Hossain v Unity Grammar College Ltd

[2018] NSWSC 1204

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hossain v Unity Grammar College Ltd and Ors [2018] NSWSC 1204
Hearing dates:	23; 24 July 2018
Date of orders:	24 July 2018
Decision date:	24 July 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I will allow Mr Morris SC to cross-examine on this topic.
Catchwords:	NEGLIGENCE – severe personal injury - gas explosion at place of work - explosion - gas regulator negligently installed - gasfitting at School -Dangerous Goods (Gas Installations) Regulation 1998 (NSW) EVIDENCE – whether a party can cross examine on a regulation which was not expressly pleaded - statement of claim - UCPR 14.14 - requirements of the rules in the overall context in which the question arises - central issue was whether the compliance plate had been attached - cross-examination allowed on this topic
Legislation Cited:	Dangerous Goods (Gas Installations) Regulation 1998 (NSW), regs 11, 15 Uniform Civil Procedure Rules 2005 (NSW), r 14.14
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Delwar Hossain (Plaintiff) Unity Grammar College Ltd (First Defendant) Binah Projecs Pty Ltd (Second Defendant) Five Star (Sixth Defendant) Elgas Limited (Seventh Defendant)
Representation:	Counsel: A Black SC with E E Welsh (Plaintiff) D A Lloyd (First Defendant) M Fordham SC with N Condylis (Third Defendant) P Cavanagh SC with J Tat (Sixth Defendant) P Morris SC (Seventh Defendant) R O’Neill (Third Cross Defendant on first cross-claim) Solicitor: Young & Muggleton (Plaintiff) HW Ebsworth (First Defendant) Holman Webb (Third Defendant) McCabe Curwoods (Sixth Defendant) Meridan Lawyers (Seventh Defendant) McDonnell Schroder (Third Cross Defendant on first cross-claim)
File Number(s):	2013/401848

EX TEMPORE JUDGMENT

1. ​The plaintiff sues a number of defendants, including the sixth defendant Five Star Universal Plumbing Pty Limited (“Five Star”) and the seventh defendant Elgas Limited (“Elgas”) for severe personal injury suffered when gas expelled from an improperly vented regulator at his place of work exploded on 10 February 2010. His injuries include very severe burns to a large proportion of his body and other consequent disabilities.

2. The case has its difficulties for all parties, given that it is common ground amongst the active parties to the proceedings that the sub-contractor which improperly installed the gas regulator is a non-party. Enma Plumbing Pty Limited (“Enma Plumbing”), the offending sub-contractor, has been deregistered. From what I understand, at least from what counsel have told me from the bar table, at the time of both its deregistration and of the explosion it was uninsured.

3. The sixth defendant, Five Star, was performing gasfitting work at the place of work, Unity Grammar College Limited (“the School”), before and after 10 February 2010. On evidence I have heard so far, it probably was not on the premises at 10 February 2010 and had not been for some time. It had completed the preliminary installation work to be performed by it but the general building and construction work, in which it was involved, had not reached a state of completion where its gasfitting work could be finished.

4. One of the principals of Five Star, Mr Khaldoun Afiouni is currently giving evidence. His statement bearing today's date was tendered as Exhibit 6D1. He was asked some supplementary questions in chief by Mr Cavanagh of Senior Counsel, who appears for the sixth defendant with Ms Tat. Mr Morris of Senior Counsel is cross-examining Mr Afiouni. His is the first cross-examination by agreement amongst counsel. With a small degree of irony, the objection which I am currently resolving was in fact raised by Mr Fordham of Senior Counsel who appears for the third defendant, the insurer of the de-registered principal contractor who engaged the negligent gas fitter.

5. The question suggested an issue about Mr Afiouni's experience and competence at the time with which I am concerned, and Mr Fordham pointed out there is no pleading on behalf of Mr Morris's client that Mr Fordham’s client's insured failed to engage competent contractors to perform the work being performed by the sixth defendant. However, there is such an allegation raised by Mr Black of Senior Counsel on behalf of the plaintiff.

6. In any event, as the argument has developed, Mr Fordham's concern was somewhat assuaged by what Mr Morris had said about the purpose of this line of questioning. But if Mr Fordham was assuaged, Mr Cavanagh of Senior Counsel was not, because from the discussion it emerged that Mr Morris was relying upon the provisions of regulation 11 of the Dangerous Goods (Gas Installations) Regulation 1998 (NSW) against Mr Cavanagh’s client.

7. Mr Cavanagh, with some force I may say with respect, argued that no case involving any allegation of a breach of that Regulation by his client had been previously advanced. He submitted that such a case did not find its origin in any of the pleadings and that, as he had now gone into evidence by calling Mr Afiouni, who has given evidence which suggests he would have been aware of a breach of regulation 11 at the commencement of his work before the explosion, and from other circumstances, including the consideration that his client had not thought it necessary to engage an independent expert for the purpose of the case, and may have done so had this case been clearly raised previously, it would be unfair to for me to allow such a matter to be raised against him now.

8. So far as the pleadings are concerned, Mr Morris's client's third cross-claim in a conventional way picks up and pleads against Mr Cavanagh's client the allegations of negligence advanced in the statement of claim. The current iteration of the statement of claim is the fourth amended statement of claim which was filed only on 2 July 2018; however, that document and its previous iterations particularises the negligence of the sixth defendant upon which it relies as including (in a new paragraph 21 in the current edition) the following matter:

“Failing to take any or any adequate steps to rectify the installation despite the fact the said LPG gas tank lines and gas installation did not have any compliance certificate attached to them.” (My emphasis.)

9. The parties have all, in accordance with the current practice note, provided written submissions by way of opening to which I will return in a moment. In the course of his oral opening (7 – 8T) Mr Black pointed out that Enma Plumbing failed to provide a certificate of inspection in relation to the work it performed. He went on to refer to regulation 11 dealing with compliance plates, which is relevant here. I feel a necessity to set it out. It is in the following terms:

(1) The person responsible for the carrying out of gasfitting work on a gas installation:

(a) must detach any compliance plate from the installation before the work is carried out, and

(b) must attach a compliance plate to the installation after the work is carried out, unless the certificate of inspection issued as a result of the work being carried out indicates that the installation is patently defective.

…

Mr Black said:

“I understand the evidence from Five Star will be that it neither took off an existing compliance plate nor put one on when it carried out the 2009 gas work.”

He also went on to say that I would ultimately be invited to draw the inference that there was never any inspection of the offending regulator by anyone working on the site after the completion of the work performed by Enma Plumbing. The implication of this being that the absence of a compliance plate put persons concerned with the subsequent work and with the supply of gas on notice that there may be a question about compliance which should have been looked into.

10. Mr Black also referred to regulation 15(1) which provides, inter alia, that "[a] person must not use a gas installation unless a compliance plate is attached to the installation." In answer to a question from me during the debate about Mr Cavanagh’s objection Mr Black said that it had been his intention in opening the case as he did to rely upon non-compliance with regulation 11 against, inter alia, the sixth defendant, Five Star.

11. I must say that I have, during the course of the argument this morning, reviewed the openings provided in writing, in particular by the plaintiff but also by the seventh defendant, Elgas Ltd. Although there is certainly reference to the absence of a compliance plate as a relevant factor, there is no necessarily clear statement that the sixth defendant was negligent in failing to inspect the existing installation at the time it commenced its work in what has been referred to as the second stage of the construction of the School. Its absence must have been obvious at the very outset given there was an inspection of the site prior to the commencement of the work for the purpose of quoting on the job.

12. Speaking of the defendants generally, in the written opening Mr Black, who appears with Ms Welsh for the plaintiff, states that Five Star carried out work between July 2009 and November 2009 and it owed a duty to "ensure that the gas installation was reasonably safe for those persons" who may be on the site. But there is no express reference to regulation 11, or the absence of the compliance plate, as activating that duty.

13. Regulation 11 is certainly referred to in the discussion of the statutory framework, and at paragraph 13 this appears:

“[a]t the time of the explosion there was no compliance plate attached to the gas installation. There should have been - Five Star carried out gas fitting work to the gas reticulation system late in the previous year (2009) and should have inspected the installation for 'patent defects'. That inspection should have extended to the offending regulator.”

14. Mr Morris's written submissions, which were filed on 17 July 2018, also refer to Five Star being obliged to detach any existing compliance plate and to attach a new one at the completion of their work. It is asserted that Five Star should have satisfied itself that the whole installation was compliant, I paraphrase. It is also asserted that Five Star was bound, not only by regulation, but also by its general duty of care to ensure that the gas installation was compliant and that it was safe to (re-)introduce gas.

15. Mr Cavanagh submits that those matters effectively elide the issue with which I am concerned, which is an important one from his client's point of view, and that there is no clear statement that a breach of regulation 11 is alleged against him.

16. I interpolate that the some of the formulations of duty contained in the written submissions go beyond the content of a duty of reasonable care, but nothing turns on that for present purposes. It is also clear that the gasfitting experts in their reports refer to the probable absence of a compliance plate at the time Five Star commenced its work in 2009 as a relevant matter. That is specifically dealt with in the joint expert report dated 8 May 2018 at paragraph 5(a)-(f). Specific reference was made by the experts to the Regulation. These matters were dealt with, I think it fair to say, in general terms in the primary reports of the experts, for instance, in the report of Mr Wenning for a now-defunct-party of 21 September 2005 at paragraph 42. And at page 13 he refers to the significance of the absence of a compliance plate and, by necessary implication, refers to regulation 15 which prohibits the use of a gas installation in the absence of a compliance plate.

17. I also record that I am well aware that Mr Cavanagh objects to the admissibility of this expert evidence in its entirety, but certainly as against his client, Five Star.

18. The starting point must be the pleadings. I have set out the context and the argument at some length. I acknowledge I may not have done it all complete justice in recording it, because of the significance of the question for all of the parties, including the sixth defendant, Five Star. The pleading of paragraph 21, particular (d), is not as clear as it could have been. For instance, it should have referred to a compliance plate, not certificate, and probably to any regulations the plaintiff intended to rely upon to make good that particular of negligence. In this regard, I reminded myself and counsel of compliance of Uniform Civil Procedure Rules 2005 (NSW), r 14.14 which requires that, "[t]he plaintiff must plead specifically any matter that if not pleaded specifically may take the defendant by surprise." In its current form, the rule does not specifically, or expressly, require a party to refer to regulations relied upon, although statutory provisions and the like are the type of matter which should be specifically adverted to in a statement of claim if they are said to be. That general rule, I think, would extend beyond a pleading of a statutory cause of action or the tort of breach of statutory duty. The requirements of the rules extend equally to statements of cross-claim.

19. One has to look at the overall context in which the question arises for my determination. These proceedings were commenced as long ago as 2013 and during the time it's taken for them to come on for trial, no doubt involving the joinder of additional parties and the like, the statutory framework for the performance of gasfitting work has very much been to the fore. The various regulations, including the terms of regulation 11, have been referred to by the experts and, if I may put it this way, have been very much in play. Although the written openings do not encapsulate the case very clearly, as I have pointed out they do in substance plead a case against Five Star that it failed to comply with its obligations under the Regulation, not by way of breach of statutory duty so far as regulation 11 is concerned as opposed to regulation 9, but in terms of non-compliance with the regulations and the obligation, in substance, for Five Star to check the whole installation for compliance.

20. Although it could have been done better, having regard to the context I am satisfied that particular (d) does substantially raise that case. The reference to an inspection certificate, a different requirement, is neither here nor there as an inspection certificate is not required to be attached to a tank or other installation. Only a compliance plate is required to be so attached and I regard that misstatement as no more than infelicitous language or a slip. I understand, and I accept that, Mr Cavanagh did not read that particular in this way, but, as I have said, it appears to me that it substantially raises the allegation sought to be relied upon now.

21. The requirements of regulation 11 in a sense are not central. What is the central allegation is that the circumstances, including the absence of a compliance plate, put Five Star on notice activating a requirement of reasonable care informed by the regulations to check the system generally. Given that I am of the view that the matter is sufficiently pleaded in context to put Five Star on notice that it is part of the case it has to meet. I think in arriving at that conclusion, as Mr Cavanagh acknowledged, it is necessary for me to form an objective view about the matter.

22. I would not have been moved by the consideration, even as one of many considerations, that Five Star has decided its own expert is not necessary or not called for in the case. It seems to me that is a deliberate forensic choice made no doubt for sound reasons, tactical or otherwise, and cannot be called in its own aid in support of its objection.

23. Were I not of the view that the matter is in fact adequately pleaded, at least in substance, I may have formed a different view of the fairness issue having regard to the consideration that the point has arisen for discussion and objection in the course of Five Star's own case. I do observe, however, that all parties have agreed that the lay evidence of each party should be led in advance of the expert evidence in the case as is conventional these days when the Court as a matter of practice takes expert evidence concurrently. I think what Mr Black said in his opening address sufficiently put the matter in play based upon the pleadings as they stand. Mr Cavanagh did argue, on my understanding of it, that he should not be hoisted on his own petard in this regard, given that he disclosed the evidence that he would call to Mr Black on the basis of his then understanding of the pleadings, which I acknowledge is different from mine. I can only say, not unsympathetically, such are the fortunes of war. I will allow Mr Morris SC to cross-examine on this topic.

**********

Amendments

06 August 2018 - Date of orders changed to 24 July 2018

06 August 2018 - Cover Sheet:

Representation amended to include McDonnell Schroder (for Third Cross Defendant on first Cross Claim)

Decision last updated: 06 August 2018