Balnaves v Armellin
[2011] ACTSC 67
•5 May 2011
SUSAN BALNAVES v ROBERT ARMELLIN
[2011] ACTSC 67 (5 May 2011)
PRACTICE AND PROCEDURE – amendment of pleading – action for damages for medical negligence – inadequate post-operative care – hearing adjourned part-heard after two days – plaintiff qualifying further expert witness – application to amend to allege negligent performance of surgery – Court Procedures Rules 2006, rr 21, 502, 503 – whether fresh cause of action – principles to be applied – application to amend refused.
Limitation Act 1985 (ACT), s16B
Court Procedures Rules 2006 (ACT), rr 21, 75, 76, 502, 503, 514
Civil Law (Wrongs) Amendment Regulation 2004 (ACT)
Hamilton v Australian Capital Territory [2011] ACTSC 45
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Worldwide Corporation Ltd v GTP Ltd [1998] EWCA Civ 1894
Media Ocean Ltd v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319
Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd (No 2) [2010] FCA 128
Tran v Calvista Australia Pty Ltd [2010] ACTCA 5
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
No. SC 442 of 2006
Judge: Master Harper
Supreme Court of the ACT
Date: 5 May 2011
IN THE SUPREME COURT OF THE )
) No. SC 442 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SUSAN BALNAVES
Plaintiff
AND:ROBERT ARMELLIN
Defendant
ORDER
Judge: Master Harper
Date: 5 May 2011
Place: Canberra
THE COURT ORDERS THAT:
the proceeding be reinstated.
the action be listed before the Registrar or Deputy Registrar for a listing hearing with a view to fixing a date for the completion of the hearing.
the plaintiff’s application dated 13 October 2009 be otherwise dismissed.
the plaintiff pay the defendant’s costs of the application.
those costs not be recoverable until final orders are made in the action.
The plaintiff in this action for damages for medical negligence seeks leave to make further amendments to her statement of claim, during the interrupted course of the hearing of the action.
The defendant is a specialist obstetrician and gynaecologist. The plaintiff was his patient. Her claim concerns the consequences of a total abdominal hysterectomy performed by the defendant upon her at Calvary Private Hospital on 4 February 2005.
The action was commenced on 8 June 2006 by originating application accompanied by statement of claim. A defence was filed later in the same month. In February 2008 the solicitors for the parties completed and signed a certificate of readiness. In April 2008 the then Deputy Registrar fixed the action for hearing on 15 July 2008. The solicitors who attended the listing hearing confirmed the estimated length of the hearing at two days.
I commenced the hearing on 15 July, and devoted the available two days to it. The plaintiff was examined and cross-examined over about a day, and an expert witness called by counsel for the plaintiff, Dr McMaster-Fay, completed his oral evidence. Dr McMaster-Fay is a specialist gynaecologist, obstetrician and endoscopic surgeon. He is also a clinical lecturer at the University of Sydney, and practises at Emu Plains and Westmead. Counsel agreed that the balance of the hearing might take another two days. At the end of the second day I adjourned the further hearing to a date to be fixed. I granted leave to the solicitors for the parties to approach the list clerk for that purpose.
Then as now, my hearing list was and is generally full for the next twelve months. I would thus have expected the matter to come back into my list to complete the hearing in mid-2009. I saw no necessity for further case management and did not direct that the action be listed for that purpose.
Contrary to my expectation, it appears that a date for the resumption of the hearing was not fixed. On 22 July 2009, the Registrar issued a notice to the solicitors for the parties informing them that pursuant to rule 75(2) of the Court Procedures Rules 2006 (ACT), the action was taken to have been struck out on 17 July 2009.
Rule 75 is in the following terms:
When proceeding taken to be dismissed
75(1) A proceeding is taken to be dismissed in relation to a defendant if –
(a) at the end of 1 year after the day the originating process is issued, an affidavit of service of the process on the defendant has not been filed in the court; or
(b) at the end of 1 year after the day the originating process is served on the defendant –
(i) A notice of intention to respond or defence has not been filed in the court by the defendant; and
(ii) Judgment has not been entered in relation to the defendant; and
(iii) The proceeding has not otherwise been disposed of in relation to the defendant.
(2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.
(3) For sub-rule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the proceeding.
(4) A proceeding is taken to be dismissed under sub-rule (1) or (2) on the day after the day the relevant 1-year period mentioned in the sub-rule ends.
On 13 October 2009 the plaintiff’s solicitors filed an application seeking an order that the action be reinstated, leave to amend the statement of claim and leave to approach the list clerk to obtain a date for the further hearing.
Rule 76 now provides:
Reinstating dismissed proceeding
76 (1) A person whose proceeding has been dismissed under rule 75 may apply to the court to reinstate the proceeding.
(2) The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding.
(3) A proceeding that has been dismissed under rule 75(2) is reinstated if, before the end of 1 year after the day the proceeding is dismissed, a party to the proceeding files a document in the proceeding.
(4) The party filing the document must serve a copy of the document on each other active party to the proceeding no later than 3 days after the day the document is filed.
(5) For any time limit (including a limitation period), a proceeding that is reinstated is taken to have started on the day the originating process for the proceeding was filed in the court and is taken never to have been dismissed.
Sub-rules 76(3), (4) and (5) came into effect on 1 January 2010. At the time of the plaintiff’s application, automatic reinstatement by filing any document was not available, and an order of the court was needed. It should be noted that the effect of rule 75 is that on the expiry of the prescribed period, the proceeding is taken to be dismissed. The dismissal takes effect purely by the passage of time. It is not effected by the notice issued to the parties by the Registrar, which is strictly not required by the Rules but is issued as a matter of court policy. It is not uncommon for a hearing date to be fixed more than a year in advance, and regrettably not unknown for judgment to be reserved for more than a year. It is unnecessary for me to determine whether rule 75 leads to automatic dismissal of an action where no step is taken by any party in either of those circumstances.
The plaintiff’s application was supported by an affidavit by Mr Rees, solicitor. Mr Rees deposed that his firm had sought reports from Dr Andrew Korda, whose final report had been received on 13 July 2009 and served on the defendant’s solicitors on 27 August 2009. As a result of his reports, counsel for the plaintiff had advised that the statement of claim should be amended. A copy of a draft amended statement of claim was annexed to the affidavit.
The application was returned before me on 30 October 2009, when I made directions by consent about further affidavits and stood the application over to 27 November 2009. The plaintiff put on an affidavit annexing correspondence between the solicitors and copies of reports by Dr Korda. Dr Korda is Professor of Obstetrics and Gynaecology at the University of Western Sydney and practises as a specialist in those fields at Newtown and Potts Point.
The application was unable to proceed on 27 November 2009 because of the sudden illness of senior counsel for the defendant. The court was unable to offer the parties another date until 11 March 2010, when I heard the application, which occupied the whole of that day.
With effect from 1 January 2010, rule 76 was amended to provide for automatic reinstatement of an action dismissed under rule 75, on the filing of any document. Both parties filed a number of documents between the date of dismissal and the end of 2009, though none after the end of 2009. It is arguable that the amendments operated retrospectively so as to effect the reinstatement of the action when the plaintiff’s application was filed on 13 October 2009. Counsel for the defendant made no submission that the action should not be reinstated, and for more abundant caution I shall order its reinstatement.
The pleadings
The original statement of claim set out in narrative fashion, over some forty-four paragraphs, the factual background to the plaintiff’s claim. Although the defendant made no application to strike out any portion of the statement of claim, it seems to me that it fell well short of the standards set by Refshauge J in Hamilton v Australian Capital Territory [2011] ACTSC 45. His Honour was there critical of a statement of claim which he described as a mixture of material facts, particulars and evidence. The present statement of claim was, of course, drafted well before His Honour’s decision was published.
For present purposes, it is enough to set out the particulars of negligence asserted against the defendant. In the original statement of claim, they were as follows:
(i) Failed to investigate the cause of the plaintiff’s incontinence prior to his [sic] discharge from hospital on 9 February 2005.
(ii) Failed to determine that the plaintiff had or probably had a vesico-vaginal fistula.
(iii) Failed to treat the plaintiff’s urinary incontinence immediately.
(iv) Failed to advise or arrange for the re-insertion of an indwelling urinary catheter on 8 February 2005 or, alternatively, 9 February 2005.
(v) Failed to diagnose and/or treat the plaintiff’s continued urinary incontinence on 14 February 2005.
I should quote paragraph 43 of the original statement of claim:
In the circumstances pleaded, the defendant was under a duty to the plaintiff to exercise all reasonable care and skill in and about the conduct of the surgery and her post-operative care.
Notwithstanding the reference to the surgery, it will be noted that all of the particulars of negligence were referable to post-operative care and none were referable to the manner in which the surgery itself was carried out.
The defence, filed within two weeks of the statement of claim, admitted many of the forty-four paragraphs, responded to many others by saying that the defendant did not know and could not admit them, and, significantly, denied negligence.
On 16 July 2008, the second day of the hearing, I gave leave to the plaintiff without opposition to amend the statement of claim by adding two additional particulars of negligence:
(vi) Failing to advise the plaintiff at or about the time of her discharge from hospital to seek medical advice if there be any further involuntary urinary discharge.
(vii) Advising the plaintiff at or about the time of her discharge from hospital that her condition was excellent when that was, and ought to have been know [sic] to the defendant not to be the fact.
It will be apparent that these additional particulars of negligence related solely to post-operative care and not to the performance of the surgery.
The draft amended statement of claim annexed to Mr Rees’s affidavit in support of the application for leave to amend in October 2009 added a number of paragraphs under a heading “Material Events”, added a number of further particulars of negligence, and added certain particulars of injuries not previously in the document. It is necessary for me to set out the material sought to be added to the pleading:
(Material Events)
6A Prior to the surgery the defendant was provided by the plaintiff with a history which included a history of two previous cesaraen [sic] sections.
6B During the course of the surgery the defendant observed that the plaintiff had fibroids equivalent to the size of twelve week uterogestation and adhesions to the pouch of Douglas.
6C During surgery the defendant also observed that the plaintiff’s bladder was very adherent to the cervix.
6D The defendant further observed surgery was difficult due to excess adhesions.
6E The matters pleaded in paragraph 6A-6E predispose [sic] the plaintiff to the risk of:
(i) Bladder damage
(ii) Vescio-vaginal [sic] fistula
6F The defendant used a surgical method known as “blunt dissection” to reflect the plaintiff’s bladder.
6G In the circumstances pleaded the use of “blunt dissection” was contrary to proper surgical practice.
6H The use of the “blunt dissection” in the circumstances pleaded caused the plaintiff to suffer:
(i) Bladder damage
(ii) Vescio-vaginal [sic] fistula
To the particulars of negligence were added the following:
(viii) Failure to suspect the possibility of the plaintiff having a vescio-vaginal [sic] fistula on 6 February 2005.
(ix) Failure to suspect a vescio-vaginal [sic] fistula on 8 February 2005
(x) Directing the nursing staff on 8 February 2005 to remove the indwelling catheter from the plaintiff without further investigations in relation to the cause of the plaintiff’s urinary discharge.
(xi) Failure to perform a cystogram or a CT IVP/Cystogram on the plaintiff on 7 or 8 February 2005.
(xii) Failure on the 7 February 2005 and thereafter to arrange for the plaintiff to be examined by a urologist.
(xiii) Inappropriate care in the performance of the surgery in particular the use of a blunt dissection method to reflect the plaintiff’s bladder from her uterus.
The additional particulars of injuries sought to be pleaded were as follows:
(i) Damage to the bladder.
(ii) Vescio-vaginal [sic] fistula
(iii) A loss of chance of non-surgical intervention for the treatment of the vescio-vaginal [sic] fistula.
The principal concern of the defendant about the amendments sought to be made arises from particular of negligence (xiii), and particular of injury (i) damage to the bladder, both of which raise for the first time the issue of whether or not the defendant was negligent in his performance of the surgical procedure on 4 February 2005.
Pre-action correspondence
It is apparent that the solicitors for the parties were instructed within a few months of the operation. On 26 May 2005 they wrote to the defendant notifying him of a possible claim arising out of the surgical procedure. They enclosed a personal injury claim notification form in the form prescribed by the Civil Law (Wrongs) Amendment Regulation 2004 (ACT). The notification form was a printed one, published by the Law Society of the Australian Capital Territory and completed in handwriting by the plaintiff’s then solicitor. The “date of accident” was given as 4 February 2005 and the “description of the accident” was completed as follows:
Hysterectomy carried out 4 April 2005 - complications following surgery. Failure to diagnose problem re vesico vaginal fistula.
The “injuries” were listed as “vesico vaginal fistula resulting in further surgery”. The item “what did the health service provider do or not do which caused the injury or worsened a pre-existing injury?” was answered “failure to diagnose; negligent performance of surgery”.
The defendant’s solicitors wrote to the plaintiff’s solicitors on 21 July 2005, asking a number of questions. Question and answer 10 were:
What act or omission of Dr Armellin is alleged to have caused the onset of the fistula?
During the procedure on 4 February 2005 the applicant’s bladder was damages [sic] and this in turn caused the fistula. The fistula was not detected during the operation nor in the ensuing five days afterwards.
On 17 January 2006, following further correspondence not in evidence, the defendant’s solicitors wrote as follows:
Thank you for your letter of 11 January 2006.
Liability is not admitted.
We have reviewed the treatment provided by Dr Armellin and it would appear your client unfortunately suffered an inadvertent injury to the bladder during the course of her surgery and that was one of the risks which had been discussed pre-operatively.
The operation performed on your client was complex as she had a large fibroid uterus which was lying on the bladder.
It is likely that a very small tear to the bladder may have occurred during surgery. The tear was very small because:
(a) It was not observed during the surgery – it is standard practice to check whether or not any tears/perforations have occurred.
(b) No urine entered into the vagina during the surgery.
(c) The first time the presence of urine was noticed was some 2 days after the operation. The next time the plaintiff contacted the doctor complaining of a similar problem was on 14 February 2005.
(d) My client deeply regrets that there are any adverse complications arising from the surgery. However, he did not perform the surgery negligently. If you have any evidence that suggests Dr Armellin was negligent please serve us with that material as soon as practicable.
On 1 February 2006 the plaintiff’s solicitors responded as follows:
We thank you for your letter of 17 January 2006 and have noted its contents.
Whilst we do not accept your assertion that the surgery was not performed negligently, we concede that our client would have difficulty in succeeding if she was simply relying on the manner in which the surgery was performed. We believe, however, your client was negligent in failing to diagnose the fistula whilst our client was still in hospital, thereby necessitating a second operation.
The further procedure in April was due to the fact that the initial problem was not diagnosed by Dr Armellin until more than five days after the first operation. By that time it was too late to perform a second procedure and our client had to wait for a further seven weeks before having the surgery.
In the light of the denial of liability we are instructed to commence proceedings in the ACT Supreme Court.
The hearing
The hearing commenced on 15 July 2008. Mr Segal of counsel appeared for the plaintiff. Mr Bartley SC appeared for the defendant. Prior to opening, Mr Segal sought leave, without objection, to make the amendments I have previously mentioned to the particulars of negligence in the statement of claim. Mr Segal in his opening recited the occurrence of the surgical procedure on 4 February 2005 but without any suggestion of negligence on the defendant’s part in the performance of the surgery. He said that the case was all about a fistula that developed during the surgery, having its genesis during the surgery but developing over a period. There were a number of factors which should have alerted the defendant to the fact that there was or might have been a fistula, and there were steps he should have taken to deal with it. He should have left a catheter in place for a period of weeks. If he had done so, the fistula would probably have self-repaired. In response to a question of mine, Mr Segal confirmed that the negligence was in ordering the removal of the catheter and in failing to diagnose the fistula. A further aspect of the negligence was to send the plaintiff home with a note that her progress was excellent when it was not. Nothing else in Mr Segal’s opening suggested any allegation of negligence by the defendant in the performance of the surgery. Mr Segal summarised the case against the defendant (at transcript page 26) as follows:
The case against the defendant, therefore, is that he ought to have diagnosed or at least formed a view that there was a real prospect of there having been a fistula that was developed, that had developed, during surgery and then on and that he should not have discharged her home without the catheter. He should not have discharged her home with the comfort that everything was excellent, he should have warned her at the very least as to immediately re-attending should there be any continued leakage, assuming he hadn’t done the right thing in the first place and the evidence will be that there were a series of indicia that told him of this risk, many of them being indicia arising from his own comments, his own observations as to the surgery, the history of caesars, the nature of the uterine discharge which wasn’t investigated at all. He simply did not take any steps to discount other causes and the result had to be that he failed in his duty to deal with this situation appropriately.
At the end of the plaintiff’s opening, Mr Bartley SC gave a brief response. Not surprisingly, he made no mention in the response of the surgical procedure itself.
The plaintiff was then called and gave evidence in chief. She was not asked any questions, nor did she volunteer anything, which might have gone to the issue of negligence in the performance of the surgery.
In the course of cross-examination, Mr Bartley SC asked the question “and you make no complaint about the skill with which he performed the surgery?”. Mr Segal objected to the question. I allowed it. The plaintiff answered that she had no complaints about Dr Armellin’s skill.
Mr Bartley SC returned to this question soon afterwards. He asked the plaintiff about the claim notification form sent by her solicitor to the defendant. He took her to the part of the form which had been completed as “failure to diagnose and negligent performance of the surgery”. The form had been completed in the solicitor’s handwriting but the plaintiff had signed it. Mr Bartley SC put to the plaintiff that she had never believed that the surgery had been performed negligently. Her initial response was that she did not think that she was followed up properly. I put to her that the form read as though she was complaining about the performance of the surgery itself. Mr Segal objected. The plaintiff left the courtroom while I dealt with the objection. Part of his objection was that negligence in the course of the surgery had not been pleaded. I put to Mr Segal “but it’s not part of your case is it? You’re not putting any negligence in the performance of the surgical procedure?” Mr Segal responded that he was not.
The plaintiff was recalled. Mr Bartley SC pursued the question. He put to the plaintiff that she had not at any stage been critical of Dr Armellin in relation to the performance of the surgery itself. Her reply was that she was not sure if she was qualified to answer that question. In relation to the claim notification form, she said that at the time she signed it she believed it to be correct.
Whilst the plaintiff did not concede that she had never held the view that the defendant might have been negligent in the performance of the surgery, it is clear from the way in which the hearing proceeded that this was not her case. Her case was based entirely upon the asserted negligence of the defendant in her post-operative care.
Dr McMaster-Fay gave oral evidence on the second day of the hearing. He was highly critical of the defendant’s professional performance during the period after the operation but did not, either in his reports or his oral evidence in chief, criticise the performance of the surgery. His evidence about the surgery went no further than to say that it should have been clear to Dr Armellin, from a number of factors about the surgery, that she was at risk of the development of a fistula after it.
The course of events after the adjournment
At the conclusion of the second day of the hearing, the opinion of both counsel was that the rest of the hearing would take another two days. Counsel for the plaintiff had indicated his intention, on the first day, to call the plaintiff’s husband. Senior counsel for the defendant proposed to call the defendant himself and an expert witness, Dr Carey, a specialist urogynaecologist. Dr Carey’s report had been served on the plaintiff’s solicitors well in advance of the hearing and a copy had been marked for identification.
I gave leave to the parties to fix a date to complete the hearing.
Mr Robb, solicitor with the plaintiff’s firm at the time, put on an affidavit in November 2009. He said that he had been advised by Mr Segal following the adjournment “that, having regard to the expert evidence that had been given, it was appropriate to arrange another expert. As a result arrangements were made for Dr Andrew Korda to provide a report.” Mr Robb wrote to Dr Korda requesting a report on 6 August 2008. He received the report on 24 September 2008. The report was a lengthy one, running to some twenty-eight pages.
On 5 November 2008, Mr Robb sent Dr Korda further material including clinical notes and articles from professional publications. He asked a number of questions to be addressed in a supplementary report, including questions as to the level of skill and care shown by the defendant in the course of the surgery.
On 10 November 2008, the defendant’s solicitors wrote to the plaintiff’s solicitors noting that no steps has been taken to have a date fixed for the completion of the hearing and giving notice of their intention to list the matter before me for further directions unless steps were taken in that regard.
On 5 January 2009, Dr Korda prepared a supplementary report (four pages) in which, among other things, he expressed the following view:
When the bladder is adherent to the uterus as a result of previous Caesarean sections and it is difficult to separate from the lower uterine segment, it is imperative that sharp dissection is used, as blunt dissection will inevitably result in inadvertent entry to the bladder, subsequent bladder injury and the possibility of developing vesico-vaginal fistulas. It is my view that the use of blunt dissection during a hysterectomy is below an appropriate standard expected of a practicing [sic] gynaecologist and demonstrates inappropriate skill and care.
... It is my view that in the presence of previous scarring due to caesarean sections, the bladder is morbidly adherent to the lower uterine segment. Under these circumstances, the bladder has to be reflected from the uterus by careful sharp dissection using sharp scissors. Using blunt dissection will, more often than not, result in inadvertent bladder entry and damage. On the balance of probabilities, using blunt dissection was a failure to exercise appropriate care during surgery.
On 22 January 2009 the plaintiff’s solicitors wrote to the defendant’s solicitors, saying that they had obtained further expert medical evidence and would need to amend the statement of claim. They were awaiting draft amendments from counsel.
On the same day, the plaintiff’s solicitors sent the plaintiff copies of Dr Korda’s reports. They asked her to check for any factual errors, after which they would contact Dr Korda to make any necessary alterations.
On 19 March 2009 they sent the defendant’s solicitors a draft of the proposed amended statement of claim. The plaintiff evidently provided her solicitors with some comments on Dr Korda’s report. On 15 April 2009 the solicitors wrote to Dr Korda setting out her comments and asking for a response from him, and if necessary an amended report. Dr Korda, no doubt justifiably, took some time to respond. He wrote to the solicitors on 13 July 2009 with comments. He found it unnecessary to alter his earlier reports. On 27 August 2009 the plaintiff’s solicitors sent to the defendant’s solicitors copies of Dr Korda’s reports of 19 September 2008 and 5 January 2009, and of their subsequent correspondence with Dr Korda.
Applicable rules of court
Amendment of the pleadings is dealt with by Part 2.7 of the Court Procedures Rules 2006. The plaintiff relies on rule 502, the relevant provisions of which are:
502 Amendment – of documents
(1) At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend . . . a pleading . . . in the way it considers appropriate.
(2) The court may give leave, or give a direction on application by the party or on its own initiative
. . .
(6) This rule is subject to rule 503 (amendment – after limitation period).
The surgery in the present case was carried out on 4 February 2005. The generally applicable limitation period within which to bring an action for negligence by a surgeon causing injury in the course of an operation is three years: Limitation Act 1985 (ACT), section 16B. Senior counsel for the defendant submits that the effect of allowing the amendment sought would be to include a new cause of action after the expiry of the applicable limitation period, and that accordingly rule 503 is applicable:
503 Amendment – after limitation period
(1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
. . .
(4) The court may give leave to make an amendment to include a new cause of action only if –
(a) The court considers it appropriate; and
(b) The new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
Rule 514, which I need not set out in full, includes a provision that an amendment including a cause of action arising after the proceeding started takes effect on the day the order giving leave was made, but for a limitation period, the proceeding as amended is taken to have started when the original proceeding started.
These rules are to be applied in the light of the purpose and objectives set out in rule 21:
21 Purpose of ch 2 etc
(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.
(2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving -
(a) The just resolution of the real issues in the proceeding; and
(b) The timely disposal of the proceeding, and all other proceedings in the court, at a cost affordable by the respective parties.
(3) The parties to a civil proceeding must help the court to achieve the objectives.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
Part 2.7, which includes rules 502, 503 and 514, is contained in chapter 2.
The competing submissions
Counsel for the plaintiff submits that the effect of the amendment would not be to add a fresh cause of action, because negligence in carrying out the surgery was asserted in the statement of claim from the beginning. He points to paragraphs 43 and 44 of the original statement of claim, which were in the following terms:
43. In the circumstances pleaded, the defendant was under a duty to the plaintiff to exercise all reasonable care and skill in and about the conduct of the surgery and her post-operative care.
44. The defendant breached the said duty of care. (Then followed the particulars of negligence which I have set out in paragraph 16 above).
I reject this submission. Firstly, there was nothing in the narrative paragraphs of the statement of claim in which the surgery was described (paragraphs 3 – 6) which was capable of being read as an assertion of negligence. Secondly, the particulars of negligence to paragraph 44 all relate to the post-operative period. None dealt with anything which happened during the operation itself. Hence the breach of duty of care alleged against the defendant in the original statement of claim related solely to the post-operative period. It is not possible to read the original statement of claim as including an allegation of negligence in the conduct of the surgical procedure.
Next, counsel for the plaintiff submits that the cause of action he now wishes to maintain (using blunt as opposed to sharp dissection of the bladder from the uterus) was something the plaintiff and her advisers did not find out about until they received Dr Korda’s report. The limitation period accordingly did not begin to run until then.
This submission relies on an interpretation of section 16B of the Limitation Act which counsel for the plaintiff urges upon me. The section is in the following terms:
16B Other claims for damages for personal injury
. . .
(2) The cause of action is not maintainable if brought –
(a) if the injury is or includes a disease or disorder – three years of more after the day the person injured first knows –
(i) that the person has suffered an injury that is or includes a disease or disorder; and
(ii) that the injury is related to someone else’s act or omission; or
(b) in any other case – three years or more after the day the injury happened.
In the present case, the plaintiff must be taken to have known virtually immediately that she had “suffered an injury” being the removal of her uterus and ovaries with the unavoidable disruption of the surrounding parts of her body. The injury she complains of is the vesico-vaginal fistula. She knew about that injury within a short time of the surgery and long before she commenced her action. Counsel for the plaintiff has not pointed to any disease or disorder separate from the development of the fistula. To the extent that there might be any argument that the limitation period for the plaintiff to commence proceedings for negligence in the conduct of the surgical procedure commenced at a later date than the date of the operation, the commencing date could not have been any later than 17 February 2005 when the fistula was diagnosed. On either view the limitation period was well and truly past before the application was made.
Counsel for the plaintiff did not make any other submission which if accepted would answer the defendant’s submission that the amendment seeks to introduce a fresh cause of action. I am satisfied that the cause of action in negligence during the conduct of the surgery which is sought to be introduced is a separate and different cause of action from the present cause of action in negligence in the course of post-operative care. Hence rule 503 is applicable.
Sub-rule 503(4) permits the court to give leave to make an amendment to include a new cause of action only if it arises out of the same facts or substantially the same facts as the existing cause of action. I acknowledge the defendant’s submission that the causes of action arise out of different facts, one arising out of the surgery itself and the other out of the post-operative care, but I am persuaded, having regard to the manner in which the facts have been pleaded (without objection) in the original statement of claim, that the two causes of action arise out of substantially the same facts. Accordingly, sub-rule 503(4) would not prevent the court giving leave to make the amendment if the court otherwise considered it appropriate. Of course, the fact that the new cause of action would otherwise be out of time, so that there would be a complete defence to it if brought by separate action, must be seen as a relevant factor to be taken into account in the exercise of the discretion. Indeed, senior counsel for the defendant submits that in exercising the discretion under rule 503, the court should go about its task in the same fashion as it would on an application to extend a limitation period. I am not sure that the bar is quite as high as that.
Principles to be applied
Until recent times, the court has generally been disposed to permit amendments to pleadings reasonably freely, subject to orders for costs, including costs thrown away, in reliance, now seen to have been to some extent misconceived, on the decision of the High Court of Australia in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, even since the introduction of the Court Procedures Rules in mid-2006. The correct approach to late applications for amendment has now been explained by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, on appeal from this court and dealing with the same rules. Gummow, Hayne, Crennan, Kiefel and Bell JJ in a joint judgment dealt with the power to allow amendment under rule 502 and how that fitted in with the objectives of the rules set out in rule 21. Their Honours said at paragraph 92 that the purposes stated in rule 21 reflect principles of case management by the courts, now an accepted aspect of the system of civil justice administered by courts in Australia. The principles are directed to tackling the problems of delay and costs in the litigation process. The civil litigation rules are no longer to be considered as directed only to the resolution of the dispute between the parties to the particular proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect on the court and other litigants. Their Honours quoted from the judgment of the English Court of Appeal in Worldwide Corporation Ltd v GTP Ltd [1998] EWCA Civ 1894, delivered by Waller LJ, to the effect that where a party had had a sufficient opportunity to plead his or her case, it might be necessary for the court to make a decision which might produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. Any suggestion that a party has a right to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment is unfounded. A party has the right to invoke the jurisdiction and the powers of the court to seek the resolution of a dispute, and may have a right to amend without leave depending on the rules of the court, but the question of further amendment is dependent on the court’s discretionary power. Parties should be given a proper opportunity to plead their case, but limits may be placed upon re-pleading when delay and cost are taken into account. An order for costs may not always provide sufficient compensation and therefore achieve a just resolution.
Their Honours went on to say (at paragraphs 102-103) that the objectives in rule 21 do not require that every application for amendment should be refused simply because it will involve the waste of some costs, and some degree of delay. The nature and importance of the amendment to the party applying cannot be overlooked. Their Honours said at para 102:
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 be 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.
I have been taken by counsel in submissions to subsequent decisions in which these principles have been applied, including Media Ocean Ltd v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319 per Jagot J; Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd (No 2) [2010] FCA 128 per Collier J; and in the Court of Appeal of this court, Tran v Calvista Australia Pty Ltd [2010] ACTCA 5. Each case turns on its own facts, and it is for the court to take account of the balancing considerations on each side in determining an application to amend.
Consideration of the issues
In relation to the present application, it seems to me significant that the application to amend has been made only because the solicitors and counsel for the plaintiff have, well into the trial, identified an expert medical witness, in the same field as the expert they originally qualified and called to give evidence, who expresses a different opinion about the level of skill exhibited by the defendant during the surgical procedure, and the professional acceptability of the method he adopted for bladder dissection.
The plaintiff’s advisers had clearly considered the question of whether there may have been negligence in the performance of the surgery. They had qualified an expert, not merely an experienced practising gynaecologist and obstetrician but a university lecturer in the field. In drafting the statement of claim, they had cut their cloth consistently with his expert opinion. The solicitors had signed a certificate of readiness, certifying to the court that the action was ready for trial. A hearing date had been fixed and the hearing had commenced. In the certificate of readiness, the solicitors for both sides had given an estimate of two days for the hearing. Accordingly, the court had set aside that period. The hearing did not finish in the two days. At the end of the second day, both counsel were of the view that another day of evidence would be required, with a further day for addresses. If the parties had given an accurate estimate in the certificate of readiness and at the time of listing hearing at which the date for hearing was fixed, four days would have been set aside and the hearing would have proceeded to a conclusion without the plaintiff having any opportunity to qualify and obtain a report from Dr Korda. In earlier years it might have been possible for the court to find two days to finish the hearing well before Dr Korda was able to report. The length of time available to the plaintiff’s advisers to obtain his report was not only due to the inaccurate estimate given to the court of the length the hearing would take, but also the fact that the judicial resources of the court were in late 2008, and remain, unusually stretched, for a combination of reasons. My hearing list as Master, for example, is presently fixed for the next year.
A further important consideration is that the application to amend comes at a time when the plaintiff and her first expert witness have completed their evidence. Dr McMaster-Fay, in particular, had completed his cross-examination prior to Dr Korda’s report coming into existence, and the defendant has been deprived of the opportunity for cross-examination of Dr McMaster-Fay in light of that report.
Further, the defendant has qualified and obtained a report from a gynaecologist and obstetrician, Dr Marcus Carey. Dr Carey is a urogynaecologist and is head of the units of Gynaecology 3 (pelvic floor) and Urogynaecology at the Royal Women’s Hospital in Melbourne who has taught and published extensively. His report was prepared in August 2007. It is not in evidence but has been marked for identification. I have not read it, but can assume that the assumptions he was asked to make would have been those emerging from the report of Dr McMaster-Fay, which, as I am aware, did not suggest any negligence in the conduct of the surgery by the defendant. The defendant would therefore need to provide Dr Carey with copies of the reports by Dr Korda and might need to qualify a further expert if aspects of the opinion expressed by Dr Korda proved to be outside Dr Carey’s sub-speciality. Much of the time already spent hearing evidence at the hearing would have been wasted. The estimate of counsel was that there was a further two days in the case before Dr Korda was brought into the matter at all. I suspect that if the amendment were to be granted, we would be looking at a further four days or perhaps longer. Although, unlike Aon Risk Services, this is not a case where time set aside for the hearing has already been wasted, it is undoubtedly one where there is likely to be an impact on other litigants before the court, at a time when the court’s resources are already over-extended
A further consideration is that the application to amend came before the court almost five years after the surgery, and the claim would have been hanging over the defendant’s head for a considerably longer period before it could finally be disposed of if the amendment were granted. I can take judicial notice of the fact that the defendant is covered by insurance. Nevertheless, I accept his affidavit evidence that the stress of having a new issue raised against him so long after the event is something that has had a genuine impact on him. Further, McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552, in the context of an application for extension of a limitation period in a medical negligence case, referred to a number of important influences motivating a legislature to enact limitation periods, including that it was oppressive to a defendant to allow an action to be brought long after the circumstances giving rise to it had passed; that people should be able to arrange their affairs and utilise their resources on the basis that claims will no longer be made against them; and relevantly for the present case, that insurers have a significant interest in knowing that they have no liabilities beyond a definite period. Although the present application is not one for the extension of a limitation period, these considerations seem to me relevant in considering under sub-rule 503(4) whether it is appropriate to give leave to make an amendment the effect of which would be to include a statute-barred cause of action.
For all of the above reasons, it does not seem to me appropriate that the plaintiff be granted leave to make the amendment sought so late in the day.
As I have previously said, I am satisfied that the action, if it is necessary for me to order it, should be reinstated. However, the application for leave to amend will be refused with costs.
A further order sought in the application was that the parties be given leave to approach the list clerk to obtain a date for the completion of the hearing. I made an order to that effect at the end of the second day of the hearing in July 2008. The parties did not take advantage of the order immediately. Perhaps regrettably I left the matter to the parties and did not consider that it might be necessary for me to remain involved in the case-management of the matter. With a view to bringing the hearing to a conclusion with as little further delay as possible, I propose to direct that the Registrar fix a date for a listing hearing, that date to be notified to the parties, for the purpose of fixing a date for the completion of the hearing.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 5 May 2011
Counsel for the plaintiff: Mr G P Segal
Solicitors for the plaintiff: Slater & Gordon
Counsel for the defendant: Mr A J Bartley SC
Solicitors for the defendant: Ken Cush & Associates
Date of hearing: 11 March 2010
Date of judgment: 5 May 2011
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