Thomas v State of Queensland[2001] QCA 336

SUPREME COURT OF QUEENSLAND

1. THE COURT:  This is an appeal by the defendant against the grant of leave by a trial division judge to amend a statement of claim.

2. The action is one by an injured motorcyclist against the State as the authority responsible for the Kennedy Highway on which the plaintiff was injured on 12 June 1993. Leave to make the amendments in question was granted on 14 December 2000.

3. It will be convenient to refer to the parties as the plaintiff and the defendant.

4. The history of the litigation (in paras [5] to [9] hereunder) helps to explain the late application for amendment.

5. A writ was issued against the defendant on 4 April 1995 and a statement of claim delivered on 7 August 1995. It alleges that on the day in question (12 June 1993) the defendant was carrying out construction and/or maintenance work on the Kennedy Highway in the area where the accident happened. A large quantity of red soil was said to be on the road surface at that place, and that this accumulation had occurred during the carrying out of the said construction and/or maintenance work by or on behalf of the Department of Transport. As a result of the presence of this material on the road, the plaintiff’s motorcycle whilst travelling around a bend lost traction and collided with a vehicle travelling in the opposite direction. The statement of claim continued:

"8.The accident … was caused by the negligence of the Defendant, its servants and/or agents, particulars of which are as follows:

1. designing, constructing or supervising the construction and/or maintenance work in such a way so as to allow the accumulation of soil on the road surface;

2. designing, constructing or supervising the construction and/or maintenance work without making or causing to be made adequate provision for the carrying away from the road surface of soil which had there been accumulated;

3. failing to take any or any adequate remedial measures to remove the soil from the road surface by, for example, grading, sweeping, or washing the soil away;

4. failing to warn adequately or at all the Plaintiff of the existence of roadworks, road construction and/or maintenance on the said highway;

5. failing to warn adequately or at all the Plaintiff of the existence of soil on the road surface of the said highway;

6. failing to warn adequately or at all the Plaintiff of the slippery nature of the said road surface on the said highway;

7. failing to warn adequately or at all the Plaintiff of the need to reduce his speed as he approached the section of road where there had been accumulated soil on the road surface;

8. allowing road signs warning motorists of the existence of roadworks to be covered by hessian bags or otherwise so that the Plaintiff was unable to read and/or view the said road signs.”

6. In its defence the defendant denied the existence of red soil on the road in the relevant area, and further alleged that “the only road construction work being undertaken in the general region referred to in … the Statement of Claim was the construction of a new section of road at a site removed from the existing roadway to become incorporated, on completion, as part of the Kennedy Highway” and that the relevant works were being undertaken by a third party as an independent contractor.

7. After making further inquiries the plaintiff joined two other defendants and alleged that they were liable because they were responsible for the red soil being on the highway.

8. In June 1996 the limitation period in respect of proceedings based on the occurrence of the plaintiff’s injury expired. In August and September 1996 defences were received on behalf of the additional defendants. They denied responsibility for the red soil on the road, and after discovery the plaintiff’s advisors realised that this was apparently so. Arrangements were then made to discontinue proceedings against those defendants.

9. It was realised that amendments would now be necessary to the statement of claim against the original defendant. In due course an order was made in the trial division on 16 October 2000 that the “final version” of the statement of claim be served on the defendant by 30 October 2000, with the defendant reserving the right to object if the amended statement of claim raised a cause of action different to that initially pleaded. The statement of claim containing the amendments that are now in question was then served. The matter ultimately came on before the learned trial division judge for determination whether leave should be given to deliver the amended statement of claim.

10. It must be acknowledged that the amended statement of claim contains a number of departures from the original version. Although the action at all times remained one for damages for personal injury in respect of the same accident, in a number of respects it alleges different bases of liability.

11. When the application was heard and determined, the High Court decision in Brodie v Singleton Shire Council^[1] had not been delivered.  The common law rules in relation to non-feasance and mis-feasance have now been “re-expressed” and of course the further conduct of the action including, in retrospect, this particular pleading application, must be decided according to what is now recognised as the duty of a road making authority, at least as to the ambit of the duties of care that may now be pleaded without earlier inhibitions in relation to non-feasance.

12. The plaintiff now accepts that his original premise that there had been some works in progress near the site of the accident which caused the accumulation of the red soil on the road was unfounded. It is clear from a reading of the original statement of claim as a whole that the references in paragraph 8(a) and 8(b) to construction and/or maintenance work were to the alleged contemporary works around 12 June 1993, and not to the original construction or to earlier maintenance of the highway. (The original construction, it should be noted, occurred in the 1940s, during the second World War).

13. Turning to the original statement of claim, in point of fact, there were no works in progress around 12 June 1993 to which clauses 8(a) and 8(b) could apply. However paragraph 8(c) of the original statement of claim (failure to remove the soil from the road), is similar to a major head of liability that is included in the amended statement of claim, although the basis upon which it could succeed is now different. The balance of paragraph 8 (ie paras 8(d), 8(f), 8(g) and 8(h)) contains allegations of failing to warn, principally (although not entirely) in relation to the existence of soil on the road.

14. As the amended statement of claim discloses, one of the bases (perhaps the principal basis) upon which the plaintiff now seeks to bring his case is that the offending red soil found its way on to the road through a combination of being washed from the surface of a steep red soil embankment close to the edge of the bitumen and from the tyres of vehicles picking up red soil between the base of the embankment and the paved surface. On that basis it is now alleged (inter alia) that the defendant should have removed the embankment.

15. The amended statement of claim seeks to make the following allegations:

"7.The collision was caused or contributed to by the negligence of the First Defendant, by its servants or agents, the particulars of which are as follows:

Construction and/or design of the Highway

1. Allowing, by failing to carry out sufficient excavation at the time the Highway was constructed the embankment consisting of red soil to be positioned so close to the paved surface of the roadway on the bend that soil could be washed from the embankment onto the road surface;

2. failing to bind, seal or otherwise deal with the surface of the embankment so as to prevent, or at least inhibit, soil from being washed from it on to the surface of the roadway on the bend;

3. having regard to the proximity of the embankment to the surface of the roadway on the bend, and the narrowness of the roadway on the bend, failing to pave, seal or otherwise deal with the area lying between the base of the embankment and the roadway so as to prevent, or at least inhibit, soil from being deposited on the surface of the roadway by the left side tyres of vehicles travelling around the bend;

4. paving the surface of the roadway on the bend with a mixture of bitumen and exposed blue metal aggregate, thereby increasing the potential for vehicles, in particular motorcycles, to lose traction as they travelled around the bend due to the vehicles’ tyres having less contact with the surface area of the roadway than if the roadway had been paved with a flat surface;

Prescription of excessive speed limit

5. prescribing a speed limit as high as 80 kilometres per hour for vehicles travelling around the bend in the same direction as the Plaintiff was travelling at the time of the collision when it knew, or ought to have known that as a consequence of:

1. the multiplicity of accidents occurring on the bend between the time of its construction and collision; and/or

2. narrowness of the paved roadway surface on the bend; and/or

3. the propensity for soil emanating from the embankment  to be present on the surface of the roadway on the bend;

vehicles, in particular motorcycles, travelling around the bend at a speed approximating 80 kilometres per hour were at risk of colliding with vehicles travelling around the bend in the opposite direction;

6. failing to prescribe any advisory speed limit of less than 80 kilometres per hour for vehicles travelling around the bend in order to reduce the risk of collision between vehicles rounding the bend in opposite directions when it knew, or ought to have known, that as a consequence of:

1. the multiplicity of accidents occurring on the bend between the time of its construction and collision; and/or

2. the narrowness of the paved roadway surface on the bend; and/or

3. the propensity for soil emanating from the embankment to be present on the surface of the roadway on the bend;

vehicles, in particular motorcycles, travelling around the bend at a speed approximating 80 kilometres per hour were at risk of colliding with vehicles travelling around the bend in the opposite direction.”

Applicable principles – r 376

16. It will be necessary to consider each group of allegations in turn. But first it is necessary to identify the principles that must be applied. Rule 376 applies because the application for amendment was made after the relevant period of limitation had expired.^[2]  Rule 376(4) provides:

“The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action, if –

1. the court considers it appropriate; and

2. 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”.

The first question is whether the effect of the amendment is to “include a new cause of action”.  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. 

17. The remaining questions are whether these new causes of action arise out of “substantially the same facts as a cause of action for which relief has already been claimed”, and whether it is “appropriate” to grant the amendment. This latter question inter alia raises the issue of prejudice. On such questions, which are points of practice in an interlocutory proceeding, the impression of the judge of first instance will normally prevail, and an appeal court will only reverse such a decision when it is clearly wrong.

18. The question whether new causes of action arise out of substantially the same facts as those of the original claim has already caused some difficulty in determining on which side of the line particular cases fall. In Pianta^[3] an employee who had sued his employer for injury sustained in an accident while driving a front end loader sought leave to add to his statement of claim another similar accident six months later when operating another piece of machinery.  Leave was refused, and the decision was upheld on appeal.  On the other hand in Allonnor Pty Ltd v Doran^[4] a late amendment was upheld in circumstances where a further injury was suffered by an employee later on the same day as that upon which he had based his original claim.  McPherson JA observed:

“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, rending 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”.

19. That may be thought to encourage a fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended. It accords we think with Thomas JA’s statement in Draney v Barry^[5] which might usefully be repeated here.

“I do not think that ‘substantially the same facts’ should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under Rule 376(4).  If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts.  In short, this particular requirement should not be seen as a straitjacket.”

Of course “the story” is a shorthand reference to the matters that the plaintiff has to prove.  If it had to be proved, for example, that the road should have been differently constructed in the 1940s there would not only be a different case (ie cause of action) there would be a substantial difference in the material facts now requiring to be proved.  Quite apart from this, further consideration would have to be given to the question of prejudice.  There are therefore limits to which a broad brush approach can provide the necessary answer.  There will commonly be three separate questions to consider –

1. Is there a new cause of action?

2. arising out of substantially the same facts?

3. prejudice.

20. With these principles in mind, it seems to us that in allowing the entire amendment to be made the learned trial division judge permitted too much in favour of the plaintiff, and used rather too broad a brush. It seems to us that some parts of the amendments sufficiently comply with the test “arising out of substantially the same facts …” and that others do not. We also consider that it was not correct for his Honour to read the words “by failing to carry out sufficient excavation at the time the highway was constructed” as “essentially” involving an allegation of negligent design and that the “real” negligence lies in maintaining the road in that condition over the intervening years. While the allegation of negligent construction is permitted to remain, the plaintiff is entitled to litigate it, and in such circumstances leave should not have been granted to include such allegations.

21. The appropriate order can best be determined by considering the proposed amendments under four subject headings.

1. Original construction – The present allegations of negligence in the original construction do not meet the test of arising out of substantially the same facts as those in the original claim.  Moreover unacceptable prejudice on the part of the defendant should be inferred in relation to litigating such allegations about 60 years after the alleged negligence.  These allegations should have been disallowed.

2. Eliminating the bank and verge as a source of the soil –The essential allegation now is that the defendant should have bound, sealed or otherwise dealt with the surface of the embankment (and verge) so as to prevent soil being washed from it onto the surface of the roadway.  This is sufficiently connected with allegations made in the original statement of claim to satisfy the necessary test and to permit the amendment.  If there was such a duty, it would have existed at material times immediately preceding the time of the accident, and no question of prejudice arises.  Amendments permitting this issue to be litigated were correctly allowed.

3. Inappropriate paving surface – It is now alleged that by using exposed blue metal aggregate for the road surface (rather than paving the road with a flat surface) the danger was increased, and by implication that whenever the metal surface was laid, this was a negligent act.  Such allegations do not arise out of substantially the same facts as the original claim.  Further, it might reasonably be inferred that the defendant would be prejudiced in now ascertaining the necessary facts to meet such allegations.  It follows that amendment of the statement of claim to include 7(d) should not have been permitted.

4. Prescription of warnings and speed limits – The original statement of claim (paras 8(d) to 8(g)) alleged various failures to warn of the existence of soil on the road surface, of its slippery nature, and of the need to reduce speed when approaching the area of the accumulated soil.  The relevant particulars were connected to the danger that arose from the presence of the soil.  It is now sought to plead an additional case of negligence based upon the imposition of a general 80 km per hour speed limit, having regard to an alleged multiplicity of accidents on the bend between the time of its construction and the collision and other factors.  We have fluctuated in relation to this issue.  It is true that the amendments broaden the issue somewhat and introduce a topic for expert evidence; but the original statement of claim raised the issue of the need for warning as one approaches this particular bend, and in the end we do not think that further allegations of alternative types of warning sign to alert motorists to the risk goes beyond the requirements of Rule 376(4)(b).  We would not be prepared to depart from the view of the learned trial division judge in relation to this issue.

22. In the result the order granting leave to serve the final version of the statement of claim was erroneous to the extent that leave should have been refused in respect of the allegations in paragraphs 7(a) and 7(d) of the new statement of claim.

Orders

23. The appellant inter alia sought a variation of the order below by the inclusion of an order that the plaintiff pay the defendant’s costs of and incidental to that application. However we see no good reason to disturb that part of his Honour’s order which directed that there be no order as to costs as between the plaintiff and the first defendant.

24. The orders should be:

1. The appeal is allowed.

2. The respondent pay the appellant’s costs of the appeal in any event.

3. Paragraph 1 of the order below is amended by adding at the end thereof the words “subject to the deletion of paragraphs 7(a) and 7(d) thereof”.