Savill v Hussain - [2020] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SAVILL v HUSSAIN & ANOR
[2020] SADC 155
Reasons for Decision of Her Honour Judge Schammer
2 November 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULARS - FURTHER AND BETTER
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - IRRELEVANCE
Deborah Savill (Applicant) claims damages from Country Health South Australia Local Health Network (Respondent) for personal injuries allegedly sustained by her, when her ulnar nerve and artery were transected during left carpal tunnel surgery undertaken at the Riverland General Hospital on 5 August 2015. There is a dispute as to whether that surgery was undertaken by Dr Hussain, a General Surgeon, or Dr Ahmed, a Registrar, under Dr Hussain's supervision.
The Applicant seeks orders, inter alia, for leave to file a Third Statement of Claim (Third SOC) and an order that the Respondent provide further and better discovery. The application is opposed.
By the proposed amended pleading, the Applicant seeks to put in issue the sufficiency of the surgeon’s qualifications and/or experience, without pleading particulars as to what is alleged to be ‘sufficient’ qualifications and experience. The Respondent considers those pleadings and others which use the terminology ‘reasonable’ and ‘limited’ (insofar as those terms refer to requisite qualifications, experience and/or training of the surgeon) require further particularity in order for the pleading to provide the Respondent with fair notice of the case against it.
Held:
The proposed pleadings provide fair notice of the case advanced against the Respondent, such that the Respondent will not be taken by surprise at or in the preparation of the matter for trial.
The documents requested are directly relevant to matters in issue, namely the qualifications and experience of the General Surgeon and the Registrar.
Orders:
1.   The Applicant has leave to file and serve the Third SOC within 14 days.
2.   The Respondent is to make further and better discovery of:
(a) A complete copy of Dr Hussain’s log book of surgeries for the two years prior to 5 August 2015;
(b) The Riverland Regional Hospital’s list of surgical procedures performed by Dr Husain and Dr Ahmed on 5 August 2015;
(c) Full details of Dr Ahmed’s training, qualifications, log book of surgeries and her position at the hospital on 5 August 2015; and
(d) All additional notes and reports relating to the subject surgery of the Applicant on 5 August 2015 made by any medical and/or nursing staff in relation to the surgical procedure.
3.   I will hear the parties further on the issue of costs and any consequential orders.
Civil Liability Act 1936 (SA) ss 40, 41, referred to.
Fergusson v Country Health South Australia Local Health Network and Ors DCCIV-14-1919, Decision No 1 of 2018; Parish v Northern Adelaide Local Health Network Incorporated DCCIV-16-916, Decision No 1 of 2019; Pope and Ors v Harris Orchard [2010] SASC 354; H Stanke & Sons Pty Ltd and Anor v O’Meara (2007) 98 SASR 450; Williams v Australian Telecommunications Commission (1988) 52 SASR 215, 216; Arthur Young & Anor v Teico International & Ors (1995) 182 LSJS 367; Nitschke and Ors v Foraco Australia Pty Ltd and Anor (2014) 120 SASR 162; Marini v MLH Insurance Brokers Pty Ltd & Ors (2004) 237 LSJS 288; Sullivan v Krepp [2020] SASC 97; Davies v Chicago Boot Co Pty Ltd (No.3) [2007] SASC 399; Shahin Enterprises Pty Ltd v Virgo Industries Pty Ltd (Virgo) [2019] SASC 94; Brus v Australian Capital Territory & Anor [2007] ACTSC 83; Kondis v State Transport Authority (1984) 154 CLR 672, considered.

SAVILL v HUSSAIN & ANOR
[2020] SADC 155
Introduction

Deborah Savill (Applicant), claims damages from Country Health South Australia Local Health Network (Respondent) for personal injuries allegedly sustained by her, when her ulnar nerve and artery were transected during left carpal tunnel surgery undertaken at the Riverland General Hospital on 5 August 2015 (surgery).
Application
By FDN 15, the Applicant seeks orders, inter alia, for leave to file a Third Statement of Claim (Third SOC) and an order that the Respondent provide further and better discovery (application). The application is supported by the affidavits of Joanna Louise Andrew affirmed on 15 July 2020 (first Andrew affidavit) and 15 September 2020 (second Andrew affidavit).
The application is opposed.
In addition to detailed verbal submissions heard on 15 October 2020, I have received and considered Written Submissions of Applicant dated 23 September 2020 (Applicant’s Written Submissions) and Second Respondent’s Written Submissions dated 6 October 2020 (Respondent’s Written Submissions). I have also had regard to the affidavit of Mary Therese Karpinski affirmed on 6 October 2020 (Karpinski affidavit).
Factual Background
The action originally named two respondents, Dr Rafat Hussain, the General Surgeon who carried out the surgery (or alternatively, the doctor who supervised the surgery undertaken by a Registrar, Dr Ahmed) and the Respondent, the operator of the Riverland General Hospital.
The Statement of Claim (SOC), as initially pleaded, contained allegations of negligence directed against Dr Hussain relating to an alleged lack of due care and skill by him in the performance of the surgery, or alternatively by him in his supervision of Dr Ahmed in the performance of the surgery, and his failure to identify and repair the injury during the surgery. It pleaded the Respondent was vicariously liable for Dr Hussain’s conduct and in breach of its contract with the Applicant to provide to her medical care, advice and treatment ‘with care, skill and attention of a reasonable and competent professional standard’.[1]
[1] SOC at [6].
At all material times, Dr Hussain was employed by the Respondent. Upon being notified of this, the Applicant discontinued the action against Dr Hussain.
On 23 October 2019, the Applicant filed a Second Statement of Claim (Second SOC) as of right, which included additional allegations of negligence against Dr Hussain and the Respondent. The Second SOC pleads that Dr Hussain carried out the surgery when he knew or ought to have known that ‘he was not sufficiently qualified to do so’[2] and ‘was not sufficiently experienced to do so’.[3] In the alternative, it alleges that Dr Hussain ‘[f]ailed to identify that Dr Ahmed was not sufficiently experienced to conduct’ the surgery[4] and had permitted her to do so ‘when he knew or ought to have known that she was not sufficiently experienced to conduct the surgery even with supervision’.[5]
[2]    Second SOC at [24.6].
[3]    Second SOC at [24.7].
[4]    Second SOC at [25.1].
[5]    Second SOC at [25.2].
As such, the Second SOC puts in issue the ‘sufficiency’ of Dr Hussain’s experience and qualifications and the ‘sufficiency’ of Dr Ahmed’s experience.
The manner in which the Second SOC was drafted did not reflect the fact the action against Dr Hussain had been discontinued. The Third SOC was drafted to properly reflect that position and to provide further particulars of the allegations relating to the qualifications and experience of Dr Hussain and Dr Ahmed, in circumstances where the Respondent had informed the Applicant of alleged deficiencies in that respect.
The Third SOC has had various iterations. On 29 January 2020, the Applicant’s solicitors wrote to the Respondent’s solicitors enclosing a proposed draft amended pleading and seeking further and better ‘particulars’ of matters including Dr Hussain’s logbook of surgeries for the two years prior to the surgery, a list of surgical procedures undertaken by Dr Hussain and Dr Ahmed and complete details of Dr Ahmed’s training and position as at the date of the surgery.
By letter dated 20 February 2020, the Respondent’s solicitors informed the Applicant’s solicitors that it objected to the proposed amended pleading, as it contained insufficient particulars of why the Applicant alleged Dr Hussain was not ‘sufficiently qualified’ and/or not ‘sufficiently experienced’ to conduct the surgery or to supervise Dr Ahmed, and why Dr Ahmed did not have ‘sufficient experience’ to conduct the surgery. The Respondent declined to accede to the Applicant’s request for the documents requested by the Applicant on the basis that they were not directly relevant. The Respondent relied on the decisions of Master Blumberg in Fergusson v Country Health South Australia Local Health Network and Ors (Fergusson)[6] and of Master Norman in Parish v Northern Adelaide Local Health Network Incorporated (Parish).[7]
[6] DCCIV-14-1919, Decision No 1 of 2018.
[7] DCCIV-16-916, Decision No 1 of 2019.
Thereafter, the Applicant revised the proposed draft pleading to its present form, the Third SOC and repeated her request for discovery of the previously mentioned documents. The Respondent remains opposed to the proposed amendments on the basis that the Third SOC does not comply with the rules as to pleadings, as it does not give the Respondent fair notice of the case against it. The Respondent maintains that the Applicant must identify what she says is ‘reasonable’, ‘appropriate’ and ‘sufficient’ qualifications, experience and training to conduct the surgery.
The application was filed in the absence of the Respondent’s consent to the filing of the Third SOC, and the Respondent’s continued refusal to discover the documents as requested.
Application to file Third SOC
Applicable Rules
The application is for leave to file and serve the Third SOC.
The Respondent has not filed an application seeking further and better particulars of the Second SOC, despite that pleading containing allegations using the language complained of by the Respondent, namely the terms ‘sufficiently qualified’ and ‘sufficiently experienced’, which the Respondent submits require further particularisation.
In her Written Submissions, the Applicant contended that the Court should only consider the merits of the proposed changes to the SOC as included in the Third SOC. She acknowledged that those amendments should only be permitted if the Third SOC complied with the rules as to pleadings and was not vulnerable to a strike out application. In the absence of any application having been filed by the Respondent, the Applicant stated that she ‘will consent to the Court determining whether there is a need for further and better particulars at this point…’.[8]
[8] Applicant’s Written Submissions at [15].
In the Respondent’s Written Submissions, it stated:[9]
The Applicant asserts that some of the matters complained of by the Second Respondent were included in the 2SOC and are not properly raised as objections to seek leave to file the 3SOC. It is asserted that the issue needs to be considered in the context of an implied application for further and better particulars from the Second Respondent.
[9] Respondent’s Written Submissions at [5].
However, during the argument, counsel for the Respondent raised at the very outset a submission that the Court should consider the application (insofar as it related to the pleadings) only as an application to amend and therefore in the context of the rules relating only to amendment, and not to the more prescriptive rules as to further and better particulars.[10]
[10] T 20.14-23.
The Respondent’s counsel submitted that it was not necessary for the Court to be satisfied of any substantial prejudice to the Respondent before denying leave to the Applicant to file the Third SOC. It was submitted that it was sufficient to refuse the application if the proposed pleading failed to provide fair notice of the case.
In response to specific questioning by me as to how that submission fit with the Respondent’s contention that the Second SOC lacked particularity, counsel for the Respondent stated:[11]
… insofar as there are paragraphs that were contained within the second statement of claim it is the proposed amendments which create the vice. The amending parts are the parts that we complain about, effectively.
[11] T 24.15-19.
However, as the argument unfolded, it became apparent that in fact, the vice complained of by the Respondent was in both the Third SOC and the Second SOC (and specifically in paragraphs 24.6, 24.7, 24.10, 25.1 and 25.2 of the Second SOC).
As such, insofar as the matters complained of are contained in the Second SOC, I intend to proceed as if the Respondent has filed an application for further and better particulars with respect to the relevant disputed pleadings.
The relevant rules are the Uniform Civil Rules 2020 (UCR).
Pursuant to UCR 12.1, the Court may make any order that it considers appropriate in the interests of justice. Further, pursuant to UCR 12.2, the Court may, in making orders, have regard to the object of the UCR, namely ‘to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings…’.[12]
[12] UCR 1.5.
UCR 69.2 provides that the court has a discretion to grant leave to a party to amend a claim or pleading.
Both parties agreed that as outlined by White J in Pope and Ors v Harris Orchard,[13] an application to amend should not be permitted if the proposed pleading does not comply with the rules as to pleadings, or is vulnerable to be struck out on the grounds of non-compliance.
[13] [2010] SASC 354 at 24.
As such, it must follow, that the court is required to consider whether the proposed amended pleading suffers from a want of particularity, such that it does not comply with the pleading rules in Chapter 7, Part 7 of the UCR.
In order to comply with UCR 67.2, the pleading must be in the requisite form (and format), as concise and precise as practicable and:
1set out the affirmative facts relied on by the Applicant to establish her claim;
2identify any statutory provision relied upon by the Applicant to establish her claim; and
3give fair notice of her case to the Respondent so as to avoid the Respondent being taken by surprise at or in preparation for trial.
The pleading must not contain inconsistent allegations of fact except if expressed as alternatives, irrelevant or unnecessary information, material that is evasive, ambiguous, scandalous, frivolous or vexatious; or be an abuse of process of the court.
Unlike previous iterations of the rule, UCR 67(2) does not contain an express prohibition on the pleading of ‘the evidence or the arguments by which they are to be proved’. As observed by the Full Court in H Stanke & Sons Pty Ltd and Anor v O’Meara,[14] the distinction between material facts and the evidence relied upon to prove those facts is not always easy to maintain. In some cases, it is difficult to plead material facts without, in effect, pleading the evidence by which those facts will be proved.
[14] (2007) 98 SASR 450 at [78].
The Rules reflect what was said by King CJ in Williams v Australian Telecommunications Commission (Williams) with respect to the 1987 Rules, namely:[15]
The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of the questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the Rules as to res judicata and issue estoppel. The second function is to give to the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise. These fundamentals remain unaltered by the new Rules. Moreover, that general principle which governs the application of all procedural rules, namely that ‘rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice’ (citation omitted), applies with undiminished force to the new Rules as to pleadings.
[15] (1988) 52 SASR 215, 216.
As summarised by Lander J in Arthur Young & Anor v Teico International & Ors (Teico),[16] the Rules contemplate that a pleading must contain both sufficient material facts and particulars of the claim as to give fair notice of the case to be made against the other party at trial, thus minimising the risk of injustice resulting from surprise. He stated:[17]
Whether the material facts and whether sufficient particulars have been pleaded must depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case. None of those matters can be considered in isolation any more than each of the paragraphs of the pleading can be considered in isolation.
[16] (1995) 182 LSJS 367.
[17] Ibid at 370.
What, in fact, constitutes fair notice, will depend on the facts and circumstances of each case, and having regard to the pleadings as a whole.[18]
[18] Nitschke and Ors v Foraco Australia Pty Ltd and Anor (2014) 120 SASR 162.
The court is entitled to take into account the scope of the investigation and preparation a respondent will be required to undertake if further material facts or particulars are not provided.[19]
[19] Marini v MLH Insurance Brokers Pty Ltd & Ors (2004) 237 LSJS 288 at [14], per Besanko J.
Having regard to the language used in UCR 67.2, the potential for ‘injustice’ to a respondent ‘at or in preparation for trial’ is therefore relevant to the Court’s consideration as to whether the proposed pleading gives ‘fair notice’ of the party’s case, having regard to the facts and circumstances of that case.
Similar, but not identical, considerations apply with respect to an application for further and better particulars.
UCR 70.2 states:
70.2—Order for better particulars
The Court may order a party to provide better particulars of its case by—
(a)     filing and serving an amended pleading containing such particulars; or
(b)     filing and serving a separate document containing such particulars.
Notes—
Ordinarily, if particulars are ordered, the order will be for an amended pleading.
However, the Court may order that particulars be provided in the form of a Scott Schedule or another document separate from the pleading, in which case the Court may also order a response to the better particulars.
Ordinarily the Court will only order better particulars in respect of a pleading if—
(a)     a want of particularity results in the pleading not complying with the pleading rules in Part 7; and
(b)     the party seeking the particulars will otherwise suffer substantial prejudice.
(my emphasis)
Although, UCR 2.3(1)(b) states that ‘notes, examples and references to prescribed forms are part of these Rules’, I agree with the submission made by counsel for the Respondent that the language used in UCR 70.2 is in permissive terms, and less prescriptive than that in r 102 of the District Court Civil Rules 2006 (SA) (2006 Rules), namely:
(3)The Court will only make an order for further particulars if satisfied that-
(a) the pleadings do not give fair notice of the party’s case; and
(b) the order is necessary to avoid substantial prejudice to the party in whose favour the order is to be made.
…
(5)No pleading is defective for want of particularity unless the missing particulars would be ordered under this rule. (my emphasis)
In my view, the question of what, if any, prejudice will be suffered by the Respondent is relevant to the Court’s consideration of either an application to amend or an application for further and better particulars. However, as to the test for the latter, the threshold is higher, ordinarily requiring that prejudice to be ‘substantial’, and, as outlined by Peek J in Sullivan v Krepp,[20] such prejudice must be actual, rather than merely theoretical.
[20] [2020] SASC 97 at [40].

Prejudice may be inferred from the circumstances, or be the subject of extrinsic evidence.[21] That prejudice can be in interlocutory processes, such as discovery of documents, noting the process of discovery is pivotal to a party’s preparation for trial, and in the presentation of the case at trial.[22]
[21] H Stanke & Sons v O’Meara (2007) 98 SASR 450 at [92].
[22] Davies v Chicago Boot Co Pty Ltd (No.3) [2007] SASC 399.
Ultimately, in considering the adequacy of pleadings, and the merits of the application, the Court must have regard to the interests of justice, and whether those interests will be served if the proposed amendments to the pleadings are allowed.
Applicant’s Submissions
The Applicant submitted that the Third SOC gave fair and adequate notice of the case to be advanced against the Respondent. That case had several layers, namely that not only was the surgery not conducted with due care and skill, but that the surgery should not have been undertaken by Dr Hussain, nor should Dr Hussain have supervised the surgery if it was undertaken by Dr Ahmed, as he lacked sufficient experience to do so. It was submitted that the particulars requested, namely how many years of experience and/or number of surgeries were required by a surgeon in order to be sufficiently experienced or qualified to undertake the surgery, amounted to a request for the pleading of evidence, rather than material facts.
Counsel for the Applicant submitted that at trial, the Applicant intended to advance a case, relying on the expert evidence of Dr MacKay that in open carpal tunnel decompression performed by a competent and experienced surgeon, the ulnar nerve and artery would not be seen, and if they were encountered, this would alert the surgeon to reorientate by identifying further anatomical landmarks so as to avoid causing harm to those structures. If harm was so caused, a competent and experienced surgeon ought to identify that injury at the time and take appropriate steps to remedy it.[23]
[23] Report of Dr MacKay dated 9 October 2019 at pp 16-17, Exhibit “JLA1” to the second Andrew affidavit.
Further, the Applicant referred to the opinion expressed by Dr Sach that:[24]
…Surgeons undertaking carpal tunnel surgery should be well aware of the anatomy and take measures to avoid inadvertent damage to adjacent critical structures including nerves and vessels. It should not occur in skilled hands, but occasionally does.
[24] Report of Dr Sach dated 24 August 2017 at pp 5-6, Exhibit “JLA3” to the second Andrew affidavit.
It was submitted that the order in which various steps were reported as undertaken during the surgery (namely checks for hemostasis occurring before the removal of the tourniquet), the failure to identify the injury during surgery or initially upon review and Dr Hussain’s subsequent referral of the Applicant to a plastic surgeon, were all matters which pointed to Dr Hussain having insufficient experience to either undertake the surgery or supervise the surgery.
It was submitted that when the pleading was considered as a whole, there could be no doubt that it provided fair notice to the Respondent of the case it was required to meet at trial and that nothing further was required in order for the Respondent to investigate and respond accordingly.
The Applicant submitted that the Third SOC made it clear that the ‘level of training and skill and experience’ of the doctors involved were clearly matters in issue, to be addressed by the experts at trial, and to be determined by the trial judge having regard to all of the evidence.
The Applicant further submitted that the terminology used, namely the words ‘reasonably’, ‘sufficiently’ and ‘appropriately’ were all words commonly used and capable of being understood by the Respondent, without further particularisation.[25]
[25] Citing the decision of Parker J in Shahin Enterprises Pty Ltd v Virgo Industries Pty Ltd (Virgo) [2019] SASC 94 in support.
On the issue of prejudice, the Applicant submitted that the Respondent had failed to identify any prejudice that would be suffered by it if the amended pleading was allowed, let alone ‘substantial prejudice’. It was submitted that irrespective of whether the pleading referred to a specific number of previous surgeries or years of experience, the Respondent’s enquiry and investigation to answer the pleading would be the same as if the pleading remained as proposed, with there being a requirement in each instance for the Respondent to address the same issues.
Respondent’s Submissions
The Respondent complains that paragraphs 3.7, 4.4, 24.8, 24.9, 24.12, 25.3, 25.4, 26 and 27 of the Third SOC do not contain sufficient material facts or particulars to give fair notice of the claim to be advanced against it.
It submits that insofar as the Applicant makes allegations of negligence against the Respondent, being a public hospital, relating to insufficient qualifications, experience or training on the part of either Dr Hussain or Dr Ahmed, it must identify what was, in fact, the appropriate level of such qualifications, experience and/or training necessary to satisfy the standard of care. The Third SOC did not do so, nor was there any expert evidence as to what was the appropriate level of qualifications, expertise and/or training necessary to meet the requisite standard of care.
It was submitted that there was no evidence to support the assertion that Dr Hussain had ‘limited’ training or experience, nor any pleading as to what comprised ‘limited’ training or experience.
Ms Karpinski deposed to records confirming that Dr Hussain is a fellow of the Royal Australasian College of Surgeons, with specialty in general surgery. She further deposed that the publicly available General Surgery Curriculum required a General Surgeon to be competent at performing carpal tunnel release.[26] As such, the Respondent submitted there was no evidence that Dr Hussain did not in fact, have the appropriate qualifications or experience to undertake the surgery.
[26] Karpinski affidavit at [3]-[4], Exhibits ‘MTK 1’ and ‘MTK 2’.
Further, it was submitted that at its highest, the only evidence upon which the Applicant could rely in support of the proposed pleading was that outlined in the report of Dr MacKay dated 9 October 2019, wherein Dr MacKay expressed the opinion that the failure of the surgeon to avoid the ulnar nerve and artery in this case was ‘more likely than not a lack of due training or skill’, which ‘may be due to limited experience or training’.[27]
[27] Exhibit “JLA1” to the second Andrew affidavit.
Counsel for the Respondent argued that in circumstances such as this, where the Applicant intended to run a case which had at its basis an allegation that a doctor should never have undertaken the surgery based on limited training and experience, despite holding appropriate qualifications to do so, the Applicant was required to plead what was the requisite level of training and/or experience (and/or qualifications) the doctor required in order to be reasonably competent to undertake the surgery. For example, if the Applicant’s case was that the surgery could only be competently undertaken by a hand surgeon or a plastic surgeon, this should be pleaded.
The Respondent relied on the decision of Master Blumberg in Fergusson,[28] wherein the Master referred to the reasoning of Justice Besanko in Marini v MLH Insurance Brokers Pty Ltd & Ors (Marini)[29] and of Justice Lander in Teico.[30]
[28] DCCIV-14-1919, Decision No 1 of 2018.
[29] (2004) 237 LSJS 288 at [14].
[30] (1995) 182 LSJS 367, 381.
In Marini, Besanko J was dealing with allegations in a proposed Statement of Claim relating to an alleged breach of a Shareholders Agreement which, inter alia, governed the terms of employment between an insurance broking business and its managing director. The pleading included an allegation that Marini had breached the agreement by:
…failing to write a reasonable amount of new insurance business commensurate with his experience and standing in the insurance brokerage business.
In addition, the pleading alleged Marini had failed to achieve key performance targets in certain areas.
Besanko J considered each of these allegations failed to provide sufficient material facts to enable the defendant to have fair notice of the case against him. As to the latter allegations, Besanko J determined the pleading failed to identify particular times the alleged breaches had occurred, creating an unreasonable burden on the defendant to investigate each of the allegations and the potential for him to be surprised at trial.
As to the former allegation, Besanko J stated that ‘the defendant is entitled to know what new insurance business the plaintiffs will allege he wrote and what level of insurance business the plaintiffs say he should have written’.[31]
[31] (2004) 237 LSJS 288 at [14].
In Teico, Lander J was asked to consider the adequacy of a Statement of Claim which alleged various breaches of retainer and duty of care by a firm of chartered accountants. The thrust of the complaint was the use of the word ‘properly’ in various paragraphs alleging breach of contract and breach of duty. An example of such a paragraph stated that in breach of the retainer and the duty of care, the defendant did not act in a reasonable or competent manner or with reasonable skill, care and diligence, as it did not:
…enquire or properly enquire as to the availability and suitability of any other tax effective proposals for the plaintiffs by counterclaim.
In considering each of the (disputed) paragraphs, Lander J noted that in none of them had the pleader indicated what would have been the proper discharge of the obligation and how it was that the defendant had failed to meet that proper discharge, such that it could be said that something was not properly taken into account.
Lander J stated:[32]
The plaintiffs’ case must be, in relation to those matters, either nothing was done, or something, but something less than appropriate was done. It would not allege the alternative, i.e. that something less than appropriate was done, unless it had some reason to do so. The plaintiffs must be able to give particulars of what would have been appropriate action and particulars of what was done, which would show the inappropriateness of the action, because unless it can do so, the plaintiffs have no case.
I have reached the conclusion that the pleading, in so far as it alleges a failure to properly do or not do something, is embarrassing and so lacking in particularity that the pleas cannot stand.
[32] (1995) 182 LSJS 367, 381.
Master Blumberg applied the same reasoning when determining the adequacy of the proposed amended pleadings in Fergusson.[33] That was a medical negligence case, wherein the plaintiff alleged he had developed an infection during the course of medical treatment undertaken at a hospital operated by the defendant. The plaintiff alleged, inter alia, that he developed and was exhibiting signs and symptoms ‘consistent with’ infection, and that this was not diagnosed when it should have been.
[33] DCCIV-14-1919 – Decision No 1 of 2018 at [95]-[99].
The disputed pleading was in a third party claim commenced by the defendant against a doctor, which rather than outlining the allegations in negligence and breach of contract against the third party, simply adopted the allegations as set forth in the plaintiff’s amended statement of claim.
The Master observed that in medical negligence cases, the issues were more subtle, and technical, than in many other negligence cases (for example, motor vehicle accident claims), such that in the absence of fair notice of the case against a respondent, there was the potential for substantial prejudice.[34]
[34] Ibid at [37] and [69].
The Master determined that pleadings which simply asserted the third party had failed to closely monitor the plaintiff for signs and symptoms of infection and to ensure his recovery followed an expected path contained insufficient particulars, in the absence of the defendant pleading what were the ‘signs and symptoms of infection’, nor identifying what was the ‘expected path’.[35] As such, he considered the third party had established prejudice, as he would need to prepare a case to counter a number of possibilities.
[35] Ibid at [67].
As to a proposed pleading that the third party had failed to investigate “properly”, or at all, the plaintiff’s signs and symptoms, the Master referred to Justice Lander’s reasoning in Teico, and determined that that the pleading was required to identify what was ‘proper’ investigation, in order for the third party to have fair notice of the case against him.[36]
[36] Ibid at [95]-[99].
The Master made similar observations with respect to a pleading which asserted a failure to carry out ‘sufficient’ investigations, examinations or tests to ascertain the plaintiff was suffering infection. He stated:[37]
The third party is substantially prejudiced in having to prepare his case to encompass multiple and unknown ‘sufficient’ investigations, examinations or tests.
[37] Ibid at [113].
Counsel for the Respondent submitted that I should adopt the same reasoning with respect to the Applicant’s failure to plead what it said amounted to ‘sufficient’ experience, training and/or qualifications.
The Respondent’s Written Submissions referred to ss 40 and 41 of the Civil Liability Act 1936 (SA) (CLA) which state:
40—Standard of care to be expected of persons professing to have a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care and skill is, subject to this Division, to be determined by reference to—
(a)     what could reasonably be expected of a person professing that skill; and
(b)     the relevant circumstances as at the date of the alleged negligence and not a later date.
41—Standard of care for professionals
(1)     A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession as competent professional practice.
(2)     However, professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3)     The fact that there are differing professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)     Professional opinion does not have to be universally accepted to be considered widely accepted.
(5)     This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of a risk of death of or injury associated with the provision of a health care service.
Counsel for the Respondent submitted that it was well recognised that there was ‘no duty of care imposed on a public hospital for it to have staff at a particular level’.[38] She submitted that the training and/or experience of either Dr Hussain or Dr Ahmed was irrelevant to the determination of the issue at hand, namely whether the surgery was conducted in a manner consistent with competent professional practice.
[38] T 24.22-25, relying on the authority of Brus v Australian Capital Territory & Anor [2007] ACTSC 83.
In addition, it was submitted that the pleading in its present form did not identify the ‘particular skill’ either Dr Hussain or Dr Ahmed held themselves out as having, or in what way any (identified) lack of training or experience caused a breach of the relevant standard of care. The Respondent further submitted it was uncertain whether the Applicant relied on s 41 CLA, and if so, whether the relevant practice area was that of a general surgeon or some other area of speciality.
Consideration/Rulings
General
A hospital owes a non-delegable duty of care to provide its patients with competent medical treatment, provided with due care, irrespective of whether the provider of such treatment is a registrar or a fellow.[39]
[39] Kondis v State Transport Authority (1984) 154 CLR 672.
As outlined by Connolly J in Brus v Australian Capital Territory (Brus),[40] while a public hospital does not owe a duty of care to provide a public patient with an express choice as to who is to perform their surgery, it does owe a duty of care to ensure its staff are adequately and appropriately qualified, such that they are competent to perform the range of procedures commensurate with their level of training.
[40] [2007] ACTSC 83 at [15],[ 17], [20] and [62].
In Brus, the plaintiff claimed damages against a public hospital arising from complications suffered by her following a vaginal hysterectomy undertaken at a public hospital by a Registrar under the supervision of specialist gynaecologist. During the surgery, the plaintiff’s right fallopian tube had prolapsed into the vagina, and it was the plaintiff’s case that this occurred due to the incorporation of part of the fallopian tube during the suturing to close the vaginal vault at the conclusion of the operation.
There was expert evidence that a potential cause of such prolapse could be poor surgical technique, and the experts agreed that a careful and experienced surgeon should not allow this to happen. As observed by Connolly J:[41]
…as poor technique was a recognised factor, it follows that it would be more likely that an inexperienced surgeon, or a surgeon with poor technique, would produce the result as a consequence of negligence.
[41] Ibid at [8].
The central issue in Brus therefore was the level of training and experience of the Registrar who undertook the surgery, there being no complaint as to the experience and qualifications of the eminent supervising specialist. Evidence was led as to the Registrar’s program of training, her performance on various examinations and observations made by others as to her surgical skill and technique. Evidence was also led as to the nature of surgery considered appropriate for Registrars to perform at their various levels of training and experience. The supervising specialist gave evidence as to each step he would take when performing the surgery if undertaken by a Registrar, how he would be in a position to closely observe those steps and the differing levels of scrutiny to which he would subject a Registrar, depending on their level.
Connolly J found that when the Registrar had conducted the surgery she had been subjected to at severely critical assessments of her surgical skills by at least three surgical consultants. He determined that during the surgery, the Registrar had inadvertently caught the plaintiff’s fallopian tube in the suture line. In making that finding he stated:[42]
It seems to me that, on all the medical evidence, this is the most likely reason for the prolapse of the tube. While I accept the expert evidence of a number of senior doctors that it is possible for this to happen even without any negligence when the procedure is performed by a skilled and competent surgeon with due care, I find, as a matter of fact, that this procedure was in fact performed by a surgeon who had significant adverse assessments of her surgical skills, and who had never performed such a procedure before. While she was under close observation by a experienced consultant, that consultant was under a misapprehension about her level of skill, and the particular aspect of the procedure that I find lead to entrapment of the fallopian tube in the suture occurred on the internal side of the sutured wound, which is outside the line of sight of both [the Registrar] and [the consultant].
[42] Ibid at [60].
In the within matter, the Applicant’s case contains several limbs, including one akin to that in Brus, namely that if the surgery was undertaken by Dr Ahmed, she had insufficient training or experience to conduct the surgery, even under supervision. In addition, the applicant alleges that Dr Hussain had insufficient qualifications and/or training and experience to undertake the surgery, or alternatively, to supervise Dr Ahmed in the performance of the surgery, or alternatively was negligent in the manner of that supervision.

The Applicant relies on the opinion of Dr MacKay to the effect that in carpal tunnel surgery performed by a competent ‘and experienced’ surgeon, the ulnar nerve and artery should not be seen, and that the transection of the ulnar nerve and artery in this case, and the surgeon’s failure to identify it and remedy it at the time, was more likely than not due to a lack of due care and skill, which may be due to limited training and experience.
Counsel for the Respondent agreed with the proposition that a surgeon’s skill may be informed by their level of experience, their qualifications and their training. Of course, a highly trained and experienced surgeon may, for whatever reason, demonstrate a lack of due care and skill on a particular occasion. Similarly, an inexperienced surgeon may have particularly high competence and skill levels.
However, as recognised by Connolly J in Brus, and stated by Dr MacKay, limited training or experience may be the underlying cause of a lack of due care or skill.
As such, it must follow, that a surgeon’s level of training and experience is directly relevant to the critical issue in dispute in this case, namely did the surgeon, whether that be Dr Hussain (either in his capacity as surgeon or as supervisor), or Dr Ahmed, act with the due care and skill which could reasonably be expected of a person professing that skill, namely the ability to competently perform carpal tunnel release surgery (and/or competently supervise a Registrar of Dr Ahmed’s level of qualifications, training and experience, undertaking such surgery).
Both the Second SOC and the Third SOC clearly put the qualifications, experience and training of both Dr Hussain and Dr Ahmed in issue.
It follows that I reject the submission made by counsel for the Respondent that if the Applicant is unable to plead what level of qualifications or what level of basic experience and/or training was required by the surgeon, there is no case with respect to that allegation of negligence.
Although neither pleading identifies what level of qualifications, training and/or experience was required of either (and/or both) of Dr Hussain or Dr Ahmed to fulfil the requisite standard of care, I agree with the Applicant’s submission that, in the particular facts and circumstances of this case, this is a matter of evidence.
I acknowledge that such reasoning appears to be inconsistent with that applied by Besanko J in Marini and particularly Lander J in Teico. However, they were very different cases, involving very different facts and circumstances.
Unlike the situation in Brus, the Applicant has no information as to Dr Ahmed’s qualifications, training or experience, and, other than the information contained in the exhibits to the Karpinski affidavit, no information as to the training and experience of Dr Hussain. As such, applying Justice Besanko’s reasoning in Marini, the applicant cannot plead what was Dr Hussain’s level of experience and training at the time of the surgery, nor can it plead what was Dr Ahmed’s qualifications, training and experience at the time of the surgery, as it simply does not have that information in the absence of the Respondent making further discovery.
I agree with the submission, that if it is the Applicant’s case that only a plastic surgeon or a hand surgeon has the necessary qualifications, experience and skill to undertake the surgery, then that should be pleaded. As I understand it, there is no expert evidence supporting such a pleading or proposition. Rather, the Applicant’s case, based on expert evidence, is that a reasonably competent and experienced surgeon would not have transected the ulnar nerve and artery and if they did, they would have identified that during surgery. The Applicant contends that the very fact the ulnar nerve and artery were transected, and this was not identified during surgery, demonstrates a lack of due care and skill on the part of the surgeon, as a result of their limited training and experience.
Further, the evidence of Dr Hussain will be critical at trial. It can be anticipated that such evidence may include specific details as to the manner in which he undertakes carpal tunnel surgery (and/or specific details as to the steps he takes when supervising a Registrar undertaking such surgery, including any differences in approach depending on the level of training of that Registrar). Such evidence is likely to include the frequency with which the ulnar nerve and artery are encountered during such surgery and appropriate steps to avoid damage to those structures. Insofar as there is any divergence of opinion amongst the medical experts, the Court will necessarily have regard to the relevant witnesses’ familiarity with the procedure, their qualifications and their breadth of experience, meaning Dr Hussain’s experience and qualifications (together with those of Dr Ahmed) are directly relevant to the issues in dispute.
I will deal with each of the proposed disputed paragraphs in due course.
Paragraphs 3.7 and 4.4
These paragraphs are contained only in the Third SOC.
Paragraph 3.7 pleads that at all material times the respondent:
owed a duty to patients, including the plaintiff, to provide medical treatment of a standard of a reasonably experienced, competent, careful and skilled surgeon. (my emphasis)
Paragraph 4.4 pleads that the respondent:
owed a duty to the plaintiff, to ensure that its servants, employees and agents were appropriately qualified, trained, experienced and skilled to provide medical services to members of the public, including the plaintiff. (my emphasis)
These paragraphs plead the content of the alleged duty of care owed by the Respondent. Although neither paragraphs 3.7 nor 4.4 strictly adopt the language used in s 40 CLA, in my view, that is irrelevant. Insofar as the Respondent denies that its duty extended to that as pleaded in either paragraph, it is at liberty to do so.
The Respondent submitted that in order for it to prepare its case, it was entitled to know, and needed to know, what the Applicant said was a ‘reasonable’ level of experience, and in what particular area (for example general surgery, or some other area).
The treatment undertaken by the Applicant was carpal tunnel release surgery.
Although not expressly worded as such, by paragraphs 3.7 and 4.4, the Applicant contends the Respondent owed her a duty of care to ensure the surgery was provided by a person who was competent, by virtue of their qualifications, experience and training, to undertake that surgery. The use of the words ‘reasonable’ and ‘appropriate’, being words commonly and routinely used in ligation of this type, does not, in my view, require further particularisation in this context. Consistent with the reasoning of Parker J in Virgo, it is for the trial judge to determine what was the duty of care owed and whether it has been fulfilled, by reference to the common law and the CLA.
I allow the proposed amendments.
Paragraphs 24.8, 24.9 and 24.12
Paragraph 24.8 pleads that Dr Hussain was negligent in that he:
Carried out the first surgery when he knew or ought to have known that by reason of his limited training and experience in this type of procedure he was not sufficiently qualified to do so. (my emphasis)
Paragraph 24.9 pleads that Dr Hussain was negligent in that he:
Carried out the first surgery when he knew or ought to have known that by reason of his limited training and experience in this type of procedure he was not sufficiently experienced to do so. (my emphasis)
Paragraph 24.12 pleads that Dr Hussain was negligent in that he:
Failed to inform the plaintiff that by reason of his limited training and experience in this type of procedure he was not sufficiently experienced to conduct her first surgery. (my emphasis)
The italicised words were included in the Third SOC but not the Second SOC. The emphasised words are those complained of by the Respondent, in the absence of there being any pleading outlining what is alleged to be the appropriate level (or levels) of qualification or experience, in terms of training, years of practice, level of seniority or otherwise, required by a person so as to render them theoretically competent to perform the surgery.
I agree with the Applicant’s submission that in the context of this case, the words used are not vague and to require the Applicant to plead to what amounts to ‘limited’ or ‘sufficient’ in the context of these paragraphs (and the other paragraphs referred to below) would require the pleading of evidence and opinion.
The pleading puts the issue of Dr Hussain’s experience and training in issue, being relevant in this case, as it was in Brus, to a determination of whether due care and skill was exercised in this instance. I am satisfied that the pleading provides the Respondent with fair notice of the case, such that the Respondent will not be taken by surprise at or in the preparation for trial.
It follows that I am not satisfied that insofar as the Second SOC used the terms ‘sufficiently qualified’ and/or ‘sufficiently experienced’ that the pleading will cause the Respondent to suffer ‘substantial prejudice’.
I agree with the Applicant’s submission that notwithstanding the pleading does not stipulate what the Applicant contends is sufficient qualifications or experience, in answering the allegations, the Respondent will necessarily be required to produce evidence pertaining to Dr Hussain’s competence to perform the surgery, which evidence is likely to include both expert evidence and evidence relevant to Dr Hussain’s qualifications, experience and training.
I allow the proposed amendments to the pleadings.
Paragraphs 25.3 and 25.4
Paragraph 25.3 pleads that Dr Hussain was negligent in that he:
Failed to identify that Dr Ahmed was by reason of her limited training and experience in this type of procedure not sufficiently experienced to conduct the first surgery. (my emphasis)
Paragraph 25.4 pleads that Dr Hussain was negligent in that he:
Permitted Dr Ahmed to conduct the first surgery when he knew or ought to have known that by reason of her limited training and experience in this type of procedure she was not sufficiently experienced to conduct the surgery even with supervision. (my emphasis)
The italicised words were included in the Third SOC but not the Second SOC. The emphasised words are those complained of by the Respondent, in the absence of there being any pleading outlining what is alleged to be the appropriate level (or levels) of qualification or experience, in terms of training, years of practice, level of seniority or otherwise, required by Dr Ahmed so as to render her theoretically competent to perform the surgery under Dr Hussain’s supervision.
These paragraphs relate to Dr Ahmed’s training and experience, and raise similar issues as were in dispute in Brus. I am satisfied that the pleading provides the Respondent with fair notice of the case, such that the Respondent will not be taken by surprise at or in the preparation for trial. Again, it follows that I am not satisfied that insofar as the Second SOC used the terms ‘sufficiently qualified’ and/or ‘sufficiently experienced’ that the pleading will cause the Respondent to suffer ‘substantial prejudice’.
I agree with the Applicant’s submission that notwithstanding the pleading does not stipulate what the Applicant contends is sufficient experience, in determining whether the surgery was conducted with due care and skill, insofar as there is evidence to support a finding that it was Dr Ahmed who performed the surgery, as was the case in Brus, the court will have regard to Dr Ahmed’s qualifications, training and experience. As such, in its preparation for trial, the Respondent is required to address Dr Ahmed’s proficiency and competency to conduct the surgery, for example by reference to expert evidence and evidence relevant to her qualifications, experience and training, and of observations made by others of her during her training, as to her technical expertise and surgical skills. This is the case, irrespective of the use of the words ‘sufficiently’ or ‘limited’ in paragraphs 25.3 and 25.4.
I allow the proposed amendments to the pleadings.
Paragraphs 26 and 27
Paragraphs 26 and 27 appear only in the Third SOC.
Paragraph 26 pleads:
The second defendant was negligent in that it permitted Dr Raffat (sic) Hussain and/or Dr Ahmed to conduct the first surgery when it knew or ought to have known that by reason of their limited training and experience in this type of procedure they were not sufficiently qualified or experienced to conduct the plaintiff’s first surgery. (my emphasis)
Paragraph 27 pleads:
In the alternative, permitted Dr Raffat (sic) Hussain to supervise Dr Ahmed in the conduct of the first surgery when it knew or ought to have known that by reason of his limited training and experience in this type of procedure he was not sufficient (sic) qualified or experienced to supervise Dr Ahmed in the conduct of the plaintiff’s first surgery. (my emphasis)
As to paragraph 26, the same considerations apply to the proposed amendments at paragraphs 24.8, 24.9, 24.12, 25.3 and 25.4.
As to paragraph 27, this relates to whether Dr Hussain was competent to supervise the surgery, if it was conducted by Dr Ahmed.
The court will have regard to Dr Hussain’s qualifications, training and experience, in determining his competency to supervise the surgery and whether he did so with due care and skill. As such, in its preparation for trial, the Respondent is required to address Dr Hussain’s proficiency and competency to conduct the surgery, for example by reference to expert evidence and evidence relevant to his qualifications, experience and training, and Dr Hussain’s evidence as to the steps undertaken in the surgery and how he supervised those steps. This is the case, irrespective of the use of the words ‘sufficient’ in paragraph 27.
I allow the proposed amendments.
Application for Further and Better Discovery
The Applicant seeks an order that the Respondent make further and better discovery of:
1A complete copy of Dr Hussain’s log book of surgeries for the two years prior to 5 August 2015;
2The Riverland Regional Hospital’s list of surgical procedures performed by Dr Husain and Dr Ahmed on 5 August 2015;
3Full details of Dr Ahmed’s training, qualifications, log book of surgeries and her position at the hospital on 5 August 2015; and
4All additional notes and reports relating to the subject surgery of the Applicant on 5 August 2015 made by any medical and/or nursing staff in relation to the surgical procedure.
The Respondent does not object to making discovery of any additional documents that fall within category 4 (above), but it contends that the other three categories of documents sought are not directly relevant to the issues in dispute. In doing so, the Respondent relies on the decision of Master Norman in Parish.[43]
[43] DCCIV-16-916, Decision No 1 of 2019.
Part 13 of the UCR outlines the discovery obligations of the parties.
Pursuant to UCR 73.7, the parties must make discovery of discoverable documents that are or were in their possession, custody or power by filing and serving a list of documents within 28 days after the close of pleadings. For the purpose of that rule, a document is a ‘discoverable document’ if it is ‘directly relevant’ to an issue raised in the proceeding, as defined by the pleadings. UCR 73.7(6) states:
Without limiting the generality of the definition of discoverable document in subrule (5), a document is directly relevant in the context of discovery made by a party to the proceeding if it is intended to be relied on at trial by that party or it supports or adversely affects a party’s case.
In light of my earlier ruling, the pleadings put in issue the qualifications, training and/or experience of both Dr Hussain and Dr Ahmed. The first, second and third categories of documents sought by the Applicant are directly relevant to these issues. As to the documents in the first category, although the request covers only the previous two years, in my view, those documents are directly relevant so as to demonstrate Dr Hussain’s recent experience and familiarity with various surgical procedures as at the date of the surgery, including his recent experience and familiarity with carpal tunnel surgery.
Further, there is a real issue as to whether it was Dr Hussain or Dr Ahmed who performed the surgery. In my view, the documents in the second category of the request are also directly relevant to the determination of that issue, as they should comprise a record of the nature of the surgery undertaken by each practitioner on the relevant date and the time that surgery was undertaken.
Orders
1The Applicant has leave to file and serve the Third SOC within 14 days.
2The Respondent is to make further and better discovery of:
(a)A complete copy of Dr Hussain’s log book of surgeries for the two years prior to 5 August 2015;
(b)The Riverland Regional Hospital’s list of surgical procedures performed by Dr Husain and Dr Ahmed on 5 August 2015;
(c)Full details of Dr Ahmed’s training, qualifications, log book of surgeries and her position at the hospital on 5 August 2015; and
(d)All additional notes and reports relating to the subject surgery of the Applicant on 5 August 2015 made by any medical and/or nursing staff in relation to the surgical procedure.
3I will hear the parties further on the issue of costs and any consequential orders.