Gillett v Robinson

Plaintiff's submissions 16The plaintiff contended that in all of these circumstances she should be permitted to amend her statement of claim and to rely upon the evidence of Dr Molloy for the following reasons. First, that Professor Robinson failed to provide relevant information and advice. It was contended that what he should have appreciated from the obstetric records of the plaintiff's mother was that there was an increased risk of an obstructed delivery due to the size of the plaintiff and a history of obstructed delivery with a an earlier pregnancy. It was submitted on behalf of the plaintiff that her mother should have been provided with information and advice about the options that were available for the delivery of her baby having regard to the risks of another obstructed delivery with particular regard to the weight of the plaintiff compared to the weight of a previous foetus. 17Secondly, the proposed additional particular of negligence was not substantially removed from a case based upon the currently identified particulars of negligence. This is a submission directed to the question of Professor Robinson's ability to meet the amendment and any questions of prejudice that may attend his doing so. 18Thirdly, both in relation to the proposed amendment and the use of Dr Molloy's report, the plaintiff argued that it would not be in the interests of justice to deny her the opportunity to propound the new case based upon what was in effect a failure to advise her mother of the relevant options if the failure to plead it originally was not something for which she was directly responsible. Counsel for the plaintiff frankly conceded that the case had neither been properly pleaded nor prepared. 19I was in terms taken to portions of the decision of the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, in particular at 489 as follows: "The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information." (Citations omitted) 20The plaintiff's new case at its most basic would therefore appear to be that her mother was not advised, particularly in the light of her obstetric history, of the comparative risks and benefits of caesarean delivery and vaginal birth or given the opportunity to choose between them with the benefit of that advice, but that she should have been. It is therefore different to the currently pleaded case that seems to be directed at what Professor Robinson should have done safely to deliver the plaintiff, quite apart from any duty that he may have had to inform or to advise the plaintiff's mother about the comparative risks of what he intended to do to deliver the plaintiff or to seek her views about it before committing himself, and hence the plaintiff's mother, to a particular course.

Professor Robinson's submissions 21In opposition to the plaintiff's applications Professor Robinson submitted generally that the plaintiff should not be permitted to introduce or rely upon Dr Molloy's report and that without it there was no evidence to support the application to amend, which for that reason alone would be futile and should also therefore be rejected. These general submissions were supported by a series of particular contentions as follows. 22First, allowing either or both the amendment application or the introduction of Dr Molloy's report would have a tendency to undermine the joint expert process in general and in this case in particular. As appears above, the three experts conferred and produced a joint report following compliance with the Court's directions about it and, with the exception of the material referred to in the plaintiff's solicitor's email dated 13 July 2011 (referred to in more detail later in these reasons), the plaintiff took no step to complain about the process or the proposed questions until the answers in the joint report appeared to raise difficulties for the plaintiff's case. The plaintiff was attempting impermissibly to construct a new and different case within days of the final hearing because the joint experts' report was unfavourable. Professor Robinson relied upon the high thresholds set by UCPR 31.26 and 31.28 as follows: 31.26 Joint report arising from conference between expert witnesses (1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c). (2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement. (3) The joint report may be tendered at the trial as evidence of any matters agreed. (4) In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court. (5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report. 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties: (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). 23Professor Robinson submitted that the plaintiff had not demonstrated compliance with these rules and that any leave contemplated by them should be refused. 24Secondly, the plaintiff has failed properly or adequately either to explain or justify the delay in making the present application. The proceedings have been on foot for almost five years. She has retained counsel at various times and for various purposes. None has apparently detected the case that the plaintiff now wishes to advance prior to production of the joint experts' report. This is so notwithstanding the fact that her own expert, Professor Chapman, had indicated as long ago as his report dated 12 December 2007 that the choice of a vaginal delivery was reasonable and that there was a distinction to be made between a request for a caesarean and a demand for one. The plaintiff therefore had more than three and a half years to realise and to come to terms with the fact that the case as pleaded had no reasonable prospects of success. All of this would appear also to have been clearly and emphatically explained by senior counsel in July 2010 and twice in February 2011. There was ample opportunity to amend the case but no timely attempt to do so materialised. 25Thirdly, the parties have known that the case has been listed for hearing since 9 November 2010. The application to change the plaintiff's case did not emerge in any form, and was not notified to Professor Robinson, until the week preceding the commencement of the hearing. 26Fourthly, the plaintiff's application would defeat the principles of case management in a way emphasised by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [111] - [114] as follows: "[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases[176]. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. [113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy[177]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. [114] Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided." 27Paragraph [133] should also not be overlooked: "[133] In relation to Queensland v J L Holdings Pty Ltd, it is sufficient to hold that, at least in jurisdictions having rules similar to rr 21 and 502, that case has ceased to be of authority. It is necessary to apply the Rules without any preconceptions derived from what was said in that case. There is a common opinion - it is far from universal, but it is common - within the judiciary and the legal profession that Queensland v J L Holdings Pty Ltd, whether it has been correctly understood or not, has had a damaging influence on the conduct of litigation. One judge who held that opinion was Bryson J. In a passage which merits preservation from the oblivion of unreported judgments, he pointed out one undesirable consequence of the way Queensland v J L Holdings Pty Ltd has been understood: 'In view of the state of the law governing allowance of amendments, amendment applications brought forward before the trial began were treated with uncomplaining supine liberality, notwithstanding that they sometimes showed that problems had been addressed years after they should have been. I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty. It is even conceivable that a litigant might deliberately pursue a course which will impose disadvantage on an opponent who has to reconsider his ground and change course in the midst of a contest'." 28Fifthly, the application causes prejudice to Professor Robinson. Professor Robinson did not deal with the new issue in his statement of evidence prepared for the proceedings. The experts in joint conference and the joint report did not deal it with. A reconvening of that conference would be necessary to deal with it. The events that give rise to the proceedings are now over 26 years old. Dr Robinson has little memory for the particular events and ought not to be confronted with the need once again in a different context to attempt to revisit them so long after they occurred. 29Sixthly, the provisions of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 impose obligations upon and specify procedural and other requirements to be met by parties to litigation which the plaintiff in this case has neither complied with nor met. I was referred to Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [36] as a summary of the factors touching the exercise of a discretion of the type I am presently asked to exercise as follows: "[36] Sections 56, 57, 58 and 59 require a judge, exercising a discretion under UCPR r 1.12, to have regard to whether a party, seeking the exercise of the discretion in its favour, has: (a) diligently pursued the object of disposing of the proceedings in a timely way; (b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and (c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination." 30Professor Robinson contended that the plaintiff failed in her obligations in all of these respects. 31Finally, Professor Robinson contended that the applications were futile because the plaintiff, through her solicitor, had acknowledged and conceded that she would call no further evidence. That was a matter of particular significance, according to Professor Robinson, because there is no material from the plaintiff's mother suggesting that she would have taken any different course, as for example by insisting upon or choosing to have a caesarean section to deliver the plaintiff, if the duty for which she seeks to contend had been complied with. According to Professor Robinson, the amendment could therefore not advance the plaintiff's case, as the critical issue of causation could not be established. Consideration 32As earlier indicated, Nicholas Mitchell Coren, the plaintiff's solicitor, swore an affidavit in support of the application on 29 July 2011, which was the Friday before the hearing commenced. He referred at paragraph 30 of that affidavit to the receipt by him of Professor Chapman's second report and the view that he (Mr Coren) then formed. That paragraph is as follows: "30. Professor Chapman provided a second report dated 12 December 2007...Professor Chapman says in [his] second report at the foot of page 4: "If there was demonstrated to be proof that this conversation did occur and the patient demanded that a caesarean be done, then I certainly believe that Professor Robertson [sic] should have agreed to that request". Following receipt of Dr Chapman's second report, I believed that the only claim available related to the failure of Professor Robinson to consider the mother's request for a caesarean." 33Mr Coren was cross-examined and gave the following evidence: " KIRK : Q. Your understanding of the case as it is currently pleaded, leaving aside the proposed amendment, is that it contains two particulars of negligence, you understand that? A. Yes, I do. Q. The first of those two particulars in paragraph 6 (a) is that the Defendant was negligent by failing to undertake a Caesarian section on the Plaintiff's mother, despite requests to do so? A. Yes. Q. The second is that the Defendant failed to appropriately consider the Plaintiff's mother's prior pregnancy and birthing concerns? A. Yes, I understand that, yes. Q. You understand that that second particular in essence raises the issue of whether or not a Caesarian section was indicated for the treatment of the Plaintiff's mother in connection with the fourth pregnancy, the Plaintiff's pregnancy? A. My understanding was that, yes, the relevance of the prior pregnancy as to whether or not, yes, a Caesarian was to be undertaken in considering the request, yes. Q. So in the sense there were two elements. One, that the Defendant should have followed the request for a Caesarian section, the first particular. Two, that he was negligent by not having a Caesarian section where that was medically indicated? A. The prior birthing concerns related to the Caesarian, because it was in the context of knowledge of the difficulties, as to the seriousness that the request should have had. Q. Is it your understanding of the case as it currently stands that in essence those two particulars are two sides of the one coin? A. They obviously have to be related, yes. I probably wouldn't say two sides of the one coin. I would say that the first proposition of course about the request is bolstered, if you will. Unfortunately bolstered by the prior pregnancy concerns. HIS HONOUR Q. Don't they in summary indicate a suggestion that the Defendant was negligent because he failed to undertake a Caesarian when he was requested to? A. Yes. Q. And secondly, that despite requests, he should have undertaken a Caesarian because it was medically indicated? A. Your Honour, that's wasn't my understanding, no. My understanding was that it was always to be a request case, was my understanding of those particulars . There was to be I'm sorry. It was to be a consideration of whether or not the request was made, was my understanding of what the principal issue was . The seriousness, if you will, of the situation, being evidenced by the difficulty sustained previously." (Emphasis added) 34It was upon that very same basis that Professor Robinson's experts proceeded thereafter to express their opinions about whether or not he had breached any alleged duty that he owed to the plaintiff or her mother and it was that basis upon which all of the experts jointly conferred. The questions drawn for their consideration and the answers that they gave were similarly based. It was not until those answers confirmed what Mr Coren had previously been advised by Mr Harben SC in July 2010 and were reaffirmed by Mr Connor SC in July 2011 that any search for a new case commenced. It was by then too late. 35Not only was it too late for the reasons adumbrated in Professor Robinson's submissions, which I accept, but it was also probably too late in the strategic and forensic sense. This was because the plaintiff's mother's statement had by then long ago been provided to the solicitors for Professor Robinson and, to the not so faint chagrin of counsel later retained for the plaintiff, had effectively committed her to a factual position from which it would be difficult for her to resile without penalty. Moreover, her version of the conversation with Professor Robinson about whether she could have a caesarean fell short of the level of emphasis that Professor Chapman required to support his view that a caesarean should in certain circumstances have been performed. In any event, the plaintiff's mother has never proffered a different version and does not do so even now. The foundation for a case of the sort for which the plaintiff now seeks to contend has simply never materialised. 36If that were not enough, the plaintiff's mother's affidavit goes further. Following a recitation of the conversation between her and Professor Robinson, referred to above, the plaintiff's mother continued, at paragraph 69 of her affidavit of 27 May 2011, in these terms: "69. He [Professor Robinson] did not provide me with an opinion at that time or undertake any tests to determine if this baby was larger than my previous babies. 70. No CT scan or X-ray was undertaken on Halina to determine her size. I found this unusual as this had occurred during my pregnancy with Adam. 71. In relation to the conversation at [68] I did not pursue the matter further with Doctor Robinson because he was my doctor and he knew more about these things than me. 72. I didn't know what else to say. I had a concern and I raised it with Doctor Robinson. It was not my place to tell such an experienced doctor how to do his job. 73. I trusted Doctor Robinson to take good care of myself and my baby." 37Whatever else may be drawn or inferred from these words, it is clear that the plaintiff's mother was not demanding, or on one view even requesting, that a caesarean section delivery be arranged and performed. The evidence from the experts does not otherwise suggest that any indications for a caesarean had arisen in the antenatal period. That included the plaintiff's mother's obstetric history and the previous vaginal delivery of a baby over 4000 grams. The circumstances for a consideration of the relative merits of a vaginal delivery and caesarean section, and the simultaneous creation of a legal obligation, in the form of a duty to advise and explain them to the plaintiff's mother, simply do not arise. The fact that Professor Chapman answered all questions posed for the joint conference of experts alike with Doctors Lyneham and Childs suggests unequivocally that he was by no later than 20 July 2011, and probably well before then, completely satisfied that it had not been, and would not be, "demonstrated [that there was] proof that [the relevant] conversation did occur and the [plaintiff's mother] demanded that a caesarean be done." 38I consider that the application to amend and to rely upon Dr Molloy's report is futile. Even if it were not, it comes so late in the day that it is difficult to discern any redeeming basis upon which it could possibly be favourably considered. It is patently an attempt to save a case that has taken a body blow in the form of the joint experts' report. The only exceptional circumstances attending the application are that it comes on the first day of the hearing with no more than a week's notice to the other side. The latest that such an application might reasonably have been expected would be in the days and weeks immediately following the emphatic advice given by Mr Harben SC on 29 July 2010. Almost precisely twelve months elapsed with nothing emerging. There is no satisfactory explanation of why, if it was genuinely supported by the plaintiff's original instructions, the new case did not either form part of her case from the start or become the subject of an application to amend much earlier. The only apparently available answers to that question do not shed any favourable light on the plaintiff's side of the record. 39The email from the plaintiff's solicitor dated 13 July 2011 requires some comment. It is a somewhat curious document in many respects. It is, however, clear enough that it was written with an expectation or anticipation that the joint conference of experts would produce a report that did not assist the plaintiff's case. It is also clear that Mr Coren was attempting to distance himself from its conclusions, even in advance of knowing what they were, and to prevent the conference going ahead as scheduled if he could. It was written belatedly in response to repeated attempts by Professor Robinson's solicitors over the months since February the same year to elicit his response to the proposed list of questions that had been drafted for the experts to consider. 40The timing and content of the letter are important. Nothing that emerged after the joint conference of experts, which prompted the application to amend and call Dr Molloy, could not easily have been discovered and acted upon well before, if proper attention to it had been given when it should have been. I have been left with the very real impression that the plaintiff became the hostage of her mother's version of the conversation with Professor Robinson, so that the entire shape of the case was set from when her statement was served. The reference by senior counsel to the service of Professor Robinson's offer of compromise in his communication with Mr Coren sounded in its context a fairly clear warning about his concerns and should have provoked a review of the matter at that time. Any attempt to reconfigure the proceedings, or to amend the statement of claim, should also have been made then. As I have said, it is too late by the two or three weeks prior to commencement of the hearing to attempt to recover from the consequences of inaction for so long. Mr Coren's attack upon the utility of the experts' joint conference was in my view no more than a smokescreen. No injustice attends denying the plaintiff the opportunity to pursue a new case now. 41Finally I note that on one view of the matter, the report of Dr Molloy does not in any event support or propound a case of the type that the proposed amendment seeks to make out. This is not an insignificant consideration. It is true that Dr Molloy appears to disagree with the views expressed by Professor Chapman and Doctors Child and Lyneham. So much emerges from the following portions of Dr Molloy's report: "32 I do not agree with Professor Robinson's view that '...there was no reason for her to have a caesarean section on this occasion'. 33. In my opinion there were a number of considerations that individually and collectively supported recommending an elective caesarean section in this case. Indeed, in my view the considerations supporting a caesarean section outweighed the considerations favouring a further vaginal delivery (VBAC). I would have advised Ms Gillett's mother to have an elective caesarean section, that is, a caesarean section before she went into labour and sometime shortly after [the 14 October 1985] consultation. 34. Another alternative was induction of labour at 37 weeks. In this case what happened was induction of labour at 39 weeks, some two weeks later than the time I believe the baby should have been delivered. The additional two weeks is likely to have resulted in a foetal weight gain of about 500gms. 35. In any event the matter was one for discussion with the mother in the course of which the options of elective caesarean section or induction of labour or natural vaginal delivery would be addressed and the advantages and disadvantages of each course carefully explained to the mother." 42However, these opinions are almost completely beside the point of the proposed amendment. Paragraph 35 approaches the relevant issue but is wholly unsupported or accompanied by any pertinent expression of opinion about compliance or non-compliance by Professor Robinson with any appropriate standard of care or alleged departure from what was widely accepted in Australia by peer professional opinion as competent practice in 1985. Nothing that he has said informs his position on the breach alleged in proposed paragraph 6(c). On any proper analysis, Dr Molloy is doing no more and no less that purporting to disagree with individual opinions of Dr Child and Dr Lyneham and Professor Chapman, which were framed and expressed by reference to the pleadings in their current form. His report is effectively inutile in and irrelevant to the present application. Moreover, it is in my opinion in this respect a matter of some very considerable significance, and potentially a matter reflecting most critically upon Mr Coren, that as far as Dr Molloy's report reveals, he was neither provided with, nor accordingly does he make any reference to, the joint experts' report. This is so notwithstanding the fact that Dr Molloy's report is dated 27 July 2011, or seven days after the joint conference of experts. I am only able to conclude that this was done intentionally and deliberately. Speaking as neutrally as I can in this respect I observe that Dr Molloy's report and its status as a piece of information upon which I can rely have been substantially degraded as a result of this fact. It is in any event merely one opinion which neither engages with the joint experts' opinion in terms nor one that can be considered to have been expressed with the benefit of the expert professional interplay and discussion that I am bound to conclude formed part of the joint conference on 20 July 2011. Conclusions and orders 43I confirm my order dismissing the plaintiff's application. I will deal with the question of the costs of the application at some time convenient to the parties and to the Court.

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: 12 August 2011