Zhang v Popovic [2015] NSWSC 1593 | Case summary

Zhang v Popovic [2015] NSWSC 1593 | Case summary | Zoe

Judgment Introduction

This dispute centres upon whether the plaintiff should be permitted to amend his originating process many months before the hearing of the matter on 21 March 2016. It came before me in the Duty List last week.
The plaintiff moves upon a notice of motion filed on 9 October 2015. The orders notified and pressed before me were as follows: 1. That the Plaintiff have leave to further amend the statement of claim in accordance with the proposed Sixth Amended Statement of Claim. 2. Such further or other order as the case may require. 3. Costs.
The proposed amendments affect only the seventh defendant, and it was only that party that wished to be heard against the motion. Background
A thumbnail sketch of the background to the matter is as follows.
On 16 September 2007, the plaintiff suffered catastrophic injuries when a loading ramp at the rear of a semi-trailer fell on him. That fall is said to have occurred as a result of part of a hydraulic lifting cylinder "giving way".
The plaintiff commenced proceedings against a number of defendants, including the driver of the semi-trailer and the employer of the driver.
The seventh defendant, a company that allegedly installed or modified (or both) the hydraulic cylinder in July 2007, was first joined as a party to the proceedings by the plaintiff by way of a fourth amended statement of claim filed 8 February 2013.
As I have said, the substantive matter is listed for hearing for five days commencing 21 March 2016.
The case against the seventh defendant as currently pleaded (and set out in paragraphs 51A to 51D of the fifth amended statement of claim filed 19 May 2015) is as follows. Some time prior to the accident, the seventh defendant was retained to install the hydraulic lifting system. In undertaking that installation, the seventh defendant welded the hydraulic cylinder to a bracket. However, that welding of the bracket was deficient, thereby causing the ramp to collapse onto the plaintiff.
The seventh defendant has served evidence from at least two lay witnesses, along with expert evidence in support of the proposition that it did not weld the bracket as alleged.
The plaintiff now seeks leave to amend his statement of claim in the form of a sixth amended statement of claim. The additional allegations sought to be raised in the amended statement of claim relate to the claim against the seventh defendant only. In essence, they plead in the alternative that, even if it be the case that the seventh defendant did not install or weld the bracket, it was nevertheless in breach of its duty of care to the plaintiff, in failing to attend to the matters referred to in the particulars of negligence.
It is convenient now to turn to the submissions of the parties, and to do so in unorthodox order for ease of comprehension. Submissions on behalf of the seventh defendant
Senior counsel for the seventh defendant opposed the amendments on the following bases.
First, although any submission that the solicitors for the plaintiff had been lacking in diligence was expressly disavowed, still and all this will be the sixth time the plaintiff has sought to amend its statement of claim.
Secondly, the seventh defendant has prepared and served its evidence as necessary to meet the allegations originally raised against it. In those circumstances, the plaintiff should not be permitted to rely on evidence already adduced by his opponent to formulate an alternative case against the seventh defendant. That would result in substantial prejudice to the seventh defendant, and that prejudice is a factor that tells against the application.
Thirdly, if it be the case that what is being mounted is a new cause of action, the plaintiff is arguably statute-barred from pleading it. That is because the application to amend falls outside the three year post-discoverability limitation period. The only exception to the operation of that rule would be if the matter falls within s 65(2)(c) of the Civil Procedure Act 2005 (NSW), which permits a party to add or substitute a new cause of action if the new cause of action arises from the same or substantially the same facts as those giving rise to the existing cause of action.
To that end, it was said that the amendment sought by the plaintiff is not based on the same or substantially the same facts. That is because the proposed sixth amendment to the statement of claim is based on the essential fact that the seventh defendant did not weld the bracket (but, rather, relied upon a pre-existing bracket), even though the essential fact on which the cause of action against the seventh defendant is founded has always been that it did indeed weld the bracket. As such, the plaintiff cannot rely on s 65(2)(c), and the proposed amendment is in truth purporting to plead a new cause of action that is statute barred. Submissions of the plaintiff
In support of the orders sought in the motion, counsel for the plaintiff made the following submissions.
First, the evidence adduced by the seventh defendant in a report of Dr Robert Casey, and orally before her Honour Wilson J on 29 April 2015, contained alternative explanations for the failure of the hydraulic system. These alternative explanations have called into question the proposition that the seventh defendant installed the lugs that were to hold things in place. The statement of claim therefore requires amendment to reflect, as an alternative, that development. And it cannot be the case that, if there needs to be appropriate refinement of particulars of a cause of action, the plaintiff is to be prohibited from engaging in that refinement.
Secondly, the seventh defendant would not be unduly prejudiced by the proposed amendment, since the hearing is over four months away.
Thirdly, the proposed amendment does not advance a different cause of action, but rather a factual variation of the existing particularisation of negligence; namely, a faulty welding of the lugs or faulty engineering and configuration of the hydraulic system, or both. Determination
I mean no disrespect to the helpful submissions of senior counsel for the seventh defendant by setting out my views concisely. I consider that the amendment should be allowed. That is so for the following reasons.
First, to my mind, there is no question of the plaintiff pleading a new or different cause of action. Since the commencement of the proceedings against the seventh defendant, the cause of action has been negligence. And the cause of action proposed to be pleaded in the latest version of the statement of claim remains negligence. Whether the particulars change from being the doing of a particular act to another act, or from the doing of a particular act to an omission to do that act or another act, is a question of particulars and facts, not legal principle.
It follows that I do not need to pause to consider s 65 of the Civil Procedure Act, because the essential precondition of that section is the pleading of a new cause of action. Nor do I consider that I need to embark upon an analysis of the Limitation Act 1969 (NSW), for the same reason.
Secondly, I do not consider that what is proposed is a substantial change in the case of the plaintiff. Indeed, the plaintiff has always been personally ignorant of all of the background circumstances to do with the design, manufacture, installation, operation, and maintenance of the items that led to his injuries in 2007. Rather, what is proposed to occur is the refinement of the allegation against the seventh defendant based upon evidence that is now available to the plaintiff by way of pre-trial procedures.
Thirdly, there is force in the proposition of the seventh defendant that it will be forensically disadvantaged, if it be the case that compulsory pre-trial disclosure leads to refinement of the pleadings of the plaintiff in the matter in a way that is adverse to its interests. But that is an inevitable consequence of a regime of civil litigation that calls upon parties to serve proposed evidence upon their opponents well before the hearing. I reject the proposition implicit in the submissions of the seventh defendant that the plaintiff must adhere to his original pleaded version of the facts without supplementation; and, if a variation on those facts is established at the hearing then the whole proceedings must fail as against the seventh defendant.
Fourthly, in light of the fact that the hearing date is many months away, and the proposed alteration to the claim is itself founded on evidence put on by the seventh defendant, there can be no practical prejudice occasioned to seventh defendant in permitting the alteration to be made.
In short, I do not accept the proposition that, in circumstances such as these, the plaintiff should be prohibited from making the changes that are sought by way of the proposed further iteration of the claim. To the contrary, I consider that the amendment is soundly consonant with the overarching principles of the Civil Procedure Act. Costs
Turning to costs, the plaintiff found success on the motion. The general rule of costs following the event argues in favour of his costs being paid by the seventh defendant. To be weighed against that is the fact that the plaintiff sought an indulgence in the form of yet another iteration of his pleadings. A further countervailing factor, however, is that the matter was hard fought and demanded a deal of time and preparation. And I repeat that all the plaintiff sought to do was to amend his pleadings so that a possible version of events propounded by the seventh defendant would also fall within the claim of negligence by the plaintiff.
Weighing up those countervailing factors, and exercising my discretion with regard to costs, I consider that the costs of the proceedings before me should be the plaintiff's costs in the cause.
Finally, the matter should return to the Registrar promptly, and I shall make an order to that effect. Orders
I make the following orders: 1. The plaintiff has leave to amend the statement of claim in accordance with the proposed sixth amended statement of claim. 2. The costs of the proceedings before me are the plaintiff's costs in the cause against the seventh defendant. 3. The matter is listed before the Common Law Registrar for directions at 9 AM on 5 November 2015.

Zhang v Popovic

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Parties

Legislation Cited (2)

Cited By (1)