Hancock v State of Queensland

[2000] QSC 469

SUPREME COURT OF QUEENSLAND

CITATION:	Hancock v State of Queensland [2000] QSC 469
PARTIES:	SUSAN GAI HANCOCK (plaintiff) v STATE OF QUEENSLAND (defendant)
FILE NO:	6229 of 1999
DIVISION:	Trial Division
DELIVERED ON:	14 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2000
JUDGE:	Mackenzie J
ORDER:	1.  I order that the respondent deliver to the applicant further and better particulars of paragraph 16(a) of the statement of claim within 28 days. 2.  The application for further and better particulars of paragraph 16(c) is refused. 3.  Costs of and incidental to the application are costs in the cause.
CATCHWORDS:	NEGLIGENCE – MEDICAL NEGLIGENCE – request for further and better particulars – disclosure of experts reports.
COUNSEL:	R Clutterbuck for applicant/plaintiff S Couper SC for respondent/defendant
SOLICITORS:	Shine Roche McGowan for plaintiff Gadens Lawyers for the defendant

1. MACKENZIE J:  This is an application by the defendant for further and better particulars in an action for medical negligence.  The action arises out of an unsuccessful procedure to sterilise the plaintiff by use of a Filshie Clip in June 1997. 

1. Relevantly paragraph 5 of the statement of claim alleges that the respondent plaintiff was advised that the procedure had a much higher probability of being successful than other methods of sterilisation and that the failure rate was negligible.  It was alleged, in the alternative, that she was not advised of other available forms of surgical procedures for the same purpose.  Paragraph 6 of the statement of claim alleges that, based on those assurances and more particularly, that of the probability of success, she contracted with the applicant to have the procedure performed with reasonable care, skill and expertise.  She also contracted to have information imparted to her to cause her to be aware and fully informed of the procedure to be adopted and the full extent of the risks.

1. Paragraph 16(a) alleges that the applicant failed to inform the respondent of other alternative procedures.  Further and better particulars of it were sought in a letter of 6 September 1999 in which various comments were also made on aspects of the pleadings.  One matter pursued was that there was nothing to indicate what alternative surgical procedures were allegedly available and what she should have been told.  Further and better particulars requested were the identity of the other alternative procedures and in each case a statement of the advice or information which ought to have been given. 

1. The response to this was that, in each case, the particulars sought were "a question of medical evidence which is not able to be supplied at this point" except that the respondent was not advised of alternative procedures, including but not limited to, oral contraceptive pills and other birth control methods and that there were other forms of birth control aside from sterilisation by tubal ligation. 

1. This was plainly an unsatisfactory response.  The issue was taken up again in correspondence.  On 5 July 2000 amended further and better particulars were given defining "other alternative procedures" by saying that they:

"(i)  Included all invasive and non-invasive techniques and/or procedures which are commonly known as tubal ligations, 'cutting and/or tying the tubes', and/or sterilisation including but not limited to the use of fallope rings, the Pomeroy Method, cauterisation of the fallopian tube, hysterectomies, and/or any other method of occluding the fallopian tube to prevent conception which were available to the plaintiff at the time of the procedure in June 1997;
(ii)  Included further discussion of the use of other methods such as but not limited to the use of inter-uterine devices (IUD's) vasectomy the continuation of the oral contraceptive pill;"        

1. With respect to the advice that should have been given it was stated to be:

"(i)  The relative success and/or failure rates of each and every technique and/or method available, the risks associated with each and every different method and the advantages of one method over any other method."

1. A letter of 20 October 2000 pointed out that because the particulars were expressed in inclusive terms and open ended they did not enable the defendant applicant to ascertain the true nature of the case it had to meet.  This was met by a response of 1 November 2000 that the particulars were adequate, that what was sought was in the nature of evidence, and (probably despite the passage in the letter being incomprehensible) that because the respondent had pleaded failure to inform or adequately inform her of alternative procedures she was not under an obligation to outline the nature of each and every alternative. 

1. It was also said that the request for particulars of advice or information which the defendant ought to have allegedly given to the respondent was a request for evidence.  The letter seems to proceed on the assumption that evidence as to those matters is non-expert evidence and will not have to be disclosed in advance of trial in accordance with the rules.  This also seemed implicit in submissions by counsel for the respondent, since one complaint about being required to disclose the information sought seemed to be that it would deprive the respondent of some kind of forensic advantage by reason of the respondent's counsel not being able to cross-examine the applicant's witnesses on medical issues without revealing in advance the identity of particular writings about which they were to be questioned. 

1. Rule 161 permits an application for further and better particulars.  Rule 157 requires that a party must include in a pleading particulars necessary to define issues for, and prevent surprise at the trial.  The role of particulars is succinctly summarised in Ryan Weld and Lee's Queensland Supreme Court Rules pages 4286 and 4287 in the following propositions:

"(i)  To inform the other side of the nature of the case they have to meet as distinct from the mode in which the case is to be proved;
(ii)  To prevent the other side from being taken by surprise at the trial;
(iii)  To enable the opposing party to know what evidence they ought to be prepared to lead at trial;
(iv)  To limit the generality of the pleadings;
(v)  To limit and define the issues to be tried and as to which discovery is required;
(vi)  To bind the opposite party at trial so that, without leave, evidence cannot be led as to matters not included."   

1. It is quite plain that further and better particulars of par 16(a) supplied so far are insufficient.  It is no answer to say as is asserted in an affidavit filed by leave on the respondent's behalf that the applicant has on staff expert gynaecologists who would be well versed in methods of occluding fallopian tubes.  The applicant is entitled to know what other alternative procedures were alleged to be available at the time of the procedure so that the issues with respect to each of them can be clearly defined in the pleadings. 

1. It is true that in the amended further and better particulars of 5 July 2000 four specific procedures for cutting or tying the fallopian tubes are mentioned, but the possibility that others not specified may be raised at trial is real because of the plain intent of the drafter of the particulars not to be bound only to those specifically mentioned.  Such a pleading does not conform with the requirements of rule 157, since it neither defines the issues nor prevents surprise.  The same applies to the particulars concerning other alternative procedures which do not involve cutting or tying the fallopian tubes.

1. If the reason for the vagueness is that the solicitors for the respondent have not yet got expert opinion sufficient to allow clarity of expression of what the case is the remedy is in their hands.  In saying that, the nature and purpose of particulars has not been overlooked.  Adequate particulars to define issues and prevent surprise do not require disclosure of evidence in the relevant sense. 

1. Looking further ahead, as it seems to me, all experts' reports to be relied on will in any event have to be disclosed before trial.  It is difficult to see any justification for an expectation that the respondent can escape the strictures of the rules regarding disclosure of experts' reports by assuming that, if publications and articles reported in professional journals and international data as to failure rates are to be relied on, they can be meaningfully introduced except through one of the respondent's experts.  If a publication, report or data is to be relied on specifically as evidence upon which an inference may be drawn that the applicant knew or ought to have known of the opinions or facts in them, the notion that it may be introduced for the first time in cross-examination of an opposing witness without previously disclosing its existence is incompatible with the modern approach to litigation of this kind. 

1. The purpose of the rules is to require the opinion of an opposing expert to be fully exposed so that other experts may comment upon that evidence in an informed way.  The notion that it is legitimate to seek to gain some forensic advantage by surprising an opposing expert by producing a specific publication, article or body of data for the first time in cross-examination is no longer correct. 

1. In the present case the respondent has asked for trial by jury.  In such a case it is specially important that the issues be clearly and precisely defined.  It is the pleadings and further and better particulars which define the issues for the jury.  In the absence of precisely defined issues the risk of the trial miscarrying is appreciable.  Further and better particulars of paragraph 16(a) must be provided.  

1. The applicant also seeks further and better particulars of paragraph 16(c).  The particulars supplied in the letter of 5 May 2000 were in substance as follows.  At the time of the procedure there was a body of medical opinion and documents tending to establish that there was a higher failure rate than the Filshie Clip procedure was used (although it was unspecific as to quantification).  At the time of the procedure there was evidence that the Filshie Clip applicator could fail because it did not properly apply the clip to the fallopian tube.  The failure rate of the applicator was higher than with other tubal ligations.  The failure was widely documented.  The applicant knew that the failure rate was higher because of medical opinion and documents available to it.  The applicant ought to have known that the rate was higher because of well documented failure of the applicator. 

1. The critical time in this regard is the period during which the respondent should have been appropriately advised and the operation was performed.  The respondent's case is that there was in professional publications and journal articles, evidence of a higher failure rate for the procedure and a reason for it.  It was alleged that the applicant knew or should have known of these things. 

1. In my opinion paragraph 16(c) sufficiently states the facts upon which the case is based.  Further and better particulars are not necessary, if what has been provided is understood as analysed. 

1. It is noted that there was a debate of the effect of paragraph 1 of Dr Adam's report of 13 September 2000.  Leaving aside the question of what it means, perhaps the most fundamental difficulty is that it is impossible to fix from it the time when the figures as to failure rates are said to have become erroneous. 

1. I have come to the conclusion that the particulars of paragraph 16(c) are sufficient.  There will therefore be no order for further and better particulars in that instance.  Because of what has been ordered, the matter is clearly not yet ready for trial. 

1. The orders are as follows:

1.          I order that the respondent deliver to the applicant further and better particulars of paragraph 16(a) of the statement of claim within 28 days.

2.          The application for further and better particulars of paragraph 16(c) is refused.

3.          Costs of and incidental to the application are costs in the cause.