Polsen v Harrison - [2020] NSWSC 1167 - NSWSC 2020 case summary — Zoe

NSWNSWSC

Polsen v Harrison

[2020] NSWSC 1167

Supreme Court of NSW|2020-07-16

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-07-16

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Judgment

HER HONOUR: By amended notice of motion filed 26 May 2020, the plaintiff seeks the following orders: 1. that leave be granted to file and serve the amended statement of claim ("ASC"); (2) that the orders made by the registrar on 16 April 2020 be reviewed pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), and that the orders made on 16 April 2020 be set aside and that the following orders be made in their place: that the time for service by the plaintiff of the reports of Dr Smith dated 4 December 2019; Dr Morris dated 21 November 2019; Dr Miller (two) dated 14 December 2019; Professor Korman dated 31 December 2019; Dr Mar Fan dated 10 December 2019; and Mr Jenkinson dated 20 April 2020 be extended to 23 December 2019. (3) that the time for service by the plaintiff of any further report(s) of Drs Miller, Mar Fan and/or Professor Morris be extended to 19 June 2020; and (4) that the plaintiff be granted leave to serve the quantum refresher report of Dr Smith dated 19 March 2020 and served on 17 April 2020.
The plaintiff is Katrina Marie Polsen. The defendant, Dr Richard Harrison, is a bariatric surgeon. The plaintiff relied on the affidavits of his solicitor Tonya Teresa Longmore dated 15 April, 23 April, 20 May, 11 June and 14 July 2020. The defendant relied upon two affidavits of his solicitor Kerrie Therese Chambers dated 15 April and 3 June 2020. The parties relied upon two volumes of joint court books.
The matter has a hearing date commencing on 15 February 2021 with an estimate of 12 days. To date, no expert joint conferences have taken place relating to either liability or quantum, nor has the matter been to mediation.

[2]

[3]

The pleadings

The claim as currently pleaded against the defendant is in negligence and breach of contract. It may be summarised as failure to carry out the gastric sleeve procedure competently, failure to diagnose the complications suffered by the plaintiff and failure to properly treat those complications.
The matter is complex in that it raises pre- and post-surgery issues, including the assessment of the plaintiff as a candidate for the gastric sleeve procedure, the manner in which it was conducted, the resultant complications and their management.
I will consider first the review of the registrar's decision, followed by whether to grant leave to file the amended statement of claim, and finally, what orders I should make in relation to the so-called reports in reply.
The plaintiff currently relies on the following expert reports: those of Dr Geoffrey Miller, specialist surgeon, dated 8 March 2016 and 23 October 2017; Mr Andrew Jenkinson, consultant bariatric surgeon, dated 10 June 2018; Professor David Morris, professor of surgery, dated 3 July 2016, 21 June 2017 and 18 September 2018; and Dr Michael Mar Fan, general and colorectal surgeon, dated 18 January 2019.
On 17 June 2019, the Court made an order that the defendant was to complete service of his expert liability and quantum evidence by 30 July 2019.
The defendant served the reports of Dr Craig Taylor, surgeon, dated 22 March 2017 and 24 May 2017; Dr Siddarth Sethi, gastroenterologist/hepatologist, dated 12 August 2017; Associate Professor Garrett Smith, surgeon, dated 1 June 2018 and 19 June 2019; two reports of Dr David Byrnes, gastroenterologist, dated 14 March 2017 and 26 February 2018; and two reports of Professor Wendy Brown, bariatric surgeon, dated 29 July 2019 and 4 August 2019.
The defendant served these reports on or before 30 July 2019 (within the timeframe), with the exception of the supplementary report of Professor Brown dated 4 August 2019 clarifying her earlier report, which was served on 6 August 2019.
On 13 February 2017, the defendant served a transcript of his notes. On 23 July 2018, he also served a report from a psychiatrist, Dr Anne-Marie Rees, dated 1 March 2017 (within the time frame).
On 7 August 2019, at a directions hearing, the registrar ordered the plaintiff to serve expert evidence in reply by 4 October 2019, and listed the matter for a directions hearing on 8 April 2020.
The plaintiff says that in reply to the liability evidence served by the defendant, she served the following reports: those of Dr Miller, two dated 14 December 2019 and served 23 December 2019, and one dated 25 May 2020 and served 4 June 2020; Dr Selwyn Smith, psychiatrist, dated 4 December 2019 and served 10 December 2019; Mr Jenkinson dated 3 April 2020 and 20 April 2020, both served 11 May 2020; Dr Morris, one dated 27 November 2019 and served 23 December 2019, and one dated 22 May 2020 and served 10 June 2020; Dr Mar Fan, one dated 10 October 2019 and served 6 December 2019, one dated 10 December 2019 and served 21 April 2020 when the solicitor became aware that there had been an error, and one dated 9 June 2020 and served 9 June 2020; and Professor Tony Korman, infectious diseases physician and medical microbiologist, dated 31 December 2019 and served 17 April 2020.
According to the plaintiff, the report of Mr Jenkinson dated 3 April 2020 is an updated version of his report dated 10 June 2018. Mr Jenkinson considered the update necessary to comply with his obligations pursuant to the expert code of conduct under Sch 7 of the UCPR. As such, the plaintiff stated that she does not intend it to be served as a report "in reply".
All of these reports in reply were served after the due date of 4 October 2019.

[6]

(1) The review of the registrar's decision

The plaintiff seeks a review of the decision of the registrar dated 16 April 2020 pursuant to UCPR 49.19. It reads: "49.19 Review of registrar's directions, certificates, orders, decisions and other acts If in any proceedings a registrar …, makes an order or decision or …, the court may, on application by any party, review the …, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit."
A review pursuant to UCPR 49.19 is not an appeal and is not subject to the restrictions that apply to appeals: Tomko v Palasty (No 2) [2007] NSWCA 369. It is not incumbent upon the applicant for review to demonstrate a material error of either fact or principle in the registrar's judgment under review: Solarus Projects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328 at [34]-[40]. However, the applicant must show that there is a reason to depart from the Registrar's decision: Tomko at [7].
On review, this Court is to make its own decision, having regard to the material that was before the registrar and such further evidence as the Court permits be adduced: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115.
The plaintiff submitted that in appropriate cases, a de novo rehearing is appropriate, depending upon the nature of the decision and the issues involved. Here, the decision has a significant impact on the plaintiff's substantive rights, namely terminating summarily any right that she may have to establish to damages beyond $750,000.00: Tomko at [9].
Hence, the approach I should take is that I should inform myself of the registrar's decision, along with all of the material before the registrar at the time it was made. I should then make my own decision based on the material before me, with the benefit of counsel's submissions.
Neither party objected to the defendant's expert reports, which were not before the registrar, as additional evidence before me. I granted leave to rely upon these documents. In fairness, these documents are important to the review of the registrar's decision. Also, since the registrar's decision was made, the plaintiff has sought to file an amended statement of claim which particularises what she says is contained in the medical reports in reply.

[8]

The plaintiff's submissions

The plaintiff submitted that the defendant did not inform counsel or the Court that it intended to make an application at the directions hearing on 16 April 2020. In the early afternoon of 15 April 2020, the plaintiff provided the defendant with proposed short minutes of order in relation to the directions hearing the following day. The defendant did not respond.
On 16 April 2020, counsel for the parties appeared at the directions hearing before the registrar by telephone due to COVID-19 restrictions. Pursuant to the proposed short minutes of order, the plaintiff sought an order for an extension of time to serve the report in reply of Mr Jenkinson, and for the matter to come back for further directions on 28 May 2020.
The plaintiff's counsel submitted that she sought an extension of time, as opposed to an order under UCPR 31.28, pursuant to the decision of Cavanagh J in Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265 ("Jackson") at [18]-[21]. Both the plaintiff's counsel and the defendant's senior counsel appeared in Jackson on 17 March 2020.
The plaintiff's counsel says that she was taken by surprise at the directions hearing when, without notice, senior counsel for the defendant indicated that he was making an interlocutory application (CB, p 174 at (T.2.15)). The application was that the registrar make orders as to the admissibility of the plaintiff's reports of Dr Smith dated 4 December 2019; Professor Morris dated 27 November 2019; and Dr Miller dated 14 December 2019. In the alternative, the defendant sought that the registrar make an order that the plaintiff file a notice of motion and any supporting affidavit to amend the statement of claim, and serve all reports to be relied upon for the purposes of the fresh allegations, and that those reports be served before the notice of motion.
According to the plaintiff, the defendant did not articulate on what basis its application was made with reference to the UCPR and/or Evidence Act 1995 (NSW), nor the source of the power said to be exercisable by the registrar in making the orders sought. At the time the defendant made its application, it did not provide the registrar with copies of its medical reports that had been served. Copies of the defendant's reports were not annexed to the affidavit of Ms Chalmers dated 15 April 2020 (CB, p 313). Even if it had, the plaintiff noted that the transcript for 16 April 2020 indicates that this affidavit was not read.
The plaintiff elected not to file a notice of motion as requested by the defendant and the defendant submitted that this would have been the proper course.

[9]

The defendant's submissions

The defendant's position concerning the registrar's decision is as follows.
Prior to the directions hearing on 16 April 2020, the defendant invited the plaintiff to file an application in relation to the further reports, said by the plaintiff to be in reply, so that the issue could be resolved (CB, p 242). The plaintiff declined to do so.
As to counsel for the plaintiff's statement that she was not informed that senior counsel for the defendant would be making an application on 16 April 2020, the defendant submitted that it is clear in correspondence between the plaintiff and defendant's solicitors prior to the directions hearing that the defendant did not consent to the plaintiff's reliance on further reports to the extent that they concerned new issues (CB, p 241).
At the directions hearing before the registrar on 16 April 2020, the defendant opposed the plaintiff's application for further time to serve what it had referred to as "evidence in reply" in its proposed short minutes of order (CB, p 173 (T 173.36-44); CB, p 163). The defendant indicated to the registrar that given the content of the reports, the plaintiff should not be granted an extension of time to serve those reports or that alternatively, given the content of those reports going to issues neither pleaded nor otherwise identified to the defendant as the proposed amended case, the plaintiff should be required to file a notice of motion seeking to amend the statement of claim and an supporting affidavit (CB, pp 174-175).
The defendant submitted that the ruling of the registrar was not as to the admissibility of evidence, as the plaintiff submitted. It was rather a decision that: 1. the reports were to be served in accordance with the order of the registrar, as they had not been served in accordance with that order or in accordance with any agreement between the parties (CB, p 181); 2. the reports were served out of time (CB, p 32); 3. the reports served out of time did not form evidence in reply (CB, pp 32; 181); 4. lines of inquiry made by the plaintiff's solicitor were new and not part of the primary case advanced by the plaintiff (CB, p 181); 5. the plaintiff had not yet served a report of Mr Jenkinson or a report of Dr Mar Fan, which he plaintiff would "potentially serve" and those reports would go to the new issue (CB, p 181); 6. the plaintiff was not to be precluded from making an application to rely on further reports, but the plaintiff would have to make an application by way of notice of motion (CB, p 181-182); and 7. contrary to the oral submission made by the plaintiff's counsel (CB, p 182), the application made on April 16 2020 was not the defendant's, nor did it concern the admissibility of evidence; rather, it was an application dealing with whether the plaintiff should be given leave to rely on reports which were being served out of time and which did not form evidence in reply (CB, p 183).
As such, the defendant submitted that the plaintiff's application to vary the registrar's decision should be rejected.

[10]

Does the registrar lack power to make the orders?

Section 3B of the Supreme Court Rules 1970 (NSW) sets out the registrar's powers. It reads: "3B Registrar may exercise certain powers and functions (1) Any power or function in relation to civil proceedings - (a) that is conferred on a registrar by a provision of these rules referred to in rule 2, or (b) that is conferred on a registrar by a provision of the Uniform Civil Procedure Rules 2005 referred to in rule 3, or (c) that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005, may be exercised by the registrar in relation to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and proceedings to which Division 2 applies. (2) This rule does not apply to a power or function that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005 if the instrument states, or necessarily implies, that the registrar may exercise the power or function in relation to civil proceedings only. (3) In this rule, civil proceedings has the same meaning as it has in the Civil Procedure Act 2005."
Section 13 of the Civil Procedure Act 2005 (NSW) reads: "13 Officers of the court may be authorised to exercise court's functions (1) The senior judicial officer of any court may, by instrument in writing - (a) direct that any function of the court under this Act or any other Act or law in respect of which the court has jurisdiction (including any rules of court) may be exercised by such registrars or other officers of the court, and in such circumstances and subject to such conditions, as are specified in the instrument, and (b) vary or revoke any such instrument. (2) This section does not limit any provision of the Act by which the court is constituted with respect to the exercise of the court's functions."
The Civil Procedure Regulation 2017 (NSW) refers to the delegation to registrars under s 13 of the Civil Procedure Act. On 17 December 2018, the Chief Justice, pursuant to s 13 of the Civil Procedure Act, directed: "that a registrar of the Court (including a person acting as the registrar or as a deputy to the registrar) may exercise the functions of the Court as stated in Parts 1 and 3 of the schedule to this direction."
Under the schedule, the registrar has power under Part 2 of the Uniform Civil Procedure Rules in relation to case management generally,
In my view, the registrar made directions that the plaintiff was not entitled to rely on any evidence in reply for two reasons. The first was because the time frame for doing so had expired. The second was that they did not form evidence in reply.
In Jackson, Cavanagh J at [18]-[20] agreed that UCPR 31.20(4) was not the source of the power the registrar was exercising for the service of medical reports. Rule 31.28(4) of the UCPR requires the plaintiff to establish that there are exceptional circumstances. This ground of review fails.
Before I turn to consider the next ground of review that the plaintiff was denied procedural fairness, I will first set out the defendant's expert reports, followed by the plaintiff's reports which are said to be in reply.
I will then consider the plaintiff's application to amend the statement of claim, which she submitted regularises the issues raised in her reports "in reply".

[16]

Dr Anne-Marie Rees, psychiatrist, dated 1 March 2017

Dr Anne-Marie Rees, psychiatrist, provided a report to the defendant dated 1 March 2017. In it, Dr Rees stated: "In terms of her mental health, she said she was distressed from the beginning. … She volunteered that she had taken antidepressants when her mother had died. This was about 15 years ago [2002]. … She was having pain in her hands and thumb and back and she was treated with a medication for about a month, which appears to have been Methotrexate. … It would be useful to note what medication she [had] specifically been on in the early part of 2013/2014. … It would be useful to clarify how long her opiate use had been occurring, particularly on a regular basis, prior to gastric sleeve operation… On 28 January 2014 [the defendant] noted that Methotrexate 10mg tablets had been ceased… I am assuming that she actually continued with this therefore, through the gastric sleeve surgery and the complications related to this, and depression can be associated with this medication. … "…but I note she also had chronic pain before because of her back and pain in multiple areas of her body just prior to the gastric sleeve surgery, which has been diagnosed as rheumatoid arthritis. She was at this time being prescribed opiate-based medications and it was unclear as to how regularly she was taking this, because according to the GP notes it would suggest this was regular and significant medication to reduce her pain as opposed to taking a few Panadol here and there… … There therefore appears to be a pre-existing chronic pain condition and opiate use… She did have a previous depressive episode after her mother died and she is likely to have had complex bereavement because of the complex relationship with her mother and her mother was an alcoholic… and this has continued 15 years prior to the gastric sleeve operation. Therefore she would have had some vulnerabilities from her childhood experiences and with her previous depression. The use of Methotrexate was also occurring just prior and potentially in the early stages of the gastric sleeve operation and problems."
Under the heading "Drug and Alcohol History", Dr Rees also wrote: "She denied any problems in the past or alcohol problems. This was rechecked related to the note from Dr Chow considering that she may have alcoholic liver cirrhosis and she denied that she had used alcohol excessively in the past. …She described both parents as alcoholics."

[25]

Are these reports in reply?

It is the defendant's case in these proceedings that the medical reports on which the plaintiff seeks to rely raise new issues, and cannot be said to be "in reply" to the primary evidence.
There are four broad issues addressed in the plaintiff's further reports which the defendant submitted are novel to the plaintiff's case. Those issues are firstly, the plaintiff's alcohol consumption; secondly, her medication use; thirdly, psychiatric assessment; and finally, referral for an educational course.
I have set out the defendant's medical reports and the plaintiff's further medical reports in detail. In his own medical notes concerning the plaintiff dated 13 February 2017, the defendant recorded that she was drinking 750 ml of wine per day and that he had discussed her intake of liquid calories (CB, p 581). The plaintiff's alcohol consumption was also raised in the report of Dr Sethi dated 12 August 2017, Dr Brown dated 29 July 2019, and Dr Rees dated 1 March 2017, as extracted earlier.
As to the plaintiff's use of medication, the defendant in his notes dated 13 February 2017 recorded that the plaintiff was taking Methotrexate (abbreviated as "MTX") and Thyroxine (CB, p 582). Drs Brown and Rees also raised these issues in their reports in some detail.
Drs Sethi and Brown, as well as Dr Taylor in his report dated 22 March 2017 and Associate Professor Smith in his report dated 1 June 2018, consider the issue of referring the plaintiff for a pre-operative education course.
Finally, the reports of Drs Sethi and Rees address the issue of psychological counseling.
For these reasons, it is my view that the evidence served in the plaintiff's further reports of Dr Smith dated 4 December 2019 concerning psychological counseling; Dr Mar Fan dated 10 December 2019 concerning psychological assessment and education, and 9 June 2020 concerning alcohol consumption; Mr Jenkinson dated 3 April 2020 concerning medication use and 20 April 2020 concerning psychological assessment; Dr Miller dated 14 December 2019 concerning education and psychological assessment and 25 May 2020 concerning alcohol consumption; and Dr Morris dated 27 November 2019 concerning education and psychological assessments and 22 May 2020 concerning alcohol consumption; concern issues which arose from evidence previously served by the defendant. As such, the plaintiff's further medical reports are in reply.
While I appreciate the importance of the parties complying with directions, there remain 7 months before the trial. In my view, these reports should have been allowed and the time for serving them should have been extended.

[28]

Leave to file the amended statement of claim

The plaintiff seeks leave to file an amended statement of claim. The relevant amendments sought to be relied upon are to the following allegations in negligence at [17] (CB, pp 8-9): "16. The injuries, loss and/or damage suffered by the Plaintiff have been caused by the negligence of the first defendant. 17. PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT … t. Failure to properly consider the plaintiff's alcohol intake prior to the gastric sleeve surgery. u. Failure to exclude the plaintiff as a candidate for the gastric sleeve procedure on the basis of her alcohol dependence and/or consumption and/or pre-surgery medication. v. Failure to refer the plaintiff to an educational course prior to gastric sleeve surgery; w. Failure to ensure the plaintiff underwent appropriate psychiatric and psychological assessment and counselling prior to the gastric sleeve surgery. x. Failure to examine the plaintiff prior to discharge on or about 25 July 2013. y. Failure to provide closer follow up following the plaintiff's discharge on or about 25 July 2013."
UCPR 14.17 reads: "14.17 New matter may be raised in pleading A party may plead any matter even if the matter has arisen after the commencement of the proceedings."
UCPR 19.1 reads: "19.1 Amending a statement of claim (1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial. … (3) A plaintiff's right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22."
Sections 56(1), 57, 58 and 64 of the Civil Procedure Act are relevant to this application. They relevantly read: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings…. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects- (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, (c) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding- (a) whether to make any order or direction for the management of proceedings, including (i) any order for the amendment of a document, and … (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court- (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant- (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 64 Amendment of documents generally (1) At any stage of proceedings, the court may order- (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. …"
The plaintiff also referred to Practice Note CL-7 under the heading "Final PNL Orders and Explanatory Notes" in professional negligence matters at [13]. It reads: "13 Amendments to Pleadings Any amendments to the pleadings should be made not less than 2 weeks before the hearing. It is anticipated that with all witness statements and expert reports served any amendments would be to regularise the pleadings to accord with the evidence rather than to raise new allegations and defences."

[29]

The plaintiff's submissions

The plaintiff submitted that the general rule is that a party is entitled to an amendment which permits the real issues in the dispute to be determined, even at a late stage in the proceedings: see Cropper v Smith (1884) 26 ch D700 at 710. This is consistent with UCPR 14.17 and 19.1, as well as [13] of the Practice Note CL-7 reproduced earlier. Paragraph [13] of Practice Note CL-7 acknowledges that in professional negligence matters such as these proceedings, which often deal with complex issues, pleadings may require amendment at a late stage to accord with the evidence served.
The plaintiff referred to Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 ("JL Holdings"). In that case, the defendant sought to amend its defence 7 months before the hearing date.
In JL Holdings, the High Court stated at 154: "Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always be borne in mind, even in changing times, the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed t supplant that claim."
The plaintiff conceded that the common law position has been modified by statute and rules of the Court, and that the approach to be taken in regards to principles of case management has been considered in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ("Aon") at [111]-[112].
The plaintiff's explanation for the amendments is that they arise out of the expert evidence obtained in reply by the plaintiff.
According to the plaintiff, where evidence emerges, even at a late stage of proceedings, which establishes a cause of action that is factually different from that which the plaintiff has sued upon, then the issue must be considered by the tribunal of fact, and the pleadings should be amended in order to make the facts alleged and the particulars precisely conform with the new evidence: see Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668.
In these proceedings, the plaintiff submitted that the amendments are limited to the issues of: 1. failure to exclude the plaintiff as a candidate for the gastric sleeve procedure on the basis of her pre-surgery alcohol dependence and/or consumption, and medication; 2. failure to refer the plaintiff to an educational course prior to the gastric sleeve surgery; and 3. failure to ensure that the plaintiff underwent appropriate psychiatric and psychological assessment prior to the gastric sleeve surgery.
The plaintiff submitted that these amendments are permitted by the UCPR, including the raising of new issues, and the amendments are sought to ensure the regularisation of pleadings which conform and accord with the expert evidence served in [13] of Practice Note CL-7. Further, the amendments allow for the real issues in dispute to be determined in the proceedings. The evidence served in reply by the plaintiff supports each amendment.
As to the delay, the plaintiff submitted that the affidavit of Ms Chambers, the defendant's solicitor, dated 3 June 2020 evinces no injustice or prejudice to the first defendant by the proposed amended statement of claim. Nor does it provide evidence that the proceedings might be disrupted or delayed, or cause the defendant difficulty. The plaintiff submitted that there is time prior to the hearing for the defendant to obtain evidence in response to the amendments, or for the amendments to be dealt with via joint conferences between the experts.
The plaintiff further submitted that the completion of the plaintiff's evidence in reply, which is the expert evidence which prompts the proposed amendments, has been delayed. Some of the delays were outside of the plaintiff's control, including COVID-19 restrictions impacting upon the ability of Mr Jenkinson in the United Kingdom to finalise his report, and the failure by MediLaw to send out a copy of Dr Mar Fan's report dated 10 December 2019 (CB 170 at [5]). More generally, the plaintiff submitted that the defendant has also at various times been the cause of delay in the progression of this matter. He sought orders to serve, and served, expert evidence over a period of two years, which delayed the plaintiff's ability to consider its totality and obtain evidence in reply.
As to wasted costs, the plaintiff submitted that unlike Aon, the amendments are not so substantial as to require the defendant to defend the case afresh. The amendments are limited to 14 paragraphs of blood testing and GGT levels, which are taken from medical records of the plaintiff already in the defendant's possession, as well as 9 new particulars of negligence. The plaintiff also submitted that it has incurred substantial costs in seeking a review of the registrar's decision on 16 April 2020 due to the defendant's misguided application at that directions hearing.

[30]

The defendant's submissions

The defendant submitted that the claim which has been advanced to this point is one based off the defendant's alleged failure to: 1. carry out the gastric sleeve procedure competently; 2. diagnose the complications suffered by the plaintiff; 3. properly treat those complications; and 4. adequately advise about the treatment or its alternatives.
As such, the difference in ambit between that claim, and the one sought to be advanced in the plaintiff's proposed amended statement of claim, is significant.
The defendant submitted that the plaintiff's submission that this matter raises "multiple pre- and post-surgery issues", including assessment of the plaintiff as a candidate for a gastric sleeve procedure, is inaccurate. The statement of claim does not raise multiple pre-surgery issues. The defendant submitted that the plaintiff is seeking through this application to expand the case to include further pre- and post-surgery issues.
The defendant submitted that in late 2019, the plaintiff's lawyers sought to take a different approach to their pleaded case. On 8 November 2019, the lawyers met and decided to investigate the possibility of an alternative case against the first defendant (CB, p 62).
On 16 April 2020, the plaintiff's counsel informed the registrar that she could not put on an amended statement of claim until she saw the reports of Mr Jenkinson (CB, p 177). It appears that the registrar was not asked to deal with the filing of the amended statement of claim. She further indicated that she was not reinventing the case because "it arises out of several conferences between senior counsel and myself and…I had a conference with the plaintiff in early December 2019…These issues as to psychological assessment and education have arisen out of conferences with the plaintiff and her counsel" (CB, p 177-178). The plaintiff submitted that these amendments regularise the pleadings in the amended statement of claim with the issues addressed by the medical experts served in reply.
According to the defendant, the affidavit evidence which the plaintiff relies upon also gave no indication why the plaintiff should be permitted to file the amended statement of claim. The fact that conferences might have taken place between counsel and the plaintiff's solicitor on 8 November 2019, or the attendance counsel on Mr Jenkinson, neither explain the delay nor warrant the intervention sought.
As to prejudice, the defendant submitted that opinions contained in each of the reports must be addressed. The defendant submitted that it will be required to do the following: 1. seek particulars from the plaintiff of the new claims being made against him; 2. undertake further inquiries of medical and para-medical personnel (including dieticians) in Wagga Wagga (CB, p 258-259); 3. obtain documents from, and make investigations into, Alfred Health in Melbourne in relation to its management of bariatric patients (CB, p 107); 4. obtain documents from, and make investigations into, Epworth Centre in Victoria in relation to the management of obesity patients (CB, p 107); 5. obtain comprehensive details of the plaintiff's mental health assessments and plans in 2006 and 2009 (CB, p 145); 6. issue subpoenas to entities which engage in counselling of persons with alcohol dependence and entities which conduct patient pre-bariatric surgery training; 7. possibly arrange for a psychological, or psychiatric, medico-legal assessment of the plaintiff, to assess the relevance of the new allegations; 8. engage and qualify experts to provide opinions; and 9. otherwise prepare for and arrange for the facilitation of the joint conclaves of experts.
The defendant further submitted that as to the plaintiff's reliance on Cropper v Smith and Leotta is misguided. Much law has come to inform the approach to management of litigation since those cases were decided. Until relatively recent times, it had largely been left to the parties to prepare for trial and seek a court's assistance when required. Limits are now placed on a party's amendment to pleadings and especially so when the amendment sought is late. Wasted costs and concerns about case management are relevant matters. The defendant submitted that applications of the type made by the plaintiff are no longer to be approached on the basis that the plaintiff is entitled to raise an arguable claim subject to the payment of costs by way of compensation. There is no such entitlement: see Aon at [111]-[113]. That case law is not compromised by the operation of the Civil Procedure Act.
The defendant submitted that the plaintiff has had no less than four and a half years since the statement of claim was filed to identify and particularise the material facts said to give rise to the cause of action against the defendant. It has taken the plaintiff not less than nine months since identifying that she should shift the ambit of the case to include substantially different pleadings until this application to amend the pleading is made. It is neither just, quick nor cheap that the defendant should have to meet an amended claim.
Finally, the defendant referred to Goldsmith v Sandilands (2002) HCA 31, where Gleeson CJ stated at [1]-[2]: "[1] It sometimes happens, in the course of litigation, that counsel will start a hare. The response of the opposing counsel may be to pursue it. One of the duties of a trial judge is to control the proceedings, to exclude irrelevancy, and to maintain proper limits upon the extent to which the parties and their lawyers will be permitted to raise and investigate matters that are of only marginal significance. [2] The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial". The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. One such qualification limits investigation of collateral matters."

[31]

Further submissions

At the hearing of these proceedings, I made a further order that the first defendant was to provide very short submissions in respect of the further proposed ASC. I have since received them. As the defendant did not limit those submissions to the issue of the ASC, the plaintiff sought leave to rely on short submissions in reply. Both parties' submissions may be summarised as follows.
The defendant submitted that the amendments to the ASC do not plead material facts said to give rise to the fresh allegations of negligence. They do not include any allegation of a "risk of harm" or otherwise identify elements necessary by reason of operation of s 5B of the Civil Liability Act. The defendant also objected to the plaintiff's submission that the amendments were late because evidence was not available. Specifically, the report of Dr Rees (which the defendant submitted is limited to quantum) was available to the plaintiff as far back as 2017.
The plaintiff submitted that the amendments to the ASC simply bring the pleadings in line with the Civil Liability Act, and ought not to cause the defendant difficulty. She also submitted that whatever Dr Rees' intention, her report concerns issues of liability, and the plaintiff is entitled to respond to it given that the defendant has served the report and seeks to rely on it.
It is noted that both parties made submissions concerning the defendant's medical notes about the plaintiff's drinking. That specific entry reads, "ETOH: 750 ml wine/day ↓ H20/diet coke" (CB, p 581). The defendant submitted that the downward arrow "gives a very different and contradictory picture" to the one put forward in the plaintiff's case. For her part, the plaintiff noted that the defendant had also referred to the plaintiff's drinking in a letter to the plaintiff's GP dated 28 May 2013, stating, "She has had problems drinking up to 750 ml of wine per day as well as soft drink…"
In my view, whether the plaintiff was drinking more than or less than 750 ml of wine per day is a matter for evidence. It is not in dispute that the defendant's medical notes record her alcohol consumption and note that figure appeared in the defendant's notes.

[32]

Resolution

Pursuant to s 64 of the Civil Procedure Act, the Court may at any stage of the proceedings grant leave to a party to amend a document for the purpose of determining the real questions raised by the proceedings. The power to grant leave to amend is subject to s 58 of the Civil Procedure Act and must be exercised in accordance with the dictates of justice pursuant to ss 56 and 57. In determining what the dictates of justice are under the circumstances of the case, the Court may have regard to the criteria set out in s 58(2)(b) of the Civil Procedure Act (as set out earlier in this judgment).
In Aon, the Court stated at [111]-[112]: "[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases.176 On the contrary, the statements are not consonant with this court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate."
The principles for this Court to consider in an application for leave to amend a statement of claim, as found in Aon, were summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 at [38] as follows: 1. whether there will be substantial delay caused by an amendment; 2. the extent of wasted costs; 3. whether there is an irreparable element of unfair prejudice caused by the amendment; 4. concerns as to case management arising at the stage that the amendment was sought; 5. whether granting an application to amend will lessen the public confidence in the judicial system; and 6. whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.
As to delay, by the time of the hearing of this application in February 2021, the defendant will have been in possession of the reports of Dr Miller dated 14 December 2019 (both), Dr Smith dated 4 December 2019, Professor Morris dated 27 November 2019 and Dr Mar Fan dated 10 October 2019 in excess of 6 months. Practice Note CL-7 recognises that amendments to pleadings may need to be made after a hearing date has been allocated, and up to two weeks prior to a hearing. In this case, preparation has not yet commenced and there is still time for the defendant to prepare responses to the reports and arrange for joint conferences. For this reason, it is also my view that the amendments do not cause unfair prejudice to the defendant. The defendant has adequate time to obtain further reports in order to answer any issues that needs to be addressed in that 7 month period before the trial.
The plaintiff's explanation for filing the amendments to the ASC is that the amended particulars of negligence arose out of the expert evidence in reply obtained by the plaintiff. Whether or not the issues arose after the plaintiff engaged with an expert in the UK, as the defendant has submitted, does not in my view indicate that the delay is unsatisfactory. The issues raised in the amendments to the statement of claim, being the plaintiff's alcohol consumption, medication use, referral to an educational course and psychological assessment, were raised in the defendant's medical reports as set out earlier.
It is my view that in these circumstances, the amendments to the ASC allow for the real issues in dispute to be determined. The plaintiff should be permitted to regularise the pleadings in conformity with her expert evidence served in reply. I grant leave to file the amended statement of claim. Such amended statement of claim is to be filed and served with 14 days.

Polsen v Harrison

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (9)

Cited By (2)