Dowling v Watson

[2000] TASSC 165

[2000] TASSC 165

CITATION:              Dowling v Watson & Anor [2000] TASSC 165

PARTIES:  DOWLING, Nanette Roycie
  v
  WATSON, Kevin

EAGLE, Catherine Ruth trading as
SANDFORD EQUESTRIAN CENTRE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  898/1999
DELIVERED ON:  24 November 2000
DELIVERED AT:  Hobart
HEARING DATES:  1, 15, 21 November 2000
JUDGMENT OF:  Master Holt

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings - Originating process - Writ - Endorsement of claim - Adequacy.

Supreme Court Rules 2000 (Tas), r108(1)(b).
Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733, followed.
Renowden v McMullin (1970) 123 CLR 584, referred to.
Aust Dig Procedure [266]

REPRESENTATION:

Counsel:
           Plaintiff:  B Papadimitriou
           Defendants:  A J Abbott and L M C Cooper
Solicitors:
           Plaintiff:  Murdoch Clarke
           Defendants:  Hunt & Hunt

Judgment Number:  [2000] TASSC 165
Number of Paragraphs:  11

Serial No 165/2000
File No 898/1999

NANETTE ROYCIE DOWLING v KEVIN WATSON & CATHERINE RUTH EAGLE trading as SANDFORD EQUESTRIAN CENTRE

REASONS FOR JUDGMENT  MASTER HOLT

24 November 2000

1. On or about 17 November 1996, the plaintiff was riding a horse at the Sandford Equestrian Centre ("the Centre") supplied to her by the defendants being the operators of the Centre.  The plaintiff had placed a saddle on the horse, mounted it and had ridden it only a short distance when she lost control.  The horse fell, trapping the plaintiff's leg and breaking her ankle.  On 10 November 1999, a writ was issued on behalf of the plaintiff claiming damages for personal injuries.  The writ was served on the defendants on 7 August 2000, and on 18 August 2000, interlocutory judgment in default of appearance was entered in favour of the plaintiff against the defendants for damages to be assessed.  By application filed 14 September 2000, the defendants have applied to have the judgment set aside.  Paragraphs 1 and 2 of the application are as follows:

"1That Interlocutory Judgment in Default of Appearance against the Defendant [sic], dated and entered the 18th day of August 2000, be set aside pursuant to rule 355 of the Supreme Court Rules 2000 for want of compliance of the Endorsement on the Writ filed on behalf of the Plaintiff with rule 108(1)(b) of the Supreme Court Rules 2000.

2Alternatively, that Interlocutory Judgment in Default of Appearance against the Defendant [sic], dated and entered the 18th day of August 2000, be set aside pursuant to rule 355 of the Supreme Court Rules 2000 on any terms the Court considers appropriate;"

1. When the hearing commenced on 1 November, I was advised by counsel for the plaintiff that the application was opposed on the bases that the defendants had no arguable defence to the claim and that no satisfactory explanation had been provided for the failure to enter an appearance.  Several affidavits were read into evidence on behalf of the defendants and some cross-examination occurred.  When the hearing resumed on 15 November, I was informed that the plaintiff was prepared to consent to an order setting aside the judgment on appropriate terms.  I was told, however, by counsel for the defendants, that the defendants persisted in their contention that they were entitled to have the judgment set aside ex debito justitiae with costs.  According to the defendants, the general endorsement on the writ was defective and so the default judgment which followed was irregular.  Counsel for the plaintiff maintained the contrary view and as determination of the point may be relevant to the question of costs, the parties have asked me to determine the question as a discrete matter.

1. The defendants claim that the endorsement on the writ fails to comply with Supreme Court Rules 2000, r108(1)(b) which is as follows:

"108 ¾ (1)  Before a writ is issued, it is to be endorsed ¾

…

(b)in any other case, with a statement of claim or a concise statement of the nature of the claim made and the relief or remedy sought in the action begun by the writ."

The writ had not been endorsed with a statement of claim and the defendants contended that what had been endorsed did not give sufficient notice of "the nature of the claim made".  The endorsement was as follows:

"The Plaintiff's claim against you is for damages for personal injury suffered by the Plaintiff as a result of your negligence and/or the negligence of your servants and./or agents at the Sandford Equestrian Centre, 'York Grove', Musk Road, Sandford in Tasmania on or about the 17th November 1996.

*and costs to be taxed."

1. A general endorsement is not a pleading.  As was pointed out by Barwick CJ and McTiernan J in Renowden v McMullin (1970) 123 CLR 584 at 595 and 596, it:

"… marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in the statement of claim …

But, while the indorsement of the writ determines the essential nature of the action, it does not define, nor necessarily form part of the definition of the issues for trial.  That is done by the pleadings of which the writ does not form part.  When a statement of claim has been delivered it will in its finally amended form determine the issues for trial.  It will not normally be necessary to refer to the indorsement on the writ of summons to ascertain such issues.  Possibly, however, where there is ambiguity in the statement of claim the indorsement may serve to throw light upon the meaning of the statement of claim or of expressions in it." 

A plaintiff cannot deliver a statement of claim going outside the perimeter marked by the endorsement.  Where a statement of claim is delivered which omits a cause of action covered by the endorsement, the plaintiff is deemed to have abandoned that cause of action. Renowden v McMullin (supra) at 609.

If an endorsement does not adequately set the perimeter of the claim, it is irregular.  Rule 13, however, provides that non-compliance with any rule shall not render proceedings void unless the court so orders.  The remedy for a defendant in such cases is to reserve the right to apply for an order setting aside the originating process or its service by entering a conditional appearance, pursuant to r168.

1. The object of r108(1)(b) is to prescribe the basic information required to set the perimeter of the claim within which, absent amendment to the endorsement, the plaintiff will be confined. It is obvious that, accordingly, the assessment of the adequacy of an endorsement of claim is to be undertaken without inquiry as to whether in fact the defendant did or did not know the nature of the claim and the relief sought against him. The issue is whether upon a fair construction, the endorsement discloses these matters. Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733 at 737.

1. In this case, the endorsement discloses that the claim is for damages for personal injury arising from the defendants' negligence at the Centre on or about 17 November 1996.  What has not been disclosed are: the nature of the incident causing the injury; the act or omission of the defendants complained of and a description of the injury.  However, such matters do not need to be mentioned in the endorsement of claim.  The Full Court of the Supreme Court of Victoria in Ruzeu v Massey-Ferguson (Aust) Ltd (supra) considered whether or not the following endorsement was adequate:

"The plaintiff's claim is for damages for injuries he received to his back in an accident which occurred in or about the 2nd December, 1975 whilst he was in the course of his employment with the defendant.  The accident occurred as a result of the negligence of the defendant its servants or agents and the plaintiff claims damages."

Young CJ said, at 737:

"It was said that the indorsement was defective in that it did not give sufficient notice of the 'cause' of the claim and that to comply with that requirement of the rule it should have said what caused the injury of which the plaintiff complained.  For example, it should have said that he was hit by moving machinery or fell off a scaffold, or whatever the case might be.  But in our opinion the word 'cause' in the rule is not directed to the physical acts which caused the accident or the injury.  It is directed to the cause of action.  Thus what the endorsement must contain is sufficient notice of (a) the nature of the claim, (b) the cause of action relied upon and (c) the relief or remedy required.  In an action based on negligence particulars (a) and (b) will often be run together.  In the present case the particulars are: (c) damages for (a) personal injuries caused by (b) the negligence of the defendant.  Thus the indorsement clearly covered all the requirements of the rule."

1. It was submitted on behalf of the defendants that I should distinguish this case because the endorsement there not only disclosed the nature of the injury (a back injury), but also disclosed the relationship of the parties by referring to the injury occurring whilst the plaintiff "was in the course of his employment with the defendant" and thus identified the duty allegedly breached, namely the duty of care owed by an employer to an employee.  If these had been relevant reasons for allowing the endorsement, it would have been so stated in the reasons.  It was not, and I do not think that the case is distinguishable.  There is no authority in support of the proposition that a general endorsement of a claim for damages for personal injury must specify the nature of the injury.  The reference to the injury occurring in the course of employment with the defendant added little, as the nature and content of the employer's duty of care to an employee alleged to be breached may vary significantly from case to case.

1. The endorsement in this case does set the perimeter for the claim.  It sets that perimeter by identifying the relief claimed, being damages, and the nature of the claim being for personal injury caused by the negligence of the defendants at the defendants' equestrian centre on or about 17 November 1996.  The endorsement could have been drafted in more confined terms so as to narrow the perimeter of the claim.  For example, by disclosing that the incident, the subject of the claim, was a horse riding accident, rather than some other type of accident.  It was not and, in my view, did not have to be.  It is sufficient that it establish some recognisable perimeter disclosing the essential nature of the action, and it does this.

1. The defendants' counsel placed reliance on the decision of the Full Court in Elsum v Jameson [1974] VR 529. There, the endorsement was as follows:

"The plaintiff's claim is for damages arising out of a motor car accident that occurred on or about 12 December 1968 on Burwood Highway, Vermont, as a result of which the plaintiff suffered loss and damage."

The Rules of Court required that the endorsement, in addition to specifying the remedy sought, give notice of the nature of the claim and the cause of action.  The endorsement failed to identify the way in which the defendant was to be regarded as answerable.  Was it a property damage claim and, if so, in what right was the claim put?  Was it a claim for damages for personal injuries resulting from the negligence of the defendant?  Was it a claim on behalf of the estate of a fatally injured person?  These questions were left totally unanswered by the form of the endorsement.  It plainly disclosed neither the nature of the claim, nor the cause thereof.  It was held that the endorsement was defective.  The case lends no support, however, for the defendants' contention that the endorsement in this case is defective.  Here, the endorsement, unlike in Elsum, discloses the essential nature of the action.  It does that sufficiently in accordance with what was said in Ruzeu (supra).

1. Where a plaintiff obtains a default judgment for damages to be assessed prior to the delivery of a statement of claim, damages may be assessed in respect of all or any of the matters encompassed in the endorsement. The defendant is entitled to notice of the assessment and to participate in it, r585. If there are matters which fall within the scope of the endorsement which are not brought forward upon the assessment of damages, the plaintiff's rights in respect of such matters will have been exhausted upon the entry of final judgment following the assessment. Accordingly, even if an endorsement is widely drafted, the defendant has no cause for complaint if there is compliance with r108(1)(b).

1. The endorsement of claim complies with r108(1)(b). The judgment entered is not irregular. I will hear counsel as to the further disposition of the application.