Iacovone v Raftos

Supreme Court of NSW|2016-04-19|Before: Adams J

Nature of proceedings

On 30 March 2012, the plaintiff commenced proceedings against the defendant for medical negligence. The plaintiff's claim is based on the injuries and disabilities he suffered and continues to suffer as a result of the defendant's negligence on 7 June 2010. On that date, the plaintiff attended upon the defendant complaining of chest pains. The defendant had been his general practitioner for some years. The defendant misdiagnosed the plaintiff as having a panic attack and sent him home with a prescription for Xanax. Approximately 2 hours later the plaintiff suffered a very serious myocardial infarction ("MI") resulting in cardiac arrest and hypoxic brain damage. He was asystole for at least eight minutes and remained in an induced coma for approximately 10 days.
Liability has been admitted in this matter and a two-week hearing confined to the question of damages is listed to commence on 2 May 2016. That hearing date was fixed on 17 June 2015.
On Tuesday 19 April 2016, a notice of motion brought on behalf of the defendant came before me for hearing in my capacity as duty judge. Although the defendant is the applicant on the motion I will refer to him as the defendant throughout and the respondent to the motion will be described as the plaintiff.
When the matter first came before me on 19 April 2016, I afforded Mr Beale, counsel appearing on behalf of the plaintiff, the opportunity to obtain instructions and prepare his response to the motion. As Ms Sandford of counsel, who appears on behalf of the defendant, was not available again until Friday the matter was stood over part heard before me to 2 pm on Friday 22 April 2016.
In support of the defendant's motion to vacate the hearing date, Ms Sandford outlined that she relied primarily upon the late service of an additional medical report of rehabilitation physician Dr Stephen Buckley. She submitted that this report has significantly changed the case the defendant is required to meet with respect to the amount of care that the plaintiff requires.

Background

At the time of his MI the plaintiff was 35 years old. He was in a de facto relationship with Melissa Bryant. The plaintiff was a self-employed electrician, but he has not returned to work since the MI. The experts agree that it is unlikely he ever will.
As a result of being asystole for eight minutes, the plaintiff suffered a hypoxic brain injury with resulting cognitive impairment and myoclonic jerking. He also has impaired lung function and is seriously depressed. It is common ground that the plaintiff has been under the care of a treating neurologist since suffering the MI and is being medicated for epilepsy. He has been described as having 'Lance Adams Syndrome.'
Ms Bryant was his primary caregiver until approximately August 2014 at which time the relationship ended and Ms Bryant moved out of the couple's shared flat. The plaintiff subsequently moved in with his elderly parents with whom he continues to reside.
These proceedings were commenced on 10 March 2012. A Defence was filed on 30 October 2012. The defendant admitted liability in 2015 and on 17 June 2015 the hearing was set down for two weeks commencing on 2 May 2016.
There are three substantial issues in dispute regarding the plaintiff's claim for damages: the amount of future care required, the length of time over which that care would be required and the extent of economic loss. Only the first of these two issues are relevant to the application to vacate the hearing date.
A number of expert witnesses have been engaged so far in these proceedings. Those expert witnesses include cardiologists, accountants and psychiatrists Professor Phillips and Dr Sarah Brown. The plaintiff has engaged Ms Katrina Curtain and Dr Buckley as occupational therapists. The defendant has engaged Dr Virginia Pascall as an occupational physician. The plaintiff also relies upon the evidence of neurologist Professor Roy Beran who first provided a report on 10 February 2015.
On 5 December 2015, the plaintiff suffered a severe epileptic seizure. This was the first seizure he had suffered despite being medicated against potential epileptic seizures. The seizure caused the plaintiff to move around so violently that he fractured his shoulder. He was taken by ambulance to Prince of Wales Hospital. Although it was initially anticipated that he would require surgery to reconstruct his shoulder, surgery was ultimately not necessary.
Subsequently it became clear that expert reports would need to be updated prior to the hearing in order to take this event in account.
Mr Glamceski, the plaintiff's solicitor, deposed in his affidavit of 16 February 2016 that counsel for the plaintiff spoke with Mr Munro, solicitor for the defendant, on 9 February 2015 and informed him of the 5 December 2015 seizure. Mr Glamceski further deposed at that time that he was taking steps to obtain the clinical notes of Prince of Wales Hospital and the New South Wales Ambulance records concerning the seizure. The notes and records were then to be provided to the experts in order to allow them to comment on the way in which this recent seizure impacts on the issues in dispute.
Records relied upon by the defendant show that the plaintiff's legal representatives were in receipt of the Prince of Wales records by 4 March 2016. The plaintiff did not provide written instructions to Dr Buckley to furnish a supplementary report until 6 April 2016 and it would seem that Dr Buckley was not provided with the Prince of Wales records at that time.
Professor Beran was also asked to provide a supplementary report. This report was dated 10 March 2016 but was not served on the defendant before 17 March 2016. Professor Beran was provided with the relevant hospital records. Professor Beran acknowledges in this second report that questions of epilepsy did not receive much attention in his first report. He notes that the plaintiff should no longer drive a motor vehicle and that people prone to seizures are more likely to die in their sleep. Professor Beran further states: "There is a condition known as SUDEP (sudden unexpected or unexplained death in epilepsy) and it does relate to people who have seizures who can die in their sleep. Iacovone would be a candidate for this but he also needs to be able to live his life to the full, as best he can, and care at night is perhaps a utopian expectation rather than a reality, as it would require somebody being with him at all times and that is not a realistic expectation. Some advocate a nocturnal monitored advice being used to protect against SUDEP where others would be alerted if a seizure occurred What would be important is to make sure that his treatment of epilepsy achieve satisfactory drug levels of the medications and that can be monitored using blood level determination"
Pursuant to the Professional List Practice Note the plaintiff was required to serve all witness statements by 2 March 2016. The statements of the plaintiff's parents were served on 4 April 2016, although the statement of Melissa Bryant was not served until 14 April 2016 as she was away on holidays.
Dr Pascall and Ms Curtain participated in a conclave and prepared a joint report dated 12 April 2016. Dr Buckley did not participate in that conclave. In the joint report Dr Pascall indicates that she was aware of the plaintiff's recent seizure and accepts this could have, inter alia, "an impact on his capacity for domestic tasks" and that she cannot give an opinion as to his needs at present.
The last directions hearing prior to the matter coming before me was on 13 April 2016. On that occasion the Registrar ordered that the plaintiff serve all outstanding witness statements by 5pm on Wednesday 13 April 2016 and the supplementary report of Dr Buckley by 5pm on Friday 15 April 2016. The matter was then stood over for directions before the Registrar on Tuesday 19 April 2016. At that time both parties were willing to keep the trial date of 2 May 2016. The plaintiff ultimately complied with those directions.
Dr Buckley's report of 8 April 2016 addresses the impact of the recent seizure by reference to Professor Beran's report and also relies upon, inter alia, a statement by the plaintiff's mother in which she indicates for the first time that the plaintiff's memory is so poor that he cannot cook for himself as he cannot be trusted to remember to turn off the heat.
Dr Buckley concludes that the plaintiff now requires a live-in carer in the form of a "housekeeper type person" with "training in the management of cognitively disabled persons and with specific training in the management of a person suffering a seizure (lateral positioning and airway and so on)." Dr Buckley also now recommends that a case manager not involved in his daily care be appointed, such as an occupational therapist, registered nurse, social worker or psychologist. This case manager would be required two hours a week to oversee the plaintiff's maintenance programme. In the summary of his report, Dr Buckley notes that the plaintiff's "…dependence upon his parents is considerably more marked than I had previously appreciated, according to the statements of his mother and father."
The defendant foreshadowed an application to vacate the hearing date in correspondence with the plaintiff dated 18 April 2016 and the matter came before me the following day.

The defendant's submissions

Ms Sandford principally relied upon the late service of the report of Dr Buckley dated 15 April 2016 in support of the defendant's motion. The opinion of Dr Buckley was in turn based on witness statements that had been served upon the defendant only one month before the hearing date rather than the two months required by the Professional Negligence Practice Note.
Ms Sandford contends that Dr Buckley's report of 15 April 2016 constitutes a dramatic departure from his earlier recommendations. In his report of 6 October 2016 (which report the defendant had re-served on the plaintiff), Dr Buckley recommended eight hours of assistance per week whereas he now recommends constant care plus case management.
Although Ms Sandford accepted that there was a need for an additional report from Dr Buckley to address the plaintiff's seizure episode, her complaint is that the report goes far beyond simply addressing the impact of that discrete issue. Rather, it introduces for the first time the assertion of the plaintiff's mother to the effect that he requires 24-hour help because of his poor short-term memory.
Furthermore, Ms Sandford contends that it would seem that the plaintiff did not provide Dr Buckley with the Prince of Wales Hospital records, notwithstanding that they were available to the plaintiff by 4 March 2016 as evidenced by computer records regarding the production of those records under subpoena.
The prejudice caused by the late service of this most recent report of Dr Buckley is said to be that the defendant is unable to obtain expert evidence to respond to it. Although the defendant had been able to engage neurologist Dr Sommerville since the matter was first before me on 19 April 2016, Dr Pascall will apparently be unable to provide a supplementary report before the hearing. In fact she will not be able to see him until August 2016 and then would require four to five weeks to provide a report. I was informed that she is unable to provide a further report without actually going to the plaintiff's home and examining him there.
The defendant relies upon s 62(4)(a)(c) of the Civil Procedure Act 2005 (NSW) ("CPA") in support of his contention that it must have a reasonable opportunity to lead the relevant expert evidence. That section provides that a direction concerning the conduct of the hearing must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity to lead evidence and to present a case.
In addition to the central issue of meeting Dr Buckley's most recent report, Ms Sandford submits that there are other issues of concern regarding whether the matter is ready for hearing. Psychiatrists Professor Phillips and Dr Brown, in their joint report dated 4 April 2016, declined to give an opinion regarding the impact of hypoxic brain damage as opposed to depressive symptomology on the plaintiff's condition at this time.
The defendant submits that the present application was brought promptly and was foreshadowed to the plaintiff on the first business day following service of Dr Buckley's report of 8 April 2016.
Ms Sandford relied upon the observations of Justice McColl in Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 at [60]: "60……for the purpose of furthering the overriding purpose referred to in s 56(1), proceedings in any court are to be managed having regard, inter alia, to the just determination of the proceedings: s 57(1)(a), CPA. I note, furthermore, the requirement in s 62 (Part 6, Division 2) of the CPA, that a court giving directions as to the conduct of any hearing must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity, inter alia, to lead evidence. 61 Section 62 clearly informs the overriding purpose of, inter alia, the just determination of the proceedings, a matter emphasised in Hans Pet Constructions Pty Ltd v Cassar (at [43] ff) per Allsop P (Campbell and Young JJA agreeing). As Allsop P explained (at [46]) the powers conferred by the CPA are "not intended to be used to punish the litigant" and "[t]he proportional use of the powers in s 61 is brought about by giving the fundamental weight to the (sometimes competing) considerations in ss 56 and 57 required by s 58(2)(a) and bringing to bear such of the matters set out in s 58(2)(b) as the Tribunal thinks appropriate"."

The plaintiff's submissions

Mr Beale on behalf of the plaintiff noted that Dr Buckley had previously reported on 8 June 2015, 6 October 2015 and 2 January 2016. He accepted that the most recent report of Dr Buckley proposes a higher level of care than previously indicated, but submits that the change of opinion was largely due to the plaintiff's recent seizure, an event of which the defendant was on notice.
In response to the defendant's complaint that Dr Buckley's most recent report goes beyond the purview of the seizure, Mr Beale submitted that there is sufficient time for the defendant to address the contents of the parents' witness statements regarding the plaintiff's short-term memory issues prior to the hearing. He submitted that the failure to make Dr Buckley aware of the statements of the plaintiff's parents at an earlier time is a matter that is capable of being addressed at the hearing.
Mr Beale submitted that the real issue is not whether it is necessary to revisit the respondent's care needs completely, as the defendant contends, but rather whether the defendant will be able to "engage with" Dr Buckley's opinion by the time of the hearing.
Mr Beale responded to the defendant's contention that it was not possible to qualify and obtain the relevant expert opinion prior to the hearing by noting that it has already been able to engage neurologist Dr Sommerville and that Dr Pascall is already a witness in the case. It is said that the defendant can ask Dr Pascall to consider Dr Buckley's recent report and to respond in the course of the hearing. Mr Beale submits that it is difficult to say see how this new evidence on this relatively confined issue could not be met in reply before the hearing, given that both Dr Buckley and Dr Pascall are available for cross-examination and that Dr Pascall participated in the conclave.
In response to the defendant's secondary argument that the joint psychiatric report appears inadequate, Mr Beale notes that it is the plaintiff bears the onus in this matter. The fact that the psychiatric evidence may not be as fulsome as desired does not amount to prejudice upon which the defendant is entitled to rely in its application to vacate.
Mr Beale submits that, if the hearing date is vacated, the plaintiff will face significant further delay. The matter would not be likely to be heard until 2017. He notes that all reports have been served and that all experts have participated in joint conclaves and prepared joint reports. Considerable time, effort and costs have been expended on these conclaves in readiness for the hearing. If the matter is adjourned for a significant period of time, further reports will be required to bring the evidence up to date with consequent waste of the parties' resources.
Finally, Mr Beale submits that no prejudice to the defendant has been demonstrated. Dr Buckley's report raises a discrete issue in the hearing. Ultimately, the issue turns upon a factual assumption that the plaintiff is considerably more dependent upon his parents than previously thought to be the case. The defendant has sufficient time to reply to both the evidence of the plaintiff's parents and Dr Buckley's response to it.

Consideration

The relevant principles governing an application such is this are well known and were considered by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 ("Aon Risk Services"). Although the application in that case was one to amend pleadings, the High Court addressed the concerns of case management more generally and in doing so noted the impact that substantial delay and wasted costs have on the parties to proceedings, the court and other litigants.
As French CJ observed at [5] in Aon Risk Services: "5 In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. …..."
His Honour further stated, at [30]: "Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."
Similarly, the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed at [90], [92] and [94]: "90 The overriding purpose of r 21, to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia, although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms. 92 The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation." … 94 … Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants."
The rules to which the High Court was referring in Aon Risk Services are similar to ss 56 - 58 of the CPA. Those sections relevantly provide: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and … the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
In considering this application I have had regard to what a "just resolution" of the proceedings requires in light of the purposes and objectives stated in the above statutory provisions. In particular, I have had regard to the need for speed and efficiency and to minimise delay and expense, as balanced against any injustice caused to either party by the determination made by me. Taking into account all of the material placed before me on the motion and the submissions of the parties, I do not propose to adjourn the hearing date of 2 May 2016 in this matter for the following reasons.
First, liability is admitted in this matter. I accept Ms Sandford's submission that the question of damages is complex in this matter as is evidenced by the two-week hearing time allocated to that question. Despite this, the issues to be determined at the hearing are still more limited than had the question of liability also been in dispute.
Second, this is not a case in which there is a late application to amend pleadings or to bring a new cause of action nor one in which an important witness is suddenly unavailable. The central complaint is that evidence from the plaintiff's parents needs to be put to expert witnesses in order for them to reconsider the level of care required by the plaintiff.
Third, the consequences of vacating the hearing date would be significant. This matter has been listed for nearly a year, having been fixed in June 2015. If the defendant's application were to be granted, many of the experts' reports would need to be updated. Apart from the cost and delay, one also must take into account the inconvenience to those doctors who had attended the earlier conclaves and what, in effect, would be the waste of their time in so doing.
Fourth, there would be prejudice to other litigants in that two weeks of court time would be wasted.
Fifth, there is no longer any prejudice to the defendant in meeting Professor Beran's evidence. When the matter came before me on Tuesday 19 April 2016 I was informed that the defendant had not as yet been able to obtain a neurologist for the hearing. By the time the matter came before me again on 22 April 2016, a report had been obtained from Dr Sommerville and that report was tendered on the application.
Sixth, the dominant prejudice ultimately relied upon was that Dr Pascall had indicated that she would not be able to reconsider this matter until August 2016 and then would be unable to provide a supplementary report until four to five weeks thereafter. Dr Pascall is a witness who has been in this matter for some time. She has agreed to be engaged on behalf of the defendant and come to court to give evidence at some point in the two-week period commencing on 2 May 2016. Although it must be accepted that expert witnesses such as Dr Pascall have heavy demands on their time, given the inherent uncertainties in litigation she might have been expected to have spent a number of days attending court in this matter in any event. In those circumstances her indication that she is not able to assist the court by re-visiting her report before August 2016 requires some scrutiny.
The hearing in this matter is listed for two weeks. It is difficult to see how time could not be found either before the hearing or during it for Dr Pascall to address Dr Buckley's most recent report. She has already prepared a report and participated in the conclave. She is aware of the background to the matter and has already met with the plaintiff on one occasion. The only new information she has to address, other than the seizure of which she is already aware, is the assertion of the plaintiff's mother that the plaintiff's poor memory is such that he cannot cook for himself and hence needs full-time care. I find it difficult to accept that it is impossible for Dr Pascall address this discrete issue prior to or during the hearing. I note Ms Sanford's submission that Dr Pascall cannot do so without visiting the plaintiff in his residence. Given that Dr Pascall has already agreed to be a witness in this case, I do not accept that if such a course is necessary it cannot be undertaken either before or during the two-week hearing if every effort is made to do so.
Eighth, this is not a case where the payment of interim damages under s 82 of the CPA would cure any prejudice caused to the plaintiff by an adjournment. The plaintiff is currently living with his parents, who have responsibility for his care. Ms Sanford informed me that such an offer has already been made on behalf of the defendant. Mr Beale indicated that it is the negative impact upon the plaintiff personally should the proceedings be delayed any further, rather than any financial hardship, which informs the plaintiff's opposition to the defendant's application. Although I did not ultimately take into account Professor Phillips most recent report dated 21 April 2016 in support of this submission, I accept from other evidence before me that the plaintiff suffers from depression and that for such a person further delay would be distressing.

Conclusion

Overall, I am not satisfied that the just resolution of this application would be to vacate the hearing date.

ORDERS

I make the following orders: 1. Dismiss the defendant's motion to vacate the trial date of 2 May 2016. 2. Defendant to pay the plaintiff's costs on the motion.

Amendments 26 April 2016 - Order (2) on the coversheet is amended to read "Defendant to pay the plaintiff's costs on the motion." Order (2) in paragraph [65] is amended to read "Defendant to pay the plaintiff's costs on the motion." Paragraph [9] is amended to read "The plaintiff sought leave to cross-examine..." E Chrysostomou appeared with P Beale as counsel for the plaintiff. 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: 26 April 2016

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