May 28, 2016

Queensland’s Transport Department withheld highway skid resistance and traffic crash records for a section of the Bruce Highway on which it failed to conduct resistance testing for the five years prior to a January 2009 single vehicle accident, and then argued it would be “prejudiced” if a court were to allow the injured driver to include allegations against it based on the concealed information.

Heavy rain was falling as Gavin Read – motoring towards Innisfail just to the south – hit water ponded in a dip on the highway and aquaplaned at high speed out of control into a guardrail of the Josephine Creek bridge.

The cover-up – until after court proceedings were already underway and the three-year limitation period had expired – is a breach of statutory rules that apply to the conduct of injury compensation claims under the Personal Injuries Proceedings Act.

Eventual disclosure revealed skid resistance data and details of numerous other accidents within a 370 m stretch of the dip.

Engineering advice commissioned by Read’s solicitors after Transport finally fessed up, asserts the crash cluster was indicative of the need for investigation and “possibly intervention” by the road authority.

Road safety engineer Nigel McDonald also concluded that the new data indicated problems associated with the 2004 re-sealing of the section of road.

Having based his claim simply upon the existence of the “unnecessary and hazardous” dip and “inadequate design & construction”, Read sought to amend his Statement of Claim to include the newly revealed deficiencies.

The new elements of negligence – insufficient friction coefficient in the highway surface; failure to investigate the cluster of prior accidents; and “flushing” & “bleeding” at the point of the dip – were addressed by Judge Clive Wall in the District Court at Brisbane.

Judge Wall considered each to be a new cause of action because he was not satisfied they were merely “additional facts or an expanded focus of substantially the same story”.

He refused Read’s application to amend the Statement of Claim and decided to treat the issue as one for an extension of the limitation period based on becoming aware of material & decisive facts not previously within the plaintiff’s means of knowledge.

Accepting that the only way Read could have discovered the information was from Transport itself, he concluded that the blame for uncovering the “new” facts could not be sheeted home to him.

He allowed the extension of time to plead the new allegations except in respect of “flushing” & “bleeding”. This feature, was – in the judge’s view – already known to Read as it had been referred to equally extensively in an earlier opinion by another road engineer Joe Ruller, whose report predated the expiration of the limitation period.

“The lack of reliance on flushing in the original Statement of Claim evidences a decision by the plaintiff in consultation with his solicitors not to pursue that case.”

The real clanger then came when Transport submitted that it would be prejudiced – by being “deprived of the opportunity to test the road surface before it was resurfaced again in August 2013” to determine its actual skid resistance – if new causes of action were introduced, notwithstanding that it had secreted the information from the outset.

Not so, ruled the court.

The claim will proceed on the expanded basis except (barring appeal) in relation to the design and construction issues of “flushing” & “bleeding”.

Read v State of Queensland [2016] QDC 107 Wall QC DCJ 16/05/2016

Categories: Personal Injury , Litigation & Law Practice , Civil procedure

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