Amendment of personal injuries summons clarifies issues arising and does not introduce new controversy

MacMenamin J (nem diss): Appeal against High Court decision refusing to permit amendments to personal injury summons – prisoner sustained injuries in an accident whilst in Wheatfield Prison - the extent to which the provisions of the Civil Liability & Courts Act, 2004 and the Rules of the Superior Courts had the effect of abridging the rights of parties in personal injury actions to amend their pleadings prior to hearing - personal injury claims procedure – governor argues that the new procedures delimits the right to amend pleadings once initiated – argued that the basic governing principles for permitting the pleading of claims in respect of personal injuries in summary form has been explicitly dis-applied under the new procedure - contended that the effect of these changes is now to debar a plaintiff from furnishing additional particulars as to the circumstances of the claim - the extent to which that new regime involves an incursion into previously well identified procedural rights - legislation now provides for one single mechanism, whereby, in order to fulfil the legislative intendment, there is to be a detailed letter of claim; more expansive, but simplified, pleadings; affidavits covering the content of the pleadings; and explanations of any inability to provide the detail stipulated in pleadings; all of which are to be “superimposed” on the pre-existing rules which formerly governed personal injury actions and other proceedings - format of a plaintiff’s claim is now mandatory - intent of the legislature - relevant provisions - circumstances of the claim - working on a guillotine steel cutter - left hand became caught by the blade - sustained very serious amputation injuries to fingers of his left hand - action did not proceed with great expedition - new solicitor came on record – they found it necessary to provide additional particulars of the defendants’ negligence – argued that this did not entail pleading any new cause of action; but provided detail of additional circumstances relating to the claim - brought a motion to amend to the High Court – amendments fell into three categories - alleged failure on the part of the defendants to have a prison officer present in a room adjacent to the workshop, where there was present a ‘cut off’ switch – first category was permitted - assuming warning signs were present in the workshop, the defendants had failed to ensure that the prisoner was capable of reading them – second category permitted – in relation to the third category, the judge posed four rhetorical questions as to the nature and range of the real issues in controversy between the parties - whether the machine defective - whether the plaintiff trained - whether there was adequate supervision of the machine - whether there were sufficient warnings regarding the dangers of this machine - third category of intended amendments were to include, a plea at two points in the summons, to the effect that the respondents had allowed the appellants “to operate at the machine when they knew, or ought to have known, that he was under the influence of a controlled drug, to wit methadone”. - judge concluded that these intended amendments lay outside the four questions – found that they did not come within the description of the “real issues in controversy between the parties” - the judge’s conclusion was that the ‘liberal’ approach to be found in the jurisprudence regarding amendments had been superseded by the 2004 Act and the new Rules - whether the motion judge should have disallowed amendments which addressed the alleged methadone usage – governor argued that the proposed amendment contained “new facts”, and, further, that they constituted a new and different case, made outside the limitation period, and after service of the notice of trial – argued that the content of the contested particulars was never previously canvassed; and did not refer to the allegedly defective machine – he submitted that the case law on amendments does not address the provisions of the Civil Liability & Courts Act, 2004, or the Rules of Court - no doubt that what was in contemplation was a new aspect of the case as previously pleaded in the personal injuries summons - a further question arises relating to the appellant’s ability or capacity to carry out work of the type in question - judge implicitly gave part-recognition to alleged incapacity, in allowing the additional particulars regarding the prisoner’s alleged inability to read warning signs - clear implication of the “warning sign” amendment was to the effect that, even if such signs had been present in the workshop, the prisoner was incapable of reading them - plainly implied an incapacity or unfitness to operate the machine – court found that the governor seeks to make a differentiation without a distinction – both categories raised the question of an incapacity or unfitness to do the work either through the illiteracy or methadone consumption – question of prejudice - no indication that the respondents would suffer any “actual” prejudice as a result of permitting the amendment – relevant legislation - unable to find any provision in the 2004 Act which impacts on Order 28, Rule 1, which addresses amendments - Rules of the Superior Courts governing personal injuries - there is no reference whatsoever in the 2005 Rules either to the power to amend, or to Order 28, Rule 1 Rules of the Superior Courts, 1986, or to the question of amendments generally - the provisions of the Rules which apply to a plenary summons shall, with appropriate modifications, apply to a personal injuries summons - duty of the court, otherwise, is to apply the other extant orders and rules where necessary with “appropriate” modifications – new rules do not diminish the court’s discretion to amend pleadings - no indication of any delay between receiving these instructions and bringing the application - abrogation of identified Rules is confined, therefore, to Order 19 concerning pleading – this order is self-evidently inconsistent with the new Rules, and to be disregarded in the case of personal injury claims - fundamental lacuna in the governor’s case - intent of the new procedure is to ensure clarity and precision in pleadings in personal injury actions, and to prevent surprise at the hearing, but not at the cost of fairness - matter for the courts to ensure, under the Constitution, that the Act, and the statutory instrument, properly interpreted under the Constitution, ensure that such fairness is preserved for the protection of all parties to a personal injury proceeding - clear that courts do have a discretion to amend - discretion must be exercised judicially - first matter to be considered in an application to amend is whether the amendment sought is necessary for determining the real question in controversy in the litigation - next issue to be considered is whether the amendment can be made without prejudice to the other party - third criterion is whether any possible prejudice can be addressed or regulated by a suitable order as to costs - a very late application to amend is less likely to succeed, particularly if the amendment is on a purely technical point - it is not for this Court to make any comment on the merits or demerits of the amendment - true issues in controversy between the parties was, whether, having regard to the circumstances, there was an unsafe system of work for the appellant - this test not only concerned the state of the machinery, and the circumstances of its operation, but also the capacity of the prisoner to operate that machinery on the date and time - not the introduction of an entirely new controversy, but rather the clarification of issues already arising.

Murray J (concurring): Appeal from an order of the High Court refusing the prisoner leave to make two amendments to his personal injuries summons - added further allegations of negligence in his claim for damages against the governor – judge granted leave to the prisoner in respect of two other proposed amendments – prisoner suffered serious injuries involving the amputation of three fingers of his left hand, when he was using a guillotine steel cutter to cut metal, as part of a training programme in Wheatfield Prison - two amendments - pleadings in personal injuries actions - whether the Civil Liability and Courts Act, 2004, and Order 1A of the Rules of the Superior Courts, should be interpreted so that the discretion of the Court to amend pleadings under Order 28.1 is different and more limited in personal injuries actions than it is for pleadings generally – whether, in all the circumstances of the case, the application for the two amendments in question should have been allowed by the High Court - Interpretation of Order 28.1 - Relevant Provisions - Order 1A - the Civil Liability & Courts Act, 2004 has, as one of its purposes, the laying down of statutory procedures to be followed by a plaintiff when initiating and bringing before the courts a claim to recover damages for personal injuries - also regulates the conduct of proceedings in certain respects, once initiated - Act regulates in a far more extensive way than had previously been the case the procedures to be followed in personal injuries litigation - constitutional considerations to which the courts must have regard when interpreting and applying statutory measures or rules - right of access to the courts - right to litigate - right to defend and vindicate the personal rights - Judicial independence - interpretation of legislation and the relevant rules of Court - whole purpose of the discretion vested in the courts by Order 28, Rule 1, is to allow proceedings to be heard and determined by reference to the real questions in controversy between the parties.