Elford v Nolan[2014] QDC 257

DISTRICT COURT OF QUEENSLAND

Applications

1. [1]
   There are three applications. An application by the defendants for leave to withdraw admissions pursuant to Rule 188 of the Uniform Civil Procedure Rules 1999 (“UCPR”); and further applications by the plaintiff that the amendments made by the defendants to paragraphs 5, 6 and 7(a) of the Defence be disallowed on the basis that the defendants did not seek the leave of the Court pursuant to Rule 188 of the UCPR prior to the amendments that purported to withdraw the admissions; and that prior to the proceeding being set down for trial, the parties participate in a conference by way of mediation pursuant to Rules 320 and 553 of the UCPR. The latter application provided a panel of three mediators and referred to other procedural steps to facilitate the mediation.

Chronology

2. [2]
   The relevant chronology is as follows:

# 23 April 2010Date of accident

# 14 February 2010 Admission of liability but no admission that plaintiff suffered any injury, loss or other damage

# 28 March 2012Claim and Statement of Claim filed

# 30 April 2012Notice of Intention to Defend and Defence filed

# 16 June 2013Reply filed

# 20 November 2013Change of lawyers acting for the defendants

# 20 February 2014 Review of file undertaken by new lawyer having carriage of the matter for the defendants

# 16 July 2014Amended Defence filed

3. [3]
   A Request for Trial Date was enclosed with the Amended Defence for service on the plaintiff’s lawyers under cover of a letter dated 17 July 2014. The letter has relevance in that the Amended Defence has been filed with, or at, or after and not before, the Request for Trial Date. As I have observed, it has been made without leave of the court. No application for leave has been made. The defendant requires leave of the court to withdraw the relevant admissions: rule 188 UCPR.

4. [4]
   In so far as the Request for Trial Date is concerned, Mr Crow QC for the plaintiff submitted that subject to the disclosure of psychiatric reports (psychiatric injury not being a matter relevant to the current applications), the proceeding is ready for trial. The issue of a mediation is the subject of a second application and I will deal with that shortly, but it does not impact upon readiness for trial per se.

5. [5]
   The issue in the substantive application is that whilst liability is admitted, causation is not. The actual admissions made, of course, deal with the causation of injury and hence quantum of damages.

The incident

The plaintiff was injured in a motor vehicle accident which occurred on the Bruce Highway at Deeragun in Townsville on 23 April 2010. The vehicle was an ambulance. It veered sharply off the road and collided with a water pipe. It had swerved from the southbound lane across the northbound lane onto a grass area where the water pipe was located at about ten metres from the road edge. There were several eye witnesses to the accident.

6. [6]
   The plaintiff was a passenger in the ambulance. For reasons that are unclear, whilst he was being transported to the Townsville Hospital in the ambulance, being semi-recumbent in the rear of the vehicle and receiving treatment from a paramedic, the ambulance driver loss consciousness and/or control of the vehicle and the accident as described occurred.

Liability/causation evidence

7. [7]
   It appears that the plaintiff initially had been treated for an overdose and for exposure. The evidence is to the effect that after the motor vehicle accident he complained of an aggravation of a pre-existing injury - chronic lumbar pain - and of a headache. He had been wearing a collar around his neck and had been vomiting and apparently was not complying with the instructions of ambulance officers. There was also a belief that he may also have potentially suffered a cervical spine injury. His condition varied according to which of the initial reports one refers to but there is no question that there was an immediate complaint of injury after the accident.

8. [8]
   The driver of the ambulance, when he got out of the driver’s seat, checked on those who were in the back of the ambulance and says that “the patient was still on the stretcher”. The ambulance paramedic who was in the rear of the vehicle with the plaintiff said in a statement that after the accident “I noticed the patient had moved slightly in his restraints and was conscious in a semi-recumbent position”. Another motorist who had observed the accident and had stopped to render assistance, said that “the patient seemed to be in place on his stretcher …”

9. [9]
   In a ’Queensland Ambulance Service Motor Vehicle/Traffic Incident Investigation Report’, there is a statement that the “patient care officer was not restrained” and that the “patient was not in full harness restraint – two belts only and fitted on stretcher”.

10. [10]
    An investigation report by Kerrigans states that the claimant “was secured to a stretcher located in the rear of the insured vehicle. The claimant was restrained with a strap around his knee to mid-thigh area and another strap around his abdomen to chest area. The stretcher was securely affixed to brackets on the floor of the vehicle.” 

11. [11]
    In a letter dated 14 October 2010 from the insurer to the plaintiff’s lawyers, the insurer made the following statements (insofar as is relevant):

“As required by section 41(1) (a) of the Motor Accident Insurance Act 1994 (‘MAIA’) we have informed ourselves of the circumstances of the motor vehicle accident in which your client alleges his claim arises.

We advise that based upon the information presently available to us and pursuant to our obligations under section 41(1) (b) of the MAIA we admit liability in full.  We do not admit that your client suffered any injury, loss or other damage as alleged. 

As this admission is made solely for the purpose of our obligation under the MAIA, it is not intended to bind the parties.  Accordingly, this admission should not be construed as an offer and does not constitute a contract between the parties.

Notwithstanding this admission, we expressly reserve our right to rely upon the Limitation of Actions Act 1974 should your client not commence an action for damages for alleged personal injury within the applicable statutory limitation period.”

12. [12]
    In an ‘Employment Details’ form compiled by the insurer, it was reported that the plaintiff had been a casual employee with McDonalds and had commenced employment on 2 February 2010, but after several weeks (in a total of what appears to be nine weeks of employment) he started to not turn up for rostered shifts and his workload was reduced due to his unreliability. By the time of the accident, he was said to have limited shifts. The report states that the plaintiff continually complained about a sore back and that the work was too stressful. At the end of the nine weeks of employment he did not return to work. His last date of payment of wages was 18 April 2010.

Medical evidence

13. [13]
    There does not appear to be a great deal of conflict between medical practitioners about the extent of injury or its description. The medical evidence appears to be consistent in so far as causation is concerned. Medical practitioners consulted by both parties seeming to be of one mind and that is that the reported anatomical injuries having been caused by the motor vehicle accident. However, the mechanism of injury has been described by various persons in competing ways.

14. [14]
    Dr Campbell, neurosurgeon, (for the plaintiff) examined the plaintiff some fourteen months after the accident and diagnosed “a chronic soft tissue and muscular ligamentous injury to the lumbar spine” and assessed a 7% whole person impairment. Of that assessment, 40% was due to pre-existing pathology and therefore 4.2% whole person impairment was due to the accident. In the history Dr Campbell states in his report (dated 10 June 2011) that “Mr Elford was thrown off his stretcher and hit the back of the van. He was not knocked out. Following the accident he complained of left shoulder pain, mid back pain, lower back pain and headaches”. Dr Campbell opined that the fall off the stretcher was consistent with causing a lumbar spine injury.

15. [15]
    Dr Maguire, orthopaedic surgeon, (for the plaintiff) in the history in his report (dated 06 September 2011), stated that “Mr Elford was thrown from the stretcher in the ambulance and he struck his left buttock on the corner of the stretcher and his left shoulder and head struck the rear or side of the internal structure of the ambulance. He states that he is unsure whether he was knocked unconscious but certainly experienced immediate intensity of pain.” Dr Maguire said that the past medical history of the plaintiff included “mild lower back pain”.  He said that the symptomology was consistent with the mechanism of injury described:  that is, the plaintiff “was unrestrained and he was thrown in an uncontrolled fashion from a stretcher in an ambulance.” He attributed 100% of a gluteal injury, cervical spine injury and left shoulder injury to the accident and 60% (40% being pre-existing) to the lower back injury. 

16. [16]
    Dr Gillett, orthopaedic surgeon, (for the defendant) refers to the following history in his report dated 02 August 2011: “Mr Elford was attached to the stretcher. He recalls being thrown out of the stretcher and hitting something on the side of the stretcher.”

17. [17]
    Dr Myers, consultant physician, (for the defendant) in a report dated 17 October 2012 refers to the history as follows: “He recalls being thrown around quite wildly in the back of the ambulance.” Dr Myers report post-dates the admissions.

The admissions

18. [18]
    The defendants in their application seek to withdraw admissions that were made in the Defence, at a time after all of the critical medical evidence (other than that of Dr Myers) had been available for consideration by the lawyers then acting for the defendants. The admissions are not ‘deemed admissions’ but are actual admissions. The plaintiff opposes leave to withdraw the admissions on a number of bases, to which I will refer shortly. The admissions arguably relate to causation, including quantum.

19. [19]
    The relevant paragraphs of the pleadings are paragraphs 9, 10 (a) and 10 (b) of the Statement of Claim and the paragraphs in the Defence that answer the allegations therein, namely paragraphs 5, 6 and 7 (a). Those parts of the pleadings are as follows:

Discussion

20. [20]
    The gravamen of the application is that there are now new solicitors acting for the defendants. They apparently take a different view of the evidence from that which appears to have been taken by the solicitors who were first acting for the defendants. In other words, the current solicitors see things differently to the issue of liability and so far as the quantum issue is concerned, from that taken by the solicitors who originally had carriage of the matter for the defendants.

21. [21]
    In other words, the defendants seek to withdraw the admission that there was a lower back injury, that there was a neck injury, that there was a shoulder injury and that there was the past economic loss for two and a half weeks post accident in the sum stated in the Defence to which I have referred.

22. [22]
    The basis of the current solicitors’ different view to that of the former solicitors, appears to be twofold: that the lawyer who has conduct of the file for the defendants reviewed the file material and formed a view that the injuries could not have happened because the plaintiff was tied to a stretcher at the time of impact and that at the time of the accident the plaintiff was not in full time employment because he was not working full shifts with his employer.

23. [23]
    Admissions made in pleadings are not to be withdrawn ‘for the asking’. The first question in any application such as this is whether there is a genuine dispute about the liability of the defendant in the proceeding. However, where an admission is made and it is sought to be withdrawn, an explanation of how and why the admission came to be made should be given in the material supporting the application: Radolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 445.

24. [24]
    The withdrawal of an admission is subject to leave of the court upon an exercise of discretion. Generally, there are five factors relevant to the exercise of the discretion:

• How and why the admission is made.
• What is the nature of the evidence of and about the issues the subject of the admission.
• Whether there is likely to be a real dispute about the evidence.
• Whether any delay has been made in making the application for leave to withdraw the admission.
• Whether the other party will suffer prejudice.

25. [25]
    Those considerations relevant to the exercise of the discretion were referred to by Margaret Wilson J in Hanson Construction Materials Pty Ltd v Lawless [2010] QSC 034 at [16] and approved in Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246.

26. [26]
    Chesterman JA wrote in Hanson Construction Materials P/L v Davey, a case involving an application to withdraw deemed, as distinct from actual or intended admissions, that:

“It is no doubt true that the UCP Rules are meant to expedite litigation and to limit disputes to issues that are genuinely in contest, but it must, in my respectful opinion, remain the case that the rules do not operate so as to prevent the trial of issues that are genuinely in dispute.”

27. [27]
    So what is the evidence about how and why the admissions were made? An explanation to answer that rhetorical question is clearly required in order for the discretion to be exercised in favour of an applicant: “If an applicant cannot demonstrate that there is a real dispute about the subject matter of the admission no other consideration need be examined”: Hanson Construction Materials Pty Ltd v Davey (supra) per Chesterman JA at [16]. 

28. [28]
    In Hartmann v Pilkington [2012] QSC 254 Margaret Wilson J said at [20]:

“I consider that where a party wishes to withdraw an admission and instead to plead a non-admission, he or she should not usually be given leave to do so in the absence of sworn evidence of enquiries made to find out whether the allegation is true or untrue and the Court being satisfied that those enquiries are reasonable in all the circumstances.”

29. [29]
    Mr Crow QC submitted that the lawyers for the defendants have not adduced any evidence as to how and why the admissions were made. Williams J said at [32] in Radolfi (supra), that “… a clear explanation on oath should be given as to how and why the admission came to be made.”

30. [30]
    The overriding philosophy of the UCPR, expressed in r 5, is a relevant factor: It provides as follows:

“r 5Philosophy – Overriding obligations of parties and courts

3. (1)
   the purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

3. (2)
   Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality in facilitating the purpose of these rules.

3. (3)
   In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way

3. (4)
   The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”

31. [31]
    Rule 5, of course, applies equally to the pleading process as it does to other aspects of a proceeding.

32. [32]
    In Ridolfi v Rigato Farms Pty Ltd (supra) de Jersey CJ wrote at [21], that the rules “cannot be approached on the basis that if important provisions are ignored, even if inadvertently … the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just.”

33. [33]
    As Applegarth J in Hartner v Hynes [2009] QSC 225 wrote at [12] in emphasising the application of the philosophy inherent in Rule 5, wrote:

“Amendments made pursuant to UCPR 378 may not comply with the Rules of pleading or have a tendency to prejudicial delay the fair trial of a proceeding, in which event the court may disallow the amendments on application, or direct a party to further amend the pleadings so as to comply with the Rules of pleading or to avoid such prejudice.”

34. [34]
    In Skalski & Anor v Brown & Anor [2008] QDC 263, Judge Kingham wrote at [7]:

“Those objects [in section 89 of the District Court of Queensland Act 1967] indicate a legislative intention to promote timely resolution of disputes in reducing the costs of and delay of oral hearing where appropriate. This is consistent with the court’s overriding obligation to apply the rules so as to avoid undue delay, expense and technicality and to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense” (rule 5 of the UCPR).

35. [35]
    In this case the application for leave to withdraw was made more than two years after the Notice of Intention to Defend and Defence was filed. That delay is significant but nevertheless unexplained.

36. [36]
    Further, the Notice of Intention to Defend and the Defence containing the relevant admissions was made some eighteen months to two years after the conclusion of relevant investigations conducted on behalf of the defendants.

37. [37]
    All that is said with respect to the making of the admissions and the application now to withdraw them, is that a second solicitor having conduct of the relevant file has formed a different view to that of a first solicitor who earlier had conduct of the file, with respect to the causation of injuries alleged to be suffered by the plaintiff. All of the medical evidence, putting aside the report of Dr Myers, support the causal link between the various injuries described in the plaintiff’s pleading, (particularly the lumbar spine injury, cervical spine injuries and the soft tissue injuries of the left shoulder) as being consistent with having been caused by the accident. There is no medical evidence to suggest to the contrary.

38. [38]
    The issue of prejudice is dealt with by the defendants on the basis of a simple contention to the effect that the plaintiff will not be prejudiced by the withdrawal of the admissions. There is no support for that statement. It seems to me that prejudice to the plaintiff is real and readily identifiable. It is four years since the accident occurred. The medical evidence, the investigations made on behalf of the defendants and the formal admissions, now sought to be withdrawn, occurred early in the proceeding and the plaintiff has not had to factually investigate any matter relating to causation. To the extent that there are inconsistencies in the Queensland Ambulance Service documents, the observations of witnesses and the history provided to the medical practitioners are concerned, those inconsistencies would now have to be investigated, long after the incident, in order to provide an answer to or clarification of them, including by reference to other persons who were eye witnesses at the time of the accident but who have not been required to give an account of what they saw or heard in respect of the accident. Their recollections may well be significantly affected by the passage of time and particularly by the lack of interest of any party in enquiring as to their view and their recollection in the intervening period.

39. [39]
    To the extent that there may be some issue about whether the plaintiff was lying down on the stretcher or was in another postural position and the implication that he was not restrained on the stretcher is concerned, there is at least a statement by one ambulance officer that the plaintiff was not lying down (flat) at the time of the accident but “had moved slightly in his restraints and was conscious is a semi-recumbent position”.  

40. [40]
    Those matters it seems to me profoundly demonstrate significant prejudice to the plaintiff by reason of the delay.

41. [41]
    There does not seem to me to be any dispute that the defendant conducted a full factual investigation and obtained expert medical evidence, prior to any admissions being made. Why the admissions were made remains unclear and the evidence on this application goes no further than that a second solicitor has formed a different view about the relevant evidence from that of the first solicitor. I do not consider that there is any support for that different view, although ultimately that might be a matter for trial. However, I make that statement simply on the assessment that I have conducted for the purpose of preparation of this judgment.

42. [42]
    The admissions were made consciously and in circumstances where the defendants were in possession of all of the relevant material upon which a decision to make admissions could be made. I regard the admissions as having been made formally and on an informed basis by the defendant. See the observations in Green v Pearson [2014] QCA 110 at [34]; in Candy v GIO General Limited [2013] NSWSC 810 (the latter to a similar effect); and in Pollock v Thiess [2014] QSC 22, per McMeekin J at [36].

In Valmaves v Smith & Anor [2008] QSC 150 Martin J gave leave to the plaintiff to withdraw an admission made in a Reply with respect to percentage contributory negligence in a personal injuries proceeding and distinguished Radolfi on the basis that in that case there was an application to amend (by withdrawal of a deemed admission) arising from a failure to answer a relevant notice. His Honour said that the proceeding had not yet reached the point where a trial date had been given or a request a trial date had been filed. He said at [32] that:

“… the issue of contributory negligence would still be able to be ventilated whether or not this amendment was allowed. The pleaded case of the applicant includes an allegation of contributory negligence and there was no submission to the effect that the defendants would be satisfied with the finding of contributory negligence of 25% based on the current admission. By allowing the amendment there will not be a substantial departure from the pleaded case so far as questions of contributory negligence are concerned.”

43. [43]
    His Honour referred to State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, wherein an amendment was sought and allowed (on appeal) in respect of an application for leave to amend a defence to deal with an inconsistency or discrepancy in the pleading.

The mediation

44. [44]
    In so far as the application for the appointment of a mediator is concerned, it is a matter for the court to determine.

45. [45]
    The parties under correspondence dated 10 October 2014 jointly brought to my attention some further authority for a request that I consider this in the course of preparing the judgment and I have done so: Hayes v Garutti (unreported judgment, Baulch SC DCJ, 26 September 2014); and Wade v Gargett & Anor [2010] QDC 27.

46. [46]
    In Hayes v Garutti, Judge Baulch SC on an application seeking orders for a mediation, referred to Rule 5 of the UCPR and dismissed a concurrent application by the defendant for a trial date on the basis that the request for trial date was deficient in that it was not signed on behalf of the defendant. So far as the plaintiff’s application for an order for mediation is concerned, his Honour stated that “mediation has become an integral part of the court adjudication processes and it has come to be recognised that an independent third party could bring a different perspective into such procedures and bring about a settlement even between parties who seem hell bent on litigation.” His Honour considered that whilst one or other of the parties may not have wished for a mediation, it was nevertheless appropriate to make the orders sought. The plaintiff’s application was granted and the defendant was ordered to pay costs on the standard costs in respect of both applications.

47. [47]
    In Wade v Gargett, Judge Irwin dismissed an application by a plaintiff for an order for mediation and discussed the factors relevant to the exercise of discretion by the court.  In particular, his Honour considered what might occur where one party did not consent to a reference to mediation.  He said that the reluctant party’s attitude to mediation was not determinative of the application and referred to the overriding philosophy in the Rules, but nevertheless on his assessment of the facts and circumstances of that case did not consider it appropriate to order that the matter be referred to mediation.  It is not necessary for me to refer to the reasons in that case for the purposes of this judgment.

Conclusion

48. [48]
    In the circumstances described above and in the absence of any acceptable reason for the admissions having been made, either incorrectly or inadvertently or any new evidence that might compel a decision in favour of the application, and the prejudice to the plaintiff, the defendant’s application to withdraw the admissions must fail.

49. [49]
    I consider a mediation to be a proper further step to take before any trial date is allocated in this matter. Hence the Request for trial date is struck out.

50. [50]
    I will simply give the parties liberty to apply for directions as to the appointment of a mediator and the necessary logistical steps required for the mediation to be conducted.

Orders

1. Application to withdraw admissions in the Defence refused.
2. Paragraphs 5, 6 and 7 (a) of the Defence are disallowed and the Amended Defence is struck out
3. The parties have liberty to apply on five days notice with respect to the issue of appointment of a mediator.
4. The defendant is to pay the plaintiff’s costs of the applications assessed on the standard basis.