Donnelly, Mervyn Maxwell v TB Contracting Pty Ltd and Comalco Aluminium Limited Trading as Comalco Research and Technology and Development Centre

[1998] TASSC 122

122/1998

PARTIES:  DONNELLY, Mervyn Maxwell

v
TB CONTRACTING PTY LTD
ACN 063 700 425
and
COMALCO ALUMINIUM LIMITED
ACN 009 679 127 Trading/as
COMALCO RESEARCH & TECHNOLOGY & DEVELOPMENT CENTRE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  792/1998
DELIVERED:  9 October 1998
HEARING DATE/S:  8 September 1998
JUDGMENT OF:  The Master

CATCHWORDS:

Procedure -Particulars - Knowledge - Notice - Whether a company can have a corporate intention - Rules of the Supreme Court, O21, rr24 and 26.

Burgess v Beethoven Electric Equipment Limited [1943] 1 KB 96, Fox v H Wood (Harrow) Ltd [1963] 2 QB 601; Webster v Peninsula Estates Pty Ltd [1969] 29 QWN 65, followed.
Cresta Holdings Ltd v Karlin & Ors [1959] 3 All ER 656, referred to.
Aust Dig Procedure [216]

REPRESENTATION:

Counsel:
           Plaintiff:  B C Hilliard
           Second Named Defendant:           D F M Zeeman
Solicitors:
           Plaintiff:  Watling Roche
           Second Named Defendant:           Archer Bushby

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  122/1998
Number of pages:  2

Serial No 122/1998
File No 792/1998

MERVYN MAXWELL DONNELLY v
TB CONTRACTING PTY LTD (ACN 063 700 425)
and COMALCO ALUMINIUM LIMITED (ACN 009 679 127)
Trading/as COMALCO RESEARCH & TECHNOLOGY &
DEVELOPMENT CENTRE

REASONS FOR JUDGMENT  THE MASTER

9 October 1998

The second named defendant has filed an interlocutory application seeking particulars of par4(q) of the amended statement of claim and particulars of injury, pain, suffering, loss of enjoyment of amenities, lost income and opportunity and the capacity for earning further income in the future, pursuant to pars5, 6 and 7 of the amended statement of claim.

The plaintiff claims against the defendants as a result of their alleged negligence and for breach of duty on 21 October 1997, when the plaintiff was injured in the course of his employment as he was engaged in lifting a platten whilst standing on conveyor belt rollers.  It is alleged that the accident occurred when the plaintiff was employed as an operator by the first named defendant at the second named defendant's premises.

Particular 4(q) of the particulars of negligence alleged against the second named defendant is as follows:

"Exposing the Plaintiff to risk of injury or damage of which the Second-Named Defendant knew or ought to have known;"

I was told by counsel that the plaintiff has given particulars of what the second named defendant "ought to have known" but not what it "knew" and that the particulars are sought of this allegation.

Mr Hilliard of counsel for the plaintiff referred to the Rules of the Supreme Court, O21, r24 which provides that when it is material to allege knowledge of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. 

As a result, he submitted that the plaintiff is not required to give particulars of what the second named defendant "knew" and he cited Burgess v Beethoven Electric Equipment Limited [1943] 1 KB 96 in support of his submission. That case was based on the then existing English rule (O19, r22) which is in identical terms to the present Tasmanian provision. The Court of Appeal held that notwithstanding previous practice, the rule was clear and that particulars could not be ordered where a particular condition of the mind is pleaded. I was not referred by counsel to Fox v H Wood (Harrow) Ltd [1963] 2 QB 601, in which the court maintained the application of the rule to what a party "knew" as distinct from what the party "ought to have known".

The issue of "knowledge" should be distinguished from that of "notice".  Order 21, r26 provides that when it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such as a fact, unless the form or the precise terms of such notice or the circumstances from which such notice is to be inferred, are material (see Cresta Holdings Ltd v Karlin & Ors [1959] 3 All ER 656).

Mr D Zeeman of counsel for the second named defendant submitted that the second named defendant, an incorporated body, cannot have a mind of its own and that it must receive knowledge by way of notice.  As he maintained that such notice was material in this case, particulars of it ought to be disclosed.  However, in Webster v Peninsula Estates Pty Ltd [1969] 29 QWN, Lucas J held that the word "person", in a similar rule, included a corporation, since it was quite possible for a company to have a corporate intention. This application is not concerned with the question of notice, but falls to be determined under O21, r24.

I should add that in England, the Federal Court of Australia and some of the other Australian States the equivalent rules have been amended to allow the court to order a party to provide, where he alleges knowledge, particulars of the facts if they are considered to be material.  It seems desirable that such an amendment should also be made to the Tasmanian Rules to permit disclosure if knowledge is inferred to be material in what is a common pleading.

As to the particulars of injury and loss sought under pars5, 6 and 7 of the statement of claim, I was told by counsel that since the action was commenced on 2 June 1998, some particulars have been supplied and that the plaintiff is now awaiting from the first named defendant a schedule of worker's compensation payments made to him.  It also seems that the particulars of special damages will need to be distinguished from the claim for general damages.  I refer the parties to my decision in Direen v The Commonwealth of Australia (File No 1018/98) in which I adverted to the conceptual approach which the courts have adopted is classifying such damages.

As a result, the application for further particulars of par4(q) is refused and I shall hear counsel as to a timetable for the supply of particulars of damage.