MacDonald v Inglis Equipment Pty Limited

[2017] NSWDC 59

District Court

New South Wales

Medium Neutral Citation:	MacDonald v Inglis Equipment Pty Limited [2017] NSWDC 59
Hearing dates:	13 and 14 March 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application for leave to amend the statement of claim dismissed. (2) Statement of claim struck out and dismissed. (3) Plaintiff pay defendant’s costs of the application and of the proceedings, with liberty to apply. (4) Exhibits retained until further order.
Catchwords:	TORTS - negligence - motor accident – defendant leased forklift to plaintiff’s employer for five years – plaintiff injured when struck by forklift operated by a fellow employee in the employer’s premises – plaintiff brings proceedings against defendant on the basis that his fellow employee was the defendant’s servant or agent - whether the defendant had parted with possession of the forklift for the purposes of Motor Accidents Compensation Act 1999 (NSW) s 4(1)(b) - whether defendant “entitled to immediate possession of the vehicle” – defendant not in possession of forklift PRACTICE AND PROCEDURE – application under s 65 Civil Procedure Act 2005 (NSW) to amend statement of claim to plead defendant’s failure to repair or negligent repair of forklift – whether proposed amendment based on the same (or substantially the same) facts as those giving rise to the currently pleaded cause of action – prejudice, delay and discretion issues – application for leave to amend refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 65 Motor Accidents Compensation Act 1999 (NSW), ss 3, 3B, 4, 10A and 112 Motor Accidents Compensation Regulation 2015 (NSW), r 20(e)(i) Road Transport Act 2013 (NSW), s 4(1) Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Bon Arthur Transport Pty Ltd (in liq) v Caruana [2013] NSWCA 101 Ewing v Times Newspapers Ltd [2011] NIQB 63 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Greenwood v Papademetri [2007] NSWCA 221 H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 O’Dwyer v Chief Constable of the RUC [1997] NI 403 Perera v Gemworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Riverina Wines Pty Ltd v Tetra Pak Marketing Pty Ltd [2007] NSWSC 1014 Szanto v Bainton [2011] NSWSC 985 Treadtel International Pty Ltd v Cocco [2016] NSWCA 360 WorkPac Pty Ltd v Thearle [2016] NSWCA 303 Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Category:	Principal judgment
Parties:	Plaintiff: Graham MacDonald Defendant: Inglis Equipment Pty Limited
Representation:	Counsel: Plaintiff: Mr C Hart Defendant: Mr J Sleight   Solicitors: Plaintiff: Michael Evers & Co Defendant: Gillis Delaney Lawyers
File Number(s):	2016/218102
Publication restriction:	None

Judgment

The application before the court

1. By notice of motion filed on 23 February 2017, the defendant brings an application for summary dismissal of these proceedings, seeking the following orders:

1. The proceedings be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules2005 (NSW).

2. The plaintiff to pay the defendant’s costs of the motion.

3. The plaintiff to pay the defendant’s costs of the proceedings.

4. Such further order or other order as the Court deems fit.

2. The basis for the defendant’s application for summary judgment is as follows. The plaintiff’s proceedings for damages against the defendant (commenced by statement of claim filed on 15 July 2016) seeks damages for personal injury after the plaintiff was struck by a forklift truck operated by a fellow employee at premises occupied by the plaintiff’s employer. The defendant’s connection with the accident was that it had leased the forklift to the plaintiff’s employer for a period of five years. The defendant’s application for summary dismissal relies upon s 112 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”), which limits liability to lessors who part with the leased property for less than three months. As this lease was for five years, the defendant is deemed by the Act to have parted with possession and any claim for personal injury cannot arise.

3. In order to meet this argument, the plaintiff’s solicitors sought leave to amend the claim overnight and, on 14 March 2017, provided the amended statement of claim upon which they proposed to rely. The proposed pleading maintains both the original claim (namely the claim the subject of the dismissal application) and the proposed amendment, which asserts negligence on the basis of failure to repair and/or to provide a vehicle for lease in a suitable state of repair. These amended pleadings are as follows:

“2. At all material times, the Defendant was the owner of the motor vehicle, namely a forklift truck, registration number 22722D (“the vehicle”), such vehicle was used by the Defendant’s agents in a workplace, at 95 Pacific Highway Charlestown, NSW (“the workplace”), such workplace not being a road related area, as defined in the Roads Transport (Vehicle Registration) Act NSW 1997 [sic]. At all material times the vehicle was not registered within the meaning of section 10A of the Motor Accident Act 2009 (NSW).

3. At all material times, Mark Ryan was the driver of the vehicle (“the driver”), acting as an agent of the Defendant, pursuant to section 112 of the Motor Vehicle [sic] Compensation Act 1999 (NSW) (“MACA”), alternatively was the driver of the vehicle owned by the Defendant.

4. At all material times, Mark Ryan, in use of the vehicle was carrying out work, within the meaning of the Work Health and Safety Act 2011 (NSW) (“WHS”) and its regulations, in and around its the workplace.

5. At all material times the Plaintiff and Mark Ryan, were employed by Dywidag-System International, at the workplace and was were engaged in work related duties, such duties involving the use of the vehicle.

6. In carrying out work with the vehicle, in its use and operation, the Defendant, through its servants and/or agents, and/or through the driver of the vehicle, owed a duty to the Plaintiff to take reasonable care in the use or operation of the vehicle and or in its state of repair, maintenance and condition.

7. On 15 October 2013, the Plaintiff was carrying out his duties, when the driver Defendant’s agent failed to apply the hand break brake before removing himself from the vehicle, which he had parked on a slope immediately above the Plaintiff. As a result, the vehicle rolled down the slope and hit the Plaintiff, thereby causing the Plaintiff severe injuries, loss and damage (“the incident”). Alternatively, the Defendant, in failing to take reasonable care in the repair, service and maintenance caused the incident.

8. The injury, loss and damage were occasioned by the negligence and/or breach of statutory duty of the Defendants, their servants or agents, and/or by the driver, in the use and/or operations of the vehicle, in breach of the duty alleged in paragraph 6, alternatively, in breach of the duties imposed by the WHS, in so far [sic] as the WHS informed the duty to take reasonable care in the use or operation of the vehicle in the workplace, and/or [sic] in failing to take reasonable care to provide the vehicle in a state of repair, service and maintenance that did not pose a foreseeable risk of injury to the Plaintiff.

9. PARTICULARS OF BREACH OF DUTY AND/OR BREACH OF STATUTORY DUTY AGAINST THE DEFENDANT

(a) By its agents, or the driver, using the vehicle in a way that was unsafe and likely to cause injury to the Plaintiff, in so far [sic] the vehicle was posed a foreseeable risk of injury due to the risk of movement of the vehicle on a slope when the hand brake was applied (“the risk”)

(b) By its agents, or the driver, driving the plant vehicle in such a manner that part of the vehicle came into contact with the Plaintiff.

(c) By its agents, or the driver, leaving the forklift running while the driver is was not at the controls of the vehicle.

(d) By its agents, or the driver, failing to adequately secure the vehicle in the circumstances to prevent it rolling downhill.

(e) By its agents, or the driver, failing to place the forklift in gear and stop the engine before abandoning the vehicle in the circumstances.

(f) By its agents, or the driver, parking the forklift when it is on a slope immediately above workers.

(g) By its agents, or the driver, failing to adequately prevent the vehicle rolling forward out of control.

(h) By its agents, or the driver, failing to apply the hand brake, adequately or at all.

(i) By its agents, or the driver, failing to take all reasonable precautions in the circumstances to prevent the forklift moving.

(j) By its agents, or the driver, failing to stop the engine and to place the vehicle in gear.

(k) By its agents, or the driver, abandoning the controls of the vehicle when the forklift was in a circumstance immediately up-hill from workers who would likely be injured if hand brake were to fail.

(l) By its servants, providing a vehicle with a hand brake that did not operate to prevent the vehicle from moving on a slope

(m) The Plaintiff repeats the allegations in paragraphs 9 (a) to (6 [sic] (k) (l) above and states that the circumstances in which the use and operation of the vehicle caused the injury established breach of the provisions of the WHS and/or its regulations, insofar as the Defendant’s, the agents and/or the driver failed to take reasonable care to ensure the use and operation of the vehicle was carried out in accordance with a safe work method.

As a result of the negligence and/or breach of statutory duty aforesaid, the Plaintiff suffered severe injuries, loss and damage: [sic]”

4. There are thus two applications before the court:

1. The defendant’s application for summary dismissal of the plaintiff’s claim; and

2. The plaintiff’s application for leave to amend the statement of claim.

The circumstances of the accident

5. The plaintiff relies upon the affidavit of Nathan David Willoughby sworn 8 March 2017 (Exhibit A). Annexed to Mr Willoughby’s affidavit (Annexure A) is a report prepared by G4S Investigation dated 16 November 2013. Page 2 of this report provides an investigative summary as follows:

“Investigative Summary

The Claimant Graham MacDonald is a factory process worker who is employed with Dywidag-Systems International (the Insured) located at 25 Pacific Highway Bennetts Green New South Wales.

On 15 October 2013, he was assisting a co-worker to re-strap a pack of friction bolts. A forklift truck driver got off his forklift truck to lend a hand, leaving it parked on a slope with the engine running and the handbrake engaged. It was parked approximately 2 metres away from where the pack was being re-strapped.

While the Claimant and the others were involved re-strapping the pack, the forklift truck has rolled down the slope and pinned the Claimant’s right foot against the pack being re-strapped. This has resulted in the Claimant suffering a broken ankle, which subsequently had to be repaired surgically with pins.

Following the accident, the Insured contacted Hunter Liftrucks, who they lease their forklift trucks from, and requested they attend as soon as possible to inspect the forklift truck involved. This inspection occurred during the afternoon of 15/10/2013, and during a simulation of the event, the hand brake on the forklift truck held.

The Insured conducted a re-enactment of the incident on 16/10/2013 and a DVD of this was made and is included with this report. The Insured also conducted an internal investigation (Annexure 1); the result of this stating the forklift truck operator did not fully engage the hand brake on the forklift truck prior to disembarking from it.

WorkCover inspected the accident location on 23 October 2013 and a report (Annexure 2) was provided to the Insured on 24 October 2013.

The Claimant lodged a Workers’ Compensation Claim for his injury, and at the date of this report remained unfit for any work capacity.”

6. The internal investigation referred to in this report (i.e. Annexure 1 referred to above) stated the following (on page 10):

“INTERNAL INVESTIGATION BY INSURED

Anthony Runge advised that on 16 October 2013, he commenced an investigation into the accident involving the Claimant and the forklift truck. He and Damien Galluzo (Logistics Manager), interviewed Mark Ryan the forklift truck driver and obtained details from him of what had happened.

He said Mark Ryan told him he had gone to assist Lou Pico and the Claimant re-strapping the pack of friction bolts, and that while he was doing this the forklift truck had slowly rolled down the slope and hit the Claimant; pinning his right foot area between the bottom front of the forklift truck and the timbers that the pack had been sitting on.

Anthony Runge further stated that Mark Ryan told him the forklift truck was running when he got off it, and that he had engaged the handbrake prior to disembarking from it. He added:

The video re-enactment (Copy DVD provided) shows exactly what he (Mark Ryan) did. The first re-enactment showed the handbrake didn’t hold and the forklift truck started to roll down the slope; but I did not work the camera properly and so didn’t get this on film.

Another re-enactment was done straight away, and the handbrake held. After this was done, I was satisfied that we had covered everything off regarding the accident. I was expecting WorkCover to come, and wanted to have all the information together for them.

The Incident Summary of the Internal Investigation conducted by the Insured stated, that after the Investigation was completed, it was determined that the operator had engaged the forklift truck (or so thought), but did not fully engage the hand brake. When he disembarked the forklift truck, it started to roll slowly forward.

During the Investigation, it was found on maintenance reports (Annexure 10) for the forklift trucks, comments from the mechanics that operators had approached them to fix some issues with machines; however the operators had not mentioned these issues on the daily pre-start checks (Annexure 11).

As a result of the above, Tool Box talks were held with all operators to ensure they engaged the handbrakes on the forklift trucks prior to disembarking from them. The operators were also provided with awareness training in regards to the daily pre-start check lists.

Anthony Runge advised that during the Investigation he also found there was the potential for operators to manually adjust the handbrake tension. However, there was no direct link that this had occurred with the forklift truck involved in the accident to the Claimant.

He said he still felt the need to eliminate the possibility of this occurring in the future, so he had Hunter Liftrucks come in and modify the forklift trucks applicable, and this involved them putting a locking nut behind the actual manual tensioner.” (Exhibit A)

7. Hunter Liftrucks attended the site on 21 October 2013 and conducted the following adjustments on the forklift. The work carried out was noted in a Field Service Report as follows (Exhibit C):

“Lubricate park brake mechanism and adjust tension on park brake application. Test drive forklift and check park brake operation on incline (both fwd & reverse). Park fork available for operators.”

8. Mr Raymond Inglis’ affidavit dated 6 March 2017 sets out the following information:

“3. As at the date of the accident, the defendant was the owner of a Yale Model forklift truck with conditional registration plate GDP-40-VX.

4. Annexed and marked “A” is a copy of the Certificate of Conditional Registration effective 25 March 2013 that was valid as at the date of accident.

5. On 24 July 2012 the defendant issued a quotation to Dywidag Systems International Pty Limited regarding the hire costs of the forklift. Annexed and marked “B” is a copy of the quotation dated 24 July 2012.

6. On 13 August 2012 the defendant received a purchase order from Dywidag Systems International Pty Limited regarding the hire of the forklift for a period of 240 weeks in accordance with the quotation earlier issued by the defendant. Annexed and marked “C” is a copy of the purchase order dated 13 August 2012.

7. I understand the plaintiff was injured by the forklift that the defendant hired to Dywidag Systems International Pty Limited and that at the time of the accident, the plaintiff was an employee of Dywidag Systems International Pty Limited.”

9. Annexure B referred to in Mr Raymond Inglis’ affidavit is a quotation issued by Hunter Liftrucks to Dywidag Systems International Pty Ltd, which provided the following details:

“WEEKLY RENTAL RATE: $364.00 plus GST

RENTAL TERM: Sixty Months form date of delivery

TERMS OF PAYMENT: Strictly 30 Days

GST: To the value of $34.00 is to be added to weekly Rental Rate

DELIVERY: 14 – 16 Weeks from receipt of your firm order.”

10. Clause 8 of this annexure goes on to note “client responsibilities” as follows:

“8. CLIENT RESPONSIBLITIES: The client shall be responsible for the general daily service checks. As a general guide, the minimum daily service checks should comprise of the following:

i) Check all oil and / or water levels

ii) Check fuel / gas level and / or Battery level and refill as and when necessary

iii) Check hire unit for any damage sustained and report this to the Hirer immediately. All damage other than fair wear and tear is to customers account.”

The defence

11. Paragraph 3 of the Defence reflects this factual background:

“3. As to paragraph 3 of the statement of claim, the defendant says:

(a) it repeats paragraph 2 above;

(b) it admits Mark Ryan was the driver of the Vehicle;

(c) it pleads that at the time of the accident Dywidag Systems International Pty Ltd was entitled to the immediate possession of the Vehicle and had hired the Vehicle from the defendant a period exceeding 3 months;

(d) it denies the defendant had possession of the Vehicle at the time of the accident or that it was entitled to immediate possession of the Vehicle;

(e) it pleads Chapters 3 to 6 of the MAC Act has no application to the claim;

(f) it pleads section 112 of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) has no application to the claim;

(g) it denies the driver was the agent of the defendant;

(h) it does not admit the balance of the allegations in the paragraph.”

12. It is clear from the factual material set out above and the contents of the defence that the question for determination in relation to the defendant’s summary judgment application is one of application of the relevant statutory provisions to facts which are not in dispute.

13. As to the plaintiff’s application for leave to amend, there is one reference to an eyewitness observation of the handbrake that could not be caught on video, but all of the evidence collected at the time resulted in conclusions that the hand brake had not been put on properly.

The test to apply to summary judgment applications

14. The summary procedure for striking out a claim is to be used only in the most plain and obvious cases. The burden of proof lies on the moving party, and it is a significant and heavy burden. For the purposes of such an application, all the averments in the statement of claim must be assumed to be true: Ewing v Times Newspapers Ltd [2011] NIQB 63 at [32] (“Ewing”), citing O’Dwyer v Chief Constable of the RUC [1997] NI 403 at 406C.  Mr Sleight also submits that a plaintiff invoking a statutory provision must set out the facts material to the operation of that statute and so must be bound by his or her pleadings, citing H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 (see also Younan v Nationwide News Pty Ltd [2013] NSWCA 335).

The test to apply to applications for leave to amend

15. The relevant principles are set out comprehensively by Ward J in Szanto v Bainton [2011] NSWSC 985 at [121] ff. Mr Hart submits that the plaintiff has provided the best particulars it can.

16. The limitation period has now expired, and the granting of leave to replace the existing claim with the proposed new claim must be determined in accordance with the provisions of s 65 Civil Procedure Act 2005 (NSW), which provides as follows:

“65 Amendment of originating process after expiry of limitation period

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as:

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) In this section, “originating process” in relation to any proceedings, includes any pleading subsequently filed in the proceedings.”

17. The question of whether the events the subject of the proposed amendment arise out of the same (or substantially the same) facts is a matter of general impression.

18. The leave of the court is required, and one of the relevant factors to take into account is the prejudice caused, not only where a new party is sought to be joined to the litigation (Greenwood v Papademetri [2007] NSWCA 221) but also where prejudice occasioned by loss of opportunity to obtain or inspect documents or machinery could arise (Riverina Wines Pty Ltd v Tetra Pak Marketing Pty Ltd [2007] NSWSC 1014 at [34] – [35] and [45].

19. There are pleading difficulties with the claim in its current form. First, the proposed amended claim sought to retain the existing claim based on the defendant’s asserted possession of the vehicle and, if that claim falls away, it would be impossible to extricate the alternative basis from the claim as currently pleaded. Second, no particulars are provided as to what negligent repair or failure to repair is to be relied upon.

20. The plaintiff is effectively asking the court for leave to file a claim where the factual basis of the claim is formulated only in the most general way and lacks any particulars. However, the plaintiff’s application for leave to amend must stand or fall on the pleadings and particulars as currently outlined.

21. I shall first set out my findings in relation to the defendant’s application for summary dismissal.

The defendant’s application for summary dismissal

22. The plaintiff alleges that as at the date of the accident (15 October 2013), the defendant is the agent of the driver of the forklift as defined pursuant to s 112 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). The defendant argues that the lease agreement falls within the exception in s 112 and that it does not have possession of the vehicle.

The relevant legislative provisions

23. Section 112 of the Act provides:

“112 Presumption of agency

(1) For the purposes of:

(a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and

(b) the third-party policy, if the vehicle concerned is an insured motor vehicle, any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle.

(2) Nothing in this section is to be taken to imply any ratification by the owner of the motor vehicle of the acts of the person driving the motor vehicle.

(3) The presumption of agency under this section is applicable not only with respect to proceedings taken against the owner of the motor vehicle, whether severally or jointly with the driver, but also:

(a) where the owner or driver is dead, with respect to proceedings against the owner or driver’s estate pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and

(b) where the owner or driver is dead or cannot be served with process, with respect to:

(i) proceedings against the person’s insurer under section 113 or the Nominal Defendant, and

(ii) proceedings in which the owner or driver, the owner’s or driver’s estate, the insurer or the Nominal Defendant, as the case may be, is involved as alternative defendant or as a person on whom notice in writing has been served pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1946, or as a party to proceedings for recovery of contribution by or against a joint tortfeasor pursuant to Part 3 of that Act.”

24. The definition of “owner” may be found in s 4 of the Act, which provides:

“4 Meaning of “owner” of motor vehicle

(1) For the purposes of this Act:

(a) in the case of a motor vehicle that is registered, the “owner” is:

(i) each registered operator of the vehicle within the meaning of the Road Transport Act 2013, unless the operator has sold or ceased to have possession of the vehicle, and

(ii) each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle, and

(iii) if any such registered operator or owner has sold or ceased to have possession of the vehicle-any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or

(b) in the case of a motor vehicle that is unregistered, the “owner” is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or

(c) in the case of a motor vehicle to which a trader’s plate is fixed, the “owner” is the trader to whom the trader’s plate is issued.

(2) For the purposes of this section, a person is taken not to have ceased to have possession or, as the case may be, not to have acquired possession of a motor vehicle where a change of possession occurs by way of:

(a) any hiring (not being a hiring under a hire-purchase agreement) or lending of the vehicle for a period not exceeding 3 months, or

(b) the passing of the possession of the vehicle to a bailee for the purpose of sale or disposal or for the purpose of alteration, repair, renovation, garaging, storing or other like purpose not involving the use or operation of the motor vehicle for the benefit of the bailee.

(3) In the application of any provision of this Act to and in respect of a motor vehicle to which a trader’s plate is fixed (whether or not with the authority of the trader), a reference in any such provision to the owner is to be read as a reference to the trader, and a reference to the third-party policy in relation to that motor vehicle is to be read as a reference to the third-party policy in relation to motor vehicles to which the trader’s plate is fixed (whether or not with the authority of the trader).”

25. Also relevant to the current application is s 10A of the Act, which provides:

“10A Treatment of certain vehicles for purposes of third-party policy

(1) A motor vehicle that is:

(a) subject to a conditional registration under the Road Transport Act 2013, and

(b) designed principally for use otherwise than on a road, and

(c) a motor vehicle, or a motor vehicle of a class, prescribed by the regulations for the purposes of this section,

is taken, for the purposes of a third-party policy under this Act, to be subject to an unregistered vehicle permit and not to a conditional registration.

(2) However, a regulation made for the purposes of this section does not affect a third-party policy of insurance under this Act that is in force in respect of any particular vehicle at the time that the regulation is made. This subsection is subject to subsection (3).

(3) The first regulation made for the purposes of this section may provide that subsection (1) applies, from the commencement of the regulation, to a vehicle referred to in subsection (1) (a)-(c) that became subject to a conditional registration on or after 20 May 2002 and before the commencement of the regulation.”

26. The following facts are not in dispute:

1. The forklift is registered and as such the owner is the registered operator unless the operator has ceased to have possession of the vehicle.

2. A person is not taken to have ceased to have possession of a motor vehicle if it is hired for a period not exceeding three months. That is not the case here.

3. Annexure A to the affidavit of Inglis is the certificate of registration for vehicle registration number 22722D (to which reference is made in paragraph 2 of the statement of claim) and is a Yale GDP40VX forklift truck.

4. The forklift truck was supplied for a period of 240 weeks from August 2012 as the purchase order is dated 13 June 2012 (see Annexure C to the affidavit of Inglis). The forklift at the time of the accident was subject to a hiring in excess of three months.

Conclusions

27. The circumstances of the plaintiff’s injury are very similar to Bon Arthur Transport Pty Ltd (in liq) v Caruana [2013] NSWCA 101, where the relationship between leasing and possession is discussed at [40]-[50]. However, the defendant sued in those proceedings was not the lessor of the forklift, but the company which had contracted with the labour hire firm to obtain the plaintiff’s services. Section 3B of the Act is limited to injuries where the vehicle involved in the accident has motor accident insurance cover or gives rise to a work injury claim, neither of which is applicable here.

28. Mr Hart sought to argue that the contractual obligation of the defendant for the maintenance and repair of the vehicle amounted to a form of possession for the purposes of the Act. Even if that were pleaded (which it is not), the obligation of a lessor to repair a vehicle does not give the lessor a right of possession under the legislation.

29. The defendant is neither the principal nor the agent of the driver of the forklift as asserted in the statement of claim. The forklift was supplied for 240 weeks from August 2012 and thus was not in the possession of the defendant in that it was subject to a hiring agreement (Exhibit “C” to the affidavit of Mr Inglis) in excess of three months. The defendant has parted with possession and s 112 of the Act can have no operation. An order for summary dismissal of the claim must therefore be made.

30. This leaves the question of whether the plaintiff’s application to amend should be granted, which raises the following problems:

1. Is the forklift in fact unregistered as claimed?

2. Can the pleading survive the General Steel (General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125) test?

3. Do the provisions of the Act prevent an amendment of this kind?

4. As to any grant of leave to amend under s 65, are there discretionary factors such as prejudice and unreasonable delay to take into account?

Is the forklift unregistered?

31. The proposed amendment pleads that the forklift is unregistered.

32. Mr Sleight sets out (section B of his submissions) the limitations of a third-party policy unless a forklift subject to an unregistered vehicle permit is operated on a road (s 3 of the Act) or to a road related area within the meaning of s 4(1) Road Transport Act 2013 (NSW). This accident is pleaded as having occurred at a workplace, and not on a road. I also note that the three requirements for s 10A of the Act are met in that Exhibit “A” to Mr Inglis’ affidavit confirms that the forklift is subject to conditional registration; r 20(e)(i) Motor Accidents Compensation Regulation 2015 (NSW) therefore apply as the forklift would be classified as industrial plant for the purpose of registration. The claim in paragraph 2 of the proposed amended pleading that the forklift is unregistered is thus misconceived.

33. I also note Mr Sleight’s submission that if the vehicle were unregistered and ought to have had motor accident cover, the plaintiff would need to commence proceedings against the Nominal Insurer or Nominal Defendant (which may require proving that the accident happened on a road or road related area in accordance with s 3 of the Act).

34. The real difficulty for the plaintiff, however, is the absence of any pleaded basis for the alternative claim.

Can the claim survive the General Steel test?

35. The proposed amendment is based upon the assertion that the defendant had failed to take reasonable care in the repair, service and maintenance of the vehicle (paragraphs 7, 9(a) and (l)) or alternatively that the defendant supplied a vehicle with a faulty handbrake. No particulars are provided and the invoices for maintenance disclose no prior complaint or repair.

36. While it is clear that the defendant did inspect the handbrake after the accident and carry out some maintenance, Mr Sleight points to the absence of expert evidence (or any evidence) that this was anything other than an investigation of a vehicle after an accident. Mr Sleight also points to the contemporaneous reports which found that the handbrake had not been properly engaged.

37. In Treadtel International Pty Ltd v Cocco [2016] NSWCA 360, the correct approach to the General Steel test was explained as follows:

“[31] The question for the primary judge was therefore whether the relevant claims are so obviously untenable or groundless that there exists “a high degree of certainty” that they will fail if allowed to proceed to trial; and whether this is one of the “clearest of cases” in which the court may accordingly intervene to prevent the claims being litigated.”

38. The absence of a clear pleading and any particulars make it difficult to answer this question without indulging in an impermissible degree of speculation. What evidence there is points to the accident occurring in the way originally pleaded by the plaintiff, namely failure by the driver to engage the handbrake. There is no prior history of handbrake problems or repairs, or of failure to repair.

39. Mr Hart referred to the forklift as having “one problem after the other” following the least agreement being entered into, and tendered receipts in relation to its maintenance. If the claim is that there was an inherent defect or series of defects in the vehicle, then the defendant in question may be the manufacturer rather than the lessor.

40. However seriously the plaintiff may have been injured, actions for personal injury may still be struck out if they are “obviously untenable” by reason of statutory provisions (WorkPac Pty Ltd v Thearle [2016] NSWCA 303 at [109]) or where the pleadings and particulars disclose “a case which the Court is satisfied cannot succeed” (Perera v Gemworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 at [30]). The claim as formulated is hopeless and cannot succeed, and in those circumstances leave to amend should be refused.

Do the provisions of the Motor Accidents Compensation Act militate against the proposed amendment?

41. Mr Sleight also points out that the legislation under which this claim is brought (namely the Motor Accidents Compensation Act) provides a series of deadlines for the notification of claims, none of which have been complied with in terms of the amendments to the statement of claim which are now proposed.

42. The lateness of the plaintiff’s proposed amendment did not permit Mr Sleight to develop this submission. As I propose to refuse the application to amend on other grounds, I shall not consider this issue further. However, I would observe that to permit the plaintiff to bring a wholly new case based on negligent repair or provision of a faulty vehicle after expiry of the limitation period where the case previously posited was one of vicarious liability for negligent failure to engage the handbrake appears contrary to the policy behind this legislation.

Discretionary factors

43. Mr Sleight raised not only lateness but the prejudice to the defendant of endeavouring to inspect this forklift more than three years after the events in question.

44. There is no excuse for the delay of the plaintiff in raising these issues. The defendant put the plaintiff on notice from the first that the issue of possession would be challenged. On 3 December 2015, the defendant’s solicitors wrote to the plaintiff’s solicitors in the following terms:

“We act for QBE Insurance (Australia) Limited, the public liability insurer of Inglis Equipment Pty Limited (“Inglis Equipment”).

Inglis Equipment have received correspondence from the State Insurance Regulatory Authority (“SIRA”) advising they have received an Application for Exemption from CARS in accordance with certain provisions of the Motor Accidents Compensation Act 1999 (“MACA”).

We understand that:

1. Graham MacDonald was injured on 15 October 2013;

2. the vehicle involved in the accident was owned by Inglis Equipment;

3. the forklift was conditionally registered;

4. QBE issued a CTP policy for the conditionally registered vehicle;

5. QBE have declined to indemnify Inglis Equipment under the CTP policy as the accident did not occur on a road or road related area within the meaning of the Road Transport (Vehicle Registration) Act 1997;

6. notwithstanding that the accident did not occur on a road or road related area, your client seeks to maintain a claim under the MACA against Inglis Equipment.

If you contend that the accident occurred on a road or road related area as defined under the Road Transport Act 2013 please let us know.

If the accident did not occur on a road or road related area it is our view that:

1. the application for Exemption under MACA is misconceived;

2. the MACA does not apply to your client’s claim against Inglis Equipment;

3. SIRA does not have any jurisdiction to deal with the application for exemption of a claim against Inglis Equipment but has jurisdiction to deal with a claim against the driver;

4. Section 3B of the MACA provides that Chapters 3 to 6 of the MACA only apply where the vehicle has motor accident insurance cover that applies to the claim or that the claim gives rise to a work injury claim;

5. The claim against Inglis Equipment is not a work injury claim. MacDonald was not an employee of Inglis Equipment;

6. Where Chapters 3 to 6 of the MACA do not apply to the claim, the procedural requirements under MACA can have no application to the claim against Inglis Equipment;

7. Section 121 of the MACA which provides that the driver of a motor vehicle is taken to be the agent of the owner can have no application in this claim against Inglis Equipment as Section 121 is found in Chapter 5 of the MACA.

Any claim that your client seeks to ventilate against Inglis Equipment will be governed by the Civil Liability Act 2002.

The MACA claim made by your client against Inglis Equipment and the Application for Exemption should be withdrawn.

You should also note:

1. The forklift, the subject of the claim, was owned by Inglis Equipment but was hired to Dywidag Systems International Pty Limited (“Dywidag”);

2. Dywidag had been in exclusive possession of the forklift from August 2012 (more than 3 months);

3. at the time of the accident the forklift was being used by Dywidag;

4. Inglis Equipment had no involvement in the operation of the forklift at the time of the accident;

5. Dywidag was entitled to immediate possession of the vehicle at the time of MacDonald’s accident;

6. Inglis Equipment has no liability for the acts or omissions of Dywidag or its employees;

7. Inglis Equipment can have no liability for the acts or omissions of the driver of the forklift;

8. Section 4 of the MACA sets out the meaning of the term “owner” for MACA claims and the circumstances demonstrate Dywidag was the owner for the purpose of MACA.

With respect your client has no claim against Inglis Equipment arising from the use or operation of the forklift at the time of the accident.

Please let us know before 7 December 2015 whether or not you will withdraw the MACA claim made against Inglis Equipment. We are required to respond to SIRA on or before 7 December 2015. We have forwarded a copy of this letter to SIRA.

Should you have any questions do not hesitate to contact us.”

45. These events occurred in 2013. The Act is predicated upon prompt and full notification of claims and the defendant should not be required to meet a claim which is brought not only very late but in circumstances where the application to amend was brought during the summary judgment application without any prior notice.

46. In Riverina Wines Pty Ltd v Tetra Pak Marketing Pty Ltd, Fullerton J refused leave under s 65 where the delay in bringing the amendments meant that testing the impugned product would be difficult if not impossible, noting at [34]:

“[34] … While the plaintiff is entitled to seek leave to amend its pleading with a view to ensuring that its rights to recover damages are not jeopardised by inattention on the part of those who advised at an earlier time, or by its own a failure to investigate or interrogate the facts that might establish liability, the Court’s extensive power to grant that leave has to take into account the rights of the defendants to fairly present their case in seeking to resist liability. If the defendants’ rights are irremediably prejudiced either by the nature of the amendment that is sought and/or its timing after the commencement of proceedings, then the plaintiff is obliged to conduct its case without amendment. In this case the prejudice to the defendants is palpable. In my view, they cannot effectively meet the case that the plaintiff now seeks to make where there are so few packages of wine available for testing, and where testing of the alternate causal theory is dependant on there being sample packages available.”

47. For the same reasons as those set out by Fullerton J, there are strong discretionary factors for the refusal of leave to amend. In the present case, the defendant is further handicapped by the absence of the kind of clear and concise pleading which Fullerton J noted had finally been put before the court (at [33]-[34]).

48. Accordingly, leave to amend the statement of claim is refused.

49. The result is that the proceedings should be struck out and dismissed. Costs should follow the event, I have made an order to this effect, but I have granted liberty to apply.

Orders

1. Plaintiff’s application for leave to amend the statement of claim dismissed.

2. Statement of claim struck out and dismissed.

3. Plaintiff pay defendant’s costs of the application and of the proceedings, with liberty to apply.

4. Exhibits retained until further order.

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Decision last updated: 23 March 2017