Godin v CAMON

[2001] WADC 28

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   GODIN -v- CAMON & ORS [2001] WADC 28

CORAM:   GREAVES DCJ

HEARD:   16 JANUARY 2001

DELIVERED          :   16 FEBRUARY 2001

FILE NO/S:   CIV 2414 of 2000

BETWEEN:   PAUL JAMES GODIN

Plaintiff

AND

BERNARD CAMON
First Defendant

SEDCO FOREX INTERNATIONAL DRILLING INC
Second Defendant

WOODSIDE ENERGY LIMITED
Third Defendant

Catchwords:

Practice and procedure - Whether statement of claim may prejudice, embarrass or delay fair trial of action - Leave to amend granted - Further and better particulars ordered

Legislation:

Rules of the Supreme Court, O 19(1)(c)

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff:     Mr C A Luck

First Defendant             :     Mr R G Walton

Second Defendant         :     Mr R G Walton

Third Defendant           :     Mr R R Connell

Solicitors:

Plaintiff:     Marks & Sands

First Defendant             :     Skea Nelson & Hager

Second Defendant         :     Skea Nelson & Hager

Third Defendant           :     Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. GREAVES DCJ:  This is an application by the second defendant pursuant to the Rules of the Supreme Court, O 19(1)(c) to strike out all or parts of the statement of claim in this action, on the ground that the pleading may prejudice, embarrass or delay the fair trial of the action.

2. The plaintiff pleads a cause of action in negligence against each and all of the three defendants in par 5 of the statement of claim.  In par 4 of the statement of claim, the plaintiff pleads:

   "On or about 24 August 1998 whilst in the employment of Schlumberger:

   (a)the Plaintiff was undertaking duties in the course of his employment on the Rig;

   (b)the Plaintiff was engaged in a process known as 'stabbing' whereby machinery ('the Machinery') is used to drive casing into the ocean floor;

   (c)the Plaintiff had his hands on top of the casing that was about to be driven into the ocean floor;

   (d)the First Defendant in the course of his employment with the Second Defendant was operating the Machinery;

   (e)a large block of metal driven hydraulically ('the Metal Driver') by the Machinery came down on top of the casing whilst the Plaintiff's hands were still on top of the casing, cutting all four fingers on both hands off ('the Accident')."

3. By par 3 of the statement of claim, the plaintiff alleges that the rig was at all material times located on the Laminar Oilfield approximately 320 nautical miles from Darwin and 220 nautical miles due North of the West Australian Coastline.  By par 2 of the statement of claim, the plaintiff alleges:

   "At all material times:

   (a)the Plaintiff was employed by Schlumberger Oilfields Australia Pty Ltd ('Schlumberger');

   (b)the First Defendant was the agent and/or servant of the Second Defendant;

   (c)in the premise the Second Defendant was vicariously liable for the negligent acts and omissions of the First Defendant;

   (d)the Second Defendant was in occupation and control of the Sedco 703 drilling rig ('the Rig');

   (e)the Second Defendant exercised control over the overall systems of work on the rig;

   (f)located on the rig was machinery which drove casing or tubing into the ocean floor ('the machinery');

   (g)the Third Defendant was the owner of the Rig and controlled the types and number of skilled persons allowed on the rig and had control over the systems of work utilized on the rig and was an occupier and or person in control of the rig;

   (h)the First Defendant owed to the Plaintiff a duty of care to:

   (i)take all reasonable care and attention in the operation of any machinery;

   (ii)to take all reasonable precautions for the safety of the Plaintiff;

   (iii)not to expose the Plaintiff to risk of damage or injury of which the First Defendant knew or ought to have known;

   (i)the Second Defendant owed to the Plaintiff a duty of care to:

   (i)provide and implement a safe system of work;

   (ii)ensure that the Plaintiff was provided with a safe place of work;

   (iii)provide adequate safeguards for the operation of the Machinery;

   (iv)adequately train the Plaintiff in the operation of the Machinery;

   (v)adequately train the First Defendant in the operation of the Machinery;

   (vi)provide persons of adequate expertise and training to operate the Machinery;

   (vii)ensure that the rig and fixtures and fittings thereon did not pose an unreasonable risk of injury to the Plaintiff.

   (j)the Third Defendant owed to the Plaintiff a duty of care to:

   (i)take reasonable care and attention in its control or conduct of the Rig;

   (ii)ensure that the Rig was a safe place of work;

   (iii)ensure that the rig and fixtures and fittings thereon did not pose an unreasonable risk of injury to the Plaintiff."

4. Counsel for the second defendants submitted that par 2(b), par 2(c) and par 2(h) should be struck out because the plaintiff does not plead facts which define the alleged relation between the first and second defendants and which counsel said are material to the cause of action alleged against the second defendant.  Counsel submitted that the pleas are embarrassing because they leave the second defendant in doubt about the case against it.  Counsel for the plaintiff accepted that the use of the term "agent" in itself created problems and he conceded that the words "agent and/or" should be deleted from par 2(b) of the statement of claim.  I grant leave to amend accordingly.

5. Counsel for the second defendant then turned to par 2(d), par 2(e) and par 2(g) of the statement of claim.  Counsel submitted that the plaintiff does not plead the material facts upon which these pleas are based and that the pleas are inconsistent on their face.  He said that it was not crucial in this case to determine whether the plea of control by occupation was a plea of a material fact.  His submission was that no material facts are pleaded which would lead to the conclusion that there was control of the rig in the sense of control of the systems at work on the rig.  He submitted that the systems at work cannot arise out of mere occupancy of the rig.  Counsel for the plaintiff submitted that the plea of control of the rig and the systems of work on the rig were sufficient facts to establish a duty of care on the part of the second defendant as alleged.  He submitted that the plea in par 2(g) that the third defendant controlled the types and number of skilled persons allowed on the rig and had control over the systems of work on the rig was not an inconsistent plea.  In my opinion, the plaintiff should give particulars after discovery of the material fact upon which he alleges control of the rig and the systems of work on the rig gave rise to a duty of care to the plaintiff and thereby mark out the dispute between the plaintiff and the second defendant.

6. Counsel for the second defendant further submitted that the particulars contained in par 5(d) of the statement of claim that the second defendant failed to adequately train the first defendant to operate the machinery are embarrassing because no allegations of fact which support the plea are made.  In my opinion, the particular objected to is a particular of negligence which if established may lead to a conclusion of negligence on the part of the second defendant.  Likewise, I am of the opinion that the remaining particulars in par 5 are not embarrassing.  I am of the same opinion in relation to the particulars in par 2(i) and par 2(j).  In my opinion, the embarrassment which the second defendant complains of will be cured by the amendment and particulars after discovery which I have ordered.

7. I will hear counsel on the orders to be made.