Read v State of Queensland[2016] QDC 107

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the plaintiff under rule 376(4) Uniform Civil Procedure Rules 1999 (“UCPR”) for leave to amend the Statement of Claim or alternatively for leave under s 31 of the Limitation of Actions Act 1974 to commence proceedings in respect of the additional causes of action identified in paras 5A, 7(e) – (h) and 7B of the amended Statement of Claim filed 21 October 2015. The application is opposed by the defendant. The Claim and Statement of Claim were filed on 19 September 2013. The limitation period expired on 23 September 2013. The plaintiff’s application to amend was filed on 29 March 2016.

2. [2]
   The plaintiff was injured on 9 January 2009 in a single vehicle accident on the Bruce Highway in the vicinity of Josephine Creek about 5kms south of Miriwinni. The claim, as initially pleaded in para 5 of the Statement of Claim, alleged that it was raining heavily at the time and the road was covered with water. The plaintiff’s vehicle hit a dip in the road which was obscured by water and this caused the plaintiff to lose control of his vehicle which veered left, slid down the road and crashed into a bridge guard rail injuring the plaintiff. It is further alleged that the dip caused an excessive amount of water to pool on the road during heavy rain and was a hazard to road users. It is alleged that the dip had been caused by the manner in which the defendant had designed, constructed, maintained and repaired the road. After the accident the defendant resealed the road at the dip so as to eliminate the dip and it is alleged that had the defendant done so prior to the accident, the accident would not have occurred.

3. [3]
   The initial particulars of negligence and/or breach of duty relied on by the plaintiff are four in number. The pleading is as follows:

7. “7.
   The incident and its consequences were caused by the negligence and/or breach of duty of the Defendant, its employees and agents:

Particulars

1. (a)
   Failing to ensure that the road was reasonably safe for use by road users such as the Plaintiff, especially in periods of heavy rain.

2. (b)
   Exposing the Plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care by the Defendant in the design, construction, maintenance and repair of the road.

3. (c)
   Designing and constructing and/or maintaining the road so that it contained the dip, which was an unnecessary and unreasonable hazard on the road in the circumstances.

4. (d)
   Failing to ensure appropriate speed limits and warning signs were in place to reduce the risk of injury to road users, such as the Plaintiff, especially during wet weather.”

Sub-paras (a) and (b) are expressed in fairly general terms but are effectively particularised by the allegation in sub-para (c).

The defendant denies these allegations. In particular, it denies there was a dip in the road and says there were no surface or drainage deficits which required intervention. The road was resealed on 8 August 2013 in the normal course of events, not because of the plaintiff’s accident or any alleged surface or drainage defects.

4. [4]
   The plaintiff’s case was said to be initially supported by an engineering report by John Ruller dated 24 January 2012.

5. [5]
   Following the completion of disclosure by the defendant on 8 January 2015 the plaintiff obtained another engineering report, this time by Nigel McDonald. It is dated 20 May 2015. For the purposes of the alternative application it is said that this report contains material facts of a decisive character not previously within the means of knowledge of the plaintiff because they came from documents progressively disclosed by the defendant.

6. [6]
   The case now advanced by the plaintiff is said to be supported by the new engineering report and contains the allegations made in paras 5A, 7(e) – (h) and 7B of the amended Statement of Claim.

7. [7]
   Mr Mullins for the plaintiff submitted that these additional allegations are simply part of the case already pleaded (referring in particular to the generality of expression in paras 7(a) and (b) and 5(g) of the Statement of Claim).^[1]  Alternatively, in terms of rule 376(4) UCPR, if they do involve a new cause of action, that new cause of action arises out of the same facts or substantially the same facts as the original cause of action and for these reasons the amendments should be allowed notwithstanding the expiration of the limitation period.

8. [8]
   Mr McDonald’s conclusions are expressed in the Executive Summary to his report and in paras 3.8 – 3.14 and 5.63 – 5.69 of his report. I need not repeat the details here. I’m told that the first dot point in the Executive Summary relates to the area of the alleged dip in the road (see also paras 3.11 – 3.14) but originally “flushing” or “bleeding” at or near a point of the dip was not relied upon as a cause of the accident. It is specifically relied on in new paras 5A(f), (g), (h) and (i), 7(g) and 7B(a). Inadequate skid resistance is now relied upon but in relation to a much larger section of the road than just the dip. The amendments also rely on motor vehicle crashes “in the region” or “in the vicinity of the incident” in 1999, 2001, 2004, 2005, 2006, 2007 and 2008 even though Mr Mullins said he couldn’t say that they were caused by the state or condition of the road. Mr McDonald said that they indicated a problem with the road (paras 5.37 and 5.43 – 5.45). Following an earlier reseal of the road in 2004 the number of crashes increased which, according to Mr McDonald, indicated a problem with the road which warranted investigation. Mr Mullins put it this way: rather than saying there’s something wrong with the 2004 resealing, there was something about the road that needed repair following the resealing.^[2]  These crashes did not occur at the dip but within 500 metres of the dip but not closer than 350 metres and over a 370 metre length of the road.

9. [9]
   Road surface roughness data was also considered by Mr McDonald^[3] and he suggests that roughness in the vicinity of the accident site “exceeded the likely investigatory and possibly intervention level” and therefore may have warranted attention by the road authority. Mr Mullins referred to this issue to assist in understanding the change/s to the plaintiff’s case and not because any new claim was being made in respect of it. No facts in relation to road surface roughness are alleged in the amended Statement of Claim, nor do the proposed amendments to the Statement of Claim allege negligence against the defendant as a result of road surface roughness or anything connected with that issue. Mr Mullins said this issue comes within the ambit of the existing claim as it is at “the point of the dip or in the vicinity of that point”.^[4]

10. [10]
    The defendant’s opposition to the plaintiff’s applications was summarised at an early stage in a letter from the Crown Solicitor to the plaintiff’s solicitors dated 16 December 2015.

11. [11]
    The expanded case of the plaintiff relies on flushing or bleeding, inadequate skid resistance and crashes indicating something was wrong with the road. The breaches of duty now alleged are, in my view, quite different from those initially relied upon. They involve much more than a poorly designed hazardous dip in the road. They amount to more than further particularisation of the original claim and they do not arise out of the same facts or substantially the same facts as the original cause of action. Although the duty of care is the same the amendments allege different breaches of that duty and different causes of injury.^[5]

12. [12]
    The breaches of duty alleged in the amendments are quite distinct from those initially pleaded. By way of example, the plaintiff seeks now to allege a breach by the defendant of the 2006 Skid Resistance Management Plan, something which was not mentioned at all in the original Statement of Claim nor were other vehicle crashes and the inferences sought to be drawn from them. The amendments require the plaintiff to prove distinct and different cases of fault on the part of the defendant.^[6]

13. [13]
    On balance I am satisfied that what is relied on in the amendments are new causes of action notwithstanding that the part of the roadway relied upon originally is included in the roadway referred to in the amendments. I am not satisfied that the new causes of action are of substantially the same story with additional facts and a change of or expanded focus.^[7]  The plaintiff must therefore rely on s 31 of the Limitations of Actions Act 1974 to add the new causes of action.

14. [14]
    Section 30(1)(a)(i) of the Act provides that a material fact relating to a right of action includes “the fact of the occurrence of negligence… or breach of duty on which the right of action is founded”.

15. [15]
    I accept that the discovery of expert evidence to prove a case on liability has been held to be a material fact of a decisive character.

16. [16]
    There is a “distinction between knowledge someone has caused an injury and knowledge that that person has caused it negligently”.^[8]  In the present case the latter knowledge is said to come from the defendant’s disclosure of documents relied upon by Mr McDonald for the opinions expressed in his report dated 20 May 2015. The facts now relied on by the plaintiff were not within his knowledge or means of knowledge until the report of Mr McDonald was to hand.

17. [17]
    The plaintiff had, in my view, taken all reasonable steps up until then to ascertain relevant facts. Disclosure by the defendant was drawn out^[9] and I accept that all of the relevant documents relating to the design, maintenance and construction of the roadway were not disclosed during the course of the PIPA process.^[10]  I also accept that the only method the plaintiff had to obtain that information was through the defendant.^[11]  It is not without relevance also that the defendant does not seem to have objected to making overly generous disclosure based on the original Statement of Claim.

18. [18]
    The plaintiff says that information relating to flushing or bleeding, skid resistance testing and crash data was all in the defendant’s possession and he was not able to make a qualified judgment about its meaning until he had an expert opinion.^[12]  With one exception I agree.

19. [19]
    The exception relates to the “new” allegations involving flushing and bleeding. The relevance of this was clearly raised in the report of Mr Ruller^[13] and was thus within the knowledge of the plaintiff then. It was not relied upon in the original Statement of Claim as a possible cause of the accident and it is now too late to do so. I agree with Mr Fitzpatrick that Mr Ruller’s report “which pre-dated the expiration of the limitation period… plainly identified the area of flushing as a potential defect having causative involvement in the plaintiff’s loss of control of his motor vehicle. The lack of reliance on flushing in the original Statement of Claim evidences a decision by the plaintiff, in consultation with his solicitors, not to pursue that case within the limitation period. The factual treatment of flushing is neither different nor more extensive, in Mr McDonald’s report”.^[14]  For these reasons the amendments relying on flushing or bleeding will not be allowed.

20. [20]
    In the case of the other amendments the defendant relies on prejudice and makes reference to Brisbane South Regional Health Authority v Taylor.^[15] 

21. [21]
    Mr Fitzpatrick submits that the effect of the proposed amendments, coupled with re-surfacing which took place in August 2013, is that the defendant has been deprived of the opportunity to test the road surface, thereby suffering actual prejudice. Prejudice should also be presumed as a result of the need for the defendant to examine the circumstances of other motor vehicle accidents extending back to 12 October 1999.^[16]

22. [22]
    In relation to the crashes, any possible prejudice is, in my view, offset by the inability of the plaintiff to prove that the condition of the road caused them and by the fact that information about them comes from the defendant. In relation to the five crashes following the 2004 reseal, three occurred on a wet road. Of the two crashes on a dry road, one involved an alcohol impaired driver. Stated otherwise, there was one wet pavement crash per annum.^[17]

23. [23]
    The existence and contents of the Skid Resistance Management Plan produced in 2006 is a fact, as is the fact that the defendant did not conduct skid resistance testing on the road in the vicinity of the accident between 2004 and 2009 in accordance with the Plan. Mr McDonald refers to the absence of skid resistance testing at the same time that annual roughness surveys were undertaken as well as weekly visual surveys of the road condition.^[18]  He also concedes that in the circumstances it is “not possible to comment quantitatively on skid resistance other than to make the observation that there was a cluster of wet pavement crashes (3 only) and that wet pavement crashes dominate the recorded crash history”.^[19]  Those are accepted facts. Thereafter the plaintiff relies on inferences it submits can be drawn from those facts.

24. [24]
    I appreciate that long delay between the conduct complained of by the plaintiff in the amendments and 13 January 2016 when the amended Statement of Claim was filed, may give rise to a general presumption of prejudice, but having regard to what is in fact relied on by the plaintiff in the amended Statement of Claim, I think the likelihood of prejudice is minimal. On balance I consider the defendant may still have a fair trial of the action notwithstanding the extension of the limitation period.

25. [25]
    For these reasons the limitation period for the new causes of action, excluding that relying on flushing or bleeding, will be extended to 20 May 2016.

26. [26]
    In relation to costs, the plaintiff has failed on the two of three grounds argued for allowing the amendments and partially succeeded on the third. Argument on the limitation point did not, in my view, prolong the hearing of the application or increase costs nor does the result warrant an apportionment of costs. On balance I consider that the defendant has been much more successful than the plaintiff and that the plaintiff should pay the defendant’s costs.

Order

27. [27]
    The plaintiff’s application to amend the Statement of Claim generally and based on rule 376 will be dismissed. The limitation period for the new causes of action relying on skid resistance and vehicle crashes will be extended to 20 May 2016. Leave is given to the plaintiff to file and serve a further amended Statement of Claim to reflect these reasons within 14 days of today and for the defendant to file and serve a further amended Defence. The plaintiff is to pay the defendant’s costs of and incidental to the application filed 29 March 2016, to be assessed on the standard basis unless agreed.