Allen v Green
[2016] WADC 96
•30 JUNE 2016
ALLEN -v- GREEN [2016] WADC 96
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 96 | |
| 30/06/2016 | |||
| Case No: | CIV:2882/2014 | 27 JUNE 2016 | |
| Coram: | DERRICK DCJ | 27/06/16 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| PDF Version |
| Parties: | BRENDAN ROSS ALLEN GARY VERNON GREEN SANDRA JANE GREEN HENSTOCK TECHNOLOGIES PTY LTD |
Catchwords: | Practice and procedure Appeal against decision of registrar striking out paragraphs of statement of claim Alleged breach of duty owed by occupier of premises to lawful entrant |
Legislation: | District Court Rules 2005 (WA) Occupiers' Liability Act 1985 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361 Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254 Phillis v Daly (1988) 15 NSWLR 65 Shire of Manjimup v Cheetham [2010] WASCA 225 Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376 Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder [No 2] [2012] WASCA 212; (2012) 43 WAR 383 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GARY VERNON GREEN
First defendant
SANDRA JANE GREEN
Second defendant
HENSTOCK TECHNOLOGIES PTY LTD
Third defendant
Catchwords:
Practice and procedure - Appeal against decision of registrar striking out paragraphs of statement of claim - Alleged breach of duty owed by occupier of premises to lawful entrant
Legislation:
District Court Rules 2005 (WA)
Occupiers' Liability Act 1985 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff : Mr J R Brooksby
First defendant : Mr R J Carey
Second defendant : Mr R J Carey
Third defendant : No appearance
Solicitors:
Plaintiff : John Benari & Associates
First defendant : SRB Legal
Second defendant : SRB Legal
Third defendant : Not applicable
Case(s) referred to in judgment(s):
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361
Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254
Phillis v Daly (1988) 15 NSWLR 65
Shire of Manjimup v Cheetham [2010] WASCA 225
Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376
Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder [No 2] [2012] WASCA 212; (2012) 43 WAR 383
- DERRICK DCJ: [This judgment was delivered orally and has been edited from the transcript].
Background
1 On 5 September 2014 the plaintiff commenced an action against the first defendant and second defendant (the defendants) claiming damages for personal injury allegedly caused by the defendants' negligence.
2 On 22 January 2016 the plaintiff filed his statement of claim against the defendants. By his statement of claim the plaintiff claimed damages for personal injury allegedly caused by the defendants' negligence and/or breach of duty under s 5 of the Occupiers' Liability Act 1985 (the Act). The statement of claim, so far as is relevant, is in the following terms:
1. The Plaintiff was born on 27 April 1983, and was at all material times a self-employed auto electrician.
2. On 11 September 2011 the Plaintiff attended in the company of others at premises owned and occupied by the First and Second Defendants and known as 56 Glenview Drive, Vasse near Busselton, in the state of Western Australia (the premises).
3. In the early hours of the morning of 11 September 2011, the Plaintiff was present in a shed on the premises and was standing adjacent to an oil heater being a 'Demon' oil burning space heater which was burning on the premises.
4. As the Plaintiff was standing as aforesaid, the heater exploded and discharged burning oil onto the Plaintiff causing him to suffer serious injury (the accident).
5. The accident was caused by the negligence and/or breach of duty under section 5 of the Occupiers Liability Act 1985 (the Act) of the First and Second Defendants.
Particulars of Negligence and/or Breach of Duty
i. Filling the oil heater with waste oil and/or oil contaminated with water contrary to the manufacturer's instructions;
ii. Failing to warn the Plaintiff of the matters referred to in paragraph (i) hereof;
iii. Failing to guard the heater;
iv. Failing to warn the Plaintiff not to stand close to the heater;
v. Failing to inspect the heater;
vi. Failing to clean and/or otherwise service the heater;
vii. In the premises failing to discharge the Plaintiff's common law duty of care and the duty of care owed by the Defendants by virtue of the Act.
3 On 18 February 2016 the defendants filed a chamber summons seeking orders that the plaintiff's statement of claim be struck out pursuant to O 20 r 19(1)(a), r 19(1)(b) and r 19(1)(c) of the Rules of the Supreme Court 1971 (RSC) (the application).
4 On 7 April 2016 the application was heard by a deputy registrar of this court. The deputy registrar, who delivered oral reasons for decision, allowed the application in part and made orders in the following terms:
1. Paragraphs 4 and 5 of the statement of claim be struck out;
2. Within 14 days the plaintiff do file and serve any amended statement of claim; and
3. The plaintiff do pay the defendants' costs of the application in any event.
5 It is common ground between the parties that the deputy registrar allowed the application on the ground that par 4 of the statement of claim amounts to a claim of res ipsa loquitur which is inconsistent with, and cannot stand alongside, the particulars of negligence pleaded in par 5 of the statement of claim.
6 On 14 April 2016 the plaintiff filed a notice of appeal against the deputy registrar's decision.
Nature of the appeal
7 The appeal is brought under r 15(1) of the District Court Rules 2005 (WA) (DCR).
8 An appeal from the decision of a registrar to a judge under r 15(1) of the DCR is a hearing de novo: DCR, r 15(6); Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28. I am therefore to treat the application as though it had not been previously determined. It is not necessary for the plaintiff to establish appellable error on the part of the deputy registrar: Hazart v Rademaker (28); Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13], [14].
The defendants' submissions
9 The defendants seek to uphold the orders made by the deputy registrar. The defendants' arguments may be summarised as follows:
1. Paragraphs 4 and 5 of the statement of claim, taken together, disclose no reasonable cause of action because there is no pleading of the facts as to why the heater exploded, and because there is no specific pleading of the nature and scope of the duty of care said to have been breached: RSC, O 20 r 19(1)(a);
2. The allegations made in pars 4 and 5 of the statement of claim are frivolous (RSC, O 20 r 19(1)(b)) because they do not plead how the heater exploded, do not plead a duty of care other than a bare assertion of liability under s 5 of the Act, and include particulars (namely those pleaded in pars 5(i), 5(iii) and 5(vi) of the statement of claim), that 'are mere speculation'; and
3. The allegations made in pars 4 and 5 may prejudice, embarrass or delay the fair trial of the action (RSC, O 20 r 19(1)(c)) because there is insufficient particularity about the cause of the accident to enable preparation of a defence, to enable the defendants to investigate the alleged causes of the accident, or to enable the defendants to consider what may or may not be admissible evidence.
The elements of the causes of action
10 The elements of the causes of action the subject of the plaintiff's claim are as follows:
1. The defendants owed to the plaintiff a duty of care at common law and/or under s 5(1) of the Act;
2. The defendants breached their duty of care owed to the plaintiff; and
3. The defendants' breach of their duty of care caused the plaintiff to suffer injury and consequential loss and damage.
11 It is against this statement of the elements of the causes of action relied upon by the plaintiff that the sufficiency or otherwise of pars 4 and 5 of the statement of claim must be assessed.
Approach to appeal
12 Before turning to deal with the merits or otherwise of the appeal it is useful, I think, to refer to the statements made by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 in relation to strike out applications made under O 20 r 19. In that case his Honour said [4] - [7]:
It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly, the exchange of written submissions.
Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleading rules that evolved in and derive from a very different case management environment.
13 Although in this court it is not the ordinary course for directions to be made for the pre-trial exchange of non-expert witness statements, Martin CJ's statements are otherwise generally apposite to the present appeal. The appeal must, in my view, be determined with the considerations referred to by Martin CJ kept in mind.
The deputy registrar's decision
14 As I have already pointed out, the deputy registrar allowed the application on the ground that par 4 of the statement of claim amounts to a claim of res ipsa loquitur which is inconsistent with the particulars of negligence pleaded in par 5 of the statement of claim.
15 The maxim res ipsa loquitur ('the thing speaks for itself') refers to the process of reasoning which enables the drawing of an inference of negligence from the mere occurrence of an event. However, such a process of reasoning is only available if:
1. There is an absence of explanation of the occurrence that caused the injury;
2. The occurrence was of a kind that, in the ordinary course of things, does not happen without negligence; and
3. The instrument or agency that caused the injury was under the defendants' control: Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376 [159] - [161], [446] - [449].
16 The principle of res ipsa loquitur has no application once the cause of the occurrence has been established: Swick Nominees v Leroi [162].
17 In my view when par 4 of the statement of claim is read with par 5, it is simply not possible to conclude that par 4 is an allegation that the explosion of the heater is in itself evidence that the defendants were negligent. Paragraph 4 does no more than allege the fact or facts that the heater exploded and discharged burning oil onto the plaintiff causing him to suffer injury. Paragraph 5 then pleads that the cause of the explosion of the heater and the consequential injury suffered by the plaintiff (that is, the accident), was the defendants' negligence and then purports to particularise the defendants' negligent conduct alleged to have caused the accident. In other words, the plaintiff expressly pleads the causes of the accident. The plaintiff does not plead in par 5, or elsewhere, that the explosion is of itself evidence that the defendants were negligent. Indeed, in par 19 of the plaintiff's written submissions filed in support of the appeal the plaintiff expressly disavows relying on the explosion of the heater itself as evidence of negligence. This disavowal was confirmed by the plaintiff's counsel in his oral submissions.
18 For these reasons I respectfully disagree with the deputy registrar's reasons for allowing the application. However, given that the appeal is a hearing de novo my conclusion in this regard does not mean that the appeal should be allowed. I must, as I have already stated, consider the application afresh. I will do this by addressing each of the defendants' above summarised arguments in turn.
The defendants' arguments
No reasonable cause of action
19 As I have already stated, the first of the defendants' arguments is that pars 4 and 5 when read together disclose no reasonable cause of action. The defendants assert that the paragraphs disclose no reasonable cause of action for two reasons. First, because the plaintiff does not plead why the heater exploded. Second, because the plaintiff does not specifically plead the nature and scope of the duty of care said to have been owed by the defendants to the plaintiff and breached by the defendants. With respect to this second reason the defendants make the point that the plaintiff does not plead what the relevant 'danger' is within the meaning of s 5(1) of the Act.
20 I do not accept that the plaintiff does not plead why the heater exploded. The plaintiff's case as to why the heater exploded is pleaded in pars 5(i), 5(v) and 5(vi). In my view it is tolerably clear from these pleaded particulars that the plaintiff's case is that the defendants' negligence caused the accident because the defendants did, or failed to do, one or more of the following things:
1. Filled the oil heater with waste oil and/or oil contaminated with water contrary to the manufacturer's instructions;
2. Failed to inspect the heater; and
3. Failed to clean and/or otherwise service the heater.
21 I note that it is apparent from both the plaintiff's written submissions filed in support of the appeal and the plaintiff's counsel's oral submissions on the hearing of the appeal, that the plaintiff's focus so far as the cause of the accident is concerned is the allegation that the defendants filled the oil heater with waste oil and/or oil contaminated with water contrary to the manufacturer's instructions.
22 During the course of the hearing of the appeal the defendants' counsel submitted, in effect, that even if it is accepted, contrary to the defendants' contention, that the statement of claim does identify alleged causes of the accident, the pleading is still deficient because it identifies more than one cause. I do not think that it is necessary that the plaintiff must restrict himself to identifying and alleging one cause of the accident. It is, in my view, open for the plaintiff to allege, as I consider he does, that the accident was caused by one or more aspects of the defendants' conduct either individually or in combination with each other (although, for reasons that are apparent from what I have already said I envisage that the plaintiff's focus of attention at any trial will be on the allegation of filling the oil heater with waste oil and/or oil contaminated with water).
23 I turn to the second of the defendants' reasons for asserting that pars 4 and 5 do not disclose a reasonable cause of action, namely that neither par 4 nor par 5 expressly pleads the nature and scope of the duty of care that the plaintiff alleges the defendants owed to him.
24 In par 5 of the statement of claim the plaintiff alleges negligence, that is, a breach of a common law duty of care and also a breach of a duty of care owed by virtue of s 5(1) of the Act. However, and as the defendants correctly point out, the plaintiff does not expressly plead the duty of care which the plaintiff alleges was owed to him by the defendants at common law or the duty of care which the plaintiff alleges the defendants owed to him under s 5(1) of the Act.
25 In some cases it may be important to precisely define and plead the alleged duty of care. As Gummow J observed in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361 [22]:
Different classes of care may give rise to different problems in determining the nature or scope of a duty of care. In many cases a duty formulated as being one to take 'reasonable care' may suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with a retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the 'high level of abstraction' spoken of by Glass JA in Shirt v Wyong Shire Council …
26 The present case is, of course, a case involving an alleged breach of a duty of care owed by the occupiers of premises to a lawful entrant onto the premises. It is one of those categories of cases in which the existence of a duty of care is well established. It follows, in my view, that it is sufficiently clear from the allegation of breach of duty pleaded in par 5 of the statement of claim that the duty of care which the plaintiff alleges that the defendants owed to him, whether at common law or under the Act or both, was a duty owed by the defendants to the plaintiff as a lawful entrant on the premises to exercise reasonable care to avoid a foreseeable risk of injury arising out of dangers to the plaintiff due to anything done or omitted to be done on the premises: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 488; Phillis v Daly (1988) 15 NSWLR 65, 76; Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17]; Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [55]; Shire of Manjimup v Cheetham [2010] WASCA 225 [11], [67]. As to the defendants' argument that the pleading is deficient because the relevant 'danger' for the purposes of the duty is not expressly pleaded, it is in my view once again sufficiently clear from reading pars 4 and 5 together that the 'danger … due to … anything done … on the premises' is the use of the heater.
27 For the reasons I have stated, I do not accept the defendants' submission that pars 4 and 5 should be struck out on the basis that they disclose no reasonable cause of action.
28 I note that the parties have (consistently with the terms of par 5(vii) of the statement of claim) proceeded on the appeal on the basis that s 5(1) of the Act creates a duty of care in addition to the common law duty of care, as opposed to merely prescribing the standard of care required to discharge any duty owed at common law. The question whether s 5(1) does create a duty of care in addition to the common law duty of care is, to the best of my knowledge, yet to be finally determined by the Court of Appeal in this State: Department of Housing and Works v Smith [63]; Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder [No 2] [2012] WASCA 212; (2012) 43 WAR 383 [46] - [47]. In any event, the question is not one which bears upon the determination of the present application given that even if it is assumed that s 5(1) does create a duty of care in addition to the common law duty, in the circumstances of this case the nature and scope of the duty at common law and under the Act is the same.
Allegations frivolous
29 I turn to the second of the defendants' arguments, namely that the allegations made in pars 4 and 5 are frivolous.
30 To a large extent the reasons I have given for rejecting the defendants' argument that pars 4 and 5 disclose no reasonable cause of action also deal with this argument of the defendants. The only additional point I need to make in this context relates to the defendants' contention that the particulars pleaded in pars 5(i), (iii) and (vi) are mere speculation.
31 In my view, the short answer to this contention is that whether these alleged particulars are mere speculation will be a matter for the trier of fact to determine. If the plaintiff cannot prove on the evidence the allegations made in these paragraphs then it will bear the consequences of such a failure. The fact that the defendants may currently view the allegations as mere speculation does not provide a basis for concluding that the allegations are frivolous.
Allegations may prejudice, embarrass or delay fair trial of the action
32 I turn to the third of the defendants' arguments, namely that the allegations made in par 4 and 5 may prejudice, embarrass or delay the fair trial of the action.
33 For the reasons that I have already stated in dealing with the defendants' argument that pars 4 and 5 do not disclose a reasonable cause of action, I do not consider that these paragraphs are in their entirety prejudicial or embarrassing. There is, however, in my view a difficulty with part of par 5 as presently pleaded. The difficulty is that at least some of the alleged particulars of 'negligence and/or breach of duty' cannot, in my view, be seen as particulars of the negligence and/or breach of the duty of care alleged in par 5. As I have already noted, the allegation in par 5 is that the accident (defined in par 4 to be the explosion of the heater and discharge of burning oil onto the plaintiff causing him injury), was caused by the defendants' negligence and/or breach of the duty of care under s 5 of the Act. However, the plaintiff alleges as particulars of how the accident was caused by the defendants' negligence and/or breach of duty of care under s 5 to include:
1. A failure to warn the plaintiff that the oil heater had been filled with waste oil and/or oil contaminated with water contrary to the manufacturer's instructions: par 5(ii);
2. A failure to guard the heater (whatever this means): par 5(iii); and
3. A failure to warn the plaintiff not to stand close to the heater: par 5(iv).
34 On any view of the matter such alleged conduct cannot constitute a cause of the accident which as defined includes the explosion of the heater. Rather, these particulars would appear to suggest an allegation by the plaintiff that the breach of the duty of care lay not only in the defendants' conduct in causing the explosion, but also in a failure by the defendants to take steps to ensure that the plaintiff was not exposed to the risk of injury by the heater exploding and discharging burning oil onto him. Further, such an allegation assumes some degree of knowledge on the part of the defendants of danger associated with the use of the heater which is also not pleaded. Thus in my view when one has regard to the terms of the alleged breach pleaded in par 5 of the statement of claim the particulars alleged in pars 5(ii), 5(iii) and 5(iv) should be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action.
Conclusion
35 For the reasons that I have stated I would allow the appeal against the orders striking out pars 4 and 5 of the statement of claim in their entirety, but dismiss the appeal to the extent that the deputy registrar's orders on the application related to the particulars pleaded in pars 5(ii), 5(iii) and 5 (iv) of the statement of claim.
36 I think, consistently with the orders made by the deputy registrar, that it is appropriate to grant to the plaintiff leave to amend the statement of claim to deal with my ruling in relation to the particulars pleaded in pars 5(ii), 5(iii) and 5(iv).
37 I will hear the parties as to the precise terms of the orders that I should make to give effect to my decision and in relation to the issue of costs.
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