Kenjar v Australian Capital Territory [2014] ACTSC 69

1. The plaintiff has sued the defendant, the Australian Capital Territory for injuries arising out of treatment and surgery received at the Canberra Hospital between August and October 2008.

2. By application dated 5 February 2014 the plaintiff has applied for leave to amend the Further Amended Statement of Claim. In order to understand the application it is necessary to have regard to the history of the matter including the procedural history and the evidence read and tendered in support of the application.

3. The plaintiff sought treatment at the Canberra Hospital on 24 August 2008, after injuring his right hand when he fell off a stool while attempting to change a light bulb. He underwent day surgery on 26 August 2008 and had an open reduction and multiple k-wire fixation of his right hand. On 16 September 2008, the k-wires were removed. The plaintiff was reviewed on 23 September 2008.

4. On 30 September 2008 the plaintiff presented at the hospital with pain and swelling in his right hand. A procedure to excise the necrotic skin and wash the abscess that had formed on the plaintiff's right hand was performed. He subsequently underwent surgery on 2 October 2008 to remove a piece of the k-wire that had been left inside his hand.

5. The overt infection that the plaintiff sought treatment for on 30 September 2008 was ultimately identified as staphylococcus aureus and the plaintiff also alleges that he has suffered permanent injury to his right hand.

6. Prior to commencing proceedings the plaintiff requested access to his medical records pursuant to the Health Records (Privacy and Access) Act 1997 and followed the procedures under the Civil Law (Wrongs) Act 2002.

7. The plaintiff commenced proceedings on 21 July 2011 and in his Further Amended Statement of Claim identified the defendant's negligence as failing to have a system in place for ensuring complete removal of the k-wire, failing to take adequate steps to prevent infection, failing to advise the plaintiff about proper wound care techniques and the risk of post-surgery infection. The defendant filed a defence on 28 June 2012.

8. The plaintiff filed a list of discoverable documents on 23 August 2012. An amended version of the list was filed on 18 September 2012 which claimed privilege over the liability report of Dr Mitchell and the briefing letter to Dr Mitchell.

9. A list of discoverable documents was filed by the defendant on 14 August 2012. There was only one entry in the defendant's list of documents which was "Canberra Hospital records for the Plaintiff". No dates for the various documents were specified.

10. On 25 March 2013 the plaintiff's solicitors wrote directly to the Canberra Hospital, requesting copies of "all imaging and scans" pertaining to the plaintiff. The plaintiff arranged for the films to be collected the next day and found images taken during surgery that showed k-wires in the plaintiff's right hand. The intra-operative images, which I will refer to as the image intensifier films, were erroneously dated 14 August 2008. Ms Velda Hunter, a registered nurse engaged as a consultant by the plaintiff's solicitors to review the material, prepared a report dated 23 July 2013 which provided that the image intensifier films were taken during surgery on 26 August 2008. This was subsequently confirmed by the defendant. The significance of this revelation was that the image intensifier films showed that there was a fragment of k-wire visible inside the plaintiff's hand on 26 August 2008. There was therefore objective evidence available which indicated that the k-wire fragment had been present from the date of the first operation and which was visible on the images taken at that time. This indicated that the fragment had been left in the plaintiff's hand during the operation on 26 August 2008 and not during a later procedure.

11. The plaintiff's solicitor sought additional expert reports on the basis of the image intensifier films. On 21 November 2013, Dr Howard Galloway, a radiologist, provided a report which was served on the defendant on 29 November 2013. On 20 December 2013, I granted leave to the plaintiff's solicitor to serve a report of Dr Daniel O'Keefe, an orthopaedic surgeon and directed the plaintiff to file any application for leave to amend the pleadings by 31 January 2014. The report of Dr O'Keefe was served on 29 January 2014.

12. On 5 February 2014, the plaintiff filed the present application. The application was first heard on 28 February 2014. Two affidavits of the plaintiff's solicitor dated 18 December 2013 and 28 February 2014 were read by the plaintiff. An affidavit of the defendant's solicitor dated 26 February 2014 was also read. Three exhibits including a schedule of correspondence were tendered. Both the deponents of the affidavits were cross-examined at some length and, as a consequence, the hearing of the application could not be completed and was adjourned.

13. On 13 March 2014 the hearing of the application was completed. On that occasion the plaintiff tendered an additional schedule of correspondence as well as a substantial folder of additional documents. At the conclusion of the hearing I reserved my decision.

14. The plaintiff made an application to reopen his case on the application so as to permit an affidavit of the plaintiff dated 19 March 2014 to be read in support of the application. I permitted the plaintiff to reopen his case and read that affidavit. The plaintiff also tendered an additional letter.

15. The amendments sought to be made to the Further Amended Statement of Claim involve pleading additional facts and adding to the particulars of negligence and breach of duty of care to take into account matters arising out of the discovery of the image intensifier films. In summary, the additional allegations are designed to assert that the failure to detect and remove the k-wire fragment shown on the image intensifier films during the course of the operation on 26 August 2008 was negligent and that the failure to remove that fragment on either 16 September 2008 or 30 September 2008 was also negligent. The particulars of negligence which are sought to be added are as follows:

a. Failing to properly read the image and make note of the k-wire fragment;

b. Failing to take any steps to remove the k-wire fragment during the first procedure;

c. Failing to take any steps to monitor the plaintiff's progress in light of the k-wire fragment situated in his right hand;

d. Failing to provide any treatment to ameliorate the risk of infection from the presence of the k-wire fragment from the first procedure onwards;

e. Failing to commence, continue or monitor the anti-biotic medication as long as it was made necessary by the presence of the k-wire fragment.

i. Failing, by its employees, contractors or agents, on the second and third procedures to observe the k-wire remainder apparent on the image intensifier image taken on 26th August 2008;

j. Failing by its employees, contractors or agents, to observe the k-wire remainder on the x-ray taken on 30 September 2008;

k. Failing, by its employees, contractors or agents, on either of the second and third procedures to remove the k-wire remainder.

16. The plaintiff's solicitor gave evidence that based on the defendant's list of discoverable documents, she had assumed that there had been no x-ray or films taken during the plaintiff's course of treatment. She said that "out of abundant caution" she wrote directly to the Canberra Hospital on 25 March 2013 and arranged collection of the image intensifier films on 26 March 2013.

17. A schedule of correspondence contained correspondence between the parties as well as the clinical notes that had been produced by the Canberra Hospital.

18. A schedule of expert medical evidence contained all of the expert medical evidence commissioned by the plaintiff including the following reports:

(a) Velda Hunter, registered nurse, dated 23 July 2013 and 24 February 2014;

(b) Dr Howard Galloway, radiologist, dated 21 November 2013;

(c) Dr Daniel O'Keefe, orthopaedic surgeon, dated 20 January and 5 March 2014; and

(d) Dr David Mitchell, a pathologist, dated 30 March 2011.

19. Dr Galloway's report was limited to the issue of identifying at precisely what time the loose fragment was first observed. His report noted that: "The first mention of a metallic foreign body in the clinical notes is the operation report of 2/10/08 which says "K wire tip retained as seen on Xray"".

20. Dr O'Keefe prepared a report dated 28 January 2014. However, that report contained some significant inconsistencies to which I will refer in more detail below and on 3 March 2014 the defendant's solicitor wrote to the plaintiff's solicitor pointing them out. Dr O'Keefe was asked to provide a supplementary report and on 4 March 2014 he did so. I will return in some detail to Dr O'Keefe's reports below.

21. As indicated at [14] above, I also granted leave to the plaintiff to reopen his case to read an affidavit of the plaintiff sworn on 19 March 2014. In this affidavit, the plaintiff deposed that he had no recollection of being told by anyone at the hospital that part of the k-wire had broken off. His affidavit states:

I have no recollection of being told by anyone at Canberra Hospital following the operation of 26 August 2008 or immediately following 30 September 2008 that any part of the K-wire that was placed in my hand on 26 August 2008 had broken off.

When I attended the emergency room on 30 September 2008 I recall being taken for an x-ray. After the x-ray I was told by someone in the emergency room that there was something found on the x-ray that had to be removed and that I would be having surgery that night to remove it.

After the surgery on 30 September 2008 I recall a nurse said to me that I had to have more surgery to find what was causing the pain. She told me that they could not find what they were looking for in the last surgery.

22. This evidence is consistent with the discovery of something on the x-ray taken on 30 September 2008 that needed to be removed even if it was not identified at that stage as a k-wire fragment.

23. The plaintiff pressed the application under rules 502 and 503. The plaintiff's primary submission was that plaintiff's claim was not statute-barred because the plaintiff did not learn of the existence of the image intensifier films until at least 25 March 2013 due to the defendant omitting the image intensifier film in its list of documents: see s 16B(2)(a) of the Limitation Act 1985. The plaintiff submitted that the defendant wrongly withheld production of the plaintiff's clinical records in breach of the Health Records (Privacy and Access) Act 1997 and that the defendant should not be permitted to take advantage of this error.

24. The plaintiff also submitted that in any case, the plaintiff should be allowed to amend the statement of claim under r 503(4) even if the limitation period had expired because the amendments were based on the "same facts or substantially the same facts". In relation to this submission, counsel for the plaintiff said that the treatment:

(a) pertained to a course of treatment entirely within the defendant's hospital and provided by the defendant's staff;

(b) was a continuous, uninterrupted course of treatment;

(c) the procedure which was now the focus of the claim was at least mentioned in the statement of claim when the proceedings were commenced; and

25. The defendant submitted that there was no evidence to suggest that leaving the k-wire fragment in place was causative of the plaintiff's injury. In support of this submission, he referred to an expert report served by the plaintiff by Dr Mitchell dated 30 March 2011 which provided:

As there was no infection apparent at the Clinic review on 23rd September 2008, overt infection must have developed between this date and the patient's presentation to the Emergency Department on 30th September 2008.

The less certain issue is when contamination of the surgical site with Staphylococcus aureus occurred. This could have been anytime from the original surgery on 26th August 2008 to the removal of the k-wires on 18th September 2008. The patient was taking Augmentin during this period. Whilst this antibiotic would not be considered optimal treatment for established staphylococcal infection, it would have had sufficient anti-staphylococcal activity to suppress and possibly prevent overt infection from developing.

26. The defendant submitted that the amendments would introduce a new cause of action and as the amendment did not arise out of substantially the same facts, leave should not be granted. In contrast to the plaintiff's submission, counsel for the defendant submitted that the 26 August 2008 procedure was completely separate from the 30 September 2008 procedure in that they took place in different months, were conducted by different surgeons and involved different techniques.

27. Further, the defendant submitted that there was a lack of utility in allowing the current amendments as the evidence from Ms Hunter, who is not a medical practitioner, did not constitute admissible evidence as to breach of duty. Moreover, he pointed to the inconsistencies in Dr O'Keefe's report that raised concerns about the accuracy of his opinions and said that Dr Mitchell's report did not support the contention that failing to remove the broken k-wire tip on 26 August 2008 constituted a lack of adequate care.

28. Counsel for the defendant also pointed to the plaintiff's solicitor's inadequate explanation for failing to inspect the defendant's documents and the delay between receiving the image intensifier film on 26 March 2013 and foreshadowing the present application on 17 December 2013.

29. The defendant also pointed to actual prejudice that it said would arise if the amendments were allowed in that the relevant witnesses had no memory of the events that founded the plaintiff's claim. In support of this submission, it relied on an affidavit of the defendant's solicitor affirmed 26 February 2014, which deposed that none of the medical or nursing staff present during the operation on 26 August 2008 that could be contacted by the defendant's solicitor had a recollection of the plaintiff or the procedure he underwent on that day.

30. The defendant submitted that the limitation period with respect to the 26 August 2008 procedure expired in August 2011 and that there was no evidence from the plaintiff as to his state of awareness of when he first knew that his injury was related to the k-wire which was left in place on 26 August 2008. However, this last submission was overtaken by the affidavit filed by the plaintiff deposing his lack of knowledge regarding this: see [21] above.

31. In Kaye v Woods [2014] ACTSC 25 I said:

The rules relevant to an application of this sort are rules 502, 503 of the Court Procedures Rules. 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.

32. In my view the issues that I need to address are:

(a) the plaintiff's explanation for making the application to amend at this stage of the proceedings;

(b) whether or not a limitation period precludes the grant of leave to amend;

(c) the extent of prejudice caused by the late amendment; and

(d) whether the evidence in support of the claims made in the amended pleading make it appropriate to grant leave to amend.

33. In my view, a reasonable explanation for the late amendment of the plaintiff's pleadings is provided by the fact that the image intensifier films taken on 26 August 2008 were not disclosed to the plaintiff despite a request having been made under the Health Records (Privacy and Access) Act 1997 (ACT) ("Records Act"), not provided pursuant to the Civil Law (Wrongs) Act 2002 (ACT) ("Wrongs Act") and not provided upon discovery.

34. The Records Act provides a right to an individual who uses or has used a health service to have access in accordance with the Act to a health record that is held by a health service provider. Section 10 of the Act provides:

10 Statement of principle regarding right of access

(1) A consumer has a right of access, in accordance with this Act, to a health record that is -

(a) a health record held by a health service provider; or

(b) to the extent that it contains personal health information relating to the consumer, any other health record;

(c) to the extent that the record contains factual matters, whenever the record was made;

(d) to the extent that the record contains matters of opinion, if the record was created on or after the date of commencement of this Act.

health record means any record, or any part of a record -

(a) held by a health service provider and containing personal information; or

personal information, in relation to a consumer, means any information, recorded or otherwise, about the consumer where the identity of the consumer is apparent, whether the information is -

personal health information, of a consumer, means any personal information, whether or not recorded in a health record -

(a) relating to the health, an illness or a disability of the consumer; or

(b) collected by a health provider in relation to the health, an illness or a disability of the consumer.

36. There are some exceptions to the right of access but none of which are relevant in the present case. Access may be given in a variety of ways depending on what is requested but where a request is made to receive a copy of the record then the Act requires, in relation to records made after the commencement of the Act, the consumer to be given a copy of the record or an accurate summary of the record. The image intensifier films constituted, in my view, a health record for the purposes of the Records Act. The letter of request dated 3 March 2009 that was sent from the plaintiff's solicitors to the medical records department at the Canberra Hospital requested "copies of all hospital records, medical reports, medical notes and any and all other information held by you pertaining to our client." That request was sufficient to include x-rays and the films of the intra operative x-rays taken during the surgery on 26 August 2008. Therefore, notwithstanding any usual practice which may exist in relation to the disclosure of records of the Canberra Hospital under the Records Act, the documents disclosed did not include all of the records that were required to be disclosed under the Act.

37. Also on 3 March 2009, the plaintiff's solicitors prepared a notice under s 51(1) of the Wrongs Act directed to the Canberra Hospital. The solicitors for the plaintiff could not prove from their records that the document was sent on that date and received no response to it. However on 24 January 2011 the solicitors for the plaintiff sent a copy of the Wrongs Act notice to both the hospital and to the ACT Government Solicitor. By letter dated 17 March 2011 the defendant's solicitors informed the plaintiff's solicitors that they were making arrangements for the clinical records from the Canberra Hospital to be provided and they would be provided to the plaintiff soon after they were received in accordance with the obligations under s 68 of the Wrongs Act. It is not necessary to consider this provision in detail. The defendant's solicitor agreed in cross-examination that the defendant at no stage asserted that there was some ground of exception or exclusion under the Wrongs Act that would entitle the defendant to withhold the image intensifier films.

38. Up until the hearing of the application, the solicitor for the defendant maintained the position that although the image intensifier films were not disclosed in the defendant's affidavit of discovery "[t]he Territory does not concede that the [image intensifier film] was a document relating directly or indirectly to a matter in issue in the proceeding." However, during the course of the cross-examination, the solicitor for the defendant accepted that it was a document that should have been produced on discovery. The latter position is the correct one and difficult to see how the defendant could maintain the position that it was not discoverable having regard to its denial, in relation to the operation of 26 August 2008, of everything, except for the fact that the plaintiff attended the Canberra Hospital on that occasion.

39. Notwithstanding the defendant's failure to disclose the material that it was required by law to disclose, the defendant contested whether or not there was a reasonable explanation for the delay. The defendant criticised the pleading that suggested that the k-wire tip was left in place on 16 September 2008 and criticised the failure by the plaintiff's solicitor to inspect the documents discovered by the defendant. The first of these criticisms is inappropriate having regard to the failure by the defendant to comply with its legal obligations. Had the image intensifier film been disclosed when the defendant was legally obliged to disclose it under the Records Act, the pleadings in the matter would almost certainly have been different. Second, although the failure to make an inspection of the discovered documents might not have been ideal, there was nothing to indicate that the documents provided on discovery were any different to those which had been provided pursuant to the Records Act or those which, I presume, were provided pursuant to s 68 of the Wrongs Act. There was certainly nothing in the list of documents provided by the defendant in August 2012 which would have suggested that they were any different. That list contained only one entry in the list of discoverable documents. That entry was "Canberra Hospital records for the Plaintiff" and identified the date of those documents as "Various". That manner of providing discovery was inadequate. It is a requirement of rule 608(2) that if any documents come within a "group of documents of the same kind" the list of documents must deal with the documents as a group. However, simply identifying the records in the way that was done in the present case fails to address one of the purposes of the list namely allowing a party or the Court to identify whether in fact a particular document has been discovered. For example, if there was subsequently a dispute as to whether or not the image intensifier film had been included in the defendant's list of documents it would be impossible for that to be determined on the basis of the list provided. That is because there is no indication of the volume or identity of the documents included in the list. That difficulty might be cured if the documents had, for the purposes of discovery, each been given a unique number and the total number of such documents disclosed in the list of documents. While I should not be taken as expressing any view on precisely the level of abstraction which may be applied in determining whether documents are within "a group of documents of the same kind", it is not self-evident that, for example, x-ray films are documents of the same kind as doctors' clinical notes. In the present case, the issue was not of great significance because it was uncontroversial that the image intensifier films were not within the scope of the records which were listed in the list of documents. It is only necessary to address it because counsel for the defendant, somewhat ambitiously, directed criticism at the plaintiff's solicitor for failing to inspect the documents on the defendant's list. Even if she had done so she would not have obtained the image intensifier film.

40. In terms of the period after the image intensifier film was disclosed to the plaintiff's solicitors on 26 March 2013, the conduct of the plaintiff in obtaining reports concerning the significance of that imagery and the making of the application for leave to amend have not reflected the degree of diligence in the prosecution of a case that might reasonably have been expected. There was no good explanation for why it took until 23 July 2013 to obtain the report of Ms Hunter or why it took until 19 December 2013 to send a briefing letter to Dr O'Keefe. In circumstances where proceedings had been on foot since 21 July 2011, one would expect that solicitors obtaining significant new information about their client's case almost two years after the commencement of proceedings would act quickly to obtain expert opinion on the significance of that and make any consequential application to the Court arising out of that opinion. Notwithstanding that the plaintiff's solicitors did not proceed in such a manner, in my view that is of only minor significance in relation to the application having regard to the fact that the plaintiff was only put in that position by reason of the defendant's failure to comply with its legal obligations.

41. I also record at this point that the plaintiff and his solicitor were criticised both in cross-examination and in submissions for failing to disclose to the defendant the possibility of an application for leave to amend the pleadings prior to the issue being raised at a directions hearing in December 2013. In my view, although there can be criticism of the speed at which the plaintiff's solicitors acted after receiving notice of the image intensifier films, the criticism of a failure to disclose a possible application for amendment prior to instructions being obtained to make such an application was unwarranted and inconsistent with the defendant's own approach. To criticise the plaintiff's solicitor on that basis while at the same time maintaining in correspondence in relation to the present application the firm position that the defendant had no obligation to indicate the grounds upon which the application for leave to amend would be opposed, reflected an inconsistency in the approach of the defendant which was inappropriate.

42. In summary, while there can be some criticism of the manner in which the plaintiff has investigated and advanced his case since disclosure of the image intensifier film in March 2013, because the failure to disclose that film was contrary to the defendant's legal obligations the necessity to amend the pleadings at this stage has been reasonably explained.

43. As indicated above, the defendant submitted that the relevant limitation period expired three years after the operation on 26 August 2008, namely at the end of 26 August 2011. That was on the basis that s 16B(2)(b) of the Limitation Act 1985 applied. That is a straightforward limitation period of three years from the injury. The plaintiff submitted that the relevant limitation period was that provided for in s 16B(2)(a) which ran from either 26 March 2013 or the dates of either of the reports of Ms Hunter or Dr O'Keefe, because it was only at that time that the plaintiff was aware that whatever injury he suffered by reason of the k-wire tip being left in place on 26 August 2008 was related to someone else's act or omission. On that view the limitation period would not have expired.

44. Having regard to the confused nature of the expert evidence, the manner in which the plaintiff's argument on s 16B(2)(b) was put was not very precise. However, it is not necessary to explore the plaintiff's contention in any detail because even if the limitation period had expired I would have found that it was open to the plaintiff to amend his pleadings pursuant to r 503(4) of the Court Procedures Rules because the proposed amended pleading arises out of substantially the same facts as a cause of action for which relief had already been claimed.

45. I adopt what I said in Naidu v Fergusson [2013] ACTSC 208 at [52]- [63] as to the approach to the very unsatisfactory phrase "arises out of... substantially the same facts as a cause of action for which relief has already been claimed in the proceeding".

46. In the present case the operation on 26 August 2008 had been pleaded and its conduct was already a fact in issue. It is correct to say that the allegations of a failure to remove the k-wire tip was alleged to have occurred on 16 September 2008 rather than 26 August 2008. However I accept the plaintiff's submission that the new allegation can be said to arise out of substantially the same facts because the operation on 26 August was already pleaded, was part of a course of treatment undertaken at the defendant's hospital by the defendant's staff and part of addressing the same injury which caused the plaintiff to originally attend the hospital. Even on a narrow view of the operation of rule 503(4) this was the sort of case at which the rule was directed and it clearly falls within its scope.

47. Therefore, the position is that either by reason of the operation of s 16B(2)(a) or by reason of the operation of r 503(4), it is open to the Court to grant leave to the plaintiff to amend the pleadings if it considers it appropriate to do so.

48. The emphasis that might be given to the issue of prejudice will differ depending upon whether or not the limitation period has expired. I have dealt with the limitation issue above on the approach most favourable to the defendant namely that the limitation period has expired and the plaintiff is forced to seek leave under the more onerous test provided in r 503(4). However, even adopting that approach, I am not satisfied that there is significant prejudice arising out of the lack of recollection of persons involved in the procedures deposed to by the solicitor for the defendant. It is not at all surprising that the doctors and nurses in question have no specific recollection of the operation or post-operative care of the plaintiff. That is not at all unusual in a medical negligence case. However the detailed records made during the course of the various procedures are available to the witnesses and reliance on those records in order to make sense of what occurred is likely to have been the position at any time other than immediately following the events in question. I am therefore not satisfied that there is any significant prejudice arising from the late amendment to the pleadings arising out of a deterioration in the recollection of witnesses.

49. The determinative issue in relation to this application is whether or not the plaintiff has demonstrated a sufficiently arguable case of negligence arising out of the conduct of the operation on 26 August 2008 or what occurred on 30 September 2008. For the purposes of the amendment application it is appropriate that the plaintiff demonstrate that there is an arguable case. In many cases that will not require much and it is clearly undesirable to turn the application for amendment into a mini trial of the plaintiff's case. The explanation for the late amendment will usually disclose the facts that have led to the amendment being made. In this case, as is common with many medical negligence cases, the amendment is based on the discovery of new information. However the discovery of new information per se does not necessarily disclose an arguable case. Whether or not there is an arguable case will often be dependent upon the existence of expert opinion consistent with the new information giving rise to a new or different basis for establishing liability.

50. In my view, as a consequence of the failure by the defendant to disclose the image intensifier films either pursuant to the Records Act, the Wrongs Act or pursuant to its obligations to provide discovery, if the plaintiff could demonstrate an arguable case of negligence based on the new material disclosed and the consequential better understanding by the plaintiff of what actually occurred, this would be a clear case in which leave to amend should be granted. However, as I describe below, the expert evidence provided by the plaintiff does not demonstrate to me, to a sufficient degree to make it appropriate to grant the amendment an arguable case of negligence in relation to the performance of the operation on 26 August 2008 or the operation on 30 September 2008. I consider it inappropriate to grant, in effect, a speculative amendment of the pleadings more than two and a half years after the commencement of proceedings on the basis that at some unspecified time in the future, the plaintiff may be able to support the new claim with expert evidence.

51. In the present case the expert material relied upon was two reports of Dr O'Keefe, an orthopaedic surgeon, and a report of Ms Hunter, a registered nurse. In order to understand the unsatisfactory position in which the plaintiff now finds himself it is necessary to understand Dr O'Keefe's reports. The unfortunate conclusion is that the poor expression of the doctor's reports and the inability of the plaintiff to obtain clarification of his reports means that whether or not a case of negligence is disclosed is a matter, at best, of speculation.

52. There are four stages in the evolution of the plaintiff's reliance upon the report's of Dr O'Keefe:

c. the position adopted in relation to the application to reopen; and

d. the position adopted at the point at which leave was granted to reopen.

53. The first stage is his report of 20 January 2014. Although this report contains some internal inconsistencies and is confusingly expressed for a layperson, it would on its face support an arguable case of negligence. In relation to the surgery undertaken on 26 August 2008 he says (in answer to question two):

Whether [the broken k-wire] was removed then or at a later stage is not particularly important in the absence of infection, but if it was removed initially it is unlikely to have developed into an abscess as all other metal had been removed.

54. He said also in relation to the surgery on 26 August 2008 (in answer to question three): "ideally the broken K wire should have been seen and removed at this stage."

55. My comments at this stage are that the reference to removal of the k-wire being "not particularly important" and the reference to it "ideally" having been removed are both inconsistent with there having been a breach of duty in the failure to do so. Failure to live up to an ideal standard is not the same as failing to reach the standard of a reasonably competent practitioner. However the statement that if it had been removed it would not have developed into an abscess begs the question why its removal was not important if it had been seen. That question remains unanswered.

56. Continuing on the same theme he said (in answer to question five):

As percutaneous pinning was used in order to be able to remove [the k-wires] without a [general anaesthetic] in the future, it would have made sense to remove the broken K-wire tip at the time as it is unlikely to be able to remove it in future without another [general anaesthetic].

57. Once again the reference to the fact that "it would have made sense" to remove the k-wire is not indicative that a failure to do so fell below a reasonable standard of care. However, the balance of the sentence does beg the question why it would not be a breach of duty to fail to remove the k-wire if the failure to do so would require the patient to undergo an otherwise unnecessary general anaesthetic. These apparent contradictions are not explained.

58. In relation to whether or not the k-wire tip should have been seen on the image intensifier Dr O'Keefe commented (in answer to question six which itself was confusingly drafted):

Any competent Surgeon or Registrar should have seen the broken K-wire in situ on [the image intensifier] films and made and documented what decision was made about removing it at the time or leaving it in-situ.

59. This statement is consistent with there having been negligence in failing to see the k-wire tip on the image intensifier films during the course of the operation on 26 August 2008. However the balance of the sentence suggests that it might be reasonable to leave the k-wire tip in place so long as its existence and the reasons for leaving it there were documented.

60. In relation to the presentation on 30 September 2008 and the x-ray which showed the broken k-wire in situ he said:

Ideally this should have been removed surgically at that stage but for reasons that are unclear it didn't happen until the third operation on 2/10/08.

10. In my opinion did the attending surgeon(s) on 26th of August 2008 achieve an appropriate standard of care in the treatment of Mr Kenjar in failing to:

(A) observe the presence of the broken K-wire tip on intraoperative imaging intensifier x-rays taken that day; and

(B) remove the same in the course of the procedure;

62. These answers are clearly indicative of an opinion that there was a breach of duty in failing to see the k-wire tip and take steps to have it removed during the operation on 26 August 2008.

63. He was invited to provide any other comments or information. He said:

The infection was not caused by the broken K-wire left in-situ, but is a common post-operative complication of any internal fixation. It is a different matter however if there is definite infection AFTER the other (percutaneous) fixation has been removed and it is apparent that there is a residual foreign body in the wound which will continue to harbour infection, and in this case it was almost certainly the cause of the abscess that resulted and required drainage on 30/9/08 and again on 2/10/08.

64. Although this is not clear it does indicate that the k-wire tip was the cause of the abscess. It is not clear how that conclusion relates back to what should have been done during the operation on 26 August 2008.

65. In summary while there is a significant degree of internal confusion and poorly explained reasoning in the report of Dr O'Keefe, the answer to question 10 was apparently clearly supportive of an arguable claim of negligence in failing to identify and remove the k-wire tip during the operation on 26 August 2008.

66. The second stage in the evolution of the plaintiff's reliance upon Dr O'Keefe is his report of 4 March 2014. Because of the internal inconsistencies within the report, which were pointed out in correspondence from the defendant's solicitors on 3 March 2014, the solicitors for the plaintiff requested a supplementary report from Dr O'Keefe asking him, in particular, whether he adhered to the answers to question 10 set out above at [61], and inviting him to make any further comments. It also asked him in relation to the operation on 30 September 2008 whether the attending surgeon achieved an appropriate standard of care in the treatment of the plaintiff in failing to:

a. observe the presence of the broken k-wire tip on intra-operative x-rays taken at that point; and

67. In his supplementary report of 4 March 2014 Dr O'Keefe says:

Further to your urgent Supp request of 4th of March 2013 [sic], I have read my previous report and I have made an error in answering Question 10 a & b in that I thought it was the second operation on 30/9/08 that I was being asked about:

11. IN MY OPINION DID THE ATTENDING SURGEON(s) ON 26TH AUGUST 2008 ACHIEVE AN APPROPRIATE STANDARD OF CARE IN THE TREATMENT OF MR KENJAR IN FAILING TO:

(a) observe the presence of the broken K-wire tip on intraoperative image intensifier x-rays taken that day; and

(b) remove the same in the course of the procedure;

ANSWER: YES to (a) in that it wasn't particularly relevant at that stage, and provisionally Yes to (b) on the condition that if it was noticed at the time, the reasons for leaving it in-situ were documented (taking into account that the infection supervened).

68. In relation to the second question that he was asked which related to the operation of 30 September 2008, although the question is set out in his report, inexplicably, no answer or response is provided. It is possible that having clarified that the answer previously given to question 10 was intended to relate to the operation on 30 September 2008 he did not consider that he needed to answer the question although, in the light of the fact that there is simply no response set out in the additional report, that is speculation on my part.

69. While the answer to what Dr O'Keefe describes as question 11 in his report of 4 March 2014 is not particularly clear, it appears to be inconsistent with the proposition that there was negligence involved in the operation on 26 August 2008. How his answer to question 11(a) which does not suggest negligence in any failure to notice the broken k-wire tip fits with his answer to question 6 in his earlier report where he says that "Any competent Surgeon or Registrar should have seen the broken K-wire" is unclear.

70. The third stage of the plaintiff's reliance on Dr O'Keefe's reports is a letter from the plaintiff's solicitor to the defendant's solicitor dated 19 March 2014 at the point when the plaintiff was seeking leave to reopen his case which provides, relevantly:

The plaintiff no longer relies on the reports of Dr O'Keefe dated 20 January 2014 and 4 March 2014.

Our application is made solely on the reports of Ms Hunter.

71. The fourth stage of the plaintiff's position in relation to Dr O'Keefe's reports is a letter from the plaintiff's solicitor to the defendant's solicitor dated 26 March 2014 which provides:

We refer to the reports of Dr O'Keefe dated 20 January 2014 and 4 March 2014.

Following the hearing of the application the author spoke to Dr O'Keefe to clarify the discrepancy with respect to his opinion regarding the surgery on 26 August 2008.

Dr O'Keefe has confirmed that his view is properly expressed in the later report of 4 March 2014.

We will not be seeking any further report from Dr O'Keefe.

72. Thus, by the time of the hearing of the application to reopen the plaintiff's case on the application, the position of the plaintiff was that he did rely upon the reports of Dr O'Keefe in their existing terms without further explanation.

73. Although the status of Ms Hunter in relation to the case is not made clear by the evidence, it appears that she was engaged as a forensic consultant to the plaintiff's solicitors and was asked "to consider Mr Kenjar's records to ascertain whether or not there may be a case to pursue regarding the interventions for an injury to his right hand that he sustained on 24 August 2008." She does not appear to have been briefed as an expert witness and did not indicate compliance with the expert witness code of conduct in her report. In her report she reported as follows:

3. Was the failure to fully remove the k-wire a result of negligence by any particular doctor, and if so, who?

The k-wire removal procedure is not the source of Mr Kenjar's problem. However, the leaving of the foreign object - assumed a fragment of k-wire, on the day of his first surgical intervention is inexcusable, and contributes to unnecessary suffering and repeat surgical interventions... .

It is expected that a consultant performs a role of educator for registrars (Dr Patel for this admission) to oversee the work of registrar(s) (Doctors Rimal and Karanth), although the consultant may not necessarily be at the registrars elbow throughout an operation; but the processes should be reviewed by the consultant before any operation is concluded. In the case of Mr Kenjar, I believe that the presence of the K-wire fragment should have been noted by the consultant, and it then would have been sought and removed before the patient was taken from the operating theatre.

On 30 September 2008, Dr Rimal proceeded to re-open Mr Kenjar's hand and irrigate the wound under general anaesthetic. The presence of the fragment of K-wire should have been noted, and it sought and removed during the operative procedure, thus negating the subsequent general anaesthetic and surgical intervention on 4 October 2013.

Overall, the consequences and harm caused by the leaving of the K-wire fragment behind after the operation are negative, delaying Mr Kenjar's recovery - with or without infection. Its removal subjected him to two additional surgical and anaesthetic interventions that should not have been required.

74. While Ms Hunter's report was most likely included in the evidence initially as an explanation of the process undertaken by the plaintiff's solicitors between first discovery of the image intensifier film and the application to amend, as is made clear by the correspondence above, by the end of the application very significant reliance was placed upon Ms Hunter's report as a basis for finding an arguable case of negligence on the part of the defendant. I am not satisfied that the opinion of an experienced nurse provides an appropriate basis for finding an arguable case of negligence in relation to the conduct of an orthopaedic surgeon in a case like this when the evidence of an orthopaedic surgeon appears to be inconsistent with it.

75. Leaving broken bits of fixation devices inside the body of a patient and apparently failing to see them when they are clearly shown on the image intensifier films are clearly matters which give rise to concern. However, as the decision in Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 illustrates, the fact that an item is incorrectly left inside a patient does not necessarily prove negligence on the part of the surgeon. Similarly, the incoherent state of the expert evidence leaves me with a sense of unease that perhaps the strength of the plaintiff's case is not properly reflected in the reports of Dr O'Keefe. However neither questions arising as to why pieces of k-wire were left inside the plaintiff nor the unease arising out of the unsatisfactory state of expert evidence is sufficient to persuade me that it is appropriate to grant leave to allow the amendments to proceed.

76. Insofar as the proposed additional particulars of negligence deal with the third procedure on 30 September 2008, the position is as follows. It appears that when first reviewed by Dr Rimal, the doctor considered that the x-ray taken that day showed no abnormalities. It is not clear from the records whether that remained the doctor's view during the course of the operation. There is no record in the operation report that the tip of the k-wire was identified although the wound was left open and, by 2 October 2008, the k-wire tip had been identified on the x-ray. However the evidence of the plaintiff in his affidavit of 19 March 2014 set out at [21] above, is inconsistent with a failure to observe the k-wire before the surgery was completed on 30 September 2008. The evidence of the plaintiff is consistent with the k-wire fragment having been observed and being a target for the surgery. There is no expert evidence that indicates that the failure to find and extract the k-wire disclosed on the x-ray was in breach of the doctor's duty. In the light of the now confused state of Dr O'Keefe's evidence, I am not satisfied that leave should be granted when to do so would be on the basis that the plaintiff's own evidence is incorrect or mistaken.

77. Because of these conclusions, I am not satisfied that it is appropriate to grant the plaintiff leave to amend his pleadings. Therefore the orders that I make are:

1. The application dated 5 February 2014 is dismissed.

2. The proceedings are listed on 2 May 2014 at 10 am for any argument in relation to costs and for further directions.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

Solicitors for the plaintiff: Blumers Personal Injury Lawyers

Solicitors for the defendant: ACT Government Solicitor