Nield v Contract Power Management Australia Pty Ltd - [2007] WADC 161

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NIELD -v- CONTRACT POWER MANAGEMENT AUSTRALIA PTY LTD [2007] WADC 161

CORAM: MARTINO DCJ

HEARD: 22 AUGUST 2007 & 6 SEPTEMBER 2007

DELIVERED : 19 SEPTEMBER 2007

FILE NO/S: CIV 794 of 2003

BETWEEN: MATTHEW JOHN NIELD
Plaintiff
AND
CONTRACT POWER MANAGEMENT AUSTRALIA PTY LTD
Defendant
TRITON BROKING SERVICES (WA) PTY LTD
Third Party

Catchwords:

Procedure - Application to amend defence

Legislation:

Nil

Result:

Leave granted

Representation:

Counsel:

Plaintiff:     Mr A J Castley
Defendant:     Mr P E Jarman
Third Party  :     Not applicable

Solicitors:

Plaintiff:     Bradford & Co
Defendant:     Jarman McKenna
Third Party  :     Not applicable

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

Cropper v Smith (1884) 26 Ch D 700
Osgood v Wham [2007] WASCA 178
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

MARTINO DCJ: On 10 April 2003 the plaintiff, Mr Nield, commenced this action. His statement of claim was filed on 10 June 2003.
By his statement of claim Mr Nield claims that in January 2000, in the course of his employment by the defendant, Contract Power Management, he was sent to Borneo to work on a gold mine. He claims that in the course of that employment he consumed chicken and that as a result he suffered salmonella gastroenteritis and disabilities caused by that illness. He claims that the chicken he consumed was supplied, prepared and stored by Contract Power Management, its servants or agents, that it had been cooked several hours before he consumed it and left in humid conditions, unrefrigerated and covered only by a cloth and that his illness and disabilities were caused by the breach of the duty of care owed to him by Contract Power Management and by breach of contract.
Contract Power Management filed a defence on 14 July 2003. It admits that it was his employer in 2000 and that in January 2000 Mr Nield travelled with a number of its employees and others associated with it to a mine near Mirah in Kalimantan, Indonesia to install and commission a power generation plant. It also admits that it was under a duty of care and owed a contractual duty to Mr Nield to take reasonable care to ensure that food supplied to him in the course of his employment was prepared, kept and stored according to reasonably hygienic standards. It denies that it supplied, prepared or stored the chicken, that it breached its duty of care to Mr Nield, was in breach of contract and that he suffered any illness or disabilities. It also alleges that any illness or disabilities suffered by Mr Nield were not caused by the consumption of chicken in Borneo but by an illness he suffered after he returned to Western Australia in February 2000.
On 13 May 2005, with leave, Contract Power Management amended its defence to add an allegation that any illness or disabilities suffered by Mr Nield were caused by pre‑existing Crohn's disease, inflammatory bowel disease or a gastro‑entomological condition.
On 16 October 2006 Contract Power Management filed notice of change of solicitors.
By a chamber summons filed on 15 January 2007 Contract Power Management applied for leave to amend the defence further and to issue third party notices. That application was dismissed by Registrar Kingsley on 22 February 2007. Contract Power Management appeals against the refusal to grant leave to amend the defence.
The amendments that Contract Power Management seeks to make have changed several times since the application was dismissed by Registrar Kingsley. As a result of the changes the issues that Contract Power Management seeks to raise have been reduced from the issues that it first sought to raise in the application.
The last change was made by Contract Power Management at the second hearing before me. At that hearing counsel for Contract Power Management deleted par 7 of the minute. As a consequence the following paragraph numbers need to be changed. In these reasons I refer to the paragraph numbers as they were in the minute.
By the minute Contract Power Management seeks to plead that the preparation and supply of food to Mr Nield was carried out by PT Kasongan Bumi Kencana ("KBK"), the owner and operator of the mine at which Mr Nield was working (par 6 of the minute).
It also seeks to plead that it took reasonable care to ensure that the chicken supplied to Mr Nield was safe to eat by its managing director and an employee ensuring that the chicken was fresh, ensuring that there was sufficient refrigeration, ensuring that the chicken was not left to stand in humid conditions for unreasonable length of time, advising KBK staff when the chicken was to be served, satisfying themselves that the chicken was safe to eat, eating the chicken daily without incident and monitoring the health of their employees on site (par 8). By par 9 it seeks to plead that salmonella and diarrhoea are normal consequences of travelling to Kalimantan and are not reasonably preventable.
Contract Power Management also seeks to add pre-existing Reiter's disease and depression (par 13) and an illness contracted when Mr Nield was holidaying in Bali before going to Kalimantan (par 14) to the matters that it contends caused Mr Nield's illness and disabilities.
Mr Nield opposes the application. His counsel points to the fact that the limitation period to commence an action against KBK had expired before Contract Power Management applied to make the amendment and that no contractual document to disclose that the preparation and supply of food at the mine was carried out by KBK was discovered within that limitation period. He contends that Mr Nield has therefore suffered prejudice. He also contends that par 9 is inconsistent with par 8.
Contract Power Management has adduced evidence by affidavit that the reason for the late proposed pleading that KBK prepared the food is that its new solicitors became aware of matters from conversations with an officer of the company and that the new proposed issues concerning Mr Nield's pre‑existing conditions arose out of a review of medical documents discovered by him.
Late applications to amend pleadings are to be discouraged. In considering such applications prejudice to the other party, including the prejudice of delay, and disruption to the court’s list are matters to be considered in the exercise of the discretion. However also relevant to the exercise of the discretion is that it is both the function and obligation of a court to deal with a claim before it on the merits of that claim, except in exceptional cases: Cropper v Smith (1884) 26 Ch D 700; State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Osgood v Wham [2007] WASCA 178.
By its pleadings Contract Power Management has always denied liability to Mr Nield. It has therefore always been necessary for Mr Nield to prove that the illnesses he alleges he suffered were caused by Contract Power Management's breach of duty of care or contract. By par 6, par 8 and par 9 of the minute Contract Power Management seeks to raise issues of fact which it contends show that it has not breached its duty of care or its contract. It is not in issue that Contract Power Management was under a duty of care and owed a contractual duty to Mr Nield to take reasonable care to ensure that food supplied to him in the course of his employment was prepared, kept and stored according to reasonably hygienic standards.
It is unfortunate that this application to amend has been made so late and that Mr Nield has been denied the opportunity to consider joining KBK as a defendant. However I am not satisfied that by the proposed amendments the issues between Mr Nield and Contract Power Management have changed so significantly that the justice of the case requires the claim not to be determined on the merits.
It is my view that the proposed par 9 is not inconsistent with the proposed par 8. In context the proposed par 9 is not a pleading that the illnesses are inevitably suffered every time that food is consumed, but that the risk of the illnesses is high and cannot be entirely eliminated.
Mr Nield's pre‑existing health was an issue before the application to amend and the proposed addition of matters in my view does not so alter the issues in dispute as to warrant preventing Contract Power Management from raising them.
For these reasons I give leave for Contract Power Management to make the amendments it applied for at the hearing before me on 6 September 2007. Appropriate changes will need to be made to paragraph numbers.