Detheridge as Executrix of the Estate of the late Brian Leslie Wells v Chubb Fire Safety Limited and Perisher Blue Pty Limited [2012] ACTSC 1 (13 January 2012)

Last Updated: 13 January 2012

VICKI DETHERIDGE AS EXECUTRIX OF THE ESTATE OF THE LATE BRIAN LESLIE WELLS v CHUBB FIRE SAFETY LIMITED AND PERISHER BLUE PTY LIMITED

[2012] ACTSC 1 (13 January 2012)

PRACTICE AND PROCEDURE – pleadings – particulars – sought after lengthy delay and after filing of certificate of readiness – application for particulars refused.

PRACTICE AND PROCEDURE – pleadings – party seeking order requiring another party to amend its pleading – whether power to order – lengthy delay in applying – after filing of certificate of readiness – application refused.

Court Procedures Rules 2006, rr, 21, 53, 425

Workers Compensation Act 1951

Canberra Data Centres Pty Limited v Vibe Constructions (ACT) Pty Limited [2010] ACTSC 20

No. SC 311 of 2009

Judge: Master Harper

Supreme Court of the ACT

Date: 13 January 2012

IN THE SUPREME COURT OF THE )

) No. SC 311 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VICKI DETHERIDGE AS EXECUTRIX OF THE ESTATE OF THE LATE BRIAN LESLIE WELLS

Plaintiff

AND: CHUBB FIRE SAFETY LIMITED

Defendant

AND: PERISHER BLUE PTY LIMITED

Second Defendant

ORDER

Judge: Master Harper

Date: 13 January 2012

Place: Canberra

THE COURT ORDERS THAT:

1. the first defendant’s application dated 29 April 2011 be dismissed.

2. the second defendant’s application dated 2 May 2011 be dismissed.

3. the costs of both applications be the plaintiff’s costs in the cause.

1. There are before the court applications by each of the defendants seeking orders against the other, in this action for damages for personal injury. The action is listed for hearing on 20 February 2012.
2. The first defendant’s application seeks an order that the second defendant provide further and better particulars of the statement of claim accompanying the second defendant’s notice claiming contribution or indemnity from the first defendant. The second defendant in its application asks the court to order the first defendant to file and serve a further amended statement of its claim for contribution or indemnity against the second defendant. Neither application involves the plaintiff. The applications were heard together, and the plaintiff did not participate in the hearing.
3. The man who allegedly suffered personal injury died before proceedings were commenced. The plaintiff sues as executrix of his estate.
4. The plaintiff does not allege that the death of the deceased was caused by the injury. The allegation is that whilst the plaintiff was working in the sprinkler valve room at the Bullocks Flat railway station, a battery exploded, causing damage to the plaintiff’s hearing. No direct physical impact injury is claimed.
5. The plaintiff was employed by the first defendant. The second defendant was the owner and occupier of the Skitube railway, the Bullocks Flat Station, the sprinkler valve room and its contents including the battery.
6. Pursuant to a contractual arrangement between the defendants, it was the responsibility of the first defendant to provide security and fire safety services. These included periodic checking of the working of the sprinkler system. Although it is not clear from the pleadings or particulars, or the evidence on the applications, I take it that the purpose of the sprinkler system was to spray water from the ceilings of the various buildings constituting the railway station in the event of a fire. I also take it that the sprinkler system was principally powered by electricity and that the battery which exploded was part of a fallback system in the event of an electrical failure. The purpose of the battery was to provide power to a starter motor for a diesel engine which, I take it, was to provide power to the sprinkler system in the event of failure of the mains electricity supply.
7. The plaintiff commenced the present action, against the first defendant only, in March 2009. As required by the Court Procedures Rules 2006, rule 53, the plaintiff’s statement of claim followed a prescribed form rather than being in the style of a traditional pleading. The plaintiff asserted that the first defendant operated a security and fire safety business from premises in Fyshwick in the Australian Capital Territory, and that the deceased was employed by the defendant as a fire safety mechanic. It was asserted that he was based in Canberra and was a worker of the Territory for the purposes of the Workers Compensation Act 1951. He was required as part of his job to attend the Perisher Blue Ski Resort, including the Bullocks Flat Station, about once a month, in connection with maintenance of the fire sprinklers. Part of this task was the starting of a motor driving a pump. As the deceased started the pump, suddenly and without warning the battery exploded causing him acoustic trauma.
8. In the originating claim the plaintiff claimed damages for breach of contract. He did not make any claim in negligence. The plaintiff pleaded that it was a term of the contract of employment between the deceased and the first defendant that the first defendant would take all reasonable precautions for his safety, and would not expose him to a risk of injury of which it knew or should have known. It was a further term that the first defendant would take all reasonable measures to ensure that the deceased’s workplace was safe, that it would provide and maintain suitable and safe plant and equipment for him, and that it would provide and maintain a proper and safe system of work. The plaintiff then asserted that the first defendant committed breaches of those terms of the contract of employment. Further particulars of breach of contract included failure to carry out a risk assessment, failure to implement risk control strategies, and failure to train the deceased adequately for his work.
9. In May 2009 the first defendant joined the present second defendant as a third party. The third party claim was framed in contract and in negligence. It asserted an agreement to provide fire safety services, including services in the sprinkler valve room. It is asserted that the third party owned, controlled, occupied and was responsible for the room and for the diesel pump and battery in it, and responsible for ensuring that persons using the room were not exposed to danger resulting from operation of the pump. The third party was in addition responsible for ensuring that the battery was adequate, suitable and the correct size (any claim based on the inadequacy of the size of the battery has since been abandoned). Particulars of the negligence and breach of contract of the present second defendant included failure to inspect the battery, failure to undertake a risk assessment and failure to ensure that the battery was not liable to explode.
10. The third party, now the second defendant, filed a defence to the third party claim saying that it was the first defendant which was responsible for regular inspection and maintenance of the battery and reporting of any defects to the second defendant, and that it was the first defendant rather than the second defendant which was relevantly responsible for the instruction and supervision of the deceased.
11. In December 2009 the third party was on the plaintiff’s application joined as second defendant. In January 2010 the plaintiff filed an amended originating claim and statement of claim adding a count in negligence against the second defendant (though still not against the first defendant). The amended statement of claim effectively added to the original statement of claim the assertions against the second defendant which had been contained in the third party claim. Specifically a paragraph was added which, I assume in error, asserted that the second defendant owed the plaintiff a duty to take all reasonable care to ensure that the plaintiff did not suffer injury. It is clear that the intention of the drafter was to assert a duty of care by the second defendant to the deceased rather than to the plaintiff, and all parties have conducted the litigation subsequently to the filing of the amended originating claim on that footing.
12. In April 2010 the second defendant filed a notice claiming contribution or indemnity from the first defendant, asserting that at all material times the first defendant carried on business as a provider of security and fire safety services and in that capacity contracted with the second defendant to provide those services to the second defendant in respect of its fire protection systems at Bullocks Flat. The second defendant in the notice asserted that injury to the deceased had been caused by the negligence of the first defendant. The particulars of negligence were set out in virtually identical terms to the plaintiff’s particulars of breach of contract alleged against the first defendant in her statement of claim. Alternatively the notice claimed that the first defendant had been in breach of its contractual obligations to maintain the second defendant’s fire protection systems, specifically the batteries and chargers.
13. The first defendant filed a defence to the notice claiming contribution or indemnity in which, inter alia, it admitted the paragraph asserting that it had contracted with the second defendant to provide security and fire safety services in respect of the fire protection systems at Bullocks Flat.
14. In June 2010 the first defendant filed an amended defence to the plaintiff’s claim adding a defence of contributory negligence. Again, the defence asserted contributory negligence by the plaintiff, when what was intended was clearly to allege contributory negligence by the deceased. No one seems to have taken any point about this.
15. On 26 November 2010 the first defendant filed an amended statement of its claim for contribution or indemnity against the second defendant, adding further particulars of negligence or breach of contract. In brief the fresh allegations were that the second defendant had negligently installed the battery, or permitted it to be installed, in the sprinkler room in circumstances where it was to be trickle-feed charged on a constant basis, and was not enclosed in any way, and where the room was subject to significant heating, particularly during the winter. It was further asserted that the second defendant had undertaken responsibility for weekly checks of the battery required to be undertaken pursuant to a specified Australian Standard (additionally to the monthly checks undertaken by the first defendant) and had failed to conduct adequate checks to ensure that the electrolyte in the battery did not evaporate to a point where the battery was at risk of exploding. Finally, it was said that the second defendant had failed to respond adequately to a note by one of its maintenance staff on 7 August 2006 that “batteries in the sprinkler room need some work”.
16. In December 2010 a certificate of readiness was prepared by the plaintiff’s solicitors. The certificate, in the prescribed form, contained three columns for comments by each of the parties on twenty-two items. The columns for the defendants were completed in handwriting. The certificate was signed by the solicitor for the plaintiff on 14 December 2010, the solicitor for the first defendant on 17 December 2010 and the solicitor for the second defendant on 24 December 2010. It was filed on 11 January 2011. The solicitors, as required by the prescribed form, certified that the action was ready for trial, and that pleadings had been completed and filed, and pleadings had closed. Somewhat unusually, the solicitor for the second defendant in relation to the second item (“all particulars requested have been provided”) commented in the negative. The sixth item (“all required answers to interrogatories have been provided”) was answered in the affirmative only by the first defendant. The plaintiff and the second defendant both answered in the negative. I would not have expected, and solicitors should generally not expect, registry staff to check each item of a certificate of readiness to make sure that it really is what it purports to be. Registry staff should not, and cannot, be expected to go beyond the certification at the commencement of the certificate of readiness by the solicitors that the action is ready for trial.
17. On 12 January 2011, the day after the certificate of readiness was filed, the solicitors for the second defendant made an application for further answers to interrogatories of the first defendant. Notwithstanding the assurance by the second defendant in the certificate that all pleadings had been completed and filed, on the following day, 12 January, the solicitors for the second defendant filed a document headed “Defence to amended statement of claim”. It is apparent only from a detailed scrutiny of the document that it is intended to be a defence to the first defendant’s amended notice claiming contribution and indemnity, rather than a defence to the plaintiff’s claim.
18. The only amendment made by the first defendant in its amended notice claiming contribution or indemnity of 26 November 2010 was the addition of the particulars of negligence (particulars 10, 11 and 12 in that document) about the installation of the battery with constant trickle feed, failure to enclose it, and subjecting it to significant heating in the winter; failing to conduct weekly checks of the battery; and failing to respond to the note by maintenance staff in August 2006 about the batteries needing some work. All of the rest of the notice had been included in the original third party notice in May 2009, a defence to which had been filed in October 2009. The second defendant did not seek leave to amend, and should not in my opinion be permitted to amend, its defence to the claim by the first defendant, other than in relation to paragraphs 10, 11 and 12 of the particulars of negligence, which were indeed fresh allegations. To the extent that the document filed on 12 January 2011 purports to go beyond that, it should not be permitted to do so.
19. The second defendant’s application about answers to interrogatories came before me on 4 February and 11 February 2011. After a lengthy hearing I made orders ex tempore that certain further answers be provided, and this was subsequently done.
20. On 23 February 2011 the matter came before the Deputy Registrar and was listed for hearing before me on 20 February 2012 with an estimate of four days. Regrettably at the time of preparation of these reasons, it appears that there are two other actions listed for hearing ahead of it on that day, each with four-day estimates, so that its prospects of being reached do not appear high.
21. On 29 April 2011 the first defendant made the application presently before the court for particulars of the second defendant’s notice claiming contribution or indemnity of 20 April 2010. The particulars sought may be described as the usual further and better particulars of the making of a contract.
22. The paragraph of the notice claiming contribution or indemnity in which the contract was asserted reads as follows:
    4. At all material times the first defendant carried on business as a provider of security and fire safety services and in that capacity contracted with the second defendant to provide those services to the second defendant in respect of its fire protection systems located within the Premises.
23. In its defence to the notice dated 4 May 2010, the first defendant admitted the contents of paragraph four of the notice. With the benefit of hindsight, it is now apparent that the solicitors for the first defendant should have sought particulars of the contract before pleading to the paragraph. However, the fact is that they chose not to do so. It was almost a year before they sought the particulars and made the application, after the filing of a certificate of readiness and a fixing of a date for hearing of the action.
24. It is plain from the limited evidence, and the documents on the court file, that neither defendant is going to be in a position to produce a written contract which sets out precisely what each party agreed to do in relation to the fire safety services. It seems clear enough that there was some agreement between the parties and that its terms would have to be gleaned from a combination of fragments of documentation, and oral evidence of the recollections of employees or former employees of both companies about discussions and happenings many years ago. In the circumstances it does not seem to me that any injustice will be done to the first defendant by refusing the application at this stage. It was after all the first defendant which brought the second defendant into the action in the first place. The first defendant can expect that it will be required to adduce its evidence before the second defendant does so: those advising the second defendant may make a decision at the appropriate time that it need not go into evidence. There is no suggestion that either defendant has failed in its duty to discover all the relevant documents in its possession or control.
25. Accordingly I am not persuaded that the second defendant should be required to provide the particulars which the first defendant seeks.
26. On 2 May 2011 the second defendant filed its application now before the court, seeking an order that the first defendant file and serve a further amended statement of claim against the second defendant. The application is really based on a recognition that both defendants have fallen short of what they should have done in pleading what each of them says is the contract with the other.
27. Counsel for the second defendant has not taken me to any authority for the proposition that the court will, in an appropriate case, on the application of a party, oblige another party to file an amended pleading. A party which is served with a pleading which is bad has the right to apply to the court under rule 425 for an order that the pleading or part of it be struck out. The second defendant, then the third party, was served with a third party notice during 2009, and chose to file a defence to it, rather than applying to have it, or any part or it, struck out. The first defendant filed an amended notice claiming contribution or indemnity in November 2010. The only amendments of any substance were the addition of the three particulars of negligence I have mentioned previously. Again, the second defendant chose to file a defence to this document, rather than apply to have it, or part of it, struck out. The second defendant has still not asked that the amended notice claiming contribution or indemnity, or any part of it, be struck out.
28. The first defendant does not, as presently advised, seek to amend the notice any further.
29. It does not seem to me that the court has a power to order a party to amend a pleading on the application of another party. However, it is unnecessary for me to determine that question for the purpose of deciding the present application by the second defendant. Whether or not such a power exists, this is not an appropriate case, or an appropriate stage, for such a power to be exercised. The parties have pleaded the case in the manner they have chosen to do, and have certified to the court that the pleadings are complete and closed, and that the action is ready for trial. It should go to trial on those pleadings, notwithstanding that they may not be as elegant or as admirable as might be achieved in a perfect world. The functions of pleadings and particulars were analysed in considerable detail by Refshauge J in Canberra Data Centres Pty Limited v Vibe Constructions (ACT) Pty Limited [2010] ACTSC 20 commencing at [24]. His Honour referred in particular to pleading a contract at [57] and following. Notwithstanding some shortcomings in the present pleadings, I am reasonably satisfied that they will enable the court to achieve the just resolution of the real issues in the proceedings (see rule 21), and that it is best if the action goes to trial as soon as the court is able to hear it, without further interlocutory sparring.
30. The general expectation should be that leave will be granted to amend a pleading after the filing of a certificate of readiness only in exceptional circumstances.
31. Neither defendant has had any real measure of success on either application. It seems to me that the costs of the applications should lie where they fall except that the plaintiff, who has admirably stayed out of this fight and kept her costs to a minimum, should have such costs as she may have incurred in relation to the applications in the event that she ultimately achieves an order for costs of the action. The appropriate order, then, is that the costs of both applications are to be the plaintiff’s costs in the cause. Both applications will be dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 13 January 2012

Solicitors for the plaintiff: Slater & Gordon

Counsel for the first defendant: Mr RL Crowe SC

Solicitors for the first defendant: Sparke Helmore

Counsel for the second defendant: Mr RE Montgomery

Solicitors for the second defendant: Dibbs Barker

Date of hearing: 20 May 2011

Date of judgment: 13 January 2012