Reynolds v Thomson

[2006] TASSC 57

[2006] TASSC 57

CITATION:            Reynolds v Thomson [2006] TASSC 57

PARTIES:REYNOLDS, Garry John by his Litigation Guardian DIANNE VICKI MAE REYNOLDS

v
  THOMSON, Donna

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  372/2004
DELIVERED ON:  7 July 2006
DELIVERED AT:  Hobart
HEARING DATES:  21 and 23 June 2006
DECISION OF:  Master S J Holt

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Discretion –

Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
           Plaintiff:  D J Gunson SC
           Defendant:  K B Procter SC
Solicitors:
           Plaintiff:  Ware & Partners
           Defendant:  Murdoch Clarke

Judgment Number:  [2006] TASSC 57
Number of paragraphs:  17

Serial No 57/2006
File No 372/2004

GARRY JOHN REYNOLDS by his Litigation Guardian
DIANNE VICKI MAE REYNOLDS v DONNA THOMSON

REASONS FOR DECISION  MASTER S J HOLT
  7 JULY  2006

1. This is an application for leave to amend the defence. 

1. The statement of claim is as follows.  The plaintiff was a passenger in a motor vehicle being driven on the Eyre Highway in Western Australia by the defendant on 10 January 2004.  The plaintiff suffered injury when the vehicle left the road and overturned as a result of negligent driving.  The particulars of the allegation of negligence are to the effect that the defendant drove too fast and failed to maintain proper control of the vehicle.  In the defence which was filed in November 2004 all of these allegations are denied.

1. In the proposed amended defence there are admissions that the defendant was the driver and the plaintiff a passenger;  that the vehicle left the road and overturned resulting in injury to the plaintiff and that the accident was due to the defendant's negligent driving.  The defendant however wishes to add pleas that the plaintiff was owed no duty of care which was breached;  voluntarily accepted the risk of injury and that he contributed to his injury by his own negligence.

1. The allegations proposed in support of those pleas are that the plaintiff "insisted" that the defendant drive knowing that "she had had no sleep for more than 24 hours … she had had no food for approximately 36 hours … she was taking … medication endorsed with advice that persons taking it should not drive a motor vehicle …  she and he had been driving, between them, virtually non-stop for approximately 24 hours".

1. Pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s17, the Motor Accidents Insurance Board has taken charge of the proceedings on behalf of the defendant. In order to explain why the amendment application was not brought until June 2006 an affidavit sworn by the Board’s solicitor was read into evidence.

1. The solicitor was cross-examined.  He gave evidence that he has not interviewed the defendant to ascertain directly from her the circumstances in which the accident occurred.  He has relied on his inspection of the police file.  That file includes a document headed “Incident Report” and a document headed “Statement of Material Facts”. 

1. The Incident Report includes the following:

“About 1600hrs on Sat 10/01/2004 the offender drove Toyota m/v…. south [sic] on Eyre Highway when it was involved in a crash.  At the time she had ingested a number of prescription medications that had been marked with warnings against driving.  She had little or no sleep for 23 hours preceeding [sic] the crash.  As a result the victims [sic] sustained life treatening [sic] head injuries.”

1. The Statement of Material Facts contains the following:

“On January 8, 2004 after arriving by ship at Melbourne they commenced their continuous drive to Perth via the Eyre Highway.

They had driven their vehicle for a period of in excess of 24 hours and whilst attempting to overtake a west bound road train, initially failed to notice an oncoming vehicle but did so, pulling in behind the road train.

After the oncoming vehicle had passed the driver of the red Toyota Cressida again pulled out to overtake the road train and in doing so contravened road markings consisting of a continuous painted white line, indicating that an overtaking manoeuvre should not be carried out at this point.

…

The Toyota continued west along the Eyre Hwy and at a location about 26 kilometres east of Norseman the road train driver came across the same red coloured Toyota which had crashed.

The vehicle had rolled over coming to rest in the road side ditch to the southern side of the Eyre Highway.

The truck driver recognised the vehicle as the same vehicle that had overtaken his truck, prior to the crash.

…

Marks at the scene indicate that the Toyota had been heading west along the Eyre Highway, and it had travelled to its incorrect side of the road, gradually entering the gravel verge before returning to the bitumen surface where it had rolled over several time [sic] coming to rest on its wheels.

A search of the vehicle revealed the presence of a running log of the Journey from Tasmania.

The general text of this text of this log is [sic]:

7 Jan, left Hobart 6pm arrived Devanport [sic] 9:45
Boarded spirit 2 at 7:30.
8^th Jan arrived Melbourne 7pm
Ballarat, Adelaide Port Wakefield
Port Augusta slept 1145 to 5:30pm
Left 8:10pm out of petrol Wuddine,
Service station closed 11pm got there 11:30pm
No breakfast, lunch or tea as yet, no more towns 2 hours
10/01/04 ran out of petrol Nullabor Plain, got here at 5:45am not open until 7:00am
Made WA boarder [sic] 6:35am
Made Balladonia 2:05pm Perth time (4:25pm Tas)

Time on the road 23 Hours

The crash occurred about 2 hours after leaving Balladonia.

At the time the defendant was taking several prescribed medications some of which were endorsed with the information that anyone using the medication should not drive a motor vehicle.

The Agriculture border inspection sheet at Eucla recorded the Toyota with two occupants passing the inspection point at 0750 hours 10/01/04

As a result of the crash the passenger in the vehicle Garry REYNOLDS suffered life threatening injuries and at the time of completing these facts was alive in the intensive care unit at Royal Perth Hospital, assisted by life support and there is a very strong likelihood that he will die.

The accused was not seriously injured but required hospital treatment.

No other vehicle or property was involved in the collision.

The weather was fine, dry and clear with the area subject to a 110 km/h speed limit.

The accused did not participate in any interview with Police.”

1. On behalf of the plaintiff some answers to interrogatories given by the defendant were tendered.  The answers differed from the Incident Report and the Statement of Material Facts and were to the following effect.  The defendant had eight to ten hours sleep in the 24 hours prior to the accident.  Included in this was two to three hours sleep whilst the plaintiff drove the car to Balladonia.  The plaintiff and the defendant had lunch at Balladonia.  They left at approximately 2pm with the defendant driving.  The accident occurred about two hours later approximately 190 kms west of Balladonia.  At the time the defendant was driving the car shortly prior to the accident she was not experiencing symptoms of tiredness.

1. Counsel for the plaintiff submitted that the proposed amendments, other than the admissions, should not be allowed because:

(a)the plea of no breach of duty is not explained in that it is not linked to any other allegations, for example, the defendant’s alleged lack of sleep and food and the plaintiff’s knowledge of it;

(b)the cause of the accident proposed to be alleged, for example the driver’s drowsiness, has not been specified;  and

(c)the information available to the defendant's solicitor is insufficient to constitute a reasonable basis for making the proposed allegations and “Absent evidence to support the proposed pleas the Court should not allow it.  To do so would be futile”.

1. The Supreme Court Rules 2000, r227, requires a pleading to “contain only a statement of all the material facts in summary form on which the party relies” and “to give reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial”.

1. Speaking of pleadings generally Mason CJ and Gaudron J said in Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286:

“The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liquidation) (1916) 22 CLR 490, at p517, per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.”

1. Where a passenger is injured in a motor vehicle accident after knowingly accepting the voluntary services of an impaired driver the position is as referred to by McHugh J in Joslyn v Berryman (2003) 214 CLR 552 at 561 where he said:

“… the issue came before this Court for the first time in Insurance Commissioner v Joyce (1948) 77 CLR 39 (Latham CJ, Rich and Dixon JJ). Latham CJ and Dixon J both held that the passenger's entitlement to sue could be defeated on any one of three grounds: no breach of duty, volenti non fit injuria and contributory negligence. Latham CJ held that the passenger's claim failed because of contributory negligence and the voluntary acceptance of an obvious risk. Rich J held that the plea of volenti non fit injuria had been made out. Dixon J preferred to decide the case on the basis that a passenger who knowingly accepts the voluntary services of a driver affected by drink ... cannot complain of improper driving caused by his condition, because it involves no breach of duty'” - .

1. The proposed plea makes the bases upon which it is intended to be asserted that the defendant is not liable and the asserted factual foundation for that claim sufficiently clear. It complies with r227 and satisfies the function of pleadings. I would not withhold leave to amend on the grounds advanced on behalf of the plaintiff that the proposed plea contains gaps or lacks clarity.

1. The approach to be taken to applications for pleading amendments is as set out by Kirby J in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167 – 172. Suffice to say the power to amend is expressed in wide language and no rigid or inflexible rules should be laid down. However, as stated in Commonwealth of Australia v Verwayen (1990) 170 CLR 394, by Dawson J at 456:

“In granting leave to amend, a court is concerned with the raising of issues and not with their merits.”

1. As regards the plaintiff’s futility argument I would not disallow the proposed amendments on the ground that they lack an adequate factual foundation.  There was no suggestion that the amendment application was brought in bad faith.  I was referred to no authority suggesting that a party wishing to amend should demonstrate a prospect of success in respect of proof of the facts proposed to be alleged.  

1. There is no assertion that the plaintiff will suffer an injustice if the amendment is allowed on appropriate terms as to costs.  I have rejected the plaintiff’s argument that the plea does not adequately identify the case to be met and the plaintiff’s argument that it should be disallowed as lacking evidentiary support.  There will be an order that the defendant have leave to amend the defence in the terms proposed.