Farmer v Broadspectrum (Australia) Pty Ltd
[2022] NSWSC 1423
•14 October 2022
Supreme Court
New South Wales
Medium Neutral Citation: Farmer v Broadspectrum (Australia) Pty Ltd [2022] NSWSC 1423 Hearing dates: 14 October 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Common Law Before: Garling J Decision: See [16]
Catchwords: CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — No explanation for lateness — No prejudice — Amendment allowed
Legislation Cited: Not applicable
Cases Cited: Not applicable
Category: Procedural rulings Parties: William Farmer (P)
Broadspectrum (Australia) Pty Ltd (D1)
Wilson Security Pty Ltd (D2)Representation: Counsel:
Solicitors:
M Cranitch SC (P)
D Priestley SC (D1)
W Reynolds (D2)
Somerville Laundry Lomax (P)
Gilchrist Connell (D1)
JLN Corporate Services Pty Ltd (D2)
File Number(s): 2018/175460 Publication restriction: Not applicable
EX TEMPORE Judgment
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This is an application by the plaintiff to amend his Statement of Claim by the addition of a further particular of negligence in the following form: "Failing to provide adequate lighting at or near the staircase." That particular of negligence is said to be relevant to the claims made against both the first defendant and the second defendant.
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Proceedings were commenced against the first defendant in June 2018 and against the second defendant on 29 June 2022. No doubt each of them, however, had notice of the plaintiff's accident when he fell down some stairs in his accommodation block at Nauru either at the time it happened or in a very short time thereafter.
Submissions of the Plaintiff
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The application to amend the Statement of Claim was brought on the first or second day of the hearing of these proceedings, some notice having been given to the defendants shortly prior to it being brought. The application to amend the Statement of Claim is not accompanied by any explanation as to the reason why it is brought so late in the proceeding, and the plaintiff's Senior Counsel does not proffer any explanation at all from the bar table.
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He submits that an existing particular of negligence in the following terms, "Failing to provide the plaintiff with a safe workplace" would cover the adequacy or inadequacy of the lighting at or near the staircase from which the plaintiff fell, but submits that for more abundant caution, the plaintiff ought plead specifically a failure to provide adequate lighting.
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Senior Counsel for the plaintiff submits that in the interest of justice, in the circumstances which are described later, his client ought be permitted to amend the case even in the absence of any explanation for it arising so late in the proceedings. He submits that, having regard to the fact that evidence has been given by the relevant lay witnesses and by two experts whose evidence might otherwise touch on the lighting, there is no prejudice that can be identified to the defendants.
Submissions of the Defendants
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The first defendant, Broadspectrum (Australia) Pty Ltd, accepts that it cannot point to any specific identifiable prejudice but submits that, nevertheless, in the absence of the provision of any explanation by the plaintiff, such a late amendment ought not be permitted.
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The second defendant, Wilson Security Pty Ltd, who, as I have earlier said, was only joined a few months ago, submits that the prejudice it has suffered is that, given that its presence on Nauru was terminated last year, it has not had the opportunity of speaking to any of its employees who were on the island at the time and obtaining from them any evidence or information about the state of the lighting generally or at the time of the incident. To that extent, the second defendant submits that it is prejudiced.
Discernment
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In considering this issue, I put to one side that there is no expert evidence which has been led on the adequacy or inadequacy of the lighting. It is clear from the reports of the relevant liability experts that before either of them was prepared to express an expert opinion about the adequacy or inadequacy of the lighting, they would need to have various tests taken to identify the level and state of the lighting at the time of the accident. No expert has been able to travel to Nauru to carry out these tests.
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There is lay evidence from Mr Graehame Alexander, who took it upon himself on 6 and 7 November 2016, after the plaintiff's accident had occurred, to investigate the scene of the accident and the possible causes of it. The results of his investigations are contained in an email dated 7 November 2016, which was sent to a Mr Jim Holt, who, I am told, was in charge of security at the relevant facilities. At the time he sent the email, Mr Alexander was an employee of the second defendant, as was Mr Holt, the person to whom he sent the email and also a Mr Williams, a person who has given evidence in the proceedings. Mr Alexander's email records that his opinion was that:
"the current lighting, on reflection, [was] very dim and not bright enough for that top level".
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A report, completed apparently by a Ms Megan Leonard, a supervisor at the time for Wilson Security, and which is in evidence, provides a description of what occurred when the plaintiff fell, but it does not seem to include any reference specifically to the state of lighting at the time.
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A report, apparently completed by Mr Williams for Wilson Security, in a standard form makes no reference at all to lighting. The plaintiff, Mr Alexander and Mr Williams were asked questions about the level of lighting. There are some photographs taken at the time which show various different stages of lighting, although it may be that those photographs do not accurately reflect the true difficulties of lighting. And, as I have earlier said, both liability experts considered the question of lighting, but declined to express an opinion.
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In my view, it would have made no difference to the running of this case if this proposed amended pleading had been in existence from the time that the Statement of Claim had been filed. The fact of the matter is that both defendants, knowing that there was a suggestion being made by Mr Alexander that the lighting was inadequate, did not seem to have in their investigations determined that they would look at that question or make any investigation at all of it. Had, in 2018, this particular been included in the Statement of Claim, I do not see that either defendant would have been in any different position with respect to the allegation with respect to lighting.
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In those circumstances, I am unpersuaded that either defendant has suffered any prejudice, and I am unpersuaded that the prospect to which the second defendant has referred in its submissions, namely that there may have been some other person to whom they might have spoken had it been obvious to them at the time, is substantiated. Accordingly, I am not able to identify any prejudice to any party from the amendment.
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I do not accept the plaintiff's submission that a generalised assertion of an unsafe workplace is a sufficient particular of negligence to cover a specific allegation that lighting was not adequate in the circumstances, and I do not overlook that the plaintiff has simply not provided any explanation at all as to why it is necessary for its Statement of Claim to be amended more than four years after it was filed.
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Nevertheless, the matter having been raised, the plaintiff's contention having been that he wishes to include in his case an allegation with respect to lighting and the adequacy of it, and there being no prejudice to any party that can be identified from that late inclusion, I, in the exercise of the discretion which I have to permit amendment, would exercise my discretion in the interests of justice, so as to allow the Further Amended Statement of claim Dated 12 October 2022 to be filed.
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I make the following orders:
Grant leave to the plaintiff to file a Further Amended Statement of Claim in the form handed to the Court dated 12 October 2022.
Direct that the original of that Further Amended Statement of Claim be filed on or before 4pm Monday 17 October 2022.
Order the plaintiff to pay the defendant's cost of and occasioned by the amendment.
Direct that if the parties wish to rely on any outline of submissions, a copy is to be provided to my Chambers by 4pm Monday 17 October 2022.
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Decision last updated: 28 October 2022
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