Vidovich v CHAPLIN-MILLS

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: VIDOVICH -v- CHAPLIN-MILLS & ORS [2009] WADC 13

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 23 JANUARY 2009

DELIVERED : Delivered Extemporaneously on 23 JANUARY 2009 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 1513 of 2002

BETWEEN: NICOLE LEEANNE VIDOVICH
Plaintiff
AND
LORRAINE CHAPLIN-MILLS
First Defendant
THE COMMISSIONER FOR MAIN ROADS
Second Defendant
TOWN OF KWINANA
Third Defendant
ALCOA OF AUSTRALIA LIMITED
Fourth Defendant

Catchwords:

Civil procedure - Pleadings - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr A Castley
First Defendant              :     No appearance
Second Defendant         :     Ms K Norman
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     Bradford & Co
First Defendant              :     Not applicable
Second Defendant         :     Blake Dawson Waldron
Third Defendant            :     Not applicable
Fourth Defendant           :     Not applicable

Case(s) referred to in judgment(s):

Dare v Pulham (1982) 148 CLR 658
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Shire of Brookton v Water Corporation & Ors [2003] WASCA 240

PRINCIPAL REGISTRAR GETHING: On 12 June 1996 the plaintiff was seriously injured in a motor vehicle accident. The motor vehicle accident occurred at the intersection of Abercrombie Road and Anketell Road in Hope Valley (which I will refer to as "the Intersection").
The Intersection had been constructed in the preceding 12 months or so. The plaintiff has sued the driver of the other vehicle, the Commissioner of Main Roads, the relevant local government ‑ the Town of Kwinana ‑ and Alcoa of Australia Limited, who appears to have taken some part in the construction process and who owned the relevant land.
Arising out of case management in the action, the plaintiff has orally applied for leave to substitute the statement of claim. From perusing the file, it appears that, among other amendments, the new statement of claim adds in a considerable volume of particulars based on the discovered documents.
The proposed minute of substituted statement of claim has gone through a number of drafts as the plaintiff has sought to address concerns of the various defendants. The draft minute the subject of the present hearing is a Further Minute of Proposed Substituted Statement of Claim, dated 14 January 2009 and (I will refer to this as "the Minute").
In a previous directions hearing, I was advised from the Bar table that the concerns of the first defendant, third defendant and fourth defendant with earlier drafts of the Minute had been addressed. The present hearing is to address concerns held by the second defendant.
The cause of action against the second defendant is pleaded in some detail with extensive particulars. In summary, the plaintiff’s case is that:
(a)the way in which the Intersection had been constructed created a foreseeable risk of accident to vehicles travelling within the Intersection;
(b)the second defendant had specific knowledge of this risk; and
(c)the second defendant failed to take any, or any appropriate, steps to mitigate the risk of an accident occurring.
The residual concerns of the second defendant have been set out in a facsimile to the plaintiff’s solicitors dated 23 January 2009, which I have been provided with as an aid to understanding the issues in dispute.
Turning to the individual objections, in relation to the allegations in par 3(c), par 3(e), par 5(d), par 6(b) and par 8.2.1 of the Minute, the second defendant has submitted that the plaintiff has not provided any material facts to support the allegation that the second defendant was responsible for, or participated in, the planning and construction of the Intersection.
In dealing with this submission, it is appropriate to note that the key consideration for the court is whether or not the pleading meets its fundamental objective of furnishing a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it. The authority in this proposition is the High Court decision in Dare v Pulham (1982) 148 CLR 658 at 664.
In my view it is clear in these paragraphs that the second defendant knows the case it has to meet. The case it has to meet is that it was responsible for, or participated in, the planning and construction of the Intersection.
In relation to pleadings disputes, there is always a question as to the degree of detail required in order for a party to know the case that it has to meet. In many cases, this means that the dividing line between pleadings, particulars and evidence can be a difficult one to discern. In this case, reading the Minute as a whole, there are very detailed particulars of involvement of the second defendant. In that context, the pleading in the paragraphs to which I have just referred sufficiently sets out the case of the plaintiff for the second defendant to be able to meet it.
The next paragraph challenged is par 3(d) which is a plea that the second defendant contributed funding towards the construction of the Intersection. In relation to this paragraph, the objection is that it is not relevant. In my view it forms part of the background factual matrix from which the court ‑ ultimately the trial Judge ‑ needs to find whether or not there was a duty of care. For that reason it is sufficiently relevant to form part of the plaintiff’s statement of claim.
The next paragraph challenged is par 7 which is a plea that the third defendant, alternatively the fourth defendant, alternatively the second defendant, constructed or caused to be constructed certain earth mounds (referred to in the pleadings) as part of the construction of the Intersection (again referred to earlier).
The objection is that the plaintiff has not provided any material facts to support the allegation that the second defendant had the power, right or obligation to either construct the earth mounds or cause the earth mounds to be removed.
In my view, the pleading sufficiently sets out the case that the second defendant has to meet. It is not generally the function of a pleading to anticipate a possible defence. If it is the case that the second defendant alleges that it does not have the power or the right or the obligation to construct or remove the earth mounds, then it is entirely free to plead that by way of defence. The objection to par 7 is not sustained.
The next two paragraphs objected to are par 8.2 and par 12.3. The objection is that the plaintiff has not provided any material facts to support an allegation that a stop sign was required at the Intersection. In summary terms, the plaintiff’s case is that one reasonable response to the risks identified in the pleadings, in the context of the duty of care, is for either a traffic circle or a stop sign to be constructed at the Intersection. It is not a plea to which there would be direct evidence led as it is in the nature of a finding by the Judge as to what would have been the reasonable response to the risks identified. It may be that expert evidence can assist the Judge in coming to that decision. However, for present purposes, the case that the second defendant has to meet is sufficiently clear. The plaintiff does not have to provide any further material facts to support the allegation.
A similar objection is taken to par 8.2 and par 12.4 in relation to an allegation that a traffic circle was required at the Intersection. Again, for the reasons I have articulated in relation to the allegation as to whether a stop sign was required, the current pleading is sufficient.
There is then an objection taken to par 9 of the Minute which provides that by reason of the matters pleaded in par 2 to par 8, the second, third and fourth defendants had a duty towards persons travelling in vehicles through the intersection. The duty is said to be one to ensure that any one or more of six different steps were undertaken.
The objection here is that the duty of care is to be expressed in general not specific terms, referring to the decisions of Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, the Shire of Brookton v Water Corporation & Ors [2003] WASCA 240 and Roads and Traffic Authority of NSW v Dederer [2007] HCA 42.
In the specific context of this case a statement of a duty of care in general terms is likely to lead to further requests for clarification as to the precise scope of the duty. In that context, it seems to me that the statement of the duty of care in par 9 adequately sets out the case that the second defendant has to meet. If anything, it sets it out in a form that is more prescribed or limiting from the point of view of the plaintiff than a more general statement. As this is to the detriment of the plaintiff, rather than the second defendant, it does not seem to be an appropriate point on which to strike out par 9.
The next paragraph challenged is par 12.1. This is a particular of an allegation that the accident was caused by the negligence of the second defendant, its servants and/or agents. The specific particular is that the second defendant was negligent in that it "authorised, caused, allowed or permitted the intersection to be open to use by the public prior to a safety audit being conducted on the intersection".
The objection taken by the second defendant is that the plaintiff has not provided any material facts to support the allegation that a safety audit was necessary, and that the plaintiff had not pleaded that the second defendant had the power, right or obligation to undertake a safety audit. In relation to the second complaint, it would seem to me more appropriate that the issue of the power, right or obligation to undertake the safety audit be one dealt with by the second defendant in its defence. It is not for the plaintiff to anticipate the defence on this point.
In relation to the material facts, in my view, the extensive pleadings and particulars contained elsewhere in the Minute provide a sufficient factual basis for the pleading. This is also in the nature of a secondary finding to be made by the trial judge as to whether or not conducting a safety audit was an appropriate response to the risks identified.
The next pleading challenged is par 12.5 which is again a particular of the negligence of the second defendant. That particular is that the second defendant was negligent in that it failed to ensure that the earth mounds were removed prior to the Intersection being opened for use by the public. The first ground of objection was that there was no pleading that the earth mounds were present when the road was opened. There is in fact a pleading to the effect that the earth mounds were constructed as part of the construction of the Intersection between 1995 and 1996 contained in par 2(g). That objection falls away.
The second objection is that there is no pleading that the second defendant had the power, right or obligation to move the earth mound. For the reasons earlier set out in relation to earlier pleadings, the second defendant knows the case it has to meet. If its position is that it does not have the power, right or obligation to remove the earth mounds, then it is for the second defendant to raise that by way of its defence.
On that basis the objections taken by the second defendants to the Minute are not sustained. I will hear counsel in relation to the appropriate orders that ought to be made.

[2009] WADC 13

23 January 2009