Skues v The Sydney Children's Hospital Network [2022] NSWSC 1128 | Case summary

Supreme Court of NSW|2022-08-18|Before: Chen J

REVISED EX TEMPORE JUDGMENT

This is an application by the plaintiff for leave to amend his statement of claim.
Shortly stated, the plaintiff's claim is this. In August and September 2006, when he was a few months old, he had low weight and had failed to thrive. He alleges that these were symptoms of a vitamin B12 deficiency. The plaintiff's parents took him to the Children's Hospital, Westmead, but the Hospital, through its staff, failed to diagnose and treat this condition, leaving him with significant neurological and cognitive impairments.
The proposed amendment is confined to a refinement of his pleading on causation. Despite the confined nature of the proposed amendment, the defendant opposes the grant of leave arguing that there is unexplained delay in moving the Court for the amendment, prejudice and lack of utility.
In light of that opposition, it is necessary to deal with the matter in some detail.

Background

What follows is a broad overview of the claim, drawn largely from the pleadings and the material tendered on the current application.
The plaintiff was born on 26 June 2006 with a vitamin B12 deficiency. Left untreated, vitamin B12 deficiency in neonates can cause cerebral neuropathy, including seizures and developmental delay.
The plaintiff's case is that, on 29 August 2006, he became a patient of the defendant through the Children's Hospital, Westmead (the Hospital). It is alleged that he had low weight and failure to thrive. The plaintiff alleges that his presentation at that time was indicative of him suffering from a vitamin B12 deficiency. Upon his admission, the Hospital undertook a urine metabolic screen which included testing for increased methylmalonate excretion.
Based upon what is admitted in the pleadings, it does not appear to be in issue that: 1. elevated levels of urinary methylmalonate in infancy may indicate a deficiency of vitamin B12; 2. the urinary screening was reported as showing very slightly increased methylmalonate; and 3. the report contained a suggestion for a further sample to confirm the finding.
The defendant does not, however, admit that the plaintiff had a vitamin B12 deficiency as at 31 August 2006.
On 31 August 2006, the Hospital received the laboratory report with the results of the urinary screening, which showed an increased methylmalonate reading - which the plaintiff contends was suggestive that a vitamin B12 deficiency was the cause of his clinical presentation. The report is said to have recommended that the screening be repeated in order to confirm the findings of an increased methylmalonate level. That did not occur and it is further alleged that, had it been done, it would have confirmed the initial result with two immediate consequences, being: 1. first, it would have led to a vitamin B12 serum testing; and 2. secondly, that such further testing would have revealed the plaintiff's vitamin B12 deficiency.
It appears that the plaintiff was discharged from the Hospital at this time.
On 12 September 2006, the plaintiff again presented to the Hospital. The plaintiff alleges that his presentation had not changed; that is, he continued to suffer from a vitamin B12 deficiency, and he had failed to thrive and remained underweight. At this presentation, the urine metabolic screening was not repeated, nor was vitamin B12 serum testing performed. On 13 September 2006, the plaintiff was admitted as an inpatient to the Hospital but, it seems, discharged shortly after that. The defendant does not admit that the plaintiff had, at this time, a vitamin B12 deficiency.
On 29 September 2006, the plaintiff presented to the Hospital. The plaintiff again alleges that his presentation had not changed and that he continued to suffer from the effects of a vitamin B12 deficiency. Again, the defendant does not admit that the plaintiff had, at this time, a vitamin B12 deficiency.
In November 2006, it is alleged that the plaintiff began to suffer symptoms consistent with epileptic seizures, developmental delay and infantile spasms - symptoms which the plaintiff alleges were caused by his ongoing untreated vitamin B12 deficiency.
On 18 February 2007, the plaintiff was admitted to the Sydney Children's Hospital, Randwick, for investigation of his symptoms. Whilst so admitted, blood testing showed a significant vitamin B12 deficiency for which he received supplemental B12. As a result of that supplementation, the plaintiff's infantile spasms are said to have ceased, but he has been left with global developmental delay and abnormal neurological development.
The plaintiff's claim is that the developmental delay and abnormal neurological development were caused by the delayed diagnosis of a vitamin B12 deficiency, and consequential delayed commencement of a vitamin B12 supplementation: see pars 128 and 129 of the second further amended statement of claim (2FASOC).
The defendant, in an amended defence filed on 17 January 2019, admits that clinical deficiency of vitamin B12 in infancy, if untreated, can cause neurological damage and developmental delay, but denies that it was likely to cause infantile spasms (also described in the amended defence as "West Syndrome"). As to that last matter, the defendant alleges (in par 4 of the amended defence filed 17 January 2019) that: 1. infantile spasms were not caused by any vitamin B12 deficiency; 2. developmental delay is related to infantile spasms, and is a common sequelae of them; and 3. the infantile spasms and developmental delay were caused by an unknown disorder.
Part of the defendant's defence to the claim is that the plaintiff's presentation and his disabilities are attributable to a genetic abnormality.
In view of the present dispute, it is necessary to say something about causation. This can be done by reference to the 2FASOC.
The plaintiff essentially pleads causation across four paragraphs, being pars 134 to 137. The amendment that is proposed is to par 135 and, relevantly, it provides as follows: "But for tThe defendant's negligence and breach of contract, the plaintiff would not have suffered caused or materially contributed to the plaintiff's injury, loss and damage."
Paragraph 136 is expressed in language that picks up s 5D(1)(a) of the Civil Liability Act 2002 (NSW), and par 137 is expressed in language that picks up s 5D(1)(b) of the Civil Liability Act.

Relevant principles: leave to amend

The relevant principles are not in doubt. They may be summarised as follows.
The Court may, at any stage of the proceedings, grant a party leave to amend any document in the proceedings: Civil Procedure Act 2005 (NSW) (CPA), s 64(1). Section 64(2) relevantly provides that "…all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings…". The power is to be exercised in accordance with the overriding purpose of the CPA, and the dictates of justice: ss 56-58.
In relation to these provisions, the following two matters should be noted. First, the power contained within s 64(2) of the CPA is conditioned upon a requirement that the Court follow the dictates of justice (as prescribed in s 58 of the CPA) in deciding whether to make any order, including, relevantly here, "any order for the amendment of a document…": s 58(1)(a)(i) of the CPA. Secondly, regard to both ss 56 and 57 is "statutorily compulsory" pursuant to s 58(2)(a) of the CPA: see Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [38] (Allsop ACJ).
The factors to be weighed in the exercise of discretion to grant leave to amend include (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) ("Aon")): 1. the nature and importance of the amendments to the party applying; 2. the delay in making the amendments, and the explanation for it; and 3. any prejudicial effect on the opposing party.
The other issue, bearing in mind the High Court's statements in Aon, is that any leave to amend is not granted without bearing in mind the requirements of case management and efficiency of the conduct of proceedings: see Aon at [23] (French CJ); [93] and [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The grounds for opposition

As I indicated, the defendant opposed the grant of leave on three grounds.
One ground - where the defendant suggested that, as the plaintiff had indicated in its submissions that an amendment of this kind perhaps was unnecessary, the Court should summarily dismiss the application to amend on that basis - I will put to one side: it does not deal with the substance of the matter, which is what I am required to do.
That leaves two grounds - namely, prejudice and the absence of explanation. I take these to be the matters that the defendant raises for particular consideration having regard to s 58(2) of the CPA.

Prejudice

The opposition to the proposed amendment by the defendant, on this ground, is based upon the following: 1. up until the proposed amendment, the case advanced by the plaintiff has always been that the sole cause of his injuries and disabilities was a failure to diagnose, and thereafter treat, the vitamin B12 deficiency; 2. by way of the amended pleading, the plaintiff is now "attempting to have a bit each way" by seeking to engage material contribution as a means of proving causation, but in doing so has not pleaded how, with other factors, they combine to cause his injuries and disabilities; and 3. to the extent that the plaintiff seeks to rely upon such a case, that would need to be pleaded and, furthermore, would need expert evidence to support it.
In relation to the first point, namely, that the claim has always been pleaded as a "sole cause" case - that is plainly so: that is, at all times leading up to this proposed amendment, the case for the plaintiff was that the failure to diagnose and treat the vitamin B12 deficiency was 'the' cause of the plaintiff's injuries and disabilities. That said, the medical evidence was not similarly confined. The Joint Report involving the paediatric neurologists and geneticists, dated 23 June 2021, does not, in my view, deal solely with the causation issues on that footing. The answers provided to questions 16 and 16A do not, upon a fair reading, deal with the matter that narrowly. The response to question 17A is, in my view, to similar effect.
As I understand it, the way in which 'material contribution' has been used in the present case - and the way it is used in the proposed amendment to par 135 - is synonymous with, or a shorthand reference to, the principle that a plaintiff need only prove that the defendant's negligence is 'a' cause, not 'the' cause of his damage. (That this is so may explain why the plaintiff advised the defendant that it considered, on one view, the proposed amendment to be unnecessary). In this situation, the contribution of another cause would not negate a causal connection if it were shown that the defendant's acts and omissions here were 'a' cause.
On this analysis, therefore, to engage the concept of 'material contribution' amounts to the plaintiff alleging that the defendant's negligent acts or omissions were a "necessary condition" of the plaintiff's harm within s 5D(1)(a) of the Civil Liability Act: see Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [20] (French CJ, Gummow, Crennan and Bell JJ) (citing March v Stramare (E & MH) Pty Limited (1991) 171 CLR 506 at 509 (Mason CJ)); Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 at [45] (French CJ, Hayne and Kiefel JJ). To the extent the defendant's written submissions sought to characterise this claim differently, I do not respectfully accept the submission. Nor do I accept that the substance of this pleading - in a general sense - is legally impermissible as contrary to law. (Even if there was a debate about these issues, I would not refuse relief with a hearing date in close proximity: the matter could be fully and properly ventilated at that time with no disadvantage, in my assessment, to either party). The plaintiff either satisfies the statutory requirements to prove causation, or he does not; the precise language used by a party cannot change the character of the test required to be applied by the Court.
At this point, the defendant's complaint becomes more refined and is to the effect that, if that is the way the plaintiff is to advance his case (albeit as a fall-back), it would be necessary for him to plead the other cause or causes of the plaintiff's harm in that sense it is not an alternative to what is required, but what is required by s 5D(1) of the CLA.
In my view, there is force to this submission and the plaintiff should be required to particularise, within the proposed amended pleading, the basis upon which he will argue, as an alternative, the 'material contribution' case.
The defendant also argues that there is presently no evidence to support a case based on material contribution. I do not agree. It is true that, so far, the expert evidence, in particular the evidence in the Joint Report to which reference has been made, has largely analysed the causation issue by reference to sole cause. But, as I have mentioned, the answers to questions 16 and 16A, as well as 17A, align with the alternative causation case: it is, and has been, "in the domain" since that report was prepared. Professor Gecz in particular has given specific attention to material contribution, obviously in a non-legal sense. Presumably, when called to give evidence, he will provide some further explanation about this. So too might the other experts - one way or the other. That is an unremarkable feature of cases of this kind, and forms part of the duty that experts have to the Court.
So, to sum up, I do not think that this is a case where it can be said that the plaintiff is proposing an amendment that has no support in evidence, or that it is likely to create any significant disadvantage to the defendant: indeed, it is hard to see, albeit on the limited material before me on this application, how its case would substantively change. If it were otherwise, then different considerations would possibly arise.
I do not consider that case management or efficiency considerations point the other way or materially bear on the issue. There is no question about the hearing date being vacated, or compromised.
In my view the dictates of justice, and consideration of the matters in ss 56 and 57 of the CPA, support the leave sought.

Absence of explanation

Generally speaking, where an application is made to amend a pleading, an explanation will be called for, particularly in circumstances where there has been delay in raising the issue: Aon at [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). Nevertheless, the absence of an explanation is not, of itself, disentitling: the fundamental requirement is to act in accordance with the dictates of justice: ss 58(1), (2)(a) and (b) of the CPA. See also Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 at [30] (Meagher JA and McCallum JA).
Here, some context is important.
The causation issue - that is, seeking to argue 'material contribution' in the sense discussed - was covered in the proposed questions that were addressed in the conclave involving the paediatric neurologists and geneticists, and their answers are contained in the Joint Report dated 23 June 2021.
It is true that, since then, this issue has remained idle. But it is not a situation where, say, the issue is now being raised for the very first time with a hearing date looming. Rather, as I see it, the situation is similar - but obviously not identical - to the circumstances in Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668-669 (Stephen, Mason and Jacobs JJ).
Furthermore, the approach is clearly envisaged by the Professional Negligence List - Practice Note SC CL 7. The Professional Negligence List final orders contained in Schedule 1 include the following: 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.
In my view, having regard to these matters, my conclusion on the prejudice ground and the dictates of justice, I do not consider that the fact that there is no direct explanation for why the pleading was not brought into line with the above evidence or otherwise actioned at an earlier point, warrants refusal of this application - on its own, or in combination with any of the other matters.

Orders

I make the following orders: 1. Subject to order 2, grant leave to the plaintiff to file the proposed second further amended statement of claim, being annexure "A" to the affidavit of Courtenay Poulden sworn 9 August 2022, by 5pm on 19 August 2022. 2. Direct that, in relation to paragraph 135 of the proposed second further amended statement of claim, the plaintiff to particularise the material facts underlying the "material contribution" allegation. 3. Grant leave to the defendant to file any amended defence by 5pm on 26 August 2022. 4. The plaintiff to serve any further expert report from Dr Harbord arising from his assessments of the plaintiff and his brother on 25 May 2021 and 16 August 2022 respectively by 5pm on 29 August 2022. 5. Costs of the plaintiff's notice of motion dated 9 August 2022 are costs in the cause. 6. The plaintiff to pay the defendant's costs thrown away by reason of the amendment to the statement of claim.

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. Decision last updated: 24 August 2022

Skues v The Sydney Children's Hospital Network

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