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CITE

Unreported Judgment

O'Keefe v State of Queensland[2017] QDC 306Reid DCJ
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O'Keefe v State of Queensland[2017] QDC 306

DISTRICT COURT OF QUEENSLAND

CITATION:	O'Keefe v State of Queensland & Redland City Council [2017] QDC 306
PARTIES:	DALE MAREE O'KEEFE (Respondent/Plaintiff) v STATE OF QUEENSLAND (First Defendant) REDLAND CITY COUNCIL (Applicant/Second Defendant)
FILE NO/S:	1567/15
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	15 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2017
JUDGE:	Reid DCJ
ORDER:	The application to strike out parts of the Amended Statement of Claim is dismissed. The Plaintiff provide the particulars of the Amended Statement of Claim requested in paragraphs 4(b), 5, 7, 9, 10, 11, 12 and 13 of the second Defendant’s Request for Particulars of 13 June 2017. The Plaintiff pay the Defendant’s costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	APPLICATION – NEGLIGENCE – where accident occurred at an intersection controlled by local authority and State of Queensland – where an application to strike out paragraphs of the Amended Statement of Claim or alternatively for further and better particulars – whether a failure to plead all matters of fact – whether particulars inadequate Bruce v Odhams Press Ltd (1936) 1 KB 697 Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209
COUNSEL:	J T Dillon for the Applicant J Sewell for the Respondent
SOLICITORS:	King and Company for the Applicant Slater and Gordon for the Respondent

Introduction

[1]
This is an application by the second defendant to strike out paragraphs 7, 8 and 9 of the Amended Statement of Claim pursuant to Uniform Civil Procedure Rules, r 171. Those paragraphs relate to the alleged liability of the second defendant, a local authority having control of some roads within its local authority area, for the consequences of a motor vehicle accident in which the plaintiff was involved. The accident occurred at the intersection of a road controlled by the applicant, and a major road controlled by the State of Queensland who is the second defendant in the action but was not a party to the application.

[2]
Alternatively to the strikeout orders, the applicant seeks an order requiring the respondent to provide particulars of the Amended Statement of Claim as requested by the applicant on 13 June 2017. The particulars sought are those referred to in paragraphs 4(a), 5, 7, 9, 10, 11, 12, 13 and 14 of the request. The particulars requested relate to the same paragraphs of the amended statement of claim as are sought to be struck out. The request is part of Exhibit LASV2 to the certificate of exhibit to the affidavit of Lucinda Veldman filed 22 May 2017.

[3]
The application in fact also sought to strike out paragraph 10 of the Amended Statement of Claim. In fact the applicant wish to refer to paragraph 12 thereof. I gave the applicant leave to amend the application to correct this mistaken reference to paragraph 10 of the Amended Statement of Claim in its application. The problem with paragraph 12 of the Amended Statement of Claim was that it referred to general damages being assessed pursuant to Schedule 9 of the Workers Compensation and Rehabilitation Regulation 2014. That issue was resolved by my giving the plaintiff leave to amend paragraph 12 of the Amended Statement of Claim by deleting reference to that Act and substituting reference to the Civil Liability Regulation. The issue was entirely inconsequential and could readily have been corrected by correspondence between the parties.

[4]
The plaintiffs opposed the application to strike out (or, alternatively, to give particulars of) paragraphs 7, 8 and 9 of the Amended Statement of Claim.

Background

[5]
The pleadings disclose the plaintiff was injured on 21 April 2012. She was driving in a generally southern direction on Willard Road towards the intersection of Finucane Road. Finucane Road is a main road consisting of two lanes in each direction. The roads form a T-intersection such that vehicles in Willard Road must turn either right or left and so enter Finucane Road. The road was not controlled by traffic lights.

[6]
The plaintiff alleges in paragraph 2(e) of the Amended Statement of Claim that:

“The view from Willard Road at the Intersection of traffic traveling[sic] in the east-bound lanes of Finucane Road was obscured by the topography of Finucane Road (a crest) and the curvature of the roadway.”

[7]
It is further alleged by the plaintiff that the first defendant had “care and control of Finucane Road at the intersection” and that the second defendant had “care and control of Willard Road at the intersection”. It seems common ground that Willard Road is controlled by the second defendant, but that Finucane Road, being a main road, was controlled by the State of Queensland.

[8]
It is alleged that on 21 April when the plaintiff’s vehicle reached the intersection she began to turn right across the east-bound lanes of Finucane Road and was struck on the driver’s door by a vehicle travelling east on Finucane Road. The allegations relating to the liability of the second defendant are set out in [7] – [9] of the amended statement of claim as follows:

“Liability of the second defendant

7.The Motor Vehicle Accident was caused by the second defendant's breach of the duty owed to the plaintiff as follows:

a) Permitting drivers to execute a right turn from Willard Road across the east-bound lanes of Finucane Road when it was unsafe to do so in circumstances in which the second defendant knew or ought to have known that it was unsafe for drivers to execute a right turn from Willard Road across the east-bond lanes of Finucane Road;

b) Failing to modify the Intersection so as to prevent drivers executing a right turn from Willard Road across the east-bound lanes of Finucane Road in circumstances in which the second defendant knew or ought to have known that there had been previous motor vehicle accidents involving drivers executing a right turn from Willard Road across the east-bound lanes of Finucane Road;

c)Failing to install traffic lights at the Intersection;

d)Failing to ensure drivers executing a right turn from Willard Road across the east-bound lanes of Finucane Road had an unencumbered view of traffic approaching on Finucane Road;

e) Failing to conduct any, or any adequate, inspection of or risk assessment with respect to the Intersection;

f)Failing to respond to prior complaints by members of the public about the dangerous nature of the Intersection;

g)Failing to respond to prior accidents which occurred as a result of drivers executing a right turn from Willard Road across the east-bound lanes of Finucane Road;

h) Exposing the plaintiff to risks of injury about which the second defendant knew, or ought to have known;

i)Exposing the plaintiff to an unreasonable an avoidable risk of injury; and

j)Failing to take any, or an adequate, precautions for the plaintiff’s safety.

8.It was reasonably foreseeable that the conduct of the second defendant as pleaded at subparagraphs 7(a) to 7(j) herein would cause the plaintiff to sustain personal injury.

9.As a result of the second defendant’s negligence which caused the Motor Vehicle Accident, the plaintiff suffered personal injury and damages.”^[1]

[9]
In its defence the second defendant pleads:

"9.The Second Defendant denies the allegations contained in paragraph 7 of the Amended Statement of Claim, believing the allegations to be untrue, on the basis of the direct explanation that:

(a)
the Second Defendant did not breach the duty of care it owed to the Plaintiff;

(b)
the area comprising the road reserve of Finucane Road, including the part of Willard Road that intersected with Finucane Road, was not within the control of the Second Defendant;

(c)
the Second Defendant reasonably had no knowledge of the circumstances pleaded in paragraph 7a) of the Amended Statement of Claim;

(d)
the Second Defendant had no legal authority to modify the Intersection, to install traffic lights at the Intersection or to conduct risk inspections or risk assessments with respect to the Intersection;

(e)
the Second Defendant is unable to plead to the allegation that it knew, or ought to have known, there had been previous motor vehicle accidents of the nature alleged in paragraph 7b) of the Amended Statement of Claim until such time as the Plaintiff provides adequate particulars of that allegation;

(f)
the Second Defendant had no legal authority to ensure drivers executing a right turn from Willard Road across the east-bound lanes of Finucane Road had an unencumbered view of traffic approaching on Finucane road, and further is unable to plead to that allegation as it does not know what is meant to be the term “unencumbered view”;

(g)
the Second Defendant is unable to plead to the allegations of failing to respond to prior complaints by members of the public alleged in paragraph 7f) of the Amended Statement of Claim and paragraphs 7 and 8 of the Particulars served 19 September 2017 until such time as the Plaintiff provides adequate particulars of that allegation;

(h)
the Second Defendant is unable to plead to the allegation that the Second Defendant failed to respond to the prior accidents that are alleged in paragraph 7g) of the Amended Statement of Claim and paragraph 9 of the Particulars served 19 September 2017 until such time as the Plaintiff provides adequate particulars of that allegation

(i)
the Second Defendant did not expose the Plaintiff to an unreasonable and avoidable risk of injury;

(j)
the Second Defendant is unable to further plead to the allegation that it exposed the Plaintiff to the risk which are alleged in paragraphs 7h) and 7i) of the Amended Statement of Claim and paragraphs 10 and 11 of the Particulars served 19 September 2017, until such time as the Plaintiff provides adequate particulars of that allegation;

(k)the Second Defendant did not fail to take any, or any adequate, precautions for the Plaintiff’s safety;

(l)the Second Defendant is unable to further plead to the allegation that it failed to take the precautions which are alleged in paragraph 7j) of the Amended Statement of Claim and paragraph 12 of the Particulars served 19 September 2017 until such time as the Plaintiff provides adequate particulars of that allegation.

The Second Defendant denies the allegations contained in paragraph 8 of the Amended Statement of Claim and paragraph 13 of the Particulars served 19 September 2017, believing them to be untrue, on the basis of the following direct explanation;

(a)
the only conduct of the First Defendant pleaded in sub-paragraphs 7a) to 7j) is that pleaded in paragraph 7h), and the allegation is embarrassing and liable to be struck-out; and

(b)
because of the mattes set out in paragraph 9 of this Defence.

The Second Defendant denies the allegation contained in paragraph 9 of the Amended Statement of Claim and paragraph 14 of the Particulars served 19 September 2017, believing them to be untrue, by reason of the direct explanation:

(a)
the Second Defendant was not negligent;

(b)
in the alternative, any negligence on the part of the Second Defendant did not cause the Motor Vehicle Accident, the Motor Vehicle Accident being caused by the negligence of the Plaintiff or the driver of the oncoming vehicle, or both.”

[10]
Rule 171 of the Uniform Civil Procedure Rules provides:

“171Striking out pleadings

(1)
This rule applies if a pleading or part of a pleading—

(a)
Discloses no reasonable cause of action or defence; or

(b)
Has a tendency to prejudice or delay the fair trial of the proceeding; or

(d)
Is frivolous or vexatious; or

(e)
Is otherwise an abuse of the process of the court.

(2)
The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
(3)
On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

[11]
The second defendant’s counsel submits that the plaintiff’s pleading does not comply with the requirements of rules 149 and 157 of the Uniform Civil Procedure Rules which provide:

“149Statements in pleadings

(1)
Each pleading must—

(a)
Be as brief as the nature of the case permits; and

(b)
Contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and

(d)
Subject to rule 156, state specifically any relief the party claims; and

(e)
if a claim or defence under an Act is relied on—identify the specific provision under the Act.”

“157Particulars in pleading

A party must include in a pleading particulars necessary to—

(a)
Define the issues for, and prevent surprise at, the trial; and

(b)
Enable the opposite party to plead; and

[12]
In relation to Rule 171 the Court of Appeal in Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at 16 said:

“Rule 171 closely resembles the language of former O 22 r 32 Rules of the Supreme Court 1991 (Qld) which enabled a judge to strike out or amend any matter in the pleading which tended “to prejudice, embarrass, or delay, the fair trial of the action”. The word “embarrass” has not been retained. Nonetheless any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding rather than “embarrass” the opposite party.”

[13]
It can be seen that the impugned paragraphs, being [7], [8] and [9] of the Amended Statement of Claim, alleged the plaintiff was injured because the second defendant breached its duty of care owed to the plaintiff, a driver of a vehicle turning right from Willard Road into the west-bound lanes of Finucane Road, at a time when the second defendant was responsible for Willard Road as part of its local authority functions. The second defendant alleges that the particular paragraphs of the amended statement of claim:

“fail to plead all matters of fact and state all matters which, if not stated, will take the second defendant by surprise.”

[14]
In particular it is said that the Amended Statement of Claim does not articulate:

(1)
The scope of the Second Defendant’s duty;

(2)
The risk the Second Defendant was required to take precautions against;

(3)
How the Second Defendant breached its duty;

(4)
How the alleged breach caused the plaintiff’s injury.

[15]
The Plaintiff’s Amended Statement of Claim and the particulars provided, show the Plaintiff’s case can fairly be summarised in this way;

(1)
That the Second Defendant, being the local authority having responsibility for Willard Road failed to modify the intersection to prevent drivers turning right, as the Plaintiff did; and

(2)
That the Second Defendant knew, or ought have known, that the manoeuvre the plaintiff was performing was dangerous;

(a)
because of complaints to it by members of the public; and/or

(b)
because of prior accidents involving drivers performing the same manoeuvre

[16]
Perusal of the amended statement of claim also shows that in each of paragraphs 7(a), 7(f), 7(g) and 7(h) the plaintiff alleges that the Second Defendant ought have known the right turn manoeuvre the Plaintiff was executing was unsafe without particularising how it was unsafe or how the Second Defendant knew that to be so other than, in paragraph 7(b), alleging that there had been prior motor vehicle accidents in circumstances where a driver was performing the same manoeuvre the Plaintiff was undertaking and of which the Second Defendant knew or ought have known. The Plaintiff does not however identify how the Second Defendant ought to have known that fact or how it knew or ought to have known of any accidents at the intersection.

[17]
In Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209 White J said that “material facts”, as used in Rule 149 of the UCPR, were facts “necessary for the purpose of formulating a complete cause of action”. She said at [35] that Rule 157 of the UCPR obliges a party to include in a pleading particulars necessary to;

“(a)define the issue for, and prevent surprise at, the trial; and

(b)
enable the opposite party to plead; and

[18]
Her Honour at [35] of her judgment quoted with approval observations of Scott LJ in Bruce v Odhams Press Ltd (1936) 1 KB 697 at 712-713 that:

“The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.”

[19]
Importantly at [38] Her Honour said;

“More generally, the purpose of pleadings is to inform the opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed. Furthermore, the defendant cannot be expected to intuit what the plaintiff intends to convey in its pleadings by its own understanding of the facts and circumstances giving rise to the litigation. That would be a certain path to disaster.”

[20]
In my view this is not a case where the Plaintiff has failed to plead material facts. It has alleged;

(1)
That Finucane Road formed a T-intersection with the southern end of Willard Road;

(2)
That drivers in Willard Road at the intersection were permitted to execute a right turn onto Finucane Road across the east-bound lanes of Finucane Road;

(3)
That the view from Willard Road at the intersection was obscured by the topography of Finucane Road (a crest) and the curvature of the roadway

(4)
That the second defendant had “care and control of Willard Road at the Intersection” and owed the Plaintiff, as a lawful user of Willard Road, “a duty to take all reasonable precautions to prevent the plaintiff sustaining personal injuries at the Intersection”;

(5)
That on 21 April the plaintiff was driving in a generally southerly direction on Willard Road when she began to execute a right turn across the east-bound lanes of Finucane Road at which time she was struck on the driver’s side door by a vehicle travelling on Finucane Road;

(6)
That the accident was caused by the second defendant’s breach of duty;

(7)
That she thereby personal injury loss and damage.

[21]
The essential facts of the case have been pleaded. Consequently, the application to strike out the Amended Statement of Claim should fail.

[22]
However the particulars provided of the paragraphs complained of are generally inadequate. They do not enable the second defendant to know the case it will be required to meet at trial. They do not, to adopt the words of Scott LJ “fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.” In particular the plaintiff’s particulars to which objection has been taken, in [4(a)], [5], [7], [9], [10], [11], [12], [13] and [14] of its Request for Particulars, have not been adequately addressed.

[23]
In order to consider these matters it is necessary to set out those requests for particulars, and the plaintiff’s response. The relevant request, and the responses thereto are set out seriatim.

Request (4)

“As regards to paragraph 7(a) of the Statement of Claim, the Plaintiff is required to provide particulars of each fact, matter or circumstance relied upon to assert that: –

(a)
The Second Defendant permitted drivers to execute a right term;”

Response (4)

“As to paragraph 7(a) of the Amended Statement of Claim:

(a)
The Second Defendant did not prohibit drivers executing a right turn; and

(b)
Refer to subparagraphs 2(a) to 2(e) of the Amended Statement of Claim.”

[24]
In those subparagraphs of the Amended Statement of Claim the plaintiff had pleaded that Finucane Road formed a T-intersection with the southern end of Willard Road, that Finucane Road consisted of two east bound lanes and two west bound lanes divided by concrete medium strip, that drivers in Willard Road were permitted to execute a right turn onto Finucane Road across the east bound lanes, that the intersection was not controlled by traffic lights and, as earlier set out, that the view from Willard Road at the intersection of traffic travelling in the east bound lanes of Finucane Road was obscured by the topography of Finucane Road.

Particulars (5)

“As regards to paragraph 7(b) of the Statement of Claim, the Plaintiff is required to provide particulars of the modifications to the intersection that is (sic) alleged that the Second Defendant failed to make, by reference to the nature and location of the modifications.”

Response (5)

“This is particularised in the Amended Statement of Claim.”

Request (7)

“As regards to paragraph 7(f) of the Statement of Claim, the Plaintiff is required to provide particulars of the prior complaints made by the members of the public about the dangerous nature of the intersection, including: –

(i)
The format which each complaint took (whether oral or written);

(ii)
The date or dates each complaint was made;

(iii)
Who made each complaint;

(iv)
To whom each complaint was made;

(v)
The nature of each such complaint.”

Response (7)

“This is within the knowledge of the first defendant and the second defendant.”

Request (9)

“As regards to paragraph 7(g) of the Statement of Claim, the Plaintiff is required to provide particulars of: –

(a)
The date upon which each prior accident occurred as a result of drivers executing a right turn from Willard Road across the east bound lanes of Finucane Road;

(b)
Each fact, matter or circumstance relied upon to assert that the Second Defendant had knowledge of each such accident;

Response (9)

“As to paragraph 7(g) of the Statement of Claim: –

(a)
This is within the knowledge of the First Defendant and the Second Defendant;

(b)
This is within the knowledge of the second defendant;

(c)
This is particularised in the Amended Statement of Claim. The Second Defendant ought to have done what is alleged the Second Defendant failed to do.”

Request (10):

“As regards to paragraph 7(h) of the Statement of Claim, the Plaintiff is required to provide the particulars of:

(a)
Each factor, matter or circumstance relied upon to assert that the Second Defendant exposed the Plaintiff to risks of injury about which the Second Defendant knew or ought to have known;

(b)
The basis upon which it is alleged that facts within the knowledge or deemed knowledge of the Second Defendant led to a breach of duty by the Second Defendant.^[2]”

Response (10)

“This is particularised in the Amended Statement of Claim.”

Request (11)

“As regards to paragraph 7(i) of the Statement of Claim, the Plaintiff is required to provide particulars of each fact, matter or circumstance relied upon to assert that the Second Defendant exposed the Plaintiff to an unreasonable and unavoidable risk of injury.”

Response (11)

“This is particularised in the Amended Statement of Claim.”

Request (12)

“As regards to paragraph 7(j) of the Statement of Claim, the Plaintiff is required to provide particulars of each fact, matter or circumstance relied upon to assert that the Second Defendant failed to take any, or any adequate, precautions for the Plaintiff’s safety.”

Response (12)

“This is particularised in the Amended Statement of Claim. The Second Defendant ought to have done what is alleged the Second Defendant failed to do.”

Request (13)

“As regards to the assertion of paragraph 8 of the Statement of Claim that it was foreseeable that the conduct of the First Defendant as pleaded in subparagraphs 7(a) to (j) would cause injury, the Plaintiff is required to specify which of the allegations in paragraph 7 are alleged to be conduct of the First Defendant, and which are alleged to be conduct of the Second Defendant.”

Response (13)

“Paragraph 7 of the Amended Statement of Claim clearly pleads allegations only against the Second Defendant.”

Request (14)

“As to paragraph 9 of the Statement of Claim, the Plaintiff is required to provide particulars of each fact, matter or circumstance relied upon to assert that the Second Defendant’s negligence cause the motor vehicle accident.”

Response (14)

“This is particularised in the Amended Statement of Claim.”

[24]
The responses which have been provided need also to be cross-reference to paragraphs 7, 8 and 9 of the Amended Statement of Claim, earlier set out.

[25]
The particulars provided in my view clearly do not enable the defendant to have sufficient information to put him on guard as to his case and to enable him to prepare for trial. It is not particularised, for example, whether or not effective control at the intersection would have required the erection of traffic lights at the intersection (which, at least arguably, would be the responsibility of the first defendant and not the second defendant and which could prohibit the turning right of vehicles), or whether some other physical barrier ought to have been erected solely in Willard Road, to prevent such turns. The plaintiff does not seek to attempt to particularise any details of even a single accident at the intersection, or to attempt to particularise any knowledge the second defendant may have had of such accidents. I accept that much of that might be within the knowledge of the second defendant, but, it is within the capacity of the plaintiff to identify such accidents and provide details of them to the second defendant. It may also be appropriate that the second defendant be asked to provide disclosure of complaints or of its knowledge of accidents prior to the provision of such particulars. That is, pursuant to the rules, an option.

[26]
The particulars provided are very general in nature and do not allow the second defendant to properly prepare for trial, or to know the case that the plaintiff intends to run in alleging negligence against it.

[27]
In the circumstances I uphold the application for the provision of further and better particulars in the form sought in the application. I will so order.

[28]
Subject to submissions to the contrary, I also order that the respondent pay the costs of the applicant of and incidental to the application to be assessed on a standard basis. I will hear the parties further as to whether or not it is appropriate to order that the applicant not enforce any such costs order until the determination of the action or earlier agreed.

Footnotes

[1] In [7(h)] and [8] of the Amended Statement of Claim the plaintiff has mistakenly referred to the first defendant, rather than the second defendant. I have corrected this in the paragraphs above to ensure the pleading is properly understood.

[2] The request, in fact, refers in the second line of each of subparagraphs (a) and (b) to the First Defendant, but it was accepted that this was an error and that it ought to have said the “Second Defendant”. I have corrected that in my quotation above for ease of reference.

Editorial Notes

Published Case Name:
O'Keefe v State of Queensland & Redland City Council
Shortened Case Name:
O'Keefe v State of Queensland
MNC:
[2017] QDC 306
Court:
QDC
Judge(s):
Reid DCJ
Date:
15 Dec 2017

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Bruce v Odhams Press Ltd	View on:ICLRUK(1936) 1 KB 697	2 citations Jump To Cite 1 - (1936) 1 KB 697 Cite 2 - (1936) 1 KB 697
Robert Bax & Associates v Cavenham Pty Ltd	[2011] QCA 53	2 citations Jump To Cite 1 - [2011] QCA 53 Cite 2 - [2011] QCA 53
Thiess Pty Ltd v FFE Minerals Australia Pty Ltd	[2007] QSC 209	4 citations Jump To Cite 1 - [2007] QSC 209 Cite 2 - [2007] QSC 209 Cite 3 - [2007] QSC 209 Cite 4 - [2007] QSC 209

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O'Keefe v State of Queensland[2017] QDC 306