Hamilton v Australian Capital Territory

The plaintiff, Ian James Hamilton, sought damages for injuries sustained in a motor vehicle accident, which occurred on 4 April 1996. Hamilton alleged that the negligence of the first defendant, the Australian Capital Territory, through its Community Nursing Service, and the second defendant, Dr Tony Tonks, caused him to suffer pressure ulcers. The trial of the claim commenced on 1 July 2009, but was adjourned because Hamilton wished to amend his amended statement of claim. The defendants opposed the proposed amendments. Hamilton sought leave to amend his Amended Statement of Claim in accordance with a document attached to the Application in Proceedings filed on 30 November 2009 and heard on 30 August 2010. The defendants opposed certain of the proposed amendments. The court was required to determine whether Hamilton was entitled to amend his Amended Statement of Claim in accordance with the draft attached to the Application in Proceedings and, if so, in what manner. The court found that Hamilton could amend his Amended Statement of Claim to plead material facts alleging negligence by the first defendant, through its servants or agents, in respect of the period from 15 May to 21 June 2000 provided it was pleaded by alleging only material facts and by particularising the way it was alleged the negligence arises. The court also found that Hamilton should not be permitted to amend the Amended Statement of Claim by including new paragraphs 13(A), 20(A) and 31(A) in the draft attached to the Application in Proceedings. The court ordered that Hamilton have leave to amend the Amended Statement of Claim to plead material facts alleging negligence by the first defendant, through its servants or agents, in respect of the period from 15 May to 21 June 2000 provided it was pleaded by alleging only material facts and by particularising the way it was alleged the negligence arises. The court also ordered that Hamilton not be permitted to amend the Amended Statement of Claim by including new paragraphs 13(A), 20(A) and 31(A) in the draft attached to the Application in Proceedings. The court further ordered that Hamilton file and serve a copy of the Further Amended Statement of Claim on or before 27 April 2011. The plaintiff was also ordered to pay the defendants’ costs of and occasioned by the amendment, such costs not to be assessed or payable until judgment in these proceedings or other order. The defendants were granted leave to seek directions at the trial as to the costs payable under the order.