The application in proceeding filed 19 August 2015 is dismissed with costs.

PERSONAL INJURY - Accident involving motor vehicle and electrically powered bicycle on shared path - application by defendants to vacate hearing dates for ten day trial - defendants contemplating claim against government entities in relation to design, construction and maintenance of shared path - consideration of interests of justice including consideration of personal circumstances of plaintiff, opportunities for preparation for trial, uncertainty of contemplated claim, allocation of court resources - application dismissed

Civil Law (Wrongs) Act 2002 (ACT) s 21

Limitation Act 1985 (ACT) s 21

Court Procedures Rules 2006 (ACT) rr 21, 316, 1506

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Barclays Bank v Tom [1923] 1 KB 221

Port Pirie City and Districts Council v Leenders & Partners Pty Ltd [2001] SASC 208

The Portland Downs Pastoral Company Pty Ltd v Great Northern Developments Pty Ltd [2010] QSC 467

Traynor v Australian Capital Territory [2007] ACTSC 38

Insurance Australia Limited trading as NRMA Insurance (Second Defendant)

1. The defendants in personal injury proceedings applied to vacate a ten day hearing scheduled to commence next Monday. The application was filed on 19 August 2015. It was heard yesterday, 25 August 2015. The hearing which was sought to be vacated is listed to commence on 31 August 2015 and run until 11 September 2015. At the conclusion of argument on the application I dismissed the application with costs and indicated that I would give my reasons today. These are my reasons.

2. The accident the subject of these proceedings occurred on 20 January 2012. As a result of the accident the plaintiff was rendered a quadriplegic. The accident occurred when the plaintiff was riding an electrically powered bicycle along a path in Milford Street in Latham in the Australian Capital Territory. He collided with a vehicle that was reversing from the driveway of a house on that street.

3. The proceedings were commenced by originating claim filed on 29 November 2013. The defendants filed their defence on 2 April 2014. The defendants have denied liability and, if liability is established, have contended that the accident was wholly or partially caused by the contributory negligence of the plaintiff.

4. At a directions hearing on 11 July 2014 Penfold J noted that the parties were seeking dates for a five day hearing early in 2015. On 8 August 2014 the parties were given leave to approach the Registrar to seek an earlier hearing date before another judicial officer than was available before Penfold J. On 29 August 2014 her Honour noted that the plaintiff estimated that the hearing would take two weeks and gave leave to approach the Registrar to obtain hearing dates before any judicial officer. On 14 October 2014 the proceedings were listed for hearing in the central civil list commencing on 13 April 2015 with an estimate of five to eight days.

5. The proceedings were first listed for directions before me on 12 March 2015. On that occasion the plaintiff foreshadowed an application to vacate the hearing date and I made directions in relation to that application. On 19 March 2015 I vacated the scheduled mediation and the hearing listed to commence on Monday 13 April 2015. I made directions relating to the preparation of the matter including directions in relation to expert reassembly or reconstruction of the plaintiff's electric bicycle. Following that directions hearing, on 26 March 2015 I listed the matter for hearing as a special fixture for two weeks commencing on 31 August 2015. On 24 April 2015 and 1 June 2015 the timetable for the preparation of the proceedings was adjusted.

6. On 1 July 2015 the plaintiff served an expert report going to liability of Grant Johnston dated 30 June 2015. A supplementary report from William Keramidas, an expert engaged by the defendants in relation to liability, dated 27 July 2015, was served some time after that date. That report includes the following:

It is evident from the author's inspection of the site, and it appears to be confirmed by photographs contained in Mr Johnston's supplementary report, that there are a number of driveways along this section of Milford Street which do not provide sufficient sight-lines to enable relevant stopping sight distances to be achieved.

Therefore, while this section of shared path would be defined as an 'intermediate path' or a connection to a 'trunk' path, it appears that no consideration was given to its construction or alignment so as to be in-line with the various design standards and guidelines applicable to bicycle paths. If its intended use was designed for, then there has been a failure to maintain the path as described in Section 6.7 of the AustRoads guide, which includes a notation that regular maintenance activities should include:

"Trimming of trees and shrubs to maintain safe clearances and sight distances."

Ultimately, if the cycle count and speed data collected by Mr Johnston is representative of 'normal' cycle speeds along this section of shared pathway, then it could be considered as being particularly hazardous and not in accordance with good engineering design or practice. In the present author's opinion, the relevant road authority should have re-directed the shared path onto the roadway along the section of Milford Street where property frontages could reasonably be expected to create conflict points with high speed bicycles, returning it to the shared path at the western end of the roadway. It is not sufficient to declare it a "shared path" merely by changing its name.

7. An affidavit of Kent Owen, the solicitor with carriage of the matter on behalf of the defendants, affirmed 19 August 2015 records the following matters arising out of the statement of opinion by Mr Keramidas:

1. To date the individual liability expert evidence in these proceedings suggests the possible cause or causes of the collision at issue in this matter were either:

(a) the manner in which the first defendant drove the motor vehicle;

(b) the manner in which the plaintiff rode an electrically powered bicycle;

(c) the defective design construction and maintenance of the shared path;

(d) a combination of any two or all three of the above factors;

1. I say that from the defendants' perspective, the proper preparation of this matter now requires the issue and service of a subpoena for production on the ACT and Australian Governments, among other things, calling for material relating to the proper design, construction, maintenance and implementation of the shared path at 20 Milford Street Latham where the subject accident occurred on 20 January 2012.

1. I seek orders that the hearing date in these proceedings be vacated to allow time for the issue of subpoena for production on the ACT and Australian Governments and any related subsequent subpoena on other potential, as yet unidentified parties, and if appropriate the filing and service of appropriate third party notices in these proceedings.

8. After Mr Owen's affidavit was prepared a joint report of the experts engaged by the plaintiff and the defendants become available. The terms of that joint report are said by the defendants to strengthen the contention that there may be a claim against either the Commonwealth or Territory governments. In that report the opinions of the two experts are recorded as follows:

"WK [Mr Keramidas] presented (in his supplementary report of 27 July 2015) his views regarding the deficiency in creating a 'de-facto' cycle path in an area which obviously involved a number of driveway crossings and vegetation to property boundaries.

AJ [Mr Johnston] considered this to be an urban planning issue. At the time of the Conclave it was not known which preceded which (in terms of sub-division or cycle path), however all experts agreed that having a path which is used by commuter cyclists in such close proximity to driveways, where vegetation was at the same time permitted to the boundary, was inherently hazardous. The experts agree that this was particularly so when there would be a fairly simple solution (given the site layout and available adjacent open space) for the commuter cycle traffic to be redirected onto the road surface of Milford Street, noting that Milford Street formed a crescent and therefore very low motor vehicle traffic volumes would be expected.

WK proposed that a simple solution, being very cost effective yet efficient, would involve the painting of lines deflecting the cycle path along the double driveway on the southern side of Milford Street and perhaps complemented by one or two bollards along the western edge of the double driveway to reinforce the redirection.

A further alternative proposed by WK would be to provide signage near the crest of the hill, indicating to cyclists to 'slow down due to concealed driveways over the next 100 metres'.

9. As a result of this evidence the defendants sought a vacation of the hearing date so that the Australian Capital Territory and/or the Commonwealth could, subject to appropriate further investigation, be joined to the proceedings as third parties. Senior counsel for the defendants submitted that the case against the Commonwealth or Territory governments may relate to both the design and construction of the shared path in relation to the adjoining blocks as well as the management of the shared path having regard to its use and adjoining vegetation which had the potential to obscure sight lines. He identified, as an example of a previous case in this Court similar to that which might be brought by the defendants, the decision of Connolly J in Traynor v Australian Capital Territory [2007] ACTSC 38.

10. At a point in time when the defendants had admitted liability, payments had been made to the plaintiff for his costs of care. Those payments ceased in September 2013 when, as a result of further investigation of the circumstances of the accident, that admission was withdrawn and liability denied. In support of the present application the defendants have offered, pending the determination of the proceedings, to pay on a non-admission basis the plaintiff's reasonable treatment and daily care expenses. Those payments would be not recoverable in the event that the plaintiff was not successful in the proceedings but if the plaintiff was successful they would be treated as recoverable.

11. The defendants submitted that they are entitled to bring a claim for contribution pursuant to s 21 of the Civil Law (Wrongs) Act 2002 (ACT). They accepted that in the present case there is no issue with respect to such an action becoming statute barred because under s 21 of the Limitation Act 1985 (ACT) they would be free to bring a claim for contribution within two years of any judgment or settlement of the primary proceedings or four years from the expiry of any limitation period in the original cause of action, whichever is the earlier.

12. The defendants emphasised that the general aim of third party proceedings is to ensure finality of litigation, to avoid multiple proceedings and to prevent the same questions being tried twice with the potential for different results.

13. They submitted that the potential injustice to the plaintiff would be minimised by payments already made by the second defendant and by the fact that the second defendant offered to make additional payments to the plaintiff pending determination of the proceedings.

14. The defendants accepted that it was open to them to investigate the possibility of a claim against the Commonwealth and/or Territory governments earlier in the proceedings but submitted that the focus of the case had earlier been on the conduct of the plaintiff and the first defendant as a result of the investigation into the accident conducted by the police.

15. Senior counsel for the plaintiff pointed to the personal circumstances of the plaintiff. He identified the amount of care currently received by the plaintiff and funded by the ACT government and contrasted that with the medical evidence about the required level of care claimed in these proceedings. The plaintiff has, since the accident, separated from his wife and resides with his two adult sons. Both sons are employed. As a consequence the plaintiff spends considerable time alone during which, because of his physical incapacity, some of his needs are or may not be met. He wishes to have a carer to be available to assist him at all times.

16. Senior counsel outlined the chronology relating to the circumstances which gave rise to the desire of the defendants to explore a claim against the Commonwealth or Territory governments. In particular he pointed to the following:

(a) the statement of claim identified that the accident occurred on a shared path which formed part of the Canberra & Queanbeyan Cycling and Walking Route;

(b) the defendants' liability expert, Mr Keramidas, inspected the site on 7 October 2014 and identified it as a shared footway and cycleway;

(c) in a report dated 16 February 2015 Mr Keramidas identified the plaintiff's speed at the point of impact as being in the range 22-31 km/h or alternatively 24-36 km/h and suggested that the speed of a cyclist at the accident location was likely to be in the order of 10 km/h;

(d) as a result of this the plaintiff's expert Mr Johnston conducted speed surveillance at the accident location in March 2015 and recorded the speeds of cyclists travelling in the same direction as the plaintiff in the range 14-26 km/h;

(e) as a result of this Mr Keramidas in his report of 27 July 2015 made the comments about compliance with various road and bicycle standards which include the conclusion set out above;

(f) the speeds recorded by Mr Johnston are consistent with the lower end of the speeds identified by Mr Keramidas in his first report.

17. The plaintiff submitted that it was always open to the defendants to determine the speed of users of the cycle path so as to compare the use of other path users with the speed of the plaintiff prior to the accident and draw any conclusions about the construction or management of the shared path.

(a) the plaintiff suffers an extreme physical disability and has a wish to finalise his claim against the defendants;

(b) if the claim is delayed he will be unable to purchase his own home to establish some permanence, quality and dignity in his living arrangements;

(c) there is further disadvantage to the plaintiff in so far as the memories of lay witnesses will deteriorate with the passage of time;

(d) the fact that the defendants seek an adjournment to issue subpoenas and do not have a present intention to proceed against any other party will mean that the proceedings will be delayed by one to two years;

(e) the defendants are not foreclosed from third party proceedings as they may issue proceedings against a third party within two years from a judgment against them or 20 January 2019 whichever is the earlier;

(f) the desirability of avoiding multiple proceedings must be subservient to "an orderly progression to a fixed trial date": Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [32].

19. The object of third party proceedings and the desirability of having all issues between plaintiff, defendant and third parties decided in a single set of proceedings have been described in a number of cases: Barclays Bank v Tom [1923] 1 KB 221 at 224-225; Port Pirie City and Districts Council v Leenders & Partners Pty Ltd [2001] SASC 208 at [36]. There have been some differences in the authorities as to the test to be applied when considering an order that third party proceedings be heard and determined separately from the substantive proceedings: see The Portland Downs Pastoral Company Pty Ltd v Great Northern Developments Pty Ltd [2010] QSC 467 at [33]- [35]. In the Territory, the relevant test is identified in r 316(3) of the Court Procedures Rules 2006 (ACT) ('Rules') which identifies that such an order may be made if the Court considers that hearing the proceedings together would:

(a) unfairly prejudice a party; or

(b) embarrass or delay the hearing of the proceedings; or

(c) be otherwise inconvenient.

20. In the present case this rule does not have any direct application because no third party proceedings have, in fact, been commenced. They are merely contemplated by the defendants. However the terms of r 316(3) of the Rules are useful in that they describe factors relevant to a consideration of whether it is in the interests of justice, understood in the context of r 21 of the Rules, that the proceedings be heard separately. The Rules see fit to make express provision in relation to the power of the Court to adjourn or postpone a trial: r 1506. I approached the present matter on the basis that I was required to consider whether it is in the interests of justice, understood in the context of r 21 and having regard to the advantages of the third party procedure, that the hearing listed to commence next Monday be vacated.

21. In my view this was a clear case in which the application for vacation of a hearing date should be refused.

22. I accepted that the defendants are facing a very substantial claim. Senior counsel for the defendants referred to a claim in the order of $12 million and I accepted, therefore, that the potential for a claim for even a modest percentage contribution would be a significant one so far as the defendants to the present claim are concerned.

23. However there were five considerations which taken together led me to exercise my discretion to refuse the application.

24. Firstly, the defendants have had a fair opportunity to investigate and bring a claim against the Commonwealth and/or the Territory in these proceedings. Having regard to the physical relationship between the shared path and the adjoining driveways on the relevant section of Milford Street it was at all times open to the defendants to obtain expert advice as to whether the construction or management of the shared path involves a breach of duty by the Territory or the Commonwealth. While the perceived desirability of joining third parties may have increased as a result of obtaining and considering the speed data collected by Mr Johnston, it was always open to the defendants to investigate the speed of comparable path users had they wished to do so. Thus, while the chronology does explain how the focus of the defendants has been shifted from the conduct of the plaintiff to the possibility that other entities may be concurrent wrongdoers, in the context of an application to vacate a hearing date that does not provide a compelling justification in circumstances where properly resourced defendants have been in a position to choose how to approach the defence of the case from the beginning and have chosen to approach it in a different manner from that which they now seek to investigate.

25. Secondly, so far as the plaintiff is concerned the resolution of the case is an important one not simply because of the personal stressors associated with litigation but also because the finalisation of the proceedings will permit the plaintiff, if he is successful, to enter into permanent arrangements relating to his accommodation, treatment and care. Depending upon the amount recovered, there is at least the possibility that the amount of care available to him will be significantly greater than that which is available at present. The offer to make interim payments and the payments that have previously been made to the plaintiff are, while significant, no substitute for a final determination of the plaintiff's claim. That is because they are necessarily limited (at least when compared to what the plaintiff has claimed) and deny the plaintiff the autonomy that he might be able to achieve with the fruits of a judgment or settlement.

26. Thirdly, the nature of the claim to be made against one or other of the governments and, indeed, whether or not any claim will be made against either of them is, at this stage, uncertain. While senior counsel for the defendants submitted that there was a prima facie case against one or other of them, the investigation of the merits of any such claim is really in its infancy. Apart from identifying the possibility that a claim may relate to both the construction and management of the shared path little more could be said about the claim. The preliminary nature of the investigations into the case and the fact that it is not clear whether any such case will ultimately be brought are all factors which tend against the vacation of a hearing date which has been in place for a long time and is imminent.

27. Fourthly, significant court resources have been allocated to the hearing date which is imminent. Necessarily, other cases have not been listed in that period because of the listing of the matter. The progress of the case towards hearing and judgment would obviously be substantially disrupted if the hearing date was vacated.

28. Fifthly, because there is no limitation issue for a claim for contribution against a third party, the detriment arising from addressing claims for contribution separately is the potential for multiplicity of proceedings and inconsistent findings. The plaintiff correctly conceded that the avoidance of a multiplicity of proceedings is desirable but that it is subordinate in the circumstances of the present case to the need to proceed in an orderly manner towards hearing. In so far as there is the potential for additional costs and difficulties involved in the possibility of proceedings for contribution against other entities that potential arises from the manner in which the defendants have chosen to conduct the proceedings to date in circumstances where they have had a fair opportunity to investigate and prosecute such claims if they had wished to.

29. In summary the vacation of the hearing date would have had a substantial adverse effect upon the plaintiff even taking into account payments made to the plaintiff in the past and the reasonable offer made by the defendants to continue payments pending the ultimate determination of the proceedings. The vacation of the hearing date would have been inconsistent with the steps taken to date that have given the parties a fair opportunity to prepare their cases and have the proceedings heard in the two weeks commencing on Monday. While there is possible prejudice to the defendants in having to proceed separately against any other parties from which they seek contribution, the necessity to do so has arisen from the manner in which the defendants have chosen to conduct the case and would not, in the circumstances, justify the substantial delay and detriment to the plaintiff that would necessarily have arisen from the vacation of the hearing dates.

30. It is for these reasons that I was not satisfied that it was in the interests of justice to vacate the hearing listed to commence next Monday and that I dismissed the defendants' application.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.