Irfan v Western Sydney Local Health District

1. [1]

   HIS HONOUR: By notices of motion filed on 13 April 2023 and 22 June 2023, the plaintiffs seek the following orders or relief:

   1. (1)

      Leave to file an amended statement of claim.

   2. (2)

      Leave to join the Health Administration Corporation (Ambulance Service of NSW) as a second defendant.

   3. (3)

      Leave to rely upon the report of Mr Tony Hucker dated 21 June 2023.

   4. (4)

      Leave to rely upon the report of Professor Bernard Yan dated 22 March 2023.

   5. (5)

      Leave to rely upon the reports of Dr Ron Brooder dated 2 March 2023 and 31 March 2023.

2. [2]

   These applications arise in the following circumstances.

Background

1. [3]

   On 17 May 2020, Mr Irfan presented to the Pacific Medical Centre at Blacktown with a ten day history of shoulder and neck pain. Whilst waiting to be seen by his general practitioner, he deteriorated significantly and called for assistance. He was examined at 12.33 hours, following an ECG 30 minutes beforehand, and was immediately referred to the Emergency Department of the Blacktown Hospital with a possible “CVA”. An ambulance collected Mr Irfan from the surgery at 12.45 hours and he arrived at the hospital at 13.18 hours. His condition deteriorated further on the way. At 13.57 hours, he was transferred to a bed and a code blue was activated.

2. [4]

   Shortly thereafter, Mr Irfan was noted to have what appeared to be a seizure. He underwent a CT scan with spiral angiography at 16.10 hours. The plaintiffs allege that at no point following Mr Irfan’s presentation to the hospital was its Stroke Unit, Stroke Team or a neurologist notified or consulted about his condition or symptoms. He was reviewed by Dr Martin, a junior medical officer (neurologist) at 17.03 hours, who concluded that it was likely Mr Irfan had had a “bilateral vertebral dissection with basilar clot”. At about 17.12 hours, Dr Martin spoke to Dr Jason Wenderoth, a neurointerventional neurologist. A time critical transfer to Liverpool Hospital was ordered. Mr Irfan arrived by ambulance at Liverpool Hospital at about 19.00 hours and was immediately admitted to the neurology unit. He underwent an endovascular clot retrieval procedure at about 20.55 hours. He remained in the Liverpool ICU for the duration of his admission before being returned to Blacktown Hospital on 22 May 2020 for ongoing ICU management. He remained there until 15 June 2020.

3. [5]

   These proceedings were commenced by statement of claim filed on 26 November 2021. The plaintiffs allege that Mr Irfan has suffered injuries and disabilities as the result of his treatment at Blacktown Hospital in several respects. These include a failure to diagnose the fact that he was, or may have been, suffering from a stroke, and failure to treat him appropriately in accordance with such a diagnosis in a proper or timely manner, including the administration of an urgent CT head scan and CT angiogram. He similarly also alleges a failure to administer thrombolysis and a failure to carry out timely clot retrieval, among other things.

4. [6]

   The proceedings came before the Registrar on 4 November 2022. The matter was then set down for hearing commencing on 6 November 2023 with an estimate of three weeks. It is uncontroversial that the allocation of a hearing date was made over the plaintiffs’ opposition, whose representative informed the Registrar that it was premature from their perspective to set the matter down for trial. That submission was made in the context that the plaintiffs’ legal representatives considered that the full extent of the factual background had not by then clearly emerged, that interrogatories were foreshadowed as a means of discovering more about Mr Irfan’s treatment and that there was a prospect that further evidence might need to be served when the full picture was known.

5. [7]

   Despite attempts to glean more information, including the service of a notice to produce issued to the defendant on 17 December 2022 and a letter sent the following day seeking a response from the defendant’s legal representatives concerning the possibility of interrogatories being administered, no progress was made. Mr Bagrin, the plaintiffs’ solicitor, described his position at that time in his affidavit affirmed on 23 June 2023, in these terms:

6. [8]

   Thereafter, on 12 January 2023, Mr Bagrin sent a letter of instruction to Dr Ron Brooder, a neurologist and on 23 January 2023 sent a letter of instruction to Professor Bernard Yan, a neurointerventionist. Reports from these specialists were later received and are referred to later in these reasons.

7. [9]

   However, before that occurred, Mr Bagrin continued to chase up a response from the defendant’s solicitors about what he referred to as the outstanding documents sought by the notice to produce served the previous December. On 13 February 2023, Mr Bagrin filed a notice of motion seeking an order for the administration of interrogatories and production of the documents sought in the notice to produce. Before those issues were resolved, Mr Bagrin sent a letter of instructions to Mr Tony Hucker, a paramedic, in anticipation of a possible joinder of the Ambulance Service as a second defendant.

8. [10]

   The report of Professor Yan dated 22 March 2023 was served on the defendant by letter dated 28 March 2023. The reports of Dr Brooder dated 2 March 2023 and 31 March 2023 were served on the defendant by letter dated 3 April 2023. The plaintiffs filed the notice of motion on 13 April 2023 that included prayers for leave to rely upon these reports.

9. [11]

   Thereafter, in circumstances that I consider should be favourably noted as evidence of commendable professional cooperation between experienced medical negligence litigation lawyers, the parties reached an informal arrangement to exchange evidentiary statements with a view to possibly obviating the need for formal resolution of the issue concerning the administration of interrogatories. On 16 May 2023, the defendant’s solicitor wrote to Mr Bagrin maintaining that the defendant would serve its evidentiary statement by the end of July 2023. Mr Bagrin served the plaintiffs’ evidentiary statements by letter dated 17 May 2023.

10. [12]

    On the same day, Mr Bagrin wrote to the defendant’s solicitor serving a fresh notice to produce. The terms of that letter are as follows:

11. [13]

    The documents sought by the notice were described in these terms:

12. [14]

    The defendant produced the documents in response to that notice under cover of a letter dated 14 June 2023. I do not understand that there is any remaining issue about the adequacy of the defendant’s response to that notice. The following day, Mr Bagrin wrote to the defendant’s solicitor in these terms:

13. [15]

    The defendant’s solicitor responded by letter dated 21 June 2023 as follows:

14. [16]

    In the events that occurred, the proceedings came before me for directions on 29 June 2023, when the following orders were made by consent:

15. [17]

    These remaining matters then came before me on 17 July 2023, when the following things emerged. First, it was uncontroversially accepted that the currently scheduled hearing dates could not be retained if the plaintiffs’ proposal to join the Ambulance Service were accepted. Not unreasonably, the Ambulance Service appeared and raised objection to any suggestion that it should be expected to be prepared to go to trial on such short notice. It almost goes without saying in any event that the joinder of a new defendant in complicated medical negligence proceedings a matter of only four months before a three week hearing could rarely occur over the objection of that defendant. Correspondingly, a vacation of the hearing would clear the way for the joinder of the Ambulance Service on appropriate terms.

16. [18]

    Secondly, the defendant’s objections to the proposed amendments to the statement of claim were ultimately not pressed. That approach appeared to me to evince a reasonable and enlightened response to the amendment proposal when regard is had to the terms of the proposed amendments in the context of the pleadings so far. It also accorded with a recognition of the importance of the need to remain cognisant of the overriding purpose in s 56 of the Civil Procedure Act 2005 and the dictates of justice referred to in s 58 of that Act. I hasten to observe, however, that the defendant’s concession in relation to the proposed amendments to the pleadings was expressly qualified by a submission that it should in no way be taken as including a related concession that the plaintiffs’ proposal to rely on the reports of Dr Brooder or Professor Yan should be accepted.

17. [19]

    Thirdly, it became uncontroversial that the plaintiffs’ proposal to serve and to rely upon the report of Mr Hucker should be permitted if the Ambulance Service were to become the second defendant. The current defendant is hardly a contradictor of that course, having regard to the terms of the report and the target of the opinion. The Ambulance Service, if joined, would also have no grounds upon which to oppose the service of that report for obvious reasons.

18. [20]

    That left the final and most controversial issue subsisting in the plaintiffs’ proposal to rely upon the reports of Dr Brooder and Professor Yan. The defendant maintained that the plaintiffs are required to demonstrate exceptional circumstances before they could rely on these reports, by reason of UCPR 31.28, which provides as follows:

19. [21]

    The parties provided detailed and helpful written submissions about this.

Plaintiffs’ submissions

1. [22]

   The plaintiffs maintained that the key issue is whether, in dealing with the application for leave, the Court could retrospectively grant an extension of time under UCPR 1.12 to serve the reports (thereby rectifying their service in default of previous orders), or whether leave is now required under UCPR 31.28(4) to “admit” those reports. For leave to be granted under UCPR 31.28(4), the requesting party must show that “exceptional circumstances” apply, whereas this requirement does not arise for the granting of an extension of time under UCPR 1.12.

2. [23]

   In Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433, Cavanagh J concluded that UCPR 31.28 is not applicable in circumstances similar to the present (albeit in that case where no hearing date had been fixed). His Honour held that on proper construction, UCPR 31.28 goes to the admissibility of expert evidence, which is ultimately a matter for the trial judge. His Honour observed at [23]-[29]:

3. [24]

   Cavanagh J’s construction of UCPR 31.28 was adopted by Lonergan J in Dickson v State of NSW [2021] NSWSC 234 at [29]-[31]. Her Honour agreed with the acknowledgment by defendant’s counsel that the Court has discretion to extend time for compliance with the rules under UCPR 1.12, and her Honour went on to state:

4. [25]

   Unlike Dickson, a trial date has been set in the present matter. However the other “special circumstances” identified by Lonergan J are applicable to the plaintiffs’ claim. There is clear complexity in relation to the breach and causation aspects of the plaintiffs’ case, and the reports for which the plaintiffs are seeking an extension of time for service are directly relevant and will be of significant assistance to the Court when considering the issues in dispute.

5. [26]

   In Hannam v State of New South Wales (No 3) [2022] NSWSC 498 at [7]-[15], Adamson J found it unnecessary to consider UCPR 31.28, or the matters to which Cavanagh J referred in Addison at [29]. Rather, her Honour was not persuaded it was in the interest of justice to allow the defendant to rely on the expert toxicologist report it was seeking to serve, having regard to matters that she was bound to take into account under Part 6 of the Civil Procedure Act 2005. Her Honour observed:

6. [27]

   In contrast to Hannam, the trial date in this matter is still more than four months away with an estimate of three weeks. The defendant has already engaged experts who can consider the expert reports the plaintiff is seeking to serve, and has the resources to engage other experts if deemed necessary. The reasons for the plaintiffs needing to obtain further expert evidence have only become apparent recently due to the limited information available about the critical events. In the circumstances therefore it is difficult to see what prejudice would be caused to the defendant by granting leave for the plaintiffs to rely on the expert reports of Professor Yan and Dr Brooder.

Defendant’s submissions

1. [28]

   The defendant took issue with this analysis. Apart from the contention that the plaintiffs had not established the existence of exceptional circumstances, for the proof of which they bear the onus, the defendant emphasised the following matters.

2. [29]

   First, the proceedings are at a very advanced stage with a hearing date only four months away. The plaintiffs were ordered by me to serve their lay and expert evidence in chief by 29 April 2022 and any evidence in reply to the defendant’s evidence, as to both liability and damages, by 14 October 2022. Evidence in reply was served by the plaintiffs on 13 September 2022 and 7 October 2022. The parties then participated in a mediation on 14 October 2022. It was only after the mediation that the plaintiffs sought to serve additional expert evidence. The plaintiffs’ opposition before the Registrar on 4 November 2022 to the allocation of a hearing date was based solely on the fact that they intended to administer interrogatories to “progress the matter further” and that in the absence of interrogatories there was a risk they would proceed to trial on incomplete or misunderstood information. It was submitted that answers to interrogatories would be deployed to clarify factual matters. It was also foreshadowed that if new material facts became apparent then the plaintiffs would need to serve further evidence.

3. [30]

   In the events that occurred, to which I have earlier referred, interrogatories were not administered. The plaintiffs provide no explanation for the delay in procuring or serving the new reports. The defendant submitted that the absence of an explanation ought to be fatal to the plaintiffs’ application. Moreover, it is plain that the plaintiffs’ solicitor did not request the new reports until more than five weeks after the matter was set down for trial. No light is shed by Mr Bagrin in his affidavit upon what prompted the plaintiffs to seek additional expert evidence. The defendant maintained in the circumstances that there is nothing about the explanation for the delay in serving the additional expert evidence that establishes “exceptional circumstances” within the meaning of UCPR 31.28.

4. [31]

   Moreover, the defendant draws attention to Practice Note SC CL7. Paragraphs 31 to 34 provide as follows:

5. [32]

   In the present case, the plaintiffs have already served two reports from Associate Professor Raftos, an emergency physician, and two reports from Professor Brew, a neurologist. Both experts address breach of duty and causation. As to the authors of the new reports, Dr Brooder is, like Professor Brew, a neurologist. The defendant is concerned that it remains unclear, and Mr Bagrin offers no explanation, why a report from a second neurologist should be allowed, still less why it is required. Professor Yan is described on his website as “dual-trained as Neurologist and Endovascular Neurointerventionist (a subspecialty which treats acute stroke, aneurisms and arterio-venous malformation)”.

6. [33]

   The defendant further submitted that, although Professor Brew does not similarly describe himself as an “endovascular neurointerventionist”, resort to Professor Yan to address the relative merits or otherwise of endovascular clot retrieval versus thrombolysis cannot, in the defendant’s submission, be justified upon the basis that Professor Brew lacks relevant expertise. His qualifications and experience, described in his reports, are extraordinarily impressive. Indeed, as the defendants point out, no perceived lack of expertise on clot retrieval appears in any way to have prevented Professor Brew from addressing the very issue in his reports produced thus far. He did not there defer to “interventionists” on the topic or otherwise abstain from comment upon the basis that he lacked relevant expertise.

7. [34]

   Finally, the defendant expressed concern that if the plaintiffs were permitted to rely upon the proposed additional reports, the defendant’s sole medicolegal expert neurologist Dr Krause will be required to meet in joint conference with three experts called by the plaintiffs. The defendant submitted that that would work an obvious unfairness in circumstances where it is likely that the resulting joint report would portray Dr Krause as holding a minority opinion.

Discernment

1. [35]

   Before proceeding further, it is timely to recall one of the principal bases upon which Mr Higgs of senior counsel for the plaintiffs advanced his oral submissions before me. So far, none of the relevant neurological specialists in this case has expressed a view or offered any specific commentary on one of the documents only produced on 14 June 2023 by the defendant in answer to the notice to produce served on 17 May 2023. That document is entitled “Evaluation and Management of patients presenting to Blacktown or Mount Druitt Hospital with Sudden Onset of Neurological Symptoms”. The document describes its Purpose in the following terms:

2. [36]

   The document proceeds in considerable detail to set out what may be described as a best practice regime or protocol to be followed at these hospitals. It may in due course be relevant to know whether or not, or to what extent, the terms of this document conform to practice more generally applied in New South Wales hospitals or are conversely unique to the hospitals concerned. The expert evidence is currently silent on that question.

3. [37]

   It is not convenient to include the whole of the document in these reasons. However, part of what it contains says this:

4. [38]

   The burden of Mr Higgs’ submissions is that Dr Brooder and Professor Yan ought to be given the opportunity to express opinions on this document having regard to their qualifications and experience. However, I am presently unable to understand why Professor Brew is not appropriately qualified to do so. It may be, although I currently doubt, that he ultimately confesses some inability to comment on this document, and that he wishes to defer to someone with the allegedly differing qualifications of someone like Professor Yan. That situation has not yet arisen, if it ever will. In the event that it did, no doubt an application to have someone other than Professor Brew comment upon the protocol document could be made.

5. [39]

   In my opinion, the plaintiffs’ application is not really one to which UCPR 31.28 relates. It is in truth what appears to be an application to rely upon more than one expert in the same field of specialty. Neither a consideration of the expertise of Professor Brew nor the evidence of Mr Bagrin satisfies me that there is any current need to permit the plaintiffs to do so.

6. [40]

   I should however offer the following comments having regard to the arguments raised in this case. The rules, including UCPR 31.28, should be our servants, not our masters. They are designed to promote fairness, or more particularly so as to avoid unfairness, to all parties in the conduct of litigation. It is significant that updating reports are not covered by the requirement for leave to which the rule refers. It seems to me that a slavish reliance upon the rule ought not be permitted to hijack the debate if all parties are adequately protected from the consequences of reports that the rule indicates otherwise require leave. For example, in the particular circumstances of this case, it will be necessary to vacate the hearing date in order to join the Ambulance Service. Although the orders that I propose render the issue of no further importance, the defendant’s need for the protection that the rule provides, only four months from a hearing, has to that extent, and in any event, correspondingly evaporated. Accordingly, the need to consider the questions of a grant of leave or the exceptional circumstances requirement, also recede. In so saying, I am not suggesting that the defendant was not entirely within its rights to be concerned about the plaintiffs’ proposal to rely upon additional experts so close to the hearing.

7. [41]

   In my view, having regard to all of these considerations, the following orders should be made:

   1. (1)

      Vacate the hearing of the proceedings scheduled to commence on 6 November 2023.

   2. (2)

      Grant leave to the plaintiffs to file and serve an amended statement of claim in the form of the draft annexed to the affidavit of Yevgeny Bagrin affirmed 23 June 2023 and marked “GG”.

   3. (3)

      Order that the plaintiff serve the amended statement of claim upon each of the defendants within 14 days.

   4. (4)

      Direct the second defendant to file its defence thereafter in accordance with the rules.

   5. (5)

      Dismiss the plaintiffs’ application for leave to rely upon the reports of Dr Ron Brooder dated 2 March 2023 and 31 March 2023 and Professor Bernard Yan dated 22 March 2023.

   6. (6)

      Save to the extent that the parties have otherwise provided for costs by agreement made between or among them, order that the costs of the applications before me be the plaintiffs’ costs in the proceedings.

   7. (7)

      Grant liberty to the parties to apply to me by arrangement with my Associate.

   8. (8)

      List the proceedings before me for directions, if required, on Friday 3 November 2023 at 9.30am.