HER HONOUR: The plaintiff, by Amended Statement of Claim filed on 11 September 2015, brings proceedings for damages for the circumstances in which she suffered injury on 23 March 2014 when she attended the Great Moscow Circus at Hoxton Park in New South Wales.
The circumstances of the accident were as follows. The plaintiff and her family attended a circus performance which was held in what is called, in the statement of claim, a "big top". They entered from comparative daylight into pitch dark. According to the plaintiff's evidence, it was impossible to see what was happening in the tent. Although the Amended Statement of Claim refers to the plaintiff and her family being "ushered" to the seating area of the arena, she explained that there was in fact nobody there to guide them and there was no specifically designated seating. They simply had to go forward in the dark.
The seating is described in the statement of claim as being "wooden planks on scaffolding", with the planks in question being "free standing". The plaintiff had to use these planks as steps in order to reach her seat, which was about four rows up.
In the pitch dark and with no‑one to guide her, the plaintiff moved forward as best she could. While attempting to ascend the plank steps (which appeared to have been some distance apart), her right shin struck the plank. She fell forward and sustained what is clearly a significant injury to her nose and forehead, as she struck not only the step but also the large nail which was protruding from that step. By reason of the way she fell, this nail hit her on the bridge of her nose, causing her sunglasses to fall off through the gap in the planks and onto the ground below.
The height between the steps was approximately 40 centimetres. This distance and the poor lighting were the reasons for the plaintiff's fall.
The defendant, who is identified in the Amended Statement of Claim as being Weber Bros Circus & Logistics Pty Ltd, has filed a defence, but it contains serious deficiencies. An application was brought at the commencement of this hearing for it to proceed by way of assessment, by reason of the following failures to plead:
1. First, the Defence fails to disclose any reasonable grounds, for the reasons set out below;
2. Second, by reason of the failure to prosecute which results in the defendant not being represented at all; and
3. Third, the differences in name for the defendant, particularly in the affidavit verifying the Defence.
I shall first deal with the absence of the defendant. The defendant was called three times outside the court and did not appear, which is hardly surprising since, apart from one appearance by a barrister and a participation of settlement conference, the defendant has in fact not appeared on any of the occasions that these matters have been in court.
The circumstances in which a hearing can proceed in the absence of the defendant are set out in r 29.7 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), which provides:
"29.7 Procedure to be followed if party is absent
(1) This rule applies when a trial is called on.
(2) If any party is absent, the court:
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of:
(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and
(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs.
(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.
(5) Subrules (3) and (4) do not limit the court's powers under subrule (2)."
Rule 29.7 UCPR applies when the hearing is called and any party is absent. In those circumstances where the court is satisfied (as I am here, by reason of the affidavits of service, which are Exhibits B and C) that the defendant has been notified of the hearing, the court may proceed with the trial generally and deal with the claims of relief in the proceedings. The plaintiff may then prove her claim in order to comply with the burden of proof lying upon her and that she is entitled to such relief as she claimed and any other relief consistent with that which is sought.
The judgments referred to in the notes to r 29.7 UCPR set out in P. Taylor, Dr E. Elms, M. Meek SC, The Hon Justice G. Bellew, Ritchie's Uniform Civil Procedure NSW (LexisNexis, Australia) (referring, among other cases to Stone v Smith (1887) 35 Ch D 188), are of some antiquity. The fact that there are no recent cases suggests firstly that this is a procedure of long standing and second, that it is not a contentious provision. This is because any defendant who does not come to the court to defend his or her case cannot look to the court to make excuses for them or to run that case in their absence.
However, that does not mean that I should not be alert to obligations which are owed to the party which is not present. I note the helpful discussion of the relevant principles by Barrett J in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365. With those obligations in mind, I have put questions to Mr Campbell about issues relevant to the summary dismissal application he has brought, as well as to the assessment of damages which has followed his successful application. I have asked him for certain documents and indeed have asked him to tender certain documents not only in relation to the absence of the defendant but also about the relevant matters in relation to the application for summary judgment and the plaintiff's ongoing injuries and disabilities.
Ultimately, however, as Barrett J noted in Satz v ACN 069 808 957 Pty Ltd at [64], in an adversarial system the responsibility for conduct of a case rests with the parties concerned.
I note in particular that this is a corporate defendant which runs a reasonably substantial business and is not under any disability or lack of understanding as to what is occurring.
The next issue is the question of the basis upon which the proceedings should be dismissed. There are three bases for the dismissal which are summarised as follows:
1. Mr Campbell submits that pursuant to r 12.7 UCPR there is a failure to prosecute in that the defendant is not here to prosecute the case.
2. The contents of the Defence which would appear not to disclose any proper grounds of defence.
3. It is at least arguable that the Defence has been if not filed, certainly purports to have been filed by another company, namely, Weber Bros Entertainment Pty Ltd, a company of which it would appear that Mrs Marie Weber and a Mr Harry Weber are authorised officers and I also note that there has been a failure to fill out the affidavit verifying the Defence which is a prerequisite where defences are filed.
I shall deal with each of these in turn.
Under r 12.7 UCPR, the court may dismiss proceedings or strike out pleadings for want of due progress. This is not a course of action which is confined by rigid guidelines but it must be exercised with caution and only in the very clearest of case where the initiating factor has been delay. While delay is the threshold requirement, delay is a relevant consequence and the significance of a delay must depend upon the circumstances of the case. In recent years, there has been an increasing importance placed upon delay, having regard to the provisions of s 61 Civil Procedure Act 2005 (NSW) by reason of, if not proportionality in relation to costs, the desirability of cases being dealt with within a reasonable time framework.
The plaintiff did in fact bring applications for summary judgment and for the hearing of these proceedings as an assessment, which were set down for hearing on 24 May 2016. While the circumstances in which that assessment did not proceed are not clear, it was in these circumstances that the defendant filed the Defence on 1 July 2016 which is before me now.
There are certainly some compelling circumstances in terms of delay by reason of the conduct of the matter generally and the failure of the defendant to appear on a number of occasions. It is perhaps a borderline case, but there has been sufficient delay to strike out the Defence for want of prosecution.
However, the principal issue of concern for me is that the Defence does not disclose a defence at all.
What the defendant does, in paragraphs 2 to 18, is merely state it "does not admit the allegation" in each of the paragraphs of the statement of claim and then state either that the defendant is "uncertain of the truth" (as in paragraph 3) by reason of insufficient particularisation, or alternatively "not admit" and then plead in the alternative or indeed possibly at the same time that the allegation is "untrue" (see paragraphs 15 to 18).
This is a form of pleading sometimes referred to as an "alternative denial" where there is a plea of not admitting followed by an alternative plea of denial and pleas of this nature have been the subject of criticism and summary striking out in Hunter Helicopter Charters Pty Ltd v ACN 133 019 093 Pty Ltd [2017] QDC 62 at [15], citing Green v Pearson [2014] QCA 110. In Hunter Helicopter Charters Pty Ltd v ACN 133 019 093 Pty Ltd, Kent QC DCJ noted that a defence pleaded in this fashion had sufficient lack of prospect of success to warrant entering judgment (at [32]). Any defence asserting failure to provide particulars and/or pleading denial as an alternative to "not admitting" is a pleading falling within the same category, and I am satisfied that, for those reasons alone, the Defence should be summarily dismissed.
Finally, I note the obligation of every defendant to fill out the affidavit verifying the Defence. This is no idle requirement. It is an essential part of the Defence, similar to the recognition by an expert of the code of conduct in an expert report.
A Defence which does not contain an affidavit verifying is only permissible in certain limited causes of actions such as defamation. The Defence which was filed and which has been stamped by the court (and is tendered as an exhibit) is blank as to the affidavit verifying. While my brief search of the relevant cases has not turned out any cases where a Defence has been struck out for failure to comply with this requirement, I consider it is a relevant factor when determining whether a Defence should be struck out.
Perhaps even more relevant is that the back page containing "further details about filing party". It refers to another company entirely, namely "Weber Bros Entertainment Pty Ltd", care of a firm of accountants in Milsons Point.
Having said that, I do note that what purports to be a signature of a "director" appears on page 4 after paragraph 18. However, the Defence itself is not verified and what is more, the identity of that director is unclear from the scribbled signature. Is it Mr Weber, or Mrs Weber, or some other member of the Weber family, or indeed anybody with the surname Weber at all? It is impossible to tell from the signature and I am not prepared to speculate.
Accordingly, for these reasons, I have acceded to the application made by Mr Campbell and I have struck out the Defence and proceeded to hear this action as an assessment of damages.
Rules 13.4 and 14.28 UCPR set out the basis upon which summary judgment may be entered where a pleading is in such a form, and I note the relevant principles as set out by the Court of Appeal in Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268 at [11] and [12]. I accordingly propose to make an order for summary judgment and to proceed to the assessment of damages.
This brings me to the evidence of the plaintiff, who described in quite vivid terms the difficulties she found herself plunged into darkness and compelled to move forward, due to there being a crowd of other persons. She put out her foot to try and climb this manifestly inadequate structure, and then found herself falling and suffering a blow to her head of significant severity.
As to injuries, there are photographs taken shortly after the accident, and they demonstrate the quite substantial injury to the bridge of the plaintiff's nose. She was indeed fortunate that she struck it with her nose and that she was wearing sunglasses because it could have been an injury which did very significant damage to her face.
As it was, the plaintiff had to be taken by ambulance to the hospital so that the seriousness of the injury could be checked. It says a lot for the concern with which the hospital treated her injury that she had to undergo a CAT scan and that she told me - in circumstances which perhaps would otherwise be objectionable - that the ambulance officers described her injuries as being like those occurring from a "king hit". While I must treat that statement with caution, because ordinarily there would have been an objection to such a statement going into evidence, the fact remains that it was a very significant blow to the plaintiff's head and she said that, since that time, she has suffered problems with concentration and the like.
Although the plaintiff is now retired, being now 72 years of age, she has remained active in the workforce in the past, in that she has worked as a court reporter and performed secretarial duties. This work appears to have continued even into her retirement. No claim for past or future economic loss is made, but one of the impacts that the injury had on her is difficulties with concentration and collecting her thoughts.
However, the most substantial injuries that the plaintiff received are the scarring she suffered on her body and in particular on her face following the injury which are put at 5% whole person impairment by Dr Rea, a specialist in plastic and reconstructive surgery. The psychological injuries to the plaintiff are the subject of report from Dr Ali, who describes her as having post-traumatic stress disorder and as being recommended to have psychological counselling while seeing a psychiatrist at an ongoing cost of some $1,500 per year.
The plaintiff said in her evidence that, in addition to having trouble sleeping, she has flashbacks of the accident, which is clearly indicative of post-traumatic stress disorder. She says that she has become afraid of going anywhere in the dark and of using ladders or climbing up steps, which is understandable in the circumstances.
I have taken into account, when assessing non‑economic loss, the warnings of the New South Wales Court of Appeal about not being too distracted by the plaintiff's age which used to be a factor in non‑economic loss for many years (see Reece v Reece (1994) 19 MVR 103; see also the remarks of McColl JA in Varga v Galea [2011] NSWCA 76 at [72]ff).
This was a frightening accident where the plaintiff fell forward in the dark, and suffered a severe blow to her head. No person of any age likes to suffer an injury to their face which involves scarring and, while the scar now is not really noticeable, it was clearly noticeable for some time.
The plaintiff's evidence makes it clear that the plaintiff has had ongoing disabilities of some significance. I consider, in the circumstances, that Mr Campbell's proposed figure for assessment of non‑economic loss at 26% (which is $41,500) to be reasonable in all of the circumstances.
Past out-of-pocket expenses include personal liability for the ambulance, which I note at just under $400, as well as a number of bills for psychologists. The plaintiff, who was frank to a fault as a witness, said she had not had any medications, which I must say surprises me, and I suspect she has forgotten about them.
I am satisfied that an appropriate figure for past out-of-pocket expenses is the figure given by Mr Campbell of $2,000.
In relation to future out-of-pocket expenses, I consider the estimate of $2,000 to be extremely moderate, bearing in mind that if she had a year of psychological or psychiatric counselling that could easily consume the lion's share of this figure, in that that is estimated at $1,500.
I note that a claim for past and future care has been abandoned.
Accordingly, I am satisfied that the plaintiff should be awarded damages for the sum sought, which is $45,500.
As this sum is over the threshold in r 42.35 UCPR (which is $40,000), the plaintiff may recover costs in the usual way.
In the event of there being any challenge to this assessment, or reduction of the damages on appeal, I would add that I consider that the facts in this case are to be sufficiently difficult to warrant the bringing of this action in the District Court, by reason of the unusual nature of the injury and the likelihood, when proceedings were commenced, that the plaintiff's injuries could have been more serious than foreseen, since this was a head injury and that her injuries could have been discovered in time to be more serious than they have now been assessed to be.
I will also make an order that the defendant pay the plaintiff's costs.
The plaintiff is to take out a copy of this judgment and serve it on the defendant, in order to comply with the obligations I see as being imposed upon the court by r 29.7 UCPR and by reason of the observations of Barrett J in Satz v ACN 069 808 957 Pty Ltd.
[2]
Orders
Accordingly, the orders I make are as follows:
1. Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D at 11:05am - no appearance.
2. Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D a second time at 12:25pm - no appearance.
3. On the application of the plaintiff, the Defence is struck out pursuant to rr 12.7 and 14.28 Uniform Civil Procedure Rules 2005 (NSW); proceedings to continue by way of assessment of damages.
4. Judgment for the plaintiff for the sum of $45,500.
5. Defendant pay plaintiff's costs.
6. Plaintiff is to take out a copy of Gibson DCJ's ex tempore judgment and to serve it on the defendant, Weber Bros Circus & Logistics Pty Ltd.
7. Exhibits remain with the file until further order.
[3]
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Decision last updated: 06 July 2017