Sanders v Hampson

[2000] QSC 467

SUPREME COURT OF QUEENSLAND

CITATION:

Sanders v Hampson & Others [2000] QSC 467

PARTIES:

VICKI JOY SANDERS
(plaintiff)
v
ELIZABETH HAMPSON
(first defendant)
and
ANDREW BELL
(second defendant)
and
THE CORPORATION OF THE TRUSTEES OF THE ORDER OF THE SISTERS OF MERCY IN QUEENSLAND
(third defendant)

FILE NO:

S5729 of 1999

DIVISION:

Trial Division

DELIVERED ON:

14 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2000

JUDGE:

Mackenzie J

ORDER:

The application is dismissed with costs to be assessed.

CATCHWORDS:

DAMAGES – BREACH OF CONTRACT/NEGLIGENCE – PERSONAL INJURIES – leave to amend statement of claim – insufficient evidence to justify amendment – res ipsa loquitur.

Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594,

COUNSEL:

D J Kelly for the plaintiff
DH Tait for the defendant

SOLICITORS:

Ehrich Monahan & Tisdall for the plaintiff
Tress Cocks & Maddox for the defendant

1. MACKENZIE J:    The applicant plaintiff commenced proceedings by writ on 18 June 1999 for damages for negligence and/or breach of contract occasioning personal injuries.  The claim arose from administration of an epidural by the first respondent during the performance of a procedure by the second respondent.  The third respondent operates the hospital where the procedure was performed. 

1. The date of the procedure was 16 June 1996.  The writ was issued on the last day before an action based on negligence expired. 

1. The application is for an order that the plaintiff have leave to amend her statement of claim by adding a paragraph to the effect that as against the first respondent the plaintiff relies on the doctrine of res ipsa loquitur.  The existing allegations in paragraph 4 of the statement of claim include failure to exercise due care, skill and caution in carrying out the procedure, failure to exercise the care and skill to be expected of a reasonable medical practitioner in all the circumstances, and carrying out the procedure negligently so as to cause neuropathic pain syndrome. 

1. The plaintiff has elected trial by jury.  The medical reports obtained by her so far do not disclose any evidence that the kind of injury suffered by her does not ordinarily occur without negligence.  On the contrary, the reports disclosed for the purposes of the application accept that impingement of nerve roots occasionally occurs during the procedure, in one case and, in the other, that it is impossible to avoid nerve roots in such a procedure and that the plaintiff has suffered a fortuitous rare but significant complication of a procedure performed in a proper and competent manner. 

1. The applicant submits that she might rely on res ipsa loquitur provided the tribunal of fact concludes the following:

1.That there is an absence of explanation of the occurrence that caused the injury;

2.That the occurrence was of such a kind that it does not ordinarily occur without negligence; and

3.That the instrument or agency that caused the injury was under the control of the first respondent. 

These propositions are taken from Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594, 602.

1. It was submitted that the plaintiff does not assert that res ipsa loquitur is a principle on which it must succeed at the trial.  However, it is submitted that it is a matter on which the plaintiff should be allowed to rely "if the trial proceeds and the evidence admitted allows it to do so".

1. It was said that it is not the case that the chamber judge should determine, at a time before the trial, whether the principle can be applied by the trial judge at the end of the hearing.  It was submitted that that would be tantamount to suggesting that the court should determine whether negligence would also be inapplicable prior to the issue being determined at trial. 

1. The difficulty with these propositions is that as the evidence stands, there is not even a scintilla of evidence supporting the conclusion that the fact that the plaintiff suffered the consequences leads to an inference that the first respondent performed the procedure negligently.  That being the case, at least the second step contemplated in Schellenberg is missing. 

1. On the evidence as it stands there is no evidence of specific negligence.  It would also not be open to leave the issue of res ipsa loquitur to the jury since there is not an available inference that some unidentified negligent act on the part of the first respondent must have been the cause of the applicant's unfortunate condition.

1. It is not appropriate, in my view, to give leave to amend simply on the basis of a hope by the applicant that something may turn up in future to allow res ipsa loquitur to be relied on.  If such evidence is obtained, it is open for an application to amend to be made on the basis of it.  However, to do so on the present state of evidence is unjustified and premature.  The application is dismissed with costs to be assessed.