Gardiner v Mt Arthur Coal Pty Limited [2021] NSWSC 171

Supreme Court New South Wales

Medium Neutral Citation: Gardiner v Mt Arthur Coal Pty Limited [2021] NSWSC 171 Hearing dates: 1 March 2021 Date of orders: 1 March 2021 Decision date: 01 March 2021 Jurisdiction: Common Law Before: Johnson J Decision: 1. The Plaintiff is granted leave in accordance with paragraph 1 of the Notice of Motion dated 26 February 2021 to file and rely upon the Amended Statement of Particulars in the form annexed to the Notice of Motion. 2. The Plaintiff is to pay the Defendant's costs of the Notice of Motion. Catchwords: PRACTICE AND PROCEDURE – claim for damages for personal injury – application to amend statement of particulars – application granted Legislation Cited: Civil Procedure Act 2005 Cases Cited: --- Texts Cited: --- Category: Procedural rulings Parties: Angela Megan Gardiner (Plaintiff) Mt Arthur Coal Pty Limited (Defendant) Representation: Counsel: Mr IDM Roberts SC; Mr DR Benson (Plaintiff) Mr MT McCulloch SC; Mr DS Stanton (Defendant)

Solicitors: Slater and Gordon Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2018/125038 Publication restriction: ---

Judgment 1. JOHNSON J: The Court is about to embark upon the hearing of a claim for damages by the Plaintiff, Angela Megan Gardiner, against the Defendant, Mt Arthur Coal Pty Limited. 2. The claim arises out of an incident on 17 August 2015, when it is alleged that the Plaintiff suffered injury in the course of her employment with the Defendant at the Mt Arthur Coal Mine when she was seated in and operating a large dump truck, which itself was operating underneath an even larger excavator being operated by another employee of the Defendant. 3. The proceedings were commenced in the District Court by a Statement of Claim filed on 13 April 2018. 4. The proceedings were transferred to this Court on 26 February 2020. There is no judgment on the court file explaining who made that decision and for what reason. However, the Court understands from what has been said at the bar table, that the reason for the transfer from the District Court to the Supreme Court related to the jurisdictional limit on damages in the District Court and the possibility that any damages recovered by the Plaintiff may exceed that limit. This is a not uncommon scenario in which personal injuries proceedings are moved from the District Court to the Supreme Court. 5. At the time when the Statement of Claim was filed in the District Court on 13 April 2018, a Statement of Particulars concerning personal injury proceedings was also filed. That Statement, which was dated 12 April 2018, has remained in an unamended form from that day until today. 6. By Notice of Motion filed in Court today, the Plaintiff seeks leave to amend the Statement of Particulars in a number of respects. In support of that Notice of Motion, an affidavit of Stuart Brendan Barnett sworn 25 February 2021 is read. 7. It appears from Mr Barnett's affidavit that parts of the Statement of Particulars were drafted for reasons which cannot now be explained from Mr Barnett's examination of the file. Other parts of the proposed amendments are said to flow from developments in the treatment of the Plaintiff and information which has arisen from expert reports which have been forthcoming on behalf of both the Plaintiff and the Defendant. 8. The application is opposed by the Defendant in one particular respect. 9. There are incidental amendments to parts of the Statement of Particulars which deal with the question of injury to the coccyx of the Plaintiff and associated matters, as to which no objection is taken for the Defendant, although it is submitted, understandably, that there will be a desire to ask questions of witnesses on that particular topic if those matters are included in the Statement of Particulars. 10. From the Court's perspective, there is no difficulty with that, and those parts will be the subject of a grant of leave. 11. Of particular controversy is what was subparagraph (b) under the heading "Particulars of Loss of Earning Capacity and Future Economic Loss". As originally drafted and included in the Statement of Particulars of 12 April 2018, that paragraph said: "The plaintiff has been variously partially and totally incapacitated for her pre-injury employment from 17 August 2015 to date and continuing and claims loss of wages being the difference between that which she would have earned uninjured, $2,500.00 net per week and that which she is found to be able to earn in some suitable employment, that is, approximately $1,000.00 net per week to pensionable age at 65 years." 1. The solicitor for the Plaintiff notified the solicitor for the Defendant on 5 February 2021, foreshadowing a desire to amend that paragraph so that it would now read: "The plaintiff has been variously partially and totally incapacitated for her pre-injury employment from 17 August 2015 to November 2016 and was, from November 2016 to approximately June 2018, totally incapacitated for employment. Since June 2018 the Plaintiff has had a theoretical capacity to pursue a light semi-sedentary occupation where she can sit and stand at will but in view of her industrial history and nature of her injury and the incapacity that has followed such employment prospects are extremely limited." 1. What will be noted, in particular, is that the words which appeared in the original version which stated a figure of "approximately $1,000.00 net per week to pensionable age at 65 years" have been deleted. 2. It was submitted by Senior Counsel for the Defendant that there was prejudice to the Defendant if this amendment was allowed in that a form of concession contained in the "$1,000.00 net per week" part was sought to be withdrawn and replaced by a broader and non-specifically worded claim. It was submitted that, not only is there a need to particularise the claim for economic loss, but that the orthopaedic specialists have proceeded on a particular basis and that what is now sought to be inserted in the particulars has not been explored directly by them. 3. In response to a question from the Court, Senior Counsel for the Defendant did indicate that, if the amendment was allowed, certain steps could be taken to allow that aspect to be explored in the hearing, including obtaining a supplementary report from Dr Rowe and the capacity to ask questions of Dr Rowe and Dr Ghabrial at the scheduled concurrent evidence session, which will take place later in this five-day hearing. 4. The Court is considering an application to amend documents for the purpose of s.64 Civil Procedure Act 2005. That section brings into play a number of other provisions, including ss.56, 57 and 58 of that Act. Section 64 provides for the Court, subject to s.58, to make all necessary amendments for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or correcting any defect or error in the proceedings. Section 58 itself requires the Court to have regard to the dictates of justice in the particular case and a number of other factors set out in s.58(2). 5. The evidence in support of the application is a little unsatisfactory, in that someone must have formed the view that these words should be put into the Statement of Particulars in the first place. There is no explanation as to how that came about in Mr Barnett's affidavit. 6. What is clear is that the legal representatives for the Plaintiff now identify the issues in the proceedings as calling for some differently worded statement concerning this aspect of the particulars. 7. It is true that the orthopaedic specialists, and others, including Mr Bass, have prepared material for the Court on the basis of the unfolding picture with respect to the Plaintiff. It does remain the case, however, that there was initially a type of concrete assertion that put a cap of approximately $1,000.00 net per week to pensionable age at 65 years on this aspect of the particulars. 8. It does seem to me, however, that the dictates of justice in the case warrant the Court granting leave to allow the amendment. The prejudice which the Defendant will suffer is capable of being met by appropriate steps to invite a further report from Dr Rowe if that was considered necessary and, certainly, to ask such questions of Dr Rowe and Dr Ghabrial and, indeed, any other witness touched by this issue so that this question can be fully and fairly explored at the hearing. 9. What was put in the original Statement of Particulars may have served to create a type of cap (and, perhaps, an uninformed cap) on the suggested earning capacity of the Plaintiff at a time when, on any view of it, there seems to have been considerable uncertainty surrounding that issue. Accordingly, I do not think that it would accord with the dictates of justice to hold the Plaintiff to this somewhat oddly worded document. 10. It is, of course, necessary to note that the application is being made very late in the day. However, it is not being made in a way which gives rise to any prejudice which cannot be otherwise met in the course of the hearing by the taking of appropriate steps by the parties. 11. Accordingly, I grant the Plaintiff leave in accordance with paragraph 1 of the Notice of Motion dated 26 February 2021 to file and rely upon the Amended Statement of Particulars in the form annexed to the Notice of Motion. 12. The Plaintiff is to pay the Defendant's costs of the Notice of Motion. I will consider such further orders as may be appropriate with respect to costs, to protect the interests of the Defendant in any aspects touching on the conduct of the hearing itself.