Supreme Court allows amendment to plead driver negligence after defendant raised it in defence.

THE SUPREME COURT

No. 301/2005

Murray C.J.

Kearns J.

Finnegan J.

BETWEEN

CATHERINE ALLEN

PLAINTIFF/RESPONDENT

AND

IRISH HOLEMASTERS LIMITED

DEFENDANT/APPELLANT

Judgment delivered on the 27th day of July 2007 by Finnegan J.

The plaintiff’s claim in this matter is brought pursuant to the Civil Liability Act 1961 Part 4 and arises out of the death of the plaintiff’s

husband on the 8th May 1997. In the course of his employment he was driving a Nissan Vanette Cargo the property of the defendant

his employer. The accident is described in the statement of claim as follows –

“On or about the 8th May 1997 a Nissan Vanette Cargo owned by the Defendant and driven by Liam Allen in the course of

his employment collided with a truck registration number 96C 10433 driven by Paddy O’Riordan and owned by Horgan

Brothers of Macroom, County Cork. In the course of the collision the heavy load carried by the Defendant’s van which,

which was unsecured, was propelled forward causing extensive personal injuries from which Liam Allen died.”

While the particulars of negligence are in general terms they are directed to a plea that the defendant failed to ensure that the heavy

load in the van was properly secured.

The plaintiff furnished the following reply to a request for particulars –

“All of the equipment carried in the cargo compartment moved forward at the pre-impact speed of the van. All of the

equipment listed in the schedule attached hereto struck the driver and the passenger seats at a speed in the order of 40

miles per hour. Some of the items carried weighted in excess of 25 kilograms. This weight moving at speed killed the

deceased.”

The attached schedule gave in respect of each item of equipment either the actual or estimated weight.

The defence delivered consisted largely of denials: it was specifically denied that the van contained a heavy load. It was pleaded

that the injuries sustained by the deceased and which resulted in his death were caused by his sole negligence and in the alternative

that he was guilty of contributory negligence with the following particulars –

(a) Driving his vehicle at an excessive speed in the circumstances;

(b) Failing to apply his brakes in sufficient time or at all;

(c) Failing to have due regard to the nature of the roadway in question;

(d) Taking a bend at an excessive speed;

(e) Failing to have due regard to the prevailing road and weather conditions;

(f) Driving on his incorrect side of the road;

(g) Failing to keep any or any proper control over his vehicle;

(h) Failing to observe the approach of a motor truck in the opposite direction.

The plaintiff did not deliver a reply. Notice of trial was served on the 11th August 2004. On the 14th February 2005 the plaintiff

furnished further and better particulars of negligence adding an additional plea as follows –

“1. Overloaded the motor vehicle which the plaintiff was driving.”

The defendant objected to this by letter dated 24th February 2005. By letter dated 23rd March 2005 the plaintiff sought consent to

amendment of the statement of claim and by letter dated 31st March 2005 the defendant refused to consent. Accordingly a motion

was issued returnable for the 20th June 2005 seeking leave to amend the statement of claim. The plaintiff sought to add to the

paragraph on the statement of claim quoted above the following sentence –

“The said collision was caused because the said Vanette vehicle was grossly overloaded by the defendant rendering it

unstable and incapable of being properly controlled.”

In addition further particulars of negligence relating to the amendment were sought to be added. On the hearing of the motion the

learned High Court judge granted leave to the plaintiff to amend the statement of claim as sought. The defendant appeals against

that order.

The plaintiff’s application was grounded on an affidavit of her solicitor, Michael Quirke, who deposes that he engaged the services of

an engineer Mr Jack O’Reilly. Mr O’Reilly advised on information available to him, which was incorrect, that the vehicle was not

overloaded. In January 2001 another engineer was engaged and a final report was received from him dated 26th February 2004 and

this concluded that the load being carried caused the vehicles GVW to be exceeded and that this would have adversely affected its

handling. Further as the vehicle’s load was not secured or restrained this would have led to a shifting of the vehicle’s centre of

gravity which would also have adverse handling implications for the vehicle. A copy of this report was sent to Mr O’Reilly who in turn

prepared a further report dated 24th June 2004. The effect of both these last mentioned reports is that the extent to which the van

was overloaded would produce dramatically abnormal driving characteristics.

The defendant opposes the amendment on a number of grounds. The first is delay. It is clear from the pleadings that an inspection of

the van containing the equipment was carried out on the 27th March 1999. A list of the equipment was prepared and indeed was

annexed to the reply to particulars delivered dated 26th January 2000. In an affidavit filed on behalf of the defendant Susan O’Reilly

solicitor deposes –

“The proposed amendment to the statement of claim represents an entirely new case. Heretofore, the case the

defendant had to meet was that the death of the plaintiff’s husband had been caused by reason of the load in the back

of the Vanette moving forward upon impact. It is clear that the case which the plaintiff now seeks to make is that the

collision itself between the van and the oncoming truck was caused by the manner in which the vehicle was overloaded.

This would require the defendant to undertake an entirely new investigation of the circumstances of the accident,

including the mechanics of the collision, and I am advised that it would involve engaging the services of a consulting

engineer to inspect the locus of the accident and consult with witnesses etc. At this point the accident locus has

changed and it is not the same as it was at the time of the accident in May 1997 thereby making it impossible for the

consulting engineer to investigate the matter properly.”

The next ground for objecting is set in her affidavit as follows –

“I say that there is a further basis upon which the defendant will be prejudiced in the event that the proposed

amendment is granted. The defendant was insured in respect of the claim until the liquidation of Independent Insurance

on the 21st June 2001. Had this new case been made before that date by the plaintiff, the defendant’s insurers would

have had an opportunity to investigate liability on that basis and may have handed the case in a different manner. If the

proposed amendment is granted, the defendant will have to meet the new case without the benefit of an insurance

company indemnifying it.”

The final ground of objection is that the new claim now sought to be made is statute barred.

As to the first ground of objection delay it is noted that the schedule of equipment furnished with replies to particulars had weights

for each item of equipment but that these are estimated in a number of cases. However for the plaintiff’s claim as originally pleaded

this was sufficient to show that the load was indeed heavy and the weight was otherwise irrelevant. The second engineer was

engaged on the 24th January 2001 on the advice of senior counsel and well in advance of notice of trial being served on the 11th

August 2004. There was delay in obtaining the report the same only issuing on the 26th February 2004 following ongoing

correspondence and discussions. Much of the delay was caused by difficulty in obtaining an identical vehicle upon which to carry out

tests. In all the circumstances the court is satisfied that the delay of itself should not disentitle the plaintiff to the relief sought.

The rules of the Superior Courts, Order 28, rule 1 provides as follows:

“1. The court may, at any stage of the proceedings allow either party to alter or amend his indorsement or pleadings in

such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the

purpose of determining the real questions in controversy between the parties.”

Wiley on the Judicature Acts on the identical rule in the 1905 rules has this to say:-

“By this Rule a Court or Judge is bound to allow all such amendments as may be necessary for the purpose of determining

the real questions in controversy between the parties upon such terms as may seem just”.

He cites with approval the following passage from the judgment of Bowen M.J. in Cropper v Smith 26 Ch. D. 710 –

“There is no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it

can be done without injustice to the other party. Courts do not ext for the sake of discipline, but for the sake of deciding

matters in controversy, and I do not regard such amendment as a matter of favour or of grace.”

Cases cited by Wiley illustrate the late stage at which amendment may be allowed. In Budding v Murdoch 1 Ch.D. 42 the plaintiff

claimed a right to the flow of water along an artificial water course claiming title to do so by Deed or by prescription. He failed on

both grounds at the trial but it appeared that the water course had been constructed by the plaintiff at his expense with a privity of

a predecessor in title of the defendant who had acquiesced. Jessel M.R. permitted an amendment giving the defendant leave to

amend his defence and required both parties to go into further evidence and reserved the costs to that date. In Sassoon v Cababe

W.N. 1879 122 the trespass action the defendant failed to rule the right of way relied upon in his pleading but gave evidence of a

different right of way which of existing would have justified the trespass. The court of appeal held that that evidence should have

been left to the jury and the pleadings amended. In Rowe v Davies 2 Ch. D. 729 Bacon V.C. gave the plaintiff leave to amend his

pleading. But the plaintiff sought to set aside a settlement on the ground of fraud and surprise after a date had been fixed for hearing

the plaintiff’s advisers became aware of an additional ground, that the plaintiff was of infirm mind.

However a plaintiff will not be allowed to add fresh claims which have become statute barred. Again amendment will not be permitted

if the effect is entirely to alter the nature of the case originally made – Nuby v Sharpe 8 Ch. D. 39.

Weldon v Neal was considered by Keane J. in Krops v The Irish Forestry Board Limited and Ryan 1995 2 I.R. 113. In Wedldon v Neal,

Lord Esher said –

“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 statute of

limitations, it would be allowing the Plaintiff to take advantage of her former Writ to defeat the Statute and take 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.”

In England in 1982 the Rules of the Superior Courts were amended so that the court to provide for an amendment may be allowed

notwithstanding that its effect would be to add or substitute a new cause of action if the new cause of action arises out of the same

facts are substantially the same facts as the cause of sanction pleaded. Keane J. proceeded on the basis that the High Court is not

bound by decisions of the English Court of Appeal prior to 1921 although it would not likely depart from a decision of that court which

had been repeatedly acted on in the High Court. He went on to consider whether Weldon v Neal should be applied in Ireland. He held

that where a plaintiff seeks to add a new cause of action arising out of the same facts are substantially the same facts pleaded.

There is no reason why the court should be precluded from permitting such an amendment.

In Croke v Waterford Crystal Limited [2005] 2 I.R. 383 the plaintiff sought to make a number of amendments to a statement of claim.

As against the first defendant he sought an amendment the effect of which would be to claim that he discovered the alleged untruth

of representations in or around 1999 whereas in its original form the statement of claim did not give any date. The first defendant had

pleaded the statute of limitations and this amendment was relevant to that plea. Geoghegan J. at p.399 expressed the view that

particulars of the date of knowledge ought properly to be inserted in a reply: however it is prima face necessary amendment for

having the real issues tried and it would be sensible if other amendments were to be permitted that it should be included in the

amended statement of claim.

It is necessary then to consider three matters relied upon by the appellant as to why the court should not exercise its discretion and

allow amendment.

Firstly the defendant says that no good reason as to why the pleas ought to be made were not made in the first instance. There is

an obligation on the party seeking to amend pleadings to give good reason for having to do so. Shepperton Investment Company

Limited v Concast (1975) Ltd, (Unreported, High Court, Barron J., 21st December 1992), McFadden v Dundalk and Dowdallshill

Coursing Club Limited (unreported, Supreme Court, 22nd April 1994 and Palamos Properties Ltd., v Brooks [1996] 3 I.R. 597. In the

last mentioned Flood J. at p.605 said –

“In my opinion these decisions amount to this. That within the facts underlined a claim before the courts there must be

such evidence from which an inference can reasonably be withdrawn as to why the plea which is sought to be introduced

by way of amendment was put in the original defence or express evidence given to explain the failure in a manner which

renders the omission broadly excusable if not actually justifiable.”

Geoghegan J. expressed doubt that the cases relied upon by Flood J. support such a broad proposition but rather that those cases

turned on their own peculiar facts. If delay is not justifiable or excusable then that is a factor to be taken into consideration as part

of the matters to be weighed in deciding whether or not the court will allow amendment. In this case the plaintiff on affidavit has

justified and excused the delay.

Secondly the defendant claims to be prejudiced in that the locus of the accident is not the same as it was at the time of the

accident thereby making it impossible for the consulting engineer to investigate the matter properly in relation to the claim now being

put forward by the plaintiff. The weight which was being carried in the vehicle on the date of the accident has now been calculated

and does not appear to be in dispute. In these circumstances the court is satisfied that an engineer retained by the appellant

notwithstanding the change in locus will be in a position to give evidence as the effect upon the vehicle in terms of handling and

breaking and without reference to any particular locus. The court is not satisfied that any real or substantial prejudice to the

appellant will arise. Thirdly the defendant relies upon the fact that its insurer went into liquidation on the 21st June 2001 twelve

months after the defence had been delivered and that the defendant will now have to meet the case now made without the benefit

of indemnity. The court is not satisfied having regard to the date on which the defence was delivered and the date on which the

insurer went into liquidation is most unlikely that a hearing would have taken place in advance of the insurer going into liquidation.

The court accordingly is not satisfied for any of the reasons relied upon by the appellant that leave to amend should not have been

granted.

The amendment sought raises a new issue in the action. However it is not an issue which is raised by the plaintiff but rather one

raised by the defendant in its plea of negligence and contributory negligence against the plaintiff. The driving of the vehicle was not

an issue raised by the statement of claim. The situation accordingly is identical to that dealt with by Geoghegan J. in Croke v

Waterford Crystal Limited and Irish Pensions Trust 2005 2 I.R. 383. There the defendant raised the statute of limitations in its

defence the plaintiff’s response being to seek to amend its statement of claim to plead date of knowledge. Geoghegan J. held that

this was more appropriate to be done by way of reply. Here the driving of the vehicle became an issue arising out of the defence and

it was open to the plaintiff to respond in a reply attributing the accident to the vehicle being overloaded rather than to any

negligence on the part of the driver. It has not done so. As Geoghegan J. remarked in Croke v Waterford Crystal Limited “while it is

true that there are time limits for the delivery of a reply there would have to be extraordinary circumstances in my view for a court to

deprive a plaintiff of the right to adduce a perfectly good answer to a plea of the Statute of Limitations effectively on a time point.”

He would have no difficulty in permitting the plaintiff to deliver a reply. It seems to me that that is the correct approach to adopt in

the present case. The courts should extend the time for delivery of a reply which would deal in terms of the overloading of the vehicle

with a plea of negligence and contributory negligence against the plaintiff.

Allen v Irish Holemasters Limited