Ellis v Commissioner of Main Roads & Ors [1991] QSCFC 129

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) REVISED CCPic Court Reportln.. sau v^uuf; ntJjJvf i.*r \.m Date.- 3 yOCT/iW SUPREME COURT OF QUEENSLAND FULL COURT THOMAS J RYAN J 'MACKENZIE J No 4360 of 1987 ROBERT JOHN ELLIS Plaintiff and THE COMMISSIONER OF MAIN ROADS First Defendant and COUNCIL OF THE SHIRE OF KILKIVAN Second Defendant and STATE OF QUEENSLAND Third Defendant BRISBANE DATE 17/10/91 JUDGMENT 1 [1991] QSCFC 129 -- 1 of 20 -- 1 10 20 30 40 50 60 1 10 30 40 50 60 171091 JUDGMENT MR JUSTICE THOMAS: I shall ask ay brother Mackenzie to propose the order. MR JUSTI* - MACKENZIE: In my opinion the following orders should be made: 1(a) That the first defendant's demurrer be allowed to the extent that: (i) the first defendant is alleged to be liable for the acts or omissions of the second defendant described in para 12 of the amended statement of claim as negligence particulars of which are stated in para 10(d), (i), (j) and (1) to (o) of the amended statement of claim but that the plaintiff be allowed to re-plead within a period of 28 days in so as far as any of the allegations in para 10 (d), (i) and (j) are capable of constituting negligence by misfeasance rather than nonfeasance; (ii) it relates to liability of the first defendant to pay compensation in respect of any liability of the second defendant under s 51(1) of the Local Government Act; (b) That the plaintiff pay the first defendant's costs of the demurrer to be taxed. 2-(a)_ That-^the-seoQnd— defend ant's demurr er be allow ed^ ----- ■Govt. Printer, Old. 2 -- 2 of 20 -- 171091 JUDGMENT 2(a) That the second defendant's demurrer be allowed: 10 20 (i) in respect of acts or omissions described in para 12 as being negligence particulars of which are stated are para 10 (-0, ( i), (j) and (1) to (o) of the amended statement of claim, but that the plaintiff be allowed to re-plead within a period of 28 days in so far as any of the allegations in para 10 (d), (i) and (j) are capable of constituting negligence by misfeasance rather than nonfeasance; 30 (ii) in respect of para 11 of the amended statement of claim. (b) That the plaintiff pay the second defendant's costs of the demurrer to be taxed. 30 40 3 That the third defendant's demurrer be allowed with costs to be taxed. Judgment should be entered for the third defendant against the plaintiff with costs to be taxed. I publish my reasons. 50 MR JUSTICE RYAN: I agree 50 MR JUSTICE THOMAS: I agree with the reasons published and the order proposed by my brother Mackenzie. Those will be the orders of the Court. G214— Govt. Printer, Qld. 60 3 -- 3 of 20 -- fc *!(/ ta/j IN THE » SUPREME COURT OF QUEENSLAND FULL COURT Writ No. 4360 of 1987 BETWEEN : AND: ROBERT JOHN ELLIS Plaintiff THE COMMISSIONER OF MAIN ROADS First Defendant AND: AND: COUNCIL OF THE SHIRE OF KILKIVAN Second Defendant STATE OF QUEENSLAND Third Defendant THOMAS J RYAN J MACKENZIE J Reasons for judgment delivered by Mckenzie J on the 17th October, 1991. Thomas & Ryan JJ agreeing with those reasons and with the orders proposed. -- 4 of 20 -- 1 2. 3. "ORDER: - (a) THAT THE FIRST DEFENDANT'S DEMURRER BE ALLOWED TO THE EXTENT THAT: (i) THE FIRST DEFENDANT IS ALLEGED TO BE LIABLE FOR ACTS OR OMISSIONS OF THE SECOND DEFENDANT DESCRIBED IN PARA. 12 OF THE AMENDED STATEMENT OF CLAIM AS NEGLIGENCE PARTICULARS OF WHICH ARE STATED IN PARA. 10(d), (i), (j) AND (1) TO (o) OF THE AMENDED STATEMENT OF CLAIM BUT THAT THE PLAINTIFF BE ALLOWED TO RE-PLEAD WITHIN A PERIOD OF 28 DAYS INSOFAR AS ANY OF THE ALLEGATIONS IN PARA. 10(d), (i) AND (j) ARE CAPABLE OF CONSTITUTING NEGLIGENCE BY MISFEASANCE RATHER THAN NONFEASANCE; (ii) IT RELATES TO LIABILITY OF THE FIRST DEFENDANT TO PAY COMPENSATION IN RESPECT OF ANY LIABILITY OF THE SECOND DEFENDANT UNDER s .51(1 ) OF THE LOCAL GOVERNMENT ACT; (b) THAT THE PLAINTIFF PAY THE FIRST DEFENDANT'S COSTS OF THE DEMURRER TO BE TAXED. (a) THAT THE SECOND DEFENDANT'S DEMURRER BE ALLOWED:- (i) IN RESPECT OF ACTS OR OMISSIONS DESCRIBED IN PARA. 12 AS BEING NEGLIGENCE PARTICULARS OF WHICH ARE STATED IN PARA. 10(d), (i), (j) AND (1) TO v o) OF THE AMENDED STATEMENT OF CLAIM, BUT THAT THE PLAINTIFF BE ALLOWED TO RE-PLEAD WITHIN A PERIOD OF 28 DAYS INSOFAR AS ANY OF THE ALLEGATIONS IN PARA. 10(d), (i) AND (j) ARE CAPABLE OF CONSTITUTING NEGLIGENCE BY MISFEASANCE RATHER THAN NONFEASANCE; (ii) IN RESPECT OF PARA. 11 OF THE AMENDED STATEMENT OF CLAIM. (b) THAT THE PLAINTIFF PAY THE SECOND DEFENDANT'S COSTS OF THE DEMURRER TO BE TAXED. THAT THE THIRD DEFENDANT'S DEMURRER BE ALLOWED WITH COSTS TO BE TAXED. 4. ENTER JUDGMENT FOR THE 3RD DEFENDANT AGAINST THE PLAINTIFF WITH COSTS TO BE TAXED. -- 5 of 20 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Thomas Mr. Justice Ryan Mr. Justice Mackenzie BETWEEN : ROBERT JOHN ELLIS No. 4360 of 1987 Plaintiff AND: AND: AND: THE COMMISSIONER OF MAIN ROADS First Defendant COUNCIL OF THE SHIRE OF KILKIVAN Second Defendant STATE OF QUEENSLAND Third Defendant JUDGMENT - MACKENZIE J. Delivered the 17th day of October, 1991 Counsel: W.T. McMillan for First and Third Defendants. ' J.J. Clifford Q.C. and W.M. Boulton for Second Defendant. R.R. Douglas Q.C. and D.R. Boughen for Plaintiff. Solicitors: K.M. O'Shea, Crown Solicitor, for First and Third Defendants . Quinlan, Miller & Treston for Second Defendant. Henderson Trout for Plaintiff. Hearing date: 11th September, 1990 -- 6 of 20 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 4360 of 1987 BETWEEN: ROBERT JOHN ELLIS Plaintiff AND: THE COMMISSIONER OF MAIN ROADS First Defendant AND: COUNCIL OF THE SHIRE OF KILKIVAN Second Defendant AND: STATE OF QUEENSLAND Third Defendant JUDGMENT - MACKENZIE J. Delivered the 17th day of October, 1991 These are demurrers by each of the defendants to an amended statement of claim in an action for damages for negligence and for compensation under s. 51 of the Local Government Act 1936-1991. The facts pleaded by the plaintiff are that on the evening of the 30th November, 1984 he was driving his motor vehicle towards a bridge across a creek on the Brooweena-Woolooga Road when his vehicle became uncontrollable and crashed from the bridge causing him severe injuries. He alleges in respect of the first defendant the Commissioner of Main Roads that:- -- 7 of 20 -- 2 (a) The road was constructed by or on behalf of him in accordance with his or the second defendant's design and specifications; (paras. 3, 6) (b) He was responsible for the general maintenance and upkeep of the road; (para. 4) (c) After construction the second defendant carried out the work on the road on his behalf; (para. 5) (d) He was negligent in some 15 respects some of which are expressed in terms of negligent design of the road and some of which are expressed in terms of failures to install signs and guardrails, to maintain and improve the road and to give warnings of its state, (para. 10) The plaintiff alleges inter alia th r the Commissioner was and remained responsible for the general maintenance and upkeep of the road and, after construction of the road the second defendant carried out the work (i.e. general maintenance and upkeep) on behalf of him. The further and better particulars given in respect of paras. 5 and 11(b) of the statement of claim are : (a) general maintenance and upkeep of the road; (b) grading and levelling of it; (c) the installation of road signs; (d) the placing of gravel on it; (e) the grading and surfacing of the road to produce road camber and curve radius; and, (f) bridge construction and maintenance. The statement of claim does not allege that the Commissioner did any of the general maintenance or upkeep himself. The -- 8 of 20 -- 3 allegation is that while he may have been responsible for it it was actually done by the Council. So if the Commissioner incurs any liability in respect of things done by way of general maintenance and upkeep of the road that liability must derive from acts or omissions of his agent, the Council. Therefore if the second defendant is not liable in respect of general maintenance and upkeep nor is the Commissioner. Paragraph 10 of the amended statement of claim alleges that the plaintiff's injury, loss and damage was caused by the negligence of the first defendant. On their face the allegations of negligence by the Commissioner relate to his own activities, not those of the Council. The demurrer is not on its true construction conceded with the Commissioner's own activities. It demurs to the amended statement of claim only so far as it sets up a claim against him in respect of any act or omission of the second defendant or in respect of any liability of the second defendant. The claim is alleged to be bad in law on the grounds that the second defendant is sued only as a highway authority in respect of omissions which amount to no more than nonfeasance and that the Commissioner is not on the facts pleaded, liable in respect of any liability to pay any compensation or in respect of any negligence on the part of the second defendant. It will therefore be seen that the demurrer relates only to liability of the first defendant derived from primary liability on the part of the second defendant. Apart from the allegation in para. 5 of the amended statement of claim which alleges that the second defendant, after the road's construction, carried out work on the road on behalf of the first defendant and itself or either of -- 9 of 20 -- 4 them, there is no specific allegation in the statement of claim relating to the secondary liability of the first defendant for the acts or omissions of the second defendant. In respect of the second defendant the amended statement of claim alleges that:- (a) It was responsible for the general maintenance and upkeep of the road; (para. 4) (b) After construction it carried out the work on its own behalf or the first defendant's behalf; (para. 5) (c) The road was constructed in accordance with its or the first defendant's design and specifications; (para. 6) (d) it was negligent in the particulars in paras. 10(d), (i), ( j is and (1) to ( o ); and , ( para .12) (e) It was liable to pay compensation under s. 51 of the Local Government Act 1936-1991. (para. 11) The second defendant's demurrer demurs to the amended statement of claim so far as it sets up a claim against the second defendant in respect Of any of its acts or omissions or in respect of any liability on its part. It is asserted that the claim is bad in law on the grounds that it is sued only as a highway authority in respect of omissions which amount to no more than nonfeasance and that it is not on the facts pleaded liable / to pay compensation to the plaintiff. ^ . Mr. McMillan for the first defendant indicated that his submissions were not directed to the allegations relating to design and construction of the road but were limited, insofar as the allegations of negligence were concerned, to those in paras. 10(d), (i), (j) and (1) to (o) in respect of the claim of -- 10 of 20 -- 5 negligence. Thus the allegations of negligence pleaded against the second defendant and demurred to by it are of a parallel nature to those which the first defendant informed us at the hearing were being pursued by him. So far as the third defendant is concerned the bases of its liability are pleaded to be liability for the acts and omissions of the first defendant in its own right and/or as the principal of the second defendant, (para. 13) It is convenient to deal first with the position of the third defendant, the State of Queensland. The third defendant is sued pursuant to s. 8 of the Crown Proceedings Act 1980 as the Crown in right of the State of Queensland. Thus para. 13 of the statement of .ol.aim alleges that the Crown in right of the State of Queensland is liable for the acts or omissions of the first defendant the Commissioner of Main Roads in its own right and/or as principal of the second defendant the Council of the Shire of Kilkivan. The natural meaning of this is that the liability flows from acts or omissions by the Commissioner in his own right, or from his status as principal of the second defendant. Under s. 8(2) of the Crown Proceedings Act 1980, where a corporation representing the Crown in right of the State of Queensland, constituted by or under an Act, is subject to a claim by another, s. 8(1) does not apply. The proper course is to sue the corporation in its own name. Section 3 of the Main Roads 1920-1990 (now repealed) provided for the office of Commissioner of Main Roads and s. 5 provided that the Commissioner, representing the Crown, was to be a corporation sole with all the powers, privileges, rights and -- 11 of 20 -- 6 remedies of the. Crown, and haying the usual capacities given to statutory corporations including the right to be sued. It should be noted that the Main Roads Act has been repealed, with effect, from the 14th July, 1991, by an Act whose title hardly pays homage to the policy of plain English drafting, the Transport Infrastructure (Roads) Act 1991. More relevantly for present purposes, that Act vests the administration of the Act. in a corporation sole under the name and style of the Director-General, Department of Transport and in the Director-General in his personal capacity as the Chief Executive of the Department of Transport. The corporation sole in whom the administration of the Act is vested .<is the corporation sole established under the Urban Public Transport Act 1984-1989, who by s. 12 thereof is to be taken to represent the Crown. Thus the first defendant by whatever name remains a Crown corporation. Clause 7(1 )(e) of the Third Schedule of the Transport Infrastructure (Roads) Act 1991 provides that all actions, suits and proceedings by or against the Commissioner of Main Roads pending or existing immediately prior to its commencement may be continued or discontinued by or against the corporation which is to be substituted as a party thereto in. place of the Commissioner of Main Roads. Having regard to the procedure for bringing actions against the Crown and its instrumentalities, there is no right to bring a claim against the Crown in right of the State of Queensland in respect of the corporation's actions in the absence of any additional factor that might create liability on the part of the Crown in that regard. There is nothing in the pleadings that -- 12 of 20 -- 7 suggests that such liability exists. Nothing is pleaded other than the bare assertion that the State of Queensland is liable for the acts or omissions of the Commissioner in his own right or as principal for the second defendant. On the pleadings as they stand there is no sustainable basis for this proposition. I therefore conclude that the demurrer by the third defendant the State of Queensland should be upheld insofar as it relates to liability for the acts or omissions of the first defendant whether in his own right or as principal for the second defendant. Lest it be suggested, contrary to the natural meaning of the pleading, that it is also capable of meaning that the third defendant in some way bears, liability as the principal of the second defendant, the Council is a local authority brought into existence under the Local Government Act 1936-1991. As such it has conferred on it a wide range of functions, powers and duties. While there are some restraints upon its freedom of action, such as specific approvals that must be obtained from the Governor-in-Council in respect of particular matters and certain powers reserved to the Minister and the Director for exercise in situations of last resort, a local authority has substantial autonomy and freedom from direction by the Crown in relation to the everyday performance of its functions, powers . and duties. It is true that it is a creature of statute of the State Parliament but that does not in my opinion make it correct to analyse the relationship between a local authority and the Crown in terms of agent and principal in the present context. Nothing has been pleaded suggesting that there are any particular matters -- 13 of 20 -- 8 in the relationship between the Crown and the local authority in this case that take the case outside the general principles that have been stated. Therefore if para. 13 is capable of bearing this alternative meaning, the demurrer must succeed in this respect as well. I turn now to the matter of compensation under s. 51 of the Local Government Act. Mr. Douglas (who, like his junior before us, was not involved in drafting the amended statement of claim) conceded, without abandoning the plea, that para. 11 appeared to be unsustainable. Provisions of this kind in legislation imposing statutory functions on public authorities have a long history. The purpose of such provisions is to allow a statutory remedy to a person who suffers damage by reason of the fact that the authority has exercised its statutory powers without negligence in a manner that, but for the statute, would have been actionable. ( Marriage v. East Norfolk Rivers Catchment Board (1950) 1 K.B. 284; East Fremantle Corporation v . Annois (1902) A.C. 213.) Such provisions are concerned with interference under statutory powers with rights of property. ( New River Co. v. Johnstone (1860) 2 E. & E. 435.) The compensation is for losses sustained in consequence of what the authority may lawfully do under the powers conferred on it where, but for the statute, the consequences of what was done would have been actionable . ( Metropolitan Water Sewerage and Draining Board v. C.K. Elliott Ltd. (1934) 52 C.L.R. 134.) In Pegoraro v. South Burdekin Water Board (1972) Qd. R. 306 the plaintiff made a common law claim in negligence and nuisance arising from the performance of drainage work by the Board which -- 14 of 20 -- 9 resulted in flooding of his land. There was a provision which gave jurisdiction to the Magistrates Court to determine compensation payable by the Board by reason of the exercise of its powers conferred by the Water Act. In dismissing the argument that the District Court was deprived of jurisdiction to hear the plaintiff's claim the Full Court held, after a detailed consideration by D.M. Campbell J. of the authorities to which I have referred above, that "compensation" in the context of the Water Act meant compensation for lawful acts in the sense explained in those authorities. It is implicit in the way in which those authorities were discussed that the Full Court accepted the principles referred to as the proper interpretation of provisions of a lik ^ kind to s . 51 of the Local Government Act. The plaintiff's claim in these proceedings is for negligence. It is not a claim in respect of some action by the defendants in pursuance of statutory powers that has thereby caused damage to the plaintiff in the necessary sense. It is a claim for damages arising from the use by the plaintiff of a facility, constructed a considerable time before the incident in which he was injured occurred. It is thus beyond the scope of s. 51 and there is no sustainable basis for claiming compensation under s. 51 . The demurrer is therefore allowed in relation to para.11. The remaining matters are concerned with the distinction between nonfeasance and misfeasance by a highway authority. So far as the second defendant is concerned, its demurrer squarely raises this distinction. So far as the first defendant is -- 15 of 20 -- 10 concerned it raises by way of defence that the first defendant is a highway authority and, being sued as such, is not liable for nonfeasance (presumably in respect of the negligence alleged against it in its own right in para. 10). Its demurrer is concerned with its liability in respect of acts or omissions of the second defendant or in respect of liability of the second defendant. The underlying proposition relied on is that the second defendant is sued as a highway authority for nonfeasance and not for misfeasance. The first defendant's demurrer is thus limited in a way that was not reflected in argument. While Mr. Douglas did not object to the course followed, Mr. McMillan as I understand it, sought to treat allegations of the same nature (made against the Commissioner in his own right in para. 10) as those made against the Council in para. 12 as being the subject of the demurrer. The; demurrer of * the first defendant must be determined in accordance with its proper construction irrespective of the viability of those aspects of the plaintiff's claim against the Commissioner which are disputed in the first defendant's defence on the same grounds as those taken by the second defendant in its demurrer. As the pleadings stand, if it turns out in the end that none of the general maintenance and upkeep work carried out by the second' defendant consists of acts or omissions, in respect of which the second defendant is liable to the plaintiff, liability on the part of the first defendant as principal for the second defendant will not be established. The sole remaining question will then be whether the first defendant is liable for negligent design of the road and bridge. -- 16 of 20 -- 11 What follows, then, is primarily related to the second defendant's demurrer. It will follow that the first defendant's demurrer insofar as the first defendant's liability is allegedly based on its being the second defendant's principal will be determined in a like manner. However the allegations made by the plaintiff against the first defendant in its own right are not covered by the demurrer and what will not therefore be disposed of by the determination of the like matters in the second defendant's demurrer. The relevant principles are to be found in Buckle v. Bavswater Road Board (1936) 57 C.L.R. 259 and more recently in this Court in Desmond v. Mt. Isa City Council (1990) A.T.R. 81-045. In particular the issue whether paras. 10(d) * (i) and (j) and (1) to (o) allege misfeasance rather than nonfeasance. Mr. Douglas conceded that it was difficult to support that, paras. (1) to (o) were allegations of misfeasance. However he submitted that paras, (d), (i) and (j) were claims of faulty design which related to the allegation in para. 6 that the road was constructed in accordance with the design and specifications of the first defendant and the second defendant or either of them. Paragraph (d) alleges a failure to construct an advisory speed sign when a reasonable and prudent highway authority would have so constructed the sign. On its face that is. simply an allegation of nonfeasance and there is nothing in the pleading to suggest that anything would bring that failure within the category of misfeasance. Likewise para, (i) refers to the failure to install sign posting adequately to warn drivers of the existence of and dangers constituted by the existence of a -- 17 of 20 -- 12 substandard horizontal curve. Once again that is couched in terms of nonfeasance and there is nothing elsewhere to suggest that that is transformed into misfeasance by some additional factor. Paragraph (j) is concerned with an alleged failure to erect guard fencing in and about the surrounds to the bridge in accordance with contemporary safety standards for the purposes of containing vehicles on the structure. The emphasis is on failure to erect the fencing. It is not expressed in terms alleging that the design was negligently prepared due to failure to take into account contemporary safety standards. That being the case, I think that paras, (d), (i) and (j) go only to the issue of nonfeasance and are therefore properly deimd red to. ' L However, all three subparagraphs may be capable of adaptation so as to allege misfeasance in construction, e.g.: 10(d): constructing the approach to the bridge without including in the construction an advisory speed sign, etc.; 10(i): constructing a curve without installing signposting, etc .; 10(j): constructing the surrounds of the bridge without erecting guard fencing, etc. / As to para. 10(1) to (o), there appears to be no basis, upon which they could be re-pleaded so as to amount to allegations of misfeasance. The concession that they cannot be supported as such is well founded. In my opinion, the demurrer should be allowed in respect of them. -- 18 of 20 -- 13 Order 29 r. 11 provides that when a demurrer to part of a pleading is allowed then, subject to the power of amendment, the matter demurred to is deemed to be struck out and the rights of the parties are the same as if it had not been pleaded. Mr. Douglas submitted that in the event of the paragraphs being struck out as against the second defendant he would seek to re-plead in such a way as to make the allegations referrable to misfeasance if possible. In the circumstances of the case I am of opinion that this is a course which he should be allowed to take in respect the allegations in para. 10(d), (i) and (j). In my opinion the following orders should be made:- 1. (a) That the first defendant's demurrer be allowed to the extent that: (i) the first defendant is alleged to be liable for acts or omissions of the second defendant described in para. 12 of the amended statement of claim as negligence particulars of which are stated in para. 10(d), (i), (j) and (1) to (o) of the amended statement of claim but that the plaintiff be allowed to re-plead within a period of 28 days insofar as any of the allegations in para. 10(d), (i) and (j) are capable of constituting negligence by misfeasance rather than nonfeasance; (ii) it relates to liability of the first defendant to pay compensation in respect of any liability of the second defendant under s. 51(1) of the Local Government Act; -- 19 of 20 -- 14 2. 3. (b) That the plaintiff pay the first defendant's costs of the demurrer to be taxed. (a) That the second defendant's demurrer be allowed (i) in respect of acts or omissions described in para. 12 as being negligence particulars of which are stated in para. 10(d), (i), (j) and (1) to (o) of the amended statement of claim, but that the plaintiff be allowed to re-plead within a period of 28 days insofar as any of allegations in para. 10(d), (i) and (j) capable of constituting negligence by misfeasance rather than nonfeasance; (iitt in respect of para. 11 of the amended statement of claim. (b) That the plaintiff pay the second defendant's costs of the demurrer to be taxed. That the third defendant's demurrer be allowed with costs to be taxed. Judgment should be entered for the third defendant against the plaintiff with costs to be taxed. -- 20 of 20 --