Ramadge v Northern Health
[2017] VSC 281
•24 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2014 04703
| STEPHEN RAMADGE | Plaintiff |
| v | |
| NORTHERN HEALTH & ORS | Defendants |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2017 |
DATE OF JUDGMENT: | 24 May 2017 |
CASE MAY BE CITED AS: | Ramadge v Northern Health & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 281 |
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PRACTICE AND PROCEDURE – Application by second defendant to join a third party out of time – medical negligence – Order 11 Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Civil Procedure Act 2010 (Vic) – whether there is irreparable element of unfair prejudice caused by joinder of third party – delay – balance of relevant considerations – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Over | Maurice Blackburn Lawyers |
| For the First Defendant For the Second Defendant For the Proposed Third Party | Ms B Wellington (solicitor) Mr A Mukherjee Ms A L Robertson | K & L Gates HWL Ebsworth Lawyers Avant Law |
JUDICIAL REGISTRAR CLAYTON:
1 The second defendant’s application for leave to join a third party is refused.
2 The second defendant is to pay the costs of the application incurred by the plaintiff.
Introduction
3 This is an application on Summons filed on 12 May 2017 by the second defendant, Healthcare Imaging Services (Victoria) Pty Ltd (“Healthcare Imaging”) for leave, pursuant to Order 11 of the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”) to join a third party out of time.
4 Healthcare Imaging made an application to adjourn the hearing of this application for a week, which was refused.
5 The plaintiff, Mr Stephen Ramadge, opposes the application on the basis that it is made so shortly before the trial of the proceeding that the inevitable consequence of granting the application will be the vacation of the trial date.
6 The first defendant, Northern Health, takes no position in relation to the application for leave to join a third party.
7 The proposed third party, Dr Saddik, was also represented at the hearing of the application.
Background
8 In his Amended Statement of Claim dated 8 December 2016, Mr Ramadge alleges that:
(a) on 4 June 2010 he attended a health service conducted by Northern Health complaining on long standing right arm numbness which was progressive, a weakened hand grip, coldness in his left arm and shooting neck pain;
(b) he was referred by Northern Health for an MRI scan of his spine which was undertaken by Dr Saddik at Healthcare Imaging on 19 June 2010;
(c) on 21 June 2010, the Healthcare Imaging report on the MRI scan showed multi-level spinal cord compression and radiculopathy of the cervical spine (“the 21 June MRI”); and
(d) Northern Health and Healthcare Imaging should have known that he required urgent spinal decompression surgery and referred him for neurological review.
9 Notwithstanding the results of the MRI, it was not until September 2010 that Northern Health diagnosed his condition and arranged for spinal decompression surgery which occurred on 21 October 2010.
10 Specifically, in his Amended Statement of Claim, Mr Ramadge alleges against Healthcare Imaging that;
(a) on or about 19 June 2010, the second defendant by its servant or agents undertook an MRI scan of the plaintiff’s spine;
(b) on or about 21 June 2010, the second defendant (sic) by its servants and agents prepared a report of the MRI scan which included findings that:
(i) the plaintiff had radiculopathy of the cervical spine; and
(ii) had multi-level spinal cord compression.
(c) On or soon after 21 June 2010, the second defendant by its servants and agents should have:
(i) used all reasonable endeavours to contact urgently the referring doctor, being Dr Ng, about the findings of the MRI of the plaintiff’s spine and urgently communicated to him the findings of the MRI of the plaintiff’s spine;
(ii) further, if the referring doctor could not be contacted urgently, communicated the findings of the MRI of the plaintiff’s spine including the report of the MRI to Dr Ng and the first defendant in a timely fashion; and
(iii) further and alternatively, communicated the findings of the MRI of the plaintiff’s spine including the report of the MRI to Dr Ng and the first defendant in a timely manner.
Healthcare Imaging’s Arguments
11 In support of its Summons, Healthcare Imaging filed an Affidavit of Alison Mary Elmes sworn on 9 May 2017 (“the Elmes Affidavit”).
12 Healthcare Imaging submitted that Mr Ramadge’s case against it boiled down to an allegation that it should have picked up the phone and urgently notified Dr Ng or someone employed by Northern Health about the 21 June 2010 MRI results. It said that the proposed third party, Dr Saddik, was the doctor who actually reported on the MRI and bore the responsibility for any negligent conduct that might be found against Healthcare Imaging.
13 Healthcare Imaging submitted that Dr Saddik’s employment contract contained a clause that provided that it was not obliged to indemnify Dr Saddik for any loss or liability caused by negligence. It also submitted that it was not until mediation on 2 May 2017 that the ‘issues crystallised’ in a way that made it clear that Dr Saddik’s conduct would be at the heart of the negligence allegations against it, and that following this ‘crystallisation’, it had acted without delay and attempted to resolve the dispute directly with Dr Saddik’s insurer in compliance with its obligations under the Civil Procedure Act 2010 (Vic) (“the Act”).[1]
[1] Elmes Affidavit at [29]-[30] & [37].
14 It was only when these attempts were unsuccessful that this application was brought. It said that, whilst this application was brought late, it would be a ‘counsel of perfection’ to require Healthcare Imaging to have immediately brought Dr Saddik in as a third party, and that the need only arose after the mediation of the matter.
15 Healthcare Imaging further submitted that, at the time of being brought into the proceeding in December 2016, it had expressly reserved its rights in a letter to Mr Ramadge’s solicitors, to ‘apply to adjourn the trial if it becomes apparent that our client is not ready to proceed’.[2]
[2] Ibid [4].
16 Finally, it submitted that the dispute between it and Dr Saddik was confined to the nature and interpretation of the employment contract and that it was ready to proceed to trial on the date fixed.
Mr Ramadge’s Arguments
17 Mr Samuel James Pearce, solicitor for Mr Ramadge, filed an affidavit affirmed 17 May 2017 (“the Pearce Affidavit”).
18 Mr Ramadge opposes the application for leave to issue the third party notice. Mr Pearce also submitted that the practical consequence if the application was granted was that Dr Saddik would make an application to vacate the trial date, which would be highly likely to succeed.
19 Through his Counsel, Mr Ramadge submitted that, in an application made late and out of time for leave to join a third party, it is relevant to ask when Healthcare Imaging first knew about the proceeding and when it knew or ought to have known that it might have a claim against Dr Saddik.
20 He says that, although the Amended Statement of Claim was not formally served on Healthcare Imaging until 8 December 2016, in fact Healthcare Imaging had been put on notice about the proceeding on 22 November 2016[3] and provided with the proposed Amended Statement of Claim on 30 November 2016.[4] The basis for the allegations against Healthcare Imaging was an expert report of radiologist Dr Kam, whose report was provided to Healthcare Imaging on 21 December 2016.[5]
[3] Pearce Affidavit [11].
[4] Ibid [12].
[5] Ibid [42].
Relevant Principles
21 Pursuant to Order 11.05 of the Rules, a defendant may file a third party notice within 30 days after the time limited for the service of a defence, or at any time with the leave of the Court or with the consent in writing of the plaintiff and any other party who has appeared.
22 In this case, Mr Ramadge opposes the filing of the third party notice and Northern Health takes no position on it. Therefore, the Court is required to exercise its discretion to grant that leave.
23 In determining the exercise of the discretion, the Court must have regard to the competing interests of the parties and to the Act.
24 Section 7 of the Act sets out that the overarching purpose of the Act and the rules in civil proceedings is to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
25 On the one hand the defendant has an entitlement to pursue any party against whom it reasonably considers it could seek a contribution. To have third party proceedings heard at the same time as the trial of the primary proceeding is generally the most efficient and cost effective means of disposing of a matter. On the other hand, the plaintiff has an entitlement not to have the proceedings unduly complicated or delayed by the addition of a third party.
26 In Fenridge Pty Ltd v Retirement Care Australia[6] Dixon J found that an unexplained delay of three years in bringing a third party claim would cause inconvenience to the plaintiff that would outweigh the inconvenience to the defendants in not being able to have their claims against the proposed third party disposed of in the same hearing.[7]
[6] [2012] VSC 439.
[7] Ibid [31].
27 Whilst the delay in the present case is not anywhere near three years, the application is brought much closer to the commencement of the trial.
28 In the present case, had the application been brought at a time that would not so clearly jeopardise the trial date, Healthcare Imaging’s entitlement to ventilate its arguments against Dr Saddik would likely have been allowed.
29 However because the application is brought just over two weeks from the trial date, it is impossible to avoid the conclusion that, were it allowed, Dr Saddik would immediately apply for the trial date to be vacated. Such an application would be nearly impossible for the Court to resist in the interests of fairness to Dr Saddik. Losing a trial date carries with it a degree of irreparable prejudice[8] which must be weighed along with all the other factors in determining the exercise of the discretion.
[8]AON Risk Services v Australian National University (2009) 239 CLR 175, 182 at [5].
30 I am not satisfied that Healthcare Imaging did not, or should not, have known, well prior to the mediation on 2 May 2017, that Dr Saddik’s conduct would be in issue at trial. Although Healthcare Imaging was brought into the proceeding in December 2016, they were essentially ‘brought up to speed’ by January 2017 and have not raised any issues about their preparedness for trial or their ability to meet the claim against them in the time allowed. Reservation of their rights to apply to vacate the trial date as set out in the email of 8 December 2016[9] does not encompass any and every application which would have that effect.
[9] Elmes Affidavit [4].
31 The Amended Statement of Claim alleges that ‘the servants or agents’ of Healthcare Imaging were negligent in failing to urgently or in a timely fashion report the findings of the 21 June MRI to Dr Ng.
32 On 21 December 2016, Healthcare Imaging was provided with the report of Dr Kam setting out his expert opinion as to the need for an urgent or timely notification of the 21 June MRI.[10]
[10] Pearce Affidavit [16].
33 On 6 February 2017, the solicitor for Healthcare Imaging was advised by the solicitor for Dr Saddik’s insurer that they had been ‘put on notice’ by the solicitors for Northern Health ‘of an intention to seek contribution’ against Dr Saddik.’[11]
[11] Elmes Affidavit [8].
34 Of the parties in the proceeding, only Healthcare Imaging was aware of the terms of its employment contract with Dr Saddik. Healthcare Imaging have not submitted that it does not employ Dr Saddik, that Dr Saddik is not its servant or agent and that he , rather than it, is the appropriate defendant. Rather, it concedes that the issue between it and Dr Saddik is confined to the terms of the employment contract and whether it is required to indemnify Dr Saddik for any negligent conduct in the course of his employment.
35 Healthcare Imaging knew the terms of its contract with Dr Saddik and knew of the allegations against its ‘servants or agents’ from at least 8 December 2016. If it had not turned its mind to the possibility of seeking contribution from Dr Saddik at that time, it should certainly have done so on 6 February 2017 when the solicitors for Dr Saddik’s insurance company notified it that they had been ‘put on notice’ about a potential claim against him.
36 Whilst it is commendable that Healthcare Imaging used its best efforts to resolve the issue between it and Dr Saddik informally and prior to issuing proceedings, and whilst it is true that the Act requires parties to do this, such informal negotiations should not come at the expense of the trial date. Where time is tight, as in this matter, the prudent course would have been to issue the third party notice and continue discussions and negotiations after the formal commencement of proceedings.
37 This is not a case in which the potential prejudice to Mr Ramadge by losing his trial date can be overcome by any other orders of the Court. The Court would have to deal with an application by Dr Saddik on its own merits, and Healthcare Imaging’s assurances that it would not seek to vacate the trial date are of little comfort to Mr Ramadge given the likelihood that Dr Saddik will.
38 Healthcare Imaging is not shut out from pursuing Dr Saddik in separate proceedings and, given the confined nature of the dispute between those two parties, this would not be an unduly onerous undertaking.
39 I am therefore not satisfied that there is a sufficiently good reason why the third party claim was not issued within time, or a sufficient explanation for the delay, such as to outweigh the inconvenience and potential prejudice to Mr Ramadge. For these reasons I refuse the application.