- Unreported Judgment
- Appeal Determined (QCA)
Edwards v Romaguera & Anor  QCA 16
DONALD GERARD PATERSON EDWARDS
Appeal No 3957 of 2015
SC No 6069 of 2012
Court of Appeal
General Civil Appeal
Supreme Court at Brisbane – Unreported, 24 March 2015
9 February 2016
4 September 2015
Holmes CJ and Margaret McMurdo P and Gotterson JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
PROCEDURE – where the appellant brought an action for damages for personal injuries – where the appellant’s application to an applications judge for leave to amend his statement of claim was refused – where the appellant contended on appeal that the hearing of the application should have been adjourned by reason of his ill health and disadvantage as an unrepresented litigant – where no application was made for an adjournment at first instance – where the application had previously been adjourned – whether the application judge erred in refusing an adjournment
PROCEDURE – where the appellant brought an action for damages for personal injuries – where the appellant’s application to an applications judge for leave to amend his statement of claim was refused – where a request for trial date had already been signed – where an amendment in relation to loss of ability to earn income would have necessitated the attainment of further medical and accounting evidence – whether other proposed amendments were adequately particularised or necessary – whether the applications judge erred in refusing to grant leave to amend the appellant’s statement of claim
PROCEDURE – where the appellant brought an action for damages for personal injuries – where the appellant applied for an order for reimbursement of costs under ss 42(1) and 52(1) of the Motor Accident Insurance Act 1994 (Qld) – where the appellant contended that the applications judge should have examined every head of expense with him in the course of the hearing – where the order sought reimbursement of the costs of future treatment – whether the application was misconceived – whether the applications judge erred in refusing the application
Motor Accident Insurance Act 1994 (Qld), s 42, s 50, s 51
Motor Accident Insurance Regulation 2004 (Qld), r 22
Uniform Civil Procedure Rules 1999 (Qld)
Re Walker (1995) 22 MVR 245;  QSC 186, considered
S C Fisher for the appellant (pro bono)
M J Drysdale for the respondent
No appearance for the appellant
Bray Lawyers for the respondent
 HOLMES CJ: The appellant brought an action for personal injuries arising out of a motor vehicle accident. Liability was admitted. He appeals against the refusal of applications for leave to amend his statement of claim and for the reimbursement of certain costs claimed pursuant to the Motor Accident Insurance Act 1994 (Qld).
The appellant’s claim
 The motor vehicle accident in question occurred in 2009. The claim and statement of claim were filed in July 2012. In his statement of claim, the appellant alleged that he had been injured when his vehicle and another immediately behind it had stopped in response to an accident ahead of them; a second following vehicle had failed to do likewise, colliding with the vehicle behind the appellant’s, and pushing it into the rear of his vehicle. The appellant alleged that he had suffered soft tissue musculo-ligamentous injury to his spine and aggravation of a pre-existing knee problem and a chronic adjustment disorder. He claimed past economic loss of not less than $220,000.00 and future economic loss of not less than $845,000.00 in relation to the effects of his injuries in precluding him from returning to self-employment in the business of selling and operating real estate franchises and rendering him unable to undertake renovation activities on properties in order to sell them at a profit.
The application for leave to amend
 Because a request for trial date had been filed (on 24 February 2014), by virtue of r 380 of the Uniform Civil Procedure Rules 1999 (Qld), any amendment to the pleadings could be made only with the leave of the court. The appellant filed an application seeking leave to amend the statement of claim on 10 December 2014, and it was first before the court on 7 January 2015. On that occasion, the appellant, who was unrepresented, had not filed any affidavit exhibiting the proposed amendments, but handed up a draft to the court. The applications judge noted that there was a proposed amendment which alleged aggravation of pre-existing injuries, with consequences for the appellant’s earning of income as a golf professional. It was necessary, his Honour observed, that the intended amendments be made clear. An adjournment was granted on the basis that the appellant would seek assistance from QPILCH for the formulation of his amendment.
 The matter was back before an applications judge on 24 March 2015. The appellant, again unrepresented, filed by leave an amended application in which he relevantly sought to make the following amendments:
“1.That the Plaintiff be granted leave to amend the statement of claim, pursuant to rule 380 of the Uniform Civil Procedure Rules, 1999 (‘UCPR’) in order to amend the statement of claim so as to include claims for special damages which are necessary to return the Plaintiff to the position he would have been in had the accident not occurred, in the following ways:-
a)deleting paragraph 3(h) of the Statement of Claim and substituting same with, "a Nissan Maxima ('the Nissan') which had been travelling directly behind the black Suzuki, did not stop;
[b) and c) were allowed and thus were not contentious here.]
d)amending paragraph 6 to speak to the fact that the Plaintiffs ability to earn from golfing has been eliminated because he suffered reduced flexibility by severely restricting his ability to rotate the shoulders/neck while restricting the hips thus adversely affecting his turn in the backswing as a professional golfer, causing severe pain lower back and knee as these previously unpressured areas were now being used so create the swing along with the necessary renumbering;
e)amending the entire claim for relief so as to reflect the special, economic and general damages being sought.
2.That the Plaintiff be granted leave to amend the statement of claim, pursuant to rule 380 of the Uniform Civil Procedure Rules, 1999 (‘UCPR’) in order to amend the statement of loss and claim so as to include particulars of amounts claimed for special, economic and damages which are necessary to return the Plaintiff to the position he would have been in had the accident not occurred, in the following ways:-
a)Amending paragraph 6 of the Statement of loss and damage to speak to
(i)Report of Dr. Don Todman, dated 9 October 2014;
(ii)Expert Witness Report of Jason Gehrke, Director Franchise Advisory Centre; and
(iii)Physiology Report of Stephen Bofinger, Sunshine Central Medical [and Diagnostic] Centre dated 2 March 2015
b)Amending paragraph 5 of the Statement of Loss and Damage to speak to
(i)Dr. Don Todman, 79 Wickham Terrace, Brisbane
(ii)Steven Bofinger, 7 Nicklin Way Minyama P.O. Box 119, Buddina 4575 and
(iii)Jason Gerhrke, P.O. Box 15304, Brisbane.
c)Amending paragraph 4 to include "As a consequence of the accident, the Plaintiff was unable to give attention to his franchises in order to have them reach their full earning capacity, which has led to an estimated loss of $1,024,280 as at June 30, 2014 and an estimated future loss of $4,008,052 projected at June 30,2038."
d)Amending the mentioned paragraphs in such a way as to ensure the additions flow numerically.”
 The appellant provided a copy of a proposed amended statement of claim and an amended statement of loss and damage, which – despite indications to the contrary on the hearing of the appeal and their omission from the appeal record – were made exhibits one and two on the application. The proposed amended statement of claim made no reference to the vehicle’s failing to stop, or to the new claim for loss on the franchise business, but it contained this addition:
“The plaintiff was a professional golfer and his ability to do so and earn from it has been severely restricted and is never expected to return to that level unless he receives intensive rehabilitative treatment”.
The appellant sought also to amend the prayer for relief in a number of respects, including the addition of a claim for
“general damages for past and future gratuitous services and future loss of earning capacity in the sum of not less than FOUR MILLION DOLLARS $4,000,000.”
 The amended statement of loss and damage contained a reference to the appellant’s career as a golf professional and also included figures for income which the appellant said he would have earned but for the accident: from his franchise businesses ($1,008,521.00); or, alternatively, from employment as a real estate agent ($738,461.00); or from teaching golf professionally ($611,446.00). There was in addition, a claim for future economic loss at a minimum of $664,035.30 with an alternative figure of $4,000,000.00 in losses said to be anticipated from the appellant’s inability to give full attention to his franchise businesses.
 The appellant did not provide any affidavit material to support or explain the basis of the claim for the loss of earning capacity added to the prayer for relief in the statement of claim (or the amounts included in the proposed statement of loss and damage). However, in response to questioning by his Honour, he said that he had been a professional golfer for some 22 years, having won prizes, given golf lessons and sold golf equipment. His plan had been that he would use the profits from his franchise business to enable him to play golf on the US tour. It was the fault of his solicitors that the claim had not been made previously and he had been in the past too unwell to notice the omission, but had since improved dramatically with chiropractic care. Asked whether he had put any material together to provide to the respondents about his career as a professional golfer and the sources of his earnings from prize money, teaching and otherwise, the appellant said that the respondents already had the material, in his tax returns and a report from Vincents (chartered accountants who had provided an expert report).
 The solicitor for the respondents informed the applications judge that the Vincents report did not contain any claim for economic loss in that respect and there had now been a joint report of the accountants for either side, which showed no income from golf. He had been given a copy of the proposed amendment that morning. He pointed out that it was over a year since the request for trial date had been filed and that the matter had been subject to case flow management, in the course of which the joint experts had had meetings and provided joint reports. His concern was that amendment at that point might well require further medical evidence and accounting evidence.
 The applications judge informed the appellant that he would give leave to make the amendment only on terms that the appellant met the costs of investigating the late claim; the appellant confirmed that he could not do so. However, he volunteered,
“The main reason I am adding the golf professional part of it is for the rehab for my golf swing”.
 The applications judge refused the application for leave to amend the statement of claim. His Honour noted that the appellant’s claimed restriction in his ability to earn income from golfing was asserted for the first time in the proposed amendments. The explanation as to why it was not previously pleaded was inadequate; a request for a trial date had been signed; and the appellant was subject to an implied undertaking to conduct the matter with reasonable expedition with a view to minimising expense. He had done little by way of giving particulars to identify how it was that he would pursue a career as a professional golfer. To allow the proposed amendments would be further to delay a proceeding which had already been delayed. The appellant had had experience at representing himself and knew enough about pleadings to understand that an assertion of the kind sought to be pleaded now should have been properly pleaded and particularised. There would be consequential costs of the experts’ revisiting the question of loss of income. There was no prospect of the appellant’s meeting a costs order which would protect the respondents against the additional costs. His Honour declined to give leave for the amendments.
 As already noted, the amended statement of claim did not contain the allegation referred to in the application for amendment, that the vehicle travelling behind the appellant’s had not stopped. The applications judge enquired whether that change was to “throw some whole new view on the accident”; the appellant explained that he was “just tidying up the errors”. Questioned again about why there was a need to amend to that effect, he reiterated that he was “just tidying up”. The applications judge ruled that there was no need to tidy up in a way which would simply put the respondents to extra expense, and refused leave to make that amendment.
 The amendments sought to the prayer for relief included a number of claims for damages in various amounts, including that for $4,000,000.00 in general damages, which were unparticularised anywhere in the statement of claim as it stood either before or after the proposed amendments. The appellant explained that he was “a bit confused” when he wrote it. The applications judge said that he would not allow the amendments to the prayer for relief because they had not been explained. He refused leave to amend in that respect.
 The proposed amendments in paragraph 2 of the application to amend (including the newly-claimed economic loss in relation to the franchise business) referred to paragraphs of the statement of loss and damage, to change which, as the respondents’ solicitor pointed out, did not require leave: it did not form part of the pleadings. The applications judge enquired of the appellant why he had not put in a proposed amended statement of claim aligning with the changes he wished to make to his statement of loss and damage. The appellant said he had no answer. His Honour asked what confidence he could have that the appellant would be able, if given the opportunity, to amend the statement of claim to include particulars of the special damages, economic loss and general damages that he was now seeking. The appellant raised the prospect that he might over the next four or five weeks earn enough money to enable him to retain a lawyer to make the changes. The applications judge said that he would not give the appellant leave to do something that there could be no confidence of his being able to do before the next review of his case; but he pointed out that if the appellant wished to bring another application, he should do so sooner rather than later.
The appeal against the refusal to grant leave to amend
 The appellant advanced these grounds in respect of the refusal of leave to amend:
- The learned trial judge erred by not allowing the appellant to amend his statement of claim in circumstances where the respondents had ample notice that the appellant intended to claim for those sums sought.
- The learned judge erred by not granting the appellant an adjournment when it was (or ought to have been) apparent that the appellant was not well and able on the day of the hearing to present the appellant’s argument.
- The learned trial judge erred by not considering the principles set out in para 5.3 of Practice Direction 10 of 2014 in considering the appellant’s application.
 On the appeal, the appellant was represented by Mr Fisher of counsel, who appeared pro bono, rendering the court very considerable assistance. He submitted, not that the applications judge should have granted the appellant leave to amend in terms of the application or draft statement of claim, but that his Honour should have appreciated that the appellant was both unwell and disadvantaged as an unrepresented litigant, and adjourned the application. His Honour should have appreciated that the appellant wanted to narrow his application, so far as the claim for loss arising out of his inability to work as a golf professional was concerned, to one for rehabilitation expenses, and should have adjourned to allow the appellant to formulate an appropriate amendment.
 The only matter that the appellant’s counsel pointed to as indicating that the appellant was encountering any physical difficulty related to a discussion with the applications judge as to why he had not identified any prize money he might have ever won in the past. The appellant said that he had made more money teaching and selling golf equipment. The applications judge proposed an assumption that prize money might be in the region of $50,000.00. At that point, the appellant interrupted to say he was confused because, in his view, the sources of income for a golf professional were playing, teaching and selling golf equipment. On appeal, his counsel referred to his remark about being “confused” as indicating that he was experiencing difficulties arising out of mental illness.
 Counsel also relied on the written submissions of his client. In those, the appellant pointed to two reports of his treating psychiatrist. They were exhibited to an affidavit which was before the original applications judge, although there is no indication that it was relied on before the judge from whom this appeal is brought. Those reports are before us; the first, from 2011, speaks of the appellant’s having a major depressive disorder, and the second, from April 2013 is expressed in the past tense and describes him as having “suffered from a Major Depressive Disorder of at least moderate severity”. At that stage he is said to have reported that medication had been helpful.
 Counsel also adverted to Practice Direction No 10 of 2014, which concerns the supervised case list for self-represented parties and, in particular, the purpose of the supervised case list identified in para 3 of the Practice Direction. They include:
- “Using the benefits of more intensive supervision to ensure that cases involving a self-represented party can be dealt with efficiently;”
- “Minimising the risk and costs of the trial being adjourned;”
- “Ensuring that at trial the parties focus on the real issues genuinely in dispute”.
Counsel argued that those aims would have been met by adjourning the appellant’s application for leave to amend so as to permit him to refine his proposed amendments.
 Somewhat inconsistently with the oral submissions, the appellant’s written submissions asserted that the applications judge’s error lay in the failure to allow his amendments. He complained that he should have been permitted to allege that the car behind him did not in fact stop, contrary to the current pleading, and to claim loss of income from his franchise business, because, it was argued, there was evidence of the existence of a franchise business and a report concerning it. Although the amendment to the statement of claim had referred to loss of income as a golf professional, his reference to wanting “rehab to [his] golf swing” should have made it clear to his Honour that what was sought was the cost of golf lessons, golf equipment and training to restore his swing to its former standard, and an amendment to that effect should have been permitted.
 Given the age of the psychiatric reports to which the appellant referred in submissions, they are unlikely to have assisted the applications judge to a conclusion that the appellant was, in 2015, incapable of proceeding with his application. There is nothing in the transcript of the hearing below which indicates that the appellant was at any stage unable to continue. He was loquacious throughout the application, and it is noteworthy that he indicated to his Honour that he was presently working as a real estate agent.
 The practice direction is concerned with case management, reviews and the making of orders at review hearings; so it is doubtful that it can have anything to say about applications by self-represented litigants in general. In any event, his Honour considered the possibility of adjourning the matter and expressed his doubt, which in light of the history of the appellant’s application was undoubtedly well-founded, that matters would be improved by adjourning.
 In circumstances where: no adjournment was sought; the matter had previously been adjourned to permit the appellant to formulate the very amendment which was the subject of the application; and a request for trial date had been signed, there could be no rational basis for the applications judge, of his own volition, to adjourn the application, to allow the appellant to make a further and different application for amendment.
 The appellant’s disavowal of any claim to loss of income as a golf professional makes it all the more clear that the amendment as drafted, which was concerned with loss of ability to earn income, was properly refused. The attempt to claim as damages the cost of golf lessons, golf equipment and training could not be made in the abstract; it could only turn on their necessity to the appellant’s regaining his golfing ability in order to earn income. That in turn would require, as the judge observed, the obtaining of further medical and accounting evidence at a stage when the request for trial date had already been signed.
 The other proposed amendments, concerning the way the accident happened and the newly-calculated economic loss from the franchise business, were proposed to the statement of loss and damage, not to the statement of claim. In any case it is difficult to see why amending the pleading in relation to the accident, as opposed to notifying the respondents of the purported error, was necessary, given that liability was admitted. The question at any trial, should the appellant seek to present a different account from that in the pleading, will no doubt be as to how the mistake came about and when he sought to correct it. The last is now on record. The amendment in relation to economic loss on the franchise business had not been particularised in any form which would have been adequate to inform the respondents of the material facts relied on. Indeed, the amendment, had it been transposed to the statement of claim, would have conflicted with other parts of it.
 I do not consider that any error has been shown in his Honour’s exercise of discretion against granting leave to amend the statement of claim; nor was there any basis on which his Honour could properly have adjourned the application.
The application for payment of expenses
 The appellant also applied for “reimbursement of costs”, purportedly under both s 42(1) and s 51 of the Motor Accident Insurance Act. The former section provides:
“42Payment of medical expenses etc.
(1) Once liability has been admitted, it is the duty of the insurer to make payments to or for the claimant for private hospital, medical and pharmaceutical expenses reasonably and appropriately incurred because of the injury or a proportionate part of the expenses reflecting the extent of the insurer’s responsibility (assuming the claimant to be guilty of contributory negligence as asserted by the insurer).
Section 50(2) of the Act enables a claimant to seek an order from the court requiring an insurer to remedy any default in compliance with a duty, including that imposed by s 42(1).
 Section 51(3) of the Act requires an insurer who has admitted liability to
“ensure that reasonable and appropriate rehabilitation services are made available to the claimant”
while s 51(5) enables the claimant to apply to the court
“to decide what rehabilitation services are, in the circumstances of the case, reasonable and appropriate”.
The appellant made claims for payment of a variety of costs, including the cost of: a back support; a TENS machine and its replacement; chiropractic treatment, past and future and costs of travel to the chiropractor; and sessions with a personal trainer twice per week, past and future.
 The application for those and other costs was initially made to an applications judge in late November 2014. The items which the appellant was then claiming were listed in a document marked Attachment “A” annexed to an affidavit filed by the appellant. The second respondent, the insurer, said that of the various amounts sought, it was prepared to pay the costs of the appellant’s consultations with a psychologist. A number of other claimed costs were rejected by the judge, who adjourned the application, so far as it concerned the matters I have listed, for consideration by the insurer.
 That part of the application was brought back before the applications judge dealing with the application for leave to amend the statement of claim. The second respondent put on material as to its consideration and refusal of the amounts sought. The back support and TENS machine and replacement had not been recommended by the orthopaedic specialists who had examined the appellant, and there was no evidence to support their efficacy; in respect of the chiropractic treatment and personal training, the orthopaedic specialist retained by the second respondent had advised that the appellant was at “maximum medical improvement”, which indicated that it was not reasonable that further treatment or personal training be provided; in relation to the personal training, it was also noted that the appellant’s pre-existing impairment (of the lumbar spine) made it inappropriate.
 The respondents’ solicitor in his submissions to the applications judge made a number of other points: that no receipts had been provided for the back support, replacement TENS machine or cost of the personal trainer, as r 22 of the Motor Accident Insurance Regulation 2004 required; that the back support, TENS machines and personal trainer costs did not fall within the expression “private hospital medical and pharmaceutical expenses” in s 42; and that none of the expenses claimed were “reasonably and appropriately incurred”, because there was no expert medical evidence that the items, treatment and training were required to treat the appellant’s injuries, and none of the medical experts who had examined him had recommended them.
 The future expenses in the form of future chiropractic care and personal training could not be claimed under the Motor Accident Insurance Act. Nor did such treatment and training constitute “reasonable and appropriate rehabilitation services”, because the opinions of the orthopaedic specialists who had examined the appellant were that he had reached maximum medical improvement, so there was no prospect of their producing symptom improvement. In fact, the orthopaedic specialists had respectively given their opinions that the appellant was “not a candidate for further treatment … except for self-exercise such as gym work” and that his treatment should consist of “conservative management including common sense, gentle exercises, and analgesics”. A neurologist had, in response to a question concerning chiropractic treatment, recommended fortnightly physiotherapy and a supervised gym programme for 12 months; which suggested that he did not advocate chiropractic treatment.
 The applications judge asked the appellant to address the second respondent’s submissions that no receipts had been provided for some of the items and that there had been no recommendation by a doctor for any of them. His Honour adjourned the application for 25 minutes so that the appellant could identify the evidence which supported his claims. On resumption of the hearing, the appellant informed the judge that he had a picture of his back brace. His Honour went through with him whether any of the doctors had actually recommended a back brace, TENS machine, chiropractic treatment or personal training. In addition, his Honour raised with the appellant the fact that the orthopaedic specialists had indicated he was at maximum medical improvement, so that there was no benefit to future personal training.
 The answers to whether any specialist had recommended the various devices, treatment and training were negative, except in relation to the last; the appellant informed the judge that an occupational therapist and a physiotherapist had said he would benefit from personal training. The applications judge examined the physiotherapist’s report, which did not in fact refer to personal training but said that the appellant required a short period of intensive physiotherapy and “exercise rehabilitation”. His Honour refused the application for the reasons given by the respondents’ solicitor.
The appeal against the refusal of the claims for payment
 The appellant’s appeal grounds in this respect were as follows:
- The learned trial judge erred by failing to have sufficient regard to the principle that the right to claim compensation under the Motor Accident Insurance Act 1994 and in particular in s 51, is to be construed beneficially from the perspective of a claimant (such as the appellant)
- The learned judge erred by not granting the appellant’s application for compensation under ss 51 and 42 of the Motor Accident Insurance Act.
 The appellant argued that the applications judge should have realised that the appellant, because of his state of confusion, did not have the capacity himself to point out the relevant items of material and should have gone through each area of expense with the appellant. In Re Walker, Moynihan J, in dealing with an application under s 51 of the Motor Accident Insurance Act, had considered in turn each aspect of the plaintiff’s claim in order to consider whether services and items sought were reasonable and appropriate. The applications judge in this case had not done so and had not adequately explained why the various items were refused. On the question of the need for personal training, it was said, his Honour should also have had regard to a “testimony” from the appellant’s personal trainer. (That gentleman, who described himself as “a friend and qualified fitness trainer”, had outlined in very general terms a training regime.)
 In fact, the applications judge went through the respondents’ submissions with the appellant and gave him the opportunity to identify: any copies of receipts; any expert medical evidence as to the treatment being required; and any recommendation for chiropractic treatment or personal training. None was identified. Nor did the appellant offer any answer to the fact that the orthopaedic specialists considered that his physical rehabilitation had gone as far as it could. There is nothing to suggest that the fitness trainer had any expertise in rehabilitation from injury and it is extremely unlikely that specific reference to his document would have assisted his Honour; assuming of course that he did not, in any event, see it. It is not clear whether the occupational therapist’s report to which the appellant adverted was actually before his Honour, but in any event it said that he “would benefit from a gym-based exercise program”, which falls somewhat short of proposing a personal trainer.
 The application so far as it concerned the cost of future treatment and sessions was entirely misconceived. The Motor Accident Insurance Act contains no provision for payment of future expenses in advance of trial, and s 51 is not concerned with “compensation”. There was no evidence to support the provision of any particular form of rehabilitation service, and no question of construction of the Act, beneficial or otherwise, arose. Nor was anything put before the trial judge which warranted payment of the expenses which the appellant identified.
 After his review of the issues with the appellant, the applications judge’s refusal of the application, for the reasons given by the respondents’ solicitor was adequately explained. There was no error in his refusal of the application.
 I would dismiss the appeal and order that the appellant pay the respondents’ costs.
 MARGARET McMURDO P: I agree with Holmes CJ’s reasons for dismissing this appeal with costs.
 GOTTERSON JA: I agree with the order proposed by the Chief Justice and with the reasons given by her Honour.
 (1995) 22 MVR 245.
- Published Case Name:
Edwards v Romaguera & Anor
- Shortened Case Name:
Edwards v Romaguera
 QCA 16
Holmes CJ, McMurdo P, Gotterson JA
09 Feb 2016
|Event||Citation or File||Date||Notes|
|Notice of Appeal Filed||File Number: 3957/15||21 Apr 2015||SC6069/12|
|Appeal Determined (QCA)|| QCA 16||09 Feb 2016||-|