Wilson v Australian Capital Territory
[2023] ACTSC 287
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Wilson v Australian Capital Territory |
Citation: | [2023] ACTSC 287 |
Hearing Date: | 13 October 2023 |
Decision Date: | 13 October 2023 |
Before: | Mossop J |
Decision: | 1. The application in proceeding dated 26 September 2023 is dismissed. 2. The costs of the application are costs in the cause. |
Catchwords: | PRACTICE AND PROCEDURE – PLEADINGS – Application to strike out parts of defence – personal injury – claim against government arising from trip and fall on footpath – where defendant made admission of breach of duty of care – plaintiff claims it is not open for defendant to plead contributory negligence – consideration of s 61 Civil Law (Wrongs) Act 2002 (ACT) – the Act does not exclude defendant’s common law right to raise defence of contributory negligence – admission does not preclude defendant from relying on this defence – application dismissed PRACTICE AND PROCEDURE – PLEADINGS – Application to strike out parts of defence – personal injury – claim against government arising from trip and fall on footpath – where defendant made admission of breach of duty of care – plaintiff claims that defence is inconsistent with admission – defendant’s admission concerned narrow breach of duty – defence denied aspects of plaintiff’s broader claim – pleadings not inconsistent with defendant’s admission of breach – application dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 43(1), 51, 61, 62, Pts 4.2, 5.2 Court Procedures Rules 2006 (ACT), r 425 Motor Accidents Compensation Act 1999 (NSW), s 81 Road Transport (Third-Party Insurance) Act 2008 (ACT), s 97 |
Cases Cited: | Barker v Gifford [2005] ACTSC 55 Carr v Needham [2019] ACTSC 98 |
Parties: | Nathan Wilson (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel D Richards (Plaintiff) B Jones (Defendant) |
| Solicitors United Legal (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 256 of 2023 |
MOSSOP J:
Introduction
The plaintiff has claimed damages for personal injury against the defendant arising out of tripping on a paver located on the footpath of Gungahlin Place in Gungahlin. The present application is an application made by the plaintiff to strike out aspects of the defence pleaded by the defendant. The plaintiff principally relies upon r 425 of the Court Procedures Rules 2006 (ACT). The essential contentions made by the plaintiff are that aspects of the pleading are internally inconsistent and hence embarrassing and that it is not open for the defendant to plead contributory negligence in the circumstances.
Chronology
The trip and fall is alleged to have occurred on 20 May 2021.
On 8 June 2021, the plaintiff served a personal injury claim notification form pursuant to s 51 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act).
By letter dated 12 September 2022, the defendant made an admission of breach of duty of care. The terms of that admission were as follows:
Pursuant to the respondent’s obligations under section 61(1)(b) of the Civil Law (Wrongs) Act 2002 (“the Act”) I am instructed that the Territory admits breach of duty of care in relation to the failure to rectify the displaced pavers at the incident site, namely the plaza at Gungahlin Place near Gungahlin Anytime Fitness, on or around 20 May 2021.
On 28 June 2023, the plaintiff filed his Originating Claim and Statement of Claim in the Supreme Court.
On 23 August 2023, the plaintiff’s solicitor wrote to the defendant’s solicitor providing further and better particulars and included the following:
I refer to the first directions hearing in this matter which took place on Monday, 21 August 2023. I also refer to our conversation before Court where you indicated that it was not your client’s intention to revisit the admission of breach of duty of care articulated by letter dated 12 September 2022.
The plaintiff intends to reserve his position in relation to a strike out application of your client’s defence in the event that your client seeks to deviate from that admission. On that basis, we provide further and better particulars below.
On 4 September 2023, the defendant filed a defence. Paragraph 6 of the defence refers to the letter dated 12 September 2022 and repeats the admission of breach of duty of care. However, it also denies that the defendant breached its duty of care by taking certain precautions identified by the plaintiff and raises a defence of contributory negligence.
Relevant statutory provisions
Section 61 of the CLW Act provides:
Respondent must attempt to resolve claim
(1)A respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 6 months after the day the respondent receives a complying notice of claim)—
…
(b)give the claimant written notice stating—
(i) whether liability is admitted or denied; and
(ii) if contributory negligence is claimed—the degree of the contributory negligence expressed as a percentage; and
…
…
(5)An admission of liability by a respondent under this section—
(a)is not binding on the respondent in relation to any other claim; and
(b)is not binding on the respondent at all if it later appears the admission was induced by fraud.
The consequences of non-compliance with the provisions of Pt 5.2 of the CLW Act, which includes s 61, are set out in s 62 of the Act. That provides:
Consequences of noncompliance with pt 5.2
(1)If a claimant does not comply with the requirements of this part, a court in which the claimant begins a proceeding based on the claim—
(a)may, on a respondent's application in the proceeding, award in the respondent's favour costs (including legal and investigation costs) reasonably incurred by the respondent because of the claimant's noncompliance; and
(b)may only award interest in the claimant's favour for a period for which the claimant was in noncompliance if the court is satisfied there is a reasonable excuse for the noncompliance.
(2)If a respondent does not comply with the requirements of this part, a court in which the respondent defends a proceeding based on the claim may, on a claimant's application in the proceeding, award in the claimant's favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent's noncompliance.
Contributory negligence
It is convenient to first deal with the contention that the pleading of contributory negligence is statutorily precluded as a result of an implication derived from s 61(5). The substance of the submission made on behalf of the plaintiff was that the statement by the legislature in s 61(5) of the circumstances in which an admission of liability is not binding upon a respondent to a claim, indicates that parliament intended admissions of liability to be binding in relation to the claim for which they were made unless the admission was induced by fraud.
The plaintiff relied upon the decision in Barker v Gifford [2005] ACTSC 55 for the proposition that the admission of breach of duty of care in that case was not inconsistent with some degree of contributory negligence. The plaintiff submitted that unlike the statutory provision there in question (s 81 of the Motor Accidents Compensation Act 1999 (NSW)), s 61 requires a respondent to provide a claimant with notice of the percentage of contributory negligence if this is claimed. Therefore, it was submitted, there was a stronger argument for reading s 61 as excluding a subsequent claim for contributory negligence.
The plaintiff submitted that the pleading of contributory negligence in paragraph 15 of the defence was precluded by the implied admission that contributory negligence was not raised pursuant to s 61 of the CLW Act. The plaintiff also submitted that other paragraphs which appeared to raise matters relevant to a defence of contributory negligence (paragraphs 4(c), 5(c) and 7(c)) should also be struck out.
The defendant relied upon the decision of McWilliam AsJ in Carr v Needham [2019] ACTSC 98. That decision involved the provisions of the Road Transport (Third-Party Insurance) Act 2008 (ACT) which were in relevantly similar terms to s 61. They required the insurer to tell the claimant in writing whether liability was admitted or denied and “if contributory negligence is claimed—the degree of the contributory negligence expressed as a percentage”: s 97(1). Further, s 97(4) was in the same terms as s 61(5) of the CLW Act. McWilliam AsJ addressed the argument that the statutory provision had the effect of precluding departure from an implied admission that contributory negligence would not be alleged. Her Honour, at [19]-[35], considered the authorities in other jurisdictions and at [35] concluded:
Applying the reasoning of Till [Till v Nominal Defendant [1999] QCA 490; [2002] Qd R 676] and Gabriel [Nominal Defendant v Gabriel [2007] NSWCA 52; 71 NSWLR 150], in the absence of unequivocal language, I would not construe the Act as excluding the common law right of a defendant to raise a defence of contributory negligence once litigation is commenced, despite not having raised the issue at any stage prior to the litigation.
I consider that the conclusion reached in Carr is not clearly wrong and that the similarity of the statutory provisions is such that the reasoning is applicable in the present case. I consider, therefore, that the decision in Carr should be followed and, as a result, the plaintiff’s contention that the terms of s 61 precluded the defendant from pleading contributory negligence must be rejected.
Having rejected that contention, I also reject the submission that the defendant was otherwise precluded from raising the issue of contributory negligence for the first time in its defence. While I accept the submission that there was no evidence put forward by the defendant that provided an explanation for its failure to refer to contributory negligence in its letter admitting breach of duty, the case is different from a case such as Carr in which a defence had been filed in the proceedings which did not plead contributory negligence. Rather, contributory negligence was pleaded as soon as possible to do so within the present proceedings.
I do not consider that the letter sent by the solicitor for the plaintiff on 23 August 2023 (some 12 days prior to the filing of the defence) which refers to a conversation in which the solicitor for the defendant said that the defendant did not intend to revisit “the admission of breach of duty of care” articulated in the letter dated 12 September 2022 somehow (by estoppel, an election, contract or otherwise) precluded the defendant from raising the issue of contributory negligence. Nor do I consider that the existence of the letter of 12 September 2022, by itself, was a matter which precluded the raising of that defence.
Inconsistent pleadings
The other contention of the plaintiff is that the admission of breach of duty was inconsistent with the denial of certain aspects of the plaintiff’s pleadings. This aspect of the plaintiff’s submissions focused upon paragraphs 5(a), 5(b) and 5(d) of the defence. The ultimate contention was that these paragraphs were inconsistent with the admission of a breach of duty of care that was maintained in paragraph 6 of the defence.
The position of the defendant was that the admission of breach of duty of care was a narrow one and that the pleadings which were objected to were pleadings which denied the broader claim made by the plaintiff, but were not inconsistent with the narrow breach of duty which was admitted.
Paragraphs 3-6 of the Statement of Claim provided:
3. The Defendant’s Duty of Care
3.1.At all material times, the Defendant owed a duty of care to the Plaintiff as occupier of the paved area to take reasonable precautions to ensure that the Plaintiff did not suffer injury as a result of the state of the paved area.
3.2.At all material times, the Defendant owed a duty of care to the Plaintiff, as occupier of the paved area, to take reasonable precautions to ensure that the Plaintiff did not suffer an injury as a result of walking on the paved area.
3.3.At all material times, the Defendant owed a duty of care to the Plaintiff, as occupier of the paved area, to take reasonable precautions to ensure that the Plaintiff did not suffer an injury as a result of a paver moving while the Plaintiff was walking on the paver.
3.4.At all material times, the Defendant owed a duty of care to the Plaintiff to take reasonable precautions to ensure that the Plaintiff did not suffer and [sic] injury as a result of walking on the paved area which required maintenance and repair.
4. The Risk of Harm to be Addressed by the Defendant
4.1.The risk of harm to be considered by the Defendant was the risk of harm to the Plaintiff of suffering an injury from walking on the paved area and tripping or falling if pavers on the paved area moved.
5. Breach of Duty of Care and Failure to Take Reasonable Precautions
5.1. The risk of harm to be addressed by the Defendant was:
5.1.1. Foreseeable;
5.1.2. Not insignificant; and
5.1.3.Such that, in the circumstances, any reasonable person in the position of the Defendant would have taken reasonable precautions to reduce the risk of harm.
5.2. The Defendant failed to take reasonable precautions including:
5.2.1.The precaution of maintaining the pavers in the paved area to prevent the paver from moving creating a trip hazard for the persons, including the Plaintiff, walking on the paved area.
5.2.2.The precaution of repairing the moving paver in the paved area, to prevent the paver from moving and creating a trip hazard for persons, including the Plaintiff, walking on the paved area.
5.2.3.The precaution of maintaining or installing reasonable lighting to ensure that persons could walk safely on the paved area when the Defendant knew or ought to have known that some of the pavers would move when walked on.
5.2.4.The precaution of warning persons who were walking on the paved area that a paver, or pavers in the paced [sic] area, may move causing the person to trip and fall.
5.2.5.The precaution of barricading the paved area, and or preventing persons from walking on the paved area, to prevent persons from tripping and falling on a moving paver.
6. Admission of Breach of Duty of Care
6.1.On 12 September 2022 the Defendant admitted a breach of duty of care in relation to the failure to rectify the displaced pavers.
Particulars
6.1.1.Letter from Australian Capital Territory Government Solicitor dated 12 September 2022
Paragraphs 4-6 of the defence provided:
4.In relation to the allegations in paragraph 3 and 4 (including its subparagraphs 3.1 to 3.4 and 4.1) of the Claim, the Defendant:
a.admits that it owed the Plaintiff a duty of care; and,
b.the scope and content of the duty of care owed is to be determined in accordance with the provisions of the Civil Law (Wrongs) Act 2002 (ACT)
c.the relevant risk of harm was the risk of harm to pedestrians exercising reasonable care for their own safety of suffering injury from walking in the area.
5.In response to the allegations in paragraph 5 (including its subparagraphs 5.1 and 5.2) of the Claim, the Defendant says:
a.there was a minor irregularity in the surface of the road;
b.the irregularity was of a type frequently encountered by pedestrians;
c.the irregularity was not a hazard to persons exercising reasonable care for their own safety observing where they are walking and avoiding obvious risks; and
d.otherwise denies the allegations made in the paragraph and subparagraphs, subject to the admissions referred to in the following paragraph.
6.In response to the allegations in paragraph 6 of the claim, the Defendant says that in a letter from the ACT Government Solicitor to United Legal dated 12 September 2022 it made the following admissions:
Pursuant to the respondent’s obligations under section 61 (1) (b) of the Civil Law (Wrongs) Act 2002 (‘the Act’) I am instructed that the Territory admits breach of duty of care in relation to the failure to rectify the displaced pavers at the incident site, namely the plaza at Gungahlin Place near Gungahlin Anytime Fitness, on or around 20 May 2021.
The objected-to pleadings are in paragraph 5, which is responding to the allegation of breach of duty of care and failure to take reasonable precautions in paragraph 5 of the claim.
Paragraph 5.1 addresses matters which a court must consider pursuant to s 43(1) of the CLW Act. Paragraph 5.2 is a non-exclusive list of what are said to be reasonable precautions. Paragraph 5 of the defence addresses, in a rolled up fashion, both paragraphs 5.1 and 5.2 of the claim. Paragraph 5 of the defence is, in substance, a denial of the allegations in paragraphs 5.1 and 5.2 (see paragraph 5(d)) subject to the admission referred to in paragraph 6 and the pleading of the other facts in paragraphs 5(a), 5(b) and 5(c).
Insofar as the plaintiff’s case is broader than what was admitted by the defendant, it is clearly open to the defendant to deny those broader aspects of the plaintiff’s case. That is undoubtedly the case in relation to paragraphs 5.2.1, 5.2.3, 5.2.4 and 5.2.5. Those paragraphs are broader than what is admitted because they allege an obligation to maintain the pavers so that no paver may move, install reasonable lighting, warn persons walking on the paved area or construct a barricade. The position in relation to paragraph 5.2.2 is somewhat different, because what is alleged in that paragraph is very similar to what is admitted in paragraph 6: “repairing the moving paver in the paved area, to prevent the paver from moving” versus “rectify the displaced pavers at the incident site”. Although it may be theoretically possible that there is a difference between the language of 5.2.2 of the claim and paragraph 6 of the defence, no practical difference was pointed out in the submissions. However, the defendant submitted that the pleading in response to paragraphs 5.1 and 5.2 must be understood in the context of the duty of care pleaded by the plaintiff in paragraph 3 of the claim and the risk of harm in paragraph 4 of the claim. As a consequence, it was open to the defendant to deny the factual allegations in the paragraph, including paragraph 5.2.2.
Having regard to the difference between the parties as to how the relevant risk of harm should be articulated (compare paragraph 4.1 of the claim with paragraph 4(c) of the defence and the link within paragraph 5 between the “risk of harm” in paragraph 5.1 and the “reasonable precautions” in paragraphs 5.1.3 and 5.2), it was open to the defendant to deny paragraph 5.2.2 while maintaining the admission that it earlier made. It must be noted that the admission made earlier was in general terms and not responsive to specific allegations formulated by reference to the provisions of Pt 4.2 of the CLW Act.
The end result is that, notwithstanding the earlier admission, the plaintiff is being put to proof on the substance of the case that he wishes to run. The effect of permitting the denial of paragraph 5.2.2 to stand is to largely deny any effect to the admission earlier made. However, having regard to my conclusion in relation to contributory negligence earlier in these reasons, that is not precluded by the terms of the statute.
I observe that the effect of pleading in detail the matters addressed in the applicable provisions of Pt 4.2 of the CLW Act and the carefully constructed contest over the formulation of the risk and duty has resulted in a complex construct which is difficult to analyse for practical forensic purposes. That is a consequence of the significant statutory provisions, the desire to plead a claim in a way that addresses the requirements of those provisions and the particular forensic stance adopted by the defendant. It is not one for which the parties may be subject to significant criticism, even if the end result is not a useful one.
The remaining paragraphs which are challenged are 5(a) and 5(b). The allegations that there was a minor irregularity in the surface of the road and the irregularity was of a type frequently encountered by pedestrians do not appear to relate to the allegations in paragraphs 5.1.1 and 5.1.2. However, they do address the allegations in paragraphs 5.1.3 and 5.2 insofar as they would be relevant to the reasonableness of the more significant precautions alleged in the various subparagraphs of paragraph 5.2 such as installing lighting, warnings or barricades. They therefore should not be struck out.
Costs
For the reasons I have given, the application in proceeding will be dismissed. I will hear the parties as to costs.
[The parties were heard as to costs]
The consequences of a failure to comply with the requirements of Pt 5.2 of the CLW Act are set out in s 62 of the Act. Where there is non-compliance by a respondent, s 62(2) indicates that the remedy is one of costs which may extend beyond legal costs to investigation costs. In the present case, the raising of contributory negligence in the defence, when that was not raised in the notice given under s 61, was a substantial cause of the plaintiff bringing the present application. Although I have rejected the contention that the defendant is precluded from raising contributory negligence, the issue only arose because of the unexplained difference in approach between that taken when responding to the notice of claim and that taken after the proceedings were commenced.
So far as the claim of inconsistency is concerned, although I have declined to strike out the defendant’s defence, the subtlety of the defence in the context of the pleadings was an issue which it was not unreasonable for the plaintiff to wish to agitate. The correspondence between the parties prior to the bringing of the application was not such as to really make clear in a practical way how the plaintiff should proceed. In those circumstances, I consider that the appropriate costs order is that the costs of the application be costs in the cause.
Orders
The orders of the Court are:
1.The application in proceeding dated 26 September 2023 is dismissed.
2.The costs of the application are costs in the cause.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 October 2023 |
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