Pianta v BHP Australia Coal Ltd [1995] QCA 53

The action in which the application below was made was one for personal injuries arising out of an accident alleged to have occurred during the course of the applicant's employment with the respondent. In summary his plaint alleges that on 24 August 1990, whilst driving a "cable reeler" (a large converted front-end loader) over rough terrain the applicant experienced severe pain in his lower back in consequence of which he suffered disabilities enumerated in the plaint. It was alleged that inadequate suspension of the cable reeler and roughness of the terrain over which it was driven were caused by negligent acts or omissions of the respondent as the applicant's employer.

The amendments which the applicant sought to add to his plaint would, if allowed, add a new cause of action against the respondent. They allege that on 22 January 1991, during the course of his employment with the respondent, the applicant suffered another injury to his lower back. On this occasion he had been operating a Komatsu Dozer which operated on tracks. A track of the dozer had become loose and the applicant resolved to attempt to fix it. In order to get access to it he had to remove a large amount of excess mud which he attempted to do with a spade. It was whilst he was shovelling this mud that he received this additional injury.

By the time the application to amend was made the relevant limitation period had expired. The application was made pursuant to O.32 r.1(2) and (5) of the Rules of the Supreme Court which, it was common ground, applied in the District Court by reason of r.4(a) of the District Court Rules. Order 32 r.1 relevantly provides:

"1 (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 paragraph (3), (4) or (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 paragraph if the Court or Judge thinks it just to do so.

(5) An amendment may be allowed under sub-paragraph (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.

It was common ground in this Court that the question which the learned District Court Judge had to determine was whether the cause of action arising from the accident 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. It was not submitted for the applicant that the cause of action arising out of the accident of 22 January arose out of the same facts as the cause of action pleaded but it was submitted that it arose out of substantially the same facts as that cause of action.

Mr. Williams Q.C., who appeared for the appellant, relied mainly for his argument on the fact that the injury in each case was of the same kind. And, at least at one point in his argument, he also relied on the fact that, in each case, there was the same relationship of employer and employee giving rise, it was submitted, to the same duty of care.

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.

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. The application for leave to appeal should therefore be refused with costs.