Donaldson v Lion Nathan Pty Ltd

1. [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. [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. [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. [4]

   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. [5]

   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

1. [6]

   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. [7]

   In Al-Shennag, McCallum J set out the obligation to give all necessary particulars. Her Honour stated at [9] to [11]:

3. [8]

   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]:

Particulars to be supplied

1. [9]

   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. [10]

   Paragraph 7 of the S/C pleads:

2. [11]

   As to paragraph 7, Project Control seeks the following particulars:

3. [12]

   The plaintiff in her evidentiary statement dated 7 February 2017, deposes at [7] to [12]:

4. [13]

   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:

5. [14]

   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. [15]

   On 4 May 2006 Wotton & Kearney, the solicitors for the second defendant, wrote to McCulloch & Buggy stating:

2. [16]

   On 1 August 2016, McCulloch & Buggy received a letter from Project Control’s solicitors DLA Piper Australia dated 1 August 2016. It stated:

3. [17]

   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:

4. [18]

   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.

5. [19]

   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.

6. [20]

   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. [21]

   Paragraph 9 of the S/C pleads:

2. [22]

   As to paragraph 9, Project Control seek the following particulars:

Paragraph 10

1. [23]

   Paragraph 10 of the statement of claim pleads:

2. [24]

   As to paragraph 10, Project Control seek the following particulars:

3. [25]

   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.

4. [26]

   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.