Panagiotopoulos v Rajendram & Anor

Court of Appeal (NSW)|2005-04-06|Before: Mason P, Hodgson JA, Ms J

Introduction Following leave granted on 21 July 2004, the appellant has appealed against the decision of Williams DCJ dismissing the appellant's proceedings in the District Court.

5 The proceedings below involved a claim by the appellant for damages for nervous shock. As pleaded in his statement of claim, the appellant claimed that he had suffered severe nervous shock as a result of the death of his wife, Angela Panagiotopoulos, and that her death had been occasioned by the negligence of the first and second respondents.

6 The background to those proceedings is as follows. On 11 June 1996, Mrs Panagiotopoulos had consulted the first respondent complaining of vaginal and anal pain. The first respondent referred her to the second respondent, a general surgeon. Mrs Panagiotopoulos saw the second respondent and arrangements were made for her to undergo a sigmoidoscopy under general anaesthetic. The second respondent performed that sigmoidoscopy on 8 July 1996, but it could not be carried out beyond 12 centimetres into the anal canal due to the presence of faeces in the bowel. The second defendant did not attempt the procedure again but saw Mrs Panagiotopoulos on two further occasions, and, following the last occasion, he suggested to the first defendant that she consult another specialist. On 2 October 1996 Mrs Panagiotopoulos saw Dr Rajendram, and on 4 October 1996, a CT scan of her abdomen was carried out. On 9 October 1996, Mrs Panagiotopoulos had an ultrasound, which identified malignant tumours, and following upon further investigation, she underwent surgery at Royal Prince Alfred Hospital on 23 October 1996, followed by a course of chemotherapy, and, on 11 March 1997, further surgery for the removal of tumours from her liver. On 1 September 1998, one of her treating doctors at the hospital reported that she had developed pulmonary metastasis. On 22 March 1999, Mrs Panagiotopoulos died. The appellant's evidentiary difficulties

7 The appellant was initially represented by a solicitor, but on 6 May 2003, that solicitor ceased to act, and thereafter the appellant proceeded in person and he appeared unrepresented at the hearing before the primary judge.

8 The appellant was required to comply with pt 28 r 9B of the District Court Rules 1973 ("the Rules") which relevantly provides as follows: "(1) A person instituting a professional negligence claim (other than a claim against a barrister or a solicitor) must, unless the Court otherwise orders, file and serve, with the statement of claim or cross-claim instituting the professional negligence claim, an expert's report or experts' reports which includes or include an opinion supporting: (a) breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged. (2) …… (3) If a party fails to comply with subrule (1) or (2), the Court may by order, on the application of a party or of its own motion dismiss the whole or any part of the proceedings (including a cross-claim), as may be appropriate. (4) In this rule: expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question,, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence. professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (eg dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister. professional negligence claim means a claim in the Court for damages, indemnity or contribution based on an assertion of professional negligence, whether made by statement of claim or by cross-claim."

9 In compliance with another rule dealing with particulars of claim (pt 9 r 27) the appellant had filed and served reports from four doctors, namely, the report of Dr Michael Solomon, a colorectal surgeon, dated 1 September 1998, a report of Dr Jonathan Carter, a gynaecological oncologist, dated 24 January 1999, two reports of Dr George Takas, a psychiatrist, dated respectively 28 June 1999 and 29 May 2000, and a report of Dr Peter Papadakis, a general practitioner, dated 6 October 1999.

10 However, the respondents asserted that these reports did not amount to compliance with pt 28 r 9B of the Rules because none of these reports amounted to evidence of a breach of duty of care by the respondents, nor evidence of a causal relationship between the breach of duty of care alleged and the damage claimed by the appellant. That assertion was repeatedly brought to the attention of the appellant's then solicitor and the appellant. According to the affidavit of Ruanne Carola Hutchins, once the solicitors for the respondents, that assertion was made at the status conference that took place on 21 January 2002, by letter to appellant's solicitor on 4 February 2002, at the directions hearing on 12 March 2002, at a further directions hearing on 18 February 2003, by letter to the appellant's solicitors on 6 May 2003, and by letter to the appellant himself on 9 May 2003.

11 The respondents endeavoured to bring the proceedings to an end on the basis of non-compliance with pt 28 r 9B. By notice of motion (of which notice was given to the appellant on 6 June 2003), they sought an order to this effect, but on 16 June 2003 that motion was dismissed by consent. The respondents filed a further notice of motion seeking such an order, which was heard by Bowden DCJ on 29 August 2003. His Honour declined to make the order sought. He dismissed the motion, and made it clear that the matter was to proceed to hearing on the dates that had by then been fixed for that purpose and that the proceedings were not to be further adjourned. The Health Care Complaints Commission

12 On 10 May 2000, the appellant complained to the Health Care Complaints Commission ("the HCCC") about the treatment of Mrs Panagiotopolous by the second respondent. The HCCC investigated that complaint, and in the course of that investigation obtained the expert advice of an independent doctor ("the peer reviewer") under s 30 of the Health Care Complaints Act 1993 ("the Act"). Section 30 relevantly provides as follows:- ""(1) In investigating a complaint, the Commission may obtain a report from a person (including a person registered under a health registration Act) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint. (2) ……….. (3) ………. (4) Such a report may be used in disciplinary or related proceedings under a health registration Act but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made. (5) A person from whom such a report is obtained may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings. (6) …….. 13 Following its investigation the HCCC wrote to the appellant (in an undated and unsigned letter) advising him of the result of that investigation and sending him a copy of the investigation report dated 23 August 2003.

14 In its letter, the HCCC set out its conclusion as follows: "The Commission should make the following comments to Dr Carmalt on the matter that was the subject of the complaint: Your treatment of Mrs Panagiotopoulos fell below an adequate standard in that: You should have arranged a subsequent examination of the bowel after your first attempt had been unsuccessful due to faecal loading. You should have explicitly advised the General Practitioner to refer Mrs Panagiotopoulos for a colonoscopy in your correspondence to the General Practitioner.

15 In its investigation report, the HCCC noted the expert advice from the peer reviewer in the following terms: "In a peer review report dated 27 August 2001 the reviewer makes the following points: . The peer reviewer is moderately critical of Dr Carmalt's service to Mrs Panagiotopoulos on the following grounds: . Dr Carmalt should have considered a colonoscopy necessary when considering Mrs Panagiotopoulos's age, recent excessive flatulence, iron deficiency and rectal bleeding which was not anal. . It was logically inconsistent for Dr Carmalt not to arrange a subsequent examination of the bowel after his first attempt had been unsuccessful due to faecal loading. . Dr Carmalt should have explicitly advised the General Practitioner to refer Mrs Panagiotopoulos for colonoscopy in his letter to the General Practitioner. . The peer reviewer identified some mitigating factors in relation to his criticism: . Mr Panagiotopoulos's hostile aggressive attitude. . The language barrier. . Non compliance with medical advice. . Mrs Panagiotopoulos's symptoms were not a typical presentation for a patient with a bowel tumour. . The peer reviewer states, "….this patient's tumour was clearly incurable at the time Dr Carmalt first saw her."

16 The proceedings were set down for hearing over four days, commencing on 20 October 2003. It is necessary to traverse in some detail the course that the hearing took.

17 The first relevant matter was that the appellant indicated to the court that he intended to rely on documents produced on subpoena from the HCCC. In particular, the appellant indicated that he intended to rely on the report of the peer reviewer. The respondents' counsel foreshadowed that he would object to the tender of those documents.

18 The second relevant matter was that the appellant indicated that he intended to call his two daughters to give evidence.

19 At this point, the respondents' counsel made an oral application for dismissal of the proceedings under pt 28 r 9B.

20 Some discussion thence ensued between the Bench and the appellant as to the appellant's evidence. He repeated that he intended to call his two daughters, and to rely on the documents from the HCCC. Counsel for the respondents formally objected to the tender of those documents upon the basis set out in s 30(4) of the Act.

21 The primary judge pointed out to the appellant that the peer reviewer's report could not, as a result of the operation of s 30(4), be tendered in the proceedings. Thereupon the appellant made an application for adjournment of the proceedings stating that he wished to find a doctor to give evidence and to get the HCCC to give evidence as well. The respondents' counsel opposed this adjournment application. After hearing submissions from counsel for the respondents, the primary judge asked the appellant if he had anything more to say, and the appellant replied that he wanted a chance to prove his case. After some further debate, the primary judge refused to grant the adjournment.

22 The primary judge then turned to the oral application for dismissal under pt 28 r 9B. Before proceeding to rule upon it, he admitted into evidence the letter to the appellant from the HCCC outlining its investigation, and its investigation report dated 23 August 2002. He had earlier admitted into evidence some medical reports tendered by the respondents, namely, two reports from Dr Alastair Brown, a consultant surgeon, dated respectively 14 May 2002 and 17 October 2002, two reports from Associate Professor John Boyages, an oncologist, dated respectively 4 December 2002 and 30 April 2003, and a report from Dr Lisa Brown, a psychiatrist, dated 21 November 2002.

23 His Honour then delivered judgment, dismissing the proceedings with costs. On pp 6-7, his Honour said: "This matter has been on foot for quite a long period of time. The defendants have pointed out to the plaintiff, when he was represented and subsequently and indeed the court has pointed out to him on a number of occasions, that he needs to be able to prove the essential ingredient in this matter, namely the relationship between any negligence, if there is any, on the part of the doctors and his wife's untimely death and that has not been the case. Indeed, the Part 9 Rule 27 particulars, which were dated 21 May 2001, in no way come near to establishing the plaintiff's cause of action. They go to some extent to establish the damage that he has sustained by view of nervous shock but even that is problematical because the plaintiff would have extreme difficulty in proving that his wife's death could have been avoided by her being diagnosed some four or five months earlier than she was and I am satisfied on the evidence that I have got here before me, that just cannot be done and is unlikely to be able to be done. The order that I propose to make is that the proceedings are dismissed."

24 In the summary of argument that the appellant himself filed in this court, he stated that the basis for his appeal was that he had not had a fair hearing in that, in dismissing the proceedings, the primary judge had denied the appellant a chance to be heard on his claim.

25 The grounds of appeal were, however, articulated more precisely by Ms Merkel, who appeared for the appellant on the hearing of the appeal. She submitted that the primary judge: (1) erred in the exercise of his discretion to refuse the appellant' application for adjournment on the basis of his premature conclusion that the appellant's case was hopeless and could never succeed;

(2) erred in dismissing the proceedings under pt 28 r 9B in circumstances where no formal notice of motion seeking such an order had been filed and served, and no informal notice of such an application had been brought to the appellant's attention; and

(3) misunderstood the basis upon which the appellant's claim was founded, namely, that by reason of the negligent failure of the second respondents to diagnose the cancer from which Mrs Panagiotopolous suffered, she was deprived of a chance of a better outcome and underwent severe suffering, both of which consequences caused the psychiatric damage suffered by the appellant. Did the primary judge err?

26 During the hearing before the primary judge, the appellant understood, perhaps for the first time, that s 30(4) of the Act prevented him from tendering and relying on the peer reviewer's report. His reaction was to apply for an adjournment of the proceedings.

27 The appellant had been on notice of the difficulty he faced in seeking to rely on the peer reviewer's report. According to the affidavit of Anne Carole Sullivan, one of the solicitors acting for the respondents, she had a telephone conversation with the appellant on 30 May 2003, in which she told him that he might not be able to rely upon the HCCC documents. Additionally, in his judgment dismissing the respondents' notice of motion, Judge Bowden had pointed out that the HCCC documents might not have been admissible, and that, in any event, those documents did not satisfy pt 28 r 9B because they had not been served in the proceedings, either at the time of the institution of the proceedings or later. Furthermore, Judge Bowden had based his decision to dismiss the respondents' notice of motion at least partly on his view that, in the circumstances of the case, the "…matter should take its turn in the list on 20 October…" His Honour had expressed the opinion that the proceedings should not be adjourned on the day that they were to come on for hearing.

28 These matters may have amounted to a sufficient basis for the primary judge to refuse the adjournment application. But his Honour did not refer to them. Instead, he based his refusal on his conclusion that the proceedings were hopeless and would remain hopeless. His Honour had some debate with the appellant about the lack of proof of the appellant's case. The following exchange then ensued: His Honour: I'm not prepared to adjourn the case.

Plaintiff: You're not prepared to adjourn the case.

His Honour: Because quite frankly I think the prospects of you getting anyone to come forward --

Plaintiff: Is minimal to zero. His Honour: Minimal to zero.

29 There is no doubt that, on the evidence available to the appellant at the hearing, his case was weak, but in my opinion there is no absolute certainty that it would have failed. There were a number of matters that a court could properly have taken into account in weighing up whether or not the appellant could have made out his case. They were as follows: (1) There was evidence that, on the face of it, would support a finding that the respondents had failed to diagnose Mrs Panagiatopolous' cancer whilst she was under their care between July 1996 and October 1996. The history of the respondents' treatment of her in that period appears in the investigation report of the HCCC (which was available and was tendered before the primary judge, albeit probably not admissible at a trial to prove the truth of its contents) and briefly in the report of Dr Carter (also in evidence). (It is to be noted that the history is set out in some detail in the report of Associate Professor Boyages, but that report was tendered in the respondents' case and not in the plaintiff's case);

(2) The HCCC investigation report indicated that, after the first sigmoidoscopy had failed, the second respondent had not attempted a further sigmoidoscopy with the patient properly prepared and the appellant could probably have obtained admissible evidence of this;

(3) Both the letter from the HCCC and its investigation report suggested that the second respondent's treatment of Mrs Panagiatopolous " fell below an adequate standard" and the appellant may have been able to obtain admissible evidence to this effect (see below);

(4) There was also evidence that may have fallen from the appellant himself, and from his two daughters, had they been called. They may have been able to give evidence of the pain and suffering of Mrs Panagiotopolous in the period between July and October 1996 whilst her condition remained undiagnosed, and the appellant's distress at observing his wife's condition during this period;

(5) There was also uncertainty as to the forensic course the respondents may have chosen to adopt having regard to evidence that may have been given by the appellant and his daughters. The respondents may have chosen to give evidence themselves, and been subject to cross-examination.

(6) In his two reports, Dr Takas expressed the opinion that the appellant's psychiatric illness was at least in some part a consequence of the appellant's response to the failure to diagnose his wife's condition and to her suffering over the period between July and October 1996. In his first report, dated 28 June 1999, Dr Takas stated that the appellant was "… going through an acute bereavement reaction which has been quite complicated by the incidents surrounding the initial diagnosis…" In his second report, dated 29 May 2000, Dr Takas noted the appellant's concern about the " missed diagnosis" of his wife, and he noted that, as a result of his wife's death and of "… the alleged lack of optimal treatment for her…" the appellant was in a state of " acute psycho-emotional agitation…" 30 In saying that all this evidence was available or potentially available, I have not overlooked the statement made to the primary judge by counsel for the respondents to the effect that the appellant had informed the respondents' solicitors that he did not intend to rely on the four medical reports that he had filed and served pursuant to pt 9 r 27. Counsel's statement was apparently based upon a telephone call between Ms Hutchins and the appellant on 25 July 2003 deposed to in her affidavit dated 9 February 2005 and filed in this court. In an affidavit dated 4 November 2004 filed in this court, the appellant explained that he did not understand the implications of what was said to the primary judge by counsel for the respondents. He said that he had telephoned the respondents' solicitor, because he did not understand why subpoenas had been served upon the four doctors giving those reports, and was upset and angry that the subpoenas had been served, but that he did in fact intend to rely on those medical reports. The fact that he did intend to rely on them may have become clear had the case proceeded to trial. 31 Even on the evidence I have outlined, the appellant's case was weak. There are a number of reasons why this was so. First, the evidence I have outlined had not been tested by cross-examination or otherwise at least unless he obtained the co-operation of the peer reviewer or another expert who gave a similar opinion. Secondly, the appellant would have had to succeed in his case without direct expert medical evidence as to breach of a duty of care on the part of the respondents. It might have been a case where the acts speak for themselves, that is, the appellant may have been able to rely on the maxim, res ipsa loquitur. But it is rare for medical negligence cases to succeed on this ground - see the discussion by Giles JA in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 223-235. Thirdly, the appellant would also have needed to seek and to obtain leave from the primary judge to amend the particulars of his claim so as to assert the case that it now appears he puts forwards - namely, that the respondents were negligent in failing to diagnose his wife's condition, which led to her loss of a better outcome and her suffering, which in turn resulted in his nervous shock. That would give rise to further discretionary considerations, and its outcome would not be certain. 32 Weak though the appellant's case appears, nevertheless I do not think it was doomed to fail. The available material, together with the uncertainty of what evidence might have been adduced from the appellant himself and his two daughters, as well as the uncertainty of whether the respondents would have elected to give evidence and if they did what evidence they may have given, are matters which dispel any notion of a definite and certain outcome (cf General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 at 128-129). 33 Furthermore, there is no doubt that the appellant was profoundly ignorant of the rules of evidence and procedure. He seems to have understood his cause of action, but to have had little idea about how to overcome his evidentiary and procedural difficulties. This put him at a disadvantage, and entitled him at least to some limited advice and assistance (Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438). The predicament he faced as a consequence of the operation of s 30 of the Act provides an example. The records of the HCCC had been produced on subpoena and the identity of the peer reviewer was known to the primary judge, and presumably also to the appellant and to counsel for the respondents. The appellant could not have compelled the peer reviewer to give evidence (s 30(5)), but no doubt he could have either sought the peer reviewer's cooperation, or have used the documents from the HCCC to endeavour to persuade another medical expert to provide an opinion similar to that of the peer reviewer. Had this course been pointed out to him, the appellant may have been able to pursue it urgently while the hearing was on foot over the four days fixed for that purpose. All this underpins the uncertainty of the appellant's case, and the difficulty of concluding that his case was hopeless and would remain hopeless. 34 Against the background I have outlined, the primary judge proceeded to entertain and decide the respondents' application for dismissal under pt 28 r 9B. Having refused to adjourn the proceedings, the primary judge was faced with circumstances where: . the appellant had appeared in person, ready to present his case, such as it was; . there had at that point been no compliance with pt 28 r 9B on the part of the appellant; . the respondents' application for dismissal of the proceedings under pt 28 r 9B was not in compliance with the rules because it was not made upon a formal notice of motion as required by pt 16 r2, nor had the appellant received any informal notice that such an application would be made; . the appellant understood, apparently for the first time, that s 30(4) of the Act stood in the way of reliance by him on the peer reviewer's report; . the appellant was a litigant in person, ignorant of the principles of practice and procedure which may have been available to him to overcome the evidentiary hurdles with which he was faced. 35 In all those circumstances, the striking out of the appellant's claim was harsh. The appellant was in breach of the rules, but the respondents' application for dismissal was also in breach of the rules. In my opinion, fairness to both parties demanded that some step other than dismissing the proceedings should have been taken. On the one hand, the appellant had received many warnings and indulgences in relation to his non-compliance with the rules, and that non-compliance persisted. But he had tried to obtain evidence, he had hoped to rely on the HCCC documents as proof of his case, and he intended to at least call his daughters and possibly to give evidence himself. On the other hand, the respondents were themselves in breach of the rules in regard to their application for dismissal of the proceedings, and that occurred in circumstances where they had already made a similar application before Bowden J which had been dismissed. 36 The decision to refuse an adjournment and to entertain and rule on the strike-out application involved an exercise of the primary judge's discretion. The question for this Court is whether, in exercising his discretion as he did, the primary judge fell into error so that his discretion miscarried (House v The King (1936) 55 CLR 499 at 505). In my opinion, having regard to all the circumstances I have outlined, his Honour did fall into error. I take into account particularly the circumstances that the case was set down for hearing, that the appellant, a litigant in person, was ready to proceed and wished to rely on evidence which he believed, erroneously, was available to him, and that he had no notice, formal or informal, that the proceedings were at risk of being struck out. In my opinion, it amounted to a denial of procedural fairness to refuse the appellant an adjournment, and then not to permit him to proceed with his case, by acceding to an application for summary dismissal not brought in accordance with the rules. 37 It seems to me that the primary judge had one of two avenues open to him. He could have proceeded to hear the case. The result may have been unfavourable to the appellant, since his case was weak, but the appellant would have had the opportunity, denied to him by the dismissal of the proceedings, of attempting to prove his case.

38 In the alternative, and especially having regard to the appellant becoming clearly aware of the operation of s 30(4) of the Act, the primary judge could have adjourned the proceedings by means, for example, of a self-executing order, that is, an order that the proceedings would automatically be dismissed at the expiration of a specified period of time, unless in the meantime the appellant satisfied the requirements of pt 28 r 9B or obtained an order dispensing with compliance with it. The respondents' position could have been protected by an order for costs in their favour and no doubt, if the appellant ultimately satisfied pt 28 r 9B by the filing and serving of appropriate evidence, directions could then have been made so as to place the respondents in the position of properly preparing to meet the case they had to face.

39 In the circumstances, I would uphold the appeal, and make a self-executing order of the kind I have described. I consider, however, that, since the order I propose amounts to an adjournment in favour of the appellant, he should pay the costs thrown away by reason of that adjournment. Accordingly, I would make the following orders:

The proceedings remitted to the District Court and adjourned to the date of hearing of any application brought under Order 4.

The proceedings are dismissed at the expiry of six months from the date of these orders, or such further time as the District Court may allow, unless in the meantime the appellant obtains an order that the matter proceed to trial on the basis that the experts' report referred to in Part 28 rule 9B have been served or that an order has been made dispensing with service of any or any further such reports.

The appellant to pay costs of the respondents thrown away by reason of the adjournment.

The respondents to pay the appellant's costs of the leave application and the appeal, and to have a Suitors' Fund Act certificate if otherwise qualified. 1*************

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CITATION: Panagiotopoulos v Rajendram & Anor [2005] NSWCA 58

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