Barlow & Ors v St Vincent's Hospital Sydney Limited

District Court of NSW|2020-08-27

Introduction

This judgment concerns Motions filed by the plaintiff and by the defendant applicable to 15 proceedings brought against St Vincent's Hospital Sydney Limited (SVH). Each plaintiff commenced proceedings by a Statement of Claim filed on 19 September 2019 seeking damages for "pure mental harm".
At the commencement of the hearing I made an order that the 15 Motions be heard together and that evidence in any one case be evidence in each other case, subject to relevance.

Allegations made by each Plaintiff

The following matters were pleaded in each case.
SVH is a public hospital within the meaning of the Health Services Act 1997 (NSW) and is part of the public health system within the meaning of that Act. SVH provided in-patient and out-patient chemotherapy treatment and chemotherapy services to patients who were diagnosed with cancer.
SVH owed a duty of care and skill to its cancer patients to provide chemotherapy in safe doses to treat the cancer, to prevent future recurrence or relapse of the cancer and to optimise the patient's life expectancy.
The discharge of the duty of care and skill owed to the cancer patients obliged SVH to ensure that the chemotherapy treatment complied with recommended chemotherapy dosage levels in accordance with the "eviQ Cancer Treatments Online" protocols (eviQ).
It was alleged that the eviQ protocols were introduced to public hospitals from October 2005 onwards and were adopted by SVH from 27 July 2009.
Each Statement of Claim pleaded that a patient had been given chemotherapy at a level significantly lower than the eviQ protocols. It was alleged that the dosages were so low that the chemotherapy provided to each patient constituted "off-protocol" and "flat-dosing" prescribing and treatment. Essentially they were underdosed.
An inherent risk of off-protocol or flat-dosing chemotherapy treatment was an enhanced risk that the patient's cancer was more likely to relapse and reduce life expectancy.
On 18 February 2016 the ABC "7.30" television program reported on the widespread off-protocol and flat-dosing chemotherapy treatment administered at SVH.
Each plaintiff alleged that they developed pure mental harm after suspecting and then becoming aware that they, or a patient who was a relative, had been underdosed by SVH, with a risk that life expectancy may have been shortened and that cancer may have relapsed.

Background

The administration of chemotherapy requires a careful balance between the anti-cancer effect that is sought and the associated side-effects.
Treatment protocols for chemotherapy are based on the best available published evidence from clinical trials. Each protocol describes: the treatment schedule; any tests required before, during and after treatment; possible side-effects; and situations when it may be appropriate to change doses, dose intervals or choose another chemotherapy protocol altogether.
The dose of chemotherapy drugs is most often personalised to an individual by calculating the dose for the person's body surface area (BSA), using height and weight variables.
Cisplatin is a chemotherapy drug administered every three weeks in the setting of radiotherapy for head and neck cancers, with the aim of giving three doses (cycles) at the same time as the radiotherapy. Carboplatin is another chemotherapy drug which has the same aims.
There is a consensus view that the initial dose of a drug can vary upwards or downwards by up to 25% depending on the patient's specific clinical circumstances.
Flat-dosing (prescribing the same dose regardless of a patient's personal characteristics) of Carboplatin is off-protocol and not supported by evidence. Deviation from the protocol requires a prescribing medical oncologist to provide evidence or to do a prospective study overseen by a Human Research Ethics Committee. The onus is on the practitioner, who is not using the best available evidence, to demonstrate that they are not causing any more harm and that the outcomes are at least as good.
The eviQ protocols are recognised as providing health professionals with current evidence-based and peer-reviewed best practice cancer treatment protocols and treatment information. All eviQ protocols are reviewed regularly to ensure content is updated with the latest available evidence.
The eviQ protocols were adopted as policy by SVH in 2009.
It would be expected that, on a population basis, a failure to adhere to protocols puts every person treated at risk of higher rates of cancer recurrence and higher overall mortality. This does not translate to a quantifiable change in a particular individual's risk for recurrence or death. A proportion of people with head and neck cancers are frail, with widespread disease, so that death is a likely outcome from the time of diagnosis.
A small number of patients were treated by a staff specialist oncologist at SVH with off-protocol flat-dose 100mg Carboplatin between 2006 and 2010. A larger number were treated by that oncologist in the years 2012 to 2016. Off-protocol flat-dose 100mg Carboplatin was used to treat 129 patients between January 2006 and February 2016. Of those patients, 103 were treated for a head and neck cancer. The other 26 people were treated for a range of different cancers.
The above summary of background facts has been taken from reports of inquiries conducted under s 122 of the Health Services Act 1997 (NSW), which were put into evidence. The defendant SVH fully participated in the conduct of the inquiries leading to those reports and accepted the accuracy of the facts set out in the reports. At the present interlocutory level, there is no dispute with any of the facts summarised above and I assume them to be correct for the purpose of determining these Motions.
Further background facts are found in the report of a Select Committee of the NSW Legislative Council, established to inquire into and report on off-protocol prescribing of chemotherapy in New South Wales including at SVH. This report was also put into evidence. The Select Committee considered not only Cisplatin and Carboplatin, but also the chemotherapy drug Capecitabine. This is an oral chemotherapy drug for use in adjuvant chemotherapy for colorectal cancer. It is also used in the treatment of metastatic colorectal and breast cancers. Capecitabine doses are calculated using BSA.
The report of the Select Committee recited the opinion of Professor Currow (a co-leader of the s 122 inquiry) concerning off-protocol flat-dosing of chemotherapy patients at SVH. Professor Currow is the Chief Cancer Officer and Chief Executive of the Cancer Institute NSW. He advised the Select Committee that the view of the expert panel that advised the s 122 inquiry was: "Very simply and consistently that this was off-protocol. This was so divorced, from the evidence… this was off the radar."
Professor Currow further noted that the external medical oncologist engaged by SVH formed the same view and advised SVH accordingly.
Dr Stephen Cooper was a radiation oncologist at Genesis Cancer Care NSW and was the Chair of the Multidisciplinary Head and Neck Unit at SVH. Speaking of the oncologist at SVH who administered the off-protocol chemotherapy drugs he said: "The sin is not to give a dose different to eviQ, but to the extent that there is a sin it is that the dose that is being prescribed is outside of the reasonable bounds of care."
Dr Cooper informed the Select Committee that he had looked through the research evidence and had concluded that the oncologist at SVH who administered off-protocol chemotherapy "was not within the bounds of reasonable care because there was insufficient evidence to support it as a standard practice".

The Patients and the Plaintiffs

I set out below the background facts in relation to each patient, and their relationship to each plaintiff who claims damages for pure mental harm said to arise from learning of the off-protocol underdosing of a relative. I also set out whether each patient has died (and their date of death) or is still alive, as these are matters relevant to the submissions made for SVH.

Tammy Harman

Tammy Harman was treated at SVH in relation to head and neck cancer in 2015 and 2016. She was underdosed with Carboplatin. She died on 23 June 2016. The claimants in relation to Tammy Harman are her sister Lynda Peter and her daughter Bianca Harman.

Harry Grey

Harry Grey was treated as SVH for head and neck cancer in 2014. He was underdosed with Carboplatin. He died on 11 August 2015. The first claimant in relation to Harry Grey is Sharon Grey, who is the wife of Harry Grey. The second claimant was Lynda Grey, who was the daughter of Harry Grey. Lynda Grey has since died and at the commencement of the hearing of the Motions I made an order that Sharon Grey be appointed to represent the estate of the late Lynda Grey.

William Hasthorpe

William Hasthorpe was treated at SVH for head and neck cancer in 2010. He was underdosed with Carboplatin. He died on 14 December 2010. The claimant in relation to William Hasthorpe is his wife Jane Hasthorpe.

Cheryl Cowan

Cheryl Cowan was treated at SVH for head and neck cancer in 2013 and 2014. She was underdosed with Carboplatin. She died on 16 October 2014. The claimants in relation to Cheryl Cowan are her husband David Cowan and her daughter Jessica McKenzie.

Dennis Pettit

Dennis Pettit was treated at SVH for head and neck cancer in 2012. He was underdosed with Carboplatin. He is still alive. He makes his own claim for pure mental harm.

Raymond Barlow

Raymond Barlow was treated at SVH for head and neck cancer in May 2014. He was underdosed with Carboplatin. He is still alive. He makes his own claim for pure mental harm.

Adele Webb

Adele Webb was treated at SVH for rectal cancer in 2008. She was underdosed with Capecitabine. She died on 6 May 2010. There are five claimants in relation to Adele Webb. Toby Webb and Dallas Webb are sons of Adele Webb. Janine Hird is a sister of Adele Webb. Michelle Miller is a person to whom Adele Webb arguably stood "in loco parentis". She also claims to be the stepdaughter of Adele Webb. Allana Kemp is a niece of Adele Webb.

Peter Willis

Peter Willis was treated at SVH in 2008 for rectal cancer. He was underdosed with Capecitabine. He died on 29 March 2009. The claimant in relation to Peter Willis is his daughter Melody-Jane Willis.

Letters sent by SVH to each patient or family

In March 2016 SVH sent a letter to each patient who had been underdosed, or in the case of patients who had already died, sent a letter to their family. These letters were put into evidence. They were all in similar terms.
The letter was in relation to the outcome of investigations into the administration of a chemotherapy drug at SVH. The letter recited the particular drug received by the patient and the particular cancer for which the chemotherapy drug was administered. Each letter said that investigations had shown that a number of patients had received a different dosing protocol of a chemotherapy drug than the recommended guidelines.
The letter stated that SVH took the matter very seriously and as a consequence had updated its processes "to ensure the highest possible safeguards to our patients". The letter offered support and the opportunity to discuss anything arising from the letter. Each letter said that the Hospital was sorry for distress caused.
The relevance of these letters is that they demonstrate that by March 2016 SVH had concluded its investigations into the underdosing and knew that patients had received a different dosing to that recommended by the eviQ protocol.

Causation of Pure Mental Harm and Damages

In each case the plaintiff has served an expert report of Mr Greg Anning, a consultant psychologist, which complies with the Expert Witness Code of Conduct mandated by the UCPR. Each report set out the history given to Mr Anning, recorded his findings upon a mental state examination of the plaintiff, referred to tests administered by Mr Anning and reviewed the medical documentation relating to that particular plaintiff.
Mr Anning was asked for his opinion upon the following issue: "Your assessment including your diagnosis of whether the Plaintiff has received a recognised psychiatric illness caused by or materially contributed to by the circumstances of underdosing."
In each case Mr Anning set out his opinion on that question by reference to whether the plaintiff met the criteria for a DSM-5 diagnosis. In each case he expressed a conclusion that the plaintiff's current emotional state had been materially contributed to by becoming aware of underdosing during treatment at SVH.
These reports were not served with the Statement of Claim but were served later. At this interlocutory level, those expert reports include opinions supporting the general nature and extent of damage alleged and the causal relationship alleged between a breach of duty and the damage alleged.

Mental Harm

The claims brought by each plaintiff are governed by the CLA. Part 3 of the CLA deals with "Mental Harm". In s 27 of the CLA the phrase "mental harm" means "impairment of a person's mental condition". The definitions in s 27 of the CLA distinguish between "consequential mental harm" and "pure mental harm". Consequential mental harm is defined to mean "mental harm that is a consequence of a personal injury of any other kind". The classic example is that given in submissions by counsel for the defendant, of a person who suffers a broken leg, but who also suffers emotional and psychiatric consequences caused by the pain and suffering resulting from the organic injury. These proceedings do not concern consequential mental harm.
Section 27 of the CLA defines "pure mental harm" to mean "mental harm other than consequential mental harm". The allegation pleaded in each case is that the plaintiff has suffered pure mental harm as a consequence of learning about, and ruminating upon, the underdosing of themselves or a relative by SVH.
Part 3 of the CLA applies to any claim for damages for mental harm resulting from negligence - s 28(1). The claim brought by each plaintiff is such a claim.
Section 30 of the CLA is headed "Limitation on recovery for pure mental harm arising from shock". Section 30 provides as follows: "30 Limitation on recovery for pure mental harm arising from shock (1) This section applies to the liability of a person ('the defendant') for pure mental harm to a person ('the plaintiff') arising wholly or partly from mental or nervous shock in connection with another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless - (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim. (3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim. (4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law. (5) In this section-- 'close member of the family' of a victim means-- (a) a parent of the victim or other person with parental responsibility for the victim, or (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim. 'spouse or partner' means - (a) the person to whom the victim is legally married (including the husband or wife of the victim), or (b) a de facto partner, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify."
Section 31 of the CLA provides: "There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness."
Section 32 of the CLA is entitled "Mental Harm - Duty of Care". Section 32 provides as follows: "32 Mental harm--duty of care (1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following-- (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."
Section 33 of the CLA has no application to the present proceedings, as it concerns liability for economic loss for consequential mental harm. That is not the basis of the claim brought by each plaintiff.

Do the plaintiffs have a reasonable cause of action?

As a matter of logic this question, raised by the defendant's Motions, should be determined first. If the plaintiffs do not have a reasonable cause of action, then the proceedings should be dismissed pursuant to r 13.4(1)(b) of the UCPR which provides: "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: … (b) no reasonable cause of action is disclosed … the court may order that the proceedings be dismissed generally or in relation to that claim."
Counsel for the defendant accepted that SVH bore a heavy burden. In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, the High Court said that proceedings should not be summarily dismissed unless the cause of action is "so obviously untenable that it cannot possibly succeed; manifestly groundless; so manifestly faulty that it does not admit of argument; or discloses a case which the Court is satisfied cannot succeed".
Counsel for the defendant submitted (MFI 2) as follows: "25. The plaintiffs acknowledge that they cannot prove that any of the patients suffered injury or death as a consequence of the allegedly negligent off-protocol flat-dosing. Rather, the plaintiffs put their claims on the basis that through learning of the off-protocol flat-dosing and pondering 'what ifs' associated with it, they have experienced 'irradicable existential uncertainty'. Further, they argue that such 'irradicable existential uncertainty' arises from each of the relevant patients being put in peril by the off-protocol flat-dosing. 26. For the reasons set out below, including by reference to the different categories of case brought, the defendant maintains that the proceedings can't succeed as they assert liability in a cause of action which is not recognised at law."
The reference in this submission to the different categories is a reference to the division of the various plaintiffs by the defendant into the following classes: 1. Patients who were themselves treated with chemotherapy and who remain alive (Raymond Barlow and Denis Pettit). 2. Proceedings by close family members of a deceased patient, where the patient died after the plaintiff became aware of the allegedly negligent off-protocol flat-dosing (Lynda Peter and Bianca Harman). 3. Proceedings maintained by plaintiffs who are not close family members of a deceased patient and where the patient died before the plaintiffs became aware of the off-protocol flat-dosing (Michelle Miller and Allana Kemp). 4. Proceedings maintained by plaintiffs who are close family members of the deceased patient and where the patient died before the plaintiffs became aware of the off-protocol flat-dosing (Sharon Grey, Lynda Grey, Tony Webb, Dallas Webb, Janine Hird, Melody-Jane Willis, Julie Hasthorpe, David Cowan and Jessica McKenzie).

Raymond Barlow and Denis Pettit have a reasonable cause of action

The defendant did not submit that the two proceedings brought by the patients who were still alive (Raymond Barlow and Denis Pettit) did not disclose a reasonable cause of action. Both of those plaintiffs were themselves underdosed during treatment at SVH and both alleged that they had suffered mental harm as a consequence of what they assert was negligent treatment by SVH. They do not fall into the so-called "bystander" category which is subject to the limitations in s 30 of the CLA. The allegation is that they have themselves been put in peril by an act or omission of the defendant and as a result they have suffered mental harm.

Put in peril

In relation to the other three classes of plaintiffs, their claims are governed by s 30 of the CLA.
Each plaintiff alleges that they have suffered pure mental harm arising wholly or partly from mental or nervous shock in connection with a relative being "put in peril by the act or omission of the defendant" - s 30(1) CLA. As previously recited, the general population of chemotherapy patients was put at risk by underdosing, but it cannot be established whether or not any particular patient had a worse outcome because of such treatment. Thus the plaintiffs cannot show that their pure mental harm has arisen in connection with a relative being killed or injured. However, each plaintiff pleads that their relative was put in peril by the negligent treatment given by SVH.
In Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60, the High Court considered a claim for damages brought by two police officers who attended the scene of a passenger train derailment in which passengers were injured and killed. Each police officer sued the railway operator in negligence for psychiatric injuries arising from mental or nervous shock suffered as a result of attending the scene and what was witnessed there.
At [50]-[51] the High Court said that the expression "being… put in peril" should not be given a meaning more restricted than that conveyed by the ordinary meaning of the words used. It said that a person is put in peril when put at risk. The person remains in peril until the person ceases to be at risk. Thus the survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. The two police officers witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of the rail operator.
Having regard to the unchallenged findings of the inquiries, the increased risk of the recurrence of cancer and the increased risk of a shortened life expectancy mean that it is arguable that each patient who was underdosed by SVH was put in peril by an act or omission of SVH. Protocols based upon best evidence exist for a reason. They give the patient the best chance of a better outcome. Not following the protocols clearly gives the patient less of a chance of cure or survival. Each and every person underdosed by SVH was put in peril of such worse outcome.
I find that each of the plaintiffs arguably satisfies s 30(1) of the CLA, in that each has pleaded a cause of action permitted by that sub-section - the allegation is that each suffered pure mental harm arising wholly or partly from mental or nervous shock in connection with a relative being put in peril by the act or omission of the defendant.

Limitation on recovery for pure mental harm

The plaintiffs, apart from Raymond Barlow and Denis Pettit, then have to satisfy the requirements of s 30(2) of the CLA. A plaintiff is not entitled to recover damages for pure mental harm unless: 1. the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or 2. the plaintiff is a close member of the family of the victim.
I will deal below with a separate argument as to whether Michelle Miller and Allana Kemp are close members of the family of the victim. For the limited purpose of considering s 30(2) of the CLA, I will assume for the moment that all of the plaintiffs fall within the definition of "close member of the family".
Counsel for the defendant firstly submitted that s 30 only applies in respect of "bystander" cases. He cited the commentary to s 30 in Villa, Annotated Civil Liability Act 2002 (NSW), Third Edition, Thomson Reuters. The learned author there said: "Section 30 only applies in relation to what are usually described as 'bystander' cases - where the defendant, by negligently killing, injuring or imperilling the victim, has caused 'mental or nervous shock' to a close family member of the victim, or a person who witnessed the incident."
Counsel for the defendant submitted (MFI 2, par 27): "In other words, irrespective of whether an individual plaintiff falls into the sub-category of a close family member or a person who witnessed at the scene, the victim being killed, injured or put in peril, there must nonetheless be a relevant event involving a scene at which a victim is killed, injured or put in peril (even if the plaintiff who is a close family member does not need to have been present at it)."
I do not read the commentary by Mr Villa in the same restrictive way as that put forward by counsel for the defendant. While Mr Villa refers to s 30 cases as "bystander" cases, the balance of the sentence makes it plain that such cases arise where the defendant has negligently killed, injured or imperilled a victim, and this has caused mental or nervous shock "to a close family member of the victim, or a person who witnessed the incident" (underlining added). The learned author recognises that the plain words of s 30(2) prescribe two categories of people who may claim for pure mental harm arising from shock. Either a plaintiff is a close member of the family of the victim or they are not a close member of the family of the victim but they witnessed, at the scene, the victim being killed, injured or put in peril.
That the learned author recognised the two different categories is made plain by his commentary at p 457 which reads: "Where the plaintiff is not a close family member of the victim, the plaintiff can only recover damages for pure mental harm if they witnessed, at the scene, the victim being killed, injured or imperilled: s 30(2)."
The construction of s 30(2) put forward by counsel for the defendant does not flow from a reading of the words of the sub-section.
Counsel for the defendant submitted that even though a close family member did not have to be present as a witness at the scene, there had to be "a relevant event involving a scene at which a victim is killed, injured or put in peril".
Why that additional gloss, or those additional words, need to be read into s 30(2)(b) is not apparent. If Parliament had intended to limit the right of a close family member to claim for nervous shock, in the fashion put forward by counsel for the defendant, it could have inserted additional words in s 30(2)(b). It did not do so.
It is certainly necessary for a plaintiff to show that their mental and nervous shock has arisen "in connection with" the victim being put in peril. They are the words of s 30(1). However, the phrase "at the scene" does not appear in s 30(1) and does not appear in s 30(2)(b). Clearly enough, the requirement for a plaintiff to have witnessed, at the scene, the victim being killed, injured or put in peril, is a limitation imposed by the legislature on anyone other than a close member of the family of the victim recovering damages for nervous shock. For example, the two police officers in Wicks were not family members of the victims of the train derailment, but nevertheless witnessed, at the scene, those victims being killed, injured or put in peril. The very fact that close members of the family of the victim are placed into a separate category, is a clear indication that those family members do not have to prove that there was a "scene" where the victim was being put in peril.
If I am wrong in that conclusion, then there was as a matter of fact a "scene" when each patient was put in peril. It was the occasions when treatment was administered by SVH to each patient when they were underdosed, time and again, by the treating oncologist, for whom SVH is vicariously liable. The submission of counsel for the defendant acknowledges that the family members did not have to witness this scene; rather his submission was that there had to be a scene. As a matter of fact, there was.

Learning of the victim being put in peril after death of the victim

Counsel for the defendant submitted that the class of plaintiffs who were close family members of the patient and who only learned of the negligent off-protocol flat-dosing after the death of the patient cannot succeed as they do not have a reasonable cause of action. The submission was put as follows (MFI 2): "32. With respect, in circumstances where (noting that the plaintiffs do not rely on any alleged injury to the patients or their death as part of their cause of action) the period of imperilling must have come to an end at the date of death."
That must logically be so. However, what each plaintiff has to show is that they have suffered pure mental harm arising wholly or partly from mental or nervous shock in connection with the victim being put in peril by the act or omission of the defendant - s 30(1). There is nothing in the legislation to suggest that the mental or nervous shock must arise at the time that the victim is put in peril. Common human experience is that after a person finds out about a traumatic event which has happened to a relative, be it a death, or an injury, or the relative being put in peril, there is a mental reaction. It might only be concern or relief or worry, but in some cases it can result in a person suffering a psychiatric illness through learning of the threat to the relative, some time after the event.
Examples are bound in the cases of successful plaintiffs who have recovered damages for pure mental harm when their knowledge of a victim being killed, injured or put in peril has only arisen after the event (or the "scene", to adopt the formulation of the defendant). For example, in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, Mrs Coffey was at home when her husband was severely injured in a motor vehicle collision. She was not present at the scene of the accident. She came to the hospital room during the period of the immediate post-accident treatment of her injured husband. Mr Coffey was not killed in the accident, but he was injured and put in peril. The exposure of Mrs Coffey to the harm done to her husband was after the scene where he was injured and put in peril.
In Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317, a 16 year old jackaroo worked on the defendant's cattle station in Western Australia. He was sent to work alone as a caretaker at a remote location. His parents were informed that he was missing in the desert. His remains were found five months after he had died from hypothermia, which had taken his life within days of his disappearance. His parents each developed a psychiatric injury, after the disappearance and death of their son. On the argument put forward by counsel for the defendant in this case, the parents would have been disentitled from recovery.
In Sorbello v South Western Sydney Local Health Network; Sultan v South Western Sydney Local Health Network [2016] NSWSC 863; [2016] Aust Torts Reports 82-284, the parents of a baby sought damages for nervous shock. Their son was profoundly disabled, had a significantly shortened life expectancy and required lifetime care. He suffered severe injury as a result of oxygen deprivation during his birth at a hospital. The parents did not know this until two months after the birth. They successfully obtained damages for nervous shock.
In Stephenson v Parkes Shire Council (No 2) [2015] NSWSC 719; [2015] Aust Torts Reports 82-226, three people died in a helicopter crash. The widow of a man killed in the accident recovered damages for her depressive reaction following her husband's death. She learned of the crash and his death by a telephone call after the accident. If the argument put forward by counsel for the defendant is correct, then she could not have recovered damages.
I reject the submission of counsel for the defendant that the class of plaintiffs who learned of the underdosing after the death of the patient have no reasonable cause of action.

Learning of the victim being put in peril, and victim still alive

The submission was made, rather more faintly, that the plaintiffs who learned of the underdosing but whose relatives were still alive could also not recover. In relation to this class of plaintiffs, the submission was that there was "no scene at which a relevant event of imperilling occurred", so that the actions must fail. I have already rejected that submission for reasons set out above. I find that the plaintiffs who learned of the underdosing and whose relatives are still alive have a reasonable cause of action which has been pleaded.

Close family members

That leaves the fourth class of plaintiffs, which the defendant submits are not close members of the family of the victim.
Allana Kemp is a niece of Adele Webb. She does not fall within the definition of a "close member of the family of a victim" in s 30(5) of the CLA. On the face of it she has no reasonable cause of action for pure mental harm arising from shock, as she is not entitled to recover damages for pure mental harm because she is not a close member of the family of the victim - s 30(2)(b).
Counsel for the plaintiff submitted that Allana Kemp fell within the words of s 30(2)(a) of the CLA. He submitted that Allana Kemp witnessed, at the scene, the victim being put in peril.
The requirement in s 30(2)(a) is not satisfied just because someone witnesses the scene where a person is put in peril. Even if Allana Kemp had been sitting with Adele Webb as her chemotherapy was administered, while she might arguably be at the scene, and at that scene Adele Kemp was put in peril (unbeknown to her or to Allana Kemp), it could not be said that Allana Kemp had "witnessed, at the scene, the victim being… put in peril". Allana Kemp did not know and could not have realised that her aunt was being put in peril by the chemotherapy.
The whole notion of nervous shock in a true "bystander" case, involves not just presence at a scene where a victim is put in peril, but a perception that the victim has been put in peril. The High Court decision in Wicks, referred to above, is a classic case where rescuers attended at a scene and saw persons who had been killed, injured or put in peril. It is the sudden insult to the psyche which arises from the perception of danger to a victim which entitles a person to claim damages for pure mental harm, if they are not a close member of the family of the victim. It is not enough to witness a scene where the victim is put in peril, when that is not perceived at the time. Section 30(2)(a) requires the plaintiff to witness the victim being put in peril. In the textbook referred to above, Mr Villa says at p 457: "The requirement that the plaintiff be present at the scene and witnessed the accident is more restrictive than the existing common law position which allowed a plaintiff to recover where they witnessed the immediate aftermath of an accident. The aftermath doctrine no longer has any relevance to the law relating to the recovery of damages for pure mental harm in bystander cases. The rejection of the aftermath doctrine will have little if any effect on the recovery of damages by members of the victim's family, for whom there is no requirement that they witness, at the scene, the accident. However, witnessing the aftermath is now insufficient for recovery by others with close ties of affection to the victim, but are not close family members, who might otherwise have been entitled to recover under the general law."
I accept this as a correct statement of principle.
Further, s 30(1), which imposes a limitation on recovery for pure mental harm, imposes that limitation on pure mental harm "arising wholly or partly from mental or nervous shock" in connection with another person being put in peril. In Wicks, the High Court said at [30]: "The phrase 'mental or nervous shock' (as used in both ss 29 and 30) doubtlessly has a meaning different from 'sudden shock' (the phrase used in s 32(2)(a)). The expression 'mental or nervous shock' may be understood as referring to a consequence, and 'sudden shock' may be understood as referring to an event or a cause. But the notion of 'shock', in the sense of a 'sudden and disturbing impression on the mind or feelings; usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion and tending to occasion lasting depression or loss of composure', is central to both expressions."
This definition of "shock" is said in fn 37, referred to in par [30] of Wicks, to come from the Oxford English Dictionary, Second Edition (1989) Vol xv, p 293, meaning 4a.
Having regard to that definition of "shock", the word used in the phrase "mental or nervous shock" in s 30(1), it could not be said that Allana Kemp was subject to a sudden and disturbing impression on the mind or feelings. She did not know at the time that her aunt was being put in peril by the negligent treatment given by SVH.
I find that Allana Kemp did not witness, at the scene, the victim being killed, injured or put in peril, within the meaning of s 30(2)(a) of the CLA. I find that Allana Kemp has no reasonable cause of action in her Statement of Claim, and that the proceeding should be dismissed pursuant to r 13.4.1(b) of the UCPR.
Michelle Miller is not a blood relative of Adele Webb. The Statement of Claim describes Adele Webb as the plaintiff's "late stepmother". The stepchild of a victim is within the definition of "close member of the family of a victim" in s 30(5). However, the evidence at this point casts doubt upon whether Michelle Miller was a stepchild of Adele Webb. The report of Mr Anning in relation to Michelle Miller says (MFI 3), pp 590-591: "Ms Miller presented as a woman of 44 years who left home at 14 or 15 years of age. She stayed with friends before obtaining a Department Housing bedsit at 16 years of age. She went to live with Ms Adele Webb and her two sons, Dallas and Toby, when she was 17 or 18 years of age after meeting Ms Webb at church. Despite leaving home at an early age Ms Miller was able to continue at school and complete Year 12. She then undertook a few odd jobs before marrying at 22 years of age. Ms Webb gave her away at her wedding. Ms Miller completed a nursing degree and currently works as a primary Aboriginal health care practitioner at the Aboriginal Health Service at Port Macquarie. She has live at Laurieton for the past 13 to 14 years and has 5 children aged from 9 years to 21 years. Ms Webb considered Ms Miller's children to be her grandchildren and Ms Miller's children thought of Ms Webb as their grandmother."
Ms Miller may well be able to call evidence that she is the stepchild of Adele Webb. Further, counsel for the plaintiff submitted that she falls within the definition of "close member of the family" because she is a "person for whom the victim has parental responsibility". That allegation is not presently pleaded. It should be pleaded, if that argument is to be run at the trial.
Nash v Commissioner for Railways (1962) 63 SR (NSW) 357 concerned a claim under the Compensation to Relatives Act 1897 (NSW). The claimant was a person to whom the deceased stood "in loco parentis". The court held that this encompassed types of parenthood beyond blood ties, marriage or adoption. It included a foster parent and a foster child or a de facto incorporation into a family.
In s 3 of the Children and Young Persons (Care and Protection) Act 1988 (NSW), the phrase "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children". This definition is incorporated by reference into the Succession Act 2006 (NSW).
It is noted that the definition of "close member of the family" in s 30(5) of the CLA, includes a person "for whom the victim has parental responsibility" (underlining added). It would be a question of fact as to whether Adele Webb had parental responsibility for Michelle Miller at a particular point in time. It would be a question of law whether that point in time was when she was put in peril, or when she died, or when the plaintiff developed her pure mental harm. The answer to those questions is not readily apparent and was not the subject of submissions.
Strictly, the pleading does disclose a reasonable cause of action for Michelle Miller, in that it pleads that she is a stepchild of Adele Webb. Further, there is an argument available, based on just on what Mr Anning says, that she was a person for whom Adele Webb had parental responsibility. I find that Michelle Miller has a reasonable cause of action disclosed in the Statement of Claim, and that her claim should not be dismissed under r 13.4(1)(b) of the UCPR.
However, the solicitors for Michelle Miller need to advise her about her prospects of success in these proceedings. If the plaintiff cannot establish the facts to prove that she satisfies the definition of a "close family member", then these proceedings should not continue, as a costs order may be incurred for which Michelle Miller will have a personal liability.

Application to strike out pleadings

The defendant sought an order pursuant to r 14.28(1)(a) of the UCPR which provides: "The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading."
Counsel for the defendant drew attention to the failure of the present form of each Statement of Claim to plead the matters required by s 5B of the CLA. Section 5B headed "General Principles" provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Counsel for the defendant pointed out, to take as an example the Amended Statement of Claim of Sharon Grey, that it pleaded in par 13 that the defendant owed Sharon Grey a duty of care to treat her late husband with due care and skill, as it was reasonably foreseeable that if SVH negligently treated Harry Grey for cancer, Sharon Grey might develop pure mental harm caused by psychological trauma as to whether Harry Grey would still be alive and/or would have lived longer and/or would have remained in good health for longer, if SVH had treated him without negligence. Counsel for the defendant pointed out that par 20 of the Amended Statement of Claim pleaded the matters required to be addressed by s 5B(1) of the CLA, but pleaded those matters in relation to negligence in relation to the treatment of Harry Grey. It was submitted that what was required, in addition, was a paragraph in the pleading which set out the matters relevant to s 5B(1), not in relation to a breach of duty of care towards Harry Grey, but in relation to the breach of duty of care said to be owed to Sharon Grey.
Once this point was made, counsel for the plaintiffs very sensibly conceded that the Statement of Claim in each matter required amendment to add a suitable paragraph pleading the elements of s 5B in relation to the duty of care owed to the plaintiff, and not to the plaintiff's relative, the patient.
I propose to grant leave to each plaintiff to amend his or her Statement of Claim within 28 days.
In the sense that each Statement of Claim requires amendment, because there is a gap in the pleading, each Statement of Claim is defective. However, each Statement of Claim does disclose a reasonable cause of action and simply requires to be amended, rather than struck out. That was very sensibly conceded by counsel for the defendant in final submissions.

Rule 31.36 UCPR and failure to serve an expert's report

Rule 31.36(1) UCPR provides as follows: "(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting - (a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged."
Rule 31.36(3) UCPR provides that if a party fails to comply with subr (1), the court may by order dismiss the whole or any part of the proceedings.
The reference to the service of an expert's report, with the Statement of Claim, is a reference to a report in the form required by the UCPR. This includes compliance with the Expert Witness Code of Conduct.
The defendant moved for a dismissal of the proceedings because no such report had been served with the Statement of Claim. The plaintiffs asked the court to dispense with the obligation placed on the plaintiff to file an expert report, relying upon the opening words of r 31.36(1) of the UCPR, being "unless the court orders otherwise".
In the alternative, the plaintiffs sought an order that they be deemed to have satisfied the obligation to serve such a report, because they had served upon the defendant three reports of inquiries conducted under s 122 of the Health Services Act 1997 (NSW), the report of the Select Committee of the Legislative Council referred to above, and the letters sent by SVH to the patients or family members advising of the underdosing.
The Court of Appeal considered the scope and operation of the Rule in Salzke v Khoury [2009] NSWCA 195; [2009] 74 NSWLR 580. This was an appeal from the decision of the Judicial Registrar of the District Court, who had dismissed the plaintiff's claim for non-compliance with the Rule.
The Court of Appeal noted that the Rule requires the expert's report to include an opinion supporting the breach of duty of care alleged against the defendant sued for professional negligence. A report served to comply with r 31.36 of the UCPR was not evidence and did not have to prove the matter asserted. It merely had to support it.
Justice Ipp said at [94]: "A principal purpose of UCPR 31.36 is to ensure that the case gets to trial with both parties fairly apprised of the nature of each other's case at the earliest reasonable opportunity. A practical approach should be taken. I do not intend to convey the impression that the failure by Ms Salzke to provide medical reports dealing with the nature of her injuries was trivial. But, practically speaking, I do not think that the omission to provide those reports at the stage the Registrar was dealing with the matter caused the respondents any prejudice. I would add that, in dismissing Ms Salzke's action, the Registrar failed to use her powers in a 'proportional' way and did not bear in mind that the dismissal of an action is 'an extreme measure to be taken as a last resort': Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [46] per Allsop P and [52] per Young JA."
Justice Basten also commented upon the apparent purpose of the Rule. At [117] his Honour referred to the report which had led to the introduction of a similar rule in England and Wales. Some of the factors leading to the Rule were: "(a) The disproportion between costs and damages in medical negligence is particularly excessive, especially in lower value cases. (b) The delay in resolving claims is more often unacceptable. (c) Unmeritorious cases are often pursued, and clear-cut claims defended, for too long. (d) The success rate is lower than in other personal injury litigation. (e) The suspicion between the parties is more intense and the lack of co-operation frequently greater than in many other areas of litigation."
At [123] Justice Basten said: "This understanding of the Rule does not support a view that the filing and serving of expert reports supporting the claims with respect to breach of duty of care, the general nature and extent of damage, and the causal relationship between breach and damage, is a mere formality. However, questions of compliance must take into account, for example, the consideration noted by Lord Woolf that early expenditure on the quantification of damage may well be unjustifiable. Similarly, they should take into account the acknowledged difficulties and delays likely to be faced by a plaintiff seeking to obtain such reports. Accordingly, the relevant opinions should not be scrutinized too finely in an attempt to demonstrate that they do not satisfy the Rule. A Rule designed to diminish the number of cases being commenced which have no reasonable prospects of success should not be turned into an unreasonable hurdle to be surmounted by plaintiffs with legitimate claims. Nor should such a rule provide a further procedural opportunity for defendants (through their insurers) to delay resolution of legitimate claims on the merits, or increase the costs faced by an indigent plaintiff with a legitimate claim. The courts must be astute to ensure that procedural reforms serve their intended purpose and do not become a vehicle for subversion of a purpose they were designed to promote."
While the plaintiffs did not file any expert reports with their Statements of Claim supporting breach of duty of care, the general nature and extent of damage alleged, and the causal relationship between breach of duty and the damage alleged, counsel for the defendant sensibly and properly acknowledged that the reports of Mr Anning in each case were sufficient to provide support in relation to the general nature and extent of damage alleged and the causal relationship between breach of duty and the damage alleged. While these reports were served in breach of the Rule, the defendant no longer pressed the application to dismiss the proceedings on the basis of r 31.36(1)(b) and (c) of the UCPR. However, the defendant maintained its application for a dismissal of the proceedings because of non-compliance with the obligation under r 31.36(1)(a) of the UCPR to serve an expert report including an opinion supporting breach of duty of care.
Counsel for the defendant submitted (MFI 2, par 14) that in a professional negligence action the content of the relevant duty of care is that of the ordinary skilled person exercising and professing to have that special skill - Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 at 483.
Counsel for the defendant pointed out, quite correctly in my view, that reports prepared under s 122 of the Health Services Act 1997 are of an entirely different nature to an expert opinion required by r 31.36 of the UCPR. It was submitted that the plaintiffs should be required to demonstrate, at least at a prima facie level, that in the opinion of an expert there has been a departure from the relevant standard of care.
While the plaintiffs were undoubtedly in breach of r 31.36 of the UCPR, and are thus at risk of having all of the proceedings dismissed for breach of that Rule, there is an air of unreality about the submission made for the defendant. I have already referred to the evidence given by Professor Currow, the co-leader of the s 122 inquiry, that underdosing was off-protocol, divorced from the evidence and "off the radar". The same view was reached by the external medical oncologist engaged by SVH. Further, Dr Cooper told the Legislative Council committee that the treatment and dosing given by the oncologist staff specialist at SVH was "outside of the reasonable bounds of care". His reason for this opinion was that "there was insufficient evidence to support it as a standard practice".
As already recited, SVH accepted the findings made in the s 122 inquiry reports. Those opinions, expressed in robust terms, make it plain to the defendant the content of the relevant duty of care and the breach of relevant duty which occurred. SVH could be under no illusions about the plaintiffs' case on breach of duty of care.
Having regard to the consideration by Justice Ipp and Justice Basten of the purposes of r 31.36 of the UCPR in the Salzke decision, I find that the defendant is fairly apprised of the nature of the plaintiffs' case in relation to breach of duty of care. Having regard to the strength of the views presented by highly qualified medical specialists, both to the s 122 inquiries and the Legislative Council, it could not be thought that the plaintiffs' claim is unmeritorious litigation, which is the kind of case that r 31.36 of the UCPR is designed to discourage. Nor could it be thought that the proceedings had been commenced without reasonable grounds for believing on the basis of provable facts and an arguable view of the law that each action has reasonable prospects of success.
I take into account that each of the claims for pure mental harm is probably unlikely to result in a very large award of damages, and it is important to have regard to proportionality of costs in imposing any further burdens upon the plaintiffs by way of formal compliance with r 31.36 of the UCPR.
Obviously if the plaintiffs had served no material in support of their claim for breach of duty of care, serious consideration would have to be given to dismissal of the actions. However, the full knowledge of the defendant concerning what occurred by way of underdosing by its staff specialist, the participation of SVH in the s 122 inquiries, and its further acceptance of the matters found by the inquiries, leads me to the view that there would be no utility in imposing any further obligation upon the plaintiffs to now file an expert's report that includes an opinion supporting the breach of duty of care alleged. To do so would force the plaintiffs to run up costs in re-inventing the wheel.
Of course, in preparation for trial, it will be absolutely essential for the plaintiffs to serve an appropriate expert report. However, they may not even need to do so, if the defendant files a Defence which makes admissions about the breach of duty of care alleged. I decline to dismiss the plaintiffs' proceedings for breach of r 31.36(1)(a) of the UCPR. I propose to order "otherwise" in accordance with the opening words of that Rule. My order will be that each plaintiff may proceed with his or her action, without compliance with r 31.36(1)(a) of the UCPR. I find that the broad discretion given to me by the opening words of the Rule means that I can make this order. Further, s 14 of the Civil Procedure Act 2005 provides: "In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case".
It has been held that this power can be exercised to dispense with the provisions of UCPR Rule 31.36 in the circumstances of the particular case - Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [11].

Costs

The defendant failed on 14 of its 15 applications to strike out the Statements of Claim pursuant to r 13.4 of the UCPR. The defendant had success on all of its applications under r 14.28 of the UCPR because of a defect in the pleadings. However, in exercising my discretion I have not struck out the Statements of Claim but have granted leave to re-plead them. The absence of one technical paragraph from each Statement of Claim is not a matter which required a Motion. This could well have been pointed out by a letter and resolved by discussion between the parties.
The defendant failed on that part of its Motion relating to r 31.36 of the UCPR. However, it did take a practical approach by abandoning that part of the Motion relating to the necessity for an expert's report supporting causation and the general nature and extent of the damage alleged. It pursued that part of the Motion relating to an opinion supporting breach of duty, in circumstances which I have described in this judgment as having an air of unreality about them.
The plaintiffs have succeeded on their Motions for an order dispensing with the obligation to file an expert's report supporting breach of duty of care. However, the plaintiffs were in breach of that Rule, and remain so until this court makes an order effectively dispensing with the obligation for the service of such an expert report.
The plaintiffs quite sensibly abandoned their application for an order excluding the costs of both Motions from the operation of Sch 1, cl 6 to the Legal Profession Uniform Law Application Act 2014 (NSW).
In the circumstances I find that the appropriate order for costs is that each party should pay his, her or its own costs of the defendant's Motions and the plaintiffs' Motions.

Orders

In the matter of Allana Kemp v St Vincent's Hospital Sydney Ltd proceedings 2019/293305: 1. The proceedings are dismissed pursuant to Rule 13.4(1(b) of the Uniform Civil Procedure Rules 2005 (NSW) on the ground that the Statement of Claim filed on 19 September 2019 does not disclose a reasonable cause of action. 2. Order the plaintiff to pay the defendant's costs of the proceedings.
In all proceedings, except the proceedings brought by Allana Kemp: 1. Grant leave to the plaintiff to amend the Statement of Claim, by filing and serving an amended pleading within 28 days of the date of these orders. 2. Otherwise dismiss the defendant's Motion. 3. Dispense with the requirement under Rule 31.36(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff to serve, with the Statement of Claim, an expert's report that includes an opinion supporting breach of duty. 4. Otherwise dismiss the plaintiff's Motion. 5. Order the defendant to pay its own costs of the defendant's Motion and the plaintiff's Motion. 6. Order the plaintiff to pay own costs of the defendant's Motion and the plaintiff's Motion.

Further conduct of the proceedings

I urge the parties to consider sending these matters to mediation sooner rather than later. From each plaintiff's point of view, these are not high value cases and there will probably be a limitation on the costs which can be recovered from the defendant. Mediation would give each plaintiff the chance to personally tell an officer of the hospital what they have gone through as a result of the treatment given to a close relative. From the defendant's point of view, it is presently difficult to see what real issues there are in each case, apart from the appropriate award of damages. Further, the defendant has its responsibilities as a "model litigant" to consider.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2020

Children and Young Persons (Care and Protection) Act 1988(NSW)

Villa, Annotated Civil Liability Act 2002(NSW)

estern Sydney Local Health Network [2016] NSWSC 863; [2016] Aust Torts Reports 82-284 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Stephenson v Parkes Shire Council (No 2) [2015] NSWSC 719; [2015] Aust Torts Reports 82-226 Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60 Texts Cited: Villa, Annotated Civil Liability Act 2002 (NSW), Third Edition, Thomson Reuters Oxford English Dictionary, Second Edition, Oxford University Press 1989 Category: Procedural and other rulings Parties: Plaintiff - 2019/00292848 Raymond Barlow

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