Supreme Court New South Wales Medium Neutral Citation: Vonhoff v Hillier [2023] NSWSC 1178 Hearing dates: 15 August 2023 Date of orders: 29 September 2023 Decision date: 29 September 2023 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) Leave is granted to the plaintiff to rely upon his proposed further amended statement of claim (noting that the allegations of trespass and battery at [22] of the PFASC are no longer relied upon and are deleted). (2) The further amended statement of claim is to be filed and served within 14 days. (3) The plaintiffs are to pay the defendant's costs of his notice of motion filed 26 September 2022, including the costs thrown away by the amendments. Catchwords: Proposed further amended statement of claim – leave granted – doctor's reports – clinical notes – medico-legal reports – negligence – injustice – delay – prejudice – plaintiff to pay costs of amendments – withdrawal of claim in trespass, battery and exemplary and aggravated damages. Legislation Cited: Limitation Act 1969 (NSW) ss 50C, 50D and 62A Civil Procedure Act 2005 (NSW) ss 56, 58, 59, 60, 64 and 65 Uniform Civil Procedure Rules 2005 (NSW) r 2.1 Civil Liability Act 2002 (NSW) s 50 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Texts Cited: Harold Luntz and Sirko Harder, Luntz Assessment of Damages for Personal Injury and Death (2021, 5th ed, LexisNexis) Category: Procedural rulings Parties: Peter Vonhoff (Plaintiff) Dr Terence Hillier (Defendant) Representation: Counsel: J. Hillier (Plaintiff) K Burke (Defendant) Solicitors: Commins Hendriks Pty Ltd (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2020/300906 JUDGMENT 1. By notice of motion filed 26 September 2023, "the plaintiff [seeks] leave to file and serve a proposed further amended statement of claim ('PFASC'). 2. The plaintiff is Peter Vonhoff. The defendant is Dr Terence Hillier. The plaintiff was represented by J. Hillier of counsel. The defendant was represented by K. Burke of counsel. The parties relied on a Court Book marked Exhibit A ('Ex A'). The defendants oppose the order sought. 3. The plaintiff relies upon the affidavits of Tonya Teresa Longmore dated 26 September 2023 and 14 August 2023 ('Ex C'). 4. On 20 October 2020, the originating statement of claim was filed. On 20 April 2021, by consent the plaintiff filed an amended statement of claim, ('ASC') on 20 April 2021. In both the statement of claim and amended statement of claim the plaintiff seeks damages arising from allegations of negligence related to an anterolateral L5/S1 intervertebral disc excision, with Maverick disc arthroplasty surgery performed by the defendant on 2 March 2006 ('2006 surgery'). 5. The proposed further amended statement of claim pleads a further allegation of negligence arising from posterior instrumented fusion at L5/S1 surgery performed on 14 May 2010 ('2010 surgery'); 6. The defendant's defence to the ASC pleads the time bar pursuant to sections 50C and 50D of the Limitation Act 1969 (NSW) and also pleads that the whole claim is statute barred and not maintainable. On this application, the defendant submitted that although this issue is not be determined here, it should be taken into consideration as a discretionary matter when deciding whether or not leave should be granted to amend the ASC and the limitation is one to be determined at trial. 7. The proposed further amendments, primarily plead a further cause of action, namely allegations grounded in negligence with respect to the 2010 surgery. These amendments are set out with double underlining in the PFASC. 8. At the hearing, the plaintiff (correctly) withdrew its allegations of trespass, battery and exemplary and aggravated damages that were set out at [22A] to [22H] of the PFASC. The law 1. The plaintiff relies on the court's discretionary power pursuant to sections 64 and 65 of the Civil Procedure Act 2005 (NSW) ('CPA'). It is accepted the court also has a general discretionary power pursuant to rule 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') for the purposes of granting leave to amend documents, including pleadings. 2. Section 64 of the CPA reads: 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the court may order— (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. … 65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4) (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1) (b), amend the originating process so as— (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings. 1. Rule 2.1 of the UCPR reads: 2.1 Directions and orders (cf SCR Part 26, rule 1) The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 1. Sections 58 to 60 of the CPA are also applicable. The plaintiff's submissions 1. The defendant has not served any evidence on the motion which on the face of it suggests that the defendant is in a position to meet the amendments. 2. After the proceedings were commenced and by subpoena the plaintiff obtained the defendant's clinical notes. These notes were said by the defendant himself to have been unavailable prior to the time the plaintiff sought to commence proceedings and were only able to be obtained by the plaintiff via subpoena after proceedings were commenced. The provision of the defendant's clinical notes gave rise to the plaintiff seeking to amend the pleadings and an ASC was filed by consent. The plaintiff had not completed service of his primary expert evidence. 3. On 2 December 2021 the Court ordered a mediation by consent to take place by 22 April 2022.The mediation was postponed because the defendant had yet to complete service of his expert evidence. On 7 July 2022 the plaintiff served a supplementary report of liability expert Dr Alan Hopcroft, general surgeon (orthopaedics) dated 22 June 2023. 4. Prior to the mediation the defendant was put on notice that the plaintiff wished to amend the pleadings to include the second surgery. The matter was ultimately mediated on 12 August 2022. The mediation was unsuccessful. These proceedings do not yet have a hearing date. 5. On 15 August 2022, 3 days after the mediation and as foreshadowed. The plaintiff circulated the PFASC, so there can be no suggestion of any delay by the plaintiff in amending. Nor can there be any suggestion of delay in the plaintiff bringing the motion. 6. When faced with an application to amend, the Court is required to conduct a weighing exercise and determine the application in accordance with the dictates of justice (s 58 of the CPA), including the just resolution of the real issues in the proceedings: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [24], [98], [102]-[103] (s 56 of the CPA). 7. The plaintiff submits the second surgery gives rise to a real question and that the overriding purpose and the dictates of justice warrant the grant of leave to file the PFASC. The plaintiff's injustice 1. Finally, the plaintiff would suffer real injustice if he was to be denied a hearing on the 'real issues' in the proceeding namely the second surgery. 2. Section 64(3) of the CPA provides that the cause of action in this case in respect to the 2010 surgery commenced on the date the amendment was made i.e. in granting leave, the cause of action is not said to apply retrospectively. 3. There is no requirement by the Court in the exercise of the discretion pursuant to s 64 of the CPA to consider or determine any limitation issues in advance. Issues of limitation would be a matter for any defence to the amended pleading as raised, any 'Reply' joining issue, and ultimately for final hearing including any application made per s 62A of the Limitation Act 1969 (NSW). Supportive Evidence 1. The reports of Drs Hopcroft, Drnda and Atkinson deal with the second surgery and support the amendments pleaded in relation to the 2010 surgery. No prejudice to defendant 1. On 27 June 2023 the Court granted the defendant an indulgence when it extended time for the defendant to serve the expert liability report of Dr Kam, neurosurgeon. Dr Kam provides an opinion in respect to s 5O of the CLA in respect to both surgeries at page 26 of his report. This demonstrates the defendant is in a position to meet the amendments contained in the PFASC as they relate to the second surgery. The defendant has not established any undue prejudice should leave to file and serve the PFASC be granted. 2. The Court could not accept there is any undue prejudice to the defendant in circumstances where there is no affidavit deposing to these matters (and when there was an opportunity afforded to the defendant to do so, and that opportunity was not taken), and further the defendant has served expert evidence in the matter as to liability. It can be readily inferred that there is no undue prejudice. 3. The plaintiff maintains the second surgery involve real questions in the plaintiff's case and that the overriding purpose and the dictates of justice warrant the grant of leave to file the PFASC. 4. Finally, the plaintiff maintains he would suffer real injustice if he was to be denied a hearing on the 'real issues' in the proceeding namely the second surgery. The defendant's submissions 1. The proposed added negligence cause of action for the 2010 surgery (being statute barred), may complicate the plaintiff's application. Pursuant to section 64 of the CPA. What is problematic in this matter is that at present, the issue of discoverability of the cause of action has not been determined, as the plaintiff has not filed and served an application seeking leave to extent the limitation period, so it is an unknown as to when the three-year post discoverability period expires or alternatively, commences to run. 2. The consequential issue goes to futility and appropriateness to grant leave to permit the addition of a cause of action which is statute barred, where a limitation period can be pleaded in answer, as pursuant to section 64(3) the added cause of action that arises after the commencement of proceedings (in this case it is the defendant's position that the cause of action was available at the time of the originating statement of claim) the relation back doctrine does not apply, rather, in this instance the proposed additional cause of action was already statute barred and not maintainable by the date the original statement of claim was filed. 3. While the power does exist for the pleadings to be amended, pursuant to section 65(2) of the CPA, there is a degree of constraint through the imposition of an obligation that "all necessary amendments" are to be made, with sub-section (3), being directed towards causes of actions. There is also under section 64(2) of the CPA, a requirement to exercise the discretion subject to the provisions of section 58 of the CPA and have regard to sections 56 and 57. 4. In applying the overriding purpose provisions, and noting particularly section 58, it is not apparent, when consideration is given to the proposed amendments, the Letters of Instruction to the plaintiff's liability experts, the opinions expressed by the plaintiffs experts, and the failure to make the proposed amendments at the time the PFASC was amended; and failing to provide an explanation for the delay in doing so, that it is in the interests of justice to grant leave to the plaintiff to amend the PFASC. The defendant's response to the plaintiff's submissions 1. The fact that the defendant has not served any evidence to show he cannot meet the amendments is not the test for the granting of the leave being sought. Rather, it is for the plaintiff to demonstrate that the proposed amendments fall within the descriptive of: "all necessary amendments are to be made". As there is no evidence within the body of the exhibits of Ms Longmore's affidavit to support the proposed amendments, the plaintiff has not demonstrated: "all necessary amendments are to be made". 2. Further the issue of the three-year post discoverability limitation period remains an obstacle if the three-year post discoverability limitation period has expired. Until this issue has been determined, it is not in the interest of justice to grant the leave sought. 3. Without expert evidence to demonstrate a scintilla of expert opinion supporting the negligent allegations pertaining to the 2010 surgery, as well as an absence of material facts and circumstances in the Letters of Instructions to the plaintiff's experts setting out the facts relied upon or assumed giving rise to the alleged negligent 2010 surgery, merely seeking to amend to plead negligence with respect to the 2010 surgery. 4. The plaintiff is submitting that the delay in proposing amendments to further amend the statement of claim arises due to late provision of clinical records by the defendant, the defendant disputes such an issue. 5. The defendant disputes the plaintiff's contention that no delay has occurred. There has been no material facts and circumstances provided to the plaintiff's experts or pleaded that is factually additional to the material facts and circumstances pleaded at the time of the original statement of claim or the ASC. 6. Also, there are no allegations of material facts of circumstances contained within the letters of instructions or the expert reports, within the body of the exhibits replied upon by Ms Longmore ('the plaintiff's solicitor'). 7. Moreover, there is no explanation given within the support affidavit explaining the actual basis for the proposed amendments. 8. Contrary to the plaintiff's submission, Dr Kam does not express an opinion on section 5O of the Civil Liability Act with respect to the 2010 surgery. His opinion, on page 25 and 26 has been taken totally out of context. 9. As to whether the defendant suffers prejudice, it is readily apparent from the information provided to the plaintiff's experts that the "clinical records of the Albury Wodonga Hospital and of Dr Hillier have been destroyed and copies no longer available". 10. And so too, the information provided to the defendant's expert, Dr Dan, that Dr Hillier's records are not complete, Dr Hillier's physical file was destroyed which included his handwritten notes and the records of Dr Hillier which have been provided are the partial electronic records of his file to which has been added correspondence to and from other practitioners, produced by those practitioners under subpoena. 11. The lack of records, particularly, clinical notes or handwritten notes of consultations where discussions occur as to the nature of risks, consent obtained and the lack of hospital records which invariably hold the consent documents, are inferentially all potential evidence to assist the defendant in defending any consent issue. The lack of those records demonstrate prejudice that cannot be cured. It was a prejudice that existed at the time the plaintiff filed the original statement of claim in 2020 and continues to be a prejudice, as the circumstances as to the lack of records remains the same. Resolution 1. The defendant was granted an indulgence when he was permitted to serve the report of Dr Andrew Kam, a neurosurgeon dated 16 December 2022. 2. Dr Kam is a qualified Neurosurgeon, Spine-Fellowship trained and still actively practicing, since 2001. He practices in all aspects of non-instrumented and instrumented spinal surgery for cervical, thoracic and lumbar regions, and has a strong interest in disc arthroplasty, robotic spinal surgery and minimally invasive anterior/lateral and posterior techniques in spinal surgery. 3. On page 25 of his report at 'b', he was asked and he answered: "b. Please consider the particulars of negligence alleged against Dr Hillier at paragraph 18 of the amended statement of claim, and consider with the assumptions contained within Annexure "B". In your opinion, do you consider that the treatment Dr Hillier provided to the plaintiff would be accepted as competent professional practice by his peers in 2006 to 2010. Please explain the basis of your opinion. In answering this question, the fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied upon for the purposes of this question. We note that peer professional opinion does not have to be universally accepted to be considered widely accepted. Based on the documentation from the information provided, I am of the opinion that Dr Hillier's treatment of the plaintiff is an accepted by his peers as an example practice of a competent professional practice from 2006-2010. The option of surgery was discussed 4 months after the onset of symptoms, after a period of physiotherapy that the plaintiff participated in, which failed to improve the plaintiff's symptoms. Discussions regarding surgery, the reasons to consider one surgery over the other was also appropriate and was documented in his letters. The 4 patient information pamphlets that were provided to the patient would give the patient further information about the potential operations that could be considered and the potential outcomes of each individual surgery. One of the documents is a pamphlet published by the Australian Association for Orthopaedic surgeons. The other 2 were created by Dr Hillier and the last pamphlet was generated by the medical device company for patient education. The option to proceed with surgery at the discretion of both the patient and the surgeon and the choice of surgery is at the discretion of the surgeon with some input from the patient, especially when there are a number of choices to consider. I am of the opinion that Dr Hillier acted appropriately and professionally and would be seen as a peer accepted standard of care and how to conduct patient education as part of the consent process with how much information is given to the patient before embarking on surgery." 1. At 'd', he was asked and answered: "d. Are there any other injuries or disabilities which you consider have caused or contributed materially, or most likely to have affected the plaintiff's outcome from the treatment provided by Dr Hillier? To the best of my knowledge, based on the documents provided, no other injuries or disabilities were suffered by the plaintiff's outcome from the surgery provided by Dr Hillier. The ongoing back pain after a successful operation is a known outcome and can be as high as 15-20% in peer review literature. The post-operative pain that the plaintiff suffered affected his ability to return to his pre-injury duties as a baggage handler, lifting more than 20kg. It did not however impact on his ability to work in other non-lifting occupations as shown by the other employment positions that he had obtained after leaving the baggage handling role that he had at the airport. If he was significantly injured and disabled by the surgery of 2006, he would not have been able to return to gainful employment with reduced lifting capacity the way he did after surgery, and he would not be likely to ascend up the waterslide: and slide down on a ring-shaped device." 1. Dr Kam's report refers to the period between 2006 and 2010, the latter being the date of the second surgery. 2. While Dr Hillier's records have been destroyed, it seems that a large portion of them have been recreated from other sources. Dr Kam was able to set out an account of the advice given to the plaintiff including the supply of specified pamphlets for at least the 2006 operation referred to in the answer to question 'b' reproduced earlier in this judgment. I accept that Dr Kam has not covered the 2010 operation in much detail. The plaintiff's medico-legal reports do refer to the 2010 operation and Dr Kam can be asked specifically about the 2010 operation. 3. The amendments in the PFASC involve the real questions in the plaintiff's case. There was a short delay between when the plaintiff advised the defendant that it intended to raise the 2010 surgery. Three days before the mediation took place in August 2023. Taking these matters all into account, justice dictates that the plaintiff be permitted to file the PFASC (as amended). Costs 1. In the exercise of my discretion, leave is granted to the plaintiff to file the PFASC. The plaintiff accepts that it should pay the costs of the amendments contained in the PFASC. THE COURT ORDERS THAT: 1. Leave is granted to the plaintiff to rely upon his proposed further amended statement of claim (noting that the allegations of trespass and battery at [22] of the PFASC are no longer relied upon and are deleted). 2. The further amended statement of claim is to be filed and served within 14 days. 3. The plaintiffs are to pay the defendant's costs of his notice of motion filed 26 September 2022, including the costs thrown away by the amendments. ********** 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: 29 September 2023