MD v Sydney South West Area Health Service

[2009] NSWDC 22

CITATION:	MD v Sydney South West Area Health Service [2009] NSWDC 22
HEARING DATE(S):	9 - 11, 13 February 2009
EX TEMPORE JUDGMENT DATE:	13 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Application for leave to file amended defence refused
CATCHWORDS:	PRACTICE AND PROCEDURE - Pleading - whether defence under Civil Liability Act 2002 s 5O must be pleaded and particularised
LEGISLATION CITED:	Civil Liability Act 2002 Workers Compensation Act 1987 Uniform Civil Procedure Rules
CASES CITED:	Dobler v Halverson (2007) 70 NSWLR 151 Rogers v Whitaker (1992) 175 CLR 479 Port Stephens Council v Theodorakakis [2006] NSWCA 70 Benton v Scott's Refrigerated Freightways [2008] NSWCA 143
PARTIES:	MD (Plaintiff) Sydney South West Area Health Service (First Defendant) Ian Fulcher (Second Defendant)
FILE NUMBER(S):	215 of 2007
COUNSEL:	A Lidden SC with E E Welsh (Plaintiff) K Burke (First and Second Defendant)
SOLICITORS:	Bryden's Law (Plaintiff) TressCox Lawyers (First and Second Defendant)

JUDGMENT

1 HIS HONOUR: This matter arises because when the defendants sought to tender the reports of Dr Reid and Dr Boshell, objection was taken on the basis that those reports largely addressed a defence raised under s 5O of the Civil Liability Act and that defence had not been pleaded. Therefore, in the plaintiff’s submission, those reports were not relevant and therefore not admissible.

2 Before I go any further, I should comment. I note that Dr Reid is a very close colleague of the second defendant, in that they are both members of the same department at the same hospital, and while it is up to the defendant to obtain expert opinion from whoever he likes, I must say that that was something that struck me, notwithstanding that Dr Reid, I am sure, acknowledged that he read the code of conduct, but there is a question of the appearance of fairness and lack of bias. I simply want to raise that as a matter of comment.

3 Section 5O says this, and I will paraphrase it, I think, because it is quite a long section and its purpose has been referred to by Ipp JA in the Court of Appeal in the case of Dobler v Halverson (2007) 70 NSWLR 151, particularly at paras 54 to 64 where his Honour, with whom the other members of the Court agreed, gave a history of s 5O. This section was introduced following a review of the law of negligence, and was intended to modify the result of a High Court decision in Rogers v Whitaker (1992) 175 CLR 479. I think I should read the section because it is important.

(1) A person practising a profession ( a professional ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

4 What the Court of Appeal made of that section in Dobler v Halverson is that it does provide a defence and that, I think, is beyond doubt. At para 60, Ipp JA said:

“The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted, will (subject to rationality) mean that he escapes liability.”

5 That, I think, clearly establishes who must raise the defence. However, the defence has not been pleaded.

6 In this case both defendants deny negligence, but the plaintiff draws my attention to Uniform Civil Procedure r 14.14. This Rule reads as follows:

General rule as to matters to be pleaded specifically

(1) In the statement of claim, the plaintiff must plead specifically

any matter that, if not pleaded specifically, may take the defendant by surprise.

(2) In a defence or subsequent pleading, a party must plead specifically any matter:
(a) that, if not pleaded specifically, may take the opposite party by surprise, or
(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
(c) that raises matters of fact not arising out of the preceding pleading.

(3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.

7 There is no question here that the reports of Dr Reid and Dr Boshell were served well in advance, so the plaintiff cannot be said to be taken by surprise. However, because of the effect of s 5O, if the defence succeeds, it is clear that the defendant alleges that the matters of professional practice, to which Dr Reid and Dr Boshell refer, would make the plaintiff’s claim not maintainable. They also raise matters of fact not arising out of the preceding pleading, and, in my view, Rule 14.14 makes it quite clear that a defence under s 5O must be pleaded and particulars must be given.

8 If that were not just my opinion, it is, I consider, reinforced by the decision of the Court of Appeal in Port Stephens Council v Theodorakakis [2006] NSWCA 70. There, the judgment of the Court was given by Bryson JA, with whom Ipp and Giles JJA agreed. His Honour said at para 15:

“If s 42 [and he is referring to s 42 of the Civil Liability Act] was to be relied on, I am of the view that it was a matter which ought to have been referred to in the claimant’s pleading, having regard to the District Court Rules Pt. 9r.9(2); see now Uniform Civil Procedure r.14.14. As well as indicating reliance on s 42, the pleading should have given particulars of the facts which were said to give rise to consideration of s 42. Unless reliance is notified in this way and with particularity, procedural unfairness will arise, particularly as, irrespective of whether the onus of proof of facts under s 42 lies upon a plaintiff or on a defendant, a public authority is in a far better position to know and to adduce evidence relating to the facts with which s 42 deals than any litigant contending with it is likely to be.”

9 I was also referred to a case of Benton v Scotts Refrigerated Freightways [2008] NSWCA 143. That case concerned a defence under s 151Z of the Worker’s Compensation Act, which is said by the plaintiff to be analogous. However, I do not need to place any reliance on that decision, and, notwithstanding the distinction between s 42 and s 5O of the Civil Liability Act, it seems to me that what was said by the Court of Appeal in Port Stephens Council v Theodorakakis applies with equal force to s 5O, and therefore, if reliance is placed on that section as a defence, it must be pleaded and it must be particularised.

10 In this case the defendant has applied for leave to file an amended defence so that that matter may be pleaded, and I have indicated that I would give leave. However, after I gave that indication, Mr Lidden, Senior Counsel for the plaintiff, indicated certain matters which should have been apparent to me, and those are that the expert opinion upon which he relies, particularly the opinion of Dr Barrowclough, does not address the s 5O question, and that if the defence is pleaded, the plaintiff would have taken a different course of action. Mr Lidden also pointed out that a forensic decision was made by him and those instructing him, after the close of the defendant’s case, not to require Dr Reid and Dr Boshell for cross-examination, because of the view that he took that their reports were irrelevant, because they were not related to a matter in issue in the proceedings, not having been pleaded. That is a perfectly defensible view. It seems to me, that, notwithstanding any indication that I should give, I should not allow any amendment to the pleading at this late stage, because of the prejudice to the plaintiff, and I should rule that the reports of Dr Reid and Dr Boshell, insofar as they touch on matters under s 5O, are irrelevant and inadmissible.

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