_Wolfe v State of Queensland_

Judgment (53 paragraphs)

[1]

**[1] KEANE JA: Mr Wolfe is the plaintiff in an action for damages for personal injury suffered by him on 27 December 1999 when he crashed into a tree after losing control of the steering of his vehicle when it hit welts on the surface of the Cunningham Highway ("the highway") approximately 10 kilometres east of Goondiwindi. Mr Wolfe's action was commenced in 2002.

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[2] Mr Wolfe brings his action against the State of Queensland as the entity responsible for the design, construction and maintenance of the highway.

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[3] On 19 October 2007 the learned primary judge allowed Mr Wolfe's application to amend his statement of claim to add an allegation that his injuries were caused by the negligence of the State's servants or agents, in that they failed "on maintenance of the road to provide adequate sub-surface drainage with the result that the welts formed."

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[4] The State seeks leave, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), to appeal against the decision of the learned primary judge. Leave is necessary because the order of the learned primary judge was interlocutory rather than final.**

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[5] On behalf of the State, it is said that leave to appeal should be granted because the effect of the decision of the learned primary judge was to create an injustice by denying the State a defence to Mr Wolfe's claim, as newly formulated, under the Limitation of Actions Act 1974 (Qld). It is said that this injustice was created by reason of the learned primary judge's failure to appreciate that the amendment was not permitted by r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). If there is merit in the State's argument, the State has indeed suffered an injustice which should be corrected, and leave should be granted to enable this injustice to be remedied.[1] The State's argument is in short compass. The convenient course is, therefore, to proceed to a consideration of the merits of the State's argument that the amendment was not permitted by r 376(4) of the UCPR.

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Rule 376

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[6] Rule 376 of the UCPR provides as follows:

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(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.

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(2) The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if-

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(b) the court is satisfied that the mistake sought to be corrected-

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(ii) was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

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(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if-

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(b) the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.

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

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(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."

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[7] The particular focus of the State's argument is upon the terms of r 376(4)(b), the State's contention being that the effect of the amendment allowed by the learned primary judge is to add a new cause of action which does 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".

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[8] Before the amendment in question was made, paragraph 5 of Mr Wolfe's statement of claim had alleged:

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"The aforesaid collision and the Plaintiff's personal injuries, loss and damage was caused and/or materially contributed to by the negligence of the Defendant, its servants and/or its agents, particulars of which are as follows:

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(a) failing to bind, seal or otherwise deal with the welts which had appeared in the surface of the roadway so as to prevent, or at least inhibit its effect on motor vehicle traffic and in particular, on the steering capabilities of motor vehicles;

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(b) failing to carry out any or any adequate maintenance of the road surface so as to render the road surface reasonably smooth and/or safe for vehicular traffic travelling at speed;

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(d) causing and/or permitting the centre line of the roadway to move from its true position."

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[9] The learned primary judge refused leave to permit the addition of an allegation of negligent construction of the road to provide adequate sub-surface drainage to prevent the welts forming. Nevertheless, his Honour took a different view of the addition of the allegation relating to the need for maintenance of the road to provide adequate sub-surface drainage. In relation to these issues, his Honour said:

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"If I did give leave for the proposed subparagraph (e) which raises construction or maintenance, to the extent that construction is involved I am of the view that would, in the circumstances, be raising a new cause of action which does 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 proceedings. See rule 376 subrule (4) paragraph B of the UCPR.

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However, with respect to maintenance, I think different considerations apply. That in my opinion is not raising a new cause of action. Already the facts have been raised in that there was an allegation of a failure to bind, seal or otherwise deal with the welts which had appeared in the road surface and further failing to carry out any or any adequate maintenance of the road surface to render the road surface reasonably smooth and/or safe for vehicular traffic. Those allegations, in my view, are reasonably arguable to be maintenance questions or involve maintenance questions at least and therefore do not offend against the prohibition in subrule (4) of rule 376."

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**[10] It must be said immediately that his Honour's reasoning treats as decisive of the question whether a new cause of action was raised by the amendment, the circumstance that Mr Wolfe had already pleaded facts raising "maintenance questions". To treat this circumstance as decisive is to fail to recognise that the facts pleaded prior to the amendment made no reference to any deficiency in the condition of the sub-surface of the highway which the State was duty-bound to correct in order to discharge its obligation to exercise reasonable care for users of the highway. In proceeding on this footing, the learned primary judge was, in my respectful opinion, mistaken as to the scope of Mr Wolfe's existing pleading. By reason of this mistake, the learned primary judge's discretion miscarried.[2]

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[11] On no fair reading of the allegations pleaded prior to the amendment could it be said that they were apt to alert the defendant that the case made against it comprehended a complaint of breach of duty in relation to the State's obligation to exercise reasonable care to maintain the highway other than as to the inadequacy of the State's efforts to maintain the surface of the highway. It is not accurate to say that the allegation added by the amendment was merely a further particular of the cause of action already pleaded in relation to the negligent maintenance of the surface of the highway. The allegations made in paragraph 5(a) and (b) related to work which should have been done to the surface of the roadway to correct welts which had already formed: the amendment related to work which should have been done in relation to the sub-surface of the road in order to prevent the welts forming at all.

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[12] One may test the point by considering what would have happened if, at trial, Mr Wolfe's counsel sought to lead evidence of the failure to maintain the

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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. It was not part of Mr Wolfe's pleaded case to put in issue the condition of the sub-surface of the highway and the acts of maintenance which should have been taken by the State in respect of that sub-surface area in order to prevent welts from forming on the surface.

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[13] 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. In Romeo v Conservation Commission of the Northern Territory,[3] Kirby J emphasised that:**

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"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 ..."

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**[14] Similarly, in Yi v The Service Arena Pty Ltd,[4] Mason P referred to the statement of McHugh J in Perre v Apand Pty Ltd[5] when he observed that: "The extent of a duty falls for decision in relation to 'concrete facts arising from real life activities'."

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[15] In Pianta v BHP Australia Coal Limited,[6] this Court adopted this similar approach to the determination of whether it can be said that a new cause of action is pleaded and whether it depends on facts which are not substantially the same. The Court said:**

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"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."

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**[16] In the present case, the facts previously pleaded on Mr Wolfe's behalf concerned acts which it was alleged should have been carried out on the surface of the highway to remove welts which had formed there. They gave no hint that Mr Wolfe was contending for findings of fact to support the proposition that the State had unreasonably omitted to attend to the condition of the sub-surface of the highway and had thereby breached its duty of care to the users of the highway. The amendment sought by Mr Wolfe alleged a quite different breach of duty from the breach previously pleaded. It sought to set up a quite different allegation of breach of the State's duty of care to users of the highway.

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[17] An amendment which sets up a different breach of duty is not within the scope of r 376(4)(b) of the UCPR. The authorities which illuminate the application of r 376(4) in this regard were summarised by P D McMurdo J in Borsato v Campbell & Ors:**

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"The term 'cause of action' was defined in Cooke v Gill ((1873) LR 8 CP 107 at 116) as being 'every fact which is material to be proved to entitle the plaintiff to succeed', a definition which many judgments have employed in the context of this rule or its equivalent: see eg Allonnor Pty Ltd v Doran ([1998] QCA 372 at [3]) per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff's case would be treated as raising a new cause of action which required leave in the context of a rule such as

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r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland ([2001] QCA 336 at [19]) subsequently endorsed as a 'fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended'. 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. Some illustrative guidance is provided by Allonnor Pty Ltd v Doran, Thomas v State of Queensland and another judgment of the Court of Appeal, Central Sawmilling No 1 Pty Ltd & Ors v State of Queensland ([2003] QCA 311).

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In Thomas v State of Queensland, the Court of Appeal disallowed an amendment of a case brought by an injured motorcyclist against the State as the authority responsible for the highway on which he was injured. 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. His claim was pleaded originally on the basis that the defendant had been undertaking road works at the scene which had resulted in this soil on the road. He sought to amend to claim that the soil was there because it had been washed from a nearby embankment in a way which was attributable to poor construction of the highway in the first place. The Court held that this was a new cause of action, saying in its joint judgment: (At [16])

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'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 for one injury an 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.'"[7]

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**[18] In the light of these authorities, I consider that the cause of action raised by the amendment involving, as one of its elements, an alleged breach of duty on the part of the State in relation to the maintenance of the condition of the sub-surface of the highway, is a new cause of action. A breach of duty involving acts or omissions relating to the condition of the sub-surface of the highway, and the arrangements necessary for its efficient drainage, was not previously part of Mr Wolfe's case. The factual basis for the alleged breach of duty is substantially different from that previously pleaded; it does not arise out of substantially the same facts as the previously pleaded cause of action.

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[19] For these reasons, I have concluded that the learned primary judge erred in law in regarding the facts previously pleaded in the statement of claim as raising "maintenance questions" which encompassed the proposition that the State breached its duty of care to users of the highway by reason of acts or omissions on its part relating to the condition of the sub-surface of the highway and arrangements necessary for its efficient drainage so as to prevent the formation of welts on the surface of the roadway.**

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**[20] The learned primary judge erred in permitting the amendment.

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[21] Leave to appeal should be granted. The appeal should be allowed. The orders made below should be set aside. The application for the amendment should be refused.

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[22] The respondent should pay the appellant's costs of the application below and of the application and appeal in this Court to be assessed on the standard basis.

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[23] MUIR JA: I agree with the reasons of Keane JA and the orders proposed by his Honour.

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[24] DOUGLAS J: I also agree with the reasons of Keane JA and the proposed orders.**

[48]

[1] Castillon v P&O Ports Ltd (No 2) [2008] 2 Qd R 291 at222; [2007] QCA 364 at [8].

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[2] Cf House v The King (1936) 55 CLR 499 at 505.

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[4] [2001] NSWCA 400 at [25].

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[5] [1999] HCA 36; (1999) 198 CLR 180 at 211.

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[6] [1995] QCA 53; [1996] 1 Qd R 65 at 68 cited with approval in Allonnor Pty Ltd v Doran [1998] QCA 372 at [13].

[53]

[7] [2006] QSC 191 at [8] - [10] (citations footnoted in original).

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Judgment (53 paragraphs)

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