Lewis v Martin[2024] QSC 81

Pleading

47. [47]
    The relevant paragraphs which are objected to are set out below within the larger paragraphs in which they are sited.

“75. By reason of the matters pleaded herein, the first defendant failed to exercise the reasonable care and skill she was obliged to and thereby breached her duty of care and/or the implied term of the first contract of treatment with the plaintiff by:

1. failing to perform the first procedure without due care and skill;
2. causing an oesophageal perforation;
3. failing to recognise and repair the oesophageal perforation intraoperatively;
4. failing, postoperatively, to maintain a high index of suspicion for infection and/or perforation;
5. failing to act upon and/or investigate the signs and symptoms of an infection, namely the oesophageal perforation, in a timely manner;
6. failing to diagnose and/or teat the perforation in a timely manner;
7. failing to consult a cardiothoracic surgeon upon recognition of oesophageal perforation, mediastinal collection and bilateral pleural effusions;
8. failing to transfer the plaintiff’s care to a cardiothoracic surgeon upon recognition of oesophageal perforation, mediastinal collection and bilateral pleural effusions;
9. failing to recognise that the mediastinal collection, by virtue of both its size and location, was such that it required drainage via thoracotomy at first instance;
10. failing to warn, inform and/or advise the plaintiff and/or the plaintiff’s husband as her nominated decision maker, of the treatment options available for a mediastinal collection, namely early/primary thoracotomy, and the risks associated with such treatment options.

75A. Had the first defendant not breached their duty of care in the wav outlined at paragraph 75:

1. the claimant would not have sustained the oesophageal perforation: and/or
2. the claimant’s mediastinal collection would have been identified and treated in a timely manner and at a point where the mediastinal collection was smaller and less complex: and/or

3. the claimant would have, either by choice or on advice, or by virtue of both, undergone primary thoracotomy as the first line of treatment for her mediastinal collection: and
4. the claimant's collection would have healed in a timely manner, thereby avoiding prolonged sepsis and resultant vagus nerve damage, which led to the remainder of the claimant’s injuries.

…

77. By reason of the matters pleaded herein, the third defendant failed to exercise the reasonable care and skill it was required to and thereby breached its duty of care to the plaintiff by:

1. failing to consult a cardiothoracic surgeon for the oesophageal perforation, mediastinal collection and bilateral pleural effusions;

(aa) failing to recognise that the mediastinal collection, by virtue of both its size and location, was such that it required drainage via thoracotomy at first instance;

(aaa) failing to warn, inform and/or advise the plaintiff and/or the plaintiff’s husband as her nominated decision maker, of the treatment options available for a mediastinal collection, namely early/primary thoracotomy, and the risks associated with such treatment options:

2. failing to transfer the plaintiffs care to a cardiothoracic surgeon to treat the oesophageal perforation, mediastinal collection and bilateral pleural effusions;
3. failing to perform the second procedure with due care and skill;
4. causing a further oesophageal perforation;
5. failing, postoperatively, to maintain a high index of suspicion for ongoing infection and/or ongoing perforation/leak;
6. failing to act upon and/or investigate the signs and symptoms of an ongoing infection and/or an ongoing leak/perforation in a timely manner;
7. failing to perform a thoracotomy in a timely manner.

77A. Had the third defendant not breached their duty of care in the way outlined at paragraph 77:

1. the claimant would have, either by choice or on advice, or by virtue of both, undergone primary thoracotomy as the first line of treatment for her mediastinal collection; and
2. the claimant’s collection would have healed in a timely manner, thereby avoiding prolonged sepsis and resultant vagus nerve damage, which led to the remainder of the claimant's injuries.”

Submissionsofthe parties

48. [48]
    The first defendant and the third defendant submit that the relevant amendments do not arise out of substantially the same facts as a cause of action for which relief has already been claimed in the proceeding.
49. [49]
    They correctly identify, as was conceded by the plaintiff, that each of the two pairs of amendments give rise to new causes of action. It is submitted that this does not form part of the same “story”, as that concept has been explained in the authorities. As with Borsato, it is submitted that the inclusion of a new failure to warn cause of action raises new facts which cannot be described as substantially arising out of the facts as currently pleaded.
50. [50]
    The first defendant and third defendant further submit that the Court would not consider it appropriate to grant leave to make the amendments, even if they arose out of substantially the same facts as a cause of action for which relief has already been claimed. This is by reason of three factors.
51. [51]
    First, there has been an unacceptable delay in this proceeding in the introduction of these amendments. They point to the fact that the relevant circumstances which are the subject of the amendments occurred in December 2018, which is now some five and a half years ago. At the time the amendment was first made, the delay was just over four and a-half years from the incident.
52. [52]
    The first defendant and the third defendant submit that not only is there delay in pursuing this ground, but there is no explanation provided for the delay. They point to Borsato^[25] at paragraph [17] where McMurdo J had considered a failure to provide a reasonable explanation for delay as a matter relevant to the exercise of the discretion against granting leave.
53. [53]
    The defendants point to the statutory notices provided on 31 January 2022 under the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”), which recorded at that date that the plaintiff was not alleging a failure to inform cause of action.^[26] That fact was relied upon as part of the relevant circumstances of there being a failure to explain the subsequent change of position of the plaintiff in now bringing a failure to inform case.
54. [54]
    Secondly, it is submitted that it would be futile to give leave to make the amendments because the plaintiff’s expert liability reports do not support the contention that in the exercise of reasonable care, the first defendant should have warned, informed, or advised the plaintiff or her husband as alleged in the amendments.
55. [55]
    Thirdly, it is submitted that the defendants have suffered prejudice by reason of the delay. No specific prejudice is deposed to, but the defendants rely, by analogy, on the principles identified in Brisbane South Regional Authority v Taylor (1996) 186 CLR 541, particularly at 548-9 and 555.^[27]

56. [56]
    I turn then to the plaintiff’s contentions. The plaintiff in this case accepts that the failure to warn amendments give rise to new causes of action, but submit that the amendments are of facts which arise substantially out of the facts already pleaded in support of an existing cause of action.
57. [57]
    In support of this submission, the plaintiff pointed to the context in which the objected to amendments are made.
58. [58]
    First, it was said that the first defendant did not contest that she was the person responsible for the primary treatment of the plaintiff and made the decision to undertake the second surgery on 9 December 2018. The plaintiff submits that the inference is open that she must have considered the second surgery appropriate at the time.
59. [59]
    Secondly, it was said that it appeared from the written consent form which was put into evidence that the husband of the plaintiff had provided the relevant consent as the next of kin for that second surgery.
60. [60]
    Thirdly, it was said that there was no dispute that the second surgery had taken place at the third defendant’s hospital.
61. [61]
    Fourthly, it did not appear to be disputed that the requirement of the second surgery was as a consequence of complications following the first surgery.
62. [62]
    Fifthly, reference was made to the expert reports of the plaintiff, namely of Dr Goldstein, which expressed the opinion that the alternative surgery of a thoracotomy was the appropriate surgery to be undertaken in the circumstances, as opposed to the second surgery which was actually undertaken. It was submitted that the engagement between the first defendant and third defendant on the one part, and the plaintiff on the other part, had relevantly commenced on 7 December 2018 and continued thereafter. The plaintiff alleged multiple breaches of duty in the management of her condition, and the injury and loss that was suffered was arising out of the same “story” or sequence of events.
63. [63]
    Sixthly, it was submitted that the policies underlying the applicable statute of limitations were not inappropriately undermined by allowing the amendments. The amendments simply add a ground of recovery arising out of a transaction or occurrence already in suit.
64. [64]
    In relation to whether it is appropriate to grant leave, it was submitted that there was no prejudice to the respondents in the pursuit of the new cause of action. The plaintiff pointed to the absence in any affidavit material of the first defendant deposing to having no recollection of any discussions with the plaintiff’s husband in respect of consent. It was pointed out that a relevant “consent form” for the second surgery formed part of the third defendant’s records.

65. [65]
    The plaintiff accepted that there had been some delay, that there had been a change of position from that recorded in the statutory notice filed as part of the pre-litigation requirements under the PIPA Act on 31 January 2022, and that no explanation had been provided for the delay in seeking the amendment. However, it was submitted that delay in the absence of an appropriate explanation would not, in the circumstances here, result in the exercise of the discretion against allowing an amendment which otherwise met the requirements of the relevant rule.

Determination of the contentions

66. [66]
    I will deal with the two issues separately and in turn.

3. (a)
   Did the facts advanced in the amendment substantially arise out of facts already pleaded in respect of an existing cause of action?

67. [67]
    I find that, in this case, the relevant amendments did substantially arise out of facts already pleaded in respect of an existing cause of action. My reasoning for this finding is as follows.
68. [68]
    First, an analysis of the unobjected to pleading, in my view, supports that the facts of the amendment substantially arise from facts already pleaded for other causes of action. I will use the pleading against the first respondent to illustrate this conclusion. Dealing with the first defendant, the following factual framework is present in the unobjected portions of the pleading:

• After the first operation and after the oesophageal perforation and mediastinal collection and bilateral pleural infusions had been identified, there was a failure to consult a cardiac surgeon;^[28]
• There was a corresponding failure to transfer the plaintiff’s care to a cardiac surgeon upon the recognition of the matters previously identified;^[29]
• At the same time, there was a failure to recognise that the mediastinal collection was in a form that required drainage via an alternative surgery known as thoracotomy, at first instance;^[30]
• If those breaches identified above had not occurred, the plaintiff’s mediastinal collection would have been identified and treated in a timely manner at a point when the collection was smaller and less complex;^[31] and
• The plaintiff’s mediastinal collection would have healed in a timely manner and thereby avoided prolonged sepsis and resultant vagus nerve damage.^[32]

69. [69]
    That framework contains existing allegations that a sub-specialist surgeon ought to have been consulted in the circumstances, that care of the plaintiff ought to have been transferred to that sub-specialist, and that the alternative surgery ought to have been undertaken at first instance. Each of those matters was then causative of, inter alia, the subsequent complications which occurred by the mediastinal collection not being addressed by the alternative surgery.

70. [70]
    In my view, the new facts clearly arise from the same story as revealed by the framework.
71. [71]
    What is being added is as follows:

• The first defendant failed to warn, inform and/or advise the plaintiff or her nominated decision-maker of the treatment options available for a mediastinal collection, namely early/primary thoracotomy, and the risk associated with such treatment options.^[33] This allegation has to be understood in the context of the unobjected to pleading that the thoracotomy was the form of alternative surgery which should have been undertaken instead of the second surgery.
• As a result of, inter alia, the above failure the claimant would have, either by choice or on advice, or by virtue of both, undergone primary thoracotomy as the first line of treatment for her mediastinal collection.^[34]

72. [72]
    What has been added as a positive plea in the form of a duty to advise and inform the plaintiff that the alternative was an available treatment option is a natural reflection of the existing unobjected to plea, namely that the performance of the first defendant’s duty included a duty to recognise that the alternative surgery should have been undertaken first, instead of the second surgery which was actually undertaken.
73. [73]
    In my view, the new facts must be seen as part of the same story arising from the unobjected to facts. Examined in this way, the amendments do not offend against any underlying policy considerations which underlie the Limitations of Actions Act 1974 (Qld).
74. [74]
    In Borsato, McMurdo J found that the particular facts underlying those new causes of action, being a failure to warn, did not substantially arise out of the same facts already pleaded. Each case turns on its own facts. In Borsato, the existing causes of action against the third to fifth defendants in that case concerned alleged negligence in the third and fourth defendant’s surgery. The addition of the failure to warn case in that proceeding raised new or substantially different causation and loss facts which were materially different to the facts which had been pleaded in respect of the existing causes of action. They involved, for the first time, an allegation that the negligent surgery would likely not have occurred at all. It was this material change in the facts which produced the substantially different causation and loss scenario.
75. [75]
    That is not the same case here.
76. [76]
    In this case, the causation counterfactual does not materially change. The unobjected to pleading is premised on the fact that the alternative surgery should have been undertaken instead of the second surgery. The unobjected counterfactual is that the collection would have healed in a timely manner and the complications from the second surgery would have been avoided.
77. [77]
    The new objected to facts operate on the same counterfactual.

78. [78]
    On this basis, Borsato is distinguishable.
79. [79]
    The above analysis applies equally to the position of the third defendant. Broadly similar allegations, both unobjected to and objected to, are made for the third defendant.^[35]
80. [80]
    An additional fact pleaded against the third defendant is that there was a failure to perform a thoracotomy in a timely manner.^[36] That fact was not alleged against the first defendant, presumably because the other pleas against the defendants were that a sub-specialist thoracic surgeon ought to have been consulted and the care of the plaintiff handed over to that sub-specialist. The pleaded case seems to proceed on the premise that the alternative surgery would have been undertaken by the sub-specialist if there had not been the pleaded breaches of duty.
81. [81]
    This additional fact merely further emphasises that the unobjected to pleading contains facts which allege that the alternative surgery ought to have been undertaken prior to the second surgery.

(b) Is the granting of leave appropriate?

82. [82]
    Moving on to the second issue, I find that it is appropriate to allow the amendments sought in the circumstances of this case. I have come to the conclusion based on the following factors.
83. [83]
    First, I accept that there has been delay in seeking to make these amendments. The first and third defendants are also correct that there has not been any real attempt to explain the reason for the delay. I accept that that this is a factor which is present and is one which weighs against the grant of leave.
84. [84]
    Secondly, I accept that there can be cases where the delay is of such a length that it is likely by its very existence to carry with it the implication of prejudice. Brisbane South Regional Health Authority v Taylor^[37] was a case in point where an extension to a time limit was sought. There, the delay had been some 16 years from the events underlying the causes of action. As has often been observed, delay of a lengthy period can have a tendency to deteriorate the quality of justice. What has been forgotten can rarely be shown.^[38]
85. [85]
    Lengthy delay can often be coupled with other evidence which manifest palpable prejudice. There may have been the loss of medical records which may have recorded salient facts in relation to advice which may or may not have been given. There may have been at the time of the relevant events little or no documentation in relation to advice which may or may not have been given. Often there will be affidavit material from a defendant involved indicating that they have little or no recollection of what advice may have been given in relation to particular procedures, or indeed no recollection of what their usual practice was at the time.
86. [86]
    The delay here is not of such a length, being under six years from the hearing and under five years from the filing of the amendments, that it would cause the inference of material prejudice against the defendants by the allowance of the amendments. There is a written consent form in existence for the second surgery. Nowhere on that consent form is the alternative surgery identified. There is no affidavit from the first defendant in particular, (or anybody else) deposing to an absence of a recollection of what occurred in relation to the decision-making process or the provision of advice in respect of the second surgery.

87. [87]
    Whilst it is true that the relevant 31 January 2022 pre-proceeding notices under the PIPA expressly identified that there was no failure to warn case being advanced, it is equally true that the general circumstances surrounding the care and treatment of the plaintiff, which specifically included the undertaking of the second surgery, was raised prior to the expiry of the three year limitation period. The pre-proceeding notices included express allegations to the effect that the alternative surgery ought to have been undertaken as a first priority, rather than the second surgery.^[39] This would necessarily have directed the first defendant and the third defendant’s attention to, at the very least, the thought processes and justification of the first defendant in relation to the undertaking of the second surgery rather than the alternative surgery.
88. [88]
    In all of those circumstances, even though the amendments were made after a period of delay, which was not adequately explained, the absence of substantial prejudice to the first defendant and third defendant, in my view, points firmly to the exercise of the discretion to allow the amendment.
89. [89]
    Thirdly, I do not accept that the making of the amendments will be futile. The argument put forward by the first defendant and the third defendant was that there is no expert evidence that there was a failure to warn, inform and/or advise in the terms pleaded.
90. [90]
    I accept the plaintiff’s counter-submission to this proposition. The plaintiff submits that the finding of a breach of the alleged duty is a finding of fact which the Court can reach in the absence of express expert opinion on the issue. It is ultimately a question for the judicial officer as the finder of fact as to whether there was an actionable failure to warn, inform and/or advise, and that fact finding task can be completed regardless of an absence of expert evidence to that effect.
91. [91]
    In any event, Dr Goldstein gives a medical opinion that the alternative surgery which should have been undertaken, as opposed to the second surgery. That evidence, if accepted, would self-evidently provide a basis for a finding that there was a failure to warn, inform and/or advise that the alternative surgery was the surgery which should have been undertaken.
92. [92]
    The existence of that evidentiary material by itself disposes of the futility submission. Whether that opinion will ultimately be accepted at trial is an entirely different question. I note that there is competing expert evidence to the effect that the second surgery was entirely appropriate at the time it occurred.

Conclusions

93. [93]
    As a result of the above reasoning, the first defendant’s and third defendant’s respective applications brought pursuant to r 379 of the UCPR to disallow or strike out paragraphs 75(j) and 75A(c) and 77(aaa) and 77A(a), respectively, will be dismissed. The two applications brought by the plaintiff for leave to make those amendments succeed. Leave to make each of the objected to amendments will be granted under r 376 of the UCPR.

94. [94]
    The orders of the Court will be that:

3. 1.
   The application of the first defendant filed 8 March 2024 be dismissed.

3. 2.
   The application of the third defendant filed 11 April 2024 be dismissed.

3. 3.
   The plaintiff is given leave to make the amendments which appear as paragraphs 75(j), 75A(c), 77(aaa) and 77A(a) of the Amended Statement of Claim filed 2 June 2023.