Limpus v State of Queensland[2003] QSC 93

SUPREME COURT OF QUEENSLAND

[2] MACKENZIE J:  This is an application to join additional defendants about 13 months after the limitation period expired in an action for personal injuries.  The proposed second defendants are the owners of a residence near the road upon which the accident occurred.  The proposed third defendant is Whitsunday Shire Council the local authority in whose area the road is situated.  All proposed defendants resist the application.

[3] On 24 February 1999 the plaintiff was riding his motor cycle along Shute Harbour Road at Proserpine.  As he came to a left hand bend where Rifle Range Road intersects with Shute Harbour Road he says he struck a patch of gravel on the road surface, lost control of the motor cycle and suffered injuries.  He deposes that after the accident he noticed gravel lying on the road which he assumed had been discharged on to the road from a nearby bus stop but was unable to inspect the scene more closely because of his injuries. 

[4] There is no evidence as to when he first contacted solicitors with a view to bringing an action.  There is evidence that on 11 April 2001 instructions were received by his present solicitors from a firm of solicitors in the Whitsundays to investigate an action on behalf of the plaintiff.  Material including photographs of the accident site  was received on 22 April 2001 and on 24 April 2001 a solicitor phoned the plaintiff who confirmed the account of the accident. 

[5] The photographs show signs of dirt and gravel in the vicinity of the scene of the accident.  The photographs were taken at a time that is not established and do not show the state of the road on the day of the accident.  In the photographs the biggest concentration of debris is in the mouth of the intersection where there is also a roughly semi-circular area for buses to turn around, rather than on the carriageway of the road upon which the plaintiff was travelling.  Later photographs taken during an investigation by an engineer on behalf of the plaintiff also show gravel in the relevant area, although it appears to be greater in volume at that time.  The photographs are consistent with the heavier volume of traffic on the main road keeping it relatively debris free, compared with the minor road.  It cannot be doubted that it is possible that there was gravel on the carriageway of the main road at the time the plaintiff fell off his motor cycle. 

[6] Following her conversation with the plaintiff on 24 April 2001 the solicitor requested the relevant police report which, due to technical difficulties was not available until 20 June 2001.  On 10 July 2001 a Freedom of Information application for submission to the Department of Main Roads concerning works done on Shute Harbour Road was prepared.  However this application was not completed because the plaintiff had left his known address.  A further attempt to post the application to him on 10 September 2001 failed because he had moved again.  It was finally signed and sent to the Department in mid October 2001. 

[7] On 14 December 2001 the solicitors were advised that the number of documents relating to Shute Harbour Road was large and an appointment was made and inspection of them carried out on 3 January 2002.  These documents revealed that drainage problems on Shute Harbour Road had been reported and had been the subject of repairs and maintenance.  However there was no report of any such problems at or near the relevant intersection.  On 4 January 2001 the plaintiff was advised that it would be necessary to have an engineer inspect the intersection to comment upon the drainage at the accident site.  The plaintiff did not contact his solicitor until 7 February 2002 when he gave instructions to proceed with the investigation. 

[8] The next relevant event, with the expiry of the limitation period imminent, was to file a claim and statement of claim, on 22 February 2002.  The engineer’s inspection occurred on 11 March 2002 and he telephoned the solicitor promptly advising that his inspection of the accident site had caused him to form the opinion that rain would be likely to cause a discharge of gravel onto the road from the driveway on the house on the apex of the corner.  The engineer advised that in his opinion the intersection required a spoon drain to channel gravel away from the road.  On 20 March 2002 the photographs taken by the engineer were received by the solicitors. 

[9] For reasons that are not explained, the report in writing from the engineer was not received for ten months.  No explanation is given why the verbal indication that gravel emanating from the driveway of the house was probably a cause of gravel on the roadway was not immediately followed up with a view to prompt action to consider taking action against the proposed second defendants.  The plaintiff deposed that he became aware of the information that gravel may have been discharged on to the road from a private driveway, then over property controlled by the local Council and that the owner of the house with the driveway and the local Council should be defendants in a phone call with his solicitor on 21 June 2002.  Once again there is no explanation of why the matter was not progressed until now. 

[10] When the engineer’s report was prepared it included a number of things “assumed” by the author.  Since the plaintiff specifically confirms in his affidavit that the factual matters are true and correct in the engineer’s report, it is taken to be the case that what has been assumed by the engineer is a true account of what occurred.  For present purposes it can therefore be accepted that after the accident, the plaintiff had knowledge of people who had “seen the Council sweeping the area”.  However he did not tell his solicitor of this in a timely way.  She deposes that prior to filing the claim and statement of claim she had no instructions from the plaintiff as to any activity or involvement at the accident site of the Whitsunday Shire Council.  The only account given by the applicant is that he was aware of gravel on the road on the night of the accident, that he was unable to inspect it closely on that evening because of his injuries and that after the accident he was either unable to inspect the intersection because on any occasion he went past he was lying in the back seat of the car because of his injuries or, subsequently when he travelled past the scene of the accident, he felt too uncomfortable about stopping and inspecting it to stop and do so. 

[11] The proposed second defendants depose that they had no prior notice of the incident in which the plaintiff alleges he suffered personal injuries prior to service of the present application.  They claim to be prejudiced because of the length of time between the date of the incident especially because they have no previous knowledge of it and have not undertaken any forensic inquiry in relation to the facts alleged.  It is deposed that they are people of limited means.  It is also deposed that they had insurance cover under an FAI policy.  In the short time since service of the application they have submitted a claim to the HIH Claims Support Scheme but do not know and will not know for several weeks whether they will be given assistance.  The relevance of the insurance position was in dispute at the hearing of the application. 

[12] Likewise, the proposed third defendant knew nothing of the potential claim until served with the application on 13 March 2003.  It is deposed that had a request been made by the plaintiff or anyone acting for him at any earlier time to inspect documents held by the Council in relation to Shute Harbour Road those documents would have been made available for inspection.  No specific ground of prejudice beyond that inherent in delay is raised. 

[13] The applicant’s material is unsatisfactory in several respects.  He did not do anything, even if he felt he could not face up to doing it himself, to have the scene inspected on his behalf in the period after the accident to establish the possible causes of the accident.  At the stage when information was being gathered by his solicitor, he lost touch with her, causing vital time to be lost.  When the expiration of the limitation period was fast approaching, he did not contact his solicitor for a month about the proposal to have an engineering inspection done.  On the assumption that he knew that the Whitsunday Shire Council was sweeping the area after the accident, he did not tell his solicitor about it in a timely way.

[14] Since the material is largely devoid of explanation, it can only be recorded that it appears that as early as June 2002 the question of liability of the second and third defendants was clearly in contemplation .  There is no explanation why it was not progressed for nine months.  If it is associated with the fact that there was no written report from the engineer until ten months after the inspection, there is no explanation given of why that was so. 

[15] In the absence of any explanation of the matters in the last paragraph it would be inappropriate to attribute those delays to the plaintiff personally.  However the combination of the matters which are attributable to the plaintiff himself and the other unexplained delays have created a situation where the proposed second and third defendants have been unaware for a substantially longer period than may otherwise have been the case of the risk that they may be liable in respect of the accident. 

[16] The amended statement of claim alleges that the proposed second defendants, as owners of the premises, constructed, caused to be constructed or suffered the presence of the driveway on their property.  The driveway was constructed of, in whole or in part, a loose gravel material.  It was reasonably foreseeable that gravel material might be transported from the driveway and deposited on to the surface of the intersection by forces of nature or the effect of traffic on the road or driveway.  They owed a duty of care to road users including the plaintiff.

[17] The breaches of duty pleaded are collectively assigned to the first, second and/or third defendants.  It is plain that not all of them could be applicable to the proposed second defendants.  There has been no attempt to identify which are alleged specifically against them.  Indeed it is apparent from the fact that the particulars are unamended from their original form, save for the addition of an allegation of failure to construct a spoon drain or similar device to prevent debris being transported from the driveway to the intersection, that they are the particulars originally alleged against the first defendant.  The proposed second defendant has no duties with respect to road design, signage or maintenance of the intersection to which the particulars in (a) to (j) of paragraph 6 of the statement of claim relate.  The only breach of duty therefore pleaded against the second defendant is failure to construct a spoon drain or similar device across the driveway. 

[18] The driveway in question has no unusual characteristics as a result of which the risk that gravel will flow into the street is increased.  It is not clear from the photographs whether it was constructed as a gravel driveway or whether the gravel has become exposed simply as a result of constant use as vehicular access.  Of necessity the expert’s report proceeds on the assumption, as to which there is no evidence, that the driveway was in a similar state at the time of the accident to its state at the time of his report. 

[19] The substance of the expert’s report is that the photographs show that there is a significant amount of loose gravel on the bitumen surface immediately adjacent to the driveway.  The most significant source of the loose material would seem to be associated with the driveway of the private residence.  The driveway is scoured.  The loop in front of the bus stop is not hot mixed.  (The photographs show a considerable amount of gravel in that area as well).  The loose road material in front of the bus stop is less likely to find its way to the point of the incident and more likely to find itself washed into the opposite part of the bus access loop. 

“When one considers an accident as involving a range of essential factors, then one of the factors involved in the incident is the ability of the loose material to be washed from the resident’s driveway onto the public road system as so (sic) present a particular hazard to motorcycle riders.  The provision of a spoon drain at the commencement of the driveway would allow for material to be captured and diverted.  Alternatively the driveway could be sealed. 

Other essential factors relate to the frequency of sweeping of corners where material builds up in the public road systems and is able to present particular and increased risk to road user groups, in particular motorcyclists.”

[20] The report identifies one of the factors in the accident as the ability of gravel from the driveway to migrate to the area where the accident happened.  It says it is perhaps the most significant source but not the only possible cause of gravel building up.  The driveway is one of a kind not uncommon in country areas, without any unusual characteristics.  On the evidence as it stands the likelihood that a breach of duty of care would successfully be proved against the second defendants is by no means certain.  When that is taken in conjunction with the delay, lack of adequate explanation of the delay, and the possible prejudice to the second defendants because of the lapse of time, I am not satisfied that it is just to require the second defendant to be joined.  In that equation I have not taken into account the fact that their insurance position has been prejudiced since that is something that would have happened irrespective of delay.  The application will therefore be dismissed in respect of the proposed second defendants.

[21] With respect to the third defendant there is some evidence from which it may be inferred that the plaintiff had reason to believe that it swept the road on occasions after the accident, but did not mention that fact in a timely way to his solicitors.  It was submitted that, even applying ordinary principles, the local authority’s potential liability ought to have been investigated promptly.  The interaction of s 43 of the Transport Infrastructure Act 1994 (Qld) and s 901 of the Local Government Act 1993 (Qld) would have prompted such an inquiry.  There was also evidence that the plaintiff did not for the reasons stated earlier take steps to have the locality inspected with a view to ascertaining relevant facts.  There is evidence from the proposed third defendant’s CEO that there was no impediment to access to information about its involvement with the road.   It was submitted that no reason had been demonstrated why the proposed third defendant had not been joined within the limitation period.

[22] The liability of the proposed third defendant would conceivably rest on all or any of the pleaded particulars in paragraphs 6(a) to (k) of the amended statement of claim.  Its liability is governed by different considerations from those governing the potential liability of the proposed second defendants.  The clear conclusion to be drawn is that there was a failure to appreciate the possibility that the local authority might have had a role in maintaining the intersection in a safe condition.  One aspect of this might be ensuring that gravel that built up on the minor roadway did not migrate to the main road and cause a hazard. 

[23] The basis of liability of the first defendant and the proposed third defendant is not necessarily co-extensive.  The possibility that the proposed third defendant’s liability might extend to a wider set of circumstances than that of the first defendant was debated in submissions, in the context of a submission on its behalf that if the first defendant was held liable the fact that the proposed third defendant was not a party would not prejudice the plaintiff.  Particular reliance was placed on Cacchia v Rungert & Ors [2002] QCA 207, where a proposed defendant succeeded in resisting joinder.  That case is distinguishable because it is apparent that it was necessary, for the plaintiff to succeed, to prove the existing defendant’s liability to establish the derivative liability of the proposed defendant.  In reaching that conclusion Cullinane J said, with the concurrence of the other members of the court:

“The case is not one in which there is uncertainty as to who was the responsible party so that the joinder of an additional Defendant is justified to avoid any risk that the wrong party may have initially been chosen as a Defendant and the Plaintiff might, as a consequence, fail.”

[24] This passage does not mandate how the discretion should be exercised but it does illustrate that a weighing exercise is involved on a case by case basis.  The case also confirms that the discretion given by r 69 UCPR is a broad one, not dependent on an applicant demonstrating special or peculiar circumstances (see also Jerome v Hill [2000] QSC 91; (2001) 1 Qd R 496 and Bates v Queensland Newspapers Pty Ltd [2001] QSC 083, Unreported, Queensland Supreme Court, 27 March 2002, Chesterman J). 

[25] It is true that joining the proposed third defendant will involve exposing it to an action some twelve months after the limitation period expired.  It will be exposed to a liability which it would not otherwise be exposed to.  However no specific prejudice in addition to the ordinary disadvantages caused by delay is alleged by the proposed third defendant.  Taking into account the factors that have been referred to in the course of these reasons I am satisfied that it is just to include the third defendant as a party after the end of the limitation period. 

[26] The orders are as follows:

1. The application to join Grant Dennis Howard and Cheryl Joy Howard as Second Defendants is refused;

2. The applicant pay the costs of Grant Dennis Howard and Cheryl Joy Howard, of and incidental to the application, to be assessed;

3. Whitsunday Shire Council be added as Second Defendant to the action pursuant to the Uniform Civil Procedure Rules;

4. The plaintiff have leave to file and deliver an Amended Claim and Statement of Claim insofar as it relates to claims against Whitsunday Shire Council only, in terms of the draft Amended Claim and Amended Statement of Claim exhibited to the Affidavit of Jessica Omra McClymont sworn 28 February 2003 and marked “JMC-01” at pages 1-33, with any necessary adaptations,  pursuant to Rule 375 of the Uniform Civil Procedure Rules;

5. Costs of and incidental to the application as between the plaintiff and Whitsunday Shire Council be costs in the cause.