Raad v Cossey (re application to amend statement of claim)

[2022] NSWDC 58

District Court

New South Wales

Medium Neutral Citation:

Raad v Cossey (re application to amend statement of claim) [2022] NSWDC 58

Hearing dates:

11 February 2022

Date of orders:

15 March 2022

Decision date:

15 March 2022

Jurisdiction:

Civil

Before:

Cowdroy AO QC ADCJ

Decision:

(1) The plaintiff’s notice of motion filed 7 January 2022 is dismissed.

(2) The plaintiff to pay the defendant’s costs of and incidental to the notice of motion.

Catchwords:

PRACTICE AND PROCEDURE – pleadings – amendment – application amend statement of claim after closure of evidence and of submissions – amendment if allowed require further evidence including expert evidence – application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 58 and 64

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Cropper v Smith (1884) 26 Ch D 700

Dennis v Australian Broadcasting Corporation [2008] NSWCA 37

Ketteman v Hansel Properties Ltd [1987] AC 189

Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666

MJH Chemicals Pty Ltd (formerly Bracton Chemical Co Pty Ltd) v State Rail Authority of New South Wales (Supreme Court of New South Wales – Equity Division, Bryson J, 19 April 1996)

State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Urban Transport Authority of New South Wales v Nwieser (1992) 28 NSWLR 471

Category:

Procedural rulings

Parties:

Plaintiff: Raad Raad
Defendant: Peta-Lee Cossey

Representation:

Counsel:
Plaintiff: Mr J Jobson
Defendant: Mr P Deakin QC / Mr B Wilson

Solicitors:
Plaintiff: Harrow Legal
Defendant: Hall & Wilcox

File Number(s):

2014/262109

Publication restriction:

None

Judgment

1. By notice of motion filed on 7 January 2022, and supported by an affidavit of Marcel Joukhador affirmed 6 January 2022, the plaintiff seeks leave to file an Amended Statement of Claim after judgment was reserved in December 2021.

2. The plaintiff submits that this notice of motion is restricted to an application to amend the Statement of Claim and reopening of the hearing is not required. The defendant submits that reopening will be necessary.

3. The proposed amendments seek to add to the plaintiff’s claim additional particulars of negligence alleged against the defendant. The Court sets out the existing particulars and the proposed particulars which are underlined hereunder. At the hearing of the motion on 11 February 2022, the plaintiff withdrew proposed particulars (vii), (viii) and (ix). For the sake of clarity, these particulars have been struck through:

1. Driving at an excessive speed;

2. Failure to keep the vehicle under control;

3. Failure to properly steer the vehicle;

4. Failure to brake the vehicle in time;

5. Failure to keep a proper lookout and reduce the speed of the vehicle keeping in mind the terrain of the road.

6. Driving whilst overwhelmed with tiredness;

7. Failure to warn plaintiff of the dangers of the defendant driving whilst overwhelmed with tiredness;

8. Failure to warn the plaintiff that she had not slept for seven days prior to driving;

9. When stopped mid trip failed to tell the plaintiff of her state of tiredness due to lack of sleep for seven days;

10. Re-starting to drive after being overwhelmed by tiredness;

11. Masking tiredness;

12. Driving off the road in a state of tiredness and lack of alertness.

4. The affidavit in support provides the only basis for its proposed amendment as follows:

“3. As a result of leave being granted to the Defendant to file a Third Further Amended Defence and the evidence given at the hearing by the Defendant, it is now incumbent upon the Plaintiff to file an Amended Statement of Claim to address the issues which have arisen in the course of the prolonged hearing of the proceedings.”

Procedural history relevant to this application

5. All of the evidence on the issue of liability and damages concluded on the Day 5 of the hearing, namely 20 August 2018. Thereafter, on 21 August 2018, Senior Counsel for the plaintiff addressed the Court his final submissions relating to the issue of liability, and was followed on 22 August 2018 by the address by Senior Counsel for the defendant on liability. The Court did not hear submissions on damages, as the defendant on 21 August 2018 sought a review of the MAS assessment which had been conducted by Professor Ian Cameron. The plaintiff consented to the application subject to certain conditions (T 253 line 40-50), one of which was that the second assessment be carried out by Professor Cameron.

6. On 23 May 2019, the Judicial Registrar placed this matter in the Inactive List.

7. The second MAS assessment made on 29 June 2019 (Exhibit C in the proceedings), which reduced the whole person impairment of the plaintiff from 25% to 7%.

8. On 1 August 2019, the Judicial Registrar made the following order, noting the matter is to remain in the Inactive List:

1. If no MAS application pending any further adjournment to be supported by an affidavit otherwise parties to make an OLC request for hearing.

9. The matter was case managed by the Judicial Registrar between 1 August 2019 and 29 July 2020.

10. On 16 October 2020, the matter was brought make before the Court when the plaintiff sought to file a further notice of motion for further MAS assessment. The notice of motion was filed on 27 October 2020. Such application was made on the basis that the second MAS assessment had not considered an injury suffered by the plaintiff, namely his psychiatric condition resulting from the accident, and that only physical injuries had been considered in the earlier MAS assessments. Such motion was heard and, on 24 February 2021, the motion was granted. The following orders were made on 24 February 2021:

1. The medical dispute concerning the alleged psychiatric injury suffered by the plaintiff be referred pursuant to s 60(1) of the Motor Accidents Compensation Act 1999 (NSW) to the Medical Assessment Service for assessment of the whole person impairment.

2. The plaintiff and the defendant take all necessary steps to expedite the referral for assessment.

3. The defendant’s motion for a separate determination under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) be adjourned pending the result of the assessment referred to in order (1) above.

4. The cost of the plaintiff’s motion and of the defendant’s motion be costs in the cause.

5. Liberty to either party to apply for re-listing of these proceedings.

11. The subsequent procedural history throughout 2021 is set out in the principal decision published today under the heading “Subsequent proceedings”.

Principles concerning amendments

12. Section 64 of the Civil Procedure Act 2005 (NSW) makes provision for amendments to documents including pleadings as follows:

“64 Amendment of documents generally

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.”

13. In deciding whether to grant the application, the Court is required to follow the dictates of justice in s 58 of the Civil Procedure Act 2005 (NSW), which provides:

“58 Court to follow dictates of justice

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.”

14. However, the Court is required to follow the overriding purpose in s 56, which provides:

“56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)—

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person—

(a) provides financial assistance or other assistance to any party to the proceedings, and

(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.”

15. As a general rule, it has been held that a Court should allow an amendment, even at a late stage, in a trial to permit the real issues in dispute to be resolved: see Cropper v Smith (1884) 26 Ch D 700 at 710; see also State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 (“J L Holdings”). To this general principle must be added the observations of Spigelman CJ in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] where his Honour said:

“29 In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms – “must seek” – to give effect to the overriding purpose – to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” – when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act.”

16. The decision in J L Holdings has since been considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, where the joint judgment of the High Court (consisting of Gummow, Hayne, Crennan, Kiefel and Bell JJ – hereafter the “joint judgment”) affirms ultimate aim of the court is the attainment of justice (at [94]):

“[94] It will be recalled that in J L Holdings the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed "except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable". Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times. In Gale v Superdrug Stores Plc Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.” (Footnotes omitted)

17. At [98], the joint judgment went on to observe:

“[98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.”

18. At [103], the High Court observed the requirement for a party seeking the court to exercise a discretion in its favour to proffer an explanation for the delay in an application to amend pleadings:

“[103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.”

19. At [111]-[113], the High Court made the following observations:

“[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”

20. The High Court’s decision in Aon Risk Services Australia Limited v Australian National University requires the Court to examine the explanation for delay in bringing applications to amend pleadings.

Defendant’s submissions

21. The defendant opposes the amendment. The submissions of the defendant essentially raised the issue of delay in formulating such claim; the fact that the claim was not referred to at any stage of the proceedings until the final day of submissions when the court, of its own volition, required the parties to attend to clarify certain issues; the fact that the amendment could clearly not relate to the amendments in the Third Further Amended Defence and the fact that the amendments, if allowed, would require a reopening of the hearing, the calling of the defendant and an expert witness to provide evidence on issues not previously raised and raising new issues by way of defence. Further, the plaintiff’s allegation that he was not warned by the defendant of her tiredness is simply inconsistent with the clear and unchallenged evidence.

Explanation for delay in seeking amendment

22. The plaintiff did not identify, either in the affidavit in support or in submissions, an explanation for the delay in seeking the amendment. As set out earlier in paragraph 4 of this judgment, the affidavit in support filed on behalf of the plaintiff proffers the following reason for seeking an amendment to the statement of claim at this late stage as follows:

“3. As a result of leave being granted to the Defendant to file a Third Further Amended Defence and the evidence given at the hearing by the Defendant, it is now incumbent upon the Plaintiff to file an Amended Statement of Claim to address the issues which have arisen in the course of the prolonged hearing of the proceedings.”

23. It is clear from the oral submissions that the plaintiff is submitting that there is no delay in bringing his application to amend the statement of claim because the application is being made only because of the leave granted to the defendant to rely upon a Third Further Amended Defence. Such leave was granted on 7 December 2021.

24. It should be noted that the Third Further Amended Defence relates to the defence of joint illegal enterprise and conduct tainted with illegality. The defendant first sought to include these defences (albeit in a different form) prior to the commencement of the trial at an interlocutory stage. In fact, the plaintiff’s participation in an illegal act was first raised in the defendant’s original defence filed on 29 October 2014. The defendant subsequently brought a notice of motion to amend its defence to include a defence of joint illegal enterprise prior to trial. That notice of motion was dismissed by his Honour Acting Judge Kearns on 15 June 2018. However, following the giving of evidence at trial, leave was granted to the defendant to incorporate the joint illegal enterprise defence (see Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668) to which the plaintiff could not point to any prejudice (see transcript dated 7 December 2021 at T 7-8).

23. The defendant submits that the amendments to the Third Further Amended Defence result from two decisions of the New South Wales Court of Appeal decided after August 2018, which determined issues of joint illegal enterprise. Accordingly, such amendments arose out of recent developments to the law and related to legal issues as opposed to factual matters. In contrast, if the plaintiff’s motion is successful, it will have the following consequences and necessitate further evidence to be given:

1. Admissions as to breach of duty of care will have to be withdrawn since the case proceeded on the basis of the defendant’s negligence in the driving of the motor vehicle;

2. The defendant will need to be recalled. The defendant only attended following the issue of an arrest warrant and her current whereabouts is unknown;

3. The defendant expressed great anxiety and distress in giving evidence at the trial, referring to the fact that the events were “a big enough nightmare”. It would be unfair to require the defendant to provide further evidence;

4. Dr Perl’s evidence relating to the effect of drugs and of consequential sleep was admitted without objection and no cross-examination was asked of her; Further evidence would be required of Dr Perl concerning the distinction of tiredness and the effect of drugs.

26. The question of the defendant’s tiredness became apparent on 20 August 2018 after her oral evidence was given. No application was then made by the plaintiff to amend the statement of claim. Oral closing submissions on liability were then provided to the Court by Senior Counsel for the plaintiff on 21 and 22 August 2018. Senior Counsel referred to the fact that the plaintiff was tired but no application was then made to amend the pleadings.

27. The issue of tiredness affecting the defendant’s ability to control the vehicle was not raised during the hearing and was not an issue throughout the evidence and submissions. The defendant has presented her case on the basis of the pleadings before the Court. The amendment proposed would:

1. alter the plaintiff’s claim to such an extent that, if allowed, a reopening of the hearing would be essential;

2. would require recalling the defendant;

3. obtaining a new report from Dr Perl and adducing oral evidence from her.

28. The defendant referred the Court to the decision in Ketteman v Hansel Properties Ltd [1987] AC 189, as being analogous to the current application. Lord Griffiths, when considering an application by a defendant to raise a limitation bar during final submissions stated at 219G:

“If both parties on this assumption prepared their cases to contest the factual and legal issues arising in the dispute and they are litigated to the point of judgment, the issues will by this time have been fully investigated and a plea of limitation no longer serves its purpose as a procedural bar.”

29. The observations of Lord Griffiths were referred to and adopted in Aon at [100] and [101]. At 220D, Lord Griffiths stated:

“There is a difference between allowing amendments to clarify disputes and those that permit a distinct defence to be raised for the first time.”

30. The Court concurs with the submissions of the defendant that the application is made only after all the evidence and submissions have been made, solely with the objective of seeking a more favourable outcome.

31. No explanation has been offered, other than the filing of the Third Further Amended Defence for the failure of the plaintiff to raise its proposed amendments. However, it is plain that the proposed amendments relating to tiredness could not result from the filing of the Third Further Amended Defence. The proposed amendment arises from the evidence of the defendant given on 20 August 2018, and no attempt was made to amend the pleading at that stage.

32. Accordingly, to allow the amendment at this late stage of the proceedings, will not facilitate the interest of justice referred to in s 56. The Court considers that the observations of Lord Griffiths in Ketteman at 220F are apposite:

“Furthermore to allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.”

33. The submissions of the plaintiff indicate that if the amendments were allowed, it would not adduce evidence from any expert concerning the effect of tiredness and whether the tiredness was caused by lack of sleep or the result of drug consumption. The plaintiff submitted that there would be no need to recall any witnesses, even though its principal assertion would be that the accident was caused by tiredness resulting from the defendant’s consumption of “uppers”. If tiredness is put forward as the sole or main factor (and if this can be separated out from the evidence currently before the Court as to the effects of drugs on the defendant), the plaintiff would bear the onus of proving tiredness and the effects of drugs can be separated.

34. The Court considers that the plaintiff’s submissions do not take into consideration that the amendments, if allowed, would necessitate the calling of expert evidence and lay evidence. Such course would prolong the finalisation of these proceedings which commenced in 2014. A further delay in the finalisation of these proceedings will be inimical to the interest of justice. The plaintiff, having formulated his claim in accordance with the particulars upon which evidence and submissions have been made, should be bound by its conduct. The Court considers that it would be inappropriate for the plaintiff to be permitted to effectively raise a new claim.

Further considerations

35. In the event that the reasons above do not adequately explain the Court’s reasons for refusing the amendment, the Court makes the following observations on each of the proposed particulars.

The proposed amendments

36. The proposed amendments focus on the tiredness of the defendant whilst driving the vehicle. It should be noted that neither the issue of tiredness nor drugs were identified as being a separate particular of negligence, and the trial was conducted on the more general particulars set out below:

1. Driving at an excessive speed;

2. Failure to keep the vehicle under control;

3. Failure to properly steer the vehicle;

4. Failure to brake the vehicle in time;

5. Failure to keep a proper lookout and reduce the speed of the vehicle keeping in mind the terrain of the road.

37. In submissions, Senior Counsel for the plaintiff nevertheless addressed the Court extensively upon the fact that the defendant was tired when driving.

38. When the hearing of the evidence concluded on 20 August 2018, each party provided their submissions. The plaintiff’s Senior Counsel referred to the fact that the plaintiff was tired (but not that tiredness was a ground of negligence), thereby indicating that this was clearly not overlooked in the plaintiff’s case. However, there was no application to amend the claim. The issue of tiredness was directly raised, as the transcript reads:

“HIS HONOUR: You mentioned that yesterday, but there was evidence that she was "so far gone," I think is, she used the expression, or words similar to it, that she could hardly stand up, so.

GROSS: Yes, your Honour.

HIS HONOUR: But are you attributing that solely to tiredness and eliminating any affectation of drugs?

GROSS: Well, if she's so tired, your Honour, having taken a whole bunch of uppers, ie stimulants keep you awake, and all that kind of thing, and she's known to be, as it were, a regular user of these submissions, she can be expected to be able to stay alert, and so when they get in the car, she may be talking silly or she may have some other undetected matters, like pupils growing small and the like, but effectively, it's tiredness she's complaining of, and if in fact ‑ we've got two factors.  One, although she says she's tiredness, and who wouldn't be at 5.30 in the morning, you say that, but she is a young woman, she is an apparently fit woman, she's driven in before, and it's a choice of who's going to be the driver, and she decides to be the driver, and she persuades him of that, and if she's done that, and it's only in effect a 15 minute drive to a nearby part of the river or water where he can fish and she can sleep, 15 minutes like that, if you're well enough to get into the car and drive, and drive that distance, you're certainly well enough to stay awake for 15 minutes, if you're a 21 year girl who's fit and the like, and so far as he's concerned, he doesn't know she hasn't slept for a week, or she reckons she hasn't slept for a week.

But the tiredness factor is one which is effectively negatived as being anything he has to be aware of, because he doesn't know these things.  He's arrived at the hotel after midnight, and been in their company, and during that time, some drugs have been consumed, cocaine, ice, are meant to keep you awake.  And then he wants to go home, they finish that, he wants to go home.  She says that she was tired and the like, but basically, such a short distance being driven by a healthy woman, at a time when you wouldn't expect much traffic on the road anyway, it's quite reasonable for him to trust her to be able to drive.” (T 326 – 327)

39. Despite this discussion, no amendment of the pleadings was sought. Senior Counsel for the plaintiff also referred to the police interview wherein the defendant was asked questions concerning her driving ability being affected by drugs.

40. Accordingly, the issue of tiredness was considered during the hearing, as the defendant’s Senior Counsel acknowledges at T 90 (on 22 December 2021):

“DEAKIN: Could I just respond briefly, your Honour.  Tiredness has been a factual issue in the matter, we accept, and my friend has pursued it, but your Honour, the suggestion now that that should translate into a duty in the defendant to warn of the state of her alleged tiredness has never been part of this case and we object to it.  We don't mind your Honour having regard to it for the purposes of s 5D(1)(b) but one needs to separate out the scope of liability considerations that come into play under 5D(1)(b) and the scope of relevant matters that can be taken into account for the purposes of 5D(1)(b) and subs (4), that they have to be kept distinct and separate from liability issues in relation to the defendant because the whole thrust of 5D(1)(b), of course as your Honour knows from reading it, is that it assumes that negligence has been established in accordance with the pleadings.

There's no allegation of failure to warn anywhere in the pleadings, and Wallace v Kam of course deals only with the scope of 5D(1)(b); it doesn't deal with the primary issue of liability.  So as long as we keep the two separate, we don't suggest to your Honour that it can't be taken into account once negligence is proven, if it is proven, but we do submit it can't be taken into account in establishing negligence, and that's the key distinction that we make.”

41. It is necessary, however, to consider the extent to which tiredness, as such, should be permitted by way of a series of particular. and the Court will now address each particular sought to be raised.

Proposed Particular (vi) - Driving whilst overwhelmed with tiredness

42. If this particular is confined to “driving with tiredness”, then the amendment would cause no difficulty in view of the manner in which the hearing had been conducted. However, the inclusion of the word “overwhelmed” raises the assertion that tiredness was the dominant particular of negligence over the affectation of drugs. There is no evidence that tiredness, per se, is the dominant cause to the exclusion of the affectation of the defendant by drugs. The plaintiff’s case was not conducted on this basis and there was no cross-examination of Dr Perl to suggest that tiredness could be separated from affectation by drugs. Further, the plaintiff who bears the onus of proof produced no evidence to suggest that tiredness was the dominant cause of the accident rather than the affectation by drugs.

43. During the hearing, Mr Gross QC, Senior Counsel for the plaintiff, said at T 180:

“GROSS: Your Honour, that's covered in Dr Poole's [sic – Perl’s] report in the liability, and we don't dispute those findings.”

44. As demonstrated by the quotation above, Senior Counsel for the plaintiff did not dispute the findings of Dr Perl during the course of trial. However, it is obvious that the plaintiff, through his new counsel Mr Jobson, during final submissions now seeks to make submissions contrary to the unchallenged evidence by Dr Perl and contrary to the considered decision by Senior Counsel for the plaintiff to accept Dr Perl’s findings.

45. At paragraph 11 of Mr Jobson’s submissions filed on 20 January 2021, the plaintiff submits:

“11. Notwithstanding what Dr Perl said in relation to the effect on tiredness from the taking of drugs it is open to accept that the person who knew more about the effects of the drugs taken was the defendant and that she knew that the drugs taken were to keep her awake.”

46. During the hearing of this notice of motion on 11 February 2022, the Court asked the plaintiff if the plaintiff would rely on expert evidence as to the issue of tiredness, and the plaintiff provided the following response:

“HIS HONOUR: I just want to clarify a couple of things from what you've said, please, Mr Jobson. If the plaintiff bears the onus of proof in this case would your client be relying upon an expert evidence who could testify as to sleep and the effects of sleep and deprivation of sleep on driving?

JOBSON: No, your Honour.” (11 February 2022 transcript, T 110)

47. Further, at T 111-112:

“HIS HONOUR: If it's not your client's intention to rely upon an expert report on the question of tiredness, are you suggesting that the Court can simply rely upon the defendant's evidence on drugs and separate out the issues of the effect of drugs, rather than tiredness, on the cause of the accident?

JOBSON: On the basis of the evidence that the defendant gave, in court, that she was taking uppers, which were to keep her awake, and that she had seven days' sleep ‑ yes, you can. The Court would then make a determination on the evidence of the defendant as to whether or not the fact that she was sleep deprived, rather than, as my friend suggested, that she was on a downer and, therefore, the Dr Pearl approach, that caused the motor vehicle accident.

HIS HONOUR: Who's going to provide the evidence of the distinction between the two, and who's going to provide the evidence that the accident was caused solely by tiredness rather than the effect of drugs?

JOBSON: Your Honour is going to have to make a decision in relation to that based upon the evidence, I accept that, but it's open to your Honour to find that on the evidence of the plaintiff that the drugs had a positive effect of trying to keep her awake, but her lack of sleep for seven days overwhelmed, which is what I said in the submissions.” (11 February 2022 transcript, T 111 - 112)

48. These submissions invite the Court to ignore the expert evidence of Dr Perl concerning the effect of drugs on the defendant and to substitute an unsupported hypothesis that the defendant’s tiredness is the dominant cause of the accident. If the driver is affected by drugs and tiredness, the determination of whether it was effect of drugs or tiredness which was the dominant cause of the driver’s impairment must be a matter upon which neither the driver nor the Court can speculate, as this is a matter for expert evidence.

49. After the defendant gave evidence and cross-examined, the plaintiff was invited to provide any case in reply. The transcript records at T 246:

“HIS HONOUR: Mr Gross, is there any case in reply

GROSS: No, your Honour, thank you.”

50. Mr Jobson acknowledged on 11 February 2022 that there was “a failure by the plaintiff at that time”, that is on Day 5 of the hearing, in not seeking an amendment:

“HIS HONOUR: The last thing I want to ask you is, do you have any submissions which you might want to make in answer to the submissions which Mr Deakin made about the effect of Aon, namely the delay?

JOBSON: I don't say that the delay in relation to that ‑ and Aon, again, as your Honour understands ‑ Aon was used by defendants and plaintiffs all the time for both sides of the story. The delay here ‑ what is the effect of the delay? In my submission, there is not effect. There's no effect because there's no requirement that we required the defendant for further cross‑examination. There's no requirement, we say, of the plaintiff to be recalled. There's no requirement of Dr Pearl, the evidence that they relied upon to be provide a further medical expert report, and so what it simply is is it was regularised in something that was a particular part of the evidence, nothing else. It's not something that all of a sudden the plaintiff thought about at the end. It's what the defendant said in day five and the failure by ‑ and I accept there's a failure by the plaintiff at that time, but the effect of amendment to the particulars of the amendments sought would not, in my submission, have changed any of the evidence of the defendant; not one word.” (11 February 2022 transcript, T 111)

51. The claim was commenced and conducted on the basis that the driver was affected by drugs and Dr Perl’s evidence was prepared on that basis. The plaintiff was given an opportunity to put a case in reply, but Dr Perl was not required for cross-examination. The plaintiff adduced no expert evidence to support the unsupported hypothesis now proposed by this particular and in submissions. If allowed, it will require the reopening of the evidence and there would be the necessity to adduce expert evidence.

52. In MJH Chemicals Pty Ltd (formerly Bracton Chemical Co Pty Ltd) v State Rail Authority of New South Wales (Supreme Court of New South Wales – Equity Division, Bryson J, 19 April 1996), Bryson J considered a motion for further leave to amend an amended statement of claim following the decision being reserved. Whilst the decision was made under the extant Part 20 of the Supreme Court Rules 1970 (NSW), the provision allowed amendment “at any stage of any proceeding”. Bryson J, in exercising his discretion to refuse leave, considered numerous authorities concerning amendments to pleadings and the necessity to reopen a hearing. His Honour referred to the observations of Clarke JA in Urban Transport Authority of New South Wales v Nwieser (1992) 28 NSWLR 471, where Clarke JA said at 476C:

“The primary purpose for the rules pursuant to which cases are contested in this State is the furtherance of the interest of justice. For this reason the exercise of the discretion to allow an application to re-open depends essentially upon the trial judge's view as to whether the interest of justice are served better by granting than refusing the application. Of course, there needs to be finality in litigation and a limit upon the number of issues which it is open to the parties to contest at the-hearing. For this reason evidence contradicting a witness' testimony in cross-examination on matters going to credit is, generally, excluded. But that is because it is seen as desirable to confine the ambit of the inquiry within reasonable limits in the overall interests of justice.”

53. Clarke JA also stated at 478D:

“The principle which should guide the Court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the Court to reject an application where the decision not (to) call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts of the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.”

54. It is clear from the conduct of the trial that the plaintiff relied upon the more generalised particulars to support a claim in negligence, and the effects of tiredness and of drugs on the defendant were considered by Senior Counsel for the plaintiff. The fact that the defendant felt tired and informed the plaintiff that she could not continue to drive arose from the defendant’s evidence in chief and Senior Counsel for the plaintiff was given an opportunity to cross-examine the defendant and to put a case in reply. Dr Perl was not required for cross-examination and the matter proceeded to final submissions after five days of evidence. The plaintiff also addressed the Court extensively on both the issue of tiredness and the effects of drugs on the defendant. These were tactical decisions made by Senior Counsel for the plaintiff and the issue of tiredness was not overlooked.

55. Although the plaintiff’s affidavit in support of this motion appears to point to the Third Further Amended Defence as the sole basis giving rise to the plaintiff’s application to amend the Statement of Claim, it is clear that the amendments now sought cannot be attributed to any issue arising from the Third Further Amended Defence. Such defence raises issues of illegality, and has nothing to do with the alleged tired state of the defendant. Issues of the defendant’s tiredness could have been raised following the defendant’s testimony in August 2018.

56. Applying Bryson J’s reasoning to the present circumstance, and noting Senior Counsel for the plaintiff had addressed the Court extensively on both the drug and tiredness issues, leave to rely upon this proposed particular is refused. Alternatively, applying the principles in Aon Risk Services Australia Limited v Australian National University, this amendment should not be allowed given:

1. The plaintiff’s acknowledged failure in not seeking an amendment earlier;

2. The unsatisfactory explanation given by the plaintiff in saying that there is no delay in seeking the amendment by pinpointing the Third Further Amended Defence as the basis for the plaintiff’s application to amend the Statement of Claim, when the basis for the amendment related to the “failure by the plaintiff”, as acknowledged by Mr Jobson on 11 February 2022, not to have taken up the opportunity to seek an amendment on or shortly after the defendant’s evidence on 20 August 2018.

Proposed Particular (vii), (viii) and (ix)

57. These particulars were withdrawn during oral submissions on 11 February 2022.

Proposed Particular (x) - Re-starting to drive after being overwhelmed by tiredness

58. This proposed particular gives rise to the same considerations as is referred to previously with regard to proposed particular (vi) above. For the same reasons, this proposed particular will be rejected.

Proposed Particular (xi) - Masking tiredness

59. The plaintiff’s case was not conducted on the basis that the defendant had concealed tiredness. The defendant stated that she needed to sleep and that the purpose of the car journey was to enable the plaintiff to go fishing and to enable the defendant to sleep. There is no cross-examination of the defendant to suggest that she sought to conceal from the plaintiff the fact that she needed to sleep. To the contrary, the unchallenged evidence shows that the defendant warned the plaintiff that she was incapable of driving, yet the defendant encouraged her to keep driving.

Proposed Particular (xii) - Driving off the road in a state of tiredness and lack of alertness

60. This particular encompasses separate issues. The first relates to the manner in which was driven. This is already the subject of the existing particulars relating to the manner in which the vehicle was being driven. The second issue relates to the state of tiredness. The Court has already addressed this consideration in the discussion above relating to amendments to the particulars. With respect to the third issue, namely the issue of “lack of alertness” of the defendant, the Court refers to the unchallenged evidence of Dr Perl reproduced hereunder. At paragraph 29 of Dr Perl’s 2015 report, she stated:

“29. Therefore, based on the blood results which are consistent with the heavy use of methylamphetamine and cocaine prior to the collision, based on her own subjective assessment that she felt affected and based on her manner of driving, I am of the opinion the Driver would have been very significantly impaired in her ability to drive. Given these factors she would have been in the acute stage of stimulation due to methylamphetamine and cocaine and she would most likely have been displaying the signs of acute intoxication due to these drugs.

Typical signs and behaviours displayed by stimulant users in the acute stage after usage of moderate to high doses, include increased activity and alertness, talkativeness, restlessness, pupil dilation, increased sweating, a euphoric stage characterised by rapid speech, often jerky movements, high energy, tremors and increased agitation.”

61. For this particular to be allowed, it would necessitate recalling Dr Perl and the probability that expert evidence would need to be adduced on behalf of the plaintiff. For this reason, the proceedings would need to be reopened for a further hearing.

Summary of findings

62. The Court makes the following observations:

1. The plaintiff’s evidence and the defendant’s evidence were heard on the basis of the statement of claim and closing submissions were made on this basis. The proposed amendments would raise a different case of negligence, since tiredness did not form part of the allegations of negligence. In substance, a new case would be raised.

2. If the amendments were allowed, the defendant would need to seek leave to reopen her case to obtain evidence from Dr Perl and from the defendant.

3. The plaintiff submits that the words alleged to be said by the plaintiff (whilst not identified) relate only to the issue of contributory negligence. However, this is plainly incorrect, since the words used by the plaintiff are also relevant to the parties’ understanding of who is responsible for driving and the pre-existing arrangements or understanding of the parties for the journey.

4. The defendant foreshadowed the necessity to raise the defence of joint illegal enterprise prior to the hearing. Although the defendant was unsuccessful in obtaining an amendment at an interlocutory stage, such amendment was permitted following the hearing of the evidence; such amendment is unremarkable (see Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668) and such amendment was not opposed by the plaintiff (see 7 December 2021 transcript at T 7-8). In contrast, the plaintiff seeks to change its case following the hearing of all evidence and submissions. The plaintiff must have taken to have adopted a strategy for the conduct of its case. It should be bound by such conduct. Contrary to the submissions of the plaintiff, the amendment now sought by the plaintiff has nothing to do with the amendments made to the defendant’s defence.

5. The reason put forward by the plaintiff’s solicitor in his affidavit in support of the motion to amend asserts that the proposed amendments result from the fact that the Court permitted the defendant to file an amended defence raising joint illegal enterprise. The amendments allowed in the Third Further Amended Defence related to the issue of the joint illegal enterprise defence, and the alternative defence of the plaintiff engaging in conduct so tainted by illegality as particularised by reference to statutory breaches of the Drug Misuse and Trafficking Act 1985 (NSW), sections of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Road Transport (Driver Licensing) Act 1998 (NSW). The defendant now seeks to raise the tiredness of the defendant as a new issue. Such issue is raised apparently to counter the evidence relating to the effects of drugs upon the defendant. But the plaintiff had not availed himself of the opportunity to adduce evidence and to cross-examine Dr Perl on the issues which it now seeks to raise.

6. These proceedings have already been before the Court for more than three years. If the amendments are allowed, a further hearing on the new issues, would be required, which would necessitate fresh evidence. An unacceptable delay would result, and would be contrary to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), as well as the principles expounded by the High Court in Aon Risk Services Pty Ltd v Australian National University.

Conclusion

63. For the above reasons, the Court dismisses the plaintiff’s motion to amend the statement of claim.

Order

64. The Court orders that:

1. The plaintiff’s notice of motion filed 7 January 2022 is dismissed.

2. The plaintiff to pay the defendant’s costs of and incidental to the notice of motion.

**********

Decision last updated: 15 March 2022