Samardzic v State of New South Wales

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20062/98 - Zlatko Joseph SAMARDZIC v STATE OF NEW SOUTH WALES

1 HIS HONOUR: This is an appeal brought pursuant to the Supreme Court Rules, Pt 60 Division 3, from a decision of the Master. The essential question is whether the respondent, Mr Samardzic, should be permitted to make certain amendments to a Statement of Claim by which he has sued the respondent, the State of New South Wales, for damages for negligence. 2 The respondent's claim was originally brought in 1989 in the District Court and was transferred subsequently into this Court.

3 The Statement of Claim, as originally drawn, pleaded relevantly, and as follows, the essential facts and circumstances said to give rise to the claim: "1. At all material times the Plaintiff was a Police Officer employed by the Defendant and is sued in accordance with the Crown Proceedings Act of 1988.

2. It was the duty of the Defendant to take all reasonable precautions for the safety of the Plaintiff while he was engaged upon his police duties, not to expose him to risk of damage or injury of which it knew or ought to have known, to provide and maintain proper and safe medical care and to provide a proper and safe system of work. 3. In or about October 1987 the Defendant failed to provide proper medical care for the Plaintiff and to immunise him against hepatitis notwithstanding that risk of infection of hepatitis was prevalent and likely in respect of police officers including the Plaintiff. 4. By reason whereof the Plaintiff subsequently was infected with hepatitis and sustained severe injuries and has suffered loss and damage. 5. The said injuries and loss and damage were occasioned to the Plaintiff by reason of the negligence and breach of duty on the part of the Defendant, his servants and agents. PARTICULARS OF NEGLIGENCE (a) No injections of immunisation against hepatitis. (b) No proper medical supervision or services supplied. (c) Failure to warn the Plaintiff of the danger of infection from hepatitis. (d) No proper medical inspection of the Plaintiff to ensure he was not infected with hepatitis and other diseases. (e) Failure to prevent the Plaintiff from becoming infected with hepatitis and other diseases."

4 By a decision given on 1 May 2000 a Deputy Registrar gave leave for substantial amendments to be made to this original pleading. With one variation, not controversial for the purposes of this appeal, the Master affirmed, on review, the Deputy Registrar's decision. The result is to permit the amendment of the original pleading so as to plead, relevantly and as follows, the respondent's claim: "3. During 1987 the Defendant failed to provide proper medical care for the Plaintiff and to immunise him against Hepatitis notwithstanding that risk of infection of Hepatitis was prevalent and likely in respect of police officers including the Plaintiff. Particulars (a) In his capacity as a police officer the Plaintiff came into contact with various persons including prisoners, persons arrested or suspected of crimes and others. ........ (b) In March, May, August, September and October 1987 in the course of his said duties as aforesaid the Plaintiff came into physical contact with persons who were infected with Hepatitis. 4. By reasons whereof the Plaintiff became infected with Hepatitis and sustained severe injuries and has suffered loss and damage. 5. The said injuries and loss and damage were occasioned to the Plaintiff by reason of the negligence and breach of duty on the part of the Defendant, it's servants and agents. Particulars of Negligence (a) No injections or immunisations against Hepatitis. (b) No proper medical supervision or services supplied. (c) Failure to warn the Plaintiff of the danger of injection from Hepatitis. (d) No proper medical inspection of the Plaintiff to ensure he was not infected with Hepatitis. (e) Failure to prevent the Plaintiff from becoming infected with Hepatitis. (f) Res ipsa loquitur. (g) No proper medical treatment or diagnosis."

5 The Supreme Court rules, Pt 20, make extensive provision respecting the amendment for pleading. In the present case, Rules 1 and 4 of Pt 20 have particular significance. They provide, relevantly: "1 (1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. [subr RSC (Rev) 1965 o 20 rr 5(1), 8(1)] (2) All necessary amendments shall be made 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. ...... 4. (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired. cf RSC (Rev) 1965 0 20 r 5 (2) [subr (1) am Amendment 305: Gaz 119 of 25 October 1996 p 7127] (2) [subr (2) rep Amendment 231: Gaz 103 of 20 October 1989 p 8670] (3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party. cf RSC (Rev) 1965 0 20 r 5(3) (4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity. cf RSC (Rev) 1965 0 20 r 5(4) (5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action. cf RSC (Rev) 1965 0 20 r 5(5) (5A) An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim. [subr (5A) insrt Amendment 231: Gaz 103 of 20 October 1989 p 8670] (6) This rule has effect in relation to a summons as it has effect in relation to a statement of claim. [subr (6) am Amendment 19: Gaz 110 of 20 October 1972 p 4133] (7) This rules does not limit the powers of the Court under rule 1. [subr (7) insrt Amendment 53: Gaz 160 of 5 December 1975 p 5071]" 6 The Master's decision rests essentially upon the following reasoning: 1. It is "borderline " whether these amendments arise out of substantially the same facts.

2. Even if the amendments do not so arise, with the consequence that rule 4 is not applicant, the amendments may be permitted, nevertheless, by reason of the power conferred by rule 1, rule 4 not being a limitation upon the power conferred by rule 1, (see rule 4 (7)).

3. Whether it be rule 1 or rule 4 which is capable of conferring power to permit the proposed amendments, the powers must be exercised in the particular case so as to give proper consideration to any demonstrated prejudice to the present appellant by the granting of leave to amend.

4. There is no evidence of actual prejudice, but because the events allegedly giving rise to the respondent's present claim takes place as long ago as 1987, there is, "presumptive prejudice."

5. On a fair view overall, " the plaintiff has discharged his onus," and the amendments ought, therefore, to be allowed. 7 SCR Pt 60 R (12) (b) requires that a notice of appeal to a Judge from a decision of the Master is to state, "briefly, but specifically, the grounds relied upon in support of the Notice of Appeal." The present appellant notified, in its Notice of Appeal, the following grounds: "1. The Master erred in law in affirming the Registrar's decision to grant the respondent leave to file an Amended Statement of Claim. 2. The Master gave insufficient weight to the prejudice that the appellant will suffer if the respondent files an Amended Statement of Claim. 3. The Statement of Claim discloses no reasonable cause of action." 8 The present appellant's submissions to the Master are summarised helpfully in paragraph 11 of the Master's reasons as follows: "The defendant submitted that leave should not have been granted under either Part 20 r 1 or Part 20 r 4(5) SCR because the further incidents are a new and separate cause of action which do not arise out of substantially the same facts. According to the defendant, the plaintiff should be required to seek an extension of the limitation period under the Limitation Act 1969 and put on evidence. In relation to discretionary matters, the defendant also submitted that the plaintiff had not explained his delay in making the application and that it suffers presumptive prejudice if the amendments are allowed." 9 With one qualification, the appellant's submissions to this Court reasserted, broadly speaking, the submissions thus summarised. The qualification is that before this Court the appellant sought leave to adduce evidence of actual prejudice said to flow from the proposed amendments, were they permitted to be made. 10 The granting of such leave was opposed and I refused leave for reasons stated in a judgment delivered ex tempore. That judgment has been recorded and it is unnecessary now to revisit its details. 11 At the hearing before this Curt, it was conceded by learned Senior Counsel for the respondent that each of the four potentially infectious contacts alleged in the amended paragraph 3 (b) was a distinct and separate causative event. This concept provides a convenient point of departure for the discussion of the correct application of rules 1 and 4 in the present particular case. 12 It follows from the concession made by counsel, that the contacts alleged to have occurred in March, in May, and in August 1987, are causative events, none of which can be accommodated within the material time frame originally pleaded, that is, "in or about October 1987." 13 Each of those three contacts raises, therefore, a ew cause of action in the sense that it raises, "a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. Letang v Cooper (1965) 1 QB 232, per Diplock LJ at 242-243. 14 It then follows that rule 4(5) will not assist the present respondent, unless each of those newly raised causes of action can be regarded reasonably as, "aising out of the same or substantially the same facts" as the facts grounding the cause of action originally pleaded;that is, a cause of action based upon an alleged potentially infectious contact occurring in October 1987. 15 In that connection, I have regard to the following propositions:
   1. "The selection of the material facts to define the cause of action must be made at the highest level of abstraction." Paragon Finance v D.B. Thackerar & Co. (1990) 1 All ER 400, per Millett J at 405, (g).

2. In Weller Development Agency v Redpath Dorman Long (1994) 1 WLR 1409, the Court of Appeal (UK) approved the view that: "whether or not the new cause of action arises out of substantially the same facts as that already pleaded, is substantially a matter of impression" . Per Glidewell J delivering the judgment of the Court at 1418D.

In Paragon Finance , Millett J did not question the proposition itself, but did add these riders to the proposition, "In borderline cases this may be so. In others, it must be a question of analysis".

3. It seems to me that if each of the four causes of action alleged to have arisen variously in March, May, August and October, 1987 were to be pleaded properly in accordance with the rules, then it would be apparent that the constitutent facts of each such cause of action were common to all four causes of action, save only as to the material date and as to the identity of the material potentially infectious contacts.

4. Whether that state of affairs be looked at, and to borrow from Millett J, from the point of view of impression, or from the point of view of analysis, the end result seems to me to be the same: that is to say, that the causes of action allegedly arising in March, in May and in August 1987, are, on any ordinary grammatical meaning of the word, "substantially," the same in their essential factual allegations as the cause the action allegedly arising in October 1987. 16 There was, therefore, in my opinion, power deriving from Rule 4(5) to permit the amendments made by the Deputy Registrar and by the Master.

17 If that approach be incorrect, then as the Master observed in paragraph 19 of the Master's judgment, Rule 1 would have been sufficient to confer the necessary power.

18 The foregoing conclusions do not entail that the proposed amendments must thereupon have been permitted as of course.

19 The actual exercise in a particular case of the relevant power, whether that power derives from Rule 1 or from an applicable sub-rule of Rule 4, involves the exercise of a judicial discretion. That discretion is of the broadest kind, but it is not arbitrary. The practical importance of that distinction is, with respect, summarised clearly and succinctly by Glass JA in the following passage taken from his Honour's judgment in McGee v Yeoman (1977) 1 NSWLR 273 at 280C: "I am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v Neal and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow: cf. Sophron v Nominal Defendant .. The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity. In my opinion, it follows that his Honour applied a rule of practice which has been superseded and that his exercise of discretion is liable on that account to be set aside."

20 That approach, applied to the facts of the present case, yields in my opinion the following propositions:

1 To have deprived the respondent of the proposed amendments would have compelled him to stand or fall on the contention that his undoubted condition of hepatitis B, derived from a contagious contact with one named prisoner during a particular contact in October 1987, whereas credible profession medical opinion, not available until 1999, suggested that the probabilities favoured some other and earlier date or dates of infection.

Given that same medical opinion, that hepatitis B has an incubation period which can vary from as little as 2 weeks to as much as 12 weeks, it would be, in my opinion, proper to allow the respondent some reasonable flexibility in pleading, so as to avoid an artificially rigid and precise dating of likely infection.

2. Such considerations need to be balanced carefully against a fair analysis of where the making of the proposed amendments would leave the appellant. It is not necessary to do more than to advert realistically to the length of time that has elapsed since the events of 1987 in order to understand at once that there must be, in the nature of things, some disadvantage to the appellant in now having to set about, for the first time, preparing for a contested trial of the proposed allegations that are dated back to March, to May and to August 1987.

3. It is, however, the case that the appellant is not wholly without relevant information. An affidavit sworn by the respondent on 9 March 2000 was read at the initial hearing before the Deputy Registrar. The affidavit establishes; (a) that the respondent was diagnosed in mid December 1987 as positive for hepatitis B. (b) that on 16 December 1987 the respondent submitted to his superiors a detailed report of his diagnosis; and of his own then perceptions of how and when he might have become infected during the course of his duties. (c) that on 26 March 1988 the respondent submitted a copy of that report, with an accompanying request for official investigation, to his Patrol Commander who forwarded it, two days later, on to an Assistant Commissioner. (d) that these reports at least drew attention to potentially relevant incidents occurring in May, in August and in October 1987. (e) that a contemporaneous entry in the respondent's official police notebook at least drew attention to a further potentially relevant incident occurring in March 1987. I see, as at present advised, no evidence apt to cast doubt upon the authenticity of the copies of all of these documents that are annexed to the respondent's affidavit. Nor do I see any evidence apt to cast doubt upon the honesty or upon the essential accuracy of the contents of those copy documents.

4. It cannot be thought sensibly that the appellant has no way of establishing whether any, and if so what, precautions were taken during 1987 by those then in relevant authority in order to prevent a police officer, whose duties required him to have contact with potentially infectious offenders, from infection caused by contact with blood or other potentially infection bearing bodies or fluids.

Similarly, it cannot be that the appellant has no access to evidence that if no such precautions were in place, either sufficiently or at all, then material best practice at the time, and material state of medical knowledge at the time, were such as to negate a conclusion of an unreasonable failure to take care as required by the relevant duty of care. 21 Given all of the foregoing proposals, it seems to me that the striking of a just balance that is in accord with the spirit as well as with the bare letter of the Rules, yields the result reached in fact by the Deputy Registrar and by the Master. 22 I should advert, finally, to the third of the notified grounds of appeal. In my opinion no reasonable view of the evidence at present available would support a finding that the respondent's case, as pleaded by the Statement of Claim as amended by the Deputy Registrar and by the Master, discloses no reasonable cause of action. 23 In those circumstances it seems to me that the appeal from the Master should be dismissed with costs. That is the order of the Court.

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