Chaker, Patricia v Tompsett, Elizabeth [2011] NSWSC 135 (2 March 2011)

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Chaker, Patricia v Tompsett, Elizabeth [2011] NSWSC 135 (2 March 2011)

Last Updated: 27 May 2011

Supreme Court New South Wales

Case Title:	Chaker, Patricia v Tompsett, Elizabeth
Medium Neutral Citation:	[2011] NSWSC 135
Hearing Date(s):	Thursday, 24 February 2011
Decision Date:	02 March 2011
Jurisdiction:
Before:	HOEBEN J
Decision:	Plaintiff's application to file a Further Amended Statement of Claim which includes paragraphs 11, 18, 19, 24(b) and 24(c) of the draft Further Amended Statement of Claim attached to the affidavit of Arthur James Fogarty, sworn 17 January 2011, is refused. Plaintiff is to pay the defendant's costs of the application.
Catchwords:	PRACTICE AND PROCEDURE - pleadings - amendment - statement of claim - matter having proceeded to trial and on appeal - application to file a further amended statement of claim raising a new issue not previously litigated - lateness of application - lack of explanation for delay - Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 60 - Costs disproportionate to verdict - just determination of the proceedings - application to amend refused.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Texts Cited:
Category:	Interlocutory applications
Parties:	Patricia Chaker - Plaintiff Elizabeth Tompsett - Defendant
Representation
- Counsel:	Counsel: Ms M Avenell - Plaintiff Ms J Sandford - Defendant
- Solicitors:	Solicitors: TressCox Lawyers - Plaintiff Lamrocks Solicitors & Attorneys - Defendant
File number(s):	2011/00065254
Publication Restriction:

Judgment

1. HIS HONOUR:

Nature of application
The plaintiff moves by Notice of Motion dated 18 January 2011 for an order that she be granted leave to file and serve the Further Amended Statement of Claim annexed to the affidavit of Arthur James Fogarty, pursuant to 19.1 of the Uniform Civil Procedure Rules.

2. Despite the form of the order sought, the application is made pursuant to s64 of the Civil Procedure Act 2005. That section relevantly provides:
   

"64(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

..."

3. The defendant does not object to a number of the proposed amendments but does object to a series of amendments which relate to what the parties described as "the advice and information" case. The amendments which were disputed relate to that issue.
   

Factual background

4. The principal proceedings arise from an operation which took place on 13 May 2003 when the defendant carried out a varicose vein removal procedure in respect of the plaintiff's legs. Following the operation, the plaintiff developed a condition known as lymphoedema in the left leg. This is a condition which gives rise to fluid and swelling in the leg. It is a chronic and disabling condition.
   
5. The plaintiff brought proceedings in the District Court against the defendant alleging that her negligence had caused or materially contributed to the onset of the lymphoedema. The hearing commenced in the District Court on 19 March 2007 and after 11 days, judgment was handed down on 13 May 2009. The trial judge found in favour of the plaintiff, both as to liability and in damages ($345,690.58). Relevant to this application is that on 22 March 2007 after 4 days of hearing, the plaintiff sought to amend the Statement of Claim to add an allegation that the defendant had negligently performed the operation. That amendment resulted in an adjournment and the trial did not resume until 10 March 2008.
   
6. The defendant appealed to the Court of Appeal. That appeal was heard over 3 days, 4-6 August 2010 and judgment was handed down on 25 November 2010. The effect of the judgment was that the matter should be remitted to the Common Law Division of the Supreme Court for a rehearing as to liability but that damages should be assessed as in the first trial with appropriate adjustments to take account of interest. This application has come before the Court as part of the case management of the rehearing.
   
7. In order to understand the argument, it is necessary to set out the disputed amendments:
   

"11 The defendant owed the plaintiff a duty of care to inform or communicate information to the plaintiff so as to permit the plaintiff to make an informed choice as to whether to undergo the surgery by the defendant proposed by the defendant.

...

18 The defendant should have explained to the plaintiff in appropriate language and by means capable of being understood by the plaintiff:

(a) That the plaintiff had complicated varicose veins with pelvic venous incompetence, pelvic venous hypertension and pelvic venous reflux whereby blood that ordinarily drained from veins in the pelvis into veins in the abdomen, drained from veins in her pelvis to veins in her legs;

(b) What the drainage of pelvic blood into her legs entailed for the veins in the plaintiff's legs and her lymphatic system.

(c) That the defendant had no expertise in assessing or managing pelvic venous incompetence, pelvic venous hypertension and pelvic venous reflux in connection with varicose veins in the legs;

(d) That the defendant was a general surgeon and not a vascular or venous surgeon and there were other surgeons who had expertise in assessing and managing pelvic venous incompetence, pelvic venous hypertension and pelvic venous reflux in connection with varicose veins in the legs, such as Dr Mark Malouf (Venous Specialist) who the plaintiff could consult;

(e) That the plaintiff should see a person with expertise in assessing and managing pelvic venous incompetence, pelvic venous hypertension and pelvic venous reflux in connection with varicose veins in the legs such as Dr Mark Malouf, and that the defendant could refer the plaintiff to see such a person;

(f) That there was a risk of lymphodoema with the surgery that the defendant proposed and lymphodoema in a leg was manifest as permanent, irreversible and disabling swelling of the leg which may progress with age;

(g) That the risk of lymphodoema with surgery on the major vein at the top of the leg was increased in the plaintiff's case because:

(i) Many grossly dilated veins not ordinarily encountered in the surgery were likely to appear in the operating field, and need to be dissected out, tied off and divided to get access to tie the major vein at the top of the leg and;

(ii) The plaintiff had pelvic venous reflux so that pelvic venous blood flowed through the veins in her legs, increasing the load on the veins in her legs and the lymphatic system in her legs;

(h) That the risk of lymphodoema was increased if it was performed by a general surgeon rather than a person with special expertise in managing pelvic venous incompetence, pelvic venous hypertension and pelvic venous reflux in connection with varicose veins in the legs, such as Dr Mark Malouf.

(i) The need for the surgery by the defendant and;

(j) The alternatives to the surgery proposed by the defendant and the benefits and risks associated with each course.

19 The defendant did not explain any of the matters in paragraph 18 above to the plaintiff.

...

24 the defendant failed to exercise reasonable care and skill in the management of the plaintiff and in the provision of information and advice to the plaintiff.

Particulars of Negligence

...

(b) Failed to inform or communicate information to the plaintiff including the matters referred to in paragraph 18 above, so as to permit the plaintiff to make an informed choice as to whether to undergo a varicose veins surgery performed by the defendant.

(c) Failed to offer to the plaintiff the opportunity of being referred to a venous specialist."

8. It was common ground that such a claim had not been made in the District Court proceedings. It was common ground that in the District Court proceedings there was no report from any of the medical experts, in particular the medical expert retained on behalf of the plaintiff, which covered that claim. Counsel for the plaintiff accepted that if the amendment were allowed, it would be necessary for the plaintiff's medical expert to prepare an additional report covering this issue and perhaps for another medical expert to be retained on behalf of the plaintiff to also provide a report on this issue. Counsel for the defendant advised that in those circumstances, it would be necessary for the defendant to obtain additional reports from her experts to answer these new expressions of opinion.
   
9. It was common ground that the only evidence on this issue in the trial was given on the second last day when Dr Eagleton, one of the defendant's medical experts, was cross-examined (Black 356Q-X, 538I-P). Even then the evidence was brief and general to the effect that "a patient should always be kept fully informed". Moreover, the evidence was given in the context of whether the defendant should have referred the plaintiff to another specialist surgeon, an issue which was raised in the trial, ie "the referral case".
   
10. The only other evidence on the issue was given on the last day of the trial when Dr Lippey, another medical expert retained by the defendant, was cross-examined (Black 586S-U). On that occasion although the issue was raised with Dr Lippey, his responses were at best equivocal and certainly not supportive of the claim now proposed.
    
11. The issue was not raised in submissions, except to say that the defendant should have informed the plaintiff that she had pelvic venous reflux and that as a result, there was a greater risk of lymphodoema if the varicose vein removal operation took place.
    

Submissions

12. The plaintiff submits that the amendments do not raise a new case. She says that in the District Court pleadings there was an allegation that the defendant owed to the plaintiff a duty of care "in respect of ... the provision of advice and information". She says that the disputed amendments go no further than refining and particularising that allegation. She submits that the amendments simply articulate the content of the advice which she says the defendant should have given to her.
    
13. The defendant submits that the amendments do raise a new case which was not pursued at trial. She submits that the issues pursued at trial were:
    

(i) Failing to refer the plaintiff to a surgeon specialising in the venous system.

(ii) Failing to properly assess the plaintiff's pelvic venous system prior to undertaking the surgery.

(iii) Failing to undertake the correct surgical procedure.

(iv) Failing to inform the plaintiff of the risk of lymphodoema.

(v) Failing to carry out the surgery in such a manner as not to cause lymphodoema.

To the extent that the pleadings raised a duty to provide advice and information, the defendant submits that this was not pursued at trial other than on the basis of a failure to advise as to the risk of developing lymphodeoma.

14. The defendant relies upon the provisions of ss56-60 of the Civil Procedure Act 2005 (CPA) and on the principles outlined in Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 and the cases which have applied those principles.
    
15. The defendant submits that the concept of an "informed choice" was never raised at the trial and in any event is a concept which lacks precision. In that regard, the defendant relies upon the oft quoted passage in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490 (Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ):
    

"Nothing is to be gained by reiterating the expressions used in American authorities such as "the patient's right of self-determination" or even the oft used and somewhat amorphous phrase "informed consent". The right of self-determination is an expression which is, perhaps suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase "informed consent" is apt to mislead as it suggests a test of the validity of the patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligent. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to a patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed."

16. The defendant submits that if the amendments are allowed, there will be further delay and it will be necessary for both parties to incur substantial additional costs in obtaining expert opinion directed towards the subject matter of the amendments. The defendant submits that the length of the rehearing will be increased because of the need to test expert opinion on this issue. Finally, the defendant submits that the costs likely to be incurred in the rehearing if the amendments are allowed are not proportionate with the modest damages to be awarded to the plaintiff if she is successful (s60 CPA).
    

Consideration

17. The proposed amendments raise a new issue. The case propounded by the proposed amendments was not put at trial. Not only was there no report covering the issue raised by the amendments, there was no oral evidence supporting it other than the brief mention under cross-examination to which reference has already been made. Since the plaintiff is seeking to raise a new issue which has not previously been raised in the proceedings, the question for the Court is whether the amendments should be allowed under s64 CPA.
    
18. In considering that question the Court has to have regard to the provisions of ss56-58 CPA. Those sections relevantly provide:
    

"56(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

...

57(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case."

19. The Court of Appeal (Allsop ACJ, Campbell and Young JJA) had occasion to consider these sections in Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 where Allsop ACJ said:
    

"36 The arguments before this court illuminated the difficulty of review of a decision such as that made by the Magistrate. The Civil Procedure Act , ss 56-61 brings about a new statutory balance among various factors in litigation including court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the courts to provide individual justice. Especially in a court as busy as the Local Court, it is vital that the judicial system work in a way that denies, categorically, the party against whom a legitimate claim or grievance is brought the opportunity to say, with justification: " So I owe you $x, what are you going to do about it? Sue me in Court? That will take years. " The reforms that have taken place under the Civil Procedure Act and the evident attempt by the Local Court to ensure efficiency of service for the public can thus be seen not merely to reflect worthy governmental and judicial efforts for efficiency, but also to be vital for the provision of timely individual justice. To these salutary ends significant powers of case management have been placed in the hands of judicial officers which, if exercised, can often be seen to have sharp, and sometimes detrimental effects on the claims of parties. Such consequences can be seen in the very nature of the powers in the Civil Procedure Act ..."

20. On that same issue, Spigelman CJ (with whom Basten and Campbell JJA agreed) said in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37:
    

"28 The respondent invoked the authority of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 in support of its ability to amend, even for the fifth time. Case management practices in all Australian courts have changed significantly in the decade since that judgment. Although it remains binding authority with respect to the applicable common law principles, the circumstances of the case were significantly different from those in the present case and do not dictate its outcome. In any event, such principles can be, and have been, modified by statute both directly and via the statutory authority for Rules of Court.

29 In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms - "must seek" - to give effect to the overriding purpose - to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" - when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act ."

21. A similar observation was made by French CJ in Aon at [24] where his Honour said in relation to similar rules in the ACT:
    

"The Judicature Acts and associated Rules of Court are reflected in rr 501 and 502 of the ACT Rules. The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502."

22. Matters to which the Court has to have regard in applications such as this include the just disposal of the application and whether an amendment is required to determine the real questions raised in the proceedings. In that regard the plurality in Aon Risk Services rejected the proposition that "real issues in the proceedings" extended to any issues which a party sought in good faith to advance and which were arguable [67].
    
23. In Aon the plurality set out the basis for their rejection of that proposition as follows:
    

"69 The purpose of these earlier Rules, to permit a determination of the real issue or controversy in the proceedings, which informed those powers to amend, is now stated as a separate and distinct obligation in r 501(a). The question which arises from the terms of r 501(a) is whether it is necessary to make an amendment for the purpose of deciding the real issues in the proceeding.

70 Some general observations concerning rr 501(a), 502(1) and 21 are necessary at this point.

71 The words "the real issues in the proceeding" in r 501(a) obviously refer to issues raised, perhaps unclearly, in the pleadings at the time of the application for leave to amend. The "real" issues may also extend beyond the pleadings, as cases concerned with the purpose stated in the original Rules show. But, as is explained in these reasons, to be regarded as a real issue, and for amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application. Amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1), read with the objectives of r 21.

...

82. The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. But it is not the existence of such a mistake that founds the grant of leave under rules such as r 501(a), although it may be relevant to show that the application is bona fide. What needs to be shown for leave to amend to be given, as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it."

24. Applying those principles, the issue sought to be raised in the amendments is not one which could be properly regarded as "for the purpose of determining the real questions raised by the proceedings" as set out in s64(2) CPA.
    
25. There are other matters which strongly suggest that the amendments should not be allowed. The amendments are sought to be made very late in the proceedings. A trial has been completed, which included a significant amendment to the plaintiff's claim, and the matter has been examined over three full days in an appeal. No explanation has been forthcoming from the plaintiff to explain the delay in seeking the amendment. On the contrary, when the delay was put to counsel for the plaintiff all that was suggested was that now the matter had been referred for a rehearing as to liability, this was the appropriate time to make any amendments to the Statement of Claim. I do not regard that as a satisfactory explanation of the delay. One cannot help but infer that what occurred during the course of the appeal was that the legal advisers of the plaintiff had cause to reconsider the way in which the plaintiff's case was put at trial and now wish to put it in a different way.
    
26. The complaints by the defendant that substantial additional costs will be incurred with the obtaining of new expert opinion by both sides and the possible lengthening of the rehearing, are well founded. Delay will also be inevitable. Not only will the new claim have to be particularised, but the exchange of new expert opinion and the responses thereto will also take time. It is difficult to see the rehearing obtaining an early hearing date. This further exacerbates the problems already created for the parties and the proper administration of justice in having to have the matter reheard.
    
27. The s60 CPA consideration is also relevant. As the defendant submitted, the costs of this litigation are already disproportionate to the damages to be awarded to the plaintiff if she is successful. That lack of proportionality will be exacerbated if the amendments are allowed.
    
28. There is another consideration which tends strongly against allowing the proposed amendments. It involves a simple matter of policy.
    
29. As indicated, this matter was fully prepared for trial, proceeded over two years as a hard fought contest in the District Court, was subject to a three day appeal and now has to be heard again. That last circumstance was an inevitable but regrettable result of the appeal. The proposed amendments raise a new and discrete issue which has not been previously raised in the proceedings. In those circumstances, the parties should be bound by the way in which they have chosen to conduct the matter to date. The trial and appeal process should not be regarded as some kind of "trial run" which would allow either side to significantly change their case because of the unfortunate circumstance that the matter has to be heard again.
    
30. The problems associated with such an approach were highlighted by the plurality in Aon where their Honours said:
    

"97 The objectives of case management are now expressly stated in r 21 of the Court Procedure Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedure Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.

98 Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs."

31. It follows from the above reasons that the plaintiff's application to amend the Statement of Claim in relation to the disputed amendments is refused. For the avoidance of doubt, the specific paragraphs which I disallow in the Further Amended Statement of Claim are: Paragraphs 11, 18, 19, 24(b) and 24(c).
    
32. It also follows from this ruling that I refuse leave to the plaintiff to adduce additional expert evidence in support of the matters in those paragraphs which have been rejected.
    
33. Since the plaintiff has failed in relation to this application, she should pay the defendant's costs of the motion.
    

Orders

34. I make the following orders:
    

(1) The plaintiff's application to file a Further Amended Statement of Claim which includes paragraphs 11, 18, 19, 24(b) and 24(c) of the draft Further Amended Statement of Claim attached to the affidavit of Arthur James Fogarty, sworn 17 January 2011, is refused.

(2) The plaintiff is to pay the defendant's costs of the application.

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