Raskopoulos v Jensen Laundry Systems Australia Pty Limited

1. [1]

   In these proceedings the plaintiff sues the first defendant for damages in respect of injuries sustained in an incident in May 2008. In short, the plaintiff was employed in a commercial laundry when she was crushed between two machines. One of those machines, an ironing machine, was fixed. The other, a feeding machine into which fabric was fed for the purposes of then being ironed, was not fixed. It is alleged by the plaintiff that the feeder machine moved without warning, thus crushing her between the two machines and causing her injury.

2. [2]

   The proceedings are listed for hearing in this Court commencing on Monday, 4 May 2015 with an estimate of two weeks.

The notice of motion

1. [3]

   By notice of motion filed on 7 April 2015 the plaintiff seeks leave to file an amended statement of claim. The order sought is opposed by the first defendant. The second defendant has taken no active part in the proceedings and in the course of reviewing the material I read a reference to the fact that the second defendant has apparently not been served.

2. [4]

   Two affidavits were read in support of the notice of motion. The first was an affidavit of Courtenay Poulden, solicitor, of 7 April 2015. The second was also an affidavit of Mr Poulden of 13 April 2015. Both affidavits were read without objection. In addition, two expert reports were tendered to the Court, the first of Mr Underwood of 7 August 2009 and the second of Mr Buckland of 2 October 2012. I will refer to aspects of those reports later in this judgment.

3. [5]

   Annexure D to the affidavit of Mr Poulden of 7 April 2015 contains a copy of the proposed amended statement of claim. The effect of the proposed amendments are as follows. Firstly, particulars g and p are abandoned. Secondly, paragraph 9 which alleges breaches of the Occupational Health and Safety Regulations, and which makes claims pursuant to the Trade Practices Act 1974 and the Fair Trading Act 1987 is abandoned. The first defendant obviously takes no objection to those amendments.

4. [6]

   However the proposed amended statement of claim also seeks to add three further particulars of negligence to the existing paragraph 8, namely subparagraphs (h), (i) and (j) and which are in the following terms:

5. [7]

   It is accepted by the plaintiff that the matters sought to be pleaded in those three paragraphs were not identified in particulars previously provided to the first defendant. It is also accepted that those matters were not referred to, at least in express terms, in either of the expert reports tendered before me. That said, counsel for the plaintiff took me to various parts of those expert reports in support of a submission that although not expressly referred to, there were references in at least one of the reports to matters relevant to the proposed particulars (h), (i) and (j).

Submissions of the parties

1. [8]

   Counsel for the plaintiff submitted that the two expert reports, particularly that of Mr Underwood, contemplated devices such as those pleaded in the proposed amendments. He submitted that in these circumstances the relevant expert(s) retained on behalf of the first defendant would be in a position to respond to the proposed amendments without any prejudice to the position of the first defendant at the hearing.

2. [9]

   Counsel for the plaintiff also took me to the content of e-mail correspondence between a Mr Aubrey of the first defendant and a Mr Hansen of the Jensen Corporation in Denmark in which safety mechanisms were discussed in the days following the accident. In particular, counsel took me to an e-mail sent from Mr Aubrey of 12 May 2008 to a number of persons in Denmark in which he stated, amongst other things, the following:

3. [10]

   There was then further correspondence between Mr Aubrey and others. On 15 May 2008 he forwarded an e-mail to Mr Hansen which was in, (inter alia) the following terms:

4. [11]

   Those e-mail exchanges were relied upon by counsel for the plaintiff in support of the proposition that their content revealed a discussion which took place immediately following the accident about the possibility of installing the very type of mechanism(s) referred to in the proposed amended pleadings. Counsel for the plaintiff submitted that in these circumstances the suggested necessity for the inclusion for such a mechanism was not novel.

5. [12]

   Counsel for the plaintiff also relied upon the fact that the hearing date is more than two weeks away and that the expert conclave has not yet been convened. He submitted that in these circumstances there was more than ample time for the experts to confer, and for the first defendant to address through any expert the proposed amended pleading.

6. [13]

   Senior Counsel for the first defendant submitted that the references in the e-mail exchanges to which I was taken reflected little more than a discussion having taken place about possible safety mechanisms, in circumstances where the first defendant was not responsible for either the design or the manufacture of the machine. He submitted that in those circumstances the e-mail exchanges were of little consequence in determining whether or not the orders sought in the present notice of motion should be granted.

7. [14]

   Senior counsel also took me to the contents of part of a letter of 11 March 2015 written by his instructing solicitor to the solicitor for the plaintiff. In particular, senior counsel relied on paragraph 4.1 of that correspondence which is in the following terms:

8. [15]

   The contents of that paragraph encapsulate, at least in part, the first defendant's opposition to the present notice of motion.

9. [16]

   Senior counsel also took me to various passages of the judgment of McHugh J in Swain v Waverley Municipal Council (2005) HCA 4, (2005) 213 ALR 249. In particular, Senior Counsel relied upon his Honour's observations (at [41]) that a plaintiff in proceedings such as this must provide at least some evidence from which a tribunal of fact can find that the proposed alternative is a practical one that was reasonably open to the defendant in all of the circumstances. Senior Counsel also placed particular reliance on that part of paragraph [45] of his Honour's judgment where he observed that a mere allegation that a precaution is practicable is insufficient where the evaluation of whether or not the precaution is practicable involves issues of technical knowledge and experience.

10. [17]

    By reference to these paragraphs senior counsel relied, amongst other things, upon the lateness of the time at which the present application had been made. He submitted that those with the relevant technical expertise who were retained by the first defendant would not, absent further information being provided, be able to properly evaluate the particulars and meet the case which was now sought to be brought.

11. [18]

    Senior Counsel also submitted that in the circumstances of the present case, bearing in mind that it was not responsible for the manufacture or design of the machine, the first defendant would necessarily be required to enquire of others about the practicality of taking the steps suggested in by paragraphs (h), (i) and (j). In all of these circumstances senior counsel submitted that the proposed amendments had the effect of presenting a different case to that which had originally been pleaded, and that they should not be permitted.

Consideration

1. [19]

   The power to order an amendment of the nature of that sought by the plaintiff is contained in section 64 of the Civil Procedure Act 2005. That power extends to the amendment of particulars. As a general proposition, leave to amend particulars will usually be granted where the amendment is in accordance with the substance of the pleadings: Clarapede v Commercial Union Association (1883) 32 WR 262. Further, and again as a general proposition, leave will usually be granted where the amendment is in accordance with evidence which has been given: Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446.

2. [20]

   The e-mail exchanges to which I was taken in the course of submissions do not, in my view, provide any real comfort to the plaintiff on the present application. As I observed in the course of the hearing, it is not for a defendant to guess from the content of dialogue buried within material produced on subpoena what the case against it might be.

3. [21]

   However the amendments sought are not inconsistent with the substance of the pleadings as they were originally framed. In particular, paragraph 8(c) asserts, as a particular, a failure to provide any adequate stop or safety switch proximate to a person in the position of the plaintiff. Particular 8(n) asserts a failure to ensure that the machine did not move forward without operator involvement.

4. [22]

   Similarly, I am satisfied having read the two expert reports which have been tendered on the present application that the proposed amendments are not inconsistent with matters already raised in the expert evidence which has been served by the plaintiff. True it is that neither of the experts have squarely addressed the issues raised by the amendments. However, there are two paragraphs in the report of Mr Underwood which, in my view, could be said to deal with those issues in general terms.

5. [23]

   Firstly, in paragraph 45 of his report Mr Underwood stated the following:

6. [24]

   In paragraph 50 of the same report, Mr Underwood stated the following:

7. [25]

   It will be apparent from a reading of those paragraphs that the general issue raised by the proposed amended pleadings has been the source of comment and observation by at least one expert.

8. [26]

   I am told that at this stage no expert conclave has taken place. It seems to me that in all of the circumstances, it is reasonable to conclude that any expert conclave can properly address any matters which are raised by the amendments in a way which will ensure that the first defendant is not prejudiced.

(DISCUSSION AS TO ORDERS)

1. [27]

   Accordingly for those reasons, I make the following orders:

   1. (1)

      Click here to enter text.I grant leave to the plaintiff to file an amended statement of claim:

   2. (2)

      I direct the plaintiff to file and serve the amended Statement of Claim in accordance with order (1) by 4pm on 16 April 2015.

   3. (3)

      The plaintiff is to pay the first defendant’s costs of the notice of motion including the costs thrown away by virtue of the amendments which I have allowed. I further order that the plaintiff pay the first defendant’s costs of the notice of motion filed on 2 April 2015.

   4. (4)

      The plaintiff is to provide the following to the first defendant by 17 April 2015:

   5. (5)

      The parties have liberty to restore the matter to the list on 24hours notice by contacting my associate.

   6. (6)

      Any further expert evidence to be relied upon by the plaintiff arising out of the amendments to the statement of claim is to be served by 5pm on Monday 20 April 2015.

   7. (7)

      Any further expert evidence in reply is to be served by the first defendant by 5pm on Friday 24 April 2015.