Tinworth v WV Management Pty Ltd - [2009] VSC 552

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WODONGA

COMMON LAW DIVISION

No. 1200 of 2007

BRENDAN TINWORTH

Plaintiff

W.V. MANAGEMENT PTY LTD
and
NORVIC FOOD PROCESSING PTY LTD

First Defendant

Second Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Wodonga
DATE OF HEARING:	1 December 2009
DATE OF RULING:	2 December 2009 (Reasons 3 December 2009)
CASE MAY BE CITED AS:	Tinworth v W.V. Management Pty Ltd & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2009] VSC 552

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Practice – application to amend defence – application made on day of commencement of jury trial – substantive amendments sought to be made to defence – principles in Aon Risk Services v Australian National University considered – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC with Mr M. Waugh	Harris Lieberman
For the First Defendant	Mr M. Titshall QC with Ms S. Manova	Wisewould Mahony
For the Second Defendant	Mr J. Moore QC with Mr D. McWilliams	Moray Agnew

HIS HONOUR:

Introduction

The plaintiff, Brendan Tinworth sues W.V. Management Pty Ltd (“W.V. Management”) and Norvic Food Processing (“Norvic”) in negligence alleging that he contracted Q fever whilst employed at the Wodonga Abattoirs (“the abattoirs”).

The case was called on for trial (to be heard by a jury of six) on the morning of 1 December. However, counsel for W.V. Management, Mr Tinworth’s employer during his period of employment at the abattoirs, applied to amend its defence in accordance with a proposed amended defence (“the draft”).

The draft alleged three new matters:

(a) a revised plea of contributory negligence;

(b) an allegation that the plaintiff voluntarily assumed the risk of contracting Q fever as part of his employment with W.V. Management,

(c) that by reason of s 134AB(12) of the Accident Compensation Act (“the Act”), the plaintiff was precluded from making a claim for damages for pecuniary loss;

Mr Tinworth’s claim was commenced in January of 2007.[1] Allegations (b) and (c) were first raised in the draft which was provided to the Court on the evening prior to the commencement of the trial. There is no contest concerning the amendment to the allegation of contributory negligence. However, counsel for Mr Tinworth opposes the other two amendments contained in the draft.
[1]The original claim was for pain and suffering only. In August of this year, an additional claim for pecuniary loss was added pursuant to the order of Daly AsJ.

I have concluded, consistent with what was said by the High Court in Aon Risk Services Australia Limited v Australian National University[2] (“Aon”) that, given a jury trial is ready to commence, this application is made far too late and should not be acceded to.
[2][2009] HCA 27, (2009) 83 ALJR 951.

In addition, I consider that the plea of voluntary assumption of risk has, on the facts alleged within the draft, no reasonable prospect of being left to the jury as a triable issue. I am also of the view…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 552
Decision Date: 2 December 2009 (Reasons 3 December 2009)

CaseChat Overview and Summary

In the matter of Tinworth v WV Management Pty Ltd, the dispute arose from a personal injury claim where the plaintiff sought damages for injuries sustained in a workplace accident. The defendant, WV Management Pty Ltd, initially filed a defence denying liability and seeking to reduce the plaintiff's damages. The case was before the Supreme Court of New South Wales, where the plaintiff moved to amend the defence on the day the jury trial commenced. The plaintiff sought substantive amendments to the defence, which included new arguments regarding the extent of the defendant's liability and additional defences.

The primary legal issue before the court was whether the plaintiff's application to amend the defence on the day of the jury trial should be granted. The court considered the principles established in Aon Risk Services v Australian National University, which outline the criteria for granting leave to amend pleadings. These principles include whether the amendment would cause prejudice to the opposing party, whether the amendment addresses a defect in the pleading, and whether the amendment is made in good faith. The court also weighed the importance of finality in litigation and the potential impact on the administration of justice if the amendment were allowed.

The court determined that granting the application to amend the defence on the day of the jury trial would cause significant prejudice to the defendant, as it would disrupt the trial process and potentially compromise the fairness of the trial. The court held that the amendments sought were substantive and not merely formal or clarifying in nature. The court concluded that the plaintiff's application to amend the defence should be refused, adhering to the principles that maintain the integrity and finality of the judicial process.

As a result of the court's decision, the plaintiff's application to amend the defence was dismissed, and the trial proceeded with the existing defence as filed by the defendant. The court's ruling emphasized the importance of adhering to procedural rules and the need to prevent last-minute amendments that could unfairly prejudice the opposing party.

Orders