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…

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.

Keep reading for free

Create a free CaseChat account to read Wilson v Australian Capital Territory and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] ACTSC 287
Decision Date

CaseChat Overview and Summary

The plaintiff, Nathan Wilson, has filed a claim for damages for personal injury against the defendant, the Australian Capital Territory, arising from an incident where he tripped and fell on a displaced paver on a footpath in Gungahlin. The present application is the plaintiff's attempt to strike out certain parts of the defence filed by the defendant, arguing that they are inconsistent with an earlier admission of breach of duty of care and that the defence of contributory negligence is statutorily precluded.

The legal issues before the court were whether the defendant's pleading of contributory negligence was precluded by the statutory requirements and whether parts of the defence were inconsistent with the earlier admission of breach of duty of care. The plaintiff argued that the defendant's admission of breach of duty of care in a letter dated 12 September 2022 precluded the raising of contributory negligence as a defence. The plaintiff also contended that certain paragraphs of the defence were inconsistent with the admission of breach of duty of care.

The court found that the statutory provisions did not preclude the defendant from raising the defence of contributory negligence. The reasoning in Carr v Needham [2019] ACTSC 98 was followed, which held that the statutory provisions did not exclude the common law right of a defendant to raise a defence of contributory negligence once litigation was commenced. The court also determined that the defence of contributory negligence was not inconsistent with the admission of breach of duty of care, as the admission was narrow and did not preclude the defendant from denying broader aspects of the plaintiff's claim. The court concluded that the defendant was not precluded from raising the defence of contributory negligence for the first time in its defence and that the pleadings were not inconsistent with the admission of breach of duty of care.

The court dismissed the plaintiff's application and ordered that the costs of the application be costs in the cause. The reasoning was that the defendant's failure to raise contributory negligence in its notice under s 61 of the Civil Law (Wrongs) Act 2002 (ACT) was a substantial cause of the plaintiff bringing the application, even though the court had rejected the contention that the defendant was precluded from raising that defence. The court also found that it was not unreasonable for the plaintiff to seek to agitate the issue of inconsistency in the pleadings, given the lack of clarity in the correspondence between the parties prior to the bringing of the application.

Orders