In proceedings commenced on 25 September 2018, the plaintiff, Veolia Energy Technical Services ("Veolia") seeks damages from the Roads and Maritime Service ("RMS") arising out of the death of one of its employees, Mr Denyer, who was employed by Veolia as an air conditioning mechanic. On 13 July 2016, Mr Denyer was in the course of his employment for the plaintiff when a large tree fell on the motor vehicle he was driving on Mount Ousley Road, Wollongong. Mr Denyer lost control of his vehicle which then collided with a concrete barrier. He died from his injuries.
Mr Denyer had a dependant partner and child at the time of his death. They were entitled to a lump sum benefit which was payable by Veolia, as his employer, under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW). Veolia now seeks indemnity for the payments which have been made to Mr Denyer's dependents on the basis that it was the RMS's negligence which caused Mr Denyer's death.
By notice of motion dated 10 February 2020, Veolia seeks leave to file an amended statement of claim. That application is opposed by the RMS.
[3]
The plaintiff's statement of claim
In its statement of claim filed on 25 September 2018, Veolia alleges that the RMS was negligent in failing to adequately inspect Mount Ousley Road and the associated road reserve area to identify dead trees and to ensure dead trees were removed prior to them falling.
Veolia also alleges in 6(d) of the statement of claim that the RMS failed to have any system or any adequate system for the inspection of Mount Ousley Road and associated road reserve area in order to identify dead trees and remove them. It is pleaded that the risk of trees falling was foreseeable and could cause injury to those using the roadway. Alternatively, the plaintiff relies on res ipsa loquitur.
[4]
The defence
In its defence filed on 5 December 2018, the RMS contends that although the Wollongong City Council was the relevant Road Authority for Mount Ousley Road, the RMS was responsible for maintaining the road and road reserve area via an agreement with the Council under s 62 of the Roads Act 1993 (NSW). In response to the allegation that it failed to remove the dead tree, the RMS relies on the provisions of the Civil Liability Act 2002 (NSW) in relation to public authorities. It asserts that it did not own the property that the tree fell from and, as such would have had to have used a special statutory power to enter the property. It also asserts that failure to do so was not so unreasonable that no authority having that power would consider it reasonable (as required by s 43A).
As for the allegation that it failed to maintain an adequate inspection system, the RMS relies on s 42 of the Civil Liability Act: Its function is determined by reference to the broad range of its activities, including the inspection, construction, design, repair and maintenance of roadways and associated infrastructure throughout the State of New South Wales. Given this, the RMS contends, its ability to supervise the Mount Ousley Road was limited.
Finally, in the event that the RMS was found to owe a duty of care to the Veolia, it relies on the defence in s 45 of the Civil Liability Act.
On 12 August 2019, the matter was fixed for hearing on 12 October 2020 for seven days.
[5]
The expert evidence
On 26 June 2018, Veolia sought an expert report from an arborist, Ms Melanie Howden. The report was obtained on 20 August 2018 and subsequently served on the defence. In her report, Ms Howden relied upon footage of the trees obtained from public sites Nearmap, Google Earth and SIX Maps in order to provide her expert opinion as to why the tree fell when it did.
On 6 May 2019, the RMS served a statement from Damien Brunton, a project engineer with the RMS, on Veolia. This statement details the existing measures for inspection of the Mount Ousley Road and the reserve area. This report was not before the Court but, as I understand it, it includes, in lay terms, as Mr Brunton is a lay expert, the system put in place by the RMS. That system includes driving on the road at the posted speed limit and inspecting it for faults on the roadway. The report also sets out that there was a routine for these inspections which included making sure that the vegetation was maintained at the relevant areas and that the trees did not pose a danger to the public.
On or around 18 June 2019, the RMS received an expert report from Peter Castor, which was served on Veolia on 20 June 2019.
On 28 August 2019, Veolia's solicitor wrote to Ms Howden seeking her comment on a number of additional matters including accessibility of websites such as Nearmap, Google Earth and SIX Maps and whether, if they had been accessed by RMS, the death of the tree could have been detected before the accident by an arborist.
On 17 September 2019, Veolia served a supplementary report of Ms Howden on the RMS's solicitors. Of particular significance, Ms Howden suggested that an arborist would simply have viewed the aerial footage from the publicly available internet sites in order to have observed the dead tree before it fell.
On 4 December 2019, the RMS's solicitors advised Veolia that they objected to this second report of Ms Howden because it addressed matters that were outside Veolia's case as pleaded, it failed to satisfy s 79 of the Evidence Act 1995 (NSW) and it included new matters which were not in reply to the Castor report or, for that matter, the Brunton report.
In response to these objections, a proposed amended statement of claim was then served on the RMS on 18 December 2019.
On 31 January 2020, the RMS advised that it was opposing all amendments to the statement of claim.
[6]
The proposed amendments
The proposed amendments to the statement of claim primarily concern appropriate procedures that Veolia claims the RMS should have followed to prevent the risk of harm to Mr Denyer. The proposed amendments to paragraph [3] and the introduction of paragraph [4A] simply particularised the RMS's duties under the RMS's QA Specification M3. These amendments are not objected to.
Other proposed amendments to the statement of claim in paragraphs [4B]-[4E] clarify Veolia's case on reasonable foreseeability, the probability of risk of harm and the actions of a reasonable person in the defendant's position (see s 5B and 5C of the Civil Liability Act and Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48; [1980] HCA 12 per Mason J). The RMS does not object to these amendments either as these are matters which require proper articulation in the pleadings (see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22] per Meagher JA; Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [37], [41] per Payne JA).
The disputed amendments are those contained in paragraphs [6] and [7] of the proposed amended statement of claim. Paragraph [6] is in these terms:
"If a proper system of inspection, identification of potentially dangerous trees and the lopping or removal of such trees had been implemented and followed by the Defendant, the dead tree would have been identified and removed or lopped to a safe height before 13 July 2916."
Paragraph [7] concerns an alternate system the RMS should have used to inspect the roadway which involved the use of internet resources such as Nearmap, Google Earth and SIX Maps by a suitably qualified arborist to identify decline in the tree canopy.
[7]
The plaintiff's submissions
In written submissions filed on 25 March 2020, Veolia submitted that the Court should grant leave to allow it to amend the statement of claim in order to better articulate a case already pleaded and to provide additional particulars of an available alternate system. It is submitted that, while the original pleadings were not deficient, they did not clearly articulate the risk of harm or the precautions that a reasonably competent public authority would have taken in response to that risk.
Furthermore, it is submitted that the amendments in paragraph [7] about the alternate system were important to Veolia's case given that the RMS asserts that the existing system outlined in Mr Brunton's affidavit and in the Castor report was all that it could afford (relying on s 43A of the Civil Liability Act).
In response to the RMS's submission that these amendments would unnecessarily delay proceedings because of the need to assess costs of the alternate system, Veolia submitted that as the alternate system only involved the "cost of having an arborist conduct a periodic review of photos on the internet, there would appear to be little difficulty in estimating the cost".
Finally, reliance was placed on the principles derived from Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27 ("Aon") at [14], [27], [30], [93], [96] and [97] that a court should permit amendments if their purpose is to accurately reflect the matters really in dispute between the parties.
[8]
Defence submissions
In submissions filed on 25 March 2020, the RMS conceded that the proposed amendments are significant and necessary to particularise the standard of care that it owed to Mr Denyer but it objected to the proposed amendments on three bases.
First, it was submitted that there is no satisfactory explanation as to why the issue of the alternate system was only raised in December 2019 when the plaintiffs have been in possession of the Howden report since August 2018 and the supplementary report since September 2019.
Secondly, the RMS submits that the amendments would require it to file further evidence which goes beyond estimating the cost of an arborist examining internet photographs. It is contended that further lay evidence from Mr Brunton and further expert evidence from Mr Castor would be required because "consideration of the Alternate System has state- wide ramifications for all of the road reserve areas managed by the RMS." It is further submitted that the RMS is responsible for 18,036km of State roads, including 4,317km of the National Road Network, 147km of privately funded toll roads and 2,970km of regional and local roads.
Finally, the RMS submitted that addressing and putting on evidence about the cost of the alternate system might result in a delay up to 12 months given the uncertainty surrounding the current COVID-19 pandemic. In this respect, the defence relied on the affidavits of Ms Jane De Saint Simon sworn 19 February 2020 and 25 March 2020. Ms De Saint Simon is the solicitor with daily carriage of the matter for the defendant. At paragraph [8] of her second affidavit she deposed that the RMS road network is divided into a number of regions which means that the defendant will have to:
"8.1 identify the relevant person responsible for the region;
8.2 make inquiries as to the existence of road reserve areas for which the RMS is responsible;
8.3 make inquiries as to the number/density and types of trees contained in any road reserve area;
8.4 make inquiries as to whether the internet resources identified by the plaintiff's expert include the relevant road reserve areas and what information/how often it is updated in relation to the relevant road reserve areas - it may be different for different parts of NSW;
8.5 seek input from an expert aboriculturalist as to the costs associated with having a "suitably qualified person" review the internet resources identified by the plaintiff's expert." (sic)
There was objection by the plaintiff to these and those other parts of Ms De Saint Simon's affidavits where an estimate as to the time it would take to make these enquiries. The defendant accepted that it is difficult to predict what that timing was and, beyond the assertions by Ms De Saint Simon, there is no evidence before the Court from the RMS as to how long those enquiries would take.
[9]
Consideration
The dispute of the proposed amended statement of claim is confined to paragraphs [6] to [7], which are set out above. The power of the Court to amend a pleading is to be found in s 64 of the Civil Procedure Act 2005 (NSW) ("CPA"). That section provides:
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order --
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
…
The power to amend a document in the proceedings is clearly a discretionary one. It is to be exercised both in accordance with ss 56 - 61 of the CPA as well as the fundamental principles concerning case management discussed by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Aon. That decision is well known and [102] and [112]] are pertinent. In Kelly v Mina [2014] NSWCA 9, Barrett JA (with whom Ward JA and Leeming JA agreed) summarised the relevant principles and observed that, consistent with the principles set out in the CPA, the court is required in an application such as this to act in accordance with the dictates of justice and also have regard to the overriding purpose of the Act. The Court then referred to the convenient summary of the factors identified by the High Court in Aon by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 (at [38]) as follows:
"(a) Whether there will be substantial delay caused by the amendment;
(b) The extent of wasted costs that will be incurred;
(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;
(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought."
I have had regard to all of these considerations and am satisfied that leave to file the amended statement of claim should be granted for the following reasons.
First, and most significantly, although the amendment will cause some delay, I am not satisfied that the delay will be such that the hearing date of 12 October 2020 (over six months away) will necessarily be jeopardised. It is to be accepted that the RMS has responsibility for over 18,000 kilometres of State roads. Contrary to Veolia's assertion, the RMS will need to consider the cost for the whole State, not just the local area which included the dead tree, if it wishes to challenge Veolia's assertion that the cost of taking the relevant precaution would not exceed the financial and other resources reasonably available to the RMS. Despite this, I find it difficult to accept that it would take a year.
The RMS estimates that it will take a year to ascertain the costs of employing arborists to conduct inspections of tree dense areas close to roads by accessing publicly available aerial images. That length of time is suggested due to uncertainty surrounding the current pandemic. These are uncertain times, but I am not satisfied that this is a proper basis to refuse Veolia leave to properly bring its case consistent with its expert evidence. The RMS will need to make inquiries from the RMS employee responsible in each council area as to the number and density and types of trees contained in any road reserve area for which it has responsibility. It will also need to make enquiries concerning the internet resources and whether they include the relevant areas and whether they are updated in a different way throughout New South Wales. Once that is done, quotes will need to be obtained from arborists. It was submitted on behalf of the RMS that the plaintiff has some knowledge of the costs of arborists as the tree in question was examined by the RMS a week after it fell. Despite that, it is to be accepted that the investigations that the RMS suggests it needs to undertake are certainly reasonable.
Second, I am satisfied that there is some explanation for the delay in seeking to amend the statement of claim. It is to be accepted that Ms Howden referred to using the publicly available aerial images in her first report in order to explain her expert evidence as to, inter alia, how long it took the tree to die. Despite this, Mr Stiles, Veolia's solicitor, explains in his affidavit that it was not until after he received the statement of Mr Brunton on 6 May 2019 that he fully appreciated the way in which the RMS purported to fulfil its obligations to remove dangerous trees and overhanging branches that were a danger to the public and the alternate methods they could use instead. He explained that it was not until further questions were asked of Ms Howden and she provided the second report that the significance of the issue crystallised. Although I accept the defendant's submission that not all of what is contained in Ms Howden's second report is in response to Mr Brunton or Mr Castor's report, I do not consider that to be a complete answer to whether there is an explanation for the delay.
As soon as Veolia received Ms Howden's second report it was provided to the RMS, who has now been in possession of it since 17 September 2019. There is no evidence before the court as to what enquiries have been made by the RMS beyond that contained in the defendant's two affidavits before me. It was following the complaint by the RMS about the second report that consent was sought to file an amended statement of claim and it was not until 31 January 2020 that opposition to such a course was communicated to Veolia.
I am not currently satisfied that there will be any wasted costs caused by the amendment. The defendant has indicated that there may well be but is not in a position at this stage to indicate how much and what they might be. That is a matter that can be dealt with by reserving costs in this matter. Nor am I satisfied that any irreparable element of unfair prejudice would be incurred by the RMS. Nor would the grant of this amendment lessen public confidence in the judicial system given the current climate the Court is operating in.
I am satisfied that the amendment is important so Veolia can properly put its case. It has not been adequately explained why the relevant enquiries could not all be completed by the hearing date, beyond the uncertainty of the current climate that the RMS is operating in. For that reason, I am satisfied that any potential prejudice to them can be minimised by making various consequential orders as suggested by the parties.
[10]
Orders
I make the following orders:
1. Leave is granted to the plaintiffs to file the amended statement of claim annexed to the notice of motion filed in this matter.
2. The defendant is to file and serve all lay and expert evidence it has been able to obtain by 30 June 2020 on that date.
3. The matter is listed for further directions on 6 July 2020.
4. Costs of the motion will be reserved.
5. Costs thrown away and any incidental costs will also be reserved.
6. The parties have liberty to apply on three days' notice.
[11]
Amendments
21 August 2020 - minor coversheet correction
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Decision last updated: 21 August 2020