Supreme Court New South Wales Medium Neutral Citation: Morrison v South Eastern Sydney Local Health District (known as Sutherland Hospital) [2024] NSWSC 651 Hearing dates: 14 May 2024 Date of orders: 31 May 2024 Decision date: 31 May 2024 Jurisdiction: Common Law Before: Harrison CJ at CL Decision: Proceedings dismissed with costs Catchwords: PRACTICE & PROCEDURE – pleadings – summary dismissal – whether statement of claim discloses a reasonable cause of action – where previous proceedings between the same parties litigated to judgment – whether current proceedings an abuse of process LIMITATION OF ACTIONS – whether proceedings commenced in 2023 relating to tort or contract – allegations arising from events in 1977 barred by statute Legislation Cited: Civil Procedure Act 2005 (NSW), s 67 Limitation Act 1969 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1) Cases Cited: Morrison v Wong & Anor [2001] NSWSC 304 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Category: Procedural rulings Parties: Derek Morrison (Plaintiff) South Eastern Sydney Local Health District (known as Sutherland Hospital) (Defendant) Representation: Counsel: T Berberian (Defendant) Solicitors: Hicksons (Defendant) File Number(s): 2022/381902 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: Derek Morrison commenced these proceedings by statement of claim filed on 28 November 2022. He filed an amended statement of claim on 5 June 2023. Although the latter document arguably suffers from a series of defects, to which it will be necessary to return, it is plain enough that Mr Morrison's complaints include that he has suffered loss and damage as the result of a myelogram procedure performed on him at the Sutherland Hospital on 3 May 1977. Details of the facts and circumstances of what occurred on that day are conveniently recorded in the judgment of Sperling J, who heard and determined Mr Morrison's claim for damages arising out of the very same procedure, commenced as long ago as 1993. The proceedings ran for a total of 24 days between 29 January and 20 March 2001. Mr Morrison was represented by senior and junior counsel. In his characteristically detailed and concise manner, his Honour dismissed Mr Morrison's claim: see Morrison v Wong & Anor [2001] NSWSC 304. 2. The procedure undergone by Mr Morrison in 1977 was performed by Dr Wai Kwan Wong. Mr Morrison now alleges that the defendant is liable to him in damages for breach of a contract with him in permitting what he describes in the amended statement of claim as "an unqualified staff member" to perform the procedure. Mr Morrison also alleges that it was "professional negligence" on the part of the hospital to allow Dr Wong to operate upon him in the circumstances. I understand Mr Morrison to contend that the hospital breached an implied term of its contract with him by allegedly failing to inform him that Dr Wong was "not qualified". It will be necessary to return to the meaning of that expression in due course. 3. By its notice of motion filed on 19 December 2023, the South Eastern Local Health District (known as Sutherland Hospital) seeks orders pursuant to UCPR 14.28(1) that the amended statement of claim be struck out or that the proceedings be dismissed pursuant to UCPR 13.4(1). The defendant seeks an alternative order pursuant to s 67 of the Civil Procedure Act 2005 that the proceedings be permanently stayed, either because the claim in contract is barred by operation of s 14 of the Limitation Act 1969 or that Mr Morrison is estopped from commencing or continuing the proceedings in accordance with the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 and Henderson v Henderson (1843) 3 Hare 100; 67 ER 313. 4. In support of its motion, the defendant relies upon the affidavit of Mark John Quadrio affirmed on 19 December 2023, which was read without objection. Mr Morrison has tendered no evidence in response to the present application. The earlier proceedings 1. On 3 May 1977, Mr Morrison underwent a myelogram procedure under the hand of Dr Wong at the Sutherland Hospital. In 1993, he commenced proceedings claiming damages for breach of duty and breach of contract against both Dr Wong and the hospital. In the course of his judgment at [126], his Honour Sperling J said this: "The issues [126] The plaintiff's case is that he has suffered increasing pain and disability since May 1977, in consequence of the alleged development of arachnoiditis following the myelogram. The issues in the case, as settled with counsel in the course of the trial, are as follows. (The reference to a 'cannula' is what was referred to in the evidence as the 'needle' through which the Myodil was introduced.) Subject to onus and standard of proof: 1. Did the plaintiff contract arachnoiditis? 2. If so, was the condition caused or materially contributed to by breach of duty (whether at common law or in contract) on the part of the defendants or either of them, in any one or more of the following respects: (a) (i) failing to inform the plaintiff, before the myelogram, of a risk of contracting arachnoiditis as a result of the myelogram, (ii) failing to inform the plaintiff before the myelogram of a risk arising out of failing to remove Myodil at the end of the procedure and of any risks associated with attempts subsequently made, (b) failing to remove all or substantially all of the Myodil from the plaintiff's spine at the conclusion of the myelogram (i) by leaving the canula in place throughout the procedure, or (ii) if the canula was properly removed during the procedure, by reinserting the canula at the conclusion of the procedure, (c) at the conclusion of the procedure (i) failing to inform the plaintiff that the Myodil had not been removed, (ii) failing to inform the plaintiff that he had not followed his usual procedure, (iii) failing to inform the plaintiff of a risk of contracting arachnoiditis if the Myodil was not removed promptly, (iv) failing to advise the plaintiff to have and explaining [sic] to him the option of having the Myodil removed as promptly as was practicable, and / or (v) failing to communicate with plaintiff's clinical team, by a note in the plaintiff's clinical records and / or by the radiological report or otherwise, informing them that the Myodil had not been removed and advising them that the Myodil should be removed as soon as practicable explaining to them the option of having it removed. 3. If the plaintiff contracted arachnoiditis, (a) what has been the nature and extent of the condition, (b) has the condition been symptomatic, and (c) what has been the consequence of the condition for the plaintiff in terms of pain and disability?" [My emphasis] 1. His Honour continued at [127] of his judgment saying this: "[127] Although the plaintiff was a private patient at the hospital, no alternative basis for liability was said to arise in contract involving any issue different from those arising in tort." [My emphasis] 1. It will be apparent that it was no part of Mr Morrison's case in the earlier proceedings that the hospital somehow held out Dr Wong as having qualifications to perform the procedure that he did not possess or that it somehow breached either its duty or the terms of its contract with him by not specifying the precise nature and extent of his qualifications or by inducing Mr Morrison to believe or to understand that Dr Wong possessed qualifications that he did not have. Indeed, Sperling J described Dr Wong's qualifications in the course of his judgment in the following terms: "Dr Wong [10] Dr Wong obtained his undergraduate medical qualifications in Singapore in 1967. Thereafter, he worked as a trainee radiologist at the University of Malaysia Hospital at Kuala Lumpur from 1968 to 1970. In this position, he performed about ten myelograms, the first five or six under supervision and the rest without supervision. He then went to England for further specialist training. He was in London between 1970 and 1972, working at the Hospital for Nervous Diseases, Queens Square, Maida Vale Hospital and the Hospital for Sick Children. He observed about ten myelograms during his stay. He obtained a post-graduate diploma in radiology in 1972, thereby qualifying as a specialist radiologist. [11] Dr Wong returned to Malaysia and remained in Kuala Lumpur from 1972 until 1976, apart from six months at Concord Repatriation Hospital in New South Wales during 1975. While in Kuala Lumpur, he was employed as a lecturer at the University of Malaysia and as a specialist radiologist at the University Hospital. He performed 300 - 400 myelograms at the University Hospital during that time. [12] He returned to Australia in 1976 and took up a position at Sutherland Hospital as the sole staff radiologist, a position he occupied for six months before becoming Director of Radiology there. It was either shortly before or shortly after his elevation to Director of Radiology that he saw the plaintiff in May 1977." 1. His Honour also set out in detail at [44] – [50] Dr Wong's training, experience and usual practice concerning aspiration of Myodil. That included the fact that Dr Wong had worked as a trainee radiologist in Kuala Lumpur from as early as "the late 1960s" and that he "observed the senior radiologists at the Hospital for Nervous Diseases, Queens Square, Maida Vale Hospital and the Hospital for Sick Children perform myelograms" while in London in the period from 1970 to 1972. 2. Mr Morrison did not take issue before Sperling J with Dr Wong's qualifications, experience or expertise. That is so notwithstanding the terms of two letters written to Mr Morrison in July and October 1977 by Professor Michael Sage from The Royal Australian College of Radiologists. The terms of those letters are presently relevant and should be noted in full as follows: "22nd July 1997 Mr Derek Morrison [ADDRESS REDACTED] Dear Mr Morrison, I refer to your letter of 16th June 1997 addressed to the Chief Executive Officer of the Royal Australasian College of Radiologists. The Chief Executive Officer of the RACR has confirmed that Dr Wai Kwan Wong, MBBS (Singapore), DMRD (London), is not currently a Fellow of the Royal Australasian College of Radiologists. In particular, as far as he has been able to establish from College records, Dr Wong has never been a Fellow or Member of the RACR. With regard to Dr Wong's publications, the only other article to which Dr Wong has contributed and which has been published in the RACR Journal, appeared in the September 1975 edition of 'Australasian Radiology' under the title of 'Ruptured Mycotic Intracranial Aneurysm'. As far as the Royal Australasian College of Radiologists is concerned, an individual medical practitioner holding a DMRD does not have the same professional recognition as the FRACR. The DMRD is also not listed by the National Specialist Qualification Advisory Committee of Australia as an appropriate postgraduate qualification for recognition as a specialist in radiology. Yours sincerely… …. 22nd October 1997 Mr Derek Morrison [ADDRESS REDACTED] Dear Mr Morrison, I refer to your letter of the 9th October 1997 asking for a response by the RACR Education Board to three questions. I will address each question as listed by you. Question 1: In 1997 was an Overseas Trained Medical Practitioner (MBBS Singapore) holding a Diploma in Medical Radio-Diagnosis 'only' recognised by the RACR Education Board as a Specialist in Diagnostic Radiology here in Australia? Answer: No. Question 2: In 1997 was an Overseas Trained Medical Practitioner (MBBS Singapore) holding a Diploma in Medical Radio-Diagnosis 'only' recognised by the RACR Education Board as an appropriate postgraduate qualification for recognition as a Specialist (Staff Specialist) in a public hospital in NSW? Answer: No. Question 3: In 1997 was an Overseas Trained Medical Practitioner (MBBS Singapore) holding a Diploma in Medical Radio-Diagnosis 'only' recognised by the RACR Education Board as an appropriate postgraduate qualification for recognition as being fully trained to hold a position as Director of Diagnostic Radiology in a public hospital in NSW? Answer: No. Yours sincerely…" 1. It is clear from the terms of these letters, upon which Mr Morrison places considerable emphasis, that Professor Sage was not indicating or suggesting that Dr Wong did not have medical or surgical qualifications. Indeed, his qualifications as "MBBS (Singapore)" are specifically referred to in both letters. The burden of the letters is that Dr Wong was not considered by the college to have a post-graduate qualification for recognition as a specialist in radiology in Australia and was not a member or fellow of the college. The letters indicated that Dr Wong was not the holder of any postgraduate qualification that the college recognised as being fully trained to hold a position as Director of Diagnostic Radiology in a public hospital in New South Wales. 2. The defendants contend in these circumstances that Mr Morrison's claims in the present proceedings seek to agitate matters that ought properly to have been raised in the proceedings before Sperling J. Mr Morrison had been in possession of the information upon which he now relies since late 1997, the earlier proceedings having been commenced in 1993 and having concluded in 2001. No appeal from Sperling J's decision was ever prosecuted to finality. 3. Having considered his Honour's careful and detailed reasons, it is plain that Mr Morrison now seeks to bring against the hospital the very same claim that his Honour dismissed in 2001. His case was that he contracted arachnoiditis at or following the myelogram procedure performed by Dr Wong on 3 May 1977 at Sutherland Hospital. Mr Morrison did not allege in the proceedings, as he now wishes to contend, that he was misled by some representation by the hospital that Dr Wong had qualifications that he did not have. That is so even though Mr Morrison was in possession of the letters that he now asserts cast doubt upon Dr Wong's training or expertise. The extent of Dr Wong's qualifications was intimately connected with his performance of the procedure. 4. The evidence in the earlier proceedings dealt with the issue, among others, of whether aspiration of Myodil was or was not appropriate practice. In Mr Morrison's case, it would appear that Myodil remained in his sub-arachnoid space at the conclusion of the procedure. Even if that were not thought to have been an issue related to Dr Wong's qualifications, they are so intimately related to the issue of whether he performed the procedure properly, or in accordance with proper practice at the time, and to Mr Morrison's claim that he was injured by the procedure, that he should have brought his complaints forward as part of these earlier proceedings. It is in my opinion no answer to this proposition to say that Mr Morrison now wishes to cast his complaints as a breach of contract by the hospital or that the hospital misled him into a false belief that Dr Wong was qualified to hold a position as Director of Diagnostic Radiology in a public hospital in New South Wales. 5. Mr Morrison has also raised a slightly different point. I understand him also to contend that the hospital somehow reassured him, in the face of the letters from the college, that the letters were incorrect and that Dr Wong was appropriately described in the hospital's public records. Even if that contention were to be accepted at face value, doubt about Dr Wong's qualifications should in any event have been advanced in the earlier proceedings, if only to the extent that Mr Morrison raised his concerns and that the hospital allayed them in the way about which he now complains. 6. In my opinion, the present claim is an abuse of process and is, among other things, liable to be stayed permanently. 7. The defendant has responded to Mr Morrison's claim by relying as well upon s 14 of the Limitation Act 1969. Mr Morrison has filed no evidence and has made no convincing submissions as to why his claim is not statute barred. Any contention to the contrary is plainly unarguable. 8. As already discussed, the amended statement of claim asserts the singular proposition that because Dr Wong was not a member or a fellow of the Royal Australasian College of Radiologists, it was wrongful, whether in breach of its duty in tort or in contract, to employ Dr Wong, or to permit him, to perform procedures of the kind undergone by Mr Morrison. Dr Wong's medical credentials and experience were extensive, were set out in detail in Sperling J's judgment and were significantly not the subject of any complaint by Mr Morrison at the time. The proposition that the hospital was liable to Mr Morrison in the circumstances by reason only of the fact that he was not then a member or fellow of the relevant college of specialists entirely misconceives the hospital's obligations. In the circumstances, the amended statement of claim does not disclose a reasonable cause of action. 9. Finally, the form of the amended statement of claim makes it clear that it was not prepared with legal assistance. That fact alone is of no consequence, save to the extent that the document otherwise fails to comply with the rules. For reasons that will become obvious, I do not consider that it is necessary to consider whether the pleading should be struck out. Despite its inadequacies, the defendant was able, no doubt with an understanding provided by the history of Mr Morrison's allegations, to formulate a defence to the claim. 10. In my opinion, the present proceedings are an undisguised attempt by Mr Morrison to relitigate the earlier proceedings formulated as a claim that he was misled by the hospital concerning the details of Dr Wong's professional memberships. Even accepting that somewhat charitable characterisation of his claim, it is difficult to see how there could be any causal connection between the allegation and any loss suffered by Mr Morrison. In simple terms, the present proceedings raise no issues that were not alive and litigated previously or that should have been. All matters of which Mr Morrison now complains concerning the consequences for him of his myelogram in 1977 should have been litigated then. It is an abuse of process for him to attempt either to relitigate the earlier proceedings or agitate matters that were or should have been central to the earlier proceedings. Mr Morrison cannot be permitted to do so now. 11. At the conclusion of the hearing before me, I offered Mr Morrison the opportunity, if he were so inclined, to furnish any additional submissions he may wish to rely upon in writing at a time suitable to him. In the events that have occurred, Mr Morrison has done so. His further submissions were filed on 27 May 2024. I have considered them in detail, as well as the attachments. 12. Part of Mr Morrison's submissions are directed to his claim that he was misled by the hospital in the earlier proceedings, or by its insurer, into believing that Dr Wong had qualifications that he did not possess. At paragraph nine of these further submissions, Mr Morrison says this: "9. It was only when I came across those 2 letters and the attached page taken from the 1979 Annual Report of Sutherland Hospital in 2021 when looking for evidence regarding my claim of multiple perjured evidence given in that 2001. However while I had moved on, the multiple alleged perjured evidence given in court in 2001 'kept eating away at me', so I returned to these boxes for while I was looking for conflicting evidence given back then in 2001 and in the 8 years of Preparation not these forgotten letters and the 1979 attachment that I was soon to come across." 1. As far as I am able to discern, the letters to which Mr Morrison is referring are letters that he says were sent to him by the hospital or its insurer sometime prior to the conclusion of the proceedings before Sperling J. He has certainly been in possession of them for at least 20 years. Mr Morrison contends that these letters contained an assurance, which he accepted, that Dr Wong had certain qualifications as a specialist radiologist which Mr Morrison now disputes. I take Mr Morrison to contend that he would have conducted the proceedings before Sperling J in a different way if he had not been given false comfort by these letters which he accepted at face value and upon which he relied. 2. Despite Mr Morrison's extensive reference to the letters in his written submissions, as well as in his earlier oral submissions to me, these letters have not been tendered and I have not seen them. That is so notwithstanding that there are several other documents attached to his latest written submissions and the fact that the letters were apparently so significant that Mr Morrison has said in those submissions that "on finding those forgotten letters I shouted out to my support worker there at the time helping me with my research". Mr Morrison says he also said at the time, "look at this", as he was holding out these letters "and the 1979 Sutherland Hospital Annual Report that was attached". In the absence of these letters, it is not possible in these circumstances for me to make any findings or come to any conclusions about their significance or otherwise. 3. Having regard to the foregoing, it follows that the proceedings should be dismissed with costs. ********** 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: 31 May 2024