Raviolos v Sydney Local Health District

[2015] NSWSC 439

Supreme Court

New South Wales

Medium Neutral Citation:	Raviolos v Sydney Local Health District [2015] NSWSC 439
Hearing dates:	17 April 2015
Date of orders:	17 April 2015
Decision date:	17 April 2015
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Dismiss the defendant’s application for particulars. (2) Order the defendant to pay the plaintiff’s costs of the application.
Catchwords:	PROFESSIONAL NEGLIGENCE – medical negligence – alleged failure to diagnose or follow up carcinoma of the lung – whether particulars of plaintiff’s work history or related possible exposure to carcinogenic agents (asbestos) relevant to a fact in issue
Category:	Procedural and other rulings
Parties:	John Raviolos (Plaintiff) Sydney Local Health District (Defendant)
Representation:	Counsel: T Moisidis (Plaintiff) R Sergi (Defendant) Solicitors: Court Legal (Plaintiff) Curwoods Lawyers (Defendant)
File Number(s):	2014/376071
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Mr Raviolos fell from a ladder on 22 August 2012 in the course of his employment at the Tooheys Brewery at Lidcombe. He sustained fractures to his pelvis and spine. He was taken by ambulance to Concord Hospital for treatment of his injuries.

2. Part of his treatment required the performance of a CT scan of his cervical spine. The reporting radiologist concluded that Mr Raviolos had emphysema, a calcified granuloma at the left apex and laterally of a segment of his lung and a lobulated and spiculated soft tissue lesion at least 2.5cm deep without bone destruction. The doctor considered that the lesion may have been post-inflammatory, an active infection or a tumour, and recommended correlation with any prior imaging. A thoracic CT scan was also recommended. A respiratory outpatient follow-up for further investigation and management of the lesion was advised.

3. Mr Raviolos was discharged from hospital the following day. His discharge referral provided no advice about the need to be seen by a respiratory physician in order to investigate the lesion.

4. On 11 July 2013 Mr Raviolos was admitted to Westmead Hospital for the investigation and treatment of a mass in the right side of his neck. A CT scan performed on that day confirmed the presence of a left apical spiculated mass with adjacent bony destruction consistent with lung cancer. A further CT scan performed two days later showed a lesion thought to be a left apical Pancoast tumour with extension through the endothoracic fascia and involvement of the left second and third ribs. A core biopsy performed on 31 July 2013 demonstrated the existence of a primary non-small cell lung cancer or poorly differentiated adenocarcinoma. This was later found to be associated with a malignancy in the apex of the left lung and regional lymph nodes.

5. These proceedings were commenced on 23 December 2014. The current version of the statement of claim alleges that the defendant breached its duty of care to Mr Raviolos in a number of ways but in general terms by failing properly or in a timely way to follow up his condition after discharge so as to exclude the existence of a malignant lesion or to diagnose it in the first place. Various formulations of the particular breaches alleged are in or to the same effect.

6. Mr Raviolos has now been advised that his condition is terminal. His life expectancy has been reduced. He alleges that a proper diagnosis at an earlier time and appropriate intervention and treatment would either have cured his condition or significantly increased his chances of a better outcome. The defendant has admitted most of the alleged particulars of breach of duty but has denied that any loss or damage suffered by Mr Raviolos was caused thereby.

7. As a result of Mr Raviolos’ extremely grave condition, his evidence is to be taken on commission in four days’ time.

8. The defendant sought particulars of the amended statement of claim on 12 March 2015. Those particulars have been provided with the exception of question 4 headed EMPLOYMENT HISTORY. The series of particulars sought in that category are as follows:

“4.1   Please provide the names and addresses of the plaintiff’s past employers.

4.2   In relation to each of the plaintiff’s employers, please provide the term of employment.

4.3   In relation to each of the plaintiff’s employers, please provide details of the plaintiff’s:

(a)   Job classification.

(b)   Job description.

(c)   Nature of work performed including, but not limited to, any contact the plaintiff had with asbestos or asbestos products.

(i)   The date(s) that such work was performed.

(ii)   The nature of the work undertaken.

(d)   In relation to any contact with or exposure to asbestos or asbestos products, specify:

(i)   The nature of the contact or exposure.

(ii)   The duration of the contact or exposure.”

9. Mr Raviolos has objected to providing these particulars upon the basis that they are not relevant to any current issue in the proceedings. The defendant thinks otherwise. Its view is captured in the terms of a letter dated 23 March 2015, part of which is as follows:

“We disagree that the nature of the plaintiff’s employment is not relevant to any liability issue as between the parties. We submit that the plaintiff’s employment and exposure to asbestos is relevant to the issue of causation and/or damages.”

10. The matter returned to me today for the disposition of that single issue.

11. In my opinion the defendant is not entitled to the particulars it seeks. Counsel for the defendant expressly disavowed the existence of a relevant relationship between the aetiology of Mr Raviolos’ disease and his prognosis in terms of life expectancy. It seems clear, therefore, that the defendant does not wish to propound an argument that the cause of Mr Raviolos’ lung cancer reliably informs the likely progress of his disease. It is in those circumstances irrelevant whether the malignancy is the result of work related exposure to asbestos or to cigarette smoking or to any other possible contributing cause or causes.

12. It is not alleged that the defendant is responsible for the cause of Mr Raviolos’ lung condition as it existed on 22 August 2012 when first he came to the emergency department of Concord Hospital. Mr Raviolos’ presenting condition was patent and detected following radiological investigation. He alleges that the defendant had an obligation at that time to treat him in accordance with proper standards of medical care. It is a matter of no moment that his presenting pathology may have been the result of exposure to a work related danger or otherwise.

13. The position may be different if the defendant wished to contend that there was scientific or epidemiological support for the proposition that asbestos related cancer offered a better or different prospect in terms of life expectancy than cancer apparently caused in some other way. If cancer apparently caused by asbestos could be shown, for example, to have a statistically better chance of response to surgery or adjuvant therapy, or was known to be demonstrably slower to progress than cancers caused in other ways, then an alternative approach might be called for. In such a case the defendant may be able successfully to argue that Mr Raviolos’ prospects were better than those about which his own medical specialists have prognosticated. I am not aware of any such evidence generally and the defendant has not hinted at its existence in particular.

14. In my opinion the defendant is not entitled to the particulars sought. The costs of the argument before me should be paid by the defendant.

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Decision last updated: 17 April 2015