Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431

Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431

The motion failed because the plaintiff pleaded only one specific cause of the elevator failing to level with the basement floor, namely a stranded rope shutdown. The first defendant was entitled to deny that pleaded cause and put the plaintiff to proof, particularly in light of the contemporaneous work ticket and expert report indicating that the pleaded cause did not occur and could not have occurred. Since an unknown or undiscoverable mechanical defect was not the first defendant's case, r 14.14 of the Uniform Civil Procedure Rules 2005 did not require it to plead such an alternative cause, and the defence was not shown to be prejudicial, embarrassing or delaying under r 14.28.

Jurisdiction
Australia
Judgment Date
02 May 2013
Procedural Posture
Common Law Proceeding Concerning a Personal Injury Negligence Claim and a Procedural Motion to Strike Out Parts of a Defence / Plaintiff's Notice of Motion Filed on 19 March 2013 Seeking to Strike Out Paragraphs 5 and 6 of the First Defendant's Defence
Outcome
The plaintiff's Notice of Motion was dismissed and any question of costs of the motion was reserved.
Legal Topics
['motion to Strike Out Parts of a Defence' 'pleadings' 'non Admission and Denial in a Defence' 'particulars' 'uniform Civil Procedure Rules 2005 Rr 14.14 and 14.28' 'elevator Maintenance Accident']
['civil Procedure' 'personal Injury' 'negligence'] ['motion to Strike Out Parts of a Defence' 'pleadings' 'non Admission and Denial in a Defence' 'particulars' 'uniform Civil Procedure Rules 2005 Rr 14.14 and 14.28' 'elevator Maintenance Accident']

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Procedural Posture

Common Law Proceeding Concerning a Personal Injury Negligence Claim and a Procedural Motion to Strike Out Parts of a Defence / Plaintiff's Notice of Motion Filed on 19 March 2013 Seeking to Strike Out Paragraphs 5 and 6 of the First Defendant's Defence

Legal Issues

  1. 1 ["Whether paragraphs 5 and 6 of the first defendant's defence should be struck out because they denied the pleaded cause of the accident and negligence without pleading facts or other matters supporting the denials." 'Whether r 14.14 of the Uniform Civil Procedure Rules 2005 required the first defendant to plead that the accident was caused by an unknown and undiscoverable mechanical defect.' 'Whether the defence had a tendency to cause prejudice or embarrassment or delay the proceedings within r 14.28 of the Uniform Civil Procedure Rules 2005.']

Ratio Decidendi

The motion failed because the plaintiff pleaded only one specific cause of the elevator failing to level with the basement floor, namely a stranded rope shutdown. The first defendant was entitled to deny that pleaded cause and put the plaintiff to proof, particularly in light of the contemporaneous work ticket and expert report indicating that the pleaded cause did not occur and could not have occurred. Since an unknown or undiscoverable mechanical defect was not the first defendant's case, r 14.14 of the Uniform Civil Procedure Rules 2005 did not require it to plead such an alternative cause, and the defence was not shown to be prejudicial, embarrassing or delaying under r 14.28.

Court Disposition

The plaintiff's Notice of Motion was dismissed and any question of costs of the motion was reserved.

Orders

  • ['Order that the Notice of Motion filed by the plaintiff on 19 March 2013 be dismissed.' 'Reserve any question of costs of the motion.']