Bennett v Australian Capital Territory (No 2)
[2018] ACTSC 245
•24 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bennett v Australian Capital Territory (No 2) |
Citation: | [2018] ACTSC 245 |
Hearing Date: | 23 August 2018 |
DecisionDate: | 24 August 2018 |
Before: | Mossop J |
Decision: | See [36] |
Catchwords: | TORTS – NEGLIGENCE – Medical negligence – interlocutory application – request for further and better particulars – further particulars previously requested and provided – defence to pleadings filed by defendants – limited further particulars ordered |
Cases Cited: | Bennett v Australian Capital Territory [2016] ACTSC 258 |
Parties: | Mackenzie Bennett bhnf Ian Bennett (Plaintiff) Australian Capital Territory (First Defendant) George Malecky (Second Defendant) Michael Rosier (Third Defendant) |
Representation: | Counsel D Hirsch (Plaintiff) N Oram (First and Second Defendant) C Plevey (Third Defendant) |
| Solicitors Chamberlains Law Firm (Plaintiff) ACT Government Solicitor (First and Second Defendant) MinterEllison (Third Defendant) | |
File Number: | SC 117 of 2013 |
MOSSOP J:
Introduction
Contests over the provision of further and better particulars are a sport the popularity of which amongst the judiciary has substantially declined in recent years. The necessity for further particularisation is often a product of inadequate compliance with the requirements of pleading and particularisation in the rules. However, in many cases, lawyers for parties pointlessly create further disputes by making requests for particulars which are framed without reference to their proper and limited scope or by answering request for particulars in an unnecessarily obscure or argumentative manner. It is an area where good judgment must be exercised and a focus maintained upon the duty of the parties and their lawyers to properly advance the preparation of the case. It is a fertile area for judicial criticism of the competence and approach of representatives of the parties. As a consequence, disputes over particulars are perceived as multiplying unproductive areas of disputation and increasing costs rather than having the attention of the parties properly focused upon resolving proceedings as “quickly, inexpensively and efficiently as possible”.
The present proceedings are medical negligence proceedings brought by a young disabled plaintiff against the Australian Capital Territory and two doctors. The first defendant is the Australian Capital Territory that operated The Canberra Hospital (TCH) and employed speech pathologists and dietitians. The second defendant, Dr George Malecky, practised as a paediatric surgeon. The third defendant, Dr Michael Rosier, practised as a paediatrician. The plaintiff’s claims relate to two periods: first, the week after her birth in April 2007; and second, the period after July, September or August 2007 in the course of treatment by or consultation with the first, second and third defendants respectively.
The proceedings have been on foot for a considerable period of time. They were commenced in 2013. In 2016, I made orders joining the second and third defendants in the proceedings and gave leave to the plaintiff to file an Amended Statement of Claim: Bennett v Australian Capital Territory [2016] ACTSC 258. Defences to the amended claim were filed by the first and second defendants in March 2017. A Further Amended Statement of Claim regularising some matters was filed on 16 June 2017 and defence filed by the third defendant in June 2017 and amended defences filed by the first and second defendants in August 2017. The current position is that the preparation of the matter for hearing is governed by consent orders made on 22 June 2018. Expert liability evidence has been served. The plaintiff is required to serve her quantum evidence and any evidence in reply by 15 October 2018. A mediation is required to occur by the end of October 2018. An application relating to conclaves of experts is listed for further directions on 9 November 2018. The position is, therefore, that if the proceedings are not resolved at mediation there will need to be a timetable for the service by the defendants of expert evidence going to quantum and resolution of a dispute about whether or not directions should be made requiring a conclave of experts prior to the hearing of the proceedings. The intention which I infer from the structure of the orders is that the matter should be put in a position where it could be the subject of a mediation as quickly as reasonably possible and that the mediation is to occur prior to the defendants putting on evidence in relation to quantum, so as to avoid the further delay and expense that doing so would cause, even though it would mean that the evidentiary basis for the mediation was substantially less than perfect.
The application
By Application in Proceedings dated 12 July 2018, the first and second defendants sought orders requiring the provision of further particulars. An amended application was filed on 30 July 2018 correcting a number of errors in the earlier application. Attached to the application is a document containing the particulars sought by the first and second defendants, which is headed “Amended Schedule of Draft Particulars”. These were particulars of paragraphs 53, 55, 56, 64, 65, 67, 68, 72 and 73 of the Further Amended Statement of Claim. The application was supported by the affidavit of Mr Russell Thomas Bayliss dated 11 July 2018. The respondent to the application, the plaintiff, read the affidavits of Mr Jonathan Patrick May dated 13 August 2018 and 21 June 2018.
The third defendant was a spectator to this dispute. The only participation by the third defendant was in relation to a question of directions to which I will return at the conclusion of these reasons.
The submissions of the first and second defendants were essentially that:
(a)paragraphs 53-65 of the Further Amended Statement of Claim were vague, ambiguous, imprecise and too general in the terms; and
(b)paragraphs 67, 68, 69, 72 of the claim were embarrassing as they pleaded conclusions of law which were unsupported by all the facts necessary to ground those conclusions.
They submitted that the provision of further particulars was an appropriate mechanism by which to avoid the necessity for a more dramatic application to have these paragraphs struck out.
Particular reliance was placed by the first and second defendants upon the terms of one of the many expert reports that they have served, namely, the report of a Dr Liam Tjia, a paediatrician. One part of Dr Tjia’s report addresses the allegations by the plaintiff that an “appropriate feeding management plan” should have been put in place and that there should have been a “coordinated multidisciplinary management of her feeding problems”: Further Amended Statement of Claim, [56], [65]. In response to these allegations, he says:
I will make some general comments on these questions below. I must note however that I could make more specific observations and comments, which might be relevant to these questions, if I was provided with more specific and particular details of the plaintiff’s allegations in this regard. From the content of the Further Amended Statement of Claim of 17 June 2017, compared against all the clinical records provided to me, I am unable to ascertain, or really to even guess, which particular episodes of clinical assessment, advice, or management are alleged to have fallen short of appropriate multidisciplinary management, or what specific aspects of those clinical episodes led to the allegations.
The response of the plaintiff was: first, to point to the state of the litigation including the fact that the first and second defendants had either admitted or responded in detail to the challenged pleadings in their defences; and second, to contend that, in the context of the existing regime of orders that were made by consent on 22 June 2018, a diversion of resources and energy towards responding to the request for further particulars should not be countenanced by the Court.
It is convenient to address the first and second defendants’ contentions by reference to those paragraphs in relation to which further particulars are sought.
Paragraph 53
Paragraph 53 alleges that the plaintiff was managed by speech pathologists and dietitians at TCH and through an organisation referred to as Therapy ACT from July 2007 at the age of three months. It also alleges that “[t]he speech pathologists and dietitians were aware of the plaintiff’s feeding problems”. Those problems are problems which are described in the preceding paragraph of the claim. The defendants say that the period of management is not specified, that the meaning of the term “managed” is not clear and that the individuals involved are not identified. A previous request for particulars was limited to the facts giving rise to awareness of the plaintiff’s feeding problems. The response to that request was that it was a matter for evidence and that subject to the terms of the defence, it would be the subject of interrogatories. The defendants submitted that there were a significant number of staff involved and a large volume of clinical records and that, as a consequence, the provision of further particulars was appropriate. It appears, however, to be uncontroversial that the plaintiff was involved with speech pathologists and dietitians at TCH up until February 2011 and at Therapy ACT up until July 2015.
Surprisingly, nothing in the affidavit of Mr Bayliss or the first and second defendants’ written submissions disclosed the fact that the relevant paragraph of the pleading had in fact been admitted without qualification in the defence of the first defendant and not pleaded to by the second defendant. While it is possible there will be situations in which further particulars may be required in relation to allegations that have been admitted, there is no reason to do so in the present case. Clearly, significant periods are covered by the pleading, but on the pleadings the issue of the period and the meaning of “managed” is uncontroversial. I therefore will not make any orders in relation to paragraph 53.
Paragraph 55
Paragraph 55 is an equivalent pleading except that it relates to Dr Malecky and the period after September 2007. The further particulars sought are the same as in relation to paragraph 53. The request for further particulars must be considered in the light of the terms of Dr Malecky’s defence which does not admit the facts contained within paragraph 55 and then “says further” eight additional paragraphs which specifically address the nature of the relationship between Dr Malecky and the plaintiff and his consultation or other actions in relation to the “feeding problems”. The essential point made in this detailed pleading is that he saw her as a public patient in the paediatric surgery outpatient’s clinic and the substance of those consultations was of a surgical nature or related to surgical matters. Any knowledge or mention of feeding problems was only gained or made in passing. In the light of this pleading, it is clear that the second defendant appreciates the case that is made against him insofar as it is reflected in paragraph 55 and there is no need to require any further particularisation at this stage of the proceedings.
Paragraph 56
Paragraph 56 of the claim alleges that none of the defendants referred the plaintiff for “a comprehensive feeding assessment including videofluoroscopy in order to develop an appropriate feeding management plan”. The particulars sought are an explanation of what constitutes a “comprehensive feeding assessment” and what would constitute an “appropriate feeding management plan”. Also sought are identification of the risks of harm to which the precaution of a comprehensive feeding assessment was directed, identification of each occasion when the first defendant failed to refer the plaintiff for a comprehensive feeding assessment and each fact, matter or circumstance that made it reasonable for there to be a reference for a comprehensive feeding assessment.
What constituted a comprehensive feeding assessment and an appropriate feeding management plan was the subject of requests for particulars in January 2017, which were answered in March 2017. So far as a comprehensive feeding assessment is concerned, the particulars provided were: “Comprehensive feeding assessment includes videofluroscopy [sic] and related barium swallow and Cine esophagraphy. It also includes multidisciplinary feeding clinic and proper coordination between treating practitioners.” The particulars provided in relation to an appropriate feeding management plan was: “This is a matter of expert evidence. We anticipate this would have been a plan that addressed the cause of the feeding problems and a strategy to overcome them.”
Once again, these paragraphs have been pleaded to. The defences have treated the substance of the claim as being one that was focused upon the requirement for videofluoroscopy as part of an assessment of the plaintiff’s feeding problems. The first defendant denies the allegations of fact relating to TCH and Therapy ACT speech pathologists and dietitians. It says that speech pathologists and dietitians are not lawfully authorised to refer patients for videofluoroscopy and also pleads that there was a discussion amongst speech pathologists, Dr Rosier, Dr Teoh and the plaintiff’s mother in February 2009 in which a decision was made not to subject the plaintiff to a video fluoroscopy. The second defendant responds to paragraph 56 by saying that he is a paediatric surgeon and not a paediatric physician, that he does not manage feeding problems in children and did not manage the plaintiff’s alleged feeding problems.
Although considered in the abstract it is clear that there is some vagueness in components of paragraph 56, in the context of the facts of this case it is reasonably clear that the defendants have fairly understood and responded to the allegations made against them. It appears to me that the essence of the complaint about the feeding assessment was that it did not involve a videofluoroscopy. That has been responded to by the first defendant. Having regard to the existing answer to the request for particulars in relation to the appropriate feeding management plan, it appears that this is not alleged to be anything other than a plan which, in the light of the videofluoroscopy assessment, specifically addressed the feeding problems. I will therefore not make any order requiring the provision of further particulars in relation to this paragraph. I observe that the request for additional particulars of the paragraphs in the application went significantly beyond what would have been practically useful in the context of a trial.
Paragraph 64
Paragraph 64 alleges that “[t]he speech pathologists and dietitians from the hospital and Therapy ACT knew that even after exclusive tube feeding ceased in or around August 2008 and the plaintiff was regularly bottle fed, her feeding problems continued”. Particulars are sought of each person who is alleged to have had that state of mind, when they had it, the facts to be relied upon to indicate that the person had that state of mind and the period over which they are alleged to have had that state of mind. No particulars of this paragraph had previously been sought. The first defendant’s defence denies that the plaintiff was exclusively tube fed until around August 2008 but admits the balance of the allegations contained in paragraph 64. Once again, this admission is not referred to anywhere in Mr Bayliss’ affidavit or in the submissions made on behalf of the first and second defendants. In the light of the absence of any previous request for particulars and, most importantly, the terms of the first defendant’s defence, it is not appropriate to require any further particulars of this paragraph.
Paragraphs 63 and 65
Paragraph 65 alleges that:
Neither the speech pathologists and dietitians from the hospital nor those from Therapy ACT referred the plaintiff to a specialised feeding clinic that they knew existed at Westmead Hospital so that the plaintiff could have coordinated multidisciplinary management of her feeding problems.
Particulars are sought of each occasion on which it is alleged that the plaintiff should have been referred to the Westmead clinic, the risk of harm to which the referral was directed and “each fact matter or circumstance” that made it reasonable to refer the plaintiff to that clinic. It also seeks particulars of what is meant by “coordinated multidisciplinary management” and when Dr Rosier, Dr Malecky or both knew of the clinic. The reference to Dr Rosier and Dr Malecky exists because paragraph 63 of the pleading makes the same allegation of a failure to refer in relation to those doctors.
Notwithstanding that the first defendant now claims a need for particulars, it has very clearly understood and responded to the allegation in its pleadings. In relation to paragraph 65, the first defendant has pleaded:
The first defendant admits the allegation of fact contained in paragraph 65 of the amended statement of claim, but says further that such a referral was unnecessary, because the speech pathologists and dietitians from TCH and Therapy ACT possessed the requisite qualifications and expertise and says further that the third defendant and the plaintiff’s general practitioner were also involved in the plaintiff’s feeding problem management. Further, as to that allegation of fact, the first defendant says that referral to the Westmead clinic, which, at the relevant times only saw patients on Thursdays between the hours of 8:30am and 12:30pm would have been impractical, if not impossible for the plaintiff’s parents from 2007 and thereafter.
The second defendant has also responded to paragraph 63, which involves the equivalent allegation against him, and has done so consistently with his earlier assertions about the limitations on his role: “The second defendant was not obliged to refer the plaintiff to a specialised feeding clinic at Westmead Childrens Hospital as he was not managing the plaintiff’s alleged feeding problems.”
The factual issue that no referral was made is resolved on the pleadings. There is also a factual issue necessarily involving the question of causation, namely, whether a referral would have been taken up and whether the difference in services available (if any) between Westmead and the ACT was such that the plaintiff’s outcome would have been different. However, these are factual issues in relation to which I do not consider that further particulars should be required.
Paragraph 67
Particulars are also sought of paragraph 67. That paragraph alleges that the hospital breached its duty of care after July 2007 because speech pathologists and dietitians:
t. Recommended thin fluids and a Haberman feeder when they knew or ought to have known that this was contraindicated in the presence of known aspiration.
u. Provided care that was inadequate in terms of frequency.
v. Failed to provide appropriate interventions.
The first defendant has denied the allegations.
Particulars were requested in January 2017 of particular t and no useful answer was provided: “This is a matter for evidence. Subject to your Defence it will be the subject of interrogatories.” Such a response is somewhat surprising having regard to the specificity of the allegation. In my view, the defendant is entitled to further particulars of this allegation. It may be a factual matter which is well known to the parties and if so, then no difficulty will be caused by requiring the allegation to be formally pinned down. If on the other hand there is some factual uncertainty about the issue, then the defendant is entitled to know what the plaintiff alleges. I will therefore make an order requiring the plaintiff to identify:
(a)Who on behalf of the first defendant recommended thin fluids and a Haberman feeder;
(b)When is it alleged that the first defendant recommended thin fluids and a Haberman feeder.
In relation to particular u, this allegation is at such a level of vagueness as to require further particularisation. It was the subject of a request for particulars. The plaintiff responded: “This is a matter for expert evidence. See the report of Sarah Starr at p 13.” On the application before me the report of Sarah Starr was not tendered and any deficiency in particularisation of the claim by reference to its terms not identified. As a consequence, I am not in a position to assess whether or not the particulars provided were inadequate. In those circumstances, I am not satisfied that a further order should be made. I am certainly not satisfied that an order should be made in the detailed terms which were proposed by the defendants.
In relation to particular v, this is clearly another allegation which was of such imprecision that further particulars were required. A request was made for particulars of the “interventions”. The answer indicated acceptance of the proposition that interventions meant “tests, evaluations, analyses, procedures, studies, examinations and opinions”. The substance of the answer was that this was a matter for expert evidence and that: “Interventions were indicated when the plaintiff’s feeding problems were evident.” In my view the defendant is entitled to some further particularisation of this paragraph. I do not consider that the plaintiff should be required to specify every act, on every day, said not to have been undertaken, but the plaintiff must provide a substantive explanation of the point she is trying to make. I will require her to identify what were the interventions that the plaintiff says were “appropriate” and ought to have been undertaken and when those interventions ought to have been undertaken.
Paragraph 68
Paragraph 68 alleges that Dr Malecky owed the plaintiff “a duty to manage her with reasonable care and skill regarding her feeding problems whilst treating her as a private patient from September 2007”. The defendants seek that the plaintiff “[p]recisely identify the facts, matters and circumstances relied upon to allege that Dr Malecky, a paediatric surgeon, owed the plaintiff a duty to manage her feeding problems”. I do not consider that further particulars of the allegation are required. The second defendant has denied the allegation and made very clear in answers to the allegation in paragraph 55 the position that he takes in relation to the allegation of a duty in relation to feeding problems. Further particulars of the allegation are unlikely to serve any useful purpose at this stage of the proceedings.
Paragraphs 72-73
Paragraphs 72 and 73 are paragraphs in the pleading of the allegation that the hospital’s breach of duty and Dr Malecky’s breach of duty “caused or contributed to cause the plaintiff injury, loss and damage”. I observe that the pleading does not make any allegation in relation to the claim against the first defendant that any entity other than TCH caused loss to the plaintiff. Specifically, notwithstanding an apparent distinction drawn between the hospital and employees of Therapy ACT, there is no allegation of causation in relation to employees of Therapy ACT. That may be a defect in the pleadings or I may have failed to appreciate some subtlety in the pleadings which avoids that apparent problem.
The point that the defendants make about the pleading of causation is that there is no attribution of any of the extensive particulars of injury, loss and damage to any of the particular breaches of duty. In that respect the pleading is in a common form. The issue that is raised is whether particulars should be required of each injury alleged to have arisen from each particular of negligence arising in relation to the hospital after July 2007 and in relation to Dr Malecky after September 2007. The question of causation is likely in this case to be a difficult one. The plaintiff was born with Down syndrome and a cardiac anomaly. She then developed necrotising enterocolitis and bowel perforation in the days after her birth. Her treatment in that period is subject to specific claims of negligence. There is then the second aspect of treatment in relation to her feeding difficulties which is the subject of the second area of alleged negligence. The particulars of injury loss and damage are extensive including: (b) brain damage, (c) feeding intolerance, (e) prolonged tube feeding, (h) oral hypersensitivity, (j) feeding aversion, (k) poor growth, (l) dental decay, (n) global development delay, (o) delayed speech development, (p) delayed language development, (q) impaired intellectual development and (r) impaired socialisation. It is not clear whether, as a matter of fact, the issue of attribution of any of the types of injury loss and damage to a particular stage of the treatment will be problematic. While evidence relating to liability has been served by all parties, the plaintiff has not yet served her evidence on damages and it is only after that occurs that the defendants will be required to put on their evidence. The extensive evidence going to liability was not put before me for the purposes of the present application. It is not possible in those circumstances to determine, in a practical sense, whether and to what extent the first and second defendants are prejudiced by the absence of any apportionment of types of injury, loss and damage to particular periods in the plaintiff’s care. In those circumstances, I do not consider that an armchair exercise should be required to be undertaken. It is conceivable that there will be some real practical difficulty or uncertainty about the plaintiff’s claims in the light of the expert evidence but that cannot be determined on the material before me.
Variation of directions
At the conclusion of the submissions, counsel for the plaintiff sought a variation of the directions made by the Court on 22 June 2018. This was not the subject of any formal application and appears to have been raised informally with the other parties the day before. It will be recalled that those directions were made by consent and required the plaintiff, but not the defendants, to serve expert evidence going to quantum of damages prior to the conduct of the mediation. Counsel for the plaintiff submitted that, in the light of the date agreed by the parties for the conduct of the mediation, there should be an adjustment to the timetable in the orders so as to regularise the date for the mediation and the steps required prior to that date. That change was uncontroversial so far as each of the defendants was concerned. The other change was that counsel proposed that the defendants should be required to serve their expert material going to quantum of damages prior to the mediation. He made that submission on the basis that he was aware that his client had been sent to see a rehabilitation specialist on a number of occasions in Melbourne and that arrangements had been made by the first and second defendants for an assessment by an occupational therapist. In those circumstances, he submitted that it was appropriate that the defendants be required to serve their quantum material. Counsel for the first and second defendants opposed the making of that direction. He pointed to the fact that it was inconsistent with the earlier orders and that the first and second defendants would wish to make a decision about what expert material to serve in the light of the material served by the plaintiff. Counsel for the third defendant indicated that the third defendant had taken no steps to arrange expert evidence in relation to quantum because the orders entitled her client to see the evidence put on by the plaintiff before being required to put on any evidence in response.
In my view, it is not appropriate to vary the consent orders in so far as those variations were controversial. That is because the orders were made by consent in order to prepare the matter for a mediation. The adoption of that course involved a compromise about the extent of evidence that would be required to be prepared prior to the mediation occurring. As I have pointed out above, it reflected a balance between delay and expense on the one hand and the adequacy of evidence available to permit a mediation to have maximum prospects of success.
The fallback position of the plaintiff was that there should be a direction that the first and second defendants serve the material that they have, or will have, from the rehabilitation specialist and the occupational therapist. Once again, I do not consider that a departure from the consent orders is appropriate. Those orders permit the defendants to see the material which is put on by the plaintiff before making a decision on what they will serve. That the first and second defendants have taken steps to obtain evidence does not appear to me to be sufficient reason to depart from the consent orders earlier made. Plainly enough, this leaves open the possibility that the first and second defendants may choose to serve evidence going to quantum in advance of the mediation if they consider it appropriate in order to maximise the prospects of success of the mediation, but they will not be compelled to do so by a variation of the orders.
Costs
The plaintiff and first and second defendants submitted that costs should follow the event. The plaintiff pointed in particular to the letter which had been written on her behalf contending that it was inappropriate to pursue the claim for particulars at this stage. Although I will make orders requiring the provision of some particulars, I have refused most aspects of the application. In that sense the defendants have been largely unsuccessful. Balancing those competing considerations, in my view, the appropriate order is that the costs of the application be the plaintiff’s costs in the cause.
35. The only reason that the third defendant had been required to participate at all in the proceedings yesterday was because he opposed the variation of the directions that would have compelled him to file his evidence in relation to damages prior to the mediation. In circumstances where that direction was refused, he sought his costs of attending. I think he is entitled to his costs because in the absence of the proposed variation that was informally raised shortly prior to the hearing he would not have been required to attend. I will order that the plaintiff pay the third defendant’s costs of the hearing on 23 August 2018.
Orders
The orders of the Court are:
1. The plaintiff is required within seven days to provide further particulars as follows:
67(t):
(a) Who on behalf of the first defendant recommended thin fluids and a Haberman feeder?
(b) When is it alleged that the first defendant recommended thin fluids and a Haberman feeder?
67(v):
(a) What were the interventions that the plaintiff says were “appropriate” and ought to have been, but were not, undertaken?
(b) When should those interventions have been undertaken?
2. The further particulars must be settled by counsel.
3. The Amended Application in Proceedings dated 30 July 2018 is otherwise dismissed.
4. Orders 1-3 made by consent on 22 June 2018 are discharged and the following orders made:
1. Plaintiff to serve quantum evidence by 15 October 2018.
2. Plaintiff to serve any evidence in reply by 9 November 2018.
3. The parties are to attend mediation by the end of November 2018.
4. The matter is listed for hearing of the application dated 26 April 2018 and for further directions on 7 December 2018.
5. The costs of the Application in Proceeding dated 12 July 2018 and the Amended Application in Proceedings dated 30 July 2018 are the plaintiff’s costs in the cause.
6. The plaintiff is to pay the third defendant’s costs of the hearing on 23 August 2018 but such costs may not be assessed until the proceedings end.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 25 September 2018 |