By Notice of Motion filed on 21 December 2015 the plaintiff, Mofeed Louis Tanious, seeks the Court's leave to file a Further Amended Statement of Claim against two defendants, nominated as Dr Chris Dedousis and St George Hospital Aged Care Team (the first defendant), and Ms Judy Hunt and NSW Public Guardian (the second defendant). The defendants oppose the grant of leave.
The plaintiff additionally asks the Court to make orders in relation to the exercise of the function of the Office of the Coroner.
The matter has some history and, since the history of the matter is of relevance to the determination of this Motion, it is useful to set it out in summary form.
[2]
The History of the Matter
The plaintiff's proposed claim relates to purported negligence in the medical care given to the plaintiff's late father, who died in 2012.
The plaintiff's father lived with him between 2005 and 2010. In 2010, he was admitted to the St George Hospital, presenting with hypernatremia, inability to mobilise, and slurred speech. It appeared that the plaintiff had, for some years, fed his father a liquid diet of tea, powdered milk, and Sustagen.
An issue arose as to the suitability of the plaintiff to care for his father, with clinical staff at the St George Hospital expressing some concerns about discharging their patient to the plaintiff's care. The plaintiff's father required high level medical and nursing care.
In November 2010 an application was filed by the Hospital to the NSW Guardianship Tribunal for the appointment of a Financial Manager and/or a Guardian to make decisions for the plaintiff's father. On 12 January 2011 the Guardianship Tribunal made an order appointing the Public Guardian as the guardian to the plaintiff's father for a period of 12 months.
Later that month Ms Judy Hunt was appointed guardian of the plaintiff's father, as a delegate of the Public Guardian. She was later replaced as guardian by the plaintiff's family priest, Mr Yousef Fanous.
On a trial basis, a decision was made to accommodate the plaintiff's father at the home of another family member, and he was discharged from hospital to the care of a daughter.
The plaintiff sought to review the decision of the Public Guardian, filing an application with the Administrative Decisions Tribunal ("the ADT") in February 2011. The following month, he also filed a Request to Review a Guardianship Order, seeking to replace the appointed guardian.
A contemporaneous complaint made by the plaintiff against Dr Dedousis to the Health Care Complaints Commission found no evidence to substantiate the plaintiff's complaints about the care given to his father, or the "false report" alleged to have been made to the Guardianship Tribunal.
In April 2011 the Guardianship Tribunal refused to review the earlier Guardianship Order.
In July 2011 the ADT declined the plaintiff's application, having concluded that it would not be in the best interests of the plaintiff's father for him to be cared for by the plaintiff.
The plaintiff sought to challenge the decision of the ADT, filing an appeal in February 2012 that was heard by a single justice of the Court of Appeal in April 2011. The appeal was dismissed: Tanious v Public Guardian [2012] NSWCA 165.
The plaintiff sought a review of the decision of the Court of Appeal, with his application being dismissed in October 2012: Tanious v The Public Guardian [2012] NSWCA 335.
On 14 November 2012 the plaintiff's father died as a result of a number of medical complications, including renal failure and vascular disease. He was 91 years of age.
On 15 March 2013, the plaintiff commenced proceedings in this Court by way of a Statement of Claim. He was unrepresented and has remained so (despite a referral from this Court to the pro bono scheme at an earlier stage).
The nature of the claim was described by Harrison AsJ in these terms:
"[…] the gravamen of the plaintiff's complaint is that he was the one who looked after his father and when he decided to take his father to Bankstown hospital he expected that his father would be returned to his care. According to the plaintiff, while his father was in Bankstown hospital Dr Dedousis prescribed his father the drug Olanzapine, which the plaintiff says was not medically approved to be given to anyone over 65 years of age. At that time, the plaintiff's father was 89 years of age. This, according to the plaintiff, caused an acceleration of the deterioration of his father's kidney function and ultimately contributed to his early death. Because the plaintiff's father was not discharged from hospital back into his care, the plaintiff feels pain because he could no longer care for his father. The pain he feels includes humiliation and shock. I will characterise this pain as "mental harm". The plaintiff seeks compensation for the mental harm he has suffered and this is calculated as damages of $1 million [...]" (Tanious v Dedousis [2014] NSWSC 51, at [42])
Her Honour concluded that the plaintiff's claim was not properly pleaded, did not disclose a reasonable cause of action, and represented an abuse of the Court's process (at [79]). The proceedings were dismissed with an order for costs against the plaintiff.
The plaintiff sought to appeal against those orders, and his motion came before Price J in this Court. The plaintiff sought to have the orders of Harrison AsJ set aside and, further, he asked for orders "opening a criminal investigation" against the defendants, an apology to himself from the defendants, and an order for compensation to him in the sum of one million dollars.
On 9 October 2014 the plaintiff's motion was dismissed, with costs against him. He subsequently filed an application for leave to appeal, which was granted in part on 6 February 2015. Leave was limited to the refusal to review so much of the decision of Harrison AsJ as concerned proceedings against the St George Hospital (more properly, the South Eastern Sydney Local Health District) and Dr Dedousis.
[3]
The Decision of the Court of Appeal
On 19 November 2015 the Court of Appeal allowed the plaintiff's appeal from the judgment of Price J, and set aside the orders of the Supreme Court: Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356.
The Court concluded that, although it was not in doubt that there were serious defects in the pleadings, as identified in the judgments of Harrison AsJ and Price J, the plaintiff should have been given an opportunity to re-plead his claim.
On "a generous reading of the pleading" (ibid, at [7]), the Court of Appeal articulated three elements of a cause of action founded on breach of duty of care that might be available to the plaintiff, as a secondary or derivative claim:
1. Mistreatment of the plaintiff's father when hospitalised, causing consequential humiliation and shock to the plaintiff;
2. Inadequate or inappropriate care of the plaintiff's father by clinical staff of the hospital, causing a deterioration in his health; and
3. A claim for exemplary damages to recognise the harm caused to the plaintiff through the allegedly negligent treatment of his father.
The Court observed (at [11] - [12]) that,
"[…] to succeed with such a claim the appellant must establish (a) a sufficient relationship between the defendants and the plaintiff; (b) that the defendants had been negligent in the treatment of his father; (c) that the negligent treatment had caused a deterioration in the health or well-being of his father, and (d) the father's condition so caused had in turn caused the plaintiff to suffer from a psychiatric condition.
It is by no means clear that the appellant will be able to establish those matters. Nevertheless, the proceedings have not reached the stage where he has been required to present any evidence. Indeed, it is not yet known which if any of the matters identified above will be disputed by the defendants."
Having set aside the orders of Price J, the Court of Appeal also set aside the orders made by Harrison AsJ, making the following orders in their place,
"(1) - (2)(a) … the amended statement of claim filed on 26 November 2013 be struck out;(ii) subject to the requirements specified in (iii) below, the plaintiff may file and serve a notice of motion in the Common Law Division, no later than 30 April 2016, seeking leave to file and serve a further amended statement of claim;(iii) the notice of motion referred to in (ii) above shall be accompanied by a proposed further amended statement of claim which: (A) may name as defendants only South Eastern Sydney Local Health District and (if thought necessary) Dr Chris Dedousis;(B) shall be accompanied by a report or reports by one or more experts (not being the plaintiff) qualified to express an opinion as to: (1) any allegation as to a breach of duty by the defendants in the treatment and care of the plaintiff's late father;(2) any harm caused to the plaintiff's late father by the alleged breach of duty;(3) any harm suffered by the plaintiff by the alleged breach of duty; and,(4) the causal connection between any harm suffered by the plaintiff and any breach of duty to his father; (b) in the event that a notice of motion seeking leave to amend and purportedly complying with the conditions set out above is not filed and served within the time specified, the proceedings will stand dismissed;(c) the costs of the hearing before Harrison AsJ be costs in the proceedings;(d) the costs of the plaintiff's review motion before Price J be costs in the proceedings. (3) The appellant's costs in this Court as an unrepresented litigant be his costs in the proceedings."
[4]
The Present Proceedings
Mr Tanious appeared unrepresented before me this morning, to move on his Motion of 21 December 2015.
The Motion seeks orders in these terms,
1. "The honourable supreme court justice / common law division leave for plainitff's further amended statement of claim which plaintiff has filed according to the honourable court of appeal decision was made on 19th November 2015 in the case number 2014 / 319990 for further court proceedings against the defendants.
2. Defendants pay the costs of all."
The "further amended statement of claim" which the plaintiff seeks leave to file is before the Court as part of the material filed by the plaintiff, in accordance with order (2)(a)(iii) of the Court of Appeal.
In other respects, the plaintiff has failed to comply with the orders of the Court of Appeal, compliance with those orders being a condition precedent to leave being granted to file the Further Amended Statement of Claim.
The plaintiff continues to represent himself. Although he told the Court of Appeal when his appeal was heard on 16 November 2015 that he intended to obtain legal assistance, the plaintiff has not been able to do so. In submissions before me, the plaintiff outlined inquiries he has made to date in an attempt to retain the services of a legal representative. However, he indicated that he had been unable to find a practitioner willing to act for him, or even to provide him with assistance in preparing his Further Amended Statement of Claim.
Perhaps because he has been unable to obtain legal representation, the proposed Further Amended Statement of Claim prepared by the plaintiff suffers from the same defects as did the earlier claim.
Although the Court of Appeal ordered that any further Statement of Claim could only name as defendants the South Eastern Sydney Local Health District, and (if necessary), Dr Chris Dedousis (order (2)(a)(iii)(A)), the plaintiff's proposed Further Amended Statement of Claim continues to name as first defendant "Dr Chris Dedousis and St George hospital aged care team" and, as second defendant, "Ms Judy Hunt and NSW public Guardian other one defendant". There follows the notation:
""A" - First defendant South Eastern Sydney Local health district
"B" - Second defendant Dr Chris Dedousis"
A further note advises "Refer to Party Details at rear for full list of parties". In a section of the Claim headed "Details about Defendants", the first defendant is nominated as "Dr Chris Dedousis and St George hospital aged care team", with an address at Kogarah. The second defendant is nominated as "Ms Judy Hunt and NSW public guardian", with an address in Sydney. A third defendant is also named, "Kieran Pehm, and health care complaints commission Sydney".
There follows a repetition of what is extracted at [33] above, referring to "A" and "B", a local health service and Dr Dedousis.
Although it should have been a relatively simple matter, even for a litigant without legal representation, to nominate the defendants to the proposed action in accordance with the orders of the Court of Appeal, the plaintiff's Further Amended Statement of Claim fails to do so. Indeed, the additional information as to the identities of the defendants serves only to add to the uncertainty of the action.
By order (2)(a)(iii)(B), the Court of Appeal directed the plaintiff to file a report or reports from one or more experts (not being the plaintiff) who were qualified to express an opinion as to a number of specified matters (set out at [26] above). The Further Amended Statement of Claim before me is not accompanied by any expert report.
In a document that does accompany the claim, headed "Plaintiff's sixth submissions", the plaintiff referred the Court to material previously filed in support of the original Statement of Claim, being medical records, hospital discharge summaries, and his own experience as "an overseas trained general practitioner" informed by medical textbooks. Additionally, the plaintiff sought to rely upon medical records and correspondence from the State Coroner as supplying the place of expert evidence.
I have looked at each of the documents referred to by page reference in the Sixth Submissions, but none of the material identified is capable of establishing the matters set out by the Court of Appeal at order (2)(a)(iii)(B)(1) - (4). None of it could be regarded as an expert report of the nature referred to by the Court of Appeal.
Whilst the plaintiff expresses the hope in his Sixth Submissions that further evidence of medical negligence will be forthcoming from the Office of the Coroner, that hope appears to be predicated on this Court making an order directing the NSW Coroner to investigate the death of the plaintiff's father as the consequence of alleged criminal conduct.
Even were there some evidentiary basis for an order of the nature requested by the plaintiff directed to the Coroner, I am not aware of any power this Court may have in the context of this matter to make it.
It must be concluded that the plaintiff has failed to comply with the order of the Court of Appeal to file an expert report or reports in support of his proposed claim.
In short, it appears that the plaintiff has done nothing to comply with the orders of the Court of Appeal, despite compliance with the Court's orders being a necessary preliminary step in pursuing his claim. His Amended Statement of Claim is in the same terms as his earlier claim, a claim struck out by the Court of Appeal on 19 November 2015. No proper medical evidence has been obtained to establish any legitimate cause of action.
That being so, leave to file the Further Amended Statement of Claim must be refused.
Since the defendants have been put to the trouble and expense of responding to the defendant's Motion, in circumstances where the plaintiff has done nothing to comply with the orders of the Court of Appeal, I propose making an order in favour of the defendants for costs on an ordinary basis.
[5]
orders
1. Leave to file and serve a Further Amended Statement of Claim is refused.
2. The plaintiff is to pay the defendants' costs of the motion, on an ordinary basis.
[6]
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: 30 March 2016