Foreman v Lee and Transport Accident Commission

[2005] QSC 86

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

[2005] QSC 086

No BS7929 of 2004

FRANCES FOREMAN

First Plaintiff

and

L. LEE

and

TRANSPORT ACCIDENT COMMISSION

First Defendant

Second Defendant

BRISBANE

..DATE 13/04/2005

ORDER

HIS HONOUR:  This is an action for personal injuries.  Only

quantum is in issue on the pleadings.

When the trial was called on this morning, counsel for the

defendant applied for leave to amend the defence in accordance

with the draft handed to me (exhibit 2). 

Paragraphs 9 and 10 of the statement of claim are as follows:

"9.  As a result of the collision the plaintiff sustained
   personal injuries and consequential loss.  Particulars of
   the plaintiff's personal injuries are:

(a) headaches;

(b) musculo-ligamentous injury to neck;

(c) musculo-ligamentous injury to back;

(d) pain all down back;

(e) pins and needles in feet;

(f) sore shoulder blades;

(g) sore legs and knees;

(h) bruising from seat belt;

(i) stress and anxiety;

(j) C5 to C6 cervical fusion.

10.  As a result of the said incident and the injuries
   sustained by the plaintiff therein, the plaintiff:

(a) has suffered and continues to suffer, and will in the
     future suffer pain, discomfort and inconvenience;

(b) has required hospital, medical and ancillary
     treatment and has thereby incurred expense;

(c) will require ongoing hospital, medical and ancillary
     treatment in the future;

(d) has lost income and suffered a diminution of his/her
     capacity to earn income in the future;

(e) has lost the enjoyment of and suffered a diminution
     of her capacity to enjoy in the future the amenities of
     life;
     (f) has required the assistance of others in order to
     care for herself and carry out her daily tasks;

(g) has suffered and continues to suffer from
     post-traumatic stress disorder with 'traffic phobia'
     Features;

(h) has incurred special damages, full particulars of
     which will be provided prior to the trial of this
     action."

Paragraph 3 of the defence is as follows:

"3. As to the allegations in paragraphs 9 and 10 of the
     statement of claim, the defendants admit that the
     collision referred to paragraph 7 of the statement of
     claim was caused by the breach of the duty of care owed
     by the first defendant to the plaintiff, but do not admit
     the nature, extent and cause of any alleged injuries, or
     the consequences of these injuries.  The defendants have
     conducted some relevant inquiries, but are not
     sufficiently satisfied with the results of those
     inquiries, such that the defendants are able to make any
     admission with respect to the nature, extent and cause of
     any alleged consequences of the collision.  Further
     inquiries will need to be undertaken, those inquiries
     including but not limited to:

(a) provision by the plaintiff and consideration by the
     defendants of any further medical reports, X-rays or
     other investigations concerning the alleged injury;

(b) provision by the plaintiff and consideration by the
     defendants of further details relating to his claim for
     past and future special damages;

(c) independent medical examination of the plaintiff by
     medical specialists in relevant fields, which
     examinations are to be conducted on behalf of the
     defendants;

(d) any further reasonable investigations which may arise
     out of any material provided by the plaintiff, his
     statement of loss and damage or the independent medical
     reports prepared on behalf of the defendants."

Issue has been joined on that paragraph.

Exhibit 2 proposes to amend the defence by deleting all but

the first sentence of paragraph 3, replacing the words "do not

admit" therein with "deny" and adding a new paragraph 3A as

follows:

"3A. The defendants assert the denial in paragraph 3 because, if (which is denied) the plaintiff suffered the injuries alleged in paragraph 9 of the statement of claim, or any of those injuries, or any injuries at all, the following facts, matters and circumstances establish either that the plaintiff has suffered no damages at all under many of the divers heads of claim maintained by her and/or that the damages suffered by the plaintiff under the divers heads of claim maintained by her are compensable in amounts less than those asserted in paragraph 11(a) of the statement of claim:

(a) The plaintiff's complaints referable to her cervical
     and thoracic spine disorders (if any) are
     disproportionate to the objective evidence of residual
     pathology, such that those disorders do not give rise to
     any domestic incapacity or any incapacity for employment.

(b) The plaintiff now suffers from no specific
     psychiatric illness or condition for which the accident
     of 1 August 2000 is responsible.

(d) Prior to the accident of 1 August 2000 the plaintiff
     suffered from a psychiatric disorder, namely, depression,
     which had caused her to take overdoses of drugs on at
     least two occasions and for which she had undergone
     treatment (including being prescribed the antidepressant
     medication Prozac), which condition has continued to be
     productive of symptoms and/or impairment of function
     throughout the period from 1 August 2000 to the present
     day, and which condition will henceforth continue to be
     productive of symptoms and/or impairment of function.

(f) Whereas the plaintiff, as at 1 August 2000, was in
     part time employment as a cleaner with The Pickwick Group
     Pty Ltd, that employment, even had the accident of
     1 August 2000 not supervened, would not have continued
     beyond 21 September 2000, being the date of cessation of
     the contract between the plaintiff's employer and that
     client of the plaintiff's employer whose premises the
     plaintiff cleaned.

(g) The plaintiff's having been unable to work for
     remuneration since 1 August 2000 has had as its
     consequence that the plaintiff has been spared, and will
     in the future be spared, that expense which she would
     otherwise have incurred in transporting herself to and
     from her places of employment, and the sum in which the
     plaintiff has been spared such expense, and the sum in
     which the plaintiff will henceforth be spared such
     expense must be deducted from those damages otherwise
     compensable for economic loss and impairment of earning
     capacity, both past and future.

(h) If (which is denied) the plaintiff has in the past
     had a need to be rendered gratuitous care and assistance,
     whether as pleaded in paragraphs 10(f) and 11(a)(iv) of
     the statement of claim or at all, the need for that care
     and assistance would have arisen regardless of the
     supervention of the accident of 1 August 2000 and its
     consequences.

(i) The plaintiff's incurring the amounts claimed as
     special damages as pleaded in paragraph 11(a)(vii) of the
     statement of claim would have occurred regardless of the
     supervention of the accident of 1 August 2000 and its
     consequences.

(j) If (which is denied) -

(i) the plaintiff has a need to be rendered
       gratuitous care and assistance in the future,
       whether as pleaded in paragraph 11(a)(iv) of the
       statement of claim or at all; and.

(ii) the plaintiff will incur pharmaceutical and
       medical expenses, whether as pleaded in paragraph
       11(a)(vi) of the statement of claim or at all;

The plaintiff's future need for care and assistance, and the
need for plaintiff to incur expenditure in respects
immediately aforesaid, would have arisen regardless of the
supervention of the accident of 1 August 2000 and its
consequences."

A pleading may be amended as often as is necessary before a

filing of a Request for Trial Date pursuant to rule 378 of the

Uniform Civil Procedure Rules; thereafter leave is required:

see rules 380 and 470.  The defendant's application is,

obviously, after the request was filed.

The chronology of events is as follows: 

23 August 2002         claim and statement of claim filed in the District Court at Southport;

7 April 2003           defence filed;

20 May 2003            reply filed;

5 September 2003       plaintiff's particulars of out of

pocket expenses filed;

10 March 2004          first mediation held - it

was unsuccessful;

1 June 2004            second mediation held - it too

was unsuccessful;

28 August 2004         order that the action be transferred from the District Court to the Supreme Court;

1 December 2004        solicitors for defendant instructed by defendant to sign request for trial date and in accordance with those instructions, signed the

request for trial date;

2 December 2004        solicitors for defendant retained senior counsel and flagged to him the need to obtain advice on evidence on quantum and to discuss the matter generally;

17 February 2005     defendant held a conference with its

solicitors;

25 February 2005       action set down for trial at a callover - there is no suggestion that the need for any amendment was referred to the Court callover Judge.

2 March 2005           the solicitors for the defendant  wrote to their senior counsel, "We await counsel's advice in relation to quantum and evidence, including counsel's instructions in relation to witnesses at trial."

Approximately

9 March 2005         brief was delivered to senior counsel to advise on evidence and quantum and appear on trial.  I say approximately because the material in the solicitor's file does not disclose  the exact date.  The date was estimated by Mr Gurry from the place where the brief appeared in the file and it is possible that it was delivered slightly earlier than the date which he estimated.

22 March 2005          defendant's solicitors e-mailed their

counsel:  "Michael, this matter is listed for trial on 13 April.  I go on leave Thursday.  I am concerned about the defence and that it is not adequate in accordance with the
rules.  Also, the advice on evidence. 

How are you going and will we see a response by Thursday.  Thanks, Jim."

23 or 24 March, 2005    solicitors for the defendant received the draft amended defence from counsel.  They immediately sent it to the defendant.

1 April 2005           defendant instructed its solicitors to send the proposed amended defence to the solicitors for the plaintiff.

5 April 2005           proposed amended defence sent to the solicitors for the plaintiff. 

6 April 2005           that is on Wednesday last week, that

defence was received by the solicitors for the plaintiff.

The application for leave is opposed.  Two issues arise: the

question of any prejudice to the defendant and the explanation

for the delay.  As to prejudice, Mr Hannay, the managing clerk

who has had something to do with the file, gave evidence of

his understanding of the position.  It should be borne in mind

that Mr Hannay is only a managing clerk and has firm

instructions that he must get guidance from a solicitor or

consultant solicitor before taking any step in proceedings.

He perused the proposed amended defence but did not send it to

counsel until late yesterday or today.  He was unable to

consult his principal because that gentleman is personally

engaged in defending himself in professional integrity

proceedings in another Court.

His experience allowed him to say in the witness box that he

considered that further medical reports might be necessary in

regard to the issues raised by paragraphs (c) and (e) of the

proposed amended paragraph 3A.  When he gave that evidence,
counsel for the defendant intimated to the Court that those

paragraphs would be withdrawn from the material which it was

sought to insert into the defence by way of amendment.

For the plaintiff, Mr Di Carlo submitted that there was a need

for further consideration of the medical position.  That arose

from the fact that he had only received the amended defence

very belatedly and had not obtained proper instructions or

even given the amended defence proper consideration.  There is

no explanation of his failure to receive it last week.  He

wished, he said, to consider it, give advice to the client and

receive instructions from the client.  That is not an

unreasonable position.  It seems to me that it does mean that

an adjournment of the trial would be necessary.  Without at

this point embarking on any question of costs of an

adjournment, I simply say that an adjournment would be

necessary if the matter were to proceed due to fault on both

sides.  I do not propose at this point to try to allocate that

fault.

The effect of an adjournment is necessarily to prejudice the

plaintiff.  That is particularly galling in a personal

injuries case.  There is no other evidence of prejudice apart

from what I have discussed which could not be dealt with by an

order for costs on an indemnity basis, but as I say, that

question would have to be considered in the light of the

relative degrees of fault.  It is not possible to allow the

short adjournment which Mr Di Carlo sought due to the Court

arrangements and the matter would have to be restored to the

callover list.  That may create a difficulty in that in the

second half of this year it is expected that trial dates will

be difficult to obtain.

In summary, the question of prejudice to the plaintiff is

significant but is it is not in my judgment the determining

factor in this application.  I turn to the question of the

explanation for the delay given by the defendant.

Counsel submitted that the delay was due to inadvertence (I

infer he meant inadvertence on behalf of the solicitors for

the defendant) and that this inadvertence led to the failure to give notice earlier.  It seems to me that to explain the delay which has occurred as inadvertence is really a half-truth.  It is true that the practitioner handling the file on behalf of the solicitors for the defendant, Mr Gurry could have reviewed the pleadings before signing the Request for Trial Date.  It is not clear on the evidence exactly what would have happened had he done so.  More importantly, pleadings are not primarily his responsibility if counsel is to be engaged.  Counsel has the ultimate responsibility to ensure that pleadings reflect the case which he is to run.  That is a responsibility to the Court, as well as to the client.

In my judgment, the major reason for the delay in this case

was the client's instruction that ordinarily counsel was not

to be briefed before a Request for Trial Date was signed.

Mr Gurry gave evidence that although no specific instruction

had been given to counsel to review the pleadings in this

case, he would expect it to be done as part of an advice on

evidence.

He said, in cross-examination in answer to Mr Di Carlo:

"Is it not the case that you have dealt with counsel,
     perhaps including my learned friend, that when you ask
     for an advice on evidence, not only does counsel give you
     advice in respect of what doctors may be required, what
     further evidence you need, but often it's the case, is it
     not, that they visit the format of the pleadings and
     advise you of any inadequacies or any amendments that
     need to be made?  You'd agree with that, wouldn't you?--
     Well, I think as a general rule counsel would if they saw
     anything in - as a matter of just general policy with
     counsel, irrespective of this matter, would normally
     identify to their instructing solicitor any issues that
     they considered that required attention.

Well, I think you admitted to his Honour that as part of
     what your expectations were when you deliver a request
     for an advice on evidence, one of the issues and that is
     the state of the pleadings?--  That is correct, if -
     well, exactly.  I think I said to his Honour that we
     would generally see that counsel would consider if there
     was anything that required attention in relation to a
     matter.

Including the pleadings?--  Well, that would be included
     in it, yes."

In this view I think Mr Gurry was quite correct.  It is

ordinary practice and quite to be expected that counsel would

review the pleadings in the course of a brief to advise on

evidence.

In the present case, the position was that the defendant, a

motor accident insurer, instructed its solicitors that counsel

ordinarily was not to be briefed.  Mr Gurry gave the following

evidence:

"Do you have any procedure for getting an advice on
     evidence before signing the certificate in any case in
     your office?-- It would depend entirely on the client's
     instructions, your Honour.

Is this client a repeat client of yours?-- It is,
     your Honour.

Has it given you instructions not to obtain an advice on
     evidence?--  On previous matters, your Honour?

Yes?-- Yes, it has, your Honour.

And did you understand those instructions to carry over
     on to this case?-- It's a file by file assessment,
     your Honour, that we will seek the instructions of the
     client on.

And did they give those instructions in this case?-- They
     did, your Honour."

Mr Gurry went on to say that he did not himself consider

getting counsel's advice in relation to the pleadings before

he signed the Request for Trial Date.  His practice, he said,

was to have a conference with the client after the Request

was signed.  He said:

"The position would normally be that I would seek
     instructions from my client to sign the request for
     trial, then my client has a procedure whereby after the
     signing of a request for trial but before trial, we
     confer and review the file for the purposes of trial.  As
     a result of that conference, instructions were provided
     that counsel should be briefed and, appropriately,
     counsel should give an advice of evidence and quantum for
     the purposes of the trial."

I am satisfied that it was at that conference that the

decision to proceed to brief counsel was made.

The adequacy of pleadings and evidence at trial are matters

which must be the subject of advice from trial counsel.  It

must have been obvious to the defendant from the time of the

second mediation that this case had a real prospect of
proceeding to trial.  Its normal practice, as I have just

described it, is in my judgment anathema to the spirit and

terms of the Uniform Civil Procedure Rules. Failure to get

advice on evidence before a request for trial date is signed

is asking for trouble.  It is likely that pleading and

evidentiary issues will arise when counsel is briefed.  This

causes cost and delay as is apparent in the present case.  The Rules, and the practice of this Court, proceed on the basis that such issues will ordinarily be resolved before the Request is signed.  To obtain a date for trial at a callover while they are still outstanding is unacceptable.

The evidence was that the defendant's practice was adopted to

save money, depending on the amount at stake.  The effect of

the practice is potentially to place an undue burden on

plaintiffs where the action proceeds to trial.  The burden

consists of delay and if costs are not awarded to the client

on an indemnity basis any costs by which the plaintiff is

out-of-pocket.

The Uniform Civil Procedure Rules are intended to achieve

expedition by requiring early preparation for trial.  It

ill-behoves insurers to save money by delaying preparation

until a conference is held some time after a Request for Trial

Date is signed.  They do not have a right to disregard the

rules for their own convenience.  It is no answer for repeat

litigators like insurers to say that by adopting such

practices they save money in the end because many cases settle

anyway.  Plaintiffs have only one case.  Insurers should not

put plaintiffs at risk of delay and additional cost by a

practice designed to save themselves money in the bulk of

cases.

This case, typical of its kind, has been through the hoops of

the Motor Accident Insurance Act. It has twice been to

mediation.  By the time the second mediation was concluded it

should have been assumed that it would not settle and

preparation for trial should have begun accordingly.  Had that

occurred the problem in the defence would have become apparent

to counsel.

The Court endeavours to allocate early credible trial dates.

Regular litigants must cooperate by complying with the rules

in spirit and in letter.  In deciding to prepare for trial

after the Request was filed and only a week before it was set

down at the callover the defendant was not demonstrating such

compliance.  It could have begun steps to prepare for trial in

June 2004.

In my view no satisfactory explanation for the failure to

apply for an amendment at an appropriately early stage has

been advanced.  This is not a case of inadvertence but the

result of a procedure deliberately adopted by the defendant.

I am not satisfied by the explanation advanced for the delay.

For that reason the application is refused.

Two other matters should be mentioned.  I have not overlooked

the decision of the High Court in State of Queensland v. J L Holdings Pty Ltd (1997) 189 CLR 146. In that case the Judge did accept the explanation for delay. Moreover, the application for amendment was made six months before the trial, not on the day of trial. The position was quite different from the present case.

Second, I draw attention to the position of the solicitor.  A

solicitor is in a difficult position if a client gives

instructions which risk non-compliance with the rules.  I do

not criticise Mr Gurry.  As a witness he had no chance to put

his personal position, and the full position between him and

his client has not been explored.  However the case shows the

care which solicitors must exercise in accepting instructions

to cut corners.

The application is dismissed.

-----