 stated:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.’”

47. Having said that, establishing “fault” on the part of the Council (such as to engage s 7A) requires the defendant to prove (they bearing the onus by virtue of s 7C) that there is fault on the part of the Council. That in turn will engage the provisions of s 45 of the Civil Liability Act 2005 (NSW), the special non-feasance protection for roads authorities.

48. Section 45(1) of the Civil Liability Act relevantly provides:

“A roads authority is not liable in proceedings for civil liability to which this part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.”

See Holland v City of Botany Bay Council [2017] NSWSC 1120 and Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423.

49. It is submitted that the Court would not entertain permitting the amended defence unless there was some evidence that the defendant could overcome s 45 by establishing the requisite knowledge. There is no evidence before the Court that the Council had actual knowledge of the particular risk.

50. As addressed by the Court of Appeal in North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27, it is necessary that the specific council officer responsible for directing repairs be on notice of the specific alleged hazard. In this case, there is no evidence of any Council official being on notice of the exposed irrigation pipe, let alone the responsible officer (who has not been identified).

51. On the available evidence, the defendant could not discharge the onus it bears in establishing fault on the part of any other person under s 7A of the Motor Accidents Compensation Act, as the defendant has adduced no evidence to overcome the effect of s 45 of the Civil Liability Act. It is emphasised that s 45(1) provides that the Council (relevantly a “road authority”) is not liable for a failure to carry out road work, absent actual knowledge.

52. Section 45(3) relevantly defines “road work” to include “maintenance”. Maintenance of the median strip would therefore relevantly constitute road work in this case.

53. The Court should not grant leave to amend where the argument raised by the amendment seems futile.

Conclusion

Fair and just; explanation for delay

54. The onus is upon the defendant to explain their delay and properly provide particulars in its defence as to why the accident is not blameless, in accordance with UCPR 14.14. The thrust of the defendant’s submissions is to attempt to shift the blame to the plaintiff for his own shortcoming. It appears that it was only when the plaintiff’s solicitor wrote to the defendant’s solicitor on 27 July 2018, pointing out that the defendant had no particulars and setting out no information as to the basis on which the blameless accident was denied, that the insurer’s solicitor turned his mind to the necessity to properly plead the defence.

55. The defendant’s solicitor proffers no real explanation for the delay of over four years in seeking to amend the defence, despite relying on three affidavits and being cross examined. The explanation, or more accurately, the lack of explanation, is unsatisfactory.

Prejudice

56. The most significant prejudice to the plaintiff is that allowing the amendments to the defence would put him on risk of losing his entitlement to substantial damages for non-economic loss and economic loss, which is a risk that did not exist from January 2014 until September 2018.

57. If the amendment is allowed, the plaintiff would be further prejudiced in meeting the now-pleaded defence. Adequate evidence with regards to the circumstances surrounding the accident and the Council’s involvement in the irrigation pipe’s installation and maintenance has been irretrievably lost.

58. What evidence remains includes photographs, one or more of which show the skid marks of the defendant’s car.

59. I accept that there is also a copy of a statement by police officer John William Ferris on the date of the accident that records:

“About 8.55am on Tuesday 9 November 2010 the young person, Cameron SAUL, was crossing the road in Smith Street, Kempsey outside Super Cheap Auto with his father. They were crossing from east to west, with the young person in front of his father.

When the young person reached the centre nature strip that divides the south bound and north bound lanes, he has apparently tripped on some irrigation hose that was sticking up. As a result, the young person has fallen head first into vehicle 2, which was travelling in lane 2 and 2 northbound. It appears the young person’s head collided with the front offside bumper/wheel arch of vehicle 2, which was being driven by CHAFFEY at a stated speed of 30km/h in the 70km/ zone.

CHAFFEY was doing the speed as he was about to do a u-turn at the end of the nature strip. He was unable to react until after the collision, where he came to rest 18 metres north of the point of impact.” (Ex 1, p 54).

60. There is also the accident notification form completed on 23 November 2010 (Ex 2) by the plaintiff’s mother (reproduced earlier). Both of these documents refer to the plaintiff tripping into the path of a northbound car. There is a photograph of the irrigation pipe, which was “13mm plastic and was buried at each end of the bare earth track where pedestrians cross through the garden, forming a loop above the ground” still in existence, together with a file note that reads “with permission from the Police, it [the irrigation pipe] has now been removed”. This photograph was taken on the day of the accident and the file note was created by Tony Green, an employee the Council.

61. If the plaintiff is now obliged to join the Council as a defendant, his legal representative will need to conduct investigations in an attempt to establish that his solicitor has a viable cause of action against it. The plaintiff may be met by the Council alleging that the plaintiff’s claim against it is statute barred. It is far from clear whether that cause of action is statute barred, but if it is, the plaintiff will suffer severe prejudice caused by the defendant filing the proposed amended defence. Further, on the topic of prejudice, the police photographs of the accident site have been lost.

62. A statement relating to the accident taken by a lay witness, Mr Fisher (or could be Fischer) has also now been lost. An attempt by the defendant to locate Mr Fisher in 2011 was not successful. Police Officer Ferris was interviewed by the defendant in 2016.

Futility

63. There is a report by defendant’s traffic reconstruction expert William Keramidas, dated 27 September 2016 (“the report”). Under the heading “Conclusions” at [7] Mr Keramidas opined:

“7.   An assessment was made with respect to the contributing factors to the subject collision, with the key contributing factors identified as:

a.   The existence and nature of the centre median installation.

b.   The poor maintenance allowing two irrigation pipes to be exposed and thereby provide a tripping hazard.

c.   The Council was aware of the use of the centre median as an informal pedestrian refuge and failed to either formalise crossing points or properly maintain the median knowing this.

d.   A further contributing factor was the use of the centre median by the pedestrians to cross the roadway, noting however that there were no pedestrian crossing facilities or other suitable crossing points [across the centre median] anywhere in the immediate vicinity.

e.   In the author's opinion, the responsible Road Authority and their failure to appropriately maintain the centre median when specific maintenance programs were in place was the primary cause of this collision.”

64. The particular risk was that a person would trip on the plastic irrigation pipe on the median strip and into the path of an oncoming car. This report does not specifically address whether the Council had actual knowledge of this particular risk. The report may or may not be supplemented by witnesses from the Council as to their actual knowledge of this particular risk. I am not in a position to conclude that the defendant’s case against the Council is futile, although on the current evidence, it is weak.

65. I accept that the defendant’s chances of success in its claim for contribution against the Council are not futile. However, it is my view that in circumstances where the defendant has not filed a defence that complies with UCPR 14.14 for four years, and does not provide any real explanation for a delay which results in actual prejudice to the plaintiff as outlined earlier, it is not fair and just to grant leave to the defendant to file the proposed amended defence. Leave to file the proposed amended defence is refused.

66. It should be noted that for some inexplicable reason, the defendant’s solicitor, without leave, filed an amended defence in the registry on the day of hearing. That amended defence is the precursor to the proposed amended defence. The defendant cannot rely on the amended defence.

67. Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court orders that:

(1)   Leave to file the proposed amended defence is refused.

(2)   The defendant is to pay the plaintiff’s costs on an ordinary basis.

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Decision last updated: 14 February 2019