N423

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

EVANS

V

TALAIR PTY LTD

AND

COSTELLO

V

TALAIR PTY LTD

Waigani
Andrew J

14 March 1983
24 June 1983

PRACTICE AND PROCEDURE - National Court - Statement of claim - General indorsement on writ - Whether claim wider than indorsement - Nature of indorsement - Nature of statement of claim - Relationship between indorsement and statement of claim - National Court Rules, O. 5, r. 1.

The indorsement on a writ of summons was as follows:

"The plaintiffs claim is for damages for negligence arising out of the defendant’s use of an aircraft ..."

Two clauses in the statement of claim delivered pursuant thereto raised a cause of action under the Civil Aviation (Aircraft Operators’ Liability) Act (Ch. No. 292), which act provides for the liability of a carrier in substitution for any civil liability under any other law in respect of injury suffered.

On applications to strike out these clauses:

Held:

(1) The indorsement on a writ of summons should be read and construed as a notice of the nature of the plaintiffs claim, the cause thereof and the relief sought and the statement of claim as the specific way of stating the claim so indorsed which is to be litigated.
Renowden v. McMullin (1970) 123 C.L.R. 584 at 595, 596 adopted.

(2) Where it is alleged that a statement of claim asserts a claim not included in the writ the indorsement on the writ governs or determines the essential nature and the extent of the action.
Renowden v. McMullin (1970) 123 C.L.R. 584 at 595, 596 adopted.

(3) In the circumstances the indorsement on the writ of summons raised the question of liability in respect of personal injuries for all damages arising out of the use of the aircraft and the statement of claim defined the nature of the claim in terms of a cause of action within the meaning of the Civil Aviation (Aircraft Operators’ Liability) Act i.e. the indorsement was sufficiently broad in the circumstances to include a claim under the Act in the statement of claim.

Cases Cited:

Graff Brothers Estates Ld. v. Rimrose Brook Joint Sewerage Board and Others [1953] 2 Q.B. 318.
Large v. Large (1877) W.N. 198.
Marshall v. London Passenger Transport Board (1936) 3 All E.R. 83.
Munster v. Railton & Co. (1883) 11 Q.B.D. 435.
Renowden v. McMullin and Another (1970) 123 C.L.R. 584.
United Telephone Company Ltd., The v. Tasker (1888) 59 L.T. 852.

Summonses

There were two applications (heard together) to strike out certain paragraphs in a statement of claim.

Counsel

T. Glenn, for the applicant/defendant.
R. Wood, for the respondents/plaintiffs.
Cur. adv. vult.

24 June 1983

ANDREW J: By consent, these two applications were heard together. In each case the defendant seeks orders that pars. 3 and 10 of the statement of claim dated 25 November 1981, be struck out and that the plaintiffs pay the defendant’s costs of the applications.

Both plaintiffs were passengers in a Cessna 402 aircraft which was operated by the defendant and was in the course of carrying the plaintiffs as charter passengers on an intended flight from Lae to Hoskins airport, Kimbe, New Britain, on 20 March 1980. On the morning of that day the aircraft crashed on the western slope of Mt. Welcher, north-west of Kimbe, and both plaintiffs were injured.

The basis of the applications is that the writ of summons in both cases is issued for a common law action for damages for negligence and that cll. 3 and 10 of the statement of claim plead causes of action additional to the indorsement on the writ and accordingly should be struck out.

The significance of the applications is that under the Civil Aviation (Aircraft Operators’ Liability) Act, (Ch. No. 292), s. 32 provides that the liability of a carrier in respect of personal injury is in substitution for any civil liability under any other law in respect of the injury and by s. 30 the right of a person to damages under the Act is extinguished within two years after the date of the crash. The defendant submits that the plaintiffs issued a writ for a common law action in negligence, as per the indorsement on the writ, and that they cannot get around the time limitation by having clauses in the statement of claim which claim an additional statutory cause of action.

Order 5, r. 1, of the National Court Rules provides:

"Every action shall be commenced by a writ of summons which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy sought in the action".

In both cases the indorsement was in the following terms:

"The plaintiffs claim is for damages for negligence arising out of the defendant’s use of an aircraft ... on or about 20 March 1980, between Lae and Kimbe, Western New Britain".

By O. 6, r. 1, an indorsement must be made on every writ of summons before it is issued. By O. 6, r. 2 the indorsement shall not be invalid by reason of failure to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled.

The plaintiff may by leave of the court or a judge amend such indorsement so as to extend it to any other cause of action or any additional remedy or relief. Order 24, r. 1, provides that when a statement of claim is delivered, the plaintiff may therein alter, modify or extend his claim against any defendant who has appeared, without any amendment of the indorsement of the writ. The statement of claim, when delivered, takes the place of the indorsement on the writ and after delivery of the statement of claim the indorsement ceases to be of consequence: Large v. Large [1877] W.N. 198; Munster v. Railton & Co. (1883) 11 Q.B.D. 435. However the plaintiff cannot, in the statement of claim, completely change the cause of action indorsed on the writ without amending the latter or introduce an entirely new and original cause of action which cannot be conveniently tried with the original claim. The United Telephone Company Limited v. Tasker (1888) 59 L.T. 852.

In Marshall v. London Passenger Transport Board (1936) 3 All E.R. 83, the plaintiff was injured in a collision between his bicycle and a tramcar. He issued a writ claiming damages for personal injuries and consequential loss sustained by reason of the negligence of the defendants, their servants or agents. Further particulars were added by leave which set up a case of neglect to keep the tram track and highway in repair, describing the neglect as a breach of statutory duty. On appeal it was held that the amendment introduced a new cause which if set up in an action commenced at the date of amendment would have been barred by lapse of time, and the amendment must be disallowed. It was also held that the indorsement on the writ being in too general terms, the amendment could not be supported as being within the claims there made.

The relationship between the indorsement and the statement of claim was discussed in Renowden v. McMullin (1970) 123 C.L.R. 584 at 595, 596 where in the joint judgment of Barwick C.J and McTiernan J (although in dissent) the following appears:

"The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiffs claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, e.g. on some occasions identification of the instrument upon which a claim is founded. But insufficiency of the indorsement does not render the writ a nullity. Hill v. Luton Corporation (1951) 2 K.B. 387; Pontin v. Wood (1962) 1 Q.B. 594. On the other hand, the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended see Cave v. Crew (1893) 62 L.J Ch. 530, United Telephone Co. v. Tasker (supra), Moore v. Alwill (1881) 8 L.R. Ir. (C.L.) 245. ‘The statement of claim is the specific way of stating the claim he has endorsed on the writ’ per Dowse B. in Moore v. Alwill (supra)."

"Where it is sought to strike out a statement of claim on the ground that it asserts a claim not included in the writ or to amend a statement of claim the indorsement of the writ governs or determines whether the statement of claim should be struck out or amended as the case may be. The right given to the plaintiff by O. 20, r. 2 of the Victorian Rules", (identical to our O. 24, r. 1), "does not in our opinion require any modification of that statement. The alteration, modification or extension of the claim pursuant to this rule must, in our opinion, remain within the area marked out by the indorsement. The basic nature of the claim in respect of which the action has been commenced may not be changed, however much room there is under the Rules for variation in the statement of facts, or the extent of the remedy or relief sought ..."

"But, while the indorsement of the writ determines the essential nature of the action, it does not define, nor necessarily form part of the definition of the issues for trial. That is done by the pleadings of which the writ does not form part. When a statement of claim has been delivered it will in its finally amended form determine the issues for trial. It will not normally be necessary to refer to the indorsement on the writ of summons to ascertain such issues. Possibly, however, where there is ambiguity in the statement of claim the indorsement may serve to throw light upon the meaning of the statement of claim or of expressions in it. Only inasmuch as the statement of claim can be said to be the initiation of specific issues for trial in the action, can it be properly said that the statement of claim supersedes the indorsement of the writ."

Clearly, the ambit of permissible amendment of the statement of claim will be determined by reference to the terms of the indorsement. If the statement of claim should exceed the indorsement, then it will be struck out. In a case in which an amendment to a statement of claim is sought which raises a cause of action of a kind different to that which is alleged in the statement of claim and it appears that at the date when the amendment is sought that cause of action would be statute-barred if a writ were then issued, the amendment should not be allowed except in very special circumstances: Renowden v. McMullin (supra).

In the present cases the statements of claim were delivered on or about 25 November 1981, and I am satisfied that cll. 3 and 10 raise a cause of action under the Civil Aviation (Aircraft Operators’ Liability) Act and were accordingly raised within the stipulated time period.

I think that the position here is different from the position in Marshall v. London Passenger Transport Board (supra) for in that case the writ claimed damages for personal injuries by reason of the negligence of the defendants, their servants or agents. Then, at a later stage the plaintiff sought leave to amend his particulars by setting up a case of neglect to keep the tram track and highway in repair describing that neglect as a breach of statutory duty. As was pointed out in Graff Brothers Estates Ld. v. Rimrose Brook Joint Sewerage Board [1953] 2 Q.B. 318 at 328, the breach of statutory duty there sought to be raised in Marshall’s case, was an entirely different claim from a claim for negligent driving and was a claim not based on vicarious liability and it involved an amendment raising a quite different set of ideas and different allegations of fact.

In my opinion the position here is that the defendant is well aware of the nature of the case against him and I think that the indorsement is sufficient in its terms to identify clearly the nature of the proceedings. It seems to me that the indorsement raised the question of liability in respect of personal injuries for all damages arising out of the use of the aircraft and that the statement of claim defined the nature of the claim in terms of a cause of action within the meaning of the Civil Aviation (Aircraft Operators’ Liability) Act. Such a course, in my judgment, was permissible under O. 24, r. 1, in that it altered, modified or extended the plaintiffs claim. In other words the indorsement is sufficiently broad in the circumstances to include a claim under the Act in the statement of claim.

I am reinforced in this view, that there is a sufficient nexus between the indorsement and the statement of claim, because the Act, whilst introducing a strict liability, is nevertheless concerned by its terms, with questions of negligence.

Furthermore the majority judgment in Renowden v. McMullin (supra) makes it clear that it is the statement of claim which identifies the case that the defendant is called upon to answer and that the causes of action on which the plaintiff relies are to be ascertained by reference to the statement of claim and not the indorsement on the writ.

The authorities show that in a case in which an amendment to a statement of claim is sought which raises a cause of action of a kind different to that which is alleged in the statement of claim and it appears that at the date when the amendment is sought that cause of action would be statute-barred if a writ were then issued, the amendment should not be issued. But in relation to the indorsement and the statement of claim and in the light of O. 25, r. 1, it is to the statement of claim that regard should be had in determining what are the claims which the plaintiff wishes to litigate.

For all of these reasons I dismiss both applications.

I make no order as to costs.

Applications dismissed.

__________________________

Lawyers for the applicant/defendant: Beresford Love Francis & Co.
Lawyers for the respondent/plaintiff: Kirkes.