Walton v Majid

[2011] WADC 69

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WALTON -v- MAJID [2011] WADC 69

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   4 MARCH 2011

DELIVERED          :   5 MAY 2011

FILE NO/S:   CIV 1510 of 2008

BETWEEN:   TROY WALTON

Plaintiff

AND

ALAN MAJID
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to amend statement of claim - Application to amend statement of claim after the limitation period has expired - Turns on its facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr D I Connor

Defendant:     Mr T J Palmer

Solicitors:

Plaintiff:     Hoffmans

Defendant:     Clayton Utz

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

Tabet v Gett [2010] HCA 12

1. DEPUTY REGISTRAR HARMAN:  The plaintiff's application is for leave to amend his statement of claim to add three perhaps four cases against the defendant.  The application was opposed.  The plaintiff carries the onus of satisfying the court that it is appropriate to grant leave to amend in the terms of the minute dated 4 February 2011.

2. According to the statement of claim the defendant is a medical practitioner.  On or about 13 March 2006 when the plaintiff consulted the defendant regarding his left knee he presented with pain, slight limitation of movement and a lump.  In the course of the consultation the defendant examined the lump and advised the plaintiff that it could be a Baker's cyst and that he would arrange for a specialist orthopaedic review.  In conducting the examination and providing the advice the plaintiff claims that the defendant breached the duty of care owed to him.  Particulars of that allegation are as follows:

   9.1The defendant failed to consider as part of his deferential diagnosis that the lump may not have been a Baker's cyst and refer the plaintiff for immediate ultrasonography or other investigation to exclude competing possibilities such as the possibility that the lump was a cancerous lesion.  Had the defendant done so, such investigations would have led to a timely diagnosis of the lump as osteosarcoma.

   9.2The defendant failed to conduct a proper physical examination of the plaintiff and in particular failed to properly palpate the lump.  Proper palpation would have revealed that the lump was hard which is inconsistent with it being a Baker's cyst.

   9.3The defendant failed to advise the plaintiff that he should seek medical review if:-

   9.3.1His knee symptoms worsened.

   9.3.2The lump enlarged. 

   Had the plaintiff been so advised he would have sought medical attention within a short time of the consultation.

   9.4The defendant failed to arrange timely orthopaedic referral for the plaintiff.  The defendant ought to have arranged specialist review of the plaintiff to take place within weeks of the consultation.  Had the defendant done so the osteosarcoma would have been diagnosed at or shortly after specialist review.

3. The plaintiff pleads that following the consultation his painful knee symptoms became worse, the lump increased in size and that investigations subsequent to his attendance at hospital on 16 September 2006 revealed an osteosarcoma.  He subsequently underwent surgery resulting in replacement of the knee joint.  He alleges that because of the defendant's negligence the osteosarcoma was not diagnosed at about the time of the consultation and that he has suffered loss.  Under the heading 'Consequences of the delay in diagnosing osteosarcoma', he specifies his case as follows:

   10.1But for the negligence of the defendant, the osteosarcoma would have been diagnosed in March 2006 at which time:

   10.1.1the osteosarcoma would have been smaller;

   10.1.2the osteosarcoma's spread would have been less extensive than it was in September 2006.

   10.2If the osteosarcoma had been diagnosed in March 2006:

   10.2.1the plaintiff would not have required resection and replacement of his knee joint;

   10.2.2the plaintiff would have a greater life expectancy. 

4. The first new case is under the Fair Trading Act 1987 (WA). The plaintiff would allege that on 13 March 2006 firstly the defendant agreed for valuable consideration to act as the plaintiff's doctor and secondly, engaged in trade and commerce within the meaning of s 5(1) of the Act. At par 9, he proposes to add:

   9.5Further, and in the alternative, the Defendant's conduct during the consultation was incorrect medical practice and deceptive and/or misleading in contravention of the FTA. 

   PARTICUALRS OF BREACH OF FTA

   The defendant's:-

   9.5.1advice pleaded at paragraphs 4.3, 4.4 and 4.5; and

   9.5.2failure to correctly advise the plaintiff that:-

   9.5.2.1the plaintiff should seek medical attention if his knee symptoms worsened or the lump enlarged;

   9.5.2.2the lump required immediate investigation by an orthopaedic surgeon to exclude the possibility that it was a cancerous lesion;

   9.5.2.3failure to arrange investigations by ultrasound or other imaging of the lump;

   was deceptive and/or misleading in that it deceived and/or misled the plaintiff to believe that:-

   9.5.3it was not necessary for the lump to be further investigated when it required immediate investigation;

   9.5.4the lump was not dangerous when in fact it was potentially life threatening;

   9.5.5the lump did not have to be reviewed by a specialist surgeon until September 2007 when immediate review was required;

   9.5.6that medical investigation of any increase in the size of the lump or in his knee symptoms could wait until the specialist medical review that the defendant told the plaintiff he would arrange, when any such increase required immediate medical review and investigation.

5. Thereafter the plaintiff seeks to add to consequential features of the common law claim propositions in the alternative that would establish similar features of his claim for statutory relief.

6. The second proposed case is brought under the existing case alternatively under the statutory case as follows:

   10.3The plaintiff would not have suffered the knee pain and other associated symptoms he endured as a result of the continued presence and growth of the lump from about March 2006 until November 2006 when his knee was surgically treated.

7. Similarly the third proposed case.  It is as follows:

   10.4Alternatively to 10.2.1, the plaintiff lost a significant chance of avoiding the necessity of undergoing total knee replacement surgery.

8. There are three matters that emerge from par 9.5 of the minute.  The first is that the words 'the defendant's conduct during the consultation was incorrect medical practice' at least suggest scope for the plaintiff to advance yet a further case that is not under the Act.  There is no allegation of material fact to support that assertion.  Neither the feature of the defendant's conduct that would amount to incorrect medical practice nor the standard is identified.  The second is that what is proposed appears as particulars of the allegation that the defendant negligently and unskilfully advised and examined the plaintiff.  The content of par 9.5 does not relate to those allegations.  The third is that the content of par 9.5 is only particulars.  As the plaintiff proposes at least a distinct case under the Act the material facts ought to be pleaded so that the defendant can respond. 

9. As to the statutory claim, at the hearing the plaintiff recognised that there was no pleaded link between the alleged breach of the Act and the plaintiff's loss. 

10. A significant feature of the statutory case is that it draws on events that unfolded more than three years earlier than the date of the application and that it would be open to the defendant to plead that fact by way of limitation.  In such circumstances O 21 would countenance a grant of leave to amend only if it was just to do so. 

11. In assessing that part of the application I have reflected upon the task that the introduction of the allegation that the defendant agreed for valuable consideration to act as the plaintiff's doctor, may present to the defendant.  I have read the defendant's comprehensive allegations filed on 14 June 2008 as to what transpired at the consultation.  I have considered that he may then have been comprehensively proofed.  I have read the defendant's answers to the plaintiff's interrogatories dated 30 September 2008; have speculated on the meaning of the word 'specific' in the first answer; and what could drawn from the whole of the evidence.  In the result I would be attuned to the prospect that the proposed allegation at par 2.2a may unfairly prejudice the defendant but that as for the balance I could make no assessment as to whether the defendant may be unfairly disadvantaged by the proposed amendment.  The critical consideration is that the onus is on the plaintiff.  He has not filed any affidavit in support of the proposition that it would be just to grant leave.  There is no basis upon which I could reach a conclusion that it would be just to allow the case to be put.

12. By the proposed case at par 10.3 the plaintiff would rely upon what was portrayed at the hearing as his incrementally worsening knee pain over the period of some six months.  By way of contrast the allegation at par 6 of the increasing size of the lump over the same period only supports the allegation at par 10.1 which specifies that the lump would have been smaller in March than it was in September.  As the case is pleaded the increased size of the lump founds the case for a relatively greater extent of surgical intervention.  I accept that par 6 also refers to painful knee symptoms but they are not specified.  To the extent that par 6 may be taken to refer to increasing pain, pain is not a feature of the existing case.  On a broad view, in contrast with the existing case the focus of the proposed case is pain.  As the experience of pain is subjective, in a context where the applicant should demonstrate support for a proposed case, the lack of evidence is stark.  The fact that the plaintiff has not previously brought such an obvious case calls for an explanation.  It is not as though the application is made at a relatively early stage in the action.

13. Although the writ does not specify the date it was filed it bears the date 25 June 2008.  The plaintiff entered the action for trial by a document dated 27 November 2008.  On 17 March 2009, 13 May 2009, 6 July 2009, 2 September 2009 and 13 October 2009, the action was before the court by way of a pre‑trial conference.  On the last of those occasions it was allocated an appointment for a listing conference on 14 December 2009.  There was a further attendance by the parties on the pre‑trial conference on 30 November 2009.  The matter was subsequently listed for directions and on 29 June 2010 the plaintiff was required to file and serve any application for leave to amend the statement of claim by 6 July 2010.  The minute of proposed amended statement of claim and the application were filed on 22 July 2010.  It was first listed for hearing on 13 August 2010 but was adjourned part heard to allow the plaintiff to file a fresh minute.  By the time of the final hearing the proposal for amendment was in the form of the minute now before me.

14. I have considered that the want of evidence on the part of the applicant tells against each of the first and second proposed cases.  The lack of support for the application was canvassed at the hearing and it appeared to be the case that the applicant then sought some direction to that end.  My observation at the time was that it was for parties to determine how they wish to present their cases.  In my opinion it would be rare for a court would intervene. 

15. By par 10.4 the plaintiff seeks to put a proposition as an alternative to that put at par 10.2.1, by which he contends that if the osteosarcoma had been diagnosed in March he would not have required resection and replacement of his knee.  The proposed case is that (implicitly because the osteosarcoma was not diagnosed in March) the plaintiff lost the significant chance of avoiding the necessity of undergoing total knee replacement surgery.  The focus of consideration in the new case would be on the process of assessing the extent of surgery that had not eventuated.

16. The significant feature of that case is that in Tabet v Gett [2010] HCA 12 the High Court determined that the loss specified at par 10.4 is not recoverable in tort. The fact that I have determined that the proposed case under the Fair Trading Act is not available carries with it the consequence that the case at par 10.4 could not succeed.

17. In my opinion at each point the plaintiff has failed to satisfy the onus.