Ellis v East Metropolitan Health Service - [2018] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ELLIS -v- EAST METROPOLITAN HEALTH SERVICE [2018] WADC 91
CORAM:   GETHING DCJ
HEARD:   ON THE PAPERS
DELIVERED          :   23 AUGUST 2018
FILE NO/S:   CIV 2206 of 2012
BETWEEN:   COOPER ELLIS

AND
EAST METROPOLITAN HEALTH SERVICE
Defendant

Catchwords:

Practice and procedure - Pleading - Application to amend defence after trial and the provision of written reasons

Legislation:

Rules of the Supreme Court 1971, O 21 r 5

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Slater & Gordon - Perth
Defendant	:	HWL Ebsworth Lawyers

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Borg v Northern Rivers Finance Pty Ltd [2003] QSC 376
Community and Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Donyette Pty Ltd v Toplodge Nominees Pty Ltd [2010] WASC 388
Ellis (By his Next Friend Christopher Ellis) v East Metropolitan Health Service [2018] WADC 36
Ellis (By his Next Friend Christopher Ellis) v East Metropolitan Health Service [2018] WADC 36 (S)
Emery v Wilson (1974) 48 ALJR 131
Essex Securities Pty Ltd v Lunt [2006] WASC 58
Fletcher v St George Bank Limited [2010] WASC 75
Freehill Hollingdale and Page v Bandwill Pty Ltd [2000] WASCA 150
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASCA 296
Hutton v Meston [2004] WASCA 178
Irani v St George Bank Ltd [2004] VSC 260
Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437
Macks v Viscariello (2017) 353 ALR 201
May v Thomas [2008] WASCA 215
Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634
Mineralogy Pty Ltd v Sino Iron Pty Ltd [ No 17] [2018] WASC 8
Pollard v Endale Pty Ltd [2009] WASCA 189
Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Sangora Holdings Pty Ltd v Dunstan (Unreported, WASCA, Library No 990172) 13 April 1999
Shine v Williams [2007] WASCA 194
Singh v Atombrook Ltd [1989] 1 All ER 385
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406
Stuart v Hanna [No 3] [2018] WASC 208
The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
The State of Western Australia v Cunningham [No 2] [2017] WASCA 197
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481
Venn v Tedesco [1926] 2 KB 227
Water Board v Moustakas [1998] HCA 12; (1998) 180 CLR 491
Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212
West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290
Woodley v Woodley [2015] WASC 500

GETHING DCJ:

Between 4 and 13 September 2017 I presided over the trial in this action, with a further sitting day on 3 November 2017 for closing submissions. On 16 March 2018 I awarded judgment in the amount of $5,231,149 to the plaintiff against the defendant (Judgment). The Judgment gave effect to the reasons for decision in Ellis (By his Next Friend Christopher Ellis) v East Metropolitan Health Service.[1] The Judgment expressly reserved two matters. The first was the issue of costs. By orders made on 14 May 2018 I determined the costs issues, giving effect to a second published decision.[2]
[1] Ellis (By his Next Friend Christopher Ellis) v East Metropolitan Health Service [2018] WADC 36.
[2] Ellis (By his Next Friend Christopher Ellis) v East Metropolitan Health Service [2018] WADC 36 (S) (Ellis (Costs)).
The second matter was to give the defendant liberty to apply to amend the amended defence, the liberty to be exercised by filing and serving the application to amend by 22 March 2018 (Pleadings Application). The Pleadings Application had been foreshadowed at a hearing on 3 November 2017 when final submissions were being made.[3]
[3] ts 1691 - 1692.
The Pleadings Application was filed on 19 March 2018. In the Pleadings Application, the defendant seeks to alter the basis on which it admitted the quantum of most of the heads of damages. If the Pleadings Application were granted, it would require the Judgment to be set aside and the trial reopened.
For the reasons which follow, I have determined that the Pleadings Application should be dismissed.

Programming of the Pleadings Application

At the hearing on 3 November 2017, when the Pleadings Application was first foreshadowed, there was an initial discussion about the procedure by which the application would be made. In particular I was concerned to ensure that I did not receive any without prejudice material which would have undermined my neutrality as the trial judge.[4]
[4] ts 1691 - 1693.
After the 3 November hearing, there was then various correspondence with my associate about whether the Pleadings Application should be heard before my decision was published and judgment given. Arrangements were made to list the Pleadings Application for an initial mention before me on 7 February 2018. However, my staff were advised that the parties considered that further conferral between counsel for the parties was necessary before the application could be listed for a directions hearing. In the end, the defendant had not filed the Pleadings Application by the time I was ready to publish my decision. A hearing was convened on 9 March 2018. At that hearing, immediately before handing down my decision, I enquired of counsel for both parties whether there was any reason why I should not proceed to deliver my decision. I was informed by counsel for each party that there was not.[5] Accordingly, I handed down my decision. At that point in time I was of the view that, given the factual findings I had made, the issue of amending the pleadings fell away. I advised counsel of this view.[6]
[5] ts 1696 - 1697.
[6] ts 1697.
At the hearing on 9 March 2018, counsel for the plaintiff was pressing the court to enter judgment as soon as practicable given that interest would run from the date of judgment.[7] Judgment could not be entered on 9 March 2018 as there was a need to obtain a final amount for trustee's fees. A further hearing was convened for 15 March 2018.
[7] ts 1698.
At the hearing on 15 March 2018 I was advised by senior counsel for the defendant that the issue of amending the pleadings had not fallen away because of the defendant's instructions to commence an appeal. My understanding at that time, as was that of senior counsel for the defendant, was that the Pleadings Application would make no substantive difference to the decision and was only of relevance for the appeal.[8] Senior counsel pressed me to deal with the Pleadings Application so that the Court of Appeal could consider all the issues.[9] Senior counsel advised that, even if the pleadings were amended, there was no scenario on which the plaintiff would not be entitled to judgment in the amount assessed.[10] As I set out below [83], on the precise amended pleadings proposed, I have now found this not to be the case, but it was the position as understood on 15 March 2018. Against this, the plaintiff stood to lose what I then calculated to be around $450 per day in interest if there was a delay in entering judgment.[11] This point was again pressed by counsel for the plaintiff at the hearing on 15 March 2018.[12]
[8] ts 1707.
[9] ts 1707 – 1709.
[10] ts 1709.
[11] ts 1709.
[12] ts 1716 – 1717.
There was then a detailed discussion with counsel as to the best way to proceed.[13] In the end, and on the basis of my then understanding of the amendment proposed, the least worst option appeared to me to be to award judgment subject to the defendant having liberty to apply to amend the defence, that liberty to be subject to the defendant making the application by 22 March 2018.
[13] ts 1709 ff.
Judgment was entered on 16 March 2018 with this reservation.
The defendant filed the Pleadings Application on 19 March 2018. In it the defendant sought two orders:
(a)that pursuant to Rules of the Supreme Court 1971 (WA) (RSC) the defendant have leave to re-amend its defence in terms of a minute of re-amended defence dated 9 November 2017; and
(b)that the plaintiff's solicitor and counsel, alternatively, the plaintiff, pay the defendant's costs of the application in any event.
The version of the minute of re-amended defence filed with the Pleadings Application was dated 16 March 2018 (Defendant's Minute).[14] It is the Defendant's Minute that I will refer to for the purpose of determining the Pleadings Application.
[14] Folio 143.
The costs orders made on 14 May 2018 expressly reserved the costs of the Pleadings Application.
On 6 April 2018 I made consent orders to program the Pleadings Application through to a hearing before me. The orders provided that the parties were to provide their unavailable dates for the hearing of the application by 30 April 2018. The net effect of the combined unavailable dates, together with my circuit commitments, was that the Pleadings Application would not be able to be heard until September 2018. As an appeal had already been commenced[15], I considered that a delay of this length was not appropriate. There was then further correspondence between my associate and the parties to the effect that, if the parties could not find an available date for both counsel before the end of June, I would proceed to determine the matter on the papers. The parties were not able to advise my associate of a date on which both counsel would be available in June. Accordingly, on 3 May 2018 I made orders for the Pleadings Application to be determined on the papers and reset the programming orders. In the end there were significant delays in the defendant filing its written submissions.
[15] The Appeal Notice was filed on 10 April 2018 (CACV 31 of 2018).
The defendant filed four documents in support of the Pleadings Application:
(a)affidavit of Sarah Elizabeth Harrison, sworn 17 May 2018;
(b)affidavit of Grant Richard Donaldson SC, sworn 21 May 2018;
(c)submissions in support of the application, filed 29 June 2018 (Defendant's Submissions); and
(d)responsive submissions filed 13 August 2018 (Responsive submissions).
It the Defendant's Submissions, the defendant sought to rely on affidavits sworn by:
(a)Ms Harrison, dated 13 February 2018;
(b)Linda Cecilia Taylor, sworn 27 February 2018; and
(c)Richard David Armstrong, sworn 26 February 2018.
However, none of these affidavits were ever filed (and indeed I have not seen them). Accordingly, I disregard the submissions in par 12 of the Defendant's Submissions to the extent that they go beyond the factual material set out in filed affidavits referred to above ([15]).
The plaintiff filed two documents in opposition to the Pleadings Application:
(a)affidavit of Karina Louise Hafford sworn 4 May 2018; and
(b)submissions in opposition to the application, filed 19 July 2018 (Plaintiff's Submissions).
By email to my staff dated 22 May 2018, the defendant's lawyers sought leave to cross-examine Ms Hafford on her affidavit of 4 May 2018. Through my staff, I advised the parties that I would defer determining this request until after I had received written submissions.
By email to my staff dated 20 June 2018, and in the context of re‑programming the dates for the filing of written submissions, the plaintiff's lawyers sought the opportunity to file a responsive affidavit from Ms Hafford outlining the additional evidence that the plaintiff would have tendered at trial had the pleadings been in the form now sought by the defendant. Through my staff, I advised the lawyers for the parties that I would also defer determining this request until after I had received written submissions.
For the reasons which follow ([88] and [89]), I do not consider it necessary or appropriate to allow Ms Hafford to file additional evidence nor for her to be made available for cross-examination.

The state of the pleadings up to the trial of the action

In order to place the issues for determination in context, it is necessary to quote from the pleadings in some detail.
The statement of claim as at 29 March 2017 was that dated November 2012.[16] The relevant paragraphs are pars 28 and 31 to 35:
[16] Folio 5. The plaintiff's parents were still parties at that stage, hence the plaintiff is referred to as the first plaintiff.
28.The First Plaintiff sustained injuries.
(a)Perinatal asphyxia;
(b)Stage 2 hypoxic ischaemic encephalopathy;
(c)Fracture to the right clavicle;
(d)Right sided Erb's palsy;
(e)Global hypotonia;
(f)Renal impairment;
(The First Plaintiff's injuries)
…
31. By reason of the injuries the First Plaintiff has sustained loss of enjoyment of life, has residual disabilities, endured pain and suffering and suffered loss of amenities.
PARTICULARS OF RESIDUAL DISABILITIES
(a)Biphasic mild stridor;
(b)Right brachial plexopathy;
(c)Seizures;
(d)Hypotonia in the trunk;
(e)Delayed speech and language;
(f)Poor balance.
PARTICULARS OF LOSS OF ENJOYMENT OF LIFE
(a)The First Plaintiff's ability to engage in recreational activities has been impeded by his developmental delays and poor balance;
(b)Further particulars will be provided pursuant to the District Court Rules.
32.By reason of his injuries the First Plaintiff has required and will in the future require voluntary and paid care and domestic services, full particulars of which will be provided pursuant to the District Court Rules.
33.By reason of his injuries the First Plaintiff has and will require future medical treatment, aids, assistance and appliances, full particulars of which will be provided pursuant to the District Court Rules.
34. By reason of his injuries the First Plaintiff has sustained a loss of earning capacity, full particulars of which will be provided pursuant to District Court Rules.
35. By reason of his injuries the First Plaintiff has incurred out of pocket expenses and travel costs and will do so in the future, full particulars of which will be provided in accordance with the District Court Rules.
The injuries alleged in par 28 of the statement of claim were particularised in the plaintiff's particulars of damage filed on 22 February 2016[17] in the following terms:
[17] Folio 42.
As a result of his injuries the First Plaintiff has suffered and in some cases continues to suffer from:
(a)Acquired brain injury;
(b)Speech impairment;
i.Issues with word finding;
(c)Headaches;
(d)Cognitive difficulties, including:
i.Reduced processing speed;
ii.Impaired executive functioning;
iii.Impaired memory;
iv.Increased distractibility;
v.Decreased attention span;
vi.Greater difficulty with tasks requiring planning and organisation of new material;
vii.Reduced ability to learn new things;
(e)Generalised hypotonic muscle tone;
(f)Gross motor delay;
(g)Poor balance;
(h)Behavioural issues:
i.Occasional inappropriate and uncharacteristic social behaviour;
ii.Temper tantrums;
(i)Impeded speech:
i.Motor dysarthria;
(j)Disturbed sleep;
(k)Fatigue;
(l)Psychological symptoms:
i.Frustration;
ii.Mood swings;
iii.Anger;
(m)Inability or impaired ability to engage in recreational and leisure activities, including:
i.Riding his bicycle;
ii.Running;
iii.Team/contact sports;
iv.Throwing a ball.
The First Plaintiff is likely to receive an award for general damages in the sum of at least $300,000.00.
On 29 March 2017 the parties and their legal representatives attended a mediation conference before a registrar of the court. The defence at the time of the mediation conference was the defence dated 10 December 2012.[18] The relevant paragraph is par 19, which was in the following terms:
The defendant denies paragraphs… 31, 32, 33, 34, 35… of the statement of claim together with the particulars pleaded therein as if separately traversed and pleaded seriatim.
[18] Folio 7.
Ms Hafford, in her affidavit, goes into some detail as to what transpired at the mediation conference. The plaintiff waived legal professional privilege for the purposes of this application.[19] Ms Harrison attended the mediation conference[20], but does not depose (at least in the affidavit of hers which is filed) as to what occurred at the mediation conference. Mr Donaldson SC did not attend the mediation conference.[21]
[19] Hafford Affidavit, par 9.
[20] Hafford Affidavit, par 8.
[21] Donaldson Affidavit, par 5.
With two exceptions that are not relevant, evidence 'of anything said or any admission made in the course of the [mediation] conference is not admissible at the trial of the case'.[22] However, the present application is not the trial of the action, so the prohibition does not apply.
[22] District Court Rules 2005 (WA) r 35AA(2), (3).
For the reasons that follow, it is not necessary for me to go into the detail as to what occurred at the mediation conference in order to determine this application. It is sufficient to say that at the conclusion of the mediation conference there was an agreement in relation to the quantum of most of the heads of damages, totalling some $2,190,000. The agreement related to all heads of damages aside from future care, special damages and trustees fees.[23] There now appears to be a dispute as to the precise basis of this agreement.
[23] See generally: Ellis [949] - [953].
By letter dated 31 March 2017, Ms Hafford wrote to Ms Harrison in the following terms:[24]
[24] Hafford Affidavit, pages 23-24.
I refer to the Mediation that took place at the District Court of Western Australia on 29 March 2017.
I confirm an in principal agreement was reached to agree quantum on a number of heads of damages as follows:
1.Non-pecuniary loss  $275,000.00
2.Future medical expenses  $625,000.00
3.Past care (inclusive of interest   $490,000.00
up to the date of judgment)
4.Future loss of earning capacity  $635,000.00
(including superannuation)
5.Future equipment and accommodation             $20,000.00
modifications
6.Future staff requirements and  $125,000.00
additional holiday expenses
(not including future care of domestic

assistance)
7.Past and future travel expenses  $20,000.00

inclusive of interest
The following issues remain without agreement, namely:
1.Past special damages.
2.Future care and domestic assistance.
3.Trustee fees.
I confirm that the proposed mechanism to resolve the matters the subject of agreement are to raise the matters before the trial judge (when allocated) by way of an application to amend the Statement of Claim to expressly claim the amounts for the items claimed with an Amended Defence admitting the sums so claimed, coupled with an order that the trial then proceed on the specified heads of damage which are not the subject of agreement, liability and causation.
I note that if the trial judge does not approve of that mechanism and requires the agreed heads of damages to be by way of partial compromise with an application to the Court with an Opinion in support, the Defendant has agreed to pay a fixed sum of $20,000.00 in respect of that application.
In the passage quoted, Ms Hafford makes it clear that the plaintiff's understanding of the agreement reached was that the trial would only deal with the 'specified heads of damages which are not the subject of agreement, liability and causation'. The clear corollary of this proposition is that the trial would not deal with the heads of damages agreed, that is, that the parties would not call evidence and make submissions in relation to the heads of damages agreed.

Ms Harrison wrote to Ms Hafford by letter dated 5 April 2017 in which she referred to the mediation conference and confirmed that the quantum of future care was still in issue between the parties.[25] Ms Harrison did not take issue with Ms Hafford's statement that the trial would only deal with the 'specified heads of damages which are not the subject of agreement, liability and causation'. Nor did she express a caveat or condition to the agreement in terms now set out in the amendment proposed in the Pleadings Application (see [42] below).
[25] Hafford Affidavit, pages 25 -26.
There was then a case management hearing before me on 8 August 2017. In summary, counsel for the plaintiff told the court that quantum had been agreed save for three heads of damages. Counsel for the defendant agreed. Given the nature of the dispute, it is necessary to quote from the transcript of this hearing in detail.[26]
[26] ts 2 - 5.
GETHING DCJ:   Okay. Now, I've got the plaintiff's papers for the judge. Where are we at, Mr Droppert?
DROPPERT, MR:   Sir, the position is this. The parties have reached agreement on all but two heads of damages and there's a third that in - it's the trustee fees which is consequential head that we can't agree because we haven't got the headline number so to speak.
GETHING DCJ:   But is there agreement on the principle?
DROPPERT, MR:   Yes, I think it's just a calculation. We've agreed which trustees rates should be applied because there's some variation; I think that's right.
GETHING DCJ:   Yes.
UNIDENTIFIED SPEAKER:   No, there hasn't been.
DROPPERT, MR:   Okay. Well, we know that the one ‑ ‑ ‑
GETHING DCJ:   But presume ‑ ‑ ‑
DROPPERT, MR: We know the one the plaintiff wants is the cheapest of all of the private trustees and they're all cheaper than the public trustee so we doubt there'll be an objection then to a calculation based on ‑ ‑ ‑
GETHING DCJ:   Yes.
DROPPERT, MR: ‑ ‑ ‑ that trustee. Secondly, so that - so technically three heads of damages but in essence two, one of which is past treatment expenses which is really just an accounting exercise somewhere I suspect and the other one's future care. So future treatment, loss of earnings, past care, holidays, equipment, has all been agreed between us.
Now, the mechanism by which we wish to advance that is as follows. We file an amended - we have leave to file an amended statement of - I've been careful not to tell your Honour any of the numbers because ‑ ‑ ‑
GETHING DCJ:   That's okay. Yes.
DROPPERT, MR:   ‑ ‑ ‑ I understand your Honour's the trial judge.
GETHING DCJ:   Yes.
DROPPERT, MR:   But anyway from my position I'm satisfied that they're all reasonable figures ‑ ‑ ‑
GETHING DCJ:   Yes.
DROPPERT, MR:   ‑ ‑ ‑ the difficulty is technically it might be seen as a compromise because as soon as they don't match the number in the particulars then it looks like there's been literally a compromise but also legally a compromise but in any event the proposed mechanism is that there be an amended statement of claim that will specify past gratuitous services, X dollars. The defence will file an amended defence to admit that paragraph. Now, we've been - we haven't ‑ ‑ ‑
GETHING DCJ:   And ‑ ‑ ‑
DROPPERT, MR:   ‑ ‑ ‑ put it before the court yet because we need to know whether your Honour will approve of that process because it will save an enormous amount of court time.
GETHING DCJ:   Yes. Then the other - then in terms of the trustee's fees it may even be you can break it down in the statement of claim so that there's a statement of principle that trustee's fees at X per cent of the total amount - total damages or something so you can build that mechanism into your statement of claim.
DROPPERT, MR:   That will vary though, the percentage varies and the percentage is always higher on smaller sums than larger sums ‑ ‑ ‑
GETHING DCJ:   Okay. Well ‑ ‑ ‑
DROPPERT, MR:   ‑ ‑ ‑ but ‑ ‑ ‑
GETHING DCJ: ‑ ‑ ‑ it may - think about - see if you - see whether you can include the mechanism ‑ ‑ ‑
DROPPERT, MR: We'll get there.
GETHING DCJ: You'll get there. I mean, you'll get there.
DROPPERT, MR: We'll get there. I suspect at the end of the day there'll be a table and hopefully - well, it won't range from zero to 10 million because so many of the heads of damages ‑ ‑ ‑
GETHING DCJ: Yes.
DROPPERT, MR: ‑ ‑ ‑ will have been agreed but whatever X million to Y million in gradients of ‑ ‑ ‑
GETHING DCJ: Yes. That sounds eminent ‑ ‑ ‑
DROPPERT, MR: ‑ ‑ ‑ 100 or 200,000 lots and ‑ ‑ ‑
GETHING DCJ: Yes.
DROPPERT, MR: ‑ ‑ ‑ and because this process isn't necessarily one about the last mathematical dollar we would think that if the figure came between two figures the court will just fix the figure at the average of those two figures rather than do a reverse calculation because the difference would ‑ ‑ ‑
GETHING DCJ: Well, common sense will ‑ ‑ ‑
DROPPERT, MR: ‑ ‑ ‑ only be $1.50.
GETHING DCJ: Yes, common sense will prevail.
DROPPERT, MR: So on that basis then if your Honour is happy for us to do that ‑ ‑ ‑
GETHING DCJ: Yes.
DROPPERT, MR: ‑ ‑ ‑ we could - and there's one other aspect, because the claims of the 2nd and 3rd defendants have been settled there needs to be a tidying up of the statement of claim to remove them. The ‑ ‑ ‑
UNIDENTIFIED SPEAKER: Two more particulars ‑ ‑ ‑
DROPPERT, MR: Yes.
…
UNIDENTIFIED SPEAKER: ‑ ‑ ‑ but we'll deal with this one.
DROPPERT, MR: That's right. There are two additional particulars of negligence which seek to refine what it is so that it aligns closely with the expert evidence that's been served some time ago. My learned friend will explain his position but essentially it's not saying it can't be agreed - well, that there can't be agreement that the plaintiff be allowed the amendment, they just need a little time to check with their expert on the point.
So I expect that by the end of - by early next week the pleadings between the parties will come with a consent minute, you know, for a minute of amended statement of claim, minute of amended defence and seek the approval, in this case I think probably of your Honour ‑ ‑ ‑
GETHING DCJ: Yes.
DROPPERT, MR: ‑ ‑ ‑ make certain that the consent minute comes to your Honour.
GETHING DCJ:   Yes.
Mr Droppert then dealt with some other matters that are not relevant to the Pleadings Application. I then asked Mr Donaldson SC whether he had anything to add, to which he responded: 'My friend has, as one would expect, stated the position most accurately'.[27]
[27] ts 8.
Following the directions hearing, on 28 August 2017 the plaintiff filed and served:
(a)a Minute of Proposed Amended Statement of Claim dated 18 August 2017 (Amended SC);[28] and
(b)a consent order, signed on behalf of the defendant, pursuant to which the plaintiff would have leave to amend the statement of claim in terms of the Amended SC, with further service dispensed with.
The consent order also provided that the defendant have leave to file an amended defence (Amended Defence) by 25 August 2017.
[28] Folio 119.
On 28 August 2017 I made orders in terms of the consent order. [29]
[29] Folio 98.
The relevant portion of the Amended SC is pars 28 to 35 which provide as follows (with the revision marks excluded):
28.The Plaintiff sustained injuries.
(a)perinatal asphyxia;
(b)stage 2 hypoxic ischaemic encephalopathy;
(c)fracture to the right clavicle;
(d)right sided Erb's palsy;
(e)global hypotonia;
(f)renal impairment;
(g)traumatic brain injury
('The Plaintiff's injuries').
29.The Plaintiff's injuries were caused by the negligence and/or breach of duty of care of the Defendant.
[Particulars were provided]
30.By reason of the Plaintiff's injuries, the Plaintiff has required treatment.
[Particulars were provided]
31By reason of the injuries the Plaintiff has sustained loss of enjoyment of life, has residual disabilities, endured pain and suffering and suffered loss of amenities.
PARTICULARS OF RESIDUAL DISABILITIES
(a)Biphasic mild stridor;
(b)Right brachial plexopathy;
(c)Seizures;
(d)Hypotonia in the trunk;
(e)Delayed speech and language;
(f)Poor balance
PARTICULARS OF LOSS OF ENJOYMENT OF LIFE
(g)The Plaintiff's ability to engage in recreational activities has been impeded by his developmental delays and poor balance;
(h)Further particulars will be provided pursuant to the District Court Rules.
The Plaintiff claims the sum of $275,000.00.
32. By reason of his injuries the Plaintiff has required voluntary care and domestic services and claims the sum of $490,000.00. The Plaintiff will in the future require voluntary and paid care and domestic services, full particulars of which will be provided pursuant to the District Court Rules.
33. By reason of his injuries the Plaintiff has and will require future medical treatment, aids, assistance and appliances.
The Plaintiff claims:
(a)With respect to future medical expenses, the sum of $625,000.00;
(b)With respect to staff and holiday expenses, the sum of $125,000.00;
(c)With respect to accommodation and equipment expenses, the sum of $20,000.00.
34.By reason of his injuries the Plaintiff has sustained a loss of earning capacity and claims the sum of $635,000.00.
35.By reason of his injuries the Plaintiff has incurred and will do so in the future:
(a)out of pocket expenses, full particulars of which will be provided in accordance with the District Court Rules; and
(b)Travel and transportation costs in the sum of $20,000.00.
On 24 August 2017 the defendant filed an Amended Defence.[30] The relevant portion for the present application is par 19A, which provides:
[30] Folio 120.
19AThe defendant denies paragraphs 31, 32, 33, 34 and 35 of the statement of claim insofar as it is alleged that the plaintiff has sustained injuries as a result of the negligence and/or breach of duty of care of the defendant, but admits that should a finding of liability and causation be made, the amounts of damages claimed at:
(a)paragraph 31;
(b)paragraph 32, in relation to past care and domestic services;
(c)subparagraphs 33(a), 33(b) and 33(c);
(d)paragraph 34; and
(e)paragraph 35(b),
should be allowed.
On 2 November 2017 the plaintiff filed detailed particulars of damages (post trial), limited to the heads of damages that had not been agreed.

The issue of a potential amendment

The issue of a potential amendment first arose on 3 November 2017 in the course of oral closing submissions. The issue arose in response to a question from me as to how I might potentially deal with an award of damages in the event that I found that only some of the plaintiff's current injuries and impairments were caused by the negligence of the defendant.
It is instructive to quote from the transcript as to what then transpired:[31]
[31] ts 1674 -1677. See also ts 1689 – 1694.
GETHING DCJ:   How do I deal with damages? Let's assume that your half right and Mr Donaldson's half right. And assume - this is the argument - that I accept that there's a breach, accept that there's a pile of injuries, that there were a number of injuries which were caused, which were apparent at the time that Cooper left hospital. But I accept the defendant's evidence that in terms of global developmental delay, all the developmental issues, they can't be causally tied back to the initial birth injuries. How do ‑ ‑ ‑
DROPPERT, MR:   Well, I ‑ ‑ ‑
GETHING DCJ:   ‑ ‑ ‑ assess damages?
DROPPERT, MR:   Can I say in relation to that, first of all, the defendant has agreed, heads(?) of damages. And it's on the basis that, you know, if we establish that the plaintiff has sustained injury - I mean, we don't need to track, with respect, given the agreement how much of his brain damage is attributable to one radiological finding or another. I  mean, there's an agreement the plaintiffs' non-pecuniary loss is to be paid in the sum of $275,000. If your Honour find he sustained brain injury, he gets the $275,000. Now ‑ ‑ ‑
DONALDSON, MR:   Well - sorry. I will deal with that.
GETHING DCJ:   That's all right. You can ‑ ‑ ‑
DONALDSON, MR:   You can get a ‑ ‑ ‑
GETHING DCJ:   You can get a short ‑ ‑ ‑
DROPPERT, MR:   I don't need these interruptions.
GETHING DCJ:   Well, you can get ‑ ‑ ‑
DONALDSON, MR:   Well, I'm not going to allow that.
GETHING DCJ: Well, let's do it this way. I would - I don't know. I would ordinarily give counsel an opportunity to reply. So if there's a couple of points you want to make, save them for reply and we'll do them from there.
DONALDSON, MR: Well, your Honour, I'll deal with it now. It was dealt with on the first day. Agreements in relation to loss and damage are on the basis that the plaintiff succeeds in its case on breach of duty and causation. It is not that if you fail on something, you're going to be paid this. That is not what was resolved, your Honour.
GETHING DCJ: Well, see this is the - you've got a sort of a [continuum of] findings.
DONALDSON, MR: Well, your Honour, the agreement in relation to heads of damage have no relevance until your Honour finds that there have been breaches of duty and that they have caused the injuries, and that they have given rise to the symptoms that the plaintiff contends in its case. The ‑ ‑ ‑
GETHING DCJ: What if I find on the evidence that two of the symptoms are causally related, but not all of them?
DONALDSON, MR: Well, depends what the two symptoms are, your Honour.
GETHING DCJ: Because the causation argument that you've run is a checker board. You know, you jump - jumping back, it would have (indistinct). So what I am testing is: well, what happens if - is on the scenario that ‑ ‑ ‑
DONALDSON, MR:   Well ‑ ‑ ‑
GETHING DCJ:   - - - I agree with half of your both.
DONALDSON, MR: I've addressed the plaintiffs' case, which is perinatal asphyxia, stage 2 HIE causing all of the symptoms, your Honour. That's the plaintiffs' case, as we have understood it to be, and we've ‑ ‑ ‑
GETHING DCJ: But he's got ‑ ‑ ‑
DONALDSON, MR:   - - - addressed it that way.
GETHING DCJ:   Yes. But I think it's - and I guess I'm looking at the pleaded case. And you've got - so the thing is you get - and I just asked the question because it hadn't occurred to me what happens if I fall somewhere in between the two of you both.
DONALDSON, MR:   Well, your Honour, I didn't rise to make further submissions in relation to that. If your Honour's wants - and I rose simply because, again, my friend has incorrectly represented what the agreement between the parties was ‑ ‑ ‑
GETHING DCJ:   But see ‑ ‑ ‑
DONALDSON, MR:   - - - in relation to that matter.
GETHING DCJ:   And there's two issues there, because there's what the agreement is between the parties and the pleaded case. And I've got a pleaded case. I don't know what the agreement was. I don't know. It's not appropriate that I know. I've just got a pleaded case, and that's the sandpit within which I'm playing. That's confines the dispute.
DONALDSON, MR:   Well ‑ ‑ ‑
GETHING DCJ:   And perhaps I ‑ ‑ ‑
DROPPERT, MR:   Can I say if my learned friend hadn't been so quick and, may I say, so rude as to interrupt, what I was about to say, your Honour, was this: of course, if your Honour finds that although there's some damage, although there was some injury, there is no consequence of that at all. And damages for care and assistance is a result of the plaintiffs' disabilities for the past and the future, impairment of earning - you know, loss of earning capacity and so on, couldn't follow if your Honour made findings that there was no contribution at all to his condition.
The general damages are different, because the general damages are the non-pecuniary loss or an indivisible sum that's attributable globally. And I make the submission, and I maintain it: there's an agreement that the appropriate level of general damages for the plaintiff is the sum of $275,000. If your Honour finds that he sustained brain injury, your Honour has no option, with respect, other than to award that, because that is the sum that the parties have put to you as the appropriate measure of damages. Not if every single aspect of the plaintiffs' life can be sheeted home to the defendant.
Ms Harrison deposes that it was only at this point that she realised that the plaintiff's understanding as to the basis on which quantum was agreed differed from the defendant's understanding as to the basis. Ms Harrison goes on to depose that if 'the plaintiff's misapprehension had been raised at any stage following the mediation, and prior to its oral closing, I would immediately have corrected that understanding'. Further, 'as soon as the defendant's representatives became aware of the plaintiff's misapprehension, steps were taken to clarify the nature of the agreement with the Court'. [32]
[32] Harrison Affidavit, pars 8 – 10.
Mr Donaldson SC's evidence is in similar terms. Specifically, he deposes that '… until the last day of the trial, it was my understanding that the plaintiff and the defendant had agreed that the quantum of all heads of damage claimed by the plaintiff in the action other than damages for the cost of future care'. Moreover, it was his understanding that 'if the plaintiff succeeded in the whole of his claim the defendant would pay the agreed amount in respect of all heads of damage other than those for future care'. He, like Ms Harrison, only became aware that the plaintiff contended that the agreement that had been reached at the mediation conference on 29 March 2017 was different than his understanding which I have just quoted in the course of closing submissions on 3 November 2017.[33]
[33] Donaldson Affidavit, pars 11 - 13.
The relevant part of the Defendant's Minute is in the following terms (which I will refer to as the Proposed Amendment):
19AThe defendant denies paragraphs 30, 31, 32, 33, 34 and 35 of the statement of claim insofar as it is alleged that the plaintiff has sustained injuries as a result of the negligence and/or breach of duty of care of the defendant, but admits that should a finding of liability and causation in relation to each of the particularised injuries be made, the amounts of damages claimed at:
(a)paragraph 31;
(b)paragraph 32, in relation to past care and domestic services;
(c)subparagraphs 33(a), 33(b) and 33(c);
(d)paragraph 34; and
(e)paragraph 35(b),
should be allowed.
Particularised injuries
(a)The injuries alleged in paragraph 28 of the Statement of Claim as particularised in the Plaintiff's Particulars of Damage filed on 22 February 2016.

The proper interpretation of par 19A of the Amended Defence?

The Defendant's Submissions raise two issues for consideration. The first, addressed in pars 1 to 12, is the proper interpretation of par 19A of the Amended Defence. The second is, as an alternative, whether it should be given leave to amend in terms of the Proposed Amendment.
As to the first issue, the defendant's position is succinctly put in paragraphs 6 and 7 of the Defendant's Submissions:
In short, having regard to the manner in which the Amended Statement of Claim is pleaded, the reference in paragraph 19A of the Amended Defence to a “finding of liability and causation” being made can only be a reference to paragraph 29 of the Amended Statement of Claim (which is expressly denied in paragraph 19 of the Amended Defence) in which it is alleged that the injuries pleaded in paragraph 28 'were caused by the negligence and/or breach of duty of care of the Defendant'.
However, as became apparent to the Court and the Defendant on the last day of closing submissions, the Plaintiff contends that paragraph 19A should be construed so that if any (or even only one) of the Plaintiff's injuries were established and held to have been caused by the negligence and/or breach of duty of care by the Defendant, then the whole of the damages claimed in respect of all injuries should be allowed. That contention is untenable and should be dismissed…

In essence, the defendant asserts that par 19A of the Amended Defence, properly interpreted, required the plaintiff to prove each and every one of the injuries in par 28 of the Amended SC as a precondition to being able to rely on the admissions as to the agreed heads of damages. In my reasons for decision, I did not interpret par 19A of the Amended Defence as strictly. Rather, I interpreted that paragraph as requiring only a finding of liability and causation consistent with the Amended SC and reflecting the manner in which the parties conducted the trial. On that interpretation, I was satisfied that the precondition had been met.
Seven injuries are identified in par 28 of the Amended SC.[34] I found that the plaintiff had proven that he had sustained six of the injuries,[35] but not the seventh, being a fracture to the right clavicle.[36] On the defendant's interpretation of par 19A of the Amended Defence, the precondition of the agreement as to damages was thus not made out. It follows that the defendant is, in effect, asserting that I erred in relying on the agreed heads of damages[37] as the precondition for doing so was not made out.
[34] Quoted at [35] above.
[35] Ellis [709].
[36] Ellis [595].
[37] Ellis [949] – [950].
Whether or not I made the error set out in the preceding paragraph is not an issue appropriately addressed after trial and published reasons in the context of an application to amend the pleadings. Rather, the defendant's concerns are appropriately addressed by the Court of Appeal.
This leaves the Pleadings Application for determination.

Pleadings amendments - discretionary framework

The Pleadings Application is subject to District Court Rules 2005 (WA) (DCR) r 48A. This rule amends the application of RSC O 21 in its application to the District Court. The time within which a party may amend its pleading without leave expires 14 days prior to the date fixed for the first listing conference. In the present case, the first listing conference was on 31 October 2016. So the defendant requires the leave of the court to amend the defence.
As the defendant's application was filed after the case was listed for trial, the application is required to be accompanied by an affidavit from either a representative of the defendant or its lawyer.[38] The affidavit must address two issues. The first is the facts that have arisen since the defendant filed its certificate pursuant to DCR r 43(3a).[39] This rule provides that the 'lawyer who will appear at trial for a party must certify that he or she has reviewed the pleadings and is satisfied that they adequately define all the issues of fact or law that the party contends will need to be determined at trial, and the document containing this certification must be tendered at the listing conference'. The defendant filed its DCR r 43(3a) certificate on 22 December 2016.[40]
[38] DCR r 48A(3).
[39] DCR R 48A(4)(a).
[40] Folio 61.
The second matter the affidavit must address is the facts that ground the defendant's argument that the amendment is necessary.[41]
[41] DCR r 48A(4)(b).
Both these matters are adequately addressed in the affidavits filed by Ms Harrison and Mr Donaldson SC.
Pursuant to RSC O 21 r 5(2), the court has the power 'at any stage of the proceedings' to grant leave to amend a pleading 'on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct'. The power to amend is unfettered.[42]
[42] Hutton v Meston [2004] WASCA 178 [17] (McLure J, with whom Murray & Templeman JJ agreed).
The words 'at any stage of the proceedings' give the court jurisdiction to grant leave to amend even after judgment has been given.[43] Leave to amend pleadings at the conclusion of the trial is not unusual, and indeed may be desirable 'so that the record reflects the proceedings as they have been conducted'.[44] The fact that substantive reasons for decision have been handed down does not preclude leave to amend being given.[45] Nor does the fact that judgment has been given.[46] However, as I have indicated, in the present case, the right to bring the Pleadings Application was expressly reserved in the Judgment. This was done to avoid an argument that the court, having entered judgment, was functus officio.[47]
[43] Singh v Atombrook Ltd [1989] 1 All ER 385, 390 (Kerr LJ, with whom Sir John Megaw agreed).
[44] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, (293) (Dawson J). See also: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane & Dawson JJ); Water Board v Moustakas [1998] HCA 12; (1998) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan & Dawson JJ).
[45] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 17] [2018] WASC 8 [23] (Kenneth Martin J).
[46] The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (498) (McHugh J); Borg v Northern Rivers Finance Pty Ltd [2003] QSC 376 [30] (Mackenzie J).
[47] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 539 (Gibbs J).
In exercising the power to grant leave to amend, the court must have regard to the factors set out in RSC O 1 r 4B, which is in the following terms:[48]
[48] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [32] (Edelman J); Stuart v Hanna [No 3] [2018] WASC 208 [25] – [26].
4B. Case flow management, use and objects of
(1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of —
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
(2) These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).
In seeking leave to amend in terms of the Proposed Amendment, the defendant seeks to withdraw a series of admissions. The principles to be applied on an application to withdraw an admission in a pleading were summarised by the Court of Appeal in Water Corporation v Cardno BSD Pty Ltd in the following terms:[49]
[49] Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 [20] (judgment of the court). See also: Shine v Williams [2007] WASCA 194 [21] (judgment of the court); Donyette Pty Ltd v Toplodge Nominees Pty Ltd [2010] WASC 388 [16] (Corboy J); Hutton [21]; Essex Securities Pty Ltd v Lunt [2006] WASC 58 [16] (Newnes M).
1.The court has a broad discretion to permit or refuse an amendment which has the effect of withdrawing an admission; the ultimate question must always be what is in the interests of justice in the circumstances of the case.
2.But it is a serious matter to make an admission in a pleading and ordinarily a party should not be permitted to withdraw an admission in a pleading without good cause.
3.In determining whether or not to permit an amendment to withdraw an admission, relevant considerations will generally include:
(a)     the circumstances in which the admission was made;
(b)     the reason it is sought to be withdrawn;
(c)     the significance of the admission;
(d)     the time for which it has stood on the record; and
(e)     any prejudice that is likely to be suffered by the other side that cannot appropriately be compensated by an order for costs.
These factors reflect the factors relevant more generally on an application for leave to amend pleadings made late in the life of a case.[50]
[50] See generally: Aon Risk Services Australia Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175 [89] – [103]; [111 – [112] (Gummow, Hayne, Crennan, Kiefel & Bell JJ); Fletcher v St George Bank Limited[2010] WASC 75 [25] (Martin CJ ); Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 [52] (Beech J); Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [31] ‑ [32]; [Woodley v Woodley [2015] WASC 500 [20] (Pritchard J); The State of Western Australia v Cunningham [No 2] [2017] WASCA 197 [43] – [47] (reasons of the court).
The High Court in Aon Risk Services Australia Ltd v Australian National University made a number of observations about the considerations relevant to the exercise of a discretionary power to allow or refuse amendment, which were conveniently summarised by Beech J in Hightime Investments Pty Ltd v Lungan [No 2]:[51]
[51] Hightime [52]. See also: Sino Iron [31]; Stuart [27] – [28].
(a) the effect of an amendment on the court and on other litigants is relevant;
(b) there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(c) justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account;
(d) a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(e) the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay - this applies to natural persons and other litigants;
(f) the nature and importance of the amendment to the party amending must be taken into account;
(g) attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(h) the point in the litigation relative to the trial may be an important consideration;
(i) where a discretion is sought to be exercised in favour of a party, an explanation will be called for;
(j) the point can the point can be reached where a party has had a sufficient opportunity to put its case….
The plaintiff opposes the grant of leave on discretionary grounds.
As Bryson J observed in Mercantile Mutual Insurance (Australia) Ltd v Farrington, an 'amendment which is brought forward for the first time after the trial of the proceedings has been concluded and when many decisions relating to presentation of the parties' cases of fact have been made, including decisions about what evidence should be put forward, what should be not be tendered and what admissions should be made, faces special difficulties'.[52] For the combination of the reasons that follow, the defendant has not overcome those difficulties. I am of the view that applying the relevant discretionary factors set out above, it would not be an appropriate exercise of the power to amend to allow the Pleadings Application.
[52] Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634 [17] (Bryson J).

Basis on which the trial was fought

The trial was conducted on the basis of the admissions in par 19A of the Amended Defence, specifically that 'should a finding of liability and causation be made, the amounts claimed … should be allowed'.
The plaintiff was entitled to rely on the admissions made in par 19A of the Amended Defence. As McLure J observed in Hutton v Meston, 'it is a serious matter to make an admission in a pleading … because from that point onwards the admitted facts cease to be in issue in the action, and the parties proceed on that assumption'.[53]
[53] Hutton [25].
Along similar lines is the observation by Steytler J in Sangora Holdings Pty Ltd v Dunstan:[54]
It is a serious matter to make an admission in a pleading. From that point onwards the admitted fact or facts cease to be in issue and the action proceeds upon that assumption. It may often be the case that, absent the admission, the action would have proceeded upon a different basis. It has consequently been said on a number of occasions that, as a matter of principle, a party who has made an admission in a pleading should not be entitled to withdraw that admission without good cause. ... The withdrawal of an admission will often even less readily be allowed if it has stood for a long time ... or when the withdrawal will cause significant prejudice to the other side.
[54] Sangora Holdings Pty Ltd v Dunstan (Unreported, WASCA, Library No 990172) 13 April 1999, Steytler J (with whom Scott J agreed).
In Essex Securities Pty Ltd v Lunt, Master Newnes referred to the quote in the preceding paragraph and then observed:[55]
Accordingly, where a party, who is legally advised and does not suffer any disability, deliberately and without mistake makes an admission, and there is no relevant change of circumstances, prima facie justice and fairness require that the party not be allowed simply to change its mind …
[55] Essex [21].
Significantly, in reliance on the admissions, the parties conducted the trial on the basis that it was not necessary for either party to adduce evidence or make submissions in relation to the heads of damages agreed. Rather, the trial was fought (and the reasons for decision given), on the basis that the only heads of damage in issue were future care and trustees fees (with past treatment expenses being agreed during the course of the trial).[56] Both parties only considered the heads of damages remaining in dispute in their written opening submissions.[57] Indeed, the defendant's opening submissions provide that the 'majority of the heads of loss and damage have been agreed in the event that the plaintiff succeeds on liability'.[58] There is no reference in the defendant's written opening submissions to any caveat or condition on the agreement as to quantum as reflected in the Proposed Amendment.
[56] Ellis [949] – [953].
[57] Plaintiff's opening submissions (folio 99), pars 149 to 161; Defendant's opening submissions (folio 126), pars 72 - 92.
[58] Defendant's opening submissions (folio 126), par 72.
The expert reports tendered by the plaintiff, in particular those of Ms Burns,[59] included evidence relating to heads of damages that were agreed. However, there was both a measure of practicality and a measure of prudence in that approach. It would not have been practicable to have sought to excise the evidence as to future care from the balance of what were otherwise comprehensive reports. The approach was prudent in that it positioned the court to, in effect, approve the compromise of the agreed heads of damages.[60]
[59] Exhibit 4, Tab 28.
[60] Ellis [951].
The witnesses were examined and cross-examined on the basis that the only heads of damages in issue was future care (there being no witness called on the issue of trustees' fees).
Again, the extensive written closing submissions of the parties only addressed the heads of damage that had not been agreed.[61] Consistent with the opening submissions, the defendant's written closing submissions were on the basis that the 'majority of the heads of loss and damage have been agreed in the event that the plaintiff succeeds on liability'.[62] Again, there is no reference in the defendant's written closing submissions to any caveat or condition on the agreement as to quantum as reflected in the Proposed Amendment.
[61] Defendant's closing submissions (folio 136), pars 404 – 450; plaintiff's closing submissions (folio 137), pars 2 to 5, 406 – 417.
[62] Defendant's closing submissions, par 404.
The agreed heads of damages were not addressed by counsel for the defendant in his oral closing submissions on 3 November 2017. Nor did counsel for the defendant make reference to any caveat or condition on the agreement as to quantum as reflected in the Proposed Amendment. As set out above, the issue only arose in response to a question from me.
In essence, the trial was conducted on the basis foreshadowed by Ms Hafford in her letter of 31 March 2017 which I have quoted above ([28]).
The manner in which the present trial was conducted, in reliance on the admissions, is a significant factor against the grant of leave. The Pleadings Application is not one in which a party seeks to amend its case 'so that the record reflects the proceedings as they have been conducted'.[63] It would be a 'rare case indeed, for permission to be given [for leave to amend after trial], where the amendments raised legal or factual issues not previously dealt with'.[64] In University of Wollongong v Metwally [No 2] the High Court observed:[65]
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[63] Banque Commerciale (293) (Dawson J); Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437, 446 (Stephen, Mason & Jacobs JJ).
[64] Irani v St George Bank Ltd [2004] VSC 260 [24] (Byrne J).
[65] University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, 483 (judgment of the court); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8 (Gibbs CJ, Wilson, Brennan & Dawson JJ).
The defendant contends that the admission was made inadvertently or through error. Specifically:[66]
It is common cause that the amended pleadings were intended to (but to do no more than) give effect to an agreement reached between the parties in mediation. If the pleadings operate to do more than that, the interests of justice demands that the Plaintiff not be entitled to take advantage of the same. Indeed, even if the conclusion be that the parties were mistaken as to what each other considered they were agreeing to (and hence the amended reflected what the Plaintiff considered the agreement to be but did not reflect what the Defence understood and intended the agreement to be), then again the interests of justice demands that the amendment be allowed.
[66] Defendant's submissions, par 19.2.
However, it was the defendant who drafted the terms of par 19A of the Amended Defence. There is no evidence before the court to the effect that the plaintiff had any say in drafting the terms of par 19A of the Amended Defence. It must be the case that the defendant's solicitors were of the view, at the time of filing the amended defence, that par 19A of the Amended Defence accurately and completely reflected the agreement reached at the mediation conference.
It is the defendant who now says that the agreement reached at the mediation conference was not that which they originally recorded in par 19A of the Amended Defence, but it is as reflected in the Proposed Amendment. However, the terms of par 19A of the Amended Defence reflect the correspondence between the lawyers for the plaintiff and defendant which I have referred to above ([28], [29]).
The terms of par 19A of the Amended Defence also reflect the conversation that took place with counsel at the directions hearing before me on 8 August 2017. As I have quoted in detail above, the position put by counsel for the plaintiff was that 'the parties have reached agreement on all but two heads of damages'.[67] Counsel for the defendant agreed with this summary, and did not at any point seek to place a caveat or condition on the position put by counsel for the plaintiff to the effect now asserted in the Proposed Amendment.[68]
[67] ts 2.
[68] ts 8.
To the extent that there was any misunderstanding as to what was agreed at the mediation conference, this misunderstanding lies with the defendant. It did not take issue with Ms Hafford's description of the agreement in her letter of 31 March 2017. It chose to reflect its understanding of the agreement reached at the mediation conference in par 19A of the Amended Defence. It was open to the defendant at any stage prior to trial to seek to amend par 19A of the Amended Defence in terms of the Proposed Amendment. It did not do so.

I can discern no fault whatsoever on the part of the solicitors or counsel for the plaintiff in arriving at the position the defendant now says it finds itself in.
I do not consider that the defendant has demonstrated 'good cause' that it be permitted to withdraw the admissions contained in par 19A of the Amended Defence. In particular, as set out above, it conducted the trial on the basis that it was not necessary for either party to adduce evidence or make submissions in relation to the heads of damages agreed. This sits at odds with the position now expressed that par 19A of the Amended Defence does not accurately represent what was agreed at the mediation conference.

Prejudice to the plaintiff if the amendment is granted

In looking at the prejudice to the parties, the court will examine the nature and importance of the amendment to the parties.[69] This may require a detailed analysis of the specific grounds of prejudice.[70]
[69] Aon [102].
[70] Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 [80] – [86] (Steytler JA);
The defendant, as the party seeking the amendment, bears the burden of persuading the court that the amendment will not cause irremediable prejudice to the plaintiff. However, the plaintiff bears the evidential onus of adducing evidence in relation to the prejudice, at least where the proof of that prejudice lies in the hands of that party.[71]
[71] May v Thomas[2008] WASCA 215 [33] - [34] (Newnes AJA).
The prejudice to the plaintiff if the Pleadings Amendment is made is that he would not be entitled to the benefit of the admission as to heads of damages. This is because, on the facts found as set out in Ellis, I did not make a 'finding of liability and causation in relation to each of the particularised injuries', the particularised injuries being the 'injuries alleged in paragraph 28 of the Plaintiff's Particulars of Damages filed 22 February 2016'. It is sufficient to refer to two specific examples. The first is that I did not find that the plaintiff sustained a fracture to the right clavicle, as pleaded in par 28 of the Amended SC (see [46] above).
The second is that I did not find make any specific finding that the plaintiff at some stage suffered from impeded speech in the form of 'motor dysarthria'. This was because at no point did counsel for either party draw my attention to the need for me to make specific findings in relation to each and every particularised injury or impairment. Rather, consistently with the manner in which the trial was conducted, I made the relevant factual findings on the evidence.[72] In doing so I referred to dicta from the High Court that where, as in this case, there 'is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and the particulars earlier furnished will not disentitle a party to a verdict based upon the evidence'.[73]
[72] In particular at [790] – [791].
[73] Ellis [791].
For these reasons, I disagree with the position advanced by senior counsel for the defendant at the hearing before me on 15 March 2018 that, substantively, the Proposed Amendment did not make any difference to the Judgment, and was only of relevance to the appeal.[74] I also disagree with his assertion that, on the factual findings in Ellis, if the Proposed Amendment were allowed, there was no scenario on which the plaintiff would not be entitled to judgment in the amount assessed.[75]
[74] ts 1707.
[75] ts 1709.
Consequently, the effect of allowing the Pleadings Amendment would be to require the Judgment to be set aside. There are two logical options at that point. The first is that I award judgment to the plaintiff in the amount of the Judgment less the agreed damages of $2,190,000. This would be manifestly unfair to the plaintiff for two reasons. The first is that he would not have had the opportunity to have met the defendant's case as set out in the Proposed Amendment.[76] '[P]rocedural fairness is the dominant consideration when an application to amend is made after the trial has been completed'.[77] The second is that this would be substantively unfair as in Ellis I opined that 'on the extensive materials available to me, I am satisfied that the compromise made in relation to the agreed damages is appropriate'.[78] This strongly suggests that the interests of justice require the plaintiff to be given the opportunity to prove that he is entitled to damages in the order of magnitude reflected in the agreed damages. Indeed, it may be that he can prove that he is entitled to damages in excess of that agreed, given the specific factual findings otherwise made.
[76] Dare (664).
[77] Macks v Viscariello (2017) 353 ALR 201 [112] (judgment of the court).
[78] Ellis [951].
That leaves the second logical option, being to reopen the trial. This is accepted by the defendant as being a necessary consequence of the Proposed Amendment. Specifically, in the Defendant's Submissions it states that, 'any prejudice to the Plaintiff can be overcome by conditioning leave on the basis that the Plaintiff have liberty to adduce such further evidence that it may wish to adduce consequent upon the withdrawal of the admission, and that the Defendant pay the Plaintiff's costs of the same in any event'.[79]
[79] Defendant's Submissions, pars 19.4, 23.
The Defendant's Submissions continue that 'in the event that the court … upholds the application to amend but only on the basis that the plaintiff have liberty to adduce further evidence, the defendant accepts that there is no utility in doing so … until the … appeal has been heard and determined and then only if the defendant is successful (or partially successful) therein.[80] I disagree with this submission. Having reached the conclusion that granting the Proposed Amendment would have the consequence of requiring the Judgment to be set aside, it must follow that the trial must be reopened, evidence called, submissions received, I must re-decide the issues on the basis of the amended pleadings and a new judgment must be entered. It would be this new judgment that would then be the subject of review by the Court of Appeal. If the Court of Appeal sets aside the award of damages, the usual procedure is for it to substitute its own assessment thus saving the cost and time of a retrial.[81] So, it would need all the evidence to have been taken in the court below.
[80] Defendant's Submissions, footnote 9.
[81] Emery v Wilson (1974) 48 ALJR 131, 132 (Barwick CJ, with who the other members of the court agreed).
Reopening the trial at this stage would cause the plaintiff a significant degree of prejudice. The plaintiff would be put to the cost of having additional reports prepared and recalling witnesses to give evidence. This would inevitably cost more than if all heads of damage been addressed in the trial which has already occurred. There is then the emotional impact and personal strain on the plaintiff's parents of the delay and uncertainty of the further trial process.[82] The defendant has not satisfied me that this prejudice can be adequately overcome by an order for costs.
[82] Wiltrading [103] (Pullin JA)
It is convenient at this point to address the issue of whether Ms Hafford should be given the opportunity to place further evidence before the court and whether she is required to be available for cross‑examination. This issue on which Ms Hafford proposes to give further evidence is the additional evidence that she would have arranged for the plaintiff to have adduced had the Proposed Amendment been made prior to the trial of the action. The defendant wishes to cross‑examine her on existing evidence in this regard as to the detail of the evidence the plaintiff would have adduced.[83] However, as I have noted ([85]), the defendant has conceded that any grant of leave would carry with it an entitlement on the part of the plaintiff to adduce further evidence. Inherent in this concession is the premise that Proposed Amendment changes the defendant's pleaded case to the extent that the plaintiff should at least be given the opportunity to place further evidence before the court. This is in substance what Ms Hafford is saying in her affidavit, albeit from a retrospective perspective (viz, had the defendant's case at trial been as set out in the Proposed Amendment, the plaintiff would have adduced additional evidence).
[83] Defendant's Submissions, par 22; Responsive Submissions, par 21.
Given this concession by the defendant, there is no need for Ms Hafford to adduce further evidence, and no injustice to the plaintiff in not permitting this. Nor is there any need to invoke the 'sparingly exercised' power to require her to be made available for cross‑examination[84], and thus no injustice to the defendant from not permitting this to occur.[85] So I decline both these requests.
[84] Freehill Hollingdale and Page v Bandwill Pty Ltd [2000] WASCA 150 [29] (judgment of the court); RSC O 36 r 2(3).
[85] West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 [9] (McKechnie J).

Prejudice to the defendant if the amendment is not granted

The prejudice asserted by the defendant is that par 19A of the Amended Defence contains a series of admissions recording the outcome of the agreement at the mediation conference that were wider than it intended to make.[86] However, the defendant does not assert that it is prejudiced by allowing the Judgment to stand on the basis that the damages were assessed in a manner inconsistent with the agreement reached at the mediation conference. Indeed, as I have noted ([8], [83]), senior counsel for the defendant was of the view that the Pleadings Amendment did not impact on the Judgment.
[86] Defendant's Submissions, par 19.
Rather, the prejudice asserted by the defendant is hypothetical. Specifically, the reason why the defendant seeks leave to amend is because there is an appeal on foot.[87] One scenario which may emerge is that:[88]
(a)the finding on breach is upheld;
(b)the finding on causation is set aside;
(c)the Court of Appeal determines the issue of causation; and
(d)the Court of Appeal determines that the breach caused some, but not all, of the particularised injuries, for example, a mild palsy which resolved itself within a short period of time (I will refer to this as the 'middle ground scenario').[89]
The defendant's position is in essence that, in the middle ground scenario, it would be unjust for it to be bound to an agreement to pay damages in excess of $2 million.[90]
[87] ts 1706.
[88] ts 1706.
[89] Supreme Court Act 1935 (WA) s 59(4)
[90] ts 1706.
If the Court of Appeal determined that the defendant's negligence did not cause any of the pleaded injuries, then the factual basis for the admissions as to damages currently set out in par 19A of the Amended Defence would not be met. So the position would be the same whether or not the defence was amended. Subject to what I have said above as to the proper interpretation of par 19A of the Amended Defence ([46]), it is only in the middle ground scenario that the Proposed Amendment would make any difference.
Another scenario is that the Court of Appeal sets aside some or all of the decision and remits the matter back to the District Court for determination by way of a new trial, either as to the whole of the matter or part only of it (for example, assessment of damages).[91] Again, the prejudice would only arise if the District Court on the retrial finds the middle ground scenario.
[91] Supreme Court Act 1935 (WA) s 59(3).
It would be open to the defendant to submit to the Court of Appeal that, if the Court of Appeal determined causation on a middle ground scenario, then it should be permitted to renew its application for leave to amend the defence. In determining this application, the Court of Appeal would then balance the competing risks of injustice, including the issue of prejudice to the plaintiff. The defendant could also renew its application to amend the defence if the action was remitted to this court for a new trial, either in whole or in part. Any new trial would be a hearing de novo. The parties are not bound by the manner in which they conducted the original trial and may lead new evidence and put forward new arguments.[92]
[92] Venn v Tedesco [1926] 2 KB 227, 237 (McCardle J); Community and Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324, 327 (Finkelstein J).
The prejudice to the defendant is thus, at this stage, only hypothetical. It will have opportunities to address the prejudice should it cease to be hypothetical. This is a factor against the grant of leave to amend.

Defendant's opportunity to seek the Proposed Amendment

The reason for the delay in making an application for leave to amend is an important factor in the exercise of the discretion.[93] To quote the majority in Aon:[94]
The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached… to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
[93] Aon [98], [103]; Pollard v Endale Pty Ltd[2009] WASCA 189 [43] (judgment of the court); Wiltrading [92] – [94].
[94] Aon [103] (footnotes omitted).
Where there is a recent catalyst for the application, the court is more likely to grant leave, there having been no prior opportunity to raise the issue. This seems to have been a significant factor in the grant of leave in JL Holdings[95] and a significant factor against the grant of leave in Aon.[96] In the words of Justice Heydon in Aon: 'There was nothing to indicate that whatever was seen as relevant had not been available earlier if diligence had been employed'.[97]
[95] Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154 (Dawson, Gaudron & McHugh JJ).
[96] Aon [51] - [54], [106], [131].
[97] Aon [131].
Procedural fairness only requires that the defendant to have had a sufficient or proper opportunity to amend its defence.[98]
[98] Aon [112]; Hightime [52].
In the present case, as set out above:
(a)the perceived need for the amendment arose at the hearing on 3 November 2017;
(b)there was some conferral between the parties and communication with the court about the Pleadings Application being heard prior to the judgment being handed down;
(c)reasons for decision were delivered on 9 March 2018;
(d)before reasons for decision were delivered, counsel for the defendant informed the court that there was no reason why the reasons for decision should not then be delivered;
(e)the Judgment was entered on 16 March 2018; and
(f)the Pleadings Application was not commenced until 19 March 2018.
The fact that the Pleadings Application is made after trial, written decision and judgment being entered is of itself a significant factor against the grant of leave to amend.[99] It would require a particularly cogent explanation for the timing to justify the grant of leave.
[99] Mercantile Mutual [17].
There is no explanation for the delay in commencing the Pleadings Application between 3 November 2017 and 9 March 2018. It is evident from the orders sought in the Pleadings Application that a minute of proposed re-amended defence had been circulated as early as 9 November 2017.
More importantly, the defendant has not provided a satisfactory explanation for failing to commence the Pleadings Application prior to trial. At the very least, it should have been readily apparent to the defendant from the plaintiff's written opening submissions (which were filed on 18 August 2017) that the plaintiff was relying on the admissions in par 19A of the Amended Defence and was going to conduct the trial on the basis that it would not lead any evidence, nor make any submissions, on the agreed heads of damage.
In my view, the defendant had a proper and sufficient opportunity to make the Pleadings Application prior to trial and, significantly, prior to written reasons being provided, and has not provided a satisfactory explanation for not doing so.

The public interest

There is a clear public interest that litigation be conducted efficiently, both for the benefit of the parties, by way of minimising costs, and the wider administration of justice, by way of maximising the efficient use of available judicial resources. In addition to the case law to which I have already referred, this is reflected in RSC O 1 r 4B (which I have quoted above [55]).
The grant of leave to amend in this case, with the consequences I have identified, would not result in:
(a)the efficient disposition of the business of the court;
(b)the efficient use of available judicial resources; or
(c)the timely disposal of the business of the court.
In additional, there is a clear public interest in the finality of court proceedings. As to this, in Borg v Northern Rivers Finance Pty Ltd Mackenzie J observed:[100]
[T] here is a public interest in achieving finality in litigation. The need to allow repleading and in all probability hearing further evidence in what has already been lengthy litigation will be inevitable … [T]he public interest as well as the private interests of the litigants is something that must be taken into account. A decision to commit more resources to a case in circumstances where the amendment is sought for the benefit of hindsight when there are grounds for thinking that a choice was made to adopt a different strategy earlier is a serious one.
[100] Borg v Northern Rivers Finance Pty Ltd [31] (Mackenzie J). See also: Coulton v Holcombe (11) (Gibbs CJ, Wilson, Brennan & Dawson JJ).
In the present case the Pleadings Amendment is being sought with the benefit of hindsight to address a scenario which is currently hypothetical.
In my view, to allow the application, with the consequence of having to set aside the Judgment and reopen the trial, would undermine the public interest in the efficient conduct of litigation and the finality of the trial process.

What final orders are appropriate?

In summary, the Pleadings Application should be dismissed as:
(a)the parties conducted the trial on the basis that it was not necessary for either party to adduce evidence or make submissions in relation to the heads of damages agreed, and the defendant has not demonstrated any good cause as to why at this late stage it should be permitted to withdraw the admissions on which this approach was based;
(b)if the Pleadings Application is allowed, it would necessitate the Judgment being set aside and the trial reopened, something of considerable prejudice to the plaintiff;
(c)there is no prejudice to the defendant in allowing the Judgment to stand on the basis of the current suite of pleadings, being the pleadings on which the trial was conducted;
(d)any prejudice to the defendant can be adequately addressed by it renewing the Pleadings Application at the point in time at which either the Court of Appeal proposes to reassess damages or a new trial is conducted in the District Court;
(e)the defendant had a proper and sufficient opportunity to make the Pleadings Application prior to trial and, significantly, prior to written reasons being provided, and has not provided a satisfactory explanation for not doing so; and
(f)to allow the application, with the consequence of having to set aside the Judgment and reopen the trial, would undermine the public interest in the efficient conduct of litigation and the finality of the trial process.

I am of the preliminary view that costs should follow the event [101] entitling the plaintiff to the costs of the Pleadings Application. Further, for the reasons set out in Ellis (Costs), I am of the preliminary view those costs should be taxed as between a law practice and its client.
[101] District Court of Western Australia Act 1969 (WA) s 64 (DCA); Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 1(1).
I will hear from the parties on the issues of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
ASSOCIATE TO JUDGE GETHING
22 AUGUST 2018