Supreme Court New South Wales Medium Neutral Citation: Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 887 Hearing dates: 8 June 2018 Date of orders: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Common Law Before: Harrison J Decision: (1) Grant leave to the defendant to file an amended defence in the form exhibited to the affidavit of Jacqueline Anne Marie Fox dated 5 June 2018. (2) Grant leave to the plaintiff if so advised to serve a report from a geneticist by no later than 5.00 pm on Friday 17 August 2018. (3) Order that the plaintiff will not be permitted to serve any report contemplated by order (2) other than in accordance with the timetable provided by that order. (4) Order that the costs of this application be the defendant's costs in the proceedings. Catchwords: CIVIL PROCEDURE – pleadings – amendment – application to amend defence – where no disadvantage to the plaintiff – where amendment clarifies the defendant's position CIVIL PROCEDURE – application by the plaintiff to serve additional medical evidence – where no prejudice to the defendant – where evidence relates to a potentially significant issue Legislation Cited: Civil Liability Act 2002 (NSW), s 5O Civil Procedure Act 2005 (NSW), s 56 Category: Procedural and other rulings Parties: James Phillip Coffey by his tutor Kathleen Amanda Coffey (Plaintiff) Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service (Defendant) Representation: Counsel: JA Hillier (Plaintiff) R Cheney SC with J Downing (Defendant) Solicitors: Commins Hendriks Pty Ltd (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant) File Number(s): 2011/108788 Publication restriction: Nil Judgment 1. HIS HONOUR: Two matters arise for consideration in this long-running litigation. The first concerns the defendant's application to amend its defence. The second concerns the plaintiff's desire to serve expert medical evidence from a geneticist. 2. The plaintiff has amended his statement of claim more than once. In response to his further amended statement of claim the defendant pleaded at paragraph 80 in the following terms: "80. Further, in answer to the whole of the further amended statement of claim, the defendant states that it, by its servants or agents, acted in a manner that (at the time the service was provided) was widely accepted practice in Australia by peer professional opinion as competent professional practice and that therefore the defendant does not in the circumstances incur a liability in negligence to the plaintiff pursuant to s 5O of the Civil Liability Act." 1. The proposed amendment is as follows: "80. Further, in answer to the whole of the Further Amended Statement of Claim, the defendant states that it, by its servants or agents, acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice in all material aspects of its management and care of the plaintiff, including in: (i) admitting Kathleen Coffey to Wagga Wagga Base Hospital between 4 and 10 January 2004 and managing her there, rather than transferring her to Canberra Hospital for antenatal care; (ii) treating her during the 4-10 January 2004 admission with tocolytics, corticosteroids and antibiotics; (iii) monitoring her uterine contractions and recording them during the 4-10 January 2004 admission; (iv) performing vaginal examinations on 4 and 10 January 2004; (v) performing a foetal fibronectin test on 10 January 2004; (vi) discharging her on 10 January 2004 (while continuing Aldomet and Adalat and antibiotics) with advice to return to the antenatal clinic on 14 January 2004; and (vii) reviewing her in the antenatal clinic on 14 January 2004, at which time standard observations were done and urinalysis was performed and she was advised to return to the antenatal clinic for follow up in two weeks' time or earlier if she was concerned, and, pursuant to section 5O of the Act, it does not incur a liability in negligence to the plaintiff. 80A Further, if, which is denied, section 5O of the Act requires that the defendant establish that it acted pursuant to a practice that was in existence at the relevant time, then the defendant says that the manner in which it acted, including in doing the things referred to in paragraph 80 above, accorded with, or was pursuant to, a practice in existence at that time." 1. The proposed amended defence had been circulated to the plaintiff's solicitors by letter dated 7 May 2018. The defendant sought a response in a subsequent letter dated 18 May 2018. On 23 May 2018, the plaintiff's solicitor responded as follows: "In order for us to properly consider your proposed amended defence, please identify with particularity, the expert report(s) and relevant paragraphs of those report(s) that your client relies upon in relation to the proposed amendments at proposed paragraph 80(i) to (vii) and 80A. Further, please identify the facts and circumstances upon which the defendant relies in support of the claimed s 5O defence." 1. The defendant's solicitor responded in these terms on 24 May 2018: "We refer to your letter dated 23 May 2018 in relation to the defendant's proposed amended defence to the further amended statement of claim. The defendant relies on the totality of the expert evidence from Drs Lyneham and Child, but in particular Dr Lyneham's answers to question 1 and 2 in his report of 30 March 2018 and Dr Child's answer to question 12 in his report of 2 April 2018. The facts and circumstances, as opposed to the evidence that will be relied upon to support the s 5O defence, are already adequately particularised in the sub-paragraphs of paragraph 80 of the proposed amended defence. Please advise by 2pm 25 May 2018 if the plaintiff consents to the filing of the proposed amended defence failing which the defendant will file a Motion returnable on 1 June 2018 seeking leave to amend its defence in the form of the amended defence which was forwarded to you under cover of our letter dated 7 May 2018. If the plaintiff does not consent and leave is granted to the defendant, we will seek costs including costs on an indemnity basis." 1. The plaintiff's solicitor replied by letter dated 28 May 2018 as follows: "We refer to your letter dated 24 May 2018. We are instructed that the plaintiff will consent to the defendant filing the amended defence subject to the defendant agreeing that the plaintiff have leave to serve any further evidence as may be required to meet the proposed amendments." 1. The defendant's solicitor responded on 29 May 2018 as follows: "We refer to your letter dated 28 May 2018 in which you advised that you are instructed to consent to the defendant filing the amended defence 'subject to the defendant agreeing that the plaintiff have leave to serve any further evidence as may be required so as to meet the proposed amendments.' We are instructed not to agree to your proposal. In our view, there is need or no proper basis for the plaintiff to serve further evidence at this time. We note the proposed amendments to the defence add particulars to the already pleaded section 5O defence and reflect the opinions contained in the reports provided by Dr Lyneham and Dr Child. Those reports were served in reply to the report of the plaintiff's expert, Professor Bryce and further, were served in accordance with orders made by the Court on 20 November 2017. We note that the plaintiff raised the issue of the proposed amended defence and sought orders permitting the service of further evidence from his O&G experts when the matter was before the court on 9 May 2018. Registrar Bradford refused to make such orders and we fail to see why they should be made now. As we indicated to the Court on 9 May 2018, the plaintiff's experts can raise any issues arising from the most recent reports from Drs Lyneham and Child in the course of the joint conference. We have therefore been instructed to file a Notice of Motion to seek leave to file the proposed Amended Defence to the Further Amended Statement of Claim. We enclose by way of service notice of motion filed 29 May 2018 and returnable on 8 June 2018. We attach herewith the Notice of Listing." 1. Finally, for present purposes, the plaintiff's solicitor replied on 7 June 2018 as follows: "We refer to your letter dated 24 May 2018. The decision of South Western Sydney Local Health District v Gould [2018] NSWCA 69 provides that where section 5O is raised in pleadings it needs to be pleaded with such specificity to ensure that the plaintiff has the opportunity of meeting the case against him and to define the issues for decision by the Court. For instance, in this matter, in relation to the failure to transfer Kathleen Coffey and the plaintiff in utero and the related issues of the management of Kathleen Coffey's 'high risk' pregnancy your defence simply states that the failure to transfer and continued management was 'widely accepted in Australia by peer professional opinion as competent professional practice'. However, this blanket invoking of section 5O does not identify who the 'peer professional' group is. Is the peer group a local health district which is of course the defendant, or a Consultant O&G or O&G Registrar or is it a junior RMO such as Dr Bunting and Dr Follet who were left in charge of the management of Kathleen Coffey's 'high risk' pregnancy? Further in your blanket indication of s 5O you do not deal with the protocols in place namely circulars:- 1. 2002/49 dated 23 April 2002 – Protocol for Administration of Tocolytic Agents (Intravenous Salbutamol or Oral Nefedipine) for Treatment of Premature Labour; and 2. 99/71 dated 1 September 1999 – Policy for Emergency Obstetric and Neonatal Referrals. Neither party to litigation of this type should be expected by the other party to extract from voluminous medical reports the precise particulars of negligence nor the particulars of the section 5O defence from the reports provided by Dr Lyneham and Dr Child. The expert opinions upon which you suggest support a section 5O defence have been in your possession for many years. It was open to the defendant to plead with the required degree of specificity any section 5O defence which it wished to advance well before now. As is made clear in the interpretation of s. 5O by Leeming JA in Gould the section operates in the context of a plaintiff having made out a case in terms of section 5B. Whilst of course they are both interrelated, section 5O, being a defence will not come into play until the plaintiff established a case for a breach of duty of care. The position under section 5O contrasts in this regard with the Bolam test. To meet any section 5O defences which you are permitted to raise at this stage, the plaintiff will require further opinion evidence. The opinion evidence served to date goes to establishing breaches of duty of care, but may not address each section 5O issue in so far as you currently identify. In this regard, not only is your proposed 5O pleading deficient in not identifying who the peer group is, but the plaintiff is also entitled to at this stage to seek opinions in relation to both the transfer issue and the management issues to make good an argument under section 5O(2). Further, the lack of specificity in your current pleading or proposed amended pleading does not allow for a proper exploration of the issues implicit in section 5O(3) or 5O(4)." 1. In support of its application, Mr Cheney SC made the following submission: "The short point is that we simply seek to amend the existing defence under s 5O to better particularise the manner in which we acted and which we say attracts the competent professional practice defence. By this amendment we are not seeking to other than draw upon existing expert evidence that has been served in the proceedings. … Nothing about the amendments introduces a different case on behalf of the defendants. The amendments are informed by the existing evidence that has been served. … And there is nothing about these amendments that generate[s] a need for new evidence to be put on by the plaintiff. … … the nature of the amendments introduced in paragraph 80, they largely pick up the material facts alleged by the plaintiff in the further [amended] statement of claim. That is we say in … each of the respects in which you impugn our conduct, admitting [Ms Coffey] and not transferring her etc., the allegations the plaintiff makes, we say in all those respects we acted in accordance with competent professional practice. There is nothing in the amendment that generates a need for new evidence." [Emphasis added] 1. I take the plaintiff's position to be as described in the letter dated 7 June 2018. 2. I inquired of counsel for the plaintiff whether she could tell me what portions of the proposed amendments raised any new issue. The response to my inquiry was as follows: "A blanket 5O defence was previously raised and that is not in contention. We say it is not currently pleaded specifically to say whether Ms Coffey's pregnancy was managed … properly by two RMOs. The plaintiff's case is that it should have been managed by a consultant O&G or a senior or registrar O&G. The plaintiff's position is where the defendant is simply saying, this is accepted practice by peer professional opinion, the defendant needs to say whether that relates to the management by those RMOs. That's the plaintiff's position, that it needs to go further." 1. It seems to me that, far from creating any disadvantage for the plaintiff, the proposed amendments in fact clarify the defendant's position. The defendant's concession that the amendments are based upon the evidence already served also means that the plaintiff is protected from any attempt by the defendant at a later stage to augment its s 5O contentions by reference to material that the plaintiff does not already have. 2. In the circumstances, the proposed amendments ought to have been agreed to long before this. Indeed, some of the references in the plaintiff's solicitor's letter dated 7 June 2018, on one view, confine the defendant's case and appears to support the need for the amendment rather than the reverse. The plaintiff's experts have already expressed opinions about whether what the defendant did accorded with a proper standard of care and management. There is no magical quality about the words used in s 5O that remove the need for an inquiry about the propriety or otherwise of what the defendant is alleged to have done or failed to do. A case such as the present will proceed upon evidence and opinions in much the same way as it would have before the Civil Liability Act 2002. The defendant's case will be assessed by reference to the evidence in its current form. The defendant's proposal does not give rise to the need for the plaintiff to do anything more in an evidentiary context than has already been done. 3. The second issue arises in the following way. On an earlier occasion, Garling J made an order that the plaintiff respond to the report of Professor Delatycki, a geneticist retained by the defendant. The plaintiff has so far served a report and an MRI but now wishes to obtain the opinion of a geneticist. Counsel for the plaintiff has indicated that that has been difficult to arrange and relies upon the affidavit of Tonya Teresa Longmore sworn 7 June 2018 in which she describes efforts to locate such an expert. 4. Senior counsel for the defendant has informed me that he wishes to cross-examine Ms Longmore about what efforts have been made since 30 October 2017 to answer Mr Dylaticki's report upon the basis that he perceives that the plaintiff may well have been inappropriately tardy in any attempts to do so. The defendant concedes that there is no presently obvious prejudice that would attend the service within eight weeks by the plaintiff of a geneticist's report, apart from the somewhat remote and speculative possibility that the defendant might require genetic testing of the plaintiff's siblings. 5. Although the existence or anticipation of prejudice is not the only matter of relevance, and may not even be of any relevance in some cases, it seems to me that the plaintiff should have an opportunity, if he now considers it to be appropriate, to respond to a report from a specialist that the defendant considers was sufficiently important to serve in its own case. The hearing is not listed until November 2018. If the genetic issue is to be assessed as part of this case in a fair way, it would be churlish at this remove from the hearing not to allow the plaintiff, within a specified time, to obtain the evidence in question. I have no enthusiasm for the suggestion that Ms Longmore should be required for cross-examination, having regard to the overriding purpose and s 56 of the Civil Procedure Act 2005, when the defendant accepts that it is not prejudiced and in circumstances where the material will be available by no later than mid-August 2018 in any event. 6. In the circumstances, I will make the following orders: 1. Grant leave to the defendant to file an amended defence in the form exhibited to the affidavit of Jacqueline Anne Marie Fox dated 5 June 2018. 2. Grant leave to the plaintiff if so advised to serve a report from a geneticist by no later than 5.00 pm on Friday 17 August 2018. 3. Order that the plaintiff will not be permitted to serve any report contemplated by order (2) other than in accordance with the timetable provided by that order. 4. Order that the costs of this application be the defendant's costs in the proceedings. ********** 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: 15 June 2018