Gardiner v Forsyth
[2020] VCC 413
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04396
| ANDREW GARDINER | Plaintiff |
| v | |
| ROBERT FORSYTH | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2020 | |
DATE OF RULING: | 8 April 2020 | |
CASE MAY BE CITED AS: | Gardiner v Forsyth | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 413 | |
REASONS FOR RULING
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Subject: AMENDMENT TO PLEADINGS
Catchwords: Application for leave to file and serve amended Statement of Claim – Medical negligence – application made late in the proceedings – whether irremediable unfair prejudice to defendant – adequacy of explanation for delay – application granted
Ruling: The plaintiff is granted leave to amend Statement of Claim
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B House | Maxiom Injury Lawyers (as agent for Monaco Lawyers) |
For the Defendant | Mr A Stevens, Solicitor | Avant Law |
HER HONOUR:
1 The plaintiff in this matter seeks damages against urologist, Dr Robert Forsyth, for treatment provided to him in November 2016. The plaintiff underwent gastric sleeve surgery for management of obesity on 27 September 2016 and was discharged three days later. He was readmitted to hospital on 6 November 2016 with left-side abdominal pain. Following a CT scan the plaintiff was diagnosed with suffering a left ureteric calculus. As part of the treatment, the plaintiff was prescribed Naproxen SR 1000 and Endone 5 milligrams. In early to mid-December the plaintiff began to feel unwell and, on 15 December 2016, following a CT scan, was diagnosed with a leak from the staple line of the gastric sleeve gastrectomy. The plaintiff seeks damages for injuries sustained consequent upon development of the leak, which he alleges arose as a consequence of negligent treatment by the defendant.
2 This is an application for leave by the plaintiff to amend his Statement of Claim in the form proposed in a document dated 4 February 2020.
3 The plaintiff’s Writ and Statement of Claim were issued on 4 October 2018. The matter had been listed for trial on 12 March 2020 but this date was adjourned for reasons unrelated to the proposed Amended Statement of Claim.
4 The defendant opposes the proposed Amended Statement of Claim primarily on the ground that it will be prejudiced, and that confidence in the administration of justice would be undermined if permission was granted so late into the proceedings without adequate excuse.
5 Separate to his application to amend the Statement of Claim, the plaintiff also seeks leave of the Court to file and serve additional expert medical material, specifically, an opinion of urologist, Professor Anthony Costello, contained in a report dated 3 March 2020. However, it was conceded by the defendant’s solicitor that its opposition to the late service of that report would fall away, in the event that the plaintiff was granted leave to amend its Statement of Claim. That is because an amendment to the proceedings results in an adjournment and revised timetable, and that such timetable would accommodate the further service of expert material from both sides. Therefore, this ruling deals only with the plaintiff’s application to amend his Statement of Claim.
Background
6 In support of this application, the plaintiff’s solicitor, Ms Nicola Jandura, who is located in Sydney, affirmed an affidavit dated 30 March 2020. This affidavit was ordered to be filed and served by 26 March 2020. However, it was not filed or served until late in the afternoon on 1 April 2020. Notwithstanding such late service, the first defendant’s solicitor, Mr Adam Stevens, indicated that he was prepared to proceed with the application on 2 April 2020, and did not require an adjournment to respond.
7 By way of background, I note that in 2019, his Honour Judge Saccardo case managed this proceeding. On 24 April 2019, his Honour Judge Saccardo ordered the parties to exchange medical and expert reports concerning damages and liability by 11 September 2019. I understand that in accordance with this order, the defendant served reports from Associate Professor Web and Professor Bolton on 29 July 2019.
8 On 4 October 2019, the plaintiff’s solicitors served reports from general surgeon, Professor Morris, and gastroenterologist, Dr Vickers.
9 At a Directions Hearing on 9 October 2019, in response to the late service of expert reports by the plaintiff’s solicitor, his Honour Judge Saccardo ordered that the defendant be permitted to serve additional expert material by 20 December 2019. Such additional material was served by the defendant on 10 December 2019.
10 In paragraph 19 of Ms Jandura’s affidavit, she stated:
“Prior to the service of the enterity (sic) of the Defendant’s expert liability material, it was the view of my firm that, given the matter involved a post-surgical complication following bariatric surgery that it was sufficient to rely upon Professor Morris and Dr Vickers to establish breach of duty and causation.”
11 Ms Jandura then stated that on 11 November 2019 she was advised by counsel that the plaintiff should obtain an expert opinion from a urologist.
12 Ms Jandura stated on 25 November 2019 that her firm then sought an opinion from urologist, Professor Costello. His report was received by the plaintiff’s solicitors on 4 March 2020. That report was then served on the defendant on 26 March 2020.
13 I accept Mr Steven’s submission that paragraph 19 of Ms Jandura’s affidavit is misleading given Professor Costello was retained prior to the plaintiff’s solicitors receiving the entirety of the defendant’s expert liability material. I consider the overriding reason the plaintiff’s solicitor sought the opinion from Professor Costello in November 2019 was the advice received by counsel.
14 It is also apparent that the proposed Amended Statement of Claim was prepared by counsel prior to the opinion of Professor Costello being received. Mr House, appearing for the plaintiff, submitted that the proposed amendments did not seek to raise any new issues, but instead are simply an attempt to develop the plaintiff’s case more fulsomely, by way of pleading specifically the plaintiff’s allegations regarding the standard of care of the defendant.
15 On the most generous view to the plaintiff in this application, I may accept that this could be the case in relation to proposed paragraphs 9A, 9B, 9E, and 17A. However, I am less persuaded of this submission regarding proposed paragraphs 9C (a new pleading in respect of failure to seek advice from a bariatric and/or gastric surgeon), and 9D (a new pleading in respect of failure to advise the plaintiff). I also note that seven additional particulars of injury are included in the proposed Statement of Claim.
Defendant’s opposition to the late amendment
16 Mr Stevens expressed extreme frustration with the late timing of the proposed Statement of Claim, especially in circumstances where it was submitted that there was no adequate explanation, save for apparent incompetence on the part of the plaintiff’s solicitors. It was submitted that the second defendant had been anxious about the claim against him whilst it remained on foot. It was further submitted there would be significant cost consequences and unavoidable delay suffered by the defendant if the amendment was permitted.
17 However the defendant’s solicitor conceded that there was no evidence of actual irremediable prejudice to the defendant in the event the amendment was permitted.
Principles relevant to a late application to amend a pleading
18 As enunciated by the High Court of Australia in Aon Risk Services Australia Limited v Australian National University,[1] there are a number of factors which a Court should consider in deciding whether to grant leave for a pleading to be amended. These were summarised by Justice J Forrest in Ultra Thoroughbred Racing v Those Certain Underwriters & Ors,[2] to include the following considerations:
[1](2009) 239 CLR 175
[2][2011] VSC 370
“a) whether there will be a substantial delay caused by the amendment;
b) the extent of any wasted costs;
c) whether there is an irreparable element of unfair prejudice caused by the amendment;
d) concerns of case management arising from the stage in the proceeding when the amendment is sought;
e) whether the grant of the amendment will lessen public confidence in the judicial system; and
f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.”[3]
[3][2011] VSC 370 at [8]
19 The Court of Appeal recently considered such principles in the decision of Billington v Sussan Corporation Australia.[4] Here, the Court refused an appeal as to a decision by the trial judge to refuse an amendment to the Statement of Claim, which was served on the defendant the day before trial. The plaintiff in that case sought damages against his employer for psychiatric injuries suffered by him at a training event. The plaintiff alleged that at this event, he was subjected to embarrassment and humiliation when obligated to dress up, dance and sing on stage with a Kylie Minogue impersonator. The plaintiff claimed that his employer was negligent for this. In the proposed Amended Statement of Claim, the plaintiff sought, for the first time to claim damages in battery, for which it claimed the defendant was vicariously liable. The Court of Appeal upheld the trial judge’s decision to refuse the late amendment, in part, as it was satisfied that the proposed amendment would involve irremediable unfair prejudice to the defendant.
[4][2020] VSCA 12
20 These authorities are a reminder of the balancing exercise which the Court must undertake in considering whether to grant leave to amend. The overwhelming consideration for the Court is “what do the interests of justice dictate?”[5]
[5][2011] VSC 370 at [9]
21 I consider that a prudent and reasonable solicitor in a medical negligence case, such as this, would ordinarily obtain expert evidence prior to the service of a Writ or, at the latest, prior to drawing the Statement of Claim to ensure that the plaintiff’s claim was most fulsomely made out.
22 There is no satisfactory explanation by Ms Jandura as to why expert medical opinions were not sought in this matter earlier in time. This failure has meant that the pleadings now require substantial amendment, some 16 months after the Statement of Claim was first served.
23 I am conscious that permitting the plaintiff leave to amend his Statement of Claim at this time in part risks undermining confidence in the administration of justice and, in particular, the case management of this Court’s Medical List. However, despite the frustrations I have regarding the conduct of the plaintiff’s solicitors in their ongoing apparent failure to have regard to Court orders, as well as the obligations imposed by the Civil Procedure Act 2010, my overwhelming consideration in this application is what do the interests of justice dictate?
24 Notwithstanding the obvious failures by the plaintiff’s solicitors to prepare this case adequately, in a timely manner, and in accordance with the expectations of the Judges who case manage this specialist Medical List, I accept that if I refuse the plaintiff’s application to amend his Statement of Claim, the plaintiff would suffer overwhelming prejudice in running his case to trial. I consider that justice demands that the plaintiff not be shut out from doing so.
25 I also consider that the consequential prejudice suffered by the defendant can, partly, be remedied by a costs order. As foreshadowed by Mr Stevens at the hearing of this application, these costs will likely be significant. This is so as the defendant will need to amend its Defence, possibly interrogate the plaintiff, and seek further expert opinion addressing the matters raised in the Amended Statement of Claim.
26 For the reasons outlined above, I am persuaded to grant the plaintiff leave to amend his Statement of Claim in the form attached to Exhibit NSJ-1.
27 I require a copy of this ruling to be served personally on the plaintiff, so that he is aware of what has occurred and the concerns that the Court has regarding the conduct of his solicitors in this matter.
28 I will now hear from the parties in respect of costs following from this order, and the timetable that should be set in this matter.
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