Schenke v Pik

[2019] NSWSC 102

Supreme Court

New South Wales

Medium Neutral Citation:	Schenke v Pik [2019] NSWSC 102
Hearing dates:	31 January 2019
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Quantum expert conclaves vacated
Catchwords:	CIVIL PROCEDURE – case management - no issue of principle
Category:	Procedural and other rulings
Parties:	Leigh Schenk (Plaintiff) Dr Justin H L Pik (Defendant)
Representation:	Counsel: S. Sciglitano (Plaintiff) M. Hutchings (Defendant)   Solicitors: Stern Law (Plaintiff) Meridian Lawyers (Defendant)
File Number(s):	2017/172380
Publication restriction:	Nil

EX TEMPORE Judgment - revised

1. This is a medical negligence case, where the plaintiff sues the defendant, a practicing neurosurgeon for the consequences of surgery carried out as long ago as 19 June 2008.  The surgery was performed in the Australian Capital Territory at a private hospital. It is not in dispute before me that the plaintiff's rights, and the liability of the defendant, in each case if any, are to be determined according to Territory law.

2. The plaintiff, according to the material I have seen, and there is no need to go into it in detail, underwent an L‑5/S‑1 microdiscectomy, and S‑1 rhizolysis to treat pre‑existing back pain and, in particular, radiculopathy by way of sciatica, affecting her left leg.  Although on the evidence I have seen, it appears that the surgery was technically successful, the plaintiff, regrettably, suffered the materialisation of a recognised complication of recurrent disc herniation.  The fragment which re‑herniated was very large, according to the operating surgeon, whose comments are incorporated in an expert's report filed in accordance with the rules.

3. A further microdiscectomy, referred to in the evidence as "re‑do" surgery, was carried out on 25 June 2008.  Again, on the limited material I have seen, although technically successful, it left the plaintiff with ongoing sequelae, which on her case is greater than the symptoms and disabilities she would have suffered had she not undergone the first surgery resulting in the re‑herniation.

4. The case in negligence as expressed in the amended statement of claim relates to an alleged unreasonable delay between the presentation of symptoms of re‑herniation and the performance of the “re-do” surgery.  It is said by the expert retained on behalf of the plaintiff that in all such cases, the corrective surgery should be undertaken with all due expedition as there is an increased risk of permanent damage, and, in particular, to the sciatic nerve and other neural pathways by reason of delay.  That is to say, the ongoing compression of the emerging sciatic nerve suffers injury which is not repaired by rhizolysis and release of the nerve from the compression.

5. It should be said that the defendant has pleaded reliance upon the limitation provisions in the relevant Territory legislation, which are in a form similar to those in the Limitation Act 1969 (NSW) governing claims after 2002. That is to say there is a fixed limitation period which commences to run on the date of discoverability of the cause of action by the plaintiff. As is the usual practice, that issue will have to be determined at the trial after all relevant evidence is led.

6. I have engaged in this rather long introduction to put in context what I am about to say about the application before me.  In accordance with the Court's usual practice, orders were made by consent for the conduct of conclaves of experts retained by the parties for the purpose of producing joint repoerts relating to the damages issues in the case.  There are reasons why it was thought conclaves of liability experts ought not to take place at this time.

7. Those orders were made by consent by the Common Law Registrar on 12 November 2018.  At that time, the plaintiff was represented, as she had been from the commencement of these proceedings in this Court in June 2017, by Gerard Malouf & Partners. 

8. The orders, as I have said, were made by consent.  This is what almost invariably occurs because the registrar will make such orders in any event in accordance with the requirements of the relevant practice note, which is Practice Note 11. Orders had previously been made on 11 April and 24 April 2018 that the liability experts would give evidence at the hearing without the need for them to confer and produce a joint report.  The orders of 12 November included the requirement that the parties arrange for the joint quantum experts' conferences to take place by 28 February 2019.  The plaintiff was to provide proposed assumptions and questions for the experts on or before 19 December, and the defendant was to respond by 30 January 2019.

9. In the circumstances that I am about to relate, the plaintiff's solicitors did not comply with that order, and did not apply for any extension of time to comply, at least on the material before me, and perhaps that was because 19 December was, I think, the last day of the 2018 law term.

10. An affidavit sworn by the plaintiff on 30 January 2019 was read when the matter was before me yesterday. It is apparent from it that on 17 December 2018 the solicitor handling the matter on her behalf informed the plaintiff that the firm was no longer willing to act for her.  Because there has been a claim of privilege over the rest of the conversation, I am entirely unaware of why the solicitors made that decision. I do not draw any inference from the claim for privilege, and I will not speculate as to why that decision was made.

11. There is no evidence as to what the plaintiff said or did when she was given that advice.  She also says that on 14 January 2019 the same solicitor emailed her and asked her to obtain new representation, confirming that the previous firm would not continue to act. Another email of 11 January indicated that a notice of intention of ceasing to act would be filed.  That document was, in fact, filed on or about 15 January 2019.  At that stage, anyway, the plaintiff acted promptly and through a person she knew, she was able to instruct her current solicitor, Mr Terrence Stern, who has filed a notice of change of solicitor.

12. It is clear that Mr Stern was concerned about the state of preparation of the case, and that he had some different views about the best approach to the management of the case from his predecessors.  He immediately indicated to the defendant’s solicitors, the experts concerned and the conciliator’s appointed that he was not prepared to make any undertaking to be personally responsible for the fees arising out of the conduct what are three conclaves relating to damages arranged with the agreement of the previous solicitors.

13. I must say I may have formed something of a jaundiced view about that.  It seemed to me that the effect of Mr Stern, with respect, writing to not only the defendants' solicitors, but also to the experts and facilitators in those terms was, even if it was not his actual intention, a measure calculated to completely “torpedo” the process regardless of the Court's standard practice in relation to the conclaves.  However, I will say that I understand that Mr Stern did not want to incur any personal liability in respect of those fees at a time when according to the affidavit evidence from the plaintiff's side of the record, his involvement was really intended to be somewhat exploratory at this stage.

14. All of this takes on added piquancy when I record that the matter is listed for hearing on 27 May next, with an estimate of 10 days.  I infer that Mr Stern has taken the matter on, on a limited basis at short notice.  I am informed he has retained Mr Michael B Williams SC, a very experienced advocate well known in the medical negligence area. But it seemed to me, I must say, that their involvement at this time is somewhat provisional. 

15. This is all, in its own way, somewhat unsatisfactory. I am not criticising the new lawyers. From the Court's point of view, the usual orders have been made for preparation, a hearing date had been fixed at the request of the parties, with an estimate the parties provided, however a great pall of uncertainty is now hanging over not only the conclaves but the whole of the proceedings, casting its shadow over the hearing date as well.  I cannot be satisfied that this matter will continue in the list in a proper fashion until that uncertainty is resolved one way or the other.

16. After the matter was before me yesterday, and I formed the view that the only way the conclaves could proceed was if the defendant made the choice - I made it clear I would not order him to do so – to assume responsibility for the whole cost of the conclaves that had been fixed for next week, I adjourned the matter for 24 hours to allow instructions to be obtained from the ‑in reality, the defendant’s insurer insurer ‑ as to whether the insurer wished to make that choice.  I have been informed by Mr Hutchings of counsel this afternoon that it is not prepared to.  I find that understandable, given what I have referred to as the pall of uncertainty surrounding the proceedings. Doubtless a commercial entity is as reluctant to throw good money after bad as anyone-else.

17. So in these circumstances, as things have transpired, the defendant now joins in the plaintiff’s application that I vacate the orders and cancel, as it were, the conclaves. That I am prepared to do.  I will pronounce those orders now.

18. For these reasons:

1. Vacate consent orders made by the Registrar for the conduct of expert conferences of the quantum experts on 12 November 2018;

2. Vacate the conferences, and each of them, fixed for the week commencing 4 February 2019;

3. Order that the defendants' costs thrown away by reason of these orders are the defendants' costs in the cause.

I make these additional orders:

4. Vacate the hearing of the balance of the motion filed on behalf of the plaintiff on 17 January 2019 fixed for 11 February 2019 and re‑list it before me at 9.30am on 13 February 2019;

5. The plaintiff to file and serve any further evidence in relation to the application for adjournment of the hearing, together with written submissions in support of that application, by close of business on 6 February 2019;

6. The defendant to file and serve evidence and submissions he relies upon in opposition to the adjournment application by close of business on Monday 11 February 2019;

7. The parties have liberty to approach my chambers in the event that the date of 13 February proves unsuitable.*

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* the date proved unsuitable and the motion was dealt with by consent on 11 February 2019 when directions were made for the future management of the matter and the hearing dates confirmed.

Decision last updated: 15 February 2019