Solicitors:
Nash Allen Williams & Wotton (Plaintiff)
Makinson & d'Apice Lawyers (Defendants)
File Number(s): 2017/00067477
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Judgment
The plaintiff seeks by Notice of Motion filed 26 February 2020 an order adjourning the further hearing of a Notice of Motion filed on 26 April 2019 by the defendants seeking orders dismissing the whole of the proceedings for the alleged failure by the plaintiff to comply with Part 31.36 of the Uniform Civil Procedure Rules 2005 (UCPR).
The plaintiff opposes the orders sought in the Notice of Motion filed 26 April 2019. The Notice of Motion is part heard. Submissions in support of the defendants' application have been provided to the court.
The defendants neither consent to nor oppose the further adjournment sought by the plaintiff in his Notice of Motion filed 26 February 2020. Essentially they submit it is a matter for the court.
The plaintiff, Mr Tom Schwerdtfeger, commenced proceedings by way of Statement of Claim filed on 3 March 2017 against the defendants, the Western New South Wales Local Health District and the Western Sydney Local Health District, for damages for injuries as a result of alleged medical negligence claimed to have occurred in relation to him in about March 2014.
On 8 March 2014 it is alleged that the plaintiff was admitted to the Emergency Department of Orange Base Hospital in New South Wales having sustained a significant axe-related laceration injury to his right foot. It is alleged that the plaintiff was treated by way of a right foot debridement which resulted in the amputation of four toes. On about 28 March 2014, the plaintiff was allegedly transported by air ambulance to Westmead Hospital in Sydney where a skin graft was performed on his right foot. The plaintiff asserts that the treatment he received at Orange and Westmead Hospitals was negligent and in breach of a duty of care which was owed to him by the defendants. In particular, it is alleged that the defendants negligently failed to take action in relation to metal fragments in the plaintiff's foot which caused ongoing and avoidable infections.
It is not in issue that:
1. The proceedings commenced by the plaintiff are medical negligence proceedings; and
2. The plaintiff did not serve an expert report or reports with his Statement of Claim complying with the requirements of Part 31.36(1) of the UCPR.
Part 31.36 of the Uniform Civil Procedure Rules provides as follows:
"31.36 Service of experts' reports in professional negligence claims
(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting:
(a) the 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) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert's report or experts' reports supporting the claim.
(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.
(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.
(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.
(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:
(a) has been filed and served under subrule (1) or (2), or
(b) has been served pursuant to directions given under subrule (4)."
Part 31.18 of the UCPR defines "expert's report" relevantly as "a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based."
It can be seen that Part 31.36 of the UCPR requires an expert's report (or reports) that includes an opinion "supporting" a breach of duty of care alleged against each person sued for professional negligence, the general nature and extent of damage alleged and the causal relationship alleged between the breach of duty and the damage alleged.
In support of their Notice of Motion, the defendants read the affidavit of Ms Monica Deng sworn 26 April 2019. Ms Deng sets out aspects of the procedural history of the matter which are relevant to the present adjournment application.
The plaintiff has served so far two expert medical reports on the defendants. However, the defendants assert that the reports served did not comply with the requirements of Part 31.36 of the UCPR.
The plaintiff has read two affidavits on the 26 April 2019 Notice of Motion: an affidavit of his sworn 18 November 2019 annexing various submissions and medical notes and reports from his general practitioner Dr Thomas and an affidavit of his solicitor Mr Dominic Nash sworn 18 November 2019 setting out his attempts to obtain without success an expert medical report in New South Wales for the plaintiff and seeking more time to attempt to obtain such a report interstate.
In support of the current adjournment application filed 26 February 2020, the plaintiff read two further affidavits:
1. Affidavit of the plaintiff sworn 24 February 2020 seeking an adjournment to the "end of March at the minimum" to seek an expert report from Associate Professor Leon Kleinman; and
2. Affidavit of his solicitor Mr Dominic Nash sworn 21 February 2020 stating that Mr Nash has located a suitable medical expert being Associate Professor Kleinman, had requested a report from Associate Professor Kleinman on 14 February 2020 and expected that report in about mid-March 2020.
The parties agreed that the affidavits read so far on the 26 April 2019 Notice of Motion were to be regarded as being read on the adjournment application.
In order to properly understand the adjournment application, it is necessary to set out a number of relevant background facts. These emerge from either the affidavit of Ms Deng which was read on the defendants' application or its annexures or from the orders of the court recorded on the court file or from Mr Nash's affidavits.
On 3 March 2017, as stated above, the plaintiff filed his Statement of Claim alleging negligence against the two defendants which are the health districts in which Orange and Westmead Hospitals are situated. In substance, the allegations of breach of duty of care against both defendants relate to a failure to remove debris in the plaintiff's right foot detected in x-rays and to arrange further x-rays. The Statement of Particulars also filed on 3 March 2017 refers to a number of particulars of continuing disabilities including pain and restriction of movement of the right foot, difficulty walking and weight bearing and persistent infections of the right foot.
On 30 June 2017, the plaintiff served an expert report from orthopaedic surgeon, Dr Ron Sekel. There is no issue that Dr Sekel is an expert for the purposes of Part 31.36 of the UCPR. The report was headed "Provisional Report." Dr Sekel considered the plaintiff's treatment in the context that he had sustained a recurrent foot infection said to be directly related to the retention of foreign material including metal particles left behind in the soft tissues of the plaintiff's foot following his axe injury and a skin graft performed at Westmead Hospital. These foreign particles were alleged to have been removed surgically at a different health service on 31 March 2017.
The report of Dr Sekel was dated 30 June 2017 following a consultation with the plaintiff on 28 June 2017. In his opinion, Dr Sekel noted that there was no evidence of ongoing infection in the plaintiff's foot (pages 4 and 5). Dr Sekel expressed the opinion that it was more likely than not that pain would persist in the plaintiff's right forefoot and probably would increase. At the date of his report, he could not express an opinion that infection in the right foot had been overcome permanently. On page 8 of his report, Dr Sekel stated as follows:
"The injuries sustained are directly related to the axe injury to the right foot. The treatment for the recurrent foot infection was directly related to the retention of the foreign material left behind in the soft tissues … Had the foreign material been removed during Mr Schwerdtfeger's stay at the Orange Base Hospital, then more likely than not, treatment of the chronic and recurrent infection would not have been necessary over the following three years."
Nowhere in Dr Sekel's report does he provide an opinion "supporting" a breach of duty of care against either defendant or the causal relationship between any alleged breach of duty of care and the damage alleged to the plaintiff. There is an opinion relating to the recurrent infection being connected to the failure to remove the foreign material in the wound at the Orange Base Hospital (page 8).
The defendants filed Defences on 15 November 2017 denying negligence (see paragraphs 7-8 in the Defence of the first defendant and paragraphs 6-7 in the Defence of the second defendant). The defendants have also served two reports of Professor Martin Sullivan dated 13 September 2017 and 9 January 2018, respectively. Professor Sullivan expressed the opinion that the service provided to the plaintiff at both Orange and Westmead Hospitals was consistent with competent professional practice. In particular, Professor Sullivan expressed the opinion that it was not possible at either hospital to remove all metallic debris without causing significant soft tissue damage. Further, he stated that there was nothing to indicate that the retained metallic debris in the plaintiff's foot was causing any problems whilst the plaintiff was under the care of Westmead Hospital. In his later report, Professor Sullivan, having reviewed Dr Sekel's report, expresses the opinion that at the time of Mr Schwerdtfeger's stay at Orange Base Hospital: "…the principles of dealing with the open wound and traumatic amputation were followed. Removing all metallic fragments at the time of his hospitalisation in the Orange Base Hospital was not the mainstay of treatment. All the principles of dealing with his acute injury were followed. Unless there is any obvious foreign material that was causing problems at the time of his hospitalisation in the Orange Base Hospital, then it is not indicated to go and remove all foreign material."
The reports of Professor Sullivan provide a contrasting opinion. However, it is necessary to focus on the expert reports served by the plaintiff.
By letter dated 30 April 2018, the solicitors for the defendants pointed out alleged non-compliance by the plaintiff with Part 31.36 of the UCPR. A request for an expert report complying with Part 31.36 was made to the solicitors then acting for the plaintiff. A Notice of Motion was threatened to be filed seeking orders dismissing the proceedings unless there was compliance with the rule. A similar threat was made in a letter from the solicitors for the defendants to the solicitors for the plaintiff dated 11 July 2018.
At a directions hearing on 23 August 2018, the Court made orders for the plaintiff to serve any expert report evidence in reply and any supplementary report of Dr Sekel by 21 September 2018: Deng affidavit paragraph 14. No further report from Dr Sekel was served on behalf of the plaintiff: Deng affidavit paragraph 15.
On 16 October 2018, the plaintiff's then solicitor filed a Notice of Ceasing to Act. The plaintiff was then referred for pro bono legal assistance. None could be obtained. He has been self-represented until 20 August 2019 when his current solicitors were retained.
On 4 December 2018, the Court made orders to the following effect:
1. The plaintiff was to serve evidence complying with Part 31.36 of the UCPR by 15 February 2019;
2. If the plaintiff does not serve such evidence, the defendants were to file and serve any Notice of Motion seeking dismissal of the proceedings by 8 March 2019;
3. The matter was stood over for further directions to 15 March 2019.
A directions hearing was held on 15 March 2019. There was no appearance by or on behalf of the plaintiff. The Court made the following relevant orders:
1. The plaintiff was to serve evidence complying with Part 31.36 of the UCPR by 12 April 2019;
2. If the plaintiff does not serve such evidence, the defendants were to file and serve any Notice of Motion seeking a dismissal of the proceedings by 26 April 2019 and returnable on 3 May 2019;
3. The matter was stood over for a case managed list directions hearing on 3 May 2019;
4. Any further adjournment by the plaintiff was to be supported by an affidavit;
5. If the plaintiff did not appear, the proceedings were to be dismissed under Part 13.6 of the UCPR.
On 11 April 2019, the plaintiff filed the expert report of Dr George Gayagay, Orthopaedic Surgeon. Dr Gayagay is clearly an expert for the purposes of Part 31.36 of the UCPR. In his report, Dr Gayagay expressed opinions which include the following:
1. The plaintiff's treatment in Orange Base Hospital appeared "to be consistent with the practices of orthopaedic trauma for complicated open fractures" (page 1).
2. Because of ongoing complications with infections in the right foot and neuralgic pain, an x-ray was undertaken of the plaintiff's foot which "confirmed the presence of foreign bodies".
3. Dr Gayagay stated that he "would contend that imaging should have been done earlier in the context of recurrent infection to confirm osteomyelitis and/or rule out foreign bodies" (page 2). He does not say who should have arranged such x-rays. He then notes that foreign bodies were removed on 31 March 2017.
4. Nowhere in the report does Dr Gayagay provide an opinion supporting a breach of duty of care owed to the plaintiff by either of the defendants.
By letter dated 24 April 2019, the solicitors for the defendants commented on the report of Dr Gayagay and noted that he did not express the opinion that there was "a breach of duty by either Orange Base Hospital or Westmead Hospital." The solicitors for the defendants indicated that they would be filing a Notice of Motion seeking a dismissal of the proceedings. The Notice of Motion was filed, as indicated above, on 26 April 2019.
On 3 May 2019, the Motion came on for hearing before me. The plaintiff applied for an adjournment of the Notice of Motion in order for him to attempt to obtain an expert's report which complied with Part 31.36 of the Uniform Civil Procedure Rules. After argument, an adjournment was in due course granted until 14 June 2019.
Correspondence was received by the court that the plaintiff had been unwell with heart problems and that he had been admitted to hospital. On the written application of the plaintiff, the further hearing of the Notice of Motion on 14 June 2019 was vacated and the Notice of Motion was fixed for further hearing on 2 August 2019.
Shortly prior to that date, the plaintiff applied for a further adjournment due to health problems. The defendant consented to that adjournment. On 1 August 2019, the court adjourned the hearing of the Notice of Motion to 16 September 2019. It also made an order that the plaintiff was to file and serve an affidavit by 5pm on 2 September 2019 setting out the steps he has taken since 3 May 2019 to obtain an expert report or reports complying with Part 31.36(1).
The plaintiff filed an affidavit on 22 August 2019. In that affidavit, the plaintiff referred to his extensive health problems and his desire for the matter to be referred to "ADR (Alternative Dispute Resolution)" which I took to be a reference to referring the parties to a mediation. In relation to his attempts to obtain an expert report, he stated: "I might have managed to engage somebody to find a specialist for a report will take time. At another great expense which I had to borrow funds for."
On 16 September 2019, at the further hearing of the Motion, the defendant opposed referring the matter to a mediation pending the determination of the Notice of Motion. On that date, I rejected the application to refer the matter to mediation holding that the Notice of Motion must first be determined. If the matter is dismissed, referring the matter to a mediation would be inappropriate as proceedings would no longer be on foot.
Also on 16 September 2019, the plaintiff stated that he had retained new solicitors and sought yet a further adjournment of the Notice of Motion so that they could seek on his behalf the necessary expert report or reports. After a contested hearing, I granted the application to give the plaintiff a last opportunity to obtain appropriate reports.
The affidavit of Mr Nash sworn 18 November 2019 established that the plaintiff had not yet been able to obtain a further medical expert report as at that date.
On 22 November 2019, the plaintiff sought yet a further adjournment relying on the attempts to obtain an expert report set out in Mr Nash's affidavit. This application was neither consented to nor opposed by the defendants. After hearing submissions on both the oral application for an adjournment and the Notice of Motion, I granted a further adjournment until 28 February 2020 to provide the plaintiff time to obtain a complying report or reports.
At the hearing on 28 February 2020, the plaintiff, by Notice of Motion filed 26 February 2020, made a further application for an adjournment of the hearing of the Notice of Motion filed 26 April 2019 until at least the end of March 2020. This was primarily on the basis that a named medical expert had been located and briefed to provide a report.
The plaintiff appeared for himself at the hearing of the Notice of Motion on 3 May 2019. In substance, the plaintiff submitted that the problems he had with his foot following the accident were clearly connected to inadequate treatment which he received at Orange Base Hospital and Westmead Hospital. His submissions were critical of the treatment he received, of failures to ask questions about his prior medical history and in particular, of the failure to remove foreign objects in his right foot at the time that treatment was provided which caused ongoing infections in his right foot. Similar submissions are made by the plaintiff in the notes attached to his 18 November 2019 affidavit.
The defendants submitted that the plaintiff has been given many opportunities to file and serve an expert's report or reports complying with Part 31.36 of the UCPR and has failed to do so.
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Principles applicable
Section 66 of the Civil Procedure Act 2005 (NSW) gives a wide discretion to the court to grant an adjournment to a specified day "any proceedings before it or any aspect of any such proceedings". However, this power is expressly stated to be subject "to rules of court."
Sections 56-59 of the Civil Procedure Act 2005 are also relevant. Section 58(1) provides that in deciding whether to grant an adjournment of proceedings the court must seek to act in accordance with the dictates of justice. Sections 56 and 57 and the matters in s 58(2) are referred to. I also take into account the comments of Allsop P in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36]-[47].
Relevant to the approach to be taken to the adjournment application is that the plaintiff has been recently self-represented as pro bono legal assistance for the plaintiff has not been able to be located. The plaintiff has retained a solicitor to assist him since August 2019 being Mr Nash. A further factor is the plaintiff's extensive health problems.
The plaintiff has been given a number of opportunities to obtain such an expert report or reports complying with the rule. Such opportunities have been provided to the plaintiff on several occasions over more than a year.
Further, the plaintiff, whilst acting for himself, has made a number of attempts to obtain an expert report or reports complying with Part 31.36(1) without success. His current solicitor Mr Nash has now retained Associate Professor Kleinman.
I take into account the plaintiff's continuing failure to comply with Part 31.36(1) and the ongoing cost of the proceedings to all parties, including the defendants.
In my view, the following matters are relevant to the application:
1. The failure so far by the plaintiff to obtain a relevant expert report;
2. The recent failure by Mr Nash to obtain a relevant report, particularly the delay in obtaining a report since the last hearing on 22 November 2019;
3. The delay since the filing of the Statement of Claim;
4. The many opportunities already given to the plaintiff to obtain a report;
5. The current retainer of Associate Professor Kleinman to provide a report;
6. The estimate that a report will be provided by about mid-March 2020;
7. The plaintiff's ongoing health problems arising from his accident;
8. Sections 56-59 of the Civil Procedure Act 2005 (NSW) especially the factors in s 58(2);
9. That further delay may further dim witness memories;
10. The additional costs and delay in relation to the defendants occasioned if a further adjournment is granted.
Balancing the matters set out above, in my view it is in the interests of justice to grant the further adjournment sought by the plaintiff. However, it is a finely balanced application.
In my view, the significant factors in favour of the adjournment include that a medical expert has been identified and briefed prior to the application and that the period sought by the adjournment is fairly limited. Although further regrettable delay is occasioned, there was no evidence put before me on behalf of the defendants pointing to any particular actual prejudice through the adjournment. In addition, since Mr Nash has been retained by the plaintiff there does appear to be a degree of attention being given to the task of obtaining an expert report. Significant disadvantage may be occasioned to the plaintiff if the court determined the application immediately, including serious potential costs consequences. These matters are in my view more significant in this particular case in considering the application than the matters in s 57(1) of the Civil Procedure Act.
Accordingly, I will grant an adjournment to a convenient date soon after the date estimated for the preparation of Dr Kleinman's report. The parties identified 9 April 2020 as being suitable.
However, the plaintiff has sought an indulgence from the court. The 26 April 2019 Notice of Motion was listed for the completion of the hearing on 28 February 2020. The adjournment has prevented that happening. The plaintiff has had several adjournments before. The defendants seek an order for costs. The plaintiff opposes that. In my opinion, having regard to the delays and the several adjournments which have already been granted, the plaintiff should pay the defendants' costs of the 26 February 2020 Notice of Motion including the costs of 28 February 2020.
The plaintiff should make every attempt to have Dr Kleinman's report served by the end of March 2020. He should not assume further adjournments will be readily granted.
Accordingly, I make the following orders:
In relation to the Notice of Motion filed 26 February 2020:
1. The adjournment application is granted.
2. The plaintiff is to pay the costs of the defendants of the adjournment application filed 26 February 2020 including the costs of 28 February 2020 as agreed or assessed.
In relation to the Notice of Motion filed 26 April 2019:
1. The further hearing of the Notice of Motion filed 26 April 2019 is adjourned to 9 April 2020 at 10.00am before Dicker DCJ.
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Decision last updated: 28 February 2020