Caird v Bendix Mintex Pty Ltd - [2003] WASC 68

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CAIRD -v- BENDIX MINTEX PTY LTD & ORS [2003] WASC 68

CORAM: ACTING MASTER DIXON

HEARD: 30 JANUARY 2003

DELIVERED : 7 APRIL 2003

FILE NO/S: CIV 1590 of 2002

BETWEEN: KERYL MAVIS CAIRD
Plaintiff
AND
BENDIX MINTEX PTY LTD (ACN 004 332 496)
First Defendant
AMABA PTY LTD (ACN 000 387 342)
Second Defendant
IVECO TRUCKS AUSTRALIA PTY LTD (ACN 004 065 061)
Third Defendant
FORD MOTOR COMPANY OF AUSTRALIA LTD (ACN 004 116 223)
Fourth Defendant
SALMON STREET LTD (IN LIQ) (ACN 004 125 197)
Fifth Defendant

Catchwords:

Application to strike out statement of claim - Causation - Turns on own facts

Legislation:

Nil

Result:

Statement of claim struck out

Category: B

Representation:

Counsel:

Plaintiff:     Mr T J Hammond
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     Mr L F A Nixon
Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     Clayton Utz
Fifth Defendant            :     No appearance

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

Bruce v Odhams Press Ltd [1936] 1 KB 697
Chandler v Water Corporation [2001] WASC 166
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Prast v Town of Cottesloe [2000] WASCA 274
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Young v Holloway (1895) P 87

Case(s) also cited:

ABB Service Pty Ltd v Hetherington [2001] WASCA 235

ACTING MASTER DIXON: By way of an application dated 22 November 2002 the fourth defendant ("Ford") has sought to strike out the endorsement on the plaintiff's writ of summons and also the plaintiff's statement of claim, or alternatively, various paragraphs of that statement of claim.
As regards the application to strike out the endorsement, the parties have reached agreement regarding an amendment to the endorsement, leaving outstanding only the question of costs. I do not need to deal with that aspect of the matter any further.
As regards the application to strike out the statement of claim, there appears to be some confusion in this respect. On 24 September 2002, whilst sitting as a Case Management Registrar, I gave the plaintiff leave to file and serve a reamended writ of summons by 1 October 2002 and also directed that the plaintiff file and serve a minute of proposed amended statement of claim by 8 October 2002. The plaintiff duly filed a minute of amended statement of claim dated 7 October 2002. It does not appear that leave has ever been given to the plaintiff to amend the statement of claim in terms of the minute. As such, the statement of claim currently on foot is that dated 23 May 2002. Ford's application is, however, directed towards that minute as if it stands as the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] WASC 68
Decision Date: 7 APRIL 2003

CaseChat Overview and Summary

The case of Caird v Bendix Mintex Pty Ltd involved an application to strike out a statement of claim concerning issues of causation and the adequacy of particulars in the pleadings. The matter was heard in the Supreme Court of Western Australia. The central dispute was whether the plaintiff had sufficiently pleaded the facts necessary to establish causation in relation to the deceased's injury.

The court was required to decide whether the statement of claim provided sufficient particulars to enable the defendants to adequately respond to the claims. Specifically, the court had to determine if the plaintiff had adequately pleaded the material facts necessary to establish that the deceased would have acted differently if they had received the warnings as alleged. The focus was on whether the pleadings contained the necessary details to formulate a complete cause of action and to prevent surprise at trial.

The court held that the pleadings were insufficient in that they did not adequately specify how the warnings would have led to different actions by the deceased. The court emphasised that pleadings must include all material facts necessary to formulate a complete cause of action and must be specific enough to allow the opposing party to respond appropriately. Given the deficiencies in the pleadings, the court found that the statement of claim could not stand as against Ford, one of the defendants. The court noted that these deficiencies were so significant that they affected the entire pleading.

The court indicated that it would hear from the parties to determine the appropriate orders to be made, considering the deficiencies identified. The plaintiff was given the opportunity to amend the statement of claim to address the deficiencies before the court ruled on the final orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As indicated by Hasluck J in Chandler v Water Corporation [2001] WASC 166:"A party to civil litigation is entitled to a statement of the opponent's case in sufficiently clear terms to allow the opposing party the fair opportunity to meet the case being advanced. An action may not be pleaded in general terms and must be pleaded with particularity: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705. The purpose of pleadings and particulars is to concentrate the issues of fact and to prevent surprise and consequent delay: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 221." Pursuant to O 20 r 8(1) of the Rules of the Supreme Court, a statement of claim must set out the material facts relied upon. According to Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712:"The word 'material' means necessary for the purpose of formulating a complete cause of action; and if one 'material' fact is omitted, the statement of claim is bad …" I accept Ford's proposition in this respect. It is the case that the plaintiff must show that had the pleaded warnings been given by Ford, then the deceased would not have suffered injury. This could only be because the deceased would have acted in a particular way or taken certain action in response to those warnings, such as by using a respirator. If that is the case then it should be pleaded by the plaintiff, otherwise Ford will be taken by surprise at trial. For the reasons set out above, I am of the view that par 28, 29 and 34 (insofar as it relates to Ford) of the minute are defective and cannot stand. These paragraphs are so central to the statement of claim that in my view the pleading as a whole cannot stand as against Ford. Bearing in mind the doubt set out in the beginning of these reasons as to the precise status of the minute, I will hear from the parties as to the appropriate orders to be made in light of these reasons.