Rae by his tutor Rae v South Western Sydney Local Health Network

[2016] NSWSC 1176

Supreme Court

New South Wales

Medium Neutral Citation:	Rae by his tutor Rae v South Western Sydney Local Health Network [2016] NSWSC 1176
Hearing dates:	24 August 2016
Date of orders:	25 August 2016
Decision date:	25 August 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Grant leave to the plaintiff to amend the statement of claim in the form of the fourth amended statement of claim annexed to the affidavit of Alicia Kuay Wong sworn 19 August 2016. (2)    Order the plaintiff to pay the costs of and incidental to the motion.
Catchwords:	PLEADINGS – amendment of pleadings – whether proposed amendments raise new issues – where defendants in possession of plaintiff’s expert obstetric opinion since April 2015 raising the issues now sought to be particularised – whether defendants prejudiced by proposed amendments
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Category:	Procedural and other rulings
Parties:	Dylan Rae by his tutor Julie Rae (Plaintiff) South Western Sydney Local Health Network (First Defendant) Dr William Harding (Second Defendant) Dr Grahame Vaughan (Fourth Defendant)
Representation:	Counsel: R Sheldon SC (Plaintiff) R Sergi (Defendants)   Solicitors: Brydens (Plaintiff) TressCox Lawyers (Defendants)
File Number(s):	2008/289285
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By notice of motion filed on 22 August 2016 the plaintiff seeks leave to amend his statement of claim. There have been several amendments already. The proposed amendments are opposed, but only to the extent that they concern changes or additions to the particulars of negligence.

2. The plaintiff was delivered on 19 December 1992. He was diagnosed following his delivery with hypoxic brain damage, cerebral palsy, and intellectual and speech impairments that will require lifelong care. In the several versions of the statement of claim filed so far the plaintiff has consistently alleged that these conditions are the result of the defendants’ mismanagement of his mother’s labour. That general allegation has been variously particularised from time to time. The plaintiff contends that the proposed amendments are in effect a more detailed particularisation of the plaintiff’s case in negligence that has been pleaded thus far. The defendants disagree.

3. On 3 April 2015, Professor Euan Wallace, a specialist obstetrician, provided a report to the plaintiff’s solicitor. It is in clear and unambiguous terms. It specifies the several ways in which Professor Wallace considers that the defendants were at fault. Professor Wallace’s opinion in summary is expressed by him to be as follows:

“1.1 It is my opinion that the care of the patient and her baby (foetus) was deficient with respect to the interpretation and management of the CTG in labour. Specifically, (i) the labour was not monitored appropriately with a CTG from the onset of oxytocin … (ii) pathological abnormalities in the foetal heart rate suggestive of significant foetal compromise were not recognised and acted upon appropriately … and (iii) the foetal heart rate was not recorded at all during the last two hours of the labour …”

4. Professor Wallace’s report was served on the defendants on 7 April 2015.

5. On 11 August 2015, the plaintiff’s solicitor wrote to the defendants’ solicitor asking if the defendants had completed service of their expert evidence on liability and quantum. With commendable efficiency the defendants’ solicitor replied on the same day advising, “Yes, we have completed service of our evidence”.

6. The proceedings are listed for hearing commencing on 7 November 2016 with an estimate of three weeks. The plaintiff maintains that the proposed amendments do no more than give voice to Professor Wallace’s opinions and in any event are entirely consistent with the case as already particularised. It is inherent in that contention that they raise no new or different issues and that the defendants could not in the circumstances have any genuine basis upon which to oppose them. The defendants have not suggested either in terms or by implication that they are prejudiced by the proposed amendments although they have not been in possession of them for long enough to have obtained final instructions about it. The defendants’ attitude is best encapsulated as a concern, yet to be verified or confirmed, that “the proposed fourth amended statement of claim raises new allegations against the second and fourth defendants which, in fairness, should be put to those doctors and may also need to be put to the defendants’ experts for the purpose of obtaining supplementary reports.”

7. The test of the true relationship between what has been pleaded already and what is now proposed is best understood by a comparative appreciation of the particulars of negligence upon which the plaintiff now wishes finally to rely. That material is as follows:

“PARTICULARS OF NEGLIGENCE AS AGAINST FIRST AND SECOND DEFENDANTS

31   The First and Second Defendants breached their duty of care to the Plaintiff and his mother by:

a.   Failing to ascertain that the Plaintiff was presented with a high unengaged head;

b.   Failing to conduct a prompt vaginal examination upon admission;

c.   Failing to advise the Plaintiff’s mother that birth should not be induced;

d.   Taking steps so as to induce the Plaintiff’s birth;

e.   Failing to offer the Plaintiff’s mother the option of caesarean section;

f.   Failing to refer the Plaintiff off for prompt specialist attention with regard to the administration of caesarean section;

g.   Failing to determine that the CTG revealed shortly after its application that there was complicated foetal tachycardia. Administering the drug Prostin which was contraindicated in circumstances of a high unengaged head;

h.   Administering the drug Prostin when induction was delayed and such administration was contraindicated;

i.   Failing to monitor or properly monitor the Plaintiff’s heartbeat;

j.   Failing to properly observe and correctly interpret what the CTG traces were was showing;

k.   Failing to observe and act on the Plaintiff’s foetal tachycardia;

l.   Failing to deliver the Plaintiff by caesarean section once foetal tachycardia had been noted;

m.   Failing to deliver the Plaintiff by means of forceps delivery, caesarean section, or any other means by 1100 hours or 1130 hours immediately at 13.55 hours on 19 December 1992;

n.   Failing to observe that the Plaintiff’s heartbeat was regularly falling well below the recommended baseline;

o.   Failing to ensure that the Plaintiff was delivered by a qualified medical practitioner and not a midwife;

p.   Failing to ensure that as soon as the Plaintiff’s heartbeat abnormalities were noted he was delivered by means of an immediate vaginal delivery with full dilatation of the cervix and with the use of forceps;

q.   Exposing the Plaintiff to cerebral hypoxia during labour and at the time of his birth which exposure was unnecessary in the circumstances-;

r.   Failing to detect a complicated foetal tachycardia

s.   Failing to use CTG monitoring from the outset of an induced labour, at or prior to commencement of oxytocin infusion at around 0800 hours on 19 December 1992;

t.   Failing to detect that CTG at 3.10 (1030 hours real time) was abnormal and required reduction or cessation of oxytocin and if no normalisation in the CTG, delivery of the Plaintiff by caesarean section.

u.   Failing to cease or reduce the oxytocin infusion.

…

bb.   Failing to detect that the heart rate being recorded on the CTG trace from 1215 hours (real time) onwards was the mother’s and not the Plaintiff’s fetal heart rate;

cc.   Failing to observe and act on the Plaintiff’s foetal tachycardia; and other indications of foetal compromise;

dd.   Failing to advert to the fact that accelerating heart rate at the same time as the mother was pushing was a classic hallmark of the CTG being of the mother’s rather than the foetus’s heart rate.

ee.   Failure to reduce the oxytocin at around 1025 hours on 19 December 1992, when the abnormal CTG was first apparent; and later when the abnormal CTG continued and was reviewed by the Fourth Defendant.

ff.   Failure to recognise that the CTG traces for the last two hours of labour and delivery (from around 1215 hours onwards) were not recording the Plaintiff’s foetal heart rate but were likely recording the maternal heart rate instead.

PARTICULARS OF NEGLIGENCE AS AGAINST FOURTH DEFENDANT

32   The Plaintiff repeats the particulars of negligence above against the Fourth Defendant and relies on additional particulars of negligence being:

a.   At approximately 11.35 hours on 19 December 1992 having reviewed the Plaintiff’s mother’s blood pressure allowing induced birth to continue;

b.   Failing to promptly act on the Plaintiff’s foetal tachycardia;

c.   Failing to ensure that the Plaintiff’s mother was sent off for prompt caesarean section;

d.   Failing to remain on the premises so as to deliver the Plaintiff and monitor his condition.;

e.   Failing to ensure that the CTG and progress in labour and delivery was closely and competently monitored, as the responsible visiting medical officer;

f.   Failing to realise that the decelerations noted by the midwife were not early decelerations;

g.   Failure to attend promptly on being given information concerning the presence of both early and late decelerations which was indicative of and/or only consistent with a misreading of the CTG;

h.   Failing to request or direct that the infusion of oxytocin be reduced or ceased;

i.   After reviewing the CTG traces, failing to formulate a management plan for the Plaintiff’s mother who previously had shown some abnormal features in the CTG and/or failing to communicate this management plan to the midwives and/or resident medical staff to whom the Fourth Defendant was delegating care in his absence;

j.   Failing to advert to the fact that accelerating heart rate at the same time as the mother was pushing was a classic hallmark of the CTG being of the mother’s rather than the fetus’s (sic) heart rate.

2733   The particulars of negligence against the Fourth Defendant above are also repeated against the First on the basis that the Fourth Defendant was a servant or agent of the First.

2834   As a result thereof the Plaintiff was born in circumstances where he suffered severe brain damage as a result of cerebral hypoxia during labour and at the time of his birth.”

8. In my opinion, the arguably “new” particulars are no more and no less than a slightly more detailed description of the case as already particularised. To put that comment in proper context, it is clear that this litigation is concerned with what is now a tragically well-worn path involving an alleged professional failure to manage both the plaintiff’s labour and his delivery in a way that took account of serious and obvious indications for an expedited birth. It is clear from the case as presently pleaded that CTG monitoring and interpretation, the significance of foetal distress, including bradycardia, the suitability or advisability of a Caesarean or forceps delivery, and similar associated issues have for long been at large in this litigation. In particular, the experts retained for the parties are, in my experience, all well versed in litigation of this particular type and well apprised of the specialist medical issues that are involved. I am unable to detect in the proposed amended particulars any issue or question that would not have been at the forefront of all the experts’ attention and their respective consideration of what, if anything, went wrong during the course of the plaintiff’s antenatal period and delivery. The particulars proposed do not in my estimation, and contrary to the defendants’ position, raise any genuinely new issues at all. It would surprise me to the point of astonishment if the defendants or their experts were, upon proper analysis, in any way vexed or taken by surprise by what the plaintiff now wants to do.

9. In response to that view, however, the defendants now say that, even though it is true that they have been in possession of Professor Wallace’s report since April last year, and even though they indicated, in effect, that they did not wish to file evidence directly dealing with it, that is beside the point, because the pleadings determine what the case is about and the plaintiff did nothing to bring the pleaded case into line with anything that Professor Wallace had to say. Unless or until that occurred, the defendants were entitled to proceed upon the basis that the matter would be heard and determined by reference to the current pleading.

10. I accept that the plaintiff could and probably also should have applied to amend the statement of claim long before this. I also acknowledge that the balance of competing prejudices is no longer the test of whether an amendment should be permitted or as persuasive a factor as once it might have been: see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. On the other hand, the parties are expected, and should expect, to contest what are the real issues in dispute. Sections 56, 57, 58 and 64 of the Civil Procedure Act 2005 are of critical importance in this respect. Sections 58 and 64 provide relevantly as follows:

“58 Court to follow dictates of justice

(1)    In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document …

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2)    For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

64 Amendment of documents generally

(1)    At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3)   …”

11. In my opinion, the discernment by the Court of the issues that have been particularised in the proposed amendments are all and always were the real issues in dispute in this case. It is very important in my view, having regard to the statutory exhortations in the Civil Procedure Act, that form should not be permitted to triumph over substance. Without intending to trivialise or over- simplify the liability issues in this case, they are in general terms three in number:

1. Was the plaintiff’s delivery mismanaged as alleged in any way by the defendants or one of them?

2. If so, by which defendants and in what way?

3. If not, why not?

12. It is wholly unrealistic in my view to anticipate or expect that any of the parties’ respective experts in conclave would be taken by surprise or confused with anything said by Professor Wallace in his 3 April 2015 report, quite apart from whether or not they agree with him, or with respect to the particulars of negligence now sought to be formulated by reference to Professor Wallace’s opinions. Indeed, I can see no single issue of obstetric opinion or practice that is brought forward in the proposed amendments that is not or would not be the very stuff of the professional life of every expert who has been retained by anyone in this case.

13. It follows in my opinion that the amendments should be allowed. Two issues remain for consideration.

14. First, in order to take account of what seems to me to be the faint prospect that the defendants are prejudiced in some way by the proposed amendments, they should have liberty to apply on short notice to say so and how and to seek such relief as may seem to them in the circumstances to be necessary or appropriate. It would surprise me if that included an application to vacate the hearing but in expressing that view I do not intend to foreclose the defendants’ entitlement to take whatever course they deem relevant.

15. Secondly, although I have not yet heard the parties on the question of the costs of this motion or the amendment, it seems to me that those costs should be paid by the plaintiff. An application to amend in 2015 would have lacked the controversy apparently at large in the present application. I appreciate that some matters have affected the plaintiff’s position since then, including the untimely death of senior counsel originally retained by him. However, the defendants have not created the need for the application to amend and are entitled to expect that the pleadings will define the issues for trial and not the reverse. Unless the plaintiff wished to suggest otherwise, I would propose to order that the costs thrown away or occasioned by the proposed amendment, including the costs of the motion, be paid by the plaintiff.

Orders

16. Subject to the above, I order as follows:

1. Grant leave to the plaintiff to amend the statement of claim in the form of the fourth amended statement of claim annexed to the affidavit of Alicia Kuay Wong sworn 19 August 2016.

2. Order the plaintiff to pay the costs of and incidental to the motion.

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Decision last updated: 25 August 2016