Tannenbaum v East Perth Redevelopment Authority

[2005] WADC 124

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   TANNENBAUM -v- EAST PERTH REDEVELOPMENT AUTHORITY & ORS [2005] WADC 124

CORAM:   COMMISSIONER SCHOOMBEE

HEARD:   24 MAY 2005

DELIVERED          :   25 MAY 2005

FILE NO/S:   CIV 77 of 2002

BETWEEN:   DENNIS ALAN TANNENBAUM

Plaintiff

AND

EAST PERTH REDEVELOPMENT AUTHORITY
First Defendant

LANDSPACE PTY LTD
Second Defendant

GAEBERN PTY LTD
Third Defendant

BUX GROUP PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Amendments to defence - Already pleaded by other defendant - Amplification of denial - No prejudice

Legislation:

Nil

Result:

Applications granted

Representation:

Counsel:

Plaintiff:     Mr G Droppert

First Defendant              :     Mr G Porter

Second Defendant         :     Mr P G McGowan

Third Defendant            :     Mr M L Greenland

Fourth Defendant           :     Mr M L Greenland

Solicitors:

Plaintiff:     Donna Percy & Co

First Defendant              :     Talbot & Olivier

Second Defendant         :     Phillips Fox

Third Defendant            :     Greenland Brooksby

Fourth Defendant           :     Greenland Brooksby

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. COMMISSIONER SCHOOMBEE:  This matter concerns two applications, one by the second defendant and one by the third and fourth defendants for leave to amend their perspective defences.  I shall first deal with the application by the second defendant for leave to re‑amend its amended defence to the plaintiff's amended statement of claim.

2. The plaintiff's claim is in respect of personal injuries which he incurred when the front wheel of his bicycle became caught in a gap between longitudinal wooden planks which intersected the surface of a pathway on which the plaintiff was cycling along the Swan River at East Perth.  The plaintiff says that when the front wheel got caught between the planks he was thrown forward landing face down on paving stone in the vicinity of the pathway.  The plaintiff has sued the first defendant, the local authority, as occupier of the pathway, the second defendant, a firm of landscape architects, and the third and fourth defendants who apparently provided and fixed into position the wooden planks.

3. The second defendant pleads in its defence that it traded as a firm of architects and entered into a written agreement with the first defendant on 15 April 1994 pursuant to which it agreed, among other things, to prepare a preliminary landscape design and to administer the construction contracts.

4. The plaintiff alleges in his amended statement of claim that his accident was caused by the negligence of the second defendant in that it, amongst other things, failed to competently supervise the third and fourth defendants in the construction of the planks on the pathway with a result that the planks were hazardous to cyclists by reason of the gaps between the planks.  In his amended statement of claim the plaintiff has at all times referred to the pathway as the "cycleway".  In pars 3 and 4 of the amended statement of claim the "cycleway" is said to run parallel to the Swan River in Mardelup Park in East Perth.

5. In the second defendant's re‑amended defence, as it currently stands, the allegations in pars 3 and 4 of the statement of claim are not admitted.  In addition, certain allegations are made in response to pars 3 and 4 of the statement of claim which include that there was a "dual‑use path" adjacent to the Swan River and which describe the nature and origin of this path.  There are further paragraphs in the existing defence by the second defendant in which the words "dual‑use path" or "paths" have been used.

6. The second defendant now seeks to amend its re‑amended defence by the deletion of all references to "dual‑use path" and "paths" and the replacement thereof by the words "pedestrian pathway".  The plaintiff objects to the proposed amendments at this late stage (about four weeks prior to the trial) on the basis that he would then be required to prove that the pathway was designated and constructed as a cycleway, whereas on the current pleadings this is not necessary as the second defendant has pleaded that the pathway was a dual‑use path.  Counsel for the plaintiff argued that the only reasonable interpretation of the words "dual‑use path" would be that it was a pathway used by pedestrians and cyclists.

7. In the grounds for the application set out in the second defendant's chamber summons, the second defendant states that the plaintiff's objection to the proposed amendments is that the amendments withdraw admissions previously made by the second defendant.  However, at the hearing counsel for the plaintiff did not press the argument that the second defendant had made an implied admission by referring to "dual‑use path" in its allegations pleaded in response to pars 3 and 4 of the plaintiff's statement of claim.  Counsel for the second defendant argued that it did not involve any admission at all because the second defendant had "not admitted" that the pathway was a cycleway.

8. I agree that by referring in an additional allegation to a "dual‑use path", the second defendant has not necessarily admitted the plaintiff's allegation that it was a cycleway.  Accordingly, the case law dealing with a withdrawal of an admission is not relevant to this matter.

9. This still leaves the question whether the amendment can be made at this late stage, namely about four weeks prior to trial.  Counsel for the second defendant argued that there was no prejudice to the plaintiff resulting from the late amendment as the plaintiff would in any event have to prove that the pathway was a cycleway, as this has also been denied by the first defendant and the third and fourth defendants.  The third and fourth defendants have in fact admitted the plaintiff's allegation that it was a cycleway.  However, the first defendant denies in par 2(a) of its amended defence that the cycleway was designated as such and pleads that it was a pedestrian pathway.

10. Counsel for the plaintiff handed up an answer to interrogatories supplied by the first defendant (then the only defendant) which states that there were two "dual‑use" north‑south pathways within Mardelup Park (one of which appears to be the pathway in issue adjoining the Swan River) and that there was a cycleway following Victoria Terrace on the park's western side.  The plaintiff's counsel argued that by this answer to interrogatories the first defendant had admitted that the pathway was a dual‑use pathway and that the plaintiff was not required to prove that the pathway was a cycleway as far as the first defendant was concerned.  Counsel for the second defendant submitted that this was incorrect and pointed out that apart from the first defendant's denial in par 2 of its amended defence that the pathway was designated as a cycleway, the first defendant had also pleaded as one of the particulars of the plaintiff's contributory negligence that the plaintiff rode his bicycle on the "pedestrian pathway" when not authorised to do so.

11. I am not persuaded that in light of the answer to interrogatories the plaintiff does not have to prove that the pathway was a cycleway or designated dual pathway.  This was denied in the defence filed by the first defendant and it was specifically pleaded that the path was a "pedestrian pathway".  Accordingly, this is a matter which is still in issue between the plaintiff and the first defendant.  The plaintiff will not suffer any prejudice in having to prove this aspect of the case if the second defendant is allowed to make the proposed amendments.  I have taken into consideration that the amendment proposed is at a late stage and that the second defendant has filed no affidavit explaining why the amendment is to be made at this late stage.  On the other hand, counsel for the second defendant has not submitted any prejudice other than having to prove that the pathway was a designated cycleway.

12. Accordingly, I am of the view that the proposed amendments to the second defendant's re‑amended defence should be allowed.  Counsel for the plaintiff has prepared a minute of proposed orders.  I make orders pursuant to this minute with an additional order that the second defendant's proposed minute of re‑amended defence stand as the second defendant's re‑amended defence.

13. The second application is made by the third and fourth defendants and is to amend their defence to the plaintiff's statement of claim.  It appears from the pleadings that the third and fourth defendants entered into a contract with the first defendant pursuant to which they provided and fixed into position the wooden planks which intersected the surface of the pathway at the location where the accident occurred.

14. The proposed amendments by the third and fourth defendants are contained in pars 13 to 21 of the minute of amended defence.  These allegations are all pleaded in response to par 9(b) of the plaintiff's statement of claim.  This paragraph alleges that the plaintiff's accident was caused by the negligence of the third and fourth defendants and then provides in subpar (a) to (e) particulars of the third and fourth defendants' negligence.

15. The particulars of negligence are pleaded as material facts and not as particulars.  The particulars of negligence allege in summary that the third and fourth defendants, firstly, constructed the planks of the pathway in a manner which was unsafe and hazardous and not in accordance with the plans and specifications annexed to the agreement.  Secondly, the third and fourth defendants did not provide a safe alternative route around the planks and thirdly, they failed to inspect the pathway formed by the planks on a periodic basis.

16. On the pleadings as they stand at present, the third and fourth defendants have denied all the allegations in par 9(b) of the plaintiff's statement of claim.  It is not unusual that allegations of negligence or particulars of negligence are merely denied.  However, a defendant will not be entitled to lead evidence in support of his/her denial if that evidence raises an affirmative case or would come as a surprise to the plaintiff.

17. In the proposed amended paragraph the third and fourth defendants have pleaded in essence what they say the terms of the contract were between the first defendant and the third and fourth defendants and that they complied with this contract as well as with the plans and specifications annexed to the contract.  The third and fourth defendants have further pleaded that their contractual duties did not extend to providing an alternative safe route nor to examining the planks on a periodic basis.

18. The third and fourth defendants' task in pleading to the plaintiff's amended statement of claim has been made more difficult, because par 9(b) contains a rolled up plea of the scope of the third and fourth defendants' duty of care and the manner in which they breached the duty of care, namely, were negligent.  The plaintiff has not specifically pleaded what the third and fourth defendants' obligations were pursuant to their contract with the first defendant and what the extent of their duty of care was, arising from the contract or other relevant matters.  In proving the third and fourth defendants' duty of care, the plaintiff will have to rely on the terms of the contract between the first defendant and the third and fourth defendants and argue its interpretation of this contract.

19. What the third and fourth defendants have done in the proposed par 13(a) is to refer to the contract between the first defendant and the third and fourth defendants and to set out their interpretation of this contract and their obligations pursuant to it.  Counsel for the third and fourth defendants advised me from the bar table that the contract between the first defendant and the third and fourth defendants has been discovered.  The terms of and interpretation of this contract must have been a matter which the plaintiff knew it had to deal with from the start of this case.  The proposed amended par 13(a) does not raise any new allegations of fact.  It merely provides the third and fourth defendants' interpretation of their contract with the first defendant.

20. In pars 13(b) and 16 of the proposed amended defence, the third and fourth defendants plead that they fixed the planks into position in accordance with the contract and the plans and specifications.  These allegations would not have come as a surprise to the plaintiff as the third and fourth defendants deny in their existing defence that they failed to construct the planks in accordance with the plans and specifications.  The proposed paragraphs only spell out what the general denial implied in any event.

21. In pars 14, 15 and 17 of the proposed amended defence the third and fourth defendants plead that their contractual duties did not extend to creating an alternative safe route or to examining the planks on a periodic basis.  What they say, by implication, is that they did not have a duty of care which extended beyond the contractual duties arising from their contract with the first defendant.  The plaintiff already knew on the basis of the existing defence by the third and fourth defendants that they were denying that they failed to provide an alternative safe route or failed to inspect the planks by periodic examination.  It is implicit in this denial that the third and fourth defendants were alleging that they did not have a duty to do so.  It would have been a different matter if the third and fourth defendants alleged at this stage that they did provide an alternate route or that they did undertake regular inspections.  This would have been a new, affirmative matter that had been raised and may have come as a surprise to the plaintiff.  The only matter that has been added by the proposed amended defence is that the third and fourth defendants now say that their denial of a duty to provide an alternative safe route, or to conduct periodic examinations is based on the limit of their contractual duties arising from their contract with the first defendant.  This is not a matter which the plaintiff did not know to be relevant in the conduct of the trial.

22. Accordingly, I am of the view that the plaintiff has not been taken by surprise by the proposed new paragraphs 13 to 17 and I allow the third and fourth defendants to amend their defence accordingly.

23. The third and fourth defendants have pleaded in the proposed amended par 13(a) (which I have allowed) that the planks were not required to be and in fact were not seasoned.  It is not clear whether this statement is made on the basis that it is an interpretation of the contract between the first defendant and the third and fourth defendants, or whether it is based on some other written material or oral communication. Counsel for the plaintiff indicated during argument that the contract between the first defendant and the third and fourth defendants does not specifically deal with the question whether the planks were required to be seasoned.  Accordingly, I am of the view that this allegation is a matter in respect of which the plaintiff should have the opportunity to request further and better particulars.

24. The allegations pleaded in pars 18 to 21 of the proposed amended defence by the third and fourth defendants raise matters relevant to causation.  The third and fourth defendants plead that the plaintiff's alleged progression of spinal canal stenosis, low back condition and sexual dysfunction do not result from the accident but are "natural conditions", which would have affected the plaintiff regardless of the accident.

25. The plaintiff's counsel argued that the allegation that the plaintiff was suffering from spinal canal stenosis, low back problems and sexual dysfunction by way of a natural condition prior to the accident is a new allegation and should not be made at this late stage before the trial.  Counsel for the plaintiff conceded that the medical reports filed on behalf of the plaintiff have dealt with pre‑existing spinal canal stenosis.  Counsel for the third and fourth defendants further assured me from the bar table that the plaintiff's medical reports have also dealt with a pre‑existing lower back problem.  No affidavits have been filed in support of the application to amend and I have not seen the expert medical reports.  However, there does seem to be agreement between the counsel for the plaintiff and counsel for the third and fourth defendants that the medical reports have dealt with all three conditions as they exist at present and with the question to what extent they were caused by the accident.

26. The plaintiff was born on 3 August 1951 which makes him 53 years of age at present.  I understand the third and fourth defendants' reference to a "natural condition" to be a condition that naturally develops with age.  In light of the fact that medical reports have already been obtained in respect of the spinal canal stenosis, the lower back condition and the sexual dysfunction experienced by the plaintiff at present, I am not persuaded that it is not reasonable to expect the plaintiff's medical experts to comment prior to trial on the likelihood that a natural development of these conditions occurred in the plaintiff and may have caused or contributed to the plaintiff's current condition and symptoms.

27. In light of the plaintiff's age, the question whether these conditions may have been caused to some extent by the plaintiff's progression in age must have been a matter which the medical experts would have considered in any event.  This is not a matter in which it is alleged shortly prior to the trial that the plaintiff suffered from a pre‑existing condition which arose from a particular cause and not from natural progression caused by age.  In such a case the medical experts would be required to review the material relating to the pre‑existing condition particular to the plaintiff and to consider it in relation to their opinion expressed with regard to the plaintiff's current condition.  However, on the basis that it appears that the claim that the conditions have been a natural condition relate to the plaintiff's progression in age, I am not convinced that it is not possible, at this stage, for the plaintiff's experts to deal with these allegations.

28. Accordingly, I also allow the proposed amendments to the third and fourth defendants' defence in respect of pars 18 to 21.  I agree with the concern expressed by the plaintiff's counsel that it is not quite clear what is meant by a "natural condition" and whether this is definitely meant to reflect a condition resulting from the natural progression in age.  Accordingly, I allow the plaintiff the opportunity to request further and better particulars in respect of the proposed amendments.

29. I make orders pursuant to pars 1 to 5 of the third and fourth defendants' chamber summons for leave to amend defence to plaintiff's statement of claim filed on 19 May 2005.  I also make orders that the plaintiff have leave to file and serve a request for further and better particulars in respect of pars 13(a) and pars 18 to 21 of the third and fourth defendants' re-amended defence on or before 31 May 2005 and that the third and fourth defendants file and serve further and better particulars within 7 days of service of the request.