Gillett v Robinson [2011] NSWSC 863

Supreme Court New South Wales

Medium Neutral Citation: Gillett v Robinson [2011] NSWSC 863 Hearing dates: 1 August 2011 Decision date: 12 August 2011 Before: Harrison J Decision: Plaintiff's application to amend statement of claim and call further medical evidence from Dr Molloy dismissed Catchwords: PROCEDURE - amendment - application to amend statement of claim and to call further medical evidence - application made on first day of hearing - no explanation for delay - where application futile - where medical evidence not supportive of proposed new case in any event - application refused Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Category: Procedural and other rulings Parties: Halina Jain Gillett (Plaintiff) Representation: K Connor SC and M Avenell (Plaintiff) Thomas Mitchell Solicitors (Plaintiff) File Number(s): 2006/267258

Judgment 1HIS HONOUR : The plaintiff has applied to amend her statement of claim and to rely upon an additional medical report in support of her case, which I heard on the first day of the hearing on 1 August 2011. I rejected the application and informed the parties that I would furnish reasons for my decision at a later date. These reasons for judgment are limited to that application. Introduction and background 2The plaintiff was born in October 1985. Her mother's attending obstetrician was Professor Robinson. She sustained an injury to her right shoulder during the delivery, known as Erb's palsy, which was caused by shoulder dystocia. The plaintiff alleges that her injury, and consequent disabilities, resulted from Professor Robinson's negligence or breach of duty. 3The plaintiff commenced these proceedings in 2006. I have been unable to locate the original statement of claim. However, by a notice of motion filed on 17 April 2008 the plaintiff sought to amend the particulars of negligence against Professor Robinson so that they read as follows: (a) Failed to take any or any proper care on the part of the plaintiff. (b) Failed to acknowledge that there was a heightened risk of shoulder dystocia as a result of the condition of the plaintiff's mother and her prior pregnancies. (c) Failed to perform obstetric services associated with the birth process in a proper and professional manner. (d) Failed to exercise due care and skill in the provision of obstetric services subject of the birth process. (e) Failed to undertake a caesarean section on the plaintiff's mother despite requests to do so. (f) Failed to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns. (g) Failed to provide obstetric services with any or any reasonable care. 4Despite the extent of these proposed particulars of negligence in the second amended statement of claim annexed to the notice of motion, the final version of that document, which was filed on 19 June 2008, contained only particulars (e) and (f). They became particulars (a) and (b) in the plaintiff's statement of claim and remained in that form up to the commencement of the hearing of the action before me on 1 August 2011. However, by notice of motion filed on 28 July 2011 the plaintiff sought further to amend the pleadings by adding an additional particular of negligence as follows: (c) Failed to provide information and advice to the plaintiff's mother as to the options for delivery of the plaintiff in light of circumstances attending the mother's three previous pregnancies and this pregnancy. 5The plaintiff sought other relief by this latest notice of motion. Some of this was procedural, dealing with abridgement of time for service and the like, and some of it was substantive. For present purposes the important claims for relief can be reduced to the following: 4. An order under UCPR 31.28(1)(a) and UCPR 2.1 extending time nunc pro tunc for the service of the report of Dr William Molloy, obstetrician, dated 27 July 2011, so that the plaintiff's provision of a copy of the report to the defendant on 27 July 2011 was service in accordance with UCPR 31.28(1). 5. Alternatively...leave be granted to the plaintiff under UCPR 31.28(3) to tender the report of Dr Molloy and to call [him] to give evidence at the hearing despite the plaintiff's non-compliance with UCPR 31.28(1). 6. Leave be granted to the plaintiff under UCPR 31.26(5) to adduce evidence from Dr Molloy at the hearing despite the Joint Experts' Report. 7. Further, if the defendant is not able to deal with the report and evidence of Dr Molloy at the hearing on 1 to 5 August 2011, the hearing of the expert evidence be postponed to a suitable date. 6On 22 October 2008, the Court made an order that Professor Robinson serve any liability evidence upon which he intended to rely by 24 February 2009. In accordance with that order, reports from Dr Robert Lyneham and Dr Andrew Child were served under cover of a letter from Professor Robinson's solicitors dated 20 February 2009. 7On 9 November 2010 Registrar Bradford listed the matter for hearing commencing 1 August 2011 with an estimate of 5 days. He made a final order in accordance with the Practice Note and made an order to enable the expert evidence to be given concurrently. He directed the experts in their respective areas of expertise to confer by 30 March 2011 and to provide a joint report on such matters where they agreed and where they disagreed. He directed that lay statements of evidence be served by 28 February 2011 and that reports from the experts should issue by 22 April 2011. 8A directions hearing took place before the Registrar on 15 February 2011. Orders were made at that time that Professor Robinson forward a list of questions for the experts to the plaintiff for consideration by 22 February 2011 and that the plaintiff advise him of her attitude to the proposed questions by 29 February 2011. A joint conference of experts was ordered to take place on 29 April 2011 and the joint experts' report was to be provided to the Court by 20 May 2011. The matter was listed for further directions on 24 May 2011. 9Professor Robinson's solicitors prepared and forwarded a list of proposed questions to the plaintiff's solicitors, together with a proposed index of documents to be provided to them on 17 February 2011. The accompanying email contained a request that they be informed whether or not the plaintiff was happy with the questions and the list of documents. 10The questions posed for consideration by the joint conference of experts were as follows: 1. Did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent professional practice in 1985, by failing to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns, namely: (a) the birth of the plaintiff's mother's first child, who was delivered by caesarean section following failure to progress as a result of occipito posterior position; and (b) the plaintiff's mother's third child, who was stillborn? 2. Taking into account the plaintiff's mother's prior pregnancy and birthing concerns, did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent practice in 1985, in proceeding to deliver the plaintiff vaginally rather than by caesarean section? 3. Assuming the plaintiff's mother had requested, at the final outpatient antenatal attendance, that a caesarean section be performed, did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent practice in 1985, in proceeding to deliver the plaintiff vaginally rather than by caesarean section? 4. Did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent professional practice in 1985, in proceeding to deliver the plaintiff vaginally rather than by caesarean section, assuming that, one or two weeks prior to the plaintiff's birth the following conversation took place: Plaintiff's mother: "Can I have a Caesar?" Professor Robinson: "Is this baby bigger than the others?" Plaintiff's mother: "I don't know." 11It would seem that, despite considerable further correspondence and telephone calls following up the 17 February 2011 request, no satisfactory or meaningful response to it was ever received by Professor Robinson's solicitors. The plaintiff's solicitor did, however, send an email dated 13 July 2011. Apart from suggesting that the joint conference was not necessary, that email listed a series of issues that were said not to be in dispute and thereafter continued with the following: "As these issues are not in dispute, the issue of whether the defendant was in breach of his duty to the plaintiff will be solely dependant upon whether the explicit evidence of the plaintiff's mother is accepted over the defendant's usual practice evidence. If indeed there is a finding that the request was made by the plaintiff's mother t the antenatal attendance, then there can have been no compliance by the defendant with his express evidence of duty to her as there was no further consultation and/or referral to an alternate obstetrician. The remaining issue would then e causation as to whether the plaintiff's mother would have had a vaginal delivery if she had attended upon another obstetrician to discuss same, in any event. Obviously, the issue of causation is clearly a matter to be determined by the Court by reference to the evidence of the plaintiff's mother, including the measures she required to be undertaken by her prior gynaecologist, whether the comfort attained by the plaintiff's mother from the defendant's response at the antenatal attendance would have been dispelled by further discussion with him and another specialist, the effect of consideration of her pregnancy issues generally by attending upon the alternate specialist, her subjective concerns being exacerbated by discussion of the birth procedure, and so on. Accordingly, paragraphs (3) and (4) of the document entitled "Questions for Obstetric Experts: Breach of Duty" are irrelevant and completely ignore the critical issues to be determined in the proceedings. The issue is simply whether the request was made. If the request was not made, there is no breach of duty by the defendant. If the request was made, there is a failure by the defendant to comply with the extent of his duty of care of the plaintiff's mother, by reason of his own evidence. In relation to paragraphs 1(a) and (b) of the document entitled "Questions for Obstetric Experts: Breach of Duty", to allow the experts to proceed upon an assumption that the prior birthing concerns may be effectively considered by reference to the sparsity of details detailed therein [sic] would be of little benefit, if there was otherwise any relevance in doing so. Also, for the experts to provide expert evidence on such an issue would involve the provision of opinion evidence on the ultimate issue to be determined by the Court, which may only potentially affect the veracity of their evidence on issues of relevance to the proceedings. Any expert opinion as to the defendant's actual conduct, which is unknown by the defendant, would have to be in the context of having a reasonable understanding of the specific knowledge of the defendant in 1985, by reference to consultations with the plaintiff's mother, discussions with the prior obstetrician, perusal of clinical notes and so on. As the defendant has no recollection of the plaintiff's mother or the birth of the plaintiff whatsoever, there is no method available for the experts to properly consider the knowledge of the defendant. Again, this issue is overcome by consideration of the defendant's evidence as to usual practice if a request for a caesarean had been made. There will be extensive costs associated with the experts undertaking the conference on 20 July 2011 with no purpose whatsoever. We understand that there were Consent Orders entered into dated 17 May 2011 anticipating a conference being undertaken by the experts by reference to your correspondence dated 24 February 2011. However, proper consideration of the statement of the defendant, dated 7 March 2011 and the affidavit of [the plaintiff's mother] dated 27 May 2011 resolves any necessity for any such conference to occur. Please advise whether your client considers that the conference should be undertaken by 4.00pm on 15 July 2011. If your client requires the expert conference to be undertaken by reference to your proposed issues, then we put you on notice that we will be objecting to any such joint report associated with same on the basis of relevance as detailed herein." 12The joint conference of experts took place on 20 July 2011. Professor Chapman, Dr Lyneham and Dr Childs attended. They answered the questions originally proposed by Professor Robinson's solicitors. All questions were unanimously answered in the negative. 13The following day Professor Robinson's solicitors wrote to the plaintiff's solicitors inquiring whether, in the light of the answers of the joint experts, the plaintiff intended to proceed with the action. That letter provoked a response dated 25 July 2011 that included advice that the plaintiff's solicitors were "in the process of obtaining a report from Dr William Molloy" which they understood would be available the next day. The letter also inquired whether Professor Robinson "proposes to object to the report being relied upon by [the plaintiff] for her claim generally and at the hearing on 1 August 2011." Dr Molloy's report was served on Professor Robinson's solicitors on Wednesday 27 July 2011, or two clear working days before the hearing was due to commence. 14The plaintiff relied upon two affidavits sworn by her solicitor Nicholas Mitchell Coren dated 29 July 2011 and 31 July 2011. Mr Coren was cross-examined. At least the following matters emerged either from those affidavits in the first place or during the course of the cross-examination in the second place: 1. Mr Coren has had the conduct of these proceedings on behalf of the plaintiff since their inception. 2. Mr Coren's understanding of the case was that it was always to be what he called "a request case", meaning one in which the issue of whether or not the plaintiff's mother requested Professor Robinson to perform a caesarean section was central. 3. Professor Chapman provided reports to Mr Coren for use in the plaintiff's case dated 29 November 2006 and 12 December 2007. 4. Amendments to the statement of claim on 19 June 2008 followed advice from Mr Lawson of counsel. 5. Mr Lawson had accepted a brief to advise and appear for the plaintiff in April 2007. 6. Mr Harben SC was briefed by Mr Coren on 15 July 2010 to advise and appear at the hearing. 7. Mr Harben SC advised Mr Coren in writing on 29 July 2010 in terms that included the following: "2. I referred in my advice to you of 28 July 2010 to the question of outstanding particulars to the defendant and in particular the instructing letters to our experts. It seems to me from what you have now told me in conference that the probability is that we have given to the defendant the statement from our client. My view is that if that is the case that is the reason they have now served the Offer of Compromise because, as I have told you in conference, the conversation which I set out on page 2 of my advice to you will not get us over the line against the defendant. You have told me that there will be other conversations and you will need to sit down with our client's mother and take a draft detailed proof of evidence from her. The downside of that is that will be subject to cross-examination in comparison to the original statement and in my view will reflect adversely on our client's mother's credibility. ***** 5. I note that I discussed with you specifically what I had set out on page 3 of my advice to you and in particular what was said by our expert in his second report. In particular we discussed the following sentence: ' If there was demonstrated to be proof that this conversation did occur, and the patient demanded that a caesarean be done, then I certainly believe that Professor Robertson (sic) should have agreed to that request. ' I note that you interpret that comment as being specifically related to the conversation set out on page 2 of my advice, whereas I interpreted it to be that Professor Chapman assumed that there was in fact, in addition to that conversation, something in the nature of a demand for a caesarean that went unanswered. I have asked you to liaise with Professor Chapman to clear that up because if the matter is litigated he will no doubt be subject to strenuous cross-examination on that part of his report. In addition it may be that he said that as a consequence of something that is written in the letter of instruction to him and I note that you will send to me all letters of instruction to our relevant experts by return." 8. Mr Harben's advice, referred to in his 29 July 2010 letter, was not produced in evidence before me. 9. Mr Harben SC wrote to Mr Coren on 24 February 2011 in the following terms: "I refer to your letter of 24 February 2011. I thought that I made it patently clear that if the conversation set out by the defendant's solicitors and referred to in my previous Advice was the extent of the evidence from the plaintiff's mother, then the case would fail. You have assured me in a previous conference that there were sufficient requests to satisfy the requirement by our expert that a caesarean was 'demanded'. It is the full extent of that conversation or those conversations which need to be set out in detail and provided. I had thought that you were going to do that and provide that to our expert for further clarification some time ago, but it is that material which must be in the proof of evidence and about which our client's mother must give evidence. I reiterate that if the simple conversation referred to in the document prepared by the defendant's solicitors is the extent of the evidence then the case inevitably will fail. If the joint report is requested simply on the basis of that material, the case inevitably will fail." 10.Mr Harben SC advised Mr Coren on 11 May 2011 that he could not appear at the hearing. 11. Mr Lawson returned his brief in late June 2011. 12. Mr Connor SC advised Mr Coren on 20 July 2011 that he was not prepared to accept a brief on a contingency fee basis. He also advised Mr Coren that in his opinion the particulars of negligence pleaded in the second amended statement of claim did not cover a case of negligent failure to provide information and advice concerning the respective risks and benefits of caesarean section versus vaginal delivery in the circumstances relating to the plaintiff's mother's obstetric history. 13. Mr Connor SC informed Mr Coren that he would consider taking a brief to appear on an application to amend the pleadings to raise a case of negligent advice provided evidence supporting such a case was obtained from a specialist obstetrician concerning the respective risks and benefits of caesarean section and vaginal delivery in the circumstances relating to the plaintiff's mother's obstetric history. 14. Mr Connor SC provided written confirmation of his advice to Mr Coren. Part of that written confirmation, delivered to Mr Coren at 1.00pm on 22 July 2011, is as follows: "On 20 July I informed you of my view that the two particulars of negligence did not over a case of negligent advice: failing to inform the plaintiff's mother of the respective risk and benefits of caesarean section versus vaginal delivery in her particular circumstances. I note your belief that this kind of case was inherent in, or somehow connected with, the case concerning the plaintiff's mother's request for a caesarean section. ***** On 21 July I was seeing Dr Molloy in conference in relation to another matter...I provided Dr Molloy with the reports of the three obstetricians, Professor Robinson's statement and later the plaintiff's mother's statement. Dr Molloy reviewed those documents for some hours. I then had a conference with Dr Molloy to ascertain what his view was. He advised me that if he had been in Professor Robinson's position he would have recommended to the plaintiff's mother that she have a caesarean section at about 37 weeks because of the risks associated with vaginal delivery in the circumstances. He was of the view that proper professional practice at the time required that the plaintiff's mother be informed of the respective risks and benefits of caesarean section versus vaginal delivery in her circumstances and the courses of action be discussed with her." 15The present application was filed six days later.