Bugden v The Congregation of Religious Sisters of Charity of Australia

[2020] NSWSC 493

Supreme Court

New South Wales

Medium Neutral Citation:

Bugden v The Congregation of Religious Sisters of Charity of Australia [2020] NSWSC 493

Hearing dates:

8 April 2020

Date of orders:

05 May 2020

Decision date:

05 May 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

THE COURT ORDERS THAT:

 

(1) Leave is granted to the second defendant pursuant to UCPR 31.28 to rely on the report of Associate Professor Mark Adams dated 30 October 2018.

(2) Pursuant to UCPR 31.24, the Court directs that there be a single joint liability conclave of cardiology and neurology experts at the hearing of the plaintiff’s statement of claim in proceedings 2014/191081 and 2014/190993.

(3) There is no order as to costs.

Catchwords:

CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 31.24 – Conference between expert witnesses – Whether to direct that there be a single or separate joint liability conclaves split by expertise

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 31.24, 31.28

Category:

Procedural and other rulings

Parties:

Fiona Bugden (Plaintiff)
The Congregation of Religious Sisters of Charity of Australia (Second Defendant)
Murrumbidgee Local Health District (Third Defendant)
Associate Professor Michael McCready (Fourth Defendant)
St Vincent’s Hospital Sydney Limited (Fifth Defendant)

Representation:

Counsel:
JA Hillier (Plaintiff)
D Lloyd (Second Defendant)

  Solicitors:
Commins Hendriks (Plaintiff)
Kennedys (Second Defendant)

File Number(s):

2014/190993

Publication restriction:

Nil

Judgment

1. HER HONOUR: By notice of motion filed 3 February 2020, the second defendant seeks firstly, an order pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that leave be granted to rely on the report of Associate Professor Mark Adams dated 30 October 2018; secondly, in the event that order 1 is made, an order pursuant to UCPR 31.24 that Associate Professor Adams participate in a liability joint conference (neurology) to comment on the discrete issue of administration of aspirin in the context of an operative procedure in 2011.

2. The plaintiff is Fiona Bugden. The first defendant has been released by the plaintiff. The second defendant is the Congregation of Religious Sisters of Charity of Australia (the “Sisters of Charity”). The third defendant is Murrumbidgee Local Health District. The fourth defendant, also released by the plaintiff for present purposes, was Associate Professor Michael McCready. The fifth defendant is St Vincent’s Hospital Sydney Limited. The plaintiff relied upon the affidavit of Courtney Hunter dated 9 March 2020. The second defendant relied upon the affidavit of Beth O’Connor dated 3 February 2020.

Background

3. The claim against the second defendant can be shortly stated for present purposes. The plaintiff was married to Gregory Bugden. Mr Bugden was admitted to the hospital run by the Sisters of Charity under the care of Dr Paul Jansz. As stated, Dr Jansz was the first defendant in the proceedings, but has been released by the plaintiff.

4. Mr Bugden was admitted to St Vincent’s Hospital for four coronary artery grafts. The plaintiff alleges that, while her husband was in hospital for these procedures, he suffered a stroke and consequently developed depression. Mr Bugden was later transferred to Wagga Wagga Base Hospital, from which he was discharged on 12 August 2011. He committed suicide on 3 November 2011.

5. The plaintiff’s case is that Mr Bugden’s suicide occurred as a direct result of his depression.

6. The plaintiff’s claims are made pursuant to the Compensation to Relatives Act 1897 (NSW) and for nervous shock. In order for the plaintiff to succeed in her claim, it is necessary for her to establish that the Sisters of Charity were negligent in the treatment of Mr Bugden, and that negligence was a necessary condition of the loss she has suffered arising from Mr Budgen’s suicide.

7. A key allegation of negligence made by the plaintiff against the Sisters of Charity is that they failed to administer aspirin to Mr Bugden between 27 June and 29 June 2011. The plaintiff makes other allegations of negligence against the Sisters of Charity which are not necessary to address for present purposes.

8. The plaintiff has released Associate Professor McCready. The allegations that were made against him in the pleadings include a failure to administer and/or prescribe and/or recommend aspirin to the deceased between 31 May 2 and 23 June 2011 and the failure to discuss with him the benefit of taking aspirin during that period.

9. The allegations made by the plaintiff in the further amended statement of claim against the Sisters of Charity and Associate Professor McCready overlap to a significant degree, in the sense that they both involve an allegation that there was a failure to administer and/or recommend that aspirin be administered to the deceased, albeit in slightly different periods of time. A key aspect of liability in the case is the question of whether the alleged failure to administer aspirin was a necessary condition of the harm ultimately suffered by the plaintiff, caused by the deceased’s suicide.

10. The plaintiff’s claim has been set down for hearing on 14 September 2020.

Service of the report of Associate Professor Mark Adams

11. In a report dated 30 October 2019, Associate Professor Adams, a cardiologist, commented upon the use of aspirin both before and after Mr Bugden’s surgery. There was a delay in serving this report on the plaintiff. The second defendant’s explanation for the delay is that the report was originally obtained and served by Associate Professor McCready’s solicitors.

12. In his report dated 7 December 2018, Professor Craig Anderson, a general vascular and geriatric neurologist retained by the plaintiff, commented upon Associate Professor Adams’ opinion. Professor Anderson made reference to the opinions of Associate Professor Adams, including the following:

“Dr Adams indicates that there was considerable uncertainty amongst medical practitoners,that is reflected in several national/international best practice guidelines, as to the most appropriate use of aspirin before and after cardiac surgery in 2011. As such, these guidelines generally made recommendations for aspirin to be ceased several (2-10) days before elective surgery to reduce the risk of perioperative bleeding. Conversely, however, in the event of a patient requiring urgent cardiac surgery for an acute coronary syndrome, it was considered in appropriate to delay this potentially life-saving intervention for an ‘off-aspirin’ period, as it was considered that the benefits of such early surgery outweighed the risks of serious bleeding.

…

Dr Adams provides a strong argument that the ‘potency’ of Aspirin is mild. While chronic use of Aspirin has been proven to prevent major cardiovascular events in the long term in people with established cardiovascular disease, its short term use, such as over a few days in the context of cardiac surgery, is unlikely to have a strong effect on the mechanism of a stroke. Thus, on the balance of probabilities, peri-operative use of Aspirin would not have prevented the stroke in Mr Bugden.”

13. The plaintiff’s solicitors were already in possession of the report of Associate Professor Adams as it had been served on them by the solicitors for the fourth defendant. As previously stated, the plaintiff has discontinued the proceedings against the fourth defendant. Due to an oversight, solicitors for the second defendant failed to re-serve this report on the plaintiff.

14. The plaintiff no longer opposes the service of Associate Professor Adams’ report.

15. By email dated 15 April 2020, counsel for the plaintiff advised that she will consent to the following orders being made:

“1. Pursuant to rule 31.28 of the UCPR the Second Defendant be granted leave to rely on the report of Associate Professor Mark Adams, dated 30 October 2018.

2.   The remaining liability joint conferences are to take place with the following make up:

Neurologists

i.   Dr Watson (neurologist)

ii.   Professor Anderson (neurologist)

Cardiologists

i.   Associate Professor Richards (cardiologist)

ii.   Dr Rosalion (cardiothoracic surgeon)

iii.   Associate Professor Adams (cardiologist)

3.   No order as to costs.”

The liability joint conference(s)

16. Part 31.24 of the Uniform Civil Procedure Rules 2005 (NSW) deals with conferences between expert witnesses. It reads:

“31.24 Conference between expert witnesses

(cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)

(1) The court may direct expert witnesses—

(a) to confer, either generally or in relation to specified matters, and

(b) to endeavour to reach agreement on any matters in issue, and

(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d) to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.

(2) The court may direct that a conference be held—

(a) with or without the attendance of the parties affected or their legal representatives, or

(b) with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or

(c) with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

....”

17. The issue now to be decided is whether there should be one or two separate conclaves, as well as what order should be made as to costs.

The plaintiff’s submissions

18. The plaintiff submitted that instead of one large liability joint conference, there should be two liability joint conferences as follows:

“Neurologists

iii.   Dr Watson (neurologist)

iv.   Professor Anderson (neurologist)

Cardiologists

iv.   Associate Professor Richards (cardiologist)

v.   Dr Rosalion (cardiothoracic surgeon)

vi.   Associate Professor Adams (cardiologist)”

19. At the hearing on 8 April 2020, counsel for the plaintiff inadvertently failed to refer the Court to Dr Rosalion (cardiothoracic surgeon), who has also provided an opinion on behalf of the plaintiff. Counsel for the second defendant does not object to Dr Rosalion attending a joint conference.

20. The plaintiff submitted that two joint conferences are preferable to one for the following reasons.

21. Firstly, while the second defendant’s position is that the comment required from cardiologist Associate Professor Adams relates only to the “discrete issues of the administration of aspirin”, the plaintiff’s cardiology experts’ reports go beyond these issues. By way of example, Associate Professor Richards and Dr Rosalion also opine upon the failure by the second defendant to administer heparin and the causative effects of that failure. The failure to administer the heparin is another allegation of negligence against the second defendant.

22. Secondly, the plaintiff submitted that it will be more cost effective to have joint conferences where experts of the same relevant expertise address all of the questions put to them. A single joint conference will see the parties charged for experts’ time where they are sitting idly while the others comment on issues outside their field of expertise. With two joint conferences, there is also no need for the parties to bear the cost of a facilitator.

23. Finally, the plaintiff submitted that a single joint conclave is inefficient. In addition to experts remaining silent for longer periods while others speak, it will be more likely for experts in such a context to stray into giving evidence outside their areas of expertise, adding to objections, delays and wasted time. It is also difficult to arrange for multiple experts to forego patient commitments and convene at the same time, and this difficulty increases with the number of experts empanelled. The plaintiff submitted that after separate joint conclaves, a report can be produced to assist the Court to determine the remaining issues in dispute. This cannot be done after a single larger joint conference, in which different questions are put to experts with differing areas of expertise, and/or one expert is only required to comment on one discrete issue.

The second defendant’s submissions

24. The second defendant maintains its position articulated at the hearing of the motion that there should be one liability conclave of experts for the following reasons.

25. Firstly, the second defendant argued that the plaintiff has made opportunistic use of the word “neurology” in the notice of motion to justify separating the expert joint conclaves into one which discretely concerns neurology. The second defendant submitted that it was the plaintiff who described the conference as a neurology conference in correspondence, and that the second defendant simply mirrored that language (CB 98,138-139).

26. The second defendant submitted that it plainly did not intend either Associate Professor Richards or Dr Rosalion to be excluded from the conclave. The plaintiff did not at any time raise that issue, but was intent on pursuing her opposition to the attendance of Associate Professor Adams because his report had been served late. In fact, the first time that the plaintiff ever raised whether Associate Professor Richards should attend a conclave was in [33](d) of the plaintiff’s submissions, served the day before the hearing of the motion. Upon the issue being raised at the hearing, the second defendant immediately accepted that it was obvious that he should attend.

27. During the hearing of the motion, the plaintiff did not raise the issue of whether Dr Rosalion should attend. Now that the issue has been raised, the second defendant also accepts that it is obvious that he should attend the conclave.

28. Furthermore, the second defendant submitted that there should be one liability conclave attended by the neurologists and the cardiologists. It does not matter whether it is called a neurology/cardiology conclave or simply a liability conclave, if a title is necessary. The second defendant submitted that it is not beyond counsel for the parties, or the experts themselves, to limit the experts to answering questions within their expertise. In this case, having separate conclaves is likely to make the job of the trial judge harder by having separate joint reports addressing overlapping issues.

Resolution

29. As submitted by the second defendant, the experts rely upon each other’s reports and address overlapping issues. It would be difficult, and inefficient, for a trial judge to deal in separate reports addressing overlapping issues. In the joint conclave, specialists will choose to answer the questions that fall within their speciality. As such, it is my view that the neurologists and the cardiologists should participate in a single joint conclave.

Costs

The plaintiff’s submissions

30. The plaintiff submitted that the requirement to seek leave pursuant to UCPR 31.28 arose as a consequence of an oversight by the second defendant’s solicitor to serve the report of Associate Professor Adams in accordance with the orders of the Court. This oversight had nothing to do with the plaintiff.

31. The plaintiff submitted that in circumstances where much of the dispute has been able to be resolved between the parties, there should be no order as to costs.

The second defendant’s submissions

32. The second defendant has consented to an order that there be no order as to the costs of the motion. The second defendant submitted that its consent was generous, given that the plaintiff capitulated on the sole issue which founded her opposition to the motion. However, the second defendant submitted that the plaintiff should bear all of the costs associated with the supplementary round of submissions. If the plaintiff wished to agitate the issues raised in the supplementary submissions, she should have done so clearly in correspondence and submissions before the motion. Instead, she raised those issues belatedly, which contributed to unnecessary expenditure. In any event, the second defendant submitted that the plaintiff’s position with respect to the conclaves is without merit.

Resolution

33. Costs are discretionary. Costs usually follow the event. The legal representatives for the second defendant overlooked the service of the report of Associate Professor Adams, and required leave to rely on the report. Ultimately, the plaintiff consented to this order. The legal representatives for the plaintiff overlooked having Dr Rosalion included in the conclave and opposed the service of the report of Associate Professor Adams. Much of the Court’s time at the hearing was devoted to arguing this issue. As such, it is my view that the appropriate order is that there be no order as to costs.

THE COURT ORDERS THAT:

1. Leave is granted to the second defendant pursuant to UCPR 31.28 to rely on the report of Associate Professor Mark Adams dated 30 October 2018.

2. Pursuant to UCPR 31.24, the Court directs that there be a single joint liability conclave of cardiology and neurology experts at the hearing of the plaintiff’s statement of claim in proceedings 2014/191081 and 2014/190993.

3. There is no order as to costs.

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Decision last updated: 05 May 2020