Dunn v Yeperenye Pty. Limited & Anor

Dunn v Yeperenye Pty. Limited & Anor [2025] NTSC 55

• [1] The First Defendant makes application for further and better particulars in respect to paragraph [21(a)] of the Amended Statement of Claim (ASOC) filed 5 December 2024. The application is supported by the affidavits of Patricia Sicapore made 9 January 2025 (First Sicapore Affidavit) and 3 March 2025 (Second Sicapore Affidavit) respectively, which are taken as read.
• [2] Paragraph [21(a)] of the ASOC, in the context of giving particulars of the negligence of the First Defendant, provides:

(a) Having invited the plaintiff into the Centre failed to have in place a cleaning system that allowed for the timely observation and/or removal of and/or warning of the danger of hazards in the Food Court.

• [3] Proceedings were commenced by Writ endorsed with a Statement of Claim. The First Defendant filed its Defence on 8 May 2024. On 21 November 2024 by Court order the Second Defendant was joined to the proceeding and leave was granted to the Plaintiff to file and serve an Amended Writ and ASOC. By Amended Writ and ASOC filed on 5 December 2024 the substantive action seeks damages for personal injury allegedly suffered by the Plaintiff as a result of a slip and fall incident at the Yeperenye Shopping Centre (the Centre), which was owned and occupied by the First Defendant. An Amended Defence in response to the ASOC has not been filed pending this application with the First Defendant claiming it cannot do so until further and better particulars are provided. However, in its Defence, filed 8 May 2024, the First Defendant admits that it owed the Plaintiff a duty of care but denies breaching its duty. By in interlocutory application filed 9 January 2025 the First Defendant seeks an order for further and better particulars in respect to paragraph [21(a)] of the ASOC.
• [4] The evidentiary basis upon which this application is made is not in dispute and can be summarised as follows:
  • The First Defendant was the owner and operator of the Centre;
  • The Plaintiff alleges attending the Centre on 9 April 2021 when she slipped on ice cream whilst traversing the food court area;
  • The ASOC does not specifically plead how long the ice cream was present on the floor[1];
  • CCTV evidence supports that the ice cream was present on the floor for approximately 7 minutes before the Plaintiff slipped on it;[2]
  • An expert report commissioned by the Plaintiff criticises the First Defendant's failure to have a full time cleaner in the area;[3]

• [5] The First Defendant takes issue with paragraph [21(a)] of the ASOC and in particular in respect to the inclusion of the word "timely" on the basis it is impermissibly vague and embarrassing. The First Defendant claims that, in the absence of clear and proper articulation, namely a quantitative or qualitative reference point, the First Defendant (and ultimately the Court) cannot make any determination of: (1) the reasonableness of the system that was alleged to have been required nor (2) whether the absence of such a system (if proved) made any difference to the outcome.
• [6] The First Defendant does not contest the proposition that reasonable care required it, as the occupier of the Centre, to have a reasonable system of cleaning and inspection. The question is, the First Defendant says, what was reasonable, or in the words of the pleading, what was "timely"? The First Defendant submits that to succeed at trial the Plaintiff must both plead and prove the frequency of the system of inspection that is alleged to have been required. Additionally, it is submitted that the Plaintiff must, in addition to the breach, prove that if the allegedly reasonable system had been in place the Plaintiff would not have slipped on the ice cream. The First Defendant says that such a determination cannot be made without a qualitative or quantitative reference point (ie. a period over which inspection was reasonably required) from which to consider whether the First Defendant acted reasonably. The First Defendant claims that a failure to do so infringes pleading rules in respect to a claim being pleaded with sufficient particularity to inform the other party of the case it is required to meet. The First Defendant submits that the Plaintiff's failure to articulate the frequency with which reasonable care demanded that the First Defendant inspect and/or clean the floor has the effect that the First Defendant cannot understand the case that is brought against it. Further the First Defendant says that it is also unable to narrow the issues in the dispute and potentially make admissions that could substantially reduce the litigated issues. Further, it is submitted that the Court would not, on the currently pleaded case, be able to make any meaningful determination of the central issues, namely how often the First Defendant should have inspected and/or cleaned the floors, and whether any alleged failure to do so made any difference to the outcome. The First Defendant submits that the Plaintiff should be required to tell it (and the Court) in advance of the trial, what frequency of cleaning and inspection is alleged to have been required as a matter of reasonable care. In short, the Plaintiff should be ordered to provide further and better particulars of paragraph [21(a)] of the ASOC, failing which the paragraph should be struck out.

• [7] In response, the Plaintiff submits that the Statement of Claim, before amendment, plead at paragraph [13(a)] precisely the same thing in respect to the failure of the First Defendant to have in place a cleaning system that allowed for the timely observation and/or removal of and/or warning of the danger of hazards in the Food Court. At paragraph [13] of its Defence, the First Defendant, in denial of the breach of duty, pleaded: (b) the cleaning services allowed for a timely deduction and/or removal of any hazards on the Food Court floor, including spills; (c) in providing the cleaning services, Alice Springs Cleaning Services was obliged to clean any spills immediately upon detection of the spill within its rotations of the area...; (e) in any event, it is unrealistic and unreasonable to expect that the First Defendant and/or Alice Springs Cleaning Services and/or the Second Defendant identify, cordon off and clean a spill within a 7 minute time frame. The Plaintiff says that in its May 2024 Defence the First Defendant pleaded to what was timely and sees no reason why it cannot do so now.
• [8] It is the Plaintiff's submission that where there is an admitted duty of care to persons using the premises of the First Defendant, it is for a Court to determine if the delay between the spill and the slipping was acceptable. The Plaintiff says that to require a plaintiff to plead the number of minutes and/or seconds required for inspection/cleaning in order to satisfy the duty of care is a matter for evidence and not for particulars, and that the First Defendant's complaint ignores the rest of the pleading and the expert evidence the First Defendant has been served with.[4] Further, the Plaintiff says all parties have the CCTV vision of the incident, all parties know when and how the hazard came to be on the floor of the Centre, where on the floor the hazard was in relation to the through traffic in the area, and the amount of time which passed before the Plaintiff slipped on the hazard. The Plaintiff says it does not understand how the First Defendant cannot now answer the claim in relation to the allegation when it knows how long the ice cream was on the floor, where it was and can see its staff nearby. The Plaintiff submits that the word 'timely', as pleaded, means its plain meaning - is a time before the expiration of 7 minutes.
• [9] The Plaintiff submits that the matters complained of by the First Defendant are not matters which should be pleaded but matters for evidence. Further, it is submitted that in respect to slip cases the Courts have reiterated that the time required to deal with a hazard will depend on the facts of the particular case. The Plaintiff states that there is nothing preventing the First Defendant from pleading that less than 7 minutes was an unreasonable time to have removed the hazard. That of course is disputed by the Plaintiff in its proposed expert evidence. Further, the Plaintiff disputes that she will be required to plead and prove the frequency of the system of inspection that she alleges should have applied. The Plaintiff says that all she will need to plead, as she had done, is that there was a hazard, the hazard was not removed when it should have been and she was injured as a result of that failure. Why the hazard was not removed are all matters for the Defendants at trial. The Plaintiff submits that she does not need to plead what was required in terms of inspection, but rather what reasonable steps could have prevented the injury.

• [10] Supreme Court Rule 13.11 provides:

(1) The Court may order a party to serve on another party particulars or further and better particulars of a fact or matter stated in the party's pleading or in an affidavit filed on his behalf ordered to stand as a pleading.

(2) The Court shall not make an order under subrule (1) before service of the defence, unless the order is necessary or desirable to enable the defendant to plead or for some other special reason.

(3) The Court may refuse to make an order under subrule (1) if the party applying for the order did not first apply by letter for the particulars he requires.

• [11] The general principles applicable to determination of a request for the Court to order further and better particulars was set out by Luppino M (as he was) in Mac-Attack Equipment Hire Pty Ltd v AJ Lucas Operations Pty Ltd (footnotes omitted):[5]
  1. The purpose of pleadings is to define with clarity the issues which are in dispute and to require each party to give fair and proper notice to the other of the case to be met. Northern Territory of Australia v John Holland Pty Ltd & Ors.
  2. Particulars define the issues to be tried and enable the parties to know what evidence it will be necessary to have available at trial. See Order 13.10(2) of the Rules and Bailey & Ors v The Commissioner of Taxation.
  3. Particulars are required to ensure that litigation is conducted fairly, openly and without surprises and incidentally to reduce costs. See Order 13.10(2) of the Rules and Astrovlanis Compania Naviera SA v Linard and Dow Corning Australia Pty Ltd v Girys.
  4. As the generality of a pleading of a material fact may not sufficiently inform the other side of the case to be met, particulars are designed to limit that generality. Dow Corning Australia Pty Ltd v Girys.
  5. Pleadings and particulars enable the relevance and admissibility of evidence to be determined at the trial. Dare v Pulham.
  6. Pleadings and particulars are not intended to disclose the manner by which the case is to be proved. R v The Associated Northern Collieries & Ors.
  7. A Defendant is entitled to particulars of the damages claimed notwithstanding that Order 13.12(4) of the Rules deems that allegations of loss and damage are denied. A claimant must particularise any items capable of substantially exact calculation. Particulars must give the other side access to the facts which make such calculations possible and thus show the party the case they have to meet and so that any necessary expert evidence can be obtained. Cavanagh v Summers.
  8. The sufficiency of pleadings is something which can vary from case to case. Dare v Pulham approving of Perestrello v United Paint Co Ltd. Hence whether to order particulars and the extent of the order for particulars is a matter for the Court's discretion. Bailey & Ors v The Commissioner of Taxation.
• [12] And as in Mac Attack, relevant also is Rule 13.10 which provides:

(1) A pleading shall contain the necessary particulars of a fact or matter pleaded.

(2) Without limiting subrule (1), particulars shall be given if they are necessary to enable the opposite party to plead or to define the questions for trial or to avoid surprise at the trial.

• [13] As a rule, particulars will not be ordered before service of a defence unless the particulars are necessary or desirable to enable the defendant to plead or for some other special reason.[6] In the ordinary case, the convenient course for the defendant is to serve a defence denying the allegations of which particulars are sought and apply for the particulars afterwards.
• [14] There are multitude of authorities, consistent with Mac Attack, relating to what is referred to as the "cards on the table" approach to litigation, such as in Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia (No 5) where Le Miere J observed:[7]

The rules and practice of this court do not permit trial by ambush. The plaintiff must lay its cards on the table so that all the true issues are identified and can be fairly tried in due course. The degree of precision required in a pleading, or particulars, will depend upon the particular case. In some cases the delivery of witness statements may obviate the need for greater particularity in a pleading. In other cases a fair trial will require greater clarity, precision and openness in the pleading and particularising of a party's case. In this case it is necessary so that the defendants may know whether and how they are able to resist the plaintiff's damages case. Unless the defendants know how the plaintiff puts its case they will not be able to put on lay or expert evidence in response and will not know how to cross‑examine the plaintiff's witnesses. Furthermore, the court will not be able to assess the relevance, and hence admissibility, of evidence, including expert evidence, adduced by the plaintiff.

• [15] The background to the request for particulars is set out in the First and Second affidavits of Ms Sicapore, the First Defendant's solicitor, which can be summarised as follows:

(a) On 21 November 2024 Ms Sicapore wrote to the Plaintiff's solicitor seeking further and better particulars, in respect to paragraph 13(a) of the Statement of Claim (which was prior to the filing of the ASOC but in the same terms as 21(a) of the ASOC which subsequently followed). The request relevantly stated "Please provide particulars of the vague expression 'timely observation'". In a response dated 3 December 2024, the First Defendant's solicitors responded "we cannot ascertain the utility in providing further explanation for the word "timely" as it appears in the plaintiff's pleadings."

(b) By email of 5 December 2024 the First Defendant's solicitors repeated the request for further and better particulars and stated "As a matter of fairness, proper particulars of paragraph 13(a) should be provided addressing precisely what timeframe your client asserts, as a matter of reasonable care, our client's system of inspection should have instituted."

(c) By letter of 3 February 2025 the Plaintiff responded seeking clarity as to whether the request related to 'timely observations' and/or 'timely removal'. In any event, the Plaintiff refused to provide any further and better particulars on the basis the Plaintiff need not provide a time period and/or frequency for inspection, the particulars were not controversial, the use of the word "timely" did not cause confusion and whether the First Defendant had in place a system which was timely in observation and/or removal to hazards in the Food Court was a matter for the finder of fact. The correspondence noted "And in any event, it is reasonable to expect that a proper system of cleaning would have operated to observe and remove a spilt substance within a few minutes".

(d) On 6 February 2025, the First Defendant responded re-iterating, as it has in this application, that without any quantitative or qualitative reference, the use of the word 'timely' is impermissible and stated "Our client is entitled to know the case it is expected to meet, and regardless, the court cannot determine the issue unless your client expressly pleads the precise system that she alleges, as a matter of reasonable care, should have been in place. In the absence of particulars our client cannot prepare its case. It might, for example, be the case that your client pleads the area should have been inspected every hour. Alternatively, it might be the case that your client pleads the area should have been inspected every five minutes."

• [16] The issues in the case for determination by the Court will be the same as in many other slip and trip cases including:

(1) What duty of care was owed by the First Defendant to the Plaintiff?

(2) What is the risk of harm against which it is alleged the First Defendant ought to have taken reasonable precautions?

(3) What are the reasonable precautions the First Defendant ought to have taken to address the risk of harm caused by items being dropped on the floor?

(4) Whether the First Defendant failed to take any or all of the reasonable precautions found;

(5) If the First Defendant failed to take any or all of those reasonable precautions, whether that failure caused the injury suffered by the Plaintiff;

• [17] This matter can be distilled to the following proposition - do the pleadings rules require the Plaintiff to provide further and better particulars in respect to the offending pleading? The offending part of the pleading being particulars of the breach of the First Defendant's duty of care, in particular that, in respect to its duty of care posed to those entering the Food Court, whether it breached that duty by failing to have in place a cleaning system that allowed for timely observation of risks and the removal of risks.
• [18] The use of the word "timely" qualifying "observation" has naturally invited the First Defendant to request the Plaintiff to tell it what is meant by "timely". That is, what system the Plaintiff says the First Defendant should have had in place and in particular what times inspections should have taken place by reference to some reasonable standard. No doubt there will be evidence from the First Defendant as to what system of cleaning it actually employed, and the First Defendant does not need to await clarification from the Plaintiff in that regard, as it will be a matter of fact as to what system it in fact used. The question will be though whether that system satisfied the standard required of the duty of care and if not, in terms of causation, what would have and whether the Plaintiff would have suffered harm in any event. As understood, the First Defendant will address the practicalities of other aspects of possible inspection regimes with reference to matters such as the expense, difficulty and inconvenience of such regimes. It cannot do so, it says, without knowing what the Plaintiff means by timely.
• [19] The Plaintiff says what is "timely" is to be determined at trial on the evidence according to what is found by the Court to be reasonable measures employed in respect to the risk. That determination will be made by the Court on evidence and according to application of relevant legal principles. The First Defendant in turn says that before the matter even gets to trial it is at a disadvantage as it does not know the extent of what inspection it was required to carry out, and that it should be informed of that before trial, so that it can prepare its case. The First Defendant says it should not be left to predict what will be put at trial and taken by surprise. The First Defendant says that if the Plaintiff intends alleging that a reasonable system of inspection was required, it should properly particularise it and not leave it to a vague term such as "timely". The First Defendant says it requires as a matter of fairness, as does the Court in order to perform its function, a reference point as to how often the floor should have been inspected.
• [20] Although not ideal, sometimes particulars are somewhat imprecise and the case to be met becomes apparent upon filing of evidence or expert reports. As stated above in Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia (No 5): "In some cases the delivery of witness statements may obviate the need for greater particularity in a pleading. In other cases, a fair trial will require greater clarity, precision and openness in the pleading and particularising of a party's case". In this case it is the First Defendant's evidence, notwithstanding a request for further particulars, that the Plaintiff's expert report does not assist in clarifying the issue of what system was required in respect to timeliness of inspections. Nor is it ideal that some 'slip and trip' cases have proceeded without particulars of the precise quantitative or qualitative reference being pleaded.
• [21] The difference in this case between others such as Strong v Woolworths Ltd,[8] where the Court was required to determine how long the offending chip had been on the ground, is that there is definitive CCTV evidence which indicates the precise time at which the ice cream spill occurred and the time of the Plaintiff's slip, a time period of approximately 7 minutes.
• [22] In submissions counsel for the Plaintiff said this:

"So the issue really for the plaintiff is that she pleads that it was unreasonable to not have had in place an inspection that covered a seven-minute period. She doesn't need to plead what would have happened. She's pleading that seven minutes is unreasonable. So she's saying "timely". Everyone knows that the timeliness that she complains of is the seven minutes. Because all the parties have access to the video".

• [23] Given the above, it would seem to be the Plaintiff's case that a reasonable inspection period of the area in question would have comprised an inspection period of something less than 7 minutes. That would appear to be supported by the Plaintiff's solicitor's statement in correspondence, referred to above, that is: "it was reasonable to expect that a proper system of cleaning would have operated to observe and remove a spilt substance within a few minutes". Further, the Plaintiff's expert report states (at para 7.34) "there should have been a cleaner continuously conducting dedicated inspections of the floor for slip hazards in my opinion".[9]
• [24] The Plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings.[10] As stated in Buljat v Coles Supermarkets Australia Pty Ltd:[11]

"In order to succeed on liability, the appellant was required to establish that the precautions which a reasonable person in the respondent's position would have taken would have resulted in the grape being detected and hence the slip not occurring."[12]

• [25] As noted above in Mac Attack the principles relating to pleadings are well established, and the sufficiency of pleadings will vary from case to case. I am mindful of the authorities referred to by the Plaintiff that pleadings are not an end to themselves but instead are a means to the ultimate attainment of justice between parties to the litigation[13] and that pleadings themselves must not become a burden[14].
• [26] In Arthur Young, Lander J in the circumstances of the pleadings in the case against Arthur Young[15], held that "the plaintiffs must be able to give particulars of what would have been appropriate action and particulars of what was done, which would show the inappropriateness of the action" and the failure to do so was embarrassing and lacking in such particularity such that the pleading could not stand. Further, Lander J held that recourse to expert reports, as held at first instance, would not cure the deficiency in the pleadings, any reports only amplifying the pleadings and preventing Arthur Young from properly instructing its experts on what it was that they had not properly done. Similarly in Di Ciano v ANZ Banking Group [No. 2] the Court determined that a pleading which was expressed in terms of a lack of any details in relation to the phrase "effective measures" was defective on the basis that it was not sufficiently clear for it to be fairly met.[16]
• [27] On the basis of the above, whilst there is no doubt it will be up to the Court to determine what a reasonable person would do by way of response to a reasonably foreseeable risk, and if the First Defendant's conduct fell short, whether that response would have prevented the Plaintiff's injury, the Plaintiff has chosen to plead paragraph [21(a)] of the ASOC in a particular manner, by qualification of any observations with the word "timely". The First Defendant says that it cannot properly respond to the Plaintiff's case without knowing what "timely" means by reference to some qualitative and quantitative framework, and that it should not be left to some point at trial before it knows. I agree. To require further particulars would not pose a burden on the First Defendant. If the Plaintiff alleges that the First Defendant should have had in place a cleaning system that allowed for observation and removal of hazards in respect to a certain time period (whether that be continuously, every 3 minutes, 5 minutes or more), then it should tell the First Defendant that, so that the First Defendant can properly respond by way of preparing its case. In my opinion, further and better particulars should be provided by the Plaintiff to the First Defendant in respect to what is a "timely observation" as provided in paragraph [21(a)] of the ASOC.
• [28] In respect to costs, I see no reason why the ordinary rule, pursuant to Rule 63.18, should not apply. However, if any party seeks an order for their costs they may file written submissions within two weeks of the delivery of these reasons, and any such application will be dealt with on the papers.
• [29] I therefore make the following orders:

(1) Within 14 days of the date of the delivery of these reasons, the Plaintiff is to provide further better and particulars in relation to paragraph 21(a) of the Amended Statement of Claim, filed 5 December 2024.

(2) Subject to any application for costs made by a party, to be determined, costs will be costs in the proceeding in accordance with Rule 63.18 of Supreme Court Rules 1987 (NT).

[1] The allegation is put as "shortly before the plaintiff approached the food court ice cream... had been dropped on to the tiled floor".

[2] First Sicapore Affidavit at paragraph [13].

[3] Second Sicapore Affidavit, annexure PS3, at page 44.

[4] Report of Dorhmann Consulting dated 3 May 2024 which is at annexure PS3 of the Second Sicapore Affidavit.

[5] [2011] NTSC 01 at [3] "Mac Attack".

[7] [2014] WASC 76 at [50].

[8] [2012] HCA 5; (2012) 246 CLR 182.

[9] Report of Dorhmann Consulting dated 3 May 2024, at paragraph [7.34].

[10] Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]- [19]). Notwithstanding those cases relate to interpretation of the Civil Liability Act 2002 (NSW), the concepts in respect to onus are not different.

[11] [2022] ACTCA 71 at [52].

[12] Also see Town of Mosman Park v Tait [2005] WASCA 124 at [51]: "The respondent was required to identify with precision what a reasonable person would do, either by reference to industry standards or practice and the financial or other impacts of the proposed system". See also Arabi v Glad Cleaning Service Pty Limited [2010] NSWCA 208 at [57]: "On the assumption that the appellant could establish that the respondents had breached the duty they owed to him, it was necessary for him to prove that the breach caused his injuries. To do this, the appellant had to prove, on the balance of probabilities, that a proper system (on the appellant's argument, a system requiring inspections every ten minutes) would have avoided his injury."

[13] Di Ciano v ANZ Banking Group [No. 2] [2025] WASC 80.

[14] Arthur Young & Anor v Tieco International and Ors (1995) 182 LSJS 367 "Arthur Young".

[15] Which was not a slip and fall case but was in respect to the adequacy of pleadings which were to the effect that Arthur Young did not so something or in the alternative if they did, they did not do it properly.

[16] [2025] WASC 80.