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

1. 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."

1. 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.

1. 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 of the defendant's servant or agent.

PARTICULARS OF NEGLIGENCE

(The same additional particulars sought to be added under paragraph 5 were repeated).

8As a consequence of the said collisions the infant plaintiff suffered damages in the form of loss, expense and personal injuries."

1. The infant plaintiff was at the time of the collision or collisions six years of age and received, it is said, significant injuries and has little recall of the incident. A teenage bystander gave a statement to the police which included this assertion:–

   "I saw a young female child come out of the school yard on a push bike and ride straight across the path of the bus. I do not think that the driver had any chance to stop or avoid hitting the child.

   The bus hit the girl and threw her onto the road. It stopped fairly quickly and then reversed. As it reversed it took the bike back with it."

   The defendant's driver likewise made a statement to police saying in part:–

   "She commenced to cross at the very end of the pedestrian crossing. I immediately braked but hit the girl. She hit the right hand side of the bus, but I don't know exactly where.

   After stopping the bus I couldn't see the girl so I reversed back up the street a short distance."

2. Copies of both statements have been in the possession of the plaintiff's advisers since December 1981. The certificate of readiness was signed by the plaintiff's then solicitors on the 8 September 1986, but in June 1988 her present solicitors were instructed and they have advised that leave be sought to make the proposed amendments, perceiving that the court may find that two collisions occurred and that some if not all of the plaintiff's injuries may have followed the second collision.

1. The guiding principles governing the exercise of a discretion to grant leave to amend pleadings were gathered together by Nettlefold J in Robertson v Hobart Police and Citizens Youth Club [1982] Tas R 102 at pp106 and 107 where he cited the following passages:–

"'Now, I think it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace .... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right': Cropper v Smith (1884) 26 Ch D 700, at p710, per Bowen LJ.

'My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he has done some injury to his opponent which could not be compensated for by costs or otherwise': Tildesley v Harper (1878) 10 Ch D 393, at p396, per Bramwell LJ

'... however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs': Clarapede & Co v Commercial Union Association (1883) 32 WR 262, at p263, per Brett MR"

1. In the present case there is no question of prejudice to the respondent in the preparation of its defence. The fact of reversing the bus was recorded in reports from the driver to its employer on the day after the accident and to the Motor Accidents Insurance Board a few days later. These documents were revealed to the plaintiff's present advisers in December 1988, discovery not having been sought earlier by her original solicitors. The police statements would in any event have been available to the respondent Trust, although it seems to be common ground that it has been aware of their contents at all material times. However it is submitted that the respondent is prejudiced by the introduction of what amounts to a new cause of action which would, but for the amendment, be barred by the Limitations Statutes.

1. In Welden v Neal (1887) 19 QBD 394 Lord Esher MR said at p395:–

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of 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 power to allow such an amendment, but certainly as a general rule it will not do so."

This rule of practice has been recognised in a host of cases, the crucial question in most cases, as in this, being whether the proposed amendment sets up a new cause of action. Two cases suffice to illustrate the problem. In Marshall v London Passenger Transport Board [1936] 3 All ER 83 the plaintiff issued a writ claiming damages for injury sustained in a collision with a tram car. The initial claim set up a case of negligent driving by the defendant's servant, but the plaintiff later sought to amend to set up a case of neglect to keep the tram track and highway in repair. At p88 Lord Wright MR said:–

"In my view, therefore, the proposed amendment would, if allowed, have set up a new cause of action involving quite new considerations, quite new sets of facts, and quite new causes of damage and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries. No doubt in cases of negligence injury is the gist of the action, but it is only one element. The cause of action involved duty, breach and damage, and the proposed amendment would have set up an entirely different duty and an entirely different breach of that duty. The one remaining feature of damage, it may be, would have been the same."

1. In Black v City of South Melbourne (1964) 38 ALJR 309 the plaintiff, who was injured when diving in enclosed sea baths of which the defendant corporation was occupier, framed his statement of claim on the basis that the defendant had failed in its duty to prevent damage from an unusual danger, namely a submerged piece of timber of which it was or ought to have been aware. On the trial leave was granted to allege failure of the duty to warn him of the unusual danger constituted by the combination of the depth of water and the platform from which the plaintiff dived. Barwick CJ said of the allowance of the amendments (at p310):–

"It seems to me quite plain that, throughout, the plaintiff's cause of action did not change, though his particularizing of the facts by which he proposed to sustain that cause of action did significantly alter. It would, in my opinion, have been an improper exercise of judicial discretion for the trial judge in this case to have refused the plaintiff the opportunity to present his proofs of that cause of action differently to the manner in which he had originally proposed. Questions of surprise and disadvantage because of a change of course in proof can almost always be met by adjournment and appropriate orders as to costs. It would certainly have been so in this case. As there was, in my opinion, no new cause of action involved in the changed particulars, no question of the statute of limitations fell for consideration."

1. In Patterson v Richards [1963] VR 179 at 188 Sholl J said that in his view what was forbidden was the "setting up of such new 'ultimate' or 'pleading' facts – whether with or without a new or different allegation of legal consequences, or a new or different legal characterisation – as to involve in real substance 'a new departure, a new head of claim, a new cause of action'".

1. In the present case the plaintiff alleges she suffered injuries at a specific time and place due to the negligence of the defendant's servant in the manner in which he drove a bus which collided with her. The amendments she seeks to make allege no different duty and no different injurious consequence. The particulars of breach are broadened to encompass a slightly longer period of time when the driver reversed the bus. I do not regard these amendments as involving a new departure or new head of claim. Although expressed in a slightly different context the following words of Windeyer J are in my view relevant:–

"The function of particulars in an action for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be put forward as constituting it." (Anchor Products Ltd v Hedges (1966) 40 ALJR 330 at 332).

1. Here the cause of action has been defined in the original statement of claim. The negligence complained of lies in the manner in which the defendant's servant drove the bus at the time and place alleged. The plaintiff seeks 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. In my view this does not involve pleading a new cause of action.

1. The amendments will be allowed.