Ritchie v Dallimore[2009] QSC 192

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DOUGLAS J

No 10320 of 2007

BRISBANE

..DATE 16/07/2009

ORDER

HIS HONOUR:  This is a very late application by a defendant to amend a pleading in a personal injuries action where the trial is due to start next Monday 20th of July, 2009. 

The claim arises out of an accident on 17 August, 2004 where the plaintiff alleges he has suffered a number of significant injuries.  The insurer, which is the second defendant to the proceeding, has written to the plaintiff's solicitors on 18th September, 2007 about two and a half months before it filed its defence asserting that contribution lay with the plaintiff because of sections 47 and 48 of the Civil Liability Act 2003 which deal with presumptions of contributory negligence in the first case if a person who suffers harm is intoxicated and, in the second, if the person who suffers harm relies on the care and skill of a person known to be intoxicated.  Those sections create presumptions of contributory negligence to the extent of 25 per cent for each section and in the case of s 47 subsection 5, if the evidence establishes that the concentration of alcohol in the driver's blood was 150 milligrams or more of alcohol in 100 millilitres of blood or that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle then the reduction is increased to 50 per cent. 

There is also another section not mentioned in the insurer's letter which creates an additional presumption for a motor vehicle accident.  If either the concentration of alcohol in the defendant's blood was 150 milligrams or more of alcohol in 100 millilitres of blood, or the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle then the minimum reduction prescribed by s 48 subsection 4 of 25 per cent is increased to 50 per cent. 

The defence as it stands does not plead properly those potential defences, in breach of Rule 149 sub-rule 1(e) which provides that each pleading must, if a claim or defence under an Act is relied on, identify the specific provision under the Act.  It does, however, plead certain facts which refer to the ingestion of alcohol by the plaintiff in paragraphs 2(e) and 2(g) and the consequences following from those allegations asserting, amongst other things, contributory negligence in paragraph 3 of the defence.

Paragraph 2(g) refers to the first defendant's conviction on 24 January 2007, he being the driver of the vehicle, who was alleged to have been drinking with the plaintiff, of the offence of dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation.  The pleading also alleges that at that time the first defendant had driven while having a blood alcohol concentration of between .10 and .14 per cent. 

That conviction was obtained partly on the strength of a medical report from a Dr Hoskins dated 21 December 2004 which the plaintiff concedes was in his solicitor's possession some time before the 17th of April 2007, or perhaps sometime before the 13th of April 2007, as appears by inference from a letter of 30 April 2007 from his solicitors to Allianz which became Exhibit 1.

That report was based partly on certificates showing the first defendant's blood alcohol concentration as .11 per cent and opinion evidence from Dr Hoskins that his likely blood alcohol content at the time of the car crash could have been as low as .14 per cent or as high as .2 percent.  He later summarises his conclusions by saying that at the time of the crash the first defendant's blood alcohol content would have been likely to be about .17 per cent but not less than .14 per cent and it seems reasonable to infer that the prosecution relied upon the lower figure for proof of the charge beyond reasonable doubt before the Court where the first defendant was convicted. 

When the defendant briefed counsel to advise on evidence in this matter it received an advice on evidence from Mr Feely who acted for the second defendant applicant in this matter, advising that an application should be made seeking leave to amend the defence to refer specifically to sections 47, 48 and 49 of the Civil Liability Act.  The solicitors received that advice on 12 June 2009 after a request for trial signed by both parties was filed in the Court on 6 March 2009. 

It perhaps illustrates again the problem highlighted by Fryberg J in Foreman v Lee and Transport Accident Commission [2005] QSC 86 where, in refusing leave to amend, his Honour pointed to the problems raised by failing to obtain an advice on evidence before a request for trial date is signed because of the likelihood that pleading and evidentiary issues will arise when counsel is briefed and the problems that that can lead to in the efficient administration of the Court's business because of late adjournments. 

Mr Mac Giolla Ri for the respondent plaintiff also drew attention to the fact that the defendants continued to try to settle this matter between 12 June 2009 and the service of this application last week, not notifying the plaintiff of the proposal to seek leave to amend until approximately two weeks before the trial was due to commence on 20 July 2009.  That is something also going to my discretion as to whether or not to allow the amendment. 

An associated issue is whether I should give leave to permit Dr Hoskins to give evidence in respect of the matter referred to in his report, it not having been disclosed pursuant to Rule 429 within 120 days after the close of pleading in the case of a party who is a defendant.  One of the significant discretionary factors in respect of that, however, is that it is clear that the plaintiff has been in possession of the report at all material times and it was also clear upon the pleading, even as it stood, that questions of the degree of the plaintiff's intoxication were relevant on the pleadings.

In that context Mr Mac Giolla Ri points to a difference between the existing defence and the proposed amended defence as to the level of alcohol alleged to have been in the first defendant's system at the time of the accident.  The proposed amended defence seeks to allege that at the time of the accident his blood alcohol concentration was likely to have been at a level of approximately .17 per cent to .20 per cent which, of course, invokes the greater presumption of contributory negligence permitted under the Statute by the provisions to which I have referred in section 47(5) and section 48(4) as affected by section 49(2)(e). 

Mr Mac Giolla Ri frankly told me that his client did not want to seek to adjourn the trial in any event, an attitude perhaps influenced by some of the injuries pleaded as consequences of the accident from which he has claimed to suffer, namely post-traumatic stress disorder and major depression. 

It seems to me, however, that it has been a live issue from the institution of proceedings, highlighted by the insurer's letter, but also by the existing pleading as to the fact that the first defendant was intoxicated by reference to the pleading in paragraph 2(g) and it is also a fair inference from paragraph 2(e) that the plaintiff had himself been consuming alcohol at the relevant time. 

It is true that that allegation against the plaintiff is nothing like as detailed as that proposed in paragraph 2(h) of the proposed amended pleading and that the allegations in respect of the first defendant's blood alcohol concentration have been increased to take into account the higher possible estimates referred to by Dr Hoskins in his report.  But it does not seem to me that the essential element of involvement of alcohol in the accident would come as a surprise to the plaintiff. 

What the proposed amendment aims to do is to meet clearly the pleading obligations of the defendants by reference to material that has been in the plaintiff's possession at all relevant times.  Accordingly, I will give leave to amend the pleading in the terms sought. 

The other issue relates to a question of reliance on Dr Hoskins' report.  It is true to say that part 5 division 3 of the Uniform Civil Procedure Rules is directed to the creation of a regime which encourages the use of single experts in litigation, something touched on by McMeekin J in Stewart v Fehlberg [2008] QSC 203 at paragraphs 16 to 20. 

The report of Dr Hoskins is essentially in the form required by Rule 428 with one exception, in that it is not addressed to the Court, but it includes the confirmation at the end of the report required by Rule 428 sub Rule 3.  Although not disclosed according to Rule 429 the plaintiff has always had it and I think should have expected that it may be relevant to evidence on this issue at a trial.  The plaintiff's solicitors were also notified of the proposal to use the report, it appears, about a week ago and it does not seem to me to be the sort of expertise that would be impossible to source elsewhere to check the assumptions and opinion of Dr Hoskins. 

It seems to me therefore that it is appropriate to permit Dr Hoskins' report to be used as evidence in the trial pursuant to Rule 427 sub Rule 2(b) but I would only do so on the condition that if the plaintiff wishes to lead evidence from another similar expert on these issues that he should be entitled to do so and Mr Feely for the second defendant intimated that he would not oppose such a course.

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HIS HONOUR: I order that the second defendant pay the plaintiff's costs of and incidental to this application including any costs thrown away by the amendment of the defence. 

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HIS HONOUR:  On the second defendant's undertaking by its Counsel not to oppose an application by the plaintiff to lead evidence by a report from another expert witness dealing with the report of Dr Hoskins dated 21 December 2004 I give leave to the second defendant to amend its pleading in the form of Exhibit MRG5 to the affidavit of Michael Robert Garbett filed 10 July 2009.  I give leave to the second defendant to tender in evidence through Dr Hoskins his report dated 21 December 2004 saving any just exceptions to the admissibility of its content.

I order that the second defendant pay the plaintiff's costs of and incidental to this application including any costs thrown away by the amendment of the defence.