King v SESAHS

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

18475/93 MONIQUE FRANCES KING by her tutor MICHELE KING v SOUTH EASTERN SYDNEY AREA HEALTH SERVICE & ANOR

JUDGMENT 1 HIS HONOUR: The plaintiff, Monique Frances King, has brought proceedings against the first defendant, South Eastern Sydney Area Health Service, and the second defendant, Richard O'Gorman Hughes as the executor of the estate of the late Professor Darcy O'Gorman Hughes, and claims damages for negligence concerning treatment provided to the plaintiff at the Prince of Wales Hospital in 1989. Each of the defendants deny liability. 2 The second defendant has now applied by notice of motion for an order that the jury be dispensed with. In making that application the second defendant is supported by the first defendant but the plaintiff, who requisitioned a jury to try this cause, resists the order now sought. 3 These proceedings were commenced in 1993 and the plaintiff filed her requisition for trial by jury on 11 October 1993. Since that time of course the Courts Legislation Amendment (Civil Juries) Act, 2001 (to which I shall refer as the "Civil Juries Act") has been enacted and by that Act the earlier provisions concerning trial by jury to be found in ss 85-89 of the Supreme Court Act, 1970 were repealed. However, a saving provision in the Civil Juries Act reserves those earlier provisions of the Supreme Court Act 1970 concerning "proceedings commenced but not finally determined before the commencement of that amendment as if the section had not been amended". The Civil Juries Act commenced in 18 January 2002. 4 For relevant purposes then, s 85(1) of the Supreme Court Act provided: "Subject to sections 86, 87 and 88, proceedings in any Division shall be tried without a jury, unless the court otherwise orders…" 5 Section 86 provided, so far as is relevant: "86. (1) In proceedings on a common law claim, except proceedings to which either section 87 or 88 applies, issues of fact shall, if any party files a requisition for trial with a jury and pays the fee prescribed by the regulations made under section 130, be tried with a jury." 6 Section 87 created a different regime for running down cases and s 88 was concerned with common law claims involving issues of fact on a charge of fraud or on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage. 7 Section 89 provided for trial of issues of fact without a jury: "89. (1) In any proceedings on a common law claim (except proceedings to which section 88 applies) the court may order, despite sections 85, 86, and 87, that all or any issues of fact be tried without a jury." 8 There is therefore a significant difference in the position concerning trial by jury prior to the Civil Juries Act of 2001 and the position since that Act commenced. Where, as in this case, the plaintiff requisitioned a jury in proceedings that commenced but which were not finally determined before the commencement of the Civil Juries Act, the cause is to be tried with a jury unless the court makes an order to the contrary under s 89, and it is for the moving party to satisfy the court that there are circumstances particular to this case which require that an order should be made that the jury be dispensed with. The onus is on the second defendant who has filed this notice of motion to satisfy the Court that the plaintiff should be deprived of trial by jury. 9 The Court is being asked to exercise a discretion under s 89. In Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Samuels JA said at 413: "Accordingly, in order to make good an application to dispense with the jury it is not enough to point to the supposed deficiencies of jury trial. It is necessary to show grounds which are particular to the case in hand. These may of course be produced by the pressure of singular circumstances upon the general nature of a jury trial…" (Emphasis added) 10 Before making the order sought I must be satisfied "that there are circumstances particular to the case in hand which require an order to be made in order that justice be done between the parties": again see Pambula per Samuels JA at 414. 11 In the affidavit sworn on 23 January 2003 by Mr Donald Munro, the solicitor for the second defendant, the nature of the treatment which the plaintiff underwent is described and those features of the case relied upon by the second defendant for the purposes of s 89(1) are identified. 12 The plaintiff in this cause had a soft tissue undifferentiated sarcoma in the cervical region excised. The claim against the late Professor O'Gorman Hughes is concerned with advice and treatment given in relation to radiotherapy of the tumour bed, intrathecal therapy and systemic adjuvant chemotherapy. 13 Following excision of the sarcoma the plaintiff underwent radiotherapy from early March 1989 and the administration of drugs for adjuvant chemotherapy and intrathecal therapy. That first cycle of treatment ended in mid April 1989 but it was followed by what Mr Munro has referred to as the first maintenance cycle of treatment which commenced on 26 April 1989 and which involved chemotherapy and intrathecal therapy. That cycle ended on 11 July 1989. 14 The second maintenance cycle of treatment began six days later and involved only chemotherapy. However on 28 July 1989 the plaintiff was admitted to hospital with a four day history of progressive weakness in the lower limbs. There were a number of admissions to hospital throughout the balance of 1989 for investigation into the cause of that weakness. Tragically, the plaintiff became a quadriplegic. 15 The plaintiff makes many allegations of negligence against the defendants but for present purposes it suffices that I refer to those set out by Mr Munro in para 14 of his affidavit. The acts or omissions there particularised are as follows: "(a) failed to warn her of the risks associated with treatment, in particular the risk of quadriplegia;

(b) identified the soft tissue sarcoma as being at a meningeal site when in fact the tumour was paraspinal;

(c) failed to positively identify clinical signs of meningeal disease such as cranial palsies;

(d) prescribed Methotrexate, Cytarabine, and Hydrocortisone when they ought to have known such treatment carried a risk of paraesthesia;

(e) prescribed intrathecal therapy in a case of extradural cord compression;

(f) embarked on a course of intrathecal chemotherapy without any clear guidelines as to its use in respect of paraspinal soft tissue sarcoma;

(g) failed to warn the plaintiff of the potential toxicity of a combination of intrathecal drugs, the administration of systemic Actinomycin-D and spinal radiotherapy and, in particular, that such treatment could result in severe myelopathy;

(h) adopted a protocol for the treatment of the plaintiff's condition which was inappropriate for intrathecal therapy;

(j) failed to amend the protocol to take into account the American Intergroup Rhabdomyosarcoma Studies ('IRS') in relation to the treatment of central nervous system prophylaxis because of known toxic consequences;

(k) failed to keep abreast of the clinical and laboratory evidence relating to radiosensitisation induced by Actinomycin-D affecting the central nervous system;

(l) failed to diagnose the plaintiff as suffering from post-irradiation transient myelopathy precipitated by chemotherapy containing Actinomycin-D;

(m) delayed treatment for the plaintiff following signs of spinal cord dysfunction, in particular the use of Dexamethasone, thereby increasing the likelihood or possibility of quadriplegia developing; and

(n) maintained inappropriate therapy after the plaintiff complained of progressive weakness in her limbs." 16 In para 15 of his affidavit Mr Munro identified medical issues concerning liability and causation to be addressed by experts at the trial including: "(a) whether the tumour was an extradural tumour or had permeated the dura;

(b) whether the tumour was an undifferentiated sarcoma or a benign neurofibroma, or some other type;

(c) whether in the light of the pathology report available at the time, it was reasonable for the clinicians to treat it on the basis that it was malignant;

(d) whether it was appropriate to use the Protocol for Rhabdomyosarcoma when this was an intradural sarcoma and, if so, whether the Protocol should have been adopted to the different situation;

(e) the status and development of the Protocol at the time of the treatment;

(f) the appropriate drugs, or therapy generally, to use, given the number of drugs which can be used intrathecally is limited;

(g) whether giving the first two doses of Actinomycin D at 600mcg rather than 400mcg made any difference to the outcome;

(h) whether the time separation between the conclusion of the radiotherapy and the commencement of Actinomycin D was appropriate to have allowed any radiosensitising effect to be dissipated;

(i) whether the damage to the plaintiff's spinal cord was an idiosyncratic radiation recall reaction relating to the Actinomycin D;

(j) whether the reaction to Actinomycin D could have been predicted;

(k) if the answer to (i) is in the negative, what the cause was of the damage to the plaintiff's spinal cord;

(l) on the assumption that there was negligence in the plaintiff's treatment, how much worse off the plaintiff was compared with the deficit she would have suffered from the tumour itself and its appropriate treatment;

(m) whether it was appropriate to use Dexamethasone when urological symptoms appeared and, if so, at what stage of the development of the symptoms." 17 Mr Munro has deposed to the many medical reports served by the plaintiff on the issue of liability. These come from seven sources. Reports have been served from five doctors in the United States of America, one doctor from Melbourne and one doctor from Sydney. 18 The second defendant has served expert reports from three sources. One of these doctors comes from America, a second from the United Kingdom and the third from Sydney. 19 Mr Munro envisages that the jury would be required to consider a large volume of medical literature as well as the oral evidence of the experts. 20 Mr Munro estimates that the hearing would occupy between six to ten weeks with a jury but approximately four to five weeks without a jury. I observe immediately as to this consideration that the fact that the trial may take longer because a jury is involved is not as such a reason for dispensing with the jury. What is required is that grounds be established which are particular to the circumstances of this case and which require an order that the jury be dispensed with so that justice may be done between the parties. 21 Mr Davies submitted, consistently with Mr Munro's affidavit, that the medical issues are complex, and in particular he emphasised the following:

(i) to begin with there is an issue as to the type of tumour the plaintiff had;

(ii) then there is the issue as to whether the tumour was near the spine or whether it invaded the spine;

(iii) there is the issue (identified in para 15(d) of Mr Munro's affidavit) as to whether it was appropriate to use the protocol used if the plaintiff was suffering from an intradural sarcoma, that is one in the meninx surrounding the spinal cord;

(iv) a difficult issue of foreseeability will arise;

(v) if the tumour had not been treated as it was, would the same result have occurred;

(vi) a question of complexity will arise as to the state of medical knowledge in Australia at the time of this treatment. 22 In short Mr Davies submitted that the complexity of the medical issues made this an altogether unsuitable case for trial by jury. 23 Mr Kalfus supported Mr Davies' submissions, emphasising the complexity of the issue of causation and the difficulty in distinguishing the state of knowledge in this country from that overseas, and in particular in the United States, at the relevant time. Mr Kalfus submitted it would be extremely difficult to distil the issues sufficiently for the purposes of trial by jury. 24 Mr Blacket on the other hand, whilst acknowledging that issues of scientific complexity arose, submitted that the plaintiff's case was not as complex as the defendants claimed it to be, and, indeed, put simply, the plaintiff's case was that the treatment given was the wrong treatment. Further, it was contended that the plaintiff was given the wrong dosage of drugs during the period of her treatment. Mr Blacket submitted that there was a well settled and appropriate protocol prescribed in 1987 and in use before the plaintiff came under the defendants' care, and this was not followed in the plaintiff's treatment. The requisite knowledge as to the correct form of treatment was available in Australia, at the very least through access to overseas literature. Moreover, at least since Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 the admissibility of evidence of foreign experts has been settled. 25 Mr Blacket further submitted that from the plaintiff's point of view at least the fact that medical evidence was to come from overseas did not present an insurmountable problem. The only expert that Mr Blacket identified that he was going to call from overseas was Dr Bleyer, who was available to come from Texas to give evidence at the trial. Mr Blacket also intended to call Dr Berry, who is the director of the Cancer Therapy Centre at the Liverpool Health Service, Sydney. 26 Finally, Mr Blacket submitted that the second defendant has failed to discharge the onus upon him on this application. 27 Because of the plaintiff's quadriplegia the issue of damages will require a deal of attention at the trial, but nothing has been placed before this Court such as would persuade me that those issues of damages would render this case an unsuitable one for trial by jury. Juries are commonly called upon to deal with the issue of assessment of damages in substantial claims involving many components. 28 I return to a consideration of the issues that arise on liability. 29 Mr Munro's affidavit introduces for consideration the possibility that witnesses may be required to give evidence on videolink. If that problem arises it would arise whether the trial is trial by judge alone or trial by jury. Mr Blacket's submissions do not indicate that the plaintiff would be wanting to call evidence from a witness via videolink and whilst the defendant has identified two witnesses he may wish to call, one from Washington and one from London, there is no evidence that these two witnesses could not come to Sydney to give evidence if need be. 30 I am not satisfied that there is any witness who a party would wish to call who cannot be called to give evidence in Sydney. 31 Mr Munro makes reference in his affidavit to the need that may arise for the jury to review medical literature. If there were to be a need ultimately for the jury to look at some medical literature, no doubt the fact that the material was to be tendered for consideration by a jury rather than a judge would tend to bring about the result of limiting so far as possible the extent of such a tender. Tender of literature would probably be more selective if trial was to be by jury rather than by judge alone. Moreover, if medical literature was placed before the jury, counsel at the trial would be well equipped to draw the jury's attention to those features of the literature such as were being relied upon by either the plaintiff or the defendants as the case may be, and the trial judge could assist the jury further in the summing up concerning how that literature was to be used. Of course, I have not been shown on this application the very literature which Mr Munro had in mind when preparing his affidavit but I am not convinced that the possible necessity to tender extracts from medical or scientific writings would be beyond the capacity of a jury to absorb and assess. 32 The critical issue on which the outcome of this motion in my opinion depends is an assessment of those medical issues identified in Mr Munro's affidavit and in Mr Davies' submissions. I reserved my decision on this matter for the purpose of studying a folder of medical reports described as the defendant's tender bundle. That folder contains reports from Dr Haas-Kogan, Dr Berry, Dr Sarah Donaldson, Dr Raney, Dr Bleyer, Dr D'Angio, Dr Plowman, Dr Smee and Associate Professor Kellie. 33 A reading of that material to my mind warrants the analysis made by Mr Munro in para 15 of his affidavit and by Mr Davies in his oral submissions. The issues at trial would require the jury to absorb and understand complex terminology and complex medical issues, including regimes of treatment, their objectives and their effect. The jury would also have to develop an understanding of difficult issues arising in relation to foreseeability and causation. 34 In Combined Excavations & Supplies v Bowis [2000] NSWCA 298 the decision of the District Court judge to dispense with a jury was challenged on appeal. The appeal was successful. Similar issues arose under the counterpart in the District Courts Act to s 89 of the Supreme Court Act (namely s 79A of the District Courts Act). 35 In Combined Excavations the Chief Justice, at para 13, adopted the test expressed by Samuels JA in Pambula and referred to by me earlier in this judgment (at paras 9 and 10): "In my opinion, what is required is the application of a test such as that which Samuels JA described in Pambula as 'singular circumstances' or 'specific difficulties' with respect to a particular case that do not arise in the general case. These are matters of fact and degree on which differences of opinion are to be expected. I do not propose this test as a universally applicable formula. I adopt these words as a convenient formulation to distinguish a case in which something more appears than the difficulties usually attendant on a jury trial." 36 In his judgment in Combined Excavations, Davies AJA said at para 85: " A jury should not be dispensed with unless there is a factor in the particular case of sufficient weight to overcome the right to a jury trial. This will not occur unless there is a factor which transcends the usual problems encountered with jury trials. The complexity of the particular case , or a need for expedition, or the impracticability of bringing a witness or witnesses to Sydney, and like matters, may provide such a factor ; but the factor must be a weighty one, for the entitlement to a jury trial is an important right, not lightly to be set aside . In his reasons for judgment in this case, the Chief Justice has referred to terminology such as 'unusual feature' , ' significant and special burden' , ' singular circumstances' and ' specific difficulties' . I would not adopt any specific terminology, for s 79A does not use it. However, because the right is an important one, I would not expect a jury to be dispensed with unless there was a factor having attributes to which some such description was appropriate." (Emphasis added) 37 Notwithstanding Mr Blacket's submissions to the contrary, I have concluded that the complexities of the issues that must be addressed in this case are such as would, adopting the language of Davies AJA above, "transcend the usual problems encountered with jury trials". In my opinion, the complexities of the issues in this case are such that the relevant evidence may not be fully absorbed or fully appreciated by a jury, and in the result the risk of there being a miscarriage of justice in a jury trial is significantly greater than the risk that would attend trial by a judge sitting alone. Accordingly, I am satisfied that the orders sought by the defendants should be made in order that justice may be done.

Formal orders 38 1. Order that the jury be dispensed with.

2. Costs of the motion are reserved. **********

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