Daliya Farrukh v Linkbond (Asia) Ltd trading as the Grace Hotel

[2006] NSWDC 46

CITATION:	Daliya Farrukh v Linkbond (Asia) Ltd trading as The Grace Hotel [2006] NSWDC 46
HEARING DATE(S):	27/09/2006
EX TEMPORE JUDGMENT DATE:	09/27/2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Leave to plaintiff to tender report of Mr Manser dated 27 February 2006
CATCHWORDS:	Workplace Injury Management and Workers Compensation Act 1998, s.318 - s.315 considered
LEGISLATION CITED:	Workplace Injury Management and Workers Compensation Act 1998
PARTIES:	Daliya Farrukh (Plaintiff) Linkbond (Asia) Ltd t/as The Grace Hotel (Defendant)
FILE NUMBER(S):	251/06
COUNSEL:	Mr R. Harrington (Plaintiff) Mr P. Russell (Defendant)

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff for leave to tender a report of Mr Ray Manser, a Fire Safety Engineering Consultant, whose report bears date 27 February 2006. The reason that the plaintiff needs leave to tender the report arises by reason of s 318 of the Workplace Injury Management and Workers Compensation Act 1998.

2 Section 315 of that Act makes a requirement that before commencing proceedings in court in an action for damages a plaintiff has to serve upon his or her employer a Pre-Filing Statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.

3 Section 316 requires the employer, the putative defendant, to serve a Pre-Filing Statement within 28 days after the Pre-Filing Statement of the putative plaintiff has been served upon the putative defendant.

4 Section 318(1)(d) provides that a party to proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a Pre-Filing Statement served under the relevant division of the WIM Act except with the leave of the Court. Subsection 2 provides this:

“The court is not to grant leave under this section unless satisfied that:

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party’s case.”

5 The defendant opposes leave being granted on the basis that the report in question seeks to establish a “completely different” claim to the one initially put forward by the plaintiff.

6 According to the pleadings the plaintiff was required in the course of her employment to place soiled linen in a laundry chute in the defendant’s hotel. The plaintiff alleges an injury to her whilst placing linen in a laundry chute on 9 October 2001. Paragraph 9 of the statement of claim is currently in these terms:

“The plaintiff in order to carry out the activity referred to in the above paragraph opened the door of the chute and was placing the linen into the chute when suddenly and without warning linen from the floors above passed through the chute creating a vacuum as a result of which the door swung closed crushing her right upper limb between the chute and the door.”

The plaintiff has foreshadowed an application to amend that paragraph of the statement of claim by deleting the matter “creating a vacuum” but I shall rule separately on that application.

7 Two of the particulars of negligence are these:

“(e) In failing to provide a system whereby the chute door would be secured when linen or other material was being placed in the chute.

(f) In failing to have a latch on the chute door to ensure that it stayed in the position when linen or other material was being placed in the chute.”

8 The plaintiff in her Pre-Filing Statement served no expert report relating to liability. However paragraph 7 of the pre-filing statement contains this matter:

“Documents not available at the time of service of the Pre-Filing Statement and which are intended to be obtained prior to the hearing:

(a) An expert’s report which would follow a view of the accident scene by the plaintiff and her legal advisors.

(b) Updated medical reports.”

The plaintiff clearly foreshadowed that she might obtain an expert’s report.

9 Served by the defendant with its Pre-Filing Statement which bears date 29 September 2005 is a report of Mr HC Cowling, an Engineering Consultant. Mr Cowling’s report bears date 28 September 2005. In other words it was generated the day before the defendant served the defendant’s Pre-Filing Statement.

10 On page 11 of the expert’s report the following is stated:

“In my opinion, a safe work system could not permit the fire doors to the linen chute to be secured in the open position. This is for two principal reasons.


Firstly, because fire doors must not be held in the open position within any building, because of the hazard created in the event of fire and smoke.

Secondly, because of the danger of falling into the chute presented by a door secured in the open position [.]

For these reasons, I believe that the door should never be permitted to be secured in the open position at any time. To do otherwise would contravene the Fire Regulations.”

In other words the expert rebutted the suggestion that there was a means of securing the chute door in the open position and rebutted the suggestion that there could be a latch on the chute door to hold it in the open position. The point that Mr Cowling made was that any such mechanism to keep the chute open could be inadvertently left in position indefinitely thus allowing the Fire Regulations to be infringed.

11 In those circumstances the plaintiff sought the advice of Mr Manser, the Fire Safety Engineering Consultant, which advice is contained in his report of 27 February 2006. There is no suggestion that Mr Manser’s report has not been served in accordance with the Rules.

12 There is no submission put that the defendant has not had an adequate opportunity of dealing with Mr Manser’s opinion or in any way seeking to rebut his opinion. Essentially the opinion of Mr Manser is that the laundry chute doors could have an automatic closing operation initiated by the activation of a smoke detector installed in accordance with certain provisions of the Australian Safety Standards. These are commonly known as magnetic door holders and the magnetic force would be removed if the smoke alarm were sounded causing the door to automatically close. These form of doors are often found in public places in this State such as hospitals. In other words, the plaintiff has sought and obtained an opinion which rebuts the opinion of Mr Cowling.

13 The first thing to note about Mr Manser’s opinion was that it was not actually available to the plaintiff at the time of the Pre-Filing Statement. The plaintiff no doubt laboured under the same misapprehension as I did when at the commencement of this hearing I asked if liability had been admitted and was told no it had not been and I suggested the matter seemed to me to be “res ipsa loquitur”. Mr Harrington was keen to disabuse me of that view and pointed out the problem with latches and the Fire Regulations. I recount that matter because it appeared to me, as a layman, that there should be some mechanism of keeping chute doors, in fact any door, open whilst work was being done in its vicinity. That appeared to me to be a matter of commonsense. The plaintiff appears to have approached the matter in exactly that manner. However when faced with the opinion of Mr Cowling, the plaintiff sought an opinion in reply which opinion was given by Mr Manser. The question is was the opinion of Mr Manser “not reasonably available” to the plaintiff. One could not argue that it was “not reasonably available” if it were actually available. Here it was not actually available.

14 The next factor to bear in mind are questions of reasonableness. A plaintiff seeking to recover workplace injury damages labours under many burdens. Those burdens are in the nature of obstacles put in the way to recovering damages which have been in recent times severely limited by Parliament. For example a plaintiff must establish firstly that he or she has a whole person impairment of fifteen percent or more. It has been stated that the plaintiff was not able to commence proceedings until 6 June 2005. It would be foolhardy for any putative plaintiff to prepare a Common Law action prior to knowing that he or she was entitled to bring such action. In other words it is necessary for a plaintiff’s medical condition to be stable, permanent and capable of assessment and then for the extent of the assessment to be fifteen percent of the whole person. That requires a ruling by an approved medical specialist under the Workers Compensation regime. It would be foolhardy, prior to reaching that stage, to incur the costs of preparing a Common Law action.

15 The next thing to note is that costs these days are severely limited, again, a disincentive to obtaining things such as expert’s report on liability unless, of course, it is clear that it is absolutely necessary that they be obtained.

16 In the circumstance of this case I believe that the report was not reasonably available. Had Mr Cowling in his report pointed out that there was a method of keeping the door open which was essentially only a temporary method because it would not persist indefinitely and thus breach the Fire Regulations, the plaintiff herself would not have needed to obtain Mr Manser’s opinion. In other words essentially Mr Manser’s opinion is in reply to the defendant’s case rather than in the establishment of her own case.

17 The next objection raised by the defendant is that this is a “completely new” case. With the utmost respect I cannot accede to that submission. Firstly it is clear that the mechanism of the injury was the sudden closing of this door on the plaintiff’s arm. The allegation of the plaintiff, essentially, is there should have been some system of work or some mechanical aid which would keep the door open. That is clearly pleaded in particular of negligence numbered (e) and latches more specifically pleaded in particular of negligence numbered (f).

18 The defendant submitted that this magnetically controlled device for keeping open the door was not a “latch”. However English words do not have a permanently fixed and narrow meaning. When one goes to the definition of ‘latch’ in the Shorter Oxford English Dictionary Fifth Edition, one notes this definition:

“1. A fastening for a door or gate, consisting of a small bar which falls or slides into a catch, and is lifted by a bar which falls or slides onto a catch, and is lifted by a lever, string, et cetera from outside. Now also (more fully night-latch) a small spring-loaded lock for an outer door, which catches when the door is closed and is worked from the outside by a key.

2. (a) A loop or noose for securing a thing; a snare. Also, a leather thong”

The entry goes on to give an obsolete meaning and a specialised meaning in electronics.

19 The actual definition of ‘latch’ is not the sort of mechanism that was here proposed, rather it was more of a hook and eye affair which would have held back the door. Whilst what is pleaded as “latch” was not an actual latch as defined in the primary sense but rather a more generalised meaning of something that might hold the door open permanently. That such a meaning can be assigned to ‘latch’ is clear from the etymology. The noun ‘latch’ is derived probably from the verb ‘latch’. The first meaning of ‘latch’ as a transitive verb is to take hold of, grasp, seize, especially with a hand or claws; to clasp, embrace and, figuratively, to grasp with the mind or comprehend. It can also mean to put or strike swiftly. Another transitive meaning of the verb ‘to latch’ is to intercept the fall of or catch something or retrieve something in a receptacle. Most of the meanings of the verb ‘latch’ do not indicate some continuing or permanent sense but rather some temporary function. What was being pleaded in my view was not a latch in the narrow sense but some mechanism which would hold the door open.

20 The magnetic door holder referred to by Mr Manser in his report is quite capable of being grabbed or grasped or latched onto under the meaning of ‘latch’. Furthermore ‘latch’ is not specifically referred to in particular of negligence numbered (e) and clearly the mechanism falls within that. In my view this is not a new case. It is just a new way of looking at the one case which was the mechanism of permitting the door to close striking the plaintiff’s arm when she was attempting to do her work at the defendant’s hotel.

21 Section 318(2)(b) also requires me to consider whether failure to grant the leave would substantially prejudice the party’s case. In the current matter to refuse leave to the plaintiff to rely on the opinion of Mr Manser would cause actual prejudice to the plaintiff’s case and may lead to its complete defeat.

22 Accordingly, the matter required in s 318(2) has been satisfied and furthermore I reject the submission put on behalf of the defendant that this in fact seeks to present some whole new case.

23 I accordingly grant leave to the plaintiff to tender the report of Mr Manser of 27 February 2006 which is MFI 3 at the current time.

**********