Leyden v Caboolture Shire Council
[2003] QDC 144
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Leyden v Caboolture Shire Council[2003] QDC 144
- Add to List
Leyden v Caboolture Shire Council[2003] QDC 144
Leyden v Caboolture Shire Council[2003] QDC 144
DISTRICT COURT OF QUEENSLAND
CITATION: | Leyden v Caboolture Shire Council [2003] QDC 144 |
PARTIES: | SCOTT RODERICK LEYDEN Plaintiff/Applicant v CABOOLTURE SHIRE COUNCIL Defendant/Respondent |
FILE NO/S: | D 4380/01 |
DIVISION: | Civil |
PROCEEDING: | Application for Judgment |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 3 June 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 May 2003 |
JUDGE: | Boulton DCJ |
ORDER: | Application dismissed with costs |
CATCHWORDS: | Application for judgment – UCPR rr. 166, 190, 292 – test to be applied under r. 292 – deemed admissions not available under r. 166 |
COUNSEL: | Mr DJ Kelly for the applicant |
SOLICITORS: | Carter Capner for the applicant |
- [1]BOULTON DCJ: This is an application filed 9 May 2003 on behalf of the plaintiff. It seeks judgment for the plaintiff against the defendant pursuant to r 292 or r 190 of the Uniform Civil Procedure Rules with damages to be assessed along with costs of and incidental to the application on an indemnity basis.
- [2]The background to the matter is not overly complicated. The plaintiff was born on 20 April 1984 and was injured on or about 15 July 1999 when he was 15 years of age. The action was brought by litigation guardian but he would now have reached his majority.
- [3]The plaintiff suffered injuries when using a BMX track which was located at Bluebell Street Park at Caboolture. The land was under the control of the defendant which had caused the track to be constructed in the first place. It was aware that members of the public and persons such as the plaintiff used the track for recreational BMX bicycle riding and consented to such use. The track was of earth construction and had a number of earthen mounds constructed which acted as bicycle jumps.
- [4]Following the accident the plaintiff’s solicitors wrote to the defendant on 21 September 1999 notifying it of the plaintiff’’s injuries and claiming that they were caused by the negligence of the defendant in relation to the erection, care and maintenance of the bike jump. The letter foreshadowed the institution of proceedings but allowed time for the matter to be investigated. The Council responded on 22 September 1999 saying that they had investigated the track and could not find defective or poorly maintained structures or bike jumps. On 7 October 1999 they sought on a without prejudice basis certain details concerning the plaintiff and on 29 December 1999 announced that they had completed their investigations. They repeated the assertion that the track appeared to be in good condition having been constructed initially in accordance with a design prepared by engineers and therefore denied liability.
- [5]Proceedings were commenced on 10 September 2001. The contentious paragraphs of the statement of claim are paragraphs 5, 6 and 7. Paragraph 5 alleges that in or about June 1999 the third of the jumps was altered by persons other than the plaintiff. Paragraph 6 alleges that on or about 15 July 1999 the plaintiff was using the track and was attempting to jump the third of the jumps on his BMX bicycle when injured. Paragraph 7 alleges negligence on the part of the defendant particularly related to the alteration of the third jump which posed a risk of injury to persons such as the plaintiff and suggested an absence of reasonable care on the part of the defendant in failing to detect the risk and take appropriate measures to eliminate it.
- [6]In its defence filed on 14 December 2001 the defendant respondent to the abovementioned paragraphs as follows:
“5. The defendant does not admit the allegations in paragraph 5 of the statement of claim, as it is making ongoing inquiries and is yet to establish the truth or otherwise of those allegations.
- The defendant does not admit the allegations in paragraph 6 of the statement of claim, as this is a matter which is solely within the knowledge of the plaintiff and the defendant has no knowledge or means of knowledge of those matters.
- The defendant does not admit the allegations in paragraph 7 of the statement of claim, as it is making ongoing inquiries and is yet to establish the truth or otherwise of those allegations.
Apart from an unsuccessful reference to mediation which occurred between 9th and 12th May 2003 no other steps have been taken in the proceedings.
- [7]Mention should be made, however, of an expert report prepared on behalf of the plaintiff’s solicitors and dated 6 February 2001. That report is Exhibit B to the affidavit of Christopher Gillott filed on behalf of the plaintiff. A copy of this report was provided to the defendant under cover of a letter dated 27 March 2002.
- [8]Mr King, in his report nominates the final jump which is depicted on the plan (Figure 3) as the scene of the accident involving the plaintiff. According to the report this jump was initially described as a table jump similar to that depicted in Figure 5 of the report but according to Mr King it had been altered a short while prior to the accident to become a twin peak jump. It is depicted in Figures 7 and 7a of the report.
- [9]Despite the fact that the report identifies the scene of the accident as the last jump rather than the third jump the plaintiff has taken no steps to amend the statement of claim filed on 10 September 2001. Indeed it is somewhat odd that the pleading was framed in this way considering that the Intersafe report and its amendment had been obtained by the plaintiff’s solicitors in February of that year.
- [10]The report raises not only the question of unauthorised alteration of the jumps but also questions of design and general maintenance along with the question of access for emergency vehicles. A perusal of the report would suggest the likelihood that at least some of these issues would find their way into an amended statement of claim. Again I find it somewhat puzzling that the plaintiff’s solicitors by letter dated 21 December 2001 should be seeking an amended defence from the defendant when the statement of claim was heavily focussed upon alleged defects in the third jump which were known to be incorrect by the plaintiff’s solicitors.
- [11]The unsuccessful mediation occurred on 8 May 2003. The plaintiff’s solicitors filed this present application on the following day, 9 May 2003. On the Monday 12 May 2003 the defendant’s solicitors wrote to the solicitors for the plaintiff advising that counsel was settling an amended defence. On 14 May 2003 the defendant’s solicitors were served with the present application and supporting affidavit along with a letter objecting to any amendments which would amount “to a withdrawal of one of the deemed allegations contained in your current defence”. Presumably this was meant to refer to deemed admissions. Attempts to secure an amended statement of claim thereby forestalling the need for the present application were unsuccessful.
- [12]The application is an application for summary judgment and proceeds on two bases. It will be convenient to refer first to r 292 of the UCPR which is in the following terms:
“292(1) A plaintiff may at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
- (2)If the court is satisfied that –
- (a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
- (b)there is no need for a trial of the claim;
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- [13]This rule has been considered on a couple of occasions at least by the Queensland Court of Appeal in the last 12 months. In Queensland University of Technology v Project Constructions (Aust) P/L (In Liq) & Anor (2002) QCA 224 Holmes J in the leading judgment of the court applied the “no real prospect of succeeding” test. In another judgment a few days later Bernstrom v National Australia Bank Limited (2002) QCA 231 the leading judgment of the court was given by Jones J with whom McMurdo P and Cullinane J agreed. The court applied the reasoning of the Court of Appeal (UK) in Swain v Hillman which was expressed as follows:
“... the court now has a very salutary power, both to be exercised in the claimant’s favour of, where appropriate, in the defendant’s favour. It enables the court to dispose summarily on both claims or defences which have no real prospect of being successful. The words “no real prospect of succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.”
- [14]It only requires a moment’s reflection on the facts to conclude that this section has no application whatsoever to the present case. Leaving aside the confusion surrounding the identification of the particular jump where the accident occurred which is likely to be of some significance, there is the obvious consideration that this activity was plainly hazardous and relied to a considerable extent on the judgment and skills of the participant. It also appears that he had successfully negotiated the jump on two occasions prior to the occasion when the accident occurred so that it might be argued that he had an opportunity to appreciate the configuration of the jump prior to his third approach. One need not multiply such observations. The submission that summary judgment might be available to the plaintiff under r 292 is fanciful.
- [15]The second ground for the application is based upon r 190 of the UCPR which is in part as follows:-
“190(1) If an admission is made by a party, whether in a pleading or otherwise after the start of a proceeding, the court may, on the application of another party, make an order to which the party applying is entitled on the admission.
- (2)The court may give judgment or make another order even though other questions in the proceeding have not been decided.”
- [16]The plaintiff then relies upon r 166 of the UCPR which is in part as follows:
“...
- (3)A party may plead a non-admission only if –
- (a)the party has made inquiries to find out whether the allegation is true or untrue; and
- (b)the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the pleading in which the denial or non-admission of the allegation is contained; and
- (c)the party remains uncertain as to the truth or falsity of the allegation.
- (4)A party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.
- (5)If a party’s denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.
- (6)A party making a non-admission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.
...”
- [17]It seems that following notification of the accident in mid-1999 the Council conducted an on-site inspection of the track which in its opinion revealed no hidden danger. This was notified by letter of 29 December 1999 when liability was denied. There would seem to have been an earlier inspection of the track resulting in a letter of 22 September 1999 which failed to identify defective or poorly maintained structures or bike jumps.
- [18]It does not appear that the Council has witnesses to the alteration of the jump alleged in paragraph 5 of the statement of claim or to the injury suffered by the plaintiff in paragraph 6. At paragraph 7, the allegation of negligence is dependent on paragraphs 5 and 6. In the absence of evidence to support or contradict the allegations in paragraphs 5 and 6 it is difficult to see how the defendant could do anything other than plead a non-admission. The explanations contained in paragraphs 5 and 6 of the defence are eminently reasonable. To say that the earlier inspections of the track in September and December 1999 would shed light on these issues thereby enabling the defendant to plead differently is a nonsense.
- [19]It follows that there are no deemed admissions pursuant to r 166 and therefore no basis for a judgment under r 190. The application is absolutely without merits and should be dismissed with costs to be assessed.