Hubycki v Bunnings Group Ltd
[2023] WADC 70
•30 JUNE 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: HUBYCKI -v- BUNNINGS GROUP LTD [2023] WADC 70
CORAM: REGISTRAR JEYAMOHAN
HEARD: 21 JUNE 2023
DELIVERED : 30 JUNE 2023
FILE NO/S: CIV 1730 of 2021
BETWEEN: ANTONI JOSEF HUBYCKI
Plaintiff
AND
BUNNINGS GROUP LTD
Defendant
Catchwords:
Practice and procedure - Defendant's application for orders pursuant to Rules of the Supreme Court 1971 (WA) O 28 r 2(1), alternatively O 52 r 2 and O 52 r 3 for the defendant's expert to inspect and dissemble the hinges on the ladder - Discretion
Legislation:
Rules of the Supreme Court 1971 (WA), O 28 r 2(1), O 52 r 2, O 52 r 3
Result:
Application to inspect and dissemble the hinges on the ladder refused
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr M A Tedeschi |
| Defendant | : | Mr J I Campbell |
Solicitors:
| Plaintiff | : | SJB Legal |
| Defendant | : | DLA Piper Australia |
Case(s) referred to in decision(s):
Crossley v English[2020] WASC 118
Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345
Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254
Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480
REGISTRAR JEYAMOHAN:
Introduction and summary
By chamber summons filed 23 March 2023, the defendant seeks the following orders pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 28 r 2(1), alternatively O 52 r 2 & O 52 r 3:
(a)that the defendant's expert, Jeff Dunning of Exceed Consulting be permitted to inspect the locking mechanisms of a Syneco multi fold aluminium ladder Item No. 0860910 (the Ladder), including by disassembling the hinges on the Ladder;
(b)the inspection take place at the offices of Exceed Consulting at Unit 8, 7 Prindiville Drive, Wangara 6065;
(c)that the parties (including their experts and solicitors) be permitted to attend the inspection and record it;
(Application).
In broad terms, the plaintiff claims loss and damage as a result of injuries allegedly suffered on 24 June 2020 when the Ladder the plaintiff was standing on, and making use of, collapsed, causing the plaintiff to fall and suffer injury (Event). The plaintiff claims to have purchased the Ladder from the defendant's Maddington premises. The defendant denies that it breached duties to the plaintiff and says that the Ladder was free of defects, fit for purpose and of merchantable quality when it was sold by the defendant.
Both the plaintiff and the defendant have independently retained expert witnesses in respect of the matter. Each of these experts have already undertaken a physical inspection of the external components of the Ladder in question. In addition, a radiograph of the Ladder was undertaken on 10 August 2022 to obtain a view as to what was inside the Ladder. The defendant seeks to have this further inspection and testing undertaken to determine the remaining question of 'when did the Ladder become defective' in circumstances where there is no dispute on the expert evidence exchanged in this matter that the Ladder has a defect.
For the reasons that follow I find that the defendant's Application for orders that the defendant's expert be permitted to inspect the locking mechanisms of the Ladder, including by disassembling the hinges on the Ladder, should be dismissed.
Background
By writ of summons filed 19 May 2021, the plaintiff claims loss and damage against the defendant for personal injury allegedly suffered on 24 June 2020 as a result of the defendant's sale and supply of a purportedly defective and faulty ladder that collapsed in the course of use by the plaintiff.
Relevantly, the plaintiff in the plaintiff's amended statement of claim filed 8 December 2022 (ASOC), alleges that on or about 19 March 2019, the plaintiff attended the Maddington premises of the defendant and purchased the Ladder for the sum of $94.05. The plaintiff alleges that on 24 June 2020, whilst the plaintiff was standing on and making use of the Ladder at the plaintiff's home, the Ladder collapsed, causing the Event.
It is the plaintiff's position that the Ladder was not safe, of merchantable quality and fit for purpose and not of acceptable quality or reasonably fit for the disclosed purpose on account of a locking mechanism of the Ladder not functioning as intended and as necessary for the safe operation of the Ladder due to fouling of the locking block and interrupter plate of the said locking mechanism.[1] After the Event, the Ladder was provided to Cascade Forensic Engineering for examination and was the subject of a report generated by Mr Daniel C Simms dated 7 December 2020.[2]
[1] ASOC, par 10(d).
[2] ASOC, par 11.
The defendant in the defendant's defence to the ASOC filed 23 December 2022 denies the allegations in par 10 of the ASOC and says in answer to the plaintiff's claim that the Ladder was free of defects, fit for purpose and of merchantable quality when it was sold by the defendant.[3]
[3] Defence to Amended Statement of Claim, filed 23 December 2022, par 10 (Defence to ASOC).
Legal principles
The Application is brought pursuant to O 28 r 2(1), alternatively O 52 r 2 and O 52 r 3 of the RSC.
Order 28 r 2(1) is concerned with moveable physical objects: Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd.[4] As Kenneth Martin J held at [11]:
There is case authority in this court to support the legitimacy of an inspection of a large scale manufacturing plant including, if necessary, for the court to order a shutdown of a plant on the basis that it is a 'physical object for the purposes of RSC O 28': see West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (Unreported, WASC, Library No 980060, 17 February 1998) (White J).
[4] Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254 (Process Minerals).
Order 52 r 2(1) of the RSC provides for an order for preservation or inspection of any property but this must be on the application of any party to a cause or matter. Order 52 r 2(1) of the RSC relevantly provides that:
A Court may on the application of any party to a cause or matter make an order for the detention, custody, preservation or inspection of any property which is the subject matter of a cause or matter or as to which any question may arise therein.
Order 52 r 3(1) of the RSC provides that the court may for the purpose of enabling the proper determination of any cause or matter or of any question arising therein, make orders on terms for:
(a)the taking of samples of any property; or
(b)the making of any observation of any property; or
(c)the trying of any experiment on or with any property; or
(d)the observation of any process.
Kenneth Martin J considered the discretion to order inspection of the defendant's property and sampling conferred by O 52 r 3 in Process Minerals, where his Honour made the following observations of Chesterman J in Evans Deakin Pty Ltd v Orekinetics Pty Ltd:[5]
… The question is whether the court should exercise its discretion in favour of inspection. I think the true principle is that explained by Whitford J in Wahl:
'One must look at the evidence to see … whether or not it would be appropriate to make an order for inspection … One does not make orders for inspection save … where … it would be appropriate …'
The discretion conferred by the rule is a wide one. It should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it is proper to do so. It must be remembered that the rule exists to promote the efficient and economical conduct of litigation. If the result of an inspection would tend to bring about such a result the discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some countervailing circumstance. To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order. I do not think there is any benefit in using any more particular or pejorative adjective. It is no doubt true that an order for inspection of property will not be made unless there is some evidence that the plaintiff's rights are being infringed and that an inspection will facilitate proof of the claim. This, I expect, is all that is meant by saying there must be a substantial and genuine dispute. There are, of course, degrees of suspicion as well as of proof. It is pointless to resort to semantic differences and refuse inspection where there is 'mere suspicion' of an infringement, but allow it where there is 'strong suspicion' or 'proof' of it, even if the proof be weak. The discretion conferred … should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant's property.
[5] Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345 [19].
Kenneth Martin J also adopted the observation made by Chesterman J in Evans Deakin Pty Ltd v Orekinetics Pty Ltd that it is relevant to consider whether an inspection is likely to save time and costs in the long run.[6]
[6] Process Minerals [57].
Smith J in Crossley v English[7] had regard to Kenneth Martin J's approach in Process Minerals to assess the parties' pleaded cases, together with the observations made by Chesterman J in Evans Deakin Pty Ltd in determining whether the discretion to order inspection of the defendant's property by the plaintiffs' experts and sampling by them should be exercised:
(a)whether inspection and/or sampling would assist in determining the plaintiffs' claim for breach of the Act, and/or their claim in negligence as pleaded in the statement of claim, or put another way as stated by Chesterman J, whether there is some evidence that the plaintiffs' rights are being infringed and that an inspection will facilitate proof of the claim; and
(b)whether an inspection is likely to save time and costs in the long run.
[7] Crossley v English[2020] WASC 118 [34].
It is no bar to making these types of orders that the testing would destroy the property being tested.[8]
[8] Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480, 485 (Rutile Mining).
The evidence relied upon
The defendant relies on two affidavits in support of its Application. The first affidavit is deposed by Rachel Angela Gopal, a solicitor employed by DLA Piper, solicitors for the defendant with conduct of the matter under supervision, sworn 23 March 2023 (Gopal Affidavit). The second affidavit is deposed by Ronald Jeffrey Dunning, a chartered professional engineer engaged by the defendant's solicitors on behalf of the defendant as its expert in these proceedings sworn 23 March 2023 (Dunning Affidavit).
The plaintiff relies on two affidavits in opposition to the Application. The first affidavit is deposed by Daniel Christopher Simms, a mechanical engineer engaged by the solicitors for the plaintiff to examine and provide an opinion as to the operation of the Ladder sworn 28 April 2023 (Simms Affidavit). The second affidavit is deposed by Antoni Josef Hubycki, the plaintiff in these proceedings, sworn 31 May 2023 (Hubycki Affidavit).
I have carefully considered the written submissions filed on behalf of each party, and the submissions made by both counsel for the defendant and counsel for the plaintiff, during the hearing of the Application on 21 June 2023.
The defendant's position
Gopal Affidavit
Ms Gopal sets out the parties' positions as pleaded at pars 4 to 7 of the Gopal Affidavit. Ms Gopal refers to the following allegations in the ASOC: that on or about 19 March 2019 [2020] the plaintiff purchased the Ladder; that on 24 June 2020, whilst the plaintiff was standing on and making use of the Ladder, the Ladder collapsed, causing the plaintiff to fall and suffer injury; and that the defendant failed to warn the plaintiff that the Ladder was 'unsafe and defective and not fit for use' (Plaintiff's Allegations).[9] The defendant denies the Plaintiff's Allegations.[10]
[9] Gopal Affidavit, par 4.
[10] Gopal Affidavit, par 5.
Ms Gopal deposed that it is her belief that it is a matter in question in the action: (a) as to whether the Ladder and specifically, the locking mechanism contained therein was defective and not fit for use; and (b) if so, whether the locking mechanism on the Ladder was defective at the time of purchase or alternatively, whether it became defective through the use/misuse by the plaintiff after purchase.[11]
Dunning Affidavit
[11] Gopal Affidavit, par 6.
The defendant engaged Jeff Dunning of Exceed Consulting as its expert.[12] On or about 14 July 2022, with the consent of the plaintiff, Mr Dunning attended the plaintiff's residence for a physical inspection of the Ladder.[13] On or about 14 July 2022, with the plaintiff's consent, a radiograph of the Ladder was completed by GFS NDT.[14]
[12] Gopal Affidavit, par 7.
[13] Gopal Affidavit, par 8.
[14] Gopal Affidavit, par 9.
By email dated 15 August 2022, Mr Dunning wrote to the solicitors for the defendant advising that:[15]
We have radiographed the suspect hinge on the subject ladder and there appears to be an issue with the locking pin not engaging on one side. The cause of this cannot be determined from the radiograph. It will now be necessary to disassemble the hinges on the subject ladder to determine what is causing this issue.
[15] Gopal Affidavit, pars 11 and 12; Attachment 'RAG1'.
On 15 August 2022, the solicitors for the defendant wrote to the solicitors for the plaintiff requesting disassembly of the Ladder in the presence of both parties' experts with the disassembly to be filmed and photographed.[16] On 17 August 2022, Mr Steven Blyth, the solicitor for the plaintiff, wrote to the solicitors for the defendant declining the request for disassembly of the Ladder on the following basis:[17]
1.We have not received all the radiographs taken by Mr. Dunning - can we please have all that were taken, rather than 2 only.
2.Of the 2 radiographs provided to us, that with the text 'alleged failed side of ladder straightened' clearly shows a faulty mechanism in that there is a gap (in effect a black rectangle) which, by and large, should not exist if the locking mechanism works properly.
3.Our expert has already provided in his report, at figure 6, and by way of a video, his testing and operating of the mechanism, and that it does not lock.
4.If we disassemble the mechanism, the plaintiff may not be able to show a trial Judge, the faulty mechanism as it was when injury was suffered and be able to demonstrate the failure of the locking mechanism.
5.Is it for the purposes of this matter necessary to determine the precise cause of failure, if the failure has now been affirmed by the radiographs? - establishing the precise cause of failure we see as an issue between the defendant/the third party and the manufacturer of the faulty party.
[16] Gopal Affidavit, pars 13 and 14; Attachment 'RAG2'.
[17] Gopal Affidavit, pars 15 and 16; Attachment 'RAG3'.
On 18 August 2022, Mr Jock Campbell, the solicitor for the defendant sent a further email to the solicitors for the plaintiff stating as follows 'Regardless of whether a defect is shown in the radiographs, the precise nature of the defect is plainly material as, for example (without any intended limitation), it could have occurred after the sale of the ladder, due to the way it was stored, used, handled'.[18] On 8 December 2022, the solicitors for the plaintiff wrote to the solicitors for the defendant declining the defendant's request for disassembly of the Ladder and stated as follows:[19]
We refer to previous correspondence and have now sought and obtained the advice of barrister Marco Tedeschi concerning the issue of liability, and your request on 15 August 2022 to disassemble the hinges of the subject ladder.
Our position is that disassembly would in fact constitute destruction, in whole or in part, of the relevant hinge, which will preclude the Plaintiff from, at trial, demonstrating the failure of the hinge and relevant locking mechanism at the time of the relevant event, to the prejudice of the plaintiff.
Put simply, our client will require the Defendant to admit liability if it wishes to investigate the cause of the ladder failing in the manner you propose.
The radiographic scan that has been undertaken, respectfully demonstrates the shortcomings in the design and/or manufacture, and reinforces the Plaintiff's position on liability.
We are proceeding therefore on the basis that liability will remain denied, and therefore in order to enter the matter for trial, other necessary steps must be undertaken.
…
[18] Gopal Affidavit, pars 17 and 18; Attachment 'RAG4'.
[19] Gopal Affidavit, pars 19 and 20; Attachment 'RAG5'.
On 19 January 2023, Ms Gopal sent a letter to the plaintiff's solicitor requesting disassembly of the Ladder.[20] On 9 February 2023, the defendant's solicitors wrote declining the defendant's request for inspection because of the destructive consequences to the Ladder.[21]
[20] Gopal Affidavit, par 21; Attachment 'RAG6'.
[21] Gopal Affidavit, par 23; Attachment 'RAG7'.
Mr Dunning deposed that he is a senior materials engineer at Exceed Consulting and a chartered professional engineer having completed a Bachelor's degree qualification in metallurgy.[22] Since 2003, Exceed Consulting has provided metallurgical failure analysis and testing services.[23] On or about March 2023, the defendant's solicitors, DLA Piper on behalf of the defendant engaged Mr Dunning as its expert in these proceedings.[24]
[22] Dunning Affidavit, pars 1 and 3.
[23] Dunning Affidavit, par 4.
[24] Dunning Affidavit, par 5.
Mr Dunning deposed that on 14 July 2022 he attended the plaintiff's residence for a physical inspection of the Ladder. The plaintiff's expert, Daniel Simms of Cascade Forensic Engineering and solicitor, Stephen Blyth of SJB Legal also attended that inspection.[25] The physical inspection which he undertook involved an examination of the external components of the Ladder and did not involve an inspection of its internal components.[26] Mr Dunning deposed that during the inspection, he stated to Mr Simms words to the effect that a radiograph of the Ladder should be undertaken to have a complete view as to what was inside the Ladder and that Mr Simms responded with words to the effect that he had no issue with a radiograph being taken.[27] A radiograph of the Ladder was completed by GFS NDT on or about 10 August 2022.[28] Mr Dunning deposed that having reviewed the radiograph, it is his opinion that there is an issue with the locking pin on the hinge of the alleged failed side of the Ladder.[29]
[25] Dunning Affidavit, par 6.
[26] Dunning Affidavit, par 7.
[27] Dunning Affidavit, par 8.
[28] Dunning Affidavit, par 9; Attachment 'RJD1'.
[29] Dunning Affidavit, par 11.
Mr Dunning deposed that based on his experience, the alleged failed hinge could be as a result of a number of reasons including a manufacturing defect, ordinary wear and tear or not being operated properly by its user.[30] Mr Dunning deposed that in his opinion, it is necessary to disassemble the hinges on the Ladder to determine the cause or causes of the issue with the locking pin on the Ladder.[31]
[30] Dunning Affidavit, par 12.
[31] Dunning Affidavit, par 13.
As to the process for disassembly of the hinges on the Ladder Mr Dunning deposed as follows:[32]
14.1I am able to carry out the disassembly process at Exceed Consulting's premises located in Wangara;
14.2Firstly, each of the rivets from the alleged failed side of the Ladder and the opposite side of the Ladder will need to be removed;
14.3The removal of rivets may be undertaken by drilling them out of the Ladder;
14.4Once the rivets are removed, I will then need to examine the internal components of the locking mechanism on both the alleged failed side and the opposite failed side for comparison; and
14.5The examination of the internal components of the locking mechanism will involve only a visual examination of its parts.
[32] Dunning Affidavit, par 14.
Mr Dunning deposed that following completion of the inspection, it will not be possible to reconnect the rivets to the Ladder and the Ladder will be inoperable.[33] Mr Dunning has no objection to Mr Simms or the plaintiff's solicitor being present during the inspection or for the inspection to be video recorded.[34]
[33] Dunning Affidavit, par 15.
[34] Dunning Affidavit, par 16.
The defendant denies that it breached duties to the plaintiff and says that the Ladder was free of defects, fit for purpose and of merchantable quality when it was sold by the defendant.[35] The defendant's position is that to succeed in his Australian Consumer Law in sch 2 of the Competition and Consumer Act 2010 (Cth) (ACL (Cth)) and the Sale of Goods Act 1985 (WA) (SGA) claims against the defendant, the plaintiff must prove the existence of a defect in the Ladder at the time of his accident, the fact that injury has been suffered and a causal connection between the defect and the injury. Counsel for the defendant submits that if the above is established, the onus shifts to the defendant to prove on the balance of probabilities that the defect in the Ladder did not exist at the time of its sale by the defendant. On this basis, it is the defendant's position that there are two primary questions to be determined in the action:[36]
(a)Was the Ladder relevantly defective at the time of the [Event]?
(b)If so, when did the Ladder become defective?
[35] Defence to ASOC, par 10.
[36] Defendant's outline of submissions, dated 17 May 2023, par 1.5.
In this context, the defendant submits that a radiograph of the Ladder's hinges was also undertaken in the presence of both of the parties' respective experts on 10 August 2022. Counsel for the defendant submits that both experts agree that the locking mechanism on the left side of the Ladder does not work properly and so has some form of a defect. On this basis, counsel for the defendant submits that, the first question posed of 'Was the Ladder relevantly defective at the time of the [Event]?' has been answered. The defendant maintains, based upon that expert evidence, that it is only possible to determine when and how the Ladder became defective if the hinge is disassembled.
Counsel for the defendant submits that there is no dispute on the expert evidence exchanged in this matter that the Ladder has a defect that could have materially contributed to the plaintiff's accident. The defendant maintains, based upon that expert evidence, that it is only possible to determine when and how the Ladder became defective if the hinge is disassembled and relies on the evidence of Mr Dunning in this regard.
The defendant's position is that the assertion that the hinge being disassembled would prejudice the plaintiff cannot be sustained in circumstances where:
(a)The plaintiff already has its expert evidence.
(b)There is no dispute on the expert evidence that the Ladder has a defect that could have materially contributed to the accident.
(c)To the extent that a demonstration of the defective operation of the Ladder would be beneficial at trial, the plaintiff could prepare video evidence prior to the hinge being disassembled.
(d)A live demonstration would have no greater probative value.
Counsel for the defendant submits that in the circumstances, where the disassembly of the hinge would be of significant probative value, and the act of disassembly would cause no relevant prejudice, this is a clear case where the court should exercise its discretion to make the orders sought.
The plaintiff's position
Simms Affidavit
Mr Simms deposed that he is a mechanical engineer and a director of Cascade Forensic Engineering Consultants Pty Ltd and has been engaged by the solicitors for the plaintiff to examine and provide an opinion as to the operation of the Ladder.[37] A copy of Mr Simms' report on the folding ladder locking mechanism dated 7 February 2020 is attached to the Simms Affidavit.[38]
[37] Simms Affidavit, par 1.
[38] Simms Affidavit, par 2; Annexure 'A'.
Mr Simms deposed that he has been provided with, and has read the defendant's chamber summons dated 23 March 2023 the subject of the Application; the Gopal Affidavit and the Dunning Affidavit.[39] Addressing the contents of the Dunning Affidavit, Mr Simms deposed as follows:[40]
[39] Simms Affidavit, par 3.
[40] Simms Affidavit, par 4.
(a)The radiographs of the hinges of the ladder and annexure 'RJD‑1' of the Dunning affidavit, and particularly the first radiograph of the alleged failed side of ladder straightened, demonstrates at the top of that photo that the locking mechanism has not, when that radiograph was taken, engaged correctly to lock the hinge in position for such mechanism to work properly.
(b)From my examination thus far of the ladder, and the relevant hinges, and from the radiographs referred to in the Dunning affidavit, I am not aware, or it is not otherwise apparent to me, that ordinary wear and tear has arisen or had arisen to the relevant hinge/locking mechanism on the date the Plaintiff claims to have suffered injury and further, if the Plaintiff had operated the ladder and the relevant locking mechanism as directed, it would not have been apparent to the Plaintiff that the locking mechanism was defective and would have failed even if the locking mechanism was operated properly by the Plaintiff.
(c)As to paragraph 6 of the Dunning affidavit, the inspection of 14 July 2022 referred to therein, was not attended by Steven Blyth, but by a solicitor known to me as 'Thomas' from the office of SJB Legal.
(d)As to paragraphs 9-13 inclusive of the Dunning affidavit, I was present when the radiographs of the ladder were taken, but I say the number of radiographs taken was not limited to the 2 produced at annexure 'RJD-1' of the Dunning affidavit, but approximately 5 radiographs were taken. As and when the radiographs were taken, the radiographer said out loud to me and Mr. Dunning words to the effect that there was an observable difference in the form of the locking wedge, which is the white rectangle under the black square, with the black square being the void into which the wedge is supposed to engage.
(e)The locking wedge is manufactured by punching or shearing a piece of steel, and it appears like a dag, or malformed edge has formed in that process.
(f)I purchased an exemplar ladder locking hinge mechanism identical to the alleged failed locking mechanism in question, and offered that exemplar and working hinge mechanism to Mr. Dunning for examination and/or to also be the subject of radiographs, so that he could compare the radiographs of that exemplar locking mechanism (which functioned properly and locked as is designed to do), but Mr. Dunning declined that offer (and thus the opportunity to radiograph the examplar hinge and compare images of an identical locking mechanism properly engaged, to the photo/image being the first page of annexure 'RJD-1').
(g)The first image of 'RJD-1' of the alleged failed side of ladder straightened, at the top of that image shows a black rectangle, which essentially demonstrates the locking mechanism to not travel sufficiently to engage and properly lock the hinge into a fixed position.
(h)As to paragraph 14 of the Dunning affidavit, I have no issue with the process for disassembly of the hinge in question, but I say that the radiographs at 'RJD-1' already demonstrate the failure of the relevant hinge/locking mechanism as explained in subparagraph (e) above.
(i)As to paragraph 15 of the Dunning affidavit, I say that the process of disassembly proposed by Dunning will effectively constitute destructive testing of the relevant hinge/locking mechanism, because it will not be possible to reconnect or otherwise re-assemble the relevant alleged failed hinge/locking mechanism to the state it was on the date the Plaintiff suffered injury or on the dates I examined that mechanism.
(j)Should liability remain denied by the Defendant, I expect to attend at trial and demonstrate the failure of the relevant hinge/locking mechanism. I would expect during my examination or cross examination or in response to questions from the trial Judge, to demonstrate how the ladder functions in various positions and how the relevant locking mechanism operates (or is supposed to operate) in several different positions, including the alleged position it was in when it allegedly failed.
(k)The process for disassembly proposed by the Defendant will not enable me to fully explain and demonstrate the functions of the ladder and the relevant alleged failed hinge, including the position the ladder and hinge was in at the time it allegedly failed and cause the Plaintiff injury.
(l)Annexed hereto and marked 'B' are images of the relevant hinges of the relevant ladder taken by me. The hinges, including the hinge relating to the alleged defective locking mechanism, do not need to be disassembled in order to inspect the relevant locking mechanism. The images annexed and marked 'B' demonstrate that the internal components of the hinges are completely accessible and able to be inspected without disassembly of the hinges.
Hubycki Affidavit
Mr Hubycki, the plaintiff, deposed that he purchased the Ladder on or about 19 March 2019 at Bunnings' Maddington premises for the sum of $94.05.[41] The Ladder was used a couple of times by Leonie Nicholls an employee of the plaintiff at the AAAA Trade Show from 4 ‑ 6 April 2019 for which it was purchased.[42] Mr Hubycki deposed as follows:[43]
… I recall passing the banners to Leonie when the banners were going up on set up day April 3rd, 2019. I cannot remember if I was present to help Leonie when the banners came down. I was present on the stand as it was pack up time. There was no issue with the use of the ladder.
[41] Hubycki Affidavit, par 1.
[42] Hubycki Affidavit, par 2.
[43] Hubycki Affidavit, par 2.
After the trade show the Ladder was safely stored in the plaintiff's warehouse and not used again until 24 June 2020.[44] Mr Hubycki deposed that on the day of the fall, he used the Ladder that day for the first time. Mr Hubycki deposed that he set up the Ladder and went down a couple of times to put up masking tape, moved the Ladder and went to go up when the Ladder collapsed.[45] Mr Hubycki deposed that at the time of his injury, the Ladder was in the same condition as he had purchased it in March 2019.[46]
[44] Hubycki Affidavit, par 3.
[45] Hubycki Affidavit, par 4.
[46] Hubycki Affidavit, par 5.
On 13 July 2022, Mr Hubycki instructed his solicitors to send an open outline of the facts of what occurred on 24 June 2020 as to the circumstances of Mr Hubycki's use of the Ladder and injury for the purposes of expert conferral as to the alleged faulty Ladder.[47] On 13 July 2022, Mr Hubycki's solicitors emailed the outline of facts and a photograph of the Ladder to DLA Piper, the solicitors for the defendant.[48] On 13 July 2022, the solicitors for the defendant communicated by email to SJB Legal confirming inspection of the Ladder on 14 July 2022.[49]
[47] Hubycki Affidavit, par 6.
[48] Hubycki Affidavit, par 7; Annexure 'AJH-1'.
[49] Hubycki Affidavit, par 9; Annexure 'AJH-2'.
Counsel for the plaintiff submits that the defendant has not alleged in its Defence to the ASOC that any defect with the ladder was caused by:
(a)wear and tear; or
(b)any misuse of the ladder by the plaintiff.
The plaintiff accepts the defendant's submission that to succeed in his ACL (Cth)/SGA claims against the defendant, the plaintiff must prove the existence of a defect in the Ladder at the time of his accident, the fact that injury has been suffered and a causal connection between the defect and the injury and that if the above is established, the onus shifts to the defendant to prove on the balance of probabilities that the defect in the Ladder did not exist at the time of its sale by the defendant. On this basis, the plaintiff accepts the defendant's position that there are two primary questions to be determined in the action being (a) Was the Ladder relevantly defective at the time of the Accident?; (b) If so, when did the Ladder become defective?
Counsel for the plaintiff submits that there is no power in O 28 r 2 to order destructive testing but such testing can fall within O 52 r 2 and O 52 r 3. The plaintiff opposes the orders sought by the defendant in the Application on the grounds that:[50]
[50] Plaintiff's outline of submissions filed 25 May 2023, par 4.
(a)The denial by the Defendant that it breached its duties to the Plaintiff and the plea that the ladder was free from defects, fit for purpose and of merchantable quality when it was sold by the Defendant are not substantial or genuine denials and cannot be maintained in light of the two experts engaged by the parties both concluding that the ladder was defective, and the concession by the Defendant's solicitors that the ladder was defective.
(b)The Defendant joined as a third party the manufacturer of the ladder. The manufacturer's insurer has taken over the conduct of the defence of the Defendant. The Plaintiffs claim is against the supplier of the ladder and the Defendant has not taken any steps to pursue the Third-party claim against the manufacturer of the ladder.
(c)The Defendant's expert, Mr Jeff Dunning, does not give any evidence that supports a finding that the ladder was properly manufactured or provide any evidence to substantiate an allegation of wear and tear and/or that the ladder was not being operated properly by its user.
(d)In those circumstances, disassembly and destruction of the ladder in the manner sought is not necessary and does not assist in the resolution of any matter in issue or in the efficient conduct of the litigation.
(e)The parties have already co-operated to allow a joint inspection of the ladder which was video taped and is the subject of reports based upon a statement of facts which did not allege any wear and tear of the ladder and/or that the ladder was not being operated properly by its user.
(f)The Plaintiff will be able to give evidence at trial as to how often and the way in which he used the ladder, and the Defendant has had the opportunity to interrogate about those matters but has not.
(g)The best evidence of how the ladder was being used and when it failed will be the evidence at trial of a demonstration by the Plaintiff and/or his expert to establish those matters. It is a significant forensic disadvantage to order the destruction of the ladder and infringement of the Plaintiff rights as the owner of the ladder.
(h)In the exercise of its discretion the Court should decline to make the order because it has not been shown that it is an appropriate order to make.
The plaintiff relies on the Simms Affidavit to respond to the matters set out in the Dunning Affidavit in respect of the proposed destruction of the Ladder. The plaintiff submits that most of the cases referred to by the defendant have ordered inspection and testing but not destructive testing of property. Further, no authority has been cited by the defendant that O 28 r 2 of the RSC expressly permits destructive testing.
Analysis
The plaintiff's pleaded case is that the whilst the plaintiff was standing on and making use of the Ladder, the Ladder collapsed, causing the plaintiff to fall and suffer injury. The plaintiff, at par 10 of the ASOC pleads that the defendant failed to warn the plaintiff that the Ladder was 'unsafe and defective and not fit for use'.
The defendant at pars 4, 9 and 10 of the Defence to ASOC denies the plaintiff's allegations. The defendant denies that it breached duties to the plaintiff and says that the Ladder was free of defects, fit for purpose and of merchantable quality when it was sold by the defendant.[51]
[51] Defence to ASOC, par 10.
The defendant submits that to succeed in his ACL (Cth)/SGA claims against the defendant, the plaintiff must prove the existence of a defect in the Ladder at the time of his accident, the fact that injury has been suffered and a causal connection between the defect and the injury. The defendant submits that if the above is established, the onus shifts to the defendant to prove on the balance of probabilities that the defect in the Ladder did not exist at the time of its sale by the Defendant.
Both the plaintiff and the defendant have independently retained expert witnesses in respect of the matter. On 14 July 2022, the defendant's expert, Mr Dunning undertook a physical examination of the external components of the Ladder. At Mr Dunning's suggestion (said to the plaintiff's expert, Mr Simms) a radiograph of the Ladder was undertaken by GFS NDT on 10 August 2022 to have a complete view as to what was inside the Ladder. Mr Dunning's evidence is that having reviewed the radiograph, it is his opinion that there is an issue with the locking pin on the hinge of the alleged failed side of the Ladder.[52]
[52] Dunning Affidavit, par 11.
Mr Dunning's opinion is that it is necessary to now disassemble the hinges on the Ladder to determine the cause or causes of the issue with the locking pin on the Ladder. As to the possible cause or causes of the alleged failed hinge, Mr Dunning's evidence is that based on his experience, this could be as 'a result of a number of reasons including a manufacturing defect, ordinary wear and tear or not being operated properly by its user (emphasis added)'.[53] Significantly, Mr Dunning's evidence is that 'following completion of the proposed inspection, it will not be possible to reconnect the rivets to the Ladder and the Ladder will be inoperable (emphasis added)'.[54]
[53] Dunning Affidavit, par 12.
[54] Dunning Affidavit, par 15.
The plaintiff's position is that the defendant's defence, as presently pleaded, does not plead either 'wear and tear' of the Ladder or that the plaintiff misused the Ladder in some way. The plaintiff's submission is that the plaintiff will seek to rely on the Ladder at trial to demonstrate to the court how the Event occurred. This is reinforced by the evidence of the plaintiff's expert, Mr Simms, who has deposed that should liability remain denied by the defendant, he expects to attend at trial and demonstrate the failure of the relevant hinge/locking mechanism, and during this process, would expect to demonstrate 'how the ladder functions in various positions and how the relevant locking mechanism operates (or is supposed to operate) in several different positions, including the alleged position it was in when it allegedly failed'.[55] Mr Simms' evidence is that 'the process for disassembly proposed by the Defendant will not enable me to fully explain and demonstrate the functions of the ladder and … hinge was in at the time it allegedly failed and caused the Plaintiff injury'.[56]
[55] Simms Affidavit, par 4.
[56] Simms Affidavit, par 4.
Importantly, the evidence of Mr Simms is that 'the hinges, including the hinge relating to the alleged defective locking mechanism, do not need to be disassembled in order to inspect the relevant locking mechanisms' and that in his opinion '… the internal components of the hinges are completely accessible and able to be inspected without disassembly of the hinges'.[57]
[57] Simms Affidavit, par 4.
Whilst Mr Simms deposed that he has 'no issue with the process for disassembly of the hinge in question', his opinion is that 'the radiographs at 'RJD-1' already demonstrate the failure of the relevant hinge/locking mechanism'.[58]
[58] Simms Affidavit, par 4.
Having read the defendant's chamber summons the subject of the Application and the Gopal Affidavit and the Dunning Affidavit, Mr Simms further deposed that:[59]
… I am not aware, or it is not otherwise apparent to me, that ordinary wear and tear has arisen to the relevant hinge/locking mechanism on the date the Plaintiff claims to have suffered injury and further, if the Plaintiff had operated the ladder and the relevant locking mechanism as directed, it would not have been apparent to the Plaintiff that the locking mechanism was defective and would have failed even if the locking mechanism was operated properly by the Plaintiff.
Mr Simms evidence is that 'the locking wedge is manufactured by punching or shearing a piece of steel, and it appears like a dag, or malformed edge has formed in that process'.[60]
[59] Simms Affidavit, par 4.
[60] Simms Affidavit, par 4.
Mr Simms also deposed to having offered to Mr Dunning,[61]
an exemplar ladder locking hinge mechanism identical to the alleged failed locking mechanism in question, and offered that exemplar and working hinge mechanism to Mr. Dunning for examination and/or to also be the subject of radiographs, so that he could compare the radiographs of that exemplar locking mechanism (which functioned properly and locked as is designed to), but Mr. Dunning declined that offer (and thus the opportunity to radiograph the exemplar hinge and compare images of an identical locking mechanism properly engaged, to the photo/image being the first page of annexure 'RJD-1'.
[61] Simms Affidavit, par 4.
That this exercise will result in the Ladder becoming inoperable after this further testing is accepted by the parties' experts. However, the defendant on its own submission seeks to have this testing undertaken to determine the remaining question of 'when did the Ladder become defective'. The defendant's position is that the interests of justice and positive case management favour the determination of the making of the orders sought in circumstances where the defendant would otherwise be prevented from defending the claim against it, including in order to properly plead its defence. The defendant submits that it is no bar to making these types of orders that the testing would destroy the property being tested.[62]
[62] Rutile Mining (485) (Philp J with whom Matthews and Wanstall JJ agreed) considering an equivalent provision in that jurisdiction.
It is in this overall context that I turn my mind to the question of whether the court should exercise its discretion in favour of inspection. Whilst the discretion conferred by O 52 r 3 of the RSC is a wide one, as observed by Kenneth Martin J in Process Minerals in following the observations of Chesterman J in EvansDeakin Pty Ltd 'The order should not be made unless, on the material before the court, it is proper to do so'.[63] Permitting the disassembly of the hinges on the Ladder in the manner proposed by Mr Dunning will mean that it will not be possible to reconnect the rivets to the Ladder and the Ladder will, on Mr Dunning's own evidence, thereafter be inoperable.
[63] Evans Deakin Pty Ltd [19].
The plaintiff's position is that disassembly would in fact constitute destruction, in whole or in part, of the relevant hinge, which will preclude the plaintiff from, at trial, demonstrating the failure of the hinge and relevant locking mechanism at the time of the relevant event, to the prejudice of the plaintiff. The plaintiff's position is supported by the matters deposed to in detail by the plaintiff's expert, Mr Simms in the Simms Affidavit.
In my view, the question of the plaintiff seeking to preserve the Ladder for the purposes of trial is a significant one in circumstances where there remains the possibility, on the defendant's expert's own evidence relied on in support of the Application, that a cause of the alleged failed hinge could include the Ladder not being operated properly by its user.[64] Permitting the disassembly of the hinges on the Ladder in the manner proposed by Mr Dunning will mean that it will not be possible to reconnect the rivets to the Ladder and the Ladder will, on Mr Dunning's own evidence, thereafter be inoperable.
[64] Dunning Affidavit, par 12.
Given this question of use, the need to preserve the Ladder for the purposes of demonstration or alternative testing, remains very much a live issue particularly in circumstances where liability remains denied by the defendant.
Conclusion
Weighing the diverse and competing considerations which have been raised by this Application, I am not persuaded that the further inspection and testing orders as are now sought by the defendant at this time are warranted.
Here, the inspection is being sought not to facilitate proof of the plaintiff's claim, but the defendant's defence in respect of matters that are not yet the subject of the defendant's case. Granting the orders sought and allowing the further testing proposed by the defendant's expert, Mr Dunning will have the certain outcome of the Ladder, on Mr Dunning's own evidence, thereafter becoming inoperable in circumstances where the plaintiff seeks to rely on the Ladder at trial and the evidence of the plaintiff's expert, Mr Simms is that he expects to rely on the Ladder for the purposes of demonstration at trial. There is also the possibility of the proposed further inspection and testing being undertaken using an exemplar ladder locking hinge mechanism identical to the alleged failed locking mechanism and this would have the effect of preserving the Ladder for the purposes of any trial.
Additionally, I am of the view that whilst the Full Court of the Supreme Court of Queensland in Rutile Mining held that the rules relating to the inspection of testing of property did extend to an order that could result in the destruction of the sample in question, in that case, the court determined that the judge's decision at first instance not to exercise any discretion he may have had to make the order sought should not be interfered with (that is the order for destruction was in fact not made).
I am not satisfied that the inspection if ordered is likely to save time and costs in the long run. It could in fact have the reverse effect of there being further speculation as between the parties on any number of matters in respect of the plaintiff's pleaded case.
Orders
Accordingly, I propose to make the following orders:
1.The defendant's Application is dismissed.
2.The defendant pay the costs of the Application, such costs to be taxed if not agreed.
3.Within seven days of the making of these orders, the parties confer with a view to providing the court with a proposed minute of directions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
29 JUNE 2023
Hubycki v Bunnings Group Ltd [2023] WADC 70
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