Lambert v Webber[2021] QDC 312

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff has sued the defendant for damages for medical negligence in a claim filed in August 2018. Extensive amendments to the statement of claim were made in September this year. By an application filed on 28 October 2021, the defendant seeks an order that several paragraphs the subject of the amendments be struck out.  The application is made in reliance on r 376 of the Uniform Civil Procedure Rules 1999 (‘the UCPR’). It is submitted that the offending paragraphs plead a claim in trespass, which is a new cause of action for which the limitation period has expired. In these circumstances it is said that leave is required. The defendant contends that such leave should not be given.  
2. [2]
   A cross application was filed by the plaintiff on 1 November 2021. It is related to the defendant’s application, in the sense that an order is sought striking out paragraphs in the amended defence in response to the claim in trespass. In the alternative, the plaintiff seeks leave pursuant to r 376 of the UCPR. This is on the bases that the amendments arise out of substantially the same facts as pleaded in the original statement of claim and they do not prejudice the defendant.  
3. [3]
   There was no relevant dispute between the parties as to the procedural law by which the applications should be resolved.  The contention has centred around whether the claim in trespass is a new cause of action for which leave is required and if so, whether leave should be given.

Relevant background

4. [4]
   The defendant is an oral and maxillofacial surgeon. The plaintiff’s claim for damages against him relates to dental treatment he provided to the plaintiff, involving the surgical extraction of two teeth on 6 and 26 August 2015 respectively. The plaintiff alleges that he suffered personal injuries as a consequence of the extractions.
5. [5]
   The plaintiff embarked upon the pre-litigation procedures required by the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’).  On 1 August 2018 a claim and statement of claim were filed in which he claimed damages for personal injuries suffered by him because of the defendant’s negligence and breach of contract in extracting the two teeth.  The causes of action were pleaded to have arisen in the pre-operative period.  They relate to the assessment, diagnosis and investigations undertaken in relation to the plaintiff’s reported symptoms, and in the advice provided to him to have the teeth extracted when such extractions were not required.  
6. [6]
   The proceedings were commenced shortly prior to the expiration of the three year limitation period.  They were initially stayed pending completion of the PIPA pre-litigation procedures.   The defendant filed a defence on 5 June 2020.  Consent orders were made by the Acting Deputy Registrar on 18 August 2021.  These included an order that the plaintiff file and serve an amended statement of claim by 30 August 2021, subject to any requirement for the leave of the Court pursuant to r 376 of the UCPR.  The time for filing the amended statement of claim was extended until 22 September 2021.  It was filed on 2 September 2021.

Applicable principles and analysis

7. [7]
   There are several mandatory obligations in the UCPR dealing with the content of pleadings, including:

1. (a)
   by r 149(1), each pleading must contain a statement of all the material facts upon which the party relies, and state specifically any matter that if not stated specifically may take another party by surprise;
2. (b)
   r 150(1) stipulates matters that must be specifically pleaded, including intention or others including knowledge or notice; r 150(1)(k);
3. (c)
   r 157 provides that a party must include sufficient particulars to prevent surprise at a trial.

8. [8]
   Pursuant to r 376 of the UCPR, leave is required to include a new cause of action if the relevant limitation period was current when the proceedings were commenced but has since expired. While the discretion to permit an amendment is broad, it is subject to both criteria in subsection (4)(b).  These are that the court considers the new cause of action arises out of substantially the same facts as the causes of action for which relief has already been claimed, and that the amendment is appropriate.  
9. [9]
   The defendant contends that paragraphs 42 to 44 of the amended statement of claim plead a claim in trespass to the person. It is said that this is a new cause of action which requires the leave of the court pursuant to r 376. Such leave has not been obtained.  It is contended by the plaintiff that leave of the court is not required as the claim in trespass is not a new cause of action. 
10. [10]
    The heading relevant to the allegations in paragraphs 42 to 46 of the amended statement of claim is “trespass to person”. At the oral hearing, counsel for the plaintiff submitted that the claim for trespass was in the original pleading and that the effect of the amendments was to “put in a heading”. A review of the amended pleading does not support this. 
11. [11]
    The first question is whether the effect of the amendment is to include a new cause of action.  The term “cause of action” has been defined as the combination of facts which are material to be established for the plaintiff to succeed.^[1] Questions of degree are necessarily involved in identifying the dividing line between an amendment which introduces a new cause of action and one which does not.  In resolving this issue, a critical or pedantic reading of the pleading is not required.^[2]
12. [12]
    While the claim in trespass arises out of the same general narrative as that which had been pleaded as relevant to the claims in negligence and contract, it cannot be described as some further particularisation of the original claims.  It introduces a new foundational pathway for proof of the claim.  The plaintiff’s focus on the fact that the claim arises out of the same two teeth extractions undertaken by the defendant in August 2015 is too broad.  It fails to pay the appropriate attention to the fact that in substance, the allegations pleaded prior to the proposed amendments were not apt to alert the defendant that the case made against it comprehended a claim in trespass.  In other words, the facts previously pleaded gave no hint that the plaintiff was contending for findings to support a claim in trespass.  I am persuaded that the effect of the subject amendments is to introduce a new cause of action. 
13. [13]
    It is not in contention that the new claim in trespass is statute-barred but was not when the proceedings were commenced on 1 August 2018.  In these circumstances the plaintiff seeks leave under r 376(4) to amend the statement of claim to plead trespass.  Any new cause of action must require some different material fact or facts.  This rule expressly contemplates that the new cause of action may arise out of substantially the same facts as the causes of action in negligence and contract for which relief had already been claimed in the original pleading. It is submitted by the defendant that it does not.
14. [14]
    The fact that there is a change in focus with the provision of further factual details does not of itself have the consequence that a new cause of action arises out of facts that are not substantially the same.^[3]  At this stage of the proceedings, it is a matter for common sense when considering the pleading rather than a matter for precise evidence to determine whether the new claim arises from substantially the same facts.^[4]
15. [15]
    I am satisfied that the trespass claim arises out of substantially the same facts as the pre-existing causes of action.  While it is new, is not far removed from the causes of action for which relief has already been claimed.  Each of the causes of action arise out of the extraction of the plaintiff’s two teeth by the defendant on 6 and 26 August 2015 respectively. The torts of trespass to the person, including assault and battery, involve two elements. The first element is proof that there was a positive act by the defendant directed against the plaintiff.  The second element is that there was negligence or intent (in the sense that the act was voluntary) by the defendant.  The plaintiff need only prove direct contact caused by the defendant’s act.^[5]  It is not necessary for him to prove that the defendant meant to harm the plaintiff.^[6]  It is also not necessary to prove actual injury or damage.^[7]  The burden then shifts to the defendant to prove the act involuntary or that there was a want of negligence.^[8]  I agree with the plaintiff’s submissions that the absence of consent is not an element of a cause of action in trespass.
16. [16]
    It is contended by the defendant that the claim in trespass will potentially expose him to damages, including aggravated and exemplary damages which have been included in the amended pleading.  Even if this is the case, it does not change my view that the claim arises out of substantially the same facts as had originally been pleaded. For completeness, it is worth observing that in paragraph 14 of the defendant’s supplementary submissions, it is conceded that such damages may in fact be recoverable in a claim for negligence by operation of s 52(1) of the Civil Liability Act 2002 (Qld). 
17. [17]
    The remaining question is whether it is appropriate to grant the amendment. In determining this, the objectives stated in r 5 of the UCPR and the principles discussed in AON Risk Services Australia Ltd v Australian National University^[9] arise for consideration. 
18. [18]
    In McIntosh & Anor v Maitland & Ors^[10]  Jackson J said at [34]:

“In my view, it can no longer be said in this court that, in cognate branches of the procedural law, there is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. That would be inconsistent with a number of the statutory rules, concepts, principles and practices that are now recognised and incorporated into our modern laws of civil procedure.”

19. [19]
    In Cardillo v Moreton Bay Trailer Boat Club Incorporated & Anor^[11] the defendant by counterclaim applied to set aside an ex parte order for renewal of a counterclaim obtained against him by the defendant.  The challenge to the order turned on the application of r 24 of the UCPR relating to renewal of claims. Muir DCJ considered that Jackson J’s observations do not override or otherwise derogate from the broad discretion contained in r 24. I agree with this and consider it is equally applicable to the discretion to be exercised under r 376(4). 
20. [20]
    Although a satisfactory explanation for the delay is not a pre-requisite to leave being granted, it is a relevant consideration. The defendant submits that no satisfactory explanation for the delay in pursing the trespass claim has been provided. However, I accept the explanation by the plaintiff that the reason for the lateness of the application to amend, is that it was only when Dr Lee’s report was received by his solicitors in July this year, that the seriousness and extent of his injuries became apparent. Therefore, while the delay is not ideal, I am satisfied that it could not be described as unacceptable. 
21. [21]
    The effect of the granting of leave will necessarily be that the defendant will be deprived of the benefit of the limitations defence.  However, the substantial coalescence of facts makes it unlikely that the defendant would be disadvantaged in its gathering of evidence to meet the new cause of action to any greater extent than was previously the case in his meeting of the pleaded case.  As much was conceded by counsel for the defendant in oral submissions.   In short, there is no evidence that the defendant’s ability to respond to the subject amendments is likely to be compromised, or there is any other reason why a fair trial cannot be secured if the cause of action in trespass is added. 
22. [22]
    In paragraph 42(e)(v) of the defendant’s written submissions, it is submitted that the inclusion of the trespass claim is likely to delay the resolution of the claim. The reasons for this assertion have not been articulated in the written or oral submissions. There is no evidence before me to support this.  I am not persuaded that any delay consequential upon the amendments will be of significance.

Conclusion

23. [23]
    Accordingly, upon the above analysis, I consider it is appropriate to give the plaintiff leave to amend the statement of claim in the form filed on 2 September 2021, to plead the claim in trespass.   
24. [24]
    It is conceded by the defendant that amendments will be required to the amended defence, including pleading to the substantive issues raised in paragraphs 42 to 46 of the amended statement of claim.  I order that the further amended defence be filed and served by 4pm on 23 December 2021.
25. [25]
    I will hear the parties as to costs of these applications.  However, to facilitate the efficient disposition of this issue, I indicate that I consider that while the plaintiff has been successful, it was nonetheless an application he was obliged to bring.  It was not a matter which could have been resolved other than by the court hearing the matter and exercising its discretion to give the required leave.  In these circumstances costs should not necessarily follow the event.  There is a sound argument that the plaintiff should meet the costs of the applications.  If an alternate order as to costs is sought, then I will allow the parties until 4.00pm tomorrow, to provide no more than a two page written outline to me through my associate.  If necessary, I will relist the matter for hearing at a date to be fixed.