Briant v National Jet Systems Pty Ltd - [2003] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BRIANT -v- NATIONAL JET SYSTEMS PTY LTD & ANOR [2003] WADC 117

CORAM: COMMISSIONER REYNOLDS

HEARD: 7 MAY 2003

DELIVERED : 29 MAY 2003

FILE NO/S: CIV 3610 of 1999

BETWEEN: SUSAN JANE BRIANT
Plaintiff
AND
NATIONAL JET SYSTEMS PTY LTD
First Defendant
GLYNDALE PTY LTD
Second Defendant

Catchwords:

Appeal against Deputy Registrar decision to add second defendant - Application to strike out pleadings - Plaintiff amends to plead in the alternative first defendant or second defendant is employer - First defendant previously admitted was employer and now says and second defendant admits it was

Legislation:

Nil

Result:

Appeal dismissed
Parts of re-amended statement of claim struck out

Representation:

Counsel:

Plaintiff:     Mr B G Bradley
First Defendant             :     Ms P E Cahill
Second Defendant         :     Mr R C Ioppolo

Solicitors:

Plaintiff:     Bradley & Bayly
First Defendant             :     Jackson McDonald
Second Defendant         :     McAuliffe Williams & Partners

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Mako Investments Pty Ltd & Ors v Quindo Pty Ltd & Ors, unreported; SCt of WA; Library No 6838; 28 July 1987

COMMISSIONER REYNOLDS: The plaintiff is the lawful widow of David John Briant, deceased ("the Deceased") who died in Perth on 23 September 1998. She is also the Administratrix of the Deceased's estate pursuant to letters of administration granted to her by the Supreme Court of Western Australia on 3 December 1999. She brings this action against each and both of the defendants pursuant to the Fatal Accidents Act. The plaintiff alleges that on 19 September 1998 the Deceased in the course of his employment at a hangar at the Perth Domestic Airport was disassembling the nose wheel air leg of a BAe 146 jet when a piston exploded from the air leg and struck the Deceased causing injuries which resulted in his death at Royal Perth Hospital on 23 September 1998.
The plaintiff commenced her action by writ on 22 September 1999 in which she claimed damages on her own behalf and on behalf of the other dependants of the Deceased against the first defendant and 14 other defendants. Shortly after the commencement of the action the plaintiff discontinued against the 14 other defendants and on 10 May 2000 filed a statement of claim in which the first defendant was the only named defendant. In such statement of claim she alleged that when the Deceased was injured the first defendant occupied and controlled the hangar in which the maintenance and repair work was being carried out and also that it was the employer of the Deceased at the time of the incident.
In a defence filed on 21 June 2000 the first defendant admitted that it occupied the hangar and that it was the employer of the Deceased at the time of the incident. Thereafter the pre‑trial procedures of the action were conducted by both the plaintiff and the first defendant on the basis that the first defendant occupied the hangar and was the employer of the Deceased at the material time. The position changed significantly on 17 February 2003 when one Michael Hill on behalf of the first defendant when verifying the first defendant's answers to interrogatories stated that the Deceased was not employed by the first defendant. He stated that the Deceased was employed by Glyndale Pty Ltd which is now named as the second defendant. On 26 March 2003 Mr Bradley, acting on behalf of the plaintiff, was telephoned by Mr Ioppolo, acting on behalf of Glyndale Pty Ltd and informed that Glyndale Pty Ltd rather than the first defendant was the employer of the Deceased at the material time.
These statements made by Michael Hill and Mr Ioppolo caused the plaintiff's solicitors to make an application by way of chamber summons on 28 March 2003 seeking orders inter alia that the plaintiff be granted leave to re‑amend her writ to join Glyndale Pty Ltd as a second defendant in the action and to amend her statement of claim in the terms of a minute of proposed re‑amended statement of claim dated 27 March 2003 and filed therewith. On 2 April 2003 Deputy Registrar Harman gave the plaintiff leave to join the second defendant and ordered that the minute of proposed re‑amended statement of claim stand as the re‑amended statement of claim in the action with service of it being dispensed with.
Before me now for determination is an appeal by the first defendant against the orders made by Deputy Registrar Harman on 2 April 2003, an application by the first defendant to strike out parts of the re‑amended statement of claim and an application by the second defendant to strike out parts of the re‑amended statement of claim.
In relation to the appeal counsel for the first defendant informed me that until recently the first defendant mistakenly believed that it was the Deceased's employer. I was told that it has now been decided that the second defendant was the Deceased's employer at the material time. Counsel for the first defendant argued that the plaintiff should not have succeeded in joining the second defendant and that the efficient conduct of the action simply required an order that the first defendant be substituted by the second defendant. It was further argued that both the first defendant and the second defendant have the same insurer and so simply substituting the first defendant with the second defendant would have essentially maintained the status quo.
Counsel for the plaintiff has argued that given the change of mind by the first defendant on the issue of employment and the second defendant asserting that it was the Deceased's employer at the material time the plaintiff does not know which one or the other employed the Deceased. It was said that the plaintiff would need to further consider the employment issue after the defences had been filed.
To be frank I think that the statements made by Michael Hill and Mr Ioppolo to the plaintiff's solicitors in February and March 2003 respectively put the plaintiff in a difficult position. The action had been on foot for nearly three and a half years. For about the last three years or so the plaintiff reasonably believed that the first defendant was the Deceased's employer. The first defendant had admitted that it was in its defence. Just when the plaintiff was probably thinking that the action was getting close to being listed for trial the issue of the Deceased's employer has now been seriously called into question with the result that there will now be more interlocutory procedures and delay. Her solicitors were very prompt in making the application to join the second defendant.
With respect I do not think that the plaintiff should be bound by a decision to which she was not a party and made by and between the first defendant and the second defendant that the second defendant was the Deceased's employer at the material time. It may be that at least some of the information relied on by the first defendant and the second defendant in reaching such decision is unknown to the plaintiff. Having said that I should add that in my view the plaintiff would not be bound by such decision even if all of the information relied on by the first defendant and the second defendant to reach such decision is known to the plaintiff. Any one party is not necessarily bound by the position that another party or parties take on the same set of facts. What a court eventually concludes on the set of facts is another matter.
In my view to say that both the first defendant and the second defendant have the same insurer is not to the point. An admission by one party that it was the Deceased's employer at the material time does not of itself amount to an admission of liability. In a case such as this where a plaintiff alleges in the alternative that one party or another was the employer it may be that the plaintiff's case is stronger or weaker against one particular party than the other. At least the outset of the pleadings the defendants should not be able to limit the plaintiff to pursing the particular defendant of their choosing rather than the other or both in the alternative.
Further on the issue of insurance the fact that both defendants have the same insurer does not necessarily mean that they have the same policies and insurance coverage.
For reasons that I will give in a moment I think that parts of the plaintiff's re‑amended statement of claim should be struck out. However, in my view that does not necessarily mean that the Deputy Registrar erred in making the orders he did. His orders were primarily designed to join and did join the second defendant as a party and in particular as an additional party and not in substitution for the first defendant. In my view that was the correct approach. Having done that whether any particular parts of the re‑amended statement of claim should be struck out was another matter that could be properly considered later. That later time has now arrived. The first defendant has applied for pars 2C and 3A(i) of the re‑amended statement of claim to be struck out. The second defendant has applied for pars 4A(i), 4A(iv), 4A(v), 4A(x), 4B and 5 to be struck out. To properly understand par 4A(iv) it is necessary to read par 4A(ii). All those paragraphs provide as follows:
"2C. The First Defendant was at all material times the Ultimate Holding Company of the Second Defendant.
3A. At all material times the First Defendant and/or the Second Defendant:
(i)occupied and controlled a hangar ('the hangar') at the Perth Domestic Airport where it carried on the business of maintaining and repairing its aircraft;
4A.On 19 September 1998 at the hangar:
(i)At about 3:00 pm pursuant to directions which had been issued on behalf of the First Defendant and/or the Second Defendant by one their Senior Licensed Aircraft Maintenance Engineers a BAe 146 jet No VH‑NJE ('the jet') was moved into the hangar by a number of the First Defendant's and/or Second Defendant's servants including a Licensed Aircraft Maintenance Engineer being one Warren Gordon McKimm ('McKimm') in preparation for work to replace a shock absorber seal in the nose landing gear.
(ii)By 4:00 pm on that day McKimm and/or other Licensed Aircraft Maintenance Engineers unknown to the Plaintiff carried out preparatory works for the replacement of the said shock absorber seal including the jacking of the jet, opening of circuit breakers and removal of the lower strut ('the oleo') of the nose landing gear.
…
(iv)At all material times thereafter the oleo remained charged with nitrogen gas and no warning or notice of this fact or of the hazard thereby created was provided by or on behalf of the First Defendant and/or the Second Defendant to the Deceased.
(v)The Deceased commenced his first shift as a Licensed Aircraft Maintenance Engineer with the First Defendant and/or the Second Defendant at 4:00 pm and shortly thereafter was requested by the First Defendant's and/or the Second Defendant's leading hand/Licensed Aircraft Maintenance Engineer one Paul Norman Thackwell ('Thackwell') to assist him in completing the disassembly of the oleo and replacement of the shock absorber seal.
…
(x)At all material times Thackwell, McKimm the Licensed Aircraft Maintenance Engineers and the servants referred to in paragraph were acting in the course of their employment with the First Defendant and/or the Second Defendant.
4BThe Deceased's injuries and death as pleaded aforesaid were caused by the negligence of the First and Second Defendants and ~~its~~ their servants and agents.
PARTICULARS OF NEGLIGENCE
The Defendants and ~~its~~ their servants and agents were negligent in that they:
(i)failed to ensure that nitrogen had been correctly and fully discharged from the oleo before it was removed from the jet and again before attempts were made to remove the dowels which held the piston in place within the oleo.
(ii)required the Deceased to participate in the disassembly of the oleo without first warning and instructing the Deceased as to the need to discharge the nitrogen;
(iii)failed to instruct the Deceased as to the location of the charging valve through which the nitrogen had to be released;
(iv)failed to warn the Deceased of the dangers which would result from removing the dowels before the nitrogen was discharged;
(v)provided the Deceased with the manual which in the relevant chapters at pages 316‑317 thereof failed by diagram or otherwise to adequately draw the Deceased's attention to the location of the charging valve through which the nitrogen had to be released from the oleo;
(vi)failed to establish appropriate shift handover procedures to ensure incoming workers were fully acquainted with hazards such as the danger created by the oleo undischarged of its nitrogen gas;
(vii)through ~~its~~ their servant and agent Thackwell proceeded to remove dowels from the oleo by means of a slide hammer without first ensuring that all nitrogen had been discharged;
(viii)through ~~its~~ their servant and agent Thackwell required and permitted the Deceased to take up a position in front of the oleo to assist in the removal of the remaining dowels when the nitrogen had not been discharged;
(ix)through ~~its~~ their servant and agent Thackwell failed at any material time to check that the nitrogen had been discharged;
(x)through ~~its~~ their servants contravened the directions provided in the Manual at pages 316 and 317 thereof by failing to remove the wheels from the air leg before proceeding with the attempt to disassemble it when the removal of the wheels would have disclosed the charging valve.
(xi)failed to implement a system of work whereby the charging valve was required to be entirely removed from the oleo before any attempt was made to disassemble it;
(xii)having been informed by the Deceased that he had not been involved in hands‑on civil aircraft maintenance engineering work for some years failed to provide him with any or any adequate training, instructions, warnings or familiarisation programmes before requiring him to disassemble the oleo;
(xiii)failed to provide the Deceased with any or any adequate supervision;
(xiv)failed to instruct and warn the Deceased that a valve located on the air leg at about chest height was not the correct valve for the discharge of nitrogen;
(xv)failed to provide competent personnel to supervise the Deceased and/or to assist the Deceased with the performance of the task;
(xvi)failed to designate by means of a conspicuous notice on the air leg or otherwise the presence and location of the charging valve through which the nitrogen was to be released.
5.Further and in the alternative the Deceased's injuries and death as pleaded in paragraph 4A hereof were caused by a breach by the First Defendant and/or Second Defendant or an implied term of the contract of employment ~~between~~ with the Deceased ~~and the Defendant~~.
PARTICULARS OF IMPLIED TERM:
It was an implied term of the said contract that the First Defendant and/or Second Defendant would:
(i)provide the Deceased with a safe system of work;
(ii)exercise reasonable care for the safety of the Deceased;
PARTICULARS OF BREACH
The Plaintiff repeats and relies on the particulars of negligence pleaded in paragraph 4A hereof as constituting particulars of the First Defendant and/or Second Defendants' breach of the implied terms of the said contract."
There is no issue that the second defendant is a subsidiary of the first defendant. In my view pars 2C and 3A(i) are embarrassing and should be struck out. The pleading in its current form makes it unclear whether the plaintiff relies on only two causes of action against the first defendant namely that it was the occupier of the hangar and also that it was the employer of the Deceased at the material time or whether she relies on three causes of action against the first defendant namely that it was the occupier of the hangar and also that it was the employer of the Deceased but if not and it was the second defendant then the first defendant is nevertheless liable as it was the ultimate holding company of the second defendant at the material time. It should be noted in passing that an ultimate holding company is not necessarily liable for its subsidiary simply because it is the ultimate holding company.
In my view pars 4A(i), 4A(iv), 4A(v), 4A(x), 4B and 5 are also embarrassing and should be struck out because they comprise rolled‑up allegations against both of the defendants. If the first defendant was the ultimate holding company of the second defendant then it is highly likely that there will be some variations between the allegations against each of them. Further, par 5 refers to both defendants or each of them in the alternative in relation to the one contract of employment.
In my view the re‑amended statement of claim should be re-drafted to isolate the allegations against the first defendant from the allegations against the second defendant and thereby make it clear what causes of action and also what material allegations in relation to each cause of action are being pursued by the plaintiff against each of the first defendant and the second defendant.
For all these reasons I propose to make orders that the appeal be dismissed, that there be an order in terms of par 1 of the first defendant's application namely that pars 2C and 3A(i) of the re‑amended statement of claim be struck out and that there be an order in terms of par 1 of the second defendant's application namely that pars 4A(i), 4A(iv), 4A(v), 4A(x), 4B and 5 of the re‑amended statement of claim be struck out.