Foreman v Lee[2005] QSC 86

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J 

No BS7929 of 2004

BRISBANE

..DATE 13/04/2005

ORDER

HIS HONOUR:  This is an action for personal injuries.  Only quantum is in issue on the pleadings.

When the trial was called on this morning, counsel for the defendant applied for leave to amend the defence in accordance with the draft handed to me (exhibit 2). 

Paragraphs 9 and 10 of the statement of claim are as follows:

"9.As a result of the collision the plaintiff sustained personal injuries and consequential loss. Particulars of the plaintiff's personal injuries are:

(a)headaches;

(b)musculo-ligamentous injury to neck;

(c)musculo-ligamentous injury to back;

(d)pain all down back;

(e)pins and needles in feet;

(f)sore shoulder blades;

(g)sore legs and knees;

(h)bruising from seat belt;

(i)stress and anxiety;

(j)C5 to C6 cervical fusion.

10.As a result of the said incident and the injuries sustained by the plaintiff therein, the plaintiff:

(a)has suffered and continues to suffer, and will in the future suffer pain, discomfort and inconvenience;

(b)has required hospital, medical and ancillary treatment and has thereby incurred expense;

(c)will require ongoing hospital, medical and ancillary treatment in the future;

(d)has lost income and suffered a diminution of his/her capacity to earn income in the future;

(e)has lost the enjoyment of and suffered a diminution of her capacity to enjoy in the future the amenities of life;

(f)has required the assistance of others in order to care for herself and carry out her daily tasks;

(g)has suffered and continues to suffer from post-traumatic stress disorder with 'traffic phobia' Features;

(h)has incurred special damages, full particulars of which will be provided prior to the trial of this action."

Paragraph 3 of the defence is as follows:

"3.As to the allegations in paragraphs 9 and 10 of the statement of claim, the defendants admit that the collision referred to paragraph 7 of the statement of claim was caused by the breach of the duty of care owed by the first defendant to the plaintiff, but do not admit the nature, extent and cause of any alleged injuries, or the consequences of these injuries.  The defendants have conducted some relevant inquiries, but are not sufficiently satisfied with the results of those inquiries, such that the defendants are able to make any admission with respect to the nature, extent and cause of any alleged consequences of the collision.  Further inquiries will need to be undertaken, those inquiries including but not limited to:

(a)provision by the plaintiff and consideration by the defendants of any further medical reports, X-rays or other investigations concerning the alleged injury;

(b)provision by the plaintiff and consideration by the defendants of further details relating to his claim for past and future special damages;

(c)independent medical examination of the plaintiff by medical specialists in relevant fields, which examinations are to be conducted on behalf of the defendants;

(d)any further reasonable investigations which may arise out of any material provided by the plaintiff, his statement of loss and damage or the independent medical reports prepared on behalf of the defendants."

Issue has been joined on that paragraph.

Exhibit 2 proposes to amend the defence by deleting all but the first sentence of paragraph 3, replacing the words "do not admit" therein with "deny" and adding a new paragraph 3A as follows:

"3A.The defendants assert the denial in paragraph 3 because, if (which is denied) the plaintiff suffered the injuries alleged in paragraph 9 of the statement of claim, or any of those injuries, or any injuries at all, the following facts, matters and circumstances establish either that the plaintiff has suffered no damages at all under many of the divers heads of claim maintained by her and/or that the damages suffered by the plaintiff under the divers heads of claim maintained by her are compensable in amounts less than those asserted in paragraph 11(a) of the statement of claim:

(a)The plaintiff's complaints referable to her cervical and thoracic spine disorders (if any) are disproportionate to the objective evidence of residual pathology, such that those disorders do not give rise to any domestic incapacity or any incapacity for employment.

(b)The plaintiff now suffers from no specific psychiatric illness or condition for which the accident of 1 August 2000 is responsible.

(d)Prior to the accident of 1 August 2000 the plaintiff suffered from a psychiatric disorder, namely, depression, which had caused her to take overdoses of drugs on at least two occasions and for which she had undergone treatment (including being prescribed the antidepressant medication Prozac), which condition has continued to be productive of symptoms and/or impairment of function throughout the period from 1 August 2000 to the present day, and which condition will henceforth continue to be productive of symptoms and/or impairment of function.

(f)Whereas the plaintiff, as at 1 August 2000, was in part time employment as a cleaner with The Pickwick Group Pty Ltd, that employment, even had the accident of 1 August 2000 not supervened, would not have continued beyond 21 September 2000, being the date of cessation of the contract between the plaintiff's employer and that client of the plaintiff's employer whose premises the plaintiff cleaned.

(g)The plaintiff's having been unable to work for remuneration since 1 August 2000 has had as its consequence that the plaintiff has been spared, and will in the future be spared, that expense which she would otherwise have incurred in transporting herself to and from her places of employment, and the sum in which the plaintiff has been spared such expense, and the sum in which the plaintiff will henceforth be spared such expense must be deducted from those damages otherwise compensable for economic loss and impairment of earning capacity, both past and future.

(h)If (which is denied) the plaintiff has in the past had a need to be rendered gratuitous care and assistance, whether as pleaded in paragraphs 10(f) and 11(a)(iv) of the statement of claim or at all, the need for that care and assistance would have arisen regardless of the supervention of the accident of 1 August 2000 and its consequences.

(i)The plaintiff's incurring the amounts claimed as special damages as pleaded in paragraph 11(a)(vii) of the statement of claim would have occurred regardless of the supervention of the accident of 1 August 2000 and its consequences.

(j)If (which is denied) -

(i)the plaintiff has a need to be rendered gratuitous care and assistance in the future, whether as pleaded in paragraph 11(a) (iv) of the statement of claim or at all; and.

(ii)the plaintiff will incur pharmaceutical and medical expenses, whether as pleaded in paragraph 11(a)(vi) of the statement of claim or at all;

The plaintiff's future need for care and assistance, and the need for plaintiff to incur expenditure in respects immediately aforesaid, would have arisen regardless of the supervention of the accident of 1 August 2000 and its consequences."

A pleading may be amended as often as is necessary before a filing of a Request for Trial Date pursuant to rule 378 of the Uniform Civil Procedure Rules; thereafter leave is required: see rules 380 and 470.  The defendant's application is, obviously, after the request was filed.

The chronology of events is as follows: 

The application for leave is opposed.  Two issues arise: the question of any prejudice to the defendant and the explanation for the delay.  As to prejudice, Mr Hannay, the managing clerk who has had something to do with the file, gave evidence of his understanding of the position.  It should be borne in mind that Mr Hannay is only a managing clerk and has firm instructions that he must get guidance from a solicitor or consultant solicitor before taking any step in proceedings.

He perused the proposed amended defence but did not send it to counsel until late yesterday or today.  He was unable to consult his principal because that gentleman is personally engaged in defending himself in professional integrity proceedings in another Court.

His experience allowed him to say in the witness box that he considered that further medical reports might be necessary in regard to the issues raised by paragraphs (c) and (e) of the proposed amended paragraph 3A.  When he gave that evidence, counsel for the defendant intimated to the Court that those paragraphs would be withdrawn from the material which it was sought to insert into the defence by way of amendment.

For the plaintiff, Mr Di Carlo submitted that there was a need for further consideration of the medical position.  That arose from the fact that he had only received the amended defence very belatedly and had not obtained proper instructions or even given the amended defence proper consideration.  There is no explanation of his failure to receive it last week.  He wished, he said, to consider it, give advice to the client and receive instructions from the client.  That is not an unreasonable position.  It seems to me that it does mean that an adjournment of the trial would be necessary.  Without at this point embarking on any question of costs of an adjournment, I simply say that an adjournment would be necessary if the matter were to proceed due to fault on both sides.  I do not propose at this point to try to allocate that fault.

The effect of an adjournment is necessarily to prejudice the plaintiff.  That is particularly galling in a personal injuries case.  There is no other evidence of prejudice apart from what I have discussed which could not be dealt with by an order for costs on an indemnity basis, but as I say, that question would have to be considered in the light of the relative degrees of fault.  It is not possible to allow the short adjournment which Mr Di Carlo sought due to the Court arrangements and the matter would have to be restored to the callover list.  That may create a difficulty in that in the second half of this year it is expected that trial dates will be difficult to obtain.

In summary, the question of prejudice to the plaintiff is significant but is it is not in my judgment the determining factor in this application.  I turn to the question of the explanation for the delay given by the defendant.

Counsel submitted that the delay was due to inadvertence (I infer he meant inadvertence on behalf of the solicitors for the defendant) and that this inadvertence led to the failure to give notice earlier.  It seems to me that to explain the delay which has occurred as inadvertence is really a half-truth.  It is true that the practitioner handling the file on behalf of the solicitors for the defendant, Mr Gurry could have reviewed the pleadings before signing the Request for Trial Date.  It is not clear on the evidence exactly what would have happened had he done so.  More importantly, pleadings are not primarily his responsibility if counsel is to be engaged.  Counsel has the ultimate responsibility to ensure that pleadings reflect the case which he is to run.  That is a responsibility to the Court, as well as to the client.

In my judgment, the major reason for the delay in this case was the client's instruction that ordinarily counsel was not to be briefed before a Request for Trial Date was signed. Mr Gurry gave evidence that although no specific instruction had been given to counsel to review the pleadings in this case, he would expect it to be done as part of an advice on evidence.

He said, in cross-examination in answer to Mr Di Carlo:

     "Is it not the case that you have dealt with counsel, perhaps including my learned friend, that when you ask for an advice on evidence, not only does counsel give you advice in respect of what doctors may be required, what further evidence you need, but often it's the case, is it not, that they visit the format of the pleadings and advise you of any inadequacies or any amendments that need to be made?  You'd agree with that, wouldn't you?-- Well, I think as a general rule counsel would if they saw anything in - as a matter of just general policy with counsel, irrespective of this matter, would normally identify to their instructing solicitor any issues that they considered that required attention.

     Well, I think you admitted to his Honour that as part of what your expectations were when you deliver a request for an advice on evidence, one of the issues and that is the state of the pleadings?--  That is correct, if - well, exactly.  I think I said to his Honour that we would generally see that counsel would consider if there was anything that required attention in relation to a      matter.

     Including the pleadings?--  Well, that would be included in it, yes."

In this view I think Mr Gurry was quite correct.  It is ordinary practice and quite to be expected that counsel would review the pleadings in the course of a brief to advise on evidence.

In the present case, the position was that the defendant, a motor accident insurer, instructed its solicitors that counsel ordinarily was not to be briefed.  Mr Gurry gave the following evidence:

     "Do you have any procedure for getting an advice on evidence before signing the certificate in any case in your office?-- It would depend entirely on the client's instructions, your Honour.

     Is this client a repeat client of yours?-- It is, your Honour.

     Has it given you instructions not to obtain an advice on evidence?--  On previous matters, your Honour?

     Yes?-- Yes, it has, your Honour.

     And did you understand those instructions to carry over on to this case?-- It's a file by file assessment, your Honour, that we will seek the instructions of the client on.

     And did they give those instructions in this case?-- They did, your Honour."

Mr Gurry went on to say that he did not himself consider getting counsel's advice in relation to the pleadings before he signed the Request for Trial Date.  His practice, he said, was to have a conference with the client after the Request was signed.  He said:

     "The position would normally be that I would seek instructions from my client to sign the request for trial, then my client has a procedure whereby after the signing of a request for trial but before trial, we confer and review the file for the purposes of trial.  As a result of that conference, instructions were provided that counsel should be briefed and, appropriately, counsel should give an advice of evidence and quantum for the purposes of the trial."

I am satisfied that it was at that conference that the decision to proceed to brief counsel was made.

The adequacy of pleadings and evidence at trial are matters which must be the subject of advice from trial counsel.  It must have been obvious to the defendant from the time of the second mediation that this case had a real prospect of proceeding to trial.  Its normal practice, as I have just described it, is in my judgment anathema to the spirit and terms of the Uniform Civil Procedure Rules.  Failure to get advice on evidence before a request for trial date is signed is asking for trouble.  It is likely that pleading and evidentiary issues will arise when counsel is briefed.  This causes cost and delay as is apparent in the present case.  The Rules, and the practice of this Court, proceed on the basis that such issues will ordinarily be resolved before the Request is signed.  To obtain a date for trial at a callover while they are still outstanding is unacceptable.

The evidence was that the defendant's practice was adopted to save money, depending on the amount at stake.  The effect of the practice is potentially to place an undue burden on plaintiffs where the action proceeds to trial.  The burden consists of delay and if costs are not awarded to the client on an indemnity basis any costs by which the plaintiff is out-of-pocket.

The Uniform Civil Procedure Rules are intended to achieve expedition by requiring early preparation for trial.  It ill-behoves insurers to save money by delaying preparation until a conference is held some time after a Request for Trial Date is signed.  They do not have a right to disregard the rules for their own convenience.  It is no answer for repeat litigators like insurers to say that by adopting such practices they save money in the end because many cases settle anyway.  Plaintiffs have only one case.  Insurers should not put plaintiffs at risk of delay and additional cost by a practice designed to save themselves money in the bulk of cases.

This case, typical of its kind, has been through the hoops of the Motor Accident Insurance Act.  It has twice been to mediation.  By the time the second mediation was concluded it should have been assumed that it would not settle and preparation for trial should have begun accordingly.  Had that occurred the problem in the defence would have become apparent to counsel.

The Court endeavours to allocate early credible trial dates. Regular litigants must cooperate by complying with the rules in spirit and in letter.  In deciding to prepare for trial after the Request was filed and only a week before it was set down at the callover the defendant was not demonstrating such compliance.  It could have begun steps to prepare for trial in June 2004.

In my view no satisfactory explanation for the failure to apply for an amendment at an appropriately early stage has been advanced.  This is not a case of inadvertence but the result of a procedure deliberately adopted by the defendant. I am not satisfied by the explanation advanced for the delay. For that reason the application is refused.

Two other matters should be mentioned.  I have not overlooked the decision of the High Court in State of Queensland v. J L Holdings Pty Ltd (1997) 189 CLR 146.  In that case the Judge did accept the explanation for delay.  Moreover, the application for amendment was made six months before the trial, not on the day of trial.  The position was quite different from the present case.

Second, I draw attention to the position of the solicitor.  A solicitor is in a difficult position if a client gives instructions which risk non-compliance with the rules.  I do not criticise Mr Gurry.  As a witness he had no chance to put his personal position, and the full position between him and his client has not been explored.  However the case shows the care which solicitors must exercise in accepting instructions to cut corners.

The application is dismissed.