Tinnock v Murrumbidgee Local Health District

Issues

1. There are four applications before me which were agitated at the commencement of the case yesterday and in further detail this morning, after counsel were given an adjournment to enable each party to re-group and marshal their arguments. The four issues are: 1. The defendant's application to withdraw an admission made on the face of its defence; 2. The plaintiff's application for leave to rely upon a report of a Dr Korman, served late; 3. The plaintiff's application to amend the Statement of Claim to add additional averments and particulars of negligence arising out of a report served on the plaintiff by the defendant's solicitors only recently; and 4. The plaintiff's application for leave to issue a subpoena to procure the attendance of Dr Currer to give evidence concurrently with other specialist general surgeons in accordance with the Court's usual practice. Of these four issues it may be said only the last is not very hotly contested, as things have transpired this morning.
2. In resolving these interlocutory matters, I bear firmly in mind the provisions of section 56 of the Civil Procedure Act 2005 (NSW) and, in particular, that the overriding purpose of the laws governing the conduct of civil litigation in this State is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings"(my emphasis). I interpolate that often, especially following the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; 239 CLR 175, the requirements of the "overriding purpose" are considered in terms of the imposition of strict efficiency or, perhaps forensic diligence. But it is always important, I think, to remember the effect of section 58: when exercising powers in relation to practice and procedure under the provisions of the Act or Rules, the Court must seek to act in accordance with the dictates of justice.

Withdrawing formal admission- evidentiary context

1. I turn to the first issue. The narrative of material fact contained in the various iterations of the plaintiff's Statement of Claim include the following (paragraphs 9, 10,11, and 12): "On or about 9 June 2010 the plaintiff was discharged from the premises of the defendant [following the repair of the incisional hernia]. The plaintiff developed an infection of the wound. On or about 13 June 2010 the plaintiff was re-admitted to the hospital of the defendant for treatment of the wound site as the wound site was leaking continuously and to excess. On or about 15 June 2010 the plaintiff underwent further surgery and remained in hospital for one week."
2. To those averments, since the first iteration of the defendant's defence filed on 13 February 2013, the defendant has pleaded: "[The defendant] admits paragraphs 7, 8, 9, 10, 12 and 13 of the Statement of Claim."
3. It is important to say that the plaintiff's case in negligence, in essence, is that there were measures available to Dr Payne, in carrying out the repair of the incisional hernia that ought to have been taken which would have had the effect of reducing, if not eliminating, the risk of post-surgical infection which subsequently materialised in this case.
4. There seems to be no real issue that the plaintiff suffered a post-surgical infection. Her case is that after a series of treatments and procedures at Wagga Wagga Base Hospital, which she would say were ineffectual, her condition worsened and she underwent further procedures at the Calvary Hospital, Canberra directed to treating what was, by then anyway, undoubtedly a serious case of post-surgical infection.
5. Now the defendant seeks to withdraw the admission that the plaintiff suffered a post-surgical infection it made by admitting par 10 of the Statement of Claim. Its argument is more nuanced than that. During the course of argument yesterday, I expressed the view, to which I adhere, that the better reading of the narrative of material facts in the Statement of Claim is that the allegation of the onset of infection should be understood as having occurred by the time the plaintiff was re-admitted to Wagga Wagga Base Hospital on 13 June 2010. It seemed to me that essentially flows from the chronological and, indeed, logical, narrative of the plaintiff's case contained in the Statement of Claim. However, given the absence of a precise averment of the date of the onset of the infection in paragraph 10 of the Statement of Claim, I acknowledge a degree of possible ambiguity.
6. In seeking to withdraw the admission, the defendant reads and relies upon the affidavit of Timothy Peter Cummings affirmed on 8 February 2016. Mr Cummings is the solicitor with the carriage of the matter under the supervision of the solicitor for the defendant. His firm, TressCox Lawyers, assumed conduct of these proceedings in September 2013 after the defence, to which I have referred, was filed. Mr Cummings sets out some of the procedural history of the matter, including the gathering of expert evidence on behalf of the defendant and the conduct of the conference of experts directed to take place by the registrar in accordance with the Rules and Practice Notes governing litigation of this type.
7. An expert report was obtained by the defendant as long ago as 11 November 2013, and served on 9 December 2013, from Professor Christophe Berney, a specialist surgeon. Without setting out in detail the content of Professor Berney's report, I think it is accurate to say that, in emphatic terms, following his inspection of the primary clinical material in the case, Professor Berney expressed the opinion that there was no evidence of the onset of any post-surgical infection as at 13 June 2010 or, indeed, at any time during which the defendant was responsible for the treatment of the plaintiff.
8. Contrary views have been expressed in other evidence and, in particular, by the plaintiff's qualified experts, Professor Morris, Dr Miller, and Dr Rea. I will leave aside for the moment the opinion of Dr Korman and also the opinion of Dr Currer; however, the opinion of the latter may be understood as being generally to the same effect as the plaintiff's experts, at least on this point.
9. When the matter was referred for a conference of experts in accordance with the Rules, the parties were unable to agree upon the questions or issues that should be referred for their consideration. As sometimes happens, perhaps lamentably, each party was allowed to submit their own formulation of questions for consideration by the experts in conference.
10. Question 9 of the plaintiff's questions appears on page 13 of the joint report. I infer relying upon the admission contained in the pleadings, it asked the experts to assume that there was an infection present at the second surgery on 15 June 2010. However the defendant had been permitted to ask question 8, which was dealt with on page 16 of the joint report. Question 8 is in the following terms: "Without the benefit of hindsight, was there any evidence diagnostic of infection when the plaintiff re-presented to Wagga Wagga Base Hospital on, (a), 13 June 2010, (b), 27 June 2010 and, (c), 3 July 2010?" [Emphasis added.]
11. To be fair to the parties I will set out the answers of each expert in full. Professor Morris answered this question as follows: "(a), Worrying (sic) (b) a wound swab grew organisms. The presence of an open wound also indicates infection (c) yes." Dr Rea as follows, "(a) worrying (b) possible (c) yes." Professor Berney: "(a) no definite evidence (c) no evidence (c) no evidence, and the decreasing CRP was inconsistent with infection development." Dr Currer: "(a) & (b) there was no diagnostic evidence of infection (c) clinical suspicion of infection in the absence of biochemical or microbiological proof." Dr Miller concurred with Professor Morris.
12. I infer from this material that notwithstanding what I regard as the real meaning and effect of the pleadings, from at least the initial service of the report of Professor Berney in December 2013, there was evidence which demonstrated a real issue about when the infection arose and whether it arose during the time that the defendant, and I add, Dr Payne, were responsible for the plaintiff's treatment.
13. It might also be said, looking at the joint report alone, that so far as the evidence concerning whether the infection was extant on 13 June 2010 is concerned, as I have pointed out, at least in the joint report, the opinions of the plaintiff's surgeons is not what one might call strongly supportive of the proposition given the use of the descriptor "worrying". In context I would understand this as indicating something to the effect that there are reasons to be concerned about that matter at that time, without there being any definite proof.

Procedural background

1. It is important before resolving this issue to digress somewhat, to record something of the history of the litigation which falls into that category which lawyers and judges might describe as unfortunate.
2. The proceedings were commenced in the District Court of New South Wales in 2012. At some stage they were removed, or transferred, to this Court because it seemed likely, on the evidence the plaintiff had marshalled that the damages to which she may be entitled, if she succeeds on liability, exceeded the District Court's monetary jurisdictional limit. Upon its removal to this Court it was subject to the usual case management procedures, which I need not go into, which culminated in the preparation of the joint report, a number of directions hearings before Garling J, who was then judicially managing the case, and finally, listed for hearing before me, as chance would have it, on 9 March 2015.
3. At that stage there was no evidence put on by the defendant from either Dr Payne or from Dr Gundara, and the battle lines were drawn as I have indicated. The matter was adjourned when called on for hearing before me in the most unfortunate circumstances. Counsel who had long been briefed for the defendant (not Mr Barnes) fell seriously ill over the weekend prior to the expected commencement of the hearing. Given those circumstances I expedited the further listing of the matter, and a date was allocated in April of 2015.
4. The matter was listed before Harrison J. Just before the commencement of the case a statement from Dr Payne was served on the plaintiff by the defendant's lawyers. It is a very detailed statement, setting out Dr Payne's recollection of his treatment of the plaintiff, assisted of course by the primary clinical records. Dr Payne explains in that statement why he never formed a view - I will put it neutrally - that the plaintiff was suffering from a post-surgical infection, as opposed to the development of a seroma. I need not pause to explain those terms for present purposes.
5. I will say, unsurprisingly the service of the statement from the doctor led to a further application for adjournment, which was granted. It also led, on both sides of the record, to further exploration of the "issue" of when the post-surgical infection was evident, and in this regard, obviously prudently, Dr Payne's statement was forwarded to the plaintiff's experts with a long request for detailed consideration of aspects of it. The defendant forwarded it to its experts, for the same purpose.
6. The plaintiff also diligently, after the second adjournment, qualified Dr Korman, a micro-biologist, to provide an opinion on the same question, based upon his inspection of the clinical material. Most of this material, as sometimes happens, was exchanged late in the piece. For instance, although Dr Korman's opinion was requested in May 2015, he wasn't able to provide a report to the plaintiff's solicitors until 27 January 2016, on which day it was served on the defendant, as I have said, out of time.
7. It transpires that the defendant's supplementary reports were served on the plaintiff around the same time. Just to add to the apparent complexity, the defendant has elected not to rely upon the opinions of Dr Currer and to exercise its right to legal professional privilege in respect of his reports, a matter from which I draw no adverse inference whatsoever. A party is always entitled to exercise that right, which is not a mere forensic advantage but an important civil liberty.
8. I return to the affidavit of Mr Cummings. Mr Cummings says this: "11. I have always regarded as disputed the issue of the presence of any infection in the plaintiff's wound or mesh between performance of the initial procedure on 7 June 2010 and late July 2010 when the plaintiff sought treatment at Calvary Hospital, Canberra. 12. I did not read the admission of paragraph 10 of the initial statement of claim by [the previous lawyers] an admission that an infection arose between 9 and 13 June 2010."

Principles

1. The principles concerning withdrawal of admissions are reasonably well defined, and generally speaking reference is most frequently made to the analysis of Santow J (as his Honour then was) in Drabsch v Switzerland General Insurance Co Ltd (Supreme Court (NSW), 16 October 1996, unrep). In that case his Honour set out five principles which he regarded as informing the exercise of the Court's general discretion in this area. I would summarise and extract his Honour's analysis as follows [emphasis added]: "1. Where a party, under no apparent disability makes a clear and distinct admission which is accepted its opponents and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted. 2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guideline being that the person seeking on review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded. 3. Where a court is satisfied that the admissions have been made after consideration and advice such as from the parties' expert and after a full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn… 4. It would usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters… 5. [A] court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited upon another party." [Citations omitted.]
2. I think, in the 21st century, and indeed nearly 20 years late, it's important to make the following observations about what his Honour said. First, it is clear that his Honour was entertaining an appeal from a decision of the Master, and the words I have emphasised demonstrate that that was, inferentially, at the fore-front of his thinking when formulating the principles. This, I think, reflects the well-known, indeed fundamental, principle discussed by the High Court in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, at [7]-[8] that a party on appeal is bound by the way in which a case is presented at first instance. This fundamental principle is subject to certain, very jealously guarded exceptions. When considering a case at first instance then perhaps the stringency with which his Honour expressed himself is not entirely appropriate.
3. The second thing to bear in mind is the advent of the Civil Procedure Act. His Honour's references to court efficiency and costs orders as a salve for prejudice need to be considered through the prism of those provisions. It is quite clear that efficiency, although always decisive, is much more relevant now than then. Moreover it is now very well recognised that prejudice is not to be measured only in terms of money and delay. The intangible effects of litigation on the non-legal participants, such as the parties - Mrs Tinnock here - and on other individuals caught up the litigation - such as Dr Payne - also need to be borne firmly in mind. Those disadvantages cannot be cured by an order for costs.
4. Looking at cases where Santow J's principles have been applied at first instance, the approach of Brereton J In the matter of Dymocks Book Arcade Pty Ltd [2013] NSWSC 298 is apposite. His Honour referred to the decision of Young CJ in Eq (as his Honour then was) in For The Good Times Pty Ltd v Coltern Pty Ltd (2007) NSWSC 108 at [3], where the basic principle was expressed in this way: Essentially, the Court is after the truth...thus, in principle an erroneous admission should be able to be withdrawn unless other factors outweigh. The principle factor that might otherwise outweigh is that there is such a great prejudice to the other party, because of the way in which that party has prepared his or her case on the basis of the admission, that leave should not be given.
5. It seems to me, in applying Santow J's principles at first instance, that one should also bear in mind the fundamental principles underpinning the significance of pleadings in an adversarial legal system. These were summarised in a pithy way by the High Court in Dare v Pulham [1982] HCA 70; 148 CLR 658 at [6] in the following terms [citations omitted]: "Pleadings and particulars have a number of functions: They furnish a statement of a case sufficiently clear to allow the other party a fair opportunity to meet it; they decide the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at trial; and they give a defendant an understanding of a plaintiff's claim in aid of a defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at trial, the relief which may be granted to a party must be founded on the pleadings. But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed, though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence". [Emphasis added.]
6. The importance of this quote to the instant case is the consideration I have emphasised that the parties may depart from the pleadings and fight the case on issues chosen at the trial. In the world of modern case management that departure may occur equally during the course of preparation managed by the court. And it is apparent to me, from the evidence I have recited, that notwithstanding the preferred reading of the admission that I have expressed, and a degree of reliance by the plaintiff's legal advisers upon the admission, at least in terms of the formulation of the questions for the joint experts, there has been a full exploration, on both sides of the record, of the issue about when the infection arose, and when a reasonable surgeon in the position of Dr Payne ought to have been aware that it had occurred, or at least, needed to be considered.

Decision on withdrawing admission and Dr Korman's report

1. Returning to Santow J's principles, but qualified in the way I have described, I am of the view that the defendant has made out a case for withdrawal of the admission appearing on the face of the pleadings, for a number of reasons. First, as I have said, there was a degree of ambiguity in relation to the admission. It certainly does not qualify for what Santow J called a clear and distinct admission. It was made by other lawyers, prior to expert evidence having been obtained, and the view formed by Mr Cummings, although not my preferred view, was open, given the degree of ambiguity that attended the manner of pleading.
2. Secondly, this is a first instance case, not an appeal, and a greater degree of flexibility, in the interests of justice, should be permitted rather than a strict reading of Santow J's principles suggests. It follows, from what I have said, that I would not regard the admission made as early as February 2013 and continued in the various re-iterations of the defence thereafter as one made with the deliberateness and formality to which Santow J referred.
3. Thirdly, although I am not satisfied that the admission is contrary to actual facts, I am satisfied that there is a live issue about the question of when the infection arose, and the admission was made before the expert evidence was gathered, and without, therefore, due consideration of material matters. Fourthly, I accept that there has been reliance to some degree upon the admission, but not to the exclusion of preparation of cogent evidence to meet the contrary opinion expressed by Professor Berney.
4. Fifthly, I am of the view that court efficiency is not decisive in this case. I do bear firmly in mind that a change of position can affect the concerns, anxieties and worries of the actual parties to the litigation, but as we are at the final hearing, that matter will be assuaged by the consideration that the trial should be concluded soon.
5. Sixthly, looking at the matter as expressed by Young CJ in Eq, I am concerned about prejudice to the plaintiff in terms of not being permitted to rely upon the late-received report of Dr Korman. It seems to me that if the issue is to be live, as my ruling will permit, then the plaintiff ought to be permitted to rely upon the opinion of a specialist in infected diseases and microbiology. I raised this questioned with learned counsel for the defendant in argument, and he advanced arguments why I should not permit that to be done. However it seems to me that in circumstances where the defendant is seeking what is essentially an indulgence from the Court at the outset of the trial, then these two matters should go together, and leave to withdraw the admission will be conditional upon the defendant withdrawing its objection to the tender of Dr Korman's report, provided Dr Korman is available for cross-examination. I will give the parties liberty to apply in respect of that condition.
6. It follows from what I have said that, for effectively the same reasons I have given for allowing the relief the defendant seeks, I will accede to the plaintiff's application to rely upon the report of Dr Korman.

Leave to amend Statement of Claim and evidence of Dr Currer

1. That brings me to the third and fourth issues, which, in some respects, hunt together as well.
2. As I have said, the plaintiff is seeking to amend the statement of claim to add additional averments. Those averments and particulars, Mr Bartley of Senior Counsel (who appears with Mr R Ingram for the plaintiff) has informed me arise out of the more recent report of Dr Currer, a consultant surgeon qualified to give evidence on behalf of the defendant, which I have looked at amongst the material I have been asked to consider for the purposes of these applications.
3. Essentially Dr Currer's view possibly has changed - I emphasise "possibly changed" - somewhat since the joint report. He seems now to proceed on the basis that there may have been evidence of infection as at the date of the first re-admission of the plaintiff to the hospital on 13 June 2010. In any event, whether I am correct in my reading of his report in that regard, on that assumption he has suggested certain measures which should have been taken at that time to guard against the worsening of the plaintiff's condition, as seems to have occurred. In general terms, those measures involved either removal of the prosthetic mesh that had been used as part of the procedure to repair the incisional hernia, which I infer may have been involved in the infection, and giving the plaintiff an extended course of intravenous antibiotics, or if the mesh was to be left in situ, the plaintiff ought to have remained in hospital to undergo the extensive intravenous antibiotic treatment until the hospital was reasonably satisfied that the infection had been cured.
4. There would be no utility in permitting those amendments to the particulars of negligence if Dr Currer's opinion was unlikely to see the evidential light of day in this trial. As I have said, Mr Barnes of counsel for the defendant has made it quite clear that he has no intention of calling Dr Currer, or of tendering his report, and he will object to any production of the reports on the basis of legal professional privilege: Sevic v Roarty (1998) 44 NSWLR 287. However it seems to me that, for the reasons addressed by the Court of Appeal in R v P [2001] NSWCA 473; 53 NSWLR 664 (Hodgson JA at 680 [48] to 683 [59]; and Ipp AJA (as his Honour then was) at 684 [70] and 686 [82]) it is open to the plaintiff to secure Dr Currer's attendance, and indeed to call him to give evidence as part of the concurrent evidence of the joint experts.
5. Legal professional privilege is an important civil liberty rather than a mere exclusionary rule of evidence. I acknowledge the entitlement of the defendant to exercise that right, and, on the basis of it, to object to any tender of Dr Currer's reports by Mr Bartley. But having considered the contents of his reports for the purpose of ruling upon these matters, I am satisfied that very largely the opinions he has expressed in his reports depend upon views he has formed from his own inspection of the primary clinical material relating to Mrs Tinnock's treatment, which I am well satisfied will be admitted in evidence before me. I am satisfied also that his opinions as expressed in the joint report and the opinions he may hold do not depend in any substantial or material way upon any confidential communication passing between him and the solicitors for the defendant. Moreover, there can be no suggestion whatsoever that his participation in the conference of experts and his subscription to the opinions expressed in the joint report is in anyway subject to legal professional privilege. Those matters occurred pursuant to the case management directions made by Court, and no party has any right to assert any claim for privilege in respect of the opinions there expressed.
6. That the plaintiff should be permitted to call Dr Currer as a witness follows from the old saying, much familiar to lawyers, that "there is no property in a witness". In this regard I refer to the, albeit dissenting, speech of Lord Nicholls of Birkenhead in Re L (A Minor) Police Investigation: Privilege [1997] AC 16 at 34. His Lordship said this: "The fact that an expert or other potential witness has already been approached by one party, and given a statement to that party, does not excuse him from giving evidence at the hearing at the behest of another party. If necessary his attendance can be compelled by service of a subpoena. He cannot be required to disclose the contents of communications between himself and the first party's legal advisor. But his evidence on the issue before the court, which is all that is material, can be compelled."
7. That dissenting judgment was referred to with approval by Hodgson JA in R v P. I should record that, despite his opposition strenuously advanced yesterday, Mr Barnes, upon consideration of the issue overnight softened his opposition somewhat to this course. Given that Dr Currer can be compelled to give evidence in the case, I am of the view that there is utility in allowing the proposed amendments sought by the plaintiff.
8. I am not of the view that the defendant will be prejudiced by allowing those amendments at this stage, given that it has been seised of Dr Currer's report since October last year, and it will, of course have access, and may already have had an access to the views of Professor Berney about those matters.
9. Accordingly for the reasons I have given, each party has been successful on each of the applications she or it advanced before me, and I direct the parties to bring in short minutes of order giving effect to these reasons.

Amendments 25 February 2016 - Paragraph 28 "accepted its opponents" is changed to "accepted by its opponents" Paragraph [30] take out the word "that" in first sentence. Paragraph [31] "erroneous submission" changed to "erroneous admission" 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: 25 February 2016