Traeger v Harris
[2010] WADC 88
•13 MAY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: TRAEGER -v- HARRIS [2010] WADC 88
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 13 MAY 2010
DELIVERED : Delivered Extemporaneously on 13 MAY 2010 typed from tape and edited by the Principal Registrar
FILE NO/S: CIV 1276 of 2009
BETWEEN: MICHAEL JOHN TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant
Catchwords:
Application for leave to amend defence
Legislation:
Nil
Result:
Leave granted on terms
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr D R Sands
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Dare v Pulham (1982) 148 CLR 658
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Sinclair v James [1894] 3 Ch 554
Stone James v Pioneer Concrete WA Pty Ltd [1985] WAR 233
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance Limited (2005) 30 WAR 290
PRINCIPAL REGISTRAR GETHING: The application before me is the defendant's application dated 9 May 2010 for leave to amend his defence. The defendant's application is to be determined in the context of a minute dated 13 May 2010 ("Minute") which sets out the amendments now sought in the application. The plaintiff does not oppose amendments to par 4, par 5 and par 6 of the defence. It does oppose the amendments in par 7 and par 8 of the Minute.
The application takes as its context the plaintiff's claim against the defendant for damages for losses from personal injuries suffered in a motor vehicle accident that occurred on or about 8 October 2004. It is clear from the statement of claim that the plaintiff suffered significant injuries as a result of the accident, including a fractured skull.
The action has been listed for trial commencing on 2 August 2010.
In relation to par 7 of the Minute, the objections taken by the plaintiff fall into two categories. The first one is whether the plaintiff knows the case he has to meet if the amendments are allowed. The second is that, as a matter of discretion, I ought not to grant the defendant leave at this late stage to make the amendments.
Relevant law
The starting point when considering an application for leave to amend is that the court will not grant a party leave to make an amendment which does not disclose a reasonable course of action: Sinclair v James [1894] 3 Ch 554 at 557. Neither will the court grant leave to make an amendment which could be struck out as defective on any of the grounds set out in Rules of the Supreme Court O 20, r 19(1)(b) to r 19(1)(d): Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32 at 38. Further, in determining the adequacy of the pleading, it is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658 at 664. A pleading may therefore be struck out where it is vague, ambiguous or pleaded at too greater a level of generality so as to leave the other party in doubt as to how to respond to the pleadings: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.
The current application falls to be determined in the context of the wider case management process as adopted by the District Court. In this regard, Master Newnes, as his Honour then was, in Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24 at par 13 states the following:
"The question of whether a pleading is so defective that it should be struck out is not, therefore, to be answered by any mechanical application of the rules of pleadings. It is generally to be answered by whether or not the pleading serves the fundamental objective of pleadings and whether any significant deficiencies in it can adequately be overcome by the provision of particulars or by some other means. While it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleading is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of the pleading."
History of the application
Paragraph 7 provides in its unamended form (being then numbered par 5):
"Further, if the plaintiff suffered any injury, loss or damage which is denied such injury, loss or damage was caused by the plaintiff's pre‑existing cognitive behavioural condition."
In its amended form, the amended par 7 is as follows:
"Further, if the plaintiff suffered any loss or damage, which is denied, such loss or damage was caused by or contributed to by the plaintiff's pre‑existing cognitive behavioural condition, ADHD, secondary behavioural dysfunction, local hypoperfusion in the left orbito-frontal cortex, multiple sociopathic behavioural traits, bilateral posterior parietal hypoperfusion, depression, alcohol addiction, alcohol and substance abuse, possible Major Depressive Disorder, possible Obsessive Compulsive Disorder and Scheurmann's Disease."
In support of its application, the defendant filed an affidavit by David Roger Sands, his solicitor, sworn 5 May 2010. The affidavit sets out the history of the conferral in relation to the action.
It appears that the issue in relation to par 7 has been live since October 2009. On 15 October 2009, Mr Sands received a request for further and better particulars relating to the allegation of the "pre‑existing cognitive behavioural condition" then pleaded in par 5.
On 4 November 2009, Mr Sands wrote to the plaintiff's solicitors advising that the reference to the pre‑existing cognitive behavioural condition was a summary of the conditions referred to in the medical reports of Doctors Connaughton, Haywood, Marden, Burke, Kay, Fong, Clarkson, Roberts, Cardaci and Ms Mandy Vidovic.
By facsimile dated 5 November 2009, the plaintiff's solicitors advised that they required the defendant to file a response to the plaintiff's request for further and better particulars of the defence in this regard.
In terms of the chronology, the next event is that by facsimile dated 11 February 2010, Mr Sands advised the plaintiff's solicitors that the counsel then retained to act in the matter had returned the brief due to his appointment to this court and that alternate counsel had been engaged.
Following further conferral, the plaintiff's solicitors were provided with a further minute of proposed amended defence on 19 March which is in substantially the same terms as the current par 7 of the Minute.
Does the plaintiff know the case it has to meet?
If the amendment to par 7 is allowed, the issue that the trial judge is going to have to determine is the question of to what extent the plaintiff's current losses and damage were caused, or contributed to by the injuries, subject of the statement of claim, or by pre‑existing conditions. The plaintiff argues that each condition inserted by the proposed amended par 7 should be linked to a particular head of loss or damage.
In answering the question whether or not the plaintiff is able to understand the case he has to meet, the information which the plaintiff is provided as to the case he has to meet is not limited to the pleadings. Significantly, it includes the expert evidence. The defendant has filed an index of expert evidence pursuant to District Court Rules 2005 r 45E. That document sets out the expert's reports he is going to rely on at trial. Leave is required if he is going to rely on any further expert evidence.
It would seem to me that from a combination of the pleadings and the experts' reports that the plaintiff knows the case he has to meet at trial sufficiently to comply with the policy outlined in the decision in Dare v Pulham (supra).
The issue for the trial judge will be a complex one in terms of disentangling the various possible causes of the losses and damage sustained by the plaintiff. In that context, to require the defendant to isolate each individual condition and attribute items of loss or damage seems to be an unreasonable request.
It seems to me that it is sufficient for outlining the scope of the issues to be determined by the trial judge for there to be par 7 in its proposed amended form coupled with expert evidence which elaborates on the issues. And it seems to me that this is sufficient to allow the plaintiff to know the case that he has to meet. I will deal with the issue of discretion at the end of these reasons.
In relation to par 8, par 8 is a new paragraph providing as follows, and I quote:
"Further or in the alternative, if the Plaintiff has sustained loss or damage, which is denied, the Plaintiff has failed to mitigate that loss.
PARTICULARS OF PLAINTIFF'S FAILURE TO MITIGATE:
a)In April 2006 the Defendant arranged for the Plaintiff to undergo an initial vocational assessment.
b)The plaintiff has failed to undertake any further vocational rehabilitation notwithstanding the recommendations of the occupational physicians Dr Peter Connaughton and Dr Andrew Marsden, rehabilitation physician Dr Kim Fong and rehabilitation consultant Steven Parker."
The pleading objection taken to proposed par 8 is that it is insufficiently particularised. For example, it is not apparent what the outcome of the April 2006 initial vocational rehabilitation assessment was.
It seems to me that par 8 does not go as far as it should in advising the plaintiff as to the case it has to meet.
In relation to par 7, the defendant has gone beyond merely referring to the expert's reports, and set out the particular conditions that it seeks to put into consideration in the court process. In my view, a similar exercise ought to be undertaken in relation to par 8. What ought to be done is that the particulars ought to be expanded so that it is clear what happened in relation to the April 2006 arrangement for the plaintiff to undergo an initial vocational rehabilitation assessment. There also ought to be particulars of the specific vocational rehabilitation programs that the defendant says that the plaintiff ought to have undertaken but did not undertake.
Discretion
That then leaves the issue of discretion. The overarching issue in the exercise of discretion to grant leave to amend, in particular at a late stage, is to balance the competing risk of injustice in the context of maintaining public confidence in the legal system as a whole.
Four factors emerge from the decided cases:
(a)the reasons for making a delay in the application;
(b)the prejudice to the defendant if leave is not granted;
(c)the prejudice to the plaintiff if leave is granted; and
(d)the impact on the public interest if leave is granted.
The authorities for these factors relevantly include: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; Wiltrading (WA) Pty Ltd v Lumley General Insurance Limited (2005) 30 WAR 290; and Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323.
I turn first to the reasons for delay in making the application. As I have indicated from the affidavit of Mr Sands, it seems conferral in relation to this application began in around October 2009 with the plaintiff's request for further and better particulars, and then ended in the present application. To the extent that there is an explanation for the delay it is due to a change in counsel. The reasons for the delay do not provide any compelling reason to grant the application.
In relation to the prejudice to the defendant if leave is not granted, the prejudice is that the defendant will not be able to present his case at its strongest at the trial. It may go further than that in the sense that the judge will be left with a vague and general statement of the defendant's case where it is clear that the evidence to be adduced by the parties will inevitably be more detailed in relation to the specific behavioural conditions or alternate causes of the loss and damage which the plaintiff has suffered.
Where the proposed amendments do not extend in any material way, the factual ambit of the action, this will be a factor weighing in favour of the grant of leave: Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156 at [121]. It will also be a factor in favour of the amendment if it will enable the litigation to be fought out on the true facts: Stone James v Pioneer Concrete WA Pty Ltd [1985] WAR 233 at 241.
In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 weight was given to the fact that the points sought to be raised by the amended pleading could not be avoided at trial as the issue was apparent on the fact of certain documents (see also Aon (supra) [28]). It seems to me that those factors together weigh strongly in favour of the leave being granted.
The third factor is the prejudice to the plaintiff if leave is granted. The plaintiff raised the argument that the grant of leave may prejudice the trial coming up in this action in August. In my view, that risk of prejudice is hypothetical, and the evidence before me ought not to be given much in the way of weight. A particular factor here is that the issues identified by the plaintiff in proposed par 7 are evidence from the existing suit of medical reports and so have been issues in the contemplation of the parties to date.
It would seem to me that to the extent that there is a need to obtain additional evidence, that the three-month time period we have between now and the commencement of the trial is sufficient time for that. Having said that, a condition of the grant of leave would be to allow the plaintiff to file additional expert's reports dealing with this particular issue in addition to those already set out in their index filed pursuant to 2005 DCR r 45E.
The final issue is the public interest. As I have already noted, I cannot see a real risk that allowing the amendments will prejudice the trial. The fact that allowing amendments may prejudice the trial dates was a significant factor in both JL Holdings (supra) and Aon. It would seem to me that, if anything, the conduct of the trial is likely to be enhanced by these amendments because they more closely and specifically align the pleadings with the medical evidence that the parties intend to file in the action.
On that basis, on balance, it seems to me that the plaintiff's application ought to be allowed in relation to pars 4, 5, 6 and 7.
In relation to par 8, the amendment in principle in the par 8 is one I am prepared to allow; however, it needs to have further particularisation.
I will hear from counsel in relation to the orders that ought to be made.
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