District Court New South Wales Medium Neutral Citation: Ku v Woolworths Group Limited [2020] NSWDC 506 Hearing dates: 4 September 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 41-42 Catchwords: PRACTICE AND PROCEDURE – civil proceeding – plaintiff's application to strike out certain paragraphs of the Defence and alternatively, for further and better particulars of the Defence – whether impugned parts of Defence contained positive statements of fact – whether contributory negligence defence properly pleaded and particularised Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Uniform Civil Procedure Rules 2005 (NSW), rr 14.16, 14.18, 14.28, 15.1, 15.5 Cases Cited: Strong v Woolworths Ltd (2012) 246 CLR 182 Texts Cited: Bullen, Leake and Jacob, Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed, 1975 Ritchie's Uniform Civil Procedure New South Wales, LexisNexis Category: Principal judgment Parties: Ms M S Ku (Plaintiff/Applicant) Woolworths Group Limited (Defendant/Respondent) Representation: Counsel: Mr J Thompson for the plaintiff/applicant Mr R Perla for the defendant/respondent Solicitors: AJB Stevens Lawyers for the plaintiff/applicant HBA Legal for the defendant/respondent File Number(s): 2019/359711 Publication restriction: Nil Judgment BACKGROUND 1. This is a 'slip and fall' occupier's liability case in which the plaintiff claims damages from the defendant for personal injuries. The fall allegedly occurred at the Woolworths store in Eastwood on 17 November 2016 at 8:00pm. It is said that the plaintiff slipped on water on the floor which was sourced from a refrigeration unit located on the corner of an aisle. 2. The proceeding commenced on 15 November 2019. The Statement of Particulars identifies alleged injuries to the plaintiff's neck, back, left shoulder and right knee and also an Adjustment Disorder, with associated disabilities. 3. The current interlocutory dispute arises from parts of the defendant's Defence, filed on 1 May 2020. I now turn to identifying, in a summary fashion, the relevant parts. 4. The defendant admitted that a duty of care was owed to the plaintiff but said (at paragraph 12) that the scope of the defendant's duty did not extend to harm caused to the plaintiff. 5. The defendant contested that such duty was breached. Specifically, the defendant pleaded that there was no risk of foreseeable harm or, if there was, the risk was insignificant (paragraph 9). It also contended that a reasonable person would not have taken the precautions alleged by the plaintiff, and/or that they would have been prohibitive (paragraph 10). 6. The defendant also denied that that any such breach caused the plaintiff personal injuries. Specifically, the defendant said that the precautions were not a necessary condition of harm to the plaintiff (paragraph 11). 7. It also says relies upon provisions in the Civil Liability Act 2002 (NSW) to contend that injuries from the accident were the manifestation of an obvious risk. It also pleads contributory negligence. One of the particulars to that defence was that the plaintiff failed to observe the presence of a hazard (particular (c) to paragraph 15). 8. The defendant also put in issue whether, on the assumption that she suffered personal injuries from the breach, she would be entitled to damages for non-economic loss (paragraph 19). 9. On 11 May 2020, the plaintiff requested what the plaintiff's solicitor described as "further and better particulars" of the parts of the Defence I have described with specific paragraph references. 10. The next day, the solicitor for the defendant sent an email to the plaintiff's solicitor containing the following concession: "If the floor did not have any anti-slip tiles and was in fact contaminated as alleged, which is not admitted, in the manner alleged, which is also not admitted, then the defendant concedes that the floor would have been slippery." 1. On 5 June 2020, the defendant's solicitor responded to the plaintiff's request for particulars made on 11 May 2020. I think it is fair to say that, with the exception of its response on the particular of contributory negligence to which its attention had been drawn (the particular to 15(a) of the Defence), very little new information was furnished. Thereafter, the parties engaged in disputation as to the adequacy of the defendant's solicitors' response. 2. On 16 July 2020, the plaintiff filed a notice of motion. It seeks to strike out parts of the defendant's Defence or, alternatively, have more adequate answers supplied to the plaintiff's requests for particulars concerning paragraphs 9, 10, 11, 12, 15(c) and 19 of its Defence. 3. Subsequent to the plaintiff filing the motion, on 23 July 2020, the defendant's solicitor provided further information concerning these paragraphs. In essence, in respect to each of these paragraphs, it maintained its position that what was truly sought by the plaintiff were matters for evidence. In relation to paragraph 19 of its Defence, however, the defendant's solicitor indicated that it did not press the content of that paragraph, although it did not concede any entitlement in the plaintiff to recover non-economic loss. 4. In support of its application, the plaintiff relied upon the affidavit of its solicitor, Mr El-Jradi sworn on 16 July 2020. Its Counsel also supplied the Court with written submissions, which I have considered. The defendant relied upon an affidavit from its solicitor, Mr Perrein, affirmed on 31 July 2020. CONSIDERATION The strike out application 1. For reasons to be dealt with later, I consider that there are concerns about paragraph 19 of the Defence. 2. In relation to paragraph 9 of the Defence, the plaintiff contends that there is some inconsistency of pleading between the defendant not admitting certain facts (that the plaintiff slipped and fell on water emanating from a refrigeration unit where the water had pooled in an area) and its denial that a leaking refrigeration unit constituted a foreseeable and not insignificant risk of harm. I do not see any internal inconsistency. Even if there was, it would not warrant the striking out of the Defence. There is no difference in effect between a statement of denial and a statement of non-admission – as has been commented, sometimes the distinction is a matter of emphasis (Bullen, Leake and Jacob, Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed, 1975, p 80). I do not agree that that r 14.18 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') is engaged: the inconsistency between a non-admission and a denial does not arise from the defendant pleading or raising any factual allegation. 3. In relation to paragraph 10, the plaintiff also raises an inconsistency between an admission of a duty of care and a denial that a reasonable person in the defendant's position would have taken the precautions. There is no inconsistency. The plaintiff's submission conflates the issues of the scope of the duty of care and breach. The defendant later in its pleading separately noted that the scope of the duty was also relevant to the second limb of the test for causation under s 5D of the Civil Liability Act. 4. The plaintiff also engages in argument as to how the defendant could "realistically" contend that the putative precautions raised by the plaintiff could have been 'prohibitive'. It does so by reference to statements of principle of duties of care in earlier authorities. But whatever principles apply, the defendant is not to be denied the capacity to defend its position by reference to contested facts. An order for strike out is not to be made except in plain and obvious cases. 5. The plaintiff then contends that the defendant should be precluded from raising issues concerning causation. The plaintiff says it 'presumes' that the defendant's position is that there was no factual causation because of its position that there was no breach. A party's presumption about another's pleading does not offer a promising basis for strike out applications. At any rate, the argument again conflates distinct conceptual issues of breach and causation. I note further that in occupier's liability, it is notoriously the case that issues of factual causation may be complex: see for example, Strong v Woolworths Ltd (2012) 246 CLR 182. To the extent that attempt is made to strike out paragraph 12 on the issue of the 'scope of duty' requirement for causation, again, as earlier indicated, the issue will turn upon facts concerning the scope of the duty of care. It is not appropriate to curtail a line of factual inquiry by a strike out order. 6. The plaintiff then applies to strike out the part of the contributory negligence defence concerning the plaintiff's own alleged failure to observe the presence of a hazard. This is posited on the defendant's inconsistency in earlier not admitting the existence of a hazard. Logically, however, there is no inconsistency. By not admitting the hazard, the defendant has put the plaintiff to proof of the existence of the hazard. By raising the relevant particular of the contributory negligence defence, the defendant is saying, in effect, that if the plaintiff proves that there was a hazard, then the plaintiff should actually or reasonably have seen it, and avoided it. In this regard, this particular is pleaded as a factual contingency. The defendant is entitled to raise this matter. 7. Contrary to the plaintiff's submissions, there is nothing embarrassing about the way that the defendant's case is articulated in its Defence. Subject to what I say in relation to the request for particulars below and the addition of superfluous matters, the defendant's statement of its defence essentially accords with a conventional response of a defendant in an occupier liability case. 8. Subject to what I say about paragraph 19 below, the application for strike out is rejected. The application for further and better particulars 1. Whether there is any requirement for the defendant to supply further information to the plaintiff about its Defence by the provision of further and better particulars was the principal subject of voluminous correspondence exchanged between the parties' respective solicitors. In that correspondence, the solicitors set out their respective understanding of the function of the provision for particulars and parties' case-management obligations. 2. It is not, in my view, necessary to expound upon the principles at any length. It suffices to say that they are intended to complement the facts that are pleaded so as to enable the parties to identify the scope of the evidence which is to be led at the trial and, by so doing, prevent surprise to the other party (see the authorities collected in Ritchie's Uniform Civil Procedure New South Wales [15.1.10]). But it is to be noted that what a pleader must provide is "necessary" particulars in order to enable the other party to identify the case which it is required to meet: r 15.1(1) of the UCPR. 3. A notable feature of the requests for particulars is that, with the exception of the request for further and better particulars of one of the particulars to the contributory negligence defence, all of the requests concern paragraphs that relate to issues upon which the plaintiff bears the onus of proof; namely: duty of care; breach and causation; and one head of damage. 4. Another curiosity in the current dispute is that in virtually all cases, the requests for particulars are made in relation to the sentences in the relevant paragraphs of the Defence which followed statements of denial. To take paragraph 9 of the Defence as an illustration for the point: paragraph 9 is a composite denial of paragraphs 8-10 (inclusive) of the statement of claim which asserted part of the plaintiff's contentions on breach of duty: i.e., in substance, that the defendant created a foreseeable and not insignificant risk of harm that customers might slip and fall on water leaking from the refrigeration unit. 5. When reading the first sentence of paragraph 9 of the Defence, it is plain that the defendant denies this (composite) allegation. Had it done no more than that, there would be no occasion for the plaintiff to ask any questions as to what the defendant's position was as to whether or not a leaking refrigeration unit created a foreseeable and not insignificant risk of harm. 6. But in the second sentence of paragraph 9, the defendant went further and positively asserted that there was no risk of foreseeable risk of harm and/or that it was not insignificant. 7. Read fairly, however, by this second sentence of paragraph 9, read with the first sentence of that paragraph, in substance, the defendant was doing no more than emphasising its position expressed in the first sentence of paragraph 9. It was not seeking to introduce any new affirmative allegation, at least in the sense of raising a factual matter which might have falsified or invalidated the plaintiff's articulation of the risk of harm. There is no doubt, on the face of paragraph 9, about the true nature of the denial. 8. But the plaintiff appears to have interpreted paragraph 9 in the Defence, and the other paragraphs about which it complains, in terms of the adequacy of information supplied, as amounting to positive statements of fact which the defendant is making without disclosing what is the underlying basis or bases for the assertion of those statements of fact. The plaintiff seems to interpret the second sentence in paragraph 9 as amounting to an indication that the defendant has some facts which it will rely upon which would disprove that a foreseeable and not insignificant risk of harm was created by the leaking refrigeration unit. As I have said, in my view, the defendant is doing no such thing. 9. Statements of the kind in the second sentence of paragraph 9 of the Defence, and the other statements about which the plaintiff makes further inquiry, do no more in effect than emphasise existing denials. In terms of their effect, they are superfluous. Since the defendant does not carry any burden of proof on questions such as the scope of the duty of care, breach (the aspects of risk of harm and failure to take precautions) or causation, there is no reason why the defendant would seek to introduce new factual matter in its Defence unless it sought to positively demonstrate why facts alleged by the plaintiff are invalidated. Bland statements of emphasis of existing denials are not the same thing. 10. Put another way, the second sentences in the Defence about which the plaintiff seeks further information, contained in all of paragraphs 9, 10, and 12 are statements that would, if they were not stated, otherwise have been implied from the general statement of denial (or non-admission). 11. I would also add that notwithstanding parties' obligations of case management in civil proceedings, disputes about particulars are not intended to provide a vehicle for parties to interrogate their opponents about what their position is in respect to issues generally; and issues on which they carry no onus of proof more specifically. In my opinion, the requests made for further and better particulars amount to a thinly veiled attempt to interrogate the defendant as to why it has denied that a duty of care was breached, or why it says that breach did not cause loss or why it thinks the threshold for the recovery of non-economic loss has not been surmounted. Requests for further particulars of this kind are not proper or necessary to be answered. 12. So far what I have said deals with the requests in relation to paragraphs 9, 10 and 12 of the Defence. I turn now to the balance of the requests which fall outside that category. 13. The second sentence in paragraph 11 might be regarded as amounting to a positive contention of fact that the precautions which the plaintiff identified in its statement of claim were "prohibitive". I consider that this was different from the second sentences to paragraphs 9, 10 and 12. The defendant is saying, in effect, that, relative to the risk of harm, it would have been too financially burdensome to have taken the precautions. That being so, it was not unreasonable to fail to take them. This is a contention in respect to which the defendant would carry an evidentiary onus. In my view, however, the solution is not to impose a requirement that the defendant supply further particulars. A contention that a precaution is 'financially burdensome' is not easily reducible to a statement of particulars, since it amounts to an evaluative assessment. The proper course is to allow the defendant to prepare its evidence. If it seeks to adduce evidence of the financial burden of implementing the suggested precautions, the plaintiff will have opportunity to reply to that evidence. 14. The request made in relation to particular (c) to paragraph 15 of the Defence concerns one particular of the defendant's plea of contributory negligence. That defence is a matter about which the defendant carries the burden of proof. It is a substantive defence requiring the defendant to assert factual matters which make the plaintiff's claim wholly or partly not maintainable (at least in relation to the recovery of damages). It is a matter which, if it was not specifically pleaded, would take the plaintiff by surprise at a hearing. There are clear requirements in the Court rules for contributory negligence to be properly pleaded and particularised (rr 14.16 and 15.5 of the UCPR). This is what the Defendant purports to do in paragraph 15. 15. In my view, the plaintiff has not established why it is necessary for the Defendant to supply any further particularity to what is contained in particular (c) to paragraph 15. The current particular clearly puts the plaintiff on notice that the defendant contends that had she acted reasonably in her own interest, she would have seen the hazard. Whether the defendant can establish that argument is a matter for evidence. Since it concerns what this plaintiff saw, or could not see, at the relevant time, the evidentiary inquiry will be narrow. The plaintiff will inevitably give an account of how the accident occurred and it is not too difficult to conceive that she will likely say that she did not see the water emanating from the refrigeration unit. Whether particular (c) to paragraph 15 is made out will depend upon the defendant's success in challenging the veracity of what the plaintiff says in that regard. 16. Paragraph 19 is strangely pleaded. I confess I do not understand the nature of the withdrawal ventured by the defendant in its solicitor's letter dated 23 July 2020. On the one hand, it appears to withdraw the paragraph but in the next it appears to be trying to make it clear that it still puts the question of the plaintiff's entitlement to recover non-economic loss in issue. 17. This is confusing. What is clear is that earlier in the Defence, at paragraphs 13 and 14, the defendant denied that the plaintiff suffered the injuries and disabilities alleged and also denied, relevantly, the claim for non-economic loss. In order to make the question of the plaintiff's entitlement to recover non-economic loss an issue, the defendant did not need to do anything more. 18. It seems to me that the appropriate course is to strike out paragraph 19 as an embarrassing allegation under r 14.28(1)(b) of the UCPR. To take that course will not, however, preclude the Defendant from maintaining its position as expressed in paragraphs 13 and 14 of its Defence. 19. For these reasons, the application for further and better particulars is refused. Aside from paragraph 19 of the Defence, which should be struck out, there is even less basis for the alternative application for strike out of the parts of the Defence. 20. Other than the striking out of paragraph 19, the plaintiff's notice of motion dated 16 July 2020 should be dismissed. POSTSCRIPT Following delivery of these reasons, the Court made further orders for costs and case management of the proceeding. ********** Amendments 04 September 2020 - Correction of minor typo. 09 September 2020 - Correction of minor typo. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2020