Scarlett Anne Robinson bhnf Athony James Robinson v Riverina Equestrian Association

JUDGMENT

1. This is an application by the defendants to join the plaintiff's mother as a cross-defendant.
2. The plaintiff is Scarlet Robinson. Her tutor is her father Anthony Robinson. The second defendant is Equestrian Australia Limited. The third defendant is Charles Sturt University. The fourth defendant is Chloe Mannell. By her tutor, Anthony Robinson, her father, the plaintiff commenced proceedings in the District Court of NSW on 2 November 2020 against the first defendant, Riverina Equestrian Association, the second defendant, Equestrian Australia, the third defendant, Charles Sturt University and the fourth defendant, Chloe Mannell.
3. The first and second defendants were duly incorporated associations who conducted equestrian competitions in New South Wales such as the New South Wales Country Show jumping Championship of 4 November 2017.
4. The third defendant had the care, control and management of premises known as Charles Sturt University, Wagga Wagga.
5. The fourth defendant was the rider of a horse on 4 November 2017 at Charles Sturt University, Wagga Wagga.
6. By notice of motion filed on 16 September 2022, the defendants relevantly seek orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') rule 9.1(1) that leave be granted for the four defendants to file and serve the proposed amended cross-claim ('PAXC') against the plaintiff's mother, Melissa Robinson.
7. Both the plaintiff and the proposed cross-defendant oppose the orders sought.
8. The plaintiff/the proposed cross-defendant oppose the motion on the basis that: 1. There is no reasonable explanation as why the cross-claim was not filed in accordance with orders of the Court. 2. There is no satisfactory explanation as to why the cross-claim was not filed in accordance with the provisions of the UCPR. 3. There is no identification of the proposed cross-defendant's duty and how it was breached.
9. I shall deal with the related issues (a) and (b) together followed by (c).
10. On 23 February 2023, the matter was part heard. I granted an adjournment as the plaintiff was only served with the Notice of Motion seeking to file a cross-claim on the plaintiff's mother as cross-defendant an opportunity to be heard. When the hearing resumed on 21 April 2023, she was legally represented and relied upon her affidavit dated 21 April 2023, where she deposed: "… 2. I was first served with documents with respect to the Notice of Motion in February of this year. I don't recall what I was served with at that time. I felt so physically unwell after I received those papers that I vomited. 3. I was then served with further documents on or about 15 March 2023. 4. Prior to being served with the documents I was already seeing Michael Steege, a psychologist. I usually speak with him once per month. I commenced seeing him in about December 2022 as I noticed I was experiencing flashbacks to the accident a couple of times each week. 5. Since I was served with the documents seeking to join me to the proceedings, I now experience the following symptoms on a daily basis: a. I become incredibly distressed when trying to discuss the incident with anyone. b. Extreme anxiety which at times makes me feel physically unwell c. I have experienced flashbacks relating to the accident involving Scarlett in the car when driving; d. I have experienced flashbacks relating to the accident involving Scarlett in evenings when trying to go to sleep; e. I have difficulty getting to sleep; and f. I have become wary of anybody coming to our property unannounced. 6. I have not received any formal diagnosis."

Background

1. On 4 November 2017, when the plaintiff was 4 years old and in the company of her mother, the proposed cross-defendant and other family members. They attended the New South Wales Country Show Jumping Championships organised by the first and second defendants and held at the Equestrian Centre, Charles Sturt University.
2. After entering the premises, and while standing beside a roadway in an area designated for the parking of horse floats, a horse ridden by the fourth defendant was ridden in close proximity to where the plaintiff and her mother were standing. Something occurred to startle the horse and it reversed at speed in the direction of the family, who were standing about 10 metres from where the horse commenced its movement, colliding with the plaintiff and falling on her.
3. The plaintiff suffered severe personal injuries including a complex fracture at the base of her skull.
4. On 2 November 2020, the plaintiff, by her tutor, filed a statement of claim in the District Court of NSW alleging personal injuries arising from the incident on 4 November 2017.
5. All of the defendants deny they are liable for the plaintiff's injuries, loss and damage as alleged in the claim and rely upon their respective defences to the claim filed on 24 January 2022.
6. On 4 April 2022, by way of summons, the plaintiff sought leave to transfer proceedings numbered 2020/00313256 filed in the District Court to this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW) ('CPA'). The application was opposed.
7. On 19 July 2022, Walton J made orders to transfer the proceedings.
8. An application for infant approval came before Campbell J on 23 November 2022. His Honour did not approve the settlement pursuant to s 76 of the CPA.
9. There has been an unfortunate procedural history concerning the filing of the PAXC and the correspondence concerning the filing of the cross-claim.
10. The timetable directions in the District Court and the Supreme Court and lack of steps taken by the fourth defendant's solicitor in relation to the defence and cross-claim are set out as follows: Timetable directions Date Description Court Book Reference page number 26.2.2013 Plaintiff's date of birth 58(5) 4.11.2017 Date of accident 3 (paragraph 5) 2.11.2020 Statement of claim filed in District Court, NSW 1, 63 9.12.2020 Advice from defendants' solicitors to defendant re cross-claims 747 24.5.2021 Matter listed for directions before District Court. No orders sought in relation to a cross-claim 817 (26) 28.6.2021 Defendants again ordered by Judicial Registrar to file defences and cross-claims by 2.8.2021 751 (5) 30.6.2021 Matter listed for hearing on 7.3.2022, defendants had still not served defence to the claim nor any cross-claim 751 (6) 7.9.2021 Letter forwarded to defendants' solicitor regarding prejudice to the proposed cross-claim. 51 (11) 24.1.2022 Defendants filed defence in District Court, Sydney 20-42 15.2.2022 Plaintiff files notice of motion in District Court to vacate hearing 48 (12) 7.3.2022 Matter listed for hearing in District Court at Sydney 48 (paragraph 10) 4.4.2022 Plaintiff's solicitor files affidavit in support of transfer of proceedings to Supreme Court 48 (13) 4.4.2022 Summons for transfer of the matter to the Supreme Court filed 60 (12) 30.6.2022 Summons for transfer heard by Walton J 48 (14) 19.7.2022 Judgment by Walton J ordering transfer of proceedings from District Court to Supreme Court 48 (14) 30.6.2022 Advice from defendants' solicitor to client re cross-claim 747 20.7.2022 Email from defendants' solicitor to client re cross-claim 747 22.7.2022 Email from defendants' solicitor to client re cross-claim 747 25.7.2022 Email from defendants' solicitor to client re cross-claim 747 2.8.2022 Defendants provide instructions to file cross-claim 48 (17) 2.8.2022 Email from defendants' solicitor to client re cross-claim 747 23.8.2022 Defendants send proposed cross-claim to plaintiff's solicitors 48 (18) 23.8.2022 Email from defendants' solicitor to client re cross-claim 747 25.8.2022 Matter listed for directions in Supreme Court 48 (15) 26.8.2022 Email from defendants' solicitor to client re cross-claim 747 2.9.2022 Email from defendants' solicitor to client re cross-claim 748 16.9.2022 Defendants file notice of motion seeking leave to file cross-claim 748 23.11.2022 Campbell J declined to approve settlement between defendants and plaintiff 470 (18)

[my emphasis]

1. See also Ex D4/2 for insurer's involvement.

Proposed amended cross-claim

1. The proposed amended cross-claim ('PAXC') relevantly pleads as follows: "[9] For the purpose of this Cross Claim only, and without admission of liability, the Cross Claimants repeat paragraphs 5, 6, 7 and 9 of the Claim. [10] The Plaintiff was 4 years old at the time of the Incident. [11] The cross-defendant was the parent and/or guardian of the plaintiff at all relevant times and had a duty of care to ensure the safety of the plaintiff. [12] Further, the Cross Defendant had participated in and/or attended equestrian events and competitions and was, or ought to have been aware of how equestrian events or competitions were conducted, managed and/or arranged, including the show jumping event known as the NSW Country Show Jumping Championships which were being conducted on 4 November 2017 at Agricultural Drive, Wagga Wagga in the State of New South Wales (Event). [13] As such, but in any event, the Cross Defendant was, or ought to have been, aware that the said event resulted in a large number of members of the public attending upon the event. [14] In the circumstances, but in any event, and on the basis the plaintiff's allegations are proven, the Cross Defendant was, or ought to have been, aware of the following: a. that a warm-up area for horses competing at the event was provided for; b. that she and the Plaintiff were standing at the side of an access road adjacent to which cars and/or horse floats were parked; c. that she and the Plaintiff were standing at the side of the said roadway where horses were warming up, one of which was being ridden by the Fourth Defendant; d. that while in that position, the Fourth Defendant's horse approached her and the plaintiff and stood some distance away; e. that while the Fourth Defendant was in that position, another horse apparently approached the Fourth Defendant and her horse, and at about the same time the Fourth Defendant's horse commenced to move backwards towards the Plaintiff; f. that the Fourth Defendant's horse was approximately 10-15 metres from where the Cross Defendant and the Plaintiff were standing and, while standing there, the Fourth Defendant's horse was apparently getting agitated, shaking its head up and down and appeared to be wanting to move; g. that riders of horses should not dismount a horse when it showed signs of being agitated by moving its head violently; and h. that horses should be moved away from pedestrians, including the plaintiff. Particularly when a horse was being approached by another horse. [15] In these circumstances, the cross defendant owed the plaintiff a duty of care given she was in as good as, if not better, position than any of the Cross Claimants to know, or ought to know, that in the event it is found that the facts pleaded herein gave rise to a foreseeable and not insignificant risk of harm which a reasonable person would have taken precautions against, she too ought to have taken those precautions. [16] Further, and in the circumstances, the cross defendant knew, or ought to have known, that should the event on the day of the injury be found to not have been conducted, managed and/or arranged properly and adequately for the safety of competitors and members of the public, the Cross Defendant was in the same or better position to have known that, and that there ought to have been provided, inter alia, the following: a. a dedicated warm up area for horses participating in the said competition; b. fences and/or boundary placements within which horses could warm up; c. warning signs that horses would be warming up within the area that she and the plaintiff had to navigate in order to attend the said show lumping event; d. clearly defined competition and warm up areas; e. permanent and/or temporary fencing within the area for the warm up of horses; f. a warm up area that was of a suitable size noting there were 162 competitors participating in 1,091 show lumping rounds; g. a separate warm up area from the carparking and/or horse float parking area where pedestrians might be leaving their cars and moving through the area where horses would be warming up; h. compliance with the Australian Horse Industry Council Code of Practice by providing a designated warm up area; i. coloured bunting with steel capped posts to identify the limits of the warm up area: j. Stewards and/or Marshalls to manage the warm up area; k. designated carparking and/or horse float areas; l. designated walkways from the carparking areas to the show lumping area without requiring members of the public to move through areas where horses could come into contact with them or be close to them; and m. an inability for horses and their riders to approach members of the public, including the plaintiff. [17] Further, and in all the circumstances, the Cross Defendant knew, or ought to have known, that there was a risk of harm that a horse that was allegedly not under control and/or not separated from members of the public might come into contact with a person or persons including the plaintiff. [18] The said risk of harm was not insignificant and, in the circumstances, a reasonable person in the position of the Cross Defendant would have taken precautions in response to the said foreseeable and not insignificant risk of harm. Reasonable Precautions a. taking steps to ensure the Plaintiff was not in a position of peril; b. keeping a proper lookout for the safety of the Plaintiff: c. observing her surroundings and taking steps to appropriately mitigate the risk to the Plaintiff as a result of the unpredictable nature of a horse; d. taking reasonable care for the Plaintiff's safety; e. exercising caution in the circumstances; f. maintaining a safe distance from the Fourth Defendant and her horse; g. exercising reasonable care for the Plaintiff, and heeding the Warning Sign, by not placing the Plaintiff in close proximity to a horse: h. taking proper precautions for the Plaintiff's safety in the circumstances: and i. moving away from the Fourth Defendant's horse immediately when it was apparently getting agitated, shaking its head up and down and appeared to be wanting to move. [19] At all material times the Plaintiff was in the company of, and under the care and control of, the Cross Defendant when attending the Event as a spectator. [20] To enter the Event, the Plaintiff and Cross Defendant passed a sign which notified of a 'high risk area' and cautioned entrants to the presence of horses (Warning Sign). [21] The Fourth Defendant was a participant in the Event, [22] During the course of the Event, and while the Fourth Defendant was riding her horse, the Cross Defendant and Plaintiff approached the area where they knew the Fourth Defendant and her horse were located. [23] While in close proximity to each other, the Fourth Defendant and Cross Defendant engaged in discussion. [24] Without warning, the Fourth Defendant's horse was spooked and the Fourth Defendant was dislodged from her horse. [25] The Fourth Defendant's horse, which was riderless at the time, then collided with the Plaintiff. [26] The Cross Claimants say that if the Plaintiff sustained injury, loss and damage as alleged (which is not admitted), then such injury, loss and damage was caused or contributed to by the negligence of the Cross Defendant. Particulars of negligence a. Placing the Plaintiff in a position of peril; b. Failing to keep any or any proper lookout for the safety of the Plaintiff; c. Failing to observe the surroundings and appropriately mitigate the risk to the Plaintiff as a result of the unpredictable nature of a horse; d. Failing to take any or any reasonable care for the Plaintiff's safety; e. Failing to exercise caution in the circumstances; f. Failing to maintain a safe distance from the Fourth Defendant and her horse; g. Failing to exercise reasonable care for the Plaintiff, and heeding the Warning Sign, by placing the Plaintiff in close proximity to a horse; and h. Failing to take any or any proper precautions for the Plaintiff's safety in the circumstances. i. Failing to move away from the Fourth Defendant's horse immediately when it was apparently getting agitated, shaking its head up and down and appeared to be wanting to move. [My emphasis]"

The law

1. Section 22(2) of the CPA reads: "22 Defendant's right to cross-claim … (2) Relief may not be granted under this section against a person who is not a plaintiff in the first proceedings unless the relief relates to, or is connected with, the subject of the first proceedings."
2. UCPR r 9.1(1) relevantly provides that a party may make a cross claim in proceedings commenced by statement of claim within the time limited for the party to file a defence. UCPR r 9(1) reads: "9.1 Making of cross-claim (1) A party (the cross-claimant) may make a cross-claim - (a) in proceedings commenced by statement of claim, within the time limited for the party to file a defence, or (b) in proceedings commenced by summons, before the return day specified in the summons, or within such further time as the court may allow." …
3. The time for filing a defence is 28 days after service of the statement of claim or such other time as the court directs: UCPR r 14.3(1). UCPR r 6.10(1)(a)(i) reads as follows: "6.10 Time for appearance (cf SCR Part 7, rule 5, Part 11, rule 6) (1) For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is - (a) in the case of proceedings commenced by statement of claim - (i) 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or …"
4. UCPR 14.3(1) reads: "14.3 Defence (1) Subject to these rules, the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence. …"
5. Sections [56]-[59] of the CPA read: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3) - (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. [My emphasis] 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial."

Explanation of delay

1. The explanation for delay given is by Mitchell Stein, solicitor for the defendants in his affidavit dated 15 September 2022. Where he deposes: "7. In her pleading, the Plaintiff alleges she attended the NSW Country Showjumping Championships (Event), organised by the First Defendant, which were conducted at the Third Defendant's premises, when the Fourth Defendant's horse collided with her causing injury (Incident). At the time, the Plaintiff was accompanied, inter alia, by her mother, Melissa Robinson, the proposed Cross Defendant to the Defendants' Cross Claim 8. The Plaintiff, by her tutor, presses a claim for damages against each of the Defendants for injuries arising out of the Incident 9. In support of her claim, the Plaintiff relies, inter alia, upon a liability report of Dr Andrew McLean, dated 28 August 2020. One of the assumptions Dr McLean was asked to make (at paragraph 9 on page 5 of the report) was that the Fourth Defendant had approached the Plaintiff and her mother, coming to approximately 10-15 metres from where they were standing and, while standing there, "the horse was noted by the plaintiff's mother to be getting agitated, shaking its head up and down and appeared to be wanting to move". Shortly after that the Incident occurred. 10. The matter was listed for Hearing in the District Court at Sydney on 7 March 2022, At final stage, and having regard to the jurisdictional limit of that Court, my client's instructions were to proceed to a hearing unless settlement of the Plaintiffs claim could be achieved Negotiations had proceeded, including an Informal Settlement Conference, however a settlement could not be reached and the matter was prepared for hearing on behalf of the Defendants. 11. Although consideration had been given previously to the filing of a Cross Claim against the Plaintiffs mother, my instructions at the time were not to do so given the jurisdictional limit of the District Court and the limited damages that might be awarded to the Plaintiff. I also had in mind the progress of settlement negotiations, which at the time I thought would likely result in a resolution of the matter."
2. In Credit Solutions Group Pty Ltd v Obelisk Ventures Pty Ltd (No 2) [2019] NSWSC 488, Davies J said at [32] and [34]: "[32] In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 the plurality said at [102]-[103]: [102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. [103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case. … [34] Section 58(1) requires the Court to act in accordance with the dictates of justice when any order for an amendment of a document is being sought. Sub-section (2) requires that the court have regard to ss 56 and 57 of the Act when determining what are the dictates of justice, as well as the matters listed in sub-s (2)(b) which relevantly include the following: (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iv) the degree to which the respective parties have fulfilled their duties under section 56(3); and (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction."
3. In ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167, Hodgson JA (with whom Handley JA agreed) said at [30]: "[30] In my opinion, a first step for an applicant in relation to an application such as this is to lead evidence appropriate to give the Court a satisfactory understanding of why it was that proceedings were not commenced in time. In this case, the absence of any material from Mr. Doeland's previous solicitor meant that the Court could only guess at the true explanation of why proceedings were not commenced. It is not for the respondent to such an application to search out a previous solicitor so that the respondent can explore the circumstances: the onus is squarely on an applicant to provide an explanation, and in the course of doing so to put the Court in a position of understanding just why the proceedings were not commenced in time."

Defendants/Cross-claimants' submissions

1. The defendants/cross-claimants refer to ss 56 to 60 of the CPA which are relevant and that the issuing of the cross claim is actually consistent with the overriding purpose of the Act, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. The plaintiff's mother is almost likely going to be a witness in the plaintiff's case and the issuing of the cross-claim will not affect the expedition conduct of the proceedings.
3. The defendants/cross-claimants concede that prima facie, there would be nothing to prevent the defendants form issuing separate proceedings seeking indemnity or contribution or both from the proposed cross-defendant. However, in the interests of justice, and in accordance with the overriding principles in s 56 of the CPA, it was submitted that the proper course would be to permit the issuing of the cross-claim in these proceedings, particularly given the plaintiff's mother is almost certainly going to give evidence at the hearing.
4. The defendants/cross-claimants also submit that the proceedings in the Supreme Court are likely now to be placed in the not ready or inactive list given the plaintiff's age and the likely time period that needs to elapse before any further neuropsychological assessment is to be undertaken in accordance with Dino Cipriani's report.
5. According to the defendants/cross-claimants, it is going to be a number of years before further testing can be undertaken on the evidence. He noted that the whole point of transferring the proceedings from the District court to the Supreme Court was based on the report of Dino Cipriani dated 18 December 2021, served by the defendants who raised this cognitive issue but said it will take some time to actually know with some degree of confidence if there is in fact some permanent damage (T.42-50).
6. Counsel for the cross-claimants presumed that the plaintiff would not commence high school for another three years, because she is only ten and has got another six years of high school if she goes through to the HSC. Counsel noted that this would not cause real prejudice to the plaintiff as there is no delay caused by the joinder of the cross defendant. Nor has anything changed in the period of time since the orders were first made by the District Court.
7. A related factor to be considered as to why leave ought to be granted is found in section 50C of the Limitation Act 1969 (NSW). Section 50C(1)(b) reads: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - … (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note - The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3."
8. Subsection 50C1(b) of the Limitation Act provides a twelve year long-stop limitation period that may impact upon the defendant's entitlement to bring separate proceedings. Counsel for the defendant argued that this would in contravention of section 50 and 60 of the CPA.
9. Counsel for the defendants argued that section 50C(1)(b) of the Limitation Act 1969 (NSW) would significantly prejudice the defendants, because they would be prevented from bringing a claim. If the plaintiff had to go to year 12 that would be by 2032 and the 12 year long-stop limitation period would have already expired at least three years beforehand.
10. In contrast, it was submitted that there would be no prejudice to the plaintiff whether the cross claims were issued in time, in accordance with the previous order made by the District Court, or whether leave is granted now and it was that this case remains in abeyance.

Plaintiff/Cross-defendant's submissions

1. Prima facie, the defendants/cross-claimants made an informed decision to allow the time period to file a cross claim to expire.
2. The court has the discretion to permit cross-claims to be filed outside the time period permitted by UCPR 9.1(1). The direction is conferred by the rule itself, as well as UCPR 1.12, which provides a general power on the court to extend or abridge time.
3. The court's direction must be exercised judicially and in such a way as to ensure no prejudice is suffered by the potential cross defendant as a result of the late joinder.
4. Counsel for the proposed cross-defendant argued that it is difficult to conceive that other witnesses may not now be available to be contacted as these proceedings were originally commenced in 2020. Rather, it was argued that one would have expected that the defences should have been filed in late 2020 or perhaps early in 2021.
5. The cross-claimants have been represented by Hall & Wilcox since the commencement of proceedings. In the circumstances, these are not defendants who have not had the benefit of legal advice. Based on Mr Stein's affidavit, they have considered whether to put a cross‑claim on and they made a tactical decision not to do so. If that is the case, it is the cross-defendant's submission, that it is only in rare circumstances that they should be afforded the opportunity at this stage of the proceedings. The cross-defendants submit that these circumstances do not fall within the "rare" category and are not rare.
6. Mr Stein's affidavit does not provide any satisfactory explanation for the delay in these proceedings, not only from the first order in December of 2020, which was with respect to putting on any cross‑claim, nor from the date that they did file the defences in January of 2022. In fact, they had notice from April of 2022 that there was a chance that these proceedings would be transferred to the Supreme Court.
7. Counsel for the cross-defendant noted that the first notice of any intention to file a cross‑claim was not received by the plaintiff until 23 August 2022, some months later. It took a further three weeks for the notice of motion to be filed. It is apparent on the evidence that the proposed cross‑defendant was only served this year. It would be difficult to frame the defendants' actions as having the required expedition that would allow the Court to exercise its discretion. In the cross-defendant's submission, this tardiness militates against the Court exercising that discretion in these proceedings.

Resolution

1. It is my view that during the period between 9 December 2020 to 2 September 2022, despite much correspondence by the defendants' solicitors, the insurer or the defendants did not give instructions to file a cross-claim. It was not until 22 September at the earliest instructions were given. The defendant's solicitors first sought advice from the defendants' about issuing a cross-claim on 30 June 2021, 30 June 2022, 20 July 2022, 22 July 2022, 25 July 2022, 2 August 2022, 23 August 2022, 26 August 2022 and 2 September 2022 and corresponded with the defendants and insurer concerning the filing of a cross-claim.
2. While I accept there was a limited period when settlement negotiations were being conducted, this does not excuse the defendants from their otherwise contumelious delay in filing the cross-claim.
3. On 16 September 2022, a Notice of Motion of filed by the defendants seeking leave to file a PAXC. From the chronology of directions set out earlier in this judgment, it can be seen that the defendants failed to give instructions to their solicitor to file a cross-claim. They then failed to comply with Court directions to file a cross claim. They then failed to comply with Court directions to file a cross-claim stemming from 9 December 2020 to 16 September 2022, a period of almost two years. By 30 July 2022, the defendants' solicitor contacted its client concerning the cross-claim. Eventually, on 23 August 2022, the defendants sent the plaintiff a copy of the proposed cross-claim.
4. Finally, on 16 September 2022 the defendants filed a notice of motion seeking to file the cross-claim.
5. I am of the view that the insurer and/or the client first was given advice concerning the cross-claim on 9 December 2020, but chose not to give instructions to file it until 2 August 2022 - a delay of nearly 2 years. The insurer and/or the client made an informed and tactical decision not to file the cross-claim in accordance with the directions of both the District and Supreme Courts. In these circumstances, I find the defendants explanation for delay is unsatisfactory in filing the cross-claim in the time provided by the UCPR. I also find the defendants/cross-claimants explanation for delay as to why the cross-claim was not filed in accordance with the orders of both the Supreme and District Courts most unsatisfactory.

(c) Whether the cross-defendants duty of care has properly been identified?

Plaintiff/Cross-defendant's submissions

1. At paragraph [11] of the proposed cross-claim, it is relevantly pleaded that the cross-defendant was a parent and guardian of the plaintiff, (which is not in dispute), but further, that at all relevant times had a duty of care to ensure the safety of the plaintiff.
2. The cross-defendant submitted that the scope and content of such a duty of care is not clear from the pleading itself.
3. As was noted by Basten JA in Hoffman v Boland [2013] NSWCA 158 ('Hoffman') at [27] and [28]: "[27] [Tweed Shire Council v Howarth [2009] NSWCA 103] was concerned only with the availability of the cross-claim, not with its merits. The cross-claim having been struck out prior to trial. Reference was made to the comments in Abraham that "bringing up children cannot be made risk free, and that exposure from time to time to risks of harm is inherent in the process of growing up, new experiences and maturing in an appropriate way." While noting that such matters were not relevant to the circumstances then before the court, they were nonetheless accepted as relevant to the determination of the claim. [28] Sappideen and Vines, Fleming's the Law of Torts (10th ed, 2011) stated at p 766 that "[t]here is consensus that the parents' duty to feed, clothe, maintain, educate and generally care for their child is not enforceable in tort, whatever its moral, or other legal (for example, criminal) sanctions". They also found in the cases denial of "any general custodial duty of care towards the child", referring to Barrett v Enfield LBC, Robertson v Swincer and Towart v Adler, but noting two exceptions, Anderson v Smith (1990) 101 FLR 34 and Curmi v McLellan [1994] 1 VR 513. The authors accepted that a duty might arise where the parent was present and led the child along or across the road."
4. Basten JA in Hoffman quoted McCurdy in "Torts Between Persons in Domestic Relation", 43 Harvard L Rev 1030 at 1077 (1929-1930) at [32]: "[32] If a cause of action is ever to be recognised between the parent and minor child for a personal injury, the relationship must necessitate to some extent a treatment different from that applicable to ordinary persons. Three basic factors cannot ignored. The fact that the parties are in such close relationship must render many innocuous acts and omissions that would usually be tortious…Moreover, the amount of care required to meet the standard of due care is necessarily affected by the relation. Conduct in the family differs from ordinary conduct. The parties are in a common establishment and are engaged for a common benefit in a common domestic enterprise…But since the parent likewise finds himself in the relation through no legal choice, he should at most be held to no higher standard of care that his own abilities and should ordinarily own in the affirmative conduct of the domestic establishment, no greater duty to the members thereof that he exercise in respect of himself."
5. His Honour continued at [37]: "[37] Returning to the present case, the appellant submitted that the trial judge had erred by failing to take into account the extensive list of factors relevant to considering whether a duty of care exists, as set out by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]. These "salient features" provide a valuable checklist of the kinds of factors which can be of assistance. They do not constitute mandatory considerations, failure to address which will constitute error of law; nor do they lead to a formula which will provide a result in a particular case. Each involves considerations of varying weight; some will be entirely irrelevant. What is necessary is to focus upon the considerations which are relevant in the circumstances of the particular case."
6. Sackville AJA (with whom Barrett JA agreed) said at [113], [117] and [123]: "[113] In determining whether the primary Judge was correct to find that Reverend Hoffmann owed the Plaintiff a duty of care, it is a mistake to consider first what measures could have been taken to prevent the injury and to take those measures as the basis for determining the relevant duty, its scope and content. To take this approach risks simply assuming that because the defendant could have avoided the accident by taking certain precautions, there must have been a duty to take those precautions. Whether a duty exists and, if so, the scope and content of that duty depends on the foreseeability of the relevant risks and the nature of the relationship between the plaintiff and the defendant: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, at [19] - [20], per French CJ and Gummow J (dissenting, but not on these issues)." … [117] The High Court has considered whether a parent or grandparent owes a duty to take precautions to prevent injury to a young child in the care of the parent or grandparent. In Hahn v Conley, a three year old child was struck by a vehicle while crossing a road in the Barossa Valley in South Australia. The child was being cared for by her grandparents. She had wandered away from the house, but initially remained on the house side of the road. The grandfather was on the opposite side of the road conversing with a neighbour when he heard the child cry out. He said "I am over here Anne". There was no dispute that the driver of the vehicle had been negligent. The question before the Court was whether the grandfather had also been negligent and thus was liable to contribute to the damages awarded to the child. … [123] In St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185, Ipp JA (with whom Basten JA and Young CJ in Eq agreed) stated (at [31]) the ratio of Hahn v Conley, as follows: while the mere existence of a parent/child relationship does not bring about a duty of care on the part of a parent towards a child, the circumstances of a particular situation may give rise to such a duty. Hahn v Conley therefore establishes no more than that a parent (or grandparent or other carer of a small child) may owe a duty of care to the child, depending on the circumstances of the case. The actual decision in Hahn v Conley turned on the particular facts of the case."
7. The cross-claim should identify the scope and content of the duty of care of the cross-defendant and in what manner that duty was breached. The cross-defendant submitted that the particulars within the cross-claim at paragraph [19] are so general as to not provide any information as to the content of the duty and in what manner it was breached.
8. The cross-defendant submitted that it is difficult to conceive of a parent who would actually be able to comply with such a duty of care with respect to their children. Counsel suggested that the cross claim would almost suggest that a parent is always liable for a third party's actions that would injure their child and that simply could not be the case at law.

Resolution

1. I refer to paragraphs [11], [12], [13] and [15] of the PAXC, as set out earlier in this judgment.
2. In 2017, the plaintiff and her mother were standing at the side of an access road adjacent to which cars or horse floats were parked. While the plaintiff was standing on the road with her mother, the fourth defendant on a horse rode to a position which was a short distance from the plaintiff.
3. While the fourth defendant on her horse was stationary at the side of the roadway, another horse approached the fourth defendant and the fourth defendant's horse and at and about the same time the fourth defendant's horse commenced to move backwards towards the plaintiff.
4. In moving backwards, the fourth defendant's horse collided with the plaintiff and fell on to the plaintiff resulting in injury. The risk of harm comprised the risk of the plaintiff coming into contact with a horse which was not under control and was not separated from members of the public. The fact that the horse riders were not separated from the public is not the mother's responsibility.
5. It has been held that a grandparent was negligent in circumstances where he called the grandchild across the road by saying "I am over her Anne". The situation here is very different. The rider lost control of her horse, such that the horse moved backwards and collided with the plaintiff. It is difficult to envisage how the plaintiff's mother owed a legal duty of care for her daughter in these circumstances.
6. In other words, looking at the strength of the cross-defendants cross-claim, it is my view that it is unlikely to succeed at trial. If it did, this would mean that a parent attending a sporting event as a spectator with their child or children could be held liable for a breach of a duty of care that rises above the normal duty of care a parent has to their child.
7. I accept that Dino Cipriani, psychologist, in his report dated 18 December 2021 opined that it is premature to offer an opinion on whether there will be permanent cognitive and academic effects as this might only become evident during high school and prognosis appears favourable at this stage. Scarlett will require a further assessment at the time of transfer to high school.
8. The plaintiff has a twin sister so she can provide some guidance as to whether the plaintiff will suffer permanent cognitive and academic effects from the incident. It may well be that the case will be ready for trial sometime during her high school years.
9. The defendants/cross-claimants submitted that they may be out of time to take proceedings against the mother if the plaintiff succeeds against them at trial. Then the defendants could file a statement of claim against the plaintiff's mother if the plaintiff succeeds against them by filing a Statement of Claim with the plaintiff's mother as defendant. While they say that the Limitation Act causes prejudice to them as they may be out of time to bring an action against the proposed cross-defendant.
10. In my view, there is a very small risk that the plaintiff/cross-defendant would be statute barred. This is because Dino Cipriani says the plaintiff is doing well and needs to be further assessed at the time of transfer to high school. That is in three years' time. Even allowing for a few more years for the plaintiff's condition to stabilise, it is still unlikely the defendants' claim will become statute barred.
11. I have also taken into account the number of times that the defendants' solicitor advised the insurer and/or clients of the need to file a cross-claim and that advice was ignored. Another factor in the exercise of my discretion, is the additional emotional effect will have on the plaintiff's mother if she is joined as a cross-defendant. Her evidence has been set out earlier in my judgment. In addition, it will lengthen the trial, as the other spectators who witnessed the accident, who can give an account of the layout of the roadway and the parking of the cars and horse floats may need to be called to give evidence. Expert evidence as to the safety of the layout may need to be obtained.
12. In the exercise of my discretion, the facilitation of the just, quick and cheap resolution of the real issues in these proceedings dictate that I refuse to grant leave to the defendants' to file the PAXC.

Costs

1. Costs are discretionary. Costs follow the events. Cross-claimants/defendants are to pay the cross-defendants costs.

THE COURT ORDERS THAT: 1. Leave to the defendants to file the proposed amended cross-claim is refused. 2. The defendants/cross-claimants are to pay the proposed cross-defendants' costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2023