Chandler v Water Corporation
[2001] WASC 166
CHANDLER & ORS -v- WATER CORPORATION [2001] WASC 166
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 166 | |
| Case No: | CIV:2321/2000 | 5 JUNE 2001 | |
| Coram: | HASLUCK J | 26/06/01 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to amend refused | ||
| PDF Version |
| Parties: | RUSSELL VINCENT CHANDLER LYNETTE PAMELA CHANDLER ALAN DOUGLAS TINK MAY KATHLEEN TINK WESTDEK PTY LTD BRIAN SYDNEY ATKINS PETER WILLIAM VEERSMA ROZALYN KONSTEK BEVAN ROBERT FOSTER ROBYN JEANETTE FOSTER VINCENT ILLARDA TANIA IRIS ILLARDA PHIL GARDINER ENGINEERING PTY LTD PHILIP ANDREW GARDINER TERRENCE MALCOLM ROGERS SHR HOLDINGS PTY LTD DANIEL GRENVILLE ROGERS MICHAEL SCOTT ROGERS JOYMOR NOMINEES PTY LTD DONALD EDWARD MITCHELL GARY DONALD MITCHELL FOUR STAR ENGINEERS (WA) PTY LTD VINCENT MORAN RIVEREDEN PTY LTD RAYMOND JOHN HUMPHRIES OWNERS OF 33 FELSPAR STREET: STRATA PLAN NO 9423 WATER CORPORATION |
Catchwords: | Pleadings Application for leave to amend claim in negligence Failure to plead material facts in summary form and other matters of embarrassment Turns on own facts |
Legislation: | Supreme Court Rules, O 18 r 4, O 19 r 1, O 20 r 19, O 20 r 2(2), O 20 r 8 Water Agencies (Powers) Act 1984 , s 62, s 63, s 82 Water Corporations Act 1995, s 4, s 27 |
Case References: | Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Benning v Wong (1969) 122 CLR 249 Bruce v Odhams Press Ltd [1936] 1 KB 697 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Chappel v Hart (1998) 195 CLR 232 Cox Bros v Commissioner of Waterworks (1933) 50 CLR 108 Dare v Pulham (1982) 148 CLR 658 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Elston v Dore (1982) 149 CLR 480 Esanda Finance v Peat Marwick Hungerfords (1997) 188 CLR 241 Essendon Corporation v McSweeney (1914) 17 CLR 524 Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 Mako Investments Pty Ltd & Ors v Quindo Pty Ltd & Ors, unreported; SCt of WA; Library No 6838; 28 July 1987 Perre v Apand Pty Ltd (1999) 198 CLR 180 Pyrenees Shire Council v Day (1998) 192 CLR 330 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Williams v Milotin (1957) 97 CLR 465 Alec Finlayson Pty Ltd v Armidale City Council, unreported; FCA; No 29/1992; 31 December 1997 Anns v Merton LBC [1978] AC 728 Australian Competition and Consumer Commission v Golden West Network Pty Ltd & Ors, unreported; FCA; 19 August 1997 Avenhouse & Anor v Hornsby Shire Council (1998) 44 NSWLR 1 Campbelltown CC v Mackay (1989) 15 NSWLR 501 Coloca v BP Australia Ltd & Anor [1992] 2 VR 441 Dames & Moore Pty Ltd v Jovista Pty Ltd, unreported; SCt of WA; Library No 980285; 26 May 1998 Fry (also known as Dianne Roslyn Caton) v White, unreported; SCt of QLD; No 76/1995; 13 December 1995 Goeke v Nominal Defendant, unreported; SCt of NSW; 28 May 1991 Hill v Van Erp (1997) 142 ALR 687 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 Lamb v Cotogno (1987) 164 CLR 1 Lettice v Scarcella, unreported; SCt of NSW (Ireland J); 13 August 1998 Matania v The National Provincial Bank Ltd [1936] 2 All ER 633 Mouat v Clark Boyce [1992] 2 NZLR 559 Parker v Copeman (No 2), unreported; SCt of WA; Library No 6977; 16 December 1987 Payne v Young (1980) 30 ALR 577 Perry v Sidney Phillips & Son [1982] 3 All ER 705 R v Skinner (1772) 98 ER 529 Re Juson Pty Ltd (1992) 8 WAR 13 Sanders v Snell (1997) 143 ALR 426 Sanders v Snell (1997) 73 FCR 569 State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Unilever plc v Procter & Gamble Co [1999] 2 All ER 691 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- LYNETTE PAMELA CHANDLER
ALAN DOUGLAS TINK
MAY KATHLEEN TINK
First Plaintiffs
WESTDEK PTY LTD
Second Plaintiff
BRIAN SYDNEY ATKINS
Third Plaintiff
PETER WILLIAM VEERSMA
ROZALYN KONSTEK
Fourth Plaintiffs
BEVAN ROBERT FOSTER
ROBYN JEANETTE FOSTER
Fifth Plaintiffs
VINCENT ILLARDA
TANIA IRIS ILLARDA
Sixth Plaintiffs
PHIL GARDINER ENGINEERING PTY LTD
Seventh Plaintiff
(Page 2)
- PHILIP ANDREW GARDINER
Eighth Plaintiff
TERRENCE MALCOLM ROGERS
Ninth Plaintiff
SHR HOLDINGS PTY LTD
Tenth Plaintiff
DANIEL GRENVILLE ROGERS
MICHAEL SCOTT ROGERS
Eleventh Plaintiffs
JOYMOR NOMINEES PTY LTD
Twelfth Plaintiff
DONALD EDWARD MITCHELL
GARY DONALD MITCHELL
Thirteenth Plaintiffs
FOUR STAR ENGINEERS (WA) PTY LTD
Fourteenth Plaintiff
VINCENT MORAN
Fifteenth Plaintiff
RIVEREDEN PTY LTD
Sixteenth Plaintiff
RAYMOND JOHN HUMPHRIES
Seventeenth Plaintiff
OWNERS OF 33 FELSPAR STREET: STRATA PLAN NO 9423
Eighteenth Plaintiff
AND
WATER CORPORATION
Defendant
(Page 3)
Catchwords:
Pleadings - Application for leave to amend claim in negligence - Failure to plead material facts in summary form and other matters of embarrassment - Turns on own facts
Legislation:
Supreme Court Rules, O 18 r 4, O 19 r 1, O 20 r 19, O 20 r 2(2), O 20 r 8
Water Agencies (Powers) Act 1984 , s 62, s 63, s 82
Water Corporations Act 1995, s 4, s 27
Result:
Application for leave to amend refused
Representation:
Counsel:
First Plaintiffs : Mr T H Brickhill
Second Plaintiff : Mr T H Brickhill
Third Plaintiff : Mr T H Brickhill
Fourth Plaintiffs : Mr T H Brickhill
Fifth Plaintiffs : Mr T H Brickhill
Sixth Plaintiffs : Mr T H Brickhill
Seventh Plaintiff : Mr T H Brickhill
Eighth Plaintiff : Mr T H Brickhill
Ninth Plaintiff : Mr T H Brickhill
Tenth Plaintiff : Mr T H Brickhill
Eleventh Plaintiffs : Mr T H Brickhill
Twelfth Plaintiff : Mr T H Brickhill
Thirteenth Plaintiffs : Mr T H Brickhill
Fourteenth Plaintiff : Mr T H Brickhill
Fifteenth Plaintiff : Mr T H Brickhill
Sixteenth Plaintiff : Mr T H Brickhill
Seventeenth Plaintiff : Mr T H Brickhill
Eighteenth Plaintiff : Mr T H Brickhill
Defendant : Ms C H Thompson
(Page 4)
Solicitors:
First Plaintiffs : Brickhill Banaszak
Second Plaintiff : Brickhill Banaszak
Third Plaintiff : Brickhill Banaszak
Fourth Plaintiffs : Brickhill Banaszak
Fifth Plaintiffs : Brickhill Banaszak
Sixth Plaintiffs : Brickhill Banaszak
Seventh Plaintiff : Brickhill Banaszak
Eighth Plaintiff : Brickhill Banaszak
Ninth Plaintiff : Brickhill Banaszak
Tenth Plaintiff : Brickhill Banaszak
Eleventh Plaintiffs : Brickhill Banaszak
Twelfth Plaintiff : Brickhill Banaszak
Thirteenth Plaintiffs : Brickhill Banaszak
Fourteenth Plaintiff : Brickhill Banaszak
Fifteenth Plaintiff : Brickhill Banaszak
Sixteenth Plaintiff : Brickhill Banaszak
Seventeenth Plaintiff : Brickhill Banaszak
Eighteenth Plaintiff : Brickhill Banaszak
Defendant : Freehills
Case(s) referred to in judgment(s):
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Benning v Wong (1969) 122 CLR 249
Bruce v Odhams Press Ltd [1936] 1 KB 697
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Chappel v Hart (1998) 195 CLR 232
Cox Bros v Commissioner of Waterworks (1933) 50 CLR 108
Dare v Pulham (1982) 148 CLR 658
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Elston v Dore (1982) 149 CLR 480
Esanda Finance v Peat Marwick Hungerfords (1997) 188 CLR 241
Essendon Corporation v McSweeney (1914) 17 CLR 524
Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
Mako Investments Pty Ltd & Ors v Quindo Pty Ltd & Ors, unreported; SCt of WA; Library No 6838; 28 July 1987
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pyrenees Shire Council v Day (1998) 192 CLR 330
Sedleigh-Denfield v O'Callaghan [1940] AC 880
(Page 5)
Williams v Milotin (1957) 97 CLR 465
Case(s) also cited:
Alec Finlayson Pty Ltd v Armidale City Council, unreported; FCA; No 29/1992; 31 December 1997
Anns v Merton LBC [1978] AC 728
Australian Competition and Consumer Commission v Golden West Network Pty Ltd & Ors, unreported; FCA; 19 August 1997
Avenhouse & Anor v Hornsby Shire Council (1998) 44 NSWLR 1
Campbelltown CC v Mackay (1989) 15 NSWLR 501
Coloca v BP Australia Ltd & Anor [1992] 2 VR 441
Dames & Moore Pty Ltd v Jovista Pty Ltd, unreported; SCt of WA; Library No 980285; 26 May 1998
Fry (also known as Dianne Roslyn Caton) v White, unreported; SCt of QLD; No 76/1995; 13 December 1995
Goeke v Nominal Defendant, unreported; SCt of NSW; 28 May 1991
Hill v Van Erp (1997) 142 ALR 687
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225
Lamb v Cotogno (1987) 164 CLR 1
Lettice v Scarcella, unreported; SCt of NSW (Ireland J); 13 August 1998
Matania v The National Provincial Bank Ltd [1936] 2 All ER 633
Mouat v Clark Boyce [1992] 2 NZLR 559
Parker v Copeman (No 2), unreported; SCt of WA; Library No 6977; 16 December 1987
Payne v Young (1980) 30 ALR 577
Perry v Sidney Phillips & Son [1982] 3 All ER 705
R v Skinner (1772) 98 ER 529
Re Juson Pty Ltd (1992) 8 WAR 13
Sanders v Snell (1997) 143 ALR 426
Sanders v Snell (1997) 73 FCR 569
State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Unilever plc v Procter & Gamble Co [1999] 2 All ER 691
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
(Page 6)
1 HASLUCK J: These proceedings arise from the execution of certain works by the Water Corporation in and around Felspar Street, Welshpool, between May 1997 and December 1998. The plaintiffs have applied for leave to amend the statement of claim in this matter in terms of a lengthy minute of amended statement of claim dated 15 May 2001. I will call this the May minute of proposed claim.
2 The defendant had previously applied to strike out certain paragraphs of an earlier version of the statement of claim and the relevant chamber summons in that regard is before me also. The hearing before me proceeded upon the basis that the plaintiffs should not be allowed leave to amend in terms of the May minute of proposed claim unless they could satisfy the Court that the claim would not be struck out. Accordingly, debate was largely concerned with objections raised by the defendant pursuant to O 19 r 1 of the Supreme Court Rules.
3 Order 19 r 1 provides that the Court may at any stage of the proceedings order to be struck out any pleading on the ground that (a) it discloses no reasonable cause of action or (b) it is scandalous, frivolous or vexatious or (c) it may prejudice, embarrass or delay the fair trial of the action or (d) it is otherwise an abuse of the process of the court.
4 Counsel for the defendant acknowledged that, subject to formulating a plea complying with the Supreme Court Rules, the plaintiffs were probably in a position to advance an arguable claim for relief. Counsel contended, however, that the May minute of proposed claim in its present form did not set out clearly the basis upon which the plaintiffs' legal rights were said to have been infringed. She relied upon subpars (b) and (c) of the rule just mentioned in arguing that various portions of the May minute were vexatious or should be struck out as likely to prejudice, embarrass or delay the fair trial of the action. Accordingly, she argued, leave to amend in terms of the May minute of proposed claim should not be allowed.
5 The May minute of proposed claim reflects a claim for relief by way of damages brought by 18 plaintiffs against the Water Corporation in respect of the construction of certain sewerage works by the defendant, such works being part of section 5 of the Maida Vale main sewer project. This involved the laying of sewer pipes and allegedly injured business enterprises conducted by the plaintiffs in the vicinity of the Works. The pleading reflects causes of action referable to breach of statutory duty and the common law torts of negligence and nuisance.
(Page 7)
The writ of summons
6 The writ of summons in this matter was issued on 29 September 2000 with an indorsement of claim reflecting the causes of action relied upon by the plaintiffs. It seems that the plaintiffs do not allege that there has been specific material damage to the property of the plaintiffs, save for some allegations concerning the cause of action in nuisance. Essentially, the plaintiffs are advancing claims in tort for economic loss.
7 A memorandum of appearance was entered by the defendant on 9 October 2000. This was followed by a lengthy statement of claim filed and served by the plaintiffs on 27 November 2000.
8 The matter was then entered in the long causes list. On 15 December 2000, the defendant applied to strike out various portions of the statement of claim pursuant to O 20 r 19 on the grounds that the paragraphs in question were said to be scandalous, frivolous and vexatious and would prejudice, embarrass and delay the fair trial of the action.
9 On 5 February 2001, directions were given to the parties by the Court which envisaged that the plaintiffs would file any minute of proposed amendment to the claim and related submissions within 21 days so that the defendant's application to strike out could be brought on for hearing.
10 The plaintiffs were unable to comply with that time limit, but eventually filed and served the May minute of proposed claim on 16 May 2001. The plaintiffs then applied for leave to amend in terms of the May minute of proposed claim. This prompted the defendant to file and serve updated written submissions opposing the application for leave to amend upon the basis previously foreshadowed, namely, that a claim in the form proposed was vexatious and likely to prejudice, embarrass or delay the fair trial of the action.
11 It will be useful to begin by looking briefly at a number of legal principles bearing upon proceedings of this kind.
The substantive law
12 I do not wish to undertake a full review of the substantive law. Nonetheless, as the progress of the case is being followed by 18 plaintiffs, it is important that those with an interest in the matter be provided with an overview of the legal position so that they will have a better understanding of the link between matters of substantive law and the rules
(Page 8)
- of pleading, and thus a better understanding of the rulings made by the Court in response to the present application.
13 Put shortly, the plaintiffs in a case of this kind must single out the rules of law which are said to justify a grant of relief by the Court. They must then, by their pleadings, and by the evidence presented at trial, satisfy the Court that the rules of law relied upon are applicable to the facts of the matter. The plaintiffs are therefore obliged to exercise care in setting out in their statement of claim the case they intend to prove at the trial of the action so that the other party to the dispute, and the Court itself, will have a clear understanding of which rules of law are being relied upon and which facts are said to be important.
14 I have already noted that the writ of summons in this matter indicated that the plaintiffs intend to rely upon rules of law concerning breach of statutory duty, negligence and nuisance. I will say something about each of these matters in turn.
Breach of statutory duty
15 Section 4 of the Water Corporations Act 1995 establishes a body called the Water Corporation. The Corporation is not an agent of the Crown and does not have the status, immunities and privileges of the Crown. By s 27 of the Act, the functions of the Water Corporation are to supply water and to undertake works for that purpose.
16 Section 82 of the Water Agencies (Powers) Act 1984 confers upon the Water and Rivers Commission and the Water Corporation power to carry out works related to the provision of water services. Section 62 obliges these bodies to make good or pay compensation for any physical damage done to land or premises as a consequence of entering land or carrying out works. Section 63(1) reads as follows:
"The Commission or the Corporation shall not be liable for any injury or damage, other than damage of the kind referred to in section 62, occasioned in the exercise or purported exercise of a power conferred by this Act or any relevant Act and attributable to the Commission or the Corporation or a statutory authority or a person authorized by the Commission or the Corporation or a statutory authority unless negligence is established."
17 Breach of statutory duty has two principal roles in civil litigation: first, as a cause of action in its own right and, second, as evidence of
(Page 9)
- negligence. A right of action for breach of statutory duty arises where the statute either expressly or by necessary implication imposes a duty to exercise the power and confers a private right of action for a breach of the duties so owed. A specific reason for conferring a private cause of action must be found in the parliamentary intent, inferred by statutory construction, to confer a private remedy. Such an intent is more readily attributed to statutes which prescribe specific rules of conduct for safety in situations where the common law already demands an observance of reasonable care: Fleming: The Law of Torts (9th ed) page 207.
18 A cause of action for breach of statutory duty is distinct from the cause of action for common law negligence although the same set of facts may give rise to either cause of action. For example, in a recent High Court decision concerning the liability of public authorities, namely Pyrenees Shire Council v Day (1998) 192 CLR 330 Brennan J noted at par 16 that "the same set of circumstances may give rise to either a cause of action for breach of statutory duty or for common law negligence".
19 The standard of care imposed in cases of statutory duty is one of strict compliance thus creating, in effect, a tort of strict liability. The decided cases indicate, however, in regard to public works, that the courts are slow to assume that a statute confers a cause of action giving rise to strict liability. In Essendon Corporation v McSweeney (1914) 17 CLR 524 Griffith CJ said at 530 that when a public body undertakes in the exercise of statutory powers to construct a work of public utility, it is bound to use reasonable care both as to design and execution, and if from want of care injury is caused to an individual, he can maintain an action for damages. But in the absence of such negligence the construction of the work is a lawful act, which cannot afterwards become unlawful as against the constructors except by reason of their own subsequent unlawful acts or omissions.
20 In the present case, it is important to note that the effect of s 63 of the Water Agencies (Powers) Act 1984 may possibly be to confine claims for economic loss to cases where liability can be established in accordance with common law principles of negligence.
Negligence
21 As a general rule, the ordinary principles of the law of negligence apply to public authorities. Mason J, in Shire of Sutherland v Heyman (1984) 157 CLR 424, noted at pages 458 - 460 that a public authority may be subject to a common law duty of care when it exercises statutory power
(Page 10)
- in that "the existence of a statutory cause of action based on strict liability does not exclude liability for breach of a common law duty of care unless the statute provides otherwise".
22 In order to succeed in a claim for negligence, a plaintiff must first establish that the other party was subject to a duty of care to the plaintiff. For many years it was thought, especially in regard to personal injury cases, that a duty of care arose whenever there was a reasonably foreseeable risk of injury or loss. Recent decisions of the High Court now suggest, however, that in deciding whether a duty of care existed, one must ask three crucial questions, namely, whether it was reasonably foreseeable that the act or omission would cause harm, whether the relationship between the parties was so close or "proximate" that a duty arose, and whether it was just and reasonable that the law should impose a duty of care: Pyrenees Shire Council v Day (supra) at 419.
23 If a duty of care is found to exist in accordance with these principles, the plaintiff must then point to a breach of the duty by the alleged wrongdoer, that is to say, a failure to observe a reasonable standard of care. What is held to be reasonable care may often depend upon prevailing codes of safety or standards of conduct defined by experts or professional bodies.
24 The plaintiff must also show that breach of the duty of care caused a material injury or loss. It is apparent from the High Court's recent decision in Chappel v Hart (1998) 195 CLR 232 that in this context the courts will take a common sense view of causation. If the plaintiff can prove breach of duty followed by harm of a foreseeable kind, then a causal connection will generally be assumed unless the defendant can point to an intervening event or some other reason to the contrary.
25 Similar principles govern claims for economic loss, but here the High Court has recently held that the notion of proximity as a requirement additional to foreseeability is of limited use. The circumstances that call a duty of care into existence will be determined by reference to various discrete categories of liability apparent in the previously decided cases. For example, in the category of negligent misstatement, factors such as an assumption of responsibility or known reliance on the word of an adviser will attract a duty of care: Esanda Finance v Peat Marwick Hungerfords (1997) 188 CLR 241. Further, when a person is in a position to control the exercise of legal rights that is a factor similar to proximity that may give rise to a duty of care: Perre v Apand Pty Ltd (1999) 198 CLR 180.
(Page 11)
26 It is material to note, however, as one reviews the various judgments in Perre, that actual or constructive knowledge of an individual or an ascertainable class of persons likely to be affected by negligent conduct, and therefore vulnerable, was thought by several members of the court to be a significant factor in establishing a duty of care. McHugh J said at par 131 that knowledge, actual or constructive, of the defendant that its act will harm the plaintiff is "virtually a prerequisite of a duty of care in cases of pure economic loss" because negligence at common law is still a fault-based system. He added: "It would offend current community standards to impose liability on a defendant for acts or omissions which he or she could not apprehend would damage the interests of another".
27 What is required when it comes to pleading a claim for negligence for pure economic loss against an adviser is an allegation (and eventually proof) that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff for a purpose likely to lead the plaintiff to take some step or to enter into a transaction of the kind entered into, such entry being likely to be due to reliance on the information or advice. Thus, it was not sufficient to plead that it was reasonably foreseeable by an auditor that creditors and financiers or a corporation "might" rely on the audited accounts: Esanda Finance v Peat Marwick Hungerfords (supra).
28 It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified an ostensibly competent independent contractor, but it is not yet clear to what extent such an approach is applicable to cases in which economic loss is claimed: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550.
29 I pause to note that in the present case, the plaintiffs complain of negligence causing economic loss by reason of the acts and omissions of the defendant Water Corporation, by reason of the acts and omission of Mainline (being the independent contractor engaged by the defendant), by reason of the acts and omissions of Futura and its officers and employees (being the supervisor of the project) and arguably by reason of negligent misstatements for which the defendant is said to be responsible. It is immediately apparent from this overview of the law of negligence that care will have to be exercised by the plaintiffs in singling out which rules are relied upon and what are said to be the relevant facts of the matter.
(Page 12)
Nuisance
30 Nuisance may be described as unlawful interference with a person's use or enjoyment of land. The decided cases draw a distinction between nuisances producing material injury to property and nuisances causing sensible personal discomfort. In the former case, the damage is tangible and more easily measured and therefore the nuisance is more easily established. In the case of non-tangible injuries, there must be something over and above the everyday inconveniences and it is necessary to take into account the nature of the locality.
31 In Elston v Dore (1982) 149 CLR 480, the High Court held that in most cases the proper test to be applied in determining whether interference by an owner or occupier of land with the enjoyment of his land by another is wrongful so as to amount to a private nuisance, is what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. Also see Sedleigh-Denfield v O'Callaghan [1940] AC 880. In the latter case, Lord Atkin's judgment suggested at p 896 that an interference with the enjoyment of lands can be described as wrongful if it was deliberate or negligent.
32 One must also consider the effect of legislative authority for the nuisance-creating enterprise. If the nuisance is an inevitable consequence of the authorise statutory undertaking, it is sometimes held to be legalised and, in the absence of a compensation clause, legal redress is barred. For example, in Cox Bros v Commissioner of Waterworks (1933) 50 CLR 108 the High Court held that because the respondent was under obligation to charge the water mains with water, they were only liable in negligence and not in trespass or nuisance. Also see Benning v Wong (1969) 122 CLR 249 in which it was held that, without proof of negligence, the mere fact of an escape of gas from pipes being used by a body acting pursuant to a statutory authority did not constitute an actionable wrong. On the other hand, if statutory powers are exercised without proper care, then liability may attach to the party carrying out the works: Essendon Corporation v McSweeney (supra).
Rules of pleading
33 It is against the background of these matters of substantive law that I must now turn to the procedural rules bearing upon the manner in which the plaintiffs are obliged to present their claims to the Court so that the
(Page 13)
- opposing party, and the Court itself, will have a clear understanding of the facts and rules of law being relied upon.
34 I begin by noting that the effect of O 18 r 4 of the Supreme Court Rules is that two or more persons may be joined together in one action as plaintiffs with the leave of the Court or where, if separate actions were brought by them, some common question of law or fact would arise in all the actions. The effect of a later rule is that if the Court is of the opinion that the joinder will prejudice or delay the trial of the action, separate trials may be ordered. That is a matter of judicial discretion.
35 It seems that the plaintiffs in the present case have proceeded pursuant to O18 r 4 upon the assumption that the various claims against the defendant give rise to a common question of law or fact. It is important to understand, however, that each plaintiff is advancing a separate claim against the defendant and is therefore obliged to make out the constituents of each cause of action relied upon.
36 I digress briefly to note that a cause of action is simply the fact or combination of facts which give rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245.
37 These considerations are relevant to some of the basic rules concerning pleadings. By O 20 r 2(2) a statement of claim must not contain any allegation in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as facts giving rise to a cause of action so mentioned.
38 By O 20 r 8, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
39 Generally, the statement of claim must fulfil two pleading functions. It must allege the facts the plaintiff claims confer a cause of action, and second it must claim the relief sought in respect of the wrong done by the defendant. To reveal a cause of action, the statement of claim must show a connection between the plaintiff, the facts alleged, and the relief. All the material facts essential to the cause of action must be stated in summary form and with sufficient particularity to make the defendant aware of the case made against him. Cairns: Australian Civil Procedure (2nd ed) page 212.
(Page 14)
40 These principles concerning the way in which a claim must be presented are reflected in a number of previously decided cases.
41 A party to civil litigation is entitled to a statement of the opponent's case in sufficiently clear terms to allow the opposing party a fair opportunity to meet the case being advanced. An action may not be pleaded in general terms and must be alleged 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.
42 These considerations were summarised by the High Court in Dare v Pulham (1982) 148 CLR 658 at 664 as follows:
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490 at p 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron (1936) 54 CLR 572 at pp 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518); Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at p 207)."
43 In summary, then, to this point, it is apparent that the object of the statement of claim is to define with clarity the issues which the plaintiffs say are in dispute between the parties, to give fair and proper notice of the case which must be met so as to enable the defendant to prepare its case and to inform the Court as to the precise nature of the matters in issue.
44 The emphasis of the pleading must be upon facts relevant to the claim being advanced, from which it follows that matters of narrative and evidence should be omitted. Unnecessary allegations or details should not be pleaded. The effect of a document or conversation is to be pleaded, rather than the exact words.
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45 Further, whilst more than one cause of action may arise from a set of facts, facts relating to separate causes of action should be separately and distinctly pleaded to avoid embarrassment. Williams v Milotin (1957) 97 CLR 465 at 474; Mako Investments Pty Ltd & Ors v Quindo Pty Ltd & Ors, unreported; SCt of WA; Library No 6838; 28 July 1987.
May minute of proposed claim
46 Let me now turn to the May minute of proposed claim. It is a lengthy document containing 196 pages and consisting of 265 separate paragraphs, many of which include lengthy subparagraphs and particulars. Accordingly, for the sake of an orderly discussion, it is important that I try and reduce the pleading to its central constituents with a view to making an appraisal of the objections raised by the defendant.
47 The plaintiffs say in pars 3 to 6 of the claim that between July 1997 and December 1998 the defendant constructed the Works which involved the laying of sewer pipes along a line commencing at the corner of Elizabeth Street and Station Street, Welshpool and continuing to the northern junction of Felspar Street and Fargo Way.
48 The plaintiffs are described in pars 7 to 41 and it is apparent from the description that during the period in question the plaintiffs are said to have been operating businesses in the vicinity of the Works.
49 The plaintiffs say in pars 42.6 to 42.10 that Futura Constructions was appointed by the defendant as the Works inspector for the Works, with its agents or employees Kevin Guppy and Harry Haub having a lead role in that regard.
50 The plaintiffs say in pars 42.11 to 42.12 that Mainline Contracting Pty Ltd was engaged to undertake the construction of the Works, the said company being described as an agent and/or party authorised by the defendant to undertake the Works.
51 The plaintiffs say in par 42.13 that the Minister for Water Resources was a "representative" of the defendant, but no details are provided as to why this is so.
52 The plaintiffs say in pars 51 to 55 that the defendant had encountered soil difficulties resulting in delay in previous stages of the Maida Vale main sewer project and knew, or ought to have known, that a detailed soil analysis was required to enable a prospective tenderer to quote and prepare properly for the Works.
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53 They say that Mainline was selected to undertake the construction of the Works, having been provided for the purpose of the tender process with contractual documents of the usual kind, including a soil report known as the Coffey Report which was said to reflect a preliminary investigation only. Mainline was not encouraged to, and did not, conduct further soil investigations of its own.
54 The plaintiffs say in par 59 that Mainline was placed into administration on 10 December 1997 and did not have sufficient capital to complete the Works as from that date.
55 The plaintiffs say in pars 61 to 70 that from the commencement of the Works until shortly before the writ was issued there were various meetings and exchanges between those with an interest in the matter. I pause to observe that this part of the proposed claim is open to criticism on the grounds that it is referring to matters of narrative and evidence.
56 The plaintiffs say in par 71 and following paragraphs that there were terms of the contract between the defendant and Mainline whereby the latter was to comply with environmental guidelines and handle excavated material in a prescribed manner. The plaintiffs say in par 73 that from an inspection at the Works and from complaints from the plaintiffs the defendant knew, or ought to have known, of Mainline's breaches of the contract.
57 The plaintiffs plead in pars 76A to 76D that under and by virtue of various provisions of the Water Agencies (Powers) Act, the defendant in the exercise of its powers was to ensure, so far as it was reasonable and practicable, that detriment was not caused to land and premises. The plaintiffs plead that by s 63 of the Act, the defendant "can be held liable for injury" or damage occasioned by the negligence of the defendant or a person authorised by the defendant to exercise its powers.
58 The plaintiffs say in pars 77 to 79 that the plaintiffs and their respective businesses were in the immediate proximity of the Works and this was known to the defendant. The defendant knew or ought to have known that construction of the Works and its continuation was likely to "affect" the plaintiffs and/or their businesses (par 79.1); and the defendant was required to use reasonable care to ensure the plaintiffs did not suffer harm which was the reasonably foreseeable consequence of the defendant's acts or omissions in relation to the Works (par 79.2).
59 In par 80, the plaintiffs say that by reason of all the preceding facts and matters, the defendant by its servants, agents or contractors owed
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- various duties of care to the plaintiffs, including a duty to use reasonable care in the proper management, inspection and supervision of the Works (par 80.1); a duty to construct the Works using reasonable care (par 80.2); a duty to ensure the Works were constructed in a manner which would "least impact" on the plaintiffs (par 80.3); a duty to keep the plaintiffs informed (80.6).
60 The plaintiffs say in par 81 that the defendant breached certain of the duties of care by failing to consult with the plaintiffs prior to the Works about the nature of the respective businesses and the likely impact the Works would have on those businesses. In following paragraphs the plaintiffs say that the duties of care were breached in other respects, including that the defendant failed to complete the Works within a reasonable time.
61 The plaintiffs say in par 89 that the defendant breached the duties of care described in pars 80.1, 80.3 and 80.9 by failing to provide sufficient detail in the tender documents to enable the contractor, Mainline, to properly assess the methodology required to undertake the Works and its costing and the timeframe for the Works and in failing to ensure that the tender documents were accurate and the tender process sufficiently comprehensive. Particulars of the plea include reference to problems concerning the soil condition.
62 The plaintiffs say in par 90 and following paragraphs that the Works were not commenced within the prescribed timeframes and that information in the August circular was erroneous. Reference is made in par 100 to Mainline informing the plaintiffs about certain activities. Allegations of a similar kind are made in the following paragraphs and many of these paragraphs are concerned with describing various meetings and exchanges between the interested parties.
63 In par 139, the plaintiffs plead that "under the Act the defendant could be liable to the plaintiffs for damages, for negligence or breach of statutory duty".
64 The plaintiffs say in par 141 that further or alternatively by reason of the matters pleaded at pars 90 to 140 the defendant breached the duties of care described in pars 80.1, 80.3 and 80.6, with particular reference being made to the alleged duty to use reasonable care in the proper management, inspection and supervision of the Works (80.1), the alleged duty of care to ensure the Works were constructed in a manner which would least impact on the plaintiffs' respective businesses (80.3) and the alleged duty to keep
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- the plaintiffs accurately and regularly informed of the status of the Works (80.6).
65 The plaintiffs say in par 142 and following paragraphs that various meetings and exchanges took place involving the interested parties and their accountants, with reference being made to the possibility of mediation. I observe in passing that many of these matters seem to be matters of narrative rather than pleas of material facts.
66 The plaintiffs say in par 160 and following paragraphs that various signs were erected concerning the temporary closure of roads and the provision of detours. Some of the temporary arrangements are described, including reference to the Carney Way dirt track. Many of these matters should be struck out as irrelevant or as being matters of evidence.
67 The plaintiffs say in par 197 that further or alternatively by reason of each or all of the matters pleaded at pars 160 to 196 the defendant breached the duties of care described in pars 80.1 and 80.3; that is to say, the duty concerning management and the duty to construct in a manner having the "least impact" on the plaintiffs' businesses.
68 The plaintiffs say in par 198 and following paragraphs that various closures and detours occurred and reference is made to exchanges concerning these matters.
69 The plaintiffs say in par 215 that further or alternatively by reason of each of all of the matters pleaded at pars 198 to 214, the defendant breached the duties pleaded at par 80.1 and par 80.3; that is to say, the duty concerning management and the "least impact" duty. The particulars are that the defendant failed to provide any or any adequately organised safe and alternative routes for plaintiffs and/or passing trade to gain entry to the plaintiffs' premises.
70 The plaintiffs say in par 216 that the defendant allegedly breached the duty concerning management (80.1) and the duty to act professionally and courteously (80.10) by failing to ensure the management of the Works was undertaken on a fair, professional and reasonable basis without any conflict of interest affecting the management. The particulars in support of that plea refer to alleged shortcomings on the part of Futura, Guppy and Haub, including alleged conflicts of interest.
71 The plaintiffs say in par 217 that in breach of the duties just mentioned, the defendant failed to ensure that the defendant and its agents and contractors acted professionally and courteously with reference being
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- made to alleged conflicts of interest and the overlooking of complaints made by the plaintiffs as to the effect of the Works on their businesses.
72 The plaintiffs say in par 218 that the defendant breached its duties "outlined" in pars 80.1 (the management duty) and 80.6 (the duty to keep the plaintiffs informed) by "providing false and misleading advice concerning the plaintiffs' legal right to claim compensation against the defendant".
73 The plaintiffs say in par 219 that in breach of the duties "outlined" at pars 80.1 (the management duty) and 80.11 (an alleged duty to pay defect claims by Mainline), the defendant failed to pay the claims from Mainline for latent defects and/or variations to the contract.
74 The plaintiffs say in par 220 and following paragraphs that the soil analysis conducted for or on behalf of the defendant for construction of the Works was inadequate, with the result that construction of the Works was delayed and the defendant and/or its agents or contractors used inappropriate methods of construction. An allegation is made in par 223 that the defendant failed to provide adequate bores and dewatering pumps.
75 The plaintiffs say in par 224 that various breaches of duty, described as "the defendant's negligence" caused or permitted and for an unreasonable period of time dust to affect each of the plaintiff's business premises, damage to each of the plaintiff's property, noxious and offensive odours to spread into and over each of the plaintiff's property, access to each of the plaintiff's business premises to be restricted or denied passing trade and each of the plaintiff's clientele to have insufficient warning and/or notice of how to access the plaintiffs' respective businesses.
76 In pars 225 to 241, the plaintiffs purport to describe the loss and damage suffered by each plaintiff. For example, in par 225, reference is made to the first and second plaintiffs having suffered loss and damage, including (a) "loss of profits during the Works $859,000" and (b) "consequential loss of profits subsequent to the Works up to May 2000 $1,517,000". These plaintiffs say also that they have lost the opportunity to invest the sums just mentioned at commercial rates, or, alternatively, have paid interest on their overdraft since the said sums were due and have suffered loss and damage by reason of having to clear various assets. It is said that further particulars will be provided prior to trial.
77 The plaintiffs say in par 242 that by reason of various facts and matters specified elsewhere in the pleading during and since the construction of the Works "the defendant has shown a conscious and/or
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- contumelious disregard for the rights of the first, second and third plaintiffs". Particulars are supplied in support of that plea, including reference to the defendant's alleged failure to provide sufficient information and to complete the Works in a timely manner.
78 The plaintiffs say further in par 243 that these three plaintiffs claim exemplary damages and, further or alternatively, as to the first and third plaintiffs, damages for vexation.
79 The plaintiffs say in par 244 and following paragraphs that the other plaintiffs are entitled to damages upon the basis just described in overview. I note in passing that 256(e) contains a plea that the defendant "has misled the twelfth and thirteenth plaintiffs by stating that they were definitely not entitled to any compensation for loss and damage suffered during or by reason of the defendant's construction of the Works".
The defendant's objections
80 The plaintiffs' statement of claim is so lengthy and the defendant's objections so many that it becomes necessary, for the sake of an orderly discussion, to deal with the issues brought before me in general terms and then, more particularly, by reference to specific paragraphs of the May minute of proposed claim. In each case, my observations proceed from the principles I have set out earlier in these reasons concerning the substantive law bearing upon claims of the present kind and the rules of pleading.
81 Put shortly, the plaintiffs are obliged to exercise care in setting out in their statement of claim the case they intend to prove at the trial of the action so that the other party to the dispute, and the Court itself, will have a clear understanding of which rules of law are being relied upon and which facts are said to be important. I remind the parties that by O 20 r 8, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
82 Facts constituting the cause of action may be alleged in the claim, but facts going to prove the existence of those facts are evidence. For example, in an action for negligence a plaintiff must prove a duty of care, and a breach of that duty by the defendant. What the plaintiff must allege is the duty of care and the defendant's breach of that duty. The facts that constitute the breach are evidence. If the defendant owes the plaintiff a
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- duty to provide a safe system of work, facts that the defendant maintained machinery by a particular ineffective method are evidence. While the distinction is easy to state, it is often difficult to draw the line between fact and evidence in practice, as the distinction will often depend upon a matter of degree or detail: Cairns: Australian Civil Procedure (2nd ed) page 118.
83 The criticisms of the May minute of proposed claim advanced by the defendant in general terms are to this effect: the causes of action are not separately pleaded, with the result that the defendant is not able to plead distinct defences to each aspect of the claim. Further, in many instances there is no clear plea as to how the defendant's liability for the acts of third parties arises. To the extent that the plaintiffs seek to hold the defendant responsible for the acts or omissions of others, such as Mainline or Futura, or agents or employees of those parties, the basis of the defendant's alleged responsibility must be clearly pleaded. If the third party is said to be acting as an agent of the defendant, then the relevant contract or other relevant facts and matters must be set out.
84 The defendant goes on to say that in many instances the plaintiffs plead the existence of a duty of care without pleading the underlying facts and matters which are said to give rise to the alleged duty, or without identifying the same with sufficient clarity. The difficulties in that regard are accentuated by the plaintiffs' habit of pleading evidence rather than material facts in a summary form and by the pleading of matters which are entirely irrelevant to any cause of action. The defendant says also that in some instances there is a failure to properly plead the essential element of causation and to plead the loss and damages alleged to have been suffered.
85 The defendant says further that, to the extent that each of the plaintiffs have separate cases, it is not appropriate for the claims with respect to one plaintiff to be "rolled up" with claims made by another plaintiff. The clearest example of this is the rolling-up of the eighteenth plaintiff's claim with that of the others. It is apparent from par 41 that the individuals comprising the eighteenth plaintiff owned units at 33 Felpar Street, Welshpool. It is therefore difficult to see a resemblance between the claims of plaintiffs of that kind and claims arising from the operation of businesses.
86 The defendant also raises various objections to matters of terminology, such as references to a previous plea in the document having been "outlined" and to various allegations being described collectively as "the defendant's negligence" (see par 224) which seems to assume that
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- matters of allegation should be received as matters of fact. There is also a certain vagueness in many of the descriptions used such as the "likely impact" of the Works or the "least impact" and there is often a significant inconsistency in the use of terms.
87 Many of these criticisms are well-founded and are sufficient to establish that the plaintiffs should not be allowed leave to amend the statement of claim in the manner proposed. While dealing with the pleading in general terms, I will not attempt to address all the shortcomings of the pleading in its present form. It will be sufficient to draw attention to a number of significant defects which require that the proposed claim be struck out as embarrassing.
88 It is apparent from various sections of the claim that the plaintiffs place some reliance upon the rules of law concerning breach of statutory duty. Thus, the plaintiffs say at par 117 that there was a right to compensation from the defendant for losses incurred by reason of the Works in circumstances of negligence and/or breach of statutory duty. They say in par 139 that under the Act the defendant "could be liable" to the plaintiffs for damages for negligence or breach of statutory duty. In pars 76A to 76D, various provisions of the Water Agencies (Powers) Act are referred to, including s 63 whereby the defendant shall not be liable for any injury or damage unless negligence is established.
89 It will be apparent from my earlier review of the substantive law that breach of statutory duty has two principal roles in civil litigation: first, as a cause of action in its own right and, second, as evidence of negligence. The same set of circumstances may give rise to either a cause of action for breach of statutory duty or for common law negligence. In the present case, however, because the plea of breach of statutory duty is rolled up with the plea of negligence, it is not entirely clear whether the allegation of breach of statutory duty is to be viewed as a separate cause of action or whether the provisions of the Water Agencies (Powers) Act referred to in the claim, and especially s 63, are being relied upon as an affirmation of the rule in Essendon Corporation v McSweeney (supra) that if injury is caused as a result of a want of care in the exercise of statutory powers, the aggrieved party can maintain an action for damages.
90 In other words, a cause of action for breach of statutory duty seems to be partially set up at pars 76A to 76D, but then is subsumed into the pleading of the common law duties and breaches. If a discrete claim for breach of statutory duty is being set up, then it should be pleaded separately.
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91 One finds an example of this in the precedent set out in Britts: Pleading Precedents (4th ed) at pages 16 and 17. In that example, one finds in the sample precedent a straightforward allegation that the defendants by their servants and agents were guilty of negligence thereby occasioning injury to the plaintiff. This is followed by particulars of the alleged negligence such as that the defendant by its servants and agents was guilty of negligence in that it (i) failed to take any or any adequate precautions for the safety of the plaintiff; (ii) exposed the plaintiff to a risk of injury which could have been avoided by reasonable care; (iii) failed to warn the plaintiff of the dangers to which he was exposed during the course of his employment, and so forth. The next numbered paragraph contains an entirely separate allegation that the defendants were guilty of breaches of certain statutory duty causing the said injuries. Particulars are then provided to the effect that the defendants failed to comply with the provisions of certain safety regulations.
92 The plea of breach of statutory duty in the May minute of proposed claim is unsatisfactory and embarrassing because it is not clear, having regard to the pleading as a whole, whether each of the plaintiffs is setting up a claim for relief based upon the legal principles concerning breach of statutory duty or whether the statutory provisions are being referred to for some other purpose.
93 When one turns to the plaintiffs claim in negligence, it is important to remember (this being confirmed in argument before me) that the plaintiffs are essentially advancing a claim for economic loss. It follows from earlier discussion concerning the substantive law that the plaintiffs will need to set out in a summary form facts and matters sufficient to establish the existence of a duty of care and to define the nature of the duty, or various duties of care, with precision.
94 The decided cases mentioned earlier indicate that there is no general rule that one person owes to another a duty of care not to cause reasonably foreseeable harm, although there are some circumstances in which the law recognises a duty of care which will permit recovery of pure economic loss. Debate in recent years has been particularly concerned with refining the exclusionary rule or control factors that will limit the range of plaintiffs affected by foreseeable loss to manageable proportions. In Perre's (supra) McHugh J said at par 131 that knowledge, actual or constructive, of the defendant that its act will harm the plaintiff is "virtually a prerequisite of a duty of care in cases of pure economic loss" because negligence at common law is still a fault-based system.
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- Particulars relevant to knowledge must be provided: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601.
95 The proposed claim in the present case, in seeking to set up the necessary degree of proximity between the parties, seems to rely upon matters of knowledge and physical proximity. Thus, the plaintiffs plead in par 77 that the plaintiffs and/or their respective businesses were in the immediate proximity of the Works. They say in par 78 that the defendant knew or ought to have known that the plaintiff and/or their respective businesses were in immediate proximity of the proposed area for construction of the Works. The plaintiffs go on to say in par 79 that by reason of the matters pleaded at pars 2 to 78, the defendant by its servants, agents or contractors knew or ought to have known that construction of the Works and its continuation was "likely to affect" the plaintiffs and/or their businesses. It is by reason of these matters that the plaintiffs say in par 80 that the defendant by its servants, agents or contractors owed various duties of care to each of the plaintiffs.
96 It is immediately apparent, however, that by seeking to pray in aid all the matters pleaded at pars 2 to 78 as a basis for what the defendant knew or ought to have known the plea becomes too diffuse to be easily comprehended. Likewise, the notion that the defendant knew or ought to have known that the Works were "likely to affect" the plaintiffs is extremely vague.
97 The rules of pleading require the plaintiffs to state the material facts in summary form. It is therefore incumbent upon the plaintiffs to set out succinctly, having regard to the substantive law, what facts or matters are said to give rise to a relationship of proximity between the parties sufficient to give rise to a duty of care. If the defendant is said to have acted through an agent or contractor, then it is necessary to set out the facts and matters constituting the agency and which are said to make the defendant responsible for the acts of the agent. The pleading in its present form does not cover any of these matters with sufficient precision.
98 There are also difficulties in the way in which the various duties of care are expressed. For example, par 80.3 contains the broad assertion that the defendant was under a duty to use reasonable care to ensure that the Works were constructed and undertaken in a manner which would "least impact" on the plaintiffs and/or their respective businesses. It is not clear what the plaintiffs mean by this assertion. A layman might understand in some general sense that reference is being made to a duty of care to ensure that the plaintiffs were not injured financially in the
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- conduct of their businesses, but the notion of "least impact" conveys no clear meaning as to what the defendant might be required to do in order to discharge the so-called duty of care.
99 At par 218, one finds a broad assertion that the defendant breached its duties outlined in par 80.1 (a duty of care in respect of proper management of the Works) and 80.6 (a duty to keep the plaintiffs informed) by providing false and misleading advice concerning the plaintiffs' legal right to claim compensation against the defendant. The particulars provided refer to meetings, but without making clear in what capacity those at the meetings were acting or the nature of the advice given.
100 Further, if the duty to manage and inform is thought to encompass the giving of advice which may or may not prompt the recipient of the advice to take a step or act in some manner, then, by implication, this seems to bring with it an allegation that the defendant or its agents are liable for negligent misstatements. I have already indicated in my review of the substantive law that this is a complex area of the law and it may be necessary to plead explicitly that the defendant knew or ought reasonably to have known that the plaintiffs or some of them would act or fail to act on the advice: Esanda Finance v Peat Marwick Hungerfords (supra). Matters of this kind are not pleaded with particularity in the proposed claim.
101 It follows from these examples that the proposed claim is subject to various structural and conceptual flaws. It is also apparent from the discussion to this point, and from my earlier description of the proposed claim, that the difficulties I have touched upon are compounded by the fact that the plaintiffs have set out their claim at great length in a narrative form. There are many passages in the statement of claim which can be characterised as the pleading of evidence rather than the pleading of material facts. For example, in par 60 one finds a plea that in the early stages of the Works, the defendant knew that businesses were being seriously disrupted. Reference is made to the owner of a fuel station, Peter Adams, informing the defendant in that regard. This is a matter of evidence.
102 The claim also includes irrelevant facts. For example, in par 142 one finds a plea that on 12 March 1999 the plaintiffs and the defendant held a lengthy mediation conference at the defendant's office to discuss the impact of the Works on the plaintiffs. Facts of this kind are not relevant and, in any event, at best, are matters of evidence. Further, it is quite
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- apparent that the proposed claim is overly long. Many of the paragraphs concerning meetings and the position concerning signs are unnecessary, being either irrelevant or properly characterised as matters of evidence.
103 It follows from discussion to this point that, in my view, when the May minute of proposed claim is looked at in general terms, leave to amend should not be allowed because the claim does not comply with the rules of pleading mentioned earlier and is embarrassing in many significant respects. I consider that, having regard to the matters I have touched upon, leave to amend in terms of the May minute should be refused and the plaintiffs should instead be allowed liberty to replead by submitting a fresh minute of proposed claim.
104 However, for the sake of completeness, and in case I be wrong in the views I have just expressed, I must also address the more particular objections to the proposed claim raised by the defendant. It will be apparent from a review of the pleading in detail that the plaintiffs cannot be granted leave to amend in the proposed form.
Particular objections
105 The defendant objected to pars 4, 5 and 6 in which the route of the Works was described. These paragraphs were said to be essentially evidence. I dismiss this objection on the grounds that the plaintiffs are entitled to plead foundation facts.
106 The defendant objects to pars 16 and 17 on the grounds that details concerning the first-named fourth plaintiff's racing activities are irrelevant and a matter of evidence. I will allow this objection.
107 I disallow the objections to pars 22 and 30 on the grounds that these are arguably material facts. I disallow the objection to par 41 concerning the identity of Ann Rogers.
108 I consider that pars 42.6, 42.11, 42.12 and 42.13 should be struck out as embarrassing on the grounds that insufficient details are provided as to how the relationships with the defendant referred to were constituted. I consider also that 42.14 should be struck out, as the relevance of the allegation is not immediately apparent. The other matters of objection will be disallowed on the grounds that the defendant can seek particulars in due course as to the capacity in which the named individuals were acting.
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109 I consider that pars 47 to 51 concerning notices and circulars distributed by the defendant are matters of evidence and the relevance of the same has not been demonstrated.
110 As to pars 51 to 53, I accept that a plea concerning the role of Mainline is relevant. However, I consider that these paragraphs in their present form are embarrassing because the plea does not make clear in summary form what are the material facts relied upon.
111 Paragraph 58 concerning a meeting at which admissions were allegedly made should be struck out as evidentiary. As to par 59, the placement of Mainline into administration, may be relevant, but the plea in its present form should be struck out as embarrassing because the relevance is not made clear. Paragraph 60 should be struck out as evidentiary. Paragraphs 61 to 70 should be struck out as essentially evidentiary. Paragraph 71 refers to the terms of the contract between the defendant and Mainline. I will accept that this is sufficiently relevant although, in the event of the matter being repleaded, it is desirable that all pleas concerning the contract between the defendant and Mainline should be grouped together in the same section of the pleading for ease of reference.
112 Paragraph 73 contains a plea that, from an inspection of the Works and from complaints from the plaintiffs, the defendant knew, or ought to have known, of Mainline's breaches of the contract pleaded at par 72. In the absence of particulars, this plea is embarrassing in its present form and should be struck out because the authors of the complaints are not identified.
113 I will strike out par 76 as embarrassing in that it appears to refer to a conflict of interest without demonstrating the relevance of such a plea.
114 I have already noted that pars 76A to 76D appear to be an attempt to set up the statutory duties of the defendant pursuant to the Water Agencies (Powers) Act, but in their present form they are embarrassing in that it is not clear whether a claim for breach of statutory duty is being advanced.
115 I will strike out par 79 as embarrassing for the reasons previously given in that the matters relied upon (being "the matters pleaded at pars 2 to 78") are too broadly expressed. Further, as previously noted, the concept of the defendant knowing something that was "likely to affect" the plaintiffs and their businesses is too diffuse and therefore embarrassing.
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116 I consider that par 80 in its present form should be struck out for similar reasons. It is certainly open to the plaintiffs to allege that the defendant was subject to various duties of care. However, as I have already indicated, the material facts relied upon must be set out in summary form and with a degree of precision. As the plea presently stands, the defendant seeks to pray in aid all the matters previously pleaded from pars 2 to 78 and a plea in that form is embarrassing.
117 I pause to note that various criticisms can be made of the subparagraphs to par 80, including the use of broad expressions such as "least impact" and "likely impact". However, as it will obviously be necessary for the plaintiffs to replead this paragraph in the light of earlier discussion, I will not attempt to traverse the full range of criticisms that can be advanced.
118 Paragraphs 81 to 89 refer to various breaches of the duties "outlined" in par 80. In view of the fact that par 80 has been struck out and is to be repleaded, there is little to be gained by reviewing this aspect of the pleading as the nature of the duties pleaded may change. I have previously indicated that, in my view, the term "outlined" is potentially confusing and therefore embarrassing.
119 Paragraphs 90 through to 130 comprise largely matters of evidence with reference being made to various meetings and exchanges between the parties. These paragraphs are to be struck out as embarrassing. If these paragraphs are thought to contain material facts, then the facts in question must be pleaded in a summary form.
120 Paragraph 117 is to the effect that there was a right to compensation from the defendant for losses incurred by reason of the Works in circumstances of negligence and/or breach of statutory duty. A plea in that form seems to assert a proposition of law and should be struck out as irrelevant. It will be open to the plaintiffs upon repleading to reduce the essential assertions contained in this portion of the pleading to a statement of material facts in summary form.
121 Paragraph 131 contains a plea that the defendant failed to inform the plaintiffs that if the Works were negligently performed that ultimately this was the defendant's responsibility or, alternatively, that the plaintiffs could seek compensation against the defendant if the plaintiffs had suffered damage by reason of the defendant's negligence. This seems to set up a plea that the defendant had a duty of care to inform or advise the plaintiffs about their legal rights. I have already noted in earlier discussion that if
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the plaintiffs are seeking to advance a claim for negligent misstatements, then greater particularity will be required in order to set up an arguable case in that regard. Accordingly, in my view, the plea in its present form is embarrassing and should be struck out.
122 Paragraphs 131 to 140 are essentially matters of evidence and must be struck out accordingly, save for par 139. That paragraph contains the plea that under the Act the defendant could be liable to the plaintiffs for damages for negligence or breach of statutory duty. I have indicated in earlier discussion that a plea in that form is embarrassing as it fails to distinguish the causes of action. Further, and in any event, the plea is embarrassing because it amounts to a proposition of law.
123 Paragraph 141 should be struck out as embarrassing because it is not clear to what extent the defendant is relying upon the particulars in support of the alleged breach or the matters pleaded at pars 90 to 140 many of which, in any event, I have already characterised as being essentially evidentiary. Paragraphs 142 to 158 are essentially evidentiary and should be struck out as embarrassing. Paragraphs 160 to 214 contain an overly long narrative concerning the signs and access. This part of the pleading contains excessive detail and should be struck out as embarrassing in its present form. The plaintiffs must reduce this to a statement of material facts in summary form.
124 For the reasons previously given, I will make no comment on the various pleas of the alleged breach of duties as it may follow from the repleading of par 80 that there may be a change to the way in which duties of care are expressed. I have previously noted, however, while looking at the pleading in general terms, that par 218 concerning the provision of false and misleading advice is unclear and is therefore embarrassing. As to par 224, I have already noted that, in my view, use of the collective term "the defendant's negligence" is embarrassing and likely to prejudice the fair trial of the action as it appears to assume that which the plaintiffs are obliged to establish by evidence.
125 My observations upon the term "the defendant's negligence" have a bearing upon par 225 and following paragraphs in which the various plaintiffs assert that by reason of the defendant's negligence the plaintiffs have suffered loss and damage. It follows that if the term "the defendant's negligence" is thought to be embarrassing for the reasons previously given then these paragraphs will have to be repleaded with a view to setting out clearly the link between the defendant's acts of alleged default and the loss suffered by each particular plaintiff. It would be unwise to explore this
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issue further at this stage as it is a matter to be addressed in the course of repleading.
126 At par 242, the plaintiffs embark upon the process of pleading in respect of each plaintiff that the defendant has shown a conscious and/or contumelious disregard for the rights of the plaintiffs with various particulars being provided in that regard. Again, as it is by now apparent that the May minute of proposed claim will not be approved in its present form and that the plaintiffs will be obliged to replead extensively, I consider that it would be inappropriate to make rulings in regard to this aspect of the matter at this stage. The nature of the claim for damages will be best considered when the causes of action and other facts and matters unpinning the claim for relief have been clarified as a consequence of the repleading.
Summary
127 It follows from the preceding discussion that, in various respects, the May minute of proposed claim is embarrassing and that leave to amend in terms of the May minute of proposed claim will not be allowed. Accordingly, the application for leave to amend in terms of the May minute of proposed claim is dismissed. The plaintiffs will be allowed liberty to submit a further minute of proposed claim within a time prescribed by the Court. I will hear from the parties as to whether any further orders or directions are required.
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