Swietlik v Central Linen Service No. 906 of 1988 Judgment No. 3024 Number of Pages 5 Civil Procedure (1991) 56 Sasr 569 - [1992] SASC 3024

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Civil procedure - r.53.03(c) of 1987 Rules - power to amend by adding new cause of action that arises out of the same or substantially the same facts - second accident to plaintiff in same factory in somewhat similar circumstances to the first accident - whether within the rule.

HRNG ADELAIDE, 12 September 1991 #DATE 12:9:1992
Counsel for the Appellant:            Mr J.F. Costello
Solicitors for the Appellant:         Gun and Davey
Counsel for the Respondent:         Mr P.B. Spruance
  with Mr C.J. Roberts
Solicitors for the Respondent:        Paul Kirk, Roberts and Co.

ORDER
Appeal allowed.

JUDGE1 COX J This is an appeal from a Master against an order allowing a plaintiff to amend his Statement of Claim under r.53.03(c) of the 1987 Rules of Court to add an allegation of a further breach of duty and injury by the defendant. The rule provides -
    "Where an application for leave to amend is made after any
    relevant period of limitation has expired, the Court may
    nevertheless grant leave on such terms as it thinks fit: ...
     (c) to add or substitute a new cause of action, if the new cause
    of action arises out of the same or substantially the same facts as
the original cause of action." 2. The circumstances briefly are these. In April 1988 the plaintiff issued an originating Summons and Statement of Claim against the defendant alleging that he was injured at work on or about the 6th day of April 1987 when he wrenched his back while lifting a heavy bag of laundry from a trolley to a conveyor belt at the defendant's business premises where he was employed. He sued the defendant for damages on the ground that the defendant had failed to have proper regard for his health and safety and in particular failed to provide a safe system of work, failed to give him adequate instruction, failed to give him the assistance of another workman in lifting heavy bags and so on - the usual particulars in a factory accident involving heavy loads. 3. In May 1991 the plaintiff took out an interlocutory summons for leave to file and deliver an amended Statement of Claim and that is the matter that was heard by the Master. The critical paragraph that the plaintiff sought to add to his original claim would allege that in or about the month of September 1987 the plaintiff "suffered a further back injury by way of aggravation of the abovementioned injury arising out of and in the course of his employment with the defendant". The expression "abovementioned injury" is a reference to the accident or incident in April 1987 which was the subject of the original claim. The plaintiff gave in his proposed amended Statement of Claim particulars of the "circumstances of aggravation", as they were described, which said that the plaintiff was in the course of his duties lifting bags from the ground to a conveyor belt in order…

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

AGLC: Swietlik v Central Linen Service No. 906 of 1988 Judgment No. 3024 Number of Pages 5 Civil Procedure (1991) 56 Sasr 569 [1992] SASC 3024
Case: [1992] SASC 3024
Decision Date: 12 September 1992

CaseChat Overview and Summary

The case of Swietlik v Central Linen Service No. 906 of 1988 involved the plaintiff, Swietlik, seeking to amend his Statement of Claim to include a second incident of injury that occurred at the defendant's factory. The original claim related to an injury sustained by Swietlik in April 1987 while lifting a heavy bag of laundry. The plaintiff sought to add a new allegation of a further back injury that allegedly occurred in September 1987 under similar circumstances. The defendant opposed the amendment, arguing that the second incident did not arise from the same or substantially the same facts as the first. The Master had allowed the amendment, but the defendant appealed to the Supreme Court of South Australia.

The legal issues in the case centred on the interpretation and application of rule 53.03(c) of the 1987 Rules of Court, which governs the amendment of pleadings to include new causes of action that arise from the same or substantially the same facts as the original claim. The central questions were whether the proposed amendment constituted a new cause of action and whether this new cause of action arose from the same or substantially the same facts as the original claim.

The Court held that the plaintiff's proposed amendment did indeed constitute a new cause of action, as it was based on a different factual basis than the original claim. However, the Court found that the second incident did not arise from the same or substantially the same facts as the original incident. The Court emphasised that for an amendment to be permissible under rule 53.03(c), the new cause of action must arise from facts that are closely related to the original facts, rather than merely being similar incidents. The Court concluded that the second incident, although similar, involved different factual circumstances and thus did not meet the threshold required by the rule. Consequently, the Court allowed the appeal and set aside the Master's order permitting the amendment.

Orders