De Winkel v Hills Limited
[2017] VCC 28
•1 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-04361
| PAUL DE WINKEL | Plaintiff |
| v | |
| HILLS LIMITED | First Defendant |
| TOYOTA MATERIAL HANDLING AUSTRALIA PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2017 | |
DATE OF DECISION: | 1 February 2017 | |
CASE MAY BE CITED AS: | De Winkel v Hills Limited and Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 28 | |
REASONS FOR DECISION
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Subject:ACCIDENT COMPENSATION
Catchwords: Application to amend Statement of Claim
Legislation Cited: Civil Procedure Act 2010, County Court Civil Procedure Rules 2008
Cases Cited:Ultra Thoroughbred Racing v Those Certain Underwriters & Ors (Ruling) [2011] VSC 370, Northern Health v Kuipers [2015] VSCA 172
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC with Ms M Lang | Zaparas Lawyers |
| For the First Defendant | Ms R N Annesley QC with Mr G Caldwell | Lander & Rogers |
| For the Second Defendant | Mr P Y Rattray QC with Ms E Hill | Barry Nilsson Lawyers |
HIS HONOUR:
1 On 24 January 2017 I granted leave to the plaintiff in this proceeding to file and serve an amended statement of claim in the terms relied upon by Mr Clements QC during the course of the application. The power to grant leave resides in Order 36 of the County Court Civil Procedure Rules 2008.
2 The following are my reasons for granting leave -
3 The matter was first listed for trial on 21 January 2016. That hearing date was vacated by his Honour Judge O’Neill on 8 February 2016 on the basis of minutes of consent orders dated 17 December 2015. The matter was relisted for trial on 24 January 2017 and his Honour made orders that all expert reports be served by 29 February 2016.
4 On 4 March 2016 the second defendant filed and served an Order 44 statement of expert evidence containing a report of Mr John Lambert, a forensic engineer. In that report Mr Lambert expressed the following opinion:
“As noted above and considering all the available information it is my view that the accident was not caused by a failure of the forklift. My expert opinion is that the injury to Paul de Winkel was the result of him:
· choosing to travel with the forks extended
· carrying a load that was likely to have had a rated distance greater than 600 millimetres. This raises the possibility that the forklift was overloaded, and
· doing so on a highly polished floor.
The end result was low friction between the braked wheel and the little weight on that wheel was that the stopping distance was much further than would be expected with an empty forklift on a good surface.”[1]
[1]Paragraphs 31–32 of the report
5 An amended report also expressing this opinion was filed and served on 20 January 2017.
6 In the course of the application Mr Clements also referred to photographic evidence disclosing that following the event the subject of the plaintiff’s claim, the first defendant installed a barrier at the site that the forklift driven by the plaintiff collided with a wall in the premises. Finally, Mr Clements referred to evidence that the forklift was operated by the plaintiff whilst fault messages were appearing in its controls, to the knowledge of the first and second defendant.
7 The proposed amendments to the statement of claim particularise these three factual allegations, and it is clear that the statement of claim as it stands does not particularise the allegations either at all or with sufficient precision.
8 The application by the plaintiff for leave to amend the statement of claim was consented to by the second defendant and opposed by the first defendant. In support of the application for the amendments, Mr Clements submitted:
(i) The proposed amendments were significant in the plaintiff’s case;
(ii) Refusing the application would prevent the plaintiff from relying on an important limb in his case in proof of negligence against both of the defendants;
(iii) Whilst he could not offer any explanation as to why the application for leave to amend was not made at a earlier time, this failure should not constrain the plaintiff in the proof of his case;
(iv) Any prejudice suffered by the first defendant would not be irreparable, and the plaintiff did not oppose an adjournment of the proceeding; and
(v) The plaintiff’s claim for damages is a substantial one.
9 Ms Annesley QC, appearing on behalf of the first defendant, submitted as follows:
(i) Notice of the application was first given to the parties at 2pm on 23 January 2017; that is, on the afternoon before the trial was due to commence;
(ii) The expert evidence relied upon in respect of the condition of the factory floor may properly be described as weak;
(iii) The events in question are now in excess of six years old, and the first defendant no longer occupies the relevant premises; and
(iv) The court ought not grant leave in circumstances where the failure to seek leave at an earlier stage in the proceeding is unexplained.
10 In deciding whether or not to grant leave, I am required to have regard and give effect to the relevant provisions of the Civil Procedure Act 2010, and in that context Mr Clements referred to the decision of the Supreme Court of Victoria in Ultra Thoroughbred Racing v Those Certain Underwriters & Ors (Ruling) [2011] VSC 370 and Court of Appeal in Northern Health v Kuipers [2015] VSCA 172.
11 Having considered the submissions by both parties and the relevant principles, I am satisfied that leave should be granted to the plaintiff to amend the statement of claim in the terms proposed. The amendments do not disclose a new cause of action; they are particulars of negligence which will be central to the jury’s proper examination of the evidence and the issues in this case. Accordingly, the amendments facilitate the just determination of the proceedings, and in my opinion will not unduly add to the complexity or length of the proceeding. The amendments will assist in the identification of the real issues in dispute in the proceeding, and in my opinion any potential prejudice to the first defendant may be addressed by an adjournment of the proceeding to enable the relevant investigations to be carried out and evidence obtained.
12 The evidentiary material relied upon by the plaintiff in support of the application has been in the possession of his legal advisers since approximately March 2016. Mr Clements offered no explanation as to the lateness of the application, or the circumstances in which notice was not provided of it to the first defendant and the second defendant until the afternoon before the matter was listed for trial. In my opinion in these circumstances it is appropriate that the costs thrown away by the first defendant and the second defendant be met by the plaintiff or by his legal representatives. I will make an order reserving the final form of the order in respect of costs and a further order requiring the legal representatives of the plaintiff to file and serve such submissions and affidavit material relevant to the question as to who ought to meet the costs thrown away of the first defendant and second defendant.
13 The directions hearing in this matter will be listed before me and I will hear submissions if necessary and rule on the questions of costs on that day.
14 I will otherwise make the orders proposed by the parties in the terms provided.
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