McPherson v Australian Capital Territory
[2016] ACTSC 169
•11 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McPherson v Australian Capital Territory |
Citation: | [2016] ACTSC 169 |
Hearing Date: | 8 July 2016 |
DecisionDate: | 11 July 2016 |
Before: | Mossop AsJ |
Decision: | See [57] |
Catchwords: | PRACTICE AND PROCEDURE – Application to withdraw admission made in notice disputing facts – Where admission made without instructions from client – Where admission a mistake based upon a misinterpretation of documentary evidence – Insufficient evidence to indicate that there would be difficulties responding to the withdrawal of the admission – Leave granted to withdraw admission PRACTICE AND PROCEDURE – Application to withdraw implied admissions – Admissions said to arise from a failure to respond to a notice to admit authenticity of documents – Where notice included descriptions containing contentious facts – The seeking of admissions ought to be done expressly in a notice to admit facts, not by embedding facts in a notice to admit authenticity of documents – Leave granted to withdraw admissions PRACTICE AND PROCEDURE – Application to join a second defendant – Where granting leave would require hearing date to be vacated due to delay in making application – Reasons for delay unsatisfactory – Commercial desirability to solicitor of filing a claim early does not outweigh plaintiff’s responsibility to properly investigate case – Claim able to be brought in separate proceedings – Application refused STATUTORY INTERPRTETATION – Limitation Act 1985 (ACT), s 16B – Where plaintiff seeking to join a second defendant – Whether reference to “someone else’s act or omission” requires identification of the particular defendant or simply one of the possible defendants – Not necessary to decide |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 242, 1304 Limitation Act 1985 (ACT), s 16B |
Cases Cited: | AonRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230 Van Gerven v Amaca Ltd [2010] VSC 236 |
Parties: | Pamela McPherson (Plaintiff) Australian Capital Territory (Defendant) Chin-Wing Lai (Interested party) |
Representation: | Counsel S Hausfeld (Plaintiff) L Donohoe SC, N Oram (Defendant) A Muller (Interested party) |
| Solicitors Gerard Malouf & Partners (Plaintiff) ACT Government Solicitor (Defendant) Moray & Agnew (Interested party) | |
File Number: | SC 419 of 2014 |
MOSSOP AsJ:
Introduction
This case is listed for a hearing in the central civil list commencing on 18 July 2016.
The plaintiff alleges that the defendant, which ran the Canberra Hospital, was negligent in relation to the treatment at the hospital on 30 April 2012. The plaintiff alleges that the defendant failed to advise her of certain changes in her lungs that were detectable upon a CT pulmonary angiogram (CTPA). She also alleges negligence in failing to ensure that the CTPA was reviewed and reported on and in failing to follow up the plaintiff upon discharge or subsequent receipt of the formal radiologist report. These failures are alleged to have caused a delay in the diagnosis of her sarcoidosis from April 2012 which is alleged to have caused her damage.
There are presently four interlocutory applications before the Court. In date order those applications are:
(a)an application dated 10 June 2016 by the defendant seeking leave to file an amended defence which raises a defence of contributory negligence;
(b)an application dated 10 June 2016 by the defendant that the plaintiff file and serve a complying statement of particulars pursuant to r 1304 of the Court Procedures Rules 2006 (ACT) (CPR);
(c)an application by the plaintiff dated 23 June 2016 seeking leave to join Dr Chi-Wing Lai as a defendant, granting leave to file an amended statement of claim and the vacation of the hearing date as well as other directions; and
(d)an application dated 7 July 2016 seeking leave to withdraw admissions made by the plaintiff in a notice disputing facts dated 27 May 2016 and implied admissions arising from a failure to respond to a Notice to Admit Documents dated 31 May 2016.
I gave counsel for Dr Lai leave to be heard on the application that he be joined as a party to the proceedings.
Evidence and Ruling on evidence
Eight affidavits were read and a schedule of correspondence tendered on the applications. The affidavits, their exhibited documents and the schedule of correspondence amounted to 800 pages. The plaintiff’s solicitor, Mr Abboud was cross-examined on his affidavit. The parties and Dr Lai made written and oral submissions.
I deferred ruling on the admissibility of the words “and Dr Lai” in paragraph 16(b) of the affidavit of Russell Bayliss dated 1 July 2016. I will not admit those words. The statement appears to be a conclusion drawn by Mr Bayliss based on documentary records and is not admissible as it is opinion evidence. Whether or not Dr Lai received the report of the CTPA is likely to be a significant issue at the trial and it is for that reason that the objection was made. However, the substance of paragraph 16 was not seeking to prove that point, but rather to put forward facts that indicate that the reference to blood tests in the report of Dr Aldridge, a psychologist, dated 21 May 2014 and quoted in paragraph 15 of the affidavit, must have been a mistaken reference to the report of the CTPA. That goes to the knowledge of the plaintiff as at the date of Dr Aldridge’s report and not to the substantive issue as to whether or not the report was sent. While the words objected to are not admitted, the paragraph achieves what it was intended to achieve.
Application to withdraw admissions
The express admissions
On 17 May 2016 the defendant issued a notice to admit facts which was served on the plaintiff on 18 May 2016. The plaintiff was asked to admit that she did not provide Dr Lai with a copy of the report of her CTPA of 30 April 2012. The plaintiff filed a notice disputing facts dated 27 May 2016. It was filed on 1 June 2016 and served shortly after that. In response to the identified fact, the notice disputing facts provided: “The plaintiff worked at the defendant hospital and understood the referral and CTPA would be faxed to her general practitioner prior to her appointment. Which it in fact was.” In other words the fact sought to be admitted was admitted, but the plaintiff added unresponsive material designed to advance her case.
The application
The plaintiff has sought leave to withdraw the admission contained in the words “Which it in fact was” from the notice disputing facts dated 27 May 2016.
Plainly enough the answer given in the notice disputing facts did not properly address the fact that was being asked to be admitted and included the gratuitous statement which is now sought to be withdrawn. Mr Abboud’s evidence in relation to the admission is revealing. The explanation provided by Mr Abboud is that he drafted the answers to the notice to admit facts based upon “what I understood would be the Plaintiff’s evidence in due course, except that the underlined words were mistakenly added by me”. He said that his mistake arose because he was focusing on the proposed claims of contributory negligence that had been foreshadowed at that stage by the defendant. I interpolate that he must have perceived that including an assertion that the CTPA was in fact sent to the plaintiff’s general practitioner would assist in deflecting the defendant’s claim of contributory negligence. He also said that he considered that because the discharge letter contained a reference to the CTPA report being attached that in fact it was. He said “I did not properly consider the implications of the underlined words quoted … above. Nor do I recall specifically checking those words with the Plaintiff.” Thus, somewhat unsatisfactorily, the affidavit does not explain what the mistake made by Mr Abboud was. It appears to have been in fact a number of mistakes:
(a)a forensic mistake in admitting a fact that was adverse to the plaintiff’s case;
(b)a mistake in including the admission without obtaining instructions from his client in relation to the admission;
(c)making and admission based upon a misinterpretation of the documentary evidence.
It was only subsequently that he became aware that the facsimile imprint demonstrating transmission to Dr Lai’s office only occurred on the two pages of the discharge letter and there was no imprint upon the CTPA report, proving on the face of the document that it had been sent. He pointed out that this issue was raised in communications with the solicitors for the defendant on 7 June 2016 when an enquiry was made about how matters were transmitted by facsimile by the hospital.
The evidence of Mr Bayliss described the systems in place at the Canberra Hospital for the sending of documents to general practitioners. His evidence was that if leave was given to withdraw the admissions, then the defendant would need to investigate and obtain evidence as to how Dr Lai received the CTPA report and that may be difficult to do prior to the hearing on 18 July 2016. He anticipated that it would be necessary for the defendant to call three additional witnesses in relation to that issue.
The submissions of the parties
The defendant submitted that “this admission is extraordinary because while the admission actually sought in the defendant’s notice was admitted, this further admission was gratuitously given. It was therefore an entirely voluntary admission. It was clear and unambiguous and it was the truth.” The defendant submitted that if leave was given to withdraw the admission then the further investigation of the evidence in relation to sending of the document may result in an application by the defendant to vacate the hearing date.
The plaintiff submitted, based upon the evidence of Mr Abboud, that the express admission was made by mistake and is actually contrary to the facts.
Decision and reasons
The principles applicable to the withdrawal of admissions are summarised in the decision of Harper M in Reinicke v Neilson [2004] ACTSC 5 at [15]-[18]. Consistently with those principles I accept what de Jersey CJ said in Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 at [20]-[21] that a party should not simply by asking be entitled to withdraw admissions previously made subject to the payment of costs.
In my view, it is appropriate to permit the plaintiff to withdraw the admission.
I accept that the admission was formally given. I accept that the admission related to a matter of significance for the hearing. I accept the prima facie position that a party is bound by the conduct of its lawyer in proceedings even where that conduct falls short of the standard that should be expected in the circumstances.
It is, however, clear that Mr Abboud improperly made the admission on behalf of his client in circumstances where he did not have instructions from his client to make the admission and where it was inappropriate, having regard to the documentary evidence available to him, to make such an admission. He appears to have made the admission on his client’s behalf for the purposes of advancing a defence to a claim of contributory negligence that was anticipated, rather than because what was asserted was true. In my view, adopting such an approach to the making of admissions was inappropriate.
Notwithstanding the submission made by the defendant that it may seek to vacate the hearing date in order to undertake further investigations, the evidence was not sufficient to indicate that there would in fact be difficulties responding to the withdrawal of the admission. Nor did it indicate the steps that were not taken by the defendant since early June 2016 as a result of reliance upon the express admission. I accept that the absence of such evidence may have arisen from the short notice given of the application to withdraw the admission. If the withdrawal of the admission does create difficulties for the defendant because of its reliance upon the making of the admission then those are difficulties which will need to be dealt with if they arise and will not necessarily compel such a disruptive response as vacation of the hearing.
Application in relation to implied admissions
The application in relation to implied admissions arises from the fact that the defendant sent a “Notice to Admit Documents” dated 31 May 2016 to the plaintiff on 1 June 2016. The document purported to be the form for a “Notice to Admit Authenticity of Documents”. It sought that the plaintiff “admit, for the proceeding only, the authenticity of each of the documents stated below”. However, in seeking admissions as to the authenticity of documents the drafter of the form incorporated into the description of the documents facts which may be said to give rise to implied admissions. For example paragraph (d) of the notice identified the relevant document as follows:
The document that is attached hereto and marked “D” is a true copy of the pulmonary angiogram (CTPA) report dated 30 April 2012 that was sent via facsimile from the Canberra Hospital to Dr Chi-Wing Lai on 1 May 2012.
Because potentially contentious facts are embedded within the description of the document, the admission of the authenticity of the document either actively or by a failure to file a notice disputing authenticity of documents might be taken to admit not only the authenticity of the document but the facts embedded in its description.
Explanation for failure to respond
The evidence of Mr Abboud in relation to the notice involves a vague explanation of the reason for the failure to respond within 14 days. Mr Abboud, however, accepted that the failure to respond was an oversight for which he took full responsibility.
Submissions
So far as implied admissions are concerned, the plaintiff submitted that none of the relevant admissions were sufficiently clear to be useful and in relation to both categories of admissions they were all quite recent and there can have been little, if any, reliance upon them.
The defendant (understandably) focused a degree of criticism upon the adequacy of Mr Abboud’s explanation for the failure to respond to the notice to admit documents. It submitted that the late application to withdraw the admissions is only explained by the realisation of the significance of the admissions upon receipt of the defendant’s written submissions dated 1 July 2016.
Decision and reasons
I observe at the outset that if admissions are to be sought and relied upon it is desirable that this be done expressly by a notice to admit facts so that it is clear precisely what the responding party is being asked to address and not by embedding facts in what purports to be a notice to admit authenticity of documents. Putting the responding party fairly on notice will enhance the fairness of the proceedings and avoid arid technical disputes as to what precisely has been admitted.
In my view, it is appropriate to give leave to withdraw any implied admissions made by the failure to respond to the notice to admit documents. That can most effectively be done by permitting the plaintiff to file and serve the notice disputing authenticity of documents which is Annexure H to Mr Abboud’s affidavit of 6 July 2016.
I accept the defendant’s submission that the explanation provided by Mr Abboud for the failure to respond to the notice to admit documents is inadequate. Vagueness in affidavits explaining errors made by a party is inconsistent with the proper conduct of proceedings not only because it fails to properly inform the Court of the true circumstances of the case, but also because it is more likely to provoke an application for leave to cross-examine the deponent, unnecessarily lengthening interlocutory applications. Notwithstanding the criticisms of Mr Abboud, both in relation to the underlying error and his failure to properly explain it, I do not consider that it would be appropriate to permit significant issues at the trial to potentially be determined as a result of a contentious implied admission arising from the failure to respond to a notice to admit the authenticity of documents which embedded facts in the description of the document in a manner that I have described above. If the plaintiff was not permitted to respond to the notice in the manner proposed then there would inevitably be argument at the trial as to whether or not it was open to procure such admissions in a notice to admit the authenticity of documents. Rather than let a significant issue at the trial be determined by the outcome of a technical dispute over the operation of the rules to the notice that has been given, it is in my view better to allow the substance of the factual issue to be determined. Having regard to the date of the giving of the notice and the date by which the notice was required to be responded to, it is clear that there was only a short period during which the defendant might have been operating under some misapprehension about what was admitted and what was not.
Application to join Dr Lai and vacate the hearing date
What the plaintiff would allege if Dr Lai was joined
If leave is granted to join Dr Lai, the plaintiff proposes to allege against the doctor that the doctor failed to:
(a)read the second discharge letter dated 1 May 2012;
(b)properly investigate and follow-up the CTPA scan report;
(c)obtain further scans in May 2012;
(d)“advert to and investigate the plaintiff against the risk of sarcoidosis as evident on the CTPA scan” (sic);
(e)obtain a diagnosis of sarcoidosis until 5 December 2012.
It can therefore be seen that the pleading against Dr Lai would cover the situation if the scan report was provided on 1 May 2012 as well as the situation that it wasn’t.
The reasons the application is made now
The reason put forward by the plaintiff for only seeking to join Dr Lai at this stage was because the potential for a claim against the general practitioner was only disclosed when the reports of Dr Spain, a consultant emergency physician, dated 30 November 2015 and 12 April 2016, and of Prof Anthony Brown, a senior staff specialist in emergency, dated 17 May 2016, were served by the defendant on 27 May 2016.
The evidence of Mr Abboud and Mr Bayliss
Mr Abboud gave evidence that upon obtaining instructions from the plaintiff he understood the claim to be against the defendant. Notwithstanding that, he requested Dr Lai’s records. His evidence was that Dr Lai did not respond and he did not pursue those clinical notes because he had documents from other sources. There is evidence, however, in the affidavit of Dr Lai’s solicitor, that Dr Lai’s practice sent an invoice to Mr Abboud’s firm seeking payment for the cost of production which was not paid or otherwise responded to. Mr Abboud gave evidence that he has been unable to find a copy of that invoice. The end result is that although a request was made of the treating general practitioner, nothing was done at an early stage of the proceedings to ensure that those records were produced and examined for the purposes of assessing the plaintiff’s claim or preparing the case for hearing.
Further, Mr Abboud explained that he had available to him from July 2014 the expert evidence of Associate Professor Raftos that the defendant negligently failed to appropriately manage the plaintiff and that appropriate management would have resulted in an earlier diagnosis.
He stated in his affidavit that “Nothing in the Defence suggested liability rested with the General Practitioner”.
The evidence he gave was consistent with the plaintiff having provided instructions that the defendant was liable and Mr Abboud attempting to get a claim on against that defendant as quickly as possible. Once he had Associate Professor Raftos’ report he considered he was in a position to commence proceedings against the hospital and did not consider that he needed to wait for any notes from, or further investigate the history in relation to dealings with, the general practitioner. He was “satisfied where we were heading”. He did not get bogged down in the detail because “if you’re just so bogged down in trying to be completely thorough and everything else, you won’t make any money. You’ll be lucky to get four or five cases on a year.”
The affidavit of Mr Bayliss demonstrated that the defendant’s expert reports were served in accordance with the timetable consented to by the plaintiff and that it was only possible to obtain expert reports in reply to those of the plaintiff after the plaintiff had served her reports. Most significantly that occurred in February 2016 when Associate Professor Raftos’ report, which had been obtained by the plaintiff in July 2014, was served. It was the reports of Dr Spain and Professor Brown which expressed opinions consistent with Dr Lai being the one at fault. Further, the evidence of Mr Bayliss demonstrated that the plaintiff herself had told Dr Aldridge prior to May 2014 that Dr Lai may have had the CTPA report but not paid attention to it. That was consistent with what she told Dr Saboisky, a doctor qualified by the defendant in early 2016.
16B issue
In opposition to an order joining him in the proceedings, Dr Lai (supported by the defendant) submitted that any claim against him would be statute barred. That was based upon the argument that s 16B of the Limitation Act 1985 (ACT) had the effect that the limitation period expired no later than December 2015. A claim against Dr Lai would only be commenced at the point when he was joined as a party to the proceedings: r 242(2). The joinder may not relate back to an earlier date so as to undermine a limitation defence: r 242(3). As a consequence, the claim against him was out of time.
Section 16B provides, relevantly:
(2) The cause of action is not maintainable if brought-
(a) if the injury is or includes a disease or disorder-three 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: …
Dr Lai pointed to the assertions by the plaintiff in December 2012 that the hospital caused an aggravation in her sarcoidosis by reason of the delay in diagnosing that condition. He submitted that because she knew at that stage that her injury was related to the hospital’s act or omission that was sufficient to trigger the running of time for the purposes of s 16B(2)(a).
On the other hand, the plaintiff contended that the reference to “someone else’s act or omission” should be interpreted as a reference to the proposed defendant’s act or omission. On the plaintiff’s argument, this would mean that it was necessary for a defendant to succeed under s 16B to show that the plaintiff knew that the disease or disorder was related to the defendant’s act or omission rather than simply someone else’s act or omission.
Dr Lai contended that his interpretation was consistent with the ordinary meaning of the words used by the legislature. It also appropriately accommodated the possibility of latent conditions because after those conditions had been manifested and the plaintiff recognised that they were due to the act or omission of some identified person, time would start to run. If, however, time only started to run when the particular defendant in question was identified, then s 16B would have a very different operation and would, in many cases, permit the limitation period to extend for many years beyond the three-year period after the disease or disorder had manifested itself and the plaintiff first realised that someone else may be at fault.
The plaintiff, on the other hand, submitted that it was necessary to give the words “someone else” a qualified meaning because, unless qualified, it might cover the situation where the “someone else” had not been able to be identified. She then submitted that if some qualification was necessary there was no reason why a qualification limiting the someone else to the defendant in question should not be imposed. The authorities pointed to by the plaintiff were Van Gerven v Amaca Ltd [2010] VSC 236 at [12]-[13] and Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230 at [13], [16], [30], [35]. Both of these were Victorian cases on a similar, but not identical, provision and hence must be treated with caution. The former case supports the proposition that “some person” (as per the Victorian provision) must be an identified person, but is otherwise against the interpretation for which the plaintiff contended. That is because Williams J held that the reference to “some person” need not be the prospective defendant. The passages from the latter case did not involve any specific consideration of the issue that arises here and are not of assistance.
It is not in my view essential for the purposes of determining this application to finally determine whether or not Dr Lai has a limitation defence to any claim brought by the plaintiff. In those circumstances it is not appropriate to do so. That is because:
(a)the application was brought on at relatively short notice and required a decision in a short period; and
(b)the question is one of general importance in relation to the operation of s 16B and which, so far as the parties could identify, was not the subject of any clear authority.
I therefore determine this application on the basis that if proceedings are brought against Dr Lai he is likely to plead a limitation defence, that the facts disclose that the plaintiff was aware that she had a cause of action against someone no later than December 2012 when she made her complaint to the Canberra Hospital and that, although the plaintiff’s position can be identified as arguable, the defendant has an apparently strong argument that “someone else” in s 16B means “someone else” and does not mean “the defendant”.
Decision and reasons
The reasons for the late application appear to be an inadequate investigation of the circumstances surrounding the plaintiff’s treatment by the plaintiff and her solicitor. It is apparent from Mr Abboud’s evidence that the case which he was directed to by the instructions received from the plaintiff was one against the defendant and he prioritised the early filing of a claim over full investigation of the facts. It is also apparent that he failed to obtain the records of the general practitioner at an early stage. It appears clear that having identified a cause of action, he did not investigate any alternative causes of action and only when directed to those alternative causes of action by evidence served by the defendant, giving rise as it did to the prospect that the plaintiff’s claim may fail, did he contemplate them. It is important to note that the nature of this case is one where the relationship between the hospital and the general practitioner was such that it would have been reasonable to give early consideration as to whether or not a cause of action existed against the general practitioner. Further, when the defendant filed its defence it should have been clear, having regard to the terms of that defence, that it was asserting that the CTPA report had been sent to Dr Lai on 1 May 2012, a further reason to obtain those notes and give consideration to whether or not the plaintiff had a cause of action against Dr Lai.
All of these matters would not have been matters of great significance if the plaintiff did not seek, shortly before the trial, to join Dr Lai and vacate the hearing date. However, in that context the focus of the plaintiff’s case on the defendant and the failure to have taken steps to investigate the facts as they related to the conduct of the general practitioner or consider any claim against the general practitioner at an early stage becomes important. Needless to say the commercial desirability for Mr Abboud to get a claim on quickly without getting bogged down in the detail so that he is able to make money is not a consideration consistent with the proper administration of justice. It would be inconsistent with the proper administration of justice to accommodate the plaintiff’s failure to properly investigate her potential causes of action in circumstances where that imposes burdens and costs on other parties and upon the Court.
The circumstances of this case are substantially different to that in AonRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon) in that although leave is being sought to file an amended statement of claim, that is being driven by the proposed addition of a new defendant in the proceedings. It is not a case of the plaintiff wishing to alter her case against one defendant, but rather one involving a new case against a new defendant. The case against Dr Lai will still be able to be brought even if leave is not granted to join him in these proceedings. It will remain open to the plaintiff to bring a claim against Dr Lai in separate proceedings. In those proceedings the plaintiff is likely to be met by a limitation defence. Because I have not finally determined the construction issue relating to s 16B it will be open to the plaintiff to contend for her interpretation of that section. From the point of view of the administration of justice, the difficulty with separate proceedings is that they may increase overall the cost of the court proceedings and take up greater court time than would be the case if both claims were dealt with in a single set of proceedings. They also create the potential for inconsistent findings. It is the undesirability of such matters which must be weighed against the undesirability of a late vacation of the hearing date and the substantial delay that will be involved in resolving the claim against the Territory if the resolution of that claim must occur at the same time as the resolution of a claim against Dr Lai.
In Aon, the judgment of the plurality specifically addressed whether the desirability of finalising litigation applied equally to defendants who were not natural persons. At [101] the plurality said:
In Ketteman Lord Griffiths recognised, as did the plurality in JL Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155. So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.
In my view, the principles articulated as applying to natural persons and corporations also apply in relation to government entities. While perhaps not with the same degree of acuteness as a defendant who is a natural person it must be recognised that, as with a corporation, the pendency of litigation involves for a government entity stresses, strains and costs which cannot be ignored in the making of case management decisions.
I am satisfied that this is a case in which the administration of justice is best served by refusing leave to join Dr Lai and refusing to vacate the hearing date. The explanation for joining Dr Lai at this stage is not a good one and the effect of vacating the hearing date will involve a substantial delay and increased costs to the existing defendant. The refusal of leave to join Dr Lai to these proceedings will not prevent the plaintiff from bringing a claim against him in separate proceedings. Those factors appear to me to outweigh the desirability of having all claims arising out of the diagnosis of the plaintiff dealt with in a single set of proceedings. The fact that the proceedings are in a central civil list and may not be reached is not a factor which at this stage tells against this approach. If in fact the matter is not reached, then the relevant case management considerations will be altered. However, at this point the matter is listed for hearing and the time and resources of the parties and the Court are devoted to that hearing.
Amendments to the statement of claim not objected to
There are certain minor aspects of the amendments to the statement of claim which are not objected to. I describe them by reference to the paragraph numbering in the draft amended statement of claim attached to Mr Abboud’s affidavit dated 23 June 2016. The amendments are the deletions of certain particulars provided under paragraph 14 of the claim. They are the deletion of:
(a)particulars (q) and (u) of the particulars of “Injuries and Disabilities suffered by the Plaintiff”;
(b)the “Particulars of the claim for economic loss”;
(c)the “Particulars of Employment”; and
(d)the “Particulars of past and future gratuitous domestic assistance”.
Other amendments to the statement of claim
There were some other amendments to the statement of claim not apparently related to the joinder of the second defendant in relation to which the first defendant made submissions. Once again I describe them by reference to the draft amended statement of claim attached to Mr Abboud’s affidavit. They were particulars under paragraph 7. In relation to particular (i) the plaintiff sought to add the words “against the risk of sarcoidosis”. The defendant submitted that the addition did not make sense because the plaintiff already had sarcoidosis. In my view the amendment should be allowed because it is clear in their context what is intended is an allegation that the plaintiff should have been advised to undertake further urgent investigation against the risk that she suffered sarcoidosis rather than some future risk that she might suffer sarcoidosis.
The other particular which was objected to was (v): “failure to reach a diagnosis in respect to the Plaintiff’s presenting complaint prior to discharge.” Senior counsel for the Territory submitted that there was simply nothing to support this allegation in the material that had been served and hence it was inappropriate to permit the allegation to now be raised. If the existing expert evidence does not raise that issue then prima facie it would not be appropriate to permit it to now be raised. That is because it would be inappropriate to permit the plaintiff to raise substantial new allegations requiring further expert opinion so close to the hearing. However, I will need to hear the parties further on this point if, in the light of my decision on the other aspects of the applications, it is still sought to make this amendment.
An amendment is sought to be made to the particulars of negligence in paragraph 13 of the statement of claim so as to add “Failure to provide, along with their facsimile on 1 May 2012, a copy of the CTPA report to the Second Defendant.” If the plaintiff is permitted to withdraw her admissions as to receipt of the CTPA report then this would be an amendment which it would be appropriate to allow, save that “Second Defendant” should be replaced with “Dr Lai”.
Conclusion
In the light of the conclusions reached above the position in relation to the various applications is as follows.
In relation to the application dated 7 July 2016 seeking leave to withdraw admissions made by the plaintiff I will make orders 1, 2, 3 and 4 except substitute 12 July for 15 July in order 3.
In relation to the application by the plaintiff dated 23 June 2016 seeking leave to join Dr Chi-Wing Lai as a defendant, granting leave to file an amended statement of claim and the vacation of the hearing date as well as other directions, I will dismiss that application with costs. I will, however, hear the plaintiff further as to whether she wishes to make the amendments to her statement of claim to which the defendant has not objected and those which are objected to by the defendant which I have indicated that I would allow. What is done in relation to these amendments will influence what is to be done in relation to the application dated 10 June 2016 by the defendant that the plaintiff file and serve a complying statement of particulars pursuant to r 1304 of the CPR. I will hear the plaintiff and Dr Lai in relation to the costs of Dr Lai.
In relation to the application dated 10 June 2016 by the defendant seeking leave to file an amended defence which raises a defence of contributory negligence, I will hear the parties further in the light of my decision as to how best to deal with this application.
Orders
The orders of the Court that I make at this stage are:
1. Orders 1, 2, 3 and 4 application in proceedings dated 7 July 2016 except substitute 12 July for 15 July in order 3; and
2. The application in proceedings by the plaintiff dated 23 June 2016 is dismissed with costs.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 14 July 2016 |
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