Hockley v Board of Management St John of God Hospital
[2001] WADC 13
•30 JANUARY 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOCKLEY -v- BOARD OF MANAGEMENT ST JOHN OF GOD HOSPITAL [2001] WADC 13
CORAM: GROVES DCJ
HEARD: 25 JANUARY 2001
DELIVERED : 30 JANUARY 2001
FILE NO/S: CIV 2317 of 1999
BETWEEN: KYLIE MAREE HOCKLEY
Plaintiff
AND
BOARD OF MANAGEMENT ST JOHN OF GOD HOSPITAL
Defendant
Catchwords:
Practice - Amendment of pleadings - Application subsequent to listing for trial - Appeal from Registrar's refusal to allow amendment - Whether special circumstances shown - Prejudice to public interest and to opponent
Legislation:
District Court Rules, O 5 r 10
Workers' Compensation and Rehabilitation Act 1981, s 93D
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff: Mr B Nugawela
Defendant: Mr J R Ludlow
Solicitors:
Plaintiff: Friedman Lurie Singh
Defendant: McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Baume v Commonwealth (1906) 4 CLR 97
The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323
Case(s) also cited:
Nil
GROVES DCJ: For reasons which will become apparent this appeal was brought on as a matter of urgency and heard on 25 January 2001 when the appeal was dismissed. These are my reasons for dismissing the appeal.
This is an appeal against the decision of Registrar Kingsley made on 16 January 2001 dismissing the defendant's application for leave to amend its defence. The appeal came before me as a matter of urgency. In that context it is relevant that I note:
•The Notice of Appeal was filed on Friday 19 January 2001.
•Plaintiff's counsel became aware of the appointment for hearing of this appeal on Tuesday 23 January 2001.
•The appeal was heard on Thursday 25 January 2001.
•Friday 26 January 2001 was a public holiday.
•The defendant had arranged an appointment for the plaintiff to be reviewed by Dr F G Bell (orthopaedic surgeon), on Monday 29 January at 12.30 pm (to which appointment the plaintiff objected to attending and which was the subject of a separate order made by me following my order dismissing this appeal).
•The plaintiff resides in Bunbury.
•Arrangements are in place for Dr A Higham (General Practitioner, Bunbury) to give his evidence de bene esse on 1 February 2001 and Dr Bell and Dr S Cohen (Clinical Psychologist) to give their evidence de bene esse on 2 February 2001.
•The trial dates for this action were fixed at a Listing Conference on 14 August 2000.
•The trial is listed to commence on Monday 5 February 2001 and is listed for five days.
At the hearing of the application before the Registrar the plaintiff was desirous of putting forward affidavit evidence in opposition but the Registrar indicated that would not be necessary. His refusal of the application would confirm that. On the hearing of this appeal the plaintiff tendered an unsworn affidavit accompanied by an affidavit sworn by her solicitor deposing that she, the solicitor, had read the affidavit to the plaintiff who had confirmed that the contents were true and correct. Having regard to the urgency of the matter I received the unsworn affidavit subject to the plaintiff's solicitors filing a sworn copy within two working days and also subject to certain observations made by defendant's counsel to the matters raised in the affidavit.
History of the proceedings
The plaintiff was employed by the defendant as a Registered Nurse. Her claim is for damages for injuries sustained by her on 27 April 1997 when, as she alleges, she slipped and fell in the course of her employment. She alleges the incident was caused by the negligence of the defendant and that further or in the alternative the accident was caused by the defendant's breach of statutory duty and, or alternatively, breach, of its contract of employment with the plaintiff.
The following are the relevant dates in relation to the proceedings:
16 June 1999 Writ of Summons issued
3 December 1999 Statement of Claim filed
6 December 1999 Defence filed
7 April 2000 Plaintiff entered action for trial
8 June 2000 Pre-Trial Conference
14 August 2000 Listing conference when action listed for trial on 5, 6, 7, 8, & 9 February 2001
21 December 2000 Status conference on which occasion, (according to the plaintiff's unsworn affidavit), her solicitors were first advised that it was intended to make application to amend the defence
27 December 2000 Defendant's Chamber Summons with Minute of Proposed Amended Defence filed. Those documents were received by the plaintiff's solicitors on 2 January 2001
10 January 2001 Summons listed but adjourned. Subsequently defendant filed affidavits in support of the application which were sworn on 15 and 16 January 2001
16 January 2001 Application heard by Registrar and dismissed
19 January 2001 Defendant filed Notice of Appeal against Registrar's refusal to allow the proposed amendments.
The pleadings and proposed amendments
The Statement of Claim fully particularises the plaintiff's injuries/symptoms, her treatment/management, her residual disabilities, her loss of enjoyment of life, earning capacity and superannuation benefits, gratuitous services, rehabilitation expenses, special damages etc. The defendant does not admit that the plaintiff suffered injury in the course of her employment and otherwise denies all the matters pleaded in the Statement of Claim. Further the defendant alleges that if the plaintiff did suffer injury and loss such was caused or contributed to by the negligence of the plaintiff. Since they were filed the Statement of Claim and the defence have remained unamended.
By its application the defendant sought to add two further paragraphs to its defence. Paragraphs 11 and 12 of its Minute of Proposed Amended Defence are in the following terms:
"11.Further or in the alternative the plaintiff failed or refused to take any or any reasonable steps to mitigate the loss or damage suffered by her (if any, which is denied), by reason whereof the plaintiff is not entitled to recover such alleged loss and damage or any part thereof.
PARTICULARS
The Plaintiff was advised on numerous occasions by the following medical specialists to reduce her weight as it was contributing to her ongoing symptoms, hampering, her recovery and adversely affecting her capacity for work. Notwithstanding the advice of the medical specialist listed below, the claimant has failed or refused to address her weight problem.
Dr Barry White - report dated 27 July 1997
Dr Alan Home - report dated 13 August 1997
Dr John Rosenthal - report dated 6 January 1998
Dr Frank Bell - report dated 15 June 1999
Dr Frank Bell - report dated 20 January 2000
12.Further and or in the alternative if the plaintiff suffered injury, loss and damage (all of which is not admitted) the defendant says that such injury, loss and damage was not caused by the alleged accident but was caused or contributed to by:
(a)injuries sustained by the plaintiff in a motor vehicle accident on 26 May 1989 in which the plaintiff suffered injury to her neck and back;
(b)injuries sustained by the plaintiff in a motor vehicle accident on 15 January 1991 in which the plaintiff suffered injury to her neck;
(c)injuries sustained by the plaintiff in a motor vehicle accident on 30 May 1991 in which the plaintiff suffered injury to her neck;
(d)a congenital or pre-existing degenerative condition of the plaintiff's knees."
It is the defendant's submission that on the pleadings as they presently stand the issue of causation of loss is a live issue and the issue of the extent of the plaintiff's alleged loss is also a live issue. The defendant contends that the proposed amendments will clarify its non admission of the plaintiff's allegations of causation. As to the plaintiff's failure to mitigate (par 11) the defendant says that this goes to the same issue as causation and so no new issue is being raised. The proposed pleading is in recognition of the fact that the defendant must plead the failure to mitigate if it wishes to lead evidence on the issue as the burden of proof rests upon it. As to the prior accidents and knee condition (par 12) the defendant says that these matters at least so far as the back and headaches and nausea are concerned are already raised on the pleadings and the proposed pleading effectively particularises its denial that these matters are a consequence of the injury allegedly sustained at work.
Case management following entry for trial
The District Court Rules, O 5, deals with case management following entry for trial. In particular O 5 r 10, deals with interlocutory applications subsequent to listing for trial in the following terms:
"Any interlocutory application that may result in adjournment of a trial will only be granted upon special circumstances being shown by affidavit."
The defendant suggests that if the proposed amendments are allowed it would not necessarily result in the adjournment of the trial. That is so because it is said that the issues are "live" on the pleadings as they are and the amendments will narrow those matters. The defendant in its outline of submissions acknowledges that the issues raised in par 11 and par 12 of the Minute of Proposed Amended Defence have been the subject of common knowledge between the parties. No element of surprise is involved with the amendments. The submissions however belie the argument raised on the hearing of this appeal as to the necessity to plead these matters if the defendant wished to lead evidence as to the failure to mitigate and prior injury or condition. On the other hand the plaintiff argues that if the amendments are allowed that will inevitably lead to an application to vacate the trial dates. It would be necessary for further enquires to be made of the doctors and perhaps seek further medical opinion to refute the allegations raised. It would also be necessary to obtain files relating to the motor vehicle accident claims and have regard to such medical reports, opinions and submissions as there may have been in respect to those claims. It could not be expected that those matters could be satisfactorily attended to within the few days now left before the trial is due to commence. In those circumstances plaintiff's counsel foreshadowed an application to vacate the trial dates if the amendments were to be allowed. I am satisfied that if the amendments were allowed it "… may result in adjournment ..." of the trial. As a consequence it is necessary to consider whether or not "special circumstances" have been shown by affidavit.
Affidavits sworn on 15 and 16 January 2001 by a solicitor on behalf of the defendant were filed in support of the application. Annexed to the first affidavit were a number of medical reports which had either been obtained by the defendant or exchanged between the parties by way of discovery. As to the proposed para 11 amendment, it is evident that at least as early as mid 1997 the defendant was aware that the plaintiff was overweight, that she acknowledged this, that her excess weight may have been interfering with her spinal condition and general coping and that it was recommended that she take steps to reduce her weight. This was commented on in the reports of Mr Barry White dated 27 July 1997 and Dr Alan Home dated 13 August 1997 both addressed to the defendant's insurer. Those reports preceded by almost two years the commencement of these proceedings. Neither of the affidavits proffer any explanation as to why this issue had not been pleaded in the defence. The omission does not arise out of any information received since the action was entered for trial or as a result of any sudden or unexpected events. If it were by oversight then such has not been at all explained. In those circumstances I am not satisfied that the defendant has shown "special circumstances" for the proposed par 11 amendment to be allowed.
As to the proposed par 12 amendment the defendant contends that the plaintiff failed to disclose the full extent of her prior injury/injuries to any of the reviewing medical specialists. The plaintiff refutes that allegation and points to a number of medical reports wherein her previous history includes reference to inter alia, prior motor vehicle accident and severe whiplash injury, to headaches, neck aches and tingling down the arms and to low back pain and radiation of pain to the left buttock, the back of her left thigh and to her persisting knee condition. See the reports of Mr White dated 27 July 1997, Dr Home dated 13 August 1997, Dr J Rosenthal dated 6 January 1998 and Dr F Bell dated 15 June 1999 and 20 January 2000.
The back injury and pre-existing knee condition were well known prior to this action being entered for trial. As to the history of the plaintiff's motor vehicle accidents it was deposed that following Dr Home's report dated 25 July 2000, further enquiry was made. In the second affidavit it is deposed that information was received from the Insurance Commission of Western Australia on 22 December 2000. The lateness in discovery of the fact that the plaintiff had suffered injury in prior accidents was said to because the motor vehicle claims were in her maiden name and that she had since married. The lateness of the discovery lies squarely with those who were making the enquiry. It was known a long time prior to this action being commenced that the plaintiff had been involved in an earlier motor vehicle accident. The plaintiff had married only a few months before her accident at work. The defendant's insurer was aware, see the report of Mr White dated 27 July 1997 wherein there is reference to the plaintiff having been "… married since January 1997". If it were by oversight or omission that enquiry was not made earlier that, in my view does not constitute "special circumstances".
Further the second affidavit attaches a report of Dr N J Batalin dated 14 December 2000, wherein he "diagnoses the plaintiff's tendency for knock knee deformity, a congenital condition which may be the cause of the plaintiff's ongoing disability she allegedly suffers in her knees". The earlier medical reports to which I have referred make reference to the possibility of pre-existing underlying degenerative change in her knees. That was well known prior to the action being entered for trial. I do not consider that Dr Batalin's diagnosis is a sufficiently certain assertion to warrant the trial dates being vacated.
The sum total of my assessment of the information put before the Court in respect to the matters sought to be raised by the proposed par 12 of the amended defence is that "special circumstances" have not been shown which would warrant the amendment being allowed. That being so, that would be sufficient for the appeal against the order of the Registrar to be dismissed. Even so I will proceed to consider whether or not the general discretion to grant or refuse leave to amend should be exercised.
Application of the general discretion
The grant or refusal of leave to amend is a matter of discretion (Baume v Commonwealth (1906) 4 CLR 97). The exercise of that discretion must now take into account the principles and objects stated in Rules of the Supreme Court, O 1 r 4(a) and r 4(b) and reflected by O 29, where they are relevant. These are the Rules relating to the elimination of delays and the system of case flow management. In Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1995) 13 WAR 323 Seaman J (with whom Anderson J concurred) at 331 - 335 reviewed the authorities relevant to the granting of leave to amend particularly in light of the modern approach to case flow management. For the purpose of these reasons I adopt what was there said.
In answer to that, defence counsel relies on the statement made in the more recent decision of the High Court of Australia in The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146, per Dawson, Gaudron and McHugh JJ at 155:
"Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the Court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."
Without derogating at all from the principal there enunciated it must be pointed out however that that case, where leave to amend was allowed, is distinguishable from the present case. That was a commercial dispute involving a development company on the one side and a State Government on the other. They were not personal litigants and hence personal stress or anxiety was not a consideration. Costs orders were an adequate remedy for prejudice caused by the amendment.
In opposing the defendant's application to amend its defence the plaintiff deposes in her affidavit (to be sworn) that if the amendment is permitted the following consequences are possible, if not likely:
(a)an adjournment of the trial;
(b)she may be prejudiced in terms of future pecuniary loss calculations having regard to the application of s 93D of the Workers' Compensation and Rehabilitation Act 1981. In other words even if she is successful on negligence the delay could mean diminution of her pecuniary loss calculations below the statutory threshold.
(c)Substantial matters consequent upon the amendments would need to be investigated by her solicitors which would result in increased legal costs to her.
(d)The five days set aside for trial would not be sufficient time. Whether the trial was adjourned part heard or was listed at some future time, the length of trial will correspondingly increase her legal costs.
(e)Costs are of concern to the plaintiff since she has been required to provide the funding for trial and has mortgaged her only asset of any value, a block of land, to fund the action.
Furthermore, the plaintiff says that the workers' compensation payments which she is receiving as a consequence of her accident are less than her pre-accident wage by $95 gross per week. She understands that in approximately three weeks time her workers' compensation payments will cease as she will have exhausted the prescribed amount of $122,038.
When those matters are considered in the context of the judicial pronouncements referred to in the Tony Sadler case (supra) it is clear that not only will the plaintiff be prejudiced if the amendments are allowed she will be positively disadvantaged. It is not a situation where costs orders would be adequate to meet the circumstances. The plaintiff has the legitimate expectation that the trial will determine the issues one way or the other. The plaintiff in her affidavit states that she is under extreme stress whilst this trial is pending and that is confirmed in some of the medical reports. I find that she is blameless so far as the delay in the defendant raising these matters is concerned. The trial dates were fixed some five months ago and the trial is due to commence in one week's time. The hearing date is not sufficiently in the future to permit the plaintiff to meet the proposed amendment.
Whilst the plaintiff will be severely prejudiced if the proposed amendments are allowed, I also appreciate that the defendant may suffer prejudice. The consequence of the defendant's failure to plead at an earlier stage the matters now raised, and its delay in seeking to now amend the defence lies other than at the plaintiff's doorstep. As I have already indicated the defendant has not adequately explained the failure to earlier plead those matters. They do not arise out of sudden and unexpected events. In any event the amendments are not of such considerable importance to the defendant in the sense of being a complete answer to the plaintiff's claim, as to justify the consequences which will follow if the amendments are allowed.
In considering whether it is just to grant belated amendments, the Court must consider not only prejudice to the parties but also prejudice to the public interest. The prejudice to the defendant of the refusal of leave does not predominate over prejudice to the public interest and the plaintiff (as to which see Tony Sadler (supra)). Whilst justice must be accorded to the parties this Court must at the same time maintain its responsible use of scarce public resources. The pressure on the courts and the necessity that legal business be conducted efficiently, are matters of public interest and cannot be ignored.
Relevant to this issue is the fact that appointments have been made for three medical practitioners to give their evidence de bene esse in the next few days. Appointments have been made for a number of other medical witnesses to attend and give evidence at trial. If the trial were to be vacated all of these witnesses will necessarily be inconvenienced, no doubt at some cost. Likewise witnesses to whom subpoenas have issued will be inconvenienced. Furthermore there is the consequent waste of judicial resources at a time when the Court is under pressure because of the backlog of cases awaiting trial. Added to that is the delay of 6 - 12 months at least before this case would come up for hearing again.
For these reasons I am satisfied that the prejudice to the defendant is overwhelmingly outweighed by the prejudice to the plaintiff should the amendment be allowed and, albeit to a lesser extent, to the prejudice to the public interest. In those circumstances I decline to exercise the Court's discretion in favour of the defendant.
Accordingly the appeal will be dismissed.
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