Dodge v Snell

[2010] TASSC 12

[2010] TASSC 12

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Dodge v Snell [2010] TASSC 12

PARTIES:  DODGE, Kevin John
  v
  SNELL, Simon

FILE NO/S:  430/2007
DELIVERED ON:  11 March 2010
DELIVERED AT:  Hobart
HEARING DATE:  10 March 2010
JUDGMENT OF:  Wood J
Edited edition of reasons for judgment delivered 11 March 2010
CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Amendment introducing statutory defence – Exercise of discretion.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, referred to.
Supreme Court Rules 2000 (Tas), r427.
Aust Dig Procedure [276]

Torts – Law of torts generally – Negligence – Miscellaneous defences – Other defences – "Dangerous recreational activity".

Civil Liability Act 2002 (Tas), s20.
Aust Dig Procedure [75]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read, R J Phillips
             Defendant:  P L Jackson
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:  Wallace, Wilkinson & Webster

Judgment Number:  [2010] TASSC 12
Number of paragraphs:  21

Serial No 12/2010
File No 430/2007

KEVIN JOHN DODGE v SIMON SNELL

REASONS FOR JUDGMENT  WOOD J

11 March 2010

1. This is an application for leave to amend the defence before trial pursuant to r427(1) of the Supreme Court Rules.

1. The statement of claim asserts as follows.  The plaintiff was a jockey participating in a horse race at the Elwick Race Course on 28 January 2007. The defendant was a jockey participating in the same race.  The plaintiff suffered injury when the horse he was riding collided with another horse and fell.  The collision was caused by the defendant's negligence.  The particulars of negligence are as follows:

"The defendant was negligent in that he:

(a)       failed to keep a proper look out;

(b)rode his mount inwards when it [sic] insufficiently clear for Colonel Parker to enable the manoeuvre to be safely completed;

(c)       Failed to keep clear of Colonel Parker;

(d)Rode his mount inwards when insufficiently clear of Colonel Parker and when he knew or reasonably [sic] to have known that in doing so he was exposing other horses and riders to a risk of injury."

1. In the defence negligence is denied, contributory negligence is pleaded and so is the defence of voluntary assumption of risk, volenti non fit injuria.  The facts asserted in relation to the defence of volenti are as follows:

"13In the knowledge and full appreciation as to the dangerous nature of being a professional jockey participating in a horse race, the Plaintiff voluntarily accepted the risks associated with riding in the said race and is therefore prohibited from claiming damages in respect of the incident.  The Defendant relies on the doctrine of Volenti Non Fit Injuria."

1. The defendant seeks leave to amend the defence to plead a statutory defence under the Civil Liability Act 2002 ("the Act"), s20.

Submissions

1. Counsel for the plaintiff, Mr Phillips, opposes the amendment, submitting that the proposed amendments should not be allowed on three grounds:

1    The application is very late and has the potential to delay the trial.  In accordance with modern principles of case management, the amendment should not be allowed.  This submission relies on the recent High Court case of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

2 The amendment is futile. An essential element of this statutory defence is that the plaintiff was involved in a recreational activity as defined. On no construction of the Act could it be said that two jockeys in a competitive horse race for reward could be said to be involved in a recreational activity. This argument involves a legal question of the meaning of "recreational activity" in the Act.

3 The amendment sought to be made contains such fundamental flaws that it ought not be allowed. It is evident from the pleadings and an affidavit of the plaintiff, Mr Dodge, that he was not pursuing an activity for leisure or recreation. The Act, s20, could not apply for this reason. Again, this argument involves a question of statutory construction.

Discussion

1. The first argument raises potential prejudice arising from an adjournment of the trial and the public interest in the timely disposition of Court business and case management considerations.  Counsel for the respondent submitted that they may need to call evidence of the nature of the racing industry and the question of whether it involves a recreational activity.  If this was the case, witnesses may not be available and there may not be time to obtain proofs of evidence.  He also raised the possibility of the desirability of an amendment to the statement of claim and/or the filing of a reply.  Mr Phillips handed up a request for further and better particulars that would follow an order granting leave to amend the defence.

1. In this context it is noted that counsel for the defendant indicated that he would not be calling  additional witnesses, although some additional evidence may be led if the application is granted. 

1. The application is obviously made very late in the proceedings.  It has occurred after the certificate of readiness has been signed.  The scheduled commencement date of the trial is five days away.  However, it seems to me based on the submissions, that at the highest, there is merely the potential for the trial to be delayed in order to seek evidence on the new issue. It is by no means a certainty that this will result from the granting of leave to amend.  

1. The additional evidence that might be sought by the plaintiff would relate to matters such as the nature of the racing industry, the plaintiff's participation in the race as a professional and not an amateur jockey, the participation of others as professional jockeys, and some details regarding the race.  It seems likely that most, if not all, of the additional evidence that would be led on behalf of the plaintiff would be led from existing witnesses.  If any additional witnesses are required it is not evident at this stage that there will be difficulties in locating them.  I observe that given the nature of the evidence that may be sought from any additional witnesses, it does not appear to be the kind of evidence that lies within the exclusive knowledge or experience of a limited number of racing officials or experts within the industry. 

1. If it transpires that the plaintiff faces a genuine difficulty in calling a witness then that should be apparent before the scheduled starting time of the trial.  There may be a number of practical solutions to any such difficulty other than the drastic step of adjourning the trial.  It appears that any relevant evidence on the new defence is very unlikely to be contentious.   Such difficulties can be addressed, if they arise, after giving counsel the opportunity to be heard. 

1. I should have regard to the advanced stage of the litigation and any concerns of case management such as substantial delay and wasted costs.  Courts are now conscious of the effects of delay, not only upon the parties to the proceedings, but also upon the court and other litigants:  Aon Risk Services Australia Ltd v Australian National University (supra), pars111 - 112.  Furthermore, since Aon there is now no practice that amendments which are not necessary for the purpose of determining the real questions in controversy will generally be allowed subject to payment of costs by way of compensation: Mikrazemi v Manns (2009) TASSC 91, par14.

1. Noting those considerations I consider that this is not a case where there are case management concerns that weigh against granting the application.  The trial should be able to proceed as scheduled with no tangible prejudice resulting to the plaintiff. 

1. As for the pleadings, I am unpersuaded on the submissions that I have received that an amendment to the statement of claim will be necessary or appropriate. Submissions for the plaintiff have raised the filing of a reply as a possible development. It has not been suggested that this step is necessary or desirable in order to avoid any prejudice resulting to the plaintiff (see r228(2)). There will be a request for further and better particulars in the form provided to me and dated 10 March 2010, resulting from the granting of the application. This request dated 10 March 2010 is largely an enquiry about matters that are already in controversy between the parties by virtue of s16 of the Act, an evidentiary provision that applies where the defence of volenti has been pleaded. There are three requests for particulars and only one relates exclusively to the new statutory defence concerning the notion of a "significant degree of physical harm". The other two apply to s16 of the Act, as well as the new statutory defence. I note that it seems that the defendant should be able to comply with the request for particulars before the trial is due to start.

1. I will deal with the plaintiff's remaining objections together – that the application to amend is fatally flawed and is futile. In essence, the submission advanced by Mr Phillips is that if I accept his submission about the correct interpretation of the Act, ss19 and 20, then the statutory defence could not apply. His legal arguments include the following:

1 The definition of "recreational activity" in s19 contains two essential elements and the two parts to the definition are conjunctive. Comments by Ipp J in Belnar Pty Ltd v Irwin [2009] NSWCA 46 are relied on to support this argument.

2    Even if the activity of horse racing qualifies as a recreational activity, there remains the question of whether this categorisation attaches to the plaintiff's participation in the activity.  Was the activity, as it was engaged in by the plaintiff, a recreational activity?  The nature of the participation of the injured person colours the correct categorisation of the activity. 

1. On a preliminary consideration of these submissions, in the short time I have had available, they seem to raise worthwhile legal questions. They may involve a consideration of the purpose of the Act and the mischief the legislation was intended to address: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 23, and CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. In my view the submissions warrant careful consideration and ought to receive that consideration by the trial judge. The submissions I have received have been very helpful, but not as comprehensive as they would be at trial. In particular, counsel for the defendant has had limited time to research and consider the issues raised. Given the similarities between the Act and legislation in other jurisdictions, there may be other cases that counsel have not referred to that may assist. One example of such a case that counsel may want the opportunity to consider is Fallas v Mourlas [2006] NSWCA 32.

1. It is not a case where it is evident at this interlocutory stage that the proposed pleading is futile because it is misconceived or without legal foundation. Furthermore, there are real and substantive legal questions that arise regarding the ambit of the Act and the application to this case. Those questions should be considered in the ordinary course at the trial: The Commonwealth v Verwayen (1990) 170 CLR per Dawson J at 456.  It seems to me that if it were not for the lateness of the application for leave to amend there would be no suggestion of the Court resolving these legal questions at this stage.  

1. In considering whether leave should be granted to amend the defence I note that the proposed amendment raises a statutory defence that is close in nature to the current pleadings as they relate to the common law defence of volenti. In simplistic terms, the pleadings already assert the defendant was not liable due to the nature of the activity engaged in by the plaintiff. This is the essence of the new pleading with a number of refinements reflecting the elements of the Act, s20.

1. To elaborate further I note the following matters. The plaintiff already faced an assertion that the activity he was involved in as a professional jockey was dangerous.  This is very close to the new pleading that the activity involved a significant degree of risk of physical harm.  Further, the plaintiff was already on notice that the defendant asserted the plaintiff knew, and had full appreciation of, the dangerous nature of being a professional jockey participating in a horse race.  This assertion is close to the new pleading that the risk would have been obvious to a reasonable person in the plaintiff's position. 

1. As a final consideration, I note this is not a case that cries out for an explanation for the late application to amend pleadings.  The absence of an affidavit setting out the reasons is not significant.  As indicated by me, if it was significant as an issue potentially affecting the outcome of this ruling I would have granted leave to file such an affidavit. 

Conclusion

1. In conclusion, I consider that the proposed amendment is closely related to the pleading of the defence of volenti in the existing defence.  Despite the very late stage of the application to amend the defence, and the necessity to hastily gather some new evidence, I do not consider that there will be any tangible prejudice to the plaintiff in the circumstances of this case resulting from the amendment. I am conscious of the range of possible concerns that have been identified that could arise in meeting the new defence, but it seems to me highly unlikely that any of them will materialise.  In short, the plaintiff is reasonably well placed to meet the new defence.  The application should be granted.

Order

1. Leave is granted to the defendant to amend the defence in terms of pars14 - 17 of the draft amended defence dated 26 February 2010.  The proposed order regarding costs set out in par2 of the interlocutory application dated 26 February 2010 seems appropriate, but I will hear from counsel first before making any order as to costs.