Sher v Smart - [2018] TASSC 2

[2018] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Sher v Smart [2018] TASSC 2

PARTIES:  SHER, Zahid Akram Khan
  v
  SMART, Daryl John
  HARRIS, Rene Ann

FILE NO:  901/2014
DELIVERED ON:  18 January 2018
DELIVERED AT:  Hobart
HEARING DATES:  11 January 2018
JUDGMENT OF:  Geason J

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Joinder and causes of action and parties – Parties – Other matters.

Aust Dig Procedure [1144]
Procedure –Case management – Objects – Elimination of delay.
Aust Dig Procedure [1095]

REPRESENTATION:

Counsel:
             Plaintiff:  In Person
             First Defendant:  K E Read SC
             Second Defendant:  K E Read SC
             State:  P Turner
Solicitors:
             First Defendant:  Dobson Mitchell Allport
             Second Defendant:  Dobson Mitchell Allport
             State:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 2
Number of paragraphs: 33

Serial No 2/2018
File No 901/2014

ZAHID AKRAM KHAN SHER v DARYL JOHN SMART AND RENE ANN HARRIS

REASONS FOR JUDGMENT GEASON J

18 January 2018

On 10 December 2011, the plaintiff was driving his Hyundai sedan from the Mowbray Link across the East Tamar Highway in Launceston. At the same time the first defendant was driving his vehicle in a southerly direction along the East Tamar Highway towards the intersection. The second defendant pleads that she was also at the intersection, stationary and waiting to cross the Highway. There was a collision involving the three vehicles.
The plaintiff pleads that his vehicle was struck by the first defendant's vehicle and then by the vehicle driven by the second defendant. The collision between the plaintiff and the first defendant is admitted. The second defendant says that the plaintiff's vehicle struck her stationary vehicle.
The plaintiff puts his case on the basis that the first and second defendants were negligent. There are the usual particulars: He contends that the first defendant drove at an excessive speed in the circumstances; failed to keep any proper lookout; failed to give any warning or adequate warning of the approach of his vehicle; and failed to stop, brake or swerve, or otherwise manoeuvre to avoid a collision. Against the second defendant he alleges that she failed to keep any proper lookout; failed to stop, brake or swerve, or otherwise manoeuvre to avoid a collision. The plaintiff claims damages for personal injuries sustained as a result of the accident.
The action is listed for trial on 6 February 2018.

The history of the proceedings

The plaintiff commenced his action in 2014. At the time he was represented by counsel. Now he acts on his own behalf. Numerous interlocutory orders have been made since the commencement of the action. These included the substitution of the defendants in the action in place of the Motor Accidents Insurance Board. In April 2015 a direction was made requiring the plaintiff to deliver all statements of expert evidence to be relied upon within 28 days of that appearance; an order varying that direction to allow the plaintiff 42 days from 27 April to deliver those was made; then there was a further variation to that order requiring the plaintiff to deliver those statements within 28 days of 26 June 2015; a further variation to that order on 14 August 2015 required the plaintiff to deliver the statements of expert evidence within 12 weeks of that date; a further variation of that order on 20 June 2016, requiring the plaintiff to deliver them within 42 days of that date. A further order was made at the same time affording the plaintiff "liberty to apply for an extension of the time prescribed" therefor, provided such application was made before the expiration of the period prescribed. Then there was an application for the separate trial of the issues of liability and damages; on 20 December 2016, an order permitting the plaintiff to amend his statement of claim; and a further order directing the delivery of evidence, other than the expert evidence, by 30 January 2017, and related orders relating to medical witnesses, and the delivery of particulars of injury and quantum.
Directions hearings were held on 5 May 2017, 29 June 2017, 6 July 2017, 7 July 2017, 26 July 2017 and 29 August 2017. In the course of the directions hearing on 7 July 2017, the trial of the matter listed for 7 August 2017 was adjourned. A further directions hearing was conducted on 30 October 2017, at which time the plaintiff made an oral application, which the court adjourned so that certain procedural matters could be attended to. On 13 November 2017, a further directions hearing was conducted. It was adjourned to afford the plaintiff an opportunity to take legal advice. Most of the delays associated with the conduct of the directions hearings are related to the plaintiff's difficulties in procuring legal representation. The numerous opportunities afforded to the plaintiff represent efforts to accommodate his circumstances and to ensure that when the trial of this matter proceeds, he will be able to present the case he gas pleaded against the defendants. But whatever the reasons, it remains the fact that the case has a long history. Indeed, counsel for the defendants indicated to the Court that since the commencement of the action the first defendant had died. The second defendant is of advancing years. Prejudice is claimed if there is a further delay in the hearing of the action. That will happen if the application is granted. I will return to that issue later in these reasons.
Against that background, the plaintiff seeks an order from the Court pursuant to r 184 of the Supreme Court Rules 2000 joining the Department of State Growth as a defendant in the action. The application relies upon the provisions of r 184(1)(b), the second limb of which is applicable.
The Court's jurisdiction to entertain the application and to make an order under r 184 is not constrained by the fact that the trial is imminent. An application may be made at any stage of a proceeding.
In his affidavit in support of the application the plaintiff said:
"8 I respectfully request that the Department be added to this matter as the third Defendant because of their failure to make the Intersection safer for road users."
The application is based upon the content of the proof of evidence prepared by the plaintiff's expert, Dr Rechnitzer, the relevant parts of which were set out in the plaintiff's affidavit in support of his application, which was taken into evidence. It was agreed that even though the report itself is not in evidence I could have regard to it for the purposes of this application. The report referred to is dated 24 October 2017 (there have been other iterations of this document), Dr Rechnitzer states at page 52:
"The design of the subject Mowbray Link / Tamar East Highway intersection, is the antithesis of the Safe System approach to road safety and road design, which was adopted by the Australian Transport Council in 2004.
The subject intersection, was uncontrolled other than by a Give-Way sign, requiring drivers to make right hand turns against conflicting high speed traffic flows … Such an intersection design from its inception, was a dangerous configuration, which violated known safe intersection design principles, and was designed with a high risk of increasing vehicle conflicts (collisions)."
Dr Rechnitzer describes the Safe System approach in his report. According to his evidence, it identifies the key role of system designers in ensuring that design reduces the risk of road users making errors, and if a collision does occur, that speeds are managed so that they are low energy with a low risk of serious injury.
The plaintiff supplements that opinion with documents referencing commentary by politicians, the Launceston City Council and others, discussing the dangers inherent in the configuration and design of the intersection. As well, I have been provided with a number of general articles relating to road safety and road design. I have read them. They do not assist the application.
The first and second defendants oppose the application. They contend that the material placed before the Court in support does not disclose a prima facie case against the Department of State Growth. The defendants adopt the submissions of the State on this point.
The defendants also submit, as a discrete point, that the language of r 184 precludes the Court from reaching the conclusion that the joinder of the Department may be necessary in order to "adjudicate on and settle all the questions involved in the proceeding". It is submitted that "all the questions involved in the proceeding" are the questions which are framed in the plaintiff's statement of claim. Since the statement of claim makes no mention of the configuration or design of the intersection, the issues sought to be raised, cannot be "questions involved in the proceeding".
I am inclined to the view that that submission represents too narrow an interpretation of the provision. The statement of claim frames the issues sought to be agitated in the proceedings, as they are comprehended at the commencement of the action. The purpose of r 184, is to facilitate the resolution of all the issues involved in the proceeding, when there is a prima facie case against a non-party which will be left unresolved if an application for the addition of a party is not granted. This will include issues which emerge in preparation for trial but which have not been pleaded. Self-evidently, in those circumstances, the likelihood of the pleadings adverting to the new issue is remote. This case provides an example of one way in which that might occur. Whilst the pleadings allege negligence against each of the defendants, in the preparation of the case, an expert has commented upon the construction and design of the intersection at which the accident occurred. If evidence supported the existence of a causal connection between a breach of a duty reposed in the Department as the entity responsible for the intersection and the loss claimed by the plaintiff, I do not think the fact that the statement of claim had not adverted to that causation scenario, would preclude the Court from making an order under r 184. I consider that a broad interpretation of the phrase "all the questions involved in the proceeding" should be adopted so that matters which are prima facie causally connected to the loss claimed in the proceedings can be adjudicated upon in those proceedings. (The exercise of the discretion is of course subject to other considerations. The prospect of delay in the commencement of the trial is one of them).
In that respect the defendants urge upon the Court that, consistently with the principles articulated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175, the Court should decline the application on case management grounds. The Court will return to this submission later in these reasons.

The State's submission

The application of rule 184 requires that a prima facie case against the proposed defendant is disclosed on the evidence: Sharp v McGivney [1951] VLR 143 at 145 per Sholl J; Bradvica v Radulovic [1975] VR 434; CGU Insurance Limited v Blakeley [2015] VSCA 153. The State's submission is that there is no evidence to establish such prima facie case against the Department.
In order to determine whether such proposition is correct, it is necessary to identify the question required to be determined in the action. The allegation is in negligence. It invokes s 13 of the Civil Liability Act 2002, which appears within Pt 6 of that Act. Part 6 applies to civil liability of any kind for damages for harm resulting from a breach of duty, subject to an exception that is not relevant for present purposes: s 10. Section 11 of that Act identifies the general principles going to standards of care which apply; it incorporates the well understood common law principles pertaining the duty to take reasonable care, and circumstances where a breach of that duty, sounds in legal responsibility for the harm which results. Section 13 articulates the prerequisites for a finding that a breach of duty caused harm.
To succeed in the action the plaintiff must place evidence before the Court which addresses each of the elements in s 13 of the Civil Liability Act.
In relation to this application it must be shown by the plaintiff that the Department owed a duty which it breached, which caused or contributed to his loss. That is factual causation. The State acknowledges the existence of its duty of care, and accepts the deficiencies in the design of the intersection.
The approach to the question in the context of road traffic accidents is articulated in many cases. The State referred me to the decision of the High Court in Roads and Traffic Authority v Royal [2008] HCA 19, and the decision of the New South Wales Court of Appeal which preceded it. Relevantly as to causation I was referred to the decision of Gummow, Hayne and Heydon JJ at [25], where after discussing the dangers associated with the design of the intersection they say:
"[25] The problem – the danger, the risk – thus discussed, however, had nothing to do with the collision in question. The problem or danger or risk was that where two vehicles were approaching in adjoining lanes, one might obscure the other. That did not happen in this case. It was clear from the evidence of the defendant, the evidence of Mr Relf (driving behind the defendant) and the evidence of Mr Hubbard (driving behind the plaintiff), that the defendant's vehicle was not obscured from the plaintiff's view by another vehicle. In short, even if it could be said that the appellant's breach of duty 'did materially contribute' to the occurrence of an accident, 'by creating a heightened risk of such an accident' due to the obscuring effect of one vehicle on another in an adjoining lane, it made no contribution to the occurrence of this accident." [Original Emphasis.] [Footnote omitted.]
And at [30]:
"[30] The defendant's submission in answer to them was that there would have been no cross-intersection accident if there had not been a cross-intersection; the cross-intersection had a design fault in that one car visible from the Stop sign could mask another car in an adjoining lane; that fault could be overcome by eliminating the cross-intersection; and the failure to do this caused the accident. If the last step in this submission by the defendant were to be valid, it would be necessary to establish that the masking problem prevented the plaintiff from seeing the defendant's car. There was no evidence of that proposition, and no finding to support it."
Though a commentary upon the evidence in that case, the relevance of the passage is that it exposes a critical matter for this application: that is, that broad statements of legal duty, and correspondingly general statements pertaining to the condition of a road, or the suitability of an intersection, do not in and of themselves, establish the requisite nexus between the breach of duty and the harm. It is a question of evidence in every case.
The plaintiff referred to the decision of the New South Wales Court of Appeal in Edson v Roads & Traffic Authority [2006] NSWCA 68. That case involved a claim for personal injury in negligence arising from an accident when the plaintiff was attempting to cross a freeway. In that case there was evidence of a duty of care in the statutory body responsible for the roadway; that the authority had recognised that the measures in place to stop people crossing the roadway were inadequate; that they had recommended urgent steps be taken; and had not done so. The court was able to find on the evidence the RTA's breach of its duty of care was causative of the injuries sustained by the plaintiff.
In considering the question of whether there is evidence in this case which establishes a prima facie case that a breach of duty by the proposed defendant was a necessary element of the occurrence giving rise to the harm sustained by the plaintiff, I have considered all of the report prepared by Dr Rechnitzer. I have done so in order to comprehend the opinion relied upon by the plaintiff in the broader context of the assessments he has undertaken. The commentary with respect to the design and construction of the intersection is significant. It is not surprising that the plaintiff has become concerned that there is a relevant issue which will be unresolved if the State is not joined as a defendant and able to participate in the proceeding. In pointing to the evidence of Dr Rechnitzer as indicating serious design deficiencies the plaintiff is taking the first step, but he is not thereby establishing the requisite nexus, directly or even inferentially, between those design deficiencies arising from a breach of duty, and his loss. He is not demonstrating a prima facie case for the proposition that the breach of duty alleged against the Department was a necessary element of the occurrence of the loss he suffered.
The plaintiff has not placed before the Court evidence which establishes that the breach of duty was a necessary element of the occurrence of the harm. In other words, factual causation – the nexus between the breach of duty alleged against the State and the accident – is not the subject of any evidence. Accordingly I am not satisfied that the State should be joined in order that I can adjudicate and settle the questions involved in the proceeding. The application is refused.
It is appropriate to say something about the history of the matter, some of which I have set out above, in the context of the submissions made to the Court by the defendants. They rely upon the statements of the High Court in Aon (above). At [4], French CJ said:
"[4] Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted."
The defendants applied those reasons to this case. They submitted that this application was made late in the day; if successful, would necessitate the vacation or adjournment of the date set down for trial; and raised new claims not previously agitated. (It was not suggested that there was any deliberate tactical decision at the heart of that failure to raise the claim. Nor is it suggested that the decision to bring the application now is inadequately explained. Plainly the timing of the application is a product of the delivery of the expert report prepared by Dr Rechnitzer).
I do not think that in this case the Court has adopted "an unduly permissive approach" to the management of the matter. But as I noted earlier, the circumstances giving rise to delays in this case getting to trial are not relevant now to the submission that priority must be afforded to case management considerations in the determination of this application when, after a lengthy delay since the commencement of proceedings, granting it will give rise to further delay. It is the fact that there has been delay that is relevant to the Court. In Aon, the High Court recognised that the common law adversarial system is not one which "permits disregard of undue delay" [24]. The court went on to say at [24]:
"Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502."

At [30] French CJ said:
"It might be thought a truism that 'case management principles' should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."
The High Court in Aon is requiring that case management principles be afforded weight by this Court in the consideration of applications such as this one. It is deprecating the practice of making orders which have the effect of extending the time for compliance with court directions and, at worst, postponing the hearing of an action. Such practices ought be regarded as inconsistent with the principles of modern case management, suited to "a more leisured age": GSI Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 716, per Samuels JA. Which is not to say that there won't be circumstances where an adjournment is appropriate, or a relaxation of timetables necessary. And indeed there will be times where opposing such course is itself inconsistent with proper case management principles, and merely adds to cost. But the practice is one which requires careful supervision, if there is to be obedience to the principles articulated in Aon. This is particularly so with consent applications which require careful scrutiny if those principles are to be observed, as they must be.
As I have noted, much of the delay in this case results from the need to accommodate the circumstances of an unrepresented plaintiff and there is nothing about its management that attracts adverse comment. But such indulgence is not open ended. A court date has been given. As such, even if I was satisfied that there was a prima facie case to the effect that a breach of duty by the Department was an element of the "occurrence of the harm" pleaded, I would not have granted the application. In reaching that conclusion I would have been mindful of the fact that the defendants claim prejudice if there is further delay, a claim that I regard as made out in the circumstances. I would also have been mindful of the fact that the plaintiff would not have lost forever the prospect of bringing an action against the Department, able to avail himself of s 3 of the Wrongs Act 1954.
The State sought costs against the plaintiff. It is not a party to the action so its costs should be determined now. I am satisfied that having succeeded in resisting the application it should have its costs. Costs are to be taxed if they cannot be agreed.
As between the parties to the action, in accordance with r 65 of the Supreme Court Rules, the costs of the application should be costs in the cause.
I certify for counsel.