Catlin v QX Australia P/L & Ors [2006] QSC 417

1 [2006] QSC 417 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ROBIN A/J No 1560 of 2006 RICHARD HENRY CATLIN Plaintiff and QX AUSTRALIA PTY LTD (ACN 074 725 956) and ORGANISERS INTERNATIONAL PTY LTD (ACN 010 793 585) and PIEROTH PTY LTD (ACN 000 978 352) First Defendant Second Defendant Third Defendant BRISBANE ..DATE 10/11/2006 ORDER CATCHWORDS: Uniform Civil Procedure Rules r 157 - where plaintiff tripped on a carpet tile protruding above the adjacent tile - defendant had the general management of a Home Show at Brisbane Exhibition Ground - issue whether it took reasonable precautions - plaintiff ordered to give particulars of what precautions he alleged should have been taken, to guard against "surprise" at trial. -- 1 of 7 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is the second defendant's application for further and better particulars of the statement of claim. It was the organiser of a "Home Show" held at the Exhibition Grounds in Brisbane. It engaged the first defendant to lay a floor of carpet tiles in one of the display areas where the plaintiff in the course of his employment with the third defendant suffered injury when he fell. His case is that the fall happened because one carpet tile "protruded" over its neighbour. The explanation for that protrusion, as I understand things, is that the size of the tile was greater than the size of the space it was to go in. The obvious solution to the difficulty would appear to be to have the tile trimmed so that it would fit. However, the debate so far has referred to other things that might have been done such as gluing or stapling at appropriate intervals. It is not clear that inadequacy of the space was the only factor in the protrusion. The first paragraph of which further and better particulars are sought is: "12. Further during the Brisbane Home Show there existed a relationship of proximity between the plaintiff and each of the first, second and third defendants whereby each defendant owed to the plaintiff the duties imposed or implied by law that each defendant would: (a) Take all reasonable precautions for the safety of the plaintiff whilst the plaintiff was working on or working at store number 31." The request for particulars asked "what reasonable precautions the plaintiff alleges the second defendant had a duty to take for the safety of the plaintiff" and elicited this response: "In relation to paragraph 12(a) of the statement of claim the reasonable precautions of the second defendant had a -- 2 of 7 -- 3 ORDER 1 10 20 30 40 50 60 duty to take for the safety of the plaintiff whilst the plaintiff was on or working at store number 31 were any precautions which would have prevented the section of carpet tile from protruding above its adjoining carpet tile or which would have reasonably brought to the plaintiff's attention the presence of the protruding section of carpet tile." Mr Forde, for the second defendant/applicant draws attention to the expression "any precautions" which he says is totally uninformative. He says his client has no complete idea of the respects in which it might be said at a trial that it failed in its obligations to the plaintiff. From bitter experience Mr Forde is able to justify the concern which he raises. He sets out in his outline of argument what Dutney J said in Henderson v. Dalrymple Bay Coal Terminal [2005] QSC 124 at paragraph 17: "There was a debate about whether the Plaintiff's case as pleaded permitted the Plaintiff to argue that the Defendant was negligent in causing the rocks to be in the area they were in. The Plaintiff, in his particulars pleaded that the Defendant was negligent in failing to provide a safe system of work. Other more particular grounds for alleging negligence were also pleaded. The Defendant argued that the general particular of failing to provide a safe system of work should be construed by reference to the more specific particulars which followed. These did not include anything to do with allowing the rocks in the area in the first place. In my view, the Plaintiff is allowed to rely on the general particulars. Even though it fails to provide any details of the respects in which the system of work was unsafe, no clarification was ever requested by the Defendant; nor did the Defendant ever attempt to strike out the particular on the grounds that it was in any way embarrassing. In those circumstances, the conclusion is that the Defendant was content to allow the Plaintiff to conduct his case in reliance on a general "catch-all" particular, without comment, until after the commencement of the trial. It is, in my view, too late for the Defendant to now complain of lack of particularity." ... -- 3 of 7 -- 4 HIS HONOUR: The defendant's appeal in Henderson failed; see [2005] QCA335 at paragraph 32 where it was said to have been open to the Trial Judge to base a finding of negligence on the general particular relied on in the absence of any attempt by the appellant to narrow it. The Rule invoked by Mr Forde is Rule 157 which requires a pleading to include the particulars necessary to define the issues for and prevent surprise at a trial. The Rule goes on to say that particulars should be such as to "enable the opposite party to plead". The second defendant has not been in any difficulty in pleading. It had the obligation to plead if the time for doing so expired before any particulars it desired were available. The second defendant pleads that it did take proper precautions. It would follow that it would be obliged if called on to indicate the precautions which it did implement. It may, indeed, have done that. I accept that it has been a practice over the decades of allegations of negligence and the like in fairly general terms proceeding to trial. Where, for good reason, and Henderson demonstrates the good reason here, a defendant is apprehensive that it may be surprised, then, in my opinion, it is entitled to informative particulars. On analysis expressions such as "taking appropriate precautions" are meaningless, as is a hallowed expression such as "driving without due care and attention". -- 4 of 7 -- 5 ORDER 1 10 20 30 40 50 60 It is possible, and where a defendant so requires it should be done, to identify specific things which were done or were not done but should have been done in the physical world. I think the defendant here is entitled to require that. See Halsbury's Laws of England (4th) 34:54 r 3; 36:13 r 2. The meaning of the particular given, I think, is that the second defendant was required not only to take any single precaution, but to take all reasonable precautions which might be pointed to - so that the defendant would remain in jeopardy if it had taken only one or some of the available precautionary measures, but without an effective outcome. So, further and better particulars will be ordered of paragraph 12(a) of the Statement of Claim. ... HIS HONOUR: Henderson has made you afraid. MR FORDE: Very afraid. HIS HONOUR: That they will forget about paragraph 2(b), 3, 4, 5, 6, 7 and 10 and rely on the general----- MR FORDE: The general allegation. HIS HONOUR: I am prepared to order particulars of that one (paragraph 17(b)(iv) of the Statement of Claim) if the plaintiff intends to rely on anything not set out in those enumerated paragraphs. ... -- 5 of 7 -- 6 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I am grateful to the plaintiff's counsel for shortening things after my ruling on the first contentious request for particulars. The Court will order further and better particulars in accordance with the following paragraphs of the second defendant's request: • 1, 4, 5, 6, 7, 8(a)(i), 8(b)(ii), 8(b)(vi), limited to further particulars of anything the plaintiff intends to rely on not set out in paragraph 2(b), 3, 4, 5, 6, 7 or 10 of the Statement of Claim. • Paragraph 8(b)(x), paragraph 8(b)(xi) and paragraph 8(b)(xv), limited to further particulars of the time or times preceding the incident referred to in paragraph 14 of the Statement of Claim when it is alleged the defendant should have taken steps to inform itself. ... HIS HONOUR: I think that the plaintiff ought be ordered to pay the costs. ... HIS HONOUR: I will order that the costs be the second defendant's costs against the plaintiff in any event. -- 6 of 7 -- 7 ORDER 1 10 20 30 40 50 60 ... MR DE PLATER: Sorry, your Honour. Something just occurred after your Honour left, but your Honour didn't order a time in which the particulars were to be provided. HIS HONOUR: Well----- MR DE PLATER: Fourteen days. MR FORDE: Fourteen days. HIS HONOUR: When is the mediation? MR FORDE: We were just trying to find that out. I'm not sure. It certainly would be helpful to have it before the mediation. MR DE PLATER: Well it'd be helpful to have it after the mediation. HIS HONOUR: I could see that. Well, I will say 14 days anyway, and we will just take our chances. MR FORDE: Thank you, your honour. ----- -- 7 of 7 --