Allonnor P/L v Doran [1998] QCA 372

4 The material facts pleaded by the plaintiff are or include the following. First, that the plaintiff was employed by the defendant as a truck driver and delivery man. That gave rise in law to a duty on the part of the defendant to take care for the safety of the plaintiff, which is expressed in various ways in para.2 of the statement of claim. Then, secondly, it is alleged in para.4 that there was a breach of that duty. Particulars are given, which may be adequately summarised by saying that the defendant failed to provide appropriate mechanical or other assistance to the plaintiff in lifting objects. Thirdly, it is, in the combination of facts in paras. 3 and 4, alleged that, as a result of that breach, the plaintiff sustained personal injury loss and damage.

5 In the statement of claim as originally pleaded, the injury was said to have arisen on or about 6 January 1992 while the plaintiff was delivering a table and chairs to a customer at Ferny Grove. The injury is in para.6 said to have been sustained to the plaintiff's (a) back and (b) neck. The amendment seeks to add as a cause of that injury a second such activity on the same day arising from lifting a garden chair in the course of delivering it to a customer at The Grange, which is alleged in para.6(c) to have resulted in an injury to the plaintiff's left shoulder.

6 It may perhaps be doubted whether what was sought to be added by way of amendment really amounts to a new cause of action. Apart from that, however, it is my opinion that any such new cause of action arose out of "substantially the same facts" as the cause of action in respect of which relief had already been claimed. Most of the facts giving rise to the duty were the same. It was the same employment, and the parties were the same. The breach alleged was the same; that is to say, lifting without adequate assistance. All that differed were the particular injury sustained to the plaintiff's shoulder, rather than to his back and neck, and the object lifted, which is alleged to have been a chair rather than a table and chairs.

7 The operative or relevant incident alleged in the amendment is different from the incident alleged in the original statement of claim; but it appears to be accepted by the defendant that it occurred later on the same day, i.e. 6 January 1992, at the end of which the plaintiff was suffering pain in all three parts of his body, namely back, neck and shoulder. It would, in my opinion, be an unduly refined an application of the definition of "cause of action" to regard those two lifting incidents as giving rise to distinct causes of action. To do so it would be necessary to assume that the pain suffered by the plaintiff in those parts of his body was quite unrelated. Common experience in cases of this kind suggests the contrary. Injury to a person's back or neck commonly imposes stress on other parts of the human body, such as the shoulder, rendering it more vulnerable to injury from the effects of the additional stress that is in consequence imposed on that other part. At the present stage of the proceedings, this is a matter of pleading, and therefore of common sense, rather than a matter for precise evidence. On any view of what is pleaded, the plaintiff was, at the end of the day in question, left with physical injury to his body, which resulted from the same cause, which was lifting (whether on one or more than one occasion) in the course of the same employment with the same employer. It is not unreasonable to state it in this way, although admittedly it is to some extent a matter of the level of generality at which the proposition is expressed.

8 In any event, even if the second incident can be said to have given rise to a new cause of action, it was one that arose out of substantially the same facts. The decision in Pianta v. BHP Australia Coal Ltd. [1995] QCA 53; [1996] 1 Qd.R. 65 is plainly distinguishable. There the two incidents took place some five months apart and were alleged to have been caused by activities that were substantially different. One was the jolting caused in driving a heavy vehicle; the other was caused by shovelling mud away from its tracks. Distinguishing the two cases in that way is necessarily somewhat rough and ready. But it accords with the approach adopted in the United States when similar questions arise in the context of limitation statutes. The policies underlying such statutes are, it is said, not "threatened by an amendment that merely adds a ground of recovery or defence arising out of a transaction or occurrence already in suit". See James Hazard Leubsdorf Civil Procedure s4.23, at 226 (4th ed.) Having identified those policies, the authors go on to add:

"This is usually true even when the new ground involves a variation in the facts. A party will likely collect and preserve all the evidence relating to a transaction or occurrence, not just those aspects of it that support or defeat a single legal theory. Moreover, the defendant's sense of security over the transaction or occurrence has already been disturbed by the pending action."

The information collected in this case by solicitors for WorkCover, which is described in the reasons of Williams J. on this appeal, confirms the observations of those authors. The defendant in this instance cannot have been surprised or perceptibly disadvantaged by the additional allegations which the amendment seeks to add. That was essentially the view of the learned primary judge, who said that the relevance of the first incident and of the shoulder injury ought to have been, "and indeed seems to have been", apparent to the defendant and its advisers well before the application for amendment.

9 No proper basis has been shown for interfering with that conclusion. The appeal should be dismissed with costs.

1 This is an appeal by leave from a decision of a District Court Judge permitting an amendment to a plaint after the applicable limitation period had expired.

2 There is little doubt that the respondent, the plaintiff in the action, received some injury on 6 January 1992; he consulted his doctor on the afternoon of that day complaining of pain to his neck, upper back and left shoulder.

3 He commenced an action in the Supreme Court by writ issued 16 December 1994 against his employer, the present appellant, endorsed as follows: "The plaintiff's claim is for damages for personal injuries occasioned by the negligence and/or breach of contract of employment and/or breach of statutory duty of the Defendant. The Plaintiff claims interest on damages". Subsequently he delivered a statement of claim alleging that he sustained an injury on 6 January 1992 in the course of his employment and that the appellant's negligence was the cause of that injury. That action was then transferred down to the District Court.

4 In his initial pleading the respondent made the following relevant allegations:

"3. On or about the sixth day of January 1992, whilst delivering a table and chairs to a customer at Ferny Grove, Brisbane ...

(a) The Plaintiff was required to lift a table unassisted, the weight of which was approximately 45 kilograms and the dimensions of which were 1.25 metres x 1.23 metres x 1.1 metre high;

(b) In lifting the said table, the Plaintiff suffered severe personal injury, loss and other damage.

4. The said personal injuries ... were caused solely as a result of the negligence and/or breach of contract of employment of the Defendant, particulars whereof are as follows:

6. Particulars of the Plaintiff's personal injuries are as follows:

5 After initially delivering a defence essentially denying material allegations, the appellant delivered an amended defence on 21 December 1995 (by which time the limitation period applicable to the respondent's claim had expired) making the following relevant allegations:

"2A. If the lifting incident as alleged in paragraph 3 of the Statement of Claim in fact occurred ... the Defendant says that the lifting incident and its consequences were caused or alternatively were contributed to by the negligence of the Plaintiff in that he:

(b) Continued to work after approximately 8.30 a.m. on 6 January 1992 ... when he knew that he had already hurt his neck and/or his back at about that time on that day and that he had a further delivery (as alleged in paragraph 3 of the Statement of Claim) to make later that day;

(c) Failed to inform the Defendant that he had hurt his neck and/or his back at approximately 8.30 a.m. on 6 January 1992;"

6 There was then correspondence between the solicitors for the parties in February 1998 in the course of which the solicitors for the appellant advised the solicitors for the respondent that based on statements on the WorkCover file and medical reports held, they considered the injuries to be partially related to an incident earlier on the same day as that pleaded. Thereafter the solicitors for the respondent obtained copies of relevant documents on the WorkCover file. In particular the documents so obtained established the following:

(i) The certificate from Doctor Ong, who was consulted by the respondent on the afternoon of 6 January 1992, recorded that at 8.30 a.m. the respondent had lifted a barbeque table and felt something give way. He continued working until about 2 p.m. and lifted another barbeque table when he experienced severe pain to his left neck, left shoulder and left upper back.

(ii) The respondent was interviewed for WorkCover claim purposes on 23 January 1992, probably by a medical practitioner. The history then recorded was that in the morning of 6 January 1992 the respondent had pain in his left shoulder when lifting a barbeque table and later in the afternoon he lifted another table off the back of a truck which resulted in severe neck and left shoulder pain.

(iii) In providing a history to Doctor Morgan the respondent referred to the two incidents on 6 January.

7 Against that background the respondent applied by summons of 24 April 1998 for leave to amend his pleading. That order was made and in consequence the pleading was amended to add a further sub paragraph to paragraph 3 reading as follows:

"(c) Further, whilst delivering a garden chair to a customer at The Grange, Brisbane in the State of Queensland, the Plaintiff was required to lift the chair and in doing so sustained personal injuries, loss and other damage."

and a further sub-paragraph to paragraph 6 reading as follows:

8 It is from the order giving leave to make those amendments that this appeal is brought.

9 The District Court judge in the course of his reasons referred to Rule 104(3) of the Rules of the District Court as the source of his power to make the order. On the hearing of the appeal it was agreed that that was erroneous. By operation of Rule 4(1) of the District Court Rules Order 32 rule 1 of the Supreme Court Rules was the relevant rule. However, it was also agreed that the reasoning of the learned District Court Judge was appropriate to an application based on Order 32 rule 1 and nothing of substance flowed from him erroneously stating the source of his jurisdiction.

10 In the course of argument the following paragraphs from Order 32 Rule 1 were referred to:

"(1) The Court or a Judge may, in any cause or matter, at any stage of the proceedings, allow or direct either party to alter or amend the writ of summons, or any endorsement thereon, or any pleadings or other proceedings, in such manner and on such terms as may be just.

(2) Where an application to the Court or a Judge for leave to make the amendment mentioned in sub rule ... (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court or a Judge may nevertheless grant such leave in the circumstances mentioned in that sub rule if the Court or Judge thinks it just to do so.

(5) An amendment may be allowed under sub rule (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."

11 The contention of counsel for the appellant was that the proposed amendment was not within paragraph (5), and therefore the order granting the amendment could only be supported by paragraph (1). That involved a consideration and comparison of the facts material to each cause of action as that expression was defined in Cooke v Gill (1873) LR 8 C P 107 at 116 and Re Sihvola [1979] Qd R 458 at 459. It was then submitted that the order could not be supported by reliance on paragraph (1) because that did not confer power to make an amendment introducing a new cause of action after the limitation period had expired. To succeed on that argument it would have been necessary for counsel to persuade this court that the decision in Adam v Shiavon [1985] 1 Qd R 1 and certain comments in Archie v Archie [1980] Qd R 546 should not be followed and applied. It would be unnecessary to consider that question if, as contended for by counsel for the respondent, the amendment was within paragraph (5).

12 In support of his submission that the matter introduced by way of amendment did not arise out of the same facts or substantially the same facts counsel for the appellant relied primarily on the decision of this Court in Pianta v BHP Australia Coal Limited [1995] QCA 53; [1996] 1 Qd R 65. There the initial plaint pleaded a cause of action which arose out of incidents which occurred in the course of the plaintiff's employment on 24 August 1990. It was alleged that whilst driving a large converted front end loader over rough terrain the plaintiff experienced severe pain in his lower back and in consequence he suffered the disabilities enumerated in the plaint. It was alleged that inadequate suspension of the vehicle and the roughness of the terrain over which it was driven were caused by negligent acts or omissions on the part of the defendant employer. The claim which it was sought to introduce by way of amendment related to an incident which occurred in the course of the plaintiff's employment with the same employer on 22 January 1991. On that day the plaintiff alleged he suffered another injury to his back. On that occasion he had been operating a Komatsu dozer when one of it's tracks became loose. In order to get access to the track to fix it the plaintiff had to remove a large amount of excess mud. He attempted to remove that mud with a spade and whilst he was shovelling he received the additional injury.

13 The Court of Appeal noted that the question which had to be determined was whether "the cause of action arising from the incident which occurred on 22 January 1991 arose out of the same facts or substantially the same facts as the cause of action alleged in the plaint." (67). The principal contention for the plaintiff was that the new cause of action arose out of substantially the same facts as the original cause of action. In particular counsel for the plaintiff contended that the injury in each case was of the same kind, and the same employer employee relationship giving rise to the same duty of care existed. The Court rejected those submissions by saying:

"The facts out of which each of the causes of action arose were those giving rise to the duty of care, those which constituted a breach of that duty and the fact of injury. The submission that the duties of care owed by the respondent to the applicant in each case were the same because the parties were the same and they were, in each case, in the relationship of employer and employee is correct only in a general sense. Relevantly the precise duties owed are correlative to the breaches of those duties and, as the applicant conceded, the facts constituting the breaches of duty in each case were quite different; neither the same nor substantially the same. And it follows that if the second accident gave rise to a new cause of action the damage was new and consequently different even through it may have been of the same kind.

As none of the facts constituting the essential elements of the two causes of action was the same and those constituting the elements of duty and breach of duty were not substantially the same the learned District Court Judge was plainly right in concluding that the cause of action arising out of the accident which occurred on 22 January did not arise out of substantially the same facts as the cause of action pleaded." (68).

14 If the facts of the present case are considered in the same way a different conclusion is reached. In essence in this case there is only one injury, namely that for which the respondent sought medical treatment late on the afternoon of 6 January.

15 Each incident (the one at 8.30 a.m. and the one at 2 p.m.) involved lifting an item of furniture from a truck and the immediate onset of pain in the region of the neck and left shoulder. The incidents were identical and the alleged breach of the duty owed by the employer to its employee was the same. Further, there was no significant time lapse between the incidents.

16 It is true that the amended pleading could be saying:

(a) All of the injury was sustained as a result of the 8.30 a.m. incident;

(b) All of the incident was sustained as a result of the 2 p.m. incident;

(c) Some of the total injury was occasioned by each incident.

17 That, in effect, only highlights the contention that the added cause of action arises out of substantially the same facts as that initially pleaded. That conclusion is reinforced by a consideration of the appellant's pleading of contributory negligence quoted above. It is not uncommon for a personal injuries action to raise such issues. They are to be resolved by evidence at the trial.

18 Here the additional cause of action clearly arose out of substantially the same facts as that initially pleaded and in consequence the learned District Court Judge had power to make the amendment pursuant to Order 32 Rule 1(5). In the circumstances he was clearly justified in making the order which he did.

1 I agree that the appeal should be dismissed with costs for the reasons given by each of McPherson J.A. and Williams J.