Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Pleadings - Matters of law - Duty of care and breach thereof.

Konskier v B Goodman Ltd [1928] 1 KB 421; Gautret v Egerton (1867) LR 2 CP 371; West Rand Central Mining Co v R [1905] 2 KB 391, referred to.

Judgment Number: [2000] TASSC 130

1 The defendants have applied by interlocutory application for the plaintiff's amended statement of claim dated 19 May 1999 to be struck out, and for judgment to be entered in their favour. They contend that the amended statement of claim does not disclose a cause of action, and that that defect is irremediable. The plaintiff contends that the amended statement of claim discloses a cause of action in negligence, and seeks to amend that pleading further.

2 The plaintiff issued a writ on 15 December 1992 seeking damages for breach of contract, negligence, and breach of statutory duty in respect of personal injury alleged to have resulted from an incident on 27 December 1989. In a statement of claim filed with the writ, it was alleged that the plaintiff had been employed by one or other of the defendants, that a fellow employee had fallen and been seriously injured, that the plaintiff had witnessed the fall and its aftermath, and that various problems with his mental health had resulted. In par3 of that pleading, various non-contractual and non-statutory duties on the part of the first defendant and/or the second defendant were alleged, including duties to take all reasonable precautions for the safety of the plaintiff whilst he was engaged in carrying out his assigned work, not to expose him to a risk of damage or injury of which each defendant knew or ought to have known, to provide and maintain safe and adequate plant and equipment, to take reasonable care that the place at which he carried out his assigned work was safe, to provide and maintain a safe and proper system of work, and to ensure that proper safety procedures were implemented in respect of the work required of him. Identical duties in respect of the fellow employee were alleged in par2 of the pleading.

3 On 11 May 1999, the then Master made an order by consent giving the plaintiff leave to amend his statement of claim. As a result, the amended statement of claim dated 19 May 1999 was delivered. It contained no allegations of any breaches of contract or breaches of statutory duty. As the relevant limitation period had long since expired, any causes of action in contract and for breach of statutory duty were thereby irretrievably abandoned: Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584. The defendants contend that the position is the same in relation to any cause of action in negligence, on the basis that the amended statement of claim did not contain any explicit assertion that either defendant owed the plaintiff any duty of care or any other duty, nor any explicit assertion that any particular duty was breached. They contend that, as a result, the amended statement of claim discloses no cause of action in negligence or at all and that, on the basis of Renowden v McMullin, any cause of action in negligence must be treated as irretrievably abandoned. It follows that they seek judgment against the plaintiff.

4 There is nothing in the Supreme Court Rules 2000, nor in the Supreme Court Civil Procedure Act 1932, that requires a plaintiff to plead any duty of care. Rule 227 contains the following provisions.

"(1) A pleading is to contain in summary form a statement of all the material facts on which the party relies but not the evidence by which those facts are to be proved.

(3) Every pleading is to be expressed so as to give reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial."

5 It is significant that this rule requires the pleading of facts, but does not require the pleading of matters of law. Since the introduction of the Judicature Act system of pleading, a plaintiff is no longer bound to state the legal effect of the facts on which he or she relies, but is bound only to state the facts themselves: Konskier v B Goodman Ltd [1928] 1 KB 421, per Scrutton LJ, at 427.

6 Surprisingly, there is a statement somewhat to the opposite effect in Bullen and Leake and Jacob's Precedents of Pleadings 13 ed, at 678 - 679, where the learned authors said the following:

"The statement of claim 'ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged' Gautret v Egerton (1867) LR 2 CP 371, per Willes J, cited with approval by Lord Alverstone CJ in West Rand Central Mining Co v R [1905] 2 KB 391 at 400). Then should follow an allegation of the precise breach of that duty, of which the plaintiff complains."

7 Gautret v Egerton was, of course, decided before the introduction of the Judicature Act system of pleading. It concerned a declaration in which, in summary, it was pleaded only that the defendants were possessed of certain land, a canal, cuttings and bridges; that the defendants allowed persons to use them to go to and from certain docks; that the defendants wrongfully, negligently and improperly kept and maintained the land, canal, cuttings and bridges so that they were dangerous and unsafe; and that one Leon Gautret had fallen into one of the cuttings and died as a result of unspecified wrongful, negligent and improper conduct by the defendants. No specific facts giving rise to a claim in negligence were pleaded. Thus, no basis for the existence of any duty to the plaintiff or the deceased had been pleaded. The case is not authority for the proposition that the existence of a duty in tort must be pleaded in negligence cases, or in any class of negligence cases, since it predated the present system of pleading, and since no facts (as distinct from vague allegations) were pleaded in the declaration.

8 The second case referred to by the learned authors, West Rand Central Mining Co v R, concerned a petition of right by a company from which a quantity of gold had been seized by the former government of the South African Republic. Lord Alverstone CJ, Wills and Kennedy JJ held that the petition disclosed no right on the part of the suppliants which could be enforced against His Majesty King Edward VII in any English court. However, the case has nothing to do with the law of torts. On the contrary, it was held (at 399) that the petition was demurrable "for the reason that it shews no obligation of a contractual nature on the part of the Transvaal Government". It was only in that context that Gautret v Egerton was referred to. In contract cases, it is necessary to plead the relevant contractual terms, thereby identifying the contractual duties alleged by the plaintiff, and the alleged breaches of those terms.

9 There are many cases, particularly complex and unusual ones, when it is desirable for a statement of claim to include an explicit allegation as to each duty said to be owed by the defendant to the plaintiff. Perhaps such a course would be preferable in this case, and in "nervous shock" cases generally. But a statement of claim is quite capable of disclosing a cause of action in negligence if only the facts alleged to give rise to a duty are pleaded, and no assertion is made as to the existence of any duty. Whether the existence of certain facts gives rise to a duty is a question of law that need not be pleaded.

10 The amended statement of claim contains allegations that the plaintiff was employed as a rigger by the first defendant and/or the second defendant; that Mervyn McLeod was likewise employed; that the first defendant and/or the second defendant instructed both of them to install the upper section of a certain boiler duct; that in the process of erecting the duct an incident occurred whereby Mr McLeod fell and suffered severe personal injuries; that his fall was the result of the negligence of the first defendant, its servants, agents or employees and/or the second defendant, its servants, agents or employees; that the plaintiff saw Mr McLeod fall and strike the ground, went to his assistance, and remained with him; that as a consequence of the injuries to Mr McLeod, the plaintiff has suffered severe personal injuries, particularised as post-traumatic stress disorder, anxiety and depression; and that by reason of "the aforementioned" he has suffered loss and damage and been put to expense. In my view, all the essential ingredients of a "nervous shock" claim have been sufficiently, if clumsily, pleaded: a relationship of proximity between the plaintiff and the appropriate defendant (his employer); negligence resulting in an injury witnessed by the plaintiff; a relationship between the plaintiff and the person injured as fellow employees, and possibly also as rescuer and victim; a sudden traumatic event; and a chain of causation whereby the alleged negligence resulted in psychiatric conditions falling within the description "nervous shock". See Mount Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383. It follows that the defendants' application must fail.

11 I turn to consider the plaintiff's application for leave to amend the amended statement of claim. The plaintiff is seeking to add four further particulars of negligence in relation to the allegation that Mr McLeod's fall was caused by the negligence of either or both defendants. Further, a number of changes are proposed, apparently with a view to clarifying the plaintiff's allegations. Instead of the plea that the plaintiff has suffered severe personal injuries "as a consequence of the injuries to Mr McLeod", it is sought to plead that he has suffered personal injuries "as a result of seeing Mr McLeod fall and going to his assistance". Rather than relying on a chain of causation whereby it is alleged that the first and/or second defendant, its servants, agents or employees caused Mr McLeod's fall; that Mr McLeod suffered severe personal injuries when he fell; that the plaintiff saw him fall, saw him strike the ground, went to his assistance, and remained with him; and that as a consequence of his injuries, the plaintiff has suffered personal injuries, it is sought to plead that the plaintiff's personal injuries were caused by the negligence of the first and/or second defendant, its servants, agents or employees. It is proposed that such negligence be particularised by repeating the particulars of the negligence which caused Mr McLeod to fall, and alleging further negligence in the exposure of the plaintiff to the risk of Mr McLeod falling, and the exposure of the plaintiff to the risk of having to provide assistance to Mr McLeod after he fell. It is proposed to attribute the plaintiff's alleged loss, damage and expense to "the Defendant's [sic] negligence" instead of "the aforementioned".

12 The proposed amendments will by no means transform the amended statement of claim into a masterpiece of pleading, but there is nothing inherently confusing about them. There is no suggestion that either defendant will suffer any specific prejudice as a result of the introduction of four new particulars of negligence. There is some risk that adding four new particulars of negligence so long after the alleged incident in 1989 may create difficulties for the defendants, but there is no reason for me to think that the incident was not thoroughly investigated years ago. I am somewhat concerned that the plaintiff is seeking to add to the particulars of his injuries, in addition to the references to post-traumatic stress disorder, anxiety and depression, a statement that further particulars are to be supplied. However, it was not suggested in argument that the defendants would be prejudiced by that amendment. Leave to amend will ordinarily be given so long as that can be done without injustice to the opposite party: Cropper v Smith (1884) 26 Ch D 700 at 710; Shannon v Lee Chun [1912] HCA 52; (1912) 15 CLR 257 at 261; Clough v Frog (1974) 48 ALJR 481; Commonwealth v Verwayen (1990) 170 CLR 394 at 456, 464, 485. In the circumstances, I see no reason not to allow all of the proposed amendments.

13 For these reasons, I have decided to dismiss the defendants' interlocutory application dated 1 September 2000, and to grant the plaintiff leave to amend his amended statement of claim in accordance with the document attached to his interlocutory application dated 13 September 2000, and the minor amendments thereto which Mr Gaggin listed at the hearing. I direct that the new amended statement of claim be delivered within seven days. I will hear counsel as to costs and any other consequential matters.