Byrne v Kanweka (ZR 82 (CA)) [1967] ZMCA 8 (14 June 1967)

BYRNE v KANWEKA (1967) ZR 82 (CA) COURT OF APPEAL 25 BLAGDEN CJ, DOYLE JA AND EVANS J 14th JUNE 1967 Flynote and Headnote [1] Civil procedure - Pleading - Amendment - Power of High Court to amend pleadings under High Court Rule 16. 30 The High Court's power to amend pleadings of its own motion is generally discretionary but becomes obligatory where amendment is necessary to ensure a fair trial or to identify the real question in controversy between the parties. [2] Civil procedure - Pleading - Amendment - Duty of High Court to amend 35 pleadings under High Court Rule 16. The High Court is not bound to amend pleadings of its own motion simply because the evidence at the hearing shows that the parties might have pleaded other issues. Rule construed: 40 High Court Rules, O. 16, r. 1. Case cited: [1] Puzey & Diss (N. R) Ltd v Mortimer (unreported Civil Appeal No. 109 of 1964). 1967 ZR p83 BLAGDEN CJ A O R Mitchley, for the appellant Lee, Senior State Advocate, for the respondent Judgment Blagden CJ: On the 22nd May, 1964, the appellant, who was a road traffic inspector then employed by the Northern Rhodesia Government, was involved in a motor accident as a result of which he sustained, 5 inter alia, a fracture-dislocation of the right ankle. After immediate treatment at Kechirira Leprosarium in Malawi the appellant was the same day moved to the Government hospital at Fort Jameson, where he was attended to by the respondent, a registered medical practitioner, also then employed by the Northern Rhodesia Government. 10 The following day an X - ray examination of the joint revealed that the reduction of the fracture was satisfactory. On the 28th May, 1964, the respondent removed the plaster from the appellant's right leg and had it replaced. After about three weeks the appellant left the hospital. About a week later the respondent fitted him with a walking plaster and not 15 long after that the appellant went to Europe for a holiday. In August, 1964, the Government surgical specialist in Lusaka, a Mr MacPherson, had X - rays taken of the appellant's right leg and these disclosed a dislocation of the injured ankle with considerable displacement. To remedy this situation, and to ensure that there should be no 20 painful movement and no arthritis, Mr MacPherson performed an arthodesis operation on the ankle joint. The effect of this operation is to fix the joint. Some movement, however, is left in the foot through the agency of other joints. The appellant brought an action for damages against the respondent, 25 claiming that as a result of the respondent's negligence in treating the appellant's ankle injury he had sustained further injury and suffered loss. Judgment was given for the respondent and it is against this judgment that the appellant now appeals. By his statement of claim the appellant claimed that the respondent 30 was negligent in four ways, but at the trial one of these four allegations was not pursued, so that, for the purpose of this appeal, there is no need to refer to it. The three ways in which the respondent was alleged to have been negligent were expressed as follows: "The defendant was negligent in that he: 35 (a) Removed the first plaster cast which had been applied to the plaintiff's right leg in a rough, inexperienced and dangerous manner when he well knew or ought to have known that further injury might be thereby occasioned to the plaintiff's badly injured leg and ankle. 40 (b) Ignored the immediate complaint made to him by the plaintiff of intense pain during the removal of the plaster referred to in the last foregoing sub-paragraph hereof and failed to make any or any adequate examination for possible further injury and/or dislocation. 45 BLAGDEN CJ (c) Refused the plaintiff's direct request for an X - ray examination of the plaintiff's said right ankle before applying a new plaster which he well knew or ought to have known would aggravate beyond repair any dislocation of the ankle joint." 5 1967 ZR p84 By his defence the respondent denied negligence and asserted that if the appellant had suffered any extra injury it was as a result of his own negligence in various ways. The learned trial judge found that none of the averments of negligence advanced by the appellant had been made out and he also found 10 that the respondent's counter - charges of contributory negligence against the appellant had not been made out either. In his judgment the learned trial judge also canvassed the possibility that the respondent had been negligent in his treatment of the appellant's injury, but in a manner which had not been specifically pleaded. He said: "I 15 shall now consider the possibility that the plaintiff's existing disability is due to negligence that was not pleaded, namely, that the defendant was negligent in not carrying out X - ray examinations at intervals until the fracture was completely healed." The learned trial judge made no actual finding on this issue. What 20 he did was to consider and determine whether or not he should amend the appellant's Statement of Claim so as to include this particular head of negligence. He invited argument on this question. Mr. Cunningham, who appeared for the appellant in the court below, did not ask for any amendment to be made. He claimed that this particular 25 issue of negligence - namely, whether the respondent was negligent in not carrying out subsequent X - ray examinations - was already included in sub-paragraph (b) of the appellant's particulars of negligence. He submitted further that if the real issues were not properly expressed in the pleadings the court had the right to amend them, and that 30 as a result of the provisions of the High Court Rules, Order 16, rule 1, and their interpretation in Puzey & Diss (N. R) Ltd v Mortimer[1], the court must amend the pleadings in order to settle the real issues between the parties. Mr Hamilton, appearing for the respondent below, opposed any 35 amendment by the court and submitted that the question of whether subsequent X - ray examinations was required or not was never a real question of controversy between the parties. The learned trial judge ruled against Mr Cunningham's submission that this question was already covered by the particulars of negligence 40 pleaded. In regard to amendment the learned trial judge said: "The real question in controversy between the parties at the trial was whether the defendant had dislocated the plaintiff's ankle by BLAGDEN CJ 1967 ZR p85 removing the plaster in the manner he did and whether he ought to have discovered the dislocation by an X - ray at the time. It was not a real question in controversy whether the defendant had been negligent in not taking successive X - rays: This was not pleaded in the Statement of Claim, it came out in the evidence 5 only because Mr. MacPherson and Mr. McNab said it was their practice to re - X - ray this type of fracture. Defence counsel did not deal with it in his concluding address, and in his address the plaintiff's counsel did not refer to the practice except by implication ....". 10 He went on to indicate that the trial might have taken a different course if this allegation of negligence had been specially pleaded - in particular as regards the conduct of the defence - and held that he should not make an amendment to the Statement of Claim. By this appeal the appellant attacks the learned trial judge's 15 handling of, and findings on the issues of negligence, and his assessment of damages. In regard to the question of negligence the appeal has been argued broadly under two main heads: first, that on the evidence adduced the learned trial judge ought to have found negligence proved against the 20 respondent; secondly, that having regard to the evidence adduced and the course the trial took, the learned trial judge ought to have exercised his powers of amendment under the High Court Rules, Order 16, rule 1, and amended the particulars of negligence in the appellant's Statement of Claim so as to include averments of negligence which had been disclosed 25 by the evidence adduced during the trial, although these were not specifically pleaded. To supplement this second main head of argument, Mr. Mitchley, for the appellant, has also made application to us for the particulars of negligence pleaded in the appellant's Statement of Claim to be amended so as 30 to include two new averments of negligence against the respondent. I have already referred in detail to the three items of negligence pleaded and pursued by the appellant at the trial and to the fact that the learned trial judge found none of them proved. He gave reasons for his conclusions and on the evidence as recorded I think his findings are unimpeachable. 35 But, it is argued, the evidence disclosed two other grounds of negligence by the respondent, namely, negligence in not making subsequent and successive X - ray examinations, and negligence in fitting a walking plaster too soon. The first of these two grounds, it is also argued, is covered by the existing pleadings - in particular by sub-paragraph (b) 40 of the particulars of negligence. That submission, as I have already related, failed in the court below. To repeat sub-paragraph (b) of the appellant's particulars of negligence, this alleged that the respondent - "(b) Ignored the immediate complaint made to him by the 45 plaintiff of intense pain during the removal of the plaster referred BLAGDEN CJ 1967 ZR p86 to in the last foregoing sub-paragraph hereof and failed to make any or any adequate examination for possible further injury and/or dislocation." The learned trial judge examined the evidence on this issue, found that the 5 appellant may have made some remark indicating pain when the plaster was removed but concluded it was of no particular significance. He said: "With regard to the second averment, I have already found that the plaintiff did not make a complaint of intense pain during the removal of the plaster though he may have complained generally. 10 Mr. MacPherson said that he would not pay much attention to complaints of pain, but would X - ray in any event after renewing a plaster. Mr. McNab said he would not X - ray if there were no complaints of pain. There was no X - ray taken at the time of the 15 application of the plaster, and Mr. McNab's evidence showed that there is not a normal practice to so X - ray. The defendant's failure to X - ray at that time is therefore a course which a professional man of ordinary skill would have followed. I therefore find that the plaintiff has not proved his second 20 averment." Later in his judgment he dealt with Mr Cunningham's submission that the particulars of negligence pleaded in sub-paragraph (b) included negligence by the respondent in not carrying out successive X - ray examinations. The learned trial judge said: 25 "Mr. Cunningham . . . claimed that the allegation in paragraph 3 (b) of the Statement of Claim that the defendant 'failed to make any or any adequate examination for possible further injury and/or dislocation' included the carrying out of X - ray examinations at intervals. I do not accept this, and I have already dealt with it in 30 this Judgment. The context restricts the time of the examination referred to in paragraph 3 (b) to when the plaster was removed." I would agree with this conclusion and I would note also, in passing, that the learned trial judge, in dealing with the particulars of negligence pleaded in sub-paragraph (c), found that the appellant did not give a 35 direct request for an X - ray - a finding which in my view was supported by the evidence. It follows that, in my view, the argument that on the evidence the learned trial judge should have found the respondent guilty of negligence as pleaded, fails. [1] [2] There remain the questions as to whether the pleadings should 40 have been amended by the learned trial judge at the trial or should now be amended by us upon the appellant's application therefor so as to include items of negligence not specifically pleaded. Amendment of pleadings is regulated by the High Court Rules, Order 16, rule l, which provides that: "The Court or a Judge may, at any stage of the proceedings, order 45 any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments 1967 ZR p87 BLAGDEN CJ as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon 5 such terms as to costs or otherwise as shall seem just." The interpretation of this rule was considered by the Court in the case of Puzey & Diss Motors (N. R) Ltd v Mortimer [1]. I do not think there is any need for me to go into the facts of that case. It was a case in which the learned trial judge did amend the pleadings under the powers 10 conferred on him by Order 16, rule 1. As Conroy, CJ, put it: ". . . the learned trial judge was striving to do justice between the parties and to determine the real questions in controversy between them. He was not helped in this task by the pleadings. It was in his 15 discretion as to whether he should amend the pleadings, as he did, and I cannot say that he exercised that discretion incorrectly. Paragraph 9 of the Statement of Claim makes a double claim - special damages for innocent misrepresentation and general damages for breach of contract. As the former were irrecoverable as 20 pleaded and as the plaintiff had fought his whole case on breach of contract, the learned trial judge was really bringing the pleadings into line with the actual issues contested and decided, and was, as he said, amending for the purpose of 'clearing the record'. He was basing both claims on breach of contract. It is the duty of a court 25 to ensure that its records are complete. If a case is decided on a re-casting of the issues as originally pleaded, the pleadings should be amended in fact...." In the course of my judgment in that case I referred to the fact that the amendments made by the learned trial judge introduced no new matter and no new cause of action. I continued: 30 "All they did was to adjust the pleadings so that they conformed with the case which had been presented and contested before him. In my view he was not only justified in doing so, but in view of the mandatory terms of the last part of Order XVI rule 1 of the High Court Rules, obliged to take this course." 35 Earlier I had referred to the Court's power to amend and stated that: "The Court can and indeed must amend of its own motion, when the requisite conditions obtain." I adhere to these observations. Primarily, the court's power to amend of 40 its own motion is discretionary. But it becomes obligatory, and understandably so, where amendment is necessary to ensure a fair trial or to identify the real question or questions in controversy between the parties. Normally the questions in controversy between the parties are those specifically raised in the pleadings and no others. But I apprehend that 45 1967 ZR p88 BLAGDEN CJ there might be a defect or deficiency in the pleadings which, if not corrected, might impede the resolution of the real question or questions in controversy between the parties; or, again, as the case proceeds, it might become apparent that the real issues which it involved had not been 5 raised in the pleadings. This last was what happened in the Puzey & Diss case. The pleadings were badly drawn and the case as conducted disclosed that the real issue between the parties was one which had not been pleaded. In either of the examples which I have cited I think amendment of 10 the pleadings would be essential. But the instant case does not fit into either category. I entirely agree with Mr Loe's submission that the appellant's complaint as disclosed in his Statement of Claim was in regard to negligence by the respondent on the day the original plaster was removed and replaced and no later. It is true that by his defence the 15 respondent alleged contributory negligence by the appellant on occasions subsequent to that day, but this made no difference to the scope of the appellant's complaint. It is true, also, that evidence was received from the two surgeons who were called relating to the advisability of taking subsequent X - rays, and that there was also evidence, most of it from the 20 respondent himself, regarding the fitting of the walking plaster and the reasons therefor. The emergence of this evidence, however, did not automatically create new questions in controversy between the parties and it would be an absurd construction of the provisions of the High Court Rules, Order 16, rule 1, which would do violence to the whole concept of 25 pleadings to say that the court was bound of its own motion to amend the pleadings simply because it had transpired from evidence adduced in the course of the hearing that the parties might have pleaded other issues. Fundamentally, of course, parties are bound by their pleadings and evidence outside the pleadings would ordinarily be excluded as inadmissible. It 30 is, naturally, always open to a party to apply for leave to amend his pleadings and he will be granted leave to do so in a proper case. I do not think it is necessary for me to repeat here the principles under which the Court will entertain such an application. They are well summarised in paragraphs 20/5 - 8/6 of the Notes to the Rules of the Supreme Court, 35 Order 20, rules 5 - 8, under the rubric "General Principles for Grant of Leave to Amend" on page 300 of the 1967 Supreme Court Practice. But in the instant case the appellant's counsel below made no application to amend, although given every opportunity to do so. I would not say he was necessarily wrong in taking that attitude. For 40 the reasons I have given I am satisfied the learned trial judge was under no obligation to make any amendment to the appellant's Statement of Claim. There remains Mr Mitchley's application to amend the appellant's particulars of negligence by the addition of the two further particulars of 45 negligence. I do not think that should be granted for several reasons: first, because if there was any real substance in these allegations - and the appellant's counsel below was in a position to know this - they could and 1967 ZR p89 BLAGDEN CJ should have been pleaded originally; secondly, because even if their significance - for what it was worth - was not apparent before trial it certainly became apparent during the trial and the application should have been made then; thirdly, because as these new issues were neither pleaded nor properly canvassed in the court below, the respondent would 5 also have to be allowed to amend his pleadings and further evidence would have to be called, all of which could not really be satisfactorily achieved without ordering a new trial; fourthly, because I think that to grant such an application, with all its attendant complications and delays, at this late stage in the history of the matter, would do an injustice to the respondent for which he could not be adequately compensated in costs. Having come to these conclusions there is no need for me to consider the question of damages. I would dismiss this appeal. Judgment Evans J: concurred in the judgment of Blagden, CJ Judgment Doyle JA: I agree with the judgment of the President and am 15 satisfied that the issues raised in the pleadings were correctly stated and decided by the learned trial judge. I would emphasise that the issues to be raised in any action are a matter for the parties. They are free to decline to raise issues which could be raised. Order 16 is not a directive to the judges spontaneously to raise further issues where the issues have been 20 clearly pleaded and joined by the parties, nor is it an open invitation to the parties to withhold issues and only attempt to raise them after, so to speak, a trial run on the evidence. I consider that the learned trial judge was correct in the exercise of his discretion not to amend the pleadings on his own initiative and I also consider that, in the circumstances of the case, he could also correctly have refused to amend if an application had 25 in fact been made by the plaintiff at the close of the evidence. I agree that this appeal should be dismissed. Appeal dismissed 1967 ZR p89