Supreme Court of WA|2006-05-19

The Minister for Health v Brambles Australia Limited [2006] WASC 86 (19 May 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE MINISTER FOR HEALTH -v- BRAMBLES AUSTRALIA LIMITED [2006] WASC 86

Practice and procedure - Application for inspection of property - Order 52 r 2(1) - Whether inspection reasonably required - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 52 r 2(1)

Smith v Peters (1875) LR 20 Eq 511

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Mulley & Marney v Manifold [1959] HCA 23; (1959) 103 CLR 341

1 MASTER NEWNES: This is an application by the plaintiff for inspection of certain property, pursuant to O 52 r 2(1), by the plaintiff, its legal advisers and an expert witness. It arises out of a claim by the plaintiff against the defendant for indemnity in respect of payments made by the plaintiff to an employee who was allegedly injured in the course of her employment with the plaintiff while using a bin supplied by the defendant.

2 Order 52 r 2(1) provides, so far as relevant, that the Court may, on the application of a party to a cause or matter, make an order for the inspection of any property which is the subject-matter of the cause or matter, or as to which any question may arise.

3 By this application, the plaintiff initially sought an order in the following terms:

"The Defendant is to make access available to the Plaintiff, and its legal advisers and any expert witness retained by them including Dr Steven Chew, waste removal bins which are the same or substantially identical, in terms of its physical features, including dimensions and, in particular, the use of a metal lid on the bin ('sample bin'), to that which was in or available for use in or about October 1996 at the Hospital."

4 In the action, the plaintiff says that in 1995 it operated the Bentley Health Service and, in the course of its operations, sought from the defendant a tender for the provision of waste removal services at the premises of the Bentley Health Service. The defendant was a supplier of waste disposal goods and services.

5 On about 19 December 1995, the plaintiff entered into a contract with the defendant for the provision of waste removal services. The plaintiff says that, among other things, it was an express term of the contract that the defendant warranted that all goods and services provided under the contract would be free from deficiencies in design, performance, materials and workmanship, and that the defendant would maintain all bins provided under the contract to a safe and operational standard. The contract provided that the force required to lift the lid of a bin would not exceed 40N.

6 Under the contract the defendant was required to indemnify the plaintiff in respect of any claim made against the plaintiff for personal injury to any person arising out of or as a consequence of the supply of the waste removal services.

7 The plaintiff says that, on about 28 October 1996, an employee of the plaintiff was injured at the plaintiff's premises while lifting one part of the lid of a bin in order to place rubbish in it. The employee became incapacitated for work as a result of the injury. The employee made a claim against the plaintiff for damages for personal injury and the claim was subsequently settled by the plaintiff by payment of the total sum of $282,255.61.

8 In this action, the plaintiff claims it is entitled to be indemnified by the defendant in respect of the settlement sum alleging, in effect, that the defendant was in breach of contract and negligent. The plaintiff alleges, among other things, that the defendant supplied a bin that did not conform to the provisions of the contract in relation to the bin lid opening system and which was, by reason of the lid opening system, deficient in design and performance and unsafe to use.

9 The plaintiff initially pleaded that the accident had been caused by a bin with a plastic lid. That was consistent with the claim made against the plaintiff by the employee, out of which this claim arises. In the course of this action, the defendant has produced for inspection a bin with a plastic lid and it seems that expert evidence has been exchanged in relation to that bin.

10 Subsequently the plaintiff came to believe that, in fact, the bin in question had a metal lid, not a plastic lid and, on 25 November 2004, the plaintiff obtained leave to amend its claim to plead that the lid of the bin was made of metal and to amend the alleged dimensions of the bin to some extent. It seems from the evidence that the plaintiff believes the bin supplied by the defendant was of 3 cubic metres capacity, but that at the relevant time the defendant had more than one type of metal lidded bin which had that capacity, each type being of somewhat different dimensions.

11 I should also interpose that it appears from the evidence that the actual bin which the worker was allegedly using when the accident occurred was removed from the premises shortly after the accident in 1996 and the plaintiff does not have access to the actual bin. According to the defendant, it is likely that the defendant will not now be able to identify the actual bin, the relevant records of the defendant having been destroyed some time ago in the ordinary course of business.

12 It is now pleaded by the plaintiff that, pursuant to the contract, "the Defendant provided the Plaintiff with three bins to be used for general waste, one of which had dimensions of approximately 1230mm (h) x 1800mm (w) x 1405mm (d) and a metal lid divided into two parts. This bin was located in a car park on the southern side of [the premises]."

13 In par 8 of its defence the defendant does not admit that it provided the plaintiff with a bin of the dimensions alleged and says that if any bin was supplied by the defendant it did not have those dimensions and it had a plastic lid. In par 9, the defendant denies the employee was injured as alleged "and in particular denies that the worker lifted part of a metal lid".

14 By its defence, the defendant denies any liability to the plaintiff.

15 The plaintiff contends that the defendant's plea in par 8 involves a negative pregnant as to the existence of an alternative bin with different dimensions to those alleged by the plaintiff and with a plastic lid. However, no particulars of the plea have been sought by the plaintiff and the dimensions of any bin which, on the defendant's case, was supplied to the plaintiff remains unknown to the plaintiff at this stage.

16 Without necessarily conceding the point, counsel for the defendant acknowledged that a proper request for particulars of par 8 of the defence might be difficult for the defendant to resist and indicated that in its defence to the amended statement of claim the defendant would plead, so far as it was able, the dimensions of any bin that it says was supplied to the plaintiff at the relevant time.

17 I suggested to counsel that the application might be adjourned while such particulars were provided or, if necessary, sought, so that the specifications of the bins referred to in the defence, and which the plaintiff would then presumably seek to inspect, might be clarified, but counsel for the plaintiff was not attracted to that course.

18 In the course of the hearing, counsel for the plaintiff sought to amend the application to read as follows:

"The defendant is to make access available to the plaintiff, and its legal advisers and any expert witness retained by them, including Dr Steven Chew, waste disposal bins which are the same or substantially identical, in terms of its physical features, including dimensions, as those bins described in:

(a) paragraph 8 of the further amended statement of claim dated 26 October 2004; and

(b) paragraph 8 of the defendant's amended defence dated December 2004."

19 The application to amend was opposed by the defendant but I would allow it.

20 The relevant principles were not in issue on this application. Order 52 r 2(1) gives the Court a wide discretion to do what is reasonable and necessary for the administration of justice: Smith v Peters (1875) LR 20 Eq 511.

21 A great deal of affidavit evidence was filed in connection with this application and quite extensive submissions were made by counsel. It seems to me, however, that much of the affidavit material is not of great assistance and that the issue is a relatively simple one.

22 As I have mentioned, the plaintiff claims that the injury to the employee was caused by a bin of, or of about, the dimensions pleaded in the statement of claim and that it had a metal lid divided into two parts. The plaintiff seeks to have the defendant produce for inspection a metal lidded bin of the approximate dimensions pleaded in the statement of claim, and also any bins which the defendant contends it had supplied to the plaintiff for use at the hospital as at the material date. The plaintiff proposes to instruct its expert witness, Dr Steven Chew, to examine and carry out appropriate testing of the bins produced for inspection.

23 It is apparent from the evidence that representatives of the solicitors for the plaintiff and an expert witness engaged by them, Dr Chew, have already inspected, at the premises of a third party, a metal lidded bin of similar dimensions to those pleaded by the plaintiff, that bin having been specifically identified by the injured employee as being of the same or similar dimensions to the one involved in the accident.

24 On the hearing of this application, counsel for the defendant submitted in relation to the original application that it was far too wide and left unclear precisely what it was that the plaintiff sought to inspect. In relation to the amended application, it was submitted that the inspection sought was unnecessary. It was evident from the amendments to the statement of claim, and from the discrepancy between the bin which was pleaded in the employee's claim and the one pleaded in this claim, that the plaintiff does not know the size and type of bin which was involved in the alleged accident. At best, the plaintiff would be entitled only to the production and inspection of a bin of the type and dimensions pleaded in par 8 of the statement of claim. But as the plaintiff's expert witness, Dr Chew, had, according to the affidavit evidence of the plaintiff, already inspected and tested at the premises of a third party a bin of similar dimensions to those pleaded, there was no demonstrated need to require the defendant to produce any bin for inspection. It was not disputed by the defendant that the bin that had been inspected and tested was owned by the defendant.

25 I should mention that the defendant did not accept that a bin of the type inspected by Dr Chew was involved in the accident or was ever at the plaintiff's premises, and it has given notice to the plaintiff that it will object to the admissibility of Dr Chew's report on that basis.

26 I do not think it is an answer to the application, however, to say that the plaintiff's representatives have had the opportunity previously to inspect at the premises of a third party a bin owned by the defendant, of similar specification to that pleaded in the statement of claim. In that respect it is significant that the bin inspected by Dr Chew, although of some 3 cubic metre capacity, was not of exactly the same dimensions as is pleaded in the statement of claim.

27 I also do not think it is a sufficient answer to say the actual bin, or the specific dimensions of the actual bin, cannot now be ascertained by the defendant. It is not suggested that the actual bin had particular or idiosyncratic attributes. On the basis of the statement of claim, the bin in issue in the action is simply a bin supplied by the defendant under the contract, of the dimensions and type pleaded.

28 Accordingly, in my view, if the defendant has in its power, custody or control the bin that was involved in the action, that bin should be produced for inspection. If the defendant does not have, or cannot identify, the particular bin, I consider it is in the interests of justice that it produce any bin in its power, custody or control which fits the description pleaded in par 8 of the statement of claim so that the plaintiff (including its advisers and necessary witnesses) has access to it for the purposes of inspecting it and, subject to such further orders as may be appropriate, conducting any reasonable testing. The question of testing raises separate issues which it is unnecessary to deal with at this stage.

29 I would not, however, for the moment accede to the application for production of any bin referred to in par 8 of the defence. As matters stand at present, I consider that that part of the application is unnecessarily wide. It may be, for instance, that a number of different bins were provided by the defendant under the contract, some of which plainly could have had nothing to do with the accident. The defendant could then be put to unreasonable inconvenience and unnecessary expense in complying with such an order.

30 If that part of the application is to be pursued, the next step, it seems to me, is for the plaintiff, if not from the terms of the amended defence then by a request for further particulars or otherwise, to seek to obtain from the defendant the information which would enable the plaintiff to specify with a greater degree of precision the bin or bins it seeks to inspect. Once appropriate endeavours have been made, the application can then be renewed if, after the inspection of any bin of the specification pleaded in par 8 of the statement of claim which is produced for inspection by the defendant, that still appears necessary. I would adjourn the second part of the application in the meantime.

31 I will hear the parties on the appropriate form of orders and on costs.

The Minister for Health v Brambles Australia Limited [2006] WASC 86

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Judgment (42 paragraphs)

The Minister for Health v Brambles Australia Limited [2006] WASC 86 (19 May 2006)

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Cases Cited (1)