Birtles v Carpentaria Transport Pty Ltd [1995] QSC 166

_ Al State Reporting B~u ?--<;~DI ..~ :3 C C,«; If l:.b ( ' TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sord without the written authority of the Director, State Reporting Bureau.) . :- ..i SUPREME COURT OF QUEENSLAND CIVIL'JURISDICTION FRYBERG J No 190 of 1992 PAUL RENE BIRTLES and CARPENTARIA TRANSPORT PTY LIMITED TOWNSVILLE . . DATE 1 5 / 0 5 / 9 5 JUDGMENT Plaintiff Defendant i 4th Flnnr. ·· Th,- 1.aw rm,rt.,;. Genrr,e .f;ifrPPI. Brl.1oban~> O~ 4000 Teleohone: (07) ·227.-4360.: Facsimile: (07) 227 5532. -- 1 of 4 -- l~ .. ·--·-·- ..........--•--- 150595 r_. ~:.::.~;_.~~-~~~~'.~:}""~~~j;~1/~ ~:! .·;,: ·'":~;, HIS HONOUR: In this matter the plaintiff has, on the morning of the trial, applied for leave to amend the statement of claim in accordance with the document handed to me. I will cause that document to be marked Exhibit 1. ADMITTED AND MARKED "EXHIBIT 1 11 HIS HONOUR: There are various amendments in the document to paragraphs six and seven of the statement of claim to which no objection is taken. However, the defendant opposed the grant of leave in respect of amendments to paragraphs eight and nine. The reason for the opposition is that the amendments come late after a certificate of readiness has been signed by the plaintiff and without, until at least last Friday, any substantial notice of the proposed amendments having been given to the defence. The amendments raise new claims in relation to the cervical spine. They raise the possibility of aggravation of a pre- existing lumbar disc degeneration and they make new claims in respect of headaches, reactive depression, possible future surgery and a greatly enlarged Griffiths and Kerkemeyer claim though the latter does not appear from the amendment itself due to its lack of particularity. The defendant argues that these claims will require further i~-~~-~~igc3:t_!_~~J _~i-~l __re_qui~~ _~-~!11~ ___fo~_t?i_e (l~~e_ndant to be . advised as to.its position. and will require possible further medical examination of the plainti~f. In these submissions I think the defendant is quite correct. The question is •. 10 20 30 CJ 40 / .\. 50 60 '?,;~,?~#.-:+S:_~'}:--' '.);~:~;,,;~~i¼Xi~:~~'..'/:;j•::__., •. '.: '}··~:'.·:··.~::2 .~t~~~(~{fD+:J·~~-:~;- --~~--- -:·:·· -··•-~•-· .....· _·.. _ JUDGMENT ~~~~;,;;~:;._~~~~-~-;__ .--:··,: ~::_:~;~~~;~~c:7~":::,;:__:>.,·~-- · · •;~~;~~;;-;.~~~-,-- __ -·::.- 0 ·...·:· ______ ·~:-·:--s_~~ ~~-. _________.___ . -- 2 of 4 -- 1.505,95. > . ··":-, whether or not those matters are sufficient to justify not granting the amendment. The action is not an old one. It was commenced by writ in December 1992 and is in respect of an incident in December 1990, but it .is not a fast track action either. The defence•. is, however, unable to point to anything· in the conduct of the action to date which would render it inappropriate for the amendments to be granted provided the prejudice to the defence can be overcome. That prejudice can, in my judgment, be overcome by an adjournment and I think Mr Baulch really conceded that this was so. Although there is considerable recent authority to support the view that the Courts are hardening their attitude towards allowing late amendments, it seems to me that particularly in a personal injuries action where one has the situation which I have already described, it is appropriate to allow the amendments subject to the due delivery of particulars and to any necessary adjournment. I am therefore prepared to and I do grant the plaintiff leave to amend the statement of claim in accordance with Exhibit 1. I note the plaintiff's agreement to provide further particulars and it seems.in the light of that, unnecessary to make any order in that regard. The inevitable consequence of the matter is that there must be an adjournment and the action is therefore adjourned back to the callover list. The defence asks for costs and there ·:.·--_~;:' ·:'.::·~~-~;;;,~t;·,:::::~;i:~~?~;£~2~;~~~-1?.:.~:::-::~;x~;:.3;~zy·';:':·~:~;;:1 ~~:.~;:~~ -·•··:3-~ ::_: _____ .__ .. ~ --····--·:·~:~.~:~~-~--~---· ..... .. ____ .___ '1_~~GMENT. ~- . c··-,.,.·:.~~::;c~•'·f~;~•--; ;.:.;;,-:~k~.ii~~~~::i: ..- ·--•; ,.,2;l}E~;;L4~,::-·~-~J;iz::,;~.;.::.•-=• :·: .. -~:·<_ .:·"··· .i 10 20 -~- 30 ·.• 40 50 60 -- 3 of 4 -- _.,,~ 150595 •'~ ~ - : •· . . - · .. _.·_:J... ... -·. ,, . . is no basis upon which the plaintiff can oppose such an ·order. I order that the defendant's costs thrown away by the adjournment to be paid by the plaintiff and in making that 10 order I accept the undertaking given by the solicitor for the plaintiff to pay those costs personally as well as to pay any costs thrown away by the adjournment incurred on the plaintiff's side. ~-- 20 30 40 50 60 . ( / -'~:·:::~~:::~}~;B.:_:·:~·t?;:~:f:'.j:2'.2ff§:=%-+;i-<:F:~!- ::-~.: ., . _-,- _-- ___ .. _,:· __ ;. _· .. --4. ____ --- .. _· ________ ·. ----· •. ~ -:· ··_ -. :..gUDGMENT. :.· ..:::;;:<Ji~~~; :·· .. - - .:··___ .... , ·.-_.:.:·.-.~:-::s:~ ------···•-· .. - ........--¥·--------~-·· .·-------.....----••·-----·-·- --··•-·. . --- .. ···•··· --- -· -- ... . ·- -- -·--··... ···-····-··- ·--··. -.----·· ·- -------··· ··----. ·---· .. ,,_.. - ........._,_ ~:-~::_:·~~~✓~-~:~6,_:.;;;~-~'.. ::·::.-_ ._· .:-- __ :_.".".::·,:~--~..... 3·.-~--- --~-·::~-. ~•:_· -- ~----~---·-·~--~.:..:-·..:·, .: ... -- -. -_____ :_____ . -;c~·:·. :_·;" .•., --- . - --- :._.·;;.. (.. ~.-~.:- :-::;; •••• _____ .__ _______ ·: .•. ·--- - ·:: .. •__- •... ··_ .. .,_ --- -- -~ .. ,.,.. :.·.· -.·····: ~--,.. ~ :: -- 4 of 4 --