Procedure - Supreme Court Procedure - Tasmania - Practice under rules of court - Pleadings - Particulars - Function and scope of particulars - Action for negligence - Particulars of damage requested when injury not settled.

Supreme Court Rules 2000 (Tas), rr227, 228(1), 253.

R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738; Philiponi v Leithead [1959] SR (NSW) 352; Grollo & Co Pty Ltd v Hammond (1977) 16 ALR 123; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 219; Minchim v Adamson (1975) 10 SASR 119; Lemon & Co Proprietary Ltd v Moran & Cato Proprietary Ltd [1921] VicLawRp 43; [1921] VLR 240; Do Carmo v Ford Excavations Pty Ltd (1983 - [1984] HCA 17; 1984) 154 CLR 234; Banque Commerciale SA, in liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, referred to.

Plato Films Ltd v Speidel [1961] AC 1090; P J Holdings Australia Pty Ltd v Hughes [1980] Qd R 83, distinguished.

Judgment Number: [2003] TASSC 97

1 This appeal, from a decision of the Master, concerns the right to, and extent of, particulars which might reasonably be required of an opposing party during the course of preparation of an action in tort seeking damages.

2 The appellant was injured at his workplace, the Beaconsfield Gold Mine, on 23 December 2001. He had been assisting a contractor engaged in drilling operations during which a drill bit broke, and an attachment struck the plaintiff, causing injury. The appellant elected to commence proceedings against the contractor, but has claimed workers compensation from his employer. These proceedings, grounded in negligence, were commenced by writ filed on 30 August 2002. In his statement of claim of the same date, the appellant provided "Particulars of Personal Injuries" in the following terms:

"(a) Multiple bruising and grazes to the back, abdomen, lower chest and arms.

He stated such "injuries, loss, damage and expense" to have been "caused by the negligence of the defendants, their servants or agents".

3 By their defence dated 25 September 2002, the respondents pleaded, in relation to the "Particulars of Injury" that they did not admit the pleaded allegations and denied that the appellant had suffered injury, loss and damage as a result of negligence. The respondents further pleaded that:

"... if the plaintiff was injured (which is not admitted), such injuries were caused or contributed to by the plaintiff's own negligence."

Under the heading "Particulars", the respondents stated in relation to their pleading of contributory negligence that:

"(Further particulars to be provided after discovery and interrogatories)."

4 The appellant made discovery verified by affidavit sworn on 8 October and filed on 14 October. In that document, he listed some 49 documents, or bundles of documents, and identified in Part II of the First Schedule, a number of documents said to be privileged. Significantly he identified in that schedule:

"4 Correspondence between plaintiff's practitioner and plaintiff's medical advisers briefed on behalf of the plaintiff.

5 Report prepared by Dr Ian Sale dated 4 June 2002."

5 Relevant to the request for particulars, the appellant made available for inspection the following material:

(1) workers compensation claim dated 24 December 2001 and bundle of workers compensation medical certificates;

(2) seven items of correspondence from an insurer dated between 12 March and 10 April 2002;

(3) five items of correspondence from Recovre (a rehabilitation provider) and one item of correspondence between the insurer and Recovre dated between 19 April and 4 September 2002;

(4) copies of Recovre's rehabilitation program dated 30 April and 3 September 2002;

(4) copies of Recovre's "return to work plan/suitable alternative duties" schedules dated 10 and 29 July 2002;

(6) Northern Imaging Group and Launceston General Hospital X-rays dated 23 December 2001, 21 January and 24 July 2002".

6 It would appear that the respondents have not, as yet, sought to inspect the documents discovered, nor, according to the Court file, have they made discovery.

7 On 24 June 2003, the respondents' solicitors requested particulars from the plaintiff of "the injuries he sustained, his treatment and present condition", claiming:

"It is now over eighteen months since the accident and it would be expected that his physical injuries at least would be capable of some definition. Also, it would be expected that some medical proofs would be in existence in relation to his condition."

"In light of the above, the Defendant is prepared to allow twenty-eight (28) days for the Particulars of Claim to be delivered. However, if within seven (7) days I do not hear from you advising that this timetable is acceptable it will be necessary to apply to the Court. I look forward to hearing from you."

8 The appellant's solicitors replied by letter dated 7 July 2003, advising:

"I refer to your letter dated 24 June 2003. The plaintiff's injuries have not settled. The main complaint, however, is PTSD [post-traumatic stress disorder].

I am simply not in a position to provide particulars at this stage. I will, however, seek instructions to release copies of medical reports that I have in my possession to you."

9 The interlocutory application filed on 9 July 2003, seeks orders that:

"1 The Plaintiff provide particulars of his loss, damage and expense within twenty-eight (28) days.

2 The Plaintiff provide proofs of experts intended to be called at the trial within twenty-eight (28) days."

10 It has been necessary to set out the above in order to ascertain the purpose of the respondents in seeking further particulars, the extent of the terms of that requirement, and the effect of their provision on the capacity of the respondents to meet the claim. Their extent was articulated by counsel appearing before the Master in the following terms:

"... particulars of his injuries, physical and mental, particulars of the treatment of his injuries physical and mental to date, and particulars of his current symptoms and disabilities attributable to the accident on the 23rd December 2001."

11 The respondents state their bases for seeking the particulars as:

(1) the right of a defendant to properly know the nature of the case brought against him or her;

(2) the status of the parties, ie, the action not being against the employer, affects capacity to consider the workers compensation material;

(3) the opportunity to identify current injuries suffered to enable them to have the appellant examined by their specialists;

(4) the opportunity to identify and assess progression or regression in the state of health of the appellant and evaluate any nexus with the accident;

(5) permitting evaluation of the condition of the appellant so as to enable proper consideration to be given to an offer of compromise.

12 The Supreme Court Rules 2000, r227, require that:

"227 - (1) A pleading is to contain in summary form a statement of all the material facts on which the party relies but not the evidence by which those facts are to be proved.

(3) Every pleading is to be expressed so as to give reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial."

"... pleadings are to continue until the substantial matter in dispute between the parties has been definitively shown by the pleadings."

"(1) The Court or a judge may order the delivery of -

(a) a further and better statement of the nature of the claim or defence; or

(b) further and better particulars of any matter stated in any pleading."

13 The accepted function of particulars remains as stated by Isaacs J in R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, namely that an opposing party:

(1) must be appraised of the nature of the case to be met;

(2) be informed of the legal framework and constitutive facts supporting the framework;

14 These principles remain applicable and are consistent with the principles of modern case management. A useful compilation of the principles governing the provision of particulars is set out in a decision of the Supreme Court of New South Wales In Banco in Philiponi v Leithead [1959] SR (NSW) 352, especially in the summation of counsel's arguments at 353 - 357. In their joint judgment Owen, Kinsella and Manning JJ stated, at 359:

"Curiously enough, whilst there has been considerable development and a much more liberal approach has been adopted in recent years in the ordering of particulars in negligence actions, other than running-down cases, there is reason to suppose that in the latter type of case the position has remained static. It is comparatively rare for a case to be brought before the Court involving (for example) a claim in respect of dangerous premises, a failure to provide a safe system of work, professional negligence, or the like, in which particulars have not been requested and furnished. It is equally rare for particulars to be requested or furnished in a running-down case. Yet in principle there can be no distinction, and the Court's discretion as to ordering a party to furnish particulars should be exercised on identically the same principle in all cases. The only basis which was suggested to us for the distinction which seems to exist is that in running-down cases there are, prima facie, only two actors, of whom the defendant is one, that accordingly the defendant is to be presumed to know as much about the circumstances as does the plaintiff, and therefore the defendant must show that some special circumstances exist before he is entitled to an order that particulars be furnished to him. This notion is fundamentally unsound, for the reason mentioned above, namely that the function of particulars is to let the party in question know the case he has to meet. It is by no means infrequent that, if particulars are not given, the allegations made by a plaintiff at the trial include matters which, having regard to the defendant's recollection of events, or for any one of a variety of reasons, were not known and could not have been known to him previously.

It is clear that there is no prima facie presumption either way. A party is not entitled to particulars as of course. He must show circumstances which warrant an order being made. But there is no warrant for the submission that the circumstances which a party must establish need be in any way 'special' if the use of the word 'special' is intended to suggest that some distinction exists between running-down cases and other actions in tort."

In relation to cases such as this, they observed, at 361:

"There is a further matter of considerable importance from a practical point of view which should be mentioned. The Motor Vehicles (Third Party Insurance) Act, 1942-1951, has created a large body of defendants who have no financial interest in the result of the litigation. The real defendant in many cases is an insurer, who may have to face many difficulties, due for example to lack of co-operation on the part of the named defendant or to other circumstances which would not exist if the named defendant was the real defendant. 'Where the action is brought against a person only constructively liable ... the particulars should be more explicit than in ordinary cases' (Chitty's Archbold's Practice of the Court of Queen's Bench, 12th ed (1866), vol 2, p 1456).

Modern development requires that in such cases, not only should particulars be more explicit but they should be more readily ordered.

It must also be remembered that although the function of particulars is to limit the issues of fact to be investigated, they do not, when furnished, modify or alter the cause of action sued upon. And whether a party is to be held to the issues of fact specifically raised by the particulars is always a matter for the discretion of the Court: Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at p 110."

But that modern emphasis is nevertheless directed at "issues" rather than "evidence".

15 Whilst a civil court decides the case on the basis of the issues brought before it by the parties and the material they choose or succeed in putting before it, modern practice requires an efficient and full discovery of the material intended to be used. There is a distinction between pleadings which define the issues and discovery which governs the presentation of evidence. Particulars better inform the opponent of the case to be made and limit the issues to be raised (Grollo & Co Pty Ltd v Hammond (1977) 16 ALR 123; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 219). Where the original pleadings allege inadequately all the material facts, they are susceptible to an order for particulars (Minchim v Adamson (1975) 10 SASR 119). However, a request for particulars cannot require details of evidence or names of witnesses (Lemon & Co Proprietary Ltd v Moran & Cato Proprietary Ltd [1921] VicLawRp 43; [1921] VLR 240).

16 Modern case management principles require disclosure whilst attempting to reduce the proliferation of time and cost consuming processes and tactics. It has been said that:

"... one of the causes of requests for further and better particulars is the failure of the present system to require the real issues to be defined by the pleadings ...". (Some Proposed Changes in Civil Procedure, Davies J and S A Sheldon (1993 - 1994) 3 JJA 111 at 118.)

17 The converse is suggested by F G Brennan QC (as he then was) in his article Written Pleadings (1975) 12 University of Western Australia Law Review 33, when he said, at 33:

"... the areas of dispute as to discovery will be limited by the precision with which the pleadings properly define the issues. A pleading which raises issues too largely, will give rise to too large a discovery. A pleading which raises the issues too narrowly or which says too little will give rise to a discovery which is found to be inadequate in the fullness of time. The prolix pleading may produce arguments as to relevancy. The pleading which does not separate out the questions of law and fact may create uncertainty and disputes as to the ambit of proper discovery ...

Many of the problems of discovery are, in the final analysis, problems of pleading."

18 A requirement for discovery cannot be met by the vehicle of particulars unless the pleading itself fails to disclose issues. As Wilson J observed in Do Carmo v Ford Excavations Pty Ltd (1983 - [1984] HCA 17; 1984) 154 CLR 234 at 245:

"The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage: cf Cooke v Gill (1873) LR 8 CP 107, at p 116 ; Read v Brown (1888) 22 QBD 128, at p 131 ; Trower and Sons Ltd v Ripstein (1944) AC 254, at p 263 ; Board of Trade v Cayzer, Irvine & Co. Ltd. (1927) AC 610, at p 617; Shtitz v CNR (1927) 1 DLR 951, at p 953 ; Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465, at p 474. Knowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action. Indeed, a person may be well appraised of all of the facts which need to be proved to establish a cause of action but for want of taking legal advice may not know that those facts give rise to a right to relief."

19 In Banque Commerciale SA, in liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, Brennan J addressed the role of pleadings in the following terms at 287 - 288:

"In Thorp v Holdsworth (1876) 3 Ch D 637, at p 639, Jessel MR stated the object of pleadings:

'The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of Order XIX was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing'."

20 In the United Kingdom, a problem identified is that pleadings have become prolix, impede identification of issues, and are often superseded by amendments and further and better particulars. (See: Lord Wolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellor's Department London, 1995; Wharf Properties Ltd v Eric Cumine Associates (1991) 52 BLR 8.)

21 Despite suggestions for the collapse of pleading, discovery, and exchange of witness documents into one process: (Davies, Updating Civil Court Procedures for the 1980s, 49 ALJ 380 at 384; Davies and Leiboff, op cit, n8 at 118; Blackburn, op cit, n1 at 377; Wolf (supra), and see generally Solving the Problems of Pleadings Caron Beaton-Wells (1998 - 1999) 8 JJA 36), the distinction between pleadings, discovery and evidence remains clear. The request for particulars mixes the three processes into one.

22 Cairns, in his text, Australian Civil Procedure, 5 ed, Law Book Co 2002, states, at 187:

"An old rule of pleading was that matters relating only to the quantum of damages ought not be alleged"

citing Heffernan v Hayes (1899) 25 VLR 156 as authority, although he recognises that:

"Later authorities recognised that there are some circumstances where it is permissible to plead matters about quantum of damages."

However, the cases cited ( Plato Films Ltd v Speidel [1961] AC 1090 (defamation) and P J Holdings Australia Pty Ltd v Hughes [1980] Qd R 83 ( aggravated damages) were concerned with special areas of law. Some jurisdictions provide specifically in the rules for the pleading of particulars of damages (Federal Court Rules, 012, r4; NSW Pt16, r5; Qld r158), which vary in their requirements for specificity. The Rules of Court of the Australian Capital Territory have abolished the requirement for a statement of claim. In cases involving personal injuries arising from a motor vehicle accident, the originating application must comprise an annexed statement providing (inter alia):

(1) the nature and extent of the injuries and disabilities sufficient for the defendant to nominate a suitable specialist to examine the plaintiff;

(2) the name of any health professional who has treated the plaintiff;

(3) any condition which might have been exacerbated by the accident;

(4) the nature of any claim for past or future economic loss and details of employers (ACT, O2, r13).

23 Inquiry as to the current state of the condition of the claimant and prognosis as to the future, remains the province of discovery. The Evidence Act 2001, s196A, permits the medical examination of a claimant and the sanction of a stay of proceedings in the case of refusal (Papson v Woolworths (Victoria) Pty Limited [2000] TASSC 124; (2000) 9 Tas R 261). Modern case management might require, more readily, the provision of particulars, but it ought not interfere with a plaintiff's preparation and assessment of evidence. Nor should they be employed as a method of "keeping track of" the condition of the claimant.

24 The respondents' application comprises requests for particulars:

(1) of the appellant's injuries, physical and mental, caused by the accident;

(2) of the treatment of injuries, physical and mental, to date;

(3) of the appellant's current symptoms and disabilities attributable to the accident.

25 The reason for the limited reply given by the appellant's solicitors in their letter of 7 July 2003 can be explained by the contents of a report provided to them by Dr Colm Moore, a consulting specialist, dated 15 July 2003, which states:

"I examined Danny James Peet at your request on 17 January 2003 in Launceston.

I note that you have specifically asked me to comment on whether, in my opinion, Mr Peet's injuries have settled or stabilised.

It has been over a year since the incident. Considering the severity of the stressor I believe that Mr Peet has made reasonable progress to date, reflecting well on his personality strengths.

At this early point is [sic] very difficult to make a firm prognosis. The situation will be considerably clearer by the second anniversary of the incident, as two years is regarded as a sensitive cut off point and prognostic indicator.

I reiterate that in my opinion there has not been sufficient physical or psychiatric recovery to make rehabilitation feasible at this early point.

I make this comment based upon having run a vocational rehabilitation service in Victoria including persons such as Mr Peet. If he had been my client in the rehabilitation service, I would have closed his file until such time as there was an indication of improvement from the trio of persons currently actively treating him.

I note that Mr Peet has two years from the date of the original injury (23 December 2001) to make a decision upon whether or not he achieves a 30% whole person impairment (WPI).

I would suggest on that basis that a final decision in relation to impairment could be withheld until as late as November this year, 2003, if that is within the proper legal frame work."

26 The appellant also contends that the cost of providing "interim" assessments, in pleading form, is an expensive exercise. The contention is cogent since particulars provided form part of the pleadings and thereby govern the range of evidence and discovery (Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658). Their formulation would require care and detail and could not be provided without expense greater than that ordinarily incurred by a simple letter.

27 The statement of claim identified the injuries said to have been suffered by the appellant which included "psychiatric injuries". The letter of 7 July identified "post-traumatic stress disorder" as the particular form of psychiatric injury. The respondents have, through discovery, access to the workers compensation certificates and rehabilitation programs which enable them to assess changes in the physical and mental conditions of the appellant. They are able to have the appellant assessed by their nominated medical practitioner for both physical and mental conditions, and their development. They could make use of the X-ray "documents". The pleadings comprise a claim of identified injury.

28 Particulars ought not be used as a vehicle for discovery, nor to redress any defect in pleadings. The understandable desire of the respondents to discover the development of a psychiatric "syndrome" and to prepare their case to meet a complex claim ought not be met by a requirement that the pleadings be enlarged.