Simpson v Diamond & Anor

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

12791/87 - Calandre SIMPSON by her tutor William Charles Simpson v Robert DIAMOND & Anor

1 HIS HONOUR: By motion filled in court on 28 February 2001 the first defendant seeks leave to file an amended first cross-claim which had been provided to the second defendant on 26 February 2001. In the alternative, leave is sought to file an amended cross-claim which had been provided to the solicitors for the second defendant on 28 October 1999. 2 The hearing of the principal action is to commence on Monday 5 March 2001. The proceedings concern a claim for damages for brain damage suffered by the plaintiff at her birth in 1979. The first defendant is the delivering obstetrician and the second defendant is the hospital where the delivery took place. It is alleged that the plaintiff has a severe form of athetoid cerebral palsy. She is wheelchair bound and depends on carers and family for all aspects of her daily living. Because of the obvious and urgent need to have this interlocutory issue determined quickly, I heard full argument on the motion on 28 February 2001. At the conclusion of the hearing I reserved my decision until today. The need to give swift decision has dictated the need to deliver a judgment ex tempore. I trust this method of giving judgment will do justice to the careful submissions made on behalf of the each of the first and second defendants. 3 Before discussing the nature of the cross-claims, which are subject of the present motion, I shall set out a brief chronology of the events relevant to their coming into existence. The plaintiff's mother, Gail Simpson, was a patient of the first defendant. He had delivered her first child, Bianca. On 5 July 1979 the plaintiff's mother was an in-patient at St Margaret's for the purpose of maternity confinement which was intended to lead to the plaintiff's birth. At about 1.45pm on that day the first defendant attempted to deliver the plaintiff's mother of the plaintiff by forceps delivery. These attempts were unsuccessful and consequently the first defendant delivered the plaintiff by means of Caesarean section. The plaintiff's charge is that, as a result of the method adopted by the first defendant and supervised by the staff of the second defendant hospital, the plaintiff suffered hypoxia and was born with a damaged brain which led to cerebral palsy. 4 A statement of claim alleging negligence and breach of duty against each of the defendants was filed in the Supreme Court on 3 April 1987. It is a very substantial claim by any standard. The negligence alleged extends to allegations regarding the conduct of the defendants in relation to activities in the labour ward before the attempted delivery of the plaintiff; and the events involved in the delivery procedure in the operating theatre. 5 It appears to be common ground that very little of any major consequence occurred in relation to the conduct of the proceedings for a number of years. Particulars were sought and supplied through 1989 and 1990. Discovery of documents took place in 1991. A number of interrogatories were sought and answered in the period between 1991 and 1993. There were other preliminary interlocutory steps taken throughout this period which is unnecessary for me to detail. 6 Relevantly, a cross-claim brought by the first defendant as cross-claimant against the second defendant as cross-defendant was filed in the Supreme Court on 27 February 1991. This bland pleading sought contribution or indemnity from the cross-defendant without disclosing any specific matters. 7 In March 1991 the second defendant responded with a second cross-claim brought against the first defendant. On 20 April 1995 the second defendant filed a defence to the doctor's cross-claim denying that he was entitled to claim contribution or indemnity from it. It, too, was a bland document, simply relying conventionally on the defence the second defendant had filed in answer to the plaintiff's statement of claim. 8 An experienced midwife, Geraldine Ranclaud, was employed by St Margaret's Private Hospital in the labour ward delivery suite in the period between 1974 and December 1979. She was working there at the time of the plaintiff's birth and was the staff member who had the most to do with the management of the plaintiff's mother's labour on 5 July 1979. Regrettably, she died as a consequence of complications arising from breast cancer on 25 October 1993. 9 It appears that expert reports on liability issues were not served by any of the parties until 1998. It is not necessary to detail the course of exchange of these reports between the parties beyond noting that the solicitors for the first defendant wrote to the solicitor for the hospital on 16 September 1999 enclosing two reports by Dr Robert Lyneham. The letter comments:- "Dr Lyneham has raised a number of issues concerning the management by the hospital staff of Mrs Simpson's labour prior to Dr Diamond entering the hospital at 1.30pm. Accordingly our client has instructed us to file and serve an amended cross-claim against your client raising additional allegations concerning the management of labour before 1.30pm by the hospital staff. We will serve you with the amended cross-claim shortly."

10 On 28 September 1999 the second defendant's solicitors acknowledged receipt of the report of Dr Lyneham dated 12 September 1999. They asked to be supplied with the information or assumptions relied upon by Dr Lyneham in preparing that part of the appendix to his report titled "Analysis of Syntocinon Administration - St Margaret's Protocol". 11 On 28 October 1999 the first defendant's solicitors provided the solicitors for the second defendant with material which had been provided to Dr Lyneham and information regarding the hospital's protocol. It appears that a draft of the amended cross-claim was sent and received by the second defendant's solicitors on the same day. On 16 November 1999 the solicitors for the hospital wrote to Blake Dawson Waldron regarding the proposed amended cross-claims. The letter concluded:- "We ask if your client could delay filing this proposed amended first cross-claim until such time as he has served his further expert evidence and allowed our client an opportunity to consider same." 12 I am asked to infer that this request constituted a tactic whereby the second defendant wished, with the concurrence of the first defendant, to keep from the plaintiff's solicitors at least the fact that a real dispute had now arisen between the first and second defendants as to their respective activities in relation to the events which had led to the plaintiff's catastrophic birth. Whether this be an available inference or not, I think the more important point is to note that far from expressing outrage at the proposed amended cross-claim, the second defendant was taking steps to ease the passage of expert reports as between these two parties, and appeared to assume that the amended cross-claim would be filed as a matter of course. Certainly, the first defendant's solicitor may have reasonably anticipated from this letter that there would be no problem with the obtaining of consent to the filing of the amended cross-claim out of time. 13 A report by Professor Fisk and a further report by Dr Lyneham were served on 14 July 2000. On 17 July 2000 the solicitors for the first defendant sent the solicitor for the second defendant by way of service the formal amended cross-claim. The solicitors appeared to have assumed that consent would be forthcoming to its being filed, since an undertaking was given to the solicitors for the second defendant with a sealed copy once it had been filed in the Supreme Court. 14 On 19 July 2000, the solicitor for the hospital requested some information arising as a consequence of one of the answers to interrogatories administered by the hospital. The letter enclosed a copy of a document entitled "Induction of Labour - Intravenous Oxytocin Infusion." This related to the protocol apparently in force at the public hospital in 1979. The information sought and the material provided related to the issues raised by the amended cross-claim. On 20 July the solicitors for the second defendant were formally requested to endorse consent to the filing of that document. 15 There was further correspondence in July and August 2000 relating to the exchange of materials in connection with issues arising out of the expert reports and the identification of the protocol. It appears there was a conference hearing on 3 October 2000. Apparently, there was no appearance on behalf of the second defendant. As a matter of courtesy, the solicitors for the first defendant wrote to the hospital's solicitor informing them of the outcome of the conference hearing and noting the principal action had been listed for hearing on 5 March 2001. 16 In the second paragraph of this letter of 31 October 2000, there appears the following:- "We refer to our letter of 20 July 2000 forwarding a cross-claim for your consent. Please advise whether or not you will consent to the filing of that document prior to the mediation. If you do not consent, please state the grounds on which you object to the cross-claim, as we will seek our client's instructions to apply for leave to amend the cross-claim. We will seek costs from the second defendant if that step becomes necessary." 17 It does not appear that there was any response to this aspect of the letter nor any response to the earlier letter which had been sent on 20 July 2000. 18 The hospital solicitors, however, wrote to Blake Dawson Waldron on 10 January 2001 referring to that firms's letter of 20 July 2000. This letter, some seven pages in length, sought further and better particulars of the proposed amended cross-claim. At the conclusion of the letter, the author said:- "We assume that the time for filing a defence to the amended first cross-claim will not run pending receipt of these further and better particulars. Please advise us immediately if our assumption is incorrect."

19 On 30 January 2001 the hospital solicitors served a copy of a statement of Geraldine Ranclaud dated 1 February 1988 on the solicitor for the first defendant. This statement was served pursuant to the terms of s 63(2) of the Evidence Act. The stipulated ground was that Sister Ranclaud was deceased. 20 On 26 February 2001 the first defendant's solicitors provided detailed further and better particulars as had been requested on 10 January. The letter in which these particulars were supplied also enclosed an updated copy of the amended cross-claim which, so the letter indicated, would be the subject of a leave application to file to be made on the first day of the hearing. 21 (I interrupt this narrative to note that, as the chronology shows, there had been two amended cross-claims served on the solicitors for the hospital. The first of these was received, in draft form, on 28 October 1999. It was later formalised by the settled document sent on 20 July 2000. The second amended cross-claim was that enclosed in the letter of 26 February 2001. The difference between these two documents is the inclusion in the February 2001 document of a wider range of particulars than had been contained in the earlier document. No specific prejudice is said to arise from the enlargement of these particulars. The existence of the two documents, however, explains the reason why the motion seeks orders in the alternative.) 22 The final stage in the narrative is that the proceedings were before the court at 9.30 am on Monday 26 February for directions. It is apparent, from what I have said, that the second amended statement of claim was in the hands of the legal representatives for the hospital on that morning. Mr Hall QC informed the court that his instructions were to oppose the filing of the amended cross-claim. It was as a consequence of those instructions that the matter came to be listed on 28 February 2001 for argument. Mr Cran solicitor, who swore an affidavit, Exhibit B on the motion, said that the first mention made by the legal representatives of the second defendant that there would be opposition to the filing of the amended cross-claim was the statement to that effect made in court by Mr Hall QC.

The Nature of the Cross-Claim - Exchange of Expert Reports 23 I turn now to consider the nature of the cross-claim. There is no dispute that a copy of the proposed amended cross-claim was served on the solicitors for the hospital on 28 October 1999. Nor is it argued that the additional particulars in the amended cross-claim sent with the letter of 26 February 2001 represent, of themselves, any additional prejudice to the second defendant. In those circumstances, for convenience sake, I will when referring to the amended cross-claim intend, unless the context specifies otherwise, to refer to the document sent with the letter of 26 February 2001, although noting that a copy of an earlier version had been served on 28 October 1999. 24 As will be seen from the narrative, one unusual feature of the course of events was that the nature of the proposed cross-claim was spelt out in considerable detail by way of service of the reports of Dr Robert Lyneham on 16 September 1999. This material was provided more than a month before the proposed amended cross-claim itself was sent in draft form. It is sufficient for present purposes to describe the case which Dr Diamond seeks to make against the hospital in the terms used by Mr Brereton SC for the first defendant during argument. I quote:- "What Dr Diamond contends is while normally one would have expected a baby, such as the plaintiff, to recover from the oxytocin incident once the forceps were no longer required, rather than to deteriorate as this plaintiff did, this fetus' reserves must have been sapped by previous experiences during the labour. We point to hyperstimulation of the maternal uterus during labour, particularly between the hours of 11 am and noon on the date in question. So Dr Diamond's case on causation is there were at least two factors at work. The forceps may well have been one of those factors, but also at work was the fact that the foetus was predisposed to this injury by uterine hyperstimulation earlier in the labour. That uterine hyperstimulation was the responsibility of the hospital which administered an excessively high dose of Syntocinon, the drug administered to induce and promote and maintain labour, and a failure adequately to monitor her during labour while she was in that state of hyperstimulation. So, essentially, the case which we seek to run against the hospital is that by the excessively high dose of Syntocinon and by inadequate supervision and management during the early part of labour, including the failure to recognise that the foetal heart rate was static at 140, lacking variability over that period, by those matters, the hospital contributed in a very major way to the ultimate outcome." 25 In addition to the reports of Dr Lyneham in 1999, there were reports of Professor Fisk, Dr Keogh, and a further report of Dr Lyneham which were provided to the solicitors for the hospital on 14 July 2000. These all addressed aspects of the proposed amended cross-claim. 26 Professor Brian Trudinger had in March 1999 provided a report to the solicitors for the hospital expressing opinions critical of Dr Diamond's activities in relation to the plaintiff's birth. He was provided, inter alia, with the hospital notes, response to interrogatories of Dr Diamond, and St Margaret's Hospital. He was also provided with the reports of Dr Lyneham and Professor Fisk. On 11 January 2001 he provided a report for the hospital solicitors in which he disagreed with the conclusion which had been expressed by those experts in relation to allegations contained in the cross-claim. 27 Professor David Elwood, on 15 February 2001, provided the solicitors for the hospital with a detailed lengthy opinion in relation to the same matters. Relevantly, he expressed a firm view to suggest that even if it had been the case that the rate of Syntocinon administration was at the limits of acceptability, that this did not appear to have adversely affected the foetal heart rate. In his opinion, hyperstimulation, if it had occurred, was not a factor and had no effect on foetal condition even before midday when the partogram conditions ceased or after that time and until the forceps delivery was attempted. It was his view that failed forceps delivery, as opposed to a trial of forceps in the operating theatre, led to a greater delay in the time interval from attempted delivery to actual delivery by Caesarean section. It was the timeframe involved in this delay which, in his opinion, occasioned the duration of the foetal hypoxia needed to cause the irreversible damage underlying the plaintiff's cerebral palsy. 28 I have assumed that these reports prepared on behalf of the hospital were served on the solicitors for the first defendant soon after they were provided to the hospital solicitors.

Application to Amend - Source of Power 29 In general terms, it follows from what I have said that so far as expert evidence is concerned, the first and second defendants are in a position to join issue on the matters raised in the amended cross-claim. 30 I turn now to consider the application to amend and the source of power for such an amendment. Part 20 Rule 1 of the Supreme Court Rules deals with the power of amendment. The relevant parts of the rule are as follows:- "1. (i) The Court may, at any stage in any proceedings, on application by any party or of its own motion, order that any documents in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. (ii) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or correcting any defect or error in any proceedings, or avoiding multiplicity of proceedings."

31 The first defendant argues that the court's discretion should be exercised in favour of the amendment. This is so firstly, because of the express language of Part 20 Rule 1 itself and because of the well established principles which relate to the amendment power (See McGee v Yeomans (1977) 1 NSWLR 273 at 280; see also the cases gathered in the Ritchie's Supreme Court Practice at 20.12.) 32 Secondly, counsel for the first defendant pointed to the fact that experts reports on liability issues were not served by any party until 1998. The litigation had taken generally a leisurely course to this stage. Dr Lyneham was asked to examine the material from the point of view of the first defendant in 1999. In recent years, Mr Brereton SC said, there has been extensive debate regarding the issue of causation in cerebral palsy cases occurring in labour. The issue in the proposed cross-claim arose as a direct consequence of Dr Lyneham's examination of the material in the case. By late 1999, the Lyneham reports were available, copies were served on the second defendant; and shortly after that the draft amended cross-claim was sent. In these circumstances, it is argued, the second defendant had been on notice as to the nature of the amended cross-claim and the precise contents of the reports which are to be relied upon to support it for a period of about 18 months. Subsequent reports, such as that of Professor Fisk, have been in the possession of hospital solicitors since July 2000. 33 Thirdly, the first defendant argues that the course of dealing between the respective solicitors for each of the defendants demonstrates that the first defendant was entitled to assume that consent would be forthcoming, or that it would not be withheld, when the hearing commenced. It is argued that the first defendant is entitled to maintain its claim for contribution against the second defendant on the basis of the amended statement of claim and that the amendment should be allowed. 34 On behalf of the second defendant, Mr Hall QC made a forceful submission that the application for amendment should be refused. His submissions, at the hearing of the motion, were supplemented by a 19 page document provided to me towards the end of the afternoon of 28 February. I trust that it does no discourtesy to the length and force of Mr Hall's submissions, both oral and written, if I attempt to summarise them with relative brevity. 35 Mr Hall QC accepts that the court does have ample power to make the amendment in question. Generally, he concedes, that a party who seeks to amend will be permitted to do so to enable the real questions in dispute between the parties to be tried. This is, after all, the substance of Part 20 Rule 1. On the other hand, he submits, however, that there are three particular factors which would require the court to refuse the amendment in the present case. These factors are:- (i) Where an amendment sought at a late stage constitutes an abuse of process, this will ordinarily lead to a refusal of an amendment. (ii) Where the principles of promissory estoppel, based upon the nature and extent of the issues raised in the original pleadings, would make it unjust for a party to rely upon a proposed amendment, the amendment should be refused. (iii) Where an amendment would occasion actual prejudice to the opposing party so as to result in a fair trial of the issues being unlikely, the application should be refused.

36 Mr Hall QC argues that each of these factors should be found in his client's favour in the particular circumstances of this case. 37 First, Mr Hall QC has pointed to the principles which have been applied in strike out and limitation cases focusing upon questions of fairness arising out of prejudice occasioned by substantial delay: Calvert v Stollznow, a decision of Cross J SCNSW unreported 1 April 1980 in relation to a strike out application; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Sydney City Council v Zegarac (1998) 43 NSWLR 195, these being limitation cases. Finally, he made reference to the decision of the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. In particular a discussion by Kirby J in his judgment in that case of relevant principles supported by an extensive case law analysis. 38 Secondly, Mr Hall QC pointed to the pleadings, the expert reports, and a number of detailed answers to interrogatories to support each of the major propositions advanced as to why the application should be refused. I do not propose to deal with every single illustration given in argument nor do I think it appropriate to do so, as the resolution of some of the matters raised by Mr Hall are more appropriately left to the hearing of the principal case on the merits.

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.

54 The second defendant, in arguing that these were, separately or in combination, matters of prejudice likely to prevent the second defendant obtaining a fair trial of the issues raised in the amended cross-claim, points to principles stated in Brisbane South Regional Health Authority v Taylor and Sydney City council v Zegarac. 55 I agree, however, with Mr Brereton's submission that cases involving strike out applications or limitation applications are of limited assistance to the present application. In the decision of the High Court in Brisbane South Regional Health Authority v Taylor at pp 553 to 554, McHugh J said this:- "The discretion to extend should therefore been seen as requiring the applicant to show that his or her case is a justifiable exception to the rule, that the welfare of the state is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after the limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

56 At p 555 of his judgment, McHugh J, in dealing with the effect of delay on a witness' recollection, said this:- "If the action had been brought within time, it would have been irrelevant that by reason of the delay in commencing the action, Dr Chang might have little independent recollection of his conversation with the applicant, and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action."

57 The distinction between an amendment case and a limitation case is inferentially demonstrated by the discussion in the passages to which I have made reference. All this is not to say, however, that if there exists a substantial prejudice of a kind which makes it unlikely that the opposing party will get a fair trial on the issues raised by a proposed amendment, that this is a matter which may well lead to a refusal of the application to amend. 58 In Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, which was itself an amendment case, in the joint judgment of Justices Dawson, Gaudron, and McHugh, their Honours said at p 155:- "In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicant out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."

59 Their Honours earlier had noted at p 154 that the ultimate aim of a court is the attainment of justice. Bearing those principles in mind, it is clear to my mind that the resolution of the competing submission in the present case requires a recognition on the one hand that the first defendant will be shut out of its proposed claim against the second defendant if the application for amendment be refused; and on the other hand there is prejudice to the second defendant if the application be granted, in that it will be required to conduct its case without the benefit of whatever assistance Sister Ranclaud may have been able to provide. The attainment of justice in the present case requires an appropriate resolution of the tensions between these two valid competing claims. 60 I have come to the conclusion that the prejudice to the second defendant arising from the death of Sister Ranclaud is to be viewed in the light of the following considerations which persuade me the second defendant will be able notwithstanding her absence, to present its defence to the amended cross-claim adequately:- (1) Evidence of the general practice of the maternity section of the hospital and of Sister Ranclaud's practices as at 1979 would be available from other hospital staff; (2) It has not been suggested that Dr McInnes who was present on the day in question and involved in the plaintiff's mother's medical procedures as her anaesthetist would not be available to give evidence; (3) There were, beside Sister Ranclaud, other nursing and hospital staff involved in the maternity section and the operating theatre on that relevant day at relevant times. I note the interrogatories identify Sister Steinford, Nurse Gallagher, and Nurse Selwyn. It has not been suggested that other nursing and hospital staff are unavailable; (4) The hospital records were kept not only by Sister Ranclaud but also by Sister Loreto Pagenyo, and Sister Val McGee. This is also shown from the interrogatories. It has not been suggested that evidence from other persons will not be available in relation to the general practice of keeping hospital records at the relevant time; (5) Although Sister Ranclaud is not available, her statement is. I note that counsel for the first defendant has informed the court no objection will be taken to the tender of that statement. On its face, that statement contains material supportive of the second defendant's case against the first defendant; (6) The nature of the cross-claim and the expert opinion by which it was sourced were provided to the second defendant about 18 months ago. Further expert material was provided in July 2000. Further and better particulars of the proposed amended cross-claim were sought on 10 January this year and provided on 26 February this year; (7) In addition, there are the answers to the interrogatories given by Dr Diamond and his assured participation in these proceedings. It must be said that he, too, is a valuable witness as to what happened on the day in question. True it is he is not the second defendant's witness, but if called, he will be available for, cross-examination by inter alia, the second defendant and his answers to interrogatories will be available for tender as appropriate; (8) The second defendant has had the benefit of organising its own expert reports refuting the claim made by the experts retained by the first defendant. There has been an exchange of reports on both sides and it appears that the experts are ready to join issue with one another at the hearing.

61 There are three further matters of general application which I wish to mention. First, the death of Sister Ranclaud in 1993 occasioned, in a general sense, an element of prejudice which was complete as at that date. Had the cross-claim been filed in 1993, immediately after her death, in general terms, no greater or lesser prejudice would have been able to be pointed to by the second defendant than has been pointed to in the present application. Secondly, the strength of the second defendant's case against the first defendant's amended cross-claim is, so far as one can gather, at a prima facie level, not insignificant. The presence of a forceful case in answer to the cross-claim of the first defendant is an indication that there is little real prejudice involved. Of course, the second defendant would prefer to have Sister Ranclaud available to give evidence, but it can hardly be said, in my opinion, that the second defendant is going into battle unarmed and defenceless. Far from it. Thirdly, the first defendant, having regard to the correspondence and the narrative I have recited at length, was entitled to be taken by surprise, that it was forced, so close to the hearing, to make a contested amendment application. There was no indication of prejudice or disadvantage, until Mr Hall flagged the position last Monday, in the leisurely course of dealings between the respective solicitors extending over nearly a year and a half in relation to the issues raised by the proposed cross-claim. This highlights the absence of any substantial prejudice, in my opinion. 62 My conclusion, therefore, is that I am satisfied that the first defendant has made good its claim to have leave to file the amended cross-claim, that being the cross-claim given to the solicitors for the second defendant on 26 February 2001. In my view, it is in the overall interests of justice that the plaintiff have the leave it seeks. 63 I order that the first defendant/first cross-claimant be given leave to file the amended cross-claim provided to the second defendant/cross-defendant on 26 February 2001. 64 Costs reserved. The Exhibits may be returned.

Last Modified: 03/15/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.