Roslyn Marie Davis v JULIE Van Deventer No. SCGRG 92/2700 Judgment No. 3807 Number of Pages 4 Practice and Procedure Case Flow Management Principles

[1993] SASC 3807

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT ADELAIDE PERRY J

CWDS
Practice and procedure - case flow management principles - Appeal against order of Magistrate allowing, shortly before trial, amendment of defence to allege that the plaintiff's injury resulted from a novus actus, namely, chiropractic treatment rather than from the subject accident and also from order refusing an adjournment of the trial - held that the order permitting the amendment was not made in error and furthermore the refusal of an adjournment of the trial was in accordance with the case flow management principles - the plaintiff should not have been embarrassed by the amendment as she had been on notice some months before when her own specialist's report was given that an allegation of the kind sought to be pleaded would be made - appeal dismissed. United Motors Retail Limited v Australian Guarantee Corporation Limited (1991) 163 LSJS 1 referred to. Magistrates Court (Civil Rules) R 3.

HRNG ADELAIDE, 27 January 1993 #DATE 27:1:1993
Counsel for appellant:         Mr M Blumberg
Solicitors for appellant:     Leonida and Co
Counsel for respondent:        Mr A Ward
Solicitors for respondent:     Ward and Partners

ORDER
Appeal dismissed.

JUDGE1 PERRY J. In this matter, the appellant is the plaintiff in proceedings which were issued in the Local Court of Adelaide, as it then was, on 16 January 1991. The proceedings have been continued as from 1 July 1992, in the Adelaide Magistrates Court. 2. In the proceedings, the appellant claims damages for injuries alleged to have been suffered by her as a consequence of a rear end collision with a vehicle in which she was a passenger, which occurred on 20 January 1988, at Windsor Gardens. 3. The injury which she asserts that she suffered is of the kind commonly described as a whiplash injury, with various sequelae alleged to have resulted from it. 4. The respondent to the appeal, who is the defendant in the action in the court below, filed a defence asserting that he did not know and, therefore, could not admit "the injury, loss, or damage alleged to have been sustained by the plaintiff". 5. Following the usual interlocutory steps, the matter was on 31 August 1992, at the second conciliation conference, listed for trial, the date set for trial being 8 December 1992. 6. On 14 August 1992, the appellant's solicitors wrote to the respondent's solicitors enclosing a report furnished by a Dr Owen with respect to the plaintiff's condition. In the report, Dr Owen, amongst other things, suggested that there might be cause to conclude that rather than having been caused by the accident in question, some of the plaintiff's symptoms might be referrable to chiropractic treatment which she had received from a chiropractor. 7. On 2 November 1992, the respondents served on the appellant's solicitors an application to amend the defence so as to include in it specific assertions that the symptoms of which the plaintiff then complained, were caused by the chiropractic treatment and not caused by the accident. 8. The application to amend the defence came on for hearing on 6 November 1992. It was opposed by counsel for the appellant. After hearing argument, the learned Special Magistrate who heard the application made an order permitting the amendment to be made. 9. Counsel for the appellant submitted before the Magistrate that if the amendment was allowed, the trial should be adjourned, because the amendment would open up what was described in the affidavits before me as:
    "...an entire new area of enquiry. A medical opinion would
    have to be obtained to assess the impact of the alleged
    event, a reply would have to be filed, and the chiropractor
may need to be joined as a co-defendant". 10. The learned Magistrate refused to accede to the submission that the trial be adjourned. It appears that this was as a result of his view that the plaintiff was on notice from the date of Dr Owen's report, namely, 7 July 1992, of the possibility that it might be asserted that some or all of the plaintiff's symptoms were attributable to the chiropractic treatment. 11. Following the Magistrate's decision, an application was taken out in this Court on 12 November 1992 for leave to appeal against the order permitting the amendment to the defence, and the refusal of the adjournment of the trial. Leave to appeal was granted ex parte by a judge of this Court on 19 November 1992. It was a term of the order giving leave to appeal that the action in the Magistrates Court be stayed. The practical effect of the order was, therefore, to abort the trial date. 12. When the appeal came on for argument before me today, at the outset I drew to the attention of Mr Blumberg, counsel for the appellant, that the trial date having been aborted, there seemed to be little reason in pursuing the appeal. What had not been achieved before the Magistrate had been achieved by the expediency of lodging an application for leave to appeal. 13. Notwithstanding that intimation, Mr Blumberg felt compelled to argue the merits of the appeal. 14. He drew attention to rule 3 of the Magistrates Court (Civil) Rules pursuant to which the Magistrates Court must "have regard" to R.2 of the Supreme Court Rules "subject to any necessary modification". There is no doubt that the effect of rule 3 of the Magistrates Court (Civil) Rules, is to engraft on to the procedures of the Magistrates Court what have commonly come to be described as case flow management principles. Mr Blumberg, by reference to the comments in particular of King CJ, in United Motors Retail Limited v Australian Guarantee Corporation Limited (1991) 163 LSJS 1 submitted that the Magistrate erred both in permitting the amendment so close to trial, and in refusing to adjourn the trial. 15. In my opinion, the appellant has failed to demonstrate that with respect to either course of action the learned Magistrate erred. With respect to the order permitting leave to amend the defence, I am unable to see how that order in any way embarrassed the plaintiff, given the fact that the plaintiff was on notice of the possibility that some of her symptoms might be attributable to a novus actus interveniens as at the date of the receipt of the report of Dr Owen, which presumably was shortly after the date which it bears, namely 7 July 1992. Mr Blumberg's submission that the plaintiff was neither put on notice as to such a possible line of defence, nor obliged to do anything about that aspect of the matter unless and until it was pleaded is, in my opinion, not consistent with the reality of the situation as it should then have appeared to the plaintiff's advisers. 16. It is a nice question whether it was incumbent upon the defendant in any event specifically to plead that the injuries were attributable to the chiropractic treatment. But even if it was incumbent upon the defendant to plead to that, the likelihood that they would seek to raise the matter by way of defence should have been obvious to the plaintiff's advisers on the date upon which they received Dr Owen's report. 17. Even if that is not the correct way of looking at the matter, the fact remains that the evidence as to the possible effect of the chiropractic treatment upon the plaintiff's symptoms and condition was in the hands of the plaintiff throughout, in the sense that it was her own specialist adviser who drew attention to the matter, that is, Dr Owen, in his report, and the chiropractor was also, presumably, a witness or potential witness on behalf of the plaintiff who could have been proofed or proofed more fully by the plaintiff's advisers at short notice. In other words, even if one considers the plaintiff as being in a position to address the matter only from the date upon which the amendment was granted on 6 November 1992, it seems to me that the elapse of a month between then and the date which was set for the trial, was a sufficient time within which the plaintiff could have addressed those matters and marshalled the necessary evidence bearing on them, in readiness for the trial. It is true that there may not have been time effectively within that period to join the chiropractor, but there is no reason why action against the chiropractor necessarily should have been brought before the trial date. The chiropractor could have been sued by separate proceedings, if the outcome of the present proceedings suggested that that was a proper course to take, subject to an extension of time under the Limitation of Actions Act. 18. However, for the reasons which I have indicated, in my opinion, the plaintiff was on notice well before November 1992 of the possibility of the defendant being in a position to raise the matters which it ultimately sought to raise in the amended defence, and the plaintiff should have taken the necessary steps to be prepared to deal with that issue as from soon after 7 July 1992. 19. As to the order refusing the adjournment of the trial, this was clearly consistent with the case flow management principles. For the reasons which I have given, the amendment to the defence should not have embarrassed the plaintiff, and there was no reason at all why the action could not have proceeded on 8 December 1992, notwithstanding the amendment. It is not as though the allegation that the chiropractic treatment might have contributed to the plaintiff's symptoms is an unusual allegation to be made in cases of this kind. It was an allegation which experienced solicitors dealing with personal injury claims should have been able to take on board and deal with promptly and within the period leading up to the date of trial. 20. In my opinion, on the merits of the appeal, the appellant cannot succeed, but, quite apart from that, the appeal should be dismissed in any event because to allow the appeal could not have any useful effect, having regard to the displacement of the trial date by reason of the bringing of the application for leave to appeal. 21. The order, therefore, is that the appeal be dismissed. I order that the appellant pay to the respondent the costs of an incidental to the appeal. I further order that the order that the proceedings in the Magistrates Court be stayed, be discharged. 22. I express the view that this is a proper case where some priority in listing should be given in the Magistrates Court so that the matter can be promptly disposed of, if that is possible. 23. I further order that the costs of and incidental to the appeal are to include the costs thrown away by reason of the vacation of the trial date.