MacQuarrie v Hunter New England Local Health District

1. [1]

   HIS HONOUR: By notice of motion filed 14 November 2018, Ms Heidi MacQuarrie (“the plaintiff”) sought the following orders:

   1. (1)

      the plaintiff have leave to serve Notice to Answer Interrogatories to the first defendant in the form of those annexed to the affidavit of Ms Boshev sworn 14 November 2018;

   2. (2)

      the plaintiff have leave to serve Notice to Answer Interrogatories to the second defendant in the form of those annexed to the affidavit of Ms Boshev sworn 14 November 2018;

   3. (3)

      the plaintiff have leave to serve Notice to Answer Interrogatories to the third defendant in the form of those annexed to the affidavit of Ms Boshev sworn 14 November 2018;

   4. (4)

      the plaintiff be granted leave to file and serve a Further Amended Statement of Claim;

   5. (5)

      the defendants pay the plaintiff’s costs of this application; and

   6. (6)

      any other Order the Court sees fit.

2. [2]

   In relation to the argument regarding interrogatories, on 17 October 2019, the following exchange occurred between senior counsel for the plaintiff, Mr Jeremy Morris SC, and the Court:

3. [3]

   The defendants opposed prayers 1, 2 and 3 of the motion being stood over. Eventually, after submissions, during the course of the hearing the Court dismissed prayers 1, 2 and 3. This judgment concerns prayer 4 of the motion (which shall hereinafter be referred to as “the application”).

4. [4]

   Hunter New England Local Health District (“the first defendant”), Dr Burton (“the second defendant”) and Associate Professor Ell (“the third defendant”) (collectively, “the defendants”) oppose the application for leave to file the proposed further amended statement of claim (“PFASOC”).

PROCEDURAL HISTORY

1. [5]

   The plaintiff commenced proceedings in the District Court claiming damages for medical negligence. She alleged that she suffered intracranial hypotension (“ICH”) caused by a cerebrospinal fluid leak (“CSF leak”), which the defendants’ negligently failed to suspect or diagnose and thereby caused her irreparable harm (namely, brain damage).

2. [6]

   During the first trial, the District Court heard argument over the admissibility of the liability evidence of Professor Brew, the tender of medical records, the rejection of the tender of the plaintiff’s treating and medico legal records and application for adjournment by the plaintiff to rectify the evidence.

3. [7]

   On 17 August 2017, the plaintiff’s application for adjournment to rectify evidence was dismissed. The court refused to admit the medical reports of Professor Brew and the plaintiff’s application for leave to adduce further evidence from Professor Brew was refused.

4. [8]

   The plaintiff’s claim was subsequently dismissed.

5. [9]

   The plaintiff filed an appeal. The appeal was heard by the Court of Appeal in Newcastle in June 2018.

6. [10]

   Prior to completion of the hearing of the appeal, the matter settled. Orders were made by consent, which set aside the orders made in the District Court and remitted the matter to the Common Law Division of this Court for rehearing.

7. [11]

   On 4 April 2019, the matter was listed for hearing in this Court.

8. [12]

   On 7 May 2019, the Court of Appeal considered the matter with respect to the scope of the remitted proceedings: MacQuarrie v Hunter New England Local Health District [2019] NSWCA 98 (per Basten, Ward and Payne JJA) (“the Court of Appeal Judgment”). The matter was returned to this Court on 17 October 2019.

THE PROPOSED AMENDMENTS

1. [13]

   The variations made by the PFASOC concern, what the plaintiff considers, appropriate procedures that the defendants should have followed to prevent the risk of harm.

2. [14]

   The primary issue in dispute in the substantive proceedings, as alleged by the plaintiff, is that the true cause of her condition remained undiagnosed for a period of time due to the defendants’ respective failures to take an adequate clinical history. Had the defendants taken her proper history in consideration the plaintiff would have been accurately diagnosed (and treated) at an earlier time. Thus, she alleged irreparable harm would have been avoided.

3. [15]

   Mr Morris SC submitted that, in substance, the PFASOC alters the current pleadings as follows:

4. [16]

   For completeness, the PFASOC can be relevantly summarised as follows:

   1. (1)

      The incorporation of paras 3-6 concern the plaintiff’s prior medical history, including three separate neck injuries, which occurred in 1973, 1982 and 1999, and her suffering from migraines or cluster headaches up to and including October or November 2007.

   2. (2)

      From that time, the headache symptoms changed, the plaintiff noticing that they were characterised by pain behind her right eye with a sense of swelling. The incorporation of paras 7-9 detail these changes.

   3. (3)

      The incorporation of para 13 alleges symptoms of spontaneous intracranial hypotension caused by CSF leak.

   4. (4)

      The incorporation of paras 14-23 provides examples of medical literature, available in 2009, regarding spontaneous ICH due to CSF.

   5. (5)

      The incorporation of paras 24-25 detail the plaintiff’s worsening of headache symptoms from about February 2009.

   6. (6)

      The incorporation of paras 26-43 detail that the plaintiff, on 23 May 2009, presented to the first defendant’s emergency department and was then assessed by Dr Singla and subsequently discharged later that same day.

5. [17]

   Further, the plaintiff submitted that her presentation to the first defendant’s emergency department on 23 May 2009 and her following medical consultations (which the plaintiff proposes to substantially amend) suffered from the same problem, namely, that a proper diagnostic process was not undertaken.

6. [18]

   Whilst the plaintiff was “essentially” seen by doctors and treated symptomatically, no clear diagnosis was reached because her clinical history was not adequately elucidated and applied against the known scientific knowledge.

Plaintiff’s Submissions

1. [19]

   The plaintiff accepted that the PFASOC was a complete redraft.

2. [20]

   The plaintiff submitted that leave to file the PFASOC is needed in order to achieve the following:

   1. (1)

      articulate her claim, to take into account the complexity of the facts matters and circumstances over the three year period;

   2. (2)

      to identify how each fact matter and circumstance relates to the scope and content of the duty of care and breach with respect to each defendant;

   3. (3)

      to bring the pleadings into line with the oral and expert evidence adduced at the first trial;

   4. (4)

      to enable the plaintiff's allegations of material facts to be traversed, it being inappropriate to relegate material facts to particulars; and

   5. (5)

      to incorporate the terminology such as identification of the relevant risk, involved in the relevant provisions of the Civil Liability Act 2002 (NSW).

3. [21]

   Once the parties are apprised of the factual matters that are actually in dispute, the scope and content of the duty, the question of breach and causation can be more clearly identified, and this will assist with the more efficient disposition of the proceedings. Thus, the plaintiff submitted that, PFASOC furthers the overriding purpose and the statutory duty imposed by s 56(2) of the Civil Procedure Act 2005 (NSW).

4. [22]

   The PFASOC sets out full particularisation of symptoms and histories obtained as well as what symptoms would have been obtained on proper history taking.

5. [23]

   Further, scientific knowledge available to the defendants concerning the symptomatology of ICH, including factors which indicated that ICH should still be considered when typical findings were not always present such as normality of CSF pressure on measurement and normality of MRI images. Applicable literature going to that knowledge is relevant and has been particularised.

6. [24]

   The plaintiff submitted that there is no prejudice to the defendants through the sought amendments. It was contended, in that respect, that:

   1. (1)

      The evidentiary source of the detailed narration of symptoms and medical records has been widely available to the parties for years. It has provided the basis for all expert reports and joint conference reports. It was also used during lengthy cross-examination of the plaintiff.

   2. (2)

      The PFASOC will assist the defendants identify the issues which they hold in dispute and will help refine the issues that require determination by the Court.

7. [25]

   No dates for the rehearing have as yet been allocated, and as such, the defendant submitted that no delay is created. The PFASOC deals almost entirely with issues previously raised in the lay witness evidence, the treating records and the expert reports, but provide improved particularisation of the facts, matters and circumstances that are in contention between the parties.

8. [26]

   The PFASOC was served shortly after the Court of Appeal ordered a rehearing. Hence, the application was not made late.

9. [27]

   Allegations concerning the responsibilities of the referring neurologist and the neurologist receiving the referral were not originally pleaded. However, the plaintiff submitted that, by the time the report of Professor Brew was served on 8 March 2017, the need for appropriate communication between the specialists was in issue. Professor Brew opined that a referring doctor has a responsibility to adequately discuss a patient’s relevant medical information with the neurologist to whom the patient is referred. However, irrespective of receiving a referral, a patient’s comprehensive history must be taken afresh and independently. This issue was raised in both joint conferences of experts. In response to one of the defendants’ questions at the second conclave, Dr O'Neill opined, “mistakes are often made by not making a full history”.

10. [28]

    The plaintiff submitted that the PFASOC does not contain new issues. In any event, the matter is remitted for re-trial and is a de novo hearing. The plaintiff is consequently entitled to amend her case and obliged to amend her pleadings to bring them into line with the evidence following the consideration of issues raised on appeal and the evidence given at the first trial.

11. [29]

    Ultimately, the plaintiff submitted that the “overriding purpose” is served by the PFASOC being allowed at this early stage of preparation for the rehearing: s 56 of the Civil Procedure Act.

Defendants’ Submissions

1. [30]

   The defendants relied upon the provisions of ss 56-60 of the Civil Procedure Act and the principles outlined in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon”) against granting leave to file the PFASOC.

2. [31]

   The second and third defendants submitted that the PFASOC lacks clarity and precision and is inconsistent with the “overriding purpose”.

3. [32]

   The first defendant opposed the application to file the PFASOC on three grounds relating to content of the amendments, namely:

   1. (1)

      the PFASOC advances a new case against the first defendant without an explanation as to why that is necessary or desirable;

   2. (2)

      it does not meet the requirements of the Court’s rules as to pleadings; and

   3. (3)

      it inadequately defines the plaintiff’s case against the first defendant.

4. [33]

   The first defendant did not accept the plaintiff’s submission that no prejudice to the defendants would be occasioned if the Court were to allow the amendments. Rather, it was submitted that the PFASOC was “embarrassing” (i.e. “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70).

5. [34]

   The first defendant submitted that the PFASOC exceeds the bounds of the case pleaded in the amended statement of claim and exceeds the bounds of the case, as reframed, on Wednesday, 26 July 2017 (the third day of the first trial). Furthermore, it exceeds the bounds of the oral and expert evidence relied upon by the plaintiff at the first trial. That is, the plaintiff’s oral evidence at the first trial did not include the complete clinical history she now alleges the defendants ought to have taken.

6. [35]

   The first defendant submitted the proposed incorporation that alleges the plaintiff suffered postural headaches was the subject of contradictory evidence at the first hearing. The second and third defendant affirmed this inconsistency.

7. [36]

   The first defendant submitted that the plaintiff’s reframed case, relied upon at the first trial, articulated a case in negligence as against the first defendant that was refined to a period from 15 June 2009 until the expiry of a period of “say three weeks” at which time surgical repair would have been affected by approximately 6 July 2009.

8. [37]

   The first defendant submitted that the PFASOC does not reflect the same case. Rather, the PFASOC incorporates the plaintiff’s admissions to the first defendant’s emergency department on 23 May 2009, 3 June 2009, 11 August 2009, 22 April 2010 and 14 September 2010. However, none of those events were relied upon as material to the reframed case at the first trial.

9. [38]

   The second and third defendant similarly submitted that the PFASOC contained a suite of new issues that were not propounded at the first trial and not traversed in any of the expert reports.

10. [39]

    The first defendant submitted that pleadings and particulars must be very carefully framed so that each party may know (in detail) the case they are being called upon to meet: Banque Commercial SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 (see also Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218).

11. [40]

    The first defendant submitted that the PFASOC does not meet the staged approach required by ss 5B, 5C and 5D of the Civil Liability Act. That is, the plaintiff has not identified the risk of harm asserted against the first defendant such as for her emergency department presentations on 23 May 2009 or 3 June 2009. Further, it is unclear whether the risk of harm is said to have changed at each consultation. I accept those submissions.

12. [41]

    The first defendant submitted that risk is central to the determination of civil liability: see Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 at [102] (per Leeming JA). The identification of risk is antecedent to the Court determining whether the elements foreseeability, probability and reasonableness of precautions are established before finding a breach of duty: s 5B(1) of the Civil Liability Act; see also: Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 at [442]-[444] (per Sackville AJA). Thus, the PFASOC inadequately articulates the case that the first defendant is being called on to meet and ought to be rejected.

13. [42]

    The first defendant submitted that the PFASOC does not meet the requirements of r 15.5 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 15.5 relevantly states:

14. [43]

    The first defendant submitted that the alleged acts of negligence relied upon in respect of the plaintiff’s emergency department presentation on 23 May 2009, for example, are not adequately particularised in the PFASOC. This same inadequacy can be observed with respect to other consultations incorporated by the PFASOC, in that it does not to state whether the same duty of care was owed to the plaintiff by a doctor working in the Emergency Department of the first defendant’s hospital and specialist neurologist (whom examined the plaintiff subsequently) of the first defendant. I accept this submission.

15. [44]

    The first defendant submitted the PFASOC does not identify a date or event at which point the plaintiff alleges an ICH caused by CSF leak ought to have been diagnosed. This fact is central to the first defendant understanding and answering the plaintiff’s case on causation. A negligent act or omission causing loss or injury constituting damage must be pleaded and proved (see: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [111] (per Kiefel J (as the Chief Justice of Australia then was)).

16. [45]

    I note the plaintiff submitted that the PFASOC makes it abundantly clear that the CSF leak existed as at the date of each consultation. I reject this submission. Neither a date alleging the existence of a CSF leak nor when it ought to have been diagnosed is explicitly stated in the PFASOC.

17. [46]

    Further, I note that the defendants contend that the plaintiff never suffered from ICH caused by CSF leak, this condition not having ever been found in the plaintiff.

18. [47]

    The first defendant submitted the PFASOC was also contrary to r 14.7 of the UCPR, which provides that “pleadings must contain only a summary of the material facts … and not the evidence by which those facts are to be proved”. Particulars of the PFASOC include medical journal articles; the first defendant submitted that particularising evidence is embarrassing and impermissible. Whether the knowledge contained within such articles is relevant to any of the doctors who saw the plaintiff is not a matter for pleading and particulars, but perhaps a matter for expert opinion. I find that it is indeed unclear as to whether an Emergency Department physician, at the time they examined the patient, should have been aware of the medical literature that is listed in the PFASOC. The first defendant should not be required to make such inferences, they ought to be clearly articulated. Furthermore, the first defendant should not be required to trawl through a body of medical literature in order to be in a position to traverse the allegations.

19. [48]

    The second and third defendants likewise submitted that the PFASOC failed to conform to the requirement of r 14.7 of the UCPR. It was further submitted the PFASOC was contrary to r 14.8 of the UCPR, which provides: “a pleading must be as brief as the nature of the case allows.”

20. [49]

    The second and third defendants further submitted that the amendment application was made at a very late stage in the proceedings and that the plaintiff had not proffered any satisfactory explanation for the delay.

21. [50]

    The second and third defendants submitted that plaintiff has not explained why the new allegations contained in the PFASOC are necessary within the meaning of Civil Procedure Act (see s 64(2)).

CONSIDERATION

1. [51]

   The order of remittal, made by the Court of Appeal in June 2018, was as follows: “Remit the matter to the Common Law Division of this Court for rehearing”.

2. [52]

   The Court of Appeal ordered that the costs of the first trial be the plaintiff’s costs in the cause on the remitted proceedings.

3. [53]

   The Court of Appeal observed as follows (at [12]):

4. [54]

   In the Court of Appeal Judgment, the Court made clear that the order did not carry an implied constraint on the conduct of the rehearing in the Common Law Division (at [13]).Further, the Court of Appeal stated (at [15]):

5. [55]

   At [19] of the Court of Appeal Judgment, the Court held:

6. [56]

   The plaintiff submitted that the effect of the Court of Appeal Judgment was that the matter now falls to be determined within the usual parameters of case management in this Court. Resultantly, the plaintiff is at liberty to make an application to amend her pleadings.

7. [57]

   The first defendant did not directly submit as to whether the effect of the Court of Appeal Judgment was that the plaintiff had an entitlement to amend. Rather, and more fundamentally, the first defendant submitted the Court ought to consider whether the PFASOC should be permitted pursuant to statutory provisions governing case management and the rules as to pleading. Upon the Court of Appeal Judgment that submission must be accepted. The consideration of the application to amend should be assessed in that light upon the particular terms of the PFASOC.

8. [58]

   Further, the first defendant submitted that the PFASOC was not a proper pleading, i.e. it does not conform to the rules of pleadings. Therefore, the Court cannot consider the ambit of the PFASOC and determine whether a grant of leave is wholly or partially appropriate.

9. [59]

   I propose to commence consideration of the application to amend, in that latter respect, by first turning to the submissions of the first defendant with respect to the medical literature which the PFASOC sought to incorporate. Mr Hutchings submitted:

10. [60]

    I accept the thrust of those submissions and find that the medical literature is contrary to the rules as to the form of pleadings: rr 14.7 and 14.8 of the UCPR.

11. [61]

    More broadly, the question before the Court is whether the PFASOC should be allowed under s 64 of the Civil Procedure Act. That section relevantly provides:

12. [62]

    The Court’s power to grant leave to amend a document in the proceedings is a discretionary one. In considering whether the Court ought exercise that discretionary power it must have regard to ss 56-61 of the Civil Procedure Act. Sections 56-58 relevantly provide:

13. [63]

    The fundamental legal principles regarding case management, as set out by the High Court in Aon should also considered. The factors identified in Aon, as to the balancing exercise a court must conduct in determining whether to exercise its discretion to grant an amendment to pleadings, was conveniently summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 as follows (at [38]):

14. [64]

    The importance of the overriding purpose in the exercise of the Court’s powers under the Civil Procedure Act was reinforced by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46. The High Court observed (at [51]-[52] and [56]-[57]):

15. [65]

    The substantive proceedings were commenced by statement of claim, filed in the District Court on 20 July 2015. They have been subject to multiple amendments. The PFASOC was served on the defendants on 4 October 2018. It follows that the plaintiff has had ample opportunity to identify the real issues in the proceedings.

16. [66]

    In Aon, plurality of the High Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said (at [112]):

17. [67]

    The application to amend in this case was sought at a very late stage in the proceedings. As outlined above, a 14-day trial in the District Court has been completed, wherein the then extant amended statement of claim was reframed on the third day of hearing. On appeal, the proceedings were subsequently heard in the Court of Appeal over two days. The plaintiff has espoused no explanation as to the lengthy delay in seeking the amendment. A factor weighing against the approach to amend is the absence of a satisfactory explanation for the amendment (see: Aon (at [102]).

18. [68]

    The PFASOC raises, in substance, an entirely new case. I consider that the PFASOC does raise new issues. The PFASOC seeks to incorporate additional events. Thus, granting leave to file the PFASOC would undoubtedly cause additional costs to be incurred and would likely extend the length of the rehearing. I find that there is a strong likelihood that the new claim would need to be further particularised. The prospect of resultant delay is high.

19. [69]

    Further, as the defendants correctly submitted, the PFASOC lacks cogency. The consequence of the inclusions in the PFASOC is unclear and the defendants are justifiably uncertain as to how to answer the case they must meet. This is a further factor against the grant of the application.

20. [70]

    In Chaker v Tompsett [2011] NSWSC 135, Hoeben J (as his Honour then was) said (at [29]):

21. [71]

    As detailed above, I find the PFASOC does not conform with the rules as to pleadings. Further, the contraventions are found throughout the PFASOC. It follows, and I find, that even the possibility of allowing a partial amendment cannot properly be entertained.

22. [72]

    In light of the above reasons, I have determined that the plaintiff’s application to file the PFASOC must be refused.

23. [73]

    I find no reason why costs ought not to follow the event in accordance with the general rule.

ORDERS

1. [74]

   I make the following orders:

   1. (1)

      The plaintiff’s application to file and serve the proposed Further Amended Statement of Claim is refused.

   2. (2)

      The plaintiff is to pay the defendants’ costs of the application.