Richmond v Moseley

[2022] NSWSC 1582

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Richmond v Moseley [2022] NSWSC 1582

Hearing dates:

15 November 2022

Date of orders:

15 November 2022

Decision date:

15 November 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   The statement of claim filed on 10 December 2020 be struck out.

(2)   On or before 20 February 2023, the plaintiff is to serve on the defendant:

(a)   a proposed further amended statement of claim,

(b)   a proposed further amended statement of particulars; and

(c)   a report in accordance with Uniform Civil Procedure Rule 31.36(1)(c).

(3)   The matter will be listed for mention before Justice Beech-Jones on Tuesday 14 March 2023 at 9.30am.

(4)   Otherwise order that the plaintiff's notice of motion filed 24 October 2022 be dismissed.

(5)   Order that the plaintiff pay the defendant’s costs of the Notice of Motion filed 24 October 2022.

Catchwords:

PRACTICE AND PROCEDURE – pleading – necessity to file evidence of causation between breach and damage – medical negligence case – no question of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 61

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 31.36

Cases Cited:

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Category:

Principal judgment

Parties:

Catherine Richmond (Plaintiff)
Dr Susan Moseley (Defendant)

Representation:

Counsel:
Mr PA Beale (Plaintiff)
Mr CP O’Neill (Defendant)

Solicitors:
CMC Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2020/350055

EX TEMPORE JUDGMENT

(Revised from transcript)

1. Before the Court is a notice of motion filed by the defendant on 20 May 2022 seeking various orders, including an order that the cause of action pleaded against the defendant in the statement of claim be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 31.36, or in the alternative, an order that the cause of action pleaded be dismissed pursuant to UCPR r 13.4, and in the further alternative, an order that the statement of claim be struck out pursuant to UCPR r 14.28. If all else fails, the defendant seeks an order that the cause of action be dismissed pursuant to s 61(3) of the Civil Procedure Act 2005 (NSW).

The Proceedings and the Pleadings

2. To address the relief sought it is necessary to say something about the background of the proceedings, the pleaded case and the evidence that has been filed on behalf of the plaintiff.

3. At the risk of over-simplification, at the core of the plaintiff's allegations is a contention that in early 2012 she consulted the defendant, a general practitioner, who received the results of two investigations which the plaintiff contends revealed abnormalities in her right lung. Although it seems that further investigation reports were obtained, the plaintiff contends that that investigation was inadequate, and, if it had been undertaken properly, would have revealed she had “stage 1” lung cancer.

4. In 2016, the plaintiff consulted another general practitioner and underwent a computerised tomography (“CT”) scan. This led to a biopsy which confirmed that a lump from her neck contained a carcinoid. This was treated with a surgical resectioning in January 2017.

5. As at today, there is no evidence that the cancer has returned. The material tendered suggests that there are difficulties in obtaining a full investigation of the plaintiff, although various investigative methods were identified.

6. In December 2020, the plaintiff’s statement of claim was filed. The statement of claim recounts various facts that are, in a broad sense, consistent with what I have already stated.

7. Paragraph 22 of the statement of claim alleges that, as a result of the defendant's failure to refer the plaintiff for appropriate treatment, the plaintiff's diagnosis was delayed and her condition was allowed to worsen over time.

8. Paragraph 23 alleges that the plaintiff suffers from spreading cancer as well as associated pain and discomfort, poor memory, vomiting, dizziness, lethargy, sleep disturbance, psychological trauma, and that she is unable to perform work and domestic duties.

9. Paragraph 24 alleges as follows:

“The [p]laintiff's injuries were suffered as a direct result of the [d]efendant's failure to treat the [p]laintiff at the time in which she was responsible for the care and treatment of the [p]laintiff.”

10. Paragraph 30 of the statement of claim provides particulars of the “injuries”. It lists a number of conditions, including carcinoid tumours, spread of cancer, necessity to undergo surgery, pain and discomfort, memory degradation, lethargy, fatigue, sleep disturbance, depression, anxiety and general bodily and psychological trauma.

Causation and Damage

11. UCPR r 31.36(1) provides that, unless the Court orders otherwise, a person commencing a professional negligence claim must file and serve with the statement of claim, an expert's report that includes an opinion supporting, inter alia:

“(c)   the causal relationship alleged between such breach of duty or obligation and the damage alleged."

12. UCPR r 31.36(3) provides that, if there is a failure to comply with UCPR r 31.36(1), the Court may, by order made on the application of the party or of its own motion, dismiss the whole or any part of the proceedings as may be appropriate.

13. Around the time of the filing of the statement of claim, a report of a Dr James Lynch was obtained and most likely served. Dr Lynch's report, dated 18 November 2020, provided a basis for contending that the defendant did not comply with the relevant standard by following up to the investigations that were undertaken to obtain a diagnosis of cancer.

14. On or around 9 April 2021, a psychiatrist, Dr Thomas Clark, provided a report to the plaintiff's lawyers, which I understand was later served on the defendant. Dr Clark was briefed with various documentation, including all the relevant clinical records that were available, as well as the report of Dr Lynch.

15. Dr Clark was asked sixteen questions. Question 3 asked Dr Clark to answer:

“[What are o]ur client's complaints of injury arising from the incident at the time of the accident and currently?"

16. Dr Clark responded:

“She had to be operated on and the tumour removed. This has resulted in her continuing depression.”

17. It can be seen that this question refers to an "incident" and an "accident". Those concepts are not defined in the report.

18. As I understand Dr Clark's answers, Dr Clark opines that it was the fact of the operation and the removal of the tumour that resulted in the plaintiff’s continuing depression.

19. However, counsel for the plaintiff submitted that, at least to his understanding, the reference to what was the cause of her continuing depression was in the delay in the diagnosis of the plaintiff's condition.

20. A number of other questions posed of Dr Clark again made reference to the "incident" or "accident", without identifying, at least in the body of his report, what they were.

21. Recently the plaintiff obtained a report from a Dr Susan Pendlebury, who is a specialist radiation oncologist. Dr Pendlebury's report refers to carcinoid tumours, being those suffered by the plaintiff, as representing only 1-2% of lung cancers. She describes them as low grade cancer characterised by cells that divide very infrequently. Dr Pendlebury stated that the treatment of clinical stage 1 carcinoids, being those without obvious lymph node involvement pre-operatively, is with complete surgical resection. In her view, the chances of survival of a patient with stage 1 carcinoids out to six years are good, with all groups having a 90-95% five to six year overall survival rate.

22. Dr Pendlebury was asked questions about what treatment the plaintiff would have received in 2013 had the result of investigations revealed the diagnosis that she received in 2016. Dr Pendlebury effectively stated that the treatment would have been the same as that which the plaintiff ultimately received.

23. The one matter of difference that Dr Pendlebury identified is that, when the plaintiff was diagnosed in 2016, her cancer was considered to be at stage 3A and her chances of survival at ten years, that is, around 2025 to 2026, is in the order of 80%. Dr Pendlebury stated that without the delay that occurred in the three years between 2012 and 2016, the chances of survival would have been in the order of 95%.

24. At various times since the proceedings were commenced, the plaintiff has served a number of reports going to quantum. They include a vocational assessment report and an occupational therapist's specialist report. She has also served various statements of particulars, specifying various forms of economic loss, as well as past and future expenses. She also claims for various forms of gratuitous care. Nothing in this material elucidates how all the various amounts and heads of damage claimed relate to the supposed delay in diagnosis and treatment between 2012 and 2016.

The Defendant's Motion

25. The relief sought in the defendant's notice of motion has already been identified. The fundamental complaint raised on behalf of the defendant concerned the topic referred to in UCPR r 31.36(1)(c), namely, the alleged failure of the plaintiff's evidence to identify the causal relationship alleged between the breach of duty and the damage alleged to have been suffered.

26. To the unsophisticated eye, a reading of all the plaintiff's material would suggest that, by some means or other, the plaintiff is attributing legal responsibility to the defendant for every type of ailment and suffering she had incurred since at least 2016, without specifying how that was related to the alleged period of delay in diagnosis between around 2012 and 2016.

27. In effect, the defendant's submissions sought summary dismissal of the claim because of a failure to put forward any evidence capable of demonstrating that form of connection. In addition, the submissions also identified various related issues with the pleading. One of those complaints is a failure to identify the relevant risk of harm against which the defendant is said to have failed to take precautions (see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7] (Basten JA)). The complaints also include a failure on the part of the pleading to tie the alleged failure to diagnose and treat the condition to the relevant forms of harm that are pleaded. The defendant's submissions make the related complaint that there was a failure to comply with UCPR r 31.36(1)(c) at the time of the commencement of the proceedings and ongoing.

28. Lastly, the defendant complains about what is said to be a want of prosecution on the part of the plaintiff, being again this inability, so it is said, in the face of repeated requests, to file proper causation evidence of the kind required by UCPR r 31.36(1)(c).

29. At the hearing of the motion, counsel for the plaintiff accepted the essence of some of the complaints of the defendant, but from the material sought to identify what is said to be at least a viable case against the defendant.

30. In effect, the case appeared to entail two limbs of damage. The first is a claim for psychiatric harm based on what the plaintiff learned about the potentially adverse effects to her from the failure to diagnose and treat her condition between 2013 and 2016. It was submitted that there is support for that contention in the report of Dr Clark.

31. Second, there emerged a claim by the plaintiff for damages in respect of a closed period from around 2013 up to the time of her surgical resection in early 2017, during which she says she unnecessarily suffered various physical ailments as a result of the failure to treat the symptoms of lung cancer she was experiencing.

32. At a more fundamental level, counsel for the plaintiff submitted that this case should be placed in the "not ready" list to allow for time to pass to determine whether the contingency identified by Dr Pendlebury, namely, a material reduction in the plaintiff's life expectancy, comes to pass. It was submitted that the plaintiff's solicitors were placed in an invidious position soon after they received the report of Dr Lynch, in that the plaintiff and her solicitors were on notice that she may have suffered at least some harm. It was submitted that with the time limitation period commencing to run, they were obliged to file proceedings, but did so in the knowledge that the most serious potential form of harm, namely, the return of the cancer with all the difficulties that would entail, was still a contingency.

Consideration

33. In a case such as this, I do not consider that the Court can, consistent with its obligations in the Civil Procedure Act, simply place the matter in some "not ready" list to see if the circumstances will transpire at some later time as to whether the plaintiff's lung cancer will return.

34. It is true that in some circumstances, such as where children have suffered a particular form of injury, that the cases are treated in that fashion, to see whether their relevant injury stabilises or deteriorates over time. However, that is fundamentally different to the present circumstance.

35. At best for the plaintiff, she appears to have a nuanced case for two particular, discrete forms of harm. What is submitted is that somehow the Court should simply place the case on hold to see if she can mount a new case depending upon events that may transpire well into the future.

36. In my view, such an approach would be fundamentally unfair to the defendant, who is exposed to the stresses and exigencies of litigation. Generally speaking, once litigation is commenced, it needs to be undertaken.

37. Further, as was submitted, there appear to be some methods by which the plaintiff can take steps, even within her current limitations, to further investigate whether her cancer has returned, bearing from mind that it will soon be six years since she underwent surgical resection.

38. Accordingly, to the extent the plaintiff seeks to have the matter simply placed in abeyance then, I refuse to take that course.

39. The difficulty with much of what the plaintiff submitted about the case as currently framed is that I struggle to see how that is consistent with the current pleading or is supported by the evidence.

40. I have already referred to Dr Clark's report. On my reading of that report, I do not see Dr Clark's opinions to be in any way tied to the effects of the delay in time between 2013 and 2016. It appears to read as though Dr Clark is opining upon the effects of the diagnosis in 2016 on the plaintiff's mental state.

41. In a case where the fundamental complaint concerns alleged delay in the appropriate treatment, the pleadings, reports and particulars must come to grips with the difficult causation issues that arise from differentiating between whatever loss or damage a plaintiff has suffered in a general sense and whatever loss or damage a plaintiff is said to have suffered as a consequence of the delay in treatment. To date, the pleading and the material filed has failed to do that.

42. I considered whether the appropriate course was to summarily dismiss the matter, as the defendant submitted should occur. However, given the position faced by the plaintiff and her solicitors, I can see a possibility that a viable case could be put together if it was properly pleaded and supported by material and that there may now be serious limitation problems if the matter was dismissed without the ability to re-file. I will not take that course.

43. Instead, I think it appropriate to strike out the statement of claim, because it fails to sufficiently plead material facts to indicate a relevant chain of reasoning between the alleged failure to take the relevant precaution and the alleged loss that was suffered.

44. I accept the defendant's contention that the pleading does not properly identify the relevant risk of harm that followed from a failure to take those precautions when treating the defendant. In the way the case was put on behalf of the plaintiff, this is no mere quibble. While it might be that a failure of a general practitioner to diagnose lung cancer at an appropriate time would cause a plaintiff physical ailments, the possibility that one of the forms of harm that may ensue is psychiatric harm from a delay in the diagnosis is not straightforward.

45. Further, in striking out the pleadings, I will also allow the plaintiff time to file a proposed amended statement of claim, with a view to the matter returning before me to see whether leave to file it will be granted.

46. I note that one current iteration of the statement of claim in draft form at present seeks to join another doctor. The plaintiff can consider whether, at the time that leave is sought, that proposed defendant should be served.

47. Further, within the time allowed for the further pleading of the matter to return, the plaintiff will now need to properly address the requirement in UCPR r 31.36(1)(c). It should be self-evident from what I have stated today that I do not regard Dr Clark's report as complying with that rule.

48. Finally, it will be a matter for the plaintiff and her legal and medical advisers to determine whether, in the time before the matter comes back, she wishes to undergo the further investigations necessary to ascertain whether her cancer has returned.

49. Accordingly, the Court makes the following orders:

1. The statement of claim filed on 10 December 2020 be struck out.

2. On or before 20 February 2023, the plaintiff is to serve on the defendant:

(a)   a proposed further amended statement of claim,

(b)   a proposed further amended statement of particulars; and

(c)   a report in accordance with Uniform Civil Procedure Rule 31.36(1)(c).

1. The matter will be listed for mention before Justice Beech-Jones on Tuesday 14 March 2023 at 9.30am.

2. Otherwise order that the plaintiff's notice of motion filed 24 October 2022 be dismissed.

[The parties addressed on costs]

1. Order that the plaintiff pay the defendant’s costs of the Notice of Motion filed 24 October 2022.

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Amendments

22 November 2022 - [38] - typographical error corrected.

Decision last updated: 22 November 2022