Rawson v National Jet Systems Pty Ltd
[2005] ACTSC 101
•13 October 2005
RAWSON v NATIONAL JET SYSTEMS PTY LTD
[2005] ACTSC 101 (13 October 2005)
PRACTICE AND PROCEDURE – motion seeking leave to amend statement of claim pursuant to O 32 r 1 of the Supreme Court Rules (ACT) – circumstances when Court will refuse leave to amend a pleading – purpose of pleadings – requirement that a statement of claim give defendants notice of the case they have to meet
Civil Aviation Act 1988 (Cth)
Trade Practices Act 1974 (Cth), s 75AD
Supreme Court Rules (ACT), O 23 rr 2, 4, O 24 r 5, O 32 r 1
Ainsworth v Burden [2005] NSWCA 174
Banque Commericale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Bloeman v Atkinson [1977] Qd R 291
Bruce v Odhams Press Limited [1936] 1 KB 697
Carlisle v Filaria Pty Ltd [2002] ACTSC 33
Clough and Rogers v Frog (1974) 4 ALR 615
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Cropper v Smith (1884) 26 Ch D 700 at 710
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Heath v Goodwin (1986) 8 NSWLR 478
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Horton v Jones (No 2) (1939) 39 SR (NSW) 305
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Ketteman v Hansel Properties Ltd [1987] AC 189
London Passenger Transport Board v Upson [1949] AC 155
Philipps v Philipps (1878) 4 QBD 127
Rubenstein v Truth and Sportsman Ltd [1960] VR 473
Sali v SPC Ltd (1993) 116 ALR 625
State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146
Williams v Wilcox (1838) 8 Ad & El 314; 112 ER 857
Odgers WB, Principles of Pleading and Practice, 12 ed, 1939
No. SC 509 of 2001
Judge: Stone J
Supreme Court of the ACT
Date: 13 October 2005
IN THE SUPREME COURT OF THE )
) No. SC 509 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SUSAN RAWSON
Plaintiff
AND:NATIONAL JET SYSTEMS PTY LTD
First Defendant
BAE SYSTEMS PLC
Second Defendant
ORDER
Judge: Stone J
Date: 13 October 2005
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff has leave to file and serve an amended statement of claim no later than 4 November 2005.
Introduction
On 17 August 2005, I ordered that the plaintiff’s notice of motion filed on 1 September 2004 seeking leave to amend the statement of claim in the form of the proposed amended statement of claim (‘the PASC’) be dismissed and made further consequential orders. I said that I would publish my reasons at a later date. These are my reasons.
Background
On 1 August 2001, the plaintiff filed an originating application and statement of claim in this Court alleging that the first defendant (‘National Jet Systems’) and the second defendant (‘BAE Systems’) had breached their respective duties of care to her and, as a result of these alleged breaches, she had suffered loss and damage.
The plaintiff’s claims against the defendants arise out of her employment with National Jet Systems as a commercial fixed wing aircraft pilot between 18 September 1994 and 27 July 1997 (‘the relevant period’). During the relevant period, the plaintiff was based at Canberra in the Australian Capital Territory (‘the ACT’) and operated on a BAe 146 aircraft (‘the aircraft’), manufactured by BAE Systems, on routes between Canberra and various locations in Queensland.
Motions before the Court
At the hearing on 17 August 2005, the following motions were before the Court:
(a) The plaintiff’s motion filed on 1 September 2004 seeking leave to amend the statement of claim pursuant to O 32 r 1 of the Supreme Court Rules (ACT) (‘the Rules’).
(b) National Jet Systems’ motion filed on 16 July 2004 seeking orders that the plaintiff’s claim be partially struck out.
(c) BAE Systems’ motion filed on 11 August 2004 seeking orders that the plaintiff’s claims be partially struck out.
(d) The plaintiff’s motion filed on 13 May 2005 in relation to an extension of time to commence proceedings and declarations in respect of the applicable law in these proceedings.
(e) National Jet Systems’ motion filed on 30 May 2005 seeking joinder of their workers’ compensation insurers in the ACT, New South Wales and Queensland.
It was accepted by all parties that it was preferable to deal first with the plaintiff’s motion of 1 September 2004 seeking leave to amend the statement of claim.
The ‘original’ statement of claim
While the plaintiff has, at least for present purposes, effectively abandoned the original statement of claim filed in these proceedings on 1 August 2001, it will assist in understanding my comments about the PASC if I briefly summarise the claims originally made.
In the original statement of claim, the plaintiff alleges that the core engine of the aircraft, the T55 Turboshaft Engine, was designed for use in military helicopters, not for use in commercial airline transportation. Changes made to the engine design to adapt it to the aircraft placed unnecessary loadings on mechanical seals and bearings and contributed to their failure and fracture, which was evident at numerous times. She claims that air passing through the engine was ‘bled’ from the engine and the auxiliary power unit (‘APU’) to pressurise the cabin and provide a source of fresh air for the aircraft’s cabin and that this air was contaminated with jet engine oil containing, inter alia, tricresyl phosphate (‘TCP’) and thermal decomposition products.
The plaintiff alleges that the defendants, at all material times, ought to have known of the contamination of the air ‘bled’ from the engine and the APU and ought to have known that the design flaws in the engine, the APU and the oil seals were the cause of the oil leaks. She says that the defendants were aware of oil contamination of the aircraft’s airconditioning system since at least December 1984; that since at least October 1984, inadequate sealing in the APU allowed fumes to be sucked into the passenger cabin; and that since at least December 1986, that oil leakage inside the aircraft engine was causing contamination of the air ‘bled’ into the cabin.
The plaintiff claims that on or about 18 September 1994, she entered into a contract of employment with National Jet Systems as a First Officer, based in Canberra, flying the aircraft. She alleges that in or about November 1994, she noticed the onset of ‘sinus type’ headaches, fatigue, a sore throat and a husky voice during periods aboard the aircraft and immediately afterwards. The plaintiff also alleges that she experienced nausea, headaches and irritations because of foul odours in the aircraft.
The plaintiff claims that following a period of extended leave from late 1996 to early to mid 1997, she returned to her employment with National Jet Systems. However, she alleges that she began to experience voice, nose and throat irritations, headaches, fatigue and poor concentration on board the aircraft and immediately after disembarking as well as upon entering the airport environment.
The plaintiff alleges that on or about 24 July 1997, after operating the aircraft the day before, she experienced a sensation of extreme head pressure, fatigue, weakness, loss of voice, eye, nose and throat irritations, nausea, difficulties with concentration, short-term memory and pain.
In the original statement of claim, the plaintiff claims that National Jet Systems, as her employer, owed her; first, a non-delegable duty of care to take reasonable steps to eliminate or reduce the risk of injury to the plaintiff in her workplace environment; and secondly, a duty of care as occupier of the aircraft in circumstances where the plaintiff was invited onto the aircraft. In the context of the claims set out at [7]-[11] above, National Jet Systems is said to have breached its duties of care to the plaintiff causing her to suffer injury, loss and damage.
Further, the plaintiff claims that BAE Systems, as the manufacturer of the aircraft, owed her a duty of care to eliminate or reduce the risk of a foreseeable injury to her associated with the operation of the aircraft. In the context of the claims set out at [7]-[11] above, BAE Systems is also said to have breached its duty of care to the plaintiff causing her to suffer injury, loss and damage.
Motion seeking leave to amend the statement of claim
In her motion filed on 1 September 2004, the plaintiff seeks leave to amend the statement of claim pursuant to O 32 r 1 of the Rules. Order 32 r 1 concerns amendment by order or with leave and provides the Court with a broad discretionary power to give leave to a party to amend a document. Ordinarily, a party will be granted leave to amend a statement of claim or other pleading subject to appropriate terms, such as costs orders, as it is the role of the Court to decide the rights of the parties, not to punish a plaintiff for mistakes in the conduct of their action: see Cropper v Smith (1884) 26 Ch D 700 at 710; Clough and Rogers v Frog (1974) 4 ALR 615 at 618; State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 152-154; and Carlisle v Filaria Pty Ltd [2002] ACTSC 33 at [24].
In the present proceedings, there is no unreasonable prejudice to the defendants that could not be met by an award of costs (see, for example, Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 and Commonwealth of Australia v Verwayen (1990) 170 CLR 394 per Mason CJ at 416-417 and per Toohey J at 464-465), nor are there any issues of case management or of disruption to the Court (see Sali v SPC Ltd (1993) 116 ALR 625 per Toohey and Gaudron JJ at 636).
Nevertheless, in certain circumstances the Court will refuse leave to amend a pleading. Relevantly, leave may be refused where a proposed amendment is bad at law or when the amendment is so obviously futile that it would be struck out if it appeared in the original pleading: Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 309-310; Heath v Goodwin (1986) 8 NSWLR 478 at 482; and Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32. However, leave to amend will only be refused on this latter ground when the claim is manifestly groundless: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 and Ainsworth v Burden [2005] NSWCA 174 per Hunt AJA at [51].
The proposed amended statement of claim (‘PASC’)
As noted at [6] above, the plaintiff has effectively abandoned the original statement of claim in these proceedings. For present purposes, the PASC is a fresh statement of claim, which was effectively conceded by senior counsel for the plaintiff, Mr McIlwaine SC, who nevertheless submitted that the PASC is, at least to some extent, a truncated version of the original statement of claim in these proceedings. While this is partially true, in my view the PASC is, at the very least, a significant departure from the original.
Claims against National Jet Systems
In the PASC, the plaintiff repeats the claims made in the original statement of claim that during the relevant period she was employed by National Jet Systems, was based at Canberra and operated the aircraft on routes between Canberra and locations in Queensland. In addition, at paragraph 5 of the PASC the particular alphabetical identifiers of the aircraft she allegedly operated are set out (‘the relevant aircraft’). At paragraph 6 of the PASC, the plaintiff details the employment duties she claims to have been required to carry out during her employment with National Jet Systems.
At paragraph 7 of the PASC, the plaintiff claims that in performing these duties she was exposed to, and/or inhaled, ‘toxic and/or noxious fumes’. It is claimed, at paragraph 8, that these fumes were more intense when the air system was operating whilst on the ground; during preparation for departure; while taxiing to holding and departure point; and during take-off roll, take-off and climb out to approximately 1,500 feet above ground level. At paragraphs 9-12 the plaintiff details times and circumstances when the exposure to, and/or inhalation of, the toxic and/or noxious fumes were ‘of a lesser intensity and lesser frequency’ or ‘of much less intensity and far more infrequently’.
At paragraphs 13 and 17 of the PASC the plaintiff claims that, from at least 1991 and at all material times, National Jet Systems was aware that flight crews, including herself, operating the aircraft ‘were being exposed to and/or inhaling toxic and/or noxious fumes’ or at risk of exposure. Paragraph 18 states that the ‘toxic and/or noxious fumes’ resulted from ‘contamination of the aircraft’s air system by engine oil including Mobil Jet Oil II, and, on occasions, by hydraulic oil and/or deicing fluid (collectively “the oils”) and/or the thermal decomposition products of the oils’, subsequently referred to as ‘the contaminants’.
At paragraphs 15-16 of the PASC the plaintiff claims that National Jet Systems had a duty to provide her with a safe place and system of work, including airworthy aircraft to operate and that National Jet Systems breached this duty.
At paragraphs 19-20 of the PASC, the plaintiff alleges that the National Jet Systems was in breach of relevant aviation statutes in that the aircraft were not airworthy ‘by reason of the presence of toxic and/or noxious fumes in the cockpit’.
Paragraph 22 of the PASC sets out a series of relatively specific actions and omissions which are said to constitute breach by National Jet Systems of their duty to the plaintiff. At paragraph 24 the plaintiff claims that as a result of these breaches she was exposed to, and/or inhaled, toxic and/or noxious fumes and suffered injury, loss and damage which are particularised as ‘neuro-toxic injury’, ‘interstitial lung disease and small airways disease’ and ‘shock’.
Claims against BAE Systems and the proposed fourth and fifth defendants
At paragraph 26 of the PASC the plaintiff claims that BAE Systems and the proposed fourth defendant (BAE Systems Regional Aircraft Limited) manufactured and sold each of the relevant aircraft flown by the plaintiff during the relevant period: see [18] above. The proposed fifth defendant (BAE Systems (Operations) Limited) is alleged to be the designer of the aircraft. For convenience I shall refer to these three companies collectively as ‘the BAE Companies’ unless necessary to distinguish between them. I should note, however, that the proposed fourth or fifth defendants are not presently parties to this action, neither has been served with the PASC and neither was represented at the hearing on the plaintiff’s motion to amend the statement of claim.
In the PASC the plaintiff makes claims against the BAE Companies in negligence and under the Trade Practices Act 1974 (Cth) (‘the TPA’). At paragraph 29 of the PASC the plaintiff alleges that at all material times the BAE Companies knew or ought to have known:
(a) that there was a propensity for toxic and/or noxious fumes to enter the cockpit of the aircraft through contamination of the air systems by the contaminants: see [22] above;
(b) that there was a risk of injury to flight crews (including those employed by National Jet Systems) by risk of this exposure and/or inhalation during the intended operation of the aircraft as manufactured and supplied; and
(c) that there were systems and maintenance procedures available during the relevant period to detect the presence of toxic and/or noxious fumes, and to significantly reduce or prevent both contamination of the aircraft and exposure to, and/or inhalation of, toxic and/or noxious fumes by the flight crew.
In reliance on the pleadings in paragraph 29 of the PASC, the plaintiff alleges in paragraph 30 that the relevant aircraft were not airworthy, that they had a ‘major defect’ as defined in the relevant legislation and that they had a ‘defect’ within the meaning of s 75AD of the TPA.
At paragraphs 32-33 of the PASC the plaintiff claims that through a series of omissions the BAE Companies breached their duty of care owed to the plaintiff and consequently the plaintiff suffered injury, loss and damage. The particulars of injury are the same as those alleged in respect of National Jet Systems: see [23] above.
Submissions
Mr McIlwaine submitted that the original statement of claim alleged the same facts as those in the PASC, albeit that the original was, essentially, in a narrative form. He contended that the form of the PASC was designed to be easier to understand and follow but that the changes were generally formal rather than substantive. He conceded, however, that the amendments that were directed to joining additional defendants and making claims under the TPA were substantive.
Both Mr White, for National Jet Systems and Mr Williams SC, senior counsel for BAE Systems, submitted that the PASC failed to identify the key issues clearly and for this reason leave to amend, in the form of the PASC, should be refused. However, Mr Williams made it plain that his primary concern was with the proposed claims under the TPA which, independently of other complaints about the PASC, should not be permitted.
Consideration
The main purpose of pleadings is to focus and define the issues to be determined at trial: see Banque Commericale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 (‘Akhil Holdings’). A statement of claim needs to state clearly and precisely the material facts that together comprise the essential elements of the plaintiff’s cause of action. In doing so it gives defendants notice of the claims made against them and of the case they have to meet. In Bloeman v Atkinson [1977] Qd R 291 at 292 Hanger CJ quoted the following test of a pleading from Odgers WB, Principles of Pleading and Practice, 12 ed, 1939 at 105:
‘Perhaps the best test is this: After you have drafted your pleading banish your instructions from your mind for a moment, and imagine yourself a stranger coming fresh to the matter. Would your draft, read by itself convey to his mind a clear conception of your client’s case?’
More specifically, to test a statement of claim imagine you are the defendant and ask if it would tell you, in mounting your defence, precisely what admissions you can make without accepting liability and what allegations you have to rebut in mounting your defence. A well-drafted statement of claim allows defendants to make appropriate admissions and thus clarifies and confines the issues in dispute, reducing the cost of any trial to both the parties and the Court. It also assists the parties in any mediation of the proceedings. Indeed, one of the intentions of the introduction of the judicature system of procedure, and its progeny contained in O 23 of the Rules, was that a statement of claim would provide defendants with such notice: Philipps v Philipps (1878) 4 QBD 127 per Bramwell LJ at 131 and per Cotton LJ at 138. See also, Akhil Holdings per Mason CJ and Gaudron J at 286-287; Bruce v Odhams Press Limited [1936] 1 KB 697 (‘Odhams Press’) per Scott LJ at 712; Rubenstein v Truth and Sportsman Ltd [1960] VR 473 per Adam J at 479; and Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 per Lord Normand at 238.
Against this background, O 23 r 4(1) of the Rules provides that the statement of claim shall ‘contain, and contain only’ all the material facts on which the plaintiff relies to support her claim. Is this context, ‘material’ means ‘necessary for the purpose of formulating a complete cause of action’: Odhams Press per Scott LJ at 712. The central purpose which should drive the formulation of a statement of claim is that a defendant should not be taken by surprise and should be able to determine from the statement of claim what has to be done to meet the plaintiff’s claims. They should be as concise as is consistent with this objective and should not contain the evidence by which the material facts are to be proved; see O 23 rr 2, 4(1) of the Rules and Williams v Wilcox (1838) 8 Ad & El 314 at 331-332; 112 ER 857 at 863.
While a number of the objections made by defendants were, to my mind, properly issues that go to their defence rather than to the adequacy of the statement of claim nevertheless I am satisfied that the PASC does not meet the requirements described above. In my view it would not assist the efficient disposition of the dispute in this proceeding for the plaintiff to have leave to file the PASC. Inevitably there would follow a series requests for particulars and applications to strike out part or all of the pleading. However, I am also not disposed to deny the plaintiff a (perhaps) last opportunity to replead; I am hopeful that the problems I see in the PASC can be addressed. It is not appropriate for me to deal in detail with each and every deficiency in the PASC however, it may assist if I give some examples.
The claims in negligence
‘Toxic and/or noxious fumes’
The term, ‘toxic and/or noxious fumes’ is used throughout the PASC. It is unclear what is meant by this term. According to the Macquarie Dictionary, second revised edition, ‘toxic’ means ‘poisonous’ and ‘noxious’ means ‘harmful or injurious to health or physical well-being’. What distinction is the plaintiff trying to convey by using both adjectives? Does the plaintiff mean, ‘toxic’ and ‘noxious’; ‘toxic or noxious’ or the combination? While this uncertainty would not, by itself, have prompted me to strike out a statement of claim it is an example of the type of ambiguity that pervades the PASC.
Ambiguity as to causes of action outside the ACT
The defendants submitted that the PASC appears to allege only causes of action occurring in the ACT, specifically there are numerous references involving ‘Canberra airport’. However, it was further submitted that there was some ambiguity in the position given the nature of the plaintiff’s claims. This was of particular relevance in respect of potential claims against National Jet Systems for tortious conduct in New South Wales and Queensland, which has different workers’ compensation policies in each of these jurisdictions.
The plaintiff claims that she has suffered injury as a result of the defendants’, and the proposed defendants’, negligence. She further alleges that her exposure to toxic and/or noxious fumes occurred at all stages of the flights she operated, albeit at different intensities and frequencies depending on the stage of the flight. As the plaintiff has pleaded that she operated the aircraft on flights between Canberra and locations in Queensland, it is not clear whether the plaintiff intends to allege tortious acts or omissions in Queensland, where the aircraft landed and took off, and New South Wales, over which, inevitably, the aircraft was operated.
This ambiguity is particularly pertinent to National Jet Systems because of the workers’ compensation insurance issues that arise. Moreover it would seem that a claim that involves the operation of aircraft in multiple jurisdictions will give rise to questions as to the issue of the place of the tort: see John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [81].
Failure to elect between claim under the employment contract and tort
Mr Garling SC, senior counsel for Allianz Australia Insurance Ltd, which is National Jet Systems’ ACT workers’ compensation insurer, submitted that a further difficulty with the PASC was that it was not clear whether the plaintiff was suing in contract or making a claim in negligence. To my mind, however, it is tolerably clear in the PASC that the plaintiff’s claim is in negligence not contract. If this is not the case then the pleading is clearly deficient in this respect.
Ambiguity in respect of statutory duties and the legislative provisions
In the PASC the plaintiff claims that National Jet Systems breached the provisions of the Civil Aviation Act 1988 (Cth), the related Regulations and Orders. It is not entirely clear if she is thereby alleging that there has been a breach of a statutory duty or merely articulating an element of her claim in negligence. Either way the pleading is unacceptably ambiguous. If it is intended to plead a breach of statutory duty as a separate cause of action the statement of claim must identify the precise nature of the statutory duty and distinguish between this cause of action and her claim in negligence as required under O 24 r 5(1) of the Rules; see also London Passenger Transport Board v Upson [1949] AC 155 per Lord Wright at 169.
Pleading of injury
Paragraph 24 of the PASC details the particulars of injury as, inter alia, ‘neuro-toxic injury’ and ‘shock’. These terms are ambiguous and amount to little more than a statement that she is injured. Mr McIlwaine stated that ‘shock’ refers to emotional or psychological reactions consequent on the neuro-toxic injury and the lung and airways disease. This explanation, itself, indicates that the term requires clarification.
The claims against the BAE Companies under the TPA
Mr Williams submitted not only that the PASC was inadequate in its formulation of a claim under s 75AD of the TPA but also that the Court should not give leave to amend the statement of claim to include a claim under s 75AD of the TPA. Mr Williams submitted that the amendment would be futile as the claim could not succeed because of the limited extraterritorial operation of s 75AD and the consequent lack of jurisdiction. I do not propose to deal with these submissions in detail. It may be that Mr Williams is correct but, as the pleading presently stands, I am not confident that it would be futile for an amended pleading to raise this claim. The matters raised by Mr Williams can be submitted in defence to a properly formulated statement of claim. I therefore do not propose to exclude a claim under s 75AD at this stage. I do recommend, however, that the plaintiff’s representatives consider carefully the issues raised by Mr Williams when re-drafting the statement of claim.
Conclusion
For the above reasons, I refused to give the plaintiff leave to amend the statement of claim in the form of the PASC and made the following orders:
1. The Plaintiff’s notice of motion of 1 September 2004 be dismissed.
2. The Plaintiff pay the costs of the First and Second Defendants in relation to that notice of motion.
3. Leave be given to the Plaintiff to re-plead.
4. The First Defendant’s notice of motion filed 16 July 2004 and the Second Defendant’s notice of motion filed 11 August 2004 be stood over.
5. The First Defendant’s notice of motion filed 30 May 2005 be stood over.
6. The costs of Allianz Australia Insurance Ltd be reserved.
7. The costs of the First and Second Defendants thrown away by reason of the liberty to re-plead be reserved.
Although I gave the plaintiff leave to re-plead, I did not set a date by which this should be done. In the circumstances, it is appropriate to order that the plaintiff has leave to file and serve an amended statement of claim no later than 4 November 2005.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Stone.
Associate:
Date: 13 October 2005
Counsel for the Plaintiff: Mr RS McIlwaine SC and Mr J Gordon
Solicitor for the Plaintiff: Stacks with Snedden Hall & Gallop
Solicitor for the First Defendant: Abbott Tout
Counsel for the Second Defendant: Mr R Williams SC
Solicitor for the Second Defendant: Williams Love & Nicol
Counsel for Allianz Australia Insurance Ltd: Mr P Garling SC
Date of Hearing: 17 August 2005
Date of Publication of Reasons: 13 October 2005
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