Dekort v Closter (Ruling)
[2010] VCC 1464
•15 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-09-05189
| DONNA DEKORT | Plaintiff |
| v | |
| DENISE JOY CLOSTER | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 and 15 October 2010 |
| DATE OF RULING: | 15 October 2010 |
| CASE MAY BE CITED AS: | Dekort v Closter (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1464 |
RULING
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Catchwords: Late application to amend defence to plead an additional particular of contributory negligence – application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell | Robinson Gill |
| For the Defendant | Mr R W Dyer | Wotton & Kearney |
| HIS HONOUR: |
1 In this proceeding, the plaintiff claims damages for personal injury suffered on 3 June 2008 when she slipped and fell down a staircase at premises at 444 Burwood Highway, Wantirna (“the premises”). At the time the premises were owned by the defendant.
2 By her Amended Statement of Claim, the plaintiff pleaded breach of occupier’s duty pursuant to s.14B(3) of the Wrongs Act 1958, and breach of general principles of negligence. In particular, as the evidence progressed, the particulars of negligence relied on were:
• failing to ensure there was an adequate slip-resistant surface on the stairs; • failing to ensure there was sufficient lighting in the vicinity of the stairs. 3 By her Defence, the defendant, inter alia, denied negligence or breach of occupier’s duty and further pleaded contributory negligence. The particulars were:
(a) failing to keep any or any proper lookout; (b) failing to look where she was walking; (c) failing to concentrate on the task at hand; (d) failing to take reasonable care for her own safety; (e) failing to pay any or any sufficient attention so as to avoid slipping; (f) failing to watch her step or where she was placing her feet. 4 The trial commenced on 14 October 2010. I was advised by the parties that quantum had been agreed and the only outstanding matter was as to liability. Further, the proceeding was originally brought against a second defendant, a tenant at the premises. That part of the claim was resolved and dismissed. Evidence was given by the plaintiff as to the occurrence of the incident and the state of the premises at the time, and then by an expert engineer, Mr Dohrman, and his report of 21 September 2010 tendered into evidence.
5 After the conclusion of the evidence of those two witnesses, Mr Purcell, on behalf of the plaintiff,1 raised the matter of questions put by Mr Dyer in the course of cross-examination of an alleged failure by the plaintiff to use a handrail which was located to the left side of the staircase when the plaintiff descended the area (“the handrail”). He said the matter had not been pleaded. At the time, Mr Dyer submitted that the issue was covered by the more general pleadings contained in paragraphs (c), (d) and (e) of the particulars of contributory negligence. In my view, those general allegations were not sufficient to cover the specific allegation that the plaintiff had failed to use the handrail.
6 The question of the handrail was raised a number of times during the course of the evidence of the plaintiff and Mr Dohrman. In cross-examination, the plaintiff was asked:2
“Q: If you had been holding that handrail you wouldn’t have fallen,
would you?---A: [I] may not have fallen, but I might have still twisted the ankle.”
[sic]
7 In re-examination, Mr Purcell asked the plaintiff:3
“Q: Would the handrail have prevented the initial slipping of your
foot?---A: No. Q: Would it have prevented the initial twisting of your foot?--- A: No.”
1
T(Transcript) 53 L16
T 30 L11
T 31 L4
8 The handrail was mentioned in passing, in the evidence of Mr Dohrman.4 9
As a result of the discussion on 14 October 2010, application was made by Mr Dyer, on behalf of the defendant, to file an amended defence on 15 October 2010. That document contained an additional particular of contributory negligence:
“(g) failing to use the handrail at the premises.”
10 The application was opposed on behalf of the plaintiff.
11 Mr Dyer made the following submissions:
•
By her Answers to Interrogatories sworn 1 September 2010 (Interrogatory 6(g)), the plaintiff stated:
“There was a handrail on the wall to my right and I cannot recall
whether there was one to my left.”5
It was not until that answer was given that the defendant knew of the failure of the plaintiff to use the handrail.
• The matter of the handrail was raised and the subject of cross- examination both in the course of the plaintiff’s evidence, and that of Mr Dohrman, without objection. • If there was any prejudice to the plaintiff, it could be easily cured by recalling the plaintiff or Mr Dohrman. • The matter of the plaintiff’s failure to grasp the handrail as she descended the stairs was a significant issue for the defendant, and one upon which she sought to rely in the allegation of contributory negligence. 12 On behalf of the plaintiff, Mr Purcell responded:
1
T 45, L 1
In fact the handrail was to the plaintiff’s left as she descended the stairs.
•
There was a significant prejudice to the plaintiff in allowing the proposed amendment.
•
Notwithstanding the fact that the matter had been raised as a particular of contributory negligence in the Defence of the second defendant, the plaintiff had constructed its case against the remaining defendant in the knowledge there was no plea of contributory negligence as to the handrail. Mr Purcell stated that he would have presented the case in a different manner and questioned the plaintiff in a different way had that been a particular of contributory negligence.
•
He would have questioned Mr Dohrman further specifically on the matter and, in particular, as to what effect, if any, holding onto a handrail would have had upon the plaintiff’s slip and fall.
13 In my view, the plaintiff’s Answers to Interrogatories provide no adequate reason as to why the defendant failed to include a pleading as to the handrail in its particulars. The defendant is the owner of the premises and well knew the layout. The presence of the handrail would have been immediately obvious to her, and any investigator looking at the premises after the issue of proceedings. It must have been obvious that the question of whether or not the plaintiff had utilised the handrail would be an issue. Even accepting the defendant was not aware of the plaintiff’s failure to use the handrail until after her answers to interrogatories were sworn and served in early September 2010, there was no notice given of a proposed amendment. There was no further nor adequate explanation given on behalf of the defendant as to why the matter had not been pleaded.
14 In Tinworth v W V Management Pty Ltd & Anor.,6 Forrest J considered an application to amend a defence on the first day of a jury trial to plead new
1
[2009] VSC 552
matters, including:
(a) a revised plea of contributory negligence; (b) an allegation that the plaintiff had voluntarily assumed the risk of contracting the disease the subject of the proceeding, as part of his employment with a defendant; (c) that by reason of s.134AB(12) of the Accident Compensation Act, the plaintiff was precluded from making a claim for damages for pecuniary loss. 15 His Honour refused the application. He stated that, consistent with the principles established by Aon Risk Services Australia Ltd v Australian National University,7 the application to amend the defence was far too late. His Honour referred to those principles, in particular:8
“(a) Courts must now consider the wider public interest and the efficient use of limited court resources when deciding whether to grant an application to amend a pleading. (b) Parties do not have an entitlement to raise any arguable case at any stage of proceedings, subject only to payment of costs. (c) Amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system.”
16 In particular, his Honour referred to the judgment of the Court:9
“A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.
… .”
(emphasis added)
1
[2009] HCA 27
Aon at paragraph 27
per Gummow, Hayne, Crennan, Kieffel and Bell JJ at paragraph 111-113
17
In considering whether or not to allow the amendment in Tinworth, his Honour said:10
“Fourth, the lack of any explanation whatsoever for failing to make the application at any of the hearings before Masters or Associate Justices of this court, or at the callover, is, simply put, remarkable. Aon makes it clear that where a party seeks an indulgence in the form of a late amendment an explanation should be proffered for its failure to make the application in a timely fashion and as provided for by the Rules of Court. Not a shred of evidence has been led to explain why this application was made on the first day of the scheduled jury trial. The provision (or absence) of a satisfactory explanation is relevant in determining whether to grant such an application.”
18 His Honour went on to determine that even if he was to allow the proposed amendments, they created insurmountable difficulties for the defendants. I should state that the application to make a revised plea for contributory negligence in Tinworth was not part of his Honour’s ruling as that aspect of the amendment was not opposed.
19 In my view, it is clear from the principles of Aon and Tinworth that courts will not, as a matter of course, grant leave to parties to amend pleadings, particularly when a trial is advanced. There should be:
• a proper explanation as to why the amendment had not been made at an earlier time; • a careful consideration of whether there is any prejudice to the opposing party in allowing the amendment. Such prejudice may not be major, but rather may be something as simple as counsel, in the busy course of the preparation and presentation of a trial, being expected to turn his or her mind from the issues under consideration to a different and separate issue which may require additional evidence, a revised view of liability and a different assessment of the structure of his or her case. Any such matter may lead to forensic disadvantage. 1
at paragraph 36
•
a reluctance to allow an amendment which may result in delay to the timely conclusion of the trial.
20 In my view, there are three principal reasons why the amendment sought should not be allowed:
(a) there has been no adequate explanation as to why the pleading was not amended at an earlier time. Any proceeding in this Court is subject to directional hearings and there has been ample opportunity for the appropriate amendment to be made. Even accepting the provision of the plaintiff’s Answers to Interrogatories one month prior to trial, there ought to have been notice given of the amendment at that stage. This would have allowed the plaintiff to prepare her case in that knowledge. (b) I accept the submission of Mr Purcell that there is a forensic disadvantage to his client in allowing the amendment. He has prepared and structured his client’s case in a certain manner and questioned the plaintiff and Mr Dohrman accordingly. While the matter of the handrail has been raised, I accept that he would have structured his examination of both witnesses differently had the pleading been added. (c) It is possible that both the plaintiff and Mr Dohrman could be recalled and specifically questioned on the issue of the handrail. That would, of itself, lead to some delay. However, were Mr Dohrman to address his mind to the issue of the handrail, it may well require him to undertake some further calculations of a scientific nature as to the effect of the likelihood of the plaintiff’s foot slipping upon the stair were she to have taken some weight off by leaning her left hand upon the handrail. It is difficult to assess precisely what additional evidence Mr Dohrman would need to give. 21 In all the circumstances, I am of the view it is not appropriate to permit the amendment.
22 The application to file an amended defence is refused.
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