Ballesteros v Chidlow

[1] At the commencement of the trial the defendants applied to amend the defence pursuant to r 375 of the Uniform Civil Procedure Rules ("UCPR"). The amendment was opposed, not on the basis of prejudice to the plaintiff - Mr Grant-Taylor expressly stated that there was none - but rather, it seems, although it is not entirely clear, to gain whatever advantage there might be from deemed admissions. I gave the defendants leave to file a further amended defence with reasons to be published subsequently. Judgment in the proceedings was given on 10 October 2005 and I now give my reasons for allowing the amendments. The facts can be supplemented by the details set out in the substantive judgment.

[2] The plaintiff sustained a musculo-ligamentous strain to her spine from a flexion-extension injury sustained as a seat-belt restrained back seat passenger in a motor vehicle collision on 18 February 2003 at the age of 35. The plaintiff's claim proceeded as a claim under the Motor Accident Insurance Act 1994 ("MAI Act"). She maintained that ongoing disabling symptoms particularly in her neck/shoulder area and lumbar spine were so severe that she was compelled to resign her employment in the Queensland Public Service after attempting work for 6 months post-accident. The plaintiff further contended that by virtue of her injuries and consequent symptoms she was unable to return to work or, at least, full-time work, and would need domestic care and assistance for her lifetime.

[3] The chronology of relevant events for the application to amend is as follows:

05.03.03 Plaintiff serves sec. 37 Notice of Claim on RACQ

07.07.04 Surveillance evidence, including video footage of plaintiff, obtained by RACQ's appointed investigators

19.10.04 Hunt & Hunt ("HH") serve RACQ's Certificate of Readiness upon McInnes Wilson ("MIW")

19.11.04 Plaintiff's claim and statement of claim served on HH

30.11.04 MIW serve HH with plaintiff's statement of loss and damage

17.12.04 HH receive investigators' second report and surveillance video

04.01.05 HH serve MIW with Notice of Intention to Defence and Defence

04.02.05 HH serves defendants' joint List of Documents

18.02.05 Request for Trial Date filed, having been signed by both parties

24.02.05 HH brief Senior Counsel to advise on evidence

22.04.05 Letter MIW to HH requiring disclosure of videos

29.04.05 HH serve MIW with copies of surveillance videos and surveillance reports

[4] Mr Lanyon-Owen, the insurer's solicitor, had sought his client's instructions to undertake covert surveillance of the plaintiff based on the significant disparity between the reports of the medical specialists; the plaintiff's self reporting of serious pain and inability to work as a consequence; and her employment file which suggested that she had resigned her employment for domestic reasons rather than accident related symptoms. Whilst the videos did not show the plaintiff doing anything very active neither did they appear to support the plaintiff's account to the doctors of serious disability.

[5] Copies of all medical reports commissioned by the defence were disclosed to the plaintiff's solicitors prior to the compulsory conference held pursuant to the

MAI Act. The surveillance videos and accompanying reports were not provided. Mr Lanyon-Owen, who was extensively cross-examined by Mr Grant-Taylor, did not disclose that material relying on s 48(3) of the MAI Act which provides:

"If an insurer has reasonable grounds to suspect a claimant of fraud, the insurer may withhold from disclosure under this division information or documentary material (including reports that would, apart from this subsection, have to be disclosed under subsection (2)) to the extent the disclosure would alert the claimant to the discovery of the grounds of suspicion or could help in the furtherance of fraud."

[6] There were reasonable and proper grounds for that suspicion even though, after canvassing matters at trial, it proved not to be the case.

[7] The compulsory conference was not successful and on 19 November 2004 the plaintiff served her claim and statement of claim and shortly after her statement of loss and damage on the defendants' solicitors. The statement of claim, to use

Mr Douglas' expression, is an economical document but typical of a personal injury pleading. Only quantum was in issue and the relevant paragraphs in the statement of claim pertaining thereto are paragraphs 6-9:

"6. As a result of the negligence of the First Defendant and the collision and aftermath occasioned thereby, the Plaintiff sustained personal injuries:

(c) Cervical nerve root stretching and/or thoracic outlet syndrome;

(g) Radiation pain and sensory symptoms in leg attributable to lumbar injury;

(l) Impaired memory and concentration arising from disturbed sleep and chronic pain disorder;

1. On account of her injuries, it was necessary for the Plaintiff to seek and receive medical treatment. She attended the Royal Brisbane Hospital. She has undergone a regime of physiotherapy treatment. She may require further medical treatment in the future. She has been administered analgesics to relieve her pain. Her capacity to participate in many of her former activities have been diminished and impaired.

1. In the premises, the Plaintiff has suffered and continues to suffer and experience pain, inconvenience, discomfort, disability and restriction of movement and the enjoyment and amenities of life, her working ability and her capacity to earn income has been diminished and impaired.

1. The Plaintiff has sustained loss and damage, comprising general and special damages, as a result of the personal injuries she has suffered in consequence of the negligence of the First Defendant in an estimated amount of $454,760.00, calculated on the basis of the cumulative loss and damage of the following:

(a) An amount of not less that $25,000.00 for general damages for pain, suffering and loss of amenities;

(b) An amount of not less than $32,160.00 for past economic loss, calculated at a nett loss of $480.00 per week, for 67 weeks between August 2003 to present.

(c) An amount of not less than $4,100.00 for the past loss of contribution to the Plaintiff's superannuation which would otherwise have been made by her employer pursuant to the Superannuation Guarantee Act, calculated at 12.75% of the claim for past economic loss;

(d) An amount of not less than $272,000.00 for future economic loss and earning capacity, calculated by discounting at 5% per annum a current and continuing rate of loss of $480.00 per week over the remaining 29 years (multiplier 809.7) of the Plaintiff's working like to age 65, and discounted by 30% to reflect some residual earning capacity and for the usual contingencies;

(e) An amount of not less than $35,000 for future loss of contributions to the Plaintiff's superannuation which would otherwise have been made by her employers pursuant to the Superannuation Guarantee Act, calculated at 12.75% of the Plaintiff's claim for future economic loss and impairment of earning capacity;

(f) An amount of not less than $17,000.00 for value of past gratuitous case (sic) and assistance rendered to the Plaintiff to satisfy a need created by her injuries, calculated on the basis of the model advanced by

Mr Hoey (occupational therapist) at a rate of $18.00 per hour for an average of:

(i) 20 hours per week in the 26 weeks during the period 18 February 2003 to August 2003 (when she ceased employment);

(ii) 6 hours per week in the following 67 weeks thereafter during the period August 2003 to present.

(g) An amount of not less than $60,000.00 for the value of future gratuitous care and assistance to be rendered to the Plaintiff, calculated on the basis of a need of 6 hours services per week at a rate of $18/hr for only 30 years (of the Plaintiff's remaining life expectancy of 47 years) and reduced on the 5% tables (multiplier 822) and further discounted by approximately one third for contingencies.

(h) An amount of not less that $2,000.00 in respect of special damages representing medical, travelling, pharmaceutical and other expenses incurred by the Plaintiff to date;

(i) An amount of not less than $7,500.00 representing that expense to which the Plaintiff will be put in the future in respect of future medical treatment, medication, rehabilitative costs and other expenses.

[8] On 24 December 2004 the joint defence was filed and served. It had been drawn and settled by Mr Lanyon-Owen. By paragraph 7 the defendants admitted the plaintiff's bruising and soft tissue injury to her cervical spine and lumbar spine and denied the balance of the injuries on the ground that they were untrue or were naturally occurring degenerative disease. They did not admit "impaired memory and concentration arising from disturbed sleep and chronic pain disorder", "shock and anxiety" the use of "analgesics to relieve her pain" because they had no personal knowledge of these matters and no documentary proof had been provided by the plaintiff's solicitors.

[9] They admitted that the plaintiff had sought medical treatment and undergone physiotherapy but denied the need for further medical treatment. They admitted that she had suffered pain and discomfort and disability etc for a short period following the accident "however these symptoms have improved and the plaintiff will return to functional normality."

[10] By paragraph 11 the defendants denied "as untrue" the balance of paragraph 8 in that the plaintiff's working ability and capacity to earn income "has not been diminished or impaired".

[11] By letter dated 13 January 2005 the plaintiff's solicitors wrote to the defendants' solicitors in these terms:

We note your client has pleaded a number of "non-admissions" in response to allegations made in our client's pleadings.

You will appreciate your client is prevented from giving or calling evidence in relation to the facts which are not admitted (pursuant to Rule 165 UCPR). Our client will be proceeding to trial on that assumption.

Further, we note your client has "non-pleaded" a number of the allegations in our client's Statement of Claim. By virtue of Rule 166 UCPR your client is taken to have admitted the facts to which the "non-pleading" are in response to (because they have not simply denied or "non-admitted" the relevant facts). Again, our client will be proceeding to trial on the basis that the matters which are the subject of a "non-pleading" are taken to have been admitted."

The writer continued that the plaintiff did not wish to see the commencement of the trial "bogged down" in technical arguments as to the adequacy of the pleadings nor to have the trial unnecessarily adjourned. The defendants were invited to consider amending their defence promptly. The defendants did not respond to that letter.

[12] After the request for trial date was signed by both parties on 18 February 2005

Mr Lanyon-Owen received instructions from his client to brief Senior Counsel to advise on evidence and to advise whether the defence required amendment.

Mr Lanyon-Owen said he was confident that the defence which he had drawn was in conformity with the UCPR. Senior Counsel settled an amended defence which was improperly filed on 21 April 2005 and served on the plaintiff's solicitors.

Mr Lanyon-Owen explained that he was quite aware that leave needed to be obtained for filing after the Request for Trial Dates had been filed and, whilst accepting responsibility, indicated that it was done out of his office without express instructions by a zealous junior.

[13] The amended defence was served on the plaintiff's solicitors on 21 April 2005.

The following day those solicitors requested the disclosure of any video or audio recordings not previously disclosed and for which a claim of privilege had not been made. The solicitors warned that should that not occur they would be objecting to the use of the material at trial. Thereafter Drs Morgan and Weidmann on 26 and 27 April respectively confirmed that having viewed the surveillance material they were not disposed to change their reports. Mr Lanyon-Owen, after conferring with counsel, and notwithstanding his suspicion of fraud, caused the plaintiff's solicitors to be provided with a copy of the surveillance videos and reports and copies of memoranda of his conversations with Drs Morgan and Weidmann. In the letter which was sent with the surveillance material the defendant's solicitors indicated that they proposed to save the costs of bringing a separate application for amendment and by seeking amendment at the commencement of the trial. If there were still issues about the amended defence they said the problems should be specifically identified. The solicitors responded that there had been no pleading responsive to the quantum matters asserted in paragraph 9 of the statement of claim. In their further letter of 3 May 2005 they canvassed extensively the failure by the defendants to disclose the surveillance video tape and the further proofs of evidence from Drs Morgan and Weidmann after they had viewed those tapes. It was indicated that there would be an objection to the defendants adducing any evidence arising from that material.

[14] The first amendment to the defence on 21 April 2005 contained the following:

"11A As to the claimed economic loss, the Joint Defendants:-

11A.1 admit that the Plaintiff was off work, and reasonably off work from her employment as an administrative officer, for a period of approximately 28 days following the accident, all of this taken in sick leave to which she was entitled as part of her employment;

11A.2 thereafter the Plaintiff continued in her employment, and in March 2003 gained a promotion therein;

11A.3 on or about 4 August 2004 the Plaintiff separated from her husband and then resigned from her employment, not thereafter returning to any employment;

11A.4 the resignation was wholly causally attributable to her separation and her need and desire to spend time with her children consequent thereon, and to rearrange her personal affairs including accommodation in consequence thereof;

11A.5 but for these last mentioned matters pertaining to her separation, the Plaintiff was capable at all time thereafter of engaging in full time employment of not less than 30 hours per week.

11A.6 the Plaintiff has full physical and mental capacity to engage in full time employment, of the nature in which she previously engaged immediately prior to her accident, if she elects to do so.

11B As to the claim for care, the Joint Defendants:-

11B.1 admit that in the period of about 28 days after the accident the Plaintiff required some services, to the extent of not more than 5 hours per day, but thereafter did not reasonably require such services, nor were they necessary, nor did the need for them arise out of any injury suffered in the motor vehicle accident, but rather arose out of her need for assistance to care for her children and her household and at the same time engage in full time employment;

11B.2 the services she was provided during and after the lastmentioned period of 28 days were services of the same kind which were being provided for the Plaintiff prior to the date of the motor vehicle accident, in her household.

11B.3 in any event the physical symptoms of the Plaintiff after the 28 days were not such as to reasonably require the provision of any services;

11B.4 by reason of the aforesaid matters the Plaintiff is not entitled to recover for any services during or alternatively beyond the period of 28 days after the accident, or such later period as the court may otherwise find such services were provided as were necessary and which so arose, by reason of the provisions of Section 55D of the Motor Accident Insurance Act 1994.

11C The Plaintiff's general damages are to be assessed under the provisions of Section 61 of the Civil Liability Act 2003 and the Regulations thereunder."

[15] The amendment proposed on the morning of the trial, that is 17 May 2005, was as follows:

"10A. The basis for the denials contained in paragraphs 8 and 9 hereof, and the assertion contained in paragraph 10 hereof, are the following:-

10A.1 the opinion evidence contained in the reports of Drs Weidmann (neurosurgeon) and Morgan (orthopaedic surgeon) disclosed in this proceedings;

10A.2 the fact of the plaintiff's return to employment, following the accident, for a lengthy period, namely until 4th August 2003, during which period she received a promotion;

10A.3 the plaintiff's separation from her husband shortly prior to 30th July 2003;

10A.4 The plaintiff's completion and signing on 30th July 2003, of a separation notice from her employer, such document being disclosed in this proceedings, such document identifying marriage breakdown and indebtedness unrelated to the accident, in addition to the circumstances of the accident, as reasons for her resignation;

10A.5 The fact that during the period from no later than mid 2004 to early 2005, the plaintiff discharged her daily domestic and other life activities without suffering any apparent evidence of symptoms consistent with the allegations of disability which she makes in her statement of claim.

11. [The Joint Defendants deny as untrue the remainder of paragraph 8 in that the Plaintiff's working ability and her capacity to earn income has not been diminished or impaired.] (In original defence) The basis for this denial is that which is pleaded in paragraphs 10A and 11A hereof.

13. The Joint Defendants admit the allegations contained in paragraphs 10, 11, 12 and 13 of the statement of claim."

[16] Rule 149 of the UCPR requires that a pleading must be as brief as the nature of the case permits and

"(b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved;

(c) states specifically any matter that if not stated specifically may take another party by surprise ..."

"Without limiting r 149, the following matters must be specifically pleaded ...

(b) every type of damage claimed including, but not limited to, special ... damages ...

Rule 155 requires that if damages are claimed in a pleading the pleading must state the nature and amount of the damages claimed. A party claiming general damages must include the following particulars in the party's pleadings

(b) the exact circumstance in which the loss or damage was suffered;

(c) the basis on which the amount claimed has been worked out or estimated."

[18] As is now well understood, r 166 introduced a change to the practice of pleading.

A party may in response to a pleading "plead a denial, a non-admission, an admission or another matter," r 165, but a party who pleads a non-admission

"... may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party's pleadings,"

[19] Rule 166 dealt in an entirely new way with the affect of denials and non-admissions which had in the past often been responsible for a failure to join issue with the opposite party on the real matters in controversy. Rule 166 now provides relevantly

(a) The party has made inquiries to find out whether the allegation is true or untrue; and

(b) The inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; and

(c) The party remains uncertain as to the truth or falsity of the allegation.

(4) A party's denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or cannot be admitted.

(5) If a party's denial or non-admission of an allegation does not comply with (4) the party is taken to have admitted the allegation.

(6) A party making a non-admission remains obliged to make further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation to amend the pleading appropriately."

[20] The requirement to give "a direct explanation" for a party's belief in the denial or non-admission raises significant difficulties for a pleader. The governing general principle in respect of pleadings set out in r 149(1)(b) that a pleading must contain a statement of all the material facts "but not the evidence by which the facts are to be proved" is in apparent conflict with the "direct explanation" requirement in r 166(4) if it be accepted that "an allegation of fact" in r 166 must be regarded as synonymous with "the material facts" in r 149. The mischief of evasive denials or non-admissions which the rule seeks to remedy is, or was, well-known. Common sense clearly must prevail so that the "direct explanation" must be as brief as is consistent with a statement of material facts but not evidence although I note Helman J's observation in Doelle v Watson of 26 June 2002 at p 14.

[21] Not only need there be an understanding of the difference between material facts and the evidence by which they are to be proved but also material facts and particulars of those facts. Although particulars are part of the pleading and may be struck out for the same reason, r 162, it is a well-established principle of pleading that particulars are not to be pleaded to, Turner v Bulletin Newspaper Pty Ltd [1974] HCA 25; (1974) 131 CLR 69 at 80 per Barwick CJ. His Honour said

"The defendant by not canvassing the particulars does not admit them, nor does he admit their relevance to the establishment of a cause of action or any part of it."

With that in mind para 6 of the statement of claim contained only one material statement of fact and that was that the plaintiff sustained personal injuries as a consequence of the motor vehicle collision. The enumerated injuries, as is the usual fashion in such a pleading, appear as particulars. The longstanding rule of practice that particulars are not to be pleaded to is an answer to any complaint which would seek to apply r 166(5). Even so, there are only three responses to the particulars 8.1, 8.2 and 8.6 which are denials without further elaboration. The other responses sufficiently comply with the requirement of a direct explanation.

[22] The denial as to future medical treatment is in response to the proposition "she may require further medical treatment in the future". This is so vague an assertion as, in my view, to be incapable of detailed response save for a denial.

[23] Paragraph 8 of the statement of claim pleads that the plaintiff has suffered and continues to suffer pain etc and that her working ability and her capacity to earn an income has been diminished and impaired. The defence admits a certain amount of pain, asserts that the symptoms have improved and that the plaintiff will return to functional normality. Paragraph 8 of the statement of claim is sparse of detail that could be described as material facts. The defence is sufficient.

[24] Paragraph 9 of the statement of claim pleads an amount of $454,760.00 as the estimated total of the plaintiff's damages and in sub paras (a)-(i) sets out amounts for various kinds of damages. These are responded to in para 12 of the defence by treating the claim more in the nature of a prayer for relief by not pleading to it except to plead that the amounts claimed are "excessive" and unsupported by any evidence provided by the plaintiff's solicitors. It is clear that such a joinder is non-responsive to the amounts put forward by the plaintiff. The defendants should have advanced more particular reasons for declining to accept the figures that were offered and that has occurred in the amended pleadings.

[25] If it be concluded that the defendants have fallen foul of r 166(4) in respect of the matters pleaded in para 9 of the statement of claim there is good reason to relieve them of any deemed admissions. Mr Lanyon-Owen has deposed to and given sworn oral evidence that he was of the opinion that the pleading complied with the requirements of the UCPR. He is an experienced litigation solicitor. Both firms of solicitors are experienced in personal injuries work. The plaintiff's solicitors would have known that the amounts claimed as damages as set out in para 9 would be subject to challenge. Notwithstanding the correspondence, they do not say that they prepared for trial on the mistaken understanding that the quantum of the various head of damages was not in issue because there were deemed admissions.

[26] As a matter of discretion Mr Grant-Taylor submitted that the court ought not to permit the amendment to the joint defence which elaborated has given a "direct explanation" of the denials and non-admissions as set out above in paras 10A and 11A, because, it would seem of the conduct of the defendants in not disclosing the videos earlier or not making an application to the court not to do so.

[27] Section 51B of the MIA Act requires each party to give to the other party at least seven days before the compulsory conference is held, copies of all documents not yet given to the other party that are relevant to the claim, s 51B(5)(a). This was not done in the case of the surveillance videos and the reports associated with them. Section 51B(8) provides:

"A court may, on application by a party, exempt the party from an obligation to give or disclose material to another party before trial if satisfied that disclosure would alert a person reasonably suspected of fraud to the suspicion or that there is some other good reason why the material should not be disclosed."

[28] Mr Lanyon-Owen said that he had intended that an application be brought pursuant to s 51B(8) but that he proposed delaying doing so until reasonably close to the trial because he was concerned that a search of the file would show that such an application had been made. However, before that time arose he provided the plaintiff's solicitors with the subject material. Although s 51B(8) appears in the provision relating to the compulsory conference, subsection (8) does not mandate an application before the compulsory conference but before the trial. If that provision is read in the context of s 48(3) that an insurer may withhold material if the insurer has reasonable grounds to suspect a claimant of fraud, it would defeat the purpose of non-disclosure, at least in some cases, if the application had to be made before the compulsory conference. Settlement at the conference would obviate the need for an application.

[29] Section 10 of the MAI Regulation which deals with the s 37 Notice of Claim, provides in subsection (8):

"If an insurer withholds information from a claimant, the insurer must inform the commission of the decision, and of the grounds on which it was made, within 1 month after deciding to withhold the information."

[30] Mr Grant-Taylor asked Mr Lanyon-Owen had he informed the commission that he, upon instructions from his client, had withheld the surveillance video and reports. He responded that he had not. In re-examination he was asked if his client, the insurer, had done so, which he was unable to answer but indicated that he doubted if it had. He was of the opinion that s 10(8) referred to the information required to be given pursuant to s 37 rather than generally and that seems a proper construction of that provision.

[31] I should add that Mr Lanyon-Owen was challenged about not pleading fraud but he explained that there was a deal of difference between pleading actual fraud and having the suspicion of fraud in a case like the present.

[32] Mr Grant-Taylor relied on the overall obligation imposed on a party of disclosing documents in the possession of a party set out in rule 214(1). He submitted that the documents ought to have found their way into the list of documents to which privilege from disclosure was claimed. If that were to occur it would defeat the very purpose of s 48(3) of the MAI Act - withholding from disclosure information or documentary material when the insurer has reasonable grounds to suspect a claimant of fraud. That this is so is envisaged in s 58B(8) relating to an application before trial not to disclose material. This is not material which is "privileged" material. It is material which is exempt from disclosure at all.

[33] Finally, Mr Grant-Taylor referred to the decision of Fryberg J in Foreman v Lee and Transport Accident Commission [2005] QSC 086. That was a different case in which, had the pleading been amended as sought, would have led to an adjournment of the trial. The non-admissions (in a personal injuries case) involved non-admissions on the basis of the need to undertake further investigation. His Honour was particularly critical of cost cutting by the insurer in not briefing counsel before the Request for Trial Date had been signed. In this case Mr Lanyon-Owen did address the issues. It was neither carelessness nor a cost cutting which led to the defence being drawn in the way it was. I have found, that apart from the response to the quantum of the heads of damage, the defence in any event complies with the rules. See also discussion by Mackenzie J in Groves v Australian Liquor Hospitality and Miscellaneous Workers' Union [2004] QSC 142 and McMurdo J in Anderson v AON Risk Services Australia Ltd [2004] QSC 049.

[34] It is not entirely clear to me what use Mr Grant-Taylor was seeking to make of the failure to disclose the video or to obtain an order of the court endorsing that course of action. He did not seek to have it precluded from evidence.

[35] The function of pleadings is to state with sufficient clarity the case that must be met, Gould v Mt Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517. The Rules of Court exist to bring that about and r 166(4) in particular has been beneficial in achieving that object. Pleadings define the issues and make clear that which is in issue for proof at trial. Nonetheless, the overriding philosophy of the UCPR set out in r 5 must not be overlooked - "the rules are to be applied with the objective of avoiding ... technicality and facilitating the purpose" of the rules. Nothing was kept from the plaintiff which would surprise her at trial save for the covert surveillance videos and they were provided some three weeks before trial.

[36] As indicated at the outset of the trial, the defendants have leave to amend the joint defence in accordance with the document tendered to the court.