Rosenberg v Kumarasinghe

[2002] NSWSC 1262

CITATION:	Rosenberg -v- Kumarasinghe [2002] NSWSC 1262
FILE NUMBER(S):	SC 20656/2000
HEARING DATE(S):	13 June 2002, 14 June 2002, 11 September 2002
JUDGMENT DATE:	10 December 2002
PARTIES :	Sharon Rosenberg -v- Zaveeni Kumarasinghe Executrix of the Estate of the late Dr. Hiary Kumarasinghe and Ors
JUDGMENT OF:	Acting Justice Taylor at 1

COUNSEL :	Mr. K. Rewell SC (Plaintiff) Mr. S. Davis (2nd Defendant) Mr. B Walker SC (3rd & 4th Defendants)
SOLICITORS:
CATCHWORDS:	Application to strike out Statement of Claim - professional negligence - adequacy of material filed pursuant to Part 14 r 6 SCR
LEGISLATION CITED:	SCR Part 31, Rule 6, Part 14C.
CASES CITED:	HG v The Queen (1999) 197 CLR 414 at 428 Micallef v ICI Australia Operations Pty Ltd & Ors [2001] NSWCA 274 Queensland v JL Holdings Pty Ltd (1997) 146 at 155
DECISION:	See paragraph 78

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Acting Justice Taylor

10 December 2002

20656 of 2000

Sharon Rosenberg -v- Zaveeni Kumarasinghe

Executrix of the Estate of the late Dr. Hiary Kumarasinghe

and Ors

Introduction

1 In these proceedings the plaintiff claims damages for negligence in respect of a failed laprascopic sterilization procedure carried out by the late Dr Kumarasinghe aT the Lithgow Hospital. The operation involved severing of the plaintiff’s fallopian tubes and the application of a clip called a Filshie clip by a device known as an applicator distributed by the third defendant (Endovasive) and manufactured by the fourth defendant (Femcare).

2 Subsequent to the operation the plaintiff became pregnant and gave birth to a son. The doctor’s estate, the operator of the hospital, the distributor and manufacturer of the clips are all sued for breach of duty and /or contract. The plaintiff claims for prenatal distress and the expenses involved in the child’s upbringing.

3 By notices of motion filed 11 April 2002 Endovasive and Femcare each sought orders that the amended statement of claim filed 21 February 2002 be struck out pursuant to Part 31 r 6 of the Supreme Court Rules.

4 The plaintiff has recently resolved her dispute with Femcare on the basis of a judgement for the company. I am to deal with the motion against Endovasive.

5 As the proceedings involve a professional negligence claim against the late Dr Kumarasinghe and the operators of the Lithgow District Hospital they have been entered in the Professional Negligence List and are governed by Part 14A of the Court’s Rules. As required by Part 14B r 6, the plaintiff has filed a number of expert reports in support of her claim. Essentially Endovasive contends that such expert opinion does not adequately support a breach of duty of care or sufficiently demonstrate a causal relationship between the said duty of care and the alleged injury. It argues the served material does not comply with s 79 of the Evidence Act 1995. Challenge is also made on the basis that the claim is unreasonable either by application of Part 15A r. 1 (Putting matters in issue unreasonably) or a failure to comply with the Civil Liability Act 2002. Endovasive seeks the intervention of the court at this early stage (before defence) arguing it would be oppressive to attempt to meet a claim which it contends is inadequately supported by expert evidence.

6 The applications are brought in the context of Part 1 r 3 which states that the overriding purpose of the rules is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings.

7 A separate basis for challenge is that the delay in compliance with directions has been so extensive that the proceedings ought be struck out. I do not think that dismissal of the proceedings on this basis is justified.

8 The notices of motion were conducted on the basis that Femcare was the manufacturer of the applicators and clips and Endovasive the distributor. Although it is contended that Endovasive is a deemed manufacturer by virtue of s 74A of the Trade Practices Act. I have assumed that the issues arising out of the manufacture of the clips and applicator are no longer in issue. Nevertheless I think there is utility in discussing, what are in my opinion, shortcomings in Dr Olsen’s report. I record those for the purposes of encouraging a different approach to those issues still remaining.

9 I approach the determination of the motions by outlining and discussing the medical sterilization procedure preformed by Dr Kumarasinghe, the claim against him and the hospital, the claim against Endovasive, shortcomings in the experts’ evidence served by the plaintiff and the plaintiff’s delay in the proceedings.

Discussion of the sterilization procedure

10 The object of the operation is to induce sterility by preventing the union of ovum and spermatozoan. The usual way of union is via one of the two fallopian tubes. The ovum is released from the ovary and travels towards the opening of the fallopian tube. On that passage it meets a spermatozoan and fertilization occurs. The zygote travels into the uterus where, in the case of success it implants. It then grows being nourished by the placental connection.

11 There are a number of ways of physically interrupting this process. The usual method being severing of the fallopian tubes. Another option is more radical surgery, such as hysterectomy.

12 The method involved here involves clipping the fallopian tubes. This overcomes the problem of regrowth of the tube. If this occurs by natural growth processes the conduit is re-established and the object of the operation defeated.

13 Clipping has the effect of preventing blood flow. The clip comprises a metal band which is constricted around the tissue. In the absence of blood flow there will be tissue necrosis and the tube will grow in a natural way to seal off the dead area. In this way the clip encourages a natural process by being blocked. In these circumstances part of a tube may drop off and migrate within the body. This is not in itself an adverse consequence. The distil end of the tube will have a clamp attached. This clip is often embraced in the abdominal wall. Again that in itself is not an adverse consequence but has significance for this case.

14 This is because one way of detecting the reason for a woman becoming pregnant after a Filschie clip sterilisation procedure is to ascertain whether the clips were applied properly. There are two aspects of this of interest.

15 First is to see whether the clip was placed on the correct anatomical structure. A second type of error is in failing to ensure that the clip was closed properly. This involves the doctor experiencing a sensation that the applicator has closed together with visual examination.

16 A third cause of mishap, which is the one alleged against Endovasive is that the applicator may have been out of calibration so that in the closed position it did not compress the clip sufficiently either for it to engage into the closed position or to compress the tissue sufficiently to stop blood flow which would otherwise lead to necrosis and the blocking of the tube.

17 A considerable difficulty in this case is that if the applicator was out of calibration it is still a matter of professional duty for the doctor to check the closure. This is a significant causation issue. The plaintiff raises the possibility of the clip being apparently closed, reopening and then spontaneously re-closing and later being found later to have migrated off the structure. Endovasive is sceptical that this could occur and argues that the relevant expertise to support such a hypothesis is in the field of metallurgy and mechanical behaviour.

The Plaintiff’s Claim Against the Doctor and the Hospital

18 The plaintiff alleges the ‘failure’ of the surgery was caused by negligence or breach of contract by the doctor or the hospital in the conduct of the surgery. During the hearing this was referred to as “operator error” and for convenience I will use the same phrase. It is alleged Filshie clips were not adequately secured to the fallopian tubes or that they were placed such that they ran a high risk of falling off.

19 Another of the alleged failures concerns failing to calibrate and service the applicator in accordance with instructions delivered. That is, every one hundred uses or every year which ever is earlier.

20 It is further alleged that the doctor advised the plaintiff that the prospect of becoming pregnant following surgery, called the “failure rate”, was one in every five hundred. She says that had she known that the “failure rate” was higher then she would have taken other steps to avoid conception.

The Claim Against Endovasive

21 Endovasive, it is alleged by implication, failed to advise the doctor that the failure rate was higher in certain circumstances. The allegation only arises by implication because it is not supported by particulars. Again the causation allegation in Paragraph 18 of the amended statement of claim is not supported by expert evidence.

22 It is not alleged that the applicators were supplied out of calibration but rather they were supplied without appropriate instructions or without a testing gauge or warning of the problems arising from the absence of those against the possibility of the applicator becoming out of calibration in the future. The plaintiff contends a failure to advise the doctor of the necessity to calibrate.

Shortcomings in the Experts’ Evidence Served by the Plaintiff

23 The plaintiff’s preparation is complicated by the fact that there has not yet being identified, if ever there could be, an expert competent in gynaecology and mechanical engineering is able to provide expert opinion as to the likely cause of the failure of the procedure. The approach the plaintiff has taken is to put forward expert evidence from Dr. Olsen on the basis of his engineering qualifications and Dr. Shelley Jones as a gynecologist.

24 Dr. Olsen is a consultant physician in occupational medicine, principally bio mechanical engineering. It is not in issue that gynaecological opinion is beyond his expertise. At the outset of the hearing of the motions the plaintiff’s senior counsel conceded this weakness and significant sections of the reports have been ruled through. This has gone some way to overcoming Endovasive’s complaints.

25 In his report of 5 June 2001, Dr. Olsen states that he has been briefed to

“offer assessment and opinions in relation to defects in relation to the use and operation of the Filshie applicator, the sterilisation procedure by application of a Filshie clip to the fallopian tubes and the history of the procedure as contained in various medical reports generally and also some specific correspondence in relation to the use of the procedure and the equipment in Australia”.

26 There are apparently a number of proceedings pending with respect to Filshie clips and the report of Dr Olsen is generic.

27 The controversy in the hearing of the motions centred on the defendant’s complaint that Dr. Olsen’s opinion is not wholly or substantially based on his specialised knowledge from his training, study or expertise as required by s.79 of the Evidence Act. A consistent thread in the justified criticism of the reports is that the ‘opinions’ expressed are merely his own inferences of the facts. The mischief in this was stated by the Chief Justice in HG v The Queen (1999) 197 CLR 414 at 428 as investing “those opinions with a spurious appearance of authority, and the legitimate processes of fact finding may be subverted”.

28 A further general criticism is the reports do not, in a clear way, identify the assumptions relied on. This is illustrated by the sentences on page 5 of the 5 June report;

“Based on the file containing correspondence, it is my understanding that an investigation was undertaken by John Hunter Hospital sometime in 1997 in relation to an unexpectedly large number of failed sterilization procedures which were performed using the Filshie clip technique and the equipment”

29 Whilst this might be regarded as an assumption on one view, it raises the issue of failure rates. The word unexpectedly invites comparison but the report does not contain the information to enable the comparison to be made. It is not in issue that failures occur.

30 Dr Olsen should justify the statement by reference to material which maybe is characterised by an assumption or introduces his own opinion on that material to reach the conclusion that the rate of sterilisation failure was unexpected. It is inappropriate to introduce this sensitive issue to the litigation in this way. It would be difficult to cross examine the witness on this statement without knowing the foundation upon which it is based on and the reasoning process involved. As the lawyers do not have the specialised knowledge, it is fundamental that they be put in a position where they can be properly instructed.

31 Dr Olsen has considered a deal of material, which he draws upon. Between pages five and eleven of his report he summarises that material under various heads. The defendants complain that they are selective and subjective. It seems to me if they are inaccurate or misleading in, for example, only recording one side of the discussion, then that is probably a matter for cross examination of Dr. Olsen. However, the decision making process is facilitated by there being common ground between experts as to the assumptions accepted by them. Ultimately this affects the quality and fairness of the trial.

32 Not all the criticisms were justified. For example, Dr Olsen was criticised for referring to the mechanical workings of the applicator and clips. The science involved appears so straight forward that I regard that aspect of his evidence as being within his specialised knowledge.

33 Nevertheless some of the summaries may confuse. The report should make it clear that the applicator’s subject of the proceedings are not those referred to in the summarised correspondence. As it stands, the summary of the “letter Endovasive to Dr. Brinsmead of 14.1.98” could mislead. It states “the applicators and clips were sent to Femcare UK and the advise received was that on initial inspection it appears that the calibration of the applicators was not within the correct specifications”. On page six, one of the summarised letters is from Professor Walters, the Head of Reproductive Medicine at the University of Newcastle to Dr. Wilson, the Director General, Public Health NSW Department dated the 14 May 1998. In that letter the summary states “the clips and applicators were returned to the manufacturer where two of the five applicators were seriously out of calibration”. It then goes on to set out the recommendations of a sub-committee. This material is not admissible to prove any facts in issue between the plaintiff and Endovasive because it is not relevant. It is not appropriate to use that material as an assumption or foundation for an expressed opinion the plaintiff relies upon as being adverse to Endovasive in this litigation.

34 Again these examples point to the need for the expert to state the assumptions.

35 The relevance issue also arises with respect to the summary on page seven of a Hunter Health media statement of the

15 May 1998. It is difficult to see what the relevance of a brief to Parliament is and the letters as summarised on pages seven

and eight.

36 On my reading of the correspondence, Dr Olsen appears to have been given a bundle of material which he has summarised between pages five and eleven to justify the comments that he makes on page eleven. It is at this point that the report faces its biggest difficulty. Dr Olsen does not explain the link between the assumptions and the comments that he makes. He says, for example,

“neither the manufacturer nor the Australian distributing agents suggest to various doctors, health departments and organisations that they correspond with, that regular servicing is not the only way that the effective use of the device can be guaranteed”.

In the context of this case such a statement is of great significance. The allegation is not made against the manufacturer and distributor that a checking device or gauge with an extra clip should be tried. What was colourfully described as the defendants senior counsel as “an air shot with an extra clip”.

37 Dr. Olsen does not link his expertise and experience to suggest a way in which the manufacturer should communicate to hospitals and surgeons about the surgical appliance. To do so would be outside his expertise.

38 At the top of page twelve, Dr, Olsen states,

“there is no caution advised that the operating obstetrician and gynaecologist should always merely inspect the clip and replace a new clip if not satisfied with the clip closure”.

To a layperson this is logical. However, it is a matter of specialised knowledge as to whether or not such a caution would be advised. That specialised knowledge is of a gynaecologist and I do not think that Dr. Olsen is in a position to offer an opinion about that matter.

39 The next sentence also creates a difficulty. Dr Olsen states;

the letter of Dr. Filshie to Dr. Walters does not acknowledge that the applicator may not be properly adjusted nor mention possible checks.

It is difficult to see what that means, whether it be a comment or a summary or whether it involves some expert’s viewpoint.

40 The statement under the heading “General Medical File” causes me concern. It appears that Dr. Olsen did not research the subject fully himself but relied on a number of journal articles forwarded to him by the plaintiff’s solicitors. I do not think this is a proper basis for offering the expert opinions expressed under comment on page fourteen of the June 2001 report.

41 The figure of checking calibrations every one hundred uses does not mean a great deal. The tolerance of such a figure is not the subject of expert opinion. For this reason alone to use the figure as the safe level is not permissible to prove causation.

42 The evidence of Dr. Olsen concerning failure rates proves little. He summarises a number of studies but it is not known whether the various rates in the figures are for calibrated or uncalibrated applicators. If the matter is to be approached on the basis of failure rate I would expect to see studies of an epidemiological kind. There are a variety of models of applicators and the figures do not distinguish between them. I do not think the material concerning failure rates has any utility. There is some confusion as to the stated rate in any event. In paragraph seven it is two in a thousand. In the particulars of 30 April one in one thousand.

43 There is no case supported by expert evidence as to the failure rate and the allegation should be removed from the statement of claim.

44 In my view Endovasive is correct in challenging significant sections of Dr. Olsen’s supplementary report of the 16 April 2002. He was asked whether applicator 159-7 would probably have been out of calibration at the time of the procedure. Dr. Olsen states that it is not possible to draw a “definite conclusion” that it was. That is somewhat of an understatement. It was over twelve months between the time of the procedure and the checking of the applicator. He says,

“One would have to accept there is at least a reasonable possibility that the applicator was out of calibration”.

There is no basis other than a logical one upon which Dr. Olsen can express this opinion. The time that applicators would be out of calibration is not identified by him nor is the specialized knowledge for such conclusion identified.

45 Dr. Olsen was also asked to advise as to the most probable cause of the failed sterilisation and subsequent pregnancy. He states that the clips were closed on the fallopian tubes; the closure was incomplete due to improper calibration of the applicator. In my view this can only be stated as an assumption. The witness cannot justify this statement as an expert opinion.

46 Dr. Olsen goes on to say that,

“Although Dr. Shelley Jones states that from memory the clips appeared closed, it is of course possible that a clip may appear closed due to the position of the hinge even if the hinge had not been secured to the clip, or in other words the clip is still not secure”.

This statement is little more than speculation and not admissible as expert evidence by him.

47 Similarly Dr. Olsen states on page seven of his report,

“Whether the clips were never closed or whether the clips were subsequently unlatched due to the precarious closure is not possible to determine. Nevertheless that combination of possibilities would in my opinion be the most likely explanation”.

Dr. Olsen choses not to rely on Dr. Shelley Jones’s recollection. His choice in doing so is not a matter of his expertise. In my view Dr Olsen does not advance sufficient reason or expert opinion to draw the inference that the clips migrated away from a fallopian tube because they unlatched as a result of being inadequately closed or were never closed.

48 There is no evidence to base an opinion that the applicator in Ms Rosenberg’s procedure was applicator 157/9. In his supplementary report Dr. Olsen does not take into account as one of the possibilities stated by Dr. Adams that the cause of the

“Failed sterilization” was the possibility of the surgeon not ensuring that the clip occluded the entire diameter of the fallopian tube.

49 Dr. Olsen refers to tests undertaken by Dr. Gilmore. These tests were with respect to applicators which are not those used in the relevant procedure. The resemblance between those applicators and the relevant devices is not known. Dr. Gilmore’s expertise is not known and the admission of his opinions is inadmissible hearsay. Recording them in Dr. Olsen’s report, even if they were relevant, cannot prove Dr. Gilmore’s observations.

50 Dr. Olsen reviews prior literature concerning the Filshie clip system. He refers to warnings in the literature to professional users. What is an appropriate warning to a patient is a matter for gynaecological evidence. Dr. Shelley Jones does not give an opinion concerning that. The specialized knowledge concerning appropriate warnings to a patient is not within Dr. Olsen’s expertise.

51 It is not expected that an expert should be a man for all seasons. However, more care needs to be taken in this case in distinguishing between assumptions and opinions and the attribution of those to the specialised knowledge of the expert.

52 Dr. Shelley Jones’s report was not addressed by Endovasive’s counsel. In so far as that report deals with engineering issues it is not admissible. I would grant leave for Dr. Shelley Jones to resubmit his report with the notation that he has complied with the Code of Conduct being empowered by Part 36 rule 13 c sub rule 2.

The Plaintiff’s Delay

53 The delays in the matter are such that Endovasive contends that the plaintiff has had sufficient chance to comply with the directions given from time to time in the proceedings. It relies on the decision of Micallef v ICI Australia Operations Pty Ltd & Ors [2001] NSWCA 274 in arguing that the case should not go forward.

54 The history of the proceedings appears from affidavits read by the defendants. The operation took place on 5 December 1997. The plaintiff instructed her solicitors in November 1999. Correspondence between the Area Health Service and the plaintiff’s solicitors concerning production of records took place regularly between December 1999 and October 2000. A statement of claim was filed on 2 December 2000. In early 2001 Femcare’s solicitor took steps to encourage the plaintiff to have the proceedings entered in the Professional Negligence List in accordance with Part 14C rule 6 of the Rules. The correspondence was also directed towards amendments to the statement of claim. Particulars were sought.

55 Five months later Freehills forwarded a further letter to Keddies requesting a response. As at April 2001 there had been no reply.

56 On the 26 September 2001 Femcare filed an application for an order that the proceedings be transferred to the Professional Negligence List. That application was returnable on 9 October. The evening prior to the application for transfer, the plaintiff served an expert report of Dr. Adams dated 28 September 2001 which concludes,

“The cause of failure in this case was due to operator error”.

57 On 9 October 2001, Assistant Registrar Howe ordered that the matter be transferred to the Professional Negligence List.

58 On 14 February, the day prior to the first status conference, the plaintiff served on Freehills a letter dated 9 December 2001.

59 At the status conference Deputy Registrar Younes noted the serious non-compliance with the rules, in particular, Part 14C Rule 6. The Registrar directed the plaintiff serve experts reports complying with the rules within twenty one days and also directed that any amended statement of claim be filed within seven days.

60 An amended statement of claim was filed and served on 25 February. The only amendment being that the name of the first defendant was changed.

61 The plaintiff sought calibration records from Femcare. This was resisted on the basis that the court had declined to make a discovery order.

62 On 28 March Deputy Registrar Younes directed the plaintiff to serve any further expert reports, provide copies of medical reports upon which the experts reports are based, provide copies of documents provided to the experts and provide a response to the request for particulars.

63 On 26 March Freehills noted their continuing objection to reports from Dr. Olsen on the basis that he was not an expert in relation to the allegations made by the plaintiff against Femcare.

64 On 11 April 2002 the fourth defendant filed and served a notice of motion. A few days later the plaintiff served Dr. Olsen’s report of 15 April. There was a status conference on 17 April when the Deputy Registrar directed the plaintiff’s solicitor file an affidavit explaining the reasons for non-compliance with the earlier order.

65 The plaintiff explains the delay through the affidavit of Christopher McManus sworn 30 April 2002, an associate in the firm of solicitors with the conduct of the matter on behalf of the plaintiff.

66 The plaintiff has now served the following documents:

Part 33 particulars
Experts reports from:
Dr. Adams dated 28 March 201 and 13 March 2002.
Dr. Olsen dated 5 June 2001, 14 March 2002 and 16 April 2002.
Dr. Shelley Jones dated 9 December 2002.
Copies of all records on which these experts have relied.
A report from Mr. Morgan, psychologist, dated 7 May 2001.
A report of Vincent’s Accountants dated 26 October 2001.
Further and better particulars in response to requests for particulars.

67 Mr. McManus raises the following matters:

a) The statement of claim was filed without experts reports to protect the plaintiff’s interests. The limitation period was to expire on 5 December 2000. Proceedings were commenced against Dr. Kumarasinghe who performed the sterilization procedure, the Area Health Service responsible for the hospital where the procedure was undertaken, Endovasive as distributor of the Filshie clip applicators and Filshie clips and Femcare as the manufacturer.

b) Dr Adams (gynaecologist and obstetrician) only had the clinical notes and medical records relating to the surgery for 28 March 2001.

c) Mr. McManus experienced some difficulty identifying and locating Dr. Shelley Jones. He commissioned a report from him in October 2001, which was provided in December that year. Dr. Shelley Jones disagreed with the opinions of Dr. Adams and suggested the failed sterilization procedure occurred as result of a “ mechanical failure by the clips or the clip applicator”. Mr. McManus then could not obtain appropriate experts reports in relation to the allegations concerning the failure of the clip applicator/clips without having the relevant calibration and service records.

d) The Area Health Service was first requested to provide these records on 21 February 2000. Regular correspondence then took place between the plaintiff’s solicitors and the second defendant to October 2001 requesting the records.

e) On 27 February 2002 Mr. McManus’s agents were advised of the serial numbers of the applicators in use and that the Area Health Service had not retained invoices and records of the Filshie clips until after mid 1998.

f) At a status conference on 15 February 2002, an order was made that the plaintiff file experts reports.

g) Prior to the status conference calibration and service records of the applicator were sought. There was a refusal from Spark Helmore on 1 March 2002 and the provision from Freehills of calibration/service records relating to applicators 7/027. No records were provided in relation to applicator 159/7.

h) Mr, McManus requested Dr. Olsen and Dr. Adams to provide reports based on this information.

i) On 19 March the plaintiff served the supplementary report of Dr Adams dated 13 March 2002, the report of Dr. Olsen dated 5 June 2001 and a further report of Dr. Olsen dated 14 March 2002.

j) In March there was further correspondence about the applicators and the service and calibration records in relation to both applicators were provided to the plaintiff.

k) A direction was made at a status conference on 22 March that all expert reports and further and better particulars were to be provided on or before 28 March.

l) Mr. McManus was unable to comply with the direction because he was dependant upon receiving an X-Ray report of his clients abdomen which had been performed post surgery and may have identified whether any of the Filshie clips were properly closed or open. He was not aware until 28 February 2002 that such an x-ray scan existed and was unable to brief Dr. Olsen with the material in sufficient time for a further report to be made.

m) In the result the x-ray films did not assist Dr. Olsen partly because, contrary to Dr Shelley Jones’s recollection, he must have removed the Filshie clips which had been applied at the time of the procedure the subject of the claim.

n) On the 5 April Mr. McManus sought a supplementary report from Dr. Olsen, which Mr. McManus received on 16 April.

68 It is self evident that the plaintiff must establish her case by evidence. The Professional Negligence List rules direct early preparation. Cases involving medical negligence always carry for the plaintiff the difficulty of establishing facts and circumstances, which the anaesthetised patient has no possibility of establishing from his or her recollection. The plaintiff had an unfavourable outcome, so far as she was concerned, to the sterilization. In that context it has been common in the past to sue possible defendants including the medical practitioners involved and the hospital.

69 The plaintiff carries the inherent problem of investigating the matter, absent an independent investigation. Her claim against the third and fourth defendants was for product liability.

70 In this context, the plaintiff has in my opinion taken all sufficient steps to comply with the strictures of the rules. It does seem to me from time to time the plaintiff has submitted to directions that, as a practical matter, were unlikely to be complied with.

71 In my opinion the plaintiff’s non compliance with directions and delay in providing material to the opponents is well short of the conduct which justified dismissal of the action as in the Micallef case.

72 In reaching this conclusion I bear in mind that each case must depend on its facts and there is no rigid formula. On occasion it will be right to terminate proceedings without determination of an issue between parties on its merits. I am entitled to take into account the wide variety of factors in arriving at a discretionary decision on a matter of practice and procedure having an impact on substantive rights. As stated by Justice Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings Pty Ltd (1997) 146 at 155:

“Justice is the paramount consideration in determining an application such as the one in question... Case management, involving as it does the efficiency of the proceedings of the Court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties”.

Second Defendant’s Case

73 The Mid-Western Area Health Services argues that the case against it is futile. However, it is arguable that the hospital owed a non delegable duty of care to the plaintiff in respect of the conduct of Dr. Kuamarsinghe in performing the operation. The report of Dr. Adams, if accepted, on the whole of the evidence attributes that the failure of the operation to “operator error”. Dr. Adams is not challenged.

74 For these reasons there is a sufficient case against the Area Health Service for the case to go forward.

75 Questions of prejudice are raised by the hospital resulting from the fact that Dr. Kumarasinghe has since died. It is common enough for cases of this kind to be concluded on the basis of the various medical records and notes brought into existence in respect of the procedure. Medical practitioners have commonly little recollection of the specific operation. That is evidenced in this case by Dr. Shelley Jones’s recollections. There is undoubtedly prejudice to the second defendant in not having instructions from Dr. Kumarasinghe but again I do not think it is sufficient to stop the case going forward.

76 As to costs, I will make no costs order in respect of the Femcare application because settlement has taken place. As to Endovasive’s costs I will order that the costs be reserved. The effect of this order is to make the costs of Endovasive’s costs in the proceedings.

77 Having regard to the settlement with Femcare, the concessions made by the plaintiff concerning the expert reports during the hearing and the guidance in this judgment I do not think it is appropriate to apply the Civil Liability Act at this point. However, the Act imposes ongoing obligations on the plaintiff’s legal practitioners.

78 Orders

1. The fourth defendant’s notice of motion is dismissed.
2. Direct the plaintiff file and serve a further amended statement of claim within six weeks of today.
3. The third defendant’s notice of motion is dismissed.
4. Direct the plaintiff cause the proceedings to be listed before
the Professional Negligence List Judge for directions at the first opportunity in 2003.
5. The second and third defendant’s costs of the motion are
reserved.

Last Modified: 02/06/2003