Graham v Campbell

[2002] WADC 123

GRAHAM -v- CAMPBELL & ANOR [2002] WADC 123

Last Update:  24/06/2002

GRAHAM -v- CAMPBELL & ANOR [2002] WADC 123
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 123
Case No:	CIV:156/2000	Heard:	22 MARCH 2002
Coram:	COMMISSIONER GREAVES	Delivered:	21/06/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	CINDY GRAHAM PETER TERENCE JOHN CAMPBELL THE METROPOLITAN HEALTH SERVICE BOARD
Catchwords:	Practice and procedure Appeal from Registrar Defence Leave granted to plead previous action in respect of same damage Defence arguable where damage included foreseeable exacerbation of previous damage by subsequent medical treatment Issue for trial judge
Legislation:	Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947,s 7(1)(b)
Case References:	Nil Baxter v Obacelo Pty Ltd & Anor [2001] HCA 66 Darcy v Baines (1995) NSR(WA) 285 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522 Thompson v Australian Capital Television Pty Ltd & Ors (1996) 186 CLR 574 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : GRAHAM -v- CAMPBELL & ANOR [2002] WADC 123 CORAM : COMMISSIONER GREAVES HEARD : 22 MARCH 2002 DELIVERED : 21 JUNE 2002 FILE NO/S : CIV 156 of 2000 BETWEEN : CINDY GRAHAM

Plaintiff

AND

PETER TERENCE JOHN CAMPBELL
First Defendant

THE METROPOLITAN HEALTH SERVICE BOARD
Second Defendant

Catchwords:

Practice and procedure - Appeal from Registrar - Defence - Leave granted to plead previous action in respect of same damage - Defence arguable where damage included foreseeable exacerbation of previous damage by subsequent medical treatment - Issue for trial judge

(Page 2)

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947,s 7(1)(b)

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff : Mr B L Nugawela
First Defendant : Ms C J Thatcher
Second Defendant : Ms C J Thatcher

Solicitors:

Plaintiff : Friedman Lurie Singh
First Defendant : State Crown Solicitor
Second Defendant : State Crown Solicitor

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

Nil

Case(s) also cited:

Baxter v Obacelo Pty Ltd & Anor [2001] HCA 66
Darcy v Baines (1995) NSR(WA) 285
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522
Thompson v Australian Capital Television Pty Ltd & Ors (1996) 186 CLR 574
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603

(Page 3)

1 COMMISSIONER GREAVES: This is an appeal by the plaintiff from the decision of the learned Registrar on 10 October 2001 granting leave to the first and second defendants to amend their defence to plead that the plaintiff is unable to recover damages in the present action as she has received a settlement in relation to the same damage in another action.

2 In 1995, the plaintiff commenced Action No 815 of 1995 in this Court against the driver of the vehicle in which she was travelling when she suffered an injury. In July 1995 the plaintiff amended her statement of claim in Action No 815 of 1995 to include damage to the cauda equina. These proceedings were settled by the payment of $86,983.45 (inclusive of special damages) and costs.

3 The plaintiff issued a writ of summons in this action on 18 January 2000. The amendments to the defence of the first and second defendants allowed by the learned Registrar seek to rely on the provisions of s 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947. By par 13(d) of the minute of proposed amended defence of the first and second defendants dated 30 July 2001, the defendants allege that the damage alleged by the plaintiff in the present action is the same damage as the damage for which judgment was entered in Action No 815 of 1995.

4 In her affidavit sworn 30 July 2001, the solicitor for the defendants deposes to the fact that she first became aware of the settlement of the first action on 16 November 2000, and after discovery by the plaintiff gave notice on 20 April 2001 of the defendants' intention to seek to amend their defence. It was submitted on behalf of the defendants and I accept that if the defendants had been apprised of the previous proceedings and the fact of their settlement, they could have pleaded the present amendments in the original defence and that accordingly the defendants have not been guilty of delay.

5 The question remains, however, whether the defence pleaded in the amendments allowed by the learned Registrar is arguable. Counsel for the plaintiff submitted the amended defence is not arguable because the plaintiff has not brought more than one action in respect of damage suffered by the plaintiff as a result of a tort, within the meaning of s 7(1)(b) of the Law Reform Act. He submitted in the present case the plaintiff alleges successive injuries unrelated in both occasion and in cause by tortfeasors where each is not a tortfeasor in respect of "both those injuries". He said it is alleged "a second tort months after the original tort gives rise to a different damage."

(Page 4)

6 Counsel for the defendant submitted that in the first action at par 6(o) of the amended statement of claim dated 4 July 1995, the plaintiff relied upon the following particular of damage: "damage to the cauda equina resulting in severe bowel and bladder dysfunction." Counsel submitted that it is arguable that the damage pleaded in par 13 of the statement of claim in the present action is damage alleged to have been suffered by the plaintiff as a result of a tort in respect of which the plaintiff has brought more than one action, because the alleged damage included any foreseeable exacerbation of the damage by subsequent medical treatment.

7 It appears the learned Registrar so found and in my opinion he was correct to do so. The amended defence is arguable and the issue will be a matter for the trial Judge to determine. The appeal is therefore dismissed.

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