Ciprijanovic v Schindler Lifts Australia Pty Ltd
[2013] NSWSC 431
•02 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431 Hearing dates: 28/03/2013, 10/04/2013 Decision date: 02 May 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the Notice of Motion filed by the plaintiff on 19 March 2013 be dismissed.
(2) Reserve any question of costs of the motion.
Catchwords: PROCEDURE - motion to strike out parts of a defence - non-admission and denial in a defence may constitute proper pleading - no issue of general principle Legislation Cited: Civil Liability Act 2002
Uniform Civil Procedure Rules 2005
Workers' Compensation Act 1987Category: Procedural and other rulings Parties: Andelija Ciprijanovic (P)
Schindler Lifts Australia Pty Ltd (D1)
South Western Sydney Local Health District (D2)Representation: Counsel:
S Eistis (P)
D Lloyd (D1)
L Morgan (D2)
Solicitors:
The Compensation Lawyers (P)
Wotton & Kearney (D1)
Moray & Agnew (D2)
File Number(s): 2011/260544
Judgment
The plaintiff, Ms Andelija Ciprijanovic, by a Notice of Motion filed on 19 March 2013, seeks orders to strike out paragraphs 5 and 6 of the defence of the first defendant.
28 March 2013
The argument on the matter took place initially on 28 March 2013. In advance of that argument, submissions had been filed.
The solicitor for the plaintiff, when called upon to make any further oral submissions to the Court on that day, indicated that he did not wish to do so and was content to rely upon his written submissions.
I then delivered an ex tempore judgment on the Notice of Motion, in which I expressed the conclusion that I should dismiss it.
After delivery of my reasons but before orders were formally entered, it became apparent to the solicitor for the plaintiff that the orders sought in the Notice of Motion, were not correctly expressed. He sought, and was granted leave, to amend the Notice of Motion, and to file any further evidence upon which he wished to rely.
In the circumstances, I took the view that the better course was to regard the Motion as part heard, to in effect, withdraw the judgment, and allow the plaintiff the opportunity of putting any further submissions that were necessary. The first defendant did not oppose this course, subject to any submissions about costs. I reserved costs.
10 April 2013
The hearing of the matter resumed on 10 April 2013. The plaintiff relied upon further evidence, and made further lengthy submissions.
At the conclusion of the argument, I indicated that, for reasons which I would deliver in due course, I would dismiss the Motion, including the amended orders.
These are my reasons for making that order on 10 April 2013.
Nature of Pleaded Case
On 12 August 2011, the plaintiff filed a Statement of Claim in which she claimed damages for personal injury sustained on 2 September 2008, in the course of her employment at Liverpool Hospital. She pleaded that whilst attempting to leave an elevator she fell from the floor of the lift onto the floor of the basement because the elevator had stopped about 50cm above the floor.
The then sole defendant, Schindler Lifts Australia Pty Ltd, now the first defendant, was alleged to owe the plaintiff a duty because it had been engaged to provide periodic repairs and routine maintenance to the elevator at Liverpool Hospital from which the plaintiff had fallen.
On 16 May 2012, an Amended Statement of Claim was filed, which had the effect of joining the South Western Sydney Local Health District as the second defendant. That Local Health District is the legal entity responsible for the conduct of Liverpool Hospital.
Paragraph 4 of the Amended Statement of Claim pleaded the factual events leading to the plaintiff's injuries.
Paragraph 5 of the Amended Statement of Claim pleaded the following:
"The cause of the elevator failing to level with the basement floor was a stranded rope shutdown."
Paragraph 6 of the Amended Statement of Claim pleaded that the accident occurred due to the negligence of Schindler Lift's employees or agents. In paragraph 7, eight particulars of that alleged negligence were set out.
In summary, the allegations were that Schindler Lifts failed to regularly or adequately examine the rope by which the lift was operated; failed to identify that it was "stranding" and required replacement; failed to replace the rope and then that it failed to warn people about what was happening. In general terms, it was also alleged that it failed to provide reasonable and appropriate mechanical service and maintenance of the elevator.
On 5 June 2012, the first defendant filed a Defence to the Amended Statement of Claim. In that Defence, the first defendant did not admit paragraph 4 of the Amended Statement of Claim and denied paragraph 5, which, it is to be recalled, was the paragraph containing the allegations about the cause of the elevator failing to level with the basement floor. It denied that it was negligent. It denied various particulars set out under the allegation of negligence and did not admit the injury, loss and damage claimed.
In addition, there were other pleadings which related to the effect of s 151Z(2) of the Workers' Compensation Act 1987, an allegation of contributory negligence and an allegation that the risk to which the plaintiff was exposed was obvious within the meaning of s 5F of the Civil Liability Act 2002.
Submissions of the Plaintiff
In broad terms, the plaintiff submitted that paragraphs 5 and 6 of the defence, which constitute their denials of the plaintiff's allegations about the cause of the accident and the negligence of the first defendant, do not comply with the requirements, variously expressed, of the Uniform Civil Procedure Rules 2005.
It is submitted that the consequence of such a pleading is that the defence does not reveal any pleaded fact or other matter on which the denials of the cause and the allegations of negligence were based. It is submitted that because of this form of the defence, the plaintiff could not determine what the basis of the denials of the allegations were, particularly in circumstances where the plaintiff's allegations were said to be based on expert evidence.
It is also submitted that there might have been a malign reason behind such a defence. The plaintiff's solicitor said this in his first affidavit:
"19 The second concern involved a suspicion based on my experience as a practising solicitor for a number of years. The reason that the particulars of negligence were denied but no fact or other matter pleaded or alleged ... ... in the defence document was that the first defendant wished to avoid summary judgment."
As well, the plaintiff's solicitor points in his affidavit to an unsatisfactory exchange of letters of request for particulars, which he submits points strongly to his suspicions being soundly based.
In support of the submissions, the plaintiff draws attention to an expert report served by the solicitors for the first defendant. That report, dated 5 December 2012, is by Thomson Elevator Consultancy Services.
On page 7 of the report, the expert records the contents of a work ticket completed by the attending lift maintenance technician with respect to the events of 2 September 2008, which is the day upon which the plaintiff alleges she was injured when the lift malfunctioned, although those events are not the subject of any admission by the first defendant.
The expert has interpolated his expert interpretation of the lift ticket, and records the contents of it, together with that interpretation, in the following way:
"Call. Floor Levels Out. (this describes what the reported fault was) Running on arrival. (this means the lift was in operation when the lift technician arrived) Ride in Lift 20 minutes continuous to random levels (this is self explanatory) Check (?) Machine (this means the lift technician went to the lift machine room to check the machinery there after checking the lift car operation) Found stranded rope (this means the lift technician discovered a hoisting rope had started to come apart) Shutdown (this means the lift technician turned the lift off as repairs and parts were required to repair the lift)."
The lift was clearly running and fully operational when the technician arrived. The expert went on to express his opinion that, since the lift was operational when the lift technician arrived, the lift could not have stopped prior to that point in time, by reason of a stranded rope shutdown, which was the cause attributed to the performance of the lift in the plaintiff's Amended Statement of Claim.
The expert went on to explain that if a stranded rope shutdown had occurred, then a switch, which is located on top of the lift car, would operate in a way which had the effect of removing power from the lift completely. In those circumstances, the lift doors could not open and, further, the lift could not resume ordinary operations unless and until the safety switch was reset. That resetting process could only be carried out by an authorised lift mechanic.
Accordingly, for those reasons the expert concluded that the cause pleaded by the plaintiff could not have, and was not in fact what, occurred.
At the conclusion of the report, the expert expressed this opinion, which was necessarily dependent upon assuming that the facts recounted by the plaintiff in her pleading were correct. The first defendant had not admitted the correctness of those allegations. The expert said:
"Lift 6 allegedly suffered a fault on 2 September 2008 that resulted in the lift stopping above the basement floor level by approximately 500mm, apparently due to an intermittent unidentified fault (which was never clearly identified or rectified)."
He went on to say that there was "... no way of reasonably knowing or preventing the happening of 2 September 2008".
The plaintiff submits that, having regard to that explanation, the provisions of r 14.14 of the UCPR require that the defendant must specifically plead that the accident was caused by unknown and undiscoverable mechanical defect: see 14.14(2); 14.14(3) of the UCPR.
The plaintiff submits that because the defence has only pleaded a bare denial rather than the proper particulars required by r 4.14 of the UCPR, it is a defective and embarrassing pleading which, pursuant to r 14.28 of the UCPR, ought be struck out.
Further, the plaintiff submits that upon the defence being struck out, the Court would not give leave to the first defendant, for various reasons, to re-plead the defence to comply with the UCPR.
Discernment
In its defence, the first defendant has not admitted that the events pleaded by the plaintiff as taking place and causing her injuries, in fact occurred. There is nothing wrong with such a pleading. It has the effect of putting the plaintiff to proof of her factual allegations. It appears that no one was present when this accident is said to have occurred. Certainly, no employee or agent of the first defendant was present. Indeed, in this circumstance, having regard to the contents of the work ticket, there is a sufficient reason for the first defendant to put the plaintiff to proof of her allegations. Such a pleading is entirely proper.
Paragraph 5 of the Amended Statement of Claim, which is denied in the defence, is a straightforward pleading of a specific factual cause of the elevator failing to level with the basement floor. The expert report available to the first defendant provides abundant support for a denial of that factual cause. That is what the defence does in paragraph 5.
The plaintiff does not allege any other cause of the accident. The plaintiff does not allege in the Amended Statement of Claim that the failure was due to an unidentified cause. On the contrary, the plaintiff, for reasons best known to her, chose to plead a specific identified cause and no other. In those circumstances, it was not incumbent upon, nor was it necessary for, the first defendant to plead an alternative cause including some unknown and undiscoverable mechanical defect. That was not its case.
It is the first defendant's case simply was that having regard to the surrounding circumstances, of which there was a contemporaneous note, the cause relied upon by the plaintiff did not occur, and could not have occurred.
Unless and until the plaintiff chose to amend her Amended Statement of Claim in some way which broadened the allegation about the cause of the lift failure, if that is what occurred, beyond the specific pleaded cause of a stranded rope shutdown, there was no obligation, in this case, for the first defendant to plead its defence, in any different terms.
I am not satisfied that the provisions of r 14.14 operated in this case in the way the plaintiff claims, so as to result in the first defendant's defence being an inappropriate one.
The plaintiff sought to rely upon r 14.28 of the UCPR in support of the proposition that the form of the defence had a tendency to cause prejudice or embarrassment and delay the proceedings. I have concluded, for the reasons which I have already explained, that this is not so.
An Incidental Issue
The real basis of the plaintiff's complaint, so it seems to me, is that at the time the plaintiff commenced proceedings and instructed an expert, the plaintiff was unaware of the contents of the work ticket, which is a contemporaneous record demonstrating various facts which suggest that the lift did not shut down for the reason which the plaintiff alleged.
It is clear that the contents of that work ticket did not come to the plaintiff's attention prior to about December 2012. Upon receiving that note, and taking further expert advice, it seems that the plaintiff accepts that the specific cause which she pleads cannot be made out.
These circumstances give rise to a question about an appropriate order for costs about which it is appropriate to say nothing at this stage.
Conclusion
I have concluded that the arguments and submissions put by the plaintiff do not persuade me that the defence ought be struck out on any of the bases argued.
Accordingly, it is appropriate that the motion filed by the plaintiff on 19 March 2013 be dismissed.
Further Proceedings
On 10 April 2013, after I had indicated that I proposed to make orders dismissing the motion, the plaintiff indicated that, subject to further submissions and argument on the question of costs of the motion, and the proceedings generally, she wished to discontinue the proceedings.
Accordingly, I ordered that leave should be granted to the plaintiff upon her application pursuant to r 12.1 of the UCPR to discontinue the proceedings, and I ordered that a Notice of Discontinuance be filed on or before 4pm 17 April 2013.
I made further orders with respect to ensuring that an argument on the question of costs of the proceedings, and of the motion, could be heard and disposed of promptly. That argument remains outstanding. It is to be heard on 2 May 2013.
I also made orders on the request of the defendants dismissing cross-claims between them. Accordingly, the substantive proceedings are at an end. What remains to be dealt with is a question of costs.
However, for the reasons which I have now set out, all that is now required is to formalise the orders which I made on 10 April 2013. For the sake of clarity, I include these formal orders below:
(1) Order that the Notice of Motion filed by the plaintiff on 19 March 2013 be dismissed.
(2) Reserve any question of costs of the motion.
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Decision last updated: 02 May 2013
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