New South Wales Supreme Court CITATION : Brierley v Proprietors of Strata Plan No 38936 & Ors [1999] NSWSC 278 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20745 of 1995 HEARING DATE(S) : 27 November 1998 JUDGMENT DATE : 1 April 1999 SIMON STUART BRIERLEY (Plaintiff) v THE PROPRIETORS OF STRATA PLAN NO 38936 (Defendant) THE PROPRIETORS OF STRATA PLAN NO 38936 (First Cross-Claimant) v BRIGHT & DUGGAN PTY LIMITED (First Cross-Defendant) BRIGHT & DUGGAN PTY LIMITED (Fourth Cross-Claimant) PARTIES : v THE PROPRIETORS OF STRATA PLAN NO 38936 (Fourth Cross-Defendant) BRIGHT & DUGGAN PTY LIMITED (Fifth Cross-Claimant) v MERITON APARTMENTS LIMITED (Fifth Cross-Defendant) THE PROPRIETORS OF STRATA PLAN NO 38936 (Seventh Cross-Claimant) v ACCURATE POOLS PTY LIMITED (Seventh Cross-Defendant) JUDGMENT OF : Levine J A D M Hewitt (Defendant) COUNSEL : M T McCulloch (First Cross-Defendant) P Deakin Q.C. (Seventh Cross-Defendant) Dunhill Madden Butler (Defendant) Murray Stewart & Fogarty (First Cross-Defendant) SOLICITORS : Stewart Cuddy & Mockler (Fifth Cross-Defendant) Curwood & Partners (Seventh Cross-Defendant) CATCHWORDS : On application to amend DECISION : See paragraph 41 DLJ : 3 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 20745 of 1995 JUSTICE DAVID LEVINE THURSDAY 1 APRIL 1999 SIMON STUART BRIERLEY (Plaintiff) v THE PROPRIETORS OF STRATA PLAN NO 38936 (Defendant) THE PROPRIETORS OF STRATA PLAN NO 38936 (First Cross-Claimant) v BRIGHT & DUGGAN PTYLTD (First Cross-Defendant) BRIGHT & DUGGAN PTYLTD (Fourth Cross-Claimant) v THE PROPRIETORS OF STRATA PLAN NO 38936 (Fourth Cross-Defendant) BRIGHT & DUGGAN PTYLTD (Fifth Cross-Claimant) v MERITON APARTMENTS LIMITED (Fifth Cross-Defendant) THE PROPRIETORS OF STRATA PLAN NO 38936 (Seventh Cross-Claimant) v ACCURATE POOLS PTY LIMITED (Seventh Cross-Defendant) JUDGMENT 1 The plaintiff Simon Stuart Brierley instituted proceedings in this Court to recover damages for horrendous injuries sustained by him on or about 7 December 1994. Shortly stated, the plaintiff dived into a swimming pool in the common area of premises occupied by the defendant/first cross-claimant and became a quadriplegic. 2 Pursuant to orders made by me on 25 August 1997 arrangements were made for evidence to be taken in London. 3 Prior to the commencement of the hearing as between the plaintiff and the defendant, his action was settled. In the meantime a series of cross-claims have been instituted, and on 21 and 22 October 1997 evidence was given by the plaintiff and a Ms Addelsee on the issue of liability. The matter was then stood over for a date to be fixed for the resolution of the cross-claims in Sydney. 4 The defendant/first cross-claimant seeks to amend its cross-claim against the cross-defendant (Bright & Duggan Pty Limited) and its Seventh Cross-Claim against PMA Electrical Pty Limited (trading as Accurate Pools Pty Limited). 5 The proposed amendments cover two matters: first, the compromise reached as between the plaintiff and the defendant/cross-claimant and the compromise reached between the cross-claimant and the second cross-defendant (Meriton Apartments Pty Limited); the second and more critical component of the proposed amendments is made up of allegations of what is said to be new matters relating to breaches of agreement and negligence as between the cross-claimant and the first cross-defendant and as between the cross-claimant and the seventh cross-defendant. 6 The relevant amendments sought as against the first cross-defendant are in the following terms: "(f) Failing to have installed in the pool prior to the plaintiff's accident, a sign warning against diving into the shallow end of the pool, a sign clearly displaying the depth of water at that end, in a position in which it would be visible to persons such as the plaintiff using the pool, failing to ensure that the water in the pool was kept clear and clean so that the depth was discernible, failing to ensure that depth signs were installed on both sides of the pool at reasonable intervals, failing to ensure that such depth signs as had been installed in the pool, were in place at all relevant times, failing to appreciate the risk of injury to persons using the pool by reason of the illusion of depth created by reflection of columns in the pool water, and failing to ensure that a line, mural or other similar device was installed on the pool floor so as to provide a visual reference. (g) Failing to warn the cross-claimant of a risk of injury to users of the pool, especially those frequently found in the building, who were inexperienced with indoor pools and swimming generally and in particular diving in indoor pools, from the deficiencies in the pool referred to in the preceding paragraphs". 7 It also alleged in paragraph 13 of the proposed Amended First Cross-Claim that " the cross-defendant was guilty of negligence causing or contributing to the plaintiff's injuries" , reliance being placed on the allegations in the plaintiff's Statement of Claim and the particulars of breach which are sought to be amended as set out above. 8 The proposed amendments to the Seventh Cross-Claim include an allegation in paragraph 4, which has not hitherto been pleaded, as follows: "4. On the same date, the Seventh Cross-Claimant further agreed with the seventh cross-defendant, that the seventh cross-defendant would inspect, repair and maintain as necessary the pool machinery and equipment and would ensure that the pool waters were provided with suitable chemical treatment so that as far as reasonably possible those waters were safe and suitable for swimming. 9 Paragraph 5: "The agreement for the provision of advice in relation to the swimming pool referred to in paragraph 3 was understood by the Seventh Cross-Claimant and the seventh cross-defendant to mean that the seventh cross-defendant would advise the Seventh Cross-Claimant as to whether the swimming pool was so designed and constructed and its signage was such, as to meet the Seventh Cross-Claimant's liabilities both criminal and civil in respect of use of the pool and so as to ensure that the Seventh Cross-Claimant would comply with its duty of care to users of the pool". 10 Paragraph 7: "Pursuant to an agreement referred to in paragraph 3A, the seventh cross-defendant commenced to maintain repair and replace as necessary the pool equipment and machinery and in purported performance of the agreement commenced to provide chemical treatment of the pool water". 11 Amended particulars of breach are as follows: "(c) Failure to have installed in the pool prior to the plaintiff's accident, a sign warning against diving into the shallow end of the pool, a sign clearly displaying the depth of water at that end in a position in which it would be visible to persons such as the plaintiff using the pool, failing to ensure that the water in the pool was kept clear and clean so that the depth was discernible, failing to ensure that depth signs were installed on both sides of the pool at reasonable intervals, failing to ensure that such depth signs as had been installed in the pool were in place at all relevant times, failing to appreciate the risk of injury to persons using the pool by reason of the illusion of depth created by reflection of columns in the pool water, and failing to ensure that a line, mural or other similar device was installed on the pool floor so as to provide a visual reference. (d) Failing to warn the cross-claimant of a risk of injury to users of the pool, especially those frequently found in the building, who were inexperienced with indoor pools and swimming generally and in particular diving in indoor pools, from the deficiencies in the pool referred to in the preceding paragraphs". 12 Both proposed Amended Cross-Claims are opposed by the respective cross-defendants; it was agreed that I could deal with the application to amend by way of written submissions only. 13 The first cross-defendant in opposition to the application for the amendment refers to the commencement of proceedings in 1995, the giving of directions relating to that hearing in London, the commencement date for the hearing in London on 21 October 1997, and the settlement of the proceedings as between the plaintiff and the cross-claimant. 14 The evidence the plaintiff and the other witness gave in London was directed to the physical surrounds of the swimming pool in which the plaintiff suffered his injury and of observations made of that area the pool itself and of the plaintiff's actions immediately before diving. The cross-examination of the plaintiff was directed to his actions at about the time he dived and he was cross-examined about his actions on the hypothesis that particular signs were present. He was not cross-examined about depth signs at reasonable intervals nor was the question of reasonable intervals between any such signs explored with him. It is contended that had there been assertions as to the precise positioning of signs, the ambit of cross-examination of the plaintiff and his witness by the first cross-defendant may well have been different. 15 Furthermore, there was no cross-examination, so it is contended, as to the effect, if any, of lines, murals or other devices on the pool floor by way of visual references; the plaintiff's experience as a diver was not explored properly. 16 No explanation is offered in support of the application to amend by the first cross-claimant other than the recent obtaining by it of an expert opinion by Mr Farmer whose ability to give assistance on the issue is said only to have come to the notice of the cross-claimant after the conclusion of the hearing in London. It was not available to the cross-claimant at that time. Until the amendments sought were proposed the whole thrust of the cross-claimant against the first cross-defendant was put on a different basis and related more to the failure to instruct others to perform tasks which would have rendered the pool safe. This idea is further developed by Mr Deakin Q.C. in his submissions on behalf of the Seventh Cross-Claimant. 17 The first cross-defendant, it is said, would be prejudiced by the allowing of the amendments when the opportunity to explore the substance of the allegations further with the plaintiff and other witnesses in cross-examination has passed and where those persons are geographically distant and the costs of obtaining further evidence to enable the first cross-defendant fully to litigate the new issues, would be extraordinarily high. Further, any suggestion by the cross-claimant that the proposed amendments are but by way of " expansion " can be taken as an acknowledgment that they are really the " same " and the necessity for amendment does not arise. If the new amendments in fact relate to different facts, they have not been tested because they were not raised before October 1997 and no explanation has been given as to why that is so. 18 It is suggested by the first cross-defendant that in the event of leave to amend being granted and the amendments being made, a term of the grant of leave should be that the cross-claimant pays, on an indemnity basis, and in advance, any costs to be incurred by the first cross-defendant in having once again, to go to London to take further evidence from the plaintiff who has been excused and from any other witnesses. 19 The submissions for the seventh cross-defendant focus upon the paragraphs (c) and (d) which I have set out above " as particulars of breach of agreement ". 20 At the time of the London hearing the Seventh Cross-Claim asserted certain breaches of agreement and particulars of negligence which can be summarised as follows: " in relation to the breaches of the agreement, breach in respect of advising that the pool was in legal compliance and advising that the pool was safe for use". With respect to negligence, the case of breach related to failure to warn or advise that the pool required improved lighting, improved signage, warnings, depth indicators, failing to warn or advise that the pool was constructed of unsafe and unsuitable materials, not kept clear or clean, failing to advise how to make the pool safe and failing to make the pool safe. 21 It is said that the proposed further amendments to the Seventh Cross-Claim assert new particulars of breach of agreements in sub-paragraphs (c) and (d) to the following effect: failing to install a sign warning against diving into the shallow end; failing to install a visible depth sign at the shallow end; failing to install other depth signs at intervals on both sides of the pool; failing to ensure that installed signs remained in place; failing to ensure a line or such like was installed on the pool floor. The particulars further allege, so it is said, failure to " appreciate the risk of injury to persons using the pool by reason of the illusion of depth created by reflections of columns in the pool water" and failure to warn the proprietors of the strata plan of risk of injury to users of the pool who were inexperienced with indoor pools, swimming and diving into indoor pools. 22 It is argued that in circumstances were evidence has already been heard, not only from the plaintiff but also from the one other eye witness to the accident in the course of the hearing in London, the Court would not at this stage permit any amendment to the allegations made against the party (the seventh cross-defendant) in circumstances where to allow such an amendment would or could be prejudicial to that party. It is to be observed, so it is argued, that the thrust of the allegations initially made against the seventh cross-defendant was to the effect that in its dealings with Amanda White, who was employed by Bright & Duggan Pty Limited the fourth and fifth cross-claimants, as the Building Manager for the strata block, the seventh cross-defendant had failed to proffer to her appropriate advice and warnings in respect of the pool. Such a case is materially and significantly different to the case which is now sought to be raised against the cross-defendant. That material difference arises in respect of the new allegations referred to above and it is to be observed that the allegations aginst the seventh cross-defendant now seek to assert a duty on its part to carry out actual work on the swimming pool in the respects specified going beyond the broad allegations previously raised in respect of advice and/or warnings which, it is said, should have been giving to Ms White. 23 To permit such amendments at this stage would be manifestly prejudicial to the seventh cross-defendant because the raising of such allegations obviously would have required the eye witnesses to be questioned not only in respect of what observations of the pool they had made and of its surrounds at the time of the plaintiff's injuries, but more importantly, what effect such signs, warnings and alterations to the pool, which are now alleged against the seventh cross-defendant may have had on the plaintiff, particularly in making his decision to dive into the swimming pool from the position in which he did (see The Public Trustee v Sutherland Shire Council (1992) Aust Torts Report 81-149 per Gleeson CJ at 61,140). 24 If the seventh cross-defendant had previously been aware of any allegation against it that it was required to take positive steps to remove or reduce the danger of the plaintiff injuring himself, as opposed to advising or warning Ms White of the requirement that such steps be taken by other parties, it would clearly have been necessary for questions going to the issue of causation to be asked, at least, of the plaintiff. 25 The new allegations raise new matters in respect of the appearance of the pool water and an illusion of depth apparently created by reflections in the water. The same submissions are made in respect of this discrete new allegation. The seventh cross-defendant would again have required questions to be asked of all eye witnesses as to whether or not any observation was made about any such reflections or any such illusion of depth on the relevant occasion when they were present at the pool. 26 Although the failure to warn case had previously been particularised, the allegation sought to be made against the seventh cross-defendant in respect to failing to warn the proprietors of the strata plan of risk of injury to users of the pool who were inexperienced is an allegation of particularity in relation to persons " inexperienced with indoor pools, swimming and diving into indoor pools ". This new allegation, if made at the appropriate time, would have required questions to be asked of the plaintiff and his companions in respect of their experience with indoor pools. The seventh cross-defendant again submits that to allow the amendment at this stage of the proceedings would give rise to prejudice in reality incurable otherwise than by the enormous expense involved in reconstituting a hearing in London to take further evidence from the plaintiff and lay witnesses. 27 The seventh cross-defendant also makes the point that no compelling reason is put forward by the cross-claimant as to why it could not have made these particular allegations before the hearing was conducted in London. No explanation is given as to why Mr Farmer could not have been retained before the hearing in London. 28 The new allegations involve the perceptions and experience of people who have returned to the United Kingdom. In no practical or realistic sense can they now be asked about their experience of indoor pools and diving into them, or about whether the reflection of the columns caused an illusion of depth to them unless great expense and inconvenience is incurred. 29 A submission is also made that the allegation relating to failure to " appreciate the risk of injury to persons using the pool by reason of the illusion of depth … ", in any event is incapable of supporting any allegation of breach of the agreement. 30 The cross-claimant by reference to the proposed amendments in (f) and (g) set out earlier in these reasons asserts that as to the depth signs, the original form of cross-claim referred to the absence of a depth sign by reference to the plaintiff's Statement of Claim which alleged absence of adequate signs, warnings and adequate indication of depth. It is said that the proposed allegation merely " enlarges " on this. The reason is the obtaining of the opinion from Mr Farmer. 31 Mr Hewitt refers to the fact that in the course of giving evidence in London, the plaintiff gave evidence in cross-examination by Mr Gleeson Q.C. for the defendant (at T8-9): "Mr Gleeson: Did you, before you dived into the pool, see any signs saying 'No Diving'? A. No; they were not in evidence. Q. If you had seen a sign saying 'No Diving', would you have dived in? A. No. Q. From the area where you dived, did you see any sign indicating the depth of the pool? A. No. Q. If you had seen a sign indicating a depth of 0.8 of a metre, would you have dived into the pool? A. Not someone of my size, no; that's not a lot of water. Q. When you say not someone of your size, what is your size. A. I was 6 foot 5. Q. You mentioned to Mr Murray, I think, that you could not see the bottom of the pool? A. No. Q. So you did not see any markings on the bottom? A. There was nothing to give an indication of depth of the bottom of the pool, no. Q. You used the word 'cloudy'. Can you elaborate on what you mean by that? A. In such that it was cloudy; it was as if the water was not very clear, in a sense that it seemed to have something in it. It either was not filtered very well, or there seemed to be some substance in there to indicate that this was not clean water". 32 The first cross-defendant did not cross-examine on this. 33 As to the illusion of depth, Dr Adams report which was exhibit 'A' and which had been served prior to the hearing in London, referred to this concept at page 8 and is referred to in the plaintiff's evidence in cross-examination by Mr McCulloch for the first cross-defendant as set out above (page 11), during re-examination by Mr Murray Q.C.: "Q. I have just one thing. You answered Mr McCulloch by saying that you thought the pool was of uniform depth? A. That is correct. Q. Why did you think that? MR DEAKIN: I object. HIS HONOUR: I will allow it. MR DEAKIN: As your Honour pleases. WITNESS: As I said, my girlfriend was at one end of the pool. It was deep enough to submerse her - six foot. Upon looking at the pool before diving in, you could not see the bottom. Now, if you cannot see the bottom of a pool, it is pretty reasonable that it is deep enough. That has been my experience in the past. If you cannot see the bottom, through any water, it is because it has depth. Now with hindsight, I know that depth was false because of the impression I was given by the lighting and the quality of the water. But that is about it, you know. MR MURRAY: Thank you". 34 The proposed paragraph 10(g) of the Amended Cross-Claim effects an enlargement of the existing allegations only by reference to persons who are inexperienced in pools of this kind and the plaintiff gave evidence about his inexperience in indoor pools at pages 18 and following of the transcript of 21 October 1997, in the course of cross-examination by Mr McCulloch. 35 It is said that the first cross-defendant would or should have known in any event, that the home unit block in question was used by backpackers and overseas visitors. 36 In relation to the opposition raised by the seventh cross-defendant to the proposed amendments, the same submissions in effect are made in support of the application. 37 It is said that if the cross-claimant's allegations against the seventh cross-defendant are proved, the cross-defendant was a visitor to the building from time to time who should have become aware of the types of persons using it and that its location further increased the likelihood of such usage (such a proposition, I assume, being advanced, for amongst other reasons, as indicating that there be no prejudice in relation to any want of evidence from the plaintiff or lay witnesses who would otherwise have been questioned in relation to any such issue in London). 38 In the end I am not persuaded by the articulated matters in opposition to the amendment that the amendment should not be made. Upon analysis I am not persuaded that there would be any need, upon the grant of the amendment, for further cross-examination of the plaintiff or any other lay witness in relation to these issues; they appear to have been covered in the evidence generally. The further litigation of these issues before me will, of course, be more directly under the control of the operation of the Evidence Act , 1995 and in a practical sense, if there exists then any prejudice it might be dealt with appropriately. It is desirable that all issues between the parties be litigated as a matter of general principle and I see no reason to disallow the amendment. 39 The illusion of depth, the experience of the plaintiff, certainly have been covered by evidence hitherto and the nature of the amendment of the cross-claim as against the seventh cross-defendant in terms of any shift from mere warning to a duty to do specific things, seems to me, to be amenable to evidence that would be called in Sydney in any event. 40 What may be described as the " protest " at this late application in the context of the subsequent provision of the report relied upon the cross-claimant of Mr Farmer is fair but not determinative of the outcome of the cross-claimant's application. 41 The formal orders are: 1. I grant leave to the cross-claimant to amend its cross-claims as against the first cross-defendant and the seventh cross-defendant. 2. The first cross-claimant is to file and serve its Amended Cross-Claim against each of the first cross-defendant and seventh cross-defendant within 7 days. 3. Each of the first and seventh cross-defendant's is to file its Amended Defences to the Amended Cross-Claims within 7 days thereafter. 4. The cross-claimant is to pay the costs occasioned to the first cross-defendant and the seventh cross-defendant by the grant of leave to amend. 5. The first cross-defendant and seventh cross-defendant are to pay the costs of the cross-claimant's application to amend. ********** Last Modified: 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. 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