Flood v Bishop
[2010] WADC 177
•30 NOVEMBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: FLOOD -v- BISHOP [2010] WADC 177
CORAM: SLEIGHT DCJ
HEARD: 15 NOVEMBER 2010
DELIVERED : 30 NOVEMBER 2010
FILE NO/S: CIV 1142 of 2010
BETWEEN: LEWIS FLOOD
Plaintiff
AND
JANICE MARIE BISHOP
First DefendantKEY INVESTMENTS WA PTY LTD
Second DefendantOPAL INVESTMENTS WA PTY LTD
Third Defendant
Catchwords:
Procedure - Appeal against deputy registrar's decision to strike out statement of claim - Plaintiff claims negligence and breach of statutory duty - Whether pleading discloses a reasonable cause of action - Whether pleading discloses a basis for claiming a duty of care - Turns on its own facts
Legislation:
Occupational Safety and Health Act 1984 s 23
Rules of the Supreme Court 1971 (WA) O 20 r 19
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff: Mr A J Stewart
First Defendant : No appearance
Second Defendant : Mr G C Northmore
Third Defendant : Mr G C Northmore
Solicitors:
Plaintiff: Chapmans
First Defendant : Not applicable
Second Defendant : Greenland Legal Pty Ltd
Third Defendant : Greenland Legal Pty Ltd
Case(s) referred to in judgment(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281
Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209
Gautret v Egerton (1867) LR2CP 371
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986
McMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271
Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Tame v New South Wales (2002) 211 CLR 317
West Rand Central Gold Mining Company Ltd v R [1905] 2 KB 391
SLEIGHT DCJ: This is an appeal against a decision of Deputy Registrar Hewitt on 16 September 2010, whereby the learned deputy registrar struck out the plaintiff's claim against the second and third defendants.
The appeal is a complete review of the matter de novo (see Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ)).
Since the decision of the learned deputy registrar on 16 September 2010, the plaintiff has filed a minute of a proposed further amended statement of claim dated 17 September 2010 (the statement of claim) and being a review of the matter de novo, the appeal before me was argued on the basis whether this amended statement of claim against the second and third defendants should be struck out.
Background
From the statement of claim the following background is alleged by the plaintiff. The plaintiff is a nursing assistant employed at all material times by Nursing Australia. The first defendant is a company providing case management for patients. The second and third defendants conduct a business which included repairing wheelchairs.
In this action the plaintiff makes two claims:
(a)The first claim is against the first defendant for damages arising from an incident on 3 February 2009 when the plaintiff was attending a patient, Mr Peter Hancock. It is pleaded the plaintiff was acting under the direction of the first defendant at the time. For the purposes of this decision there is no need for me to go into the details of this claim which is based upon an allegation of negligence and/or breach of statutory duty.
(b)The second claim is against the second and third defendants and is quite independent of the first claim. The plaintiff pleads that on 13 May 2009 she suffered an injury whilst wheeling the patient, Mr Peter Hancock, a distance of between 3 to 7 km in a wheelchair. The plaintiff pleads that the wheelchair had a defect making it difficult to push and steer and this caused her injury to her neck, back, shoulders, arm and leg. The plaintiff claims the first and second defendants are liable for these injuries.
Application to strike out
The application to strike out is pursuant to O 20 r 19 of the Rules of the Supreme Court1971 which provides as follows:
19. Striking out pleadings and indorsements
(1)The Court may at any stage of the proceedings, subject to paragraph (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that —
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2)No evidence shall be admissible on an application under paragraph (1)(a).
(3)Subject to paragraph (4) an application for an order under paragraph (1) must —
(a)be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers;
(b)where the application is to strike out certain pleadings, specify —
(i)the subparagraph of paragraph (1) under which the application is made; and
(ii)those parts of the pleadings which the applicant seeks to have struck out;
and
(c)where the application is to strike out the entire pleading, clearly indicate that intention in the application.
[(4)deleted]
(5)Unless special circumstances are shown, an application to amend pleadings consequent upon an order striking the pleadings out, in whole or in part, shall be accompanied by a minute of the proposed amendment.
The application by the defendant to strike out the statement of claim is on the grounds that the statement of claim discloses no reasonable cause of action.
The original statement of claim in this matter was filed on 19 April 2010 and the application to strike out was not made until a chamber summons was filed on 18 August 2010. Accordingly, the application was made outside the 21‑day period prescribed in O 20 r 19(3)(c). However, this issue was not pursued on the appeal. In any event under O 3 r 5, the court has a discretion to extend a time period prescribed by the rules. Given the fact that the plaintiff now relies upon a statement of claim dated 17 September 2010, I exercise my discretion to extend the time period prescribed by O 20 r 19(3)(c) to cover the application filed by the second and third defendants.
Legal principles applicable on a strike out application
The principles to be applied in considering an application to strike out pleadings were summarised in Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) (Staples M) as follows (Seaman, Civil Procedure in WA commentary 20.19.6):
(1)The rule is intended to apply only to cases which are really not arguable and not to cases where, under the previous practice, demurrer would have been the proper course: Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 19 at 195;
(2)on the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable: Niven v Grant (1903) 29 VLR 102 at 106;
(3)great care must be exercised to ensure that the plaintiff is not improperly deprived of his or her opportunity to have a trial of his or her case by the appointed tribunal: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 130; [1965] ALR 636 at 639; (1964) 38 ALJR 253 at 255; BC6400590;
(4)the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed: General Steel Industries Inc v Cmr for Railways (NSW), above CLR at 130; ALR at 639; (ALJR) at 255. However, the statements in General v Steel above, should not be given canonical force: Batistatos v Roads & Traffic Authority (NSW) (2006) 227 ALR 425, 80 ALJR 1100; [2006] HCA 27; BC200604226 at [46];
(5)as a general rule a plaintiff is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before a trial judge upon the facts as founds. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff, that the pleading should be struck out: Dalgety Australia Ltd v Rubin (WASC) Full Court, Lib No 5485, 24 August 1984, unreported);
(6)a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1983) 454 ALR 365 at 373.
When considering the question of whether the pleading discloses a reasonable cause of action, it is necessary to consider what is required by a pleading to disclose a cause of action.
A cause of action must not be pleaded in general terms and must be alleged with particularity (Seaman, Civil Procedure in WA, commentary 20.8.2). Although the contemporary role of pleadings is more relaxed because of contemporary case management techniques which can often provide details of a claim, the pleading must fulfil its basic function of identifying the issues, disclosing an arguable cause of action, and appraising the parties of the case that has to be met (Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281 (Martin CJ) – Barclay Mowlem's Case).
The plaintiff contends that under the modern system of pleading, the question is not whether facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the applicant upon the pleaded to prove facts at the trial which would constitute a cause of action. The authority for the proposition is a Federal Court decision of Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405, 414. However, that proposition is not, in my opinion, necessarily applicable to the District Court of Western Australia and the Supreme Court of Western Australia. In Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628, 631, the Privy Council noted the principle did not apply to the superior courts in New South Wales. Further, under O 20 r 8 of the Rules of the Supreme Court 1971 a pleading must contain 'a statement in a summary form of the material facts on which the party pleading relies for his claim'.
In my opinion, the correct approach consistent with the decision of Martin CJ in Barclay Mowlem's Case, is that sufficient material facts must be pleaded to disclose an arguable cause of action: see also Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 [13] (Beech J); McMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271 [11] ‑ [26] (Templeman J).
Pleadings
The plaintiff's statement of claim alleges the injuries suffered by the plaintiff on 13 May 2009 were caused by the negligence and/or breach of statutory duty on the part of the second and third defendants.
Counsel appearing for the plaintiff rightly conceded on the hearing of the appeal that the claim for breach of statutory duty could not be sustained. It was purportedly on the basis of a breach of s 23 of the Occupational Safety and Health Act 1984 (incorrectly referred to in the statement of claim as the Occupational Health, Safety and Welfare Act 1984). Section 23 of the Occupational Safety and Health Act1984 places certain obligations on a person who 'designs, manufactures, imports or supplies any plant …'. The statement of claim does not allege the second and third defendants designed, manufactured, imported or supplied wheelchairs and accordingly, the statement of claim fails to disclose any material facts upon which a statutory obligation could arise.
The claim based upon a common law claim is pleaded in the following way. Paragraph 6 of the statement of claim pleads that the injuries suffered by the plaintiff on 13 May 2009 arose from the use of the wheelchair. The use of the wheelchair is described in the pleading as 'the second task'. The statement of claim then goes on to plead as follows:
12AAThe Second and Third Defendants had a duty to repair any defects in the wheelchair referred to in paragraph 6 above, on receipt of notification of those defects from the First Defendant.
12ABAs a consequence of paragraph 12AA, the Second and Third Defendants owed the Plaintiff a duty of care at common law.
12AFrom in or about early January 2009 to May 2009, the Plaintiff notified the First Defendant that the wheelchair was faulty, by recording the faults in the First Defendant's communications book kept at Unit 84, 55 Jackson Road, Como, and by oral communication.
12BThe First Defendant subsequently notified the Second and Third Defendants of the faults.
13.Prior to the second material date, the Second and Third Defendants were notified by Andrea Witt, a co‑worker of the Plaintiff, that the wheelchair was faulty.
13AAs a result of the notifications referred to above, the Second and Third Defendants attempted to repair the wheelchair on 7 January 2009, but otherwise refused to respond to the notifications until 14 May 2009, after the second material date.
14.The second incident was caused by the negligence and/or breach of statutory duty by the Second and Third Defendants, their employees, servants or agents in that they:-
(a)Failed to repair or replace the wheelchair prior to the Plaintiff carrying out the second task;
(b)Failed to detect and/or repair the defect prior to the Plaintiff carrying out the second task;
(c)Failed to warn the Plaintiff of the danger of wheeling the wheelchair with the defect;
(d)Allowed the Plaintiff to wheel the wheelchair with the defect;
(e)Failed to adequately respond, or respond at all, to the notifications referred to in paragraphs 12A, 12B and 13 above.
15.As a result of the incidents the Plaintiff sustained injuries ("the injuries").
PARTICULARS OF THE FIRST INCIDENT INJURIES
(a)neck and low back injury ("the first injury").
PARTICULARS OF SECOND INCIDENT INJURIES
(b)neck, back, left and right shoulders, arm and leg injury ("the second injury").
The pleading does not disclose any facts from which it is alleged the second and third defendants had a duty to repair as pleaded in par 12AA. Nor is there any particularity as to whom the alleged duty is owed and the scope of the duty.
Further, the pleading in par 12AB is a non‑sequitur. It does not follow that because the second and third defendants were under a duty to repair (to unspecified persons) they thereby had a duty of care to the plaintiff.
It is not enough for the plaintiff in her statement of claim to allege merely that the second and third defendants acted negligently and thereby caused the plaintiff damage; the plaintiff must also plead the material facts which show that a duty of care existed and that the alleged negligence caused a breach of that duty of care (Gautret v Egerton (1867) LR2CP 371 (Wilkes J), cited with approval by Lord Alverstone CJ in West Rand Central Gold Mining Company Ltd v R [1905] 2 KB 391, 400; Bullen, Leake & Jacobs, Precedents of Pleadings, 13th ed, 678 ‑ 9). This is because the common law of negligence does not provide for recovery by all who suffer negligently inflicted harm. The concept of the existence of a duty of care has a fundamental important role to play as a pre‑requisite to liability (Hayne J in Tamev New South Wales (2002) 211 CLR 317 at [249] ‑ [250]). As to whether a duty of care exists is often a difficult issue as the law has struggled to arrive at a universal law defining the circumstances in which a duty of care should exist. However, there must be something disclosed by the pleading to create a circumstance between the plaintiff and the second and third defendants so as to give rise to an arguable duty of care.
The plaintiff's pleaded claim, as acknowledged by counsel for the plaintiff, was based upon the second and third defendants failing to carry out repairs as requested. In my opinion, in order to establish a duty of care to the ultimate user of the wheelchair, something more than just failure to respond to a request to repair must be pleaded to establish a duty of care owed by the second and third defendants to the plaintiff.
Conclusion
For the above reasons I conclude that the statement of claim does not disclose a reasonable cause of action because it does not plead material facts upon which it could be said a duty of care arose. Accordingly, the appeal is dismissed. I will hear counsel as to the final orders to be made.
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