Balford v DRILLCORP Limited - [2001] WADC 131

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BALFORD -v- DRILLCORP LIMITED [2001] WADC 131

CORAM: LA JACKSON DCJ

HEARD: 6 JUNE 2001

DELIVERED : 11 JUNE 2001

FILE NO/S: CIV 2459 of 98

BETWEEN: CHRISTOPHER JOHN BALFORD
Plaintiff
AND
DRILLCORP LIMITED
Defendant

Catchwords:

Practice and procedure - Amendment of statement of claim to include statute barred claim

Legislation:

Supreme Court Rules, O 21, r 5

Result:

Statement of claim amended

Representation:

Counsel:

Plaintiff: Mr J R Johnson
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Ilberys
Defendant: McAuliffe Williams & Partners

Case(s) referred to in judgment(s):

Dye v The Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404; 23 July 1998
Helmy & Anor v SBS Engineering Pty Ltd & Anor, unreported; SCt of WA; Library No 980730; 14 December 1998
Renowden v McMullin (1970) 123 CLR 584
Weldon v Neal (1887) 19 QBD 394

Case(s) also cited:

Nil

LA JACKSON DCJ: The plaintiff's claim is for damages for personal injury arising out of an accident on 12 November 1994. The plaintiff was employed by the defendant working on a drilling rig north of Kununurra in the vicinity of the border between Western Australia and the Northern Territory.
This is an application by the plaintiff to re‑amend his statement of claim. The proposed amendment is to introduce a claim based on a breach of contract between himself and the defendant. It is now more than six years since the accident and a claim for damages for breach of contract is statute barred.
The plaintiff brings his application pursuant to O 21, r 5(5). The relevant parts of O 21, r 5 provide as follows:
"5(1)Subject to ‑
(a)Order 18, rules 6, 7 and 8;
(b)Order 20 rule 19 paragraphs 2 to 5; and
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the Court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4), (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks just to do so.
(3). . .
(4). . .
(5)An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
On 2 July 1998 the writ in this action was filed. The Indorsement of Claim read:
"The plaintiff claims damages against the defendant for injuries sustained by the plaintiff in the course of his employment with the defendant on or about 12 November 1994, which injuries were caused by the negligence, breach of contract and/or breach of statutory duty by the defendant, its servants or agents.
And the plaintiff claims:
(a)Damages.
(b)Interest and
(c)Costs."
On 14 August 1998 a statement of claim was filed in which the plaintiff's claim was pleaded as a breach of statutory duty. In doing so the plaintiff set out the material facts that he was employed by the defendant and that he slipped and fell. The breach of statutory duty was set out as particulars of negligence would have been. The plaintiff pleaded his injury and the consequences thereof.
On 18 November 1998 following a request by the defendant the plaintiff filed particulars of his claim giving details of how the accident occurred and of the breaches of statutory duty.
On 25 September 2000 the statement of claim was amended, it appears without objection, to add negligence as a cause of action repeating as particulars of negligence those matters described as constituting breaches of statutory duty.
This application was filed on 25 May 2001. As a result of an application to amend the defence, there were changes made by the plaintiff to his application to amend the statement of claim but nothing is significant upon those changes.
The plaintiff now seeks to further amend his statement of claim to plead a contract of employment between himself and the defendant and to plead a breach of that contract of employment. The particulars of those breaches are those particulars of breach of statutory duty and of negligence which already appear in the amended statement of claim.
I have no difficulty in coming to the conclusion that the cause of action for breach of contract "arises out of the same facts or substantially the same facts as" does his claim for breach of statutory duty and for negligence. There is substantial overlap between the facts and issues in both causes of action. Dye v The Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404; 23 July 1998 per Owen J at p 5.. Although O 21, r 5(5) provides amendment is a discretionary matter, there is no basis upon which that discretion ought not to be exercised in favour of the plaintiff. Helmy & Anor v SBS Engineering Pty Ltd & Anor, unreported; SCt of WA; Library No 980730; 14 December 1998.
The defendant argues that there is no power to grant the amendment because to do so would go beyond the indorsement of claim on the writ.
The argument is advanced in this manner.
Seaman at par 21.5.2 says:
"Delivery of statement of claim amends writ The delivery of a statement of claim within time operates as the amendment of the writ without leave: see [20.2.5]. However, claims made in the writ which are not included in the statement of claim are deemed to be abandoned: Renowden v McMullin (1970) 123 CLR 584 at 606, 609, 610; see also [6.1.1]. The claims may amend but may not exceed the writ: see O 20 r2(3) and [20.2.2] and [20.2.5]."
The defendant argues that upon the filing of the original statement of claim couched as it was in terms of breach of statutory duty only, the claims based on negligence and breach of contract endorsed on the writ are deemed to have been abandoned. Apparently the point was not taken in May 2000 when the negligence claim was added but is now. The defendant argues that no amendment can be made to the indorsement which would introduce a new cause of action which would otherwise be statute barred as it would be in this case.
I have some difficulty with that argument.
Order 20, r 2(2) and (3) provide:
"(2)A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
(3)Subject to paragraph (2) a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement."
Assuming the original statement of claim has amended the indorsement by deleting reference to negligence or breach of contract, in my opinion such claims "arise(s) from facts which are the same as, or include or form part of, facts giving rise to" the cause of action for breach of statutory duty. It is even closer than that. In a personal injury claim by an employee, the facts a plaintiff would need to prove to establish a claim for breach of statutory duty are the same as would be proved to establish a claim for negligence or for breach of implied terms of a contract of employment. Accordingly the statement of claim could be amended in the exercise of the power in O 20, r 2(3).
Even if that were not so, O 21, r 5 refers to a plaintiff amending "his writ", or any party amending "his pleading". The plaintiff would not be precluded from amending the writ provided any new cause of action arose out of same facts or substantially the same facts as the existing cause of action. I do not think it necessary to do so, but if it was, I would allow the plaintiff to amendment his indorsement back to its original state.
I found the decision in Renowden v McMullin (1970) 123 CLR 584 to be unhelpful. That decision concerned the interpretation of the rules of the Supreme Court of Victoria which do not appear to contain the equivalent of O 21, r 5(5). Nor does the possibility of amending an indorsement of claim appear to be canvassed in that decision. It followed the House of Lords in Weldon v Neal (1887) 19 QBD 394. In Dye v The Griffin Coal Mining Co Pty Ltd (supra), Owen J noted at p 9:
"Order 21, rule 5 is in substantially similar terms to Order 20, rule 5 of the English rules. Prior to the comprehensive review of the Rules of the Supreme Court in 1971, there was no provision to that which now appears in Order 21, rule 5. It is generally accepted that the English rules were amended to alleviate the strict application of the rule in Weldon v Neal and that the adoption of similar provisions in our rules in 1971 was for the same purpose."
For these reasons the statement of claim should be amended in accordance with the further minute of proposed re‑amended statement of claim dated 5 June 2001 except as agreed by the parties for cl 4 where the words :
"and/or it was the duty of the defendant and/or the defendant was under a statutory duty pursuant to Section 19 and/or 21 of the Occupational Health Safety and Welfare Act 1987 ('the Act')"
should be deleted and the words
"that the defendant"
be inserted.