Abi-Hanna v Williams

[2023] NSWSC 703

Supreme Court

New South Wales

Medium Neutral Citation:

Abi-Hanna v Williams [2023] NSWSC 703

Hearing dates:

02 June 2023

Date of orders:

05 June 2023

Decision date:

05 June 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [56]

Catchwords:

CIVIL PROCEDURE — Registrars — review of Registrar’s decision — where Registrar declined to extend time to defendant to serve further expert reports and amend Defence — where no trial date set — whether plaintiff would be prejudiced — whether to set aside Registrar’s decision — Registrar’s decision set aside

Legislation Cited:

Civil Liability Act 2002

Civil Procedure Act 2005

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Angela Abi-Hanna (P/Respondent)
George Williams (D/Applicant)

Representation:

Counsel:
Mr Daley (P/Respondent)
M Hamdan (D/Applicant)

Solicitors:
Brydens (P/Respondent)
Avant Law Pty Ltd (D/Applicant)

File Number(s):

2020/343346

Publication restriction:

Not Applicable

JUDGMENT

1. On 27 March 2023, the defendant in these proceedings filed a Notice of Motion seeking orders pursuant to rules 49.19 and 49.20 of the Uniform Civil Procedure Rules 2005 (“the UCPR”) for a review of the decision of Registrar Jones delivered on 27 February 2023. The Motion sought that the decision of the Registrar be set aside, varied or discharged and it sought orders in lieu of the Registrar's orders. The proceedings were heard on 2 June 2023, and this judgment is being delivered promptly with somewhat truncated reasons so as to enable the proceedings to continue efficiently.

Background

2. It is necessary to say a little about the proceedings in respect of which this Notice of Motion has been brought. The plaintiff, who is the respondent to the Motion, commenced proceedings by Statement of Claim filed on 3 December 2020. She sues the defendant, a specialist consultant paediatrician and neonatologist, for negligence arising out of treatment provided by him to her in the period between 6 December 1999 and 11 February 2000. The plaintiff was at that time a newborn, having been born on 3 December 1999 at 36 weeks gestation. In summary, the plaintiff post-delivery experienced jaundice and other symptoms which she claims were suggestive of her suffering a serious medical condition requiring investigation.

3. On 6 December 1999, the day before the plaintiff was discharged from hospital, she was seen by the defendant who examined and assessed her. He noted that the plaintiff was continuing to suffer jaundice and had other symptoms. At that point in time, the defendant did not order any blood tests or other investigations to ascertain the cause for the jaundice.

4. The defendant next consulted with the plaintiff on 10 January 2000, when the plaintiff was about five weeks of age. There is a dispute about the symptoms which were observed on that occasion, but it is not in dispute that on that day the defendant did not recommend, suggest or organise any blood tests or other investigations to determine the cause of the persisting jaundice.

5. The defendant next consulted and examined the plaintiff on 3 February 2000 (that is to say, a little under a month later) and saw her again on 11 February 2000. On that day, due to the persistence of the symptoms, the defendant organised various blood tests. Those blood tests revealed findings consistent with hepatic dysfunction. The plaintiff was readmitted to the Children's Hospital and thereafter had a difficult path, which ultimately led to the need for a liver transplant. The plaintiff claims a series of complications thereafter flowing from that liver transplant.

6. After investigations, the plaintiff was diagnosed with a complex congenital anomaly known as biliary atresia. According to the expert evidence, this is a rare congenital anomaly which is irreversible. It occurs only in babies, and the recorded incidence is approximately 1 in 20,000 live births. According to the report of Associate Professor Kimber of 15 September 2021, obtained by the plaintiff, there will be six to eight cases per year in New South Wales, and most general practitioners will never see a case in their practising lifetime. He also says that a working paediatrician seeing 500 new babies per year might practice for over 25 to 30 years before seeing one case.

7. Having listened to the submissions of counsel, and having read the material, it appears to me that the principal contention with respect to the claim of negligence is that the defendant should have ordered tests, by way of blood tests and other investigations, in January 2000 when he saw the plaintiff, but that he failed to do so until a month later, on 11 February 2000.

8. Accordingly, it is the plaintiff's case that the essential surgery, which is known as a Kasai operation, was delayed in the plaintiff's case. It is that delay of a month which the plaintiff says was caused by the defendant and which she alleges led to the liver transplant and later complications.

9. The defendant, in a Defence filed on 14 December 2021, denies that he was negligent, although he admits that he owed a duty to exercise reasonable care and skill in providing in his services as a consultant paediatrician and perinatologist. In his Defence he also denies that any of his conduct caused the plaintiff's harm.

Timeline of expert reports

10. As is common, the plaintiff's claim came to be case managed by the Common Law Registrar. The plaintiff, complying with various directions of the Court, served a series of expert reports. The first was a report of Dr Catherine McAdam obtained on 6 July 2021. Dr McAdam's report has been, for convenience, described as a "breach report". She was asked a series of questions. The first was this:

“Did Dr George Williams act in accordance with widely accepted peer professional opinion as to competent professional practice at the time in the treatment and advice provided to the plaintiff from the time of her birth to the time of diagnosis of her biliary atresia on or about 14 February 2000?”

11. The criticism which Dr McAdam raises seems to me to be confined to the defendant's failure to respond appropriately to the prolonged jaundice and the delay in his ordering of blood tests, thereby not diagnosing the plaintiff with biliary atresia for a little over a month. Dr McAdam had been in practice as a specialist paediatrician for about a year before the conduct involved in this matter occurred. In her report she suggested, by reference to local guidelines and textbooks from the time of the plaintiff's birth, that the practice was to order investigations by blood tests by three weeks of age in infants born before their full term. She cites in support of that guidelines from the Agency for Clinical Innovation in November 2016. That agency did not exist prior to 2010.

12. As well, the plaintiff obtained and served two reports, one from Dr Siddarth Sethi dated 30 September 2020, and one from Associate Professor Kimber dated 15 September 2021. Both of these reports dealt with the issue of causation, namely, having regard to the length of the delay, what difference, if any, would the delay have made to the plaintiff's ultimate outcome.

13. The solicitor for the defendant, in an affidavit sworn on 10 November 2022, explains the approach which was taken by the defendant to the service of these reports. The solicitor was not cross-examined on that affidavit and no submission has been made that the Court should not accept as true the contents of the affidavit. I do so.

14. The solicitor records that he obtained a report to respond to that of Dr McAdam by sending a letter of instruction to a paediatric specialist, Dr David Pincus. On 4 August 2021, Dr Pincus provided a report. The solicitor noted, however, that in this report, although such an opinion was not sought, Dr Pincus provided an opinion on causation. The solicitor formed the view that Dr Pincus’ comments on causation, which had been made at a time before further reports on causation were obtained, were unhelpful to the defendant's case. He made a decision not to serve the report of Dr Pincus.

15. In response to those two reports of Dr Sethi and Associate Professor Kimber on causation, the solicitor for the defendant obtained two reports on causation. A short review of those reports is required.

16. The first report obtained by the plaintiff from Dr Sethi did not specifically refer, by title or in detail, to any epidemiological studies with respect to the particular issue of the outcome from the Kasai procedure in terms of when it was undertaken. Dr Sethi did make a general statement by reference to "[m]any experienced centres" and what the results of those centres were.

17. Associate Professor Kimber's first report of 15 September 2021 dealt with a range of outcome data for a Kasai operation for biliary atresia. He cited five tests in various Asian countries, and he cited a further 2009 pooled national French study. He concluded that the failure of the Kasai operation to achieve good drainage led to increased medical care and subsequent liver transplantation. He thought that whilst such an outcome could occur in children operated on within 30 to 40 days of life, in this case the delay in diagnosis was a significant contributor.

18. The solicitor for the defendant obtained two reports on causation. The first was prepared by Mr Thomas Clarnette. His report referred to a range of studies around the world in nine different countries. In particular, he paid careful attention to a study and a series of articles on the subject originating from King's College Hospital in London where a specialist centre exists, run by an identified paediatric surgeon whom, Mr Clarnette noted, was widely regarded as a world expert. Based on all of the studies and his experience, Mr Clarnette said that the literature did not show a clear correlation between the time of the Kasai operation and the outcome before 100 days of age. In other words, his opinion was that the delay in diagnosis made no difference at all.

19. The solicitor for the defendant also obtained a report from Associate Professor Lewindon. He referred to a series of articles, including the articles written by the expert at King's College Hospital in London. He cited one of those articles as saying:

“It is not possible to conclude that earlier Kasai [in isolated biliary atresia] prevents [or] delays liver transplant.”

20. These reports were indicative of the joinder of a very real issue on the question of whether any delay in diagnosis caused the plaintiff's complications. They also touched upon, but did not directly confront, the issue of breach of duty. That is because it was at least arguable, based on these reports, that if no different outcome was likely before 100 days of age, a failure to order earlier tests could not have been negligent.

21. As the matter was being case managed, as I have earlier indicated, orders had been made that the defendant's "primary liability evidence" was to be served by 22 April 2022. That order was part of a suite of orders made on 21 January 2022 by the Registrar which required the parties to mediate on 10 August 2022, and which returned the matter to the Court on 26 August 2022 for directions.

22. Arrangements were made for the mediation to occur in accordance with the Court order. Five days before the mediation, the plaintiff served a further report from Associate Professor Kimber dated 3 August 2022. There was no order or direction of the Court which permitted that to happen. Nevertheless, no doubt the plaintiff thought that service of the report was appropriate, and would assist to advance her position at the mediation.

23. As I read it, the report of Associate Professor Kimber of 3 August 2022 was significant for a number of reasons. First, is that it engages directly with the opinions of each of Mr Clarnette and also Professor Lewindon. It does so, however, by dealing with the studies upon which they relied and also, uncommonly, by engaging in direct criticism of the two experts retained by the defendant. This criticism is based upon assertions by Associate Professor Kimber of their direct personal experience at King's College in London. For example, the report notes that Mr Clarnette trained extensively within King's College London and had a close relationship with the Professor there who is said to be the world expert. It also suggests that, contrary to what Mr Clarnette has said, another expert by the name of Professor Davenport has written that age at operation is an important factor.

24. Secondly, the other fact which this report reveals is that, although not apparent from the earlier report of Professor Kimber or the report of Mr Clarnette, Associate Professor Kimber had discussed his opinion with Mr Clarnette before providing it. He said:

“I am completely confident in the approach that I have taken and the level of scientific evidence that backs this viewpoint. I actually discussed this case with many other surgeons and Mr Clarnette before providing you with what I felt was a balanced reflective surgical opinion.”

25. He goes on to say:

“I appreciate the expertise and thoughtful nature of the two opinions provided but one cannot rely on a single standalone institute that highly specialised biliary atresia outcome [which is] in conflict with all other data series in the world.”

26. The mediation was conducted but did not reach a successful outcome. The matter was due back before the Court approximately two weeks later, on 26 August 2022.

27. The solicitor for the plaintiff wrote a letter, dated 19 August 2022, to the solicitor for the defendant after the mediation, noting that the reports of Dr Lewindon and Mr Clarnette did not deal specifically with breach of duty, and that the plaintiff's expert opinions of Dr Sethi and Dr McAdam stood uncontested. It then asked:

“In the circumstances, we are instructed to seek that the defendant formally admit to a breach of duty of care of the plaintiff.”

28. That letter was responded to by email a few days later by the solicitor for the defendant, making it plain that the defendant did not intend to admit breach of duty.

29. After the mediation was concluded, the solicitor for the defendant, at a time prior to the directions hearing, reviewed his file to consider what further steps needed to be taken in the preparation of the matter. According to his affidavit, he considered that the more recent report of Associate Professor Kimber now addressed the question of causation in far more definitive terms than his first report, and he became concerned that the supplementary report, which had been served about three weeks earlier, could water down the strength of the defendant's defence which was based principally on causation. At that point in time, he decided that the defendant's strategy up to that time needed to be reassessed and that he should obtain a report dealing with breach.

30. Accordingly, he retained an expert paediatrician, Dr Dunlop, who provided a report on issues of breach of duty by 30 September 2022, which was served on 7 October 2022. About a month later he served the report of Dr Pincus, which, as I noted above [14], had been obtained at an earlier point in time.

Decision Under Review

31. When the matter went before the Registrar on 26 August 2022, the defendant indicated that it wished to serve further expert reports on liability and amend his Defence.

32. A timetable was fixed by the Registrar requiring the plaintiff to file a Notice of Motion, together with affidavits in support, and to formally seek leave to serve the further expert reports and amend its Defence. That process was necessary because the plaintiff indicated that it did not consent to the provision of further expert reports or to the proposed amended Defence. The proposed amended Defence seeks to add a defence by way of reliance on s 5O of the Civil Liability Act 2002.

33. The Motion was heard by Registrar Jones in February 2023, and a decision was delivered by her on 27 February 2023. The Registrar declined to grant leave to the defendant to rely upon the further expert reports of Dr Dunlop and Dr Pincus and declined to grant leave to the defendant to amend his Defence. It is in respect of that decision that the plaintiff seeks a review by this Court.

34. What was principally in issue before the Registrar was whether, pursuant to r 1.12 of the UCPR, time should be extended to allow the service of the reports of Dr Dunlop and Dr Pincus and that the Defence ought be permitted to be amended, although out of time.

35. The same issue is today before me. The ability of this Court to review the Registrar's decision is contained within r 49.19 of the UCPR. That rule provides that where a Registrar gives a direction or makes an order or a decision, the Court may, on application by any party, review the direction, certificate, order, decision or other act and make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.

Legal principles

36. The authorities demonstrate that this Court is not engaged in hearing in an appeal from the decision of the Registrar. It is engaged in undertaking a review. The authorities demonstrate that it is not essential that error be identified in the decision of the Registrar before the Court can review that decision. Nevertheless, particularly in matters of practice and procedure, the Court ought exercise a degree of restraint in considering whether or not the Registrar’s decision should be varied or discharged or overturned.

37. The authorities suggest that in conducting this review this Court is exercising its own discretion. In dealing with questions of practice and procedure, whilst I have said the identification of error is not necessary, ultimately, the interests of justice need to be identified to warrant intervention. The authorities also note that in a case which involves a decision which, although a matter of practice and procedure, has a decisive impact on the rights of party, the Court may be more willing to intervene.

38. The exercise of the review pursuant to the Rules also calls up the statutory provisions of ss 56 to 59 of the Civil Procedure Act 2005:

1. s 56 obliges the Court, in making any order, or exercising any power, to give effect to the overriding purpose, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings;

2. s 57 provides that the objects of case management are the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of proceedings;

3. s 58 requires that the Court is to follow the dictates of justice, particularly when making any order for amendment of a document or any other order of procedural nature, and s 58(2) sets out what the dictates of justice are in a particular case; and

4. s 59 calls attention to the elimination of delay; and

5. s 60 calls attention to the proportionality of costs.

Submissions

39. The defendant submits that the decision of the Registrar has the consequence that he is held out in a substantive and practical way from contesting the issue of breach of duty at any hearing. He also submits that the Defence under s 5O of the Civil Liability Act is one which is commonly expected to be included, and that its inclusion would cause the plaintiff no surprise. Indeed, the defendant's submissions point to the fact that the first expert opinion on breach of duty obtained by the plaintiff included an opinion in the very terms of s 5O of the Civil Liability Act.

40. The defendant submits that, having regard to the fact that there was a significant change in the expert evidence on causation effected by the plaintiff's service of the second report of Associate Professor Kimber, it was entirely reasonable for the defendant at that stage to seek to obtain further expert reports and to serve the report of Dr Pincus. The defendant points to the fact that, at that time, the proceedings had not been fixed for hearing, that there had not been a call-over fixed at which a hearing date would be determined, that the plaintiff's Evidentiary Statement had not been filed and that, accordingly, it was right to regard the matter as being still in the course of case management. The defendant submitted that a proper and unchallenged explanation had been given for the events as they unfolded and that, having regard to what had occurred at that point in time, there was no prejudice which could not be remedied to the plaintiff.

39. The plaintiff’s counsel submits that there was no basis for a review to be undertaken by this Court. He submitted that it was plain that at an early time, at least by the end of April 2022 when the defendant did not serve any further expert reports on liability dealing directly with breach of duty, the defendant had made a deliberate forensic decision to abandon the contest about breach of duty and had abandoned it as an issue in the case. The plaintiff’s counsel submits that in light of that abandonment, it was now too late for the defendant to seek to re-enter the field of breach of duty and seek to contest it by providing the relevant reports.

40. The plaintiff also submitted that it was too late for the defendant to seek to amend its Defence to raise s 5O. That submission seemed to me to be largely dependent upon the proposition, which I earlier identified, that it was the defendant's case that the plaintiff had abandoned the field of breach of duty and should not be allowed re-raise it.

41. The plaintiff submitted that the defendant did not point to any material error which would warrant overturning the Registrar's exercise of discretion and that the defendant had not shown a sufficient reason to depart from the Registrar's decision.

42. Finally, the plaintiff submitted that she had been prejudiced by agreeing to an extended delay before the mediation to enable the defendant to complete service of its expert material, and to a delay since August 2022 in the allocation of a hearing date.

Discernment

45. This is a very complex medical case. It has serious ramifications for both the plaintiff and the defendant. The plaintiff claims, by reason of the negligence, that she has had to undergo an unnecessary liver transplant operation and that she has had a very serious and difficult medical history since that time which has affected her ability to attend school, to obtain a good education within a reasonable time and which has limited her employment prospects. She also notes that it has created significant disabilities in her physical life.

46. For the defendant, an experienced specialist, an allegation such as this is a very serious one and will undoubtedly reflect upon his reputation and upon his standing in the medical community.

47. I do not accept the submission of counsel for the plaintiff that the defendant has at any time abandoned the issue of breach of duty. The defendant's Defence denies any breach of duty. That has never changed. When the solicitor for the plaintiff asked the solicitor for the defendant, by correspondence in late August 2022, if that approach had changed, the solicitor for the plaintiff was told that it had not.

48. It is always appropriate for a defendant to carefully consider the extent of expert material that it obtains and serves to defend a case. The solicitor for the defendant has given an explanation as to why it was considered necessary at a late point in time (in terms of case management) to obtain further reports on the issue of breach of duty. That explanation was not challenged and, by detailed reference to the various expert reports, demonstrates a considered, careful and thoughtful approach by the defendant to this litigation. I see no room for any criticism of that explanation, nor any inadequacy of it. It simply reflects the ebbs and flows of complex litigation. Indeed, what it shows is that, at a relatively early time after the service of the report in reply of Associate Professor Kimber, a proper review was undertaken of the position of the defendant. The further reports sought to address issues identified by this review. The defendant took a period of about two months to obtain the principal report and a further month to serve the second report.

49. I also do not accept that the plaintiff has been prejudiced. The case had not been fixed for hearing. The plaintiff did not suggest that Dr McAdam was not available to respond to the reports on breach of duty which the defendant had obtained and served. The plaintiff did not suggest that she was unable to obtain a report from any other expert to respond to these reports. It is unlikely that a hearing date in a complex case such as this would be fixed for a further six to nine months. There is abundant time for the plaintiff to obtain further reports if that is necessary and if the plaintiff wishes so to do.

50. As the issue of breach of duty was always a live matter, there is no additional cost to the plaintiff created by the delay. It was not suggested to me that the lack of success of the mediation in any way related to the absence of these proposed expert reports, now served by the defendant.

51. So, from the plaintiff's perspective, these reports, whilst they come late and require an extension of the relevant order, are part and parcel of the ordinary flow of litigation and a timely reconsideration by parties of their respective positions, created by, to my satisfaction, the service of an additional expert report by the plaintiff in respect of which no Court order existed. There is nothing, other than the delay, which is in any way prejudicial to the plaintiff and I cannot see, in the light of the fact that a hearing date is not fixed, that the delay causes any prejudice to the plaintiff.

52. On the other side of the fence, there is significant prejudice to the defendant if he is not allowed to adduce expert evidence on breach of duty which touches upon the complex questions of professional standards at a time over 20 years ago. The defendant would be asked to conduct his trial on inadequate material and evidence, which would in effect mean engaging in the litigation with one hand tied metaphorically behind his back.

53. The interests of justice mandate a fair trial. That means that both parties have a proper opportunity to obtain all of the evidence, both lay and expert, which they wish to rely upon, and that evidence is then put before the Court to enable a full and complete determination of the proceedings. There was no basis, in my view, for the Registrar to refuse to extend time for the service of the reports and, as a consequence, to refuse the defendant leave to amend his Defence.

54. I do not need to identify a discrete error in the Registrar's decision, and it is preferable that I do not. I have paid careful attention to the constraints which should apply, but in my decision the exercise of the discretion in this case is all one-way – largely because the submissions of the plaintiff fix upon a fiction, namely, that the defendant has abandoned the field of breach of duty.

55. In all of the circumstances, therefore, I am satisfied that:

1. the review ought be upheld;

2. the decision of the Registrar dated 27 February 2023 should be set aside; and

3. the Court should proceed to make orders by way of directions for the further conduct of the matter.

Orders

56. I make the following orders:

1. The decision of Registrar Jones dated 27 February 2023 is set aside and discharged.

2. Order, pursuant to rule 1.12 of the Uniform Civil Procedure Rules 2005, that the time for the defendant to serve expert liability evidence regarding breach of duty is extended up to and including 11 November 2022.

3. Grant the defendant leave to rely upon the report of Dr Scott Dunlop dated September 2022 and which was served on the plaintiff on 7 October 2022.

4. Grant leave to the defendant to rely upon the report of Dr David Pincus dated 4 August 2021.

5. Grant leave to the defendant to file an Amended Defence in the form annexed to the affidavit of Donald Andrew Grant dated 9 November 2022 providing that any amended Defence is filed no later than midday Friday 9 June 2023.

6. Stand the proceedings over for further directions before the Common Law Registrar on 13 June 2023.

7. Order the defendant to pay the costs of the Notice of Motion heard and determined by the Registrar, and the costs of the review which this Court has heard and determined.

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Decision last updated: 23 June 2023