Cheong v Wong and Ors [1999] NSWSC 1209 (13 December 1999)

Last Updated: 13 December 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Cheong v Wong & Ors [1999] NSWSC 1209

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20295/1995

HEARING DATE{S): 30 November 1999

JUDGMENT DATE: 13/12/1999

PARTIES:

Beverley Bikwan Cheong by her Tutor The

Protective Commissioner of NSW (Plaintiff)

King Leung Wong (First Defendant/First

Cross Claimant to First Cross Claim,

Second Cross Claimant to Second cross Claim

and Third Cross Defendant to Third Cross

Claim)

Roads & Traffic Authority of New South Wales

(Second Defendant/Third Cross Claimant to

Third Cross Claim, Fourth Cross Claimant

to Fourth Cross Claim, Fifth Cross Claimant

to Fifth Cross Claim and Sixth Cross Claimant

to Sixth Cross Claim)

Pabesu Pty Limited (Third Defendant/Second

Cross Defendant to Second Cross Claim and

Fourth Cross defendant to Fourth Cross Claim)

Avedis Qasabian (Fourth Defendant/Fifth Cross

Defendant to Fifth Cross Claim)

David Worley (Fifth Defendant/Sixth Cross

Defendant to Sixth Cross Claim)

Vulcap Tyre Service Pty Limited (Sixth Defendant)

Jax Tyres Pty Ltd (First Cross Defendant to

First Cross Claim)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr A S Morrison SC/Mr R Tonner (Plaintiff)

N/A (First Defendant)

Mr I G Harrison SC/Ms J S Gleeson

(Second Defendant)

N/A (Third, Fourth & Fifth Defendants)

N/A (Sixth Defendant)

Mr A M Gruzman (First Cross Defendant to First Cross Claim)

SOLICITORS:

McBride Harle & Martin (Plaintiff)

Henry Davis York (First Defendant)

I V Knight - Crown Solicitor (Second

Defendant)

Sparke Helmore (Third, Fourth & Fifth Defendants)

N/A (Sixth Defendant)

Keddies (First Cross Defendant to First Cross

Claim)

CATCHWORDS:

Summary dismissal

tortious liability of public authority

negligence claims

delay.

ACTS CITED:

Traffic Act 1909.

DECISION:

See paragraph 25.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

MASTER MALPASS

MONDAY 13 DECEMBER 1999

20295/1995 BEVERLEY BIKWAN CHEONG by her Tutor THE PROTECTIVE COMMISSIONER OF NSW v KING LEUNG WONG & ORS

JUDGMENT

1 The plaintiff suffered injury in a motor vehicle accident that took place on 6 April 1994. She has brought these proceedings to recover damages. There are now six defendants. A number of Cross-claims have been brought.

2 The plaintiff was a passenger in a vehicle being driven by the first defendant. Prior to the accident, the vehicle's rear nearside tyre had begun to separate and detach from the tyre carcass. The first defendant lost control of the vehicle and it veered onto the incorrect side of the road colliding with a vehicle coming in the opposite direction.

3 The second defendant is the Roads & Traffic Authority Of New South Wales (RTA). The third defendant was the owner of a Mobil Service Station (known as "Mobil Westmead"). It was an authorised inspection station. The fourth defendant was its nominee. The fifth defendant was an employee of the third defendant. The sixth defendant is the manufacturer of the tyre.

4 On 16 March 1994, the vehicle was taken to Mobil Westmead to obtain a safety inspection report. The inspection was carried out by the fifth defendant (an authorised examiner). A safety inspection report was issued.

5 The second defendant is sued in negligence. There are allegations of breach of duty which relate to the adequacy of its system in relation to tyre inspections. These are referred to as allegations of direct negligence. Also, it is alleged that the second defendant is liable for the negligence of the third, fourth and fifth defendants, each of whom are said to be the agent of the RTA. The allegations are pleaded in an Amended Statement of Claim.

6 The proceedings were commenced in 1995. Originally, the first defendant was the only defendant in the proceedings. The second defendant became a party in early 1997. On 1 June 1999, it filed the Notice of Motion now before the court.

7 The Notice of Motion claims relief in the alternative. The first alternative is the summary dismissal of the claim brought against it. The second alternative is the separate determination of certain questions.

8 The application was heard on 30 November 1999. The relevant evidence comprised two affidavits. The RTA relied on an affidavit sworn by Mr Randall. It deposed to inter alia the authorised inspection scheme, the inspection process and RTA audits. The plaintiff relied on an affidavit sworn by Mr Martin. It annexed documentation (including the Inspection Report, Traffic Collision Report and reports from an expert). The expert material expresses the opinion that a competent examiner, properly inspecting the tyre, should have been aware that there was a defect present within the tyre carcass and that the tyre carcass was unsafe for the purpose of registration of the vehicle.

9 The court has a discretion to grant summary relief. It is exercised having regard to the relevant circumstances of the particular case and so that justice is best served between the parties. The applicant bears the onus.

10 The authorities have effectively imposed restriction on the granting of summary relief. The authorities say that it should be given only in what might be described as clear cases (see inter alia Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598).

11 The authorities have also seen a reluctance to summarily terminate cases in which negligence is alleged. The tort of negligence is not static. Generally speaking, the courts have been loath to determine questions as to the existence of a duty of care otherwise than at a trial. At a trial, the court has the advantage of considering the alleged duty of care in the context of all of the relevant evidence.

12 The area of tort liability of public authorities has been seen as a complex one. The relevant law is far from settled.

13 I now turn to the arguments advanced on behalf of the parties. Counsel for both the RTA and the plaintiff have prepared detailed written submissions. The written material was supplemented by oral argument. There were appearances on behalf of the first, third, fourth and fifth defendants and the first cross-defendant, who each adopted what had been said on behalf of the plaintiff.

14 Broadly speaking, the RTA advances two general propositions. Firstly, it says that no duty of care is owed to the plaintiff. Secondly, it is said that it has no vicarious liability for the acts of the third, fourth and fifth defendants.

15 The court was referred to the Traffic Act 1909 (the Act). Part 2 of the Act enables the making of regulations (including regulations to provide for the purposes of determining whether or not motor vehicles are suitable for safe use or comply with the requirements of the Act). The regulations made thereunder set up the scheme (it is referred to as the AIS scheme) which for relevant purposes has been administered by the RTA as the regulatory body. The regulations authorise the issue by the RTA of rules to be observed by inter alia inspectors. Rules have been issued. The relevant rules include 1.02 and 104.02. Rule 1.02 sets out the functions of the RTA. Rule 104.02 requires the examiner to visually inspect each tyre carcass and to reject it if it fails to satisfy specified criteria.

16 The RTA takes the stance that it has the functions of a licensing authority with power to administer a scheme in the public interest for the inspection and registration of motor vehicles. It contends that these functions are performed by empowering suitably qualified persons to conduct inspections, by issuing rules and by cancelling or suspending authorities granted. It contends that its functions go no further. In particular, it is said that it has no statutory responsibility for the carrying out of the work which is said in this case to have been performed negligently. It disputes that there is any basis for an agency relationship with any of the third, fourth or fifth defendants.

17 The RTA has referred the court to a number of authorities (including Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 and Sasin v Commonwealth (1984) 52 ALR 299). It looks to the distinction that has been drawn between planning and operational decisions. It is said that the RTA was engaged in matters of planning and that the plaintiff's claim against it is not justiciable.

18 The authorities support the view that no duty of care exists on a public authority in relation to decisions dictated by finance, economics, social or political constraints. However, it has been said that it may be otherwise when the courts are called upon to apply a standard of care to that which is the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.

19 The plaintiff has also referred the court to a number of authorities (including RTA v Scroop (1998) 28 MVR 233 and Crimmins v Stevedoring Industry Finance Committee (1999) HCA 59). The plaintiff says that there is an arguable case that a non-delegable common law duty of care was owed by the RTA in relation to the exercise of its functions.

20 In my view, this application can be determined without the need to embark on further analysis of the relevant facts and relevant law. It seems to me, in the circumstances of this case, that the RTA has fallen short of satisfying the court that the plaintiff does not have an arguable case. In my view, it is not one of those clear cases required by the authorities. There are questions which can only be resolved at a trial.

21 Accordingly, in this case, I am not satisfied that the onus has been discharged. It seems to me, that justice is best served if the claim proceeds to trial.

22 I may add that there has been delay in the bringing of the application. Generally speaking, applications of this nature should be promptly made. The RTA has taken a number of steps in the proceedings (including the filing of a Defence and the bringing of Cross-claims against the third, fourth and fifth defendants) prior to the making of the application.

23 This was not a matter agitated by the parties. Accordingly, I have not taken it into account. However, had it been argued, it seems to me that it would have been a relevant circumstance of some weight in the circumstances of this particular case.

24 The alternative relief relates to questions concerning the RTA. It may be that these questions could be principal matters for determination at the trial and take up much of the hearing time. At first blush, the view could be taken that, there would be a lack of utility in having them separately determined. However the alternative was not argued and the court was asked to put it aside for present purposes.

25 I refuse the application for summary dismissal. The second defendant is to pay the costs of the application. The balance of the Notice of Motion is stood over generally.

**********

LAST UPDATED: 13/12/1999