Hamoodah v South Western Sydney Local Health District

[2021] NSWSC 162

Supreme Court

New South Wales

Medium Neutral Citation:

Hamoodah v South Western Sydney Local Health District [2021] NSWSC 162

Hearing dates:

26 February 2021

Date of orders:

3 March 2021

Decision date:

03 March 2021

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)   Extend up to and including 5 March 2021 the time for service of the plaintiff’s liability evidence, including the reports of Dr Linklater dated 29 November 2020 and 10 February 2021.

(2)   Reserve the costs that have been, or may be, occasioned or thrown away by reason of the plaintiff’s application.

(3)   Direct the parties to confer and provide me by no later than 12 March 2021 with a proposed timetable for further directions in accordance with the Practice Note for the preparation of the matter for hearing commencing on 10 July 2021.

(4)  Grant liberty to apply to me on 48 hours’ notice by arrangement with my Associate.

Catchwords:

CIVIL PROCEDURE – where plaintiff seeks order extending time for service of her liability evidence – where complicated surgery causes serious adverse consequences for plaintiff – where defendants deny liability – where defendants claim what occurred to plaintiff was materialisation of inherent risk of medical procedure and plaintiff conversely argues the defendants failed to take account of her anatomical idiosyncrasies when approaching the surgery – whether it would be just and reasonable to permit plaintiff at a relatively late stage to rely on expert report where it allegedly does not reflect current pleadings as set out in amended statement of claim and may result in disadvantage to defendants – where considerations of the dictates of justice pursuant to s 58 of the Civil Procedure Act and the overriding purpose of a just, quick and cheap resolution of the real issues in the proceedings permit the plaintiff to rely on expert evidence at a late stage – where there remains over four months until the hearing where matters can be explored – defendants not required to bear costs connected with disruption caused by plaintiff’s application

Legislation Cited:

Civil Procedure Act 2005

Category:

Procedural rulings

Parties:

Teriza Hamoodah (Plaintiff)
South Western Sydney Local Health District (First Defendant)
Raymond Chin (Second Defendant)

Representation:

Counsel:
D Graham SC with T Hackett (Plaintiff)
E Elbourne (Defendants)

Solicitors:
David Legal (Plaintiff)
Norton Rose Fulbright (Defendants)

File Number(s):

2018/326738

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By her notice of motion filed on 22 December 2020, Teriza Hamoodah seeks an order extending the time for service of her liability evidence until 1 December 2020. More particularly, Ms Hamoodah seeks an extension to that date for the service of a report from Dr James Linklater dated 29 November 2020. That application arises in the following circumstances.

2. On 24 April 2017, Ms Hamoodah was admitted for the total surgical replacement of her left hip, to be performed by Dr Raymond Chin at Fairfield Hospital. The proposed surgery was potentially more complicated than usual by reason of the fact that Ms Hamoodah had a Crowe IV congenital dislocation of the hip. It is alleged that in the course of an attempt by Dr Chin to affix the acetabular shell by drill and screw, the drill penetrated the inner wall of her pelvis causing injury to the iliac artery and vein. This caused a catastrophic haemorrhage and the surgery was aborted. It is unnecessary for present purposes to document the severe adverse consequences for Ms Hamoodah that followed.

3. These proceedings were commenced by statement of claim filed on 25 October 2018. An amended statement of claim was filed on 13 May 2020: see in particular paragraph 29 (j) to (v) of that document. The proceedings are listed for hearing commencing on 26 July 2021 with an estimate of 10 days. The defendants have denied liability. Dr Chin also maintains that as an orthopaedic surgeon he acted in a manner that was widely accepted by peer professional opinion as competent professional practice. In particular, Dr Chin says that it is reasonable to assume from other aspects of his intra-operative performance that the screw that caused Ms Hamoodah’s injury was accurately placed within what is referred to as “the safe zone”. Dr Chin further maintains that what occurred to Ms Hamoodah was the materialisation of an inherent risk of the procedure.

4. A post-operative CT scan of Ms Hamoodah’s left hip was performed on 2 September 2016 by Dr Chee Chung Hiew. A copy of his CT scan report of the same date was provided to Ms Hamoodah’s solicitors on 25 March 2020. Following a request made on the same day, the solicitors for the defendants provided a copy of the original CT scan imaging on 13 July 2020. The solicitors for Ms Hamoodah immediately wrote to Dr John Cummine and Dr Ronald Sekel asking each doctor to review the disc containing the CT scan and report back.

5. On 4 August 2020, Dr Cummine provided a supplementary report to Ms Hamoodah’s solicitors, which was served on the defendants’ solicitors on 12 August 2020. Dr Cummine referred to the radiology imaging report in the following relevant terms:

“Unfortunately, the report radiologist, Dr Chee Chung Hiew, appears to be unfamiliar with congenital dislocation of the hip… the clinical history included capital letters, DDH, which stand for developmental dysplasia of the hip… notwithstanding those letters, Dr Hiew, describes the left acetabulum as being markedly shallow, with little concavity, and the femoral head is described as enlocated… in fact, the femoral head is dislocated, and Dr Hiew is describing the false acetabulum… Dr Hiew does not describe it at all. In particular, the marked deficiencies in the medial wall of the true acetabulum are not identified.”

6. A few days later, Ms Hamoodah’s solicitors received advice from senior counsel that a radiologist should be retained to report on the CT scan and any other relevant imaging. Dr James Linklater was subsequently retained and on 29 November 2020 his report of that date was provided. It was served on the defendants’ solicitors on 1 December 2020.

7. The defendants’ response to Ms Hamoodah’s proposal to rely upon Dr Linklater’s report is that, having regard to the procedural history of the matter and the directions that have been made for the service and exchange of expert reports, helpfully summarised in the affidavit of Mary-Kate Rankin dated 25 February 2021, the report is in effect too late and “does not reflect the current pleadings as set out in the amended statement of claim filed 13 May 2020”. A letter from Norton Rose Fulbright dated 22 December 2020 to Ms Hamoodah’s solicitor described the position as follows:

“We refer to the above matter and report of Dr James Linklater dated 29 November 2020.

The evidence of Dr Linklater does not reflect the current pleadings as set out in the amended statement of claim filed 13 May 2020. Please provide us with the plaintiff’s proposed further amended statement of claim so we can obtain instructions.

Until the plaintiff confirms whether she intends to amend her current pleadings to reflect Dr Linklater’s evidence, the defendants are not in a position to confirm its [sic, their] position with respect to the report of Dr Linklater.”

8. Overtaking this correspondence and the filing of the notice of motion that referred to Dr Linklater’s first report, is a supplementary report provided by him dated 10 February 2021. I take it to be Ms Hamoodah’s position that she will wish also to rely upon this report at the hearing.

9. Ms Hamoodah’s very general position is that Dr Chin operated upon her without proper or any sufficient regard for her anatomical idiosyncrasies and that the damage to her venous and arterial vessels was the result of a failure to recognise these and approach the surgery accordingly. Dr Chin’s general response, apart from his denial of any negligence or departure from usual practice, is to draw attention to the operative notes that he says confirm what he intended to do and that he took account of all relevant matters in planning and executing the surgery.

10. Despite the very detailed and helpful submissions of counsel for all parties, the issue for me to determine reduces to a question of whether or not it would be just or reasonable to permit Ms Hamoodah at this relatively late stage to rely upon Dr Linklater when the defendants perceive that it fundamentally changes the case that they will be required to meet, with the associated trouble and expense of retaining further experts, or seeking additional opinions from their current experts, as well as the need to give Dr Chin the opportunity to formulate his own response. Counsel for the defendants has characterised Dr Linklater’s opinions, and Ms Hamoodah’s desire to rely upon them as follows:

“[F]or Dr Linklater's theory to be correct, that it wasn't in the native acetabulum - the surgery was in fact undertaken higher in the false acetabulum - for that to be the case, the defendant's operation report would have to be false. The assistant surgeon who completed the operation report with him would have had to have written a false operation report. All of the hospital records about this surgery would have to be wrong. The scans at Liverpool Hospital postoperatively, where the same cup was used in the same location, would have to be wrong. As a matter of simple logic, for the plaintiff to convince the court of Dr Linklater's theory, all of those would either have to be false or incorrect. That's simply not plausible.”

11. Senior counsel for Ms Hamoodah tacitly accepts that resolution of the question whether or not Dr Linklater has identified a genuine issue, or is promoting an hypothesis that is without factual or expert support, to some degree remains to be seen. He maintains that to the extent that there is some possibility that Ms Hamoodah’s operation failed for an as yet unascertained reason, she should be given the opportunity to pursue it.

12. Section 58 of the Civil Procedure Act 2005 should be noted:

58 Court to follow dictates of justice

(1) In deciding--

(a) whether to make any order or direction for the management of proceedings, including--

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court--

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant--

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

13. Doing the best I can, having regard to the dictates of justice and the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings, it seems to me that Ms Hamoodah should be given the opportunity to rely upon the latest opinions of Dr Linklater. Having regard to the terms of the current pleading on which she relies, it does not seem to me that any significantly dislocating or prejudicial consequences are likely to flow to the defendants if that course is permitted. I make no comment upon whether Ms Hamoodah considers that her amended statement of claim ought to be amended again. It will be a question for the trial judge to determine whether or not the current pleadings are adequate to accommodate a more detailed examination of the CT scan material, or the opinions that have been or may be proffered about it. Whether Ms Hamoodah considers that the circumstances warrant or demand some further review of her pleadings is a matter for her.

14. In forming my views on this application, I have taken account of the fact that there remain over four months until the hearing within which these matters can be explored. As indicated during the hearing of the motion, I propose to rely on the parties to formulate a timetable within which to attend to what needs to be done between now and the date of the hearing if it is to be maintained. I reiterate my opinion that the defendants should not be forced into maintenance of the scheduled hearing dates if Ms Hamoodah’s reliance upon Dr Linklater’s reports causes them to be unable to be sufficiently ready to proceed at that time.

15. Nor should the defendants be required to bear the costs associated with any disruption or further expense occasioned or wasted as the result of this application. I propose to reserve to myself the question of those costs, and the precise terms of any orders that should be made, until it is known whether the hearing will proceed in July and what occurs between now and then.

16. The formal orders that I will make are as follows:

1. Extend up to and including 5 March 2021 the time for service of the plaintiff’s liability evidence, including the reports of Dr Linklater dated 29 November 2020 and 10 February 2021.

2. Reserve the costs that have been, or may be, occasioned or thrown away by reason of the plaintiff’s application.

3. Direct the parties to confer and provide me by no later than 12 March 2021 with a proposed timetable for further directions in accordance with the Practice Note for the preparation of the matter for hearing commencing on 10 July 2021.

4. Grant liberty to apply to me on 48 hours’ notice by arrangement with my Associate.

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Decision last updated: 03 March 2021