HIS HONOUR: There is currently before me an amended motion on notice. Notice of the original motion was filed on 9 April 2015. It was first returnable on 24 April 2015. On that day, leave was granted to the plaintiff to file an amended notice of motion, and that occurred on 8 May 2015. It is that application which is currently before me. The respondent to the application is CIC Allianz Insurance Limited which filed a notice of appearance on 3 August 2015. The respondent is CIC Allianz Insurance Limited because there is no dispute that it was the insurer of the registered company, which had it not been deregistered, would have been the respondent. At all material times the respondent had given a contract of insurance to G & S Mini Bus Pty Limited indemnifying that company against its liability to pay any damages under a third party policy issued pursuant to the Motor Accidents Compensation Act 1999 in respect of a motor vehicle registered number TV 35 74.
G & S Mini Bus Pty Limited was deregistered on 31 October 2012 and at the time of its deregistration had no assets. The plaintiff's claim is currently against Hallew Pty Limited trading as G & S Diesel Service. In fact, there is no relationship whatever between the current defendant and the company that would have been the respondent had the respondent not been deregistered. I trust that I shall be forgiven for referring to G & S Mini Bus Pty Limited as the second defendant, including in that description the current respondent. The plaintiff commenced proceedings against the first defendant by statement of claim filed on 20 April 2014. In essence, the plaintiff claimed damages for nervous shock from the first defendant. Paragraphs numbered 17 to 19 of the statement of claim as filed are these:
"17. The plaintiff was the late Mr Lees' wife at the time of his death and was therefore a 'close member of the family' of the late Mr Lees within the meaning of those words as used in s 30(2)(b) of the Civil Liability Act 2002. The plaintiff and the late Mr Lees had a very close and loving relationship up to the time of his death.
18. The defendant owed a duty of care to the plaintiff not to cause her mental harm because the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of a close family member being killed in an accident in which the bus ran out of control, suffer a recognised psychiatric illness if reasonable care were not taken.
19. The plaintiff suffered mental harm including a recognisable psychiatric illness caused by the sudden shock of being informed of the late Mr Lees' death and by reason of the psychological trauma of losing her husband."
The claim might be described using the parlance of the Civil Liability Act 2002 as a claim for "mental harm" or using the terminology used prior to the advent of the Civil Liability Act 2002, a claim for "nervous shock."
The late Graham Lees was the driver of a small coach or minibus on 14 May 2010. The minibus had the registration number TV 35 74. I shall refer to that vehicle hereafter as "the bus." The bus was owned and operated by the second defendant. The bus was involved in an accident and as a result of injuries received in that accident, Mr Graham Lees, died. It ought be clear from what I have already quoted that the plaintiff is his widow.
Exhibited before me is a Bus Safety Investigation Report published by the Office of Transport Safety Investigations and released under the provisions of s 45C(2) of the Transport Administration Act 1988 and s 46BA(2) of the Passenger Transport Act 1990. The report contains an executive summary. The first three paragraphs of that executive summary are these:
"At approximately 7.15pm on 14 May 2010, a coach on charter from G & S Mini Bus Pty Limited crashed through the guardrail on a tight curve on Moss Vale Road in the Barrengarry Nature Reserve then continued through dense bush down a steep embankment, finally coming to rest in an upright position some 40 metres from the road.
The driver of the coach suffered fatal injuries as a result of the accident and 27 of the 28 passengers were injured, with the condition of three initially classified as critical. The coach had been chartered by the Polish Australian Welfare Associate, Ashfield, on behalf of the group of volunteer carers for the sick and disabled, to attend an activity in Kangaroo Valley.
The investigation found that the rear brakes of the bus were ineffective due to inadequate maintenance, and that a transmission output retarder intended to reduce the demand on the brakes was disconnected. As a consequence, the front brakes, which were in good condition, were unable to control the speed of the bus on the steep downhill section of road and also became ineffective due to brake fade."
The first part of the report outlines the circumstances of the accident. It is convenient to quote a part of that part of the report:
"Location.
1.4. Main Road 79, is known as Nowra Road as it passes through Fitzroy Falls, and then becomes Moss Vale Road as it heads South East towards Kangaroo Valley. It is a two way sealed road linking the Southern Highlands with the coast, and is classified by the NSW Roads and Traffic Authority (RTA) as a Main Road. The accident site is in an area surrounded by dense bushland within the Barrengarry Nature Reserve. The area is mountainous and there are long steep descending gradients in several locations throughout the district.
1.5. Approximately 4 kilometres to the South side of Fitzroy Falls there is a long descending gradient for approximately 7 kilometres. The accident occurred towards the downhill end of this long gradient on the second hairpin bend…
Before the Accident.
1.6. The driver left the Company's Bringelly depot at 3.30pm in order to fuel and prepare the coach for the trip. He arrived outside the White Eagle Club at Cabramatta at approximately 4.45pm in order to pick up the group from the Polish Australian Welfare Association. The coach was chartered to take the group to the Kangaroo Valley Bush Retreat in Kangaroo Valley and then return 'empty' to the Bringelly depot.
1.7. The tour group left at approximately 5.15pm making their way onto the M5 freeway. They travelled in a Southerly direction towards Mittagong, taking the Mittagong exit, travelling through the townships of Mittagong and Bowral before passing through Fitzroy Falls at approximately 7pm.
The Accident
1.8. Approximately 4 kilometres after the township of Fitzroy Falls, the road begins to descend with a steep winding gradient. As the coach commenced the descent, witnesses reported that there appeared to be no signs of the driver having any problems with the vehicle. The coach travelled for approximately 5 kilometres down the steep descending grade before passengers began to notice that the vehicle was swaying and moving about in an uncomfortable fashion. Several people called to the driver to slow down while at the same time a strong acrid smell was becoming evident inside the coach. One of the passengers, a retired police officer, stated afterwards that the smell was that of burning brakes. As the coach began to gain momentum, more people began to call to the driver to slow down.
1.9 Marks found on the roadway and on the left hand verge indicate that the driver had tried to negotiate a sharp left hand curve, signposted with an advisory speed of 25 km/h. However…the bus continued across the road, crashing through the guardrail and over the embankment, coming to rest in an upright position some 40 m from the road. As the bus crashed down the embankment, the driver was thrown from the vehicle and sustained fatal injuries.
1.10. At the crash scene, the gear selector in the bus was found to be in the second range position…, and the front brake drums were extremely hot and discoloured. When the bus was winched back onto the roadway, the rear wheels were observed to be rotating freely, indicating that the spring brakes were ineffective."
Part 2 of the report contains "Findings." Under the subheading, "Causation," appear the following two paragraphs:
"2.1. Coach TV 35 74 was unable to negotiate a sharp left hand bend on a steep descent, causing it to run off the road, crash through the guardrail and down a steep slope because the vehicle's brakes could not control the speed of the vehicle.
2.2. The inability of the brakes to function as intended is attributable to the fact that:
* the rear brakes were ineffective, having been allowed to deteriorate to the extent that the linings had disintegrated and the brakes would no longer be effectively adjusted;
* the transmission output retarder [Jake brake] intended to reduce the demand on the service brakes, was disconnected;
* although in good condition prior to the trip, the front brakes could not meet the demand placed on them as a result of the lack of effective rear brakes and retarder."
The parties have approached the current matter on the basis that the cause of the accident was, in essence, for the matters set out in par 2.2 of the report.
The following facts are alleged in pars 8 and 9 of the statement of claim and, as the parties have approached the matter, these facts are not in dispute. On 3 May 2010, as part of a bi annual inspection for the registration of the bus, it was taken to the RTA facility at Campbelltown. As a result of the RTA inspection, a vehicle defect notice was issued under provisions of the appropriate regulation specifying a number of things. There were, in fact, five defects enumerated on the vehicle defect notice. The second defect was that on axle number 2 which I assume is the rear axle, more than a 30% brake imbalance was found between the wheels. Each of the five defects was required to be corrected. The defects were required to be cleared by a part inspection at a heavy vehicle authorised inspection station. On 5 May 2010 the bus was taken to the first defendant's premises and the first defendant was requested to issue a clearance in respect of the defect notice. On that day, the first defendant issued such a clearance in respect of each of the defects specified in the notice including a clearance in respect of the imbalance in the operation of the brakes on the rear axle. Although this is denied in the bus safety investigation report, it has been admitted by the first defendant that the bus was taken to the first defendant's inspection facility by Mr Simon Lees, the son of the deceased.
It is convenient at this point to return to describe the operations of the second defendant. The late Mr Graham Lees was born on 21 May 1952. At the time of his tragic death, he was almost 58 years old. His background has not been fully described but inferences can be drawn from what the plaintiff had to say in her affidavit sworn 19 June 2015. Paragraphs 3 to 9 of that affidavit are these:
"3. In or about May 1998, I met Graham, and we became de facto partners from about 1999.
4. Graham had his own children from his previous marriage and I had mine from my previous marriage.
5. In or about March 1999, I understand that Graham was the sole director of G & S Mini Bus Pty Limited (GSMB), which meant that Graham was also the only shareholder for GSMB.
6. In or about the same time, I commenced my employment with GSMB.
7. My position with GSMB was office manager.
8. My duties involved general office management, including bookkeeping, taking bus bookings for GSMB's customers, driving busses for schools, and supervising other employees. My usual work hours were about 40 hours a week, although I would work for additional hours.
9. These duties continued throughout my employment with GSMB until the death of Graham."
G & S Mini Bus Pty Limited was incorporated on 18 June 1999. I do not know if that was the date of the commencement of Mr Lees' owning a bus or busses and commencing a business which was subsequently incorporated, or whether the date of incorporation records the date of the commencement of the business. In any event, it can be seen by the middle of 1999, the late Mr Lees was the sole director and sole shareholder of the second defendant and that it was conducting a business providing coaches to the general public.
The Bus Safety Investigation Report tells me this about G & S Mini Bus Pty Limited:
"1.20. G & S Mini Bus Pty Limited is a bus and coach charter company operating in Western and South Western Sydney. At the time of the accident, the Company had accreditation from Transport NSW (TNSW) for 14 busses and coaches which were usually stored on its Bringelly property.
1.21. In the past, the company had predominantly operated local services for schools and small chartered groups. It was only in recent times that the Company had embarked on an expansion program of longer distance operations, taking on chartered services to places such as Canberra, Jenolan Caves, the Hunter region and other areas further away from Sydney.
1.22. In February 2009, G & S Mini Bus purchased five used busses and coaches from another local bus company trading as Steve's Mini Bus and Tours. The vehicle involved in the accident, TV 35 74, was one of the vehicles purchased in the sale. The sale also included charter and business contracts that Steve's Mini Bus and Tours had acquired throughout its operations, and the transfer of some drivers."
According to the evidence before me, the purchase of the additional busses occurred on 1 February 2009. The inference to be drawn is that the expansion of the company's business referred to in para 1.21 of the Bus Safety Investigation Report was a result of the purchase of the extra busses from Steve's Mini Bus and Tours.
February 2009 appears to have been an eventful time for all concerned. The late Mr Lees and the plaintiff married after having been de facto partners for perhaps almost ten years. Up until this time, the second defendant had an operations manager as well as the plaintiff who was the office manager. The late Mr Lees' son, Simon Lees, was then aged about 21, perhaps he was 22. He was an apprentice motor mechanic. He obtained that apprenticeship with a motor mechanic who ran a service station on the corner of Cabramatta Road and Townview Road, Mount Pritchard. It is clear that Simon Lees also worked for G & S Mini Bus Pty Limited. Perhaps the name of the second defendant reflects the use of the initials of Graham and Simon Lees and perhaps Mr Graham Lees had the intention of developing this company and retiring and handing on the business to Simon. That of course is mere speculation, but such things are common in families. Simon had been complaining to his father that the operations manager merely told him what to do such as to change tyres on the busses, to service them and the like. He thought he could do that job without the intervention of the operations manager. The operations manager was let go and, although I do not know whether this was a formal appointment or not, Simon Lees became the operations manager.
The evidence of the plaintiff makes it clear that the deceased was merely a bus driver. She said that he knew very little about busses and could barely keep an ordinary motor car in repair. As an apprentice motor mechanic, one would expect Simon to have greater mechanical knowledge than had his father. In addition to the office manager and the operations manager and bus drivers, the second defendant also employed a motor mechanic on a part time basis. He is identified in the evidence as Mr Michael Fassolouris. The Bus Safety Investigation Report says this about Mr Fassolouris:
"1.51. G & S Mini Bus employed a mechanic on a casual basis. The mechanic had been employed by G & S Mini Bus for the past three years, generally working approximately 30 hours a week. He stated that he usually wasn't too busy, just working at a consistent pace. The mechanic held a Tradespersons Certificate issued by the Motor Vehicle Repair Industry Council for work as a Motor mechanic, conducting repairs to all classes of motor vehicles, but had no specialised qualifications for working on heavy vehicles.
1.52. When interviewed, the mechanic stated that he conducted general repairs on all the vehicles including maintenance of the brakes. If he felt a job was too difficult for his level of expertise, he would outsource the work. He added that the transmission rebuild was one of those jobs that was simply too difficult to do, so the job was outsourced to a repairer at Milperra.
1.53. On 3 May 2010, when the RTA had 'defected' the vehicle for unbalanced braking, the mechanic adjusted the vehicle's rear brakes and had the vehicle test driven twice in order to obtain the correct balance. As he did not possess a NSW driver's licence, he utilised the son of the owner of G & S Mini Bus [Simon] to test drive the vehicle. The son confirmed this and stated that the brakes were fine when he had test driven the vehicle. He added that he had driven the coach to an RTA authorised inspection station to have the defect cleared. However, when the owner of the inspection station was interviewed, he stated that the son had not driven the coach to the repairer's workplace and that it was driven by a person unknown to him."
I have already adverted to the fact that the first defendant now admits in particulars delivered by it to the plaintiff's solicitors that the vehicle was in fact driven to the first defendant's premises by Mr Simon Lees. The plaintiff made clear, as is stated in par 1.52 which I have just quoted, that if the repairs were beyond the expertise of Mr Fassolouris, the job would be given to a specialist in heavy vehicle mechanics or in coach mechanics.
Of the qualifications of motor mechanics, the Bus Safety Investigation Report says this:
"1.72. Currently in NSW any person qualified as a motor mechanic can work on all classes of motor vehicles including heavy vehicles. Despite the major differences in critical systems such as brakes in light and heavy vehicles, there is no impediment to a mechanic with only light vehicle training and experience working on heavy vehicles.
1.73. Although the Technical and Further Education system [TAFE] provides a range of specialised courses related to heavy road transport and other heavy vehicle categories, a single Tradespersons Certificate covers all categories and makes it legal for the holder of a certificate as a Motor Mechanic to work on all categories of vehicle. It is likely that the poor brake and retarder maintenance found on TV 35 74 in this investigation was due, in part, to a lack of expertise on the part of the (light) vehicle mechanic preforming the basic maintenance work."
A critical finding as to the causation of the collision is set out in para 1.67 of the Bus Safety Investigation Report. It is this:
"The manual slack adjustors at the rear of the brake assembly were found to be covered with thick grime from a combination of grease and dirt…This indicated the brakes had not been adjusted for a considerable time, contrary to the statements by both the G & S Mini Bus mechanic and the RTA authorised examiner [the first defendant] that the brakes had been adjusted several times and were in good order just 11 days prior to the accident."
I have needed to cite that detail because of the nature of the objection to the relief sought by the plaintiff which is to join the second defendant as a defendant in these proceedings.
The plaintiff's application is under s 109(1) of the Motor Accidents Compensation Act 1999 ("MACA"). As more than three years have elapsed since the death of the late Mr Lees in the accident of 14 May 2010, the plaintiff needs the leave of this Court to commence proceedings against the second defendant. Section 109(3) of MACA provides this:
"The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident."
On 20 January 2015 CIC Allianz Insurance Limited advised the plaintiff's solicitors that they accepted the plaintiff's explanation for late lodgement of her claim as being full and satisfactory. The second defendant/respondent makes no submission about the claimant's having provided a full and satisfactory explanation to the Court for the delay in seeking to commence proceedings. I accept that such a full and satisfactory explanation has been provided. However, the defendant says that the total of the plaintiff's damages that might be recovered by her does not exceed the statutory threshold which is, for this accident, $102,000.
The question then becomes what damages is it likely that the plaintiff will recover? The first thing to note is that the plaintiff qualified Dr Bruce Westmore, a forensic psychiatrist, who examined her on 29 April 2014. Dr Westmore diagnosed the plaintiff as suffering from chronic Post-Traumatic Stress Disorder with significant depression and anxiety and also from a Persistent Complex Bereavement Disorder which was traumatic and an Alcohol Abuse which at the time that he examined the plaintiff on 29 April 2014 was in remission. He diagnosed a 22% whole person impairment (WPI). He believed the plaintiff was totally unemployable due to the intensity of her chronic symptoms of PTSD, anxiety, depression and bereavement.
The Motor Accidents Authority appointed Dr Inglis Synnot, a specialist psychiatrist as a medical assessor. He diagnosed a Major Depressive Disorder which was chronic with prominent anxiety symptoms, Bereavement/Grief and Acohol Abuse. The only significant differences of course are that Dr Westmore diagnosed PTSD but that diagnosis was replaced by Dr Synnot with a chronic Major Depressive Disorder. Otherwise the diagnoses are the same. Dr Synnot thought that the plaintiff could work for up to ten hours a week in "less demanding duties." He assessed the plaintiff's WPI as 8%. Accordingly, as against the second defendant, the plaintiff could not recover any damages for non-economic loss.
The plaintiff was required for cross-examination and gave brief oral evidence. I must say that the cross-examination was conducted most responsibly and in a dignified fashion. I have no hesitation in accepting the plaintiff as a witness of truth. In her affidavit, the plaintiff said this about an attempt that she was required to make to obtain Centrelink benefits:
"45. Between December 2012 and February 2013, Centrelink contacted me and requested that I work once a month at 'Meals On Wheels.'
46. However, when I worked for 'Meals On Wheels,' I had more nervous breakdowns and had to be put on more medication by my treating doctor."
In her own assessment she cannot do any work. If merely working once a month for Meals on Wheels is beyond her capacity, I do not accept that she is capable of working ten hours per week. I am prepared to accept for the purpose of this application that the plaintiff has been at all material times totally incapacitated and will not return to the workforce before her theoretical retirement age.
The plaintiff's past and future economic loss has been made on two different bases. The first basis is that the plaintiff's average weekly earnings in the financial year immediately prior to her late husband's death represents her ability to earn. However, those average weekly earnings were substantially less than they had been in earlier years and the reason for that is wholly explicable. I do not accept that those average weekly earnings reflect adequately the plaintiff's ability to earn. I accept the higher rates put to me by Mr Regattieri on behalf of the plaintiff. The plaintiff's schedule of damages was put before me as an exhibit. It is exhibit E-E. There is some dispute as to the extent of the out-of-pocket expenses. On one view they are $54,726. On another view, they are $59,418. I am not in a position to work out exactly what they were on this application, and accordingly approach the question on the basis that I should allow $57,500 for past out of pocket expenses. Past economic loss has been assessed for total incapacity as being $235,599. I may be forgiven for rounding that up to $236,000. Future economic loss calculated on the same basis has been calculated at $226,960. I may be forgiven for rounding that down to $225,000.
I accept that the plaintiff needs domestic care and assistance and will require it in the future. I have averaged out the two ways in which it has been calculated by the plaintiff. For example, for past domestic care and assistance, the plaintiff claims, if at least six hours per week are allowed, $44,226 for the past but, if up to 12 hours per week are permitted, the sum of $88,452. I have averaged that to allow $65,000 for past domestic care and assistance. For future domestic care and assistance, I have worked on the same basis and have allowed $75,000.
The plaintiff's schedule of damages does not claim anything for superannuation. On my calculations, past superannuation is approximately $26,000 and future loss of superannuation is $30,000.
The sum of those amounts is $721,500 which I may be permitted to round down to $720,000.
There then arises the legal issue in this case. The second defendant/respondent submits that the plaintiff's damages should be reduced by the contributory negligence of the deceased pursuant to s 30(3) of the Civil Liability Act 2002. Section 30(3) is in the following terms:
"Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim."
Clearly damages recoverable under MACA are to be reduced by the plaintiff's contributory negligence, or in the circumstances of the current case, by the victim's contributory negligence. So much has been long established by Reeves v Reeves [2002] NSWCA 181, a decision under the Motor Accidents Act 1988 on a similar provision to s 109(3) of MACA.
The interesting legal question in the current matter is whether I should also take into account an apportionment of liability between the first and second defendants. The plaintiff says I ought not do so. The defendant says I ought. The reasoning in Reeves v Reeves points, in my view, to the respondent's argument being correct. At [16] of Reeves v Reeves Foster AJA with whom Meagher JA and Campbell AJA concurred, said this:
"I am satisfied that 'the total damages of all kinds likely to be awarded to the claimant if the claim succeeds' reasonably, as a matter of construction, refers to damages likely to be recovered in the event of a totally successful claim. They contemplate that the plaintiff must demonstrate a viable primary claim; indeed, the necessity for so doing would be required in any event. That being so, in my view, it is reasonable to interpret the words of the section as contemplating the potential ultimate result of the litigation, having regard to all matters put before the Court in relation to the application to extend time."
Earlier in his reasons Foster AJA had pointed out that the plaintiff was in fact seeking an indulgence from the Court and the indulgence could only be granted if the applicant for the relief established an entitlement to obtain the leave. I have come to the view in the circumstances of this case that it is appropriate to take into account the extent of the apportionment of liability between the first and the second defendants.
Fortunately, however, the end result will be the same. In my view, the extent of the liability of the first defendant is greater than the liability of the second defendant. It is clear that misrepresentations were made by the second defendant to the first defendant. However, ultimately the statutory scheme required that the first defendant inspect and pass as satisfactory the work required to be done on the brakes of the bus. Ultimately, the safety of the bus for the driver and more particularly for the passengers is entrusted to a person such as the first defendant who is authorised to certify that any defect identified by the RTA has been removed. Indeed, it is the position of both the plaintiff and the second defendant that that is so. As between the first and second defendants, I would apportion 65% of responsibility to the first defendant and 35% to the second defendant. 35% of $720,000 is $252,000. What then ought be the contribution if any of the "victim"?
The victim ultimately had responsibility for the second defendant. The victim was its brain, the victim was its owner. Ultimate responsibility for the second defendant resided with the victim. He had a duty to make sure that the second defendant complied with the law. He had a duty to ensure that the company's employees did their work properly and in accordance with law. Even if he had no expertise himself, he was required to ensure that those that he employed did. However, the responsibility of an "ordinary bloke" in Australian society who has a small "family business" ought not be equated with the onus on the director of a multi-million dollar, multi-national corporation trading on a stock exchange.
The second defendant employed a motor mechanic. Although the motor mechanic's limitations were known, it was left to him to advise the employer that he lacked expertise to do certain things, if indeed the work was beyond him. In the current case the motor mechanic attended to maintenance of the brakes or was supposed to do so, and did not advise that it was beyond his ability but said that he did do the maintenance and it is clear from the finding of the makers of the Bus Safety Investigation Report that he did not do so.
The operations manager, Mr Simon Lees, had, as I have already indicated, had greater expertise than the victim himself. Clearly, as the victim's son, he was trusted by the victim. The expectations of fathers are often blasted by the performance of their sons. However, fathers are often known to be indulgent. Some assistance in this regard can be gleaned from the Bus Safety Investigation Report and its discussion about the "Jake brake". The maker or makers of the Bus Safety Investigation Report interviewed other drivers of the bus who had operated the bus prior to the accident.
It appears that in about 2009 the automatic transmission of the bus had failed and it required a full rebuilding of the transmission. For that it was taken to a specialist repairer as such repair was beyond the expertise of Mr Fassolouris. One driver who operated the vehicle on a number of occasions after the automatic transmission had been rebuilt noted that the Jake brake did not work. He said that he reported the defect to Mr Simon Lees and to the plaintiff but it was not repaired. He encountered difficulties in December 2009 when descending Bulli Pass. Paragraph 1.32 of the report says this:
"The owner's son (who also drove the coach) supported the claim that the retarder did not work when leaving the repairer's premises. He said that, while waiting outside a local school some weeks after the pickup date of 2 October 2009, he was talking to another bus driver about the defective retarder. This driver informed him that generally, if the retarder does not work, it is due to a wire that has come adrift either under the dash or on the side of the transmission. While waiting at the school, the son positioned himself under the coach and noted that a wire with a spade connector was disconnected. He reconnected the wire and found the retarder then worked perfectly."
However, another driver who drove the bus to Jenolan Caves on 10 October 2009 noted that the retarder or Jake brake was not working. He told Mr Simon Lees that that was the case. That is, he reported that the Jake brake was not working to Simon Lees on or shortly after 10 October 2009. Whether Mr Simon Lees made any attempt to reengage the retarder at that time I do not know. However, it is clear that Mr Simon Lees, the operations manager, knew about the retarder and how it could be disconnected and was able to reconnect it, but never ultimately did so prior to the fatal accident on 14 May 2010. In other words, Simon Lees knew about the problem with the retarder, knew of at least one way of fixing it, had a further fault in it identified to him but does not appear to have followed it up at all.
It appears to me, with respect, that the position of the victim is analogous to the position of an employer generally which has a non-delegable duty of care to its employees. Here the victim was in essence the second defendant and owed a non-delegable duty to others in his employ who included, of course, Mr Simon Lees and the mechanic Mr Fassolouris. However he, in essence, relied on their expertise just as an employee of labour who lets his labourers out for hire relies upon the hirer of the labour to provide the labourers with a safe place and a safe system of work. Doing the best I can, I would attribute 20% of the liability as between the second defendant and the victim. 20% of $252,000 represents $50,400 and the resultant 80% is $201,600. In my view, the plaintiff is likely to recover such damages from the second defendant. Accordingly, the plaintiff has persuaded me of that which she must persuade me pursuant to s 109(3)(b) of MACA.
For those reasons, I grant leave to the plaintiff to join CIC Allianz Insurance Limited as second defendant in these proceedings standing in the shoes as it does of G & S Mini Bus Pty Limited which has since been reregistered. I order that the costs of this application be costs in the cause, the fifth order sought in the amended notice of motion, and an order which the respondent did not oppose with any vigour at all.
I should ask, were there any further reasons you required?
HANNA: Not reasons but it's where we go from here. Your Honour would ordinarily make
HIS HONOUR: Yes. I'm not granting you leave to file that statement of claim within 28 days. The proposed amended statement of claim is defective. I mean as I pointed out, it doesn't even state who was negligent, what they did, et cetera, and I mean, as I said the use of a passive voice in cl 12(a)(c) is positively misleading.
HANNA: I was going to propose that the plaintiff be given a further 28 days to file an amended statement of claim. I would seek leave then to have 28 days to file a defence and any cross claims because as I anticipate, and I should in fairness to my friend, there will be cross proceedings between the new second defendant and the first defendant. I don't wish to bring a separate motion. I don't believe that I should.
REGATTIERI: That's suitable.
HIS HONOUR: You accept the criticisms I've delivered of the
REGATTIERI: Yes.
HIS HONOUR: Yesterday when the matter first came before me and I had outlined to me the gist of the plaintiff's case on liability vis-à-vis the second defendant, I expressed dismay at the pleading proposed by the plaintiff which did not adequately disclose what the plaintiff's case was on liability against the second defendant. Mr Regattieri graciously accepted that criticism.
I order the plaintiff to file and serve an amended statement of claim, properly pleading the plaintiff's case against the second defendant and making any consequential amendments as against the first defendant. I grant leave to the first defendant to file and serve an amended defence if that be necessary within 28 days of service of the amended statement of claim. The second defendant will have 28 days after service of the amended statement of claim in which to file any defence. If either of the defendants wishes to file and serve any cross claim then the defendant in question should file the cross claim with the amended defence or at the time the amended defence ought be filed, or with the defence.
[DISCUSSION AS TO SUITABLE DATES]
HIS HONOUR: I vacate the directions hearing on 27 August 2015. Stood over to case management directions list hearing on 15 October 2015. Exhibits to be returned.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 February 2016