Hundt v Slater & Gordon
[2003] WASC 248
HUNDT -v- SLATER & GORDON & ORS [2003] WASC 248
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 248 | |
| Case No: | CIV:2620/2002 | 24 NOVEMBER 2003 | |
| Coram: | MASTER SANDERSON | 15/12/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Statement of claim struck out | ||
| B | |||
| PDF Version |
| Parties: | ROBYN HUNDT SLATER & GORDON PETER GORDON STEPHEN PLUNKETT PAUL HENDERSON NICHOLIS STYANT-BROWNE PAUL MULVANY ANDREW GRECH |
Catchwords: | Practice and procedure Application for extension of time to bring strike-out application Application to strike out statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Chappel v Hart (1998) 195 CLR 232 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 178 ALR 577 Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Bond v John Fairfax Publications Pty Ltd & Anor [2001] WASC 336 Bruce v Odhams Press Pty Ltd [1936] 1 KB 697 Byrne v Twaddle & Anor [2001] WASC 325 Chandler & Ors v Water Corporation [2001] WASC 166 Charlie Carter Pty Ltd v SDAE of WA (1987) 13 FCR 413 Darvall McCutcheon (A Firm) v HK Frost Holdings Pty Ltd (In Liq) [2002] VSCA 85 Davy v Garrett (1877) 7 Ch D 473 Knowles v Robert (1888) 38 Ch D 263 Rassam v Budge [1893] 1 QB 71 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Consolidated with CIV 1485 of 2002
- Plaintiff
AND
SLATER & GORDON
First Defendant
PETER GORDON
STEPHEN PLUNKETT
PAUL HENDERSON
NICHOLIS STYANT-BROWNE
PAUL MULVANY
ANDREW GRECH
Second Defendants
Catchwords:
Practice and procedure - Application for extension of time to bring strike-out application - Application to strike out statement of claim - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Extension of time granted
Statement of claim struck out
Category: B
Representation:
Counsel:
Plaintiff : Mr A O Karstaedte
First Defendant : Ms F A E Davies
Second Defendants : Ms F A E Davies
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Phillips Fox
Second Defendants : Phillips Fox
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 178 ALR 577
Case(s) also cited:
Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Bond v John Fairfax Publications Pty Ltd & Anor [2001] WASC 336
Bruce v Odhams Press Pty Ltd [1936] 1 KB 697
Byrne v Twaddle & Anor [2001] WASC 325
Chandler & Ors v Water Corporation [2001] WASC 166
Charlie Carter Pty Ltd v SDAE of WA (1987) 13 FCR 413
(Page 3)
Darvall McCutcheon (A Firm) v HK Frost Holdings Pty Ltd (In Liq) [2002] VSCA 85
Davy v Garrett (1877) 7 Ch D 473
Knowles v Robert (1888) 38 Ch D 263
Rassam v Budge [1893] 1 QB 71
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
(Page 4)
1 MASTER SANDERSON: This is the defendants' application to strike out the plaintiff's statement of claim. The application is brought out of time and leave to bring the application is required. Counsel for the plaintiff submitted that the delay was such that leave ought not be granted. The question of leave was considered in a context of the application as a whole. It is convenient if I deal with the defendants' complaints about the statement of claim before considering the question of whether or not leave ought be granted.
2 In paragraphs 1 and 2 of the statement of claim identify the parties. In par 2(a) reference is made to "Slater & Gordon located in Melbourne". This firm, which is defined in the pleadings as "Slater & Gordon Melbourne" is said to be a firm of barristers and solicitors comprising various parties from time who "acted as the duly appointed agents of the first defendant". By par 2(b) the first defendant is said to be a firm of solicitors practising in Perth who whilst representing the plaintiff "cause, allowed or permitted Slater & Gordon Melbourne to act as their agent for and on behalf of the plaintiff". By par 2(c) the second defendants are said to be partners of Slater & Gordon Melbourne from March 1996 onwards. These partners are said to have represented the plaintiff in certain proceedings. They are also said to have acted "as agents of the first defendant for and on behalf of the plaintiff".
3 The pleading of par 2 is confusing and improper. It is not clear from par 2 and indeed it is not made clear elsewhere in the pleading how Slater & Gordon Melbourne are involved in this claim. In fact, their role in the action was explained by counsel for the plaintiff during the course of his submissions but that explanation is nowhere reflected in the pleading. Perhaps more importantly there are no material facts pleaded either in par 2 or elsewhere in the statement of claim which would justify the conclusion that Slater & Gordon Melbourne acted as agents for the first defendant. Furthermore, it is not clear what is meant when it is said in par 2(c)(iii) that the second defendants acted as agents of the first defendant for an on behalf of the plaintiff. Whether or not one party is the agent of another is a question of law. What a party alleging an agency relationship must do is plead material facts and give particulars of those material facts. That has not been done in this case and it is a fault which bedevils the pleading. It simply must be rectified.
4 By par 3 to par 16 the plaintiff pleads a claim against a plastic surgeon. Although it is not defined as such in the statement of claim I will refer to this claim as "the surgeon claim". By par 3 to par 5 of the statement of claim the plaintiff pleads that in August 1989 she consulted a
(Page 5)
- plastic surgeon in relation to non-malignant lumps which had been detected in both of her breasts. It is pleaded that the surgeon advised that both breasts should be removed and after surgery silicon gel breast implants should be inserted. By par 6 it is pleaded that the plaintiff enquired of the surgeon whether the course of treatment he recommended would result in unsightly scarring and whether the silicon gel breast implants he advised be inserted could harden over time. Paragraph 7 is a plea of matters which it is said the surgeon knew or ought to have known at the time. Paragraphs 7(a) and (b) refer to some 14 matters of which the surgeon is said to have or ought to have knowledge. Given that the plaintiff's enquiries as pleaded in par 6 related to only two matters it is difficult to see why the knowledge of the surgeon pleaded in par 7 is in all respects relevant. Nonetheless that matter can be allowed to pass for the present.
5 By par 8 it is said that the surgeon owed a duty of care to the plaintiff. As pleaded that duty is said to include a requirement that the surgeon inform the plaintiff of all material risks associated with the course of treatment, to inform her of all material detriments and benefits associated with the course of treatment and to communicate that information to her clearly. So what is pleaded is a duty to warn case. It is important that this be borne in mind for what follows.
6 By par 9 of the statement of claim it is said that in August of 1989 the surgeon breached his duty of care owed to the plaintiff. There then follows seven subparagraphs which are said to be particulars of the breach of duty. In fact, they are not particulars at all. They are material facts. How these material facts relate back to the knowledge of the surgeon and the duty to warn is not entirely clear. Furthermore, par 9(c) raises matters which have nothing to do with a failure to warn. In any event, it is apparent that par 3 through to par 9 plead the plaintiff's consultation with the surgeon, the surgeon's advice, the surgeon's knowledge insofar as it related to the plaintiff's condition and the breach of duty as a consequence of the failure to warn.
7 By par 10 it is pleaded that in August 1989 the plaintiff accepted the surgeon's advice and by par 11 that on 6 November 1989 she underwent surgery. By par 12 it is pleaded that on 4 June 1993 the breast implants were removed. By par 13 it is pleaded that following the implantation of the breast implants and "by reason of their defective composition and condition" the plaintiff suffered certain physical and psychiatric injuries. By par 14 it is pleaded that the plaintiff "has suffered and continues to suffer injury, loss and damage". There then follows particulars of
(Page 6)
- physical injury, particulars of psychiatric injury, particulars of treatment, particulars of permanent disabilities, particulars of loss of enjoyment of life, particulars of loss of earning capacity and particulars of special damage. By par 15 it is pleaded that the plaintiff "has been and continues to be reliant upon gratuitous services provided by others". Particulars of the gratuitous services are then provided. Paragraph 16 appears to be a catch all provision. Relevantly, it is pleaded that if the surgeon had not advised her as he did then the plaintiff would not have had the breast implants inserted.
8 The defendants raise a number of complaints about the way in which the surgeon claim is pleaded. Before dealing with the defendants specific complaints it is appropriate to say something generally of the way in which a claim such as the surgeon claim ought be pleaded. A guide to the form of the pleading is to be found in the way in which the High Court approached the issues for determination in Rogers v Whitaker (1992) 175 CLR 479. Dealing with the question of the breach of duty the Court said (at 483):
"The standard of reasonable care and skill required (of a medical practitioner) is that of the ordinary skilled person exercising and professing to have that special skill, in this case the skill of an ophthalmic surgeon specialising in corneal and anterior segment surgery. As we have stated, the failure of the appellant to observe this standard, which the respondent successfully alleged before the primary judge, consisted of the appellant's failure to acquaint the respondent with the danger of sympathetic ophthalmia as a possible result of the surgical procedure to be carried out. The appellant's evidence was that "sympathetic ophthalmia was not something that came to my mind to mention to her.
The principal issue in this case relates to the scope and content of the appellant's duty of care: did the appellant's failure to advise and warn the respondent of the risks inherent in the operation constitute a breach of this duty?"
9 Applying that approach to this case it is necessary for the plaintiff to plead that the surgeon was a plastic surgeon if not specialising in then at least undertaking breast removal and reconstructive surgery using implants. On that basis the present par 4 is deficient although the omissions are relatively easily cured. Once that plea is made a duty of care arises. That duty required the surgeon to warn the plaintiff of the
(Page 7)
- risks inherent in the operation to be undertaken. As a matter of pleading the plaintiff is required to set out the risks inherent in the operation to plead that no warning was given with the result that there was a breach of the duty. Paragraph 5 of the statement of claim is a necessary plea because it sets out the surgeon's advice. It provides the background to the warning that was required. Paragraph 6 on the other hand is irrelevant. It is not a question of the plaintiff enquiring of the surgeon what consequences might flow from the treatment recommended. The duty arises independent of any action on the part of the plaintiff.
10 Paragraph 7 pleads the knowledge of the surgeon. It is problematical that paragraph to this effect is necessary. What is necessary is a plea as to what warning should have been given. It does not matter what the particular surgeon knew or did not know. What is relevant is the warning that the plaintiff says would have been given by an ordinary skilled person exercising and professing to have special skill in plastic surgery.
11 It would seem the plaintiff alleges that there was a failure on the part of the surgeon to warn her of the risks of the proposed surgery. To plead this the plaintiff needs to do no more than refer to what warning should have been given and say whether or not that warning was given. The plaintiff then needs to plead that on the advice of the surgeon she went ahead and had the surgery. That is pleaded in par 10 and there can be no objection to that paragraph. Nor can there be any objection to par 11 which recounts the fact of the surgery. Paragraph 12 is irrelevant and should be omitted. There then needs to be a plea that if the warning had been given by the surgeon the plaintiff would not have gone ahead with the surgery. Although such a plea is presently found in par 16 it is a material fact central to the plaintiff's claim and it ought be pleaded either before the plea of the surgery or immediately thereafter. After all, the fact that the plaintiff went ahead with the surgery consequent, on her case, on the surgeon's failure to warn essential goes to the question of causation. Once that issue has been pleaded the plaintiff can plead loss and damage and provide the appropriate particulars.
12 Turning then to the criticisms of the pleading made by the defendants it is said that the present par 7 does not indicate the matters about which the surgeon was duty bound to warn the plaintiff and relate those risks to the injury ultimately suffered. Reference is made to both Chappel v Hart (1998) 195 CLR 232 and Rosenberg v Percival (2001) 178 ALR 577. Clearly this is correct. There must be a correlation between the risk to the plaintiff about which the surgeon should have informed her and any injury
(Page 8)
- subsequently suffered. That is not the case at present and any revised pleading must pick up this point.
13 In par 13 of the statement of claim there is a reference to the "defective composition and condition" of the breast implants. There is a further matter raised in the pleading which has to do with the alleged defective condition of the breast implants. I will deal with matters related to that plea below. However, in a context of the surgeon claim it is difficult to see how a plea of a defective composition of the breast implant is relevant. It is one thing to say that a plastic and reconstructive surgeon has a duty to warn a patient that a breast implant may leak or in some other way cause the patient difficulty. It is another thing to say that the surgeon knew that the particular implant used was defective. If the latter plea is to be made then it must be made clearly and directly. The present form of the pleading found in par 13 is confusing and embarrassing and cannot stand.
14 In all, for the reasons which I have set out above, I am satisfied that the plea of the surgeon claim needs to be reformulated. I have no doubt that can be done and I will grant the necessary leave to the plaintiff to undertake a redraft of the statement of claim.
15 In par 17 through to par 21 the plaintiff pleads certain matters with respect to five separate companies. For instance, the plea in par 17 refers to Dow Corning Australia Pty Ltd. This company is said to be incorporated in the Australian Capital Territory. By par 17(b) the company is said at all material times to have:
"imported into Australia, sold and/or distributed and/or advertised and/or marketed and/or was a component manufacture of the breast implants in Australia."
- By par 17(c) it is alleged that Dow Corning Australia Pty Ltd was an agent of Dow Corning Corporation and by par 17(d) it is said that Down Corning Australia Pty Ltd was a wholly owned subsidiary of Dow Corning Corporation. All five of these paragraphs are both confusing and unrelated to matters pleaded earlier in the statement of claim. Presumably what is being alleged is that one or more of the five corporations manufactured either completely or in part the breast implants or marketed the breast implants in Australia. But as the pleading stands it is not clear what is alleged against which company.
16 Furthermore, it is nowhere alleged that the breast implants which proved to be defective were manufactured or distributed by one or other
(Page 9)
- of these companies. If allegations are to be made against the manufacturer or distributor of the breast implants then that claim needs to be fully pleaded. There needs to be an allegation of negligence. That is not done. At present par 22 refers to par 3 through to par 21 of the statement of claim and says that a cause of action arose against the corporations. The plea is manifestly inadequate and cannot stand. It will have to be re-pleaded and once again I will give the necessary leave to re-plead.
17 By par 23 the plaintiff pleads that from June 1991 onwards she sought legal advice from the first defendant concerning the failed surgery. By par 24 she pleads that certain advice was given to her by the first defendant "together with Slater & Gordon Melbourne". This plea is clearly embarrassing. I need not repeat what I said in relation to par 2. Either the advice was given by the first defendant or it was given by Slater & Gordon Melbourne and in some way the first defendant is said to be liable for the advice given by the Melbourne firm. If the first defendant is in some way to be liable for advice given by Slater & Gordon Melbourne then the reason why that should be so needs to be pleaded out.
18 Based upon counsel's oral submissions I understand that the plaintiff alleges that the first defendant was negligent in the advice it gave her with respect to the surgeon claim. That claim is pleaded, so it is said in par 24 through to par 31 of the statement of claim. With respect those paragraphs are confusing. It is simply not possible to ascertain what advice was given, why the advice was wrong and what damages have flowed as a consequence.
19 As with the surgeon claim the starting point is the duty of care owed by the first defendant to the plaintiff. The standard of reasonable care and skill is not difficult to articulate. It is that of an ordinary skilled firm of solicitors exercising and professing to have special skills in this case skill and personal injuries claims. That should be pleaded. The scope and content of the duty should then be pleaded. It would seem that the plaintiff alleges that with respect to the surgeon claim the first defendant should have investigated the claim and ascertained whether or not the plaintiff had a cause of action against the surgeon. It seems implicit in the pleading, although it is nowhere stated that the plaintiff maintains she did have such a cause of action. Presumably the plaintiff says that the first defendant was bound to advise her of that fact. The pleading raises the Limitation Act with respect to the surgeon claim and presumably the plaintiff says that it was the first defendant's duty to advise her on what date the claim against the surgeon would become statute barred.
(Page 10)
- Presumably, the plaintiff says, although again it is nowhere stated in the pleading, that properly advised she would have issued proceedings against the surgeon and she would have been successful. Her loss then is the loss of the chance to sue the surgeon. That cause of action is not difficult to plead out. It has not been done in the present pleading.
20 As I understand the position based upon what is in the pleading and what was said by counsel during the course of his submissions there were a number of persons both in Australia and overseas who suffered injuries as a consequence of the failure of breast implants. The pleading mentions two actions – "the Texas Class Action" and "the Australian Action": see pars 24(b) and (c) of the statement of claim. It is alleged that certain advice was given by the first defendant in relation to these two class actions and it appears to be suggested that the advice in relation to those actions was negligently given. If that is so, the position needs to be pleaded clearly. At present, a number of paragraphs contain rolled-up pleas which make it difficult to understand what it is that is being alleged against the first defendant.
21 The second defendants are not mentioned in the pleading until par 32. Based upon counsel's oral submissions it seems that the second defendants became partners in Slater & Gordon Melbourne from about March 1996 onwards. The plaintiff pleads (in par 26(a)) that the surgeon claim became statute barred on 20 August 1995. If that is so, the surgeon action was lost to the plaintiff before the second defendants were engaged by her. It is said that the second defendants breached their duty of care to the plaintiff by failing to advise her that the action had become statute barred. Even if that were the case, it is difficult to see how the plaintiff has suffered any loss. There is nothing in the pleading to suggest what that loss might be. This is an aspect of the claim against the second defendant to which further consideration needs to be given.
22 As to the rest of the claim against the second defendants it appears that the plaintiff says that the second defendants were negligent in advice they gave her with respect to the Texas Class Action and the Australian Action. Once again, the pleading is confusing. The plaintiff needs to set out what advice should have been given by a competent firm of solicitors. She then needs to plead that such advice was not given and the consequences. She then needs to set out what the consequences would have been had the advice been properly given. That logically should lead the plaintiff to plead the loss and damage she has suffered as a consequence of the second defendants' breach of duty.
(Page 11)
23 As I indicated at the beginning of these reasons the application to strike out the statement of claim is brought out of time. But this is one of those cases where the defects of the statement of claim are so extensive as to warrant the grant of leave to bring the strike out application irrespective of case management principles. This action could not possibly proceed to trial on the basis of this statement of claim. That would be in no-one's interests. There is no doubt that a statement of claim can be drawn which properly articulates the plaintiff's alleged cause of action against the first and second defendants. This is not a case where the plaintiff is attempting to plead causes of action which are unknown to the law. But the defendants are entitled to have a coherent pleading to which they can respond. The statement of claim in its present form does not meet that requirement.
24 Accordingly, I would extend time to bring this application. I would strike out the statement of claim and allow the plaintiff to re-plead. I will hear the parties as to the precise form of orders and as to costs.
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