Supreme Court New South Wales Medium Neutral Citation: Sheather v Carricks Plumbing & Gasfitting Pty Ltd [2022] NSWSC 1198 Hearing dates: 6 September 2022 Date of orders: 6 September 2022 Decision date: 06 September 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: (1) On or before 5pm on 20 September 2022 the plaintiff file and serve an Amended Statement of Claim pleading a duty of care, a risk of harm and the precautions that should have been taken against the risk in the terms stated in the email from the plaintiff's solicitor to the Court and the defendant sent at 6.34pm on 5 September 2022. (2) On or before 5pm on 11 October 2022 the defendant file and serve: (i) An Amended Defence; (ii) An affidavit explaining why those facts, if any, that are pleaded in the Amended Statement of Claim and which correspond to a fact set out in the agreed statement of facts dated 24 February 2022 filed in District Court Proceedings No. 2020/349420 are either denied or not admitted in the Amended Defence; and (iii) An affidavit explaining why, notwithstanding the terms of the plea of guilty in District Court Proceedings No. 2020/349420 and the agreed statement of facts filed in those proceedings, it denies liability. (3) List the proceedings before the Registrar for directions on 18 October 2022 at 9am. (4) The plaintiff's Notice of Motion filed 29 July 2022, and the defendant's Notice of Motion filed 18 August 2022, be otherwise dismissed. (5) Each party's costs of the motions be costs in the cause. Catchwords: PLEADINGS – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Work Health and Safety Act 2011 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175 Civil Liability Act 2002 (NSW) Category: Procedural rulings Parties: Thomas George Sheather (Plaintiff) Carricks Pluming & Gasfitting Pty Ltd (Defendant) Representation: Counsel: Mr M Best (Plaintiff) Mr SE McCarthy (Defendant) Solicitors: North Coast Compensation Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): 2022/74529 EX PARTE JUDGMENT 1. Before the Court are two notices of motion, one filed by each party. The plaintiff's notice of motion, filed 29 July 2022, seeks the striking out of various parts of the defence. The defendant's notice of motion, filed 18 August 2022, seeks the striking out of the statement of claim in its entirety, but failing that, various alternative forms of relief. At the core of each party's submission is the contention that the other party's pleading is inconsistent with s 56 of the Civil Procedure Act 2005 (NSW). For the reasons I will explain, to an extent, both parties are correct. Background 1. On or about 18 March 2019, the plaintiff, Mr Sheather, was working on a residential building site and fell through a skylight injuring himself. At the time he was employed by Lewin Roofing Pty Ltd trading as JRL City Roofing ("Lewin"). Lewin had entered into a subcontract with the defendant, Carricks Plumbing & Gasfitting Pty Ltd ("Carricks"), to assist with roof plumbing works at the site. 2. Following the accident, Carricks was charged with, and entered a plea of guilty to, an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("the Act"). This charge was the subject of a judgment in the District Court given on 25 May 2022 (SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175). 3. Paragraph 1 of the judgment records that the relevant offence was that Carricks "…being a person conducting a business or undertaking who had a duty under s 19(1) of the Act to ensure, so far as reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking", and in so doing, "did fail to comply with that duty and the failure to comply with that duty exposed workers, including Thomas Sheather" and another person, "to a risk of death or serious injury." 4. Following its plea, Carricks was fined $180,000. 5. Although many elements of the charge related to and perhaps correspond with aspects of a claim in negligence, the elements of the offence and the elements of that cause of action are not coextensive. There is a debate as to whether the form of duty that is imposed corresponds with a duty to provide reasonable care, noting that the relevant duty under s 19(1) of the Act is phrased in terms of "ensuring safety". It is also notable that it is not an element of that offence to demonstrate causation between the relevant breach and the occasioning of any particular injury. Instead, what must be shown is the exposure of the relevant worker to a risk of death or serious injury. 6. On or about 15 March 2022, a statement of claim was filed on behalf of Mr Sheather seeking damages from Carricks. Paragraphs 1 to 19 of the statement of claim recite various facts and circumstances surrounding Mr Sheather's fall. It is clear that the drafter of the statement of claim had access to an agreed statement of facts that was tendered in the prosecution of Carricks. At the very least, on this application it is common ground that those paragraphs are not elegantly drafted in that each paragraph contains a number of factual assertions and some legal contentions. After reciting those matters para 20 pleads: "The plaintiff's fall was caused by the negligence of the defendant." Paragraph 21, which is headed, "Particulars of Negligence" specifies that the defendant was negligent in four respects, some of which are pitched at a reasonably broad level of generality. Paragraph 22 pleads that, as a consequence of the negligence, the plaintiff was injured and suffered, and continues to suffer, loss and damage. 7. On or about 6 July 2022, Carricks filed a defence. So far as the matters pleaded in the statement of claim are concerned it admits some facts, but in at least three instances asserts that a particular paragraph of the statement of claim is in an embarrassing form that cannot be properly pleaded to. It also does not admit various facts that appear to correspond with the agreed statement of facts. 8. The defence contains a denial of negligence. It also pleads a claim of contributory negligence, as well as a claim for the reduction of any damages on account of the negligence of Lewin pursuant to s 151Z of the Workers Compensation Act 1987 (NSW). 9. Both pleadings set off a blizzard of correspondence between the solicitors. The solicitors for the defendants sought a significant number of particulars of the factual allegations in the statement of claim to which I have referred. This provoked indignation on the plaintiff's solicitor's behalf who contended that there could be no real dispute given the agreed statement of facts. The defendants complained that the statement of claim did not properly identify the elements of the cause of action in negligence, a matter to which I will return. The plaintiff's solicitors complained that the defence departed from the agreed statement of facts and were otherwise incredulous that there was a denial of negligence on the part of Carricks. Statement of Claim 1. Carricks' complaints about the statement of claim fall into two broad categories. The first is a matter of pleading form, in that as I have said, it contends that various parts of the statement of claim are prolix because of the rolling up of a number of facts into one paragraph. Thus, for example, para 6 of the statement of claim reads as follows: "It was agreed that the Lewin workers, including the plaintiff, would replace the roofing sheets and that the defendant's workers would instal the box gutters and flashings. Both the defendant and Mr Lewin agreed to use harnesses as the means to control the risk of falls at the site." 1. Paragraph 6 of the defence contends that the pleading in its current form is "embarrassing" and the defendant cannot properly plead to it. It then pleads that Lewin "was responsible for installing harness anchor points, which were relevant to the task its workers were performing on the roof" and that "Lewin provided the tools and equipment including harnesses to the workers, and to enable them to undertake their tasks." 2. Consistent with what I observed earlier, para 6 of the statement of claim appears to replicate paras 10 and 11 of the agreed statement of facts. Although this paragraph of the statement of claim is not an elegant form of pleading, it is certainly not embarrassing or unintelligible. Given Carricks' agreement to the agreed statement of facts I do not see how it really has any difficulty in responding to that paragraph and to other paragraphs that might contain more than one factual allegation. If one were to apply that level of scrutiny to pleadings in the Division many cases would simply not get on. 3. Carricks' other broad complaint has more substance. By reference to various authorities it contends that the statement of claim does not properly set out the elements of a cause of action in negligence, specifically the statement of claim does not plead the existence of a duty of care and does not, so it said, identify the relevant risk of harm. I agree that it does not set out the terms of the duty of care, including its scope. As to the risk of harm, I do not think it is too difficult to ascertain what that is in that the statement of claim it refers to the risk of falling through skylights. Otherwise, there is a difficulty in the identification of the relevant particulars of negligence, or its corresponding phrase in the Civil Liability Act 2002 (NSW), namely, the relevant "precautions". They are very general. 4. Upon reading the materials yesterday, I gave a direction to the plaintiffs requiring them to shortly state the scope and content of any duty of care, confirm that the risk of harm was the risk of physical injury from falling through the skylight, and to further particularise the measures that should have been undertaken, (ie, the "precautions"), as they are essential to any causation analysis. Without conceding any defect in their statement of claim the plaintiffs complied. 5. I think the appropriate course to address this, is to direct the plaintiffs to file and serve an amended statement of claim pleading a duty of care, a risk of harm and the precautions in the terms set out in the response to my direction. The Defence 1. It follows from what I have stated that I do not accept so much of the defence that contends that the various pleading of factual matters in the statement of claim is embarrassing. However, the plaintiff's motion went further than complaining about those aspects of the defence. The plaintiff complained about the inclusion in the statement of claim of non-admissions or denial of facts that appeared to correspond to factual admissions that were made in the statement of agreed facts. 2. The plaintiff also contended the denial of negligence should be effectively struck out as it was a form of abuse of process, given the plea of guilty and an affidavit from the sole director of the defendant that was read on the plea in the District Court. In that affidavit, the director acknowledged the health and safety management system in place prior to the accident and that the control measures did not adequately control the risk involved in the accident insofar as was reasonably practicable. He accepted that the control measures were not sufficient to identify and assess the risk of falling through the skylight and then eliminate or minimise the risk of falling. Later, he expresses full responsibility for "Carricks' contribution to the incident and feels deep regret that the incident occurred." 3. I do not treat these statements as a full admission of all the elements of a cause of action in negligence. Without knowing what the director's understanding of what those elements are, including the scope of any duty of care at common law, as well as matters such as causation, I do not think it concedes that much. Instead, these paragraphs clearly involve acknowledgments of the elements of the charge against Carricks, which I have already explained is different to a case of negligence. No doubt these matters can be forensically deployed, if negligence continues to be denied, to support the plaintiff's claim. Even if they were an admission of negligence, admissions are not so strictly binding that they would require the striking out of a denial of negligence in the defence and the entry of what would, in effect, be summary judgment. That said, given the objects in s 56 of the Civil Procedure Act, I am concerned about the state to which the parties have got themselves into in what appears to not be a particularly complicated case and where there have already been significant admissions made in the prosecution to which I have referred. 4. As there will be an order requiring the filing of an amended statement of claim there will also be an order for the filing of an amended defence. As part of those orders there will be an order requiring the defendant to serve an affidavit explaining why, in respect of any fact that is pleaded in the statement of claim that corresponds to the agreed statement of facts to which there is a denial or non‑admission, why that denial or non-admission is being made. The same affidavit will need to explain, in broad terms, the basis for the denial of liability. 5. Once those explanations have been given there can then be an assessment of the real issues in dispute insofar as liability is concerned before the parties embark upon the potentially long slog of exchanging particulars and expert reports and the like. 6. Accordingly, I will make the following orders: (1) On or before 5pm on 20 September 2022 the plaintiff file and serve an Amended Statement of Claim pleading a duty of care, a risk of harm and the precautions that should have been taken against the risk in the terms stated in the email from the plaintiff's solicitor to the Court and the defendant sent at 6.34pm on 5 September 2022. (2) On or before 5pm on 11 October 2022 the defendant file and serve: (i) An Amended Defence; (ii) An affidavit explaining why those facts, if any, that are pleaded in the Amended Statement of Claim and which correspond to a fact set out in the agreed statement of facts dated 24 February 2022 filed in District Court Proceedings No. 2020/349420 are either denied or not admitted in the Amended Defence; and (iii) An affidavit explaining why, notwithstanding the terms of the plea of guilty in District Court Proceedings No. 2020/349420 and the agreed statement of facts filed in those proceedings, it denies liability. (3) List the proceedings before the Registrar for directions on 18 October 2022 at 9am. (4) The plaintiff's Notice of Motion filed 29 July 2022, and the defendant's notice of motion filed 18 August 2022, be otherwise dismissed. [Parties addressed on costs] 1. It follows from what I have stated that I do not regard either party as having covered themselves in glory. Unusually both were unsuccessful. The appropriate order is: (5) Each party's costs of the motions be costs in the cause. ********** 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 2022