Breheny v Lachlan Health Service

[2001] NSWSC 186

CITATION:	Breheny v Lachlan Health Service & Ors [2001] NSWSC 186
FILE NUMBER(S):	SC 21200 of 1995
HEARING DATE(S):	16/03/2001
JUDGMENT DATE:	21 March 2001
PARTIES :	Christoper Breheny by his tutor Gary Breheny - Plaintiff Lachlan Health Service (formerly Lake Cargelligo Hospital) - 1st Defendant David John Cairncross - 2nd Defendant Gordon Vincent Oxenham - 3rd Defendant
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr O'Keefe - Plaintiff Mr S Kalfas - 2nd and 3rd Defendants
SOLICITORS:	Hunt & Hunt - Plaintiff Lynn Boyd - 2nd and 3rd Defendants
CATCHWORDS:	Professional Negligence List - Summary dismissal - no reasonable cause of action disclosed - non service of any expert report or other evidence in support of particulars of negligence.
LEGISLATION CITED:	Supreme Court Rules 1970
CASES CITED:	Rogers v Whitaker (1992) 175 CLR @ 479
DECISION:	Proceedings against second and third defendants are dismissed generally.

PROFESSIONAL NEGLIGENCE LIST

BELL J

Wednesday, 21 March, 2001

No 21200 of 1995 - Christopher BREHENY by his tutor Gary BREHENY v LACHLAN HEALTH SERVICE and ORS

JUDGMENT

1    HER HONOUR: The second and third defendants by Notice of Motion filed on 7 December 1998 seek an order that the claim brought by the plaintiff against each of them be struck out for want of prosecution. The power so to do is provided by Pt 33 r 6 of the Supreme Court Rules 1970 (“the SCR”). The motion was listed for hearing on 15 December 1998. On that occasion it was adjourned by consent to 26 February 1999. As at that date it appears that orders had been made for the administration of interrogatories and for the plaintiff to file a further amended statement of claim. In these circumstances the notice of motion was stood over generally with liberty to apply on seven days notice.

2    By letter dated 28 February 2001 the solicitor for the second and third defendants sought to have the motion listed for hearing on 9 March 2001 at a conference hearing. The matter came before me and I stood it over for hearing to 16 March 2001.

3 At the commencement of the hearing on 16 March Mr Kalfas, who appears on behalf of the second and third defendants, stated that although the motion was framed as one seeking to have the proceedings struck out for want of prosecution the defendants’ principal complaint was that there was no evidence to support the particulars of negligence alleged against them. The defendants sought to move for orders dismissing the proceedings generally pursuant to Pt 13 r 5 of the SCR. It was not submitted that this change in stance took the plaintiff by surprise or occasioned any prejudice to him.

4    The plaintiff brings claims in negligence as against each of the three defendants arising out of the circumstances of his birth. His mother while a patient at the Lake Cargellico Hospital was injected with a drug named syntometrine during labour. This is said to have resulted in tonic contractions of the uterus and foetal distress. It is contended that the plaintiff sustained brain damage before and/or after his birth and that he suffers from severe dementia and intellectual disability.

5    Proceedings against the Lake Cargellico Hospital (now the Lachlan Health Service) were commenced by Statement of Claim No 21200 of 1995. Separate proceedings were filed on 8 December 1995 against the second and third defendants (No 21286 of 1995). The two proceedings were consolidated by order of Registrar Irwin made on 8 May 1997.

6    The second and third defendants maintain that the plaintiff has failed to serve any expert evidence in support of any of the alleged particulars of negligence pleaded against them. It is conceded that expert evidence is not a prerequisite for bringing a successful claim in medical negligence; Rogers v Whitaker (1992) 175 CLR 479. However, as a practical matter this being a treatment (as distinct from advice) case, the second and third defendants contend that the absence of any expert evidence is a telling pointer to the absence of any reasonable basis for the claim now brought. Further, they submit that there is no other evidence from which an inference of negligence in any of the particulars alleged against them might be drawn.

7    I am invited to infer that the plaintiff’s failure, in the face of the numerous directions of the Court, to elicit any expert opinion critical of the conduct of either the second or third defendant leads to the view that no reasonable basis exists for the allegations of negligence pleaded against them. In this respect Mr Kalfas noted that the plaintiff has been directed by the Court on five separate occasions to serve expert evidence and has failed to do so in the case he brings against the second and third defendants.

8    Mr Kalfas called on a Notice to Produce which, relevantly, required the plaintiff to produce the following documents on the hearing of the motion:

· all correspondence between the plaintiff’s solicitors and Dr Farnsworth,

· report of Dr Farnsworth dated 23 February 1999.

9    The plaintiff claims client legal privilege in relation to the production of these documents.

10    In support of the motion Mr Kalfas read two affidavits sworn by Silvia Bastianon on 4 December 1998 and 9 March 2001. Annexure “G” to the latter affidavit is a supplementary report by Dr B Farnsworth dated 18 August 2000. That report is in these terms:

“Re: Christopher Breheny - supplementary report
At page 5 in my report of the 23rd February 1999 I wrote “It is also possible that damage may have occurred after delivery if hypoglycaemia was unrecognised and prolonged”. Certainly prolonged hypoglycaemia would have meant that there was a possibility of long term neurological damage. The correct treatment for hypoglycemia would have been a glucose drip.
Non-recognition of post-partum hypoglycemia would probably lead to further damage.”

11    The report of Dr B Farnsworth dated 23 February 1999 (Dr Farnsworth’s principal report) has not been served. I should note that on the plaintiff’s behalf the affidavit of his solicitor, Graham David Jones, sworn on 9 March 2001, was read. That contains an assertion that Dr Farnsworth’s principal report was to be served on the defendants. I was informed by Mr O’Keefe, who appears on behalf of the plaintiff, that the inclusion of reference to Dr Farnsworth’s principal report as one which had been (or was to be) served was a mistake.

12    Mr Kalfas submitted that privilege had been waived with respect to Dr Farnsworth’s principal report and the correspondence passing between the plaintiff’s solicitors and Dr Farnsworth. He referred me to Sevic v Roarty (1998) 44 NSWLR 287 per Powell JA at 301C. Mr O’Keefe submitted that no issue of waiver arose until the final hearing of the plaintiff’s claim. He noted that the supplementary report was an annexure to the affidavit of Ms Bastianon and had not been relied upon by the plaintiff in the evidence led on his behalf on the motion.

13    In the course of submissions Mr O’Keefe sought to rely on the contents of the supplementary report of Dr Farnsworth. He contended that when that report was read in conjunction with the report of Dr Lui of 27 August 1997 (which sets out the history of the plaintiff’s treatment immediately following birth including the time at which the second defendant commenced the administration of a dextrose infusion) provides a factual basis for the claim against the second and third defendants as to negligent post-partum care.

14    Mr Kalfas submitted that the plaintiff’s reliance on the contents of Dr Farnsworth’s supplementary report in this context was such as to make it unfair to the second and third defendants not to treat the privilege as having been waived.

15    In the view that I take of the matter it is not necessary for me to rule on the plaintiff’s claim for client legal privilege. Dr Farnsworth’s supplementary report does not seem to me to provide any support for any of the particulars of negligence alleged against the second or third defendants in the further further amended statement of claim.

16    Mr O’Keefe did not take issue with the proposition that no expert evidence had been served in support of the claims brought by the plaintiff against the second or third defendants save as to one matter. He submitted that by reference to material in Dr Lui’s report, I would infer that the plaintiff received his first treatment for hypoglycemia almost twenty four hours after his birth (the administration of a 10% dextrose infusion at 10.15 am by the second defendant). That information, in combination with the contents of the supplementary report of Dr Farnsworth, was said to provide a factual basis for the plaintiff’s claims as to negligent post partum care. I am not able to accept that is so.

17    Mr O’Keefe relied on one additional matter. He took me to the answers to interrogatories given by the second and third defendants which are annexed to the affidavit of Mr Jones to which I have already referred. In answer to questions 53 and following the second defendant gave an account that the plaintiff was in a posterior position which precluded delivery until he was rotated into an anterior position. The second defendant asserted that the rotation had been performed by the third defendant. The third defendant, in answer to questions 15 and following, stated that he had not rotated the plaintiff, nor was he present at any rotation of the plaintiff and that rotation was not necessary by the time he arrived. In Mr O’Keefe’s submission the answers given to interrogatories on the question of rotation of the plaintiff were arguably inconsistent. It was submitted that this material might afford some evidence in support of the particulars of negligence pleaded in paragraph 21(cc) & (ee) of the further further amended statement of claim as against the second defendant. Those particulars are pleaded as follows:

“(cc) Failing to deliver or arrange the delivery of the Plaintiff before he had undergone foetal distress to the point where he sustained brain damage and/or further brain damage;
…
(ee) Failing to avoid the Plaintiff suffering brain damage in the course of his mother’s labour and/or during delivery;”

18    It is appropriate at this juncture to set out something more of the history of the proceedings. On 14 April 1999 the plaintiff sought an order that the proceedings be transferred to the Professional Negligence List. On 2 July 1999 they were listed for conference hearing. On that occasion Sperling J granted the plaintiff leave to amend his statement of claim and to administer interrogatories in the expectation that he would then be in a position to complete the presentation of medical reports on the issue of liability. The plaintiff was directed to serve further expert reports on or before 22 October 1999.

19    The further amended statement of claim was filed on 22 July 1999.

20    The proceedings were before the Court for conference hearing on 5 November 1999. On that occasion orders were made in accordance with Short Minutes including that the defendants provide verified answers to interrogatories by 3 December 1999 and that the plaintiff serve all medical reports including expert reports by 29 January 2000. The defendants were to serve their medical reports by 26 March 2000. The timetable does not appear to have been strictly adhered to. The third defendant’s answers to interrogatories was served on the plaintiff’s solicitors on 20 January 2000. It is to be noted that in answer to interrogatory 31 the first defendant stated that a member of the hospital’s nursing staff, since deceased, had administered syntometrine in error. The first defendant by its amended defence to the further amended statement of claim admitted that the injection of syntometrine was in breach of its duty of care to the plaintiff but denied that any injury, loss or damage was occasioned by that breach.

21    The matter came before Sperling J for further conference hearing on 14 April 2000. The plaintiff was directed to serve witness statements containing the substance of all evidence intended to be adduced in relation to issues of liability and causation of damage within four weeks of that date. It is to be noted that the plaintiff was not then in the possession of the second defendant’s answers to interrogatories. Accordingly the significance of the point now taken was not apparent to those advising him. On 26 May 2000 the second defendant’s answers to interrogatories was served on the plaintiff’s solicitors. At that point any suggested inconsistency between the answers given by the second and third defendants touching on the question of the rotation of the plaintiff was known.

22    The matter came back before Sperling J on 28 July 2000 for conference hearing. On that occasion it appears that the plaintiff sought leave to file a second further amended statement of claim in order to include allegations of negligence in relation to the second and third defendants’ post partum care. It is to be noted that his Honour observed:

“The plaintiff does not as yet have to hand the medical evidence to support that claim. Logically the amendment should follow the report rather than the other way round”.

23    His Honour granted the plaintiff leave to amend the statement of claim within two weeks of 28 July 2000. He directed the plaintiff to serve further expert evidence in relation to liability and causation within 28 days of that date. The further further amended statement of claim was filed on 7 September 2000.

24    At the date of filing the further further statement of claim the plaintiff’s solicitors were aware of the suggested inconsistency in the answers to interrogatories given by the second and third defendants. The particulars of negligence pleaded against the second defendant do not, in terms, take up this matter. No expert report has been served supporting any claim against the second defendant upon the basis of the suggested inconsistency or otherwise expressing criticism of him over the manner of delivery of the plaintiff.

25    The only report served by the plaintiff in support of the particulars alleging negligent post partum care is the supplementary report of Dr Farnsworth to which I have already referred.

26    The events the subject of the proceedings took place over 29 years ago in December 1971. I consider there is force to the second and third defendants’ submission that, in the absence of evidence to the contrary, I might infer that the plaintiff has all the evidence as to the facts surrounding his birth as will ever be available. I accept that the failure (despite repeated directions) to serve any expert opinion critical of the conduct of either the second or the third defendant, in the absence of any other explanation, tends to support to the conclusion that there is no basis for the allegations of negligence made against them.

27    Mr O’Keefe submitted that the appropriate course was for me to stand the motion over for a period of eight weeks to permit the plaintiff to explore further the suggested inconsistency in answers to interrogatories (in so far as that might bear on the liability of the second defendant) and the question of the treatment of the plaintiff’s hypoglycaemia. In the event that the plaintiff failed to serve expert reports within that time Mr O’Keefe conceded that it would be appropriate for me to dismiss the proceedings as against the second and third defendants. I took this to be an acknowledgment that, absent the plaintiff obtaining expert opinion supporting the contentions advanced by Mr O’Keefe on the hearing of the motion, the claims as against the second and third defendants are futile.

28    Should the plaintiff be given a further period of weeks in which to put on expert reports in support of the claims made against the second and third defendants? This is not a case in which there has been a simple failure to comply with a timetable. The short history of the proceedings outlined above shows that those acting on the plaintiff’s behalf have not been wholly inactive in relation to the conduct of the proceedings. The statement of claim has been amended on more than one occasion. Lengthy interrogatories have been administered to both the second and third defendants. Expert reports have been obtained supporting other aspects of the plaintiff’s claim.

29    Significantly, the amendments to the statement of claim which followed the conference hearing on 14 April 2000 were made with a view to including allegations of negligence as to post partum care. Somewhat unusually, as Sperling J noted, leave was sought before expert reports to support the claims were to hand. It is not suggested that the plaintiff’s solicitors overlooked the question of the need to obtain expert evidence on the question of post partum care. Indeed the fact that Dr Farnsworth’s supplementary report was sought is inconsistent with such a view.

30    The significance of the suggested inconsistency in the answers given by the second and third defendants to interrogatories is, as I have noted, a matter which was not reflected in the particulars of negligence pleaded in the further further amended statement of claim. It is material of which the plaintiff has been aware since May 2000. Since that time it is apparent that those acting for him have been pursuing investigations on his behalf.

31    Correspondence annexed to the affidavit of Ms Bastianon sworn 9 March 2001 discloses that the second and third defendants have persistently signified their intention of seeking to restore their motion (seeking summary dismissal) to the list in the event that the plaintiff failed to discontinue the proceedings as against them. Despite this insistent pressure no reports in support of the claims made against them have been served. The request to have the motion listed at the conference hearing on 9 March was made on 28 February 2001. The motion was not heard until 16 March. There was no evidence that any expert had been retained, to advise on the issues identified by Mr O’Keefe, in the interim. I am of the view that to stand the motion over for a further period of weeks would be to simply occasion further costs.

32 Mr Kalfas drew attention to the scheme established by Part 14C of the SCR which would preclude the plaintiff (subject to the grant of leave) from commencing proceedings against the second and third defendants without filing expert reports. Pt 14C r 6 provides:

6(1) A person instituting a professional negligence claim (other than a claim against a barrister or a solicitor) must, unless the Court otherwise orders, file and serve, with the statement of claim or cross-claim instituting the professional negligence claim, an expert's report or experts' reports which includes or include an opinion supporting:
(a) breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence;
(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require); and
(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.
(2) Within 28 days from the date of an order being made under rule 3(3), the party making the professional negligence claim (other than a claim against a barrister or a solicitor) must file and serve such a report or reports on all other parties to the proceedings.
(3) In the case of a professional negligence claim against a barrister or a solicitor, the Court may order the plaintiff or cross-claimant to file and serve an expert's report or experts' reports supporting the claim.
(4) If a party fails to comply with subrule (1), (2) or (3), the Court may by order, on the application of a party or of its own motion strike out the whole or any part of the proceedings (including a cross-claim), as may be appropriate.

These proceedings were commenced prior to the introduction of Pt 14C into the SCR . However, the plaintiff’s failure to comply with directions as to the service of expert reports after the proceedings were transferred to the Professional Negligence List reinforces my view that it is not appropriate to grant Mr O’Keefe’s application to stand the motion over for a further period.

33 I consider that in the light of this history and the absence of any other explanation the proper conclusion to draw is that there is no basis for the allegations of negligence made against the second and third defendants and that the continuation of them would be futile. In these circumstances, I consider the appropriate course is to order in accordance with Pt 13 r 5(1)(a) of the SCR that the proceedings as against the second and third defendants be dismissed generally.

34    I will hear the parties on the question of costs.

ORDERS

The proceedings against second and third defendants are dismissed generally.

*****

Last Modified: 03/22/2001