Covington-Thomas v Commonwealth of Australia

• 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21243/95 Peter Norman Covington-Thomas v Commonwealth of Australia

JUDGMENT 1 DOWD J: By Notice of Motion filed on behalf of the Plaintiff on 2 June 2003 (the "Amendment Motion"), application was made to the Court for leave to amend the Statement of Claim filed on 29 November 1995 commencing these proceedings. The relief sought in the Amendment Motion is as follows: "…1. THAT the Plaintiff be given leave to file and an (sic) amended Statement of Claim herein…". 2 A further Notice of Motion filed by the Plaintiff, also on 2 June 2003, sought orders extending the time for the Plaintiff to file an Amended Statement of Claim (the "Extension Motion"), which application was subsequently withdrawn by the Plaintiff. I consequently made orders on 3 July 2003 that the Extension Motion be dismissed, with the Plaintiff to pay the costs of that application. 3 I note that certain orders were made in this matter on 3 February 2000 by Harrison M as to the Plaintiff's then application for an extension of time in which to commence these proceedings. Given thereby that the Plaintiff was granted an extension of time within which to commence these proceedings up to and including 29 November 1995, should the Plaintiff be successful in securing leave to amend his claim, such amendment would have effect from the date of the commencement of the proceedings, notwithstanding that the relevant limitation period would otherwise have expired (see Baldry v. Jackson [1976] 2 NSWLR 415 at 419 and Pt20 r4(5) SCR). 4 The Amendment Motion was heard before the Court initially on 16, 17 and 18 June 2003, with further hearing dates in July, August, September and October 2003. I reserved my judgment on 18 December 2003, following further hearing of the amendment application. Thereafter, submissions of counsel for both parties were provided to the Court, the last received at the end of May 2004.

5 The Plaintiff's claim arises from injuries said to have been sustained as a result of the collision on 10 February 1964 of the destroyer HMAS Voyager and the aircraft carrier HMAS Melbourne, of which vessel the Plaintiff was then serving as the bowman on the Admiral's barge. At the time of the collision, the Plaintiff was in the forward cafeteria of the Melbourne. Following the piped order of "All hands to emergency stations", he was the first to the boat base. The Plaintiff undertook duties crewing the barge throughout many hours following the collision, assisting with the removal of survivors of the Voyager, and locating and identifying the dead. 6 These duties were performed at sea in conditions which were very difficult, due not only to the badly damaged vessels but due to the heavy seas and the distress and confusion of the events, including the tragic loss of life and the occasioning of significant injuries to many of the survivors, much of which was apparent to the Plaintiff in what he saw and heard during the course of that evening and into the early hours of the next morning.

7 As was outlined in the affidavit of James Taylor sworn 10 July 2003 filed on behalf of the Plaintiff, the first pleading in the matter was filed in November 1995 "…as soon as initial instructions were received…" and set out particulars of the Plaintiff's injuries, as follows: "…the Plaintiff has suffered pain, suffering, shock and loss of enjoyment of life. Further particulars of injuries will be supplied prior to trial…".

8 Particulars of alleged special damage and loss of earning capacity were also set out in the Statement of Claim. 9 Nonetheless, the Plaintiff's claim was solely for "Damages", as set out in the Statement of Claim, omitting other usual prayers such as interest and costs. 10 The amendments sought to be made to the Statement of Claim are extensive. At the hearing before me on 19 August 2003, Senior Counsel for the Plaintiff Mr Melick SC submitted that the prayers set out in paragraphs 7 to 10 inclusive of the then proposed amended pleading (the "Proposed Amended Statement of Claim") were intended not as pleading a new cause of action, but intended only as particulars or evidence of an alleged exacerbation of the Plaintiff's original injuries. 11 However, as I noted in my judgment of 19 August 2003: "…it is clear that it is necessary for a new pleading to come into existence to reflect the facts that the exacerbation referred to in para 7 of the statement of claim is in fact an additional particular or a further aspect of the original cause of action rather than, as presently framed, a new cause of action to which additional criteria applied…".

12 The Plaintiff was thereafter directed to file a proposed further amended pleading (the "Proposed Further Amended Statement of Claim"), which (following a series of changed versions) was served on the Defendant's solicitors under cover of a letter dated 14 October 2003 from the Plaintiff's solicitors. 13 At the subsequent hearing before me on 18 December 2003, it was further submitted on behalf of the Plaintiff that the amendments sought to be made arise from information made known to the Plaintiff as a result of documents being uncovered from files held by the Defendant, some of which were from related proceedings which have been ongoing for many years. 14 In written submissions relied upon by counsel for the Plaintiff provided to the Court in August 2003, it was said that the proposed amendments ought be allowed as they are prayers for "…damage suffered …at least substantially identical with and overlapping with that already claimed in the proceedings…", in accordance with the Statement of Claim filed in November 1995. 15 The Proposed Further Amended Statement of Claim nonetheless remains in a form which in many respects is not satisfactory, either in its requirement under Pt15 SCR (and in particular Pt15 r7 that facts, not evidence be pleaded in the statement of claim), its failure to maintain a plea for costs against the Defendant and in the difficulties likely to arise for the Court at the eventual hearing of the matter by the lack of clarity attaching to the Proposed Further Amended Statement of Claim. Not only as a matter of common sense, or as a matter of courtesy to the Court in having to determine a complex and difficult claim at the hearing of this matter, but as required under Pt20 r1(2) SCR, all necessary amendments should be made to the Plaintiff's claim as pleaded "…for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings…". 16 It is open to the Court, particularly under Pt 20 r1 SCR to require pleadings to be amended and somewhat to intervene and effectively draw the pleadings in the matter; it may be the case that the occasional heat which has been generated in the involvement of the legal practitioners preparing this pleading reflects the effort and pressure they have laboured under for this long and complex matter, a position likely to benefit from some independent review. However, to have the matter listed for hearing before the Court bearing pleadings which do not succinctly, nor comprehensively and accurately reflect the nature and extent of the Plaintiff's claim is to reflect poorly upon the difficult circumstances in which the Plaintiff found himself at sea on that terrible night in 1964 and the difficult circumstances he has had to face in bringing his claim. 17 Although I have noted in Court in December 2003 that the Proposed Further Amended Statement of Claim fails, in paragraph 6, to plead that the Plaintiff has suffered pain, suffering, shock and loss or enjoyment of life and might otherwise continue to suggest amendments to the pleading, to do so is an extremely costly method of ensuring the Plaintiff's claim (and thereafter the Defendant's defence to such claim) is set out in a manner which raises the "real questions" for this hearing. 18 In the consideration of whether any pleading might be amended, the Court must have regard not only to any hardship occasioned to the Plaintiff in refusing the application, but the likely prejudice occasioned to the Defendant in allowing the amendment. In the exercise of the discretion of the Court, all relevant circumstances are to be taken into consideration and weighed appropriately. 19 As was submitted on behalf of the Defendant, the Proposed Further Amended Statement of Claim "…is still defective…", on the following grounds:

a) the pleading is embarrassing; b) the pleading is deficient in paragraph 10; c) aggravated damages cannot be claimed for alleged negligently inflicted psychiatric injury (in paragraph 10); and

d) aggravated and exemplary damages as claimed cannot be established by the matters claimed and particularised in paragraphs 10 and 11 of the Proposed Further Amended Statement of Claim.

20 The Defendant submitted that the Proposed Further Amended Statement of Claim was embarrassing, on the basis (in summary) that:

(a) although denied by the Plaintiff, the second part of the new document does plead a new cause of action; and

(b) the Plaintiff "…should embark on a wholesale revision of the pleading..".

21 For reasons which I set out below, I agree that the pleading to be relied upon by the Plaintiff and answered by the Defendant should again be the subject of reconsideration, principally to assist the Court in identifying and considering the matters to be determined at the hearing of this claim. 22 Whether or not the Proposed Further Amended Statement of Claim creates a new cause of action not earlier pleaded by the Plaintiff might only become apparent once the evidence in this matter has been adduced and tested or may be further amended before hearing. 23 Further, if the Proposed Further Amended Statement of Claim does not create a new cause of action, in my view the Court will nevertheless benefit from a pleading document which is more succinct, and more comprehensive and accurate than is presently being offered. 24 Whilst I do not consider that the Proposed Further Amended Statement of Claim is embarrassing in a pleading sense, it is not generally a document I consider to be sufficient and therefore, requires further steps to be taken by the Plaintiff, as set out below, to more appropriately elucidate his claim.

25 The Defendant submits that the Proposed Further Amended Statement of Claim should not be filed as it confuses or fails to distinguish between "…the two distinct legal concepts of aggravation and aggravated damages…", as set out in paragraph 10 thereof. 26 I agree that the pleading made there in paragraph 10, which refers back to the much more extensive paragraph 9 of the Proposed Further Amended Statement of Claim together might be drawn in terms more succinct, and more comprehensive and accurate than the present document. In so doing in the terms I set out below, in my view the Court will have the benefit of a pleading document which sets out clearly the appropriate matters for its consideration at the hearing of the Plaintiff's claim.

27 In part derived from the determination of the Court of Appeal in the matter of Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 in which a decision of my own at first instance was overruled by the Court on the question of aggravated damages, the Defendant submits that "…aggravated damages cannot be claimed for alleged negligently inflicted psychiatric injury (in paragraph 10)…" and therefore leave should not be granted to the Plaintiff to file the Proposed Further Amended Statement of Claim. 28 The relevant passage in Marchlewski is found beginning at paragraph 110, per Mason P (with whom Stein JA and Heydon JA, as the latter then was agreed) following a thorough outline of various decisions and commentaries on the question or an award of aggravated damages in personal injury claims, as follows:

110. The upshot is that I find no clear guidance in Australian case law on the broad question whether aggravated damages are capable of being awarded in a negligence action. In point of principle, I seriously doubt the need to engraft an award of aggravated damages upon a negligence claim. Compensatory damages would normally include damages for mental distress or injured feelings so long as they can be linked to the tort through existing principles of causation and remoteness of damage. To speak of aggravated damages as a separate component can only have the capacity to confuse and run the risk as to double compensation (cf Clerk & Lindsell on Torts , 17th ed p 1498, O'Reilly v Hausler (1987) 6 MVR 344] at 346).

…. 112 The appellant's challenge in point of principle raised two subsidiary issues which I shall state in the context of the specific case: s to what extent was the claim for aggravated damages controlled by reason of the claim lying within a specific field of the law of negligence, ie that relating to psychiatric injury ("nervous shock"?) s ...

117 In my view, it follows that to allow an award of aggravated damages in a claim for negligently inflicted pure psychiatric injury would put back what the specific law relating to "nervous shock" precludes. This would fracture the symmetry of tort law in this area of discourse. Ina field where policy and precedent preclude or limit compensation for mental distress or injured feelings, policy and precedent ought not be trumped by an appeal for aggravated damages.

121 The awards for aggravated damages should be set aside."

29 As I noted in the hearing of this matter on 18 December 2004 following submissions of Mr Dicker for the Defendant, in light of the decision of Mason P in Marchlewski (supra), I would not hold that aggravated damages are available for alleged negligently inflicted psychiatric injury. 30 I have not been persuaded otherwise by any authority that aggravated damages might not otherwise so be awarded. Therefore, at the hearing of the Plaintiff's claim, it may be that any basis for aggravated damages being so awarded cannot be established or if established as alleged, cannot be awarded as a matter of law. 31 However, given that there is no clear authority on point other than in relation to nervous shock, it appears to me that this is a matter which, if pleaded, may be considered by the Court when weighing the available evidence and appropriate submissions of counsel at the hearing of the Plaintiff's claim. It does not appear to me that to maintain such a pleading, the Proposed Further Amended Statement of Claim is embarrassing. Therefore, this may be a matter which properly falls for consideration by the Court in due course. Whether such pleading is then struck out, or cannot be sustained by the available evidence, or cannot be awarded as a matter of law will be then determined in the proceedings. This is particularly so given the argument made by the Plaintiff that the claim is for not only psychiatric injury, but a physical manifestation of the damages allegedly suffered by the Plaintiff, matters which will be more fully elucidated at the hearing, but at this stage have a degree of obscurity. 32 Additionally however, I consider that the present pleading is not necessarily the most succinct, nor comprehensive and accurate document and warrants in my view a further consideration, in the manner I will outline more fully below.

33 Further, the Defendant submitted that "…aggravated and exemplary damages as claimed cannot be established by the matters claimed and particularised in paragraphs 10 and 11 of the Proposed Further Amended Statement of Claim….". 34 Until oral submissions made on 18 December 2004, the Plaintiff's claim included a claim for aggravated damages which was withdrawn by counsel, said to be as a result of counsel's research and subsequently counsel's instructions at that time. 35 Whilst I am therefore in the position that I need not decide the question of whether leave ought be granted to the Plaintiff to file an amended pleading which includes a claim for aggravated damages, as it is a matter which was withdrawn by the Plaintiff and therefore has not yet been made the subject of any determination by this Court; it may be that an appropriately framed claim for aggravation other than for nervous shock might nonetheless be included, if this be the Plaintiff's instructions, in any subsequent pleading of the nature to which I have referred below and therefore become a matter for the trial judge at the hearing or at some earlier stage. Of the likely evidence to be adduced, it seems to me to cause no further hardship for the Plaintiff, nor prejudice for the Defendant, in evidence being adduced going to matters of aggravated damages as much as matters of damages generally, if the Plaintiff so intends to plead his cause of action in this manner. 36 If the question of aggravated damages being available or not available has not been decided for plaintiffs in the position of Mr Covington-Thomas, then it may be that such a matter ought be one which is brought before the Court at the hearing to ensure, in accordance with Pt20 r1(2) SCR that the "…real questions raised by or otherwise depending on the proceedings [and] avoiding multiplicity of proceedings…" are considered by the Court. 37 It was further submitted that the question of exemplary damages as pleaded should not be the subject of any order granting the amendment, as there is no conduct on the part of the Defendant which could give rise to exemplary damages, that any such prayer would be the subject of an order that it be struck out and that therefore, such a prayer ought not be allowed as it is so clear on the face of the pleading that exemplary damages will not be awarded. 38 It is clearly the position that mere human fallibility is not sufficient by which to ground a claim for exemplary damages and the Plaintiff to date has not set out relevant particulars of any claim for exemplary damages, and in the circumstances of the case should not be allowed as being embarrassing as a matter of reading. However, subject to the orders I make as to the further course of the pleadings in this matter, which should ensure that all relevant matters are more clearly and comprehensively set out for the Court, I propose to allow the Plaintiff to file the Proposed Further Amended Statement of Claim. 39 In consideration of all the matters before me and noting that this is an interlocutory application made at a time when it appears further evidence is to be sought and thereafter adduced as to the basis and quantum of damages claimed by the Plaintiff, it is clear that the hearing of this matter set down for two weeks beginning in early June 2003 could not have proceeded on the Statement of Claim filed by the Plaintiff in November 1995, to which the Defendant had filed an appropriate defence and for which the Plaintiff had supplied relevant particulars under Pt33 r8A SCR, filed on 3 October 2002. 40 In my view the matter should not proceed without the fullest possible elucidation of the Plaintiff's claim, for which I do not consider that the Proposed Further Amended Statement of Claim is sufficient. However, although defective in some matters, that pleading goes a long way in setting out many of the matters to which the Court must have regard at the hearing. 41 I therefore propose to grant leave to the Plaintiff to file the Proposed Further Amended Statement of Claim, to be entitled the "Amended Statement of Claim" on the basis of the following conditions:

1. to compliment the Proposed Further Statement of Claim, on or before twenty-eight days of the date of this order the Plaintiff is to file and serve Points of Claim setting out succinctly, and in a comprehensive and adequate manner, limited to short sentences or phrases expressed in point form all matters being claimed by the Plaintiff in these proceedings;
2. the said Points of Claim are not intended to replace a formal pleading in this matter and therefore, are not made in accordance with Pt15 R2 SCR;
3. the said Points of Claim should set out matters omitted from the Proposed Amended Statement of Claim (such as the points concerning paragraph 6 noted by me in Court on 19th December 2003, the question of whether or not the Plaintiff is pursuing a claim for aggravated damages and a claim for costs against the Defendant);

4. within twenty-eight days from the date of service of the Points of Claim, the Defendant is to file and serve any Amended Defence in reply to the Proposed Further Amended Statement of Claim;
5. within twenty-eight days from the date of service of the Points of Claim, the Defendant is to file and serve its Points of Defence, again not intended to replace a formal pleading.

42 During the course of the proceedings before me, I have already made several orders as to the formation of the Plaintiff's case and have made orders for certain costs to be paid by the Plaintiff. I have reserved costs in respect of certain hearing dates which must now be addressed, as follows: (a) Hearing listed for two weeks beginning Monday 23 June 2003 and ending Friday, 4 July 2003, which hearing was vacated by Orders made 18 June 2003; (b) Friday, 19 September 2003 (adjournment sought by Plaintiff, on the basis that it had only lately received submissions of the Defendant as to certain matters set out in the Proposed Amended Statement of Claim, at which time I noted that I would take some persuading not to award costs against the Plaintiff, whose solicitor was aware of the matter being listed on that occasion); (c) Friday, 24 October 2003 (on which occasion counsel for the Defendant was not available and the matter was adjourned); and (d) Thursday, 18 December 2003, on which day judgment was reserved.

43 There are other hearing days (such as 3 July 2003) on which occasions the question of costs was not reserved, but for which the costs order made in this judgment on the question of the Amendment Motion shall apply. 44 I am conscious that whilst the Defendant has been principally successful in the arguments it has raised, although not always for the reasons it proffered, the Plaintiff is successful in being allowed to file the Proposed Further Amended Statement of Claim, after a significant amount of time and effort on the part of his legal advisors, with the benefit of argument advance on behalf of the Defendant and consideration by the Court as to the terms of some of the prayers made in the pleading. 45 However, the Plaintiff should nevertheless bear the costs of the application which was made to bring an amended pleading, principally because of the expansive manner in which the application was brought and continued. The difficulty of course is that some of the steps taken reflect not necessarily upon the Plaintiff, but upon the steps which were taken by his legal advisors. 46 As the application for vacating the hearing listed for two weeks beginning 23 June 2003 was made shortly before that hearing, at a time when preparation for the hearing would have been well advanced, the Defendant should have its costs thrown away by the vacating of that hearing, particularly as at the time the Court listed the matter for that hearing, the issues discussed in this judgment ought to have been known to the Plaintiff. 47 I therefore make the following orders as to costs in this matter: i. Plaintiff to bear the costs thrown away for the adjournment of the hearing listed for two weeks beginning Monday 23 June 2003 and ending Friday, 4 July 2003, which hearing was vacated by Orders made 18 June 2003; ii. Plaintiff to pay the Defendant's costs of and incidental to the hearing on Monday, 16 June and Tuesday, 17 June 2003; iii. Plaintiff to pay the Defendant's costs of and incidental to the hearing on Friday, 19 September 2003; iv. Defendant to pay the Plaintiff's costs of and incidental to the hearing on Friday, 24 October 2003; v. Plaintiff to pay the Defendant's costs of and incidental to the hearing on Thursday, 18 December 2003; vi. Plaintiff to pay the Defendant's costs of and incidental to the Amendment Motion not otherwise addressed. *********

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