Martin v Western Australian Sports Centre Trust
[2021] WADC 125
•16 DECEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MARTIN -v- WESTERN AUSTRALIAN SPORTS CENTRE TRUST [2021] WADC 125
CORAM: REGISTRAR KINGSLEY
HEARD: 30 NOVEMBER 2021
DELIVERED : 16 DECEMBER 2021
FILE NO/S: CIV 2788 of 2016
BETWEEN: ASHLEE MARTIN
Plaintiff
AND
WESTERN AUSTRALIAN SPORTS CENTRE TRUST
Defendant
Catchwords:
Practice - Application to amend defence - Brought after action listed for trial
Legislation:
Nil
Result:
Application partially successful
Representation:
Counsel:
| Plaintiff | : | Mr R D McCabe |
| Defendant | : | Mr P E Jarman |
Solicitors:
| Plaintiff | : | Slater & Gordon |
| Defendant | : | Jarman Legal |
Case(s) referred to in decision(s):
Di Vincenzo v McKrill [2005] WASCA 222
Girgis Nominees (WA) Pty Ltd v Poliwka [No 5] [2019] WASC 51
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
REGISTRAR KINGSLEY:
In an indorsed writ filed 3 August 2016 the plaintiff pleads a claim for personal injuries as a result of a fall on 13 August 2013 at the defendant's premises at Arena Swim Club. A statement of claim was filed on 3 March 2017 which pleads that, whilst the plaintiff was instructing swimming students, she was walking behind diving blocks between lanes zero and three when she slipped and fell to the ground thereby suffering injuries. The plaintiff alleges there was water on the tiled area where she was walking.
At par 14 the plaintiff particularises the defendant's breach of its common law duty of care, relevantly in failing to take any or any adequate steps to remove or reduce the danger to the plaintiff by ensuring that the tiles around the pool were sufficiently non‑slip, and failing to ensure that non‑slip mats were present around the edge of the pool. At par 15 the plaintiff pleads a breach of the Occupational Safety and Health Act 1984 (WA) and Occupational Safety and Health Regulations 1996 (WA) (collectively OSH).
On 21 April 2017 the defendant's then lawyers filed a defence which broadly could be categorised as a bare defence. Relevantly the plea by the plaintiff that she slipped is not admitted and the pleas of breach of the common law duty of care and breach of OSH are denied.
On 22 March 2021 the action was listed for an 11‑day trial commencing 12 April 2022. The parties were given leave to adduce expert evidence and orders were made programming the timing of the exchange of non‑medical expert witness. On 29 March 2021 defendant's then counsel certified that the pleadings adequately defined the issues of fact and law that are to be determined at trial.
In September 2021 the defendant changed representation to the current lawyers. On 14 October 2021 the defendant brought an application for leave to issue a third‑party notice and on 28 October 2021 brought an application for leave to file an amended defence. That amended defence is attached to the affidavit of Laura Jayne Bendelin sworn 28 October 2021.
The proposed amended defence makes minor amendments to some paragraphs but importantly, in relation to par 14 of the statement of claim, now puts forward a positive case.
The positive case is that the tiles at the accident site were of low contribution of floor surface to the risk of slipping, in accordance with Australian standards, and that there was no requirement nor recognition for the defendant to put down rubber matting in the area. Further the fact the tiles were wet and slippery was an obvious risk (s 5N and s 5O Civil Liability Act 2002 (WA)).
The defendant goes on to plead at par 15 that the tiles were water wet slip resistant, that it regularly cleaned the tiles and commissioned periodic slip resistant testing.
At par 15.4 the defendant pleads that slip resistant testing safety analysis was undertaken by a suitably qualified expert in January 2013 who reported the tiles had a low contribution to the risk of slipping and at par 15.5 the expert did not consider matting to be recommended.
At par 16 the defendant goes on to plead that if the defendant was negligent or in breach of its duty then the defendant is not liable by reason of s 6 of the Occupiers' Liability Act 1985 (WA) (OLA) in that it reasonably relied on the expertise of the expert, and it exercised reasonable care in the selection and supervision of the expert.
Legal principles
Both counsel for the plaintiff and defendant agreed that the principles surrounding late amendment were well known. I was referred to the comments of Vaughan J in Girgis Nominees (WA) Pty Ltd v Poliwka [No 5] [2019] WASC 51 [8] where his Honour stated 'the principles that apply on late amendment applications are not in doubt'.
In relation to the lateness of the amendment the application has been brought promptly after the change of representation.
But it is the case that the defendant had ample opportunity to plead out the case they now wish to present. I note that the expert was briefed probably late 2012 as he gave a report to the defendant on 23 January 2013 (see the affidavit of Joel Bernard Schneider filed 26 November 2021). Direct evidence could have been filed in relation to the failure to plead the case now sought to be pleaded. Accordingly, the only explanation for the lateness of the amendments is that new counsel and solicitors have been appointed.
In considering the application I am applying the observations of Beech J in Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 as supplemented by Edelman J's observations in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406.
Defendant's submissions
The defendant submits that parties should be permitted to amend their pleadings so that the real issues in dispute between the parties may be determined unless the amendment would cause injustice to the other party which could not be adequately remedied by an order for costs. The defendant submits the plaintiff would not be prejudiced by the amendments as it narrows the issues and the plaintiff has been aware of the expert's report from January 2013, and the contents of that report since 2018.
Plaintiff's submissions
The plaintiff's written submissions were based on the minute attached to Ms Bendelin's affidavit. Notwithstanding the brief opportunity to review the proposed amended defence dated 30 November 2021, the plaintiff's counsel argued that there was always prejudice when a plaintiff must now meet a positive case from a defendant at a late stage. As the plaintiff's counsel submits, whilst the question of the tiles was always an issue, the case the defendant now puts forward is that the tiles were wet slip resistant, that the tiles were cleaned daily, and it had commissioned the expert to carry out slip resistant testing.
Paragraph 16 of the proposed amended defence pleads s 6 of OLA. Plaintiff's counsel submits that this raises issues around the Limitation Act 2005 (WA). Plaintiff's counsel goes on to submit that par 16.4 does not contain any material fact, and that par 16.5 simply repeats s 1(b) of OLA without putting any content, leaving it for the plaintiff to infer what work the expert independent contractor was engaged to do.
Discussion
The starting point is whether leave should be granted to amend the defence and then whether this minute should be allowed in. The proposed amendment comes some four months prior to an 11‑day trial. The defendant on its application obtained an extension of time to serve a copy of any non‑medical expert witness to 19 November 2021. The plaintiff then, notwithstanding the Christmas holiday season, still has sufficient time to obtain responsive reports.
The amendments have importance to the defendant as it now can lead evidence surrounding the wet slip resistance of the tiles and need for anti‑slip mats. In this case the defendant is not raising just any arguable case but is one that was reasonably open at the outset of the pleadings.
Notwithstanding the late stage of the amendment I am of the opinion leave ought to be given to amend the defence with respect to the tiles. Without such amendment the real issue surrounding the tiles may not be ventilated and the trier of fact will have the advantage of considering all of the expert evidence.
Turning to the proposed amended defence, some amendments are non‑controversial. As to propose par 15.2, the material fact is that the tiles at the accident site were cleaned daily. That statement of fact may be proved by documentary or oral evidence. I would allow par 15.2 in.
Paragraph 15.3 in my opinion does not add anything to par 15 and requires particulars. The plea at par 15.1 is that the tiles were water wet slip resistant and there is a factual basis for that statement. The fact the expert was commissioned to carry out resistance testing prior to the accident does not, in my opinion, form a basis of defence. In my opinion par 15.3 should be disallowed.
Paragraph 15.4 and par 15.5 do add content to the plea at par 15.1. The facts stated in those paragraphs do not catch the plaintiff by surprise. I would allow par 15.4 and par 15.5.
In my opinion the proposed amendment at par 16 of the proposed defence does prejudice the plaintiff at this late stage. In my opinion the proposed plea at par 16 opens entirely new lines of enquiry.
The content of s 6 of OLA is that the occupier is not vicariously liable for the acts of their independent contractor, in this case the expert, where two conditions are met.
These conditions are that the occupier exercised reasonable care in the selection and supervision of the independent contractor, and it was reasonable in all the circumstances that the work the independent contractor was engaged to do should have been undertaken.
Under a s 6(1) OLA plea, proof that the damages claimed were due to the negligence of the independent contractor is the foundation of the defence. The defendant will have to bring evidence on the issue whether the defendant exercised reasonable care on both the selection and supervision of the independent contractor (see Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298; Di Vincenzo v McKrill [2005] WASCA 222).
I have concerns that the expert is not an independent contractor, and therefore s 6 of OLA has no application. This issue was not argued before me and I do not intend to develop that matter. However, it does illustrate that the plaintiff, at this late stage, would have to embark on a fresh enquiry.
For the defendant to now embark on those lines of enquiry at this late stage in my opinion imposes a great prejudice on the plaintiff. The plaintiff under the proposed par 16 would be required to call responsive evidence closely examining what the expert did or should have done, the level of supervision, and perhaps whether the expert was an independent contractor.
In any event pars 16.3, 16.4 and 16.5 require particularisation. Each of those three subparagraphs plead a conclusion without giving the content of how that conclusion is arrived at. Accordingly, I disallow par 16 of the proposed minute.
I will hear counsel on the form of orders and on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
16 DECEMBER 2021
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