Roza Jambrovic v ACT Health Authority [1991] ACTSC 83 (11 October 1991)

SUPREME COURT OF THE ACT

ROZA JAMBROVIC v. ACT HEALTH AUTHORITY
S.C. No. 1087 of 1985
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Practice and Procedure - Amendment - Statement of Claim - Particulars - Limitation Period Expired - New Cause of Action - Negligence - Employer - Safe Plant and Equipment - Susceptibilities peculiar to Plaintiff - Additional Facts - Not New Cause of Action

Weldon v Neal (1887) 19 QBD 394

Golski v Kirk (1967) 72 ALR 443

HEARING

CANBERRA
11:10:1991

ORDER

Leave be given to the plaintiff to amend the Statement of Claim by adding to the particulars the matters set out in paragraphs 7(l), 7(m) and 7(n) set out in the document attached to the Notice of Motion dated 19 September 1991.

DECISION

This is an application for leave to amend a Statement of Claim by adding a number of particulars of negligence.

2. The plaintiff was injured when she was scalded by very hot water while she was at work, where she was employed by the defendant as a waitress.

3. The accident happened on 12 December 1982. The Writ was issued on 23 September 1985. To meet the needs of the case should this application be refused, the amended Notice of Motion seeks an extension of time within which she might institute proceedings based upon the allegations comprised within the proposed amendments to the particulars. Such an application is not yet within the jurisdiction of the Master, so no evidence was led relating to it, and the application for that relief is in abeyance pending the outcome of this application.

4. The circumstances alleged to give rise to the claim, as set out in the Statement of Claim, were, shortly, that the plaintiff was making tea in an urn, using hot water stored in a tank fixed to the wall. The tank was fitted with a metal spout which could be moved from side to side. The plaintiff had put hot water into an urn, and turned off the hot water. As she moved the spout to one side it passed over her right hand, and scalding water leaked on to her right hand as it did so. She was also splashed on her body, and felt faint. In an endeavour to stop herself falling, she overturned the urn and was severely scalded.

5. The particulars of negligence set out in the original statement of claim contained the usual rote repetitions of broad breaches of duty, such as failing to take precautions for the safety of the plaintiff, or exposing her to a risk of injury of which the defendant was aware. Pleadings in general would be more useful if such generalities were excluded. They give neither the opponent nor the Court any idea of what the case is about, and do not help in any way to define the factual issues.

6. Those particulars which did descend into meaningful detail, however, all related to precautions that might have been taken to prevent injury to the plaintiff in the circumstances, such as providing a handle to move the spout, preventing leakage from it, fixing the urn to stop it overturning, or providing protective gloves. They could all, it seemed to me, be grouped under the general heading of failure to provide safe plant and equipment.

7. The particulars which the plaintiff wishes to add are as follows:
"1) Causing or permitting the plaintiff to undertake

tea making operations involving the use of extremely hot
or boiling water at a time when the defendant was aware
that the plaintiff was likely to suffer from blackouts or
dizzy spells which caused her to lose balance.
m) Making excessive demands of the plaintiff in terms
of her work load in such a way as to cause the plaintiff
to perform her work in an unduly hasty manner;
n) Causing or permitting the plaintiff to work in circumstances
of excessive pressure due to a shortage of staff."

8. Those particulars describe a failure to take into account susceptibilities peculiar to the plaintiff which made the workplace unsafe for her individually. An essential element of the complex of facts that the plaintiff would need to prove in order to succeed on those particulars would be the state of the defendant's knowledge about her liability to suffer blackouts or dizzy spells, or about the likely consequences for her of working under excessive pressure or with undue haste.

9. The defendant submits that to allow the amendment would be contrary to the settled rule of practice referred to in Weldon v Neal (1887) 19 QBD 394, by which a plaintiff should not be allowed to introduce by amendment a new claim which would be statute barred if brought by fresh proceedings at the time of the amendment.

10. It is true that the amendment would not introduce a new cause of action in a technical pleading sense - the claim remains one based upon failure by the defendant to take reasonable care for the safety of its employee.

11. But, it is submitted, it is the factual reality of the claim and of the matter sought to be introduced that must be examined, not categorisation according to technical pleading rules.

12. It is not necessary for me to repeat all that is set out in the judgments of the Federal Court in Golski v Kirk (1967) 72 ALR 443, which is directly binding on this Court.

13. I respectfully adopt and attempt to apply the principles laid down in that case, which to me appear most succinctly and accurately to be stated by Kelly J. at 451 as follows:

"In my opinion, a plaintiff should not be allowed to
introduce new claims by amendment which in substance
amount to the bringing of a new action for claims already
barred by statute. However, where the proposed amendments
do not change the cause of action but do no more than
particularise the facts by which the respondent proposes
to sustain it even though the facts sought to be brought
forward under the amendment are quite different from those
originally alleged, amendment will be allowed.
In reaching this conclusion I consider it unnecessary to
give any further consideration to the question whether a
new cause of action depends on a substratum of facts
freshly pleaded, on a new claim in law or on a combination
of both. In my opinion, the applicable considerations are
those in the two propositions set out above."

14. It is, I think, conceded by counsel for the defendant that the proposed amendments do not introduce a new cause of action in a technical sense, as they would, for example, if it were sought to rely upon some breach of statutory duty.

15. But it seems clear to me that the proposed amendment does no more than particularise the facts by which the plaintiff proposes to demonstrate that the defendant caused harm to her by failing to take reasonable care for her safety, even though some of the facts sought to be brought forward under the amendment are additional to those that would have been involved in the case as originally framed.

16. I therefore grant the application. I give leave to the plaintiff to amend the Statement of Claim by adding to the particulars the matters set out in paragraphs 7(l), 7(m) and 7(n) set out in the document attached to the Notice of Motion dated 19 September 1991.

17. I note that costs of previous interlocutory proceedings on 4 September 1991 have been reserved. I will hear the parties on the question of costs of and incidental to this application, at a later time if counsel so wish.