This was an Application by His Majesty the King (“HMK”) to strike the Plaintiff’s Claim under Rule 3.68(2)(b) or, alternatively, for summary dismissal pursuant to Rule 7.3, on the basis that section 42(7) of the Highways Development Protection Act, SA 2004, c H-8.5 (“HDPA”), barred actions against the Crown. The Plaintiff’s action arose from a 2014 motorcycle accident in which he was rendered quadriplegic after striking a chevron sign that had fallen into a ditch and was not visible.

The Court dismissed the Application. Under Rule 3.68, the Court found that it was not plain and obvious that the Plaintiff’s Claim disclosed no reasonable cause of action. The pleadings alleged that HMK, having installed the chevron sign, failed to maintain it in a reasonable state of repair. The Court held that s 42(7)(a) of the HDPA does not insulate the Crown from liability where the issue is not the absence or presence of signage but rather its hazardous state of disrepair. Similarly, the defence under s 42(7)(b) was rejected because the sign had not been intentionally placed in the ditch and HMK acknowledged its ongoing maintenance duty under s 42(1)-(2).

Under Rule 7.3, the Court concluded that the legal issues were not sufficiently settled to permit summary dismissal. The evidentiary record raised live issues as to whether HMK met its maintenance obligations. The Court held the Application was not framed to address whether HMK discharged its duty to keep the sign in reasonable repair, and it would be unfair to decide that issue summarily on the narrow statutory ground advanced.

The Application was dismissed, and costs were awarded to the Plaintiff.