Gendy v CGU Insurance Ltd (Ruling)

[2018] VCC 1491

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-17-05071

NATHAN WADIE GENDY	Plaintiff
v
CGU INSURANCE LTD (ACN 004 478 371)	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2018
DATE OF RULING:	17 September 2018 (revised)
CASE MAY BE CITED AS:	Gendy v CGU Insurance Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1491

RULING
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Subject:  PRACTICE AND PROCEDURE

Catchwords:             Application to amend a statement of claim – trial listed for early October 2018 – application opposed – discretionary considerations relevant to the grant of leave

Legislation Cited:     County Court Civil Procedure Rules 2008 (Vic)

Cases Cited:Re AWB Limited (No 7) [2009] VSC 413; AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Meade v Nillumbik Australia Pty Ltd & Anor [2018] VSC 328; Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136

Ruling:  The plaintiff has leave to file and serve an amended statement of claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Kelsey-Sugg	Zaparas Lawyers Pty Ltd
For the Defendant	Mr D Oldfield	Norris Coates

HIS HONOUR:

Introduction

1       The plaintiff commenced a proceeding against the defendant by Writ endorsed with a Statement of Claim alleging that he is entitled to a declaration that he suffered permanent total disablement under an insurance policy.

2       The issue calling for a ruling is whether the plaintiff should be permitted to file and serve an amended statement of claim.

3       Mr D Kelsey-Sugg of counsel appeared for the plaintiff.  Mr D Oldfield of counsel appeared for the defendant.

The proposed amendments

4       The plaintiff’s solicitor, Mr Andrews, swore two affidavits essentially explaining the basis upon which the plaintiff seeks leave to amend the Statement of Claim. The defendant’s solicitor, Mr Weybury, swore an affidavit opposing the application.  It is unnecessary to refer to much of what they deposed to in the affidavits except in passing.

5       The critical amendment to the Statement of Claim is the addition of paragraph 5C.  The existing Statement of Claim alleges, under paragraph 5B:

“5B. The Plaintiff suffered an Injury in an identifiable Accident.

PARTICULARS

The Plaintiff suffered physical damage to his back while at work on 9 May 2012.  He suffered an acute aggravation of lumbar spondylosis while he was bending to pack an item. The physical damage occurred unintentionally and resulted in harm, Injury, damage or loss to the plaintiff.”[1]

[1]Paragraph 5B was part of a previous amendment to the Statement of Claim, hence the reason why it is underlined

6       The plaintiff now wishes to further amend the Statement of Claim by the insertion of a new paragraph 5C:

“5C.   In the alternative to paragraph 5B, the plaintiff suffered an Injury by 9 May 2012 in an identifiable Accident.

PARTICULARS

The Plaintiff suffered physical damage to his lumbar spine as a gradual process in the year leading up to 9 May 2012.  The physical damage occurred unintentionally and resulted in harm, Injury, damage or loss to the Plaintiff.”

7       The evidentiary basis for the amendment is the opinion of Mr Awad, neurosurgeon, who examined the plaintiff on 17 August 2018 and provided a medical report bearing the same date.  After considering the plaintiff’s history, the radiology and undertaking an examination of the plaintiff’s lower back, he turned his attention to questions asked of him relevant to diagnosis and causation.

8       Mr Awad diagnosed the plaintiff’s injury as “acute aggravation of lumbar spondylosis”.  On the question of causation, he considered that it was the nature of “his repetitive and heavy workplace activities” in addition to the specific onset of pain on 9 May 2012, when he lifted a heavy box that were the likely causes of the diagnosed injury.

The parties’ submissions

9       The power to give leave to amend is undoubted.  Order 36[2] provides that one of the bases upon which such leave can be granted is for the purpose of the real question in controversy between the parties being determined.

[2]County Court Civil Procedure Rules 2008 (Vic)

10      The plaintiff submitted that there were a number of reasons why leave should be granted.  Essentially, the reasons which I consider to be of importance are: there is no prejudice to the defendant; that the trial date of early October 2018 will not be imperilled; that there is an explanation for the delay in making the application; that no further interlocutory steps will be required, and that there is a real prospect that the alternative pleaded in paragraph 5C has a real prospect of success.

11      The defendant submitted that the application should be refused, essentially for three reasons: delay in making the application; paragraph 5C raises “a new issue”, and that the proposed amendments are futile.

12      The defendant referred me to the pleadings, the policy of insurance, and I otherwise read all of the affidavits and the exhibits in order to properly understand the basis upon which the defendant submitted that the application should be refused.

13      The defendant referred me to a number of authorities – Re AWB Limited (No 7);[3] AON Risk Services Australia Limited v Australian National University,[4] Meade v Nillumbik Australia Pty Ltd & Anor[5] and Namberry Craft Pty Ltd & Anor v Watson & Anor.[6]  The parties also provided me with helpful written outlines of argument which capture the relevant considerations to an application such as this consistently with the relevant authorities.

[3][2009] VSC 413

[4](2009) 239 CLR 175

[5][2018] VSC 328

[6][2011] VSC 136

Disposition

14      I propose to allow the plaintiff to amend the Statement of Claim consistently with the draft provided to me on the hearing of the application.  My reasons for allowing the application are as follows.

15      Firstly, there is a sound evidentiary basis upon which the application is based, namely, the opinion of Mr Awad that the plaintiff acquired the lower back injury by reason of two factors – the nature of his employment and a specific lifting incident.

16      Secondly, although the amendment is sought within weeks of the date of trial, the submission of the alleged delay needs to be seen in context.  It cannot be that every amendment to a pleading made late must be refused only by reason of delay.  Here, the evidence was obtained by the plaintiff after the receipt of Mr Awad’s report (dated 17 August 2018).  The defendant did not submit that the amendment changes the substance and character of the cause of action that it always understood it would face, requiring it to assemble a new defence to a new case.

17      Thirdly, there is no discernible prejudice to the defendant and, in any event, none was asserted.

18      Fourthly, the defendant did not submit that the trial date is imperilled.

19      The submission that the amendments raise a cause of action which is futile can only be considered on the evidence and an analysis of the liability of the defendant under the policy of insurance.  It was not something which was canvassed in such detail that puts me in a position where I can confidently reach any such conclusion.

20      Lastly, and speaking generally, the broader issues which may be raised by the amendment are matters for evidence, and analysis of the liability of the defendant under the policy of insurance and adjudication by the trial judge.  They are not matters upon which I can reach any satisfactory conclusion with any confidence.

Orders

21      I propose, therefore, to make the following orders:

·        The plaintiff has leave to file and serve an amended statement of claim by 4.00pm on 19 September 2018.

·        If the plaintiff is in possession of any documents which are relevant to the amendments to the Statement of Claim, then they must be discovered to the defendant no later than 4.00pm on 19 September 2018.

·        The defendant may file and serve an amended defence no later than 4.oopm on 21 September 2018.

·        The plaintiff must pay the defendant’s costs thrown away by reason of the amendment to the Statement of Claim to be assessed by the Costs Court on a standard basis, in default of agreement.

·        Liberty to apply

22      I chose to email these reasons to the parties, together with a draft order.  If the parties seek to challenge the drafting of the orders, and not the reasons for the making of the orders, then the parties must give 24 hours’ notice to the other party and request it be listed before me as soon as practicable and before 4.00pm on Friday, 21 September 2018.

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