McIntosh v Electaire Pty Ltd
[2019] ACTSC 76
•28 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McIntosh v Electaire Pty Ltd |
Citation: | [2019] ACTSC 76 |
Hearing Date: | 1 March 2019 |
Further Submissions Received: | 18 March 2019 |
DecisionDate: | 28 March 2019 |
Before: | McWilliam AsJ |
Decision: | See [44] |
Catchwords: | PRACTICE AND PROCEDURE – Application to amend statement of claim to add new cause of action – whether amendments arise out of substantially the same facts – whether it is appropriate to grant leave under Court Procedure Rules 2006 (ACT) r 503(4) – where explanation unsatisfactory but nature of amendments limited to matters of law and no prejudice to defendant – application granted |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 102 Court Procedure Rules 2006 (ACT) rr 502, 503 Work Health and Safety Act 2011 (ACT) |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Balnaves v Armellin [2011] ACTSC 67 Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238 |
Parties: | Kieron McIntosh (Plaintiff) Electaire Pty Limited (ACN 008510245) (First Defendant) Manteena Pty Ltd (ACN 67065576052) (Second Defendant) |
Representation: | Counsel D Shillington (Plaintiff) C Deans (First Defendant) L Sherman (Second Defendant) |
| Solicitors Gabbedy Milson Lee (Plaintiff) Moray & Agnew (First Defendant) HWL Ebsworth (Second Defendant) | |
File Number: | SC 445 of 2017 |
McWilliam AsJ
The plaintiff in these proceedings was employed as an air conditioning mechanic by the first defendant, Electaire Pty Limited. The second defendant, Manteena Pty Limited, was the head contractor on the site located in Bonython in the Australian Capital Territory (the Territory). On 12 December 2014, the plaintiff alleges he was removing air conditioning units from the roof of a building when he fell from a ladder, suffering injuries to his left arm which has had ongoing consequences, resulting in an inability to continue his employment since the time of the accident.
By Statement of Claim dated 17 November 2017 (Claim), the plaintiff has brought a claim in negligence against his employer, the first defendant and the head contractor, the second defendant.
The application before the Court filed 25 February 2019 seeks to amend the Claim to add a statutory cause of action based on breaches of the Scaffolding and Lifts Regulation 1950 (ACT) (Scaffolding Regulation). The critical amendments the plaintiff seeks leave to plead are:
(a)that the plaintiff was engaged in ‘building work’ for the purposes of section 2 of the Scaffolding and Lifts Act 1912 (ACT); and
(b)that the first and second defendants each failed to comply with regulations 73(1)(a), 73(1)(b), 73(1)(c), 80(6) and 80(7) of the Scaffolding Regulation.
The first defendant neither consents to, nor opposes, the plaintiff’s application. The second defendant opposes the application on the basis that the amendments proposed raise a cause of action which is barred by the Limitation Act 1985 (ACT) (Limitation Act).
By virtue of s 16B of the Limitation Act, the limitation period in respect of the additional cause of action expired 3 years after the date the cause of action was complete. In this case, the accident occurred on 12 December 2014 and the damage suffered was immediate and ongoing.
It is clear (as the plaintiff accepted) that the cause of action for breach of statutory duty expired on 11 December 2017.
The Court’s power
The Court has the power to grant leave in respect of the amendments proposed pursuant to r 503(4) of the Court Procedure Rules 2006 (ACT) (Rules). The relevant parts of the rule are as follows:
503 Amendment—after limitation period
(1)This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
…
(4)The court may give leave to make an amendment to include a new cause of action only if—
(a)the court considers it appropriate; and
(b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
Rule 502 also arose on the amendments that were initially proposed at the hearing. It is relevantly as follows (notes omitted):
502 Amendment—of documents
(1)At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.
(2)The court may give leave, or give a direction, on application by the party or on its own initiative.
…
(3)The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
…
(4)If there is a mistake in the name or identity of a party …
(5)This rule does not apply in relation to an amendment of an order.
(6)This rule is subject to rule 503 (Amendment—after limitation period).
Issues
Having regard to the content of the above rules, four issues arise for consideration and resolution on the present application. They are as follows:
(1) Whether the amendments now proposed involve pleading a new cause of action.
(2) If so, whether the amendments arise out of the same facts or substantially the same facts as the existing cause of action, and
(3) If so, whether it is appropriate to exercise the discretion under r 503(4) of the Rules.
(4) If the amendments do not amount to pleading a new cause of action, whether the Court should exercise its discretion to permit the amendments under r 502 of the Rules.
If the answer to each of the first three considerations is yes, the fourth consideration will fall away.
Relevant principles
Whether the amendments proposed constitute a new cause of action
The term ‘cause of action’ has been defined broadly as being ‘every fact which is material to be proved to entitle the plaintiff to succeed’: Cooke v Gill (1873) LR 8 CP 107 at 116.
An amendment claiming a breach of statutory duty in a claim pleaded in negligence is a new cause of action: see Botany Wools (Aust) v O’Grady (1964) 64 SR (NSW) 359.
Whether the new cause of action arises out of substantially the same facts
A number of the authorities have been helpfully surveyed by Refshauge J in Meredith v Commonwealth of Australia [2009] ACTSC 168 at [29]-[33] and by Master Mossop (as his Honour was then) in Naidu v Ferguson [2013] ACTSC 208; 8 ACTLR 150 (Naidu) at [53]. It is unnecessary to repeat the exercise here. Essentially, the task of determining whether the test has been satisfied is a discretionary one – it is “a matter of impression” (Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409); of “degree and impression” (Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238 at [24]); or, “a question of degree” (Borsatov Campbell [2006] QSC 191 at [17]).
It suffices for the present Claim to describe the test as being where the overlap between the essential facts pleaded is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action.
Considerations relevant to whether it is appropriate to grant leave
Although the discretion is unconfined (see McGee v Yeomans [1977] 1 NSWLR 273 at 280), matters that have been considered relevant in the authorities already referred to above include: the extent of and explanation for the delay; hardship to the plaintiff if the amendment is refused; prejudice to the defendant if the amendment is granted; the fault of the plaintiff or his advisors; and, any knowledge the defendants had of the new cause of action.
The explanation for the delay may include the circumstances giving rise to the amendments, such as where information was not previously available, or where there was no forensic choice made: see Naidu at [67].
If the amendments necessitate the adjournment of dates set down for trial and the new claims raised are due to a deliberate tactical decision, the party making the application bears a heavy burden to show why, under a proper reading of the applicable rules of the court, leave should be granted: Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175 (Aon) at [4] per French CJ.
Issue 1: Whether the proposed amendments involve pleading a new cause of action
The affidavit attaching the proposed amendments in draft form initially failed to identify that the matters raising a breach of the Scaffolding Regulation were part of a separate cause of action for breach of statutory duty. Instead, the amendments were included as part of particulars of the existing pleaded cause of action in negligence. It appeared to me from that proposed pleading that the application enlivened r 502 of the Rules, not r 503.
However, this was inconsistent with how the parties had argued the application, which was on the basis that the plaintiff was seeking leave to add a new cause of action separate to that of negligence. Having drawn this to the parties’ attention following the hearing, the plaintiff now proposes a revised draft amended statement of claim, where what is pleaded are causes of action in ‘negligence and statutory breach’.
The second defendant continues to object to the proposed amendment for the same reasons as those articulated during the hearing, but otherwise did not wish to be heard further.
On the authorities set out above, a breach of statutory duty is a separate cause of action. As it was not raised previously in the Claim, the proposed amendments involve pleading a new cause of action, which enlivens r 503 of the Rules.
Issue 2: Whether the amendments arise out of substantially the same facts
The Claim currently alleges that the plaintiff was in the course of his employment removing air-conditioning units from the roof of a building, when he fell from a ladder, landing on the ground.
The particulars of negligence presently alleged include, among other things:
(a)Failing to establish and maintain a safe system of work;
(b)Failing to establish and maintain a safe workplace;
(c)Failing to provide a safe ladder;
(d)Requiring the plaintiff to work at an unsafe height without a harness, or catch platforms or scaffolding in place; and
(e)Failing to ensure safe access and egress to and from the plaintiff’s work location.
The Claim also refers to failing to comply with safety procedures pursuant to the Work Health and Safety Act 2011 (ACT) relating to working at heights. However, this was not pleaded in sufficient detail to enable a proper understanding of the allegation, the part of the statute relied upon is not self-evident, and the parties did not address this particular at all during the hearing. I have therefore put it to one side.
The proposed amendments raise regs 73 and 80 of the Scaffolding Regulation. Regulation 73(1) requires a person who carries out any building work to take measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in building work. This includes:
(a)Providing suitable and safe scaffolding;
(b)Providing and maintaining a safe means of access to every place where a person has to work; and
(c)Providing a means by fencing or otherwise for securing the safety of any person working at a place from which the person would be liable to fall a distance of more than 6 feet.
The breach of statutory duty proposed to be pleaded relates to the same fall from the ladder as that giving rise to the cause of action in negligence, and it can be seen that the requirements of the Scaffolding Regulation squarely overlap with the particulars of negligence already pleaded.
Regulation 80 deals specifically with ladders. Regulations 80(6) and 80(7) require every ladder to be securely fixed so that it cannot move either from its top or bottom points of rest, and if not practicable, then a person shall be stationed at the base of the ladder to prevent slipping.
These requirements also overlap with the particulars of negligence already pleaded. Accordingly, this is a clear case where the proposed amendments arise substantially out of the same set of facts pleaded in negligence. The only change to the pleading is that the same conduct is said to be a breach of legislation, namely the Scaffolding Regulation.
Issue 3: whether it is appropriate to exercise the discretion under r 503(4) of the Rules.
Explanation for the delay
The amendments sought to be made are more than a year out of time. The explanation for the delay is brief. The entirety of the affidavit affirmed by the solicitor for the plaintiff is as follows:
1. I am the solicitor for the Plaintiff in these proceedings;
2. I have received advice from Mr Shillington of Counsel that amendments to the subject Form 2.4 are required as outlined in the Amended Form 2.4 which is annexed hereto and marked with the letter “A”.
3. Mr Shillington has advised that the amendments rely on the same facts as per the original Form 2.4.
This is hardly a satisfactory explanation and pays scant regard to the requirement on an application such as this to disclose fully the circumstances that give rise to the late amendments. For example, the evidence does not establish why the amendments were not included when the Claim was originally pleaded, particularly given that the law on which the plaintiff now seeks to rely does not appear to be newly introduced. There is no explanation of who settled the original pleading, nor is there any hint of when counsel’s advice was sought or received, or why counsel’s advice was not sought earlier.
It is also significant that the substantive proceedings were listed for a final hearing in February of this year. The hearing was vacated at a very late stage, because it appeared that the plaintiff required further surgery and the injuries had not stabilised.
Having heard further from counsel for the plaintiff during the hearing, the explanation for the delay was due to ‘oversight’. The fault appears to lie squarely at the feet of the plaintiff’s legal representative either through oversight in the initial pleading or in delaying seeking appropriate advice from counsel practising in the relevant area in a timely fashion. Against that is the concern of the Court not to unduly punish a plaintiff for the failures of his lawyers and that the failure to plead the additional allegations was not a forensic choice. Further, although the application is late in the procedural history of the matter, the trial is not yet listed (again) for hearing.
No actual prejudice
Prejudice to the defendants may arise in different ways. It may arise procedurally. An example is Balnaves v Armellin [2011] ACTSC 67 at [55]-[56], where significant prejudice would have arisen from the manner in which the case had been prepared and run to date. Another example is Aon, where the procedural considerations were such that the plaintiff was not permitted leave to amend.
Prejudice may also arise factually, if additional witnesses are no longer available or documentary evidence that could have been obtained had the claim been brought within the limitation period has been destroyed or is missing.
None of these considerations were raised by the second defendant here. The proposed amendments in substance raise only issues of law.
There was a suggestion that further particulars were required to be sought and instructions taken. These are not matters of prejudice; they are simply the cost of responding to the claim as amended if the Court grants leave. The same cost of investigating the new allegations under the Scaffolding Regulation would have been incurred had the amendments been included in the initial pleading.
The second defendant also asserted that prejudice to it arose in the defences that were available. In a claim for breach of statutory duty, the defence of contributory negligence was said to be unavailable: see s 102(2) of the Civil Law (Wrongs) Act 2002 (ACT). Both defendants have pleaded such a defence in the defences already filed.
In my view, this is not a relevant prejudice. It is no more than an argument that if leave is granted to amend, a defendant will have to defend the cause of action according to the law in force, which may indirectly impact upon the existing cause of action in negligence. It may be a legal consequence, but it is not properly characterised as prejudice.
Equally, I do not consider that hardship to the plaintiff is of much significance when considering the facts of the case.
Balancing the discretionary considerations
In weighing the above discretionary factors, what has proven to be determinative for this particular application is the fact that the case is not presently listed for hearing and the nature of the amendments sought are just a different legal characterisation of the same facts. Very little additional work will need to be done by the defendants to meet the new cause of action. The plaintiff has accepted that he must pay the costs thrown away by the amendments, and no actual prejudice will be suffered by the second defendant.
It is a fine balance, but I have determined that it is appropriate to exercise the Court’s discretion to grant leave to file the amended statement of claim most recently proposed.
This means that issue 4 (the possible application of r 502 of the Rules) falls away.
Costs
As the court is granting an indulgence, it is appropriate that the plaintiff pay the costs of the application, as well as the costs thrown away by the amendment. I will order accordingly.
Conclusion
The application is allowed. The Court orders are as follows:
(1) Leave is granted to the plaintiff to file an amended statement of claim substantially in the form proposed by the plaintiff on 18 March 2019.
(2) The plaintiff is to pay the defendants’ costs of the application filed 25 February 2019 and any costs thrown away by the amendments to the statement of claim.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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