Edwards v State of Queensland & Anor [2012] QSC 248

[1] McMeekin J: The issue to be resolved concerns the plaintiff's right to amend his Statement of Claim nearly four years after his cause of action accrued, and outside the relevant limitation period.

[2] The plaintiff claims that he is entitled to amend as of right pursuant to r 378 Uniform Civil Procedure Rules 1999 ("UCPR") arguing that his amendments merely particularised an existing cause of action. The second defendant says that the plaintiff's amendment raises new causes of action outside the limitation period and that leave is therefore required pursuant to r 376(4) UCPR. The second defendant contends that leave should not be granted because the new causes of action do not arise "out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding" and because they are relevantly prejudiced.

[3] Rule 376 of the Uniform Civil Procedure Rules 1999 (UCPR) provides, so far as is relevant, as follows:

(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

(4) The court may give leave to make an amendment to include a new cause of action only if -

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

[4] The plaintiff claims to have suffered injury particularised in both the original and amended pleading as a disc protrusion in his cervical spine and a soft tissue injury to his left shoulder. The plaintiff claims that he suffered such injury, consistently in both the original pleading and the amended pleading, in the course of carrying out work for and on behalf of the second defendant on 7 February 2007 at the second defendant's worksite at Alligator Creek.

[5] By his original pleading the plaintiff alleged that at about 1:30pm on the nominated date he "was required to perform heavy manual labouring duties including lifting ladders and shovelling causing some left arm pain". He then pleaded that at that time and date "whilst lifting a fuel container with his right hand lifted a drop slaw (sic) weighing approximately 20kg with his left hand out of a compartment on the side of a work truck suffering from pain from the Plaintiff's neck down the Plaintiff's left arm."

[6] By his original pleading the plaintiff then alleged that he suffered the nominated injuries "as a result of the said incident". The word "incident" was not defined. The only activity pleaded that could be considered to be an "incident" within the normal meaning of the word is that involving the lifting of the drop saw.

[7] The second defendant sought further and better particulars of what the plaintiff meant by the word "incident". The plaintiff effectively avoided answering the request. His response was "the said incident is the incident described at paragraph 4 of the Statement of Claim". Again the only sensible interpretation of the pleading was the lifting of the drop saw as being the relevant "incident".

[8] That the second defendant interpreted the plaintiff's pleading as relating to the drop saw seems evident from its remaining requests for further and better particulars which all concentrated on the task of lifting the drop saw.

[9] There matters remained until the amended pleading was delivered. There is no change to the date and place of the relevant work. The amendments however are extensive.

[10] The amended pleading alleges that the relevant work commenced at or about 6:30 am (not 1.30pm as originally pleaded) and consisted of the following tasks and activities:

(a) The removal of existing asphalt from a section of the bridge;

(b) The undoing and removal of bolts securing sleepers to log girders;

(e) The laying of new asphalt (described as "the task");

(f) Removing, replacing and tightening bolts in the bridge from underneath the bridge (described as "the first activity");

(g) Using a twelve pound sledge hammer to knock out sleepers from the bridge ("the second activity");

(h) Using a bar to assist with the insertion of new sleepers ("the third activity");

(i) Removing a drop saw from a truck ("the fourth activity").

[11] In relation to the first activity the plaintiff pleads that in undertaking the activity he "was required to stand on a ladder under the bridge and hold a spanner to nuts (adopting difficult postures) to enable a release of bolts using a pneumatic rattle gun for a period of prolonged and extended period (sic)". In relation to the second activity the plaintiff pleaded that he "was required to repetitively use a 12lb sledge hammer at maximum force over a period of about a prolonged and extended period (sic)". In undertaking the third activity the plaintiff pleads that he "was required to lever a longitudinal decking boards/concrete kerbing as new sleepers were sled (sic) into position using significant exertion for a prolonged period". In relation to the fourth activity the plaintiff pleaded that "whilst lifting the fuel container with his right hand, lifted the drop saw weighing approximately 20kgs with his left hand out of a compartment on the side of a work truck, causing pain from the Plaintiff's neck down the Plaintiff's left arm."

[12] Paragraph 5 of the original pleading was deleted (whereby the plaintiff had pleaded that he had sustained the nominated injuries "as a result of the said incident") and the following inserted:

"As a result of the fourth activity, alternatively all of the activities or alternatively any one of them, the Plaintiff sustained ... [the nominated injuries]".

[13] As well an amendment was made to the alleged breaches of duty and breach of contract. In the original version of the pleading the allegations of negligence and breach of contract were extremely broad and I might say largely uninformative. The amendment added to those general allegations the following:

(i) Requiring the Plaintiff to work in difficult and extended postures;

(j) Requiring the Plaintiff to work for extended periods with maximal force using a 12lb sledgehammer when it was unsafe to do so;

(k) Requiring the Plaintiff to work for prolonged periods at significant exertion whilst manoeuvring longitudinal decking boards/concrete kerbing when it was unsafe to do so.

[14] Following the amendments a number of essential matters remain unchanged. First, the pleaded relationship between the second defendant and the plaintiff has not changed - the plaintiff was a labourer employed by the first defendant and his labour was hired by the first defendant to the second defendant to work under the supervision and direction of the second defendant. Secondly, the date of the alleged injury has not changed. Thirdly, the place at which the plaintiff suffered injury has not changed. Fourthly, the fact that the plaintiff alleges that his injury was caused whilst he was carrying out heavy manual labouring duties has not changed. Finally, the plaintiff's allegation that he suffered pain from his neck down his left arm when lifting a drop saw remains unchanged.

[15] What has changed is that the plaintiff now alleges that his injury has been caused or may have been caused by a series of tasks not previously identified. Further each task, it is said, was required to be carried out in such a manner as to involve breaches of duty owed under the general law or in contract, breaches that have not in material respects been previously identified.

[16] While it can be accepted that each of the tasks fall within the general description of heavy manual labouring duties, the only two heavy manual labouring duties identified in the original Statement of Claim - that of lifting ladders and shovelling - form no part of the amended pleading.

[17] The issue then is whether the addition of the activities that I have mentioned and the related breaches of duty which are alleged to have caused injury and about which there has been no prior complaint, constitutes the pleading of a new cause of action.[1] The submission on behalf of the plaintiff is that the amendments merely particularize an existing cause of action. As Phillip McMurdo J observed in Borsato v Campbell[2]:

"The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff's case is described."

[18] Examination of the decided cases provides some guide as to where the dividing line is to be drawn. Consideration of the cases shows that where the plaintiff seeks to allege that the damage complained of has come about as a result of a different activity involving a separate and distinct breach of duty then a new cause of action is being set up. It is not relevant that the activities complained of might be described as being of the same general type or that the duty alleged to be owed might be of the same general type.

[19] Thomas v State of Queensland[3] is a good illustration. There a motorcyclist brought action against the State as the authority responsible for a highway on which he had suffered injury. His case was that there was a large amount of soil on the road surface which caused his motorcycle to lose traction and collide with another vehicle. He wished to change his case from one where the soil had come onto the road as a result of the road works carried out by the defendant to one where the soil came onto the road by reason of being washed away from a nearby embankment caused by the poor construction of the highway in the first place. To the question whether the effect of the amendment was to include a new cause of action the Court responded:

"The essential elements in a claim for damages for negligence are the duty of care, breach of that duty and injury caused by that breach. Here, although only the one injury and incident is alleged, different duties, different breaches and different causes of injury are now alleged. In our view the effect of the amendment is to include new causes of action."[4]

[20] That there might be no change to the governing relationship in the amended pleading and hence to the duty owed does not determine the issue. Rather it is the facts constituting the breach which are important. The point was well made in Pianta v BHP Australia Coal Limited[5]. There the plaintiff claimed damages for personal injuries alleged to have arisen out of his course of employment with the defendant. In his original pleading the plaintiff alleged that on the 24th August 1990 whilst driving a "cable reeler" over rough terrain he experienced severe pain in his lower back as a consequence of which he suffered disabilities. The amendment that he sought to make was to allege that on 22 January 1991, again during the course of his employment with the defendant, he suffered another injury to his lower back whilst shovelling mud with a spade away from the tracks of a dozer. It was conceded there that the amendment raised a new cause of action. Relevantly the Court said:

"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 though it may have been of the same kind." (emphasis added)

[21] Alteration to the facts constituting the breach of duty alleged was critical again in Wolfe v State of Queensland.[6] The proceedings concerned a claim for damages for personal injury suffered when a motorist collided with a tree after losing control of the steering of his vehicle when the vehicle hit welts on the surface of the Cunningham Highway. By his original pleading the plaintiff alleged that the duty owed to him by the road authority had been breached in that the authority had failed to correct welts which had formed on the road surface. By his proposed amendment he alleged that the deficiency was in the work which should have been done in relation to the sub-surface of the road in order to prevent the welts forming at all. Keane JA pointed out[7] that "the determination of the question of whether an act or omission involves a breach of a duty of care depends upon the identification of the particular facts said to reveal a breach of the duty" citing the judgment of Kirby J in Romeo v The Conservation Commissioner of the Northern Territory:[8]

"It is the reasonableness of a defendant's actions or inactions, when faced with the relevant risk, which is critical in determining whether a duty of care has been breached. The question whether the defendant has met the requisite standard of the reasonable person must be assessed on the facts of each case..."

[22] The facts in Allonnor Pty Ltd v Doran[9] come closest to the facts here and comments by McPherson JA provide most support for the plaintiff's submission. There the amended pleading sought to add a second and different lifting incident to that first pleaded but occurring on the same day and with the same employer. MacPherson JA commented that "it may perhaps be doubted whether what was sought to be added by way of amendment really amounts to a new cause of action". His Honour said[10]:

"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. ... 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."

[23] In the end result however MacPherson JA did not determine the issue but rather decided the case on the basis that the second incident was at least one that arose out of substantially the same facts and leave ought to be given. That seems certainly to be the view of Williams J where he concluded (at [18]): "here the additional cause of action clearly arose out of substantially the same facts as that initially pleaded..." Muir J agreed with both MacPherson J and Williams J.

[24] Here, perhaps at one level of generality, it might be said that there is no new cause of action. The relationship relied on for the duty of care imposed on the defendant in each pleading is the same. The nature of the injury sustained is the same and it was sustained, on either version of the pleading, on the same date and as a result of work carried out for the defendant. There are similarities with the facts in Allonnor. However the change in the pleading here is much more extensive and more critical than that considered in Allonnor. Here the nature of the activities complained of from one pleading to the next are very different as are the alleged breaches of duty. Adopting difficult postures for a prolonged period, repetitively using a twelve pound sledge hammer at maximum force for prolonged periods and levering longitudinal decking boards or concrete kerbing, again for a prolonged period, are all activities separate and distinct from anything mentioned in the original pleading.

[25] And the change here is sufficiently fundamental to fail the test suggested by Keane JA in Wolfe:

"One may test the point by considering what would have happened if, at trial, [the Plaintiff's] counsel sought to lead evidence of the failure to maintain the sub-surface drainage of the highway, without having made the amendment in question. That evidence would clearly be objectionable on the ground of surprise. It would also be objectionable on the ground that the evidence was simply irrelevant to the case of breach of duty raised by the pleading against the State."[11]

[26] Likewise here. While the duty and the damage might be the same the breach of the duty is all important and involves very different considerations in the amended case.

[27] Given that determination the amendment can only be allowed if it satisfies the two matters nominated in the rule - that it arises out of substantially the same facts and that it is appropriate that it be allowed.

[28] It is established that the pleading of some additional facts is not fatal to the argument that the new cause of action arises out of "substantially the same facts" as the original pleading.[12] The difficulty for the plaintiff here is that the action of lifting a drop saw of a significant weight out of a compartment on the side of a work truck and the considerations relevant to any breach of duty involved in such a task are very different to the considerations that apply to each of the activities that are now sought to be relied on as a cause of injury. The new pleading effectively alleges very different breaches of the defendant's duty. It was held in Wolfe that "an amendment which sets up a different breach of duty is not within the scope of r 376(4)(b) of the UCPR."[13]

[29] It follows then that the claimed breaches of duty cannot be said to arise out of substantially the same facts as the originally pleaded cause of action. It follows that as against the second defendant the pleading should not be allowed to stand.

[30] It is necessary to make three further comments. First, the amended pleading was filed and served in December 2011 and the application to set it aside brought six months later, on 10 July 2012. Rule 379(1) UCPR provides that "if a party makes an amendment without leave before the filing of the request for trial date, another party may, within 8 days after service on the party of the amendment, apply to the court to disallow all or part of the amendment." I raised with counsel for the second defendant the issue of whether I had the power, given the expiration of the eight day period mentioned in the rule, to disallow the amendment. Miss Callaghan, who appeared for the second defendant, provided a supplementary submission, by invitation, in which she submitted that r 7 UCPR (which allows the court to extend time) and r 371 UCPR (which provides that a failure to comply with the rules is an irregularity only and a court may declare a document or step taken to be effectual) permitted a discretion to be exercised in favour of the applicant by extending the necessary time for the making of its application. The second defendant explained the reasons for the delay and there was no suggestion from the plaintiff's side that there was any prejudice resulting. In the circumstances, if necessary, I would so exercise my discretion.

[31] Secondly, this case has the odd feature that r 376 by its terms does not apply to it. Rule 376 provides that it applies only to an application for leave to make an amendment "if a relevant period of limitation, current at the date the proceeding was started, has ended". Here the cause of action accrued on 7 February 2007 but the claim was not commenced till 4 October 2010. Hence the three year limitation period applicable to the second defendant had in fact expired at the date that the proceeding was started. Neither defendant has pleaded a limitation defence. I take it from what I was told from the Bar table that the first defendant did not have such a defence available to it, presumably because of the pre-litigation steps that were required and rights accrued at that stage. I was told that no such considerations applied to the second defendant but nonetheless it had chosen not to plead the limitations statute.

[32] It is plain enough that r 376(1) is so worded so as not to deprive a defendant of a valid limitation defence. Given the express pre condition set out in the rule it might well follow that I have no power under the rule. I received no submissions on the point. If the rule provides no such power it seems evident that it is beneficial that such a power exist. Recourse may be had to the inherent power of the court to control its own processes. What the interests of justice would require seems to me to be defined by the terms of r 376.[14]

[33] Finally, this case has the peculiarity that the first defendant has not joined with the second defendant in seeking to strike out the amended pleading, presumably again because of differing limitation issues. So the amended pleading remains on foot as against the first defendant. No particular attention was paid to the orders that ought to be made given that the first defendant makes no complaint about the amendments. Its seems to me that the plaintiff will need to rework the pleading if he wishes to pursue the alternative causes of his alleged injury, so as to distinguish between the first defendant and the second defendant.

(b) The plaintiff has leave to re-plead his Statement of Claim in accordance with these reasons;

(c) The parties have liberty to apply within seven days to seek any variation in these orders to better reflect the intent of these reasons;

(d) The plaintiff pay the costs of the second defendant of the application.

[1] Which I will take to mean, as most of the cases do: "Every fact which is material to be proved to entitle the plaintiff to succeed": Cooke v Gill (1873) LR 8 CP 107 at 116

[2] [2006] QSC 191 at [8]

[3] [2001] QCA 336

[5] [1995] QCA 53; [1996] 1 Qd R 65

[6] [2008] QCA 113

[9] [1998] QCA 372

[12] See Draney v Barry [1999] QCA 491 per McMurdo P at [4]; per Thomas JA at [57]

[14] Cf. the discussion in Draney v Barry [1999] QCA 491 concerning the overriding discretion to add a cause of action out of time when the interests of justice demanded