Horne v State of Queensland[2018] QDC 246

DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 31st of May 2018, a claim was filed in this Court, claiming damages for personal injuries and other loss and damage suffered by the Respondent, Amanda Lee Horne, due to the negligence and/or breach of contract and/or breach of duty of the Applicant, its servants or agents.  Together with interest thereon, pursuant to the provisions of the Civil Proceedings Act 2011, from 26 April 2015 to the date of judgment or earlier payment, herein, and costs.

2. [2]
   The claim is based upon facts alleged in the Statement of Claim, which was filed contemporaneous with the claim.  In particular, that Statement of Claim is in these terms, at least as is relevant to this particular application:

3. The Defendant was obliged, pursuant to the terms of the Contract of Employment between the Plaintiff and the Defendant, and it was the duty of the Defendant:

1. (a)
   To take all reasonable precautions for the safety of the Plaintiff whilst she was engaged in her said employment;

2. (b)
   Not to unreasonable[sic] expose the Plaintiff to a risk of damage or injury of which the Defendant knew or ought to have known;

3. (c)
   To provide the Plaintiff with a proper and safe place of working;

4. (d)
   To provide the Plaintiff with a proper and safe system of working.

4. At or about 8:45pm on 26 April, 2015 at the said Correctional Centre:

1. (a)
   The Plaintiff,  the course of her said employment, was walking from the female prison farm to the main correctional centre, on a grassed footpath at night;

2. (b)
   The Plaintiff noticed some feral boars in the area;

3. (c)
   A boar came up an embankment and reared up at the Plaintiff and charged at a fence, causing the Plaintiff to stumble catching her right foot and ankle in a gutter, causing injury (“the incident”).

6. As a consequence of the incident referred to in paragraph 4 hereof, the Plaintiff suffered personal injuries and has, as a consequence, suffered loss and damage.

7. The incident referred to in paragraph 4 hereof was caused by the negligence of the Defendant.

Particulars:

1. (a)
   Failed to provide a safe place of work;

2. (b)
   Failed to provide a safe system of work;

3. (c)
   Failed to provide any or adequate assistance;

4. (d)
   Required, allowed or permitted the Plaintiff to perform a task which the Defendant knew or ought to have known unreasonably exposed her to a risk of injury;

5. (e)
   Failed to warn or instruct the Plaintiff as to the risk of carrying out her work;

6. (f)
   Failed to adequately assess the Plaintiff’s work tasks in the context of safety and to design, implement and enforce safe working practices;

7. (g)
   Failed to identify a hazard or hazards in the workplace;

8. (h)
   Failing to conduct regular inspection of the Correctional Centre to alleviate the element of risk associated with the existence of feral boars on the grounds of the Correctional Centre;

9. (i)
   Failed to design, implement and/or maintain a system of work and work practices and procedures which involves the reporting of potential risk factors;

10. (j)
    Failed, in a timely way, to remove the feral boars from the grounds of the Correctional Centre to prevent risk of injury;

11. (k)
    Allowed or permitted the existence of the feral boars to rapidly increase in numbers and become a hazard/nuisance and/or pest to persons present on the grounds of the Correctional Centre, including the Plaintiff;

12. (l)
    Further and/or in the alternative, the Defendant, by its servants or agents, was in breach of its statutory duty to the Plaintiff pursuant to the provisions of the Work Health & Safety Act 2011.

3. [3]
   A Defence was filed in relation to the claim, on the 9th of July 2018.  The facts relied on by the Applicant are set out in the Defence, which is, again, attached.  There are a number of paragraphs relevant and responsive to those to which I have referred, arising from the claim. But in addition, there is specifically a notation, now corrected in the amended Statement of Claim, referring to the gender of the Respondent. 

4. [4]
   In the Statement of Claim it had been unspecified as to whether the Respondent was male or female, noting both genders, and in paragraph 1(c) of the Defence, the Applicant stated that it:

Denies the allegation of fact contained therein, and believes the said allegations to be untrue, because the plaintiff was and remains female.

5. [5]
   It emphasises, before I got on to deal with the paragraphs in response to those arising from the claim, the need for there to be considerable particularity and specificity, noting, of course, that the pleadings themselves detail the claim to be made.  Relevant to the application now before the Court, are the following paragraphs:

3. With respect to paragraph 3 of the Statement of Claim, the Defendant:

1. (a)
   Admits that, subject to Division 2 and 3 of Part 8, Chapter 5 of the Workers Compensation and Rehabilitation Act 2003 (WCRA), it owed a duty to the Plaintiff to take all reasonable steps to:

1. Avoid or minimise the risk of reasonably foreseeable harm to the Plaintiff whilst she was engaged upon her employment with the Defendant;

2. Avoid exposing the Plaintiff to risks of personal injury of which the Defendant knew or ought reasonably have known;

3. Provide the Plaintiff with a safe place of work;

4. Provide the Plaintiff with a safe system of work.

2. (b)
   Admits that there was an implied term in the contract of employment between the Plaintiff and the Defendant to similar effect as the duties set forth in (a) hereof;

3. (c)
   Save as expressly admitted in sub-paragraph (a) and (b) hereof, the Defendant denies the allegations set forth therein and believes the said allegations to be untrue because they constitute an incorrect statement of legal principle.

4. The Defendant does not admit the allegations of fact contained in paragraph 4 of the Statement of Claim because despite reasonable enquiry, the Defendant remains uncertain of the truth or falsity of the said allegations, and the said matters are solely within the knowledge of the Plaintiff.

7. Save to the extent that the Defendant does not admit the circumstances of the alleged Incident (as defined in paragraph 4 of the Statement of Claim) for the reasons set forth in paragraph 4 hereof, the Defendant otherwise admits the allegations of fact contained in paragraph 6 of the Statement of Claim.

8. The Defendant denies the allegations of fact contained in paragraph 7 of the Statement of Claim, and believes the said allegations to be untrue because, by the matters set forth in paragraph 6 hereof:

1. (a)
   The Defendant recognised the presence and risk posed by the presence of feral pigs on the TCF in a timely fashion;

2. (b)
   The Defendant responded reasonably to the said risk by the implementation of the Control Activities;

3. (c)
   The Plaintiff was at all times aware of the possibility of the presence of pigs on the TCF, and had actual knowledge prior to the alleged incident (as defined) of the presence of the subject pigs;

4. (d)
   The behaviour of feral pigs was not something over which the Defendant has control, save to the extent it took all reasonable precautions to minimise their presence on the TCF and alert members of its staff to the possibility of their presence.

12. In the event this Honourable Court determines that the Defendant is liable to the Plaintiff for the circumstances of the alleged Incident, the said Incident arose as a consequence of the Plaintiff’s own negligence in that she:

1. (a)
   Failed to maintain a proper or adequate lookout;

2. (b)
   Failed to observe the presence of the gutter into which she stepped;

3. (c)
   Failed to avoid or step clear of the said gutter;

4. (d)
   Proceeded towards the position of the pigs despite having earlier identified them;

5. (e)
   Failed to avoid stepping into the gutter and/or associated depression.

6. [6]
   Of particular relevance, and I shall come to them a little later in these reasons, are references contained within paragraph 4 and paragraph 12(e) of the Defence.  Firstly, it is noteworthy that in paragraph 4, the Applicant does not admit the allegations of fact contained in paragraph 4 of the Statement of Claim, because, as they indicate:

Despite reasonable inquiry, the defendant remains uncertain of the truth or falsity of the said allegations and the said matters are solely within the knowledge of the plaintiff.

7. [7]
   Additionally, and perhaps even more significantly however, paragraph 12(e) notes that the incident arose as a consequence of the Respondent’s own negligence in that she failed to avoid stepping into the gutter and/or associated depression.  The relevance there, will become obvious when the argument that arises is noted.

8. [8]
   An amended Statement of Claim was filed on the 10th of September 2018.  The amended Statement of Claim corrects, as I noted previously, the issue with regard to gender, as referred to in paragraph 1 of the Statement of Claim, and denied in paragraph 1(c) of the Defence. It then goes on to provide, what is suggested by counsel for the Respondent,  is a significantly greater degree of particularity, without, in fact, raising a new cause of action, including one which might substantially arise from the same facts as pleaded in the original Statement of Claim. Relevant here, are the following paragraphs:

4. At or about 8:45pm on 26 April, 2015 (the date of the incident) at the said Correctional Centre:

1. (a)
   The Plaintiff,  the course of her said employment, was walking from the female prison farm to the main correctional centre, on a grassed footpath (the footpath) at night;

2. (b)
   The Plaintiff noticed some feral boars that is, undomesticated pigs, in the area;

3. (c)
   A boar that the Plaintiff has not seen and which was apart from the feral boards that she did notice came up an embankment and reared up at the Plaintiff and charged at a fence, causing the Plaintiff to be startled and to stumble catching her right foot and ankle in a gutter, causing injury (“the incident”).

Particulars of the Fall

1. The area of the footpath where the Plaintiff fell ran adjacent to a sealed road with a cement gutter;

2. The footpath was generally uneven but had a particular depression where it met with the top of the gutter; and

3. When the Plaintiff was started and stumbled, her right foot caught on the ledge created by the edge of the gutter and the depression in the footpath; and

4. As a consequence of catching her foot on the said ledge, the Plaintiff fell backwards, landing heavily on her back and buttocks.

5A  As at the date of the incident:

1. (a)
   The footpath was used regularly by workers, including the Plaintiff, to traverse the grounds between the female prison farm and the main correctional centre;

2. (b)
   The footpath was grassed, worn in placed, and uneven;

3. (c)
   There was a depression where the footpath met the top of the gutter;

4. (d)
   The footpath and areas adjacent to it were generally poorly lit; and

5. (e)
   At the place where the Plaintiff fell and the areas adjacent to it there was very little lighting at all.

5B At the time of the incident, the Plaintiff was unable to see the particular boar that startled her until it was quite close and charging at her because the area was very poorly lit.

7. The incident referred to in paragraph 4 hereof was caused by the negligence and/or breach of contract of the Defendant, its servants or agents in that it:

Particulars:

1. (a)
   Failed to provide a safe place of work by failing to take reasonable care to ensure that the footpath was:

1. Properly maintained, or maintained at all, such that it did not have a depression between the footpath and the gutter, which formed a ledge;

2. Improved as a cement path, where this would have negated any unevenness of surface or depressions, such that there would not have been any part if it on which the Plaintiff might have caught her foot;

3. Adequately lit, so that:

1. Feral boards could be seen at a time well prior to them being proximate to works, including the Plaintiff, who may be required to traverse the footpath at night; and

2. The Plaintiff could see the said depression adjacent to the gutter and the ledge created thereby;

2. (b)
   Failed to provide a safe system of work, where a safe system would not have required the Plaintiff to traverse the grassed, uneven footpath at night between the female prison farm and the main correctional centre, thereby exposing her to an unnecessary risk of injury from the presence of a feral boar and the presence of the depression in the footpath adjacent to the gutter, which created a ledge;

3. (c)
   Failed to provide any or adequate assistance;

4. (d)
   Required, allowed or permitted the Plaintiff to perform a task which the Defendant knew or ought to have known unreasonably exposed her to an unreasonable risk of injury, namely to traverse the grassed uneven footpath at night when it knew or ought to have known that:

1. The footpath was inadequately lit;

2. There were feral boards which might charge at and startle workers, including the Plaintiff;

3. The footpath was uneven and no steps had been taken by the Defendant to make it even;

4. The lack of adequate lighting concealed not only the presence of feral boars that might charge at workers, including the Plaintiff, but also the depression in the footpath and the ledge created where it met the top of the gutter;

5. (e)
   Failed to warn or instruct the Plaintiff as to the risk of carrying out her work;

6. (f)
   Failed to adequately assess the Plaintiff’s work tasks in the context of safety and to design, implement and enforce safe working practices;

7. (g)
   Failing to identify and eliminate a hazard or hazards in the workplace, namely:

1. The hazard caused by boars in the vicinity of areas where workers, including the Plaintiff, were required to traverse and, particularly to traverse at night;

2. The hazard caused by the depression in the footpath adjacent to the top of the cement gutter, causing a ledge;

3. The hazard created by absence of adequate lighting in areas where workers, including the Plaintiff, were required to traverse at night, where the dark had the ability to conceal the presence of feral boards, as well as the presence of the depression in the footpath;

4. Thereby, failing to identify the hazard created by the combination of matters pleaded in sub-paragraphs (i) to (iii) above;

8. (h)
   Failing to conduct regular inspection of the Correctional Centre to alleviate the element of risk associated with the existence of feral boars on the grounds of the Correctional Centre;

9. (i)
   Failed to design, implement and/or maintain a system of work and work practices and procedures which involves the reporting of potential risk factors;

10. (j)
    Failed , in a timely way, that is, any time prior to the date of the incident, to remove the feral boars from the grounds of the Correctional Centre to prevent risk of injury;

11. (k)
    Allowed or permitted the existence of the feral boars to rapidly increase in numbers and become a hazard/nuisance and/or pest to persons present on the grounds of the Correctional Centre, including the Plaintiff;

12. (l)
    Further and/or in the alternative, the Defendant, by its servants or agents, was in breach of its statutory duty to the Plaintiff pursuant to the provisions of the Work Health & Safety Act 2011.

7A The negligence and/or breach of contract pleaded in paragraph 7 above caused the Plaintiff’s injuries because:

1. (a)
   If the Defendant had removed the hazard created by feral boars, and but for its failure to do so, the Plaintiff would not have been startled by a feral board and would not have stumbled and fallen as pleaded above;

2. (b)
   If the Defendant had caused the lighting of the footpath to be adequate, and but for its failure to do so, the Plaintiff would have been able to see the feral boar that charged her before it charged her and it is more probable than not that she would not have been startled by the board when was closer to her, causing her to stumble;

3. (c)
   If the Defendant had caused the lighting of the footpath to be adequate, and but for its failure to do so, the Plaintiff would have been able to see the depression in the footpath where it met the gutter, and may not have stumbled back in such a way as to catch her foot on the ledge thus created (that is, she would have known to be particular [sic] vigilant in her footing to void the ledge);

4. (d)
   If the Defendant had caused the lighting of the footpath to be adequate, and but for its failure to do so, if the Plaintiff had been startled by a feral pig, she may still have stepped back but it is more probable than not that she would not have caught her foot on any ledge as had been created the depression where the footpath met the top of the gutter;

5. (e)
   If the Defendant had not required the Plaintiff to traverse the footpath at night, it is more probable than not that she would not have been exposed to the risk of injury the subject of this proceeding; and

6. (f)
   If the Defendant has taken each or any of the abovementioned steps, it is more probable than not that the Plaintiff would not have suffered the said injuries.

9. [9]
   Only 10 days after the amended Statement of Claim was filed, an application was filed by the Applicants, seeking to have various paragraphs of the amended Statement of Claim struck out.  It was also noted that leave should be refused to amend the Statement of Claim in terms of those amendments.

10. [10]
    An Amended Application was, in fact, filed by leave on the 19th of November 2018.  It simply made reference to some relevant additional inclusions in the application, including specifically, the reference to certain words in paragraph 7(b) of the Amended Statement of Claim, as well as the inclusion in proposed order 3, contained within the Amended Application, of the word “pay” in respect of the Applicant’s costs of the application.

11. [11]
    I provide that particular detail in relation to this application, so as to ensure that it is clear what might be the subject of the dispute between the parties.  Quite simply, the applicant seeks, by one manner or another, to disallow the amendments to the Statement of Claim, as contained in the amended Statement of Claim filed on the 10th of September 2018.

12. [12]
    As detailed in Counsel’s Outline, it is noted that the basis of the orders sought are that the Respondent requires leave under rule 376(4) of the Uniform Civil Procedure Rules, and further that the amendments should be struck out on the grounds that they raise a new cause of action, not arising from substantially the same facts as detailed in the original Statement of Claim.

13. [13]
    It is acknowledged, on the part of the applicant, that rule 376 of the UCPR 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 of proceeding was started, has ended.  And it is noted here, that that is the case.  But what is then submitted, is that once the rule is engaged, it is the sole source of the Court’s power to permit amendment, adding a new cause of action outside of the limitation period.

14. [14]
    Rule 376(4) of the UCPR specifically provides that the Court may give leave to make an amendment to include a new cause of action, only if:

1. (a)
   the Court considers it appropriate and

2. (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.

15. [15]
    To allow such an amendment to be made, it is argued in accordance with Thomas v State of Queensland [2001] QCA 336, that there will commonly be three separate questions which are required to be considered.  They are outlined in paragraph 16 to 19 of the decision, and can be summarised as follows:

1. (a)
   is there a new cause of action;

2. (b)
   does it arise out of substantially the same set of facts and

3. (c)
   if so, would there be prejudice to the Applicant to allow the new cause of action to be pleaded.

16. [16]
    Here, it is submitted, that the Statement of Claim filed on the 31st of May 2018, is solely based on the assertion of a duty which has been breached on the part of the Applicant, to take reasonable steps to control the feral pig population on the property.  It is specifically contended that there is no reference, at all, to the adequacy of the lighting at the time of the incident, and further that there is no reference to a depression or hole in the footpath.  I accept that that, on the face it, appears clearly to be the case, and that there is no reference to lighting or to a depression on the footpath.

17. [17]
    However, there is, as was emphasised by the Respondent, a clear reference to the incident occurring at about 8.45 pm on the 26th of April 2015, and that it occurred, therefore, in the night-time.  It is suggested that, at the very least, that gives rise to some obvious and direct connection with the pleadings contained within the Statement of Claim, filed on the 31st of May 2018.

18. [18]
    In the submissions provided in the Outline on behalf of the Applicant, it is noted at paragraph 12 as follows:

The original Statement of Claim does not place the Applicant on notice of an allegation of negligence based on either the confirmation of the footpath, or the adequacy of the lighting.

19. [19]
    In that regard, however, there is clearly at least some anticipated reference to the conformation of the footpath, and as referred to in the amended Statement of Claim, a depression in that the Defence, as I noted at paragraph 12(e), specifically makes reference to the Respondent failing to avoid stepping into the gutter and/or associated depression.  I shall come to the relevance of that statement a little later.

20. [20]
    The Applicant therefore contends that the amended Statement of Claim raises an entirely different case, rather than that which is said to be the only case pleaded in the original Statement of Claim, a duty to control feral animals.  It is suggested that the Respondent now raises the case based on liability attaching to the Applicant with regard to the state of repair of the footpath, as well as associated lighting.  It is contended that there was no inkling of such a case to be found in the original Statement of Claim, and on the face of it, that might be true.

21. [21]
    But, the Defence clearly indicates that there is at least some perception of issues that might arise with regard to factors surrounding the incident that gave rise to the Respondent stumbling.  Such considerations specifically arose in Borsato v Campbell [2006] QSC 191 where Justice McMurdo observed as follows:

The term ‘cause of action’ was defined in Cooke v Gill [1873] LR 8 CP 107 116 as being ‘every fact that is material to be proved to entitle the Respondent to succeed’, a definition which many judgments have employed in the context of this rule or its equivalent.

22. [22]
    His Honour then goes on to note that:

It has not been applied literally, because to do so would otherwise mean that ‘any new fact to be added to a Respondent’s case would be treated as raising a new cause of action which required leave in the context of a rule such as rule 376(4).

23. [23]
    His Honour then went on to note that there has been endorsed, particularly as a result of a decision in Thomas v State of Queensland:

A fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended.

24. [24]
    Justice McMurdo noted, and it was emphasised by Counsel for the Applicant, the following:

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 of action 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 the Respondent’s case is described.

25. [25]
    Thereafter, the applicant argues that the elaboration of particulars contained within the amended Statement of Claim is not able to be described as a further particularisation of the original claim of breach of duty, but rather constitutes a new course of action.  In support of that contention, reference was made also to Wolfe v State of Queensland [2008] QCA 113, where the Court rejected an argument that an original Statement of Claim referring to circumstances where a Respondent lost control of a vehicle because of “welts” on a road, should also have added an allegation that the road was negligently constructed in a manner which permitted the formation of the welts.

26. [26]
    There the Court considered that those two matters involved different breaches, one relating to the maintenance of the surface of the road and the other in respect of the construction of the road, and specifically rejected any argument that those breaches both arose from substantially the same facts, insofar as they addressed what was referred to as, “maintenance issues” and the same accident.

27. [27]
    Thereafter, reference was made to the comments of His Honour, Keane JA as he then was, in Wolfe v State of Queensland, and in particular, made reference to the comments of Justice Kirby in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5.  At paragraph 13, the following was said:

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.

28. [28]
    Thereafter, referring to Romeo v Conservation Commission of the Northern Territory, it was noted:

It is the reasonableness of an Applicant’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 Applicant has met the requisite standard of the reasonable person must be assessed on the facts of the case.

29. [29]
    It was then argued that in the circumstances of this case, the two new breaches asserted, the maintenance of the footpath and the provision of lighting, were wholly distinct from the original breach relating to a failure to control or cull feral animals,  and therefore, it was ultimately argued that any attempt by the Respondent to lead evidence of a failure to maintain the footpath, or, to criticise or challenge the adequacy of the lighting under the original pleading would be met with the successful objection on the basis its relevance.  I shall come to that submission shortly, when commenting upon the submissions of the Respondent.

30. [30]
    Finally, Counsel for the applicant argued that the Respondent was not able to rely upon imprecise, vague or generalised expressions in the Statement of Claim which might then be able to be further particularised or explained.  Reference there was particularly made to the generalised statement contained within the original Statement of Claim, “to a failure on the part of the Applicant to provide the Respondent with a proper and safe place of work.”

31. [31]
    Reference then was made to the comments of Fraser JA in Westpac Banking Corporation v Hughes [2011] QCA 42, where His Honour noted the comments of Pincus JA in Draney & Anor v Barry & Ors [1999] QCA 491, that one could not avoid the plain intention of what is now contained within Rule 376(4) of the UCPR, by inserting in a pleading, a vague allegation raising no identifiable cause of action.  Pincus JA noted that:

The spirit of the UCP Rules would not be respected if the question whether what are in substance new causes of action should be allowed to be added out of time is made to depend upon the presence or absence in the existing pleading of an allegation of misconduct which is so vague as to be devoid of any ascertainable meaning.

32. [32]
    It was contended strongly on the part of the applicant in this matter that there could be no possible basis upon which it could be suggested that the issues of lighting or the maintenance of the footpath arose from the generalised statement with regard to the provision of a safe place of work. 

33. [33]
    Interestingly, Counsel then argued that if there was to be some connection possibly found, for example, arising out of substantially the same set of facts, there was still difficulties because there was no reference to an adjacent depression, ledge, hole or unevenness in the footpath surface, or to issues with regard to the lighting. 

34. [34]
    It is argued, therefore, that the amendments seek clearly to introduce a new cause of action which does not arise out of substantially the same set of facts, and that the Statement of Claim should be struck out.  Argued in the alternative, however, is that even if it were found to be the case that they arose out of the same set of facts, the question of prejudice looms so large that there would still need to be a refusal of leave to amend in that regard. 

35. [35]
    Reference in the submissions is made to the issue of the fairness, or perhaps, more accurately, unfairness to the Applicant, in losing the benefit of its limitation defence, because of the length of time that has elapsed since the injury in April of 2015.  That is particularly referred to in paragraph 30 of the written submissions, where there is actual prejudice alleged as a result of there being no CCTV footage of the incident. But of course, that did not exist either way, as well as no contemporaneous investigation of the site conducted at the time of notice being given, in relation to the incident. 

36. [36]
    But again, it is clear from the evidence of Mr Zappert, there was little that could be investigated, particularly noting, as I have already, that the Defence specifically makes reference to the fact that, “The Applicant remains uncertain of the truth or falsity of the said allegations and said matters are solely within the knowledge of the Respondent.”

37. [37]
    Additionally, it is contended that there is prejudice that arises as a result of there having been significant rainfall since the incident.  It is suggested 2.69 metres of rain fell between May of 2015 and September of 2018, such that what may or may not have been the circumstances with the footpath or walkway on the 26th of April 2015 will radically have changed.

38. [38]
    Again, however, that should be looked at in conjunction with the fact that it’s also suggested that there is prejudice, as there are no contemporaneous photographs of the area of the alleged incident, but that was open to be obtained by the Applicant, particularly noting that an indication was given of the incident, by the Respondent, at a time contemporaneous with the incident. 

39. [39]
    Ultimately, the Applicant says that there is no basis to allow the amended Statement of Claim, firstly, because what is sought to occur is the introduction of a new cause or causes of action which do not substantially arise from the same facts, and even if it were to be contended that they did arise from the same facts, it would be inappropriate to allow it to occur because of the prejudice to the Applicant. 

40. [40]
    The Respondent’s position is to say that the application is misconceived and that, in fact, the application in no way seeks to introduce a new cause of action and in fact, further, that it does not even seek to rely upon Rule 376(4) of the Uniform Civil Procedure Rules, as it arises out of same or substantially the same set of facts.  Rather, it is argued on the part of the Respondent that the amendment that is sought to be made, pursuant to the amended Statement of Claim, arises pursuant to the provisions of Rule 378 of the Uniform Civil Procedure Rules, which is in these terms:

Before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave from the court is not required under these Rules.

41. [41]
    The argument succinctly, is that there is a clear indication of the basis upon which the further information or elaboration is detailed in the Amended Statement of Claim.  What is argued on the part of the Respondent, is that the Amended Statement of Claim does not plead a new cause of action but rather, provides that elaboration and explanation which is necessary in relation to fully explaining and understanding the circumstances of the incident. 

42. [42]
    In that regard, I was referred to Pianta v BHP Australia Coal Ltd [1996] 1 Qld R 65, where it was noted that:

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.

43. [43]
    Reference was then made similarly to Borsato v Campbell, and interestingly, to exactly the same quotation of Justice McMurdo as was referred to by the Applicant, and went on to note that His Honour identified the distinction between amendments to defend the rule from those that don’t, are to be generally regarded in a crucible, understood more in terms of a broad brush approach directed to whether amendments can properly be regarded as particulars of the cause of action already pleaded.  His Honour then went on to specifically to indicate that it involves a question of degree examined by reference to the level of abstraction at which a particular case might be described. 

44. [44]
    Interestingly, both the Applicant and the Respondent to this application seek to rely upon that explanation by Justice McMurdo in relation to strengthening their case.  However, in this instance, the Respondent notes the fact that there is assistance in determining the question of degree, arising from a process that would properly contemplate how a particular matter would proceed at trial, in the absence of the amendments thereafter. 

45. [45]
    It is submitted that what was pleaded in the original Statement of Claim would, at trial, be the subject of elaboration or explanation.  In other words, evidence would be called from the Respondent with regard to matters such as, her walking on a grass footpath at night, what she could or could not see, particularly with respect to the feral animals, and it was submitted she would give evidence as to why or how she stumbled and what would flow from that would be evidence of the state of the footpath and the degree of illumination.  It would also be submitted that there would be, as part of that proper elaboration, comment upon whether there might or might not have been depressions in the footpath. 

46. [46]
    Additionally, it was argued that the Applicant had notice of the particulars of the fall, its mechanism, and all matters set out in the amended pleading, for a period of time which was significant and well before even the original document was filed.  With respect, that must be the case in light of the reference in paragraph 12(e) of the Defence, to a depression. 

47. [47]
    Accordingly, it is submitted that that information, along with other information that is clearly detailed, for example arising from the affidavit of Edward Harry Zappert including particularly the details of the Respondent’s description of the evidence to various relevant persons, as set out in paragraphs 14 through 37 of the affidavit filed on the 15th November 2018, are such that, in conjunction with the pleadings there is nothing that could be suggested as a new cause of action. 

48. [48]
    Rather, from the Respondent’s perspective, it is submitted that a proper analysis of the amended Statement of Claim and the pleadings contained therein simply particularises the facts and matters that were originally pleaded, and rather than introducing a new cause of action, they more specifically provide that elaboration and additional information that would in any event be led at trial.

49. [49]
    I am of the view that that accurately and appropriately reflects the position in relation to this matter.  More specifically, I am satisfied absolutely that no prejudice can properly be suggested or asserted on behalf of the Applicant, having regard to the investigations that they have undertaken already and the opportunities that were available particularly as a result of information available to them from as early as the 26th of April 2015, the date of the incident occurring.  It is clear that there was no investigation that could have relevantly been undertaken after the original pleading was filed that would in any way place the Applicant in a different position to that which it presently finds itself in. 

50. [50]
    Accordingly, the only proper course to follow is that the application should be dismissed and I so order.  I will reserve the costs of the application to the final determination, if required.