Supreme Court New South Wales Medium Neutral Citation: Donaldson v Lion Nathan Pty Ltd [2017] NSWSC 926 Hearing dates: 10 July 2017 Date of orders: 12 July 2017 Decision date: 12 July 2016 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The third defendant's notice of motion filed 6 June 2017 is dismissed. (2) The third defendant is to pay the plaintiff's costs of the notice of motion filed 6 June 2017. Catchwords: PROCEDURE – notice of motion – pleadings – request for further particulars – notice of motion dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Part 15.10 Cases Cited: Al-Shennag v Statewide Roads Limited [2010] NSWSC 76 Gangi v Boral Resources (NSW) Pty Limited [2012] NSWSC 398 Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 Turner v State of New South Wales [2007] NSWSC 1081 Category: Procedural and other rulings Parties: Lois Donaldson (Plaintiff) Lion Nathan Pty Ltd (First Defendant) Lion – Beer, Sprits & Wine Pty Ltd (Second Defendant) Project Control Group Pty Ltd (Third Defendant) Representation: Counsel: K Balendra (Plaintiff) J A Gracie (Third Defendant) Solicitors: McCulloch and Buggy (Plaintiff) DLA Piper (Third Defendant) File Number(s): 2016/207457 Publication restriction: Nil Judgment 1. HER HONOUR: By notice of motion filed 6 June 2017, the third defendant Project Control Group Pty Ltd seeks an order that the plaintiff provide, within 7 days, the particulars sought at paragraphs 4.2, 4.3, 5, 6.1, 6.2 and 6.3 in the letter from DLA Piper Australia to McCulloch & Buggy Solicitors dated 1 August 2016. 2. The plaintiff is Lois Donaldson. The first defendant is Lion Nathan Pty Ltd. The second defendant is Lion – Beer, Sprits & Wine Pty Ltd. The third defendant is Project Control Group Pty Ltd ("Project Control"). This notice of motion concerns discovery between the plaintiff and third defendant only. 3. Project Control relied upon the affidavit of its solicitor Clancy O'Donovan dated 6 June 2017. The plaintiff relied upon the affidavit of her solicitor Joshua Lee Randall dated 6 July 2017. Background 1. The plaintiff was employed by Publicis Mojo ("Mojo") as its National Head of Strategy. On 12 July 2013 the plaintiff, during the course of her employment with Mojo, attended premises in York Street, Sydney ("the premises") to attend a meeting with representatives of the first and second defendants. While at the premises the plaintiff endeavoured to descend a set of internal stairs leading from level 7 to level 6 when she fell. 2. Project Control had been retained by the first defendant to design and construct the stairs and was responsible for the design and construction of the stairs. The plaintiff alleges that at the direction of the first and/or second defendant's representative, she was descending an internal staircase and fell due to the defective design, construction and/or condition of the staircase and that as a result of the defendants' negligence she suffered injury to her lower back; aggravation of asymptomatic lumbar spondylosis; aggravation of facet joint arthrosis at L4/5; injury to lumbar spinal discs with right formaminal stenosis and radiculopathy; annular tears of L4/5 to L5/S1 discs, requirement to undergo hemilaminectomy and L5/S1 foraminotomy and miscrodiscectomy in June 2014; requirement to undergo cortisone injections into lumbar spine; injury to right leg; injury to right knee; injury to left knee; injury to right ankle; injury to left ankle; injury to right hip and multiple bruising and abrasions. The relevant legislation - particulars Part 15.10 of the Uniform Civil Procedure Rules 2005 (NSW) relevantly reads: "15. 10 Order for particulars (cf SCR Part 16, rule 7; DCR Part 9, rule 26; LCR Part 8, rule 8) (1) The court may order a party to file: (a) particulars of any claim, defence or other matter stated in the party's pleading or in any affidavit relevant to the proceedings, or (b) a statement of the nature of the case on which the party relies, or … (2) Without limiting subrule (1), if a pleading alleges that a person had knowledge or notice of some fact, matter or thing, the court may order that party to file: (a) if the pleading alleges knowledge, particulars of the facts on which that party relies, and ..." 1. Counsel for Project Control referred to a number of authorities on particulars, Gangi v Boral Resources (NSW) Pty Limited [2012] NSWSC 398 ("Gangi"), Al-Shennag v Statewide Roads Limited [2010] NSWSC 76 ("Al-Shennag"), Turner v State of New South Wales [2007] NSWSC 1081 and Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 ("Garzo"). I shall refer to only two of these authorities. 2. In Al-Shennag, McCallum J set out the obligation to give all necessary particulars. Her Honour stated at [9] to [11]: "9 Mr Al-Shennag's third request invokes rules 14.14(2), 14.31(1) and 15.1(1) of the Uniform Civil Procedure Rules 2005. The relevant obligation is that contained in rule 15.1(1), which provides "a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet". 10 The content of that obligation must be determined having mandatory regard to the overriding purpose of the rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act 2005. 11 It is well recognised that there are restrictions on the detail that can properly be required by way of particulars. The critical task is to identify what is reasonably necessary to protect the other party against surprise: Sims v Wran [1984] 1 NSWLR 317 at 321G." 1. In Garzo, Garling J set out the requirements to supply particulars pursuant to the Civil Liability Act 2002 (NSW). His Honour stated at [59] to [64]: "59 But in a claim in negligence to which the Civil Liability Act applies, it is necessary that the pleading identifies and articulates the material facts upon which the plaintiff relies to establish each of the elements required by s 5B(1). 60 As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the "risk of harm" in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a Court in a position to determine the defendant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant's response, or lack of response, to that risk, thereby avoiding the type of error discussed by Gummow J in RTA v Dederer (2007) 234 CLR 330 at [59]-[61]. 61 A proper pleading will also need to plead whether it is part of the plaintiff's case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable (s 5B(1)(a)), or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided. A defendant would then be in a position to fully plead to such allegation. 62 Authorities suggest that there may be cases where, at least arguably, s 5B may not apply: see Drinkwater v Howarth [2006] NSWCA 222 at [11]- [13]; Refrigerated Roadways at [173]. It is unnecessary for me to express any view in this case as to a resolution of the apparent tension between these remarks and the judgment of the High Court of Australia in Adeels Palace at [27], because this case is one to which s 5B clearly applies, as all the parties accepted. Identifying the Relevant Risk of Harm 63 A central concept and one with which the analysis commences is the identification of "a risk of harm" against which the plaintiff, here Mrs Garzo, alleges a defendant would be negligent for failing to take precautions. Harm in this expression includes personal injury. Gummow J, in Dederer at [59]-[61] clearly demonstrates that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made. 64 As a real and practical matter, where a Court is considering any of the essential steps in s 5B(1), it must do so against the identified risk of harm. It is a matter of common experience in common law claims, that in any given set of factual circumstances, there are a number of risks of harm which can be identified. Unless the risk of harm being relied upon is clearly identified then it will not be possible to identify what steps ought reasonably to have been taken by a defendant to address the risk. Nor will it be possible for a Court to determine what the application of reasonable care required." Particulars to be supplied 1. Project Control seeks particulars of paragraphs 7, 9 and 10 of the statement of claim ("S/C"). The outstanding particulars are set out in a letter from the Projects Control's solicitors to the plaintiff's solicitors dated 1 August 2016. Paragraph 7 1. Paragraph 7 of the S/C pleads: "7. Whilst on the premises the Plaintiff endeavoured to descend a set of internal stairs leading from level 7 to level 6 (the Stairs) when she fell (the Fall). 1. As to paragraph 7, Project Control seeks the following particulars: "4.2 where exactly on the stairs from level 7 to level 6 was the plaintiff when the fall initiated – on the basis the plaintiff was descending from level 7, how many steps had she taken down the stairs prior to the commencement of the Fall? 4.3 what, physically, caused the plaintiff to fall – for example, did she slip on a substance, overstep the edge of the stairs etc?" 1. The plaintiff in her evidentiary statement dated 7 February 2017, deposes at [7] to [12]: "7 At approximately 1:00 pm on 12th July 2013, I attended premises at Level 7, 68 York Street, Sydney, NSW (the premises). I attended the premises on behalf of Mojo for a meeting with the first and/or Second Defendants. I was wearing rubber soled heels. 8 Upon arrival at the premises, I sat in the reception area and waited for the representatives of the First and/or Second Defendants to take me into a meeting room so that the meeting could commence. 9 I was informed by the representatives of the First and/or Second Defendants that the meeting would take place on Level 6. From my experience, it was very usual for meetings to take place on Level 6 and, on the few occasions I had attended a meeting there, I had accessed the floor by the elevator. 10 To reach Level 6, I was required to descend an internal staircase within the premises (the staircase). I recall being asked to follow 2 of the First and/or Second Defendants' representatives down the staircase. 11 As I went to descend the staircase, I lost my footing near the top of the staircase and fell. 12 To the best of my recollection, I fell forwards onto my knees and then tumbled over onto my head and rolled down the stairs before landing on my back at the middle landing, at the bottom of the first flight of stairs." 1. So far as particulars 4.2 and 4.3 are concerned, by letter dated 10 July 2017 (the date of this hearing) the plaintiff's solicitors wrote to Project Control's solicitors stating: "You have requested that we particularise the mechanism of our client's fall. Our response is as follows: As she began to descend the stairs from the level 7 landing she lost her footing and fell. The Plaintiff is not sure of the precise mechanism of her fall due to the shock and trauma of the incident. However doing the best she can the Plaintiff felt that the stair just disappeared beneath her and her foot slipped and she fell forward down the stairs onto her knees before rolling to the next landing." (Ex A). 1. From the plaintiff's statement and her response in this recent letter, it is my view that she is not in a position to provide any more particulars on this topic. The plaintiff is not sure of the mechanism of her fall due to the shock and trauma she suffered. She can do no more. Hence, it is my view that the third defendant has the best particulars the plaintiff can produce so as to protect the third defendant, who installed the stairs, against surprise. The plaintiff is not required to provide particulars in accordance with paragraphs 4.2 and 4.3 of the request for particulars. Particulars 5 and 6 1. On 4 May 2006 Wotton & Kearney, the solicitors for the second defendant, wrote to McCulloch & Buggy stating: "In respect of liability, we note that Lion arranged the installation of the stairs as part of its fit out of the premises. The stairs were installed by PCG [the Third Defendant][ in or about 2008. No pre-incident or post incident alterations have been made to the stairs by our client. Your client alleges that she fell from stair number 10, being the top step on level 7, at a point where she had not yet negotiated the stairs." (Annexure A, Aff Randall, 06/07/2017). 1. On 1 August 2016, McCulloch & Buggy received a letter from Project Control's solicitors DLA Piper Australia dated 1 August 2016. It stated: "As you will appreciate, our client was retained by the first defendant by way of contract in 2008 to undertake certain works. Those works were completed a number of years before your client's fall and therefore our client has no understanding as to the circumstances surrounding the incident, alleged injuries sustained and the impact on your client. In the circumstances, we seek the following particulars of the Statement of Claim." (Annexure B, Aff Randall, 06/07/2017). 1. Two relevant documents have been produced on subpoena. A schedule (Ex B) that is undated, sets out the following information in relation to level 7 of the premises as follows: ISSUE/COMPLIANCE CLAUSE RESULT COMMENTS BCA Tread (going) dimensions NON-COMPLIANT Several treads were measured slightly below the minimum permitted dimension of 250mm, one in particular at the landing to Level 7 was measured at 195mm BCA Riser and going formula NON-COMPLIANT Several goings are already outside of the permitted range used for the formula regardless of the result, therefore it is a non-compliance BCA Consistency of riser height NON-COMPLIANT The top riser at the Level 7 landing is 170mm and well short of the 185-190mm average on that flight BCA Consistency of going width NON-COMPLIANT Variation between 195-255mm was measured in the flight BCA Openings in the flight NON-COMPLIANT Gaps to all floors and mid-landings to the first riser of every flight measure 135mm which is above maximum of 125mm BCA Slip resistant nosing LIKELY NON-COMPLIANT Slip resistance measurement may need to be carried out to confirm, but the installed nosings only appear to offer a marginal improvement to the slip resistance of the tread material (an already slippery vinyl) 1. There are three further columns in that schedule that are headed "Action", "Responsibility" and "Time Frame". They are all left blank. It appears that this schedule may have been prepared by Beca Engineering Consultants, on a date after the accident and within six months of the incident: see letter from second defendant's solicitors to the plaintiff's solicitor dated 8 June 2017. (Annexure J, Aff Randall 06/07/2017). The third defendant has a copy of this document. 2. There is a further document headed "Lion York St, Stair remedial works" also undated. (Annexure F, Aff Randall 06/07/2017). It appears to set out a draft schedule of the works to be undertaken and cover the period from 4 September 2013 and 22 September 2013. 3. The plaintiff is intending to serve an expert report on liability. On 27 April 2017, she was ordered to serve such a report on or before 27 July 2017. Paragraph 9 1. Paragraph 9 of the S/C pleads: "9. The Stairs posed a risk of harm: (a) which was foreseeable and was a risk of which each of the Defendants knew or ought to have known; (b) which was not insignificant; (c) which a reasonable person in the position of each of the Defendants would have taken precautions against the risk of harm." 1. As to paragraph 9, Project Control seek the following particulars: "5 In paragraph 9 of the Statement of Claim it is pleaded the stairs posed a risk of harm. Please particularise the physical characteristics of the stairs which created the alleged risk of harm." Paragraph 10 1. Paragraph 10 of the statement of claim pleads: "10. The Fall was caused by the negligence of the Defendants Particulars of Negligence (a) Failing to take any or any reasonable care for the safety of the Plaintiff. (b) Failing to exercise any or any reasonable care for the safety of persons such as the Plaintiff, entering the premises. (c) Failing to ensure the Stairs was properly designed and constructed. (d) Allowing the defective Stairs to remain in place. (e) Failing to have the defective Stairs rectified. (f) Failing to barricade or otherwise stop access to the Stairs. (g) Failing to take adequate action in response to persons falling on the stairs prior to the Plaintiff's incident. (h) Exposing the Plaintiff to a known risk of injury. (i) Falling to warn the Plaintiff of the defective Stairs. (j) Failing to ensure the Stairs were properly constructed in compliance with all relevant Australian standards, Building codes and other design standards." 1. As to paragraph 10, Project Control seek the following particulars: "6 In paragraph 10 of the Statement of Claim it is alleged the fall was caused by the negligence of the defendants (collectively) please particularise the following: 6.1 the physical characteristics of the stairs which the plaintiff says reflects the fact they were not properly designed and constructed; 6.2 the physical characteristics of the stairs which meant they were not in compliance with all relevant Australian Standards, Building Codes and other design standards; and 6.3 the rectification of the stairs necessary so as to eliminate any defect in them." 1. While the plaintiff's solicitor has set out some information (see Ex B), without the benefit of an expert's report, it is my view that they are not in a position to answer particulars 5 and 6. The expert's report on liability should address the allegations of defective stairs, physical characteristics of the stairs that reflect that they were not properly designed and constructed and rectified and the risk of harm. Hence, I do not make an order that the plaintiff answer particulars 5 and 6. The result is that the third defendant's notice of motion filed 6 June 2017 is dismissed. 2. Costs are discretionary. Costs usually follow the event. Even though the plaintiff's solicitor furnished a letter to the third defendant's solicitor on the morning of the hearing that provided some information in relation to particulars 4.2 and 4.3, the third defendant was largely unsuccessful. The third defendant is to pay the plaintiff's costs of the notice of motion filed 6 June 2017. The Court orders that: (1) The third defendant's notice of motion filed 6 June 2017 is dismissed. (2) The third defendant is to pay the plaintiff's costs of the notice of motion filed 6 June 2017. ********** 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: 14 July 2017