Hartfield v Calvary Healthcare Act Ltd

[2023] ACTSC 401

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hartfield v Calvary Healthcare ACT Ltd

Citation: 

[2023] ACTSC 401

Hearing Date: 

14 – 15 December 2023

Decision Date: 

19 December 2023

Before:

Baker J

Decision: 

(1)    Leave is granted to the plaintiff to file and serve an Amended Statement of Claim in the form contained in MFI “3”. The plaintiff is to file and serve the Amended Statement of Claim on or before 4pm on 20 December 2023.

(2)    Leave is granted to the defendant to file and serve an Amended Defence on or before 4pm on 2 February 2024.

(3)    The proceedings are listed before the Registrar on 6 February 2024 for a further hearing date to be set.

Catchwords: 

PLEADINGS – application to amend Statement of Claim after the close of evidence – s 67 of the Court Procedures Act 2004 (ACT) and rule 501 of the Court Procedure Rules 2006 (ACT) – whether alternative case encompassed within existing pleading – application granted.

Legislation Cited: 

Court Procedures Act 2004 (ACT) ss 5A, 67

Court Procedures Rules 2006 (ACT) rr 501, 507, 512

Cases Cited: 

AON Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175

Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666

The Owners - Units Plan 3550 v BCA Certifiers Australia Pty Ltd [2021] ACTSC 3

Parties: 

Emily Hartfield ( Plaintiff)

Calvary Healthcare ACT Ltd ( Defendant)

Representation: 

Counsel

D Toomey SC with D Richards ( Plaintiff)

J Morris SC with E Elbourne ( Defendant)

Solicitors

Maliganis Edwards Johnson ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 251 of 2022

BAKER J:      

Introduction

1․The plaintiff in this matter, Emily Hartfield, seeks damages for medical negligence in relation to her treatment by the defendant when experiencing an ectopic pregnancy in 2019.

2․In brief, on 31 July 2019, the plaintiff attended Calvary Public hospital (the hospital) with left sided abdominal pain and per vaginum bleeding. The plaintiff had previously suffered an ectopic pregnancy in 2015, and she was concerned that she may have been suffering from a further ectopic pregnancy. The plaintiff was admitted to the hospital, given pain-killers and assessed overnight, before being discharged on 1 August 2019 (the first admission). She returned to the hospital early in the morning of 2 August 2019 in severe pain (the second admission). Further testing at that time revealed that the plaintiff was suffering from a leaking or ruptured left ectopic pregnancy. The plaintiff was immediately admitted into emergency surgery for removal of her left fallopian tube.

3․The proceedings were heard before me from 11 September 2023 until 15 September 2023. Following the exchange of written submissions following that hearing, the plaintiff seeks leave to amend her Statement of Claim to formally particularise an alternative basis of liability.

4․For the reasons outlined below, it is appropriate to grant leave to the plaintiff to amend her Statement of Claim, notwithstanding the lateness of the application.

Background

5․In her Statement of Claim filed on 21 July 2022, the plaintiff alleges that in the first admission, the defendant, inter alia, failed to “appropriately assess, diagnose and treat” her. The plaintiff further contends that, as a result of the defendant’s negligence, she suffered, inter alia, a rupture of the left fallopian tube, loss of fertility, and psychological trauma.

6․The proceedings were listed for hearing before me for four days from 11 September 2023 to 14 September 2023. The evidence in the proceedings ultimately extended over five days, to 15 September 2023.

7․At the conclusion of the hearing, the parties sought an opportunity to provide written submissions, and for the proceedings to be adjourned for oral submissions later in the year. I acceded to this application and made orders for the filing of both parties’ submissions and for the proceedings to be listed for oral submissions on 15 December 2023.

8․Both parties subsequently requested, and received, extensions of time to file their written submissions. After the defendant filed its submissions in reply on 21 November 2023, the Court did not receive any further communication from the parties until 4:20pm on 13 December 2023, when my chambers received telephone and email communications advising that the parties jointly sought that the proceedings be listed for teleconference that afternoon, so that the parties could seek a vacation of the hearing date listed for 15 December 2023.

9․The parties were informed by my chambers that this approach was inappropriate and that if they wished to seek vacation of the hearing date, this should be done by way of the filing of an application, supported by an affidavit.

10․An application for vacation of the hearing date was filed by the plaintiff the following morning, supported by an affidavit of the plaintiff’s instructing solicitor. That affidavit explained that the defendant’s written submissions had raised a point about the adequacy of the plaintiff’s pleadings, and that orders were sought for the hearing to be vacated so as to enable the plaintiff to file an Amended Statement of Claim.

11․The plaintiff’s application for vacation of the hearing came before me at 12:00pm on 14 December 2023. In that application, Mr Toomey SC, who appeared for the plaintiff, submitted that it was necessary for the pleadings to be amended, to ensure that the plaintiff could fairly put her case without denying the defendant procedural fairness. Mr Toomey SC foreshadowed that once the Amended Statement of Claim was filed, the defendant may amend its defence to plead contributory negligence. Mr Toomey SC indicated that the plaintiff would not have any objection to this course. Mr Toomey SC also foreshadowed that in this eventuality, it may become necessary for the plaintiff to be recalled for cross-examination as to contributory negligence. Mr Toomey SC indicated that there would also not be any objection to this course.

12․At that time, Mr Morris SC, who now appears for the defendant, leading Ms Elbourne of counsel, did not appear to object to the plaintiff having leave to amend its pleadings. He accepted that it was possible for the court to accommodate “the procedural fairness issue”. However, he indicated that he was not able to formally consent to the filing of the Amended Statement of Claim without seeing its content. To this end, I ordered the plaintiff to serve the defendant with a proposed Amended Statement of Claim by 4pm on that day, and listed the application at 10am on 15 December 2023.

13․The plaintiff served the proposed Amended Statement of Claim on the defendant before 4pm on 14 December 2023, as directed by the Court.

14․At the resumed hearing on 15 December 2023, I was informed that the defendant now actively opposes the plaintiff being granted leave to file that proposed pleading.

The proposed amendments to the Statement of Claim

15․The original Statement of Claim was broadly pleaded. As noted at [5] above, it alleged that the defendant failed to “appropriately assess, diagnose and treat” the plaintiff, and that, as a result of its negligence, the plaintiff suffered both physical and psychological injuries.

16․The plaintiff’s primary case is that further investigations, and in particular, a laparoscopy should have occurred when the plaintiff was first admitted to the hospital. The plaintiff contends that if a laparoscopy had been undertaken, it is likely that the ectopic pregnancy would have been seen and immediately diagnosed. On that diagnosis, the plaintiff would have been offered the option of a salpingostomy (that is, a procedure for the repair, rather than the removal of the fallopian tube). As the plaintiff had already had the removal of one fallopian tube as a result of her previous ectopic pregnancy, she contends that she would have chosen the salpingostomy, thus preserving the possibility of future natural conception.

17․The proposed amendments make clear that the plaintiff also advances an alternative case, which is that even if it was not appropriate for a laparoscopy to be undertaken (and/or if the ectopic pregnancy would not have been apparent on the laparoscopy), the defendant nonetheless breached its duty to the plaintiff by discharging her on 1 August 2019. The plaintiff contends that if she had not been discharged, then even though the ectopic pregnancy would still have ruptured, the rupture would have occurred in hospital rather than when she was at home. The plaintiff contends that if her ectopic pregnancy had ruptured whilst she was in hospital, her psychological distress would have been lessened (as she would not have believed herself to be at risk of significant harm or death), and she would not have sustained ongoing psychological injury.

18․The plaintiff’s alternative case assumed particular prominence after the medical evidence was given in the defence case. There is evidence in the medical notes that the plaintiff complained to a nurse that she was suffering 6/10 pain on the morning of 1 August 2019. Dr Menakaya, the on-call obstetric and gynaecological consultant who oversaw the plaintiff’s care, gave evidence that he was not aware of this when he spoke to Dr Bodulkar, the treating obstetric and gynaecological registrar, about discharging the plaintiff, and that if he had been aware, he would be unlikely to have discharged the plaintiff without further investigations and an in-person consultation with the plaintiff.

Submissions

19․In his oral submissions in support of the application, Mr Toomey SC contended that s 67 of the Court Procedures Act 2004 (ACT) and rule 501 of the Court Procedures Rules 2006 (ACT) require the Court to make the amendments sought. He also relied on the decision of the High Court in Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666 at 668, in which Stephen, Mason and Jacobs JJ held:

… [T]he duty of the trial judge was clear. If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged.

20․Mr Toomey SC contended that the defendant had not been taken by surprise by the amendments, noting that the plaintiff’s alternative case was within the original pleadings and within the plaintiff’s case as opened at the commencement of the September hearing.

21․Mr Toomey SC particularly relied on the following exchange between myself and Ms Elbourne (who then appeared unled as counsel for the defendant), which occurred on the fourth day of the proceedings, after the relevant medical practitioners had given evidence and prior to the experts giving evidence:

HER HONOUR: … Ms Elbourne, as I understand it Mr Toomey has clearly raised an alternative case, a counter-factual. Namely, that as a result of the failure to communicate the six out of 10 pain rating to Dr Menakaya, Dr Menakaya firstly did not attend on the plaintiff and secondly, that if Dr Menakaya had attended on the plaintiff and seen her and given her advice, that she would not have been discharged at that time.

Now as I understand it, the defendant's response is firstly that on the balance of probabilities I wouldn't be satisfied that [the plaintiff] would have remained in hospital if that had occurred and secondly, that even if she had remained in hospital and was there at 7.00 pm the medical outcome would be the same.

MS ELBOURNE: Precisely.

HER HONOUR: The first question is, just so that nobody is taken by surprise when we get to closing addresses, I've reviewed the pleadings. That case is not starkly stated, no doubt because the plaintiff was not aware of what Dr Menakaya would say at the time that the pleadings were drafted but I do consider, subject to anything both of you say, that the duty pleading in paragraph 3.3.3, which refers to appropriate assessment and thereafter provide appropriate treatment, and 3.3.4, take reasonable steps to reduce risk of foreseeable injury and the like, is sufficiently broad to encompass that allegation of duty and also when one turns to breach, in particular 5.3.2, failing to appropriate assess, examine, diagnose and treat the plaintiff on 1 August.

In those circumstances I don't consider that there is any pleadings problem with the plaintiff's alternative case but if there is, I wanted to be aware of that before we got to closing addresses. I don't consider that – you haven't suggested to this point that you've been taken by surprise or that you're not in any position to deal with this alternative case, Ms Elbourne, but I just wanted to check that that was the case.

MS ELBOURNE: Not in relation to liability, your Honour. 

22․I then asked Mr Toomey SC, who appeared for the plaintiff, the following question:

… at least part of the defendant's experts' evidence would be to the effect that the medical outcome in terms of the prospects of retaining the fallopian tube would have been the same. If I were to accept that evidence, is there still an alternative case on psychological harm?

Namely that if [the plaintiff] had been in the hospital at 7.00 pm rather than at 2 o'clock in the morning she may still have lost the fallopian tube but she would not have lost it on the circumstances of being rushed to hospital in emergency surgery and the like.

MR TOOMEY: Precisely, your Honour.

23․Although Ms Elbourne strongly maintained a number of objections to the expert evidence after this point (primarily on the basis that aspects of the expert evidence had not been served in accordance with the Cour Procedures Rules), she did not contend that the plaintiff was precluded by her pleadings from advancing her alternative case. Rather, the defendant’s first pleadings objection to the alternative case was in the defendant’s written submissions, filed over two months after the conclusion of the hearing.

24․When asked about the above exchange, Mr Morris SC explained that “the enormity of the issue” only became apparent when the experts subsequently gave evidence. He submitted that “the reality is as the evidence unfolded, it was quite clear, regardless of any concession that might have been given” that there was an issue of procedural fairness in the plaintiff proceeding to advance her alternative case.

25․Although Mr Toomey SC submits that the alternative case is within the original pleadings, he nonetheless accepts that a procedural fairness issue has arisen. The difficulty concerns an objection that was made to cross-examination of the plaintiff early in the proceeding. Specifically, during the course of the plaintiff’s cross-examination, Ms Elbourne sought to question the plaintiff about her failure to attend the hospital earlier in the evening on 1 August 2019, when the plaintiff first started to experience increasing pain. Objection was taken by Mr Toomey SC. I upheld the objection, on the basis that this evidence was not relevant in circumstances where the defendant had not pleaded a case of contributory negligence in its defence. 

26․Mr Toomey SC accepts that, given the way in which the issues in the proceedings unfolded following the evidence of the medical practitioners, the defendant should be given an opportunity to plead contributory negligence in its defence and, if such an amendment is made, to cross-examine the plaintiff on this issue.

27․In his oral submissions in reply, Mr Morris SC fairly accepted that it is “entirely possible” for the defendant to plead to the proposed Amended Statement of Claim. However, he contended that the procedural fairness issue would not necessarily be expunged simply by permitting the defendant to plead contributory negligence and recalling the plaintiff.

28․First, he noted that the plaintiff is now aware of the issues in dispute, which “gives rise to a presumption of prejudice”, albeit one that “might be capable of being dealt with in cross-examination”. Second, he contended that the plaintiff’s alternative case may require the defendant to look at additional material that has not previously been addressed, such as hospital guidelines and/or different or supplementary psychiatric evidence on the question of causation. Whilst acknowledging the force of the High Court’s comments in Leotta, Mr Morris SC submitted that the Court must also have regard to the development of case management principles since Leotta.

Determination

29․Section 5A of the Court Procedures Act 2004 (ACT) provides that “the main purpose of the civil procedure provisions is to facilitate the just resolution of disputes (a) according to law; and (b) as quickly, inexpensively and efficiently as possible”.

30․Rule 501 of the Court Procedures Rules further provides that:

All necessary amendments of a document must be made for the purpose of—

(a)deciding the real issues in the proceeding; or

(b)correcting any defect or error in the proceeding; or

(c)avoiding multiple proceedings.

31․Where r 501 is sought to be invoked, it must be shown that the “controversy or issue was in existence prior to the application for amendment being made”: AON Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 at 208 [82]. Where the issue is entirely new, an application for amendment should be dealt with under rule 502.

32․Rule 507 of the Court Procedures Rules provides that a party may only amend the party’s pleadings after the close of evidence.

33․In The Owners - Units Plan 3550 v BCA Certifiers Australia Pty Ltd [2021] ACTSC 3 at [16], McWilliam AsJ (as her Honour then was) made the following observations about rule 507:

Rule 507 of the Rules provides that where the pleadings have closed, the plaintiffs require leave to amend their pleading. In determining whether to grant leave, the Court considers what is in the interests of justice by reference to factors such as the nature of the amendments, any delay in seeking to amend the claim, the reason for the delay, and any prejudice that might arise, along with efficient case management objectives and regard to court resources. Considerations of this kind were all discussed in AON Risk Services Australia v Australian National University (2009) 239 CLR 175 (AON v ANU), in particular at [24] and [91]-[103].

34․In the present case, the application for an amendment is made very late. It is sought to be made after the close of evidence, and after the exchange of written submissions.

35․However, the amendment arises in part out of evidence as it fell at trial. Further, it must be borne in mind that an application to amend was not made by the plaintiff at earlier point in the proceedings because, when the issue was first raised during the proceedings, the defendant’s counsel conceded that the plaintiff’s alternative case did not catch the defendant by surprise, and did not contend that amendment of the pleadings was required. Although the plaintiff could have acted more swiftly to seek leave to amend once the issue was raised in the defendant’s submissions, no prejudice has been occasioned to the defendant as a result of the plaintiff not seeking leave to amend as soon as she received the defendant’s submissions.

36․The amendments sought are within the broad scope of the case as originally pleaded by the plaintiff. The amendments are required to provide clarity in the pleadings, and to ensure that the real issues in the proceedings can be determined by the Court.

37․The plaintiff accepts that the defence will need to be amended. Such an amendment would in any event have been permitted under r 512 of the Court Rules. 

38․The prejudice that arises can be addressed through the recalling of witnesses on the discrete points raised in the plaintiff’s alternative case. 

39․I do not consider that the amendments will cause the case to be expanded in a way that causes the litigation to become unduly protracted.  The delay that will be occasioned by granting the plaintiff leave to amend is not so great as to be determinative against the alternative case being squarely pleaded, even accepting that a new defence of contributory negligence arises.

40․Taking each of the above matters into account, the appropriate course is to grant leave to amend.  

41․I will make orders granting leave to the plaintiff to file and serve the Amended Statement of Claim. In view of the proximity of these orders to the Christmas and New Year shutdown period, I will grant leave to the defendant to file and serve an Amended Defence on or before 2 February 2024. I will list the matter before the Registrar in early February 2024 for the matter to be listed for further hearing. On that occasion, the legal representatives for both parties must be in a position to inform the Registrar of the evidence which is intended to be adduced at the further hearing, and to accept a hearing date.

Orders

42․For the above reasons, the following orders are made:

(1)Leave is granted to the plaintiff to file and serve an Amended Statement of Claim in the form contained in MFI “3”. The plaintiff is to file and serve the Amended Statement of Claim on or before 4pm on 20 December 2023.

(2)Leave is granted to the defendant to file and serve an Amended Defence on or before 4pm on 2 February 2024.

(3)The proceedings are listed before the Registrar on 6 February 2024 for a further hearing date to be set.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 19 December 2023