HIS HONOUR: The defendant is an anaesthetist. Marc Verhoeven died on 18 August 2011 in the course of what should allegedly have been a routine procedure for the arthroscopic repair of a rotator cuff tear of his right shoulder. Prior to the surgery, Mr Verhoeven had been prescribed an angiotensin-converting-enzyme inhibitor. The plaintiff alleges in separate proceedings that this medication significantly increased the risk of a hypotensive episode during anaesthesia whilst he was seated intraoperatively in the "beach chair" position. The plaintiff contends that the materialisation of this risk caused Mr Verhoeven's death and that the defendant breached her duty of care in failing to recognise this risk or otherwise to take steps to reduce or eliminate it.
The damages proceedings were commenced by statement of claim filed on 24 April 2014. An amended statement of claim was later filed on 7 October 2014. The form of both the original and the amended pleading in those proceedings is most unfortunate and bespeaks a significant misunderstanding of what a proper pleading should contain. It should not, by way of example, contain a minute-by-minute journey through medical or surgical records referring to almost everything that might have happened to a patient whilst in an operation or under an anaesthetic. This type of approach regrettably seems to have gained favour with some members of the legal profession practising in the field of medical negligence but for reasons that entirely escape me. It is an approach or style that is not to be encouraged and I would actively discourage it.
By his summons commencing the present proceedings filed on 22 November 2016, the plaintiff has sought an order that the original or principal proceedings be removed to the District Court of New South Wales pursuant to s 146 of the Civil Procedure Act 2005. That application is supported by an affidavit affirmed by Iain Miller on 12 December 2016. The burden of Mr Miller's deposition is that claims for nervous shock made on behalf of the deceased's mother and his children have been settled, so that quantification of the remaining Compensation to Relatives Act aspect of the claim is all that remains. Mr Miller considers that the complexity of the matter has correspondingly subsided and that the plaintiff may be at risk of a costs penalty if the matter remains in this Court. He put the perceived issues in the following terms:
"21. At present it appears that this matter is likely to proceed to hearing. In order to prepare the matter we will require evidentiary statements from at least 4 lay witnesses who reside in New Zealand. There will also need to be subpoena [sic] issued upon an accounting firm in New Zealand, as well as potential attendance to New Zealand in order to obtain the abovementioned statements, and review the financial records held by a liquidator and the aforementioned accounting firm.
22. As the Court will appreciate, this is likely to attract significant legal costs, and perhaps disproportionate to the value of the claim.
23. The plaintiff is concerned that in the light of these developments there may be a significant costs issue should the matter remain in the Supreme Court, in particular in relation to the costs provisions set out in Rule 42.34 of the Uniform Civil Procedure Rules.
24. As the Court will appreciate, given the admissions from the defendant, there is no issue of particular complexity or public interest that would warrant the matter remaining in the Supreme Court."
The admissions to which Mr Miller was referring are an admission of breach of duty of care and its causal relationship to Mr Verhoeven's death. Damages would therefore appear to be the only remaining issue. Mr Miller suggested earlier in his affidavit that these admissions had "significantly reduced the complexity of the matter". Even though the quantification of damages is apparently the only remaining issue, Mr Miller's opinion about the complexity of what remains in the proceedings may not necessarily be completely accurate: see Norris v Routley; Routley v Norris [2016] NSWCA 367; Norris v Routley [2016] NSWCA 212; Norris v Routley [2015] NSWSC 883; Norris v Routley [2015] NSWSC 1875; Norris v Routley [2016] NSWSC 147. (As far as I am aware, an application for Special Leave to Appeal to the High Court from the decision of the Court of Appeal has also been lodged.)
In response to the plaintiff's summons, the defendant served an affidavit from Dunzelle Scholtz affirmed on 12 December 2016. Correspondence annexed to that affidavit included a letter from the solicitor for the plaintiff to the solicitor for the defendant dated 16 November 2016 in these terms:
"We are currently seeking instructions to transfer these proceedings to the District Court of New South Wales.
Would you kindly confirm whether your client will consent to or opposes to [sic] an application to transfer proceedings to the District Court of New South Wales prior to the directions hearing on 23 November 2016."
A reply to that letter dated 18 November 2016 included the following:
"We are instructed to oppose an application to transfer the proceedings to the District Court of New South Wales.
We advise that our client is instructed not to raise any jurisdictional issues under Rule 42.34 of the Uniform Civil Procedure Rules 2005."
Ms Scholtz' affidavit also contained the following paragraph:
"The plaintiff's concerns about costs
23 As communicated in the defendant's solicitors letter dated 18 November 2016…the defendant's solicitors are instructed that, if this application is dismissed and the proceedings thereby remain in the Supreme Court, the defendant will not seek to rely on the costs provisions set out in rule 42.34 of the Uniform Civil Procedure Rules 2005."
When this matter came before me this morning I inquired of counsel for the plaintiff why this concession was not, and has not been, entirely adequate to allay any concerns that the plaintiff or his legal advisers might have had about the application of the rule if the amount of the damages ultimately recovered in the proceedings appeared to enliven its operation. I was assured by counsel that it remained open to the trial judge to disregard this concession and effectively penalise the plaintiff if the rule appeared to operate adversely to the plaintiff when the damages were finally assessed.
I was in this last respect referred to the decision of Stevenson J in Earth Capital Pty Ltd v Wentworth Global Capital Finance Pty Ltd [2016] NSWSC 1814 in apparent support for the concerns of counsel for the plaintiff. Unfortunately, that was a case in which the defendant was not prepared to give undertakings to protect the plaintiff from adverse costs implications of remaining in this Court. However, as his Honour somewhat uncontroversially observed at [13]:
"[13]…I accept the submission of the defendants that if [the plaintiff] was compelled to prosecute its proceedings along with related proceedings and was successful, it seems unlikely that a trial judge would refuse to make any costs orders in its favour simply because it recovered less than $500,000."
It seems in my opinion to be far more likely, if not in fact certain, in this case that the defendant's concession about costs that has been made plain in correspondence and in Ms Scholtz' affidavit would carry the day in a costs argument before any judge of this Court in the circumstances as I have outlined them. Indeed, the concession seems likely if not certain to foreclose even the prospect of any such argument, let alone its disposition in favour of the defendant. A simple letter of confirmation of the position from the plaintiff's solicitor in response to the defendant's solicitor's letter of 18 November 2016 would have been all that was required to put the matter beyond any microscopic doubt that could at that point possibly have remained.
In my opinion, these proceedings are wholly misconceived. The plaintiff has been too quick to file his summons when there was no issue requiring orders of this Court that had not already effectively been resolved in correspondence beforehand. I am not prepared to make the orders sought.
The question of the costs of the summons and the hearing before me remains to be decided. The defendant seeks her costs. The plaintiff opposes that application. In my view costs should abide the outcome of the proceedings before me. The proceedings should never have been commenced.
The plaintiff should pay the costs of these proceedings (2016/349041) commenced by summons filed on 22 November 2016.
In these circumstances, I make the following order:
1. Summons dismissed with costs.
[2]
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: 16 April 2018