Bartolo v CSR Ltd; Bartolo v Manpower Services (Australia) Ltd
[2015] NSWSC 105
•10 February 2015
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bartolo v CSR Ltd; Bartolo v Manpower Services (Australia) Ltd [2015] NSWSC 105 Hearing dates: 10 February 2015 Date of orders: 10 February 2015 Decision date: 10 February 2015 Before: Garling J Decision: Order that the plaintiff file on or before 13/3/2015 a Further Amended Statement of Claim, which should be served on the defendant on that day. This order is intended to apply and does apply to proceedings 2012/383880 in which CSR Ltd is the defendant and proceedings 2013/83906 in which Manpower Services Pty Ltd is the defendant.
The plaintiff to pay the costs of CSR Ltd of the Notice of Motion filed on 4/12/2014.
Proceedings listed for directions to 9am on 15/4/2015 before the Registrar.
Order Manpower Services (Australia) Pty Ltd to pay its own costs of the Motion.Catchwords: PROCEDURE – civil – application – amend statement of claim – evidentiary statement of plaintiff – expert report – ambiguity with use of word “pipe” – plaintiff to clarify ambiguity – order for plaintiff to file and serve further amended statement of claim – no question of principle Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Daniel James Bartolo (P)
CSR Ltd (D) (2012/383880) (D)
Manpower Services (Australia) Pty Ltd (D) (2013/83906)Representation: Counsel:
Solicitors:
E Welsh (P)
J Morris SC (CSR)
M Taylor (Manpower)
Brydens (P)
P Henriks (CSR)
Leigh Virtue & Associates (Manpower)
File Number(s): 2012/3838802013/83906 Publication restriction: Not applicable
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ex tempore Judgment
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Application has been made by a Notice of Motion filed on 3 December 2014 by the defendant, CSR Limited, for either directions or orders pursuant to the Uniform Civil Procedure Rules, which are intended to address a degree of factual ambiguity which has arisen in the plaintiff’s case between the Amended Statement of Claim which was filed on 26 February 2014; the evidentiary statement of the plaintiff filed on 8 October 2014 and a report of an expert which was served on 13 October 2014.
The Pleading
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It seems to be undisputed that on 31 December 2009, during the course of maintenance operations at a CSR concrete plant, the plaintiff sustained a penetrating injury in which a piece of wire of about two to three millimetres in gauge and about thirty centimetres in length penetrated his hand.
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The maintenance process which was being undertaken is pleaded to have been supervised by an employee of CSR. It is pleaded that the plaintiff, acting under instructions of that employee, opened a valve to permit acid wash to travel under some pressure through the pipes, which ordinarily carry concrete, for the purpose of cleaning the pipes and removing any calcification present in them. This case is pleaded in paragraph 16 of the Amended Statement of Claim in this way, setting out what then occurred:
“When the plaintiff turned on the said valve, the acid wash mixture was propelled out of the open pipe taking the piece of wire with it."
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Earlier in the pleading was an assertion of fact that bailing wire was used for the purpose of assisting in the securing of the connection of pipes in the concrete batching system.
The Evidentiary Statement
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In his evidentiary statement, paragraphs 20 and 22, the plaintiff says that to his observation, most of the hoses had a piece of wire attached on either side, which was used to secure the camlock, so that the hose would not become detached from the pipe while pumping was going on. It says that when the hoses were not attached to the pipes, the wire was left dangling from either side of the hose. I would understand that description to be that the wire was attached to the hose at all relevant times.
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In giving a description of his accident, the plaintiff says that he received instructions to open the valve and then the following occurred:
“As I undid the valve one of the hoses flew up into the air discharging the acid solution. It was not attached to a pipe. I immediately went to close the valve but I was unable to use my left hand and I realised that I had been injured."
The Expert Report
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Ms Sharon Todd, a consultant Occupational Health and Safety expert retained by the plaintiff, has prepared a report setting out what she concludes about what occurred. It is clear that by the time of her inspection, made for the purpose of her report, the system of work which she understood was in place at the time of the accident had been changed.
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Further, Ms Todd records a version of facts and circumstances of what occurred according to an account given to her in a discussion with the plaintiff. There, the plaintiff gave an account of a system of work in which the CSR employee required the plaintiff to cut lengths of wire to be used as retaining pins in the camlock couplings. Ms Todd records this, in paragraph 50:
“At approximately 1.45pm on 31 December 2009, the plaintiff was instructed by [the CSR employee] to open a valve. As the plaintiff opened the valve, another hose that was nearby to the plaintiff flew off the line resulting in the scrap bale wire pin becoming a projectile puncturing the plaintiff's left forearm."
An Ambiguity of Facts
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The various accounts of the plaintiff in his evidentiary statement, that which he has given to the expert and that which is pleaded in general terms in the Amended Statement of Claim, do not sit readily one with the other. There is ambiguity in the Statement of Claim with the use of the word “pipe” or “open pipe”, seemingly to describe both rigid pipes and flexible hoses. As well, it is unclear from the various accounts which the plaintiff has given in his evidentiary statement, and to Ms Todd, and it may be that he does not know, whether at the time of the injury to his hand the wire was in fact attached to the end of a hose which - having become dislodged under pressure - was moving about in a chaotic fashion; or whether the source of the wire was as a free standing projectile being forced through the air, either because it had become dislodged from the hose pipe or, alternatively, because it was contained within the acid wash mixture which sprayed out under pressure.
Discernment
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In light of that ambiguity, at least at this stage of the proceedings and having regard to the fact that in giving directions, this Court is required to identify the real issues in dispute so that the proceedings can be determined in a just, quick and cheap manner, I am of the view that the plaintiff needs to clarify the ambiguities which have been presented.
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As it seems to me, the ambiguities involve these issues: whether in the pleading the plaintiff is using the word “pipe” is to include flexible hoses or simply fixed pipes, and whether when using the terms in paragraph16 of the Amended Statement of Claim, it was intended to indicate that the flexible hose pipe took the piece of wire with it or alternatively whether the acid wash mixture propelled the piece of wire.
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I accept that a proper pleading may plead either alternative version of the facts because it may be that the plaintiff does not know with any precision what might have occurred. Nevertheless it seems to me, having regard to the plaintiff's evidentiary statement and the expert's account, that there is room for ambiguity in the plaintiff's pleading. In those circumstances, the plaintiff's counsel accepts that filing and serving a Further Amended Statement of Claim which clarifies the factual version upon which he relies is the preferable course.
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I would order that the plaintiff file on or before Friday, 13 March 2015, a Further Amended Statement of Claim which should be served on the defendant CSR Limited.
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For the sake of clarity, my order with respect to the filing of a Further Amended Statement of Claim is intended to apply and does apply in proceedings 2012/383880, in which CSR Limited as the defendant, and also to the proceedings 2013/83906, in which Manpower Services (Australia) Pty Ltd is the defendant.
Costs
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I will now deal with the questions of costs. The discrepancy arising out of the pleading and other matters was the subject of a request for particulars made by the defendant CSR in January 2014, and again on 16 October 2014.
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Neither request was responded to.
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I think that the defendant has established that there is a degree of ambiguity which requires attention by the plaintiff's lawyers. The motion has been precipitated by the absence of a response. In those circumstances the plaintiff should pay the costs of CSR Limited. I order Manpower Services (Australia) Pty Ltd to pay its own costs of the motion.
Orders
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I make the following orders:
Order that the plaintiff file on or before 13/3/2015 a Further Amended Statement of Claim, which should be served on the defendant on that day. This order is intended to apply and does apply to proceedings 2012/383880 in which CSR Ltd is the defendant and proceedings 2013/83906 in which Manpower Services Pty Ltd is the defendant.
The plaintiff to pay the costs of CSR Ltd of the Notice of Motion filed on 4/12/2014.
Proceedings listed for directions to 9am on 15/4/2015 before the Registrar.
Order Manpower Services (Australia) Pty Ltd to pay its own costs of the Motion.
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Amendments
09 June 2015 - Catchwords missing from coversheet.
Decision last updated: 09 June 2015
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