Commonwealth v Verwayen
170 CLR 39495 ALR 321
(Judgment by: DAWSON J)
Between: COMMONWEALTH
And: VERWAYEN
Judges:
Mason C.J.
Brennan J.
Deane J.
Dawson J.Toohey J.
Gaudron J.
McHugh J.
Subject References:
Estoppel
Judgment date: 5 September 1990
Judgment by:
DAWSON J
The circumstances of this appeal are sufficiently set out elsewhere. The respondent (the plaintiff in the action) pleaded in reply that the Commonwealth has waived, or is estopped from relying upon, a defence under s 5 of the Limitation of Actions Act 1958 (Vict.) raised by it by amendment of its defence. The respondent also pleaded in reply that the Commonwealth has waived a defence raised by it by amendment that, because the respondent was injured, if at all, whilst participating in combat exercises as a serving member of the Royal Australian Navy, the Commonwealth owed him no duty of care.
In argument, the respondent did not draw any clear distinction between waiver and estoppel. Indeed, authority favours the view that, in the present context, no such distinction can in principle be drawn. "Waiver" is an imprecise term and is used to describe what is done in a variety of circumstances rather than to assert any particular legal process. However, where it is not used in the sense of election between mutually exclusive alternatives, if it has any identifiable legal consequence, it is generally indistinguishable from estoppel. Isaacs J. made this point in a well-known passage in Craine v. Colonial Mutual Fire Insurance Co. Ltd. (1920) 28 CLR 305 , at p 326, where, in delivering the judgment of the Court, he used the word "waiver" in the sense of waiver by election and said that waiver requires a distinct act done with knowledge and intention in order to see whether there has been an election. Waiver looks "chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating' - in English terms, whether he has elected to get some advantage to which he would not otherwise have been entitled, so as to deny to him a later election to the contrary".
Isaacs J. contrasted election with the doctrine of estoppel by conduct which, he said (at p 327), "looks chiefly at the situation of the person relying on the estoppel" with the consequence that "the knowledge of the person sought to be estopped is immaterial". He concluded (at p 328) that "estoppel may be established where waiver cannot, and conversely waiver may be found where estoppel does not exist".
The passage from the judgment of Isaacs J. to which I have referred is cited in Spencer Bower and Turner, The Law Relating to Estoppel by Representation, 3rd ed. (1977), pp 318-319. The authors comment, at pp 319-320, that:
"The truth is, perhaps, that whereas a fairly successful attempt may be made to state with precision what is meant by 'estoppel' and by 'election', the term 'waiver' when used in a similar connotation is not capable of exact definition in the light of the authorities."
The authors here refer to Ewart, Waiver Distributed, (1917) where, at p 5, it is said of waiver: "No one has been able to give it satisfactory definition, or to assign to it explanatory principles. The word is used indefinitely as a cover for vague, uncertain thought." Spencer Bower and Turner continue, at p 320:
"Possibly it may be regarded as usefully describing an end-result; but its application to the process by which that result is brought about is almost invariably attended with ambiguity as to the essential nature of that process. The term when so employed is used sometimes in one significance and sometimes in another, and the result is that its use has dangers which may be avoided only by foregoing it as a useful term when considering either estoppel or election. When it does appear in the authorities, however, it is submitted that it will more probably be found to connote 'election' than 'estoppel' - and for the reasons which have so well been expressed by Isaacs J."
In Kammins Co. v. Zenith Investments (1971) AC 850, at p 883, Lord Diplock also distinguished waiver amounting to an election from waiver amounting to an estoppel. The former, he said, occurs where "a person is entitled to alternative rights inconsistent with one another" and "acts in a manner which is consistent only with his having chosen to rely on one of them". The latter "debars a person from raising a particular defence to a claim against him" and "arises when he either agrees with the claimant not to raise that particular defence or so conducts himself as to be estopped from raising it". In referring to waiver amounting to estoppel, Lord Diplock was speaking not only of estoppel by conduct which is based upon a representation or an assumption with respect to an existing state of affairs. He was also speaking of promissory or equitable estoppel which is based upon an assumption with regard to future conduct. The assumption may arise from a representation or from conduct - that is to say, it may be the result of an express or implied promise. See also The "Kanchenjunga" (1990) 1 Lloyd's Rep 391.
Of course, when Isaacs J. spoke about estoppel in Craine v. Colonial Mutual Fire Insurance Co. Ltd., he was confining his observations to estoppel by conduct. As he said in Ferrier v. Stewart (1912) 15 CLR 32 , at p 44, "estoppel has reference to an existing fact, and not to a promise de futuro, which must rest, if at all, on contract". But the law has developed considerably since Isaacs J. made his observations and promissory estoppel within its proper confines is no longer seen as a threat to the doctrine of consideration. A limited form of promissory estoppel had never entirely disappeared from the law of equity and, therefore, the development has taken place in that area. But, as was recognized in Waltons Stores (Interstate) Ltd. v. Maher (1988) 164 CLR 387 , the basic considerations underlying both common law estoppel and equitable estoppel have always been the same. The only thing standing in the way of their parallel development has been the persistence of the view at common law that to succumb to a doctrine of promissory estoppel would be to undermine the foundations of the law of contract. Yet the description of estoppel by conduct given by Dixon J. in Thompson v. Palmer (1933) 49 CLR 507 and Grundt v. Great Boulder Pty. Gold Mines Ltd. (1937) 59 CLR 641 is equally applicable to common law estoppel and equitable estoppel. The description appearing in Thompson v. Palmer, at p 547, is as follows:
"The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party."
The "unjust departure ... from an assumption" of which Dixon J. speaks is equally applicable to an assumption with respect to future conduct as an assumption with respect to an existing state of affairs and the requirement that the departure must be unjust may be taken as a reference to the unconscionable conduct required to found an equitable or promissory estoppel. It is the requirement of unconscionable conduct which is now seen as the protection against undue intrusion upon the law of contract, for a voluntary promise of itself will not give rise to an estoppel. An estoppel will occur only where unconscionable conduct on the part of one gives rise to an equity on the part of another. The estoppel will then operate to take account of that equity.
How exactly the estoppel will operate to take account of that equity is another question. The result of an estoppel at common law was, viewed as a separate and distinct doctrine from equitable estoppel, to preclude the party estopped from denying the assumption upon which the other party acted to his detriment. It followed that the party who acted to his detriment was, in effect, given the benefit of the assumption. It was all or nothing. By contrast, the view is expressed by Mason C.J. and Wilson J. and by Brennan J. in Waltons Stores (Interstate) Ltd. v. Maher, at pp 404-405 and p 423 respectively, that an estoppel in equity may not entitle the party raising it to the full benefit of the assumption upon which he relied. The equity is said "not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon": per Brennan J. at p 423. To avoid the detriment may, however, require that the party estopped make good the assumption: see Crabb v. Arun District Council (1976) Ch 179, at pp 190, 192, 199; Ramsden v. Dyson (1866) LR 1 HL 129, per Lord Kingsdown at p 170; Jones (AE) v. Jones (FW) (1977) 1 WLR 438 , at p 443; Riches v. Hogben (1985) 2 Qd R 292, at p 302. But, depending upon the circumstances of the case, the relief required may be considerably less.
If this view is right, estoppel at common law and in equity may have had common origins, but there the similarity stops. While the role of estoppel at common law was largely as a rule of evidence, its role has been vastly expanded in equity to raise questions of substance. At the same time, the discretionary nature of the relief in equity marks a further reason why the fear of the common law that promissory estoppel would undermine the doctrine of consideration is unwarranted. In this case, in view of the conclusion which I have reached as to the relief to which the respondent is entitled, it is not necessary to carry this aspect of the matter any further.
Nevertheless, the development of the equitable doctrine has been cautious. In Legione v. Hateley (1983) 152 CLR 406 , this Court held that promissory estoppel should be accepted in Australia as applicable to parties in a pre-existing contractual relationship. That is to say, it was held that it should be accepted that a person who has a contractual right may be estopped from enforcing it if he has made representations or has so conducted himself as to lead to an assumption by the other party that he does not intend to enforce it. He may be estopped from departing from the assumption if the departure would amount to unconscionable conduct and would operate to the detriment of the other party by reason of his having conducted himself in reliance upon the assumption. In Legione v. Hateley, since the parties were in a pre-existing contractual relationship, it was unnecessary to consider whether the doctrine of promissory estoppel should be accepted as a general doctrine applicable regardless of that relationship. That consideration arose in Waltons Stores (Interstate) Ltd. v. Maher and the further step was taken. A pre-existing contractual relationship was held not to be a prerequisite to the application of the doctrine of promissory estoppel. As I have said, the protection of the law of contract was seen to lie in the requirement of unconscionable conduct and the discretionary nature of the relief.
But it is, I think, unnecessary to go beyond Legione v. Hateley for the purposes of this case. For the parties here, whilst not in a contractual relationship, were in a legal relationship which began at least with the commencement of the action by the respondent against the appellant. It may well be that legal relations arose between the parties at an earlier stage upon the commission of the tort alleged by the respondent, but it is unnecessary to go back any further than the commencement of the action. Whilst the cases speak of pre-existing contractual relations, there is no reason why the doctrine of promissory estoppel, even in the restricted form recognized in Legione v. Hateley, should be confined to cases where the pre-existing legal relationship arose from contract. That was the view taken by Donaldson J. in Durham Fancy Goods Ltd. v. Michael Jackson (Fancy Goods) Ltd. [1968] 2 QB 839 , at p 847, and it appears to me to be plainly correct. See also Waltons Stores (Interstate) Ltd. v. Maher, per Mason C.J. and Wilson J. at p 399; The "Henrik Sif" (1982) 1 Lloyd's Rep 456, at p 466. In this case, the parties were in a relationship which gave rise to legal rights and duties with regard to one another; it was a legal relationship. One of the appellant's rights was the statutory right to bar the respondent's action by insistence upon the statute of limitations. If by its conduct the appellant caused the respondent to assume that it would not exercise that right, and departure by the appellant from that assumption would be unconscionable and would operate to the detriment of the respondent by reason of his having acted or omitted to act upon the basis of the assumption, there is no reason why the appellant should not be estopped from insisting upon the statute.
It is commonly said that a person may waive a statutory right in the sense of not relying upon it. In order to waive a statutory right in this way, it must be a personal or private right and must not rest upon public policy or expediency: see Brown v. The Queen (1986) 160 CLR 171 , at p 208. Provided that it bars a remedy rather than extinguishes a cause of action, a statute of limitations gives rise to a right of that kind and it must be pleaded if it is to be invoked: Re Burge; Gillard v. Lawrenson (1887) 57 LT 364. If it is not pleaded, it is said to be waived, but the use of the term "waiver" in this way exemplifies its imprecision. A waiver of this kind does not amount to an election and does not necessarily give rise to an estoppel.
A defendant who fails to plead a period of limitation may apply for leave to amend his defence to enable him to do so. The appellant did that in this case and was granted leave. The considerations which govern a decision to grant or refuse leave to amend are of a different kind from those which go to establish an estoppel. The rules of court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties (see now O.36, r.1 of the Supreme Court Rules (Vict.)) and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment: see Shannon v. Lee Chun (1912) 15 CLR 257 ; Tildesley v. Harper (1878) 10 ChD 393, at pp 396-397; Cropper v. Smith (1884) 26 ChD 700, at p 710. The usual terms which are imposed are an order for costs or an adjournment. In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial. An amendment may, however, be refused because it is made at such a late stage that neither costs nor an adjournment can compensate the other side for the failure to raise the issue at an earlier stage. In Ketteman v. Hansel Properties (1987) AC 189 the House of Lords considered an application for amendment which had been made at the stage of final addresses. It was an application to amend in order to raise a defence under a statute of limitations. Lord Griffiths observed, at p 219:
"I have never in my experience at the Bar or on the Bench heard of an application to amend to plead a limitation defence during the course of the final speeches. Such an application would, in my view, inevitably have been rejected as far too late. A defence of limitation permits a defendant to raise a procedural bar which prevents the plaintiff from pursuing the action against him. It has nothing to do with the merits of the claim which may all lie with the plaintiff; but as a matter of public policy Parliament has provided that a defendant should have the opportunity to avoid meeting a stale claim. The choice lies with the defendant and if he wishes to avail himself of the statutory defence it must be pleaded. A defendant does not invariably wish to rely on a defence of limitation and may prefer to contest the issue on the merits. If, therefore, no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties. If both parties on this assumption prepare their cases to contest the factual and legal issues arising in the dispute and they are litigated to the point of judgment, the issues will by this time have been fully investigated and a plea of limitation no longer serves its purpose as a procedural bar."
In this case, the appellant having amended its defence to plead the statute of limitations and the respondent having pleaded waiver or estoppel, an issue was raised for trial. But the issue raised was one of estoppel rather than of waiver in some other sense. When the term "waiver" is not being used to describe election or estoppel it may be used loosely to indicate non-insistence upon a right either by choice or by default. The use of the term in that sense raises a different question, namely, whether a party, having failed to insist upon his right at an appropriate time, should later be allowed to do so. In this case, that question was determined when the appellant was given leave to amend its defence. In a case such as Ketteman v. Hansel Properties that was the question for determination. Sometimes the questions of estoppel and of waiver in this loose sense are not kept distinct. Wilson v. McIntosh (1894) AC 129 is an example. In that case an applicant to bring lands under the New South Wales Real Property Act 1862 (26 Vict. No 9) filed a case in the Supreme Court more than three months after a caveat had been lodged. He thereafter obtained an order that the caveator should file her case. The Privy Council held that the applicant had thereby waived his right to have the caveat set aside as lapsed for non-activity on the part of the caveator during the period of three months. In so holding it relied upon a passage from the judgment of Darley C.J. in a similar case, Phillips v. Martin (1890) 11 NSWLR 153 at p 158, where he said:
"Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after, doubtless, much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour - asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts."
Clearly the question in both Wilson v. McIntosh and Phillips v. Martin was whether the applicant should be allowed to raise the issue of the lapse of the caveat, rather than whether that issue, if raised, should be determined in favour of one or other of the parties. They were not, therefore, cases in which the issue of lapse was raised and met by a plea of estoppel. Perhaps if the issue had been raised such a plea may have been successful, but that was not the question. Nevertheless, the terms "waiver" and "estoppel" were used interchangeably. Thus in Phillips v. Martin, at p 159, Innes J. expressed the view that it was rightly admitted by counsel for the applicant "that if anyone could be estopped from taking advantage of this Act that his client should be estopped in this particular case" and Foster J. said, at p 159, that "the applicant is estopped from taking that point at this stage of the case".
But the distinction between being allowed to raise an issue and the determination of an issue once raised is important because the two things are governed by different considerations. The distinction is more easily observed in the context of pleadings but is by no means confined to that situation. Quite commonly a point which is not a pleading point is not taken by a party to litigation when it arises and he is said to have waived it with the consequence that it cannot be raised at a later stage. A recent example is to be found in Vakauta v. Kelly (1989) 167 CLR 568 , which held that a party's right to object to the participation of a judge in the proceedings on the ground of ostensible bias had been waived as it had not been raised at the appropriate time.
In this case, by pleading waiver the respondent was not asserting that the appellant had lost the opportunity to plead the statute of limitations. Obviously, having been given leave to amend, it had not. Rather, the respondent was seeking to have the issue which was raised by the amended pleadings determined; he was seeking to have the appellant estopped from relying on the statute .
Although it was the respondent, the plaintiff in the action, who was seeking to have the appellant estopped, he was not doing so in a manner which was inconsistent with its defensive character. In Foran v. Wight (1989) 64 ALJR 1 at p 29; 88 ALR 413 at p 459, there is an observation that, even upon the traditional view:
"a plaintiff may rely upon an estoppel if he has an independent cause of action and the estoppel upon which he relies is in answer to a defence raised by the defendant rather than part of the cause of action itself: see Waltons Stores (Interstate) Ltd. v. Maher, at 400."
And in Waltons Stores (Interstate) Ltd. v. Maher, Deane J. at pp 444-445, said:
"It has often been said that estoppel can be used only as a shield and not as a sword. In so far as estoppel by conduct is concerned, that statement is generally true only in the very limited sense that such an estoppel operates negatively to preclude the denial of, or a departure from, the assumed or promised state of affairs and does not of itself constitute an independent cause of action. The authoritative expositions of the doctrine of estoppel by conduct ... to be found in judgments in this Court have been consistently framed in general terms and lend no support for a constriction of the doctrine in a way which would preclude a plaintiff from relying upon the assumed or represented mistaken state of affairs (which a defendant is estopped from denying) as the factual foundation of a cause of action arising under ordinary principles of the law ..."
What Deane J. is saying in that passage, as I understand it, is that a plaintiff may rely upon an estoppel, even in the formulation of his claim, if his cause of action is not one in which estoppel is an ingredient, however much estoppel may assist him in an evidentiary way in establishing his cause of action. Indeed, this case is a good illustration of the point. The respondent was in no position to rely upon an estoppel at the time he formulated his claim. The estoppel arose at a later stage and was pleaded in reply. A reply is obviously of a defensive character. Yet if the estoppel had arisen before the respondent commenced his action, he may have relied upon it as part of his claim, although his cause of action would still have been negligence, of which estoppel forms no part.
There can be no doubt that the appellant's conduct resulted in the adoption of an assumption on the part of the respondent. The respondent was plainly led to assume that the appellant would not raise a defence of limitation. Nor, to my mind, is there any doubt that the departure from that assumption by the appellant was unconscionable. It was not a case in which the adoption of the assumption by the respondent was occasioned merely by the initial absence of any plea raising the defence or by a mere promise not to raise it.
It was the result of a deliberate course of action on the part of the appellant pursued consistently over a considerable period of time. See The "Henrik Sif", at p 464. Moreover, it is significant that it was a course of action not confined to the respondent but extending to survivors of the Voyager collision in general. As the Minister for Defence stated in a letter in August 1985:
"the Commonwealth has acted consistently with its past practice in regard to VOYAGER claimants in admitting negligence (in the legal sense) and ... the Commonwealth has never relied upon the absolute defence open to it by reason of the expiration of the statutory limitation periods in regard to claims by VOYAGER survivors."
The solicitors who acted for the respondent also acted for many other survivors of the Voyager collision. Before commencing this action on behalf of the respondent, they had been engaged in correspondence with the solicitors acting for the Commonwealth and with the Minister for Defence himself in relation to an action brought on behalf of another Voyager survivor. In that action, they had requested that the Commonwealth not rely on the limitation defence. Both the solicitors acting for the Commonwealth and the Minister for Defence gave written assurances that the Commonwealth would not insist on its rights under the Limitation of Actions Act. In addition, from November 1983 conversations took place, usually on a weekly basis and usually by telephone, between the solicitors for the plaintiff in that action and the Commonwealth's legal representatives to the effect that the Commonwealth had agreed not to plead the statute. Before the respondent issued his writ in November 1984 his solicitors sought an assurance during September on behalf of the respondent and four other survivors of the Voyager collision that, in the light of the Commonwealth's treatment of the plaintiff in the previous action, "you treat these men the same and waive the Statute to allow us to proceed on their behalf". Although the formal assurance was not received until after the respondent's writ had been issued, it is a fair inference that he would not have commenced his action had he not expected, in the light of the treatment afforded his fellow serviceman, to receive the assurance he sought.
His expectation was met with an assurance that the statute would be waived. The respondent's delay in commencing the action was explicable upon reasonable grounds and the appellant's decision not to insist upon the period of limitation and to contest the case on its merits could readily be seen as prompted by a humane attitude befitting the Commonwealth towards a former member of its armed services. The appellant continued to encourage the respondent in his belief that there would be no insistence upon the statute by joining in applications for an expedited hearing and, a year after the commencement of the action, by reiterating that it would "not (be) pressing the statutory limitation period as a defence". The subsequent abrupt change in policy on the part of the appellant, unexplained as it was, constituted the breach of a firm assurance deliberately given on more than one occasion over a considerable period of time. The absence of any attempt by the appellant to justify the amendment to its defence, other than upon the basis that it was entitled to take the course which it did, leads inevitably to the conclusion that in conscience it was unable to do so, having stood by for so long whilst the respondent pursued his claim upon the basis that he was assured of success, subject only to the proof of damage.
There can be no question that the respondent acted upon the assumption that the appellant would not exercise its right to claim that the action was statute barred. No doubt the respondent was, or could be, compensated by an award of costs for any actual expense incurred as a result of the appellant's failure to plead the statute of limitations at the beginning. But the real detriment to the respondent was that he was induced by the assumption that the appellant would not insist upon the statute to allow the litigation to proceed for more than a year without taking any steps to bring it to a conclusion by way of settlement or, if necessary, withdrawal. Furthermore, as Lord Griffiths observed in Ketteman v. Hansel Properties, at p 220, "justice cannot always be measured in terms of money" and the strain of litigation, particularly where that litigation is between a natural person and a defendant with the resources of the Commonwealth, is not to be underestimated. By falsely raising his hopes, the appellant led the respondent to continue with the litigation and forgo any exploration of the possibility of settlement thereby subjecting himself to a prolonged period of stress in an action in which the damages claimed were for, amongst other things, a high level of anxiety and depression. I would hold that the appellant was estopped from insisting upon the statute of limitations, and would observe that the equity raised by the appellant's conduct was such, in my view, that it could only be accounted for by the fulfilment of the assumption upon which the respondent's actions were based; cf. Robertson v. Minister of Pensions [1949] 1 KB 227 .
The other defence raised by amendment which is said in reply to have been waived is that which alleges that the appellant owed the respondent no duty of care because he was injured, if at all, whilst participating in combat exercises as a serving member of the Royal Australian Navy. In fact, the appellant also amended its defence to deny negligence altogether in addition to denying the existence of a duty of care. It is difficult to understand why the respondent restricted his allegation of waiver to the more limited denial of liability, but in the absence of any amendment of the reply, that is the basis upon which we must deal with the matter. In my view, the appellant was estopped from denying any duty of care for the same reasons as it was estopped from insisting upon the statute of limitations. The two matters were clearly linked in causing the respondent to act or refrain from acting as he did. There was no more justification in the circumstances for the appellant's ultimate denial of liability than there was for its insistence upon the statute. The fact that the litigation was allowed to continue for as long as it did was no doubt due as much to the admission of liability as to the absence of any insistence upon the statute.
Furthermore, any estoppel raised here is also raised defensively rather than as part of the cause of action. Obviously, the cause of action as pleaded by the respondent in his statement of claim involved no estoppel. When the appellant made an admission of liability in its defence, the respondent was relieved, subject to proof of damage, of any obligation to prove negligence. It was by way of defence against the change brought about by the appellant's amendment of its pleading that the respondent raised the question of waiver in reply. The waiver, or estoppel, was not pleaded as part of the cause of action but to preclude the appellant from departing from the assumption which it had induced. I would hold that the appellant was also estopped from denying liability by claiming that it owed no duty of care to the respondent and, for that reason, it is unnecessary to consider further that particular defence.
I would dismiss the appeal. That is the order favoured by a majority of the Court. Its effect will be that the order made by the Full Court of the Supreme Court will stand and that the proceedings will be remitted for trial by jury on the issues of negligence and damages. Having had the advantage of reading the reasons for judgment of Deane, Toohey and Gaudron JJ., that is the appropriate result on the present state of the pleadings, notwithstanding that Toohey and Gaudron JJ. reach their conclusion upon the basis of waiver and Deane J. and I reach our conclusion upon the basis of estoppel. Of course, if (as one would expect) the respondent seeks, and is granted, leave to amend his reply to raise estoppel and waiver in relation to the denial of liability by the appellant (and not just the denial of a duty of care as at present), then, upon the basis of the views expressed by the majority (for whom I am able to speak on this point), the trial will proceed as an assessment of damages only.