Apex Holiday Centre (Inc) v Lynn
[2004] WASCA 35
•12 MARCH 2004
APEX HOLIDAY CENTRE (INC) -v- LYNN [2004] WASCA 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 35 | |
| Case No: | FUL:127/2003 | 17 FEBRUARY 2004 | |
| Coram: | MASTER NEWNES | 12/03/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Amendment allowed | ||
| B | |||
| PDF Version |
| Parties: | APEX HOLIDAY CENTRE (INC) DAWN ROSEANNE LYNN |
Catchwords: | Practice and procedure Application to amend grounds of appeal to raise new ground of appeal Relevant principles Relevance of merits of appeal Turns on own facts |
Legislation: | Occupiers' Liability Act 1985 (WA) |
Case References: | Burns v Griggs [1967] VR 871 Far Eastern Shipping Co Ltd v Abramkin [1999] VSCA 107 Jackamarra v Krakouer (1998) 195 CLR 596. , Jones v Bartlett (2000) 205 CLR 166 Ketteman v Hansel Properties Ltd [1987] AC 189 Mitchelson v Mitchelson (1979) 24 ALR 522 R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant (Defendant)
AND
DAWN ROSEANNE LYNN
Respondent (Plaintiff)
Catchwords:
Practice and procedure - Application to amend grounds of appeal to raise new ground of appeal - Relevant principles - Relevance of merits of appeal - Turns on own facts
Legislation:
Occupiers' Liability Act 1985 (WA)
Result:
Amendment allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant (Defendant) : Ms E C McLennan
Respondent (Plaintiff) : Mr R J L McCormack
Solicitors:
Appellant (Defendant) : Jarman McKenna
Respondent (Plaintiff) : Bradley & Bayly
Case(s) referred to in judgment(s):
Burns v Griggs [1967] VR 871
Far Eastern Shipping Co Ltd v Abramkin [1999] VSCA 107
Jackamarra v Krakouer (1998) 195 CLR 596
Jones v Bartlett (2000) 205 CLR 166
Ketteman v Hansel Properties Ltd [1987] AC 189
Mitchelson v Mitchelson (1979) 24 ALR 522
R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Case(s) also cited:
Nil
(Page 3)
1 MASTER NEWNES: This is an application by the appellant to amend its notice of appeal to add to the existing appeal against the learned trial Judge's decision on the issue of contributory negligence, an appeal against the finding on liability.
2 The appeal arises out of a decision of Commissioner Giles delivered in the District Court on 8 August 2003. The learned Commissioner found that the respondent had suffered personal injury by reason of the negligence of the appellant and awarded the respondent an amount of $121,000. The learned Commissioner assessed the respondent's damages at $172,946, but reduced that amount by 30 per cent for the respondent's contributory negligence.
3 In the current notice of appeal, the appellant relies upon the following grounds of appeal:
"(1) The learned trial Judge was wrong in law and in fact in not making a deduction for contributory negligence greater than 30%, given her findings that:
(a) the Respondent did not take as much care for her safety as she should have;
(b) the Respondent had been at the camp before and knew that the unit 12 was old and basic;
(c) the Respondent knew of the internal light but had decided not to use the internal light because of her concern not to wake others;
(d) the Respondent had a legal duty to take care of her own safety and not to prefer the comfort of others over that legal duty;
(e) the Respondent had on three occasions some hours before the accident had the lack of a landing and the gap between the door and the first step brought to her attention;
(f) the Respondent had already formed the view that the steps constituted a danger;
(g) the steps were poorly lit; and
(Page 4)
- (h) the Respondent stepped 'out into the darkness' (par 122).
- 2. The learned trial Judge was wrong in law and in fact in awarding the Respondent an amount of $100,000 for pain and suffering given that it was outside the scope of a reasonable award."
4 The appellant seeks orders that:
"1. The award of damages made by her Honour Commissioner Giles be substituted with a new award of damages.
2. The Respondent pay the Appellant's costs of the appeal to be taxed."
5 By the proposed amendment the appellant seeks, in the alternative, orders that:
"1. The appeal be allowed
2. The finding of Her Honour Commissioner Giles that the plaintiff's accident was caused by the breach of the defendant's duty of care under the Occupier's Liability Act be set aside and in lieu thereof it be ordered that the plaintiff's claim be dismissed with costs;
3. The Respondent pay the Appellant's costs of the appeal to be taxed."
- and seeks to amend the grounds of appeal to add the following grounds:
"1. The learned trial Judge erred in law in finding that there was a reasonably practicable method of obviating the risk of the Respondent (Plaintiff) falling down the steps by providing a landing or installing a light when:
(a) there was no evidence led in relation to the cost and reasonableness of providing a landing; and
(b) there was no evidence led in relation to the cost of installing a light which the learned trial Judge assumed was a small expense.
(Page 5)
- 2. The learned trial Judge erred in law in focussing on the landing and the light above the door without reference to the state of the whole premises and the multitude of potential risks which may have posed a foreseeable risk of injury.
3. The learned trial Judge erred in law in finding, in the absence of any evidence, that the Respondent (Plaintiff) would have used an external light to illuminate the steps if a light switch was present."
6 In their respective written outlines of submissions, it was common ground between the parties that in exercising its discretion the Court should have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequence to the parties of the grant or refusal of leave. In oral argument, however, counsel for the appellant contended that the proper considerations on this application were analogous to those relevant on an application for an extension of time to take a step in an extant appeal, referred to in Jackamarra v Krakouer (1998) 195 CLR 596, namely the length of the delay in making the application, the reasons for the delay and whether the respondent or the administration of the Court would be prejudiced if the amendment were allowed. It was agreed by the parties that the merits of the proposed amendments were a relevant factor, although they differed as to the extent to which the merits should be investigated at this stage.
7 The respondent opposed the application on three principal grounds; namely, delay, prejudice to the respondent and a lack of merit of the proposed new grounds of appeal.
8 The appeal arises out of an action for personal injury commenced by the respondent in 2001. In the action, she claimed damages for injuries suffered as a result of falling down some steps at a unit she was occupying at the Apex Holiday Centre at Point Peron. The accident occurred in the early hours of 23 April 2000. The Centre was owned and operated by the appellant. The respondent claimed that the appellant was negligent at common law and pursuant to the Occupiers' Liability Act 1985 (WA).
9 The trial took place from 25 November to 27 November 2002. The respondent's case was that the appellant was negligent in failing properly to illuminate the steps leading to the door of the unit ("hut 12") and/or in failing to provide for a proper landing at the base of the door. The respondent denied that it was negligent and said that the accident was
(Page 6)
- caused entirely by the respondent's own negligence. The respondent said, in the alternative, that if it was negligent, then a deduction of up to 90 per cent should be made for the respondent's contributory negligence.
10 In the event, in a judgment delivered on 8 August 2003 the learned Commissioner found that the applicant was negligent in failing to provide adequate lighting over the steps and a landing on the steps. The learned Commissioner also found, however, that the respondent's own negligence had contributed to the accident and that the respondent's damages should be reduced by 30 per cent for her contributory negligence.
11 The appellant's notice of appeal was filed on 26 August 2003 and served on the following day. A notice of cross-appeal was filed and served on behalf of the respondent on 11 September 2003. The respondent seeks to have the learned Commissioner's finding that the respondent was contributorily negligent set aside, or, alternatively, to have the assessment of 30 per cent for contributory negligence reduced.
12 Shortly after he received the appellant's notice of appeal the respondent's solicitor, Mr Bradley, informed the respondent of the appeal and the fact that there was no appeal on liability. The respondent says, in an affidavit sworn on 21 November 2003, that she was "comforted in the fact that in the end result I would at least be partially successful in the action because even if the appeal was allowed … the respondent … would remain liable to pay damages to me". The respondent says that she was "greatly comforted and felt the worry of litigation begin to lift".
13 In the course of a telephone conversation on 27 August 2003, following receipt of the appellant's notice of appeal, Mr Bradley commented to the appellant's solicitor, Mr Jarman, that the notice of appeal did not seek to challenge the finding of liability. He says Mr Jarman confirmed that. Mr Bradley then invited Mr Jarman to enter into negotiations with a view to reaching agreement on a part-payment towards satisfaction of the judgment sum so as to avoid a situation where the respondent applied to enforce the judgment and the appellant then applied for a stay. Mr Bradley says that he suggested that the parties attempt to reach agreement on an "undisputed amount", after allowing for "possible adjustments on appeal to the quantum of damages …, the apportionment for contributory negligence and the adjustment of the costs order in the District Court".
14 Mr Bradley says that following some further discussions it was agreed that the appellant would make a payment in the sum of $55,000 in
(Page 7)
- part satisfaction of the judgment sum. That sum was paid on 12 September 2003.
15 The respondent instructed her solicitors to apply the part-payment of $55,000 to their fees and disbursements. The respondent says that she would not have sought a part-payment or authorised the payment of her legal costs and disbursements had she believed that liability would be in issue on the appeal. She does not say why she would not have done so.
16 On 20 October 2003, the respondent's solicitors wrote to the appellant's solicitors informing them that the respondent was proposing to amend the notice of cross-appeal. By the proposed amendment the respondent sought to set aside the learned Commissioner's finding that the respondent's consumption of alcohol had contributed to the accident.
17 According to an affidavit of Mr Perry, a solicitor employed by the appellant's solicitors, on receipt of that letter he asked a partner of the firm, Mr Jarman, who had appeared as counsel for the appellant at trial, to review both the appellant's notice of appeal and the respondent's notice of cross-appeal, and the proposed amendments to the latter. Mr Perry says that Mr Jarman subsequently advised him to amend the appellant's notice of appeal in the terms which are now contained in the proposed amended notice of appeal.
18 On 24 October 2003, the appellant's solicitors wrote to the respondent's solicitors informing them that the appellant proposed to apply to make that amendment. The respondent's solicitors telephoned the appellant's solicitors on 27 October 2003 to say that the amendment would be opposed. The following day, at the appointment to settle the appeal book index, the respondent's solicitors said that they would not be applying to amend the notice of cross-appeal.
19 On 30 October 2003, the appellant's solicitors filed the present application to amend the notice of appeal.
20 It was submitted on behalf of the respondent that the period of some two months between the service of the notice of appeal and notice of the proposed amendment was a substantial period of delay for which there was no adequate explanation. Although the appellant said that the proposed amendment had come about as a result of Mr Jarman reviewing the notice of appeal in October in light of the foreshadowed amendment to the cross-appeal, the original notice of appeal had been drawn by Mr Jarman, who had also been counsel at the trial. It was not a case of new counsel coming into the case and applying a fresh mind to the matter.
(Page 8)
- There was no reason why the new grounds could not have been included in the original notice of appeal.
21 It was also submitted that there would be real prejudice to the respondent if the amendment were allowed. In the absence of an appeal against liability, the respondent had conducted her affairs on the basis that the judgment on liability was not challenged. On that basis, the respondent had agreed to receive a part-payment of the damages and had authorised her solicitors to apply it to their costs and disbursements. She had also deposed to the stress and worry that had been attendant on the litigation and the relief she had felt on learning that liability would not be in issue on the appeal. All that would be undone if the amendment were allowed.
22 The appellant submitted that the respondent had not, in fact, altered her position in any material respect. It did not appear that the respondent would suffer any real prejudice if the amendment were allowed. The respondent had agreed to accept a part-payment of $55,000 and authorised her solicitors to apply it to their costs and disbursements, but had not said, and it was not apparent, why she would have refused to do so if she had known that liability would be in issue. If the appeal on liability were successful, the respondent would be liable to repay the money, but there is no evidence that that would cause any real difficulty. Mr Bradley had said in his affidavit that whilst his firm did not act for the respondent on a "no win/no fee" basis, the firm would have waived its claim for legal costs (but not disbursements) if the respondent had been unsuccessful on liability. That had been indicated to the respondent. Mr Bradley had said he believed the respondent did not have the means to pay such costs unless her action was at least partially successful. It was not suggested that the solicitors would now depart from their original decision not to charge the respondent if the action were to be determined against her on liability. It was also not suggested that the respondent's solicitors have so changed their position as to be disadvantaged in having to repay the money.
23 In my view, there is some force in the appellant's submission. It is not apparent that the respondent will be in any worse position if the amendment were allowed than she would have been in if it had been included in the original notice of appeal. If the appeal on liability were successful the part-payment would have to be repaid. The clear inference from the affidavits is that in that event her solicitors would repay the money. It was not suggested otherwise. The respondent would then be liable for the disbursements incurred by her solicitors, a liability from
(Page 9)
- which she had earlier thought she was relieved. There is, however, no evidence as to the amount of those disbursements or her capacity, or incapacity, to meet them, and there is no suggestion that the respondent's capacity in that respect has changed since the notice of appeal was served.
24 I accept it is a relevant consideration that the respondent will now be faced with the prospect of losing the action entirely, as opposed to the prospect of having the damages reduced. In that connection, it is apposite to refer to what was said, albeit in relation to the amendment of pleadings at trial, by Lord Griffith in Ketteman v Hansel Properties Ltd [1987] AC 189, at 220:
"Whether an amendment should be granted is a matter for the discretion of the trial Judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of his discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposed on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other."
25 The force of that consideration is, however, somewhat abated in this case by the fact that it appears that on the contributory negligence issue on appeal, as at trial, the plaintiff will contend that the respondent's contributory negligence should be found to be up to 90 per cent. Although, if the amendment were allowed and liability were in issue, the risk to the respondent on the appeal would be greater than it is now, the risk is already substantial. I accept, as submitted by counsel for the respondent, that in practice a finding of contributory negligence in the order of 90 per cent is unlikely, but the fact remains that on the appeal the prospect of a substantial reduction in the damages is already live.
26 The respondent also contended that the amendment should not be allowed because the proposed grounds had no reasonable prospect of success.
27 Although both parties agreed that the merits were a relevant consideration, they differed as the extent to which it was appropriate for the Court to consider the merits at this stage. The appellant argued that
(Page 10)
- the merits were relevant only to the extent that the application should be refused if the proposed appeal was plainly without merit. The respondent argued that the appellant had to satisfy the Court that the proposed grounds had some prospects of success. Counsel for the respondent argued that, where, as here, an appellant sought to raise an entirely new and distinct ground of appeal, the proper approach was to treat it as an extension of time in which to lodge an appeal, rather than an amendment to the existing grounds of appeal.
28 In Jackamarra v Krakouer (supra), the question was as to the principles to be applied in relation to an extension of time in which to enter an appeal for hearing. The Court also considered, however, what should be the test for an extension of time for lodging an appeal against a judgment determining the substantive rights of the parties. Brennan CJ and McHugh J said (at 521) that it is understandable that, where the applicant's right of appeal has gone, Courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. Where, however, the application concerns an extension of time for taking a step in prosecuting an appeal, the merits are not a relevant consideration unless the Court is satisfied that the appeal is so devoid of merit that it would be futile to extend time.
29 Nevertheless, even on an application for an extension of time in which to lodge an appeal the court does not go into much detail on the merits because it has only limited materials and argument, and unless applications to extend the time within which to appeal are to turn into full dress rehearsals for the appeal, the merits can only be assessed in a fairly rough and ready way: Jackamarra v Krakouer (supra) per Brennan CJ and McHugh J at 521 - 522; Far Eastern Shipping Co Ltd v Abramkin [1999] VSCA 107; R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091.
30 There is some authority which tends to support the contention advanced by the respondent that the present application should be treated in the same way as an application for leave to appeal out of time: Mitchelson v Mitchelson (1979) 24 ALR 522, Burns v Griggs [1967] VR 871, but I do not think it is necessary for the purposes of determining this application to reach a concluded view as to which of the approaches urged upon me is the correct one.
31 In the present case neither of the parties put before me the transcript of evidence at the trial, and there was little reference to the evidence. The material before me in relation to the merits was therefore limited largely
(Page 11)
- to the proposed amended notice of appeal and the learned Commissioner's reasons for judgment. Doing the best I can with that material, I am satisfied that the proposed grounds of appeal do have some prospects of success.
32 The proposed grounds of appeal are broadly in two parts. Grounds 1 and 3 relate to findings which the appellant says were not open to the learned Commissioner in the absence of evidence on the issues concerned, and there was no such evidence. Ground 2 is a contention that the learned Commissioner fell into error by focussing simply on the landing and the illumination of the steps of hut 12, without having regard to the overall premises.
33 In relation to ground 2, the appellant relies on what was said by Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166, at 174, where his Honour drew attention to the danger of focussing on the cost of rectifying the particular problem which caused the accident, in circumstances where if the state of the premises had been considered earlier, they would have been considered as a whole, not just in relation to that specific site, so that consideration of any rectification which would have overcome the specific defect has to be considered in that light. I understand the appellant to say that, in this case, the learned Commissioner erred in focussing on the failure of the appellant to install a landing and a light, or at least one or the other, at hut 12, and did not have sufficient regard to the fact that this was only one of a number of similar huts in a holiday camp run by a voluntary organisation and described by her Honour as designed to provide "very basic" and "extremely inexpensive holiday accommodation by the sea for all, regardless of their resources". It will be contended that in focussing only on hut 12, her Honour failed to take into consideration what would have been required by way of any undertaking to upgrade the Centre generally to overcome the specific deficiencies at, among others, hut 12.
34 Ground 1 relates to her Honour's finding that the risk to the respondent could reasonably and practicably have been avoided by installing a light or landing at hut 12. The appellant says that that finding was not open to her Honour, as there was no evidence as to the cost or reasonableness of doing so. Counsel for the respondent did not contend that there was, in fact, evidence of the cost, but argued that her Honour was entitled to apply common sense to the cost of the lighting and that there was evidence from an architect which was consistent with the installation of a landing being a relatively minor repair. It is, however, the case, for instance, that her Honour, having recognised that the defendant
(Page 12)
- was a voluntary organisation which relied principally on unpaid volunteers, concluded [at par 110] that even taking that into account, "the cost of installing a light globe would have been minimal". In fact, as the respondent's counsel acknowledged during the course of this hearing, there was no appropriately located light fitting, so what was required was not just a light globe but also the installation of wiring and a light fitting. The appellant also says that the reasonableness of its conduct must be viewed in the light of the cost of doing that work, not just for hut 12, but for all of the huts in the Centre.
35 Ground 3 relates to her Honour's finding that the respondent would have used an external light to illuminate the stairs if one had been present. Once again, the appellant says that that finding was not open to her Honour as there was no evidence to support it. In that connection, her Honour found as a fact that the steps had dull illumination from nearby lighting, that the respondent had negotiated the stairs on several occasions earlier in the day and that she had not turned on an interior light to assist her in negotiating them on the occasion on which she fell because she did not want to disturb others sleeping in the hut. In the learned Commissioner's reasons for judgment she does not refer to the grounds upon which she reached the view that, had there been a light on the outside of the doorway, the respondent would have turned it on.
36 As I have said, on the limited material before me, I consider that the proposed grounds of appeal have some prospects of success. It is not relevant for present purposes to attempt to make any more specific assessment of the appellant's prospects of success and, in any event, it would not be possible to do so on the material before me.
37 On balance, I am satisfied that it is in the interests of justice that the applicant be given leave to amend the notice of appeal as proposed.
38 While there has been a delay of some two months in advancing the new grounds of appeal, in the circumstances of this case the delay is not such as, in my view, should cause the application to be refused. The amendment was first raised at a time when the respondent was herself proposing to amend her notice of cross appeal, albeit the respondent's proposed amendment was subsequently abandoned. The appeal has not yet been entered for hearing and it will therefore be some time before it is heard. It was not suggested that the effect of the amendment, if allowed, would be to cause any significant delay in the hearing of the appeal.
(Page 13)
39 It is the case that the effect of the amendment would be to put the respondent at risk of an adverse finding on liability and not simply, as at present, as to the amount of the damages to which she is entitled. I accept that the degree of comfort the respondent felt that she would at least retain some part of the damages would now be disturbed. That is a relevant consideration. It is the case, however, that the extant appeal, if entirely successful, would have deprived the respondent of the bulk of the damages awarded to her, so the risk to her position on the appeal was already substantial. It was also conceivable that if on the appeal the assessment of contributory negligence was substantially increased the costs order in the respondent's favour in the District Court may also have been varied.
40 There is no evidence that the respondent has changed her position in any material way on the basis that liability would not be put in issue. The part-payment made to her has been paid to her solicitors and, with her authority, applied to their fees and disbursements. If the appeal on liability were successful, the money would have to be repaid to the appellant. There is no evidence that that would pose any problems. It was not suggested that the solicitors would decline to repay the money the money they received and leave it to the respondent to find the money to repay the appellant. Nor was it suggested that the solicitors would depart from the original arrangement that they would not bill the respondent for their costs if she were unsuccessful on liability.
41 On the other hand, if the application is refused, the appellant will be denied the opportunity to overturn the finding against it on liability. It is true that it was open to the appellant to raise this ground at the time the notice of appeal was filed and it appears that the amendment is sought now only as the result of second thoughts by the appellant's solicitors. Nevertheless, in my view, in the circumstances of this case it is appropriate that the issues should be fully ventilated and accordingly I would allow the amendment.
42 I will hear the parties on the form of orders and on costs.
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