Employer's Strike-Out Application Rejected in OH&S Case

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [COMPANY] (No 4) [2011] FCA 253 Citation: [APPELLANT] v [COMPANY] (No 4) [2011] FCA 253

Parties: [APPELLANT] v [COMPANY] (ABN [PHONE]) and [COMPANY] (ABN 11 [PHONE])

File number: VID 660 of 2008

Judge: BROMBERG J

Date of judgment: 17 March 2011

Catchwords: PRACTICE AND PROCEDURE - Pleadings - application to strike out statement of claim – applicable principles

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Occupational Health & Safety Act 1991 (Cth) ss 9A, 16

Cases cited: [NAME] v [NAME] [2009] FCA 972 [NAME] v [NAME] [1999] FCA 1750 [NAME] v Industrial Relations Court of New South Wales (2010) 239 CLR 531 State of [NAME] v [NAME] ([COMPANY] [1999] FCA 499

Date of hearing: 16 March 2011

Place: [APPELLANT]: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 36

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the Respondents: [redacted]

Solicitor for the Respondents: [redacted]

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 660 of 2008

BETWEEN: [APPELLANT]

Applicant

AND: [APPELLANT] [COMPANY] (ABN [PHONE])

[APPELLANT]

[COMPANY] (ABN 11 [PHONE])

[APPELLANT] OF ORDER: 17 MARCH 2011 [APPELLANT]

THE COURT ORDERS THAT:

1. Paragraphs 27.3, 27.4, 29, 30.3, 30.4 and 32 of the Further Amended Statement of Claim be struck out.

2. Costs of and incidental to the [APPELLANT]'s notice of motion of 14 October 2010 be reserved.

3. The notice of motion be otherwise dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 660 of 2008

[APPELLANT]

Applicant

AND: [APPELLANT] [COMPANY] (ABN [PHONE])

[APPELLANT]

[COMPANY] (ABN 11 [PHONE])

[APPELLANT]

JUDGE: BROMBERG J DATE: 17 MARCH 2011 PLACE: [APPELLANT] FOR

JUDGMENT 1 At the commencement of the trial of this proceeding, I took submissions on an application by the respondents to strike out the Further Amended Statement of Claim. In order that the trial may resume without further delay, it is necessary that I deliver my judgment with these short reasons and that I deliver fuller reasons at a later time. 2 The power of the Court to strike out a pleading or portions of a pleading is well established. It is a discretionary power which should be employed sparingly and only in a clear case: [NAME] v [NAME] [1999] FCA 1750 at [10]. When the pleading discloses a case which the Court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation. 3 The Rules require a Statement of Claim to state the material facts. However as many authorities demonstrate, the adequacy of pleadings are often dealt with in a more flexible way than would be required by a strict application of the Rules. That reflects the discretionary nature of the Court's power to control pleadings and the requirement that the Rules be interpreted and applied in accordance with the overarching purposes identified in s 37M of the Federal Court of Australia Act 1976 (Cth). In that respect, the Court ought take into account defects of substance not form: State of [NAME] v [NAME] ([COMPANY] [1999] FCA 499 at [19]. It ought not expect a pleading to be formulated as an elegant model of legal purity: [NAME] v [NAME] at [10]. [ADDRESS] ought not take a pedantic approach to a pleading: [NAME] v [NAME] [2009] FCA 972 at [14]. It ought not take a strict view as to the dichotomy between material facts and particulars. [ADDRESS] will read the pleading as a whole and will be fundamentally guided by the basic principle that a pleading must be sufficient to put the other party on notice of the case that it is required to meet: [NAME] v [NAME] at [14]. 4 By notice of motion of 14 October 2010, the respondents (collectively [NAME]) seek orders that:

1. Paragraphs 17, 21, 27, 28, 29, 30, 31, and 32 of the Further Amended Statement of Claim dated 9 July 2010 be struck out.

2. Alternatively, the proceeding be stayed or dismissed generally.

3. The applicant pay the [APPELLANT]'s costs of the proceeding.

4. Such further orders as the Court deems fit. 5 The notice of motion was accompanied by an affidavit including a comprehensive outline of submissions setting out the grounds of challenge. 6 On 20 October 2010, I took submissions as to whether or not the notice of motion should be dealt with at or about that time or be adjourned to the trial. I determined that it should be adjourned to the trial. At that time, the grounds agitated by the affidavit were significantly narrower than the grounds now agitated. No objection was taken by [APPELLANT] to the raising of additional grounds and I have determined each of the grounds raised. 7 Thankfully, some of the grounds that were previously pressed are no longer pressed. In particular, I need not deal with a challenge to the Court's jurisdiction based on the content of declarations of contravention which had been sought by [APPELLANT]'s Further Amended Application but which are no longer pressed, and which are to be the subject of amendment by leave already given. 8 [NAME] in paragraph 1 of the notice of motion has identified particular paragraphs that it says should be struck out, in large part, it has not addressed its arguments to particular paragraphs but put its case more broadly. 9 The substance of the case put by [NAME] of Submission is that in the absence of a particularisation of how the injury to Mr [NAME] occurred, [NAME] cannot know what case it is to meet at trial. 10 That challenge seems to be premised on a proposition that the injury to Mr [NAME] is a necessary element of the cause of action. That is, that there can be no breach of s 16(1) of the Occupational Health & Safety Act 1991 (Cth) ("the OH&S Act") without proof of an injury. 11 The Further Amended Statement of Claim is not pleaded on that basis. [APPELLANT] contends that there is no requirement for harm or injury to occur to establish a contravention of s 16 of the OH&S Act. In my view, that contention is clearly correct. 12 Whilst by its oral submissions, [NAME] continued to press its fundamental case put in its Outline, it went further. In essence, [NAME] contends that a pleading which pleads a contravention of s 16 of the OH&S Act must allege the duty owed by the employer and the content of the duty that was required in the particular circumstances. That is, the measures that it is said the employer should have taken but did not take to protect the health and safety of employees. [NAME] says that in order to properly plead the content of that duty, the pleading must identify with specificity the particular risks that the taking of the practical steps referred to in s 16(1) would have avoided. 13 Section 16(1) provides that an employer must take all reasonable practicable steps to protect the health and safety at work of the employer's employees. Section 16(2) sets out a number of examples of breaches involving the failure to take reasonable practicable steps. Section 16(1) is dealing with an employer's obligation to its employees. Section 16(4) extends the obligations of an employer specified by s 16(1) beyond its own employees and to persons who are contractors of the employer, but only in relation to matters over which the employer has control. 14 A pleading of a contravention of s 16(1) needs to identify the duty or obligation of the employer. That can be done, as seems to have been done in this case, by reference to the obligations identified in s 16(1) and (2). 15 The pleading must also identify the steps or measures that the employer should have taken but failed to take in order to avoid exposure to a potential risk to health and safety. The measures are to be identified with sufficient specificity to enable the employer to know what it is alleged it should have done. The specificity need not be extensive. The specificity needs to be sufficient and depending upon the measure in question, providing sufficient specificity of the measure may require the kind of risk that the measure is to address to be identified. In many cases, the identification of the kind of risk will be apparent from the specification of the measure itself. It is not the potential risk that needs to be identified with sufficient specificity but the measure. The identification of risk serves to help to identify the measure that the employer should have but is alleged to have failed to have taken. So much is apparent from the nature of the obligations imposed by s 16 on employers and the reasoning of the plurality in [NAME] v Industrial Relations Court of New South Wales (2010) 239 CLR 531, where the Court dealt with a like provision. 16 The obligations imposed by s 16(1) require an employer to identify risks to the health, safety and welfare of its employees ([NAME] at [11]) and to take steps to obviate those risks. There is no necessary obligation upon an employer to identify those risks with specificity. Much will depend upon the nature of the measure necessary to be taken to protect the health and safety of the employees. Thus, as is apparent from the reasoning of the plurality in [NAME] at [11] by way of the examples there given, an employer's obligation in relation to plant and machinery, includes its obligation to identify that its failure to keep plant and machinery in good order would pose a risk to the health and safety of its employees. There is no obligation on the employer to identify in relation to that measure, all the possible kinds of injury or harm that may be occasioned upon its employees by reason of the failure to keep its plant and machinery in good order. 17 Nor, in relation to a measure of that kind, is it necessary for a pleading of contravention to identify the exposure to risk with specificity. What is required however is that the pleading provides sufficient specificity to enable the employer to know what measures it should have taken to avoid the kind of risk that may have arisen because of its failure to take those measures. 18 Turning then to the Further Amended Statement of Claim and the specific pleadings under challenge. 19 Paragraphs 27.1 and 30.1 deal with the installation of guarding on the [NAME]. The pleading is not deficient. Both by reason of the identification of the measure itself and the particulars given, including as to the nature of the kind of risk in question, the pleading sufficiently identifies the measure that [APPELLANT] says each of the respondents should have taken. These paragraphs, in the context of the pleading as a whole, sufficiently put each of the respondents on notice as to the case that each must meet. In essence, what is alleged is that a guard of the kind that was later installed should have been in place on 17 June 2007. 20 Paragraphs 27.2 and 30.2 deal with the installation of a "dead man" or interlocking switch, the nature of which is particularised by reference to a description in the QSE Alert. I do not regard the pleading as deficient. Sufficient specification of the measure that the respondents should have taken but failed to take to avoid exposure to a potential kind of risk is given. Whilst the kind of risk is not expressly specified, the identification of the risk is sufficiently apparent from the specification of the measure and the fact that a dead man switch is a mechanism utilised to avoid the risk of injury arising from the inadvertent or unconscious functioning of a machine by its operator. 21 Paragraphs 27.3 and 30.3 deal with the failure to conduct a hazard identification and risk assessment on the [NAME]. I regard these paragraphs as deficient. Particulars are given as to the nature of the hazard identification and risk assessment and are provided through the documents referred to in the paragraphs and also in the particulars to the paragraphs in question. Taking paragraph 27.3 by way of example, the Work Sheet which is referred to at paragraphs 27.3.3 provides a comprehensive specification of the nature of the assessment which is suggested should have been undertaken. However, when that is read with 27.3.2 and 27.3.3 and the particulars as to "an adequate risk assessment" which are given, the pleading becomes confusing and the nature of the assessment that is said should have been taken becomes unclear. Further, the pleading fails to clearly identify when, or the regularity with which, such an assessment should have been conducted. The paragraphs should be struck out. 22 Paragraphs 27.4 and 30.4 deal with the failure to provide instructions about the safe working of the [NAME] to users of that machine. I think these paragraphs are deficient because they fail to sufficiently specify the measures that the respondents should have taken. Insofar as some specification is given it is too general and the respondents are unable to know what steps it is said that they should have actually taken. The paragraphs should be struck out. 23 Paragraphs 28.1 and 31.1 deal with the provision of adequate training in respect of the operation and use of the [NAME]. Insofar as these paragraphs identify inadequacy in training by reference to training in relation to the risks associated with the use of the [NAME] to avoid injury arising from fingers being crushed beneath the pads of the machine, there is sufficient specificity provided for the respondents to know the measure it is said they should have taken, but failed to take in relation to Mr [NAME] training. 24 Paragraphs 28.2 and 32.2 deal with the failure to provide Mr [NAME] with reference to procedures or other documents relating to the safe operation of the [NAME]. Insofar as these paragraphs identify the measures, as the provision of operating procedures which would have identified the danger of suffering an injury as a result of the user of the machine having his or her fingers crushed beneath the pads of the machine (and the stipulation of control measures to eliminate or reduce that risk), there is sufficient specificity given for the [APPELLANT]'s to know the steps it is alleged they should have but failed to take. 25 Paragraphs 28.3 and 31.3 deal with inadequate supervision of Mr [NAME]. The alleged failure is particularised as the failure to determine that Mr [NAME] had previously used the machine and was capable of using the machine in a safe manner. In my view these paragraphs sufficiently identify the measures that the respondents should have taken. 26 The Further Amended Statement of Claim alleges that the obligations of [NAME] extended to Mr [NAME] and that Mr [NAME] was a contractor. As I have said s 16(4) extends an employer's obligations to contractors. 27 [NAME] also contended that the pleading failed to properly plead the elements required by s 16(4) and in particular the "matters over which the employer has control" as required by s 16(4)(a). 28 Whilst there is no doubt that in this respect and in a number of other respects, the pleading could have been far more elegantly drawn, [NAME] contention concentrates on form and not substance and is to be rejected. 29 At paragraph 20A of the Further Amended Statement of Claim there appear 3 to 4 pages of pleading which is said to be the matters over which each of the [APPELLANT] and the second [APPELLANT] had control. [NAME] complains that the paragraph does not link the matters there identified to s 16(4) and that accordingly [NAME] is unable to understand that the matters there specified relate to the control required to be specified by reason of s 16(4). In essence, the complaint is that the paragraph should have opened with the words "For the purposes of s 16(4)". 30 Whilst the paragraph was not opened in that manner, I do not regard that any sensible reading of the Further Amended Statement of Claim would fail to understand that paragraph 20A is addressing the requirements of s 16(4). 31 [NAME] further contends by reference to the element of control that the pleading has failed to allege that the [APPELLANT] or the second [APPELLANT] had control of the work in which Mr [APPELLANT] was involved on 17 June 2007. In my view, the pleading is not deficient in that respect because control by each of the respondents over the use of the [NAME] is specifically alleged as well as control over the capacity to instruct the users of the machine (see paragraphs 20A(c) and (e)). Additionally the pleading alleges that Mr [NAME] was directed to use the machine by an employee of the [APPELLANT] (at paragraph 22). 32 [APPELLANT] says however that actual control must be pleaded and that that is not done. Even if that was so, in my view, it is at least strongly arguable that the right to control (as opposed to actual control) suffices and thus a pleading to that effect is sufficient. 33 I am not otherwise convinced that [NAME] has identified any deficiency in relation to the pleading requirements generated by reason of s 16(4). 34 [NAME] further contended that whilst paragraphs 29 and 32 referred to persons beyond Mr [NAME] there was no pleading that other users of the [NAME] or potential users were employees or contractors within the meaning of s 9A of the OH&S Act. That contention has force and [APPELLANT] has foreshadowed that it seeks leave to amend paragraphs 29 and 32 to remove the words "and those people listed in the Induction Training Record". 35 Other more minor matters were raised by [NAME]. I have considered each and reached a clear view that no deficiency of the kind that would warrant the striking out of the Further Amended Statement of Claim or parts thereof is warranted. Time does not permit me to set out my reasons in relation to those matters but I will do so when fuller reasons are published. 36 I will make orders striking out paragraphs 27.3 and 30.3 and 27.4 and 30.4 as well as paragraphs 29 and 32. I will reserve the question of costs and otherwise dismiss the notice of motion. I will provide [APPELLANT] a short opportunity to consider whether and to what extent it may seek leave to file a Further Amended Statement of Claim. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate: Dated: 23 March 2011