IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 503 OF 1993

Between:

SEKOVE ROKOBAU
Plaintiff

and

MARINE PACIFIC LIMITED
Defendant

Mr. R. I. Kapadia for Plaintiff
Mr. S. Inoke for Defendant

DECISION

This is an application by the Plaintiff under Or 20 r 5 of the High Court Rules for leave to amend his Statement of Claim by deleting item 5 thereof and substituting it with the following new item:

"5. Between 1990 and August, 1993 the plaintiff in course of his said employment was engaged in diving. In the course of carrying out his said works he sustained severe injuries."

The existing item 5 reads as follows:

On or about the 1st day of July, 1992 while the plaintiff was acting in course of his employment with the defendants company at the Bay of Islands, Suva the plaintiff sustained personal injuries while recovering the anchor for oil barge owned by the defendant company at about 35 feet depth in the sea.

The writ of Summons in this action was issued on 15 September 1993.

Plaintiff's submission

Mr. Kapadia for the Plaintiff makes the following submission (in his own words):

1.	The plaintiff has been working for the defendant company for many years. His claim is for damages for personal injuries or sickness resulting from the negligence or breach of duties on the part of the defendant company and alternatively, for compensation under the Workmen's Compensation Act.

2.	O.20 r.5. of the High Court Rules provide that "...... the Court may at any stage of the proceedings allow the plaintiff or any party to amend his pleading on such terms as to costs or otherwise as may be just ....."

3.	The medical evidence which we have now received indicates that the plaintiff suffers from diving sickness. This has developed over a period of time and not by just one incident.

4.	The purpose of the proposed amendment is not to introduce any new cause of action, but to clarify that the plaintiff's sickness developed over a period of time. The purpose of the proposed amendment is to seek from the court the determination of the real question in controversy between the parties.

5.	The second objective of the proposed amendment is to give the defendant company adequate notice as to what the case for the plaintiff is from now, so that it does not say at the trial that it was taken by surprise.

6.	There would be no injustice done to the defendant company. There would be no prejudice caused to it.

If there was an insurance cover at the time of the plaintiff's employment, it would still apply.

8.	It is a well established practice for Courts to endeavour to adjudicate on all matters in dispute between the parties possibly in one action rather than to have multiplicity of actions.

As submitted by Mr. Kapadia the claim is under common law and alternatively under Workmen's Compensation Act. The period of limitation under this Act is 6 years and under the Limitation Act it is 3 years. He said that the action commenced within time.

Defendant's contention

The defendant opposes the application on the ground firstly, that the Limitation Act would apply which is 3 years for negligence and for breach of duty for damages for personal injuries (proceedings commenced 15 September 1993 and Application for Amendment is 20 May 1997); secondly, that if the amendment is allowed then "its effect would be to add or substitute a new cause of action which is now statute-barred".

In support of his argument Mr. Inoke referred the Court to a number of authorities particularly on the aspect of what constitutes a "new cause of action".

Mr. Inoke argues that the Plaintiff's claim is very specific (items 4, 5, 7 & 8 of the Statement of Claim). This is an attempt to expand a specific claim. He says that it would prejudice the defendant if the application was allowed as the availability of witnesses after more than seven years will be a problem. He says that a "completely new story" is being set up by the proposed amendment.

Consideration of the Issue

The issue before me involves the consideration of Or 20 r 5 which provides:

"5. - (1) Subject to Order 15, rules 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court 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 issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

(4) An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired.

(5) An amendment may be allowed under 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." 	

The general principles relating to the grant of leave to amend are set out fully in the Rules of the Supreme Court 1967 under Or 20 r5 - 8/6 (the "White Book"). It says, inter alia, that the guiding principle is that all such amendment ought to be made:

".... for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings" (see per JENKINS L.J. in G.L. BAKER, LTD v MEDWAY BUILDING 7 SUPPLIES, LTD (1958) 1 W.L.R. p. 1231).

In this case, what is stated in the above passage is the purpose for which amendment is sought; and when it became apparent to the Plaintiff that the way the case has been framed will not lead to a decision of the real matter in controversy this application was made. On the matter of correcting an error the White Book (ibid) further states that:

"..... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right" (per Bowen, L.J., in Cropper v. Smith (1884), 26 Ch. D. at p. 710-711, with which observations A. L. Smith, L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam, [1896] 1 Ch. at p.112).

In Tildesley v. Harper, 10 Ch.D. pp. 396, 397, Bramwell, L.J., said: "My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise". "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs" (per BRETT, MR., Clarapede v Commercial Union Association, 32 W.R. p. 263); ...."

I have considered the submissions made by both counsel. In the light of the authorities, I do not see any merit in Mr. Inoke's arguments. The consideration of the issue before me has to be dealt with by taking into account the facts already stated in the Statement of Claim which was filed with the Writ. The action was brought within time and hence no question of the provisions of Limitation Act arise here.

Upon a proper analysis of the Statement of Claim, although item 5 speaks of a specific incident which resulted in certain injuries to the Plaintiff, the rest of the Claim and particularly the "Particulars of Injuries" do not refer to that incident alone. Hence it is quite obvious that the claim is in relation to the Plaintiff's suffering arising out of his employment spanning over a period of years. All that is clearly stated in the Statement of Claim. The situation here is that a Claim has already been made and the Plaintiff is merely adding to its legal basis. I consider that it should not cause injustice to the Defendant by allowing the amendment provided however the amendment is not allowed once the limitation period has expired if it "involves a new departure, a new head of claim or a new cause of action". (AUSTRALIAN CIVIL PROCEDURE by B.C. CAIRNS). That is not the case here.

In my view, in this case, apart from clarifying and stating the facts clearly, there is no question of introducing a new cause of action. The Plaintiff has alleged that he has received certain injuries etc. and he stated how they had come about. He will no doubt have to adduce evidence and prove his case. Whether these injuries have arisen out of a single incident or over a period is a matter of evidence. The Plaintiff cannot be prevented from putting his case before the Court because of the nature of the amendment sought and because the defendant is of the opinion that a new cause of action is being introduced and offends the Limitation Act.

In coming to the conclusion to which I have come, I have not overlooked the following principles regarding amendment as stated by LORD ESHER, MR in the leading case of WELDON v NEAL 19 QBD C.A. 394 at 395.

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

This case was brought within the limitation period. On the facts and as stated in the Statement of Claim and in the proposed amendment no "new" cause of action is being introduced within the meaning of WELDON & NEAL (supra). In any case, as stated in the White Book in respect of "power to amend after expiry of limitations period" the following extract from the Notes there is pertinent:

"The provisions of Rule 5 empower the Court to grant leave to amend the writ or pleading in the particular circumstances mentioned in paras. (3), (4) or (5), even though the application for such amendment is made after the expiry of any relevant period of limitation current at the date of the issue of the writ. These powers in no way affect or prejudice the substantive rights of the parties under any relevant Statute of Limitations; nor do they affect or alter the practice of the Court in cases outside the scope of the circumstances mentioned in paras, (3), (4) and (5). On the other hand, in the specified classes of cases mentioned in these paras, Rule 5 regulates afresh the practice which the Court may follow in exercising its unfettered discretion under Rule 8 to amend any document in the proceedings; in these cases Rule 5 regularises the practice of the Court for curing the specified defects in an action begun after the relevant time limit has expired."

The issue of what the term "cause of action" means has been put clearly by LORD WRIGHT in MARSHALL v LONDON PASSENGER TRANSPORT BOARD (1936) 3 All.E.R. 83 as stated below and this I have borne in mind in considering the issue before me:

"The issue is, I think, put as clearly as anywhere in the words of Lord Wright M.R. in Marshall v. London Passenger Transport Board [1936] 3 All E.R. 83, as being whether the new pleading involves "a new departure, a new head of claim, or a new cause of action" (ibid., 87). In other words, is it something essentially different from that which was pleaded earlier? Such a change in character may be brought about, in my view, by alterations in matters of law or of fact, or both. Alterations of fact could possibly be so vital and important as by themselves to set up a new head of claim. On the other hand, more often alterations of fact do not affect the essence of the case brought against the defendant. Lord Wright said of a certain alteration "in my view, therefore, the proposed amendment would, if allowed, have set up a new cause of action, involving quite new considerations, quite new sets of facts, and quite new causes of damage and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries" (ibid., 88). I do not read that passage as implying a prohibition against any alteration in the facts. In each case it must, I consider, be a question of degree." (quoting Mc CARTHY J in SMITH v WILKINS AND DAVIES CONSTRUCTION COMPANY LIMITED 1958 NZLR 958 at 961).

A situation such as the one in this case arose in DORNAN v J.W. ELLIS & CO., LTD (1962) 1 Q.B. 583 C.A. where it was held:

"though the new particulars of negligence were different in quality from the original particulars, they did not raise a new cause of action nor a different case of negligence, but merely invited a different approach to the same facts; and accordingly, although the dilatory conduct of the plaintiff's case was censurable, the court was in the circumstances of the case not precluded by any general rule of practice from exercising its discretion to allow the amendment of the particulars after the expiry of the statutory period of limitation."

This principle is applicable to the case before me. The essence of the Plaintiff's claim here, too, is still the same and the proposed amendment, in my view, does not amount to the introduction of a new cause of action.

After having given the matter serious consideration I have come to the conclusion that I ought to allow the amendment and in support of this view of mine I adopt the following words of DAVIES L.J in DORNAN (supra) at 593:

"The story that is now set up by the plaintiff is the same story as that set up all along, namely, that the plaintiff lost his eye from a piece of the drill which was being operated by Stewart. And, as I think, what is now sought to be done is not to make out a new case of negligence, but to persist in the old story and invite the judge at the trial to approach it, to interpret it, from a different angle or aspect. It is a different approach to the same main story of the accident."

In the outcome, the refusal of the amendment would result in the Plaintiff being unable adequately to present his case resulting in miscarriage of justice. I cannot see how the defendant will be prejudiced by the amendment sought.

For these reasons, in the exercise of my discretion in the light of the Rules and the authorities I allow the amendment sought with costs against the Plaintiff for being dilatory to be taxed if not agreed.

D. Pathik
Judge
At Suva
29 October 1997
HBC0503D.93S