Hodge v Shire of Swan
[1999] WASCA 94
•21 JULY 1999
HODGE -v- SHIRE OF SWAN [1999] WASCA 94
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 94 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:144/1998 | 6 APRIL 1999 | |
| Coram: | KENNEDY J WHITE J PARKER J | 21/07/99 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | AUDREY HODGE SHIRE OF SWAN |
Catchwords: | Procedure Appeal against refusal of an application for the adjournment of a trial made on the first day of the trial Appellant offering no evidence after refusal of her application Grounds of application that certain expert witnesses could not be consulted within time Appellant having decided not to rely upon an orthopaedic surgeon to establish her case at the trial (intending to rely upon the cross-examination of the respondent's witness) until after an amendment to the defence had been allowed and then finding herself unable to engage the services of the particular orthopaedic surgeon she wished to call Turns on own facts |
Legislation: | Occupiers' Liability Act 1985 Health Act (Swimming Pools) Regulations 1964 Health (Public Buildings) Regulations 1992 |
Case References: | Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Registrar v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1998) 78 WAIG 289 Inverell Municipal Council & Anor v Pennington & Anor (1993) A Tort Rep 81-234 Russell v Ciesielski, unreported; FCt SCt of WA; Library No 980222; 1 May 1998 Thackray v Hardcastle, unreported; FCt SCt of WA; Library No 980669; 17 November 1998 Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HODGE -v- SHIRE OF SWAN [1999] WASCA 94 CORAM : KENNEDY J
- WHITE J
PARKER J
- Appellant (Plaintiff)
AND
SHIRE OF SWAN
Respondent (Defendant)
Catchwords:
Procedure - Appeal against refusal of an application for the adjournment of a trial made on the first day of the trial - Appellant offering no evidence after refusal of her application - Grounds of application that certain expert witnesses could not be consulted within time - Appellant having decided not to rely upon an orthopaedic surgeon to establish her case at the trial (intending to rely upon the cross-examination of the respondent's witness) until after an amendment to the defence had been allowed and then finding herself unable to engage the services of the particular orthopaedic surgeon she wished to call - Turns on own facts
Legislation:
Occupiers' Liability Act 1985
(Page 2)
Health Act (Swimming Pools) Regulations 1964
Health (Public Buildings) Regulations 1992
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Ms B Mangan
Solicitors:
Appellant (Plaintiff) : Friedman Lurie Singh
Respondent (Defendant) : Phillips Fox
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Registrar v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1998) 78 WAIG 289
Case(s) also cited:
Inverell Municipal Council & Anor v Pennington & Anor (1993) A Tort Rep 81-234
Russell v Ciesielski, unreported; FCt SCt of WA; Library No 980222; 1 May 1998
Thackray v Hardcastle, unreported; FCt SCt of WA; Library No 980669; 17 November 1998
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by White J. For the reasons which his Honour gives, I agree that this appeal should be dismissed.
2 WHITE J: The appellant, as plaintiff, instituted proceedings in the District Court against the respondent, as defendant, claiming damages for injuries sustained by her when she jumped into the shallow end of a swimming pool. On the first day of the trial, the appellant applied for an adjournment. That application was refused, the appellant then offered no evidence and judgment was granted in favour of the respondent.
3 The appellant now appeals against both the refusal by the learned trial Judge to adjourn the trial and his Honour's judgment dismissing the action.
The appellant's pleaded claim
4 The appellant was born on 28 January 1940. In her statement of claim, the appellant pleaded that on 26 January 1991, she visited a public swimming pool owned and operated by the respondent. She jumped into the shallow end of the pool and claims thereby to have injured her left heel and left lower limb. She pleaded that there were no depth markings at the point of entry to the swimming pool and that she had relied upon a depth marking on the side of the pool opposite the point of entry, showing a depth of water between five and six feet in height. The appellant pleaded that the injuries sustained by her were caused wholly by the negligence of the respondent in that it failed to provide any or adequate depth markings; failed to warn the appellant of the inherent dangers of jumping into the pool at the point of entry; and failed to exercise reasonable care in the circumstances. Alternatively, she pleaded, the respondent, as occupier of the premises, breached the statutory duty it owed to the appellant pursuant to s 5 of the Occupiers' Liability Act by reason of the same alleged failures. The appellant sought damages from the respondent .
The Defence
5 The respondent denied the factual allegations and pleaded that at all material times there were regularly spaced, clear depth markers around the perimeter of the pool which complied with the requirements of the Health Act (Swimming Pools) Regulations 1964 and the Health (Public Buildings) Regulations 1992 promulgated thereunder. In addition, the respondent pleaded contributory negligence on the part of the appellant.
(Page 4)
6 Accordingly, on the pleadings, there were issues raised, including the nature and extent of the injuries allegedly suffered by the appellant and also the question whether it was her own negligence that caused any such injuries.
7 The appellant filed a "Chronology of Events" as follows:
"Day/DateEvent
1. Tuesday 28 April 1998 listing conference - trial dates
allocated for 22-24 July 1998
2. Monday 25 May 1998 Defendant's first Chamber
Summons seeking leave to
amend defence
3. Friday 29 May 1998 Defendant's Chamber Summons
seeking Order 28 RSC order
4. Wednesday 3 June 1998 Defendant's first Minute of
Proposed Amended Defence
forwarded for Plaintiff's
agreement
5. Tuesday 9 June 1998 Plaintiff's (sic) attends Professor
Hollingworth for medical
- examination pursuant to Order
28 RSC
6. Tuesday 16 June 1998 Defendant forwards further
Chamber Summons seeking
leave to amend defence
7. Thursday 18 June 1998 Plaintiff's solicitor received
Professor Hollingworth's report
to Phillips Fox dated 10 June
1998
8. Wednesday 24 June 1998 Registrar Wallace grants leave
(morning) to Defendant to amend defence
9. Wednesday 24 June 1998 inspection of Defendant's further
(Page 5)
- Documents - Mr Hardisty's
October 1997 report discovered
10. Thursday 25 June 1998 - miscellaneous correspondence
Wednesday 1 July 1998 passing between parties'
solicitors
11. Monday 6 July 1998 urgent application to his Honour
Macknay DCJ seeking
adjournment of trial dates
12. Friday 10 July 1998 his Honour Macknay DCJ
dismisses application for
adjournment, reasoning inter
alia that Mr Hardisty's recently
disclosed report was in any
event favourable to the Plaintiff
and the Plaintiff could have and
still can approach Mr Hardisty
to obtain his further opinions
13. Friday 10 July 1998 - numerous attempts to contact
Wednesday 15 July 1998 Mr Hardisty
14. Wednesday 15 July 1998 Mr Hardisty advises that it may
(afternoon) be 'pivotal' to obtain an
independent radiologist's
opinion/interpretation, there
would possibly have to be
further radiological
examinations/reports, that he
would need to examine the
Plaintiff before expressing any
further views, there would have
to be full documentation in
relation to the November 1996
motor vehicle accident pleaded
in the newly amended defence,
all before he could attempt to
prepare a further report.
Mr Hardisty advised that there
(Page 6)
- be accomplished prior to the
trial."
8 When the trial dates were fixed, on 28 April 1998, it was, it seems, the intention of the appellant to proceed to trial without calling a medical witness. Counsel for the appellant said, on the hearing of this appeal:
"The plaintiff was quite content to open - this is prior to the amendments and prior to the further opinions from Mr Hollingworth - the trial on the basis of the chronology of her treatment as detailed in the general practitioner's records . . . . "
9 Counsel was asked by the presiding Judge:
"You're proceeding to trial without a separate expert?"
10 Counsel replied:
"Without an expert, correct, your Honour. In fact we were going to go to trial on the one report of Mr Hollingworth. That is the earlier report which we considered not unhelpful or at worst innocuous and together with the general practitioner's notes which I can take your Honour to, as matters transpired, Mr Hollingworth produced another report in June 98 which was discovered very late in the piece and then Mr Hardisty's report surfaced for the first time on 24 June and that did significantly alter the evidential balance as far as the issues were concerned in the newly amended defence. It is true that Mr Hardisty was going to be called by the defendant at the trial and we were happy with that position until relatively late in the game for reasons which I had hoped to flesh out to your Honours shortly."
11 Notwithstanding what was then said, counsel, in the course of his further address, said that the appellant had medical reports from her general practitioner which had been exchanged pursuant to O 36A and that the general practitioners (sic) were on stand-by and ready to attend, unless the respondent agreed to the reports going in as evidence. It appears from that statement that the appellant did in fact have expert testimony available, at least in the form of the evidence of her general practitioner.
12 The plaintiff's problem is said to have arisen as a result of two of the amendments to the defence. The first amendment introduced the
(Page 7)
- additional particulars of the plaintiff's alleged negligence in that she "jumped into the pool when she could not see the depth markers or otherwise observe the depth of the pool because she did not have her glasses on". The second amendment added the allegation that if, which was denied, she had sustained the injuries alleged, her loss and damage were caused or contributed to "by a pre-existing degeneration of the right knee and right lower leg; by osteoarthritis in the right knee, lower leg, ankle and foot" and "by injuries sustained in a car accident in November 1996".
13 The plaintiff wished to canvass those allegations with Mr Hardisty but was unable to do so within the available time before the trial.
14 Prior to those amended allegations, the defence had raised the allegation that the plaintiff's injuries (if any) had been caused or contributed to by her own negligence but the particulars did not refer to her not having worn glasses at the time. The defence had not alleged the existence of a pre-existing degeneration, nor osteoarthritis nor the car accident. The minute of proposed amendments was sent to the plaintiff's solicitors under cover of a letter dated 3 June 1998. The plaintiff was invited to consent to the amendments but declined to do so, indicating that the amendment might necessitate further expert evidence and that new facts were raised.
15 On 17 June 1998, the respondent's solicitors sent a copy of a report by Professor Hollingworth following his examination of the appellant on 9 June 1998.
16 Accordingly, the respondent applied to the Registrar on 24 June 1998 for leave to amend the defence and this application was opposed by the plaintiff's solicitor. The learned Registrar made an order allowing the proposed amendment. The appellant did not then appeal against that order.
17 The affidavit of Brian Nugawela, the appellant's solicitor and counsel, filed in support of the appeal, included among its several annexures correspondence in February and March 1998 between the solicitors for the parties and the optometrists, Messrs Nelson & Du Bois, relating to the appellant's visual acuity and the strength of glasses prescribed for her.
18 In addition, there was a report from Professor Hollingworth dated 24 January 1997 in which there are references to the appellant's eyesight and to:
(Page 8)
- "[S]ome very early degeneration of the navicular and medial cuneiform …
The mid foot degeneration and navicular and medial cuneiform is again noted on both feet …
the progression of the osteoarthritic degeneration in the mid foot on both sides …
This lady has obvious osteo-arthritic degeneration."
19 Mr Nugawela also annexed a copy of the report from Mr Hardisty dated 28 October 1997 in which he says, inter alia, "I do not think any preexisting conditions are contributing to her incapacity." That report was seen for the first time by Mr Nugawela on 24 June 1998.
20 The fact of the car accident, if there were one, would obviously have been within the knowledge of the appellant at all material times.
21 On 10 July 1998, the appellant applied to his Honour, Judge Macknay, by a chamber summons dated 6 July 1998, for an order adjourning the trial, which, on 28 April 1998, had been listed for hearing on 22 to 24 July 1998. That application was refused on 10 July 1998, his Honour deciding that there was no change of view by Professor Hollingworth; Mr Hardisty's recently disclosed report was in any event favourable to the plaintiff, notwithstanding its late disclosure; the plaintiff had chosen not to appeal the decision of Registrar Wallace on 24 June 1998, granting leave to the respondent to amend its defence; and that the plaintiff could still approach Mr Hardisty to obtain his further opinion. That decision has not been the subject of any appeal.
22 Mr Hardisty was a witness proposed to be called by the respondent. It is apparent that the appellant did not at any time engage the opinion of a medical expert as part of her own case.
23 On the first day of the trial, namely 22 July 1998, the appellant applied to the learned trial Judge for the adjournment of the trial. That application was refused. The parties came back before the learned trial Judge the following day, when his Honour gave oral reasons for his decision (AB 7 - 10). The following exchange took place between the learned trial Judge and counsel for the appellant:
"FENBURY DCJ: I am told the defendant is ready to go to trial and as I say, the view I take of the matter is that a judge of this
(Page 9)
- court has already refused an application for an adjournment and I don't think there has been any significant alteration to the circumstances since that order was made, so the application for an adjournment is refused and the matter should proceed to trial. This is now the second day of the 3-day trial which of course has not commenced yet, so I now ask counsel for the plaintiff to commence. Mr Nugawela?
- NUGAWELA, MR: May it please your Honour. As I indicated to my learned friend yesterday afternoon after proceedings were adjourned, my client the plaintiff's position hasn't changed so we would simply - - -
FENBURY DCJ: When you say 'hasn't changed' what do you mean?
NUGAWELA, MR: I'm sorry, your Honour - hasn't changed since we wrote to my learned friend on 15 July. Put simply, it is that my client elects not to call evidence in this trial.
FENBURY DCJ: Well, does she do that - I suppose some might say that's the end of it and it is not for me to make any further inquiry, that's your client's position, but perhaps I will - I note that the incident upon which your client's action is based is alleged to have occurred, I think, in 1991.
NUGAWELA, MR: I think it was in January 1991.
FENBURY DCJ: This is now 1998.
NUGAWELA, MR: Yes.
FENBURY DCJ: There is a 6-year limitation period.
NUGAWELA, MR: Yes.
FENBURY DCJ: Can I ask you whether that matter has been considered by your client?
- NUGAWELA, MR: It has been considered by my client, your Honour, on the assumption that if a further action was purported to be brought, no doubt the defendant would be well advised to plead the statute of limitations or an abuse of process. I haven't discussed that with my learned friend but we have assumed the worst in that regard.
(Page 10)
- FENBURY DCJ: All right. Well, I don't think there is any call for me to inquire further into any of the implications of all of that. So the plaintiff is not producing any evidence and therefore is not capable or not able to prove her case unless everything is admitted on the pleadings, which would seem to me not to be the case.
NUGAWELA, MR: That is correct, your Honour."
24 There are five grounds of appeal, namely:
"GROUNDS OF APPEAL
1. In deciding to dismiss the Appellant's (Plaintiff's) application for an adjournment of the trial, His Honour erred in effectively compelling the Appellant (Plaintiff) to proceed to trial on the diametrically opposed recent opinions of Professor Hollingworth and Mr Hardisty without any reasonable opportunity for the Appellant (Plaintiff) to obtain relevant rebuttal expert evidence.
2. His Honour erred in effectively restricting the Appellant's (Plaintiff's) choice of expert witnesses to Mr Hardisty.
3. His Honour's acceptance of the Respondent's (Defendant's) submission that the matters the subject of the newly Amended Defence could have been discussed with Mr Hardisty within the Court precincts during the progress of the trial, was contrary to the proper administration of justice or perception of the same.
4. His Honour erred in disregarding the uncontradicted evidence that Mr Hardisty was unable to address the issues raised by the newly Amended Defence prior to the trial in a timely manner.
5.In the circumstances, his Honour erred in entering Judgment in the Action below for the Respondent (Defendant) in circumstances that were unfair to the Appellant (Plaintiff) or in circumstances which constituted a denial of natural justice to the Appellant (Plaintiff)."
(Page 11)
25 In the circumstances that the appellant elected to give no evidence, the result was inevitable. However, the appellant points to the decision of the Industrial Appeal Court in Registrar v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1998) 78 WAIG 289, in support of the proposition that a party's election not to call evidence at the trial of an action, leading to its dismissal, is by itself no bar to a successful appeal of an antecedent application of an interlocutory matter. In that case, the Full Bench of the Industrial Relations Commission refused an application by the Registrar to amend the particulars. In consequence, the Registrar declined to call any evidence, with the inevitable result that his applications were dismissed. The nub of the appeal to the Industrial Appeal Court was not the dismissal of the Registrar's applications but the refusal to allow an amendment to the particulars. The Industrial Appeal Court held that the Full Bench was in error, in the circumstances of that case, in refusing to allow the amendment of the particulars and the Registrar's appeal succeeded on that ground. The factual circumstances of that case were in important respects different from those of the case presently before us. Kennedy J (the presiding Judge in that case) said, at 294:
"In my opinion, the Full Bench failed to give weight to the absence of any prejudice to the respondents in the event of the proposed amendments being allowed, a factor which is of con-siderable importance in matters of this nature. On the material before us, it would have caused minimal delay in the resolu-tion of the applications. Counsel for the Registrar had already indicated his willingness to proceed with evidence that after-noon, which would not necessarily have involved evidence as to the contents of the clippings. It was apparent that, even had there been no question of an amendment, the hearing of the applications would necessarily have had to be adjourned at the end of the first day of the hearing, after which time further days would have had to be allocated for the balance of the hearing. It was never contemplated that the hearing would conclude on the first day on which it was set down. In the circumstances, the respondents would have had ample time within which to meet the new allegations which related, after all, to the actions of their own officials. The respondents offered no indication of any particular prejudice which they would suffer. On the other hand, although the Full Bench drew attention to the provision in the Act requiring the Commission, where appropriate, to have regard to the interests of the community as a whole, there is no
(Page 12)
- indication that it did so have regard, despite the fact that, in my view, the observance of orders of the Commission is a matter in which the community as a whole has a clear interest. In my view, the discretion of the Full Bench miscarried, and discloses an error in law which led to the dismissal of the applications."
26 In the present case, the application for an adjournment of the trial, which had been listed for three days, was made on the first day of the hearing. If it had been granted, the trial dates fixed would no doubt have been wasted. There is no appeal against the refusal by Judge Macknay of such an adjournment and the learned trial Judge said that he did not think that there had been any significant alteration to the circumstances since Judge Macknay's decision.
27 The decision appealed against was made in the exercise of his Honour's discretion. The relevant principles which apply to an appeal against a discretionary judgment are well settled. In Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, at 627, Kitto J said:
"So, too, there are to be found in many of the cases de-cided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle. Yet in that wider area it is clear that such statements are not exhaustive. I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513 at 532-534to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presump-tion in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise
(Page 13)
- the discretion which the law reposes in the court of first instance: House v The King (1936)55 CLR 499 at 504-505.
- …
In House v The King (1936) 55 CLR 499, at 504-505,Dixon, Everett and McTiernan JJ said -
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the posi-tion of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his or-der, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discre-tion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred'."
"This was an issue that was until the amendments were made to the defence, a question of causation and being able to see across the distance of a pool was not an issue until it was raised as a causation issue, in paragraph 9.4 because if your Honours look at the early optometrist's report which is on page 41 of the appeal book, the issue wasn't put to the appellant's optometrist."
29 He was asked by the learned presiding Judge:
(Page 14)
- "Again, it would not take long to find out about that. What steps were taken after the amendment to rectify the position so far as the appellant was concerned?"
30 Counsel replied:
"Well, your Honour, nothing, with respect; nothing was taken and that is the true position in relation to that issue. The main focus in relation to the amendments were brought about in the question of quantum and the other aspects of the amended defence . . .
. . . the simple point we make is that the question of causation and her vision was yet another issue in the jigsaw which was new which confronted her at the beginning of this trial which was not addressed with the optometrist previously but appeared for the first time in the newly amended defence."
The grounds of appeal
31 In relation to the first ground of appeal, it is of interest that, although the appeal was heard more than eight months after the decision appealed against, the appellant has not proffered any expert medical testimony which would support a proposition that, had she been given the adjournment sought, she would have been able to obtain medical evidence in rebuttal of the evidence of Professor Hollingworth. The learned trial Judge did not compel the appellant to proceed to trial on the basis suggested in the first ground of appeal. It was the appellant's decision not to have available an expert medical witness for the trial. In my opinion, there is no merit in the first ground of appeal.
32 The second ground of appeal has not been made out, as his Honour's decision did not restrict the appellant's choice of expert witness to Mr Hardisty, whether in effect or at all. The appellant's earlier application to adjourn the trial had been dismissed by Judge Macknay and the appellant's problems seem to have arisen entirely from the fact that the appellant had elected not to call an expert medical witness until the amendment to the respondent's pleading caused her advisers to consider that such an expert should have been retained. As appears from the passage cited above, counsel for the appellant informed the Court that, after the amendment to the respondent's pleadings, nothing was done to rectify the position so far as the appellant was concerned.
(Page 15)
33 The amendments to the respondent's defence may be summarised briefly as follows:-
1. An allegation that there were clear depth markers around the perimeter of the pool and that these complied with the requirements of the Health Act (Swimming Pools) Regulations 1964 and the Public Building Regulations;
2. The addition of the following further particulars of the allegation that, if the appellant did sustain the injuries alleged, these were caused or contributed to by her own negligence, namely her failure to keep a proper lookout, jumping into the pool when she did not know the depth of the pool, her failure to read the depth markers or observe the people in the pool to ascertain the depth, jumping into the pool when she could not see the depth markers or otherwise observe the depth of the pool because she did not have on her glasses; her failure to use the steps provided.
3. An allegation that if she suffered injuries, her injuries, loss and damage was caused or contributed to be a pre-existing degeneration of the right knee and lower right leg; osteoarthritis in the right knee, lower leg, ankle and foot and by injuries sustained in a car accident in November 1996.
4. The deletion of some of the allegations previously made in the defence.
34 In her statement of claim, the appellant had alleged that there were no depth markers at the pool and this had been denied in the original defence. In addition, she had alleged, as one of the particulars of her injuries, that she had suffered acceleration and/or exacerbation of pre-existing asymptomatic degenerative and/or arthritic changes in the ankles, lower back and hip regions, all of which had been denied by the respondent in the defence.
35 The respondent's proposed amendments to the defence were sent to the appellant's solicitors under cover of a letter dated 3 June 1998, which invited the appellant to consent to the amendments. In fact the amendments were opposed, unsuccessfully, as it turned out.
(Page 16)
36 It appears from the affidavit of Mr Nugawela that he had seen a report by Barry Hall & Associates dated 12 February 1996 during his inspection of documents in or about April 1997. That report confirms the existence and status of the depth markers at the pool.
37 References had been made to the appellant's degenerative osteoarthritis in medical reports from Professor Hollingworth dated 24 January 1997 and 10 June 1998. In his report of 28 October 1997, Mr Hardisty expressed the view that he did not think that "any preexisting conditions are contributing to her incapacity".
38 In September 1997, the appellant responded to several Interrogatories directed to the circumstances and result of a motor vehicle accident in which she was involved in November 1996 when the car in which she was a passenger was struck from behind.
39 As the defence stood before the amendment effected in June 1998, therefore, issues had been raised concerning the depth markers, the pre-existing degenerative and arthritic changes in the appellant and the alleged negligence of the appellant. Accordingly, I do not think that the amendments to the defence were such as to raise entirely new matters or indeed matters with which the appellant should not have been ready to deal. It is difficult to see how the appellant would have expected to establish her case without expert medical testimony, if the matter had proceeded on the basis of the unamended defence. Counsel for the appellant seemed to suggest that the appellant had decided that she would rely on the cross-examination of the respondent's witness, Professor Hollingworth. What she would have done had the respondent not called him is a matter for speculation, as the onus of proving her injuries and damages would have rested squarely upon the appellant.
40 The appellant did not appeal within time against the order of the Registrar allowing the amendment, although a belated application was made for leave to bring such an appeal out of time. The learned trial Judge expressed the view that there was no merit in an appeal against the decision of the Registrar and that is not now the subject of complaint.
41 In my opinion, the appellant has not demonstrated that there was any error on the part of the learned trial Judge in refusing the belated application for an adjournment in all the circumstances.
42 I would dismiss the appeal accordingly.
(Page 17)
43 PARKER J: I have had the advantage of reading the reasons of White J and I agree with his Honour that the appeal should be dismissed. I would only add the following observations.
44 The primary contention for the appellant on this appeal is that the learned trial Judge "erred in effectively compelling the appellant (plaintiff) to proceed to trial on the diametrically opposed recent opinions of Professor Hollingworth and Mr Hardisty without any reasonable opportunity for the appellant (plaintiff) to obtain relevant rebuttal expert evidence".
45 At the commencement of the trial on 22 July 1998 the appellant had not procured expert specialist evidence to rebut Professor Hollingworth. Why that occurred must, however, be considered in more detail. The presence of degenerative and osteoarthritic changes, before the swimming pool incident which founded the appellants action, was clear from reports that were given early in 1997 and in 1998. Indeed the appellant's own particulars of injuries contended for the acceleration and exacerbation of pre-existing degenerative and/or arthritic changes. While there appears to have been some variation of opinion as to the precise location of these changes, it was clear that the nature and extent of these pre-existing changes and their inter-relationship, if any, with the injuries resulting from the swimming pool incident was a live issue between the parties; an issue that was sufficiently raised by the defendant's denials in the original pleadings.
46 By letter dated 3 June 1998 the appellant's advisers had notice of the defendant's intention to seek to amend the defence inter alia to assert as a positive issue the relevance of pre-existing degenerative and arthritic changes. As indicated, that did not introduce novelty. By then, one would have expected the appellant's case for trial to have been assembled. Indeed counsel insists that it was. Glaringly absent from the appellant's case, however, was any specialist expert evidence dealing with this issue, even though it was known that Professor Hollingworth had given an opinion to the defence well over a year before against the appellant's case in this respect. It is contended that the appellant's advisers intended to rely on cross-examination of the Professor. It was also suggested they would rely on the evidence of the general practitioners she had consulted, but as far as appears this is hardly directed to meeting the opinion of the Professor. It must be said that the appellant's case was manifestly vulnerable on this issue. Nothing was done to strengthen this deficiency in the appellant's case even after notice of the proposed amendment was received in early June 1998.
(Page 18)
47 On or about 17 June 1998 the appellant's advisers became aware of two further specialist expert medical reports. An updated report dated 10 June 1998 of Professor Hollingworth, who saw the appellant on 9 June, which in essence took further the matters noted in the earlier report. The second report was one dated 28 October 1997 by Mr Hardisty who took a position opposed to the Professor and entirely in favour of the appellant on this issue.
48 Still no steps were taken toward securing any further evidence on this issue until after leave was given to amend the defence on 24 June 1998. Only then was an unsuccessful attempt made to secure a review before trial by Mr Hardisty and there were unsuccessful attempts to arrange for another specialist opinion before trial.
49 In this factual context, there having been no appeal from the decision to allow the amendment to the statement of claim, an application was made on 6 July 1998 for the vacation of the trial dates. This was refused by a Judge of the District Court on 10 July 1998. The learned Judge considered the nature of the issues and the evidence and was not persuaded that an adjournment of the trial was justified. That Judge considered that there was no change to the essential position of Professor Hollingworth and that Mr Hardisty favoured the appellant. While it may be contended that Mr Hardisty's opinion may have varied, if he had again examined the appellant, as to which there was then no evidence and that remains the position on this appeal, it must be kept in mind that the issue was whether pre-existing conditions caused or contributed to the condition of the appellant after the swimming pool incident. Mr Hardisty had formed and expressed a clear view in favour of the appellant in that respect nearer the time of the swimming pool incident. There was no demonstrated basis why that opinion should have been expected to change or to have been strengthened by a current examination at about the time of trial.
50 On 22 July 1998, when the trial commenced, the learned trial Judge again refused an adjournment. He saw that there had been no material change since 10 July and was not persuaded that the interests of justice required an adjournment. Both Mr Hardisty and Professor Hollingworth were available to be called at the trial and we are told that the appellant's general practitioners were available.
51 An adjournment having been refused by the learned trial Judge, counsel for the appellant announced that his instructions were not to call
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- evidence. That was the course followed. Necessarily, the appellant's claim was dismissed.
52 It is sometimes a difficult issue to determine whether an adjournment is necessary to enable a party to have a proper opportunity to present its case. In the present circumstances, while the opinion of the Professor had strengthened against the appellant, nevertheless, the general tenure of his views had been long known to the appellant and her advisers. They had determined to go to trial without attempting to secure specialist medical evidence to support the appellant's case in an area of obvious difficulty. The views expressed by the Professor in the 10 June 1998 opinion can hardly be said to have introduced a novel issue of substance or to have changed fundamentally the issues confronting the appellant's case.
53 Further, and most significantly, the opinion of Mr Hardisty provided in this respect, for the first time, clear support for the appellant's case on this issue. On balance it may fairly be said that after 17 June 1998 the appellant's case on this issue was in a stronger position than it had been until then.
54 The amendment to the pleading did not introduce novelty; it gave further point to an issue or issues that were alive on the original pleadings.
55 In these circumstances, it has not been shown that an adjournment was necessary to give the appellant a fair opportunity to present her case or to prepare to counter the defence case. An adjournment may or may not have led to some strengthening of her case, as to which there was, and even now there is, no evidence, but I am unable to conclude that the learned trial Judge should have been persuaded that an adjournment was necessary in the interests of justice.
56 It was the decision of the appellant and her advisers not to seek to make the most of the evidence she had available to her, including that of Mr Hardisty. In my view, if it was considered by her advisers on 22-23 July 1998 that the appellant's case was not strong enough to justify proceeding to trial, that was not due to the amendment to the defence or to the need for the first time after 17 June 1998 to secure evidence to counter Professor Hollingworth.
57 The other grounds of appeal, while directed to particular consequences of the decision the subject of the first ground, do not appear to me to take the matter further in any material way. I agree, with respect, with White J that they do not warrant this appeal being allowed.
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