Barrie v Wilsmore

Catchwords: CIVIL PROCEDURE — Professional Negligence — Pleadings — Amendment — where amendments to pleading are substantial — where plaintiff seeks to add a new defendant as a party to the proceedings — where recent expert reports provide a proper evidentiary basis for the proposed amendments — where no prior expert report addresses the issues raised by the proposed amendments — where vacation of hearing required — prejudice cured by costs

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64
Uniform Civil Procedure Rules 2005 (NSW), r 1.12

Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Kelly v Mina [2014] NSWCA 9

Category: Principal judgment

Parties: Paul Barrie (Applicant)
Bradley Wilsmore (Respondent)

Representation: Counsel:
Mr S Grey (Applicant)
Ms J Sandford with Ms C Coventry (Respondent)
Solicitors:
Slater and Gordon (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2021/00263947

JUDGMENT

1. By notice of motion dated 29 September 2025 the plaintiff seeks orders:

2. for leave to rely on an expert report of Fiona Corbet, registered nurse, dated 31 August 2025;

3. for leave to file a second further amended statement of claim, in the form as proposed under cover of the plaintiff’s solicitor’s letter to the defendant dated 18 September 2025; and

4. that the plaintiff pay the defendant’s costs thrown away.

5. Counsel for the plaintiff conceded that if the orders sought in the notice of motion were made the hearing listed for 10 days commencing on 17 November 2025 would need to be vacated as a consequence.

6. The orders sought, including a vacation of the hearing dates, were opposed by the defendant.

7. The proceedings are brought by the plaintiff alleging a cause of action based on negligence against his former cardiologist. The relevant conduct occurred in August and November 2014 and in May 2018. The proceedings were commenced in September 2021 and were fixed for a hearing commencing on 17 November 2025 with a 10 day estimate on 5 July 2024.

8. The plaintiff alleges that as a result of the defendant’s negligence he was discharged from hospital prior to medical investigations being undertaken to exclude coronary artery disease and that if coronary artery disease had been properly identified, interventional procedures would have occurred either by bypass surgery or stenting to avoid the cardiac arrest which the plaintiff experienced four days after his discharge. It is alleged that as a result of the negligence of the defendant, the plaintiff suffered cardiac arrest and a hypoxic brain injury.

9. The effect of the orders sought in the present notice of motion are to further amend the statement of claim to make substantial amendments to the pleading and to add a new defendant as a party to the proceedings. The proposed new defendant, Healthe Care Lingard Pty Ltd, was the operator of the Lingard Private Hospital to which the plaintiff was admitted for cardiac monitoring on 14 and 15 May 2018. Effectively, the case proposed to be brought against the additional defendant is in the alternative to the present case pleaded against the defendant cardiologist Dr Wilsmore. The effect of the alternative case is a proposed claim that the Lingard Private Hospital received a letter of referral concerning the plaintiff’s symptoms but failed to bring that referral letter to the attention of the defendant and that the nursing staff at the Lingard Private Hospital failed to adequately document the plaintiff’s medical history and symptoms provided by the plaintiff and his wife upon admission to the coronary care unit on 14 May 2018 and failed to communicate the history and symptoms to the defendant.

Background

7. Although the plaintiff’s case against the defendant relates to events in 2014 and 2018, for the present purposes the only period relevant to consideration of the notice of motion is May 2018 which concerns his admission to Lingard Private Hospital.

8. The plaintiff’s case against the defendant includes an allegation that one week prior to his admission to hospital, the plaintiff’s general practitioner referred him to the defendant by referral letter dated 8 May 2018. It is alleged that in that referral letter the general practitioner mentioned that the plaintiff suffered from symptoms of neck pain and stated a concern that such pain could be of a cardiac origin. It is also part of the plaintiff’s pleaded case against the defendant that he presented with a history and complained of symptoms of neck pain when admitted to the Lingard Private Hospital. Expert cardiologists engaged on behalf of the plaintiff proceeded on the assumption, at least initially, that the neck pain communicated via the general practitioner’s referral letter was communicated to the defendant. The expert cardiologists did not squarely deal with whether the defendant received the referral letter or the significance of any knowledge on his part of the history and symptoms.

9. On 26 November 2024 the defendant’s evidentiary statement was served in which he stated that he was not provided with the general practitioner’s referral letter and explained that the letter would not have been accessible to him because it had been addressed to his previous practice address and may not have been in the patient’s paper file for the hospital admission.

10. On 23 July 2025 his Honour Justice Fagan dealt with a notice of motion by the plaintiff which arose from the unavailability of one of the plaintiff’s expert cardiologists. Relevant to that application, the plaintiff sought to substitute an alternative cardiologist expert for Dr Roy, who previously provided an expert report but had since become unavailable due to retirement. His Honour ordered that if the plaintiff wished to rely on an expert cardiologist in lieu of Dr Roy, he was required to file a report by the replacement expert by 3 September 2025. In addition, his Honour refused an order sought by the plaintiff to vacate the hearing listed to commence on 17 November 2025.

11. Consequent upon those orders the plaintiff served an expert report from a replacement cardiologist, Dr Alcock, dated 27 August 2025. In that report, amongst other things, Dr Alcock directly addressed what he would expect of a nurse when admitting a patient in a coronary care unit when recording and reporting any history and symptoms relevant to cardiac events, including shortness of breath and neck pain.

12. The plaintiff then obtained an expert report from a registered nurse, Fiona Corbet, dated 31 August 2025. Until the provision of that report, no other nursing expert reports had been furnished by the parties in the proceedings. The plaintiff seeks leave to rely on Registered Nurse Corbet’s report concerning her opinions about the function and importance of taking, recording and reporting appropriate history and symptoms upon admission and the clinical relevance of neck pain and shortness of breath when admitting a patient to a coronary care unit.

The plaintiff’s submissions

13. Counsel appearing for the plaintiff submitted that the breach of duty alleged against the proposed additional defendant was relatively discrete. He submitted that if the proposed amendments were refused and the notice of motion dismissed, that there was a possibility that additional proceedings might have to be brought in future against the hospital after the conclusion of the current proceedings. It was submitted that such a result was undesirable in the proper administration of justice in that separate proceedings would not assist in determining the real questions to be raised by the plaintiff and would not avoid the need for a multiplicity of proceedings. It was also argued that an issue of Anshun estoppel may arise if the plaintiff was required to institute separate proceedings against the proposed additional defendant.

14. The plaintiff through his counsel, conceded that the defendant would be inconvenienced and prejudiced if the amendments were made and conceded that a costs order against the plaintiff was appropriate. It was submitted that any inconvenience or prejudice was not incurable and that the balance of convenience weighed in favour of making the orders sought.

The defendant’s submissions

15. The defendant submitted through his counsel that the plaintiff’s solicitors have been in possession of all relevant facts for a number of years. The plaintiff’s solicitors have been in possession of the Lingard Private Hospital’s records since 9 October 2019. The defence, filed on 16 August 2022, pleaded that the defendant was not provided with the general practitioner’s referral letter in May 2018. In a subsequent amended defence, the defendant pleaded that his practice rooms did not receive any referral. The defendant submitted that the plaintiff failed to request any particulars of those parts of the defence. In relation to the history and reported symptoms, the defence filed on 8 August 2023 pleaded that the Belmont District Hospital and the Lingard Private Hospital did not document or report to the defendant any history or symptoms of atypical neck pain or arm discomfort on 14 or 15 May 2018. In an answer to interrogatories on 27 June 2024 the defendant stated that he did not review the general practitioner’s referral letter at any time before his consultation with the plaintiff on 15 May 2018. In his evidentiary statement dated 26 November 2024 the defendant stated that the general practitioner who authored the referral letter was not known to him in 2018 and that he had not seen the referral letter until it was first shown to him during the course of preparing for the proceedings. The defendant also stated that his letter of 15 May 2018, reporting on the events relating to the plaintiff’s admission to hospital, were addressed to a different doctor who he understood was the plaintiff’s general practitioner and stated that he would not have sent the letter to that general practitioner if he had been aware that a referral letter had been sent by a different doctor.

16. It was submitted on behalf of the defendant that the orders sought in the notice of motion should not be made and that allowing such significant amendments 6 weeks prior to a 10 day trial fixture was inimical to the overriding purposes of the rules of court.

17. On the issue of prejudice the defendant submitted that in addition to wasted costs the proposed orders would have a significant impact on public health because the defendant had already made arrangements to attend court for the hearing in November 2025 which included cancelling arrangements for procedures and clinics which he would otherwise have conducted during that period and making alternative arrangements for his patients to receive adequate care in his absence. It was also submitted that the Court should take into account that the defendant practised in Newcastle where replacement specialists and alternative appointments were less readily available than they would in Sydney.

Consideration

18. The power to order amendments of pleadings or other documents in proceedings is found in s 64 of the C**ivil P**rocedure A**ct 2005 (NSW) which provides:

64 Amendment of documents generally

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3)An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to s 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

19. The reference in s 64 to that section being subject to s 58 requires consideration of the dictates of justice. Section 58 requires a court when making an order or direction for the management of proceedings, including for an amendment or an adjournment, to act in accordance with the dictates of justice. In determining what the dictates of justice are in a particular case, the Court is to take into account the complexity of the issues in the proceedings, the degree of expedition with which the parties have acted, the degree of any lack of expedition arising from circumstances beyond the control of the parties, the degree to which the parties have fulfilled their duties to assist the Court and comply with directions and orders, the use any party has made of opportunities available, the degree of injustice which would be suffered as a consequence of any order or direction or such other matters as the Court considers relevant in the circumstances.

20. Section 56 of the C**ivil P**rocedure A**ct, amongst other things, states that the overriding purpose of the Act and the rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court must give effect to that overriding purpose when exercising any power given by the C**ivil P**rocedure A**ct or the rules of court.

21. Section 57 of the Act, which sets out the objects of case management, provides for the purpose of furthering the overriding purpose set out in s 56 that courts are to be managed having regard to the object of just determination of the proceedings, efficient disposal of the business of the court, efficient use of available judicial and administrative resources and the timely disposal of proceedings at a cost affordable by the respective parties.

22. Those statutory considerations have been considered by a number of authorities. As was stated by the Court of Appeal in Kelly v Mina [2014] NSWCA 9 at [47] the Court is bound to seek to act in accordance with the dictates of justice and the overriding purpose of the C**ivil P**rocedure A**ct and, in addition, in considering a proposed amendment application, the Court was required to take into account the combination of factors identified by the High Court in Aon Risk S**ervices Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Those factors require the Court to consider whether there will be substantial delay caused by a proposed amendment, the extent of wasted costs incurred, whether any prejudice will be unfair or irreparable which cannot be adequately compensated for by a costs award, concerns of case management, the impact of lessening public confidence in the judicial system and whether a satisfactory explanation has been given for the seeking of an amendment at the stage when it was sought.

23. The affidavit evidence relied on by the plaintiff in support of the notice of motion explains that the plaintiff’s legal representatives did not appreciate until the defendant’s evidentiary statement was served on 26 November 2024 that the defendant claimed to have not received the referral letter because the defendant had changed his rooms and the letter was addressed to a previous address. Although the plaintiff’s lawyers ought to have appreciated from the terms of the defence and the answers to interrogatories that the defendant was denying receipt of the referral letter, I accept that it was not until in November 2024 when clearly stated in the evidentiary statement, that the plaintiff’s lawyers fully understood that the defendant asserted that he had never received the referral letter because of a change of his practice address. I accept that the problem was compounded by the unavailability of Dr Roy as an expert cardiologist and that it was not until his replacement, Dr Alcock, directly addressed for the first time the issue as to what a consultant cardiologist would expect from a registered nurse that the plaintiff’s lawyers then obtained an expert opinion from Ms Corbet. The replacement expert report from Dr Alcock was not received until 27 August 2025 and the report from Registered Nurse Corbet was not received until 31 August 2025.

24. The plaintiff’s solicitors could have acted with greater urgency (for example by seeking further and better particulars of the defence or asking further interrogatories). They did not. However, despite that lack of urgency I am satisfied that it was not until receipt of the recent expert reports that a proper evidentiary basis was established for the proposed amendments or the proposed addition of a defendant.

25. I am satisfied that the proposed amendments are necessary for the purpose of determining the real questions to be raised in the proceedings including what, if any, history and symptoms were reported by the admitting nurse to the defendant and what, if any, history and symptoms were reported by the general practitioner to the defendant. I am also satisfied that the proposed amendments are necessary in order to avoid a multiplicity of proceedings. I am not satisfied, however, that any issue of Anshun estoppel would arise if the plaintiff was unsuccessful in the present notice of motion and was required to institute separate proceedings against the hospital. However, because I propose to allow the orders sought, the issue will not arise.

26. In reaching this conclusion I have taken into account the overriding purposes of the C**ivil P**rocedure A**ct, the dictates of justice set out in ss 56 and 58 and the objects of case management set out in s 57.

27. In my view, if the orders sought were not made, the objects of case management would be defeated in that there would not be a just determination or an efficient disposal of the proceedings and judicial administrative resources would not be used efficiently in the disposal of the issues to be raised by the plaintiff. Requiring the plaintiff to institute two separate proceedings arising from the same hospital admission in 2018 would not facilitate the just, quick and cheap resolution of the real issues to be raised and would not give effect to the interests of justice.

28. Accordingly, I make the following orders:

29. grant leave to the plaintiff to file by 17 October 2025 a second further amended statement of claim in the form as proposed under cover of the plaintiff’s solicitor’s letter to the defendant dated 18 September 2025;

30. grant leave to the plaintiff to rely on the expert report of Fiona Corbet, registered nurse, dated 31 August 2025 and extend time pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) for the service of that report;

31. vacate the hearing listed to commence on 17 November 2025;

32. list the matter for mention on 6 February 2026 in the professional negligence list for status review and readiness hearing with a view to the matter being listed for hearing;

33. grant the parties liberty to apply on three days notice; and

34. the plaintiff to pay the defendant’s costs thrown away.

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Amendments

13 October 2025

Amendment to representation details in coversheet