Lee v Fenn - [2011] WADC 5

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LEE -v- FENN [2011] WADC 5

CORAM: REGISTRAR KINGSLEY

HEARD: 16 DECEMBER 2010

DELIVERED : 20 JANUARY 2011

FILE NO/S: CIV 2036 of 2010

BETWEEN: WENDY JOYLENE LEE
Plaintiff
AND
PETER JOHN FENN
First Defendant
BARBARA CHRISTINE FENN
Second Defendant

Catchwords:

Practice - Application for leave to further amend the statement of claim

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff:     Mr Owen
First Defendant             :     Ms K Vernon
Second Defendant         :     Ms K Vernon

Solicitors:

Plaintiff:     Chapmans
First Defendant             :     DLA Phillips Fox
Second Defendant         :     DLA Phillips Fox

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

Nil

REGISTRAR KINGSLEY:

By an endorsed writ filed 6 July 2010 the plaintiff claimed against the first and second defendants as partners in the firm 'Just In Scales' for personal injuries caused to the plaintiff as a result of the negligence and/or of statutory duty including but not limited to the Trade Practices Act 1974 by the defendants.
In her statement of claim dated 28 July 2010 the plaintiff pleaded that the defendants carried on business as a partnership under the name Just In Scales (JIS). JIS were in the business of supplying weigh chairs to Sir Charles Gairdner Hospital (the Hospital). The plaintiff pleads at par 5 of the statement of claim that as a supplier of weigh chairs JIS was at all material times deemed to be the manufacturer/designer of the weigh chairs pursuant to s 18 and/or s 19 of the Occupational Health and Safety Act 1984 and as such owed a duty of care at common law and statutory duty of care to the plaintiff.
The plaintiff at par 7 pleads that on or about 15 August 2007 the plaintiff suffered injuries when the plaintiff was weighing a patient using a mobile weigh chair (the weigh chair). The plaintiff pleads that with the help of another nurse the plaintiff transferred a patient onto the weigh chair. The plaintiff knelt down to lower the foot plates of the chair so that the patient could place her feet on the plate. As the patient placed her second foot on the foot plate the patient leaned forward and the weigh chair started to tip over in the direction of the plaintiff. As the weigh chair tipped forward the patient fell onto to plaintiff placing both hands on the plaintiff's shoulders. As a result of the patient falling forward in the weigh chair the plaintiff was forced to hold the patients full body weight and as a result suffered injuries.
At par 8 of the statement of claim the plaintiff pleads that the accident was caused by the negligence and/or of statutory duty by the first and second defendants in that:
(a)Supplied a chair with a faulty design in that it was unable to adequately hold the full body weight of a patient;
(b)Failed to provide a proper braking system on the chair;
(c)Failed to provide big enough wheels to steady the chair;
(d)Failed to provide a chair with strong enough spokes from the central column to steady the chair;
(e)Failed to provide a chair with a lower centre of gravity to prevent the chair from tipping ('the design fault');
(f)Failed to address the design faults in the chair despite numerous request from the hospital and/or its employees/agents;
The defendants in their defence deny that they supplied the chair to the hospital, and if there were design faults in the chair, the defendants were never requested by the hospital or any of its employees or agents to address the design faults in the chair.
The defendants issued a request for particulars which were answered by the plaintiff in a document dated 26 August 2010. Request 1 goes to par 4 of the statement of claim and request 2 goes to par 8 (f) of the statement of claim. Request 2 enquires when the requests were made by the plaintiff to the defendant to address the design faults and how those requests were made. The response given by the plaintiff is that the requests were made within six months prior to the accident, although the plaintiff is unsure of the exact dates, and were made orally. The requests were made by the plaintiff to the clinical nurse specialist at the time and the plaintiff requested the hospital address the faults set out in par 8 (a – e) of the statement of claim.
On 30 August 2010 the defendants brought an application pursuant to O 16 Rules of the Supreme Court (1971) (RSC). The application was supported by the affidavits of Thomas Charles Armstrong the managing director of A & D Australasia Pty Ltd (A & D) who are the manufactures of medical weighing scales, and of Peter John Fenn (Fenn's affidavit).
Fenn deposes that he and his wife purchased the business from the previous owners in September 2000 and started operating the business in October 2000. Fenn deposes that there was no written agreement between JIS and the hospital but JIS continued an informal arrangement. Fenn deposes that when he serviced the scales at the hospital JIS had a list which contained the make, model and serial number of each scale its capacity and location within the hospital. There is a column for comments where the service technicians record relevant information, such as whether the scale is weighing correctly or whether any maintenance needs to be done to the scales. If there are problems with a scale, other than weighing accuracy (which are tended to immediately), the defendants noted the problem and submitted a report to Health Corporate Network (an agency of the WA Health Department) outlining what the problem is and what was required to repair the scales. Fenn deposes that they may or may not then receive instructions to carryout repairs or maintenance, because the hospital has it own in house maintenance department.
Fenn goes on to depose that according to the incident report completed by the plaintiff the plaintiff was injured on 15 August 2010 whilst weighing a patient in Ward C 16 of the hospital. Fenn reviews the records of JIS and attaches a list of scales serviced at the hospital by JIS for the period between September 2005 to February 2008.
According to Fenn the scale located in Ward C 16 at the hospital throughout that period was a 'A & D FV C/scale' with the serial number H0501852 (the H0501852 scale).
Fenn goes on to depose that the only reference to any problem with the H0501852 was in the inspection report for September 2007 to January 2008 where the chair scale was noted as condemned. Fenn depose that he recalls the reason the H0501852 scale was condemned was due to an electrical fault and that the chair was very old.
The defendant application was listed for hearing on 5 October 2010 but that application appears to have been then adjourned to 19 October 2010.
On 15 October 2010 the plaintiff filed a proposed amended statement of claim. On 19 October 2010 the defendants' application was dismissed, but there was argument on the proposed amended statement of claim. After hearing argument the plaintiff was ordered to bring in a fresh minute of proposed amended of claim on or before 12 November 2010.
The proposed amended statement of claim filed 15 October 2010 was supported by the affidavit of the plaintiff sworn 15 October 2010. The plaintiff deposes that in May 2010 she filed an originating summons seeking pre-action discovery from the hospital. On the basis of the documents brought into court under the subpoena the plaintiff instructed her solicitors to commence the proceedings against the defendants. The plaintiff deposes that when the writ was filed on 6 July 2010 she had no other documents in her possession in relation to the defendants and their business JIS.
The plaintiff deposes at par 10 that she is now aware the weigh scale chair she was using on the material date (27 August 2007) was the scale on Ward C 16 with the serial number H0501852. The plaintiff goes onto depose that she is aware from the annexure PJS9 of Fenn's affidavit that the scale as at 5 April 2007 was suggested to be operational. The plaintiff goes onto depose that she is aware from document PJS10 attached to Fenn's affidavit that suggests as at 8 November 2007 the scale with serial number H0501852 is condemned. The plaintiff goes on to depose that in annexure PJF 12 there is a recommendation by the defendant that all of the F V chair scales at the hospital be replaced due to the age and a number of other reasons associated with the age of the chair scales. The plaintiff goes onto depose that she believes the defendants were aware of the problems with the F V chair scales, including the scale with serial number H0501852, and they have failed to adequately report to the hospital on their condition and age and suggest immediate action.
Attached to the plaintiff's affidavit at WJL 3 is a copy of an email dated 22 June 2010 from the medical administrator of the hospital to, presumably, Georg Raithel a solicitor employed by the State Solicitors Office which suggests that the H0501852 scale was probably smashed up and disposed of in a skip in 2008.
Turning to the minute of proposed amended statement of claim filed 15 October 2010 the plaintiff seeks to plead that the business of JIS involved the supply, service and maintenance of weighing scales, and as part of the business carried on by JIS the first and second defendants entered into an informal agreement with the hospital to service and maintain all the weighing scales at the hospital.
At par 7 of the 15 October 2010 statement of claim the plaintiff seeks to plead that in carrying out the obligations of the informal agreement JIS would obtain a list of scales currently in use at the hospital and proceed to inspect and service each scale. Particulars of the servicing and maintenance are pleaded as:
(a)ensure the castors are tight;
(b)ensure the screws are secure;
(c)ensure the footrests are tight and secure;
(d)ensure the brakes are working correctly;
(e)ensure the wheels are working correctly and adequate for the scales;
(f)ensure the central bolts connecting the plastic seat to the loadcell and frame is secure;
(g)check for any other problems with the scale and fix it immediately and/or report the problem to the Heath Corporate Network.
The plaintiff seeks to plead at par 9 that as a result of the business carried on by JIS at the hospital the first and second defendants owed the plaintiff a duty of care at common law and particulars giving rise to that duty are set out in pars (a) – (f) of par 9 of the 15 October 2010 minute. At par 10 the plaintiff pleads the fact of the accident and gives particulars and at par 11 pleads as particulars of negligence and breach of common law duty of care the following:
(a)failed to ensure the castors on the scale were tight;
(b)failed to ensure the brakes on the scales were working correctly;
(c)failed to ensure the wheels on the scales were working correctly and adequate for the scale;
(d)failed to ensure the central bolt connecting the plastic seat to the loadcell and frame on the scale was secure;
(e)failed to ensure the spokes extending from the central column of the scale were adequate enough to steady the scale;
(f)failed to immediately attend to and fix those issues specified in (a) – (e) above;
(g)failed to adequately provide the Health Corporate Network with a report setting out the issues specified in (a) – (e) above;
(h)failed to adequately inspect the scale and identify the likelihood of the scale causing injury given its age and condition;
(i)failed to adequately report to the Health Corporate Network on the likelihood of the scale causing injury given its age and condition.
By a minute of proposed amended statement of claim filed 6 December 2010 the plaintiff sought to further amend the statement of claim. The further amendment is opposed by the defendants.
Paragraph 10(d) of the 6 December 2010 proposed further amended statement of claim states that:
Prior to the material date, the vertical stem of one of the front castor wheels on the scale was buckled ('the damaged castor').
Paragraph 10(e) goes onto state that the damage castor made the scale liable to unexpectedly tip forward.
Paragraph 11 of the 6 December 2010 proposed further amended statement of claim pleads the particulars of negligence now as:
(a)failed to ensure the castors on the scales were not damaged;
(b)failed to ensure the castors on the scale were working correctly and adequate for the scales.
There after the particulars follow the particulars pleaded in the 15 October 2010 minute.
The defendants' counsel submits that the defendant does not know what case it has to meet. In her affidavit sworn 15 October 2010, the plaintiff deposes that she is now (that is in October 2010) aware that the weigh scale chair was the scale on Ward C 16 with the serial number H0501852. At par 13 of her affidavit the plaintiff refers to Fenn's affidavit and an undated report of scales for the period September 2007 to January 2008 (attachment PJF 14). This report states that the scale with serial number H0501852 was found condemned due to extreme age. The plaintiff goes onto depose that attachment PJS 12 to Fenn's affidavit notes that JIS recommended replacement of all of the F V chair scales at the hospital due to their age and a number of other reasons associated with the age of the chair scales. The plaintiff goes onto depose that she believed that the defendant were aware of the problems with F V chair scales as a result of their extreme age. However, the plaintiff does not depose to what are the problems with the weigh chair.
The plaintiff's affidavit was in opposition to the defendants O 16 RSC application and reflected the 15 October 2010 minute where the plaintiff sought to particularise the negligence of the defendants in relation to the age and condition of the chairs. In the 6 December 2010 minute the plaintiff now particularises the negligence of the defendants by reference to a damaged castor. Plaintiff's counsel at the bar table sought to justify the amendment to the particulars by saying that new evidence has come to light.
The defendants are understandably concerned about the case that it now has to meet. The defendants say that the chair in question was destroyed and disposed of in 2008 and in the maintenance report there is no reference to a damaged castor. Further the plaintiff's case has shifted from, firstly, being a design fault, secondly, to a failure to service and maintain the chairs and failing to identify the likelihood of the scale causing injury given its age and condition to thirdly, the accident now caused by a damaged castor.
I am mindful that the defendants were service technicians and received a blanket purchase agreement requiring the chair scales at the hospital to be serviced. At par 29 of his affidavit Fenn attaches PJF 6‑PJF 11 being a list of scales serviced at the hospital as at various dates in 2005, 2006 and 2007. I am also mindful of the fact that Fenn deposes that if there were other problems with a scale, apart from weighing accuracy JIS, would note the problem and submit a report to Health Corporate Network outlining what the problem is and what is required to repair the scale. Fenn goes on to depose at par 24 of his affidavit that the defendants may or may not then receive instructions to carryout repairs or maintenance to any particular scale because the hospital had its own in-house maintenance department and sometimes would fix wheels and similar faults.
Accordingly, I am of the opinion that for the defendant to properly prepare its case the defendant needs more detailed explanation as to when and how it came to the attention of the plaintiff that the castor on the chair was damaged. I am of the opinion that this would be best achieved by the plaintiff, attaching to her affidavit her signed proof of evidence in relation to the circumstances of the accident with particular reference to the plaintiff's knowledge of the damaged castor and where and how the plaintiff became aware of the damaged castor.
In any even I am of the opinion the minute of proposed amended statement of claim dated 6 December 2010 is not one that should be allowed. The issue for determination is the damaged castor. The plaintiff seeks to plead at par 11(c) and 11(d), issues regarding the central bolt connecting the plastic chair to the loadcell, and the spokes extending from the central column of the weigh chair. In my opinion these issues are irrelevant.
The orders I proposed are to make are:
1.Leave to further amend the statement of claim by way of the minute of proposed further amended statement of claim dated 6 December 2010 be refused.
2.The plaintiff file and serve an affidavit attaching a signed proof evidence signed by the plaintiff detailing the circumstances of the accident with particular reference to the plaintiff's knowledge of the damaged castor and when, and how, the plaintiff became aware of the damaged castor.
I will hear counsel on the timing of the affidavit and on the issue of costs.