DZIENIS v Rocky Bay Incorporated - [1999] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DZIENIS -v- ROCKY BAY INCORPORATED [1999] WADC 81

CORAM: LA JACKSON DCJ

HEARD: 30 SEPTEMBER 1999

DELIVERED : Delivered Extemporaneously on 1 OCTOBER 1999 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 3517 of 1997

BETWEEN: TAZDEUSZ DZIENIS
Plaintiff
AND
ROCKY BAY INCORPORATED
Defendant

Catchwords:

Practice and Procedure - Amendment of Pleadings - Application to adjourn trial - Decided on own facts.

Legislation:

Nil

Result:

Pleadings amended. Application to adjourn trial dismissed.

Representation:

Counsel:

Plaintiff: Mr G Droppet
Defendant: Mr P Jarman

Solicitors:

Plaintiff: Hoffmans
Defendant: Jackson McDonald

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

State of Queensland v JL Holdings (1997) 189 CLR 146

Case(s) also cited:

Nil

LA JACKSON DCJ: This is an appeal from a decision of Registrar Kingsley dated 16 September 1999 dismissing the defendant's application to amend its defence, and an application by the defendant to vacate trial dates and to stay the plaintiff's action until he has undertaken a bone biopsy.
The plaintiff's claim is for damages for personal injury arising out of an accident at work. He was employed by the defendant as a nursing assistant and claims to have injured his back whilst lifting a patient. Both liability and quantum are in issue.
An appeal from the decision of a Registrar is a hearing de novo. As a result of some mutual concessions the disputed application to amend the defence is to add paras 11 and 13 (sic 12) as follows:
"11.Further and alternatively the plaintiff has failed to mitigate his damages by:
(a)failing to apply himself to rehabilitation;
(b)…
(c)exaggerating his symptoms to medical practitioners and other health professionals;
(d)failing to undergo a bone biopsy which has been recommended to him by Dr Criddle and Professor Cohen and to pursue treatment in relation to the metabolic bone disorder.
13.Further and alternatively if the plaintiff has suffered injury and permanent disabilities and has suffered loss and damage the defendant says that the injuries and permanent disabilities and loss and damage are the result of a metabolic bone disorder from which the plaintiff suffers which was not caused by any accident on 20 February 1995.
14.Further and alternatively if the plaintiff is incapacitated for his pre‑accident employment or for any employment that incapacity is a result of metabolic bone disorder from which the plaintiff suffers which was not caused by any accident on 20 February 1995."
Litigation is conducted in accordance with case management principles in the public interest of judicial and litigious efficiency. The principles of amending pleadings late in the action were discussed by the High Court in the State of Queensland v JL Holdings (1997) 189 CLR 146 but in this case, I find it unnecessary to consider in any detail their Honours' reasoning.
Paragraphs 11(a) and (c) were the subject of a minute of amended defence filed and delivered in November 1998. However, due to an oversight by the defendant's solicitors no formal application was made to amend until 9 September 1999. The plaintiff says that although the minute was filed, it was not proceeded with, and accordingly the plaintiff prepared his case on the pleadings as they were. Clearly the proposed amendments as to the failure to rehabilitate and the exaggeration of symptoms, if made, would have cried out for particulars and in the absence of particulars would have been embarrassing.
By an affidavit of 17 September 1999 the defendant's solicitor set out the factual basis of the proposed pleas but not in the form of particulars upon which the plaintiff could prepare his case.
In my opinion the defendant ought not to be allowed to amend its defence by adding paras 11(a) and (c). It is simply too late. It would place an impossible burden on the plaintiff to answer the allegations, even if properly formulated particulars were now given. It would result in an adjournment of the trial. The general issues of the plaintiff's loss and damage are in issue on the pleadings as they stand, and I do not consider any prejudice to the defendant sufficient to warrant the addition of paras 11(a) and (c).
Paragraphs 11(d) and 13 and 14 are as a result of medical opinions given in or about March 1999. There will no doubt be argument as to the effect of these opinions, but put at its highest from the defendant's point of view, it is an almost complete answer to the plaintiff's claim that his symptoms were accident caused. That is a most important difference. The interest of justice are served by allowing the parties to properly plead and rely on the cases available to them. To preclude the defendant from pleading the metabolic bone disorder, merely because it comes late in the piece, is wrong. Unless the prejudice to the plaintiff is incurable by costs or otherwise, the defendant should be allowed to amend.
After the opinion of Professor Cohen was obtained, the plaintiff was referred to his own treating doctor, Dr Criddle who made his own comments. It would have been obvious to the plaintiff's solicitors that the issue of metabolic bone disorder was important. Certainly the defendant's solicitors should have moved earlier to amend the defence, but I consider any prejudice to the plaintiff to be outweighed by the injustice to the defendant by being precluded from amending its defence. I have read the list of countervailing considerations set out by Kirby J in JL Holdings at 169‑172. None of these change the view that I have that justice requires the amendment of the defence by adding paragraphs 11(d) and 13 and 14.
The formal order should be that the appeal be allowed and the defendant have leave to amend the defence as follows:
1.By adding paragraph 5 ‑
"5.In relation to the allegations of negligence concerning the failure to provide assistance in the form of another person or a hoist, the defendant the claimed:
(a)the patient could not have been lifted in a hoist;
(b)a second person was present and would not have in any event, prevented any such injury to the plaintiff."
2.By adding a new paragraph 6 ‑
"6.The defendant denies each and every allegation pleaded in paras 6, 8, 9, 11, 12 and 13 of the plaintiff's statement of claim."
3.By amending para 5 and renumbering as 7 ‑
"7.The defendant does not admit paras 7 and 10 of the plaintiff's statement of claim."
4.By amending para 6 and renumbering as 8 ‑
"8.Further, or in the alternative, the defendant claims that if which is not admitted the accident occurred as pleaded in para 4 of the plaintiff's statement of claim, the accident was caused or substantially contributed to by the plaintiff's own negligence."
5.By amending para 7 and renumbering as 9 ‑
"9.Further and alternatively, the plaintiff was the sole cause of any injury sustained by him in that he was very experienced in the handling and management of patients having been employed by the defendant for 7½ years prior to the date of the accident pleaded in the plaintiff's statement of claim and claims that in all the circumstances the plaintiff was aware or ought to have been aware of the safe lifting technique prescribed by the defendant but not comply with them."
6.By adding para 10 ‑
"10.Further and alternatively the plaintiff has failed to mitigate his damages by failing to undergo a bone biopsy which has been recommended to him by Dr Criddle and Professor Cohen and to pursue treatment in relation to the metabolic bone disorder."
7.By adding para 11 ‑
"11.Further and alternatively if the plaintiff has suffered injury and permanent disabilities and suffered loss and damage the defendant says that the injuries and permanent disabilities and loss and damage are the result of a metabolic bone disorder from which the plaintiff suffers which was not caused by the accident on 20 February 1995."
8.By adding para 12 ‑
"12.Further and alternatively if the plaintiff is incapacitated for his pre‑accident employment or for any employment, that incapacity is as a result of the metabolic bone disorder from which the plaintiff suffers which was not caused by any accident on 20 February 1995."
9.By renumbering para 8 as 13.
The defendant is to file and deliver its amended defence by 3.00pm today (1 October 1999) and together with fresh papers for the judge.
Although the defendant did not ultimately press the application to vacate the trial dates and to stay proceedings, it did not formally withdraw its application. I should therefore briefly deal with it.
In March 1999 Professor Cohen strongly recommended the plaintiff be medically examined by a bone biopsy to ascertain the nature of the metabolic bone disorder. The purpose was so the plaintiff could be properly treated. For reasons which are no longer relevant, the plaintiff declined. During argument, the defendant's counsel conceded that although the nature of the metabolic bone disorder was of significance, it was whether the plaintiff's symptoms were caused by that disorder or whether they were caused by the accident that was the important issue. Although it may well have assisted the defence to have the bone biopsy, to now order it would clearly postpone the trial. The plaintiff has known since April 1999 that the defendant refused the bone biopsy. There was initially a refusal by the defendant to pay for it. By delaying until now to seek in effect an order for the bone biopsy, the defendant has failed to act reasonably and in the interests of proper case management. Case management principles must not be allowed to run roughshod over the interest of justice, but in this case, I do not see the defendant being prejudiced to such an extent to create and injustice.
Accordingly the defendant's application to vacate the trial and to stay the proceedings will be dismissed.