Sydney South West Area Health Service v MD
[2009] NSWCA 343
•16 September 2009
New South Wales
Court of Appeal
CITATION: Sydney South West Area Health Service v MD [2009] NSWCA 343 HEARING DATE(S): 16 September 2009
JUDGMENT DATE:
16 September 2009JUDGMENT OF: Allsop P at [1], [49], [66]; Hodgson JA at [2]; Sackville AJA at [57] EX TEMPORE JUDGMENT DATE: 16 September 2009 DECISION: 1. Appeal on liability dismissed.
2. Appeal on costs allowed; and order 2 made on 19 March 2009 set aside and in lieu thereof order that the plaintiff pay the costs of the first defendant of the proceedings.
3. Appeal as to non-publication order allowed, the non-publication order set aside and in lieu thereof order that the anonymization of the name of the plaintiff in the judgments be maintained and order that there be no publication in the media of names of plaintiff, her children or their father; and direct that there be a note placed on the file clearly recording that this order has been made.
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4. The second appellant pay the respondent’s costs of his appeal on liability.
5. The respondent pay the costs of the first appellant, Health Service, of its appeal in relation to costs.
6. The respondent to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified in relation to the costs of the first appellant’s appeal.CATCHWORDS: PROCEDURE – Pleading – Whether necessary for defendant to plead s 5O of the Civil Liability Act 2002 or material facts referred to in that section. - PROCEDURE – Amendment – Whether amendment should be allowed where other party intends to raise issue that it does not communicate – Trial by ambush. - PROCEDURE – Appeal – Error shown – Whether new trial should be ordered – Whether substantial miscarriage of justice shown. LEGISLATION CITED: Civil Liability Act 2002 s 42, s 5O
Trade Practices Act 1974 (Cth) s 51A
UCPR 14.14, 51.53CATEGORY: Principal judgment CASES CITED: Amalgamated Television Services v Marsden [2002] NSWCA 419
Aon Risk Services Australia Limited v Australia National University [2009] HCA 27
Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819
Baulderstone Hornibrook Engineering Limited v Gordian Runoff Limited [2008] NSWCA 243
Bowler v Hilda Pty Ltd (1998) 80 FCR 191
Cummings v Lewis (1993) 41 FCR 559
Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Freeman v GJ Coles & Co Limited [1967] 1 NSWR 297
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; (2008) 252 ALR 659
Insurance Australia Ltd v Motor Traders’ Association of New South Wales [2006] FCA 323
Mastronardi v New South Wales [2007] NSWCA 54
Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; 53 NSWLR 116
O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; 122 FCR 455
Port Stephens Council v Theodorakakis [2006] NSWCA 70
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Tory v Megna [2007] NSWCA 13
Western Australia v Bond Corporation Holdings Limited (1990) 99 ALR 125; [1991] ATPR 41-081
White v Overland [2001] FCA 1333PARTIES: SYDNEY SOUTH WEST AREA HEALTH SERVICE (first appellant)
Ian FULCHER (second appellant)
MD (respondent)FILE NUMBER(S): CA 40100/09 COUNSEL: C E ADAMSON SC/ K E BURKE (appellants)
S NORTON SC/ E E WELSH (respondent)SOLICITORS: Tresscox Lawyers (appellants)
Bryden’s Law Office (respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 215/07 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 6 March 2009; 13 February 2009; 13 February 2009 LOWER COURT MEDIUM NEUTRAL CITATION: MD v Sydney South West Area Health Service [2009] NSWDC 22; MD v Sydney South West Area Health Service (2) [2009] NSWDC 23; MD v Sydney South West Area Health Service (3) [2009] NSWDC 24;
CA 40100/09
DC 215/0716 SEPTEMBER 2009ALLSOP P
HODGSON JA
SACKVILLE AJA
1 ALLSOP P: I will ask Justice Hodgson to deliver the first judgment.
2 HODGSON JA: On 6 March 2009, Goldring DCJ gave his decision in proceedings in which the respondent had sued the first appellant (the Health Service) and the second appellant (Dr Fulcher) for damages for professional negligence, the professional negligence alleged being to the effect that Dr Fulcher failed to advise or require the respondent to have a pregnancy test before he carried out a repair of her prolapsed uterus and a tubal ligation, resulting in her having to have her fifth child by caesarean section and resulting in mental health problems.
3 The primary judge gave a verdict for the Health Service, and gave a verdict for the respondent against Dr Fulcher in the sum of $110,120. The primary judge also made an order that the names of the plaintiff, her family and any identifying information not be published.
4 On 19 March 2009, the primary judge ordered that Dr Fulcher pay the respondent’s costs on the party and party basis up to and including 20 June 2008 and thereafter on an indemnity basis, and ordered that the respondent pay the costs of the Health Service up to and including 15 September 2008, and that after that date there be no order as to the costs as between the respondent and the Health Service. The appellants appeal from those orders, and Dr Fulcher also appeals from interlocutory decisions of the primary judge made on 13 February 2009.
5 I will outline the circumstances giving rise to the proceedings.
6 The respondent was aged twenty-nine years at the time of the trial and had five children. Her evidence, accepted by the primary judge, was that her first four pregnancies had been unplanned. The respondent was diagnosed with a pulmonary embolus after the birth of her third child, and because of this she was advised not to take the contraceptive pill. After the birth of her fourth child she suffered from a prolapsed uterus. She consulted her GP and was referred to Dr Fulcher, a specialist in obstetrics and gynaecology.
7 The respondent first saw Dr Fulcher on 22 August 2003. She sought advice with respect to the prolapse and sterilisation, and she informed Dr Fulcher she did not wish to have any more children. Dr Fulcher agreed to perform a tubal ligation and repair of the prolapsed uterus at the same time. It was common ground between the parties that the respondent told Dr Fulcher that her periods were irregular and that she had not had a period since giving birth to her fourth child in May 2003. (I interpolate here that this was accepted as not unusual in someone who was regularly breastfeeding.) There was considerable factual contest as to what was otherwise said between them on this occasion.
8 The primary judge made the following findings, which are not challenged on appeal.
First, that Dr Fulcher did not say anything to the respondent about the importance of not being pregnant at the time she had surgery.
Second, that Dr Fulcher did not say anything to the respondent about the need for her to have a pregnancy test before surgery and gave no direction that she should do so, and did not give her any brochures relevant to the procedure.
Third, that Dr Fulcher asked the respondent a question to the effect of whether she was sexually active, to which the respondent answered to the effect “not really” and also said that since the prolapsed uterus became apparent, sexual intercourse was “too painful” for her.
Fifth, that Dr Fulcher did not on any other occasion question the respondent as to whether she was having sexual intercourse, say anything to her about the importance of not being pregnant at the time she had surgery, or raise with her the question of her having a pregnancy test, and also did not give any indication to the respondent’s GP that pregnancy testing was required.Fourth, however, that the respondent did not understand Dr Fulcher to be asking whether she was having any sexual intercourse at all and did not in terms tell him she was not, and that the respondent told Dr Fulcher that her normal method of contraception was use of condoms.
9 The surgery was initially organised for December 2003 but did not take place then because of an emergency operation that took priority, and it was postponed until 2 February 2004. There was some conversation between the respondent and Dr Fulcher in December, but not about a pregnancy test or about the respondent’s sexual activity.
10 On 2 February 2004, the procedure of uterine prolapse repair and tubal ligation was carried out. Dr Fulcher gave evidence about discussion on that occasion concerning a pregnancy test but the primary judge, as I have said before, held there was no such discussion; and of course it follows from the findings of the primary judge that Dr Fulcher had made no enquiry after 22 August 2003 as to whether the respondent was having sexual intercourse.
11 The respondent suffered pain and discomfort after discharge, and in May 2004 it was ascertained that she was pregnant and had been pregnant at the time of surgery, having conceived the child in December or early January. In May 2004 it was too late for the respondent to have a termination. The respondent’s fifth child was delivered by caesarean section, leaving her with a considerable scar, and the respondent suffered psychological sequelae from having the further child, which was not wanted, and from fear that the child would be affected by the procedure and analgesics taken during the procedure.
12 The respondent’s statement of claim alleged a duty of care and breach. Dr Fulcher’s defence admitted the duty of care and denied breach. It made no reference to s 5O of the Civil Liability Act 2002, which provides as follows:
5O Standard of care for professionals
(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
The defence also did not allege the facts referred to in s 5O(1).
13 The respondent’s solicitors were served with reports prepared for Dr Fulcher and given by Dr Reid and Dr Boshell, many months before the hearing. Dr Reid’s report stated and answered in the affirmative the question “Did Dr Fulcher act in a manner that would be widely accepted by peer professional opinion as competent professional practice?” That is, a question using words precisely reflecting words used in s 5O(1).
14 The hearing commenced on 9 February 2009. On 11 February 2009, after the close of the respondent’s case and after cross-examination of Dr Fulcher, counsel for the respondent advised the court that he had cancelled arrangements for Dr Reid and Dr Boshell to attend for cross examination. The reports of these doctors were then tendered and objected to by the respondent’s counsel on the basis that they did not prove the truth of what the doctors had been told, and on the basis that because s 5O was not pleaded in the defence, peer professional practice was not an issue in the case. These reports were admitted subject to the second of those objections.
15 On 13 February 2009, the primary judge delivered an interlocutory judgment in which he held that s 5O had to be pleaded if a defendant wished to rely on it. He refused to allow an amendment to the defence to raise s 5O, and he ruled that the reports of Dr Reid and Dr Boshell, insofar as they touched on matters under s 5O, were irrelevant and inadmissible.
16 In his final judgment, after dealing with the facts, the primary judge gave the following reasons for finding against Dr Fulcher (Judgment paras [62]-[71]).
- 62 The only evidence of the nature of the duty of care owed by a gynaecologist to a patient in these circumstances is the evidence contained in Dr Barrowclough's report. It is in the following form:
" 1. Should a pregnancy test be carried out prior to a tubal ligation?
Additionally, I believe that if at operation the uterus is found to be larger than the normal non-pregnant size, the procedure should be discontinued until the reason for the enlargement has been diagnosed. This naturally includes confirming or excluding a pregnancy.”Yes. It is reasonable to confirm the absence of a pregnancy prior to tubal sterilisation.
63 In the course of proceedings I excluded certain evidence that the defendants sought to tender. The defendants indicated in the course of the hearing that they wished to rely on the defence provided by the Civil Liability Act 2002, s 5O. Objection was taken to the admission of some evidence tendered by the defendants, which went to this defence, on the basis that the Rules require that the defence under s 5O must be specifically pleaded and particularised before that defence can be raised as an issue in the proceedings. I accepted that submission and gave my reasons at the time. The effect of my ruling is that the defendants cannot rely on the defence. Dr Barrowclough's evidence is therefore the only evidence before me relating to the duty of care.
64 How does this meet the test set out in s 5B? Considering s 5B(1), the risk against which it is alleged Dr Fulcher should have taken precautions was the risk that, at the time of the surgical procedure, Ms D was pregnant. Was the risk of pregnancy foreseeable? Was it not insignificant?
65 The answers to these questions depend on the time at which the questions are asked. In August 2003, when Ms D consulted Dr Fulcher for the first time, she was suffering from the consequences of a prolapsed uterus, and at that time it was painful for her to have sexual intercourse. She said that it was too painful for her to have sexual intercourse at the time. Indeed, the only time at which she says that she had had sexual intercourse was one occasion after the scheduled date of the surgery in early December. As at 22 August 2003, it would not have been unreasonable for Dr Fulcher to assume that the situation described by Ms D would continue for weeks, but not indefinitely. However, I have found that there was a conversation in August 2003 about contraception and that Ms D mentioned the use of condoms.
66 In December 2003, and again in February 2004, on the two occasions when Ms D came to Liverpool Hospital for the procedure, I have found that she was not asked about whether or not she was pregnant or had been tested for pregnancy. Because of the lapse of time after her discussion with Dr Fulcher, the question should have been asked on or before each of these occasions. When the surgical procedure was performed in February, six months had elapsed since the August consultation with Dr Fulcher. There is no evidence about whether the prolapse continued to trouble her until that time. However, after four or six months, was it reasonable for Dr Fulcher to assume that she would have continued not to have sexual intercourse? I find that it was not. I do not need any expert evidence to make this finding. It is a matter of common sense.
67 The risk of pregnancy was clearly present where the woman concerned was not taking a contraceptive pill or fitted with an intrauterine device and had sexual intercourse. Condoms may be more or less effective as contraceptives, but it is notorious that they are less effective as contraception than pills or intrauterine devices. Dr Fulcher said that his usual practice was to advise patients to have a pregnancy test, but I have found as a fact in this case that he did not follow that usual practice in the case of Ms D.
68 Considering s 5B(2), in this case, if surgery of the type, which Ms D underwent, is carried out, there is a risk both to her and to the foetus. Dr Fulcher admitted this in his evidence, so there is no need to look for other evidence. Because of the intrusive nature of the surgical procedure, narcotic analgesics are used as a matter of course, and radiological procedures involving the use of X-rays are also highly probable. The possible harm to the foetus and to the mother is serious. The impact of invasive surgery on the uterus and adjoining area constitutes a trauma.
69 The birth of healthy children clearly has great social utility. There is not a great burden on an obstetrician and gynaecologist to order a blood serum pregnancy test or to ask the referring general practitioner to arrange this.
71 It follows that the failure of Dr Fulcher to take proper steps to ensure that Ms D had a pregnancy test before he performed the repair of the prolapsed uterus and the tubal ligation on 2 February 2004 constitutes a breach of the duty of care that he had to her.70 In the circumstances I find that the risk was not insignificant, and that a reasonable person in the doctor's position would not only have advised the patient to have a pregnancy test within a day or two before the surgical procedure, but would either have referred the patient to a pathologist for the test or have advised the referring general practitioner to ensure that a test was carried out. This is consistent with Dr Barrowclough's opinion. Where, in circumstances that a patient had indicated that she was not using a contraceptive pill or an IUD, as was the case here, no matter what she might have said four months previously about lack of sexual activity, a reasonable medical practitioner would have reminded her that she should not be pregnant at the time of the procedure, and accordingly should have a pregnancy test before the scheduled date. Further, when the surgery was postponed in December, such a reasonable medical practitioner should have reminded the patient of both the desirability of avoiding pregnancy and the need to have a test before the date of the rescheduled procedure.
17 The appellants rely on the following grounds of appeal:
The second appellant appeals on the following grounds:
Section 5O of the Civil Liability Act
1. The Court below erred in determining that section 5O of the Civil Liability Act was required to be pleaded.
2. The discretion exercised by the Court below miscarried when it refused the second appellant leave to amend his defence to allege section 5O of the Civil Liability Act .
3. By reason of the miscarriage of the discretion exercised by the Court below in refusing leave to the second appellant to amend, the Court below was in error in rejecting the reports of Drs Boshell and Reid to the extent to which they related to section 5O of the Civil Liability Act .
4. The Court below erred in identifying the report of Dr Barrowclough as the only evidence germane to the duty of care, in circumstances where it had admitted the reports of Drs Boshell and Reid, albeit on a limited basis that excluded matters relating to section 5O of the Civil Liability Act .
Failure to establish breach
5. The Court below erred in finding that the respondent had established a breach of duty by the appellant when the evidence did not establish negligence.
The first appellant appeals on the following ground:
Costs of the first appellant
6. The discretion of the Court below as to costs miscarried in so far as it ordered that the respondent pay the first appellant's costs of the proceedings up until the date of joint representation with the second appellant, namely 15 September 2008.
The first and second appellants appeal on the following ground:
Non-publication order
8. The Court below erred in failing to give reasons for making a non-publication order.7. The Court below erred in making a non-publication order in respect of the respondent's identity in circumstances where such an order was not sought and no opportunity was given to the parties to address whether such an order ought be made.
18 I will consider in turn the following issues.
- First, the requirement to plead s 5O (ground 1).
Second, the refusal of leave to amend (grounds 2 and 3).
Third, the disregard of the evidence of Dr Reid and Dr Boshell (ground 4).
Fourth, the finding of breach (ground 5).
Fifth, the costs of the Health Service (ground 6).
Sixth, the non-publication order (grounds 7 and 8).
19 In relation to the requirement to plead s 5O, I note that UCPR 14.14 provides as follows:
14.14 General rule as to matters to be pleaded specifically
(cf SCR Part 15, rule 13; DCR Part 9, rule 9)
(2) In a defence or subsequent pleading, a party must plead specifically any matter:(1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.
(a) that, if not pleaded specifically, may take the opposite party by surprise, or
(c) that raises matters of fact not arising out of the preceding pleading.(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
(3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.
20 Ms Adamson SC for Dr Fulcher submitted that s 5O merely relates to evidence relevant to proof of breach of duty of care, and that it is not a defence which would make the claim “not maintainable” within r 14.14; and that the analogy of s 51A of the Trade Practices Act 1974 (Cth) was applicable, referring to Cummings v Lewis (1993) 41 FCR 559 at 567.
21 In my opinion, it is clear that s 5O modifies the common law and provides a defence not available at common law, with an onus of proof lying on a defendant: see Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 at [54]-[61].
22 Although it might be said that it does not so clearly introduce new issues as does s 42 of the Civil Liability Act, in my opinion the decision of the Court of Appeal concerning s 42 in Port Stephens Council v Theodorakakis [2006] NSWCA 70 at [15] is applicable, and supports the view that s 5O should be pleaded.
23 In my opinion, s 5O does contemplate proof of material facts which, if established, would negative a finding of negligence which otherwise might be available; so in my opinion the material facts contemplated by s 5O should be pleaded in a defence, even if specific reference to s 5O is not mandatory. However I would say that specific reference to s 5O would be desirable.
24 Although it is not necessary and perhaps not desirable for me to express a final view on this, I should add that my tentative view would be that the same applies to s 51A of the Trade Practices Act, as suggested by French J in Western Australia v Bond Corporation Holdings Limited (1990) 99 ALR 125; [1991] ATPR 41-081. But for s 51A, the making of a representation with respect to any future matter without reasonable grounds would not, by reason only of those facts, necessarily be misleading or deceptive. So in my opinion, it would not be correct to say that all s 51A does is to facilitate proof.
25 For those reasons, in my opinion, the primary judge was not in error to hold that for matters specified in s 5O of the Civil Liability Act to be relied on, that section, or at least the material facts contemplated by that section, should be pleaded.
26 Turning to the question of refusal of leave to amend, in refusing leave the primary judge noted submissions by senior counsel for the respondent (who did not appear on the appeal) that the opinion of the respondent’s expert, Dr Barrowclough, did not address the s 5O issues, that if the defence had been pleaded the respondent would have taken a different cause of action, and that forensic decisions had been made not to require Dr Reid and Dr Boshell for cross-examination because of the view taken that their reports were irrelevant; and essentially on that basis, the primary judge refused leave to amend.
27 It was submitted by Ms Adamson for Dr Fulcher that the primary judge erred in that he failed to consider, weigh up and take into account the following matters.
(i) The statutory requirement under s 64 of the CPA that requires all necessary amendments to be made for the purpose of determining the real issues raised by the proceedings;
(ii) The statutory obligation imposed by s 58 of the CPA that a court must seek to act in accordance with the dictates of justice when deciding whether to allow an amendment to a document.
(iii) The refusal of leave would be inconsistent with what the High Court said in State of Queensland v JL Holdings that it is only in extreme circumstances that a party should be shut out from litigating a real issue.
(iv) The circumstances that Parliament has, by s 5O, modified the common law in so far as it applies to the standard of care for professionals in professional negligence actions and that refusal of leave to amend creates the anomaly that this provision, if it is required to be pleaded and it is not, is rendered inapplicable, although other provisions in Part 1A (such as s 5B, s 5C and s 5E) necessarily apply in the proceedings;
(v) The circumstance that the matters provided for in s 5O were germane to the question whether the second appellant had been negligent, and were necessarily raised by the joinder of issue apparent from the existing pleadings;
(vi) What was said by this Court in Dobler , specifically at [60], where reference is made by Giles JA to the manner in which a plaintiff calls evidence with respect to s 5O of the CLA;
(vii) The application was being made late in the trial by reason of an objection being taken to the tender of the expert reports on the grounds that s. 5O of the CLA had not been pleaded, in circumstances where the respondent's counsel had for a substantial period of time been of the view that the reports were inadmissible because they did not go to an issue in the pleadings;
(viii) There was no procedural unfairness to the respondent with respect to the second appellant's reliance upon s. 5O of the CLA, as the reports of Dr Reid and Dr Boshell had been served well in advance of the trial.
(ix) The application was made whilst the appellants were still in their case and respondent had every opportunity to rebut the peer professional opinion expressed by Dr Reid, either through cross-examination or alternatively by requiring her expert, Dr Barrowclough, to provide a supplementary report or seek leave to adduce oral evidence from him, but the respondent failed to avail herself of that opportunity.
(x) Absence of surprise was conceded by the respondent's counsel;
(xi) The prejudice that would be suffered by the second appellant if leave were not granted: principally that the standard of care by which he would be judged would be higher than that which Parliament had mandated in s 5O;
(xiii) That it would cause manifest injustice to the second appellant to punish him for the circumstance that his legal advisers had not pleaded s 5O when there was no rule of practice that it be pleaded and no authority which established that it ought be pleaded.(xii) That any prejudice suffered by the respondent was able to be cured by a costs order;
28 I note first that the approach to amendment taken in State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146 (referred to in those submissions) has been disapproved by the High Court in Aon Risk Services Australia Limited v Australia National University [2009] HCA 27, particularly at [111] and [133].
29 In my opinion the crucial objection to the primary judge’s decision on this matter is that he did not have regard to the circumstance that many months before the hearing, the respondent’s solicitors had been served with Dr Reid’s report that explicitly addressed a question couched in the precise words used in s 5O, and that, as frankly stated by senior counsel for the respondent at Black 227:
- We’ve had these reports for a substantial period of time and I’ve taken the view that they were inadmissible as to the state of the pleadings for a very substantial period of time.
30 This was in my opinion quite a clear indication that the legal advisors of the respondent proposed to take the point about the non pleading of s 5O in order to object to the admissibility of doctors’ reports, and did not convey this to the appellant’s legal advisors until the point was taken very near to the end of the case. As has been made clear in a number of cases, litigation by ambush is not acceptable: see White v Overland [2001] FCA 1333 at [4]; Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; 53 NSWLR 116 at [21], [32]; Baulderstone Hornibrook Engineering Limited v Gordian Runoff Limited [2008] NSWCA 243 at [160]-[164].
31 The failure of the primary judge to take this consideration into account is sufficient in my opinion to show error in terms of House v The King [1936] HCA 40; (1936) 55 CLR 499. In my opinion, a correct exercise of discretion, having regard to this consideration and the other matters relied on by Ms Adamson, would have been to allow the amendment.
32 Turning next to the disregard of evidence of Dr Reid and Dr Boshell, in para [63] of his judgment the primary judge held that the effect of his ruling on s 5O was that Dr Fulcher could not rely on the s 5O defence, and that “therefore” Dr Barrowclough’s evidence was the only evidence before him relating to the duty of care. In my opinion that was plainly an error. Quite apart from s 5O, evidence as to professional practice is admissible on the question whether there is a breach of a duty of care at general law, although not determinative: see Dobler at [58]; Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 487-489. However, this error by the primary judge, and his error in relation to failing to allow the amendment to plead s 5O, does not necessarily mean that the appeal should be allowed. UCPR 51.53(1) provides as follows:
51.53 Circumstances in which Court may order new trial
(1) The Court must not order a new trial on any of the following grounds:(cf SCR Part 51, rule 23)
(a) misdirection, non-direction or other error of law,
(b) improper admission or rejection of evidence,
(c) that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury,
unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.(d) on any other ground,
(2) ……
33 When a party has not had a trial on issues that should have been available to that party and where evidence has been excluded on an erroneous basis, there is generally a substantial miscarriage of justice if these errors were capable of affecting the result: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Mastronardi v New South Wales [2007] NSWCA 54 at [83]-[87]. In Amalgamated Television Services v Marsden [2002] NSWCA 419 at [96], the Court of Appeal expressed approval of a test stated in Freeman v GJ Coles & Co Limited [1967] 1 NSWR 297, namely whether the error “really bore on the ultimate result.” See also Tory v Megna [2007] NSWCA 13 at [30]-[35].
34 Accordingly, it is necessary to consider what effect the pleading of s 5O, and the admission of the reports of Dr Reid and Dr Boshell unaffected by any consideration related to failure to plead s 5O, could have been. The most relevant parts of Dr Reid’s report were as follows (Blue 161-165):
- I have further considered the description of background circumstances enclosed as "Schedule A" in response to the following questions. It would also be appropriate to consider my response to "Issue 2" initially and then to "Issue 1":
- 1. (Response to Issue 2) Is pregnancy testing prior to sterilization mandatory or the standard practice?
Pregnancy testing prior to sterilization is certainly not mandatory, nor is it standard practice. There are a number of steps that can be taken to avoid the risk of a patient being pregnant at the time of a sterilization procedure (interval pregnancy). These depend upon whether the woman is cycling normally, or has irregular cycles, or is amenorrhoeic.
a. If a woman is cycling normally then most practitioners would plan the sterilization procedure in the first half of the cycle, before there is an opportunity for pregnancy to occur.
b. If the woman is on regular and reliable contraception, most practitioners would accept doing a sterilization procedure at any time of the cycle. Here lies a degree of trust between the practitioner and the patient that her sexual and contraceptive history is truthful.
c. If sterilization is undertaken in the second half of the cycle (luteal phase), or if there is any concern about contraceptive compliance, then a serum hCG (blood pregnancy test) within 24-48 hours of the procedure would seem advisable. There is no consensus of opinion about this and an early luteal phase hCG may still be negative in spite of an early established pregnancy.
e. Most practitioners would recommend a hCG prior to surgery, but again most would be guided by the patient's sexual and contraceptive history. Again there lies a degree of trust between the practitioner and the patient that her sexual and contraceptive history is truthful.d. If a woman has irregular cycles or is amenorrhoeic, then the issue of avoiding an interval pregnancy is more difficult.
- 2. (Response to Issue 1) In proceeding with the procedure in the absence of a negative pregnancy test, did Dr Fulcher act in a manner that would be widely accepted by peer professional opinion as competent professional practice?
[MD] was amenorrhoeic at the time of her surgery, and the most likely reason for this was that she was 9 months post-partum and continuing to breast feed.
Dr Fulcher had asked [MD] to have a pregnancy test before her surgery, and she declined to comply with this request.
Further to this [MD] told Dr Fulcher that she was not sexually active, which would make pregnancy as a cause for her amenorrhoea impossible.
When [MD] was admitted to Liverpool Hospital for her surgery on 2 Feb 04, she had already been cancelled on a previous occasion. It was impossible to obtain an urgent hCG before the end of Dr Fulcher's allocated operating time.
……Given the above facts, I believe it was reasonable for Dr Fulcher to proceed with the surgery, and I believe his action would be widely accepted by peer professional opinion.
- 4. To the extent that these issues have not been addressed above, please let us have your comments on the allegations of negligence against Dr Fulcher.
c. Failing to ensure that a pregnancy test was conducted prior to the operative procedure of 2 February 2004.a. ……
b. ……
There is evidence that Dr Fulcher made a request for [MD] to have a pregnancy test immediately prior to her surgery on 2 Feb 04 and that she failed to comply with this request. He had asked her to arrange this with her General Practitioner, once an admission date for surgery had been confirmed. He spoke with her immediately before her surgery (in the anaesthetic bay) and decided to proceed with her surgery given that it was logistically impossible to obtain an urgent pregnancy test through the Public Hospital system before the expiry of his allocated operating time, and that [MD] had stated she was not sexually active.
……It was [MD] who failed to ensure that a pregnancy test was conducted prior to her surgery, as recommended by Dr Fulcher.
- g. Failing to advise the Plaintiff that she may be pregnant and that therefore the operative procedure of 2 February 2004 should not occur.
Dr Fulcher made appropriate recommendations to [MD] to exclude pregnancy before her planned surgery. [MD] failed to comply with these recommendations. When admitted, and in the absence of the recommended pregnancy test, he proceeded with the planned surgery on the basis that [MD] was not sexually active.
Upon introducing the laparoscope, it was observed that the uterus was "bulky" (enlarged). One of a number of causes for this would be pregnancy. It would have been very difficult to then advise the Plaintiff that she may have been pregnant, and gain consent to not proceed with the planned procedure - as she was anaesthetised at the time.
……
There are four further comments that I wish to make:
……a. There is no doubt that the major contributing factors leading to this interval pregnancy were [MD]'s failure to comply with a request to have a pregnancy test immediately prior to her surgery, and her statement that she was not sexually active, when she clearly was.
35 The most relevant parts of Dr Boshell’s report were firstly, a statement at Blue 227: “Pregnancy tests are not usual practice and are not a precondition of surgery taking place. This is confirmed in the College Statement on Filshie Clip Sterilisation.” Parts of that Statement which were annexed to the report also had some relevance.
36 The second relevant part of the report is that appearing under the heading, “Conclusion”, at Blue 228:
A normal pregnancy cannot occur without sexual intercourse and conception. Dr Fulcher took a gynaecological history and discussed contraception with the plaintiff. The plaintiff reported that her periods were irregular. The plaintiff was breast-feeding her infant at that time and the presence of irregular periods is consistent with breast-feeding. Dr Fulcher recorded in his notes that the plaintiff was not sexually active. The reason that the plaintiff gave for this was the presence of the prolapse, and that sexual intercourse was painful in the presence of the prolapse. In my experience this is frequently the case. Further, Dr Fulcher did advise the plaintiff to have a pregnancy test prior to the planned surgery. Dr Fulcher acted in accordance with the R.A.N.Z.C.O.G. College Statement" regarding Filshie clip sterilization.
It is vital that a patient gives the treating doctor as much accurate information as possible. NSW Health in its publication "10 Tips for Safer Health Care" advises that patients "collect as much reliable information as you can" when being treated. The plaintiff, by reporting to Dr Fulcher that she was not sexually active, misled Dr Fulcher. It appears that this occurred on 2 occasions: initially when she saw Dr Fulcher in his rooms, and subsequently on admission to Liverpool Hospital. As the plaintiff denied any risk of pregnancy prior to the operation, I believe that Dr Fulcher acted in a reasonable and professional manner.Pregnancy testing prior to a sterilisation is not standard practice in Australia.
37 Ms Adamson took the court to the report of Dr Barrowclough, and submitted that his evidence only went so far as to support the proposition that it was reasonable to carry out a pregnancy test prior to a tubal ligation; but she went on to submit that if his “yes” to the question “should a pregnancy test be carried out prior to a tubal ligation”, was given wider effect, then the evidence of Dr Reid that pregnancy testing prior to sterilisation was not mandatory or standard practice, and the evidence of Dr Boshell that pregnancy tests were not usual practice and were not a precondition of surgery taking place, counted strongly against this evidence of Dr Barrowclough.
38 There is force in that submission, but in my opinion, the reports of Dr Reid and Dr Boshell must be read as a whole. Dr Reid’s opinion, that pregnancy testing was not mandatory or standard practice, was based on an opinion that there “are a number of steps that can be taken to avoid the risk of a patient being pregnant at the time of a sterilisation procedure”. That is, it was based on an assumption that there is a risk and that steps should be taken to avoid it.
39 Dr Reid’s report goes on to detail these steps in paragraphs (a) to (e) of the part of the report quoted earlier; and it is clear from paragraphs (c), (d) and (e) that in the circumstances that existed on the primary judge’s findings, concerning the case of the respondent, a pregnancy test was advisable in the case of the respondent.
40 Similarly in the case of Dr Boshell, his opinion that pregnancy tests were not usual practice was combined with his reference to the College Statement, and that College Statement refers to failure to “Time the procedure so that the patient is not pregnant”, and to the good practice point of performing “The procedure in the early to mid follicular phase of the cycle unless other certain contraception is being used”.
41 Perhaps even more tellingly, the general thrust of both reports is that the risk of a patient being pregnant at the time of a tubal ligation procedure should be avoided, and that Dr Fulcher was not negligent just because he had asked the respondent to have a pregnancy test prior to surgery on 4 February, he had asked her to arrange this with her GP once the date for surgery was confirmed, and the respondent had stated she was not sexually active. That is, all the conclusions were based on assumptions that were contrary to the findings of the primary judge, and on those findings the reports in their totality supported the respondent’s case.
42 For those reasons, in my opinion, the inclusion of the s 5O issue and full consideration of these reports could not have impacted on the reasoning of the primary judge at paras [64] to [71] of his judgment, and could not have affected the result. For those reasons, in my opinion the appeal on liability should be dismissed.
43 Turning to the question of costs, the only reason given by the primary judge for not ordering costs in favour of the Health Service after joint representation commenced was “that the case presented for both defendants was identical and it could be said that the first defendant did not incur any additional costs after that date”.
44 The primary judge had no evidence that the Health Service did not incur any costs after the date on which the appellants came to be jointly represented. Whether they did or did not would depend on whatever agreements were made between the parties and with the solicitor. I do not think it is necessary for a successful party to prove what such an agreement was in order that the usual result as to costs follow. As put by Ms Adamson, the effect of the primary judge’s order was to penalise the Health Service for adopting a prudent course to minimise costs.
45 There may be circumstances where it is appropriate to take a broad brush approach, particularly where co-defendants are closely associated parties; but in this case, in my opinion, there was no sufficient justification for departing from the usual order. It may turn out that by reason of an agreement between the parties and/or with the solicitor, the costs incurred by the Health Service since the appellants were jointly represented are minimal, but that is a matter that would be appropriately determined on assessment. For that reason, I would uphold the Health Service’s appeal on the question of costs.
46 Turning finally to the non publication order, that order was made without the matter being applied for by either party and without the matter being raised by the primary judge with the parties. In my opinion, an order of that nature should not be made without at least the matter being ventilated with the parties.
47 However, the matter has now been raised and discussed, and in my opinion there are valid reasons for making an order in this case with the object of ensuring that the child in question does not later happen upon the circumstances discussed in this case. I do, however, think that the order made by the primary judge was expressed too widely, and I would express a non-publication order more narrowly than was done by the primary judge.
48 For those reasons, I would propose the following orders:
- 1. Appeal on liability dismissed.
2. Appeal on costs allowed, order 2 made on 19 March 2009 set aside, and in lieu thereof order that the plaintiff pay the costs of the first defendant of the proceedings.
3. Appeal as to non-publication order allowed, the non-publication order set aside, and in lieu thereof order that the anonymisation of the name of the plaintiff in the published judgments to be maintained, order that there be no publication in the media of the names of the plaintiff, her children or their father, and direct that there be a note placed on the file plainly recording that this order has been made.
49 It will be necessary to hear submissions as to the costs of the appeal.
50 ALLSOP P: I agree with the orders proposed and with Hodgson JA’s reasons. I would only add the following by way of comment.
51 First, the Civil Liability Act 2002 (NSW), s 5O does need to be pleaded. It is not just a matter of evidence. It transfers, to a degree, the onus of proof. It transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal. It also may raise, in other cases, although it did not here, issues as to schools of medical practice, the geographical or other areas in which those schools might obtain and other matters requiring specificity and particularisation. In my view, for the reasons Hodgson JA has given and for the reasons in Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151 as well, it is a matter that needs to be pleaded. There is also the question of the surprise rule and precise terms of the relevant rule, UniformCivil Procedure Rules 2005 (NSW) r 14.14.
52 Secondly, the evidence of Doctors Reid and Boshell in the light of the guide provided by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists was in fact largely supportive of the proposition that the pregnancy of a patient during a procedure of this kind was a risk both to the child and the mother. In the light of the findings of the primary judge as to what passed and did not pass between the second appellant and the respondent, that is between doctor and patient, the trial judge’s conclusions were in effect reinforced substantially and not contradicted by Doctors Reid and Boshell. For those additional reasons, in my view, the evidence would not have any realistic prospect of affecting the result.
53 Thirdly, the Court of Appeal has on a number of occasions since 2001 made clear that the ambush theory of litigation is dead in this State. The same thing has been said in the Federal Court: see in particular Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243; and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. As I said in White and Overland [2001] FCA 1333 at [4], which was approved in terms by the Court of Appeal in Nolan at [28] 128:
- “ by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. … [I]f, something has been said, where it is evident, or indeed suspected, that the other side is proceeding on a basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party, through his or her representative, ensure that the other side is not proceeding on a misconception or that the other side does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. … [N]o one’s interests are advance by litigation proceeding on assumptions which are seen or suspected to be false.”
54 As I also said in Baulderstone at [160]:
- “it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation including [in that case] hard fought commercial cases”.
55 Here, it would appear that a point was kept up plaintiff’s counsel’s sleeve seeking to obtain tactical advantage. For a time, it appeared to work. If, however, the evidence of Doctors Reid and Boshell that was rejected had been probative, this would, in all likelihood, have led to the appeal being allowed and the costly and distressing result for the plaintiff of a new trial that would have resulted. There are of course circumstances (principally fraud cross-examinations) where a degree of care in disclosure may be entirely appropriate and necessary, but this case was not such an exception. Counsel and solicitors should understand their duty to co-operate to bring the real issues forward and not approach litigation as a game.
56 Here the defendants wished to rely on s 5O and the doctors’ reports in question made that plain for many months. If a relevant objection was to be taken it should have been flagged to allow the proper amendment in time. The primary judge plainly, in my respectful view, should have allowed the amendment. The so-called prejudice here was, with respect, entirely self-generated as part of the taking of the tactical point, in particular stating that the witnesses did not need to be cross-examined so they could be released. This could have led to significant costs and significant distress.
57 For these above additional reasons, I agree with Hodgson JA and with the orders he proposes.
58 SACKVILLE AJA: I agree with the orders proposed by Hodgson JA and with his Honour’s reasons. I also agree with the additional remarks of Allsop P.
59 I wish to add some observations on one matter.
60 The second appellant, in support of his submission that he did not need to plead material facts establishing the defence provided for in s 5O of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”), referred to the jurisprudence surrounding s 51A of the Trade Practices Act 1974 (Cth) (“TP Act”). Section 51A(1) of the TP Act provides that where a corporation makes a representation with respect to any future matter and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. Section 51A(2) provides that, in relation to a proceeding concerning a representation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
61 The second appellant submitted that s 51A of the TP Act is regarded as an evidentiary or deeming provision and, as such, need not be pleaded. Ms Adamson SC, who appeared with Mr Burke for the appellants, cited the remarks of Sheppard and Neaves JJ in Cummings v Lewis (1993) 41 FCR 559, at 567-568, where their Honours expressed the view that a cause of action for misleading or deceptive conduct arises by reason of a breach of s 52 of the TP Act (providing that a corporation is not to engage in misleading or deceptive conduct) and that s 51A is merely “designed to facilitate proof”. Similar views were expressed by Heerey and Cooper JJ, respectively, in Bowler v Hilda (1998) 80 FCR 191, at 206, 215.
62 It is not necessary for the purpose of considering this submission, to determine whether, as Ms Adamson suggested, s 51A of the TP Act should be regarded as a provision analogous to s 5O of the Civil Procedure Act. It is enough to note that the opinions expressed in Cummings v Lewis and Bowler v Hilda do not represent a settled rule that a party relying on s 51A of the TP Act in order to make out a case of misleading or deceptive conduct in contravention of s 52 need not plead the material facts that attract the operation of s 51A.
63 In O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; 122 FCR 455, a Full Court of the Federal Court pointed out (at 461 [15]) that there had been some diversity of views expressed within the Court:
- “about whether, and the way in which a party seeking to derive the benefit of s 51A must inform the opposing parties that the section will be relied on”.
64 The Court in O’Neill v MBF referred to Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819, at [19], where Drummond J expressed the view that, notwithstanding Cummings v Lewis, a party intending to rely on s 51A of the TP Act must give a clear indication of its intention to its opponent. The Court in O’Neill v MBF then stated (at 462 [16]) that it was:
- “prepared to accept that [the respondent] was entitled to know, as a matter of procedural fairness, that s 51A was relied on either expressly or by clear implication. It is unnecessary to address the question of whether it needed to be pleaded in this case particularly having regard to the comparative informality created by the legislative scheme governing the Federal Magistrates Court …”
See also Insurance Australia Ltd v Motor Traders’ Association of New South Wales [2006] FCA 323, where Edmonds J discusses the authorities.
65 In my view, the jurisprudence concerning s 51A of the TP Act does not assist the second appellant’s contention that he did not need to plead material facts capable of establishing the defence provided for in s 5O of the Civil Liability Act.
66 As I have indicated, I agree with the orders proposed by Hodgson JA.
The orders of the court will be as proposed by Justice Hodgson in the delivery of his reasons together with the following costs orders.
1. The second appellant pay the respondent’s costs of his appeal on liability.
3. The respondent to have a certificate under the Suitors’ Fund Act if otherwise qualified in relation to the costs of the first appellant.2. The respondent pay the costs of the first appellant, the Health Service, on its appeal in relation to costs.
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