Weston v Wickham Freight Lines Pty Limited [2013] NSWSC 867

Supreme Court New South Wales

Medium Neutral Citation: Weston v Wickham Freight Lines Pty Limited [2013] NSWSC 867 Hearing dates: 26 June 2013 Decision date: 28 June 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Leave sought granted, together with an order for costs of the motion in favour of the plaintiff, as agreed or assessed. Catchwords: PROCEDURE - notice of motion - pleadings - leave sought to file amended statement of claim - alternative claim 'blameless accident' - leave granted - costs - reasons Legislation Cited: Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Cases Cited: Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 Bohemia Crystal Pty Ltd v Swarovski (1989) 95 FLR 46 Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd [2012] QSC 237; (2012) 61 MVR 534 Category: Procedural and other rulings Parties: Master Keiren Paul Weston by his tutor Peta Wilson (Plaintiff) Wickham Freight Lines Pty Limited (First Defendant) Anthony Phillip Butler (Second Defendant) Representation: Counsel: Mr G Ghabar (Plaintiff) Mr MA Cleary (Defendants) Solicitors: Watson McNamara & Watt Solicitors (Plaintiff) Curwoods, Solicitors (Defendants) File Number(s): 2011/229224 Publication restriction: None

Judgment 1The plaintiff's tutor commenced these proceedings by statement of claim filed in July 2011. By motion filed in June 2013, the plaintiff sought leave to file an amended statement of claim, to plead an alternative claim on the basis of a 'blameless accident' under the provisions of the Motor Accidents Compensation Act 1999. That leave was opposed, even when the proposed amendment was reframed in a document provided at the hearing, which clarified that the claim was put in the further alternative, as an injury resulting from a blameless accident in the event that the driver was found not to have been negligent. 2I granted the leave sought, indicating that I would the give reasons for doing so. They are as follows. 3The proceedings arise out of a motor vehicle accident which occurred in July 2008, when the plaintiff was struck by a prime mover driven by the second defendant, which was owned by the first defendant. The plaintiff was riding a bicycle and claims that he was struck while on a marked pedestrian crossing at the New England Highway at Uralla near Armidale. The plaintiff was then almost 11 years of age. 4In November 2011 the defendants' insurer sought leave to be joined as a party to the proceedings. By consent the motion was dismissed. 5The defendants' insurer disputed indemnity for the plaintiff's claim. These proceedings remained in abeyance pending resolution of that dispute. It was resolved against the insurer in Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd [2012] QSC 237; (2012) 61 MVR 534. 6In Axiak v Ingram [2012] NSWCA 311; (2012 82 NSWLR 36, the operation of the blameless accident provisions of the Motor Accidents Compensation Act were considered. Special leave to appeal that decision to the High Court was refused on 15 March 2013. The application to amend the statement of claim in these proceedings rests on this decision. 7It was conceded for the defendants that the finally proposed version of the amended statement of claim addressed, in a necessary way, a difficulty with the first proposed amended statement of claim, but still the leave sought was opposed. I was not convinced that this difficulty existed, given the terms of the existing statement of claim. 8The plaintiff's case was that the amendment raised no additional factual issues and was a necessary amendment, in order to determine all of the real issues lying between the parties on the pleaded facts. The statement of claim pleads that the driver of the vehicle was negligent, in a number of specified ways, given the way in which the accident occurred and that he failed to observe identified Road Rules. It also seeks special damages under s 7J of the Motor Accidents Compensation Act in the event that it is concluded that there was no fault by the driver. 9The alternative claim sought to be introduced is that of a blameless accident under s 7B of the Motor Accidents Compensation Act. The plaintiff's case is that as a matter of law, even if negligence is not established, he ought to recover on the basis dealt with in Axiak on the pleaded facts. The defendants' case was that the amendment sought to introduce a marked and illogical inconsistency with the claim of negligence presently advanced and that it raised a ground or claim inconsistent with those already advanced in the existing statement of claim. Accordingly, the amendment should not be permitted, given the provisions of Rule 14.18, which provides: "14.18 Pleadings to be consistent as to allegations of fact (cf SCR Part 15, rule 17; DCR Part 9, rule 12) (1) A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings. (2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative... " 10That approach to Rule 14.18 was submitted to be supported by the approach of Powell J in Bohemia Crystal Pty Ltd v Swarovski (1989) 95 FLR 46 where his Honour observed at 60 as to the pleading proposed in that case: "(1) It contains, not an allegation of fact, but an assertion of what is said to be the effect, in law, of assumed - but not pleaded - facts. (2) Further, it asserts, in a way which is said to be both cumulative, and in the alternative, several alleged consequences, ie invalidity, and susceptibility to be removed, the facts to support each of which allegations are essentially different. (3) Nor is the situation improved when one reads the further amended particulars of objection, since, if a fact is a material fact, it must be pleaded, and not left to be gleaned from the particulars. (4) While, although, technically, bad pleading, it is often convenient, when the facts are complex, to add, after a recitation of the material facts, an allegation, or assertion, of what the pleader claims to be the effect, in law, of the facts recited, it is not permissible for a pleader to omit the material facts and to rely merely on what he claims to be the effect of assumed facts." 11It seems to me that these observations do not assist the defendants. Rule 14.18 itself recognises that a party may pursue alternative factual allegations or claims. In this case the statement of claim already contains the allegations of fact on which the proposed further alternative claim would rest. They are neither complex nor assumed, but relatively straightforward and pleaded. On the basis of those facts the plaintiff wishes to pursue a blameless accident claim, in the event that the claimed negligence is not established. 12A 'blameless accident' is defined in s 7A of the Motor Accidents Compensation Act as: "A motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person." 13'Fault' is defined in s 3 to mean 'negligence or any other tort'. Division 2 deals with no-fault recovery by children. In Axiak, the child's fault for the accident was not considered to be a relevant consideration on the proper construction of the definition of s 7A. It was thus concluded that there could be recovery, even where a driver was blameless and the child had departed from the standard of care for her own safety which the law imposed upon her. It was concluded that in the circumstances there in question, even though the driver was blameless, there ought not to have been a finding of contributory negligence on the part of the child of 100 percent, but a finding of 50%. 14The plaintiff submitted that there was no inconsistency in the proposed pleading, which merely pleaded the legal consequence under the Motor Accidents Compensation Act of a potential finding on the pleaded facts, that the driver was not negligent as claimed. The amendment thus complied with the requirement imposed by the Rule 14.14(1), to plead in such a way that the defendants are not taken by surprise by a claim which the plaintiff wishes to pursue under that legislation, as it is now to be understood, given the decision in Axiak. 15It seemed to me that this submission had to be accepted. The further amended statement of claim finally pressed seeks to pursue a claim which may be at least partially inconsistent with the claim in negligence. The factual allegations on which the proposed alternative claim rests are not however, inconsistent, nor could their pursuit cause embarrassment or inconvenience in the circumstances. Even if the claimed negligence is not established by the plaintiff on the evidence, or if the defendants establish contributory negligence as the defence filed in November 2011 claims, it does not necessarily follow that the plaintiff will not be able to establish the proposed alternative case under the Motor Accidents Compensation Act, on the facts already pleaded, given the decision in Axiak. It follows that pursuit of that claim is encompassed by the provision made in Rule 14.18(2). 16Here, there was no issue as to the Court's power to grant the leave sought, particularly having in mind the provisions of s 56 and s 64 of the Civil Procedure Act 2005. 17There was no apparent prejudice flowing from the proposed amendment and in the circumstances, the dictates of justice seemed to me to require that the leave sought be granted, in order to ensure that all of the real issues lying between these parties are identified in the pleadings and resolved in the proceedings. 18In the result, the leave sought had to be granted, together with an order for costs of the motion in favour of the plaintiff, as agreed or assessed. I ordered accordingly.