Downes v Affinity Health Pty Ltd [2013] QDC 51

DISTRICT COURT OF QUEENSLAND CITATION: Downes v Affinity Health Pty Ltd [2013] QDC 51 PARTIES: DIANE ROSEMARY DOWNES (Plaintiff) v AFFINITY HEALTH PTY LTD ABN 53106722347 (Defendant) FILE NO/S: 305 of 2009 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 19 March 2013 DELIVERED AT: Maroochydore District Court HEARING DATE: 19 February 2013 JUDGE: Long SC DCJ ORDER: Grant the applicant leave to file and serve the amended statement of claim, subject to an order that paragraphs 2(c), 2(d), 2(i), 4(c), 8 and 9 are struck out. CATCHWORDS: PERSONAL INJURY – AMENDMENT OF PLEADINGS – application by Plaintiff to amend pleadings after request for trial date – whether leave granted for Plaintiff to amend pleadings under UCPR 380 WORKPLACE HEALTH AND SAFETY – where defendant cross applied for certain paragraphs, which purported to raise a civil right of action for the plaintiff based on breaches of the Workplace Health and Safety Act, to be struck out of pleadings – where the plaintiff only sought to continue to rely upon such paragraphs as particulars of a common law claim for negligence - where no decision required of the court upon parties subsequently agreeing as to an order to strike out the paragraphs -- 1 of 22 -- 2 Uniform Civil Procedure Rules 1999, r380, r376(4) Workplace Health and Safety Act 1995 (repealed), s37A, s97(b)(ii) Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [30], [98] Ballesteros v Chidlow and Anor No 2 [2005] QSC 285 at [35] Borsato v Campbell & Ors [2006] QSC 191 at [8] Hartnett v Hynes [2009] QSC 225 at [12]-[27] Hartnett v Hynes [2010] QCA 65 at [34] – [35] Page v Central Queensland University [2006] QCA 478 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155 COUNSEL: L Smith for the Plaintiff D Schneidewin for the Defendant SOLICITORS: Adrian Hawkes Lawyers for the Plaintiff McInnes Wilson for the Defendant Introduction [1] On 19 February 2013 and because of an application filed by the plaintiff on an urgent basis on 15 February 2013, the Court heard an application for leave to file and serve an Amended Statement of Claim pursuant to UCPR 380. [2] Leave was so required because the amendment was sought after the request for trial date. In fact and at that stage, the trial was listed to commence for a four day hearing on 25 February 2013. Accordingly and at the first opportunity for this application to be heard, there remained only three business days before the scheduled -- 2 of 22 -- 3 commencement date of the trial. It was therefore apparent that this application and its consequences were and were likely to continue interrupting the preparation for that trial which was then underway. [3] The application was opposed by the defendant and as originally framed, it invited consideration as to whether the proposed amendments constituted the addition of a new cause of action and therefore consideration of UCPR 376(4). However at the hearing of the application it was common ground that no new cause of action was being included and that accordingly the appropriate rule for consideration was UCPR 380. [4] At the hearing of this application, it became clear that there was, by then, a difficulty with the trial being able to proceed as listed.1 This was essentially because of the considerations that if the plaintiff‟s application was to be allowed, then the defendant would require time to re-plead to the Amended Statement of Claim and alternatively, if the application were refused, then the intention of the defendant remained to apply for leave to file and serve its proposed Amended Defence and such an application would be opposed by the plaintiff and was not then even before the court. [5] In addition and in response to this application and effectively as a cross-application, the defendant raised another issue in respect of those parts of the Statement of Claim that “purported to raise a civil right of action in the plaintiff based on various breaches of the Workplace Health and Safety Act 1995 (repealed)” (“WHS Act”). In essence, the defendant contended that such parts of the Statement of Claim should be struck out pursuant to UCPR 171, because of the effect of s 37A of the WHS Act in abolishing any right of civil of cause of action arising from contravention of any provision of that Act. It was not in contention that notwithstanding that this action was commenced before s 37A came into effect, on 17 June 2010, the effect of 1 This was the defendant‟s position from the outset of the application and was eventually conceded, as a reality, by the plaintiff‟s counsel. -- 3 of 22 -- 4 s 197(b)(ii) of the WHS Act was to nevertheless retrospectively abolish the pleaded cause of action. [6] Initially, the plaintiff‟s response was to contend that it remained open for reliance to be placed upon aspects of the WHS Act “as particulars of the alleged negligence” of the defendant at common law. Because the plaintiff sought to do this and the defendant maintained that this was also not permissible, as a consequence of the abolition of the cause of action under the WHS Act and because this further issue had only arisen out of the defendant‟s written outline of submissions dated 19 February 2013 and then remained as a further matter in contention over the state of the pleadings, the decision on all matters in issue was reserved and the parties were given leave to make further written submissions on the defendant‟s cross-application. The defendant was to do this by 22 February 2013 and did so by promptly providing further written submissions on 20 February 2013. The plaintiff was allowed until 6 March 2013 to do so but before then and on 4 March 2013, the parties corresponded with the court to indicate that they had reached an agreed position in respect of this further issue, on the basis that the plaintiff would consent to paragraphs 2(c), 2(d), 2(i), 4(c), 8 and 9 of the existing Statement of Claim being struck out and that there be no order as to costs of the defendant‟s cross-application. [7] Although this further issue is now raised before the court, it has not yet been fully argued or determined and in the circumstances, it is appropriate to act on the agreed position of the parties and to ultimately make orders reflecting that resolution. Some context [8] Notwithstanding that the pleadings in this matter had closed on 8 December 2009, after this matter had been the subject of the pre-court procedures set out in the Workers' Compensation and Rehabilitation Act 2003, notice was only given of the plaintiff‟s intention to amend her Statement of Claim, on 6 February 2013. This was -- 4 of 22 -- 5 also notwithstanding that it was common ground that a primary purpose of the proposed amendments was to cure a fundamental deficiency in the pleading of the Statement of Claim. Leaving aside some matters which were in the nature of tidying up misdescriptions in the Statement of Claim and incorporating particulars which had been previously provided to the defendant and as to which there was no complaint, the primary focus of the application was upon the proposed amendments to paragraph 5(f) of the Statement of Claim. In order to provide some context for these reasons it is convenient to set out the entirety of paragraph 5 of the proposed Amended Statement of Claim: “5. (a) On the 24 and 25 July 20079, the Defendant required the Plaintiff to perform night shift duties including the supervision of a patient known as “Beryl” (“the work”). (b) The Defendant required the Plaintiff to carry out the work in the course of the Plaintiff‟s employment with the Defendant. (c) Beryl had undergone a hip operation earlier on the 25th 24 July 20079. (d) As a result of her hip operation, Beryl‟s doctor gave instructions that Beryl should remain immobile and in bed until further instructions were given. Particulars The instructions were in the form of Dr Winstanley‟s “Doctors Protocols” dated 17 May 2007 which provide, inter alia, that the patient is not permitted to stand and mobilise until Day 2 post-operative with a physiotherapist. (e) The Defendant required the Plaintiff as part of the work the Plaintiff was required to do to ensure that Beryl remained immobile and in bed in accordance with the doctors instructions. (f) At around 2.30am on 25 July 2007: 1. The Plaintiff found Beryl attempting to get out of bed: Whilst performing the work, an incident whereby Beryl attempting to get out of her bed occurred Particulars The Plaintiff heard a noise in Beryl‟s room and went to investigate and found Beryl sitting on the side of her bed between the foot of the bed and the “raised cot side” of the bed about to topple forward. 2. The Plaintiff stopped Beryl from getting out of bed: Particulars The Plaintiff bent forward and “hugged” Beryl such that Beryl‟s body was supported by the Plaintiff‟s chest with the Plaintiff‟s arms around Beryl‟s back. 3. The Plaintiff sought assistance from a co-worker: Particulars -- 5 of 22 -- 6 The Plaintiff called out to Ms Samantha Newell for assistance. 4. The Plaintiff and the co-worker lifted Beryl back into the centre of the bed. Particulars The Plaintiff and Ms Newell lifted Beryl back to the centre end of the bed by: 1. Ms Newell lowered the cot side on the bed while the Plaintiff continued to support Beryl; 2. Ms Newell positioned herself to the left of the Plaintiff on the same side of the bed; 3. Ms Newell proceeded to lift Beryl‟s legs while the Plaintiff maintained her support of Beryl; 4. Ms Newell and the Plaintiff then proceeded to both lift Beryl into place in the centre of the bed. The Plaintiff supported Beryl‟s upper body, while Ms Newell supported Beryl‟s legs. The Plaintiff reached out with her arms extended and body bend forward to lift, carry and lower Beryl into the centre of the bed the Plaintiff twisted her back while lifting: (collectively hereinafter referred to as “the incident”). (g) As a result of the incident the Plaintiff suffered injury to her lumbar spine. being aggravation of lumbar spondylosis and a protrusion of the L4/L5 disc resulting in a 12% whole person impairment. (h) The defendant required the plaintiff as part of the work the plaintiff was required to do to ensure that Beryl remained immobile and in bed in accordance with the doctor‟s instructions. (i) Whilst performing the work, an incident whereby Beryl attempted to get her out of bed occurred (“the incident”). (j) As a result of the incident the Plaintiff suffered injury to her spine, being aggravation of lumbar spendylosis and a protrusion of the L4/L5 disc resulting in a 12% whole person impairment (“the injury”).” [9] Therefore and in an unamended form, the Statement of Claim (which had been that way since it was filed on 30 October 2009) whilst identifying a claim based upon an incident that occurred when the patient Beryl attempted to get out of bed, did not identify any mechanism by which the plaintiff was injured or, more particularly the material facts upon which her claim was made in respect of any injury occasioned in relation to this incident. It is therefore clear that the pleading was at least deficient having regard to the requirements of UCPR 149(1)(b), if not UCPR 149(1)(c). -- 6 of 22 -- 7 [10] In its defence, the defendant‟s response was to admit paragraph 5(f) of the Statement of Claim and to deny in respect of paragraph 5(g) of the Statement of Claim that “as a result of the patient attempting to get out of bed that the plaintiff intervened in circumstances resulting in injury as alleged or at all (the incident).” [11] On the material before the court, it emerged that the catalyst for the proposed amendments to the Statement of Claim was the defendant‟s earlier proposal to seek leave to file an Amended Defence.2 In particular the proposed amendment to the response to paragraph 5(g) of the Statement of Claim, in paragraph 9 of the Amended Defence was identified as critically underpinning, the plaintiff‟s application. It is also convenient to set out the entirety of the proposal as to paragraph 9, as it appears in the proposed Amended Defence: “9. As to paragraph 5(g) of the Statement of Claim the Defendant denies that as a result of the patient attempting to get out of bed that the Plaintiff suffered intervened in circumstances resulting in injury as alleged or at all (the incident) on the basis: (a) the Plaintiff does not identify any mechanism of injury which gave rise to an injury merely by the patient, Beryl, attempting to get out of bed and therefore the Defendant does not believe the Plaintiff could have, or did, suffer injury as alleged; (b) the Plaintiff did not report the happening of any injury as a consequence of Beryl attempting to get out of her bed as alleged in paragraph 5(f) of the Statement of Claim and therefore the Defendant does not believe the Plaintiff suffered injury as alleged; (c) despite reasonable inquiries, the Defendant remains uncertain as to the nature of the allegations made by the Plaintiff as the material facts giving rise to an alleged injury as they are not pleaded in the Statement of Claim at all. 2 This was forwarded under cover of a letter dated 30 November 2012: Affidavit of A F Hawkes filed 15 February 2013; Ex DRD5 -- 7 of 22 -- 8 8.1 The reason the Defendant denies those matters alleged in paragraph 5(g) of the Statement of Claim are because the Defendant, despite reasonable inquiries, remains uncertain of those allegations upon the material facts pleaded in the Statement of Claim.” The contentions [12] The applicant although conceding that the unamended Statement of Claim was inadequate as to the requirements of the rules, nevertheless contends that it was cast in terms sufficiently broad to wholly encompass the case which is now sought to be specifically pleaded. Essentially it is contended that the applicant‟s case is and always has been, that she suffered injury in the incident when the patient, attempted to get out of her hospital bed and the applicant intervened and then, with the assistance of another nurse, put the patient back into that bed. As it is understood, the applicant may be unable to pinpoint when it was, or how precisely (by way of mechanism) in that course of events, that her injury occurred. [13] It can be observed that it is understood that it has never been in dispute between the parties that the applicant, in the course of her duties, became involved in this incident with this patient or that at a factual level, this incident was resolved by the return of the patient to her bed. [14] The applicant further contends that it was the respondent‟s proposed Amended Defence that, for the first time, raised particular issues in respect of the way in which the applicant had pleaded in respect of this incident. The applicant correctly identified that this potentially went to the heart of her claim. [15] The basis of the respondent‟s opposition to the application was expressed in terms that: 1. There is no explanation for the late pleading; -- 8 of 22 -- 9 2. It is made very late, some five and a half years after the events are said to have occurred; 3. The defendant is prejudiced in the conduct of its defence; 4. It advances an entirely new case.3 Discussion [16] In order to support the fourth point, also described by the respondent as “advanc[ing] a new and different case,”4 the respondent advanced a review of the recorded descriptions of the incident by the applicant, as available at the time that the allegation at paragraph 5(f) of the Statement of Claim was admitted, in the Defence filed on 8 December 2009. Essentially, the point that was made is that those descriptions do not include as part of her claim, any reference to any mechanism of lifting the patient back into bed.5 [17] The respondent also contended that the Further and Better Particulars provided by the applicant, in a document dated 12 April 2010,6 also did not identify or advance any “lifting case”. Of course, it is recognised that because paragraph 5(f) of the Statement of Claim was admitted, no Further and Better Particulars of that aspect of the pleading was sought or given. The respondent does however draw particular attention to the proposal in respect of paragraph 6(c) of the Amended Statement of Claim. It is first convenient to set out that proposal: “(c) The Defendant did not supervise the way in which the Plaintiff was performing her work duties, in that the Defendant failed to identify the incorrect technique being used by the Plaintiff and to train and require the Plaintiff to use a correct technique which did not carry with it the same risk of injury; Particulars 3 Respondent‟s written submissions at [3] 4 Respondent‟s written submissions at [13] 5 Except perhaps for that recorded in the report of Dr Searle dated 2 May 2009, in which the applicant is reported as asserting that she took hold of a small lady who was attempting to get out of bed and twisted herself in order to return the patient to the bed and that she was being helped by another. 6 Ex SAF1 at pp 49-53 -- 9 of 22 -- 10 The Plaintiff did not receive any counselling, review or advice from supervisors not to engage in team lifting which included lifting and twisting such as when the Plaintiff prevented Beryl from toppling from the bed and lifting her back into her bed with the assistance of Ms Newel. (ca) failed to provide the Plaintiff with accessible mechanical lifting assistance; Particulars The Plaintiff says that whilst the Defendant provided a sling hoist the hoist was not available in the surgical ward and with on two people present on night shift it was not possible to retrieve it. No slide sheet was present in the room.” [18] The respondent points to the departure from the previously supplied particulars, which were provided as follows:7 “(b) As to paragraph 6(c) of the Statement of Claim the „technique‟ the plaintiff used that the plaintiff alleges was „incorrect‟ was as follows: trying to prevent the patient falling to the floor by grabbing her and twisting in the process.” The respondent points to the absence, in those prior particulars, of any assertion that failure to identify any incorrect technique in relation to “lifting [the patient] back into her bed with the assistance of Ms Newell.” [19] The respondent contended that this “new version in relation to her lifting case” first appears in the report of engineers engaged by the applicant. That is, the report of InterSafe dated 18 May 2011, which is stated to be based on interviews with the applicant on 30 November 2010 and 2 March 2011. [20] Despite this report being obtained and disclosed, the respondent maintained that it “was justified in ignoring the version contained in [it], having safely concluded that the report was entirely inadmissible, being based on a set of facts which bore no 7 Ex SAF1 at pp 49-50 -- 10 of 22 -- 11 relationship to the facts as pleaded.”8 It was submitted that this justification was reinforced by: (a) The subsequent report of Dr Labrom, dated 29 November 2011, wherein it was stated: “I could not glean anything further from the history taken at the most recent interview. She maintains that she was supporting a female patient who had a previous total hip replacement. This female patient was trying to move from the side of her bed and Ms Downes was trying to prevent her moving from the bed. She twisted and felt back pain”;9 and (b) The subsequent repetition in the letter of the applicant‟s solicitor to Dr Barnett, dated 20 April 2012, that the applicant had “urgently intervened to prevent [a patient who attempted to get out of bed] falling to the hospital floor and injuring herself” and that “[i]t was during this incident that [the applicant] alleges she sustained the injury to her back.” [21] Significantly, the InterSafe report, dated 18 May 201110 expressly contains description obtained from interviews conducted with the applicant of the incident which not only provides detailed description of the applicant‟s assistance of the patient in terms of preventing her from getting out of or falling from her bed but also as to the mechanism of her return to the bed once the assistance of the other nurse had been obtained. That report contains the following: “18. During the incident of supporting and placing Beryl back into bed, Ms Downes could recall a twisting action on her back. Immediately following the incident Ms Downes could not recall feeling any pain. Several hours later, she experienced an onset of pain in her lower back, which did not subside. The shift had involved minimal other manual tasks, and as such, she attributed it to the incident involving Beryl. 19. As a result of the incident of supporting Beryl and team lifting her back into position, Ms Downes suffered injury as described in the medical reports….” 8 Respondent‟s written submissions, at [26] 9 Ex SAF1, at p.37 10 Affidavit of A F Hawkes filed on 15 February 2013; Ex DRD13 -- 11 of 22 -- 12 [22] It can be noted that the InterSafe report was disclosed to the respondent under cover of a letter dated 19 May 2011, which letter included the following: “Having regard to the contents of this report we invite you to settle liability in our client‟s favour and enclose an open offer in that regard. You will note in the summary to the report an allegation that you have not disclosed documents relating to your „no lift policy.‟ Assuming this to be the case please either disclose those documents or otherwise advise.”11 [23] The applicant contends not only that the circumstances outlined in this report clearly bore a relationship to the applicant‟s claim, but also that it is apparent that the respondent did not entirely ignore the report. First, it is pointed out that by letter dated 20 June 2011 the respondent sought that investigations be conducted by Verifact, including the obtaining of a statement from “the person the plaintiff alleges was assisting her at the time of her alleged injury”.12 However, it can also be noted that this letter expressly only referred the matter to the investigator on the basis of the mechanism of injury as described in the Further and Better Particulars provided by the applicant. That is: “The plaintiff alleges that as Beryl was attempting to get out bed, the plaintiff was required to try and prevent Beryl from falling to the floor by grabbing Beryl and this caused the plaintiff to „twist‟ in the process. In doing this the plaintiff alleges she injured her back.” [24] The applicant further points to the context that: (a) On 12 May 2010 a copy of an earlier statement of Ms Newell had been disclosed to the respondent. That statement is brief and appears to have been prepared by the witness herself. Of note she records that after hearing the applicant call for assistance and upon entering the room: “… I observed Di assisting the post operative joint replacement/repair patient back to bed, Di was positioned next to the bed with patient, I recall either 11 Affidavit of A F Hawkes filed by leave on 19 February 2013; ex AFH2 12 Ibid; Ex AFH3 -- 12 of 22 -- 13 an intravenous drip or a surgical drain was no longer insitu, I assisted Di to continue transferring and re- positioning the patient onto the bed. Di informed me post incident that she had heard a noise and when she entered the room to view patient, the patient had gotten out of bed, and was walking towards bathroom. I am unable to recall any other specific details of the incident”;13 and (b) Under cover of a letter dated 28 July 2011, Verifact forwarded a report on the investigations conducted and this included a statement taken from Ms Wendland (nee Newell), which relevantly included: “7. In reviewing this statement I confirm that whilst on night duty I heard the claimant call out for assistance whilst I was tending to one of my patients. I went straight to where she was, and was there within seconds of hearing her call out. 8. On entering the room, as previously stated, I noted the claimant assisting a post operative patient back to bed and also that either a drain or IV line had been pulled out. 9. I can‟t recall for sure now whether the patient was fully, partially or at all out of the bed, however I do recall assisting the claimant to get the patient back into position on the bed. 10. From when I entered the room until the patient was settled back into position on the bed, I would estimate that this all took approximately five minutes if that;”14 and (c) The respondent, by letter dated 20 June 2011, sought an opinion from Dr Low, a specialist in occupational medicine and in this instance, specific reference was made to and response sought and obtained, as to the circumstances referred to in the InterSafe report. [25] This history of obtaining information from Ms Wendland (nee Newell) also has significance to the respondent‟s complaints as to delay and prejudice. This is because the only prejudice contended to be occasioned to the respondent by the late 13 Ibid; Ex AFH1 14 Ibid; Ex AFH3 -- 13 of 22 -- 14 proposal as to the amended Statement of Claim, was identified in the assertion that this witness who was interviewed promptly after the proposed amendments were received, cannot now, so long after the alleged events, remember whether there was any lifting involved in moving the patient and if there was, the manner of such lifting. [26] It was further contended that had the applicant‟s case been earlier identified as a “lifting case”: “There was a reasonable prospect that the defendant would have been able to produce evidence in relation to it. That opportunity has now been entirely lost.”15 [27] Obviously that contention has to be viewed in the context set out above and noting the opportunity the respondent had to seek information from Ms Wendland in June of 2011 and after receipt of the InterSafe report and the expression of lack of any precise recollection of the events of the incident, in the earlier statement provided by this witness, sometime prior to 12 May 2010. [28] Otherwise the respondent places emphasis on what is described as “startling” lack of explanation for the late proposal to amend. By reference to the observations made in Hartnett v Hynes,16 as subsequently approved in Groves v Groves17 and Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq),18 this is contended as a highly relevant consideration for the grant of leave to amend. Conclusions [29] Although not expressed in direct reference to the application of UCPR 380, the observations made in Hartnett v Hynes are equally apposite to the application of that 15 Respondent‟s written submissions, at [11]-[12] 16 [2009] QSC 225 at [12]-[27] 17 [2011] QSC 411 at [10]-[11] 18 [2012] QSC 30 at [14]-[15] -- 14 of 22 -- 15 rule and all the more so, because UCPR 380 is directed at situations that will occur after the filing of a Request for Trial Date. [30] It can be noted that those observations begin: “Justice is the paramount consideration in determining an application to amend pleadings”.19 Both the decisions in State of Queensland v J L Holdings Pty Ltd20 and Aon Risk Services Australia Limited v Australian National University21 are cited as authority and the reasons in Hartnett v Hynes then proceeds to an examination of the effect of the Aon decision, in conjunction with recognising that the obligations imposed on litigants under UCPR 5, serve as qualifications of the rights of litigants to amend under the rules and in determining the justice of such applications, where objection is taken or leave is necessary. [31] The following summary of principles which were identified as assuming importance in the determination of that case, may also be usefully repeated here: “1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. 2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense. 3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues. 4. The Court should not be seen to accede to applications made without adequate explanation or justification. 5. The existence of an explanation for the amendment is relevant to the Court‟s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment.” 19 [2009] QSC 225 at [12] 20 (1997) 189 CLR 146 at 155 21 [2009] HCA 27 at [30], [98] -- 15 of 22 -- 16 6. The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment. 7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs. 8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend. 9. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses. 10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources. 11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense. 12. The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”22 [32] The explanation for this application lies in understanding that it has been prompted by the proposed Amended Defence. Whilst that does not explain why the applicant‟s pleading was for so long left in such an inadequate state or not amended at an earlier time, it is also apparent that the respondent‟s proposed amendments have critically brought this to a head. This is because those proposals are calculated not just to alert the applicant to an intention of attempting to exclude any reliance on a case based on any actions involved in returning the patient to bed but also to expressly raise particular deficiencies in the applicant‟s pleading, thereby potentially flagging contention as to whether there is any cause of action sufficiently pleaded. 22 [2009] QSC 225, at [27] -- 16 of 22 -- 17 [33] Accordingly it can be seen that the effect of this proposed amendment is to achieve compliance with the respondent‟s obligations under UCPR 149(1)(c) and 150(4). The same cannot be said for the existing defence: (a) Whilst the obvious deficiency of the existing pleading in the statement of claim, at paragraph 5(f), has always been abundantly apparent, the respondent, as was open to it, tactically chose to admit the allegation and therefore not to seek further and better particulars of this allegation, as it subsequently did in respect of other parts of the statement of claim, including paragraph 5(g); and (b) The existing response to paragraph 5(g)23 only served to deny that any injury had been occasioned by the incident, described as “Beryl attempting to get out of her bed”. The stated explanation for that belief24 was: “because the defendant, despite reasonable enquiries, remains uncertain of those allegations upon the material facts pleaded in the statement of claim.”25 [34] This is not an occasion for any determination as to the applicant‟s credibility or what is pressed as evidence of the provision by her, of variable versions of the incident. An obviously important consideration is that the defendant has been aware of the contents of the InterSafe report, since May 2011 and clearly then had opportunity to make inquiry about the matters raised in that report. However it can be observed that upon a review of the materials collected and available through the pre-suit procedures, which are necessarily involved in matters of this kind and the process of disclosure since then, that apart from the InterSafe report, those materials were suggestive only of a mechanism of injury by acting to prevent the patient from leaving the bed. That situation also appeared to be confirmed by the further and 23 In pars 9 and 8.1 of the defence (par 8.1 appears to be incorrectly numbered as it immediately follows par 9 in the defence) 24 As required by UCPR 166(4) 25 This also appears to more in the nature of a reason for a non-admission pursuant to UCPR 166(3), rather than a reason for a denial pursuant to UCPR 166(4) -- 17 of 22 -- 18 better particulars dated 12 April 2010 and provided as to par 6(c) of the statement of claim.26 [35] However the provision of further and better particulars falls into a different category to the material facts necessarily to be contained in pleadings. As White J observed in Ballesteros v Chidlow & Anor No 2:27 “The function of pleadings is to state with sufficient clarity the case that must be met, Gould v Mt Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517. The Rules of Court exist to bring that about and r 166(4) in particular has been beneficial in achieving that object. Pleadings define the issues and make clear that which is in issue for proof at trial. Nonetheless, the overriding philosophy of the UCPR set out in r 5 must not be overlooked – “the rules are to be applied with the objective of avoiding ... technicality and facilitating the purpose” of the rules. ...” [36] Although it is only because of the absence of specificity and pleading of material fact, accompanying the description of “the incident” in par 5(f) of the existing pleading, it is at least not clear that the facts upon which the InterSafe report was based, fall outside the parameters of that existing pleading. For the reasons that have already been given, that was a situation which the respondent allowed to continue until it proposed its amended defence at the end of November 2012. In this regard, it is also of some significance to note that on the hearing of this application, the respondent expressly conceded that there was no necessity to be concerned with UCPR 376(4) on the basis that it was not contended that the proposed amended statement of claim included any new cause of action. This is because the distinction recognised by Applegarth J in Hartnett v Hynes,28 after reference to the observations of McMurdo J in Borsato v Cambell & Ors,29 was: “Amendments that amount to “the refashioning or redesignation or further particularisation of a claim on the basis of facts already pleaded” will not involve the inclusion of a new cause of action. The situation is otherwise where the “new case” made by an amendment is one “varying so substantially from what has previously been set up that it would involve investigation of matters of 26 See par [18] above 27 [2005] QSC 285 at [35] 28 [2009] QSC 225, at [24] 29 [2006] QSC 191, at [8] -- 18 of 22 -- 19 fact or questions of law, or both, different from what have already been raised and of which no fair warning has been given.”30 [37] Although the initial request by the respondent was for the applicant‟s consent to its proposed amended defence, the reality was that this also necessarily required the leave of the court pursuant to UCPR 380. The respondent did not over look that and expressly sought consent to avoid the necessity to bring any application before the date of trial. It can be noted that the description in the covering letter, of the effect of the amendments was: “Firstly, whilst the amendment to the defence looked to be substantial, in truth the bulk of the amendments are primarily to incorporate the amended further and better particulars which were provided to you in September 2010.” Secondly, the amendments correct some typographical errors with the numbering of the original pleading. We have attended to those corrections simply for the assistance of the court and the parties. Thirdly, there are some amendments of a relatively minor nature.”31 The amended further and better particulars filed on 30 September 2010 did not provide any further and better particulars in respect of paragraphs 9 and 8.1 of the defence. Otherwise the letter sought a response by 11 January 2013 with the indication that if a formal application was necessary before trial then an attempt would be made to list the matter for hearing around the end of January 2013. [38] Unfortunately, the solicitor for the applicant did not respond until 1 February 2013 and the explanation for that was set out in the letter of that date, as follows:32 “We refer to our mutual conversation today and to recent correspondence in this matter and apologise for any delay in responding. The dominant reasons for our delay include the following: - 1. Both our counsel (Mr Lee Smith) and ourselves were under significant work load pressures in the lead up to Christmas. 30 Of Hartnett v Hynes [2010] QCA 65, at [34] –[35] 31 Affidavit of A.F Hawkes filed 15 February 2013: EX DRD 5 32 Affidavit of A.F Hawkes filed 15 February 2013: EX DRD 7 -- 19 of 22 -- 20 2. Our Adrian Hawkes and our counsel were both on holidays for the first half of January 2013. 3. We relocated our offices in the third week of January 2013 and experience very significant and unforseen complications with our telephone and internet communications being inoperable. 4. As a result of recent flooding in the last week of January 2013, our office was without electrical power and any form of communication for four days. Further, our internet communication system was not fully functional until yesterday. Our counsel Mr Lee Smith is in the process of providing advice in respect of your letter dated 30 November 2012 and enclosing a draft amended defence. At this stage, counsel‟s early proposals are likely to be that we will consent to your request, however, it appears that we may need to amend our pleading as well and therefore it would be inappropriate for you to file an amended defence until we provide to you a request to consent to us amending our pleadings. In that regard, we hope to have further correspondence including a draft amended statement of claim early next week.” That proposed amended statement of claim was then provided under cover of a letter dated 6 February 2013 and from there and on 14 February 2013, this application was filed. [39] It is apparent that the full potential ramifications of the difficulties occasioned by the state of the pleadings in this case, has emerged more clearly as the extents leading to and concerning this application progressed and as I have already noted above, it was eventually recognised by all, that the timing of the application and the flow-on consequences of the determination of it, whatever that might be, necessarily meant that the trial could not proceed as listed on 25 February 2013. Reaching that conclusion on 19 February 2013, also served to limit the extent of wastage of cost and effort, that might otherwise have been occasioned by a later adjournment of the trial. [40] In contrast to the situation confronting the court in Hartnett v Hynes, this is the first attempt by the applicant to amend her pleadings and one designed, as to at least the -- 20 of 22 -- 21 contentious part of the proposal, to rectify a fundamental deficiency in the applicant‟s pleading. [41] It can easily be recognised that the pre-suit procedures in respect of proceedings of this kind are premised on the early identification of the basis of claims that are made and that this provides a defendant with the opportunity of early inquiry, in response and also that the late identification of specific issues in such proceedings may lead to the consequence of the parties being left to rely upon the dimmed and imperfect recollections of witnesses, who are then expected to cast a previously unprompted memory back over many years. However, it is not unusual for courts to have to deal with evidence of this kind and to pay due regard to the incidental limitations. [42] In this instance, the applicant only pressed prejudice upon the basis that recent inquiry of Ms Wendland (nee Newell), after receipt of the proposed Amended Statement of Claim, had disclosed that she was now unable to recall whether there was any lifting involved in moving the patient and if so, the manner of such lifting. However not only must that assertion be considered in the light of the opportunity that arose in June 2011 to then seek such information, but also the lack of professed detailed recollection, by this witness, in the first statement provided by her. This is not a situation of the type described by Keane JA in Page v Central Queensland University,33 as expressly cited in Hartnett v Hynes:34 “While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party.” 33 [2006] QCA 478 at [24]. 34 [2009] QSC 225 at [17] -- 21 of 22 -- 22 [43] In these circumstances, it is appropriate to grant the applicant leave to file and serve the Amended Statement of Claim, subject to an order that paragraphs 2(c), 2(d), 2(i), 4(c), 8 and 9 are struck out. [44] Accordingly, I will hear the parties as to further and consequential orders. -- 22 of 22 --