Sawkins v Australian Capital Territory
[2023] ACTSC 73
•10 March 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Sawkins v Australian Capital Territory |
Citation: | [2023] ACTSC 73 |
Hearing Date: | 10 March 2023 |
DecisionDate: | 10 March 2023 |
Before: | Mossop J |
Decision: | See [22] |
Catchwords: | PRACTICE AND PROCEDURE – Application to rely on further expert reports, amend defence and to require experts to give evidence in conclave – where application made in close proximity to hearing – where further expert reports have caused defendants to abandon prior concession as to causation – where defendant had previously indicated that only further reports as to quantum would be sought – whether leave should be granted to allow reliance on further reports – application allowed – defendant to pay plaintiff’s costs of application on solicitor and client basis |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 507, 1611, 1205, 1211, 1241, 1401 |
Cases Cited: | Pryce v Dunlap [2016] ACTSC 338 Smith v Children Australia Inc [2022] ACTSC 310 |
Parties: | Robert Sawkins (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel D Hooke SC with K Kumar (Plaintiff) M Windsor SC (Defendant) |
| Solicitors United Legal (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 528 of 2021 |
MOSSOP J:
Introduction
This matter is a medical negligence claim listed for hearing on 20 March 2023 for five days. The matter was listed in July 2022 with the consent of the parties. One issue between the parties is whether the lumbar puncture procedure carried out on the plaintiff caused either a lumbar haematoma and a lower thoracic haematoma, or just a lumbar haematoma.
The matter before me involves two applications in proceeding made by the defendants. Both applications are opposed by the plaintiff. Those applications variously seek the various orders which may be summarised as follows:
A. Application in proceeding dated 13 February 2023
1. That the defendant be granted leave pursuant to r 1205(1)(g), or alternatively r 1241(3)(a) to rely on two reports:
a. Report of Professor Marcus Stoodley, dated 15 October 2022; and,
b. Report of Dr Scott Dunkley dated 5 January 2023.
2. That the defendant be granted leave to amend its defence pursuant to r 507.
B. Application in proceeding dated 6 March 2023
1. That the defendant be granted leave pursuant to r 1205(1)(g), or alternatively r 1241(3)(a) to rely on two supplementary medical reports:
a. Supplementary report of Professor Marcus Stoodley, dated 19 February 2022; and,
b. Supplementary report of Professor Neil Simon dated 3 February 2023.
2. That the court order that:
a. The experts variously give conclave evidence in different groups; and,
b. That the expert neurosurgeons attend a joint conference and be required to form a joint report.
As I understood the applications, the orders relating to the joint conference and the joint report were only required in the event that the additional medical reports were permitted to be relied upon.
These reasons are prepared in circumstances where it is necessary to urgently make a decision on the applications because the hearing date is only four business days away. They therefore do not do full justice to the detailed and helpful submissions that I received from the parties. In particular they do not recite the factual chronology of the proceedings in any detail although that chronology is recorded in the submissions and chronology provided by each of the parties.
Rule 1205 permits directions about the time for service of an expert report as well as any other direction about expert evidence. Rule 1241 is a provision that relates to service of expert reports. In addition to those two rules the defendant also relied upon r 1401 which is the general directions making power of the court. The relationship between r 1401 and r 1241 was explained in Pryce v Dunlap [2016] ACTSC 338 at [7] and Smith v Children Australia Inc [2022] ACTSC 310 at [9]. Rule 1205 seems to be in the same position as r 1401, namely a directions making power which influences the operation of r 1241. As a consequence, because r 1241 does not govern the present circumstances, the requirement for exceptional circumstances in r 1241(4) does not apply.
The essential point made on behalf of the defendants is that as a result of the report of Dr Stoodley, it has an arguable defence on liability. That arises in the following circumstances. The plaintiff’s claim is for medical negligence relating to the conducting of a lumbar puncture procedure at the base of his spine. There were two such procedures conducted. No complaint is made in relation to the first. It is the second that is of significance. The defendant now admits that the second procedure was conducted negligently. It also admits that this led to the formation of an epidural haematoma and some consequential neurological injury. That haematoma occurred at the L4/L5 level in his spine. There was a separate haematoma in the thoracic spine at T 10 – T 12. A report obtained late in the preparation of the case from Dr Stoodley expresses an opinion, based upon apparently higher quality scan images, that the two haematomas are separate. This leads to the availability of a factual contention that the thoracic haematoma was not caused by the lumbar puncture procedure but rather arose independently. If that contention was accepted then although the defendant admits liability for the lumbar puncture procedure and the consequences of it, a substantial amount of the disability presently suffered by the plaintiff would be the result of the haematoma in his thoracic spine. Given the quite dreadful disabilities that it appears to be uncontroversial that the plaintiff suffers from, the issue of the causation of the thoracic haematoma is one which may have very significant consequences for the liability of the defendant.
The opposition to permitting reliance upon the evidence of Dr Stoodley and a further report obtained from Dr Simon obtained subsequently and with the benefit of Dr Stoodley’s report comes from a number of circumstances.
First, the proximity of the hearing which is listed to commence in four business days’ time on 20 March 2023.
Second, the potential, if that hearing date is maintained, that the plaintiff will be unfairly affected by having to attempt to address this very significant new issue in a very limited time.
Third, the conduct of the defendant has been inconsistent with proper case management principles. In particular, it represented in the listing hearing questionnaire and other communications with the plaintiff that it had obtained expert reports other than certain reports going to quantum while at the same time attempting to obtain a report from Dr Stoodley. Having considered the expert material that it had obtained it agreed to file an amended defence which accepted liability for the consequences of the second lumbar puncture procedure and did not draw a distinction between the upper and lower haematoma with the effect that the proceedings took on the character of an assessment of damages. Further, quite apart from the extensive delays caused by Dr Stoodley and the preparation of his report, the defendant did not give notice that his report was being sought, was likely to be obtained or immediately serve his report once it was received.
Fourth, in reliance upon the change in complexion of the proceedings, the plaintiff did not insist upon the defendant providing answers to his interrogatories.
Fifth, although the defendant consented to filing the amended defence it did not pursue that filing when the registrar declined to accept consent orders because she asserted that an application in proceeding was required. (As an aside, it is not apparent to me that this approach was correct. It appears to me that the two notes to r 507, the first which relates to the need for an application in proceeding and the second which refers to the capacity of parties to consent to orders under r 1611 are alternative pathways to obtaining the court’s leave to amend pleadings after the close of pleadings. There does not appear to be a proper basis to read note 1 to the rule which refers to applications in proceeding as being a requirement which is cumulative upon the pathway allowed by note 2 which refers to consent orders.)
Sixth, any delay in the proceedings would further prejudice the plaintiff, who commenced proceedings in December 2021 following an operation occurring in 2016 and who undeniably suffers considerable difficulties as a result of the haematomas in his spine. That prejudice is not only financial prejudice as a result of not having the proceedings finalised but also the inevitable stress and uncertainty associated with the pendency of the proceedings.
The plaintiff contended that sanction should not be given to the inadequate way in which the defendant had dealt with the obtaining of the report of Dr Stoodley and its non‑compliance with directions that were made. The plaintiff contended that there was an inadequate reason to permit the withdrawal by the defendant of the admissions made that form the basis of the unfiled but consented to amended defence.
Given the necessity for an urgent decision on the defendant’s applications this is not an occasion on which to review the past statements of the court about the proper approach to procedural directions and the obligations on parties and their legal representatives to diligently prepare their cases in accordance with those directions. It is sufficient to say that it is extremely unsatisfactory that a party makes representations in a listing hearing questionnaire which are inconsistent with undisclosed steps that it is taking to obtain further evidence. While inevitably the pressure placed upon parties to proceed quickly towards the hearing gives rise to difficulties, the consequences of those difficulties should not result in inaccurate statements being made to the court or the consequences of inadequately diligent preparation being imposed upon the opposing party.
Notwithstanding all of the reasons why the present applications might be refused, I am satisfied that, in substance, they should be allowed and the defendant should be permitted to rely upon the additional expert evidence of Dr Stoodley and Dr Simon. The fundamental reason for reaching that conclusion on the balancing exercise necessarily involved is the apparent substance of the issue raised by Dr Stoodley and the potential for that to have a very significant consequences for the outcome of the case. The proposition of Dr Stoodley is that the two haematoma are physically separate and as a consequence the thoracic haematoma was not caused by the lumbar puncture which caused the lumbar haematoma. That position is agreed to by Dr Simon. It is apparently based upon higher resolution imaging than was used by other experts. Insofar as there has been any response from the experts engaged by the plaintiff, that is reflected in Dr Flecknoe-Brown’s opinion which effectively relies upon the principle of logic known as Occam’s Razor to suggest that there is more likely to be a single cause of the two haematoma rather than separate coincidental causes of each. If the factual position of the defendant’s experts is accepted, it would significantly alter the factual basis for the case. It is not appropriate to compel the defendant to run a case which appears to its experts to be based on a factually incorrect premise when that factual premise may be of great significance to the ultimate scope of its liability.
In reaching this conclusion I have been fully conscious of the prospect, indeed, the likelihood, that the allowing of the present applications will have such consequences for the plaintiff that the plaintiff will ultimately need to seek the vacation of the hearing date. I have taken into account not only the consequences for the substance of the case but also the personal cost imposed upon the plaintiff as a result of the delay to the resolution of his proceedings. I have also taken into account the fact that judicial resources have been allocated to the resolution of the case. I have had regard to the prospect that the five days allocated may not in any event have been sufficient to conclude the case but also the fact that making use of the allocated time even in circumstances where it was not possible to conclude the case would be a proper and useful contribution to the resolution of the dispute and hence of the resources of the court.
Although costs are not a balm for all ills caused in circumstances like the present, it is clear that the plaintiff should be protected, to the full extent possible from any adverse costs consequences arising from the allowing of the present applications.
The defendant made an oral application for leave to withdraw the admissions that it made at the time of the attempt to file the amended defence. That application is, in my view, unnecessary because the granting of leave to file an amended defence necessarily captures within it the withdrawal of the admissions earlier indicated and consented to.
I will make an order permitting reliance upon the various reports and an order requiring groups of witnesses to give evidence concurrently.
At present I am minded to make an order for a joint report to be prepared by Doctors Flecknoe-Brown, Dunkley, Cochrane and Stoodley addressing the issues referred to at paragraph 27(c)(v) of the plaintiff’s written submissions but I will hear the parties in case they will say anything more about that issue.
The orders I make are:
1.The defendant may serve the following expert reports by the dates indicated:
a.Report of Professor Marcus Stoodley dated 15 October 2022 by 23 December 2022.
b.Report of Professor Marcus Stoodley dated 19 February 2023 by 24 February 2023.
c.Report of Dr Scott Dunkley dated 5 January 2023 by 24 January 2023.
d.Report of Professor Neil Simon dated 15 February 2023 by 15 February 2023.
2.The defendant is granted leave to amend its defence in the form of Annexure B to the affidavit of Jessica May Steele affirmed on 13 February 2023.
3.Pursuant to rule 1211(1) of the Court Procedures Rules 2006 (Rules):
a.That the following groupings of experts give their evidence concurrently at the Hearing commencing 20 March 2023 pursuant to r 1211(1)(e) of the Rules:
Breach and Causation
Haematologists
· Dr Steven Flecknoe-Brown (Plaintiff)
· Dr Scott Dunkley (Defendant)
Neurological experts
· Dr Neil Cochrane, Neurosurgeon (Plaintiff)
· Professor Marcus Stoodley, Neurosurgeon (Defendant)
· Dr Neil Simon (Defendant)
Damages
Urologists
· Dr Dominic Lee, Urological Surgeon (Plaintiff)
· Dr Phillip Katelaris, Urologist (Defendant)
Occupational Therapists
· Nancy Stephenson, Occupational Therapist (Plaintiff)
· Susan Borthwick, Occupational Therapist (Defendant)
Rehabilitation Physicians
· Dr Susan Rutkowski, Rehabilitation Physician (Plaintiff)
· Professor Richards Jones, Consultant Physician, Rehabilitation Medicine (Defendant)
Vocational Specialists
· Dr Robin Mitchell, Occupational Medicine Specialist (Defendant)
· Justin Clark, Psychological Consultant (Defendant)
· James Hill, Vocational Consultatn (Defendant)
· Tegan Drake, Labour Market Researcher (Defendant)
· Georgia Whitley, Registered Psychologist (Plaintiff)
· David Smith, Physiotherapist (Plaintiff)
· Dr John Davis, Consultant in Occupational Medicine (Plaintiff)
4.Doctors Flecknoe-Brown, Dunkley, Cochrane, Stoodley and Simon meet not later than 20 March 2023 to identify the matters on which they agree, identify the matters in which they disagree and the reasons why and to try and resolve any disagreement and produce for the court a joint report identifying the matters on which they agree, the matters in which they disagree and the reasons for any such disagreement.
5.Those experts are directed to address in their joint report:
a.Whether the plaintiff suffered from two different haematoma formed independently of each other.
b.On the balance of probabilities, the cause of the plaintiff’s distal myelopathy.
c.Whether on the balance of probabilities the thoracic haematoma is causally related to the second lumbar puncture performed on 20 January 2016.
d.Whether on the balance of probabilities the injuries and disabilities alleged in the statement of claim were caused by the second lumbar puncture performed on 20 January 2016 or the thoracic haematoma.
6.The defendant is to pay the plaintiff’s costs of the application in proceedings dated 13 February 2023, and 6 March 2023 on a solicitor and client basis.
7.Liberty to apply to the duty judge on 12 hours’ notice for any further directions arising out of these orders or for the purposes of the hearing.
8.Liberty to apply is granted to the plaintiff to apply to Mossop J or the trial judge for any additional costs order arising out of the present applications or the orders made as a result of them.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: |
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