Kaye v Dr Woods and John James Memorial Foundation Ltd [2014] ACTSC 25

5. Except in relation to the hearing on 20 December 2013, the plaintiff is to pay the costs of the application and the costs thrown away by reason of the amendment as follows:

1. 50% of the costs of the Medical Indemnity Protection Society; and

6. Except in relation to the hearing on 20 December 2013, the costs of the second defendant in relation to the application will be the second defendant's costs in the cause and the plaintiff is to pay the second defendant's costs thrown away by reason of the amendment.

7. Pursuant to rule 1701(2), the costs ordered to be paid by the plaintiff pursuant to orders 4, 5 and 6 not be assessed until the proceeding ends.

8. The proceedings are listed on 7 March 2014 at 10 am and no later than 4 pm on 5 March 2014 the parties are to provide by email to my associate a timetable outlining the directions required so that a hearing may be listed at any time no sooner than three months from today or if the directions are not agreed, the directions proposed by each party.

1. The plaintiff has sued the first defendant, an orthopaedic surgeon, who carried out three operations on the plaintiff. She has also sued the second defendant, the hospital where one of the operations was performed in relation to her post-operative treatment.

2. By application dated 14 November 2013 the plaintiff has applied for leave to amend the Amended Statement of Claim. In order to understand the application it is necessary to have regard to the procedural history of the matter and the evidence read or tendered in support of the application.

3. The plaintiff first saw the first defendant on 3 April 2000 shortly before her 14th birthday. The operations in question occurred on 17 May 2000 (the first operation), 16 October 2000 (the second operation) and 29 May 2002 (the third operation). Following the third operation the plaintiff suffered complications as a result of a streptococcal infection which caused necrotising fasciitis.

4. The proceedings were commenced by originating claim on 23 May 2008. The plaintiff at that stage was 22 years old.

5. The Statement of Claim identified the first defendant's negligence as conduct relating to the third operation including a failure to warn the plaintiff about the possibility of infection arising from the presence of two 8 mm Richards Staples that had been placed in her knee during the first operation. It also included allegations of negligence relating to the conduct of the first defendant relevant to the infection that caused her damage after the third operation. The second defendant was also alleged to be negligent in terms similar to the allegations against the first defendant.

6. The first defendant filed a defence on 22 September 2008 and the second defendant filed its defence on 11 November 2008.

7. The second defendant provided discovery in January 2009. The plaintiff provided discovery in February 2009. The first defendant provided discovery in March 2009. A supplementary list of documents was provided by the second defendant in September 2009. Answers to interrogatories were provided by the second defendant in May 2010. Answers to interrogatories were provided by the first defendant in June 2010. Additional answers to interrogatories were provided by the second defendant in September 2010. Additional answers to interrogatories were provided by the first defendant in December 2010.

8. In July 2011 the plaintiff foreshadowed the making of an application to amend her pleadings. That application was filed on 6 October 2011. The application also sought an extension of time in which to bring proceedings against the first defendant for his conduct from 3 April 2000, that is, the day on which he first saw the plaintiff. That application was based upon the plaintiff obtaining an expert's report from Dr Jonathan Beacon, an orthopaedic surgeon based in the United Kingdom. It took five more directions hearings before the Master or a Deputy Registrar before the application was heard and determined by Cowdroy J on 7 June 2012. His Honour extended time so as to permit the plaintiff to bring an action arising out of the advice given by the first defendant from 2000 up to and including 2002, as well as the operations and procedures performed by the first defendant on 17 May and 16 October 2000. Leave was granted to permit the filing of an amended statement of claim and there were ancillary orders made. His Honour also made orders relating to a dispute about particulars.

9. Consistently with the reports of Dr Beacon, the Statement of Claim was amended to allege negligence in the conduct of the first operation with consequences that flowed through to the second and third operations.

10. The matter was then listed for hearing in July 2013. Further directions were subsequently made in July and September 2012 relating to the filing of evidence and participation in a mediation. An amended defence was filed by the first defendant in September 2012 and by the second defendant in April 2013.

11. On 31 May 2013 an application for vacation of the hearing date was heard and I vacated the hearing date. Both defendants consented to the vacation of the hearing date although there was some dispute as to the appropriate costs order. The basis for that application was that on 28 March 2013 the first defendant served expert reports on liability that required the plaintiff to undertake further investigations. It was said not to be possible for the plaintiff to finalise those investigations and serve any further reports arising from them as there was insufficient time to enable the defendants to respond prior to the allocated hearing dates.

12. The plaintiff was subsequently directed to file and serve any further expert reports by 19 July 2013. That date was later amended to 25 September 2013. On 31 October 2013 the plaintiff foreshadowed the possibility of further amendments to her statement of claim. There were directions made relating to the finalisation of expert evidence by the defendants. Ultimately the application to amend the statement of claim was listed for hearing on 20 December 2013.

13. After the application was part heard on 20 December 2013 the plaintiff made an application for a further adjournment so that she could provide a further draft of her proposed amended pleadings addressing some of the concerns raised by the defendants in relation to it. The application was heard to finality on 19 February 2014 when I reserved my decision until 24 February 2014.

14. The evidence in support of the application is an affidavit of Mabel Lim sworn 14 November 2013. That affidavit explains that in April 2011 the plaintiff obtained a medico legal report from an orthopaedic surgeon Mr Jonathan Beacon who raised several arguable causes of action which led to the amendment of the statement of claim by leave granted by Justice Cowdroy in June 2012. Both of Dr Beacon's reports are exhibited to the affidavit.

15. The affidavit also states that on 28 March 2013 the first defendant served four medico-legal reports, two of which had not been served prior to that date. The two previously unserved reports were reports of Dr Stening and Dr Fox. The reports of Dr Stening and Dr Fox are exhibited to the affidavit. They differ very sharply in their conclusions from the conclusions of Dr Beacon.

16. The affidavit then says that on 27 May 2013 the plaintiff obtained a medico legal report dated 16 May 2013 from Dr James Powell an orthopaedic surgeon. It then refers to two additional reports of Dr Powell dated 4 September 2013 and 26 September 2013 both of which were obtained following the provision of the plaintiff's medical imaging and diagnostic films to Dr Powell. All three reports of Dr Powell were exhibited to the affidavit. It records that in the light of Dr Powell's report counsel for the plaintiff settled an amended statement of claim. Near the end of the affidavit it provides:

18. I am instructed by the plaintiff and her mother, also her sole guardian at the time, that neither of them had any knowledge of the matters raised by Dr Powell's medicolegal report.

19. To date, there has been nothing in the material supplied by the first defendant to suggest that the first defendant had advised the plaintiff or her mother of the matters raised by Dr Powell's medicolegal report.

17. The plaintiff also tendered for the purposes of the application some of the records relating to the referral to the first defendant and his treatment of the plaintiff. Those documents were:

(a) a referral letter from Dr Robert Still to the first defendant dated 23 March 2000 which provided "Thank you for assessing and managing this 13-year-old lass with an acute rupture of the left anterior cruciate ligament with a view to anterior cruciate ligament reconstruction ...";

(b) a reporting letter dated 3 April 2000 from the first defendant to Dr Still;

(c) an operation report in relation to the first operation (17 May 2000);

(d) one page of handwritten notes of the first defendant spanning the period 18 September 2000 to 5 February 2002;

(e) an operation report relating to the second operation (16 October 2000);

(f) an operation report relating to the third operation (29 May 2002);

(g) four pages of progress notes from the second defendant relating to the treatment of the plaintiff following the third operation during the period 1 June 2002 to 4 June 2002.

18. The plaintiff also provided a document containing her proposed Further Amended Statement of Claim which I will mark as Exhibit 2.

19. The plaintiff submitted that there was a reasonable explanation for the making of the amendments to the pleadings at this late stage and that there was sufficient material to disclose a sufficiently arguable claim to warrant the granting of leave to amend. The plaintiff submitted that the amendments to the pleadings arose out of the same factual matrix and hence if they technically raised a new cause of action that the amendments were within the scope of rule 503.

20. The plaintiff explained that the approach of Dr Beacon was that the manner of performing the graft involved in the anterior cruciate ligament repair was negligent in that the ligament was misplaced so as to lead to the development of scar tissue over time. As a consequence, the second and third operations became necessary and hence the first defendant was responsible for the disastrous consequences that arose from the infection suffered by the plaintiff following the third operation.

21. Although there was no evidence of this before the Court, Senior Counsel for the plaintiff explained that in March or April 2013 his instructing solicitors became aware that Dr Beacon was facing disciplinary proceedings arising out of misconduct with his patients. He said that his instructing solicitors subsequently learned that Dr Beacon had actually been struck off the register of medical practitioners in the United Kingdom. The insurers of the first defendant did not object to me being informed of the matters relating to Dr Beacon in this manner and I proceed on the basis that the information, although not particularly precise, is accurate. There is therefore a real possibility that the plaintiff may choose not to, or be otherwise unable to, call Dr Beacon as a witness to give evidence at the trial.

22. Senior Counsel for the plaintiff explained the proposed amendments to the Amended Statement of Claim. He explained that the proposed Further Amended Statement of Claim introduced into the pleading an allegation that the plaintiff had suffered, prior to seeing the first defendant, a condition described in the proposed amended pleading as "the patellofemoral condition". That is described in paragraph 1.10 of the proposed amended pleading as follows:

Dr Still diagnosed the Plaintiff with bilateral patella-femoral arthralgia related to mal-alignment and tightness of the hamstrings and quadriceps, and aggravated by netball ("the patellofemoral condition").

23. It is then alleged that at the time the plaintiff consulted the first defendant she suffered from both the patellofemoral condition and the anterior cruciate ligament injury.

24. It is alleged that the first defendant did not obtain a full history of the patellofemoral condition (1.16) and did not advise the plaintiff about treatment for the patellofemoral condition (1.17). It is alleged that the first defendant did not advise the plaintiff that the knee reconstruction would not address the patellofemoral condition or allow her to return to netball without the return of the symptoms caused by the patellofemoral condition (1.19). It is alleged that the first defendant did not suggest any alternative to treatment, surgical or otherwise, for the patellofemoral condition (1.20).

25. In relation to the October 2000 operation it is alleged that they defendant did not advise the plaintiff that that operation would not address the patellofemoral condition or allow her to return to netball without the return of the symptoms caused by the patellofemoral condition (1.31).

26. The plaintiff alleges that she "returned to netball in 2001 but continued to [suffer] symptoms of pain and swelling in the left knee caused by the patellofemoral condition" (1.37). In September 2001 she is alleged to have suffered pain and swelling in the left knee caused by the patellofemoral condition (1.39). In October 2001 she consulted Dr Still who arranged an MRI scan which showed that the ligaments and cartilage in the left knee were all intact (1.40). She was then referred to the first defendant who she consulted in February, March and April 2002 (1.41-1.42). In relation to the May 2002 operation it is alleged that the first defendant did not advise the plaintiff that the third operation would not resolve the patellofemoral condition or allow her to return to netball without the return of symptoms caused by the patellofemoral condition and did not advise the plaintiff about treatment for the patellofemoral condition (1.44-1.45).

27. The added particulars of the first defendant negligence are:

2.2 Failure to advise the Plaintiff about conservative treatment for her left knee cap;

2.3 Failure to advise that Plaintiff that the knee reconstruction would not cure the patellofemoral condition in the plaintiff's left knee;

2.4 Failure to advise the Plaintiff that the knee reconstruction would not permit that Plaintiff to safely return to playing competitive netball;

2.11 Failure to advise that Plaintiff about treatment for her patellofemoral condition in her left knee cap a the time the October 2000 [operation] was recommended;

2.12. Failure to advise that Plaintiff that the October 2000 operation would not cure the patellofemoral condition in that Plaintiff's left knee cap;

2.13 Failure to advise the Plaintiff that the October 2000 operation would not permit that Plaintiff to safely return to playing competitive netball;

2.15. Failure to obtain the plaintiff's consent to perform a debridement, lateral extension and release of her left knee;

2.16. Failure to refer the Plaintiff for a second opinion from a suitably qualified orthopaedic surgeon before recommending the May 2002 operation;

2.17 Failure to advise the Plaintiff about treatment for her patellofemoral condition in her left knee at the time the May 2002 operation was recommended;

2.18 Failure to advise the Plaintiff that the May 2002 operation would not cure the patellofemoral condition in that Plaintiff's left knee;

2.19 Failure to advise the Plaintiff that the May 2002 operation would not permit the Plaintiff to safely return to playing competitive netball;

2.29 Failure to respond to requests made by the servants and agents of the Second Defendant in relation to the plaintiff's treatment and care between 1 June 2002 and 4 June 2002;

28. The plaintiff submitted that in the light of the documentary material provided as well as the reports of Dr Powell, the allegations of negligence that were sought to be introduced were sufficiently arguable to warrant a grant of leave. The plaintiff submitted that having regard to the decision in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, it was not necessary for Dr Powell to express the opinion that the standard of care provided by the first defendant fell below the standard of care that would have been provided by a reasonably competent orthopaedic surgeon. She also submitted that the terms of Dr Powell's reports were sufficient to disclose an arguable cause of action in negligence relating to the treatment of the patellofemoral condition.

29. When asked about why the plaintiff was maintaining the allegations based on Dr Beacon's opinion in circumstances where it was likely that he would not be called by the plaintiff, Senior Counsel for the plaintiff, Mr Bartley SC, indicated that enquiries were still being made as to the possibility of Dr Beacon being called. In the event that the decision was made not to call Dr Beacon he gave an undertaking on behalf of the plaintiff that to the extent allegations were entirely dependent upon Dr Beacon's opinion and did not receive any support outside Dr Beacon's evidence then such allegations would be withdrawn from the statement of claim.

30. Two insurers of the first defendant appeared separately as they are entitled to do under r 245 of the Court Procedures Rules. Mr Gregg, who appeared for the insurer that insured the first defendant in the period from 1 July 2001, submitted that the proposed pleadings were inadequate in a number of respects. He criticised the pleadings which led to the definition in paragraph 1.10 of the pleading of the "patellofemoral condition". He submitted that the pleading, in the light of the terms of the referral from Dr Still, was inadequate because it failed to identify the patellofemoral condition as being a matter which had been referred by Dr Still, a sports medicine physician, to the first defendant.

31. In relation to the allegations of negligence he submitted that the reports of Dr Powell provided no expert basis to support an arguable claim of negligence. He submitted that the opinion of Dr Powell did not extend to saying that there had been a breach of duty or, more specifically, that the treatment provided by the first defendant fell below the standard of care provided by a reasonably competent specialist orthopaedic surgeon in the circumstances assumed or demonstrated to exist.

32. He submitted that while there might be parts of the amended pleadings which could go forward, in the light of the history of the matter it would be appropriate to have the issue of the pleadings that were permissible determined upon this application rather than permit the plaintiff to make a further attempt to draft her pleadings.

33. Mr Purnell SC, who appeared for the insurer for the period prior to 1 July 2001, adopted the submissions of Mr Gregg, particularly the submission that Dr Powell's reports did not provide an evidentiary basis for the allegations of breach of duty.

34. In reply, Mr Bartley pointed again to the decision in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and in particular the passage at 487, emphasising that the standards adopted by medical practitioners are not determinative of the question of negligence and submitted that it would be inappropriate for a witness to express an opinion as to negligence per se.

35. He also submitted that care needed to be taken not to interpret the expert's reports of Dr Powell as though they were pleadings. He said that, having served the expert reports, it would be permissible at trial to lead oral evidence consistent with the report that allowed Dr Powell to explain what he meant by those sections of his report over which there could be some doubt as to whether or not he asserted that the first defendant had fallen below a reasonable standard of care.

36. The rules relevant to an application of this sort are rules 502, 503 of the Court Procedures Rules. Plainly enough the principles articulated (somewhat pointedly) by the High Court in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 are relevant to determining the application. The leisurely pace at which this case has meandered over five and a half years towards and then away from a hearing would certainly attract some of the negative sentiments expressed in the judgments of the High Court in Aon. The approach required by Aon was summarised by Master Harper in Balnaves v Armellin [2011] ACTSC 67 at [57]- [68] as follows:

57. Until recent times, the court has generally been disposed to permit amendments to pleadings reasonably freely, subject to orders for costs, including costs thrown away, in reliance, now seen to have been to some extent misconceived, on the decision of the High Court of Australia in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, even since the introduction of the Court Procedures Rules in mid-2006. The correct approach to late applications for amendment has now been explained by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, on appeal from this court and dealing with the same rules. Gummow, Hayne, Crennan, Kiefel and Bell JJ in a joint judgment dealt with the power to allow amendment under rule 502 and how that fitted in with the objectives of the rules set out in rule 21. Their Honours said at paragraph 92 that the purposes stated in rule 21 reflect principles of case management by the courts, now an accepted aspect of the system of civil justice administered by courts in Australia. The principles are directed to tackling the problems of delay and costs in the litigation process. The civil litigation rules are no longer to be considered as directed only to the resolution of the dispute between the parties to the particular proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect on the court and other litigants. Their Honours quoted from the judgment of the English Court of Appeal in Worldwide Corporation Ltd v GTP Ltd [1998] EWCA Civ 1894, delivered by Waller LJ, to the effect that where a party had had a sufficient opportunity to plead his or her case, it might be necessary for the court to make a decision which might produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. Any suggestion that a party has a right to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment is unfounded. A party has the right to invoke the jurisdiction and the powers of the court to seek the resolution of a dispute, and may have a right to amend without leave depending on the rules of the court, but the question of further amendment is dependent on the court's discretionary power. Parties should be given a proper opportunity to plead their case, but limits may be placed upon re-pleading when delay and cost are taken into account. An order for costs may not always provide sufficient compensation and therefore achieve a just resolution.

58. Their Honours went on to say (at paragraphs 102-103) that the objectives in rule 21 do not require that every application for amendment should be refused simply because it will involve the waste of some costs, and some degree of delay. The nature and importance of the amendment to the party applying cannot be overlooked. Their Honours said at para 102:

Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may be properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates.

37. To the extent that the amendments might introduce a new cause of action the plaintiff is entitled to rely on rule 503(4) which permits a new cause of action to be pleaded after the expiry of the limitation period if it arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed. Neither of the insurers of the first defendant raised any objection to the making of the amendments on the basis that these requirements would not be satisfied if the Court considered that the amendment was "appropriate".

38. On an application such as this, I accept that it is generally incumbent upon the plaintiff to provide an explanation for the making of the amendments, particularly where the amendments are made many years after the commencement of proceedings. Further, it is incumbent upon the plaintiff to provide some evidence that the claim it seeks to advance in the amended pleadings is one which has utility, in the sense of being a reasonably arguable claim on the merits. Where a pleading is amended many years after the commencement of proceedings, the prejudice assumed to arise out of the granting of the further indulgence and the further delay in the final disposition of the matter means that it is incumbent upon the plaintiff to provide some evidentiary support for the arguability of the claims. The extent of evidentiary support will be very much dependent upon the nature of the case and its procedural history. The strength or otherwise of the case demonstrated will be relevant to the exercise of discretion to permit the amendment.

39. The explanation for the late amendment provided by the plaintiff is in some ways satisfactory and in some ways unsatisfactory. The problems which have arisen for Dr Beacon and the forensic consequences of those problems are not of the plaintiff's doing.

40. However, the fact that the plaintiff may choose or be compelled not to call Dr Beacon as a witness does not compel her to seek to run a different case. At least at the time when the application was made to vacate the hearing date in July 2013 there was no suggestion that the plaintiff would seek additional evidence to support an alternative case but rather that it would seek evidence in reply to the reports of Dr Fox and Dr Stening which had been served outside the time permitted by the Court's directions. There is no explanation as to why, if there had been concern on the part of the plaintiff or her mother about what is described in the proposed pleading as "the patellofemoral condition" or if the determination to play competitive netball at a high level was of importance to the plaintiff, these were not matters upon which expert advice was sought prior to or immediately following the commencement of proceedings in 2008. While I have recognised in Naidu v Fergusson (2013) 8 ACTLR 150 that the availability of additional expert evidence may provide an appropriate explanation for amendment to pleadings, that of itself is not sufficient to provide an explanation in circumstances where proceedings have been on foot for many years and the plaintiff has had an opportunity to obtain such expert evidence as she wishes over many years.

41. The evidence supporting the arguability of the case is the area where the plaintiff runs into real difficulties. I will deal first with the evidence of Dr Powell as, in my view, that provides the clearest demonstration of the absence of evidence of an arguable breach of duty on the part of Dr Woods in relation to the most important new allegations contained in the proposed amended pleading.

42. The report of 16 May 2013 provided commentary upon what occurred under a number of headings. They were:

(a) Appropriate and initial procedures;

(b) Choice of procedure;

(c) Necessity for further surgery (the arthroscopies); and

(d) Subsequent infection.

43. In relation to "Appropriate and initial procedures" the doctor says: "There were minimal notes to indicate the depth of discussion that took place between Dr Woods and the patient and her parents in the initial assessment for ACL injury." He concludes: "Given the interest in informed consent it is difficult to imagine that the full picture was not outlined although it is likely that heavy emphasis was given towards surgery." There is no opinion in this section that suggests what Dr Woods did was inappropriate or fell below the standard which would be expected of a reasonably competent orthopaedic surgeon. Under the heading "Choice of procedure" the doctor expresses the opinion that the choice of procedure was an appropriate one. Under the heading "Necessity for further surgery (the arthroscopies)" the doctor makes reference to the patient's previous knee pain difficulties as follows:

However it is noted that the patient had knee pain difficulties for several years prior to the ACL rupture incident and this would suggest that she had some other difficulties in the knee although no particular diagnosis seems to have been made.

In Dr Steele's [sic] referral of the patient to Dr Woods he notes he had difficulty undertaking an "apprehension test". It is not clear which particular one he is referring [to] but possibly he is indicating that there may have been some concern with respect to the patellofemoral joint as a pivot shift test for ACL insufficiency is not usually referred to as an apprehension test. The patient subsequently came to lateral release at the first arthroscopic procedure and this would suggest that there was some concern with regard to patella tracking and possibly subluxation. It is however difficult having not examine[d] the patient at the time to determine where the difficulties are actually arising from that I could find in the notes.

The second procedure was undertaken due to ongoing difficulties with the knee once she had returned to sporting activities and involved a lateral release suggesting that Dr Woods felt that there was continuing difficulty with the patellofemoral joint as well as possibly there had been recurrence of difficulties here with scar contraction and tightening in lateral structures again requiring the second procedure.

It was also noted to have redeveloped cyclops lesion which was further debrided.

It would not be unreasonable to offer patients a second procedure given her ongoing difficulties. The selection of surgery as opposed to proceed without surgical intervention is one of clinical judgement and experience.

44. Although, as Mr Bartley emphasised, there is reference to the knee pain difficulties of the plaintiff prior to the ACL rupture incident, the patellofemoral joint and concern with patella tracking, there is nothing in this section which indicates that in Dr Powell's opinion the first defendant failed to advise the plaintiff or treat her in accordance with the standard expected of a reasonably competent orthopaedic surgeon in the circumstances.

45. Under the heading "Subsequent infection" Dr Powell refers to the history of treatment and the condition of the plaintiff following the third operation. He refers to the insertion of the drain and the application of dressings to the wound. He refers to the plaintiff's subsequent admission where she was found to have a temperature and Dr Woods' visit to her at which he ordered blood tests and a swab to detect infection. He refers to the direction to the registrar to stitch the arthroscopy wound and the subsequent commencement of antibiotics. Having set out the history he says:

The area of concern is the closing of the wound which may have allowed this course to occur and there is no clear indication as to why this course was taken.

The registrar who had been asked to close the wound may not have picked up any significant abnormality to cause him to seek other advice. It is not very common for arthroscopic wounds to be dealt with by the hospital staff as the patients often leave the hospital on the same day and the wounds are cared for externally and so he would have little experience to compare with and simply adhered to Dr Woods' request.

46. While this passage does not extend to an expression of opinion that Dr Woods fell below the standard of care expected by a reasonably competent orthopaedic surgeon it does at least indicate an area of concern where Dr Powell impliedly suggests, at least on whatever material was available to him, that he may have acted differently.

47. The report of 4 September 2013 is not really a report at all but rather some notes arising out of a conference with Senior Counsel for the plaintiff and the plaintiff's solicitors. It includes the following:

The nature of the patient's preceding need difficulties is not clearly known. This may indicate patellofemoral difficulty given the morphology of the patellofemoral joint on CT scans.

This may explain the addition of lateral release and the subsequent surgical procedures with arthroscopy.

Determining management that may be influenced by individual surgeon's experience, referral base and there may have been other and not recorded contacting given that sports medicine physician was involved who appears to have a close relationship with the surgeon.

48. The document does not indicate that in Dr Powell's opinion the advice or treatment provided by Dr Woods fell below the standard of a reasonably competent orthopaedic surgeon.

49. The report of 26 September 2013 provides a response to a number of quite specific questions articulated by the plaintiff's solicitors. Dr Powell is asked to comment upon the function of the plaintiff's knee leading up to her first consultation with Dr Woods. Dr Woods comments that the plaintiff "was a netballer at the time and this is played on a hard surface and so it is not infrequent for young girls to have anterior knee pain". He said "It would appear that her overall presentation at that time was of an irritable knee on a background of previous irritation and anterior knee pain."

50. Dr Powell is then asked whether the operations on 16 October 2000 and 9 May 2002 were likely to achieve an outcome that would restore the plaintiff's pre-anterior cruciate ligament injury levels of function, particularly having regard to her pre-injury problems. In his answer, Dr Powell explains the likely causes and rationale for the operations in 2000 and 2002. He does not make any criticism of what occurred and does not specifically provide an opinion as to whether or not the second and third operations were likely to restore the plaintiff's pre-injury levels of function.

51. I will set out in full questions 3, 4 and 5 and the answers that Dr Powell gave.

3. With or without the operations performed by Dr Woods, do you consider that Ms Kaye was ever likely to be able to continue to participate in a high standard of competitive netball?

Performance of [a] high level of sport is very multifactorial and there are various levels of achievement that might be interpreted as high level depending upon which point of view one is taking but have very different meaning to others.

Netball at a high level played on a hard surface with it being a competitive sport places a significant degree of strain upon the knees and those players with less than satisfactory knee design usually reach a lower level.

A patient who has had a patellofemoral anterior knee difficulties for whatever reason in adolescence and if these difficulties were to continue into adult life is unlikely in a competitive field that depends upon the knees to maintain a high level of sport such as netball and would be more prone to injury.

4. Do you consider it would been reasonably apparent to an orthopaedic surgeon examining Ms Kaye on 17 May 2000, 6 October 2000 and 29 May 2002 that the likelihood of Ms Kaye successfully returning to competitive netball was low?

Taking into account the history as derived through the notes and investigations viewed and taking into account the dates given it would be reasonable that a general orthopaedic surgeon might well come to the conclusion that this patient would be unlikely to be able to participate in high level competitive netball.

She may have been able to undertake recreational netball particularly if symptoms were taken as limiting guide to her participation.

5. If so, do you consider that Ms Kaye ought to have been warned that regardless of the outcome of the surgery, it was unlikely that she would return to competitive netball?

It would not be unreasonable to warn a patient with significant difficulties over a number of years that return to a competitive sport that depended highly upon the knees may not be possible with or without reconstructive procedures involving the patellofemoral joint.

52. The answer to question 3 really provides the background to the answer to question 4. The opinion in the answer to question 4 that "it would be reasonable that a general orthopaedic surgeon might well come to the conclusion that this patient would be unlikely to be able to participate in high level competitive netball" does not, in my view, amount to an opinion that a general orthopaedic surgeon would be falling below a reasonable standard if the surgeon did not form that opinion. In any event, having regard to the uncertainty of the meaning of the concept of high standard of competitive netball reflected in the answer to question 3, the answer to question 4 is of limited use. While I accept the plaintiff's submission that the report should not be construed as though it was a pleading, the plain meaning of the words used does not provide evidence of a failure on the first defendant's part to meet the required standard of care. Having regard to the many months over which the plaintiff has had the opportunity to consult with Dr Powell and the various reports that he has prepared, if he actually held the opinion that a reasonable standard of care had not been met or even that he disagreed with the approach taken by Dr Woods I would have expected that to have been said in terms.

53. Question 4 in turn provides the basis for the answer to question 5. The statement that "It would not be unreasonable to warn a patient..." is obviously different from the statement that it would be unreasonable not to warn a patient. The former does not provide evidence that Dr Woods fell below the standard expected of a reasonably competent orthopaedic surgeon. While I do not consider that there is ambiguity in what the doctor said, if the plaintiff considered that there was some ambiguity then, once again, I would have expected the plaintiff to have obtained evidence from Dr Powell for the purposes of this application which resolved the ambiguity and hence provide an arguable basis for her contention that Dr Woods breached his duty.

54. Question 6 deals in several parts with the post operative treatment following the third operation. Answer 6(c) was:

(c) Was it appropriate to suture Ms Kaye's wounds on 3 June 2002?

I can see little reason as to why the wound was closed as it would not have improved the functionality of the knee and at that time possibility of infection as a cause of continued bleeding was being entertained.

55. While this opinion might be tentative, it does provide some evidence which could support a finding that the direction to close the wound fell below a reasonable standard of care. However the plaintiff has already alleged in her Amended Statement of Claim that this instruction was negligent.

56. While the plaintiff did raise the possibility that, if leave was granted to amend the statement of claim, an additional report would be obtained from Dr Powell answering what Senior Counsel described as "trial questions" rather than "amendment questions", I consider that the limited nature of the support given by Dr Powell's reports for the amendments sought to be made must have been apparent to the plaintiff's advisers at the time of the application and was explicitly a matter of concern raised by me at the hearing on 20 December 2013. Having regard to the length of time since at least May 2013 that Dr Powell has been briefed, the plaintiff has had more than adequate opportunity to obtain any necessary clarification or amplification of the opinions of Dr Powell.

57. In addition to the very limited support which is given to the additional allegations by the reports of the opinion of Dr Powell, there was no evidence from the plaintiff or her mother which would support the merits of the amended pleading. While in many cases where an amendment is sought to be made it will, having regard to the nature of the amendments sought, the terms of the pleadings and the factual background to the claim, be unnecessary for a plaintiff to give any evidence, this case is not one of them. That is principally because a central assumption behind the amended pleading is that there was such significance in the desire of the plaintiff to continue to be able to play competitive netball or competitive netball at a high level that the orthopaedic surgeon to whom she had been referred by her sports physician had an obligation to advise in relation to other conditions, not expressly the subject of the referral, that might affect her capacity to play competitive netball and that had advice been given then the plaintiff would not have undergone the operation to repair her anterior cruciate ligament. None of this is self evident or able to be assumed in the light of the uncontested facts or the available expert evidence.

58. The only evidence of the plaintiff or her mother's position was that at paragraphs 18 and 19 of Ms Lim's affidavit which I set out above. That evidence is at such a high level of generality that I can place no weight on it. The statement that "neither of them had any knowledge of the matters raised by Dr Powell's medico legal report" is so general as to be meaningless. It is not possible to tell what either the plaintiff or her mother might have been referring to when providing the stated instructions to Ms Lim. Plainly enough both must have had some knowledge of the facts referred to by Dr Powell and hence the statement in Ms Lim's affidavit cannot be literally correct. It is impossible to tell what is being referred to that they deny knowledge of. Similarly it is not possible to give paragraph 19 any useful meaning because it is not at all clear what "the matters raised by Dr Powell's medico legal report" means to Ms Lim for the purposes of expressing the opinion that she does.

59. There is no evidence from the plaintiff or her mother disclosing that what is referred to in the proposed pleading as "the patellofemoral condition" was a matter of any concern to them at the point when they were seeking assistance from Dr Woods. Some evidence of that would have assisted the plaintiff in circumstances where the terms of the referral from Dr Still, the sports medicine physician, dated 23 March 2000 focus very clearly on an anterior cruciate ligament reconstruction.

60. Similarly there is nothing from the plaintiff or her mother to explain why the continuation of playing netball at a high competitive level was significant or how any advice from the defendant about what is described as the patellofemoral condition would have been of any causal significance. Specifically there is nothing saying that had the advice that was allegedly negligently not given been given it would have made any difference to whether or not the plaintiff consented to the first operation. I will explain in a moment why the failure to properly plead the causal link between the additional claims of breach of duty and the damage suffered by the plaintiff following the third operation is understandable having regard to the deficiencies in the Rules and the approved forms.

61. In the absence of any explicit pleading or any evidence from the plaintiff or her mother, the possible existence of a history of knee pain and the possible desire to play competitive netball either at a "high level" or otherwise does not as a matter of common sense and experience provide a cogent reason why the plaintiff would not proceed to have the acute injury namely the anterior cruciate ligament rupture repaired as her treating sports medicine physician had proposed. As a consequence it is not possible to fill the gap in the evidence and the pleading with a proposition based on common sense and experience. The end result of the evidence before me and the proposed pleading is that I am simply left to speculate as to why, in the circumstances, the first defendant is alleged to have been under an obligation to give advice about the patellofemoral condition and whether or not that would have been of any causal significance as a matter of fact. While it may be possible for a lawyer to draw together conceivable strands of a possible argument that might support liability, more is needed in circumstances where an application is sought to substantially amend pleadings many years after the commencement of the case.

62. At this point I must engage in a diversion to explain why the failure of the plaintiff to specifically plead the causal link between the allegations of negligence and the damage which she suffered following the third operation is not a matter which tells significantly against the granting of leave to amend. A notable feature of the pleadings in the present case is their failure to plead any facts relating to causation. This is the result of adopting form 2.5 which is an approved form under the provisions of the Court Procedures Rules. Form 2.5 is headed "Statement of claim-death or personal injury other than motor vehicle or employment related". It requires pleadings under certain identified headings, none of which relates to the causal link between the particulars of negligence provided in paragraph 2 and the injuries and disabilities suffered by the plaintiff in paragraph 3. In this respect it follows a similar structure to that in form 2.3 which relates to motor vehicle death or personal injury claims and form 2.4 which relates to employment death or personal injury claims. However unlike forms 2.3 and 2.4, there is no rule in the Court Procedures Rules which specifically authorises a truncated form of pleading in personal injury actions that do not relate to motor vehicle or employment injuries. In relation to forms 2.3 and 2.4, there are specific rules which authorise the truncated form of pleading. Rule 52 sets out what must be contained in a statement of claim for a motor vehicle death or personal injury claim. It lists the items which are then, in the approved form, translated into headings, that must be included in the claim. Rule 52(2) provides: "the statement of claim for the originating claim must include, and is sufficient if it includes, the following:..." (emphasis added). Rule 53 is to similar effect in relation to employment death and personal injury claims. There is no equivalent rule in relation to other personal injury claims. Thus, although an approved form is provided which contemplates the appropriateness of a truncated form of pleading for other personal injury matters, there is no rule which would authorise that truncated form of pleading in the face of the other rules which require matters to be fully pleaded.

63. In the present case, in common with other more complex medical negligence cases, the issue of causation is one which will not necessarily be obvious and one in relation to which specific facts will often need to be pleaded. Thus, the rationale for a truncated form of pleading, namely the routine and predictable nature of the claim, is not applicable. Although it would be possible to rectify any difficulties that occur in a particular case by making a specific direction that, notwithstanding the existence of the approved form, the plaintiff plead in accordance with the standard form of statement of claim, that would be a cumbersome process. This is a matter which would benefit from some consideration by the rules committee.

64. In the present case, while the absence of full pleading does create some difficulties, it does not appear to me to be fair to penalise the plaintiff on an application such as this for adopting an approved form which was available to be adopted notwithstanding there is a discontinuity between the requirements of the rules and the terms of the approved form.

65. In summary, for the reasons set out above, I see the following factors as factors which weigh against a finding that it is appropriate in the circumstances to grant leave to make this amendment.

(1) While there is some explanation of the reasons for no longer relying upon Dr Beacon's opinion there is not a good explanation as to why expert opinion was not sought in relation to "the patellofemoral condition" prior to commencement of proceedings or at any time between 2008 and 2013.

(2) The expert opinion of Dr Powell does not provide evidence that would support a finding that the advice and treatment provided by Dr Woods fell below the standard expected of a reasonably competent orthopaedic surgeon. The one exception to that is his opinion in relation to the direction to suture the arthroscopy wound.

(3) The proposal to plead breaches of duty relating to the patellofemoral condition appears to be inconsistent with the limited scope of the initial referral by a sports medicine physician who might be expected to be providing broader advice to the plaintiff. There was no evidence from the plaintiff or her mother that would tend to undermine that limited scope for the referral and the duty of the first defendant.

(4) There is no pleading or evidence that would explain the causal link between what is proposed to be alleged as breaches of duty and the significant damage suffered by the plaintiff following the third operation and the existence of such a causal link would appear in the circumstances to be improbable.

(5) Granting the amendment in relation to "the patellofemoral condition" will lead to further delay in listing the matter for hearing, conducting a mediation and determining the case at a trial. That delay will result from the plaintiff seeking to secure further evidence from Dr Powell or other specialist doctors to support the claims and providing an opportunity to the first defendant to obtain evidence in reply. Having regard to the fact that the plaintiff has taken since at least May 2013 to obtain evidence from Dr Powell the further delay may well be substantial.

66. In the light of the above, I am not satisfied that it is appropriate to grant leave to the plaintiff to make the amendments shown in Exhibit 2 other than in relation to various elaborations on the existing pleadings which do not raise substantial new issues likely to further delay the case.

67. I will therefore grant leave to the plaintiff to amend her pleadings but only in relation to the amendments shown in the following paragraphs of Exhibit 2: 1.23, 1.30, 1.33, 1.40-1.43, 1.56, 1.57, 1.73, 1.74, 1.79-1.83, 2.2, 2.29.

68. In relation to costs the plaintiff has been substantially unsuccessful in her application to amend the pleadings. Although the application was listed for hearing on 20 December 2013, when the application was part heard the plaintiff applied for an adjournment so that she could rectify some of the deficiencies in her proposed pleading. On that occasion I indicated that in those circumstances the appropriate order was that the plaintiff pay the costs of the defendants on a solicitor and client basis. I also indicated that pursuant to rule 1701(2) those costs should not be recoverable until the conclusion of the proceedings. Although I indicated an intention to make that order I did not actually make the order and I will make that order now. In relation to the balance of the costs of the application, having regard to the plaintiff's lack of success it is appropriate that she pay the costs of the first defendant. The second defendant, although appearing, took no active part in the application as the amendments were not directed to the second defendant. In my view, in relation to the second defendant the appropriate order is that the plaintiff pay any costs of the second defendant that are thrown away by reason of the amendment but that the second defendant's costs of the application be the second defendant's costs in the cause.

69. In relation to the costs of the first defendant, there is, however, an issue arising out of the fact that the insurers for the first defendant have recently exercised their entitlement under rule 245 to appear separately. Mr Purnell appeared on instructions from the insurer that ensured the first defendant up until 30 June 2001. Mr Gregg appeared for the insurer insuring the first defendant from 1 July 2001. In my view it is not appropriate that the plaintiff bear two sets of costs because insurers for a single defendant have decided that it is in their interests to appear separately. The plaintiff has sued a single defendant and if an order is made against her she should be required to bear no more than one set of costs. In these circumstances, the appropriate order in relation to the two insurers which have appeared separately is that except in relation to the hearing on 20 December 2013, the plaintiff pay 50% of the costs of the application and thrown away by reason of the amendment that I have permitted.

1. The plaintiff is granted leave to amend the Amended Statement of Claim by making the amendments shown in the following paragraphs of Exhibit 2: 1.23, 1.30, 1.33, 1.40-1.43, 1.56, 1.57, 1.73, 1.74, 1.79-1.83, 2.2, 2.29.

2. The Further Amended Statement of Claim is to be filed within 7 days.

3. The application in proceedings dated 14 November 2013 is otherwise dismissed.

4. The plaintiff is to pay the costs of the defendants of the hearing on 20 December 2013 on a solicitor and client basis.

5. Except in relation to the hearing on 20 December 2013, the plaintiff is to pay the costs of the application and the costs thrown away by reason of the amendment as follows:

1. 50% of the costs of the Medical Indemnity Protection Society; and

6. Except in relation to the hearing on 20 December 2013, the costs of the second defendant in relation to the application will be the second defendant's costs in the cause and the plaintiff is to pay the second defendant's costs thrown away by reason of the amendment.

7. Pursuant to rule 1701(2), the costs ordered to be paid by the plaintiff pursuant to orders 4, 5 and 6 not be assessed until the proceeding ends.

8. The proceedings are listed on 7 March 2014 at 10 am and no later than 4 pm on 5 March 2014 the parties are to provide by email to my associate a timetable outlining the directions required so that a hearing may be listed at any time no sooner than three months from today or if the directions are not agreed, the directions proposed by each party.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

Solicitors for the second defendant: Minter Ellison