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 to empty the contents on to the belt, and when he did so he felt severe pain in his lower back which aggravated his already damaged back. He gave further details of the manner in which he performed this particular task, and also gave particulars of the defendant's negligence and breach of contract and breach of statutory duty in requiring him to work in the manner and under the conditions described in the proposed pleading. The defendant resisted the application to amend, arguing that it was not a new cause of action and therefore not within par.(c) of the amendment rule and alternatively, if it was, that the new cause of action did not arise out of the same or substantially the same facts as the first. The defendant also argued that it would be prejudiced by the amendment so that the Master should in any event, in the exercise of his discretion, refuse to allow the amendment to be made. 4. The Master observed that he had not found the application an easy one to decide. He referred to the Full Court's decision in Karasaridis v Kastoria Fur Products (1984) 37 SASR 345 and noted that the members of the Court were not agreed upon the interpretation of order 28, r.1, the prototype in relevant respects to the present r.53.03, and were also disagreed about its application to the facts of that particular case. The Master regarded the question whether the present plaintiff's application referred to a new cause of action as "a finely balanced one", but held in the end that the proposed amendment did come within the rule. He also described as finely balanced the question whether the new happening, if I can so describe it, in September 1987 or thereabouts, could be said to arise out of the same or substantially the same facts as the happening the previous April. He found, in the end, in favour of the plaintiff on that question also. He considered the matter of prejudice - and the material before him has been described now with particularity in Mr Calligouros' affidavit of 11 September 1991- and, while (to use the Master's words) he was "not unmoved by the defendant's submissions on that subject" (it was claimed that it is now too late for the defendant to make any useful investigation of the September allegations), he thought that justice required that, notwithstanding some degree of prejudice, the plaintiff should be permitted to amend. Against that decision the defendant has appealed. 5. Mr Costello, for the defendant, argued that this was not a new cause of action. He relied upon the judgement of King CJ in Karasiridis, with its reference to "a new cause of action in the sense of a new legal characterization of the facts in respect of which relief has already been claimed" (37 SASR at 351). Certainly the present is not such a case; the supplementary claim by the plaintiff is not based upon the facts already pleaded. The other members of the Court in Karasiridis did not attempt to define "new cause of action" in order 28, r.5. The term "cause of action" can have different shades of meaning in different contexts. It seems to me that there is a good deal to be said for a liberal and non-technical interpretation of the expression "new cause of action" as it appears in par.(c) of r. 53.03. Certainly I would not confine it a claim that does no more than interpret the original allegations of fact in a different legal way or that merely fastens upon different factual or legal consequences. The plaintiff's proposed amendment attempts to set up a new claim on a different factual basis from the first. I am inclined, therefore, to the Master's view that this would be a new cause of action. However, I do not need to pronounce finally on that, because I think the defendant must succeed on its second argument, that the proposed amendment would plead a cause of action that did not arise out of the same or substantially the same facts as the alleged breach of duty about April 1987. 6. The test for this part of par.(c) is tolerably well settled. In the words of Cross LJ in Brickfield Properties Limited v Newton (1971) 1 WLR 862, at 880 -
    "It is no objection to an amendment under Order 20 Rule 5(5)
    that some of the facts out of which the new cause of action arises
    are peculiar to it, and that some of the facts out of which the old
    cause of action arises are peculiar to it. It is enough if the
    overlap is so great that the new cause of action can fairly be said
    to arise out of substantially the same facts as the old cause of
    action." 7. Of course, it is one thing to state the test, it is another thing to apply it correctly in any given instance. To start with, one must identify the respective sets of "facts" which are to be compared, and this necessarily involves a selection. Obviously, there will be borderline cases under par.(c) and room for disagreement. 8. I suppose as clear a case as any of an adequate overlap, and no significant difference in any relevant respects between the two causes of action, is the decision of von Doussa J in Varcarella v McNicol (1986) 13 LSJS
128. Brickfield itself is another instance of a close correspondence between the two sets of facts alleged, but with the emphasis upon a different aspect of them in order to provide a second cause of action. 9. Another example would be that of a professional negligence case against a solicitor. The first claim, let it be supposed, asserts the relationship between the plaintiff client and the defendant solicitor and goes on to allege circumstances which demonstrate a breach of duty in negligence against the defendant. Later, the plaintiff decides that it would be advisable to add a claim in contract as well. That would be a clear instance, at least on one view of what a new cause of action is under par.(c), of a second claim arising out of the same or substantially the same facts as the first. 10. Karasaridis and a matter that I had to consider earlier this year, Trepic v ROH Industries Proprietary Limited, 5 June 1991, are cases of a slightly different kind. In each of them the plaintiff originally selected a particular occasion for his cause of action, and then sought to expand the relevant period and circumstances in later asserting a second cause of action. There was much in common between the circumstances alleged in each instance. The main difference was with respect to the time factor in Karasaridis, and in the recent case with respect to both time and another, albeit different, alleged wrongful action on the part of the defendant that had the effect of exacerbating the situation. 11. At the other end of the spectrum, however, would be the case of a mere repetition of a breach of duty by one person against another with little or nothing else in common between the two incidents. If, for instance, a customer of a supermarket were to slip on the supermarket floor, and allege that the proprietor was negligent in failing to keep the floor clear of some hazardous article, I should think it very doubtful whether, without more (and that phrase is important), the plaintiff could get leave to amend under r.53.03 by adding a claim that alleged another accident in the same supermarket 12 months earlier, say, when he slipped on some different article in a different part of the store, even though in a general sense the occupier's duty of care to the customer was the same on each occasion. More would be needed than the coincidence of a second accident similar to the first. The new cause of action has to arise out of the same or substantially the same facts, and that is not the same as simply being a similar, even identical, happening to the first. 12. And that, I think, is the difficulty that faces the plaintiff in this case. His proposed amendment speaks of an "aggravation" of the original injury, but he is really setting up a fresh accident or incident that occurred, apparently, in a different section of the factory and under somewhat different unloading conditions from the first. The two causes of action have this in common, that both allege that the plaintiff was injured by being required to lift or otherwise manhandle laundry bags in circumstances that indicate a failure by the defendant to have proper regard for the plaintiff's safety. The particulars given of the defendant's breach of duty or breach of contract are, in many respects, much the same in each case. However the second incident was a different happening on a different occasion from the first, and seems to rest upon a fundamentally different set of facts, notwithstanding that the master and servant were the same in each case and that there was a degree of similarity between the two incidents. 13. It is in the end, as these cases necessarily are, a matter of fact and degree. I have come to the conclusion that this proposed amendment does not fall within the range of par.(c). In my opinion, the learned Master should have refused the plaintiff's application to amend. The appeal must therefore be allowed.