DAVIDSON v STENING [2011] NSWSC 1142

Supreme Court New South Wales

Medium Neutral Citation: DAVIDSON v STENING [2011] NSWSC 1142 Hearing dates: 2 August 2011 Decision date: 29 September 2011 Jurisdiction: Common Law Before: RS Hulme J Decision: (i) The Notice of Motion filed on 1 March 2011 is dismissed; (ii) The Defendant is to pay the Plaintiff's costs of and incidental to that Notice of Motion. Catchwords: Professional negligence - delay and default in preparation - inability to medically examine Plaintiff - dismissal of proceedings not justified Legislation Cited: Section 67 of the Civil Procedure Act 2003 Cases Cited: Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Texts Cited: Dorland's Illustrated Medical Dictionary, 30th Edition Category: Principal judgment Parties: Jennette DAVIDSON Michael STENING Representation: Mr DE Graham (Plaintiff) Ms J Lonegran (Defendant) Monaco Solicitors (Plaintiff) Colin Biggers & Paisley (Defendant) File Number(s): 2009/297423

Judgment 1RS HULME J: On 17 February 2009 Mrs Davidson commenced proceedings alleging professional negligence against the Defendant, an orthopaedic surgeon. The Statement of Claim, together with a report on liability by an orthopaedic and accident surgeon, Mr Sydney Nade, was served in March 2009. 2On 29 April 2010 Mrs Davidson died. On 9 February 2011 pursuant to leave given by the Registrar, an Amended Statement of Claim wherein the Plaintiff's widower was substituted as the Plaintiff was filed. On 1 March 2011 the Notice of Motion which is the inspiration for these reasons was filed. The Notice of Motion seeks that the proceedings:- (i) Be dismissed for want of due despatch pursuant to UCPR 12.7; (ii) Be dismissed pursuant to Rule 31.36.3 of the UCPR for failure to serve expert reports complying with Rule 31.36.1; (iii) Be dismissed pursuant to Rule 23.9 of the UCPR for failure to attend for medical examination to permit assessment of damages; and/or (iv) Be permanently stayed pursuant to Section 67 of the Civil Procedure Act 2005 for failure to attend for medical examination. 3The number of bases upon which relief is sought together with the number of events which preceded Mrs Davidson's death require some chronology of events. 24.6.61 Mrs Davidson was born. 26.12.01 Mrs Davidson claims to have tripped on broken tiles at her home and injured her left foot. She saw a GP who referred her to the Defendant. 8.1.02 Mrs Davidson first consulted the Defendant. 18.4.05 Mrs Davidson last consulted the Defendant. There was a plan she would return for review in 14 days. She did not, and consulted other treating orthopaedic specialists. 1.7.09 Conference hearing before Registrar Bradford who ordered, inter alia, that the Defendant file a defence by 15 July 2009 and that the Plaintiff serve the primary medical evidence by 15 October 2009. 25.8.09 Mrs Davidson's solicitors served a supplementary liability report of Dr Nade. 28.8.09 The Defendant's solicitors seem to have sent a request for further and better particulars. The Plaintiff's solicitors say they have no record of receipt at that time. 7.9.09 Defence filed. 16.12.09 Mrs Davidson's solicitors served reports of a psychiatrist, Dr Chaudhary, and of Lauren Alach, an occupational therapist, on the Defendant's solicitors. 18.2.10 The Defendant's Solicitor sent a reminder regarding the request for further and better particulars. 23.2.10 Mrs Davidson's solicitors informed the Defendant's solicitors that they did not have a copy of the request and were sent another. 2.12.10 Letters of Administration were granted to Mrs Davidson's husband. 9.2.11 Amended Statement of Claim substituting Mrs Davidson's husband as Plaintiff filed pursuant to leave. 20.4.11 Mrs Davidson's solicitors served a report of a Dr Adler. 4In the period between the orders of 1 July 2009 and Mrs Davidson's death there were a variety of delays. I do not regard it as necessary to set out all that occurred during this period although it should be noted that Mrs Davidson advised her solicitor she was unable to attend an appointment with a psychiatrist on 19 August 2009 due to severe blistering on her feet and the earliest alternative appointment that her solicitor could arrange was 19 November 2009, and this with another psychiatrist. During this period she also advised her solicitor the she was to undergo bowel surgery in September 2009 and would be unavailable for several weeks and that she had been to see other doctors in relation to her foot during which time treatment options including amputation were discussed. 5In December 2009 there were further discussions between Mrs Davidson and her solicitor on that last mentioned topic and on 15 December 2009 Mrs Davidson's solicitor phoned the Defendant's solicitor handling the matter, Miss Kaminskas and advised her to that effect and that if amputation was to occur it would probably be during the next few months. Miss Kaminskas responded to the effect that if that was going to occur, she would need to have the Plaintiff examined beforehand. I think it probable that, as Mr Monaco deposed, he in turn suggested that Miss Kaminskas organise medical examinations as soon as possible. A letter sent on 19 March 2010 again emphasised the desirability of early examinations on the Defendant's behalf. 6In fact there had been previous discussions or correspondence concerning medical examination on the Defendant's behalf. There is an issue I find it unnecessary to resolve as to whether there were even earlier discussions but on 15 February 2010, the Defendant's solicitors wrote advising that they had arranged for the Plaintiff to be examined by Dr Sullivan on 20 April 2010. On 17 February 2010 the Defendant's solicitors wrote again advising that they had arranged for the Plaintiff to be examined by Dr Sullivan on 27 April 2010. The letter contains no explanation for the change of appointment or reference to earlier discussions although Miss Kaminskas deposes to the change having been a consequence of advice that Mrs Davidson had other commitments. 7The Plaintiff was admitted to Westmead Hospital from 19 February to 29 March 2010, on 6 April 2010 for the day, and on 28 April 2010 until her death on the following day. On 12 March Mr Morgan, the solicitor then handling the matter on behalf of Mrs Davidson attended upon her in hospital to obtain instructions in order to answer the request for particulars. He deposed to being unable to then obtain all necessary information due to the Plaintiff's fatigue but accepted her instructions that, given the time she anticipated being in hospital again or then for bowel surgery and then recuperation, she would not be fit to attend medical examinations until late May. 8On 12 March 2010 Mr Morgan wrote to the Defendant's solicitors advising them to that effect. I accept that during this period the solicitors for the Defendant experienced difficulties in arranging appointments for Mrs Davidson to be examined by medical practitioners on the Defendant's behalf although it is also fair to say that they do not seem to have taken any steps to have Mrs Davidson examined in hospital or to have any practitioners otherwise attend upon her. 9Also during the period December 2009 to 20 January 2010, at the instigation of the Defendant's solicitors a further conference hearing was arranged although, in consequence of Mrs Davidson's illness, adjourned. 10The allegations of negligence fall within a limited compass. The particulars were:- (a) Failing to diagnose the Plaintiff as suffering from a neuropathic left foot or Charcot's Arthropathy when the Plaintiff was first referred to him and subsequently during the period in which the Plaintiff was under his care; (b) Failing to consider the possibility of a neuropathic left foot in light of the Plaintiff's past history of IDDM and a left neuropathy when the Plaintiff first presented to him and subsequently throughout the period in which the Plaintiff was under his care; (c) At the time of her initial consultation with him, failing to immobilise the Plaintiff's left foot in a total contact cast until such time as the initial fracture had healed; (d) Performing unnecessary operations in the form of the operations performed on 14 May 2002 and 8 September 2002. (e) Failing to immobilise the Plaintiff's left foot in a total contact cast for a sufficient period to enable healing after the operation on 17 August 2004. 11Accordingly to Dorland's Illustrated Medical Dictionary , 30 th Edition , neuropathy is a functional disturbance or pathological change in the peripheral nervous system. Known etiologies for the condition include complications of diabetes. Charcot's arthropathy is a neuropathic joint disease. IDDM is a reference to insulin-dependent diabetes mellitus. 12In his report served with the Statement of Claim, some 13 pages long, Mr Nade said that had not examined the Plaintiff but detailed a number of radiological photographs and reports concerning Mrs Davidson's left foot. Two of these antedated the Defendant's treatment of her, something of the order of 19 occurred during the time of the Defendant's treatment of Mrs Davidson and some 20 occurred during or after April 2005. Certainly some of these examinations were inconclusive but the balance present a wealth of objective evidence as to the condition of Mrs Davidson's foot before, during and after the Defendant's treatment of her. 13Also served at that time was a voluminous quantity of other material. Included in that were numerous reports of the Defendant dated between 5 March 2002 and 3 July 2007. In a report of 17 April 2006, Dr Stening observed:- After reviewing Dr Cummine's report I have concluded that he is correct in his assessment and that my diagnosis has been wrong. For all the reasons he has outlined, as well as other aspects that I have noted during the care of her, that now they are consistent with a diabetic Charcot's foot and the subsequent complications associated with treating her foot. This diagnosis makes complete sense. 14In a report of 21 August 2006, Dr Stening retreated from that view, remarking:- In my last correspondence I concurred with Dr Cummine's assessment that the degenerative changes that have occurred in her foot can be attributed to a diabetic Charcot's type picture. I also stated that ultimately with a Charcot's foot, the mid foot collapses. Interestingly, the most recent x-rays do not show any sign of mid foot collapse. For this reason I am not convinced that the degenerative changes that have developed in the tarsometatarsal joint, particularly involving the first ray, are entirely due to a diabetic Charcot's foot. ... In my original correspondence to you I felt that the changes were more consistent with an unrecognised lis frank injury and I now feel that this is the most likely diagnosis. 15Dr Stening returned to the topic in a report of 3 July 2007, then saying:- I realise I have vacillated regard to definitive diagnosis for this lady but I now believe that the most likely diagnosis is one of a Charcot's arthropathy, that I did not recognise when I first instituted treatment for this lady. 16Also included in the voluminous quantity of other material were clinical notes of a Dr Chipps. That material included many reports from other doctors extending over the period from at least December 1992 to July 2006. Those reports demonstrate that Mrs Davidson suffered from numerous serious health problems and contain a very extensive history of these during that period. Indeed the reports lead to the view that there would be very few persons whose health has been the subject of such extensive expert consideration and remark by treating doctors. 17Included in the material are numerous references during reports of 1992, 1994, 1995, and 1997 to 1999 to Mrs Davidson's diabetes and variations in its manifestation. There are also references to symptoms of peripheral neuropathy and symptoms apparent in Mrs Davidson's lower limbs. 18Counsel for the Defendant disclaimed reliance on events occurring after Mrs Davidson's death. He made clear that the basis for the first of the four claims, viz. that the proceedings be dismissed for want of due despatch pursuant to UCPR 12.7 was the failure to provide the requested particulars. Given the matters referred to above bearing on answering this request, it does not seem to me that such failures as occurred should lead to the drastic relief which the Defendant seeks. In the first place, there is no evidence of any significant prejudice to the Defendant. In the second, once regard is had to the wealth of medical records as are available even at this stage, my impression is that there will have been no significant prejudice. In the third, although I acknowledge that this was not the subject of argument, the request is so extensive that there is much to be said for the view that there is a degree of oppression about it. In the fourth, it is impossible on the evidence to determine what were the circumstances that led to Mrs Davison's solicitors not having a copy of the request prior to February 2011. In the fifth, it is obvious that Mrs Davidson's illness was a significant contributor to any failure to answer the request after 23 February 2011. 19The second of the prayers for relief was inspired by the fact that at the time the Notice of Motion was filed in March, the Plaintiff had not served any expert report that, in the words of Rule 31.36.1:- Includes an opinion supporting: (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged. 20The Defendant's counsel accepted that the contents of Dr Adler's report fulfilled the requirements of these paragraphs. Given the purpose of the Rules, it would not be appropriate to dismiss the proceedings on the ground this was not served earlier. 21Turning to the third prayer for relief, rule 23.9 empowers the Court to make such order as it sees fit, including the dismissal of proceedings, if a party makes default in compliance with events referred to earlier in the Rule, including a notice to attend for a medical examination. Counsel accepted that he could not rely in support of the third prayer on the Plaintiff's death but submitted that the problem could have been avoided had an earlier date been arranged for the Plaintiff to be reviewed by Dr Sullivan. 22However, that is not the test under rule 23.9. Although the evidence of Mrs Davidson's illness and explanation for her failure to attend on Dr Sullivan was by no means all in admissible form, enough appears to lead to the view that the Defendant has not persuaded me that her non-attendance was not perfectly justified or at least reasonable. (I may add that a similar conclusion and reasons apply in respect of such other delays and defaults as occurred during the 1 July 2010 to 29 April 2011 period.) 23Section 67 of the Civil Procedure Act 2003 empowers the Court to stay proceedings. In support of the prayer relying on that section, counsel placed reliance on the decisions of Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 and the principle adumbrated therein that there is an onus on the Defendant to show that whatever damage the Plaintiff had suffered was not a consequence of her pre-existing condition 24He submitted that in the events that had happened the Defendant would be limited to "relying on examinations of doctors who have not been retained to critically evaluate and distinguish symptomatology and sequelae relating to the defendant's alleged negligence as opposed to other things": This, together with the fact that the Defendant had not seen Mrs Davidson since April 2005 and Dr Nade's report indicated that some of the x-rays were not apparently still available meant that the Defendant could not have a fair trial. Reliance was placed on the decision and remarks of the High Court in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256. 25I do not regard it as necessary to quote at length from that case where the High Court upheld the decision of the Court of Appeal to stay a plaintiff's action. However, the gravamen of the decision to grant that stay stands in stark contrast with the circumstances here. In the words of the majority of the High Court:- The critical holding by Bryson JA appears in the sentence: No more than a formal enactment of the process of hearing and determining the Plaintiff's claim could take place; it cannot be expected that the process would be just. Bryson JA also stated: To my mind the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct a trial into the question whether the Plaintiff's injuries were caused by negligence of the defendants, and no further search or enquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate with any realistically useful information. 26Certainly the Plaintiff's death and the failure of the Defendant to have her examined by one or more experts of his choice has deprived the Defendant of evidence that he may have found useful. However, that situation is not an uncommon one in trials, be they for medical negligence or in the criminal courts. Witnesses die. Records are lost. Memories fade and while the losses may reach a stage where a fair trial is no longer possible, that is not demonstrated by merely pointing to some such losses. Here a wealth of evidence remains and not only am I not persuaded that the continuation of the proceedings would be unfair, I am positively persuaded that that is not the situation. 27And though I do not need to rely on it, I would add the following. The Defendant called no expert evidence to the effect that an examination of Mrs Davidson prior to her death would or might have advanced its case or that an inability to examine her, years after the Defendant's treatment concluded, hampered any assessment of the Defendant's conduct. I see no reason why the Court should dismiss the Plaintiff's claim merely on the basis of a theoretical possibility which the Defendant was either unable, or chose not, to support by evidence. 28These conclusions make it unnecessary for me to embark on a further question raised before me, viz. whether the effect of s5E of the Civil Liability Act has had the effect that what was said in Watts v Rake and Purkess v Crittenden is no longer good law. 29Although I accept that there have been some less than perfect preparation of the case on the Plaintiff's side of the record, by far the largest issue raised pursuant to the Notice of Motion has been the Defendant's contention that the proceedings should be permanently stayed. When the Defendant's failure on that issue is combined with the other conclusions adverse to him, the consequence should be that the Defendant pay the costs of the Notice of Motion. 30It is also appropriate that whatever steps are necessary to have the matter ready for trial be now taken without further delay. I will stand the matter over or down so that whatever directions are necessary to have that occur be made. Otherwise the appropriate orders are:- (i) The Notice of Motion filed on 1 March 2011 is dismissed; (ii) The Defendant is to pay the Plaintiff's costs of and incidental to that Notice of Motion.