Watch Tower Bible Society and Tract Society of Australia v Sahas

(2008) 36 WAR 234; [2008] WASCA 51

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › General indorsement on writ of summons
4. › Whether indorsement covers causes of action advanced in statement of claim
5. › Whether reference to 'negligence' encompasses statutory cause of action under Occupiers' Liability Act 1985 (WA)
6. › Rules of Supreme Court 1971 (WA), O 6 r 1(1), O 20 r 2(2)
1. Practice and Procedure
2. › Pleadings
3. › Judicature system of fact pleading
4. › Whether plaintiff required to identify legal category of action in indorsement
5. › Sufficiency of statement of material facts without legal labels
1. Practice and Procedure
2. › Summary judgment and strike out
3. › Appeal from refusal of strike out order
4. › Whether action statute-barred where statement of claim filed after limitation period
5. › Whether new cause of action introduced by statement of claim
6. › Limitation Act 1935 (WA)
1. Tort
2. › Occupiers' liability
3. › Occupiers' Liability Act 1985 (WA)
4. › Whether Act creates independent statutory cause of action distinct from common law negligence
5. › Whether common law action in negligence abrogated by statute
6. › Unresolved controversy noted but not determined

Quick Take

A general indorsement on a writ of summons referring to damages caused by 'negligence' is sufficiently broad to encompass both a common law negligence claim and a statutory cause of action under the Occupiers' Liability Act 1985 (WA), without the need to expressly identify the statutory basis. The word 'negligence' in an indorsement is not a term of art confined to the common law tort. Under the judicature system of fact pleading, an indorsement need not identify the legal category of the cause of action; it suffices if the facts alleged are sufficient to identify the claim. The controversy about whether the Occupiers' Liability Act 1985 (WA) creates an exclusive statutory cause of action replacing the common law remains unresolved.