Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd

[2004] FCA 94

FEDERAL COURT OF AUSTRALIA

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 94

KAREN CAREY-HAZELL v GETZ BROS AND CO (AUST) PTY LTD, PETER THOMPSON and TREVOR NICHOLLS
W75 OF 2001

KIEFEL J
PERTH
9 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS AND CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

9 FEBRUARY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application for leave to further amend the Statement of Claim is refused.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS AND CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:	KIEFEL J
DATE:	9 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant seeks leave to further amend her statement of claim.  It is the first day of trial.  She seeks to allege against the second respondent that he breached his duty to her and was negligent in the manner in which he managed her anticoagulant medication post-operatively.  There is no doubt that if the amendment was allowed, the trial would have to be adjourned to enable the second respondent to investigate the matter.  The first question, however, is whether the amendment is one which requires this further investigation and whether the amendment could be made out on the present state of the applicant’s evidence.

2. The allegation as pleaded would seem to rely only upon the fact of there having been thromboembolisms to make out a case of negligence in this respect.  Of itself this could not be a sufficient basis for liability.  The terms of the proposed amendment strongly suggest to me a fishing expedition, unless there was some reasonably clear evidence that the actions or inaction on the part of the second respondent were a cause of the applicant’s blood clotting.    I shall assume for present purposes that the second respondent was largely responsible for the dosage of the medication that the applicant received, although I appreciate that the second respondent would take issue with this and would consider joining other doctors involved if the amendment were allowed.

3. The fact that the applicant’s blood was not resistant to the development of thrombus is not a new fact in this trial, as the terms of the applicant’s proposed plea now shows.  Two observations to this effect have been made by the respondents’ expert witnesses and the latter of them is now said to be the basis for the amendment.  Professor Hughes made such an observation in July 2002 and Dr Hirsh in December 2003.  It also seems to be uncontested that the applicant’s INR levels dropped at various points, although there may be some issue about the extent of the range which was necessary to be maintained.

4. For the proposed allegation to succeed, it would be necessary for the applicant to show that the second respondent could have taken some action which would have had a different outcome for the applicant’s state; for example, as the applicant’s senior counsel said in submissions on this motion, simply by altering the dosage.  I do not understand there to be such evidence.  Indeed the evidence, such as it is, does not point to a cause for the anticoagulants administered not being effective.  It is possible, I infer from the medical reports filed to date and upon which reliance would be had, that different people react in different ways and that is why they have to be regularly tested to see what is occurring.

5. In any event, there has been a considerable time for the applicant’s experts to have pointed to the dosages administered as a cause.  None of the applicant’s experts have done so and I have no affidavit to explain whether some expert to be called for the applicant will take up this issue, maintain the proposed allegation and supply the additional evidence which I consider to be necessary.  In these circumstances I infer that the amendment does not have any substantial prospects of success on the evidence which is proposed to be given.  For those reasons I decline leave to further amend. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel .

Associate:

Dated:            9 February 2004

Counsel for the Applicant:	Mr BHK Donovan QC with Mr CP Shanahan
Solicitor for the Applicant:	Wojtowicz Kelly
Counsel for the First Respondent:	Mr NC Hutley SC with Mr D Villa
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second and Third Respondents:	Mr WS Martin QC with Mr AS Derrick
Solicitor for the Second and Third Respondents:	Clayton Utz
Date of Hearing:	9 February 2004
Date of Judgment:	9 February 2004