James v Hickling
[2004] WASC 235
JAMES -v- HICKLING & ANOR [2004] WASC 235
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 235 | |
| Case No: | CIV:1361/2004 | 28 JULY 2004 | |
| Coram: | MASTER SANDERSON | 16/11/04 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend in terms of minute refused Limited leave to replead | ||
| A | |||
| PDF Version |
| Parties: | KAREN DAWN JAMES RALPH HICKLING PETER EMANUEL PETROS |
Catchwords: | Practice and procedure Application for leave to amend statement of claim Objection as to form of amendment of statement of claim Whether leave ought be granted to plead cause of action when amount likely to be recovered is minimal |
Legislation: | Nil |
Case References: | Breen v Williams (1996) 186 CLR 71 Hall v Petros [2004] WADC 87 Aequitas v AEFC (2001) 19 ACLC 1006 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Cubillo v Commonwealth of Australia (1999) 89 FCR 528 Dempster v Mallina Holdings Ltd [1994] 13 WAR 124 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 Hodgkinson v Simms [1994] 3 SCR 377 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Johnson v Department of Community Services [1999] NSWSC 641 Lovejoy & Ors v Carp [1999] VSC 223 Munt v State of Queensland and Salvation Army (Qld Property Trust) [1996] QSC 241 Nocton v Lord Ashburton [1914] AC 932 Norberg v Wynrib (1992) 92 DLR (4th) 449 Nguyen v Nguyen (1990) 169 CLR 245 Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165 Taylor v McGillivray (1993) 110 DLR (4th) 64 Terrace Counsellors Pty Ltd v Arnold [2002] WASC 90 Warman International Ltd v Dwyer (1995) 182 CLR 544 WA Fork Truck Distributors Pty Ltd v Jones [2003] WASC 102 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RALPH HICKLING
First Defendant
PETER EMANUEL PETROS
Second Defendant
Catchwords:
Practice and procedure - Application for leave to amend statement of claim - Objection as to form of amendment of statement of claim - Whether leave ought be granted to plead cause of action when amount likely to be recovered is minimal
Legislation:
Nil
Result:
Leave to amend in terms of minute refused
(Page 2)
Limited leave to replead
Category: A
Representation:
Counsel:
Plaintiff : Ms F A Stanton
First Defendant : Mr G J Pynt
Second Defendant : Mr G J Pynt
Solicitors:
Plaintiff : McCallum Donovan Sweeney
First Defendant : Pynt & Partners
Second Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Breen v Williams (1996) 186 CLR 71
Hall v Petros [2004] WADC 87
Case(s) also cited:
Aequitas v AEFC (2001) 19 ACLC 1006
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Cubillo v Commonwealth of Australia (1999) 89 FCR 528
Dempster v Mallina Holdings Ltd [1994] 13 WAR 124
Harris v Digital Pulse Pty Ltd [2003] NSWCA 10
Hodgkinson v Simms [1994] 3 SCR 377
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Johnson v Department of Community Services [1999] NSWSC 641
Lovejoy & Ors v Carp [1999] VSC 223
Munt v State of Queensland and Salvation Army (Qld Property Trust) [1996] QSC 241
Nocton v Lord Ashburton [1914] AC 932
Norberg v Wynrib (1992) 92 DLR (4th) 449
Nguyen v Nguyen (1990) 169 CLR 245
(Page 3)
Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165
Taylor v McGillivray (1993) 110 DLR (4th) 64
Terrace Counsellors Pty Ltd v Arnold [2002] WASC 90
Warman International Ltd v Dwyer (1995) 182 CLR 544
WA Fork Truck Distributors Pty Ltd v Jones [2003] WASC 102
(Page 4)
1 MASTER SANDERSON: This is the plaintiff's application to amend her statement of claim in terms of a minute of proposed amended statement of claim, dated 28 June 2004. The defendants oppose leave to amend being granted. On their behalf, it is said that there are defects in the form of the amendments. More fundamentally, the defendants raise substantive objections and say that leave to replead the causes of action the plaintiff seeks to add by the amended statement of claim, should not be permitted. This second submission raises an important point of principle.
2 The claim itself is a medical negligence action. The first defendant is a gynaecologist and the second defendant is a urogynaecologist. It is pleaded that subsequent to the birth of her second child in January 1995, the plaintiff began to suffer progressively worsening urinary incontinence with stress incontinence and sensory urgency or urge incontinence. She was treated in July 1996 and was symptom free until July 1997. Thereafter she suffered a recurrence of stress incontinence and urge incontinence. In October 1998 the plaintiff consulted the second defendant. The second defendant referred the plaintiff to the first defendant and the plaintiff was a patient of the first defendant between November 1998 and November 1999. She makes a series of complaints relating to her treatment by the first defendant. Those complaints are not presently relevant.
3 By par 12, it is alleged that the plaintiff was a patient of the second defendant between October and November 1998 and August 1999 until June 2000. During those periods the plaintiff consulted the second defendant on a number of occasions and on at least five occasions, the second defendant undertook surgical procedures on the plaintiff. By par 13A through to N, the plaintiff makes certain complaints about the procedures performed upon her by the second defendant. None of these paragraphs is objectionable. It is par 13O taken together with what is pleaded in par 15A, 17A, 22A, 22B and 23, to which the defendants object. Because of the importance of these paragraphs, I will quote them in full.
"13O. During the period August 1995 until September 2001:
13O.1 the second defendant was a director and shareholder of IVS Pty Ltd, a company duly incorporated in the State of Western Australia;
13O.2 IVS Pty Ltd was, for the purposes of the Therapeutic Goods Act 1989 (Cth), the sponsor of
(Page 5)
- a device known as the Petros Tunneller, which device was entered on the Australian Register of Therapeutic Goods with product number 106346, under listing 53300, which listing related to IVS surgical instruments and accessories;
- 13O.3 as the sponsor of the Petros Tunneller, IVS Pty Ltd received royalties or other payments in respect of each sale of the Petros Tunneller; and
13O.4 the Petros Tunneller was the device used to perform the IVS procedure.
…
15A. By reason of the matters pleaded in paragraph 13O, taken together with the matters peladed in paragraph 12, throughout the relevant period there existed a fiduciary relationship between the plaintiff and the second defendant which obliged or required the second defendant, when recommending or advising the plaintiff about medical or surgical treatment for her stress incontinence and urge incontinence, to act in the interests of the plaintiff whenever there was a real and sensible conflict between the plaintiff's interest in having access to accurate medical advice as to the competing merits of all medical and surgical treatments available for treatment of her condition, and his own interest in recommending to his patients the IVS procedure in order to earn for IVS Pty Ltd royalties or other payments calculated with reference to sales of the Petros Tunneller.
…
- 17A. Further or alternatively to paragraph 17, in breach of the fiduciary duty pleaded in paragraph 15A, the second defendant, at all times during the relevant period, failed to:
17A.1 disclose to the plaintiff that he had a financial interest (through his interest in IVS Pty Ltd) in the
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- sale and use of the Petros Tunneller and that the Petros Tunneller was the device used to perform the IVS procedure;
- 17A.2 inform the plaintiff of the availability of an alternative surgical procedure for the treatment of urinary incontinence in women being the TVT procedure; and
17A.3 inform the plaintiff that the mesh used in performing the TVT procedure was less likely to be associated with chronic infection leading to vaginal or urethral erosion than tapes of the kind used in performing the IVS procedure.
…
- 22A. If the second defendant had made the disclosure referred to in sub-paragraph 17A.1 or had given the plaintiff the information specified in sub-paragraphs 17A.2 and 17A.3, or alternatively if the second defendant had made the disclosure referred to in sub-paragraph 17A.1 and had given the plaintiff the information specified in sub-paragraphs 17A.2 and 17A.3 when he first recommended the IVS procedure to the plaintiff, or at any time prior to recommending any IVS procedures to the plaintiff, the plaintiff would not have agreed to submit to any IVS procedures or any further IVS procedures.
22B. Alternatively to paragraph 22A, if the second defendant had made the disclosure referred to in sub-paragraph 17A.1 or had given the plaintiff the information specified in sub-paragraphs 17A.2 and 17A.3, or alternatively if the second defendant had made the disclosure referred to in sub-paragraph 17A.1 and had given the plaintiff the information specified in sub-paragraphs 17A.2 and 17A.3 when he first recommended the IVS procedure to the plaintiff or at any time prior to recommending any IVS procedures to the plaintiff, the plaintiff would have sought advice from another specialist urogynaecologist who did not have any financial interest in the Petros Tunneller or the use of the IVS procedure and, had the plaintiff done so, she would have been advised that she
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- should undergo or that she should have undergone the TVT procedure, and had she received such advice she would not have undergone any IVS procedures or any further IVS procedures.
- 23. As a result of the negligence of the first defendant pleaded in paragraph 16 above and/or the negligence of the second defendant pleaded in paragraph 17 above and/or as a result of the second defendant's breach of the fiduciary duty pleaded in paragraph 15A the plaintiff suffered injuries and the development and/or exacerbation and/or continuation of medical conditions ('the injuries').
PARTICULARS
23.1 As a result of the first Hickling procedure, the plaintiff:
23.1.1 did not enjoy significant improvement of her stress incontinence;
23.1.2 suffered persistence of her urge incontinence;
23.1.3 suffered infection of the Type 3 tape used in the procedure; and
23.1.4 suffered in the development of a prolapse of the anterior vaginal wall, known as a cystocele.
23.2 As a result of the second Hickling procedure, the plaintiff:
23.2.1 continued to suffer severe stress incontinence; and
23.2.2 continued to suffer from infection of the Type 3 tape used in the first Hickling procedure.
23.3 As a result of the Petros surgical procedures the plaintiff:
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- 23.3.1 sufffered continuing infection of the Type 3 tape or tapes inserting in the first Hickling procedure and infection of the further Type 3 tapes inserted by the second defendant in the first and fourth Petros procedures and suffered erosion of the infected tapes into her vagina;
23.3.2 suffered the development of a complex urethral fistula;
23.3.3 suffered the development of 2 sinuses in the vagina anteriorly;
23.3.4 suffered scarring of the periurethral tissue and damage to the nerve supply of the urethral sphincter causing the development of intrinsic sphincter deficiency;
23.3.5 suffered recurrent bladder infections; and
23.3.6 suffered ongoing, severe stress incontinence and urge incontinence.
- 23.4 As a result of the Hickling surgical procedures and the Petros surgical procedures the plaintiff developed psychiatric disorders including a chronic adjustment disorder, major depression and anxiety."
4 To these paragraphs the defendants take two objections, which are really the objections as to form. First, it is said that the pleading of the fiduciary duties found in par 15A is defective because what is pleaded is a positive duty. Based upon the High Court decision in Breen v Williams (1996) 186 CLR 71, it is said that fiduciary duties can only ever be proscripted. For that reason, amendment in terms of par 15A in counsel for the defendants' submissions, should not be permitted.
5 There is no doubt that fiduciary duties in this country are prescriptive, not proscriptive: see Breen v Williams (supra) per Gaudron and McHugh JJ at 113. Paragraph 15A appears to plead that there was a positive duty on the second defendant to give the plaintiff certain advice. That cannot be right. Of course, it is open to the plaintiff to plead that as
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- the second defendant had a pecuniary interest in the Petros Tunneller, he was under a duty not to prefer his interest to those of the plaintiff. This is the classic conflict of interest position which is at the heart of so much of the law on fiduciary relationships. While the plea in par 15A is, in my view, inadequate, it is not difficult to imagine it being recast so as to allege that the second defendant had a conflict of interest, with the result that he breached his fiduciary duty owed to the plaintiff. The claim would need to be formulated with great care and precision. As Gummow J said in Breen v Williams, at 135:
"… it is necessary to consider not only whether the relationship between the parties is such as to give rise to fiduciary obligations but also the extent of those obligations in the particular case, 'the subject matter over which the fiduciary obligations extend', so that there may be identified the breach or apprehended breach for which the plaintiff seeks relief from a court of equity."
"As the law stands, the doctor-patient relationship is not an accepted fiduciary relationship in the sense that the relationships of trustee and beneficiary, agent and principle, solicitor and client, employee and employer, director and company and partners are recognised as fiduciary relationships …
However, the categories of fiduciary relationship are not closed, and the courts have identified various circumstances that, if present, point towards, but do not determine, the existence of a fiduciary relationship. These circumstances, which are not exhaustive and may overlap, have included; the existence of a relation of confidence inequality of bargaining power; an undertaking by one party to perform a task or fulfil a duty in the interests of the other party; the scope for one party to unilaterally exercise a discretion or power which may affect the rights or interests of another; and a dependency or vulnerability on the part of one party that causes that party to rely on another.
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- Some aspects of the doctor-patient relationship exhibit characteristics that courts have used to find a fiduciary relationship. For example, from the most mundane consultation with a general practitioner through to the most complicated surgical procedure by a specialist surgeon, a patient is invariably dependent upon the advice and treatment of his or her doctor. Patients also invariably confide intimate personal details about themselves to their doctors. In some circumstances, the dependency of the patient or the provision of confidential information may make the relationship between a doctor and a patient fiduciary in nature. But that does not mean that their relationship would be fiduciary for all purposes."
7 It is not enough then for the plaintiff simply to plead the doctor-patient relationship and based upon that relationship, to claim that it was fiduciary in nature. The plaintiff must plead some facts particular to her case which can be said to give rise to a fiduciary relationship. The material facts on which the plaintiff relies are pleaded in par 13O.
8 The judgments in Breen v Williams actually anticipate that a fiduciary relationship between a doctor and his patient may exist when the doctor has some pecuniary interest in the treatment. Dawson and Toohey JJ said (at 93 - 94):
"Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest - if, for example, the doctor has a financial interest in a hospital or a pathology laboratory - so as to give rise to fiduciary obligations."
9 Gummow J made the same point. His Honour said (at 136):
"The issue here is not that which would arise, for example, where a medical practitioner had advised the patient to undergo treatment at a particular private hospital in which the medical practitioner had an undisclosed financial interest, or where the medical practitioner prescribed one of a number of equally suitable pharmaceutical drugs for the undisclosed reason that this assisted the practitioner to obtain undisclosed side benefits from the manufacturer.
In such cases … the fiduciary principle would monitor the abuse of loyalty reposed in the medical practitioner by the
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- patient. The abuse of duty would involve derivation of a benefit or gain by use or by reason of the fiduciary position or of an opportunity or knowledge which resulted from it."
10 It can be seen then, that while the present form of par 15A is inadequate, a claim for breach of fiduciary duty could be pleaded in such a way that it would be unobjectionable. It is not appropriate in these reasons to attempt to formulate such a claim. It is sufficient to say that it would arise out of the perceived conflict of interest between the doctor recommending a particular treatment when he had a pecuniary interest in that treatment, and the patient undergoing the treatment without being aware of that pecuniary interest.
11 The second objection raised by the defendants is that the claim for breach of fiduciary duty is nothing more than a claim for damages for personal injuries. In other words, the claim is really one based in tort and contract, but dressed up as a claim for breach of fiduciary duty. Based upon what is found in pars 22A, 22B and, in particular, par 23, that is clearly correct. If the plaintiff is able to establish that the second defendant was in breach of his fiduciary duty, then she would be entitled to an account of the profits he derived from use of the Petros Tunneller. Such an account is actually claimed in par (d) of the prayer for relief. But what the plaintiff cannot obtain are equitable damages or equitable compensation equivalent to the damages which might be awarded in tort for negligence or breach of contract. Accordingly, leave ought not be granted to amend in terms of the minute.
12 The question then is whether the plaintiff should be given leave to replead the claim for breach of fiduciary duty. As I have indicated above, the facts are such that it would be possible to plead that there was a fiduciary duty as between the plaintiff and the second defendant, that duty arising as a consequence of the second defendant having a pecuniary interest in the Petros Tunneller.
13 It is pleaded that the plaintiff was not advised of the second defendant's interest in this instrument and therefore a plea of a breach of the fiduciary duty would appear to be open. The plaintiff could then plead that she is entitled to an account. This being the case, everything suggests that leave to replead ought be granted.
14 Nonetheless, the second defendant objects to leave being granted. It seems that when the Petros Tunneller is used, the second defendant receives a royalty of about $15. There is no direct evidence on this point.
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- However, in Hall v Petros [2004] WADC 87, Macknay DCJ dealt with a claim which involved the Petros Tunneller. His Honour noted (at 129) that Dr Petros gave evidence to the effect that he received a royalty of $15 each time the instrument was used. Counsel for the defendant referred to this decision in his oral submissions. It had not been raised in his written submissions. Counsel for the plaintiff took no issue with the evidence. In other words, it is reasonable to assume that each time the second defendant used the Petros Tunneller, he benefited in an amount of $15. Based upon par 12 of the statement of claim, it is alleged that the second defendant operated on the plaintiff on five occasions. It does not appear as though the Petros Tunneller was used as part of the procedure. But even assuming it was, that would mean that the second defendant earned royalties as a consequence of these five procedures of something in the region of $75. So if the plaintiff succeeded in her claim based on a breach of fiduciary duty and the second defendant was called to account to her, he would be liable for a nominal figure. In these circumstances, the second defendant says that the breach of fiduciary claim is of no practical consequence and leave to replead ought not be granted.
15 This gives rise to a point of principle. Is it appropriate to refuse to allow a plaintiff to raise in proceedings a claim which might succeed because the likely outcome is nominal in dollar terms? Not without some hesitation, I have come to the conclusion that it is proper to refuse leave. In the end, it comes down to a question of proportionality. Order 1 r 4B emphasises that the aim of the Court is the timely disposition of litigation. If I were to grant leave to replead to the plaintiff in this case, there would inevitably be further delays and in all likelihood, further arguments about the form of the pleading. But even if that were not the case, when the matter got to trial, the question of the fiduciary relationship would no doubt occupy the time and the attention of the parties. It is not a matter which could be overlooked in preparation for the trial. Yet there is no real benefit to be gained by spending time on that cause of action. As is mentioned by all of the Judges in Breen v Williams, tort and contract adequately cover the field in doctor-patient relationships. In my view, they more than adequately cover the field in the circumstances of this case. There is nothing to be gained by further complicating the action. That is all that granting leave to replead would do.
16 I would refuse leave to replead in terms of the minute of 28 June 2004. Further, I would refuse leave to the plaintiff to plead her claim for breach of fiduciary duty.
17 I will hear the parties as to the precise form of orders and as to costs.
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