ACT Supreme Court refuses pleading amendment for lack of material factual support

Passenger sued Canberra Airport and Qantas Airways after he tripped on a set of stairs

ACT Supreme Court refuses pleading amendment for lack of material factual support

The ACT Supreme Court has refused to allow the plaintiff of a case to amend a pleading because it was not supported by material factual circumstances.

In Cossey v Canberra Airport Pty Limited [2023] ACTSC 122, Matthew Cossey was walking down a set of stairs at Canberra Airport when he tripped on what he described as “the raised edging strip of the stairs.” He fell forward down approximately 14 steps. The stairs were constructed 13 years ago and are located between the Qantas lounge and the lower course. Canberra Airport admitted to being the lessor of the stairs, and Qantas Airways admitted it was the lessee.

Cossey commenced a lawsuit against the airport and Qantas Airways. In his statement of claim, Cossey alleged that both defendants were occupiers of the stairs at common law and under the Civil Law (Wrongs) Act 2002. Cossey claimed that the defendants owed him a duty to take all reasonable care to ensure that anyone on the premises did not suffer injury or damage because of the premises or things done or omitted to be done about the state of the premises.

Cossey also argued in his statement of claim that the defendants had a duty to warn entrants onto the premises of the presence of hazards, to attend to all hazards promptly and to provide appropriate safety signage and barriers as required and to take reasonable care not to allow risks to remain on the premises for a time longer than was warranted.

Proposed amendments

Cossey brought an application for leave to be granted to amend the originating claim and statement of claim. His proposed amendment states, “The first and second defendants were participants in, and responsible for, the design, construction and approval of stairs leading to and from the Qantas Business Lounge at the Premises.”

The court found an issue with the words “were participants in” and “responsible for” as it was unknown what those words meant.

Furthermore, Cossey also proposed to amend his statement of claim with “at all material times the defendants owed a duty.” The court refused to allow this amendment since duties ordinarily arise out of various factual circumstances unless they apply by operation of law. The court found that the proposed amendment pleaded a duty on the defendants “to ensure” that certain things were done. The court stressed that Cossey must plead some material facts out of which the obligation arose upon the defendants to achieve the objective identified, and no such material facts are pleaded.

Cossey’s counsel argued that those pleadings assert the duty contained in the Civil Law (Wrongs) Act 2002. However, the court found that the law deals with the content of the duty of care and is expressed in very general terms. It imposes on an occupier a burden to take all reasonable care in the circumstances to ensure no person suffers injury. But the section is silent about “all care that is reasonable in the circumstances.” The court emphasised that “circumstances” must be supported by the material fact, which would reasonably notify the defendants of the case they have to meet as to why it is, in light of those material factual circumstances, they had a duty to ensure the stairs were designed, constructed, and certified to a reasonable standard or to ensure they complied with the Building Code of Australia.

The court also pointed out that both defendants employed contractors to build the stairs. Still, the pleading is silent as to why in those circumstances, the principals of those contracts would owe an obligation to ensure the stairs were designed, constructed, or certified to a reasonable standard or to ensure they complied with the Building Code of Australia.

The court explained that under the Court Procedures Rules, the particulars must state the facts and circumstances of the negligent act or omissions if a party pleads negligence. The court concluded that Cossey’s pleading, at least so far as the proposed amendments are concerned, did not contain the necessary material facts to support the amendments. The court ruled that these proposed amendments may “tend to prejudice, embarrass or delay the fair trial” of the proceeding. As a result, the court refused to allow the proposed amendments, which were not supported by material facts.

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