Carman v VWA (Ruling No 1)
[2018] VCC 790
•30 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-00418
| ANNA CARMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 & 30 May 2018 | |
DATE OF RULING: | 30 May 2018 | |
CASE MAY BE CITED AS: | Carman v VWA (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 790 | |
REASONS FOR RULING
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Subject: Accident compensation
Catchwords: Amendment of pleadings; addition of injuries
Legislation Cited: Civil Procedure Act 2010
Cases Cited:Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27
Ruling: Leave to amend granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Harrison QC with Mr E. Makowski | Ryan Carlisle Thomas |
| For the Defendant | Ms R. Annesley QC with Mr M. Clarke | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff seeks amendment of the statement of claim to include the following injuries:
“Bilateral ankle injuries including thickening of anterior talofibular ligament.
Chronic pain disorder and/or syndrome.
Aggravation of alcohol dependence.”
2 The defendant opposes each of these proposed injuries being relied upon and advanced argument emphasising the paucity of medical evidence supporting the need for an amendment.
3 Ms Annesley QC, who appeared with Mr Clarke on behalf of the defendant, also raised the issue of prejudice and failure by the plaintiff to comply with the requirements of the Civil Procedure Act 2010.
4 Mr Harrison QC, who appeared with Mr Makowski for the plaintiff, directed me to passages within medical reports to be relied upon which give some support for the plaintiff to be given leave to rely on these injuries.
5 There is no dispute that the plaintiff’s initial injury involved her right knee. In advancing argument on behalf of the plaintiff Mr Harrison QC took me to a report from the plaintiff’s general practitioner, Dr Voon, dated 28 August 2015. A later report dated 16 June 2017 also made reference to bilateral ankle pain and difficulty in walking.
6 Ms Annesley QC strongly opposed the amendment, indicating that the plaintiff’s general practitioner had referred the question of the plaintiff’s potential ankle injury to her treating surgeon, Mr Tran, who appeared to have provided no support to the plaintiff for this condition.
7 It is clear that a party has no absolute right to amend a pleading particularly at a very late stage in the litigation process. I accept that in this case notice was not given to the defendant until very recently, and clearly there may be a question of prejudice if the amendment is allowed.
8 The High Court significantly changed the landscape relating to the amendment of pleadings in 2009 in Aon Risk Services Australia Ltd v Australian National University.[1] The requirements imposed on legal practitioners in the Civil Procedure Act 2010 gives further legislative force to the obligations on practitioners that were referred to in Aon.
[1][2009] HCA 27
9 Notwithstanding my own concerns about the degree of professional attention that may have been given to this case until recently, the essential issue to be determined is whether it would be in the interests of justice to permit the plaintiff to amend the Particulars of Injury as proposed.
10 I see little difficulty with the proposed amendments relating to the description of chronic pain or alcohol dependence. I do not believe these are likely to result in any prejudice to the defendant.
11 Having heard argument in relation to the proposed amendment to include the bilateral ankle injuries, I do have some real reservations as to whether the medical evidence available to be called will ultimately be probative of such an injury in circumstances where the plaintiff would be entitled to recover damages.
12 Nevertheless, there is some evidence that would appear to support a relationship between the claimed negligence or breach of statutory duty and the bilateral ankle injuries said to have been suffered by the plaintiff.
13 I therefore propose to allow the amendment to the Particulars of Injury to include those injuries to which I have previously referred.
14 I will hear the parties further in relation to any subsequent orders that may be sought.
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