Smythe v Burgman

HIS HONOUR:

The plaintiff consulted the defendant between 15 October 2010 and March 2011.

On 20 April 2011 the plaintiff underwent a below knee amputation. The plaintiff alleges that the defendant failed to diagnose a thrombosis and that failure caused or materially contributed to the below knee amputation. The plaintiff alleges that the defendant was in breach of duty in failing to properly examine her left lower leg, particularly the foot, on 14 March 2011 and in failing to identify left leg ischaemia at that time and/or refer the plaintiff for appropriate investigation.

On 30 June 2014 the claim was allocated a hearing date commencing 9 March 2015 with an estimate of 10 days. The plaintiff, by motion filed 20 February 2015, has applied for the hearing date to be vacated. The defendant opposes that application.

It is the motion to vacate the hearing date which was heard by the Court on 3 March 2015 and which is the subject of this judgment.

The cause of action accrued in March/April 2011. On 31 May 2011 the plaintiff instructed Messrs Carroll and O’Dea, solicitors, to investigate a medical negligence claim against the defendant. On 28 November 2012 a Statement of Claim was filed. On 27 March 2013 a Defence to the Statement of Claim was filed. On 2 February 2014 a mediation took place at Tweed Heads, but was unsuccessful in resolving the claim.

On 21 May 2014 an Amended Statement of Claim was filed. On 3 June 2014 a Defence to the Amended Statement of Claim was filed. On 30 June 2014 the matter was listed for hearing, commencing 9 March 2015, and orders for case management in accordance with Practice Note SC CL 7 were made. On 12 December 2014 leave was granted by the Court for the filing by consent of a Further Amended Statement of Claim. The plaintiff’s solicitor handed up an Affidavit evidencing Readiness for Hearing. On 27 January 2015 the plaintiff filed a Further Amended Statement of Claim. This document did not make any allegations arising from the prescription of tranexamic acid. On 9 February 2015 a Defence to the Further Amended Statement of Claim was filed.

Until the filing of the Further Amended Statement of Claim, the plaintiff’s case against the defendant had comprised two parts. One was the failure to diagnose and investigate. The other was that the defendant had been negligent in the prescription of tranexamic acid for the plaintiff which had led to the formation of a blood clot, which in turn had contributed to the development of a thrombosis in the left leg.

On the issue of whether tranexamic acid should have been prescribed by the defendant for the plaintiff, Dr Korda, gynaecologist, was retained on behalf of the plaintiff and provided expert reports and Professor Fraser was retained and provided reports for the defendant. Professor Fraser is a world renowned expert in the investigation and therapy of abnormal uterine bleeding and has authored a large number of publications on this topic. He also had particular knowledge relating to the use of tranexamic acid in Australia as a therapeutic agent.

By way of further background, the plaintiff had a longstanding history of excessively heavy menstrual bleeding due to uterine fibroids. Other treatments had been tried which did not control her bleeding. The defendant consulted Dr Trueman, gynaecologist, who recommended tranexamic acid as treatment until the bleeding stopped. The tranexamic acid decreased the plaintiff’s bleeding but did not stop it. Thereafter, the tranexamic acid treatment was continued for 12 weeks.

The issue between the parties before the filing of the Further Amended Statement of Claim is probably best demonstrated by the following question and answer in Professor Fraser’s report of 13 June 2014.

In a later report of 25 June 2014 Professor Fraser said:

Those reports were served on the solicitors for the plaintiff on 7 July 2014.

In response to the reports of Professor Fraser, Dr Korda prepared a report of 17 July 2014 as follows:

It is clear from other material that the legal advisors of the plaintiff discussed Professor Fraser’s reports with Dr Korda. It should also be noted that Mr Dooley of senior counsel had been retained on behalf of the plaintiff. It is not known what part he played in any discussions with Dr Korda.

There was no issue that in November 2014 Messrs Carroll & O’Dea advised the plaintiff to discontinue that part of her claim, which related to the defendant prescribing tranexamic acid. The plaintiff accepted that advice and gave instructions to that effect.

By letter dated 14 November 2014 (received by the solicitors for the defendant on 20 November 2014) Messrs Carroll & O’Dea advised as follows:

Following receipt of that letter, apart from the filing of a Further Amended Statement of Claim and Amended Defence, the following events occurred:

For reasons which were not explained, Messrs Carroll & O’Dea ceased acting on behalf of the plaintiff on 10 February 2015. On that same date, the plaintiff retained her present solicitors, Messrs Monaco Solicitors, with Ms Burgan as the partner dealing with the matter. It should be noted that there must have been some problems in the relationship between Messrs Carroll & O’Dea and the plaintiff as early as December 2014 because there was evidence of a discussion between the plaintiff and Ms Burgan at that time. The contents of that conversation are not known except that the plaintiff related part of her history and Ms Burgan regarded the conversation as being in the nature of “an inquiry” by the plaintiff.

In her affidavit of 26 February 2015 Ms Burgan said that she received some medical reports from Messrs Carroll & O’Dea on 11 February 2015 and the balance of the file, comprising four large boxes, on 18 February 2015. She then reviewed the whole file. On 19 February 2015 she contacted the solicitors for the defendant and said words to the effect:

Ms Burgan explained the basis for that decision in her affidavit and in evidence before me.

She was unhappy with the joint expert report, prepared as a result of the conclave on 1 December 2014, because some matters which would form part of the plaintiff’s evidence at trial had not been placed before the experts. It turned out that although some statements had been provided by the plaintiff, she had not provided an evidentiary statement as required by the Practice Note. In addition to that problem, Ms Burgan said that on her reading of the report prepared as a result of the conclave the resolution of the claim as currently pleaded would depend upon whether the plaintiff or the defendant was believed as to what occurred at the consultation on 14 March 2011. It was her opinion that further factual material would need to be placed before the doctors at the conclave who prepared the report.

Ms Burgan said that she had reviewed all the evidence relating to the tranexamic acid question and had concluded that this was an issue which required further investigation, further evidence and further questions to be put to experts. She and others in her firm at her direction, had read scientific articles relating to the question. She had consulted a gynaecologist and a haematologist on the question. On the basis of that examination and those consultations, Ms Burgan was of the opinion that the claim based on the administration of tranexamic acid should not have been discontinued and should be again pleaded in the plaintiff’s Statement of Claim.

Ms Burgan said that despite the undoubted difficulties in establishing causation in respect of the tranexamic acid issue, she proposed to rely upon the provisions of s5D(2) of the Civil Liability Act 2002, i.e. the policy question of whether a court was prepared to consider whether or why not responsibility for harm should not be imposed upon the negligent party.

Ms Burgan stated that should an order to vacate the hearing date be made, the following additional steps would need to be taken to prepare the plaintiff’s case:

The plaintiff put the following submissions.

She had suffered a serious injury which has had catastrophic consequences for her and her family. She will incur substantial medical costs into the future, particularly in relation to the need for prostheses. She is entitled to have her case put fully and properly before the Court and not only half her case. The plaintiff has only one opportunity to obtain compensation for her injury and should be entitled to put her case fully.

The plaintiff will suffer far greater prejudice if she is not allowed to amend her pleadings than will the defendant. Any delay suffered by the defendant can be adequately met by a costs order. From the plaintiff’s point of view, her inability to put the whole of her case may mean that she fails altogether with no further ability to seek compensation. At the very worst, the case would only be delayed for a year and when it next came before the Court, it would be able to be run properly with all relevant issues canvassed.

Taking the plaintiff’s particular situation into account, the interests of justice favour her being allowed to amend her pleadings and therefore the hearing date being vacated. This was at the heart of the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175.

The need for an amendment to the Statement of Claim, and therefore the vacation of the hearing date, was due to an error in judgment on the part of the previous solicitors, which has been fully explained. The plaintiff, who was entirely dependent upon her previous solicitors and senior counsel for advice, followed that advice in good faith and should not be penalised if that advice were incorrect.

As the plaintiff submitted, the most recent authoritative statement of principle on this kind of issue is that of the High Court in Aon Risk Services. It is, however, useful when considering such questions to keep in mind exactly what the High Court did say.

French CJ at [5] – [6] said:

The plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

The rules to which the High Court was referring in Aon Risk Services are similar to sections 56 – 58 of the Civil Procedure Act 2005. Those sections relevantly provide:

Applying those sections and the guidance provided by the High Court, I concluded that the plaintiff’s application to vacate the hearing date on 9 March 2015 should be refused. Accordingly, I refused the plaintiff’s application with reasons to follow. These are those reasons.

The consequences of vacating the hearing date, as the plaintiff appreciated at least in part, would be substantial. In many respects, the preparation of the case would need to start again. New reports would be received from doctors not already qualified in the case, e.g. a gynaecologist and a haematologist, which would need to be responded to by those medical practitioners qualified on behalf of the defendant. When the new issues between the parties had been refined, it would be necessary for a further conclave of experts to take place. Apart from the cost and delay, one also needs to take into account the inconvenience to those doctors who had attended the earlier conclave and what, in effect, was the waste of their time in so doing. There would also need to be an additional conclave involving gynaecologists.

The application to vacate the hearing date is based largely upon the assessment by Ms Burgan of the prospects of success of the transexamic acid claim. In reaching that conclusion, she does not appear to have had the assistance of senior counsel. She did not consult with any of the doctors already qualified on behalf of the plaintiff, including Dr Korda. While accepting that I have not carried out the additional research and had the consultations to which Ms Burgan has referred in her affidavit and oral evidence, I am of the opinion that the proposed amendment to the Statement of Claim on which the application to vacate is largely based, is problematic.

The issue was already considered by competent solicitors and senior counsel, who had been in the matter significantly longer than Ms Burgan. The concern which they had and their motivation for providing the advice which they did, emerges clearly from a reading of the reports of Professor Fraser and Dr Korda. The absence of clinical testing and research in relation to a controversial medical issue can prove fatal to a plaintiff’s case. The decision in King v Western Sydney Local Health Network [2013] NSWCA 162 in respect of which special leave was refused by the High Court, illustrates the difficulty.

The suggested reliance upon s5D(2) of the Civil Liability Act 2002 is equally problematic. While the High Court has made some passing references to that section, it has yet to apply or interpret it. The references by the plurality (French CJ, Gummow, Crennan and Bell JJ) to s5D(2) in Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [24] – [26] identify the complexities associated with reliance upon the section.

I am not persuaded that on the material before me, a proper basis exists for amending the Statement of Claim in the way suggested and for the reasons suggested. Putting the plaintiff’s case in relation to the amendment at its highest, all that can be said is that there may be an arguable case after further enquiry and investigations have been carried out. That has to be considered against the background of other competent legal advisors having examined the same question over a substantial period of time and coming to a contrary conclusion.

Those considerations are sufficient to dispose of the application. There are, however, other important matters. As was stated in Aon Risk Services, this matter has been listed for 10 days commencing 9 March and there is a Judge available to hear it. To vacate that hearing date, would disadvantage other litigants who could have had their matters listed for those two weeks but have not been able to do so. Even if matters moved as expeditiously as they could, it would be most unlikely that a further hearing date could be found before the middle of 2016.

Apart from the simple fact of delay, there is the pressure to which litigants are exposed the longer a case remains unresolved. This applies as much to the defendant as to the plaintiff. In this case, the defendant’s professional reputation is at stake. She would be exposed to the worry and anxiety associated with that for another 12 months. There is also the fact that the defendant has cancelled all appointments and medical commitments for two weeks commencing 9 March 2015 in the expectation that the trial would proceed as scheduled.

Although the plaintiff quite properly conceded in her motion that she would pay costs if the hearing date were vacated, that may not, in reality, be of much assistance to the defendant. The evidence before me revealed that both the plaintiff and her husband are in receipt of pensions and they live in rented accommodation. It may well be that they are unable to pay any costs order made against them. This is of relevance because the additional costs likely to be incurred in preparing what, in effect, is a substantially new case are likely to be large.

There are other matters which militate against granting the plaintiff’s application. There has been no explanation for why Messrs Carroll & O’Dea ceased to act for the plaintiff so close to the hearing date. There are the matters referred to by the High Court in Aon Risk Services associated with the courts being publicly funded and the maintenance of public confidence in the judicial system.

In summary, the application to vacate has been brought too late. The basis for it is problematic. To grant the application would involve substantial cost and delay in that what is proposed is the bringing of a new case by the plaintiff. The application is the very antithesis of the rationale behind ss 56 – 58 of the Civil Procedure Act 2005 and their interpretation by the High Court in Aon Risk Services. To grant this application would make a mockery of the case management which has taken place over the preceding two years.

For the above reasons, I confirm Orders 1 and 2 made on 3 March 2015 as follows:

In the course of the hearing of the motion, it became clear that the plaintiff had not filed an evidentiary statement. One of the consequences was that the full factual basis for the plaintiff’s case has not been set out. It was suggested that there were matters which should have been taken into account in the conclave of expert witnesses and which otherwise should be taken account of during the concurrent expert evidence at trial. While this issue is a matter essentially for the trial judge, it is important that any additional factual matters upon which the plaintiff intends to rely are made known to the defendant as soon as possible.

It was for that reason that I made a further order which I now confirm: