Ridge v City of Salisbury Council (NO. 2)
[2021] SADC 87
•29 July 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RIDGE v CITY OF SALISBURY COUNCIL & ANOR (NO. 2)
[2021] SADC 87
Reasons of her Honour Judge Schammer
29 July 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT
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.
The event included closed sessions (competitions for riders in different age groups on different apparatus, warm up sessions and skate and BMX demonstrations), and open sessions, 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.
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 second respondent's admissions).
In its Defence dated 12 April 2019, 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'.
Prior to trial, the fourth respondent applied once unsuccessfully, to amend its Defence to add another alternative case, namely that the collision occurred, alternatively during a BMX demonstration.
Prior to trial, the second respondent made two unsuccessful applications to amend its Defence to withdraw the second respondent's 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 admissions, which application was granted.
The fourth respondent now applies for leave to amend its Defence in similar, but not identical, terms.
Orders:
1. Leave is granted to the fourth respondent to file and serve an amended Defence, within 7 days, in the form of the Fourth Respondent's Defence Revision 1, as annexed to the Bubner affidavit.
2. Leave is granted to the applicant to file and serve a Reply in response to the amendments made to the fourth respondent's Defence, within a further 7 days.
3. The question of costs of and incidental to the application is reserved for determination by me, after the delivery of judgment.
Ridge v City of Salisbury Council & Anor [2021] SADC 61; Leotta v Public Transport Commission (1976) 9 ALR 437; Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15; Drabsch v Switzerland and General Insurance Co Ltd v Ors Supreme Court of NSW, unreported, No.3008 of 1993; Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158; Mintech Resources Pty Ltd & Anor v Russell-Taylor & Anor [2012] SASCFC 67; Williams v Australian Telecommunications Commission (1988) 52 SASR 215; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Macks v Viscariello [2017] SASCFC 172, considered.
RIDGE v CITY OF SALISBURY COUNCIL & ANOR (NO. 2)
[2021] SADC 87
[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 action was initiated by Summons and Statement of Claim dated 9 July 2018 against three parties, the State of South Australia (the State), the City of Salisbury Council (second respondent) and Blue Light (SA) Inc (ABN 546 414 894 76) (Blue Light). The actions against the State and Blue Light were subsequently discontinued.
The second respondent organised the event. In its Defence dated 16 August 2018, the second respondent 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’.
In February 2019, nearly ten years after the collision, the applicant applied for permission, which was granted, to amend his claim to join J.R. Ottoway and A.N. Shepherd trading as Da Klinic Magazine (fourth respondent), as a party to the action.[1] 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.
[1] Order made by Master Norman on 4 March 2019.
By Interlocutory Application dated 12 July 2021 (FDN 93), supported by an affidavit sworn by Alexander Jonathon Bubner on that date (the Bubner affidavit), the fourth respondent applies, inter alia, for leave to amend its Defence ‘to reflect the evidence given at trial’ (application). The fourth respondent filed Written Submissions and a List of Authorities to support the application.
The application is opposed by the applicant. The applicant relies on affidavits sworn by Andrew Nicholson on 15 July 2021, 25 June 2021 and 6 October 2020.
Current Status of Action
The only issue in dispute between the parties is the issue of liability.
The trial in this action, on the issue of liability only, commenced before me on 6 October 2020 and is currently part-heard. The parties have closed their cases and closing submissions heard. During closing submissions, the second respondent applied to amend its Defence. By decision dated 28 May 2021, I granted the second respondent’s application (decision).[2] The decision is currently the subject of an appeal, which appeal must be determined (or otherwise resolved) prior to the delivery of judgment.
[2] See my Reasons in Ridge v City of Salisbury Council & Anor [2021] SADC 61. I adopt those Reasons insofar as they are relevant to my determination of FDN 93.
By application dated 25 June 2021, the applicant applied for leave to re-open his case against the second respondent (FDN 90). The hearing of FDN 90 has been deferred, pending the determination of the application.
Issues in Dispute/Pleadings at Trial
The second and fourth respondents each deny liability for the collision. Throughout the course of the action, both respondents have pleaded, 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 skate and BMX demonstrations held throughout the event, and ‘warm-up sessions’ for riders of specific apparatus, during which the skate park track was closed to persons other than those participating in that particular demonstration or warm-up session (closed sessions).
The applicant’s case is that the collision occurred during an open session.
At paragraphs 6 to 15 of the Second Statement of Claim (Second SOC), the applicant pleaded:
6.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.
7.Representatives of the First Defendant, Third Defendant and Fourth Defendant were present at the skate park. There were no organisers or facilitators regulating the use of or activities within the skate park at that time.
8.A representative of the fourth defendant announced the commencement of the open session.
9.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.).
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).
In its Defence to the Second SOC filed on 12 April 2019, the fourth respondent pleaded:[3]
In response to the allegations in paragraphs 6 to 15:
4.1it admits only that a collision occurred whereby the plaintiff was struck by a BMX bicycle which was ridden by another event participant;
…
4.6it says 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. (my emphasis)
[3] Fourth Defendant’s Defence at [4].
In its Defence filed on 20 August 2020, the second respondent made admissions to the effect that the collision occurred during an open session (second respondent’s admissions).[4]
[4] Second Respondent’s Defence Revision 1 at [6.3], [8] and [9].
On 3 September 2020, some five weeks before the commencement of trial, the second respondent and the fourth respondent, who were at that time jointly represented by the same solicitors, Minter Ellison, applied to amend their Defences. The second respondent sought leave to withdraw the second respondent’s admissions. The fourth respondent sought leave, inter alia, to amend paragraph 4.6 of its Defence to plead:
4.In response to the allegations in paragraphs 6 to 15:
…
4.6it 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. (my emphasis)
The applications were made on the basis of late information received by the respondents’ solicitors from Mr Dermody, in the nature of a statement provided by him in late August 2020 to investigators retained by the Local Government Association Mutual Liability Scheme, namely that the collision occurred during a BMX demonstration.
The respondents’ applications were heard before Judge Soulio on 17 September 2020 at which time he declined to make the orders as sought.[5] The judge dealt with both applications on the basis that they involved the withdrawal of admissions, and, from his ruling, it is unclear if there was any argument or discussion to the contrary.
[5] By ex tempore ruling of that date.
Trial
At the start of the trial, the second respondent made an application to amend its Defence to withdraw the second respondent’s admissions. That application was supported by an affidavit annexed to which were witness statements including a statement signed by Mr Dermody dated 15 September 2020. There was no similar application by the fourth respondent.
The applicant opposed the second respondent’s application on numerous bases, including that if the application was allowed, he would be forced to apply to adjourn the trial to proof Mr Dermody and to ascertain the availability of other potential witnesses. The application was refused.[6]
[6] Ex tempore reasons delivered on 6 October 2020.
Shortly thereafter, due to a conflict apparent on the pleadings, the fourth respondent applied to adjourn the trial to enable it to properly instruct new solicitors, Wallmans Lawyers, to act on its behalf, and new counsel, Mr Bullock, to prepare.
The trial resumed on 9 November 2020 and proceeded on the pleadings as contained in the Trial Book (Revision 1).
The applicant gave evidence and called evidence from his brother, Tyler Ridge, his mother, Carla Ridge and his cousin, Briana Tootel.[7] The witnesses were asked questions during examination-in-chief which included questions as to their recollection of what they observed was happening on the skate park immediately prior to the collision, what, if any, announcements they heard being made over the PA system prior to the collision and what, if anything, they actually observed in terms of the collision itself. In other words, they were questioned as to their recollection of the circumstances in which the collision occurred and the state of the skate park immediately prior to the collision.
[7] Insofar as is relevant to this application, their evidence is summarised in Ridge v City of Salisbury Council & Anor [2021] SADC 61.
The circumstances in which the collision occurred were matters in dispute on the pleadings.[8] Those circumstances include:
·how many people were on the skate park track at and immediately prior to the collision, their locations proximate to the applicant, and the type of apparatus they were using (being more specific issues than a consideration of simply whether or not the collision occurred in ‘free time’ or during a closed session);
·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.
[8] See Second Respondent’s Defence (Revision 1) at [10] and [13] and Fourth Respondent’s Defence at [4] and [9].
During cross-examination of the applicant, the applicant gave evidence that 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 with Mr Dermody, which had not previously been discovered.[9]
[9] Exhibit D5.
In a message to the applicant on 3 November 2020, Mr Dermody wrote:[10]
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)
[10] Exhibit D5, p 6.
In a further message to the applicant of that same date, Mr Dermody wrote, apparently in relation to the statement that had been obtained from him by the respondents’ investigator:[11]
…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)
[11] Exhibit D5, p 7.
As such, the applicant knew, prior to the re-commencement of the trial, that Mr Dermody’s recollection was that the collision occurred during a demonstration, and further that such demonstration involved more than one BMX rider (noting the use of the terminology ‘us’ and our’ in the text messages and what was contained in his statement made in support of the second respondent’s application made on 6 October 2020).
There is no dispute that prior to the re-commencement of the trial, Mr Dermody was proofed by the applicant’s solicitors, meaning that before the applicant called any evidence at trial, he was aware of the effect of any evidence that may be given by Mr Dermody, if called as a witness at the trial. That evidence was not confined to whether the collision occurred during a BMX demonstration (or at any other time), but included evidence relevant to specific facts in dispute as previously outlined.
The second respondent subpoenaed Mr Dermody to give evidence at the trial. The applicant objected to Mr Dermody giving any evidence to the effect that the collision occurred during a demonstration. 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, being relevant and admissible evidence, having regard to the issues in dispute on the pleadings.
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.[12]
[12] 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.
During its closing submissions, the second respondent applied for leave to amend its Defence, to withdraw the admission at paragraph 8 of its Defence[13] and to plead, in the alternative, that the collision occurred during a free skate period; or alternatively; during a BMX demonstration; or alternatively; during a BMX competitors’ warm-up. The application was argued (and opposed) on the basis that it involved the withdrawal of an admission, rather than an application which simply sought to add an alternative case to a pleading.
[13] Written Submissions of Second Respondent dated 5 February 2021 at [9.67].
Application
The fourth respondent seeks leave to amend paragraph 4.6 of its Defence to plead:
In response to the allegations in paragraphs 6 to 15:
…
4.6it says the collision occurred whilst the applicant was riding a scooter in the skate park at a time when the skate park was closed to riders other than BMX riders participating in a BMX demonstration or alternatively the ‘BMX’ competition warm up.
The applicant opposes the application, for the same (or similar) reasons he opposed the earlier applications made by both the second and fourth respondents to amend their defences.
However, having regard to my reasons in Ridge v City of Salisbury Council & Anor [2021] SADC 61, the applicant informed the fourth respondent, and the court, that despite such opposition, he would not argue against the fourth respondent’s application to amend the Defence if it was confined to an amendment to include the allegation, in the alternative, that the collision occurred during a BMX demonstration. In other words, if the proposed amendment did not involve the deletion of the words ‘in a free skate period, or alternatively’.
The applicant argued strongly against the fourth defendant’s proposal to delete those words from paragraph 4.6. The applicant contended that to do so amounted to a withdrawal of an admission within the meaning of UCR 67.6(3), such that the applicant would be required to prove that the collision occurred ‘during free time’, rather than simply meet the alternative case pleaded, namely that the collision occurred during a BMX warm-up. The applicant contended that he had conducted his case at trial on that basis and would therefore suffer significant prejudice if the amendment was allowed.
Fourth Respondent’s Submissions
The fourth respondent submitted that it was in the interests of justice for the amendment to be allowed, in the terms as sought.
It was submitted that the application arose out of the evidence given at trial, and was necessary to ensure that the fourth respondent’s defence clearly and unequivocally conformed to the case it ran at trial. It submitted that such case was, consistent with the pleading in the alternative at paragraph 4.6 of its Defence, that the collision occurred during a time when only BMX riders were allowed on the skate park track, being a closed session, and not during ‘free time’.
The fourth respondent submitted that it was important therefore not simply to add, as an alternative case, that the collision occurred during a BMX demonstration (similar to that as pleaded in the Second Respondent’s Defence -Revision 2), but to remove any reference to the third alternative case, namely that the collision occurred in ‘free time’, as that was inconsistent with all of the evidence given at trial, and inconsistent with its case at trial.
The fourth respondent relied upon several authorities to support the application. It contended that the position as set forth by the High Court in Leotta v Public Transport Commission, applied to the within matter, namely:[14]
…If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts, which if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged...a plaintiff does not fail by being refused leave to amend or through failure to formally apply for amendment where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action.
…
These observations apply a fortiori to a case where amendment would not raise a fresh issue based on a different duty of care but would only amend the expression of the course of events so that the facts pleaded would conform with the evidence given.
[14] (1976) 9 ALR 437 at 446.
Counsel for the fourth respondent also relied on the decision in Thomson v STX Pan Ocean Co Ltd.[15] In that case, the Federal Court outlined that although the primary purpose of pleadings was to define the issues at trial, to give notice to and avoid surprise to the other party as to the case to be met at trial, pleadings were ‘not an end in themselves’, and ought not be interpreted in an unduly technical or restrictive way, such that a party was not strictly bound to the literal meaning of the case it had pleaded.
[15] [2012] FCAFC 15 at [13].
Reference was made to language used by the applicant’s counsel during the trial, wherein he described the alternative plea at paragraph 4.6 as an ‘open BMX session - practice session’, as distorting the purpose of that pleading, namely to put the applicant on notice that the fourth respondent intended to run a defence at trial that the skate park was closed to riders other than BMX riders, at the time of the collision.[16]
[16] T 224, T 154, T 156, and Written Submissions of the Fourth Respondent at [27] and [30].
It was submitted that the applicant had made a forensic decision to run a case at trial, namely that the collision occurred during a chaotic open session, which case was not supported by his evidence or that of his witnesses.[17] Further, it was submitted that the applicant had done so notwithstanding that he knew, before the re-commencement of the trial, that the effect of any evidence to be given by Mr Dermody, was that the collision occurred at a time when the skate park track was closed to anyone other than BMX riders, consistent with the effect of the alternative case as pleaded by the fourth respondent (albeit Mr Dermody recalled the collision occurred in a BMX demonstration, not a BMX warm-up). As such, there was no ‘surprise’ to the applicant.
[17] Written Submissions of the Fourth Respondent at [22] and [24].
Notwithstanding that the applicant contended the state of the skate park (ie whether it was open or closed) was not a matter it was required to prove at trial, the applicant had called evidence to support his case, while maintaining that evidence to contradict that case was inadmissible,[18] and had cross-examined Mr Dermody as to whether or not he was undertaking a demonstration at the time of the collision.[19]
[18] Written Submissions of the Fourth Respondent at [23].
[19] T 444-447 and T 459-460.
The fourth respondent submitted that the state of the skate park, and whether or not the collision occurred during an open or closed session, was always a live issue at trial for determination by the court, having regard to the alternative plea at paragraph 4.6 of its Defence (ie the collision occurred during a BMX warm-up, being a ‘closed session’) and the allegations of contributory negligence.[20] As such, insofar as it was submitted by the applicant that he would suffer prejudice if the application was allowed, such prejudice in fact arose from the tactical decisions made by the applicant at trial.
[20] Written Submissions of the Fourth Respondent at [26].
The fourth respondent submitted that by the amendments proposed, it was not seeking to withdraw an admission, rather it sought to strike out one of two alternative cases, that alternative case being inconsistent with the case advanced by the fourth respondent at trial. It emphasised the wording used in paragraph 4.6 of the Defence (namely the use of the phrase ‘it says’, rather than ‘it admits’) as being consistent with the fourth respondent expressing that it did not know the true state of the skate park track at the time of the collision. It was submitted that the two expressed alternative propositions in that paragraph were clearly inconsistent with one another, and inconsistent therefore with the first part of paragraph 4.6 constituting either an admission, or a ‘clear and distinct admission’.[21]
[21] Noting the principles as outlined in Drabsch v Switzerland and General Insurance Co Ltd v Ors (Supreme Court of NSW, unreported, No.3008 of 1993) and applied by Debelle J in Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 at [31].
Finally, it was submitted that the fourth respondent’s position was stronger than that of the second respondent (which had been successful in its application to amend), having regard to the fourth respondent’s late joinder to the proceedings, and the fact that its current solicitors had not had the opportunity of proofing Mr Dermody prior to trial.
Applicant’s Submissions
The applicant raised the same objections to the application, as raised pertaining to the second respondent’s most recent application to amend. Succinctly put, he submitted that the applicant had the benefit of the admission in paragraph 4.6 at trial, he conducted the trial having regard to the admission and UCR 67.6(3), and that he made deliberate decisions in terms of negotiations before trial, his preparations for trial and examination of witnesses, based on the state of the pleadings at that time.
The applicant submitted that he was entitled to rely on the pleadings at trial, and to conduct the trial in accordance with those pleadings. Counsel for the applicant referred to what was said by the Full Court in Mintech Resources Pty Ltd & Anor v Russell-Taylor & Anor,[22] adopting what was said by King CJ in Williams v Australian Telecommunications Commission,[23] namely:
The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purposes of the rules as to res judicata and issue estoppel. The second function is to give the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting therefrom.
[22] [2012] SASCFC 67 at [41].
[23] (1988) 52 SASR 215.
The applicant also relied on what was said by Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd,[24] and by the Full Court in Macks v Viscariello,[25] to the effect that the applicant would be denied procedural fairness if the pleadings were now amended as sought (or at all).
[24] (1990) 169 CLR 279.
[25] [2017] SASCFC 172 at [111].
The applicant submitted that the application went further than the second respondent’s application. It was submitted that if the court allowed the removal of the words ‘in a ‘free skate’ period, or alternatively’ from paragraph 4.6, this meant the applicant no longer had the benefit of UCR 67.6(3), and thus was not simply required to ‘meet’ the alternative case/s as put by the respondents, but to prove, on the balance of probabilities, that the collision occurred during a free skate period.
It was submitted that, having the benefit of UCR 67.6(3) at trial, counsel for the applicant had not specifically cross-examined the applicant’s witnesses as to whether the collision had occurred during a BMX demonstration or to ‘corroborate the admission’ that the collision occurred in free time, nor had the applicant fully explored the topic of the alleged demonstration in cross-examination of Mr Dermody or the other witnesses called by the respondents.
Further, it was submitted that to grant the application in the terms as sought would be to retrospectively make Mr Dermody’s evidence admissible for purposes beyond that for which it was admissible at trial. In this respect, it was submitted that Mr Dermody’s evidence that the collision occurred during a demonstration was admissible only insofar as the applicant was cross-examined about the use of the word ‘demo’ by Mr Dermody in the Facebook messages.
Consideration
I have outlined the relevant law pertaining to the amendment of pleadings at this late stage of a proceeding, and in circumstances where that amendment amounts to the withdrawal of an admission, in my decision dated 28 May 2021.
As explained in that decision, 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, including the state of the skate park immediately prior to the collision, are fundamental to the issue of liability.
The case as advanced by the fourth respondent at trial and clearly articulated in its closing submissions, was that the collision occurred at a time when the skate park track was closed to persons other than BMX riders, specifically pleaded as those BMX riders doing a warm-up.
UCR 67.6(3) states:
If a defence admits an allegation, unless the Court otherwise orders, to the extent that the allegation is admitted -
(a)the opposing party is entitled to rely on that admission and is not required to prove that allegation at trial; and
(b)the party making the admission must not adduce evidence to disprove the allegation.
If the applicant is correct, and UCR 67.6(3) relevantly applies to the purported admission in paragraph 4.6 in the fourth respondent’s Defence, then that would mean that notwithstanding the alternative inconsistent factual position as specifically pleaded in that same paragraph, the fourth respondent was not entitled to adduce evidence at trial to support that alternative position, absent order of the court, as to do so would amount to adducing evidence to disprove the purported admission. That position is untenable.
In my view, paragraph 4.6 of the fourth respondent’s Defence does not amount to an admission that the collision occurred during an open session as contemplated by UCR 67.6(3). Rather, the pleading strictly pleads two potential and inconsistent alternatives, such that UCR 67.6(3) does not apply. As such, in my view, the applicant was and is required to prove the collision occurred during an open session, irrespective of whether paragraph 4.6 is amended to remove the words ‘in a ‘free skate’ period, or alternatively’, or at all.
If I am wrong about that, by virtue of what was pleaded in paragraph 4.6 of the Fourth Respondent’s Defence, the applicant knew, prior to trial, that he was required, at the very least, to meet the alternative case pleaded in paragraph 4.6, being a case inconsistent with a finding that the collision occurred during a free skate period (or an open session). As such, the evidence of any witness able to shed light on the circumstances of the collision and how it occurred, including the state of the skate park immediately before the collision, was relevant to the issues in dispute on the pleadings at trial.
The second respondent’s most recent application to amend was argued and determined as an application to withdraw an admission. The application was successful. The Second Respondent’s Defence – Revision 2, now pleads an alternative case at paragraphs 6.3 and 8, namely:
6.In relation to the allegations in paragraph 6 of the Second Statement of Claim, the second respondent says that:
…
6.3a representative of the fourth respondent announced that the skate park track was available for a free skate period or for a BMX demonstration or for a BMX competitors warm up session prior to the alleged incident.
….
8.In relation to the allegations in paragraph 8 of the Second Statement of Claim, the second respondent says that a representative of the fourth defendant announced the commencement of a free skate period or a BMX demonstration or a BMX competitors warm up session.
Further, at paragraph 9 of its revised defence, the second respondent now pleads:
In relation to the allegations in paragraph 9 of the Second Statement of Claim, the second respondent says only that during free skate periods the skate park was open for use by members of the public riding BMX bicycles, skateboards and scooters, but that access to the skate park was restricted as announced by representatives of the Fourth Defendant during a BMX demonstration or BMX competitors warm up session.
As such, by virtue of the present state of the pleadings, at the very least, the applicant is required to meet the case that the collision occurred during a BMX demonstration.
In his affidavit dated 25 June 2021, filed in support of the applicant’s application to re-open his case as against the second respondent, but also relied upon in opposition to FDN 93, Andrew Nicholson deposed:
11.Had the Applicant been at all times aware, and the trial had been run on the basis, that the applicant needed to prove that the subject incident occurred during an open session:
i. The Applicant would have dealt differently as to any pre-trial offers of settlement;
ii. Made further and better investigations into the issue of whether the subject incident occurred during an open session;
iii. Dealt differently with evidence obtained in chief and cross-examination;
iv. The Applicant is therefore significantly prejudiced by now being presented with a materially different case to answer after the Second Respondent had closed its case;
v. That prejudiced (sic) can only be cured by a full retrial or allowing the Applicant to reopen his case and present further evidence.
12.In the circumstances, the Applicant must now bring an application to reopen his case.
13.This would entail the Applicant making further enquiries and carrying out further investigations as to the issue the issue (sic) of whether or not the subject incident occurred during an open session. (my emphasis)
In my view, the prejudice described therein being that said to have already been incurred by the applicant as a result of the amendment of the second respondent’s Defence, mirrors that which the applicant submits will arise in the event the fourth respondent’s application is allowed in the terms as sought.
In considering this application I am mindful that the fourth respondent is in a slightly different position than that of the second respondent. I do not have affidavit evidence as to precisely why paragraph 4.6 of the Defence was drafted in the terms it was.
However, that Defence was filed in April 2019, ten years after the collision. The fourth respondent first received notice from the applicant that it was to be joined as a party to the action by letter dated 3 September 2018.[26] This was more than nine years after the collision.
[26] Exhibit D9.
None of the witnesses called by the fourth respondent at trial witnessed the collision. It is likely that the incident report, prepared by the second respondent, which referred to the collision as having occurred in free-time, was in the fourth respondent’s possession at the time the Defence was drafted.
Notwithstanding my observation that the amendment as sought does not constitute the withdrawal of an admission within the meaning of UCR 67.6(3), I am satisfied that, insofar as it may be necessary, the application meets the test necessary for the withdrawal of an admission, namely it is in the interests of justice for the amendments to be made in the terms as sought.
Orders
1.Leave is granted to the fourth respondent to file and serve an Amended Defence, within 7 days, in the form of the Fourth Respondent’s Defence – Revision 1, as annexed to the Bubner affidavit.
2.Leave is granted to the applicant to file and serve a Reply in response to the amendments made to fourth respondent’s defence, within a further 7 days.
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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