Emerson v Woolworths Ltd
[2016] WADC 118
•8 AUGUST 2016
EMERSON -v- WOOLWORTHS LTD [2016] WADC 118
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 118 | |
| Case No: | CIV:622/2016 | 22 JULY 2016 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 8/08/16 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Paragraphs 6 - 9 be struck out | ||
| PDF Version |
| Parties: | TANIA EMERSON WOOLWORTHS LTD FRUTEX AUSTRALIA PTY LTD |
Catchwords: | Application to strike out statement of claim |
Legislation: | Rules of the Supreme Court 1971 (WA) O 20 r 19 |
Case References: | Barclay Mowlem Construction Ltd v Dampier Port Authority and Anor [2006] WAR 82 Donoghue v Stevenson (1932) AC 562 Glendinning v Cuzens [2009] WASCA 21 Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Kidd v Artus t/a Downings Legal [2013 WASC 264 Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WOOLWORTHS LTD
First Defendant
FRUTEX AUSTRALIA PTY LTD
Second Defendant
Catchwords:
Application to strike out statement of claim
Legislation:
Rules of the Supreme Court 1971 (WA) O 20 r 19
Result:
Paragraphs 6 - 9 be struck out
Representation:
Counsel:
Plaintiff : Mr N Marsh
First Defendant : Ms R Slater
Second Defendant : Mr T Offer
Solicitors:
Plaintiff : Swan River Law
First Defendant : HBA Legal
Second Defendant : Vertannes Georgiou
Case(s) referred to in judgment(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] 33 WAR 82
Donoghue v Stevenson [1932] AC 562
Glendinning v Cuzens [2009] WASCA 21
Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Greenhill Associates (WA) Pty Ltd v Directories (Australia) Pty Ltd (WASC, Unreported, Library No 5493)
Kidd v Mitchell Frederick Artus t/as Downing Legal [2013] WASC 264
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
1 PRINCIPAL REGISTRAR MELVILLE: On 23 February 2016 the plaintiff issued a writ against Woolworths Ltd (Woolworths) and Frutex Australia Pty Ltd (Frutex). The writ was endorsed as follows:
The plaintiff claims damages as a result of personal injuries she sustained on 3 April 2013 when she bit into a hot cross bun purchased from the first defendant's store in Esperance which bun contained plant material, a stalk in its contents supplied by the second defendant and thereby occasioned personal injuries. Full particulars thereof have been rendered.
2 I say the writ was issued against Woolworths. In fact, at the time it was issued the first defendant was described as Woolworths (WA) Pty Ltd, with the writ subsequently being amended on 23 March 2016. Woolworths filed an unconditional memorandum of appearance on 29 March 2016. On 30 March 2016 Frutex filed an unconditional memorandum of appearance.
3 It would appear that the name of the first defendant was amended without leave first being obtained from the court as required by the Rules of the Supreme Court 1971 (RSC) O 21 r 5(3). The point is, if leave was required and not obtained it would appear the writ was irregular but the unconditional appearances cure this irregularity: Greenhill Associates (WA) Pty Ltd v Directories (Australia) Pty Ltd (WASC, Unreported, Library No 5493) , 8.
4 And so the matter proceeded, with the plaintiff filing a statement of claim on 3 May 2016. In its essence the statement of claim alleged that Woolworths was in the business of a grocer, Frutex was in the business of being a supplier/manufacturer to Woolworths, that on 5 April 2013 the plaintiff purchased six hot cross buns and on the following day, 6 April 2013, was injured when she bit into a hot cross bun and encountered a piece of wood approximately 3 cm in length.
5 The plaintiff then pleads as follows:
6. On 11 April 2014 the Plaintiff was advised by the First Defendant that the Second Defendant was the supplier/manufacturer of the hot cross buns.
7. The Plaintiff has experienced pain and suffering as a result of the Incident.
8. By reason of the Defendants negligence the Plaintiff has sustained continuous pain and discomfort to her teeth and gums along with further damage to her person.
9. The Plaintiff has experienced loss of enjoyment of life and significant inconvenience as a result of the Incident.
Particulars of Injuries
- (1) The Plaintiff has suffered the following Injuries:
(a) Nerve damage to teeth;
(b) Damage to crown;
(c) Pain and discomfort to teeth;
(d) Pain and discomfort to gums;
(e) Psychological trauma; and
(f) Other injuries;
(2) Full particulars of the Plaintiff's injuries will be provided prior to trial.
- (1) The Plaintiff underwent the following treatment:
(a) On 12 April 2013 the plaintiff attended at Dr Christopher Harris & Associates dental practice in Esperance;
(b) On 10 August 2015 the Plaintiff attended Dr Raymond Chan's office in Hobart, Tasmania for a consultation and periodontal analysis;
(c) On 13 August 2015 the Plaintiff attended Dr Raymond Chan's practice for advanced periodontal treatment;
(d) On 13 August 2015 the Plaintiff attended Dr Kevin McGregor's practice for minor occlusal adjustment;
(e) On 25 August 2015 the Plaintiff attended Dr Raymond Chan's practice for advanced periodontal treatment;
(f) Numerous x-rays; and
(g) Other treatment.
- (1) The Plaintiff has experienced;
(a) Pain and discomfort associated with the initial occurrence of the Incident giving rise to the said injuries;
(b) Pain and suffering by reason of the said injuries;
(c) Pain and suffering by reason of delayed treatment of the said injuries;
(d) Pain and suffering by reason of treatment of the said injuries;
(e) Psychological trauma;
(f) Pain and suffering by reason of the residual disabilities particulars of which are provided hereinafter.
- (1) The Plaintiff sustained the following residual disabilities:
(a) Nerve damage to teeth;
(b) Damage to crown on tooth;
(c) Pain and discomfort to teeth;
(d) Pain and discomfort to gums;
(e) Psychological trauma; and
(f) Other residual disabilities.
(2) Full particulars of the Plaintiff's residual disabilities will be provided prior to trial.
7 The plaintiff appears to have responded to this by filing an amended statement of claim on 27 May 2016 whereby par 9 was amended and particularised. The amended par 9 read:
The said injuries and loss and damage were occasioned to the Plaintiff by reason of the negligence and/or breach of Duty on the part of the Defendants, their servants or agents.
Particulars of Negligence
a. Manufacturing and selling the said Hot Cross Buns when they knew or ought to have known that the same or part thereof contained extraneous or deleterious substances the consumption of which would cause damage or injury to the consumer.
b. Failing to take any or adequate or necessary precautions in the manufacture of the said Hot Cross buns so as to prevent any injurious or deleterious substances being contained therein.
c. Permitting the said Hot Cross Buns to contain injurious or deleterious substances.
d. Failing to take any or any adequate measures whether by way of examination, inspection, test or otherwise to ensure that the said Hot Cross Buns manufactured or sold by them contained any injurious or deleterious substances.
e. The Plaintiff will further rely on the doctrine of Res Ipsa Loquiter.
8 I should also observe on that on 19 July 2016, three days before the hearing of the defendants’ applications, a minute of proposed amended writ of summons was also filed. However I have no application to amend the writ. By RSC O 59(1) an application of this nature must be brought in chambers either by motion or summons as appropriate and by the District Court Fees Regulations 2002, a fee is payable on the filing of such an application. By regulation 6 no application is to be filed, issued or dealt with unless the fee is paid or payment of the fees have been deferred.
The application to strike out
9 The application to strike-out the statement of claim is brought on 3 grounds, firstly on the basis that there is no reasonable cause of action disclosed, secondly because it will prejudice, embarrass or delay the fair trial of the action, and thirdly that it pleads a cause of action not encompassed by the indorsement on the writ.
Is a reasonable cause of action disclosed?
10 The defendants contend that there is no allegation in the statement of claim that Frutex manufactured or sold the food stuff and that the allegation in par 6 that the plaintiff was advised by the first defendant that the second defendant was the supplier/manufacturer of the hot cross buns is insufficient.
11 Criticisms were also made as to the particulars of negligence as found in the amended statement of claim.
12 The plaintiff's response to this is that the pleading in the statement of claim follows the precedent found at Form 404 Bullen and Leake, Jacobs Precedent of Pleadings, 12th ed.
13 The purpose of pleadings is to appraise the other parties to the proceedings of the case they have to meet, to enable an assessment of whether the pleadings give rise to an arguable cause of action or defence as the case may be, to define issues to be determined at trial and to enable the court to control the preparation of the case and the conduct of the trial. This means the plaintiff is required to plead the material facts that establish the foundation for the case being brought against a defendant and a defendant is required to either admit or deny those facts. If this is done as contemplated by the rules of pleading the facts that are not in dispute and those that are in dispute are neatly identified and the parties and the Court’s time and money can be concentrated on the real issues.
14 The Court of Appeal in Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 applied the following words of Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490, 517:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
15 More recently in addressing the adequacy of pleadings, the Chief Justice of the Supreme Court of Western Australia said in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] 33 WAR 82, 83:
It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
16 In the same case at page 84 he observed contemporary case management techniques have the effect of promoting full disclosure prior to trial and minimizing or eliminating the risk of surprise at trial and against that background. He said:
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
17 In determining whether the pleadings disclose a reasonable cause of action the pleadings must be read in their entirety. It serves no useful purpose to consider one paragraph in isolation to the rest of the document as the meaning of that paragraph is often influenced or flavoured by the surrounding words sentences and paragraphs of the documents. Having made these observations, it must nevertheless be acknowledged and accepted that pleadings are not a mere formality and they must satisfy the functions which are stated above. If it is accepted that the purpose of the pleading is to enable the court and the other parties to see whether or not there is in fact a cause of action, and if the pleadings are set out in such a manner that demonstrate there is, even if inelegantly drafted, there can be no criticism on this ground. Similarly, if the pleadings are set out in such a manner that they do not demonstrate any cause of action, there can be no criticism that statement of claim should rightly be struck out with all the consequences that follow.
18 The RSC O 20 sets out a number of rules designed to satisfy the requirements described in the cases above. For example, the rules caution against the pleading of evidence and require only the material facts of the cause of action to be pleaded. This facilitates a clear and concise understanding of the issues that have to be decided and ensures they are not obscured by irrelevancies. Similarly, where knowledge or a condition of the mind is relevant to the action, the rules require that particulars of the facts upon which the party relies to establish that knowledge or condition of the mind to be stated.
19 In my opinion on a reading of this statement of claim as a whole, it discloses a cause of action. At first glance the reading of the indorsement and the statement of claim brought immediately to mind the famous case of Donoghue v Stevenson [1932] AC 562, a seminal case in the establishment of the law of negligence of which every law student must be familiar! However indorsements to writs and statements of claim are not written purely for the benefit of the legal profession. They are also for the benefit of laypersons who are served with writs and who may be unrepresented in their defence of the allegations made against them. Even so, putting myself in the position of an unrepresented lay person, it is my view that such a person would have no difficulty in understanding from the indorsement to the writ and from the statement of claim, the nature of the claim being brought against him, whether there is an arguable cause of action and what are or will be the issues.
20 Ideally the plaintiff should have alleged that the second defendant was the supplier and/or manufacturer of the hot cross bun rather than pleading evidence, namely that the plaintiff was advised by the first defendant that the second defendant was the supplier/manufacturer of the hot cross buns. However, in my view the plaintiff's intent is made clear from that pleaded statement. She is alleging that, at least in the alternative, the hot cross buns were manufactured by Frutex and sold to Woolworths who on sold them to her. Further, it is clear having regard to par 8 the plaintiff is alleging that either Woolworths or Frutex or both were negligent in either the supply or manufacture or both of the hot cross bun and that as a result of this negligence she suffered injury which included nerve damage to her teeth, damage to a crown and psychological trauma. Further, the alleged negligence is further particularised in par 9 of the amended statement of claim. In my opinion those allegations are sufficient to establish a reasonable cause of action. It cannot be difficult for Woolworths or Frutex to file a defence denying it was the manufacturer of the hot cross buns, if that be the case, or to deny it was negligent in the manufacture thereof.
Will the pleadings prejudice, embarrass or delay the fair trial of this action?
21 This ground of objection is said to evoke a composite phrase. Its intent, more particularly, has been described in Kidd v Mitchell Frederick Artus t/as Downing Legal [2013] WASC 264 [26]:
Pleadings may be struck out on this ground 'because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general': see Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998).
22 In my opinion the pleadings are deficient in this regard. The statement of claim alleges that both defendants were negligent in the manufacturing and selling of the hot cross buns. However, it seems clear that only one of the defendants could have manufactured the hot cross buns. Insofar as two defendants could be said to have manufactured the hot cross buns it seems to me the pleading is either inherently inconsistent or, alternatively, to the extent both defendants did manufacture the hot cross buns, does not clearly alleged what each of the defendants did and how they did it and in what respects it could be said their respective parts in the manufacture and/or sale of the hot cross buns was negligent. Further, with the greatest respect of the authors of Form 404 Bullen and Leake, (and in fairness their precedent goes on to state the particulars are the best they can provide until discovery and interrogatories, something this plaintiff does not state) the particulars insofar as they allege Woolworths or Frutex knew or ought to have known the hot cross buns contained extraneous or deleterious substances simply beg the asking of the usual questions, what where when why and how? The same criticisms may be made in respect of the allegations that the defendants failed to take any or any adequate precautions, how they permitted the deleterious substance to be in the hot cross buns, or the failure to take any or any adequate measures by way of examination inspection testing or 'otherwise'. Until such time as the defendants are aware of the material facts upon which these allegations are made it is, in my opinion, impossible for them to properly appreciate the nature of the case being brought against them and to defend themselves against the unspecified allegations effectively or economically or at all.
23 The question arises as to whether these deficiencies can be remedied by further and better particulars or whether it is more appropriate to strike out that paragraph.
24 In my opinion the plaintiff should be given an opportunity to amend par 9 by disentangling in her pleading what seems to me must be different and distinct acts of negligence of each defendant and setting them out separately, and properly particularising the allegations of negligence against each defendant separately and discreetly.
Does the statement of claim plead a cause of action not pleaded in the writ of summons?
25 By the Rules of the Supreme Court O 6 r 1, a writ is required to be indorsed with the concise statement of the nature of the claim made and/or the relief or remedy required in the action. The indorsement of the concise statement or the nature of the claim made and the relief or remedy required serves a number of functions identified by Newnes JJA in Glendinning v Cuzens [2009] WASCA 21. There he said:
But in determining whether an indorsement on a writ is adequate, it is necessary to bear in mind that an indorsement serves three important functions:
1. It informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2. It enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474 at 475; and
3. It sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
26 In my opinion the indorsement complies with O 6 r 1. It is my view that any person on reading the indorsement of the writ would immediately take the view that the plaintiff suffered a personal injury by biting into a hot cross bun containing a hard substance, for which Woolworths or Frutex or both are liable to pay her damages. It is true she does not expressly say whether this is as a result of the negligence of either of those defendants or whether her entitlement for damages arises some other way, such as for breach of contract. If any criticism can be made of the indorsement, it is as to its breadth. More particularly, it is drafted in such wide terms it could capture any one of possibly several causes of action. However, the statement of claim is only required to contain within it pleadings of material facts, not conclusion of law that arise from those facts. In those circumstances it is impossible to see why a concise indorsement of the nature of the claim and the relief sought, which necessarily implies it will be less detailed than a statement of claim, to state the legal consequences that arise from those facts. In my view the indorsement does contain a concise statement of the nature of the claim made and the relief or remedy required in the action. Having regard to the criteria set out in Glendinning v Cuzens, in my view the indorsement informs the defendants of the nature of the claim made and relief sought sufficiently to enable them to determine whether or not they should enter an appearance and if so whether the appearances should be conditional or unconditional appearances. The fact the indorsement does not specifically mention the word “negligence” does not mean the facts as described do not allege a cause of action in negligence. It also enables the defendants to determine whether there are any limitation provisions that might apply, the indorsement showing that the cause of action arose on 3 April 2013. The actual date the cause of action arose is in my view a particular of the cause of action. It determines what evidence is relevant and admissible and determines whether or not the defendant may have a defence under the Limitation Act. In March 2016 the writ was amended which changed the name of the first defendant. It also amended the date of accident to 5 April 2013. The amendment to this particular preceded the expiration of any limitation period. It does not create or allege a different cause of action to that originally set out in the indorsement having regard to the meaning of cause of action in this context. I refer particularly to the comments of Newns AJ in Glendinning v Cuzens that:
a cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474, 475 …
27 When regard is had to the circumstances of the accident set out in the indorsement of claim the amendment to the date should be regarded as an amendment to the particulars of the cause of action rather than the substitution of a fresh and independent cause of action. The cause of action is that the plaintiff was injured as a result of the sale of hot cross buns containing a foreign substance. That it happened on 3 or 5April is immaterial unless there were other incidents of the same nature in the same month and year. The only way the date of accident is otherwise material is if the date is demonstrates the action arose at a time the defendant may have been able to avail itself of a limitation defence.
28 The statement of claim alleges that the plaintiff's injuries were as a result of the negligence of the defendants. Contrary to the submissions made by the defendants that the statement of claim introduces a cause of action other than one disclosed in the indorsement to the writ, it is my view that the statement of claim in fact sets out a cause of action that falls within the ambit of the writ and in fact effectively narrows and confines the otherwise broad allegations in the indorsement.
Conclusion
29 The state of the pleadings in the statement of claim is such as to prejudice embarrass or delay the fair trial of the action. It is my view that the plaintiff should be given an opportunity to amend the statement of claim by re-pleading pars 6 – 8 addressing the deficiencies I have found.
0
5
1