Milone v St Andrew's Hospital - [1998] QSC 249

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 1067 of 1992
Before the Hon. Mr Justice Mackenzie
[Milone v St Andrew’s Hospital & Ors.]
BETWEEN:

GRAZIELLA NARDIA GERALDA MILONE (AN INFANT)
BY HER NEXT FRIEND GIOVANNI MILONE
Plaintiff

AND:

ST ANDREW’S WAR MEMORIAL HOSPITAL
Second Defendant

AND:
JOHN DOUGLAS NEWMAN YELLAND
Third Defendant

AND:
JAMES RAYMOND TIERNAN
Fourth Defendant

JUDGMENT - MACKENZIE J.
Judgment delivered 6 November 1998

CATCHWORDS: NEGLIGENCE - medical procedure - application to further amend statement of claim to include breach of contract.

R v Cook (1979) 2 A Crim.R 151

Counsel:Mr G Crooke QC and Mr J McDougall for the plaintiff
Mr P Ambrose for the first and second defendant
Mr D Tait for the third and fourth defendants

Solicitors:Murphy & Schmidt for the plaintiff
Gadens Lawyers for the first and second defendant
Flower & Hart for the third and fourth defendant

Hearing Date: 21 October 1998

JUDGMENT - MACKENZIE J.

Judgment delivered 6 November 1998

This is an application to further amend the statement of claim in a medical negligence action. The incident in respect of which the action is brought occurred in 1972. The Writ was not issued until 1981. The action was transferred to Brisbane in 1992. A draft of the proposed further amended statement of claim consolidating what would be the state of the statement of claim after amendment has been prepared. The principal amendment sought is to add a claim for breach of contract against the second defendant and against the third and fourth defendants, although a variety of other additional allegations intended to constitute particulars are added as well.
Mr Ambrose for the second defendant opposes leave to amend by adding a new cause of action in contract and submits that some of the individual particulars are defective and should not be allowed in any event. Mr Tait for the third and fourth defendants opposes leave to add a new cause of action in contract but does not object to the particulars against his clients if leave is given to amend.
The plaintiff is a female born on 31 December 1971. From about April 1972 onwards she began to suffer severe convulsions. Implication of the triple antigen vaccine in causation of her condition was one of the issues when the action commenced but is no longer an issue. The plaintiff remains under a disability as a result of her brain damage.
With respect to the second defendant the allegation is that the plaintiff was admitted to St Andrew’s Hospital for treatment for epilepsy on 2 November 1972. On 5 November 1972 she suffered an extended period of convulsions as a result of which she suffered severe brain damage.
With respect to the third and fourth defendants it is alleged that the plaintiff was admitted to hospital under the control of the third and/or fourth defendant for the purpose of receiving treatment, including management of her condition from and under the direction of the third and/or fourth defendant and that they undertook either by contract with the plaintiff or by undertaking control or treatment of her condition, to exercise due care and skill in relation to her care, management and provision of advice. It was alleged that during the course of the plaintiff’s convulsions, the second defendant’s servants or agents contacted the third and fourth defendants seeking advice whether treatment should be given to the plaintiff. It is alleged that such advice was given and acted upon by the second defendant’s servants and agents. (One of the proposed amendments alleges in the alternative that the second defendant’s servants and agents did not make timely contact with the third and/or fourth defendant to obtain advice).
Originally the statement of claim alleged that the breach of duty and its consequences were the result of negligence or breach of duty of the second defendant, its servants and agents and of the third and/or fourth defendants. It is now proposed to add an allegation also that there was breach of contract on the part of each of them. The particulars with respect to the second defendant do not differentiate between those which are alleged to be particulars of negligence or breach of duty and those which are alleged to be particulars of breach of contract. Nor do those in respect of the third and/or fourth defendants.
With respect to the third and fourth defendants the particulars sought to be added are the following:-
(a)failing to advise the second defendant adequately that if the plaintiff convulsed it should seek timely and urgent advice from them;
(b)failing to advise the second defendant adequately or at all that it should seek urgent advice from them and if it could not, seek other advice;
(c)failing to advise the second defendant adequately or at all what to do if the plaintiff convulsed, and in particular failing to provide the second defendant with a medical practitioner who could give the necessary injections urgently;
(d)failing to advise the mother or the second defendant to arrange for a medical practitioner to be and remain available for such purpose.
With respect of the third and fourth defendants, even prior to the proposed amendment there was an allegation that there was a contract with the plaintiff to exercise due care and skill in relation to the care, management and provision of advice. In the circumstances while one might think that if the last two particulars were established they would be towards the high water mark of circumstances where liability is found having regard to practical considerations, I am not persuaded that that any reason exists to deny the plaintiff leave to amend against the third and fourth defendants.
With respect to the second defendant the allegation that a contract existed between the second defendant and the plaintiff is introduced in para.8(a) of the consolidated draft in terms similar to that which pre-existed with respect to the third and fourth defendants, save that it omits reference to providing advice.
Paragraph 8(b) alleges that the second defendant provided or held the hospital out as having particular facilities and attributes which are listed. It is not immediately clear why these allegations are made. They do not connect in an obvious way with any of the other allegations and do not obviously have a bearing on the content of the contract to exercise reasonable care. There is evidence that the second defendant is faced with difficulty in obtaining information more than 25 years after the event about what was held out or expected by the hospital to be provided by way of facilities and the performance of functions in respect of patients. If such documents existed they are not in the possession of the second defendant now. It is claimed that the second defendant will be prejudiced if the new allegation of breach of contract is allowed to be raised.
Having regard to the combination of the real risk of prejudice to the second defendant, and the absence of any clearly discernible purposes of para.8(b) in light of the fact that no attempt is made in the pleading to define what consequences flow from the provision of or holding out of such facilities and attributes, I will not allow what is pleaded in para.8(b) to stand. Viewed in this way it is conveniently severable without distorting the meaning in any other respect. If the purpose is to mount an argument that the provision or holding out of such facilities have a bearing on the standard of care which must be achieved by a hospital of that kind, the pleading is still defective by not providing sufficient particularity as to the factual context relied on to make the allegation relevant to the breach of contract alleged, viz, a duty to exercise reasonable care in the treatment and management of the plaintiff.
Leaving aside para.8(b) the contract is alleged to be one created by the second defendant admitting and accepting the plaintiff as a patient. The essence of the contract relied on is that there was a contractual undertaking to exercise reasonable care in the plaintiff’s treatment and management. 13 The particulars in para.9, subject to Mr Ambrose’s concerns about their form, do not in my view open up any significantly wider issues from those which would have been in evidentiary contention under the preceding pleading. By that I mean that it is hard to imagine that the minds of the parties would not have focused on issues such as those in the proposed particulars (iv) to (xv) against the second defendant in gaining a full understanding of what happened on the day of the incident. There is no prejudice shown. The allegation of breach of contact is intended to avoid any risk that the plaintiff may for some reason fail to establish negligence on the particulars given in the hope that what are, in most cases, the same particulars will enable her to succeed for breach of contractual obligation to exercise reasonable care and skill in the treatment and management of the plaintiff’s condition and the obtaining of advice.
Whether there can be a realistic expectation of this is not a decisive consideration on the question of giving leave. The position is really that the closer the convergence between the two courses of action the less prejudice is likely to occur. In my opinion, in principle, leave to deliver the further amended statement of claim with the deletion of para.8(b) should be allowed.
Turning now to the matters of specific detail, Mr Ambrose addressed submissions to the introduction of the word “management” into the pleadings. He submitted that it was not pleaded what it means and if it is a material fact it is not pleaded how the plaintiff ought to have been managed and how she was managed in breach of the duty of care in tort and in contract. “Management” is a well enough understood word. It was probably introduced to avoid the risk of a sterile argument whether the notion of “treatment” was wide enough to include matters pleaded in the particulars. In that way, it serves a purpose although it is probably unnecessary to include it since it is noted that the Shorter Oxford English Dictionary defines “treatment” as meaning “management in the application of remedies; medical or surgical application or service”. (see also R v Cook (1979) 2 A Crim.R 151). I do not consider that its inclusion of itself widens the scope of the existing pleading.
In regard to para.9(vi) it is agreed that the word “failing” where it first appears has been mistakenly inserted and the paragraph should be amended accordingly. In respect of the remainder of the provisions the submissions focus on the use of the word “failing” in support of the submission that facts are not pleaded. In context, the substance of each particular is that the second defendant did not do what is alleged in the particular. Viewed in that context the particulars sufficiently state facts. I am not persuaded that the content of the particulars in other respects is insufficient to inform the second defendant adequately of what is alleged. To do otherwise than what has been done would, at least in some cases, run the risk of pleading evidence rather than facts if Mr Ambrose’s suggestions were followed.
The formal orders are:
1.I order that the plaintiff be granted leave to amend the statement of claim in accordance with the summons filed on 24 September 1998 and marked with the letters “A” and “B”, “A” showing the history of amendments to the statement of claim, and “B” showing how it would read if the amendments were allowed, save that para.8(b) in “A” and para. 6(b) in “B” be deleted and necessary consequential amendments be made to subsequent designation by letter in those paragraphs.
2.I order that the costs of the application be costs in the cause.