Toohey v Richard Crookes Constructions Pty Limited - [2023] NSWSC 805

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Toohey v Richard Crookes Constructions Pty Limited [2023] NSWSC 805
Hearing dates: 14 April 2023
Date of orders: 11 July 2023
Decision date: 11 July 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiff is granted leave to file and serve the proposed further amended statement of claim within 14 days
(2) The plaintiff is granted leave to rely on the report of Deborah Hall dated 15 September 2021 pursuant to s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)
(3) The second defendant is to pay the plaintiff’s costs

Catchwords:
CIVIL PROCEDURE – originating process – amendment – leave to rely on expert report – whether there is a material change between amended statement of claim and proposed amended statement of claim – no material change – leave granted to rely on expert report

Legislation Cited:
Civil Liability Act 2002 (NSW) s 64
Workers Compensation Act 1997 (NSW) ss 151A, 151D
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 254, 262, 315, 316 and 318

Cases Cited:
Hall v Ecoline Pty Ltd t/as Treetop Adventure Park [2018] NSWSC 1732
Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
Paper Coaters Pty Limited v Jessop [2009] NSWCA 1
Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452
Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna [2008] NSWCA 354
Witkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Category: Procedural rulings
Parties: Mark Anthony Toohey (Plaintiff)
Richard Crookes Constructions Pty Limited (First Defendant)
Lack Group Constructions Pty Ltd (Second Defendant)
Representation:
Counsel:
P Mooney SC (Plaintiff)
D O’Dowd (First Defendant)
S Flett (Second Defendant)
Solicitors:
Thurlows Compensation Lawyers (Plaintiff)
Kennedys Law (First Defendant)
HWL Ebsworth (Second Defendant)

File Number(s): 2020/177965

Judgment

By notice of motion dated 30 August 2022 the plaintiff seeks, firstly, leave to file and serve the proposed further amended statement of claim (‘ASC’), and secondly, the plaintiff be given leave to rely on the report of Deborah Hall dated 15 September 2021 (‘Hall Report’), pursuant to section 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘Wim Act’). The defendants oppose the first order sought. The second defendant opposes the second order sought.
The plaintiff is Mark Anthony Toohey. The first defendant is Richard Crookes Constructions Pty Ltd. The second defendant is Lack Group Constructions Pty Ltd. The parties relied on two volumes of Court Books, Ex 1 and Ex 2.

Background

Mr Mark Toohey is the plaintiff in a claim for damages for personal injury arising out an accident which occurred while performing work duties on 2 May 2018.
The plaintiff was born on [XX] July 1964 and is presently 58 years of age. At the time of the subject accident, he was 53 years of age.
As at the date of the accident the first defendant was engaged to perform construction work at premises identified as [XXX] Pemberton Street, Botany (‘the…

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: [2023] NSWSC 805
Decision Date: 11 July 2023

CaseChat Overview and Summary

The matter of Toohey v Richard Crookes Constructions Pty Limited involved a dispute between the plaintiff, Mr Toohey, and the defendant, Richard Crookes Constructions Pty Limited, pertaining to construction-related claims. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to amend his statement of claim to incorporate an expert report, which he intended to rely upon in his case. The primary legal issue before the court was whether the plaintiff's proposed amended statement of claim constituted a material change from the original statement of claim, and if not, whether leave should be granted to rely on the expert report.

The court considered the principles of civil procedure and the circumstances surrounding the amendment. The plaintiff argued that the expert report provided new information that warranted an amendment to his statement of claim. The defendant, on the other hand, contended that the proposed amendment did not introduce any new material facts or legal claims and that the amendment would not significantly alter the defendant's case. The court found that there was no material change between the amended statement of claim and the proposed amended statement of claim. Consequently, the court granted the plaintiff leave to rely on the expert report, considering that the amendment did not introduce any new material facts or legal claims and would not significantly prejudice the defendant.

In summary, the court held that the amendment to the statement of claim did not constitute a material change and granted leave for the plaintiff to rely on the expert report. The court's decision was based on the lack of significant alteration to the defendant's case and the absence of any new material facts or legal claims introduced by the amendment. The court's ruling allowed the plaintiff to proceed with the expert report in support of his claims against the defendant.

Orders