Lupton v Electricity Corporation - [2005] WADC 196

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LUPTON -v- ELECTRICITY CORPORATION [2005] WADC 196

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 21 JULY 2005

DELIVERED : 14 OCTOBER 2005

FILE NO/S: CIV 164 of 2003

BETWEEN: GRAEME FRANK LUPTON
Plaintiff
AND
ELECTRICITY CORPORATION
Defendant
KYE PTY LTD
First Third Party
GEOGRAPHE UNDERGROUND SERVICES PTY LTD
Second Third Party
QBE INSURANCE (AUSTRALIA) LIMITED
Third Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike statement of claim - Application to amend statement of claim - Consideration of the impact of O 21 r 5

Legislation:

Nil

Result:

Application of defendant to amend statement of claim against the first third party dismissed
Application of defendant to amend statement of claim against the third third party granted

Representation:

Counsel:

Plaintiff:     Not applicable
Defendant:     Mr G Hancy
First Third Party            :     Mr S Popperwell
Second Third Party       :     Not applicable
Third Third Party           :     Mr S Popperwell

Solicitors:

Plaintiff:     No appearance
Defendant:     Phillips Fox
First Third Party            :     Pynt & Partners
Second Third Party       :     No appearance
Third Third Party           :     Pynt & Partners

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The defendant issued a third party notice against the first third party on 15 March 2000 the operative part of which is as follows:
"The defendant claims to be entitled to be indemnified by you against the plaintiff's claim and the cost of the action, including the costs incurred in defending this action and the cost of these third party proceedings on the grounds contained in the statement of claim served with this notice."
The case revealed by the pleading is that the defendant and the third party were parties to a contract whereby the third party would provide services to the defendant, pursuant to which the third party agreed to indemnify the defendant against loss for any negligent act or omission of the third party in the performance or non‑performance of the services. The defendant alleged that it was the third party's negligence that caused the accident whereby the plaintiff was injured. The pleading concludes with alternative prayers for relief for indemnity or contribution to any damages ordered to be paid by the defendant to the plaintiff. Essentially the claim made in the pleading is contractual but would depend upon a finding of negligence against the third party.
The defendant now seeks to amend the pleading to make further contractual claims under which it seeks damages. The first such claim is founded upon an obligation on the third party to obtain insurance for the benefit of the parties to provide cover for liability for bodily injury arising in the context of the provision of the services. The second that the third party would perform the services with due care, diligence and skill. At par 14 the defendant refers to its loss as being the damages and costs paid to the plaintiff pursuant to the judgment obtained against it by the plaintiff on 22 August 2001 together with its costs in defending and settling the claim. In the prayer for relief, the defendant claims damages for breach of contract, recovery of the amounts paid in satisfaction of the plaintiff’s judgment and the defendant's costs of defending that claim and (presumably alternatively) indemnity or contribution in respect of the defendant’s liability to the plaintiff.
A central feature of the third party's opposition to the application is that any new cause of action sought to brought by the defendant in the third party proceedings that is beyond the scope of the third party notice would be statute barred. The defendant contends that the new pleading arises from substantially the same facts and relies upon O 21 r 5(5).
In my opinion the claim founded upon the obligation to obtain insurance cover is significantly different to the claim founded upon the contractual indemnity. The common features are the existence of the contractual relationship and that the term upon which the defendant now seeks to rely would have accorded some measure of comfort to the defendant in addition to the contractual indemnity. Under the contractual indemnity claim the only obligation sought to be imposed on the third party would arise under a particular contractual feature and the allegation of negligence. By the proposed claim, in addition to the fact that the defendant would rely upon a different feature of the relationship, would draw into account whether or how the third party discharged of that obligation. Each feature of the proposed pleading other than perhaps the measure of the defendant’s loss would involve consideration of issues that would have no resonance with the existing case.
In the case of the second proposed contractual claim the common features remain constant. The particular obligation is new but the context in which breach would emerge would resonate with the particulars of the existing allegation of negligence. By the proposed amendment those particulars are converted into allegations of material fact. I will refer to them in the form in which it is proposed that they be put:
1.Failed to ensure that the steel poles were supported by wooden gluts and not liable to fall;
2.required the plaintiff to cut metal bands surrounding the packs of steel poles without first ensuring that they would not fall on the plaintiff after he cut the straps;
3.required or permitted the plaintiff to work in a confined space of 1.2m width bounded by a wire fence and the edge of the stack.
The proposed plea of breach is:
The first third party failed to perform the services with due care, diligence and skill reasonably expected of a contractor providing services of the kind described.
I have no difficulty with the proposition that at least the same standard might be imported from the existing claim into the proposed claim. It is pure speculation on my behalf as to what other standard would be imported by the qualification expressed in the last part of that plea. I can imagine that it would be different to the existing standard and that such difference is only likely to be established by opinion evidence. It is at that point that I recognise that the proposed case must assume the dimensions of a significantly different case to that presently pleaded.
The first third party has also sought to strike out the defendant’s amended statement of claim filed on 3 December 2003. It is a curious feature of the case that the defendant was not then voluntarily amending and in the absence of any part of the pleading being struck had been put in the position where unless it amended judgement would be entered against it. The applicant contested the amended pleading on the basis that the defendant had not obtained leave. Probably the less that is said about case management the better. The fact that the defendant made its application to amend in terms of the current proposal and arguably thereby implicitly but certainly expressly abandoned the "existing pleading", I do not consider that there would be any useful purpose in undertaking any analysis of that application. Where that leaves the parties may depend upon further application.
As to the proposed amendment of the claim against the third third party the datum is the third party notice according to the terms of which the defendant claimed contribution on the grounds that:
1.The injuries suffered by the plaintiff were caused by the negligence or breach of contract of Total Western Transport Pty Ltd and/or its servants or agents;
2.Total Western Transport Pty Ltd held an insurance policy with you, indemnifying the defendant against any such claims as the plaintiff’s.
The contested proposed amendment is at par 6 under which the defendant seeks to establish various contractual terms whereby the third party’s insured would obtain insurance for the benefit of itself and the defendant to cover specified loss and to indemnify the defendant for specified loss.
The defendant portrays those allegations as simply found the pleading at par 21 to the effect that it is entitled to be indemnified. In my opinion the contested pleading is within the scope of the third party notice.
Otherwise the third third party sought to strike out the defendant’s statement of claim filed on 30 April 2003. The defendant conceded that the proposed amendment reveals that it had been abandoned. Accordingly, there is no reason to consider that application further.