Plaintiff v First Defendant

Supreme Court of Victoria|2018-06-18|Before: T FORREST J

PRACTICE AND PROCEDURE - Pleadings - Application to further amend statement of claim - Application made on day of trial - Multiple opportunities to further amend at interlocutory stages - Whether proposed amendments would cause undue delay - Whether proposed amendments have merit - Leave to further amend statement of claim granted in part - Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 6) [2012] VSC 70 - AON Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Boehm v Strongback Pty Ltd [2011] VSC 463 - Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136 - ; -

1 The plaintiff is pursuing personal injury proceedings against both defendants. The first defendant was the plaintiff's employer on 21 March 2012. The second defendant supplied a metal waste bin as part of a commercial waste removal contract with the first defendant. On 21 March 2012, the plaintiff stood on the metal lip on top of the waste bin with the intention of using one foot to stamp down cardboard waste in the bin so as to allow more waste to be placed in the bin. Whilst standing with both feet on the narrow lip, approximately 1.5 metres from ground level, the applicant took hold of the lid to the bin. The lid was hinged to the bin and at the time was in a completely vertical position. Its angle could be held in one of a number of open positions using a ratchet device. The plaintiff alleges that, without warning, the lid fell from the vertical position. As a consequence, he lost his footing and fell to the ground, badly fracturing his leg and sustaining other injuries.

2 On the morning of trial, Mr Richards QC, for the plaintiff, sought leave to further amend the plaintiff's statement of claim.[1] Objection was taken to the timing of the application and to the substance of the amendments, many of which were obviously defective. I pointed to what I saw as the more obvious deficiencies and stood the case down for a time. Over lunch, the plaintiff's solicitor provided another proposed FASOC, which addressed some of the more obvious pleading deficiencies and removed others altogether. At 2.15 pm, Mr Richards sought leave to amend the ASOC in the manner set out in the proposed FASOC. The defendants oppose leave being granted. These reasons concern this application to amend.

3 At the moment, the plaintiff's case is pleaded in negligence only against both defendants. Whilst a particular of negligence against both defendants is styled 'failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the Regulations made thereunder', a stand alone cause of action of breach of statutory duty is not pleaded. The particular of negligence that I have just set out is so broadly drafted as to be meaningless in any event.

4 The proposed amendments, as against the first defendant, seek to add allegations of breaches of various duties imposed under the Occupational Health and Safety Regulations 2007 ('the Regulations'). I shall set out the proposed amendments against the first defendant:

9. Further or in the alternative, at all relevant times the first defendant was under a duty to comply with Part 3.1 - Manual Handling of the Occupational Health and Safety Regulations 2007 ('the Regulations') in respect of the task of compacting as much as possible the material in the waste bin.

a. The first defendant was required to identify as far as was reasonably practicable any task undertaken or to be undertaken by an employee involving hazardous manual handling, regulation 3.1.1.(1);

b. The first defendant was required to ensure that the risk of musculoskeletal disorder associated with a manual handling task affecting an employee was eliminated or reduced as far as is reasonably practicable;

c. If it was not reasonably practicable for the first defendant to reduce the risk of a musculoskeletal disorder associated with a hazardous manual handling task in accord with subregulation 2), then the first defendant was required to control the risk by the use of information, instruction or training.

d. The first defendant when determining any measure to control any risk of musculoskeletal disorder must address the following factors: postures, movements, forces and duration and frequency of the task and environmental conditions.

10. The first defendant breached the Manual Handling Regulations as set out above which breach or breaches caused the plaintiff to suffer injury loss and damage.

a. Failing to identify properly or at all, that the task of compacting as much as possible the material in the waste bin, involved hazardous manual handling;

b. Failing to ensure that the risk of a musculoskeletal disorder associated with the task of compacting as much as possible the material in the waste bin was eliminated or alternatively reduced by means including:

i. Devising a safe system of work for the compacting as much as possible of the material in the waste bin;

ii. Eliminating the need for the material in the waste bin to be compacted as much as possible by the use of force exerted by employees including the plaintiff;

iii. Removing the requirement for employees to ensure that the material in the waste bin was compacted as much as possible;

iv. Eliminating the need for employees to access the waste bin to compact as much as possible the material in the waste bin;

v. Increasing the frequency of collection by the second defendant, of the material in the waste bin so as to eliminate the need for the plaintiff to compact, as much as possible, the material in the waste bin.

11. Further or in the alternative, at all relevant times first defendant was under a duty to comply with Part 3.3 of the Regulations - Prevention of Falls.

a. The first defendant was required to identify as far as was reasonably practicable any task undertaken or to be undertaken by an employee involving a fall hazard - regulation 3.3.3 (1);

b. The first defendant was required under regulation 3.3.4(1) to control the risk of a fall so far as is reasonably practicable by arranging for the task to be undertaken

c. If it was not reasonably practicable for the first defendant to comply with 3.3.4(1) above, and the risk of a fall remains, the first defendant must reduce the risk so far as is reasonably practicable by ensuring that a passive fall prevention device is used.

d. If it was not reasonably practicable to comply with 3.3.1(1) or (2) and a risk of a fall remains, then the first defendant must reduce the risk so far as is reasonably practicable by using a work positioning system.

e. If it was not reasonably practicable to comply with (1), (2), (3) or (4), and a risk of fall remains, the first defendant must so far as is reasonably practicable, reduce the risk, by ensuring that an administrative control is used.

12. The first defendant breached the above mentioned Regulations pertaining to prevention of falls which breach or breaches caused the plaintiff's injury loss and damage.

a. Failing to identify the task of compacting the material in the waste bin as much as possible, involved a fall hazard including by requiring the plaintiff to access the waste bin at an elevated level;

b. Failing to arrange for the compacting of the waste bin material as much as possible, to occur on the ground only;

c. Failing to provide a solid construction with an even and readily negotiable surface and gradient from which the plaintiff was to perform the compacting of the material in the waste bin as much as possible and/or an area that has a safe means of access and egress;

d. Failing to provide a passive fall prevention device or a work positioning system or a fall arrest system in respect of the compacting of the material as much as possible in the waste bin task.

e. Failing to use an administrative control including having the waste bin collected at an increased frequency and/or designing and enforcing a system of work that did not require the plaintiff to compact as much as possible the material in the waste bin from on or in the waste bin.

13. Further and by reason of the foregoing, at all relevant times the first defendant was required to control particular risks under the aforementioned Regulations, and in accordance with Regulation 2.1.2(1) was thus required to provide to the plaintiff with [sic] sufficient information, instruction and training in relation to the following matters as are necessary to enable the plaintiff to perform his work in a manner that is safe and without risks to health -

a. The nature of the hazard giving rise to the risk with respect to the risk of injury from compacting as much as possible the material in the waste bin;

b. The need for, and the proper use and maintenance of, measures to control the risk of injury from compacting as much as possible the material in the waste bin.

14. In breach of Regulations 2.1.2(1), the first defendant failed to provide information instruction and training to the plaintiff to ensure that the task of compacting as much as possible the material in the waste bin was not required of him and/or could be performed in a safe manner without risks to his health.

5 The proposed amendments cover three broad categories of breaches:

(b) Prevention of Falls; Part 3.3 of the Regulations; and

6 As against the second defendant, the plaintiff seeks to add two particulars of negligence. They are:

h) Failing to place and maintain signs on the waste bin warning about the risks of climbing onto or into the waste bin

i) By designing the truck pick up points of the waste bin so as to encourage people using them as a step

7 Mr Richards contended that leave to amend ought be granted. The plaintiff only has one opportunity to pursue this action and he ought be permitted to place his best case before the jury. I was told, and accept, that Mr Richards came into this case late, was surprised that the case was pleaded only in negligence and immediately set about preparing a proposed FASOC. He submitted the circumstances of the case as disclosed in the existing ASOC and in the plaintiff's answers to interrogatories had the characteristics of manual handling as defined in the Regulations[2] and hazardous manual handling.[3] The duties imposed in Chapter 3 of the Regulations therefore applied to the first defendant. He submitted that the plaintiff's fall from the 1.5 metre high rim of the bin constituted a fall under Part 3.3 (Prevention of Falls) despite the fact that only part of the plaintiff's body was above the two metre 'involuntary fall' requirement set out in the definition of fall[4] for Part 3.3 purposes. Mr Richards also submitted that reg 2.1.2 would operate by placing an obligation on the first defendant to control manual handling and/or falls risks by the provision of information, instruction and training.

8 Ms Britbart QC, for the first defendant, opposed the amendments relevant to her client. She pointed first to the timing of this application. Since the SOC was first amended in February 2017, all interlocutory steps had been completed. Discovery had been provided and the case had been to mediation. A Notice of Trial was filed on 9 May 2018. At a directions hearing on 18 May, various evidentiary issues were raised. It was mentioned that the plaintiff may need to further amend the ASOC. On 1 June 2018, the first defendant's solicitors inquired of the plaintiff's solicitors regarding the proposed amended pleadings. There was no response whatsoever from the plaintiff's solicitors. On 28 May 2018, the Court sent an email to the parties in preparation for a final directions hearing, asking for confirmation that the matter was ready to proceed to trial. Again, the plaintiff gave no indication that an amendment would be sought. On 1 June 2018, in the final directions hearing before Clayton JR, the plaintiff's solicitor stated that the case was ready for trial from the plaintiff's perspective. The plaintiff gave Clayton JR no hint of any application for a further amendment to the pleadings and took issue with an aspect of the second defendant's defence. On 7 June 2018, Ms Britbart's instructing solicitors received a draft of a proposed FASOC, on 12 June, a further iteration of that document, and the final iteration at about 2.15pm on the opening day of the proceedings.

9 I should add that the first intimation received by the court of some form of amendment application came by email to my associate on Friday 8 June 2018, one sitting day before the trial.[5]

10 Ms Britbart contended that the plaintiff has had ample opportunity to fashion his case. She referred to the principles relevant to this type of application summarised by J Forrest J in Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 6)[6] ('Matthews'). Ms Britbart contended that there was no real factual merit to the proposed amendments, obviously so, and that was a significant factor in the constellation of factors that impacted upon the exercise of my discretion. She referred to AON Risk Services Ltd v Australian National University[7] ('AON') which is the leading High Court authority on this issue, and to various trial judges' rulings that considered the AON principles.[8]

11 As to the factual merits of the proposed amendments, Ms Britbart argued that the task of compacting as much as possible into the waste bin by using a foot was not manual handling, which contemplated, inter alia, the use of hands only. She directed me to various observations made by the courts concerning the manual handling regulations[9] and contended that there was no connection between any risk of injury and the forces exerted by the plaintiff. It was submitted that he had not commenced to exert force, let alone repetitive force. Ms Britbart contended that there was no activity undertaken by the plaintiff which was said to constitute hazardous manual handling and which was intrinsic to his accident. Put another way, there was no nexus between any hazardous manual handling and the fall. Additionally, Ms Britbart contended that the relevant conduct of the plaintiff did not satisfy the definition of hazardous manual handling. Any force undertaken by the plaintiff was not repetitive, sustained or of a 'high force' quality.

12 On the issue of the prevention of falls regulations, Ms Britbart took me to the definition of fall and submitted that a fall from the 1.5 metre rim of the bin did not satisfy the 2 metre involuntary fall component of the definition of fall.[10] Thus, the prevention of falls regulations in Part 3.3 were not engaged. She submitted that Boehm v Strongback Pty Ltd,[11] a decision of a judge sitting in the trial division of this Court, was wrongly decided, and submitted that one only has to look at the sorts of fall prevention protection that are prescribed by the Regulations to realise their complete inapplicability to the present circumstances.

13 Ms Britbart submitted that the reg 2.1.2 component of the amendments (the need to provide information and training to an employee) only would be engaged if the applicant were permitted to plead at least one of the Manual Handling or Prevention of Falls proposed amendments. This, he should not be allowed to do.

14 Mr Morris SC, insofar as they were relevant to his position, adopted Ms Britbart's arguments. Dealing with the proposed amendments to the particulars of negligence alleged against the second defendant, Mr Morris contended that neither amendment (h) nor (i) ought be permitted. Both raised a new and different case against the second defendant. Further, neither particular was set against an allegation of the particular duty owed. Mr Morris submitted that there is no or no sufficient foundational pleading such as would justify adding these particulars of negligence, and the proposed amendment ought not be the subject of leave.

15 Rule 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 provides the court with a discretion to order, at any stage, that any party have leave to amend any document in a proceeding. The relevant factors to be considered in determining whether or not to grant a party leave to make a late amendment were considered in AON.[12] Vickery J conveniently summarised these factors in Namberry Craft Pty Ltd & Anor v Watson & Anor[13] as follows:

There are limits placed upon re-pleading. The High Court in AON referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:

(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies or adjournments of trial;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[14]

16 To this list, J Forrest J in Matthews[15] added, '[o]ne additional factor that comes readily to mind here (and it was not an issue in AON) is that of the merits or otherwise of the proposed amendment. It is well established that an amendment will not be allowed if it is "so obviously futile that it [would] be struck out if it appeared in the original pleading."'[16] J Forrest J cited this passage from Horton v Jones (No 2).[17] His Honour went on to say:

A court on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless case for determination, then its inclusion will be futile and that will be a significant, and probably decisive, matter in the court's discretion. ... Perhaps, given the terms of the Civil Procedure Act 2010, the test is best expressed in the words of s 63 of that Act: if the amendment has no reasonable prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[18]

(a) Whether there will be a substantial delay caused by the amendment

18 The answer to this is a qualified 'no'. This case was allocated to my Court, partly on the assurance given by the plaintiff's solicitor that the estimated duration was 'no more than ten days'. At 10.30am on the first morning of trial, there was an absolute maximum of 13 days available to this Court to hear and determine this jury trial. Mr Richards raised his leave to amend application, Ms Britbart and Mr Morris announced that leave would be opposed and I thought it prudent to inquire, once more, about the potential duration of the trial. Mr Richards offered an estimate of 10 to 15 days[19] (assuming he was given leave to amend), Ms Britbart could give no guarantee that the case would finish by 29 June[20] regardless of whether the amendments were allowed or not. It seemed that there were at least two days of legal argument and Ms Britbart agreed that a judge hearing the matter should set aside three weeks.

19 In these circumstances, I stood the case down for a short time, invited Mr Richards to repair the more obvious deficiencies in his proposed amendments to (at the least) allow the defendants to understand the statutory breaches alleged against them in the proposed FASOC, and I made inquiries as to whether another judge was available to hear the case. When court resumed, I advised counsel that no judge was available until at least next Tuesday, and then only on a highly conditional basis. Obviously, cases cannot be listed on this basis, and so I ordered that this case be transferred to the judicial registrar's list for refixing at a future date.

20 It follows therefore that I cannot conclude that this amendment application, if successful, is responsible for what may turn out to be substantial delay. If I accede to the application for amendment, the case will take longer, perhaps significantly longer than in its simple 'negligence' structure, but on the information I have, it is likely that it could not have been completed before me in any event. The major responsibility for the delay rests with inadequate estimates that were either offered or agreed to in various forms by the parties.[21] At one stage I commented to counsel that, if the case was in its original negligence form and all involved worked hard, we might conclude it within the window. Counsel, who are better placed than I, demurred at this proposition. They are in a much better position than I to estimate duration and I have no reason to doubt their estimates.

(b) Case management, wasted costs and public confidence

21 The provision of the court's time is a publicly funded resource, as explained in AON.[22] Inefficiencies will result in the adjournment of this case, but, as I have observed, those inefficiencies are the product of the inadequate estimates given by all parties, as opposed to the proposed amendments themselves. I accept that delays in the current circumstances must diminish public confidence in our judicial system and that is a serious matter. An effective judicial system provides timely access to justice to all citizens. It needs to be understood, however, that providing timely access to something less than justice will diminish public confidence just as surely as a sluggish access to full justice. A balance must be struck between court efficiencies and allowing a party full access to causes of action or defences that the law allows. While I accept that if the leave application were made in an earlier and separate proceeding before an associate justice, the current proceedings would have been shortened, I am satisfied that it is likely they still would have exceeded the 13 day window. It follows that I am unable to conclude that the amendment application itself is productive of significant wasted costs. Public confidence in the management of cases, however, must be diminished by last minute applications to amend.

(c) Whether there is factual merit in the proposed amendments

22 The centrepiece of the first defendant's submissions was that there was little, if any, factual merit in the proposed amendments. I must determine whether these proposed amendments have no reasonable prospect of success at trial. I bear steadily in mind that I have relatively little information to go on at this immediate pre-trial stage, and that as the case progresses, the evidentiary picture will become clearer. Notwithstanding this, the first defendant argues there are some cases where the picture is sufficiently clear at the outset for a judge to make a valid assessment of the prospects of success of proposed amendments, and this is one such case.

23 In substance, these proposed amendments allege that the work activities of the plaintiff immediately prior to and at the time of his accident constituted hazardous manual handling under reg 3.1.1. That being the case, the plaintiff's work tasks constituted breaches of those regulations by the defendant. As I have set out, the first defendant disputes that the plaintiff's relevant activities constituted manual handling, let alone hazardous manual handling. It will be recalled that the plaintiff was standing with both feet on the narrow (approximately 8 centimetres[23]) flat rim at the top of the waste bin, approximately 1.5 metres from ground level, steadying himself by holding the vertically positioned lid, preparing himself to stamp down with one foot the waste within. The lid fell towards the shut position and the plaintiff fell.

24 The definitions of manual handling and hazardous manual handling in Chapter 1 of the Regulations are as follows:

manual handling means any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any object;[24]

(a) manual handling having any of the following characteristics -

(iv) application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;

25 I do not accept that the text of the definition of manual handling should be read to confine its operation to workplace activities involving the hands only. Is a driver of a car manually handling when he or she steers the vehicle, but not when he or she applies the brakes? If a machine operator using a hand press is manually handling, does his or her colleague operating a foot press not have the same benefit of remedial legislation passed for the protection of workers? I know of no authority which states that the text ought be confined in this way and I certainly will not do so.

26 I consider the better argument put by the first defendant is that, whilst the plaintiff stood with both feet on the rim of the bin, there was no connection between the risk of injury arising from the manual handling activity and what actually eventuated. In Deal v Father Pius Kodakkathanath[26] ('Deal'), the High Court considered the reach of reg 3.1.2. That regulation reads:

(1) An employer must ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.

27 The majority held that reg 3.1.2 must be confined to 'risks of musculoskeletal disorder that are caused by something that is intrinsic to the manual handling task.'[28] The words 'associated with a manual handling task' were calculated to:

restrict the reach of reg 3.1.2 to the risk of musculoskeletal disorder arising in whole or in part from one or more of the hazardous manual handling task force factors of repetitive or sustained application of force, repetitive or sustained awkward posture, repetitive or sustained movement, application of high force, exposure to sustained vibration, manual handling of live persons or animals, or manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold.[29]

The Court provided an example of an office worker whose job it is repetitively to replenish the paper tray of a photocopier. If that employer fell on a greasy floor while holding a ream of paper, but not while performing this repetitive replenishment, it would be a remarkable consequence if this musculoskeletal disorder could be said to come within reg 3.1.2, given that the incident had nothing whatsoever to do with the actual hazardous manual handling task of repetitively replenishing the paper tray.

28 J Forrest J in Lindsay-Field v Three Chimneys Farm Pty Ltd[30] made the following observations about the reach of the manual handling regulations:

In any event, I do not accept that activity of this type is intended to be covered by the Regulations. The objective of the Regulations, I think, is directed towards activities (and particularly repetitive actions) which require the application of force in the course of the particular activity (be it lifting, pushing, pulling or holding) and thus result in a risk of injury. It is that type of injury which the Regulations are designed to prevent.[31]

This passage was cited with approval both by the Court of Appeal[32] and the High Court[33] in Deal. The relevant activity in Lindsay-Field v Three Chimneys Farm Pty Ltd was walking towards the hindquarters of a foaling mare in order to assist her in foaling. The plaintiff was kicked before she could perform any manual task.

29 I consider that the plaintiff's activities in positioning himself on the rim of the bin, whilst no doubt perilous, do not constitute hazardous manual handling within the meaning of reg 3.1.2. The injury, on the apparently undisputed account of the incident (taken from the plaintiff's answers to interrogatories) was not occasioned whilst undertaking an activity 'associated with a hazardous manual handling task'. At its highest, he was positioning himself preparatory to undertaking that task. There were no forces involved and what he was doing was not 'intrinsic' to the application of any future forces. In my view, he was in a similar position to the earlier mentioned office worker, and indeed Ms Lindsay-Field. I will not allow this suite of amendments to the ASOC. I am positively satisfied that these proposed hazardous manual handling amendments have no real prospect of success in the trial.

30 The prevention of falls regulations are set out in Part 3.3 of the Regulations. Fall is defined in reg 1.1.5 as 'an involuntary fall of more than two metres'. The application of the Part is set out in reg 3.3.1 and various irrelevant exceptions are provided in regs 3.3.1 and 3.3.2. Reg 3.3.3 sets out the duties of employers to identify fall hazards, and at reg 3.3.4, measures that must be taken to control the risk of a fall are set out. If it is not reasonably practical to relocate the task to ground level, or implement a passive fall protection device or work positioning system or a fall arrest system,[34] then the employer is required to ensure that the risk is reduced by the use of a fixed or portable ladder or an administrative control.[35]

31 As I have said, the first defendant argued that, as the rim of the bin upon which the plaintiff stood was less than two metres from ground level, this was not a fall within the contemplation of Part 3.3 and thus, these regulations were not engaged. In Boehm v Strongback Pty Ltd,[36] Beach J considered a similar circumstance. In that case, the plaintiff, in the course of his employment, was standing on the step of a ladder 1.7 metres above ground level. The defendant contended that, as the fall was less than two metres, the Regulations had no application in this case. His Honour cited with approval a passage from R v ACR Roofing Pty Ltd[37] to the effect that where legislation concerns industrial safety, it is to be given the fullest relief which the fair meaning of its language will allow. Beach J concluded that these fall protection regulations should be so construed. With respect, I agree with his Honour. His Honour said:

[54] The words "fall of more than two metres" are ordinary English words. They should not be construed in some narrow and pedantic sense. If, on the whole of the evidence, it can be fairly said that a person fell more than two metres, then such a fall is a fall of the kind covered by the Regulations.

[55] In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a "fall hazard" ... That is, there was a potential to fall more than two metres.

32 In the present case, it would be open to the trier of this fact (whether judge or jury) to conclude that the plaintiff's fall was one of more than two metres. The rim of the bin was about 1.5 metres from ground level. The plaintiff, a man of normal height, stood fully upright and extended one arm upward to steady himself on the bin lid. Most of his body, from about the knees upwards, at this stage, would be at or above a height of two metres. In my view, applying the principle of statutory construction relied on by both Nettle and Beach JJA, it would be open to conclude that the plaintiff's fall was of more than two metres. It follows that I consider that there is factual merit in this aspect of the proposed FASOC.

33 Part 2.1 of the Regulations imposes general duties on an employer, one of which (at reg 2.1.2(1)) is to provide information, instruction and training to the plaintiff about the task of compacting the material within the waste bin. Given my finding on the fall protection component of the proposed FASOC, there is factual merit in this aspect as well.

(d) Whether the defendants will suffer prejudice if leave to amend is granted

34 Both defendants will have to 'reheat' their cases for the next hearing date. The preparation done for the vacated trial will carry over. From a factual perspective, there does not appear to be any prejudice if I were to grant the leave sought. Neither the first nor second defendant pointed to any actual prejudice, such as missing evidence or the loss of a witness. Mr Morris submitted that proposed negligence particular (i) raises, effectively, a new case against his client. I shall consider this later in these reasons. Whilst there is often some prejudice associated with late amendments, particularly if the leave application contributes to a delay in the case, in my view, in this case, the prejudice to the defendants could not be said to be of a gross or extreme nature. It is a factor in the mix - no more and no less.

35 I regard the explanation for the lateness of this application as inadequate. This is not a reflection upon Mr Richards, who received the brief late and set wheels in motion, pretty much immediately, to plead statutory breach. Routinely, in these types of cases, statutory breach is pleaded (often without much factual merit) and it is a matter of a little surprise when it is absent. Notwithstanding this, in the particular circumstances of this case, I accept that reasonable minds may differ on whether to plead statutory breach and I am not critical of the drafter of the original SOC. The decision to seek leave to amend against both defendants should have been made much earlier, however, and listed for hearing before an associate justice. Additionally, the case should not have been certified as ready for trial with these issues unresolved.

36 The plaintiff seeks to add amended particulars (h) and (i) to his particulars of negligence. These particulars are set out in paragraph 6 of these reasons. Further particular (h) alleges that the second defendant should have placed and maintained signs on the waste bin, warning about the risks of climbing onto the waste bin. As I have said, Mr Morris contended that this particular constituted a new case and that the pleadings were defective in that they did not make any allegation of the precise duty owed that was said to be breached by this particular.

37 In my view, further particular (h) does not constitute a new case. It is an advance (in particularity) on existing particular of negligence (d) which reads, 'failing to warn the plaintiff of the danger of the injury', but it is not a new case. I doubt there is any material prejudice in allowing this amendment.

38 Further particular (i) alleges that the second defendant designed the pick-up points of the waste bin so as to encourage people to use them as a step. The pick-up points have a horizontal surface and I understand the plaintiff will say he used this surface as a step so as to reach his position on the rim.[38] The existing particulars of negligence were focussed largely on inadequacies and dangers of the lid mechanism and the failure to warn about the potential for injury or provide instructions about safe work practices. There has been some notice however of the plaintiff's use of the pick-up point as a step, and of his expert's criticism of its design.[39] Notwithstanding this, I accept that this is a new aspect to the plaintiff's case against the second defendant and some prejudice may result if I allow this amendment.

39 Mr Morris submitted that the proposed amendments in their current form were defective in that the precise duty said to be breached was not identified. Pleadings are not statutes and the common law is a robust jurisdiction. Paragraph 8 of the SOC alleges that the injuries were caused by the negligence of both defendants. It is implicit from the pleadings that they allege as against the first defendant a breach of the duty every employer owes to its employees, and as against the second defendant, a breach of its common law duty to take reasonable care for the safety of others. Mr Richards, when pressed, expressed this as the Donoghue v Stevenson[40] duty. If Mr Morris requires further particulars of how the plaintiff's case is put, he can apply for them. But if there is a deficiency in the failure to clearly articulate the precise duty said to be breached (which I doubt), in my view, it has little to do with whether I ought allow these two amendments to the particulars of negligence.

40 Balancing these competing factors as best I can, I will allow the plaintiff leave to amend by adding paragraphs 11, 12, 13 and 14 to the proposed FASOC. The effect of this is that the plaintiff is permitted to plead the prevention of falls alleged statutory breaches (reg 3.3.1ff) and the provision of information, instruction and training alleged statutory breaches (reg 2.1.2(1)ff). I will not grant leave to the plaintiff to plead the hazardous manual handling alleged statutory breaches (reg 3.1.1ff). I have reached these conclusions mindful of the considerations that I have set out in the body of these reasons. In my view, there is a vital public interest in an injured worker being able to pursue as complete an action as the law allows against an allegedly negligent employer or one who allegedly acts statutorily unlawfully. There are of course other important factors, not least of which are proper court management and public confidence in the court system. I cannot discern irreparable prejudice to either defendant or inordinate pressures on corporations, and I am considerably influenced by my assessment that there is a factual basis to some of the proposed amendments. My grant of leave is confined to those amendments. The plaintiff's explanation is, of course, unsatisfactory, but the fault lies not with the plaintiff but with his practitioners. On balance, I consider that the plaintiff should be allowed the opportunity to have his complete day in court and not something less than that.

41 Insofar as the two proposed particulars of negligence alleged against the second defendant are concerned, I shall allow leave to the plaintiff to make these amendments. Particular (h) is, in my view, an expansion of a previous particular of negligence and there is no particular prejudice attached to it. Particular (i), as I have observed, creates a new aspect to the case against the second defendant, although it cannot have come as a complete surprise. I have considered the factors set out in paragraph 15 of these reasons. I consider there is some factual merit to both new particulars and, given that the trial date is to be vacated in any event, the second defendant will have time to consider a measured response.

42 I shall order that the plaintiff be allowed to add paragraphs 11, 12, 13 and 14, and particulars (h) and (i) of paragraph 8, to the amended statement of claim.

43 I will reserve for the trial judge the question of the first and second defendants' costs thrown away by reason of this late amendment application. I will make no costs order arising from the vacation of the trial date as I consider its cause, an underestimation of the trial duration, was the joint product of all parties.

[1] I shall refer to the statement of claim as SOC, the amended statement of claim as ASOC, and the proposed further amended statement of claim as proposed FASOC.

[2] Occupational Health and Safety Regulations 2007 reg 1.1.5 (p 26).

[5] Monday 11 June 2018 was a public holiday.

[8] Borg v Trustee for AG Airwork Services Trust [2013] VSC 497; Tinworth v W.V. Management Pty ltd & Anor (Ruling) [2009] VSC 552.

[9] Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436; Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281.

[12] [2009] HCA 27; (2009) 239 CLR 175 181-182 [4], 182 [5] (French CJ), 214 [100], 214 [101], 217 [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[21] See Orders of 20 February 2017, 15 March 2017 and 1 June 2018; Emails from the Court of 21 February 2017 and 16 March 2017; Notice of Trial filed by the plaintiff on 9 May 2018.

[22] [2009] HCA 27; (2009) 239 CLR 175, 182 [5] (French CJ).

[23] Plaintiff's answers to the first defendant's interrogatories dated 8 August 2017; Plaintiff's answers to the second defendant's interrogatories dated 8 August 2017.

[24] Occupational Health and Safety Regulations 2007 reg 1.1.5 (p 25).

[28] Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281, 297 [41].

[34] See regs 3.3.1, 3.3.1, 3.3.3 and 3.3.4.

[38] Plaintiff's answers to the second defendant's interrogatories dated 8 August 2017.

[39] Ibid; I am told that a critical reference to the design of the step can be found in an expert report prepared by the plaintiff and served on the defendant approximately 18 months ago. This assertion by the plaintiff's counsel was not disputed.

Health and Safety Act 2004

Health and Safety Regulations 2007

Occupational Health and Safety Regulations 2007

Court (General Civil Procedure) Rules 2015

At a glance

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Judgment (129 paragraphs)

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Legislation Cited (5)

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