Williams v Fraser

HER HONOUR: By notice of motion filed 29 May 2019, the plaintiff seeks firstly, an order extending the time by which she is to serve the evidence upon which she relies; secondly, that leave be granted to file and serve her proposed further amended statement of claim (“PFASC”) served on 17 May 2019; that the joint expert causation conclave be reconvened; and finally, that leave be granted to the plaintiff to serve a report in reply to that of Mr Greg Schneider dated 19 May 2019.

The plaintiff is Hailee Williams. The first defendant is John Fraser (“Dr Fraser”). The second defendant is Dr Michael Stening (“Dr Stening”). The third defendant is Craig Seabury, a physiotherapist (“Mr Seabury”). The plaintiff relied upon two affidavits of her solicitor Sheri, Carolan, dated 29 May 2019 and 2 July 2019. The first and second defendants relied up the affidavit of their solicitor Alexander Georgeopoulos dated 18 June 2019. Mr Seabury relied upon the affidavit of his solicitor James Derek Berg, dated 12 June 2019. The parties relied on their court books (3 volumes).

These proceedings are listed for hearing commencing on 12 August 2019 for 10 days duration. As there is some urgency with this judgment, my reasons will, by necessity, be brief.

The defendants oppose the plaintiff being permitted to rely on the report of Associate Professor Sekel dated 9 April 2019; the plaintiff being granted leave to serve her PFASC served on 17 May 2019; and the reconvening of the joint expert conference on causation.

Drs Fraser and Stening do not seek to be heard in respect of the plaintiff’s application to serving a report in reply to Mr Schneider’s report dated 19 May 2019. I grant leave to the plaintiff to serve Associate Professor Sekel’s report by 5.00 pm on 15 July 2019.

The plaintiff was born in 1994 with a congenital or dysplastic spondylolisthesis that results in abnormal bone formation in the lumbo-sacral spine.

The plaintiff’s case against the defendants relates to their respective failure to refer, investigate, diagnose and/or treat her congenital spondylolisthesis in a timely manner, which caused or materially contributed to spinal cord compression and other injuries and disabilities.

The case against Dr Fraser, who is a radiologist, essentially relates to his failure to report on the plaintiff’s 24 May 2012 hip and pelvis x-rays an identifiable, albeit slightly obscured, lumbar L5 dysplastic bifid neural arch with right side hypoplastic pars defect. It is alleged that had he correctly identified the pars defect, the plaintiff would have been referred for further radiological studies and these would have revealed a pre-existing spondylolisthesis, such that she would have been diagnosed with a spondylolisthesis Grade 0. The plaintiff would then have been treated conservatively, given lifestyle advice to prevent injury and may never have suffered spinal cord compression. Further, she would not have been referred for physiotherapy without a full investigation, and she definitely would not have been subjected to spinal mobilisation by Mr Seabury.

The case against Dr Stening, who is a paediatric orthopaedic surgeon, essentially relates to his failure to correctly interpret the 24 May 2012 x-rays, and to elicit, investigate and/or record the plaintiff’s history of lower lumber back pain during the 20 June 2012 and/or 3 December 2012 consultations. Had Dr Stening elicited and investigated the cause of the plaintiff’s back pain, then her pars defect would have been managed and treated before it had progressed to a Grade 3/4 lumbar L5/S1 spondylolisthesis which partially compressed her spinal cord. Further, the earlier identification and management of the plaintiff’s lumbar L5/S1 spondylolisthesis would not have involved physiotherapy and would not have involved spinal mobilisation as part of her treatment.

Mr Seabury is a physiotherapist to whom the plaintiff was referred by Dr Stening for treatment of the diagnosed hip problem. The case against Mr Seabury is that he should have realised during the course of his treatment of the plaintiff between 10 January 2013 and 24 May 2013 that her problems arose from her back and, having so realised the true source of her pain, he should have referred the plaintiff back to Dr Stening for review. It is claimed that his negligence caused damage to the plaintiff because, if he had referred the plaintiff back to Dr Stening her pars defect would have been managed and treated before it had progressed to a Grade 3/4 L5/S1 spondylolisthesis and partially compressing her spinal cord.

The expert physiotherapist retained on behalf of the plaintiff, Michael Ryan, expressed the opinion that Mr Seabury had not departed from acceptable standards of care prior to a consultation on 28 March 2013, following which he believed Mr Seabury should have referred the plaintiff back to Dr Stening. Mr Seabury’s expert physiotherapist, Mr Schneider, expressed the view that Mr Seabury had not relevantly departed from acceptable standards on any occasion during the course of his treatment of the plaintiff.

On 22 May 2013, Thomas Samels, an osteopath, issued a referral for plain x-ray of the plaintiff’s lumbar spine and in the referral form he completed, noted previous x-ray of the left hip suggested endplate pathology.

A joint report of orthopaedic surgery experts was issued on 9 March 2018 following a conclave on 20 February 2018.

A joint report of expert radiologists was issued on 1 May 2018 following a conclave on 30 April 2018.

Joint reports of expert physiotherapists was issued on 5 March 2018 following a conclave on 8 and 27 February 2018; 27 March 2018 following a conclave on 13 March 2018; and 26 April 2018, as a supplementary and amended report.

A joint report of causation experts was issued on 20 March 2018 following a conclave on 20 February 2018.

The proceedings were listed for hearing for 10 days. That hearing was vacated because the plaintiff elected to undergo surgery.

The joint report of causation experts recorded the following agreements:

The point of difference between the causation experts is in respect to claimed neurological deficits allegedly suffered by the plaintiff. The view of the plaintiff’s two experts is that, as a result of delays in diagnosis and treatment, the plaintiff had been left with a partial cauda equina syndrome, leaving her with bladder problems, stress incontinence and urgency, numbness around the perineum and some numbness in the legs. It is the view of all three defendants’ experts that the plaintiff did not suffer from a cauda equina syndrome and had no neurological deficits.

In summary, it was the view of the defendants’ experts that, whether or not there had been any departure from acceptable standards by any of the defendants, the plaintiff had suffered no damage. The plaintiff seeks firstly an extension of time to serve evidence of a “new” medical issue raised in Associate Professor Sekel’s report dated 9 April 2019; secondly, that the causation experts answer some question in relation to the interbody cage option; and finally, leave to file the PFASC. I will deal with the first two issues together followed by the last issue.

Senior counsel for the plaintiff submitted that the 19 February 2018, correspondence was not available when the joint expert causation conclave on causation convened.

The plaintiff submitted that the information from the treating paediatric orthopaedic surgeon is highly relevant to the surgical procedure that, more likely than not, would have been performed had the plaintiff presented without cauda equina symptoms, and that granting leave to rely on Associate Professor Sekel’s report and the reconvening of the joint expert conclave on causation would assist the Court in resolving these factual issues and would promote the “just, quick and cheap” resolution of the real issues in dispute.

According to senior counsel for the plaintiff, Dr Cree, for the first time, unequivocally stated that but for the plaintiff’s cauda equina symptoms, the option of surgically inserting an interbody vertebral cage would have been pursued. Inferentially, once the cauda equina symptoms had occurred, the interbody vertebral cage was no longer an available option for the plaintiff.

In Dr Cree’s previous treatment reports, he raised possible surgical options, including an interbody vertebral cage, but failed to articulate the reason(s) for not pursuing that preferred option.

It was Dr Cree’s report dated 19 February 2018 that provided a better understanding of the availability of that surgical option had the plaintiff presented prior to the onset of cauda equina symptoms. In essence, the surgical approach, in the absence of cauda equina symptoms, would have been the insertion of interbody vertebral cage(s).

The defendants submitted that the “new” allegation that alternative surgery, being the interbody cage, had the likelihood of a better outcome and could have been undertaken but for the cauda equina syndrome which was the result of delays in diagnosis, is problematical for the following reasons:

If Dr Cree made treatment decisions on the basis of the presence of a cauda equina syndrome, it is argued that he did so in error. The plaintiff’s legal representatives have written to Dr Cree asking for clarification as to his statements in his two reports concerning the presence of cauda equina syndrome but he has not replied.

The plaintiff seeks leave to serve the report of Associate Professor Sekel in support of a so called new allegation that the (disputed) cauda equina syndrome caused by delays in the recognition and treatment of the spondylolisthesis led the treating surgeon, Dr Cree, to choose a “less aggressive approach” to her treatment, with the consequence that the outcome of her surgery has not been as good as it might have been.

All the defendants agree, as do I, that the issues of the reasonableness of Dr Cree’s treatment decision, whether or not there was evidence of a cauda equina syndrome when the plaintiff was seen by Associate Professor Walter and then by Dr Cree, and the probability that the plaintiff would have obtained material benefits by reason of the interbody cage surgery, would require the defendants to first obtain additional causation expert evidence and secondly answer the additional questions outlined later in this judgment in a supplementary conclave.

The insertion of interbody vertebral cage(s) would have, according to Associate Professor Sekel, restored the plaintiff’s intervertebral body height and reduced pressure on nerve roots. Further, Associate Professor Sekel gave the following opinion:

Associate Professor Sekel’s opinion is based upon a comment in the report of Dr Cree to the plaintiff’s general practitioner Associate Professor Walter dated 19 February 2018. The comment is in the following terms:

The significance of what Dr Cree seems to have believed was evidence of a partial cauda equina syndrome was first identified in the report of Dr Cree dated 12 June 2013, addressed to referring orthopaedic surgeon Associate Professor William Walter, where he is recorded as saying:

Associate Professor Walter had an MRI performed and that MRI established that there was no cauda equina syndrome. Dr Cree in his report stated, “I’m going to do this operation so as to prevent a cauda equina syndrome.” Dr Cree then says “I did this operation because there was a cauda equina syndrome” (T 4.5-9).

However, this report of Dr Cree dated 12 June 2013 was available to the plaintiff’s legal representatives as early as March 2015, and was provided to Associate Professor Sekel prior to him preparing his initial report. It was also provided to the causation experts, including Associate Professor Sekel. It appears that Associate Professor Sekel had overlooked the report of Dr Cree dated 12 June 2013. The other causation experts also had Dr Cree’s report addressed to Associate Professor Walter dated 12 June 2013 prior to the conclave, but did not have the report of Dr Cree dated 19 February 2018. Further, the conclave’s attention was not specifically drawn to the letter of 12 June 2013 in the questions it was asked.

Section 56 of the Civil Procedure Act 2005 (NSW) relevantly reads:

Practice note SC Gen 11, Joint Conference of Expert Witnesses reads:

Uniform Civil Procedure Rules 2005 (NSW) rr 31.24, 31.26 and 31.28 read:

Essentially, the plaintiff now seeks to rely upon a further report from Associate Professor Sekel, a participant in the causation joint conference (and also the orthopaedic surgeon’s joint conference) where he changes his position on a causation issue. That is, whereas he previously agreed that the plaintiff would have undergone the same surgery in February 2013 or March 2013 as she ultimately underwent in June 2013, he now seeks to say that surgery during the period February 2013 to the end of April 2013 would have involved a different procedure (utilising an interbody cage fusion together with a posterior pedicle and screw fusion), which carries with it a statistically higher success rate and would have restored a more normal anatomy (see Exhibit E, Aff Georgeopoulos).

The supplementary questions that the plaintiff now seeks to ask the causation experts are:

I accept that the plaintiff’s expert, Associate Professor Sekel, overlooked what he says is the significance of the contents of Dr Cree’s report of 12 June 2013. As of 29 May 2019, at the latest, the plaintiff’s legal representatives have put the defendants on notice of the supplementary report of Associate Professor Sekel and the need for further questions to be answered by the causation conclave.

The plaintiff is a young woman. She has relied upon her legal representatives to conduct her case. It appears that what her legal representatives have recently identified is an important issue concerning the alternate surgery involving the insertion of an interbody vertebral cage. The issue is whether, had that surgery been carried out, would it have been appropriate and would it have had a better outcome.

The plaintiff’s case currently presents some difficulties. So far as the defendants’ complaints that Dr Cree and Associate Professor Walter are not witnesses in this case, they can, if necessary, be subpoenaed.

As previously stated, the defendants oppose the service of the additional report of Associate Professor Sekel and the causations experts answering the further questions. Counsel for Drs Fraser and Stening referred me to UCPR r 31.28(4)(a), where exceptional circumstances are required for the plaintiff to be granted leave to serve the additional report of Associate Professor Sekel. According to the defendants, there are no exceptional circumstances and therefore leave should be refused.

Mr Seabury submitted that if the PFASC were amended to add as an additional consequence that the interbody cage surgery would have taken place if there had been an earlier referral, then it is possible that the opinion of an expert in spinal surgery at the time could be obtained and then there could be a conclave. Counsel for Mr Seabury submitted that he was not able to say more, as he did not know how it would pan out and how whatever was agreed might affect the capacity to run the trial (T 57.278-33).

In the event that the plaintiff is granted the leave, Drs Fraser and Stening need to seek further expert opinion from, at a minimum, Drs Dan and Walker. Given the new allegations as to the type of surgery that would have been performed as at February-April 2013 and its likely outcome, they reserve their position as to whether an additional expert's spinal surgical opinion would be sought to address the issue. Mr Seabury also submitted that he will need to qualify an expert spinal surgical opinion.

Bearing in mind that first an expert witness owes a duty to assist the Court and second, the overriding purpose of the Civil Procedure Act is to facilitate the just, quick and cheap resolution of the real issues in dispute, and that this Court must give effect to the overriding purpose, it is my view that the plaintiff should be permitted to serve the report Associate Professor Sekel dated 9 April 2019. I extend time for service of Associate Professor Sekel’s report to 5.00 pm on 15 July 2019. It may be that the defendants need to obtain a spinal surgeon’s report urgently before the conclave can answer the supplementary questions. The legal representatives of the parties are to confer and attempt to agree on when the supplementary conclave to answer the questions set out in paragraph [39] of this judgment should take place.

For clarity, the plaintiff is granted leave to the amend the FASC to include paragraphs [480]-[483] of the PFASC that adds the interbody care surgery. This is because it picks up what is contained in Associate Professor Sekel’s report, for which the plaintiff has been given leave to serve.

Section 64(1) of the Civil Procedure Act is the source of the Court’s power to allow amendments to pleadings. Section 64 reads:

The power under s 64 must be exercised subject to s 58 of the Civil Procedure Act. It reads:

Subsection 58(2)(a) of the Civil Procedure Act provides that the Court must consider the matters in ss 56 and 57 in order to determine what are the dictates of justice in a particular case. The matters enumerated in ss 58(2)(b)(i)-(vii) may be taken into account by the Court in determining what are the dictates of justice. It is not necessary to reproduce ss 56 and 57 of the Civil Procedure Act here.

The plaintiff referred to Queensland v J L Holdings Pty Ltd (1997) 186 CLR 146, where the High Court was asked to consider whether the Court’s refusal to amend pleadings was an erroneous exercise of the Court discretion. The plurality stated that justice is the paramount consideration in determining an application to amend pleadings, and that case management considerations, while relevant, should not prevail over the injustice of shutting a party out from raising an arguable issue that would impede the determination of the real issues between the parties. The plurality noted that justice was the paramount consideration in determining an amendment application and held that no principle of case management could be allowed to supplant that aim.

The defendants referred to Aon Risk Services Australia Limited v Australia National University (2009) 239 CLR 175. In Aon, the High Court dealt with the Rules of the Supreme Court of the ACT. However, these observations of the Court are not limited to the conduct of litigation in the ACT. Rule 21 of the Court Procedure Rules 2006 (ACT) is in similar terms to s 56 of the Civil Procedure Act.

In Aon, Gummow, Hayne, Crennan Kiefel and Bell JJ addressed the position of Queensland v J L Holdings Pty Ltd. Their honours stated at [97], [102], [103] and [111]:

So far as amendments to pleadings are concerned, the plaintiff referred to Dare v Pulham [1992] HCA 70, where the High Court described the purpose of pleadings as:

The fundamental purpose of pleadings is to particularise the claim (and defence) to enable the opposite party to precisely identify the case they are required to meet and, where possible, to be pleaded with precision. This statement is uncontentious. The defendants have never complained that they do not know the case they have to meet.

The plaintiff also referred to In the matter of Imperium Projects [2017] NSWSC 141, in which Black J, with respect to the Court’s discretionary powers, stated that when exercising that discretion, the Court should consider:

In Imperium Projects, Black J observed there was a balance between the plaintiff being provided with a proper opportunity to plead its case, and issues of delay and prejudice, if any, to the affected parties.

It should be observed that the proposed amendments expand the pleading from [111]-[491]. The heading involves complex issues and is four weeks away.

Senior counsel for the plaintiff submitted that she seeks to amend her statement of claim and bring it up to date with the cross claims that have been issued between defendants, and with the evidence that has arisen from the conclaves that have been held between the experts. She seeks to do so prior to the trial to enable the orderly conduct of the trial, and to avoid the need to do so during the trial.

According to the plaintiff, the primary purpose of the PFASC is to truncate the real issues in dispute by setting out the material facts on which the plaintiff intends to rely on at hearing. Some of the material facts have been derived from the defendants’ clinical records and by subpoenaed medical records produced to the Court. Other material facts have arisen out of the several joint expert (liability and causation) conclave reports that discussed knowledge, duty and standards of care. Also there are cross claim on foot between the Drs Fraser and Stening and Mr Seabury and material allegations have arisen from them.

The plaintiff submitted that the amendments are made in a good and timely manner, made for a proper purpose, they are important and there is no prejudice to the defendants, real or otherwise, in allowing these amendments.

According to senior counsel for the plaintiff, the PFASC methodically sets the plaintiff’s case (based on available medical records and other information), what was done, when and by whom. The PFASC pleads what each defendant knew or ought to have known at each assessment and the effect of their respective assessments/findings that influenced, directly or otherwise, the plaintiff’s treatment and why, jointly or severally, each of the defendants are liabile for the plaintiff’s subsequent injuries and disabilities.

Breaking the amendments down into defendants and topics, the plaintiff says:

There at 15 proposed amendments relating to Dr Fraser commencing from paragraphs [35]-[50]. Those proposed amendments focus on what information, knowledge and experience Dr Fraser had when reviewing and interpreting the 24 May 2012 x-rays.

Paragraphs [449]-[451] relate to the alleged scope of Dr Fraser’s duty of care and allegations of negligence. Those paragraphs have sought to particularise the allegations leveled against Dr Fraser.

The amendments to paragraphs [449]-[450] (duty of care) both clarify and raise some minor additional, uncontroversial, issues. They go no further than to assert that Dr Fraser should have, based on the 21 May 2012 referral and/or on the 24 May 2012 x-rays, identified and clarified, by way of additional radiological investigations, the existence of the plaintiff’s right sided congenital pars defect.

Paragraphs [451] and [455] (foreseeability of harm) particularise the risk of harm that the plaintiff was exposed due to Dr Fraser’s alleged breach of duty of care. Those proposed amendments to the FASC are unsurprising and reflect the views expressed by served reports and the joint expert (radiology) report.

Paragraph [456] (particulars of negligence) has removed allegations no longer pressed and included additional allegations arising from Dr Fraser’s failure to review, interpret, investigate and/or report, properly or at all, on the plaintiff’s congenital spondylolisthesis and right pars defect.

These issues have been largely addressed in earlier pleadings. Those proposed amendment raised against the Dr Fraser are not controversial, unsurprising or prejudicial to the first, second or third defendants.

There are 81 proposed amendments relating to Dr Stening commencing from [52]-[133] and [227]-[238]. Those proposed amendments focus on what information, knowledge and experience Dr Stening had when reviewing and interpreting radiological images, assessing, diagnosing, treating and referring the plaintiff for physiotherapy treatment.

Paragraphs [458]-[461] related to Dr Stening alleged scope of his duty of care and allegations of negligence.

The amendments to paragraphs [458] and [461] (duty of care) focus on Dr Stening’s duty to elicit, investigate, warn/advise, treat and/or record the plaintiff’s history of lower lumber back pain. It expands on what was required to discharge that duty including the investigations that should have been performed.

Paragraphs [462] and [463] (foreseeability of harm) detail the risk of harm that the plaintiff was exposed due to Dr Stening’s alleged breach of duty of care. Those proposed amendments to the PFASC are unsurprising and reflect the views expressed by served reports and the joint expert (orthopaedic) report.

Paragraph [465] (particulars of negligence) has removed allegation no longer pressed and included additional allegations arising from Dr Stening’s failure to review, interpret, investigate, warn/advise and/or report, properly or at all, on the plaintiff’s congenital spondylolisthesis and right pars defect.

Those proposed amendments raised against Dr Stening are not controversial, unsurprising or prejudicial to the first, second or third defendants.

A significant number of the proposed amendments relate to the 14 consultations the plaintiff had with Mr Seabury between 10 January 2013 and 28 May 2013, and the plaintiff’s assessment, management and treatment provided by Mr Seabury.

Those 14 consultations amount to 285 paragraphs commencing from [139]-[431], save for paragraphs [227]-[238] which related to Dr Stening and for paragraphs [398]-[401], [417], [425]-[426], which relate to the treatment provided by Dr Samels.

Those 285 paragraphs provide details, derived from Mr Seabury’s clinical records, of the plaintiff’s signs and symptoms at each consultation and Mr Seabury’s assessment thereof and prescribed treatment.

Within those paragraphs, especially from paragraph [191] onwards, they record the Plaintiff's changing symptomology and document Mr Seabury’s awareness of those symptoms and his response.

Those proposed amendments raised against Mr Seabury have elaborated on previous pleadings and are, in the main, uncontroversial.

Paragraphs [467], [469] and [471] relate to Mr Seabury’s alleged scope of his duty of care and allegations of negligence. Those paragraphs have been expanded to clearly particularise the allegations levelled against Mr Seabury, especially as the reported symptoms have progressed, and ought to have put him on notice that the treatment may not be appropriate and that the underlying condition may not have been what he had previously been told by Dr Stening.

The amendments to paragraphs [467] (duty of care) and [469] (foreseeability of harm) both clarify and raise some minor additional, uncontroversial, issues. They go no further than to assert that Mr Seabury should have ceased treatment, referred the plaintiff back to Dr Stening and/or advised the plaintiff to avoid certain activities. These issues already exist in the original statement of claim and on the cross claims between the defendants.

Those issues were considered and discussed by the experts in their respective reports and commented on the several joint expert conclave reports. There should be no surprises and certainly no prejudice.

The amendments to paragraph [471] (particulars of negligence) are a combination of the issues raised in the report of Mr Ralston, physiotherapist, served in the cross claim by the first and second cross claimants, which arise from the various joint expert conclave report and/or expand on existing allegations. There should not be any surprises and certainly no prejudice to the first, second, or third defendants.

Paragraph [104] of the amended statement of claim (“ASC”), now [484] of the PFASC, states:

The plaintiff asserts that her injuries and disabilities were caused by the negligence of the defendants. Had the plaintiff been properly investigated, diagnosed, warned and educated as to activities to avoid that may trigger the spondylolisthesis, and/or referred for surgical intervention, in a timely manner, then she would have avoided her spinal cord injuries and its sequelae.

The amendments to causation found at paragraphs [472]-[479] of the PFASC arise from various served medico-legal reports and from joint expert conclave reports.

Paragraphs [472] and [473] of the PFASC relate to the failure to warn the plaintiff of her spondylolisthesis and to avoid activities that may cause instability or trigger a slip between the spinal bones that could cause spinal cord compression. The plaintiff was not warned and lost the opportunity to prevent the progression of her spondylolisthesis.

Paragraphs [474]-[477] of the PFASC relate to the failure of the defendants to warn the plaintiff to avoid any activity and/or treatment that could trigger, exacerbate and/or progress her spondylolisthesis. Those amendments are not controversial, unsurprising or prejudicial to the defendants.

Paragraphs [478] and [479] of the PFASC plead that had the defendants provided such advice and/or warnings in the plaintiff would have adjusted her lifestyle and thereby avoided the progression of her spondylolisthesis. Conservative management was available to the plaintiff and had been raised in served reports and in the joint expert (causation) conclave report.

The proposed amendments to the PFASC are unlikely, due to the dissemination of medical reports, joint expert reports and clinical records, to cause any surprise or prejudice the defendants if leave was granted.

The exercise of that discretion is not prescriptive but rather involves reflection of the circumstances underpinning that request. Moreover, the focus of that discretion should ensure, where possible, that a party is not denied the right to properly put their case.

Save for the joint expert conclaves on damages and psychiatric issues and the reconvening of the joint expert (causation) conclave on a discrete issue, it is expected that once this Court has determined whether leave will be granted, the remaining joint expert conclaves will be finalised and joint expert reports subsequently produced.

Further, the parties are to serve evidentiary statements which, from the plaintiff’s perspective, are well advanced and will be finalised and served in accordance with court orders.

It is clear from paragraph [104] of the ASC (now [484] of the PFASC) that that the delay in referring and treating the plaintiff spondylolisthesis, or the failure to appropriately educate her, caused or materially contributed to her injuries and disabilities. The plaintiff submitted that this paragraph is arguably broad enough to encompass the scenario that had an interbody vertebral cage(s) been inserted, in the absence of cauda equina symptoms, then the plaintiff would have avoided her spinal cord injuries and its sequelae. The plaintiff submitted that while the interbody vertebral cage(s) procedure was not specifically pleaded, it is, nonetheless, caught up in the generality of paragraph [484] of the PFASC.

The defendants have asserted that the surgical option of the insertion of the interbody vertebral cage(s) and its effect were neither pleaded and/or particularised. The plaintiff has endeavoured to disavow the defendants of their stance.

Nonetheless, for abundant clarity, and to appease the concerns of the defendants, the plaintiff has proposed amendments to her causation pleadings with the inclusion of paragraphs [480]-[483].

Paragraphs [480]-[483] plead as follows:

Those paragraphs plead that but for the defendants’ negligence, the plaintiff would have had interbody vertebral cage(s) inserted which would have returned her spinal anatomy to within normal parameters and thus avoided her subsequent spinal cord compression and its sequelae.

The proposed causation amendments to the PFASC arise from the report of Associate Professor Sekel, dated 9 April 2019, and the literature cited by him.

The proposed causation amendment to the PFASC relating to the insertion of interbody vertebral cage(s) plead, from a causation perspective, what would, more likely than not, have occurred but for the defendants’ negligence.

The plaintiff accepts that this is a complex case and that the complexity requires careful articulation of the facts, matters and circumstances to enable the Court and the other parties to identify the issues that will need to be addressed during the hearing. To fail to do so would be undesirable. The complexity has been clarified by the conclave process and reports, and the cross claims.

According to the plaintiff’s submissions in respect of the proposed amendment, the primary purpose of the amendment is to “truncate the real issues in dispute by setting out the material facts on which the plaintiff intends to rely at hearing”: see plaintiff’s submissions at [61]. Further, the plaintiff submitted that the material facts now pleaded in the PFASC derive from various sources, including the defendants’ clinical records and subpoenaed medical records, as well as the joint reports and the cross claims. The plaintiff submits that through the amendment, the PFASC methodically sets the plaintiff's case based on available medical records and other information, what was done, when and by whom and why jointly or severally each of the defendants are liability for the plaintiff’s subsequent injury and disabilities: see plaintiff’s submissions at [65]. The defendants oppose the proposed amendments and submitted that the amendments ought not be permitted at this late stage.

The bases for Dr Fraser and Dr Sening’s opposition are as follows.

First, the PFASC is prolix. In large part, that seems to be because instead of providing a brief summary of the material facts in accordance with rules 14.7-14.8 of the UCPR, the new paragraphs set out many allegations that, in effect, amount to submissions on causation. That is, they set out not what was done or even what not was done, but what the plaintiff says would have occurred if particular circumstances existed. By way of example, Drs Fraser and Stening refer to paragraph [73]-[82], [85]-[88], [111]-[119], [121]-[123] and [128]­[130] of the PFASC.

Secondly, in a number of respects, the proposed PFASC sets out what the plaintiff says she would have done but for the negligence of the first and second defendants: see, for example, paragraphs [67], [83], [108], [472], [475] and [476] of the PFASC. With respect, the plaintiff cannot give evidence of what she would have done but for the alleged negligence pursuant to s 5D(3) of the Civil Liability Act unless what she says is against her interest, and is simply not a proper matter to plead what she would have done. The relevant material facts are simply that the act or omission occurred and that as a consequence, she developed the spondylolisthesis or a more severe form of spondylolisthesis, so that in either case, she ultimately developed a partial cauda equina syndrome.

Further, it is noted that the plaintiff now seeks to plead that but for the alleged negligence of the first and second defendants, she should have adjusted her lifestyle and avoided any activities that might cause a spondylolisthesis: see for example paragraphs [472]-[473] of the PFASC. It is noted that the plaintiff has served no expert evidence to suggest that the plaintiff’s lifestyle or any particular activity she was engaging in during the period May 2012 to May 2013 caused her spondylolisthesis. Before the Court would permit an amendment as is now sought in this matter (on an issue going to factual causation in respect of a medical negligence claim) there would normally need to be some expert supporting evidence.

Thirdly, in one respect, the PFASC pleads evidence rather than material facts: see paragraph [442].

Fourthly, in respect of certain allegations the plaintiff now seeks to make against Dr Stening, there is a lack of any relevant expert support, notwithstanding the plaintiff having long ago served her liability evidence and the liability experts having prepared joint reports. In particular, Dr Stening refers to paragraph [460] of the PFASC in which reference is made to “anomalies on the x-ray of 24 May 2012” and the particulars of negligence at paragraph [465(v)-(z)].

Dr Stening emphasises that according to the joint report of orthopaedic surgery experts, the only anomaly which Dr Stening should have identified on the 24 May 2012 x-rays is the existence of a spina bifida occulta, an incidental finding of no clinical significance: see the answer to question 1, and also the answers to questions 2-4 of the joint orthopaedic report, pages 114-120 of Exhibit SZC to the Affidavit of Sheri Carolan, sworn 21 May 2019.

Fifthly, the first and second defendants object to the addition of paragraphs [480]­[483] of the PFASC, which introduce the issue of whether the plaintiff would have undergone a different form of surgery with use of an interbody vertebral cage fusion, had there been diagnosis of her condition and referral for surgery between about mid February and April 2013.

It is now about four weeks out from the hearing, and the plaintiff has not provided a satisfactory explanation as to why the amendment was not sought at an earlier time, particularly given when the joint liability reports were obtained and the contents of Dr Cree’s 12 June 2013 report. The PFASC, if filed, will inevitably require a request for further and better particulars and the first and second defendant seeking further expert evidence, in addition to necessitating the reconvening of the causation joint conference.

Mr Seabury submitted that the issues raised in the pleadings have been explored in the conclave. These new amendments cause real prejudice, real danger and real confusion of the issues (T 56.35-45). Further, if this pleading is to be amended in the way proposed, then the hearing would have to be abandoned. In the Aon sense, that would be possibly the wrong way to go and the answer would be to exclude the amendment. It is not necessary for the purposes of the currently understood issues. There is no complaint that any of the pleading as it is currently pleaded does not plead sufficient material facts for the third defendant to understand the issues (T 57.19.25).

As previously stated, the plaintiff should be able to rely on the amendments pleaded in paragraphs [480]-[483] of the PFASC that refer to the alternate interbody surgery, on the basis that I have already granted leave for the supplementary report of Associate Professor Sekel to be served and directed the causation experts to answer further questions on this topic as set out in paragraph [39] of this judgment.

While the third defendant at [21] to [29], [31] to [34] addressed against Dr Stening concerning a differential diagnosis, this issue has not been addressed in the causation experts’ report. It is now too late to replead this issue as a further statement will be required from Dr Stening and the causation experts would need to comment upon these issues. I might add that third defendant’s cross claim was filed on 24 August 2018 so the plaintiff’s legal representatives had an opportunity to seek this amendment earlier. There is no proper explanation for delay.

I agree that the plaintiff’s amendments are confusing and prolix. Some of them are not supported by any evidence, but rather are aimed at casting a wide net. They do not seek to plead the real issues in dispute.

It is my view that the defendants will not be able to meet these other amendments, as it is now four weeks out from the trial. They will suffer real prejudice such that they may not receive a fair trial. The dictates of justice demand that the balance of the amendments contained in the PFASC are refused. I make such an order.

It is noted that the defendants may need to obtain a spinal surgeon’s report urgently before the conclave can answer the supplementary questions can take place. The legal representatives of the parties are to confer and attempt to agree on when the supplementary conclave to answer the questions set out in paragraph [39] of this judgment should take place.

Costs are reserved.