| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GILLAM -v- SERCO AUSTRALIA PTY LIMITED [2005] WADC 171 CORAM : REGISTRAR KINGSLEY HEARD : 7 JULY 2005 DELIVERED : 5 SEPTEMBER 2005 FILE NO/S : CIV 622 of 2004 BETWEEN : BRADLEY GILLAM Plaintiff
AND
SERCO AUSTRALIA PTY LIMITED
Defendant
Catchwords: Practice - Application to amend statement of claim - Turns on own facts
Legislation: Occupiers Liability Act 1985
Occupational Safety and Health Act 1984
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr H M O'Sullivan
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 78 ALJR 933
Hackshaw v Shaw (1984) 155 CLR 614
Case(s) also cited:
Nil
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1 REGISTRAR KINGSLEY: The plaintiff by his summons filed 3 June 2005, seeks leave to amend his statement of claim in terms of a Minute of Proposed Wholly Amended Statement of Claim ("Minute") filed with the application.
2 The defendant objects to leave being given. The objections focus on pars 3, 4, 6 and 8 of the Minute. 3 Paragraph 3 of the Minute pleads the defendant was an occupier of the Swanbourne/Claremont Hospital and accordingly was: (a) at common law an occupier of the premises; and/or, (b) an occupier of premises within the meaning of s 2 of the Occupiers Liability Act 1985 (WA); and / or (c) a person who had control of a workplace within the meaning of s 22 of the Occupational Safety and Health Act 1984 4 Paragraph 4 of the Minute pleads the plaintiff was engaged to and attended upon the premises to repair a water leak in the roof of a building situated on the premises. 5 In pars 6 and 8, the common theme of objection is that the plaintiff states that certain particulars of the pleading will be provided prior to trial. 6 The defendant objects to par 3 of the Minute on the basis that the mere plea of occupation is not enough. Some context must be given to the fact of occupation so that, ultimately, a determination can be made as to the extent of the duty owed by the occupier to the entrant. The plaintiff's counsel submits that there is no need to plead material facts to support a banal contention: that a person holding possession of property, especially a dwelling or land, is an occupier (New Shorter Oxford Dictionary). The defendant knows whether it occupied the premises at the material time and so can plead to par 3. 7 I have been referred to Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 78 ALJR 933 by the defendants counsel. At [1] Gleeson C J notes that there is little assistance to consider issues of duty of care, breach and damages at a high level of abstraction divorced from the concrete facts. Gleeson C J continues in [1] to comment that there was an obvious duty of care owed by respondent to the appellant – the appellant had been on the respondents premises for some hours, and had
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consumed the food and drink supplied by the respondent – but there was an issue concerning the nature and extent of the duty, "To address that issue, it is useful to begin by identifying the harm suffered by the appellant, for which the respondent is paid to be liable, and the circumstances in which she came to suffer that harm" (Gleeson C J [1]). 8 Gummow and Haynes JJ at [56] commented that "… the articulation of a duty of care at too high a level of abstraction provides an inadequate legal means against which issues of fact may be determined". 9 The common law has recognised that an occupier owes a duty to take reasonable care for the safety of those who enter premises. That duty arises from the occupation of the premises. However, the duty of care owed by the occupier is a duty to take reasonable care to avoid what did happen to the plaintiff. This is because the critical question is whether the negligence of the defendant is the cause of the plaintiff's injury. 10 In Hackshaw v Shaw (1984) 155 CLR 614 at 622 Deane J stated: "All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendants occupation and the manner of the plaintiffs entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff." 11 As the plaintiff asserts, so it must plead. The plaintiff asserts the occupation, and the entry onto the premises. The plaintiff, in my opinion, must plead the factual basis of occupation, and the factual basis of entry. This the plaintiff has not done. 12 In my opinion par 3 of the plaintiff's Minute ought be struck. 13 My reasoning as to par 3 flows on to par 4 of the statement of claim. For the content of the defendant's duty to be determined, it is necessary to examine why the plaintiff was on the defendants premises. It is for the plaintiff to plead the basis of his entrance onto the defendant's premises. 14 Paragraphs 6.2.1 and 6.2.2 plead the Kliplok roof gave way because the metal roof was old rusty and worn, and the ends of the roof were not fitted properly. The defendant submits that particulars have not been given of these allegations. In my opinion the plea in par 6.2.1 is self explanatory. The plea in par 6.2.2 is deficient in that some particularisation is required of the plea that the ends of the roof were not fitted or adjoined properly.
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15 Paragraph 6.2.3 ought be struck. The writ was issued in March 2004. This is the second amendment to the pleading, and after this length of time the plaintiff should have sufficient facts to plead why the roof gave way.
16 Paragraph 7 as a plea in itself is unobjectionable. The defendant submits that there is no basis to say how the duty pleaded arose. That is correct, but that issue goes back to pars 3 and 4 of the statement of claim. It is at that point the duty must be pleaded. 17 Paragraphs 8.2 and 8.3 plead an issue of knowledge on the part of the defendant, but does not particularize why the defendants should have known. The pleadings have not closed and discovery has not been given. The plaintiff pleads that full particulars of knowledge are to be given after discovery of interrogatories. I am content to allow that plea to stand. 18 However par 8.5 should be particularised. Again after this length of time the plaintiff should be possessed of facts to adequately plead the failure to provide a safe means of access. I would strike par 8.5. 19 Paragraphs 10, 11, 12 and 13 relate to particularising claims for medical expenses, special damages, loss of earning capacity and voluntary services. I will not strike these paragraphs. Whilst schedules of damages, in this Court, commonly take the place of particulars of damages, the amount of damages are often amended through the effluxion of time. To enable a meaningful figure for damages, and one on which the defendant can frame its offer, if there is to be one, at a pre-trial conference I will not require the plaintiff to particularise the damages at this stage. To do so will quantify those damages at an early point in these proceedings, so that the figure will be meaningless as the matter approaches a pre-trial conference. 20 For these reasons I am of the opinion leave ought not be given to the plaintiff to amend the statement of claim in terms of the Minute filed 3 June 2005. 21 I will hear counsel on the form of orders and costs.
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