Rae by his tutor Rae v South Western Sydney Local Health Network

1. [1]

   HIS HONOUR: By notice of motion filed on 22 August 2016 the plaintiff seeks leave to amend his statement of claim. There have been several amendments already. The proposed amendments are opposed, but only to the extent that they concern changes or additions to the particulars of negligence.

2. [2]

   The plaintiff was delivered on 19 December 1992. He was diagnosed following his delivery with hypoxic brain damage, cerebral palsy, and intellectual and speech impairments that will require lifelong care. In the several versions of the statement of claim filed so far the plaintiff has consistently alleged that these conditions are the result of the defendants’ mismanagement of his mother’s labour. That general allegation has been variously particularised from time to time. The plaintiff contends that the proposed amendments are in effect a more detailed particularisation of the plaintiff’s case in negligence that has been pleaded thus far. The defendants disagree.

3. [3]

   On 3 April 2015, Professor Euan Wallace, a specialist obstetrician, provided a report to the plaintiff’s solicitor. It is in clear and unambiguous terms. It specifies the several ways in which Professor Wallace considers that the defendants were at fault. Professor Wallace’s opinion in summary is expressed by him to be as follows:

4. [4]

   Professor Wallace’s report was served on the defendants on 7 April 2015.

5. [5]

   On 11 August 2015, the plaintiff’s solicitor wrote to the defendants’ solicitor asking if the defendants had completed service of their expert evidence on liability and quantum. With commendable efficiency the defendants’ solicitor replied on the same day advising, “Yes, we have completed service of our evidence”.

6. [6]

   The proceedings are listed for hearing commencing on 7 November 2016 with an estimate of three weeks. The plaintiff maintains that the proposed amendments do no more than give voice to Professor Wallace’s opinions and in any event are entirely consistent with the case as already particularised. It is inherent in that contention that they raise no new or different issues and that the defendants could not in the circumstances have any genuine basis upon which to oppose them. The defendants have not suggested either in terms or by implication that they are prejudiced by the proposed amendments although they have not been in possession of them for long enough to have obtained final instructions about it. The defendants’ attitude is best encapsulated as a concern, yet to be verified or confirmed, that “the proposed fourth amended statement of claim raises new allegations against the second and fourth defendants which, in fairness, should be put to those doctors and may also need to be put to the defendants’ experts for the purpose of obtaining supplementary reports.”

7. [7]

   The test of the true relationship between what has been pleaded already and what is now proposed is best understood by a comparative appreciation of the particulars of negligence upon which the plaintiff now wishes finally to rely. That material is as follows:

8. [8]

   In my opinion, the arguably “new” particulars are no more and no less than a slightly more detailed description of the case as already particularised. To put that comment in proper context, it is clear that this litigation is concerned with what is now a tragically well-worn path involving an alleged professional failure to manage both the plaintiff’s labour and his delivery in a way that took account of serious and obvious indications for an expedited birth. It is clear from the case as presently pleaded that CTG monitoring and interpretation, the significance of foetal distress, including bradycardia, the suitability or advisability of a Caesarean or forceps delivery, and similar associated issues have for long been at large in this litigation. In particular, the experts retained for the parties are, in my experience, all well versed in litigation of this particular type and well apprised of the specialist medical issues that are involved. I am unable to detect in the proposed amended particulars any issue or question that would not have been at the forefront of all the experts’ attention and their respective consideration of what, if anything, went wrong during the course of the plaintiff’s antenatal period and delivery. The particulars proposed do not in my estimation, and contrary to the defendants’ position, raise any genuinely new issues at all. It would surprise me to the point of astonishment if the defendants or their experts were, upon proper analysis, in any way vexed or taken by surprise by what the plaintiff now wants to do.

9. [9]

   In response to that view, however, the defendants now say that, even though it is true that they have been in possession of Professor Wallace’s report since April last year, and even though they indicated, in effect, that they did not wish to file evidence directly dealing with it, that is beside the point, because the pleadings determine what the case is about and the plaintiff did nothing to bring the pleaded case into line with anything that Professor Wallace had to say. Unless or until that occurred, the defendants were entitled to proceed upon the basis that the matter would be heard and determined by reference to the current pleading.

10. [10]

    I accept that the plaintiff could and probably also should have applied to amend the statement of claim long before this. I also acknowledge that the balance of competing prejudices is no longer the test of whether an amendment should be permitted or as persuasive a factor as once it might have been: see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. On the other hand, the parties are expected, and should expect, to contest what are the real issues in dispute. Sections 56, 57, 58 and 64 of the Civil Procedure Act 2005 are of critical importance in this respect. Sections 58 and 64 provide relevantly as follows:

11. [11]

    In my opinion, the discernment by the Court of the issues that have been particularised in the proposed amendments are all and always were the real issues in dispute in this case. It is very important in my view, having regard to the statutory exhortations in the Civil Procedure Act, that form should not be permitted to triumph over substance. Without intending to trivialise or over- simplify the liability issues in this case, they are in general terms three in number:

    1. (1)

       Was the plaintiff’s delivery mismanaged as alleged in any way by the defendants or one of them?

    2. (2)

       If so, by which defendants and in what way?

    3. (3)

       If not, why not?

12. [12]

    It is wholly unrealistic in my view to anticipate or expect that any of the parties’ respective experts in conclave would be taken by surprise or confused with anything said by Professor Wallace in his 3 April 2015 report, quite apart from whether or not they agree with him, or with respect to the particulars of negligence now sought to be formulated by reference to Professor Wallace’s opinions. Indeed, I can see no single issue of obstetric opinion or practice that is brought forward in the proposed amendments that is not or would not be the very stuff of the professional life of every expert who has been retained by anyone in this case.

13. [13]

    It follows in my opinion that the amendments should be allowed. Two issues remain for consideration.

14. [14]

    First, in order to take account of what seems to me to be the faint prospect that the defendants are prejudiced in some way by the proposed amendments, they should have liberty to apply on short notice to say so and how and to seek such relief as may seem to them in the circumstances to be necessary or appropriate. It would surprise me if that included an application to vacate the hearing but in expressing that view I do not intend to foreclose the defendants’ entitlement to take whatever course they deem relevant.

15. [15]

    Secondly, although I have not yet heard the parties on the question of the costs of this motion or the amendment, it seems to me that those costs should be paid by the plaintiff. An application to amend in 2015 would have lacked the controversy apparently at large in the present application. I appreciate that some matters have affected the plaintiff’s position since then, including the untimely death of senior counsel originally retained by him. However, the defendants have not created the need for the application to amend and are entitled to expect that the pleadings will define the issues for trial and not the reverse. Unless the plaintiff wished to suggest otherwise, I would propose to order that the costs thrown away or occasioned by the proposed amendment, including the costs of the motion, be paid by the plaintiff.

Orders

1. [16]

   Subject to the above, I order as follows:

   1. (1)

      Grant leave to the plaintiff to amend the statement of claim in the form of the fourth amended statement of claim annexed to the affidavit of Alicia Kuay Wong sworn 19 August 2016.

   2. (2)

      Order the plaintiff to pay the costs of and incidental to the motion.