CREED8N v MEASEY INVESTMENTS AND ORS
Supreme Court of the Northern Territory of Australia Martin J.

18 February and 21 March 1988

Practice and Procedure - Personal injuries action - Statement of Claim - Plaintiff must plead "essential ingredients" - relationship between person alleged to be negligent and the person whom it is sought to hold vicariously liable

Cases referred to:
Phillips v Phillips (1878) 4 QBD 127
Williams v Milotin (1957) 97 CLR 465
Jennings v Hannan (No. 2) (1969) 71 SR (NSW) 226
Rambarran v Gurrucharran (1970) 1 All ER 749
Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 312
Lanchbury v Morgans (1973) AC 127

Counsel for Applicant Solicitors for Applicant

Counsel for Respondent Solicitors for Respondent

Mr A Wyvill Mildrens
Mr P Bracher
Morris, Fletcher & Cross

mar880013

mar880013
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 280 of 1986

BETWEEN:
JOSEPH PATRICK CREEDON
Plaintiff

AND:
MEASEY INVESTMENTS PTY LTD
First Defendant

AND:
TERRITORY INSURANCE OFFICE
Second Defendant

AND:
FERNANDO COLLICCO
Third Defendant
l>-..ND:

STEELCON CONSTRUCTIONS PTY LTD
Fourth Defendant

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 21 March 1988)

The fourth defendant applies to have the Statement of Claim struck out as against it.

The Statement of Claim was endorsed upon the Writ which was issued at a time when the former Rules of this Court were in force.

It reads as follows -

"STATEMENT OF CLAIM

At all material times the Plaintiff was a passenger in a Holden Sedan registered number
N.T. 375 owned by the first Defendant and driven by PETER TYRONE CROCKER now deceased travelling inbound along the Arnhem Highway in the Northern Territory of Australia.

At all material times the third Defendant was the driver of a Kenworth Truck registered number N.T. 170.545 owned by the fourth Defendant which was proceeding outbound along the highway aforementioned.

On the 21st day of April 1980 at a point approximately 6.5 kilometres east of the South Alligator River the two aforesaid vehicles collided by reason of the negligence of the said PETER TYRONE CROCKER deceased and/or the third Defendant.

The second defendant is joined as the representative of the PETER TYRONE CROCKER deceased pursuant to an Order of Master Le Fevre made on Monday the 21st day of April 1986 in respect of injuries sustained by the Plaintiff in the said collision.
PARTICULARS OF NEGLIGENCE

It is alleged that PETER TYRONE CROCKER was guilty of negligence in that he:
failed to keep any or any proper lookout.
drove his motor vehicle at a speed which was excessive in the circumstances.
failed to keep his motor vehicle under any or any proper control.
failed to drive his motor vehicle on the correct side of the highway.
failed to sound any warning that he was about to drive his motor vehicle on the incorrect side of the highway.
failed to apply the brakes on his said
motor vehicle in time to avoid the said collision or at all.
failed so to steer or control his motor
vehicle so as to avoid the said collision.

It is alleged that the fourth Defendant is guilty of negligence in that he:

to keep any or any proper look out.
drove his motor vehicle at a speed which was excessive in the circumstances.
failed to sound any warning of the approach of his motor vehicle.
failed to keep his motor vehicle under any proper control.
failed to sound any warning that he was
about to drive his motor vehicle onto the incorrect side of the highway.
failed to apply the brakes on the said motor vehicle in time to avoid the said collision or at all.
failed so to steer or control his motor vehicle so as to avoid the said collision.
By reason of the negligence of the defendants the Plaintiff was injured and suffered and will continue to suffer damage.
PARTICULARS OF INJURIES

The Plaintiff sustained the following injuries:
Multiple fractured right rib.
Right Hemo-pneumothorax.
e.	Fractured right clavical.
And the Plaintiff claims damages."

Clearly there are errors in the Statement of Claim, for example, the numbering of paragraphs may be confusing and in the second paragraph 2 where it was intended that the particulars of negligence sought to be alleged went to the third defendant and not the fourth.	These are matters which, in the ordinary course, would normally be remedied by amendment without objection.

However, the fourth defendant's real objection to the Statement of Claim is that it does not disclose a cause of action against it (R.23.02).

In the first paragraph 2 it is pleaded that the third defendant was driving a truck owned by the fourth defendant, and in the first paragraph 3 that it was involved in a collision with a vehicle driven by another person (now deceased) by reason of the negligence of that person and the third defendant.

Even if "fourth" in the second paragraph 2 is read as "third", there is still no cause of action expressly pleaded against the fourth defendant.	Plainly what the plaintiff had in mind was that the fourth defendant should be held vicariously liable for the alleged negligence of the third defendant in his driving of the truck.	To suggest that there is anything in the Statement of Claim which might be seen as smacking of any other cause of action against the fourth defendant is fanciful and on the facts such as are pleaded no other possible cause of action presents itself.
It is not a case where "this statement of claim in no way

enables the defendants to know what case they have to meet at the trial of this action" per Cotton L.J. - Phillips v Phillips (1878-1879) 4 QBD 127 at 138.

I note that if the fourth defendant is correct, then the same applies to the first defendant.

The unsatisfactory nature of the Statement of Claim might be explained by the fact that the writ upon which it is endorsed was filed on the last day of the limitation period which then applied to the plaintiff, but I put out of my mind the consequences which might flow if I were to grant the order sought.

Order 23 r.4 of the former rules provided that every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence.

In Williams v Milotin (1957) 97 CLR 465 at 474 the High Court said "When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce".	That case and others are cited by Williams in "Civil Procedure in Victoria" Volume 1 at paragraph 13.02.30, for the proposition that "The pleader is not bound to state the legal effect of the facts upon which he relies; he is only bound to state the facts themselves".	The learned author goes on "It is sufficient if the pleader states the material facts, and at the trial he is free to present in argument whatever legal consequences are appropriate to the facts as found by the Court".

.	'

It is not necessary that the plaintiff plead a conclusion of law, that is, that the facts disclose as a matter of law the fourth defendant is vicariously liable for the alleged negligence of the third defendant.	However, the plaintiff must plead the "essential ingredients".

One of those ingredients is the relationship between the person alleged to be negligent and the person whom it is sought to hold vicariously liable.	Here  nothing is pleaded other than that the third defendant was driving a truck owned by the fourth defendant.	In New South Wales it has long been held that the ownership of a motor vehicle, especially a commercial motor vehicle, is prima facie evidence, fit to be left to a jury, that any person driving it and causing damage to another was driving with the authority and for the purpose of the owner.	Jennings v Hannan (No. 2) (1969) 71 SR(NSW) 226.		At p.233 His Honour Walsh J.A. said that the Court of Appeal in New Zealand had adopted the same view.	In the decision of the Privy Council in Rambarran v Gurrucharran (1970) 1 All ER 749, in which Jennings v Hannan was considered, Lord Donovan at p.751 said, "Where no more is known of the facts, therefor, than that at the time of an accident the car was owned but not driven by A it can be said that A's ownership affords some evidence that it was being driven by his servant or agent".

It is to be noted that ownership of a vehicle is only prima facie evidence fit to be left to the jury, or in this jurisdiction, the Court, that the person driving it and causing damage did so with the authority and for the purposes of the owner.	It is not conclusive evidence and the evidence at trial may disclose facts which require the application of the law to determine whether or not the owner is vicariously liable.	As Lord Donovan went on to say "But when the facts bearing on the question of service or agency are known, or sufficiently known, then clearly the problem must be decided on the totality of the evidence".	Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR
312 and Lanchbury v Morgans (1973) AC 127, to which I was referred by counsel for the fourth defendant, are but examples of the application of the law to the facts in those cases, facts which went beyond what is pleaded here.

The plaintiff is not obliged to rely on the continuing operation of s.64 of the Motor Vehicles Ordinance to establish the presumption of agency.	Had he been so the absence of a pleading that the fourth defendant's vehicle was insured may have presented him with problems.	But I need not decide that.

I hold that the Statement of Claim discloses a cause of action by the plaintiff against the fourth defendant and dismiss the application.