Nardelli v Woolworths Limited - [2011] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NARDELLI -v- WOOLWORTHS LIMITED [2011] WADC 102

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 21 JUNE 2011

DELIVERED : 29 JUNE 2011

FILE NO/S: CIV 1972 of 2010

BETWEEN: LIDA NARDELLI
Plaintiff
AND
WOOLWORTHS LIMITED
First Defendant
CENTRO (CPL) LIMITED
Second Defendant

Catchwords:

Practice and procedure - Leave to amend writ

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr K K Tang
First Defendant             :     Mr G Hancy
Second Defendant         :     Not applicable

Solicitors:

Plaintiff:     GV Lawyers
First Defendant             :     Dibbs Barker Gosling
Second Defendant         :     SRB Legal

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

ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Cottee v Franklins [1995] QCA 524; [1997] 1 Qd R 469
Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Hughes v St Barbara Mines Ltd [No 3] [2008] WASC 220
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
Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168

PRINCIPAL REGISTRAR GETHING: By application dated 8 April 2011 the plaintiff seeks to amend her writ to add a cause of action in contract against the first defendant. The first defendant opposes the grant of leave on the basis that the amendments go beyond what is permissible by way of amendment to the indorsement of claim in a writ.
The plaintiff filed two affidavits in support of her application by her solicitor Mr Tang, one dated 4 May 2011 and one dated 21 June 2011.
The existing indorsement is in the following terms:
The plaintiff claims damages against the First Defendant and Second Defendant arising from personal injuries sustained by the Plaintiff on 15 August 2007 at the Second Defendant's premises situated at Centro Galleria Shopping Centre, Collier Road, Morley in the State of Western Australia as a consequence of the negligence and/or breach of statutory duty pursuant to the Occupiers' Liability Act 1985 on the part of the First Defendant and/or the Second Defendant.
In the statement of claim filed 17 November 2010 the plaintiff alleges that she was injured when a shopping trolley supplied by the first defendant full of purchases made at one of the first defendant's stores toppled over on a travelator. This caused the plaintiff to lose her balance, fall and sustain injuries.
The second defendant was the occupier of the shopping centre at which the accident occurred. The second defendant does not oppose the amendments sought to be made.
The proposed indorsement is as follows:
The plaintiff claims damages against the first Defendant and Second Defendant arising from personal injuries sustained by the Plaintiff on 15 August 2007 at the Second Defendant's premises situated at Centro Galleria Shopping Centre, Collier Road, Morley in the State of Western Australia as a consequence of the First Defendant's negligence and or/or breach of contract and/or the Second Defendant's negligence and/or breach of statutory duty pursuant to the Occupiers' Liability Act 1985. ~~on the part of the First Defendant and/or the Second Defendant.~~
The plaintiff in her submissions states that the cause of action that she will raise in by way of amended statement of claim is that the first defendant breached a contract of bailment in respect of the supply of the trolley by the first defendant. There is authority for the proposition that the supply of a shopping trolley is a form of unilateral bailment contract and that in such a contract there is an implied term that the chattel the subject of the bailment is reasonably fit for its contemplated purpose: Cottee v Franklins [1995] QCA 524; [1997] 1 Qd R 469; Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633.
The issue for determination is whether the amendment to the writ so as to provide the foundation of this case of action is permissible. The issue has greater than usual significance as the accident occurred on 15 August 2007. The limitation period within which the plaintiff could have commenced a fresh action in contract against the first defendant seeking damages relating to a personal injury has thus expired: Limitation Act 2005 (WA) s 14(1).

Positions of the parties

The plaintiff asserts that the proposed claim in contract arises substantially out of the same facts as set out in the current indorsement. Those facts are:
(a)it is a claim arising from personal injuries;
(b)the injuries were sustained on 15 August 2007; and
(c) the injuries were sustained on the premises of the second defendant.
The proposed cause of action in contract is thus said to arise out of the same three facts.
Mr Tang in his affidavit of 4 May 2011 deposes that the cause of action to be pleaded has four further elements of factual overlap with the pleaded claim in negligence:
(a) the supply of a trolley by the first defendant to the plaintiff;
(b)the use by the plaintiff of the trolley to hold shopping purchased at the first defendant's shops at the premises in question;
(c)an alleged defect in the trolley; and
(d)an allegation that as a consequence of the defective trolley, an accident occurred and the plaintiff sustained injuries.
The plaintiff submitted that it was not necessary for all the facts necessary to establish the cause of action to be in the indorsement.
The defendant's position takes its context from the fact that the limitation period for a claim in contract has expired. This means that the application to amend is pursuant to both Rules of the Supreme Court 1971 (WA) (RSC) O 21 r 5(2) and r 5(5). In order for the amendment to be consistent with the Limitation Act all the key facts necessary to establish the cause of action must be found in the indorsement. The indorsement must state enough to put the facts in a recognisable legal framework showing how the claim arises and the relationship between the claim and the loss: ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235 (ABB (No 1)) [14].
In the present case, the defendant's case is that the recognisable legal framework is personal injuries as a consequence of negligence or occupier's liability. The key fact missing is the existence of the facts said to give rise to a contract between the plaintiff and the first defendant, namely, some reference to the supply and use of a trolley by the first defendant.

Relevant law

The indorsement on a statement of claim is to comprise 'a concise statement of the nature of the claim made, and of the relief or remedy required in the action': RSC O 6 r 1(1). The circumstances in which an indorsement may be amended are set out in RSC O 21 r 5, of which r 5(1), r 5(2) and r 5(5) are relevant for present purposes:
5. Amendment of writ or pleading with leave
(1)Subject to ‑
(a)Order 18 Rules 6, 7 and 8;
(b)Order 20 Rule 19(2) to (5); and
(c)the following provisions of this Rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.
…
(5)An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute 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 in the action by the party applying for leave to make the amendment.
The principles relating to the application of RSC O 6 r 1 and O 21 r 5 have been dealt with on a number of occasions by the appellate courts. They may be summarised as follows:
(a)an indorsement is not intended to be in the nature of a pleading but only a summary of the nature of the claim: Renowden v McMullin (1970) 123 CLR 584, 595; ABB (No1) [9]; Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168 [16];
(b)RSC O 6 r 1(1) does not require a plaintiff to plead in the indorsement all of the material facts giving rise to a cause of action: Tristram [22]; ABB (No 1) [25] - [26];
(c)an indorsement is not a pleading and it should not be read narrowly: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 239; Tristram [26];
(d)an indorsement provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action, and does so by enabling the defendant to know, with finality, what fact or facts are said to give rise to the action against him: ABB (No 1) [10]; Tristram [16]; Morgan v Banning (1999) 20 WAR 474, 485;
(e)provided a writ is not a nullity, amendments can be made to an indorsement, even a defective indorsement, on the writ if the terms of the writ are wide enough to encompass the proposed amendments as they particularise, clarify, re-label, add to, expand or modify a cause of action already instituted: Morgan (486); ABB (No 1) [9]; Tristram [16];
(f)the reference to a 'cause of action' in O 21 r 5 is to 'the basket of facts which give rise to the right to approach the court for relief, rather than as the description of the right to sue by reference to the old forms of action': Morgan v Banning (476), also (484);
(g)whether or not the cause of action in question can be said to arise out of the same, or substantially the same, facts as an existing cause of action is essentially a matter of impression based on the degree of overlap: Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431, 434; Hughes v St Barbara Mines Ltd [No 3] [2008] WASC 220 [111].
The decisions obviously are very fact specific. It is nonetheless instructive to consider a few in detail. A convenient starting point in the analysis is the decision in Dye as that is a clear case in which the amendment went beyond the facts then set out in the indorsement on the writ. In that case, the appellant (plaintiff) was employed to drive a truck on mine roads. In the writ, the plaintiff claimed damages for personal injuries suffered as a result of the negligence, breach of statutory duty and contract by the defendant on or about 12 October 1990. The appellant sought to amend his statement of claim to allege that the roads and vehicle were of such poor construction that the vehicle was subject to violent physical shocks which ultimately led to him suffering a back injury. The specific amendment sought was:
Throughout the period between January 1990 and 12 October 1990 the [appellant] drove [the vehicle] over --- mine roads ---. Throughout that period the [appellant] drove the vehicle over the mine roads 5 days per week, 6.5 hours per day. Over the whole of the period while driving the vehicle over the mine roads the [appellant] was subject to jolting which caused the personal injuries [complained of].
The amendment was not allowed by a District Court registrar, a decision affirmed by a District Court judge. The Full Court dismissed an appeal. The decision of the Full Court, delivered by Owen J, was that the cause of action sought to be introduced did not arise out of substantially the same facts as those alleged in the original statement of claim (436). His Honour also commented that where the amendment seeks to add a new cause of action that is statute barred, O 21 r 5(5) must be complied with and that there is no general and further discretion to permit the amendment pursuant to O 21 r 5(1) (439).
At the other end of the spectrum, in Stone James, the Full Court allowed a statement of claim in a professional negligence case to include a claim in negligence when the indorsement was limited to a claim in contract. The initial indorsement in the writ issued on 1 September 1982 was for a claim in negligence:
The plaintiff's claim against the defendant is for damages arising from the negligence of the defendant in advising the plaintiff with respect to a deed dated 20^th February 1976, made between the plaintiff and one Donald Hendley.
The indorsement was amended on 27 October 1982 to read:
The plaintiff's claim against the defendant is for damages arising from breach of contract between the plaintiff and the defendant by which the defendant agreed to advise the plaintiff and to prepare a licence agreement dated 20^th February 1979.
The plaintiff subsequently sought leave to amend the statement of claim to allege a breach of contract and negligence in the giving of advice in November 1976 which led to the licence in 1979. The amendment was allowed and the defendant appealed.
The Full Court held that the amendment was within the terms of the general indorsement, as amended. The members of the Full Court further held that the amendment fell within O 21 r 5(5). Burt CJ was of the view that there was one retainer agreement out of which both causes of action arose (240 - 241). On the issue of discretion, his Honour placed weight on the fact that allowing the amendment would 'enable the litigation to be fought out on the true facts' (241). Burt CJ further allowed an amendment based on negligence arising out of the retainer agreement as falling within O 21 r 5(5) (241 - 242). Brinsden J agreed with Burt CJ (242).
Franklyn J delivered reasons to similar effect, in particular holding that 'though the claim in negligence falls outside the wording of the indorsement it is nevertheless authorised expressly by the provisions of O 20 r 2' (248). This raises the interesting point of whether the plaintiff in the present case needed to amend the writ at all in order to plead the claim in contract.
In Morgan, the Full Court affirmed a decision of a Master striking out a defective indorsement and allowing an amendment which arose 'substantially out of the same facts alluded to in the original indorsement' (478 - 479, 487). The original defective indorsement was it the following terms:
The Plaintiff's claim:
(a)against the Defendant:
damages for inducing the Plaintiffs to enter into two contracts of guarantee or guarantors, firstly, with the NMRSB Ltd CAN 007 394 738 and, secondly, with A & T Holdings Pty Ltd.
(b)An order that the Defendants pay to the Plaintiffs damages.
(c)An order that the Defendants pay to the Plaintiffs penalty damages.
(d)An order that the Defendants pay to the Plaintiffs interest on such damages.
(e)An order that the Defendants do indemnify the Plaintiffs in respect of any sums which shall have been found owing by the Plaintiffs to the NMRSB Ltd and to A & T Holdings Pty Ltd.
(f)An order that the Defendants do indemnify the Plaintiffs in respect to any income and/or capital gains tax which may be levied against the Plaintiffs in respect to any judgment obtained by the Plaintiffs.
(g)An order that the Defendants do pay to the Plaintiffs costs.
The amended sought before the Master read:
The Plaintiffs claim damages for negligent mis-statement and/or deceit and/or breach of duty by the Defendant inducing the Plaintiffs to enter into two contracts of guarantee as guarantors, firstly with NMRSB Ltd CAN 007 394 738 and, secondly, with A & T Holdings Pty Ltd.
The Master allowed the amendment but backdated it to the date of the order permitting the amendment. This then allowed the plaintiff to plead a limitations defence.
On appeal, the Full Court allowed the amendment, but held that it took effect from the date of issue of the writ.
Wheeler J delivered the leading decision. Her Honour went into some detail as to the interrelationship between the limitation legislation and the RSC. Her Honour held that if the amendment fell within O 21 r 5(5) then no question arises as to the court lacking power to make the amendment due to an inconsistency with limitation legislation. Her Honour used the term 'cause of action' as referring to 'a factual situation which will entitle a person to approach the court for relief' (484).
The nature of an indorsement was also considered in ABB (No 1). In that case, the indorsement of claim on the writ provided:
The plaintiffs' claim is for damages:
1.pursuant to section 82(1) of the Trade Practices Act (Commonwealth) (the 'Act') for breach by the defendant of section 52 of the Act; and
2.for negligent misstatement;
with respect to representations made by the defendant between 1 July 1996 and 28 February 1997 in connection with a contract between the defendant and Monaveen Pty Ltd for the performance of civil engineering services and works.
The defendant sought to strike out the indorsement on the basis that it did not comply with RSC O 6 r 1 and O 20 r 19(1)(a). It failed at first instance, but succeeded on appeal. In the Full Court, McLure J (with whom the other member of the Court, Wheeler J, agreed), observed the following about the impact of indorsements on limitation periods ([9]):
Secondly, an indorsement in a writ has important limitation ramifications. The Limitation Act 1935 is concerned with the date of issue of the writ. Provided a writ is not a nullity, amendments can be made to a defective indorsement on the writ if the terms of the writ are wide enough to encompass the proposed amendments as they particularise, clarify or expand a cause of action already instituted: Morgan v Banning (1999) 20 WAR 474; O 21 r 5(5) SCR. An open ended or otherwise defective indorsement may be relied on to the advantage of a plaintiff who seeks to amend its writ and then its statement of claim after the expiry of the limitation provided.
McLure J identified the deficiencies in the following terms ([12] ‑ [15]):
In this case the indorsement identifies the causes of action (breach of s 52 of the Trade Practices Act and the tort of negligent misstatement) and the relief (damages). That information on its own is insufficient. The balance of the indorsement refers to representations made by the defendant between 1 July 1996 and 28 February 1997 in connection with a contract between the defendant and Monaveen Pty Ltd for the performance of civil engineering services and works.
In my opinion, the respondents' indorsement of claim does not comply with O 6 r 1 or O 20 r 19(1) of the SCR. In particular, there is no information in the indorsement which links the respondents or either of them to:
(a)receipt of or reliance on or even knowledge of the representations;
(b)the contract between the applicant and Monaveen Pty Ltd which is said to be the subject matter of the representation;
(c)the damage arising from the representations.
The indorsement does not put the facts in a recognisable legal framework showing how the respondents' claims arise and the relationship between the claims and the loss. Without further information the reader is left to speculate as to how it is the respondents have a claim for damages against the applicant for representations made by the applicant about a contract between the applicant and a third party. There are a number of possible permutations and links which could theoretically give rise to a claim by the respondents against the applicant for breach of the pleaded causes of action. However, the respondents must state those links so they cannot subsequently be the beneficiary of such an open-ended plea in the event a limitation issue arises.
In order to make the links, the indorsement should identify to whom the representations were made and how representations in connection with a contract between the applicant and a third party affected the respondents (whether it be by way of providing personal guarantees or advancing loan funds to Monaveen Pty Ltd or otherwise) resulting in damage to the respondents.

The court struck out the indorsement and granted the plaintiff (respondent) leave to apply to amend the indorsement.
The plaintiff took up the invitation to apply to amend the indorsement. In a subsequent decision, the same court allowed the application to amend: ABB Service Pty Ltd v Hetherington [2001] WASCA 417 (ABB (No 2)). In doing so, McLure J (with whom Wheeler J again agreed) commented ([25] ‑ [27]):
The applicant says the proposed amendments add new causes of action, rather than particularise, clarify or expand the existing pleading. The applicant's submission, as I understand it, is to the effect that as 'cause of action' in O 21 r 5(5) means the factual situation which entitles a person to approach the Court, then as a result of the inadequacies in the current indorsement no cause of action in that sense is pleaded and any attempt to fill in factual gaps gives rise to a new cause of action which does not (alternatively, could not be shown to) have a sufficient factual overlap for the purposes of the subrule. This submission fails to recognise the differences between an indorsement of claim and a statement of claim.
Order 6 r 1(1) of the SCR does not require a plaintiff to plead a cause of action in the sense in which that phrase is used in O 21 r 5(5) of the SCR. The omission of material facts, per se, does not render an indorsement defective. It is to be expected that an indorsement will cover a narrower factual field and be of a greater level of generality than a statement of claim. As a result, it may be more difficult to determine whether a proposed amendment raises a new cause of action to which O 21 r 5(5) applies. In this case, the current indorsement was defective partly because of the limitation advantages flowing from its unacceptable generality.
However, the proposed amendments clearly fall within the parameters or framework of the current indorsement. In my assessment the current indorsement is wide enough to encompass the proposed amendments which clarify, expand and particularise the pleaded claims. Accordingly, I conclude that the proposed amendment does not add a new cause of action and thus no limitation issue under O 21 r 5(5) arises.

Determination

In the present case, the claim in negligence against the first defendant has five elements to its factual foundation:
(a)it is a claim arising from personal injuries;
(b)the injuries were sustained on 15 August 2007;
(c)the injuries were sustained on the premises of the second defendant;
(d)there was a sufficient (but unspecified) relationship between the plaintiff and the first defendant to give rise to a duty of care; and
(e)the duty owed by the first defendant was (again in some unspecified way) breached so as to cause the plaintiff's personal injuries.
This is the basket of facts which give rise to the right to approach the court for relief.
The claim in contract has the same elements in pars (a) to (c) above. To use the words of McLure J in ABB (No 1), the present indorsement is 'open ended' ([9]) as to the elements in pars (d) and (e). The first defendant has not to date taken issue with the adequacy of the present indorsement. This application falls to be determined on the basis of the unspecified relationship between the plaintiff and the first defendant and the unspecified breach of a duty arising out of that relationship.
In my view, the indorsement in the current writ is wide enough to encompass the proposed amendments as they re-label, add to, expand or modify a cause of action already instituted: Morgan v Banning (486); ABB (No 1) [9]; Tristram [16]. The claim in contract arises out of the same basket of facts (to the extent that they are specified) as the claim in negligence. Or put slightly differently, the degree of overlap between the current and proposed indorsement is sufficient for me to find that claim in contract arises out of the same, or substantially the same, facts as the existing cause of action, the term cause of action being used in the factual sense discussed in these decisions set out in [16] above. The first defendant not having challenged the open ended nature of the indorsement, the plaintiff is able to take advantage of it to seek the amendment proposed.
The scope of the amendment is much narrower than the amendment sought to be made in Dye. It is in the nature of a different legal characterisation of the accident and injuries in the existing indorsement. The amendment arises from the same factual event as in the current indorsement, not from a different one as in Dye. To grant the amendment is consistent with the reasoning in Stone v James where the court focused on the factual events and not the characterisations of contract or negligence. The amendment is similar in nature to that in Morgan where amendment set out with some precision the technical legal causes of action claimed arising out of the factual event set out in the indorsement.
The first defendant argued that because the following facts were not included in the indorsement, the claim in contract could not fall within the facts set out in the indorsement:
(a)that a purchase was made from the first defendant;
(b)that a contract was made or is relevant;
(c)that a trolley was supplied by the first defendant;
(d)that the injury was connected with the supply and use of a trolley after purchasing goods from the first defendant.
However, the relevant point is that on the few facts that are pleaded, the claim in contract arises from them. There are no facts inconsistent with these facts in the indorsement. It is a different question as to whether the proposed amendments to add a claim in contract comply with O 6 r 1. I return to that question shortly.
The correctness of this decision is supported from two other perspectives. The first is that, as I have noted, the claim in contract proposed to be pleaded has four further elements of factual overlap with the existing claim in negligence:
(a)the supply of a trolley by the first defendant to the plaintiff;
(b)the use by the plaintiff of the trolley to hold shopping purchased at the first defendant's shops at the premises in question;
(c)an alleged defect in the trolley; and
(d)an allegation that as a consequence of the defective trolley, an accident occurred and the plaintiff sustained injuries.
The way in which claim in contract is to be pleaded reinforces the finding that it arises out of the same, or substantially the same, facts as the existing cause of action (again stressing that the term cause of action is being used in the factual sense discussed in these decisions set out in [16] above).
In making this observation, I accept the submission made by counsel for the defendant that the question of whether an amendment to a writ falls within O 21 r 5(5) has to be determined from the terms of both amendments alone, without regard to other material. However, it seems to me that in exercising my discretion as to whether to allow the proposed amendment, jurisdiction to do so having been established, I should look to balance the risks of an injustice between the parties. Given the width of that discretion, I am entitled to look behind the terms of the indorsement to satisfy myself that due to the 'open' nature of the indorsement, the plaintiff is not seeking to achieve an outcome that would be an injustice to the first defendant.
Looking at the way in which the claim in contract is proposed to be pleaded, I do not consider that the plaintiff is seeking to take advantage of the open ended nature of her indorsement to perpetrate an injustice on the first defendant.
Rather, in the present case, the interests of justice lie in all the claims arising out of the plaintiff's accident 'on 15 August 2007 at the Second Defendant's premises situated at Centro Galleria Shopping Centre' being heard and determined on their merits, provide that can be done in a manner compliant with the RSC and District Court Rules 2005 (WA). As I have found the proposed amendment falls within O 21 r 5(5), as a matter of discretion, it ought to be allowed.
The second perspective from which the correctness of my decision can be supported is if one considers what the position would have been had the first defendant taken the point that the existing indorsement was so open ended as to be defective.
What is apparent from the decision in ABB (No 1) is that the current indorsement is defective as regards the first defendant. It does not 'put the facts in a recognisable legal framework showing how the [plaintiff's] claims arise and the relationship between the claims and the loss': ABB (No 1) [14]. As noted there are two element of the cause of action in the indorsement that are unspecified, being:
(a)the nature of the relationship between the plaintiff and the first defendant which gave rise to a duty of care;
(b)the way in which the duty owed by the first defendant was breached so as to cause the plaintiff's personal injuries.
The key facts missing are that the accident arose out of the use of a shopping trolley provided by the first defendant to the plaintiff as a customer of its business. The position of the first defendant can be contrasted to that of the second defendant. It is clear that the liability of the second defendant arises out of the fact that the accident occurred on premises which it occupied.
However, an amendment to the current indorsement to add the fact that the accident arose out of the use of a shopping trolley provided by the first defendant to the plaintiff as a customer of its business would particularise, clarify, re-label, add to, expand or modify a cause of action already instituted.
It follows from these observations that, on the materials currently before me, and as a preliminary view:
(a)had the first defendant applied (as was the case in ABB (No 1)) to strike out the indorsement pursuant to O 6 r 1, I would have acceded to the application; and
(b)had the plaintiff, either independently or as a consequence of a finding in (a), applied to amend the indorsement the add the fact that the accident arose out of the use of a shopping trolley provided by the first defendant to the plaintiff as a customer of its business, I would have also acceded to that application.
Again as a preliminary view, if the present application had been made on the basis of the indorsement amended as set out in [49], then I would have found that the effect of the amendment was to again particularise, clarify, re‑label, add to, expand or modify a cause of action already instituted. It would have made it clearer that the amendment did not add a new factual situation which would have entitled to the plaintiff to have approached the court for relief: Morgan (484).
In other words, had the plaintiff been forced to amend the indorsement so as to make it compliant with O 6 r 1, the amended indorsement would, in all likelihood, have strengthened the argument that the amendment currently proposed was within O 21 r 5(5).

Orders

Having identified that the current indorsement appears on its face to be defective, it seems to me that it is appropriate that the deficiency is rectified in the course of dealing with the proposed amendments. I should not grant leave to make an amendment which, although permissible at one level (O 21 r 5(2) and r 5(5)) is impermissible at another (O 6 r 1). This outcome will limit any injustice to the first defendant as it will in effect compel the plaintiff to plead the claim in contract as it has stated it proposes to do.
I will hear counsel on this issue and on the issue of costs. In order to facilitate a meaningful discussion on the issue, I direct the plaintiff to provide a minute of proposed amended indorsement which addresses the issues identified in [50] in addition to the amendment currently proposed.