Fisher v Goff - [2012] WADC 159

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FISHER -v- GOFF [2012] WADC 159

CORAM: WISBEY DCJ

HEARD: 5 NOVEMBER 2012

DELIVERED : 12 NOVEMBER 2012

FILE NO/S: CIV 1648 of 2009

BETWEEN: COLLEEN MICHEEL FISHER
Plaintiff
AND
COREY ALAN GOFF
Defendant

Catchwords:

Practice and procedure - Appeal from deputy registrar - Statement of claim - Inclusion of cause of action not referred to in indorsement - Whether cause of action covered by indorsement - Whether cause of action arises out of substantially the same facts as covered by the indorsement

Legislation:

Fatal Accidents Act 1959
Rules of the Supreme Court 1971 O 6 r 1(1), O 20 r 2, O 21 r 5(5)

Result:

Appeal allowed
Application to amend refused

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Mr D W Williams

Solicitors:

Plaintiff: O'Halloran Legal
Defendant: Williams Handcock

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

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Morgan v Banning (1999) 20 WAR 474
Renowden v McMullin (1970) 123 CLR 584
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

WISBEY DCJ: The plaintiff was at the relevant time the de facto partner of Scott Ian Boscombe, who died on 8 June 2008 in a motor vehicle accident which the defendant accepts resulted from his negligent driving.
On 4 June 2009 the plaintiff issued a writ with a general indorsement which relevantly stated:
The plaintiff claims as the de facto partner of Scott Ian Boscombe, deceased (the deceased) damages on behalf of herself under the Fatal Accidents Act 1959 as amended in respect of the death of the deceased by reason of the negligence of the defendant on or about 8 June 2008 at Leinster in the State of Western Australia.
That cause of action is statutory, its existence created by the provisions of the Fatal Accidents Act 1959.
Section 4(1) relevantly provides that:
Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured …
Section 6 provides that every action under the Act shall be for the benefit of relatives of the deceased person. The term 'relative' is defined in sch 2 as including the deceased's de facto partner (providing the de facto relationship existed at the date and had been continuous for a period of two years immediately prior to death). The section provides that the court may give such damages as it thinks proportioned to the injury resulting from the death, to the parties for whose benefit the action is brought.
Section 7 provides that there shall be no more than one action under the Act.
Order 6 r 1(1) of the Rules of the Supreme Court 1971 require that before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
In Renowden v McMullin (1970) 123 CLR 584, 595 Barwick CJ and McTiernan J stated:
The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action … the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended.
An indorsement on a writ should not be read narrowly: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 239.
After some considerable delay, for reasons which are not presently relevant, the plaintiff changed solicitors on 8 September 2011. On 14 September 2011 the appointed solicitors filed a statement of claim particularising the statutory dependency claim. Additionally, the plaintiff included a claim for damages for personal injury (psychiatric sequela) which she claims to have suffered as a result of learning of the death of the deceased.
On 18 October 2011 the defendant filed a defence in which he admitted negligence; denied the plaintiff's dependency; and pleaded a limitation defence in respect of the claim for damages for personal injury. The defendant's position was that the claim for damages for personal injury was a departure from the writ indorsement, and was impermissible.
As a result of a registrar direction and by agreement the plaintiff filed a chamber summons on 14 June 2011 in which, in it subsequently amended form, she sought leave to amend the indorsement on the writ in accordance with a proposed minute. Essentially the minute sought to include within the confines of the indorsement, the claim for damages for personal injury adverted to in the statement of claim.
The position adopted by the plaintiff is a little puzzling having regard to the fact that her legal advisers are of the view that a claim for damages for personal injury is consistent with and covered by the indorsement. It does not amount to a departure. The plaintiff refers to O 20 r 2 of the Rules of the Supreme Court which relevantly states:
(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 sub‑rule (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.
If the plaintiff's submission is correct, and the cause of action identified in the indorsement wide enough to encompass the personal injury claim, and/or the personal injury claim arises from facts which are the same as, or include or form part of, facts giving rise to the cause of action identified in the indorsement, the plaintiff is not required to do anything. In the event that the defendant challenges that position it would be incumbent upon him to apply to strike out the offending paragraphs of the statement of claim.
On 21 August 2012 the defendant filed a notice of appeal from the decision of Deputy Registrar Harman made 8 August 2012 allowing the plaintiff leave to amend the indorsement on the writ of summons in accordance with a minute of amendment, to include reference to the personal injury claim.
The notice of appeal was filed two days after the expiration of the specified period allowed for so doing, and in the circumstances the defendant seeks an order extending time. The plaintiff accepts that it is appropriate for the extension to be granted.
I am unable to accept the plaintiff's submission that the personal injury claim is encompassed in the cause of action identified in the indorsement. That submission results from a misunderstanding of what constitutes a 'cause of action'.
In Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, Wilson J stated (245):
The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which give rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage.
The concept has been expressed in various other ways:
In Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 when addressing O 21 of the Rules of the Supreme Court Owen J stated (434):
For these purposes, it can be taken that a 'cause of action' is the fact or combination of facts which give rise to a right to sue.
In Morgan v Banning (1999) 20 WAR 474 Owen J when referring to the phrase 'cause of action' in O 20 r 5(5) stated that in a narrow sense it meant that basket of facts which gave rise to the right to approach the court for relief. Wheeler J expressed a similar view, stating that she proposed to use the expression 'cause of action' in order to describe merely a factual situation which would entitle a person to approach the court for relief.
In Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415 Malcolm CJ stated [31]:
A cause of action accrues when all the facts have occurred which the plaintiff must prove in order to succeed.
In my view the original indorsement identifies and is restricted to the statutory cause of action pursuant to the Fatal Accidents Act. Essentially that refers to the legal rights that would have reposed in the deceased but for his death, which in truncated form have been statutorily given to his dependent relatives. The additional claim identified in the statement of claim is the plaintiff's personal claim for injuries resulting to her, consequent upon learning of the death of the deceased. It is a common law cause of action.
The defendant claims that the inclusion of the common law claim amounts to departure and seeks to set up a cause of action which is statute barred, and that in those circumstances the deputy registrar should not have allowed any amendment to the indorsement.
Resolution of the controversy requires an examination of O 21 r 5(5) which provides (inter alia) that an amendment may be allowed by the court notwithstanding that its effect will be to add 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.
It would be proper for the court to allow the amendment if the proposed cause of action arises out of the same facts or substantially the same facts as the cause of action originally identified. The critical question is whether that is the case.
The facts or elements which go to establish the cause of action identified in the indorsement are:
(i)a duty owed by the defendant to the deceased;
(ii)breach of that duty (negligence);
(iii)the negligence resulted in the death of the deceased (causation);
(iv)the plaintiff was a relative of the deceased; and
(v)the plaintiff was at all material times dependent upon the deceased.
The facts or elements which are necessary to establish the proposed common law claim are:
(i)a duty owed by the defendant to the plaintiff;
(ii)a breach of that duty (negligence);
(iii)the breach was causative of reasonably foreseeable adverse psychiatric consequences.
In Dye v Griffin Coal Mining Co (434) his Honour Owen J stated:
For these purposes, it can be taken that a 'cause of action' is the fact or combination of facts which gives rise to a right to sue … I agree with the comment of the trial judge that questions such as whether a claim is 'new' or whether it arises substantially from the same facts are largely and often questions of degree. This is essentially a matter of impression and, unless it can be shown that the trial judge misdirected himself or failed to take relevant factors into account, an appellate tribunal will be slow to interfere: see Welsh Development Agency v Redpath Doorman Long Ltd (1994) 1 WLR 1409 at 1417 ‑ 1418; (1994) 4 All ER 10 at 19. It is no objection that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action.
The facts of the accident and the resulting death of Scott Ian Boscombe seemed to me to be the only facts common to each cause of action. I am not satisfied that the factual overlap is such that the proposed new cause of action can fairly be said to arise out of the same or substantially the same facts as those relevant to the cause of action expressed in the indorsement.
There will be an extension of time to appeal; the plaintiff's application filed 14 June 2011 is dismissed; and the plaintiff is ordered to pay the defendant's costs of the application to be taxed.