Michael v Withers
[2007] WADC 208
•26 NOVEMBER 2007
MICHAEL -v- WITHERS [2007] WADC 208
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 208 | |
| Case No: | CIV:1644/2003 | 19 OCTOBER 2007 | |
| Coram: | WISBEY DCJ | 25/11/07 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Order of Deputy Registrar confirmed | ||
| PDF Version |
| Parties: | CLEM ANTHONY MICHAEL KENNETH PETER WITHERS |
Catchwords: | Practice and procedure Application to amend statement of claim Amendment inconsistent with general plea and particulars of negligence |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KENNETH PETER WITHERS
Defendant
Catchwords:
Practice and procedure - Application to amend statement of claim - Amendment inconsistent with general plea and particulars of negligence
Legislation:
Nil
Result:
Order of Deputy Registrar confirmed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr J R B Ley
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 WISBEY DCJ: The plaintiff, a professional footballer, sustained a tear to the posterior cruciate ligament of his left knee on 2 April 2000 and subsequently received advice and treatment from the defendant, a sports medicine practitioner.
2 On 28 July 2003 he issued the writ herein alleging negligence against the defendant in that in the course of caring for and treating the plaintiff he:
"administered excessive local anaesthesia and hydrocortisone injections to the Plaintiff's left knee in order to allow the plaintiff to continue to train and play Australian Football for the Fremantle Football Club which caused the plaintiff to suffer a permanent loss of function to the left knee and continuing pain and disability".
3 That general allegation in par 4 was particularised by statements that the defendant administered excessive local anaesthetic and hydrocortisone injections despite the known consequences of that course of action; failed to undertake alternative conservative treatment; and failed to advise the plaintiff of the risks associated with the prescribed treatment and the continuation of football when he was suffering symptoms.
4 When I endeavoured to gain an understanding of the claim the best that plaintiff's counsel could advance, albeit reluctantly, was "he should have been treated differently and he should not have been given those injections". That is also stated in the plaintiff's outline of submissions. He was not prepared to acknowledge that the general allegation above is inconsistent with that statement, and to address the fact that the particulars contain several references to a failure to warn or advise, which does not seem to be a "major plank" of the plaintiff's claim.
5 After what appears to have been fairly protracted and unproductive interlocutory dialogue between the parties the plaintiff made application for leave to amend the statement of claim in terms of a minute dated 2 March 2007.
6 The amendment sought to insert in par 4 after the word disability, and before the particulars of the defendant's negligence, the following:
(Page 4)
- "In that
(a) the administration of local anaesthesia injections to the plaintiff's knee joint rendered the defence mechanism of pain in the knee joint ineffective, thereby;
(i) allowing the plaintiff to continue to train for and participate in AFL football matches without experiencing pain or other symptoms of the injury; and
(ii) causing further injury to the plaintiff's knee joint in that it prevented the posterior cruciate ligament of the plaintiff's knee from repairing and prolonged the plaintiff's recovery from the injury; and
(iii) masking any symptoms (such as pain) which would have alerted the plaintiff to additional damage being sustained to his left knee in the course of his continuing to train and participate in AFL football matches, and prevented the plaintiff from taking precautionary measures against such damage.
(b) the administration of injections of hydrocortisone to the plaintiff's left knee:
(i) led to the development of accelerated degenerative changes within the plaintiff's left knee joint and damage to the bone and articular cartilage surrounding the plaintiff's left knee joint; and
(ii) masked any symptoms (such as swelling and inflammation) which would have alerted the plaintiff to additional damage being sustained to his left knee in the course of his continuing to train and participate in AFL football matches, and prevented the plaintiff from taking precautionary measures against such damage."
(Page 5)
8 The application to amend came before the Deputy Registrar on 26 April 2007 almost four years after the issue of the writ, and he refused leave insofar as it related to par 4. Relevantly that meant that the plaintiff only had leave to add some additional particulars of pain and disability. The plaintiff appeals against that order pursuant to r 15 of the District Court Rules 2005, the appeal being a re-hearing of the application.
9 Although plaintiff's counsel was unwilling to provide the court with much assistance during the hearing, it appears that the plaintiff desires to allege at trial that:
(a) he should not have been injected with local anaesthetic; and
(b) he should not have been injected with hydrocortisone as it "led to the development of accelerated degenerative changes". It is not clear to me whether that is meant to indicate that degenerative changes were caused by the injections, or whether such changes were present and simply accelerated.
10 The proposed amendments to par 4 are inconsistent with the general allegation already pleaded and the particulars of negligence provided, a fact which plaintiff's counsel is unwilling to address, being prepared apparently to "stand or fall on what the claim is".
11 Proposed amendment 4(a)(ii) seeks to allege that the injection of local anaesthetic allowed the plaintiff to continue to engage in training and caused further injury to the knee joint. It is not possible to determine from the pleading what the "further injury" is, although it seems that it may be a reference to a continuing deterioration of the posterior cruciate ligament.
12 The proposed amendments, if introduced in the absence of amendments to the claim as presently presented, would further confuse rather than elucidate the nature of the plaintiff's claim. In these circumstances Deputy Registrar was right in refusing to allow the amendment and I confirm his order.
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