Supreme Court New South Wales Medium Neutral Citation: Gangi v Boral Resources (NSW) Pty Limited [2012] NSWSC 398 Hearing dates: 10 April 2012 Decision date: 27 April 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Leave to amend statement of claim granted. Costs have been reserved. Catchwords: PROCEDURE - pleadings - leave sought to amend statement of claim - leave granted - reasons - costs reserved Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Cases Cited: Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Category: Procedural and other rulings Parties: Salvatore Gangi (Plaintiff) Boral Resources (NSW) Pty Limited (Defendant) Representation: Counsel: Mr DJ Russell SC with Mr N Ghabar (Plaintiff) Mr MT McCulloch SC with Mr RG Gambi (Defendant) Solicitors: Daniela Sicurella (Plaintiff) Colin Davidson, Davidson Legal (Defendant) File Number(s): 2010/346723 Judgment 1On 10 April 2010, the first day of the hearing, over the defendant's objections, I granted the plaintiff leave to amend his statement of claim. These are the reasons for the grant of that leave. 2The plaintiff was a truck driver who was injured in December 2007 while at work at one of the defendant's concrete batching plants. His truck was severely damaged by the catastrophic collapse of a hopper, which fell onto the truck while it was parked under the hopper, in order that it could be loaded. The plaintiff's case is that he had just alighted from the truck when the structure collapsed onto both him and the truck. 3The accident was investigated by the WorkCover Authority of NSW ('WorkCover') and the plant was later demolished. The plaintiff commenced the proceedings in October 2010, alleging negligence of various kinds against the defendant. The claim was defended by a defence filed in March 2011, whereby the defendant denied liability and raised s 151Z of the Workers Compensation Act 1987 as a defence. 4When the hearing commenced, it appeared that despite the obligations imposed upon them by the Civil Procedure Act 2005 and the directions and orders earlier made by the Court, that there were difficulties with the pleadings and that as a result, the parties had been unable to identify what was really in issue between them, in any meaningful way. 5At the commencement of the hearing it was announced for the defendant that there were shortcomings in the statement of claim, which the parties had discussed and which needed to be rectified, but that the parties proposed that the case would be opened and the plaintiff's evidence called, with amendments to the pleadings to be further discussed between them in the meantime. The plaintiff accepted that matters identified by the defendant should be addressed and also raised problems with the defence, which, it was submitted, failed to comply with the requirements of Rule 14.14(2) and (3) of the Uniform Civil Procedure Rules 2005, which provides: "14.14 General rule as to matters to be pleaded specifically (cf SCR Part 15, rule 13; DCR Part 9, rule 9) ... (2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. (3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality." 6This deficiency was said to have been revealed only shortly before the hearing, when the defendant served a statement of Mr Russell, a former employee, which for the first time revealed the defendant's explanation as to the cause of the collapse of the hopper, an explanation not previously disclosed to the plaintiff. This was not referred to in the defence, as the plaintiff submitted it ought to have been, with the result that the plaintiff had been caught by surprise. 7Because of the demolition of the plant and the defendant's failure to reveal this explanation, the plaintiff's expert Mr Appleyard had not been able to inspect the plant. The plaintiff was placed in a position where he was forced to rely on information obtained during the WorkCover investigation into the accident and certain material produced by the defendant in these proceedings. That did not include the defendant's explanation as to the cause of the collapse. In the result, the defendant's explanation as to the cause of the collapse had not been considered by Mr Appleyard. 8The position was, it was complained, that if the defendant had complied with the Registrar's directions, which required Mr Russell's statement to be served by December 2011, the explanation for the cause of the collapse only revealed by the defendant, the week before the hearing when Mr Russell's statement was served, could have earlier been considered. The result of the defendant's late service of its evidentiary material was that what had been belatedly revealed required the amendment of the statement of claim. 9In the result I took the view that before any evidence was called, the position of the pleadings had to be resolved. That was not only critical to the parties' identification of what was really in issue between them, as contemplated by s 56(3) and (3A) of the Civil Procedure Act, it was also critical for the determination of what evidence would be received, it only being evidence which is relevant to the issues in the proceedings, which is admissible under the Evidence Act 1995. 10After an adjournment so that the parties could discuss the proposed amendments to the pleadings, the defendant announced a change in its position. It withdrew its complaints as to the inadequacy of the statement of claim, which it had earlier submitted failed to deal with necessary requirements of the Civil Liability Act 2002 and resisted the complaint as to the alleged inadequacy of its defence. Its position was that the hearing should proceed on the basis of the existing pleadings. 11The plaintiff considered the alteration in the defendant's position, but then pressed an application for leave to proceed on an amended statement of claim. The plaintiff's position was that he needed to amend his statement of claim, to have regard to what the defendant had recently revealed as to the cause of the accident and to provide the particulars the defendant had earlier sought and which he had agreed to provide. The complaint as to the inadequacy of the defence was maintained. 12The amendment application was then resisted by the defendant on a number of broad grounds. The first, the plaintiff's earlier failure to provide particulars, as to which the defendant relied on correspondence between the parties' solicitors, commencing in October 2011 and concluding in March 2012, as to particulars sought of the plaintiff's claim, to demonstrate the inadequacy of what had earlier been provided. The second basis was certain technical inadequacies with the proposed amendments and the third, the prejudice the defendant submitted it would suffer in having to meet a new case, directed to what it had recently revealed as to the real cause of the collapse, the shearing of certain bolts which supported the structure, rather than corrosion. On the defendant's approach this cause of the collapse was one which the plaintiff's expert ought always to have identified, given his instructions. 13I took the view, having in mind the procedural history of the matter and what had been revealed through the late service of Mr Russell's evidence and the defendant's breaches of the Rules and various orders of the Court, that the leave sought had to be granted. The reasons for that conclusion were as follows. Particulars 14The defendant's criticism of the answers earlier provided to its request for particulars had to be considered in the context of the procedural history of the matter. It had initially come before the Registrar and then me, for case management. Prior to the hearing the defendant had made no complaint as to the inadequacy of the pleadings. It was only after that complaint was abandoned at the hearing, that a complaint was advanced as to the inadequacy of the particulars earlier provided. The defendant had never sought any directions from either the Registrar or me, about those matters. 15Even when the matter came before me for directions in March 2012, when the defendant foreshadowed making an adjournment application, in circumstances where it had failed to comply with the Registrar's directions as to the service of its lay and expert evidence, it made no complaint about any prejudice flowing from a lack of particulars. 16To first object to the provision of further particulars in the amended statement of claim, which earlier that day the plaintiff had agreed to provide, as the defendant had sought, given the claimed inadequacy of that pleading, was an objection which could not be regarded as having any proper foundation. There could certainly be no prejudice from the provision of the particulars it had sought. The technical deficiencies 17Clause 8A and 8D of the amended statement of claim provided: "8A The defendant should have taken precautions against the risk of harm, being personal injury to a class of persons such as the plaintiff arising from the collapse of the said concrete batching plant. 8D A reasonable person in the defendant's position would have taken precautions to avoid the risk of harm pleaded in 8A above. Particulars a. Inspecting the bins and supporting structures (if any) to ascertain how these bins were being held up: b. Inspecting the bins and supporting structures (if any) to ascertain whether their structural integrity was adequate to support the weight of the material being loaded in the bins; c. Obtaining advice from appropriately qualified experts as to whether the structural integrity of the support systems (if any) for the bins was adequate for the load that was being placed on them; d. Obtaining advice from appropriately qualified experts as to whether the method of fixation of the said bins to the supporting structure (if any) was adequate for the load that was being placed on them; e. Obtaining advice as to whether additional support was required to be mounted to support the bins given the load being placed on them; f. Maintaining the said bins, support structures and the said mechanisms by which the bins were affixed to the supporting structures (if any) to guard against the risk of collapse." 18The defendant complained that firstly, clause 8A had to be recast, for reasons discussed by Garling J in Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 at [63] - [66] by reference to what Gummow J had discussed in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [59] - [61]. Secondly, that the particulars provided in respect of clause 8D, alleged particulars of negligence, where what was in fact provided were "particulars of risk of harm. These are actually the material facts which should have been pleaded so that the pleading is really, with great respect, needs to be completely re-cast." I did not accept those submissions. 19Gummow J emphasised the need to accurately identify the actual risk of injury faced by the plaintiff. Both the word 'harm' and the term 'personal injury' used in clause 8A of the statement of claim are words which are defined in s 5 of the Civil Liability Act. Harm is defined as 'harm of any kind' including personal injury, which is defined to include 'impairment of a person's physical or mental condition'. Clause 8A thus identifies that the risk of harm against which it is claimed that the defendant ought to have taken precautions, was the risk of personal injury which arose from the collapse of the plant. What the precautions which ought to have been taken are alleged to have been, is identified in the particulars provided in clause 8D, where the precautions which a 'reasonable person in the defendant's position' would have taken, are identified. 20This approach to the pleadings was not, to my mind, deficient or inconsistent with the approach of Garling J or Gummow J in the authorities relied on. This objection to the amended pleading accordingly could not, be accepted. The defendant's failure to reveal its explanation of the cause of the collapse 21The defendant's explanation for the collapse of the hopper was first revealed by the service of Mr Russell's evidence. Even though it appears that after the collapse, the defendant took expert advice as to its cause, that advice has never been revealed to the plaintiff, the defendant having claimed privilege in relation to it. The cause of the collapse identified in the WorkCover inspection was corrosion. Mr Russell's statement disclosed that his inspection of the hopper, shortly after the collapse, revealed that it was caused by bolts shearing, not corrosion. 22The defence did not reveal that explanation for the collapse. This was plainly a matter which ought to have there been revealed, given the requirements of Rule 14.14, which not only obliged the defendant to plead any matter, which if not pleaded would take the plaintiff by surprise, or which made any claim not maintainable, it also required that if causation of an accident was said to be the result of unknown or undiscoverable defects, that this be specifically pleaded. 23If Mr Russell was to be called to give evidence, the defendant's explanation of the cause of the collapse was revealed, as soon as the defendant served his statement. Given the Registrar's directions, that ought to have occurred in December 2011. It finally occurred only shortly prior to the hearing. 24Even though it remains a matter for the defendant to determine whether or not it will call Mr Russell at the hearing, it seems to me unarguable in the circumstances, that the defendant could not justly be permitted to profit from its failure to adhere to the requirements of the Rules and the Court's orders, by the late service of Mr Russell's evidence. He could not be justly denied an opportunity to amend his pleadings, to take account of the newly revealed explanation as to the cause of the collapse of the plant, which he claims injured him, an explanation which ought long ago have been revealed to him. The defendant's failures in relation to the expert evidence 25Despite not having served Mr Russell's statement, the defendant instructed its expert, Mr Taylor, to make assumptions consistent with Mr Russell's statement. Mr Taylor's report should have been served in September 2011, had the Registrar's directions been complied with. It was also not served within the further timetable which the parties agreed in March 2012, having only been served the week before the hearing. When the plaintiff agreed to that timetable, obviously he was not aware of what was to be revealed when the defendant's evidence was served. The defendant's approach meant that neither Mr Russell's statement, nor Mr Taylor's report had been considered by the plaintiff's expert, Mr Appleyard, prior to the hearing. 26Also to be considered was that despite the directions which had been given that the expert evidence would be received concurrently, the defendant did not instruct Mr Taylor to consider or respond to Mr Appleyard's report. Plainly, if the Court's directions were to be complied with, the experts had to consider each others reports in order, firstly, to produce a report identifying what they agreed and disagreed and secondly, so that they could give their evidence concurrently at the hearing. 27Instructing Mr Taylor to consider Mr Appleyard's report, was not, as the defendants only complained when the hearing commenced, to give the plaintiff a further opportunity to lead evidence in chief from his expert, but for the parties to ensure that they had complied with the Court's directions, as they were obliged to do, so that the experts they had retained could assist the Court in resolving the matters over which the parties had joined issue. One of those issues is plainly what caused the collapse of the hopper in question. It always remains, of course, a matter for a party to determine whether or not it will call expert evidence. What it cannot do, having foreshadowed an intention to call such evidence, is to ignore the applicable practice note, which envisages that such expert evidence will be given concurrently, let alone the directions and orders which the Court has made as to how such evidence will be received in the particular case. 28Prior to the hearing, despite having been given liberty to approach, the defendant never approached, so that its various departures from the directions given at various times could be considered and dealt with. At the hearing the defendant finally argued not only that the matter should proceed on the existing pleadings and evidence, despite its failure to adhere to the requirements of the Rules and the Court's directions, but also that its objections to Mr Appleyard's report, of which it had not notified the plaintiff prior to the hearing as it had also been directed to do, should be heard and determined before it was required to call any of its evidence and before the experts met to produce a joint report. 29That was an approach which could simply not be acceded to, consistently with the dictates of justice. The requirements of the Civil Procedure Act 30The conclusions which I reached about these various matters had to be considered in light of the requirements of s 56 of the Civil Procedure Act, which obliges the Court to exercise its powers to 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings'. The parties are obliged by s 56(3) and (3A) to: "(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) A party to a civil dispute or civil proceedings is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose." 31Section 58 requires that the Court act in accordance the dictates of justice, having in mind: "2(i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case." 32These considerations all led to the conclusion that the amendment to the statement of claim had to be permitted and the hearing adjourned. The plaintiff also required the opportunity to have its expert consider the newly advanced explanation for the collapse. 33The defendant's final position was that if leave to amend was granted and the hearing adjourned, it would need an opportunity to consider whether it needed to lead further evidence to meet this new aspect of the plaintiff's case. In the result I granted the leave sought and adjourned the hearing, giving further directions as to preparation of the matter, to which the parties agreed. 34Costs have been reserved. ********** 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: 27 April 2012