Supreme Court New South Wales Medium Neutral Citation: Williams v Hunter New England Local Health [2021] NSWSC 941 Hearing dates: 30 July 2021 Date of orders: 30 July 2021 Decision date: 30 July 2021 Jurisdiction: Common Law Before: Harrison J Decision: (1) Grant leave to the plaintiff within 28 days to file and serve a further amended statement of claim. (2) Note that the plaintiff proposes to rely only upon the reports of Dr Michael O'Connor in his area of medical specialty. (3) Appoint Friday 5 November 2021 for directions. (4) Reserve the costs of the plaintiff's notice of motion filed on 27 April 2021. Catchwords: PLEADINGS – application to amend – no point of principle Legislation Cited: Civil Procedure Act 2005 Category: Procedural rulings Parties: Shenai Williams by her tutor Lisa Williams (Plaintiff) Hunter New England Local Health District (Defendant) Representation: Counsel: M Cranitch SC with A Campbell (Plaintiff) J Sandford (Defendant) Solicitors: Gerard Malouf and Partners (Plaintiff) Hicksons Lawyers (Defendant) File Number(s): 2017/345571 Publication restriction: Nil Judgment 1. HIS HONOUR: Shenai Williams was born in December 1999 in a hospital operated by the defendant. She commenced these proceedings, by her tutor Lisa Williams, in 2017 alleging that the several injuries sustained at the time and the disabilities from which she now suffers were caused by the negligence and breach of duty of those in charge of her antenatal and intrapartum management, her confinement and delivery, in failing to conform to appropriate obstetric standards. 2. By notice of motion filed on 27 April 2021, Ms Williams now seeks the following orders: 1. Leave to rely on the report of Dr Michael O'Connor dated 17 December 2020. 2. Leave to file and serve a Further Amended Statement of Claim dated January 2021 by 26 May 2021. 1. Despite the fact that the proceedings were commenced in November 2017, no date for the hearing of the matter has yet been allocated. 2. The present application would appear to be the manifestation of changing legal perceptions and evolving medical opinions about the causes of Ms Williams' current condition. For example, the case originally advanced on her behalf was premised solely upon the contention that there was foetal distress in labour after 0300 hours on 20 December 1999 but that this went undetected due to allegedly deficient monitoring of the foetal heart rate, in consequence of which it was alleged she was exposed to prolonged intrauterine hypoxia. It was contended in this context that earlier delivery would have resulted in a far better outcome. On the basis of a case framed in that way, the parties exchanged expert opinion and proceeded to mediation, on 22 August 2019. 3. By her amended statement of claim filed on 16 December 2019, the allegation that Ms Williams was exposed to prolonged intrauterine hypoxia was abandoned. Instead, a new case directed to the quality of her resuscitation was advanced, alleging that Ms Williams' disabilities would have been prevented by earlier resuscitative efforts. On the basis of the case advanced in the amended statement of claim, the parties exchanged further expert opinion and proceeded to a second mediation, on 20 November 2020. 4. The current application concerns Ms Williams' proposal to amend the pleadings in the manner set out in a proposed further amended statement of claim served on 18 January 2021. That document contains a series of new allegations extending to the adequacy of antenatal care provided to Ms Williams' mother, the decision documented in the course of an antenatal visit on 17 December 1999 to schedule an induction on Sunday 19 December 1999, and, with respect to the management of the episode of shoulder dystocia in labour, the adequacy and appropriateness of decisions concerning her delivery. 5. The defendant opposes the relief sought by Ms Williams. 6. Mr Cranitch SC, who with Mr Campbell appears for Ms Williams, indicated during the course of argument that he no longer pressed the application to rely upon both Dr O'Connor and Dr Schmidt, and was content only to rely upon the expert opinions of Dr O'Connor. The issue of the appropriateness or otherwise of Ms Williams relying on both specialists therefore ceased to be controversial. 7. Ms Sandford, who appears for the defendant, articulated an extensive series of criticisms directed to the form and adequacy of the proposed further amended pleading. Mr Cranitch indicated that these criticisms could be accommodated and dealt with in any further version of the current statement of claim in the event that leave were granted to amend it. 8. The principal area of dispute between the parties centred upon whether Ms Williams should be permitted at this stage of the proceedings to reformulate her claim in any event. In this respect it is appropriate to observe that the proceedings were not commenced until approximately 18 years after the events that give rise to the claim. Difficulties associated with the availability and recollections of witnesses to events that long ago, and the discovery and analysis of supporting documentation, necessarily affect the ability of both Ms Williams and the defendant to manage this litigation in an ordered fashion. 9. As is well known, the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Parties commencing and defending proceedings in my experience usually attempt to conduct litigation having regard to the overriding purpose and to direct their efforts to identifying and litigating only those real issues. It is also not uncommon, particularly in cases involving complex medical issues about which experts have different opinions, for cases to evolve over time in the process of identifying and refining those issues. What may appear to be an appropriate allegation at one point of such an investigation may turn out on closer inspection to have been misguided. It is no less the obligation of a party to abandon a futile argument as it is to promote the best case available. 10. Ms Williams' birth was complicated by the existence of her shoulder dystocia. Her delivery was delayed. She required extensive efforts to resuscitate her. At some stage, yet to be determined, Ms Williams suffered an hypoxic ischaemic insult. That could have occurred antenatally or during the extended period of efforts to resuscitate her. As the defendant's submissions have so clearly established, several competing opinions about these events have been exchanged and relied upon so far. 11. However, the prospect that these proceedings will be heard any earlier than some time next year is low. The proposed amendments to the pleadings do not in my view expose the defendant to the risk of prejudice that was not otherwise likely having regard to the passage of time between 1999 and 2017. As presently advised, Ms Williams' case does not appear to turn upon a contest between competing versions of particular conversations or a dispute about facts to the resolution of which dead or unavailable witnesses might have been expected to contribute. On the contrary, the central issues in the proceedings will turn upon whether what is objectively known to have occurred supports Ms Williams' allegation that her mother, and she in turn, were not respectively afforded an appropriate standard of care. The resolution of the proceedings will also depend upon the acceptance or rejection of competing professional opinions on causation, which at this stage appear to me to be based upon facts about which there is no substantial dispute. 12. Dr Hartman, who has provided expert written opinions supportive of the defendant, has nevertheless suggested in his 3 July 2018 report that, "without doubt, the outcome in this case was tragic". Doing the best I can, it seems to me that this further proposal to amend the statement of claim is unfortunate but is no more or less than an obvious and commendable attempt to ensure that disposition of Ms Williams' complaints occurs in a setting that brings forth the adjudication of the real issues in dispute. Although it is no longer the most significant factor for consideration in this context, I am also satisfied, notwithstanding Ms Sandford's meticulous and helpful submissions on the point to the contrary, that the defendant will suffer no prejudice if the pleadings are amended as anticipated. 13. In these circumstances, I propose the following orders: 1. Grant leave to the plaintiff within 28 days to file and serve a further amended statement of claim. 2. Note that the plaintiff proposes to rely only upon the reports of Dr Michael O'Connor in his area of medical specialty. 3. Appoint Friday 5 November 2021 for directions. 4. Reserve the costs of the plaintiff's notice of motion filed on 27 April 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2021