Lawrence v Cain

HAMILL J: So in the matter of Lawrence v Cain I note before giving these brief reasons ex tempore that it is now 10 to 4pm, and there are other matters to be dealt with in the duty list today. This explains the brevity of what follows. The application by the plaintiff is for an expedited hearing and for what might be considered to be an ambitious timetable in order to enable this matter to be heard before the end of this year.

The application is also to join three additional defendants. The application is brought by notice of motion filed in Court today and is supported by an affidavit of Karen Joy Lawrence, and perhaps more significantly an affidavit with annexures of Sachini Amarasinghe. To put it shortly and bluntly the plaintiff is dying and her life expectancy, whilst difficult to predict with any certainty, is unlikely to exist beyond the middle of next year, and perhaps even earlier. She has very serious cancer.

Her case and claim was originally brought against her general practitioner Dr Cain on 5 July 2018 by statement of claim. Dr Cain is ably represented by Mr Regener here today and he does not oppose the expedition application given the sad and extreme circumstances in which it is made. He has, however, raised a number of issues surrounding the potential practical difficulties of joining the additional defendants. The additional defendants are in fact two other doctors, one being a Dr Kim who is a gynaecologist and one being a Dr Longfield who is a gastrointestinal surgeon. It is also proposed to join the Mid North Coast Local Health District as a defendant.

The practical considerations raised by Mr Regener are obviously well‑founded because the normal timetabling of such a case would involve the defendants having considerably more time to prepare their defence. However, the circumstances are, as Mr Beale points out, extreme. The doctors prepared to be joined as defendants will be doubtlessly covered by insurance companies and lawyers well familiar with the type of litigation here in question and with access to the kinds of experts that will be needed to meet the claim. Further, if any orders that I make are unduly prejudicial to any of the defendants that I do propose to allow the plaintiff to join, an application can be made for some variation of the orders or indeed revocation of them once more material is known.

At this stage all I really know is that the plaintiff is in extreme ill health and a failure to make orders of the kind I propose to make will probably mean that she would not be able to give evidence in the Court case, let alone ultimately enjoy the fruits of its success should she be successful.

The change in circumstances, which is to say the circumstances in which it was thought appropriate to join the additional defendants, arose with the report of a Dr Morris, a professor of surgery. That report was dated 23 February 2019 which gives rise to the question as to why this application was not made earlier, but I accept from the Bar table what counsel has told me, that it was simply an administrative problem in which that report did not come to the attention of counsel with conduct of the hearing until a subsequent report was provided to him which was more concerned with the plaintiff's life expectancy and whether an application of the current kind should be made.

Once that report came to his attention counsel also became aware of the contents of Professor Morris' report which indicated that there may be a case or is a case on his opinion, that the other defendants may similarly have been negligent in their treatment and care of the plaintiff. As I have said, and I again seek to underline and stress, if the orders I make are unduly onerous or prejudicial it will be open to the putative new defendants to seek some variation or revocation of those orders.

There has been some discussion between my Associate and the Listing Clerk as to the first available date. We did not end up settling upon that date because we needed to give the defendants some additional time to prepare the case, but we have managed to find a date for hearing on 11 November 2019 and we have fashioned a timetable around that, attempting to give the defendants as much time as possible to prepare themselves to defend the proceedings if they are not otherwise settled in the meantime.

There has been helpful dialogue between both lawyers and myself about the timetable that should be set and with their assistance, for which I am grateful, I propose to make the following series of orders:

I put the matter before the Registrar in case there be an application to allocate it to a Judge for case management or any other application for things we have not thought of today.