Plaintiff v Defendant

2 The plaintiff is a young girl, born in 2005, who developed a cystic brain tumour. This brain tumour has resulted in significant and permanent intellectual and physical impairments. She sues the local council which operated the child and maternal health centre she attended in the months and years after her birth.

3 Amongst other tests and investigations, the maternal and child health centre nurses measured the plaintiff's head circumference. The plaintiff alleges that from 10 July 2006 until 29 April 2007 her head circumference abnormally increased in size. The plaintiff further alleges that during this period she progressively developed neurological symptoms and eventually underwent urgent investigations which established that she had a large solid and cystic mass which was displacing the fourth ventricle and causing substantial brain stem and cerebella compression.

4 The plaintiff's case is that the defendant, by its servants or agents, was negligent in failing to adequately assess the plaintiff, advise her parents of any abnormal features, and refer her for review by an appropriate medical practitioner or specialist. The plaintiff alleges that as a result of the negligence she has suffered injury, including 'aggravation and exacerbation of cystic tumour'.

5 In summary, the plaintiff alleges that if the brain tumour had been identified earlier, she could have avoided some or all of the permanent injuries she has sustained.

6 The proceeding was issued on 27 July 2017. On 31 October 2017 the plaintiff filed an Amended Statement of Claim to allege additional injuries that resulted in a degree of permanent impairment greater than 5%, as required to establish a serious injury under the Wrongs Act 1958 (Vic).

7 In its Defence filed 24 November 2018 the defendant denies that it was negligent and denies that it was the cause of the plaintiff's injuries. After filing its Defence, the defendant changed solicitors, and the first directions hearing was delayed as a result. On 8 March 2018 I fixed the proceeding for trial on 20 May 2019 and made the consent orders proposed by the parties. This timetable required the parties to exchange expert material by 16 September 2018 and attend a mediation by 12 October 2018.

8 By consent, that timetable was varied on 29 October 2018 to allow the defendants to file an Amended Defence and extend the date for mediation to 14 December 2018.

9 On 24 October 2018 the defendant filed an Amended Defence in which it denied that the plaintiff's increase in head circumference required review or assessment by a paediatrician or neurologist and further denied that the tumour was the cause of the plaintiff's increase in head circumference.

10 The parties had a dispute about the adequacy of the plaintiff's answers to interrogatories, which was dealt with by Associate Justice Ierodiaconou on 7 December 2018, and the time for mediation was extended again to 28 February 2019.

11 Following the mediation, the parties attended a post mediation directions hearing on 15 March 2019. At that directions hearing, counsel for the plaintiff informed the Court that his client sought an adjournment of the trial date as a result of matters that had arisen during the mediation.

12 The defendant had not been notified of the proposed application and opposed it. The plaintiff was granted leave to file an amended statement of claim, which was not opposed by the defendant, and informed that any application to vacate the trial date would have to be made formally, that is by summons with an affidavit in support.

13 On 18 March 2018 the plaintiff filed a Second Amended Statement of Claim and on 20 March 2018 the defendant filed its Defence to that claim. The amendments to the Statement of Claim:

(a) reduce the period in issue from 10 October 2005 to April 2007, to the period 10 October 2005 to 10 October 2006;

(b) amend the stated measurement of the plaintiff's head circumference on 10 October 2006 from 47.5cm to 48.5cm.

(c) add an allegation that a general practitioner was amongst the people that the plaintiff should have been referred to for review or assessment;

(d) add an allegation that the plaintiff's parents were not informed of the extent and increase in the size of the plaintiff's head circumference; and

(e) add allegations that the defendant failed to correctly and accurately plot and record the increase in the plaintiff's head circumference in the maternal health record, recording the head circumference as 46.5cm on 10 October 2006 when in fact it was 48.5cm on that date.

14 Save that the defendant admits that the plaintiff's head circumference was measured by the defendant and recorded at 48.5cm on 10 October 2006, it denies the other new allegations.

15 It is clear from the pleading that at least the following matters are in issue in this case:

(a) Whether the defendant accurately and adequately measured the plaintiff's head circumference;

(b) Whether those measurements were such that a reasonable maternal and child health service would have referred the plaintiff for an assessment or review with some other professional such as a general practitioner or a neurologist;

(c) At what point, if any, such a referral should have been made;

(d) Whether the plaintiff's brain tumour could and should have been diagnosed, had such a referral been made;

(e) Whether the plaintiff's brain tumour had any impact on her head circumference;

(f) Whether an earlier diagnosis of the brain tumour would have had any, and if so what, bearing on the plaintiff's outcome.

16 In support of her application to vacate the trial, the plaintiff relied on an affidavit of her solicitor, Mr Prasad, dated 21 March 2019. In that affidavit Mr Prasad states that:

A number of issues were raised at Mediation which are required to be urgently addressed in preparation of the Plaintiff's case. It became clear at Mediation as a result of the issues raised, that the Plaintiff could not proceed to Trial on the basis of the present evidence.

Following Mediation, Senior Counsel's advice was that the following further expert reports are required:

1. a report from a maternal health centre specialist in respect to liability;
2. a report from the operating neurosurgeon with a re-examination, the report dealing with the specific issue as to the extent to which a delay in diagnosis and ultimate (sic) surgery has contributed to the Plaintiff's ongoing disabilities/impairment, as opposed to what the Plaintiff's disabilities/impairments would have been, in any event, had there been an earlier diagnosis;

1. that the operating neurosurgeon has not seen the Plaintiff for some years and a re-examination and address (sic) of the issues referred to in paragraph (b) above is critical and essential to the Plaintiff's case;

1. a report is required from an oncologist for opinion as to the extent to which the tumour and hydrocephalus would have progressed and increased in size in the almost seven-month period which the Plaintiff relies upon as being an unreasonable delay in diagnosis, and ultimately treatment;
2. a report is to be obtained from an independent neurosurgeon as to the extent to which the surgery which was undertaken upon the Plaintiff was likely to have been more difficult, more complex and was likely to have resulted in a greater loss of the left cerebellar because of the delay...;
3. There is already a report of a paediatric neurologist but in that report, there was an error in the information provided to him in respect to the date upon which the Plaintiff's head circumference was measured....;
4. A report is to be obtained from a general practitioner in relation to liability based upon...what a reasonable general practitioner would have considered appropriate;
5. a workplace occupational rehabilitation consultant will also be required to provide an opinion in respect to the Plaintiff's prospects of employment...;
6. Further, when reports are received...their opinions....will need to be put to the experts in relation to the claim for special damages so that the experts can respond based upon the specific degree of impairment which has resulted from the delay.

17 It is not entirely clear what expert material the plaintiff has obtained to date, as nothing has been filed with the Court. Based on the expert material filed by the defendant, it appears that the plaintiff has served reports from experts in neurosurgery, paediatric neuropsychology, paediatric neurology, occupational therapy, and education.

18 The defendant has filed reports from an occupational therapist, a maternal and child health nurse, and a paediatric neurosurgeon.

19 From the material before the Court I cannot assess what steps the plaintiff's lawyers have taken to obtain relevant and appropriate expert opinions. Based on the affidavit of Mr Prasad it appears that the expert evidence obtained to date does not include:

(a) an opinion from a maternal and child health specialist, in particular one who can opine on the reasonableness or otherwise of the care provided by the defendant;

(b) an opinion about the plaintiff's likely outcome had the diagnosis been made earlier;

(c) an opinion about the likely progression of the tumour over the period during which the plaintiff alleges that the defendant failed to appropriately refer her for further investigation;

(d) an opinion as to whether earlier surgery would have resulted in less loss of the cerebellar and, if so, the consequences for the plaintiff;

(e) an opinion from a paediatric neurologist based on correct head circumference measurements;

(f) an opinion about the plaintiff's employment prospects given her disability.

20 The Court accepts that medical negligence claims are often complex and frequently require opinions from expert witnesses in numerous fields of expertise. Claims involving a delay in diagnosis are particularly complex, as the plaintiff has to establish not only that the delay was unreasonable in all the circumstances, but that it has caused an injury.

21 Further, the Court accepts that matters can arise at mediation which require the parties to undertake further investigations. On occasion parties will identify a deficiency in one or more aspects of their case which needs to be rectified before the matter can progress further.

22 It is for just this reason that, where possible, the Court tries to set a timetable that ensures that parties mediate some time prior to the trial date. Then, if issues do arise at mediation, the trial date is not jeopardised.

23 However, the Court does, and must, draw a distinction between the sorts of matters that arise at mediation that parties could not reasonably have foreseen and prepared for, and the present case. The former might include cases where there are new developments, for example in the plaintiff's condition, or where additional material has become available, for example because of new research findings.

24 In the present case, the matters that are said to have arisen as a result of the mediation, and thus required the vacation of the trial date are, in fact, matters that were squarely in issue at the outset of the case based on the pleadings.

25 This leads me to conclude that, in attending the mediation, the plaintiff's claim was underprepared and there was little realistic prospect that, if the matter did not settle, she could be ready to fully prosecute her claim at trial.

26 Had the parties reached an agreement to settle the matter at mediation, it is difficult to see how the compromise of the claim would be capable of being approved by the Court, as is required under the Rules. Unless the defendant made an admission of liability, the Court would need to assess the prospects that the plaintiff would win her claim in negligence, which would require the opinion of a maternal and child health nurse, especially as the defendants have filed a report which says that the defendant did not depart from the expected standard of care. The Court could not assess whether the compromise was appropriate without expert opinion about whether her condition was worsened by the delay and without evidence about the plaintiff's future employment prospects.

27 The defendant urged me not to vacate the trial date on the basis that the plaintiff's lawyers had breached their obligations pursuant to the Civil Procedure Act 2010 (Vic), including their obligations to cooperate, to use reasonable endeavours to resolve the dispute, to narrow the issues in dispute, and to minimise delay.

28 The defendant says that if the trial date is vacated it will suffer actual prejudice due to the likelihood that it will have to obtain further expert opinion in response, it will have ongoing and increased legal costs and the actual people involved in the case, being maternal and child health nurses, will be under prolonged stress.

29 The Court accepts that delay can cause prejudice to a party that cannot be remedied by costs orders. In Aon Risk Services v Australian National University (2009) 239 CLR 175 the High Court found that delay could cause irreparable prejudice to a party.

30 I accept that the delay of this matter is likely to cause greater stress to the individual or individuals who will give evidence and whose conduct will be under scrutiny on behalf of the defendant.

31 The defendant's counsel further submitted that the trial date ought not be vacated because, in the event that the plaintiff lost her proceeding because her case was unable to be fully prosecuted given the state of preparation, she would have a viable claim against her solicitors in negligence.

32 Finally, the defendant's counsel submitted that vacating the trial date in this case, in these circumstances, would send a message to practitioners that a failure to adequately prepare for mediation and trial was without real risk, as the Court would be prepared to adjourn the trial.

33 The application required me to balance the competing considerations, and to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) to facilitate the just, efficient, timely, and cost-effective resolution of the real issues in dispute.

34 The factors weighing in favour of the plaintiff are the prejudice to her in the event that her claim was forced to proceed without proper preparation and her claim that her case could not be properly prepared without expert opinion about at least two crucial matters:

(a) whether the conduct of the maternal and child health nurse or nurses met the standard reasonably to be expected of such nurses in 2006; and

(b) whether any delay caused or contributed to any of the injuries that she had suffered.

35 Those factors weighing in favour of the defendant are a compelling argument that the plaintiff's lawyers had simply failed to properly prepare the case, that the plaintiff had a viable avenue to pursue against her solicitors in the event that she was unsuccessful at trial, and that case management principles instituted in this and other Courts ought to curtail the plaintiff's ability to obtain an adjournment in these circumstances.

36 Balancing all these factors, I decided that the prejudice to the plaintiff in not being able to properly prosecute her case due to the absence of crucial expert opinions outweighed the other considerations.

37 In making this assessment I was mindful of the following matters:

(a) the plaintiff is a minor, who sues by way of a litigation guardian, her father. She cannot be held responsible for any of the delay or lack of appropriate prosecution of her case;

(b) in the event that the plaintiff was forced to trial and was unsuccessful, any claim she had against her lawyers in negligence would necessarily be compromised by the underlying uncertainty as to the outcome of a properly prepared case. The claim is disputed on all grounds. The plaintiff might be unable to prove that the defendant was negligent. The plaintiff might be able to establish negligence, but not that it caused her any injury. Alternatively she might be able to establish that she suffered an injury but not the extent of the loss claimed. In a jury trial the reasons for success or failure or the quantum of damages awarded will not be known and will impact on any potential claim against her solicitors;

(c) costs orders against the plaintiff's solicitors, rather than the plaintiff, will ameliorate the risk that practitioners will consider that they can fail to adequately prepare for trial without significant consequence.

38 Having regard to the particular nature of this case, in which the expert material now sought is neither unusual nor unexpected and which one would expect a competent solicitor to have identified as necessary at the outset, I consider that it is appropriate to make the costs order against the plaintiff's solicitors on an indemnity basis.