MACK -v- EAST METROPOLITAN HEALTH SERVICE [2026] WADC 65

[2026] WADC 65 [2026] WADC 65 [HC] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : MACK -v- EAST METROPOLITAN HEALTH SERVICE [2026] WADC 65 CORAM : STAUDE DCJ HEARD : 8 & 18 JUNE & 3 JULY 2026 DELIVERED : Ex tempore PUBLISHED : 20 JULY 2026 FILE NO/S : CIV 2728 of 2019 BETWEEN : TERENCE MACK Plaintiff AND EAST METROPOLITAN HEALTH SERVICE Defendant Catchwords: Practice and procedure - Pleadings - Action for damages for personal injuries - Leave to re-amend defence to plead pre-existing and other conditions as causative of plaintiff's claimed loss and damages - Whether facts relevant to causation of damage need to be pleaded - Whether the proposed amendments are necessary to avoid plaintiff being taken by surprise - Causation issues arising from disclosure during proceedings of plaintiff's medical history - Whether plaintiff prejudiced by amendment of defence - Whether amendments likely to precipitate adjournment of trial - Costs - Whether opposition to application for leave to re-amend defence was reasonable -- 1 of 15 -- [2026] WADC 65 [2026] WADC 65 [HC] Page 2 Legislation: Civil Liability Act 2002 (WA) District Court Rules 2005 (WA) Rules of the Supreme Court 1971 (WA) Result: Leave to re-amend defence granted Defendant to pay plaintiff's costs of application Representation: Counsel: Plaintiff : Mr G Droppert SC & Ms B Rogers Defendant : Ms R Young SC & Mr S Taylor Solicitors: Plaintiff : Slater and Gordon Lawyers Defendant : Moray & Agnew Lawyers Case(s) referred to in decision(s): 3Meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; (2012) 43 WAR 350 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290 Jobling v Associated Dairies Ltd [1982] AC 794 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Stanley v Layne Christensen Co [2006] WASCA 56 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 -- 2 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 3 STAUDE DCJ: [This decision was delivered extemporaneously on 3 July 2026 and edited from the transcript to correct infelicity of expression and grammatical and syntactical errors, and to add citations. The costs order was reserved.] Introduction 1 This action is listed for trial for 20 days commencing 20 August 2026. 2 It came before me in chambers on 8 June 2026 for directions and the return of the defendant's application by chamber summons for leave to re-amend the defence. Pre-trial programming orders were made by consent. The court also made directions with respect to the leave application requiring the defendant to serve an index of documents to be tendered in support of the particulars pleaded in par 11C of the defendant's minute of proposed re-amended defence dated 4 June 2026 (original minute). 3 On 18 June 2026, I heard the defendant's application for leave to re-amend the defence. After hearing from senior counsel for each side, I directed that a further minute of proposed re-amended defence be filed and served and that the plaintiff have leave to make written submissions on the further minute. I otherwise reserved my decision. 4 The defendant has filed a further minute of proposed re-amended defence dated 24 June 2026 and another minute dated 3 July 2026 which corrects paragraph numbering (the further minute). No responsive written submissions have been filed. 5 The action is a claim for damages for personal injuries arising from negligent medical treatment on 3 August 2016 for which the defendant has admitted liability. The defendant also admits to causing injury in the form of stroke and temporary hemiparesis. 6 The matter proceeds to trial, therefore, as an assessment of damages. The plaintiff has the burden of proving loss and damage: s 5D of the Civil Liability Act 2002 (WA). This is the case at common law: see Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160 (Dixon CJ). 7 Watts v Rake, as explained by the High Court in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, stands for the proposition that evidence of a change in the plaintiff's condition after -- 3 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 4 the incident of injury will ordinarily amount to prima facie proof that it was caused thereby. In effect, proof of such a change will raise a factual presumption of causation. 8 It is clear from Purkess v Crittenden that an evidential onus is placed on the defendant who disputes causation to show that the alleged incapacity is wholly or in part the result of some pre-existing condition, or that the plaintiff's incapacity would in any event have resulted from a pre-existing condition. It is not enough for the defendant to merely suggest the existence of a progressive condition or a relationship between any such condition and the plaintiff's incapacity. Rather, the pre-existing condition and its future probable effects or relationship to the plaintiff's incapacity must be the subject of evidence that would establish with some reasonable measure of precision what the pre-existing condition was and what its likely effect would be. The defendant having discharged that onus, the legal burden is on the plaintiff to prove on the whole of the evidence the extent of their injury and loss. 9 In Jobling v Associated Dairies Ltd [1982] AC 794, it was held by the House of Lords that where the defendant's negligence has caused personal injury to the plaintiff, a supervening illness affecting the plaintiff may be taken into account as a vicissitude of life negating or reducing the extent to which the defendant's negligence remains a cause of the plaintiff's damage. 10 In Assessment of Damages for Personal Injury and Death (5th ed, 2021) [2.9.4], Luntz AO and Harder state that it is well-established that where the effects of the defendant's wrong would have occurred in any event owing to a natural condition from which the plaintiff was already suffering, the defendant is not liable for those effects, the same principle applying to a condition that the plaintiff develops after the wrongful act but before the trial. 11 In Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, the High Court held that in assessing future losses the court may determine the likelihood that such losses may have resulted in any event from a condition unrelated to the compensable injuries and reduce damages accordingly. -- 4 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 5 Pleadings 12 In this case there are issues as to causation of loss that arise from the fact that the plaintiff was suffering a number of pre-existing medical conditions from which it is alleged he continues to suffer, and that events have occurred after the incident in question that the defendant contends have caused or materially contributed to the claimed loss and damage. 13 The pleadings as they stand at present are quite straightforward. The statement of claim in par 16 pleads the plaintiff's injuries as 'a stroke or strokes, left hemiplegia, and psychological injuries - PTSD, anxiety and depression'. 14 The plaintiff's particulars of damage dated 27 July 2023 plead the residual disabilities as: A Left hemiplegia. B Loss of strength in left upper and lower limbs and consequent fatigue. C Memory impairment. D Neuropathic pain in shoulders and left upper and lower limbs. E Decreased mobility. F PTSD, anxiety and depression. 15 The particulars of damage detail pecuniary loss claims for past and future loss of earning capacity including loss of superannuation, past and future care and assistance, past and future treatment expenses, equipment costs, and Wilson v McLeay damages. As particularised in 2023, the pecuniary loss claim totalled nearly $8.5 million. 16 The original defence dated 2 September 2021 pleaded a denial of the breach of duty pleaded in par 15 of the statement of claim and a general denial of injury, loss and damage as pleaded in pars 16 - 19 of the statement of claim. 17 In its amended defence dated 29 August 2025 (amended defence), the defendant admitted the breach of duty pleaded in par 15 of the statement of claim, but otherwise maintained a general denial of injury, loss and damage. -- 5 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 6 Proposed amendments to the defence 18 The defendant now seeks to further amend the defence to plead propositions of fact that it concedes are unnecessary, but which it says will facilitate the conduct of the trial. 19 Firstly, the defendant proposes to amend par 11A of the amended defence to add to its admission of a breach of duty of care that the duty was breached by the defendant failing to take adequate steps during the removal of a central venous catheter to prevent the plaintiff suffering an air embolus causing a stroke by reason of the defendant failing to ensure that the plaintiff remained in a supine position and without any elevation of the head following the removal. 20 As this is precisely the basis on which the plaintiff says the injury was caused, the proposed amendment is superfluous. However, as it does not prejudice the plaintiff in any way, I consider if the defendant wishes to spell out its admission of liability to that degree it should have leave to do so. 21 The second amendment is to add par 11B to plead in answer to par 16 of the statement of claim that the defendant admits that its breach of duty resulted in an air embolism (a blockage caused by an embolus) causing the plaintiff to sustain injuries which it says were a right-sided stroke and temporary left-sided hemiparesis (not hemiplegia, as pleaded by the plaintiff) and to otherwise deny the particulars of injuries alleged in that paragraph (the other injury pleaded in the statement of claim at par 15 is described as 'psychological injury - PTSD, anxiety and depression'). 22 Clearly, the defendant's limited admission of the plaintiff's alleged injuries could be made at the trial, but it is reasonable in my view that the defendant be given the opportunity to formally make the admission in its defence so that the trial judge when they read the pleadings before the trial will know that injury is admitted to a certain extent. 23 The third proposed amendment is the addition of par 11C in response to pars 17, 18, 19 and 20 of the statement of claim. The first three of those paragraphs, as I have noted, allege loss and damage. 24 Paragraph 20 pleads that the defendant's breach of duty was a necessary condition of the harm suffered by the plaintiff and that it is appropriate for the scope of the defendant's liability to extend to the harm pursuant to s 5C of the Civil Liability Act. Although that paragraph is denied in proposed par 11C(b), senior counsel has confirmed that there is no issue as to the defendant's liability. -- 6 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 7 25 I am told that the purpose of this proposed amendment is to make clear the defendant's contention that the plaintiff's alleged loss and damage is not caused by the injuries resulting from the defendant's negligence, but by other matters unrelated to it, principally, pre-existing medical conditions and injuries from which the plaintiff continues to suffer. 26 By proposed par 11C(a), the defendant repeats the admission of injury made in par 11B, and by par 11C(b), otherwise denies the plaintiff's allegations of loss and damage. In par 11C(c) the defendant pleads, in effect as an alternative to par 11C(b), that: … the other injuries and any resultant loss and damage from those other injuries were caused by or contributed to by, other things unrelated to the defendant's negligence being conditions or injuries occurring or arising before and continuing after the defendant's negligence. 27 During the hearing, I made the observation that the original minute pleaded in part evidence, or facts that did not constitute pre-existing conditions or injuries as such; for example, the dates of hospital admissions and medical presentations, a situational crisis, work stress and unfitness. The plaintiff for his part objected to leave being granted for that reason, and because the proposed particulars of pre-existing conditions and new conditions did not plead sufficiently, or at all, how the plaintiff's claimed losses were said to have been caused by the matters particularised, and were to that extent embarrassing. The plaintiff also submitted that the proposed amendments were prejudicial by reason of the imminence of the trial and would likely necessitate a vacation of the trial dates. 28 I consider that the further minute filed since the last hearing substantially remedies the problems inherent with the original minute in that it now pleads specific conditions and injuries, both pre-existing and occurring after the material date, that it says have caused or contributed to the plaintiff's alleged loss and damage from the 'other injuries'. Proposed par 11C(c) does not plead the actual or likely effects of those conditions and injuries, but in my opinion, it is unnecessary to do so. Must a causation issue be pleaded? 29 It is far from clear to what extent a defendant in an action for damages for personal injury is bound to plead facts relating to quantum. The defendant has submitted in this case that it is not bound to plead other causes for the plaintiff's alleged loss and damage, such that even -- 7 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 8 without the amendments sought it would be able to contend at trial that the plaintiff has not suffered loss to the extent claimed by him as a result of other injuries (ie non-admitted injuries) by reason of other medical conditions and injuries for which the defendant is not liable. It merely has an evidential onus in respect of those matters. 30 As I have pointed out, at common law and by operation of statute, the legal onus is on the plaintiff to prove loss and damage. Relevantly, O 20 r 14(4) of the Rules of the Supreme Court 1971 (WA) provides that any allegation that a party has suffered damage is deemed to be traversed. Order 20 r 10 provides that a party may in any pleading plead any matter which has arisen at any time, whether before or after the issue of the writ. Without overlooking the plaintiff's point as to delay, I would observe that in personal injuries cases, because the parties are generally unknown to each other before the event giving rise to the claim, it is generally in the light of discovered documents, documents produced under subpoena, or medical examination that issues of causation of damage arise. 31 In this jurisdiction, it is as a matter of practice rather than a requirement of the rules of court that a defendant will plead a pre-existing or supervening condition. I have not been informed of any authority to the effect that a defendant is necessarily precluded from relying on such a defence in an assessment of damages if it has not been pleaded. The practical requirement appears based on considerations of fairness: that a party should not be taken by surprise at trial by a causation issue of this kind. Indeed, senior counsel has based the defendant's submission on the premise that there is no obligation to plead such a defence. Senior counsel's submission is that the proposed amendment introduces no new defence and merely clarifies the defence position on quantum. Leave to amend, it is submitted, should be given in the interests of the efficient conduct of the trial. 32 In 3Meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128; (2012) 43 WAR 350 [66], Murphy JA, (with whom Pullin & Newnes JJA agreed), stated that pleadings questions must necessarily be examined by reference to the particular litigation in which they arise. The presence or absence of other pre-trial procedures for elucidating the issues and avoiding trial by ambush will often be relevant to such questions. -- 8 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 9 33 That case involved a latent conduit defence that arose in an action for damages for deceptive and misleading conduct. His Honour considered whether a mere traverse of an allegation of damage is always necessarily sufficient. At [70] his Honour cited Bullen & Leake & Jacob's Precedents of Pleadings (12th ed) [1032], where the authors observed: The prevailing and better practice is for the defendant to deal specifically with the claim for damages though not the amount. The reason is that the plaintiff will know more clearly the case he has to meet and will not be taken by surprise at the trial. It is therefore common practice, not only for the defendant to traverse the claim for damages, but also to raise, as positive allegations, such defences on the question of damages as their causation, their foreseeability and their remoteness, and the failure ... to mitigate. 34 At [72] his Honour also cited Jacob JIH and Goldrein I in Pleadings, Principles and Practice (1990) 124: Although the defendant is not strictly required to traverse the claim for damages or their amount, or matters alleged as particulars, or the prayer or claim for relief, it is nevertheless common practice for the defendant to deal specifically with these allegations and to traverse them by denial or non-admission. If, however, the defendant intends himself to raise specific questions or issues in relation to damages, such as, eg, that they are too remote and are not recoverable or that they were not caused or contributed to by the wrongful acts complained of, he must specifically raise such issues as to remoteness or causation in his defence. 35 At [73] his Honour noted that in F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290 [135], the Court of Appeal accepted that as a general rule a party need not plead causation of its damages, but was required to plead the material facts which entitled it to the relief which it claimed, and to plead 'every matter which might take an opposing party by surprise'. 36 While that statement was made with reference to a plaintiff, Murphy JA considered that it showed the importance of observing the surprise rule in the context of the issue of causation. 37 The dicta in 3Meg.com Pty Ltd v TM & SM Pike Pty Ltd support the general proposition that the question of whether it is necessary for a defendant to plead an issue as to causation of loss will depend on the circumstances of the litigation, the requirement to plead usually arising where the other party may be taken by surprise. -- 9 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 10 No surprise 38 In this case, the action has proceeded through the discovery process and has been the subject of a number of pre-trial conferences and a mediation. There have been many subpoenas to produce returned by medical service providers and other entities. The number of days for which the trial is listed reflects, as I am informed by senior counsel, the defendant's estimate of the time that will be required to canvass the issue of causation in evidence. 39 In the circumstances, the causation issue which the defendant seeks to formally plead cannot be said to have taken the plaintiff by surprise. It arises from the plaintiff's own documented medical history. 40 Viewed against this procedural background, the proposed amendment to add par 11C can be seen as regularising the defence so as to state with specificity the defendant's position on causation. 41 This could certainly have been done much earlier as senior counsel for the plaintiff has admitted. A change of leading counsel explains to some extent the failure of the defendant to plead matters which as a matter of practice should be pleaded. Yet the defendant has been represented by experienced legal practitioners and by another senior counsel prior to Ms Young SC. It does, in my view, reflect upon those who have conducted the defence that the facts relied upon by the defendant to dispute causation were not pleaded earlier. 42 The plaintiff has made much of the timing of the application, submitting that it is too late, the trial being listed to commence in August, to allow amendments that would require the plaintiff to make a responsive case. 43 I have noted the plaintiff's concern in this regard, but if one accepts, as I do, that the question of causation has been alive for much of the seven years for which the action has been running, and that an evidential basis for proposed par 11C can be found in the medical records and reports that have been disclosed, I cannot see that the plaintiff is likely to be prejudiced in the conduct of his claim, or that leave to re-amend the defence would precipitate an adjournment of the trial. That is because the proposed amendment to add par 11C does not alter the defendant's position. It occasions no surprise. -- 10 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 11 44 As to the manner of pleading of the particulars of the pre-existing and subsequently occurring conditions in the original minute, senior counsel for the plaintiff has pointed out quite rightly that the mere recitation of various complaints, diagnoses and treatments extracted from the plaintiff's voluminous medical records serves not to clarify the defendant's case, but rather to embarrass the plaintiff in terms of knowing what is to be put against him. A significant number of the particulars in that minute pleaded matters of evidence rather than fact, for example, hospital admissions, or pleaded conditions that on their face bore no relationship to the plaintiff's pleaded loss and damage. 45 As I stated earlier, the further minute substantially remedies this deficiency and together with the index of references to the documentary medical evidence affords adequate notice to the plaintiff of the matters that are to be put against him. 46 Even in the further minute, it must be observed, the defendant proposes to plead various injuries, illnesses and life events about which there is no expert evidence and which appear to be irrelevant to the plaintiff's pleaded disabilities. For example, the further minute pleads a right knee injury in 2013, a right finger injury in 2018, bilateral subacromial bursitis also in 2018, a fracture of the right humeral greater tuberosity in 2022, a left knee lateral meniscus tear in 2023 and lumbar spine symptoms also in 2023. 47 That these further injuries and the effects of them may affect the assessment of damages is a question to be determined on the evidence as a whole, including the plaintiff's evidence. The defendant is not required to obtain expert evidence in order to establish the relevance of such injuries. The same can be said of other matters that are particularised as causative that have not been the subject of any expert opinion. They are matters upon which the plaintiff is liable to be cross-examined in any event. They go to the nature and extent of the damage caused by the defendant's negligence. 48 Objection is also taken to the pleading of conditions such as type 2 diabetes, hypercholesterolaemia and hypotension which have not been the subject of expert evidence. About the effects of such conditions on his health and wellbeing generally, the plaintiff and his treating doctors might be cross-examined. The defendant has not indicated that it intends to adduce any further expert evidence. There is no reason to suppose that the amendment of the defence to plead these -- 11 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 12 matters as causative of loss, be they medical conditions or injuries, would occasion any need on the plaintiff's part for further expert evidence. 49 Accordingly, I am not persuaded that the proposed amendments, if made, would precipitate an adjournment of the trial. 50 In the circumstances of this case, given the nature of the proposed amendments, the principles set out in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 and other decisions referred to by the plaintiff are not applicable. The proposed amendments do not raise a new defence and do not give rise to any issues of fact or law that would not have arisen at trial in any event. 51 The plaintiff also relies on r 48A of the District Court Rules 2005 (WA) which requires by r 48A(2) that a pleading cannot be amended without leave after a certificate has been tendered under r 43(3A)(a) or the action has been listed for trial, and by r 48A(3) that an application for leave be supported by an affidavit that sets out the facts that have arisen since the time expired for amending a pleading without leave and that ground the party's argument that the amendment is necessary. This is a somewhat technical objection. 52 In this case, the application for leave is supported by the affidavit of Ms Tracy Bennett sworn 4 June 2026, in which she deposed to the fact that the proposed amendments were suggested in March this year by senior counsel Ms Young who was briefed in December 2025. A minute of proposed re-amended defence was provided to the plaintiff's solicitors by letter of 18 May 2026. The application was made after Ms Bennett became aware on 29 May 2026 that the plaintiff would not consent to leave being granted. 53 Ms Bennett has deposed to the documentary evidence obtained by discovery and the return of subpoenas to produce, there being some 8,350 pages of documents compulsorily produced, of which some 6,350 pages are medical or other health service records, many of which the defendant would have sought to tender at trial in any event. Attached to the affidavit are the reports of the defendant's expert witnesses; Dr Musuka, Dr Maxwell and Professor Olynyk, served in 2024, that are informed to some extent at least by the plaintiff's medical history generally and contain opinions as to the cause or causes of the conditions for which he was examined by them. Also attached are the recently served supplementary reports of the plaintiff's medical experts Dr Cheng and Dr Rutkowski. -- 12 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 13 54 I have listened to the submissions made on these reports by each side. Without going into a detailed analysis, I would simply observe that the reports support the observation I made earlier in these reasons that the causation issue did not arise recently. Both parties, it seems to me, have proceeded thus far on the basis that the defendant's position at trial will be that there are other causes of the plaintiff's claimed loss and damage to be found in his medical history. 55 In my view, the requirements of r 48A(3) of the District Court Rules have been met. Although it is unsatisfactory that it has taken so long for the defendant to formalise its case on causation in the defence, the necessity to do so in this instance is occasioned not by any need to avoid taking the plaintiff by surprise, but by the importance, as senior counsel perceives it, of clarifying the defendant's position in the interest of the fair and efficient conduct of the trial. 56 On the issue of necessity, as I have said, it is as a matter of practice that a defendant is required to plead any facts that give rise to an issue of causation so as to avoid the plaintiff being taken by surprise at trial. The necessity to do so in a particular case will depend upon the nature of the litigation. It is clear in this case that causation of damage has been in issue since well before the action was listed for trial. 57 The defendant has offered in support of its application to provide 'without prejudice' material by means of a confidential affidavit. I do not consider that disclosure of such material is required for the proper determination of the leave application. Costs 58 Following the handing down of this decision on 3 July 2026, counsel for each party moved for costs. 59 I understand the defendant's position is that it has been put to the cost of a contested leave application in circumstances where the amendments sought to the defence involved no more than admissions in respect of liability and injury (partial) and a particularisation of the basis upon which it disputed causation of damage. The defendant's position is that it is unreasonable for the plaintiff to have gone to the extent that he did to resist the application. In light of the observations made in my reasons for decision, however, counsel for the defendant submitted that, in the alternative, there should be no order for costs, and that if costs were awarded to the plaintiff they should be reduced to some extent. -- 13 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 14 60 The general principle is that a party who seeks the indulgence of the court should pay the costs of an application: Stanley v Layne Christensen Co [2006] WASCA 56. The general rule applies whether or not the application succeeds but is not inflexible. In that case, Wheeler JA held that the court will have regard to the extent to which it might be said the costs were unnecessarily incurred by a party and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. Her Honour stated at [52] where a contested application is unnecessary because a party acting reasonably would have consented to the appropriate orders where the party has caused the costs to be unnecessarily incurred will not obtain its costs of such proceeding merely because the application is for some indulgence. 61 Senior counsel for the defendant pressed the application for leave on the basis that proposed par 11C was merely a particularisation of the defendant's denial of loss and damage, submitting that even if leave to amend to add that paragraph were not granted, the defendant could rely on evidence of other medical conditions and injuries to dispute the plaintiff's claim for damages. 62 Although the plaintiff made submissions against the leave application with respect to par 11A and par 11B of the further minute, the real contested issue was the manner of pleading of par 11C. It was not unreasonable for the plaintiff to insist that the defendant provide an index of references in the plaintiff's medical records of the matters particularised. That a number of the matters were inappropriately pleaded is demonstrated by the refinement of par 11C in the further minute. In my opinion, without deciding whether the pleading of par 11C is strictly necessary, the pleading of a pre-existing or other condition in the defence of the plaintiff's claim for loss and damage due to injury caused by the defendant's negligence is, at the very least, a matter of good practice and should be done when the issue arises. 63 I found in this case that the plaintiff is not prejudiced by the amendment given that the causation of the plaintiff's claimed loss and damage from the injuries caused by the defendant has been contentious during the course of the proceedings at least from the time when the plaintiff's medical history was disclosed. It is clear however that the particularisation of par 11C in the original minute went well beyond those matters upon which the defendant's expert medical witnesses have expressed opinions. -- 14 of 15 -- [2026] WADC 65 STAUDE DCJ [2026] WADC 65 [HC] Page 15 64 It was not unreasonable therefore that the plaintiff should object to par 11C as pleaded in the original minute on the grounds that it was embarrassing, and it would put at risk the trial dates. 65 In considering this aspect of the matter I take into account the personal circumstances of the plaintiff as described by Mr Droppert SC, accepting for present purposes that addressing such a vast unfiltered array of facts as was originally pleaded in par 11C would impose an onerous burden upon him. 66 In my view it is not unreasonable for the plaintiff to require the defendant to persuade the court that the proposed amendments be permitted so close to the commencement of the trial of action. 67 Accordingly, the order will be that the defendant do pay the plaintiff's costs of the chamber summons for leave to re-amend the defence in any event. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DC Associate to Judge Staude 20 JULY 2026 -- 15 of 15 --