Meas v Tipping

[2022] ACTSC 302

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Meas v Tipping

Citation:

[2022] ACTSC 302

Hearing Date:

4 November 2022

DecisionDate:

4 November 2022

Before:

McCallum CJ

Decision:

The application is dismissed with costs

Catchwords:

PROCEDURE — SUPREME COURT PROCEDURE — Application to file amended defence — Matter listed for hearing shortly — Where scope of proposed amendment is small — Where proposed amendment not prompted by late service of evidence — Whether proposed amendment puts plaintiff on notice as to the case he would have to meet — Whether there is prejudice to plaintiff that cannot be compensated for in costs

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Parties:

Daniel Veasna Meas by his litigation guardian Christine Anne Adcock (Plaintiff)

Michael John Tipping (Defendant)

Representation:

Counsel

I Bradfield (Plaintiff)

D Crowe (Defendant)

Solicitors

Elringtons Lawyers (Plaintiff)

Carroll & O’Dea Lawyers (Defendant)

File Number:

SC 260 of 2015

McCALLUM CJ:

1․These are proceedings for damages for personal injury sustained by the plaintiff when he was a baby aged 10 months in a motor vehicle accident which resulted in the death of his pregnant mother and then unborn sister.  The proceedings have the distinction of being the oldest in this Court, not due to any default on the part of either party but simply because it has been necessary for the parties to await a time when the plaintiff’s injuries settled.

2․The proceedings are listed for hearing with an estimate of two weeks as a special fixture commencing on 21 November 2022.  That hearing date was allocated at a listing hearing on 8 April 2022.  The defendant, by application in proceeding filed 10 October 2022, now seeks leave to file an amended defence.  The amendment is small.  It is simply sought to add an allegation that the plaintiff's damages should be reduced proportionally to his failure to mitigate his loss.  The only particulars provided of that allegation are:

(a) Failure to take any or any adequate steps to enrol in post-school training or education programs for which the plaintiff has capacity;

(b) Failure to take any or any adequate steps to obtain employment for which the plaintiff has capacity.

3․The only explanation for bringing forward the proposed amendment so late is that, until the end of last year, the plaintiff was attending school.  He completed Year 12 last year and has, since that time, been mostly unemployed save for a short period of work in a cafe, half of which was voluntary and half of which was paid.

4․In those circumstances, the defendant frankly accepts that there is no specific explanation for the proposed amendment such as a late development emerging from new medical evidence or new particulars provided by the plaintiff or the like.  Instead, it is simply contended that, because of the timing of the plaintiff’s completion of school by reference to the timing of the hearing, this is an appropriate time to bring the forward the amendment.

5․The plaintiff opposes the application.  An affidavit sworn by his solicitor to support the opposition to the application recites in careful detail the number of occasions on which the defendant, by court process or otherwise, has confirmed his readiness for hearing.

6․Taking a potted history of that chronology, that was confirmed at the listing hearing on 8 April 2022 and in the questionnaires filed in association with that hearing; in response to a letter sent by my associate at my request on 2 August 2022 and the acknowledgement of that letter; and otherwise in the failure of the defendant at any point to bring the Court's attention to any complication of the kind referred to in that email.

7․The parties accept that the proposed amendment is of limited scope in this sense.  The plaintiff's case is that he has suffered a complete loss of capacity for any employment or virtually any employment.  A full claim for future economic loss is made on that basis.  It is common ground that, to the extent that the plaintiff fails to establish that his loss of capacity is complete or, to put the matter another way, to the extent that the evidence establishes some capacity for future employment, that is open on the current pleadings.  The scope of the amendment is accordingly small in that it would simply seek to capture the period from the completion of schooling until the date on which the damages are determined. 

8․Against that are the following prejudices to the plaintiff.  First, the form of the proposed pleading does not really go far enough to put the plaintiff on notice of precisely the case he will have to meet by way of defence of failure to mitigate. 

9․Secondly, in accordance with the principles stated by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, it is accepted that some late amendments cannot simply be compensated for in costs. This plaintiff has spent literally his entire life, save for the first 10 months of it, anticipating this litigation and finally has a special fixture when his claim will be determined. To throw in what might be termed a “curveball” at this point has a prejudice which, in my assessment, speaks for itself.

10․Mr Bradfield, who appears for the plaintiff, made the additional point that the proposed amendment could have been pleaded conditionally at an earlier point. 

11․In all the circumstances, I am not satisfied that it would be fair to grant leave to make the amendment at this late stage of the proceedings. 

12․Order:

1.        The application is dismissed with costs.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date: