SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / Bennett v Australian Capital TerritoryCitation: / [2016] ACTSC258
Hearing Date: / 5 August 2016
DecisionDate: / 8 September 2016
Before: / Mossop AsJ
Decision: / See [117]
Catchwords: / LIMITATION PERIOD – Limitation Act 1985 (ACT), s 30B – Application to amend originating claim and statement of claim – Whether new cause of action statute barred – Meaning of “injury”, “accident”, “disease or disorder” – Where it is unclear whether a limitation period has expired following the commencement of proceedings – Court will firstdecide whether amendment could be permitted under r 503(4) Court Procedure Rules 2006 (ACT) – If not permitted under r 503(4), Court may decide it is nevertheless appropriate to grant leave to make the amendment, but for amendment toonly take effect from the date of the application to grant leave.
PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim – Addition of claim of brain damage arising from pleaded negligence - Whether new cause of action
PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim – New cause of action relating to feeding difficulties during period after previously pleaded negligence - Whether new cause of arises out of substantially the same facts as the original statement of claim – Where temporal disconnect between allegations pleaded and allegations sought to be made – Where evidentiary facts that would need to be covered as part of the existing claim would extend to those facts from which new cause of action can be said to arise – Management of the plaintiff’s feeding problems arise out of substantially the same facts.
PRACTICE AND PROCEDURE – Application to join treating doctors as second and third defendants – Not possible to find that existence of a limitation defence would render the joinder futile – Leave granted.
Legislation Cited: / Civil Law (Wrongs) Act 2002 (ACT)
Court Procedures Rules 2006 (ACT), rr52, 53, 242, 502, 503, 514
Limitation Act 1985 (ACT), ss 30B, 33, 36, Dictionary
Cases Cited: / Aon Risk Services Australia Ltd v Australian National University[2009] HCA 27;(2009) 239 CLR 175
Brickfield Properties Ltd v Newton [1971] 3 All ER 328
Dornan v JW Ellis & Co Ltd [1962] 1 QB 583
Golski v Kirk[1987] FCA 200; (1987) 14 FCR 143
Kenjar v Australian Capital Territory [2014] ACTSC 69
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37;(1985) 156 CLR 522
Meredith v Commonwealth[2009] ACTSC 168
Morgan v Banning (1999) 20 WAR474
Naidu v Fergusson [2013] ACTSC 208; (2013) 8 ACTLR 150
Opbroek bhnf Crittall v Australian Capital Territory[2016] ACTSC 64; (2016) 11 ACTLR 171
Parties: / Mackenzie Bennettbhnf Ian Bennett (Plaintiff)
Australian Capital Territory (Defendant)
George Malecky (Proposed Second Defendant)
Michael Rosier (Proposed Third Defendant)
Representation: / Counsel
Mr D Hirsch (Plaintiff)
Ms L Donohoe SC with Mr W B Buckland (Defendant)
Mr J Sheller (Proposed second and third defendants)
Solicitors
Canberra Legal Group (Plaintiff)
Australian Capital Territory Government Solicitor (Defendant)
Minter Ellison (Proposed Second and Third Defendants)
File Number: / SC117 of 2013
MOSSOP AsJ:
The application
1.By application in proceeding dated 1 July 2016 the plaintiff seeks orders permitting her to:
(a)add Dr George Malecky and Dr Michael Rosier as defendants in the proceedings;
(b)add further allegationsof negligence against the Australian Capital Territory; and
(c)expand on mattersalready pleaded.
2.Dr Malecky and Dr Rosier were served with the application and appeared by counsel in order to oppose the joinder to proceedings.
3.Some of the proposed amendments were not opposed by the Australian Capital Territory. In relation to other amendments, they were opposed on the basis that they raised a new cause of action but should not be permitted because of the prejudice to the defendant. A final category of amendments were opposed on the basis that they raised a new cause of action that did not arise out of substantially the same facts as the original statement of claim and they caused prejudice to the defendant.
The existing pleading
4.The present statement of claim pleads the following matters. The plaintiff was born 12 April 2007at Calvary Private Hospital. She suffered from Downs syndrome and had a cardiac problem, principally a large atrial ventricular septal defect: [1.3]. On 13 April 2007 she was transferred to the Canberra Hospital and admitted to the Newborn Intensive Care Unit: [1.6]. The pleading repeats the terms of various hospital notes and the results of investigations from the period 15 to 18 April 2007: [1.7]-[1.15] leading to a diagnosis on 19 April 2007 of a bowel perforation: [1.5]. The plaintiff was operated upon by a laparotomy on 19 April 2007 where a perforation of the transverse colon was discovered and a proximal transverse colostomy created: [1.16]. The claim alleges that the bowel performation was caused or contributed to by multiple periods of inadequate oxygenation: [1.17]. It is also alleged that those periods of inadequate oxygenation were caused or contributed to choanal atresia of her right nostril: [1.19]. The choanal atresia was blockage of the nostril caused by a bony defect.
5.The pleading then alleges that on 2 June 2007 the plaintiff was transferred to Westmead Hospital where her cardiac anomaly was successfully repaired: [1.20]-[1.21]. It is alleged that “[t]he plaintiff has ongoing disabilities caused by the perforation of her bowel”: [1.22].
6.Eleven particulars of negligence are then pleaded. They may be summarised as follows:
(a)failure to maintain adequate oxygenation and avoid oxygen desaturation: [2.2.1], [2.2.2].
(b)failure to diagnose or treat choanal atresia in a timely manner: [2.2.3], [2.2.4].
(c)failure to detect or manage the plaintiff’s sepsis: [2.2.5], [2.2.6].
(d)in relation to the bowel perforation, failing to detect or investigate the possibility of a bowel perforation in a timely manner, failing to arrange a surgical review and failing to diagnose or properly manage the bowel perforation: [2.2.7]- [2.2.11].
7.The particulars of injuries, disabilities, loss and damage provide:
3.1.1 Perforation of the plaintiff’s bowel
3.1.2 The development of necrosis and sloughing in the vicinity of the transverse colon
3.1.3 Need for colostomy
3.1.4 Bowel problems arising from the fact of the perforation
3.1.5 Bowel problems arising from the need for colostomy
3.1.6 Further or in the alternative bowel problems arising from the development of necrosis and sloughing in the vicinity of the transverse colon
3.1.7 Further particulars of injury will be provided prior to hearing
8.In summary, the existing statement of claim is targeted at the bowel problems suffered by the plaintiff and alleged to have been caused by the failure to manage her condition between 13 and 19 April 2007 so as to avoid or reduce the necrosis of her bowel, its perforation and the consequences thereof.
The proposed amended pleading
9.The proposed amended pleading renumbersthe paragraphs of the pleading so that it more readily corresponds to astatement of claim and is no longer in the abbreviated form of pleading contemplated by Form 2.5 at the time. In so far as the form provided for an abbreviated form of pleading, it was not authorised by a particular rule: cf rr52, 53 of the Court Procedures Rules 2006 (ACT) (CPR).
Uncontroversial amendments
10.Some of the amendments proposed to be made in the amended statement of claim are not opposed by the defendant. They are amendments to proposed paragraphs 1, 8, 9, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 24, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 67(a)-(r), 72(a), (e), (s), (t), (u) and (w). In summary, these additional allegations expand upon the factual basis for the claim and put it in a form more consistent with a fully pleaded statement of claim.
Amendments relating to brain damage
11.The next category of amendmentsinvolves the insertion of paragraphs 46, 47 and 72(b). Proposed paragraph 45 pleads that after the laparotomy on 19 April 2007, and despite the correction of the plaintiff’s cardiac defect, the plaintiff was unable to feed orally for particular identified reasons. Paragraph 46 alleges that the inability to feed orally was caused or contributed to by brain damage. Paragraph 47 alleges that the brain damage was caused between 13 and 19 April 2007 during which time the plaintiff suffered from necrotising enterocolitis, low oxygenation, bacterial infection and seeding of infected emboli to the brain. Paragraph 72(b) pleads as a particular of damage: “brain damage”. These amendments are opposed by the defendant on the ground that they involve the allegation of a new cause of action and that the allegations are such as to cause prejudice to the defendant. It is not alleged by the defendant that these amendments do not arise out of substantially the same facts as the cause of action already pleaded.
Other amendments
12.The other amendments which are opposed by the defendant are those inparagraphs 2, 3, 4, 43, 45, 48-65, 67 (a)-(x), 68, 69, 70, 71, 72 (c), (d), (f)-(r), (v) and (x). These amendments fall into a number of categories.
13.Paragraphs 2, 3 and 4 are introductory paragraphs identifying the responsibility of the defendant for speech pathologists and dieticians employed by the Canberra Hospitaland “Therapy ACT”, introducing Dr Maleckyand identifying his relationship with the defendant, introducing Dr Rosier and identifying his status as a paediatrician. In each case whether or not the amendment is appropriate will depend upon whether or not the substantive allegations relating to the persons referred to are permitted to be included in the amended claim.
14.Paragraph 43 involves an allegation that on 25 October 2007 Dr Malecky performed a laparotomy to reverse the plaintiff’s colostomy and discovered a 4 to 5 cm atretic fibrous segment in the plaintiff’s splenic flexure which was necrotic bowel caused by necrotising colitis that was not detected or removed at the initial laparotomy he performed on 19 April 2007. This allegation is significant because it is alleged as a particular of negligence ([67] (q), (r)) that the hospital breached its duty of care because on 19 April 2007 Dr Malecky failed to detect that segment of necrotic bowel or, if he detected it, failed to remove it. This particular of negligence is not objected to by the defendant. In those circumstances it appears to be inconsistent to object to the factual allegation which is necessary for the allegation of negligence. The essence of the factual allegation is that the necrotic tissue was present on 19 April 2007 but was not removed.
15.Paragraphs 48-65 relate to the management of the plaintiff’s feeding problems between 19 April and 25 October 2007. During that period she is alleged to have been intolerant of milk and regularly suffering reflux. Those difficulties are alleged to have been caused or contributed to by the presence of the necrotic bowel that had been:
(a)caused by the necrotising enterocolitis;
(b)not detected or removed by Dr Malecky 19 April 2007.
16.It is then alleged that because of the feeding intolerance and the brain damage the plaintiff required tube feeding. During the time that she was tube fed she developed various feeding problems. It is alleged that her feeding problems were managed by:
(a)speech pathologists and dieticians at the Hospital and through “Therapy ACT” from July 2007: [53];
(b)Dr Rosier as a private patient from August 2007: [54]; and
(c)Dr Malecky as a private patient from September 2007: [55].
17.It is alleged that in November 2007 Dr Malecky communicated to Dr Rosier that if a gastrostomy was to be considered herecommended waiting until March/April 2008 because of technical and anatomical difficulties. It is alleged that the difficulties were caused or contributed to by the presence of the necrotic bowel that had not been detected or removed by Dr Malecky. It is further alleged that neither Dr Rosier nor Dr Malecky revisited the option of a gastrostomy as contemplated by Dr Malecky earlier. It is alleged that neither Dr Rosier, Dr Malecky or the speech pathologists and dieticians referred the plaintiff for coordinated multidisciplinary management as was available at Westmead Hospital: [63]-[65]. These allegations are then linked to particularised breaches of duty as follows:
(a)breaches of duty by speech pathologists and dieticians (for which the defendant is liable) relating to the management of the plaintiff’s feeding problems: [67] (s)-(x);
(b)breaches of duty by Dr Malecky ([68]-[69]) and Dr Rosier ([70]-[71]) including by failing to revisit the issue of gastrostomy in or around March/April 2008 and failing to refer the plaintiff to the feeding clinic at Westmead Hospital.
18.It is not clear why the defendant objects to the allegations relating to Dr Maleckyand DrRosier’s breach of duty of care in relation to the management of the plaintiff’s feeding problems, as those are matters in relation to which the plaintiff was treated as a private patient by those doctors and not matters for which the defendant is said to be liable. So far as the defendant is concerned it is the allegations against its speech pathologists and dieticians which may give rise to liability. In relation to the management of feeding problems, additional particulars of damages are provided which are:
c. Feeding intolerance
d. Reflux
…
f. Aspiration
g. Multiple hospitalisations for aspiration
h. Oral hypersensitivity
i. Oral hypotonia
j. Feeding aversion
k. Poor growth
l. A dental decay
m. Impaired and delayed feeding skills
n. Global developmental delay
o. Delayed speech development
p. Delayed language development
q. Impaired intellectual development
r. Impaired socialisation
…
v. Need for past and future allied health care, including, but not limited to
i. Speech therapy
ii. Diet related treatments
iii. Physiotherapy
iv. Occupational therapy
v. Rehabilitation
…
x. Need for past and future dental care.
19.It is worth noting at this point that, having regard to the existing allegation that the necrotising enterocolitis and bowel perforation resulted from the negligence of the defendant, the causally related consequences of the tube feeding would have been within the scope of particulars that might reasonably have been provided within the scope of “Further particulars of injury will be provided prior to hearing”. The causal link would have been that if it was not for the suffering of necrotising enterocolitis and bowel perforation then tube feeding and the problems that followed from that would not have occurred. Insofar as the tube feeding for an extended period was the result of negligent treatment by dieticians, speech pathologists or Drs Rosier or Malecky, those consequences were foreseeable consequences of the original negligence and hence within the scope of damages recoverable: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37;(1985) 156 CLR 522 (Kruschich).
20.Therefore even if leave is not given to include thoseadditional allegations of negligence concerning the failure to remove the 4 to 5 cm atretic fibrous segment in the splenic flexure or the allegations of negligence in relation to tube feeding, those matters will still be live issues in the proceedings. So far as the plaintiff is concerned, the benefit of the additional pleading in relation to those matters is that the plaintiff could still recover damages even if the original treatment of her bowel condition was found not to be negligent.
21.So far as the brain damage allegation is concerned, unlike the position in relation to tube feeding, this is a new allegation of damage in relation to the original treatment. It is damage that is not consequential upon the necrotising enterocolitis or bowel perforation and hence would not be a matter within the scope of damages contemplated by the original pleading.
Evidence
22.The plaintiff read the affidavits of her solicitor, Mr May, dated 1 July 2016 and 4 August 2016. The defendant read the affidavits of its solicitor, Mr Bayliss, dated 26 and 27 July 2016.
23.The affidavit of Mr May dated 1 July 2016 provides a basic description of the nature of the amendments sought and the issues that arise in the case.
24.His affidavit of 4 August 2016 addresses issues of delay in bringing the claim and provides an explanation for the application to make the amendments. As he only commenced working with the plaintiff’s solicitors in October 2015, much of his evidence was based upon his review of the plaintiff’s solicitors’ file. So far as the delay in serving the personal injury claim form was concerned, he relied upon a letter which was sent by the plaintiff’s solicitors to the defendant’s solicitors stating that it was not until 5 July 2010 thatthe Canberra Hospital was identified as an appropriate defendant,as prior to that the plaintiff’s parents had sought advice relating to the involvement of the Calvary Hospital.
25.Counsel was briefed to advise the plaintiff in June 2010. The solicitor with carriage of the matter left the firm in March 2012 and a further solicitor took over the carriage of the matter. It was only in February 2013 that the new solicitor understood that a personal injury claim form had not been served. It was served shortly after.
26.As at 2010 the plaintiff’s working theory was that a lack of oxygen saturation in the first few hours at Calvary Hospital caused, or significantly contributed to, the plaintiff’s bowel damage. Counsel’s advice was sought. The plaintiff’s parents only delivered a large number of pathology reports to the plaintiff’s solicitors in February 2012. The parents’ explanation for this delay was that they were concerned about complaining about the Canberra Hospital because the plaintiff and the plaintiff’s mother were being treated at the Canberra Hospital during that period. Further, the plaintiff was having several medical problems and was being treated by a number of specialists, including undergoing surgery in 2011 at Westmead Hospital. Life in the Bennett household was chaotic during the period. By January 2013 a six-year period after the plaintiff’s birth was close to expiry. Because of the impending expiry of that six-year period, steps were taken to draft claims against the Calvary Hospital, the obstetrician who delivered the plaintiff and the radiologists who prepared an ultrasound report prior to the plaintiff’s birth, as well as proceedings against the Canberra Hospital. From that point on two sets of proceedings were on foot until the Calvary Hospital proceedings were resolved in February 2016.
27.The affidavit of Mr Bayliss dated 27 July 2016 identifies the following matters.
28.On 10 April 2013 the defendant received a personal injury claim notification form. The formidentified the “accident” as:
mismanagement of perinatal care leading to bowel perforation, the development of necrosis and sloughing in the vicinity of the transverse colon and subsequent ongoing bowel problems.
29.The injuries from the accident are described as:
- Perforation of bowel,
- Development of necrosis + sloughing in the vicinity of the transverse colon,
- The need for a colostomy,
- Bowel problems arising from the fact of the perforation,
- Bowel problems arising from the need for colostomy,
- Bowel problems arising from the development of necrosis plus sloughing in the vicinity of the transverse colon.
30.The form contains a specific question as to whether or not the claim is against a health service provider. In answer to the question “what did the health service provider do or not do which caused the injury or worsened a pre-existing injury?”, anannexure to the form provided:
Failure to adequately maintain [the plaintiff’s]oxygenation, permitted [the plaintiff]to sustain repeated and prolonged periods of oxygen desaturation, failed to diagnose choanal atresia in a timely manner, failed to properly interpret [the plaintiff’s]clinical signs and results of investigations as indicative of sepsis in a timely manner, failed to properly manage [the plaintiff’s]sepsis, failed to properly interpret [the plaintiff’s]clinical signs and results of investigations as indicative of possible bowel perforation in a timely manner, failed to properly investigate [the plaintiff]for possible bowel perforation in a timely manner, failed to arrange for surgical review in a timely manner, failed to diagnose bowel perforation in a timely manner and failed to properly manage [the plaintiff’s]bowel perforation.