Wormleaton v Thomas & Coffey Ltd & Ors

1Yesterday I granted the plaintiff leave to file a further amended statement of particulars. The substantial amendment was to advance a claim in respect of future out of pocket expenses which included the cost of an above the knee amputation, together with on going costs relating to an appropriate prosthesis. 2The ground upon which the application was made was that in the joint report of the orthopaedic experts, both Dr Schutz and Dr Harrison referred to the possibility that an above the knee amputation may be a necessary course of future treatment. 3As I understand the position, neither party, for reasons that were beyond their control, received the joint report until Friday 29 November 2013, when it was signed off on by the experts. That, of course, was the business day before the commencement of this trial. Indeed, it did not come to the attention of learned senior counsel for the first and second defendants until the morning of Monday 2 December 2013. 4The application for amendment was opposed by the first and second defendants. The fourth defendant neither consented nor objected to it. The essential ground of the opposition of the first and second defendants was, as put by Mr Parker SC, the severe prejudice that would be suffered if this issue was ventilated in the context of the current hearing. Moreover, Mr Parker properly referred to the considerations of case management which are an essential consideration for any judge considering an interlocutory application in civil litigation in New South Wales. 5The severe forensic prejudice was said to be the inability of the first and second defendants to properly investigate this matter and to equip themselves with appropriate evidence to meet it. As I understand the argument that was put, the necessary steps extended to a further consultation with Dr Schutz to better elicit his views in relation to the matter and to the reasons why such further surgery might be necessary; it may also have extended to obtaining the opinion of a surgeon with a particular expertise in the performance of amputations; and of course given the expense of prosthetics in this area, the obtaining of particular advice about an appropriate prosthesis and the cost of it. 6Mr Parker also pointed out that if an adjournment for that purpose was necessary then the interests of other litigants whose cases may have been displaced by the listing of this case for five days would be adversely affected by the need to bring this case back for further hearing at some other time. 7Mr Cranitch of senior counsel, who appears for the plaintiff, delegated the argument in relation to the application to amend to his learned junior, Mr M Perry. Mr Perry relied upon the absence of forensic diligence on the part of the plaintiff. He emphasised that the amendment had arisen as a result of the joint report and not otherwise. 8He also pointed out that given the plaintiff's severe injury, and as there was no real dispute about the plaintiff's entitlement to substantial damages, it was in the interests of justice that the case proceed on the basis of the known facts and the available evidence rather than on an artificial basis. It was made quite clear that if the defendants required an adjournment to undertake the type of further investigations and enquiries that learned senior counsel had indicated might be necessary, the plaintiff could have no answer to that application. 9At the end of the argument yesterday I indicated that I had formed a strong preliminary view that the dictates of justice favoured granting the application to amend, more or less for the reasons advanced by Mr Perry. However, I allowed counsel for the parties an opportunity to take instructions from their respective clients in relation to whether an adjournment might be necessary in order for the matter to be properly investigated and advanced. It seemed to me at that time, although I had formed a strong view, that case management considerations might be a significant countervailing consideration telling against permitting the amendment, if it was likely to require a lengthy adjournment of uncertain duration, and the incurring of significant additional costs such that the costs presently expended in running the case, might have been wasted. 10A general power to amend is conferred on the Court by s 64 Civil Procedure Act 2005 (NSW). As I have said, like the exercise of all procedural powers in relation to proceedings, the power to permit an amendment must be exercised by having regard to the overriding purpose of the Civil Procedure Act and the rules of Court, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 11By the terms of s 57, the Court is to have regard to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposition of the instant proceedings and all other proceedings pending in the Court at a cost affordable by the respective parties. 12In making any order for the management of proceedings the Court is required to act in accordance with the dictates of justice, as I have alluded to already, and s 58(2) sets out a number of non-exhaustive factors which might in any given case be relevant in that regard. 13It seems to me that the issue sought to be raised in the context of the current case does not really involve any great degree of difficulty or complexity. There is no issue in the present case, as I understand it, that the plaintiff has failed to act with due expedition in bringing the matter before the Court for determination. Indeed, the need to make this amendment on the basis of the joint report was referred to by Mr Cranitch in his opening of the case on behalf of the plaintiff on Monday. It is not put that the parties have failed to honour their obligations to assist the Court to further the overriding purpose and the defendants do not argue that the plaintiff has been derelict in that regard. 14It seems to me, so far as I can tell, that the need to make this late amendment has not arisen because of any failure on the part of the plaintiff to take any opportunity available to him under the rules to ascertain prior to the receipt of the joint report that this further treatment was a real possibility which ought to be taken into account in the assessment of the damages. 15In considering the degree of injustice that would be suffered by the respective parties, I bear in mind, as I have said and as I commented yesterday, that the plaintiff is an ordinary member of the community who has suffered a very serious injury about which there is no real dispute as to his entitlement to damages. It seems to me that proceeding on a less than full appreciation of the future probabilities in relation to the progress of his condition would subject him to a significant degree of injustice which would in effect be incurable by any orders the Court could make. 16On the other hand, his exposing the defendants to the necessity to meet an amplified claim for damages without having the opportunity to undertake full investigation is a degree of injustice that could be cured by allowing the defendants an appropriate adjournment to undertake such necessary investigations as they may be advised to follow and by ordering the plaintiff to pay any costs thrown away. Indeed, it was for the purpose of ascertaining whether the first and second defendants would wish to have an adjournment that I deferred deciding the application shortly before the luncheon adjournment yesterday. When the matter resumed Mr Parker made it clear that although his clients were maintaining their objection and were arguing that they were subject to severe prejudice, they would not wish to avail themselves of the opportunity that I was clearly offering, as it were, to allow them the necessary adjournment at the cost of the plaintiff. 17During the course of the further argument yesterday afternoon Mr Parker reiterated his clients' position. In his usual completely fair and frank manner he informed me in response to my question that there was no forensic prejudice that could not be met in this case by granting an appropriate adjournment and by ordering the plaintiff to pay the costs thrown away. 18In these circumstances, although, for the reasons advanced by Mr Parker, there must be a degree of injustice to the first and second defendants in my decision to allow the amendment, it is an injustice that was curable by the grant of an adjournment and costs. The first and second defendants do not wish to avail themselves of that remedy and would prefer that the matter continue this week. In these circumstances, acknowledging that there is a degree of injustice, it seems to me it is not a relevant degree of injustice informing the exercise of my discretion. 19I should also point out that the first and second defendants have always acknowledged during the course of the discussion about this topic during this hearing that on the evidence there may be relevant circumstances that would enliven the application of the principles discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 in terms of the assessment of future probabilities. By that I mean the defendants acknowledge on the evidence I will hear on damages I would be entitled to assess the probability that an above knee amputation will be necessary at some time in the future, the cost of it and the cost of appropriate prosthetics in percentage terms by way of what I would regard, or express, as an uplift in the amount that otherwise might be awarded for the cost of future out of pocket expenses in the present case. 20These were my reasons for making the orders I made yesterday afternoon permitting the amendment.