Resolution of the Issues
39 I turn then to the resolution of the issues. I have come to the firm conclusion that I should permit the first defendant leave to file the amended cross-claim provided to the solicitor for the second defendant on 26 February 2001. This means that, in the ultimate, I do not accept the careful submissions which have been made by Mr Hall QC on behalf of the second defendant. I shall explain why I have come to this decision.
40 At the outset, I do not think that there is any substance in the arguments based on the proposition that the amendments will constitute an abuse of process or any principle of promissory estoppel has operation in the circumstances of the present amendment application.
41 First, I do not consider that "delay" of itself is a significant factor in relation to the present application. Of course, there is no doubt that the death of Sister Ranclaud in 1993 deprived the second defendant of an important potential witness. I shall refer to her evidence in greater detail under the heading of the question of actual prejudice. Apart from this unfortunate occurrence, however, the litigation was, by its very nature, likely to have remained extant over a considerable period of time. It is obvious to me that there are good reasons why a plaintiff such as the present does not come to court for a hearing for many years after the original catastrophic condition was sustained. It was inevitable that it would be highly likely that many years would pass after the plaintiff's birth before this claim was commenced; and many years before it came on, ultimately, for hearing. It is also inevitable, in such a case, that memories may fade, witnesses may age, and in some cases disappear altogether. It is also likely that views may change substantially as to the significant medical factors operative in and of relevance to the determination of the outcome of such proceedings. The passage of these many years, however, did not excite any flurry of activity on the part of either of the defendants. Expert reports began to flow between the parties only about three years ago. At that point of time, all parties started to prepare in earnest for the hearing. It appears obvious, as one would anticipate, that factual matters were scrutinised more carefully, the particulars and interrogatories were examined in the light of the expert knowledge available at the time, and so it was, in this context, that the issue which the first defendant wishes to litigate against the second defendant was thrown into the arena.
42 According to my examination of the factual material, apart from the unfortunate death of Sister Ranclaud, there does not appear to be any other factual matter of prejudice operative in relation to the discretion I am asked to exercise arising out of the long period which has elapsed either since the cause of action arose or the proceedings were commenced to the present day. Nor, apart from the death of Sister Ranclaud, was I addressed by counsel to suggest that delay in itself was the critical factor in the assertion of prejudice in this case.
43 There are, however, two aspects to the abuse of process point. The first is that it is said the amendment will be futile because it is almost certainly an allegation of negligence or breach of duty of care against the hospital that is destined to fail. The second aspect is that it is an abuse of process because it is said that Dr Diamond's own answers are plainly at odds with the hypothesis which is at the core of the allegations contained in the proposed amendment.
44 It is necessary to pause at this stage and explain briefly why this is said to be so. Exhibits A and 4 in the motion are presentations of the second defendant's hospital records at the time of the plaintiff's birth. Expert evidence served on behalf of the first defendant's amended cross-claim focuses very substantially on documents in these hospital records. In particular, the partogram, the nurses' record of events, and the Daily Fluid Balance Charts have been examined with great precision, so far as they can be, by the experts on behalf of the first and second defendants.
45 The first defendant's experts took the view that the records revealed that the hospital staff administered an infusion of Syntocinon in the concentration of 10 units in 700mls of solution. Infusion at this level, according to one reading of the hospital records, was completed at 2.15pm on he day of delivery. On this view, and making allowance for different interpretations of the records, there was, it is said, an excessive dose of Syntocinon, resulting in hyperstimulation which was operative between 11 and 12 noon on that day. It is said, on this view of the records, that, on the balance of probabilities, that may well have been so. Since the appropriate concentration of Syntocinon was 10 units to 1,000mls, the infused dosage was approximately 40 per cent higher than the usual concentration. This is why, in the opinion of these experts, the infusion was an excessive dosage.
46 Counsel for the second defendant says that the possibility of this excessive dosage being administered and causing hyperstimulation, as alleged at the relevant time, is simply impossible to accept. The effects of such a dosage, it is argued, would have been plainly observable by all of the hospital staff in the maternity section and by those who were responsible for compiling the records. More importantly, it would also have been apparent to Dr Diamond when he arrived at the hospital at 1.35 or 1.40pm on that day. His answers to interrogatories do not suggest that any such problem was observable or in fact observed by him. Similarly, with the observations in relation to foetal heart beat. If the factors, which the experts point to, were occurring either at or prior to the time Dr Diamond arrived, the foetal heart beat would have given a positive indication of distress sustained as a result of the hyperstimulation. Neither the hospital records nor the answers given by Dr Diamond, it is said, support the possibility of foetal distress being apparent at that time.
47 In the light of these brief illustrations, let me repeat Mr Hall's argument as I understand it. He urges me to reject the amendment because first, the case now urged is a weak one, having regard to the documentary material, the probabilities, and to Dr Diamond's own statements in answers to certain of the interrogatories. Secondly, the case is an inconsistent one because, particularly in answers to interrogatories, Dr Diamond makes it clear that he was the prescribing doctor, so far as the administration of the Syntocinon was concerned and, secondly, he makes it clear that he did not observe any signs of foetal distress or hyperstimulation when he arrived at the hospital.
48 Senior counsel for the first defendant replies to these arguments by taking me again to the interrogatories; and by asserting that there was, in truth, no inconsistency between the answers contained therein and the case Dr Diamond seeks to put. For example, Mr Brereton says that nowhere does Dr Diamond say that it was he who gave the instruction for 10 units of Syntocinon in 700mls of solution. Secondly, it is not the first defendant's case against the hospital that foetal distress would have been necessarily apparent when Dr Diamond arrived. It was the combination of the hyperstimulation and the application of forceps that "tipped things over the edge" and caused the substantial drop in the foetal heart rate.
49 All this makes it perfectly clear to me that it is both impossible and inappropriate at this stage to attempt to assess the strength or weakness of the argument which Dr Diamond wishes to advance against the hospital. It is an argument that he has wished to advance since September 1999. I do not, at this stage, see it as being inconsistent, in the relevant sense, with the position of the litigation as between the two defendants prior to September 1999. It is very clear that it was not until Dr Lyneham's reports were obtained that the possibility of such an approach was, or would have been or should have been, apparent to the first defendant's representatives. It may be at the hearing of the trial after cross-examination I will be persuaded that there are relevant inconsistencies in some of the answers given by Dr Diamond. I have little doubt that he will be robustly queried about these matters. I repeat that it is simply impossible and inappropriate for me to say that there is such an inconsistency arising on the face of the material in the pleadings that I should decline to allow this amendment. For these reasons, in my opinion, there is no substance in the arguments based on assertions of abuse of process.
50 I turn then to consider the question of estoppel. As to the proposition that the principles of promissory estoppel as discussed in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 are applicable, I am simply unable to see how those principles have anything to do with the present application. In Verwayen a member of the Royal Australia Navy was injured when two war ships collided while engaged in combat exercises in 1964. In 1984 the plaintiff sued the Commonwealth for damages for negligence. The Commonwealth did not plead that the action was barred by the Victorian Limitation Statute or that it owed no duty of care to the plaintiff because he was injured as a service man in the course of combat exercises. Both before and after it delivered its defence, the Commonwealth stated that its policy in relation to claims arising out of the collision was not to contest liability, and not to plead a limitation defence. Following a change of policy in 1986, the Commonwealth obtained leave to amend its defence to rely on both the limitation statute and to assert that it owed no duty of care to the plaintiff. Justices Dean and Dawson held that the Commonwealth was not free to dispute its liability to the plaintiff because it was estopped from doing so. Justices Toohey and Gaudron also held that the Commonwealth was not free to dispute its liability to the plaintiff but on the basis that it had waived its right to rely on either defence.
51 I agree with Mr Brereton's submission that it could not possibly be said, in the circumstances of this matter, that anything was ever conveyed to the hospital or its solicitors to create an expectation that Dr Diamond would do otherwise than to pursue every ground of cross-claim which he was properly entitled to raise. No representation of any kind was ever made which would have the effect of raising a reliance by the hospital upon an assumption as to any present, past, or future state of affairs in this regard. Nor is there any reliable evidence to suggest that the second defendant altered its position in any way in reliance upon such an asserted representation.
52 It is true that the first defendant obtained a report from Dr John Pennington on 30 January 1989 which expressed the opinion that Dr Diamond and the hospital staff "acted in accord with proper professional standards and contemporary obstetric practice." It is, however, in the nature of litigation that other experts, retained at a later time on behalf of the first defendant, might take a contrary view about the procedures and did so in this case, particularly in the light of a scrutiny of facts which may not have been apparent at the time the earlier report was obtained. I am unable to see that the obtaining of an earlier report which was favourable to the hospital precluded Dr Diamond, in any way from obtaining a later report which was critical of the hospital. Nor do I see that the provision of Dr Pennington's report to the hospital could, in the circumstances of this case, possibly amount to a representation which would preclude reliance upon a later report.
53 I turn then to the third and final matter, that is the question of prejudice. This third aspect of the second defendant's argument focuses on the prejudice suffered by the hospital, as a consequence of the death of Sister Ranclaud. The relevant aspects of prejudice are said, in summary, to be the following:-
(1) The matters raised in the proposed amended cross-claim were raised well after Sister Ranclaud's death;
(2) Although a statement was taken from Sister Ranclaud in February 1988, it did not address, except peripherally, the issues raised in the proposed amended cross-claim;
(3) Although Sister Ranclaud's statement reveals, in effect, that she was doubtful she could recall the plaintiff's delivery, the second defendant has lost the opportunity of refreshing her recollection or prompting her memory in relation to the factual assumptions of the events on the day of delivery underlying the Lyneham/Pennington reports. This is so, particularly in relation to matters calling into question the competence of Sister Ranclaud, such as the allegation of the overdosage of Syntocinon;
(4) Although the hospital records are available, the absence of Sister Ranclaud means she cannot be asked about her notes in those records and their interpretation and, additionally, cannot be asked about her general practice and procedures at the time of the plaintiff's delivery.