PRACTICE AND PROCEDURE - pleading - particulars - amendment - power to amend particulars - when particulars should be amended - amendments permitted.

Court Procedures Rules 2006 (ACT), rr 1303, 503, 432, pt 2.14

Helmhout v Apostoloff and Ors [2011] ACTSC 2

Beach Petroleum NL and Anor v Johnson and Ors (1991) 105 ALR 456

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237

Barclay Mowlem Constructions Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Macmahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271

Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167

US Fidelity & Guaranty Co v Boland [1957] OWN 237

Bruce v Odhams Press Ltd [1936] 1 KB 697

Weldon v Neal (1887) 19 QBD 394

Golski v Kirk (1987) 14 FCR 143

Meredith v Commonwealth of Australia [2009] ACTSC 168

Brickfield Properties Ltd v Newton [1971] 1 WLR 862

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437

Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99

Katsilis v Broken Hill Pty Co Ltd (1978) 52 ALJR 189

Walmsley SL, SC, DCJ, Abadee, A and Zipser, B, Professional Liability in Australia (Lawbook Co: Sydney, 2007) 2nd edition, pp 985-7

Young, PW, Keller HDH, Walton, M (eds) Court Forms, Precedents and Pleadings New South Wales, (LexisNexis Butterworths: Sydney, 2003) looseleaf, p 60,131

Blain, W, Lord Brennan, Jacob, J, Langstaff, J (eds) Bullens Leake and Jacobs Precedents of Pleadings (Sweet & Maxwell: London, 2008) 16th edition, pp 1407-8

Seaman, PL Supreme Court Practice Western Australia (LexisNexis Butterworths:

**1. Subject to orders 2 and 3, the plaintiff have leave to amend the Amended Statement of Claim in accordance with the draft attached to the Application in Proceedings filed on 30 November 2009 and heard on 30 August 2010.

2. The plaintiff not be permitted to amend the Amended Statement of Claim by including new paragraphs 13(A), 20(A) and 31(A) in the draft attached to the Application in Proceedings filed on 30 November 2009 as heard on 30 August 2010.

3. The plaintiff have leave to amend the Amended Statement of Claim to plead material facts alleging negligence by the first defendant, through its servants or agents, in respect of the period from 15 May to 21 June 2000 provided it is pleaded by alleging only material facts and by particularising the way it is alleged the negligence arises.

4. The plaintiff file and serve a copy of the Further Amended Statement of Claim on or before 27 April 2011.

5. The plaintiff pay the defendants' costs of and occasioned by the amendment, such costs not to be assessed or payable until judgment in these proceedings or other order.

6. The defendants have leave to seek directions at the trial as to the costs payable under order 5.**

**1. The trial of the plaintiff's claim in these proceedings for damages, said to be caused by the negligence for which the defendants were alleged to be responsible, commenced on 1 July 2009 but on 2 July 2009 was adjourned because the plaintiff wished to amend his amended statement of claim (for the original statement of claim had earlier been amended). The proceedings were, however, not part heard.

2. For reasons that are unexplained, and for which I can hold no-one responsible, the application for an order permitting the plaintiff to amend the amended statement of claim did not come on for hearing until 30 August 2010. At that time, a new hearing date of the trial had been set for 21 February 2011.

3. For that reason, Mr D Higgs SC, with whom Mr Watts appeared for the defendant, urged me to decide the issue urgently, preferably before the end of October. Pressure of the court's business and some difficulties in conceptualising the issue I have to decide in the circumstances noted below have made that impossible. The prejudice to the parties from that delay will, however, not eventuate because, for other reasons, the hearing of the trial has had to be adjourned to 4 October 2011.

4. Nevertheless, any delay is regrettable and any prejudice should be minimised as best as can be managed.

5. The plaintiff was injured in a motor vehicle accident which happened on 4 April 1996. As a result of the accident, the plaintiff was rendered a T5 paraplegic, confined to a wheelchair. He commenced proceedings for damages for these injuries.

6. After his initial treatment, he returned to Canberra and was assisted in his medical care by the ACT Community Nursing Service, conducted by the first defendant.

7. That care had, inter alia, to be directed at the need for the avoidance of what might colloquially be described as pressure sores, which can become pressure ulcers. Such sores and ulcers develop because of the lack of movement and feeling of a person who has become paraplegic.

8. The plaintiff continued under the care of his general practitioner, Dr S Jamieson, and the Nursing Service.

9. It appears that, on 2 May 2000, the plaintiff was hospitalised and treated for a large left ischial ulcer and remained there until 15 May 2000.

10. Despite that, his claim for damages for the injuries sustained in the accident was settled on 10 May 2000; he was temporarily discharged from hospital for at least that day to effect that settlement.

11. It appears that in November or December 2000, the second defendant was consulted by the plaintiff and commenced to treat him. On 27 May 2002, the plaintiff was admitted to hospital under the care of, inter alia, the second defendant who performed a skin graft to an ulcer on the plaintiff's left leg.

12. The plaintiff commenced these proceedings on 20 June 2005. In them, the plaintiff alleges that the treatment provided by the second defendant was negligently given and that he has suffered injuries as a result of this negligence.

13. In addition, he claimed that he suffered from pressure ulcers, ultimately requiring surgical intervention, which he said was caused by the negligent care provided by the Nursing Service for whom the first defendant was responsible.

14. The Amended Statement of Claim could not be said to be the finest example of the pleader's art. It is a mixture of material facts, particulars and evidence, though the causes of action can be discerned. The precise parameters are problematic though. Neither of the defendants challenged the Amended Statement of Claim, however, to suggest it was embarrassing and did not comply with the rules of pleading, though arguably that was the position.

15. While there is a school of thought that encourages something like this type of pleading (see Helmhout v Apostoloff and Ors [2011] ACTSC 2 (at [87])) it has the disadvantage that when challenges are made to amendments sought to a pleading which does not comply with the rules of pleading, as here, there may be an argument about what standards should apply or how the courts should apply them.

16. The original statement of claim was amended on 13 April 2007 to add four additional particulars of negligence in respect of the claim against the second defendant. I shall refer to the statement of claim as amended as the Amended Statement of Claim. It is that document which is now sought to be amended.

17. A large number of requests for particulars of the statement of claim was sought. The first defendant sought particulars on the following occasions, the particulars being supplied as noted:

18. The second defendant sought particulars by letter dated 28 September 2005 and these were supplied by letter dated 30 January 2006. He sought further particulars by letter dated 9 March 2006, which may have been supplied in the Amended Statement of Particulars but which I cannot otherwise identify as having been supplied.

19. The second defendant's solicitors sought particulars of treatment expenses on behalf of both defendants by letter dated 21 May 2008, such particulars being provided by letter dated 25 June 2008.

20. On 12 May 2009, the solicitors for the second defendant sought further particulars which were the subject of an oral application to the trial judge on 2 June 2009. Those particulars were supplied by letter dated 24 June 2009.

21. Accepting that, for example, particulars of damage will change over time, and, while none of the parties seemed to object to this approach, the drip-feeding of particulars in this way is hardly to be encouraged. The purpose of particulars, which I addressed in detail in Helmhout v Apostoloff and Ors, means that the pre-trial preparation of a case is guided by the identification of issues and the narrowing of them that the particulars provide and such a "moving feast" makes this difficult. It also makes it difficult when the trial judge is faced with sixteen or more documents some of which are, on inspection, not completely consistent and which need to be not only perused but integrated with the statement of claim to provide an understanding of the issues and a delineation of the limits of the evidence admissible at the hearing.

22. It is to be hoped that the particulars will be consolidated before trial so that the court does not have to trawl through the sixteen documents to understand the case, conduct the trial and construct the judgment.

23. It has to be accepted that there is a contemporary tendency to permit particulars to feature more often and extensively in pleadings and to extend a greater latitude in this regard. As von Doussa J said (at 466) in Beach Petroleum NL and Anor v Johnson and Ors (1991) 105 ALR 456:**

A strict distinction between material facts and particulars has tended to become more obscured as the years have gone by. The tendency now is towards narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the court and to the parties the nature of the opposing cases in complex matters. The distinction has been further blurred in South Australia by the Supreme Court Rules 1987 (SA) which provide that particulars form part of the pleadings: rr 46.04(f) and 46.16(2). Technical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past. Nevertheless the pleadings, including particulars stated therein, must be adequate to disclose the case which the opposing party must meet at trial, and to disclose a reasonable cause of action.

**24. It is to be noted that his Honour still confirmed that the pleading must disclose a cause of action and, further, his Honour referred to particulars, not the pleading of evidence.

25. Until the rise of court supervised case management, the pre-trial conduct of litigation was largely in the unconstrained hands of the parties who only sought the assistance of the court if a dispute arose about how some issue should be resolved. Now the court is expected to be more conscious of "case management considerations and questions of proper use of court resources": Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon), per French CJ (at 182 [6]).

26. Despite this, the court is still generally constrained in that the occasion for case management does not usually arise in the ordinary course (except in Category C matters - see r 1303 of the Court Procedures Rules 2006 (ACT) (the Rules)) and so the court does not always have the opportunity to engage in case management unless the parties list the matter for directions (as under Pt 2.14 of the Rules).

27. This means that the parties can largely determine the leeway that is given and permitted in deviation from the strict application of the Rules. Thus, as Mr Higgs SC commented:**

... it is fine that these cases proceed by reference to pleadings that do mix strict pleadings with particulars but that's simply the modern way and it's been going on for many years now ...

**28. There is, however, no want of precedent for appropriate pleadings. Helpful precedents of the correct application of the rules of pleading in cases such as this are to be found in Walmsley SL, SC DCJ, Abadee, A and Zipser, B, Professional Liability in Australia (Lawbook Co: Sydney, 2007) 2nd edition, pp 985-7; Young, PW, Keller, HDH, Walton, M (eds) Court Forms, Precedents and Pleadings New South Wales, (LexisNexis Butterworths: Sydney, 2003) looseleaf, p 60,131; Blain, W, Lord Brennan, Jacob, J, Langstaff, J (eds) Bullens Leake and Jacobs Precedents of Pleadings (Sweet & Maxwell: London, 2008) 16th edition, pp 1407-8.

29. I am also conscious that there is current precedent for striking out a statement of claim in circumstances where it has substantially failed to comply with the rules of pleading. See Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237 (esp at [26], [31] to [45]). It is fair to say, however, that in this case, the necessary material facts are pleaded and from which one can generally discern what is the case that the plaintiff seeks to make, despite the addition of much evidence and particulars. As will appear below, however, the relevance of much of this additional material is problematic.

30. I am also conscious of what is described as the "contemporary purpose of pleadings", exemplified in what fell from Martin CJ in Barclay Mowlem Constructions Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (at [4] to [8]):**

1. It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
2. In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; first, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; second, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; third, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourth, the exchange of chronologies; and fifth, the exchange of written submissions.
3. Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
4. In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
5. Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.

28. This does not mean that the rules of pleading should be ignored. Indeed, in Macmahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271, Templeman J noted that the above decision, and other like decisions of that court, including the Full Court, were not inconsistent with what was stated in the practice book, Seaman, PL Supreme Court Practice Western Australia (LexisNexis Butterworths: Sydney, 1990), looseleaf, at [20.0.3]:

Clients whose lawyers treat pleadings as a formality will be ill-served. Applications to strike out pleadings as failing to disclose a reasonable cause of action frequently involve an exploration of the limits of the substantive law. Pleadings are the backbone of civil litigation and are not merely formal ... and they play an essential part in civil actions, so to shrug off a criticism as a mere pleading point is bad law and bad practice ... This is because a trial is not at large but of the issues joined by the pleadings ... (citations omitted).

**31. This approach has led, in Western Australia, to a new procedure, actively discouraging interlocutory disputes and providing the court with a power to order the parties to endeavour to resolve the disputes themselves. In the case of pleading disputes, this has led to orders for the parties to confer with a view to identifying a list of issues that require to be adjudicated. See, for example, Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 (at [34]). It may be observed that, of course, the purpose of pleadings themselves is to identify the issues on which the court is called to adjudicate. If that is done properly, such a procedure may not be necessary.

32. This general approach of judicial restraint is not necessarily new or limited to Western Australia. As long ago as 1957, Master Peppiatt in the Ontario High Court, in US Fidelity & Guaranty Co v Boland [1957] OWN 237 said (at 238):**

As I read the law, the pleading of unnecessary matter or excessive verbosity in a pleading, while it appears to offend the rules of pleading in England, is not itself a reason for striking out a pleading, according to the law of Ontario. Unnecessary allegations in a pleading are not necessarily embarrassing, and the principle enunciated by Boyd C in Glass v Grant (1888), 12 P.R. 480, must be kept in mind, that, - 'the Judge should be chary in setting aside defences on a summary application, unless the pleading is so plainly frivolous or indefensible as to invite excision.' Another principle should also be adhered to, - that unless a pleading is embarrassing and prejudicial to a fair trial of the action, it should be left to be dealt with by the trial Judge, and the Court should not dictate to parties how they should frame their case. However, in Knowles v Roberts (1888), 38 Ch.D. 263, Bowen L.J. at p.270, observes: 'It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But the rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass, and delay the trial of the action, it then becomes a pleading which is beyond his right.'

**33. Applying this approach, I will not consider further the possibility that the whole of the Amended Statement of Claim should be struck out at this stage of the proceedings. In addition, I shall not prevent the amendment of the Amended Statement of Claim so far as the other parties actually consent to any such amendment.

34. In this case, however, even were I minded to follow the Western Australian approach and direct the parties to confer, I cannot, for the parties are unable to agree on the proposed amendments and have turned to the court to resolve the disagreement. What faces the court, however, is a pleading that does not conform with the rules of pleadings, but where the court is obliged to decide the dispute in accordance with those rules.

35. The plaintiff sought to amend his Amended Statement of Claim in accordance with a document (the Further Amended Statement of Claim) attached to the Application in Proceedings filed on 30 November 2009. This document added material to paragraphs 12, 19 and 28 of the Amended Statement of Claim, added new paragraphs 13(A), 20(A), 26(A), 27(A) and 31(A) and added to particular (g) of paragraph 35 and a new particular (j) to that paragraph. I do not need to set out all the amendments for the reasons set out above (at [33]), but only those agitated at the hearing of the application.

36. Of all the proposed amendments, only four were the subject of argument in the hearing. These were:

On 21 June 2000 a nurse employed by the first defendant, who had never attended the plaintiff before, attended at the plaintiff's residence and, upon seeing the state of the wound on the plaintiff's buttock, exclaimed "holy shit, how long have you had that?", immediately telephoned Dr Jamison, the plaintiff's general practitioner and arranged an ambulance to convey the plaintiff to hospital for treatment.

On 6 June 2001 a Sinogram and CT requested by the second defendant disclosed a deep collection 10cm in diameter in left aspect of anus and a collection measuring 20mm in diameter in right paraspinal musculature.

On 6 February 2009, the plaintiff's right leg was amputated below the knee at St Vincent's Hospital.

(d) associated with (b), the insertion of a new particular, (j), to paragraph 35:

Having identified the presence of two collections one 10cm in diameter and the other 20 mm in diameter, as a result of a sonogram and CT report dated 6 June 2001, failing to either explore and remove the collections or advise the plaintiff of the need for such exploration and removal.

37. The first defendant opposed the first and third amendments, though the opposition to the third amendment appears to have been withdrawn when its purpose was explained by the plaintiff's counsel.

38. The second defendant opposed the second, third and fourth amendments which were really the ones that affected him.

39. I read an affidavit of Mr Richard Faulks filed on behalf of the plaintiff and Mr Faulks was cross-examined. The first defendant filed an affidavit of Jayne Margaret Reece which exhibited a number of important documents that I read. She was not required for cross-examination. The second defendant filed an affidavit of Andrew Brantley Lu which I also read. He was also not required for cross-examination.

40. As well as the exhibits to Ms Reece's affidavit, I received a tender bundle of documents provided by the plaintiff and a report from Dr David Caminer dated 20 May 2009.

41. I also received from the second defendant a bundle of letters and a letter which the plaintiff sent by fax to his solicitor.

42. The cross-examination of Mr Faulks covered a number of areas, including the way he received instructions from the plaintiff, which involved a few face-to-face conferences, some telephone discussions and sending him documents for information or approval such as letters requesting and supplying particulars. He did not take a statement from him. This may have contributed to the need for the present application. He acknowledged that the particulars provided to the Amended Statement of Claim limited the negligence claim against the Nursing Service to a closed period up to May 2000. He accepted that he was aware well before the hearing in June 2009 of the hospitalisation of the plaintiff in June 2000. He had neither located nor identified the nurse referred to in proposed paragraph 20(A). He had not taken specific instructions about some matters in the Nursing Services notes. He thought that he had received the sinogram report in the material discovered by the second defendant but certainly knew of it and its significance by November 2007. He had, however, not received Dr Caminer's report about it until May 2009.

43. Notwithstanding the more liberal approach to pleadings referred to earlier, I would not be prepared to permit an amendment to the Amended Statement of Claim in the terms proposed (see [36] (a) above).

44. Quite apart from the fact that it pleads evidence and not material fact, there are two serious objections to it in its present form.

45. In the first place, it appears that the statement alleged to have been said by the unidentified (and apparently unidentifiable) nurse can only be relevant if it is in the nature of expert evidence. That is to say, it is only relevant if it implies that what she saw was a serious medical complication and that it betokened inadequate prior care. These are matters of opinion and there is no material to suggest that she was qualified to give either. It is inappropriate, even if evidence is to be pleaded, that inadmissible evidence (or, at least, evidence the admissibility of which has not been justified) be pleaded.

46. In the second place, the proposed new paragraph is not in a form that identifies a cause of action or is an element of one. It is not difficult to engage in the necessary mental gymnastics that are needed to construct a cause of action, but the pleadings are, if anything, required to show clearly what precisely the case is that the plaintiff wishes to make. In order to tease out a cause of action, one is left to speculate on whether the plaintiff proposes to make some or all of the following allegations:

• the plaintiff's condition on 21 June 2000 was such that it could not have arisen between the last required and actual visit of a nurse from the Nursing Service;

• the condition must have been obvious to a suitably qualified nurse from the Nursing Service before 21 June 2000;

• the condition could not have so worsened between the last actual visit of a nurse from the Nursing Service such that it was not then but now was sufficiently serious to warrant hospitalisation;

• that, no steps had been taken by the Nursing Service to bring the condition to the attention of Dr Jamieson or to the plaintiff, or both (though on the material before me, that does not seem to be able to be sustained, at least completely).

47. As to other elements of the cause of action, I accept that other paragraphs plead that the Nursing Service was treating the plaintiff and this would appear to be sufficient to give rise to a duty of care in the Nursing Service to the plaintiff.

48. Nevertheless, there is no allegation of the state of the wound at relevant times such as to disclose a breach of that duty of care or that the wound was in its condition as a result of action or failures of the Nursing Service or its servants or agents. The general allegation of negligence later in the pleading is not sufficient for this.

49. Some of these issues are addressed but not resolved by particulars of the Further Amended Statement of Claim which, notwithstanding that leave had not been granted to file that document, were supplied on 10 August 2009. Interestingly, however, they were asked of and provided to a different paragraph of the Claim.

50. They were, in fact, provided to paragraph 35 which was not the pleading of a material fact, but which was described as "Particulars of the Negligence of the First Defendant". That is, they were further and better particulars or particulars of particulars, not pleadings.

1. The pressure sore did not resolve despite treatment from community nurses, resulting in non-healing of the sore, worsening of the sore so as to comprise a necrotic ulcer with dimensions eight centimetres by seven centimetres, and severe fever and illness resulting from that.

2. From 16 May 2000 when the plaintiff again came under the care of community nurses until 22 June 2000 when the plaintiff was re-admitted to Canberra Hospital because of the ongoing worsening of the pressure sore.

5. The plaintiff should have been advised of its state and advised to obtain immediate medical attention from his doctor or another medical practitioner.

52. Even in these particulars, however, there is no allegation that the Nursing Service provided care which caused or culpably did not prevent the "non-healing" of the sore (though the latter may be implied, but ambiguously). That is to say, the alleged negligence, other than the failure to advise, is not articulated. Even the failure to advise is not pleaded on the basis of an allegation that the Nursing Service knew or ought to have known that the occasion for the seeking of medical attention had arisen.

53. These particulars, therefore, do not complete the articulation of the material facts that are necessary to make out the relevant cause of action. More is required.

54. I do not accept that particulars can fill gaps in a pleading.

55. As Scott LJ said (at 712-3) in Bruce v Odhams Press Ltd [1936] 1 KB 697:**

The function of 'particulars' under r 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness, particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a 'material fact' and a 'particular' piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping.

**56. This would permit a court simply to declare that the particulars in the Amended Statement of Claim were to be material facts, as did von Doussa J in Beach Petroleum NL and Anor v Johnson and Ors, that is, to incorporate the particulars into the actual pleading. Some of the important particulars in this case, however, were contained in the voluminous correspondence between the parties and so this approach could not be adopted here.

57. Had the particulars been adequate, that option might still be possible, but they are not adequate for the purpose of making out a cause of action. Even if they were, there is a more fundamental obstacle in the plaintiff's path in the application.

58. The particulars already given, it is conceded by the plaintiff, have limited the period, for which it is alleged the Nursing Service is responsible, as being up to 2 May 2000 when the plaintiff was admitted to John James Memorial Hospital. What is now sought is to claim liability of the Nursing Service for the period from his discharge from that hospitalisation on 16 May 2000 until his further hospitalisation on 21 June 2000.

59. The real question, then, is whether this is a new cause of action, for if it is, then the rule in Weldon v Neal (1887) 19 QBD 394 would apply, providing that such an amendment should not be permitted for it would breach the limitation period, allowing the introduction of a statute-barred claim.

60. In Golski v Kirk (1947) 14 FCR 143, Kelly J carefully examined the authorities as to what constitutes a cause of action. His Honour said (at 145-6):**

A cause of action has been defined as being:

... every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

Read v Brown (1888) 22 QBD 128 per Lord Esher MR at 131. See also Cooke v Gill (1873) LR 8 CP 107 at 116, per Brett J.

In Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232 at 242-243 Diplock LJ defined a cause of action as 'simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person'.

In Marshall v London Passenger Transport Board [1936] 3 All ER 83, the Court of Appeal considered a case where a plaintiff had been injured in a collision involving his bicycle and a tramcar. He issued a writ claiming damages for personal injuries and loss sustained by reason of the negligence of the defendants, their servants and agents. His statement of claim set up a claim of negligent driving. Subsequently he was granted leave to add further particulars which set up a case of neglect to keep the tram track and highway in repair, describing that neglect as a breach of statutory duty. It was held by the Court of Appeal that the amendment introduced a new case which if set up in an action commenced at the date of the amendment would have been barred by lapse of time. The amendment was disallowed. At 88, Lord Wright MR said:

... the proposed amendment would, if allowed, have set up a new cause of action involving quite new considerations, quite new sets of facts, and quite new causes of damage and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries. No doubt in cases of negligence injury is the gist of the action, but it is only one element. The cause of action involved duty, breach and damage, and the proposed amendment would have set up an entirely different duty and an entirely different breach of that duty. The one remaining feature of damage, it may be, would have been the same.

61. His Honour summed up his consideration of the authorities by holding (at 151):

In my opinion, a plaintiff should not be allowed to introduce new claims by amendment which in substance amount to the bringing of a new action for claims already barred by statute.

62. Beaumont and Ryan JJ agreed, though Ryan J did observe that there are difficulties in the application of this principle. His Honour said (at 157):

I have had the advantage of reading in draft the reasons for judgment of Kelly J. I agree with his analysis of the authorities in which a distinction is drawn between an amendment to a pleading which raises a new cause of action, or a 'new set of ideas', and one which merely gives different or additional particulars of what is essentially the same case. The distinction is not always easy to draw, especially where, as here, what is contended to be the new cause of action has a number of facts common to that originally pleaded, and attracts the same legal classification such as negligence.

63. Beaumont J did comment (at 155) on some of the characteristics which made the new claim a different cause of action:

The acts of negligence alleged are different in principle. They are alleged to have been committed at different times. Ex hypothesi, the alleged failure to advise with respect to the surgery occurred, if at all, before the operation took place. They are different breaches of duty even if, for some purposes, it may be accurate to say that they are different aspects of a doctor's general duty of care.

**64. Here, what is apparently alleged is that, after discharge from hospital, the Nursing Service resumed care of the plaintiff and on 21 June 2000, the plaintiff's condition required further hospitalisation because it had deteriorated as a result of the negligence of the Nursing Service between the discharge on 16 May 2000 and his re-admission to hospital on 21 June 2000 and that the Nursing Service, knowing of the deterioration, should have advised the plaintiff so as to give him the opportunity to obtain medical treatment.

65. This is a new cause of action. Mr Stretton SC, who appeared for the plaintiff, agreed. During the course of his submissions to me, the following exchange occurred:**

HIS HONOUR: I thought [Mr Higgs'] argument was this is introducing a new cause of action and you know that because the current cause of action even though it's pleaded generically in a way that might allow, as I think I argued or suggested right at the beginning, it might be argued to allow evidence about what happened after 2 May. The particulars which of course limit the scope of the pleadings had in fact limited the pleadings up to a period up to 2 May. Now the particulars and the - together with the pleading make it now clear that the new - and it's a new course [sic] of action ...

MR STRETTON: I never sought to argue to the contrary.

**66. Prima facie, then, the introduction of a new cause of action at this time should not be allowed as it is statute-barred.

67. Rule 503 of the Rules, however, to some extent abrogates the rule in Weldon v Neal and permits an amendment in certain circumstances. In particular, r 503(4) provides:**

(4) The court may give leave to make an amendment to include a new cause of action only if -

(a) a court considers it appropriate; and

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

**68. I have considered this sub-rule in Meredith v Commonwealth of Australia [2009] ACTSC 168 (at [28]-[33]). I do not need to repeat what I there said. In substance, I held that there need not be a precise identity of facts but an "overlap [that] is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action": Brickfield Properties Ltd v Newton [1971] 1 WLR 862 (at 880).

69. I suggested (at [23]) that the test is as follows:**

If a plaintiff fails to prove to the court's satisfaction the material facts, not including prefatory averments or matters of inducement, in respect of the pleaded cause of action to the requisite satisfaction of the trial court or at least substantially as to all them, yet does prove the material facts proposed to be included in the amendment, would the plaintiff still be entitled to relief from the court? If the answer is "no", then that is a strong indication that what is pleaded is not in the relevant sense a new cause of action. Conversely if the answer is yes it seems likely that it is a new cause of action.

**70. There is no doubt that what is here sought to be pleaded is a new cause of action. See Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431. The question is whether there is a sufficient overlap to justify permitting the amendment (if otherwise allowable).

71. The paragraphs that precede and succeed the proposed new paragraph are in the following terms:**

1. On discharge from hospital the plaintiff was visited at his home for treatment by ACTCNS for a communicating sinus on his left buttock and a pressure sore on his left heel. Daily irrigation of the sinus was assessed as necessary.
2. On 22 June 2000 the plaintiff was admitted to Canberra Hospital for treatment of a left ischial pressure sore on his buttock which was debrided.
3. On discharge from hospital on 23 June 2000 the plaintiff again came under the care of ACTCNS.
4. Between 3 October 2000 and 27 October 2000 the plaintiff was admitted to the John James Hospital under the care of the second defendant.
5. On 3 October 2000 the second defendant operated to debride and provide a flap cover to the left ischial decubitus ulcer.
6. On discharge from hospital the plaintiff again came under the care of ACTCNS. He was assessed as requiring 3 visits a week to check healing of the wound.

72. The later paragraph that alleges breach of duty is quite general in these terms.

1. The plaintiff alleges that the ACTCNS were negligent in their care of him and that such negligence caused him injury, loss and damage.

**73. As can be seen, the latter allegation is also not limited in time. It is certainly apt to include the period of care referred to in paragraph 13 and, probably paragraph 15 and paragraph 18 of the Amended Statement of Claim (see [71] above).

74. The only limit comes from the particulars provided by the plaintiff. As is appropriate (r 432(1) of the Rules) particulars were provided of paragraph 32 in the Amended Statement of Claim, some of which are as follows:**

1. Failure to draw to the attention of the plaintiff the worsening state of the pressure sore on the plaintiff's left buttock in circumstances where the plaintiff could not see the area and where the area was anaesthetic because of the plaintiff's paraplegia.
2. Failing to notify the plaintiff's General Practitioner, Dr Jamieson, that the plaintiff's pressure sore had worsened.

1. Failing to advise or recommend to the plaintiff that he should obtain an alternating pressure air mattress (APAM) to assist in the management and prevention of pressure sores.

75. Again, it can be seen that these are general, especially in that they are not time limited. Further particulars were, however, sought and provided. Thus, the further particulars of particular a) above were given in correspondence as follows:

It is alleged the plaintiff should have been advised of the presence of the pressure sore and its deterioration as soon as the agents of the first defendant were aware of the pressure sore. It is alleged that this was in or about early 2000 and continued up until the time when Dr Jamieson was finally advised on or about 2 May 2000.

**76. Further, in answer to the question asked about particular c) above "When should that recommendation have been made," the response in correspondence was "From in or about January 2000".

77. A clarification was sought as to this further particular as to what was meant by "early 2000" and the response was:**

The plaintiff was aware of the wound over the left buttock on discharge from hospital on 8 December 1999. He was not aware of any deterioration of that wound until 2 May 2000. During that period, the ulcer significantly deteriorated. Despite the fact that the first defendant, through its servants and agents, made home visits to purportedly care for and treat the plaintiff, and in particular, treat his ulcers, no such servant or agent reported to the plaintiff that there was any deterioration in the state of his ulcer. Had your client not failed in its duty to properly monitor and treat the wound, and advise the plaintiff of the need for a doctor to assess the deteriorating state of the ulcer, the plaintiff may have avoided the need for significant medical treatment, hospitalisation, and gross scarring.

78. The first defendant's lawyers responded and stated:

... the Statement of Claim, when read with the plaintiff's answers to my request for particulars, make it quite clear that the claim against my client is limited to two discrete matters as follows:

1. The first part of the plaintiff's claim is that my client did not properly treat your clients left buttock ulcer between December 1999 and May 2000 with the result that the ulcer deteriorated more than it otherwise would have. I refer specifically to paragraph 33(a) - (d) of the Statement of Claim and to your letters dated 7 November 2006 and 28 February 2007, which make it clear that these allegations refer to the closed period of time between the plaintiff's discharge from hospital on 8 December 1999 up until 2 May 2000.

**79. The second matter listed, namely b), is not presently relevant.

80. No challenge to that summary was made by the plaintiff's lawyers. By the same token no application was made by the defendants or either of them to strike out paragraphs 13 to 18 which now became at least irrelevant if not embarrassing. I do note that this summary formulated the negligence as a failure properly to treat rather than a failure to advise, the letter of which had, up till this time, seemed to have been the thrust of the plaintiff's allegations. Clarity is required.

81. The first defendant filed a defence and, so far as these paragraphs are concerned, pleaded as follows:**

[The first defendant] ...

Admits that the ACT Community Nursing Service provided nursing care to the Plaintiff but does not otherwise admit to the allegations contained in paragraphs 5, 6, 7, 8, 9, 10, 12, 13, 14 and 15. Further during this time the Plaintiff was under the care of a number of other persons and entities including the second defendant. The first date the plaintiff was referred to the ACT Community Nursing Service was 6 July 1998.

**82. The allegations in paragraph 17 of the Amended Statement of Claim were not admitted and a response similar to the above (at [81] was also pleaded to paragraph 18 of it.

83. The matter became somewhat confused because in a response to a request to clarify the ulcers and pressure sore which it is alleged the first defendant's servants or agents had caused or permitted to develop, there was reference to an ulcer suffered by the plaintiff and tracked by Dr Caminer from the left to the right buttock at an operation on 10 December 2002 (well outside the relevant period as particularised) and that there was a discharging sinus on the plaintiff's right hip on 1 November 2002 (also outside the period) which had been present since April 2000.

84. Nevertheless it seems clear that until the application to amend in June 2009, the plaintiff had limited his negligence claim against the first defendant to a period from 8 December 1999 to 2 May 2000. The Amended Statement of Claim, however, had not been amended to remove allegations of fact that postdated that period and the first defendant had engaged in actively pleading to those paragraphs.

85. Accordingly, though the matter is at best confusing, it seems to me that the new cause of action can be said to have arisen out of facts that had already been pleaded and which were apt to be encompassed within the material facts (being somewhat generous in the use of that term) that were pleaded and arguably which support the pleaded cause of action. There were limits imposed on the claim through the particulars but particulars can be amended. Indeed, even at trial, particulars can be amended to conform with evidence actually given: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 (at 664).

86. Thus, I propose to give the plaintiff leave to insert a new paragraph 13(A) in the Amended Statement of Claim to cover the period for which he now claims that the first defendant was negligent but it must be pleaded in accordance with the rules of pleading, that is it must plead material facts and only material facts and not evidence, and it must specify what the precise allegation is, whether failure to treat properly, failure to advise (and when that arose) or both.

The second and fourth proposed amendments: new paragraph 20(A) and new particular 35(j)

87. It is convenient to consider both of these amendments together as they address the same issue.

88. The proposed paragraph 20(A) clearly pleads evidence. It is not a material fact of any cause of action pleaded by the plaintiff. As such, I can see no basis for leave to amend the Amended Statement of Claim to permit its inclusion.

89. If the new particular is permitted, then the new paragraph 20(A) is not required for any forensic purpose for even if (as I consider likely) the evidence that it contains would be admissible in any event as part of the course of treatment and monitoring of the plaintiff's condition, it would certainly be admissible if the particular were allowed to be included.

90. Accordingly, the only basis on which the proposed paragraph could be permitted is if, somehow, refusal to allow such an amendment might prevent the plaintiff leading evidence of the matters it states. I am presently unpersuaded that this would be so. So far as I can speculate, the defendants may (but did not) argue that since so much evidence is already pleaded in the Amended Statement of Claim, if further evidence is not pleaded, it should be excluded and not admitted. I do not consider that to be the correct approach. If evidence is admissible as probative of a fact in issue disclosed by the material facts (and not the evidence, of course) that plead a cause of action, then it should be admitted. It is not admissible only if referred to in the pleadings.

91. Thus, I will not permit the addition of proposed paragraph 20(A) but in so doing I explicitly state that this ruling is not relevant to the admissibility in evidence of the matters stated in the paragraph, which should be determined in accordance with the ordinary rules of admissibility.

92. That leaves the proposed new particular. Generally, an amendment to particulars is not as fraught as an amendment to pleadings. Particulars cannot add a new cause of action. They can, of course, limit the claims but not extend them.

93. Here, the particular proposed to be added provides another element of negligence encompassed within the cause of action already pleaded against the second defendant.

94. The real challenge by the second defendant's counsel to the amendment is that the amendment will cause prejudice. This prejudice does not arise, however, from any surprise or new material that the second defendant could not have anticipated. The sinogram report is a document that was in the possession of the second defendant; it was amongst his records. It appears to be item 29 in Schedule A to his affidavit as to documents sworn on 10 April 2006.

95. The second defendant's lawyers filed an affidavit which, in their opposition to the amendment, asserted prejudice to him. It stated:**

1. In addition to the further steps that may need to be taken by both defendants, if the proposed amendments to the claim are allowed by this Honourable Court, the second defendant has suffered prejudice from the original hearing of June 2009 having been aborted, and from the relisting of the matter for hearing in February 2011.
2. Examples of the actual prejudice suffered by the second defendant to date include:

(a) cancelling two weeks of surgeries to appear in court in June 2009, when the hearing was aborted, including loss of patients to other plastic surgeons, and reorganising his diary to see scheduled patients at a later date;

(b) the negative impact on the second defendant's professional reputation though continuing to be listed in the ACT Supreme Court list as a defendant to these proceedings whilst he is in practice in public and private healthcare facilities within the ACT;

(c) being required to cancel more surgeries to the detriment of plastic and reconstructive surgery patients in the ACT, to give instructions on the proposed new allegations, and review material and prepare for the hearing of this preliminary issue and a final hearing with a longer estimate of three weeks;

(d) interruption to his private practice and to his reputation as a senior consultant plastic and reconstructive surgeon nationally, due to the involvement of more medico-legal experts; and

(e) loss of income from the second defendant's private practice due to the need to schedule more meetings to prepare the defence of expanded and different issues sought to be introduced by the amendment.

1. In addition, the second defendant has expended substantial time and costs investigating, negotiating, and preparing the case based upon the reasonable expectation that the current version of the claim pleaded all the real issues.

**96. The second defendant also says that the delay in referring to the sinogram and the report on it is not only substantial but unexplained. To a very large extent that is true and if that were the sole criterion, I would hold that the explanation for the delay is inadequate to justify permitting the amendment.

97. It is, however, not sufficient in itself, though it must be taken into account and given full weight.

98. The prejudice referred to in paragraph 23 of the affidavit of the second defendant's lawyer needs also to be addressed. It falls into two parts: prejudice already suffered, such as in paragraph 23(a) and perhaps (b) of the affidavit and in part in the other sub-paragraphs, and then prejudice yet to be suffered.

99. So far as past prejudice is concerned, it should not be ignored but it is to a large extent of little importance in this case. As to paragraph (a), I note that the decision to adjourn the trial has already been made; I should not controvert the decision then made by Gray J nor revisit it. I also note that the plaintiff was, as a consequence, ordered to pay the defendant's costs. As to paragraph 23(b), there is nothing that can be done about prior appearances in the court lists. So far as the future is concerned, apart from the appearance for delivery of this judgment (inevitable whether the second defendant's opposition succeeds or not) there do not seem to me to be any further appearances required as a result of any proposed amendment and so no further prejudice of this kind will be suffered.

100. Mr Purnell SC, who appeared for the second defendant, pressed the issue of past prejudice. It seems to me, however, that the High Court has clearly indicated that, while past behaviour is relevant, the real prejudice to be addressed is that resulting from the court's action, such as making or allowing the amendment.

101. Thus, in a somewhat different but relevant context, Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 held in the context of prejudice, the following (at 547):**

Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [(1964) VR 788 at 793] in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [(1966) Qd R 465 at 474]:

It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.

**102. In Aon, it is clear that the prejudice is in the nature of that which is consequential to the amendment. Thus, French CJ refers (at 182: [5]) to "unnecessarily delaying proceedings" and "[i]nefficiencies in the use of [the courts as a publicly funded] resource, arising from the vacation or adjournment of trials".

103. The plurality referred (at 214: [102]) to:**

... the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case.

**104. It is clear that the prejudice referred to by their Honours is to the fair trial which, of course, is to happen in the future (though affected by past events).

105. In any event, much of the complaint of the second defendant is really directed at the decision to adjourn the hearing in June 2009. That decision has, however, been made and I cannot, nor should I, subvert it now by revisiting it.

106. Here, I cannot say that any of the past prejudice itemised will impact on the fairness of the trial.

107. As to the prejudice caused by the future prejudice, suggested in paragraph 23(c) to (e), the difficulty I have is that these suggested problems are not particularised in any meaningful way. For example, it is not at all clear to me that the reliance by the plaintiff on the sinogram and report on it to the second defendant would require another expert to be retained in addition to those presumably already retained by the second defendant. That has not positively or explicitly been asserted. I would need this to be specifically addressed before I could be satisfied that this was more than speculation.

108. Similarly, it is not at all clear to me that any significant consultation would be required as a result of the amendment. The document was already in the possession of the second defendant, he disclosed it in his affidavit as to documents. It is inconceivable to me that the experienced solicitors and counsel he has retained would not have already addressed the effect of it to some extent, though a further conference may be needed.

109. Finally, the hearing has not, as I understand it, been extended by virtue of the amendments proposed, but by virtue of a re-assessment of the realistic time the trial will actually take.

110. Mr Purnell SC, also referred me to a number of passages from Aon. He referred to what the plurality said by way of conclusion (at 217; [111]):**

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest up-on a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

(footnotes omitted)

111. I accept, of course, all that is there said and apply it to this issue. He also referred me to what French CJ said (at 192; [30]), where his Honour raised a number of matters to be taken into account:

It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

**112. I accept, of course, all that is there said and apply it to this issue.

113. He also referred to what the plurality said (at 214-5; [102]), part of which I have already referred to above (at [103]) but where their Honours also noted the relevance of the point in the litigation where the application is made relative, in particular, to the trial. As their Honours observed, "[t]here may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment." Their Honours also referred to the invariable requirement for an explanation to be given.

114. Mr Purnell SC further referred to what the plurality also said (at 215; [105]), where their Honours referred to what they described as the error of the primary judge in failing to recognise the extent of the new claims and the effect of the amendment on the defendant. This is, obviously, an important matter to consider.

115. As a result of my finding in relation to proposed new paragraph 20(A), I am now only concerned with the amendment to the particulars. While such an amendment can have serious consequences, it seems to me, having regard to decisions such as Dare v Pulham, Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 (especially at 446) and Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 (at 111, 112, 127), that the approach to an amendment of the particulars is somewhat different to that of an amendment to the substantive pleading.

116. This is, of course, in part because the particulars do not circumscribe or in any way modify the cause of action of the plaintiff: Katsilis v Broken Hill Pty Co Ltd (1978) 52 ALJR 189 (at 201).

117. After all, the particulars must be related to and provide detail of a cause of action already pleaded and of which notice has properly been given.

118. That does not mean, as here, that the limits placed by particulars already given may, if sought to be amended so as to enlarge the otherwise previously restricted limits of the claim, not cause delay, expense, inconvenience and, indeed, the kind of problems adverted to in paragraphs 23(c) to (e) of the affidavit of the lawyer for the second defendant (see [95] above). Of that prejudice, however, I consider that I need clear and detailed explanation, more than the generalities there alleged, unless it can be said that it is so obvious as not to require that and I do not find that here.

119. Here, it seems to me that I can find in relation to the amendment to add particular (j) to paragraph 35:

(a) it will not occasion delay in the proceedings and will not now require any adjournment of the proceedings;

(b) it will not occasion any extensive, unreasonable or unfair costs that cannot be resolved by appropriate orders;

(c) it will not prejudice a fair trial of the second defendant's defence;

(d) it will not unreasonably require the second defendant to interfere with his daily professional life such as to justify a refusal of the grant of the amendment;

(e) it will not impose unreasonable additional strain and uncertainty on the second defendants;

(f) the breach of proper case management can in this case be effectively and adequately be sanctioned by appropriate orders; and

(g) the amended particular does not raise a false issue or one that is hopeless or has no reasonable prospect of success.

120. I am not particularly impressed with the explanation for delay submitted on the plaintiff's behalf. On the other hand, it is true to say that the delay was in large part in the hands of the doctor whose report was sought and which was not forthcoming for many months. The doctor is not someone over whom the plaintiff has much control though there appeared to be little pressure actually exerted on the doctor to provide his report in a timely way.

121. According, I will permit the amendment by the addition of a new particular of negligence being 35(j).

122. This, again, is the pleading of a matter of evidence. It is said to be a relevant matter to damages, but is not asserted to be a consequence of any act of either defendant. It was said to be a factor that would affect his treatment.

123. As Mr Higgs SC opined, it is not a material fact, but it is something of which the plaintiff could lead evidence in any event.

124. It was also suggested that it affects "the burdens" that the plaintiff has to bear. It is human to feel sympathy for a man who has become paraplegic through an accident and who has now had a leg amputated, but that is not relevant to the determination of whether he has suffered through the negligence of the defendants in these proceedings and what damages that entitles him to be awarded.

125. As circumscribing, if it does, his treatment or the way it can be provided, it appears to be relevant to his damages, but so are a myriad of other factors. They do not all need to be pleaded.

126. I decline to permit this paragraph to be inserted, but lest the position be misunderstood, I clearly state that this is not to make any decision about the admissibility of this evidence at trial should it otherwise be admissible.

127. With some hesitation, I will permit the amendment of the Amended Statement of Claim as proposed in the document attached to the Application in Proceeding other than as to proposed paragraphs 13(A), 20(A) and 31(A).

128. In relation to paragraph 13(A), I will permit the plaintiff to amend the Amended Statement of Claim to allege negligence on the part of the first defendant, by its servants or agents, in respect of the period from 15 May to 21 June 2000 provided it is pleaded by alleging only material facts and which identify the particulars of negligence (e.g. whether by failing to treat, failing properly to treat, failing to advise or otherwise) and not by pleading evidence.

129. As to costs, the plaintiff must pay the costs of and caused by the amendment. I will, however, direct that such costs not be assessed or payable until judgment is given in the proceedings and I will give the defendants leave to apply at the trial for any directions that they wish to seek about the quantification of these costs. For example, it seems to me that if, as a result of the amendments, there are steps that are now to be taken which could have more efficiently been taken when other work was being done, it may assist the parties to address that at trial rather than through the taxing officer.**

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the first defendant: Mr D Higgs SC and Mr J Watts

Solicitor for the first defendant: ACT Government Solicitor

Counsel for the second defendant: Mr F J Purnell SC