Gruber v Blake

[2000] NSWSC 226

Reported Decision: [2000] 30 MVR 483

New South Wales

Supreme Court

CITATION:	Gruber v Blake [2000] NSWSC 226
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20053/96
HEARING DATE(S):	13 March 2000
JUDGMENT DATE:	28 March 2000
PARTIES :	Natalie Louise Gruber (Plaintiff) Roderick Andrew Blake (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M J Robinson (Plaintiff) Mr H Shore (Defendant)
SOLICITORS:	Fiona Gazzard of Gordon Garling Moffitt (Plaintiff) Hunt & Hunt (Defendant)
CATCHWORDS:	Add defendant - extend time for filing amended statement of claim - S 43(1) and s 52(4) MAA explanation - Part 33 r 8A SCR - Part 20 r 1 SCR - Part 20 r 4(5) SCR - Part 8 r 8 SCR - S75AO TPA
LEGISLATION CITED:	Motor Accidents Act 1988 (NSW) Supreme Court Rules Trade Practices Act
CASES CITED:	Nicholas v Webb (No 2) (NSWSC, unreported 19 March 1993, Master Greenwood) White v The Nominal Defendant (NSWSC, unreported 4 November 1996, Master Greenwood) Brodie v Swan (NSWSC, unreported 27 May 1992, Studdert J) Salido v The Nominal Defendant (1993) 32 NSWLR 524 Guest v South & Anor (NSWSC, unreported 22 September 1995, Master Malpass) Sophron v The Nominal Defendant (1957) 96 CLR 469 Stollznow v Calvert (1980) 2 NSWLR 749 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Henricks v Agnew (NSWCA, unreported 23 October 1997)
DECISION:	See para 37

22

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 28 MARCH 2000

20053/96 - NATALIE LOUISE GRUBER v
RODERICK ANDREW BLAKE

JUDGMENT (Add defendant; extend time for
filing amended statement of claim;
s 43(1) & s 52(4) MAA explanation)

1 MASTER: The plaintiff by notice of motion filed 3 December 1999 seeks orders firstly, that the plaintiff’s explanation for the late making of a claim against the proposed second defendant, Pee Tee Why Nominees Pty Limited be accepted as full and satisfactory; secondly that leave be granted to commence proceedings against the proposed second defendant outside the time period allowed by s 52(4) of the Motor Accidents Act 1988 (NSW) (MAA); thirdly, the time for filing and service of the amended statement of claim be extended and that leave be granted to proceed on that pleading as against the proposed second defendant and fourthly that the DCM documents, statement of particulars pursuant to Part 33 r 8A of the Supreme Court Rules (SCR) and other documents filed in court and/or served on the first defendant by the plaintiff be documents as against the owner (Pee Tee Why Nominees Pty Limited) generally in these proceedings. The plaintiff relied on her affidavit sworn 10 August 1998 and the affidavits of Joseph Gabriel Lynch sworn 8 March 1999 and 9 November 1999 and Fiona Zita Gazzard sworn 2 December 1999. The defendant and proposed defendant were represented. They relied on the affidavit of Rosemaree Blake sworn 2 March 2000.

2   I shall deal firstly with the plaintiff’s explanation to the insurer of the proposed second defendant, Pee Tee Why Nominees Pty Limited (s 43(1) MAA); secondly the plaintiff’s explanation to the court (s 52 MAA). The explanation in relation to ss 43(1) and 52(4) of the Act is similar. Thirdly, I shall refer to the necessity to join the proposed second defendant under Part 8 r 8 of the SCR and lastly, whether the amendments against the first defendant in the proposed amended statement of claim should be granted in accordance with Part 20 of the SCR.

3   On 14 August 1993 both Mr Blake and Ms Gruber were travelling in a utility in an easterly direction along Rye Park Road Boorowa when it collided with a bank on the side of the road. Mr Blake alleges that Ms Gruber was the driver and he was a passenger. Ms Gruber alleges that Mr Blake was driving and she was the passenger. Neither Ms Gruber nor Mr Blake have any recollection of the accident.

4   In April 1995 Mr Blake commenced proceedings in this court against Natalie Louise Gruber as first defendant and Isuzu Motors Pty Limited (Isuzu) as second defendant. In those proceedings it is alleged that Ms Gruber as driver of the vehicle, was negligent. It is alleged against Isuzu that it failed to have in place a system or an adequate system for the testing of steering boxes and failed to manufacture a safe steering box and failed to lock or properly lock the thrust bearing locking plate of the steering box.

5 Mr Blake is a director and shareholder of Pee Tee Why Nominees Pty Limited. The plaintiff seeks leave to join the company under s 52(4) of the MAA.

6   For the purposes of this application I find the following facts.

(1) In June 1995 the plaintiff’s solicitor Mr Joseph Lynch took instructions from the plaintiff in relation to proceedings against her in the local court proceedings arising from the motor vehicle accident.

(2) Mr Blake and Ms Gruber went out together for three years. Their relationship broke up in May 1993. She gave evidence that Mr Blake was her next door neighbour. She used to see Mr Blake driving the vehicle on a daily basis as he was her next door neighbour and she could see him driving in the paddock every day. Early in the proceedings the plaintiff knew of the Gough and Needham reports. She knew that the steering mechanism could have been involved in the cause of the accident and knew that records relating to the vehicle could have been obtained by the local garages who serviced the vehicle.

(3) By the end of 1995 the plaintiff’s solicitor had read and was aware of the contents of the statement of Mr Gough and the report of Bert Needham dated 15 December 1993, which referred to the problems with the steering box. He was also aware of the report of Alex Tiplady dated 12 May 1994, which stated that “the accident was caused by the thrust locking plate, which has a male screwed thread coming undone due to the impact on the steering wheel mechanism when the off-road vehicle would come into contact with the ground after being airborne with the full steering lock on either side.” Mr Tiplady referred to several measures that could have been taken to lock this plate and had they been used the thrust bearing locking plate would not have come undone and a ball bearing from the worn shaft system would not have entered from behind the threaded locking plate which caused the steering wheel to lock up.

(4) When the plaintiff’s solicitor commenced proceedings he sought counsel’s advice generally. The solicitor gave consideration as to whether Isuzu should be joined as a defendant and was advised by counsel not to do so. One of the matters that the solicitor gave consideration to was whether the owner of the vehicle ought to have been joined on the basis that the vehicle was not properly maintained. At that stage he held the view that there was insufficient evidence to justify that course of action.

(5) On 22 January 1996 the plaintiff commenced proceedings in this court against Roderick Blake. Particulars of negligence are contained in para 4 of the proposed amended statement of claim. They allege that the defendant failed to keep any proper look out or failed to keep the vehicle under proper control, failed to stop, swerve or slow down to avoid the collision, drove at excessive speed, failed to apply brakes and drove while affected by alcohol.

(6) In the Blake proceedings, Isuzu applied for a permanent stay of proceedings. Isuzu Motors Australia Limited is the importer not the manufacturer of the Holden Rodeo motor vehicle involved in the accident. The claim against Isuzu in the Blake proceedings is made pursuant to the Trade Practices Act which deems the importer to be a manufacturer.

(7) On 5 January 1996 Newman J delivered judgment and referred to the reports of Constable Gough, Mr Bert Needham and Mr Tiplady. The nub of the application for a stay was that Isuzu would not nor would ever have the opportunity to inspect the steering box. Newman J found that by mischance the steering box in its dismantled state was lost by Mr Blake’s solicitors. It was misplaced during spring cleaning and will never be seen again. In the stay proceedings Isuzu submitted that it was prejudiced in that without the opportunity for its own experts to inspect the box it was not possible for them to come to any opinion and thus the plaintiff’s experts, that is Mr Blake’s experts, would be unchallengeable in a situation where their findings could be challenged. His Honour stated that a stay is only exercised in the rarest of cases. However he formed the view that the trial judge would be in a position to rule on the admissibility of the evidence adduced by the plaintiff and that being so he was driven to the conclusion that this was not a case where the court would exercise its jurisdiction to order a stay. He declined the application.

(8) On 25 March 1997 the defendant filed a defence. Paragraph 3 of the defence alleges that the vehicle left the roadway by reason of a mechanical defect of the steering box.

(9) On 1 April 1997 the court ordered that this matter be heard together with the matter of Roderick Blake v Natalie Louise Gruber being No 20357/95.

(10) In May 1997 Mr Blake issued a cross claim against the cross defendant Isuzu Motors Australia Limited in these proceedings. On 27 March 1998 the cross defendant filed a notice of motion seeking leave to file an amended defence to the cross claim. The cross claim and the amended defence have traversed the issue of the fault of the manufacturer of the vehicle.

(11) On 19 March 1998 the plaintiff’s solicitor obtained a report from Professor A E Churches from the School of Mechanical and Manufacturing Engineering at the University of New South Wales. In short it concluded that the bearing locking ring had in all probability unscrewed or become loose at some significant time before the accident. The loosening of the bearing locking ring allowed the development of freeplay of the steering wheel and that the presence of this freeplay provided a warning of steering fault to the driver. The loosening of the bearing lock ring causes a noisy operation of the steering which would also provide further warning to the driver. The report says that the presence of a steering fault would have been readily detectable to a mechanic.

The plaintiff’s solicitor conceded that this report could have been obtained at an earlier date at some time from early 1996. Counsel was not specifically briefed to advise as to whether or not the owner of the vehicle should be joined on the basis of his failure to maintain the vehicle properly. The plaintiff’s solicitor conceded that between 1996 to 1998 he did not take any steps to obtain an expert’s report.


(12) On about the 20 March 1998 the plaintiff's solicitor sought opinion of counsel as to whether or not the owner of the vehicle should be joined as a party to the proceedings.

(13) On 27 April 1998 the plaintiff’s solicitor received initial advice from Mr Taylor of counsel to join the owner of the vehicle as second defendant. Between 8 May 1998 and 1 July 1998, the plaintiff sought consent of the solicitors acting for the insurer to the adding of the owner of the vehicle as second defendant. None was forthcoming.

(14) On 14 August 1998 the plaintiff filed a notice of motion seeking leave pursuant to s 52(4) of the Act to commence proceedings against Pee Tee Why Nominees Pty Limited and to join them as second defendant and leave to amend the statement of claim. The motion was stood over to 1 September 1998.

(15) On 1 September 1998 there was no appearance on behalf of the plaintiff and the matter was stood over to 17 November 1998. The matter was stood over then to 16 February 1999. On 16 February 1999 the matter was given further directions and listed for further mention on 31 March 1999.

(16) On 31 March 1999 the plaintiff’s motion was stood over generally with liberty to restore on 3 days notice. The reason for this was that counsel had advised the plaintiff’s solicitor that the motion could not proceed until a formal claim was made under the MAA and six months had elapsed. On 4 June 1999 a notice to owner was served on Pee Tee Why Nominees Pty Limited at its registered office.

(17) On 8 June 1999 a motor accident claim form was served on the insurer NRMA Insurance Limited.

(18) In 22 June 1999 a signed notice to owner was served on Pee Tee Why Nominees Pty Limited at its registered office.

(19) On 22 June 1999 a letter was received from Hunt and Hunt solicitors acting on behalf of the insurer, requesting a full and satisfactory explanation for the delay in making a claim against the owner. On 25 October 1999 the affidavit of the plaintiff sworn 10 August 1998 was re-served on the insurer by way of explanation for the delay in making a claim against the owner. The insurer did not advise in writing that this explanation was not accepted.

(20) On 3 December 1999 the current notice of motion was filed.

7 I turn now to the plaintiff’s explanation for delay in commencing proceedings pursuant to s 43(1) and s 52(4) of the MAA. Section 43(1) provided:

“43(1) A claim must be made within 6 months after-

(a) except as provided by paragraph (b), the date of the motor accident to which the claim relates; or

(b) if the claim is made in respect of the death of a person, the date of death.
(2) If a claim is made more than 6 months after the date determined under this section, the claimant shall provide a full and satisfactory explanation for the delay in making the claim.
(3) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.
(4) Notice of a claim is required to be given to the person against whom the claim is made and, if that person’s insurer is a third-party insurer, to the insurer.”

8   Master Greenwood in Nicholas v Webb (No 2) (NSWSC, unreported 19 March 1993) stated:

“The words “full and satisfactory” in s 43(2) are conjunctive and refer to the explanation to be given. These adjectives relate to the qualities of the explanation. They do not relate to behaviour which requires an explanation. That the claimant has been delinquent in attending to a requirement of him under the Act or his solicitor has been tardy in carrying out his duties are not matters which go to the quality of the explanation. They go to the conduct of the parties.”

9   and:

“It is my view that in order properly to constitute the explanation required under s 43 it will usually be necessary for both the claimant and his solicitor to set out in written form precisely what has and has not been done and the reasons for the acts and the omissions of each. These explanations must be detailed.”

10   There is nothing within s 43 which brings into account the question of prejudice. Master Greenwood also held this view - see his comments in White v The Nominal Defendant (NSWSC, unreported 4 November 1996). Prejudice is a consideration in relation to leave sought pursuant to s 52(4) of the Act. It is also noted that the statutory non-compliances have not been raised in the defence. In Brodie v Swan (NSWSC unreported 27 May 1992) Studdert J held that a defendant wishing to rely upon non-compliance with the relevant statutory requirements should plead such non-compliance as this is required by Part 15 r 13 of the SCR. If I am wrong in this, the plaintiff’s explanation in respect of s 43(1) is the same as the explanation proffered for s 52(4) and I shall consider s 43(1) explanation in this light.

11 The accident occurred on 14 August 1993. The notice of claim should have been lodged against the owner of the vehicle by 14 September 1993. Proceedings should have been commenced against the owner by 14 September 1996. A notice of motion seeking leave under s 52(4) was originally filed on 14 August 1998, that is about two years out of time.
12 Section 52(4) MAA provided:

“A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken.”

13   The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time, or as it has often been expressed, that justice is best served if the applicant be given leave to proceed. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. At 532 Gleeson CJ set out some principles to be considered in the exercise of the discretion.

14   The following guidelines are posited by the Chief Justice:

“1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's legal representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from the plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material."

15   The plaintiff says that she has discharged the onus and established that it is fair and reasonable to extend time in which the action should be brought. Or to put it another way, the plaintiff has established that in all the circumstances, justice is best served by exercising discretion in favour of her.

16   In relation to the third guideline in Salido, the lack of diligence shown by the plaintiff's representative is considered a material factor. Studdert J considered this issue in Guest v Southern & Anor (NSWSC, unreported 22 September 1995). Guest is an appeal against the decision of Master Malpass that a full and satisfactory explanation had been given for the purposes of s 52(3). (This section is now s52(4)). In Guest, Studdert J held that the plaintiff was not personally responsible for the delay and considered it to be reasonable for the plaintiff to have relied upon his solicitors to the extent he did. The plaintiff’s solicitors were essentially to blame for the delay. Studdert J held that this was a very material consideration and referred to Sophron v The Nominal Defendant (1957) 96 CLR 469 and Stollznow v Calvert (1980) 2 NSWLR 749.

17   In Stollznow the Court of Appeal entertained an appeal against the decision of a trial judge who declined to order dismissal of proceedings for want of prosecution. It would seem that the inactivity complained of was not inactivity for which the plaintiff was personally to blame. On the hearing of the appeal Moffitt P, with whom the other members of the court agreed, said at 753:

“As a matter of principle the blamelessness of a plaintiff personally for the delay is a fact relevant to be considered, along with other relevant facts. The submission of the appellant to the contrary, namely, that the fault of the respondent’s solicitor should be attributed vicariously to the respondent was that, despite the absence of any personal fault she should be held to be to blame and the proceedings necessarily dismissed, should be rejected.”

18   It was in this context, that Studdert J said that the function of the provision s 52(3) is to require the claimant to explain that conduct in the course of providing a full and satisfactory explanation for the delay. It is not to provide a weapon which may enable an insurer to defeat the claim because of such conduct. It may be defeated if the court decides that the claimant has failed to provide a full and satisfactory explanation for the delay in relation to blame attributable to solicitors.

19   The plaintiff’s solicitor originally considered that there was insufficient evidence to justify a claim against the owner for their failure to properly maintain the vehicle. He did not specifically seek counsel’s advice on this issue. Counsel specifically advised the solicitor not to join Isuzu. By the end of 1995 however, the solicitor had become aware that the steering box was irretrievably lost. He did not reconsider and obtain an experts report in relation to the steering box until February 1998. The plaintiff was aware of the reports of Mr Gough and Mr Needham in 1995. However she was reliant on the advice of her solicitor to whether or not the owner of the vehicle should become a party to the proceedings. The delay is not attributable to the plaintiff. There was delay in prosecuting the motion which appears to be the fault of the legal advisers. In my view the delay has been satisfactorily explained. However from about 14 August 1998 Pee Tee Why Nominees Pty Limited were on notice that the plaintiff was seeking to join it.

20   Salido was decided before Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. In Taylor, the High Court was dealing with an application to extend time pursuant to s 31(2) of the Limitations of Actions Act Queensland 1974 which is almost identical with s 58(2) of the Limitation Act 1969 in New South Wales. Taylor deals with prejudice that occurs with delay. These principles enunciated in Taylor expand on what was said by Gleeson CJ in Salido and are applicable to s 52(4) applications - see Hendricks v Agnew (NSWCA, unreported, 23 October 1997).

21   In Taylor’s case McHugh J refers to the effect of delay on a trial. His Honour says:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

22   and;

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.”

23   Dawson J, in Taylor said at page 2:

“The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

24   I accept that the defendants would suffer the prejudice of the loss of the statutory bar to which they are now entitled. The defendants would also suffer from the tyranny of time as witnesses memories fade. However, the defendants were on notice of the foreshadowed proceedings as from August 1998, when the solicitor for the insurer received a copy of the notice of motion.

25   The proposed defendant submitted that it is actually prejudiced because the steering box has been lost and will never be recovered. It was Mr Blake’s solicitors who lost the steering box. It appears that the police officer inspected the steering box and referred it to Mr Needham for examination. Mr Needham examined the steering box. They are independent reports. Mr Blake has served a report by Mr Tiplady who has commented on the steering box without examining it. Ms Gruber’s expert Professor Churches found himself in the same position as Mr Tiplady and has written his report without the benefit of examining the disassembled steering box. As foreshadowed by Newman J, these reports may not be permitted into evidence. This is not the case where one party has had the benefit of examining the steering box and the other due to delay has been deprived from having that opportunity.

26 Also the defendant submitted that any leave pursuant to s 52(4) of the Act would require Pee Tee Why Nominees Pty Limited to put on a cross claim against the existing cross defendant to Mr Blake namely Isuzu. That is a claim under the Trade Practices Act and the limitation period is three years without provision for extension. According to the plaintiff this prejudice cannot be overcome - see S75AO. The plaintiff submitted that the time for commencing an action under the Trade Practices Act S75AO is 10 years from the supply of the goods (the car in this case was new in 1992) or three years from the date of awareness of the alleged loss, ie., in early 1998 when the owner became aware that it might be subject to an application for joinder by the plaintiff. The plaintiff further submitted that counsel for Pee Tee Why Nominees Pty Limited conceded in oral argument that S75AO may not apply to cross claims in any event in which case there is no prejudice for the plaintiff to overcome. The defendant could have elected to join Isuzu General Motors Australia Limited at an earlier stage in the proceedings and it may be that it can still adopt this course of action.

27   In relation to guideline (5) the plaintiff has obtained expert evidence which supports her case that the owner should have been aware of the defect in the steering mechanism. There is evidence to suggest that the vehicle had been serviced but what those services entailed is not known. The log book of the vehicle is available. The plaintiff’s claim against the owner cannot be said to be futile.

28   The plaintiff is a relatively young woman and if she is successful with her claim, her damages may be substantial. She had intended to take over the running of the family property. She is a qualified wool classer. She can no longer work on the property and has taken up part time work in Canberra.

29   After taking these factors into account, it is my view that justice is best served if the extension of time is granted. The plaintiff has discharged her onus and established that it is just and reasonable to extend time. Leave is granted to the plaintiff to commence proceedings against Pee Tee Why Nominees Pty Limited.

30   In relation to adding Pee Tee Why Nominees Pty Limited, Part 8 r 8 of the SCR provides:

“Addition of parties

(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings.

(2) ...”

31   For the reasons given earlier and from the fact that the failure to properly manufacture the steering lock has already been raised in these proceedings, it is my view that it is necessary for the owner of the vehicle, Pee Tee Why Nominees Pty Limited to be joined as a defendant. This will allow all the matters in dispute to be effectually and completely determined and adjudicated upon. I make an order that pursuant to Part 8 r 8 SCR, Pee Tee Why Nominees Pty Limited be joined as a defendant in these proceedings.

Amendment of statement of claim against Roderick Blake

32   The proposed amended statement of claim seeks to add the following particulars of negligence against the first defendant. Failure to properly inspect and maintain the vehicle prior to the collision; failure to inspect the vehicle to ensure that it was safe for the plaintiff to ride in; failure to ensure the steering box mechanism of the vehicle was in good working order prior to the collision; failure to notice the steering box mechanism of the vehicle was not mechanically sound and/or in good working order prior to the collision; failure to notice the vehicle was not steering properly prior to the collision; failure to advise the plaintiff that the vehicle was in an unsafe and/or unsound mechanical condition prior to the collision; failure to warn the plaintiff of the danger of riding in the vehicle when he knew or ought to have known that the vehicle had defects in the steering box mechanism of the vehicle; the defendant drove or continued to drive the vehicle when he knew or ought to have known that it was not safe to do so; exposed the plaintiff to foreseeable risk of injury by permitting the plaintiff to ride in the vehicle when he was aware or ought to have been aware that it was not safe to do so; failure to warn the plaintiff of the danger of riding in the vehicle or otherwise prevent her from doing so.

33   Part 20 r 1 of the SCR provide as follows:

“General
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.”

34   Part 20 r 4(5) provides:

“(5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.”

35   It is trite law that amendments should be freely given so that a party’s case can be tried on its merits. The plaintiff alleges that the defendant as a driver of the vehicle ought to have heard a noise and been aware of problems with the steering mechanism, even if he drove it on one day, namely the date of the accident. The cause of action arises out of substantially the same facts. It is my view that in the interests of justice, the plaintiff should be permitted to amend the statement of claim as against the first defendant in the manner re-shadowed pursuant to either Part 20 r 1 or Part 20 r 4(5) SCR.

36   Costs are discretionary. The plaintiff submitted that the delay of over one year in the defendant filing his defence until after the plaintiff was statute barred in any event, entitled the plaintiff to her costs in the cause or at least an order that each party bear its own costs of the motion. However it is my view that as the plaintiff has sought an indulgence from the court she should pay the defendant’s costs.

37   The orders I make are:

(1) In relation to the proposed second defendant the plaintiff has made a full and satisfactory explanation for the delay in serving a notice of claim form pursuant to s 43(1) MAA .

(2) Leave is given pursuant to s 52(4) MAA for the plaintiff to commence proceedings against Pee Tee Why Nominees Pty Limited.

(3) Leave is granted to join Pee Tee Why Nominees Pty Limited as second defendant.

(4) Leave is granted to amend the statement of claim as against the first defendant as in the proposed amended statement of claim.

(5) Such amended statement of claim to be filed and served within 21 days.

(6) The plaintiff is to pay the defendant’s costs.
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Last Modified: 09/25/2000