Tynan v Minister for Health - [2011] WADC 228

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TYNAN -v- MINISTER FOR HEALTH [2011] WADC 228

CORAM: COMMISSIONER GETHING

HEARD: 8 DECEMBER 2011

DELIVERED : 8 DECEMBER 2011

FILE NO/S: CIV 7430 of 1992

BETWEEN: MICHAEL DAVID TYNAN
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Practice and procedure - Late application to adjourn a trial

Legislation:

Nil

Result:

Application to vacate trial dismissed

Representation:

Counsel:

Plaintiff: Ms F A Stanton
Defendant: Ms C J Thatcher

Solicitors:

Plaintiff: MDS Legal
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

COMMISSIONER GETHING: [This transcript was delivered extemporaneously on 8 December 2011 and edited from transcript].
By application filed earlier today, the defendant sought to adjourn the trial of this action. The action is listed for seven days commencing 12 December 2011.
The events the subject of the allegation of negligence occurred in 1991, when the plaintiff was 5. This action was commenced nearly 20 years ago in 1992. It is the third oldest active case in the District Court.
In support of the affidavit, the defendant filed an affidavit of Maryellen Hipworth, a solicitor in the employ of the State Solicitor's Office, which is representing the defendant. The affidavit sets out a litany of communications between the parties as they have sought to get this matter ready for trial.
The basis for the adjournment application, as set out in Ms Hipworth's affidavit, is that the defendant would be prejudiced at trial if the plaintiff is able to rely on two late reports of expert witnesses. Specifically, there is a report of Dr Honey, an orthopaedic surgeon, dated 6 December 2011; and a report of Dr Proud, a psychiatrist, dated 29 November 2011. No specifics are given as to the nature of the prejudice the defendant asserts it will suffer. From the bar table, I was advised that, in relation to the report of Dr Proud, the defendant now wishes to have the plaintiff reviewed by a psychiatrist for the purposes of leading psychiatric evidence at trial.
In opposition to the application, the plaintiff swore an affidavit by his solicitor, Fiona Stanton, dated 8 December 2011. This affidavit also annexes some of the correspondence between the parties relating to getting this matter ready for trial. At pars 34 and 35 of that affidavit, Ms Stanton includes two paragraphs from a without prejudice communication. Counsel for the defendant was of the view that no sufficient basis had been given for the inclusion of without prejudice information. I do not need to rely on those two paragraphs for the purposes of determining this application, so the issue does not arise for practical purposes.
The relevant discretionary framework is that set out in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. The overarching issue in the exercise of discretion is to balance the competing risks of injustice in the context of maintaining public confidence in the legal system, as a whole. The three factors for consideration are the prejudice to the plaintiff if the trial dates are adjourned, the prejudice to the defendant if the trial dates are not adjourned, and the impact on the public interest if the trial is adjourned.
Dealing with the public interest first, as I have said, this case is the third oldest active case in the District Court and goes back to events occurring 20 years ago. In the course of submissions, counsel for both parties gave various explanations in terms of fault for this delay. To my mind, the question of fault is largely irrelevant. The key issue for the maintenance of justice is that these events occurred 20 years ago. There is a very high imperative that the matter goes to trial, and goes to trial as soon as practicable.
The specific prejudice to the plaintiff if the trial is adjourned was largely given from the bar table by counsel for the plaintiff. Given the timing within which this application was made and heard, this was an acceptable approach. The specific prejudice is that the plaintiff is in a difficult financial situation and lives in Geraldton. He has made arrangements to come down to Perth to participate for the duration of the trial.
Self‑evidently, a large amount of time, effort and cost has gone into organising the plaintiff's witnesses, including very busy medical practitioners. There are likely to be significant costs to the plaintiff if the trial is adjourned. With the best will in the world, it may well be unlikely that the court could relist the adjourned trial within four to six months.
The key issue turns on the prejudice to the defendant. In dealing with the prejudice to the defendant, it is convenient to start with the report of Dr Honey, dated 6 December 2011. In the plaintiff's index of expert's reports, filed pursuant to District Court Rules 2005 r 45E on 7 November 2011, the plaintiff refers to four earlier reports of Dr Honey: two reports of 23 June 2003, a report of 12 October 2005 and a report of 8 July 2011. The plaintiff's witness list, filed on 21 November 2011, includes Dr Honey.
In looking at Dr Honey's report of 6 December 2011, counsel for the plaintiff drew my attention to the similarities between the subject matter of that report and the subject matter of the report of 8 July 2011. Both reports deal with the issue of causation. Both reports deal with the length of time between identification of compartment syndrome and treatment; in each case, Dr Honey, referring to a time period of one hour. The characterisation placed on the 6 December 2011 report is, in essence, that it was a repetition and elaboration of the report of 8 July 2011.
In the defendant's list of witnesses, it proposes to call a Mr Michael Holt, who is also an orthopaedic surgeon. In the defendant's list of experts' reports filed 17 November, the defendant refers to four reports of Mr Holt, being those dated 2 November 1999, 9 June 2003, 19 September 2003 and 18 March 2009. It is the 18 March 2009 report that is the significant report for present purposes.
The 18 March 2009 report to the defendant's solicitors goes into the issue of liability. It is apparent from the defendant's index of expert reports that it is going to rely on this report. Mr Holt is only giving evidence in relation to the question of liability. It is apparent that Mr Holt has not seen the plaintiff for many years; the last reference I can see on the file is to a review in June 2003. It is thus evident that Mr Holt is not going to be able to give evidence in relation to the current impact of the disabilities on the plaintiff.
The evidence the current impact of the plaintiff's disabilities appears to be given by Dr Brian Dare, an occupational physician. Dr Dare is on the defendant's list of witnesses for trial and his reports are on its list of expert witness reports. I am advised, from the bar table, that the defendant has provided the plaintiff with an updated response from Dr Dare in relation to a report from Dr Honey of 22 November 2011. That report is not the subject of the present application to adjourn; it is only the 6 December report in relation to causation.
I agree with the plaintiff's characterisation of Dr Honey's report of 6 December. To my mind, it is a repetition and elaboration of the report of 8 July 2011. It seems to me that the defendant will be able to obtain the response of Mr Holt to that report, for the purposes of trial. To the extent that there is any prejudice in relation to the late provision of Dr Honey's report, it can be dealt with by relaxing the requirements of r 45E in relation to expert evidence that is to be given, so as to allow Mr Holt to give oral evidence in relation to the subsequent reports of Dr Honey.
The second report the subject of the adjournment application is a report of Dr Proud, a psychiatrist. In order to deal with this application, it is necessary to briefly consider the pleadings. In his statement of claim, the plaintiff pleads that, as a result of the alleged negligence, he suffered:
[c]hronic unspecified Adjustment Disorder with low self esteem, anxiety, depression and behavioural disturbances.
That is in par 8(vi).
In its further amended defence, the defendant denies the alleged breaches caused the psychological and psychiatric injuries. It further pleads:
If the plaintiff sustained the injury particularised in paragraph (vi), which is not admitted, such injury was caused or contributed to by personal events unrelated to any injury to his arm.
That is in par 8(e) of the amended defence.
In his index of expert's reports, filed 7 November 2011, the plaintiff states that he will rely on reports of two psychiatrists: Dr Stephen Proud, dated 25 November 2005; and Dr Paul Skerritt, dated 9 August 2011. His witness list of 21 November 2011 includes both Dr Proud and Dr Skerritt.
It is evident from the defendant's list of witnesses, filed 18 November 2011, and its list of expert reports, filed 17 November 2011, that the defendant, at that stage, had made a tactical choice not to have the plaintiff reviewed by a psychiatrist and not to call psychiatric evidence at the trial. This places the defendant in a different situation to the report of Dr Honey, in that it is not in a position to obtain further evidence from a witness who is going to give evidence at trial in any event.
In looking at the prejudice to the defendant then, the prejudice takes its context from the defendant's tactical decision not to call psychiatric evidence on the basis of the plaintiff's psychiatric evidence being that of Dr Proud, in his 25 November 2005 report, and Dr Skerritt, in his 9 August 2011 report. That tactical choice was made in the context of the pleadings that I have quoted.
Perhaps the key issue in the exercise of discretion is whether or not the nature of the expert evidence to be given by Dr Proud in his 29 November 2011 report, is so significantly different from his report of 25 November 2005, that the factual basis for the defendant's tactical decision has been changed. If that is the case, then the defendant would have a real cause to make an assertion of prejudice. In order to determine that, it is necessary to go back to the key findings in Dr Proud's report of 25 November 2005 and contrast it with his later report.
The report of Dr Proud of 25 November 2005 is before me in the book of documents that have been prepared for the trial judge at p 1464. The key portion of that report is on p 4, and is in response to an invitation to Dr Proud to provide his opinion as to whether or not the plaintiff was suffering from any psychiatric illness as a result of the negligence of the Geraldton Regional Hospital. Dr Proud's opinion is as follows:
Michael Tynan is currently suffering from alcohol dependency, probable unconfirmed Attention Deficit Hyperactivity Disorder and is also suffering from a chronic unspecified Adjustment Disorder with anxiety and depression as features, as well as behavioural disturbances (DSMIV TR criteria). Michael's alcohol dependency is caused in part by his deformity which led to bullying and low self esteem and chronic feelings of depression and anxiety. However, there is a family history of substance dependency in his brother, and Michael also has other risk factors (the early parental separation, his poor relationship with his biological father, and the difficult relationship with his mother's second husband).
These factors could also have accounted for some of his difficulties in primary school and secondary school and his current state. Michael's Attention Deficit Hyperactivity Disorder may be in part genetic, but may, in part, also be a reaction from his anxiety which in part is linked to his early childhood experiences of being bullied and teased because of the deformity in his arm from his operation. However the same risk factors (early parental separation, poor relationship with his father and stepfather) are also risk factors for the ADHD. The chronic Adjustment Disorder likewise is also a composite of all those factors (surgical deformity, separation of parents, poor relation with father and stepfather).
Dr Proud goes on to say, at page 6 of his report, that the plaintiff's prognosis is poor because his problems began when he was very young, and have been entrenched for almost 15 years. Dr Proud goes on to conclude that perhaps 65% of the plaintiff's current problems can be ascribed to the deformity in his arm, and 35% ascribed to other features that he had described. It is evident that the report of Dr Proud is the factual basis for the pleading in par 8(vi) of the statement of claim.
Dr Proud's 29 November 2011 report is at page 87 and following to Ms Hipworth's affidavit.
At page 96 of Ms Hipworth's affidavit is the briefing letter. The briefing letter attaches some 68 classes of documents and a series of questions that are more indicative of a comprehensive initial assessment than an immediate pre‑trial review. The plaintiff therefore ran the risk of Dr Proud providing a report that would change the factual basis on which the defendant has prepared its case for trial.
Dr Proud saw the plaintiff on 22 November 2011. The key part of the report, for present purposes, is on page 4 of the report, being page 90 of Ms Hipworth's affidavit. Dr Proud was asked for his opinion on the balance of probabilities as to whether or not the plaintiff was currently suffering from any psychiatric illness arising from the deformity of his right arm, the lack of function in respect of his right arm and/or pain experienced when using his right arm. Dr Proud commented as follows:
Mr Tynan has no psychiatric illness at present. He does have not a current depression or anxiety. What he has is an antisocial personality and he has personality characteristics of low self‑esteem, thinking that he is being judged harshly, and ready to fight and protect himself. These long‑term changes in his personality have been generated to some extent by the deformity in his right forearm and not from the lack of function or the pain experienced but by the appearance of it.
Dr Proud was then asked his prognosis in respect of any psychiatric illness he currently suffers, to which he responded that the plaintiff's 'personality characteristics will be there for the rest of his life'.
Dr Proud was also asked as to the nature and severity of any psychiatric illness currently suffered by the plaintiff. He opined that the plaintiff:
has no official psychiatric diagnosis on Axis 1 but he does have these personality characteristics that are the long‑term consequence of, in part, his reaction to the deformity in his arm.
Counsel for the defendant submitted that this report provides a very different assessment of the plaintiff than the report of 25 November 2005. It is different in two respects: the first respect is that the nature of the plaintiff's injury is that it is not a psychiatric illness, rather it is an antisocial personality; the second difference is that the personality characteristics will be there for the rest of his life.
It is apparent from the materials before me in the affidavits that an issue arose between the parties as to whether or not the term 'antisocial personality' is another way of describing the chronic Adjustment Disorder referred to in the statement of claim. In an email from a solicitor in the employment of the plaintiff's solicitor, to Ms Hipworth, of 7 December, the author states:
Having discussed the matter with Dr Proud, it is our understanding that using the term antisocial personality is another way of describing the chronic adjustment disorder referred to in the statement of claim. We will seek to tender Dr Proud's report dated 29 November 2011 in its entirety.
It seems to me that the issue is resolved on this basis: to the extent that the evidence of Dr Proud falls outside the allegation in the statement of claim, to which I have referred, it will not be relevant, and therefore would not be admissible at the trial of the action. To the extent that it falls within the allegation in the statement of claim, then it is difficult to see that there is any change in the context in which the defendant made its tactical decision not to call psychiatric evidence at the trial. The resolution of that issue is one that will ultimately depend on the evidence that Dr Proud gives at trial.
With one caveat, it seems to me that the appropriate course to proceed here is to allow the plaintiff to call the evidence of Dr Proud. To the extent that the evidence of Dr Proud falls within the pleaded case, it seems to me that the basis for the defendant to assert prejudice has no foundation. The defendant is preparing to meet the same case as it prepared for at the point in time when it made the tactical decision not to call psychiatric evidence.
The caveat is this: the plaintiff must proceed to trial on the basis of the statement of claim in its current form. During the course of submissions, I asked counsel for the plaintiff whether she would give an undertaking, on behalf of the plaintiff, not to apply to amend the statement of claim. It seems to me that if that undertaking is given, the basis for any prejudice to the defendant falls away.
On that basis, I am not satisfied that it is appropriate to adjourn the trial listed to commence on 12 December, subject, as I have said, to the giving of that undertaking.