Thomson v Young

EX TEMPORE Judgment 1Late yesterday afternoon proceedings were commenced in this Court seeking leave to appeal from an interlocutory decision of Neilson DCJ given in Coffs Harbour on Monday the reasons for which became available to the parties yesterday evening. His Honour partly refused an application brought by the defendant to amend her defence. Although that was the form of the application, its substance was a rejection of an application to vacate a hearing set down some months ago which is either to commence later this morning or has already commenced (it is now 10.35am). Initially I was asked to determine the application before me, which is a stay of the proceedings in the District Court pending the determination of the summons for leave to appeal, prior to 10am. However, argument has proceeded for the better part of an hour and I will determine it now as best I can. 2The procedural background is summarised in detail in the reasons of the primary judge and may be simplified for present purposes. By motion dated 22 August 2013 the defendant sought to amend her defence to allege novus actus interveniens. The precise terms of the amendment and the original defence are not in the papers available to me. I should say here that both Mr Romaniuk who appeared for the applicant and Mr Toomey who appeared for the respondent have in the very urgent circumstances of the case given considerable assistance to its speedy resolution this morning and none of the deficiencies in the preparation of this application reflects in any way upon that assistance. The substance of the amendment to the defence refused by his Honour was to introduce a new, major issue of fact namely whether as I apprehend it the bulk of the damage suffered by the plaintiff following a car accident was attributable to negligence at the John Hunter Hospital in Newcastle to which she was flown which answers the description provided by the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, as "inexcusably bad", "completely outside the bounds of what any reputable medical practitioner might prescribe", "so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury" or "extravagant from the point of view of medical practice or hospital routine". The consequence of subsequent medical negligence answering those descriptions is that the defendant whose negligence caused the hospitalisation in the first place, under the law as it then obtained, will not be liable for those damages. 3One difficulty confronted by his Honour was that, so far as appears from the materials before this Court, the proposed pleading and argument failed to have regard to the Civil Liability Act which, it was common ground, did relevantly apply to these proceedings. In particular ss 5B and 5D now govern what is described in s 5E as the issue of causation that the plaintiff needs to succeed upon in order to obtain a judgment. Nevertheless, it seems likely that although in due course at the trial attention will need to be given to that legislation the substance of his Honour's determination can stand. 4His Honour rejected the amendment principally on the basis as his Honour said at p 9 that, "The first question which I must determine is whether [a medical opinion recently obtained by the defendant] provides an arguable case that there has been a novus actus interveniens". In short, although his Honour found that that evidence amounted to a basis to plead negligence, it did not satisfy him that there was available to the defendant an arguable case of a novus actus interveniens (p 12). His Honour permitted a cross-claim to be brought against the hospital, noticed that the practical reality was that that cross-claim would not be able to be heard in the District Court in any event because of jurisdictional limitations, and pointed to the prejudice suffered by the plaintiff in terms of delay and uncertainty as a further reason for refusing the amendment. 5As I have noted, very promptly the proceedings in this Court were commenced and the hearing for a stay has taken place literally within hours of his Honour's reasons becoming available. To that extent the parties are to be commended. 6The applicable principles emphasise the difficulties that a party seeking to challenge an interlocutory decision of practice and procedure, and obtaining a stay in support of that challenge, must face. In Symonds v Egan National Valuers (NSW) Pty Ltd (unreported, 26 February 1996), Mahoney P said this: "It is proper to record that if a case is made out of sufficient moment to warrant the intervention of this Court during the course of a trial (and an application in relation to an amendments of pleadings would be a relevant application), then this Court will of course grant leave to appeal. But, in my opinion, before the Court will intervene to interfere with the discretion of a trial judge in relation to the amendment of pleadings while a trial is proceeding, a substantial case - I would go so far to describe it as a special case - must be made out. The case must be one which, having regard to the desirability of not interfering with the course of a trial, is sufficient to outweigh the considerations of costs of convenience and the like, sufficiently to warrant that leave to appeal be granted at such a stage." 7Priestley and Handley JJA agreed with the President. Although that application dealt with an amendment during the course of the trial, in my opinion the same principles apply here where the application immediately preceded the hearing of the trial. 8More recently, and without being exhaustive, reference may be made to Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 in which, although the strength of the applicant's claim was said to be reasonably arguable (see at [15] - [16]), emphasis was given to the fact that different considerations applied when a stay of execution of a judgment was sought (as in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685) as opposed to proceedings of the nature before me, which involve a stay of pending proceedings. Bryson JA said: "The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention." 9In Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369, Hodgson JA at [12] said: "In my opinion, the power of this Court to order a stay of proceedings in the Industrial Relations Commission should not be exercised lightly and, as stated by Bryson JA in Newcrest Mining v IRC of NSW [2005] NSWCA 85 at [5], it should generally be exercised only if the outcome which is likely if there was no stay be so adverse and severe that justice requires interlocutory intervention." 10In light of those principles, which are not exhaustively summarised above, I turn first to the merits of the proposed application for leave to appeal. The first thing that was said was that error was shown in this statement by the primary judge: "However, the defendant does not dispute that there is a causal relationship between the motor vehicle accident now in question and the eventual amputation of the plaintiff's left leg below the knee." 11On a fair reading of his Honour's reasons, which deal in the preceding paragraph expressly with novus actus interveniens and in subsequent pages extensively with that notion, in my view his Honour was there expressing in substance the test required under s 5D of the Civil Liability Act namely, the unremarkable fact that s 5D(1)(a) factual causation was established. Plainly enough, the plaintiff would have had no occasion to attend John Hunter Hospital in Newcastle but for the negligence that occurred when the collision occurred. In my opinion there is no substance in that aspect of the challenge to the primary judge's reasons, and in fairness, Mr Romaniuk conceded that if I read the reasons in that manner that would be so. 12The substantial claim that was advanced before me turns upon, as I have noted above, whether his Honour erred in finding that the opinion provided by Dr Ginsberg was incapable of answering the description of novus actus interveniens. (I interpolate, that in accordance with the reasoning by Brereton J in Paul v Cooke [2012] NSWSC 840 the question of novus actus interveniens is ultimately a s 5D(1)(b) scope of liability question. In that decision his Honour addresses Mahony v Kruschich squarely.) It was first of all said that it was wrong, on an application to amend the pleading, for his Honour to have regard to what was merely part of the evidence that the defendant wished to adduce to support the new issue. In my opinion, that submission is not well founded. Although as a matter of form the application before his Honour was merely one of amendment of the pleadings, in substance it amounted to, and was treated by his Honour as, an application to vacate the trial date in the days immediately preceding its commencement. In those circumstances, as Mr Toomey submitted, it was entirely appropriate for his Honour to evaluate whether the evidence lately proffered by the defendant was capable of answering the description in the amended defence upon which she wished to rely. The difficulty faced by the applicant in this Court is that Dr Ginsberg was not asked questions directed to establishing that level of culpability which is sufficient to engage the principles in Mahony v Kruschich. To the contrary, the questions insofar as they are set out in the doctor's report are questions of a familiar nature directed to whether there was a breach of duty. True it is, as Mr Romaniuk submits, that parts of the opinion are expressed in strong language. For example, Dr Ginsberg said that the hospital staff attending to this patient should have been "acutely" aware of the possible complications, observed that had "routine" observations been conducted, the arterial compromise would have been detected, and expressed the "firm" opinion that had appropriate treatment been carried out at the appropriate time, the plaintiff's leg would not have required amputation. In my opinion there are only slim prospects, to use again Mr Toomey's language, of the applicant for leave persuading this Court in due course that his Honour erred in concluding that those opinions did not amount to novus actus interveniens. 13In light of the foregoing, particularly having regard to the high threshold required to be satisfied on an application like this, in my opinion the present application for leave to appeal is not one that gives rise to the requisite injustice referred to in the authorities if interlocutory relief interfering with the ordinary processes of the District Court is withheld. In short, in my view the application for leave to appeal is far from a strong one, the application attracts the familiar reticence to interfere with decisions based on practice and procedure, and insufficient prejudice to the defendant in the Court below, the applicant in this Court, has been shown to warrant what is ultimately the exercise of an exceptional jurisdiction by this Court. 14I dismiss the notice of motion dated 4 September 2013. The applicant will pay the respondent's costs of that notice of motion.