Written by Peter CarterSeptember 18, 2011
Despite no satisfactory explanation for a 3 year delay, a 26 yr old plaintiff was this month allowed to proceed with a negligent “schoolyard supervision” claim against the Kedron high school he attended in 2000.
Michele Mattiuzzi commenced proceedings in June 2005 for an injury he sustained during swim training in the Padua College pool when another student jumped (or was pushed) in on top of him. On the appointed trial date in June 2008 the parties agreed to consent orders vacating the trial and allowing the plaintiff to file an amended Statement of Claim within 28 days to plead an alternative to the principal allegation: that a teacher (a second defendant) had pushed the injurious intruder.
Despite the order and that the proposed amended pleading was annexed to the court material for the June 2008 order, “proceedings went to sleep until March 2001” until the plaintiff’s new solicitors who had been engaged as early as nine months previously – notified their involvement and sought agreement from the defendants to allow the amended Statement of Claim to be filed.
In his judgment published on 2 September, Robin J allowed the amendment to the pleading and rejected the defendant’s submission that the alternative allegation – that the teacher had merely failed to adequately supervise by not preventing students jumping into the path of or on other swimmers – constituted a new cause of action.
Noting that – in relation to the leave to proceed point – there was just no satisfactory explanation for the delay and that “the finger points [squarely] at the former solicitors”, His Honour found – despite being “fobbed off with statements to the effect that these things take time” – that “it was not [the plaintiff’s] responsibility” to have done more than make regular progress enquiries.
Following a checklist – articulated by the Court of Appeal in Tyler v The Custom Credit Corporation – the court ruled on most of 12 key factors in the plaintiff’s favour: evidence was preserved; the 6-year duration of the claim was not too great; good prospects of success; no disobedience of a court direction; claim otherwise adequately prosecuted, and the delay could not be sheeted home to the plaintiff himself.
The defendants’ strongest points were on prejudice. The school deposed that a financial provision that had previously been made to cover a possible adverse outcome was no longer carried and examples were given of projects underway that might be delayed or interrupted should a similar provision be required to be renewed in the school’s budget.
His Honour thought, however, that any adverse implication could be compensated by allowing “the defendant have indulgence in respect of satisfying the judgment” if the plaintiff were ultimately successful. Although theoretically the situation of the second defendant teacher “commands more sympathy”, the fact that both defendants were jointly represented meant, so held court, the second defendant would not – in practice – be in any worse situation were the claim allowed to proceed.
“The effect of Rule 389 is not to apply a more or less automatic striking out to a proceeding which is attended with unacceptable delay” ruled His Honour. Rather, “the purpose of it is to ensure that where there is delay of concern in proportions of the claim is not allowed to proceed unless the court, having devoted appropriate consideration to the matter, thinks that it ought to be.”