Supreme Court New South Wales Medium Neutral Citation: McGarry v Southern NSW Local Health District [2017] NSWSC 305 Hearing dates: 27 March 2017 Decision date: 29 March 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The plaintiff is granted leave to file and serve a second further amended statement of claim, in the form foreshadowed by the end of the hearing before me on 27 March 2017. (2) The plaintiff must pay the costs of each of the defendants occasioned by the filing of that second further amended statement of claim. (3) The notice of motion of the plaintiff of 19 January 2017 is dismissed. (4) The plaintiff must pay the costs of each of the defendants of the proceedings before me with regard to the notice of motion of 19 January 2017. Catchwords: CIVIL – PROCEDURE – personal injury proceedings – application to file and serve further pleadings – leave granted to file and serve second further amended statement of claim – application in relation to previously agreed timetabling orders with regard to expert evidence – notice of motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 64 Trade Practices Act 1974 (Cth) (repealed) Uniform Civil Procedure Rules 2005 (NSW), r 31.36 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20 Category: Procedural and other rulings Parties: Jennifer Henriette Jacqueline McGarry (Plaintiff) Southern NSW Local Health District (First Defendant) Dr Matthew Nott (Second Defendant) Stryker Australia Pty Limited (Third Defendant) Representation: Counsel: I D Roberts SC (Plaintiff) M B Inglis (Plaintiff) J Downing (First Defendant) B Bradley (Second Defendant) L T Livingston (Third Defendant) Solicitors: Commins Hendriks Pty Ltd (Plaintiff) Crown Solicitor's Office (First Defendant) Curwoods Lawyers (Second Defendant) Ash Street Partners Pty Ltd (Third Defendant) File Number(s): 2011/106378 Publication restriction: Nil Judgment Introduction 1. Before the Court are two notices of motion, each filed by the plaintiff. In a nutshell, the second of them (filed on 17 February 2017) seeks leave to amend, yet again, a statement of claim that was first filed as long ago as 31 March 2011 in the District Court of New South Wales. The other (the first of them, filed on 19 January 2017) seeks interruption of a timetable set some time ago for the preparation of expert evidence, including by way of conclave. Each of the motions pertains to a claim in negligence that has a trial date in this Court of 7 August 2017. Background 1. My understanding of the background can be shortly stated. On 31 August 2010, the second defendant, Dr Nott, was performing hip replacement surgery on the plaintiff, Ms McGarry, at Bega Hospital on the South Coast of New South Wales. One of the instruments that Dr Nott was using was a rasp, which I understand to be a file-like surgical instrument used for scraping the surface of a bone. Somehow the rasp became lodged in the femur (the thigh bone) of the plaintiff, although the precise mechanism of how that occurred is not entirely clear. Part of the allegation of the plaintiff is that the handle of the rasp actually broke free. As one would expect in those circumstances, further surgical intervention was required, allegedly to the detriment of the health of the plaintiff. 2. The plaintiff has sued the Southern NSW Local Health District (the proprietor of the hospital, and the first defendant), Dr Nott, and also Stryker Australia Pty Limited (the third defendant, and the manufacturer of the rasp). The hospital has cross-claimed against Stryker, as has Dr Nott. Notice of motion – amendment of pleadings Submissions of the plaintiff 1. With regard to the notice of motion of 17 February 2017, the position of the plaintiff was that leave should be granted to further amend her pleadings, so as better to reflect information that has now come to light by way of the provision of witness statements, expert reports, and the two cross-claims. It was explained by senior counsel that the amendments will expand the claim against the first defendant to allege that it failed to have in place an appropriate system for the care and maintenance of surgical instruments. The same expanded allegation will be made against Dr Nott, albeit to a more limited degree. As well as that, the particulars of negligence against Dr Nott will be altered to include, amongst other things, an allegation that he used excessive force when manipulating the rasp. Finally, the claim against the manufacturer of the rasp will be expanded to include a claim under the Trade Practices Act 1974 (Cth) (repealed). 2. It was said that to grant such leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) would be consonant with the interests of justice generally; that it is important that all of the alternative bases of the claims of the plaintiff can be litigated; that the hearing date remains four months away; that no new cause of action will be pleaded by the plaintiff against any defendant; and, finally, that the plaintiff accepted that she should bear the costs incurred by her opponents as a result of this change of position. Submissions of the first defendant 1. On behalf of the first defendant it was said that the reports relied upon by the plaintiff were available many months ago. 2. Secondly, the proposed new pleading constitutes a significant expansion in the claim against the first defendant, in that it is an allegation of failing to have an appropriate system of maintenance of instruments. 3. Thirdly, it was said that no evidence had been placed before me as to whether this late change is purportedly necessitated by oversight, a change in forensic decisions, or anything else. That absence of explanation would play an important role, it was said, in whether I would be prepared to grant leave. 4. Fourthly, whilst it was not said that it would be impossible for the first defendant to answer the expanded claim without endangering the hearing date, it will certainly involve a degree of extra time, work, and expense. Submissions of the second defendant 1. On behalf of Dr Nott it was said that leave should be refused. Reference was made to the well-known decision of the High Court of Australia in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, which announced a sea-change with regard to late amendments, and also made clear that costs are not an all-curing balm. 2. It was said that such a change at this stage could endanger the hearing date. 3. Rule 31.36 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) was referred to, in order to support the proposition that no, or no sufficient, expert evidence can be pointed to by the plaintiff in order to justify its expanded claims against Dr Nott. 4. Relatedly, it was said that the proposed expanded particulars focus unexpectedly on a different aspect of the surgery, to the prejudice of the second defendant, and constitute an inappropriate change of ground at this late stage. 5. Finally, it was noted that the rasp in question was in the possession of the solicitor for the plaintiff, but has been lost. That, it was said, irreparably prejudices the ability of the second defendant to defend the proposed expanded claim, for the simple reason that the instrument is not available for testing by experts qualified by his solicitor, including as to whether it could break without it being the subject of excessive force. 6. In all of those circumstances, it was said that leave should be refused. Submissions of the third defendant 1. Counsel for the third defendant made it clear that he neither consented to nor opposed leave being granted to expand the claim, so long as the costs of his client thrown away were recompensed by the plaintiff. Determination 1. Turning to my determination of this motion, I consider that the leave sought should be granted. I say that for the following reasons, in generally descending order of importance. 2. First, the hearing date is a number of months away. I have a quiet confidence that, with the diligent efforts of all parties, it will not be endangered. 3. Secondly, the plaintiff does not propose to plead substantive new causes of action; what is proposed is an expansion of a claim in negligence, including against a manufacturer. 4. Thirdly, speaking generally, a party seeking relief from a court should be permitted to make its claim as it sees fit, unless there are significant countervailing circumstances. 5. Fourthly, the loss of the rasp is undoubtedly concerning. But the forensic disadvantage suffered by the second defendant will surely be reflected upon by the trial judge. And as the High Court of Australia made clear in The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20, except in most unusual circumstances, a trial that suffers from the unavailability of evidence should nevertheless proceed. The same may be said, in my opinion, about the expansion of the claim against Dr Nott based upon his manipulation of the rasp. 6. Fifthly, it is true that there is no personal explanation for this late change, in the sense of an affidavit from a lawyer explaining why it is now said to be necessary. Speaking more generally, however, I think that the explanation given by senior counsel for the plaintiff – that expert evidence served over the past several months, along with the cross-claims, has led to deeper reflection – is not to be discounted: I know from experience that one's thinking about a trial evolves during one's preparation for it. 7. Sixthly, it is true that the expert evidence, impugning the professional conduct of Dr Nott and to which senior counsel for the plaintiff pointed in support of compliance with the rule, was concise. It is also true that the allegations against Dr Nott are to be expanded to a degree. But I think that the proposed expanded parameters of this (in truth) simple case, including with regard to the new particulars of the allegation against Dr Nott, are tolerably clear, readily able to be answered by him, and not so disadvantageous to him as to call for their prohibition. 8. Seventhly, it is true that costs are not to be regarded as a panacea with regard to all changes of position of this kind. In these circumstances, however, I believe that they are a sufficient remedy for each defendant with regard to this latest change in the position of the plaintiff. 9. For all of those reasons, I propose to make the orders sought in the notice of motion of 17 February 2017, and to grant leave to the plaintiff to file the second further amended statement of claim foreshadowed before me. Costs of this motion 1. There are a number of countervailing considerations with regard to costs. In favour of the plaintiff, she enjoyed success against the first and second defendants. To be weighed against that is the fact that the motion only needed to be argued because of the latest change of position of the plaintiff. As well as that, senior counsel for the plaintiff at the hearing repeatedly amended what was proposed by way of the second further amended statement of claim, including as late as in his oral submissions in reply. Weighing up all of those circumstances, and as an exercise of discretion, I consider that all three defendants should have their costs thrown away by the amendment, but there should be no other order as to the costs of the hearing of the proceedings before me with regard to this notice of motion. Notice of motion – vacation of timetable of preparation of expert evidence 1. Turning to the other notice of motion of 19 January 2017, I consider that it can be dealt with briefly. 2. Senior counsel for the plaintiff explained that its import is to require the witness statement of Dr Nott to be provided before the expert witnesses meet in conclave in order to prepare their joint report. It was said that having the version of events of Dr Nott available to the experts, so that they can express considered opinions about it, would be far preferable to the experts merely being asked to express opinions on the basis of an assumption, whether that be in conclave or whilst giving expert evidence jointly at the trial. 3. I do not accept that submission, for the following reasons. 4. First, as all three defendants submitted, there is nothing to stop the parties asking the experts to comment upon alternative assumptions, including ones which may reflect the expected version of events of Dr Nott. 5. Secondly, as needs be, the same approach may readily be adopted when the experts are in the witness box. Again, one knows from experience that experts, in their oral evidence, are very commonly asked to make assumptions (sometimes complex and detailed ones), and thereafter asked to express an opinion based upon those assumptions. 6. Thirdly, the timetable that is now sought to be set at nought by the plaintiff was agreed in by her lawyers many months ago. 7. Fourthly, even accepting (for the sake of argument only) that there may be some advantage in the experts having the version of events of Dr Nott available at their conclave, I consider that it would be far outweighed by the disadvantage of having the orderly preparation of the trial disrupted by the vacation of the current timetable and the setting of a completely new one. That is especially so in light of the fact that I propose to grant leave to expand the claim of the plaintiff, a step that will itself lead to a degree of disruption. 8. Fifthly, far from being contrary to the usual procedures of this Court, it was not disputed before me that the way forward proposed by the defendants is in conformity with the relevant Practice Note. 9. For all of those reasons, I propose to dismiss the notice of motion of the plaintiff of 19 January 2017. Costs of this motion 1. All three defendants opposed this motion of the plaintiff, and they succeeded. They should have their costs of the proceedings before me with regard to this notice of motion. Orders 1. I make the following orders: 1. The plaintiff is granted leave to file and serve a second further amended statement of claim, in the form foreshadowed by the end of the hearing before me on 27 March 2017. 2. The plaintiff must pay the costs of each of the defendants occasioned by the filing of that second further amended statement of claim. 3. The notice of motion of the plaintiff of 19 January 2017 is dismissed. 4. The plaintiff must pay the costs of each of the defendants of the proceedings before me with regard to the notice of motion of 19 January 2017. ********** 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 March 2017