Supreme Court New South Wales Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.4) [2013] NSWSC 1905 Hearing dates: 11/10/2013, 4/11/2013 Decision date: 19 December 2013 Jurisdiction: Common Law Before: Garling J Decision: On 11 October 2013, on the first application: (1) Grant leave to the plaintiff to file a Second Further Amended Consolidated Statement of Claim by 10 am 17 October 2013. (2) Order the plaintiff to pay the defendants' costs of and occasioned by the amendment On 4 November 2013, on the second application (1) Grant leave to the plaintiff to file a Third Further Amended Consolidated Statement of Claim, on or before 4pm 7 November 2013, which is in the form of the Third Amended Consolidated Statement of Claim - Annexure A to the Notice of Motion dated 4 November 2013, except that paragraph 42 is to be deleted therefrom. (2) Order the plaintiff to pay the defendants' costs of and occasioned by the amendment. (3) Otherwise dismiss the Notice of Motion filed 4 November 2013. (4) Order the plaintiff to pay the defendants' costs of the Notice of Motion. Catchwords: PROCEDURE - two motions to amend statement of claim - application of ss 56 and 57 of Civil Procedure Act 2005 -amendments appropriate where additional evidence can be obtained without any real delay and without any undue expense - amendment of pleadings to reflect evidence is permissible - amendment is not appropriate in the interests of justice, where a new claim is pleaded and evidence is not readily available - No point of general principle Cases Cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 Category: Procedural and other rulings Parties: Sue Ellen O'Reilly (P) Western Sussex Hospital NHS Trust (D1) Manoj Sen (D2) Mansour Poushin (D3) Representation: Counsel: Mr Bartley SC / Mr Toomey (P) Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3) Solicitors: Beilby Poulden Costello (P) Kennedys (Australasia) Pty Ltd (D1, D2, D3) File Number(s): 2011/187028 JUDGMENT - Amendment Applications 1This judgment provides the reasons which explain why the Court made various orders with respect to amendment of pleadings. The Nature of the Proceedings 2The plaintiff, Sue Ellen O'Reilly, claims damages pursuant to the Fatal Accidents Act 1976 (UK), and for personal injury by way of psychiatric injury, arising out of the death of her husband, David O'Reilly, in November 2006. 3She alleges, and the defendants deny, that the late Mr O'Reilly's death was caused, or materially contributed to, by negligence on the part of the defendants, Mr Poushin and Mr Sen, both specialist medical practitioners for whose negligence the first defendant, the Western Sussex NHS Trust, is vicariously liable. 4Initially, one of the defendants was the general practitioner of Mr O'Reilly, Dr Charles Wood. That claim has, by consent, been discontinued against him. 5In broad terms, it is claimed by Mrs O'Reilly that there was negligence in the diagnosis, investigation and screening of the late Mr O'Reilly in 2003, when he underwent a procedure known as a flexible sigmoidoscopy. It is claimed that, in 2003, Mr O'Reilly had a lesion in his left colon, which ought to have been, but was not, detected. That lesion became malignant, and ultimately, in 2006, it had metastasised and had grown to such a size as to cause a bowel obstruction which led to severe complications after surgery, and Mr O'Reilly's death. 6Because all of the relevant conduct by the defendants, and the death of the late Mr O'Reilly occurred in England, the substantive claims against the defendants are to be determined by the law of the United Kingdom. The parties filed a Joint Memorandum as to Foreign Law on 29 November 2012. 7However, as the proceedings are brought in this Court, and are to be heard in this Court, any matters of evidence and procedure are to be determined by application of the law of New South Wales. 8Initially, separate proceedings were commenced in 2009 for damages pursuant to the Fatal Accidents Act, by way of the loss of support provided to his family by the late Mr O'Reilly and, then further proceedings were commenced in 2011 by Mrs O'Reilly claiming damages for her own psychiatric injury. Those separate proceedings were consolidated on 12 September 2011, pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005, with the consent of all parties. The Progress of the Proceedings 9Prior to the hearing of the proceedings commencing on 20 September 2013, the plaintiff filed a Further Amended Consolidated Statement of Claim on 12 August 2013. The claim for damages was articulated in the terms set out below. 10The hearing of the proceedings commenced with a single day of evidence on 20 September 2013. 11The hearing of the matter resumed on Monday 7 October 2013, when evidence was taken on commission in London. In the course of the hearing of evidence, two applications have been made with respect to amendment of the plaintiff's pleading. 12The first application was made by the plaintiff on Friday 11 October 2013. On that day, shortly after the conclusion of argument, I granted leave to the plaintiff to amend the Further Amended Consolidated Statement of Claim in accordance with the amendments proposed. I indicated that I would give reasons for allowing that amended pleading in due course. The reasons for allowing those amendments are contained in this judgment. 13On 4 November 2013, in the course of the resumed hearing of the proceedings in Sydney, the plaintiff, by Notice of Motion filed that day, sought leave to further amend her then current Statement of Claim. 14The defendants did not object to all of the proposed amendments, but objected to the amendments which sought to plead and particularise in the proposed amended pleading, a claim on the behalf of the Estate of the late David O'Reilly, for general damages by way of pain and suffering prior to his death to which damages the late Mr O'Reilly would have been entitled by reason of the negligence which he alleges occurred in accordance with the law of the United Kingdom. That claim was set out in the proposed paragraph 42 of the pleading. 15Having heard argument on that day, I granted leave to the plaintiff to file another Statement of Claim but only in respect of the amendments to which the defendants consented, or else did not oppose. I refused leave to amend the Statement of Claim with respect to a claim on behalf of the Estate of the late David O'Reilly. I indicated that I would give my reasons for that decision in due course. This judgment contains the reasons for that decision. 16As both applications were to amend the Statement of Claim, and as both applications arose after there had been earlier amendments to the Statement of Claim, and at a time after the proceedings had commenced to be heard, the power of the Court to grant any amendment, the principles which are applicable, and the matters of discretion which may affect each decision, are similar. Because of this, it is convenient to deliver a single set of reasons covering both decisions. Amendment: Power and Legal Principles 17The power to grant leave to the plaintiff to amend her Statement of Claim is an ample one: s 64(1) Civil Procedure Act 2005 ("CP Act"). It can be exercised at any stage of the proceedings. The Court is required, when deciding whether to grant leave for the amendment of any document to "... act in accordance with the dictates of justice": s 58(1) CP Act. 18In determining what, in a particular case, the dictates of justice require, the Court is obliged to have regard to the provisions of ss 56 and 57 of the CP Act. There are other matters to which the Court may, if relevant, also have regard. 19Section 56 of the CP Act provides that the overriding purpose of the Act, and the UCPR, in their application to civil proceedings, is to facilitate "... the just, quick and cheap resolution of the real issues in the proceedings". 20Section 57 of the CP Act provides that in the management of any proceedings, the Court is to have regard to the just determination of the proceedings, as well as the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties. 21The discretionary factors provided by s 58(2) of the CP Act to which a Court may have regard in considering whether to grant any amendment include, when considering the dictates of justice, the following: (i)the degree of difficulty or complexity to which the issues in the proceedings give rise; (ii)the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in the interlocutory activities; (iii)...; (iv)the degree to which the respective parties have fulfilled their duties under s 56(3); (v)...; (vi)the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. 22The Court is entitled to have regard to all circumstances which may be of relevance to a particular case. 23On both applications, in submissions, senior counsel for the defendants drew the Court's attention to the seminal judgment of the High Court of Australia in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 24French CJ, in finding that the discretion of the primary judge to permit an amendment to the Statement of Claim, which was sought on the first day of the hearing of the proceedings, had miscarried said at [5]: "In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to AON could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's new statement of claim should not have been allowed." 25Further, in his judgment, the Chief Justice said at [35]: "It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event, the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while the interlocutory processes flowing from the new claims are put in place. AON had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice." 26The plurality judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in considering the application of r 21 of the Court Procedures Rules 2006 (ACT), which is in substantially similar terms to s 56 of the CP Act, said at [102]-[103]: "102. The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case, and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably, the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. 103. ... Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. .... Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the Court's attention, so that they may be weighed against the effects of any delay and the objectives of the rules." 27Against the context of these powers and principles, it is necessary to consider each application for amendment. First Application for Amendment 28This application sought to insert a new paragraph, paragraph 20C, and additional particulars in paragraphs 21A and 38. 29In substance, the amendments sought to add a new allegation to the proceedings against the third defendant (and vicariously against the first defendant), namely, that on 12 November 2003, he did not carry out the flexible sigmoidoscopy procedure with appropriate professional skill and competence, because he did not reach the splenic flexure, and satisfy himself that he had done so correctly. The splenic flexure is the anatomical feature at which the left colon, also known as the descending colon, adjoins the transverse colon. 30In addition, the allegations sought to add an allegation that he ought not to have reported, in the terms he did, that the bowel was normal at the splenic flexure when he had not reached that area of the left colon. 31The proposed amendments were as follows: "20C In failing to reach the splenic flexure, the Third Defendant and through him the First Defendant did not carry out the flexible sigmoidoscopy with the appropriate professional skill and competence of a consultant colorectal surgeon. PARTICULARS (i) Failure to appreciate and understand the landmarks which should have informed him of whether he had in fact reached the splenic flexure. (ii) Alternatively, failure to use those landmarks properly or at all to guide him as to whether he had conducted an examination of the left colon to the splenic flexure. (iii) Proceeding on the basis that to insert the endoscope by a distance of 60cm was necessarily sufficient in order to satisfy himself that he had reached the splenic flexure with the instrument. (iv) Proceeding on the basis that the applicable professional guidelines namely the Guidelines for the Management of Colorectal Cancer (2001) of the Association of Coloproctology of Great Britain and Ireland, required no more than that, or in the alternative mandated that, the endoscope be inserted by a distance of no more than 60cm in order to conduct an examination of the left colon to the splenic flexure. (v) Failure to appreciate that a flexible sigmoidoscopy procedure was, as at November 2003, not limited to examination of the sigmoid colon, but, rather, was intended to examine the whole of the left colon to the splenic flexure. (vi) Failure to insert the endoscopic device to a point proximal to the splenic flexure where change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon has been completed to the splenic flexure. 21A ... PARTICULARS A consultant colorectal surgeon or ordinary skills and competence would not report that the bowel was normal at and distal from the splenic flexure unless he or she had observed the change in the morphology of the bowel as the landmark to indicate that the left colon had been visualised to the splenic flexure. 38 ... (k) The Third Defendant failed to appreciate the landmarks which should have informed him as to whether he had in fact reached the splenic flexure. (l) The Third Defendant failed to insert the endoscopic device to a point proximal to the splenic flexure where the change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon had been completed to the splenic flexure. (m) The Third Defendant failed to appreciate and understand the landmarks which should have informed him of whether he had in fact reached the splenic flexure. (n) Alternatively, the Third Defendant failed to use those landmarks properly or at all to guide him as to whether he had conducted an examination of the left colon to the splenic flexure. (o) The Third Defendant proceeded on the basis that to insert the endoscope by a distance of 60cm was necessarily sufficient in order to satisfy himself that he had reached the splenic flexure with the instrument. (p) The Third Defendant proceeded on the basis that the applicable professional guidelines, namely the Guidelines for the Management of Colorectal Cancer (2001) of the Association of Coloproctology of Great Britain and Ireland, required no more than that, or in the alternative mandated that, the endoscope be inserted by a distance of no more than 60cm in order to conduct an examination of the left colon to the splenic flexure. (q) The Third Defendant failed to insert the endoscopic device to a point proximal to the splenic flexure where the change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon has been completed to the splenic flexure. (r) The Third Defendant failed to appreciate that a flexible sigmoidoscopy procedure was, as at November 2003, not limited to examination of the sigmoid colon, but, rather, was intended to examine the whole of the left colon to the splenic flexure." 32Leading up to the commencement of the hearing, the proceedings had been extensively case managed. In the course of that process, a significant exchange had occurred in court, which set the context against which these amendments which were being sought need to be considered. Senior counsel for the defendants drew attention to the context, and sought to place reliance upon it. 33On 31 July 2013, at a judicial management hearing, the plaintiff made an application to de-consolidate the proceedings, and sought leave to make some further substantive amendments to the Statement of Claim. 34In the course of that application to amend the Statement of Claim, the following matters emerged: (a)the pleadings relied upon, at that time, by the plaintiff did not contain any allegation that the third defendant, Mr Poushin, had carried out the flexible sigmoidoscopy negligently; (b)the contemporaneous report signed by Mr Poushin on 12 November 2003, which recorded his examination, and the results of it, contained the statement that "At splenic flexure the bowel was normal". Such a statement implied that the whole of the left colon of the late Mr O'Reilly had been visualised by the procedure. As well, Mr Poushin had drawn by hand an arrow onto a pre-printed diagram which suggested that he had reached the splenic flexure; (c)the evidentiary statement of Mr Poushin, which was signed on 21 December 2012, whilst saying that he had no actual recollection of the procedure performed on the late Mr O'Reilly, asserted that, based on his usual practice, and his contemporaneous report, he had a good view of the left side of the colon up to the splenic flexure during the course of the examination, and that there was no lesion present; (d)unsurprisingly, the plaintiff up to that point in time, made no claim that the procedure had been carried out negligently. 35At that time in July 2013, it was the case for the third defendant (and the first defendant) that insofar as the examination which had occurred in November 2003 was concerned, it had been performed properly and, if there had been any lesion present, which fact was not then admitted, then any failure to detect the lesion in the left colon, was a failure which fell within the bounds of ordinary, reasonable practice. 36Senior counsel for the plaintiff, in his submissions to the Court, at that time, made it plain that it was not any part of the plaintiff's case that the flexible sigmoidoscopy, was carried out negligently. This exchange took place: "HIS HONOUR: ... Mr Bartley, is there any existing expert opinion that has been served by you, or on you, which says that, as a matter of professional skill and competence, a failure to reach the splenic flexure in conducting a flexible sigmoidoscopy was negligent? BARTLEY: No, your Honour, nor is it pleaded, ... . We don't plead negligence in the performance of the flexible sigmoidoscopy." 37At that time, as they had not previously addressed this issue, it was submitted for the defendants that it would be unfair and inappropriate to allow any amendment such as that then proposed, to put in issue the appropriateness of the conduct of the flexible sigmoidoscopy, and whether that conduct was itself such as to constitute a breach of duty. 38Some amendments were then permitted, but those amendments did not include any allegation that the flexible sigmoidoscopy was carried out negligently by the third defendant. 39However, by the time the application was made on 11 October 2013, further factual and expert statements had been served on behalf of the defendants. As well, further evidence had been given by the third defendant. Accordingly, the application fell to be considered in an entirely different factual context. 40In a supplementary statement, signed on 26 September 2013, Mr Poushin said in part of paragraph 18: "I may not have viewed the splenic flexure, even though the flexible sigmoidoscope was inserted to 60 centimetres, and I saw what I perceived at the time to be the splenic flexure." 41In his evidence, Mr Poushin adopted both of his statements, and went on to give this answer, in cross-examination: "What I'm -- what I'm saying now is that the first time I didn't categorically say, I said I -- this is where I believe I have reached the splenic flexure. Now with the information that I've received, both from experts and the operation diagram, and made me think that probably I have not reached it. ..." 42It was thus clear that the third defendant accepted, as part of his case, at least the possibility, if not the likelihood, that notwithstanding the written conclusion expressed in his contemporaneous report to the effect that the splenic flexure had been reached, he had not achieved that. 43The substance of the proposed amendment, seemingly based upon this possibility, or likelihood, sought to plead that a failure to reach the splenic flexure was negligent. The plaintiff submitted that she ought be entitled to amend her pleading because there had been, effectively, a change of position by the defendants, which meant that they now embraced, as one alternative version of the facts, a case that included a failure by Mr Poushin to reach the splenic flexure. The plaintiff submitted that this change in position adequately explained why no application had been made at any earlier time in the proceedings. 44As well, the plaintiff pointed to a further matter of fact which only became clear during the early part of the hearing, and prior to the plaintiff's application. A brief description of this otherwise quite complex matter will suffice. Although the technical designation of the instrument used by Mr Poushin was recorded, the experts retained by the defendants seem to have assumed initially that the instrument actually used was 60cm in length, whereas it became apparent during the hearing of the evidence that the instrument was 150cm long. 45It is accepted that the longer instrument was well capable of reaching the splenic flexure, because it is in fact designed, and intended, to reach the caecum, a more proximal anatomical feature than the splenic flexure. However, depending upon the anatomy of an individual, the shorter instrument may not always reach the splenic flexure. If the shorter instrument was used, a failure to reach the splenic flexure was thus explicable by reference to the instrument used. Once it was established that the longer instrument was used, then one cause of a failure to reach the splenic flexure can be eliminated, and the reasonableness of the conduct of the third defendant in the conduct of the flexible sigmoidoscopy takes on a different complexion, including casting a different light on what allegations of negligence should be considered. 46The amendment was opposed by the defendants. They submitted that the application was made too late in the proceedings, and ought to have been made at a much earlier point in time. They pointed to the statements of the High Court of Australia to which reference has been earlier made. They submitted that, by reference to what had been said during the case management hearing in July 2013, the plaintiff had made it plain that she was not seeking to argue that Mr Poushin's conduct of the flexible sigmoidoscopy was in itself negligent, preparations had been made on that basis, and the plaintiff ought not now be permitted to pursue such an allegation. 47As well, it was submitted that the amendments pleaded were bound to fail, and so would be futile. In support of this submission, the defendants, drew attention to the standard of care applicable under the UK law at the relevant time, namely that a relevant healthcare practitioner is not negligent if he acts in accordance with a responsible body of his peers practising in the United Kingdom at the time the criticised treatment was given, and submitted that there was no expert evidence which was capable of supporting such a proposed claim, and that the existing evidence, including in expert reports was to the contrary. 48The defendants accepted that, in light of the stage of the hearing, namely that expert witnesses had not yet given evidence orally, there remained an opportunity for the new allegations to be addressed by expert evidence. As well, neither party submitted that any of the medically qualified witnesses who had by that stage been called would need to be recalled to give further evidence, or else to be further cross-examined. 49I accept that, as the defendants argued, the application was being made late in the proceedings, and that the plaintiff had earlier eschewed any such allegation, and that these are both relevant factors which will often lead to the refusal of such an application for amendment. However, I am satisfied that the explanation which the plaintiff offered, adequately explains both the timing of the application, and also the significant change in position of the plaintiff from July 2013. I am well satisfied that the factual version given by the third defendant significantly differed between his first and second statement, and also that the exploration of that factual difference, during his cross-examination by senior counsel for the plaintiff, demonstrated that there was a proper basis for making the application at the time it was made. 50It has always been recognised that an amendment of pleadings to have regard to the evidence which has been led in the proceedings is permissible, even if made late, and during the course of a hearing: see Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 668 per Stephen, Mason and Jacobs JJ. 51I am not prepared to conclude that the amendments would, if permitted, be futile. I accept that much of the existing expert opinion would tell against the plaintiff succeeding in making out the allegations, but that does not mean that the amendments are futile, or doomed to fail. In circumstances where I have not heard the oral evidence of the experts, and hence their evidence is incomplete, I cannot draw the conclusion which the defendants urge. 52The amendments can be made, and such additional evidence as is necessary to deal with them can be obtained without any real delay, and without any undue expense. The anticipated programme of evidence is highly relevant. The Court is not due to sit and take evidence until next Thursday. The evidence on that day will be the concurrent evidence of the four qualified experts who are based in the United Kingdom. Further evidence, including experts, will be taken in Sydney in November 2013. Thus, there is no question of any witness being recalled, nor is the subject matter of the evidence to be covered outside the expertise of the principal experts. On the contrary, it is well within their knowledge and expertise. As well, the factual compass, is relatively simple and can be addressed without any further interlocutory steps. No adjournment is required. 53In all of the circumstances, I concluded that it was in the interests of justice that the plaintiff be permitted to amend her claim in the manner which she sought. Accordingly, on 11 October 2013, I granted leave to the plaintiff to file a further amended Statement of Claim. 54The plaintiff should pay the defendants' costs of, and occasioned by, the amendment. The Second Application for Amendment 55By the 4th of November 2013, the stage of the proceedings was that the Court had concluded the taking of evidence on commission in London, and after further judicial case management, had fixed the resumption of the evidence in Sydney on that day. The remaining evidence which was to be taken consisted of the evidence of two Australian experts on liability, the further evidence of Mrs O'Reilly, the plaintiff, on matters relating to loss and damage, together with further expert evidence on those questions. 56During the course of the hearing on 4 November 2013, the plaintiff, by Notice of Motion dated that day, sought leave to again amend her Statement of Claim. The form of the proposed amended pleading was entitled "Third Amended Consolidated Statement of Claim". 57The amendments which were sought to be made were threefold. The first sought to add a further particular of breach of duty to the existing paragraph 38. That paragraph was: "(cc) The second defendant, having arrived at the clinical view that the deceased's left colon required exploration to the splenic flexure, failed to order that that investigation by way of colonoscopy". 58This particular was addressed to certain of the evidence that was given in London. The defendants do not oppose the addition of this particular, and, accordingly, leave was granted to add it. 59The second amendment was to add a further paragraph, making an additional claim for damages which, ultimately, was proposed in the following terms: "43. Further, the plaintiff maintains a claim for herself for lump sum compensation pursuant to s 1A of the Fatal Accidents Act 1976 (UK)." 60Section 1A of the Fatal Accidents Act 1976 (UK), permits a claim to be made for damages for bereavement, providing that such claim is made by the spouse of the deceased. The sum which is awarded for damages under that section is a fixed lump sum, presently in an amount of £11,800. 61The defendants do not oppose the addition of this claim and, accordingly, leave was granted to include this additional paragraph as part of the claim. 62The third amendment was to add a further paragraph, which was numbered 42, in the following terms: "As a result of the negligence of each of the defendants, the deceased experienced pain, suffering, loss of enjoyment and loss of the amenities of life in the period from approximately the beginning of 2006 until his death, which said pain and suffering included, but was not limited to, that specifically associated with: (a) the obstruction of his bowel; (b) the localised abdominal spread of cancer; and (c) the surgery and related treatment the deceased underwent to treat these conditions." 63The defendants opposed the addition of this claim, which can conveniently be referred to as the Estate claim. On 4 November 2013, I refused the plaintiff leave to amend to include such a claim. Legislation 64The parties are agreed that the law which applies to this claim is the substantive law of the United Kingdom. 65It is necessary to examine two pieces of legislation. The first, the Fatal Accidents Act, which was specifically referred to in the pleadings, permits in the event of a death caused by a wrongful act, negligent or default, a claim to be brought for damages for the benefit of the dependants of the person whose death was negligently caused. In broad terms, such an action is the same as an action brought under the Compensation to Relatives Act 1898 (NSW). 66Section 2 of the Fatal Accidents Act provides that any action for compensation to relatives is to be brought by and in the name of the executor of the estate of the deceased unless, for a period of six months after the deceased's death, the executor has not brought any action, in which case, the action can be brought by anyone entitled to compensation, provided that it is brought for the benefit of all of the persons who may be entitled to compensation. 67The second relevant piece of legislation is the Law Reform (Miscellaneous Provisions) Act 1934 (UK). Section 1 is in this form: "1. Effect of death of certain causes of action (1) Subject to the provisions of this section, on the death of any person after the commencement of this act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation... . (1A) ... (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person - (a) shall not include - (i) any exemplary damages; (ii)any damages for loss of income in respect of any period after that person's death; (b) ... (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent upon his death, except that a sum in respect of funeral expenses may be included. ... (5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act ..." 68As can be seen, differently from the law in NSW, a claim for the benefit of the estate of a deceased person can be maintained after their death in respect of any damages to which they were entitled at the time of their death, except for those damages specifically excluded by the legislation. 69Such a claim may include any of the following, providing that they are causally related to the alleged negligence: (a)general damages by way of pain, suffering and the like; (b)loss of income to date of death; (c)out of pocket expenses incurred between the time of the negligence and the date of death. 70Although a claim for funeral expenses could be included in an action for the benefit of the estate, there is no need to do so because such a claim is permitted to be made in the proceedings brought under the Fatal Accidents Act. 71Accordingly, what was sought by virtue of the proposed amendment was that for the first time, at least explicitly, in November 2013, a claim was to be mounted for the benefit of the Estate of the late David O'Reilly for general damages. Joint Memorandum as to Foreign Law 72The Joint Memorandum of the parties, noted that the plaintiff was entitled to bring the proceedings " ... pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 (UK)". It further noted that " ... pursuant to s 1(1), any cause of action vested in the deceased survives for the benefit of his Estate upon death". 73It noted that the plaintiff was also entitled to bring the proceedings pursuant to the Fatal Accidents Act 74When dealing with the question of quantum, the Joint Memorandum notes the claims which are available under the Fatal Accidents Act, and with respect to common law of England and Wales being modified by the Law Reform (Miscellaneous Provisions) Act which: "... excludes from any judgment damages for bereavement, exemplary damages and damages for loss of income in respect of any period after the deceased's death." 75The Joint Memorandum otherwise noted that the common law applied to claims for damages. 76The plaintiff pointed to the contents of this Joint Memorandum as indicating that she had always brought an Estate claim. Evidence 77The evidence relied upon by the plaintiff in support of the contested amendment was brief and unchallenged. 78It was in affidavit form, in the following terms: "3. The original Statement of Claim in the proceedings was drafted by junior counsel then briefed in the matter. 4. On 28 August 2013, I caused a brief to be sent to Mr Dominic Toomey of counsel to appear with Mr Bartley SC, both in London, and at the trial of the matter in Sydney. 5. When we were in London, Mr Toomey advised me that, although the original Statement of Claim pleaded a claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 (UK), it would be prudent to notify the defendants of the basis of the maintenance of a claim pursuant to that Act. The said Act provides for the survival, for the benefit of the estate, of a deceased person whose death has been caused by any wrongful act, neglect or default of the defendants." 79The affidavit goes on to annex an email sent by junior counsel for the plaintiff to counsel for the defendants on 16 October 2013, which in relevant part reads: "Further to our conversation yesterday, I attach a proposed Third Amended Consolidated Statement of Claim. You will see that the amendments in respect of Mr O'Reilly's pain and suffering (at para 2, and an additional para 42) are relatively minor. The existing pleading, of course, already pleads an action pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 (UK), which plainly constitutes a claim for Mr O'Reilly's pain and suffering. That is to say, the claim has already been made, and these amendments simply amplify and particularise it." 80It is to be observed that it is contended by both the affidavit and the wording of the email that there has always been a claim pursuant to the Law Reform (Miscellaneous Provisions) Act, although, it seems to be accepted that any such claim has never been particularised. In oral submissions, the plaintiff urged this approach on the Court. In short, the plaintiff submitted that as the claim had always been pleaded, the additional particulars provided by the proposed amendments, in fact limited the claim, rather than leaving the claim completely at large, and therefore, worked to the benefit of the defendants and did not occasion any prejudice to them. 81The defendants opposed the amendment. They submitted that the claim had not previously been made, and that it was too late to add such a claim to the proceedings. As well, the defendants submitted that they were prejudiced because they had not to date investigated any such claim, they had not sought out and interviewed any witness who may have been able to cast light on the claim, and they had not obtained all of the documents which may be relevant. They pointed to the fact that there had been no evidence from the plaintiff on the matter, which they submitted would ordinarily be expected, and that there was no cross-examination of her on the subject of any estate claim. 82In response, the plaintiff submitted that as a matter of practical reality, the best records of the pain and suffering which the late Mr O'Reilly underwent were the extensive hospital records which were likely to provide the most contemporaneous and best evidence which would support the estate claim. The plaintiff accepted that, whilst it may have been desirable for the defendants to have had the opportunity to undertake investigations, the lack of any such investigations was more theoretical than real, and would have been unlikely, whenever undertaken, to have contributed much of value in the defence of the claim. 83The first matter to determine is whether the estate claim was in fact ever pleaded. I am far from satisfied that the claim was in fact pleaded. 84In the first paragraph of the Second Amended Consolidated Statement of Claim, which is the version now sought to be further amended, the plaintiff is described in three capacities, namely, as an individual resident of Sydney, the widow of the late Mr O'Reilly, and the Executrix of the Estate of the late Mr O'Reilly. 85Each of these descriptions is a necessary feature of the claim made under the Fatal Accidents Act and the claim made for nervous shock and psychiatric injury. 86The next paragraph is in the following terms: "The plaintiff brings this claim for damages on her own behalf and on behalf of the children of their marriage, being: (a) Shane Jessie O'Reilly ...; (b) Laura O'Reilly ...; and (c) Jordan O'Reilly ...; each of whom lives or lived in Sydney pursuant to: (i) the Law Reform (Miscellaneous Provisions) Act 1934; and (ii) the Fatal Accidents Act 1976 (UK)". 87A pleading in identical form has been part of the Statement of Claim since the commencement of proceedings. When particulars were sought of this pleading by letter, the solicitor for the plaintiff responded that the request for particulars was not a proper matter for particulars. This did not assist in shedding any light on the question which now falls for consideration. 88It is to be observed that the reference to the Law Reform (Miscellaneous Provisions) Act in paragraph 2 is only relevant if there was an estate claim being pleaded. The plaintiff relies heavily on this to assert that an estate claim had always been a part of the proceedings. 89However, paragraph 2 makes no mention of the fact that the claim is being brought on behalf of the Estate. The claim specifically identifies the fact that it is being brought on behalf of Mrs O'Reilly, and on behalf of the children. This expression is apt to include her personal injury claim and her claim under the Fatal Accidents Act. 90If there was to be a claim on behalf of the Estate, then one would have expected that fact to have been specifically described in paragraph 2. As well, there are no other parts of the Statement of Claim which describe any of the necessary elements of a claim on behalf of the Estate. 91In order to prove, successfully, a claim on behalf of the Estate, it would be necessary for Mrs O'Reilly, in her capacity as Executrix of the Estate, having pleaded that fact, to then plead that there was a cause of action which was vested in the late Mr O'Reilly prior to his death for damages, which cause of action by reason of the provisions of the legislation, survive for the benefit of his Estate. She would also have to plead and prove that probate of the Estate of Mr O'Reilly had been granted to her, and that she was therefore entitled to be making the Estate claim. 92It would then be necessary to plead the cause of action which it is said that Mr O'Reilly had against the defendants and each of the elements of it. Finally, it would be necessary to plead that, as a consequence of the cause of action which was vested in the late Mr O'Reilly, he had an entitlement to damages which entitlement subsisted notwithstanding his death. Those damages would then need to be particularised. If final particulars of the quantum of the claim could not be provided in the pleading, then ordinarily, as with other statements of claim for personal injury, it would be necessary to identify, at the least, the heads of damage which were to be claimed and indicate that further particulars would be provided in due course. 93Nowhere do any of these matters appear in any of the various statements of claim which have been filed. 94True it is, as senior counsel for the plaintiff argued, there was no reason to mention the Law Reform (Miscellaneous Provisions) Act in the pleading, and also the Joint Memorandum, unless it was to support a claim by the plaintiff as Executrix of the Estate, on behalf of the Estate. However, the mere mention of that Act is as much consistent with being mere surplusage as it is with being no more than a mere hint or a suggestion that such a claim might be made. It certainly does not constitute a proper pleading of any such claim. For these reasons I am not satisfied that the Estate claim has ever been pleaded. 95That conclusion is enough, when combined with the lateness of the application to amend, to warrant a refusal of the application without any further consideration. 96However, it is appropriate to additionally consider and assess the application for amendment upon the basis that there was such a claim pleaded, but there have been no particulars provided until those that are to be contained in the proposed amendment. Submissions 97The plaintiff submitted that the cause of action was one which it had pleaded, and that all that it was doing was to particularise the features of the cause of action. In those circumstances the plaintiff pointed out that the claim was limited to a lump sum to represent general damages by way of the pain and suffering through which the late Mr O'Reilly went in the period from 26 July 2006, when his condition was discovered, until he died on 2 November 2006. 98The plaintiff submitted that the best evidence for the Court to judge this claim was to be found in the contemporaneous notes of the hospital treatment accorded to the late Mr O'Reilly, because, except for a period of a few weeks during the period between July and November 2006, he had been an in-patient in a hospital, or else in the palliative care unit for the last few weeks before he died. 99In addition, the plaintiff's counsel indicated that they wished to lead some further evidence from the plaintiff, Sue Ellen O'Reilly, as to her observations of her husband and his pain and suffering during that period. 100The plaintiff submitted that the claim was a valuable one, and notwithstanding that it was being brought late in the proceedings, it was a relatively confined one, the evidence was largely in contemporaneous documents and the making of the claim could be achieved without prejudice to the defendants. 101Senior counsel for the defendants argued that the application for leave to amend was being brought very late in the proceedings, there was no adequate or satisfactory explanation for the application being brought at such a late stage in the proceedings, and that by reason of the stage which the proceedings had reached, his client was denied any real opportunity of investigating the claim. Senior counsel pointed out that one way of investigating the plaintiff's claim was to analyse the hospital notes of the admission of the late Mr O'Reilly, identify one or more members of staff of the hospital with whom he had been interacting regularly, and to make enquiries of those members of the hospital staff as to what evidence, if any, they could give with respect to the claim. 102As well, senior counsel for the defendants pointed to the fact that Dr Bowyer was a principal treating doctor of the late Mr O'Reilly, and evidence could well be obtained from him about his observations of the progression of the late Mr O'Reilly's condition and the extent to which he reacted to that condition, and how he coped with it. Necessarily, it was submitted this may involve a consideration of the extent of the pain relieving medication which was administered to the late Mr O'Reilly, and the effect which it had. 103Whilst senior counsel for the defendants accepted that there were contemporaneous records available, he pointed out that one could not properly regard those records as containing the entirety of the evidence which might be available to his clients to resist the claim. 104Senior counsel for the defendants pointed out that the time when such witnesses could have given evidence, namely while the Court was assembled in London, had passed and that even if enquiries could be made promptly, and he doubted very much whether that was so, the capacity of the defendants to adduce the evidence was severely limited. 105Undoubtedly, the application is made very late in the proceedings. It is not the first occasion upon which the plaintiff has sought to amend her Statement of Claim and, clearly, on a number of previous occasions, consideration has been given to whether or not the Statement of Claim should be amended. Such amendments as were thought appropriate have been sought, and if permitted, made. 106The particulars of the pain and suffering of the late Mr O'Reilly could have been readily given and no explanation has been offered as to why such particulars have not been given at any earlier point in time. The only explanation which is offered is, in effect, that when new junior counsel was briefed, in September of 2013, a time when proceedings had been on foot for many years, the availability of the cause of action was drawn to the attention of the plaintiff's solicitor, and "it would be prudent to notify the defendants of the basis of the maintenance of a claim pursuant to the ..." legislation. 107As I have said, I do not accept that a claim was truly made, however, the fact that it did not occur to anybody until the second week of the proceedings in London, that such a claim could be, and should be, particularised is likely to be the sole reason why nothing has happened before now. 108A carefully investigated claim, including a reading of the UK legislation, would have revealed the existence of the claim. If it is the case, as the plaintiff argues, that the claim on behalf of the Estate was always made, then failure to particularise the claim is completely inexplicable, and no real explanation is advanced. If on the other hand, as I am satisfied is the fact, the claim was not made at all, then the simple explanation is that which is found in the affidavit of the solicitor for the plaintiff, namely, that until new junior counsel was employed, the claim had not been thought about. 109Neither of these explanations is satisfactory. Neither is adequate to justify the grant of leave to make such a late amendment. It is hard to see that any grant of leave to amend the pleading based upon these explanations could be consistent with the overriding purpose of the CP Act and the UCPR. 110I am also persuaded by the submissions of the defendant that there would be real prejudice to the defendant if the claim were made or particularised now. This prejudice is constituted by the fact that the events, the subject of the claim, are now seven years old. Although there are extensive contemporaneous notes to be found in the hospital records, I am not persuaded that those notes are, or ought be, the only source of evidence upon which the defendants are entitled to rely to meet the case against them. I see no reason why the defendant should be deprived, as they are by this late amendment, of the opportunity of investigating the claim in a timely fashion, and speaking to such staff members at the hospital who had an interaction with the late Mr O'Reilly, to find out what, if any, evidence they would be able to give. 111Ultimately, it is a question of the Court balancing the interests of the plaintiff and the interests of the defendants. In understanding that balance, and in determining what the dictates of justice require in this case, I am wholly unpersuaded that this very late claim made by the plaintiff ought be permitted. 112For these reasons, I dismissed the second application to amend the Further Amended Consolidated Statement of Claim contained in the motion filed 4 November 2013, in so far as it sought to add paragraph 42 to the pleading. Orders 113For the reasons which I have now expressed, I made the following orders: On 11 October 2013, on the first application: (1)Grant leave to the plaintiff to file a Second Further Amended Consolidated Statement of Claim by 10 am 17 October 2013. (2)Order the plaintiff to pay the defendants' costs of and occasioned by the amendment On 4 November 2013, on the second application (1)Grant leave to the plaintiff to file a Third Further Amended Consolidated Statement of Claim, on or before 4pm 7 November 2013, which is in the form of the Third Amended Consolidated Statement of Claim - Annexure A to the Notice of Motion dated 4 November 2013, except that paragraph 42 is to be deleted therefrom. (2)Order the plaintiff to pay the defendants' costs of and occasioned by the amendment. (3)Otherwise dismiss the Notice of Motion filed 4 November 2013. (4)Order the plaintiff to pay the defendants' costs of the Notice of Motion. ********** 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. Decision last updated: 19 December 2013