Kitaura v Minister for Health
[2006] WADC 21
•24 FEBRUARY 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KITAURA & ORS -v- MINISTER FOR HEALTH [2006] WADC 21
CORAM: CRISFORD DCJ
HEARD: 27 JANUARY 2006
DELIVERED : 24 FEBRUARY 2006
FILE NO/S: CIV 2472 of 1999
BETWEEN: TRACY KITAURA
First Plaintiff
AARON JOHN KITAURA
MICHAEL KEVIN KITAURA
NATASHA TOSHUA KITAURA
JOSHUA JAMES KITAURA
Appellants (Second Plaintiffs)AND
MINISTER FOR HEALTH
Respondent (Defendant)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :REGISTRAR KINGSLEY
Citation :[2005] WADC 204
Catchwords:
Appeal - Practice - Application to amend statement of claim - New cause of action
Legislation:
Fatal Accidents Act 1959
Limitation Act 1935
Rules of the Supreme Court 1971, O 20 r 2(2), r 2(3), O 21 r 5(2), r 5(5)
Result:
Appeal allowed
Representation:
Counsel:
First Plaintiff : No appearance
Appellants (Second Plaintiffs) : Mr B L Nugawela
Respondent (Defendant) : Ms F B Seaward
Solicitors:
First Plaintiff : Not applicable
Appellants (Second Plaintiffs) : CLP Lawyers
Respondent (Defendant) : State Solicitor
Case(s) referred to in judgment(s):
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Jeffrey v Witherow & Anor [2006] WASCA 4
Morgan v Banning (1999) 20 WAR 474
Renowden v McMullin (1970) 123 CLR 584
Tristram v Hyundai Distributors Australia Pty Ltd [2005] WASCA 168
Case(s) also cited:
Amatek Ltd v Botman (1995) 127 FLR 160
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dallas Development Corporation Pty Ltd v Western Australian Land Authority, unreported; FCt SCt of WA; Library No 980425; 7 May 1998
Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Of Workers - Western Australian Branch & Ors [2000] WASC 66
Helmy & Anor v SBF Engineering Pty Ltd & Anor, unreported; SCt of WA; Library No 980730; 14 December 1998
Re Monger; Ex parte Cross [2004] WASCA 176
State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Summit Chemicals Pty Ltd v Vetrotex Espana SA [2004] WASCA 109
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
CRISFORD DCJ: Dennis Joseph Kitaura died on 26 November 1997 whilst he was being transported from Derby Regional Hospital to a hospital in Perth for medical treatment. The deceased was the husband of the first plaintiff and the father of the second plaintiffs.
In October 1998 and January 1999 a coronial inquest was conducted into the circumstances of the death. The findings of the coroner were delivered on 3 February 1999.
On 7 October 1998 the Minister for Health was notified pursuant to s 47A of the Limitation Act 1935 ("Limitation Act") that investigations were being conducted into the possibility of commencing proceedings against the Minister for Health ("Minister") "pursuant to the Fatal Accidents Act and/or under the common law". The Crown Solicitor's office wrote to solicitors then acting for the plaintiffs on 21 December 1998 advising that provided a writ was issued before 26 June 1999 the Minister would not object to the writ being issued out of time.
On 25 June 1999 a writ of summons was issued. The claim was against the Minister as first defendant and the Royal Flying Doctor as second defendant. The action against the second defendant has since been discontinued. The endorsement on the writ reads:
"The First and Second Plaintiffs' action is for damages pursuant to the Common Law for Negligence and pursuant to the Fatal Accidents Act for damages arising from the death of Dennis Joseph Kitaura on 26 November 1997 at Carnarvon airport, such death occurring by reason of negligent acts and omissions of the First and Second defendants."
The validity of the writ was extended for a period of 30 days from 10 November 2003.
The plaintiffs filed a statement of claim on 14 July 2004. In it the first plaintiff pleads that as the widow of the deceased she is a person for whose benefit an action could be taken pursuant to the Fatal Accidents Act 1959. She claims pecuniary loss as a result of the loss of financial support of her husband. She also claims damages for nervous shock. The second plaintiffs claim is made on the basis that each had a reasonable expectation of receiving pecuniary benefits from the deceased during the remainder of his or her life.
The plaintiffs sought leave on 8 September 2005 to amend the statement of claim in the following manner:
"Loss and damage
15.Due to the death of the deceased and Dr Leslie and the first defendant's breach of duty pleaded above, the first plaintiff has suffered injury in that she suffered nervous shock including development of a psychiatric condition as a consequence of such death.
Particulars of nervous shock
These will be provided in full prior to the pre‑trial conference.
16.Due to the death of the deceased and Dr Leslie and the first defendant's breach of duty pleaded above, the second plaintiffs have suffered injury in that they have developed psychiatric conditions as a consequence of such death.
17.Due to the death of the deceased and Dr Leslie and the first defendant's breach of duty pleaded above, the first plaintiff and the second plaintiffs, Aaron John Kitaura, Natasha Toshua Kitaura and Joshua James Kitaura will in future incur medical and travel expenses.
Particulars of treatment and travel
These will be provided prior to the pre‑trial conference."
The first plaintiff's application to amend in par 15 of the statement of claim was not opposed by the defendant. It simply opposes the application to amend in relation to the second plaintiffs.
After hearing argument on 11 October 2005 a Registrar of the District Court refused the second plaintiffs' application. The second plaintiffs now appeal that decision.
The appeal before the Court is in the nature of a hearing de novo. A plaintiff does not have to demonstrate some error in the exercise of discretion or some error of judgment on a matter of fact or law. The matter is simply argued afresh as if for the first time: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
The respondent opposes the appellants' application to amend the statement of claim by inserting pars 16 and 17 for the following reasons:
"2.The Respondent opposes the Appellants' application to amend the Statement of Claim by inserting paragraphs 16 and 17 for the following reasons:
(a)The Appellants have not complied with section 47A of the Limitation Act 1935 in relation to the new cause of action pleaded by the Appellants;
(b)The amendments seek to introduce a new cause of action at a point in time when that cause of action is statute barred;
(c)In the alternative, the Appellants' cause of action for damages for 'psychiatric conditions' has been abandoned;
(d)In the alternative, leave to make the proposed amendments should not be granted in accordance within the principles of positive case flow management, as the Respondent is prejudiced by the proposed late amendments;
(e)In any event, the proposed amendments are embarrassing."
Order 21 of the Rules of the Supreme Court 1971 ("the Supreme Court Rules")
Rule 5 of O 21 of the Supreme Court Rules states that the court has discretion to grant leave to any party to amend pleadings at any stage of the proceedings. This discretion must be exercised in light of the principles and objects of case flow management. Rule 5(5) of O 21 of the Supreme Court Rules sets out that the court may allow an amendment notwithstanding the effect of the amendment is to introduce a new cause of action "if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action".
In Morgan v Banning (1999) 20 WAR 474 the Supreme Court considered the issue of amendment to pleadings where a limitation defence had been pleaded. The court was of the view that where amendments are sought to be made after the expiry of the relevant limitation period then if the terms of the writ are wide enough to include the proposed amendments as they particularise, clarify or expand a cause of action already instituted no question of limitation arises.
Section 47A of the Limitation Act
The respondent's position is that leave should not be granted to amend as the second plaintiffs have failed to comply with s 47A of the Limitation Act.
It says that notice in writing providing reasonable information of the circumstances upon which the proposed action would be based was not given to the defendant by the second plaintiffs as soon as practicable after the cause of action arose. It says further that the proposed amendments to the statement of claim are outside the scope of any consent given by the defendant to the second plaintiffs to commence proceedings because that consent did not encompass a claim for damages for a psychiatric condition.
Before the Court are copies of correspondence exchanged between the Aboriginal Legal Service of WA (Inc) as the plaintiffs' then solicitors and the Minister for Health and Crown Solicitor's Office to the effect that the plaintiffs intended to bring proceedings both at common law and under the Fatal Accidents Act. The first letter from the plaintiffs' solicitors was dated 7 October 1998. There was no detail provided regarding the nature and extent of the damages sought. No detail was requested.
Consent was provided to the family of the deceased to issue proceedings before 26 June 1999. Proceedings were duly issued.
The statement of claim filed 14 June 2004 includes a plea that the first plaintiff suffered nervous shock (par 15). The minute of proposed amended statement of claim seeks to add a plea that the first plaintiff suffered psychiatric injury. This amendment is not opposed by the defendant.
On one view, the defendant's failure to object to the first plaintiff's amendment can be seen as an acceptance that the consent is wide enough to encompass a claim for "development of a psychiatric condition".
I am of the view that the proposed amendments by the second plaintiffs to the statement of claim are not outside of the scope of the general consent given by the respondent to the first plaintiff and the appellants to commence proceedings after the expiration of one year from the date on which the cause of action accrued, in accordance with s 47A(2) of the Limitation Act.
Limitation period and abandonment
The respondent contends that the amendments are outside the scope of the writ and are now statute barred. Alternatively, its position is that the statement of claim filed on 14 July 2004 has narrowed the ambit of the indorsement of claim. It has superseded the writ and any claim as now sought has been abandoned.
Order 20 r 2(2) and (3) of the Supreme Court Rules provide:
"(2)A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
(3)Subject to paragraph (2) a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement."
This rule requires the statement of claim to have a relevant connection with the cause or causes of action in the indorsement.
It is necessary to consider whether the cause of action the subject of the proposed amendment is within the scope of the indorsement. This was considered in Tristram v Hyundai Distributors Australia Pty Ltd [2005] WASCA 168. The cause of action in the statement of claim will be outside the scope of the writ unless it is:
(a)mentioned in the writ; or
(b)arises from facts which are the same as, or include or form part of, the facts giving rise to a cause of action so mentioned.
McLure J stated that:
"It is unnecessary to decide whether the term "cause of action" is used in the sense of the factual situation which will entitle a person to approach the Court for relief or, alternatively, the various categories of factual situations which entitle a person to a remedy (such as, for example, contract, tort, restitution): see Morgan v Banning (1999) 20 WAR 474 at 484."
As Wheeler J in Morgan v Banning (supra) stated at 486:
The position now as I understand it is that the rule in Weldon v Neal applies to a cause of action which is truly new, and may not be abrogated without statutory authority. At least in a clear case, the court should refuse to allow the addition of a new cause of action in that sense. There may of course be circumstances where it is not clear how the amendments relate to the original cause of action and in such a case, it may be preferable that the issue be left for trial, just as the issue may be left for trial where it is not clear from the pleadings whether an action is time barred. If there is no new cause of action in that sense, but is rather a re-labelling, addition, modification or clarification of an existing cause of action raised in the indorsement, O21 r5(5) is applicable. When the discretion is exercised in that case, it is of course to be remembered that the effect of a refusal to permit amendment may be that a plaintiff will be unable to bring an issue before the court at all, and questions of justice to the plaintiff, delay, reasons for delay, prejudice to the defendant or other persons, possible abuse of process, among others, will be relevant."
The indorsement of claim signals the intention of the first and second plaintiffs to take action for damages pursuant to the common law for negligence and pursuant to the Fatal Accidents Act for damages arising from the death of Dennis Joseph Kitaura.
The first named cause of action refers to a duty allegedly owed by the respondent to the second plaintiffs. The latter refers to a statutory duty owed by the respondent to the deceased.
The cause of action referred to in the indorsement of claim on the writ, as far as it is relevant here, is for negligence. The second plaintiffs seek to expand their claim for relief arising from that cause of action advanced in negligence to include psychiatric injury. They refer to a new head of damage rather than a new cause of action.
I am of the view that the indorsement of claim on the writ should not be construed in such a narrow fashion to now preclude the second plaintiffs extending their claim to include damages for psychiatric injury.
Accordingly, the claims of Aaron John Kitaura and Michael Kevin Kitaura do not fall outside the scope of the general indorsement in the writ and are not statute barred.
The respondent claims that if that such a claim for relief is possible as a result of the terms of the writ of summons the fact that such a claim was not advanced in the original statement of claim means that such claim has been abandoned and cannot now be introduced: Renowden v McMullin (1970) 123 CLR 584.
The scope and effect of O 20 r 2(2) and (3) was discussed in Jeffrey v Witherow & Anor [2006] WASCA 4. McLure J considered the rule in conjunction with the concept of abandonment.
In this case I have formed the view that the amendments proposed fall within the scope of the indorsement. It follows that, in accordance with O 20 r 2(2) and r 2(3) the relevant connection has been established and the cause of action and relief sought have not been abandoned.
However, if I am required to consider the application of O 21 r 5(2) and (5) I do so in the light of the remarks previously cited of Wheeler J in Morgan v Banning (supra) at 486.
Order 21 r 5(5) would be applicable in that there is no new cause of action sought to be included "rather a re‑labelling, addition, modification or clarification of an existing cause of action raised in the indorsement".
Principles of case flow management
I now consider whether there is any reason I should exercise my discretion and refuse the amendment sought by the appellants.
This action has not yet been listed for trial. While some delay is anticipated there is nothing before me to suggest that any further delay will cause substantial prejudice to the respondent. Reason for the failure to particularise the relief sought by the second plaintiffs at an earlier stage has been canvassed in the affidavit material filed by the second plaintiffs (affidavits of Ms T J Laslett sworn 4 November 2003, 8 September 2005 and 10 October 2005). It is clear that the failure to notify the respondent of any psychiatric condition sustained by each of the second plaintiffs following the death of the deceased was not due to a failure on the part of any of the second plaintiffs.
The delay in psychiatric assessment of the second plaintiffs will, undoubtedly, cause some difficulties for the respondent. However, it also poses problems for the second plaintiffs themselves. Among other things, issues of proximal causation will, no doubt loom large, and both parties will face a degree of prejudice.
The respondent appears to accept that if the second plaintiffs had raised the issue of psychiatric injury in the statement of claim filed 14 July 2004 no objection would have been taken. That would have been the first occasion it was raised. I do not find that delay of such magnitude as to cause the exercise of my discretion against the amendment.
The objects of positive case flow management cannot be underestimated. However, given this matter has not been listed for trial, and now appears to be moving forward, there is nothing to suggest that the attainment of these objectives will be unduly thwarted.
Proposed amendments embarrassing
The pleading as proposed is poorly expressed. Not only is it lacking in detail and in particulars it lacks clarity. The respondent's criticisms are well founded. Whilst I am of the view the substance of the amendment should be allowed I do consider its expression needs some reworking.
For these reasons I consider that the appeal from the order of the Registrar of 31 October 2005 refusing leave to amend the statement of claim be allowed. The orders I would make are that:
1.The plaintiffs do file and serve an amended statement of claim within 14 days.
2.The defendant do file and serve an amended defence within 14 days from the service upon it of the amended statement of claim.
3.The defendant (respondent) pay the plaintiffs' (appellants) cost of the appeal.
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