Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital
[2018] ACTSC 53
•6 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital |
Citation: | [2018] ACTSC 53 |
Hearing Date: | 15 December 2017 |
DecisionDate: | 6 March 2018 |
Before: | McWilliam AsJ |
Decision: | See [92] |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 425, 1147 – applications to strike out claim or part thereof by defendants – applications for summary judgment –whether limitation period prevents claim from being pursued – where threshold for summary judgment not met |
Legislation Cited: | Human Rights Act 2004 (ACT) ss 8, 10, 40, 40B, 40C Limitation Act 1985 (ACT) s 16B Court Procedures Rules 2006 (ACT) rr 405, 407A, 407B, 425, 1147 |
Cases Cited: | Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 Commonwealth of Australia v Mewett (1997) 191 CLR 471 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 |
Texts Cited: | Practice Direction No. 2 of 2014 of the Supreme Court of the Australian Capital Territory |
Parties: | Ayan Hassan (Plaintiff) Calvary Private Health Care Canberra Limited t/a Calvary John James Hospital (First Defendant) Dr Phillip Mutton (Second Defendant) Dr Graham Bates (Third Defendant) Dr Elizabeth Gallagher (Fourth Defendant) |
Representation: | Counsel Self-represented (Plaintiff) H Chiu (First Defendant) K Oldfield (Second and Fourth Defendants) C O’Neill (Third Defendant) |
| Solicitors Self-represented (Plaintiff) HWL Ebsworth (First Defendant) Ken Cush & Associates (Second and Fourth Defendants) Avant Law (Third Defendant) | |
File Number: | SC 306 of 2014 |
Introduction
The plaintiff in these proceedings is suing a number of doctors, and the operator of the hospital she attended, in relation to injuries allegedly suffered by her either during or following surgeries conducted in November 2010 and September 2011.
Each defendant is sued in professional negligence. The allegations about the surgery in November 2010 (a hysterectomy), and the circumstances surrounding it, are directed towards the conduct of Dr Mutton and Dr Bates, the second and third defendants respectively.
The allegations about the surgical procedures in September 2011 (the insertion of a sling, anterior mesh, posterior mesh and rectal mesh), concern the fourth defendant, Dr Gallagher.
The surgeries were all done at Calvary John James Hospital (Hospital), and the first defendant has been sued on the basis of both direct and vicarious liability.
In broad compass, the allegations in negligence against the defendants cover:
(a)failure to inform and to seek consent before carrying out the operations that were performed;
(b)failure to warn of complications;
(c)failure to exercise reasonable care and skill;
(d)the performance of surgery for which the particular doctor was either not qualified or competent to perform; and
(e)vicarious liability for tortious acts or omissions committed by Dr Mutton and Dr Bates in November 2010, and by Dr Gallagher in September 2011.
The Originating Claim as amended, filed 8 September 2017, also claims relief under ss 8(2) and 10 of the Human Rights Act 2004 (ACT) (HR Act).
In addition to the very significant complaint that the plaintiff now has a permanent incapacity to bear children, the plaintiff appears to have suffered complications either during or as a result of the surgery/surgeries. She has ongoing pain, had the necessity for further procedures and ongoing use of medication, and alleges that she has suffered mental health consequences.
The applications before the Court
The three interlocutory applications presently before the Court are brought by the defendants, with the second and fourth defendants having common representation. They seek relief variously in the nature of summary judgment or the striking out of either the whole or parts of the plaintiff’s Amended Statement of Claim filed 8 September 2017 (Claim).
The evidence before the Court on the applications included numerous affidavits affirmed by the plaintiff, two affidavits affirmed by Mr Harry Porter McCay, solicitor for the third defendant, on 16 and 24 November 2017, and the affidavit of Mr Timothy Free, chief executive officer of the first defendant, which operates the Hospital, sworn 23 November 2017.
Before dealing with arguments about the pleading specific to each defendant, it is appropriate to deal first with the arguments concerning the limitation periods raised by the first and third defendants.
Whether the operation of the Limitation Act ought be determined on a summary basis
Section 16B of the Limitation Act 1985 (ACT) (Limitation Act) provides:
Other claims for damages for personal injury
(1) This section applies to a cause of action for damages for personal injury other than a cause of action to which section 16 (Compensation to relatives) or section 16A applies.
(2) The cause of action is not maintainable if brought—
(a) if the injury is or includes a disease or disorder—3 years or more after the day the person injured first knows—
(i) that the person has suffered an injury that is or includes a disease or disorder; and
(ii) that the injury is related to someone else's act or omission; or
(b) in any other case—3 years or more after the day the injury happened.
Provisions such as s 16B that impose limitation periods do not extinguish the cause of action; they merely bar the remedy: see Commonwealth of Australia v Mewett (1997) 191 CLR 471; Gabriella Jean Piscioneri v Marek Janusz Michael Reardon [2015] ACTSC 61 (Piscioneri) at [54] and the cases there-cited.
The first and third defendants seek summary judgment, arguing the remedy is statute barred. No defence has been filed in these proceedings, however notices of intention to respond have been filed by the defendants and r 1147(1) of the Court Procedures Rules 2006 (ACT) (Rules) is thus enlivened.
In order to succeed in an application for summary judgment, a very high threshold must be met. The courts exercise extreme caution in making any determination that judgment ought be entered on a summary basis. The relevant principles are contained in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 per Jagot J at [5] and it is unnecessary to repeat them here.
The issue of the application of the limitation period set out in s 16B of the Limitation Act is also expressly raised by the bringing of the present application. In Riches v Director of Public Prosecutions [1973] 1 WLR 1019 (Riches), Lawton LJ explained at 1027:
One of the uncontested sets of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is statute barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, there is no reason to think that the plaintiff can bring himself within the exceptions set out in the Limitation Act... In those circumstances it is pointless for the case to go on so that the defendant can deliver a defence.
16. Riches was cited with apparent approval by Refshauge J in Piscioneri [63]. His Honour went on (at [64]) to cite the following extract from the judgment of Stephenson LJ, with whom Sir Sebag Shaw agreed, in Ronex Properties Ltd v John Laing ConstructionsLtd [1983] QB 398 at 408:
There are many cases in which the expiry of the limitationperiod makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitationswill be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases, what was done in Riches v Director of Public Prosecutions [1973] 1 WLR 1019: strike out the claim and dismiss the action.
Accordingly, when the facts relevant to the question of a limitationperiod expiring are uncontested, then that will be a clear case when it is likely to be appropriate to decide the issue in advance of a substantive hearing and even before a defence is filed, but only upon an application brought by an opponent (as opposed to the Court’s own motion). Cases to similar effect include Hillebrand v Penrith Council [2000] NSWSC 1058, cited in Egan-Green v McLean [2017] ACTSC 48 at [37].
However, where there are matters of contested fact that need to be considered when determining as a fact whether the limitation period has expired, this would usually be appropriately determined in the context of the trial itself: Dunstan v Highman and Ors[2010] ACTSC 133 per Jagot J at [17], who found that once there was an arguable claim contesting whether a provision of the Limitation Act applied, summary judgment was precluded.
These authorities are consistent with Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 (Wardley) where Mason CJ, Dawson, Gaudron and McHugh JJ remarked (at 533) on the undesirability that ‘limitation questions...should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases’.
Although the proceedings are interlocutory, an order for summary judgment is a final order: see Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 at [51] and the cases there-cited.
Following Wardley then, the issue for consideration is whether the present Claim falls into the category of ‘the clearest of cases’ where the limitation question ought be decided in advance of the hearing.
The proceedings were initially commenced on 4 July 2014. The issue under the Limitation Act accordingly only arises in respect of the medical procedures that were undertaken in November 2010. Under s 16B(2)(b) of the Limitation Act, the limitation period would have expired in November 2013.
The first and third defendants contend that the plaintiff knew that a hysterectomy was planned prior to the operation or immediately after the operation. They have tendered in evidence both consent forms and a discharge form that appear to have been signed by the plaintiff. They rely on those documents to say that this indicates the plaintiff’s awareness of the surgical procedure that was being carried out.
However, the plaintiff’s Claim includes the following:
(a)That the first time she knew her uterus had been removed was on 7 July 2011;
(b)That the consent for surgical treatment form was altered, and completed by another doctor;
(c)That the plaintiff was asked to sign the consent form on the night of the surgery without understanding what they were. The consent form does not have plain language or words that could be understood by a lay person; and
(d)The plaintiff was affected by medication, specifically Fentanyl.
On the basis of the pleading, there is a factual contest as to whether the plaintiff’s awareness of what operation had been performed was the date of the operation, or some months later, in July 2011. Accordingly, the documentary evidence relied upon by the first and third defendants to found their application on the limitation question cannot be taken at face value.
I note that English is not the plaintiff’s first language. Her complaints as pleaded are plausible. Even if the word hysterectomy was written on a form, she may well not have appreciated what that meant. If she had known, she may have requested any other form of treatment available to avoid an outcome which prevented her from bearing children in the future.
As the plaintiff’s pleading raises an arguable factual contest about the circumstances in which the surgery came to be performed and the plaintiff’s awareness, this is not a case where the limitation question can be determined in advance of the hearing.
First defendant’s application
In addition to seeking orders for summary judgment in respect of the plaintiff’s allegations arising out of the procedure performed in November 2010 by reason of the operation of the Limitation Act, the first defendant seeks summary judgment on the totality of the causes of action based on its vicarious liability and based directly or indirectly on the HR Act.
The claim based on vicarious liability ought be permitted to proceed
As to the vicarious liability aspect of the pleading, the first defendant relies on Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 (Ellis), per Samuels JA at 590G-601C, Meagher JA agreeing. The first defendant submitted that none of the doctors the subject of these proceedings were employees of the hospital; rather, they were independent contractors.
Although a hospital is bound to ensure that reasonable care is taken in providing the treatment it undertakes to carry out, that duty does not extend to treatment performed by a medical practitioner pursuant to a direct engagement with the patient, and not on behalf of the hospital: Ellis at 604F per Samuels JA (Meagher JA agreeing).
In support of its contention, the first defendant tendered documents through the affidavit of Mr Free, the CEO of the Hospital, recording (among other things) that;
(a)Each doctor was a specialist fellow of their respective medical colleges, practising in their own names and from their own rooms;
(b)Each doctor received accreditation and clinical privileges at the Hospital;
(c)Each doctor agreed to abide by the applicable by-laws of the Hospital;
(d)The relevant by-laws made it clear that appointment as an accredited practitioner does not equate to the doctor entering into a contract of employment or a service contract with the Hospital;
(e)An accredited practitioner is separately insured; and
(f)There was no provision for payment of accredited practitioners by the Hospital.
While those documents do have some force in supporting the first defendant’s position that each doctor was not an employee of the Hospital, I am not satisfied that the evidence establishes this fact so clearly that any argument to the contrary would be manifestly hopeless.
As stated in Ellis at 592D-592E, the question whether a person is the employee of another is a question of fact and one needs to look to all the incidents of the relationship disclosed by the evidence in the instant case. The majority view formed in that case was reached after careful and detailed consideration of all the evidence before the Court following a substantive hearing. The fact was not determined in a summary proceeding on the basis of selected documents put before the Court.
I am not satisfied that the totality of the evidence is before the Court that would enable an assessment of all the incidents or features of the relationship between each of the doctors and the Hospital so as to form a view about whether any doctor was properly described as an employee, let alone such as to find that the doctors were unquestionably independent contractors.
In particular, the evidence of Mr Free was that each of the doctors was an ‘Accredited Practitioner’ of the Hospital. The by-laws of the Hospital in evidence that applied at the time of the 2010 treatment define an ‘Accredited Practitioner’ expressly to include a medical practitioner ‘appointed or employed by the Hospital’.
Further, cl 23(a) of those by-laws was relied upon by the first defendant as making it clear that appointment as an accredited practitioner does not equate to the doctor entering into a contract of employment. However, cl 23(a) does not support that submission. It provides:
Appointment of an Accredited Practitioner shall be conditional on the practitioner:
Complying with the terms and conditions of his or her contract of employment (and/or applicable award or agreement)…
That could well include a contract of employment with the Hospital. The onus on this application being on the first defendant, I am not satisfied that the documents in evidence are conclusive on the issue, and even if they were, I would not have been satisfied that they represented the totality of the indicia to which the Court would have regard in forming a view on the question of the employment relationship between each of the three doctors and the first defendant.
The claim based on the HR Act
As stated above, the Originating Claim as amended on 8 September 2017 includes relief based on ss 8(2) and 10 of the HR Act. While the plaintiff has not specified that this claim is only brought in relation to the first defendant, it is only the first defendant that seeks summary judgment in respect of such a claim.
Section 8(2) of the HR Act provides that everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
Section 10(2) of the HR Act relevantly provides that no-one may be subjected to medical treatment without her free consent.
Claims brought in respect of human rights covered by the HR Act are governed by rr 407A and 407B of the Rules.
Rule 407A requires the pleadings to state the human right/s upon which the party relies, the facts relied upon to assert that the HR Act applies to the proceeding, and the relief sought.
Rule 407B is enlivened in relation to proceedings to which s 40C of the HR Act applies. The pleading must state the human right the plaintiff alleges was breached, the details of the alleged breach, and the relief sought.
The first defendant complains that the Claim does not actually disclose the specific relief sought under the HR Act. That can be remedied by a direction that the plaintiff comply with the Rules, including r 405(3) which requires that if a plaintiff seeks relief in relation to two or more distinct claims based on difference grounds, they must be stated, as far as possible, separately. A direction that the Claim be further amended to comply with rr 405(3), 407A and 407B will be made.
The first defendant then complains that contravention of the HR Act as alleged by the plaintiff does not confer on her a statutory cause of action separate from the tort of negligence. That submission is incorrect. The only authority relied upon by the first defendant was Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134 at [38]-[52] which appears to be obiter comments made by Penfold J in relation to a different provision of the HR Act. The passage relied upon does not assist the first defendant.
Section 40B of the HR Act expressly provides that it is unlawful for a public authority to act in a way that is incompatible with a human right.
Section 40C then applies to any claim that a public authority has acted in contravention of s 40B of the HR Act.
Section 40C(2) expressly permits a person to start a proceeding in the Supreme Court against the public authority, or rely on the person’s rights under the HR Act in other legal proceedings.
Under s 40C(4) of the HR Act, the Supreme Court may grant the relief it considers appropriate except damages. However, the HR Act does not exclude damages sought by way of any claim made outside the HR Act: s 40C(5) of the HR Act.
The first defendant submits that it is not a ‘public authority’. There may be force in that submission given that the first defendant is a corporation and was trading as a private hospital. However, the interaction of the particular corporate structure of the organisation with the statutory provisions of the HR Act is not straightforward. The mere fact that the first defendant is a corporation is not decisive, as can be seen from s40A(1)(e), which requires consideration of who the shareholders are and whether the shareholders include the Territory.
‘Public authority’ is defined in s 40 of the HR Act to include (among other things) an entity whose functions include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise). Section 40A of the HR Act then provides that the function of providing ‘public health services’ is a function taken to be of a public nature.
Questions such as whether the first defendant received public funding, or whether it was performing a function of a public nature for a private purpose or for the Territory, are matters for evidence in a substantive hearing.
I was not taken to any authority on this application that conclusively decided that question. Again, without determining that question on a summary basis, I consider the argument that the first defendant is a public authority to be arguable.
Finally on this point, the first defendant relied upon s 40C(3) of the HR Act, which limits the time which claims may be brought, either under the HR Act directly or in reliance of rights under the HR Act in respect of a different claim, to one year from the time the act complained of happened, ‘unless the court orders otherwise.’
By those last words, the section permits a discretion to the Court to extend the time beyond a year. Such a discretion is unavailable under s 16B of the Limitation Act in personal injury claims of the type brought by the plaintiff here.
Given the Court has a discretion to extend the time in which to bring such a claim, and that there are questions of fact which will inform the Court’s discretion, again, it would be inappropriate to determine the time limitation question in advance of the proceedings.
First defendant’s application to strike out certain parts of the Claim
The remaining aspects of the first defendant’s application filed 16 November 2017 deal with striking out particular paragraphs of the Claim pursuant to r 425(1) of the Rules. It provides:
Pleadings—striking out
(1) The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading—
(a)discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or
(b) may tend to prejudice, embarrass or delay the fair trial of the proceeding; or
(c) is frivolous, scandalous, unnecessary or vexatious; or
(d) is otherwise an abuse of the process of the court.
The first defendant relies on each of those paragraphs.
The first defendant complains that a more specific pleading is required, both in terms of vicarious liability and direct liability.
The first defendant seeks particularisation of the claim on vicarious liability as follows:
(a)The basis upon which the first defendant is said to be vicariously liable for any alleged act or omission of each of the second to fourth defendants; and
(b)The precise ways in which each of those doctors is alleged to have departed from a reasonable standard of skill and care in the provision of medical services; or has committed a different tort.
Similarly with regard to the claim of direct liability, the first defendant seeks that the claim be properly particularised so as to identify:
(a)Which Hospital employee or area committed the alleged act or omission (whether it was nursing, radiological or other staff), so as to differentiate it as an act or omission for which the first defendant is responsible, as opposed to the other defendants;
(b)How that act or omission amounted to a departure from a reasonable standard of skill and care; and
(c)How that particular departure caused injury to the plaintiff.
I accept the submission of the first defendant that without that degree of particularisation, the substance of the plaintiff’s case against it cannot be understood sufficiently to prepare a proper defence. The first defendant is entitled to know the material facts said to establish each element of a claim in negligence against it. While the Claim does disclose an arguable case against the first defendant, such that it would not be struck out in its entirety, a direction requiring the plaintiff to provide the particulars sought by the first defendant by way of a further amended claim will be made.
The final submission for the first defendant was that the Claim is not supported by a report of a medical expert in contravention of Practice Direction No. 2 of 2014 paragraph 13(e) of which is as follows:
Documents to be served on defendant with originating claim
13. In addition to serving the originating claim and statement of claim, the plaintiff must serve on the defendant, either with the statement of claim or as soon as practicable after serve, the following documents:
…
(e) in proceedings alleging medical negligence, a report of a medical expert that supports the plaintiff’s allegations of breach of duty; …
When the Claim was originally filed, the Practice Direction did not apply. The difficulty, as articulated by counsel for the first defendant, is that without the expert medical evidence, the first defendant is unable to understand precisely how the case is put from the outset so as to plead to it.
The failure to seek fully informed consent is not something that requires expert medical evidence. However, I accept the submission that compliance with the Practice Direction will assist the progress of the matter in relation to allegations that the surgery itself (in 2010 and then in 2011) fell short of the reasonable standard of care. The plaintiff will need to tender expert medical evidence in order to establish her claim. This is simply a direction requiring someone with medical expertise to support (not substantiate) the allegations being made. Accordingly, I will direct that the plaintiff file and serve such a report in respect of the allegations made against each of the defendants.
Second and fourth defendants’ application to strike out certain parts of the Claim
The application filed by the second and fourth defendants on 15 November 2017 is also brought pursuant to r 425 of the Rules.
Subrules 425(2) and 425(3) are immaterial to the present application.
The parts of the claim that the second and fourth defendants seeks to have struck out fall into several different categories. These are as follows:
(a)Explanatory statements that are embarrassing in terms of the ability of the second and fourth defendants to plead to them;
(b)References to journal articles that do not plead material facts;
(c)Claims relating to persons who are not named plaintiffs in the proceedings; and
(d)Allegations relating to persons who are not defendants in the proceedings.
For reasons that follow, that application ought succeed in its entirety.
Paragraph 1.14 of the Claim against the second defendant states: ‘That’s why his lawyer is trying to have documents set aside in the subpoenas.’ It is not a material fact relevant to any fact in issue in establishing negligence against the second defendant. The sentence is struck out.
Paragraph 2.1 of the Claim against the second defendant refers to a passage from an academic journal that asserts the human right to consent to a medical procedure, going on to state: ‘A surgeon who performs an operation without his or her patient’s consent commits an assault for which he or she is liable in damages.’ That paragraph does not plead any material fact relevant to the cause of action in negligence and will be struck out.
To the extent that the paragraph is directed towards claiming damages against the second defendant for assault, that is a separate claim which must be pleaded separately in compliance with r 405(3) of the Rules. Accordingly, leave will be given to plead such a claim if that is what the plaintiff is actually intending to allege.
Paragraphs 2.12 and 2.20 of the claim against the second defendant refer to impacts on family members, none of whom are plaintiffs in these proceedings. As they are not material facts relevant to the present Claim, they will be struck out.
Paragraph 2.31 of the Claim against the second defendant states: ‘Even $10 million won’t compensate for what the plaintiff and her family have been through’. As the plaintiff has already separately sought damages, that paragraph is unnecessary and will be struck out.
Paragraph 2.32 of the Claim against the second defendant states: ‘The defendants need to be prosecuted for all they have done to the plaintiff.’ That paragraph is vexatious and/or embarrassing and will be struck out.
Paragraph 3.2 refers to matters relating to subpoenas. It is not a material fact relevant to any cause of action pleaded. It will be struck out.
These rulings are sufficient to dispose of the majority of the matters raised in respect of the fourth defendant, as the same allegations are pleaded against her. Accordingly, paragraphs 1.11, 1.12, 2.1, 2.25, 2.37, 2.38, and 3.2 of the claim against the fourth defendant will be struck out.
Paragraphs 3.7, 3.8 and 3.9 and 3.10 of the claim against the fourth defendant all appear to be questions asked by the plaintiff, seeking answers from the fourth defendant. They may perhaps be more appropriately included as interrogatories. As they stand, they form part of the pleading, are embarrassing, and will be struck out. To the extent that the same paragraphs are replicated in the pleading against the other defendants, they will also be struck out.
The third defendant’s application to strike out the Claim
The arguments raised in the third defendant’s application filed 23 November 2017 are in terms similar to those raised by the first defendant.
The complaint in relation to the Limitation Act has been generally addressed above on the general question of the surgery in 2010. That issue will be determined as part of the substantive proceedings.
However, the third defendant has discerned from the latest amendments to the Claim a number of allegations which he alleges are new allegations against him. The allegations of concern to Dr Bates include:
(a)The third defendant informing the plaintiff that he would perform laparoscopic hysteropexy surgery to fix her retroverted and retroflexed uterus;
(b)Uterus removal without repair or the insertion of support;
(c)A failure to diagnose and a referral to a general practitioner on 5 January 2010;
(d)A failure to prescribe antibiotics on 22 November 2010;
(e)Wrongful provision of Dalacin V cream on 20 December 2010;
(f)Failure to treat back pain; and
(g)Referral to ultrasound.
I accept the submission that it is difficult to understand precisely what are the aspects of the Claim that the plaintiff asserts were negligent acts or omissions, as opposed to a chronology of events.
Due to that lack of clarity, it is difficult to assess whether there are any ‘new claims’ being propounded that would not only attract the application of the Limitation Act, but that would be determined separately in advance of a hearing. Some of those allegations may form part of broader allegations as to the surgery that the plaintiff understood was going to be performed. Other allegations may be in the nature of context to the material case already pleaded, or evidence that the plaintiff relies upon to support her claims.
The Claim insofar as it affects the third defendant is not so opaque as to warrant striking out in its entirety. The deficiencies in the pleading can be addressed by requiring the plaintiff to properly particularise her Claim and to file a medical report in compliance with the Practice Direction, as discussed above.
As with the first defendant, the appropriate course is to direct the plaintiff to file a further amended pleading that sets out:
(a)What were the alleged act/s or omission/s of the third defendant that amounted to a departure from a reasonable standard of skill and care, including any failure to inform or seek consent or warn of complications; and
(b)How that particular departure caused injury to the plaintiff.
Consideration of any allegation that might amount to a new claim ought await the filing of a document where the material facts are pleaded sufficiently to enable the claim against the third defendant to be understood with more precision.
In coming to the above conclusion as to the appropriate course, I have taken into account the fact that the plaintiff is self-represented, and that there has already been found to be an arguable case against the third defendant: see Hassan v Calvary Private Health Care Canberra Limited t/a Calvary John James Hospital & Ors [2017] ACTSC 219.
However, the opportunities given to a self-represented litigant to fairly disclose the specifics of a cause of action such as to enable defendants to properly plead to the case are not unlimited and this may be a matter that is relevant to the exercise of the Court’s discretion in any future interlocutory disputes between the parties.
Costs
The first and third defendants have had mixed success in relation to their applications. The second and fourth defendants have been entirely successful.
Given that the applications were all heard on the one day, with the defendants properly limiting any overlapping submissions both orally and in writing, I do not consider there is any portion of the applications that either can be, or ought be, severed on the question of costs.
The appropriate order is that costs follow the event, so that the plaintiff is to pay the defendants’ costs of the applications, such costs not to be recoverable until the conclusion or resolution of the substantive proceedings.
Conclusion
The application of the Limitation Act must be determined as part of the substantive hearing. No causes of action have been struck out and the Claim has not been struck out in its entirety. However certain paragraphs of the Claim have been struck out, as seen from paragraphs [70]-[71], and [73]-[78] of these reasons. The Claim must also be further amended to comply with the Rules, and the plaintiff must file an expert medical report supporting her allegations against each of the defendants, as seen from paragraphs [44], [60]-[62], [65], [72] and [85] of the above reasons.
The parties are directed to bring in short minutes of order (including a timetable) giving effect to these reasons, or in the event of non-agreement, to file proposed short minutes of order, within 14 days of the delivery of this judgment.
| I certify that the preceding ninety three [93] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 6 March 2018 |
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