Soma-Devan v SCentre Shopping Centre Management Pty Ltd t/as Westfield Hurstville

[2020] NSWSC 125

Supreme Court

New South Wales

Medium Neutral Citation:	Soma-Devan v SCentre Shopping Centre Management Pty Ltd t/as Westfield Hurstville [2020] NSWSC 125
Hearing dates:	24 February 2020
Date of orders:	25 February 2020
Decision date:	25 February 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)   Order that the plaintiff be permitted to inspect the first defendant’s premises known or described as Westfield Hurstville together with her expert witness and legal representative at such time and on such date as the parties are able conveniently to arrange. (2)   Order the first defendant to pay the plaintiff’s costs of and incidental to her notice of motion dated 25 November 2019. (3)   Grant leave to the plaintiff to file a second amended statement of claim in the form of the document being annexure “C” to the affidavit of Paul Anthony Curtis sworn 4 February 2020. (4)   Order the plaintiff to pay the costs of the first defendant and the third defendant thrown away or occasioned by the plaintiff’s decision to amend.
Catchwords:	INSPECTION OF PROPERTY – where plaintiff alleges she slipped on floor of shopping centre – whether plaintiff entitled to inspect premises where she fell and was injured – whether issue of the condition of the floor and whether it was slippery are sufficiently raised on the pleadings as to entitle the plaintiff to the inspection order that she seeks
Legislation Cited:	Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Prashadhinee Soma-Devan (Plaintiff) SCentre Shopping Centre Management Pty Ltd t/as Westfield Hurstville (First Defendant) Ezko Property Service (Aust) Retail Pty Ltd (Third Defendant)
Representation:	Counsel: M McAuley (Plaintiff) D Talintyre (First Defendant)   Solicitors: Paul A Curtis & Co (Plaintiff) WL Ebsworth Lawyers (First Defendant) Wotton + Kearney (Third Defendant)
File Number(s):	2018/331214
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Ms Prashadhinee Soma-Devan was injured on 26 November 2015 when she slipped and fell at premises known as Westfield Hurstville, owned and occupied by the first defendant. She alleges that she stepped on ice cream that was on the floor which the third defendant had failed to remove in accordance with its contract with the first defendant. These allegations are denied. I am not required to resolve the dispute among these parties for the purposes of the present application.

2. Ms Soma-Devan seeks an order by notice of motion dated 25 November 2019 that she and her liability expert and legal representatives be permitted to conduct a site inspection at Westfield Hurstville for the purpose of examining the floor upon which she was walking at the time of her fall. That application is opposed.

3. The statement of claim commencing these proceedings was filed on 29 October 2018. By letter dated 21 December 2018, the solicitors for the first defendant sought particulars of the claim. Among other things, they asked what specific precautions the plaintiff alleged should have been undertaken against the risk of harm. The letter also sought particulars of the allegation that the floor was unsafe and of the manner in which it is alleged that the precautions that should have been taken would have averted the plaintiff’s injuries.

4. That letter prompted a reply from the plaintiff’s solicitor dated 22 February 2019 which is of some considerable length. Despite that fact, the first defendant maintains that the statement of claim and the particulars provided were together still inadequate to elucidate the precise manner in which the claim against it was said to be made out. The first defendant’s opposition to the present application was therefore based upon the proposition that an inspection of the premises should not be ordered until that issue was clarified.

5. By the time the present application reached me, the parties had engaged in a considerable amount of preparation, including the swearing of affidavits, the exchange of written submissions, a procedural chronology and a schedule comparing the parties’ respective requests for, and answers to, particulars. It would be incorrect to say that the present application has been underprepared.

6. However, by letters dated 3 February 2020, after the first defendant’s notice of motion was filed, the solicitor for the plaintiff wrote two letters to the first defendant’s solicitor enclosing with the first letter what was referred to as a proposed second amended statement of claim, seeking the endorsement of consent to its filing, and by the second letter, providing detailed answers to the first defendant’s request for particulars dated 28 May 2019. The letters prompted a reply dated 7 February 2020 that included the following:

“We refer to your two letters dated 3 February 2020, one serving a proposed Second Amended Statement of Claim and the other purporting to provide further and better particulars in answer to our request dated 28 May 2019.

We note we first invited you to amend your client’s pleadings in our letter dated 28 May 2019 and explained further the reasons for that invitation in our letter dated 25 June 2019, both of which are contained in the evidence you have served in support of your client’s extant Notice of Motion.

We further note no explanation has been offered for your client’s significant delay in acceding to that invitation, given your client has been in possession of the relevant CCTV footage since November 2017.

Lastly, we note that despite being ordered on 21 May 2019 to respond to our letter dated 28 May 2019 by 4 June 2019 and then again on 6 September 2019 by 17 September 2019, no explanation has been offered for your client’s serial breach of those orders and/or her significant delay in finally purporting to comply with same.

Our client is prepared to consent to the filing of the proposed Second Amended Statement of Claim on the following basis/provisos:

1. That plaintiff consent to an order at the next directions hearing that she pay the defendants’ costs thrown away and incurred by reason of the filing of the Second Amended Statement of Claim.

2. The plaintiff provide, within 28 days, further and better particulars of the amendments contained in the Second Amended Statement of Claim, as set out in the attached Schedule 1.

3. The plaintiff provide, within 28 days, proper answers to identified questions in the defendant’s request dated 28 May 2019, as set out in the attached Schedule 2.

4. The plaintiff’s extant Notice of Motion currently set down for hearing on 24 February 2020 be adjourned for eight weeks with costs reserved.

We will seek further instructions with respect to the substantive order sought in the Notice of Motion following receipt of the further and better particulars referred to in 2 and 3 above.

Subject to being provided with a properly particularised pleading from your client, our client may consent to a site inspection of its premises being conducted by and on behalf of the plaintiff, thus rendering the Notice of Motion otiose, except as to its costs.

Accordingly, the Notice of Motion and the matter generally should be listed for directions on a convenient date to the Court in approximately eight weeks’ time.

We look forward to hearing from you.”

7. I am now informed that the plaintiff proposes to seek leave to file the amended statement of claim. Mr McAuley of counsel for the plaintiff uncontroversially acknowledges that an order protecting the first defendant’s costs thrown away or occasioned by the amendment, if allowed, would be difficult to resist. The first defendant is still not prepared to agree to the present application for an inspection of the premises, even with the benefit of the more fully pleaded statement of claim, unless and until the outstanding request for particulars of the proposed pleading has been satisfied.

8. In response to that contention, the plaintiff maintains that at least the following requests for particulars sought by the first defendant with respect to the proposed amended pleading cannot actually be answered by the plaintiff until after the inspection takes place:

“As to paragraph 41.3

1. What does the plaintiff allege the floor should have been treated with? If more than one option was available to the first defendant, kindly identify each of them.

2. Please define ‘non-slip nature’ by reference to any applicable legislation, regulation, standard, code or guideline.

3. How does the plaintiff allege the floor ought to have been treated?

4. What would be the cost per annum to the first defendant of ensuring that the surface of the floor was treated, as alleged?

As to paragraph 41.9

9. What does the plaintiff allege would constitute ‘non-slip construction’, including any definition of ‘non-slip’ that will be relied on at trial by reference to any applicable legislation, regulation, standard, code or guideline?

10. What building material(s) does the plaintiff allege should have been used to achieve the ‘non-slip construction’ pleaded? If more than one option was available to the first defendant, kindly identify each of them.”

9. Moreover, the plaintiff contends that her solicitor’s longer letter dated 3 February 2020 contains what were then and what remain now the best particulars that she can provide without the benefit of an inspection.

10. It is important at this point to note that the first defendant is concerned to emphasise that its opposition to the inspection is not merely unprincipled and obstructive. It contends that, if the plaintiff were possessed of sufficient information for her solicitor to certify that there were reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the plaintiff’s claim for damages in these proceedings had reasonable prospects of success, she ought now to be able to answer the first defendant’s questions even without an inspection of the subject premises. If that were so then, the plaintiff should be required to answer the outstanding particulars as a condition of the grant of the relief that she seeks now.

11. It is apparent that the plaintiff contends both that the floor surface of the shopping centre was inherently slippery and accordingly unsafe in its natural condition without the presence of any foreign material as well as being slippery if some substance such as ice cream were deposited upon it.

12. On 6 February 2019, in response to the statement of claim as originally filed, the solicitors for the first defendant wrote to the plaintiff’s solicitor offering the unsolicited concession that “terazzo [sic], like any other surface, may be slippery when contaminated with a substantial liquid spillage”. However, by a more recent letter dated 21 February 2020, the first defendant’s solicitors advised the plaintiff as follows:

“1. We refer to our correspondence dated 6 February 2019 and 7 February 2020 and your letter dated 3 February 2020 purporting to provide further and better particulars.

2. In light of your contention in answer to question 1(a) that the surface upon which the plaintiff fell may be ‘highly polished ceramic tile’, we have since clarified our previous instructions as to the materials from which the floor was constructed.

3. We are instructed that the floor was constructed from a combination of ‘white marble stone’ and ‘Tundra grey limestone’ flooring products.

4. We remain of the view that the floor exhibits the same relevant characteristics as terrazzo and repeat, mutatis mutandis, the content of our letter dated 6 February 2019.”

13. UCPR 23.8 provides as follows:

“23.8 Inspection of property

(1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following--

(a) the inspection of any property,

(b) the taking of samples of any property,

(c) the making of any observation of any property,

(d) the trying of any experiment on or with any property,

(e) the observation of any process.

(2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made.

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

(5) …

(6) In this rule,

‘property’ includes any land and any document or other chattel, whether in the ownership or possession of a party or not.”

14. UCPR 2.1 says this:

“2.1 Directions and orders

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.”

15. Having regard to the terms of UCPR 23.8(1), the first defendant submitted that unless the pleadings give rise to a question that requires a site inspection to answer it, no site inspection should be ordered. While that proposition strikes me as singularly uncontroversial, the first defendant’s opposition to the plaintiff’s request for a site inspection is not.

16. The plaintiff wishes to maintain that the floor in the shopping centre was slippery, with or without the presence of ice cream or some unidentified liquid. Allowing for the unfortunate lapse of more than 4 years and the inevitable dispute about what “slippery” actually means, the answer to that question is either yes it was or no it was not. Experience in this Court and others in this State suggests that the assessment of that issue in these proceedings will either be a matter for expert evidence, or will not be capable of assessment without the benefit of the opinion of experts.

17. I have some considerable difficulty with the suggestion that assessment and determination of the propensities of the floor in the location at which the plaintiff sustained her injuries is not now, or will not be at the trial, “a matter in question in [these] proceedings”. I understand the first defendant’s concern that, on one view, the plaintiff has not properly or adequately particularised with precision the way or ways in which her claim is to be propounded. However, I disagree with the submission that the plaintiff’s obligation to particularise her claim in this way ought to amount in effect to a disqualifying precondition attaching to her right to the relief that she seeks.

18. The first defendant emphasised that “the Court can only be confident of [the just, quick and cheap resolution of the real issues in the proceedings] if the real issues in the proceedings have been raised and defined by the pleadings”. Doing the best I can with the benefit of my experience, I confidently anticipate that at least one of those “real issues” will be whether the floor was slippery at the time the plaintiff was injured. What I take for practical purposes to be the current state of the plaintiff’s pleadings, in the form of the proposed second amended statement of claim, more than adequately raises that issue. It is an entirely different question whether the plaintiff can make out that case at trial. In my opinion, the plaintiff is entitled to inspect the premises with her expert in order to assist her with that case.

19. The first defendant asks for costs of this application. It submits that its opposition to the relief sought in the plaintiff’s motion was not unreasonable and that an inspection of the premises could have occurred well before now if the plaintiff had accepted the proposals outlined in the letter dated 7 February 2020 referred to earlier. The difficulty with that contention is that I disagree that the plaintiff’s entitlement to an inspection is or should have been made subject to provision of the outstanding particulars. On one view, the plaintiff required the inspection to answer them, or some of them. It is not entirely without significance as well that the precise nature or physical characteristics of the floor or what it was constructed from emerged only very recently.

20. In my view, the first defendant should pay the plaintiff’s costs of, and incidental to, the motion. The third defendant took what amounted to a neutral position on that application. There should therefore be no order as to the third defendant’s costs of the application for an inspection.

21. So far as concerns the plaintiff’s application for leave to amend her statement of claim, she should be ordered to pay the costs of both defendants that they may have incurred or wasted as the result of her decision to amend.

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Decision last updated: 25 February 2020