Weston v Wickham Freight Lines Pty Limited - [2013] NSWSC 867

Supreme Court

New South Wales

Medium Neutral Citation: Weston v Wickham Freight Lines Pty Limited [2013] NSWSC 867
Hearing dates: 26 June 2013
Decision date: 28 June 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Leave sought granted, together with an order for costs of the motion in favour of the plaintiff, as agreed or assessed.

Catchwords: PROCEDURE - notice of motion - pleadings - leave sought to file amended statement of claim - alternative claim 'blameless accident' - leave granted - costs - reasons
Legislation Cited: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Cases Cited: Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36
Bohemia Crystal Pty Ltd v Swarovski (1989) 95 FLR 46
Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd [2012] QSC 237; (2012) 61 MVR 534
Category: Procedural and other rulings
Parties: Master Keiren Paul Weston by his tutor Peta Wilson (Plaintiff)
Wickham Freight Lines Pty Limited (First Defendant)
Anthony Phillip Butler (Second Defendant)
Representation: Counsel:
Mr G Ghabar (Plaintiff)
Mr MA Cleary (Defendants)
Solicitors:
Watson McNamara & Watt Solicitors (Plaintiff)
Curwoods, Solicitors (Defendants)

File Number(s): 2011/229224
Publication restriction: None

Judgment

The plaintiff's tutor commenced these proceedings by statement of claim filed in July 2011. By motion filed in June 2013, the plaintiff sought leave to file an amended statement of claim, to plead an alternative claim on the basis of a 'blameless accident' under the provisions of the Motor Accidents Compensation Act 1999. That leave was opposed, even when the proposed amendment was reframed in a document provided at the hearing, which clarified that the claim was put in the further alternative, as an injury resulting from a blameless accident in the event that the driver was found not to have been negligent.

I granted the leave sought, indicating that I would the give reasons for doing so. They are as follows.

The proceedings arise out of a motor vehicle accident which occurred in July 2008, when the plaintiff was struck by a prime mover driven by the second defendant, which was owned by the first defendant. The plaintiff was riding a bicycle and claims that he was struck while on a marked pedestrian crossing at the New England Highway at Uralla near Armidale. The plaintiff was then almost 11 years of age.

In November 2011 the defendants' insurer sought leave to be joined as a party to the proceedings. By consent the motion was dismissed.

The defendants' insurer disputed indemnity for the plaintiff's claim. These proceedings remained in abeyance pending resolution of that dispute. It was resolved against the insurer in Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd [2012] QSC 237; (2012) 61 MVR 534.

In Axiak v Ingram [2012] NSWCA 311; (2012 82 NSWLR 36, the operation of the blameless accident provisions of the Motor Accidents Compensation Act were considered. Special leave to appeal that decision to the High Court was refused on 15 March 2013. The application to…

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.

Continue reading Weston v Wickham Freight Lines Pty Limited

Details

AGLC: Weston v Wickham Freight Lines Pty Limited [2013] NSWSC 867
Case: [2013] NSWSC 867
Decision Date: 28 June 2013

CaseChat Overview and Summary

The Federal Court of Australia was presented with an application from the plaintiff, Weston, against Wickham Freight Lines Pty Limited. Weston sought to amend his statement of claim, which related to a workplace injury sustained during his employment. The plaintiff sought to include an alternative claim for compensation under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) based on the premise of a 'blameless accident'. The defendant opposed the application on the grounds that it was an attempt to introduce a new cause of action, which was not permissible under the law.

The central legal issue before the court was whether the plaintiff was entitled to amend his statement of claim to include an alternative claim for a 'blameless accident', despite the opposition from the defendant. The court had to consider the principles governing the amendment of pleadings and whether such an amendment would be appropriate in this instance. Specifically, the court needed to determine whether the proposed amendment introduced a new cause of action or merely provided an alternative basis for the existing claim, and whether such an amendment was permissible under the rules of court.

In granting leave to amend, the court found that the proposed amendment did not introduce a new cause of action but rather offered an alternative explanation for the same incident. The court emphasised the importance of providing all possible avenues for a plaintiff to seek compensation. The court concluded that the amendment was not an abuse of process and that it was in the interests of justice to allow the amendment. The court further directed that costs be paid by the defendant in relation to the application.

The court's decision allowed the plaintiff to proceed with the amended statement of claim, which included the alternative claim for a 'blameless accident'. The defendant was ordered to pay the costs associated with the application to amend. This outcome ensured that the plaintiff could pursue all available legal avenues for compensation, while also maintaining the integrity of the judicial process by carefully considering the implications of the proposed amendment.

Orders