BENNETT by his next friend IVY DIANNA BENNETT -v- HUGHES - [2005] WADC 185

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BENNETT by his next friend IVY DIANNA BENNETT -v- HUGHES [2005] WADC 185

CORAM: SLEIGHT DCJ

HEARD: 7 SEPTEMBER 2005

DELIVERED : 30 SEPTEMBER 2005

FILE NO/S: CIV 3080 of 2001

BETWEEN: DARRYN GEORGE BENNETT by his next friend IVY DIANNA BENNETT
Plaintiff
AND
ROBERT HUGHES
Defendant

Catchwords:

Practice and procedure - Amendment of defence - Late application to plead mitigatory issue on damages - Deputy Registrar granted leave - appeal

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Purkess v Crittenden (1965) 114 CLR 164
State of Queensland & Anor v JL Holdings Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance [2005] WASCA 106

Case(s) also cited:

Kschammer v RW Piper & Sons & Ors [2003] WASCA 298
Watts v Rake (1960) 108 CLR 158

SLEIGHT DCJ: This is an appeal by the plaintiff against a decision of a Deputy Registrar made on the 19 July 2005 granting leave for the defendant to amend his defence. The issue to be decided on this appeal is whether the defendant should be granted leave to amend his defence and plead a pre‑existing drug addiction in general diminution of damages.
The plaintiff's claim in this matter is a claim for damages for personal injuries arising from a motor vehicle accident on 28 May 1999.
Proceedings were commenced in November 2001 by a writ of summons with an endorsement of claim. A statement of claim was not filed until September 2003.
The statement of claim pleaded in par 9(k) a residual disability as follows:
"Drug Addiction. The plaintiff had previously experienced a drug addiction but had undertaken treatment and had been drug free for some years prior to the accident. The need to take strong narcotics for pain and depression has resulted in his becoming drug dependent once more."
On the 7 November 2003, the defendant filed a defence admitting liability but otherwise denying all aspects of the plaintiff's claim for damages.
A pleading in this form is common practice in this State in personal injury claims. In my opinion, in many cases such a blanket denial is unhelpful and does not fulfil the proper function of pleadings of alerting the opposing party to specific issues that will arise at trial.
The action was entered for trial by the plaintiff on 23 December 2003. An initial pre-trial conference was listed on 23 February 2004. This was adjourned and there has been further pre-trial conferences and listing conferences since that date. Details of the relevant history of the action will be referred to in this decision later.
On the 13 June 2005, the defendant made an application by chamber summons to amend its defence. The amendment sought by the defendant pleaded as follows:
"Insofar as it is pleaded that the accident caused or contributed to the drug addiction pleaded, the defendant denies the said allegation and pleads that:
(i)the plaintiff was a drug addict prior to the accident;
(ii)he has been treated unsuccessfully for a heroin addiction on at least three occasions prior to the accident; and
(iii)at the time of the accident, he was still addicted and/or using drugs."
The defendant's application to amend the defence was heard by Deputy Registrar Hewitt on 19 July 2005.
An order was made by the Deputy Registrar on 19 July 2005 allowing the amendment.
In the course of submissions to the Deputy Registrar, the plaintiff's counsel had argued that the proposed amendment was ambiguous in the sense that it was not clear whether the pleading was intended to advance a positive case that the award of damages be reduced by virtue of the plaintiff's drug addiction or whether it simply intended to respond to the allegations contained in par 9(k) of the statement of claim that the accident has rekindled the plaintiff's drug addiction. In response to this submission, the Deputy Registrar stated as follows in his decision:
"Insofar as the plaintiff has pleaded his drug addiction as a head of damage, it is intended to counter it. Additionally, I read into this pleading an intention to adduce the evidence irrespective of the case which the plaintiff runs as a relevant consideration for the judge in his assessment of damages."
The appeal came before me on 7 September 2005. On that occasion, the plaintiff's counsel submitted that the amendment ought not to be allowed insofar as it might be said to plead that the award of damages ought to be reduced as a result of the plaintiff's pre-existing drug addiction. The plaintiff's counsel made it clear that the plaintiff had no objection to the amended pleading if it was confined to the issue of a response to par 9(k) of the statement of claim.
On 7 September 2005, I expressed a view that the amendment to the defence on the face of it only related to the issue raised in par 9(k) of the statement of claim.
The defendant's counsel indicated that he wished to contend at the trial that the plaintiff's pre-existing addiction to drugs ought to lead to a diminution of his entitlement to damages. Insofar as the amended pleading may not be adequate to raise this contention, the defendant sought leave to file a further amendment. The appeal was adjourned to enable the defendant to consider the matter and file a minute of further amended defence.
A minute of further amended defence was filed pleading an additional paragraph reading as follows:
"3AThe defendant will rely on the plaintiff's pre-existing addiction to drugs in diminution of his entitlement to damages."
The plaintiff's counsel has indicated that the appellant has no objection to par 3 of the amended defence on the basis that it is confined to a response to par 9(k) of the statement of claim. However, the plaintiff objects to the proposed further amendment contained in par 3A of the further amended defence.

Principles applicable to application to amend

Under O 21 r 5 of the Supreme Court Rules 1971, an application to amend a pleading may be made at any stage of the proceedings. This provision must be read in conjunction with the Case Management Rules of the District Court. O 1 r 3 of the District Court Rules 1996 provides as follows:
"3.To these ends
(a)Each party to an action shall review the pleadings prior to the pre-trial conference so as to ensure their adequacy. Such steps as may be necessary to effect any amendment shall be taken prior to completion of the pre-trial conference.
(b)Unless the justice of the case otherwise requires, the court will refuse any application made subsequent to the pre-trial conference for leave to amend pleadings which, if granted, would necessitate an adjournment of the trial.
(c)Each party shall be ready to proceed to trial by the date of the pre-trial conference."
In the State of Queensland & Anor v JL Holdings Ltd (1997) 189 CLR 146 it was stressed that the discretion to grant an amendment of a pleading is a wide discretion (see pp 155 and 167).
In the joint judgment of Dawson, Gaudron and McHugh JJ it was stated as follows (at 155):
"Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case Management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."
However, as stressed by McClure JA in Wiltrading (WA) Pty Ltd v Lumley General Insurance [2005] WASCA 106 at [93], the decision of JL Holdings (supra) is not authority for the proposition that a late grant of leave to amend is invariably in the interests of the justice of the case. Her Honour was critical of a common practice of applying for late amendments of pleadings and stressed the importance of filing an affidavit in support of such an application explaining the delay in raising the proposed defence (Wiltrading (supra) at [92]), see also Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 at 326.
The plaintiff's counsel relied heavily upon the decision of Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (supra). That case concerned a claim for arrears of rent or damages arising out of a lease between the parties. At the commencement of the action in February 1990 the defendant admitted the validity of the lease. The matter was entered for trial in May 1992. The application to amend the defence was made in October 1993 seeking to dispute the validity of the lease. The application was dismissed by a Master. An appeal against the Master's decision was dismissed by the Full Court (Scott J dissenting).
However, a material consideration in that case was that the defendant sought to withdraw an admission. The affidavit filed by the defendant did not demonstrate the admission was made as a result of mistake, or error, or address the issue of delay in the context of the Case Flow Management principles (Seaman J, p 331F).

Merits of the Defendant's Application to Amend the Defence

The plaintiff's counsel submits that if the amendment proposed contained in par 3A of the further amended defence is allowed, then it would "turn the action on its head". I find this difficult to accept.
In par 12 of the statement of claim, the plaintiff pleads as follows:
"As a result of the injury the plaintiff has suffered a loss of earning capacity, has lost efficiency and has thereby been devalued as an economic unit. He is now less employable than before the accident. (my emphasis) His perimeter of employment has been significantly restricted and he would have difficulty obtaining and sustaining employment. He competes unequally with others in the open labour market."
That pleading necessarily raises the issue of what was the plaintiff's earning capacity before the accident. In this case, the issue of the plaintiff's drug addiction is relevant to his earning capacity prior to the accident.
The onus is on the plaintiff to establish his loss. The onus on the defendant, if he raises the issue of drug addiction in mitigation or reduction of an entitlement for damages, is an evidentiary onus only (see Purkess v Crittenden (1965) 114 CLR 164). At p 168 Barwick CJ, Kitto J and Taylor J in a joint decision describe the evidentiary onus of the defendant in the following terms:
"On the contrary, it was stressed that both the pre‑existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre‑existing condition was and what its future effects, both as to their nature and future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
The plaintiff submits that, in view of the delay that has occurred, the defendant ought to present to the court sufficient evidence of the pre‑existing addiction at the time of the accident to demonstrate the genuineness of the proposed amendments.
The appellant further submits that the extent of the delay applying for an amendment to the defence is a relevant consideration and ought to, in the circumstances of this case, lead to an exercise of a discretion refusing the application to amend the defence.
The defendant relies upon an affidavit sworn the 9 June 2005 by John Roderick Brooksby (the solicitor for the defendant) and filed in support of the application to amend. This affidavit in summary presents the following relevant matters in support of the application.
(a)discovery was not given by the plaintiff until late December 2003. This discovery included a report of Professor J C Hall of the University of Western Australia which stated as follows:
"it was reported that his general health was good, although he admitted to using narcotics, the last occasion being 2 days before the accident."
(b)to explore the issue of the drug dependency prior to the accident the defendant's solicitors wrote to the plaintiff's solicitors by letter dated 8 January 2004 seeking the plaintiff's authority for Royal Perth Hospital and Broome Hospital records to be released.
(c)following a pre-trial conference on 23 February 2004, the defendant's solicitors wrote to the plaintiff's solicitors confirming that the pre-trial conference had been adjourned for further information to be obtained and that the plaintiff's solicitors had given an undertaking to seek clarification from Professor Hall as to what he meant by the plaintiff's narcotic intake prior to the accident.
(d)by letter dated 28 April 2004 the plaintiff's solicitors sent to the defendant's solicitors extracts from the Broome Health Services. The extract which is dated 29 May 1999 (one day after the accident) has a notation:
"Note further history from patient. Recent IVDU (heroin) last used 02/07 ago."
Apparently there was a note from the Royal Perth Hospital documentation to the same effect.
(e)as a result of the receipt of the information, the defendant made an appointment for the plaintiff to be examined by Dr Mustac. The plaintiff declined to attend such an appointment and therefore a further appointment was made for him to attend upon a Dr Peter McCarthy, psychiatrist.
(f)on 16 August 2004, a pre-trial conference was scheduled to take place, but this was adjourned because the plaintiff's firm did not attend to participate in the conference and, in any event, the defendant was waiting on a report from Dr McCarthy.
(g)a listing conference was scheduled but this was adjourned for participation in a further pre-trial conference which was scheduled to take place in early 2005.
(h)in late 2004, the plaintiff changed solicitors. The notice of change of solicitors was not filed until 7 April 2005. [It is confirmed in an affidavit of Andrew David Read, solicitor acting for the plaintiff and sworn the 13 July 2005, that there was a delay in the plaintiff changing solicitors due to a dispute over payment of the former solicitors' legal costs.]
(i)following the appointment of new solicitors, a listing conference scheduled for 22 May 2005 was adjourned to a pre-trial conference which was held on 25 May 2005. Nothing was resolved at the pre-trial conference and a listing conference was scheduled for the 27 May 2005. The plaintiff failed to file a schedule of damages until the morning of the listing conference and as a result the listing conference was adjourned for seven days.
(j)during the seven day adjournment, the defendant's solicitors wrote to the plaintiff's solicitors seeking their consent to the amendment to the defence.
The defendant submits that until discovery was given in December 2003, the defendant's solicitors had no material to support a contention that at the time of the accident the plaintiff was still using drugs. From that time onwards it pursued further information before deciding to apply to amend the defence.
It is clear from the report from Professor J C Hall and the extracts from the Broome Health Services that there is evidence to support the defendant's contention that at the time of the accident the plaintiff was still addicted and/or was using drugs. Clearly, if at the time of the accident the plaintiff was addicted to drugs, this raises issues relevant to the assessment of damages (for example, the issue of the extent of any loss of earning capacity as a result of the plaintiff's accident injuries).
The plaintiff's counsel submits that if the proposed amendment is allowed, the plaintiff will incur further significant costs in obtaining opinions on additional medico‑legal issues, the listing of the trial will be further delayed and there will be an additional strain on the non-institutional plaintiff. All these factors are relevant [see Tony Sadler (supra) p 334 ‑ 335]
However, these factors are balanced by the following considerations:
(a)the issue of the plaintiff's drug addiction was raised by the plaintiff in par 12(k) of the statement of claim and, therefore, in an evidentiary sense was always going to be a matter in issue at the trial;
(b)in December 2003, the defendant ascertained by the discovery process that there was information suggesting the plaintiff was still using drugs up to the time of the accident. From that time onwards, the defendant pursued the issue of the plaintiff's drug addiction by seeking further information;
(c)the plaintiff's statement of claim pleads in par 12 the issue of the plaintiff's employability at the time of the accident. The issue of the plaintiff's drug addiction and/or drug use is relevant to this issue;
(d)there have been delays in the past which can be attributable to the plaintiff. Firstly, a very lengthy delay in the filing of the statement of claim and, further, a delay due to the change in solicitors.
In my opinion, the defendant ought to be permitted to amend the defence as proposed so that the issue of the plaintiff's drug addiction and/or use is fully before the court and can be taken into account in the assessment of damages.
Accordingly, I will make orders allowing the defendant to file the further amended defence and dismiss the appeal.
I will hear the parties on the terms of the final orders.