Resnick v Princess Margaret Hospital - [2000] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RESNICK -v- PRINCESS MARGARET HOSPITAL [2000] WADC 168

CORAM: COMMISSIONER LEY

HEARD: 21 FEBRUARY 2000

DELIVERED : 3 JULY 2000

FILE NO/S: CIV 5052 of 1992

BETWEEN: GAIL RESNICK
Plaintiff
AND
PRINCESS MARGARET HOSPITAL
Defendant

Catchwords:

Practice and Procedure - Writ - Indorsement of claim - Amendment - Amendment time barred - Discretion of count to allow amendment - Rules of the Supreme Court 1971, O 21 r 5.

Legislation:

Nil

Result:

Leave to amend refused

Representation:

Counsel:

Plaintiff: Mr M A Tedeschi
Defendant: Mr D A McCloskey

Solicitors:

Plaintiff: Taylor Smart
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Morgan v Banning (1999) 20 WAR 474

Case(s) also cited:

Bill Discount Services Pty Ltd (in liquidation) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987
Coutts & Co v Duntroon Investment Corporation Ltd [1958] 1 WLR 116
Dallas Development Corp Pty Ltd v Western Australian Land Authority, unreported; FCt SCt of WA; Library No 980245; 7 May 1998
Hill v Luton Corporation [1951] 2 KB 387
Pontin v Wood [1962] 1 QB 594
In re Keystone Knitting Mills' Trademark [1929] 1 Ch 92
Stone James v Pioneer Concrete (WA) P/L (1985) WAR 233
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd & Ors 13 WAR 323

COMMISSIONER LEY:

Background

In these proceedings, the plaintiff claims damages for injuries which she alleges she suffered whilst employed by the defendant between 18 August 1986 and October 1993. She alleges that her injuries were caused by the negligence of the defendant and by the defendant's breach of contract. However, I was informed, during the course of the hearing of the application to which this judgment relates, that the plaintiff's claim for damages for breach of contract would not proceed.
The writ of summons by which these proceedings were commenced was filed on 17 August 1992. The writ bore an indorsement of claim in the following terms:
"The plaintiff claims damages for personal injuries and for loss and damage suffered consequential to those injuries that were sustained in or about November 1986 while the plaintiff was working for the defendant and in the employment of the defendant at Roberts Road, Subiaco all of which were caused by the negligence of the defendant, its servants or agents."
A copy of the writ was obviously served on the defendant which entered an appearance on 31 August 1992.
That was the last thing that happened in the proceedings for a very long time. It was not until 17 March 1999 that solicitors different from those who had issued the writ filed a notice of change of solicitor and a notice of intention to proceed.
On 9 August 1999, the plaintiff filed an application for an order that these proceedings be consolidated with action CIV 3384 of 1996. Those proceedings involved a claim by the plaintiff against one Grant Raymond Cohen for damages for negligence in respect of injuries which the plaintiff allegedly suffered in a motor vehicle accident on 28 May 1991. The plaintiff apparently wanted these proceedings consolidated with those because, she alleged, the injuries she suffered in the motor vehicle accident were in effect an aggravation of the injuries which she claims to have suffered whilst in the employment of the defendant and which are the subject of the claim in these proceedings.
That application was heard on 19 October 1999 and while no order was made to consolidate the two sets of proceedings it was ordered that the trial in the other proceedings take place at or immediately after the trial in these proceedings and that the defendant in the other proceedings be at liberty to appear upon the trial of these proceedings.
Before that application was heard, on 25 August 1999, the plaintiff filed and served a statement of claim. Quite obviously, that was well outside the time limit for serving a statement of claim as prescribed by O 20 r 1. In fact, it was almost seven years outside that time limit. Notwithstanding that, it does not appear that any objection was taken by the defendant to the late service of the statement of claim. Certainly, no application for leave under O 20 r 1 was made.
The other significant thing about the statement of claim was the way in which it pleaded the onset of the injuries allegedly suffered by the plaintiff whilst in the employ of the defendant. Whereas in the indorsement of claim it had been alleged that the injuries for which the plaintiff claimed damages "were sustained in or about November 1986", it was pleaded in the statement of claim that:
"2.At all material times the plaintiff was employed, initially from about 18 August 1986 as a trainee sonographer, and, thereafter, from about 1989, as an [sic] senior ultrasonographer by the defendant until about October 1993 under a contract of employment the terms of which will be referred to at trial.
3.From about early 1987 the plaintiff was expected to do the work of a qualified ultrasonographer, even though a trainee, and was compelled to complete all the work of a [sic] ultrasonographer in the Medical Imaging Department (hereafter referred to as ultrasound department) without assistance and continued to do to (sic). She was compelled to work from about 8.30 am to about 5.15 pm each day five days a week save and except for holidays. In addition to this overtime was required on an almost daily basis until about 6.00 pm until about April 1990.
4.In or about November 1986 the plaintiff, in the course of her employment with the defendant, experienced pain in and around her right shoulder and scapula.
5.In or about December 1986 the plaintiff gave notice to her immediate superior, the chief radiographer, of pain in her right shoulder and scapula and having received treatment for that complaint the plaintiff was advised not to scan for about two weeks. Notwithstanding the symptoms experienced by the plaintiff, the treatment received and advice that she should cease scanning, the plaintiff was permitted or encouraged to remain at work undertaking light duties.
6.The plaintiff resumed her normal duties in or about January 1987 and was advised to take more frequent breaks during her work as ultrasonographer and to alter her work method so as to minimise the extent to which she was required to maintain her right arm in an elevated position. Notwithstanding that advice the plaintiff continued to be the sole ultrasonographer employed in the ultrasound department and did not receive any assistance from other staff members.
7.From 1986 to about 1988 the plaintiff's workload in the ultrasound department increased by about 40 per cent and her repeated requests of her superiors for assistance were ignored, notwithstanding their knowledge of the fact that she had sustained injuries in the course of her work with the defendant.
8.The plaintiff continued until about 1989 when an additional sonographer [part time] who attended two sessions of 3½ hours each session was appointed to the ultrasound department. But the advantage to the plaintiff of that additional sonographer was offset as an additional Acuson machine was installed by the defendant to the ultrasound department. Additional patients were booked in and the plaintiff was still required to attend to the same or the similar number of patients as she was required to attend to before the appointment of that additional sonographer.
9.Moreover from about 1990 the radiologist in charge of imaging, Dr Thonell, himself frequently attended the ultrasound and physically attended to the ultrasound requirements of patients. Dr Thonell's assistance in the ultrasound department assisted the plaintiff but by then the plaintiff had already sustained severe injuries and she could not cope even with a reduced workload. Moreover, Dr Thonell was at that time only rostered in ultrasound for two or three sessions out of 10 per week. In about 1993 this became more frequent.
10.By reason of the matters aforesaid the plaintiff suffered severe personal injuries."
It can be seen immediately that there was a stark difference between the indorsement of claim and the statement of claim in respect of the manner in which and the time during which the plaintiff allegedly suffered her injuries. In the indorsement of claim, it was alleged that the plaintiff had sustained her injuries once or, perhaps, over a period of a month or something over a month in or about November 1986. On the other hand, in the statement of claim it was alleged that the plaintiff's injuries had occurred by gradual onset between November 1986 and, perhaps, 1993.
On 13 October 1999, the defendant filed a defence. In par 3 of the defence, the defendant denied each and every allegation contained in par 3 to par 10 of the statement of claim and, in par 4 of the defence, denied that it was negligent.
That was the last thing that happened in the proceedings until 17 November 1999, when the current application was filed.

The application

In the application, the plaintiff seeks leave to amend the indorsement of claim to read as follows:
"The plaintiff claims damages for personal injuries and for loss and damage suffered consequential to those injuries that were sustained between in or about November 1986 and until about October 1993 while the plaintiff was working for the defendant and in the employment of the defendant at Roberts Road, Subiaco all of which were caused by the negligence of the defendant, its servants or agents.
AND THE PLAINTIFF CLAIMS:
1.Damages;
2.Interest;
3.Costs."
As can be seen, the amendment seeks to change the allegation from one that the plaintiff's injuries were suffered in or about November 1986 to allegation that her injuries were suffered "between in or about November 1986 and until about October 1993".
The application is brought under O 21 r 5 which relevantly provides:
"(1)Subject to …. the following provisions of this Rule, the Court may allow the plaintiff to amend his writ…. on such terms as to costs or otherwise as may be just and in such manner (if any) as the Court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in par ….(5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it is just to do so.
….
(5)An amendment may be allowed under par (2) notwithstanding that the effect of the amendment will be to add or substitute 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 by the party applying for leave to make the amendment."
A case with very similar facts was considered by the Full Court in Dye v Griffin Coal Mining Co Pty Ltd(1998) 19 WAR 431 in respect of an application under O 21 r 5 for leave to amend a statement of claim. In that case, the appellant was employed by the respondent at mine sites in Collie. In the period from January to 12 October 1990 the appellant was employed to drive a truck on mine roads. The appellant alleged that the roads and the vehicle which he was given to drive were of such construction that the vehicle was subjected to violent physical shocks, resulting in jolting which was transmitted to the appellant's body through the driver's seat. The appellant claimed that, as a result of the jolting, he had suffered a back injury.
When the appellant issued a writ, he alleged, in his indorsement of claim, that he had suffered injury as a result of the respondent's negligence, breach of statutory duty and breach of contract on or about 12 October 1990. He made the same allegation in the statement of claim which he filed eight months after the writ. However, some considerable time later, and after the relevant period of limitation had expired, he sought leave to amend his statement of claim to allege that his back injury had been suffered as a result of the jolting "throughout the period between January and 12 October 1990".
In the District Court, where the claim had been commenced, the appellant was refused leave to amend his statement of claim to make the new allegation. The issues before the Full Court were:
1.Whether the new allegations sought to be incorporated into the statement of claim constituted a fresh cause of action;
2.If they did, whether the fresh cause of action arose substantially out the same facts as the cause of action pleaded in the statement of claim;
3.Whether the Court had power to permit an amendment to add a new cause of action after the expiration of the limitation period otherwise than strictly in accordance with O 21 r 5(5).
Owen J (with whom Malcolm CJ and Kennedy J agreed) held that the new allegation constituted a fresh cause of action which did not arise out of the same facts or substantially the same facts as a cause of action pleaded in the statement of claim. His Honour said (at 435):
"The impugned conduct attributed to the respondent in the original claim existed quite separately from that sought to be advanced in the amendments. Looked at in this way, the amendments involve the advancement of a new cause of action based on the various and additional acts of negligence. Counsel for the appellant submitted that this was not the appropriate way to address the issue because the cause of action did not arise until the damage had been suffered, in this case the appearance of the back injury. However, I think that it is more appropriate to say that the allegation is of an injury that occurred and was then aggravated over the period. Counsel also point out that the impugned conduct involved the same injury arising from the same cause, namely the appellant driving the same vehicle over the same roads in the course of the same employment. Save for an argument about cause (whether that aggravation involves causation arguments from a single act), that is undoubtedly so. However, it does not get around the problem that the original statement of claim involved a single incident or a series of incidents on one day. On the other hand, the amendment sought to bring into consideration an entire course of conduct over an extended period. That seems to me to involve different facts and an expanded range of issues."
Owen J then considered whether even though the new allegations involved a fresh cause of action which did not arise out of the same facts or substantially the same facts as a cause of action pleaded in the statement of claim, the Court still had a discretion under O 21 r 5(1) to allow the amendment. His Honour concluded that it did not. He said (at 439):
"In light of the authorities and as a matter of construction, I think the effect of the rules is that the rule in Weldon v Neal continues in force in truncated form, being qualified only to the extent that O 21 r 5 allows some amendments out of time for certain limited purposes. Relevantly, when confronted with a proposed amendment that seeks to add a cause of action that is otherwise statute-barred, the Court has a discretion to allow the amendment under O 21 r 5(5) if the conditions set out in that rule are satisfied. The general discretion in O 21 r 5(1) is limited to that extent."
In the present case, it is quite clear from a consideration of both the proposed amended indorsement of claim and the statement of claim filed on 25 August 1999 that acts of negligence additional to and committed at different times than the act of negligence originally included in the indorsement of claim are being alleged. Paragraphs 4 to 9 of the statement of claim suggest that the plaintiff suffered an injury to her right shoulder and scapular in or about November 1986 and that that injury was aggravated over the following years. It is now the entire course of conduct over the period from November 1986 to October 1993 that the plaintiff seeks to have examined rather than a single incident or a series of incidents occurring in or about November 1986.
Notwithstanding the obvious similarities between the present case and Dye, counsel for the plaintiff urged me not to follow Dye but to follow instead a later decision of the Full Court in Morgan v Banning (1999) 20 WAR 474. That was a case, like the present, which involved an application for leave to amend an indorsement of claim. The original indorsement had been defective because it had not specified any of the plaintiff's causes of action. The defendant had applied to inter alia strike out the indorsement and the plaintiff had effectively conceded that application but had applied for leave to amend to include the causes of action. The Master who heard the application had granted leave to amend but had ordered that the amendment not relate back to the date of the issue of the writ but take effect only from the date of his order. Although other grounds were included in the appeal to the Full Court, the appeal was effectively argued on the ground that the Master had erred in ordering that the amendment take effect from the date of his order. The Full Court allowed the appeal on that ground.
Wheeler J (with whom Ipp J and Owen J agreed) said (at 483):
"It appears to me that two consequences follow from the proposition that the Limitation Act is concerned with the writ and not with 'good or bad indorsement', let alone with statements of claim. First, if the writ when issued, although defective, is not a nullity, and its terms are wide enough to encompass the amendments sought to be made to clarify or particularise or 'cure' it, then it seems that no question of limitation arises. Such an action is within time and subsequent steps (even though directed to defects in the original indorsement) are merely steps taken in a validly instituted action with respect to which it is not necessary to consider limitation questions. However, if it is so irregular that, subsequent to the expiry of the limitation period, the defendant is successful in having it wholly set aside, it will then be too late for the plaintiff to bring a further action.
The second proposition which seems to me to follow is that if the effective indorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time-barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time-barred. Whatever the rules of Court may provide, an action which in fact is instituted out of time is able to be defeated by reliance upon the Limitation Act, which the Court has no power to override, whether by procedural rule of 'relation back' or otherwise."
In my view the present case is distinguishable from Morgan v Banning. There has never been any suggestion in this case that the original indorsement of claim was defective in any way. The only problem with it is that the plaintiff now says that it does not accurately reflect the claim she wants to bring. In my opinion, the amendment which she proposes seeks to add fresh and time-barred causes of action based on acts of negligence which do not arise from the same facts or substantially the same facts as those already alleged in the indorsement.
Therefore, the application for leave to amend the indorsement of claim is refused.