Dunne v Quito Pty Ltd - [2009] WADC 69

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUNNE -v- QUITO PTY LTD [2009] WADC 69

CORAM: EATON DCJ

HEARD: 29 APRIL 2009

DELIVERED : Delivered Extemporaneously on 1 MAY 2009 typed from tape and edited by Trial Judge

FILE NO/S: CIV 392 of 2008

BETWEEN: BRADLEY CHARLES DUNNE
Plaintiff
AND
QUITO PTY LTD
Defendant

Catchwords:

Practice and procedure - Late application to amend statement of claim – Whether proposed amendment introduces new cause of action - Limitations

Legislation:

Limitations Act 2005
Rules of the Supreme Court 1971

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr M Greenland

Solicitors:

Plaintiff: Simon Walters
Defendant: Greenland Legal Pty Ltd

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

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Dye v Griffin Coal Mining Company Pty Ltd (1998) 19 WAR 431
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Weldon v Neal (1887) 19 QBD 394

EATON DCJ: The plaintiff commenced action in this Court by the filing of a writ of summons on 25 February last year, endorsed to the effect that his claim was for damages for personal injury arising from a work accident which occurred on 17 February 2006, which accident was caused by the negligence of the defendant, its servants and agents.
The defendant entered an appearance and the plaintiff filed a statement of claim on 20 March 2008 wherein he alleged that, at the material time, he had been employed as a potter by the defendant at the defendant's premises at Wanneroo. He alleged, in his statement of claim, that on 17 February 2006, whilst at work, he was laying out pots in 30 litre containers when "suddenly and without warning" he incurred a lifting injury to his leg and back. He asserted that the accident was caused by the defendant's negligence and went on to particularise that negligence.
On 8 April 2008, the defendant filed a defence admitting that the plaintiff was, at the material time, an employee of the defendant but not admitting the alleged injury on 17 February 2006. The defendant asserted that the plaintiff's task on the day in question was to transfer small potted plants into larger pots; a task not requiring lifting equipment. The defendant asserted that the plaintiff had been instructed as to how to lift appropriately.
On 15 July 2008, the defendant amended its defence by asserting that the plaintiff had aggravated a pre‑existing back condition while in the course of his employment on or about 11 January 2006 and that the aggravation resulted from the plaintiff uprooting plants in a fit of temper instead of breaking the roots before lifting the pots as he had previously been instructed to do so. The defendant further asserted that the plaintiff had aggravated his pre‑existing back injury by using a 4‑wheel drive whilst engaging in recreational off‑road driving on or about Sunday, 8 January 2006.
On 1 December last year, this matter was listed for trial. The trial is due to commence next Tuesday, 5 May 2009 with an estimated hearing time of four days.
On 23 March, the plaintiff filed papers for the Judge. On 23 April, the plaintiff applied by Chamber Summons for leave to amend his statement of claim to allege that he had commenced employment with the defendant on or about 8 November 2005 and thereafter was required to perform repetitive lifting of pots, including heavy pots, and to transport those pots with a tractor over rough and uneven terrain; those tasks, at the encouragement of the defendant, to be performed at a rapid rate and without regular breaks. The plaintiff further asserted that on or about 12 January 2006, he began to experience back pain associated with his work tasks and that on 17 February 2006, while laying out potted plants in 30 litre containers, he incurred an injury to his back with pain radiating to his right leg and right foot. That injury was said to have been caused by the defendant's negligence.
Originally, the plaintiff asserted, by way of particulars of negligence, that the defendant failed to provide a system of work whereby employees would work at a safe speed; failed to provide proper lifting equipment; failed to provide proper training as to appropriate "posture/position" when lifting; failed to provide a safe work place and failed to note the level of harm sustained by the plaintiff and take appropriate action to limit that harm, instead ordering him to continue performing similar work following the alleged back injury.
By way of proposed amended particulars of negligence the plaintiff seeks to allege that the defendant required its employees to perform a repetitive lifting task with large weights; to perform a high frequency of repetitive lifting tasks without requiring, enforcing or encouraging regular breaks; failed to provide a suitable tractor seat without adequate suspension to prevent or minimise risk of injury and failed to provide guidance as to posture and position when lifting.
The plaintiff proposes to abandon his allegation that the defendant was negligent in failing to provide proper lifting equipment and failing to note the level of harm sustained by him and take appropriate action to limit that harm, instead ordering him to continue performing similar work following the back injury.
The plaintiff's application is supported by an affidavit sworn by his solicitor who deposes to the proposition that the plaintiff seeks to amend his statement of claim to "more accurately reflect the events leading up to the work accident and the cause of injuries incurred by the plaintiff."
Order 21 of the Rules of the Supreme Court 1971 allows the plaintiff, without leave of the Court, to amend any pleading once at any time before the pleadings are deemed to be closed. Clearly, the pleadings in this matter are closed. Order 21 r 5 enables the plaintiff to apply for leave 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.
Order 21 r 5(5) provides that an amendment may be allowed notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the cause of action arises out of the same facts or substantially the same facts as the cause of action in respect which relief has already been claimed in the action by the party applying for leave to make the amendment.
It is well established that the phrase, "cause of action" is a reference to the fact or combination of facts which gives rise to a right of action. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245.
In this matter the plaintiff originally complained of a discrete injury which occurred on 17 February 2006 to his leg and back while laying out potted plants in 30 litre containers. A key element of his particulars of negligence was the alleged failure of the defendant to provide proper lifting equipment and proper training.
The plaintiff now seeks to expand his claim in a manner that is, in some ways, incomprehensible, in that he alleges that on or about 12 January 2006 he began to experience back pain associated with his work tasks and that on 17 February 2006, during the course of his work, he incurred an injury to his back with pain radiating to his right leg and right foot. Paragraph 3 then refers to "the aforesaid accident", asserting that it was caused by the defendant's negligence. But, to my way of thinking, having perused carefully the proposed amended statement of claim, there is no longer an accident per se but rather an accumulation of various alleged circumstances giving rise to the development of an injury.
The plaintiff seeks to amend his particulars of negligence by no longer asserting a failure to provide proper lifting equipment pertinent, presumably, to a discrete injury on 17 February 2006 but, rather, asserts that the injury suffered by him resulted from repetitive lifting without regular breaks and a failure to provide a suitable tractor seat with adequate suspension to prevent or minimise the risk of injury as well as a failure to provide guidance as to appropriate position and posture when lifting.
The defendant submits that the mechanism of injury is, in this case, of fundamental importance. It submits that the plaintiff now seeks to allege a back injury occurring as a cumulative effect over an unspecified period caused by repetitive lifting at a fast rate of work and driving a tractor without an appropriate seat.
Whether or not a particular proposed cause of action can be said to arise out of the same or substantially the same facts as an existing cause of action is essentially a matter of impression based on the degree of overlap. Authority for that proposition can be found in Dye v Griffin Coal Mining Company Pty Ltd (1998) 19 WAR 431 at 431.
In both the writ and the original statement of claim in the matter before me there is, as mentioned, an allegation of a quite discrete event described as a "work injury". The statement of claim emphasises the discrete nature of the injury in describing it as occurring on the day in question "suddenly and without warning".
In my opinion, the plaintiff proposes to shift the focus of the action from an alleged discrete injury on 17 February 2006 as the result of an accident to an injury incurred over a period of time, not the result of a particular single event, but rather, of the system of work imposed by the defendant upon the plaintiff and its requirement of him in that regard.
It is said that the plaintiff commenced work with the defendant on or about 8 November 2005. What is now asserted is, effectively, that the system of work and the requirements of the plaintiff made by the defendant from that point onwards accrued to the point where he suffered what amounts to, not a discrete injury occurring on a particular day, but what might be described as an injury the result of repetitive circumstances.
Clearly, in my opinion, what is asserted is a new cause of action which does not arise out of the same facts or substantially the same facts as the cause of action in respect of which relief was originally claimed.
Section 14 of the Limitations Act 2005 provides that an action for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued. The cause of action as pleaded in the plaintiff's endorsement of claim and original statement of claim accrued on 17 February 2006. The plaintiff commenced his action within three years, on 25 February 2008. If the proposed amendment does, in effect, amount to a pleading of a new cause of action, to allow the amendment would be to do so in circumstances where the plaintiff, were he attempting to commence an action based on that cause of action, would be statute barred from doing so.
In Dye v Griffin Coal Mining Pty Ltd (supra), Owen J, with whom Malcolm CJ and Kennedy J agreed, dealt with the question of whether the Court has power to permit an amendment to add a new cause of action after the expiration of the limitation period, otherwise than strictly in accordance with O 21(5)(5) of the Rules of the Supreme Court. Having considered the authorities pertinent to the point, Owen J concluded, as a matter of construction also, that when a court is confronted with a proposed amendment that seeks to add a cause of action that is otherwise statute barred, the court has a discretion, under O 21(5)(5) to allow the amendment if the conditions set out in the rule in Weldon v Neal (1887) 19 QBD 394 are satisfied.
In that particular case, Lord Esher, Master of the Rolls, said, and I quote:
"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the statute of limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute, and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the court might perhaps have the power to allow such an amendment, but certainly, as a general rule, it will not do so."
The defendant, in its submissions to me, points to O 1, r 4A and r 4B, dealing with elimination of delays and case flow management principles, respectively, and reminds me that if there is an unreasonable delay in making an application to amend, the applicant carries the burden of satisfying the Court that it should grant leave in the light of case flow management principles and the objects stated in those rules.
In this matter, says the defendant, the application is not supported by any sufficient proffered reason for delay. Mr Greenland has referred me, not to the affidavit filed in support of the application to amend, but rather to the affidavit filed in support of an application to adduce expert evidence, and refers me in particular to par 4 and par 10.
That affidavit, sworn in support of the application to adduce expert evidence, is sworn by the plaintiff's solicitor on 23 April 2009, the day on which that deponent swore an affidavit in support of the application to amend.
The point that Mr Greenland, for the defendant, sought to make in relation to the affidavit filed in support of the application to adduce expert evidence, is that the deponent in that affidavit deposes to the fact that on 10 September 2008, an ergonomist by the name of Ms Pietrocola attended Benara Nurseries and produced a report dated 18 September 2008. Mr Greenland submits, in effect, that the plaintiff sat on that report for several months and, in fact, waited until after the matter was listed for trial and the pleadings were well and truly closed before seeking to amend the statement of claim.
This action was the subject of a listing conference on 1 December 2008 before a Registrar with both counsel in attendance. It was then listed, as mentioned earlier, for trial on 5 May with an estimated hearing time of four days.
The plaintiff's application to amend was brought less than two weeks prior to the commencement of the trial. The affidavit filed in support of that application is brief and provides, really, no evidence as to the reason for the delay in bringing the application. The only evidence that is proffered is not to be found in the affidavit in support of the application to amend, but rather is to be found, as I have just mentioned, in the affidavit filed by the plaintiff's solicitor in support of an application to adduce expert evidence.
In Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323, Seaman J said, at 331, that:
"The exercise of the discretion to grant or refuse leave to amend, must take into account the principles and objects stated in O 1 r 4A and r 4B, where they are relevant."
It is true that it is of the utmost importance that at trial, where possible, there must be a determination of the real issues in controversy between the parties, and that to facilitate that end, leave to amend pleadings is often granted where the harm which might flow to the applicant's opponent might be compensated by an adjournment and/or an award of costs. In this case the defendant submits that an order for costs would, having regard to the plaintiff's circumstances, be a somewhat hollow gesture.
I raised the question of s 39 of the Limitations Act 2005 with Mr Clyne, counsel for the plaintiff and the applicant before me today. That section provides that a court may extend time to commence action for personal injury on application by a plaintiff, even though the limitation period provided for under the Act may have expired. On such an application, the Court may extend the time in which the action can be commenced if the Court is satisfied that when the limitation period expired, the plaintiff was not aware of the physical cause of the injury; was aware of the physical cause of the injury but not aware that the injury was attributable to the conduct of the defendant; or was aware of the physical cause of the injury and that the injury was attributable to the conduct of the defendant, but was unable to establish the identity of the defendant.
If such an application were made in this case, the plaintiff would need to satisfy me as to at least one of those circumstances. Those three circumstances were raised by me in an exchange with counsel for the plaintiff earlier this morning. It is readily conceded that the plaintiff would not be able to avail himself of any one of those circumstances and thus successfully apply for an extension of time under s 39 of the Limitations Act.
Having regard to the report from Dr Faigenbaum annexed to the affidavit of the plaintiff's solicitors, sworn 23 April 2009, in support of the application to amend and marked with the letter "A", I have concluded, as clearly Mr Clyne has, that the plaintiff, at least from 12 January 2006, would have known that his back was "playing up" to use the phrase used by Dr Faigenbaum, and that it related in some way to his work, because that is, in fact, what he told Dr Faigenbaum. According to that report, the doctor saw him again on 17 January 2006 and again on 20 February 2006. There was, at that time, as a result of his complaints to the doctor, an x‑ray and a CT scan.
The content of that report when contrasted with the framing of the endorsement of claim accompanying the writ, and the subsequent statement of claim, does seem to be somewhat irreconcilable. It is plainly the case that what is complained of in both the endorsement of claim and the subsequent statement of claim is a discrete injury said to have been suffered suddenly and without warning on 17 February 2006.
To my way of thinking the proposed amended statement of claim does, as I have said, raise a new cause of action, and in all of the circumstances having regard to the matters of prejudice raised by Mr Greenland, and the matters referred to by him in the course of his oral submissions to me today, I dismiss the application.