TABET, by her Tutor, SHEIBAN, v Mansour

[2005] NSWSC 908

CITATION:	TABET, by her Tutor, SHEIBAN, v. MANSOUR [2005] NSWSC 908 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Tuesday 5 July 2005
JUDGMENT DATE :	9 September 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(a) Pursuant to Rule 19.1 of the Uniform Civil Procedure Rules 2005, I grant leave to the plaintiff to amend the Statement of Claim; (b) I direct the plaintiff to file and serve within 21 days an amended statement of claim upon the solicitors for the first and second defendants; (c) The plaintiff's notice of motion filed on 4 March 2005 otherwise be stood over to a date to be fixed. I grant liberty to apply in this respect; (d) The further amended notice of motion filed in court on 5 July 2005 on behalf of the first and second defendants is stood over to a date to be fixed. Liberty to apply to re-list the motion on seven days notice; (e) Costs of the motion reserved. Liberty to apply on the question of costs of the plaintiff's notice of motion filed on 4 March 2005.

CATCHWORDS:	Plaintiff seeking to amend statement of claim - conference of medical experts - joint expert report - issues that had not been raised in the experts' joint report - experts not asked to express an opinon on the issue - plaintiff identified a liability issue in the proposed amended statement of claim - whether the joint expert report can or should operate as a restricting factor on the discretionary power to grant an amendment to pleadings - possible utility test
LEGISLATION CITED:	Supreme Court Rules 1970
CASES CITED:	Boardman v. South Eastern Sydney Area Health Service [2001] NSWSC 930 Booth v. Francesco [2002] NSWSC 154 Spasovic v. Sydney Adventist Hospital [2002] NSWSC 164 Hebelrih v. Szirt [2004] NSWSC 54 Queensland v. J.L. Holdings (1997) 189 CLR 146 Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705 Tringali Stewardson Stubbs & Collett Limited (1966) 66 SR(NSW) 335 John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706
PARTIES:	TABET, Reema (by her Tutor, SHEIBAN, Ghassan) v. MANSOUR, Dr. Albert & ANOR
FILE NUMBER(S):	SC No. 20239 of 2001
COUNSEL:	P: G.K. Burton, SC/ R.C. Pincus D: S.R. Donaldson, SC
SOLICITORS:	P: Miller Goddard D: Blake Dawson Waldron

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HALL, J

FRIDAY 9 SEPTEMBER 2005

No. 20239 of 2001

REEMA TABET (BY HER TUTOR, GHASSAN SHEIBAN) v. DR. ALBERT MANSOUR & ANOR

JUDGMENT

1 HIS HONOUR: The question in this application is whether it is open to the plaintiff to apply to amend her Statement of Claim in circumstances in which, following a conference of medical experts held pursuant to a consent order made under Part 36 Rule 13CA of the Supreme Court Rules 1970, a joint report of such experts has been provided which records answers that are inconsistent with the matters which the plaintiff now wishes to rely upon in a proposed amended statement of claim.

2 The application in this matter raises a question, which appears not to have fallen for determination in other cases. Its resolution will require an examination of some aspects of the medical history and of the proceedings to date.

Background

3 There are two notices of motion, one by the plaintiff and one by the first and second defendants.

4 On 1 March 2005, the solicitors for the plaintiffs sought the consent of the solicitors for the first and second defendants to an amendment in support of the Statement of Claim (Annexure “G” to Mr. Miller’s affidavit of 24 February 2005). On 3 March 2005, the solicitors for the first and second defendants stated that they did not consent to the proposed amendment and recorded their anticipation that a notice of motion would be served by 4 March 2005 in accordance with orders made by Justice Howie on 25 February 2005.

5 In the plaintiff’s notice of motion, filed on 4 March 2005, orders are sought in the following terms:-

1. Pursuant to Order 20.1 of the Supreme Court Rules, the plaintiff be granted leave to amend the statement of claim to that which is Annexure ‘G’ to the affidavit of John Russell Miller sworn 24 February 2005.
2. Leave to extend the time to serve the reports of Dr. Martin Berry dated 25 March 2003, 21 July 2003, 28 October 2003 to 21 February 2005 and to serve the reports of Dr. Geoffrey Klug dated 21 January 2004 to 13 February 2004 and dated 11 February 2005 to 21 February 2005.
3. Leave to rely upon the expert reports of Dr. Martin Berry dated 25 March 2003, 21 July 2003 and 28 October 2003 and Mr. Geoffrey Klug dated 21 January 2004 and 11 February 2005 and leave to adduce the evidence which these reports cover in substance, at trial.
4. That the application for Orders 2 and 3 of this motion be heard by the trial judge at the commencement of the trial.
5. Such further or other orders as this Honourable court deems fit.
6. Costs should motion be opposed.

6 Mr. G.K. Burton, SC., who appeared with Mr. R.C. Pinkus of counsel for the plaintiff argued the application only in terms of proposed order 1 and sought, in accordance with paragraph 4 of the notice of motion, that the application for orders 2 and 3 be heard by the trial judge at the commencement of the trial.

7 The first and second defendants relied upon a further amended notice of motion filed in Court on 5 July 2005 in which the following orders were sought:-

“1. In the event that the court grants leave to the plaintiff to file the amended Statement of Claim, a copy of which is attached as Annexure E to the affidavit of Anna Lee Walsh deposed 1 April 2003, the plaintiff’s action against the first and second defendants be struck out pursuant to Part 14C Rule 6(4) of the Supreme Court Rules (SCR) for failure to serve expert reports in accordance with Part 14C Rule 6(1) SCR.
2. In the alternative, that the proceedings be dismissed pursuant to Part 13 Rule 5 on the basis that no reasonable cause of action is disclosed.
3. That the plaintiff pay the first and second defendants’ costs up to and including 27 July 2003 on a party/party basis as agreed or assessed.
4. That the plaintiff pay the first and second defendants’ costs on an indemnity basis from 28 July 2003.
5. Such further or other orders as the court sees fit.”

8 The substantive proceedings were commenced by Statement of Claim filed on 30 March 2001. The pleading records that the plaintiff, who was born on 6 November 1984, and who was aged six years at the time that her parents sought medical attention for certain medical symptoms, was taken to Royal Alexandra Hospital for Children where she was first examined by Dr. Mansour, the first defendant, and later, the second defendant, Dr. Gett. It is unnecessary for the purposes of the present application to record in detail each of the events that occurred in the period 18 December 1990 (the date of commencement of symptoms) to 21 May 2001 (the date upon which radiotherapy commenced). I will seek to confine reference to the principal events as they pertain to the present application.

Medical history

9 The plaintiff’s complaints of headache and vomiting continued between 18 December 1990 and 28 December 1990 when she was referred to the Outpatients Department at the Royal Alexandra Hospital for Children. A history was obtained that her brother had developed varicella with a rash appearing on 16 December 1990. On 31 December 1990, the plaintiff developed a rash which appeared consistent with a diagnosis of chicken pox. She had been admitted on 28 December and was discharged on 31 December 1990.

10 The plaintiff was re-admitted to the hospital on 11 January 1991. The history indicated that she had continued to complain of a headache, intermittent abdominal pain and vomiting. On the day of her admission, attempts at lumbar puncture was attempted but they were unsuccessful. It was considered that the plaintiff was suffering from viral encephalitis.

11 On 13 January 1991, the plaintiff had a transient episode of unequal pupils and was described as irritable, drowsy and complaining of headache. At approximately 11.00 am on that day, a lumbar puncture was performed at the L3/4 level and was said to reveal low pressure and changes on microscopy consistent with encephalitis.

12 The plaintiff’s condition deteriorated on 14 January 1991. She suffered from a seizure. A CT scan was performed which revealed a posterior fossa tumour with evidence of obstructive encephalitis. An EEG was performed shortly after which revealed an abnormal recording consistent with severe elevation of intra-cranial pressure and/or varcilla encephalitis.

13 Following improvement on 15 January 1991, a posterior fossa craniotomy was undertaken on 16 January 1991 with excision of a mid-line tumour, said to be a subtotal excision and at operation mention was made that there was evidence of tumour spread over the surface of the cerebellum.

14 On 22 February 1991, the plaintiff commenced chemotherapy.

15 On 26 February 1991, the plaintiff had an MRI scan of her head and spine said to reveal quite extensive disease.

16 On 30 April 1991, a repeat MRI scan was said to show evidence of improvement.

17 On 21 May 2001 (some four months plus from the time of the posterior fossa surgery), radiotherapy commenced. High dose curative (neuaxis) radiotherapy is said to have continued through until 2 July 1991.

18 Following the above treatment, there was improvement in the plaintiff’s condition and a subsequent MRI scan on 21 August 1991 revealed a regression of her disorder. She had a further course of chemotherapy between 26 August 1991 and 16 March 1992. However, the plaintiff’s improvement was limited and medical reports indicate that she has been left with substantial impairments in the nature of motor disabilities as well as impairment of cognitive and learning abilities.

Allegations of breach of duty

19 In the Statement of Claim filed on 30 March 2001, the allegations of breach of duty made in respect of treatment administered by Dr. Mansour are set out in paragraph 27 of the pleading. The allegations, in essence, are:-

(a) That the first defendant wrongly attributed the plaintiff’s signs and symptoms to a pre-chicken pox condition when he knew or ought to have known that signs and symptoms had persisted from 18 December 1990, that is some 13 days before the chicken pox rash appeared.

(b) Failure to arrange a CT scan of the brain on specified dates in circumstances in which he knew or ought to have known that the symptoms were consistent with raised intracranial pressure, the cause of which could have been a brain tumour.

(c) Failure to diagnose the plaintiff’s brain tumour.

20 In respect of the second defendant, the allegations of breach of duty can be essentially summarised as follows:-

(a) That the second defendant wrongly attributed the plaintiff’s signs and symptoms to a pre-chicken pox condition when he knew or ought to have known that signs and symptoms had persisted from 18 December 1990, that is some 13 days before the chicken pox rash appeared.

(b) Failure to arrange a CT scan of the brain on specified dates in circumstances in which he knew or ought to have known that the symptoms were consistent with raised intracranial pressure, the cause of which could have been a brain tumour.

(c) Directing a lumbar puncture be performed in circumstances where there was a significant risk of “coning” due to raised intracranial pressure, the cause of which could have been a brain tumour.

(d) Failure to diagnose the plaintiff’s brain tumour in a timely fashion.

Discussion of the medical issues

21 Before examining the joint expert report and, in particular, questions posed and answered by the experts, it is necessary to set out in summary form the nature of the medical issues which were subjacent to the broad allegations made in the Statement of Claim.

22 Central to the plaintiff’s case on the existing Statement of Claim are allegations concerning:-

(a) a failure by the defendants to diagnose the plaintiff’s tumour in a timely manner in light of the history of signs and symptoms over the relevant period;

(b) the performance by the second defendant of a lumbar puncture on 13 January 1991 which it is contended should have been preceded by a CT scan;

(c) a CT scan, it is alleged, if performed would have revealed the presence of the tumour;

(d) the lumbar puncture allegedly performed negligently and which it claimed led to the plaintiff suffering a tentorial herniation as a result of what is termed “coning” .

The proposed amendments to the statement of claim

23 The application for leave to amend the Statement of Claim seeks to make some minor amendments to paragraphs 5, 8, 9, 10, 11, 15 and 16 of the Statement of Claim. It is unnecessary for the purposes of this application to refer to them for, as I understand it, the defendants have no objection to those minor amendments being made. Minor amendments are sought in respect of particulars concerning Dr. Mansour, paragraph (a), an allegation of breach of duty by Dr. Gett and an amendment to particulars as to damages in paragraph 36.

24 The proposed amendments that are central to the dispute in this application are set out in the proposed Amended Statement of Claim in paragraphs 26 to 34 inclusive. I reproduce those paragraphs below:-

26. On 14 January 1991, Reema underwent surgery to insert an external ventricular drain to relieve hydrocephalus.
27. On 16 January 1991, Reema underwent a subtotal resection of the brain tumour.
28. Cerebrospinal fluid obtained from the lumbar puncture on 13 January and at the operation on 16 January was not sent for cytological analysis which, if done, would have indicated the presence of absence of tumour cells in the CSF.
29. Cerebrospinal fluid analysis performed on CSF taken on 7 and 13 February 1991 demonstrated the presence of tumour cells. Magnetic resonance imaging performed on 22 February demonstrated marked meningeal disease with metastases in the spine.
30. Between 22 February 1992 and 30 April 1993, Reema received high dose chemotherapy.
31. Between 21 May and 2 July 1991, Reema received high dose curative radiation therapy under general anaesthesia to the brain and spine.
32. Between 26 August 1991 and 16 March 1992, Reema underwent further high dose chemotherapy
Causation
33. If Reema’s medulloblastoma had been diagnosed prior to her discharge from hospital on 31 December 1990 while she was under the care of Dr. Mansour, or during her admission to hospital but before the lumbar puncture on 13 January 1991, whilst she was under the care of Dr. Gett, the medulloblastoma would not have spread to the point it did as demonstrated on the MRI performed on 22 February 1991.
34. Had the medulloblastoma been diagnosed in late December or early January as described above, Reema’s treatment would have been different.
Particulars
(a) Chemotherapy would have been avoided; and
(b) Radiotherapy would have been administered following the debulking of the tumour and delivered at a total dose of 36 Gray in 28 fractions without anaesthetic rather than in 50.4 Gray in 28 fractions under general anaesthetic.

The medical issue(s) posed by the proposed amendments: The “new contention”

25 Senior counsel for the plaintiff outlined the way in which, if leave were granted to amend the Statement of Claim, it is proposed to establish liability under the amendment in the paragraphs reproduced in [24]. Mr. Burton, SC. referred to the proposed claim when the matter was before Howie, J. on 25 February 2005 as “the radiotherapy claim”. I will, instead and for convenience, refer in this judgment to the case based on the proposed amendment (which I will endeavour to describe with greater particularity below) as “the new contention”. The essential elements of the alleged liability on this basis may be identified as follows:-

• The plaintiff’s disabilities or significant morbidity arose from the required radiotherapy of the type undertaken some four months or so following the surgical resection of the tumour.

• The timing of the radiotherapy and the dosage employed were significantly different (and liable to cause such disabilities/morbidity) than would have been necessary had an early diagnosis of the tumour been made.

• The treatment regime (including, in particular, the radiotherapy) would have been different if there had not been the extensive dissemination of the disease into the meningeal area – a phenomenon known as “seeding” .

26 Central to the proposition sought to be pursued by the plaintiff is the contention that “seeding” had not taken place as at late December 1990 or early January 1991. In the event that the amendment sought were granted, there is likely to be a dispute on this and related matters.

27 The application for leave to amend the Statement of Claim is supported by a number of affidavits including that of Anna Lee Walsh, solicitor, sworn 1 April 2003. Ms. Walsh’s affidavit contains a number of observations which may be summarised in propositional form as follows:-

(a) The essential allegations of negligence were:-

• a failure to diagnose the tumour in a timely manner; and

• the performance of a lumbar puncture on 13 January 1991 which led to “coning” causing significant brain damage;

• not all disabilities are pleaded as flowing from the alleged negligence, but only those which could have been caused by a delay in diagnosis, the consequent period of increased intracranial pressure, the lumbar puncture and the coning arising from it.

(b) The focus of the joint conference of experts which took place on 8 November 2002 was on causation, namely, whether the above factors caused or contributed to specific disabilities.

(c) Subsequent to the experts’ joint report, Ms. Walsh pursued further investigations on an issue that had not been previously raised: the relationship between radiation therapy and Reema’s disabilities .

(d) Whilst various experts commented generally on the effects of radiotherapy as administered to the plaintiff, no expert had provided a report specifically addressing the issue of whether there was any relationship between the delay in diagnosing and treating the plaintiff’s medulloblastoma and the manner and the extent of the radiotherapy treatment that she later received. This was due to the fact that the evidence had been directed to the issue of the effect that the allegedly negligent delay had on the increase in intracranial pressure and the decision to perform a lumbar puncture.

(e) The opinion of Dr. Berry as expressed in a report dated 28 October 2003 provides the basis for a claim that “… their delay in diagnosing and treating Reema’s medulloblastoma caused Reema to receive more radiation therapy treatment than she would have but for their delay in diagnosis for the reasons set out in Dr. Berry’s report and that this increased amount of radiotherapy increased the risk of the injuries that Reema has in fact suffered” (paragraph 18 of Ms. Walsh’s affidavit sworn 1 April 2003).

28 In order to fully understand the nature and significance of the proposed amendment and the new contention based upon it, it is necessary to add to what I have previously stated on the question of “seeding”.

29 The issue as to whether the tumour had spread to other regions of the central nervous system (referred to as either dissemination or seeding) in the early stages of the plaintiff’s condition as marked by various signs and symptoms is central to the question as to whether or not it can be said that the nature of the radiotherapy treatment that was in due course required arose from or by reason of the alleged delay in diagnosis and the development of the plaintiff’s disease. If, as I assume based on the material before me, the defendants’ experts will contend, that seeding had already taken place in the early stages, then the argument will be that the more severe form of radiotherapy would have been required in any event. On that basis, it will be contended, any damage consequent upon it could not be causally linked to any act or omission (including delay in diagnosis) by the first or second defendants.

30 On evidence presently available, it appears that there is no definitive evidence establishing whether or not seeding had or had not occurred in the early stages. Dr. Martin P. Berry for the plaintiff, for example, asserts that there was no evidence of seeding in late December 1990 and early January 1991. He relies, in part, on statistical information in the relevant literature which he stated suggests that gross evidence of seeding is not evident at the time of diagnosis and also upon the claimed absence of any signs or symptoms suggestive of the fact that it had taken place up to 13 January 1991. From that date, it was documented that there had been significant neurological deterioration. One factor which may bear upon this issue is the natural history of medulloblastoma which Dr. Klug has claimed has a rapid spread. On this basis, so the argument goes, the fact of its detection in February may not mean that it was present during the period late December 1990 and early January 1991.

31 The defendant’s experts will, it seems, rely upon other factors which, it is suggested, point in the opposite direction. It is not necessary for me in this application to examine specific factors or indicia that they may rely upon. What is clear is that central to the new contention is a question of fact, in particular, a question as to medical fact that will, if leave to amend is granted, arise for determination at trial. It is not an issue or matter that was specifically the subject of a question put to the experts who attended the joint conference.

32 The medical fact to which I refer may, therefore, be stated as being whether or not seeding had taken place when it is alleged that the tumour ought to have been diagnosed by CT scan at the end of December 1990 or during early January 1991 and before the lumbar puncture was performed on 13 January 1991.

The joint expert report

33 At the relevant time the provisions concerning conferences between experts was governed by the provisions of Part 36 Rule 13CA of the Supreme Court Rules 1970 and Practice Note No. 121, joint conferences of expert witnesses.

34 On 8 August 2002, Studdert, J. made orders by consent on a notice of motion filed by the first and second defendants for orders concerning the appointment of a joint conference of experts.

35 The report of 8 November 2002, pursuant to clause 26 of Practice Note No. 121, was in due course sent to Studdert, J. Those present at the conference held on 8 November 2002 were Professor Robert Jones, Dr. Ian Hopkins, Dr. Ian Johnston and Associate Professor John Watson.

36 In all, nine questions were posed. Answers were provided to those questions which were held to be applicable. I set out below questions and answers 1 and 2 contained in the joint report:-

“1. Assuming that in Reema Tabet’s case:-
• there had been no delay in diagnosis of the medulloblastoma between 28 December 1990 and 14 January 1991; and
• no lumbar puncture performed on 13 January 1991; and
• conventional treatment given by excision of the medulloblastoma, chemotherapy and radiotherapy,
would you consider it likely or unlikely that Reema would suffered (sic) any or all of the following disabilities:-
(a) spastic ataxia, balance and co-ordination impairment:

likely

(b) impaired vision:

after discussion about the uncertainties of mechanisms, on balance of probabilities we agreed this was likely

(c) impaired memory:

likely

(d) dysarthria:

(e) impaired intellectual ability:

likely

(f) contractures:

likely

(g) epilepsy:

likely

(h) swallowing problems:

likely

(i) loss of bladder and bowel control:

likely

2. Did any delay in diagnosis and treatment of Reema’s medulloblastoma between 28 December 1990 and 14 January 1991 cause or contribute to cause any of the following disabilities:-

(a) Spastic ataxia, balance and co-ordination impairment:


No
(b) Impaired vision:
We do not think it is possible to understand fully the mechanisms of the impaired vision. Although it is likely that her optic atrophy is due to local tumour deposits and/or radiotherapy, the period(s) of raised intracranial pressure may have contributed. Radiotherapy per se would not have caused the early visual impairment.
(c) Impaired memory:
No
(d) Dysarthria:
No
(e) Impaired intellectual ability:
No
(f) Contractures:
No
(g) Epilepsy:
No
(h) Swallowing problems:
No
(i) Loss of bladder and bowel control:
No .”

37 The joint expert report reveals that there was no question and answer specifically directed to the point which the plaintiff now wishes to pursue by way of amendment to the Statement of Claim, the new contention. It may well be that the experts in fact had a view on the question of the spread of seeding of the metastasis. It may even be that that view was considered when providing the answers to the questions posed. However, that matter was not one upon which the experts were specifically requested or required to consider and express an opinion upon. It was one, as earlier discussed, which depended, at least, in part, upon whether there was evidence that seeding had taken place at a time that is consistent with and supported the new contention. A dispute as to that significant factual question is one that is unlikely to render itself as suitable to resolution other than by conventional trial processes.

38 It is apparent from Ms. Walsh’s affidavit evidence that the possible significance of the issue of delay in diagnosis in terms of the issue of seeding and the nature of the radiotherapy treatment and the damage said to have been caused by it had not been identified at the time that consent was given to the appointment of a joint conference of experts. At least they had not been identified at that time by the plaintiff’s representatives.

39 On this application, I am of the opinion that:-

• the plaintiff has identified a liability issue in the proposed Amended Statement of Claim ( “the new contention” );

• that issue is one which depends upon the establishment of a medical fact (the existence and timing of seeding );

• that issue was not specifically an issue or matter posed by way of a question to the joint conference of experts;

• there was no statement of agreed fact or assumption as to the existence or otherwise of the matters concerning seeding as discussed above.

40 There is a real question as to whether the joint expert report can or should itself operate or be allowed to operate as a restricting factor on the discretionary power in the Court to grant an amendment to pleadings. As I proceed to examine below, in medical negligence litigation where there is an important contested medical fact in issue, it will often be the case that the experts’ conference process under the Rules will not be appropriate and, generally speaking, will not be ordered. Where there is somewhat belatedly identified an important matter of medical fact which is sought to be introduced by amendment subsequent to a joint expert report, should the report nonetheless have primacy so as to exclude the fact from being litigated?

41 In considering this matter it is instructive to refer to the principles that are applicable on an application for a joint conference and the approach which this Court has taken to that question. The principles have been enunciated in a line of cased decided by Studdert, J. I refer to his Honour’s judgments in Boardman v. South Eastern Sydney Area Health Service [2001] NSWSC 930, in Booth v. Francesco [2002] NSWSC 154 and in Spasovicv. Sydney Adventist Hospital [2002] NSWSC 164. A judge considering such an application must be satisfied of the existence of a reasonable expectation that the appointment of the conference sought by a party could achieve one or more of the objectives expressed in paragraph 2 of Practice Note No. 121 (see Booth (supra) at [24] and Habelrih v. Szirt [2004] NSWSC 54 per Studdert, J. at [12].

42 In determining applications for the appointment of conferences between experts, this Court has applied what has been termed the possible utility test. It was first applied by Studdert, J. in Booth. In that case, Studdert, J. stated that there existed a clear, firm and considered divergence of opinion between the experts as to whether a hysterectomy was an appropriate procedure for the plaintiff. That, his Honour held, was the most central and critical medical issue in the case:-

“… moreover, it is to state the obvious that if a conference was ordered, it would not address the critical factual issues between the plaintiff and the defendant as to what advice and warning the plaintiff was given and the plaintiff’s response to such.”

43 It was accordingly held that the possible utility test had not been satisfied in the circumstances of that case.

44 In Spasovic, Studdert, J. considered an application made by the second defendant and supported by the first defendant, but opposed by the plaintiffs, for an order pursuant to Part 36 Rule 13CA of the Supreme Court Rules for a conference of medical experts in a case involving complex medical issues on causation. Following a detailed examination of the issues and the opinions, noting a marked division of opinion between the experts, his Honour stated (at [32]):-

“A complicating feature in this case is that the first plaintiff’s presentation, symptoms and complaints in hospital may well bear upon the determination of the questions suggested for consideration by Ms. Murphy, or at least several of them. There is, it would seem, a very real issue as to the nature and extent of the first plaintiff’s symptoms and complaints and the relevant period in hospital. On one view which may ultimately be accepted by the court, the symptoms and complaints of headache were relatively mild and had passed some time prior to the first plaintiff’s discharge from hospital. On the other hand, there is evidence, apparently, that the complaints of headaches were significant and that they persisted and, as is asserted in the pleadings, the first plaintiff suffered from dizziness and was in a state of confusion. Whether the symptoms were mild and had passed on the one hand, or whether they were more severe and persistent on the other, present an issue which can only be determined at trial …
So it is that the doctors at any conference would have to be presented with alternative assumptions of fact and could only state their opinions accordingly. It seems to me unlikely that opinions expressed on two different assumed histories will assist in early resolution of this case or the various questions suggested for consideration. There are, in addition, significant underlying differences in medical opinion between the experts. …
I am not satisfied that the possible utility test, as I expressed that test in Booth , is met on this application. …”

45 In opposing the application to amend in these proceedings, Mr. S. Donaldson, SC. on behalf of the defendants advanced a number of arguments including the following:-

• Unequivocal negative answers were provided to each of the questions posed for the conference of experts. If all that was required in this case was for the plaintiffs to make an application for leave to amend, the purpose of the rules governing conferences between experts would be thwarted.

• The purpose of the rules would also be thwarted if a party were permitted to proceed effectively as though no agreement had been reached at a conference of experts and parties are made to continue with the preparation of the proceedings as though the issues were as wide as if the matters of agreement had never been the subject of agreement.

• The principles enunciated by the High Court in Queensland v. J.L. Holdings (1997) 189 CLR 146 are of no avail to a plaintiff who seeks to circumvent an agreement reached at a court ordered meeting of experts.

• There is an onus and indeed an obligation on a party such as the plaintiff in the present case to demonstrate that a proper occasion exists for the grant of leave and that that threshold has not been overcome in this application.

• The joint report of experts is a report provided to the Court. Questions of admissibility do not arise on this application in terms of s.36.13CA(5). In responding to a criticism of the report by Mr. Burton, SC., it was contended that there is no requirement for the experts to state the basis or reasons for their answer and there is no place for the principle enunciated in Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705. The joint report records matters of agreement in a report directed to the Court.

• The joint report is not at this point, insofar as it reflects agreement, evidence to be weighed against other evidence to be tested. It simply operates in the same way as a pleading, to confine the issues which the parties are entitled to explore.

Leave to amend: discretionary principles

46 An issue has been raised by the solicitors for the plaintiff concerning events that occurred at the conference of experts. It is unnecessary for these issues to be addressed in order to resolve the present application. I will accordingly refer to them briefly.

47 On 25 January 2005, the solicitors for the plaintiff sought information concerning discussions held at the joint conference and records which were available at the conference including, in particular, radiological films taken to the conference by Professor Robert Jones, paediatric neurosurgeon. Professor Jones has prepared a report dated 6 November 2002 commenting upon the initial CT of 14 January 1991 and upon certain magnetic resonance imaging films of 24 January 1995 from Royal Prince Alfred Hospital. Contentions have been raised on behalf of the plaintiff that the joint conference of experts miscarried by reason of the fact that the plaintiff’s experts did not have the opportunity of examining the radiological films brought to the conference by Professor Jones and it was contended, although disputed by the defendants, that the plaintiff was not represented by an appropriately qualified specialist who was in a position to evaluate, assess and comment upon the radiological evidence discussed at the conference.

48 In relation to the contention made on behalf of the plaintiff that the joint conference of experts process in some way miscarried, Mr. Donaldson, SC. contended that the contention is one to be examined critically. In particular, he submitted:-

• The suggestion that Dr. Hopkins was not qualified to deal with relevant issues discussed at the joint conference because he was a paediatrician, overlooked the fact that in fact he had qualifications as a senior neurologist at the Royal Children’s Hospital.

• Specifically, there was no basis established for the contention that Dr. Hopkins was not equipped to deal with the questions raised at the joint conference and was not equipped to interpret and understand CT scans or other investigations relating to the plaintiff’s brain or central nervous system.

49 As will be seen from the approach which I adopt to the present application it is unnecessary for me to resolve the contention that the joint conference process was in some way flawed in that it miscarried. Nor do I feel it necessary to discuss the possible significance of the radiological films taken to the conference by Professor Jones.

50 It was senior counsel’s submission on behalf of the defendants that the Court’s power to permit amendment in this case is one to be exercised with due regard to the following matters:-

(a) The amendment application should only be granted if there is a proper and legitimate forensic purpose and a proper occasion for its exercise.

(b) The potential restriction in Rule 36.13CA(6) on evidence from being adduced, without leave, is inconsistent with the matters agreed in the joint conference of experts.

(c) The evidentiary basis for the case foreshadowed by the proposed amendment (in particular the evidence of Dr. Berry) is essentially based upon statistics in the relevant literature and which is said to establish a percentage range of people with cancer who have seeding at the time of diagnosis.

(d) Consistently with the general principle evidenced by Part 14C, where a whole new thesis is sought to be introduced into a medical negligence case, said to have been developed in response to the experts’ joint report, a proper exercise of the discretion would not permit the defendants to be sued without cogent supporting expert evidence in connection with causation. The reference to statistics by Dr. Berry does not, it was contended, constitute proper support. Reference was also made to the opinion expressed by Dr. Klug in a report to the plaintiff’s solicitors which it was contended was inconsistent with views expressed by Dr. Hopkins.

51 Mr. Donaldson, SC. accurately stated that the issue of injury occasioned by radiotherapy brought about by the development of metastasis, was an issue which was not directly addressed or it is very unlikely to have been jointly addressed in the joint experts’ deliberations “… because no-one was of the opinion there was that association between the plaintiff’s injuries and the alleged breaches of duty at the time that conference took place. It had never been raised before. It has only been raised since the joint experts’ report” (t.43).

52 The question as to whether or not a plaintiff should be permitted to reformulate the case to raise allegations which are directly contrary to agreed answers arising from a joint experts’ conference, raises important questions as to the status and effect of the report of a joint conference of experts conducted in accordance with the rules of court.

The status and effect of the report of the joint conference of experts

53 In general terms, where there has been a report from a joint conference of experts conducted in accordance with the rules of court (now under the Uniform Civil Procedure Rules 2005, in accordance with s.31.25), an application for leave to amend a pleading cannot proceed in complete disregard of that which has taken place in consequence of a joint conference of experts which has been properly conducted. To do otherwise would permit inconsistencies with matters that have been agreed in accordance with a court-sanctioned process and thereby undermine the process itself. It is accordingly incumbent upon an applicant in such circumstances to establish a principled basis upon which an application to amend to raise inconsistent matters may be granted. In this context, it is essential that the matters that have been the subject of agreement between the experts be carefully examined as must the precise subject matter of the amendment proposed.

54 Rule 36.13CA of the Supreme Court Rules (expressed in similar terms to what is now found in s.31.25 of the Uniform Civil Procedure Rules) provides for expert witnesses to confer upon specified matters. As previously discussed, not all matters arising in professional negligence litigation will be suitable for the joint conference process.

55 Rule 36.13CA(5) provides that parties may agree, at any time, to be bound by agreement on any specified matter. It is important in the present case to note that no such agreement in those terms was reached. The question arising in the present application needs to be considered not strictly by reference to Rule 36.13CA(6), but, however, with some regard to its intended function. That Rule provides:-

“Where, pursuant to this Rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the court, adduce expert evidence inconsistent with the matter agreed.”

56 In determining the status and relevance of the report of the joint conference of experts in this matter, the following are to be noted:-

(a) As the parties did not expressly agree to be bound by the agreement on any specified matter, the joint report may not be tendered at the trial as evidence of the matter agreed: Rule 36.13CA(5).

(b) The joint report may, however, be used or tendered at the trial but only in accordance with the rules of evidence and the practices of the court: Rule 36.13CA(5).

(c) The report of the joint conference of experts operates as a restriction on any party (subject to leave), in particular, the plaintiff, on adducing expert evidence that is inconsistent with any matter agreed.

57 Accordingly, whilst the report in this matter records agreed answers to specified questions, it does not constitute either a binding or irrevocable agreement on any specified matter nor does it possess the status of a pleading in which matters have been admitted nor is it a document that definitively frames issues in the proceedings. Its potential function is that it may either “be used or tendered” at the trial as specified in Rule 36.13CA(5).

58 In considering the prospective operation of Rule 36.13CA(6) whereby evidence may not be adduced without the leave of the Court in circumstances in which that sub-rule operates, it is necessary to consider how sub-rule (6) may be applied at trial. The new contention was not, as previously analysed, itself a “matter agreed” within the Rule by reason of the fact it was not a matter that had arisen as an issue between the parties. If allowed by way of amendment, it could be a material matter going to causation.

59 The new contention”, itself not having been specifically raised on the existing Statement of Claim and therefore not a “matter” considered by the joint conference of experts, is therefore currently not itself the subject of any agreement, adverse admission or any form of estoppel.

60 If sub-rule (6) of Rule 36.13CA is a potential obstacle to the admission of expert evidence on the new contention, this could only be by reason of the experts’ agreed answers to questions 1 and 2 which deal with what may be referred to as the broad issue of causation but not with the subject matter of the new contention itself.

61 The fact that the experts have agreed on answers which go to what I have termed the broad causation issue, but not to the new contention itself, would not in the circumstances referred to in [59] provide a sufficient basis to disallow the amendment sought.

62 It is clear, I believe, that, had the new contention issue been raised at the outset, and if the Court had been required to consider whether the joint conference of experts process under the rules was appropriate for this case, having regard to the principles to which I have earlier referred, it must be very doubtful as to whether it would have considered that process to be appropriate. This is on the basis that the issue involves a causation question which itself is based on a disputed fact relevant to the matter of seeding.

63 How a judge may, at trial, in the circumstances referred to in [58] and [59], rule on an application for leave to adduce expert evidence on the new contention which may be said to be inconsistent with the agreed answers to questions 1 and 2 need not be addressed in this application. The application I am required to decide, of course, concerns a pre-trial question which is limited to the question of amendment of pleadings. It is sufficient to state that it would be open to the trial judge to have regard to the circumstances referred to in [58] and [59] in deciding the grant of leave under Part 36 Rule 13CA(6).

64 Absent any particular relevant issue going to prejudice or any legal bar to an amendment, ordinarily a court on an application for leave to amend would be inclined to accede to the application in order that the plaintiff is not prevented from raising and pursuing any relevant issue in support of his or her claim, particularly in circumstances where, there is shown to exist specialist expert evidence supportive of the contentions or allegations which the plaintiff wishes to pursue by the amendment: J.L. Holdings (supra); Tringali Stewardson Stubbs & Collett Limited (1966) 66 SR (NSW) 335 at 346 and John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706, 712.

65 I am of the opinion that, particularly having regard to the circumstances referred to in [57] to [60] and the principles enunciated in the cases in [64] and there being, in my opinion, no sound and compelling reason to prevent the plaintiff from amending, it is appropriate that leave be granted to enable the plaintiff to pursue the case (the new contention) which her legal representatives consider to be appropriate in her interests.

Conclusions

66 The analysis of the facts relevant to the present application leads me to the following conclusions:-

• Where a plaintiff seeks an amendment to raise an arguable issue which is maintainable at law and delay in seeking it has not occasioned the other party irremediable prejudice, justice being the paramount consideration, the plaintiff should not be prevented or shut out from a determination of the issue: Queensland v. J.L. Holdings (1996-1997) 189 CLR 146, 155.

• The plaintiff’s proposed amendment raises an arguable issue which is potentially relevant to her allegations both of breach of duty and causation.

• The issue raised by the proposed amendment will involve an examination of complex medical questions, the resolution of which involves questions of both fact and expert medical analysis.

• Of its nature the issue is one that is only likely to be resolved by conventional trial processes and cannot be taken to have been considered, resolved and foreclosed by the answers of the joint conference of experts held on 8 November 2002.

• Whilst the identification of “the new contention” may well have resulted from inquiry prompted by negative or adverse answers provided by the experts attending the joint conference, that does not in my opinion undermine either the demonstrated existence of an arguable issue nor the primacy of the principle of justice to which I have referred.

• A report of a joint conference of experts held in accordance with the rules of Court does not operate as an irrevocable bar on the subsequent raising of an issue not dealt with in or by the report. Whilst a report of a joint conference is intended to assist in resolving issues and in limiting the evidence, time and cost associated with proceedings, it cannot, in my opinion, where justice otherwise demands it, inhibit a proper exercise of the discretion to permit an amendment in accordance with the abovementioned principles.

• Whilst answers provided by the joint conference of experts are in many respects adverse to the plaintiff on the issue of causation, that issue must, in order that justice is done, be further considered and determined following appropriate examination of the complex issues associated with “the new contention” .

• The plaintiff accordingly should have leave to amend to ensure that this may take place.

67 Accordingly, the orders I make are:-

(a) Pursuant to Rule 19.1 of the Uniform Civil Procedure Rules 2005, I grant leave to the plaintiff to amend the Statement of Claim.

(b) I direct the plaintiff to file and serve within 21 days an amended statement of claim upon the solicitors for the first and second defendants.

(c) The plaintiff’s notice of motion filed on 4 March 2005 otherwise be stood over to a date to be fixed. I grant liberty to apply in this respect.

(d) The further amended notice of motion filed in court on 5 July 2005 on behalf of the first and second defendants is stood over to a date to be fixed. Liberty to apply to re-list the motion on seven days notice.

(e) Costs of the motion reserved. Liberty to apply on the question of costs of the plaintiff’s notice of motion filed on 4 March 2005.

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