Drew v Patrick Stevedores Holdings Pty Ltd
[2017] VSC 231
•3 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 00127
| KEVIN DREW | Plaintiff | |
| v | ||
| PATRICK STEVEDORES HOLDINGS PTY LTD | Defendant | |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2017 |
DATE OF JUDGMENT: | 3 May 2017 |
CASE MAY BE CITED AS: | Drew v Patrick Stevedores Holdings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 231 |
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PRACTICE AND PROCEDURE – Application to amend defence – workplace incident – Limitation of Actions Act 1958 (Vic) - whether substantial delay will be caused by the amendment – wasted costs – whether there is irreparable element of unfair prejudice caused by amendment – whether grant of amendment will lessen public confidence – Supreme Court (General Civil Procedure) Rules 2015, r 36 - Aon Risk Services Australia v Australia National University (2009) 239 CLR 175 considered - Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr D McWilliams | Wisewould Mahony |
JUDICIAL REGISTRAR CLAYTON:
The defendant’s application for leave to amend its defence is granted.
The defendant is ordered to file and serve an amended defence in the form submitted by 5 May 2017.
Costs of the application are costs in the proceeding.
The defendant to pay the plaintiff’s costs of and occasioned by the amendment.
Introduction
This is an application brought by summons dated 20 April 2017 by the defendant, Patrick Stevedores Holdings Pty Ltd (“Patricks”) for leave to amend its defence. The proposed amendments include certain admissions of negligence by Patricks, but it is the proposed amendment to plead the operation of the Limitation of Actions Act 1958 (Vic) (“the LAA”) in relation to part of the plaintiff’s claim that is opposed. In support of its application, Patricks relies on an Affidavit of Rebecca Alana Littlejohn affirmed 20 April 2017.
The plaintiff, Mr Kevin Drew, opposes the application in so far as it relates to the LAA amendment and relies on an Affidavit of Katherine Ann Wilson sworn 26 April 2017.
Background
By Writ dated 18 January 2016, Mr Drew commenced proceedings against Patricks alleging that he sustained injury during the course of his employment with Patricks.
In his statement of claim, Mr Drew alleges two discrete incidents as well as a general system of work that caused him injuries. Mr Drew alleges that between 2000 and 2012, he was required to operate machinery including straddle cranes which were fitted with poor braking systems which caused jerking. The cranes had to be driven across uneven surfaces and Mr Drew had to repeatedly turn his head whilst the machinery was moving. On 15 November 2002, whilst Mr Drew was driving a straddle crane, the brakes failed and he collided with a concrete barrier (“the 2002 incident”).
Mr Drew alleges that he returned to work in 2004 and was subject to undue pressure and required to undertake duties beyond his physical capacity. I will refer to the undue pressure, the requirement to undertake duties beyond his physical capacity, and the circumstances of his work including driving machinery with poor braking systems over uneven surfaces collectively as the “course of employment claim”.
In August 2012, he was operating a forklift and collided with a prime mover, the presence and location of which had not been drawn to his attention (“the 2012 incident”).
Mr Drew alleges that as a result of:
1) the 2002 incident;
2) the 2012 incident; and
3) the course of his employment from 2002 – 2002 and 2004 – 2012 collectively,
he sustained injuries to his lumber and cervical spine and left shoulder, as well as psychiatric injury.
Patricks denies all allegations of negligence, does not admit the injuries and pleads that if any injury occurred as a result of its negligence, then Mr Drew contributed to his own injuries.
In its proposed amended defence, Patricks admits that Mr Drew collided with a prime mover in 2012 and admits that its negligence was a cause of the 2012 incident.
Patricks further seeks, in its proposed amended defence, to plead that any injuries suffered by Mr Drew prior to 18 January 2010 are statute barred by the provisions of the LAA.
Patricks’ Submissions
By oral submission, counsel for Patricks argued that it had an entitlement to rely on a limitations defence as a matter of right that is enacted and available to a defendant upon pleading a limitations defence. At the point of pleading, Patricks submitted that there is no need for a defendant to establish the merits of the defence and that it was, instead, simply an ‘arithmetical or temporal calculation’ as to whether the defence was available.
Patricks submitted that granting the application would not disrupt the trial date, as, in the event that Mr Drew then filed an application for an extension of time, that application could readily be dealt with at the start of a trial before the jury was empanelled.
Patricks further submitted that if the Court granted the application, it could not be said that the plaintiff could be left with no case to run at the end of the day. I took this to mean that, even if Patricks amended its defence to plead the LAA defence, and Mr Drew made an application for an extension of time which was unsuccessful, he would still be able to pursue a claim for the 2012 incident and the course of his employment from 18 January 2010.
Patricks argued that it was not necessary to descend into the detail of the merits of the claim for reliance on the statute of limitations. Nevertheless, the Affidavit of Ms Littlejohn affirmed 20 April 2017 does appear to set out the basis upon which an application by Mr Drew for an extension of time under the LAA might be opposed. namely that, due to the passage of time, various documents that would have existed in 2002 are no longer in existence, and that enquiries of all persons who were employed in management during the period have failed to locate any person able to recall any complaint made by the plaintiff made about the straddle crane during the period.
In her Affidavit, Ms Littlejohn deposes that Patricks would be unable to properly defend the allegations made against it because of:
1) the absence of material about the alleged incident in 2002;
2) the lack of information available to Patricks relating to ‘questions of liability with respect to the Plaintiff’s driving of the straddle crane’ that may have been available if the claim had been brought within ‘proper time’; and
3) the inability to locate any lay witness who recall any complaints made by Mr Drew or who can recall the condition of straddle cranes and the surface of the road during the relevant period.
In relation to the timing of the application, Ms Littlejohn deposes at paragraph 12 of her affidavit that whilst she did not have personal conduct of the matter at the time Patricks’ defence was filed, she was told:
‘[T]he statute of limitations defence was not taken at that time as the evidence was he had returned to work for 8 years in a full time capacity after the alleged 2002 incident. Therefore it was the view of the defendant that the substance of the loss suffered by the plaintiff was attributed to the 2012 incident that resulted in the Plaintiff’s ultimate cessation of work.’
In his oral submission, counsel for Patricks did not seek to refute that injuries prior to the 2012 incident were pleaded, but said that, because Mr Drew’s claim was on the basis of a total incapacity, the ‘focus’ was on the 2012 injuries. Counsel for Patricks contended that Patricks had informed Mr Drew’s solicitors on 13 April 2017 of its intention to seek leave to amend its defence and that on 20 April 2017, received notification that Mr Drew objected to the amendment.
No further evidence or submissions were put to the Court by Patricks to explain the delay between filing its defence on 29 February 2016 and bringing this application on 21 April 2017, being a delay of more than 13 months.
Mr Drew’s Submissions
Mr Drew, in opposing the LAA amendment, relied principally on a submission that the application was late, and was brought for tactical reasons.
In her Affidavit sworn 26 April 2017, Ms Wilson sets out the numerous occasions on which Patricks was made aware that Mr Drew’s claim encompassed more than the 2012 incident including:
1) an Affidavit of Mr Drew sworn 19 May 2015;
2) Mr Drew’s serious injury application filed on 19 May 2015;
3) a letter from Mr Drew’s solicitors dated 22 October 2015 requesting financial documents for the period 2002-2005;
4) a letter from Mr Drew’s solicitors dated 21 November 2015 setting out loss of income calculated from 2002 onwards; and
5) a letter from Mr Drew’s solicitors dated 23 November 2015 enclosing, amongst other things, extracts from Certified Agreements for 2001, 2004, 2008 and 2012.
I note that paragraph 3 of the statement of claim pleads that ‘the Plaintiff sustained injury in the course of his employment with the Defendant between 2000 – 2012 when he was required to repeatedly operate heavy machinery including straddle cranes…’.
Mr Drew also submitted that Patricks was in error in suggesting that there was no material relevant to the 2002 incident or the course of employment claim such that it would be unable to properly defend allegations arising from those matters.
In her Affidavit, Ms Wilson sets out various documents from as early as 2002 she says are available to Patricks and that are relevant to Mr Drew’s 2002 incident and course of employment claim including:
1) Incident Reports of 19 October 2002 and 15 November 2002;
2) an undated Casualty Report;
3) a Circumstance Report of 29 March 2004;
4) a Claims Agent Workplace Assessment of 28 May 2003;
5) a Circumstance Investigation Report of 19 May 2005; and
6) a report of a Mr Dunn into Health Safety and Welfare Standards for Straddle Operators dated February 2003.
In oral argument, counsel for Mr Drew submitted that in seeking to plead an LAA defence, Patricks was trying to hive off parts of the cause of action so that it could attribute loss and damages to matters which it hopes it can take out of consideration. Counsel for Mr Drew submitted that, if the application was granted and the LAA defence was successful, Patricks would likely seek to have the earlier, statute-barred injury ‘taken away’ from the later injury and that it would attempt to ‘load up’ the injuries on that earlier part of the period of employment.
Mr Drew submitted that such an attempt would be contrary to the decision of the Court of Appeal in the case of Bell Radiology v McGraw.[1] In that case, McGraw alleged she had suffered injury caused by two separate incidents in 1996 and 1997. Bell Radiology had sought orders that the jury be asked to consider, with regards to each incident, whether they had been negligent and, if so, what injury flowed from each incident. The Court of Appeal upheld the trial judge’s decision not to direct the jury to assess each individual event as a separate cause of action and confirmed that, though there may have been separate incidents giving rise to injury, there was one cause of action, being a cause of action for negligence.[2]
[1]Bell Radiology (a Firm) v McGraw, unreported, Court of Appeal, 7 February 1996.
[2]Ibid [10]-[11].
Mr Drew submitted that he has a single cause of action and Patricks, by its application, was seeking to ‘split it up’.
Whether or not Mr Drew has a single cause of action and whether the LAA defence would in fact split it up in a way that is not legally sustainable is not a matter for this application.
Relevant Principles
The power to amend in r 36 of the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”) gives the Court a wide discretion to allow amendments to any document in a proceeding to determine the real controversy between the parties, to correct any defect or error, or to avoid a multiplicity of pleadings.
As in the exercise of any discretion, the Court must have regard to the terms of the Civil Procedure Act 2010 (Vic) and in particular, s 7 which states that the overarching purpose of the Act and Rules in civil proceedings is to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
There are a number of factors that the Court ought to consider in exercising its discretion to allow an amendment. In Commonwealth v Verwayen,[3] Dawson J held:
In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed.[4]
[3](1990) 170 CLR 394.
[4]Ibid [456].
Whilst is it not the role of the Court on an application for leave to amend to examine the merits of the case, if a pleading has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion.[5]
[5]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.
A great deal of both affidavits filed in the matter, as well as much of the oral argument before me, concerned whether or not documents were or were not available to Patricks, and whether Patricks had or had not made appropriate inquiries of its servants or agents to ascertain any prejudice it would face in the event that the claim made by Mr Drew was out of time. I consider that these matters go to the substantive issue of whether Mr Drew is out of time, and if so, whether he should be granted an extension of time. Beyond establishing that its proposed defence is not bad in law or without prospects of success, Patricks does not have to persuade me that their defence will, in fact, succeed.
Patricks submitted that on a plain reading of the LAA, Mr Drew is out of time in relation to those parts of his claim that occurred prior to 18 January 2010. It may be that there are sound reasons why the LAA does not apply in the easy ‘arithmetical or temporal’ way suggested by Patricks. Indeed, in claims where a plaintiff alleges that a system of work over an extended period of time caused an injury, it may not be possible to determine an exact date on which the injury occurred. Alternatively a plaintiff may not be aware of the injury suffered until a later time. An obvious example where the discovery of the injury significantly post-dates the occurrence of the injury is in asbestos claims, where the onset of disease is typically many decades after the date of exposure.
I make no comment, nor do I have any evidence before me, as to the date that Mr Drew’s injury was discoverable, but merely raise this to point out that a clear cut-off date 6 years prior to the commencement of the proceeding is not necessarily the period that a Court would consider to be subject to any LAA defence.
Nevertheless, even if the precise date on which Mr Drew’s limitation period expired is not known, and even if Mr Drew’s limitation period has not in fact expired, the proposed amended defence is not bad in law, nor is it so clearly hopeless or with no reasonable prospects of success that it ought not be allowed on that ground alone.
The High Court set out a number of other factors to be weighed in the exercise of the Court’s discretion to grant or decline leave to amend a pleading in AON Risk Services v Australian National University (2009) 239 CLR 175 (“AON”). It should be noted that in that case, leave was sought by the plaintiff on the third day of a four week trial to plead a new cause of action, and such pleading had not previously been made for apparently tactical purposes. A summary of the factors identified in AON is usefully set out in Namberry Craft Pty Ltd v Watson:[6]
[6] [2011] VSC 136.
The High Court in AON referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:
(a) Whether there will be substantial delay caused by the amendment;
(b) The extent of wasted costs that will be incurred;
(c) Whether there is an irreparable element of unfair prejudice caused by the amendment arising, for example, by inconvenience and stress caused to individuals or inordinate pressure placed upon corporations, which cannot adequately be compensated for, whatever costs may be awarded;
(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[7]
[7] Ibid [38].
These factors are not an exhaustive list, nor does each factor carry the same weight as each other factor.
When weighing up all the factors, the Court must have primary regard to the interests of justice in all the circumstances and the need to ensure that the trial of the matter determines the real issues in dispute between the parties.
Delay
Patricks submitted that there would be no delay occasioned by the amendment were the application granted, as the matter could simply be dealt with at the start of the hearing, as is commonly done in common law trials of this sort.
Mr Drew submitted that, if the application was granted, the trial date would inevitably have to be vacated. Mr Drew submitted that he was well advanced in his preparations for trial, that he had prepared his witnesses and taken witness statements and was ready to go with his ‘full cause of action on the trial date’. He submitted that if this application was to be granted he would require significant preparation time and would need more than the three or so week period currently available. I assume that he refers to the preparation time he would require to either meet this defence or to make an application for an extension of time. He further submitted that the application would not be resolved ‘on the spot’ as the judge would need time to consider the application and this could lead to a subsequent appeal. I assume that in referring to ‘the application’ Mr Drew was referring to his own application for an extension of time under s 27K of the LAA, rather than the application currently before the Court.
I do not consider that either the submission of Patricks or Mr Drew is the inevitable outcome if leave is granted to amend the defence.
If Patricks pleaded the LAA defence, it is open to Mr Drew to reply to that defence and lead evidence to establish that his claim is not out of time. Given the nature of the claim that he makes, I do not consider it a forgone conclusion that he is barred from recovering damages for injuries that may have commenced prior to 18 January 2010. It would be a matter for careful assessment by the trial judge of the evidence of Mr Drew and the experts he calls to determine when, in fact, his injuries occurred and were discovered.
Alternatively, Mr Drew could make an application under s 27K of the LAA for an extension of time for any parts of his claim which were found by the Court to be out of time.
I do not accept that such an application would necessarily need to be dealt with prior to the commencement of the trial. Another possibility is that the application would be dealt with concurrently with the trial. There is good authority for the proposition that where the determination of the questions that the Court must consider in granting an extension of time under s 27K coincide with the questions that the Court must consider in determining the entirety of the claim, it is appropriate that the application for an extension of time be heard concurrently with the trial of the proceeding.[8]
[8] Wardley Australia Ltd & Anor v The State of Western Australia (1992) 175 CLR 514; Magman International Pty Ltd v Westpac Banking Corp (1991) 32 FCR 1.
It would be a matter for Mr Drew as to whether he makes an application for an extension of time, and a matter for the parties and the trial judge as to whether that application is to be heard prior to the trial of the proceeding.
The extent of wasted costs that will be incurred
If there is no vacation of the trial date, I cannot see that any costs are wasted. Even if the trial date is vacated, it is not clear what work done in preparing for trial would be wasted as a result of this amendment.
If the defence is made out and any application by Mr Drew for an extension of time in which to bring his claim is denied, Mr Drew still has a cause to which the defence does not apply, namely the 2012 incident and the course of employment from 18 January 2010.
Mr Drew submitted that he has incurred expenses relating to four or five lay witnesses he intends to call. He did not elaborate on what those costs would be but agreed that such wasted costs could potentially be remedied by a costs order. If Mr Drew is able to establish wasted costs, then I would consider that an appropriate costs order should be made.
Whether there is an irreparable element of unfair prejudice caused by the amendment
Ms Wilson’s affidavit made no reference to prejudice that the plaintiff would suffer if the application were successful, other than a reference at paragraph 13 to ‘the lateness of the Defendant’s application’, which perhaps implies that, by virtue of the lateness of the application, Mr Drew suffers some prejudice.
In oral submissions, counsel for Mr Drew argued that:
‘The prejudice to the plaintiff is what is being sought to be done here is to take out parts of those causes of action, that entire cause of action so that when the plaintiff comes to have his damages assessed, it will be put to the jury: “You can’t award damages, members of the jury, for this earlier part here because that’s not part of the action that’s before you today.”
Counsel further submitted that prejudice flowed from the fact that:
1) Mr Drew was well advanced in his preparation and ought not be ‘waylaid on the trial date by an application which will result in the trial being adjourned’;
2) Mr Drew had four or five lay witnesses lined up ready to be appear; and
3) the ‘whole objective’ of the amendment was to take out the earlier part of Mr Drew’s claim from the cause of action.
In AON, French CJ held:
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. [9]
[9] (2009) 239 CLR 175, 182 at [5].
It is correct that a delay may cause prejudice to a party, regardless of what costs orders are made. In this case, though, I am not satisfied on the material that any delay will be occasioned by the amendment, nor am I persuaded that, if there is a delay, there will be an irreparable element of unfair prejudice flowing from that delay.
Mr Drew’s admirable work in having lay witnesses ready to attend on the trial date some three weeks out from trial is commendable; however, it seems unlikely that all four or five lay witnesses would be required on the first day of trial, when a jury will need to be empanelled, counsel will be opening the case and Mr Drew would be giving his evidence. It is more likely that those lay witnesses would be required to attend over the following days and in all likelihood, even with this proposed amendment, that would still be the case.
The objective of the amendment is undoubtedly to take out some parts of Mr Drew’s injury from consideration by the Court. Pleading an available defence is not, however, in my view, what is meant by ‘an element of irreparable prejudice’. The irreparable prejudice needs to flow from the timing of the amendment. Whether Patricks succeed in their defence is a matter for the trial judge. Whether Mr Drew makes an application for an extension of time is a matter for him. Whether any such application is granted is a matter for the trial judge. All that is before the Court in this application is whether the amendment ought to be allowed. I do not find that there is any element of irreparable prejudice to the plaintiff in granting the application.
Case management concerns and public confidence in the judicial system
This Court takes the management of cases extremely seriously, particularly those in specialist lists such as the Personal Injury List. The case management policy is to bring matters to light prior to the commencement of trial that require ventilation or adjudication, so as not to cause otherwise avoidable delays and adjournments.
Whilst it would have been preferable for this application to have been made much earlier, it is, in fact, part of the very role envisaged by case management principles that such applications are heard, so that time is not taken up during the trial of the matter, and so that trials are not vacated part way through.
Shutting a party out from pleading an available cause of action or defence has real potential to undermine public confidence in the judicial system. It would only be where the circumstances of the particular case weighed heavily in favour of such a course of action that a Court would take such steps. The circumstances of a case such as AON are clearly distinguishable from the present case. This application was made a month before the trial, the amendment sought is a standard defence, raised almost routinely in cases involving a course of employment claim where the employment was of a long duration, and, in any event, the proposed amendment may not result in any delay in the trial.
Whether a satisfactory explanation has been given for seeking the amendment at the stage it has been sought
I do not accept Ms Littlejohn’s explanation in her Affidavit that “it was the view of the defendant that the substance of the loss suffered by the plaintiff was attributed to the 2012 incident that resulted in the plaintiff’s ultimate cessation of work”.
There was no basis for that view to have been formed, as correctly pointed out by Ms Wilson in her Affidavit which clearly sets out the many occasions in which Mr Drew had made it clear that his claim encompassed the entirety of his employment.
There was no explanation given by Patricks for why that view had subsequently changed, when it had changed or why this application had been brought so late in the proceeding.
It is hard to avoid a conclusion that in fact this defence was simply overlooked at the time the original defence was filed and that error was not detected until shortly before the application was made.
Nevertheless, although I consider that no satisfactory explanation has been provided for the delay in seeking this amendment, this is only one of the factors that needs to be considered in determining whether the amendment ought to be allowed. For the reasons outlined above, the balance falls in favour of allowing the amendment. Patricks’ failure to provide a satisfactory explanation for the delay means Mr Drew was entitled to defend the application. I therefore order that the costs of this application be costs in the proceeding. The usual rule that the costs of amendment are costs in the proceeding[10] ought not to apply. Mr Drew should get his costs of and occasioned by the amendment.
[10] Rule 63.17 of the Rules.
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