Ronning v Goldberg

[2014] NSWSC 1942

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ronning v Goldberg [2014] NSWSC 1942

Hearing dates:

11 December 2014

Date of orders:

11 December 2014

Decision date:

11 December 2014

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

Leave granted to the plaintiff to file in court the Amended Statement of Claim in the form annexed to the affidavit of Babiba Thomas sworn 5 December 2014.
Special fixture for hearing for five days on 2 February 2015 is confirmed
Parties are to use their best endeavours to agree on a schedule for the witnesses to give their evidence during that week and to agree as to those whose evidence should be deferred on the understanding that the deferred evidence will go only to damages.
Parties granted liberty to approach the List Clerk with a view to securing a separate later date for any further hearing in accordance with the schedule agreed in accordance with direction 3.

Costs of the motion be that party's costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE – application to amend pleadings – no question of principle

Category:

Procedural and other rulings

Parties:

Roslyn Gai Ronning (plaintiff)
Dr Tammy Goldberg (defendant)

Representation:

Counsel:
C Barry (plaintiff)
E Muston (defendant)

Solicitors:
Gajic Lawyers (plaintiff)
Avant Law (defendant)

File Number(s):

2014/70777

Publication restriction:

None

Judgment

1. HER HONOUR: This is an application to file an Amended Statement of Claim in medical negligence proceedings commenced by Roslyn Gai Ronning against Dr Tammy Goldberg.

2. The position of the defendant in response to the proposed amendment was to indicate that, in the main, it was not opposed, but that the amendment created a potential difficulty for the hearing date. The proceedings are currently listed for five days commencing on 2 February 2015. There is a measure of urgency in respect of the matter because the plaintiff, who alleges a failure to diagnose breast cancer, now suffers from the fact that the breast cancer has metastasized to the brain, with the result that her prognosis is poor. The defendant acknowledged that the matter in those circumstances warrants as urgent a hearing as can be achieved with fairness to both parties.

3. I am persuaded that it is appropriate both to grant leave to amend in accordance with the application and to confirm the hearing date. My reasons for reaching that conclusion will be stated briefly.

4. First, it seems to me that the amendments primarily raise a more detailed factual chronology of the events leading up to the critical date of 18 March 2009. The original pleading, which was significantly shorter and simpler than the proposed amended pleading, simply asserted that on that date the plaintiff retained the defendant to diagnose and test the plaintiff for more aggressive symptoms.

5. The particulars of negligence in paragraph 8 of the original pleading alleged various aspects of negligence, all focussed on or as at that date, primarily including failure correctly to diagnose the medical condition of the plaintiff as at that date and a variety of other alleged failures to advise or carry out investigations and examinations.

6. The amended pleading takes the chronology back to an earlier point in time. I am informed by the plaintiff that those amendments arise from the opportunity to inspect the plaintiff's medical records produced recently on subpoena by the defendant.

7. Mr Muston, who appears for the defendant, apprehended that the amendments on that account raised the spectre of the negligence allegations reaching back into an earlier point in time.

8. Mr Barry in his submissions has expanded upon the way in which the case is intended to be put on the strength of the amended pleading. I am satisfied on the strength of what he has said that Mr Muston was, if I may put the matter in colloquial terms, boxing at shadows.

9. Mr Barry has explained that it is intended by the inclusion of that additional factual material, certainly to strengthen the plaintiff's case, but not to allege negligence at any earlier point in time than the critical meeting of 18 March 2009.

10. In my view, the dictates of justice require in fairness to the plaintiff that she be allowed to amend factual recitations in that way. I do not think any inappropriate measure of prejudice flows to the defendant on that account.

11. The further difficulties for the hearing date raised by Mr Muston are twofold.

12. First, he submitted that, even leaving aside the proposed amendment, there is a potential difficulty for the defendant in meeting the plaintiff's claim because the plaintiff's expert, Professor Boyle, has recently served a further report, served at the end of November, which Mr Muston submitted represents a departure from her earlier opinion. The report addresses aspects of the plaintiff's prognosis and future treatment.

13. After hearing from both parties on that issue, I am satisfied that it can appropriately be addressed by the ingenuity of the trial judge in hearing most of the evidence and certainly all of the evidence on liability in the week presently fixed for hearing at the beginning of February and allowing the prospect of tidying up or finalising the case on damages at some later date.

14. I note in that respect that the defendant has qualified an expert who would be able to provide a report in time for the hearing date on 2 February 2015 but who is not available for cross-examination in that week. The plaintiff has indicated that she would take a co-operative approach in respect of allowing the hearing of that witness' evidence to be conducted at a later point than the presently scheduled hearing dates.

15. The second potential problem raised by Mr Muston relates to the implications of the proposed amendment and the further report of Professor Boyle for the evidence of other experts. He submitted that it would be vastly preferable to have all of the experts able to meet in advance of the hearing and give their concurrent evidence knowing precisely what the evidence on behalf of the plaintiff about prognosis and future treatment will be.

16. Plainly it would be vastly preferable for all of the evidence to be taken at the same time but, having regard to the plaintiff's state of health, I think this occasion calls for a more flexible approach.

17. For the reasons I have given, I think the second difficulty identified by Mr Muston can appropriately be addressed, again by the ingenuity of the trial judge.

18. The orders are:

1.    I grant leave to the plaintiff to file in court the Amended Statement of Claim in the form annexed to the affidavit of Babiba Thomas sworn 5 December 2014.

2.    I confirm the special fixture for hearing for five days on 2 February 2015.

3.    I direct the parties to use their best endeavours to agree on a schedule for the witnesses to give their evidence during that week and to agree as to those whose evidence should be deferred on the understanding that the deferred evidence will go only to damages.

4.    I give liberty to the parties to approach the List Clerk with a view to securing a separate later date for any further hearing in accordance with the schedule agreed in accordance with direction 3.

19. I order that the costs of the motion be that party's costs in the cause.

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Amendments

25 March 2015 - removed duplicate numbering in paragraph 19

Decision last updated: 25 March 2015