Godden v State of Queensland & Ors [2016] QSC 224

[1] By application filed on 11 July 2016, the plaintiff seeks an extension of the period of limitation to 27 November 2014 for his claim against the fifth defendant for damages for personal injuries sustained by the plaintiff on 24 May 2008. This application is responsive to the fifth defendant's application (originally filed on 26 May 2016 and amended on 3 June 2016) which seeks summary judgment dismissing the plaintiff's claim against the fifth defendant, because it is statute barred, or the plaintiff has not complied with the relevant provisions of the Motor Accident Insurance Act 1994 (Qld) (the MAIA), or the plaintiff's claim has no basis in evidence against the fifth defendant.

[2] The applications of each of the plaintiff and the fifth defendant were heard at the same time. The only oral evidence was from the plaintiff.

[3] At about 6pm on 24 May 2008 the plaintiff was riding his Harley Davidson motorcycle in a south westerly direction along Halfway Drive, Ormeau, when he started to apply the brakes as he approached the roundabout with Doolan Street. The front tyre of the motorcycle then slid out from under the plaintiff, as a consequence of the front tyre coming into contact with dust and/or debris deposited on the road surface. Both the plaintiff and his motorcycle fell to the surface of the road, sliding for a distance of between 20 to 30 metres before coming to a stop on the roundabout. The plaintiff claims that the dust or debris on the road was generated from the construction works being undertaken on the site of Norfolk Village State School which had fallen onto the road surface at Halfway Drive in the immediate vicinity of the construction site. As a result of this accident, the plaintiff alleges he suffered a significant injury to his left lower leg involving a compound fracture of the left tibia and fibula, an aggravation to a pre-existing back condition, and psychological sequelae.

[4] This proceeding was commenced on 18 May 2011 against the first, second and third defendants after the plaintiff obtained leave of the court to start the proceeding pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (the PIPA) and the proceeding was stayed pending compliance with Part 1 of Chapter 2 of that Act. The plaintiff's notice of claim under the PIPA had been served on the second defendant on 8 April 2011. The plaintiff and the first, second and third defendants advanced the claim through the procedural requirements of Part 1 of Chapter 2 of the PIPA culminating in a mediated compulsory conference on 28 October 2013 at which the claim did not resolve.

[5] When the plaintiff's solicitors were preparing for an application for leave to commence a proceeding against the fourth defendant, the solicitors for the second defendant provided documents by way of disclosure on 27 November 2013 which included an unsigned document described as "subcontract agreement between Northbuild Construction Pty Ltd and Keentex Pty Limited trading as BJR Earthworks" and documents described as invoices from BJR Earthworks and Lantrak Resource Management Pty Ltd for work performed on the relevant construction site. The description of the works in this subcontract that relates to the subject site is for the construction of retention basin. The second defendant's solicitors advised they were undertaking further inquiries as to the involvement of the earthworks subcontractor and indicated that the plaintiff's solicitors would be kept informed of any further developments.

[6] The second defendant's defence was filed on 27 February 2014. The second defendant pleaded that it was the principal contractor for the Norfolk Village State School work site, the second defendant subcontracted the construction works to Northbuild FM Pty Ltd (known as Northbuild Civil Pty Ltd when the works were subcontracted), and by way of the subcontract the second defendant delegated the performance of the construction works to Northbuild Civil Pty Ltd. It is pleaded in paragraph 5(b)(ii) of the second defendant's defence:

"The vehicles accessing the site were under the direction of Northbuild Civil Pty Ltd and the earthworks subcontractor, BJR Earthworks. Any transportation of soil, rocks and debris was not within the knowledge of the Second Defendant."

[7] It is also pleaded in paragraph 5(c)(vi) of that defence:

"The excavation of the premises was at the direction of Northbuild Civil Pty Ltd and the earthworks subcontractor, BJR Earthworks. Any dust, debris or mud on the road or area surrounding the construction site was not within the knowledge of the Second Defendant."

[8] The second defendant pleaded in paragraph 8(b)(i) of its defence that the duty to take reasonable steps to ensure the vehicles leaving the site did not create a foreseeable risk to road users was owed by the civil works subcontractor for the site, Northbuild Civil Pty Ltd, and not by the second defendant. The second defendant also alleged in paragraph 8(b)(ii) of that defence that the duty of care to ensure the vehicles and machinery did not create a foreseeable risk of injury was owed by the earthworks subcontractor BJR Earthworks.

[9] Although the second defendant did not identify the fifth defendant by its corporate name in its defence, it did identify by the documents it provided on disclosure that the fifth defendant traded as BJR Earthworks and identified in its defence that BJR Earthworks was the earthworks contractor for the site at the relevant time. The plaintiff's solicitors ascertained on 4 March 2014 that the fifth defendant had become deregistered on 3 February 2014. They then ascertained that the fifth defendant held a policy of public liability insurance as at the date of the accident. On 28 April 2014 the plaintiff was successful in reinstating the registration of the fifth defendant and, subject to compliance with Part 1 of Chapter 2 of the PIPA, granted leave to commence and maintain a proceeding for damages based upon a liability for personal injury against the fifth defendant pursuant to s 601AH(3)(b) of the Corporations Act 2001 (Cth).

[10] On 17 November 2014 the plaintiff obtained an order from the Deputy Registrar granting leave to start a proceeding in the court for damages based on a liability for personal injury against the fifth defendant pursuant to s 43 of the PIPA, subject to the proceeding being stayed pending compliance with Part 1 of Chapter 2 of the PIPA. The fifth defendant consented to that order, subject to the reservation of the fifth defendant's rights in relation to any defences in respect to the limitation period and prejudice to the fifth defendant by delay in commencing pre-court proceedings. The plaintiff was also granted leave to file a further amended claim and a second further amended statement of claim that incorporated his claim and allegations against the fifth defendant.

"Had been retained by the Second Defendant to perform earthworks and civil works described as 'construction of retention basin complete' on the premises."

[12] It is pleaded in paragraph 3 of the statement of claim that trucks, vehicles and machinery exiting the premises were transporting soil, rocks and other debris which had been excavated from the premises and would drop debris, dust, mud and clay over the surface of Halfway Drive in front of the premises. It is also alleged that the excavation works at the site caused significant dust and debris to be in the air which would end up coating the road surface of Halfway Drive in the immediate vicinity of the premises.

[13] The allegation is made in paragraph 8B of the statement of claim that the fifth defendant owed the plaintiff a duty of care:

"(a) To take reasonable steps to ensure that the earthworks and civil works it performed on the premises did not pose a foreseeable risk of injury to road users travelling along Halfway Drive in the immediate vicinity of the premises;

(b) To take reasonable steps to ensure that vehicles, trucks and machinery exiting the site were not creating a hazard or posing a foreseeable risk of injury to road users travelling along Halfway Drive in the immediate vicinity of the premises."

[14] This formulation of the duty of care by the plaintiff against the fifth defendant in paragraph 8B(b) alleges implicitly that the trucks, vehicles and machinery (or at least some of them) that exited the premises and dropped debris, dust, mud and clay over the surface of Halfway Drive were operated or controlled by the fifth defendant.

[15] The particulars of negligence of the fifth defendant are set out in paragraph 11B of the statement of claim as follows:

"(a) Failing to take reasonable steps to ensure that the roadway of Halfway Drive in the immediate vicinity of the premises was free from hazards caused by the construction works performed on the premises;

(b) Failing to implement an adequate system of cleaning in respect of vehicles, trucks and machinery exiting the premises onto Halfway Drive;

(c) Failing to implement an effective Rock Wash and/or a grid for vehicles, trucks and machines as they exited the premises onto Halfway Drive;

(d) Failing to erect an appropriate and effective silt fence to minimise dust pollution generated from the construction works."

[16] A defence was filed by the fifth defendant on 28 September 2015. An amended defence of the fifth defendant was filed on 11 May 2016. It was further amended on 3 June 2016 to raise the defence based on failure to comply with the MAIA. The gist of the defence is that another company associated with the fifth defendant, BJR Plant Hire Pty Ltd (BJR Plant Hire), provided a 350 excavator on hire to Lantrak Logistics Pty Ltd (Lantrak) on 6 March 2008 that was used by Lantrak or the other defendants to strip top soil, load out green waste, and load dump trucks with top soil for future construction works. (There is no search of Lantrak in the material, but it appears from the details of its addresses and the form of its booking docket that it was not a related company of the fifth defendant.)

[17] The fifth defendant also pleaded that the second defendant asked BJR Plant Hire in or about early March 2008 to excavate, cut and shape certain batters on the site and undertake surface preparation with gravel which was supplied by the second defendant and that work was completed in or about 25 April 2008. The fifth defendant further pleaded that Northbuild Civil Pty Ltd in or about early April 2008 asked BJR Plant Hire to hire certain earthmoving equipment and operators to Northbuild Civil Pty Ltd for the purposes of early earthworks at the site and that equipment and operators were supplied between 14 April and 30 May 2008 for which invoice number 1567 was rendered. The numerous job dockets relating to that work are identified in the defence.

[18] It is further pleaded that the equipment hired by Northbuild Civil Pty Ltd during April and May 2008 from the fifth defendant did not leave the site at any stage and was used solely at the direction of Northbuild Civil Pty Ltd and under the control of that company during that period. The fifth defendant alleges it was engaged subsequently and separately by the second defendant in or about the middle of 2008 to construct a retention basin at the site and that was carried out in or about September or October 2008. Documents disclosed by the fifth defendant in respect of site meetings support the allegation that the retention basin was not constructed until September/October 2008. That makes the unsigned subcontract between the second and fifth defendants irrelevant to the plaintiff's claim, apart from linking the fifth defendant to the name "BJR Earthworks".

The evidence of the fifth defendant's on site role in March-May 2008

[22] In 2008 BJR Plant Hire was a separately incorporated company with the same directors, Mr and Mrs Rodi, as the fifth defendant. BJR Plant Hire was deregistered under s 601AB of the Corporations Act 2001 on 16 January 2011. Mr Rodi has sworn an affidavit for the purpose of the applications that endeavours to explain the differing roles of BJR Plant Hire and the fifth defendant at the site.

[23] Mr Rodi deposes to factual matters that are the basis for the fifth defendant's defence. Mr Rodi refers to the job dockets numbered between 564 and 588 and dated between 8 and 29 May 2008 and job dockets numbered 4118 and 4120 dated respectively 6 and 12 May 2008 which are listed in the tax invoice 1567 as all relating to hourly hire work undertaken by BJR Plant Hire for Northbuild Civil Pty Ltd.

[24] It is difficult to reconcile Mr Rodi's allegation that BJR Plant Hire undertook this work with the contents of invoice 1567 which is headed in the name of the fifth defendant, although it has a stylised "BJR" on the invoice under which are the words "Plant Hire & Civil Construction". The job dockets numbered between 564 and 588 appear to come from a pre-printed docket book that shows the name of the supplier as "BJR Plant Hire & Civil Construction A division of Keentex Pty Ltd". Both the job dockets and invoice 1567 therefore support the plaintiff's allegation that it was the fifth defendant's vehicles that were on site in May 2008.

[25] Some of the job dockets that relate to invoice 1567 are also arguably consistent with the fifth defendant undertaking earthworks or civil works, apart from mere hire of vehicles. Job docket number 573 dated 15 May 2008 refers to "dig out wet spot in driveway, load spoil, load good fill" and also "cart fill". Job docket number 575 dated 16 May 2008 claims for two labourers in connection with "retain carpark entrance" and there is also a reference to "dig wet area in bus lane" and "cart fill".

[26] Amongst the documents disclosed to the plaintiff by the second defendant was a remittance advice from Northbuild to the fifth defendant in respect of a payment of $115,556.10 made on 16 May 2008 in respect of invoice 1496 dated 31 March 2008. That is supported by the second defendant's document entitled "Subcontract Payment Assessment" in respect of invoice 1496 being progress claim number 1 for subcontract C002S01 with the fifth defendant. That shows the contract value for excavation and cut and shaping batters as $155,180 in respect of which the payment of $115,555.10 was made with retention held of $8,534.90. Progress claim number 2 in relation to the same subcontract shows an extensive number of variations which appear to relate to surface preparation. The total value of the variations was $149,397.38. The revised subcontract value was shown as $304,577.38. Progress claim number 2 was made on 25 April 2008 in respect of which a payment was made by the second defendant of $127,259.87 and retention held was $8,216.86. The subcontract payment assessments in respect of the two progress claims are not easily reconcilable with the description of this work in paragraph 17 of Mr Rodi's affidavit, if it was intended to convey that a subcontract for a value of $304,577.38 was for hourly hire work only:

"Since all hourly hire work was invoiced on the day of the work (that was the usual way these invoices were issued in my business), this tells me that the date on the subcontract payment assessments of 31 March 2008 and 25 April 2008 (numbered 1496 and C002S01 PC2) would also have likely been the dates by which the work in those payment assessments work was undertaken."

[27] The second defendant's subcontract payment assessments of the claims dated 31 March and 25 April 2008 in respect of the subcontract noted as being with the fifth defendant are also inconsistent with the fifth defendant's allegation that it was BJR Plant Hire (and not the fifth defendant) that did the excavation and site preparation work for the second defendant in March and April 2008.

[28] During the course of the submissions, the plaintiff's counsel emphasised that, consistent with the pleading of the claim against the fifth defendant, the plaintiff relies on the earthworks and civil works undertaken by the fifth defendant on siteover the period of time from March to May 2008 leading up to the date of the accident that resulted in the problem on the road at the date of the accident.

[29] Despite Mr Rodi's affidavit and the provision by the second defendant to the plaintiff's solicitors of the incorrect subcontract document between the second and fifth defendants, the other documents provided at the same time by the second defendant to the plaintiff support the allegation that the fifth defendant was carrying out earthworks and civil works on the subject site from March 2008 until prior to the accident. The plaintiff's proposed amendment to the statement of claim to remove the description of the relevant earthworks and civil works as being the construction of the retention basin overcomes the fifth defendant's argument that there is no evidential basis for the plaintiff's claim against the fifth defendant. Such an amendment addresses the inconsistency in the facts presently pleaded in the statement of claim against the fifth defendant that the fifth defendant was carrying out earthworks and civil works prior to the date of the accident on 24 May 2008, but that the specific subcontract that is pleaded related to earthworks and civil works that were not undertaken until during September/October 2008 which was after the date of the accident. The substance of the allegations in the statement of claim against the fifth defendant will remain the same after the incorrect reference to the subcontract for the completion of the retention basin is removed. Such foreshadowed amendment does not add a new cause of action.

[30] Mr Godden was 38 years old and employed as a dump truck driver at the date of the accident. Mr Godden joined the army after school as a grade 2 field engineer and did not undertake tertiary education. He had experience driving trucks, front end loaders, bulldozers, tractors and similar machinery and obtained his proper licence for driving that equipment when he was aged 30 years. He had worked on many housing developments and also two road construction sites prior to the date of the accident.

[31] For two or three months prior to the accident, he would pass the Norfolk Village State School construction site travelling to and from work. On the days leading up to the accident, he observed dust, debris and dirt on or around the road which he described as being chunks of clay and rocks, ranging from pebble to cricket ball size. It was twilight when the accident occurred and Mr Godden did not actually see what it was that caused his motorcycle to slide.

[32] After the accident Mr Godden spent about two months in hospital and around nine months in a wheelchair, was on crutches or in a wheelchair on and off for the next two years, and was focused on recovering from his injuries and his daughter's welfare. In the three years following the accident Mr Godden underwent approximately 12 surgical procedures to his right leg and battled with severe infections and depression.

[33] He did go to the site when he was first released from hospital and took some photographs and recalled that it said "Northbuild Construction" at the gate, but the phone on which those photographs were taken has been lost.

[34] On two occasions in between operations, Mr Godden contacted two solicitors' firms for advice. He spoke initially with a local lawyer at Ormeau, but that firm has moved and Mr Godden has been unable to locate the solicitor to whom he spoke. He contacted a larger firm and that contact may have been a telephone call. On both occasions, he was advised that he would need to provide money to the solicitors in order to fund the claim. He was unable to work because of his injuries, he had no income and was therefore unable to proceed with a claim at the time he approached these solicitors. Around the time he approached his current solicitors, he saw an advertisement by them on the television and that prompted him to make the contact on 21 March 2011.

[36] Liquidators were appointed to the fifth defendant on 13 July 2009 to conduct a creditors' voluntary winding-up. Mr Rodi deposes to most of the records that were held in relation to the business being provided to the liquidators as part of that process. There is no affidavit from the liquidators as to the whereabouts of the fifth defendant's documents of which they were in possession.

[37] Mr Rodi also deposes to having moved home in about 2010 and in the process of moving destroyed most of the business records that he kept at his previous house. There is no suggestion, however, that those business records were those that related to the first half of 2008. Mr Rodi deposes, however, to not holding any documents now relating to the work at the relevant site at our about the time of the plaintiff's accident.

[38] Mr Rodi deposes to his limited recollection of the work undertaken at the site and the arrangements at the time as between the defendants or other corporate entities. He also states that he has "lost touch" with most of the people who were involved with the work and businesses of the fifth defendant and BJR Plant Hire at the time and he no longer holds records that would allow him to call or email them. There is no suggestion that Mr Rodi has made any inquiries about the whereabouts of those employees or contractors who were involved in the work on the site without recourse to records of telephone numbers or email addresses, such as by electoral roll or telephone directory searches or by making contact with work colleagues or friends of those employees or contractors who are likely to know their current whereabouts.

[39] The fifth defendant also relies on the general prejudice that is inherent in any delay in bringing a claim for personal injuries over six years after the date of the accident: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551.

Should the limitation period for the plaintiff's claim against the fifth defendant be extended?

[40] The plaintiff relies on the receipt of information from the second defendant's solicitors on 27 November 2013 identifying the fifth defendant as a potential defendant to the claim as the subcontractor which carried out earthworks and civil works on the subject site prior to the date of the accident as being a material fact of a decisive character relating to his right of action that was not within his means of knowledge until that date. That is the critical date for the purpose of the plaintiff's application, as the proceeding was commenced against the fifth defendant on 24 November 2014.

[41] Section 31 of the Limitation of Actions Act 1974 (Qld) (the Act) applies to actions for damages for negligence where the damages claimed include damages for personal injury and s 31(2) provides:

"(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

[42] The definitions that are set out in s 30 of the Act affect the interpretation of s 31(2) of the Act. Section 30 of the Act provides:

"(1) For the purposes of this section and sections 31, 32, 33 and 34 -

(a) the material facts relating to a right of action include the following

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if -

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."

[43] The plaintiff's position is that, even if he knew, in general terms, that there could have been subcontractors at the site at the relevant time which were undertaking site works, he had no basis on which to make a damages claim against any subcontractor until he knew the identity of the subcontractor and that the second defendant claimed there was a relevant contract with such subcontractor. It is relevant that, even though the proceeding was commenced against the second defendant in May 2011, it was not until two and one-half years later that the second defendant suggested to the plaintiff that the fifth defendant was the on site earthworks contractor prior to the accident.

[44] There is no dispute about the principles to be applied in an application under s 31(2) of the Act. The plaintiff bears the onus of proving he is entitled to an extension of the limitation period. Putting aside the limitation issue, the plaintiff must show there is evidence to establish the right of action against the fifth defendant. What that entails was explained in Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431 at 434-435:

"One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff's evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case."

[45] I have evaluated the evidence to establish the plaintiff's right of action against the fifth defendant, taking into account the foreshadowed amendment to the statement of claim. Leaving aside the fifth defendant's argument that it is fatal to the plaintiff's claim that he has not complied with the MAIA, there is otherwise enough in the material to point to evidence that satisfies the test in s 31(2)(b) of the Act.

[46] How s 30 of the Act applies to the discharge by the plaintiff of the onus in respect of s 31(2)(a) of the Act was explained in State of Queensland v Stephenson [2006] HCA 20; (2006) 226 CLR 197 in the judgment of Gummow, Hayne and Crennan JJ at [25]:

"The ascription to material facts of the character of 'decisive' looks to the response of an actor. It is here that the exegesis supplied by par (b) of s 30(1) comes into play. The court is to consider the response of 'a reasonable person' in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2)."

[47] The effect of the "compound conception" or composite expression "material fact of a decisive character relating to a right of action" was further explained by the plurality in [29]:

"The better view is that the means of knowledge (in the sense given by par (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have 'a decisive character'. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person 'knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing' the features described in sub-pars (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court."

[48] The plaintiff had taken all reasonable steps to find out if there were other parties against whom he should claim for damages for personal injury by serving his notice of claim under the PIPA on the second defendant and then commencing this proceeding against the second defendant. It is difficult to see how the plaintiff should have foreseen the need to ascertain whether there was any subcontractor undertaking on site earthworks leading up to the date of the accident, when the matter was not disclosed by the second defendant until after the failed mediation.

[49] Although the fifth defendant seeks summary judgment on the basis of alleged non-compliance with the MAIA, that issue is also relevant to whether the limitation period should be extended, because of the requirement of s 31(2)(b) of the Act. Apart from the issue of whether the MAIA applies to the plaintiff's claim, I am satisfied that the plaintiff has established the jurisdictional pre-requisites to permit the exercise of the discretion in favour of granting the necessary extension.

[50] On the issue of prejudice, the fifth defendant relies on the actual prejudice which it says is disclosed in Mr Rodi's affidavit. The analysis if that affidavit above shows that the material on which the submission of actual prejudice is based is incomplete and it would therefore be unsafe to accept it at full face value. The fact that the proceeding was commenced against the first, second and third defendants has resulted in the location of some documents (as shown by the second defendant's disclosure) that are also relevant to the fifth defendant. The prejudice that applies by mere effluxion of time has been mitigated. I am not persuaded that to the extent that there is any real or general prejudice that it weighs against the exercise of the discretion in the plaintiff's favour.

[51] The gist of the fifth defendant's argument is that the plaintiff's claim has no prospect of success against the fifth defendant, as the claim falls within the ambit of the MAIA, rather than the PIPA, and there has been no compliance with the MAIA.

[52] The fifth defendant points to the formulation of the duty of care alleged to be owed by the fifth defendant to the plaintiff set out in paragraph 8B(b) of the statement of claim and the particulars of negligence of the fifth defendant set out in subparagraphs (b) and (c) of paragraph 11B of the statement of claim. It is argued that it can be inferred from the statement of claim that the plaintiff is alleging that the fifth defendant's negligence caused the dust or debris to be deposited on the road. It is argued that as the plaintiff sustained personal injury while riding his motorcycle when the front wheel slid out, the requirement of s 5(1) of the MAIA is satisfied, as the personal injury to the plaintiff was caused "by, through or in connection with" the motor vehicle he was riding and, in particular, by the driving of the motorcycle or the motorcycle running out of control within s 5 (1)(a)(i) or (iii) of the MAIA.

[53] It is then argued that s 5(1)(b) of the MAIA is satisfied, as on the plaintiff's pleaded case, it was the dirt or debris that the fifth defendant was responsible for depositing on the surface of the road that caused the front wheel of the plaintiff's motorcycle to slide out, resulting in the plaintiff sustaining personal injury from the driving of the motorcycle or the motorcycle running out of control. The fifth defendant submits that the inclusion of the words "wholly or partly" in s 5(1)(b) indicates that the existence of an alternative basis of liability, other than one in relation to the motorcycle, does not exclude the operation of the MAIA. In short, the fifth defendant submits there was a connection between the fifth defendant's wrongful acts or omission which resulted in the dirt or debris on the road and the sliding of the motorcycle causing the plaintiff's personal injury in such a way that of the Act was satisfied.

"Section 5 provides that the MAIA applies to personal injury caused by, through, or in connection with a motor vehicle, if, and only if, the injury relevantly satisfies both the descriptions in s 5(1)(a) and in s 5(1)(b). The condition described in s 5(1)(b) is a cumulative requirement to the four described in s 5(1)(a), not a restatement of the conditions described in s 5(1)(a)(i)-(iv)."

[60] Similarly, Muir JA at [42] noted the structure of s 5(1) was that paragraphs (a) and (b) each relate to "the injury" identified in the subsection's introductory words and stated:

"Paragraph (a) does not qualify or relate directly to para (b) or vice versa. The two paragraphs are concerned with different matters. Paragraph (a) requires the relevant injury to be the result of one or more specified matters. Paragraph (b) requires the injury to be caused by a wrongful act or omission linked to the subject motor vehicle."

[61] The plaintiff's claim is not brought against the fifth defendant on the basis of dust or debris deposited by a particular motor vehicle belonging to the fifth defendant. The plaintiff's allegations are based on many deposits on the road over the time immediately preceding the date of the accident. On the basis of treating the motor vehicle for the purpose of s 5(1) as the plaintiff's motorcycle, then s 5(1)(a) cannot be satisfied, as the injury is as a result of the dust and debris falling off the trucks onto the road over a period of time which does not match any of the descriptions relating to the motorcycle in s 5(1)(a). In addition, it is unlikely that s 5(1)(b) can be satisfied, as submitted by the plaintiff, as there was no wrongful act or omission by the fifth defendant in respect of the motorcycle. On the basis of the fifth defendant's several trucks and other vehicles being treated as the motor vehicles for the purpose of s 5(1), then s 5(1)(a) cannot be satisfied as the injury is the result of the accretion of dust and debris that has fallen from the trucks over time which does not fall within the descriptions relating to the trucks in s 5(1)(a).

[62] It unduly strains the language of s 5(1) of the MAIA and is artificial to attempt to bring the plaintiff's claim within of the MAIA. It certainly does not justify giving judgment for the fifth defendant against the plaintiff on the basis of the pleading and, if this defence is to be pursued by the fifth defendant, it would be better considered in the light of evidence adduced at trial of the state of the road at the time of the accident, the contribution made to that by the fifth defendant's vehicles, and the mechanism by which the motorcycle slid on the dust and debris on the road.

[64] In the fifth defendant's amended application a specific order was sought that the proceeding against the fifth defendant was taken to have started on 24 November 2014 when the further amended claim and second further amended statement of claim joining the fifth defendant to the proceeding were filed. That was not a matter in issue and there is no purpose in making the order. The application for extension of time proceeded on the basis that was the case.

[65] The defendant's argument based on the MAIA has not succeeded at this stage of the proceeding and is not a reason to extend the limitation period. Provided the plaintiff amends its statement of claim against the fifth defendant to remove the incorrect description of the earthworks and civil works that the fifth defendant was retained to perform as "construction of retention basin complete", as foreshadowed during the argument of the application, it is appropriate to make the order extending the limitation period for the proceeding against the fifth defendant to and including 27 November 2014. I propose to make a specific order dealing with the timing of that essential amendment to the claim pleaded against the fifth defendant in the statement of claim, although such a specific order will not prevent the plaintiff making other amendments to the statement of claim that it may be advised to do so, as a result of the further information that has become available to the plaintiff, as a result of these applications. I also propose giving both parties liberty to apply in respect of these orders, in case there is any dispute about the amendments that the plaintiff may seek to make to the statement of claim.

[66] I considered whether leave is required for the plaintiff to withdraw the admission in the reply that the fifth defendant carry out the construction of the retention basin in September/October 2008. When the plaintiff makes the foreshadowed amendment to the statement of claim that will cause the fifth defendant to amend its defence in relation to its response to the allegation about the construction of the retention basin which will require the reply to be amended accordingly. The admission will become irrelevant as a result of amendments to the statement of claim and the defence and does not need to be dealt with as a withdrawal of admission.

[67] It will be necessary to hear submissions from the parties on the costs of the applications.