| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CHIVERS -v- PERRON INVESTMENTS PTY LTD & ORS [2003] WADC 243 CORAM : WILLIAMS DCJ HEARD : 8 OCTOBER 2003 DELIVERED : 7 NOVEMBER 2003 FILE NO/S : CIV 1849 of 2001 BETWEEN : JACK CHIVERS Plaintiff/Respondent
AND
PERRON INVESTMENTS PTY LTD
First Defendant
JONES LANG LASALLE (WA) PTY LIMITED (ACN 008 767 762)
Second Defendant
P & O BERKELEY CHALLENGE PTY LIMITED (ACN 000464 755)
Third Defendant/Appellant
Catchwords: Procedure - Supreme Court procedure - Rules of the Supreme Court, O 20, r 19 - Appeal by third defendant/appellant against Registrar's refusal to strike out plaintiff's minute of proposed amended statement of claim
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Legislation:
Nil
Result: Appeal dismissed Representation:
Counsel:
Plaintiff/Respondent : Mr G Hancy
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant/Appellant : Mr G I K Mcnish
Solicitors:
Plaintiff/Respondent : Slater & Gordon
First Defendant : Not applicable
Second Defendant : Not applicable
Third Defendant/Appellant : Cocks Macnish
Case(s) referred to in judgment(s):
Dalgety Australian Limited and Anor v De Vahl Rubin and Ors, FCt SCt of WA; Library No 5484; 24 August 1984
General Steel Industries Inc v Commissioner for Railways of NSW & Ors (1964) 112 CLR 125
Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Kimberley Downs Pty Ltd and Ors v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Niven & Anor v Grant & Ors (1903) 28 VLR 639
Packard & Ors v Transport Trading & Agency Co Ltd and Weir (1912) 14 WALR 191
Phillips v Phillips & Ors (1878) 4 QBD 127
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Case(s) also cited:
Agar v Hyde [2000] 201 CLR 552
Bruce v Odhams Press Ltd [1936] 1 KB 697
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Crimmins v Stevedoring Industry Finance Committee (1999) 2000 CLR 1
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Donoghue v Stevenson (Snail in the Bottlecase) [1932] AC 562
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82
Graham Barclay Oysters Pty Ltd v Ryan [2002] 194 ALR 337
Hargrave v Goldman (1963) 110 CLR 40
Jaensch v Coffey (1984) 155 CLR 549
Kenny v Scholl (1905) 7 WALR 197
Kondis v State Transport Authority (1984) 154 CLR 672
Lonrho PLC v Fayed & Ors [1992] 1 AC 448
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 205 CLR 254
Perl Exporters v Camden London Borough Council [1984] 1 QB 342
Rubenstein v Truth & Sportsman & Sportsman [1960] VR 473
Smith v Leurs (1945) 70 CLR 256
Smith v Roman Catholic Archbishop of Perth [2001] WASC 86
Williamson v London & Northwest Railway Co (1879) 12 Ch D 787
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1 WILLIAMS DCJ: This is an appeal against the decision of Registrar Wallace delivered on 24 July 2003, whereby she ordered that the third defendant's application to strikeout the plaintiff's Minute of Proposed Re-Amended Statement of Claim dated 3 June 2003 be dismissed.
2 The plaintiff's action against the third defendant is for damages in respect to personal injury, which he allegedly sustained on 22 September 1997 when he slipped in a puddle of water on the floor of the Mirrabooka Shopping Centre. The first defendant was the owner and occupier of Mirrabooka Shopping Centre: (pars 4 and 6). The third defendant was engaged by the second defendant, the Centre Manger, to clean the centre: (pars 5 and 5a). A puddle of liquid was present at the centre on 22 September 1997: (pars 8, 9 and 10).
Order 20 Rule 19 Applications 3 The principles to be applied in considering an application under O 20 r 19(1)(a) to strike out a statement of claim as not disclosing a reasonable cause of action were summarised as follows by Master Staples in Kimberley Downs Pty Ltd and Ors v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986: (a) The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course: Packard & Ors v Transport Trading & Agency Co Ltd and Weir (1912) 14 WALR 191 per Burnside J at p195. (b) On the application, not only must all the facts alleged in the statement of claim be accepted as being true, but it must be taken for granted that in all other points the pleading is unassailable: Niven & Anor v Grant & Ors (1903) 28 VLR 639 per Holroyd J at p106. (c) Great care must be exercised to ensure that the plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways of NSW& Ors (1964) 112 CLR 125 per Barwick CJ at p130. (d) However the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may
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be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed: Ibid. (e) As a general rule, a plaintiff is entitled ... as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for a legal conclusion contended for by the plaintiff that the pleading should be struck out: Dalgety Australian Limited and Anor v De Vahl Rubin and Ors, FCt SCt of WA; Library No 5484; 24 August 1984. (f) A Court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365 per Master Allan. 4 A statement of claim must set out all of the facts material to prevent the defendant from being taken by surprise. It is essential that the pleading should state those facts which will put the defendant on guard and tell it what it has to meet when the case comes on for trial: Phillips v Phillips & Ors (1878) 4 QBD 127 at pp138 and 139 per Cotton LJ. 5 The third defendant's submission is based on a number of propositions as follows: "Duty of Care 19. Generally, person A is under no affirmative duty to prevent a third party (person C) from harming person B unless there is a special relationship between persons A and B, for example, the relationship between an occupier and visitor: see Smith v Leurs (1945) 70 CLR 256 at 262; Modbury Triangle v Anzil 205 CLR 254 at 302; Graham Barclay v Ryan [2002] 194 ALR 337 at 362; Hargrave v Goldman (1963) 110 CLR 40 at 66; Smith v Littlewoods 1 AC 241 at 272; Gordon v Tamworth Jockey Club Inc. unrep: Sup Ct NSW.(C.A), 16 April 2003, BC200301814 at [24], [42]. 20. Further, person A has no affirmative duty to warn person B of a risk of harm unless person A created the harm or there
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is a special relationship between the parties: see Dorset Yacht Co v Home Office [1970] AC 1004 at 1060; Graham Barclay v Ryan (supra) at 358. 21. A special relationship is a relationship: (a) in which person A has undertaken responsibility for the care, supervision or control of person B: see Kondis v State Transport Authority (1984) 154 CLR 672 at 687; Modbury Triangle v Anzil (supra) at 265; or (b) which gives rise to an imposition or assumption of responsibility upon or by person A for person B's safety in circumstances where person B might reasonably expect that due care will be exercised by person A: see Kondis v State Transport Authority (supra) at 687; Mondbury Triangle v Anzil (supra) at 265; Smith v Littlewoods (supra) at 272.
22. Person A is under no affirmative duty to prevent person C from harming person B unless there is a special relationship between persons A and C such that person A can exercise control over person C: see Smith v Roman Catholic Archbishop of Perth, unrep: Sup Ct WA, 3 April 2001, BC200101366 at [10]-[12]; Agar v Hyde [2000] 201 CLR 552 at 582-583; Modbury Triangle v Anzil (supra) at 270, 292; Peri Ltd v Camden LBC [1984] 1 QB 342 at 349, 359; Gordon v Tamworth Jockey Club Inc (supra) at [21], [33]." 6 In summary the third defendant is saying that the plaintiff was not a party to the cleaning contract and there being no plea of a special relationship between the plaintiff and third defendant no liability can arise in those circumstances. 7 On the other hand the plaintiff's submissions are as follows: "2. The presence of a puddle of liquid on the ground in a shopping centre constitutes a hazard to users of that centre. Removal of a hazard of that kind is within the control and power and ambit of agreed responsibility of the contract cleaner. Shoppers are vulnerable to such a hazard and may lack the ability to protect themselves from it.
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3. Control of a hazard by the defendant and vulnerability of the plaintiff to it may be sufficient to impose on the defendant a duty to take reasonable care concerning the hazard: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 24, 39. 4. Further by reason of its assumed responsibility and control the cleaner may be viewed as an occupier (see Occupier's Liability Act, s2), or alternatively, it is arguable that there was a relationship between the cleaner and shoppers that was analogous to that of occupier and entrant. There is physical proximity between the work carried out by a cleaner and a shopper: see Donoghue v Stevenson [1932] AC 562, 580; Jaensch v Coffey (1984) 155 CLR 549, 584-585." 8 It would appear from the authorities referred to in par 3 above that the proposition may well be confined to situations where the defendant is a public authority. However in my view it is not the situation that it is unarguable. Having regard to the proposition stated in Hospitals Contribution Fund of Australia v Hunt (supra) that a court of first instance should be careful not to risk stifling development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that the cause action will lie, I am of the view that the plaintiff's Re-Amended Statement of Claim should be allowed to stand. 9 For those reasons I would dismiss the appeal. |