Mayne v Metropolitan Transport Trust - [1989] TASSC 52

Serial No 50/1989
List "A"

CITATION: Mayne v Metropolitan Transport Trust [1989] TASSC 52; A50/1989

PARTIES:  MAYNE
  v
  METROPOLITAN TRANSPORT TRUST

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  62/1982
DELIVERED ON:  6 October 1989
JUDGMENT OF:  Cox J

Judgment Number: A50/1989
Number of paragraphs: 13

Serial No 50/1989
File No 62/1982

MAYNE v METROPOLITAN TRANSPORT TRUST

REASONS FOR JUDGMENT COX J

6 October 1989

This is an application for leave to amend the statement of claim in these proceedings which were commenced by writ dated the 13 January 1982 endorsed as follows:–

"The Plaintiff's claim is for damages suffered by the Infant Plaintiff as a consequence of the negligent driving of the Defendant's servant or agent on Currajong Road, Mornington on the 7th day of May 1981."

The statement of claim delivered with the writ contained the following allegations:–
"1ON the 7th day of May 1981 the infant plaintiff was crossing Currajong Street, Mornington.
2THE said infant plaintiff was crossing the said roadway on a pedestrian crossing situated near the Mornington Primary School.
3AT the same time and place a bus owned by the Defendant was being driven on Currajong Street by the Defendant's servant or agent.
4THE said bus and the infant plaintiff collided.
5THE said collision was caused by the negligent driving of the defendant's servant or agent.
PARTICULARS OF NEGLIGENCE
a)Failing to stop, slow down or manoeuvre to avoid a collision.
b)Driving at a speed excessive in the circumstances.
c)Failing to keep any or any proper lookout.
d)Failing to yield right of way to the infant plaintiff.
e)Failing to comply with Road Sign no. 2 contrary to the Provisions of the Traffic (General & Local) Regulations 1959.
f)Failing to give way to a pedestrian using a pedestrian crossing contrary to Regulation 29 (3) of the Traffic (General & Local) Regulations 1959.

6AS a consequence of the said collision the infant plaintiff suffered damages in the form of loss, expense and personal injuries."

The defence delivered on the 18 February 1982 did not admit paragraphs 1 or 2 of the statement of claim, admitted paragraphs 3 and 4 thereof, denied paragraph 5 and every particular of negligence therein, did not admit paragraph 6 and pleaded that the collision was caused or contributed to by the negligence of the infant plaintiff.

The application to amend seeks to add to the particular alleged under paragraph 5 allegations that the bus driver failed to sound the horn (this amendment is not opposed by the respondent) and reversed the bus without ascertaining where the infant plaintiff was at that stage on the roadway. The particulars included an alleged breach of reg11(1) of the Traffic (General and Local) Regulations 1956. The proposed amendments continued:–

"6The defendant's servant or agent then reversed the said bus dragging the infant plaintiff along the roadway andor colliding with the infant plaintiff for a second time.
7The infant plaintiff was dragged along the roadway and the second collision was caused by the negligent driving…

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.

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Details

Case: [1989] TASSC 52
Decision Date: 6 October 1989

CaseChat Overview and Summary

The case of Mayne v Metropolitan Transport Trust involved a plaintiff seeking to amend their statement of claim to include additional particulars of negligence by the defendant's servant or agent. The plaintiff, an infant at the time of the incident, alleged she had suffered damages as a consequence of the negligent driving of the defendant's servant or agent on a particular date and location. The defendant denied the allegations of negligence and pleaded that the collision was caused or contributed to by the negligence of the infant plaintiff. The plaintiff sought leave to amend the statement of claim to include allegations that the bus driver failed to sound the horn and reversed the bus without ascertaining where the plaintiff was on the roadway. The plaintiff argued that some, if not all, of her injuries may have followed the second collision.

The legal issue before the court was whether the proposed amendments amounted to a new cause of action that would prejudice the defendant. The court referred to previous cases that established the guiding principles governing the exercise of a discretion to grant leave to amend pleadings. The court noted that the proposed amendments did not involve a new departure or new head of claim, but rather sought to broaden the particulars of breach to encompass a slightly longer period of time when the driver reversed the bus. The court concluded that the amendments did not involve pleading a new cause of action.

The court allowed the amendments, noting that there was no prejudice to the defendant in the preparation of its defence. The court held that the proposed amendments did not involve a new departure or new head of claim, but rather sought to broaden the particulars of breach to encompass a slightly longer period of time when the driver reversed the bus. The court concluded that the amendments did not involve pleading a new cause of action.

The court's decision was that the proposed amendments did not amount to a new cause of action that would prejudice the defendant. The court allowed the amendments and noted that the plaintiff sought to put the defendant on notice that she will put forward further acts or omissions forming part of the res gestae of the incident, namely the manner of reversing immediately following an initial collision. The court concluded that this did not involve pleading a new cause of action.

Orders