Hannell v Lo

[2020] NSWSC 929

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hannell v Lo [2020] NSWSC 929

Hearing dates:

21 July 2020

Date of orders:

21 July 2020

Decision date:

21 July 2020

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)   Grant leave to the plaintiff to file in court an amended statement of claim in the form annexed to the affidavit of William James Madden sworn 17 July 2020.

(2)   Confirm the hearing date of 3 August 2020.

(3)   Order that any amended defence be filed by no later than 31 July 2020.

(4)   Order that the parties provide my Associate with a revised schedule of pre-trial requirements by no later than 23 July 2020.

(5)   Order that the costs of this application be Dr Hannell’s costs in the proceedings.

(6)   Grant liberty to apply.

Catchwords:

CIVIL PROCEDURE – negligence – where alleged failure to detect or report upon suspicious lesion – where proceedings expedited due to predictions about life expectancy of plaintiff – where plaintiff filed amended statement of claim – where defendant concerned about ability to address new proposals and organise such matters as expert conclaves and mediation by existing hearing date

Category:

Procedural and other rulings

Parties:

Geoffrey Hannell (Plaintiff)
Terry King Lo (Defendant)

Representation:

Counsel:
R O’Keefe (Plaintiff)
M Hutchings (Defendant)

Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2019/252510

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Dr Geoffrey Hannell sues Dr Terry King Lo claiming damages for negligence. Dr Hannell alleges that Dr Lo, who is a radiologist, failed to detect, or to report upon, a suspicious lesion in his right kidney following an ultrasound performed by Dr Lo on 19 January 2012. Dr Hannell maintains that the ultrasound in fact revealed the presence of such a lesion and that, by reason of Dr Lo’s alleged failures, it was never treated appropriately or at all and that it has now metastasised and will shortly cause Dr Hannell’s premature death. Dr Hannell contends that his current parlous condition would have been completely avoided if his renal carcinoma had been detected before it developed into metastatic disease.

2. The proceedings were recently expedited having regard to predictions about Dr Hannell’s life expectancy. It is currently listed for hearing commencing on 3 August 2020 with an estimate of seven days.

3. The proceedings were commenced by statement of claim filed as recently as 14 August 2019. Dr Hannell has now sought leave to file an amended statement of claim. Dr Lo does not object to that new pleading provided he is given some relief with respect to his ability to meet the new allegations this close to the hearing. In that respect, Dr Lo asserts that he will not be in a position adequately to address the new proposals with his experts by 3 August 2020 and that in addition the various pre-trial matters requiring attention, such as expert conclaves and mediation, will also have to be put back.

4. Dr Hannell’s proposed amendments are not significant. On one view, they are pedantic and unnecessary. The new pleading adds the following particulars of negligence to those already relied on:

(d) failure to report that in two images within the ultrasound images from 19 January 2012 showing the right kidney there was in the mid to upper pole centrally an echogenic mass which was an abnormal finding;

(e) failure to advise of the availability of and/or recommend that a repeat ultrasound be performed of the kidneys to obtain more images of the echogenic mass in various multiple planes for interpretation.

5. Paragraph 21 of the amended statement of claim then proceeds in the following terms:

21. If the plaintiff had been informed by the defendant that there was an echogenic mass which was abnormal [as opposed to a 4cm lesion] within the right kidney or that was suspicious for a renal transitional cell neoplasm or less commonly a lipoma or an angiomyolipoma then he would have sought and obtained another ultrasound of the kidneys and/or CT assessment of the right kidney and the renal carcinoma would have been detected by a competent radiologist.

6. New paragraph 6A of the amended statement of claim, alleging that the ultrasound images taken by Dr Lo were “suboptimal”, is no longer pressed.

7. At the heart of Dr Lo’s response to the original and amended allegations of negligence is a fundamental denial that there was a lesion, suspicious or otherwise, to be detected by him or any competent radiologist. That appears to be so whether the lesion is said to be 4cm in size or something approaching that dimension. That central and significant factual dispute will require determination with little, if indeed anything at all, turning upon the differences between the original pleading and the amended pleading. As far as I am aware, the parties’ respective experts have thoroughly examined that issue.

8. Dr Lo’s concerns are that there will be a need further to investigate the implications arising from the change in Dr Hannell’s allegations about the size of the lesion in relation to causation. I have some difficulty understanding that concern. Dr Lo’s expert, Dr Fox, was originally asked to assume that the lesion was 4cm in size, as referred to in Dr Bryant’s first report. The suggestion that Dr Fox could not easily or quickly accommodate his opinions to the suggestion that the lesion may have in fact been “up to 4cm in size” would seem to me to be somewhat extraordinary. I hold that view whether the significance of the size of the lesion is being assessed with respect to either breach of duty or causation. Drs Bryant and Fox are eminent members of their specialty, are well known to each other, and could in my view reasonably be expected to accommodate the amended pleading in the anticipated conclave between them.

9. However, there remain practical considerations, to which I have already adverted. The current timetable made by Registrar Jones, particularly in relation to conclaves and the list of issues for trial, will necessarily fall into arrears, even if only by a small amount. Having regard to the fact that there are now only eight clear business days before the hearing is due to commence, that becomes proportionately more significant. The prospect of a successful mediation before 3 August 2020 in such circumstances also recedes.

10. Notwithstanding those difficulties, I consider that the scheduled hearing date should be retained. The parties should produce an amended timetable, within 48 hours, to ensure that the matter is ready to proceed on 3 August 2020. I will grant liberty to apply to me on 24 hours’ notice by arrangement with my Associate if so required.

**********

Amendments

23 July 2020 - Typographical error in [8] corrected

Decision last updated: 23 July 2020