New South Wales Supreme Court CITATION : Samardzic v State of NSW [2000] NSWSC 997 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20062/98 HEARING DATE(S) : 23 October 2000 JUDGMENT DATE : 30 October 2000 Zlatko Joseph Samardzic (Plaintiff) PARTIES : State of New South Wales (Defendant) JUDGMENT OF : Master Harrison Mr M K Rollinson (Plaintiff) COUNSEL : Mr S M Kettle (Defendant) Teakle, Ormsby, George SOLICITORS : (Plaintiff) Crown Solicitors Office CATCHWORDS : Review Registrar's decision - summary judgment LEGISLATION CITED : Supreme Court Rules - Part 15 r 26, Part 13 r 5, Part 20 rr 1(1), 4(5) & (7) Beaufort Air-Sea Equipment Pty Limited v Emhart Australia Pty Limited (NSWSC unreported, Master Malpass, 18 December 1992) Westpac Banking Corporation v Abemond Pty Limited & Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) Modern Woodcraft Pty Limited v Nett (NSWSC unreported, Young J, 7 March 1997) CASES CITED : Dye & Ors v The Griffin Coal Mining Co Pty Limited & Anor [1998] WACA 184 (32.798) Brickfield Properties Ltd v Newton [1971] 1 WLR 862 at 880 Stones James v Pioneer Concrete (WA) Pty Limited [1985] WAR 233 at 240-41 McGee v Yeoman [1977] 1 NSWLR 273 DECISION : see para 23 10 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON MONDAY, 30 OCTOBER 2000 20062/98 - ZLATKO JOSEPH SAMARDZIC v STATE OF NEW SOUTH WALES JUDGMENT (Review of Registrar's decision; summary judgment) 1 MASTER: By notice of motion filed 26 May 2000 the defendant seeks that the order made by Registrar Howe on 1 May 2000, granting leave to the plaintiff to file an amended statement of claim, be reviewed pursuant to Part 61 r 3(1) of the Supreme Court Rules (SCR). Alternatively an order pursuant to Part 15 r 26 or Part 13 r 5 of the SCR that the proceedings be dismissed. The defendants did not rely on any affidavit evidence. At the outset, I should state that there is no reason to strike out these proceedings pursuant to Part 15 r 26 or Part 13 r 5 SCR so this part of the application fails. Review 2 There are several cases which are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) and Modern Woodcraft Pty Ltd v Nett (NSWSC unreported, Young J, 7 March 1997). 3 From these decisions, the approach I should take is that I should inform myself of all the material before Deputy Registrar Howe at the time when he made the orders. I can consider the fresh evidence which the plaintiff has put on and which has not been objected to by the defendants. I can allow fresh evidence to be tendered. I should also make my own decision based on the material before me and having heard legal argument. No new material was tendered. Before the Deputy Registrar were the affidavits of the plaintiff sworn 9 March 2000, the plaintiff's solicitor Peter George sworn 15 December 1999 and a report of Dr Day dated 24 November 1987. The Part 33 particulars were referred to in argument before the Deputy Registrar. 4 The review from the Deputy Registrar is in relation to a notice of motion where the plaintiff sought leave to amend his statement of claim. In 1989 the plaintiff filed an ordinary statement of claim in the District Court. The ordinary statement of claim pleaded that the plaintiff was employed as a police officer. Paragraphs 2, 3 and 4 of the ordinary statement of claim pleaded: "2. It was the duty of the Defendant to take all reasonable precautions for the safety of the Plaintiff while he was engaged upon his police duties, not to expose him to risk of damage or injury of which it knew or ought to have known, to provide and maintain proper and safe medical care and to provide a proper and safe system of work. 3. In or about October 1987 the Defendant failed to provide proper medical care for the Plaintiff and to immunise him against hepatitis notwithstanding that risk of infection of hepatitis was prevalent and likely in respect of police officers including the Plaintiff. 4. By reason whereof the Plaintiff subsequently was infected with hepatitis and sustained severe injuries and has suffered loss and damage." 5 The amended statement of claim seeks to allege four more separate incidents. Those incidents occurred in March, May, August, September and October 1987, whereby the plaintiff alleges that in the course of his duties he came into contact with persons who were infected with Hepatitis C and he may have contracted Hepatitis C from those sources. 6 Part 20 r 1(1) of the SCR states: "(1) The court may, at any stage of the proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings." 7 Part 20 r 4(5) states: "Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of or substantially the same facts and a claim for relief on that new cause of action." 8 Part 20 r 4(7) states: "This rule does not limit the powers of the Court under rule 1." 9 On 1 May 2000, Deputy Registrar Howe gave an extempore judgment. The Deputy Registrar stated: "What I intend to do is this. If I go to the document entitled amended statement of claim which is attached to the notice of motion, in paragraph 3 I intend to strike out the words "in or about October" and substitute the word "during". I intend to strike out paragraph 3(b) in its entirety and re-number paragraph (c) as (b). I intended to allow that document as amended by me to be filed for the following reasons. The plaintiff did have Hepatitis. There is an incubation period of some six months. It's an amendment to the pleadings now which would fall into what is envisaged in part 20 rule 1(2). that is to avoid a multiplicity of proceedings and I take note of rule 4(5) of that same part . ..." 10 Deputy Registrar Howe granted leave to the plaintiff to file an amended statement of claim within 14 days and ordered the plaintiff to pay the defendant's costs thrown away by the amendment. The amended statement of claim was duly filed on 9 May 2000. 11 The defendant submitted that leave should not have been granted under either Part 20 r 1 or Part 20 r 4(5) SCR because the further incidents are new and separate cause of action which do not arise out of substantially the same facts. According to the defendant, the plaintiff should be required to seek an extension of the limitation period under the Limitation Act 1969 and put on evidence. In relation to discretionary matters, the defendant also submitted that the plaintiff had not explained his delay in making the application and that it suffers presumptive prejudice if the amendments are allowed. 12 The defendant referred to Dye & Ors v The Griffin Coal Mining Co Pty Limited & Anor [1998] WASCA 184 (32.798) where the Western Australian Court of Appeal disallowed amendments to a statement of claim which changed the allegation of a back injury arising from a single journey in a vehicle to a series of repeated events on a series of roads in a period of 9 or 10 months. The court held that amended allegations brought into consideration an entire course of conduct over an extended period and it involved different facts and an expanded range of issues. Order 21 r 5 of the WASCR is similar to Part 20 r 4(5) SCR(NSW). However the Western Australian rules do not include the Part 20 r 1 and Part 20 r 4(7). 13 The Court of Appeal stated that whether a claim is "new" or whether it arises substantially from the same facts is largely a question of degree. It is enough if the overlap between the facts is great that a new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action - see Brickfield Properties Ltd v Newton [ 1971 ] 1 WLR 862 at 880; Stone James v Pioneer Concrete (WA) Pty Limited WAR 233 at 240-41. 14 The plaintiff's case has always been that it was the defendant's duty to take reasonable precaution for his safety while he was engaged in his police duties. The duty of care included that the defendant should have provided and maintained proper and safe medical care and a proper system of work. It was always pleaded that the defendant breached its duty of care in that it did not immunise the plaintiff against Hepatitis notwithstanding the likely risk to a police officer of coming into contact with persons with Hepatitis C. 15 The plaintiff held the view that he came into contact with Hepatitis B via an encounter with Mr Petrinovic on 15 October 1987. He had had an earlier incident with Mr Petrinovic in March 1987. It is pleaded that Mr Petrinovic is a known heavy drug user. The 15 October 1987 event was subsequently particularised in the Part 33 particulars. The plaintiff was tested for Hepatitis on 15 October 1987 and the results were positive. However, the report of Professor Cossart obtained in December 1999 did not support the plaintiff's view. 16 On 1 December 1999 Professor of Infectious Diseases, Y Cossart furnished the plaintiff with a report. Professor Cossart stated that the incubation period of acute Hepatitis B is approximately 12 weeks but may be as short as 2 to 3 weeks. On the basis of this report, it is unlikely that the plaintiff was infected instantaneously. Hence the October 1987 date of infection appears to be incorrect. Professor Cossart opined that it was possible that the plaintiff's Hepatitis B was acquired on 8 September, 21 August or 4 May 1987 and of these threes dated 21 August is the most probable. There is a competing report of Dr Day of 24 November 1987 obtained by the defendant (Ex C). 17 In the plaintiff's statement to his employer of 16 December 1987 he said at paragraphs 8, 9 and 10: "8. I personally believe that I contracted Hepatitis B, performing my duties as a Constable of Police. There are many occassions (sic) were I have handled prisoners who are addicted to various drugs, attended serious motor vehicle accidents where blood had been splashed onto myself, or assaulted by various offenders. Some other that come to mind are: On 2 October, 1987 Christopher Francis CONNORS and Patrick MATHEWS were charged with assaulting me. As a result of the above offenders being arrested CONNORS, received a blow to the nose area, and was bleeding heavily on myself and other Constables who assisted in the arrest. During that scuffle I received minor abrasions to my right and left hands. 9. On the 31St August, 1987 Geoffrey Patrick HENNESSY was arrested for break and enter offences. This person is a serious drug user/offender, which was in close contact with myself as he was arrested, possibly suffering also from Hepatitis B. Also a scuffle resulted as the offender was being arrested, in which I suffered minor abrassions, (sic) and had to handle the offender. Also on the 4th May, 1987 Gary Grant MURDOCK, a drug user was arrested for attempt steal motor vehicle and various drug offenses (sic). This offender was also chased and a scuffle broke out were I suffered minor abrasions, and blood was transferred on my body. 10. Unfortunately I cannot say from who I contacted (sic) the Hepatitis B all I know it must have been whilst handling prisoners or offenders. My lifestyle would not suggest that I could have contracted the desease (sic) at Home . ..." 18 It has always been within the defendant's knowledge that the plaintiff as a police officer could have been exposed to Hepatitis B from 1986 (when he joined the Police force) until 15 October 1987. Rather than plead an entire course of conduct case, the plaintiff has chosen to limit his case to four specific encounters. There is a contemporaneous note in the plaintiff's police note book of exposure to Hepatitis C and other diseases in relation to at least one of these encounters. It is the dates and the prisoners which have changed, not the nature of the duty of care and the breach of the duty of care. It is my view that it is borderline whether these amendments arise out of substantially the same facts. It is convenient to record that the plaintiff cut his hand at home in September 1987. While this is a relevant factor for the doctors to consider this injury as being a possible exposure to Hepatitis B it did not arise from his employment. The September 1987 incident should not be permitted to be pleaded in the statement of claim. 19 However, the proposed amendments nevertheless can be allowed pursuant to Part 20 r 1 SCR. In McGee v Yeoman 1 NSWLR 273, the Court of Appeal stated that the power to amend is wide and in general a party who seeks to amend will be permitted to do so to enable the real questions in dispute between the parties to be tried. This discretion is unfettered. 20 The defendant submitted that it will be prejudiced. It did not put on any affidavit evidence of actual prejudice. However, I accept with the passing of 13 years, memories will have faded and there will be presumptive prejudice. Nevertheless, there are contemporaneous records where the plaintiff has always asserted that a number of incidents may have been the source of the infection. The delay in amendment was due to the late obtaining of an experts report. The plaintiff is a relatively young man who has been unable to work since 19 May 1994, allegedly as a result of contracting Hepatitis B. If the plaintiff's claim is successful, it will be a substantial one. The plaintiff should be allowed to argue his case on its merits. 21 The plaintiff has discharged his onus and I am satisfied that it is just and reasonable that the amendments be granted. I agree with the orders of the Deputy Registrar (with the exception of the September allegation for reasons given earlier). The Deputy Registrar's decision of 1 May 2000 is affirmed except in so far as the September 1987 incident is pleaded. The notice of motion filed 26 February 2000 is dismissed. 22 Costs are discretionary. Costs should follow the event. The defendant is to pay the plaintiff's costs. The costs order made by the Deputy Registrar is to stand. 23 The orders I make are: (1) The Deputy Registrar's decision of 1 May 2000 is affirmed except in so far as leave was given to add a September 1987 incident. (2) The notice of motion filed 26 February 2000 is dismissed. (3) The defendant is to pay the plaintiff's costs of the review. ********** Last Modified: 11/07/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.