Hanby v State of SA

[2025] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

HANBY v STATE OF SA & ORS

[2025] SASC 84

Reasons for Ruling of the Honourable Justice McIntyre  

TORTS - NEGLIGENCE - DAMAGE AND CAUSATION - CAUSATION

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULAR PLEADINGS - DEFENCE

Interlocutory applications are made by each of the respondents seeking leave to amend their defences. The first and second respondents each propose amendments concerning the failure of the Kasai Portoenterostomy (‘Kasai’) procedure. The second and third respondents each propose amendments concerning the question of delayed diagnosis of the applicant’s Biliary Atresia. The applications are partly agreed by the applicant.

In relation to the amendments concerning the Kasai procedure, submissions were led by the first respondent. In the event that the first respondent is successful, the second respondent seeks leave to amend its defence in relation to the issue also. The first respondent submits that its amendments extend its denial regarding the success of the Kasai procedure. The applicant contends that the proposed amendments are delayed without justification, unsupported by evidence and prejudicial. 

In relation to the amendments concerning the question of a delayed diagnosis, the second and third respondents submit that the amendments are a refinement of existing pleadings and do not introduce new material. The applicant contends that the amendments do not comply with UCR 67.2 as they do not give fair notice of the respondents’ cases in respect of dates, steps and particulars.

Held: Applications granted – respondents have leave to amend their defences.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASFC 59; PPG Development Pty Ltd v Capitano [2016] SASC 169; Saadat v The Commonwealth of Australia & Ors [2019] SASC 28, considered.

HANBY v STATE OF SA & ORS
[2025] SASC 84

Civil: Ruling

1. McINTYRE J:    The trial of this complex medical negligence matter is listed to commence on 7 July 2025.  It has been set down for a period of two months.  Each of the respondents has brought an interlocutory application seeking leave to amend their defences.  The applications have been partly agreed but the applicant submits that the court should not grant leave for the following contested paragraphs:

   ·The first respondent’s application for leave to amend paragraph 43;

   ·The second respondent’s application for leave to amend paragraphs 24.3, 24.4, 25.6, 25.7, 28 and 29; and

   ·The third respondent’s application for leave to amend paragraph 39A.

2. The applicant claims that the Kasai Portoenterostomy (‘the Kasai’), a surgical procedure performed at the Women and Children’s Hospital (‘WCH’) on 23 September 2002, was unsuccessful due to a delay in performing the procedure.  As a result, it is contended that the applicant required an early liver transplant. 

3. There is no suggestion that the Kasai procedure was inappropriate or that there was any issue with the manner in which it was performed.  The sole issue pleaded in relation to that surgery is that of delay.  All of the respondents have denied that the delay was occasioned by any negligence on their part.  They further deny that the Kasai was unsuccessful due to a delay in performing that procedure. 

4. The applicant’s claim raises very difficult questions of causation.  These issues are both legal and factual.  Three conclaves of medical experts have been convened to narrow the issues in dispute.  A conclave of midwives prepared a joint midwifery report dated 6 January 2025.[1]  A conclave of general practitioners prepared a report dated 14 February 2025.[2]  A conclave of nine medical experts was convened to opine on issues of causation; their report was dated 4 March 2025.[3]

   [1]    Exhibit PJJ1 to FDN 114.

   [2]    Exhibit PJJ2 to FDN 114.

   [3]    Exhibit PJJ3 to FDN 114.

5. The contested applications to amend the defences fall into two categories.  The first relates to the failure of the Kasai procedure and the second relates to the question of delay. 

6. For the reasons that follow I grant leave to the respondents to amend their defences in line with their respective applications.

   Legal Principles

7. Rule 69.2 of the Uniform Civil Rules (‘UCR’) permits a party to amend a claim or pleading by consent or with leave of the Court.  The question of leave to amend is a discretionary question to be determined consistently with the principles set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (‘Aon’).[4]  The High Court held that such rules were directed not only at the resolution of the dispute between the parties, but also to enable the court to do justice to all litigants and those other people in the system.  The High Court made it plain that there was a balancing act to be undertaken in each case where a party seeks to amend pleadings and stated that:

   Factors such as the nature and importance of the amendment to the party applying cannot be overlooked.  Whilst r21 assumes some ill effects will flow from the fact of a delay that will not prevent the parties dealing with its particular effects in their case in more detail.  It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case.  Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made.  There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates.

   [4] (2009) 239 CLR 175.

8. Aon has been considered by this Court in a number of decisions: Channel Seven Adelaide Pty Ltd v Manock[5], PPG Development Pty Ltd v Capitano[6] and Saadat v The Commonwealth of Australia & Ors (‘Saadat’).[7]  In Saadat Stanley J summarised the relevant principles as follows:

   [5]    [2010] SASFC 59.

   [6] [2016] SASC 169.

   [7] [2019] SASC 28.

   ·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.

   ·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.

   ·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).

   ·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.

   ·Whether the party has had a sufficient opportunity to plead their case earlier.

   ·The time, cost and inconvenience associated with any delay or disruption of the proceedings.

   ·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.

   ·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.

   ·The impact upon the public’s confidence in the just and efficient administration of justice.[8]

   (footnotes omitted)

   [8]    Doyle J noted that a similar list of relevant matters was formulated by Bleby J in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 at [46].

9. I have determined these applications by reference to these principles. 

   The Kasai procedure amendments

10. The first respondent and the second respondent seek to amend their pleadings to allege that the Kasai procedure was initially successful until the applicant “suffered a number of bouts of cholangitis resulting in infection and a need for a liver transplant”.[9]  The third respondent does not seek to amend but relies on a general denial of the applicant’s pleading that the Kasai procedure failed. 

    [9] FDN 117 at [7].

11. The second respondent supports the first respondent’s application and seeks to amend its defence in relation to this issue to react to issues that may arise out of a successful application to amend by the first respondent.  If the first respondent’s application fails, then the second respondent does not press amendments in relation to that issue.  The relevant amendments proposed for the second respondent are paragraph 24.3, 24.4, 25.6 and 25.7. 

12. The first respondent filed an affidavit in support of the application to amend.[10]  In that affidavit it is said that Dr Andrew Ford was the surgeon who performed the Kasai procedure.  He made operation notes following the procedure and also wrote a letter to a Professor Davidson on 14 November 2002.  Those notes are within the applicant’s WCH medical records.  They were discovered and have been available throughout these proceedings.  The first respondent says that Dr Ford has not been employed by them since 2011 and that he no longer lives in Australia.  Dr Ford has recently been located by an investigator.  The first respondent proposes to call Dr Ford to give evidence “in relation to Kasai surgery and the 14 November 2002 letter”.[11]  The proposed amendments to paragraph 42 and 43 are said to arise from the evidence to be given by Dr Ford.  The proposed amendments were provided to the applicant on 21 March 2025 and are as follows:

    [10] FDN 94.

    [11] FDN 94 at [14].

    42.Numbering preserved. The First Respondent repeats the matters in paragraphs 41.2 to 41.5 inclusive herein and denies that the Kasai surgery was unsuccessful due to a delay in performing the procedure, or otherwise:

    42.1. The Kasai surgery was initially successful in re-establishing bile flow from the liver to the intestines evidenced by:

    42.1.1. Clinical clearance of jaundice within 3 to 4 weeks of Kasai surgery:

    42.1.2. Decreased bilibrun levels in blood results following Kasai surgery; and

    42.1.3. Clear urine and pigmented stools following the Kasai surgery.

    43. In relation to the allegations in paragraph 43, the First Respondent admits that on 4 December 2002 Cooper was transferred to Westmead Children’s Hospital in New South Wales for a liver transplant and further says that Cooper’s progress following the initially successful Kasai surgery was impeded by recurring acute cholangitis (bacterial infection) which:

    43.1. Was a recognised complication following Kasai surgery irrespective of when the surgery was carried out:

    43.2. Was aggressive and not responsive to treatment;

    43.3. Comprised bile flow established in the Kasai surgery, evidence by the return of jaundice and discoloured urine; and

    43.4. Precipitated and contributed to the need for Cooper to undergo liver transplant surgery approximately 7 months following the Kasai surgery.

    (emphasis in original)

13. The first respondent contends in its written submissions:[12] 

    The effect of the amendment is to move from a denial that any delay in performance of the Kasai surgery resulted in its failure to a denial of failure at all, initially, and the positive identification of acute cholangitis as the factor which impeded the continuing success of the Kasai surgery.

    [12] FDN 117 at [18].

14. The applicant does not object to the amendment to paragraph 42 but does object to leave being granted to amend paragraph 43 contending that:

    ·there is no proper explanation for the timing of the application given the lack of explanation about the steps taken to locate Dr Ford,

    ·the proposed defence that the Kasai did not fail due to delay but due to recurrent cholangitis is not tenable or arguable; and

    ·that there is prejudice to the applicant arising from the fact that Dr Ford has not been briefed or disclosed as an expert witness in accordance with Part 14 of the UCR.

15. The explanation for the delay in seeking leave to make these amendments is unsatisfactory.  Whilst information has been provided about the fact that Dr Ford is no longer in the first respondent’s employ and that investigators have recently located him, no information has been provided as to when investigators were first instructed to look for Dr Ford.  However, the relevance of Dr Ford’s availability to give evidence to the issue of the amendment is obscure.  No other explanation for the delay has been advanced. 

16. The first respondent contends that Dr Ford is being called as a factual witness to give evidence about his operation notes and his observations in the letter that the Kasai was initially successful.  The operation notes and Dr Ford’s letter have been available since the WCH notes were discovered.  They were provided to the causation conclave.  The conclave was asked to comment about cholangitis following the Kasai procedure and did so.  It is unclear what Dr Ford could add to this without straying into expert evidence or without adding to, or contradicting, material contained in the discovered documents.  Whilst this is not an application relating to Dr Ford’s evidence, any of those options would be objectionable.  Indeed, the applicant has foreshadowed such objections in his opposition to the amendment application.  I indicate that, absent cogent reasons to do so, I would not be prepared to permit Dr Ford to give such evidence.  The parties have proceeded thus far on the basis of the WCH notes, including the operation notes and Dr Ford’s letter.  To permit evidence beyond that, whether expert or not, or evidence that contradicts that material would risk considerable prejudice to the applicant and the other respondents. 

17. The importance of the proposed amendments is difficult to evaluate accurately without hearing the evidence.  The first and second respondents contend that these amendments are important in order to determine the real controversy between the parties.  On balance I accept that the amendments are important and, further, that they do not involve any new information in view of my observations about the limitations likely to apply to any evidence given by Dr Ford. 

18. Likewise, there are limits to the ability of the Court weighing the merits of a proposed amendment in the absence of hearing the evidence, particularly given the complexity of the medical issues.  I note the applicant’s submissions that the amendments do not accord with the findings of the expert conclave.[13]  The first respondent, however, says that the answers of the conclave do not prevent the first respondent from advancing a pleading that the Kasai surgery was initially successful but impeded by recurring acute cholangitis.  The basis for this submission is a contention that it appears that the experts assumed the failure of the Kasai surgery, albeit that this was not expressed to be an assumed fact in the letters of instruction.[14]  Noting that the applicant is prepared to consent to the amendment in terms of the proposed paragraph 42, I am not satisfied that the proposed amendment to paragraph 43 is not arguable or tenable.

    [13] FDN 122 at [15].

    [14] FDN 117 at [22].

19. Whilst these applications to amend are late, with limited explanation for the delay, no party has suggested that the amendments proposed will adversely impact the trial.  Further there is no evidence of additional cost to be occasioned by the amendments or any impact upon public confidence.  Accordingly, I will grant leave to the first and second respondents to amend their defences as sought.

    The “delay” amendments

20. The second respondent and the third respondent seek to amend their pleadings in relation to the question of delay.  The first respondent does not propose any amendment on this topic.

21. The nature of the applicant’s case against the second and third respondents is an allegation that they failed to diagnose and treat the applicant’s jaundice in a timely manner meaning that the applicant did not undergo the Kasai surgery at an earlier point in time.  There is a factual dispute between the applicant and the second respondent and the applicant and the third respondent as to advice given and actions taken at consultations that occurred in August 2002.  The details of the parties’ respective positions in relation to these factual issues are set out in detail in the affidavits filed in relation to the applications.  I will not repeat these.  The allegations in relation to the second respondent arise out of a consultation on 5 August 2002 and the allegations in respect of the third respondent arise out of a consultation on 6 August 2002.  In summary, the amendments allege that the applicant’s mother failed to follow up a referral to a paediatrician Dr Tao in circumstances where the applicant’s mother denies being given any such referrals. 

22. The applicant opposes these amendments on the basis that the proposed pleadings do not comply with UCR 67.2 as they do not give fair notice of the respondents’ cases in respect of dates, steps and particulars.  It is said that the lack of particularity is prejudicial to the applicant in that he is unable to respond to it. 

23. The respondents on the other hand say that the proposed amendments do not introduce new material but are a refinement of existing pleadings.  The second respondent seeks leave to plead the following:[15]

    28.If Cooper’s mother had acted on the referral to Dr Tao which was made by Dr Rose and Cooper had been seen by Dr Tao, then Cooper’s Biliary Atresia would have been identified earlier and there would have been no causation delay. 

    29.If Cooper’s mother had acted on advice of the Third Respondent on 6 August 2002 to take Cooper to see Dr Tao and Cooper was seen by Dr Tao, then Cooper’s Biliary Atresia would have been identified earlier and there would have been no causative delay. 

    (emphasis in original)

    [15] FDN 99. 

24. The third respondent proposes the following amendment:[16]

    39A.  Further and in the alternative, if the Applicant’s mother had followed the advice provided by the Third Respondent described in paragraph 24.9 and attended Dr Tao, the Applicant’s Biliary Atresia would have been diagnosed and treated earlier and there would have been no causative delay. 

    (emphasis in original)

    [16] FDN 97. 

25. These amendments do not introduce new material.  The defences filed by both the second and the third respondents currently have pleadings on this topic.[17]  The applicant has filed replies to both defences joining issue with those pleadings.[18]  There is clearly a significant factual dispute to be determined, however, the proposed pleadings do no more than plead a counterfactual based upon material that is already pleaded.  The particulars contained in the existing pleadings are adequate.  Whilst there is no specific explanation for the delay in seeking this amendment, beyond a pre-trial review of proceedings in the light of the conclaves, there is no suggestion that the amendments will impact the commencement of the trial or its length.  Further, there is no evidence of additional cost to be occasioned by the amendment nor of any possible impact on public confidence.  In all of the circumstances I will grant leave to the second and third respondent to amend their pleadings as set out above. 

    [17] FDN 11 at [14.4] – [15]; FDN 9 at [24.5] - [24.9].

    [18] FDN 16 at [3]; FDN 13 at [7].