Thomas v State of Queensland
[2000] QSC 479
•14 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Thomas v State of Queensland [2000] QSC 479 PARTIES: RICHARD CRAIG THOMAS
(applicant/plaintiff)v
STATE OF QUEENSLAND
(respondent/first defendant)
QH & M BIRT PTY LTD ACN 009 963 222
(respondent/second defendant)
TELSTRA CORPORATION LIMITED ACN 051 775 556
(third defendant)FILE NO/S: SC No 556 of 1995 DIVISION: Trial ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 14 December 2000 DELIVERED AT: Brisbane HEARING DATE: 11 December 2000 JUDGE: Williams J ORDER: Grant the plaintiff leave to deliver the further amended statement of claim which is exhibit TPG 21 to the affidavit of T P Galligan filed 31 October 2000;1.
Order that the plaintiff pay the first defendant’s costs of and incidental to the third party proceedings to be assessed;2.
Order that the plaintiff pay the third party’s costs (including costs of appearing on this application) recoverable against the first defendant to be assessed;3.
No order as to costs of the application heard today as between the plaintiff and first defendant.4.
Direct that the amended defence of the first defendant be filed and served by 29 January 2001.5.
CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – plaintiff sustained personal injuries as a result of a motor vehicle collision – where final version of pleading contained allegations different to those made in the initial statement of claim – whether plaintiff should be given leave to deliver further amended statement of claim – whether new pleading sought to be relied upon alleged a new cause of action – claim made by new pleading arose out of “same facts of substantially the same facts” as that pleaded in the initial version – whether there was prejudice to the defendant such that the court ought not in the exercise of its discretion grant leave.
Uniform Civil Procedure Rules 1999 (Qld), r 376, r 389(2)
Cooke v Gill (1873) LR 8 CP 107, applied
Allonor Pty Ltd v Doran [1998] QCA 372 (17 November 1998), applied
Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65, distinguishedCOUNSEL: R J Lynch for the applicant/plaintiff
T W Quinn for the respondent/first defendant
J McIntyre (sol.) for the respondent/second defendantSOLICITORS: Richardson & Lyons for the applicant/plaintiff
Crown Solicitor for the respondent/first defendant
Phillips Fox for the respondent/second defendant
WILLIAMS J: The plaintiff, Richard Craig Thomas, sustained personal injuries when the motor cycle he was riding on 12 June 1993 skidded out of control and then collided with an oncoming vehicle. At the time he was travelling in an easterly direction along the Kennedy Highway, between Mareeba and Kuranda. He blamed his loss of control of the motor cycle on an accumulation of red soil on the bitumen surface of the roadway.
On the Mareeba side of where the incident happened some road works were in progress. Apparently because of that the plaintiff attributed the red soil on the bitumen to be a consequence of those road works.
The plaintiff commenced an action against the defendant, State of Queensland, by writ filed 4 April 1995 on the basis that it was responsible for the construction and maintenance of the road. In the initial statement of claim of 7 August 1995 he alleged that the defendant “was carrying out construction and/or maintenance work” at the point in question and then alleged that the “accumulation of the said soil on the road surface had occurred during the carrying out of the said construction and/or maintenance work by or on behalf of the Department of Transport.”
The defendant, relying on the plaintiff’s allegations, at the time of delivering its defence in October 1995 joined QH & M Birt Pty Ltd as Third Party; that company was carrying out the road work referred to previously on the Mareeba side of where the incident occurred. The plaintiff then took the step of joining the third party as second defendant. In the course of the disclosure process it also emerged that Telstra Corporation Limited was probably associated with some of the work. Therefore the plaintiff joined Telstra as Third Defendant.
As the action progressed and more detailed information became available as to the work being carried out by the second and third defendants, it became obvious that the construction work with which each of them was involved was not a cause of the red dirt being on the roadway at the point in question. Once that became clear the plaintiff commenced steps to discontinue against the second and third defendants. Apparently an arrangement was made with the third defendant in that regard. Because of the complication brought about by the third party proceedings the second defendant remained in the action. However, it was clear that an amended statement of claim would have to be delivered if the action was to proceed any further.
To bring matters to a head the second defendant applied to the court by application filed 28 September 2000 seeking an order that a “final version” of the statement of claim be delivered.
The matter came before me on 16 October 2000 and it was then conceded that the plaintiff would have to seek leave to plead the final version of the statement of claim. Against that background I made an order by consent that the plaintiff serve on the first and second defendants the final version of the statement of claim by 30 October 2000 and further ordered that the plaintiff seek leave to do so prior to 30 October.
In purported compliance with the obligation imposed on him by that order the plaintiff applied for “liberty to take a new step in the action” by application filed 19 October 2000. Initially it appeared that the application was one pursuant to r 389(2) of the Uniform Civil Procedure Rules but counsel for the first defendant conceded that such leave was not necessary. The concession before me on the earlier occasion that leave would be required was apparently based on the stage in the proceeding at which the application was being made and the fact that it may well be contended that the “final version” of the statement of claim raised a cause of action different to that initially pleaded.
Ultimately the only question argued on this application was whether or not the plaintiff should be given leave to deliver the further amended statement of claim a copy of which was exhibit TPG 21 to the affidavit of T P Galligan filed 31 October 2000.
That statement of claim seeks relief only against the defendant, State of Queensland. The action is still one for damages for personal injury arising out of the incident which occurred on the Kennedy Highway on 12 June 1993. It is still alleged that the cause of the plaintiff losing control of his motor cycle was the presence on the roadway of red dirt. The injuries sustained in the incident are as pleaded earlier.
In the “final version” of the statement of claim the allegation is made that the red soil had been deposited on the bitumen carriageway as a consequence of:
“(a)being washed from the surface of a steep 3.5 metre embankment consisting of red soil, the base of which was approximately 0.5 – 1 metre from the left edge of the paved road surface (“the embankment”); and/or
(b)being deposited there by the left side tyres of vehicles which had travelled around the bend after having come into contact with red soil lying between the base of the embankment and the paved surface of the road at on the bend.”
The following relevant particulars of negligence are then alleged in paragraph 7:
“Construction and/or design of the Highway
(a) Allowing, by failing to carry out sufficient excavation at the time the Highway was constructed, the embankment consisting of red soil to be positioned so close to the paved surface of the roadway on the bend that soil could be washed from the embankment onto the road surface;
(b) failing to bind, seal or otherwise deal with the surface of the embankment so as to prevent, or at least inhibit, soil from being washed from it on to the surface of the roadway on the bend;
(c) having regard to the proximity of the embankment to the surface of the roadway on the bend, and the narrowness of the roadway on the bend, failing to pave, seal or otherwise deal with the area lying between the base of the embankment and the roadway so as to prevent, or at least inhibit, soil from being deposited on the surface of the roadway by the left side tyres of vehicles travelling around the bend;
(d) paving the surface of the roadway on the bend with a mixture of bitumen and exposed blue metal aggregate, thereby increasing the potential for vehicles, in particular motorcycles, to lose traction as they travelled around the bend due to the vehicles’ tyres having less contact with the surface area of the roadway than if the roadway had been paved with a flat surface;
Prescription of excessive speed limit
(e) prescribing a speed limit as high as 80 kilometres per hour for vehicles travelling around the bend in the same direction as the Plaintiff was travelling at the time of the collision when it knew, or ought to have known that as a consequence of:
(i) the multiplicity of accidents occurring on the bend between the time of its construction and collision; and/or
(ii) the narrowness of the paved roadway surface on the bend; and/or
(iii) the propensity for soil emanating from the embankment to be present on the surface of the roadway on the bend;
vehicles, in particular motorcycles, travelling around the bend at a speed approximating 80 kilometres per hour were at risk of colliding with vehicles travelling around the bend in the opposite direction.
(f) failing to prescribe any advisory speed limit of less than 80 kilometres per hour for vehicles travelling around the bend in order to reduce the risk of collision between vehicles rounding the bend in opposite directions when it knew, or ought to have known, that as a consequence of:
(i) the multiplicity of accidents occurring on the bend between the time of its construction and collision; and/or
(ii) the narrowness of the paved roadway surface on the bend; and/or
(iii) the propensity for soil emanating from the embankment to be present on the surface of the roadway on the bend;
vehicles, in particular motorcycles, travelling around the bend at a speed approximately 80 kilometres per hour were at risk of colliding with vehicles travelling around the bend in the opposite direction.”
Alternatively to the accident being caused by the red soil, the plaintiff claims that he was travelling at or below the speed prescribed by traffic signs in the locality and that such prescribed speed was too high given the nature of the curve and the road surface. That certainly is something which was not alleged in the initial statement of claim.
In the circumstances counsel for the defendant submitted that r 376 of the UCPR applied because this was an amendment made after the expiration of the relevant limitation period. The first response of counsel for the plaintiff was that the rule did not apply because the “final version” of the pleading did not raise any new cause of action. Alternatively, it was submitted on behalf of the plaintiff that if the pleading did introduce a new cause of action it came within r 376(4)(b), being a cause of action which arose “out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed”. Counsel for the defendant also submitted that in the exercise of the court’s discretion leave ought not be granted because there was evidence of prejudice to the defendant.
Pursuant to the new statement of claim the incident is the same, the immediate cause of the incident (namely the red dirt) is the same, the allegation that the first defendant was responsible for the road way remains the same, and the injuries are the same. It follows, in my view, that the plaintiff has a strong argument that in the light of Cooke v Gill (1873) LR 8 CP 107 at 116 and Allonnor Pty Ltd v Doran (1998) QCA 372 (17 November 1998) the new pleading does not allege a new cause of action, but rather relies on different or additional particulars of negligence. But against that it is clear that the initial statement of claim contended that the dirt on the road was the result of construction work being carried out that very day; that is not the case now relied on. But in the light of all that it seems clear to me that the claim made by the “final version” of the pleading arises “out of the same facts or substantially the same facts” as the cause of action pleaded in the initial version thereof. Cases such as Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65 are clearly distinguishable. Subject to the question of prejudice leave should be granted.
Counsel for the defendant referred to two matters in support of his submission that there was such prejudice here to the defendant that the court ought not, in the exercise of its discretion, grant leave. Firstly, it was said that the road (and embankment) were initially constructed in about 1940 and that the final version of the pleading required consideration of events which occurred approximately 60 years ago. That submission was primarily based on the wording of paragraph 7(a) where the expression “by failing to carry out sufficient excavation at the time the Highway was constructed” is used. However, I would read that as a matter essentially involving an allegation of negligent design and the real negligence lies in maintaining the road in that condition over the intervening years. (The current application does not call for any consideration of misfeasance – nonfeasance in relation to the highway). The plaintiff will ultimately only succeed on that particular if he establishes liability in the defendant because it maintained the road in accordance with the original defective design.
The other alleged prejudice stems from the fact that within about seven weeks of the incident occurring the embankment referred to was demolished. As the road works referred to previously progressed up to the point where the incident happened, that embankment was removed and the road realigned. Photographs were taken on behalf of the plaintiff within a day or two of the accident showing the embankment at the material time. The problems facing both parties because of the removal of the embankment would be exactly the same if this “final version” of the statement of claim had been delivered on 7 August 1995.
In the circumstances I am not persuaded that there is such prejudice as would justify this court, in the exercise of its discretion, refusing leave.
The only other matter relates to the costs of the third party proceedings. Ultimately counsel for the plaintiff conceded that such costs should be paid by the plaintiff as a condition of granting leave. Those costs would include the first defendant’s costs of the third party proceedings and any costs recoverable by the third party against the first defendant. The plaintiff was ordered to pay the costs of the application determined on 16 October 2000. The plaintiff has been successful on this application and, in my view, it always would have been. However, the plaintiff has been responsible for a significant change in direction in the proceedings and I have come to the view that the preferable course is to make no order as to costs of today’s proceedings as between the plaintiff and the first defendant.
The orders of the court will therefore be:
1. Grant the plaintiff leave to deliver the further amended statement of claim which is exhibit TPG 21 to the affidavit of T P Galligan filed 31 October 2000;
2.Order that the plaintiff pay the first defendant’s costs of and incidental to the third party proceedings to be assessed;
3.Order that the plaintiff pay the third party’s costs (including costs of appearing on this application) recoverable against the first defendant to be assessed;
4.No order as to costs of the application heard today as between the plaintiff and first defendant.
5.Direct that the amended defence of the first defendant be filed and served by 29 January 2001.
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