Williams v Fraser - [2019] NSWSC 876 - NSWSC 2019 case summary — Zoe

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Williams v Fraser

[2019] NSWSC 876

Supreme Court of NSW|2019-07-03

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-07-03

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Judgment

HER HONOUR: By notice of motion filed 29 May 2019, the plaintiff seeks firstly, an order extending the time by which she is to serve the evidence upon which she relies; secondly, that leave be granted to file and serve her proposed further amended statement of claim ("PFASC") served on 17 May 2019; that the joint expert causation conclave be reconvened; and finally, that leave be granted to the plaintiff to serve a report in reply to that of Mr Greg Schneider dated 19 May 2019.
The plaintiff is Hailee Williams. The first defendant is John Fraser ("Dr Fraser"). The second defendant is Dr Michael Stening ("Dr Stening"). The third defendant is Craig Seabury, a physiotherapist ("Mr Seabury"). The plaintiff relied upon two affidavits of her solicitor Sheri, Carolan, dated 29 May 2019 and 2 July 2019. The first and second defendants relied up the affidavit of their solicitor Alexander Georgeopoulos dated 18 June 2019. Mr Seabury relied upon the affidavit of his solicitor James Derek Berg, dated 12 June 2019. The parties relied on their court books (3 volumes).
These proceedings are listed for hearing commencing on 12 August 2019 for 10 days duration. As there is some urgency with this judgment, my reasons will, by necessity, be brief.
The defendants oppose the plaintiff being permitted to rely on the report of Associate Professor Sekel dated 9 April 2019; the plaintiff being granted leave to serve her PFASC served on 17 May 2019; and the reconvening of the joint expert conference on causation.
Drs Fraser and Stening do not seek to be heard in respect of the plaintiff's application to serving a report in reply to Mr Schneider's report dated 19 May 2019. I grant leave to the plaintiff to serve Associate Professor Sekel's report by 5.00 pm on 15 July 2019.

[2]

The nature of the case as currently pleaded

The plaintiff was born in 1994 with a congenital or dysplastic spondylolisthesis that results in abnormal bone formation in the lumbo-sacral spine.
The plaintiff's case against the defendants relates to their respective failure to refer, investigate, diagnose and/or treat her congenital spondylolisthesis in a timely manner, which caused or materially contributed to spinal cord compression and other injuries and disabilities.
The case against Dr Fraser, who is a radiologist, essentially relates to his failure to report on the plaintiff's 24 May 2012 hip and pelvis x-rays an identifiable, albeit slightly obscured, lumbar L5 dysplastic bifid neural arch with right side hypoplastic pars defect. It is alleged that had he correctly identified the pars defect, the plaintiff would have been referred for further radiological studies and these would have revealed a pre-existing spondylolisthesis, such that she would have been diagnosed with a spondylolisthesis Grade 0. The plaintiff would then have been treated conservatively, given lifestyle advice to prevent injury and may never have suffered spinal cord compression. Further, she would not have been referred for physiotherapy without a full investigation, and she definitely would not have been subjected to spinal mobilisation by Mr Seabury.
The case against Dr Stening, who is a paediatric orthopaedic surgeon, essentially relates to his failure to correctly interpret the 24 May 2012 x-rays, and to elicit, investigate and/or record the plaintiff's history of lower lumber back pain during the 20 June 2012 and/or 3 December 2012 consultations. Had Dr Stening elicited and investigated the cause of the plaintiff's back pain, then her pars defect would have been managed and treated before it had progressed to a Grade 3/4 lumbar L5/S1 spondylolisthesis which partially compressed her spinal cord. Further, the earlier identification and management of the plaintiff's lumbar L5/S1 spondylolisthesis would not have involved physiotherapy and would not have involved spinal mobilisation as part of her treatment.
Mr Seabury is a physiotherapist to whom the plaintiff was referred by Dr Stening for treatment of the diagnosed hip problem. The case against Mr Seabury is that he should have realised during the course of his treatment of the plaintiff between 10 January 2013 and 24 May 2013 that her problems arose from her back and, having so realised the true source of her pain, he should have referred the plaintiff back to Dr Stening for review. It is claimed that his negligence caused damage to the plaintiff because, if he had referred the plaintiff back to Dr Stening her pars defect would have been managed and treated before it had progressed to a Grade 3/4 L5/S1 spondylolisthesis and partially compressing her spinal cord.
The expert physiotherapist retained on behalf of the plaintiff, Michael Ryan, expressed the opinion that Mr Seabury had not departed from acceptable standards of care prior to a consultation on 28 March 2013, following which he believed Mr Seabury should have referred the plaintiff back to Dr Stening. Mr Seabury's expert physiotherapist, Mr Schneider, expressed the view that Mr Seabury had not relevantly departed from acceptable standards on any occasion during the course of his treatment of the plaintiff.
On 22 May 2013, Thomas Samels, an osteopath, issued a referral for plain x-ray of the plaintiff's lumbar spine and in the referral form he completed, noted previous x-ray of the left hip suggested endplate pathology.

[3]

History of the proceedings and procedural steps taken to date

A joint report of orthopaedic surgery experts was issued on 9 March 2018 following a conclave on 20 February 2018.
A joint report of expert radiologists was issued on 1 May 2018 following a conclave on 30 April 2018.
Joint reports of expert physiotherapists was issued on 5 March 2018 following a conclave on 8 and 27 February 2018; 27 March 2018 following a conclave on 13 March 2018; and 26 April 2018, as a supplementary and amended report.
A joint report of causation experts was issued on 20 March 2018 following a conclave on 20 February 2018.
The proceedings were listed for hearing for 10 days. That hearing was vacated because the plaintiff elected to undergo surgery.
The joint report of causation experts recorded the following agreements: 1. that there was a change in the plaintiff's presentation by April 2013, suggestive of a progression of the spondylolisthesis; 2. that the progression in the plaintiff's symptoms from February 2013 was not as a result of the physiotherapy treatment that she was receiving from Mr Seabury; 3. that it was likely the plaintiff would still have come to surgery in any event; 4. that the plaintiff would have required the same surgery that she ultimately had "decompression and fusion at L5/S1"; and 5. that the degree of mechanical correction as was achieved by the treating surgeon, Dr Cree, represented the same degree of mechanical correction as was likely in any event.
The point of difference between the causation experts is in respect to claimed neurological deficits allegedly suffered by the plaintiff. The view of the plaintiff's two experts is that, as a result of delays in diagnosis and treatment, the plaintiff had been left with a partial cauda equina syndrome, leaving her with bladder problems, stress incontinence and urgency, numbness around the perineum and some numbness in the legs. It is the view of all three defendants' experts that the plaintiff did not suffer from a cauda equina syndrome and had no neurological deficits.
In summary, it was the view of the defendants' experts that, whether or not there had been any departure from acceptable standards by any of the defendants, the plaintiff had suffered no damage. The plaintiff seeks firstly an extension of time to serve evidence of a "new" medical issue raised in Associate Professor Sekel's report dated 9 April 2019; secondly, that the causation experts answer some question in relation to the interbody cage option; and finally, leave to file the PFASC. I will deal with the first two issues together followed by the last issue.

[6]

The defendants' submissions

The defendants submitted that the "new" allegation that alternative surgery, being the interbody cage, had the likelihood of a better outcome and could have been undertaken but for the cauda equina syndrome which was the result of delays in diagnosis, is problematical for the following reasons: 1. the defendants' case is that there was never a cauda equina syndrome; 2. on 12 June 2013, Associate Professor William Walter, who referred the plaintiff to Dr Cree, does not appear to have identified a cauda equina syndrome, but expressly referred to the possibility that such neurological symptoms might arise; 3. Dr Cree is not a witness in the case; and 4. Associate Professor Walter is not a witness in the case.
If Dr Cree made treatment decisions on the basis of the presence of a cauda equina syndrome, it is argued that he did so in error. The plaintiff's legal representatives have written to Dr Cree asking for clarification as to his statements in his two reports concerning the presence of cauda equina syndrome but he has not replied.
The plaintiff seeks leave to serve the report of Associate Professor Sekel in support of a so called new allegation that the (disputed) cauda equina syndrome caused by delays in the recognition and treatment of the spondylolisthesis led the treating surgeon, Dr Cree, to choose a "less aggressive approach" to her treatment, with the consequence that the outcome of her surgery has not been as good as it might have been.
All the defendants agree, as do I, that the issues of the reasonableness of Dr Cree's treatment decision, whether or not there was evidence of a cauda equina syndrome when the plaintiff was seen by Associate Professor Walter and then by Dr Cree, and the probability that the plaintiff would have obtained material benefits by reason of the interbody cage surgery, would require the defendants to first obtain additional causation expert evidence and secondly answer the additional questions outlined later in this judgment in a supplementary conclave.

[7]

The contents of Associate Professor Sekel's report dated 9 April 2019

The insertion of interbody vertebral cage(s) would have, according to Associate Professor Sekel, restored the plaintiff's intervertebral body height and reduced pressure on nerve roots. Further, Associate Professor Sekel gave the following opinion: "If an intervertebral body cage fusion had been added to the posterior spinal fusion before mid April 2013 in Ms Williams' case, as there already was improvement of the spondylolisthesis to a Grade 1, and a successful fusion was obtained, then the rate of fusion would not have been improved in Ms Williams's individual case. However more normal anatomy would have been restored i.e. the disc space would have been widened as would have the root canals and the necessity for a further operative procedure to widen the L5 nerve root canal, more likely than not, would have been avoided. An even better restoration of anatomy possibly would have occurred, returning L5/S1 level to a "Grade 0" slip situation. The pain that arose from the L5 nerve root continuing compression that redeveloped by February 2017 and then persisted until further decompression in March 2018 more likely than not, would have been avoided as well as the necessity for the further operative procedure of 2018. The redevelopment of lower back pain probably would not have been prevented."
Associate Professor Sekel's opinion is based upon a comment in the report of Dr Cree to the plaintiff's general practitioner Associate Professor Walter dated 19 February 2018. The comment is in the following terms: "I have explained again that no interbody cage was placed at the time of the index procedure because of the presence of a cauda equina syndrome" (my emphasis).
The significance of what Dr Cree seems to have believed was evidence of a partial cauda equina syndrome was first identified in the report of Dr Cree dated 12 June 2013, addressed to referring orthopaedic surgeon Associate Professor William Walter, where he is recorded as saying: "Certainly, I would not wish to perform a sacral osteotomy and interbody cage placement in the presence of cauda equina involvement" (my emphasis).
Associate Professor Walter had an MRI performed and that MRI established that there was no cauda equina syndrome. Dr Cree in his report stated, "I'm going to do this operation so as to prevent a cauda equina syndrome." Dr Cree then says "I did this operation because there was a cauda equina syndrome" (T 4.5-9).
However, this report of Dr Cree dated 12 June 2013 was available to the plaintiff's legal representatives as early as March 2015, and was provided to Associate Professor Sekel prior to him preparing his initial report. It was also provided to the causation experts, including Associate Professor Sekel. It appears that Associate Professor Sekel had overlooked the report of Dr Cree dated 12 June 2013. The other causation experts also had Dr Cree's report addressed to Associate Professor Walter dated 12 June 2013 prior to the conclave, but did not have the report of Dr Cree dated 19 February 2018. Further, the conclave's attention was not specifically drawn to the letter of 12 June 2013 in the questions it was asked.

[8]

The law - Civil Procedure Act 2005

Section 56 of the Civil Procedure Act 2005 (NSW) relevantly reads: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule."
Practice note SC Gen 11, Joint Conference of Expert Witnesses reads: "Objectives of joint conferences 5. The objectives of such directions for a joint conference of experts include the following: • the just, quick and cost effective disposal of the proceedings; • the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called; • the consequential shortening of the trial and enhanced prospects of settlement; • apprising the Court of the issues for determination; • binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed); and • avoiding or reducing the need for experts to attend court to give evidence."
Uniform Civil Procedure Rules 2005 (NSW) rr 31.24, 31.26 and 31.28 read: "31.24 Conference between expert witnesses (1) The court may direct expert witnesses: (a) to confer, either generally or in relation to specified matters, and (b) to endeavour to reach agreement on any matters in issue, and (c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and (d) to base any joint report on specified facts or assumptions of fact, and may do so at any time, whether before or after the expert witnesses have furnished their experts' reports. … (3) An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect. (4) Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought. (5) An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected. (6) Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing. 31.26 Joint report arising from conference between expert witnesses (1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c). (2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement. (3) The joint report may be tendered at the trial as evidence of any matters agreed. (4) In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court. (5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report. 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties: (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)."
Essentially, the plaintiff now seeks to rely upon a further report from Associate Professor Sekel, a participant in the causation joint conference (and also the orthopaedic surgeon's joint conference) where he changes his position on a causation issue. That is, whereas he previously agreed that the plaintiff would have undergone the same surgery in February 2013 or March 2013 as she ultimately underwent in June 2013, he now seeks to say that surgery during the period February 2013 to the end of April 2013 would have involved a different procedure (utilising an interbody cage fusion together with a posterior pedicle and screw fusion), which carries with it a statistically higher success rate and would have restored a more normal anatomy (see Exhibit E, Aff Georgeopoulos).

[9]

The supplementary questions

The supplementary questions that the plaintiff now seeks to ask the causation experts are: "1. It appears that Dr Cree did not perform surgery to insert inter body vertebral cages on the plaintiff on 13 June 2013 due to the presence of cauda equina symptoms. (a) Do you agree with this statement in terms of the suitability of this type of spinal surgery in the presence of cauda equina symptoms? (b) If the plaintiff had been referred to an appropriate specialist in the timeframe for which our reported upon during joint expert conference in say February and/or at the latest by the end of April 2013 before the cauda equina symptoms manifested would the inter body vertebral cages surgery have been the procedure most likely undertaken? (c) How does the interbody vertebral cage surgery compare with a spinal fusion such as what the plaintiff underwent in June 2013 in terms of its known outcomes? Please outline the mechanism by which inter body cage surgery achieves spinal alignment and the like. (d) Does the place of an interbody vertebral cage increase the space and height within the spine? If yes, how does this prevent or reduce the occurrence of nerve root disturbance? 2. Please assume that the interbody vertebral cage surgery was performed by the mid-April 2013. Can you please outline, on the balance of probabilities, what if any, residual lumbar spine and lower limb pain that the plaintiff would have been likely to suffer post April 2013."
I accept that the plaintiff's expert, Associate Professor Sekel, overlooked what he says is the significance of the contents of Dr Cree's report of 12 June 2013. As of 29 May 2019, at the latest, the plaintiff's legal representatives have put the defendants on notice of the supplementary report of Associate Professor Sekel and the need for further questions to be answered by the causation conclave.
The plaintiff is a young woman. She has relied upon her legal representatives to conduct her case. It appears that what her legal representatives have recently identified is an important issue concerning the alternate surgery involving the insertion of an interbody vertebral cage. The issue is whether, had that surgery been carried out, would it have been appropriate and would it have had a better outcome.
The plaintiff's case currently presents some difficulties. So far as the defendants' complaints that Dr Cree and Associate Professor Walter are not witnesses in this case, they can, if necessary, be subpoenaed.
As previously stated, the defendants oppose the service of the additional report of Associate Professor Sekel and the causations experts answering the further questions. Counsel for Drs Fraser and Stening referred me to UCPR r 31.28(4)(a), where exceptional circumstances are required for the plaintiff to be granted leave to serve the additional report of Associate Professor Sekel. According to the defendants, there are no exceptional circumstances and therefore leave should be refused.
Mr Seabury submitted that if the PFASC were amended to add as an additional consequence that the interbody cage surgery would have taken place if there had been an earlier referral, then it is possible that the opinion of an expert in spinal surgery at the time could be obtained and then there could be a conclave. Counsel for Mr Seabury submitted that he was not able to say more, as he did not know how it would pan out and how whatever was agreed might affect the capacity to run the trial (T 57.278-33).
In the event that the plaintiff is granted the leave, Drs Fraser and Stening need to seek further expert opinion from, at a minimum, Drs Dan and Walker. Given the new allegations as to the type of surgery that would have been performed as at February-April 2013 and its likely outcome, they reserve their position as to whether an additional expert's spinal surgical opinion would be sought to address the issue. Mr Seabury also submitted that he will need to qualify an expert spinal surgical opinion.
Bearing in mind that first an expert witness owes a duty to assist the Court and second, the overriding purpose of the Civil Procedure Act is to facilitate the just, quick and cheap resolution of the real issues in dispute, and that this Court must give effect to the overriding purpose, it is my view that the plaintiff should be permitted to serve the report Associate Professor Sekel dated 9 April 2019. I extend time for service of Associate Professor Sekel's report to 5.00 pm on 15 July 2019. It may be that the defendants need to obtain a spinal surgeon's report urgently before the conclave can answer the supplementary questions. The legal representatives of the parties are to confer and attempt to agree on when the supplementary conclave to answer the questions set out in paragraph [39] of this judgment should take place.
For clarity, the plaintiff is granted leave to the amend the FASC to include paragraphs [480]-[483] of the PFASC that adds the interbody care surgery. This is because it picks up what is contained in Associate Professor Sekel's report, for which the plaintiff has been given leave to serve.

[10]

Amendments to the PFASC

Section 64(1) of the Civil Procedure Act is the source of the Court's power to allow amendments to pleadings. Section 64 reads: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. …"
The power under s 64 must be exercised subject to s 58 of the Civil Procedure Act. It reads: "58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and … (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
Subsection 58(2)(a) of the Civil Procedure Act provides that the Court must consider the matters in ss 56 and 57 in order to determine what are the dictates of justice in a particular case. The matters enumerated in ss 58(2)(b)(i)-(vii) may be taken into account by the Court in determining what are the dictates of justice. It is not necessary to reproduce ss 56 and 57 of the Civil Procedure Act here.
The plaintiff referred to Queensland v J L Holdings Pty Ltd (1997) 186 CLR 146, where the High Court was asked to consider whether the Court's refusal to amend pleadings was an erroneous exercise of the Court discretion. The plurality stated that justice is the paramount consideration in determining an application to amend pleadings, and that case management considerations, while relevant, should not prevail over the injustice of shutting a party out from raising an arguable issue that would impede the determination of the real issues between the parties. The plurality noted that justice was the paramount consideration in determining an amendment application and held that no principle of case management could be allowed to supplant that aim.

[11]

Aon

The defendants referred to Aon Risk Services Australia Limited v Australia National University (2009) 239 CLR 175. In Aon, the High Court dealt with the Rules of the Supreme Court of the ACT. However, these observations of the Court are not limited to the conduct of litigation in the ACT. Rule 21 of the Court Procedure Rules 2006 (ACT) is in similar terms to s 56 of the Civil Procedure Act.
In Aon, Gummow, Hayne, Crennan Kiefel and Bell JJ addressed the position of Queensland v J L Holdings Pty Ltd. Their honours stated at [97], [102], [103] and [111]: "[97] The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory. … [102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. While r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. [103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case." [111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases.http://www.lexisnexis.com/au/legal/ - 176. On the contrary, the statements are not consonant with this court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future."
So far as amendments to pleadings are concerned, the plaintiff referred to Dare v Pulham [1992] HCA 70, where the High Court described the purpose of pleadings as: "Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it … they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into … the relief which may be granted to a party must be founded on the pleadings…"
The fundamental purpose of pleadings is to particularise the claim (and defence) to enable the opposite party to precisely identify the case they are required to meet and, where possible, to be pleaded with precision. This statement is uncontentious. The defendants have never complained that they do not know the case they have to meet.
The plaintiff also referred to In the matter of Imperium Projects [2017] NSWSC 141, in which Black J, with respect to the Court's discretionary powers, stated that when exercising that discretion, the Court should consider: 1. whether the amendment(s) are made in good faith, in a timely manner and for a proper purpose; 2. whether the amendment(s) would cause undue prejudice to the other party; 3. the nature of the amendment(s) and its importance to the amending party; and 4. whether allowing the amendment(s) would be consistent with the dictates of justice.
In Imperium Projects, Black J observed there was a balance between the plaintiff being provided with a proper opportunity to plead its case, and issues of delay and prejudice, if any, to the affected parties.
It should be observed that the proposed amendments expand the pleading from [111]-[491]. The heading involves complex issues and is four weeks away.

[15]

(iii) The third defendant - Mr Seabury - the physiotherapist

A significant number of the proposed amendments relate to the 14 consultations the plaintiff had with Mr Seabury between 10 January 2013 and 28 May 2013, and the plaintiff's assessment, management and treatment provided by Mr Seabury.
Those 14 consultations amount to 285 paragraphs commencing from [139]-[431], save for paragraphs [227]-[238] which related to Dr Stening and for paragraphs [398]-[401], [417], [425]-[426], which relate to the treatment provided by Dr Samels.
Those 285 paragraphs provide details, derived from Mr Seabury's clinical records, of the plaintiff's signs and symptoms at each consultation and Mr Seabury's assessment thereof and prescribed treatment.
Within those paragraphs, especially from paragraph [191] onwards, they record the Plaintiff's changing symptomology and document Mr Seabury's awareness of those symptoms and his response.
Those proposed amendments raised against Mr Seabury have elaborated on previous pleadings and are, in the main, uncontroversial.
Paragraphs [467], [469] and [471] relate to Mr Seabury's alleged scope of his duty of care and allegations of negligence. Those paragraphs have been expanded to clearly particularise the allegations levelled against Mr Seabury, especially as the reported symptoms have progressed, and ought to have put him on notice that the treatment may not be appropriate and that the underlying condition may not have been what he had previously been told by Dr Stening.
The amendments to paragraphs [467] (duty of care) and [469] (foreseeability of harm) both clarify and raise some minor additional, uncontroversial, issues. They go no further than to assert that Mr Seabury should have ceased treatment, referred the plaintiff back to Dr Stening and/or advised the plaintiff to avoid certain activities. These issues already exist in the original statement of claim and on the cross claims between the defendants.
Those issues were considered and discussed by the experts in their respective reports and commented on the several joint expert conclave reports. There should be no surprises and certainly no prejudice.
The amendments to paragraph [471] (particulars of negligence) are a combination of the issues raised in the report of Mr Ralston, physiotherapist, served in the cross claim by the first and second cross claimants, which arise from the various joint expert conclave report and/or expand on existing allegations. There should not be any surprises and certainly no prejudice to the first, second, or third defendants.

[16]

PFASC - Causation

Paragraph [104] of the amended statement of claim ("ASC"), now [484] of the PFASC, states: "But for the negligence of the first defendant, and/or the second defendant and/or the third defendant the plaintiff would have received timely medical and surgical treatment for her progressive spondylolisthesis and avoided her spinal cord injuries and it sequelae."
The plaintiff asserts that her injuries and disabilities were caused by the negligence of the defendants. Had the plaintiff been properly investigated, diagnosed, warned and educated as to activities to avoid that may trigger the spondylolisthesis, and/or referred for surgical intervention, in a timely manner, then she would have avoided her spinal cord injuries and its sequelae.
The amendments to causation found at paragraphs [472]-[479] of the PFASC arise from various served medico-legal reports and from joint expert conclave reports.
Paragraphs [472] and [473] of the PFASC relate to the failure to warn the plaintiff of her spondylolisthesis and to avoid activities that may cause instability or trigger a slip between the spinal bones that could cause spinal cord compression. The plaintiff was not warned and lost the opportunity to prevent the progression of her spondylolisthesis.
Paragraphs [474]-[477] of the PFASC relate to the failure of the defendants to warn the plaintiff to avoid any activity and/or treatment that could trigger, exacerbate and/or progress her spondylolisthesis. Those amendments are not controversial, unsurprising or prejudicial to the defendants.
Paragraphs [478] and [479] of the PFASC plead that had the defendants provided such advice and/or warnings in the plaintiff would have adjusted her lifestyle and thereby avoided the progression of her spondylolisthesis. Conservative management was available to the plaintiff and had been raised in served reports and in the joint expert (causation) conclave report.
The proposed amendments to the PFASC are unlikely, due to the dissemination of medical reports, joint expert reports and clinical records, to cause any surprise or prejudice the defendants if leave was granted.
The exercise of that discretion is not prescriptive but rather involves reflection of the circumstances underpinning that request. Moreover, the focus of that discretion should ensure, where possible, that a party is not denied the right to properly put their case.
Save for the joint expert conclaves on damages and psychiatric issues and the reconvening of the joint expert (causation) conclave on a discrete issue, it is expected that once this Court has determined whether leave will be granted, the remaining joint expert conclaves will be finalised and joint expert reports subsequently produced.
Further, the parties are to serve evidentiary statements which, from the plaintiff's perspective, are well advanced and will be finalised and served in accordance with court orders.

[17]

Interbody cage

It is clear from paragraph [104] of the ASC (now [484] of the PFASC) that that the delay in referring and treating the plaintiff spondylolisthesis, or the failure to appropriately educate her, caused or materially contributed to her injuries and disabilities. The plaintiff submitted that this paragraph is arguably broad enough to encompass the scenario that had an interbody vertebral cage(s) been inserted, in the absence of cauda equina symptoms, then the plaintiff would have avoided her spinal cord injuries and its sequelae. The plaintiff submitted that while the interbody vertebral cage(s) procedure was not specifically pleaded, it is, nonetheless, caught up in the generality of paragraph [484] of the PFASC.
The defendants have asserted that the surgical option of the insertion of the interbody vertebral cage(s) and its effect were neither pleaded and/or particularised. The plaintiff has endeavoured to disavow the defendants of their stance.
Nonetheless, for abundant clarity, and to appease the concerns of the defendants, the plaintiff has proposed amendments to her causation pleadings with the inclusion of paragraphs [480]-[483].
Paragraphs [480]-[483] plead as follows: "[480] But for the negligence of the first defendant and/or second defendant and/or third defendant in failing to investigate, diagnose and treat the plaintiff's spondylolisthesis, on or before the onset of cauda equina symptoms, the plaintiff was prevented from undergoing an interbody vertebral cage fusion with a posterior pedicle screw fusion; [481] But for the negligence of the first defendant and/or second defendant and/or third defendant the plaintiff would have undergone an interbody vertebral cage fusion with posterior pedical screw fusion, before the onset of cauda equina symptoms, which would [have] restored the plaintiff's lumbar L5/S1 disc space anatomy to normal parameters and prevented spinal root canal compression; [482] But for the negligence of the first defendant and/or second defendant and/or third defendant had the plaintiff undergone an interbody vertebral cage fusion with posterior pedicle screw fusion, before the onset of cauda equina symptoms, the plaintiff's lumbar L5/S1 level would have returned to a 'Grade 0' slip situation; [483] But for the negligence of the first defendant and/or second defendant and/or third defendant the plaintiff would have undergone an interbody vertebral cage fusion with posterior pedicle screw fusion, prior to on [sic] onset of cauda equina symptoms, and she would have avoided her spinal cord injuries and its sequelae."
Those paragraphs plead that but for the defendants' negligence, the plaintiff would have had interbody vertebral cage(s) inserted which would have returned her spinal anatomy to within normal parameters and thus avoided her subsequent spinal cord compression and its sequelae.
The proposed causation amendments to the PFASC arise from the report of Associate Professor Sekel, dated 9 April 2019, and the literature cited by him.
The proposed causation amendment to the PFASC relating to the insertion of interbody vertebral cage(s) plead, from a causation perspective, what would, more likely than not, have occurred but for the defendants' negligence.
The plaintiff accepts that this is a complex case and that the complexity requires careful articulation of the facts, matters and circumstances to enable the Court and the other parties to identify the issues that will need to be addressed during the hearing. To fail to do so would be undesirable. The complexity has been clarified by the conclave process and reports, and the cross claims.

[18]