Marsden v Ydalia Holdings (WA) Pty Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MARSDEN -v- YDALIA HOLDINGS (WA) PTY LTD [2004] WADC 33

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 30 JANUARY 2004

DELIVERED : 25 FEBRUARY 2004

PUBLISHED : 5 MARCH 2004

FILE NO/S: CIV 2109 of 2001

BETWEEN: ANDREW GEORGE MARSDEN
Plaintiff
AND
YDALIA HOLDINGS (WA) PTY LTD (ACN 067958561)
Defendant

Catchwords:

Practice and procedure - Practice and procedure under the Rules of the Supreme Court of Western Australia 1971 - Application of defendant to amend pleading - Function of pleading and of particulars

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr G Porter
Defendant: Mr R E Keen

Solicitors:

Plaintiff: Talbot & Olivier
Defendant: Srdarov Richards Burton

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The circumstances of the plaintiff's accident are described in par 7, par 8 and par 9 of the statement of claim. He was riding his bicycle on a dedicated path at a height measured by the top of a river wall. Upon approaching a mesh barrier placed across the path and a sign cautioning cyclists to dismount and walk he commenced to dismount. In the process of dismounting the front wheel of his machine dug into soft sand adjacent to the path and he lost balance and control of his bicycle and fell down the face of the river wall onto rocks at the river's edge.
The context in which the negligence of the defendant is portrayed is that it had erected the barrier and sign in order to exclude the public from an area of the path on which it was undertaking excavation.
It is part of the plaintiff's case expressed at par 6 that the changes to the site in the form of the excavation, the barrier and the sign required a cyclist to leave the path and traverse ground described as the unsealed section for a distance some 1.8 metres in order to utilise the capping on top of the river wall as a pathway around the excavation. Presumably the requirement to take that course was dictated by the exclusion of any other option by the barrier. The unsealed section was comprised of soft sand.
I am satisfied that for the purposes of the application, the soft sand, which impeded the tyre, was part of the unsealed section.
The recent course of amendment to the pleadings commenced with the plaintiff filing an amended statement of claim. The defendant then filed an amended defence. The plaintiff contested that amended pleading and on 1 December 2003 succeeded in that application. On that day the defendant was ordered to file any proposed application to amend within 10 days and it is that application that is presently before me for determination. To the extent that by the proposed amended pleading the defendant pleads to material introduced by way of the amended statement of claim it has been put in the position of seeking to plead as of right. Be that as it may, the parties were able to utilise the application to test the proposed pleading.
At par 7 the defendant purports to admit and aver. Apart from some discrete non-admissions, each and every allegation in par 6 of the amended statement of claim is denied. Despite that denial, par 7.1 and par 7.2 purport to admit facts and introduce a consequence of the changes to the site in the form of the requirement that a cyclist would dismount.
The plaintiff submitted that the allegations relating to that requirement are embarrassing.
It is difficult to conceive that is so. The defendant attributes the requirement to the changes to the site. Both parties refer to the changes to the site as requiring a cyclist to take some action.
Be that as it may, the manner in which the defendant purports to admit is such as to suggest a case put by the plaintiff that is not consistent with the plaintiff’s case.
Paragraph 10 responds to par 9 of the statement of claim. In part of that paragraph the defendant purports to admit that the plaintiff fell off the river wall capping. The plaintiff does not so allege at par 9.
The plaintiff's complaint in relation to the balance of par 10 goes to the allegation that the unsealed section did not and would not cause difficulty in dismounting as alleged or at all. He complains that the allegation is an unsupported conclusion.
As to the first of the alternative cases pleaded, the only relevant allegation of the plaintiff is characterised as endeavouring to dismount. In that endeavour the front wheel of his machine dug into soft sand and he lost control, lost balance and fell. On my reading of par 10, it is to the whole or some part or parts of that sequence that the phrase "difficulty in dismounting" refers. The defendant does not expressly constitute the whole or any part of the sequence expressed in the plaintiff's case to any attribute of the unsealed section. However at the time the only part of the plaintiff or his bicycle in contact with the unsealed section were the tyres.
In my opinion it is appropriate to consider the pleading as a whole. As I read the defence, the justification for either of the alternatives pleaded could only be is that the unsealed section was constituted by compacted sand and crushed limestone. The conclusion expressed at par 10 is sufficiently founded. It applies to each of the alternative cases put.
At par 12 the defendant has chosen to plead to a series of particulars of the allegation of breach of duty of care. The first such particular is the defendant’s failure to construct a temporary sealed path to the north of the river wall.
It is not clear whether the temporary sealed path proposed by the plaintiff at par 11(a) would run parallel to the wall so as to provide commuters with a choice between the river wall capping and the proposed path as the means of passage. Paragraphs 6 and 11(a) would bear an interpretation that any such path would simply carry commuter traffic across the unsealed ground consistent with the direction of travel of the heavy usage to the wall. That is, a path roughly perpendicular to the wall.
Be that as it may it is my understanding that the defendant's appreciation of the plaintiff’s case is that the temporary sealed path is one that is parallel to the wall.
At par 12.1 the defendant alleges that it was not practical, feasible, necessary or reasonable to construct the proposed path.
In opposition to the application the plaintiff attacked not only what he contended were unsubstantiated allegations but also the sufficiency of the particulars.
Perhaps before I embark upon any analysis of the particulars I will record that in my opinion if a particular defines the impact of an allegation contended by the pleading party and sufficiently articulates that definition it would serve the purpose for which particulars are intended.
Paragraph 12.1.1 of the defence refers to the distance between the river wall and a building as being insufficient to accommodate a temporary path. That insufficiency is expressed by reference to the undefined use of undefined machinery.
In considering the sufficiency of particular I might reflect on the plaintiff's expressed interest in the dimensions of the machinery or what may be their "operational" dimensions, taking into account the tasks to be performed, any constraints imposed by the context in which they were in use, their turning circles and the like.
It is a matter of considering whether the defendant ought to be expected to provide such particulars along with the pleading. In my opinion whatever the reason for the application being made at a late stage in the action, the fact that it is made at a late stage in the action would tend to favour the result that by any measure the pleading ought to be sufficient and fully particularised. Although that consideration is persuasive, the defendant's proposal is one in relation to which some considerable amount of detail may be provided. In my opinion the wiser course would be to allow for the plaintiff to formulate a request in relation to the particulars that he may require. The defendant could then consider such a request.
In my opinion the defendant defines the case that it would seek to put. My difficulty is that I do not know to which allegation the particular relates.
Particular 12.1.2 refers to the fact and prospect that the excavation had or would cause sand slip that had or may cause undermining of any temporary path in the area. The term "the area" is undefined.
Again I do not know to which allegation the particular relates. Conceivably it is to the fact or prospect that it was not practical to construct a temporary sealed path.
The plaintiff complains that the particular is incomprehensible.
As a matter of logic it seems to me that if the term "the area" would cover all of the features of the terrain close to the excavation addressed by the pleadings, it would apply to the unsealed ground over which the changes had required commuters to travel and which was actually in use by commuters. Perhaps that prospect provides part of the plaintiff's difficulty.
In my opinion the particular suggests the need for appropriate allegations of material fact that have not been presented anywhere in the pleading.
Particular 12.1.3 proposes that the temporary path would need to be closed whilst machinery was operating.
The plaintiff complains that the particular is vague.
My difficulty is in appreciating to which part of the allegation the particular relates. Conceivably it may somehow bear upon the allegation that to construct a temporary path was not reasonable. If that is the case or part of the case that the defendant seeks to put in relation to that allegation, then subject to it being expressed in terms that relate to that allegation, it is free to do so.
Paragraph 12.1.4.1 provides that the intermittent closure of the temporary path would present a cost. At par 12.1.6 the defendant states that the employment of additional workers was unreasonable.
Particular 12.1.5 refers to the safety of dismounted traffic utilising the wall. The complaint of the plaintiff is that it is an unfounded conclusion.
Presumably the particular relates to the allegation that to construct a temporary path was not necessary. I do not have a problem with that particular. It indicates a limit on part of the case put at par 12.1.
Particular 12.1.6 provides that having regard for the nature of the works their cost and duration, the construction of a temporary path was unreasonable. The plaintiff complains that the particulars are insufficient and that they amount to unsupported conclusion.
In my opinion by par 12.1.6 the defendant defines what I appreciate is at least part of its case in relation to that allegation. In my opinion the particular serves its purpose.
As to par 12.1 it is the plaintiff's contention that it expresses allegations in the form of conclusions unsupported by allegations of material fact.
I agree. The fact that the defendant has given particulars of the allegations could not remedy any such deficiency. Particulars only serve to limit the scope of an allegation of material fact, not to justify a conclusion put in the form of such an allegation.
At par 12.2 the defendant alleges that it was not necessary or reasonable to seal the unsealed area. The unsealed area to which the defendant refers is not defined other than by reference to par 11(b) of the statement of claim where, by a particular of breach of duty, the plaintiff refers to the defendant’s failure to ensure that the area where he dismounted was or remained sealed.
It is not clear from the plaintiff's case that he did dismount in the sense that at least he would have fallen to the ground. The fall is described as being over the wall and onto the rocks at the foot of the wall.
The only references to the unsealed section by the parties are as to its width, constitution and location and that it was traversed by the heavy usage described by the plaintiff.
Be that as it may I accept that in their respective pleadings each party intended to refer to an unspecified part of the unsealed section. Presumably the breach of duty refers to the prospect that the defendant should have sealed either the path to the wall suggested by par 6 or some larger portion of the unsealed area.
Without knowing the plaintiff's case it is difficult to understand how the provision of a sealed area would accommodate the defendant's contention that so to do would be unreasonable or unnecessary.
Fortunately the only issue raised in relation to the defendant's pleading relates to the particulars.
Particular 12.2.2 provides that the unsealed area provided a visual and clear demarcation between the path and the wall.
While the particular purports to express a limitation on the case alleged at par 12.2, in my opinion it does not respond to either of the alternative cases presented.
Particular 12.2.3 proposes that to seal the unsealed area would have reduced or eliminated the demarcation and encouraged disobedience of the signs.
In my opinion it purports to provide three distinct particulars. Again my difficulty is in understanding how they relate to the alternative cases.
Particular 12.2.4 provides that cyclists had been directed by the signs to stop and dismount whilst on the path. The plaintiff complains that it is simply conclusion, alternatively that it is ambiguous, as it does not specify whether cyclists were required dismount whilst on the path.
Before I deal with those objections I will make two observations. The first is that in my opinion 12.2.4 is the first particular that would appear to relate to one of the allegations. The second is that the difficulty to which the plaintiff refers in the form of the ambiguity is repeated at 12.2.4, it first appears at 12.2.3.
Implicitly the defendant may be contending that at the time that a cyclist reached that area that the plaintiff contends ought to have been sealed, he ought to have been a pedestrian. That prospect is bound up in the ambiguity presented by the reference to the place of dismount that may implicitly have been expressed on the sign. Up until that point in the pleading there has been no suggestion that the sign designated where a cyclist should dismount. At the very least the particular as to the direction on the sign appears to be different to the case put by the defendant at par 6.
As to whether the place of dismounting should be put as an allegation of material fact that is for the defendant to consider. If the only point at which any direction to dismount on the path is sought to be raised is in the context of putting a case against sealing the area on which the plaintiff dismounted, the defendant is entitled to follow that course. If it seeks to maintain the limited case that it puts at par 12.2 then it should be put in a clearer manner than is expressed at par 12.2.4.
Particular 12.2.5 is in more or less the same terms as 12.1.6. The plaintiff makes the same complaint but the result is the same.
Paragraph 12.3 pleads that it was not feasible, necessary or reasonable to erect a barrier. I gather that it responds to par 11(c) of the claim, which seeks to define the plaintiff's allegation by a failure to erect a partial barrier fence along the edge of the river.
I have no idea what the plaintiff has in mind by reference to a partial barrier fence. The edge of the river is a term that had then only previously used to describe the terrain at the bottom of the river wall at par 4.3 of the statement of claim. Implicitly the plaintiff would contend that such a fence would have restrained the dismounting or falling plaintiff at the top of the wall.
The attack on the defendant's pleading and the particulars is mounted on the basis that they are only conclusions.
I will first consider the particulars. As to the allegation that such a barrier would not be feasible, at 12.3.1 the defendant introduces the qualification "effective" to describe the proposed barrier. Presumably that would imply a barrier that would have restrained all manner of falls that might be anticipated. I do not know whether the plaintiff was proposing such a barrier.
At par 12.3.1.1 the defendant's case that to construct an effective barrier was not feasible is limited by the proposition that any such fence could not be securely attached to the wall as it was constructed.
I assume that by par 12.3.1.1 it is at least proposed that the barrier could not be attached to the wall. What it means beyond that prospect I do not know.
At par 12.3.1.2, although the defendant purports to give a particular of the allegation that it would not be feasible to erect an effective barrier it appears to me that the prospect of misuse of such a facility would not resonate with that allegation.
As to the allegation that to provide such a barrier was unnecessary, the defendant pleads at par 12.3.2.2 the same direction to which I have made reference in my comments relating to par 12.2.4. And there is no reason why the result would not be the same.
Otherwise I appreciate that the case changes. At the latter point the barrier considered by the defendant would only be to mark the edge of the river wall rather than an effective barrier. I suspect that is not the case put by the plaintiff. It is for the defendant to determine the case that it seeks to put. The role of the court is to determine the cases that the parties seek to put.
As to the allegation that to provide such a barrier was unreasonable, the defendant provides particulars at par 12.3.3 that are similar to the case put at par 12.1.6 but the result is the same.
As to the allegation at par 12.3 that it would not be feasible to erect a barrier; given the wall, to describe the erection of a barrier as not being feasible requires more context. In my opinion considering the particulars, the only case that would sustain the conclusion is that put by par 12.3.1. If that is the only basis for the conclusion expressed then in my opinion it should be pleaded as an allegation of material fact. As it stands the allegation that erection of a barrier was not feasible is an unsupported conclusion.
Necessity may be justified by the terms of the sign as par 12.3.2.2 suggests. As I have already recorded in relation to par 12.2.4, what is missing is any clear commitment to either a case or cases in relation to the requirement expressed on the sign or signs.
As to the allegation at par 12.3 that it was not reasonable to erect a barrier, par 12.3.3 simply defines the case put by the relevant allegation, it does not provide a pleading to support the conclusion expressed.
At par 14 the defendant pleads the plaintiff's voluntary assumption of risk by entering upon soft sand. The fundamental objection in relation to that plea is that it is a conclusion not supported by allegation of material fact.
In my opinion the allegation is supported by the allegations expressed at par 3, par 6, par 7 par 9, par 13 and par 15 of the defence. Those allegations are not rendered as particulars simply because they are rounded up and expressed as such at par 14.1 and par 14.2. That is simply how the defendant has chosen to limit the allegation. It is coincidental that it chose to do so in the same terms as the allegations of material fact elsewhere expressed. The pleading would be a good pleading in the absence of those particulars.
At par 14.3 the defendant provides particulars of knowledge in the context of the plea of the voluntary assumption of risk. The plaintiff complains that the particular that the plaintiff knew or ought to have known certain matters is unsupported. In my opinion a particular need not be supported, it only serves to limit the case pleaded.
By par 14.4.5 the defendant seeks to draw an inference from the plaintiff’s professional or occupational experience in assessing risk as an occupational health and safety specialist. The plaintiff complains that the pleading is embarrassing. It is difficult to understand that the particular is embarrassing. That particular defines part of the scope of the allegation the voluntary assumption of risk upon which it will seek to rely. The defendant is not required to explain why he seeks to draw on the plaintiff’s experience in putting that case.

By par 14.5 the defendant expresses a particular of the allegation of voluntary assumption of risk in terms that the plaintiff willingly chose to ride or attempt to ride his bicycle across the unsealed section.
The plaintiff submits that thereby the defendant pleads an unsupported conclusion.
In the context of the pleadings as a whole it is difficult to know what to make of the prospect that there was an attempt to ride, conceivably it may cover forward motion even in the context of commencing or attempting to dismount. The plaintiff presents both of those prospects as willed acts. On the defendant’s case the plaintiff failed to dismount or alternatively attempted to ride across the unsealed section, again willed acts. I do not have any difficulty with the particular. It simply defines the case.
At par 15.4.1, of the allegation that the plaintiff rode or attempted to ride or dismount onto the river wall the defendant portrays that was contrary to warnings and directions in the signage, in particular the dismount sign.
The plaintiff submits that the allegation is embarrassing as it refers to signs without stating what they say.
At par 6 the defendant defines the dismount sign as a warning and directing cyclists. That pleading is expressed in a context that suggests that there were eight signs that would fit that description. Reference is made to the dismount sign at par 15.1. No other sign is referred to by way of allegation of material fact, although as I have recorded, in particulars a sign or sign may have been specific as to the point of dismounting. It is apparent at par 15.4.1 that there may have been different signs.
I agree with the plaintiff, the pleading is embarrassing the defendant can only resolve the issue by pleading a consistent case or expressly pleading inconsistent or alternative cases.
In my opinion the defendant ought not be permitted to amend in terms of par 7.1 and par 7.2, the first sentence of par 10, par 12.1, par 12.2.2, par 12.2.3, par 12.2.4, par 12.3 and par 15.4. My reasons would suggest that particulars of some of those allegations would also not be permitted but it is my understanding there is no need to deal with them expressly as particulars could not stand-alone.

[2004] WADC 33

5 March 2004