Kwiatkowski v Plum Pictures Limited & Anor. [2023] NSWSC 165

Kwiatkowski v Plum Pictures Limited & Anor. [2023] NSWSC 165

The amended statement of claim disclosed a reasonably arguable cause of action against the second defendant because it pleaded that the second defendant assumed control and supervision of the plaintiff or assumed care, control and coordination of the operations, giving rise to an employer-like or analogous duty of care. The alleged estoppel based on workers compensation payments was not established on the evidence and, in any event, was not a basis for summary relief. The identified pleading uncertainties did not justify dismissal or strike out, although particulars were required for references to "servants and/or agents".

Jurisdiction
Australia
Judgment Date
28 February 2023
Procedural Posture
Civil Procedure; Personal Injury Damages Claim Arising From Alleged Workplace/film Set Accident / Second Defendant's Notice of Motion for Summary Dismissal or Strike Out of the Amended Statement of Claim
Outcome
The second defendant's Notice of Motion filed 9 September 2022 was dismissed; particulars and further procedural directions were ordered; costs of the motion were ordered to be costs in the cause.
Legal Topics
['summary Disposal' 'strike Out of Pleadings' 'reasonable Cause of Action' 'duty of Care' 'employer Pro Hac Vice' 'particulars of Pleadings']
['civil Procedure' 'negligence' 'workplace Injury'] ['summary Disposal' 'strike Out of Pleadings' 'reasonable Cause of Action' 'duty of Care' 'employer Pro Hac Vice' 'particulars of Pleadings']

Case Brief

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Procedural Posture

Civil Procedure; Personal Injury Damages Claim Arising From Alleged Workplace/film Set Accident / Second Defendant's Notice of Motion for Summary Dismissal or Strike Out of the Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the amended statement of claim disclosed a reasonable cause of action against the second defendant.' "Whether the plaintiff's pleading of duty of care against the second defendant was unclear, embarrassing or liable to be struck out." 'Whether an alleged workers compensation or principal-contractor estoppel justified summary dismissal.' 'Whether defects concerning references to "servants and/or agents" warranted strike out or should be addressed by particulars.']

Ratio Decidendi

The amended statement of claim disclosed a reasonably arguable cause of action against the second defendant because it pleaded that the second defendant assumed control and supervision of the plaintiff or assumed care, control and coordination of the operations, giving rise to an employer-like or analogous duty of care. The alleged estoppel based on workers compensation payments was not established on the evidence and, in any event, was not a basis for summary relief. The identified pleading uncertainties did not justify dismissal or strike out, although particulars were required for references to "servants and/or agents".

Court Disposition

The second defendant's Notice of Motion filed 9 September 2022 was dismissed; particulars and further procedural directions were ordered; costs of the motion were ordered to be costs in the cause.

Orders

  • ["Dismiss the second defendant's Notice of Motion filed 9 September 2022." "Order that the plaintiff provide particulars to the defendants identifying with precision, in connection with each and every reference to the phrase 'servants and/or agents' where it appears in the amended statement of claim filed 20 April...