Legal Research
Cases
Jones v Clyde Welshpool Pty Ltd

Jones v Clyde Welshpool Pty Ltd

Case [2000] TASSC 130 25 September 2000

Civil Litigation & Procedure

Type to search within this case.

[2000] TASSC 130

CITATION: Jones v Clyde Welshpool Pty Ltd [2000] TASSC 130

PARTIES:  JONES, Gregory John
  v
  CLYDE WELSHPOOL PTY LTD

CLYDE INDUSTRIES LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1451/1992
DELIVERED ON:  25 September 2000
DELIVERED AT:  Hobart
HEARING DATES:  18 September 2000
JUDGMENT OF:  Blow J

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Pleadings - Matters of law - Duty of care and breach thereof.

Supreme Court Rules 2000 (Tas), r227.
Konskier v B Goodman Ltd [1928] 1 KB 421; Gautret v Egerton (1867) LR 2 CP 371; West Rand Central Mining Co v R [1905] 2 KB 391, referred to.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
             Plaintiff:  A I Gaggin
             Defendants:  P A Griffits
Solicitors:
             Plaintiff:  Jennings Elliott
             Defendants:  Griffits & Jackson

Judgment Number: [2000] TASSC 130
Number of Paragraphs: 13

Serial No 130/2000
File No 1451/1992

GREGORY JOHN JONES v CLYDE WELSHPOOL PTY LTD
and CLYDE INDUSTRIES LTD

REASONS FOR JUDGMENT BLOW J

25 September 2000

The defendants have applied by interlocutory application for the plaintiff's amended statement of claim dated 19 May 1999 to be struck out, and for judgment to be entered in their favour. They contend that the amended statement of claim does not disclose a cause of action, and that that defect is irremediable. The plaintiff contends that the amended statement of claim discloses a cause of action in negligence, and seeks to amend that pleading further.

The plaintiff issued a writ on 15 December 1992 seeking damages for breach of contract, negligence, and breach of statutory duty in respect of personal injury alleged to have resulted from an incident on 27 December 1989. In a statement of claim filed with the writ, it was alleged that the plaintiff had been employed by one or other of the defendants, that a fellow employee had fallen and been seriously injured, that the plaintiff had witnessed the fall and its aftermath, and that various problems with his mental health had resulted. In par3 of that pleading, various non-contractual and non-statutory duties on the part of the first defendant and/or the second defendant were alleged, including duties to take all reasonable precautions for the safety of the plaintiff whilst he was engaged in carrying out his assigned work, not to expose him to a risk of damage or injury of which each defendant knew or ought to have known, to provide and maintain safe and adequate plant and equipment, to take reasonable care that the place at which he carried out his assigned work was safe, to provide and maintain a safe and proper system of work, and to ensure that proper safety procedures were implemented in respect of the work required of him. Identical duties in respect of the fellow employee were alleged in par2 of the pleading.

On 11 May 1999, the then Master made an order by consent giving the plaintiff leave to amend…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Clyde Welshpool Pty Ltd

Details

AGLC: Jones v Clyde Welshpool Pty Ltd [2000] TASSC 130
Case: [2000] TASSC 130
Decision Date: 25 September 2000

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Jones v Clyde Welshpool Pty Ltd and Clyde Industries Ltd involved an application by the defendants to have the plaintiff's amended statement of claim struck out, contending it failed to disclose a cause of action and that this defect was irremediable. The plaintiff, Gregory John Jones, sought damages for personal injury he alleged resulted from witnessing a fellow employee's fall at work. The amended statement of claim was delivered on 19 May 1999, omitting allegations of breach of contract or statutory duty, focusing solely on a claim in negligence. The defendants argued the amended statement of claim did not explicitly assert a duty of care or any other duty, nor any breach thereof, and thus did not disclose a cause of action in negligence.

The court examined the legal issue of whether the amended statement of claim needed to explicitly state a duty of care or other duty to disclose a cause of action. The court noted that Rule 227 of the Supreme Court Rules 2000 required pleadings to contain material facts but not matters of law. It concluded that, under the Judicature Act system of pleading, a plaintiff was not required to state the legal effect of the facts but only the facts themselves. The court found that while it might be preferable for a statement of claim to include explicit allegations of each duty owed by the defendant to the plaintiff, such explicit assertions were not necessary for a statement of claim to disclose a cause of action. The amended statement of claim sufficiently, albeit clumsily, pleaded all the essential ingredients of a "nervous shock" claim, including a relationship of proximity, negligence resulting in an injury witnessed by the plaintiff, and a chain of causation leading to psychiatric conditions.

In granting the plaintiff leave to further amend his pleading, the court noted that the proposed amendments, which included adding four further particulars of negligence and making minor changes to clarify the plaintiff's allegations, did not appear inherently confusing or prejudicial to the defendants. The court decided that the defendants' interlocutory application to strike out the amended statement of claim would be dismissed, and the plaintiff was granted leave to amend his pleading in accordance with the proposed changes. The court directed the new amended statement of claim be delivered within seven days and scheduled a hearing to address costs and any other consequential matters.

Orders