Chin v J R Wyllie & Sons Pty Ltd [1990] QSC 322

' 1 · l~ v:;i IN THE SUPREME COURT OF QUEENSLAND No. 4697 of 1987 BETWEEN: .. BARRY MICHAEL CHIN Plaintiff J.R. WYLLIE & SONS PTY. LTD. Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the Sixth day of September, 1990 This is an application by a plaintiff for further and better particulars of the defence which includes a paragraph no. 2 11 save as aforesaid, the defendant does not admit the facts alleged in paragraphs 1, 9, 10, 15 and 16 of the statement of claim" and paragraph 3 "save as aforesaid, the defendant denies each and every allegation of fact set out in the statement of claim as if the same was specifically set out herein and traversed and in particular, denies (a) that it was negligent whether it is alleged or at all (presumably the defendant considers that assertion an assertion of fact as distinct as an assertion of law) (b) that it breached the factories and shop rules whether it is alleged or at all ( c) that the plaintiff's low back pain referred to in paragraph 20 is related to his alleged, injury and (d) that the plaintiff has suffered any impairment of his earning capacity." In order to understand the general context of that pleading, one must have regard to paragraph 17 of the statement of claim which alleges "The injuries suffered by the plaintiff and consequent loss -- 1 of 5 -- and damage were caused by a breach by the defendant, its servants or agents, of the aforesaid duties and terms particulars of which are as follows:- (a) Failing to provide any or any sufficient ventilation of the defendant's workshop premises in order to extract and eradicate fumes produced in the operation of the MIG welder and the plasma arch machine; (b) Failing to require the plaintiff to utilise a respirator in the course of carrying out his welding work; ( c) Failing to warn the plaintiff of the danger of carrying out the welding work by reason of the generation of fumes; (d) Requiring the plaintiff to carry out work in confined spaces whilst welding ductwork without ensuring proper ventilation and respiration; (e) Failing to rotate the plaintiff with other employees in the conduct of his work so as to reduce his exposure to the fumes generated." Paragraph 17 in the statement of claim is not specifically pleaded to by the defendants and hence, is caught by the general denial contained in paragraph 3 of the defence. As I have remarked earlier the defendant denies all allegations of fact and then specifically includes as an allegation of fact by 3(a) the allegation that it was negligent whether as alleged or at all. It seems to me clear, that by paragraph 3 it is open at trial to the defendant presently to assert that with respect to paragraph 17 (a) that it did provide some ventilation; (b) that it did require the plaintiff to utilize a respirator in the course of carrying out his welding work; (c) that it did warn the plaintiff of the danger of carrying out the welding work by reason of the generation of fumes; -- 2 of 5 -- .. .,, ' l (d) that it did require the plaintiff to carry out work in confined spaces whilst welding ductwork but ensured proper ventilation and respiration; and (d) that it did rotate the plaintiff with other employees in the conduct of his work so as to reduce the exposure to the fumes generated. Equally it seems to me on the present pleading open for the defendant at trial to assert that while it did not provide ventilation of its workshop premises in order to extract and eradicate fumes produced in the operation of the MIG welder and the plasma arch machine, this was not in breach of the standards which are prudent employer armed with current scientific knowledge would have adopted and taking reasonable and proper care for the health and welfare of its employees would have adopted. Likewise with respect to paragraph b, c, d, and e it seems to me open to the defendant at trial to make similar assertions. Accordingly it seems to me that the pleading with respect to paragraph 3(a) is one which clearly falls within the category of a negative pregnant or at worst for the plaintiff leaves the question in doubt as to the true nature of the pleading. I must say that the attitude of the defendant causes me some surprise. Clearly the defence is being conducted on behalf of the Workers' Compensation Board and one would have thought the Board would have been interested in limiting the issues at trial thereby substantially reducing the costs. Mr. Newton who appears for the defendant asserts that to require the particulars sought would indeed to require the defendant before the pleading has closed to call for and obtain professional opinion. In my view such an assertion is not correct in so far as what the particulars do, is to require the defendant to -- 3 of 5 -- specifically state whether or not it denies the set of facts in paragraph 17 of the statement of claim or denies the conclusion (whether they be conclusions of fact or law) which the plaintiff seeks to draw from the state of affairs which it alleges in paragraph 17 of his pleading. Mr. Newton draws my attention to the fact that this application occurs relatively late in the action. This is a relevant consideration I acknowledge but it is not a critical one in my view in this case as to require delivery of further and better particulars as requested will operate in the interests of both parties to this litigation. I am not persuaded in any event that the fact that the defendant has offered inspection of the subject premises whether it be conditionally or unconditionally has any relevance to the application before me as it seems clear to me this inspection could do no more than appraise the plaintiff as to what conclusions it might draw from its observations made on inspection whereas the object of this application is to specify and limit the nature of the defendant's case. Accordingly the facts of the matter seem to me on all fours with the decision of Johnston v. Sule reported in 1962 Q.W.N. 36 and in particular I note Mr. Newton declined to say when asked by myself as to whether or not his client intends to assert the existence of contrary facts to those pleaded in paragraph 17. In particular, I refer to the words of Mr. Justice Stable at p.83 of the Reports:- "If the defendant intends to rely upon other alleged means of egress available to the plaintiff then the plaintiff should know about them so he can prepare his case as to their availability to him and such matters as he may be advised. If the defendant does not intend to rely upon any such thing then he can say so quite simply shortly as, indeed, I would have expected him to do when given the opportunity before me." -- 4 of 5 -- ~ Accordingly, I order that the defendant on or before 4 p.m. on the 27th September, 1990 to give further and better particulars of its defence in terms of the request delivered the 6th June, 1990. I further order that the defendant pay the plaintiff's costs of and incidental to the application to be taxed. -- 5 of 5 --