Sheather v Carricks Plumbing & Gasfitting Pty Ltd [2022] NSWSC 1198

Sheather v Carricks Plumbing & Gasfitting Pty Ltd [2022] NSWSC 1198

The statement of claim was defective to the extent that it did not plead the duty of care, risk of harm and precautions with sufficient specificity, but it was not so embarrassing as to justify striking it out in its entirety. The defence was also unsatisfactory insofar as it asserted embarrassment and denied or did not admit facts apparently corresponding with agreed facts from the related prosecution, but the guilty plea and related affidavit did not amount to a complete admission of negligence. The appropriate course was to require an amended statement of claim, an amended defence, and explanatory affidavits from the defendant, with both strike-out motions otherwise dismissed.

Jurisdiction
Australia
Judgment Date
06 September 2022
Procedural Posture
Common Law Proceedings Seeking Damages in Negligence for Personal Injury / Procedural Rulings on the Plaintiff's Notice of Motion to Strike Out Parts of the Defence and the Defendant's Notice of Motion to Strike Out the Statement of Claim
Outcome
Both notices of motion were otherwise dismissed; the plaintiff was ordered to file and serve an amended statement of claim, the defendant was ordered to file and serve an amended defence and explanatory affidavits, and costs of the motions were ordered to be costs in the cause.
Legal Topics
['strike Out Applications' 'amended Statement of Claim' 'amended Defence' 'duty of Care' 'risk of Harm' 'precautions' 'admissions in Related Prosecution' 'contributory Negligence' 'workers Compensation Reduction Claim']
['civil Procedure' 'pleadings' 'negligence' 'personal Injury' 'work Health and Safety'] ['strike Out Applications' 'amended Statement of Claim' 'amended Defence' 'duty of Care' 'risk of Harm' 'precautions' 'admissions in Related Prosecution' 'contributory Negligence' 'workers Compensation Reduction Claim']

Case Brief

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Procedural Posture

Common Law Proceedings Seeking Damages in Negligence for Personal Injury / Procedural Rulings on the Plaintiff's Notice of Motion to Strike Out Parts of the Defence and the Defendant's Notice of Motion to Strike Out the Statement of Claim

Legal Issues

  1. 1 ['Whether parts of the defence should be struck out because they denied or did not admit matters said to correspond with an agreed statement of facts in related District Court proceedings.' 'Whether the statement of claim should be struck out because it did not properly plead the elements of negligence, including duty of care, risk of harm and precautions.' "Whether the defendant's guilty plea to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) and related admissions required the defendant's denial of negligence to be struck out." 'What procedural orders were appropriate to identify the real issues in dispute consistently with s 56 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

The statement of claim was defective to the extent that it did not plead the duty of care, risk of harm and precautions with sufficient specificity, but it was not so embarrassing as to justify striking it out in its entirety. The defence was also unsatisfactory insofar as it asserted embarrassment and denied or did not admit facts apparently corresponding with agreed facts from the related prosecution, but the guilty plea and related affidavit did not amount to a complete admission of negligence. The appropriate course was to require an amended statement of claim, an amended defence, and explanatory affidavits from the defendant, with both strike-out motions otherwise dismissed.

Court Disposition

Both notices of motion were otherwise dismissed; the plaintiff was ordered to file and serve an amended statement of claim, the defendant was ordered to file and serve an amended defence and explanatory affidavits, and costs of the motions were ordered to be costs in the cause.

Orders

  • ["On or before 5pm on 20 September 2022 the plaintiff file and serve an Amended Statement of Claim pleading a duty of care, a risk of harm and the precautions that should have been taken against the risk in the terms stated in the email from the plaintiff's solicitor to the Court and the defendant sent at 6.34pm on...