| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KITAURA & ORS -v- MINISTER FOR HEALTH [2005] WADC 204 CORAM : REGISTRAR KINGSLEY HEARD : 11 OCTOBER 2005 DELIVERED : 31 OCTOBER 2005 FILE NO/S : CIV 2472 of 1999 BETWEEN : TRACY KITAURA First Plaintiff
AARON JOHN KITAURA
MICHAEL KEVIN KITAURA
NATASHA TOSHUA KITAURA
JOSHUA JAMES KITAURA
Second Plaintiffs
AND
MINISTER FOR HEALTH
Defendant
Catchwords: Practice - Application to amend Statement of claim - Amendment raising new cause of action
Legislation: Fatal Accidents Act 1959
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Limitation Act 1935
Rules of the Supreme Court 1971
Result: Application refused Representation:
Counsel:
First Plaintiff : Ms T J Laslett
Second Plaintiffs : Ms T J Laslett
Defendant : Ms F B Seaward
Solicitors:
First Plaintiff : CLP Lawyers
Second Plaintiffs : CLP Lawyers
Defendant : State Solicitor
Case(s) referred to in judgment(s):
Morgan v Banning (1999) 20 WAR 474
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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch [2000] WASC 66
Renowden v McMullin (1970) 123 CLR 584
State of Queensland & Anor v JL 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
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1 REGISTRAR KINGSLEY: The first plaintiff's husband died in November 1997 whilst being transported from Port Hedland to Perth. The first plaintiff's claim concerns the medical advice and treatment which the deceased was given at the Derby Regional Hospital between 23 and 25 November 1997.
2 A coronial inquest was conducted into the circumstances of the death of the deceased in October 1998 and January 1999. 3 In October 1998, the then solicitor for the first plaintiff wrote to the Minister for Health advising that pursuant to s 47A of the Limitation Act1935 the solicitors were investigating the possibility of commencing proceedings against the Minister pursuant to the Fatal Accidents Act 1959 and/or under the common law. In October 1998, the Minister wrote to the first plaintiffs' then solicitor noting that the solicitor was currently investigating the possibility of commencing proceedings pursuant to the Fatal Accidents Act and/or the common law. On 6 November 1998, the plaintiffs' the solicitor wrote to the Crown Solicitor's Office enquiring whether the Crown Solicitor's Office could provide a written undertaking that they would consent to the commencement of proceedings against the State outside the limitation period. By letter dated 21 December 1998 the Crown Solicitor's Office wrote to the plaintiffs' then solicitor advising that provided a writ was issued before 26 June 1999 the Minister would not object to the writ being issued out of time. 4 A writ was issued on 25 June 1999 with an endorsed claim against the Minister for Health as first defendant and the Royal Flying Doctor as second defendant. The endorsement 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". 5 The action against the second defendant has since been discontinued. 6 The plaintiffs sought a renewal of the writ in November 2003 and the validity of the writ was extended for a period of 30 days from 10 November 2003. 7 On 14 July 1999, a statement of claim was filed by the plaintiffs. In that statement of claim, the first plaintiff pleads that she is the widow of
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the deceased, is a person for whose benefit an action could be taken pursuant to the Fatal Accidents Act and brings the action, on her own behalf for damages for nervous shock and, on her own behalf and on behalf of the second plaintiffs, on the basis that each had a reasonable expectation of receiving pecuniary benefits from the deceased during the remainder of his life. 8 The plaintiffs now bring an application seeking leave to amend the statement of claim to include pleas that the second plaintiffs have suffered injury in that they have developed psychiatric conditions as a consequence of the death of the deceased. 9 The defendant does not oppose the first plaintiff's application to amend par 15 of the statement of claim. However, the defendant opposes the application to amend the statement of claim in relation to the second plaintiffs. The defendant submits: "1. The plaintiffs have not complied with s 47A of the Limitation Act in relation to the new cause of action pleaded by the second plaintiffs; 2. The amendment sought to introduce a new cause of action at a point in time when that cause of action is statute barred; 3. In the alternative, the second plaintiffs' cause of action for damages for psychiatric conditions has been abandoned; 4. Leave to make the proposed amendments ought not to be granted in accordance with the principles of positive case flow management; 5. In any event, the proposed amendments are embarrassing." 10 It is clear pursuant to O 21 of the Rules of the Supreme Court that the court has the discretion to grant leave to any party to amend their pleadings at any stage of the proceedings. However, the discretion must be exercised in light of the principles and objects of the case flow management. Pursuant to O 21 r 5(5) of the Rules of the Supreme Court, the court may allow an amendment notwithstanding that the effect of the amendment introduces a new cause of action. However, the new cause of action must arise out of the same facts, or substantially the same facts, as
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the cause of action in respect of which relief has already been claimed in the action. 11 Morgan v Banning (1999) 20 WAR 474 (747) is authority for the proposition that O 21 r 5(5) of the Rules of the Supreme Court does not permit an amendment to the pleadings which adds a new cause of action outside the relevant limitation period, unless that cause of action falls within the scope of the general endorsement to the writ.
Limitation Act 12 The defendant's counsel submits that leave should not be granted to amend, as the second plaintiffs have failed to comply with s 47A of the Limitation Act. Counsel submits the second plaintiffs did not give to the defendant, as soon as practicable after the alleged cause of action, notice in writing providing reasonable information of the circumstances upon which the proposed action would be based. Further, the proposed amendments to the statement of claim are now outside the scope of consent given by the defendant to the plaintiffs to commence proceedings because that consent did not encompass a claim for damages for psychiatric conditions. 13 It is evident in the correspondence passing between the plaintiffs' then solicitors and the Minister for Health and Crown Solicitor's office that the plaintiffs intended to bring proceedings, both at common law and under the Fatal Accidents Act. The correspondence does not include any detail regarding the nature and extent of the damages sought. Consent was provided to the family of the deceased to issue proceedings before 26 June 1999. 14 Paragraph 15 of the statement of claim includes a plea that the first plaintiff suffered nervous shock. The minute of proposed amended statement of claim seeks to add a plea that the first plaintiff suffered psychiatric injury. 15 In my opinion, there is no basis now to interpret the consent that the widow of the deceased could bring a claim for damages for a psychiatric condition and the widow and the children could bring an action to claim damages for loss of financial dependency, but that a claim for psychiatric injury on the part of the children was excluded from that consent. Accordingly, I am of the opinion that there is no basis under s 47A of the Limitation Act to refuse my discretion.
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Limitation period and abandonment
16 The endorsement of the writ which is intended to be a short and very general statement of the plaintiffs' claim provides for an action for damages pursuant to common law for negligence and pursuant to the Fatal Accidents Act. In pleading the action in the statement of claim, the second plaintiffs have pleaded only an action under the Fatal Accidents Act. The defendant asserts that the second plaintiffs have abandoned their claim for damages for psychiatric injury and that O 21 r 5(5) of the Rules of the Supreme Court does not assist the second plaintiffs because this is a new cause of action not arising out of the same facts or substantially the same facts as the cause of action first pleaded. 17 In the statement of claim filed July 1999, there are no facts which provide a basis for the second plaintiffs' present amendments. The statement of claim of 14 July 1999 relates to the fact that the second plaintiffs have lost the economic benefits of the deceased. The second plaintiffs' claim is couched in a way to meet the requirements of the Fatal Accidents Act. A claim framed under the Fatal Accidents Act is one of narrow compass and has as its focus the economic dependency of the second plaintiffs. 18 In the proposed amendments, the second plaintiffs now seek to plead a psychiatric condition. In my opinion, this is a new cause of action. That cause of action does not arise out of, nor substantially arise out of, the facts that have been pleaded in respect of which relief has already been claimed. Accordingly, the claims of Aaron John Kitaura and Michael Kevin Kitaura fall outside the scope of the general endorsement and are now statute barred. 19 With the other two plaintiffs, I am of the opinion that those plaintiffs' cause of action has been abandoned by them. Whilst I am of the opinion that, had the second plaintiffs brought a claim for psychiatric conditions at the commencement of the action, that claim would not have been statute barred, the second plaintiffs had in the 14 July 1999 writ abandoned the claim in negligence. 20 The endorsement of the writ clearly contemplated a claim for damages at common law and a fatal accidents claim. In issue in the statement of claim, the second plaintiffs make no reference to, and hence abandoned, their common law claims. I am of the opinion that the second plaintiffs have abandoned the common law part of their claim.
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Prejudice
21 In any event, in my opinion, it would not be just to allow this amendment. The cause of action arose in November 1997 and the writ was served in November 2003. The defendant's counsel submits the defendant has lost the opportunity to have the second plaintiffs assessed by a psychiatrist closer to the time the symptoms of the alleged psychiatric injury first manifested. The defendant's counsel submits that there may well have been significant life events in the intervening period which would make it extremely difficult to test the causative role of the death of the deceased on the present psychiatric conditions. Further, the defendant has lost the opportunity to determine whether the second plaintiffs could have responded to early intervention. 22 Whilst there is prejudice to the second plaintiffs resulting from refusal of this application, there is a corresponding prejudice on the part of the defendant. For all of these reasons, I am of the opinion that the second plaintiffs ought not be permitted to plead the new cause of action raised in pars 16 and 17 of the minute of proposed amended statement of claim. 23 I will hear counsel on the terms of order and as to costs.
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