Oakley by his tutor Annabel Robertson v State of New South Wales

[2018] NSWSC 686

Supreme Court

New South Wales

Medium Neutral Citation:	Oakley by his tutor Annabel Robertson v State of New South Wales [2018] NSWSC 686
Hearing dates:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Grant leave to the defendant to file an amended defence in the form of the draft annexed to its notice of motion filed on 17 April 2018.  (2) Order the plaintiff to pay the defendant's costs of the defendant's notice of motion filed on 17 April 2018.
Catchwords:	PRACTICE AND PROCEDURE – application for defendant to amend defence to add defence under s 5M of the Civil Liability Act 2002 (NSW) – factual issues already the subject of evidence – no prejudice to the plaintiff demonstrated – amendment necessary to permit reliance on s 5M at the trial   COSTS – no reason to depart from general rule that costs ought follow the event
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5F, 5I, 5J, 5L, 5K, 5M Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Category:	Procedural and other rulings
Parties:	Travis Oakley by his tutor Annabel Robertson (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Dr CE McConaghy (Plaintiff) S Glascott (Defendant)   Solicitors: Shine Lawyers (Plaintiff) Makinson d’Apice Lawyers (Defendant)
File Number(s):	2015/122042

Judgment – EX TEMPORE

Introduction

1. Travis Oakley by his tutor Annabel Robertson (the plaintiff) claims damages for the alleged negligence of the State of New South Wales (the defendant) arising from an accident which occurred when he was in Year 9. The plaintiff alleges that he injured himself when he performed the high jump in a physical education class at school. He alleged that he struck his head on the floor of the gymnasium and was injured. He alleged that he was not instructed as to the manner in which the jump ought be performed and that therefore the school was negligent and the defendant is liable for that negligence.

2. By notice of motion filed on 17 April 2018, the defendant seeks leave to file and serve an amended defence which is annexed to the notice of motion. The amendment sought is in paragraph 14, in which the defendant pleads by way of complete defence to the plaintiff's claim matters arising from s 5M of the Civil Liability Act 2002 (NSW) (the Act).

The parties’ submissions

3. I note that Dr McConaghy, who appears on behalf of the plaintiff, does not oppose the amendment sought in paragraph 14(b) which relates to ss 5J and 5K of the Act. However, the plaintiff objects to the amendment insofar as the defendant seeks to add the allegation that the plaintiff was not an incapable person within the meaning of s 5M(12) of the Act and that the defendant provided a risk warning within the meaning of s 5M of the Act, particulars of which are provided in the draft amended defence. Dr McConaghy submitted that it would cause prejudice to the plaintiff to have to respond to the evidence adduced by the defendant, and in particular that of Ms Wilson, since the passage of time would make it difficult to locate students from her class who could depose as to the warning she is said to have given.

4. Mr Glascott, who appears on behalf of the defendant, submits that there is no relevant prejudice to the plaintiff if the amendment is allowed as no further evidence will be required to be adduced by either party as a result of the amendment. Mr Glascott has informed me, without contradiction, that the plaintiff has served witness statements which address this issue in his statements of 25 January 2016 and 5 June 2017 in which he states that he was not given a warning or instruction as to how to perform a high jump. The plaintiff has also served statements of his stepsister Maddison Baird, his sister Kalsey Oakley, and also a friend, Daniel Tout, as to the alleged absence of instruction.

5. The defendant's response to this evidence has been to serve a statement of Wayne Barry, who was the sports teacher in charge of the Year 9 class, and was present when the accident the subject of the proceedings occurred. The defendant also relies on a statement of Laurene Wilson of 20 March 2018 in which she deposed that, when she was teaching the Year 7 class of which the plaintiff was a member, she gave a specific instruction to the members of the class as to how to perform a high jump safely.

6. The defendant, in its defence to the amended statement of claim filed on 6 June 2017 in response to the amended statement of claim filed on 28 April 2017, has referred to ss 5I, 5L and 5F of the Act which deal with inherent and obvious risks and duty to warn. All these matters are germane to the defendant's alleged liability, as it is alleged that the plaintiff, after performing a high jump, landed on a thin side mat and his head landed on the hard floor of the gymnasium.

Consideration

7. Having considered the statements, the existing pleadings and the proposed amendment, I am not persuaded that there is any relevant prejudice to the plaintiff by the proposed amendment. The issue of whether any such instruction was given has already been plainly raised on the pleadings and in the witness statements served by the plaintiff and the defendant. Whether or not the amendment was allowed, the plaintiff would need to respond, if possible, to the evidence of Ms Wilson as to what instruction was given to the Year 7 class to which the plaintiff belonged.

8. I accept Mr Glascott's submission that the defence is legal in nature in that it gives rise to a question of law, including as to whether any such tuition or instruction falls within the definition of risk warning in s 5M of the Act. The proposed amendment is necessary to permit the defendant to rely on s 5M at the trial. To refuse the amendment would deprive the defendant of an arguable defence and create a degree of artificiality in that the issue whether the plaintiff was instructed as to how to perform a high jump will need to be determined in any event on the pleadings as they presently stand.

9. Further, I take into account that the amendment is sought to be made in the order of three months before the hearing is due to commence. Accordingly, any legal argument or response can be prepared by the plaintiff with ample time before the final hearing.

10. Having taken into account the nature of the proposed amendment, the stage of the proceedings at which leave is sought and the absence of prejudice to the plaintiff, I consider that it is in the interests of justice to grant leave to the defendant to file an amended defence in accordance with the draft annexed to the notice of motion.

Costs

11. The defendant seeks the costs of this motion. Dr McConaghy resists the order for costs on the basis that the plaintiff is disadvantaged and of relatively limited means.

12. Whilst I note and accept the details of the plaintiff's circumstances which are set out in the affidavits before me, they do not appear to be germane to the question whether costs ought follow the event. The general rule as provided for in Uniform Civil Procedure Rules 2005 (NSW) r 42.1 is that costs follow the event. I see no reason to depart from the general rule in the present case. Whether or not the costs are recoverable is a matter for another day. Furthermore, I do not expect that the defendant will enforce the cost orders pending the determination of the proceedings. Accordingly, it does not appear to me that the making of the costs order in the terms I propose would cause undue hardship or prejudice to the plaintiff.

Orders

13. For the reasons given above, I make the following orders:

1. Grant leave to the defendant to file an amended defence in the form of the draft annexed to its notice of motion filed on 17 April 2018.

2. Order the plaintiff to pay the defendant's costs of the defendant's notice of motion filed on 17 April 2018.

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Decision last updated: 16 May 2018