Ridge v City of Salisbury Council
[2021] SADC 61
•28 May 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RIDGE v CITY OF SALISBURY COUNCIL & ANOR
[2021] SADC 61
Reasons of her Honour Judge Schammer
28 May 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ADMISSIONS - WITHDRAWAL
The applicant, Corey Ridge, claims damages for personal injuries allegedly sustained by him when he was involved in an incident at the Salisbury North Skate Park (skate park) on 5 April 2009, during a community event, “I Eat Concrete for Breakfast” (the event).
There is no dispute that on that day, the applicant, then aged 10, was riding his scooter on the skate park track (track), when a collision occurred between him and a BMX bicycle, ridden by Justin Dermody (the collision).
Both the second and fourth respondents deny liability for the collision. Both respondents plead, inter alia, the defence of voluntary assumption of risk, that any harm suffered by the applicant was as a result of the materialisation of an inherent risk, and, that if they were negligent, the applicant was contributorily negligent.
The event included closed sessions (competitions for riders in different age groups on different apparatus, warm up sessions and skate and BMX demonstrations).
The closed sessions were interspersed with periods of free time, when event participants of all ages and on all apparatus (and other persons present at the skate park who were not otherwise registered as event participants) were invited to enter the track at the same time and without regulation (open sessions).
The applicant’s case is that the collision occurred during an open session.
In its Defence filed on 20 August 2020, the second respondent made admissions to the effect that the collision occurred during an open session (the admissions).
In its Defence, the fourth respondent pleaded that ‘the collision occurred whilst the plaintiff was riding a scooter in the skate park in a ‘free skate’ period, or alternatively, whilst the plaintiff was riding in the skate park during the ‘BMX’ competition warm up’.
As such, whether the collision occurred in an open session, or not, was a live issue for determination by the court at trial.
Prior to trial, the second respondent made two unsuccessful applications to amend its Defence to withdraw the admissions.
The second respondent subpoenaed Mr Dermody to give evidence at the trial. Mr Dermody gave evidence-in-chief that the collision occurred when he was participating in a BMX demonstration, in other words, during a closed session.
After hearing the evidence, the trial was adjourned for several months for the parties to prepare written closing submissions, to be supplemented by oral submissions.
In its written submissions, the second respondent applied for leave to amend its Defence, to withdraw the admission at paragraph 8 of its Defence and to plead, in the alternative, that the collision occurred in a:
(a) free skate period; or alternatively;
(b) BMX demonstration; or alternatively;
(b) BMX competitors’ warm up.
Whether it is in the interests of justice for leave to be granted for the admissions to be withdrawn.
Orders:
1. Leave is granted to the second respondent to file and serve an amended defence, within 7 days, in the form of the Second Respondent’s Defence Revision 2, annexed to the Written Submissions of the Second Respondent dated 5 February 2021.
2. I will hear the parties as to any ancillary orders.
3. The question of costs of and incidental to the application is reserved for determination by me, after the delivery of judgment.
Juno Pharmaceuticals P/L v Millennium Pharmaceuticals Inc [2009] FCA 526; Rowan v Cornwall & Ors (No 4) [2001] SASC 348; Ketteman v Hansel Properties [1987] 1 All ER 38; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Celestino v Celestino [1990] FCA 299; Cropper v Smith (1884) 26 Ch D 700, considered.
RIDGE v CITY OF SALISBURY COUNCIL & ANOR
[2021] SADC 61
Civil
Introduction
The applicant, Corey Ridge, claims damages for personal injuries allegedly sustained by him when he was involved in an incident at the Salisbury North Skate Park (skate park) on 5 April 2009, during a community event, “I Eat Concrete for Breakfast” (the event).
There is no dispute that on that day, the applicant, then aged 10, was riding his scooter on the skate park track (track), when a collision occurred between him and a BMX bicycle, ridden by Justin Dermody (the collision).
The applicant’s claim is against the City of Salisbury Council (second respondent) and JR Ottoway and AN Shepherd trading as Da Klinic Magazine (fourth respondent). The second respondent organised the event. The fourth respondent was retained by the second respondent to provide staff at the event to take competition registrations, to judge and MC the competitions and to provide skate and BMX demonstrations. Mr Dermody is not a party to the action.
Both the second and fourth respondents deny liability for the collision. Both respondents plead, inter alia, the defence of voluntary assumption of risk, that any harm suffered by the applicant was as a result of the materialisation of an inherent risk, and, that if they were negligent, the applicant was contributorily negligent.
The event included competitions for riders in different age groups (14 and under, 15 to 18 and open) on different apparatus (scooters, skateboards and BMX bicycles) to demonstrate their skills as individuals. These competitions involved riders being called onto the track, one at a time, to demonstrate their skills as individuals in closed sessions.
Each competition was interspersed with periods of free time, when event participants of all ages and on all apparatus (and other persons present at the skate park who were not otherwise registered as event participants) were invited to enter the track at the same time and without regulation (open sessions). There were also warm up sessions and skate and BMX demonstrations held throughout the event (closed sessions).
The applicant’s case is that the collision occurred during an open session.
In its Defence filed on 20 August 2020, the second respondent made admissions to the effect that the collision occurred during an open session (the admissions).[1]
[1] Second Respondent’s Defence Revision 1 at [6.3], [8] and [9].
Prior to trial, the second respondent made two unsuccessful applications to amend its Defence to withdraw the admissions. The first application to amend was argued before Judge Soulio on 17 September 2020 and was supported by an application of Grant Mitchell, sworn on 3 September 2020 (Mitchell affidavit).[2] The second application to amend was argued before me at the commencement of the trial on 6 October 2020 and was supported by an affidavit sworn by Eveline Rygorowicz on 6 October 2020 (Rygorowicz affidavit).
[2] Noting this application also included an application by the Fourth Respondent to amend its Defence, which was also unsuccessful.
In its Defence, the fourth respondent pleaded:[3]
…the collision occurred whilst the plaintiff was riding a scooter in the skate park in a ‘free skate’ period, or alternatively, whilst the plaintiff was riding in the skate park during the ‘BMX’ competition warm up.
[3] Fourth Defendant’s Defence at [4.6].
As such, whether the collision occurred in an open session, or not, was a live issue for determination by the court at trial.
In determining whether the second and/or fourth respondent has any liability to the applicant, whether the applicant’s negligence caused or contributed to the collision, and/or the availability of the other defences as pleaded, it is necessary for the court to make findings of fact, which include, but are not limited to:
·what was occurring on the track immediately prior to the collision;
·Mr Dermody’s path of travel and speed immediately prior to the collision;
·what, if any, opportunity the applicant had to observe Mr Dermody, prior to the collision; and
·where, on the track, the collision occurred.
The second respondent subpoenaed Mr Dermody to give evidence at the trial. Over objection by the applicant, I allowed Mr Dermody to give evidence as to his recollection of the circumstances of the collision, and as to what he recalls was happening on the track at, and immediately prior to, the collision. That evidence was relevant and admissible, having regard to the issues in dispute on the pleadings, notwithstanding the admissions made at paragraphs 6.3, 8 and 9 of the second respondent’s Defence.
During examination-in-chief, Mr Dermody gave evidence that the collision occurred when he was participating in a BMX demonstration, in other words, during a closed session.[4]
[4] I do not intend to thoroughly analyse the evidence given by Mr Dermody, or the other witnesses, in these Reasons, or make findings having regard to that evidence in these Reasons. Mr Dermody agreed in cross-examination by the applicant that it was possible the collision occurred during a ‘free session’. However, this evidence was at odds with the balance of his evidence, namely that he was one of three BMX riders, who was asked to participate in a BMX demonstration, and that the collision occurred shortly after he commenced his demonstration, immediately after the two other riders had completed their demonstrations.
After hearing the evidence, the trial was adjourned for several months for the parties to prepare written closing submissions, to be supplemented by oral submissions, heard on 18 February 2021.
At paragraph 9.67 of its written closing submissions, the second respondent applied for leave to amend its Defence, to withdraw the admission at paragraph 8 of its Defence and to plead, in the alternative, that the collision occurred in a:
(a)free skate period; or alternatively;
(b)BMX demonstration; or alternatively;
(b)BMX competitors’ warm up.
Annexed to the written submissions is a proposed ‘Second Respondent’s Defence Revision 2’ containing proposed amendments to paragraphs 6.3, 8 and 9 of the Defence.
For the reasons which follow, I allow the second respondent’s application.
Background
Pleadings
The applicant issued proceedings on 9 July 2018, naming three respondents. The actions against the first and third respondents have been discontinued. The fourth respondent was joined to the action on 6 March 2019, at which time the applicant filed a Second Statement of Claim (Second SOC).
At paragraph 6 of the Second SOC, the applicant pleaded:[5]
On the afternoon of 5 April 2009, the plaintiff was attending the event at the premises as a patron, participating in an open session during the event, whereby the skate park was open for all persons to skate and ride.
[5] Reflecting what was pleaded in the First Statement of Claim (SOC) at [5].
At paragraph 8 of the Second SOC, the applicant pleaded:
A representative of the fourth defendant announced the commencement of the open session.
At paragraph 9 of the Second SOC, the applicant pleaded:[6]
There were no directions or restrictions on which participants or vehicles could use the skate park at the time (i.e. BMX bicycle, skateboard, kick scooter etc.).
[6] Reflecting what was pleaded in the SOC at [7].
As to the circumstances of the incident, the applicant pleaded:[7]
10.Patrons were left to their own devices and formed lines at various section (sic) of the skate park (i.e. the ‘bank’, quarter pipe, A-frame, etc.) and took turns to enter into that section of the skate park and complete their run.
11.The Plaintiff waited in line at the quarter pipe section located at the western side of the skate park. He was riding an aluminium Razor kick scooter and wearing a protective helmet at the time.
12.When his turn came, the Plaintiff checked his surroundings before entering into the skate park. At that time, the Plaintiff had a clear path of approximately 5-10 metres to the quarter pipe directly ahead of him.
13.At the same time, another patron riding a BMX bicycle at significant speed in the skate park cut across from another section located at the south eastern side in order to use the quarter pipe.
14.The other patron was not within the Plaintiff’s field of vision at the time the Plaintiff entered into the skate park.
15.As a result, a collision occurred whereby the Plaintiff was struck in the face by the handlebars and stem of the other patron’s BMX bicycle (the incident).
[7] These allegations were also included in the SOC.
On 20 August 2020, the second respondent filed a revised defence.[8] At that time, the respondents were taking active steps to obtain a statement from Mr Dermody, however had not yet done so.[9]
[8] Second Defendant’s Defence Revision 1.
[9] Mitchell affidavit at [4], noting that at this time the second and fourth respondents had joint representation.
In the revised defence, the second respondent pleaded in response to paragraph 6.3 of the Second SOC:
a representative of the fourth respondent announced that the skate park track was available for a free skate period prior to the alleged incident.[10]
[10] In its Defence dated 16 August 2018 (First Defence), the second respondent had pleaded ‘a representative of Da Klinic announced that the skate park track was open for use by members of the public prior to the alleged incident’.
It admitted the allegations in paragraph 8 of the Second SOC.
As to paragraph 9 of the Second SOC, the second respondent admitted only that the skate park was open for use by members of the public riding BMX bicycles, skateboards and scooters.[11]
[11] Consistent with what was pleaded in its First Defence at [7].
By these pleadings, the second respondent admitted the collision occurred during an open session.
First Application to Amend
The first application to amend was made on behalf of both respondents and was supported by the Mitchell affidavit.
In that affidavit, Mr Mitchell deposed that shortly after the second respondent had filed its amended defence, an investigator had successfully made contact with Mr Dermody and a statement was obtained from him as to the circumstances of the collision.
Mr Mitchell deposed that the allegations as pleaded by the second respondent at paragraphs 6.3 and 8 of its defence were based on information provided by the second respondent’s employees who did not witness the collision. The information provided by Mr Dermody to the investigator was at odds with what was pleaded in that defence.
The second respondent sought leave to withdraw the admissions at paragraphs 6.3, 8 and 9 and to include new allegations at paragraphs 6.4 and 10.3.
The proposed pleading at paragraph 6.4 stated:
…prior to the incident it was announced on the microphone that a BMX demonstration would occur and all persons were requested to stand clear of the skate park.
The proposed pleading at paragraph 10.3 stated:
10.In relation to the allegations in paragraphs 9 - 15 of the Second Statement of Claim, the second respondent:
…
10.3. … says that the accident occurred in the following circumstances:
10.3.1the applicant entered the skate park during a BMX demonstration in circumstances where he was not permitted to do so;
10.3.2an announcement was made requesting that the skate park be cleared for a BMX demonstration;
10.3.3.the announcer requested that everyone stand one metre away from the edge of the skate park;
10.3.4Justin Dermody was the third and last BMX rider performing a BMX demonstration;
10.3.5Mr Dermody commenced his demonstration by riding from the south western corner in a northerly direction;
10.3.6shortly after Mr Dermody entered the skate park, he collided with the applicant who had entered the skate park contrary to the instructions referred to in paragraphs 10.3.2 and 10.3.3 herein.
The fourth respondent also sought leave to amend its defence, by pleading at paragraph 4.6:
…it says the collision occurred whilst the applicant was riding a scooter in the skate park in a ‘free skate’ period, or alternatively, whilst the applicant was riding in the skate park during the ‘BMX’ competition warm up or alternatively whilst the applicant entered the skate park during a BMX demonstration.
In refusing the first application, Judge Soulio had regard to a document contained in the Joint Tender Book entitled ‘Incident Reports for 5 April 2009, Salisbury North Skate Park Event’ (the incident report).
In the incident report, it is recorded that the collision occurred at midday in free-time, in between competition times. The incident report included information relating to Mr Dermody, including his address and telephone number.
After considering the relevant authorities, Judge Soulio observed that the new information obtained from Mr Dermody had been obtained over 11 years after the incident and that the nature of the interview and the details of what material or suggestions were put to Mr Dermody at that time, were simply unknown. The Judge balanced this against the information contained in the contemporaneous incident report.
Having done so, the Judge stated that ‘the strength of the case now advanced as to the incorrectness of the respondents’ current pleading is not particularly strong’. He was not persuaded that the second respondent had done what it could to resolve the conflict between the accounts apparently given by Mr Dermody on the one hand, and that contained in the incident report on the other.
The Judge further noted that although that there would be prejudice to the respondents if the admission was not withdrawn, there was not ‘necessarily a stark difference between the two versions of events’, such that liability may still rest on either scenario.
Second Application to Amend
The second application to amend was advanced only by the second respondent.
The second application was supported by the Rygorowicz affidavit, annexed to which was a copy of a signed statement of Mr Dermody dated 15 September 2020, a signed statement from another potential witness, Daniel Vandenberk dated 22 September 2020 and statements from the second respondent’s employees, Kate Walker dated 6 August 2012 and Ricky Henke dated 2 August 2012.
The statement obtained from Mr Vandenberk was obtained after the determination of the first application to amend. In his statement, Mr Vandenberk outlined his recollection of having witnessed the collision and stated that Mr Dermody was the only person using the skate park immediately prior to the applicant entering the park and the collision occurring.
Ms Rygorowicz deposed that she had spoken to Ms Kate Kitching (nee Walker) to obtain further information from her as to the basis upon which the incident report, prepared by her, had contained the statement that the collision occurred ‘in free time in between competition times’. Ms Rygorowicz deposed that she was informed by Ms Kitching that she did not see the collision and could not recall why she wrote the incident occurred ‘in free time’, but said it could have been based on an assumption she made because the collision occurred between a young child on a scooter and an older male on a BMX bike.
Ms Rygorowicz also deposed to unsuccessful attempts that she understood had been made to locate Mr Dermody prior to the action being issued.
The second application to amend was strenuously opposed by the applicant, who provided an affidavit sworn by Andrew Nicholson on 6 October 2020 containing a timeline of events relevant to the making of the applicant’s claim and two emails prepared by representatives of the second respondent immediately after the incident. The applicant submitted that to allow the amendment would necessitate the applicant seeking an adjournment of the trial in order to speak to Mr Dermody and other witnesses and potentially contact independent witnesses such as members of SAPOL.
In refusing the application, I observed that there remained an absence of information as to what attempts had been made by the second respondent to speak with Mr Dermody, either prior to the incident report being completed or thereafter. I observed that the information obtained from Ms Kitching and Mr Henke did not adequately address how the incident report was created and on what information, noting the admissions had been made on the information contained in the incident report. I was not satisfied at that time that it was in the interests of justice for the application to be granted and I declined the application.
Change of Representation – Fourth Respondent
Upon the applicant opening his case, an application was made by the fourth respondent to adjourn the trial to enable it to obtain separate representation, due to a conflict of interest becoming apparent between the second and fourth respondents.
The application was allowed, with the trial adjourned to a date in early November and on the basis that the respondents paid the costs thrown away by reason of the adjournment and all costs of, and incidental to, the adjournment as incurred by the applicant on an indemnity basis.
The trial resumed on Monday 9 November 2020.
Evidence at Trial
It is necessary to canvas the evidence briefly to understand the basis for the second respondent’s application.[12]
[12] As previously stated, this is not a full analysis of the evidence on this issue.
The applicant gave evidence and called evidence from three other witnesses as to the circumstances of the collision.
The applicant gave evidence that he did not see Mr Dermody at all prior to the collision.
He gave the following evidence about what was happening in the skate park prior to the incident:[13]
[13] T 92.22-T 93.14.
Q.Now during the course of the morning, did you hear anything coming over the loudspeakers.
A.No, I didn't.
Q.No, you didn't - sorry.
A.I heard the - there was a practice and that was all I heard.
Q.Did you hear music.
A.After the announcement, they do pauses on the music and they do the announcement and then it goes back to music, yep, so there is like that clear voice that states what's going on but I heard the practice was going on - well free ride, the free ride/practice.
Q.We will talk about that in detail in just a moment, before we come to that though, do you have recollections as to whether or not you participated in any events on that day before your injury.
A.No, I wasn't.
Q.And so, did you hear an announcement prior to your injury.
A.Nah.
Q.Did you hear anything coming over the speakers about what was to happen before you went back onto the park.
A.I just thought it was a practice ride, that was out of the - from the commentator, sorry.
Q.Okay, do you remember what the commentator said.
A.Just that it was a free ride.
Q.And what did you do when you heard that.
A.I went - I sat down for most of it as I didn't feel - I didn't want to ride at that current point but when it came closer to being my event, I wanted to get at least five minutes of a ride in.
The applicant gave evidence that he then went over to the quarter pipe. He said:[14]
A.I had to wait behind one person. I then looked around, didn't see anyone else that was currently riding, so I've put my scooter over the coping.
[14] T 93.24-26.
He said that at this time there were about 15 people spread around on the other side of the skate park, but none in his position.
As to what happened next, he stated:[15]
A.Once I put my scooter on the coping, looked around once again, made sure no-one was around and then that's when it was my shot to drop in.
Q.And when you looked around, what did you see around you.
A.There will be other people patiently waiting on the other side, there's sort of like an understanding, like when you know someone's going to be riding. So, I've got up, had a look around, no-one was currently there, so I've gone up, all right, it's my shot, looked around, no-one was going, so I went.
Q.Did you look in front of you as well.
A.Yes.
Q.And then what happened next.
A.I then proceeded to drop in and that's when my accident happened.
[15] T 94.10-25.
When asked what happened after he dropped in, he said:[16]
I then just remember blanking out, then woke up being in the arms of Justin and being carried away.
[16] T 94.34-35.
During his evidence, the applicant said that he knew of Mr Dermody, as he was a good bike rider, but denied they were friends, or even acquaintances. He said he had attempted to contact Mr Dermody via Facebook on several occasions prior to the trial. The applicant produced a series of Facebook messages exchanged between he and Mr Dermody, which had not previously been discovered.[17]
[17] Exhibit D5.
In one of those messages, Mr Dermody wrote:[18]
I told them that if they had the right barrier,s (sic) like skate comps have had since that day then it wouldn’t have happened it would have made sure the park was completely safe for us to do the demo… (my emphasis)
[18] Exhibit D5 p 6.
In another message, Mr Dermody wrote, apparently in relation to the statement that had been obtained from him by the respondents’ investigator:[19]
…system wasnt very loud when there is 100 kids all crammed around a skate park making noise U can’t hear what they are saying and no one really heard that we where (sic) doing our demo before the open session and they left all that out of it… (my emphasis)
[19] Exhibit D5 p 7.
The applicant did not call Mr Dermody to give evidence. He must have known from the contents of these messages that Mr Dermody’s recollection was that he was performing a demonstration at the time of the collision, and further, because of Mr Dermody’s use of the words ‘we’ and ‘our’, that it was his recollection that others had also been involved in a demonstration, before an open session.
The applicant called evidence from three witnesses.
One of those witnesses was his mother, Carla Ridge, who did not witness the collision. She claimed to have been sitting in the car, parked adjacent to the skate park, while her husband was putting the baby capsule in the car, in preparation for them to leave, so that she could go home and breastfeed the baby. She described sitting in the car, watching her other son, Kyle, riding his scooter on the track, when Tyler came running over to the car and told her about the collision.
Ms Ridge said she was sitting in the car, watching Kyle, for around 20 to 25 minutes. The effect of her evidence was that during that period (and therefore at the time the collision occurred) it must have been an ‘open session’, as otherwise Kyle would not have been on the track.
The applicant called evidence from his cousin, Briana Tootell.
She gave the following relevant evidence:[20]
[20] T 315.2-22.
Q.When you were standing on the quarter-pipe, just before Corey went down on the occasion on which he was injured, so just before we went down, when you were standing up there at that time, did you have a view as to other people on the park.
A.Yes.
Q.What was in your view.
A.Well, Corey obviously, and then he was standing and watching him.
Q.My question was about other people on the park, in the space.
A.In that area, no one, no.
Q.What do you mean by 'that area'.
A.Well, as people were skating, usually one at a time, at that point of time, when I seen Corey, he was alone in there. But that's this.
Q.Can I direct your attention then, I'm still talking about the same time, further around from that quarter-pipe area, back around to what would be your left. Were you aware of other people in the skatepark.
A.No.
Although Ms Tootell saw the impact, she was unable to provide much detail of what she observed. She gave the following evidence:[21]
[21] T 316.15-35.
Q.What did you see, break it down and do it in pieces.
A.Pieces, okay, well basically he started up from the top and as he went to go down, he skated and basically the incident happened. That's it.
Q.What's the incident.
A.He got hit.
Q.Did you see when he got hit.
A.Yes.
Q.What did you see.
A.A person on a bike and basically just collided with Corey.
Q.Did you see where that person came from.
A.No.
Q.When was the first time you saw the bike before the collision.
A.As he came into contact with Corey.
Q.Can you describe, as best you can, what it looked like when you first saw him.
A.Basically, as soon as I seen him he just collided with Corey and that was it. I didn't remember seeing him prior, nup.
She was asked if she could recall hearing any announcements being made in the five minutes or so before the collision and her response was that she did not remember.
Tyler Ridge (Tyler), the applicant’s older brother, gave evidence. He also saw the collision. In examination in chief, Tyler gave evidence of having heard an announcement. He said:[22]
A.That it was free break, lunch time, everyone gets a free ride, and that's when everyone started going on the skate park, and started getting lunch.
[22] T 329.12-14.
Although not entirely clear, the manner in which Tyler’s evidence unfolded during examination in chief was to the effect that the collision occurred shortly after that announcement.
However, during cross-examination, Tyler gave different evidence, namely that after hearing that announcement about a free period, he, the applicant and a few others, went to get some lunch from some food trucks. He said that thereafter he went back to the quarter pipe area and ate his lunch and then he went to speak to his parents. He then went back to the quarter pipe and that was when the accident happened.
Tyler gave evidence that he saw Mr Dermody prior to the collision. He said:[23]
Q.What was the first you saw of Justin Dermody before the collision.
A.I seen him riding up towards this bank and as he’s dropped in that’s when I first seen him.
Q.We’ll have to describe it in some words now so the transcript can understand what you saw. So the first time you saw him, where was he positioned.
A.I didn’t see him for – obviously the first time I seen him was when he actually came down – came down the ramp.
[23] T 333.18-27.
He said he realised a collision between Mr Dermody and the applicant was likely, so he threw his leg over his bike and tried to get to him, but by the time he got to the applicant, the collision had occurred. He did not see the actual impact.
The applicant did not call evidence from his cousin, Chad Lockwood, who apparently witnessed the collision, nor did he call evidence from his father, Wayne Ridge, or his younger brother, Kyle Ridge, both of whom were present at the skate park at the time of the collision.[24]
[24] The applicant explained that Chad was in custody. There was no explanation given as to why neither Wayne Ridge nor Kyle Ridge were called, except for hearsay evidence that Wayne Ridge did not see the collision.
There was no evidence at trial consistent with what was pleaded at paragraph 13 of the Second SOC, namely that Mr Dermody ‘cut across from another section located at the south eastern side in order to use the quarter pipe’.
From the pleading at paragraph 11 of the Second SOC, namely that the applicant ‘waited in line’ prior to the collision occurring, it can be inferred that the applicant, and others, had waited in a line, for their opportunity or turn to ‘drop in’ to the track, consistent with it being an ‘open session’ at the relevant time. The only evidence led at trial pertaining to that allegation, or even consistent with that allegation, was that given by the applicant, referred to at paragraph 55 herein.[25]
[25] T 93.24-26.
Mr Dermody was subpoenaed to give evidence by the second respondent, who did not proof him prior to trial. It was submitted that the applicant’s solicitors had had the opportunity to proof him prior to trial, and this was not disputed.
During his evidence-in-chief, albeit the subject of various concessions during cross-examination by the applicant, Mr Dermody gave evidence that the collision occurred while he was performing a BMX demonstration, immediately after two other BMX demonstrations had been performed by his friends, Daniel and David. He described the collision occurring immediately after he had undertaken a manoeuvre described as a ‘360’. He gave the following evidence:[26]
[26] T 409.3-37.
Q.No, I'm talking about just before you do your 360.
A.Just before I do my 360 I went around the bollards, cut through the bollards and there was a fair few people around there. A lot of them moved up against the fence to be able to let me through.
Q.And in terms of what was happening on the skate park at the time, was there anyone there.
A.No. There was no-one else in the park. There was Daniel and David had stopped up on the top.
Q.Can you just explain to the court what a 360 is.
A.360, you come up and just a 360 degree rotation. You bunny hop up in the air, 360 at the same time and then land in the bank.
Q.And if you could just describe the manoeuvre in terms of the 360 in the air what does that look like.
A.Just hop up and as you hop, you turn your body. I turn left, so I'd turn to the left and then you turn your head basically looking away from where you're about to land and you keep your head turned until you can spot your landing and you land and then push away.
Q.So does your body become suspended in the air.
A.Yes, it does.
Q.With your bike.
A.Yes.
Q.So, it's like an aerial flick.
A.Yep.
Q.Can you just tell the court and describe from when you left the ramp, exactly what you did.
A.Coming off the ramp I did my 360. Landed and as I've gone to push away, I've pushed away at the bottom. You're looking at your landing and what they call a pump. You force your body down into the bike into the bottom sort of groove of the bank to push away with a bit of speed and just after I'd done that I'd looked up and Corey had hit my handlebars.
The second respondent issued a subpoena for Daniel Vandenberk to give evidence. He attended court but refused to answer the subpoena.
None of the other witnesses called by the respondents saw the collision.
Mr Pigou, was retained by the fourth respondent to act as the ‘MC’ on the day of the event. He recalled making multiple announcements during the day over the PA system.
It was his recollection that immediately before the incident there was a warm up for a BMX event. Although he could not recall any specific announcement made by him prior to the collision, he said he was consistently making announcements throughout the day for scooter riders to vacate the park and that after the collision he felt vindicated from having done so. He said:[27]
If it was the warm-up to an event, then yes, I would have made an announcement that the event was about to start and that the only people on the park should be the people involved in that event.
[27] T 475.31-34.
He remembered seeing multiple BMX riders on the park immediately before the incident.[28]
[28] T 476.15.
Mr Pigou was not specifically questioned as to his recollection of announcing, or observing, any BMX demonstration, either immediately prior to the collision, or otherwise.
Ms Kitching (nee Walker) gave evidence as to the basis upon which she included in the incident report a description of the collision as having occurred during free time.
She gave evidence that she assumed the incident occurred during free time, as it involved a young person on a scooter and an older person riding a BMX bike. She explained that if the incident had occurred during competition time, the only person that would have been on the skate park at that time was the competitor. The fact the collision had involved riders of various ages and on mixed apparatus, led her to believe the incident had not occurred during competition time and therefore, that it must have occurred during free time.
Ms Kitching was cross-examined by counsel for the applicant on this specific issue and why she recorded what she did in the incident report. She gave the following evidence:[29]
[29] T 569.29-570.19.
Q.The people you consulted with to make this report included people who were there on the day; is that right.
A.Yes.
Q.And the likelihood is, isn't it, that that description that the accident happened in free time in between competition times was something you were informed of by people you consulted with for the purposes of this report.
A.No.
Q.Where did it come from then.
A.I was there on the day, so when I wrote the report two days later there would have been my own assumptions based on the mixed apparatus on the skate park -
Q.It might also have been -
A.- that it wasn't competition time.
Q.Well we know it wasn't competition time but that's an observation of yours, but it's also true, isn't it, that then the observation that it occurred in free time might be an observation you made directly.
A.I don't know exactly from 10 years ago but there would be a reason that it was free time at midday and why I wrote that.
Q.One of those reasons might be that you observed that at midday what was happening was a free time.
A.Potentially, yes.
Q.And in fact that's the most likely interpretation of what happened, isn't it.
A.Yes.
None of the other witnesses called by the respondents witnessed the collision, or were able to give any evidence as to the circumstances in which it occurred.
The Law
In Juno Pharmaceuticals P/L v Millennium Pharmaceuticals Inc, Besanko J summarised the relevant principles in the following terms:[30]
The overriding consideration in determining whether to grant leave to withdraw an admission is the interest of justice. In determining where the balance lies, a number of matters which overlap and interact are relevant. They are the circumstances in which the admission came to be made, the strength of the case now advanced that this admission is or may well be incorrect, whether the applicant has done all he or she could do to establish that the admission is incorrect, whether the applicant has acted in a transparent and straightforward fashion, any delay in making the application to withdraw the admission, the significance of the admission to the respective cases of the parties, prejudice to the applicant if the admission is not withdrawn and the respondent if it is, general prejudice to the applicant and respondent and finally, case management principles as discussed in Aon Risk Services Australia Ltd.
[30] [2009] FCA 526 at [38].
The application was made during the trial and after the applicant and the respondents had closed their respective cases.
The second respondent relied on the decision in Rowan v Cornwall & Ors (No 4)[31] as authority for changes being made to pleadings even after the close of the parties’ cases.
[31] [2001] SASC 348.
In that case, an application was made to amend the pleadings after closing submissions had been made by some of the defendants. Debelle J noted that the fact the application had been made at that late stage did not, standing alone, mean that it must be refused. He stated:[32]
The predominant issue, indeed the guiding principle, by which the court must consider whether, in the exercise of its discretion, it is proper to allow this application to amend must be whether the interests of justice are better served by allowing or dismissing the application: see Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478.
[32] [2001] SASC 348 at [7].
Debelle J went on to refer to what was said by Lord Griffiths in Ketteman v Hansel Properties, namely:[33]
Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and, in my view, a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the expectation that the trial will determine the issues one way or the other. Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.
Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. He can no longer afford to show the same indulgence towards the negligent conduct of litigation as was possible in a more leisured age.
[33] [1987] 1 All ER 38.
Debelle J referred to the observations made by the High Court in Queensland v JL Holdings Pty Ltd, namely:[34]
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
[34] (1997) 189 CLR 146, 154.
The decision in Queensland v JL Holdings P/L was overturned by the High Court in Aon Risk Services Australia Ltd v Australian National University.[35] As outlined by the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 at [46], there are a number of relevant matters that need to be taken into account when considering a late application to amend, namely:
[35] [2009] HCA 27.
(1)Whether there has been undue delay in making the application;
(2)The extent to which there will be wasted public resources in granting the amendment;
(3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
(4)Whether a trial date would need to be vacated or a trial adjourned;
(5)Whether there is any satisfactory reason for the delay in applying;
(6)Whether the point to be raised by the amendment would be raised in any event at the trial;
(7)The likelihood of strain and uncertainty being imposed on the litigants;
(8)Whether any further delay would undermine confidence in the administration of civil justice;
(9)Any other prejudice likely to be suffered by the other party;
(10)The additional costs likely to be incurred.
Submissions
Counsel for the second respondent submitted that it was in the interests of justice for the amendments to be allowed, having regard to the evidence at trial.
It was submitted that as Mr Dermody was not a party to the action, he had no reason to concoct a version of events, particularly given the nature of his communications with the applicant which suggested, if not some degree of friendship, at least a degree of support and sympathy for the applicant.
Counsel for the second respondent submitted that the applicant knew, prior to trial, that Mr Dermody’s recollection was that the collision occurred during a BMX demonstration, and therefore was not caught by surprise. Having regard to the alternative pleading at paragraph 4.6 of the fourth respondent’s Defence, the onus remained on the applicant to satisfy the court, on the balance of probabilities, that the collision occurred during an open session. The applicant knew Mr Dermody’s evidence was to the contrary and that Mr Dermody had been subpoenaed to give evidence. The applicant had the opportunity to cross-examine Mr Dermody and to test his assertion that the collision occurred during a BMX demonstration, with the benefit of having proofed him, and presented its case, armed with prior knowledge as to Mr Dermody’s likely evidence.
It was submitted that the applicant would not be prejudiced if the amendment was allowed, and that the proposed amendment merely reflected the evidence the witnesses had given at trial.
The proposed amendment was structured in the alternative, and in a different form to that sought to be pleaded by the second respondent at the time it made the first and second applications to amend. Two of those alternatives were already captured by paragraph 4.6 of the fourth respondent’s Defence, and the third alternative, namely that the collision occurred during a BMX demonstration, was arguably borne out by the evidence of the only independent witness who observed the collision, and was consistent with the recollection of Mr Pigou, namely that before the collision he recalled seeing BMX riders on the track.
In addition, counsel for the second respondent observed that the applicant had had the opportunity to cross-examine Ms Kitching on the contents of the incident report. It was submitted that it could not therefore be said that to allow the amendments would necessitate the applicant re-opening his case.
The submissions made by the applicant in opposition to the application included lengthy submissions addressing the evidence of the witnesses, particularly Mr Dermody, on the issue of whether the collision occurred in ‘free time’. It was submitted that the applicant had been entitled to rely on the admissions at trial and to allow the amendment would effectively change the nature of the case.[36] Counsel for the applicant had made a forensic decision, based on the pleadings, to confine his cross-examination of the witnesses to the case as pleaded, and had not questioned the various witnesses on the organisation of any such demonstration, to establish that it was negligently organised. If the amendments were allowed, it would be necessary for witnesses to be recalled for this purpose.
[36] By reference to UCR 67.6(3).
It was also submitted that it would be necessary for the applicant to consider calling evidence from other witnesses, such as members of SAPOL and Council volunteers, as to their recollection of the incident.
In addition, it was submitted the second respondent had failed to address earlier criticisms made by the court as to the delay in obtaining Mr Dermody’s statement and, if in fact the collision occurred during a demonstration, why the second respondent had changed the way it ran ‘open sessions’ in future events of this type.
Consideration
In considering the application I am mindful of its timing and the fact that the collision, and the preparation of the incident report, occurred over 12 years ago.
This dispute involves a determination as to whether, and to what extent, either the second and/or fourth respondents are liable for the injury, loss and damage sustained by the applicant in the collision.
In answering that question, the court is required to make numerous findings of fact. The court’s findings as to the circumstances in which the collision occurred are fundamental to the issues of both liability and causation. Those findings are not simply confined to whether the collision occurred in an open session, or at any other time. They include basic findings as to the movements of the applicant and Mr Dermody before the collision, what opportunity, if any, the applicant and/or Mr Dermody had to see each other before the collision such that it could be avoided, whether there were any other riders on the track at or about the time of the collision and if so where, and what was the speed and direction of travel of the applicant and Mr Dermody.
The applicant submitted that given the second respondent’s admissions, it was not necessary for him to call evidence from Mr Dermody, or even to contact him in order to ascertain his version of events, until the applicant learned Mr Dermody’s version differed from his.[37]
[37] Applicant’s Outline of Submissions at [4.7].
However, this submission ignores the fact and effect of the alternative pleading at paragraph 4.6 of the fourth respondent’s Defence. It fails to take into consideration that Mr Dermody, being the other rider involved in the collision and independent to the parties, was in arguably the best position to explain to the court his movements, observations and speed before the collision, and how he recalled the incident to have occurred. Mr Dermody’s evidence was not confined to the issue of whether or not this collision occurred in an open session. It was important evidence on matters fundamental to the court’s findings on liability.
The importance of Mr Dermody’s evidence is emphasised when consideration is given to the other evidence that was called at trial by the applicant.
The applicant did not see Mr Dermody before the collision and as such can shed no information on Mr Dermody’s movements or speed before the impact. Although Tyler saw Mr Dermody before the collision, he gave very limited evidence as to those observations, as outlined at paragraph 73 herein.
None of the witnesses called by the applicant gave evidence consistent with the case as pleaded at paragraph 15 of the Second SOC. Only the applicant’s evidence touched on the pleading at paragraph 12 of the Second SOC. Several family members, who were at the skate park at the time, were not called to give evidence, including the applicant’s father.
Other than Mr Dermody, none of the witnesses called by the respondent saw the collision.
Mr Dermody’s evidence must be considered in this context.
Further, Mr Dermody recalled that he had performed a ‘360’ immediately prior to the collision. The history as recorded in the Women’s and Children’s Hospital Emergency Department Record is that the applicant ‘was hit in face by airborne BMX rider’.[38] The court’s findings as to what Mr Dermody was doing before the collision, in terms of his speed and intention, also inform the court on the critical issue as to the likelihood the collision occurred in an open session.
[38] There was significant evidence at trial on the creation of this record and an explanation given for it. However, the applicant did not ultimately dispute that before the collision, Dermody had been performing an aerial trick, and indeed it was the applicant’s case that such trick must have involved a build-up of speed.
Ms Kitching gave evidence explaining why she included in the incident report the observation the incident occurred in ‘free time’. She gave evidence that she did not see the collision and first saw the applicant when he was at the first aid tent being treated by ambulance personnel. While it remains possible that another person told Ms Kitching the collision occurred in free time, I am satisfied that the second respondent has been transparent in explaining how the admissions came to be made, and why it was that ‘open sessions’ were conducted differently in subsequent similar events run by the Council.[39]
[39] I do not intend to go into detail about this evidence in this Ruling.
It is regrettable more concerted steps were not made earlier by the second respondent to procure a statement from Mr Dermody. However, I am satisfied, from what transpired during the trial, that Mr Dermody was a reluctant witness. I am satisfied that the second respondent’s inability to obtain a statement from Mr Dermody at an earlier time may at least in part, be explained Mr Dermody’s obvious reluctance to be involved in the action, particularly as a witness called by the second respondent.
The applicant conducted the case on the basis that as it was not pleaded by any party, the court could not make a finding that the collision occurred in a BMX demonstration. The applicant knew, before trial, of Mr Dermody’s version of events and that he had been subpoenaed to give evidence. Notwithstanding the admissions, the applicant also knew, from paragraph 4.6 of the fourth respondent’s Defence, that it remained for the applicant to establish, on the balance of probabilities, that the collision occurred during an open session. The applicant knew he was facing a claim that he had been contributorily negligent. As such, evidence from any potential witness as to how the collision occurred was relevant on the pleadings at trial. This includes not only Mr Dermody’s evidence, but evidence from anyone at SAPOL, or Council volunteers, who can now recall the circumstances of the collision.
As previously stated, the case as presented by the applicant at trial did not accord strictly with that as pleaded in the Second SOC. At the time of considering the first and second applications to amend, the court had not heard any evidence. It was entitled to proceed on an assumption that the applicant’s case would be presented in a manner consistent with those pleadings. That assumption was relevant to the court’s consideration, at the time of each of the first and second applications, as to the strength of the case as sought to be advanced by the second respondent in its proposed amended pleading(s), and whether it was in the interests of justice for the amendments to be allowed.
Further, at the very heart of the applicant’s case is an allegation that the second respondent was negligent in allowing an open session to be conducted which allowed the use of mixed apparatus on the track at the same time. The allegations of negligence as pleaded in the Second SOC do not include an express pleading to this effect.
I observe what was stated by the Federal Court in Celestino v Celestino,[40] having regard to the principles outlined in Cropper v Smith, namely:[41]
…the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases…I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party…[A]s soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.
[40] [1990] FCA 299.
[41] (1884) 26 Ch D 700 at 710-711.
I accept that if the amendments are made, there may be a necessity for some witnesses to be recalled, and that there will be additional stress, cost and inconvenience to the parties, and in particular to the applicant, in that event. I accept that there will also be a cost to the community if the court is required to hear additional evidence and submissions, thus preventing other cases from being reached in the court’s busy list.
Balanced against those important considerations is the fact the admissions sought to be withdrawn relate to a fundamental issue in dispute. If the application is refused, the court will be required to ignore critical aspects of Mr Dermody’s evidence. Mr Dermody is an important witness. Not only is he an independent witness, but as the other participant involved the collision, he is in a unique position to inform the court as to what he did, and why, before the collision. This is particularly so in this case, where the collision occurred over 12 years ago and where there is a paucity of reliable evidence as to the collision circumstances.
Pursuant to r 12.1 of the UCR, the Court may, of its own initiative, or on application by any person, make any order that it considers appropriate in the interests in justice.
Having heard the evidence at trial, and having carefully considered the submissions made by counsel and the factors outlined by Besanko J in Juno Pharmaceuticals, I am satisfied that it is in the interests of justice that the application be granted.
Orders
1.Leave is granted to the second respondent to file and serve an amended defence, within 7 days, in the form of the Second Respondent’s Defence Revision 2, annexed to the Written Submissions of the Second Respondent dated 5 February 2021.
2.I will hear the parties as to any ancillary orders.
3.The question of costs of and incidental to the application is reserved for determination by me, after the delivery of judgment.
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