Borsato v Campbell & Ors

Keith Scott and Associates for the plaintiff/respondent

Cooper Grace Ward for third, fourth and fifth defendants/applicants

[1] McMURDO J: The question for determination is whether the plaintiff should be allowed to amend its statement of claim against the third, fourth and fifth defendants. They say that the plaintiff's amendment raises a new cause of action outside the limitation period, and that in terms of the Uniform Civil Procedure Rules 1999, r 376(4), it is not appropriate to allow the amendment because the defendants would be relevantly prejudiced. The plaintiff says that the amendment does not involve a new cause of action, so that leave is not required under r 376 and nor should the amendment be disallowed.

[2] This is a medical negligence claim which involves surgery undertaken by the plaintiff in 1988 at the Townsville General Hospital. The surgery was a Ripstein repair of the plaintiff's rectal prolapse but it also resulted, the plaintiff says, in a severance of the pre-sacral sympathetic nerve. The physical complications from that are said to have caused psychological or psychiatric problems and the plaintiff claims general damages as well as an impairment of earning capacity, resulting in an overall claim of almost one million dollars.

[3] The first defendant is a general surgeon whom the plaintiff consulted shortly prior to this operation and who advised him to undergo it. The second defendant is a company associated with the first defendant's practice which is said to be as liable as the first defendant is, for not warning the plaintiff of the risks of that surgery, and in particular the risk which eventuated.

[4] The third and fourth defendants are sued as the surgeons who performed the surgery. The fifth defendant, State of Queensland, is sued as responsible for the acts or omissions of the third and fourth defendants.

[5] These proceedings were commenced in the District Court at Townsville on 7 November 1991, within a week of the expiry of the limitation period (three years from the date of the surgery). They were commenced against the first and second defendants only and it was alleged that it was the first defendant who had not only advised the plaintiff to undergo this surgery but also had performed it. It was not until 1999 that the third, fourth and fifth defendants were sued. Over their objection they were joined on the plaintiff's application when this case was still in the District Court. It is unnecessary to discuss why the case is still not ready for trial in 2006, except to say that when Dutney J declined to strike it out last April, he described the litigation as "characterised by periods of inordinate delay, attributable almost entirely to the plaintiff or the plaintiff's side". Dutney J then identified a problem with the case pleaded against the first and second defendants, which was by then, as it remains, a failure to warn case. With that in mind, his Honour gave leave to the plaintiff to deliver either a reply or an amended statement of claim "asserting what he would have done had what he alleges was the appropriate warning been given", and ordered that any such reply or amended statement of claim be delivered by 10 May. On that day, 10 May, the plaintiff served an amended statement of claim which amended his case in two respects. First he pleaded that had he been warned of the risk of the severance of the nerve, he would have made further inquiries about that risk from the doctor who had warned him and also sought a second opinion about the risk. He does not plead what the second opinion was likely to have been, and what he would have done with the benefit of it. Secondly, by this amended pleading he now alleges that the third, fourth and fifth defendants are liable on a failure to warn basis. It is claimed that the third and fourth defendants as the surgeons who did perform the surgery, were obliged to warn of the risk which eventuated. The plaintiff pleads the same consequence of that failure to warn, which is in effect that he did not obtain a second opinion.

[6] The third, fourth and fifth defendants apply to disallow the amendments of the case against them upon the argument that leave is required by r 376(4). The plaintiff says that r 376 does not apply so that he was entitled to amend without leave under (r 378). Rule 376(4) applies and leave is required if the failure to warn case against these defendants is a different cause of action from the negligent surgery case already pleaded. Alternatively, the plaintiff applies for leave under r 376 if that is required.

[7] Rule 376 provides in part as follows:

(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

(4) The court may give leave to make an amendment to include a new cause of action only if -

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment."

[8] The term "cause of action" was defined in Cooke v Gill[1] as being "every fact which is material to be proved to entitle the plaintiff to succeed", a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran[2] per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff's case would be treated as raising a new cause of action which required leave in the context of a rule such as

r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland[3] subsequently endorsed as a "fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended". The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff's case is described. Some illustrative guidance is provided by Allonnor Pty Ltd v Doran, Thomas v State of Queensland and another judgment of the Court of Appeal, Central Sawmilling No. 1 Pty Ltd & Ors v State of Queensland.[4]

[9] In Allonnor, the plaintiff was employed by the defendant as a delivery driver, and sued for an injury to his back and neck said to have been suffered on a certain date making a certain delivery of furniture. He sought to amend to add a claim for an injury to his shoulder, allegedly caused by another delivery made to a different address but on the same day. McPherson JA "doubted whether what was sought to be added by way of amendment really amounts to a new cause of action"[5] but in any case held that the new cause of action (if any) arose out of substantially the same facts and the amendment should be allowed. His Honour said: [6]

"On any view of what is pleaded, the plaintiff was, at the end of the day in question, left with physical injury to his body, which resulted from the same cause, which was lifting (whether on one or more than one occasion) in the course of the same employment with the same employer. It is not unreasonable to state it in this way, although admittedly it is to some extent a matter of the level of generality at which the proposition is expressed."

[10] In Thomas v State of Queensland, the Court of Appeal disallowed an amendment of a case brought by an injured motorcyclist against the State as the authority responsible for the highway on which he was injured. His case was that there was a large amount of soil on the road surface which caused his motorcycle to lose traction and collide with another vehicle. His claim was pleaded originally on the basis that the defendant had been undertaking road works at the scene which had resulted in this soil on the road. He sought to amend to claim that the soil was there because it had been washed from a nearby embankment in a way which was attributable to poor construction of the highway in the first place. The Court held that this was a new cause of action, saying in its joint judgment:[7]

"The essential elements in a claim for damages for negligence are the duty of care, breach of that duty and injury caused by that breach. Here, although only for one injury an incident is alleged, different duties, different breaches and different causes of injury are now alleged. In our view the effect of the amendment is to include new causes of action."

[11] In Central Sawmilling, the plaintiffs claimed damages for breach of contract, saying that the defendant, the State of Queensland, by three identified written agreements had promised to provide them with certain quantities of timber. They then sought to amend to plead another agreement made between various timber millers, including the plaintiffs, and the defendant by which they were to receive those amounts of timber. That was held to involve a new cause of action.

[12] The plaintiff argues that the obligation on the third and fourth defendants to warn was part of the same duty which they owed in the performance of the surgery. It is said then that there is simply an alternative expression of a claim for breach of that duty. The argument relies upon this passage from the joint judgment in Rogers v Whitaker:[8]

"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case."

[13] The duty to warn of a material risk inherent in a proposed treatment can form part of the content of that more general duty. By expressing the doctor's duty at the more general level, it may be accepted that the duty upon which the plaintiff relies in this amendment is the same which founds his original case. That however does not determine the present question.

[14] Indisputably, the breach of duty now alleged is quite distinct from that already alleged. In substance it is such a different case from an allegation of negligent performance of the surgery that it cannot be described as some further particularisation of the original claim of breach of duty. It requires the plaintiff to prove a distinct fault, necessarily prior in time to the alleged breach in the course of the surgery, and then to prove the likelihood of some sequence of events in response to a proper warning. I do not accept that it is appropriate for present purposes to characterise the duty in this new case as the same as in the existing case, but on any view the new case involves quite a different breach.

[15] Then there is a difference in the new case which is relevant for the assessment of damages. The existing case, that of negligent surgery, involves a loss measured by the difference between the plaintiff's actual position and that which he would enjoy, had he had the benefit of the surgery but not the detriment from the severance of the nerve. Under the failure to warn case, his loss would be the difference (if any) between his actual position and the position in which he would be, had he been warned. His pleading does not seem to identify a difference. But assuming that his case, notwithstanding the terms of his pleading, is that he would not have gone ahead with the surgery, then his position (with a proper warning) would be that he would have avoided the complication but he would not have had the benefit of the surgery. The new case then is likely to involve a different assessment of damages, because the damage was different.

[16] Accordingly, the new case involves a different breach with a different consequence. In my conclusion it is not a further particularisation of the cause of action previously pleaded; it is a new cause of action. It cannot be pleaded without a grant of leave under r 376(4).

[17] There are then two questions, the first of which is whether the new cause arises out of substantially the same facts, the second whether it is otherwise appropriate to allow the amendment. The first of those involves again a question of degree. I am not persuaded that it should be answered in the plaintiff's favour. But in any case, I do not consider it appropriate that the amendment be allowed. That is because the plaintiff has not established an absence of prejudice from the cause of action being claimed so late. Indeed the fact of that prejudice is established by the defendants. The third defendant swears that he has no recollection of a consultation with the plaintiff the fact of which is recorded in the hospital records and more particularly, he has no recollection of what was then said. Nor can he recall what his usual practice was in 1988 with respect to warning a patient of the risks of this procedure. The fourth defendant gives evidence to the same effect. And each says that the available records do not assist on the question of whether any or what warning was given. In this context, the issue of prejudice is analogous to that which arises in applications under s 31 of the Limitation of Actions Act 1974, which is an issue to be determined according to the principles from Brisbane South Regional Health Authority v Taylor.[9] It was submitted for the plaintiff that the defendants are no worse off now in meeting this case than they would have been when they were joined, eleven years after the events, in 1999. That may or may not be so, but the submission is, in my view, inconsistent with the approach indicated by Taylor. It is unfair that the defendants should lose the benefit of their limitation defence against this cause of action when they cannot have a fair trial because of the lengthy period which has elapsed since 1988.[10] And further, the plaintiff has failed to explain why this cause of action is being pleaded only now.

[18] The third, fourth and fifth defendants further submit that the amendment should be disallowed because it is futile. This is because the plaintiff does not plead that with a proper warning, he would not have undergone the surgery. So they say that the plaintiff has not pleaded facts by which his condition was the result of a failure to warn. There is much force in that submission but it is unnecessary to determine that question because the amendments should be disallowed against these defendants for the reasons already given. And if the court is to determine that point, it would be appropriate that it do so with the participation of the first and second defendants, for the entire case against them should be summarily dismissed if that submission is correct.

[19] Accordingly, I am not persuaded that leave should be given to amend and the result is that the amendments pleaded against the third, fourth and fifth defendants in the statement of claim filed on 10 May 2006 will be struck out. The plaintiff will be ordered to file and serve a further amended statement of claim deleting those parts within seven days and subject to any further submission, the plaintiff must pay to the third, fourth and fifth defendants their costs of these applications to be assessed.

[1] (1873) LR 8 CP 107 at 116

[2] [1998] QCA 372 at [3]

[3] [2001] QCA 336 at [19]

[4] [2003] QCA 311

[5] [1998] QCA 372 at [6]

[6] [1998] QCA 372 at [7]

[8] [1992] HCA 58; (1992) 175 CLR 479 at 483

[9] [1996] HCA 25; (1996) 186 CLR 541

[10] [1996] HCA 25; [1996] 186 CLR 541 at 548-9 and 555