Lawrence v Mauk

[2010] WADC 194

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   LAWRENCE -v- MAUK [2010] WADC 194

CORAM:   EATON DCJ

HEARD:   22 DECEMBER 2010

DELIVERED          :   24 DECEMBER 2010

FILE NO/S:   CIV 3836 of 2009

BETWEEN:   ANDREW LAWRENCE

Plaintiff

AND

SEAN ROBERT MAUK
Defendant

Catchwords:

Practice and procedure - Application for leave to amend defence - Trial imminent - Relevant principals

Legislation:

Civil Liability Act 2002

Result:

Leave to amend as proposed

Representation:

Counsel:

Plaintiff:     Mr T P Heard

Defendant:     Mr D M McKenna

Solicitors:

Plaintiff:     Bradford & Co

Defendant:     Jarman McKenna

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

1. EATON DCJ:  By writ of summons filed on 18 December 2009 the plaintiff sued the defendant claiming, by endorsement, damages arising from personal injuries suffered by the plaintiff on 6 January 2009 at Brighton Beach, Scarborough said to be the result of the defendant's negligence.

2. On 3 March 2010 the plaintiff filed a statement of claim asserting that on 6 December 2009 he was a swimmer in the water at Brighton Beach and that the defendant, at the same time, was operating a kite‑board nearby.  The defendant's kite‑board, asserts the plaintiff, struck him causing him injury and pain.  The plaintiff particularises both and asserts that the defendant owed the plaintiff a duty of care to operate his kite‑board in a safe and confident manner, to keep a lookout for persons swimming in the water and to take all reasonable measures to avoid and prevent the kite‑board from colliding with swimmers.  The plaintiff then particularised the alleged negligence of the defendant and the treatment subsequently required by him.

3. On 23 June 2010 the defendant filed a defence admitting that as a result of the accident the plaintiff suffered injuries.  Specifically, the defendant denies the allegation of negligence and that pursuant to the Civil Liability Act 2002 the defendant did not owe a duty of care to the plaintiff as he was engaged in a recreational activity and was warned in respect of the risk that kite‑surfers would be present in the area.  The defendant provides particulars of that assertion.

4. On 23 July 2010 the plaintiff provided particulars of damages and on 29 July 2010 entered the matter for trial.

5. A pre‑trial conference on 28 September 2010 failed to resolve the matter and, in consequence, it was referred to a listing conference on 18 October.  That conference was adjourned to 8 November 2010.  The action was then listed for trial on 13, 14 and 15 January 2011.  On 17 December 2010 a registrar extended the trial dates by an additional day at the request of a party.

6. On 20 December 2010 the defendant, by chamber summons, applied for leave to amend his defence in accordance with a minute of proposed amended defence to assert, inter alia, that on the day of the plaintiff's accident there were signs designating the area as a kite‑surfing area, that the wind speed at the location was high with rips, large waves and foam in a choppy ocean and a number of pictorial 'no swimming' signs placed along the beach including one in the vicinity of where the accident occurred.

7. Further, the defendant seeks to assert that, at the time, the plaintiff was engaged in a dangerous recreational activity and seeks to particularise that assertion to the effect that the dangerous recreational activity was swimming in the area where the accident occurred in circumstances where there were signs erected indicating that no swimming should occur in that area, that the plaintiff was aware that kite‑surfers were operating when he began swimming, that the plaintiff was aware that windsurfers were operating in the area when he commenced to swim, that the wind speed at the location was high, that there were strong rips, large and foaming waves and a choppy sea.

8. The application of the defendant is supported by two affidavits sworn by Eve Rae Andrews, a solicitor in the employ of the defendant's solicitors, assisting the practitioner who has the conduct of the matter.  She deposes in the first of those affidavits sworn 20 December 2010 that the firm has recently instructed counsel, that counsel has reviewed the defence and formed the view that the defence should be amended to plead that the defendant is not liable to the plaintiff by reason of the operation of s 5H and s 5O of the Civil Liability Act 2002 in that, at the time of the accident, the plaintiff was engaged in a dangerous recreational activity.  She deposes that counsel has formed the view that the defendant is not liable to the plaintiff by the operation of s 5P of that Act as the plaintiff was aware of the inherent risk of swimming in an area frequented by kite‑surfers and had been warned to that effect.  The deponent asserts that the proposed amendments do not change the nature or substance of the action or the defendant's position, the majority of the proposed amendments raising issues of law not requiring any further evidence.

9. In the second affidavit relied upon dated 21 December 2010 the deponent refers to a document said to be compiled by the plaintiff titled 'Marine Incident Report' a true copy of which is annexed to her affidavit.  That report, she says, formed part of the defendant's discovery.  The plaintiff's solicitor subsequently obtained a copy of it.  The document appears to be in a standard format provided by the Department of Planning and Infrastructure.  It is dated 8 January 2009 and apparently signed by the defendant.  He has ticked certain boxes in the compartment entitled 'Environmental Conditions'.  The report includes copies of photographs taken by the defendant on 8 January 2009 depicting signs erected at Brighton Beach at that time.  The deponent says that on 14 December 2009 her firm wrote to the solicitors for the plaintiff enclosing a number of colour photographs depicting those signs and enclosing a minute of proposed amended defence, seeking consent to its filing.  The defendant's solicitors sought a reply by 17 December 2010.

10. The plaintiff has filed, in opposition to the defendant's application, an affidavit by Timothy Philip Heard, a solicitor in the employ of the plaintiff's solicitors.  That affidavit annexes a letter written by the plaintiff's solicitors to the defendant's solicitors. The letter, dated 21 December 2010, asserts that the plaintiff has not had sufficient time to consider the amendments and that counsel is unavailable to argue the chambers application.  The letter also asserts that the amendments raise completely new issues not raised previously on pleadings.  In particular, reference is made to the claims that there were signs delineating the area as a 'kite‑surfing area' and assertions as to wind speeds and water conditions.  The plaintiff's solicitors complained that those issues had not been raised previously in the pleadings and are present as new issues.

11. The relevant rules provide that every pleading must contain a statement in summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved.  The statement must be as brief as the nature of the case admits.

12. The defendant must seek leave to amend.  The second affidavit sworn in support of the application refers to the document titled 'Marine Incident Report' dated 8 January 2009.  That has, I assume, been in the possession of the defendant for some considerable time.  It was, as mentioned, included in the defendant's discovery in June of this year.  One might have expected that the matters now sought to be covered in the proposed amended defence would have been pleaded by the defendant at the outset.  Instead, the defendant explains the delay in raising these matters on the basis that counsel has only recently been instructed and has suggested amendments.  Generally speaking, where a discretion is sought to be exercised in favour of one party, in this case the defendant, and to the disadvantage of the other, potentially in this case the plaintiff, an explanation will be called for (Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175). I have no doubt that the application is brought in good faith but have some misgivings as to the adequacy of the explanation proffered. That circumstance must be weighed against the effects of the delay and the objectives of the rules of court.

13. I must have regard to the nature and importance of the amendment sought to the party applying.  I am conscious that the matter is listed for trial and that the parties were proceeding to trial in the expectation that they would have their day in court.  It is my intent that the trial should proceed as listed.  The defendant bears the burden of persuading me that the amendment will not cause irremediable prejudice to the opposing party.

14. The Civil Liability Act 2002 was specifically referred to in the original defence.  It will inevitably have an impact on the outcome of this action.  Division 4 of that Act relates to recreational activities.  There can be no doubt that, at the relevant time, both the plaintiff and the defendant were engaged in a recreational activity which includes any sport, whether or not organised and any pursuit or activity engaged in for enjoyment, relaxation or leisure.  Swimming and kite‑surfing fall into that category.

15. Section 5H of the Act provides that a defendant is not liable for harm caused by his or her fault suffered by a plaintiff while the plaintiff engaged in dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity.  The section applies whether or not a plaintiff was aware of the risk.

16. Section 5I provides that a defendant does not owe a duty of care to a plaintiff who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

17. Section 5O provides that a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk to the plaintiff.  Section 5P provides that a defendant is not liable for harm caused by default of him or her suffered by another person if the harm is the result of the occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the defendant.

18. By s 5N of the Act, in determining liability for damages for harm caused by the fault of a person, a person who suffered harm is presumed to have been aware of the risk of harm if it was an obvious risk unless the person proves on the balance of probabilities that he or she was not aware of the risk.

19. It follows from the foregoing that the provisions of the Civil Liability Act 2002, in particular those just mentioned, will have a very direct bearing on the outcome of this action. It is the case, as mentioned earlier, that by par 5 of its defence filed 23 June 2010 the defendant made reference only to s 5I(1) of the Civil Liability Act 2002.  There was no suggestion in that pleading that the plaintiff was engaged in a 'dangerous recreational activity'. The defendant did, however, in providing particulars of warnings to the plaintiff assert that Brighton Beach was used for windsurfing and kite‑surfing and that there was signage pertaining to those activities.

20. The application of the Civil Liability Act 2002 is a matter that both counsel and the trial judge will have regard to in the course of the trial.  Necessarily counsel and the trial judge will have regard to the consequences of being engaged in a recreational activity and the consequences of being engaged in a dangerous recreational activity.  Whether the activity in which the plaintiff was engaged on the day in question falls into one category or the other will be a matter for the trial judge having heard the evidence and submissions of counsel.  It seems inevitable, in my opinion, that the plaintiff will, at the very least, fall into the first of those categories.

21. I assume that both the plaintiff and the defendant will give evidence as to the circumstances giving rise to the injuries suffered by the plaintiff.  It may be that others will also give evidence as to those circumstances from their particular perspectives.  It seems inevitable that the conditions prevailing in terms of the state of the ocean and the wind will form part of the evidence before the trial judge.  It is inconceivable that, for example, the plaintiff might give evidence of the circumstances in which he was injured without making reference to such matters either in evidence‑in‑chief or cross‑examination or both.

22. Neither party has, it seems, sought to rely upon expert evidence.  It does seem that, to the extent that the trial judge will be required to make findings as to the conditions at the relevant time, he or she will do so on the evidence of witnesses recounting their observations at that time.

23. The principle complaint of the plaintiff's solicitors is that the proposed amendments raise 'completely new issues which have not been raised on the pleadings before'.  Reference is made, in particular, to signs delineating the area as a 'kite‑surfing area' and the issue of the water and wind conditions at the time.  As mentioned, in my view, the original defence made clear reference to kite‑surfing areas being indicated by blue and white signs at Brighton Beach.  The issue of signage for the presence of a 'kite‑surfing area' is not new.  The matter of the wind and the condition of the ocean at the relevant time was not specifically raised in the defence but is, in my view, a matter which could hardly be said to be a new issue or to take the plaintiff's legal advisors by surprise.  The source material in that regard is, it seems, the marine accident report discovered by the defendant many months ago.  In any event, as mentioned earlier, the prevailing conditions at the time of the plaintiff's injuries are of such fundamental relevance that it is inconceivable that they would not have been canvassed in the evidence before the trial judge.  To the extent that such matters are now included in the proposed amended pleading they are, in my view, innocuous.

24. If I allow the amendment I must have regard to the effect of doing so on the plaintiff.  It does seem to me that there will be no prejudice to the plaintiff in doing so given the fundamental nature of the factual matters referred to as well as the considerations arising from the Civil Liability Act 2002.  Such matters would necessarily be part of counsel's preparation for trial.  I do not anticipate that the trial need be delayed by reason of the proposed amendment being allowed.  Accordingly, there will be orders in terms of pars 1, 2 and 3 of the defendant's chambers application of 20 December 2010.  The plaintiff will have leave to plead to the amended defence such amended pleading to be filed and served not later than Thursday 6 January 2011.  There will be a further order that the defendant do pay the plaintiff's costs thrown away by reason of the amendment and of the application to amend.